Global Challenges and the Law of the Sea [1st ed.] 9783030426705, 9783030426712

Table of contents :
Front Matter ....Pages i-xxiii
Introduction (Giuseppe Cataldi)....Pages 1-5
Front Matter ....Pages 7-7
Implementation of the Rules of the UNCLOS Through Universal and Regional Organizations (Mariko Kawano)....Pages 9-35
International Organizations and the Protection of the Marine Environment (Pradeep A. Singh)....Pages 37-58
The Arctic Ocean: Are We Ready to Govern a New Ocean? (Timo Koivurova, Stefan Kirchner, Pirjo Kleemola-Juntunen)....Pages 59-80
Regional Fisheries Management Organizations (Erik J. Molenaar)....Pages 81-109
Considerations on Some Global Institutional Challenges Within the Context of the Conservation and Management of Marine Living Resources (Fernando Correia Cardoso)....Pages 111-120
Market-Based Measures Against Illegal, Unreported and Unregulated Fishing in Indonesian Waters (Dita Liliansa)....Pages 121-143
Sea-Level Rise in Relation to International Law: A New Topic for the United Nations International Law Commission (Patrícia Galvão Teles)....Pages 145-157
The Impact of UN Sanctions on Commercial Shipping Activities (Richard L. Kilpatrick)....Pages 159-175
Security Council’s Contribution to the Evolution of the Law of the Sea: Avant Garde or Self-Limitation? (Kiara Neri)....Pages 177-190
The Challenges of the Commission on the Limits of the Continental Shelf (Aldino Santos de Campos)....Pages 191-202
UN Food and Agriculture Organization: Exercising Legal Personality to Implement the UN Convention on the Law of the Sea (Anastasia Telesetsky)....Pages 203-220
Maritime Surveillance of the EU External Sea Borders: Extensive Approaches and Operational Challenges to the Principles of Coastal and Flag State Jurisdiction in Italy (Marco Fantinato)....Pages 221-235
Front Matter ....Pages 237-237
Stakeholders in Dispute Settlement Under the UN Convention on the Law of the Sea (Natalie Klein)....Pages 239-261
The Legal Status of the São Pedro and São Paulo Archipelago in Light of Article 121 of UNCLOS and the South China Sea Arbitral Award: Uncontested Right to EEZ and Continental Shelf or Brazilian “Creeping Jurisdiction”? (Victor Alencar Mayer Feitosa Ventura, Eduardo Cavalcanti Mello Filho)....Pages 263-285
Implementing the Law of the Sea: Russia and Arbitrations Under Annex VII to UNCLOS (Grant Kynaston, Rebecca Brown)....Pages 287-317
Front Matter ....Pages 319-319
The Conservation and Sustainable Use of the Ocean in Areas Beyond National Jurisdiction: Where Do We Stand? (Miguel de Serpa Soares)....Pages 321-332
Regulating the Common Heritage of Mankind: Challenges in Developing a Mining Code for the Area (Hannah Lily, Stephen E. Roady)....Pages 333-349
Three Structural Pillars of the Future International Legally Binding Instrument on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction (Catherine Blanchard, Otto Spijkers, Wen Duan)....Pages 351-378
The European Union and the Future International Legally Binding Instrument on Marine Biodiversity Beyond National Jurisdiction (Pascale Ricard)....Pages 379-399
The EU and the UN Legally-Binding Instrument on the Areas Beyond National Jurisdiction (Luigimaria Riccardi)....Pages 401-422
Solving the Potential Conflict: High Seas Marine Protected Areas and Sovereign Rights Over the Continental Shelf Beyond 200 Nautical Miles (Inês Aguiar Branco)....Pages 423-442
North East Atlantic Marine Protected Areas Beyond National Jurisdiction. Geographical and Material Scope (Marta Sobrido-Prieto)....Pages 443-467

Citation preview

Marta Chantal Ribeiro Fernando Loureiro Bastos Tore Henriksen  Editors

Global Challenges and the Law of the Sea

Global Challenges and the Law of the Sea

Marta Chantal Ribeiro • Fernando Loureiro Bastos • Tore Henriksen Editors

Global Challenges and the Law of the Sea

Editors Marta Chantal Ribeiro Faculty of Law University of Porto Porto, Portugal

Fernando Loureiro Bastos Faculty of Law University of Lisbon Lisbon, Portugal

Tore Henriksen Faculty of Law UiT The Arctic University of Norway Tromsoe, Norway

ISBN 978-3-030-42670-5 ISBN 978-3-030-42671-2 https://doi.org/10.1007/978-3-030-42671-2

(eBook)

© Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Foreword

It is an honour for me to write a foreword for this volume on Global Challenges and the Law of the Sea based on the contributions to the VIIth Colloquium of the International Association of the Law of the Sea (hereinafter “the AssIDMer”), held in Lisbon, Portugal, on 20–21 September 2018. I had the privilege of participating in this Colloquium of the AssIDMer, which was co-hosted by the University of Porto, the University of Lisbon and UiT the Arctic University of Norway. The 1982 United Nations Convention on the Law of the Sea (hereinafter “UNCLOS” or “the Convention”) is one of the most complex international treaties that have ever been negotiated. While UNCLOS reaffirmed many provisions of customary international law codified in the 1958 Geneva Conventions, its main achievement was progressive development of international law. UNCLOS declares the seabed, ocean floor and their mineral resources beyond limits of national jurisdiction the common heritage of mankind and establishes the international regime governing activities in that area, introduces concepts of exclusive economic zone and archipelagic waters, clarifies the regime governing passage through straits used for international navigation, defines the legal regime of the continental shelf and establishes criteria to be used by coastal States in establishing the outer limits of their continental shelf, contains extensive provisions concerning the protection and preservation of the marine environment and provides for a mechanism, in the form of compulsory procedures entailing binding decisions, that is supposed to ensure compliance with the provisions of the Convention. While UNCLOS represents the best effort on the part of international community of States to address governance issues that required solution at the time of its conclusion, the Convention did not resolve all of them. Consequently, while UNCLOS quite rightly is being called “Constitution for the oceans” and there is no doubt that conclusion of the Convention constituted a remarkable achievement, it should also be understood that its resulting oceans governance regime still has gaps which need to be addressed. This was clearly demonstrated by the fact that relatively shortly after the conclusion of UNCLOS, two implementing agreements had to be negotiated to supplement its provisions, namely the 1994 Agreement Relating to the v

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Foreword

Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December and the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. It should also be understood that UNCLOS cannot provide and has never been intended to provide an answer to every problem that arises. UNCLOS is a framework convention. As a framework convention, which enjoys almost universal acceptance, it has proved to be a flexible instrument serving as a solid legal foundation for the further progressive development of the international law of the sea. UNCLOS therefore should be viewed as a solid foundation for international governance of maritime activities, which is an ongoing law-making process; as a platform on which new emerging issues relating to the international governance of activities in the oceans are to be addressed, gaps closed and deficiencies, if discovered, to be corrected. For many years, oceans have been viewed as capable of supporting any human activity and their resources have been considered unlimited. In our days, it is universally recognized that increasing human activities are pushing the oceans to the limits of their ecological carrying capacity that marine resources are exhaustible and that urgent actions are to be taken to ensure their sustainable use. UNCLOS, which is now more than forty years old, does not address a number of emerging issues such as the conservation of biodiversity, CO2 sequestration, the use of marine genetic resources, the issues arising in connection with global warming and rapidly increasing demand for energy sources. UNCLOS therefore needs to be supplemented by additional regulatory regimes to meet these new challenges. The need for further regulatory regime supplementing the Convention was confirmed, when on 24 December 2017 the General Assembly of the United Nations by resolution A/RES/249 decided to convene an intergovernmental conference “to elaborate the text of an internationally legally binding instrument under the United Nations Convention for the Law of the Sea on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction”.1 Multiple complex issues that need to be resolved in this instrument were discussed at the VIIth Colloquium of the AssIDMer and presentations made in this regard are included in Part III of this volume. The international community of States should seek solution to these emerging issues through the process of international governance within the framework of relevant existing institutions, first of all the United Nations, its agencies and related organizations that provide fora where States and other actors can engage in dialogues and negotiations which, if successful, should result in new norms and regulatory regimes supplementary to the one established by the Convention and facilitating its implementation.

1

General Assembly resolution 72/249, A/RES/248, of 24 December 2017.

Foreword

vii

As pointed out by Patricia Birnie, Alan Boyle and Catherine Redgwell in their book on “International Law and the Environment”, the term “governance” when applied to the United Nations and its agencies implies rather less than global government, a task for which no international organization is equipped, but more the power to determine policy or initiate the process of international law-making. At the very least, it captures the idea of a community of States with responsibility for addressing common problems through a variety of political processes which are inclusive in character, and which to some degree embody a limited sense of collective interest, distinct in specific cases from the particular interests of individual States.2 In our days, conservation and sustainable use of many of ocean resources should be viewed as a matter of common concern. As noted by Birnie, Boyle and Redgwell, the concept of “common concern” implies that international community of States as a whole has a legitimate interest in such resources of global significance. It follows from the above that the international community of States has a common responsibility to ensure conservation and sustainable use of these resources and that individual States have legal obligation vis-a-vis the whole international community of States regarding the conservation and sustainable use of these resources and that such obligation can be enforced by or on behalf of that community of States.3 The VIIth Colloquium of the AssIDMer presented an excellent opportunity to look in detail at some of the global challenges that we face today in ocean governance. The presentations made at the Colloquium included in the present volume constitute a reach overview of recent developments in various areas of ocean affairs and provide their thorough analyses. They address the role of the international organizations in the implementation and development of the law of the sea (Part I) and the issue of protection and conservation of the areas beyond national jurisdiction (Part III). As to “superpowers, international courts and the law of the sea”, an issue addressed in Part II of this volume, it was highlighted in one of my recent publications on the subject that judicial institutions constitute an integral element of this governance process by providing authoritative guidance on what the law of the sea is and by fostering the progressive development of international law. In this context, it is crucial that international courts and tribunals continue to offer to States an efficient and fair administration of justice that facilitates the peaceful and sustainable resolution of conflicts. At the same time, there is the issue of use of international judicial proceedings by States for political purposes. It is important to recognize that such cases can place international courts and tribunals in a difficult position. The function of international judicial bodies is to assist the parties in the peaceful settlement of their disputes, not to aggravate disputes. Faced with politically motivated requests, it is incumbent

2 P. Birnie, A. Boyle, C. Redgwell (2009) International Law and the Environment. Third Edition, Oxford University Press, pp. 152-154. 3 Id., pp. 203-204.

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Foreword

upon international judicial institutions to exercise self-restraint and to restrict themselves to passing judgement on a dispute only to the extent that the Convention and the States entrust them with jurisdiction. This does not mean that judicial bodies can sidestep their duty to pass comprehensive judgement on cases validly submitted to them. However, the need for judicial self-restraint where appropriate needs to be emphasized.4 I am confident that this volume constitutes an important contribution to efforts of international community to achieve a comprehensive fare governance of ocean affairs. International Tribunal for the Law of the Sea, Hamburg, Germany New York, USA May 2019

4

Vladimir Golitsyn

Golitsyn (2019) Adjudication of maritime disputes. In: Elvik G, Clifton M-J, Haas T, Lourenço L, Schwiesow K (eds) The art of judicial reasoning, festschrift in honour of carl baudenbacher. Springer International Publishing, Cham, pp 207–208.

Preface

The international law of the sea is one of the most dynamic areas of contemporary international law. The radical transformation of international law of the sea that began in 1945 with the emergence of the legal concept of continental shelf did not end in 1982 with the conclusion of the negotiations on the United Nations Convention on the Law of the Sea. The ‘Constitution of the Oceans’, as a framework convention, provides adequate responses to the international legal regulation of a very diverse range of matters, but, at the same time, shows the limitations arising from the historical epoch in which it was negotiated. It should be stressed that a number of legal problems have arisen in recent decades which require innovative legal solutions and imply a balance between global interests, sovereign powers and the jurisdiction of coastal States. Relevant examples are the need to find regional and global legal responses to the preservation of marine biodiversity, the effects that the sea level rise could have on the terrestrial territory of States, on the demarcation lines of their spaces and on the forced displacement of their populations, the transformation of the Arctic frozen space into an ocean open to international navigation and the exploitation of living and non-living natural resources. This book has been organized and structured as a contribution to the understanding of the tension arising from the need to provide innovative legal solutions to new and complex issues of a global scope and nature and the relevance of international legal concepts that were created and established by State practice when the sea was an endless space and timid progress was made regarding the conservation of living resources. The first readers of this volume are international lawyers interested in following the evolution of some important areas of international law of the sea, in particular the role played for its progressive development by international organizations and conflict resolution mechanisms as well as the current challenges and achievements on the conservation and sustainable use of areas beyond national jurisdiction. Considering the way in which chapters have been structured and written, it may be equally suited to readers interested in the academic literature on the functioning of international regimes applicable to the seas and oceans as well as

ix

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Preface

the distribution of power amongst international entities and States in maritime spaces. The volume is based on the contributions that were initially presented at the VIIth Colloquium of the AssIDMer (International Association of the Law of the Sea), which took place in Lisbon on 20–21 September 2018. The draft versions of the chapters were subject to peer review by members of the scientific committee of the Colloquium and renowned scholars before being approved for publication. The final version of the chapters is now presented, divided into three thematic parts. The first part includes a presentation of examples of the role of international organizations in ocean governance. It includes twelve chapters covering a very diverse set of matters, both materially and geographically, demonstrating the importance that the coordinated actions of States have in obtaining harmonized solutions for the pursuit of activities in maritime spaces in the fields of navigation, fisheries or maritime security. The second part involves the way in which conflict resolution mechanisms may be relevant to the understanding of the contents of the international law of the sea and the international legal framework for the action of the great maritime powers. It is composed of three chapters, examining stakeholders’ role in dispute settlement, the position taken by China and the Russian Federation regarding international litigation in maritime spaces and how the South China Sea Award may be relevant to the debate on the international legal concepts of rock and island. The third part is an exposition of the way the question of environmental protection, conservation and sustainable use of areas beyond national jurisdiction is currently being discussed. The seven chapters of this part report on the progress of the ongoing negotiations for a new high sea international legal regime and the establishment and operationalization of environmental regimes in international maritime spaces. The editors of this volume express their gratitude to the International Association of the Law of the Sea, in the person of its President, Professor Giuseppe Cataldi, for the support given to the publication of this volume; to all peer reviewers for their dedication in contributing to the quality of diverse chapters; to the Fundação Oceano Azul, in the person of its President, Dr. José Soares dos Santos, and CEO Dr. Tiago da Pitta e Cunha; to the Jebsen Centre for the Law of the Sea (UiT the Arctic University of Norway); to the Foundation for Science and Technology (Portugal); to the University of Porto and to the ICJP—Instituto de Ciências Jurídico-Políticas (Faculty of Law of the University of Lisboa) for the earlier support given to the Colloquium which formed the basis for this volume. Porto, Portugal Lisbon, Portugal Tromsoe, Norway 18 October 2019

Marta Chantal Ribeiro Fernando Loureiro Bastos Tore Henriksen

Contents

1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Giuseppe Cataldi

Part I 2

3

1

The Role of the International Organizations in the Implementation and Development of the Law of the Sea

Implementation of the Rules of the UNCLOS Through Universal and Regional Organizations . . . . . . . . . . . . . . . . . . . . . . Mariko Kawano

9

International Organizations and the Protection of the Marine Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pradeep A. Singh

37

4

The Arctic Ocean: Are We Ready to Govern a New Ocean? . . . . . . Timo Koivurova, Stefan Kirchner, and Pirjo Kleemola-Juntunen

59

5

Regional Fisheries Management Organizations . . . . . . . . . . . . . . . . Erik J. Molenaar

81

6

Considerations on Some Global Institutional Challenges Within the Context of the Conservation and Management of Marine Living Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Fernando Correia Cardoso

7

Market-Based Measures Against Illegal, Unreported and Unregulated Fishing in Indonesian Waters . . . . . . . . . . . . . . . . . . . 121 Dita Liliansa

8

Sea-Level Rise in Relation to International Law: A New Topic for the United Nations International Law Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 Patrícia Galvão Teles xi

xii

Contents

9

The Impact of UN Sanctions on Commercial Shipping Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Richard L. Kilpatrick

10

Security Council’s Contribution to the Evolution of the Law of the Sea: Avant Garde or Self-Limitation? . . . . . . . . . . . . . . . . . . 177 Kiara Neri

11

The Challenges of the Commission on the Limits of the Continental Shelf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 Aldino Santos de Campos

12

UN Food and Agriculture Organization: Exercising Legal Personality to Implement the UN Convention on the Law of the Sea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 Anastasia Telesetsky

13

Maritime Surveillance of the EU External Sea Borders: Extensive Approaches and Operational Challenges to the Principles of Coastal and Flag State Jurisdiction in Italy . . . . . . 221 Marco Fantinato

Part II

Superpowers, International Courts and the Law of the Sea: Challenges for the Global Oceans Regime

14

Stakeholders in Dispute Settlement Under the UN Convention on the Law of the Sea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239 Natalie Klein

15

The Legal Status of the São Pedro and São Paulo Archipelago in Light of Article 121 of UNCLOS and the South China Sea Arbitral Award: Uncontested Right to EEZ and Continental Shelf or Brazilian “Creeping Jurisdiction”? . . . . . . . . . . . . . . . . . . 263 Victor Alencar Mayer Feitosa Ventura and Eduardo Cavalcanti Mello Filho

16

Implementing the Law of the Sea: Russia and Arbitrations Under Annex VII to UNCLOS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287 Grant Kynaston and Rebecca Brown

Part III

The Protection and Conservation of the Areas Beyond National Jurisdiction: Where Do We Stand?

17

The Conservation and Sustainable Use of the Ocean in Areas Beyond National Jurisdiction: Where Do We Stand? . . . . . . . . . . . 321 Miguel de Serpa Soares

18

Regulating the Common Heritage of Mankind: Challenges in Developing a Mining Code for the Area . . . . . . . . . . . . . . . . . . . . . 333 Hannah Lily and Stephen E. Roady

Contents

xiii

19

Three Structural Pillars of the Future International Legally Binding Instrument on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351 Catherine Blanchard, Otto Spijkers, and Wen Duan

20

The European Union and the Future International Legally Binding Instrument on Marine Biodiversity Beyond National Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379 Pascale Ricard

21

The EU and the UN Legally-Binding Instrument on the Areas Beyond National Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401 Luigimaria Riccardi

22

Solving the Potential Conflict: High Seas Marine Protected Areas and Sovereign Rights Over the Continental Shelf Beyond 200 Nautical Miles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423 Inês Aguiar Branco

23

North East Atlantic Marine Protected Areas Beyond National Jurisdiction. Geographical and Material Scope . . . . . . . . . . . . . . . . 443 Marta Sobrido-Prieto

About the Editors

Marta Chantal Ribeiro Assistant Professor of public law, with tenure, at the Faculty of Law, University of Porto and Principal Investigator at the Law of the Sea Research Group of the Interdisciplinary Centre of Marine and Environmental Research (CIIMAR, University of Porto) Fernando Loureiro Bastos Associate Professor of public law at the Faculty of Law, University of Lisbon. Head of Research Group (HRG) on International and European Law of the Lisbon Centre for Research in Public Law. Director of Studies of the SPDI—Sociedade Portuguesa de Direito Internacional (Portuguese Branch of the International Law Association). Chairman of the Institute of Legal Cooperation of the Faculty of Law, University of Lisbon Tore Henriksen Professor of law at the Faculty of Law, UiT the Arctic University of Norway (since 2008). Director of the Norwegian Centre for the Law of the Sea (previously K. G. Jebsen Centre for the Law of the Sea)

xv

Abbreviations

1995 FSA

2030 Agenda Abidjan Convention

ABMT ABNJ AC ACDS AEPS AG AHWG AMSA AMSP APEI APFIC ASEAN AWNJ AWPPA Barcelona Convention

BBNJ BIMCO

Agreement for the Implementation of the Provisions of the UN Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 2030 Agenda for Sustainable Development Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region Area-based management tools Areas Beyond National Jurisdiction Arctic Council ASEAN Catch Documentation Schemes Arctic Environmental Protection Strategy 1991 Attorney General Ad Hoc OICP Working Group Arctic Marine Shipping Assessment Arctic Marine Strategic Plan and Unregulated Fishing Areas of Particular Environmental Interest Asia-Pacific Fishery Commission Association of Southeast Asian Nations Areas within national jurisdiction Arctic Waters Pollution Prevention Act Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean Biodiversity Beyond National Jurisdiction Baltic and International Maritime Council xvii

xviii

Bucharest Convention BWM

CAMLR CAO CB&TT CBD CCAMLR CCSBT CCZ CEP CFMS CITES CLCS CMS COBSEA COFI COLREGs COMAR COMHAFAT-ATLAFCO COP COREP CPPS CRFM CS CTMFM DOALOS DPRK East Asian Seas Action Plan

Abbreviations

Convention on the Protection of the Black Sea against Pollution International Convention for the Control and Management of Ships’ Ballast Water and Sediments Convention on the Conservation of Antarctic Marine Living Resources Central Arctic Ocean Capacity-Building and the Transfer of Marine Technology Convention on Biological Diversity Commission for the Conservation of Antarctic Marine Living Resources Commission for the Conservation of Southern Bluefin Tuna Clarion-Clipperton Fracture Zone Caspian Environment Programme Conservation and management of fish stocks Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973 Commission on the Limits of the Continental Shelf Convention on the Conservation of Migratory Species of Wild Animals Coordinating Body on the Seas of East Asia FAO Committee on Fisheries International Regulations for Preventing Collisions at Sea Common Foreign and Security Policy Working Party on the Law of the Sea Ministerial Conference of Fisheries Cooperation among African States Bordering the Atlantic Conference of the Parties Regional Commission of Fisheries of Gulf of Guinea Permanent Commission for the South Pacific Caribbean Regional Fisheries Mechanism Continental Shelf Joint Technical Commission of the Maritime Front United Nations Division for Ocean Affairs and the Law of the Sea Democratic People’s Republic of Korea Action Plan for the Protection and Development of the Marine Environment and Coastal Areas of the East Asian Seas Region

Abbreviations

EBSA ECCAS ECJ EEZ EFCA EIA EIS EMMP EU FAO FAO Compliance Agreement

FAO PSMA

FCWC FFA GATT GESAMP GFCM HELCOM HIMI HR HS IAEA IATTC Ibid. ICCAT ICES ICJ ICP ICRW Id. IgC

xix

Ecologically or biologically significant marine area Economic Community of Central African States Court of Justice of the European Union Exclusive Economic Zone European Fisheries Control Agency Environmental impact assessment Environmental impact statement Environmental Management and Monitoring Plan European Union Food and Agricultural Organization of the United Nations Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas of 1993 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal Unreported and Unregulated Fishing of 2009 Fishery Committee of the West Central Gulf of Guinea Pacific Islands Forum Fisheries Agency General Agreement on Tariffs and Trade Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection General Fisheries Commission for the Mediterranean Baltic Marine Environment Protection Commission—Helsinki Commission Heard Island and McDonald Islands High Representative for Foreign Affairs and Security Policy High seas International Atomic Energy Agency Inter-American Tropical Tuna Commission Ibidem International Commission for the Conservation of Atlantic Tunas International Council for the Exploration of Seas International Court of Justice United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea International Convention for the Regulation of Whaling 1946 Idem Intergovernmental Conference

xx

IGC IHO ILA ILBI

ILC ILM IMCO IMO INPFC IOC IOs IOSEA IOTC IPHC IPOA-IUU

IRISL ISA ITLOS IUCN IUU IWC JCPOA Jeddah Convention JNRFC Kuwait Convention

LC/LP

Lima Convention

Abbreviations

Intergovernmental conference on marine biodiversity of areas beyond national jurisdiction International Hydrographic Organization International Law Association International legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction United Nations International Law Commission International Legal Materials International Maritime Consultative Organization International Maritime Organization International North Pacific Fisheries Commission Intergovernmental Oceanographic Commission (of the UNESCO) International organizations Indian Ocean–South-East Asian Marine Turtle memorandum of understanding Indian Ocean Tuna Commission International Pacific Halibut Commission International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing Islamic Republic of Iran Shipping Lines International Seabed Authority International Tribunal for the Law of the Sea International Union for Conservation of Nature and Natural Resources Illegal, unreported and unregulated Fishing International Whaling Commission Joint Comprehensive Plan of Action Convention for the Conservation of the Red Sea and the Gulf of Aden Environment Joint Norwegian–Russian Fisheries Commission Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 and the London Protocol 1996 Convention for the Protection of the Marine Environment and Coastal Area of the Southeast Pacific

Abbreviations

LTC MARPOL MEPC MGRs/MGR MPAs/MPA MSC MSR NAFO NAMMCO NASCO NATO NEAFC NEAFC Convention NGO nm NOAA Noumea Convention

NOWPAP

NPAFC NPFC NPOA-IUU OCS OICP OJ OLDEPESCA OSPAR OSPESCA P&I Clubs P5+1 PERSGA

xxi

Legal and Technical Commission of the ISA International Convention for the Prevention of Pollution from Ships Marine Environment Protection Committee (of the IMO) Marine genetic resources Marine protected area Maritime Safety Committee (of the IMO) Marine scientific research Northwest Atlantic Fisheries Organization North Atlantic Marine Mammal Commission North Atlantic Salmon Conservation Organization North Atlantic Treaty Organization North East Atlantic Fisheries Commission Convention on future multilateral cooperation in the North East Atlantic Fisheries Non-governmental organisation Nautical miles National Oceanic and Atmospheric Administration Convention for the Protection of the Natural Resources and Environment of the South Pacific Region Action Plan for the Protection, Management and Development of the Marine and Coastal Environment of the Northwest Pacific Action Plan North Pacific Anadromous Fish Commission North Pacific Fisheries Commission National Plan of Action to Prevent, Deter and Eliminate IUU Fishing Continental shelf beyond 200 nm Open-ended Informal Consultative Process on Oceans and the Law of the Sea Official Journal Latin American Organization for Fisheries Development Convention for the Protection of the Marine Environment of the North-East Atlantic Central American Fisheries and Aquaculture Organization Protection and Indemnity Clubs Permanent Five Members of the Security Council, and Germany, European Union Regional Organization for the Conservation of the Environment in the Red Sea and Gulf of Aden

xxii

PICES PPME PrepCom PSC PSM Agreement

PSSA PT PBR REA REC ReCAAP RECOFI REIO REMP REO RFMA RFMOs/RFMO RFVR RIO ROPME RPOA-IUU

RSP SADC SDG SEA SEAFDEC SEAFO SFRC SHADE group SIDS SIKPI SIOFA SIPI SIUP

Abbreviations

North Pacific Marine Science Organization Protection and preservation of the marine environment Preparatory Committee established by General Assembly resolution 69/292 Pacific Salmon Commission Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing Particularly Sensitive Sea Areas PT Pusaka Benjina Resources Regional arrangement for the protection and preservation of the marine environment Regional environmental convention Agreement on Combating Piracy and Armed Robbery against Ships in Asia Regional Commission for Fisheries Regional Economic Integration Organization Regional Environmental Management Plan Regional organization for the protection and preservation of the marine environment Regional fisheries management arrangements Regional Fisheries Management Organizations Regional Fishing Vessels Record Regional Integration Organization Regional Organization for the Protection of the Marine Environment Regional Plan of Action to Promote Responsible Fishing Practices including Combating IUU Fishing in the Region Regional Seas Programmes Southern African Development Community Sustainable development goals Strategic environmental assessment Southeast Asian Fisheries Development Center South East Atlantic Fisheries Organisation Sub-Regional Fisheries Commission Shared Awareness and Deconfliction group Small island developing States Surat Izin Kapal Pengangkut Ikan Southern Indian Ocean Fisheries Agreement Surat Izin Penangkapan Ikan Surat Izin Usaha Perikanan

Abbreviations

SOLAS SPLOS SPRFMO SWIOFC Tehran Convention TEU TFG UN UNCED UNCLOS UNEP UNESCO UNFS Agreement

UNGA UNSC UNSC Res UNTS US UVI VGFSP WCPFC

WECAFC WG Working Group

WTO

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International Convention for the Safety of Lives at Sea State Parties to the 1982 United Nations Convention on the Law of the Sea South Pacific Regional Fisheries Management Organisation South West Indian Ocean Fisheries Commission Framework Convention for the Protection of the Marine Environment of the Caspian Sea Treaty of the European Union Transitional federal government, Republic of Somalia United Nations United Nations Conference on Environment and Development United Nations Convention on the Law of the Sea 1982 United Nations Environment Programme United Nations Educational, Scientific and Cultural Organization United Nations Agreement for the Implementation of the Provisions of the Convention relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks United Nations General Assembly United Nations Security Council United Nations Security Council Resolution United Nations Treaty Series United States of America Unique vessel identifier Voluntary Guidelines for Catch Documentation Schemes Western and Central Pacific Fisheries Commission |Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean Western Central Atlantic Fishery Commission Working group Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction World Trade Organization

Chapter 1

Introduction Giuseppe Cataldi

Abstract AssIDMer was established, in 2001, exactly for the purpose of promoting research activities on issues relating to the Law of the Sea by academics, civil servants and legal practitioners. It is an honor, therefore, for its President, to make some general points on the topic of “Global Challenges and the Law of the Sea”, which are meant to constitute a basic background premise to the chapters that follow. First of all, the maritime issues herein discussed illustrate the vitality of the Law of the Sea, even if an element that can be considered common to many current issues of this topic is the rapid aging of international legal instruments available. Secondly, a free and open maritime order based on the rule of law must be considered as a cornerstone for the stability and prosperity of the international community; this implies that the old unilateralist ethics of the “creeping jurisdiction” must today give way to the demands of co-operation imperatives that are functionally necessary for the common interests of the international community. Finally, protection of marine environment and resources is an emerging key priority at global level; in particular, it has to be stressed that the deep sea represents the world’s largest environment: though largely unexplored, it provides for one of the highest levels of biodiversity on our planet and for a wide variety of ecosystem services. It is an honor for the President of the “International Association of the Law of the Sea” (AssIDMer), to write a brief Introduction to this volume, in which most of the chapters enclosed reproduce the papers submitted at the Association’s seventh ordinary Colloquium, which took place in Lisbon in September 2018. The intention, in the following pages, is simply to make some general points on the topic of “Global Challenges and the Law of the Sea” which came to mind after reading the thorough and interesting chapters herein contained. The general points, which are meant to constitute a basic background premise to the specific developments that will be provided below in the volume, are as follows:

G. Cataldi (*) University of Naples “L’Orientale”, Department of Human and Social Sciences, Napoli, Italy e-mail: [email protected] © Springer Nature Switzerland AG 2020 M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea, https://doi.org/10.1007/978-3-030-42671-2_1

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(a) The maritime issues herein discussed illustrate the vitality of the Law of the Sea. For a long time, it was wrongly believed that with the entry into force of the United Nations Convention on the Law of the Sea (UNCLOS), research and debate on the issue, so intense during the years of the Third United Nations Conference on the Law of the Sea, were old-fashioned and obsolete, the codification having provided all the necessary answers. If we go through recent books, articles and proceedings on the Law of the Sea, we can see that the younger generations of European internationalists seem to have long forgotten the subject. They appear to have left it to their older Professors, preferring more fashionable themes, such as environmental law, human rights and international criminal law. On the contrary, practice has shown the inaccuracy of the assumptions underlying this behavior and it is therefore appropriate that younger generations of researchers deal with and study this area of International Law. It is a comforting sign of a change in attitude that the editors have been able to obtain quality contributions to this volume from so many young researchers. (b) There is one element that can be considered common to many current issues of the Law of the Sea: the rapid aging of international legal instruments available. First of all, we still have the habit of talking about UNCLOS as the “new Law of the Sea”, even though it was opened for signature nearly 40 years ago, while during this same period the structure and the very composition of the international community have undergone profound changes following phenomena that have marked an era: the fall of the Berlin Wall, the existence of new technological instruments in what is called “globalization”, the birth of the World Trade Organization, an increased sensitivity to the demands of the individual vis-à-vis States and multinational companies, the events of 11 September 2001, disasters such as Chernobyl or Fukushima, the so called “Arab Spring” and the consequent migration issues. All these occurrences necessarily determined the birth and development of a series of new and unforeseen problems which must be addressed by legal instruments forged in and for a different historical-political context. It is worth noting, for example, that biological diversity, and therefore the need for its protection, is nearly absent in UNCLOS, which takes into consideration the “conservation of biological resources” for the sole purpose of ensuring its optimal use based on the criterion of maximum sustainable exploitation (maximum sustainable yield—UNCLOS, Arts 61 and 62). The notion of biodiversity has been included in the international legal system since the last decade of the twentieth century, with the adoption of the UN Convention on Biological Diversity (UN, 1992). (c) A free and open maritime order based on the rule of law is a cornerstone for the stability and prosperity of the international community. It is therefore crucially important that freedom of navigation, connectivity among regions and cooperation on capacity building is ensured among all coastal States. The different nature of criminal activities at sea calls for a diversified response and a comprehensive analysis of all its aspects. The continued instability in several areas of the Middle East, Africa and Asia has resulted in an unprecedented displacement of people on a global level and an increased influx of migrants and refugees in

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Europe, especially through its South-eastern and Mediterranean borders. The management of the migration crisis is a complex process that requires significant capacities and cooperation/coordination amongst several stakeholders (humanitarian aid and civil protection actors, EU and UN agencies, NGOs involved on day-to-day management of the migration crisis, national authorities). (d) Unfortunately, we are currently witnessing an exacerbation of interstate conflicts. In Europe, sovereign tendencies and the crisis of multilateralism are tangible evidence, but elsewhere too we are not witnessing any steps forward on the path of cooperation. Concerning in particular the Law of the Sea, the question of the South China Sea is the best (but not the only) example. Unilateralist interpretations of institutions such as the Exclusive Economic Zone (EEZ) or the right of innocent passage are increasing, as are, unfortunately, unilateral initiatives that are contrary to UNCLOS as well as the United Nations Charter and international customary law. Once again, the hope is that cooperation, especially through joint initiatives for the exploitation of living or mineral wealth, can be affirmed for the benefit of local communities as well as of the entire international community. For example, we must ask whether the delimitation of marine spaces is always necessary or if, in the interest of coastal communities, another option could be more appropriate as a first choice, namely the joint exploitation of resources or, if this is difficult, cooperation on specific issues such as the protection of the marine environment, marine scientific research, the fight against terrorism, without prejudice to States’ respective claims. Delimitation does not make much sense, in other words, when it comes to delimiting resources rather than communities. Unfortunately, the desire to assert sovereign power imposes other priorities. The old unilateralist ethics of the “creeping jurisdiction” that historically underlies the Law of the Sea, in our opinion, must today give way to the demands of co-operation imperatives that are functionally necessary for the common interests of the international community, including optimal management of resources, safeguarding navigation and international trade, preservation and protection of the marine environment, management of migratory flows, the fight against piracy, terrorism and transnational crime. (e) Protection of marine resources is an emerging key priority at global level, with food security in much of the developing as well as developed world dependent on stopping the decline in fish stocks driven by overfishing and climate change. It is estimated that about one-fifth of all fish taken from our oceans have been fished illegally or lack any control, as a result of widespread illegal, unreported and unregulated (IUU) fishing. The economic development and welfare of island and coastal nations world-wide is threatened both by IUU fishing and illegal trafficking of every sort. Illegal fishing also exacerbates the problem of overfishing, because IUU vessels frequently operate in marine protected areas (MPAs) where a total fishing ban has been imposed. Indeed, as in marine nursery areas, within MPAs fishing activities are often banned all year round. In the past decade Satellite-based maritime surveillance has proven its potential to contribute efficiently to maritime surveillance, but there is much scope for improvement

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regarding its integration in Law enforcement sectors, such as IUU fishing and monitoring of illegal fishing vessels. (f) The degradation of the marine environment also presents crucial security challenges in terms of disruption of national economies, potential displacement of people, degeneration of national identities and the crucially important aspect of loss of lives. The rising of sea levels, sea water acidification and global warming require scientific research and capacity building, effective and robust legislation/ regulations, tailored incentives, education and communication plans as well as the creation of robust partnerships among academia, industry, public institutions and regulatory bodies. Advanced monitoring systems are crucial to understand the dynamics of the planet and the changes that are taking place. (g) The deep sea represents the world’s largest environment; nevertheless, and though largely unexplored, it provides for one of the highest levels of biodiversity on our planet and for a wide variety of ecosystem services. Some of these ecosystem services are unique, irreplaceable, and play a key role in sustaining human well-being. Unfortunately, due to technological development and the depletion of shallow-water resources, deep sea ecosystems are being increasingly exploited and, unexpectedly, greatly affected by anthropogenic stressors and climate change. In addition, once impacted, the costs for the restoration of deep-sea ecosystems are much higher than those estimated for shallow-water ones. These are only some of the “Global Challenges” presently at stake. Indeed, while the present global socio-economic situation and its ongoing trends do not allow for inefficiencies and fragmented approaches, and even though in recent years the dialogue between scholars and decision-makers has significantly progressed, there are still numerous barriers and bottlenecks that need to be progressively removed, notably cultural differences and institutional barriers. In general, scientists construct theories and refine conceptual models over time based on rigorous methodological approaches to withstand the highest degrees of public scrutiny and criticism, while in the world of decision-making, science is just one point of view, frequently not the most influential, and the need for decisions is immediate. The time has come to overcome these barriers. This would have several and very relevant added values: speed up the process, streamline resources, promote socio-economic development, assure use and advancement of knowledge, encourage more robust decisions, provide more resources to research and innovation. Stakeholders and civil society will benefit greatly from such cooperation. AssIDMer was established, in 2001, exactly for this purpose. The idea is to promote research activities on issues relating to the Law of the Sea by academics, civil servants and legal practitioners. The objective is to set up an independent institution in order to develop a dynamic legal community of lawyers involved in matters regarding the Law of the Sea and to promote cooperative links among experts all around the globe. In expanding its efforts to contribute to the development of the international Law of the Sea, AssIDMer values research, symposia and publications such as this prolific and highly noteworthy volume.

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Giuseppe Cataldi Professor of international law in the University of Napoli “L’Orientale”. Coordinator of the European Network Jean Monnet “MAPS” (Migration and Asylum Policy Systems). He is the President of the International Association for the Law of the Sea (AssIDMer), author and editor of many articles and books on international law and European Union Law issues. EMUNI Management Board Member (former Senate Member). Cofounder and co-director of “Diritti umani e diritto internazionale”, co-director of ‘The Italian Yearbook of International Law’. Member of the Italian Society of International Law (Vice-President, 2012–2013) and of the Société française de droit international.

Part I

The Role of the International Organizations in the Implementation and Development of the Law of the Sea

Chapter 2

Implementation of the Rules of the UNCLOS Through Universal and Regional Organizations Mariko Kawano

Abstract Under the United Nations Convention on the Law of the Sea (UNCLOS), international cooperation through universal, regional, or subregional organizations is particularly important for the purpose of the implementation of the rules concerning the conservation and management of the fish stocks (CMFS) and the protection and preservation of the marine environment (PPME). There were numerous international organizations or conventional arrangements for these purposes even before the UNCLOS. However, since the adoption of the UNCLOS, by considering the new development of scientific and technological knowledge and recognizing the needs of new legal rules and approaches to respond to them, new organizations and arrangements have been established both for CMFS and for PPME. Moreover, the organizations and arrangements prior to the UNCLOS have been reviewed or replaced by new mechanisms. The universal organizations contribute to the development of new legal rules and provide the mechanisms for coordination and enhancement of the function of regional organizations and arrangements. Today, various and complicated overlap and interaction can be noted between the legal rules concerning CMFS and those concerning PPME. Marine living resources are considered to constitute a part of the marine environment and various principles and approaches of international environmental law are introduced to the measures for CMFS. Under these circumstances, the cooperation between the organizations for CMFS and those for PPME may contribute to the coordination and harmonization of the legal rules concerning these different but closely related matters.

1 Introduction The United Nations Convention on the Law of the Sea (UNCLOS), contains various general and framework rules and requires the States concerned to substantiate the appropriate rules for their implementation. As international cooperation is essential M. Kawano (*) Waseda University, Faculty of Law, Tokyo, Japan e-mail: [email protected] © Springer Nature Switzerland AG 2020 M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea, https://doi.org/10.1007/978-3-030-42671-2_2

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for this purpose, the Preamble emphasizes its importance and various provisions set out the obligation to cooperate. The forms of cooperation in those provisions vary. While some provide for direct cooperation between or among the States concerned and some others require all States to cooperate for the specific purpose,1 there are many provisions that set out the obligation to cooperate directly or through international organizations, on a regional as well as universal basis.2 This chapter focuses on the activities undertaken by universal and regional organizations to fulfil the obligations to cooperate in the matters of the conservation and management of fish stocks, hereafter referred to as “CMFS,” and the protection and preservation of the marine environment, hereafter referred to as “PPME”. These two matters are specifically taken up for the following three reasons. First, relevant chapters concerning these two matters only set out frameworks and general rules and, thus, their substantive and actual implementation fully depends on international cooperation through universal, regional or subregional organizations,3 which are mechanisms to respond to the differing circumstances and needs of respective regions. Second, in response to the significant development of scientific knowledge and technologies since the adoption of the UNCLOS, there have been developments in the substantive rules and measures. The activities of universal, regional or subregional organizations in these matters may flexibly change in accordance with those developments. Third, although the UNCLOS sets out the rules concerning these two matters in different parts, there is various and complicated overlap and interaction between the rules and approaches in relation to these two matters. Their relationships significantly reflect the current circumstances of the law of the sea. In Sect. 2, the precedents of international courts and tribunals are analyzed to examine the phenomenon of the overlap of matters concerning CMFS and those concerning the PPME. Then, in Sects. 3 and 4, the mechanisms of regional organizations for CMFS and the PPME are respectively examined and their differences are stated. In this chapter the term “organization” is defined as an institution established by a legally binding convention concluded among more than two States and constituted by at least one internal organs endowed with certain competence and functions set out by the convention, while the word “arrangement” is defined as an institution that lacks a formal structure equivalent to an “organization” but is designated with certain functions to facilitate international cooperation among States sharing common

1 For example, Art. 43 sets out the obligation to cooperate between the user States and States bordering a strait in the establishment and maintenance in the strait of necessary navigational and safety aids or other improvements in aid of international navigation and for the prevention, reduction and control of pollution from ships, and Article 100 provides for the obligation of all the Parties to cooperate in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State. 2 For example, Art. 69 and 70 provide for the obligation to cooperate on a bilateral, subregional or regional basis to ensure the interests of land-locked States and geographically disadvantaged States. 3 While the rules concerning CMRS are principally provided in Parts V and VII, Part XII sets out those concerning the PPME.

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interests.4 The terms “region” and “regional” include “subregion” and “subregional,” and not only mean a group of States that are geographically close but also a group of States that share certain common interests.

2 CMFS and the PPME Under the UNCLOS in International Courts and Tribunals Before examining the activities of universal and regional organizations, it may be worthwhile to sum up the phenomena of the overlapping of matters concerning CMFS and those concerning the PPME in the precedents of international courts and tribunals. In the Southern Bluefin Tuna cases, the International Tribunal for the Law of the Sea (ITLOS) stated that “the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment.”5 The ITLOS confirmed this view in its advisory opinion in the SRFC case6 and stated its findings that the duty to cooperate in the prevention of pollution of the marine environment under Part XII of the UNCLOS and general international law in its Order in the Mox Plant case “extends also to cases of alleged IUU fishing activities”.7 The dispute in the Chagos Marine Protected Area Arbitration essentially reflects the overlap of these matters. In its fourth submission, Mauritius argued the compatibility of the designation of Marine Protected Area (MPA) by the United Kingdom with the provisions in the UNCLOS.8 Both Parties raised the arguments based on the provisions relating to fishing activities and the PPME. Regarding the jurisdiction of the Arbitral Tribunal, the Parties referred the interpretation of Article 297(1) (c) setting out the compulsory jurisdiction to the dispute concerning the PPME and Article 297(3)(a), excluding the compulsory jurisdiction in the disputes concerning fishery resources. The Arbitral Tribunal concluded that it had jurisdiction only regarding the fourth submission of Mauritius, in which Mauritius argued the compatibility of the Marine Protected Area established by the United Kingdom with the UNCLOS. In the context of the arguments on the jurisdiction of the Tribunal, while Mauritius based the jurisdiction in accordance with Article 297(1) (c) regarding the dispute concerning the protection of the marine environment, the 4 Schermers and Blokker (2018), pp. 33–51; Sands et al. (2009), pp. 15–16. The author draws insights from Boisson-Chazournes (2010). 5 Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, p. 295, para. 70. 6 Request for Advisory Opinion submitted by the Sub-Regional Commission, Advisory Opinion, 2 April 2015, ITLOS Reports 2015, p. 37, para. 120. 7 Id., p. 43, para. 140. 8 Mauritius’ made four submissions and the Tribunal found it had jurisdiction only to the fourth one. Chagos Marine Protected Area (Republic of Mauritius v. The United Kingdom of Great Britain and Northern Ireland), Arbitral Award of 18 March 2015, paras. 323.

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United Kingdom raised the objection by invoking Article 297 (3) (a) regarding the disputes concerning fisheries.9 The Arbitral Tribunal examined whether the character of the MPA and the rights of Mauritius that were at issue were beyond the scope of the exception under Article 297 (3) (a).10 Then, regarding the applicability of Article 297(1)(c), the Arbitral Tribunal found that the fourth submission of Mauritius fell within the scope of its compulsory jurisdiction under that provision.11 On the merits, the Tribunal admitted Mauritius’ arguments based on Articles 2 (3) and 56(2) and Article 194. With regard to the breach of Articles 2(3) and 56(2), the Tribunal found that United Kingdom did not fulfil the obligation to undertake consultation with Mauritius and to balance its own rights and interests with those of Mauritius.12 In this context, the rights and interests to be ballanced were those of Mauritius relating to the fishing rights accorded by the Lancaster House Undertakings and those of MPA. As far as the breach of Article 194 was concerned, it should be noted that the Tribunal pointed out that Article 194 is “not limited to measures aimed strictly at controlling pollution and extends to measures focused primarily on conservation and preservation of ecosystems,” referring to paragraph 5. Then, the Tribunal found that while United Kingdom had not violate an obligation pursuant to paragraph 1, its declaration of the MPA was not compatible with paragraph 4 and Mauritian fishing activities in the territorial sea.13 The Tribunal took the view that “Article 194(4) requires a balancing act between competing rights, based upon an evaluation of the extent of the interference, the availability of alternatives, and the importance of the rights and policies at issue,” but that it applies to the activities presently carried out pursuant to the rights. It considered that although Article 194 (4) requires a balancing act between competing rights in the same way with Articles 2 (3) and 56 (2), it differs from those provitions "in that it applies only to the 'activities carried out by other States' pursuant to their rights, rather than to the rights themselves." The Tribunal also admitted the potential possibility of justification of the infringement of Mauritian fishing rights in the territorial sea because of the environmental consideration. However, it found that UK did not pursue significant engagement with Mauritius to explain the need for the measures and to explore less restrictive alternatives to justify that infringement.14 In the South China Sea Arbitration, one of the issues on the merits was the legality of China’s conduct in relation to the activities of the fishing vessels flying the Chinese flag. The Arbitral Tribunal supported the findings and stated that Article 192 entails “the positive obligation to take active measures to protect and preserve the marine environment, and by logical implication, entails the negative obligation

9 The Arbitral Tribunal summed up the positions of the Parties, id., para. 232, and examined their arguments extensively, id., paras. 283–323. 10 Id., para. 301. 11 Id., para. 319. 12 Id., paras. 534–535. 13 Id., paras. 539–541. 14 Id., paras. 540–541.

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not to degrade the marine environment.15 It also supported the findings of the Arbitral Tribunal in the Chagos Marine Protected Area Arbitration, stating that “the phrasing of Article 194(5) confirms that Part XII is ‘not limited to measures aimed strictly at controlling marine pollution,’ which while ‘certainly an important aspect of environmental protection (. . .) is by no means the only one.’” The Tribunal took the view that the duty of due diligence under Article 192, read in the context of the general obligation, which was given particular shape in the context of fragile ecosystems by Article 194(5), “in addition to preventing the direct harvesting of species recognized internationally as being threatened with extinction, extends to the prevention of harms that would affect depleted, threatened, or endangered species indirectly through the destruction of their habitat.”16 In examining the illegality of the harvesting of vulnerable, threatened and endangered species, the Tribunal referred to Convention on the Protection of Biological Diversity (CBD) or the Convention on Trade in Endangered Species of Wild Fauna and Flora (CITES).17 The Tribunal concluded that China breached its obligations under Articles 192 and 194(5) to take necessary measures to protect and preserve the marine environment, with respect to the harvesting of endangered species from the fragile ecosystems at Scarborough Shoal and Second Thomas Shoal and that it also breached the obligation to protect and preserve the marine environment in respect of its toleration and protection of the harvesting of giant clams by the propeller chopping method across the Spratlys.18 The difference of the approach can also be seen in the Whaling in the Antarctic case. The preamble of the International Convention for the Regulation of Whaling (ICRW) indicates both the protection of all whale species from further overfishing for the interest of the nations of the world in safeguarding for future generations, on the one hand, and the conservation and sustainable exploitation for the common interest to achieve the optimum level of whale stocks, on the other. For the purpose of interpretation of Article VIII of ICRW, while Australia supported the restrictive interpretation by focusing on the former object and purpose and the development of the practice under the ICRW, Japan put the emphasis on the latter object and purpose. Although the ICJ did not gave a definitive answer, the dispute between the Parties originated from the differing views.19 The arguments in these precedents reflect the close relationship between the rights and interests concerning CMFS and those concerning the measures for the PPME.

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South China Sea Arbitration, Award of 12 July 2016, para. 941. Id., para. 959. 17 Regarding the definition of an “ecosystem”, the Tribunal referred to Article 2 of CBD, id., paras. 945 and it referred to the Appendixes of CITES in considering the species caught by Chinese fishing vessels, id., paras. 956–957. 18 Id., paras. 950–966, in particular, paras 964–966. 19 I.C.J. Reports 2014, pp. 251–252, paras. 56–58. 16

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3 International Cooperation in Matters Concerning CMFS Despite the close relationship between issues concerning CMFS and those related to the PPME in the current international community, the rules and mechanisms for international cooperation have different backgrounds in their historical development and certain aspects of those rules and mechanisms are different in nature.20 Thus, it is necessary to examine the existing legal rules and mechanisms concerning these two matters separately.

3.1 3.1.1

Development of Universal Organizations and Arrangements Since the Adoption of the UNCLOS Universal Arrangements for the Development of Substantive Rules

As a universal framework the United Nations has continued efforts to develop the UNCLOS rules and enhance the measures for their implementation. Concerning the conservation and management of specific types of fishery resources, the Agreement for the Implementation of the Provisions of the UN Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995 FSA)21 is one of the major fruits of those efforts and provides rules for the implementation of the relevant UNCLOS rules which take into account new approaches to CMFS. The general principles provided by Article 5 of the 1995 FSA contain the new approach to CMFS, including the precautionary approach, the assessment of the impacts of fishing, other human activities and environmental factors on target stocks and species belonging to the same ecosystem or associated with or dependent upon the target stocks, and the protection of biodiversity in the marine environment. Article 6 of this agreement further sets out the substantive rules for the application of the precautionary approach. There provisions reflect the newly developed approach to the conservation and management measures of fish stocks. Traditional measures for CMFS were based on the maximum sustainable yield and the total allowable catch of respective target stock was decided in order to produce a maximum sustainable yield. However, in accordance with new scientific knowledge, the notions of ecosystem and precautionary approaches and the protection of biodiversity have been introduced for the purposes of ensuring effective and proper measures for the sustainable use of a target stock.22 20 Churchill and Lowe (1999), pp. 279–399; Rothwell and Stephens (2016), pp. 292–319 and 338–382. 21 Adopted on 4 August 1995, A/CNF.164/37, and entered into force on 11 December 2001. 22 Proelss (2017), pp. 484–487, 832–836.

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The 1995 FSA also provides special mechanisms to ensure the cooperation between or among the States concerned. Article 7 sets out the obligation of coastal States and the States fishing on the high seas to cooperate directly or through appropriate mechanisms and to ensure the compatibility of the conservation and management measures established for the high seas and those adopted for areas under national jurisdiction. With regard to the “appropriate mechanisms” referred to in Article 7, Part III provides the rules for the mechanisms for international cooperation concerning the relevant fish stocks. In the mechanisms, the role of regional management organizations or arrangements is emphasized to ensure the effective international cooperation concerning straddling fish stocks and highly migratory fish stocks. Thus, under this mechanism, regional organizations or arrangements are even more important. The 1995 FSA substantiates universal rules for the conservation and management of the straddling fish stocks and highly migratory fish stocks, taking into account the development of the scientific knowledge and technologies since the adoption of UNCLOS. The fact that the efforts of the Food and Agriculture Organization (FAO) in CMFS started with the United Nations Conference on Environment and Development (UNCED) in 1992 reflects the close relationship between CMFS and PPME. The arguments in cases referred to an international court or tribunal in accordance with Part XV of the UNCLOS have shed lights on the concrete issues relating to it.

3.1.2

Activities of Universal Organizations for the Elimination of Illegal, Unreported and Unregulated Fishing

In addition to the development of substantive rules for the implementation of the rules concerning CMFS, the elimination of illegal, unreported and unregulated fishing (IUU fishing) has become another essential matter for the arguments on the regulations of fishing activities in the international community. In particular, the FAO has played a principal role as the universal forum for further development of the rules concerning this matter. It has adopted both binding agreements and voluntary instruments, including the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas of 1993 (FAO Compliance Agreement),23 and the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal Unreported and Unregulated Fishing of 2009 (FAO PSMA).24 Non-binding instruments also play an important role in the FAO’s framework. The Code of Conduct for Responsible Fisheries of

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The Agreement was adopted in November 1993 and entered into force on 24 April 2003. The text of the Agreement is available at http://www.fao.org/documents/card/en/c/8cb30770-314555eda0db-315cbbb722a6. 24 The Agreement was adopted on 22 November 2009 and entered into force on 5 June 2016; see http://www.fao.org/port-state-measures/en/. The text of the Agreement is available at http://www. fao.org/port-state-measures/resources/detail/en/c/1111616/.

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1995 was adopted in Resolution 4/95 by the FAO Conference on 31 October 1995.25 The purpose of this Code is explained as follows: “to set international standards of behavior for responsible practices with a view to ensuring the effective conservation, management and development of living aquatic resources, with due respect for the ecosystem and biodiversity.”26 It provides the framework for the activities under the auspices of FAO and, under this, the FAO Committee on Fisheries (COFI) adopted the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU) on 2 March 2001.27 The COFI further adopted the Voluntary Guidelines for Flag State Performance (VGFSP) in its thirty-first session in June 2014,28 and the Voluntary Guidelines for Catch Documentation Schemes (VGCDS) was the adopted in its fortieth session in July 2017.29 It should also be noted that the FAO has contributed to the establishment and the effective function of the regional organizations for the CMFS, hereafter referred to as RFMOs and the regional arrangements for the CMFS, hereafter referred to as RFMAs.30 The International Maritime Organization (IMO) has expressed its concern about the IUU fishing in light of the flag State’s control of fishing vessels. The 2012 Cape Town Agreement was adopted in the Diplomatic Conference on 11 October 2012. It is explained that while this agreement is aimed at facilitating better control of fishing vessel safety, it is expected to contribute to the fight against IUU fishing.31 The UN Commission on Sustainable Development, which met in April 1999, highlighted the issue of flag and port State responsibilities and the need for the FAO and IMO to cooperate on solving problems relating to IUU fishing. These organizations agreed to establish the Joint FAO/IMO Ad Hoc Working Group on IUU Fishing and Related Matters (JWG) in October 2000. The JWG convened three sessions and published a report in 2000, 2007, and 2015, respectively.32 This may constitute the good practice for the coordination of the activities of international organizations whose purposes are different but closely related in certain aspects. These developments of universal rules and mechanisms since the 1980s are significant but their actual implementation cannot be realized without the development of regional mechanisms responding to the wide variation in the nature and 25 The Code was adopted on 31 October 1995. The text of the Code is available at http://www.fao. org/3/v9878e/V9878E.pdf. 26 See Ibid, Introduction. 27 The text is available at http://www.fao.org/3/a-y1224e.pdf. 28 The text is available at http://www.fao.org/3/a-i4577t.pdf. 29 The text is available at http://www.fao.org/3/a-i8076e.pdf. 30 See http://www.fao.org/fishery/topic/16918/en. 31 Agreement on the Implementation of the Provisions of Torremolinos Protocol of 1993 relating to the Torremolinos International Convention for the Safety of Fishing Vessels, 1977; see https:// www.imo.org/en/About/Conventions/ListOfConventions/Pages/The-Torremolinos-InternationalConvention-for-the-Safety-of-Fishing-Vessels.aspx. 32 The activities of JWG are briefly illustrated and the reports of the sessions are available at http:// www.fao.org/iuu-fishing/tools-and-initiatives/joint-working-group-on-iuu-fishing/en/.

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circumstances of respective species and maritime areas. In fact, most maritime areas are regulated by some regional organization in the current international community.33

3.2 3.2.1

RFMOs Constituted by Coastal States and Fishing States RFMOs Before the Adoption of the UNCLOS

Even before the adoption of the UNCLOS, there were various RFMOs, including: the ICRW34; the Agreement for the establishment of the General Fisheries Commission for the Mediterranean (GFCM)35; the Convention for the Establishment of an Inter-American Tropical Tuna Commission (IATTC)36; the International Convention for High Seas Fisheries of the North Pacific Ocean37; the International Convention for the Conservation of Atlantic Tuna38; the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries39; the Convention for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering

33

The map of the regulatory areas of RFMOs is available at http://www.fao.org/fishery/rfb/en. The International Whaling Commission (IWC) was established by the Convention. An integral part of the Convention is its legally binding “Schedule,” by which the measures under IWC have been developed; see https://iwc.int/history-and-purpose. 35 The first agreement was adopted in the FAO Conference in 1949. The agreement was amended four times and the fourth amendment in 1997 included the change in the name of the organization to General Fisheries Commission for the Mediterranean (GFCM) previously “General Fisheries Council for the Mediterranean. The text of the Agreement is available at http://www.fao.org/ gfcm/about/legal-framework/en/. 36 The Convention was adopted on 31 May 1949. The text is available at http://www.iattc.org/ PDFFiles/IATTC-Instruments/_English/IATTC_IATTC%20Convention%201949.pdf. The Convention for the Strengthening of the Inter-American Tropical Tuna Commission established by the 1949 Convention between the United States of America and the Republic of Costa Rica (“Antigua Convention”) was signed on 14 November 2003 and entered into force on 27 August 2010. The text is available at http://www.iattc.org/PDFFiles/IATTC-Instruments/_English/IATTC_ Antigua_Convention%20Jun%202003.pdf. 37 International North Pacific Fisheries Commission (INPFC) was established by this Convention, and comprised Canada, Japan, and the United States of America as members. The INPFC dissolved when the Convention of Anadromous Stocks in the North Pacific Ocean came into effect on 16 February 1993; see https://npafc.org/inpfc/. 38 The Convention was adopted in May 1966. This convention established the International Commission for the Conservation of Atlantic Tunas (ICCAT). The text which reflects the seventh revision is available at https://www.iccat.int/en/. 39 The Convention was signed on 24 October 1978 and entered into force on 1 January 1979. The Northwest Atlantic Fisheries Organization (NAFO) was established by this convention. The convention was amended four times. The last amendment came into force on 18 May 2017. The amended text is available at https://www.nafo.int/Portals/0/PDFs/key-publications/ NAFOConvention-2017.pdf. 34

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Sea40; the Convention for the Convention on the Conservation of Antarctic Marine Living Resources41; and the Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries.42 The Western Central Atlantic Fishery Commission (WECAFC) was established in 1973 by Resolution 4/61 of the FAO Council under Article VI (1) of the FAO Constitution.43 The Southeast Asian Fisheries Development Center (SEAFDEC) was established in 1967.44 It is important to note that all of these conventions have been amended, have been replaced by a new convention, or have the mechanism to renew the substantive rules to respond to the new development of legal rules and approaches.

3.2.2

Development Since the Adoption of the UNCLOS

Since the adoption of the UNCLOS, the following organizations for CMFS have been established to ensure the cooperation among coastal and fishing States: the North Atlantic Salmon Conservation Organization (NASCO)45; the North Pacific Anadromous Fish Commission (NPAFC)46; the Commission for the Conservation of Southern Bluefin Tuna (CCSBT)47; the Indian Ocean Tuna Commission

40 The Convention was signed in 1923 and established the International Pacific Halibut Commission (IPHC). The most recent change occurred in 1979 by the Protocol Amending the Convention; see https://iphc.int/the-commission. The Pacific Halibut Fishery Regulations (2018) is available at https://iphc.int/uploads/pdf/regs/iphc-2018-regs.pdf. 41 The Convention was signed on 20 May 1980 and entered into force on 7 April 1982. The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) was established by this convention. The text of the convention is available at https://www.ccamlr.org/ en/organisation/camlr-convention-text. 42 The Convention was signed on 18 November 1980 and entered into force on 17 March 1982 to replace the earlier 1959 North-East Atlantic Fisheries Convention. The North-East Atlantic Fisheries Commission (NEAFC) was established by this convention. The convention was further amended and the latest version is available at https://www.neafc.org/system/files/Text-ofNEAFC-Convention-04.pdf. 43 See http://www.fao.org/fishery/rfb/wecafc/en#Org-LegalFoundation. Its Statutes were amended by the FAO Council in 1978 and in 2006. The latest amended version (Resolution 1/131) is available at http://www.fao.org/fishery/docs/DOCUMENT/wecafc/statutes.pdf. 44 Regarding the relationship between FAO and RFMOs and RFMAs, please see http://www. seafdec.org/about. 45 The NASCO was established in 1984 by the Convention for the Conservation of Salmon in the North Atlantic Ocean, entered into force on 1 October 1983, http://www.nasco.int/background. html. The text of the Convention is available at http://www.nasco.int/convention.html. 46 The NPAFC was established by the Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, which was signed on 11 February 1992 and entered into force on 16 February 1993. Its text is available at https://npafc.org/wp-content/uploads/2017/06/Hand book-3rd-E-Convention-Only-English.pdf. 47 The CCSBT was established by the Convention for the Conservation of Southern Bluefin Tuna, which was signed on 10 May 1993 and entered into force on 20 May 1994. Its text of the Convention is available at https://www.ccsbt.org/en/content/basic-documents-commission.

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(IOTC)48; the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC)49; the South East Atlantic Fisheries Commission (SEAFO)50; the Southern Indian Ocean Fisheries Agreement (SIOFA)51; the Commission of the South Pacific Regional Fisheries Management Organisation (SPRFMO)52; and the North Pacific Fisheries Commission (NPFC).53 The Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea was concluded for the establishment of an international regime.54

3.2.3

Common Features of Current RFMOs

The principal objective common to all RFMOs is to achieve long-term conservation and the sustainable use of the fisheries resources in the Convention Area. Commonly referring to the 1995 FSA, the FAO Compliance Agreement, and the FAO Code of Conduct in the preamble, set forth the precautionary approach, the ecosystem approach, and the protection of habitat and biodiversity, as general principles. These new principles have been developed and enhanced by the efforts of universal organizations since the adoption of the UNCLOS. They also make efforts to ensure

48 The IOTC was established in 1993 at the 105th Session of the Council of the FAO under Article XIV of the FAO Constitution. The Agreement for the Establishment of IOTC was signed on 25 November 1993 and entered into force on 27 March 1996; see https://iotc.org/about-iotc/ basic-texts. 49 The WCPFC was established by the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean Convention, open to signature on 5 September 2000 and entered into force on 19 June 2004. Its text is available at https://www.wcpfc. int/convention-text. 50 The SEAFO was established by the Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean, which was signed on 20 April 2001 and entered into force on 13 April 2013. Its text is available at http://www.seafo.org/About/Convention-Text. 51 The Agreement was adopted on 7 July 2006 and entered into force on June 2012; see https:// www.apsoi.org. By this agreement, the Indian Ocean Fishery Commission (IOFC) and its subsidiary bodies were abolished. The text of the Agreement is available at https://www.apsoi.org/sites/ default/files/documents/SIOFA%20AGREEMENT_EN.pdf. 52 The SPRFMO was established by the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean, which was signed on 14 November 2009 and entered into force on 24 August 2012. Its text is available at https://www.ccsbt.org/en/content/basicdocuments-commission. 53 The NPFC was established by the Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean was signed on 24 February 2012 and entered into force on 19 July 2015. Its text is available at https://www.npfc.int/system/files/2017-01/Convention %20Text.pdf. 54 The Convention was signed on 16 June 1994 and entered into force on 8 December 1995. The text of the Convention is available at https://www.jus.uio.no/english/services/library/treaties/06/6-05/ pollock-resources-bering.xml.

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responsible fishing activities and to fight against IUU fishing.55 While NASCO and NPAFC, in principle, prohibit directed fishing for target resources56 and the IWC decided the moratorium of commercial whaling,57 other RFMOs allow the fishing activities in the Convention or Regulatory Area in accordance with the conservation and management measures decided by the Commission.58 In most conventions, while the maritime area regulated by the Convention is restricted to the high seas and the respect for the sovereignty and sovereign rights of coastal States is explicitly provided, the Member States are required to ensure the compatibility of the measures for the high seas decided by the Commission and those for the maritime areas under national jurisdiction of the coastal States.59 Most RFMOs are constituted by a Commission, Committee(s) for specialized purposes, and a Secretariat. The role of the Commission is played by the Council in NASCO and by the annual meeting under the Convention and Management of Pollock Resources in the Central Bering Sea, the annual meeting.60 The Commission is endowed with legal personality and the competence to decide the measures to achieve the objectives of the Convention and to ensure the effective implementation of and compliance with those measures. It also has the power to make decisions on administrative and financial matters. The committees are designated the functions to support the activities of the Commission by providing scientific or technical advice. The role of the Secretariat is to coordinate the activities of the internal organs and Member States. It should also be noted that the cooperation with universal organizations or arrangements and other RFMOs, including the FAO and that with non-Parties are provided.

55 For example, the IATTC adopted the 2005 Resolution on IUU fishing (amended in 2019 by Resolution C-19-02), see https://www.iattc.org/PDFFiles/Resolutions/IATTC/_English/C-19-02Active_Amends%20and%20replaces%20C-15-01%20IUU%20fishing.pdf, and publishes the Current IUU Vessel List of IATTC; see http://www.iattc.org/VesselRegister/IUU.aspx?Lang¼en. 56 Art. 2 of the NASCO Convention, supra note 45 and Art. 3 of the NPAFC Convention, supra note 46. 57 The IWC decided the moratorium of commercial whaling in 1982 and have maintained and maintains it; see https://iwc.int/the-revised-management-scheme. 58 In the provision concerning the objective(s) of the Convention, the conservation and sustainable use of the stocks concerned is indicated, for example, Article w of the NPFC Convention, supra note 53. Please see, Proelss (2017), p. 518. 59 Art. 3 of the GFCM Convention designates all marine waters of the Mediterranean Sea, supra note 35. 60 Art. 3 of NASCO, see supra note 45 and Art. 3 of the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea, see supra note 54.

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RFMOs and RFMAs Established by States in a Specific Geographical Region

RFMOs and RFMAs are also established by States in specific geographical regions.

3.3.1

Africa

In Africa, there are several RFMOs and RFMAs to enhance regional cooperation. The Regional Commission of Fisheries of Gulf of Guinea (COREP) was established by the Convention concerning the Regional Development of Fisheries in the Gulf of Guinea, signed on 21 June 1984. Since 2008, the COREP is a specialized organization of the Economic Community of Central African States (ECCAS). The Convention was revised in 2004 and the revised Convention entered into effect provisionally on 8 May 2009 and definitively on 15 December 2010.61 The Ministerial Conference of Fisheries Cooperation among African States Bordering the Atlantic (COMHAFAT-ATLAFCO) was established by la Convention régionale relative à la Coopération Halieutique entre les Etats africains riverains de l’Océan Atlantique. The Convention was adopted on adopted on 5 July 1991. With regard to the institutional framework, le Protocole relatif au cadre institutionnel de la Conférence Ministérielle sur la coopération halieutique entre les Etats africains riverains de l’Océan Atlantique was adopted on 15 October 1999 and amended on 16 January 2009.62 The Fishery Committee of the West Central Gulf of Guinea (FCWC) was established in July 2006 at the Ministerial Meeting in Abidjan and the first Ministerial Conference in Cotonou, Benin November 2007 approved the Convention for the Establishment of the Fishery Committee as well as the Rules of Procedure.63 The Subregional Fisheries Commission (SRFC) was also established for regional cooperation in a specific geographical area in Africa.64

3.3.2

Asia

In Asia, RFMOs and RFMAs are established to enhance regional cooperation. The Indian Ocean South East Asian Marine Turtle Memorandum of Understanding

61

See https://www.corep-se.org/historique/. See https://www.atlafco.org/fr/files/publications/doc_publication_024.pdf. 63 See https://www.fcwc-fish.org/about-us/about-fcwc. The text of the Convention is available at http://www.fao.org/fishery/docs/DOCUMENT/FCWC/convention_e.pdf. 64 See http://www.fao.org/fishery/rfb/srfc/en. 62

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(IOSEA) is arranged.65 For the Bay of Bengal, the Agreement on the Institutionalisation of the Bay of Bengal Programme as an Inter-Governmental Organization evolved from the Bay of Bengal Programme of FAO (1979–2000). The Agreement was signed by Bangladesh, India and Sri Lanka on 26 April 2003 and by the Maldives on 21 May 2003.66 The Regional Commission for Fisheries (RECOFI) was established by the Agreement concluded under Article XIV of the FAO Constitution. The Agreement was approved by the FAO Council in November 1999 and entered into force on 26 February 2001.67 The Asia-Pacific Fishery Commission (APFIC) was established as the IndoPacific Fisheries Council in 1948 by the FAO. The APFIC is a regional fishery body in accordance with Article XIV of the FAO Constitution. The Secretariat is provided and supported by the FAO. The name “Indo-Pacific Fisheries Council” was changed to “Indo-Pacific Fishery Commission” in 1976, and then, to the current name in 1993.The APFIC further made a major amendment in 1996.68 In accordance with Article VI of the FAO Constitution, the South West Indian Ocean Fisheries Commission (SWIOFC) was established by Resolution 1/127 of the FAO Council under Article VI of the FAO Constitution.69

3.3.3

Europe

In Europe, there are various RFMOs and RFMAs: the North East Atlantic Fisheries Commission (NEAFC), established under the Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries70; the European Fisheries Control Agency (EFCA), established by Council Regulation (EC) No 768/2005 of

65 The IOSEA was concluded under the Convention on the Conservation of Migratory Species of Wild Animals (CMS). The ultimate aim of the IOSEA agreement is to maintain and recover marine turtle populations by promoting cooperation among Governments and other organizations that share this common objective; see https://www.cms.int/en/legalinstrument/iosea-marine-turtles. The text of the Memorandum is available at https://www.cms.int/sites/default/files/instrument/mou_cmp_ 2009_e.pdf. 66 See https://bobpigo.org/html_site/aboutbobp.htm. The text of the Agreement is available at https://bobpigo.org/html_site/dnload/agreement.pdf. 67 See http://www.fao.org/fishery/rfb/recofi/en. The text of the Agreement is available at http:// www.fao.org/fishery/static/recofi/recofi_agreement_text.pdf. 68 See http://www.fao.org/apfic/en/. The text of the Agreement is available at http://www.fao.org/ apfic/background/apfic-agreement/en/. 69 See http://www.fao.org/fishery/rfb/swiofc/en. 70 See https://www.neafc.org/about. The Convention was adopted on 18 November 1980 to replace the North-East Atlantic Fisheries Convention of 1959. The amendment reflected in the current version was adopted in 2006 and entered into force on 29 October 2013; see https://www.neafc.org/ basictexts.

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26 April 2005 establishing the EFCA71; the North Atlantic Marine Mammal Commission (NAMMCO), established by the NAMMCO Agreement (signed on 9 April 1992 and entered into force on 8 July 1992)72; and the Joint Norwegian-Russian Fisheries Commission (established to ensure efficient joint management of the most important fish stocks of both States, in the Barents Sea and the Norwegian Sea).73

3.3.4

Latin America

In this region, there are several RFMOs or RFMAs to enhance regional cooperation: the Permanent Commission for the South Pacific (CPPS) was established by the Convention concerning the Establishment of the Permanent Commission of the Conference on the Exploitation and Conservation of the Marine Resources of the South Pacific adopted on 18 August 195274; the Joint Technical Commission of the Maritime Front (CTMFM), established by the Agreement on the Plate River and Ocean Areas Adjacent and Beyond the River of 19 November 1973 between Argentina75; the Latin American Organization for Fisheries Development (OLDEPESCA), established by the Agreement Instituting the Latin American Organization for Fisheries Development, adopted on 29 October 198276; the Central America Fisheries and Aquaculture Organization (OSPESCA), established by the “Act of San Salvador” on 18 December 199577; and the Caribbean Regional Fisheries Mechanism (CRFM), established by the Agreement Establishing the CRFM, signed on 4 February 2002.78

71

See https://www.efca.europa.eu/en/content/legal-basis. See https://nammco.no/topics/nammco-agreement. The text of the Agreement is available at https://nammco.wpengine.com/wp-content/uploads/2016/10/nammco-agreement-with-signaturesand-logo.pdf. 73 See https://www.jointfish.com/index.php/eng.html. 74 The text of the Convention in Spanish is available at http://cpps.dyndns.info/consulta/ documentos/legal/convenios/conf_explot_riquezas_pacif_sur_1952.pdf. The objectives and activities of CPPS are explained at http://www.fao.org/fishery/rfb/cpps/en. 75 The text of the Agreement in Spanish is available at http://www.fao.org/fishery/rfb/cpps/en. 76 The text of the Agreement in English is available at https://treaties.un.org/doc/Publication/UNTS/ Volume%201427/volume-1427-I-24116-English.pdf. The objectives and competence are explained at http://www.fao.org/fishery/rfb/oldepesca/en. 77 See http://www.fao.org/fishery/rfb/oldepesca/en; http://www.fisheries.gov.bz/ecosystem-manage ment-unit/international-commitment/ospesca/ and https://www.sica.int/ospesca/ospesca.aspx? ldEnt¼47. 78 See http://www.fao.org/fishery/rfb/crfm/en. The text of the Agreement is available at http://www. sice.oas.org/Trade/CCME/fisheries_mechanism_e.pdf. 72

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North Pacific

In this region, Canada and the United States of America established the Pacific Salmon Commission (PSC)79 and the International Halibut Commission (IPHC).80 The North Pacific Marine Science Organization (PICES) was also established to promote and coordinate marine scientific research in this area by six Members.81

3.3.6

South Pacific

In this region, the Pacific Islands Forum Fisheries Agency (FFA) was established by the South Pacific Forum Fisheries Agency Convention, adopted and entered into force in 197982 and has played the role, as an advisory body, in facilitating regional cooperation for the sustainable use of fishery resources falling within the EEZs of members since 1979.83 The FFA contributed to the adoption of the WCPFC and facilitated the negotiations and drafting of the Niue Treaty for cooperation between FFA members on the monitoring, control and surveillance of fishing.84 Further, the Agreement on Strengthening Implementation of the Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region was adopted on 2 November 2012,85 and the Tokelau Arrangement for the Management of the South Pacific Albacore Fishery was adopted on 22 October 2014.86

3.3.7

Features of the RFMOs and RFMAs Established by States in a Specific Geographical Region

The RFMOs and RFMAs established by States in a specific geographic region commonly emphasize the contribution to the regional integration. It is also worthwhile noting that the Conventions establishing RFMOs and RFMAs in specific geographical regions set out their applicability to the waters under the jurisdiction

79

PSC was established by the Pacific Salmon Treaty concluded in March 1985; see https://www. psc.org/about-us/history-purpose/pacific-salmon-treaty/. 80 IPHC was established by the Convention concluded in 1923, which was amended substantially in 1979; see https://iphc.int/the-commission. 81 The PICES was established by the Convention for a North Pacific Marine Science Organization, entered into force on 24 March 1992; see https://meetings.pices.int/about/convention. 82 The text of the Convention is available at https://www.jus.unio.no/english/services/library/ treaties/08/8-02/pacific-forum.xml. 83 The history of the programme is explained at http://www.ffa.int/about. 84 The Niue Treaty was signed on 9 July 1992 and entered into force on 20 May 1993. The text of the Treaty is available at http://www.ffa.int/system/files/Niue%20Treaty_0.pdf. 85 The text of the Agreement is available at https://www.ffa.int/system/files/Multilateral%20NTSA_ Agreement%20on%20Strengthening%20Implementation%20of%20the%20Niue%20Treaty.pdf. 86 The text of the arrangement is available at http://www.ffa.int/tka_public.

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of State parties.87 The formulation of common regional rules and coordination is considered to be a measure that enhances regional integration. It should also be noted that RFMOs and RFMAs of this type express serious concerns about IUU fishing and are active in taking measures to eliminate IUU fishing to ensure responsible fishing activities in accordance with the rules formulated by the FAO.88 The structure of most RFMOs and RFMAs is not as formal as that of RFMOs established by coastal and fishing States in the sense that the Meetings of Ministers or similar organs play a key role in decisions regarding the measures to be taken by them.89 It is possible to say that there is wide variety of RFMOs and RFMAs in the current international community and the mechanism for coordinating and harmonizing their activities is required to ensure the effective measures for the CMFS. The “Regional Fishery Body Secretariats Network” established by the FAO may be effective to achieve those purposes.90

4 Regional Arrangements for the Protection and Preservation of the Marine Environment (PPME) 4.1

The UNCLOS and the PPME

Chapter XII of the UNCLOS provides for various rules concerning the PPME. While those rules reflect the scientific knowledge of 1970s and the prevention and control of marine pollution is the main issue in Chapter XII, there are some provisions setting out general obligations to protect and preserve the marine environment. The Arbitral Tribunals in the South China Sea Arbitration stated the contents of the general obligation to the PPME provided by Article 192.91 Moreover, it noted that Article 197 sets out the obligation to “cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with the UNCLOS, for the PPME.” It explicitly notes that the aim of this mechanism is to take “into account characteristic regional features.”92

87

For example, Art. 4 of the OLDEPESCA Convention, supra note 76. The serious concerns of the SRFC are reflected in its request for the advisory opinion of the ITLOS, see supra note 6. 89 For example, in accordance with Article 9, OLDEPESCA consists of a Conference of Ministers, a Governing Board, and an Executive Management Board, supra note 76. 90 See http://www.fao.org/fishery/rsn/en. 91 South China Sea Arbitration, supra note 15, paras. 940. 92 Id., 946. 88

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The Establishment of Regional Organization or Arrangements Initiated by the UN and United Nations Environment Programme (UNEP)

Being different from the matter of CMFS, it is the UN and UNEP, rather than the UNCLOS, that have initiated the development of regional organizations or arrangements for the PPME, hereafter referred to as “REOs” or “REAs” since the Stockholm Declaration on the Human Environment. It is stated that “[t]he Regional Seas Programme, launched in 1974, is one of UN Environment’s most significant achievements in the past four decades,” and that “[t]he Programme aims to address the accelerating degradation of the world’s oceans and coastal areas through a ‘shared seas’ approach – namely, by engaging neighbouring countries in comprehensive and specific actions to protect their common marine environment.”93 Most regional environmental conventions, hereafter referred to as “RECs,” for the establishment of REOs or REAs were adopted in the 1980s and 1990s. Now, 18 regional seas programmes of the following types have been established: UN Environmental Administered Regional Seas Programmes, Non-UN Environment-administered Regional Seas Programmes and independent Regional Sea Programmes. And under those regional programmes of the UNEP, 14 regional seas conventions have been concluded.94 Those regional conventions are concluded to set forth the framework and protocols are subsequently adopted to provide substantive rules for specific purposes. The combination of a framework convention and subsequent protocols enables the establishment of a mechanism that is not only practical for deciding the measures responding to needs that arise in specific circumstances and conditions of respective maritime areas concerned, but also flexible in adapting newly emerging needs of the specific region or the marine environment as a whole. Each convention establishes the Secretariat and the conference of the parties (COP) is designated to decide various matters for the implementation of the conventional rules. In addition to the UNEP’s programmes, it should be noted that the IMO, as a universal international organization, has also played and is playing leading roles in regulating shipping activities in light of their impact on the marine environment.95 It 93 See https://www.unenvironment.org/explore-topics/oceans-seas/what-we-do/working-regionalseas/why-does-working-regional-seas-matter. 94 The conventions concluded in the Caribbean Region, the East Asian Seas, the Eastern Africa Region, the Mediterranean Region, the North-West Pacific Region, the Western Africa Region, and the Caspian Sea are classified into the first category. Those in the Black Sea Region, the North-East Pacific Region, the Red Sea and the Gulf of Aden, the ROPME Sea Area, the South Asian Seas, the South-East Pacific Region, and the Pacific Region are classified into to the second category. Those in the Arctic Region, the Antarctic Region, the Baltic Sea, and the North-East Atlantic Region are classified into the third group. (Ibid.) 95 The original focus of its work was the prevention of marine pollution by oil, resulting in the adoption of the first ever comprehensive antipollution convention, the International Convention for the Prevention of Pollution from Ships (MARPOL Convention) in 1973. This has changed over the

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is also necessary to note that the Appendixes of the Convention on the Conservation of Migratory Species of Wild Animals (CMS) refer to certain marine living species.96

4.3 4.3.1

Features of RECs Africa

The Nairobi Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Western Indian Ocean (Nairobi Convention) was signed on 21 June1985 and entered into force on 30 May 1996 as a part of UNEP’s Regional Seas Programme with the following associated instruments: the Protocol Concerning Co-operation in Combating Marine Pollution in Cases of Emergency in the Eastern African Region, adopted 21 June 1985 and entered into force on 30 May 1996; the Action Plan for the Protection, Management, and Development of the Marine and Coastal Environment of the Eastern African Region, adopted on 21 June 1985; and the Protocol Concerning Protected Areas and Wild Fauna and Flora in the Eastern African Region, adopted on 21 June 1985 and entered into force on 30 May 1996.97 Afterwards, the Convention for the Protection, Management, and Development of the Marine and Coastal Environment of the Eastern African Region was adopted on 30 May 1996 and the Protocol for the Protection of the Marine and Coastal Environment of the Western Indian Ocean from Land-Based Sources and Activities was adopted on 31 March 2010.98 The Nairobi Convention was amended on 31 March 2010.99

last few decades to include a much wider range of measures to prevent marine pollution. The original MARPOL Convention was amended many times to include requirements addressing pollution from chemicals, other harmful substances, garbage, sewage by Annexes I–V. Annex VI which was adopted in 1997 and entered into force on 19 May 2005) is on the air pollution and emissions from ships and the rules have been developed through its Annexes in order to respond to the new problems. See http://www.imo.org/en/About/Conventions/ListOfConventions/Pages/Inter national-Convention-for-the-Prevention-of-Pollution-from-Ships-(MARPOL).aspx. On 13 February 2004, the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (BWM Convention) was adopted by consensus at a Diplomatic Conference held at IMO Headquarters in London; see http://www.imo.org/en/OurWork/Environment/ BallastWaterManagement/Pages/BWMConventionandGuidelines.aspx. The Convention entered into force on 8 September 2017. For the regulation of ship recycling, the Hong Kong International Convention for the State and Environmentally Sound Recycling of Ships, 2009 (Hong Kong Convention) was adopted at a diplomatic conference held in Hong Kong, China; see http://www. imo.org/en/OurWork/Environment/ShipRecycling/Pages/Default.aspx. 96 See https://www.cms.int/en/convention-text and https://www.cms.int/en/page/appendix-i-ii-cms. 97 See https://www.unenvironment.org/nairobiconvention/who-we-are. 98 See https://www.unenvironment.org/nairobiconvention/who-we-are/legal-and-policy-instruments. 99 The text of the amended Nairobi Convention is available at https://wedocs.unep.org/bitstream/ handle/20.500.11822/21167/UNEP-DEPI-EAF.CP.7Inf4a%20Amended%Nairobi%Convention. pdf?sequence¼1&isAllowed¼y.

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Another REC under the UNEP’s Regional Seas Programme in Africa is the Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region (the Abidjan Convention), which was adopted in March 1981 and entered into force on 5 August 1984. With the Abidjan Convention, the Action Plan and the Protocol Concerning Cooperation in Combating Pollution in Cases of Emergency were adopted. Then, the Protocol Concerning Co-operation in Combating Pollution in Cases of Emergency in the Western and Central African Region was adopted in 1985 and entered into force on 30 May 1986, and the Additional Protocol to the Abidjan Convention Concerning Cooperation in the Protection and Development of Marine and Coastal Environment from Land-Based Sources and Activities in the Western, Central and Southern African Region was adopted on 22 June 2012. The activities under the Abidjan Convention are coordinated by the Regional Coordinating Unit and the UNEP is designated as the Secretariat in accordance with Article 16 of the Convention.100

4.3.2

Asia

The Action Plan for the Protection and Development of the Marine Environment and Coastal Areas of the East Asian Seas Region (the East Asian Seas Action Plan) was approved in 1981. The States concerned preferred promoting the existing environmental treaties without a regional convention and the relationship is based on good will. Thus, the Coordinating Body on the Seas of East Asia (COBSEA) was established as the regional body for UNEP Regional Seas Programme. The COBSEA Secretariat is the lead agency of the UN for marine environmental matters in East Asia, responsible for coordinating the activities of governments, NGOs, UN and donor agencies, and individuals in caring for the region’s marine environment.101 The Action Plan for the Protection, Management and Development of the Marine and Coastal Environment of the Northwest Pacific Action Plan (NOWPAP) was adopted in 1994 as a part of the Regional Seas Programme of the UNEP.102 Like the COBSEA, the NOWPAP is not based on a convention. In its institution, the Intergovernmental Meeting (IGM) is the high-level governing body that provides policy guidance and makes decisions. In accordance with the IGM decisions, NOWPAP Regional Activity Centers were established between 2000 and 2002, respectively in four participating States, to coordinate a network of activities of national institutions participating in the NOWPAP and the Regional Coordinating Unit (RCU) was set up in Japan and Korea in November 2004 to ensure integrated and well-managed implementation under the Action Plan.103

100

See https://abidjanconvention.org/index.php?option¼com_content&view¼article&id¼99& Itemid¼199&lang¼fr. The text of the Convention is available at https://abidjanconvention.org/ index.php?option¼com_content&view¼article&id¼100&Itemid¼200&lang¼fr. 101 See http://www.unenvironment.org/cobsea. 102 See https://www.unenvironment.org/nowpap/who-we-are. 103 See https://www.unenvironment.org/nowpap/who-we-are/institutional-framework.

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4.3.3

29

Caspian Sea

In the Caspian Sea, concerns over threats to the sea’s environmental health lead to the establishment of the Caspian Environment Programme (CEP) in 1999.104 The activities under the CEP resulted in the signing of the Framework Convention for the Protection of the Marine Environment of the Caspian Sea (Tehran Convention) on 4 November 2003. Under the Tehran Convention, three protocols have been adopted: the Protocol Concerning Regional Preparedness, Response and Co-operation in Combating Oil Pollution Incidents, adopted on 12 August 2011 and entered into force on 25 July 2016; the Protocol for the Protection of the Caspian Sea against Pollution from Land-based Sources and Activities, adopted on 12 December 2012; and the Protocol for the Conservation of Biological Diversity, adopted on 30 May 2014.105

4.3.4

Europe

In Europe, four RECs should be noted for the purposes of this chapter. The Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) was concluded in 1992 by unifying, up-dating and extending the 1972 Oslo Convention against dumping and the 1974 Paris Convention concerning land-based sources of marine pollution and the offshore industry.106 The OSPAR Commission was established by the OSPAR Convention and the new annex on biodiversity and ecosystem was adopted in 1998 to cover non-polluting human activities that can adversely affect the sea.107 Work to implement the Convention and its strategies is taken forward through the adoption of decisions, which are legally binding on the State Parties, as well as recommendations and other agreements.108 OSPAR has also been very active in cooperating with other international organization, including IMO and the Abidjan Convention.109 Baltic Marine Environment Protection Commission—Helsinki Commission (HELCOM) is the governing body of the Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention, 1992). The Helsinki

104

See https://www.unenvironment.org/explore-topics/oceans-seas/what-we-do/working-regionalseas/regional-seas-programmes/caspian-sea. The text of the Convention is available at http:// www.tehranconvention.org/spip.php?article41. 105 See http://www.tehranconvention.org/spip.php?article41. 106 The text is available at https://www.ospar.org/site.assets/files/1290/ospar_convention_e_ updated_text _in _2007_no_revs.pdf. 107 See https://www.ospar.org/about. 108 All decisions, recommendations and agreements can be accessed at https://www.ospar.org/ convention/agreements. 109 OSPAR’s activities can be seen in the MoU Abidjan Convention Secretariat, the Agreement of Cooperation with the IMO, and the MoU between the IMO and OSPAR on the promotion of the London Convention and London Protocol. The texts are available from https://www.ospar.org/ about/international-cooperation.

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Convention entered into force on 17 January 2000 and was amended in 2000, 2001, 2003, 2007 and 2013.110 The HELCOM Baltic Sea Action Plan was adopted on 15 November 2007.111 In the Black Sea region, the Convention on the Protection of the Black Sea against Pollution (Bucharest Convention) was signed in April 1992 and entered into force in 1994.112 With this convention, three protocols were adopted: the Protocol on the Protection of the Marine Environment of the Black Sea from Land-Based Sources and Activities (adopted in 2009 and entry into force pending)113; the Protocol on the Dumping of Waste; and the Protocol on Cooperation in Combatting Pollution of the Black Sea Marine Environment by Oil and Other Harmful Substances in Emergency Situations.114 In the Mediterranean Sea, the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (Barcelona Convention) was adopted in 1995 and entered into force in 2004. Prior to this, the Convention for the Protection of the Mediterranean Sea against Pollution of 1976 and two protocols concerning pollution existed. The Barcelona Convention is a substantially amended and renamed version of the 1976 Convention. Under the Barcelona Convention, seven protocols have been adopted: the Protocol for the Prevention of Pollution in the Mediterranean Sea by Dumping from Ships and Aircraft, adopted in 1976 and amended in 1995, amendment not in force on 20 February 2019; the Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources and Activities, adopted in 1980, amended in 1996 and amendment entered into force in 2008; the Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean, adopted in 1995 and its Annexes amended in 2009, 2012 and 2013; the Protocol Concerning Cooperation in Preventing Pollution from Ships and, in Cases of Emergency, Combating Pollution of the Mediterranean Sea, adopted in 2002 and entered into force in 2004; the Protocol for the Protection of the Mediterranean Sea against Pollution Resulting from Exploration and Exploitation of the Continental shelf and the Seabed and its Subsoil, adopted in 1994 and entered into force in 2011; the Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements of Hazardous Wastes and their Disposal, adopted in 1996 and entered into force in 2011; and the Protocol on Integrated Coastal Zone Management in the Mediterranean, adopted in 2008 and entry into force pending.115

110

See http://www.helcom.fi/about-us. See http://www.helcom.fi/Docuents/Baltic%20sea%20action%20plan/BSAP_Final.pdf. The text of the Convention is available at https://helcom.fi/about-us/convention/. 112 The text of the Convention is available at http://www.blacksea-commission.org/_conventionfulltext.asp. 113 The protocol with the same title was initially adopted with the Convention and other Protocols, but a new Protocol was adopted in 2009. 114 The text of the protocols is available at http://www.blacksea-commission.org/Downloads/ ConventionProtocols.pdf. 115 See http://web.unep.org/unepmap/who-we-are/legal-framework. 111

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4.3.5

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Latin America

In the Caribbean Environment Programme, the Cartagena Convention provides the framework. It was adopted in 1983 and entered into force in 1986. There are three protocols under this convention: the Protocol Concerning Co-operation in Combating Oil Spills in the Wider Caribbean Region, adopted in 1983 and entered into force on 11 October 1986; the Protocol Concerning Specially Protected Areas and Wildlife (SPAW) in the Wider Caribbean Region, adopted on 18 January 1990 and entered into force on 18 June 2000; and the Protocol Concerning Pollution from Land-Based Sources and Activities, adopted on 6 October 1999 and entered into force on 13 August 2010. The Caribbean Regional Co-ordinating Unit (CAR/RCU) located in Kingston, Jamaica, was established as the Secretariat for the Caribbean Environment Programme and Cartagena Convention and its Protocols.116 In this region, the South-East Pacific Action Plan also provides the basis for the regional cooperation for the protection of the marine environment. This Action Plan was adopted together with the Convention for the Protection of the Marine Environment and Coastal Area of the Southeast Pacific (Lima Convention, 1981) and its associated protocols. There are four associated protocols: the Agreement on Regional Cooperation in Combating Pollution in the South East Pacific by Hydrocarbons and other Harmful Substances in cases of Emergency; the Protocol for the Protection of the South East Pacific against Pollution from Land-Based Sources; the Protocol for the Conservation and Management of Protected Marine and Coastal Areas of the South East Pacific; and the Protocol for the Protection of the South East Pacific from Radioactive Pollution. The Action Plan is implemented within the framework of inter-agency cooperation between the Permanent Commission for the South Pacific (CPPS), UNEP and some two dozen agencies, programmes and Convention Secretariats.117

4.3.6

Middle East

In the Regional Conference of Plenipotentiaries on the Protection and Development of the Marine Environment and the Coastal Areas in Kuwait in 1978, the participants agreed to sign the Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution (Kuwait Convention) with the Kuwait Action Plan for the Protection and Development of the Marine Environment and the Coastal Areas and the Protocol Concerning Regional Co-operation in Combating 116

See http://www.unenvironment.org/cep/who-we-are/cartagena-convention. The text of the Convention is available at http://cep.unep.org/cartagena-convention/text-of-the-cartagena-convention. 117 See https://www.unenvironment.org/explore-topics/oceans-seas/what-we-do/working-regionalseas/regional-seas-programmes/south-east. The text of the Convention is available at http://cpps. dyndns.info/consulta/documentos/legal/convenios/CONVENIO%20PARA%20LA% 20PROTECCION%20DEL%20MEDIO%20AMBIENTE%20Y%20ZONA%20COSTERA% 20DEL%20PS/ (Spanish text).

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Pollution by Oil and Other Harmful Substances. The Regional Organization for the Protection of the Marine Environment (ROPME) was initially established in 1979 in accordance with Article XVI of the Kuwait Convention to implement this Action Plan as well as the Kuwait Convention and its Protocols. The ROPME Secretariat was formally established on 1 January 1982.118 Four Protocols have been adopted in addition to the Protocol of 1978: the Protocol Concerning Marine Pollution Resulting from Exploration and Exploitation of the Continental Shelf (1989); the Protocol for the Protection of the Marine Environment against Pollution from LandBased Sources (1990); the Protocol on the Control of Marine Trans-boundary Movements and Disposal of Hazardous Wastes and Other Wastes (1998); and the Protocol Concerning the Conservation of Biological Diversity and the Establishment of Protected Areas.119 In the Red Sea region, the Regional Organization for the Conservation of the Environment in the Red Sea and Gulf of Aden (PERSGA) was established under the Regional Convention for the Conservation of the Red Sea and the Gulf of Aden Environment (Jeddah Convention), signed in 1982.120 The efforts to conclude the Jeddah Convention started in the early 1970s when the Arab League Educational, Cultural and Scientific Organization proposed a program for the protection of the environment of the Red Sea and Gulf of Aden. The PERSGA, as a regional organization, was established in September 1995 under the umbrella of the Arab League and its creation was formally announced in the Cairo Declaration during the first Council meeting in Egypt.121 Under the Jeddah Convention, four protocols have been adopted: the Protocol Concerning the Regional Cooperation in Combatting Pollution by Oil and Other Harmful Substances in Cases of Emergency, 1982; the Protocol Concerning the Conservation of the Biological Diversity and the Establishment of a Network of Protected Areas the Red Sea and Gulf of Aden, 2005; the Protocol Concerning the Protection of the Environment from Land-Based Activities in the Red Sea and Gulf of Aden, 2005; and the Protocol Concerning Technical Cooperation to Borrow and Transfer Experts, Technicians, Equipment and Materials in Cases of Emergency, 2009.122

4.3.7

South Pacific

The Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (Noumea Convention) is a comprehensive umbrella agreement

118

See http://ropme.org/1_WhoWeAre_EN.clx. The texts of the Convention is available at http:// ropme.org/1_KAP_LEGAL_EN.clx. 119 See http://ropme.org/42_ROPME_PROTOCOLS_EN.clx. 120 See http://www.persga.org/inner.php?¼32. 121 See http://www.persga.org/inner.php?id¼313. 122 See http://www.persga.org/inner.php?id¼62. The text of the Convention is available at http:// www.persga.org/Documents/Doc_62_20090211112825.pdf.

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and represents the legal framework of the Action Plan for managing the Natural Resources and Environment of the South Pacific. It constitutes the Pacific region component of the UNEP’s Regional Seas Programme. It entered into force with the Dumping Protocol and the Emergencies Protocol in 1990. The Protocol for the Prevention of Pollution of the South Pacific Region by Dumping was amended in 2006. The Protocol on Emergencies was superseded by the Protocol on Oil Pollution Preparedness, Response and Cooperation in the Pacific Region and Protocol on Hazardous and Noxious Substances Pollution, Preparedness, Response and Cooperation in the Pacific Region of 15 March 2000.123

4.3.8

Features of RECs

The general rules set forth in RECs have been developed and enhanced by protocols on respective concrete issues. While earlier protocols mainly focused on the prevention and control of marine pollution, new protocols on the protection of biological diversity are adopted in response to the development of the idea of environment. It should also be noted that all RECs establish a certain mechanism for the implementation of rules and measures under that convention. Internal organ/organs are designated with the power to ensure the implementation of the rules and measures decided under the Convention and State Parties are under an obligation to take effective measures for implementation of and compliance with them. In some conventions, the measures for implementation are specifically provided in the Convention and an internal organ is endowed with the power to consider reports submitted by State Parties on the measures they have taken to comply with the obligations under the convention.124 As far as the structure under RECs is concerned, while the OSPAR Convention and HELCOM Convention establish formal REOs with internal organs,125 most RECs establish REAs rather than REOs with less formal institution and the Conferences or Meetings of the Parties play the role as a plenary organ. While a Secretariat is established under many RECs, some of them designate the role of the Secretariat to the UNEP.126 It is also necessary to note that in Asia the arrangements not based

123

See https://www.sprep.org/convention-secretariat/noumea-convention. The text of the Convention is available at http://www.sprep.org/attachments/NoumeConventintextATS.pdf. The text of the amended Protocol on Dumping is available at https://www.sprep.org/attachments/Legal/ SPREPDumpingProtocolamended.doc. The texts of the new protocols are respectively available at https://www.sprep.org/convention-secretariat/noumea-convention. 124 For example, in Tehran Convention, the Conference of the Parties is endowed with the competence to ensure the implementation of the conventional rules (Art. 22) and the Secretariat is established by this convention (Art. 23), supra note 107. 125 HELCOM, supra notes 110–11 and OSPAR, supra note 106. 126 For example, in Nairobi Convention the UNEP is designated as the secretariat of this Convention and the Meetings of the Contracting Parties is designed to play a principal role in this mechanism, supra note 99 et seq.

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on a formal convention are preferred as the bases for the PPME while RECs play an essential role for that purpose.

5 Concluding Remarks: Toward Better Governance of the Marine Environment as a Whole From the examination in the previous sections, it can be concluded that the mechanisms for CMFS and for PPME have developed through independent processes and that they are different in terms of nature and structure. At the same time, however, the new approaches introduced since the 1990s have resulted in the overlap and interaction between the legal rules concerning these two matters. The fishery resources are considered to constitute a part of marine living species and the basic ideas of international environmental law concerning living species, including precautionary approach, ecosystem approach, and the protection of biological diversity and habitat are required as the bases for the rules and measures for CMFS. When we admit that there are significant and complex overlap and interaction between CMFS and PPME, it may be necessary to consider the way to search for a coherent and integrated approach by coordinating and harmonizing the rules and functions concerning these two matters. For this purpose, mutual communication and understanding between the two mechanisms is essential and the attempts of some organizations are worthwhile being noted. The FAO’s involvement in CMFS started with the UN Conference on Environment and Development (UNCED) in 1992 and since then it has maintained the cooperation with the UN mechanisms for environmental protection.127 The IMO, which has traditionally contributed to the development of legal rules and mechanisms to PPME, started its efforts for the regulation of the IUU fishing. As far as the cooperation between RFMO and REO is concerned, the OSPAR Commission concluded the Memorandum of Understanding (MoU) respectively with NASCO in 2013 and with NEAFC in 2014. Under those MoUs, recognizing their complementary competences, two organizations arrange the mechanism for cooperation.128 The cooperation between two different types of mechanisms may not be so easy. However, cooperative mechanisms may substantially contribute to the coordination and harmonization of the legal rules concerning two different but closely interrelated matters.

127

Preface for the Code of Conduct for Responsible Fisheries; see http://www.fao.org/docrep/005/ v9878e/v9878e00.htm. 128 Memorandum of Understanding between the North Atlantic Salmon Conservation Organization and the OSPAR Commission, https://www.ospar.org/site/assets/files/1357/nasco_mou.pdf, and Memorandum of Understanding between the North East Atlantic Fisheries Commission (NEAFC) and the OSPAR Commission; see https://www.ospar.org/site/assetsfiles/1357/mou_ neafc_ospar.pdf and https://www.neafc.org/collective-arrangement.

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References Boisson-Chazournes L (2010) Les relations entre organisations régionales et organisations universelles. Recueil des Cours 347:79 Churchill R, Lowe V (1999) The law of the sea, 3rd edn. Manchester University Press, Manchester Proelss A, Maggio AR, Blitza E, Daum O (2017) United Nations Convention on the Law of the Sea: commentary. CH Beck/Hart/Nomos, Munich/Oxford/Baden-Baden Rothwell D, Stephens T (2016) The international law of the sea, 2nd edn. Hart Publishing, Oxford Sands P, Klein P, Bowett DW (2009) Bowett’s law of international institutions, 6th edn. Sweet & Maxwell: Thomson Reuters, London Schermers HG, Blokker NM (2018) International institutional law, 6th revised edn. Brill, Leiden

Cases Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, p 280 Whaling in the Antarctic (Australia Japan: New Zealand intervening) Judgment, I.C.J. Reports 2014, p 226 Request for Advisory Opinion submitted by the Sub-Regional Commission, Advisory Opinion, 2 April 2015, ITLOS Reports 2015, p 4 Chagos Marine Protected Area (Republic of Mauritius v. The United Kingdom of Great Britain and Northern Ireland), Arbitral Award of 18 March 2015 South China Sea Arbitration, Award of 12 July 2016

Mariko Kawano Professor of international law at the Faculty of Law, Waseda University (since 2004). She has mainly conducted research on and has published in peaceful settlement of international disputes, law of the sea, international responsibility of States, and international investment law. She has worked with ministries of Japan, including as the councillor of the Headquarters for Ocean Policy (2012–2016) and as the Chairperson of the Maritime Committee of the Ministry of Land and Transport (since 2015).

Chapter 3

International Organizations and the Protection of the Marine Environment Pradeep A. Singh

Abstract One response to the numerous governance challenges faced with respect to the oceans, a shared space, is the creation of international organizations. Typically comprising of representations from member States and with pre-defined mandates, international organizations strive to resolve specific issues. This chapter will provide a categorical overview of these organizations and examine how they operate in isolation, as well as interact with each other, in striving to protect the marine environment. Given the institutional complexity surrounding the individual regimes that create them, the outcomes arrived at by most international organizations occasionally do not represent the collective interests of all member States. Nevertheless, the existence of a common avenue in which marine environmental problems can be raised and discussed as a whole has indeed resulted in the adoption of notable measures to address those problems. Such outcomes would not have been possible without the mechanics that are peculiar to international organizations. Ultimately, this analysis demonstrates the extent to which international organizations formulate the law of the sea and discern some patterns on how their efforts has advanced the protection of the marine environment in recent years.

1 Introduction The United Nations Convention on the Law of the Sea (UNCLOS) is the starting point for all discourse on the law of the sea, including the protection of the marine environment. The adoption of UNCLOS in 1982 marked a significant phase in the development of a foundational framework for managing and governing the oceans and placed substantial emphasis on the protection of the marine environment.1 While there are many institutions involved in the law of the sea and maritime affairs, this

1

Rothwell and Stephens (2016), p. 517; Redgwell (2006), pp. 180–182.

P. A. Singh (*) Institute for Advanced Sustainability Studies (IASS), Potsdam, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2020 M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea, https://doi.org/10.1007/978-3-030-42671-2_3

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chapter focuses on the institutional framework relating to the governance and protection of the marine environment. It particularly aims to provide an overview of these various actors, including their functions and mandate, and examine how they interact with each other in striving to protect the marine environment. This chapter will begin by identifying and classifying the multitude of organizations that operate in the sphere of marine environmental protection into three categories. Next, the chapter will examine how these various institutions interact (and in some instances overlap) with each other in carrying out their respective mandates and functions. In particular, it seeks to observe how they coordinate their activities and how they liaise with each other in carrying out their affairs more effectively and efficiently. Pertinently, while the various organizations each have their specific purposes and obligations, this chapter observes that they all share one common sentiment, to wit, ensuring the effective protection of the marine environment. This chapter contends that this objective can be effectively advanced through increased regime interaction and inter-organizational cooperation.

2 The Institutional Framework for Marine Environmental Governance The various actors that play a role in marine environmental governance can be grouped into three categories. The first category comprises of organizations created by UNCLOS, the second category consists of institutions that form part of the United Nations ‘family’, while the third category includes actors that function and operate within other regimes that are either connected or related to the marine environment or concerned with it. This section illustrates these three categorizations further.

2.1

The UNCLOS Regime

The entry into force of UNCLOS in 1994 breathed life into three establishments: The International Seabed Authority, the Commission on the Limits of the Continental Shelf, and the International Tribunal for the Law of the Sea. While the International Tribunal for the Law of the Sea (ITLOS) undoubtedly contributes significantly to the jurisprudence of the law of the sea and marine environmental protection, it is excluded from the scope of this study on the premise that it is a judicial body that is primarily concerned with dispute resolution and not a regulatory body or agency, which is the main focus of this study. Scholarship on the influence of ITLOS as well as other judicial bodies in furthering marine environmental protection can be found elsewhere.2 2

Boyle (2007) and Stephens (2009).

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The International Seabed Authority (ISA) was established to administer Part XI of UNCLOS. Specifically, the ISA is responsible for regulation and governance of the exploration and exploitation of minerals resources found in the seabed and its subsoil in areas beyond national jurisdiction (otherwise known as the ‘Area’) which have been declared common heritage of mankind.3 More importantly, the ISA stands out compared to other international organizations because it has the mandate to adopt (and enforce) procedures, rules and regulations as well as to enter into legally binding contractual obligations with State sponsored operators conducting activities in the area.4 Concerning the protection of the marine environment, the ISA has the obligation to adopt necessary measures ‘to ensure effective protection for the marine environment from harmful effects which may arise from (activities in the Area)’.5 In the course of its development of mining regulations and non-binding recommendations and guidelines for contractors, the ISA has particularly paid close attention to managing the environmental impacts of deep seabed mining activities as it moves closer towards commencing large-scale commercial mining.6 In executing its mandate to develop the resources of the Area, the ISA is obliged to comply with the provisions of UNCLOS and the Agreement Relating to the Implementation of Part XI of UNCLOS 1994, as well as established and emerging norms of international environmental law such as environmental impact assessments, the precautionary approach, ecosystems-based management and adaptive management.7 A key subsidiary organ within the ISA set-up is the Legal and Technical Commission (LTC), which serves as the expert advisory body to the Council (which is the executive organ of the ISA). The LTC is charged with a wide range of vital duties, including to consider and make recommendations to the Council on whether or not a particular application to explore or exploit deep seabed minerals in the Area should be granted and to draft rules, regulations and procedures to govern the entire regime. The second body established by UNCLOS is the Commission on the Limits of the Continental Shelf (CLCS). It is created through Annex II of UNCLOS and serves the narrow and specific function of making recommendations based on submissions by coastal States claiming a continental shelf beyond 200 nautical miles under Article 76 of UNCLOS. As this has a bearing on what actually belongs to the ‘Area’ and is therefore subjected to the mandate of the ISA and the common heritage of mankind,8 the function of the CLCS is indeed a pivotal one. It should be noted that, unlike the ISA, the CLCS is not a full-fledged international organization with a complex institutional structure. Rather, the CLCS consists of a group of some 21

3

Art. 136, UNCLOS. Markus and Singh (2016). 5 Art. 145, UNCLOS. 6 Rothwell and Stephens (2016), pp. 20–21. 7 Jaeckel (2017), Lodge (2015a, b), Makgill and Linhares (2016) and Wedding et al. (2013). 8 Franckx (2010). 4

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expert members elected by member States to UNCLOS who serve in their personal capacity.9 Pertinently, although the CLCS does not have the authority to consider, influence or shape environmental themes, its function of ascertaining (with finality) which areas fall within national jurisdiction and which do fall within the jurisdiction of the ISA is important as it determines who has the mandate to exercise jurisdiction over resources and take measures to protect the marine environment. Furthermore, preparing a submission to the CLCS entails the compiling of detailed hydrographical and geological information pertaining to the seabed, which essentially requires significant marine scientific research and exploration endeavours on the part of the coastal State.10 This information could subsequently be relied on by the coastal State or regional organizations operating in that part of the ocean in taking measures to protect fragile ecosystems and designate marine protected areas. Finally, the importance of the meeting of the State Parties to UNCLOS (SPLOS) should be mentioned. SPLOS serves an informative forum and provides member States with the platform to deliberate on matters relating to UNCLOS.11 While the nature and exact mandate of these meetings are ambiguous, its ‘principal point of focus is a review of the work of the ITLOS, the ISA, and the CLCS’.12 In this sense, there are prospects for marine environmental concerns faced by those institutions to be raised and discussed among member States who should, as parties to the treaty, have a say in the direction in which UNCLOS is heading. Nevertheless, given that the purpose, functions, and powers of the SPLOS meetings have not been clearly defined under UNCLOS, and coupled with the fact that matters involving the law of the sea are by and large political in nature, the reality is that the more pertinent and pressing issues have traditionally been dealt with by the UN General Assembly and the wider UN system.13

2.2

The United Nations ‘Family’ Organizations

The UN ‘family’ here refers to the UN General Assembly and its organs and specialized UN institutions that contribute to the law of the sea and marine environmental protection even though that is not their primary function.14 At the outset, it should be clarified that as it would be a near impossible task to outline each organization and their role, this section will only focus on key organizations involved in marine protection, namely the UN General Assembly (UNGA), the

9

Annex II, Article 2, UNCLOS. See also Commission on the Limits of the Continental Shelf (2018). Jenisch (2010). 11 Tanaka (2015a), p. 34. 12 Rothwell and Stephens (2016), p. 21. 13 Harrison (2015a), pp. 389–390. 14 Churchill and Lowe (1999), p. 22. 10

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International Maritime Organization (IMO), the Food and Agriculture Organization (FAO), the UN Educational, Scientific and Cultural Organization (UNESCO), and the UN Environment Program (UNEP). The UN and in particular the UN General Assembly (UNGA), given its global geographical and political representation, is arguably one of the most crucial platforms in furthering the law of the sea and marine environmental protection. First, the contribution of UNGA in the making of customary international law, enhancing legitimacy and democratisation in decision-making in matters pertaining to the law of the sea must be acknowledged, especially with respect to non-State parties to UNCLOS.15 For political reasons, the more pertinent and pressing issues on the law of the sea have traditionally been resolved at the UN level as opposed to within the UNCLOS set up. Second, through the role it plays in promoting sustainable development, UNGA has pledged significant attention to the protection of the marine environment and the conservation of living resources. For instance, the Sustainable Development Goals adopted in 2015, in particular Goal 14, emphasizes the need to ‘conserve and sustainably use the oceans, seas and marine resources for sustainable development’.16 Expressing political aspirations is an effective way to encourage the adoption of policies and practices among member States and thereby galvanize global-scale initiatives towards environmental protection.17 Third, it should be remembered that the path leading to UNCLOS was created through the UN by facilitating the diplomatic conferences that lead up to its eventual drafting and adoption in 1982. Pertinently, it was also the UN which paved the way for the wide acceptance (and coming into force) of UNCLOS by resolving the deadlock pertaining to the deep seabed regime through the negotiating of the Agreement Relating to the Implementation of Part XI of UNCLOS in 1994. It subsequently also facilitated a second implementation agreement in the form of the UN Fish Stocks Agreement in 1995. Presently, following a UNGA Resolution in June 201518 to develop an international legally-binding instrument under UNCLOS for the ‘conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction’, progress is being made for the possible of a third implementation agreement to UNCLOS.19 Fourth, apart from developing instruments for the advancement of UNCLOS and its objectives, another valuable contribution of UNGA is the annual review and implementation of UNCLOS and matters concerning the oceans and maritime affairs. This practice, in the form of a report prepared by the UN Secretary-General and presented to UNGA followed by a resolution passed by the latter, has been continuing ever since UNCLOS entered into force in 1994.20 The UN Open-ended

15

Boyle and Chinkin (2007), pp. 106–108; Tanaka (2015a), p. 347. See UNGA (2015) Resolution A/RES/70/1. 17 Bodansky (2010). 18 See UNGA (2017) Resolution A/RES/69/292. 19 Barnes (2016). 20 Tanaka (2015a), p. 36. 16

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Informal Consultative Process on Oceans and the Law of the Sea (ICP), a resourceful forum created through a UNGA Resolution adopted in 199921 and meets annually since 2002, also creates an avenue for independent experts and observers to take part in discussing a wide range of marine affairs. The outcome of the ICP meetings is subsequently relied upon in the annual UNGA review process.22 Fifth, special mention ought to be given to the Division of Ocean Affairs and the Law of the Sea (DOALOS), one of the units belonging to the Office of Legal Affairs to the UN Secretariat. DOALOS performs the vital function of facilitating and administering all UN operations and responsibilities pertaining to ocean affairs and the law of the sea, such as the UN Secretary General’s annual report, the IPC meetings, the SPLOS meetings and the BBNJ Preparatory Committee meetings, providing UN member States and intergovernmental organizations a wide range of technical services such as information and advice on UNCLOS and related instruments, and supporting the other institutions within the UN system in matters within this domain.23 Sixth and lastly, the general UN set up also comprises of a scientific advisory body known as the Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP). This independent body consists of numerous experts acting in their personal capacity to advise the UN system on the scientific aspects of marine environmental protection. GESAMP undertakes an interdisciplinary and science-based approach to marine environmental affairs and seeks to coordinate and streamline the individual efforts taken by the various UN agencies through a joint advisory mechanism. It is also responsible for the publication of the GESAMP Reports and Studies Series in which the results of its major reviews, analyses and assessments are published.24 The United Nations’ contribution to the development of the law of the sea can be gleaned further from several key UN-related organizations that possess specific mandates respectively. The International Maritime Organization (IMO) has been described as ‘the organization that has probably had the most substantial direct effect upon the law of the sea’ and has made important progress in regulating marine pollution and navigation safety through its expert advisory committees, the Maritime Safety Committee (MSC) and the Marine Environment Protection Committee (MEPC).25 The ISA assumes a dominant role in marine environmental protection through standard setting, the issuance of non-binding recommendations, and by convening diplomatic conferences for States to formally adopt binding instruments. In this regard, some multilateral treaties accord the IMO and its subsidiary organs the powers to adopt or amend standards through the use of annexes or schedules to

21

See UNGA (1999) Resolution A/RES/54/33. Tanaka (2015a), p. 36. 23 de La Fayette (2006). 24 Rothwell and Stephens (2016), p. 366. 25 Churchill and Lowe (1999), p. 23. 22

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those treaties. In the case of marine environmental protection, the International Convention on the Prevention of Pollution from Ships 1973/1978 (MARPOL) prescribes certain procedures for the Marine Environment Protection Committee (MEPC) to adopt amendments to established technical standards related to marine pollution from ships, which would then become binding on member States unless they specifically object to it.26 It is also pertinent to note that IMO rules and standards could have an impact on the interpretation of UNCLOS through ‘rules of reference’,27 notably in cases where UNCLOS makes reference to ‘applicable’ or ‘generally accepted’ international rules and standards or recommendations established through or by a ‘competent international organization’.28 Furthermore, even if a non-binding recommendation is issued at the initial stage, this is usually followed by the formal stage of adoption at a diplomatic conference. For instance, the IMO Guidelines for Ship Recycling 2003 later transformed into the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships 2009 (albeit not yet in force). Another way in which the IMO contributes directly to marine environmental protection is through designating ‘Particularly Sensitive Sea Areas’ (PSSAs). PSSAs serve to protect marine areas that may be vulnerable to damage by international maritime activities by enabling the adoption of strict measures pertaining to shipping routes in those areas. Lastly, it should also be mentioned that the IMO performs secretarial as well as technical functions for the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 (London Convention) and Protocol 1996 (London Protocol), which strives to prevent pollution at sea through dumping activities.29 The UN Food and Agriculture Organization (FAO), especially through its Committee on Fisheries, has made significant contributions to fishery science and methods to conserve marine living resources30 and serves as a platform for the negotiation of instruments in this area. In this respect, the Agreement to Promote Compliance with International Conservation and Management by Fishing Vessels in the High Seas 1993 (FAO Compliance Agreement) and the recently entered into force (June 2016) Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing 2009 has been adopted under the auspices of the FAO. Additionally, the FAO also utilizes voluntary and non-binding instruments in tackling challenges faced in the conservation and sustainable use of fisheries,31 such as the Code of Conduct on Responsible Fisheries 1995 and four International Plans of Action. It is pertinent to note that these FAO instruments do have a bearing on the interpretation and implementation of UN Agreement for the Implementation of the Provisions of UNCLOS relating to the

26

de La Fayette (2001). Karim (2015), p. 34; Tanaka (2015a), p. 35; Kachel (2008), pp. 86–90. 28 Birnie et al. (2009), pp. 76 and 404; IMO (2014), p. 8. 29 VanderZwaag (2015), p. 143. 30 Churchill and Lowe (1999), p. 23. 31 Boyle (2006), p. 50. 27

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Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 1995 (UN Fish Stocks Agreement) and UNCLOS.32 In addition to the above, the FAO has also been instrumental in establishing several Regional Fisheries Management Organizations (RFMOs) that have the objective of addressing challenges relating to fish stocks. As these regimes have some degree of autonomy and independence from the UN system, they will be explored in the following section. The UN Educational, Scientific and Cultural Organization (UNESCO) is responsible for the administration of the Convention Concerning the Protection of World Cultural and Natural Heritage 1972. As of January 2018, 49 marine areas have been inscribed on the UNESCO World Heritage List for their exceptional natural features.33 Established under the auspices of UNESCO, the Intergovernmental Oceanographic Organization of UNESCO (IOC) and its Advisory Body of Experts on the Law of the Sea also play an important role in advancing marine scientific research and the management, conservation and protection of the marine environment.34 The UN Environmental Programme (UNEP) was established in 1972 following the UN Stockholm Conference on the Human Environment 1972. In general, UNEP has overall responsibility for environmental problems among United Nations agencies and fulfils this role through representation in conferences, workshops, working groups and other discussions held by those agencies, as well as by disseminating environmental information through the publication of periodical assessments and reports. While often being criticized of being weak, unstructured and ambivalent, UNEP has been instrumental in establishing or propelling various mechanisms, efforts and measures to protect and preserve the environment as well as to address threats such as pollution and overexploitation of resources.35 The UNEP has been particularly influential in designing and supporting Regional Seas Programmes (RSPs) and Action Plans that aspires to address ‘the accelerating degradation of the world’s oceans and coastal areas by engaging neighbouring countries in comprehensive and specific actions to protect their common marine environment’.36 Similar to the numerous RFMOs established through the FAO, these RSPs have some degree of autonomy and independence from the UN system. As such, these regimes will be considered in the following section. From the above, it can be surmised that the UN and its related organizations have contributed significantly to the overall development of the international law of the sea. Nevertheless, a substantial part of agenda setting, implementation and execution are carried out by bodies that fall outside the UN family. This will be considered next.

32

Tanaka (2015a), p. 36. World Heritage Convention and UNESCO (2018). 34 Harden-Davies (2016), p. 261; Rothwell and Stephens (2016), pp. 573–574. 35 Ivanova (2007). 36 UNEP (2018). 33

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Beyond UNCLOS and the UN ‘Family’

This section will consider the role of three different groups of actors, namely (a) intergovernmental and hybrid bodies, as well as non-governmental organizations, industry groups and independent expert networks, (b) regional organizations, and (c) other separate treaty regimes dealing with environmental-related themes that influence the direction of the law of the sea. Although the number of intergovernmental and hybrid bodies that actively contribute to marine environmental governance is more than a handful, only three bodies will be discussed here, namely the International Hydrographic Organization (IHO), the International Council for the Exploration of Seas (ICES), and the International Union for Conservation of Nature and Natural Resources (IUCN). These three bodies have been selected on the premise that they have attained wide reputation in assisting effective policy-making and therefore are often granted observer status at other international organizations, regularly invited to participate in their workshops or consultative processes, and in some occasions specifically mandated to provide direct scientific and technical advice to decision-makers. The IHO is an intergovernmental organization that aims to survey the oceans and compile hydrographic data. These scientific data are essential for all maritime activities, including but not limited to navigation, construction of onshore and offshore structures such as ports and renewable energy infrastructure, resource exploration, and more pertinently the protection of the marine environment.37 The ICES is an intergovernmental organization that provides scientific advice to regional regimes in the North Atlantic and the Baltic Sea to promote sustainable use of the marine environment and protect marine ecosystems. This function is executed through its two sub-committees, the Advisory Committee on Fisheries Management and the Advisory Committee on the Marine Environment.38 The International Union for Conservation of Nature and Natural Resources (IUCN) is a ‘hybrid organization’ with representation from governments, governmental agencies, non-governmental organizations, and groups of experts and scientists.39 Recently, the IUCN was treated by the ITLOS as an ‘intergovernmental organization’ and invited to submit a written statement in proceedings.40 Apart from intergovernmental and hybrid organizations, an array of non-governmental organizations (NGOs), academic think-tanks, industry groups and independent expert networks also play a largely influential role in shaping the law of the sea and its environmental direction. These bodies routinely have consultative or observer status at international organizations. As it would be an insurmountable task to identify each of them in this study, only a fraction of them will be 37

Pfeiffer (2006), p. 197. Braethan (1998), p. 29. 39 Willetts (2011), pp. 72–73. 40 See Order 2013/2 dated 24 May 2013, Case No. 21 of ITLOS (Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission). 38

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discussed. With respect to seabed mining, NGOs or non-profits such as Greenpeace International, Conservation International, and the Pew Charitable Trust are observers at the ISA, as are academic think-tanks and research groups such as the Institute for Advanced Sustainability Studies. Although they have no voting rights, this status allows them to raise interventions and make written submissions or comments at appropriate stages. In relation to shipping, industry representing shipowners and marine insurance agencies have a large presence. For example, the International Chamber of Shipping and the International Council of Classification Societies have consultative status at the IMO. In recent years, independent expert networks have also found a place in agenda-setting as well as at the negotiation table. They primarily provide scientific input and assist in policy-framing efforts. For instance, the Deep Ocean Stewardship Initiative and the Deep Sea Conservation Coalition have been accorded with observer status at the ISA and actively participate in its official proceedings. Next, the significance of regional-focused regimes will be highlighted. In particular, this refers to the Regional Seas Programmes (RSPs) which exist through UNEP or independently from it, and the numerous Regional Fisheries Management Organizations (RFMOs) that have been created by or through the FAO or independently from it as well. As mentioned above, these regional arrangements are discussed here because they are mostly autonomous from the UN system, although they may receive some financial and technical assistance, as well as hosting facilities from UNEP or FAO. Through the initiatives of UNEP, notably the creation of the Regional Seas Programme (RSP) in 1974, numerous regional arrangements have come into existence. To date, there are 18 RSPs and Action Plans (of which UNEP hosts 7) in existence with the participation of some 143 countries. The RSPs are located in the following marine areas: Mediterranean, ROPME Sea Area (the Gulf of Arabia and Oman leading out into to Arabian Sea), Western Africa, South-East Pacific, Red Sea and Gulf of Aden, Wider Caribbean, Eastern Africa, Pacific, Black Sea, North-East Pacific, East Asian Seas, South Asian Seas, Northwest Pacific.41 While most have evolved into the conclusion of a regional treaty with their respective associated protocols dealing with specific matters,42 others remain in the form of soft law 41

UNEP (2018). Namely, the Convention for the Protection of the Mediterranean Sea against Pollution 1976 (Barcelona Convention), the Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution 1978 (Kuwait Convention), the Convention for Cooperation in the Protection, Management and Development of the Marine and Coastal Environment of the Atlantic Coast of the West, Central and Southern Africa Region 1981 (Abidjan Convention), the Convention for the Protection of the Marine Environment and Coastal Zones of the South-East Pacific 1981 (Lima Convention), the Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment 1982 (Jeddah Convention), the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region 1983 (Cartagena Convention), the Convention of the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region 1985, (Nairobi Convention), the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region 1986 (Noumea Convention), the 42

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instruments such as ‘Action Plans’ or memoranda of understanding and their associated outline strategies.43 It is to be stressed here that most of these regional arrangements have a central body comprising of representatives and experts from member States, which serves to administer the respective instruments in accordance with the objectives and purposes therein. While UNEP administers some of these regimes, more than half of them are administered autonomously.44 Independent from, but routinely operating in partnership with, UNEP are several independent regimes in the Baltic Sea, North-East Atlantic, Caspian Sea, Antarctic and Arctic. All except the latter have a framework treaty regime to govern the respective marine areas.45 As for the Arctic, the eight Arctic countries adopted the Arctic Environmental Protection Strategy 1991 (AEPS). Similar to the RSP setting, a commission, conference of parties, or council is established as the institutional body to implement and govern regime operations, for instance, the Baltic Marine Environment Protection Commission (HELCOM), the OSPAR Commission, the Conference of Parties to the Tehran Convention, the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) and its Scientific Committee (SC-CCAMLR), and the Arctic Council. The FAO has to some extent played a role in the establishment of Regional Fisheries Management Organizations (RFMOs), although there exist numerous examples which have been set up independently. It is through the RFMOs that the cooperative mechanism for the management of living resources envisaged by UNCLOS is effected.46 Through UNCLOS and the UN Fish Stocks Agreement, member States interested in fisheries within a shared area are obliged to cooperate through bilateral or regional efforts. For highly migratory species (mostly tuna), some existing regimes include the International Commission for the Conservation of Atlantic Tunas (ICCAT), the Indian Ocean Tuna Commission (IOTC) and the Commission for the Conservation of Southern Bluefin Tuna (CCSBT).47 As for non-tuna stocks, examples of some RFMOs are the North-East Atlantic Fisheries

Convention on the Protection of the Black Sea Against Pollution 1992 (Bucharest Convention), and the Convention for Cooperation in the Protection and Sustainable Development of the Marine and Coastal Environment of the North-East Pacific 2002 (Antigua Convention). 43 Such as the East Asian Seas Action Plan (EASAP), Northwest Pacific Action Plan 1994 (NOWPAP), and the South Asian Seas Action Plan 1995 (SASAP). 44 Freestone and Salman (2007), p. 349. 45 Notably, the Convention for the Protection of the Marine Environment of the Baltic Sea 1992 (Helsinki Convention), the Convention for the Protection of the Marine Environment of the NorthEast Atlantic 1992 (OSPAR Convention), the Framework Convention for the Protection of the Marine Environment of the Caspian Sea 2003 (Tehran Convention), and the Antarctic Treaty System (comprising of the Antarctic Treaty 1959, the Convention for the Conservation of Antarctic Seals 1972, the Convention for the Conservation of the Antarctic Marine Living Resources 1980, and the Protocol on Environmental Protection to the Antarctic Treaty 1991). 46 Rayfuse (2015), p. 440. 47 Unterweger (2015).

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Commission (NEAFC), the Northwest Atlantic Fisheries Organization (NAFO), the North Atlantic Salmon Conservation Organization (NASCO), the South-East Atlantic Fisheries Organization (SEAFO), the South Pacific Regional Fisheries Management Organization (SPRFMO), the General Fisheries Commission for the Mediterranean (GFCM), and the CCAMLR in the Antarctic. There are five broad categories of measures that are taken by RFMOs, to wit, ‘measures relating to stock assessment, management of fishing effort, allocation of fishing opportunities, compliance and enforcement, and protection of the wider marine environment.48 Even though the FAO exercises minimal authority over most of the RFMOs, it nevertheless still plays a ‘catalytic and coordinating role by bringing together these institutions to discuss common challenges and what can be done to address them’.49 While region-based mechanisms have their inherent drawbacks such as outliers and free riders as well as ineffective enforcement, such initiatives have proven to be a useful approach towards the conservation of living resources and the protection of the marine environment. The RSP arrangements allow for a proven environmental protection framework to be applied from one region to another and modified accordingly to specifically tailor the needs and priorities of the different geographical location.50 Despite some shortcomings especially in addressing pollution to the marine environment from land-based sources as well as lack of enforcement bite, RSPs have in the 40-some years of its existence brought a positive influence in the protection of the marine environment.51 Likewise, the RFMOs have made a positive and major contribution in the field of fisheries52 despite the challenges faced concerning regime participation, allocation of the total allowable catch and unregulated fishing.53 While such institutional measures are largely effective in the region in which it operates among parties, the greatest challenge faced by RFMOs is the enforcement of conservation measures adopted in the high seas against non-parties.54 In response to this challenge, the growing attention towards port State enforcement measures provides a possible solution to this debacle and can help supplement the efforts by RFMOs to promote the conservation of living resources.55 Finally, the existence of other separate multilateral treaty regimes that deal with environmental-related themes in the context of the marine environment will be highlighted. Again, as it would be impossible to identify all the relevant regimes with the limited space here, only a handful of such regimes will be discussed with the aim of providing some examples rather than an exhaustive study.

48

Rayfuse (2015), p. 450. Harrison (2011), p. 233. 50 Harrison (2015b), p. 69; Hulm (1983), p. 4; Haas (1989). 51 Oral (2015), pp. 361–362. 52 Churchill and Lowe (1999), pp. 23–24. 53 Molenaar (2003). 54 Gillespie (2011), p. 446. 55 Palma-Robles (2016), pp. 151–152. 49

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Established in 1946 through the International Convention for the Regulation of Whaling, the International Whaling Commission (IWC) is mandated to regulate whaling activities. In this regard, a moratorium on commercial whaling has been in place since the 1980s with the objective of improving fish stocks. Nevertheless, it is arguable that the regime has transformed from treating whales as a resource in the 1940s into considering them as living creatures with intrinsic value.56 Another related regime is the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 and the London Protocol 1996 (LC/LP). These regime has been focusing specifically on the issue of dumping at sea (or ocean dumping), with particular attention to industrial wastes. The governing bodies to the LC/LP regularly review the types and amounts of permitted dumping, as well as addresses emerging themes such as ocean fertilization.57 Moving on to biodiversity, the overarching treaty governing this subject is the Convention on Biological Diversity 1992 (CBD). In the context of the marine environment, as the human population largely relies on fish stocks for food, the health of the marine environment and its ecosystems is critical to ensure continuous supply to meet this demand. The decisions adopted by the Conference of Parties has a bearing on member States, particularly through the establishments of Ecologically or Biologically Significant Marine Area (EBSAs). The CBD, through Article 22, further requires member States to ‘implement the CBD consistently with the rights and obligations of States under the law of the sea’. As such, measures taken under the CBD regime has some levels of implication to other regimes that operate with specific mandates pertaining to the marine environment.58 As a whole, this sub-section has identified the extensive impact that non-UNCLOS and non-UN related agencies have on shaping the law of the sea and influencing marine environmental protection measures. It is important to recall that these actors operate within the same sphere as UNCLOS organizations and UN agencies do. Given the multiplicity of international organizations and regimes that operate in this specific area of governance, issues pertaining to overlapping jurisdiction, gaps in governance, as well as the adoption of conflicting or inconsistent measures would inevitably arise. The following section addresses these concerns.

3 The Fragmentation Quagmire: Institutional Interactions, Coordination and Cooperation Due to the high number of institutional frameworks that consider differing issues surrounding the protection of the marine environment within their remit, the concern of fragmentation inevitably arises. Essentially, the concern is that there are overlaps 56

Gillespie (2005). Sielen (2009). 58 Boyle (2005). 57

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in the functions of institutions as well as the measures and initiatives they adopt. On the one hand, the problem of fragmentation is a valid one as regimes in the law of the sea are largely ‘specialised’ regimes that operate within pre-determined mandates assigned to it by States. This gives rise to the issue of competence when dealing with matters that are not assigned to an individual regime, such as the protection of the marine environment.59 In the law of the sea, the modern approach of regulating activities either by sectoral and spatial means has led to numerous occurrences of shared competence (and in some instances, such as in areas beyond national jurisdiction, of no clear competence). Lack of coordination and even conflict between regimes, such as differing efforts taken, for instance, is an example where the proliferation of treaty regimes may not necessarily result in greater outcomes with respect to the wellbeing of the marine environment.60 On the other hand, while recognizing that the concern of fragmentation is valid one, neither is it necessarily the case that the current conditions of multiplicity in marine environmental protection are wholly dysfunctional, nor does it necessarily operate as an obstacle to effective marine environmental protection. In fact, this could mean that the matter at hand is regulated more extensively, such as designating an ecologically important marine area (taking the example of the Great Barrier Reef in Australia) as a marine protected area under national law, a ‘special area’ under MARPOL and a PSSA through the IMO, as well as a World Heritage site under UNESCO.61 Thus, even though regimes typically operate in isolation (and yet concurrently) in the furtherance of their own cause, there is the potential for some convergence, e.g. the possibility for various measures to be adopted under different mandates to protect the marine environment. It must be acknowledged, however, that different regimes have different priorities, and that there are limits to their abilities to adopt measures that might contradict with the purpose of their design. For instance, the ISA’s raison d’être is to develop seabed mining regulations. Now, the prevailing view is that seabed mining could cause potentially irreversible harm to the marine environment, deep sea ecosystems, and its inhabitants.62 However, in theory, the ISA’s mandate to take effective measures to prevent harmful effects to the marine environment from seabed mining activities provides an avenue to ensuring that some parts of the international seabed (particularly the most vulnerable and highly sensitive areas) are closed to such activities and are accorded with some levels of protection from human disturbances. In practice, however, this might not be the case. In 2017, an exploration license for polymetallic sulphides was granted to Poland despite it being pointed out to the Council of the ISA by a non-governmental organization that parts of the concerned area, known informally

59

Harrison (2011), pp. 237–242. Bodansky (2010), p. 35. 61 Van Dyke and Broder (2015), pp. 69–71. 62 Boetius and Matthias (2018). 60

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as the ‘Lost City’, has already been identified as an EBSA under the CBD.63 It should be noted, however, that while exploration licenses are granted for a vast area, it is expected that a subsequent exploitation license will only cover a fraction of the area that has been explored.64 Although having more tools in the toolbox could give a cluttered, arbitrary or inefficient impression, it could also be seen as providing more avenues for solutions or alternative options. On the one hand, having multiple forums dealing with a common subject matter could lead to the phenomenon of ‘forum shopping’ or ‘regime shifting’, where States choose to introduce related issues in different forums where they perceive their interests would be better advanced. One example is whaling States choosing to pursue the regulation of whaling through the mechanics of the Convention on International Trade in Endangered Species 1973 (CITES), which allows for more favourable outcomes in line with their interests, as opposed to doing so under the prevailing instrument for whaling, the International Convention for the Regulation of Whaling 1946 (ICRW), where they risk achieving a less favourable outcome.65 On the other hand, however, in some cases of coinciding jurisdiction, agenda setting, implementation and enforcement could be more effective under one regime as opposed to another. This can be seen in the following instance of ocean fertilization. Ocean fertilization is a specific climate engineering technique that attempts to enhance the capacity of the oceans as a carbon sink through the introduction of nutrients such as iron. Three separate regimes have been involved in regulating this subject, namely the LC/LP, the CBD, and the IOC. While the LC/LP regime (on ocean dumping) took up the subject of ocean fertilization as a matter of concern and agreed to assume competence over its governance in 2007, it was the Conference of Parties to the CBD in 2008 that first requested its member States to not undertake ocean fertilization activities until there is an adequate scientific basis to justify its deployment. Later in 2008, the governing bodies of the LC/LP regime passed a resolution to prohibit the deployment of ocean fertilization activities other than legitimate scientific research. In 2009 and 2010, the subject of ocean fertilization was raised at the IOC, whereby member States agreed that the precautionary approach favours a prohibition over ocean fertilization activities, as the present state of scientific understanding is insufficient to support its usage. The IOC thus decided to remain active in the discourse by providing scientific and technical advice to its member States, as well as to play an active role in the discussions at the LC/LP regime.66

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International Institute for Sustainable Development (2017). Accordingly, upon greater reflection, the granting of a mineral exploration license in that part of the Area might not be contrary to its status as an EBSA, provided a license for exploitation is not granted over the said area subsequently. Given the status of the area as an EBSA, it seems to be unlikely that the ISA will eventually grant an exploitation license over that area. 65 Gillespie (2002). 66 Williamson et al. (2012), Markus and Ginzky (2011), Scott (2013) and IMO (2019). 64

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Based on the above, the notion that fragmentation in international law-making is inherently bad or undesirable and needs to be surmounted is rejected. These illustrations show that in some instances, having several organizations or regimes with overlapping jurisdiction may increase the intensity of efforts to address a common problem. Rather, the problem of fragmentation in relation to marine environmental protection only becomes an issue where there are competing activities where overlapping measures are adopted that are either inconsistent or in conflict with each other. For instance, the establishment a protected area by a competent fisheries organization in areas of rich biodiversity such as seamounts, wherein measures such as bottom trawling are prohibited, will less likely achieve its objective of preserving the ecosystem for fish stocks to recover if a separate and competent organization decides to issue mining licenses in that area. Thus, what is most necessary in addressing the concern of fragmentation is enhancing cooperation and promoting coordination between the various actors and institutions involved in marine environmental protection. As demonstrated above, there is ample evidence on how to enhance coordination and cooperation between regimes. The institutionalization of information exchange between treaty bodies, the execution of memoranda of understanding, the carrying out of joint action plans, and the creation of collaborative expert working groups play an important role in coordinating efforts and promoting cooperation among regimes and actors in environmental law-making.67 Increasing the participation of various international organizations and scientific institutions by granting them observer status within a particular regime also promotes coherence and collaboration across regimes. This enables for the prior works, knowledge and experiences generated from one regime concerning a related subject matter to be transported to other regimes dealing with a similar concern without the latter having to reinvent the wheel or start from scratch. Simultaneously, this reduces the likelihood of conflicting results across regimes. While fragmentation remains a valid concern due to the high number of organizations and actors involved in various areas, the negative consequences arising from it may be averted through enhanced cooperation at all levels. Accordingly, the future of ocean governance and protection of the marine environment will largely depend on managing the negative effects of fragmentation through enhanced cooperation and improving participation and transparency in decision-making.

67

Wolfrum and Matz (2003), pp. 159–175.

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4 Shaping the Law of the Sea: Some Final Observations and Insights The institutional dynamics of environmental governance is multi-layered and intricate.68 This chapter has demonstrated the complexity surrounding marine environmental protection. In this respect, several conclusions may be observed. First, while UNCLOS is the ‘constitution of the oceans’ and remains the starting point for all aspects pertaining to ocean affairs, not much development with respect to the law of the sea and marine environmental protection (with the exception of the deep seabed mining regime and the contribution of ITLOS) takes place within its institutional framework. Second, the UN system, in particular the UNGA, performs the most crucial role in furthering ocean governance and marine environmental protection. Through its various organs, institutions and related agencies, the UN system comprehensively covers all current and emerging concerns relating to the marine environment. Hence, UNGA remains the ‘solid core and serves as the coordinator of activities and the originator of developments in the law of the sea’.69 Third, even though the UN carries the weight of developing the law of the sea, it often does so in a deferred capacity in the place of the UNCLOS regime. This is simply due to the high political interest involved in key matters pertaining to the oceans, as well as the fact that the UNGA commands wider global participation. In the end, even though decisions relating to the law of the sea are negotiated through the UNGA, the output instruments are often linked and placed under the UNCLOS regime, which has ample room for evolution depending on the needs and interests of the international community.70 Fourth, a substantial amount of support in furthering the cause of marine environmental protection comes from outside the UN family where the UN or its related agencies have little influence over its shape and direction. Nevertheless, the UN still maintains inroads in creating the necessary framework by setting up or encouraging regional initiatives. Fifth, although this was not thoroughly considered in this chapter, it would be interesting to examine the functions and mandates of subsidiary advisory bodies in the decision-making and law-making processes of the regimes outlined above. For instance, the LTC has an influential role within the ISA set-up, while the MEPC and MSC actively contribute to the outcomes arrived at in the IMO. The level of deference that a particular regime grants to its’ expert bodies will undoubtedly influence the direction and pathways it eventually adopts. Sixth, the initiatives that are taken outside UNCLOS and the UN system, although largely autonomous and not subservient to the latter, always remain guided by (and to some extent restricted to) the objectives and purposes defined by the latter. Seventh, the concern of fragmentation and the resulting multiplicity and overlap

68

Hey (2007), p. 753. de La Fayette (2006), p. 74. 70 Boyle (2006), pp. 61–62. 69

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arising as a result of the wide range of institutions is a valid one, but inefficiency and ineffectiveness can be reduced through cooperation and coordination efforts. Eight, while numerous measures may be taken at the global level by international institutions, it is the regional initiatives in shared ocean spaces (such as efforts taken by RSPs and RFMOs) that play a pivotal role in marine environmental protection and the conservation of marine resources, since they are the ones who implement, apply and enforce the measures adopted at the international level.71 Lastly, although beyond the scope of this study, national arrangements adopted solely in areas within the jurisdiction of States is potentially the most critical of all. Seeing that a substantial extent of marine environmental harm is caused by land-based sources, terrestrial and near coast environmental protection measures have a large determining effect on the health of the oceans.

5 Conclusion The role of international organizations with respect to the protection of the marine environment should not be underestimated. As observed by Churchill and Lowe, the ‘recommendations and conventions which they make or initiate, the constant and detailed surveillance which they exercise over maritime matters, and the reports which they prepare, all exert a great influence on States’ perceptions of what is happening in the seas. They mould the formulation of national maritime policies, and hence State practice and the development of international law’.72 Further, international organizations also function as an important ‘mechanism for securing international cooperation in the conservation of marine living resources and the regulation of marine pollution’.73 In the age of ocean governance where greater emphasis is being placed on integrated management, as well as the increasing interest in deep sea exploration and exploitation in areas beyond national jurisdiction, the instances where international environmental law will mix with traditional law of the sea obligations will only increase.74 It is hoped that the institutional framework within the law of the sea would stand to benefit as a result of this increased interaction especially in relation to the protection and conservation of the marine environment as well as ocean governance in general.

71

Franckx (1998), p. 322; Redgwell (2007), p. 923. Churchill and Lowe (1999), p. 24. 73 Tanaka (2015b), p. 53. 74 Rothwell (2007), p. 1023. 72

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References Barnes R (2016) The proposed LOSC implementation agreement on areas beyond national jurisdiction and its impact on international fisheries law. Int J Mar Coast Law 31:1–37 Birnie P, Boyle A, Redgwell C (2009) International law and the environment, 3rd edn. Oxford University Press, Oxford Bodansky D (2010) The art and craft of international environmental law. Harvard University Press, Cambridge Boetius A, Matthias H (2018) Mind the seafloor. Science 359:34–36 Boyle A (2005) Further development of the Law of the Sea Convention: mechanisms for change. Int Comp Law Q 54:563–584 Boyle A (2006) Further development of the 1982 Convention on the Law of the Sea: mechanisms for change. In: Freestone D, Barnes R, Ong DM (eds) The law of the sea: progress and prospects. Oxford University Press, Oxford, pp 40–62 Boyle A (2007) The environmental jurisprudence of the International Tribunal for the Law of the Sea. Int J Mar Coast Law 22(3):369–381 Boyle A, Chinkin C (2007) The law making of international law. Oxford University Press, Oxford Braethan J (1998) International co-operation on fisheries and environment. TemaNord, Copenhagen Churchill R, Lowe V (1999) The law of the sea, 3rd edn. Manchester University Press, Manchester de La Fayette L (2001) The Marine Environment Protection Committee: the conjunction of the law of the sea and international environmental law. Int J Mar Coast Law 16(2):155–238 de La Fayette L (2006) The role of the United Nations in international ocean governance. In: Freestone D, Barnes R, Ong DM (eds) The law of the sea: progress and prospects. Oxford University Press, Oxford, pp 63–74 Franckx E (1998) Regional marine environment protection regimes in the context of UNCLOS. Int J Mar Coast Law 13:307–324 Franckx E (2010) The International Seabed Authority and the Common Heritage of Mankind: the need for States to establish the outer limits of their continental shelf. Int J Mar Coast Law 25 (4):543–567 Freestone D, Salman SMA (2007) Ocean and freshwater resources. In: Bodansky D, Brunee J, Hey E (eds) The Oxford handbook of international environmental law. Oxford University Press, Oxford, pp 337–361 Gillespie A (2002) Forum shopping in international environmental law: the IWC, CITES, and the management of cetaceans. Ocean Dev Int Law 33:17–56 Gillespie A (2005) Whaling diplomacy: defining issues in international environmental law. Edward Elgar Publishing, Cheltenham Gillespie A (2011) Conservation, biodiversity and international law. Edward Elgar Publishing, Cheltenham Haas P (1989) Do regimes matter? Epistemic communities and Mediterranean pollution control. Int Organ 43:377–403 Harden-Davies H (2016) Marine science and technology transfer: can the International Oceanographic Commission advance governance of biodiversity beyond national jurisdiction. Mar Policy 74:260–267 Harrison J (2011) Making the law of the sea: a study in the development of international law. Cambridge University Press, Cambridge Harrison J (2015a) The law of the sea convention institutions. In: Rothwell D et al (eds) The Oxford handbook on the law of the sea. Oxford University Press, Oxford, pp 373–393 Harrison J (2015b) Actors and institutions for the protection of the marine environment. In: Rayfuse R (ed) Research handbook on international marine environmental law. Edward Elgar Publishing, Cheltenham, pp 57–80 Hey E (2007) International institutions. In: Bodansky D, Brunee J, Hey E (eds) The Oxford handbook of international environmental law. Oxford University Press, Oxford, pp 749–769 Hulm P (1983) The regional seas program: what fate for UNEP’s crown jewels. Ambio 12:2–13

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International Institute for Sustainable Development (2017) International Seabed Authority: 23rd session highlights. Earth Negot Bull 25:145. Available at http://enb.iisd.org/download/pdf/ enb25145e.pdf Ivanova M (2007) Designing the United Nations Environment Programme: a story of compromise and confrontation. Integr Environ Agreements: Polit Law Econ 7(4):337–361 Jaeckel A (2017) The International Seabed Authority and the precautionary principle. Brill, Leiden Jenisch U (2010) Renaissance des meeresbodens: mineralische rohstoffe und seerecht–Teil 1. NordÖR 10:373–382 Kachel M (2008) Particularly sensitive sea areas: the IMO’s role in protecting vulnerable marine areas. Springer, Heidelberg Karim MS (2015) Prevention of pollution of the marine environment from vessels: the potential and limits of the International Maritime Organization. Springer, Heidelberg Lodge M (2015a) The deep seabed. In: Rothwell D et al (eds) The Oxford handbook on the law of the sea. Oxford University Press, Oxford, pp 226–253 Lodge M (2015b) Protecting the marine environment of the deep seabed. In: Rayfuse R (ed) Research handbook on international marine environmental law. Edward Elgar Publishing, Cheltenham, pp 151–169 Makgill R, Linhares AP (2016) Deep seabed mining: key obligations in the emerging regulation of exploration and development in the Pacific. In: Warner R, Kaye S (eds) Routledge handbook of maritime regulation and enforcement. Routledge, New York, pp 231–261 Markus T, Ginzky H (2011) Regulating climate engineering: paradigmatic aspects of the regulation of ocean fertilization. Carbon Clim Law Rev 5(4):477–490 Markus T, Singh P (2016) Promoting consistency in the deep seabed: addressing regulatory dimensions in designing the International Seabed Authority’s exploitation code. Rev Eur Comp Int Environ Law 25(3):347–362 Molenaar EJ (2003) Participation, allocation and unregulated fishing: the practice of Regional Fisheries Management Organizations. Int J Mar Coast Law 18:457–480 Oral N (2015) Forty years of the UNEP Regional Seas Programme: from past to future. In: Rayfuse R (ed) Research handbook on international marine environmental law. Edward Elgar Publishing, Cheltenham, pp 339–362 Palma-Robles MA (2016) Fisheries enforcement and the concept of compliance and monitoring, control and surveillance. In: Warner R, Kaye S (eds) Routledge handbook of maritime regulation and enforcement. Routledge, New York, pp 139–160 Pfeiffer S (2006) The International Hydrographic Organization (IHO): how to successfully modernize an international organisation. In: Ehlers P, Lagoni R (eds) International maritime organisations and their contribution towards a sustainable marine development. Lit Verlag, Hamburg, pp 197–217 Rayfuse R (2015) Regional fisheries management organizations. In: Rothwell D et al (eds) The Oxford handbook on the law of the sea. Oxford University Press, Oxford, pp 439–462 Redgwell C (2006) From permission to prohibition: the 1982 Convention on the Law of the Sea and protection of the marine environment. In: Freestone D, Barnes R, Ong DM (eds) The law of the sea: progress and prospects. Oxford University Press, Oxford, pp 180–191 Redgwell C (2007) National implementation. In: Bodansky D, Brunee J, Hey E (eds) The Oxford handbook of international environmental law. Oxford University Press, Oxford, pp 922–946 Rothwell D (2007) The contribution of ITLOS to ocean governance through marine environmental dispute resolution. In: Ndiaye TM, Wolfrum R (eds) Law of the sea, environmental law and settlement of disputes: liber amicorum Judge Thomas A. Mensah. Martinus Nijhoff Publishers, Leiden, pp 1007–1024 Rothwell D, Stephens T (2016) The international law of the sea, 2nd edn. Hart Publishing, Oxford Scott K (2013) Regulating ocean fertilization under international law. Carbon Clim Law Rev 7 (2):108–116 Sielen A (2009) The new international rules on ocean dumping: promise and performance. Georgetown Int Environ Law Rev 21(2):295–336 Stephens T (2009) International courts and environmental protection. Cambridge University Press, Cambridge

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Tanaka Y (2015a) The international law of the sea, 2nd edn. Cambridge University Press, Cambridge Tanaka Y (2015b) Principles of international marine environmental law. In: Rayfuse R (ed) Research handbook on international marine environmental law. Edward Elgar Publishing, Cheltenham, pp 31–56 Unterweger I (2015) International law on tuna fisheries management: is the Western and Central Pacific Fisheries Commission ready for the challenge? Nomos, Baden-Baden Van Dyke JM, Broder SP (2015) International agreements and customary international principles providing guidance for national and regional ocean policies. In: Cicin-Sain B, VanderZwaag DL, Balgos MC (eds) Routledge handbook of national and regional ocean policies. Routledge, Oxon, pp 49–84 VanderZwaag DL (2015) The international control of ocean dumping: navigating from permissive to precautionary shores. In: Rayfuse R (ed) Research handbook on international marine environmental law. Edward Elgar Publishing, Cheltenham, pp 132–140 Wedding LM et al (2013) From principles to practice: a spatial approach to systematic conservation planning in the deep sea. Proc R Soc B 280:1–10 Willetts P (2011) Non-governmental organizations in world politics: the construction of global governance. Routledge, Oxon Williamson P et al (2012) Ocean fertilization for geoengineering: a review of effectiveness, environmental impacts and emerging governance. Process Saf Environ Prot 90(6):475–488 Wolfrum R, Matz N (2003) Conflicts in international environmental law. Springer, Heidelberg

Documents Commission on the Limits of the Continental Shelf (2018) Members of the Commission: http:// www.un.org/depts/los/clcs_new/commission_members.htm#Subsidiary%20bodies IMO (2014) Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization: Study by the Secretariat of the IMO (LEG/MISC.8, 30 January 2014). Available at http://www.imo.org/en/ourwork/legal/documents/leg%20misc %208.pdf IMO (2019) Ocean fertilization under LC/LP. Available at http://www.imo.org/en/OurWork/Envi ronment/LCLP/EmergingIssues/geoengineering/OceanFertilizationDocumentRepository/ OceanFertilization/Pages/default.aspx UNEP (2018) Working with regional seas. Available at https://www.unenvironment.org/exploretopics/oceans-seas/what-we-do/working-regional-seas UNGA (1999) Resolution A/RES/54/33 adopted by the General Assembly on 24 November 1999: results of the review by the Commission on Sustainable Development of the sectoral theme of “Oceans and seas”: international coordination and cooperation. Available at https://documentsdds-ny.un.org/doc/UNDOC/GEN/N00/237/93/PDF/N0023793.pdf?OpenElement UNGA (2015) Resolution A/RES/70/1 adopted by the General Assembly on 25 September 2015: transforming our world: the 2030 Agenda for Sustainable Development. Available at http:// www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/ A_RES_70_1_E.pdf UNGA (2017) Resolution A/RES/69/292 adopted by the General Assembly on 24 December 2017: International legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. Available at https://undocs.org/en/a/res/72/249 World Heritage Convention and UNESCO (2018) Marine world heritage: 2018 annual report. Available at http://whc.unesco.org/en/marine-programme

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Pradeep A. Singh Doctoral researcher at the Faculty of Law, University of Bremen and Research Associate (Ocean Governance) at the Institute for Advanced Sustainability Studies (IASS), Potsdam. Areas of interest include public international law, the law of the sea, ocean governance and the protection of the marine environment, as well as the integration of science and other forms of expertise into marine environmental decision-making. Holds a LL.M. from Harvard Law School and a LL.M. in Global Environment and Climate Change Law from the University of Edinburgh.

Chapter 4

The Arctic Ocean: Are We Ready to Govern a New Ocean? Timo Koivurova, Stefan Kirchner, and Pirjo Kleemola-Juntunen

Abstract Climate change makes the Arctic ocean accessible for a range of human activities, such as shipping or hydrocarbon extraction, which can severely damage the fragile natural environment. The emergence of a ‘new ocean’ raises the question whether existing international legal norms are sufficient to adequately govern the Arctic ocean in light of this changing situation. Looking at the work of existing institutions, initiatives by Arctic States and applicable legal norms, the authors investigate the suitability of the current international legal framework for the governance of the Arctic ocean in general and the protection of the marine environment in particular. In the absence of a regional seas agreement for the Arctic ocean, particular attention will be given to the work of the Arctic Council and to potential future developments of the international legal framework governing in particular the high seas part of the central Arctic ocean.

1 Introduction For a long time, the Arctic has been perceived by outsiders as some sort of frozen desert. For the first time in human history, climate change has made large parts of the Arctic Ocean accessible for large-scale maritime use. This change has unearthed a range of new challenges that require a regulatory response on an international level. It is the purpose of this text to examine not only how such regulatory responses are generated but which existing institutions and legal frameworks might prove useful in the future governance of the Arctic Ocean. Both the Arctic and Antarctica are governed by multilevel international legal frameworks. Unlike the Arctic, which consists of both areas beyond national jurisdiction and also large parts that fall within the geographical scope of the national sovereignty and sovereign rights of the Arctic States, Antarctica is an uninhabited

T. Koivurova (*) · S. Kirchner · P. Kleemola-Juntunen University of Lapland, Arctic Centre, Rovaniemi, Finland e-mail: timo.koivurova@ulapland.fi; stefan.kirchner@ulapland.fi; pirjo.kleemola-juntunen@ulapland.fi © Springer Nature Switzerland AG 2020 M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea, https://doi.org/10.1007/978-3-030-42671-2_4

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continent and its legal status is based on legally binding documents such as the 1959 Antarctic Treaty,1 which make up the Antarctic Treaty System (ATS). The treaty system creates a sui generis regional regime that includes regional regimes such as merchant shipping, (marine) environmental protection, conservation and management of marine living resources and marine scientific research.2 The Southern Ocean has no generally-recognized coastal or port States. Although the Arctic has been home to indigenous peoples for thousands of years, the lands of the far north were seen as a ‘frontier’ that was to be ‘discovered’ and ‘conquered’. From the perspective of international law, the central Arctic Ocean was long ignored, as it was not perceived as a geographical space that could be utilized (for example for fishing or navigation). This perception changed as shipping in the Arctic evolved from vision to reality. The potentially harmful effects of shipping operations on coastal communities have long been a concern in the Arctic, but it was the journey of the modified oil-tanker SS Manhattan through the Northwest Passage in 1969 that led to the creation of environmental standards for shipping within 100 nm of the Canadian coast.3 Also raising issues concerning the control of remote regions in Arctic States, the Manhattan incident prompted Canada to enact its Arctic Waters Pollution Prevention Act4 (AWPPA) in 1970 to address the fragile Arctic environment and to prevent any potential damage by vessel-source pollution. AWPPA allowed Canada to prevent pollution within a 100-mile zone adjacent to the Canadian coast above the 60th parallel.5 At the time, the scope of AWPPA went beyond the limits set by international law,6 and it extended Canada’s jurisdiction to the high seas where ships had previously enjoyed freedom of navigation. Although incompatible with the law of the sea at the time,7 this measure eventually paved the way to the creation of Article 234 of the UN Convention on the Law of the Sea8 (UNCLOS) and influenced the development of customary international law.9 In this chapter, it will be shown how the governance of the Arctic Ocean has evolved. Particular attention will be given to the importance of climate change as a key driver of amendments to Arctic law and governance as well as to the institutions

1 402 United Nations Treaty Series 71, opened for signature on 1 December 1959 in Washington, D.C., entered into force on 23 June 1961. 2 Molenaar (2012), p. 558. 3 Byers (2013), pp. 134 et seq; Caminos and Cogliati-Bantz (2014), p. 140; US Department of State (1992), p. 73. 4 Canada, Act to Prevent Pollution of areas of the Arctic Waters Adjacent to the Mainland and Islands of the Canadian Arctic, June 1970, International Legal Materials 9 (1970), pp. 543–552. 5 §3 (1) AWPPA; Huebert (2001), p. 254. In 2009, Canada extended the scope of AWPPA from 100 to 200 nautical miles, Proelss et al. (2017), p. 1570. 6 Bartenstein (2011), p. 26; Franckx (1993), p. 87. 7 Id., p. 185. 8 1833 United Nations Treaty Series 3, opened for signature on 10 December 1982 in Montego Bay, Jamaica, entered into force on 16 November 1994. 9 Id., p. 186.

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involved in regulating an ocean that, for the first time in human memory, will become usable not only from a local but also from a global perspective.

2 Climate Change and Changing Law for the Arctic Ocean 2.1

Climate Change

Anthropogenic climate change has had a dramatic impact on the polar regions in particular. Greenhouse gases such as CO2 cause an increase in temperatures. This effect is felt today10 and Arctic temperatures are estimated to warm at about twice the rate as the rest of the planet.11 This is leading to the melting of the polar ice caps as well as glaciers (in Greenland, for instance) but also permafrost. Melting permafrost releases methane, which in turn accelerates the process of global warming,12 while the loss of polar sea-ice (which is as significant as ever before in recorded history, with the previous 12 years having the smallest extent of Arctic sea ice13) and glaciers results in a reduced albedo, which then leads to greater heat retention and also feeds into the looped process of climate change. Climate change has a range of effects on the natural world, such as the northward movement of species at sea and on land14 and the decreased accessibility of some land areas due to melting permafrost, but some Arctic areas experience easier accessibility by sea. It is the latter aspect, the accessibility of parts of the Arctic Ocean, that have never before been accessible for human exploitation on an industrial scale (i.e., beyond indigenous hunting), which has triggered the increasing international regulation of Arctic spaces.

2.2

The Law as It Is Today: Article 234 UNCLOS

It was the old perception of the Arctic as a frozen desert which played a role during the negotiations not only for UNCLOS but also for the multilateral treaties related to the law of the sea which were adopted in the 1950s. This perception was based on the absence of knowledge. Satellite data, available only since the late 1970s,15 and local knowledge held by indigenous communities were often ignored. This led to a situation in which the key international treaty concerning the law of the sea addresses the Arctic Ocean only in passing: under Article 234 UNCLOS:

10

Overland et al. (2018). NOAA (2019). 12 Gray (2018). 13 NOAA (2019). 14 Welch (2017). 15 See also Lei et al. (2015). 11

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T. Koivurova et al. Coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence.16

Article 234 UNCLOS refers only to EEZs. The Law of the Sea Convention, even though it also regulates the Arctic Ocean’s high seas portion, does not contain any specific norms regarding this part of the Arctic Ocean. The international law of the sea, however, provides for a number of mechanisms that are designed to provide protection for specific parts of the sea, for example the designation of particularly sensitive sea areas17 (PSSAs), regional seas programs,18 or the Polar Code.19 The latter, which entered into force on 1 January 2017, is the result of long-term efforts on the part of the International Maritime Organization (IMO), and its creation has been supported by the Arctic Council.20 The Polar Code is meant to contribute to the protection of maritime safety and the marine environment in polar waters, as both the Arctic Ocean and the Southern Ocean are particularly threatened by pollution21 and, despite climate change, navigation in polar waters remains fraught with danger.22 The practical need for special rules aimed at protecting human life and the marine environment in polar waters became more pressing as it became evident that climate change would allow for increasing use of both Arctic and Antarctic waters and that polar regions, as seen in the aftermath of the Exxon Valdez disaster, raise particular challenges for maritime safety. The increasing size of the areas of relatively of open water in the Arctic Ocean is a trend that is set to continue. It is estimated that about half of the sea ice cover has already been lost since satellite surveillance of the Arctic become possible in the 1970s. The loss of sea ice affects not only indigenous communities and wildlife but also leads to a loss of albedo and an acceleration of warming. At the same time, the Arctic Ocean is opening up for ship operations. The Northwest Passage (NWP) and the Northern Sea Route (NSR) provide shorter, and therefore cheaper, alternatives to traditional shipping routes between East Asia and the Eastern seaboard of North America and Europe. In particular, the NSR is also emerging as a route for the

16

Art. 234 UNCLOS. IMO Resolution A.982(24), Revised guidelines for the identification and designation of Particularly Sensitive Sea Areas (PSSAs). 18 Regional Seas Programmes, https://www.unenvironment.org/explore-topics/oceans-seas/whatwe-do/working-regional-seas/regional-seas-programmes. 19 Polar Code (2016). MEPC 68/21/Add.1, Annex 10, http://www.imo.org/en/MediaCentre/ HotTopics/polar/Documents/POLAR%20CODE%20TEXT%20AS%20ADOPTED.pdf. 20 Arctic Council (2015). 21 Churchill and Lowe (1999), p. 335. 22 For a list of dangers see Polar Code, Introduction, Part 3. 17

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transport of raw materials such as hydrocarbons that have been extracted in the Arctic.23 By the middle of the twenty-first century, old sea ice or multi-year sea ice may disappear24 and the Arctic Ocean is likely to be ice-free for a short period during the summer.25 Consequently, although the Arctic Ocean is going to be ice-covered fully or partially in the other seasons, the retreating Arctic sea ice may diminish the sea area that is ice-covered most of the year. At the same time, Arctic shipping is increasing.26 The increasing accessibility of the Arctic Ocean for transport by ship not only increases the risk of oil spills,27 planned discharges28 but also the volume of other dangerous goods that are transported by ship through this highly sensitive region.29 Melting sea ice, however, does not mean a complete absence of sea ice. Large parts of the Arctic Ocean that see losses of permanent sea ice cover will remain bergy for large parts of the year. Bergy waters hold their own challenges for ships and crews, and they have been recognized as a particular problem for maritime safety.30 A larger number of ship operations in the area require effective governance. While there is an interest on the part of Arctic States to maximize the economic opportunities made possible by a warming Arctic, such endeavors also raise significant questions of maritime safety and governance. People who live along the coasts of the Arctic Ocean are likely to bear the risk of environmental disasters such as oil spills or of the health dangers from air pollution by ships whilst hardly profiting from the new vessel activities close to shore. The increasing risk of environmental damage leads to a greater need for regulation and effective implementation of environmental norms. As is often the case in the international law of the sea, the law reacts to new developments, new uses of the seas and new challenges. In the case of the Arctic Ocean, the increasing availability of the region (including the eventual accessibility of the central part of the Arctic Ocean for trans-polar shipping31) due to the reduction of sea ice cover has led to an increase in international interest and international regulation. This interest is not confined to Arctic States. Non-Arctic actors are also increasingly expressing an interest in Arctic governance and the regulation of Arctic spaces. UNCLOS and the regulatory framework that has been created under the auspices of the International Maritime Organization are global in nature and open to all States, also giving non-Arctic States a role in shaping the future of the governance

23

See also Zojer (2018), p. 213. Perovich et al. (2016); Serreze et al. (2007); Pollack (2010), p. xi. 25 Koivurova (2014), p. 102. 26 Deggim (2018), p. 16; Brigham (2017), pp. 6–9. 27 Kirchner and Kleemola-Juntunen (2018), p. 29. On the particular risks of oil spills in the Arctic see Wadhams (2017), pp. 99 et seq. 28 Bellefontaine and Johansson (2018), pp. 257 et seq. 29 Kirchner (2019), p. 86. 30 This is an issue that is not reflected in the Polar Code, which appears to treat bergy waters as open waters, see Polar Code, Part I-A, Chapter 12, para. 12.3.2. 31 Smith and Stephenson (2013); Humpert and Raspotnik (2012); Rothwell (2017), pp. 6 et seq. 24

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of the Arctic Ocean. This phenomenon could be seen in the proceedings leading to the adoption of the Polar Code by the IMO.

2.3

Increasing Need for Regulation Beyond the Law of the Sea Convention

While the initial legal developments took place in Canada regarding the NWP, the rapidly growing hydrocarbon industry in Northern Russia has made the Northern Sea Route highly relevant from a practical perspective. There, a substantial portion of the maritime traffic consists of regional traffic, primarily the transport of oil and gas from Russia to China. This trend is likely to continue as climate change makes northern areas more accessible for exploration and exploitation. The transport of dangerous cargo such as oil raises particular environmental and governance concerns. The same is true for other uses of Arctic marine spaces, for example cruise shipping, bioprospecting or fishing. The increasing need for regulation has been evident for some time. Article 234 UNCLOS is highly relevant, as large parts of the NSR are in Russia’s Exclusive Economic Zone. But while UNCLOS serves important regulatory purposes, Article 234 UNCLOS in itself covers only those parts of the Arctic Ocean which are “icecovered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance”.32 The extent of the coastal State’s EEZ limits the geographical applicability of Article 234 UNCLOS but many activities that have the potential to harm the Arctic marine environment occur in the high seas or on the continental shelves. The central part of the Arctic Ocean is defined as high seas/continental shelves both in UNCLOS and in customary international law. So far, all coastal States of the Arctic Ocean have followed the rules and procedures for establishing sovereign rights over continental shelves as set out in the 1982 United Nations Convention on the Law of the Sea, even though the US is still to accede to the UNCLOS: Russia, Norway and Denmark have made submissions to the Commission on the Limits of the Continental Shelf (CLCS); Norway’s submission was the subject of CLCS recommendations in 200933 while Canada’s 2013 submission (which does not include the Arctic Ocean34), Denmark’s 2014 submission and Russia’s 2015 resubmission await review by the CLCS35 and the US continues to

32

Art. 234, UNCLOS. CLCS (2009). 34 CLCS (2014). Canada is currently preparing a submission to the CLCS regarding the Arctic Ocean, see also Koivurova (2011). 35 DOALOS (2018). 33

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gather data in preparation for future submissions to the CLCS, although the US will probably need to accede to the UNCLOS before it can make a submission.36 Neither UNCLOS nor customary international law provides the protections that are needed to deal with the likely effects of the dramatically increased volume of human interaction with the Arctic Ocean, be it through navigation or the extraction of natural resources. In particular, the protection of the Arctic marine environment is emerging as a major concern. The long-term effects of the 1989 Exxon Valdez oil spill, on the environment as well as on local communities and their economic development,37 remain a powerful reminder of the dangers associated with hydrocarbon-related vessel operations in the Arctic. The law of the sea is not limited to UNCLOS, indeed, UNCLOS provides a framework which is being filled by range of other international norms. In addition to multilateral treaties such as the International Convention for the Safety of Life at Sea (SOLAS) and the International Convention for the Prevention of Pollution from Ships (MARPOL), a large number of regulations and norms have been created by and under the auspices of the IMO. Infused by technical knowledge, the norms created through IMO processes have a significant impact on the practice of ship operations. They are, however, limited to ship operations and therefore can serve only to reduce risks stemming from vessels. The most relevant of these developments, from an Arctic perspective, is the adoption of the legally-binding Polar Code, which was created based on the frameworks provided by MARPOL and SOLAS. The Polar Code, which entered into force on 1 January 2017, deals only with the dangers posed by and to ships operating in Arctic and Antarctic waters. The protection of the marine environment and of maritime safety has been dealt with by international treaties, in particular MARPOL and SOLAS, but the Polar Code is meant to fill gaps that have been left open by existing regulations in relation to the particular risks faced by ships in Arctic and Antarctic waters. This was necessary especially in light of the lack of experience of seafarers with polar conditions38 and due to the very limited infrastructure for endeavors such as Search and Rescue (SAR). The Polar Code aims at increasing ship safety and at protecting the marine environment, but like many international instruments that have been created under the auspices of the IMO, the Polar Code does not apply to fishing vessels.39 More importantly, it does not regulate oil or gas platforms. As oil dissolves far more slowly in colder climates than in warmer climates, as was also learned after the Exxon Valdez oil spill, any large-scale oil spill in the Arctic, let alone one on the scale of the Deepwater Horizon spill,40 would have the potential to devastate large parts of

36

Oude Elferink (2001), p. 156. Alaska Fisheries Science Center (2001), Renner (2006), Palinkas et al. (1993) and Kirchner (2016). 38 Cf. Kirchner (2018). 39 Polar Code (2016). 40 See Kirchner and Alkanli (2011). 37

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the Arctic.41 As the Arctic warms, the risk of environmental damage as a result of increased human activities grows accordingly. Preventing harm and reducing disaster risks in the Arctic Ocean requires regulations based on Arctic know-how and that take into account the needs of the people who live in the Arctic.

2.4

Who Regulates Activities Within the Arctic?

For the time being, there is no comprehensive legal regime that fulfills this need, but the efforts undertaken by the Arctic Council show how this goal can be achieved. The relevance of local knowledge and awareness also means that not only the content of norms is relevant for their effectiveness but also the way in which norms are produced. The regulations introduced so far—multilateral treaties and regulations created within the frameworks provided by international treaties of the IMO—have been created in global fora (in the widest sense of the term). Even though Arctic States played a role in their creation and although these norms are relevant for the Arctic Ocean, they are not ‘made in the Arctic’. The question remains open as to whether Arctic Ocean is an enclosed or semienclosed sea within the meaning of Article 122 of the Law of the Sea Convention.42 Although the Arctic Ocean fulfills the first requirement in Article 122, the second requirement that it be “connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States”43 remains ambiguous. Approximately 60% of the surface of the Arctic Ocean is national EEZs and territorial seas. Whether this is sufficient in order for the Arctic Ocean to qualify as “primarily” consisting of EEZs is unclear.44 The interpretation of Article 122 in the South China Sea Arbitration Award45 indicates that anything more than 50% may be sufficient to trigger the applicability of Article 122 UNCLOS,46 although this does not appear to be an uncontested interpretation of Article 122, let alone a norm of customary international law. It must be noted, in any case, that Part IX (Arts 122, 123) UNCLOS does not give additional rights to coastal States beyond those they are entitled to under other

41

See Kirk and Miller (2018). Proelss and Müller (2008), p. 684. 43 Art. 122, UNCLOS. 44 Pharand (2007), p. 53; Weidemann (2014), p. 84. 45 Permanent Court of Arbitration, The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China), Case 2013-19, Award of 12 July 2016, https://pcacases.com/ web/sendAttach/2086. 46 Whomersley (2016), p. 241; referring to the maps on pp. 7 and 9 in Permanent Court of Arbitration, The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China), Case 2013-19, Award on Jurisdiction and Admissibility of 29 October 2015, https:// pcacases.com/web/sendAttach/1506, which highlight the distance of 200 nm from the coastal States’ coastlines. 42

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provisions of the Convention. The primary concern in negotiations leading to the adoption of UNCLOS was that the extension of coastal State jurisdiction would restrict the freedom of navigation and that also the 200 nm EEZ was inappropriate in enclosed and semi-enclosed seas. With regard to coastal State jurisdiction, no distinction is made to enclosed and semi-enclosed seas, and Article 123 UNCLOS only encourages States to cooperate “in the exercise of their rights and in the performance of their duties under this Convention”.47 So far, there is no comprehensive legal regime covering the central Arctic Ocean as such, apart from UNCLOS. This multilateral treaty forms the core of the international regulations of the Arctic Ocean. The special nature of the central Arctic Ocean, which has never been used for navigational purposes due to the presence of sea-ice which until a few decades ago was considered to be permanent and which is now becoming accessible for surface navigation for the first time, has led to piecemeal regulatory efforts that have, over time, evolved into a patchwork of international rules. The rules cover issues including the early efforts to protect wildlife, for example through the 1911 Convention Respecting Measures for the Preservation and Protection of Fur Seals in the North Pacific Ocean,48 the 1957 Interim Convention on Conservation of North Pacific Fur Seals and the International Agreement on the Conservation of Polar Bears of 197349 and the 1988 Inuvialuit-Inupiat Polar Bear Management Agreement.50 While the former two agreements covered the northernmost parts of the Pacific rather than the central Arctic Ocean, which at the time was considered to be permanently ice-covered, the Polar Bear Agreements went further in terms of geographical scope. The 1988 agreement included quotas for the respective parties, highlighting that these treaties were meant to protect animals (as is the case with the protection of whales) not as such or as a contribution to biodiversity conservation, but as a resource meant to be used by humans. The same approach of preservation with a view to potential exploitation applies to the limitation of fisheries in the central Arctic Ocean.51 In addition to the Law of the Sea Convention, the 1995 UN Fish Stocks Agreement52 and the Code of Conduct for

47

Pharand (2007), p. 53; Weidemann (2014), pp. 84–85. Convention Respecting Measures for the Preservation and Protection of Fur Seals and Sea Otters in the North Pacific Ocean, signed July 7, 1911, the Treaty text is available at the American Journal of International Law, Supplement Official documents 1911, Vol. 5 (4), p. 267. 49 Interim Convention between the United States of America, Canada, Japan and the Union of Soviet Socialist Republics on conservation of North Pacific fur seals, signed 9 February 1957, entered into force 14 October 1957, 314 UNTS 106; Agreement on the Conservation of Polar Bears signed 15 November 1973, entered into force 26 May 1976, 2898 UNTS 243. 50 The Inuvialuit-Inupiat Polar Bear Management Agreement is not an international treaty but an agreement between indigenous peoples in two countries (United States and Canada). 51 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean, 3 October 2018, text available at https://eur-lex.europa.eu/legal-content/GA/TXT/? uri¼CELEX:52018PC0454. 52 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling 48

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Responsible Fisheries,53 which stems from the same year, can be utilized in the central Arctic Ocean.

3 The Arctic Council’s Marine Stewardship The Arctic Ocean is bordered by five coastal States, which are collectively known as the Arctic Five (A5), but the bulk of the work in terms of creating standards to govern Arctic spaces is undertaken at the Arctic Council (AC), which continues to play the central role in institutional terms when it comes to developing Arctic law and governance. The Arctic Council is an inter-governmental forum that unites the eight Arctic States (United States, Canada, Denmark on behalf of Greenland, Iceland, Norway, Sweden, Finland and Russia) as members54 and Arctic indigenous peoples’ organizations as Permanent Participants.55 In addition, a number of non-Arctic States, such as China, and other entities (a total of 39, of which 13 are States) have sought (and gained) observer status with the Arctic Council,56 which reflects the growing global interest in Arctic affairs.57 Originally conceived as a forum with a focus on soft law and explicitly excluding security matters from its mandate,58 the AC has developed a high degree of competence in a number of fields relevant also for the Arctic Ocean. While not explicitly aimed at maritime matters, the focus of the AC’s work has long included the Arctic Ocean and its natural environment.59 This interest has been reflected in a number of soft law instruments. In recent years, the Arctic Council has been able to catalyze its multidimensional efforts, including those with relevance for the Arctic Ocean, into legally binding treaties. In addition, the member States of the Arctic Council continuously play an active role in shaping international law in other fora. This was notably the case in the context of the International Maritime Organization, in which Arctic States effectively worked towards the adoption of the Polar Code. Some years ago, the A5 briefly appeared to challenge the AC for leadership in international Arctic governance,60 but the established Arctic Council format was given precedence by the A5. The cooperation between the A5 continued with more limited efforts related to

Fish Stocks and Highly Migratory Fish Stocks, signed 4 August 1995, entered into force 11 December 2001, 2167 UNTS 3. 53 Code of Conduct for Responsible Fisheries (1995). 54 Arctic Council (1996). 55 Ibid. 56 Molenaar (2012), p. 579. 57 Id., p. 580. 58 Koivurova (2010), p. 148. 59 Id., pp. 149–150. 60 Cf. Koivurova (2010).

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fisheries in the central Arctic Ocean, which culminated in the adoption of the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean61 (CAOFA). Although the five coastal States will have naturally occurring shared interests that can be met through international regulation, the wide material scope of the international treaties created under the auspices of the AC shows that these interests can also be met through the AC, and the A5’s efforts have been limited to fishing. Consequently, the AC currently is the undisputed prime forum for discussing international Arctic governance. The push by non-Arctic nations for observer status in the Arctic Council highlights this growing global interest in Arctic governance. Understanding non-Arctic views on Arctic law and governance matters because norms that apply to the Arctic are also created outside the Arctic, and non-Arctic actors play an important role in shaping the rules that apply to the Arctic. The Arctic Council is an inter-governmental forum based on a declaration rather than an organization based on an international treaty, and initially it relied exclusively on soft law. Today it has not only a permanent secretariat but has also begun to be used by Arctic States as a space for developing legally binding agreements, despite its nature as a soft-law intergovernmental forum. The AC is not only a political forum but in its work it relies on working groups, task forces and expert groups. The systematic reliance on scientific expertise by the AC and the involvement of Arctic indigenous communities ensure that the AC can actually provide ‘Arctic Law made in the Arctic’. In the following, the AC’s strategy will be outlined and its specific approaches to the governance of the Arctic Ocean will be described in more detail. Covering issues such as cooperation in search and rescue62 (SAR) matters and in scientific research63 as well as responses to oil spills,64 these international treaties are not law made by the AC but rather have been drafted under the auspices of the Arctic Council. In addition, soft law continues to play an important role in the work of the AC. For example, the Ministerial Meeting of the Arctic Council in Tromsø approved the Arctic Marine Shipping Assessment (AMSA) report in 2009.65 This assessment of Arctic marine activities focused on marine safety and environmental protection. The report recommends actions to be taken by the Arctic Council and the Arctic States. The report suggests the Arctic States support the work of IMO, the competent body for regulating shipping in the Arctic, to strengthen the international standards

61

Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOFA) (2018). 62 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (Arctic SAR), 12 May 2011, entered into force 19 January 2013, 50 ILM 1113 (2011). 63 Agreement on Enhancing International Arctic Scientific Cooperation, 11 May 2017, entered into force 23 May 2018, https://oaarchive.arctic-council.org/handle/11374/1916. 64 Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic, 15 May 2013, entered into force 25 March 2016, https://oaarchive.arctic-council.org/handle/11374/ 529. 65 Arctic Marine Shipping Assessment (AMSA) 2009 Report, https://oaarchive.arctic-council.org/ handle/11374/54.

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for vessels operating in Arctic waters.66 Today, AMSA is seen as a landmark event in Arctic legal developments.67 The Arctic Marine Strategic Plan (AMSP) led to a number of initiatives through which the AC has influenced the ways in which the Arctic Ocean can or should be used. This includes, for example, guidelines for the offshore hydrocarbon sector. The strategic approach seen in the AMSP is supplemented by other efforts to strengthen marine governance in the Arctic, with one method being through working groups and expert groups. While this affects mainly economic activities in parts of the Arctic Ocean that are under various coastal State jurisdictions, such as exclusive economic zones or continental shelves, the work of the AC also concerns parts of the Arctic Ocean beyond national jurisdictions. The AC has done this by influencing the drafting of the Polar Code and international responses to marine biodiversity challenges and also existing international legal regimes. The latter examples include the legal norms on mercury as well as on persistent organic pollutants and current work on marine litter. All of these measures, both within the AC framework as well as in other contexts, can be seen as building blocks of an emerging system of Arctic marine governance. The AC’s overall idea for the regulation of the Arctic Ocean can be deduced from the AMSP, and the norms created by the AC—both soft law and treaties drafted under the auspices of the Arctic Council—are the first tiles in the mosaic being constructed by the States of the Arctic. Such a regional approach is necessary not only because of the inclusion of regional Arctic expertise in the creation of regulations and policies but also because there is no global approach to protecting the Arctic Ocean. There is no Arctic institution that parallels the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), which is based on an international treaty and the 1980 Convention on the Conservation of Antarctic Marine Living Resources,68 and which has parties from all over the world. The original reason for the absence of such an institution is that the Arctic Ocean is surrounded by nation States that can take measures to protect the marine environment of the Arctic Ocean, for example under Article 234 UNCLOS. The A5 did “see no need to develop a comprehensive legal regime to govern the Arctic Ocean”69 beyond the framework provided by UNCLOS and the possibilities given to the Arctic States by existing international law. At this time, there is no political support for the creation of an Arctic treaty to parallel the legal regime already in place for Antarctica. This also means that there is no separate institution for the protection of the part of the Arctic Ocean that is beyond national jurisdictions. As a result, the central Arctic Ocean is regulated by the law of the sea

66

AMSA (2009), p. 6. Scott and VanderZwaag (2017), p. 736. 68 CAMLR Convention (1980). 69 Ilulissat Declaration (2008), https://cil.nus.edu.sg/wp-content/uploads/2017/07/2008-IlulissatDeclaration.pdf. 67

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just like the high seas of the Atlantic Ocean. Unlike in the case of other oceans, there is not yet a regional seas agreement in the formal sense of the term or a regional fisheries management organization for the central Arctic Ocean. This does not mean that there is no room for a specific regional approach for the Arctic Ocean. The recent adoption and signing of the CAOFA, which at the time of writing had not yet not entered into force, marked a regional effort to regulate the Arctic Ocean. The CAOFA was created by the A5+5, the five coastal States of the Arctic Ocean (Norway, Canada, Denmark acting for Greenland, the United States) and five interested parties (the European Union, Iceland, Japan, South Korea and China) although it is understood that the CAOFA is not meant to influence existing agreements nor to alter the respective positions of States with regard to the issues dealt with by the CAOFA.70 It is particularly noteworthy that the CAOFA leaves room for the regulation of fisheries through other means, both on the national and the international levels, as it is only concerned with unregulated fisheries.71 It might even be argued that the CAOFA already amounts to a regional fisheries management arrangement (RFMA) as understood in Article 1 (1) of the 1995 UN Fish Stocks Agreement.72 At the very least the CAOFA should be considered the most realistic starting point for negotiations towards the creation of a central Arctic Ocean RFMA.73 For the time being, though, commercial unregulated fishing in the central Arctic Ocean remains improbable. The CAOFA is a noteworthy example for the practical implementation of the precautionary approach74 insofar as it is a welcome change from the more common reactive approach found in the international law of the sea,75 especially when it comes to protecting the marine environment, and it has long been common for the international community to react to disasters rather than to adopt a preventive and precautionary approach such as the one found in the CAOFA. There are already a number of measures aimed at protecting the Arctic Ocean76 even though there seems to be a lack of political interest in the creation of regional maritime protected zones. This is also highlighted by the increasing focus on hydrocarbon extraction despite the environmental risk in several coastal States of the Arctic Ocean. Seeing climate change as an opportunity for exploiting natural resources in newly-accessible parts of the Arctic can make it more likely that the A5 will not play the same trailblazing role for environmental protection in their EEZs and over their continental shelves than they did with regard to the prevention of unregulated fishing.

70

Schatz et al. (2018). Ibid. 72 Ibid. 73 Ibid. 74 De Lucia et al. (2018), p. 265. 75 Cf. Louis-Jacques (2012). 76 Roach (2018). 71

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It remains to be seen how Arctic States, in particular the A5, will move forward once the ongoing negotiations (2018–2019) for an international, legally-binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction77 will have concluded and a draft will have been agreed upon. During the first session in September 2018, it appeared that the United States and Norway wanted to move forward somewhat more cautiously than some other Arctic States,78 but it appears premature to try to infer any material policy conclusions from statements regarding the drafting procedure at such an early stage of the negotiations. Given the fragility of the Arctic marine environment, the central Arctic Ocean appears to be a prime candidate for designation as a particularly sensitive sea area (PSSA).79 However, the existing rules80 for the declaration of PSSAs81 require a present threat to the marine environment.82 While the central Arctic Ocean fulfills other, in particular ecological, criteria for the designation as a PSSA, the current lack of marine traffic in the central Arctic Ocean might prevent the designation of the CAO as a PSSA. It has to be noted, though, that the IMO is not prevented from updating its own rules concerning the designation of PSSAs to take a more precautionary approach rather than to wait for this already predictable threat to the Arctic marine environment to actually materialize. Even though the current procedural rules seem to stand in the way of designating the CAO as a PSSA at this moment, the necessary regulatory changes could be achieved within a relatively short time period and, in any case, prior to the melting of multiyear sea ice in the CAO. The current legal situation leaves the Arctic Council with the possibility to play a key role in shaping the governance of the marine ecosystem of the Arctic Ocean for the foreseeable future. These efforts can include areas within and beyond national jurisdiction and can be undertaken with the Arctic Council’s own means, such as the drafting of treaties, or within the context of other fora. Differently from other fora working on marine environmental issues, the Arctic Council can take a holistic approach. Just as the AC’s SAR Agreement applies to emergencies on land and at sea, the AC’s efforts do not have to be restricted to the sea. One particular problem that the Arctic Council is looking at is the issue of landbased marine pollution.83 A regional program of action, which combines the AC’s

77

See Koivurova and Caddell (2018), pp. 134–138; De Lucia et al. (2018), p. 264; cf. also Thiele (2018). 78 IISD (2018). 79 Kirchner (2017), p. 137. On the concept see Nugroho (2012). 80 On the establishment of potential Arctic PSSAs see McCreath and Brigham (2018), pp. 313 et seq. 81 IMO Resolution A.982(24), Revised guidelines for the identification and designation of Particularly Sensitive Sea Areas (PSSAs). 82 Id. 83 Arctic Council (2009).

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expertise with the flexibility and accessibility offered by soft law instruments, can play an important role in encouraging Arctic nations to combat land-based pollution of the seas. Given that Arctic States also have coastlines outside the Arctic, such holistic efforts could yield benefits far beyond the Arctic and could help the Arctic Council to solidify its position as a policy-shaping institution based on scientific and local expertise and cooperation across political divides. The potential holistic nature of the work of the AC in this regard is not only reflected in the range of issues but also in the way Arctic governance can be shaped by the people who live in the Arctic. In light of the historical disregard for indigenous communities in the Arctic in particular, the active inclusion of indigenous peoples in the working processes of the Arctic Council and their involvement in all marine policy activities allows for a protection of the Arctic marine environment not only as an important environmental space but also in recognition of the relevance of the natural environment for the people who live in the Arctic and in particular the indigenous communities along the coasts of the Arctic Ocean. The Council also has advanced ecosystem-based marine management in many ways.84

4 Regulation of the Arctic Waters: Looking to the Future The Arctic Council’s approach in recent years has been to develop legal norms that govern the Arctic, including ocean areas, through international treaties drafted under its auspices. This marks an evolution, rather than a deviation. From its soft law origins, the AC’s work has moved to hard law, albeit without the AC itself taking over an actual legislative role. In material terms, the focus of the AC has been on specific problems for which it has a specific expertise gained through the efforts of the working groups and the attention to the people who live in the Arctic. This includes issues that are explicitly relevant for the Arctic Ocean (such as oil spill response) but also topics (such as SAR and science cooperation) that are of a wider interest and that can also be relevant from a maritime perspective. Even though the AC’s work is not limited to maritime issues, in sum the efforts undertaken by the AC, both directly by the AC and by the AC member States using other fora such as the IMO have created what might be considered the seed for a future Arctic Ocean regional seas program in anything but name. It seems a reasonable assumption that the AC will continue this successful approach. The creation of a specific AC marine commission has been proposed85 but its actual establishment is not yet certain, though the thematic and institutional approaches chosen by the AC show promise. In the future, the AC will be able to build on this experience and to utilize the same approach to help bring to life more international treaties with relevance for the Arctic.

84 85

See e.g. Arctic Council (2013). Arctic Council (2017), para. 12; cf. De Lucia et al. (2018), p. 265.

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In that way, it could follow the example set by the Council of Europe, amongst others. While the latter organization might be most famous for the creation of the European Convention on Human Rights, a wide range of international treaties have been created under its auspices, enabling member States to tackle problems shared by many of them. It is easy to envisage a similar development for the Arctic Council. In addition, the AC can learn from the work of the A5 in the context of Arctic Ocean fisheries: by getting selected outside actors (the +5 in the A5+5) on board early in the process but after significant preparatory work had already been done on the A5 level, the A5 have ensured that the CAOFA which applies to the central Arctic Ocean (high seas which, after all, can be used by vessels from all States) has a real chance of being implemented. Because the AC remains the most important forum on Arctic governance, taking note of the specific success of the effort by the A5 might be a way to contribute to ensuring that the relationship between the A5 and the AC remains one of cooperation within the AC framework rather than one of competition. Cumulatively, the efforts undertaken by the different actors in the Arctic, in particular the Arctic Council and the A5(+5), amount to the beginnings of something that might evolve into an informal regional seas program. For the time being, the few existing rules that can be used to protect the marine environment of the CAO are insufficient to manage the predictable challenges of the near future.86 In other contexts, Arctic States would be well advised to make use of existing international rules and to ensure their effective implementation. A case in point is ballast water: Ballast water is a particular problem in the Arctic because “[s] ince Arctic ports are used mostly to export raw materials, ships generally arrive with little cargo and full ballast tanks”87 and ballast water, which can contain invasive species, is emptied into the water at ports in the Arctic. An effective implementation of the Convention for Control and Management of Ship’s Ballast Water and Sediments88 (BWM Convention) is therefore in the interest of at least the A5, which will want to preserve the integrity of the Arctic marine environment. As there is already an international legal framework in place, there is no need for regulatory work on the part of the AC or the A5, but Arctic States could cooperate to identify best practices regarding the implementation of the BWM Convention and to improve compliance across the region.89

86

Kirchner and Kleemola-Juntunen (2018), p. 34. Byers (2013), p. 189. 88 International Convention for the Control and Management of Ships’ Ballast Water and Sediments (2004). 89 At the time of writing (early 2019), Canada, Norway, Sweden and Russia have acceded to the BWM Convention. Finland has accepted the Convention while neither the United States nor Iceland are parties to it. Denmark has acceded to the BWM Convention but at the same time declared that the BWM Convention would not apply to Greenland (the simultaneous declaration that the BWM Convention would not apply to Faroyar was withdrawn in 2015), IMO (2019), pp. 517 et seq. The example of the BWM Convention highlights that shared challenges do no not necessarily lead to joint approaches among the Arctic States. 87

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The A5+5 experience, on the other hand, might prove an inspiration for the AC as well,90 at least in some contexts (some of the treaties drafted under the auspices of the Council of Europe are also open to accession by non-member States). By combining the AC’s expertise with a wider methodological range, the AC has the potential to remain an effective forum for the foreseeable future. One possibility to achieve this might be through a hybrid model, combining binding international treaties negotiated under the auspices of the Arctic Council (which would be drafted with the guidance provided by the AC’s expertise and which could be created faster than in traditional multilateral treaty-drafting settings) which can be opened to non-Arctic States, for example in the form of a consultative status, thereby giving the latter a place at the table at parties’ conferences (COPs) without the Arctic States’ relinquishing control of the process. In recent years, the Arctic has experienced massive changes stemming from climate change and globalization. As these changes continue and are likely to accelerate, Arctic States have already reacted and are in the continuous process of shaping the norms that regulate the Arctic spaces which are beyond the limits of national jurisdictions. To do so, Arctic States have utilized both global instruments and fora as well as their own, newly created, tools and institutions. Today, norms for the Arctic are increasingly created in the Arctic, taking into account both cuttingedge scientific research and the knowledge that has been accumulated over many generations by the people who live in the Arctic. This proactive trend is likely to continue as the Arctic Ocean continues to open up and to attract interest also from outside the Arctic. As the Arctic Council moves into regulatory areas that are fairly ambitious, it benefits from its reliance on scientific and local expertise. In the long run, the AC’s method might even become a role model for other forms of regional cooperation in tackling urgent and emerging issues. As far as the Arctic Ocean is concerned, it appears that this proactive, science-informed approach, which takes into account the reality of the people who live in the Arctic, provides for a promising way to protect the Arctic Ocean, its environment and the people who live along its coasts.

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Serreze MC, Holland MM, Stroeve J (2007) Perspectives on the Arctic’s shrinking sea-ice cover. Science 315(5818):1533–1536. https://doi.org/10.1126/science.1139426. Available via http:// science.sciencemag.org/content/315/5818/1533.full Smith LC, Stephenson SR (2013) New Trans-Arctic shipping routes navigable by midcentury. Proc Natl Acad Sci U S A 110(13):E1191–E1195. https://doi.org/10.1073/pnas.1214212110. http:// www.pnas.org/content/110/13/E1191.full Thiele T (2018) Arctic high seas governance of biodiversity. In: Hildebrand LP, Brigham LW, Johansson TM (eds) Sustainable shipping in a changing Arctic. Springer, Cham, pp 227–239 Wadhams P (2017) A farewell to ice - a report from the Arctic. Penguin, London Weidemann L (2014) International governance of the Arctic marine environment: with particular emphasis on high seas fisheries. Springer, Cham Welch C (2017) Half of all species are on the move—and we’re feeling it, National Geographic News, 27 April 2017. Available via https://news.nationalgeographic.com/2017/04/climatechange-species-migration-disease/ Whomersley C (2016) The South China Sea: the award of the tribunal in the case brought by Philippines against China—a critique. Chin J Int Law 15:239–264 Zojer G (2018) The role of hydrocarbon development in Arctic governance: a suitable approach to human development in the region? In: Hossain K, Roncero Martín JM, Petrétei A (eds) Human and societal security in the circumpolar Arctic. Brill, Leiden, pp 212–242

Documents Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, signed 4 August 1995, entered into force 11 December 2001, 2167 UNTS 3 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (Arctic SAR), 12 May 2011, entered into force 19 January 2013. Available via http://www.arcticcouncil.org/index.php/en/our-work/agreements Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic, 15 May 2013, entered into force 25 March 2016. Available via https://oaarchive.arctic-council. org/handle/11374/529 Agreement on Enhancing International Arctic Scientific Cooperation, 11 May 2017, entered into force 23 May 2018. Available via https://oaarchive.arctic-council.org/handle/11374/1916 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean, 3 October 2018. Available via https://eur-lex.europa.eu/legal-content/GA/TXT/? uri¼CELEX:52018PC0454 Antarctic Treaty, 1 December 1959, entered into force 23 June 1961, 402 UNTS 71 Arctic Council (1996). Declaration on the Establishment of the Arctic Council, Ottawa Canada, September 19 1996. Available via https://oaarchive.arctic-council.org/bitstream/handle/11374/ 85/EDOCS-1752-v2-ACMMCA00_Ottawa_1996_Founding_Declaration.PDF?sequence¼5& isAllowed¼y Arctic Council (2009). Regional Programme of Action for the Protection of the Arctic Marine Environment from Land-Based Activities. Available via https://www.pame.is/images/02_Doc ument_Library/RPA_Reports/RPA_2009/PAME_RPA_layout_031109-_leirtt_nv_09.pdf Arctic Council (2013). Ecosystem-Based Management in the Arctic, Report submitted to Senior Arctic Officials by the Expert Group on Ecosystem-Based Management. Available via https:// oaarchive.arctic-council.org/bitstream/handle/11374/122/MM08_EBM_report%20%281%29. pdf?sequence¼1&isAllowed¼y

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Arctic Council (2015). Environmental Provisions of Polar Code adopted. Available via https:// www.arctic-council.org/en/our-work2/8-news-and-events/130-environmental-provisions-ofpolar-code-adopted Arctic Council (2017). Declaration of the Foreign Ministers of the Arctic States at the 10th Ministerial meeting of the Arctic Council, held in Fairbanks, Alaska, 10-11 May, 2017, Fairbanks Declaration (2017). Available via https://oaarchive.arctic-council.org/bitstream/han dle/11374/1910/EDOCS-4339-v1-ACMMUS10_FAIRBANKS_2017_Fairbanks_Declara tion_Brochure_Version_w_Layout.PDF?sequence¼8&isAllowed¼y Arctic Marine Shipping Assessment (AMSA) 2009 Report, https://oaarchive.arctic-council.org/ handle/11374/54 Arctic Waters Pollution Prevention Act (AWPPA) (1985), (R.S., 1985, c. A-12). Available via https://www.tc.gc.ca/eng/acts-regulations/acts-1985ca-12.htm Code of Conduct for Responsible Fisheries (1995). Available via http://www.fao.org/3/a-v9878e. htm Commission on the Limits of the Continental Shelf (CLCS) (2009). Twenty-third session New York, 2 March-9 April 2009. Available via https://documents-dds-ny.un.org/doc/ UNDOC/GEN/N09/307/58/PDF/N0930758.pdf?OpenElement Commission on the Limits of the Continental Shelf (CLCS) (2014). Outer limits of the continental shelf beyond 200 nautical miles from the baselines: Submissions to the Commission: Partial Submission by Canada, 29 December 2014. Available via http://www.un.org/Depts/los/clcs_ new/submissions_files/submission_can_70_2013.htm Convention on the Conservation of Antarctic Marine Living Resources, Canberra, 20 May 1980, entered into force 7 April 1982, 1329 UNTS 47. Available via https://www.ccamlr.org/en/ organisation/camlr-convention-text Convention Respecting Measures for the Preservation and Protection of Fur Seals and Sea Otters in the North Pacific Ocean, 7 July 1911, the Treaty text available at the American Journal of International Law, Supplement Official documents 1911 Vol. 5(4): p. 267 Ilulissat Declaration (2008). Available via https://cil.nus.edu.sg/wp-content/uploads/2017/07/2008Ilulissat-Declaration.pdf IMO (2019). Status of Conventions, http://www.imo.org/en/About/Conventions/ StatusOfConventions/Documents/Status%20-%202019.pdf IMO Resolution A.982(24), Revised guidelines for the identification and designation of Particularly Sensitive Sea Areas (PSSAs) Interim Convention between the United States of America, Canada, Japan and the Union of Soviet Socialist Republics on conservation of North Pacific fur seals, 9 February 1957, entered into force 14 October 1957, 314 UNTS 106; Agreement on the Conservation of Polar Bears signed 15 November1973, entered into force 26 May 1976, 2898 UNTS 243 International Convention for the Control and Management of Ships’ Ballast Water and Sediments (BWM), 13 February 2004, entered into force 8 September 2017, BWM/CONF/36. Available via http://library.arcticportal.org/1913/1/International%20Convention%20for%20the%20Con trol%20and%20Management%20of%20Ships%27%20Ballast%20Water%20and%20Sedi ments.pdf International Convention for the Prevention of Pollution from Ships (MARPOL), 1973, and Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 17 February 1978, entered into force 3 October 1983, 1340 United Nations Treaty Series 62 International Convention for the Safety of Lives at Sea (SOLAS), 1 November 1974, entered into force 25 May 1980, 1184 United Nations Treaty Series 278 NOAA (2019). Arctic Report Card: Update for 2018. Available via https://arctic.noaa.gov/ReportCard/Report-Card-2018 Permanent Court of Arbitration, The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China), Case 2013-19, Award of 12 July 2016. Available via https://pcacases.com/web/sendAttach/2086

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Polar Code (2016). MEPC 68/21/Add.1, Annex 10. Available via http://www.imo.org/en/ MediaCentre/HotTopics/polar/Documents/POLAR%20CODE%20TEXT%20AS% 20ADOPTED.pdf Regional Seas Programmes. Available via https://www.unenvironment.org/explore-topics/oceansseas/what-we-do/working-regional-seas/regional-seas-programmes Statute of the International Court of Justice (1945). Available via https://www.icj-cij.org/en/statute Statute of the Permanent Court of International Justice (1920). Available via https://www.refworld. org/docid/40421d5e4.html United Nations Convention for the Law of the Sea, 10 December 1982, entered into force 16 November 1994, 1833 UNTS 3 United Nations General Assembly Resolution A/RES/72/249 - International legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, 24 December 2017. Available via https://undocs.org/en/a/res/72/249 United States of America Department of State (1992) Limits in the Seas No. 112, United States Responses to Excessive Maritime Claims

Timo Koivurova Research professor and director of the Arctic Centre, University of Lapland, Finland. His research work address the interplay between different levels of environmental law, legal status of indigenous peoples, law of the sea in the Arctic waters, integrated policy in the EU, the role of law in mitigating or adapting to climate change, the function and role of the Arctic Council in view if its future challenges and the possibilities for an Arctic treaty. Stefan Kirchner Associate Professor of Arctic Law at the Arctic Centre of the University of Lapland in Rovaniemi, Finland. Earlier he served as a lawyer with Germany’s Federal Maritime and Hydrographic Agency. His research interests are Arctic governance, the law of the sea and human rights. Pirjo Kleemola-Juntunen Senior Researcher at the Northern Institute for Environmental and Minority Law, Arctic Centre of the University of Lapland in Rovaniemi, Finland. She has previously worked in the State administration and as a bank lawyer. Her work focuses on international law in particular the law of the sea and international environmental law.

Chapter 5

Regional Fisheries Management Organizations Erik J. Molenaar

Abstract Regional fisheries management organizations and arrangements (RFMO/ As) can at present be regarded as the preeminent institutions of international fisheries law. This chapter examines their role in the implementation and development of the law of the sea. It sketches the origins of international fisheries law and RFMO/As, and offers an overview of the different types of RFMO/As and the distinctions between them, their key functions, and whether or not a body qualifies as an RFMO or an RFMA. As part of this latter aspect, several regional bodies are closely examined, in particular those relating to the Arctic and the Antarctic. It is argued that RFMO/As can perform additional roles besides conservation and management of fisheries resources. This ‘role-oriented approach to RFMO/As’ is supported by the rules and practices of several RFMO/As. Special attention is finally devoted to the mandate of RFMO/As to deal with free riders and their rules and practices aimed at safeguarding the interests of the ‘Founding Fathers’ that initiated the negotiation of the RFMO/As’ establishment. These issues are not only of critical importance to RFMO/As but are to a considerable extent also interrelated.

Writing this chapter was also facilitated by funding from the Netherlands Polar Programme, and the Research Council of Norway (project STOCKSHIFT). The views in this chapter are those of the author and not necessarily those of the Netherlands government. The author is very grateful for comments received from Nicola Ferri and Martijn Peijs on an earlier version. E. J. Molenaar (*) Netherlands Institute for the Law of the Sea (NILOS), Utrecht Centre for Water, Oceans and Sustainability Law (UCWOSL), Utrecht University, Utrecht, The Netherlands Norwegian Centre for the Law of the Sea (NCLOS), UiT The Arctic University of Norway, Tromsø, Norway e-mail: [email protected] © Springer Nature Switzerland AG 2020 M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea, https://doi.org/10.1007/978-3-030-42671-2_5

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1 Introduction Regional fisheries management organizations and arrangements (RFMO/As) can at present be regarded as the preeminent institutions of international fisheries law, which is the domain (or: ‘rule-complex’) of international law that relates specifically to the conservation and management and/or development of marine capture fisheries. It consists of substantive norms (e.g. rights, obligations and objectives), substantive fisheries standards (e.g. catch restrictions) as well as institutional rules and arrangements (e.g. mandates and decision-making procedures). International fisheries law is part of public international law and can also be seen as a branch or part of the domain of the international law of the sea. This chapter examines the role of RFMO/As in the implementation and development of the law of the sea. The next Section on ‘History’ provides some background information on the origins of international fisheries law and RFMO/As. Subsequently, Sect. 3 deals with definitions, provides an overview of the different types of RFMO/As and the distinctions between them, their key functions, and whether or not a body qualifies as an RFMO or an RFMA. Section 4 is devoted to ‘Dealing with Free Riders’ and Sect. 5 to the equally critical issue of ‘Safeguarding the Founding Fathers’ Interests’. The chapter ends with ‘Conclusions’ in Sect. 6.

2 History The origins of international fisheries law can be traced back to the end of the nineteenth century, when North Sea coastal States adopted multilateral rules on fisheries enforcement at sea, and the United States unsuccessfully asserted coastal State jurisdiction for the purpose of the conservation of fur seals in high seas areas adjacent to its territorial sea.1 The earliest precursor of the bilateral International Pacific Halibut Commission (IPHC)—established in 19242—could be regarded as the first RFMO avant la lettre. The earliest multilateral fisheries bodies were the pre-cursors of the North-East Atlantic Fisheries Commission (NEAFC) and the Northwest Atlantic Fisheries Organization (NAFO), both established shortly after World War II.3 Other progress on intergovernmental regulation of marine living resources before and shortly after World War II related to marine mammals, and saw the establishment of the International Whaling Commission (IWC) in 1948.4 As the

1

Takei (2013), pp. 14–16. Convention for the Preservation of the Halibut Fishery of the North Pacific Ocean and the Bering Sea, Washington D.C., 2 March 1923. In force 23 October 1924 (32 LNTS 93). 3 Takei (2013), p. 25. 4 Pursuant to the ICRW (International Convention for the Regulation of Whaling, Washington D.C., 2 December 1946. In force 10 November 1948 (161 UNTS 72), as amended. Consolidated version available at https//iwc.int). 2

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IWC’s mandate is confined to marine mammals rather than fish, however, it is not regarded as an RFMO in this publication. Even though the first RFMOs avant la lettre were already operating by the start of the first United Nations Conference on the Law of the Sea (UNCLOS I), the 1958 High Seas Fishing Convention5 did not accord regional fisheries bodies or comparable mechanisms a prominent role. Instead, the Convention relied above all on the special interests of coastal States in “the maintenance of the productivity of the living resources in any area of the high seas adjacent to [their] territorial sea”, as well as compulsory arbitration.6 The only implicit reference to fisheries bodies is included in Article 6(2), which reads: A coastal State is entitled to take part on an equal footing in any system of research and regulation for purposes of conservation of the living resources of the high seas in that area, even though its nationals do not carry on fishing there.

The phrase “any system of research and regulation” would have certainly comprised the then existing RFMOs, but was presumably also broad enough to encompass other regional and global bodies. In comparison with the 1958 High Seas Fishing Convention, the provisions of the UNCLOS7 on transboundary fish stocks and high seas fishing give cooperation through subregional and regional organizations a much more prominent role, despite leaving States a considerable margin of discretion in deciding on the form and level of such cooperation.8 These features are to some extent also incorporated in the Fish Stocks Agreement,9 which is understandable given that it is an implementation agreement of the UNCLOS. However, due to the Fish Stocks Agreement’s more explicit and specific support for regional fisheries regulation through RFMO/As, it is widely regarded as reflecting the international community’s recognition of RFMO/ As as the preeminent vehicles for regional fisheries regulation.10

5 Convention on Fishing and Conservation of the Living Resources of the High Seas of 29 April 1958. In force 20 March 1966 (559 UNTS 285). 6 Arts 6(1) and 9. See, however, Resolution III ‘International fishery conservation conventions’ of 25 April 1958; and the International Law Commission (ILC)’s “Commentary to the articles concerning the law of the sea” (Yearbook of the International Law Commission, 1956, vol. II) 286–288, containing its Commentary on Art. 49 (which eventually became Art. 1(1) of the 1958 High Seas Fishing Convention), in particular paras 4, 9 and 19, which refer to earlier proposals involving international fisheries bodies. See Serdy (2015), pp. 11–13 for a fuller account. 7 United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982. In force 16 November 1994 (1833 UNTS 396). 8 Cf. Rayfuse (2015), p. 440. See Arts 63, 44, 66, 67 and 118. 9 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, 4 August 1995. In force 11 December 2001 (2167 UNTS 3). 10 See Part III on ‘Mechanisms for International Cooperation Concerning Straddling Fish Stocks and Highly Migratory Fish Stocks’, and in particular Arts 8–13 and 17.

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Following the conclusion of the negotiations on the Fish Stocks Agreement, the international community devoted significant efforts to ensuring full high seas coverage with RFMO/As that meet the minimum standards laid down in the Fish Stocks Agreement. This involved modernizing the constitutive instruments of existing fisheries bodies as well establishing entirely new RFMO/As. An example of the latter is the CAOF Agreement,11 which was opened for signature in October 2018 and is—arguably—an RFMA (see Sect. 3.4). At the time of writing, the International Commission for the Conservation of Atlantic Tunas (ICCAT) had not yet finalized its negotiations on modernizing its 1966 constitutive instrument,12 and the Western Central Atlantic Fishery Commission (WECAFC) was engaged in a process to transform itself into an RFMO.13 Other gaps in high seas coverage with RFMO/ As remain to be filled as well.14 The fact that RFMO/As are at present the preeminent vehicles for fisheries regulation at the regional level and, arguably, the preeminent institutions of international fisheries law overall, is to some extent a logical consequence of the geographical distribution of many fish stocks. At least as important, however, is that pro-active and pioneering measures and approaches initiated within RFMO/As are often subsequently elevated to the global component of international fisheries law. Once these measures and approaches have become global minimum standards, they form the benchmark that compels ‘straggling’ RFMOs to ‘upgrade’ their constitutive instruments and practices. Well known examples of RFMO/As as the primary source for the progressive development of international fisheries law include the de facto ecosystem approach to fisheries (EAF) management that was pioneered in the CAMLR Convention15— to be subsequently embraced by the Fish Stocks Agreement16—and the concept of illegal, unreported and unregulated (IUU) fishing, which was developed by the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR),17 and eventually culminated in the IPOA-IUU18 and the PSM

11

Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean, Ilulissat, 3 October 2018. Not in force; OJ 2019, L 73/3. 12 International Convention for the Conservation of Atlantic Tunas, Rio de Janeiro, 14 May 1966. In force 21 March 1969 (673 UNTS 63), as amended. Consolidated version available at www.iccat.int. 13 Report of the 2016 WECAFC Meeting, at para. 55. 14 See Harrison (2019), p. 81, who mentions the Central Eastern and South-Western Atlantic and a smaller gap in the North Pacific. A small gap also exists in the Indian Ocean. 15 Convention on the Conservation of Antarctic Marine Living Resources, Canberra, 20 May 1980. In force 7 April 1982 (1329 UNTS 47). See Art. II(3)(b) and (c). 16 See in particular Arts 5(b) and (d)-(g) and 10(d). 17 See the Report of the 16th (1997) Annual CCAMLR Meeting, at para. 2.1 and Annex 5, paras 1.2 and 1.28. 18 International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing. Adopted on 2 March 2001 and endorsed on 23 June 2001; text available at www.fao.org/fi.

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Agreement.19 Given CCAMLR’s long-standing reputation as a leader in conservation and management of marine living resources, it is worth nothing that many CCAMLR Members have at recent CCAMLR Meetings voiced their concern that CCAMLR risks losing its leadership status.20

3 Types, Distinctions, Functions and Qualification 3.1

Introduction

Whether or not a body qualifies as an RFMO or an RFMA determines the applicability of particular rights and obligations under international fisheries law. These rights can be relevant for participants as well as non-participants. Especially relevant for non-participants are the rights to engage in fishing and fishing-related activities (e.g. provisioning of fuel, water etc., and transhipment of catch) on the high seas pursuant to Articles 87(1)(a) and 116 of the UNCLOS and the right of States with a ‘real interest’ to participate in RFMO/As pursuant to Article 8(3) of the Fish Stocks Agreement. Relevant rights for participants include the mandate to deal with non-participants that undermine the efforts of RFMO/As due to their behavior as ‘free riders’ (see Sect. 4). Determining whether or not a body qualifies as an RFMO or an RFMA is not always a straightforward task, among other things because there are at present no generally accepted definitions for the concepts of an RFMO or an RFMA. While no definitions are included in the UNCLOS for either concept, Article 1(1)(d) of the Fish Stocks Agreement nevertheless defines an RFMA as a cooperative mechanism established in accordance with the [LOS] Convention and this Agreement by two or more States for the purpose, inter alia, of establishing conservation and management measures in a subregion or region for one or more straddling fish stocks or highly migratory fish stocks.

A noteworthy feature of this definition is that an RFMA can also have just two participating States (or entities). Moreover, unlike an RFMO, an RFMA is not an intergovernmental organization and also does not establish one. This means that an RFMA does not necessarily have to be established pursuant to a legally binding instrument. The concepts of an RFMO and an RFMA are not exclusively used in relation to straddling and highly migratory fish stocks, but also for other categories of fish

19 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Rome, 22 November 2009. In force 5 June 2016; text available at www. fao.org/Legal. 20 See, inter alia, the Report of the 37th (2018) Annual CCAMLR Meeting, at paras 3.24, 5.5, 9.14, 9.16 and 10.2.

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stocks, such as anadromous, shared and discrete high seas fish stocks.21 This is also supported by the more recent definition of an RFMO included in Article 1(i) of the PSM Agreement, which only says that it is “an intergovernmental fisheries organization [. . .] that has the competence to establish conservation and management measures”. Illustrative is moreover the broad concept of a regional fishery body (RFB) used by the United Nations Food and Agriculture Organization (FAO), to denote a mechanism through which States and entities cooperate for the conservation and management of marine living resources and/or the development of marine capture fisheries.22 The broad scope of the concept of an RFB is reflected in the fact that it not only also covers bodies regulating inland fisheries and aquaculture, but also the IWC and the North Atlantic Marine Mammal Commission (NAMMCO)—but not other regional instruments and bodies relating to marine mammals23—and even ACAP,24 which is a treaty aimed at the conservation of albatross and petrel species against the threats posed by fisheries by-catch in particular. RFMO/As are a sub-set of RFBs that can be distinguished from other RFBs on account of the fact that (1) they relate to marine fisheries, rather than inland fisheries; and (2) they have a mandate to impose legally binding conservation and management measures on their members or participants, rather than merely exercising an ‘advisory’ mandate (whether primarily science-oriented (e.g. the International Council for the Exploration of the Sea (ICES)) or management-oriented (e.g. WECAFC). Moreover, the need for a dual mandate of conservation and management excludes instruments and bodies that are only aimed at conservation of fish species, for instance the global MOU on Sharks25 adopted under the CMS.26

3.2

Types and Key Distinctions

A principal distinction is that between RFMOs and RFMAs. Whereas the former establish an intergovernmental organization, the latter commonly establish a Conference of the Parties (COP) or a Meeting of the Parties (MOP) as their principal decision-making body.

21

See Molenaar (2016), pp. 441–445 for a more comprehensive discussion. See the information at www.fao.org/fishery/topic/16800/en. 23 Billé et al. (2016), p. 29. 24 Agreement on the Conservation of Albatrosses and Petrels, Canberra, 19 June 2001. In force 1 February 2004 (2588 UNTS 257); as amended, consolidated version at www.acap.aq. 25 Memorandum of Understanding on the Conservation of Migratory Sharks, Manila, 12 February 2010; as amended. Consolidated version available at www.cms.int/sharks. 26 Convention on the Conservation of Migratory Species of Wild Animals, Bonn, 23 June 1979. In force 1 November 1983 (1651 UNTS 355). 22

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Another key distinction concerns their institutional setting. Most RFMO/As are entirely separate, autonomous or ‘stand-alone’ bodies that have been negotiated and established outside the scope of an overarching intergovernmental body. This general rule is subject to a few exceptions. The first is CCAMLR, which is part of the Antarctic Treaty System. Its constitutive instrument—the CAMLR Convention—was largely negotiated by the Antarctic Treaty Consultative Parties in the context of the Second Special Antarctic Treaty Consultative Meeting. For various reasons, however, its final text was adopted by a stand-alone diplomatic conference.27 However, CCAMLR is by no means a ‘typical’ RFMO and Sect. 3.4.4 examines how it should be qualified. The second exception is formed by RFMOs established under Article XIV of the FAO Constitution.28 At present these are the General Fisheries Commission for the Mediterranean (GFCM) and the Indian Ocean Tuna Commission (IOTC). WECAFC could possibly become the third.29 While RFMO/As are largely autonomous bodies, it should nevertheless be assumed that any recommendations of the United Nations General Assembly (UNGA), FAO’s Committee on Fisheries (COFI), the informal consultations of States Parties to the Fish Stocks Agreement (ICSPs), or the (Resumed) Fish Stocks Agreement Review Conferences specifically directed at participants of RFMO/As will be given serious consideration by them. The UNGA’s recommendations relating to high seas bottom-fishing were a case in point.30 Moreover, participants of RFMO/ As with competence over straddling or highly migratory fish stocks that are also parties to the Fish Stocks Agreement are bound by the objectives of the Agreement as well as the features, functions and other guidance for RFMO/As set out in Articles 8–14 of the Agreement. RFMO/As can also be distinguished on account of their species coverage. Some only deal with one specific species (e.g. IPHC and the Commission for the Conservation of Southern Bluefin Tuna (CCSBT)), others with specific groups of species (e.g. the four other ‘tuna RFMOs’ that deal with various tuna and tuna-like species; see Table 5.1 below), and yet others with all ‘residual species’ in a specific geographical area, for instance NAFO and NEAFC. 27

See Barnes (1982). Constitution of the Food and Agriculture Organization of the United Nations, Quebec City. Opened for signature and entered into force on 16 October 1945, as amended. Consolidated version available at www.fao.org/Legal. 29 See note 13 supra. The Report of the 2016 WECAFC Meeting, at para. 59, refers to the “challenges and experiences with RFMOs established under FAO’s Constitution”. See also ‘Discussion Paper in Support of the WECAFC Strategic Reorientation Process’, 8 October 2018 (on file with author), at Section 10. While the Regional Commission for Fisheries (RECOFI) has, pursuant to Art. III of the Agreement for the Establishment of the Regional Commission for Fisheries (approved by the FAO Council in November 1999; in force 26 February 2001; http://www.fao. org/legal), the mandate to adopt legally binding conservation and management measures, it does not seem to have used this mandate to date. 30 The most well-known are those in paras 66–71 of UNGA Res. 59/25, of 17 November 2004. See, for instance, the pro-active approach pursued by NEAFC pursuant to these UNGA Recommendations as described in Molenaar (2005), pp. 538–539. 28

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Table 5.1 RFMO/As with high seas coverage Acronym Name in full Tuna RFMOs CCSBT Commission for the Conservation of Southern Bluefin Tuna IATTC Inter-American Tropical Tuna Commission ICCAT International Commission on the Conservation of Atlantic Tunas IOTC Indian Ocean Tuna Commission WCPFC Western and Central Pacific Fisheries Commission Non-Tuna RFMOs CCAMLR Commission for the Conservation of Antarctic Marine Living Resources GFCM General Fisheries Commission for the Mediterranean NAFO Northwest Atlantic Fisheries Organization NEAFC North-East Atlantic Fisheries Commission NPFC North Pacific Fisheries Commission SEAFO South East Atlantic Fisheries Organisation SPRFMO South Pacific Regional Fisheries Management Organisation Non-Tuna RFMAs CAOF Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Agreement Ocean (MOP) CBS Convention on the Conservation and Management of Pollock Resources in the Convention Central Bering Sea (COP) JNRFC Joint Norwegian Russian Fisheries Commission SIOFA Southern Indian Ocean Fisheries Agreement (MOP)

In terms of regulatory areas, RFMO/As can be divided in the following three groups: 1. High seas as well as coastal State maritime zones. This group includes the five tuna RFMOs and some ‘non-tuna RFMO/As’, for instance CCAMLR and GFCM; 2. Only or mainly high seas. This group includes most non-tuna RFMO/As; and 3. Only coastal State maritime zones. This group consists of only a few RFMOs, for instance the Pacific Salmon Commission. Membership in these RFMOs is limited to coastal States. At the time of writing, there were five tuna RFMOs and 11 non-tuna RFMO/As whose regulatory areas include areas of high seas or consist entirely of high seas.31 These are listed in Table 5.1. While participation in these RFMO/As is commonly a mix of coastal States and high seas fishing States, some consist exclusive of coastal States (e.g. the Joint Norwegian Russian Fisheries Commission (JNRFC) and NEAFC).32

31 The North Atlantic Salmon Conservation Organization (NASCO) and the North Pacific Anadromous Fish Commission (NPAFC) are excluded due to their prohibitions on high seas fishing. 32 For a detailed study see Molenaar (2019).

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Key Functions

An appropriate starting point for determining the key functions of RFMO/As relating to the conservation and management of fisheries resources is Article 10 of the Fish Stocks Agreement, which is specifically devoted to functions of RFMO/As and contains 13 paragraphs. A more recent understanding of the key functions of RFMO/ As is provided by the common list of criteria for performance reviews of RFMOs that was developed by the so-called ‘Kobe Process’—a cooperative process among the five tuna RFMOs—on the basis of the performance criteria used for the First (2006) NEAFC Performance Review.33 An updated version of this list used by the Second (2016) ICCAT Performance Review34 groups the criteria together in the following five functional areas: 1. Conservation and management; which includes such key functions as data collection and sharing, setting total allowable catches (TACs) for target species, capacity management, allocating fishing opportunities and implementing EAF management; 2. Monitoring, control and surveillance (MCS); comprising port State measures and integrated MCS measures (e.g. observers, catch documentation and trade tracking schemes, restrictions on transshipment, and boarding and inspection schemes); 3. Compliance and enforcement; which includes cooperative mechanisms to detect and deter non-compliance (e.g. compliance committees and IUU Vessel Lists); 4. Governance; which includes such functions as decision-making, dispute settlement, cooperation with other RFMO/As and capacity building; and 5. Science; which covers in particular the quality and provision of scientific advice that is required for the assessment of stocks of target species and EAF management more broadly.

3.4 3.4.1

Qualifying as an RFMO or an RFMA Introduction

As noted at the outset of Sect. 3.1, qualifying as an RFMO or an RFMA determines the applicability of particular rights and obligations under international fisheries law, which can be relevant for participants as well as non-participants. The following three subsections examine whether or not JNRFC, the CAOF Agreement and CCAMLR qualify as an RFMO or an RFMA. Inspired by the conclusion that

33 See Performance Review by Regional Fishery Bodies: Introduction, Summaries, Synthesis and Best Practices. Volume I: CCAMLR, CCSBT, ICCAT, IOTC, NAFO, NASCO, NEAFC (FAO Fisheries and Aquaculture Circular No. 1072 (FIPI/C1072): 2012), p. 5. The criteria are reproduced in Appendix 1. 34 See the Report of the Second (2016) ICCAT Performance Review, at Annex 2.

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CCAMLR qualifies as ‘more than an RFMO’, Sect. 3.4.5 discusses the so-called ‘role-oriented approach to RFMO/As’.

3.4.2

JNRFC

Qualification as an RFMO or an RFMA can also trigger special entitlements. One example is related to the abstention from commercial fishing on the high seas portion of the central Arctic Ocean, as laid down in Article 3(1)(a) of the CAOF Agreement. This abstention is nevertheless subject to several exemptions. One of these concerns commercial fishing pursuant to existing RFMO/As. During the negotiations on the CAOF Agreement,35 consensus existed among the delegations that NEAFC qualifies as an RFMO and that fishing by NEAFC Members pursuant to NEAFC’s conservation and management measures in the area of overlap between the NEAFC Convention Area and the high seas portion of the central Arctic Ocean would therefore be covered by this exemption. At the same time, however, some delegations were not convinced that JNRFC also qualifies as an RFMO or an RFMA, and felt that JNRFC should at any rate not be covered by an exemption. They therefore made efforts to ensure that the CAOF Agreement would not amount to international recognition of JNRFC as an RFMO or an RFMA, and that JNRFC would not be covered by an exemption. This led, inter alia, to the phrases “[be] established and [are] operated in accordance with international law” in the Preamble and Article 3(1) (a) of the CAOF Agreement.36 While JNRFC was established by means of a treaty,37 the fact that the Commission is not served by a secretariat, and that its two Members appear not to intend the Commission to have a ‘will of its own’, are strong indications that it is not an intergovernmental organization. This suggests that its two Members regard it as an RFMA.38 The diverging views on the status of JNRFC during the negotiations on the CAOF Agreement must be understood in the light of JNRFC’s geographical competence in the high seas portion of the central Arctic Ocean by virtue of the absence of an explicit geographical mandate in its constitutive instrument as well as the explicit assertions of such geographical competence by its two Members, and their unorthodox regulation of fishing in the high seas pocket in the Barents Sea (the so-called ‘Loophole’). The latter includes encouraging third States and entities (i.e. the European Union (EU)) to discontinue, or not to commence, fishing for particular species in the Loophole and thereby not to exercise their entitlements The author participated in all except the first of the six rounds of negotiations on the CAOF Agreement; some as the representative of the Netherlands in the delegation of the European Union (EU); some as a legal expert of the European Commission in the delegation of the EU. 36 See Molenaar (2020), at subsection 3.3 for an in-depth analysis. 37 Framework Agreement (Agreement between the Government of the Kingdom of Norway and the Government of the Union of Soviet Socialist Republics on Co-operation in the Fishing Industry, Moscow, 11 April 1975. In force 11 April 1975 (983 UNTS 7)). 38 Molenaar (2016), p. 444. 35

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under Article 116 of the UNCLOS and Article 8(3) of the Fish Stocks Agreement mentioned above. In return, Norway and the Russian Federation grant these third States and entities fisheries access to their own maritime zones and access to and use of their ports.39 As can be inferred from the discussion above, there is at present no international body mandated by the international community to determine whether or not an international body qualifies as an RFMO or an RFMA. The competence to make such determinations lies with States and entities; whether individually or collectively. It is in this context worth noting that FAO’s list of RFBs used to distinguish RFMO/As from other RFBs.40 This distinction is likely to have been removed in order to avoid that being listed as RFMO/As would to some extent amount to multilateral recognition of the status of these international bodies under international law.

3.4.3

The CAOF Agreement

The issue of qualifying as an RFMO or an RFMA also exists for the CAOF Agreement itself. Instead of establishing an intergovernmental organization, the CAOF Agreement establishes an MOP as its decision-making body.41 The CAOF Agreement cannot therefore qualify as the constitutive instrument of an RFMO. While the Preamble to the CAOF Agreement notes that it is “premature under current circumstances to establish any additional [RFMO/As] for the high seas portion of the central Arctic Ocean”, the Agreement’s operative part provides strong arguments for the view that the CAOF Agreement qualifies as an RFMA within the meaning of the Fish Stocks Agreement. First of all, the restrictions imposed on exploratory fishing pursuant to Articles 3(3) and 5(1)(d) of the CAOF Agreement qualify as ‘conservation and management measures’ pursuant to the definition in Article 1(1)(b) of the Fish Stocks Agreement. Second, Article 10(2) of the CAOF Agreement contains the requirement of real interest as the only substantive condition for accession, which thereby directly implements Article 8(3) of the Fish Stocks Agreement. Third, and more importantly, in light of, inter alia, its Objective in Article 2, its qualified and temporary abstention from commercial high seas fishing, and its Joint Program of Scientific Research and Monitoring, the CAOF Agreement as a whole should be regarded as a ‘cautious conservation and management measure’

39

See Molenaar (2016), pp. 438–441. For a recent assertion of JNRFC’s competence in the Arctic Ocean, see the Protocol of the 48th (2018) Annual JNRFC Session, at p. 19. 40 This distinction was still used in the version of the list dated 2 July 2014 used for the publication by Billé et al. (2016). 41 Art. 5(1) of the CAOF Agreement.

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in the context of the obligations in Article 6(6) of the Fish Stocks Agreement just mentioned above.42 Moreover, as argued in detail elsewhere43—based on the author’s participation in the negotiations on the CAOF Agreement44—even if, during the initial stages of the negotiations on the CAOF Agreement, many or most of the delegations were in fact fully aware that the negotiations were aimed at establishing something else than an RFMA, this is unlikely to have had much influence—if at all—on the substance of the negotiations. More importantly, it is submitted that, during the more advanced stage of the negotiations—in particular the 4th Meeting in Tórshavn—all delegations eventually recognized that (limited) commercial fishing could also occur pursuant to conservation and management measures adopted by the MOP under Article 3(1)(b) of the CAOF Agreement. This even led one delegation to explicitly state that the draft text had developed into an RFMA. While no other delegation took the floor to respond to this statement, there was a clear sense in the room that the delegations’ perception of—or even position on—the nature of the instrument they were negotiating, had significantly changed.

3.4.4

CCAMLR

The best known debate on the qualification as an RFMO/A relates to CCAMLR. The debate on this between its Members has been ongoing for a considerable period of time, and continues up until today. CCAMLR was established as an intergovernmental organization under the CAMLR Convention.45 This means that the CAMLR Convention does not qualify as an RFMA. It is evident that CCAMLR is not a typical RFMO, if an RFMO at all. The CAMLR Convention, CCAMLR and its actions (e.g. conservation measures and resolutions) are part of the ATS,46 and thereby directly linked to the unresolved question on title to land territory south of 60 South, and the key role of scientific research in Antarctica; both of which are reflected in the Antarctic Treaty.47 Such linkages are also directly incorporated in the CAMLR Convention, including the entitlement to become a Member of CCAMLR on account of engagement in “research [. . .] activities in relation to the marine living resources to which this 42 An early postulation of this argument by this author can be found in Molenaar (2016). A similar conclusion is embraced by Schatz et al. (2019). 43 Molenaar (2020), at subsection 6.3. 44 See note 35 supra. 45 Art. VII(1) of the CAMLR Convention. 46 Cf. Art. 1(e) of the Madrid Protocol (Protocol on Environmental Protection to the Antarctic Treaty; Annexes I-IV, Madrid, 4 October 1991. In force 14 January 1998; Annex V (adopted as Recommendation XVI-10), Bonn, 17 October 1991. In force 24 May 2002; Annex VI (adopted as Measure 1(2005)), Stockholm, 14 June 2005. Not in force. All texts available at www.ats.aq. 47 See, inter alia, the Preamble and Arts II–IV and IX of the Antarctic Treaty (Washington D.C., 1 December 1959. In force 23 June 1961 (402 UNTS 71)).

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Convention applies”.48 At the time of writing, a considerable number of CCAMLR Members participated on this basis in CCAMLR, and were not engaged in fishing activities in the CAMLR Convention Area.49 While participation of such ‘non-user States’ is also possible in some of the (other) RFMO/As listed in Table 5.1 above, this entitlement hardly seems to have been exercised in practice.50 The objective of the CAMLR Convention is also unlike that of any of the (other) RFMO/As listed in Table 5.1 above. Paragraph 1 of Article II of the CAMLR Convention stipulates that its objective is “the conservation of Antarctic marine living resources”, while paragraph 2 clarifies that “the term ‘conservation’ includes rational use”. Notably absent in these paragraphs and paragraph 3 of Article II are the words ‘fish’, ‘fishery resources’, ‘fishing’ or ‘fisheries.’ By way of contrast, reference can be made to the South Pacific Regional Fisheries Management Organisation (SPRFMO)—one of the newest RFMOs—whose constitutive instrument contains the following objective: The objective of this Convention is, through the application of the precautionary approach and an ecosystem approach to fisheries management, to ensure the long-term conservation and sustainable use of fishery resources and, in so doing, to safeguard the marine ecosystems in which these resources occur.51

Interestingly, CCAMLR is not only included in FAO’s list of RFBs but is also treated by the United Nations Environment Programme (UNEP) as an independent regional seas programme.52 It is submitted that listing CCAMLR among RFBs is more convincing, as its competence is in principle limited to fishing, fishing-related activities and research, but does not extend to any other human activity.53 Conversely, the mandates of the principal decision-making bodies under regional seas programmes extend in principle to all human activities, while accepting the primacy of RFMOs and other relevant sectoral organizations.54 48

Art. VII(2)(b) and (d) of the CAMLR Convention. For other linkages, see the Preamble and Arts III–V. 49 For instance Belgium, Brazil, Germany, India, Italy, Namibia, Sweden and the United States. 50 See Molenaar at subsection 5.2. 51 Art. 2 of the SPRFMO Convention (Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean (Auckland, 14 November 2009. In force 24 August 2012; www.sprfmo.int)). 52 See http://web.unep.org/regionalseas/. 53 This is confirmed by the Preamble and many provisions (e.g. Arts II(3), V, VI, IX and XXIX(1)). Moreover, CCAMLR has taken measures to prevent impacts by fishing vessels and scientific research vessels on Antarctic marine living resources by adopting measures relating to maritime safety, vessel-source pollution and the introduction of alien species (see, e.g. CCAMLR Conservation Measures 24-04 (2017), para. 16; 26-01 (2018); 91-03 (2009), para. 3; and 91-04 (2011), para 6; 91-05 (2016), para. 10, and CCAMLR Resolutions 20/XXII (2003), 23/XXIII (2004), 28/XXVII (2008), 29/XXVIII (2009), 33/XXX (2011) and 34/XXXI (2012)). 54 E.g. the mandate of the OSPAR Commission established under the OSPAR Convention (Convention for the Protection of the Marine Environment of the North-East Atlantic of 22 September 1992 (2345 UNTS 67, as amended, consolidated version available at www.ospar.org)) vis-à-vis fisheries and maritime transport pursuant to Art. 4 of Annex V.

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Due to the significant efforts by CCAMLR Members to implement and operationalize the CAMLR Convention’s conservation objective, its de facto EAF management, and the key role accorded to scientific research, more research is carried out in the context of CCAMLR than in any (other) RFMO. Prominent examples in this regard are the CCAMLR Ecosystem Monitoring Program— which monitors key life-history parameters of a group of ‘indicator species’ (which includes various penguin species) to detect changes in the abundance of harvested species—and the enormous amount of scientific research that has been devoted to ensuring that CCAMLR’s network of marine protected areas (MPAs) and individual MPAs are based on the best scientific evidence available. As noted in Sect. 3.3, however, EAF management and the necessary science are now part of the key functions of RFMO/As. Many RFMO/As have adjusted their formal mandates accordingly, and have broadened and intensified the necessary science and data gathering. Consequently, even though the ‘gap’ in implementation and application with CCAMLR is still considerable, it could be argued that there is no fundamental distinction on this issue with these RFMO/As. The qualification of CCAMLR was also examined in two joined cases on which the European Court of Justice (ECJ) ruled in November 2018.55 The cases were brought in 2015 and 2016 by the European Commission against the Council in response to documents relating to proposals for MPAs, which were submitted to CCAMLR by the EU and its Member States, rather than by the EU alone. At issue in these joined cases was the distribution of competence between the EU and its Member States in the areas of environmental policy and the common fisheries policy (CFP). While the EU and its Member States share competence in the area of environmental policy, the EU has exclusive competence in the area of the CFP. The Court ruled that “the exclusive or main purpose or component” of the MPA proposals and their envisaged measures “must be determined on the basis of objective factors amenable to judicial review, namely the context, content and aims pursued by the decisions at issue”.56 As part of the context, the Court acknowledged that the CAMLR Convention assigns a number of tasks to CCAMLR related to fishing, but also highlighted the CAMLR Convention’s broad objective and its distinction from a normal fisheries management agreement.57 The Court thereby focused primarily on the overall objective of the CAMLR Convention and the more specific objectives pursued by the MPA proposals. While the Court recognized that the MPA proposals pay “particular attention [. . .] to regulation of the activity of fishing vessels”, it concluded that “the very limited fishing opportunities provided for by the [MPA proposals] are justified exclusively by environmental considerations.” It is submitted that the Court thereby ignored that, even though the CAMLR Convention and CCAMLR have an objective and mandate that go well beyond that of conservation and management of fisheries resources, this objective and mandate is 55

Joined Cases C-626/15 and C-659/16, Judgement of 20 November 2018. Para. 87. 57 Paras 89–92. 56

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not exercised with respect to all human activities, but only in relation to fishing, fishing-related activities and research. The Opinion of Advocate General Kokott notes that “the planned CCAMLR rules on the establishment of various” MPAs “are by no means restricted to fisheries activities but also, for example, prohibit the discharging or dumping of waste”.58 This overlooks the long-standing and consistent practice of CCAMLR to impose such prohibitions only on fishing vessels and, occasionally, also on vessels conducting scientific research activities.59 Moreover, in support of the argument that the context of the envisaged MPAs is “not characterised solely by fisheries policy, but encompasses general environmental protection considerations”, Kokott arguably interprets Article V(2) of the CAMLR Convention too widely. This provision ensures that parties to the CAMLR Convention that are non-parties to the Antarctic Treaty are bound to measures for “the protection of the Antarctic environment from all forms of harmful human interference” adopted and in effect under that Treaty. Kokott then offers the following observations: Such interference of human origin can undoubtedly occur in areas other than fishing. The Council very rightly points to possible drilling operations to extract mineral resources. Furthermore, I think it conceivable that sooner or later the construction of wind farms could be discussed.60

While these observations aptly illustrate the broader context of the ATS in which CCAMLR is positioned, they seem to ignore the crucial point that CCAMLR would not have any competence whatsoever on these other human activities. In the end, both of the European Commission’s substantive pleas in favor of the EU’s exclusive competence were dismissed by the Court. The plea relating to the EU’s exclusive external competence based on Article 3(2) of the TFEU61 was dismissed as incompatible with international law, inter alia, because the EU does not have a fully autonomous status within CCAMLR.62 The Judgement is thereby a success for those EU Member States that participate in CCAMLR as Members alongside the EU and want to have the ability to exercise within CCAMLR their shared competence in matters that fall outside the domain of the CFP. The Judgement is also expected to have removed any remaining juridical obstacles to the Netherlands’ application for membership prior to the 38th (2019) Annual CCAMLR Meeting.63

58

Opinion of Advocate General Kokott of 31 May 2018, at para. 94. See note 53 supra. 60 Para. 95. 61 Treaty on the Functioning of the European Union (consolidated version available at http://eur-lex. europa.eu/collection/eu-law/treaties.html). 62 Judgement, at paras 128 and 130. The Court relies in this regard on Arts V(1) and (2), VII(2) (c) and XXIX(2) of the CAMLR Convention. 63 The Netherlands became an Acceding State to the CAMLR Convention in 1990. While the Netherlands intended to apply for membership in 2018 (Report of the 36th (2017) Annual CCAMLR Meeting, paras 2.4 and 12.15), its application was put on hold to await the ECJ’s 59

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While it has become very clear from the discussion so far that CCAMLR is highly unique, the question that remains is whether or not it is an RFMO. In 2002 there was broad agreement among the Members that CCAMLR has “the attributes of an RFMO within the context of the UN and its subsidiary bodies”.64 Or—in other words—CCAMLR is ‘more than an RFMO’. It is submitted that this continues to be the most persuasive qualification of CCAMLR today. As is implied above, this qualification is not so much justified by its unique objective and the key role accorded to scientific research. Rather, it is above all justified by the fact that CCAMLR is a component of the ATS,65 and thereby directly linked to the unresolved question on title to land territory south of 60 South and the associated principal objective of safeguarding peace that is enshrined in the Antarctic Treaty as well as in the CAMLR Convention.66

3.4.5

A Role-Oriented Approach to RFMO/As

According to the definition set out at the end of Sect. 3.1, RFMO/As must have a dual mandate of conservation and management (or sustainable use) of fisheries resources. This therefore excludes bodies that are only aimed at the conservation of fish species, for instance the Meeting of Signatories under the global MOU on Sharks.67 Moreover, due to fact that EAF management is at present generally accepted to be a global minimum standard, the dual mandate of RFMO/As is not confined to target species but also extends to the impacts of fishing on non-target species and the broader marine environment (e.g. vulnerable benthic habitats). The previous subsection qualified CCAMLR as ‘more than an RFMO’ on account of its integration in the ATS, whose principal role is safeguarding peace. CCAMLR can therefore be regarded as performing a role in safeguarding peace in addition to its role on conservation and management of fisheries resources. This raises the question if there are (other) RFMO/As that perform additional roles besides conservation and management of fisheries resources. The examples provided below illustrate that such a ‘role-oriented approach’ to RFMO/As is supported by the rules and practices of several RFMO/As. Moreover, in view of the considerable diversity among regional regimes that operate under the overarching framework of the international law of the sea, it is not always easy to categorize bodies as RFMO/ As, regional seas programmes or other types of regional ocean governance mechanisms.68 Looking at them through the lens of roles may therefore provide a better

Judgement in Joined Cases C-626/15 and C-659/16. The Netherlands eventually applied for membership on 9 September 2019 and became a Member on 8 October 2019. 64 Report of the 21st (2002) Annual CCAMLR Meeting at 88 (para. 15.2). 65 Report of the 14th (1995) Annual CCAMLR Meeting at 70 (para. 15.2). 66 Cf. PP 2 and Art. I of the Antarctic Treaty and PP 9 and Art. III of the CAMLR Convention. 67 Note 25 supra and accompanying text. 68 See in this regard Billé et al. (2016), who focus on regional seas programmes, RFBs, and large marine ecosystem (LME) mechanisms.

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understanding on what these mechanisms actually do. Such a role-oriented approach can also be applied to bodies like the Arctic Council or the broader ‘Arctic Council System’, whose mandates are not confined to the marine domain but also encompass land territory.69 In addition to CCAMLR, there are at least three examples of (other) RFMO/As that perform additional roles besides conservation and management of fisheries resources. The first is JNRFC, which also pursues conservation, management and related scientific research of various seal and whale species, and has set TACs for commercial harvest and/or scientific purposes of harp and hooded seals in recent years.70 At the 48th (2018) Annual JNRFC Session, Norway even raised the question whether it would be possible for Norwegian vessels to resume whaling for minke whales—in accordance with Norway’s obligations pursuant to the ICRW71—in the Russian Economic Zone. Russia noted that this would not be possible under Russian law.72 The role performed by JNRFC on the regulation of harvesting of marine mammals is facilitated by its mandate, which is related to the “living resources of the sea”.73 Interestingly, this mandate-component is essentially the same as that of CCAMLR, namely “marine living resources”. As the CAMLR Convention accords primacy to the ICRW and CCAS,74 however, it is in principle not possible for CCAMLR to regulate harvesting of marine mammals.75 The second example is GFCM, which performs several additional roles besides conservation and management of fisheries resources. Facilitated by its mandatecomponent of “living marine resources”,76 GFCM has adopted several (legally binding) Recommendations relating to the exploitation of red coral.77 Moreover, pursuant to its mandate-component of “sustainable development of aquaculture”,78 GFCM has adopted a Recommendation and several (non-legally binding) 69

See Molenaar (2012). See the 2018 Report of the Working Group on Seals and Section 6 of the Joint RussianNorwegian Scientific Research Program on Living Marine Resources in 2019, attached as Appendices 8 and 10 to the Protocol of the 48th (2018) Annual JNRFC Session. 71 Note 4 supra. 72 Protocol of the 48th (2018) Annual JNRFC Session, at section 18.1 and Appendix 8, section 5.1. 73 Framework Agreement, note 37 supra, at Art. I(1). 74 Convention for the Conservation of Antarctic Seals, London, 1 June 1972. In force 11 March 1978 (1080 UNTS 176). 75 Cf. Art. VI of the CAMLR Convention. 76 Agreement for the Establishment of a General Fisheries Council for the Mediterranean, Rome, 24 September 1949. In force 20 February 1952 (GFCM Agreement; 126 UNTS 239), as amended. Consolidated version available at http://www.fao.org/treaties/results/en/?search=adv&subj_coll= ArticleXIV. See Art. 2(2). 77 Recommendations GFCM/41/2017/5, GFCM/36/2012/1 and GFCM/35/2011/2. 78 Art. 2(2) of the GFCM Agreement. This species does not fall within the definition of ‘fish’ laid down in Art. 1(1)(c) of the Fish Stocks Agreement, which only includes molluscs and crustaceans. Note the interesting definition of ‘fishery resources’ in Art.1(1)(f) of the SPRFMO Convention (note 51 supra), which includes “other living marine resources as may be decided by the Commission”. 70

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Resolutions.79 This mandate-component has also been used to adopt ‘guidelines on sustainable Atlantic bluefin tuna farming practices in the Mediterranean’,80 which were developed by the ad hoc GFCM/ICCAT Working Group on Sustainable Bluefin Tuna Farming/Fattening Practices in the Mediterranean. These practices can be regarded as a hybrid between capture fishing and aquaculture, and are also called ‘capture-based aquaculture’. The guidelines cover, inter alia, socio-economic, environmental, data and research, and animal welfare issues. They complement the capture fisheries component that is principally regulated by ICCAT, and that is aimed at ensuring compliance with catch restrictions, and combating IUU fishing, including through various traceability measures.81 Similar to ICCAT, the Commission for the Conservation of Southern Bluefin Tuna (CCSBT) only regulates the capture fisheries component of the extensive tuna farming of Southern bluefin tuna in Australia’s maritime zones.82 The third example is NASCO, whose mandate relates to the “conservation, restoration, enhancement and rational management of salmon stocks”.83 Faced by continuously dwindling stocks, this broad mandate allowed NASCO to adopt under the overarching framework of the 1998 Agreement on Adoption of a Precautionary Approach84: the 2001 Plan of Action for the protection and restoration of Atlantic salmon habitat85; the 2003 Resolution to minimize impacts from aquaculture, introductions and transfers, and transgenics on wild salmon stocks86; and the 2004 Guidelines on the use of stock rebuilding programmes (including ‘stocking’).87

4 Dealing with Free Riders In the domain of international fisheries law, free riders benefit from the efforts undertaken by others on the conservation and management of fisheries resources by either avoiding being subject to restraints on fishing and fishing activities—in other words: avoiding applicability—or by not complying with applicable restraints. Examples are fishing in excess of a TAC or not using measures relating to by-catch 79

Recommendation GFCM/41/2017/1 and Resolutions GFCM/41/2017/1 and GFCM/41/2017/2 and GFCM/36/2012/1. 80 Decision GFCM/30/2006/1. 81 See in particular ICCAT Recommendation 06/07. 82 Resolution on the Establishment of a Record of Authorised Farms, as adopted in 2008, and amended in 2010. 83 Art. 3(2) of the Convention for the Conservation of Salmon in the North Atlantic Ocean, Reykjavik, 2 March 1982. In force 1 October 1983 (1338 UNTS 33). 84 Doc. CNL(98)46. 85 Doc. CNL(01)51. 86 Doc. CNL(06)48 (consolidated version). 87 Doc. CNL(04)55. See also Dahl (2016) and the Scoping Policy Analysis for Aquatic Genetic Resources (FAO doc. CGRFA-14/13/Inf.24; 2013), at pp. 10 and 14.

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of non-target species or impacts on vulnerable benthic habitats. Such behavior not only harms the status of target species and the broader marine environment, but also creates a competitive advantage over those that comply with costly conservation measures (no level playing-field). States can avoid applicability or fail to ensure compliance with these rules by acting in various capacities, for instance as a coastal State with regard to fishing activities in its own maritime zones; as a flag State with regard to its vessels operating on the high seas or in the maritime zones of other States; as a port State with regard to foreign vessels in its ports; as a market State with regard to imported fish; or with regard to natural and juridical persons bearing its nationality.88 Just like the well know notion of ‘flags of convenience’, it is therefore possible to speak of ‘ports of convenience’ or ‘markets of convenience’. CCAMLR, for example, experiences increasing difficulties due to trade in toothfish (Dissostichus spp.) by non-Members.89 Dealing with both forms of free riding-behavior—non-applicability and non-compliance—is complicated by the consensual nature of international law. As reflected in the fundamental principle of pacta tertiis, a State is not bound by a rule of international law unless it has in one way or another given its consent to it.90 Within RFMOs, the two forms of free riding-behavior raise different issues and require different responses. The problem of non-compliance by Members with applicable rules has so far been mainly addressed by compliance assessment schemes, which can lead to withholding benefits or imposing penalties within some limited scenarios. While dispute settlement procedures are often available, these are only rarely resorted to in practice.91 The problem of non-applicability exists in relation to Members as well as non-Members of RFMOs. An example of the former occurs when Members exercise their right to ‘opt out’ of adopted decisions to ensure that these will not become applicable to them. The constitutive instruments of the more recently established RFMOs include constraints on the use of opt-out procedures, for instance by making them subject to ad hoc review or expert panels.92 While a definition of ‘port State’ can be easily deduced from Art. 218(1) of the UNCLOS and Art. 3(1) of the PSM Agreement, this is more difficult for the definition of ‘market State’. As noted by Churchill (2019), p. 321, fn 11, the IPOA-IUU deals with port State measures in paras 52–64 and internationally agreed market-related measures in paras 65–76. However, some of the former (e.g. paras 56 and 63) are clearly trade measures. He concludes that a State “that prohibits a foreign fishing vessel from landing its catch in that State’s ports for the purpose of sale is both a port State and a market State.” 89 Report of the 37th (2018) Annual CCAMLR Meeting, at paras 3.5 and 13.10. 90 Vienna Convention on the Law of Treaties, Vienna, 23 May 1969. In force 27 January 1980 (1155 UNTS 331), Art. 34. On this topic, see Ferri (2015). 91 One famous exception are the Southern bluefin tuna cases instituted by Australia and New Zealand against Japan under the UNCLOS (see https://icsid.worldbank.org/en/Pages/about/ Southern-Bluefin-Tuna-Case%2D%2D-Australia-and-New-Zealand-v.-Japan.aspx). 92 See, inter alia, Harrison (2019), pp. 89–92, and the Report of the Second (2016) ICCAT Performance Review, pp. 55–59. So far, there have been two such review panels, both pursuant 88

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Non-applicability is, however, mainly a problem in relation to non-Members of RFMOs. The UNCLOS and the Fish Stocks Agreement pursue very different approaches to this problem. The UNCLOS does so by linking rights and jurisdiction through so-called ‘rules of reference’ to substantive fisheries standards adopted by intergovernmental bodies, thereby leading to the so-called ‘indirectly binding effect of the UNCLOS’. Rules of reference are also extensively used in Part XII of the UNCLOS in relation to the different sources of marine pollution. The mechanism of rules of reference and the indirectly binding effect of the UNCLOS arose in the South China Sea arbitration, where the Tribunal took the view that Article 94 incorporates the COLREGS into the Convention, and they are consequently binding on China. It follows that a violation of the COLREGS, as “generally accepted international regulations” concerning measures necessary to ensure maritime safety, constitutes a violation of the Convention itself.93

The rule of reference in Article 94(5) of the UNCLOS at issue in the South China Sea arbitration is, however, quite different from the rules of reference relating to fisheries laid down in Articles 61(3) and 119(1)(a). Pursuant to Article 94(5), a flag State is “required to conform to” the regulations referred to. Conversely, Articles 61 (3) and 119(1)(a) link the obligations for coastal States and high seas fishing States on the determination of the TAC and the establishment of other conservation measures to “any generally recommended international minimum standards, whether subregional, regional or global”, but significantly weaken these by the qualification “taking into account”. While the Fish Stocks Agreement incorporates the UNCLOS’s rules of reference in Articles 5(b) and 10(c), it also pursues various other approaches to the problem of non-applicability. First of all, by becoming a party to the Fish Stocks Agreement, a State consents to non-flag State high seas enforcement regardless as to whether that State is a Member of the relevant RFMO.94 Since the entry into force of the Fish Stocks Agreement, however, this approach has never been used in practice.95 Second, by becoming a party to the Fish Stocks Agreement, a State also accepts it has a duty to cooperate with RFMO/As and that this duty can only be discharged by becoming a Member or “by agreeing to apply [their] conservation and management measures”.96 RFMO/As have operationalized the latter mode of cooperation by means of the status of cooperating non-contracting party (CNCP).97 An alternative mode of cooperation is implicitly presented as well: abstaining from fishing

to the SPRFMO Convention (note 51 supra). See Permanent Court of Arbitration (PCA) Cases Nos 2013-14 and 2018-13. 93 PCA Case No. 2013-19, Award on Jurisdiction and Admissibility dated 29 October 2015, at para. 1083. 94 Art. 21. 95 See Rayfuse (2004). 96 Arts 8(3) and 17(1). 97 Some RFMOs use different terminology; see Molenaar (2019), Table 2 at pp. 116–118.

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altogether. As parties to the Fish Stocks Agreement accept that only Members and CNCPs have fisheries access,98 abstention is in fact mandatory for flag States that are not Members or CNCPs, and could be seen as the default mode while awaiting a successful application for membership or CNCP status. The recognition that RFMO/As are the preeminent vehicles for regional fisheries regulation that is implied in these obligations, give RFMO/As a clear mandate to deal with free rider-behavior by non-Members and non-CNCPs. While such a mandate is strictly speaking only available vis-à-vis parties to the Fish Stocks Agreement, RFMO/As have not taken this into account in their actions so far. It is submitted that this is not necessarily based on the position that the relevant provisions in the Fish Stocks Agreement have become part of customary international law or are opposable to non-parties on some other ground. Instead, it is above all based on the fact that most of these actions are primarily aimed at vessels rather than States, and are, in the domain of international fisheries law, regarded as withholding benefits rather than constraining rights. Examples of actions by RFMO/As primarily aimed at States are trade measures, for instance import restrictions, trade documentation/identification schemes and catch documentation schemes.99 As regards actions primarily aimed at vessels, many RFMO/As treat fishing for regulated species in their regulatory areas by vessels not flying the flag of a Member or a CNCP as IUU fishing due to the fact that it undermines the effectiveness of those RFMO/As. Upon the inclusion of such vessels in IUU Vessel Lists, Members and CNCPs will be required to withhold a large number of benefits vis-à-vis listed vessels, including fishing licenses, transshipment, landing catch, access to port more in general, and chartering.100 From the perspective of international trade law, however, several of these actions aimed at vessels—for instance prohibitions on landing and transhipment—are regarded as constraining rights held by the flag States of these vessels. Such actions can nevertheless be consistent with international trade law if they are justified by one or more of the general exceptions laid down in Article XX of the 1947 General Agreement on Tariffs and Trade; in particular paragraph (g) “relating to the conservation of exhaustible natural resources”. While there have been a few instances where unilateral actions by States and the EU have been challenged under the World Trade Organization (WTO)’s Dispute Settlement Understanding,101 so far there have not been any challenges against actions aimed at States or vessels that have

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Arts 8(4) and 17(2). See Marel (2019), pp. 303–306. 100 See, for instance, CCAMLR Conservation Measure 10-07 (2016), at para. 22. See also Marel (2019), p. 302. 101 These are the Swordfish case between the then European Community and Chile (WTO Dispute No. DS193), and the Atlanto-Scandian herring case between Denmark (in respect of the Faroe Islands) and the EU (WTO Dispute No. DS469). For a discussion, see Churchill (2019), pp. 340–341, and Serdy (2016), pp. 432–438. 99

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originated from RFMO/As.102 The mandate of RFMO/As to deal with free riderbehavior by non-Members and non-CNCPs—whether or not they are parties to the Fish Stocks Agreement—has therefore not been challenged in the context of dispute settlement proceedings under international trade law or international fisheries law so far. Were such a challenge to arise in the future, it is highly likely that it would be linked to the issues of allocation and participation discussed in the next section. Some further approaches to dealing with free rider-behavior are included in the PSM Agreement. Much of the PSM Agreement relates to denying IUU fishing vessels entry and use of port, and builds on Article 23 of the Fish Stocks Agreement. In addition, the PSM Agreement also acknowledges the right of port States to impose enforcement measures that are more onerous (stringent) than denial of entry and use of port. Examples of such more onerous enforcement measures are monetary penalties and confiscation of catch. Consistency with the principle of pacta tertiis can for such more onerous enforcement measures be ensured through flag State consent (upon the initiative of the flag State or upon request by the port State), a decision of an RFMO/A, or some other ground of international law103; for instance a port State’s residual jurisdiction derived from its territorial sovereignty. As regards decisions by RFMO/As, the limited practice that exists so far all relates to exceptional circumstances, and it is unclear if and to what extent port States have actually made use of the enabling provisions in the PSM Agreement.104 Furthermore, the first sentence of Article 20(3) of the PSM Agreement requires parties to encourage their vessels to “use ports of States that are acting in accordance with, or in a manner consistent with this Agreement”. The second sentence encourages parties “to develop, including through [RFMO/As] and FAO, fair, transparent and non-discriminatory procedures for identifying any State that may not be acting in accordance with, or in a manner consistent with, this Agreement.” While there does not seem to be any practice within RFMO/As on the ‘negative identificationapproach’ reflected in the second sentence of Article 20(3), various RFMO/As have developed practices modeled on the ‘positive identification-approach’ reflected in the first sentence.105 Some RFMO/As explicitly stipulate that only ports of Members or CNCPs can be used.106 Others prohibit Members and CNCPs from using ports that have not been designated in accordance with applicable procedures. However, as these procedures entitle only Members and CNCPs to designate ports, this means that ports by non-Members and non-CNCPs cannot be used.107 102

See Churchill (2019), who also notes at p. 337 that as RFMO/As are not Members of the WTO, the challenges must be directed at Members or CNPCs implementing actions by RFMO/As. See also Ferri (2015), at Ch 5, and the text accompanying note 118 infra. 103 Arts 4(1)(b) and 18(3). 104 See the practice by CCAMLR, ICCAT, NAFO and NEAFC examined by Honniball (2018), subsection 5.3.5. 105 See Honniball (2018), subsection 5.3.1.2. 106 E.g. ICCAT Recommendation 18-02, para. 71. 107 See, e.g. NAFO Conservation and Enforcement Measures 2019, Arts 38(1)(p)(i) and 43(1); and NEAFC Scheme of Enforcement 2019, Arts 21 and 29(f).

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5 Safeguarding the Founding Fathers’ Interests The constitutive instruments of RFMO/As and their subsequent practices contain several mechanisms aimed at safeguarding interests of the original group of States that initiated the negotiation of the establishment of these RFMO/As. Such States are in this section called ‘Founding Fathers’. Constitutive instruments sometimes refer to them as ‘(original) signatory States’. The most paramount Founding Fathers’ interest is to become a party to the constitutive instruments and thereby participate in the RFMO, MOP or COP established thereunder. This safeguards their ability to participate in decisionmaking and thereby influence the substance of individual decisions, as well as the subsequent evolution of the RFMO/As and their constitutive instruments in line with the Founding Fathers’ more specific interests. The participatory interests of Founding Fathers are safeguarded by granting them a right to become party that is neither time bound nor subject to an approval role of the existing Members.108 The more specific interests of Founding Fathers mentioned above are often utilization-oriented or conservation-oriented. Such utilization-oriented interests are, inter alia, reflected in rules and practices of RFMO/As on the allocation of fishing opportunities that rely predominantly on historical catch rather than on other allocation criteria, such as zonal attachment, a State’s dependency on fishing, or its status as a developing State. Rules and practices can also give preferential treatment to existing Members and CNCPs, for instance by implicitly acknowledging their ‘vested rights’. A well-known example in this regard is NAFO Resolution 1/99 ‘to Guide the Expectations of Future New Members with regard to Fishing Opportunities in the NAFO Regulatory Area’,109 which stipulates that new members should be aware that presently and for the foreseeable future, stocks managed by NAFO are fully allocated, and fishing opportunities for new members are likely to be limited.

A similar approach was embraced by NEAFC in 2003.110 While some other RFMO/As have adopted somewhat more accommodating approaches,111 it is evident that existing Members will always be reluctant to accept quota-cuts to make room for new entrants. Another way in which Founding Fathers are able to protect their utilizationoriented interests is through the formal rules on eligibility requirements and criteria, and the procedures on participation laid down in the constitutive instruments of RFMO/As. While some of these are very ‘open’ (e.g. ICCAT and SPRFMO), a 108

See, e.g., Art. 10(1) of the CAOF Agreement, and Art. 37(1) of the SPRFMO Convention, note 51 supra. See also Molenaar, p. 119. 109 GC Doc. 99/9, Annex 13. 110 Report of the 22nd (2003) Annual NEAFC Meeting, at p. 27. The ‘Guidelines for the expectation of future new Contracting Parties with regard to fishing opportunities in the NEAFC Regulatory Area’ are available at http://www.neafc.org/becomingacp. 111 See, e.g. NPFC Conservation and Management Measure 2019-07 ‘for Chub mackerel’, para. 4.

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considerable number are comparatively ‘closed’ due to the ‘approval role’ of the existing Members on applications for membership. Some of the constitutive instruments of the latter group even fail to provide non-Founding Fathers with a right to accede, and give existing Members a right to ‘invite to accede by consensus’. This enables any Founding Father to veto a favorable response in case a non-Founding Father submits a request to be invited to accede. As the two newest RFMO/As— NPFC and the CAOF Agreement112—are part of this latter group, there is certainly no indication of a trend towards openness. The practice by RFMO/As on this approval role so far has been very divergent, with for instance CCAMLR having rejected only one of many applications, and WCPFC having rejected all applications except one.113 A majority of the RFMO/As listed in Table 5.1 above have one or more participatory categories other than membership (e.g. CNCP status).114 For some of the most closed RFMO/As (e.g. NEAFC and WCPFC), this alternative participatory category provides some fishing opportunities and—often more importantly—the ability to engage in fishing-related activities. Whereas the eligibility criteria can be assumed to be quite inclusive, applicants are required to comply with a considerable number of conditions and are often expected to make a ‘voluntary’ financial contribution.115 A significant disadvantage of cooperative status—from the perspective of status holders—is the considerable lack of stability and predictability that ensues from the RFMO/A’s competence to revoke or to not renew this status on an annual or biannual basis. While the exercise of this competence is legitimate and understandable where a status holder does not comply with the conditions attached to its status, there is always a risk of abuse of competence.116 It is clear that preferential treatment accorded to Founding Fathers through rules and practices on allocation and participation poses a significant obstacle to States that want to fish in the regulatory areas of RFMO/As of which they are not Members or CNCPs, but are at the same time confronted with a generally accepted mandate of RFMO/As to deal with free riders and IUU fishing, and may be bound by obligations under the Fish Stocks Agreement vis-à-vis such RFMO/As (see Sect. 4). While there have been some dispute settlement proceedings on allocation117—albeit none brought by non-Members—there have not been any in relation to participation so

112

See Art. 24(2) of the NPFC Convention (Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean, Tokyo, 24 February 2012. In force 19 July 2015; text available at www.npfc.int); and Art. 10(2) of the CAOF Agreement. 113 See Molenaar (2019), pp. 122–123. 114 Id., pp. 116–118. 115 E.g. WCPFC Conservation and Management Measure 2009-11 ‘Cooperating Non-Members’. 116 E.g. the difficulties experienced by Vietnam in renewal of CNM status by WCPFC in 2012–2015 due to the construction of large-scale tuna fishing vessels in Vietnam (e.g. Report of the 12th (2015) Annual WCPFC Session at paras 65–66). 117 Namely the Southern bluefin tuna cases, note 91 supra, the Atlanto-Scandian herring cases, note 101 supra and PCA Case 2013-30, and the review panels under the SPRFMO Convention, note 92 supra (PCA Cases Nos 2013-14 and 2018-13).

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far. Such proceedings would revolve in particular around the rights to engage in fishing and fishing-related activities on the high seas pursuant to Articles 87(1) (a) and 116 of the UNCLOS, and the right of States with a ‘real interest’ to participate in RFMO/As pursuant to Article 8(3) of the Fish Stocks Agreement, where applicable. This would likely be complemented by the argument that the relevant obligations to cooperate in relation to transboundary fish stocks apply between, on the one hand, Members and CNCPs and, on the other hand, non-Members and non-CNCPs. Or, in other words: cooperation cannot be a one-way street. The absence of cases on participation in RFMO/As can in part also be explained by the fact that existing dispute settlement procedures in the domain of international fisheries law are insufficiently tailored to the scenario at hand. For one thing, non-Members of RFMO/As do not have access to the dispute settlement procedures included in the constitutive instruments of such RFMO/As. Non-Members that are parties to the UNCLOS and/or the Fish Stocks Agreement would nevertheless have access to the dispute settlement procedures included in these treaties. As such procedures do not allow proceedings to be instituted against RFMOs,118 however, the claimant could be compelled to bring separate proceedings against all Members of the RFMO/A that are also parties to the UNCLOS and/or the Fish Stocks Agreement.119 The court or tribunal—assuming not more than one court or tribunal would be involved—could then decide to join these cases. The procedural complexities that would arise are clearly quite overwhelming, and would be very timeconsuming and costly. As noted above, the more specific interests of Founding Fathers can also be more conservation-oriented. Accepting applications for membership with more utilization-oriented States may therefore lead a body towards a less conservationoriented evolution. Decision-making procedures can be a critical factor in such circumstances. It is submitted that China’s accession to the CAMLR Convention in 2006, and the subsequent approval of its application for CCAMLR membership in 2007,120 are a case in point. Since then, China has gradually become more assertive in exercising its explicit right to block consensus and its implicit right to interpret the provisions of the CAMLR Convention.121 While the latter is a prerogative of every sovereign State, China may take the view that it is particularly entitled to exercise this right on account of its non-participation in the negotiation of the CAMLR Convention, as this occurred between 1977 and 1980, during a period in which 118

See also note 102 supra. There are some precedents for simultaneously bringing multiple cases that are (largely) identical, for example the cases brought by Yugoslavia—which was succeeded by Serbia and Montenegro during the course of the proceedings—against Belgium, Canada, France, Germany, Italy, Netherlands, Portugal, Spain, United Kingdom and United States before the International Court of Justice (Information available at https://www.icj-cij.org/en/case/105). 120 Report of the 26th (2007) Annual CCAMLR Meeting, at para. 2.3. 121 In particular the objective of the CAMLR Convention laid down in its Art. II, among other things in light of CCAMLR’s actions on MPAs. 119

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China was temporarily unable to perform its long-standing historic role as one of the main global powers; if not the main. China may also have similar arguments in relation to the international law of the sea more in general, or even international law as such. Such arguments bear some similarity with the arguments advanced by newly independent States during and after the post-World War II process of decolonization. These States did not accept the then existing international law of the sea as laid down in the 1958 Geneva Conventions for the reason that they were not involved in their negotiation. This proved to be an important driver for the commencement of the negotiations on the UNCLOS. The current situation with China is nevertheless very different. As a formal re-negotiation of the UNCLOS is at present simply not considered by the international community, China appears to pursue a strategy of optimizing its prerogative to interpret international law, which is in certain cases stretched to such an extent that it amounts to de facto re-interpretation.122 The opposite of what appears to be happening with China and CCAMLR can occur as well. The best known example is IWC, which is admittedly not an RFMO/ A. Due to the deteriorating status of many whale species and stocks, IWC membership started to expand with conservation-oriented States in the late 1970s until the required ¾ majority for adopting a non-time bound moratorium on commercial whaling crystallized in 1982. This rapid expansion in membership was facilitated by the absence in the ICRW of any formal rules on eligibility requirements and criteria, and procedures on accession.123 This also explains why the constitutive instrument of the North Atlantic Marine Mammal Commission (NAMMCO)124— which was adopted within a few months after Iceland notified its withdrawal from the ICRW in 1991—stipulates that other States can accede “with the consent” of the Founding Fathers.125 Reference should in this context be made to Japan’s recent notification of withdrawal from the ICRW—effective on 30 June 2019126—and its intention to subsequently resume commercial whaling in its own maritime zones.127 Many States

122

Cf., e.g., Rühlig (2018). See also the Final Report (2018) of the International Law Association (ILA) Committee on Baselines under the International Law of the Sea (available at http://www.ilahq.org ), at footnotes 246 and 264, and p. 33 by which Committee member Yee takes the view that “the regime of continental States’ outlying archipelagos as units is already established under customary international law” referring in this regard to the study by the Chinese Society of International Law “The South China Sea Arbitration Awards: A Critical Study” (2018) 17 Chinese Journal of International Law 207, 475–552. 123 Art. X(2) of the ICRW, note 4 supra. 124 Agreement on Cooperation in Research, Conservation and Management of Marine Mammals in the North Atlantic, Nuuk, 9 April 1992. In force 8 July 1992 (1945 UNTS 3). 125 Art. 10(2). 126 Information available at https://iwc.int/statement-on-government-of-japan-withdrawal-from-t. For a discussion, see Guggisberg (2019). 127 See the Statement by the Chief Secretary of the Cabinet of the Prime Minister of Japan, available at https://japan.kantei.go.jp/98_abe/decisions/2018/_00008.html.

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and non-governmental organizations have strongly criticized Japan’s decision, just like many criticized earlier decisions by Norway and Iceland to resume commercial whaling pursuant to their objections to the moratorium. It is submitted that the interests pursued by Iceland, Japan and Norway are not merely utilization-oriented but are also grounded in what they regard as a fundamental right of every sovereign State to harvest the living resource of its choice, provided this is consistent with its obligations under international law.

6 Conclusions Since the first RFMO avant la lettre was established almost a century ago, there has been a remarkable growth and evolution in the number of, and diversity among RFMO/As. Distinctions between RFMO/As can relate to many issues, including institutional status and setting, species and geographical coverage, and membership. Their key functions have evolved in many ways as well, for instance from focusing predominantly on target species towards an ecosystem approach to fisheries management, and by developing an increasingly sophisticated and technology-driven suite of monitoring, control and surveillance measures. Whether or not a body qualifies as an RFMO or an RFMA determines the applicability of particular rights and obligations under international fisheries law. These rights can be relevant for participants as well as non-participants. Especially relevant for non-participants is the right to fish on the high seas and the right of States with a ‘real interest’ to participate in RFMO/As. Relevant rights for participants include the mandate to deal with non-participants that undermine the efforts of RFMO/As due to their behavior as free riders. The issue of qualification as an RFMO or an RFMA has so far arisen in three cases: JNRFC, the CAOF Agreement and CCAMLR. The analysis concludes that the former two qualify as RFMAs and the latter as ‘more than an RFMO’. It is submitted that qualifying CCAMLR as ‘more than an RFMO’ is not so much justified by its unique objective or the key role accorded to scientific research, but above all by its integration in the ATS, whose principal role is safeguarding peace. CCAMLR can therefore be regarded as performing a role in safeguarding peace in addition to its role on the conservation and management of fisheries resources. This gave rise to the proposition that RFMO/As can perform additional roles besides conservation and management of fisheries resources. This ‘role-oriented approach to RFMO/As’ is supported by the rules and practices of several (other) RFMO/As, namely GFCM, JNRFC and NASCO. Such a role-oriented approach can also be applied more broadly to regional ocean governance mechanisms that operate under the overarching framework of the international law of the sea. In light of the considerable diversity among such existing mechanisms, looking at them through the lens of roles can provide a better understanding on what they actually do. The international community’s recognition that RFMO/As are the preeminent institutions of international fisheries law was first reflected in the Fish Stocks

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Agreement and, more recently, in the PSM Agreement. RFMO/As have made extensive use of their associated mandate to deal with free rider-behavior by non-Members, whether or not they are parties to the Fish Stocks Agreement. So far, this mandate has not been challenged in the context of dispute settlement proceedings under international trade law or international fisheries law. Were such a challenge to arise in the future, however, it could well be linked to preferential treatment accorded to Founding Fathers through rules and practices on allocation and participation.

References Barnes JN (1982) The emerging convention on the conservation of Antarctic Marine living resources: an attempt to meet the new realities of resource exploitation in the Southern Ocean. In: Charney JI (ed) The new nationalism and the use of common spaces. Osmun Publishers, Allanheld, pp 239–286 Billé R, Chabason L, Drankier P, Molenaar EJ, Rochette J (2016) Regional Oceans Governance. Making Regional Seas Programmes, Regional Fishery Bodies and Large Marine Ecosystem Mechanisms Work Better Together. UNEP Regional Seas Reports and Studies No. 197; available at RSRS Churchill R (2019) International trade law aspects of measures to combat IUU and unsustainable fishing. In: Caddell R, Molenaar EJ (eds) Strengthening international fisheries law in an era of changing oceans. Hart, London, pp 319–349 Dahl I (2016) Regional approaches to aquaculture and a case study of the North Atlantic Salmon Conservation Organization. In: Bankes N, Dahl I, VanderZwaag DL (eds) Aquaculture law and policy. Global, regional and national perspectives. Edward Elgar, pp 103–129 Ferri N (2015) Conflicts over the conservation of marine living resources. Third states, governance, fragmentation and other recurring issues in international law. G. Giappichelli Editore, Torino Guggisberg S (2019) Legal Considerations Around Japan’s Announcement That it Will Leave the International Whaling Commission (IWC). Blogpost of 5 February 2019, Available at https:// nereusprogram.org/work-category/blog/ Harrison J (2019) Key challenges relating to the governance of regional fisheries. In: Caddell R, Molenaar EJ (eds) Strengthening international fisheries law in an era of changing oceans. Hart, London, pp 79–102 Honniball A (2018) Extraterritorial port state measures: the basis and limits of unilateral port state jurisdiction to combat illegal, unreported and unregulated fishing. Unpublished PhD manuscript, Utrecht University, School of Law Molenaar EJ (2005) Addressing regulatory gaps in high seas fisheries. Int J Mar Coast Law 20:533–570 Molenaar EJ (2012) Current and prospective roles of the arctic council system within the context of the law of the sea. Int J Mar Coast Law 27:553–595 Molenaar EJ (2016) International regulation of central Arctic Ocean fisheries. In: Nordquist MH, Moore JN, Long R (eds) Challenges of the changing Arctic. Continental shelf, navigation, and fisheries. Brill/Nijhoff, pp 429–463 Molenaar EJ (2019) Participation in regional fisheries management organizations. In: Caddell R, Molenaar EJ (eds) Strengthening international fisheries law in an era of changing oceans. Hart, London, pp 103–129 Molenaar EJ (2020) The CAOF agreement. Key issues of international fisheries law. In: Heidar T (ed) New knowledge and changing circumstances in the law of the sea. Brill (forthcoming)

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Rayfuse RG (2004) Non-flag state enforcement in high seas fisheries. Martinus Nijhoff Publishers, Leiden Rayfuse RG (2015) Regional fisheries management organizations. In: Rothwell DR, Oude Elferink AG, Scott KN, Stephens T (eds) The Oxford handbook of the law of the sea. Oxford University Press, Oxford, pp 439–462 Rühlig T (2018) How China approaches international law: implications for Europe. Available at http://www.eias.org/wp-content/uploads/2016/03/EU_Asia_at_a_Glance_Ruhlig_ 2018_China_International_Law.pdf Schatz V, Proelss A, Liu N (2019) The 2018 agreement to prevent unregulated high seas fisheries in the central Arctic Ocean: a critical analysis. Int J Mar Coast Law 34:1–50 Serdy A (2015) The new entrants problem in international fisheries law. Cambridge University Press, Cambridge Serdy A (2016) The shaky foundations of the FAO port state measures agreement: how watertight is the legal seal against access for foreign fishing vessels? Int J Mar Coast Law 31:422–441 Takei Y (2013) Filling regulatory gaps in high seas fisheries. Brill, Leiden van der Marel ER (2019) Problems and progress in combating IUU fishing. In: Caddell R, Molenaar EJ (eds) Strengthening international fisheries law in an era of changing oceans. Hart, London, pp 291–318

Erik J. Molenaar Deputy Director of the Netherlands Institute for the Law of the Sea (NILOS), associate of the Utrecht Centre for Water, Oceans and Sustainability Law (UCWOSL), at Utrecht University, and Professor at the Norwegian Centre for the Law of the Sea (NCLOS), UiT The Arctic University of Norway. Molenaar’s expertise lies with the international law of the sea—with a special focus on international fisheries law—and the international law relating to the Arctic and the Antarctic. He participates regularly in various diplomatic meetings (including meetings of RFMOs) and has been involved in international litigation.

Chapter 6

Considerations on Some Global Institutional Challenges Within the Context of the Conservation and Management of Marine Living Resources Fernando Correia Cardoso

Abstract This chapter highlights relevant aspects of some of the challenges that the international community has recently dealt with and which will continue to have to be present in the coming years within the context of the conservation and management of marine living resources, in particular in the field of fisheries. The following governance related topics are the subject matter of analysis: the interplay between instruments of a binding nature and instruments of ‘soft law’; the role of important instruments that implement UNCLOS or which have been adopted to enable State practise to be in conformity with the general frameworks; the fragmentation of international law; the questions raised by the establishment of MPAs. A specific reference is made to the UN Conference on the instrument on the conservation and management of marine biodiversity in areas beyond national jurisdiction and to some specific issues related with this conference, namely the problematic raised by the taking into consideration, in the negotiation of this instrument, of the genetic marine resources. The chapter further contains an analysis of the importance of international organizations in the conservation and management of fisheries resources and of its relationship with other bodies responsible for the preservation of the marine environment. Finally, the text refers to the action of ITLOS, in particular in what concerns the application, in its jurisprudence, of a wide notion of conservation of marine living resources.

F. C. Cardoso (*) European Commission, Directorate-General for Maritime Affairs and Fisheries (1986–2018), Brussels, Belgium © Springer Nature Switzerland AG 2020 M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea, https://doi.org/10.1007/978-3-030-42671-2_6

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1 Introduction In recent years, the international community has been confronted with a number of significant challenges within the context of conserving and managing marine living resources. The present text identifies some of these challenges and provides an analysis of the background to the situation. It is widely recognized that the exploitation of marine living resources plays an important role in the present system of ocean governance. We can recall, in this regard, relevant provisions of UNCLOS.1 Attention will be drawn, in particular, to the institutional frameworks that can have significant implications in the fisheries sector. In fact, this sector provides a very interesting example of the interplay between environmental issues, the processes of socio-economic development and the need to ensure global food security.2

2 Governance: Some Specific Issues (and Challenges. . .) From the outset, one should take into account the current trends in international law (of both binding instruments and instruments of ‘soft law’) that can influence decisions relating to the sector. Firstly, we can mention the UN Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea relating to the Conservation and Management of Straddling Stocks and Highly Migratory Stocks.3 This agreement establishes some fundamental principles in the domain: ensuring long-term conservation and the sustainable use of these stocks; improvement of inter-state cooperation for this purpose; responsible fishing; the preservation of bio-diversity; recognition of special requirements for developing countries in relation to the conservation and management of these stocks and the development of fisheries for such stocks. One of the interesting challenges that can be identified regarding the application of this Agreement is the compatibility of conservation and management measures. Under the relevant provision,4 measures established for the high seas and those adopted for areas under national jurisdiction shall be compatible, implying that States that operate on the high seas and coastal States have the explicit duty of cooperation in order to adopt measures applicable to the stocks that form the subject matter of the Agreement. One should note that, when defining such measures, a certain ‘intra-compatibility’ is foreseen, since the measures adopted under Article 7 (2), (a) to (c), of the Agreement, must take into account the nature of measures taken by coastal States. In fact, these provisions safeguard the measures previously adopted, agreed and applied in respect of the resources existing 1

Cf. Arts 61 to 73 and 116 to 120, UNCLOS. On the importance of the sector, Cf. Churchill (2014), pp. 23–52; Ariadno (2018), pp. 50–65. 3 Entered into force on 11 December 2011. For a general analysis, Cf. Hey (1989). 4 Art. 7 of the Agreement. 2

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in areas under national jurisdiction, on the high seas or as part of the competent regional fisheries management organizations. The FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas5 also raises interesting issues regarding a possible ‘tension’ between international measures and measures adopted at national level. In fact, on the one hand, the Agreement recognizes the interests of all States in developing their fishing sectors in accordance with their national policies,6 whilst on the other hand stipulating that each party shall take the necessary measures to ensure that fishing vessels do not engage in any activity that undermines the effectiveness of international conservation and management measures.7 Since the Agreement gives prominence to the conservation and management measures adopted at international level,8 whilst not providing a clear definition, it follows that a ‘necessary’ compatibility must be achieved between national measures and those adopted at supranational level, thus obliging State practice to produce norms in conformity with the established body of international rules.9 The FAO Code of Conduct for Responsible Fisheries10 is also a relevant instrument here. A doctrinal controversy persists as to the nature of the instruments of ‘soft law’ (its non-binding nature; production of a specific kind of ‘norms’; instruments designed to influence State practice or real rules). The Code is clearly a ‘soft law’ instrument designed to be voluntarily applicable on a global basis. Following the approval of the Code, an effort was made for guidelines to be adopted which, in our view, constitute a mix of concepts of a technical nature and guidance intended to be taken into consideration by the national administrations. In the latter case, one could refer to the recommendations on management processes for the institutional role played by the various actors in the sector. The general framework provided by the Code has to find an adequate, but permanent, response in the legal system of the States for its requirements to be met, namely regarding the instruments for control of catches, which are of the utmost importance in any conservation policy. This is of relevance in spaces under national jurisdiction as well as in areas beyond national

5

Approved on 24 November 1993 by Resolution 15/93 of the Twenty-Seventh Session of the FAO Conference. Entered into force on 24 April 2003. 6 Cf. the Preamble of the Agreement. 7 Cf., inter alia, Art. III, 1 (a) and Art. V, 1 and 2 of the Agreement. 8 The definition provided by Art. I (b) of the Agreement is the following: “‘international conservation and management measures’ means measures to conserve and manage one or more species of living marine resources that are adopted and applied in accordance with the relevant rules of international law as reflected in the 1982 United Nations Convention on the Law of the Sea (. . .).” 9 Another important instrument, in this context, is the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (approved by the FAO Conference at its Thirty-sixth Session in 2009. Entered into force on 5 June 2016). For the aspects related with the national space, Cf. Tsamenyi and Hanich (2013), pp. 109–119. 10 Adopted through Resolution 4/95 by the FAO Conference on 31 October 1995. For a general analysis, Cf. Cardoso (2000), pp. 227–240; Courtil (2009), pp. 87–97; Treves (2014), pp. 301–307.

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jurisdiction. As a consequence, the contents of the Code must articulate coherently with the rights and duties set out in the relevant provisions of UNCLOS (Articles 61 to 64, 66 and 116 to 120). Furthermore, Articles 6 (6.12) and 7 (7.1.3) of the Code provide clear guidance in this sense, when establishing that States must cooperate through international organizations and implement responsible practices, taking into account the need to adopt measures applicable to marine resources in all geographical areas where they are present and that such measures must be compatible within the limits of national jurisdiction and beyond. Article 6 of the Code underlines the importance of international cooperation in the case of transboundary and straddling stocks, through the appropriate organizations or the approval of international agreements or arrangements. However, adequate responses to these issues depend largely on technical capacity, the available legal frameworks and the general nature of the fishing sector in coastal States. In fact, one has to recognize that the adoption of such measures shows the prominence of State practice despite the action of international organizations in this context.11 We assume that the effective application of the Code depends on action that must take place at two levels: firstly, active participation in international organizations and multilateral negotiations designed to adopt and implement general legal frameworks and, secondly, the adoption of adequate national measures. In future years, one might expect to see developments in some of the binding instruments or ‘soft law’, but this will mainly be the result of State action and formal international organizations, which are the privileged actors of UNCLOS. In any event, it is foreseeable that growing importance will be given to instruments of voluntary application. Here it is worth highlighting some aspects of the document issued by the United Nations Conference on Sustainable Development (Rio+20).12 The formal document of the conference appeals for integrated and sustainable management of our natural resources and ecosystems in order to ensure the viability of fisheries and aquaculture, which in turn imply strengthened food security, improved living conditions for less fortunate populations and sustainable economic development. In this context, the document refers to two fundamental topics: governance and international cooperation. Governance should take place within a multilaterally efficient and reinforced system, whilst cooperation should be assured by an intergovernmental mechanism. Since the document gives prominence to UNCLOS as the starting point for action, the question arises regarding the most adequate instruments for interventions designed to tackle issues requiring specific responses (e.g. the acidification of the oceans, rising sea levels, coastal erosion, access to markets for Small Island States and coral protection). The main challenges here are, on the one hand, the choice of means available to the ‘international community’ (since there is no clear definition of the criteria that should govern such choice) and, on the other hand, the compatibility of such desiderata with the

11

Cf. Fleischer (1985), pp. 910–911. Document ‘The Future We Want’ (Document A/CONF.216/L.1.). Cf. the Chapter ‘Oceans and seas’. 12

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contribution of other actors, namely non-governmental organizations.13 In any event, the framework provided by UNCLOS allows for the possibility of adopting a wide range of multilateral instruments or joint action.14 Furthermore, Part XII explicitly safeguards that its provisions apply in the context of applying existing instruments adopted in the area of protecting and preserving the marine environment.15 As we have seen above, the legislator and decision instances have to face different aspects regarding the exploitation of living resources within the context of fragmentation of international law.16 In fact, multiple instruments deal with several closelyrelated issues here: the targeted protection of certain species; activities on the high seas; safeguarding biological diversity; exploitation of the deep sea; protected areas; rules on international trade, security of navigation and the social dimension. The differences registered in State practice and in the efficiency of international cooperation mechanisms should also be taken into account. The challenge is to address these issues in a way that ensures the potential coherence of the adopted instruments with a suitable level of cooperation. In our view, this is the path to be taken in the foreseeable absence of a competent global body for the management of marine living resources. In any case, UNCLOS offers a framework of institutional stability regarding the central issues mentioned above, namely the rights and duties of States regarding the different maritime spaces, international cooperation and dispute settlement mechanisms. Within this context, other issues deserve our attention too. Taking into account the commitments of the international community, we should mention the role of MPAs. Although there is no formal definition in international law, it is widely recognized that MPAs are spaces to which special protection is conferred, based on a number of parameters but preferably relating to preservation of the ecosystems. Nevertheless, some efforts have been deployed in the sense of achieving a definition. It is worth referring to the definitions tendered by IUCN in 1988 (“Any area of intertidal or subtidal terrain, together with its overlaying waters, and associated flora, fauna, historical and cultural features, which has been reserved by law or other effective means to protect part or all of the enclosed environment”) and by the United Nations Convention on the Biological Diversity17 (“‘Marine and Coastal Protected Area’ means any confined within or adjacent to the marine environment (. . .) which has been reserved by legislation or other effective means, including custom, with the effect that its marine and/or coastal biodiversity enjoys a higher level of protection than its surroundings”). Some international instruments explicitly foresee the establishment of these areas. Within the framework of the Convention for

13

Cf. point 53 of the document. Cf. Arts 51, 61, 63, 64, 94, 118, 194, 242, 266, 273 and 278, UNCLOS. 15 Art. 237, UNCLOS. 16 For interesting general views, Cf. Tladi (2011), pp. 223–230; Ferri (2015). 17 Adopted in Rio de Janeiro on 20 May 1992. Cf. Arts 8 and 22(2) of the Convention. 14

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the Protection of the Marine Environment of the North-East Atlantic,18 a recommendation19 also contains a definition: “‘marine protected area’ means an area within the maritime area for which protective, conservation, restorative or precautionary measures consistent with international law have been instituted for the purpose of protecting and conserving species, habitats, ecosystems or ecological processes of the marine environment”. The elements which are worth highlighting, taking into account these definitions, are the legal mechanisms based on the establishment of these areas and their conformity with international law.20 The establishment and implementation of these areas, either in spaces under national jurisdiction or beyond, is generally accepted and promoted. In this context, it is also recognized that the activities of conservation and exploitation must be compatible with the regime of UNCLOS applicable to such spaces, and that these activities must respect the precautionary principle, the ecosystem approach and the environmental impact.21 In all cases, one should accept that some elements play a key role, namely the need to ensure a solid scientific basis; establishing efficient systems of control and surveillance of the activities developed in these areas and of the restrictions that can take place therein and the socio-economic implications, in particular those arising from ‘no take’ areas. Against this background, we should highlight elements that deserve present and future consideration. Firstly, MPAs are an instrument, among others, designed to manage marine resources and so efforts must be made in the sense of the combined use of existing mechanisms. The establishment of these areas should also take place by way of instruments of a binding nature or ensuring effective implementation. Secondly, we should mention the probable interference of conventional regimes adopted in areas beyond national jurisdiction, where the appropriate regional organizations play a role of regulation and enforcement, with the rights and freedoms enjoyed by third States. In any event, if one takes into account the pertinent provisions of UNCLOS,22 one should conclude that the legal frameworks instituting these areas must, in all cases, be deemed compatible with such provisions. In order to ensure such conformity, it is important to avoid, at internal level, the overlapping of potentially conflictual legislation and to render maximum clarity to the relevant normative frameworks. The United Nations Conference on the instrument on the conservation and management of marine biodiversity in areas beyond national jurisdiction23 will have to deal with four items relevant to the exploitation of living marine resources: 18

The Convention entered into force on 25 March 1998. Recommendation 2003/3 on a Network of Marine Protected Areas. 20 Cf., in general, Bailey (1996), pp. 544–579; Cochrane (2007), pp. 701–737; Tanaka (2008), pp. 161–206; Scott (2013), pp. 175–183. 21 Cf. the Document of the United Nations General Assembly A/61/65 of 20 March 2006. 22 Arts 62 (4) (c), 117 and 192, UNCLOS. 23 Resolution 72/249 of 24 December 2017 of the United Nations General Assembly on the international legally binding instrument under the UNCLOS on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction. Cf. also Resolution 69/292 of 6 July 2015. 19

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marine protected areas; access to genetic marine resources and repartition of these resources; the impact of certain infrastructures in the marine environment; capacity building and transfer of technology.24 On genetic resources, the issue of relevance pertains to the definition of fisheries resources and the place of these resources within the scope of the future instrument.25 Another issue that should be brought to our attention is the action of RFMOs. These organizations play a significant role in maritime spaces relevant to the exploitation of marine living resources, mainly the high seas. Over time, they have developed management rules that go beyond mere recommendations or advice. They have also influenced the behaviour of non-contracting parties to multilateral binding instruments. One can identify a number of competences of a scientific, technical and institutional nature that have been attributed to them, namely coordination of scientific activities, the fixing of total admissible catches and fishing effort, the adoption of proposals of regulation and rules on protected species, minimum sizes, fishing gear and fishing seasons, the definition of mechanisms of control and surveillance, the exchange of information and the promotion of peaceful settlement of disputes.26 We must underline that UNCLOS explicitly appeals to the action of international organizations.27 As a previous consideration, it is not foreseeable, in our view, that the regime of rights and duties in operation on the high seas is likely to be affected by such an action. In any case, attention should be paid to the role of formal international organizations in the future, since the growing complexity of resource conservation and management justifies greater interplay between these organizations and the States. The challenges ahead pertain to the relationship between the specialized production of rules by international organizations and the legal instruments adopted by the States. In this context, it is worth recalling that it is the internal legal system of the States that must foresee the control and sanctioning regime28 and give effect to the general duty of cooperation. Taking into account the competences generally recognized as being those of international organizations in the field of conservation and management of fisheries resources (production of rules, enforcement, recommendations on standards), it has proved crucial that they be given the appropriate means with which to perform their duties under political, financial and technically adequate conditions. The possible redefinition of the functions of international organizations in various fields (fisheries, biodiversity, pollution, targeted management of certain resources) and the setting up of more 24

For an overview of the general context of the negotiation, Cf. Tladi (2015), pp. 259–271. For further developments regarding the different maritime spaces, Cf. Kalinoe (2005), pp. 100–113; Nunes (2011), pp. 259–283; Kirchner-Freis and Kirchner (2014), pp. 377–395. 26 Cf. Gómez (2002), Sydnes (2005), pp. 117–135; Losa (2009), pp. 159–183. 27 In this context, we should specially mention Part V (Exclusive Economic Zone) and Part VIII (High Seas) of the Convention. Under the provisions included in Part XII (Protection and Preservation of the Marine Environment) and Part XIII (Marine Scientific Research), obligations of cooperation have also been established. Cf. Arts 239, 242 to 244, 246 to 249, 252 and 254, UNCLOS. 28 For a global view on control, Cf. Palma-Robles (2016), pp. 139–160. 25

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effective mechanisms in the fields of control, sanctions and mutual assistance are challenges that must be addressed in a more effective way by the States and by the contracting parties of the instruments instituting such organizations in order to ensure not only their proper functioning, but also better coordination between the different bodies responsible for the preservation of the marine environment. The ongoing process of extension of the continental shelf also raises an interesting challenge. It consists, in our view, of the definition of some aspects stemming from the provisions of UNCLOS in this domain. Special attention must be given in future to the exploitation of living organisms that are sedentary species and its interplay with the regime of rights and freedoms within the context of Article 78 (2) of UNCLOS. Finally, a reference to a significant issue from an institutional point of view: the action of the International Tribunal for the Law of the Sea (ITLOS).29 As for the normative background, one might say that, regarding marine living resources, there are three pillars of the approach enshrined in UNCLOS: conservation, management and cooperation. The rights and duties foreseen in the Convention are present in a number of its provisions and this not only regarding exploitation, but also in the wider context of the protection and preservation of the marine environment, scientific research and the prevention of the pollution and the fulfilment in good faith of obligations under the Convention, and compulsory procedures.30 Taking into account ITLOS jurisprudence regarding the conservation of resources,31 one can conclude that, in the field of the application of provisional measures (which is relevant in the context of the preservation of marine resources), the Tribunal established the following guidance: on the one hand, the Tribunal was sensible to a wide notion of conservation, aimed at the protection and improvement of resources in order to achieve the best possible economic and social benefit for mankind and its environment, at present and in the future, when we are in the presence of measures designed to protect a specific resource. On the other hand, the Tribunal admitted that, beyond the multilateral agreement at stake, which was the subject matter of the case, it is also possible to invoke the relevant provisions of UNCLOS. Finally, the Tribunal invoked not only the applicable provisions of UNCLOS, but also its Rules, according to which the Tribunal may prescribe measures different, in whole or in part, from those requested.32 One has to recognize that this constitutes an ‘inclusive’ approach enabling consideration of a series of aspects that can provide solutions to other situations submitted to the Tribunal. Will the Tribunal follow the abovementioned line with adaptations in order to find the most appropriate outcome

29

For the evolution of such an action, Cf. Vicuña (2018), pp. 96–107. Cf. Arts 56, 194, 286, 297 (3) and 300, UNCLOS. 31 Southern Bluefin Tuna Cases (New Zealand v. Japan and Australia v. Japan, Provisional Measures). In this respect, Cf. Sohn and Noyes (2004), pp. 844–853. 32 Cf. Art. 89 (5) of the Rules of the Tribunal. In this regard, Cf. Churchill (2012), pp. 143–171, in particular pp. 151–153. 30

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to the cases submitted in the specific context of the management of fisheries resources?

3 Conclusive Remarks A number of topics have been identified as a subject of concern to the international community regarding the conservation and management of marine living resources on a wide scale, with special focus on the fisheries sector. The current legal frameworks (UNCLOS and related instruments) and a number of ‘soft law’ instruments, as well as those in preparation in the appropriate international fora designed to provide solutions for activities of exploitation, will ultimately enable adequate responses to be provided for this issue. However, strong commitment and true political will of all the actors concerned are necessary to address such challenges in a coherent and useful manner.

References Ariadno MK (2018) Toward seafood resilience: how to achieve sustainable fisheries development. In: Nordquist MH, Moore JN, Long R (eds) The marine environment and United Nations sustainable development goal 14: life below water. Brill/Nijhoff, Leiden/Boston, pp 50–65 Bailey J (1996) High seas fishery: towards a sustainable regime. Sociologia Ruralis 36(2):544–579 Cardoso FJC (2000) O Direito Internacional do Mar e o conceito de ‘pesca responsável’. Economia e Sociologia 69:227–240 Churchill R (2012) Trends in dispute settlement in the law of the sea: towards the increasing availability of compulsory means. In: French D, Saul M, White ND (eds) International law and dispute settlement. Hart, Oxford, pp 143–171 Churchill R (2014) Fisheries and their impact on the marine environment. In: Ribeiro MC (coord) 30 Years after the signature of the United Nations on the law of the sea: the protection of the environment and the future of the law of the sea. Almedina, Coimbra, pp 23–52 Cochrane KL (2007) Marine protected areas as management measures: tools or toys? In: Norquist MH, Long R, Heidar TH, Moore JN (eds) Law, science & ocean management. Martinus Nijhoff, Leiden, pp 701–737 Courtil O (2009) De nouvelles responsabilités pour les acteurs de la pêche. In: Coudennec A, De Cet Bertin C (eds) Mer et Responsabilité. A. Pedone, Paris, pp 87–97 Ferri N (2015) Conflicts over the conservation of marine living resources. Third states, governance, fragmentation and other recurrent issues in international law. G. Giappichelli Editore, Milano Fleischer CA (1985) La pêche. In: Dupuy R-J, Vignes D (eds) Traité du Nouveau Droit de la MER. Bruylant/Economica, Bruxelles/Paris, pp 819–956 Gómez EMV (2002) Las Organizaciones Internacionales de Ordenación Pesquera. La Cooperación para la Conservación y Gestión de los Recursos Vivos del Alta Mar. Junta de Andalucía, Consejeria de Agricultura y Pesca Hey E (1989) The regime for the exploitation of transboundary marine fisheries resources. The United Nations law of the sea convention. Cooperation between States. Martinus Nihoff, Dordrecht

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Kalinoe L (2005) Regulating access and the use of marine genetic resources within the exclusive economic zone. In: Ebbin SA, Hoel AH, Sydnes AK (eds) A sea change: the exclusive economic zone and governance institutions for living marine resources. Springer, Dordrecht, pp 100–113 Kirchner-Freis I, Kirchner A (2014) Genetic resources of the sea. In: Attard DV, Fitzmaurice M, Gutiérrez NA (eds) The MLI manual on international maritime law, volume I: the law of the sea. Oxford University Press, pp 377–395 Losa JP (2009) Derecho del Mar y libertad de pesca. Sobre las organizaciones regionales de ordenación pesquera y el Acuerdo de 1995. In: Losa JP, Urbina JJ (coord) La Cooperación Internacional en la Ordenación de los Mares y Océanos. Justel, Madrid, pp 159–183 Nunes JA (2011) Recursos genéticos marinhos em zonas para além das jurisdições nacionais – o debate continua. Cadernos ‘O Direito’ 6:259–283 Palma-Robles MA (2016) Fisheries enforcement and the concepts of compliance and monitoring, control and surveillance. In: Warner R, Kaye S (eds) Routledge handbook of maritime regulation and enforcement. Routledge/Taylor & Francis Group, London/New York, pp 139–160 Scott KN (2013) Conservation on the high seas: developing the concept of high seas marine protected areas. In: Freestone D (ed) The 1982 law of the sea convention at 30: successes, challenges and new agendas. Martinus Nijhoff, Leiden, pp 175–183 Sohn LB, Noyes JE (2004) Cases and materials on the law of the sea. Transnational Publishers, Inc., New York Sydnes AK (2005) Regional fisheries organizations and international fisheries governance. In: Ebbin SA, Hoel AH, Sydnes AK (eds) A sea change: the exclusive economic zone and governance institutions for living marine resources. Springer, Dordrecht, pp 117–135 Tanaka Y (2008) A dual approach to ocean governance. The cases of zonal and integrated management in international law of the sea. Ashgate, Burlington Tladi D (2011) Gouvernance des océans: un cadre de réglementation fragmenté? In: Jacquet P, Pachauri RK, Tubiana L (eds) Regards sur la Terre. Armand Colin, Paris, pp 223–230 Tladi D (2015) Conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction: towards an implementing agreement. In: Rayfuse R (ed) Research handbook on international marine environmental law. Edward Elgar, Cheltenham, pp 259–271 Treves T (2014) The FAO code of conduct for responsible fisheries between soft and hard law. In: Lodge MW, Nordquist MH (eds) Peaceful order in the World’s oceans. Essays in Honour of Satya N. Nandan. Brill/Nijhoff, Leiden/Boston, pp 301–307 Tsamenyi M, Hanich Q (2013) Fisheries jurisdiction under the law of the sea convention: rights and obligations under the sovereignity of coastal states. In: Freestone D (ed) The 1982 law of the sea convention at 30: successes, challenges and new agendas. Martinus Nijhoff, Leiden, pp 109–119 Vicuña FO (2018) The contribution of the tribunal to the progressive development of international law. In: The contribution of the international tribunal for the law of the sea to the rule of law: 1996–2016. La contribution du Tribunal international du droit de la mer à l’état de droit: 1996–2016. Brill/Nijhoff, Leiden/Boston, pp 96–107

Fernando Correia Cardoso Legal Adviser at the Directorate-General for Maritime Affairs and Fisheries of the European Commission from 1986 to 2018. He was Visiting Lecturer at the Faculty of Law of the Universidade da Coruña (Master in European Studies—area of European and international law on fisheries). Prior to that, he was a Lecturer at the Law Department of the Universidade Livre de Lisboa, Legal Adviser at the Fisheries Department of the Regional Government of the Azores and a member of the Portuguese Delegation to the International Whaling Commission.

Chapter 7

Market-Based Measures Against Illegal, Unreported and Unregulated Fishing in Indonesian Waters Dita Liliansa

Abstract While coastal States are responsible to protect, conserve and manage living resources under their jurisdiction, flag States are responsible to ensure compliance by their nationals and vessels flying their flag to the coastal States’ conservation measures. However, flag States, who are supposedly having more access to the identity of their vessels, are often left turning blind eyes to the Illegal, Unreported and Unregulated fishing activities conducted by their vessels. Failure to reach a common consensus on the meaning of a genuine link of a vessel has also contributed to the lack of flag States’ control which has been identified as the root cause of IUU fishing. Even though the odds seem to be in favour of the IUU fishing offenders, recent developments have seen some improvements in the flag States’ commitment after the European Union threatened them with a possible seafood ban for failing to adopt more responsible steps to prevent, deter and eliminate IUU fishing by their fleets. This chapter explores relevant market-based measures as possible tools to deter IUU fishing in Indonesia as a representation of the global south that does not have a market power comparable to the EU but is running out of options to put an end to IUU fishing.

Most of the research were carried out during her prior appointment as a Junior Lecturer at the Faculty of Law, Universitas Indonesia, and during a research stay at the Vrije Universiteit Amsterdam. D. Liliansa (*) National University of Singapore, Centre for International Law, Singapore, Singapore e-mail: [email protected] © Springer Nature Switzerland AG 2020 M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea, https://doi.org/10.1007/978-3-030-42671-2_7

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1 Introduction Illegal, Unreported and Unregulated fishing (IUU) is generally understood as a fishing activity that does not play by the national or international conservation and management rules.1 In its development, IUU fishing has also been linked to a number of crimes, such as slavery, corruption, and trafficking. In 2015, a big rescue mission was carried out in Indonesia to save approximately two thousand trafficked fishers from former Thai fishing vessels, which were operated by PT Pusaka Benjina Resources [PT PBR]. PT PBR is an Indonesian registered company, which is jointly owned by another Indonesian company, PT Buana Citra Artapersada, and a foreign company, Strait Capital Enterprise Ltd.2 Financial records also reveal that the Thaiowned Silver Sea Fishery Co is also associated with PT PBR.3 Even though Silver Sea Fishery Co has Thai ownership, it is registered in the British Virgin Islands.4 Subsequent judicial proceedings confirmed that the captain and crews of PT PBR’s vessels were recruited and employed by the Silver Sea Fishery Co.5 Eventually, the Indonesian Supreme Court held Silver Sea Fishery Co accountable for the human trafficking on board of PT PBR’s vessels.6 An extensive report by Chapsos and Hamilton confirmed the inhumane working conditions of the fishing vessels and the frequent changing of vessels’ flags between Thai and Indonesian flags.7 It also reported witness statements who claimed to spot Indonesian officials assisting the crime and a large-scale document forgery involving Thai officials.8 The Benjina case not only illustrates a link between IUU fishing and other crimes, but it also highlights a web of corporate ownership capable of shielding the beneficial owners from prosecutions. Corporations with complex ownership structures can easily conceal IUU activities, especially when multiple shareholders across national borders own the company. Such corporations can provide financial resources on a scale that would enable them to bear the costs of IUU fishing across different fleets. The general opinions consider that low monetary penalties are the reason why current measures fail to deter further IUU fishing.9 However, it can be argued that one of the reasons for an economic punishment to fail is because the flag

The complete definition of IUU fishing is set out in paragraph 3 of the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported, and Unregulated Fishing (hereinafter referred as “IPOA-IUU”). 2 See Supreme Court Decision No. 105/Pid.Sus/2015/Pn.tul.(Perdagangan Orang) and Supreme Court Decision No. 108/Pid.Sus/2015/Pn.tul.(Perdagangan Orang). 3 See Mendoza et al. (2016). 4 See IOM (2016). 5 See Supreme Court Decision No 105/Pid.Sus/2015/Pn.tul.(Perdagangan Orang) and Supreme Court Decision NO. 108/Pid.Sus/2015/Pn.tul.(Perdagangan Orang). 6 Id. 7 Chapsos and Hamilton (2018), pp. 10, 12, 14. 8 Ibid. 9 Beke and Blomeyer (2014), p. 19. 1

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States are unwilling or unable to locate and punish the actors who provide the capital and planning for IUU fishing, thus allowing them to sustain their illicit activities. Lack of flag State control has long been identified as the root cause of IUU fishing. This lack of control can be traced back to the disagreement among international communities to provide a definitive meaning to the term genuine link, which was first found in the Article 5 of the High Seas Convention and later adopted in the Article 91 of the United Nations Convention on the Law of the Sea [UNCLOS]: Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship.10

A study by D’Andrea to the history of Article 5 of the High Seas Convention indicates that ownership was actually the idea behind the genuine link concept, even though the actual wording did not make it to the final draft.11 Even though a genuine link, which is based on actual ownership, will likely facilitate a better enforcement action against IUU fishing vessels, it does not receive full support from the international community—likely because the practice of open registries has lured a mountain of money in exchange for anonymity of vessel ownership. Because of the lack of international support, the discussion has turned to the issue of flag State’s performance in exercising an effective jurisdiction and control over vessels flying its nationality. In the M/V Saiga case, the International Tribunal for the Law of the Sea [ITLOS] accepted that a ship owned by a Cypriot, managed by a Scottish corporation, and chartered to a Swiss company could be legally registered in Saint Vincent and the Grenadines as long as it met Saint Vincent and the Grenadines’ requirements.12 Then, in the M/V Virginia G, ITLOS also accepted that an effective jurisdiction and control of a flag State could be met by delegating technical certificates issuance and annual safety inspections to the third parties.13 Yet, in its second advisory opinion, ITLOS held that a flag State holds the responsibility to ensure compliance by its vessels and its nationals to the coastal State’s conservation measures,14 and to ensure that its vessels and nationals are not engaged in IUU fishing activities.15 This duty is known as the due diligence obligation of a flag State,16 though it has yet to be tested. Ensuring flag States’ compliance has been

10

United Nations Convention on the Law of the Sea, Art. 91(1). D’Andrea (2006), p. 4. 12 The M/V Saiga (No. 2) (St Vincent and the Grenadines v. Guinea), Case No. 2, Order of July 1, 1999, paras. 75–88. 13 The M/V Virginia G (No. 19) (Panama v. Guinea-Bissau), Case No. 19, Order of April 14, 2014, para. 106. 14 Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) (Request for Advisory Opinion submitted to the Tribunal), Advisory Opinion, ITLOS Case No. 21 (April 2, 2015), para. 127. 15 Id., para. 129. 16 Id., para. 128. 11

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found difficult to the extent that the term “flags of convenience” has been gradually replaced by the term “flags of non-compliance.” On the other hand, the Food and Agriculture Organisation [FAO] has developed the International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported, and Unregulated Fishing [IPOA-IUU], which requires data on the name and address of beneficial owner as well as the ownership history of a vessel. Paragraph 18 of the IPOA-IUU states that: In the light of relevant provisions of the 1982 UN Convention, and without prejudice to the primary responsibility of the flag State on the high seas, each State should, to the greatest extent possible, take measures or cooperate to ensure that nationals subject to their jurisdiction do not support or engage in IUU fishing. All States should cooperate to identify those nationals who are the operators or beneficial owners of vessels involved in IUU fishing.17

Paragraph 42 of the IPOA-IUU further specifies that a flag State has a positive obligation to maintain a record of their fishing vessels, and it may include name, street address, mailing address and nationality of natural or legal persons with beneficial ownership of the vessel, name and ownership history of the vessel, as well as history of non-compliance.18 At least seven Regional Fisheries Management Organisations [RFMOs] have included a section on ownership in their IUU vessels lists, even though the lists may not be updated regularly. These regional bodies are the Commission for the Conservation of Antarctic Marine Living Resources [CCAMLR], the International Commission for the Conservation of Atlantic Tunas [ICCAT], the North Pacific Fisheries Commission [NPFC], the Southern Indian Ocean Fisheries Agreement [SIOFA], the South Pacific Regional Fisheries Management Organisation [SPRFMO], the Western and Central Pacific Fisheries Commission [WCPFC], and the Indian Ocean Tuna Commission [IOTC]. While CCAMLR, NPFC and SPRFMO list previous owners,19 SIOFA, WCPFC and IOTC also include beneficial owners.20 Lack of a genuine relationship between a flag State and a vessel may also lead to the flag State’s inability to exercise duties incumbent upon them under international law. Addressing issues as problematic as IUU fishing should be approached with compliance in mind. Some scholars argue that sovereign States’ compliance with international norms would depend on the States’ reputational concerns.21 Norms with reputational effects are likely to affect States’ behaviour.22 This chapter submits that market-based measures can be tools with reputational consequences that would inevitably change how States behave. Market-based measures that could identify and

17

International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported, and Unregulated Fishing [hereinafter referred as “IPOA-IUU”], para. 18. 18 Id., para. 42. 19 CCAMLR, Non-Contracting Party IUU Vessel List; NPFC, NPFC IUU Vessel List; SPRFMO, SPRFMO IUU List. 20 SIOFA IUU Vessels List; IOTC, List of IUU Vessels. 21 Downs and Jones (2002), p. 97. 22 Guzman (2002), p. 1885.

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render an IUU-fishing reputation to a State can be a deal-breaker when such a State is engaged in international trade on fish or fish products. This chapter, however, has acknowledged that a State may behave a certain way either because it is unwilling or unable to perform a particular act. Therefore, effective market-based measures must be able to address these two scenarios, especially when dealing with developing or less-developed flag States. The EU market-based measures are studied in the context of Indonesia, to explore possible tools that Indonesia may implement in the fight against IUU fishing in its waters or in its own fleets.

2 Economic Drivers of IUU Fishing in Indonesia IUU fishing occurs because the expected gains of doing it exceed the probability of detection and penalties.23 Since it is a profit-driven activity, this part will address the economic factors that drive IUU fishing in Indonesia. Because the fish stocks are depleted while the seafood demand remains high, the competition for the remaining fish stocks is getting fiercer given the current number of fishing vessels. Some companies may no longer see legal fishing as sufficiently profitable. Thus, IUU fishing is seen as an opportunity to gain easy access to limited resources and to profit from them. Even though individuals and companies can both benefit from IUU fishing, companies generally have more avenues to reduce the costs of IUU fishing especially if they own and control subsidiaries across different jurisdictions. These incentives derive from the fact that companies can shield themselves behind layers of corporate ownership. However, large and well-established companies generally have higher reputational costs to engage in IUU fishing. Based on a 2015 study, 11–16% of the world’s seafood production and 19–40% of the most significant and most valuable stocks are produced and controlled by thirteen companies.24 These multinational corporations dominate the global seafood production, operate through an extensive global network of subsidiaries and are involved in fisheries and aquaculture decision-making.25 Despite their domination, no study has found a link between their multi-billion business and IUU fishing. Eight of the thirteen corporations have even signed an agreement on ocean stewardship, which aims to improve transparency and traceability of their catches to curb IUU fishing.26

23

Charles et al. (1999), p. 96. Österblom et al. (2015), pp. 5–6. 25 Ibid. Among the top thirteen seafood companies, four companies have headquarters in Norway (Marine Harvest, Skretting, Austevoll Seafood, Ewos), three in Japan (Maruha Nichiro, Nippon Suisan Kaisha, Kyokuyo), two in Thailand (Thai Union Frozen Products, Charoen Pokphand Foods), one in South Korea (Dongwon Group), one in Spain (Pescanova), one in China (Pacific Andes), and one in the United States (Trident Seafood). 26 Clercq (2016). 24

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The indefinite meaning to the term genuine link has also given the beneficial owners of the IUU vessels the ability to circumvent the law while remaining hidden. The lack of an economic connection between the flag State and the vessels has significantly worked in favour of the IUU fishing networks. IUU fishing vessels are very adaptive in the sense that they can change name, ownership, and even registration rapidly to avoid detection. For instance, CCAMLR listed Andrey Dolgov as an IUU fishing vessel in October 2016; but since then, Andrey Dolgov has used three names and flags.27 Some authors argued that the effective strategy would be a combination of law enforcement at sea and information gathering of the ultimate beneficiaries on shore.28 Operating both IUU and legitimate vessels could lower the costs of IUU fishing than operating legitimate vessels only.29 By owning and controlling both types of vessels, companies can mix their illegally captured fish with their legally obtained fish through transhipment at sea. Laundering IUU catch along with legitimately obtained catch will allow the price of IUU fish to be higher than it should be. There is also an indication that the owner of the seized IUU vessel will sacrifice the vessel and abandon its crew rather than jeopardising their whole IUU network.30 In other IUU fishing cases, the OECD report sniffed that some old and inefficient IUU vessels may be intentionally sacrificed as decoys to distract the coastal State’s authorities so that there will be a period for the other IUU vessels to have uninterrupted fishing.31 Otherwise, some companies have access to sophisticated communications and early warning systems to avoid being caught.32 Considering that, Indonesian patrol vessels may not be the fastest vessels around, more modern and faster IUU fishing vessels may easily get away from pursuit. Even though chasing the brains of IUU fishing vessels is already challenging, corruption is also another cost to IUU vessels operating in Indonesia that enables their operations to remain undetected. After the arrest of the Director General of Marine Transportation for corruption,33 Indonesia Corruption Watch claimed that officials in the Indonesian port authority have also received bribes in exchange of negligence to the seaworthiness of a ship.34 Meanwhile, the previous Director was also arrested for corruption.35 In other instances, Indonesia’s Corruption Eradication Commission also found indications of corruption in the issuance of permits at the Ministry of Marine Affairs and Fisheries.36

27

Stop Illegal Fishing (2018). Utermohlen and Kittock (2017). 29 Agnew and Barnes (2004), pp. 1–33. 30 High Seas Task Force (2006), p. 25. 31 Agnew and Barnes, Id. 32 Ibid. 33 Kompas (2017), Suap Rp 20,74 Miliar untuk Dirjen Hubla Termasuk OTT Besar KPK. 34 BBC (2017). 35 Tirto.id (2017). 36 CNN Indonesia (2017). 28

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IUU fishing is attractive because it offers lower operating costs than law-abiding fishing practices because there could be fishing costs that do not apply to IUU vessels. For instance, IUU vessels will not be paying any taxes incurred in legitimate fishing. In 2016, the fisheries sector only contributed to 0.02% of Indonesian GDP or about IDR 986 billion (about USD 75 million). Even though Indonesia is the world’s second largest producer for marine capture fisheries,37 Indonesia’s tax revenues from the fisheries sector rank the lowest compared to other sectors. Indonesia’s Ministry of Marine Affairs and Fisheries pointed out that only 2217 out of 2910 registered fisheries taxpayers paid their taxes.38 Certain documents are required to conduct legitimate fishing in Indonesia. Each person who owns or operates a foreign vessel capturing fish in Indonesia must obtain a fishing permit known as SIPI (Surat Izin Penangkapan Ikan).39 In addition to SIPI, a transport permit known as SIKPI (Surat Izin Kapal Pengangkut Ikan) is also required for owning and/or operating a transport vessel carrying fish in Indonesia’s fisheries management zone.40 Moreover, each person who carries out any fisheries business in Indonesia must obtain a fisheries business permit known as SIUP (Surat Izin Usaha Perikanan).41 These permits are seen as operational costs that the IUU vessels may try to avoid. Large economic disparities between Indonesia and more developed countries also create cheap labour for IUU fishing. Poverty and unemployment in many parts of Indonesia may lure people who are desperate to find a job to operate IUU fishing for even subsistence income. While honest fishing companies will be constrained by labour conditions and regular maintenance of their vessels, IUU fishers will not. IUU companies will likely neglect the safety and working conditions to maximise their profits. For them, there is no point of maintaining ships that could be seized anytime or ensuring good working conditions when they can find people who are willing to fill the spots for a minimum wage and poor working environment.42 As the primary legal instrument governing the ocean, UNCLOS requires the flag State to “ensure safety at sea with regard, inter alia, (a) to the construction, equipment and seaworthiness of ships; (b) the manning of ships, labour conditions and the training of crews.”43 Indonesian law itself has laid out detailed technical requirements to ensure vessel safety.44 It has also established the rights and obligations of seafarers working in Indonesian or foreign vessels.45 More recently, Indonesia issued a regulation to ensure legal protection for Indonesians working in

37

FAO (2018), p. 9. Ministry of Marine Affairs and Fisheries (2017). 39 Law No. 45 on Fisheries, Art. 27(2). 40 Id., Art. 28(2). 41 Id., Art. 92. 42 Telesetsky (2015), p. 957. 43 UNCLOS, Art. 94(3). 44 See Law No. 17 on Shipping. 45 See Government Regulation No. 7 of 2000 on Seafarers. 38

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Indonesian or foreign fishing vessels.46 Even though this regulation aims to set a bar for humane working conditions, it increases the costs of doing legitimate fishing.

3 Possible Market-Based Measures to Deter IUU Fishing in Indonesia The IPOA-IUU is the first international instrument, which explicitly provides internationally agreed market-related measures to address IUU fishing.47 It requires States to take all necessary steps to prevent the entry of IUU-sourced fish into the supply chain, but in a fair, transparent and non-discriminatory manner.48 However, it explicitly limits the use of trade-related measures only in exceptional circumstances, where other measures have proven unsuccessful, and only after prior consultation with the affected States.49 The steps taken must be restricted to what is necessary and consistent with international law, including the World Trade Organization [WTO] rules,50 and should be based on scientific evidence.51 The scientific evidence requirement has to pay attention to the precautionary principle,52 which means inadequate scientific evidence shall not be used as a ground for postponing conservation and management measures where the damage to the environment is likely. This chapter will not go deep into an analysis of the compatibility of WTO rules and trade measures against IUU fishing as it has already been discussed elsewhere.53 In short, trade measures do not breach the General Agreement on Tariffs and Trade [GATT] as long as they fall under its general exceptions54 and be conducted in a fair, transparent and non-discriminatory manner. Despite its non-binding status, the IPOA-IUU has been able to provide states and RFMOs with guidelines on specific issues, including market-related measures.55 The IPOA-IUU reiterates the principles of the FAO Code of Conduct for Responsible Fisheries [FAO Code of Conduct], which stresses the need to abide by WTO rules.56

46 See Minister of Marine Affairs and Fisheries’ Regulation No. 42 on the Fisher’s Work Agreement. 47 IPOA-IUU, paras. 66–76. 48 Id., para. 66. 49 Ibid. 50 Ibid. 51 Id., para. 67. 52 Art. 119(1) of UNCLOS requires that States must take into account ‘the best scientific evidence available’ in determining fisheries conservation and management measures. 53 See Young (2016), pp. 209–219; Tsamenyi et al. (2009). 54 General Agreement on Tariff and Trade (1994), Art. XX. 55 Edeson (2001), pp. 603–623. 56 See IPOA-IUU, para. 66; Code of Conduct for Responsible Fisheries, October 31, 1995, FAO Doc. 95/20/Rev/1, Arts 6.14 and 11.2.

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In addition to GATT, the other relevant WTO agreements on seafood trade are the Agreement on the Application of Sanitary and Phytosanitary Measures, Agreement on Technical Barriers to Trade, Agreement on Implementation of Article VI of GATT, Agreement on Import Licensing Procedures, Agreement on Safeguards, and Agreement on Trade-related Aspects of Intellectual Property.57 Even though there have been no legal disputes pertaining to the market-related measures on IUU fishing, the debates on the legality of unilateral trade measures to address environmental challenges had occurred much earlier following some trade disputes in the WTO.58 Becker and Stiegler explained that “a risk-neutral individual will commit an offence if and only if his private expected benefit exceeds the expected sanction for doing so.”59 Therefore, the measures to curb IUU fishing should be able to increase the costs of IUU activity while at the same time reducing the expected economic benefits. This chapter will identify relevant market-based measures based on the incentives of doing IUU fishing in Indonesia. It is argued that in addition to economic punishments to the individual IUU vessels, regulatory measures that would affect how individual flag states control their vessels, thus the beneficial owners of the IUU vessels, are also necessary. There is no definitive list of what can be considered as trade measures in the context of seafood trade. The IPOA-IUU uses the terms ‘market-related measures’ and ‘trade-related measures’ interchangeably. They can be in the form of catch documentation or certification schemes or other measures that could prevent IUU fish or fish products from being traded or imported into a state’s territory. To determine which trade measures to use depends on the role and interests that Indonesia has: a coastal state or a flag state. As a coastal state, Indonesia has the interests to manage and conserve its waters from non-compliant vessels, either vessels flying Indonesian flag or foreign flag. Here, even though Indonesia does not have the same market power as the EU which is the largest seafood importer in the world,60 Indonesia can still capitalise on the EU power to ensure compliance of foreign vessels. In the end, those IUU vessels have to land their catch somewhere, and there is a big possibility that they will target the EU market. Given that the EU is working very actively to prevent access of IUU fish and fish products to the EU market since the enactment of the EU Regulation to Prevent, Deter and Eliminate IUU Fishing [EU-IUU Regulation],61 foreign fishing vessels wishing to enter the EU market will have to think twice before extracting fish illegally in Indonesia. Whereas

57

Palma et al. (2010), p. 177. See Young (2014), pp. 302–317. 59 Gallic and Cox (2006), p. 690. 60 Spain, France, Germany, Italy and Sweden are the five EU member States, which are in the top ten importers of fish and fishery products. Their combined imports make EU the largest market for fish imports (See FAO 2018, p. 55). 61 See EC Regulation No. 1005/2008 and EC Regulation No. 1010/2009. 58

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as a flag State, Indonesia shall ensure that its vessels do not engage in IUU fishing or otherwise the EU third State’s engagement procedures could kick in. The EU-IUU Regulation is one of the exemplary market-related measures capable of pressuring States to perform their duty in fighting IUU fishing. Even though it does not directly bind Indonesia, it imports some of its provisions from the IPOAIUU and has referred to UNCLOS as the basis of its measures against third-party states.62 The European Commission had even identified Cambodia as a non-cooperating country in 2012 on the basis of a customary character of a specific UNCLOS provision.63 Some authors had argued that the measures adopted in the EU IUU Regulation are, at least on paper, generally consistent with international fisheries instruments and RFMOs practices, except for the listing of non-cooperating third countries and associated trade restrictions, which are considered as a progressive development of international responses to IUU fishing.64

3.1

Identification of IUU Fishing Vessels

Developing a list of IUU fishing vessels can be a starting point to trigger other market-related measures. It involves putting in place procedures for sighting, listing and deletion of vessels presumably engaged in IUU fishing. This measure has been practised by several RFMOs as it is consistent with the IPOA-IUU provision to establish records of vessels engaged in IUU fishing through relevant RFMOs.65 The IPOA-IUU even makes numerous references to RFMOs, as they are arguably the heart of the IPOA-IUU’s market-related measures.66 It specifically calls for State actions upon an identification stage by an RFMO. Paragraph 66 of the IPOA-IUU provides: States should take all steps necessary, consistent with international law, to prevent fish caught by vessels identified by the relevant regional fisheries management organization to have been engaged in IUU fishing being traded or imported into their territories. The identification of the vessels by the regional fisheries management organization should be made through agreed procedures in a fair, transparent and non-discriminatory manner. [. . .]67

Listing a vessel on IUU records would have trade consequences on the vessel, for example, denial of fishing opportunities and port access or refusal of catch. Thus, inclusion on the IUU vessel list will be a significant disincentive to the IUU vessels because it will inevitably force the vessels to comply or to seek an alternative identity

62

Rosello (2017), pp. 306, 308. Ibid. 64 Tsamenyi et al. (2010), p. 30. 65 IPOA-IUU, para. 81.4. 66 Palma et al. (2010), p. 193. 67 IPOA-IUU, para. 66. 63

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or areas to carry out their activities. In 2014, Indonesia had taken some steps to create a list of non-compliant vessels when its Ministry of Marine Affairs and Fisheries issued a moratorium on all fishing vessels built outside of Indonesia but reflagged as Indonesian vessels (often referred by the Ministry as “ex-foreign vessels”).68 The year after the moratorium, the Indonesian task force on IUU fishing investigated 1132 “ex-foreign” fishing vessels to identify their compliance level and to analyse their IUU fishing activities.69 The investigation found that all of them have breached Indonesian fisheries law in varying degrees of violations.70 As a result, all those “exforeign” vessels are now included in a “list of blacklisted and deregistered vessels.”71 Some of the consequences of this listing are that the most recent Indonesia’s negative list of investment now includes the prohibition of “ex-foreign” vessels, foreign vessels, and foreign investment in Indonesia’s capture fisheries industries,72 and transhipment at sea is also prohibited.73 Technically, the unilateral listing by Indonesia only includes Indonesian registered vessels. To date, there is no indication that Indonesia’s vessel listing would extend to foreign vessels. Meanwhile, since 2015, Indonesia has participated in the FAO pilot project on the Global Record of Fishing Vessels, Refrigerated Transport Vessels and Supply Vessels [FAO Global Record], which aims at deterring and eliminating IUU fishing.74 Phase 1 involves official data gathering from the pilot project partners. The key component of this programme is the assignment of a Unique Vessel Identifier [UVI] that is an unchangeable International Maritime Organization [IMO] identification number that is attached to the vessel throughout its lifetime, regardless of any change in name, ownership or nationality.75 Unlike IUU vessels lists developed by regional fisheries bodies that only write down the

68 The moratorium, which was initially intended for a period between November 2014 and April 2015 was extended for 6 months and finally lifted in October 2015 (See Minister of Marine and Fisheries’ Regulation No. 56/PERMEN-KP/2014 on Fishing Moratorium in Indonesia’s Fishing Zones, Art. 1(2) and 3). 69 Santosa (2016). 70 Husein (2015). 71 The list of the blacklisted vessels is spelled out in the Letters of the Secretary General of the Ministry of Marine Affairs and Fisheries Number B-195/SJ/11/2016 and B-755/SJ/VI/2016, which were issued on February 11, 2016 and June 16, 2016, respectively. The country of origin of the blacklisted vessels varies: Australia, Belize, China, Honduras, Japan, Panama, Philippines, South Korea, Taiwan, Thailand, Vietnam, and the United States. 72 See President’s Regulation No. 44 of 2016 on the list of Business Fields [that are] closed and opened with Conditions to investment, p. 45. 73 Minister of Marine Affairs and Fisheries’ Regulation No 57/PERMEN-KP/2014 on the Second Amendment to the Minister of Marine Affairs and Fisheries’ Regulation No. PER.30/MEN/2012 on Capture Fisheries Business in Indonesia’s Fishing Management Zones, Art. 37. 74 FAO, Global Record of Fishing Vessels, Refrigerated Transport Vessels and Supply Vessels. 75 FAO, Global Record of Fishing Vessels, Refrigerated Transport Vessel and Supply Vessels: Unique Vessel Identifier (UVI).

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name of IUU vessels,76 this record also includes information of all fishing vessels, including the compliant ones. At this moment, it is still early to examine whether FAO’s UVI initiative would work regardless of vessel’s change of name, ownership or flag. Unless other countries adopt the same standard, the problem may only be moving to areas where enforcement is weak. The EU listing may work because it creates a pool of IUU vessels lists from all of its member States; thus, it has a multilateral character. In this regard, Indonesia has also cooperated with its Association of Southeast Asian Nations [ASEAN] counterparts to adopt a regional listing. Since a list unilaterally issued by Indonesia may be questioned for its credibility or fairness, a centralised listing like the FAO Global Record or a coordinated listing among ASEAN member States would be more viable. In 2015, ASEAN had issued Guidelines for Preventing the Entry of Fish and Fishery Products from IUU Fishing Activities into the Supply Chain [ASEAN Guidelines on IUU Fishing].77 It is worth noting that the Guidelines explicitly refers to the EU-IUU Regulation.78 They suggest several trade-related tools to address IUU fishing problems in the region, including Catch Certification Scheme, Catch Documentation Scheme that combines both catch certification and trade documentation, and a Regional Fishing Vessels Record [RFVR]. An RFVR is developed in collaboration between ASEAN and the Southeast Asian Fisheries Development Centre [SEAFDEC]—one of the most active regional bodies in ASEAN on fisheries issues. An RFVR is an information-sharing system among ASEAN member States, which provides a database of fishing vessels with at least 24 meters in length. Even though it includes information on the owner’s name, it is not clear whether it also includes a previous owner or even beneficial owner.79 In addition to the ASEAN-SEAFDEC mechanism, Indonesia is a party to the Regional Plan of Action to Promote Responsible Fishing Practices including Combating IUU Fishing in the Region [RPOA IUU]. This coalition of eleven countries, eight of which are ASEAN member States, also has its own IUU vessel list, which is updated annually during the RPOA IUU Coordination Committee Meeting.80 This listing currently names 18 vessels but provides minimum information about them, even though it identifies the action taken against them.

A list and links to regional fisheries bodies’ IUU vessels lists can be accessed here http://www. fao.org/global-record/information-system/rfb-iuu-vessels-lists/en/. 77 ASEAN Guidelines for Preventing the Entry of Fish and Fishery Products from IUU Fishing Activities into the Supply Chain. 78 Id. 79 SEAFDEC (2016). 80 RPOA IUU (2019), IUU Vessel. 76

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Catch Certification and Documentation Schemes

Illegally captured fish is likely to be more competitive in the market because it could lower vessels’ operational costs. This leads to a condition that disproportionately advantages IUU fishers at the expense of honest fishers. An IUU vessel list would struggle to keep up with the rapidly changing identities of the IUU-listed vessels. Many of the RFMOs IUU vessels lists are updated once over a relatively long period; for example, SPRFMO only renews its list annually. Hence, a catch documentation scheme can be a complementary tool to detect IUU-derived fish or fish products thus allowing the competent authorities to respond appropriately to prevent the products from entering the supply chain. Tracing seafood supply chain requires a scheme that can pinpoint catch movement until it reaches the market. Catch certificate scheme needs to be distinguished from a catch documentation scheme. The latter refers to the whole traceability system, which documents all stages of the seafood supply chain from fisher to consumer.81 On the other hand, the former is a statement, which accompanies the catch throughout the entire supply chain, even when it is in transit, transferred to another vessel or processed, and issued according to the applicable standards and procedures. The certificate will be supplied to the competent authorities of the port State for verification. A catch certificate can be either in an electronic or paper form, through an electronic system would make the verification process more time and cost efficient. Catch documentation and certification schemes are directly linked with port State inspections and control of fishing vessels seeking access to its ports. In principle, UNCLOS expects all vessels seeking entry to a port to comply with the coastal State’s law, including if it relates to “the landing of all or any part of the catch by such vessels in the ports of the coastal State.”82 Whereas the Port State Measures Agreement further enables a port State to deny entry of vessels engaged in IUU fishing or fishing-related activities in support of IUU fishing, or allow their entry for the purpose of inspections and other appropriate actions.83 Ensuring that only legitimate vessels can land or tranship catch in a coastal State’s port will create lower market costs to legitimate vessels and at the same increase the costs for IUU vessels. These catch certification and documentation schemes are consistent with the FAO Code of Conduct, which explicitly calls for improvement of identification of the origin of fish and fishery products traded.84 This principle is further specified in the IPOA-IUU, which encourages the adoption of catch documentation and certification requirements as well as steps to improve market transparency to allow the 81

Palma et al. (2010), p. 189. Ibid.; Art. 62 para. 4(h). 83 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (2009), Art. 9(1). 84 Code of Conduct for Responsible Fisheries, para. 11.1.11. 82

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traceability of fish or fish products.85 Several RFMOs, such as CCAMLR, IOTC, and ICCAT, have implemented these schemes as an information-gathering and trade-tracking tool.86 These schemes are particularly useful for major seafood importing State like the EU. As the EU is the world’s largest market for fish and fish products, it has a considerable power as a market state to compel transparency of every fish and fish products entering its market. Any State wishing to land or export fish or fish product to the EU must agree to its terms of catch certificates.87 In 2012, Indonesia developed a National Plan of Action to Prevent, Deter and Eliminate IUU Fishing [NPOA-IUU] in accordance with the FAO Code of Conduct and the IPOA-IUU. In implementing the IPOA-IUU, Indonesia explicitly admits that it has adopted and implemented the European Commission Regulation No. 10005/ 2008 on Catch Certification Scheme.88 As the EU is one of the markets for Indonesian seafood, this certification scheme works both ways: to avoid possible EU sanctions against its vessels and to secure its waters from foreign IUU fishing vessels. To support Indonesian seafood export to the EU,89 Indonesia has enacted a catch certification requirement since 2012, with particular attention to the EU-IUU Regulation.90 In addition to catch certificate, there must be an import certificate confirming that the exported catch bound for the EU market is using parts or the entire fish from another country that has notified the catch certificates to the EU,91 and a landing statement confirming that the landed catch does not originate from IUU fishing.92 For this scheme, Indonesia has developed an online data-sharing system for applying, issuing and storing catch certificates.93 Because of the Benjina case, now Indonesia also requires a human rights certificate to fishing vessels.94

85

IPOA-IUU, paras. 69 and 71. Tsamenyi et al. (2010), p. 24. 87 EC Regulation No.1005/2008, Arts 12 and 18. 88 Minister of Marine Affairs and Fisheries (2012), Decree No. KEP.50/MEN/2012 on the National Action Plan on the Prevention and Elimination of IUU Fishing. 89 The main Indonesia’s seafood export destinations in the EU are Germany, United Kingdom, Italy and Spain. Question remains whether the United Kingdom will still require catch certificate upon quitting the EU (See Ministry of Marine Affairs and Fisheries (2016), Incar Uni Eropa, KKP Optimalkan Sertifikasi Hasil Tangkapan, https://kkp.go.id/djpt/artikel/2761-incar-uni-eropa-kkpoptimalkan-sertifikasi-hasil-tangkapan). 90 Minister of Marine Affairs and Fisheries’ Regulation No. PER/13/MEN/2012 on the Catch Certificate, Preamble. 91 Id., Art. 1(5). 92 Id., Art. 1(6). 93 Marwoto (2011). 94 See Ministerial Regulation No. 35/PERMEN-KP/2015 on System and Certification of Human Rights in the Fishing Industry, Art. 3 paras. (1) and (2); See also Regulation of the Minister of Marine Affairs and Fisheries of the Republic of Indonesia No. 2/PERMEN-KP/2017 concerning Requirement and Mechanism of Human Rights Certification for Fisheries. 86

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Learning from the EU, Indonesia could make use of any available IUU vessels list as a basis of the refusal of catch or even port access.95 The lists could include Indonesia’s listing, ASEAN RFVR, FAO Global Record, RPOA-IUU’s and RFMO’s lists. The absence of valid catch certificates should also give the signal that the vessel might be an IUU vessel; though, identification of an IUU vessel would require more investigation and factual evidence rather than a mere absence of a certificate. Unfortunately, the more specific ministerial regulation on catch certificates does not establish any sanction for non-compliance.96 Based on its ministerial regulation, Indonesia would only ban future imports from a vessel when the vessel does not utilise its import permit according to its purpose97 and fails to provide a report on its import and export activity to the competent authority.98 In the end, vessels are mere instruments. They move according to those who fund and operate them. Thus, traceability is critical to identify parties involved in harvesting, transhipping, and marketing IUU catches. It often depends on the willingness of States involved to have an information-sharing system that can verify the origin of the catch and indicate whether the catch was legally captured. The enforceability of multilateral catch documentation schemes is more comprehensive and stronger than unilateral schemes.99 Therefore, the establishment of an electronic information-sharing system of catch certificates among relevant States is encouraged to enhance effectiveness. After the enactment of the ASEAN Guidelines on IUU fishing in 2015, ASEAN Catch Documentation Schemes [ACDS] was introduced in 2017. Like the ASEAN Guidelines on IUU fishing, ACDS also refers to the EU-IUU Regulation. ACDS recognises the influence of market-based measures by the EU on Southeast Asian seafood trade and answers the member States’ need for a certification scheme that meets the importing countries’ standards but in a simplified fashion.100 Considering Indonesia may have difficulties in articulating and implementing its catch certificate schemes, this ASEAN initiative could be a way to enhance its capacity as well as other ASEAN member States.101

95

See EC Regulation No. 1005/2008, Art. 18(1). See Minister of Marine Affairs and Fisheries’ Regulation No. PER/13/MEN/2012 on the Catch Certificate. 97 Minister of Marine Affairs and Fisheries’ Regulation No 74/PERMEN-KP/2016 on the Quality and Security Control of Fisheries Products entering Indonesian Territories, Art. 20 paras. (1) and (3). 98 Id., Art. 29 and Art. 30(1). 99 Hosch and Blaha (2017), p. 6. 100 ASEAN Catch Documentation Scheme for Marine Capture Fisheries. 101 The ASEAN member States’ shortcomings in implementing EU-IUU Regulation was seen during Fisheries Consultative Group of the ASEAN-SEAFDEC Strategic Partnership in December 2010. SEAFDEC, therefore, was asked to take a lead role in enhancing ASEAN member States’ capacity to comply with EU-IUU Regulation. 96

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Identification of Non-Complying State

The EU’s procedures to identify a third State as a non-cooperating State has been considered as an innovative response to IUU fishing.102 Even though this measure entails restrictive trade measures and is neither provided for in the IPOA-IUU nor other international instruments, there has been no legal challenge to this measure. Some RFMOs have also imposed similar measures to respond to non-complying States.103 Non-compliance could arise from two possible scenarios: either the flag States cannot meet their obligation, or they are economically convenient to ignore the laws. Accordingly, a decision to identify and declare a flag State as “non complying” comes after a series of investigation as well as discussions with the relevant flag State to understand whether the cause of non-compliance is unwillingness or inability. Not only that it is consistent with the IPOA-IUU,104 but it also gives the flag State a second chance to work on its shortcomings. It also shows mutual respect between sovereign States and emphasises the importance of a careful examination that a State must take before publicly “shaming” another State for its non-compliance to international law. In the EU experiences dealing with non-compliance, it will first pre-identify a State that has the possibility to be non-cooperative. This process aims to remind third States to step up their fight against IUU fishing. Instead of punishing them with immediate ban, the EU engages in dialogues with them to develop a plan to address possible shortcomings. It is worth noting that the EU also dedicates a section on specific constraints of developing countries and a special financial instrument for assisting developing countries in their fight against IUU fishing.105 When third States fail to come up with concrete actions against IUU fishing, despite continued dialogues and assistance, the EU will then issue a pre-identification notification or identify them as non-cooperating States. To this day, the European Commission has pre-identified 26 countries; of these, six countries have acquired the status of non-cooperating third countries, thirteen countries’ pre-identification have been revoked, while the rest remains under formal dialogues.106 Recently, Comoros and St Vincent and the Grenadines have been identified as non-cooperating countries even though they do not export fisheries products to the EU. The EU’s experiences in dealing with non-cooperating States suggest that attaching serious reputational and economic consequences for

102

Tsamenyi et al. (2010), p. 30. Ibid. 104 See IPOA-IUU, para. 66. 105 See EC Regulation No 1905/2006 of the European Parliament and of the Council of 18 December 2006 establishing a Financing Instrument for Development Cooperation. 106 A full list of countries is available at https://ec.europa.eu/fisheries/sites/fisheries/files/illegalfishing-overview-of-existing-procedures-third-countries_en.pdf. 103

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non-compliance may help change States’ behaviour.107 Of the six countries listed as non-cooperating countries, three of them have been delisted for making good progress in curbing IUU fishing.108 The EU is not the only one to name and shame a country for lack of commitment against IUU fishing. The United States as another top seafood importer also issues reports, which indicate countries that do not have regulatory measures comparable to the United States to curb IUU fishing.109 Like the EU, once the United States identifies a country, it will first carry out a two-year consultation process to address the problem.110 Failure to take adequate measures would result in the import prohibition of fisheries products originating from that country and deny port privileges to their fishing vessels.111 Unlike the EU, the United States appears only to identify those countries that are exporting seafood products to the United States.112 Learning from the EU, and to some extent from the United States, by identifying a State for not doing enough to address IUU fishing, Indonesia could give an IUU reputation to the identified State thus providing a warning to seafood importing countries. This chapter recognises, however, that Indonesia does not have comparable market power as the EU or the United States. It does not have special resources to assist unable developing or less developed flag States. Moreover, identification of non-complying States may not fit with the way States interact in the ASEAN region, which prefers consultation and cooperation than naming and shaming. Despite its shortcomings, Indonesia could still capitalise on the EU market power to secure its waters from IUU fishing and ensure compliance of fishing vessels to its conservation measures. In 2017, when the EU notified Vietnam of the possibility of being identified as a non-cooperating third country, it took notes of Vietnameseflagged vessels, which committed IUU fishing in the neighbouring countries’ EEZ.113 Even though the EU did not specifically mention cases involving Vietnamese vessels in Indonesia’s EEZ as one of the bases of its decision against Vietnam, it has generally taken into account other countries or RFMOs’ reports. For instance, when the EU yellow-carded Belize in 2012, it expressly acknowledged the use of

107

Bellmann et al. (2016), p. 187. Belize and Guinea were both identified in 2013, while Sri Lanka was identified in 2015. Belize was the first country to have been removed from the list, which was in 2014; whereas Guinea and Sri Lanka was delisted in 2016 (See Council Implementing Decision 998/2016 of 16 June 2016). 109 NOAA (2019), Identification of IUU Fishing Activities. 110 Id. 111 NOAA (2015b), United States Continues Global Leadership to Address Illegal, Unreported, and Unregulated Fishing. 112 In 2015 itself, the United States identified Colombia, Ecuador, Mexico, Nicaragua, Nigeria, and Portugal as having vessels under their flag participating in IUU fishing (See NOAA 2015a). 113 See EC Decision of 23 October 2017 on Notifying the Socialist Republic of Vietnam of the Possibility of Being Identified as a Non-Cooperating Third Country in Fighting IUU Fishing. 108

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information from various RFMOs IUU vessels list and the United States’ report in 2011 which identified Belize as a “country of interest.”114

4 Conclusive Remarks Given the hardship in identifying beneficial owners of IUU vessels and the accumulative problems associated with non-complying flag States, curbing IUU fishing requires a combination between the use of market-based measures and multilateral cooperation. Regional or international actions are crucial to discourage IUU fishing activities structurally. As Kofi Annan once said, “If crime crosses all borders, so must law enforcement.”115 Even though market-based measures are possible and legal, they must be designed and carried out consistent with the applicable international law. Trade restrictions on fish and fish products can have devastating effects on the identified IUU fishing vessels, but they can also crush legitimate vessels when the restrictions are extended to all vessels flying the flag of non-compliance. Therefore, trade measures against entire fishing fleets of a State should be taken as a last resort when such State completely and repeatedly disregards its duty to effectively ensure its jurisdiction and control over ships flying its flag.116 As a seafood exporting country which is also a victim of IUU fishing, Indonesia can benefit from the EU market power by adopting comparable market-based measures like the EU. Since many of the ASEAN countries are major seafood producers who do seafood trade with the EU, ensuring that the market is free from IUU products should be not only Indonesia’s interests but also other ASEAN countries. Differing practices among neighbouring ASEAN countries could lead to port shopping that would only work in favour of IUU offenders. Therefore, Indonesia must work together with at least its ASEAN counterparts to implement a collective mechanism and standardised practices to curb IUU fishing.

114

See EC Decision of 15 November 2012 on Notifying the Third Countries that the Commission Considers Possible of Being Identified as Non-Cooperating Third Countries Pursuant to Council Regulation (EC) No 1005/2008 Establishing a Community System to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, paras. 18 and 28; NOAA (2011). 115 Annan, Address at the Opening of the Signing Conference for the United Nations Convention Against Transnational Organized Crime, Palermo, 12 December 2000. 116 UNCLOS, Art. 94(1).

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Documents Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (Rome 22 November 2009, in force 5 June 2016), FAO Council Resolution 12/2009, C 2009/LIM/11-Rev Annan K Address at the Opening of the Signing Conference for the United Nations Convention Against Transnational Organized Crime, Palermo, 12 December 2000.: http://www.unodc.org/ unodc/en/about-unodc/speeches/speech_2000-12-12_1.html ASEAN Catch Documentation Scheme for Marine Capture Fisheries (2017), adopted by 39th AMAF Meeting, 28 September 2017: https://asean.org/storage/2012/05/16.-ASEAN-CatchDocumentation-Scheme.pdf ASEAN Guidelines for Preventing the Entry of Fish and Fishery Products from IUU Fishing Activities into the Supply Chain (2015), endorsed by the SSOM 36th AMAF: http://www. seafdec.org/download/asean-guidelines-for-preventing-the-entry-of-fish-and-fishery-productsfrom-iuu-fishing-activities-into-the-supply-chain/ BBC (2017) Tak Serius Tindak Pungli,’ Ditjen Perhubungan Laut Diterpa Kasus Korupsi Tiga Tahun Beruntun: http://www.bbc.com/indonesia/indonesia-41036541 CCAMLR (2019) Non-Contracting Party IUU Vessel List: https://www.ccamlr.org/en/compliance/ non-contracting-party-iuu-vessel-list Clercq GD (2016) Big Seafood Companies Promise to Reduce Illegal Fishing; https://www.reuters. com/article/us-environment-fishing-seafood/big-seafood-companies-promise-to-reduce-illegalfishing-idUSKBN14322I CNN Indonesia (2017), KPK Telusuri Dugaan Korupsi di Sektor Perikanan: https://www. cnnindonesia.com/nasional/20170509145602-12-213491/kpk-telusuri-dugaan-korupsi-disektor-perikanan Code of Conduct for Responsible Fisheries, October 31, 1995, FAO Doc. 95/20/Rev/1 Council Implementing Decision (EU) 2016/992 of 16 June 2016 amending EC Decision of 15 November 2012 on Notifying the Third Countries that the Commission Considers Possible of Being Identified as Non-Cooperating Third Countries Pursuant to Council Regulation (EC) No 1005/2008 Establishing a Community System to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing EC Decision of 23 October 2017 on Notifying the Socialist Republic of Vietnam of the Possibility of Being Identified as a Non-Cooperating Third Country in Fighting IUU Fishing EC Regulation No 1905/2006 of the European Parliament and of the Council of 18 December 2006 establishing a Financing Instrument for Development Cooperation EC Regulation No. 1005/2008 of 29 September 2008 Establishing a Community System to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing EC Regulation No. 1010/2009 of 22 October 2009 Laying Down Detailed Rules for the Implementation of Council Regulation (EC) No 1005/2008 Establishing a Community System to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing European Commission (2017) Fight against Illegal Fishing: Commission Lists Saint Vincent and the Grenadines and the Comoros as Non-Cooperating, and Issues Warning for Liberia. https:// ec.europa.eu/fisheries/fight-against-illegal-fishing-commission-lists-saint-vincent-and-grena dines-and-comoros-non_en

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European Commission (2019a) Illegal Fishing: EU Lifts Taiwan’s Yellow Card Following Reforms. https://europa.eu/rapid/press-release_IP-19-3397_en.htm European Commission (2019b) Overview of Illegal, Unreported and Unregulated Fishing Procedures with Third Countries. https://ec.europa.eu/fisheries/sites/fisheries/files/illegal-fishingoverview-of-existing-procedures-third-countries_en.pdf FAO (2018) The state of world fisheries and aquaculture: meeting the sustainable development goals. FAO, Rome FAO, Global Record of Fishing Vessels, Refrigerated Transport Vessel and Supply Vessels: RFB IUU Vessels Lists: http://www.fao.org/global-record/information-system/rfb-iuu-vessels-lists/ en/ FAO, Global Record of Fishing Vessels, Refrigerated Transport Vessel and Supply Vessels: Unique Vessel Identifier (UVI): http://www.fao.org/global-record/background/unique-vesselidentifier/en/ FAO, Global Record of Fishing Vessels, Refrigerated Transport Vessels and Supply Vessels: http:// www.fao.org/global-record/background/about/en/ General Agreement on Tariff and Trade, Annex 1A to Marrakesh Agreement establishing the World Trade Organization (with final act, annexes and protocol) Government Regulation No. 7 Of 2000 On Seafarers Implementing Decision 2014/170/EU establishing a list of non-cooperating third countries in fighting IUU fishing pursuant to Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing as regards Sri Lanka International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported, and Unregulated Fishing (2001) Report of the 120th Session of the FAO Council, paragraph 9, CL 120/Rep IOM (2016) Report on Human Trafficking, Forced Labour and Fisheries Crime in the Indonesian Fishing Industry: https://www.iom.int/sites/default/files/country/docs/indonesia/Human-Traf ficking-Forced-Labour-and-Fisheries-Crime-in-the-Indonesian-Fishing-Industry-IOM.pdf IOTC (2019) List of IUU Vessels: http://www.iotc.org/vessels ITLOS, The M/V Saiga (No. 2) (St Vincent and the Grenadines v. Guinea), Case No. 2, Order of July 1, 1999 ITLOS, The M/V Virginia G (No. 19) (Panama v. Guinea-Bissau), Case No. 19, Order of April 14, 2014 Kompas (2017) Suap Rp 20,74 Miliar untuk Dirjen Hubla Termasuk OTT Besar KPK: https:// nasional.kompas.com/read/2017/08/25/06023141/suap-rp-2074-miliar-untuk-dirjen-hublatermasuk-ott-besar-kpk Law No. 45/2009 amending Law No. 31/2004 concerning Fishery: http://www.fao.org/faolex/ results/details/en/c/LEX-FAOC097600/ Law of the Republic of Indonesia No. 17/2008 on Shipping: http://www.fao.org/faolex/results/ details/en/c/LEX-FAOC082066 Letters of the Secretary-General of the Ministry of Marine Affairs and Fisheries Number B-195/SJ/ 11/2016 and B-755/SJ/VI/2016 Marrakesh 15 April 1994, in force (1 January 1995), 1867 UN Treaty Series 3 Mendoza M et al (2016) Fishermen slaves: human trafficking and the seafood we eat. Associated Press, New York Minister of Marine Affairs and Fisheries (2012) Decree no. KEP.50/MEN/2012 on the National Action Plan on the Prevention and Elimination of IUU Fishing. http://extwprlegs1.fao.org/docs/ pdf/ins165159.pdf Minister of Marine Affairs and Fisheries’ Regulation No 42 of 2016 on the Fisher’s Work Agreement Minister of Marine Affairs and Fisheries’ Regulation No 56/PERMEN-KP/2014 on Fishing Moratorium in Indonesia’s Fishing Zones

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Minister of Marine Affairs and Fisheries’ Regulation No 57/PERMEN-KP/2014 on the Second Amendment to the Minister of Marine Affairs and Fisheries’ Regulation No. PER.30/MEN/ 2012 on Capture Fisheries Business in Indonesia’s Fishing Management Zones Minister of Marine Affairs and Fisheries’ Regulation No 74/PERMEN-KP/2016 on the Quality and Security Control of Fisheries Products entering Indonesian Territories, Art. 20 paras. (1) and (3) Ministerial Regulation No. 35/PERMEN-KP/2015 on System and Certification of Human Rights in the Fishing Industry: http://www.fao.org/faolex/results/details/en/c/LEX-FAOC165178 Ministry of Marine Affairs and Fisheries (2016) Incar Uni Eropa, KKP Optimalkan Sertifikasi Hasil Tangkapan: https://kkp.go.id/djpt/artikel/2761-incar-uni-eropa-kkp-optimalkan-sertifikasihasil-tangkapan Ministry of Marine Affairs and Fisheries (2017) Pemerintah Optimalkan Peran Sektor Perikanan Tangkap Dalam Pembangunan Nasional: http://kkp.go.id/wp-content/uploads/2017/03/SP32PEMERINTAH-OPTIMALKAN-PERAN-SEKTOR-PERIKANAN-TANGKAP-DALAMPEMBANGUNAN-NASIONAL.pdf NOAA (2011) Implementation of Title IV of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006: Report to Congress Pursuant to Section 403(a) of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006: https://www.fisheries.noaa.gov/webdam/download/69038210 NOAA (2015a) Improving International Fisheries Management: February 2015 Report to Congress: https://www.fisheries.noaa.gov/webdam/download/69038212 NOAA (2015b) United States Continues Global Leadership to Address Illegal, Unreported, and Unregulated Fishing: http://www.noaa.gov/media-release/united-states-continues-global-leader ship-to-address-illegal-unreported-and NOAA (2019) Identification of IUU Fishing Activities: https://www.fisheries.noaa.gov/national/ international-affairs/identification-iuu-fishing-activities NPFC (2019) NPFC IUU Vessel List: https://www.npfc.int/index.php/npfc-iuu-vessel-list President’s Regulation No. 44 of 2016 on the list of Business Fields [that are] closed and opened with Conditions to investment: https://www.indonesia-investments.com/upload/documents/ Negative-Investment-List-May-2016-Indonesia-Investments.pdf Regulation of the Minister of Marine Affairs and Fisheries of the Republic of Indonesia No. 2/ PERMEN-KP/2017 concerning Requirement and Mechanism of Human Rights Certification for Fisheries: http://www.fao.org/faolex/results/details/en/c/LEX-FAOC165180 RPOA IUU (2019) IUU Vessel: http://www.rpoaiuu.org/iuu-vessel/ SEAFDEC (2016) Regional Fishing Vessel Record for Vessels 24 Meters in Length and over. 48th Meeting of the Council Southeast Asian Fisheries Development Centre (4-8 April 2016) SIOFA (2019) SIOFA IUU Vessels List: https://www.apsoi.org/mcs/iuu-vessels SPRFMO (2019) SPRFMO IUU List: https://www.sprfmo.int/measures/iuu-lists/ Stop Illegal Fishing (2018) Updated Online Combined IUU Vessel List Launched to Tackle IUU Fishing: https://stopillegalfishing.com/press-links/updated-online-combined-iuu-vessel-listlaunched-to-tackle-iuu-fishing/ Tirto.id (2017) Catatan Buruk Korupsi di Ditjen Hubungan Laut Kemenhub: https://tirto.id/catatanburuk-korupsi-di-ditjen-hubungan-laut-kemenhub-cviT United Nations Convention on the Law of the Sea, December 10, 1982, 1833 U.N.T.S. 397 Utermohlen M, Kittock P (2017) Beyond Illegal Fishing: Tracing IUU Fishing Networks to Their On-Shore Beneficiaries: https://medium.com/natural-security-forum/beyond-illegal-fishing-trac ing-iuu-fishing-networks-to-their-on-shore-beneficiaries-c51487844e9e WCPFC (2018) WCPFC IUU Vessel List for 2018: https://www.wcpfc.int/doc/wcpfc-iuu-vessellist

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Dita Liliansa Research Associate at the National University of Singapore, Centre for International Law. Law degrees from Universitas Indonesia (2014) and University of Washington School of Law (2017), under the sponsorship of the Fulbright program. Taught several courses on public international law, law of the sea, and law of treaties (in Bahasa Indonesia and English) in Universitas Indonesia, and did some short stints at law firms in Jakarta and Bangkok.

Chapter 8

Sea-Level Rise in Relation to International Law: A New Topic for the United Nations International Law Commission Patrícia Galvão Teles

Abstract One of the most important and pressing current global challenges to the Law of the Sea is the issue of climate change and its adverse effects, namely those arising from rising sea-levels. This phenomenon of sea-level rise also presents challenges to other areas of international law such as those related to statehood and the protection of persons affected by sea-level rise. The present chapter looks at this important challenge and aims at presenting the proposal for a new topic included in the United Nations International Law Commission agenda entitled “Sea-level rise in relation to International Law”, of which the author was one of the co-proponents.

1 Introduction One of the global challenges to the Law of the Sea in the twenty-first century has certainly to do with climate change and its adverse effects, including sea-level rise. As the United Nations present and past Secretary-Generals have emphasized: “climate change is the defining challenge of our time”. Climate change affects and has the potential to affect many different domains, including those related to oceans and the Law of the Sea. Impacts of climate change on the international legal framework for the oceans relate to sea-level rise, coastal erosion, fisheries, carbon dioxide sequestration, ocean acidification, marine geo-engineering, among others. In relation to international law, sea-level rise prospects on the horizon create a major challenge, not only but also with regard to the Law of the Sea. Sea-level rise and coastal erosion are serious threats for many coastal regions and islands, particularly in developing countries. Sea-level rise and other adverse impacts of climate change pose a significant risk to small island developing States and their efforts to achieve sustainable development and, for many, represent the gravest of threats to their survival and viability, including for some through the loss of territory. It has been increasingly recognized that a substantial territorial loss resulting from P. G. Teles (*) United Nations International Law Commission, Autonomous University of Lisbon, Lisbon, Portugal © Springer Nature Switzerland AG 2020 M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea, https://doi.org/10.1007/978-3-030-42671-2_8

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sea-level rise is an issue that may affect baselines, maritime zones and delimitations, but also can impact several other areas of international law, including such fundamental aspects as the elements of statehood under international law, human rights, refugee law, and access to resources, as well as broader issues of international peace and security.1 It is against this background that the International Law Association (ILA) has been looking at the issue of sea-level rise since 2012, having achieved in 2018 an important milestone in its work at the Sidney Conference.2 Also in 2018, during its 70th Session, a further development took place in the framework of the United Nations International Law Commission (ILC), which decided to include the topic “Sea-level rise in relation to International Law” in its Long-Term Programme of Work.3 The proposal has been put forward by five members of the ILC, including the author of this contribution: Bogdan Aurescu of Romania, Yacouba Cissé of the Ivory Coast, Patrícia Galvão Teles of Portugal, Nilüfer Oral of Turkey and Juan José Ruda Santolaria of Peru. In the autumn of 2018, nearly 120 United Nations Member States supported the proposal for inclusion of this topic in the ILC agenda in the framework of the debate in the General Assembly Sixth Committee (Legal) of the Annual Report of the International Law Commission.4 The topic was moved to the active agenda of the International Law Commission in the summer of 2019, during its 71st Session,5 and it is to be expected that the ILC as an institution could make a meaningful contribution by studying the possible legal impacts of these complex and new legal challenges that affect different areas of international law, by promoting a comprehensive legal approach to sea-level rise in relation to international law and in close contact with States. The purpose of this chapter is, thus, to present briefly the ILC new agenda topic on “Sea-level rise in relation to International Law” and it shall follow closely the syllabus approved by the Commission.6

1 See, inter alia, Boyle (2016), Camprubí (2016), Caron (2009), Freestone (1991, 2013), Gerrard and Wannier (2013), Hayashi (2011), McAdam (2010, 2012), McAdam et al. (2016), Rayfuse (2010, 2011), Rayfuse and Scott (2012), Schofield (2009a, b), Schofield and Freestone (2013), Soons (1990), Stoutenburg (2015) and Vidas (2014). 2 ILA Sidney Conference, Report of the Committee on International Law and Sea Level Rise (2018). See also, Vidas et al. (2015, 2019). 3 ILC, Report on the Work of the Seventieth Session (2018), “Sea-Level Rise in relation to International Law” (Annex B). 4 The Sixth Committee considered the ILA 2018 Annual Report at its 20th to 30th and 35th meetings, from 22 to 26 October, on 30 and 31 October and on 13 November 2018 (See Docs. A/C.6/73/SR.20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 and 35). 5 ILC, Report on the Work of the Seventy-First Session (2019), “Sea-Level Rise in relation to International Law” (Chapter X). 6 ILC, Report on the Work of the Seventieth Session (2018), “Sea-Level Rise in relation to International Law” (Annex B).

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2 The “Sea-Level Rise in Relation to International Law” Proposal at the International Law Commission The ILC was established by the United Nations General Assembly, in 1947, to undertake the mandate of the Assembly, under Article 13(1)(a) of the Charter of the United Nations to “initiate studies and make recommendations for the purpose of . . . encouraging the progressive development of international law and its codification.” The ILC has, over the past 70 years, carried out an impressive amount of work regarding the most fundamental areas of international law such as the Law of Treaties, the Law of State Responsibility, the Law of State Succession, etc. In its early years, it also made a significant contribution regarding the Law of the Sea, having produced the initial set of draft articles that later became the Geneva Conventions of 1958 relating to the Territorial Sea and the Contiguous Zone, the High Seas, the Continental Shelf and the Fishing and Conservation of the Living Resources of the High Seas. More recently, and in areas relating to the protection of the environment, it included in its agenda topics such as “Protection of the Atmosphere” and “Protection of the Environment in relation to Armed Conflicts”, which work is still ongoing. There have been calls from within the ILC, from Member States and also from academia for the ILC to take up topics not only from a more traditional nature, but also that reflect new developments in International Law and the pressing concerns of the international community as a whole. The topic of “Sealevel Rise in relation to International Law” falls neatly in that later category and thus prompted a proposal to include the topic in the agenda of the ILC as explained above, along the following lines.7 Sea-level rise has become in recent years a subject of increasing importance for a significant part of the international community—more than 70 States are or are likely to be directly affected by sea-level rise, a group which represents more than one third of the States of the international community. Indeed. this phenomenon is already having an increasing impact upon many essential aspects of life for coastal areas, for low-lying coastal States and small island States, and especially for their populations. Another quite large number of States is likely to be indirectly affected (for instance, by the displacement of people or the lack of access to resources). Sea-level rise has become a global phenomenon and thus creates global problems, impacting on the international community as a whole. The Fifth Assessment Report of the Intergovernmental Panel on Climate Change of 2013 estimated that the global mean sea-level rise is likely to be between 26 and 98 cm by the year 2100.8 In 2015, in paragraph 14 of the 2030 Agenda for Sustainable Development, the United Nations General Assembly recognized that: “Climate change is one of the greatest challenges of our time and its adverse impacts undermine the ability of all countries to achieve sustainable development. Increases in global temperature, sea-level rise, ocean ILC, Report on the Work of the Seventieth Session (2018), “Sea-Level Rise in relation to International Law” (Annex B). 8 Stocker (2013). 7

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acidification and other climate change impacts are seriously affecting coastal areas and low-lying coastal countries, including many least developed countries and small island developing States. The survival of many societies, and of the biological support systems of the planet, is at risk.” Among the several impacts of climate change is sea-level rise. According to scientific studies and reports, such as the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, this phenomenon is likely to accelerate in the future. As a result, the inundation of low-lying coastal areas and of islands will make these zones less and less habitable or uninhabitable, resulting in their partial or full depopulation. These factual consequences of sea-level rise prompt a number of important questions relevant to international law. For instance, what are the legal implications of the inundation of low-lying coastal areas and of islands upon their baselines, upon maritime zones extending from those baselines and upon delimitation of maritime zones, whether by agreement or adjudication? What are the effects upon the rights of States in relation to those maritime zones? What are the consequences for statehood under international law should the territory of a State disappear? What protection do persons directly affected by sea-level rise enjoy under international law? These questions should be examined through an in-depth analysis of existing international law, including treaty and customary international law, in accordance with the mandate of the ILC, which is the progressive development of international law and its codification. This effort will contribute to the endeavours of the international community to ascertain the degree to which current international law is able to respond to these issues and where there is a need for States to develop practicable solutions in order to respond effectively to the issues prompted by sea-level rise. There has been a high level of interest and support for the topic to be taken up by the ILC by States in the United Nations General Assembly. Furthermore, the Government of the Federated States of Micronesia put forward a formal proposal in 2018 for inclusion of a topic on the Long-Term Programme of Work of the International Law Commission entitled “Legal Implications of Sea-level Rise”, which was taken into account in the preparation of the syllabus approved by the ILC.

3 Consideration of the Topic by Other Bodies: The International Law Association Committee on International Law and Sea Level Rise The ILA is a private association founded in Brussels in 1873. Its objectives, under its Constitution, are “the study, clarification and development of international law, both public and private, and the furtherance of international understanding and respect for international law”. The ILA has consultative status, as a non-governmental organisation, with a number of the United Nations specialised agencies.

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The topic of sea-level rise was initially examined by the ILA Committee on Baselines under the International Law of the Sea, whose report was considered at the Sofia Conference (2012).9 The 2012 report recognized “that substantial territorial loss resulting from sea-level rise is an issue that extends beyond baselines and the law of the sea and encompasses consideration at a junction of several parts of international law.” As a consequence, the ILA in 2012 established a new Committee on International Law and Sea Level Rise. That Committee decided to focus its work on three main issue areas: the law of the sea; forced migration and human rights; and issues of statehood and international security. An interim report of that Committee, which was presented at the Johannesburg Conference in 2016,10 focused on issues regarding the law of the sea and migration/ human rights. Another report was considered at the Sydney Conference, which completed the Committee’s work on the Law of the Sea issues.11 The ILA Sidney Conference of 19–24 August 2018 adopted Resolution 5/2018 on the basis of the Report of the Committee on International Law and Sea Level Rise.12 The relevant paragraphs of the Resolution regarding Law of the Sea issues read as follows: APPRECIATING that sea level rise is likely to have a major impact on the coastal features from which maritime zones are measured, causing uncertainties as to the determination of the breadth and extent of maritime zones in accordance with the law of the sea, as well as possible uncertainties regarding agreed or adjudicated maritime boundaries; ENDORSES the views of the Committee that: – any proposals in this area should aim to facilitate orderly relations between States and, ultimately, the avoidance of conflicts, bearing in mind that one of the principal motivations of the United Nations Convention on the Law of the Sea is to contribute to the maintenance of international peace and security; and – in the formulation of proposals for the progressive development of international law, the dominant considerations should be the need to avoid uncertainty about the extent and limits of maritime zones and location of boundaries and to avoid incentives artificially to preserve baselines physically in order to keep the outer limits of maritime zones; NOTES that the Committee has presented evidence of the emergence of State practice, particularly in the South Pacific region, indicating that small island States intend to maintain the baselines and limits of their current maritime zones established in accordance with the 1982 Law of the Sea Convention for the future, notwithstanding physical coastline changes brought about by sea level rise; ENDORSES the proposal of the Committee that, on the grounds of legal certainty and stability, provided that the baselines and the outer limits of maritime zones of a coastal or an archipelagic State have been properly determined in accordance with the 1982 Law of the

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ILA Sofia Conference, Report of the Committee on Baselines under the International Law of the Sea (2012). 10 ILA Johannesburg Conference, Interim Report of the Committee on International Law and Sea Level Rise (2016). 11 ILA Sidney Conference, Report of the Committee on International Law and Sea Level Rise (2018). 12 ILA Sidney Conference, Report of the Committee on International Law and Sea Level Rise (2018).

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Sea Convention, these baselines and limits should not be required to be recalculated should sea level change affect the geographical reality of the coastline; ENDORSES ALSO the Committee’s proposal that the interpretation of the 1982 Law of the Sea Convention in relation to the ability of coastal and archipelagic States to maintain their existing lawful maritime entitlements should apply equally to maritime boundaries delimited by international agreement or by decisions of international courts or arbitral tribunals; CONFIRMS that the Committee’s recommendations regarding the maintenance of existing maritime entitlements are conditional upon the coastal State’s existing maritime claims having been made in compliance with the requirements of the 1982 Law of the Sea Convention and duly published or notified to the Secretary-General of the United Nations as required by the relevant provisions of the Convention, prior to physical coastline changes brought about by sea level rise.13

Further, the 2018 ILA Report of the Committee on International Law and Sea Level Rise proposed nine principles with commentary comprising the “Sidney Declaration of Principles on the Protection of Persons Displaced in the Context of Sea Level Rise.”14 These nine Principles on the Protection of Persons Displaced in the Context of Sea Level Rise relate to the following aspects: – The Primary Duty and Responsibility of States to Protect and Assist Affected Persons; – The Duty to Respect the Human Rights of Affected Persons; – The Duty to Take Positive Action; – The Duty to Cooperate; – Evacuation of Affected Persons; – Planned Relocations of Affected Persons; – Migration of Affected Persons; – Internal Displacement of Affected Persons; and – Cross-Border Displacement of Affected Persons.15 The mandate of the ILA Committee on International Law and Sea Level Rise has been extended until 2022 to continue the study of the statehood question and other relevant issues of international law.

13 ILA Sidney Conference, Report of the Committee on International Law and Sea Level Rise (2018). 14 ILA Sidney Conference, Report of the Committee on International Law and Sea Level Rise (2018). 15 ILA Sidney Conference, Report of the Committee on International Law and Sea Level Rise (2018).

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4 The International Law Commission Proposal: Scope of the Topic and Questions to be Addressed The work of the ILA Committee on International Law and Sea Level Rise constituted an important background to the proposal made in the ILC, in particular the work undertaken in the two areas just outlined above: law of the sea and migration/ human rights. Considering that sea-level rise produces the inundation of low-lying coastal areas and of islands, such has consequences in three main areas that the ILC has proposed to study: (a) law of the sea; (b) statehood; and (c) protection of persons affected by sea-level rise.16 These three issues reflect the legal implications of sea-level rise for the three constituent elements of the State (territory, population and government/Statehood) and are thus interconnected and should be examined together. The ILC approach is intended to deal only with the legal implications of sea-level rise. It does not deal with protection of environment, climate change per se, causation, responsibility and liability. It does not intend to provide a comprehensive and exhaustive scoping of the application of international law to the questions raised by sea-level rise, but to outline some key issues. The three areas to be examined should be analysed only within the context of sea-level rise notwithstanding other causal factors that may lead to similar consequences. It is suggested that due attention should be paid, where possible, to distinguish between consequences related to sea-level rise and those from other factors. According to the ILC proposed study, the suggested topic will not propose modifications to existing international law, such as the UNCLOS. Having in mind the above considerations, the proposal is that ILC analyses the following questions related to the legal implications sea-level rise:

4.1

Law of the Sea Issues

(i) Possible legal effects of sea-level rise on the baselines and outer limits of the maritime spaces which are measured from the baselines; (ii) Possible legal effects of sea-level rise on maritime delimitations; (iii) Possible legal effects of sea-level rise on islands as far as their role in the construction of baselines and in maritime delimitations; (iv) Possible legal effects of sea-level rise on the exercise of sovereign rights and jurisdiction of the coastal State and its nationals in maritime spaces in which boundaries or baselines have been established, especially regarding the exploration, exploitation and conservation of their resources, as well as the rights of

16 ILA, Report on the Work of the Seventieth Session (2018), “Sea-Level Rise in relation to International Law” (Annex B).

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third States and their nationals (e.g., innocent passage, freedom of navigation, fishing rights); (v) Possible legal effects of sea-level rise on the status of islands, including rocks and on the maritime entitlements of a coastal State with fringing islands; (vi) Legal status of artificial islands, reclamation or island fortification activities under international law as a response/adaptive measures to sea-level rise. As it was stated above, the Commission will not only deal with Law of the Sea issues but will also look into the following issues relating to statehood and the protection of persons affected by sea-level rise.

4.2

Statehood Issues

(i) Analysis of the possible legal effects on the continuity or loss of statehood in cases where the territory of island States is completely covered by the sea or becomes uninhabitable; (ii) Legal assessment regarding the reinforcement of islands with barriers or the erection of artificial islands as a means to preserve the statehood of island States against the risk that their land territory might be completely covered by the sea or become uninhabitable; (iii) Analysis of the legal fiction according to which, considering the freezing of baselines and the respect of the boundaries established by treaties, judicial judgments or arbitral awards, it could be admitted the continuity of statehood of the island States due to the maritime territory established as a result of territories under their sovereignty before the latter become completely covered by the sea or uninhabitable; (iv) Assessment of the possible legal effects regarding the transfer—either with or without transfer of sovereignty—of a strip or portion of territory of a third State in favour of an island State whose terrestrial territory is at risk of becoming completely covered by the sea or uninhabitable, in order to maintain its statehood or any form of international legal personality; (v) Analysis of the possible legal effects of a merger between the island developing State whose land territory is at risk of becoming completely covered by the sea or uninhabitable and another State, or of the creation of a federation or association between them regarding the maintenance of statehood or of any form of international legal personality of the island State.

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Issues Related to the Protection of Persons Affected by Sea-Level Rise

(i) The extent to which the duty of States to protect the human rights of individuals under their jurisdiction apply to consequences related to sea-level rise; (ii) Whether the principle of international cooperation can be applied to help States cope with the adverse effects of sea-level rise on their population; (iii) Whether there are any international legal principles applicable to measures to be taken by States to help their population to remain in situ, despite rising sea levels; (iv) Whether there are any international legal principles applicable to the evacuation, relocation and migration abroad of persons caused by the adverse effects of sea-level rise; (v) Possible principles applicable to the protection of the human rights of persons displaced internally or that migrate due to the adverse effects of sea-level rise.

5 The Proposed Method of Work of the International Law Commission on This Topic The most usual method of work of the ILC consists in work driven by a Special Rapporteur that proposes draft articles, draft conclusions, draft principles or draft guidelines for consideration of the plenary of the Commission and the drafting committee. However, the ILC has also resorted to other formats, namely to Study Groups. Perhaps the most well-known example is the Study Group on the “Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law”. The proposed format of a Study Group17 for the topic “Sea-level rise in relation to International Law” will allow for a mapping exercise of the legal questions raised by sea-level rise and its interrelated issues. The Study Group will analyse the existing international law, including treaty and customary international law, in accordance with the mandate of the ILC, which is to perform codification of customary international law and its progressive development. This effort will contribute to the endeavours of the international community to respond to these issues and to assist States in developing practicable solutions in order to respond effectively to the issues prompted by sea-level rise. The work of the Study Group should be based on papers that address the different issues raised by the topic, namely with regard to (a) law of the sea, (b) statehood and (c) protection of persons affected by sea-level rise. This approach will allow for sufficient flexibility of approach and will

ILC, Report on the Work of the Seventieth Session (2018), “Sea-Level Rise in relation to International Law” (Annex B).

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be able to actively involve members of the ILC in the work on this topic. It is to be recalled that the ILC has used this method successfully in the past, a relevant example being the Study Group on the Fragmentation of International Law (2002–2006), as it was just mentioned. The work of the Study Group will be based on the practice of States, international treaties, other international instruments, judicial decisions of international and national courts and tribunals, and the analyses of scholars—all these in a systemic and integrative approach.

6 The Topic Satisfies the International Law Commission Requirements for Selection of a New Topic In order to select new topics for inclusion in its programme of work, the ILC is guided by the criteria that it had agreed upon at its fiftieth session (1998), namely that the topic: (a) should reflect the needs of States in respect of the progressive development and codification of international law; (b) should be at a sufficiently advanced stage in terms of State practice to permit progressive development and codification; (c) should be concrete and feasible for progressive development and codification; and (d) that the ILC should not restrict itself to traditional topics, but could also consider those that reflect new developments in international law and pressing concerns of the international community as a whole. The topic “Sea-Level Rise in relation to International Law” reflects the needs of States: more than a third of the existing States of the international community are likely to be directly affected by the sea-level rise and are keenly interested in this topic. Moreover, there may be broader impacts to the international community at large, since another large number of States are likely to be indirectly affected by sea-level rise (for instance, by the displacement of people, the lack of access to resources). Sea-level rise has become a global phenomenon, and thus creates global problems, impacting in general on the international community of States as a whole. This interest is shared by a variety of States, from very different geographic locations, including landlocked countries, which shows the amplitude of the States’ interest. There is an emerging State practice—namely with regard to issues related to the law of the sea (such as maintaining baselines, construction of artificial islands, and coastal fortifications) and the protection of persons affected by sea-level rise (such as the relocation of local communities within the country or to other countries, and the creation of humanitarian visa categories). In addition, relevant practice exists, inter alia, in relation to governments in exile as examples of maintaining statehood in absence of control over territory. The consequences of sea-level rise, which may be defined as affecting the very existence of a number of the States concerned, and, in any case, essential parameters of statehood like territory, population and governance as well as the enjoyment of the essential resources for the prosperity of these nations, call for an early analysis of its legal implications.

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The topic is feasible because the work of the Study Group will be able to identify areas ripe for possible codification and progressive development of international law and where there are gaps. At the same time, the aspects to be examined have a high degree of concreteness. Furthermore, this topic reflects new developments in international law and pressing concerns of the international community as a whole.18

7 Conclusion One of the most important and pressing current global challenges to the Law of the Sea is the issue of climate change and its adverse effects, namely those arising from rising sea-levels. This phenomenon of sea-level rise also presents challenges to other areas of International Law such as those related to statehood and the protection of persons affected by sea-level rise. Sea-level rise as a result of climate change is accelerating around the world and the Intergovernmental Panel on Climate Change predicts that the average global sea-level could rise by up to a metre by 2100. Small island States, particularly low-lying ones, are at the front lines of sea-level rise. The impacts on communities are more varied and complex than is often assumed. Sea-level rise causes salinization which threatens crops and livelihoods, coastal erosion results in more destructive storm surges and natural disasters, and rising sea-levels will submerge whole atolls. While low-lying islands are already feeling some of these impacts, in the coming years more than 70 States are likely to be directly impacted by sea-level rise, including continental States with coastal areas. While sea-level rise poses significant development, economic and environmental challenges, the phenomenon also involves complex questions in International Law, such as: – What are the legal implications of sea-level rise upon baselines and therefore maritime zones that have been delimitated from those baselines? – What are the consequences for statehood under International Law should a territory of a State disappear? Or if an island becomes uninhabitable? – What protection do persons directly affected by sea-level rise enjoy under international law? The need to analyse these questions from a legal point of view and to discuss possible solutions has thus led the ILC to decide including the topic “Sea-level rise in relation to International Law” in its Long-Term Programme of Work in 2018 and to move it rapidly to its active agenda in 2019. It is proposed that the final outcome of the work of the ILC be a Final Report of the Study Group on “Sea-Level Rise in relation to International Law”, accompanied by a set of Conclusions of the work of the Study Group. After the presentation of the Final Report of the Study Group, it

ILC, Report on the Work of the Seventieth Session (2018), “Sea-Level Rise in relation to International Law” (Annex B).

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could be considered whether and how to pursue further the development of the topic or parts of it within the ILC or other fora. It is hoped that the presentation of a comprehensive study on “Sea-Level Rise in relation to International Law” can take place at the end of the current quinquennium (2017–2021) of the ILC or, most likely, during the course of the next one (2022–2026).

References Boyle A (2016) Climate change, ocean governance and UNCLOS. In: Barrett J, Barnes R (eds) Law of the sea: UNCLOS as a living treaty. British Institute of International and Comparative Law, London, pp 225–231 Camprubí A (2016) Statehood under water: challenges of sea-level rise to the continuity of Pacific Island States. Brill, Leiden Caron D (2009) Climate change, sea level rise and the coming uncertainty in oceanic boundaries: a proposal to avoid conflict. In: Van Dyke J (ed) Maritime boundary disputes, settlement processes, and the law of the sea. Brill, Leiden, pp 1–18 Freestone D (1991) International law and sea level rise. In: Churchill R, Freestron D (eds) International law and global climate change. Kluwer Law International, London, pp 109–125 Freestone D (2013) Can the UN climate regime respond to the challenges of sea level rise. Univ Haw Law Rev 35:671–685 Gerrard M, Wannier G (eds) (2013) Threatened island nations: legal implications of rising seas and a changing climate. Cambridge University Press, Cambridge Hayashi M (2011) Sea level rise and the law of the sea: future options. In: Vidas D, Schei P (eds) The World Ocean in globalisation. Brill, Leiden, pp 187–206 McAdam J (2010) Disappearing states, statelessness and the boundaries of international law. UNSW Law Research Paper 2010(2) McAdam J (2012) Climate change, forced migration, and international law. Oxford University Press, Oxford McAdam J et al (eds) (2016) International law and sea-level rise: forced migration and human rights. FNI Report 1/2016 Rayfuse R (2010) International law and disappearing states: utilising maritime entitlements to overcome the statehood dilemma. UNSW Law Research Paper 2010(52) Rayfuse R (2011) International law and disappearing states: maritime zones and the criteria for statehood. Environ Policy Law 41(6):281–287 Rayfuse R, Scott S (eds) (2012) International law in the era of climate change. Edward Elgar, Cheltenham Schofield C (2009a) Shifting limits: sea level rise and options to secure maritime jurisdictional claims. Carbon Clim Law Rev 2009(4):405–416 Schofield C (2009b) The trouble with Islands: the definition and role of Islands and rocks in maritime boundary delimitation. In: Hong S, Van Dyke J (eds) Maritime boundary disputes, settlement processes, and the law of the sea. Brill, Leiden, pp 19–38 Schofield C, Freestone D (2013) Options to protect coastlines and secure maritime jurisdictional claims in the face of global sea level rise. In: Gerrard M, Wannier G (eds) Threatened island nations: legal implications of rising seas and a changing climate. Cambridge University Press, Cambridge, pp 141–165 Soons A (1990) The effects of a rising sea level on maritime limits and boundaries. Neth Int Law Rev 37(2):207–232 Stocker T (ed) (2013) Climate change 2013: the physical science basis: Working Group I contribution to the Fifth assessment report of the intergovernmental panel on climate change. Cambridge University Press, Cambridge

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Stoutenburg J (2015) Disappearing island states in international law. Brill, Leiden Vidas D (2014) Sea-level rise and international law. Clim Law 4(1–2):70–84 Vidas D et al (2015) International law and sea level rise: the new ILA committee. ILSA J Int Comp Law 21(2):157–167 Vidas D, Freestone D, McAdam J (2019) International law and sea level rise – report of the international law association committee on international law and sea level rise. Brill, Leiden

Documents International Law Association Johannesburg Conference, Interim Report of the Committee on International Law and Sea Level Rise (2016) International Law Association Sidney Conference, Report of the Committee on International Law and Sea Level Rise (2018) International Law Association Sofia Conference, Report of the Committee on Baselines under the International Law of the Sea (2012) International Law Commission, Report on the Work of the Seventieth Session (2018), “Sea-Level Rise in relation to International Law” (Annex B) International Law Commission, Report on the Work of the Seventy-First Session (2019), “Sea-Level Rise in relation to International Law” (Chapter X)

Patrícia Galvão Teles Member of the United Nations International Law Commission (ILC). Co-chair of the International Law Commission’s Study Group on ‘Sea-level rise in relation to International Law’. Professor of international law at the Autonomous University of Lisbon. Senior Legal Consultant at the Legal Department of the Portuguese Ministry of Foreign Affairs.

Chapter 9

The Impact of UN Sanctions on Commercial Shipping Activities Richard L. Kilpatrick

Abstract To promote its mandate of maintaining international peace and security, the United Nations Security Council has recently utilized a variety of economic sanctions tactics in the maritime sector. Concerned with maritime practices aiding the development of illicit weapons programmes, these sanctions strategies have targeted shipping activities by blacklisting vessels and companies, prohibiting certain cargo import and export, authorizing vessel inspections and interdiction, and outlawing vessel bunkering and marine insurance coverage. Although these measures are designed to promote multilateral policy goals, they also impose regulatory burdens on shipping industry participants attempting to engage in legitimate trade. This chapter explores the interplay between contemporary maritime sanctions techniques and commercial shipping practice. It first examines the sanctions tactics employed at the United Nations Security Council to target maritime practices linked to global security challenges. It then surveys efforts within commercial shipping circles to comply with and adapt to these layers of evolving regulations.

1 Introduction Multilateral economic sanctions are increasingly used to promote international peace and security. This involves substantial coordination between international policymakers and private industry. While economic sanctions often focus on restrictions in the banking and finance sectors of the global economy, the maritime shipping industry is also critically impacted. As regulatory regimes evolve to respond to geopolitical developments, the shipping industry must adapt to this changing commercial landscape. This adaptability to regulation is integral for shipping industry participants to maintain legal compliance. The sanctions themselves also depend on these commercial actors to generate the intended coercive force.

R. L. Kilpatrick (*) College of Charleston, School of Business, Charleston, SC, USA e-mail: [email protected] © Springer Nature Switzerland AG 2020 M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea, https://doi.org/10.1007/978-3-030-42671-2_9

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In recent years, the United Nations Security Council has utilized a variety of maritime sanctions in attempts to pressure states such as the Islamic Republic of Iran (Iran) and the Democratic People’s Republic of Korea (North Korea) to abandon illicit weapons programmes. These sanctions have included regulating commercial shipping by blacklisting vessels, prohibiting import and export of certain cargo, authorizing vessel inspections and interdiction, and even outlawing vessel bunkering and marine insurance coverage. The threat of sanctions has been a disincentive for states to violate international norms, and the possibility of their reversal serves as an incentive for diplomatic engagement. Meanwhile, impacted commercial actors have been caught in the middle, forced to adapt as the regulations evolve. With contemporary geopolitical challenges as the backdrop, this chapter explores the interplay between multilateral economic sanctions and shipping practice. It first examines UN Security Council authority to impose measures of economic coercion in accordance with the UN Charter. It then explores recent strategies used by the Security Council to target shipping activities. The chapter then turns to responses within the shipping industry, by considering industry attempts to comply with and adapt to these sanctions. For illustrative purposes, the chapter focuses primarily on contemporary sanctions implemented by UN Security Council Resolutions from the turn of the century to the present. Consequently, it focuses predominantly on Iran and North Korea, which have been two of the most heavily sanctioned states during this period that have not been simultaneously subject to conventional military intervention. In an effort to concentrate on multilateral sanctions, this chapter avoids a detailed analysis of supplementary sanctions implemented by other supranational or national entities, including the European Union and the United States.

2 The UN Security Council and Its Power to Impose Economic Sanctions Chapter V of the UN Charter grants the Security Council a central role in maintaining international peace and security.1 The Security Council is made up of fifteen members, including the five permanent members of China, France, Russia, the United Kingdom, and the United States. The other ten non-permanent members rotate for two-year terms. While Article 2(7) of the UN Charter commits UN organs not to ‘intervene in matters which are essentially within the domestic jurisdiction of any state’, the same document gives substantial power to the Security Council. Despite the limited representation of this exclusive group, under Article 25, ‘[t]he

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Charter of the United Nations And the Statute of the International Court of Justice, Chapter V, http://www.un.org/en/charter-united-nations/index.html. Article 24 reads, ‘In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf’.

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Members of the United Nations agree to accept and carry out the decisions of the Security Council. . .’2 Under Chapter VI of the UN Charter, in response to disputes that ‘endanger the maintenance of international peace and security’3 the Security Council may ‘recommend appropriate procedures or methods of adjustment’.4 Acting under this power, the Security Council may issue non-binding recommendatory decisions. However, under its Chapter VII powers, the Security Council has the enhanced authority to ‘determine the existence of any threat to the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken. . .to maintain or restore international peace and security’.5 Acting pursuant to these Chapter VII powers, once the Security Council identifies a threat to peace, it is deemed to have the power to bind Member States by recommendations and decisions. Articles 40–42 contained in Chapter VII provide specific guidance on these options. Article 40 gives the Security Council the power to ‘call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable’.6 Article 41 provides the Security Council with the power to ‘. . .decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures’.7 Article 41 further identifies economic coercion as a tool to implement these measures, including the possibility of ‘complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations’.8 Under Article 42, the Security Council may consider additional action ‘by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations’.9 Relying on these authorities, the Security Council has regularly issued Resolutions in response to challenges falling within its purview. This has included responding to geopolitical developments by creating economic sanctions regimes that focus on regulating commercial activity in lieu of the use of force.10 In recent years, these Resolutions have explicitly focused on shipping activities, creating

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Id., art 25. Id., art 33. 4 Id., art 36. 5 Id., art 39. 6 Id., art 40. 7 Id., art 41. 8 Ibid. 9 Id., Art. 42; See also Fink (2013). 10 Note that these approaches have been used by the Security Council to respond to developments in Rhodesia, Iraq, Libya, Yugoslavia, Haiti, Sierra Leone, and others. For an overview of these UN sanctions regimes not involving the use of force see Shaw (2017). 3

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compliance challenges within the highly mobile and multi-facetted maritime industry.11

3 UN Sanctions Strategies in the Maritime Sector 3.1

The Development of Smart Sanctions

Prior to the turn of the century, after Saddam Hussein’s invasion of Kuwait, the international community responded by establishing a trade embargo against Iraq. Under UNSC Resolution 661 (1990), the Security Council prohibited all Member States from importing ‘all commodities and products originating in Iraq or Kuwait. . .’12 This prohibition was supported by a maritime blockade under UNSC Resolution 665, which authorized robust embargo enforcement under measures designed to ‘halt all inward and outward maritime shipping in order to inspect and verify their cargos and destinations’.13 These tactics pressured the Saddam Hussein regime, but they were also criticized as being too broad and contributing to widespread famine in the region.14 The unintended effects of these expansive sanctions contributed to the rise of a new strategy of ‘smart sanctions’.15 The purpose of this approach is to more specifically put pressure on targeted individuals and businesses while remaining cognizant of the humanitarian impact within a sanctioned state. Instead of utilizing wholesale embargoes, the focus shifted to travel bans, asset freezes, and other more precise measures.16 In the wake of the 2001 terrorists attacks in the United States on 9/11, international policy makers further refined and developed innovative sanctions tactics through the use of the global financial system.17 Individuals and businesses thought to be involved in terrorism financing were targeted to prevent access to the institutional infrastructure necessary to engage in international transactions. These methods were soon applied to nation states in order to respond to geopolitical challenges through coercive means without necessarily utilizing conventional warfare.18 Such sanctions were developed to target political leaders, commodity sectors, financial institutions, and transportation infrastructure.19 11

Kraska (2019), Allen (2019) and Ma (2016). UNSC Res 661 (1990). 13 UNSC Res 665 (1990). 14 Joyner (2003). 15 Friedman (2012), Nephew (2017) and Early (2015). 16 Nephew (2017). 17 Zarate (2013) and Nephew (2017). 18 Blackwill and Harris (2017). 19 Kanji (2017) and Michel (2004). 12

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Maritime Sanctions: Iran and North Korea

Since 2006, the Security Council has issued a number of Resolutions focusing on weapons proliferation concerns in both Iran and North Korea. These coastal states naturally rely on maritime transport to support their economies and to facilitate the development of their weapons programmes. Recognizing the maritime lifeline to these regimes, the Security Council has increasingly utilized targeted regulation of shipping activities as a mechanism to coerce these governments into behaviour consistent with international norms.20 Iran is the second largest country in the Middle East and one of the top producers of oil in the world. It has traditionally benefitted from hosting significant global shipping activities along its coasts and has served as an important trading partner with Europe in particular. While Iran has at times had a hostile relationship with the United States and also the United Kingdom, in the early 2000s Iran’s investment in nuclear infrastructure led to concern from others in the international community. After the UN’s International Atomic Energy Agency (IAEA) was unable to confirm Iran’s nuclear programme was for peaceful purposes, the UN Security Council in 2006 began imposing economic sanctions on Iran.21 Over the next four years, the Security Council issued multiple Resolutions designed to deter Iran’s nuclear ambitions. A number of provisions within these Resolutions specifically restrict maritime activities with a nexus to Iran. Several years after these sanctions were implemented, diplomacy appeared to prevail in the form of the Joint Comprehensive Plan of Action (JCPOA).22 Under the JCPOA, Iran agreed with the so-called P5+1 (the five permanent members of the Security Council plus Germany and the European Union) to halt its nuclear programme in exchange for rolling back the UN, EU, and US sanctions. This agreement was reflected in the Annex of UNSC Res 2231 (2015). While the US under President Donald Trump unilaterally withdrew from the JCPOA in 2018, the other parties, including the EU, have taken a number of steps to preserve the agreement.23 North Korea, on the other hand, has been highly isolated for decades since hostilities in the Korean Peninsula ended in an armistice. Despite its curious approach to trade and diplomacy, the ‘Hermit Kingdom’ has nonetheless relied on imports and exports to sustain its economy and population of over 25 million. It has also used trade to generate the revenue and technological capacity to build an illicit nuclear weapons programme. In response to a series of long-range missile and nuclear weapons tests, North Korea has been the target of many rounds of Security 20

Huish (2017), Zou (2011) and Klein (2011). See Transcript of Direct General’s Remarks at Conclusion of IAEA Board Meeting, March 8, 2006. 22 UNSC Res 2231 (2015). 23 See Joint Statement on the Re-imposition of US Sanctions Due to its Withdrawal from the Joint Comprehensive Plan of Action (JCPOA) 6 August, 2018. 21

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Council economic sanctions since the early 1990s. After Chairman Kim Jong-un succeeded his father Kim Jong-il to become Supreme Leader of North Korea in 2011, these weapons programmes intensified. The Security Council has responded with a variety of Resolutions, utilizing similar tactics to those employed against Iran. Again, these have increasingly focused on maritime activities.24 With economic pressure from the sanctions mounting, in 2017 North Korea once again engaged in a number of provocative weapons tests, including firing long-range missiles over the Japanese prefecture of Hokkaido. This brought the Korean peninsula to the precipice of war, as US president Donald Trump infamously threatened North Korea with ‘fire and fury like the world has never seen’.25 But tempers cooled, and less than a year later, President Trump and Chairman Kim met at a diplomatic summit at the Singaporean resort island of Sentosa.26 The Trump-Kim summit initially appeared to be successful with the announcement that North Korea would take steps to verifiably reverse its nuclear weapons programme in exchange for a roll back of international sanctions. At the time of this writing in early 2019, all sanctions remain in place as these diplomatic efforts continue, but no further Security Council Resolutions have been issued on the matter since 2017. In response to these threats in both Iran and North Korea, the international community refined targeted sanctions techniques through a variety of maritime regulations. These tactics attempt to apply economic pressure without the use of a naval blockade and in a more precise method than a general embargo. An overview of these specific techniques are explored below.

3.3

Blacklists of Maritime Entities and Vessels

One of the Security Council’s tactics for targeted sanctions is designating certain entities as subject to asset freezes, travel bans, or other financial restrictions. By naming individuals, businesses, and organizations as explicitly subject to Member State prohibitions of financial transactions, the Security Council can avoid generalized prohibitions that have more sweeping economic impact. The Security Council has designated a number of shipping businesses or statecontrolled maritime assets in its Resolutions, effectively ‘blacklisting’ them by obliging Member States to freeze funds and prohibit other financial transactions involving them. For example, UNSC Res 1929 (2010) explicitly imposes restrictions on Iran’s state maritime assets, including, ‘the entities of the Islamic Republic of Iran Shipping Lines (IRISL). . .and to any person or entity action on their behalf or at their direction’.27 Annex III to the same Resolution provides a list of shipping

24

Kraska (2019) and Huish (2017). Baker and Sang-Hun (2017). 26 Rich (2018). 27 UNSC Res 1929 (2010) para 19. 25

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companies designated under the heading, ‘Entities owned, controlled, or acting on behalf of the Islamic Republic of Iran Shipping Lines (IRISL)’. These include shipping companies based in Iran, but also in Europe. Employing similar tactics in the context of North Korea, the Security Council has also blacklisted specific vessels and shipping companies. UNSC Res 2270 (2016) names a firm called Ocean Maritime Management as a designated entity subject to asset freezes.28 The same Resolution’s Annex III provides a list of 31 vessels subject to sanctions as ‘economic resources controlled or operated’ by the North Korean government.29 This list includes the vessel names as well as their International Maritime Organization (IMO) vessel registration numbers. The same Resolution further mandates a broad prohibition for ‘any vessel’ to enter the ports of Member States if there is ‘information that provides reasonable grounds to believe the vessel is owned or controlled, directly or indirectly, by a designated individual or entity. . .’30

3.4

Prohibitions on Vessel Registration, Bunkering, and Insurance

In reference to specific blacklists, the Security Council has also placed restrictions on registering, re-registering and certifying vessels controlled by sanctioned entities and states. For example, UNSC Res 2270 (2016) prohibits Member States from ‘registering vessels in the DPRK, obtaining authorization for a vessel to use the DPRK flag, and from owning, leasing, operating, providing any vessel classification, certification or associated service, or insuring any vessel flagged by the DPRK. . .’31 UNSCR Res 2321(2016) is even more specific. It requires Member States to ‘deregister any vessel that is owned, controlled, or operated by the DPRK, and further decides that Member States shall not register any such vessel that has been de-registered by another Member State. . .’32 It also expands the application of UNSC Res 2270 to include a prohibition on ‘all leasing, chartering or provision of crew services to the DPRK. . .’33 Targeting Iran, UNSC Res 1929 (2010) requires Member States to prohibit transactions involving all ‘Iranian-owned or –controlled vessels, including chartered vessels. . .’34 The same resolution also prohibits ‘bunkering services, such as

28

UNSC Res 2270 (2016). UNSC Res 2270 (2016) para 23. 30 Id., Annex II-Annex III. 31 UNSC Res 2270 (2016). See also UNSCR 2321 (2016) para 9; UNSC Res 2397 (2017) para 12. 32 UNSCR Res 2321(2016) para 22. 33 Ibid. 34 UNSC Res 1929 (2010). 29

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provision of fuel or supplies’ to this broadly defined class of vessels.35 It further requests that Member States communicate any information regarding IRISL attempts to avoid application of the sanctions by ‘renaming or re-registering’ vessels.36 The Security Council implemented a particularly impactful approach in the Iran context by prohibiting insurance coverage over certain vessels with an Iran nexus. UNSC Res 1929 (2010) specifically calls on Member States to ‘. . .prevent the provision of financial services, including insurance or re-insurance. . .’ if there are ‘reasonable grounds to believe’ that this could contribute to Iran’s weapons programmes.37 A similar approach has been utilized in the North Korea context under UNSC Res 2321 (2016), which requires Member States to prohibit ‘insurance or re- insurance services to vessels owned, controlled, or operated, including through illicit means, by the DPRK. . . .’38

3.5

Prohibitions on Importing and Exporting Designated Cargo

The Security Council Resolutions have also prohibited trade of certain cargo to Iran and North Korea. The most fundamental prohibition covers nuclear technology and military equipment. But the Security Council has also incrementally applied more comprehensive prohibitions in certain commodity sectors in efforts to enhance diplomatic pressure. In the Iran context, as early as 2006, the Security Council mandated that Member States take measures to stop ‘the supply, sale, or transfer directly or indirectly from their territories, or by their nationals or using their flag vessels’ of designated goods and equipment that could ‘. . .contribute to Iran’s enrichment-related, reprocessing or heavy water-related activities, or to the development of nuclear weapon delivery systems. . .’39 Enumerating the precise scope of goods prohibited, UNSC Res 1737 (2006) incorporates a list compiled by the IAEA describing materials that could be used for nuclear weapon development purposes.40 Subsequent resolutions include prohibitions on using vessels flying the flag of a Member State to facilitate Iran’s procurement of ‘any arms or related material’.41 Likewise, Member States are prohibited from procuring banned items from Iran.

35

Id. Id. 37 Id. 38 UNSC Res 2321 (2016). 39 UNSC Res 1737 (2006) para 3. 40 Ibid. 41 UNSC Res 1929 (2010) para 8. 36

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Similar Resolutions prohibit transfer of nuclear technology and conventional arms to North Korea.42 But the current list of prohibited cargo in and out of North Korea is much more comprehensive. Resolutions focusing on prohibiting Member State exports to North Korea have included luxury goods, such as jewellery, precious stones, yachts, and race cars.43 Resolutions have also focused on broad sectorial bans of commodities. In 2017, these included limitations and prohibitions on the supply, sale or transfer of crude oil and other refined petroleum products.44 Prohibitions also include industrial machinery, iron, steel and other metals.45 Recent measures also prohibit North Korea from exporting to generate revenue. In a string of Resolutions in 2016 and 2017, the Security Council banned North Korea from selling coal, iron ore, rare earth minerals, precious metals, and seafood.46 Most recently, it added electrical equipment, machinery, agricultural products, and wood to that list. To define the scope of the prohibition, the Security Council referenced entire chapters of the Harmonized Commodity Description and Coding System used worldwide in product classification for customs purposes.47

3.6

Authorization for Cargo Inspections and Maritime Interdiction

To effectuate the import/export bans, the Security Council has authorized and required vessel inspections of potential sanctions violators. While acknowledging restrictions on jurisdiction under international law of the sea and customary international law, recent Resolutions have provided Member States with sweeping authority to inspect vessels in their territorial waters and in some circumstances interdict vessels on the high seas. In the Iran context, under UNSC Res 1803 (2007), the Security Council authorized all States to, ‘inspect the cargoes to and from Iran, of aircraft and vessels, at their airports and seaports, owned or operated by Iran Air Cargo and Islamic Republic of Iran Shipping Line, provided there are reasonable grounds to believe that the aircraft or vessel is transporting goods prohibited”.48 This Resolution specifically limits the authorization of such inspections to be in accordance with ‘national legal authorities and legislation and consistent with international law, in

42

UNSC Res 1718 (2006) para 8. UNSC Res 1718 (2006) para 8; UNSC Res 2094 (2013), Annex IV. 44 UNSC Res 2375 (2017). 45 Id. 46 See UNSC Res 2270 (2016) para 29–30; UNSC Res 2231 (2016) para 26–28; UNSC Res 2371 (2017) para 8. 47 UNSC Res 2397 (2017) para 6. 48 UNSC Res 1803 (2007). 43

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particular the law of the sea. . .’49 UNSC Res 1929 (2010) further explains these limits, noting that States ‘consistent with international law. . .may request inspections of vessels on the high seas with the consent of the flag State. . .’50 Security Council authorization for vessel inspections in the North Korea context has evolved further. While UNSC Res 1874 (2009) similarly calls on all States to inspect cargo, consistent with international law, when it has ‘reasonable grounds to believe’ the cargo contains prohibited items, it further calls on Member States to inspect such vessels on the high seas ‘with consent of the flag state.’51 If that does not work, under UNSC Res 2087 (2013), the UN Security Council Sanctions Committee will issue an ‘Implementation Assistance Notice’ if the vessel ‘refused to allow an inspection after such an inspection has been authorized by the vessel’s Flag State or if any DPRK-flagged vessel has refused to be inspected. . .’52 UNSC Res 2094 (2013) expands on this practice by requiring States to inspect ‘all cargo within or transiting through their territory that has originated in the DPRK, or that is destined for the DPRK, or has been brokered or facilitated by the DPRK or its nationals. . .’53 If any vessel refuses inspection after it has been authorized by the flag State (or if it is a DPRK-flagged vessel), the Security Council requires all States to ‘. . .deny such a vessel entry to their ports. . .’54 Under UNSC Res 2375 (2017), if the flag State does not consent to inspection on the high seas and does not direct the vessel to proceed to a convenient port for inspection, then the Security Council’s Sanctions Committee ‘shall consider designating the vessel’ for targeted sanctions.55 Once designated, the flag State is required to ‘immediately deregister’ the vessel.56 The Resolution further notes that inspections may only be carried out by ‘warships and other ships or aircraft clearly marked and identifiable as being on government services. . .’and that inspections are not authorized for vessels ‘entitled to sovereign immunity under international law’.57 Most recently, concerned about illicit North Korean exports facilitated through ‘deceptive maritime practices’, the Security Council under UNSC Res 2397 (2017) requires Member States to ‘seize, inspect, and freeze (impound) any vessel’ in its territorial waters, if it has ‘reasonable grounds to believe’ the vessel was involved in prohibited activities.58

49

Id. UNSC Res 1929 (2010). 51 UNSC Res 1874 (2009). 52 UNSC Res 2087 (2013). 53 UNSC Res 2094 (2013). 54 UNSC Res 2094 (2013) para 17. 55 UNSC Res 2375 (2017). 56 Id. para 8. 57 Id. para 10. 58 UNSC Res 2397 (2017) para 9. 50

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4 Adapting to UN Maritime Sanctions: Shipping Industry Implications The Security Council’s sanctions tactics in the maritime sector have generated substantial discourse among industry participants. Commercial shipping is heavily regulated by international conventions, domestic laws, and customary practice, so industry actors are relatively used to oversight from national and supranational bodies, including the International Maritime Organization which is an organ of the United Nations itself. But unlike other sources of commercial regulation, Security Council sanctions can appear rapidly and unexpectedly in response to security crises. These may immediately impose burdens on shipping interests, with regulators perhaps unaware of their sweeping impact. The challenge of compliance with sanctions blacklists is well-known outside of the shipping industry. Such regulatory tactics have been employed heavily in the banking sector to combat terrorism and money laundering enterprises. These regulations have spawned robust sanctions compliance initiatives by financial institutions, such as transnational banking entities. For some shipping industry participants, blacklist compliance may be a less familiar process. Compliance requires more than simply consulting the lists promulgated by the Security Council to insulate business relationships from designated entities and vessels. As the Resolutions themselves indicate, sanctioned entities may attempt to disguise their identity by renaming and re-registering the designated company or vessel. This places an enhanced duty on shipping actors to engage in thorough ‘know your customer’ inquiries. These blacklists of sanctioned entities are not designed to be exhaustive, as some Resolutions prohibit transactions involving any vessels reasonably believed to be linked to sanctioned regimes or activities. This includes not only vessels listed by the Resolutions, but also those owned, controlled, and even ‘chartered’ by the sanctioned government. Due to the complex and sometimes confidential nature of chartering and sub-chartering, this adds an additional ill-defined layer of scrutiny for shipowners and shipbrokers. This may also be particularly challenging for bunker service providers, who are explicitly banned from providing fuel services to sanctioned vessels. Compliance with blacklists is further complicated by the very nature of transport processes in which intermediaries regularly arrange transportation on behalf of undisclosed principals. This extends compliance obligations across the transport chain to intermediaries such as freight forwarders, brokers, and other logistics providers organizing cargo movements for customers. Explicit cargo import and export prohibitions raise a different set of challenges. These may impact a variety of commercial actors, including shippers and consignees contracting for the sale of goods, carriers moving cargo in the liner trade, shipowners and charterers under time and voyage charters, bunker service providers, and the various types of transport intermediaries facilitating such transactions. For any of these entities, there may be a burden not only to ascertain the true identity of the parties to their transactions, but also to ensure the authenticity of cargo declarations contained in legal documents, such as bills of lading, commercial invoices, and

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others used for customs clearance. To protect against fraudulent documentation, it may be necessary to scrutinize transactions through physical cargo inspections as actors may attempt to circumvent sanctions by concealing the true nature of the goods or their intended destinations. To hedge against the risk of breaching sanctions in the vessel chartering contexts, shipowners and charterers have begun including special ‘sanctions clauses’ in their charterparty contracts. Industry organizations, such as the Baltic and International Maritime Council (BIMCO) and Intertanko have published model clauses designed to allocate such risks.59 These normally shift the risks away from the shipowner and onto the charterer who is responsible for directing the vessel’s commercial undertakings.60 Such provisions may be added to standard charterparty forms under a ‘rider’ clause. However, sanctions clauses are also already included in some of the most recent wholesale updates to the BIMCO charterparty form contracts.61 Such provisions allow a shipowner to refuse orders of a charterer if it believes the orders would subject it to liability for breaching sanctions. Sanctions tactics enhancing state authority to inspect vessels can also raise the possibility of expensive diversions, detentions and commercial delays. Recent sanctions, particularly towards North Korea, provide robust authority and responsibility for state actors to engage in vessel inspections both in their territorial waters and even on the high seas with consent of the flag State.62 While the burden of inspection enforcement remains on UN Member States and their coast guards, navies, and other agencies, it is commercial actors who bear the risk of vessel delays and cargo seizures that could result from such inspections. To protect against these losses, industry participants must not only remain in clear communication with coastal authorities for inspection purposes, but also anticipate these challenges by allocating the risk of delays through express contract provisions and special trade disruption insurance products. The prohibitions on renaming and reregistering vessels appears to be an obligation falling squarely on UN Member States. Indeed, this is the case for registries operated under Member State government agencies. Singapore, China, and Hong Kong, for example, are all major flags States that utilize governmental offices to oversee vessel registration within their jurisdictions. For instance, the Singapore Registry of Ships is an organ of the Maritime and Port Authority of Singapore, which is a public entity operated by a UN Member State.63 But some other major flags, particularly the flags of convenience selected by maritime businesses to reduce

59

Stuhrmann (2019). See e.g. BIMCO, Sanctions Clause for Time Charter Parties (2020); BIMCO, Sanctions Clause for Voyage Charter Parties (2020). 61 See e.g. New York Produce and Exchange Time Charter 2015, Cl 46. 62 Kraska (2019), Allen (2019) and Mclaughlin (2002). 63 See Singapore Registry of Ships, Maritime and Port Authority of Singapore, https://www.mpa. gov.sg/web/portal/home/singapore-registry-of-ships. 60

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regulatory costs, are not actually housed within a government agency structure.64 Instead, some of the most popular flags of convenience utilize private entities to facilitate their operations. The Republic of the Marshall Islands is a prime example. Although it is one of the most utilized flag States in the world, the registry itself is actually controlled by a ‘privately held maritime and corporate registry service’ based in Reston, Virginia, USA.65 The Liberian registry is another similar example.66 For ship registries of this kind, the burden of sanctions compliance regarding prohibitions on vessel renaming/re-registration is actually imposed on privately facilitated registries rather than only the UN Member States themselves.67 Among the various sanctions tactics in the maritime sector, the prohibitions on marine insurance coverage on sanctioned vessels has created perhaps the most commercial controversy. UNSC Res 1929 (2010) requires Member States to prevent ‘insurance or re-insurance’ over vessels linked to Iran’s weapons programmes. Particularly in the Iran context, marine insurance providers immediately expressed concern over such mandates, including some in the industry bemoaning being used as a tool of international policy.68 The uncertainty sparked particular ire in the United Kingdom, since London has long been home to the world’s largest marine insurance market at Lloyd’s.69 In response, adopting a similar approach to shipowners in the charterparty context, insurers have begun including sanctions clauses in their policies of marine insurance in order to hedge against the risk of breaching sanctions. These clauses allow termination of insurance cover on grounds of illegality if UN sanctions put the insurer at risk of non-compliance. Various versions of these clauses have been promulgated for different types of marine insurance, including hull and machinery policies, cargo policies, and P&I Club rules.70 In recent years, a string of cases in the English courts have hinged on the impact of sanctions on insurance policies.71 64

Anderson (1996). For more information on the Marshall Islands flag, see the website of International Registries, Inc. at https://www.register-iri.com/index.cfm?action¼about. 66 For more information on the Liberia flag, see the website the Liberian Registry http://www.liscr. com/about-liberian-registry. 67 Prohibitions on certification of blacklisted vessels raises similar challenges of placing international obligations on privately controlled vessel certification organizations. 68 Osler (2017). 69 North Korea, while similarly subject to UN Resolutions prohibiting insurance coverage, has perhaps caused less outcry among industry participants. While the sanctions are equally harsh in that insurance and re-insurance of blacklisted vessels is prohibited, North Korea has weaker historical integration with the global economy than Iran. The primary challenge for insurers in the North Korea context is to remain cognizant of deceptive practices such as re-naming and re-registering vessels, which can impact compliance when agreeing to provide cover for new customer vessels. 70 See e.g. Lloyd’s, Sanctions Guidance – Sanctions Clauses, 17 October, 2014. 71 See e.g. IRISL v Steamship Mutual Underwriting Association [2010] EWHC 2661; Arash Shipping v Groupama [2011] 2 Lloyd’s Rep 607; Mamancochet Mining Ltd v Aegis Manageing Agency Ltd [2018] EWHC 2643. 65

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A 2015 letter sent by the Permanent UN Representatives of Australia and Singapore to the President of the Security Council reflects the broad commercial impact of these UN sanctions on the shipping industry.72 This letter, which was subsequently circulated as a document of the Security Council, summarizes findings of an academic conference held in Singapore entitled, ‘Managing Sanctions Risk in the Maritime and Transportation Sector’. The letter highlights the impact of the UN sanctions on the shipping industry and identifies the ways in which the sanctions cause compliance challenges not only to importers and exporters, but also to ancillary maritime transport services, such as freight forwarders, port operators, insurers, and other financial service providers.

5 Conclusion Recent UN sanctions demonstrate the contemporary maritime flavour of promoting international peace and security. Given the apparent success of sanctions in engaging diplomatic talks with both Iran and North Korea, these methods are likely to serve as a model in the future. While economic sanctions have perhaps become an entrenched part of the regulatory landscape, they do place commercial entities in the uncomfortable position of being involuntary tools of international policy. It is challenging and expensive for shipping interests to track evolving regulations and to comply with them by heavily scrutinizing each transaction they undertake. Frustrations arising out of these efforts are understandable, but it must also be recognized that these sanctions are a comparably benign alternative to a major military conflict, which, at least in the short term, would be much more commercially disruptive. At the time of this writing in early 2019, the sanctions landscape towards Iran is particularly complex. When the JCPOA was agreed, many in the shipping industry eagerly awaited ‘implementation day’ in which trade activities with Iran would normalize. But this normalization has been slow. The Iran sanctions reportedly left a ‘legacy’ in which commercial actors were hesitant to engage in business with Iran even after the JCPOA was agreed due to fears of sanctions snap-back.73 In 2018, this was complicated further by the decision of the United States to withdrew from the JCPOA. Although the move was unilateral, many companies involved in maritime transport have ceased operations involving Iran over concerns that they would be heavily penalized or banned from access to the US market if they failed to comply with US law. The approach towards North Korea appears to be more universally aligned. During the past five years, the Security Council has imposed round after round of sanctions designed to convince North Korea to abandon its nuclear weapons

72 Letter dated 15 January 2015 from the Permanent Representatives of Australia and Singapore to the United Nations Addressed to the President of the Security Council, S/2015/28. 73 Salthouse (2017).

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programmes. At the height of the threatening exchange between President Trump and Chairman Kim in 2017, then United States Secretary of State Rex Tillerson argued for measures approaching a maritime blockade, remarking ‘in addition to implementing all UN sanctions, the international community must take additional measures to enhance maritime security, including the right to interdict maritime traffic’ to North Korea.74 While diplomacy has for the moment put an end to such proposals, current United States Secretary of State Michael Pompeo has nonetheless recently categorized North Korea and Iran together as ‘outlaw regimes—rogue states that defy international norms’.75 As the diplomatic community explores coercive options for peaceful resolution of these issues, the economic pressure in the maritime sector will be executed not only by nation states or international organizations but by compliance from the shipping industry. Despite the awkward position of being used as a tool of international law enforcement, shipping industry participants, like other commercial actors, will be careful to react. To do so, they must strategically respond to sometimes disjointed geopolitical discourse by adapting their commercial dealings to the realities of modern sanctions risk.

References Allen C (2019) The peacetime right of approach and visit and effective security council sanctions enforcement at sea. Int Law Stud 95:400–429 Anderson HE (1996) III, The nationality of ships and flags of convenience: economics, politics, and alternatives. Tulane Marit Law J 21:139–170 Blackwill RD, Harris JM (2017) War by other means. Geoeconomics and statecraft. Harvard University Press, Cambridge Early BR (2015) Busted sanctions: explaining why economic sanctions fail. Stanford University Press Fink MD (2013) Maritime embargo operations: naval implementation of UN sanctions at sea under Articles 41 and 42 of the UN Charter. Neth Int Law Rev:73–92 Friedman U (2012) Smart sanctions: a short history. Foreign Policy:1–7 Huish R (2017) How to sink the hermit kingdom: improving maritime sanctions against North Korea. Can Nav Rev 13(2):5–10 Joyner CC (2003) United Nations sanctions after Iraq: looking back to see ahead. Chic J Int Law 4:329–354 Kanji L (2017) Moving targets: the evolution and future of smart sanctions. Harv Int Rev:1–13 Klein N (2011) Maritime security and the law of the sea. Oxford University Press Kraska J (2019) Maritime interdiction of North Korean ships under UN sanctions. Berkeley J Int Law 37:369–392 Ma Y (2016) Enforcing the United Nations Security Council’s Arms Embargo on the Democratic People’s Republic of Korea: a case study of the legal consequences of the Cong Chon Gan Incident. Chin (Taiwan) Yearb Int Law Aff 34:104–140

74 Reuters, US Top Diplomat Urges New Steps to Press North Korea on Weapons Program, November 28, 2017. 75 Pompeo (2018).

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Mclaughlin R (2002) United Nations mandated naval interdiction operations in the territorial sea? Int Comp Law Q 51:249–278 Michel K (2004) War, terror and carriage by sea. Routledge Nephew R (2017) The art of sanctions: a view from the field. Columbia University Press, New York Pompeo M (2018) Confronting Iran: the Trump administration’s strategy. Foreign Aff 97(6) Shaw M (2017) International law, 8th edn. Cambridge University Press, Cambridge Zarate J (2013) Treasury’s war: the unleashing of a new era of financial warfare. PublicAffairs, New York Zou K (2011) Maritime enforcement of United Nations Security Council Resolutions: use of force and coercive measures. Int J Mar Coast Law 26:235–261

Cases Arash Shipping v Groupama [2011] 2 Lloyd’s Rep 607 IRISL v Steamship Mutual Underwriting Association [2010] EWHC 2661 Mamancochet Mining Ltd v Aegis Manageing Agency Ltd [2018] EWHC 2643

Online Publications Baker P and Sang-Hun C, Trump Threatens ‘Fire and Fury’ Against North Korea if It Endangers US, The New York Times, 8 August 2017 CIA World Factbook, East & Southeast Asia: North Korea: https://www.cia.gov/library/publica tions/the-world-factbook/geos/kn.html CIA World Fact Book, Middle East: Iran https://www.cia.gov/library/publications/the-worldfactbook/geos/ir.html International Registries, About: Maritime Services: https://www.register-iri.com/index.cfm? action¼about Joint Statement on the Re-imposition of US Sanctions Due to its Withdrawal from the Joint Comprehensive Plan of Action (JCPOA) 6 August 2018.: https://eeas.europa.eu/headquarters/ headquarters-homepage/49141/joint-statement-re-imposition-us-sanctions-due-its-withdrawaljoint-comprehensive-plan-action_en Letter dated 15 January 2015 from the Permanent Representatives of Australia and Singapore to the United Nations Addressed to the President of the Security Council, S/2015/28 Liberian Registry, About the Liberian Registry: http://www.liscr.com/about-liberian-registry Lloyd’s, Sanctions Guidance – Sanctions Clauses, 17 October 2014 Osler D, Sanctions on Shipping: Failing Since 432 BCE, Lloyd’s List, 7 December 2017 Reuters, US Top Diplomat Urges New Steps to Press North Korea on Weapons Program, November 28, 2017 Motoko Rich, Trump and Kim Arrive in Singapore for Historic Summit Meeting’ New York Times, 10 June 2018 Salthouse M, Maritime Risk International, Legacy of the Iran Sanctions Programme for the Shipping Industry, 21 March 2017 Singapore Registry of Ships, Maritime and Port Authority of Singapore: https://www.mpa.gov.sg/ web/portal/home/singapore-registry-of-ships

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Stuhrmann, ‘BIMCO Publishes New Sanctions Clauses to Meet Geopolitical Challenges’ 20 December 2019 Transcript of Direct General’s Remarks at Conclusion of IAEA Board Meeting, March 8 2006.: https://www.iaea.org/newscenter/mediaadvisories/transcript-of-director-generals-remarks-atconclusion-of-iaea-board-meeting-8-march-2006

Other BIMCO, New York Produce and Exchange Time Charter (2015) BIMCO, Sanctions Clause for Time Charter Parties (2020) BIMCO, Sanctions Clause for Voyage Charter Parties (2020) Charter of the United Nations and the Statute of the International Court of Justice (1945) UNSC Res 661 (1990) UNSC Res 665 (1990) UNSC Res 1718 (2006) UNSC Res 1737 (2006) UNSC Res 1803 (2007) UNSC Res 1874 (2009) UNSC Res 1929 (2010) UNSC Res 2087 (2013) UNSC Res 2094 (2013) UNSC Res 2231 (2016) UNSC Res 2270 (2016) UNSC Res 2321 (2016) UNSC Res 2371 (2017) UNSC Res 2375 (2017) UNSC Res 2397 (2017)

Richard L. Kilpatrick, Jr. Assistant Professor of business law at the College of Charleston in South Carolina (USA). Teaches courses in commercial law and international business and writes primarily on trade and maritime law issues. Previously taught and practiced law in Chicago, and also served as Visiting Research Fellow at the National University of Singapore, Centre for Maritime Law.

Chapter 10

Security Council’s Contribution to the Evolution of the Law of the Sea: Avant Garde or Self-Limitation? Kiara Neri

Abstract Undoubtably, the UNSC has played a significant role in the recent evolution of the Law of the Sea. This role is very clear when we focus on the derogations to the core principles of the law of the sea that UNSC has granted along the years (in the framework of the enforcement of sanctions and embargoes, to fight various traffics at sea—migrants; drugs; crude oil, etc.—or to combat piracy and armed robbery). These authorizations have enabled an evolution of the practice at sea, but they are based on exceptions, derogations granted on a case to case basis. The chapter wishes to explore the following question: have UNSC resolutions given rise to an evolution of the rule? The links between the Resolutions at stake and the formal sources of international law are unclear. Can these resolutions really lead to a modification of the fundamental rules applicable at sea, conventional or customary? The exemption clauses contained in the UNSC resolution excluding the formation of a customary norm are challenging. Indeed, when it authorizes Member States to penetrate Somali territorial waters to combat armed robbery or when it authorizes the boarding of foreign ships in the high seas to fight migrant smuggling, the Council indicates that these resolutions “shall not affect the rights or obligations or responsibilities of member states under international law” and “shall not be considered as establishing customary international law”. In doing so, UNSC is affecting the scope of its own contribution to the evolution of the law of the sea.

K. Neri (*) Jean Moulin Lyon 3 University, Faculty of Law, Lyon, France e-mail: [email protected] © Springer Nature Switzerland AG 2020 M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea, https://doi.org/10.1007/978-3-030-42671-2_10

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1 Introduction Within the United Nations, maritime issues fall traditionally under the competence of the General Assembly.1 In this framework, the organ issues a Resolution once per year on the Oceans and the Law of the Sea.2 It is under the auspices of the Assembly that the main contributions to the evolution of the Law of the Sea were adopted, first and foremost the convocation of the Third Conference which led to the adoption of the United Nations Convention on the Law of the Sea (hereafter UNCLOS) in December 1982. The Secretary General has also made a significant contribution to this issue through the years, notably through his reports.3 On the contrary, the Security Council is not the natural organ to address maritime matters, since its mandate is focused on international peace and security. Therefore, during the first decades of the life of the UN, the Council only raised maritime issues when they had security ramifications, such as the use of the sea during armed conflict4 or the implementation of sanctions and embargoes at sea.5 Since 2008, the role of the Council has evolved and resolutions have been adopted concerning the Law of the Sea outside of the traditional framework of an armed conflict or the implementation of sanctions, with the Council starting to consider the impact of maritime threats to international peace and security, notably regarding the Somali crisis.6 Since then, the United Nations Security Council (hereafter UNSC) has undoubtedly played a more significant role in the evolution of the Law of the Sea. UNSC resolutions have focused on broader maritime issues such as criminal acts at sea, but also fisheries and the marine environment, creating a body of resolutions concerning the sea.7 The content of these resolutions is of a different nature. On the one hand, the UNSC has adopted resolutions recalling the main principles of the Law of the Sea

1 Under Article 10 of the Charter of the United Nations, the General Assembly may discuss any questions or any matters within the scope of the Charter. Besides which, under Article 13, the General Assembly shall initiate studies and make recommendations for the purpose of promoting international co-operation and encouraging the progressive development of international law and its codification. 2 The last was adopted on 5 December 2017, Oceans and the Law of the Sea, Resolution A/RES/72/ 73. 3 The Secretary General issues a general report on Oceans and Law of the Sea once a year to prepare the annual resolution of the Assembly (6 September 2017, A/72/70). Besides, the Assembly can ask the Secretary General to work on specific issues, for instance, a report on Anthropogenic underwater noise was adopted on 20 March 2018, A/73/68. 4 See for instance Resolution 540 (1983), 31 October 1983, para. 5. For an analysis, see David (1987), p. 164. 5 See for instance UNSC Resolution 221 (1966), 9 April 1966 (Rhodesia) or 713 (1991), 25 September 1991 (Yougoslavia). 6 On piracy off the coast of Somalia and its legal implications, see (among others): Nair (2017), pp. 103–111; Ciciriello and Mucci (2016), pp. 188–205; Guilfoyle (2013), pp. 35–60. 7 For an analysis of the maritime resolutions of the Council, see Neri (2018), pp. 11–28.

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and asking States to implement them, but on the other, the Council has also adopted resolutions granting derogations from essential rules, such as the exclusive jurisdiction of the flag State on the high seas or the exclusive jurisdiction of the coastal State in its territorial sea. These authorizations have enabled the evolution of practice at sea, but they are based on exceptions, derogations granted on a case-by-case basis. Therefore, can the UNSC’s influence on the evolution of the Law of the Sea go so far as to lead to a modification of the rule? This examination questions the links between these resolutions and the formal sources of international law. Can these resolutions really lead to a modification of the fundamental rules applicable at sea, in particular create new customary rules? The evolution of practice at sea is clear, but the exemption clauses contained in the Security Council’s resolutions excluding the formation of a customary norm are challenging. Indeed, when the UNSC authorises Member States to enter Somali territorial waters to combat armed robbery8 or when it authorises the boarding of foreign ships in the high seas,9 the Council indicates that these resolutions “shall not affect the rights or obligations or responsibilities of Member States under international law”10 and “shall not be considered as establishing customary international law”.11 In doing so, the Security Council is affecting the scope of its own contribution to the evolution of the Law of the Sea. Nevertheless, when the Law of the Sea is limited and does not provide adequate legal tools, the recourse to the UNSC has been an efficient alternative to fight crimes at sea and a valid legal solution, especially because it offers States a title for intervention when the Law of the Sea does not. The UNSC has thus developed significant practice in either supporting general rules governing the Law of the Sea or derogating from them. In itself, this is already a contribution to the evolution of the Law of the Sea. But the contribution would be even greater if the practice resulted in the evolution of the rule itself. Investigating the possibility of a modification of the rules under the influence of UNSC resolutions leads to a contrasted conclusion: while its action often impacts the International Law of the Sea and the practice of States (Sect. 2), it is real contribution to the evolution of rules is impeded by a general attitude of self-limitation (Sect. 3).

8

Resolution 1816 (2008), 6 November 2008. See Pancracio (2018), pp. 31–41. 10 Resolution 1816 (2008), para. 9. 11 Resolution 2146 (2014), 19 March 2014, para. 9. 9

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2 The Council’s Influence on the Evolution of State Practice at Sea The UNSC’s influence on the Law of the Sea is first and foremost a contribution to its implementation by the Member States (Sect. 2.1). But it has also paradoxically granted authorisations to derogate from core Law of the Sea principles, creating new practices at sea (Sect. 2.2).

2.1

Resolutions Supporting the Implementation of the Law of the Sea

The UNSC often ‘recalls’ Law of the Sea rules and the provisions of UNCLOS in its resolutions. In doing so, it supports the implementation of these rules. For instance, Resolution 2240 (2015) on migrant smuggling recalls Member State obligations to implement resolutions in compliance with their obligations under the Law of the Sea, especially regarding the protection of the marine environment and the safety of navigation.12 But it plays, as well, a more specific role in the particular areas of the marine environment and conservation of biodiversity. In recent resolutions, the UNSC has had a ‘preventive role’ in promoting the preservation of the marine environment through urging Member States to implement relevant international law and in asking them to cooperate. For instance, regarding the situation in Somalia, the Council has recalled Somalia’s sovereignty with respect to natural resources including fisheries off its coasts.13 But it has also gone further and asked Member States and international organizations to “support the Federal Government of Somalia in its efforts to address illegal, unreported, and unregulated fishing in its Exclusive Economic Zone” (hereafter EEZ). According to the Council, there is a direct link between piracy and Illegal, Unreported and Unregulated (hereafter IUU) Fishing14 that requires States and international organizations to further intensify their support to the Federal Government of Somalia in enhancing Somalia’s capacity to prevent, deter and eliminate IUU Fishing.15 Likewise, in Resolution 2343 (2017), the UNSC ‘called upon’ Member States to assist Guinea-Bissau in ensuring control of its territorial

12 Resolution 2240 (2015), 9 October 2015, para. 10: “calls upon Member States and regional organizations carrying out activities under paragraphs 7, 8 and this paragraph, to provide for the safety of persons on board as an utmost priority and to avoid causing harm to the marine environment or to the safety of navigation”. 13 Resolution 1851 (2008), 16 December 2008. 14 Resolution 2316 (2016), 9 November 2016, Preamble: “noting the complex relationship between IUU fishing and piracy, recognizing that IUU fishing accounts for millions of dollars in lost revenue for Somalia each year, and can contribute to destabilization among coastal communities”. 15 See Ricard (2018), pp. 141–165.

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waters and EEZ, especially “air traffic and surveillance of maritime security [. . .] in particular to fight drug trafficking and transnational organized crime, as well as illegal fishing in Guinea-Bissau’s territorial waters and exclusive economic zone and other cases of illegal exploitation of natural resources”.16 The UNSC has now accepted a new role in promoting the preservation of the marine environment and acting in favour of maritime security.

2.2

Resolutions Granting Derogations to the Law of the Sea

The Security Council has granted a number of derogations to the core principles of the Law of the Sea extending the powers of States. On the high seas it has authorised States, in specific situations, to depart from the rule of the exclusive jurisdiction of the Flag State.17 Moreover, it has authorised foreign States to enter the territorial waters of coastal States to conduct law enforcement operations contrary to the principle of the sovereignty of the coastal State’s territorial sea.18

2.2.1

Exceptional Authorization to Enter the Territorial Sea

The Security Council has authorised States to enter the territorial sea of other States to conduct police operations but, unlike resolutions concerning the high seas, these authorizations are very rare and limited. Two principle situations have given rise to such resolutions: the enforcement of sanctions or embargoes, and the suppression of armed robbery. With respect to the first situation, the UNSC authorised, for example, States to use such measures commensurate with the specific circumstances as may be necessary under the authority of the Security Council to enforce the present resolution and its other relevant resolutions, including in the territorial sea of the Federal Republic of Yugoslavia (Serbia and Montenegro).19

This kind of wide authorization is very rare and was directly linked to the specific situation of the Yugoslavian conflict at the time. The 1990s were indeed a particular decade where the Council was more inclined to adopt coercive measures. It is thus very unlikely that authorizations such as these will be adopted again by the Council in the foreseeable future. Apart from that very unique situation, the Security Council has allowed States to enter the territorial sea of another State in the Somalian context. Indeed, it decided:

16

Para. 17. Art. 92 UNCLOS. 18 Art. 2 UNCLOS. 19 Resolution 820 (1993), 17 April 1993, para. 29. 17

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that for a period of six months from the date of this resolution, States cooperating with the Transitional federal government, Republic of Somalia (hereafter TFG) in the fight against piracy and armed robbery at sea off the coast of Somalia, for which advance notification has been provided by the TFG to the Secretary-General, may: (a) Enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea, in a manner consistent with such action permitted on the high seas with respect to piracy under relevant international law; and (b) Use, within the territorial waters of Somalia, in a manner consistent with action permitted on the high seas with respect to piracy under relevant international law, all necessary means to repress acts of piracy and armed robbery.20

Here again, the context is very specific. Somalia is a failed State, unable to conduct law enforcement operations in its territory in general and in its territorial sea in particular. More importantly, the Somali government (recognized by the international community) had given its formal consent prior to the adoption of Resolution 1816 (2008). The crucial importance of the prior consent of the coastal State is very clear in the contemporary Libyan context. The European Union launched, in 2015, its operation EUNAVFOR MED Sophia in the Mediterranean Sea, with the agenda of conducting operations to fight migrant smuggling on the high seas, but also in the territorial sea of Libya. EUNAVFOR MED shall: [. . .] in a second phase, [. . .] in accordance with any applicable UN Security Council Resolution or consent by the coastal State concerned, conduct boarding, search, seizure and diversion, on the high seas or in the territorial and internal waters of that State, of vessels suspected of being used for human smuggling or trafficking, under the conditions set out in that Resolution or consent.21

But Libya has never given its consent to do so, and Security Council has been reluctant to grant such an authorization without the consent of the State. As a result, this phase of Operation SOPHIA was never authorised, nor implemented by the EU. Therefore, one may conclude that Security Council has granted very specific derogations that are unlikely to give rise to a general practice allowing third States to conduct law enforcement operations in the territorial sea of the coastal State. But the situation is very different when it comes to enforcement powers on the high seas, where the authorizations decided by the Council are more frequent and where the consent of the flag State is less essential.

2.2.2

Frequent Derogations to the Exclusive Jurisdiction of the Flag State on the High Seas

Unlike the previous authorizations to conduct law enforcement operations within the territorial waters of another State, there is an abundant practice, which is developing 20

Resolution 1816 (2008), para. 16 (a). Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED), Official Journal of the European Union, 19.5.2015, L 122/31, Art. 2(b)(ii). 21

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exceptions to the principle of the exclusive jurisdiction of the flag State on the high seas. In international law, abundant practice is likely to contribute to the evolution of the rule. It is thus necessary to look into the practice to determine if we can observe such an evolution. The Security Council has authorised third States, in specific situations, to inspect foreign ships on the high seas. For instance, Resolution 1973 (2011) on Libya: Calls upon all Member States, in particular States of the region, acting nationally or through regional organizations or arrangements, in order to ensure strict implementation of the arms embargo established by paragraphs 9 and 10 of resolution 1970 (2011), to inspect in their territory, including seaports and airports, and on the high seas, vessels and aircraft bound to or from the Libyan Arab Jamahiriya, if the State concerned has information that provides reasonable grounds to believe that the cargo contains items the supply, sale, transfer or export of which is prohibited by paragraphs 9 or 10 of resolution 1970 (2011) as modified by this resolution, including the provision of armed mercenary personnel, calls upon all flag States of such vessels and aircraft to cooperate with such inspections and authorises Member States to use all measures commensurate to the specific circumstances to carry out such inspections.22

In the same way, the Council has granted authorisations in the framework of fighting criminal activities at sea such as crude oil trafficking23 or human trafficking and migrant smuggling.24 The wording of these resolutions nevertheless contains limitations in terms of the authorisation. Indeed, Resolution 2146 (2014) “Authorizes Member States to inspect on the high seas vessels designated by the Committee pursuant to paragraph 11”.25 As a result, States cannot inspect any foreign ships on the high seas to fight crude oil traffic, but only the ships designated by the Committee created by the Council. Additionally, recent resolutions usually refer to the rights of flag States and request inspecting States to ask for their authorisation prior to the boarding of ships. For instance, Resolution 2240 (2015): 7. Decides, with a view to saving the threatened lives of migrants or of victims of human trafficking on board such vessels as mentioned above, to authorise, in these exceptional and specific circumstances, for a period of one year from the date of the adoption of this resolution, Member States, acting nationally or through regional organisations that are engaged in the fight against migrant smuggling and human trafficking, to inspect on the high seas off the coast of Libya vessels that they have reasonable grounds to suspect are being used for migrant smuggling or human trafficking from Libya, provided that such Member States and regional organisations make good faith efforts to obtain the consent of the vessel’s flag State prior to using the authority outlined in this paragraph [. . .] 9. Calls upon all flag States involved to cooperate with respect to efforts under paragraphs 7 and 8, and decides that Member States acting nationally or through regional organisations under the authority of those paragraphs shall keep flag States informed of

22 Resolution 1970 (2011), 26 February 2011, para. 11 and Resolution 1973(2011), 17 March 2011, para. 13. Bold added by the author. 23 Resolution 2146 (2014), 19 March 2014. 24 Resolution 2240 (2015). 25 Resolution 2146 (2014), para. 5.

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actions taken with respect to their vessels, and calls upon flag States that receive such requests to review and respond to them in a rapid and timely manner.26

Consequently, under this resolution, States have to seek the flag State’s consent “in good faith”, but the authorisation to inspect the foreign ship remains if the flag State fails to answer the request. Whereas in Resolution 1929 (2010) on Iran, the consent of the flag State seems to be required, with the Council simply asking flag States to cooperate with the inspections by authorising them. The resolution is formulated as follows: [the Council] notes that States, consistent with international law, in particular the law of the sea, may request inspections of vessels on the high seas with the consent of the flag State, and calls upon all States to cooperate in such inspections if there is information that provides reasonable grounds to believe the vessel is carrying items the supply, sale, transfer, or export of which is prohibited by paragraphs 3, 4 or 7 of resolution 1737 (2006), paragraph 5 of resolution 1747 (2007), paragraph 8 of resolution 1803 (2008) or paragraphs 8 or 9 of this resolution, for the purpose of ensuring strict implementation of those provisions.27

Sometimes, the authorisation to inspect is accompanied by an authorisation to seize and dispose of prohibited items, for instance in Resolution 1929 (2010) on Iran.28 These few examples show that every situation leads to a different response from the Council. The extent of the authorisation and its modalities varies from one situation to another. As a result, it is very difficult to identify a consistent practice in terms of inspecting foreign ships on the high seas in general. However, one can observe that, when a threat to international peace and security is identified by Security Council and sanctions have been adopted, the Council accompanies these sanctions by maritime measures in order to enforce them on the high seas. The quasiautomaticity of these measures questions the existence of a general right to inspect foreign ships on the high seas to enforce Security Council resolutions. The practice is not consistent enough to be able to give rise to such a general right and indicates that an express authorisation from the Council is still needed. However, this practice has limited the discretionary right of the flag States to grant consent to the boarding of their ships by foreign vessels on the high seas. Article 25 of the UN Charter29 combined with the wording of the resolutions adopting sanctions or embargoes,

26

Resolution 2240 (2015). Resolution 1929 (2010), 9 June 2010, para. 15. 28 Para 16. “Decides to authorise all States to, and that all States shall, seize and dispose of (such as through destruction, rendering inoperable, storage or transferring to a State other than the originating or destination States for disposal) items the supply, sale, transfer, or export of which is prohibited by paragraphs 3, 4 or 7 of resolution 1737 (2006), paragraph 5 of resolution 1747 (2007), paragraph 8 of resolution 1803 (2008) or paragraphs 8 or 9 of this resolution that are identified in inspections pursuant to paragraphs 14 or 15 of this resolution, in a manner that is not inconsistent with their obligations under applicable Security Council resolutions, including resolution 1540 (2004), as well as any obligations of parties to the NPT, and decides further that all States shall cooperate in such efforts”. 29 “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”. 27

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suggests that flag States have the obligation to cooperate with the inspection of the ships flying their flags on the high seas to enforce measures decided by the Council.

3 The Council’s Self-Limitation of Its Influence on the Law of the Sea The Security Council’s resolutions are always limited in time, scope and space, which makes it difficult to identify a general practice. In addition, the Council limits the legal effects of its own resolutions by inserting exclusion clauses into them (Sect. 3.1). Nevertheless, the legal effect of these clauses is still open for discussion (Sect. 3.2).

3.1

The Systematicity of the Exclusion Clauses

In the very famous Resolution 1816 (2008) on Somalia, the Council: [a]ffirms that the authorization provided in this resolution applies only with respect to the situation in Somalia and shall not affect the rights or obligations or responsibilities of member states under international law, including any rights or obligations under the Convention, with respect to any other situation, and underscores in particular that it shall not be considered as establishing customary international law, and affirms further that this authorization has been provided only following receipt of the letter from the Permanent Representative of the Somalia Republic to the United Nations to the President of the Security Council dated 27 February 2008 conveying the consent of the TFG.30

In the same way, resolution 2240 (2015): [a]ffirms that the authorisations provided in paragraphs 7 and 8 apply only with respect to the situation of migrant smuggling and human trafficking on the high seas off the coast of Libya and shall not affect the rights or obligations or responsibilities of Member States under international law, including any rights or obligations under UNCLOS, including the general principle of exclusive jurisdiction of a flag State over its vessels on the high seas, with respect to any other situation, and further affirms that the authorisation provided in paragraph 10 applies only in confronting migrant smugglers and human traffickers on the high seas off the coast of Libya.31

All the resolutions authorising a derogation to the Law of the Sea principles specify that they do not affect the rights or obligations or responsibilities of Member States under international law, including the International Law of the Sea. However, the specific reference to the formation of a customary rule is not automatic. For

30 31

Para. 9. Para. 11.

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instance, Resolution 2240 (2015) on migrant smuggling off the coast of Libya does not contain any reference to customary international law. In the framework of sanctions and embargoes, the Security Council rarely mentions the hypothetical formation of a customary rule, but it can nevertheless happen, for instance in Resolution 2146 (2014), the Council: [f]urther affirms that the authorization provided by paragraph 5 of this resolution applies only with respect to vessels that are the subject of a designation made by the Committee pursuant to paragraph 11 and shall not affect the rights or obligations or responsibilities of Member States under international law, including rights or obligations under the United Nations Convention on the Law of the Sea, including the general principle of exclusive jurisdiction of a flag state over its vessels on the high seas, with respect to other vessels and in any other situation, and underscores in particular that this resolution shall not be considered as establishing customary international law.32

3.2

Legal Effects of the Exclusion Clauses

These clauses aim at preventing a customary norm from arising from practice and States from applying the authorisations granted by UNSC to other situations when confronted with similar issues (i.e. the Gulf of Guinea for piracy, other parts of the Mediterranean Sea for migrant smuggling, etc.). If we accurately understand why the Council would insert these garde-fou, it nevertheless gives rise to a series of questions on the formation of customary international law and the powers of the UNSC. In other words, can the Security Council prevent the formation of a customary rule, especially if this rule would be based on practice arising from the implementation of its own resolutions? The draft conclusions of the International Law Commission on the identification of customary international law indicates that “[a] resolution adopted by an international organization or at an intergovernmental conference cannot, of itself, create a rule of customary international law.”33 It can only “provide evidence for establishing the existence and content of a rule of customary international law, or contribute to its development.”34 Hence, if a unilateral act of an international organisation cannot, of itself, create a customary rule, it cannot, of itself, prohibit its creation either. It must be established, on a case-by-case basis, if the two elements of customary international law are met, namely a consistent practice and opinio juris. That being said, the Council does not seem to want to prevent the formation of customary rules in general, but only to make sure that the authorisations given by it do not affect the rights and obligations under the International Law of the Sea. In other words, the Council intends to prevent the creation of such a rule if the practice is based on its

32

Para. 9. Conclusion 12 (1), 30 May 2016, A/CN.4/L.872, Text of the draft conclusions provisionally adopted by the Drafting Committee. 34 Id., Conclusion 12 (2). 33

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own resolutions. Nevertheless, the issue of the UNSC’s competence to impose these kind of restrictions remains, particularly when the practice has generalised and is not based solely on its resolutions anymore. For instance, a number of bilateral or multilateral treaties also authorise intervention in the territorial sea of another State to fight armed robbery (for instance the ReCAAP treaty for South East AsiaRegional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia, Tokyo, 11 November 2004) or other crimes such as drug trafficking.35 Establishing the existence of a practice by States is easy. Various States and international organisations have conducted and are still conducting operations at sea, using the authorisations granted by the Security Council or the consent of the competent State (coastal or flag State). The example of anti-piracy operations off the coast of Somalia is topical since it is one of the oldest cases. The practice has thus started to consolidate. A great range of actors have or had been involved directly or indirectly in counter-piracy operations in the area, including the European Union, NATO,36 the 151 Task force, the African Union, the SADC, the SHADE (Shared Awareness and Deconfliction) group and individual States such as China, Russia, India, Japan, the Republic of Korea and Iran. Similar practice is easily identifiable on the high seas, with respect to the boarding and inspection of foreign ships. However, identifying the opinio juris is much more delicate.37 From a theoretical point of view a single resolution of the Council cannot, in itself, exclude the formation of opinio juris. But the psychological element is very difficult to establish when the practice is based, precisely, on a resolution. Under these circumstances, States and international organisations act on the premise that their practice will not give rise to a customary rule and will not bind them in the future. Indeed, when they have launched maritime operations to enforce sanctions, or to fight piracy or migrant smuggling, the various actors involved have all made references to Security Council resolutions as the legal basis for their action. For instance, NATO refers directly to UNSC resolutions as the legal basis for it’s operation Allied Provider,38 as well as

35

See Neri (2013), pp. 71 et seq. NATO ended Operation Ocean Shield on 15 December 2016. 37 On the issue of identification of customary international law, see, among others: Scoville (2016); Mohamad (2016); Baker (2016) or Blokker (2017). 38 See Final Communiqué, Meeting of the North Atlantic Council at the level of Foreign Ministers held at NATO Headquarters, Brussels, 3 December 2008, para. 10: “As demonstrated by NATO’s rapid deployment of Operation Allied Provider, we are greatly preoccupied by the rising incidence of piracy off the Horn of Africa and are committed to assist in fighting this scourge, in full respect of relevant United Nations Security Council resolutions. Accordingly, in response to requests by the Secretary General of the United Nations, NATO and individual Allied nations’ naval forces are providing a deterrent presence and are escorting World Food Programme-chartered vessels carrying humanitarian aid to Somalia. NATO naval forces have also provided a maritime security presence and escorted African Union-chartered vessels carrying logistical supplies for the African Union Mission in Somalia (AMISOM). We welcome the EU’s upcoming ATALANTA operation. As more actors engage in these important efforts, it is essential to ensure complementarity among them. NATO stands ready to consider further requests for the use of Alliance naval assets to combat piracy in this region”. 36

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the EU for the operation EUNAVFOR Atalanta.39 The mandate of operation Atalanta reads as follows: Under the conditions set by the relevant international law and by UNSC Resolutions 1814 (2008), 1816 (2008) and 1838 (2008), Atalanta shall, as far as available capabilities allow: (c) keep watch over areas off the Somali coast, including Somalia’s territorial waters, in which there are dangers to maritime activities, in particular to maritime traffic; (d) take the necessary measures, including the use of force, to deter, prevent and intervene in order to bring to an end acts of piracy and armed robbery which may be committed in the areas where it is present.

As a result, even if the UNSC does not have per se the power to prevent the formation of a customary norm under international law, the inclusion of exclusion clauses in its resolutions have had the effect of preventing the formation of an opinion juris.

4 Conclusion Even though the United Nations Security Council’s contribution to the evolution of the law of the sea is clear, it is affecting the scope of its own contribution in order to preserve the fundamental balances of the law of the sea.

References Baker R (2016) Customary international law: a reconceptualization. Brooklyn J Int Law 41 (2):439–490 Blokker N (2017) International organizations and customary international law. Int Organ Law Rev 14(1):1–12 Ciciriello MC, Mucci F (2016) Modern piracy off the coast of Somalia: a test-bed for old and new international prevention and repression instruments. In: Contemporary developments in international law: essays in honour of Budislav Vukas. Brill Nijhoff, Leiden/Boston, pp 188–205 David E (1987) La guerre du Golfe et le droit international. Revista Brasileira de Direito Internacional:153–183 Guilfoyle D (2013) Piracy off Somalia and counter-piracy efforts. In: Guilfoyle D (ed) Modern piracy: legal challenges and responses. Edward Elgar Publishing Limited, Cheltenham, pp 35–60 Mohamad R (2016) Some reflections on the international law commission topic identification of customary international law. Chin J Int Law 15(1):41–46

39 See Council Decision 2008/918/CFSP of 8 December 2008 on the launch of a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast (Atalanta), OJUE, L 330/19 and Council Joint Action 2008/851/ CFSP of 10 November 2008 on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast, OJUE, L 301/33, Art. 2. Bold added by the author.

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Nair S (2017) Piracy off the coast of Somalia and maritime security. In: Patel BN, Malik AK, Nunes W (eds) Indian Ocean and maritime security: competition, cooperation and threat. Taylor & Francis Group, London/New York/Routledge, pp 103–111 Nations Unies et la mer/United Nations Security Council and the Sea. L’Editoriale Scientifica, Napoli, pp 31–41 Neri K (2013) L’emploi de la force en mer. Bruylant, Bruxelles Neri K (2018) Le Conseil de sécurité et la mer, une pratique renouvellée? Rapport introductif. In: Neri K (ed) Le Conseil de sécurité des Nations Unies et la mer/United Nations Security Council and the Sea. L’Editoriale Scientifica, Napoli, pp 11–28 Pancracio J-P (2018) La place accordée aux principes du droit de la mer dans les résolutions du Conseil de sécurité. In: Neri K (ed) Le Conseil de sécurité des Nations Unies et la mer/United Nations Security Council and the Sea. L’Editoriale Scientifica, Napoli, pp 31–41 Ricard P (2018) Le Conseil de sécurité des Nations Unies et l’environnement marin. In: Neri K (ed) Le Conseil de sécurité des Nations Unies et la mer/United Nations Security Council and the Sea. L’Editoriale Scientifica, Napoli, pp 141–165 Scoville R (2016) Finding customary international law. Iowa Law Rev 101(5):1893–1948

Documents EU Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED), Official Journal of the European Union, 19.5.2015, L 122/31 EU Council Decision 2008/918/CFSP of 8 December 2008 on the launch of a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast (Atalanta), OJUE, L 330/19 EU Council Joint Action 2008/851/CFSP of 10 November 2008 on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast, OJUE, L 301/33 NATO: Final Communiqué, Meeting of the North Atlantic Council at the level of Foreign Ministers held at NATO Headquarters, Brussels, 3 December 2008 UNGA, Resolution A/RES/72/73, Oceans and the Law of the Sea UNSC Resolution 1814 (2008) UNSC Resolution 1816 (2008) UNSC Resolution 1851 (2008) UNSC Resolution 1929 (2010) UNSC Resolution 1970 (2011) UNSC Resolution 1973(2011) UNSC Resolution 2146 (2014) UNSC Resolution 221 (1966) UNSC Resolution 2240 (2015) UNSC Resolution 2316 (2016) UNSC Resolution 2343 (2017) UNSC Resolution 713 (1991) UNSC Resolution 820 (1993) UNSC Resolution 1838 (2008)

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Kiara Neri Maître de conférences at Université Jean Moulin Lyon 3, France. Director of the Master in International Organisations (LLM) and Head of the MERCRO research Programme dedicated to the legal repercussions of the superposition of legal regimes on the effectivity of the police at sea. She is specialized in international law of the sea.

Chapter 11

The Challenges of the Commission on the Limits of the Continental Shelf Aldino Santos de Campos

Abstract The UNCLOS is one of the most important multilateral agreements achieved by humankind. For the first time in our history we have one global document that has an effective impact over seventy percent of our planet’s surface. Adopted in 1982, after nine years of intense negotiations, during the Third United Nations Conference on the Law of the Sea, this convention reflects, in a unique package, a multitude of issues that challenged the relationship among the nations in the past. It also sets some new challenges when breaking down our global and continuous ocean into several distinct geographic domains. While some of these domains were inherit from previously agreed conventions, such as the Territorial Sea, Continuous Zone and the High Seas, some others were introduced as new, such as the EEZ and the Area. Within the set of the maritime domains, the concept of legal continental shelf was thoroughly reviewed during the Third Conference, handing up in an agreed complex formulae to establish its outer limit. As an exercise of sovereignty, these outer limits are defined by coastal States and, the latter one, the continental shelf, must be submitted to the CLCS that issues recommendations in order to be accepted by the international community. This chapter describes the evolution of the concept of the continental shelf in international law and addresses the role and the challenges for the CLCS when considering the coastal States’ submissions to establish the outer limits in accordance with Article 76 of UNCLOS.

Member of the Commission on the Limits of the Continental Shelf (2017–2022). The views expressed herein are solely those of the author and do not necessarily reflect the views of the Commission on the Limits of the Continental. A. S. de Campos (*) Portuguese Institute of International Relations (IPRI-NOVA), Lisbon, Portugal © Springer Nature Switzerland AG 2020 M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea, https://doi.org/10.1007/978-3-030-42671-2_11

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1 Introduction We are living in a limited world. We know that for a quite long time now. In fact, in his literary work “Regards sur le monde actuel”, Paul Valéry outlines a scenario for the beginning of the finite world.1 This scenario illustrates the stage of humanity’s growth in which all habitable land has already been discovered and shared among nations. The search for resources, in terms of possession, is no longer possible in the land side. The ultimate option to be considered on Earth is this enormous global common—the Ocean. The race for the Ocean’s non-living resources, especially those located in the soil and subsoil of the continental shelf, had a considerable push in the mid-1940s of the last Century. Two major milestones can be highlighted; the first regards to the Treaty of Paria, between the United Kingdom and Venezuela, which can be considered as the first treaty on the continental shelf2 and beyond the limits of the Territorial Sea. The second milestone, which can be considered as the most disruptive one in the 1940s, was the Truman Proclamation of 1945.3 This proclamation sets the main foundations of the present concept of the legal continental shelf. Although the initial concept of continental shelf, as portrayed by Truman, was very close to its scientific meaning, the present definition, as defined by Article 76 of UNCLOS, departs from this physical reality. This breakpoint needs to be considered in order to fully understand the applied terminology when considering the elements of the geophysical margin that allow us to set the limits of the legal continental shelf.

2 Defining the Continental Shelf The origin of the term Continental Shelf is exclusively based on its geomorphologic concept. According to Mouton, it was back to 1887 when the British geographer Robert Mill first coined this term.4 In its geological sense, the continental shelf is the seaward area adjacent to the coastline, characterized with a gentle gradient (around 1 ) that extends to the shelf break where a significant change in gradient occurs. The average depth where the shelf break occurs is around 200 m, which is close to the 100 fathoms proposed by Truman, in his 1945 Proclamation, as outer limit of the continental shelf.

1

Valéry (1931), p. 7. Suarez (2008), p. 25. 3 U.S. Proclamation No. 2667, “Policies of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, 28 September 1945, 10 Fed. Reg. 12303, reprinted in full in: Lay et al. (1973), pp. 106–107. 4 “(. . .) the need to give a special name to the framelike rim or margin of the continents with their long, sometimes narrow, sometimes wide but hardly ever completely failing shallow-water banks (. . .). Mouton (1952), p. 6. 2

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From this point on, the connotation of continental shelf, when comparing the legal to the geoscientific interpretations, starts to depart from each other. In fact, in Latin America, several countries adopted different approaches regarding to the sovereignty over this maritime space. Chile, on June 1947, declared its sovereignty and jurisdiction over the sea and continental shelf adjacent to its coasts up to a distance of 200 nautical miles. Peru, on August 1947 published the Decree N 781 with similar characteristics.5 On August 1952, Chile, Ecuador and Peru, in the Santiago Declaration, declared that, “all countries which had no continental shelf (. . .) claimed sole jurisdiction and sovereignty over the area of sea extending 200 nautical miles from their coast including sovereignty and jurisdiction over the sea floor and subsoil thereof”.6 We were no longer close to the geoscientific concept and a worldwide definition was needed. The first effort to set up an agreed limit for the continental shelf, in its legal sense, was completed during the First United Nations Conference on the Law of the Sea (UNCLOS I). From this conference four conventions were adopted, the Territorial Sea and Contiguous Zone, the Convention on the High Seas, the Convention on Fishing and Conservation of the Living Resources of the High Seas and the Convention on the Continental Shelf. The scope of this chapter is only focus in the latter convention, The Convention on the Continental Shelf7 (hereinafter designated as Geneva Convention). Article 1 of the Geneva Convention8 defines the continental shelf as “the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas”. As one can easily depict, in this the Convention, two alternative formulae were put forward to define the limits of the legal continental shelf. The first one, the line at which the coastal waters reach a depth of 200 m, is the familiar rule derived from the geological concept of the average shelf edge, although in some cases the shelf break may occur at different reference depths. The second alternative formula seems to fix as a limit the line, at a depth greater than 200 m, beyond which deep water makes it in fact impossible to exploit the resources of the seabed and subsoil.9 These two approaches, the (1) depth and the (2) exploitability, which might be closer in terms of spatial location by the end of the 1950s, started to depart from each other as marine technology progressed with time. The exploitability criteria, as formulated in the Geneva Convention, soon unlocked space for great juridical debates regarding its applicability and scope.

5

IHB (2014), pp. 1–4. Suarez (2008), p. 28. 7 Adopted at Geneva on April 26, 1958. 8 The 1958 Convention was ratified by 58 States. It remains valid for very few of them as most Member States then ratified the 1982 Convention which between State parties, prevails over the Geneva Conventions on 1958 the Law of the Sea of 29 April (Suarez 2008, p. 34). 9 Young (1958), p. 52. 6

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Besides that, in the sixties the world social order was living in a turmoil, as new independent States were rising for the decolonization process. For these newcomers into the international order, it was obvious that the exploitability criteria would benefit only those States that hold a significant technological level, especially when comparing these latter ones with the landlocked and geographically disadvantages States. An alternative approach was needed, again. The kick-off for the quest of a new regime was steered by Arvid Pardo.10 In 1967 he called on the nations of the world to recognize their potential devastation of the oceans and the importance of the oceans to world peace. He pleaded for “an effective international regime over the seabed and the ocean floor beyond a clearly defined national jurisdiction.” This call started a 15-year process to establish a new international regime for the world’s seas. After some preparatory works, conducted by the recently established United Nations Seabed Committee, the Third Conference on the Law of the Sea was convened in New York in 1973 to draft an international treaty for the oceans. Nine consecutive years of negotiations involving more than 160 nations over national rights and obligations followed. In 10 December 1982, the United Nations Convention on the Law of the Sea was adopted at the Third UN Conference on the Law of the Sea (UNCLOS III), in Montego Bay. The UNCLOS entered into force in 16 November 1994, 12 months after the date of deposit of the sixtieth instrument of ratification. Contrarily to the 1958 Geneva Conference, which resulted in four distinct conventions, the UNCLOS III Conference resulted in a unique Convention, the package deal to be accepted as a whole in all its parts without reservation on any aspect, and where the Continental Shelf is described in its Part VI. This Convention established a totally different formulae to set up the outer limit of the continental shelf and the methodology to establish its limit is far more complex comparing to the previously established in the 1958 Convention. Two important aspects differ from both conventions, regarding to the continental shelf. The first one is the concept of a restricted outer limit of continental shelf,11 that contrasts with the “unlimited” exploitable criteria of the Continental Shelf from the Geneva Convention. The second one, which is a direct consequence of the first one, is the establishment of an autonomous regime for the seabed and subsoil beyond the national jurisdictions, where the resources located there would be considered as “Common Heritage of Mankind”. This new spatial maritime domain, designated as Area, is regulated by Part XI of the CNUDM, and managed by the International Seabed Authority. In a Euclidean domain, one region supplements the other, in other words, delimiting the continental shelf for all coastal States is paving the way to set the “outer limit” of the Area. Due to the complexity of setting the outer limits of the continental shelf, and understanding the importance of having such limits internationally recognised, a

10

Arvid Pardo was Malta’s permanent representative to the United Nations General Assembly (1964–1971). 11 McDorman (2002), p. 307.

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special mechanism was delineated during the CNUDM III to validate the legitimacy of such limits and set them to be final and binding.

3 Article 76 and the Outer Edge of the Continental Margin There were several factors that contributed most to the final provisions of Article 76, prescribed as the combinations of all related formulas. Among these the most important were the access to existing mineral resources and its impact at socioeconomic level, and also the fact that the outer boundary of the Continental Shelf would also be the boundary of the International Seabed Area.12 Nonetheless, to set an acceptable bordering limit, the legal framers needed to model the related universe of discourse. The primary model provided was a theoretical one representing the classical physiographic continental margin. The conditions portrayed by this model occur in some areas (Passive margins—Atlantic like margins) but are not universally accepted as a whole.13 Therefore, a second model was considered to analyse where the type of continental margin does not contain a simple pattern as the previous one. In this second type, seismic activity and block fragmentation on the continental crust was commonly represented (Active margins—Pacific like margins). From the analysis of these models, several limits for the legal continental shelf were suggested. Those were based on water depth, natural boundaries and crustal boundaries. However, no agreement could be reached based on these parameters. Two major contributions for the final agreement were given by Hedberg (1979) and Gardiner (1978). Their knowledge over the complexity of the continental margins allowed two different approaches for setting the outer limits. Hedberg proposed that the national-international boundary for mineral resources of the oceans should lie just oceanward of the continental slope, within a zone of an internationally agreed width. Within that zone, each coastal State should draw its own precise boundary by means of straight lines connecting geographic points. The initial width for boundary zone proposed by Hedberg was 100 km, where the boundary between oceanic and continental crust was expected to lie. This proposal evolved to what is known as the Hedberg line. Gardiner found the latter proposition inconsistent with the known scientific definition of the natural prolongation of the landmass. He suggested that, if based on true geological sense, the natural boundary of the continental margin would be the outer limit of the continental rise, therefore, the sediment thickness boundary. The “sediment thickness” formula14 shapes the cut-off line in direct proportion to the

12 This was actually the need for a satisfactory basis for drawing the line between national and international jurisdictional domain for mineral resources. 13 Monahan and Macnab (1994), p. 89. 14 Usually referred as the Gardiner Line.

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thickness of rise sediments. A generous value of 1% of the distance from the measured point to the reference point (the foot of the continental slope—FoS) allow the coastal State to enclose the continental rise as part of its Continental Shelf. In other words, the outer limit of the rise at any point would be where the sediment thickness is at least 1% of the shortest distance from the foot of the slope to that point. These two propositions (Hedberg and Gardiner), after some amendments,15 provided the basics for the Article 76. The five major inputs can be summarized as16: 1. The term “continental margin” is defined in its natural scientific sense and is specified as including the continental shelf, slope and rise. 2. Two formulas were suggested to precisely establish the outer limit of the continental shelf: (1) a modified Hedberg proposal (the 100 km search band became a 60 NM distance line from the FoS) and (2) the Gardiner formula. 3. The use of simple mathematical calculus to obtain the FoS as the point of maximum change in gradient. 4. The method by which a coastal State can fix the outer limits of its continental shelf jurisdiction in hardcopy. 5. The need for an international boundary commission to prevent excessive coastal State claims. We can clearly see that the proposed final model is a simplification of the reality.17 A “clean and clear” model can easily allow a legal framer to set a generic rule. The problem is that the “real world” is very distinct from the “ideal world” and the burden to overcome such differences is to be carried by an international boundary commission—the Commission on the Limits of the Continental Shelf—as mentioned in the 5 points highlighted by Persand.18

4 The Commission on Limits of the Continental Shelf The Commission on the Limits of the Continental Shelf (CLCS) is one of the three bodies established by the UNCLOS. The two functions of the CLCS are (1) to consider the data and other material submitted by coastal States concerning the outer limits of the continental shelf in areas where those limits extend beyond 200 nautical miles, and to make recommendations in accordance with Article 76 and the Statement of Understanding adopted on 29 August 1980 by the Third United Nations

15

Also known as the Irish Amendments. Persand (2005), p. 4. 17 In this chapter it will not be covered the constrain lines that should be apply to the legal continental margin (the 350 nautical mile limit, measured from the coastal State baseline and the 100 nautical mile line measured from the isobathymetric of the 2500 m depth). 18 Cit. 16

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Conference on the Law of the Sea; and (2) to provide scientific and technical advice, if requested by the coastal State concerned during the preparation of the data for its submission. The need of a Commission emerged during the progress of the Third Conference after realizing the complexity of the methodology to establish the outer limits of the continental shelf. The first step in that direction was given, during the third session, by the US Delegation, on May 1975, where was pointed out that the coastal States should submit the data and information that support the limits to a designated Continental Shelf Boundary Commission.19 The specific functions of the Commission, the number of Commission members, and their fields of expertise were proposed by Canada on April 1975. At that time, it was put forward 30 members in the three areas of expertise (geology, geophysics or hydrography) and the two main functions of the Commission were to certificate the delineation of the outer limits of the continental shelf beyond 200 miles and to provide technical advice to a coastal State upon request.20 Beside the number of member, that became 21, all proposals were very close to the final text of the UNCLOS. During the eighth session, the USSR suggested the adoption of the term “recommendation” regarding to the decisions made by the Commission about the outer limits of the continental shelf. These were to be considered, in the USSR proposal, as final and unalterable.21 The contents of Annex II, regarding the Commission on the Limits of the Continental Shelf, were included in the draft text of the UNCLOS during the Conference’s ninth session. As it is today, in terms of its composition, the CLCS reflects our world. It consists of 21 members who meet certain requirements. The first requirement, as proposed in 1975 by Canada, is the nature of their professional qualification. According to Article 2 of Annex II to UNCLOS candidates eligible for the CLCS should be experts in the areas of geology, hydrography or geophysics. The candidates are elected by States Parties to the UNCLOS from among their nationals, having due regard to the need to ensure equitable geographical representation (minimum of 3 per UN region). The present geographic distribution specifies five seats for the African Group, five seats for the Asia Pacific Group, three seats for Eastern Europe, four seats for Latin America and the Caribbean (GRULAC), and three for Western Europe and other countries (WEOG). There is also a floating seat that is presently taken by a member of the African Group (but can be also assign to WEOG or Asia Pacific Group). The members of the CLCS are elected for a term of five years and they are eligible for re-election. Finally, all the members of the CLCS shall serve in their personal capacities with a duty to act independently and preserve confidentiality (they do not represent their nominating States).

19

Suarez (2008), p. 49. Suarez (2008), p. 52. 21 Suarez (2008), p. 63. 20

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Submissions and RecommendaƟons

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4 3 1 1 1 1 1 0 2001 2003 2005

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Fig. 11.1 Total number of received submissions by coastal States (Orange circles with cumulative values). Total number of recommendations issued by the Commission on the Limits of the Continental Shelf. Status as of end 2019 (Data provided from the DOALOS website — https:// www.un.org/Depts/los/clcs_new/commission_submissions.htm)

5 The Challenges of Commission on Limits of the Continental Shelf The main challenge of the CLCS is the unexpected workload of submissions that still have to be considered. Clearly, that was an unforeseen prediction during the course of the III Conference. The scientific knowledge regarding marine science, by the 1970s, is completely different from what it is today. With that knowledge, the expected volume of submissions to be considered by the CLCS would be less than 40. Beside the unforeseen amount of submission, those were also anticipated as less elaborated and complex from those that were in fact submitted, especially due to the technological innovation in the marine industry. As of today, 82 submissions were received by the CLCS. If we add 7 revised submissions, then the total number becomes 89 (see Figs. 11.1, 11.2 and 11.3). If we add all submissions from those States that submitted Preliminary Information, further partial submissions for additional areas, further revised submissions, new submissions by States whose ten-year time limit for making a submission has not expired and new submissions by States not yet parties, then this process might take much longer then it was initially assumed. In practical terms, the limits from national jurisdiction and the international jurisdiction (Common Heritage of Mankind) will be postpone to un unknown future. The CLCS was established in 1997 and since then meets regularly in the United Nations headquarters, in New York. The amount of time expended to consider the Submissions has been increasing since then as a response to the existent backlog of Submissions piled today. Since July 2012 (fourth term), the CLCS meets in NYC for

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Submissions received

New submissions received

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Revised submissions received

40 35 30 25 20 15 10 5 0 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019

Fig. 11.2 Status of progress of newly received submissions (dark blue) and the impact of the added resubmissions in the total workload (red). Status as of end 2019 (Data provided from the DOALOS website — https://www.un.org/Depts/los/clcs_new/commission_submissions.htm)

Recommendaons issued 5

Recommendations issued on new submissions Recommendations issued on revised submissions

4 3 2 1 0 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019

Fig. 11.3 Status of progress of issued recommendations on new submissions (dark blue) and on resubmissions (red). Status as of end 2019 (Data provided from the DOALOS website — https:// www.un.org/Depts/los/clcs_new/commission_submissions.htm)

3 times a year for 7 weeks, in a total of 21 weeks per year, within the maximum limit of 26 weeks per year as stated in the UNCLOS. Until now, by the end of the fortynine session (March 2019), the CLCS have held 254 weeks of meetings at United Nations Headquarters, 70 of which will have been plenary weeks, and 184 weeks at the level of the Subcommissions. Up to the present term, the States Parties to the UNCLOS elected from among their nationals 59 members to the CLCS from 40 States (see members’ list). Two members have been serving on the CLCS since its establishment and only two women have been elected to the CLCS (present term).

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6 Final Remarks The present concept of the legal continental shelf, as described on Article 76 of the UNCLOS, reflects the achieved result from the negotiations during the III Conference on the Law of the Sea. This concept is no longer close to the proposed definition presented by the end of the nineteenth century by Robert Mill. It is, however, an alternative definition for a new maritime domain that inherits the same name but regards to the full continental margin. The drafters of the UNCLOS, by idealizing a model for the continental margin with a general and simplistic approach, have unwittingly postponed the problem of the complex realism of the continental margins around the world. The recipe—shelf, slope and rise—as easily represented as a nice and clear profile seems to be an ideal exception, instead the general rule. The problem was solved; however, we recognized that, despite all substantive achievements of the UNCLOS, the real-world complexity of delimiting the continental shelf has made delimitation a puzzling task, challenging both States and the CLCS. Another important point to highlight, as final remark, is that the CLCS only consider the data and information that was provided by the coastal State to certify the submitted limits of the extended continental shelf beyond the 200 nautical miles. The CLCS is not, by all mean, considered guardian of the Area—Common Heritage of Mankind, but by setting the outer limit of the continental shelf is, in the limit, paving the way to set the limit of the Area. We are in the process of reshaping our Global Ocean and we are aware of that. Until now, the Secretary-General of the United Nations has received only six deposits permanently describing the outer limits of the continental shelf based on recommendations by the CLCS. In 22 years of its existence, the CLCS has contributed to the implementation of Article 76. It is a challenging assignment, but we can assure that the way is being paved to the final goal as set out by the UNCLOS.

Elected Members of the CLCS (1997–2022) Adnan Rashid Nasser Al-Azri (Oman) (2017–Present) Hilal Mohamed Sultan Al-Azri (Oman) (2002–2007) Alexandre Tagore Medeiros de Albuquerque (Brazil) (1997–2012), Chair 2007–2012 Muhammad Arshad (Pakistan) (2012–2017) Osvaldo Pedro Astiz (Argentina) (1997–2012) Lawrence F. Awosika (Nigeria) (1997–Present), Chair 2012–2017 Aly Ibrahim Beltagy (Egypt) (1997–2002) Samuel Sona Betah (Cameroon) (1997–2007) Harald Brekke (Norway) (1997–2012) Aldino Santos de Campos (2017–Present)

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Galo Carrera Hurtado (Mexico) (1997–2017), Chair 2012 André C.W. Chan Chim Yuk (Mauritius) (1997–2002) Francis L. Charles (Trinidad and Tobago) (2007–2017) Wanda-Lee De Landro-Clarke (Trinidad and Tobago) (2017–Present) Peter F. Croker (Ireland) (1997–2012), Chair 2002–2007 Indurlall Fagoonee (Mauritius) (2002–2012) Noel Newton St. Claver Francis (Jamaica) (1997–2007) Mihai Silviu German (Romania) (2002–2012) Ivan F. Glumov (Russian Federation) (2012–Present) Kazuchika Hamuro (Japan) (1997–2002) Richard Thomas Haworth (Canada and United Kingdom) (2012–2017) Martin Vang Heinesen (Denmark) (2012–Present) Karl H.F. Hinz (Germany) (1997–2002) A. Bakar Jaafar (Malaysia) (1997–2012) George Jaoshvili (Georgia) (2007–2015) Mladen Juračić (Croatia) (1997–2007) Emmanuel Kalngui (Cameroon) (2007–Present) Yuri Borisovitch Kazmin (Russian Federation) (1997–2012), Chair 1997–2002 Iain C. Lamont (New Zealand) (1997–2002) Nenad Leder (Croatia) (2015) Wenzheng Lyu (China) (1997–2019) Mazlan Bin Madon (Malaysia) (2012–Present) Estevao Stefane Mahanjane (Mozambique) (2012–Present) Jair Alberto Ribas Marques (Brazil) (2012–Present) Marcin Mazurowski (Poland) (2017–Present) Chisengu Leo M’Dala (Zambia) (1997–2002) Domingos de Carvalho Viana Moreira (Angola) (2017–Present) David Cole Mosher (Canada) (2017–Present) Simon Njuguna (Kenya) (2012–Present) Isaac Owusu Oduro (Ghana) (2007–2017) Yong Ahn Park (Republic of Korea) (1997–Present), Chair 1997–Present Carlos Marcelo Paterlini (Argentina) (2012–Present) Fernando Manuel Maia Pimentel (Portugal) (2002–2012) Clodette Raharimananirina (Madagascar) (2017–Present) Sivaramakrishnan Rajan (India) (2007–2014) Rasik Ravindra (India) (2014–2017) Daniel Rio (France) (1997–2002) Walter R. Roest (Netherlands) (2012–2017) Michael Anselme Marc Rosette (Seychelles) (2007–2012) Krishna-Swami Ramachandran Srinivasan (India) (1997–2002) Philip Alexander Symonds (Australia) (2002–2012) Kensaku Tamaki (Japan) (2002–2011) Yong Tang (China) (2019–Present) Naresh Kumar Thakur (India) (2002–2007) Tetsuro Urabe (Japan) (2011–2017)

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Szymon Uścinowicz (Poland) (2012–2017) Toshitsugu Yamazaki (Japan) (2017–Present) Gonzalo Alejandro Yáñez Carrizo (Chile) (2017–Present) Yao Ubuènalè Woeledji (Togo) (2002–2007)

References IHB (2014) S-51 A manual on technical aspects of the United Nations Convention on the Law of the Sea - 1982. S-51, 214. Lay SH, Churchill RR, Nordquist MH (eds) (1973) New directions in the law of the sea: documents, vol 1. Oceana Publications McDorman TL (2002) The role of the commission on the limits of the continental shelf: a technical body in a political world. Int J Mar Coast Law 17(3):301–324 Monahan D, Macnab R (1994) Status of mapping for Article 76 in Canadian waters. Proceedings on the Law of the Sea Article 76 Workshop. Mapping the continental shelf limit: legal/technical interface, Fredericton, New Brunswick, Canada, pp 89–114 Mouton MW (1952) Attempt to define the continental shelf. In: The continental shelf. Springer, Dordrecht, pp 6–45 Persand S (2005) A practical overview of Article 76 of the United Nations Convention on the Law of the Sea. The United Nations - The Nippon Foundation of Japan Fellowship Program, 2005 [cited 2019-04-25] Suarez SV (2008) The outer limits of the continental shelf: legal aspects of their establishment. Springer, Berlin-Heidelberg Valéry P (1931) Regards sur le monde actuel. Oeuvres, ed. J. Hytier, 2, 917 Young R (1958) The Geneva Convention on the continental shelf: a first impression. Am J Int Law 52(4):733–738

Documents of the CLCS Scientific and Technical Guidelines, CLCS/11, adopted 13 May 1999 Rules of Procedure, CLCS/40, adopted 2 July 2004 Internal code of conduct for members of the Commission on the Limits of the Continental Shelf, CLCS/47, adopted 8 September 2005 Celebrating the twentieth anniversary of its establishment (1997-2017), Commission on the Limits of the Continental Shelf, 2017

Aldino Santos de Campos (Commander) Holds a degree in Naval Military Sciences (Portuguese Navy), Meng in Geomatics (Canada) and PhD in Territory Engineering (Lisbon). He is presently engaged on a PhD in International Relations and Ocean Governance (Lisbon). Professor in the Portuguese Naval Academy and Researcher at the Portuguese Institute of International Relations. Elected in 2017 for the United Nations Commission on the Limits of the Continental Shelf.

Chapter 12

UN Food and Agriculture Organization: Exercising Legal Personality to Implement the UN Convention on the Law of the Sea Anastasia Telesetsky

Abstract In the last several decades, intergovernmental organizations have played an increasingly significant role in implementing international treaties by providing innovative implementation proposals. The UN Food and Agriculture Organization (FAO) has been a core institution for improving international fisheries governance. This chapter proposes that based on a combination of delegated and derivative international organization powers that the FAO has responsibilities to implement actively those portions of UNCLOS that are relevant to the FAO’s mission to conserve natural resources. Even though FAO is not a party to the UNCLOS treaty, the FAO has played a central role in elaborating general concepts within UNCLOS and innovating in the area of fishery management. FAO has done this both as an agent of States but also independently through the exercise of FAO’s delegated powers to conserve natural resources. This chapter highlights five areas where the FAO has made substantive contributions to improving practices for sustainable fisheries management: (1) ecosystem approach fisheries management, (2) port state measures to combat illegal fishing, (3) guidelines to assist small-scale fisheries, (4) improved flag state performance in relation to fisheries and (5) facilitation of regional fisheries bodies. The Author proposes at the end that the FAO might be able to exercise its derivative powers to improve enforcement on the high seas with the possibility of FAO-organized enforcement efforts.

1 Introduction Created by States, intergovernmental organizations play essential governance roles by designing and promoting shared work agendas. Over the last several decades, the UN Food and Agriculture Organization has contributed to actively promoting an ecologically responsible fisheries management agenda. FAO’s efforts are a reflection of its constitutionally mandated function to pursue “the conservation of natural A. Telesetsky (*) University of Idaho, College of Law, Moscow, ID, USA e-mail: [email protected] © Springer Nature Switzerland AG 2020 M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea, https://doi.org/10.1007/978-3-030-42671-2_12

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resources and the adoption of improved methods of agricultural production” [“agriculture” is defined to include fisheries].1 Notably, FAO’s work on shaping an agenda to achieve the conservation of marine fisheries has resulted in notable contributions by FAO to achieving the objectives of the United Nations Convention on the Law of the Sea (UNCLOS).2 This focused work by a single international organization is increasingly important with millions of people particularly in Global South countries relying upon fish not just for protein but also for vitamins and micronutrients such as zinc, iron, and iodine.3 Even though the FAO is not a party to the UNCLOS treaty, the FAO through the exercise of its powers has significantly contributed to the implementation of UNCLOS independently of individual State interests. This chapter concludes that the FAO as an institutional actor has been an active subject of international law setting an international agenda derived from its mission to achieve ocean sustainability outcomes. Given that the FAO exercises authority as an independent organization to achieve outcomes that might not be possible if the organization was simply the sum of its members, the FAO is in a unique position to make substantive contributions to UNCLOS implementation. This chapter explores five FAO-driven value-added initiatives that have helped to accelerate the implementation of UNCLOS by creating new norms and practices including: (1) ecosystem approach fisheries management, (2) port state measures to combat illegal fishing, (3) guidelines to assist small-scale fisheries, (4) improved flag state performance in relation to fisheries and (5) facilitation of regional fisheries bodies. This chapter concludes by suggesting that the FAO because of its exercise of derivative powers has been capable of responding to certain types of global problems of concern to UNCLOS parties more deftly and perhaps innovatively than a mere “organization of states.”

2 FAO, International Legal Personality, and UNCLOS Implementation For many decades, States have acknowledged that international organizations particularly UN created organizations including specialized agencies have legal personality.4 The practice of legal personality has generally focused on the rights of

1 Food and Agriculture Organization Constitution in Basic Texts of the FAO (Volume 1) (2017) available at http://www.fao.org/3/K8024E/K8024E.pdf: Article I(2)(c). 2 1833 UNTS 3, 21 ILM 1261 (1982), Preamble (UNCLOS was concluded to promote “the equitable and efficient utilization” and conservation of ocean resources plus “the protection and preservation of the marine environment”). 3 Food and Agriculture Organization, The State of World Fisheries and Aquaculture (2016). Available at http://www.fao.org/3/a-i5555e.pdf, p. 70. 4 Reparation of or Injuries Suffered in the Service of the United Nations I.C.J. Reports 1949, 177; Rama-Montaldo (1970); Amerasinghe (2005); Schmerers and Blokker (2011).

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organizations to make treaties,5 conduct diplomatic relations, and make international claims for violation of rights.6 The general concept of international personality can also be useful for thinking about what role an institution might play in advancing the implementation of certain international laws such as treaty regimes. The recognition of legal personality for FAO means an acknowledgment that the FAO organization has certain enumerated and implied powers to exercise its institutional authority to achieve the purposes for which member States constituted it (e.g. conservation of natural resources and improved fisheries management).7 FAO’s Constitution specifically identifies FAO legal personality in Article XVI where FAO is delegated “the capacity of a legal person to perform any legal act appropriate to its purpose which is not beyond the powers granted to it by this constitution.”8 The FAO’s ability to become involved with international ocean policy governance derives in part from its “delegated powers” based on its constitutive text providing it with the ability to “perform any legal act appropriate to its purpose.”9 With a broad purpose to achieve the “conservation of natural resources”, the FAO’s “delegated powers” provide a liberal amount of room for creating collective actions and pressuring member States to support the actions.10 In practice, this means that the FAO can offer novel approaches to resolving global resource problems that States would not have envisioned or individually proposed. Over the long-term organizations such as FAO play important roles in diffusing international norms.11 In addition to any primary functions delegated to it under the FAO Constitution, the FAO also has “derivative functions” that can be implied which may give FAO more latitude to act in certain situations.12 To the extent that FAO’s work on creating potentially new legal norms does not fall within the FAO’s delegated powers, the FAO can exercise derivative powers to improve implementation of UNCLOS’ provisions on conservation and management of natural resources. The FAO has certain rights and powers that exist separate from the interests of each of its individual member States but derive from delegated powers. One such power might include the authority to frame and negotiate policies that States are eventually expected to adopt in order for FAO to be able to achieve its organizational mission to conserve natural resources. Operationally in terms of UNCLOS implementation, this means that the FAO is expected to do more than just assist member States in achieving the objectives of UNCLOS through, for example, facilitating

5

Vienna Convention on the Law of Treaties between States and International Organisations or between Organisations (1986) 25 ILM 543. 6 Reparation of or Injuries Suffered in the Service of the United Nations I.C.J. Reports 1949. 7 Food and Agriculture Organization, supra note 1 at Art. I. 8 Id. at Art. XVI. 9 See generally, Kelsen (1951). 10 March and Olsen (1998): Finding that intergovernmental organizations will independently create ideas to solve global problems and put pressure on States to act in conformity with the ideas. 11 Park (2006). 12 Weissburg (1961), p. 203.

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trainings in good fisheries management. Based on its derivative powers, FAO also has an independent responsibility to contribute to the conservation of marine natural resources. This responsibility exists outside of any responsibilities of individual FAO member States to achieve UNCLOS obligations.13 While the FAO is not a party to UNCLOS, it has responsibilities under the treaty related to its delegated powers including an obligation to ensure that “the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation” due to poor management by coastal States.14 In exercising its responsibilities to conserve natural resources, the FAO has limited options. Whatever derivative powers it has, the FAO does not have the right to infringe upon a coastal State’s sovereign interests to manage its overexploited exclusive economic zone even if other States might approve of this intervention. To meet its own responsibilities to achieve conservation of natural resources as an organization, the FAO also has duties independent of its members’ agendas to initiate meetings with State representatives wherever there is a known ongoing over-exploitation of living resources. The FAO would not initiate these diplomatic meetings as a proxy for other States but based on its own legal personality and capacity to enter into relationships with other international persons. Under the same theory, the FAO may also have a duty as an international organization not just to wait for members States to submit information related to fish stocks but to compile independent fisheries statistics.15 While the FAO is currently collecting and analysing large amounts of catch data including fishing effort data, it is interesting to think about whether the FAO also might have a duty based on its derivative powers to undertake FAO-led marine scientific research and data collection activities in currently data-poor fisheries including EEZ based fisheries. The combination of delegated and derivative powers forming an organization’s legal personality explains in part how the FAO has been a relatively innovative actor in the field of fisheries governance. Where many States have taken only minimal domestic or bilateral steps to reform fisheries governance, the FAO has offered several novel reform approaches for States to manage their fisheries and their fishing industries more effectively. FAO has taken a role of leadership where it might otherwise have waited for interested States among its membership to take the lead. The following section highlights a few examples of influential FAO initiatives contributing to improved UNCLOS implementation.

13

This conclusion is based on analogizing with the ICJ’s analysis of the United Nations as an intergovernmental organization. See Reparation of or Injuries Suffered in the Service of the United Nations I.C.J. Reports 1949, p. 177 (“It must be acknowledged that its Members, by entrusting certain function to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged”). 14 Art. 61(2), UNCLOS. 15 UNCLOS, Art. 61(5) and Art. 119 (“Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations”).

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3 FAO-Driven Initiatives That Have Helped to Accelerate the Implementation of UNCLOS While the parties to UNCLOS are largely States, intergovernmental organizations are playing substantive roles in the implementation of the treaty as independent legal actors. This part describes some of the paradigm-shifting efforts by the FAO to both interpret UNCLOS and to catalyse effective implementation of the treaty.

3.1

Ecosystem Approach to Fisheries

While the term ecosystem is only mentioned explicitly once in the UN Convention on the Law of the Sea, the concept is implicit in both Article 61 and Article 119 of UNCLOS. Article 61 provides that coastal States in the exclusive economic zone must designate conservation and management measures for marine resource that take into account “the interdependence of stocks” and the effects of fishing efforts “on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened.”16 Article 119 requires the same approach to design of conservation and management measures be taken by all States participating in high seas fishing. Notably, both Article 61 and Article 119 indicate that States must take into account any generally recommended international minimum standards. The concept of an ecosystem approach to fisheries promoted by FAO requires managing resources that do not have commercial value but have essential value for the functioning of an ecosystem. In 2001, the FAO organized with the Government of Iceland and the sponsorship of Norway a “Conference on Responsible Fisheries in the Marine Ecosystem.” The conference concluded with an intergovernmental declaration that reaffirmed UNCLOS and called upon regional and international fisheries management organization to incorporate “ecosystem considerations” into their work and for the FAO “to develop technical guidelines for best practices with regard to introducing ecosystem considerations into fisheries management.”17 Since the 2001 meeting, FAO has developed numerous sets of guidelines that encompass ecosystem approach to fishery management. While the guidelines are voluntary, they represent a set of “best practices” negotiated by a variety of stakeholders including government policymakers and industry representatives and offer concrete guidance for normative developments in the implementation of UNCLOS Article 61 and 119. The Guidelines have been influential in shaping government policy responses. For 16

Art. 61, UNCLOS. The Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem (2001) in Report of the Reykjavik Conference on Responsible Fisheries in the Marine Ecosystem (1–4 October 2001) FAO Fisheries Report, No. 658 (2002). 17

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example, the Government of Canada in providing its “Guidance on Implementation of the Policy on Managing Bycatch” references the FAO Guidelines on Bycatch Management and Reduction of Discards as a “primary source” for “tools and measures that can be used to manage bycatch issues and problems” that would comply with Canadian law.18 The ecosystem approach to fisheries elaborates on the concept of species “associated with and dependent on “target species. A number of international guidelines drafted by the FAO to assist States with implementing the FAO Code of Conduct for Responsible Fisheries feature any ecosystem-based approach. Three of these guidelines are briefly discussed here. First, in 2003, the FAO published as part of its “Technical Guidelines for Responsible Fisheries” a volume covering the ecosystem approach to fisheries.19 FAO republished this volume in 2009 to provide additional information on how to manage practically “the human dimensions of the ecosystem approach to fisheries.”20 As of 2009, the FAO recognizes that implementing an ecosystem-based approach to fishing requires analysis of the biotic, abiotic, and human components of a given fishery but that full-knowledge is not essential to initiating an ecosystem-based approach to policy planning and management. The FAO guidelines offer general but useful advice on how to re-structure fisheries management to incorporate ecosystem approach by acknowledging that different stakeholder groups will prioritize ecosystem services differently; that the “realities of the socioeconomic context” for fisheries management must be understood as a foundation for shifting fishery management; and that investing in ecosystem-based approaches require long-term commitments, legal flexibility, and adequate funding.21 While there is no universal approach to achieving ecosystem based outcomes, programs must focus on a “fishery system” and take into consideration the costs and benefits of certain management strategies including distributional impacts.22 In 2009, the FAO published the International Guidelines for the Management of Deep-Sea Fisheries in the High Seas to assist States and regional fisheries management groups in developing appropriate conservation and management mechanism.

18 Government of Canada, Guidance on Implementation of the Policy on Managing Bycatch. Available at http://www.dfo-mpo.gc.ca/reports-rapports/regs/sff-cpd/bycatch-guide-prise-accesseng.htm. 19 FAO Technical Guidelines for Responsible Fisheries, Ecosystem Approach to Fisheries Guidelines, (2003), No. 4, Suppl. 2. Available at http://www.fao.org/3/a-y4470e.pdf (The “ecosystem approach to fisheries and aquaculture” is understood by FAO as a system that “strives to balance diverse societal objectives, by taking account of the knowledge and uncertainties about biotic, abiotic and human components of ecosystems and their interactions and applying an integrated approach to fisheries within ecologically meaningful boundaries”). 20 FAO, The Ecosystem Approach to Fisheries, The Human Dimensions of the Ecosystem Approach to Fisheries, Technical Guidelines for Responsible Fisheries (2009), No. 4, Suppl. 2, Add. 2. Available at http://www.fao.org/3/a-i1146e.pdf. 21 Id. at xvii. 22 Ibid.

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The Deep-Sea Fisheries Guidelines were a direct response to the UN General Assembly’s Resolution 61/05 (2006) committing States to: 1) Conduct impact assessments of high seas bottom fisheries to prevent “significant” adverse impacts on vulnerable marine ecosystems; 2) Close areas of the high seas to bottom fishing where vulnerable marine ecosystems have been identified or are likely to be present unless managed to protect against significant impact on vulnerable marine ecosystems; 3) Ensure long-term sustainability of deep-sea fish; 4) Require their vessels to move out of areas with vulnerable marine ecosystems. The FAO Deep-Sea Fisheries Guidelines explicitly identify an approach for identifying vulnerable marine ecosystems (VME) based on classifying the uniqueness or rarity of the ecosystem, the functional significance of the habitat, the fragility of the ecosystem, the life history of species within the VME, and the structural complexity of the ecosystem.23 Additionally, the guidelines are informative about what constitutes a significant adverse impact on a VME that States should avoid. Regional Fisheries Management Organizations have relied on these guidelines to identify VMEs and seven regional fisheries management organizations with a mandate to manage deep-sea fisheries in areas beyond national jurisdiction have adopted the guidelines. As noted below, the Deep-Sea Fisheries Guidelines are likely to be influential in shaping any international instrument that might govern fisheries beyond national jurisdiction. The FAO concluded in 2011 the International Guidelines on Bycatch Management and Reduction of Discards. These guidelines reflect a commitment to implement the 1995 Code of Conduct for Responsible Fisheries designed to promote “the maintenance, safeguarding, and conservation of biodiversity of ecosystems by minimizing fisheries impacts on non-target species and the ecosystem in general.”24 As with the other guidelines discussed in this section, the intention behind the Bycatch and Discard guidelines was to provide specific advice to States and RFMOs in implementing an ecosystem approach to fisheries. In terms of governance, States were encouraged in the development and implementation of any policies, legal frameworks, or institutional frameworks to take into consideration “the application of an ecosystem approach to fisheries” that would be consistent with UNCLOS and the UN Fish Stocks Agreement.25 Particularly, States and RFMOs in addressing bycatch and discards, two of the most difficult aspects of fisheries management, should undertake fisheries management planning based on an ecosystem approach to fisheries.26

23

FAO Guidelines for the Management of Deep-sea Fisheries in the High Seas (2009) para. 42. Available at http://www.fao.org/docrep/011/i0816t/i0816t00.htm. 24 FAO, International Guidelines on Bycatch Management and Reduction of Discards (2011). Available at http://www.fao.org/3/ba0022t/ba0022t00.pdf. 25 Id. at para. 3.1.2(i) and 3.2.1. 26 Id. at para. 4.1.1.

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Taken together, the three sets of guidelines on implementing an ecosystem approach, deep-sea fisheries, and bycatch management offer normative approaches for States to further implement their obligations under Article 61 and Article 119 of UNCLOS. With the increasing pressures on ecosystems caused by the dual climate change impacts of warming oceans and acidifying waters, FAO faces significant challenges in adapting the existing concepts of ecosystem-based management to a changing climate. FAO has undertaken some work by recognizing the regional variability that climate change will have on fisheries including the migration of some tropical species in the Mediterranean and the redistribution of some pelagic species such as tuna across the Pacific Ocean.27 Climate variability and fisheries management adaptation are areas where the FAO is likely to be play an increasingly important role as a “norm entrepreneur.” FAO has given special attention to the impact that extreme events such as floods, droughts, and tropical storms may have on fishery resources including aquaculture resources. In order to enhance resilience of fishermen and fish farmers, FAO is working to apply risk and vulnerability reduction measures that support “the promotion of responsible and sustainable management for fisheries and aquaculture following the ecosystem approach to fisheries and to aquaculture.”28 In keeping with the commitment to better manage bycatch and reduce discards, part of the FAO effort includes developing “a micronutrient rich fish based by-product” that will be distributed in emergencies.29 Institutionally, the FAO continues particularly through the Committee on Fisheries (COFI) to consider how it can offer additional assistance through strengthening existing and starting new relationships to further the ecosystem based approach. FAO has been involved in a number of projects involving an ecosystem approach to fisheries including the “EAF Nansen Project” that has resulted in the finalization of 16 fisheries management plans based on ecosystem based approaches, the updating of transboundary analyses using an ecosystem approach for shared living marine resources in the Caribbean Large Marine Ecosystem, support for implementation of the Bay of Bengal’s Large Marine Ecosystem project, and the mainstreaming of ecosystem approaches to fisheries in the Mediterranean Sea Large Marine Ecosystems.30 In 2016, at the 32nd Session of COFI, FAO highlighted additional projects where the organization has provided support for further implementing an ecosystem approach to fisheries including: 27

FAO, Fisheries, Aquaculture and Climate Change: The Role of Fisheries and Aquaculture in the Implementation of the Paris Agreement, (2016). Available at http://www.fao.org/3/a-i6383e.pdf. 28 FAO Committee on Fisheries, Thirty-second Session, (11–15 July 2016), Global and Regional Processes, COFI/2016/8 at para. 67. 29 Ibid. 30 FAO Contribution to Part I of the Report of the Secretary-General on Oceans and the Law of the Sea, (28 January 2015) Sixteenth Meeting of the United Nations Open-Ended Informal Consultative Process on Oceans and the Law of the Sea: “Oceans and Sustainable Development: Integrations of the Three Dimensions of Sustainable Development, Namely Environmental, Social and Economic” Annex 2, pp. 27–28.

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1) Collaborating with the Convention on Biological Diversity Secretariat in implementing the Code of Conduct for Responsible Fisheries and the Ecosystem Approach to Fisheries by improving reporting on CBD Biodiversity Target 6 that protect target marine commercial species from overfishing but more broadly marine ecosystems.31 2) Assisting intergovernmental organizations such as the Lake Chad Basin Commission in developing a fisheries management plan based on an ecosystem approach to fisheries and focused on alleviating poverty.32 While the FAO has not expressed views on whether high seas fisheries should or should not be covered in any agreement negotiated as part of an international instrument on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ negotiations), FAO has participated actively in intergovernmental meetings by sharing knowledge based on the ecosystem approach to fisheries. For example, in 2016, FAO offered the ecosystem approach to fisheries as a framework for potentially assessing environmental impacts within areas beyond national jurisdiction. FAO noted that the EAF framework: [I]ncludes a risk-based framework to address impacts of fishing, including environmental impacts and calls for appropriate management measures where high or moderate risk level are identified. This framework also provides for explicitly addressing external impacts, both natural and human induced, that may impact set management objectives in relations to fisheries, and could serve as a strategic tool to identify possible cumulative effects.

FAO also encouraged negotiators, if the scope of the BBNJ negotiations includes fisheries, to take into consideration FAO’s guidance on impact assessments for vulnerable marine ecosystems provided for in the Deep-sea fisheries Guidelines. These guidelines that have been adopted by six of the RFMOs that manage deep-sea fisheries in areas beyond national jurisdiction provide concrete advice for what information States and regional fisheries management organization should collect and evaluate in conducting assessments including and a process.33 Since UNCLOS has come into effect, FAO has through the designation of technical guidelines based on an ecosystem approach to fisheries become an important institution for Id. at para. 28–30 (FAO’s report noted that “this type of collaboration offers a key opportunity to create synergies with regard to facilitating the achievement of Aichi Target 6 and improving the related reporting by building on existing areas of work within the two respective organisations”). 32 Id. at para. 52. 33 FAO Guidelines for the Management of Deep-sea Fisheries in the High Seas (2009) supra note 33 para. 47 (To determine whether deep-sea fishing is likely to cause a significant adverse impact, FAO recommends that States address the following topics: 31

i. type(s) of fishing conducted or contemplated, including vessels and gear types, fishing areas, target and potential bycatch species, fishing effort levels and duration of fishing (harvesting plan); ii. best available scientific and technical information on the current state of fishery resources and baseline information on the ecosystems, habitats and communities in the fishing area, against which future changes are to be compared; iii. identification, description and mapping of VMEs known or likely to occur in the fishing area;

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supporting States and other intergovernmental organizations (particularly RFMOs) in making progress to protect not just target species but both species “associated with or dependent upon harvested species” and critical habitats. While UNCLOS did not contemplate the rise of marine-based aquaculture as a major contributor to the food supply, the FAO has taken on the responsibility of providing technical advice in support of coastal aquaculture ventures reflected in the change of the FAO Fisheries Department to the FAO Fisheries and Aquaculture Department. In 2007, FAO through COFI noted that the ecosystem approach to fisheries “was the appropriate and necessary framework for fisheries management” and that “aquatic production” should “follow an ecosystem approach to aquaculture.”34

3.2

Combatting IUU Fishing: Port State Measures Agreement

Illegal, unreported, and unregulated fishing (IUU fishing) has been a chronic problem for international fisheries management. While the term “IUU fishing” was not used by the UNCLOS negotiators in 1982, the treaty acknowledges the need for enforcement capacity by States to protect marine resources. Under Article 62, coastal States who are responsible for creating a fisheries management system for the utilization of marine living resources are empowered to create laws and regulations for purposes of enforcement procedures.35 Article 73 provides that coastal States may for activities within its exclusive economic zone board, inspect, arrest, and initiate judicial proceedings against foreign vessels as part of the exercise of sovereign rights to conserve and manage living resources. While coastal States can impose penalties on foreign vessels, coastal State enforcement has been uneven across the world because effective enforcement depends on availability of enforcement vessels,

iv. data and methods used to identify, describe and assess the impacts of the activity, the identification of gaps in knowledge, and an evaluation of uncertainties in the information presented in the assessment; v. identification, description and evaluation of the occurrence, scale and duration of likely impacts, including cumulative impacts of activities covered by the assessment on VMEs and low productivity fishery resources in the fishing area; vi. risk assessment of likely impacts by the fishing operations to determine which impacts are likely to be significant adverse impacts, particularly impacts on VMEs and low-productivity fishery resources; and vii. the proposed mitigation and management measures to be used to prevent significant adverse impacts on VMEs and ensure long term conservation and sustainable utilization of low-productivity fishery resources, and the measures to be used to monitor effects of the fishing operations). 34 FAO, COFI, Report on the Twenty-seventh Sessions of the Committee on Fisheries, (5–9 March 2007), para. 49. 35 Id. at Art. 62(4)(k).

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capacity building to investigate fishery violations, and an absence of corruption within enforcement agencies. For some States, coastal State enforcement has been more of an aspiration than a reality. At the same time that FAO member States concluded a number of fishery-related instruments including the 1993 FAO Compliance Agreement, the 1995 Code of Conduct for Responsible Fisheries, the 1995 UN Fish Stocks Agreement, and the 2001 FAO International Plan of Action to Prevent, Deter and Eliminate IUU Fishing, the FAO also recognized the limitations of relying heavily on flag state enforcement and coastal state enforcement. In 2005, the COFI supported a non-binding “Model Scheme on Port State Measures to Combat IUU Fishing.”36 Based on existing port inspections of vessels for pollution and safety related violations, the Scheme focused on designating specific ports for foreign fishing vessels, requiring foreign fishing vessels to provide certain information in advance, and undertaking port inspections of vessels suspected to be engaged in IUU fishing. With support from the parties to the UN Fish Stocks Agreement meeting at a review conference, FAO developed a draft of a legally binding set of port state measures for consideration by States and RFMOs. The Port State Measures Agreement (PSMA) was formally adopted in 2009 and came into force in June 2016 with thirty parties.37 FAO’s involvement in the development of this treaty designed to end fishing practices undermining good fisheries management reflects a creative role for the FAO in re-imagining approaches to fisheries enforcement. Significantly, the European Union and the United States as the two largest importers of global fish have ratified the PSMA.38 Even though the United States is not yet a party to UNCLOS, these two States are now obliged to improve the monitoring and inspections of foreign fishing vessels in their ports. By assisting with the creation of the PSMA, the FAO assisted States concerned with combatting IUU fishing by creating a complementary treaty to improve the enforcement of UNCLOS by creating a legal mechanism for port state jurisdiction over fisheries related matters. As with the introduction of its guidelines on ecosystem approaches to fisheries, the FAO’s work on the PSMA provides a highly practical approach for States seeking to implement national port state measures requiring. The text particularly in the annexes that form an integral part of the agreement provide resources that can be immediately used by States in their implementation process.39

36 Model Scheme on Port State Measures to Combat Illegal, Unreported and Unregulated Fishing (2007). 37 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (2009). The agreement as of February 2019 has 61 parties including the European Union). 38 The European Union approved the Port State Measures Agreement on July 7, 2011. The U.S. ratified the treaty on February 26, 2016. Available at http://www.fao.org/fileadmin/user_ upload/legal/docs/037s-e.pdf. 39 Annex A provides a form with specific information to be provided in advance by vessels requesting port entry, Annex B provides a list of duties for Port State inspectors, Annex C provides a form to be used by Port Inspectors to provide the results of their inspection, Annex D provides for

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Guidelines for Securing Sustainable Small-Scale Fisheries

UNCLOS specifically recognizes the vulnerability of small-scale fisheries. In Article 61, States recognized the “economic needs of coastal fishing communities” as a factor that conditions how coastal States should calculate a maximum sustainable yield for fisheries resources. The FAO has given special attention to assisting smallscale fishers operating particularly in coastal fisheries.40 With coastal fisheries providing a critical source of protein for at least 4.3 billion people, the FAO has focused on enhancing protection of these fisheries and the local fishers who utilize these fisheries as an essential part of enhancing food security.41 As part of the Coastal Fisheries Initiative that FAO has been coordinating to promote large marine ecosystem management, the FAO has worked with a wide variety of stakeholders including FAO members, fishers, traditional and customary authorities, and others to draft a set of “Voluntary Guidelines”. While UNCLOS is not mentioned in these guidelines except for a general reference to international law, central concepts such as the ecosystem approach to fisheries are central to the guidelines.42 FAO’s work is noteworthy because it bridges between public international law instruments such as UNCLOS and international human rights instruments. The guidelines adopt a human rights approach to sustainability by connecting activity of fishing and the health of fisheries with the protection of human rights. For States, FAO’s contribution to these guidelines is also significant in terms of assisting FAO States, most of whom are also members of UNCLOS, to offer some content to concepts negotiated under UNCLOS but not elaborated upon. For example, while the UNCLOS preamble provides that the law of the sea should be applied to “promote the economic and social advancement of all peoples”, the FAO guidelines provide specific examples of how States and other stakeholders might be able to achieve this objective. The guidelines offer a concrete example of socio-economic developing through the State protected determination of the use and tenure rights to coastal fisheries in a manner that safeguards small-scale fishing communities.43 The FAO guidelines acknowledge not just the economic needs of coastal fishing communities but also the broader social needs. In this way, the specific information about how to code information to be used for sharing with other Parties to the PSMA and Annex E offers a set of general guidelines to be used by States in developing a training program for Port Inspectors. 40 Westlund and Zelasney (2019). 41 Food and Agriculture Organization, Increasing the Contribution of Small-Scale Fisheries to Poverty Alleviation and Food Security, FAO Technical Guidelines for Responsible Fisheries 10 (2005). 42 FAO, Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries in the Context of Food Security and Poverty Eradication (2015). Available at http://www.fao.org/3/a-i4356en.pdf Guideline 3 (Recognizing the ecosystem approach to fisheries as part of a principle to pursue “holistic and integrated approaches”). 43 Id. at Principle 5a.

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guidelines serve to articulate collective understandings about marine resources that were not made explicit in UNCLOS. The guidelines provide specific guidance to States linking human needs with ecological needs. In UNCLOS, Article 63 provides that where two States share a stock between their exclusive economic zones, the States should either directly or through an intergovernmental organization “agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks.” This Article appears to focus primarily on the “needs” of the stock. The FAO guidelines enhance Article 63 by reminding States that share fishery resources not just to coordinate conservation but also “to ensure that the tenure rights of small-scale fishing communities” are protected in transboundary contexts.44 As with other terms found in the UNCLOS text such as “associated species”, the Guidelines provides additional understandings of how States and other stakeholders should interpret the treaty. Article 94 provides that flag states have a duty to “ensure safety at sea” in relation to “labour conditions. . .taking into account the applicable international instruments.” Principle 6.12 of the guidelines spells out expectations for States. Specifically, that States should in order to protect human rights for smallscale fishers “address occupational health issues and unfair working conditions of all small-scale fishers and fish workers” and ensure that systems do not have forced labour. While the Guidelines are not binding, they may be relied upon by States in developing their labour laws and other groups to put political pressure on States to reform laws. For example, in Southeast Asia, a multi-stakeholder group funded by International Fund for Agriculture and Development including fishing communities and government representatives met in 2016 to develop a “Southeast Asian Regional Approach” to implementing the FAO guidelines through a series of “action points” all of which were specifically tied to the content of the FAO guidelines.45 The development of these guidelines offer States a normative tool to implement not just UNCLOS obligations but also other international legal obligations including the progressive realization of economic and social development rights.

3.4

Flag State Performance

While the issue of flag State responsibility for IUU fishing activities is not directly addressed in UNCLOS, the International Tribunal for the Law of the Sea has recognized that flag states have general obligations particularly under Article

44

Id. at Principle 5.19. Regional Workshop on Securing Sustainable Small-Scale Fisheries in the Lower Mekong Region: SSF Guidelines in Action (30 April–1 May, 2016), Thailand. Available at https://sites.google.com/ site/ssfguidelines/thailand/statement. 45

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94 and 192.46 Of particular concern in the context of ending IUU fishing has been the practice of using “flags of convenience” by some fleet owners to create a cover for IUU fishing.47 In addition to the work that the FAO has undertaken to address IUU fishing through the Port State Measures Agreement, the FAO has also sought to improve the performance of flag states who allow their flag to be used by fishing vessels. In an area that is sensitive because it raises issues of sovereignty in terms of the right to register vessels, the FAO has provided a voluntary set of guidelines for State to measure their performance.48 States adopting the guidelines should undertake to apply the content of the guidelines to “fishing and fishing related activities in maritime areas beyond national jurisdiction” that might including fish packaging, fish processing, transhipping, fish transport, or provisioning of crew and supplies to vessels used for “fishing and fishing related activities.”49 Generally and in keeping with UNCLOS obligations, flag states adhering to the guidelines are expected to take “such measures as may be necessary to ensure that vessels flying its flag do not engage in any activity that undermines the effectiveness of international conservation and management measures” and to ensure that its flagged vessels “do not conduct unauthorized fishing and fishing related activities within areas under the national jurisdiction of other States.”50 More importantly, the guidelines offer specific indicators of the content of what might constitute a flag’s states’ obligations of conduct in relation to other States. Within the guidelines, these potential obligations of conduct are grouped into categories including fisheries management, information exchange, registration procedures, maintenance of records, authorization of fishing activities, monitoring and enforcement, and cooperation with coastal States. In many cases the Guidelines offer a minimum standard that could over time either form the basis for a generally accepted international rule or standard under UNCLOS or become the standard. For example, in relation to fishing authorization, States should put into place a fishing license regime that requires at least the name of a vessel, the areas for fishing, the time for fishing, the authorized species and gear, the “scope” of fishing (e.g. amount of fish that may be taken) and “where appropriate” reference to any other relevant management measures.51 If a State expects to be challenged for a violation of flag state responsibility, a State could look to the FAO guidelines as a standard against which a State’s obligations of due diligence might be measured. If a contentious case was to be brought on the matters that ITLOS advised

46

ITLOS Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (2 April 2015), Case No. 21, Advisory Opinion para. 111. 47 Ferrell (2005). 48 FAO Voluntary Guidelines for Flag State Performance (2015). Available at http://www.fao.org/3/ a-i4577t.pdf. 49 Id. at para. 3–4. 50 Id. at Paragraphs 7 and 9. 51 Id. at Paragraph 29.

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on in its 2015 Advisory Opinion, the FAO guidelines would be a likely source of evidence to determine what constitutes an “obligation of conduct”.52 While the concept of flag state responsibility continues to create challenges for international fisheries enforcement with the continued practice of States issuing “flags of convenience”,53 the existence of the 2015 guidelines provides a template for a State to measure its performance through either self-assessment or an external assessment.54 While no State has done so, a conscientious State, relying on the guidelines, might be able to reference the guidelines as a basis for placing a national moratorium on fishing vessel registrations until it has a framework in place capable of meeting the minimum assessment criteria of the guidelines. The guidelines provide a specific “checklist” tool for States with technical capacity to assist other States in substantively improving their capacity to exercise effective jurisdiction and control.

3.5

Network of Regional Fisheries Bodies

Under the Law of the Sea, States are encouraged to cooperate through regional fisheries organizations.55 While the FAO does not create regional fisheries management organizations, it has historically facilitated interaction between the organizations as observers to the FAO Committee on Fisheries that has been meeting since 1965. More recently, the FAO has been coordinating a Regional Fishery Body (RFB) Secretariats’ Network that has been meeting biennially since March 2007 as an informal platform for fisheries organizations to seek advice and exchange information on matters of common concern. The RFB Secretariats’ Network offers widely dispersed regional governance bodies an epistemic community to strengthen relations between regional fisheries bodies as well as assist these groups in institutional problem-solving. The network is envisioned as a place for both brainstorming and creating new alliances based on common concerns. As a result of the network, several regional fisheries management organization met in 2017 to discuss how their organisations can support efforts by States to implement the Port State Measures Agreement within their geographic jurisdiction. FAO convenes the network meetings on a regular basis and provides support for the delivery of a quarterly newsletter with content from the regional fishery bodies. In 2018, RFBs shared their specific efforts to achieve UN Sustainable Development Goals through a variety of programs 52

ITLOS Advisory Opinion, supra note 46, para. 129. The ability of private owners to obtain a flag on an open registry without needing to provide a verifiable “genuine link” to the flag State operates with the same dynamics of international tax havens. On the one hand, there appears to be legitimacy in having a registered boat. On the other hand, a lack of a genuine link with a flag serves to mask illegitimate behavior if a flag state fails to monitor, control, or enforce against registered boats. 54 FAO Voluntary Guidelines for Flag State Performance (2015), supra note 48, para. 45–46. 55 Arts 61, 63, 66, 118, and 119, UNCLOS. 53

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including supporting professional training for women in the fisheries sector, improving science-based management, protecting sharks, improving stock assessments, and sustainably managing bycatch.56 While the RFB Secretariats’ Network operates independently of the FAO, the Chair of the network collaborates with the Secretary of the network who is an FAO expert. In some respects, the current arrangement also allows for the FAO to extend its sphere of expertise by providing a significant venue to share with fishery governance leaders critical FAO experiences.

4 Conclusion FAO has played three significant roles in the implementation of UNCLOS. First, they have provided key technical and practical elaborations on concepts that are embodied in UNCLOS but not defined. For example, FAO’s work on ecosystem approaches to fisheries provides practical advice for States and fisheries organizations in implementing duties regarding not just target species but also species “associated with and dependent on” target species. Second, the FAO has undertaken to design creative solutions to sticky policy matters. In the arena of IUU fishing, the FAO provided key support in developing the structure for a new port-based fisheries enforcement process not explicitly contemplated by UNCLOS but supported by the UNCLOS regime. The FAO has also creatively tried to assist with improving the performances of flag states in the arena of fisheries enforcement- a notoriously difficult problem with vessels registered to flags of convenience. Third, the FAO through the COFI and through its ongoing efforts to facilitate regional fisheries bodies has provided a key bridging role between States and fisheries-related intergovernmental organizations. The FAO operates as a key contributor to the implementation of UNCLOS not only by assisting States but also through its own efforts based on its delegated and derivative powers. International civil servants working for FAO to support the efforts of States to improve international fisheries management are contributing to new normative frameworks. While recovery of marine fisheries stocks will be slow, FAO’s continued investment into new enforcement ideas and collecting technical knowledge about the status of fisheries should improve global fishing practices by offering States viable alternatives to a world of emptying seas including large-scale aquaculture to offset the existing pressure on marine resources to meet nutritional needs. Where will FAO exercise its derivative powers next to improve sustainability? One possibility to build on the existing efforts of many States to enforce fisheries violations would be to improve enforcement on the high seas. In 2018 and

56 Regional Fishery Body Secretariats’ Network. Available at http://www.fao.org/3/ca0133en/ CA0133EN.pdf (July 2018).

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subsequent years, States are negotiating a new implementing treaty to regulate certain activities on the high seas. Many States have expressed concerns to protect the freedoms associated with the high seas. A chronic problem already highlighted by FAO work on flag state responsibilities is the negligent flag state that fails to supervise vessels flagged to its registries for both labour and environmental violations. Perhaps, the FAO exercising its personality might partner with enforcement vessels from FAO member States or hire its own enforcement vessels in order to assert FAO enforcement jurisdiction over the high seas on behalf of the FAO. It has been many years since the UN flag has flown on a fleet of vessels but it is theoretically possible that the FAO could raise the UN flag to lead an effort on behalf of the FAO to combat illegal, unreported, and unregulated fishing and improve flag state control.57 Perhaps this is the next step in innovation to ensure adequate enforcement of global policies. If not, the FAO based on past performance is likely to continue to experiment with and propose new policy approaches to shared intransigent problems involving conservation of natural resources.

References Amerasinghe CF (2005) Principles of the institutional law of international organisations, 2nd edn. University Press, Cambridge Ferrell J (2005) Controlling flags of convenience: one measure to stop overfishing of collapsing fish stocks. Environ Law 35:323 International Court of Justice (1949) Reparation of or Injuries Suffered in the Service of the United Nations I.C.J. Reports 174 International Tribunal for the Law of the Sea (2015) Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (2 April 2015), Case No. 21, Advisory Opinion Kelsen H (1951) The law of the United Nations. A critical analysis of its fundamental problems. Frederick A. Praeger, New York March J, Olsen J (1998) The institutional dynamics of international political orders. Int Organ 52 (4):943–969 Meyers H (1967) The nationality of ships. Martinus Nijhoff, The Hague Park S (2006) Theorizing norm diffusion within international organizations. Int Polit 43 (3):342–361 Rama-Montaldo M (1970) The international personality and implied powers of international organisations. Br Yearb Int Law 44:111–156 Schmerers H, Blokker N (2011) International institutional law. Brill, Leiden-Boston Weissburg G (1961) The international status of the United Nations. Oceana Publications, New York

57 In the Suez Canal in 1956 and 1957, the UN Suez Canal Operation chartered numerous ships from private parties that were then deployed as part of a UN project. The ships were provided with privileges and immunities available to the United Nations and flew the UN flag from its stern in place of their national flag while operating in the Suez Canal area. Meyers (1967), pp. 333–334; Art. 93 of UNCLOS provides that certain obligations related to nationality and status of ships “do not prejudice the question of ships employed on the official service of the United Nations, its specialized agencies or the International Atomic Energy Agency, flying the flag of the organization.”

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Westlund L, Zelasney J (eds) (2019) Securing sustainable small-scale fisheries: sharing good practices from around the world. FAO Fisheries and Aquaculture Technical Paper No. 644

Documents FAO (2003) Ecosystem Approach to Fisheries Guidelines, Technical Guidelines for Responsible Fisheries, No. 4, Suppl. 2. Available at http://www.fao.org/3/a-y4470e.pdf FAO (2005) Increasing the Contribution of Small-Scale Fisheries to Poverty Alleviation and Food Security, Technical Guidelines for Responsible Fisheries 10 FAO (2009) Guidelines for the Management of Deep-sea Fisheries in the High Seas. Available at http://www.fao.org/docrep/011/i0816t/i0816t00.htm FAO (2009) The Ecosystem Approach to Fisheries, The Human Dimensions of the Ecosystem Approach to Fisheries, Technical Guidelines for Responsible Fisheries, No. 4, Suppl. 2, Add. 2. Available at http://www.fao.org/3/a-i1146e.pdf FAO (2011) International Guidelines on Bycatch Management and Reduction of Discards (2011). Available at http://www.fao.org/3/ba0022t/ba0022t00.pdf FAO (2015) Contribution to Part I of the Report of the Secretary-General on Oceans and the Law of the Sea, Sixteenth Meeting of the United Nations Open-Ended Informal Consultative Process on Oceans and the Law of the Sea: “Oceans and Sustainable Development: Integrations of the Three Dimensions of Sustainable Development, Namely Environmental, Social and Economic” FAO (2015) Voluntary Guidelines for Flag State Performance. Available at http://www.fao.org/3/ai4577t.pdf FAO (2015) Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries in the Context of Food Security and Poverty Eradication (2015). Available at http://www.fao.org/3/a-i4356en.pdf FAO (2016), Fisheries, Aquaculture and Climate Change: The Role of Fisheries and Aquaculture in the Implementation of the Paris Agreement. Available at http://www.fao.org/3/a-i6383e.pdf FAO (2017) Basic Texts of the FAO (Volume 1). Available at http://www.fao.org/3/K8024E/ K8024E.pdf FAO, (2016) The State of World Fisheries and Aquaculture. Available at http://www.fao.org/3/ai5555e.pdf

Anastasia Telesetsky Professor of Law at the University of Idaho, College of Law, where she teaches international environmental law. Co-author of Ocean and Coastal Management Law in a Nutshell (5th ed) and co-author of Comparative and Global Environmental Law and Policy (Wolters Kluwer 2020). Member of IUCN World Commission on Environmental Law.

Chapter 13

Maritime Surveillance of the EU External Sea Borders: Extensive Approaches and Operational Challenges to the Principles of Coastal and Flag State Jurisdiction in Italy Marco Fantinato

Abstract During joint operations in the Mediterranean, the European Border and Coast Guard agency (Frontex) has contributed to the implementation and development of the law of the sea. Under Frontex-led activities, frontline Member States such as Italy have encouraged an extensive interpretation of the United Nations Convention on the Law of the Sea provisions to extend the application of enforcement powers on the high seas. However, in an effort to intercept foreign ships suspected of having disembarked migrants on the Italian shores, border guard authorities started to intercept those ships directly on the high seas. Since these interception measures could have a significant impact on the freedom of navigation on the high seas, these practices should always find their legal basis in the key principles enshrined in the law of the sea and in other international law instruments. Against this backdrop, this essay firstly focuses on the existing provisions regulating flag State jurisdiction, right of visit and right of hot pursuit in migrant smuggling operations on the high seas. Secondly, this analysis presents the evolution of the exercise of coastal State jurisdiction through the development of maritime interception practices adopted during Frontex operations. In the last part, accountability and responsibility during these maritime operations will also be discussed. The aim of this chapter is to present extensive legal approaches in the exercise of coastal States’ jurisdiction while highlighting a recent trend in using interception measures that could potentially affect the principle of exclusive flag State jurisdiction on the high seas.

M. Fantinato (*) Guardia di Finanza, Rome, Italy © Springer Nature Switzerland AG 2020 M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea, https://doi.org/10.1007/978-3-030-42671-2_13

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1 Introduction During the last 5 years, migratory flows by sea have attracted considerable attention on the international media and increased resonance in policy debates at regional and international level. The narrative is replete with stories of migrants trying to cross the Mediterranean Sea using unseaworthy boats while trying to reach European shores to seek better opportunities and international protection. These desperate and hazardous journeys are often organised by criminal networks that feed on the business of smuggling migrants towards the EU. In the fight against transnational criminal organisations that smuggle irregular migrants across the Mediterranean, the European Border and Coast Guard agency (hereinafter Frontex) facilitates the coordination of Members States’ technical support in international joint operations at sea. In particular, Frontex coordinates the deployment of additional technical equipment for maritime operations (e.g. aircraft, helicopters and patrol vessels) and specially-trained teams of border guards by providing such support and expertise where needed or upon request by Member States. In this field, Frontex promotes early-interception techniques and pre-frontier monitoring activities that allow the agency to react promptly to cross-border threats by sea. As a result, law enforcement operations are progressively taking place on the high seas where concepts like ‘exclusive flag State jurisdiction’, ‘right of visit’ and ‘right of hot pursuit’ find their application in accordance with the international law of the sea. Over the years, Frontex contributed to an extensive interpretation of the existing international law provisions in order to extend coastal States’ jurisdiction on the high seas. Recently, however, regardless of the safeguards enshrined in its founding regulation,1 Frontex-led operations are increasingly contributing to adopt maritime interception practices that, in the name of border security, could ultimately weaken the principle of exclusive jurisdiction of flag States on the high seas.

1

Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC.

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2 Flag State Jurisdiction and Migrant Smuggling Operations on the High Seas The United Nations Convention on the Law of the Sea2 (hereinafter UNCLOS) does not contain any legal provision that was originally intended to prevent irregular migration on the high seas. As some scholars pointed out, the only mention that might be relevant in this field is the reference made to the ‘slave trade’ (Art. 110, para. 1, lett. b) which could be assimilated to human trafficking.3 However, in order to specifically address and properly regulate the migrant smuggling phenomenon, the United Nations adopted the Protocol against the Smuggling of Migrants by Land, Sea and Air (hereinafter Smuggling Protocol) that was annexed to the Convention against Transnational Organised Crime (UNTOC) adopted in Palermo in 2000.4 However, during maritime surveillance operations against migrant smuggling by sea, along with other international law instruments, border police officers regularly apply the UNCLOS provisions to exercise their enforcement powers on the high seas. In particular, two articles that are often used to exercise coastal State’s jurisdiction on the high seas are the ‘right of visit’ (Article 110) and the ‘right of hot pursuit’ (Article 111). Regarding the ‘right of visit’, a warship has the right to board a foreign ship on the high seas only if there is reasonable ground for suspecting that the foreign ship is engaged in piracy, slave trade, unauthorised broadcasting or in case the ship is without nationality.5 This latter case is particularly relevant for anti-smuggling operations on the high seas because migrant boats are usually flagless or use flags of convenience that smugglers change during the course of their journey across the Mediterranean. Since the Article 92 of the UNCLOS expressly forbids that a ship may change its flag during its voyage, except under the circumstance of a real transfer of ownership or change of registry, a ship that sails under the flags of two or more States, using them according to convenience, it may be assimilated to a ship without nationality.6 On the contrary, when a ship is legitimately flying a foreign flag on the high seas, its flag represents a genuine link with the State and thus such a ship shall be subject to the exclusive jurisdiction of that State, save in exceptional cases expressly provided for in international conventions or bilateral and multilateral treaties.7 In this regard, the Article 8 of the Smuggling Protocol establishes the measures that can be taken against the phenomenon of the smuggling of migrants on the high 2

United Nations Convention on the Law of the Sea, with Index and Final Act of the Third United Nations Conference on the Law of the Sea, 1983. 3 Papanicolopulu (2016). 4 Protocol against the Smuggling of Migrants by Land, Sea and Air, Annex III of the United Nations Convention against Transnational Organised Crime, Palermo, 2000. 5 See Art. 110 (Right of visit), UNCLOS. 6 See Art. 92 (Status of ships), UNCLOS. 7 See Art. 87 (Freedom of the high seas), UNCLOS.

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seas.8 Specifically, a warship that has reasonable grounds to suspect that a foreign ship is engaged in the smuggling of migrants on the high seas, before boarding the foreign ship, it should request prior confirmation of registry to the flag State to verify the ship’s right to fly its flag. If nationality is confirmed, the warship shall request the authorisation to board and search the vessel from the flag State. If evidence is found that the vessel is engaged in the smuggling of migrants on the high seas, the warship shall request the authorisation from the flag State to take appropriate measures with respect to the vessel, persons and cargo on board. In this case, a warship that has taken any measure with respect to a foreign vessel suspected of smuggling migrants on the high seas, it shall promptly inform the flag State concerned of the results of that measure. As it is possible to infer from these detailed provisions, the concept of flag State jurisdiction applies even though a foreign ship engaged in the smuggling of migrants is intercepted on the high seas. In fact, any measure taken with respect to a foreign vessel suspected of smuggling migrants on the high seas, it shall be subject to the flag State’s authorisation under specific conditions to be agreed with the requesting State. Likewise, a warship shall take no additional measures without the express authorisation of the flag State, except those strictly necessary to save the lives of persons in distress at sea or those which derive from relevant bilateral and multilateral agreements.

3 The Right of Hot Pursuit in Irregular Migration Events at Sea A provision that is particularly relevant during law enforcement operations at sea is the ‘right of hot pursuit’ which is enshrined in the Article 111 of the UNCLOS.9 This norm provides that the pursuit of a foreign ship may be undertaken when a coastal State has good reason to believe that the ship has violated its laws and regulations. However, such pursuit must be commenced when the foreign ship is notably in the territorial sea or the contiguous zone and may only be continued outside these zones if the pursuit is uninterrupted.10 In line with the Article 111(5), the ‘right of hot pursuit’ may be exercised only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorised to that effect. Usually, during Frontex operations, such a pursuit may be commenced either by an aircraft or helicopter of any participating Member States and then followed up by a warship

8 See Article 8 (Measures against the smuggling of migrants by sea) of the Protocol against the Smuggling of Migrants by Land, Sea and Air. 9 See Art. 111 (Right of hot pursuit), UNCLOS. 10 Art. 111(1-2). Mussi (2016), pp. 23–43.

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of the host Member State, provided that the pursuit began in the territorial sea or contiguous zone and was not interrupted. The ‘right of hot pursuit’ ceases as soon as the ship pursued enters the territorial sea of its own State or of a third State, unless there are bilateral agreements between the pursuing State and the flag State that establish different rules of engagements.11 If the foreign ship is within a contiguous zone, the hot pursuit may only be undertaken if there has been a violation of the laws and regulations for the protection of which the zone was originally created. In this regard, the Article 33 of the UNCLOS establishes that the coastal State may exercise its jurisdiction as necessary to prevent and punish the infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea.12 As a result, in case of the pursuit of a foreign ship that has disembarked migrants onshore, a warship may proceed to intercept that foreign ship on the high seas also if the chase has begun in the contiguous zone. Conversely, if a foreign ship that has disembarked migrants onshore is intercepted directly on the high seas, without any hot pursuit executed by a coastal State’s warship from territorial sea or contiguous zone, the Article 111 does not find any practical application. In this case, the ‘right of visit’ shall be subject to the limitations of the principle of the ‘freedom of the high seas’ as established by the Article 110 of the UNCLOS13 and the Article 8 of the Smuggling Protocol.14

4 Frontex Joint Operations and Coastal State Jurisdiction Joint operations coordinated by Frontex in the Mediterranean Sea have increased the capacity of Member States to patrol well beyond their territorial seas. For instance, during Frontex joint operation ‘Themis’ in 2018,15 maritime surveillance activities of border police ships deployed at sea were constantly supported by an intense activity of aircraft, helicopters and drone operations coupled with satellite surveillance provided by the European Maritime Safety Agency (EMSA).16 This militarisation of the Mediterranean Sea has clearly enhanced the maritime situational picture of Member States involved in the patrolling of the EU external sea borders

11

Scovazzi (1999), pp. 255–256; Caligiuri (2011), pp. 359–385. See Art. 33 (Contiguous zone), UNCLOS. 13 See supra note 5. 14 See supra note 8. 15 See https://frontex.europa.eu/media-centre/news-release/frontex-launching-new-operation-in-cen tral-med-yKqSc7. 16 The European Maritime Safety Agency (EMSA) is a European Union agency charged with reducing the risk of maritime accidents, marine pollution from ships and the loss of human lives at sea by helping to enforce the pertinent EU legislation. 12

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under the technical coordination of Frontex.17 However, it is worth noting that although participating in an international operation under the aegis of a European agency, Member States always retain primary responsibility for the management of their sections of the external sea borders.18 This improved capacity at sea has led Member States to perform maritime interceptions farther away from their territorial seas while adjusting their modus operandi during law enforcement operations to apprehend migrant smugglers on the high seas. In fact, over the last few years, disproportionate migratory pressures across the Mediterranean Sea have brought about a significant increase in the number of interception operations of migrant boats on the high seas. These events clearly highlighted the need for law enforcement and judicial authorities to take effective measures to secure the arrest of smugglers apprehended on the high seas from an operational and legal perspective. Therefore, in an effort to tackle transnational criminal organisations, during the last 5 years, Italy has confirmed a trend to exercise both enforcement and adjudicative jurisdiction on the high seas.19 In the context of Frontex operations carried out in Sicily and Apulia, Italian border police and the Italian Courts have gradually succeeded in extending criminal jurisdiction on the high seas through an extensive interpretation of the existing national and international legal frameworks. This legal approach found its application also in respect of those smugglers that endangered the lives of migrants at sea by exploiting Search and Rescue operations performed by the coast guard, border police and non-governmental organisations (NGOs) to transport migrants into the Italian territory. During operations that occurred outside the Italian Search and Rescue region, the judge confirmed the possibility of claiming jurisdiction over the smugglers arrested on the high seas. In particular, the Italian Court of Cassation held that smugglers systematically use unseaworthy boats in order to trigger Search and Rescue events. This well-known modus operandi compels the coastal State to act in accordance with the ‘duty to render assistance at sea’20 and transport migrants into Italian territory pursuant to the existing provisions on the place of safety.21 In addition, the Italian Court of Cassation argued that by endangering the lives of migrants, smugglers create a ‘state of necessity’ which is clearly premeditated and whose ultimate goal is to facilitate the entry of migrants into Italian territory under the aegis of Search and Rescue operations.22 Under such circumstances, the distress 17

Bevilacqua (2017), pp. 79–101. See Art. 5 (Shared responsibility) of the Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard. 19 Leanza and Graziani (2014), pp. 163–209. 20 See Art. 98 (Duty to render assistance at sea), UNCLOS. 21 International Convention on Maritime Search and Rescue (chapter 1.3.2) and Resolution MSC.167(78) Guidelines on the Treatment of Persons Rescued at Sea (paragraph 2.5) adopted in May 2004 by the Maritime Safety Committee together with the SAR and SOLAS amendments. 22 Sentence no. 14510/14 of the Italian Court of Cassation. Available at http://www. cortedicassazione.it. 18

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call to the Italian authorities can be considered as an essential fragment of this premeditated criminal design, planned by the smugglers from the very beginning.23 Hence, the satellite phone call placed to the Italian Maritime Rescue Coordination Centre (MRCC) constitutes a direct link to the State that allows the exercise of jurisdiction over ships requesting assistance at sea, including those involved in migrant smuggling on the high seas.24 Likewise, the Italian Court also underlined that pursuant to the legal provisions set forth in its domestic legislation, preparatory acts aimed at facilitating irregular migration that are committed on the high seas can also be punishable under Italian criminal law.25 In this regard, the judge argued that despite the fact that preparatory acts to facilitate the irregular entry were committed on the high seas, thus outside the scope of national jurisdiction, these preliminary actions were undoubtedly intended to compel the Italian border and coast guard authorities to intervene. Therefore, these conducts could also be prosecuted in accordance with the national legal framework. This operational approach was further corroborated by the Italian Court of Cassation and the National Anti-mafia Directorate, both affirming that, along with international law provisions, domestic laws effectively confer upon Italian authorities the enforcement and adjudicative powers to exercise their jurisdiction over unseaworthy vessels placing distress calls to the national authorities in order to be transported into the Italian territory. Against this operational scenario, since 2013, Italian border police authorities operating at sea like the Guardia di Finanza26 have invariably exercised their enforcement powers to intercept migrant boats, seize the ship and arrest the smugglers, regardless of the fact that these events took place outside Italian jurisdiction. Following these early-interception techniques on the high seas, judges and prosecutors began to acknowledge this new methodology by extending the application of the Italian criminal jurisdiction on the high seas. This ad hoc approach adopted by the Italian magistrates laid its foundations for the so-called phenomenon of “creeping jurisdiction” at sea, however, this concept was applied mutatis mutandis in the domain of criminal law. In this regard, it must be noted that the Italian magistrates tried to bridge a gap through “creeping jurisdiction” in order to exercise their powers and arrest migrant smugglers on the high seas while disrupting the model adopted by cross-border criminal organisations.

23

Sentences no. 3345/15 and 6590/2016 of the Italian Court of Cassation. Available at http://www. cortedicassazione.it. 24 Papanicolopulu (2016), pp. 13–15. 25 See Art. 12 of the Italian Legislative Decree no. 286/1998 (Consolidated Immigration Act). 26 Following the entry into force of the Legislative Decree 177/2016, from January 2017 the Guardia di Finanza is the only Italian authority responsible for maritime security while the Italian Coast Guard retains the coordination of all the activities related to the provision of Search and Rescue services in its area of responsibility.

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5 Interception Practices During Frontex Operations and Flag State Jurisdiction Transnational criminal organisations involved in migrant smuggling by sea pay close attention to operational activities performed in the maritime environment. Over the years, criminal networks have adapted their behaviour to law enforcement operations carried out in the Italian waters by trying to elude coastal State’s jurisdiction. This modus operandi stems from the well-known judgement on the Kircaoglu and Sanaga case regarding the seizure of a Turkish ship intercepted in waters beyond the Italian territorial sea.27 In particular, this ship was suspected of smuggling people in violation of the Italian law on immigration and its capture took place after the pursuit by a Guardia di Finanza’s vessel. According to the Italian authorities, the hot pursuit commenced when the Turkish ship was within the Italian contiguous zone. In this judgment, the Court of Cassation addressed the issue of the coastal State’s jurisdiction over the acts committed by a foreign vessel in the contiguous zone.28 In this case, the Court remarked that Italy does not have jurisdiction over acts committed within its contiguous zone by ships flying the flag of a State which is not a contracting party of the UNCLOS. Therefore, following this important sentence, transnational criminal organisations involved in migrant smuggling by sea started to use ships flying Turkish or American flags because these two States did not ratify the UNCLOS. Nevertheless, as already mentioned in the previous paragraphs, in an effort to apprehend migrant smugglers, Italian authorities have been struggling to extend the scope of their operations on the high seas under the aegis of Frontex joint operations. Recently, however, these interception practices adopted by the Italian border police with respect to foreign vessels on the high seas might challenge key principles of the UNCLOS such as the ‘right of visit’, the ‘right of hot pursuit’ and the ‘exclusive flag State jurisdiction’ on the high seas. During the last couple of years, the Italian authorities have intercepted on the high seas many foreign ships suspected of having disembarked migrants onshore both in the southern Mediterranean coasts (Sicily) and in the Adriatic shores (Apulia). In these instances, border police did not have the opportunity to chase these foreign ships and therefore there was no hot pursuit that commenced either in the territorial sea or in the contiguous zone. Notwithstanding, these foreign ships were engaged directly on the high seas and were seized by border police authorities. These enforcement measures were possible because during the verification of the ship’s

27

Sentence no. 32960/2010 of the Italian Court of Cassation. Available at http://www. cortedicassazione.it. 28 It must be noted that the issue of the contiguous zone in Italy has always been controversial. For more information, please refer to Andreone (2011), pp. 1–6.

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rights to fly its flag, it was later ascertained that these ships were flying a convenience flag and thus assimilated to flagless ships.29 In other circumstances though, despite their pursuit was commenced outside territorial sea and contiguous zone, sailboats flying Turkish and American flags that were suspected of having disembarked migrants onshore have been intercepted directly on the high seas. These foreign ships were seized and escorted to Italian ports, and following further investigations, they were linked to irregular migration events that occurred several hours earlier. These latter cases were particularly interesting and unique from both an operational and a legal point of view. In fact, despite the fact that there was no ‘hot pursuit’ that could be invoked by the Italian border police, these sailboats were boarded on the high seas. Later, these ships were conducted to the nearest Italian port without verifying the ship’s right to fly its flag nor by requesting the authorisation from the flag State to take appropriate measures with respect to that foreign vessel involved in migrant smuggling.30 Eventually, these ships were seized while smugglers were arrested and charged with facilitating the irregular entry of migrants who were found on the Italian coastline several hours earlier. During the interviews that border police officer carried out when the foreign ship was escorted to the Italian port, migrants were able to recognise the smugglers who had transported them across the Mediterranean and that had left them on the Italian coasts several hours earlier. Under such circumstances, the Italian authorities were able to exercise criminal jurisdiction because through the migrant’s statements it was possible to establish a connection between the violation of Italian immigration laws that occurred in the territory of the State and the interception of the foreign ships on the high seas.31 Nonetheless, while

See the case of the vessel ANIKA-52 where a Ukrainian vessel flying a Croatian flag of convenience was intercepted during the “Operation ZORA” while trying to smuggle migrants across the Mediterranean Sea. A detailed description of the operation is available in Cataldi (2016), pp. 286–291. 30 See Sentence no. 5157/2018 of the Italian Court of Cassation. Available at http://www. cortedicassazione.it. This case involved the interception on the high seas of the sailboat named KALA which was flying an American flag and was registered in Delaware. On the 8th June 2018, the sailboat was intercepted on the high seas, in front of Apulian shores by the Italian border police authorities because suspected of having disembarked migrants on the Italian territory several hours earlier. This sentence is quite controversial because while recognizing that the boarding on the high seas was not performed in compliance with international law provisions, the Court held that it was possible to intercept the boat on the high seas after a hot pursuit that began in the territorial waters. However, after reading all the acts of the trial, it emerges that the American sailboat KALA with three Ukrainians on board was intercepted and boarded directly on the high seas without any pursuit performed by the Italian border police authorities that began either in the territorial sea or in the contiguous zone. 31 On the 18th March 2017, during Frontex joint operation TRITON in Sicily, a sailboat flying a Turkish flag was boarded on the high seas by the Italian border police authorities because suspected of having disembarked migrants on the Italian shores several hours earlier. The sailboat was detected by a Frontex aircraft at about 40 nm from the Sicilian coasts (high seas) and then intercepted on the high seas. Also in this case, the Turkish sailboat was detected, engaged and boarded directly on the high seas without any hot pursuit performed by the Italian border police 29

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the jurisdiction was applied in accordance with the Italian penal code with respect to those crimes committed outside national territory,32 the interception and boarding of the ship did not comply with international legal framework, thus invalidating the enforcement measures taken by the coastal State at domestic level. In fact, this operational approach seems to collide with the legal provisions enshrined in the UNCLOS (‘right of visit’ and ‘right of hot pursuit’) and the safeguards ensuring the exclusive flag State jurisdiction on the high seas included also in the Protocol against the Smuggling of Migrants by Land, Sea and Air (‘Measures against the smuggling of migrants by sea’).33 Besides, although these foreign ships intercepted on the high seas were flying the flags of States which are not parties to the UNCLOS (USA and Turkey), the enforcement measures taken by border police at sea do not justify this controversial modus operandi which could open a path towards a gradual erosion of the principle of exclusive flag State jurisdiction on the high seas. In this regard, recently the Court of Cassation remarked that in the absence of a ‘distress call’ or a ‘hot pursuit’, the Italian jurisdiction cannot be extended over a foreign ship navigating on the high seas, with particular reference to those flag States that have not ratified the UNCLOS.34

6 Accountability and Responsibility During Frontex Joint Operations Although the above-mentioned practices are often carried out under the aegis of Frontex joint operations, it is worth noting that participating States remain primarily responsible for any behaviour of their agents contravening international law provisions as established by the principle of responsibility of States.35 Moreover, in terms of accountability, Frontex regulation expressly provides that the host Member

authorities and two smugglers were arrested (one Russian and one Ukrainian). A reconstruction of the event is available at http://www.lasicilia.it/news/siracusa/69907/siracusa-catturato-in-alto-mareil-veliero-che-ha-lasciato-a-vendicari-21-profughi.html and at http://www.siracusanews.it/siracusaimmigrazione-clandestina-due-scafisti-ucraini-fermati-dal-gruppo-interforze/. 32 The ‘principle of territoriality’ (principio di territorialità) in the Italian legal framework is defined by the Article 6 of the Italian Penal Code. For more information, please refer to the Art. 6 of the Italian Penal Code. 33 See supra note 8. 34 Sentence no. 14709/2018 of the Italian Court of Cassation. Available at http://www. cortedicassazione.it. 35 See Arts 2 (Elements of an internationally wrongful act of a State) and 5 (Conduct of persons or entities exercising elements of governmental authority) of the text adopted by the International Law Commission at its fifty-third session on the Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law Commission, 2001, vol. II.

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State shall be liable for any damage caused by members of border and coast guard teams during their operations in that Member State.36 Where damages are caused by gross negligence or wilful misconduct, the host Member State may approach the home Member State to claim for reimbursement of any sums it has paid to the victims or to any persons entitled on their behalf. Along the same line of reasoning, the Article 110 of the UNCLOS establishes that, after the exercise of the ‘right of visit’ by a warship, if suspicions prove to be unfounded and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.37 Likewise, also the Article 111 of the UNCLOS provides that where a ship has been stopped or arrested outside the territorial sea in circumstances which do not justify the exercise of the ‘right of hot pursuit’, it shall be compensated for any loss or damage that may have been thereby sustained. As a result, in case of civil liability resulting from interception and boarding operations on the high seas, the host Member State can be held accountable for any damage with respect to foreign ships suspected of migrant smuggling and engaged by border and coast guard authorities directly on the high seas without any prior authorisation from the flag State. In addition, in accordance with Frontex operational procedures,38 during joint international operations, the host Member State exercises command and control over border and coast guard teams deployed by home Member States. Members of the teams may only perform tasks and exercise powers under the instructions from the border and coast guards of the host Member State. Under special circumstances, the host Member State may authorise members of the teams deployed by home Member States to act on its behalf.39 Therefore, also in these cases, the host Member State can be accountable for any misconduct of border and coast guard teams deployed by home Member States in the execution of their tasks during Frontex operations. In fact, the conduct of border and coast guard teams placed at the disposal of the host Member State by the home State, under international law it shall be considered as an act of the host Member State because these teams are acting in the exercise of elements of the governmental authority of the host Member State.40

36

See Art. 42 (civil liability) of the Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard. 37 See supra note 5. 38 See Rules of Engagement (Annex 6) of the Themis Operational Plan, Public Accessible Document version, available upon prior request to the European Agency Frontex. 39 Art. 40 (Tasks and powers of the members of the teams) of the Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard. 40 See Art. 6 (Conduct of organs placed at the disposal of a State by another State) of the text adopted by the International Law Commission at its fifty-third session on the Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law Commission, 2001, vol. II.

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However, according to some scholars, being Frontex an international organisation with legal personality,41 the agency might be equally responsible for any misconduct of participating Member States during its joint maritime operations along with the host Member State.42 This is due to the fact that, under international law, the conduct of a State that is placed at the disposal of another international organisation, it shall be considered as an act of the latter organisation if the organisation exercises effective control over that conduct.43 In case of Frontex, which is a European specialised agency facilitating the operational coordination of participating Member States, the conduct of members of the border and coast guard teams in the performance of their functions during joint operations, under international law, it might as well be considered as an act of the agency itself.44 In this regard, it must be noted that in accordance with the principle of ‘shared responsibility’ enshrined in Frontex Regulation,45 in the implementation of the European integrated border management, the agency is responsible together with the national authorities in charge of border control. While Member States retain primary responsibility for the management of their sections of the external sea borders, in close cooperation with Frontex, they shall also ensure that their actions are taken in full compliance with Union law. As a result, as it is possible to infer from the provisions on ‘shared responsibility’, Frontex shall support the application of Union measures relating to the management of the external borders by reinforcing, assessing and coordinating the actions of Member States in the implementation of those measures. Therefore, during its joint maritime activities, while the host Member State can be held accountable for the damages caused by home Member States involved in Frontex operations, it is also the agency’s responsibility to constantly monitor and supervise the operational practices adopted by all participating States. To this end, together with the host Member State, the agency should ensure that the interception measures taken by border and coast guard authorities on the high seas comply with the international law of the sea legal framework, in their own interests, in the interest of the host Member State and in those of the European Union as well.

41

See Art. 56 (Legal status and location) of the Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard. 42 Salvadego (2017), pp. 1122–1150. 43 See Art. 7 (Conduct of organs of a State or organs or agents of an international organisation placed at the disposal of another international organisation), Draft articles on the responsibility of international organisations, Yearbook of the International Law Commission, 2011, vol. II, Part two. The text was adopted by the International Law Commission at its sixty-third session, in 2011 and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/66/10). 44 Kuijper and Paasivirta (2013), pp. 63–69; Naert (2013), pp. 313–338. 45 See supra note 18.

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7 Concluding Remarks Frontex joint operations at sea have promoted a securitisation approach of the EU external sea borders in the Mediterranean through border surveillance activities that extend well beyond territorial sea and contiguous zone of participating States.46 In this scenario, concepts like early-interception techniques and pre-frontier monitoring, which allowed Frontex to step up its reaction capabilities with respect to crossborder threats by sea, have certainly contributed to the phenomenon of “moving borders” at sea.47 Recently, these sea borders were displaced farther away from territorial seas of participating coastal States, insofar as to lead to the externalisation of border management towards unsafe third countries with which the EU has signed bilateral agreements and negotiated capacity-building programmes (e.g. Turkey and Libya).48 However, as some scholars pointed out, this ‘de-territorialisation of border control’ could have an impact on the applicable legal framework, with a particular reference to the safeguards the individuals submitted to the border control activities are entitled to, such as the right to asylum and the principle of non-refoulement.49 Against this operational background, frontline Member States like Italy have encouraged the interpretation of existing international law provisions through “creeping jurisdiction” at sea. Under the technical coordination of Frontex, the development of these maritime interception practices and legal advancements have undoubtedly brought to an increase in the number of smugglers arrested in spaces which would otherwise be subtracted from coastal States’ jurisdiction. Nevertheless, these irregular migration cases always found their legal basis in the UNCLOS, either through the application of the ‘right of hot pursuit’ from territorial sea and contiguous zone or based on the ‘right of visit’ with respect to those vessels without nationality engaged in migrant smuggling on the high seas. However, border police authorities have recently started to engage directly on the high seas foreign ships suspected of having disembarked migrants onshore. This trend could pose a serious challenge to the principle of the freedom of navigation on the high seas. In fact, where no prior authorisation from the flag State is requested to board, search and seize a foreign vessel presumably involved in migrant smuggling on the high seas, this approach could certainly pave the way to adopting a similar modus operandi for the prosecution of other cross-border crimes at sea. Along this line of reasoning, a recent judgement of the Italian Court of Cassation confirmed that Italy does not have any jurisdiction over those foreign ships suspected of having disembarked migrants onshore and intercepted directly on the high seas, unless it seeks for the assistance of the flag State in order to take any appropriate measure with respect to those vessels.50 Furthermore, during joint operations hosted 46

Moreno Lax (2018), pp. 119–140. Fantinato (2017), pp. 209–214. 48 Liguori (2017), pp. 209–226. 49 Trevisanut (2013), pp. 661–675. 50 See supra note 34. 47

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on the Italian territory, both Frontex and Italy are equally responsible for ensuring that the actions of participating Member States are taken in full compliance with Union law. In turn, Frontex regulation does not affect the obligations of Member States under international conventions such as the UNCLOS.51 In conclusion, on the one hand, it must be noted that the European agency Frontex has certainly supported an extensive interpretation of the UNCLOS provisions in the management of the EU external sea borders. Italian authorities promoted this legal and operational approach during joint maritime operations both in Sicily and Apulia. This new methodology could be hailed as a positive development regarding the prosecution of those smugglers who endanger the lives of migrants on the high seas to trigger events of distress that eventually lead to the transportation of migrants into the Italian territory under the shield of rescue operations.52 On the other hand, however, in the context of Frontex operation ‘Themis’, Italy and Frontex should pay close attention to the increase of controversial interception measures performed by border and coast guard authorities on the high seas. In particular, they should focus on those conducts that could undermine the core principles of the UNCLOS such as the freedom of navigation and the exclusive flag State jurisdiction on the high seas.

References Andreone G (2011) Immigrazione clandestina, zona contigua e cassazione italiana: il mistero si infittisce. Diritti Umani e Diritto Internazionale 5(1):1–6 Bevilacqua G (2017) Criminalità e sicurezza in alto mare. Editoriale Scientifica, Naples Caligiuri A (2011) Le operazioni di contrasto dell’immigrazione clandestina alle frontiere marittime dell’Unione europea e la tutela dei richiedenti asilo. Available at https://u-pad.unimc.it/retrieve/ handle/11393/44747/1350/359-385%20-%20Contributo%20Caligiuri%20%282%29.pdf Cataldi G (2016) A Mediterranean perspective on migrants’ flows in the EU. Editoriale Scientifica, Napoli, pp 286–291 Fantinato M (2017) Law enforcement powers and moving borders at sea. In: Cataldi G et al (eds) Migration in the Mediterranean area and the challenges for “hosting” European society. Editoriale Scientifica, Naples, pp 209–214 Kuijper PJ, Paasivirta E (2013) EU international responsibility and its attribution: from the inside looking out. Hart Publishing, Oxford, pp 63–69 Leanza U, Graziani F (2014) Enforcement and jurisdiction in countering the smuggling of migrants: operational aspects. In: La Comunità Internazionale 2/2014:163–209. Available at https://www. sioi.org/wp-content/uploads/2015/10/LCI2014-trimestre2-2leanza-graziani.pdf Liguori A (2017) The 2017 Italy-Libya memorandum and its consequences. In: Cataldi G et al (eds) Migration in the Mediterranean area and the challenges for “hosting” European society. Editoriale Scientifica, Napoli, pp 209–226

51

See recital 45, ibidem. Sentences no. 14510/14 and 35474/2014 of the Italian Court of Cassation available at http://www. cortedicassazione.it. 52

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Moreno Lax V (2018) The EU humanitarian border and the securitization of human rights: the ‘rescue-through interdiction/rescue-without-protection’ paradigm. J Common Mark Stud 56 (1):119–140. https://doi.org/10.1111/jcms.12651 Mussi F (2016) Il dilemma dell’esistenza e dei poteri esercitabili nella zona contigua italiana. In: Antonucci et al (eds) L’immigrazione irregolare via mare nella giurisprudenza italiana e nell’esperienza europea. Giappichelli, Turin, pp 23–43 Naert F (2013) The international responsibility of the Union in the context of its CSDP operations. Hart Publishing, Oxford, pp 313–338 Papanicolopulu I (2016) Immigrazione irregolare via mare ed esercizio della giurisdizione: il contesto normativo internazionale e la recente prassi italiana. In: Antonucci et al (eds) L’immigrazione irregolare via mare nella giurisprudenza italiana e nell’esperienza europea. Giappichelli, Turin, pp 1–22 Salvadego L (2017) Il rispetto dei diritti umani fondamentali nel contrasto al traffico di migranti attraverso il Mediterraneo centrale. Il Diritto Marittimo, pp 1122–1150. Available at https://upad.unimc.it/handle/11393/243217#.W9bSMdVKguU Scovazzi T (1999) Le norme di diritto internazionale sull’immigrazione illegale via mare con particolare riferimento ai rapporti tra Albania e Italia. In: De Guttry A, Pagani F (eds) La crisi albanese del 1997. Edizioni Franco Angeli, Milan, pp 255–256 Trevisanut S (2013) The principle of non-refoulement and the de-territorialization of border control at sea. Leiden J Int Law 27(3):661–675. https://doi.org/10.1017/S0922156514000259 Marco Fantinato Major of the Italian Guardia di Finanza. Has always been working in the field of maritime patrolling of the EU external sea borders, and participating in joint operations both at national and international level. Certified Frontex instructor in Border and Coast Guard Training Delivery Methodology. Holds a PhD in Public, Comparative and International Law and contributed to publications in the area of international law, law of the sea and human rights.

Part II

Superpowers, International Courts and the Law of the Sea: Challenges for the Global Oceans Regime

Chapter 14

Stakeholders in Dispute Settlement Under the UN Convention on the Law of the Sea Natalie Klein

Abstract The role of various actors in dispute settlement processes under the UN Convention on the Law of the Sea (UNCLOS) may be assessed from different perspectives to assess the relevance or salience of those actors in decision-making processes. This chapter utilises a stakeholder identification theory, more commonly utilised in management contexts, to identify and prioritise the interests of different actors from the perspective of the judge in reaching decisions to advance the goals of UNCLOS dispute settlement. The theory is tested against the decisions made on the interpretation of Article 121(3) of UNCLOS in the South China Sea arbitration. The use of stakeholder identification theory enables us to examine the position of superpowers, as well as other states and non-state actors, in relation to a particular legal question and consider how well their interests and claims are met in judicial decision-making under UNCLOS. The author concludes that the theory is a useful explanatory tool and could bring greater transparency in decision-making but acknowledges limitations in its applicability to the UNCLOS context.

1 Introduction The study of international dispute settlement necessarily spans international law and international politics as we undertake an assessment of the legal rules in place and how they operate as well as the responses of different actors to those rules in resolving international disputes. International law provides the bases for claims as to what rights an actor holds in any international dispute and what duties are considered to be owing to that actor. International politics provides us with a further means to examine how and why the rights and duties are asserted and/or responded to the way they are. The actors involved in an international dispute will be varied, but The author thanks Matthew Kingsland for editorial assistance in the preparation of this chapter. Any remaining errors are of course her own. N. Klein (*) University of New South Wales, Faculty of Law, Sydney, NSW, Australia e-mail: [email protected] © Springer Nature Switzerland AG 2020 M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea, https://doi.org/10.1007/978-3-030-42671-2_14

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commonly the assertions concerning international law are made by states. Despite the recognised sovereign equality of states under international law, international politics allows consideration of diverse differences between states, including their political, economic, military power. This paradigm prompts the following questions: Is there a way to explain the positioning of superpowers in any particular dispute settlement mechanism? How different is their position to other actors in the dispute? Explaining the legal and political factors becomes more challenging the more legalised the dispute settlement process becomes. In this process, the legal aspects of a dispute may overshadow the political dimensions. One highly legalised dispute settlement mechanism is the compulsory procedures under UNCLOS.1 The purpose of this chapter is to consider how we might understand the role of superpowers and other actors in the operation of compulsory arbitration or adjudication under UNCLOS. The compulsory dispute settlement procedures under UNCLOS entail both flexibility and complexity. Both elements were necessary to devise an acceptable dispute settlement regime to address disputes arising from what is often described as ‘the constitution of the oceans’. In Section 1 of Part XV of UNCLOS, there is acknowledgement that disputes may be resolved through a variety of peaceful means,2 and in some limited instances, the dispute settlement procedures available under other agreements will prevail over those set out in UNCLOS.3 If a state party to UNCLOS wishes to refer a dispute to compulsory procedures entailing binding procedures under Section 2 of Part XV, it may choose between the dispute being heard at the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS), ad hoc arbitration under Annex VII of UNCLOS, or special arbitration under Annex VIII of UNCLOS.4 If a state has not selected a preferred means of dispute settlement as between these options, or states differ in their preferred forum, ad hoc arbitration under Annex VII is the default procedure available unless the parties agree otherwise.5 The dispute must be one that concerns the interpretation or application of UNCLOS,6 but a court or tribunal may refer to other rules of international law as part of the applicable law in any such dispute.7 Section 3 of Part XV excludes a limited number of disputes from the subject matter jurisdiction of a court or tribunal constituted under UNCLOS.8

1

These procedures are contained in Part XV of UNCLOS. Art. 279 and Art. 280, UNCLOS. 3 As set forth in Arts 281 and 282 of UNCLOS. 4 Art. 287(1), UNCLOS. 5 Art. 287(5), UNCLOS. 6 Art. 286, UNCLOS. 7 Art. 293(1), UNCLOS. 8 Arts 297 and 298, UNCLOS. These exceptions include certain fisheries and marine scientific research disputes in the EEZ; maritime boundary delimitation; military activities and historic bay disputes. 2

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Resorting to international arbitration or adjudication under UNCLOS thus engages the states parties to UNCLOS in a decidedly legalised mode of dispute settlement. Arbitration and adjudication sit at one end of the dispute resolution spectrum, which traverses from highly political modes of dispute settlement, such as negotiation, to the legal processes entailed in a third party crafting a binding decision based on legal arguments presented.9 Once a third party is involved in resolving an inter-state dispute by adjudication or arbitration, the potential participation and role of different actors also crystallises as the precise parameters of the dispute are delineated for resolution. To account for the legal and political dynamics at play in a formal legal process such as adjudication or arbitration, we can consider what role each actor plays, and how their interests are identified and weighted in resolving the dispute. In this respect, we can explain how the legal principle of sovereign equality operates in a setting where the states concerned hold different levels of power. In doing so, we can highlight to what extent superpowers influence decision-making as stakeholders in the compulsory resolution of disputes under UNCLOS, as well as account for the roles of other important actors in this process. To reflect on and potentially explain the role of superpowers as stakeholders in cases resolved under UNCLOS, this chapter proceeds as follows. Section 2 will identify the different actors that are typically engaged in any arbitration or adjudication under UNCLOS. Section 3 will introduce stakeholder identification theory and explain its possible application in assessing cases resolved under the UNCLOS dispute settlement regime. Section 4 will scrutinise how this theory might explain aspects of decisions from the South China Sea arbitration. Finally, Section 5 will draw some lessons from the use of stakeholder identification theory—its limits and its potential—in explaining decision-making processes under UNCLOS dispute settlement, and the role of superpowers therein.

2 Dynamics of Different Actors We should acknowledge the broad range of actors that may have an interest in the resolution of a dispute under the UNCLOS dispute settlement procedure.

This spectrum is exemplified in Article 33 of the UN Charter, which provides: ‘The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.’ 9

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State Actors

In any dispute arising under UNCLOS, there will necessarily be at least one state making a claim against at least one other state due to differing interpretations or applications of the legal principles enshrined in UNCLOS. The states in dispute are thus central in any adjudication or arbitration under UNCLOS. The court or tribunal will engage in an assessment of the factual and legal claims of each state to resolve the dispute, even in the absence of one of the states in dispute before it. In the latter situation, the court or tribunal must still satisfy itself ‘not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law’.10 Under Article 296(2) of UNCLOS, the decision of the court or tribunal ‘shall have no binding force except between the parties and in respect of that particular dispute’. Yet a statement of law from a court or tribunal constituted under Part XV of UNCLOS will be of interest to other states party to UNCLOS even if that state party is not formally bound by the decision. This situation emerges because once a court or tribunal constituted under UNCLOS has set forth what a provision of UNCLOS means, if a state party subsequently acts contrarily to that meaning, that state is arguably in violation of international law.11 The factual setting may enable a state to argue a point of distinction from a previous case, so there is a possibility of the court or tribunal departing from or qualifying an earlier holding.12 Yet this outcome is less likely where there is a jurisprudence constante.13 In addition to those states that are already parties to UNCLOS, as almost 170 states are, there are also states that are not yet party to UNCLOS but would be interested in understanding how the treaty is likely to operate in any given setting. This non-state-party would assess any decision explaining the meaning of treaty terms and consider that holding in relation to its own maritime interests. The United States is an obvious actor in this regard, but other states with notable maritime interests in this category include Venezuela, North Korea, Turkey, Israel, Iran, and Peru.14 We can note that any of these three categories of states (states in dispute, state parties to UNCLOS and non-state-parties to UNCLOS) encapsulate states with different power positions. Powerful states, such as Russia and China, have been engaged in arbitrations under UNCLOS.15 Important regional actors, including Brazil, Indonesia, Kenya, Saudi Arabia and Germany, are parties to UNCLOS

10

Annex VII, Art. 9, UNCLOS. See, e.g., Triggs (2006), p. 672 (referring to states following statements of law issued in the context of a non-binding advisory opinion). 12 Crawford (2012), p. 39. 13 Ibid. 14 See UNCLOS Status. Iran and North Korea are at least signatories to UNCLOS, but have not ratified. 15 See South China Sea Arbitration (Jurisdiction and Admissibility); South China Sea Arbitration (Award); Arctic Sunrise Arbitration (Award); Black Sea Arbitration. 11

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although they have not yet been directly involved in any case under Part XV. The United States remains the most powerful state outside the UNCLOS regime.

2.2

International Organisations

While not usually directly involved as a party in an arbitration or adjudication under Part XV of UNCLOS, intergovernmental organisations, both global and regional, may have an interest in this decision-making process. An organisation like the International Maritime Organization may find that the treaties adopted under its auspices are interpreted and applied in cases addressing, for example, marine pollution. Notably, the COLREGs were interpreted and applied in the South China Sea arbitration.16

2.3

Non-State Actors

A number of non-state actors will have an interest in cases being resolved under Part XV of UNCLOS. Conservation groups will have an interest in how certain rules under UNCLOS are upheld, as evident in the interest of Greenpeace in the Arctic Sunrise arbitration.17 Multinational corporations, especially those involved in the exploration and exploitation of the continental shelf, will have an interest in the resolution of boundary disputes under UNCLOS. An example may be seen with Woodside Petroleum and the Greater Sunrise Joint Venture in learning how the boundary would be delineated between Australia and Timor-Leste near the Greater Sunrise gas field in the Timor Sea following their compulsory conciliation.18 These companies would have also followed the Guyana v Suriname decision that addressed the lawful amount of force that could be used in the face of alleged illegal exploration activities by a company during a maritime boundary dispute.19 Shipping companies will also be engaged in interpretations of UNCLOS that address law enforcement against vessels involved in bunkering in a state’s EEZ, as at issue in the Virginia G,20 and Norstar cases.21 Fishing companies are similarly concerned about the rules and parameters of UNCLOS affecting their operations, notably the standards for prompt release and the factors to be used in determining a reasonable financial bond in the event of a fishing vessel being arrested in the EEZ of 16

South China Sea Arbitration (Award), paras 1081–1109. See generally Mossop (2016). 18 See Permanent Court of Arbitration (2017). 19 Guyana v Suriname Arbitration (Award), paras 425–452. 20 The M/V ‘Virginia G’ Case. 21 The M/V ‘Norstar’ Case (Preliminary Objections). 17

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a coastal state. The latter issues have been addressed in a number of cases instituted under Article 292 of UNCLOS.22 Other non-state actors that have stakes in the Part XV arbitration or adjudication are those directly involved in the case: the lawyers arguing the case, the registrar overseeing its administration, the experts and witnesses that may be used to present evidence or opinions. The lawyers arguing the case will likely include lawyers that work for the government of the state in dispute, but also extend to private lawyers who may be involved in many cases instituted under UNCLOS. In prompt release proceedings, the ship owners’ lawyer may act in the name of the state party to UNCLOS.23 The registry services for Annex VII arbitrations have predominantly been performed by the Permanent Court of Arbitration.24 Expert opinions may be sought by the court or tribunal itself or by the states in dispute, and may be of particular use when one of the states in dispute does not appear before the UNCLOS court or tribunal. Witnesses have performed a critical role in assessing the application of UNCLOS provisions, especially in law enforcement settings.25 Each of these actors will have varying degrees of influence in framing the key issues for resolution and how those issues are ultimately resolved.

2.4

Judges

Yet critical among all these actors are the judges; the individual judges comprise the ‘court’ or ‘tribunal’ making the decisions in an UNCLOS arbitration or adjudication. These actors may be assessed as individual actors, each bringing their own experience and knowledge, as well as their own conscious or unconscious predilections to the dispute resolution process.26 Often there is an assessment of the ‘court’ or ‘tribunal’ as the critical decision-making actor with its own position within the international legal and political system. This legal institution carries with it certain responsibilities and characteristics in the role it performs in resolving disputes under UNCLOS.27 These are assessed further in discussing the stakeholder identification theory in the following Part.

22

See, e.g., Camouco Case; Volga Case (Judgment). For general discussion, see Trevisanut (2017). Art. 292(2) permits the application for prompt release to be made ‘by or on behalf of the flag State of the vessel.’ 24 All but one Annex VII arbitration has been administered through the Permanent Court of Arbitration; the one exception being Southern Bluefin Tuna Cases, which used the International Centre for the Settlement of Investment Disputes (ICSID) as its registrar. 25 See, e.g., M/V ‘Virginia G’ Case, paras 35–38 (listing 11 witnesses that appeared before ITLOS and the questions posed to them). 26 These issues have been canvassed in literature dealing with gender balance in international courts. See, e.g., Grossman (2012). 27 See, e.g., Alter (2012). 23

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245

UNCLOS as an Actor

Another ‘institution’ or ‘regime’ that may be recognised in UNCLOS dispute settlement is UNCLOS itself. In this context, we can draw on regime theory, which Stephen D. Krasner defined in 1982 as a set of explicit or implicit ‘principles, norms, rules, and decision making procedures around which actor expectations converge in a given issue-area’.28 While international governance theories have moved beyond regime theory, what is important to recognise is how the ‘regime’ is endowed with its own qualities or characteristics. It is thus worth noting ‘UNCLOS’ as an actor in dispute settlement because other actors involved in the dispute settlement process do so themselves. This phenomenon is readily seen when there are decisions to be made on the parameters of jurisdiction; the parties will reference the purposes of UNCLOS as an international regime. For example, in the South China Sea arbitration, China claimed that: the Philippines and the Arbitral Tribunal have abused relevant procedures and obstinately forced [sic] ahead with the arbitration, and as a result, have severely violated the legitimate rights that China enjoys as a State Party to the UNCLOS, completely deviated from the purposes and objectives of the UNCLOS, and eroded the integrity and authority of the UNCLOS.29

In cataloguing this diverse universe of actors and how they might be engaged in any case that arises for resolution under Part XV of UNCLOS, we can see that any number of them may either directly engage or wish to engage in the process so as to influence the outcome. The next Part contemplates how we can categorise and rank these actors, either as a way to explain what is currently happening in UNCLOS dispute settlement or as a means to develop a normative tool to explain how disputes should be resolved under UNCLOS.

3 Stakeholder Identification Theory One possible explanatory paradigm is stakeholder identification theory, which has been used in the management context for managers to determine who are the salient stakeholders in making decisions in the interests of the organisation.30 Stakeholder theory seeks to answer the question of who and what counts for managers in their

28

Krasner (1982), p. 2. South China Sea Arbitration (Award), para. 61 (citing a statement from the Chinese Ministry of Foreign Affairs) (emphasis added). 30 Thanks to Gerry Natzgaam, Monash University, for bringing this theory to my attention in the context of whaling. 29

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decisions.31 In utilising this theory,32 we equate managers with judges, as they are the ultimate decision-makers for disputes resolved by arbitration or adjudication under UNCLOS. The decisions they make are for ‘the organisation’, which we can understand to be the UNCLOS regime. Judges as the managers must make decisions that are in the best interests of the organisation, that is, the UNCLOS regime. The stakeholders are then the various other actors identified in the previous Part with interests in dispute settlement. In creating this analogy, we have the opportunity to articulate what factors, including different actors, could or should influence judges. How should judges prioritise these different interests? We can therefore assess the possible applicability of stakeholder theory in the context of UNCLOS dispute settlement. A stakeholder may be broadly defined as ‘any group or individual who can affect or is affected by the achievement of the organization’s objectives’.33 To achieve the organisation’s objectives, managers (or in our case judges) must pay varying attention to different types of stakeholders.34 Mitchell, Agle and Wood propose that we look to the power, legitimacy and urgency associated with stakeholders.35 The power held may be coercive (‘based on physical resources of force, violence, or restraint’); utilitarian (‘based on material or financial resources’) or normative (‘based on symbolic resources’).36 Whatever the source of power, the upshot is that it enables the stakeholder to impose its will.37 Legitimacy may have different meanings depending on its context, and was given a broad-based definition by Suchman, as follows: ‘a generalized perception or assumption that the actions of an entity are desirable, proper, or appropriate within some socially constructed system of norms, values, beliefs and definitions’.38 Legitimacy has a strong place in international law,39 and is important in consent-based treaty regimes where state actors can make rational decisions on their level of involvement in the regime. In applying stakeholder identification theory to UNCLOS dispute settlement, a question does emerge as to how we might differentiate normative power from legitimacy? Symbolic power could be ascribed to an actor adhering to the rules of international law and taking steps to uphold or enforce those rules. The key 31

A seminal work in this area is Freeman (1984). Stakeholder identification theory and how to determine the salience of stakeholders was expounded in an influential piece in 1997 by Mitchell, Agle and Wood. The 1997 piece remains the key starting point. Mitchell et al. (2017), p. 127. 32 Building on work in a new monograph: Klein and Parlett (2021). 33 Freeman (1984), p. 46. 34 Mitchell et al. (1997), p. 855 This assessment involves determining stakeholder salience, which is ‘the degree to which managers give priority to competing stakeholder claims’. Mitchell et al. (1997), p. 854. 35 See Mitchell et al. (1997), pp. 859–863 and 865–868. 36 Mitchell et al. (1997), p. 865, citing Etzioni (1964), p. 59. 37 Mitchell et al. (1997), p. 865. 38 Suchman (1995), p. 574, cited by Mitchell et al. (1997), p. 866. 39 Epitomized by Thomas Franck’s writing in the area. See, e.g., Franck (1995).

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difference would seem to be the ability to impose one’s will based on the assertion of legal rules. Some actors are more able to enforce international law than others. Yet the very availability of the UNCLOS dispute settlement regime for all parties to that treaty does open up the possibility to states parties having normative power if they choose to avail themselves of compulsory dispute settlement procedures entailing binding decisions and there are no barriers to doing so. Urgency assesses the time sensitivity of claims or relationships as well as the importance of the claim or the relationship to the stakeholder.40 It is the urgency of the claim of the stakeholder rather than the urgency of the stakeholder itself that matters.41 While these three categories provide a way to classify the interests of stakeholders, it must also be acknowledged that the attributes of stakeholders may vary over time, might entail subjective determinations and may or may not be asserted in any given context.42 Yet even with this possible nuance, the categories allow us to identify the stakeholders and their interests in a decision-making process. These are the factors that must be weighed by the manager in making strategic decisions for the organisation; they determine which stakeholders are salient.43 In assessing stakeholders, a process may be undertaken in determining which stakeholders possess power, legitimacy and urgency, or perhaps just two of those attributes or only one. A sliding scale applies. As such, a stakeholder exhibiting all three of power, legitimacy and urgency means that a manager (judge) has ‘a clear and immediate mandate to attend to and give priority to that stakeholder’s claim’.44 Stakeholder identification theory provides a tool for articulating what could or should be influencing decision-making and why decision-makers should take heed. There is no consistent set of variables, but we instead have an opportunity to look broadly at the variety of actors in the international system and different forms of communications between those actors and have a means to weigh those interactions and assess their salience in the judicial decision-making process. There is therefore an opportunity to account for the complexity of UNCLOS dispute settlement and to engage more transparently in what has influenced diverse outcomes. Inherent difficulties remain of course, as it will not always be evident on the face of any judgement

40

Mitchell et al. (1997), p. 867. An additional dimension proposed to the urgency of a claim is the probability of the claim’s occurrence. See Driscoll and Starik (2004), discussed in Mitchell et al. (2017), p. 139. Although arguably this dimension could be captured in an assessment of the importance of the claim or relationship. 41 See Mitchell et al. (2017), p. 140, discussing the work of Eesley and Lennox (2006). Stakeholder urgency would instead be part of the power attribute. 42 Mitchell et al. (1997), p. 868. 43 Mitchell et al. (1997), pp. 870–871. 44 Mitchell et al. (1997), p. 878. As there are three types of power, arguably the more of these types of power attributes exhibited then this would also positively influence the salience of the stakeholder. See Parent and Deephouse (2007).

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how or why a judge has either emphasised, downplayed or overlooked any dimension of a case.45 What also potentially remains elusive is whether the judges all share the same objectives for the organisation. The identification of stakeholders’ attributes only makes sense when we have a clear sense of what ends a judge is trying to achieve in making decisions on claims presented. Judges deciding cases under UNCLOS appear to be motivated by the broad aims associated with the peaceful settlement of disputes, the rule of law, and the public order (or good governance) of the oceans.46 Ultimately, there needs to be a connection between who and what counts in decision-making with the outcome sought to be achieved. Stakeholder identification theory thus potentially provides us with a tool to explain what is happening in UNCLOS arbitrations and adjudication and the extent that the interests of superpowers are accommodated in this setting. In relation to any decision emanating from adjudication or arbitration, we can identify the actors, their interests and the extent those interests were satisfied in the decisions of the judges. Using this technique, we can show to what extent superpowers have prevailed, if at all, in the compulsory arbitration and adjudication procedures under UNCLOS.

4 Applied to the South China Sea Arbitration Considering the many important dimensions to the final award of the South China Sea arbitration, this chapter will only examine one aspect of the case to test the use of stakeholder identification theory. One controversial issue was the status of various land features in the South China Sea as either ‘fully-entitled’ islands or rocks under Article 121 of UNCLOS.47 Article 121 provides: 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. 2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory. 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

45 Context will remain important, including the characteristics of the judges making the decisions. See Mitchell et al. (2017), p. 141. 46 See, e.g., Duzgit Integrity Arbitration, para. 132. 47 A fully entitled island may be used by the sovereign state to claim a territorial sea, contiguous zone, EEZ and continental shelf. See UNCLOS, Art. 121(1). The South China Sea Arbitration Tribunal utilised the terminology of a ‘fully entitled’ island to distinguish features under Article 121 (1) from those classified as a rock under Article 121(3). A rock, while still an island, is not entitled to either an EEZ or a continental shelf.

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Critical for assessing the entitlement of a land feature to maritime zones is thus whether an island ‘cannot sustain human habitation or economic life of their own’, because if not, the islands are deemed ‘rocks’ that do not have an EEZ or continental shelf.48

4.1

Decision on Islands in the South China Sea Arbitration

The South China Sea Tribunal undertook a review of the text of Article 121(3), as well as considering the context, object, and purpose of UNCLOS and the negotiating history (the travaux préparatoires) to ascertain the meaning of Article 121(3). Notable in the reasoning was the Tribunal’s dismissal of the relevance of state practice,49 as well as its reliance on a policy position of not allocating extensive maritime zones to the exclusive control of one coastal state based on the presence of a very small island.50 The detailed study of the text of Article 121(3)51 brought to light some critical characteristics. Notably, the Tribunal considered that a range of basic requirements would have to be met to establish ‘human habitation’; these requirements being those ‘necessary to provide for the daily subsistence and survival of a number of people for an indefinite time’.52 The Tribunal further noted that ‘[a] feature that is only capable of sustaining habitation through the continued delivery of supplies from outside does not meet the requirements of Article 121(3).’53 In relation to an ‘economic life of their own’, the Tribunal considered inter alia that human engagement would be needed so that the economic life was not simply derived from extractive activities, particularly where those activities would have no benefit for any local population on the feature itself.54 Moreover, the extractive activity had to occur on the land, or be connected with the land, of the feature itself and not merely occur in the waters around the feature.55 In this regard, the Tribunal appeared to be motivated by the view that the EEZ and the continental shelf had to be for the benefit of an actual population rather than for the pure economic benefit of a sovereign state that otherwise has no connection with the land in question in the absence of that human habitation.

48

UNCLOS, Art. 121(3). South China Sea Arbitration (Award), paras. 552–553. See further Klein (2016), pp. 28–30; Elferink (2016). 50 See South China Sea Arbitration (Award), paras. 512–520. 51 See South China Sea Arbitration (Award), paras. 482–553. 52 South China Sea Arbitration (Award). 53 South China Sea Arbitration (Award), para. 547. 54 South China Sea Arbitration (Award), paras. 499–500. 55 South China Sea Arbitration (Award), para. 503. As such, economic life derived from the EEZ or the continental shelf of the feature could not be considered as meeting this criterion. Id., para. 502. 49

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The South China Sea Tribunal ultimately determined that Subi Reef, Gaven Reef (South), Hughes Reef, Mischief Reef and Second Thomas Shoal were low-tide elevations. Other features contested by the Philippines, Scarborough Shoal, Gaven Reef (North), McKennan Reef, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef, were ruled to be, in their natural condition, ‘rocks’ within the meaning of Article 121 (3). To ensure that there was no possibility of an overlapping Chinese maritime claim that would put the Philippines’ claims outside jurisdiction, the Tribunal further considered the status of other high-tide features in the Spratly Island group. It concluded that none of Itu Aba, Thitu, West York, Spratly Island, South-West Cay, and North-East Cay were capable of sustaining human habitation within the meaning of Article 121(3).56 Hence, they were also rocks only entitled to a territorial sea and contiguous zone.

4.2

Stakeholders in the Decision: China and the Philippines

In reaching this decision, the two immediate stakeholders were the Philippines and China as the parties to the case. In classifying its interests, China clearly had power, both coercive as a strong military actor with a history of demonstrating that military strength,57 and utilitarian because it had the financial and material resources to develop the features and potentially underline their characterisation as fully-entitled islands rather than rocks. China also could be viewed as having normative power for two reasons. First, its engagement with international law in justifying its claims through its assertion of sovereignty over the disputed land features and its consistent view as to its authority over the features at issue and the adjacent waters as a matter of international law. Second, China’s assertion of extended maritime zones over these small land features is arguably consistent with the practice of other coastal states that have sovereignty over small island features and relied upon these claims as consistent with their interpretation of UNCLOS in asserting maritime rights and delimiting maritime boundaries. The Philippines’ power was normative only, as the actor seeking to uphold the rules-based order established under UNCLOS through the UNCLOS dispute settlement processes. This symbolic power arguably emerges in the dynamic of an actor asserting legal rights in defiance of another actor that has coercive and utilitarian power.58 Both the Philippines and China could also make claims as to the urgency of their interests in this aspect of the dispute. China’s urgency was reflected in its accelerated

56

South China Sea Arbitration (Award), para. 621. See, e.g., The Guardian (2015). 58 See discussion of the Philippines’ strategy in Talmon (2014), p. 72 (‘More important than winning the case seems the opportunity for the Philippine Government to publicise its case against China to the world.’). 57

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land reclamation activities following the institution of proceedings by the Philippines.59 The urgency for the Philippines was also China’s accelerated activities, which could be perceived as an intrusion on the Philippines’ claimed sovereignty over the features and to the maritime zones in question. Further, there was urgency because of the ongoing denial of fishing rights for its nationals in some of the contested waters. Finally, the Philippines had particular urgency in the resolution of this issue in its favour as holdings to the contrary would have prevented the exercise of jurisdiction over other of its claims in the arbitration due to the unresolved maritime boundary delimitation. Determining the legitimacy of the claims asserted by the states in the dispute may become quite circular. There was legitimacy to the claim of the Philippines because its legal argument that the features in question were not fully-entitled islands was upheld by the Tribunal. China’s claim was not upheld and so therefore was not legitimate. In this situation, making a claim that aligns with that of the decisionmaker as to the correct interpretation of the law creates the legitimacy rather than the legitimacy of the interpretation being the interest to be considered.

4.3

Stakeholders in the Decision: Other State Parties

This issue around legitimacy may be seen more clearly when we consider the position of other states parties to UNCLOS that would also have an interest in the interpretation of a provision of UNCLOS that has long been subject to varied perspectives. Three states that would be relevant in this regard are Australia, France and Japan. Each of these states has small islands that they view as fully-entitled islands but their claims to EEZs and continental shelves have been challenged in different settings. For Australia, the Heard and McDonald Islands and for France, Kerguelen Island, were all questioned as to whether the criteria of Article 121 (3) were met by Judge Vukas in his separate opinion in judgments for ITLOS.60 The observation by Judge Vukas, which was questioned by other judges in the case for different reasons,61 was not relevant to the determination of the cases before ITLOS at the time yet still served to shine a spotlight on the issue. Japan’s claim for an EEZ and continental shelf entitlement for Okinotoroshima has been protested by China and South Korea in relation to Japan’s submissions to the Commission on the Limits of the Continental Shelf.62

59

An argument that the Philippines made in the context of China’s aggravation of the dispute as a discrete violation of international law. See South China Sea Arbitration (Award), paras. 1163–1180. 60 Volga Case (Declaration of Vice-President Vukas), paras 2–6; Monte Confurco Case (Declaration of Judge Vukas), p. 122. 61 See, e.g., Monte Confurco Case (Dissenting Opinion of Judge Anderson), p. 128. 62 For discussion, see Qui and Liu (2009).

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Do their claims to extended maritime zones for these islands reflect a legitimate interest to be taken into account by a decision-maker? Australia, for example, may well argue that its position is legitimate because the marine environment around the Heard and McDonald Islands is much better served by the 2002 establishment of the HIMI Marine Reserve,63 and its assertion of exclusive jurisdiction has facilitated better conservation and management of the living resources in the area. As with the Philippines and China, a decision that favours its claims becomes its own selffulfilling legitimacy of the interest. Yet Australia may also assert its legitimacy, as would France, on the basis that the claims to the extended maritime zones have been in place without protest for an extended length of time, reflecting other states’ acquiescence in the legitimacy of those claims. Japan, by contrast, has faced greater resistance to its claims to fullyentitled island status for Okinotorishima and in this situation, the legitimacy of its position is undermined. In this factual setting, it is easier to identify the legitimacy of a particular claim. For completeness, we can consider the power and urgency interests of Australia, France and Japan. At the time of the judgment, all three would have held normative power comparable to the Philippines to the extent they all support a rules-based order and wish to engage in the UNCLOS regime and assert and protect the interests enshrined in that treaty. All three states have been involved in UNCLOS dispute settlement processes (although Japan and France only as respondents),64 so have some credibility as players in the compulsory UNCLOS procedures. The urgency for these three states would not have been as high as would have been the situation with the Philippines and China. Nonetheless, all three states have interests in the regulation of maritime activities in the South China Sea as it relates to their navigation and defence concerns within and across this semi-enclosed sea. Greater certainty as to the maritime entitlements of each neighbouring state would enhance national decision-making on navigation and defence issues in both shortand long-term. Other stakeholders that are also parties to UNCLOS are the other states that border the South China Sea. Beyond China and the Philippines, Viet Nam, Malaysia, and Brunei hold competing claims over different island groups, such as the Paracels and the Spratly islands, as well as over other islands and land features located throughout this semi-enclosed sea.65 On the issue of the status of the features as fully-entitled islands, rocks or low-tide elevations, there were likely two primary considerations for these states. First would be the impact of any determination in the arbitration on their claims to maritime zones in the area based on the maritime

63 See Australian Government Department of the Environment and Energy, Australian Antarctic Division (undated). 64 See, e.g., Monte Confurco Case, p. 86; Camouco Case, p. 10; Volga Case (Judgment); Southern Bluefin Tuna Cases; Southern Bluefin Tuna Cases (Jurisdiction and Admissibility). 65 For a map of the claims, see Damrosch and Oxman (2013), p. 96. Taiwan is also a claimant, but it is not universally recognised as a state and is not a party to UNCLOS.

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entitlements of the features at issue in the case. In this regard, a question for the states bordering the South China Sea would be where their maritime boundary would fall if the small features in the case were fully-entitled islands and hence produced overlapping EEZs and continental shelves requiring delimitation between them. As McDorman noted, a finding that none of the features at issue were fully-entitled islands meant that any maritime boundaries within the South China Sea would only be based on maritime zones emanating from the mainland coasts of the states in question.66 Moreover, it is worth noting that if the Tribunal had concluded in the arbitration that there were fully-entitled islands at issue, the jurisdiction of the Tribunal would have likely been reduced. This lack of jurisdiction would have arisen because a question of maritime boundary delimitation would emerge and could not be resolved due to China’s exclusion of maritime boundary disputes from compulsory procedures entailing binding decisions under Article 298(1)(a)(i) of UNCLOS. A second key consideration in the case for the other states bordering the South China Sea would be the status of their own claimed features, for example Viet Nam’s claims in the Paracel Island group, in light of the elucidation of the interpretation and application of Article 121 by the South China Sea Tribunal. Ultimately, to ensure that its subject matter jurisdiction was not limited because of China’s declaration under Article 298(1)(a)(i), the South China Sea Tribunal considered the status of all the features in the Spratly Island group even though not all of them were explicitly raised for consideration by the Philippines in its claims. Such a determination was especially relevant for Taiwan given its claim that Itu Aba/Taiping Island is a fullyentitled island, but the South China Sea Tribunal determined that it did not meet the criteria of Article 121(3). Moreover, Malaysia and Viet Nam also make claims to features in the Spratly Islands so potentially have rights implicated by the decision.67 Finally, to the extent that there are other comparable land features in the South China Sea, as may be the case for Viet Nam and China in relation to their contested rights over the Paracel Islands,68 the interpretation and application of Article 121(3) will affect other maritime claims in the South China Sea. To assess the interests of the states bordering the South China Sea in terms of stakeholder identification theory, it would be argued that these states hold only normative power, similarly to the Philippines, to the extent that they are seeking to uphold the rules-based order of UNCLOS. Each of the state parties could contemplate resort to UNCLOS dispute settlement with claims similar to the Philippines. Their legitimacy is derived from the chicken-and-egg scenario also like the Philippines whereby any claims they made supported by the Tribunal gave them legitimacy. Where legitimacy may additionally be asserted in relation to this group of states is in relation to the need to establish a cooperative regime and create a scenario

66

McDorman (2016). See Beckman (2013), p. 144. 68 See Beckman (2013), p. 144. 67

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that is conducive to facilitating coordination in this semi-enclosed sea.69 By denying extended maritime zones to the small islands, the maritime boundary disputes are arguably simplified and resolution of the competing claims may be more conducive. However, the counter-view is that the outright denial of China’s position and its concomitant rejection of the decision has diminished the likelihood of resolution of the competing maritime claims in a cooperative manner. Reaching a conclusion that lacked any compromise or face-saving for China may undercut the legitimacy of the claims of the other border states that seek cooperation. These states would all share urgency in wanting this issue resolved sooner rather than later in the face of China’s increasing presence throughout the semi-enclosed sea. Moreover, there would also be urgency in that each state has an interest in ensuring their own access to the resources of the area for their own economic development.

4.4

Stakeholders in the Decision: Non-State Parties

As a military and economic superpower, the United States, even as a non-party to UNCLOS, is still a stakeholder in a dispute concerning the South China Sea because of the interests it holds in supporting allies in the region, its own security interests, and in ensuring the freedom of navigation for both military and commercial ships. For a determination of the meaning of Article 121, the United States also had an interest in gaining an understanding of how the language of this provision would operate and thereby affect the United States’ islands. In particular, the United States claims extended maritime zones around the small and isolated Johnston Atoll, located between the Marshall Islands and Hawai’i.70 Further, the United States was highly engaged in the negotiations of UNCLOS, and continues to engage in debates within the United States polity on the possible ratification of the treaty.71 In terms of identifying the United States’ interests as a stakeholder in the resolution of this issue, it can be observed that its military and economic status indicates the coercive and utilitarian power it holds, similar to China. However, the United States lacks normative power or legitimacy to the extent that these factors are aligned with participation in UNCLOS as a party that has accepted both the rights and obligations enshrined throughout that treaty. Arguably, the United States has similar normative power to any other state asserting adherence to international law but its position in this regard is undermined by its failure to ratify UNCLOS. For the United States, there may be urgency in the resolution of the claims to the extent that

As required under Article 123 of UNCLOS, which reads in part: ‘States bordering an enclosed or semi-enclosed sea should cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention.’ 70 See Klein (2016), p. 28. 71 For recent discussion on the US position, see Smith (2017). 69

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the United States wishes to resolve the competing claims within the South China Sea and bring certainty to the exercise of legal rights within this maritime area. As any interpretation of Article 121 relates to its own maritime claims, there is no urgency because of the United States’ non-party status and because it would not be in its interest to have a decision that would cut against its own expansive maritime claims.

4.5

Stakeholders in the Decision: Non-State Actors

Fishing and shipping companies could also be identified as stakeholders in relation to this aspect of the dispute to the extent that the claimed maritime zones emanating from these land features implicate their rights to fish and/or move freely throughout the South China Sea. Their claims would be urgent to the extent that their economic rights were potentially being infringed with the uncertainty for their operations as to which state had rights in any specific area within this sea. Their rights are derived from the different states concerned, though, and could be viewed as marginal compared to the interests of states in this setting. Another actor in the South China Sea arbitration on this issue was that of the expert hydrographer appointed by the Tribunal.72 The Tribunal described the assistance provided by this hydrographer as assisting it: in “reviewing and analysing geographic and hydrographic information, photographs, satellite imagery and other technical data in order to enable the Arbitral Tribunal to assess the status (as a submerged feature, low-tide elevation, or island)” of the features named in the Philippines’ Submissions or any other such feature determined to be relevant during the course of the reference. While the appointment of hydrographic experts is common practice in Annex VII arbitrations, in light of China’s non-participation, Mr. Boyes was also tasked with assisting with a “critical assessment of relevant expert advice and opinions submitted by the Philippines.”73

The nature of the role of the expert would typically be one that does not allow the expert to impose their will (at least not overtly) on the decision-maker. As such, no power could be attributed to the interests of the actor. There would be legitimacy because of the type of role being performed. The urgency, if any, would be limited to contributing to the definition of the immediate relationships before the tribunal and any time sensitivity derived from the position of other stakeholders, notably the Philippines, rather than any urgency in the expert’s own right or interest in seeing their views upheld or vindicated in the Tribunal’s decision.

72 73

South China Sea Arbitration (Award), para. 58. South China Sea Arbitration (Award), para. 133 (citations omitted).

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Table 14.1 Summary of stakeholder interests Stakeholder The Philippines China Australia/France Japan States bordering the South China Sea: (Taiwan), Viet Nam, Malaysia, and Brunei United States Companies Expert

4.6

Power Coercive

Utilitarian

X

X

X

Normative X X X X X

Legitimacy X

Urgency X X

X X

X

X X X

Applying Stakeholder Identification Theory

In sum, while acknowledging the counter-arguments set forth above, Table 14.1 summarises the identification of interests across the different stakeholders in the interpretation and application of Article 121 in the South China Sea arbitration.74 Through this analysis, we can see that the South China Sea Tribunal prioritised the claims of the Philippines, which had power, legitimacy and urgency attributes identified, as did the other states bordering the South China Sea except for China (and by extension, Taiwan). Arguably, the urgency claims of the Philippines were as strong as or stronger than the power claims of China. In a judicial setting, it is imaginable that judges would weight coercive and utilitarian power less as compared to normative power or legitimacy, both of which would likely align better with the overall regime goals of the peaceful settlement of disputes, the rule of law and the good governance of the oceans. Yet these power factors cannot be dismissed in their entirety and must still form part of the decision-making process. The South China Sea Tribunal’s failure to engage with state practice in any detail may indicate that the power elements mentioned were not accounted for sufficiently, which has prompted some of the dissatisfaction surrounding this aspect of the decision.75

74

Ultimately, this assessment is an impressionistic analysis. Preferably, interviews would be conducted with each of the stakeholders (if possible) as a more rigorous method for testing the relative strength of each of the interests involved. 75 See, e.g., Oude Elferink (2016) and Talmon (2017).

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5 Lessons Learned The above examination has provided a possible explanation for the decision of the South China Sea Tribunal in ascertaining that there were no fully-entitled islands at issue in the case, as opposed to rocks and low-tide elevations. The advantage to using this approach is that it provides transparency in highlighting what actors’ interests were at play and what importance could or should have been attributed to each stakeholder and their interests in decisions that were to be for the good of the ‘organisation’. To this end, stakeholder identification theory enables us to see how superpowers can influence a decision, but also shows us the possible limits of superpower interest. In the case of the United States, its interests were not, and could not be, pressing in the minds of the decision-makers when it was not a party to the dispute and it is not even a party to UNCLOS.

5.1

Limitations of Stakeholder Identification Theory in This Context

Yet the analysis has also shown an important limitation in using stakeholder identification theory in the context of international adjudication or arbitration under UNCLOS. How do we identify legitimacy as an interest separate to the decision that is being made? To be legitimate, we are potentially already making a call on whether an actor’s assertion aligns with our understanding and interpretation of the law or not. This difficulty is compounded by the use of international law in different ways to justify state action rather than a state necessarily acknowledging a breach of international law. Widespread condemnation of a state’s actions might enable more easily decisions about legitimacy. Hence, it was argued above that additional factors could be relied upon to show legitimacy beyond the actual decision on the question of law at issue. As argued by international relations scholars, legitimacy extends beyond questions of what is lawful and what is not.76 Although a court or tribunal must be limited by their assessments of the legality of actions consistent with their jurisdictional mandate, there is scope to consider the object and purpose of rules, as well as the context for those rules.77 The broader setting for the rules at issue can then inform the assessment of the stakeholder’s interests.

76

See, e.g., discussions in Falk et al. (2012). This power is derived from the rules of treaty interpretation. Article 31(1) of the Vienna Convention on the Law of Treaties provides: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. VCLT, Art. 31(1). 77

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We can also learn from the stakeholder identification theory that it may need to be looked at through quite a wide and dense lens.78 In this chapter, I have focused on the possible application of stakeholder identification theory to one discrete issue in the South China Sea arbitration. Yet we know that in international dispute settlement that there are frequently linkages between different questions that make up any dispute. It has been noted that there was an important link between the decision on the status of the land features and the jurisdiction of the tribunal. So one decision connects to another, which connects to another. Hence the possible width of scrutiny that might be needed in trying to apply the stakeholder identification theory across an entire judgment. We also have to appreciate that there might be trade-offs by the decision-maker. So even if a stakeholder is denied an outcome in relation to one issue, perhaps the decision-maker compensates by rewarding the stakeholder for another issue. This dimension creates the density of analysis: the identification and weighting of interests in the context of one decision may involve some trade-offs at another level of decision-making. This sort of compromise can be seen, for example, in maritime boundary disputes where the court or tribunal attributes different weight to varied geographic and other factors along the course of a boundary.

5.2

Potential of Stakeholder Identification Theory?

Ultimately, although the task is complex and still entails subjective assessments, our understanding of judgments can be enhanced through stakeholder identification theory as a means to explain why decisions were reached the way they were. The fit may not always be perfect and, as acknowledged at the outset, we may be limited by what information is publicly available in any judgment or relevant documents or pleadings in a case.79 We are left, though, with the question as to whether stakeholder identification theory is just an explanatory tool,80 or whether we can go further and suggest that it is a normative tool in its own right that should be used by decision-makers in UNCLOS dispute settlement to inform their processes and better elucidate the reasoning by which decisions are reached. The latter seems unlikely to be adopted in any formulaic fashion as has been followed here, but it seems the very process of thinking broadly and deeply about the different actors and their interests should be a rally cry to ensure greater transparency in the reasoning of courts and tribunals. Moreover, the process allows for a broader appreciation of the 78 Such a lens may be captured by the idea of ‘interactive salience’, which acknowledges that ‘prioritization of stakeholders appears to be influenced by multiple activities within and outside of the organization’. Mitchell et al. (2017), p. 143. 79 As noted above, interviews with the stakeholders may fill important knowledge gaps in this regard. However, this method involves its own challenges (including access to all stakeholders and questions of privileged information in a lawyer-client relationship). 80 As is the case in the management context. See Mitchell et al. (2017), p. 148 (referring to the ‘explanatory potential’ of the stakeholder salience model).

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complexity of international law with its multitude of actors, as well as the increasingly sophisticated and varied modes of communication that are all put into play in the regulation of international conduct and in the settlement of international disputes.

References Alter KJ (2012) The multiple roles of international courts and tribunals: enforcement, dispute settlement, constitutional and administrative review. In: Jeffrey LD, Mark AP (eds) International law and international relations: synthesizing insights from interdisciplinary scholarship. Cambridge University Press, pp 345–370 Arctic Sunrise Arbitration (Netherlands v. Russia) (Award, 14 August 2015) PCA Case No. 201402 (Arctic Sunrise Arbitration (Award)) Beckman R (2013) The UN convention on the law of the sea and the maritime disputes in the South China sea. Am J Int Law 107(1):142–163 Crawford J (2012) Brownlie’s principles of public international law, 8th edn. Oxford University Press Damrosch LF, Oxman BH (2013) Agora: the South China sea, editors introduction. Am J Int Law 107:95–97 Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation) PCA Case No. 2017-06 (Black Sea Arbitration) Driscoll K, Starik M (2004) The primordial stakeholder: advancing the conceptual consideration of stakeholder status for the natural environment. J Bus Ethics 49:55–73 Duzgit Integrity Arbitration (Malta v. São Tomé and Príncipe) (Award, 5 September 2016) PCA Case No 2014-07 (Duzgit Integrity Arbitration) Eesley C, Lennox MJ (2006) Firm responses to secondary stakeholder action. Strat Manag J 27:765–781 Elferink AGO (2016) The South China Sea Arbitration’s Interpretation of Article 121(3) of the LOSC: A Disquieting First. JCLOS Blog. https://site.uit.no/jclos/2016/09/07/the-south-chinasea-arbitrations-interpretation-of-article-1213-of-the-losc-a-disquieting-first/ Etzioni A (1964) Modern organizations. Prentice-Hall Falk R, Juergensmeyer M, Popovski V (eds) (2012) Legality and legitimacy in global affairs. Oxford University Press Franck TM (1995) Fairness in international law and institutions. Oxford University Press Freeman RE (1984) Strategic management: a stakeholder approach. Pitman Grossman N (2012) Sex on the bench: do women judges matter to the legitimacy of international courts. Chicago J Int Law 12:647–686 Guyana v Suriname (Award, 17 September 2007) PCA Case No. 2004-04 (Guyana v Suriname Arbitration (Award)) Klein N (2016) Rocks and Islands after the South China sea arbitration. Aust Year Book Int Law 34:21–29 Klein N, Parlett K (2021) Judging the law of the sea: judicial contributions to the UN convention on the law of the sea. Oxford University Press Krasner SD (1982) Structural causes and regime consequences: regimes as intervening variables. Int Organ 36(2):185–205 McDorman TL (2016) The South China sea arbitration. Am Soc Int Law Insight 20(17). https:// www.asil.org/insights/volume/20/issue/17/south-china-sea-arbitration Mitchell RK, Agle BR, Wood DJ (1997) Toward a theory of stakeholder identification and salience: defining the principle of who and what really counts. Acad Manag Rev 22:853–886

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Mitchell RK, Lee JH, Agle BR (2017) Stakeholder prioritization work: the role of stakeholder salience in stakeholder research. In: Wasieleski DM, Weber J (eds) Stakeholder management. Emerald Publishing, pp 123–157. https://doi.org/10.1108/S2514-175920170000006 Monte Confurco (Seychelles v. France), Prompt Release (Judgment of 18 December 2000, Declaration of Judge Vukas) ITLOS Reports 2000, 122 (Monte Confurco Case (Declaration of Judge Vukas)) Monte Confurco (Seychelles v. France), Prompt Release (Judgment of 18 December 2000, Dissenting Opinion of Judge Anderson) ITLOS Reports 2000, 128 (Monte Confurco Case (Dissenting Opinion of Judge Anderson)) Monte Confurco (Seychelles v. France), Prompt Release (Judgment of 18 December 2000) ITLOS Reports 2000, 86 (Monte Confurco Case) Mossop J (2016) Protests against oil exploration at sea: lessons from the arctic sunrise arbitration. Int J Mar Coast Law 31:60–87 Parent MM, Deephouse DL (2007) A case study of stakeholder identification and prioritization by managers. J Bus Ethics 75:1–23 Permanent Court of Arbitration (2017) Press Release, Timor-Leste and Australia continue engagement with Greater Sunrise Joint Venture and agree timeframe for signature of maritime boundary treaty. https://pca-cpa.org/wp-content/uploads/sites/175/2017/12/20171226-PressRelease-No-12-EN.pdf Qui J, Liu W (2009) Should the Okinotori Reef be entitled to a continental shelf? A comparative study on uninhabited Islands in extended continental shelf submissions. China Oceans Law Rev 2009(2):221–238 Smith LH (2017) To accede or not to accede: an analysis of the current US position related to the United Nations law of the sea. Mar Policy 83:184–193 South China Sea Arbitration (Philippines v China) (Award, 25 October 2015) PCA Case No. 201319 (South China Sea Arbitration (Jurisdiction and Admissibility)) South China Sea Arbitration (Philippines v. China) (Award, 12 July 2016) PCA Case No. 2013-19 (South China Sea Arbitration (Award)) Southern Bluefin Tuna Cases (Australia v. Japan; New Zealand v. Japan) (2000) 39 ILM 1359 (Southern Bluefin Tuna Cases, Jurisdiction and Admissibility) Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan) (1999) 38 ILM 1624 (Southern Bluefin Tuna Cases) Suchman MC (1995) Managing legitimacy: strategic and institutional approaches. Acad Manag Rev 20:571–610 Talmon S (2014) The South China sea arbitration: is there a case to answer? In: Talmon S, Jia BB (eds) The South China sea arbitration: a Chinese perspective. Hart, pp 15–79 Talmon S (2017) The South China sea arbitration and the finality of “final” awards. J Int Dispute Settlement 8:388–401 The ‘Camouco’ Case (Panama v France), Prompt Release (Judgment of 7 February 2000) Case Reports 2000, 10 (Camouco Case) The ‘Volga’ Case (Russian Federation v Australia), Prompt Release (Judgment of 23 December 2002, Declaration of Vice-President Vukas) ITLOS Reports 2001, 42 (Volga Case (Declaration of Vice-President Vukas)) The ‘Volga’ Case (Russian Federation v. Australia), Prompt Release (Judgment of 23 December 2002) ITLOS Case Reports 2002, 10 (Volga Case (Judgment)) The M/V ‘Norstar’ Case (Panama v Italy) Preliminary Objections (Judgment of 4 November 2016) ITLOS Case No. 25: https://www.itlos.org/cases/list-of-cases/case-no-25/case-no-25-preliminary-objections/#c3043 (M/V ‘Norstar’ Case (Preliminary Objections)) The M/V ‘Virginia G’ Case (Panama/Guinea-Bissau) (Judgment of 14 April 2014) ITLOS Reports 2014 (M/V ‘Virginia G’ Case) Trevisanut S (2017) Twenty years of prompt release of vessels: admissibility, jurisdiction, and recent trends. Ocean Dev Int Law 48:300–312 Triggs G (2006) International law: contemporary principles and practices. Lexis Nexis

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Documents Australian Government Department of the Environment and Energy, Australian Antarctic Division (undated) Marine Reserve. http://heardisland.antarctica.gov.au/protection-and-management/ marine-reserve The Guardian (2015) Obama says China bullying smaller nations in South China Sea row. https:// www.theguardian.com/world/2015/apr/10/obama-says-china-bullying-smaller-nations-insouth-china-sea-row United Nations (undated) Status of UNCLOS and related agreements as at 31 July 2017. http:// www.un.org/Depts/los/reference_files/status2010.pdf

Natalie Klein Professor at UNSW Sydney’s Faculty of Law, Australia. Dean of Macquarie Law School (2011–2017) and Acting Head of the Department for Policing, Intelligence and CounterTerrorism at Macquarie University (2013–2014). Worked in the international litigation and arbitration practice of Debevoise & Plimpton LLP, served as counsel to the Government of Eritrea (1998–2002) and was a consultant in the Office of Legal Affairs at the United Nations. Her masters and doctorate in law were earned at Yale Law School. Fellow of the Australian Academy of Law.

Chapter 15

The Legal Status of the São Pedro and São Paulo Archipelago in Light of Article 121 of UNCLOS and the South China Sea Arbitral Award: Uncontested Right to EEZ and Continental Shelf or Brazilian “Creeping Jurisdiction”? Victor Alencar Mayer Feitosa Ventura and Eduardo Cavalcanti Mello Filho Abstract Brazil has historically advanced what has been labelled a “territorialist” agenda for the uses of the sea, having defended extended rights and powers for the coastal State over waters adjacent to the shore. A well-known Brazilian stance has been to adjust the São Pedro and São Paulo Archipelago (ASPSP) to the definition of “island” pursuant to Article 121 of the UN Convention on the Law of the Sea (UNCLOS), so that it generates an Exclusive Economic Zone (EEZ) and a continental shelf of its own. Certain of such a right, Brazil has established a massive marine protected zone within the entirety of the Archipelago’s EEZ. Nonetheless, the recent arbitration award granted in the dispute between the Philippines and China over the South China Sea has endorsed new understandings on the regime of islands, which could eventually counter Brazilian interests regarding the Archipelago. Thus, the present contribution problematizes the position of Brazil amidst possible controversies prompted by the aforementioned arbitration award, whilst aiming to ascertain the consequences of recent jurisprudential findings concerning the concept of “island”, and glimpses into the future of Brazil’s position regarding the rights generated by the Archipelago.

A beta version of this chapter in Portuguese was presented at the III Brazilian Conference on the Law of the Sea, Rio de Janeiro, 24–25 May 2018. V. Alencar Mayer Feitosa Ventura (*) Superintendence for Environmental Management - SUDEMA, João Pessoa, Paraíba, Brazil E. Cavalcanti Mello Filho Federal University of Paraíba (Universidade Federal da Paraíba), João Pessoa, Paraíba, Brazil © Springer Nature Switzerland AG 2020 M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea, https://doi.org/10.1007/978-3-030-42671-2_15

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1 Introduction An interesting aspect of Brazilian foreign policy on oceanic matters concerns the advancement of territorial positions before, during and after the III United Nations Conference on the Law of the Sea, at the end of which the 1982 Convention was signed. Prior to the adoption of the Convention, the customary ordre publique océanique was unjust to the needs of developing nations, at a time when industrialized countries dominated the oceans’ common spaces based on technological and military superiority, legally supported by the mare liberum principle. Thus, Latin American coastal States, in a relatively well-organized manner, urged for the expansion of coastal State jurisdiction over larger maritime zones from the shore.1 In this context, Brazil joined the Latin American States on the eve of the Third Conference, promoting the cause of enhanced coastal State jurisdiction seaward, to the extent of being considered the “leader of territorialists”2—largely due to the unilateral establishment of a 200-mile territorial sea in 1970.3 Since then, and in particular since the entry into force of the UNCLOS, Brazil has maintained what can be described as a “territorialist approach” towards the ocean, in which it seizes positions where the blackletter of the law is vague and blurred, so as to advance the interests of a developing coastal State. Brazilian territorialism manifested itself, for instance, by supporting the creation of the Exclusive Economic Zone (EEZ), the continental shelf beyond 200 nautical miles (nm) and, more recently, through the promotion of maritime strategies and national projects, such as the Brazilian Continental Shelf Survey Plan (LEPLAC) and the effort to inhabit islands farther off the coast on a permanent basis, such as the São Pedro and São Paulo Archipelago. The Archipelago is a set of small rocky formations of approximately 17,000 m2, almost inhospitable to human life, lying approximately 1010 km northeast to the city of Natal, in the state of Rio Grande do Norte, Brazil. The country has exercised undisputed sovereignty over them since the Sixteenth century and began to use the islands strategically in the first half of the 1900s. Upon the entry into force of UNCLOS, Brazil voluntarily accepted a new normative order for the oceans, which also included a new regime for islands, regulated by Article 121 of the Convention. Moreover, in 1996 the country launched the PROARQUIPÉLAGO, a Program which officially labelled the rocky islands an “archipelago” and whose main objective was to adjust the islands to the new

1 This account is well-known among international lawyers. In any case, for further information on the Latin American contribution to the “rise” of coastal States, see García-Amador (1974) and Vargas (1982). 2 Kwiatkowska (1991), p. 163. 3 Decree-law 1.098 of March 25, 1970; approved by Congress by means of legislative Decree 31 of May 27, 1970.

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international regime by making the Belmonte Island habitable, so that the islands could generate an EEZ and continental shelf of their own.4 In the meantime, in 2016 an international arbitration award related to the dispute in the South China Sea (SCS) opposing the Philippines and China has detailed, as never before in International Law, the legal regime of islands.5 However, if international State practice has been heterogeneous and doctrine has been far from uncontroversial, after the ruling, in several disputed points, the regime did not become less hazy. Briefly, the decision determines inherent qualifications of the requirement of “human habitation”, such as the possibility of a group of people permanently inhabiting the island and being capable of providing food, drinking water and shelter without immense continental assistance. This chapter attempts to answer the question of whether the Arbitral Tribunal’s interpretation on “sustain[ing] human habitation or economic life of their own”6 may jeopardize Brazilian claims to an EEZ and continental shelf surrounding the ASPSP. The analysis of the award, in light of the Brazilian territorial claims to the Archipelago, becomes even more important following the fresh creation of gigantic marine protected areas in the Archipelago’s EEZ, due to the fact that Brazil necessitates clear and uncontested jurisdiction in that zone. Therefore, this chapter aims to: situate Brazil’s stance amid possible controversies prompted by recent international jurisprudence; ascertain the consequences of recent international judicial decisions and arbitration awards on the legal regime of islands; and peek into the future of Brazil’s strategy for the Archipelago. For that, the chapter focuses initially on the Brazilian practice regarding the EEZ, so as to level the ground for a discussion on the PROARQUIPÉLAGO Program and its goals to inhabit the Belmonte Island, enhance scientific research in the region, and ultimately to adjust the Archipelago to the regime of islands prescribed in the Montego Bay Convention. The third item analyses the main arguments of the South China Sea award concerning the object under examination, and finally, the chapter systematizes the findings from previous items, in order to analyse the Brazilian jurisdictional assertions over the São Pedro and São Paulo Archipelago and the impact of recent international jurisprudence on the Brazilian position, domestic legislation and “oceanopolitical” interests.7

Brazilian Interministerial Commission for Marine Resources. Resolution n 001/96/CIRM. The PROARQUIPÉLAGO is part of the Sectoral Plans on Marine Resources (PSRM). 5 South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China). Award of 12 July 2016. 6 SCS Award, 2016, paras. 473 to 511. 7 The expression “oceanopolitics” is employed, among others, by MORE (2012), pp. 232–248. 4

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2 Territorialism in the Law of the Sea: Controversial Brazilian Practice Regarding the EEZ In the field of international ocean relations, like every other country, Brazil has historically prioritized the promotion of self-interests.8 Such interests can be aligned on three major axes: national security, through the increase in marine areas where the State exercises considerable security and military authority; socioeconomic development, by ensuring exclusive access to marine resources, both in the 200-mile area and on an even larger portion of the continental shelf that can extend beyond 200 nm; and geopolitical influence, through the adoption of a solidary approach to marine resources beyond national jurisdiction, as well as the consolidation of the South Atlantic Ocean as an area subject to Brazilian natural influence. In doing so, Brazil joins forces with different constellations of States—sometimes developed, other times showing more affinity with developing countries— depending on the topic under discussion. With the above interests in mind, Brazil stuck to its positions, sometimes solitarily, during the UNCLOS negotiations and even after its adoption. One of the major struggles involved the demand for greater jurisdiction of the coastal State over artificial facilities, structures and islands in both the EEZ and the extended continental shelf. On the subject, Brazil defended the full discretion of the coastal State to consent to any and all structures in areas under national jurisdiction, an understanding that was confirmed in paragraph 5 of the Brazilian interpretative declaration to UNCLOS, when it stipulates that the Brazilian State is entitled to the exclusive right to authorize and regulate the construction and operation of these structures, without exception.9 Such a position did not go unquestioned by other countries for alleged violation of Article 56 (1) (b) (i), which at no time mentions “all” islands, facilities and structures. The subject remains highly controversial, subject to conflicting interpretations to date. With respect to the specific object of this chapter, the EEZ, Brazil has systematically supported the expansion of coastal State powers and rights over the airspace, water column, soil and subsoil up to 200 nm. From early on, the country understood the strategic relevance of the EEZ as key to human activities in the oceans, a zone where nutrients and biodiversity at the sea-shore interface enable the richest fisheries in the world.10 Hence, Brazilian intentions in the negotiations’ phase were relatively clear: first, to reverse the unequal order of access to marine natural resources that greatly benefited the maritime and technically advanced powers, thus consolidating a

8

For a detailed account of the Brazilian practice and stances preceding the UNCLOS negotiations, see Rangel (1973), p. 74. See also Ventura (2018), pp. 168–171. 9 Brazilian Interpretive Declaration upon signature of UNCLOS, 1982. para. V. 10 For James Kraska, the confluence of such resources together with “littoral imperialism” render the EEZ “one of the most susceptible areas on earth for interstate conflict. Consequently, the zone has been of central importance to military planning and operations, a fact that has been underappreciated on both sides of the Potomac in recent years”. Kraska (2011), pp. 134–150.

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strong economic zone under broad coastal State rights; and secondly, the Brazilian military forces intended to guarantee State security. It can be anticipated that Brazil (and other States) have been successful in achieving the first objective, but have not achieved so much success over the latter, as analysed below. Among the rights sought by coastal States in general, was the exclusive access to the EEZ resources, in particular high market-value fisheries. The 200-miles zone emerged to protect the fishing and hydrocarbons’ industry of least developed countries, as those resources are more abundant in shallower regions not so distant from the shore. Brazil’s fishing potential has been the subject of studies and scientific surveys by the Interministerial Commission on Marine Resources (CIRM), chaired by the Brazilian Navy. This is the case of the Program for Evaluation of the Sustainable Potential of Living Resources in the Exclusive Economic Zone (REVIZEE) instituted in 1994, together with UNCLOS’ entry into force. In this regard, the Convention established a system of exclusive access, subject to rational and sustainable development standards.11 With regard to the consolidation of coastal State security variables in the EEZ, the UNCLOS was not as explicit as Brazil intended it to be. During the Conference, the country repeatedly opposed the legality of military manoeuvres with the use of weapons and explosives in jurisdictional waters without the coastal State’s consent, striving to make the Convention more unambiguous on the rights and duties of States within the EEZ.12 The objective was to prevent military activities and drills that could be perceived as posing a threat to security on land from being legally carried out in the zone without coastal State consent. However, intransigence of the great naval powers and their allies, backed by the consensus rule adopted by the Conference, rendered the text ambiguous.13 After “losing” the negotiation’s battle, Brazil lodged interpretative declarations containing its stances on the hermeneutic scope of certain parts of the Convention. Because it was negotiated under the package deal methodology, the UNCLOS did not allow for reservations at the time of signature, in accordance with Article 309 of the Convention, but signatory States were able to offer interpretative declarations, in which their understanding of a particular provision was made public. Brazil submitted two interpretative declarations referring to specific provisions of the final text of the treaty: one at the time of signature on December 10, 1982; and another at the time of ratification, on December 22, 1988. The explicit objective was to consolidate the positions held by the country during UNCLOS negotiations and to demonstrate coherence to the international community, even though the positions could raise

11

Arts 61 and 62 of UNCLOS, on the conservation and utilization of living resources respectively. During UNCLOS negotiations, the Brazilian delegate, Mr. Calero Rodrigues, emphasized that “military activities such as manoeuvres with the use of weapons and explosives should not be carried out in the zone without the consent of the coastal State”. See A/CONF.62/C.2/SR.53 53rd meeting of the Second Committee Extract from the Official Records of the Third United Nations Conference on the Law of the Sea, Volume IX, para. 3. 13 Longo (2014), p. 47. 12

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protests as to their legality and accordance with the literal wording of the Convention. Pursuant to both declarations, the South-American country asserted that the UNCLOS provisions prohibiting the use of force against the integrity or independence of any State under Article 301 of the Convention would also apply in the jurisdictional waters of the coastal State, i.e. the EEZ.14 There, the freedoms of the high seas prescribed in UNCLOS Article 87 (1) could not be invoked to justify activities that imply threat or use of force against the coastal State. Such a threat or use of force prevails—according to the Brazilian official interpretation—in exercises and military maneuvers within 200 nm from the coast, a situation in which the Brazilian Navy considers of diplomatic “good form” for other States to request consent to carry out such activities in the zone.15 With regard to the Brazilian practice, it was possible to confirm with Navy officials that naval forces of other States have requested consent for conducting military exercises within the Brazilian EEZ. However, due to the sensitivity of this sort of information, it was not possible for the authors to strengthen knowledge about that practice, nor to concretize the episodes in which consent was requested. Such a historical track of EEZ postures emphasizes how much the issue of coastal State’s rights and powers over adjacent waters matters to the Brazilian State. As the immediate geostrategic area offshore, interests in the EEZ are due to considerations of national security, autonomous economic development and geopolitical influence in the South Atlantic Ocean.16 To grasp this is key to understanding Brazil’s position In line with the Brazilian Interpretative Declaration, “[. . .]III. The Brazilian Government understands that the provision of Article 301, which prohibits “any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations”, apply, in particular, to the maritime areas under the sovereignty or the jurisdiction of the coastal State. IV. The Brazilian Government understands that the provisions of the Convention do not authorize other States to carry out in the exclusive economic zone military exercises or maneuvers, in particular those that imply the use of weapons or explosives, without the consent of the coastal State.[. . .]”. Available at: http://www.un.org/depts/los/convention_agreements/convention_declara tions.htm#Brazil%20Upon%20signature. 15 James Kraska considers that Brazil engages in a particular type of excessive maritime claim, one in which the State “asserts sovereign rights or jurisdictional competence that goes beyond what is permitted in the Convention. Typically, this approach takes the form of domestic laws and regulations that unlawfully limit or diminish the right of the international community to conduct activities in the zone. China and Brazil typify this model”. See Kraska (2011), p. 26. 16 In trying to explain Brazil’s positions in the Law of the Sea, namely towards the EEZ, James Kraska claims the country is “captivated by a sense of ocean destiny that is defined in opposition to its large northern neighbor, the United States”. See Kraska (2011), p. 308. The “sense of destiny” mentioned by Kraska is to be found in a Report by the Brazilian Navy, in which the Admiral Paulo de Castro Moreira da Silva remarked that “Brazilian maritiminess, more than a vocation, is a destiny. It is not an alternative, but a necessity”. The Admiral’s prophetic word choice should be seen more as a call to increased focus on the ocean in domestic public policies, than a transcendental fate of conquering the world’s oceans. Each and every coastal State value the ocean link, due to the plethora of benefits it comprises, but Brazil lacks a basic “maritime mentality”, on which such a “sense of ocean destiny” could be erected. Data show that Brazilians lack knowledge about 14

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on the legal definition of “island” and the country’s jurisdictional claims over the EEZ and continental shelf around Brazilian rocky features offshore, claims which have gone uncontested by the international community. Of the Brazilian oceanic features,17 those that set up a borderline situation with respect to the right to an EEZ and continental shelf of their own are the ones of the São Pedro and São Paulo Archipelago. For them, Brazil engaged fiercely during negotiations and after the adoption of UNCLOS to make justice to all the rights guaranteed by Article 121 of the Convention to islands.

3 The Archipelago of São Pedro and São Paulo: Brazilian Jurisdictional Assertions A relevant legal overlap for most coastal States consists in the one between the EEZ regime and that of islands, parts V and VIII of the Convention, respectively.18 In this regard, UNCLOS Article 121, which has somewhat timidly disciplined the islands’ regime, defines “island” as a natural formation of land, surrounded by water and uncovered during high tide. These formations, provided they meet the conventional requirements, shall be entitled to territorial sea, contiguous zone, continental shelf and an EEZ of their own. A most relevant exception to such an entitlement dictates that “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf”—Article 121 (3) of UNCLOS. In light of the exception contained in paragraph 3, while there have never been doubts regarding the status of the island of Fernando de Noronha, and Trindade and Martim Vaz, the same could not be automatically maintained concerning the São Pedro and São Paulo islands, what could have called into question the right to an EEZ and a continental shelf around them. The Archipelago consists of a set of small rocky islands which host no forests, springs, sand, beach, nor any other landscape of the kind. According to the Brazilian Navy, biodiversity on the rocks themselves is

maritime transport, Brazilian areas of sovereignty/jurisdiction at sea, percentage of offshore hydrocarbon resources, the existence of UNCLOS as well as the LEPLAC—the Brazilian Continental Shelf Survey Program. See Centro de Excelência para o Mar Brasileiro (CEMBRA) (2012), pp. 455–471. 17 Other oceanic features upon which Brazil exercises sovereignty are: Fernando de Noronha, pertaining to the State of Pernambuco; Trindade and Martim Vaz, belonging to the State of Espírito Santo; Atol das Rocas, pertaining to the State of Rio Grande do Norte; and Abrolhos, archipelago located at the coast of Bahia. The latter two features are relatively small colarine formations, unsuitable for human habitation. 18 Historically, the importance of islands has gradually increased. Initially, an island did not have the same conception of land as the continent, thereby not generating a territorial sea, for instance. It is not the case nowadays. Besides, upon the creation of the EEZ and the continental shelf regimes, strategic interest in island-like features has increased exponentially.

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limited, with sparse ground vegetation. Common sense would certainly doubt whether these should be considered islands pursuant to the UNCLOS regime and call into question their entitlement to an EEZ and continental shelf. Hence, Brazilian authorities acted to confirm the island-status of its natural land formations surrounded by water, in particular the São Pedro and São Paulo islands.19 Those features have been on the radar of Brazilian national interests for some time, as already in the 1930s the Brazilian Navy installed a lighthouse on the Archipelago’s main island, Belmonte.20 In 1996, CIRM initiated a scientific program in the Archipelago, aimed at permanently keeping at least four researchers in a research station on the Belmonte Island—the PROARQUIPÉLAGO. Between 2007 and 2008, a new and improved scientific station was built as part of logistic efforts undertaken by the Brazilian Navy to promote marine research in geology, geophysics, biology, fishery resources, oceanography, meteorology and seismology.21 The Brazilian Navy elucidates that the main objective of PROARQUIPÉLAGO is “to guarantee the permanent habitability of the remote region of ASPSP, which allows the country to establish an Exclusive Economic Zone of 450,000 km2”.22 The main purpose of such a gigantic area is allegedly to grant Brazil exclusive economic and scientific rights in the region. When addressing the strategic interests advanced by the Program, the Brazilian Navy specifically refers to Article 121 (3) of UNCLOS, thus concluding that, by guaranteeing the continuous habitability of the region, Brazil has recognized the 450,000 km2, approximately 6% of the country’s colossal land territory. In Brazil’s view, the requirement of continuous habitability is fulfilled in the case of ASPSP by scientists and researchers. Allegedly, the PROARQUIPÉLAGO is part of a myriad of actions taken to promote national security, socioeconomic development and the geopolitical influence of the country pursuant to the new Law of the Sea.23 Proof of this is contained in publications of the Secretariat of CIRM (SECIRM, in Portuguese) which point out some of the positive repercussions of the Program upon its tenth anniversary, namely: (i) increased Brazilian persuasive power before international organizations that regulate migratory fisheries with high commercial value, such as the International Commission for the Conservation of Atlantic Tunas (ICCAT); (ii) concrete possibility of preservation of several endemic species, which enables the country a vanguard in protective efforts in the international sphere; (iii) enhanced scientific data production with significant results and direct impacts on the sustainable 19 The Archipelago is composed of ten small rocky formations located approximately 1010 km off the coast of Natal and may be considered a unique place in terms of biodiversity, natural landscape, scientific potential, among others. 20 Longo (2014), p. 74. 21 CIRM Newsletter, Brasília, Dec. 2014. 22 Brazilian Navy, online. Available at: . 23 The relevance of the archipelago and its scientific station to the CIRM can be equally perceived in the launching of commemorative postage stamps in 2014, alluding to ASPSP. CIRM Newsletter, Dec. 2014.

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optimization of food supply chains, generation of employment and elevated income in various segments of society; (iv) and the development and concrete use of technological know-how on system-building in inhospitable areas, as well as on clean energy production and logistic support capacity for long distances.24 Brazilian practice, in this sense, is not much different from that of other countries.25 Due to islands’ general economic and geopolitical relevance, it can be inferred that States, as rational actors,26 are invariably expected to claim an EEZ and continental shelves as a result of every offshore rocky formation under national sovereignty which is uncovered during high tide. For instance, France claims extended maritime spaces around the Clipperton Island, an uninhabited 6 km2 atoll in the Pacific, 1250 km southwest of Mexico.27 Japan also claims such zones in relation to the Okinotorishima Island (and other smaller formations), of 8 km2 and uninhabited, to the point of directing considerable funds to marine conservation measures on the island—to the discontent of South Korea and China. The latter has similar practice in the South China Sea and other places, yet in larger and more impressive magnitudes.28 One of the few exceptions to such craving for greater jurisdiction seaward is offered by the United Kingdom which, since ratifying UNCLOS, no longer claims an EEZ nor a continental shelf of the Rockall and Shag rocks, located within the EEZ of the Falkland Islands.29 However, to claim does not necessarily mean to have the right to. The next section of the chapter scrutinizes whether, in theory, the ability of the São Pedro and São Paulo Archipelago to generate an EEZ and a continental shelf of its own could be legally challenged internationally, and what could Brazil’s course of action be in order to maintain extended functional jurisdiction around the Archipelago.

24

Viana et al. (2009), pp. 22–23. Several States have made features allegedly not capable of sustaining human habitation or economic life of their own subject of claims to an EEZ and (outer) continental shelf. Examples include: France, and the islands in French Polynesia, Kerguelen Islands and Crozet Islands, Clipperton Island, and Amsterdam Island. Australia and the Heard Island and McDonald islands. Fiji and the Ceva-i-Ra. Kiribati and the McKean Island. Mexico and the Clarion Island. Venezuela and the Aves Island. Norway and the Bouvet Island. Portugal and the Selvagens islands. United States and the Maro Reef, Palmyra Atoll, Kingman Reef, and Howland and Baker Islands. 26 On the school of rational choice applied to International Law, see Goldsmith and Posner (2005), p. 10. 27 The French Maritime Zone Delimitation Instrument containing the coordinates of the Clipperton Island and its EEZ can be found online at http://www.un.org/depts/los. 28 Song (2010), p. 663. 29 See the UK statements reprinted in British Year Book of International Law 68 (1997): 599–600. In addition, see Jayakumar et al. (2014), p. 108. To that measure, one could contrast the UK’s claim to exaggerated continental shelf outer limits, beyond 200 nm, around the Ascension Island, which prompted the Commission on the Limits of the Continental Shelf to recommend otherwise. See Recommendations prepared by the Subcommission established for the consideration of the Submission made by the United Kingdom of Great Britain and Northern Ireland in respect of Ascension Island, 31 March 2010, para. 53. Available at: . 25

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Despite the PROARQUIPÉLAGO Program, which aims at making the rocky formations compatible with the Convention, a few considerations could eventually weaken the Brazilian stance, namely the findings of the Arbitral Tribunal in the course of the dispute between the Philippines and China, which also dealt with the legal definition of “island”. The next section will analyse the understandings adopted by international arbitrators, well aware that the award produces effects inter partes and considering the proper distinctions between Chinese and Brazilian interpretations on the definition of islands, as well as both countries’ practices in that regard. Finally, this chapter will assess the status of the Archipelago’s rocky formations in light of the Arbitral Tribunal’s recent decision, in order to ascertain whether recent judicial understandings pose a threat to the Brazilian position concerning the ASPSP.

4 The View of the Arbitral Tribunal in the South China Sea Arbitration It would be a euphemism to refer to the application of UNCLOS Article 121 as difficult. It has been and still is a Pandora’s box. State practice regarding that provision is heterogeneous, considering that the travaux préparatoires of the Convention do not contribute much to a detailed and uniform interpretation,30 and that the question had not been subject to a meticulous judicial analysis until 2016.31 In that year, the Arbitral Tribunal issued an award in the Philippines v. China case, also known as the South China Sea Arbitration.32 The dispute involved Chinese claims for EEZs and continental shelves around islets, reefs and shoals which China had allegedly turned into islands, in the politically and diplomatically troubled South China Sea. In a paradigmatic decision, the Arbitral Tribunal determined the legal status of a number of features in the region, so it could ascertain the due maritime zones and the rights and duties of coastal States therein. The award, though quintessential to the development of the international islands’ regime and

30

Erik Franckx lists and agrees with a number of authors who regard the travaux préparatoires of little help in this issue. Among them, David Anderson and Clive Schofield. Franckx points out that Art. 121 (3) first appeared in the informal single negotiating text (ISNT) in 1975 as a result of many points of view—there was not only one perspective on the meaning of “rock”. The authors are of the same opinion, based on the bibliography analysed. Franckx (2014), p. 120. 31 One may mention some of the cases that touched on the question of the legal regime of islands. At the International Court of Justice: Nicaragua and Colombia (2012), Norway and Denmark (1993), Romania and Ukraine (2009), Qatar and Bahrain (2001). At the International Tribunal for the Law of the Sea, Seychelles and France (Monte Confurco case, 2000), Russia and Australia (Volga case, 2002). One can also cite the case at the Permanent Court of Arbitration between Eritrea and Yemen in 1998. 32 South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China). Award 12 of July 2016.

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pronounced by a Tribunal composed by well-renowned jurists, is not uncontroversial.33 The context of the dispute is extensively known. In the last decade, China has militarized the region, built artificial islands, and pursued practices contrary to the Law of the Sea, including the claiming of sovereignty over the so-called 9-dash line, as well as a great part of the Spratly Islands, which would grant the country large portions of EEZs and continental shelves. In the face of such actions, the Philippines took the issue to an Arbitral Tribunal through the UNCLOS compulsory dispute settlement mechanism.34 The starting point for the examination of the dispute was to determine the exact scope of UNCLOS’ provisions governing the islands’ regime—Article 121 (1) to (3). After all, in the South China Sea, six countries claim total or partial sovereignty over the Spratly Islands, at a region key for international shipping and supposedly rich in hydrocarbons. At the core of the Philippines’ argument is the claim that China has no support of the Law of the Sea to establish the nine-dash line and that all formations over which China claims sovereignty are either low-tide elevations or fall under Article 121 (3) of UNCLOS, thereby not generating an EEZ or continental shelf of their own.35 That quarrel involves variables far more complex than the ones Brazil has ever had to face in the West side of the South Atlantic Ocean, a relatively calm zone in terms of boundary disputes and diplomatic controversies. Nonetheless, as announced in the introduction, it is of scientific and academic relevance to assess the Brazilian stance regarding the Archipelago of São Pedro and São Paulo in light of the recent understandings adopted within the aforementioned award. A particularly thorny question that the Arbitral Tribunal had to decide upon concerned the definition of “rock” and of the condition of “sustain[ing] human habitation or economic life of their own”. In Brazil, wording given by Decree 99.165/90 (which domestically promulgates the UNCLOS) to paragraph 3 mentions “rochedos que, por si próprios, não se prestam à habitação humana ou a vida econômica”—rocks which, on their own, cannot sustain human habitation or economic life. The Brazilian version differs slightly from the official texts in Spanish, French and English, accordingly: 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

33 The arbitrators appointed by the parties were Thomas Mensah, Jean-Pierre Cot, Stanislaw Pawlak, Rüdiger Wolfrum and Alfred Soons. The first four are or have been judges at the International Tribunal for the Law of the Sea, and Professor Soons, who is recognized for his studies on marine scientific research, has written an influential work on UNCLOS Article 121. See Kwiatkowska and Soons (1990), pp. 139–151. 34 That was the Philippine strategy, for sovereignty issues do not fall within the ratione materiae jurisdiction of the tribunals of UNCLOS Art. 287, and because China chose to exit the compulsory settlement of disputes on delimitation and analysis of historical titles and bays. 35 South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China). Award 12 of July 2016, para. 112.

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3. Le rochers qui ne se prêtent pas à l'habitation humaine ou à une vie économique propre n'ont pas de zone économique exclusive ni de plateau continental. 3. Las rocas no aptas para mantener habitación humana o vida económica propia no tendrán zona económica exclusiva ni plataforma continental.

Whereas the official versions suggest that the phrase “of their own” could be interpreted as referring only to economic life, leaving “human habitation” unqualified and unconditioned, the Brazilian wording could indicate that both requirements of human habitation and economic life are qualified by “of their own”, ergo rising the threshold for fulfilling both conditions. Regarding the Archipelago, particularly the Belmonte Island, which hosts the scientific station, it is indisputable that it consists of a natural land formation surrounded by water, which is uncovered at high tide. However, the third paragraph of Article 121 brings to surface specific restrictions which remove the status of island from certain “rocks” which “cannot sustain human habitation” or which “cannot sustain economic life of their own”, thereby depriving such rocks from an EEZ and continental shelf of their own. It is therefore appropriate to analyse and distinguish these expressions, in particular the last two, in light of the Arbitral award in the South China Sea Arbitration and pertinent specialized literature, so as to analyse the Brazilian context hereupon.

4.1

Definition of “Rock” in the Law of the Sea

In the award, the Arbitral Tribunal pondered that the term “rock”, used in paragraph 3, Article 121 of UNCLOS, is not defined by virtue of geological or geomorphological criteria.36 In other words, Article 121 (3) applies not only to rocky features, but also to those of sand, clay, coral or other material, so that there would be no distinction between rocks and islands. Thus, in Stefan Talmon’s view, the effect would be the same if the provision were: “Islands that cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf”.37 In spite of the interpretation embraced by the arbitrators, there are reasons to disagree with the award. First, because the interpretation is contrary to the ordinary meaning of the word “rock”.38 Secondly, if there was no distinction between “island” and “rock”, one would be left wondering why the drafters of the Convention opted for the expression “rock”. Third, the travaux préparatoires show that

36 “Moreover, any contrary interpretation imposing a geological criteria on Article 121(3) would lead to an absurd result”. South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China). Award 12 of July 2016, para. 481. 37 Talmon (2017), p. 868. 38 The idea of considering the ordinary meaning of a word or an expression in international treaties is provided for in Art. 31 (1) of the Vienna Convention on the Law of Treaties.

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negotiators made efforts to emphasize that not every island is a rock.39 In short, drafters sought a regime that would not have every insular feature generating vast maritime spaces subject to national jurisdiction, at the expense of the rest of humankind. Concerns with preserving the concept of common heritage of mankind (nowadays turned into principle) were deeply embedded in the UNCLOS negotiations. Hence, during the negotiations on Article 121, it was suggested that certain features should not have an EEZ and continental shelf, as delegations sharpened the legal definition of islands, islets, low-tide elevations, and rocks. For instance, the provision corresponding to Article 121 appeared in the ISNT (Informal Single Negotiating Text) and excluded low-tide elevations from the definition of island, thus determining that “rocks which cannot sustain human habitation or economic life of their own shall not generate EEZ and continental shelf”.40 Some States even suggested the inclusion of “small islands” and “islets” in the provision, but were faced with fierce objection by several Pacific Small Islands, Developing States, and others. With great representativeness, small island nations opposed the suggestion, fought so that non-rock formations were not included in such a provision, and succeeded. In the end, two possible interpretations of the reasoning adopted by the Arbitral Tribunal emerged. On the one side, based on the previously mentioned arguments, scholars who have embraced a strict reading of the term “rocks”, referring only to rocky features, geologically speaking, criticized the decision as flawed. For Stefan Talmon, the award is contrary to the ordinary meaning of the term to treat any area of land irrespective of its composition as a ‘rock’. Second, the term ‘rocks’ in Article 121 (3) would be devoid of a distinct meaning and one might wonder why the drafters did not employ the term island, if that is what they intended. Third, and most importantly, the interpretation is not in accordance with the drafting history of the provision.41

On the other side, Barbara Kwiatkowska and Alfred Soons (the latter having participated as an arbitrator in the SCS Arbitration), commented after a meticulous analysis of Article 121’s legislative history, that no normative element supports the distinction between rocks in a geological sense and other islands. Even during the Third Conference, the term “rock” was said to be used neither in legal nor scientific senses, thereby referring to any insular formation, not just literal rocks, but also sand, clay, corals or other material.42 Following that same line of reasoning, Alex Elferink

39

In 1999, Jonathan Charney stated that there was no observable clarification in the travaux préparatoires, which is why he proceeded to analyse the ordinary meaning of the term “rocks”, stating that it is controversial. Charney (1999), pp. 867–868. 40 UNCLOS III. Informal Single Negotiating Text, Part II. UN Doc. A/CONF.62/WP.8/PART II, 1975, OR IV, 152, 170–171. 41 Talmon (2017) p. 869. 42 It was the case of the Venezuelan delegate, Falcon Briceno. For further detail, see Franckx (2014), p. 114.

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considered the SCS award well-founded and praised the clarification offered by the arbitrators to the question. According to Elferink: limiting the term’ rocks’ to features composed of rock would lead to according ‘features [that] are more ephemeral than a geological rock and may shift location or appear and disappear above high water as a result of conditions over time’ greater entitlements than more stable and permanent features.43

The Arbitral Tribunal’s argument is based on a teleological interpretation44 of UNCLOS Article 121: if the provision creates limits, then excluding features that are less stable than rocks and that cannot sustain human habitation or economic life of their own does not make any sense.45 Indeed, a contrary interpretation is nonsensical, as it would diminish the common heritage of mankind, engender disputes and disregard the specific historical purposes of maritime spaces, such as the EEZ or continental shelf.46 In any case, the Tribunal held that if one considers the ordinary meaning of “rock”, one would reason that it is an aggregate of minerals and eventually organic matter, i.e. the geological definition would be equally broad.47 Should this argument not persuade the lawyer, one must recall that the legal concept of a continental shelf is different from the geological one.48 Transposing the discussion on whether rocks are to be interpreted in their scientific or legal meaning, comprising more or less features to the Brazilian case study suggested in this chapter, it seems undeniable that the natural formations of the São Pedro and São Paulo Archipelago are rocky features, in the sense attributed by the Arbitral Tribunal. Thus, the debate may not make that much of a difference to Brazil at first sight. However, there are States that claim maritime spaces derived from non-rocky formations which can hardly sustain human habitation or economic life of their 43

Elferink (2016), p. 2. Art. 31(1) of the Vienna Convention on the Law of Treaties (VLCT) is clear when it stipulates that a treaty should be interpreted in light of its object and purpose, enshrining the teleological interpretation as an important hermeneutical method in international law. According to Art. 32 of the VCLT, the analysis of the travoux préparatoires must be an additional interpretative resource. 45 There is also an international precedent that Quitasueño, a Colombian protrusion of coral, was considered a rock, in the sense of Art. 121(3). “International law defines an island by reference to whether it is ‘naturally formed’ and whether it is above water at high tide, not by reference to its geological composition . . . The fact that the feature is composed of coral is irrelevant”. Territorial and Maritime Dispute (Nicaragua v. Colombia), Merits Judgment, ICJ Reports 2012, pp. 624–645, para. 37. 46 Charney argues that, just as one can say that telos is the maximization of common spaces, it can be argued that during the conference there was a without precedents expansion of maritime spaces under state jurisdiction and that this could be considered the greatest goal achieved during the Conference. Charney (1999), p. 866. 47 South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China). Award 12 of July 2016, para. 480. 48 The legal concept encompasses the continental shelf in the geological sense, the slope, and the continental rise. 44

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own. The arbitral award, alongside the teleological interpretation espoused therein, thus remains relevant for the analysis of islands, rocks and the legal treatment given to them by Article 121 of UNCLOS, in corners of world other than the South China Sea.

4.2

The Requirement for Rocks to Sustain Human Habitation or Economic Life of Their Own: The Case of the ASPSP

The arbitral award found that the name of a feature provides no guidance as to whether it can sustain human habitation or an economic life of its own.49 It is thus worth analysing the award’s findings in relation to those requirements pursuant to Article 121(3) of UNCLOS, which enable a rock to generate an EEZ and continental shelf of its own. According to the SCS award,50 the concerned feature must fulfill just one of the requirements, whether being able to sustain human habitation or to sustain an economic life of its own, since the wording of the Convention uses the conjunction “or” to indicate alternative conditions.51 In Brazil, the PROARQUIPÉLAGO opted for satisfying the first condition, adjusting the islands to sustaining permanent human habitation. However, the question that defines the status of Belmonte as an island which generates an EEZ and continental shelf of its own is: can it really sustain human habitation? It is therefore necessary to examine whether the detailed reading of the SCS award could raise further questions regarding the ability of the Archipelago to fulfill the requirements of Article 121(3). According to the Arbitral Tribunal, the habitability requirement is a matter of capacity (can), objectively observable, not a de facto state. That is, the rock may currently not have inhabitants, but it must be capable of sustaining human habitation. Furthermore, the feature must sustain human habitation “in its natural capacity”, i.e. without the “introduction of technology and extraneous materials”,52 so that the provision should be read as “cannot sustain, without artificial addition, human

49

South China Sea Arbitration, para. 482. South China Sea Arbitration, paras. 494–496. 51 The majority of the doctrine follows this understanding. In the travaux préparatoires, the particle “and” was replaced by “or”. However, Franckx disagrees, because, in his view, it makes the provision useless. He argues that some States may defend that maintaining “military personnel and scientists” or “promoting fishing activity on the coast and the exploitation of mineral resources” removes the incidence of paragraph 3. Using logical-linguistic arguments, Franckx concludes that the promotion of human habitation and economic life in the concerned feature occur almost indistinctly. It is, however, a minority position, with which the present authors do not agree. See Franckx (2014), pp. 116–117. 52 South China Sea Arbitration, para 509. 50

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habitation”.53 It should also be noted that no island, however self-sufficient, lives entirely without assistance from the continent. For that reason, the best interpretation of the provision is one based on reasonableness; after all, if the interpretation is too restrictive, most or all islands would not be able to sustain human habitation, and if it is very broad, almost every feature would generate an EEZ and continental shelf of their own.54 The arbitrators also held that “sustaining human habitation” means providing what is necessary to maintain humans alive and healthy over a continuous period of time, i.e. potable water, food and shelter for a group of people to enable their residence for an indefinite period of time.55 By “sustaining”, the Arbitral Tribunal understood the support and provision of essentials for a healthy life of humans over a continuous period of time, whereas “habitation” was associated with a “non-transient presence of persons who have chosen to stay and reside on the feature in a settled manner” (emphasis added).56 Consequently, a feature that is able to sustain human habitation solely through the continuous provision of supplies by the continent, the construction of desalination units or the artificial introduction of arable land would not fulfill the requirement of “sustaining human habitation” pursuant to Article 121(3) of UNCLOS. From the analysis supra, it remains clear that the arbitrators considerably rose the threshold for a natural feature to reach the legal status of island and, thus, to have the right for an EEZ and a continental shelf of its own. A possible reading of the award, under a teleological perspective, may consider the Tribunal’s interpretation consistent, for if no difference between human habitation and the mere presence of people exists, then any islet, with the technology inputs available nowadays, would be capable of sustaining human life and generating its own EEZ and continental shelf. In other words, to consider human habitation and the presence of people, one and the same thing would render Article 121(3) unsatisfactory and contrary to the provision’s principio-logic genesis, i.e. to limit the expansionist impetus of coastal States, in order to preserve common spaces and the common heritage of mankind. Yet, another view is also possible, grounded in the arguments explicated below. Considering the elaboration of Article 121 effected by the Arbitral Tribunal, it is pertinent to examine the specific context of the São Pedro and São Paulo Archipelago, and whether the Belmonte Island reaches the threshold of an island entitled to the benefits contained in Article 121(2) of UNCLOS.

53

South China Sea Arbitration, para 510. That formulation was a clear judicial censure to China’s policy of artificially building islands and making natural features habitable through substantial human modification, in order to obtain EEZ and continental shelf areas over vast portions of the South China Sea. 54 Talmon (2017), p. 873. 55 South China Sea Arbitration, para. 484. 56 South China Sea Arbitration, para. 487.

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5 Article 121 of UNCLOS, the SCS Arbitral Award and the Brazilian Case In its justification for the PROARQUIPÉLAGO, the Brazilian Navy arguments that the scientific station located at the Belmonte Island lodges four researchers uninterruptedly, plus military personnel, so it could be said that the island effectively sustains human habitation. However, for the purpose of analysing the compatibility of the Brazilian Program with Article 121(2) and (3) of UNCLOS, as illuminated by the recent SCS arbitral award, it is necessary to dive into the minutiae of the facts and the particular context of the Brazilian claim. First, each researcher spends up to 15 days at the station and must undergo previous training due to the harsh weather impacting the Archipelago. Such a brief period of time on the island could be seen as configuring a “transient presence of persons”—thus in breach of the requirement of “habitation”. Secondly, the region can be said to be suboptimal to human life, considering the strong waves, frequent seismic shocks, social isolation, coexistence with sharks and wild birds nearby,57 variables that justify the training of researchers, constant monitoring by the Navy, design of emergency plans etc.58 Erratic living conditions could also be interpreted as not “sustaining” human life, but just providing a ground where a few persons may survive, not live. Finally, most of the food, beverages and resources consumed by researchers on the island are supplied from the mainland by Navy ships. It could, thus, be claimed that the Archipelago may not sustain human habitation in its “natural capacity”, that is, without “artificial addition”, as worded by the arbitral award. In light of the above, two questions can be raised: is Brazil actually entitled to an EEZ and continental shelf around the Archipelago? And what sets apart the Brazilian jurisdictional claim from that of China in relation to EEZs and continental shelves around island-like features? Concerning the first question, Brazil has chosen to inhabit the Archipelago’s main island for the purpose of marine scientific research, instead of economic exploitation. Given that Article 121(3) provides coastal States with the option to choose between an “economic life” of their own or permanent human habitation, Brazil has opted for satisfying the latter with a permanent scientific mission on the island, which comprises human habitation. Thus, in the view of Brazilian authorities, giving the Belmonte island a “scientific life” of its own excludes the applicability of paragraph 3, Article 121 of UNCLOS to the ASPSP, and generates the right for an EEZ and continental shelf around the Archipelago. The country could have chosen to install economic structures on the islands (such as refrigerated containers), to fulfill the requirement of “an economic life” but chose to prioritize a scientific and environmentally sound life.

57 58

In 2006, the first scientific station was partially damaged by harsh weather and strong waves. Viana et al. (2009), pp. 19–20.

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On to the other requirements, technology has made the permanent habitation of groups of researchers on the Archipelago possible, via wind and solar energy, as well as water production by reverse osmosis in situ. Here, the Brazilian claim radically departs from the Chinese, as no substantial human modification has been conducted to change the islands’ structure nor outlook—technology is being employed exclusively to promote improved living standards to the inhabitants of the Belmonte Island. Implementation of the PROARQUIPÉLAGO Program would, therefore, fulfill the requirements of Article 121(3) and grant Brazil full entitlement to a 200-mile EEZ around the Archipelago, an entitlement which has gone unprotested since the Program’s inception in 1996. Besides, as already stressed by specialized Law of the Sea scholarship, a strict application of UNCLOS Article 121(3) would accord many islands solely a territorial sea and a contiguous zone, including the Jan Mayen Island, the Russian islands of Henrietta and Jeannette, the Heard and McDonald Islands, Bouvet Island, Clipperton Island, Troumelin Island, Jabal al-Tair Island, Okinotorishima, most of the Spratly Islands and Paracel, among others.59 That has not been the case up to now, and there seems to be no reason why such a strict treatment should be expected from Brazil. Concerning the second question, the Brazilian context differs significantly from the Chinese initiative to “construct” islands out of high-lying coral reefs and sandbars, in a region strategically relevant for global trade and marked by maritime border disputes. First, Brazil did not invest substantial human modification so as to alter the essential geographic characteristics of the rocks in question, as China has been repeatedly doing.60 The islands of the São Pedro and São Paulo Archipelago were not artificially constructed but inhabited. Secondly, the region surrounding the ASPSP is not nearly as delicate (from a political, military and economic perspective) as the South China Sea: no maritime boundary dispute exists in the vicinity of the Archipelago; Brazilian sovereignty over the islands is undisputed; and the region enjoys but an infinitesimal fraction of shipping business compared to the South China Sea. Faced with the recent judgment, the Brazilian position is not a priori shielded from criticisms, in particular with regard to the requirement of “sustaining human habitation” and after the recent jurisprudential update on the matter. However, as discussed above, the wording of Article 121(3) is full of obscurities, the travaux préparatoires do little to clarify them, and the SCS arbitral award applies to a very specific geographical and political context, which does not nearly resemble that of

59

Elferink (2016), p. 7. South China Sea arbitral award, para. 562, on the Cuarteron Reef, in which the arbitrators decide that “While China has constructed an installation and engaged in significant reclamation work at Cuarteron Reef, this is only possible through dredging and the elevation of the portion of the reef platform that submerges at high tide”. The Tribunal also found that China engaged in land reclamation activities in the Fiery Cross Reef (para. 564), and the Gaven Reef (para. 568). Finally, the arbitral award was clear in that “a rock cannot be transformed into a fully entitled island through land reclamation” (para. 508). 60

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the ASPSP. If one embraces a purely teleological interpretation of Article 121, Brazil could be accused of being “territorialist”61 and creeping on jurisdiction, so as to argue that if every islet were able to generate extensive maritime spaces, common spaces would be reduced, humanity would be threatened, and therefore the object and purpose of the Convention would be compromised.62 Such an argument, regardless of how well-intentioned (and noting that it could and will make sense in specific cases), must be analysed casuistically, at the risk of equating rocky islands to barren rocks that merely emerge constantly out of water. In International Law, no activity is as arbitrary as defining the telos of a treaty given that a great deal of preconceptions is likely to influence the analyser. In other words, to assert that the outstanding telos of the UNCLOS in respect of islands was to maximize common areas of the ocean is a biased way of looking at the objectives of the Convention. In such an analysis, one also ought to take into account that power struggles informed the Third Conference and the Convention itself, thus favouring the enlargement of maritime spaces under national jurisdiction as never before. That occurred, however, in a conditioned and principled manner. The Convention’s package deal approach shows how delegates had to handle divergent interests. To draw a single purpose out of such divergence would be, to say the least, arbitrary. Were it not for the struggle of “territorialists”, the current regime of the EEZ and the (extended) continental shelf would have been unimaginable. These spaces are undoubtedly one of the great victories of coastal nations, many developing, which have crafted an overall fairer international public oceanic order. That some countries may individually take domestic measures that breach the Convention and cause widespread censure by the international community, as seems to be the case in the SCS disputes, one must count with that. Yet, such isolated and punctual violations must not inform the actions and claims of every other State in other parts of the world. Moreover, that the common heritage of mankind may not be as large as it could be, following the proclamation of EEZs around islands worldwide, is a result of the package deal agreed in the Third Conference, in which coastal States were considered increased jurisdiction seawards.63 Should the drafters of the Convention have The term “territorialist” comes between inverted comas, so as to highlight that the authors are not comfortable with a label which has been frequently employed to portray all national jurisdictional assertions seaward as inherently nefarious to the ordre publique océanique, regardless of context or the justification provided. For more on that position, see Ventura (2018), pp. 166–168. 62 The argument according to which islands with EEZs and continental shelves would shorten the common heritage of mankind was first forwarded by Tommy Koh, the father of the famous expression “Constitution of the oceans”. According to Koh, “it would be unjust, and the common heritage of mankind would be further diminished, if every island, irrespective of its characteristics, was automatically entitled to claim a uniform economic zone”. See “Summary Records of Meetings of the Second Committee, 39th Meeting,” UN Doc. A/CONF.62/C.2/SR.39 p. 285, para. 72 (14 August 1974) (Statement of the Representative of Singapore). 63 Note only that there is no “shrinkage” of the Area in sight, as the legal construct of the common heritage of mankind and the right to an EEZ and (extended) continental shelf emerge to the legal world simultaneously. As a matter of logics, coastal States with islands cannot be haunted for 61

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meant stricter rules for granting an EEZ and continental shelf to islands, more specific criteria would have been approved, such as the size of the feature, minimum number of persons inhabiting it, time-frame separating “habitation” from presence, biodiversity quota on-ground, ability to host human infrastructure (such as houses, ports, power plants etc.), among others. Since that was not the case, it can be said that the Brazilian interpretation, even if taken as an expression of territorialism in the Law of the Sea, reveals coherence with the history of Brazilian stances and reasonableness, as the country’s assertions over the ASPSP abide by the general wording of UNCLOS Article 121(2), not having thus far threatened the freedoms of the high seas of other States in the claimed areas. While one may challenge whether Brazil has successfully adjusted the Belmonte Island to the UNCLOS requirements and conditions, rendering it capable of sustaining some sort of human habitation, the fact is that no State has protested Brazil’s claims of an EEZ and continental shelf around the Archipelago. Given the Convention’s vagueness on the topic of “sustaining habitation”, and arbitral award’s context-specific nature, it could not be ruled out a priori that a country be entitled to extended maritime spaces from rocky formations that satisfy, albeit not in the clearest possible way, the requirements fixed at Article 121(3). The situation is blurred and would have created much greater trauma, should it have been located in geopolitically sensitive regions. Along these lines, once the exception contained in Article 121(3) has been excluded from the equation, a coastal State is entitled to the sovereign rights enlisted in Article 56 of UNCLOS, namely to explore, exploit, manage and conserve marine natural resources. Under the rights prescribed at Article 56, concerning functional jurisdiction on the EEZ, and certain of the Archipelago’s status as an island pursuant to the Convention, Brazil has opted for the creation of a massive marine protected area within the Archipelago’s entire EEZ.64 Decree n. 9.313/2018 established a Marine Protected Area (APA, in Portuguese, área de proteção ambiental) and a Natural Monument (MONA, in Portuguese, monumento natural) within the EEZ of the São Pedro and São Paulo Archipelago.65 The APA comprises an area of 40,705,236 hectares within the radius of 200 nm around the archipelago,66 and allows for a sustainable use of the region.67 The MONA covers an area of

diminishing an area that has technically belonged to them by means of sovereignty over the islands, in pursuance of the Convention and to the decades old, internationally accepted doctrine of “land dominates the sea”. 64 Executive Decree 9.313, March 19, 2018. 65 The measures were taken in accordance with the National System of Conservation Units, instituted by Federal Act 9.985, 18 July 2000, which provides for the categories of the Natural Monument as a Unit for Integral Protection and for the Environmental Protection Area as a Sustainable Use Unit. 66 Art. 2 (1). Decree 9.313, note 64 supra. 67 The specificities of “sustainable use” are found in Article 4 of the Decree.

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4,326,718 ha68 and aims at full environmental protection, but excluded the main islands of the Archipelago,69 which are precisely the richest in biodiversity.70 In advancing its assertion over the EEZ around the Archipelago, Brazil has thus shown yet another merit; namely, that of striving for the preservation and conservation of the marine environment, advancing an interest of the international community as a whole. Upon the designation of the protected areas, Brazil now complies with Goal 11 of the Aichi Targets, which requires a minimum of 10% of the national marine areas under some sort of legal protection.71 The EEZ around the Archipelago corresponds to 15% of the Brazilian EEZ, approximately 10% of the country’s marine area, and 6% of its land territory. Seen from this perspective, the islands and the PROARQUIPÉLAGO Program are pivotal, both to the national policy of promoting awareness to the need of protecting the “Blue Amazon”, as well as to the promotion of enhanced knowledge and the sustainable management of Brazilian oceanic resources.

6 Concluding Remarks Back to the initial question that prompted this contribution, regarding whether in light of the recent understandings espoused by the Arbitral Tribunal in the SCS Arbitration, concerning the definition of “island”, one could regard the PROARQUIPÉLAGO Program as a demonstration of unfounded territorialism in the sea: the answer is negative. The application of UNCLOS Article 121 is extremely complex, as there is an abundance of possible interpretations on the meaning of each phrase in that provision, which can lead to different conclusions. Due to the vagueness of the UNCLOS islands’ regime and the political and strategic sensitivity of islands to every State in the world, countries’ understandings and practices turn out to be heterogeneous. Thus suggesting that the application of Article 121 ought to

68

Art. 2 (2). Decree 9.313. Art. 2 (1). Decree 9313. 70 The islands form the most isolated tropical archipelago on the planet. Because of its isolation, it has a huge concentration of endemic and endangered species. For more information, see VIANA et al. (2009), p. 249. For that reason, the Decree has been targeted by domestic criticism, i.e. for allowing for several uses of the area via designation of an Environmental Production Area—APA (which are usually softer than other sorts of protected zones under Brazilian legislation, according to the Brazilian Act on Nature Conservation Units, 9.985, 18 July 2000.), as well as for not adequately promoting the conservation of biodiversity and rare or fragile ecosystems in the islands’ environment. It escapes, however, the purpose of this chapter to dive into such detail. 71 In the midst of the tenth Conference of the Parties to the Convention on Biological Diversity, the Aichi Targets were established, including “Target 11: By 2020, at least 17 per cent of terrestrial and inland water areas and 10 per cent of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative and well-connected systems of protected areas and other effective area-based conservation measures, and integrated into the wider landscape and seascape.” 69

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be carried out on a case-by-case basis, on the grounds of equity and taking into account all the relevant circumstances of a concrete scenario. Analysing specifically the case of Brazil, some distinguishing circumstances stand out: (i) it is not reasonable to expect or demand from the country a behaviour that no other State displays; (ii) in the official languages of the Convention, there is enough interpretative margin to defend the application of Article 121(2) to the Belmonte Island, even if such application should be questioned by other States or by legal scholarship, which does not seem to be the case thus far; (iii) Brazil is not involved in maritime boundary disputes surrounding the Archipelago (the 200-mile zone included)72; (iv) Brazil has been increasingly engaged in the devise of environmental protection policies for that region, achieving considerable geopolitical influence in the South Atlantic through cooperation with other coastal States; and finally, (v) if the situation changes in such a way that the status of Belmonte as an island entitled to an EEZ and continental shelf is legally questioned, Brazilian State practice should offer grounds for reaffirming such status. The stance adopted by Brazil is not a “jurisdictional crept” and is consistent with the country’s historical efforts to apply environmental and scientifically friendly measures to waters under national jurisdiction.

References Centro de Excelência para o Mar Brasileiro (CEMBRA) (2012) O Brasil e o mar no século XXI: Relatório aos tomadores de decisão do País, 2nd edn. BHMN, Rio de Janeiro Charney JI (1999) Rocks that cannot sustain human habitation. Am J Int Law 93(4):863–878 Elferink AO (2016) The South China Sea Arbitration’s Interpretation of Article 121(3) of the LOSC: A Disquieting First. JCLOS Blog. Available via http://site.uit.no/jclos/files/2016/09/ The-South-China-Sea-Arbitrations-Interpretation-of-Article-1213-of-the-LOSC-A-Disquiet ing-First.pdf Franckx E (2014) The regime of islands and rocks. In: Attard D, Fitzmaurice M, Gutiérrez N (eds) The IMLI manual on international maritime law, volume I, the law of the sea. Oxford University Press, Oxford, pp 99–124 García-Amador FV (1974) The Latin American contribution to the development of the law of the sea. Am J Int Law 68(33):33–50 Goldsmith J, Posner E (2005) The limits of international law. Oxford University Press, Oxford Jayakumar S, Koh T, Beckman R (2014) The South China sea disputes and the law of the sea. Edward Elgar, Cheltenham Kraska J (2011) Maritime power and the law of the sea. Oxford University Press, Oxford Kwiatkowska B (1991) Creeping jurisdiction beyond 200 miles in the light of the 1982 law of the sea convention and state practice. Ocean Dev Int Law 22(2):153–187 Kwiatkowska B, Soons A (1990) Entitlement to maritime areas of rocks which cannot sustain human habitation or economic life of their own. Neth Yearb Int Law:139–151

72 In fact, all post-UNCLOS disputes concerning the regime of islands deal at some point with maritime delimitation, except in the case of the South China Sea. After all, Beijing had made an exception in line with Part XV, Section III of UNCLOS regarding jurisdiction over maritime boundary disputes.

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Longo AR (2014) Em busca do consenso: Terceira Conferência das Nações Unidas sobre o Direito do Mar. SECIRM, Brasília More RF (2012) Reflexões sobre a formação de um pensamento oceanopolítico brasileiro. In: More RF, Júnior IB (eds) Amazônia Azul: Política, Estratégia e Direito para o Oceano do Brasil. FEMAR, Rio de Janeiro, pp 232–248 Rangel VM (1973) Brazilian law of the sea. Revista de Direito da Universidade de São Paulo, pp 71–89 Song YH (2010) The application of article 121 of the law of the sea convention to the selected geographical features situated in the Pacific Ocean. Chin J Int Law 9:663–698 Talmon S (2017) Article 121. In: Proelss A (ed) United Nations convention on the law of the sea: a commentary. C.H. Beck, Hart, Nomos, Munich, pp 858–880 Vargas J (1982) A. Latin America and its contributions to the law of the sea. In: Laursen F (ed) Towards a new international marine order. Nijhoff, Leiden Ventura VAMF (2018) Revisiting the critique against territorialism in the law of the sea: Brazilian state practice in light of the concepts of creeping jurisdiction and Spoliative jurisdiction. Braz J Int Law 15(1):160–178 Viana DL, Hazin FHV, Moraes FC, Soares J, Oliveira JEL, Freitas JC, Macedo SJ, Costa TF (eds) (2009) O Arquipélago de São Pedro e São Paulo: 10 anos de Estação Científica. SECIRM, Brasília

Victor Alencar Mayer Feitosa Ventura Head of Legal Office of the state-level Environmental Management Agency of Paraiba, Brazil. PhD in public international law (Universität Hamburg) and LLM in human rights, with emphasis on international environmental law (Federal University of Paraíba—UFPB). Served in the capacity of Legal Assistant to the International Tribunal for the Law of the Sea (ITLOS). Lecturer of international maritime law at the Universität Hamburg from 2017 to 2018. Currently member of the Centre for Political and Strategic Studies of the Brazilian Navy (CEPE-MB), and member of the Brazilian Institute for the Law of the Sea (BILOS). Eduardo Cavalcanti Mello Filho Law student at the Federal University of Paraíba. Researcher at the Centro de Estudos em Direito do Mar ‘Vicente Marotta Rangel’, University of São Paulo (CEDMAR-USP). Intern at the Brazilian Institute for the Law of the Sea (BILOS).

Chapter 16

Implementing the Law of the Sea: Russia and Arbitrations Under Annex VII to UNCLOS Grant Kynaston and Rebecca Brown

Abstract On 16 September 2016, Ukraine instituted arbitral proceedings against the Russian Federation (‘Russia’) under Annex VII to the 1982 United Nations Convention on the Law of the Sea (‘UNCLOS’), alleging violations of its coastal State rights in the Black Sea, the Sea of Azov, and Kerch Strait. Russia has subsequently appointed an arbitrator, sent a delegation to The Hague, and submitted its Preliminary Objections. This marks a dramatic shift in Russia’s recent relationship with interstate arbitration under UNCLOS. Most notably, in late 2013, Russia refused to participate in the arbitration instituted by the Netherlands concerning the Arctic Sunrise, and has made no indication it will comply with the Award on Compensation in the Netherlands’ favour. This chapter compares Russia’s approach in these two cases. First, it addresses its non-participation, contextualising it against Russia’s prior experiences in international dispute resolution processes, and considers the objections that Russia tends to raise against jurisdiction. Second, this chapter analyses how maritime legal considerations interplay with Russia’s posture in international politics, and discusses how each case’s context affected Russia’s response. The authors conclude that Russia’s relationship with the law of the sea is an increasingly important consideration in its political calculus. Russia tends to frame its activities as consistent with the law of the sea and relevant dispute resolution mechanisms, and increased compliance by such a major State promotes the continued effectiveness of the law of the sea.

The authors would like to thank Dr Alison Pert and Professor Tim Stephens, for supporting the authors’ intensive study in this area at the University of Sydney. All translations from Russian and Ukrainian are the authors’ own, as are all mistakes and omissions. G. Kynaston Faculty of Classics, University of Cambridge, Cambridge, UK e-mail: [email protected] R. Brown (*) Faculty of Law, University of Cambridge, Cambridge, UK e-mail: [email protected] © Springer Nature Switzerland AG 2020 M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea, https://doi.org/10.1007/978-3-030-42671-2_16

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1 Introduction Between 2016 and 2017, the Russian Federation (‘Russia’) was in the curious position of being Respondent in two separate interstate arbitrations instituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea (‘UNCLOS’).1 The first, instituted by the Netherlands on 4 October 2013, concerned Russia’s seizure of the Arctic Sunrise—a Greenpeace vessel protesting a Russian oil platform, the Prirazlomnaya, while flying the Dutch flag—and the arrest of its crew, in Russia’s exclusive economic zone (‘EEZ’).2 In advance of that tribunal’s Award on Compensation on 10 July 2017,3 Ukraine instituted separate proceedings against Russia on 16 September 2016, alleging violations of its coastal State rights in the Black Sea, the Sea of Azov, and Kerch Strait, particularly in relation to Russia’s exploitation of various gas fields.4 This chapter analyses Russia’s relationship with the international law of the sea, using the two recent arbitrations as case studies. It suggests that Russia aims to balance an underlying desire to appear as a compliant international citizen with its reluctance towards formal legal process. This chapter considers two stages of Russia’s engagement with these processes. First, at the stage of participation, Russia’s refusal to appear in the Arctic Sunrise arbitration is contrasted with its apparent acquiescence to the process in the Ukraine v. Russia arbitration. Nonetheless, while Russia does tend to participate in interstate proceedings, it routinely objects to tribunal jurisdiction, and its reliance on similar objections in the Ukraine v. Russia arbitration marks a return to its earlier practice.5 Second, the stage of compliance concerns Russia’s engagement with international politics, and thereby with international law. Russia regularly accedes to the law of the sea where doing so aligns—or at least, does not conflict—with its broader international political positioning. Overall, Russia’s conduct connotes positive future outcomes for the implementation of the law of the sea: international law is often effective at ensuring Russia’s participation in, and compliance with, international legal determinations, despite apparent opposition. However, as long as this alignment remains discretionary, and contingent upon Russia’s international political context, international law cannot be said to compel Russia’s compliance. 1

United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982, in force 16 November 1994) 1833 UNTS 396, Annex VII (‘UNCLOS’). 2 Arbitral Tribunal, PCA Case No 2014-02 The Arctic Sunrise Arbitration (Netherlands v. Russia), Rules of Procedure of 17 March 2014, Preamble para. 7, Article 3 (‘Arctic Sunrise (Rules of Procedure)’). 3 Arbitral Tribunal, PCA Case No 2014-02 The Arctic Sunrise Arbitration (Netherlands v. Russia), Award on Compensation of 10 July 2017 (‘Arctic Sunrise (Compensation)’). 4 Arbitral Tribunal, PCA Case No 2017-06 Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation), Rules of Procedure of 18 May 2017, Article 3 (‘Ukraine v. Russia (Rules of Procedure)’). 5 Arbitral Tribunal, PCA Case No 2017-06 Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation), Procedural Order No. 3 (Bifurcation) of 20 August 2018 (‘Ukraine v. Russia (Procedural Order No 3)’).

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2 Russia’s Historical Participation in International Dispute Resolution Russia’s recent history of participation in disputes—involving maritime law or otherwise—connotes an unusual international subject. On the one hand, Russia tends to participate in, and contribute to, proceedings. On the other, it has historically objected to the decision-making body’s jurisdiction in interstate disputes. These objections follow similar themes: that non-legal alternatives exist for resolving disputes, and that the specific issues are not justiciable by the given body.

2.1

The International Court of Justice

Russia has been party to two cases before the International Court of Justice (‘ICJ’). Both of these cases were instituted unilaterally against Russia, and both concerned alleged violations of treaties to which Russia is party. In addition, several cases were instituted against the USSR by the United States,6 although these were discontinued by the ICJ for want of jurisdiction.

2.1.1

Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russia)7

On 12 August 2008, Georgia instituted proceedings against Russia in the ICJ for breaches of the International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’), under that treaty’s dispute resolution clause.8 This matter concerned Russian interventions in South Ossetia and Abkhazia, including the alleged expulsion of ethnic Georgians.9 Russia objected to the Court’s jurisdiction at the provisional measures stage of proceedings, submitting that there was no dispute between the parties.10 Russia relied on three grounds: first, that CERD had not been breached11; second, that the

6 See, e.g., Aerial Incident of 7 November 1954 (United States of America v. Union of Soviet Socialist Republics) [1959] ICJ Rep 276. 7 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russia) (Preliminary Objections) [2011] ICJ Rep 70 (‘Racial Discrimination (Preliminary Objections)’). 8 International Convention on the Elimination of All Forms of Racial Discrimination (New York, 21 December 1965, in force 4 January 1969) 660 UNTS, Art. 22 (‘CERD’). 9 Racial Discrimination (Preliminary Objections), para. 16. 10 Racial Discrimination (Preliminary Objections), Verbatim Record of 8 September 2008, paras. 7–8 (Kolodkin). 11 Ibid.

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actual ‘dispute’ concerned alleged breaches of international humanitarian law, which was beyond CERD’s scope12; and third, that Georgia had not complied with prior dispute resolution processes required under the Convention.13 In the second round of oral submissions, Russia additionally argued that the requirements for granting provisional measures were not met.14 The Court indicated provisional measures against Russia,15 distinguishing its finding of jurisdiction for this purpose—for which a prima facie basis sufficed—from a finding on the merits.16 Russia raised similar objections to the Court’s jurisdiction to hear the dispute,17 concentrating on the absence of a dispute, as Georgia had not previously raised the issue of racial discrimination to Russia.18 The lack of communication supported Russia’s objection that the procedural conditions requiring negotiations were not met.19 It was on this ground that the Court held it lacked jurisdiction.20

2.1.2

Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russia)21

The second dispute in the ICJ was instituted unilaterally by Ukraine on 16 January 2017.22 Here the claim concerned alleged breaches of two human rights conventions in the context of alleged acts of terrorism in Ukraine, particularly in Crimea: CERD, and the International Convention for the Suppression of the Financing of Terrorism (‘ICSFT’),23 through dispute resolution mechanisms under those conventions.

12

Id., para. 21. Id., para. 25. See CERD, Art. 11. 14 Racial Discrimination (Preliminary Objections), Verbatim Record of 10 September 2008, paras. 35–36 (Kolodkin). 15 Racial Discrimination (Provisional Measures) [2008] ICJ Rep 353, para. 149 (‘Racial Discrimination (Provisional Measures)’). 16 Id., para. 85. 17 Racial Discrimination (Preliminary Objections), Memorial of the Russian Federation of 1 December 2009. 18 Id., Chapter III. 19 Id., Chapter IV. 20 Racial Discrimination (Preliminary Objections), para. 180. 21 Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russia) (Provisional Measures) [2017] ICJ Rep 104 (‘Application of CERD and ICSFT (Provisional Measures)’). 22 Id., Application Instituting Proceedings of 16 January 2017. 23 International Convention for the Suppression of the Financing of Terrorism (New York, 9 December 1999, in force 10 April 2002) 2178 UNTS 197 (‘ICSFT’). 13

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As in the Racial Discrimination case, Russia participated in the provisional measures stage of the proceedings,24 and had exchanged notes verbales with Ukraine.25 It maintained that it had complied with its obligations under the conventions.26 Further, it claimed that the alleged acts could not be classified as ‘terrorism’, and so the ICSFT, which protects only specific rights, could not establish jurisdiction.27 As in Racial Discrimination, therefore, Russia’s objection to provisional measures acknowledged improper conduct, yet contested jurisdiction on the basis that such conduct did not fall within the relevant conventions. Here, Russian claimed that Ukraine was instead using the conventions to seek a declaration on the purported use of force,28 or else on the status of Crimea.29 Further similarities to Racial Discrimination arise in Russia’s claim that the conventions’ dispute resolution procedures were not fulfilled.30 Russia’s hesitancy towards legal dispute resolution is evidenced in its statement that Ukraine had deliberately avoided negotiating in order to bring Russia to the ICJ.31 Alternatively, Russia argued that conditions for the grant of provisional measures were not fulfilled.32 The Court, however, found prima facie jurisdiction33 and ordered provisional measures against Russia.34 Ukraine later alleged that Russia had not complied with the order.35 The content of Russia’s objections in the merits stage will only be known once the case progresses: Ukraine’s memorial on the merits was to be filed by 12 June 2018, although there is not yet an indication of its claims, and Russia’s counter-memorial must be filed by 12 July 2019.36 It thus remains to be seen whether Russia will dispute the ICJ’s jurisdiction on the merits, and the content of this objection. What is notable, however, is Russia’s reliance in both this case and Racial Discrimination on the requirement that the appropriate dispute resolution procedure under each Convention be followed, including where arbitration is the condition precedent. This demonstrates a willingness to engage in some resolution processes, but a reticence for adjudication by the ICJ. 24

Application of CERD and ICSFT (Provisional Measures), para. 13. Application of CERD and ICSFT (Provisional Measures), Verbatim Record of 7 March 2017, para. 12 (Forteau). 26 Id., para. 20 (Kolodkin). 27 Id., paras. 2, 4 (Rogachev). See CERD Art. 2. 28 Id., para. 3 (Kolodkin). 29 Id., paras. 4, 17 (Lukiyantsev). 30 Id., paras. 21 (Rogachev), 56 (Zimmerman), 41 (Lukiyantsev). 31 Ibid. 32 Id., paras. 21 (Forteau), 76–78, 81, 87 (Zimmerman). 33 Application of CERD and ICSFT (Provisional Measures), paras. 31, 39, 62. 34 Id., paras. 99. 35 See, e.g., Ministry of Foreign Affairs of Ukraine, Press Release of 24 April 2018: https://mfa.gov. ua/en/news/8712-zajava-ministerstva-zakordonnih-sprav-ukrajini-shhodo-zvernennya-ukrajini-domizhnarodnogo-sudu-oon-stosovno-tlumachennya-nakazu-sudu-pro-zastosuvannya-timchasovihzahodiv-proti-rosijsyk. 36 Application of CERD and ICSFT (Order on the Fixing of Time-limits) [2017] ICJ Rep 228. 25

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The International Tribunal for the Law of the Sea

Russia similarly participates in disputes brought before the International Tribunal for the Law of the Sea (‘ITLOS’), and has brought a claim itself.37 As Respondent, Russia maintains objections to the tribunal’s jurisdiction; however, its objections are focused less on the nature of the claim, and more on compliance with the Convention’s requirements. In each of the two claims Japan brought against Russia in July 2007—the Hoshinmaru,38 and the Tomimaru39—Russia contested the merits of Japan’s allegations, and disputed the admissibility of the dispute to ITLOS.40 In both matters, Russia submitted that proceedings for prompt release were unnecessary following its posting of an allegedly reasonable bond41; and that the vagueness of Japan’s application—for release on ‘terms and conditions the Tribunal shall consider reasonable’—set it outside the dispute resolution procedure under Article 292 of UNCLOS, and beyond the tribunal’s competence.42 Further, concerning the Tomimaru, Russia disputed the use of the prompt release mechanism, claiming the vessel was confiscated, and therefore outside the tribunal’s jurisdiction.43 These objections are more substantive than those made before the ICJ: they concern not whether the nature of the issues falls under the Convention, but rather the tribunal’s ability to determine them.

2.3

Other Disputes

Despite its involvement in organisations that provide for trade dispute mechanisms, such as the World Trade Organisation and the European Commission, Russia has been reticent to engage these mechanisms. Rather, it tends to avoid formal processes, resolving the matter politically.44 Similarly, although Russia is party to a number of bilateral investment treaties (‘BITs’) that provide for formal dispute resolution,45

ITLOS, Case No. 11 The “Volga” Case (Russia v. Australia), Judgment of 23 December 2002. ITLOS, Case No. 14 The “Hoshinmaru” Case (Japan v. Russia), Judgment of 6 August 2007 (‘Hoshinmaru’). 39 ITLOS, Case No. 15 The “Tomimaru” Case (Japan v. Russia), Judgment of 6 August 2007 (‘Tomimaru’). 40 Hoshinmaru, Statement in Response of 15 July 2007, para. 3 (‘Hoshinmaru, Response’); Tomimaru, Statement in Response of 17 July 2007, para. 3 (‘Tomimaru, Response’). 41 Hoshinmaru, Response, para. 30; Tomimaru, Response, para. 34. 42 Hoshinmaru, Response, paras. 36, 39; Tomimaru, Response, para. 47. 43 Tomimaru, Response, para. 43. 44 Schewe (2013), p. 1185; Jordan (2017), p. 461. 45 UNCTAD, Investment Policy Hub (2018): https://investmentpolicyhub.unctad.org/IIA/ CountryBits/175. 37 38

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these tend to limit tribunal jurisdiction to disputes over compensation.46 This limits investors’ capacity to initiate substantive claims against Russia.47 In arbitrations registered in the Permanent Court of Arbitration, on the other hand, Russia consistently does not appoint representatives, stating that it ‘does not recognize the jurisdiction of an international tribunal at the Permanent Court of Arbitration’.48 A considerable number of cases have been brought against Russia under the European Convention on Human Rights.49 In response, Russia has opposed its jurisprudence and alleged an ‘anti-Russian bias’.50 Indeed, its parliament has passed legislation,51 and its courts handed down judgments,52 permitting Russia’s non-compliance with otherwise binding judgments of the European Court of Human Rights (‘ECtHR’) where these are contrary to the Russian Constitution.53 In cases still pending, Russia has complied with ordered measures in only 28% of the 112 cases brought against it,54 although compensation is often paid.55 Notably, Russia is just as compliant as other States.56 However, Russia’s willingness to appear compliant—here, through paying compensation—while refraining from changing its behaviour, is a recurrent theme. Moreover, it is increasingly ambivalent towards the ECtHR.57 Notably, in its 2017 judgment,58 the Russian Constitutional Court held that Russia was not required to comply with the order in the Yukos case.59

46

Gadelshina (2011). See, e.g., Arbitral Tribunal, SCC Case No V079/2005 RosInvestCo UK Ltd v. Russia, Award on Jurisdiction of October 2007. 48 See, e.g., Arbitral Tribunal, PCA Case No 2015-36 Everest Estate LLC et al v. Russia; Arbitral Tribunal, PCA Case No 2015-34 PJSC Ukrnafta v. Russia. 49 Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950, in force 3 September 1953) 213 UNTS 221 (‘ECHR’). See European Court of Human Rights, ‘Case-law References’ (31 January 2019): https://www.echr.coe.int/Documents/Case_law_refer ences_ENG.pdf. 50 Mälksoo (2012), p. 365. 51 Federal Law No 7-FKZ (Russian Federation), 14 December 2015. 52 Konstitucionnyj Sud Rossijskoj Federacii, No 21-П/2015, 14 July 2015. 53 See, e.g., Konstitucionnyj Sud Rossijskoj Federacii, No 1-П/2017, 19 January 2017, p. 24: ‘. . .[following the judgment] would mean, in essence, not only suspension of the effect of Article 57 of the Constitution of the Russian Federation, but also violation of the principles of equality and justice following from its Articles.’ 54 See Hillebrecht (2014), p. 1111. 55 Mälksoo (2012), p. 362. 56 Benedek (2017), p. 398. 57 Id., p. 389. 58 Konstitucionnyj Sud Rossijskoj Federacii, No 1-П/2017, 19 January 2017. 59 ECtHR, Case of Oao Neftyanaya Kompaniya Yukos v. Russia, Award on Just Satisfaction of 15 December 2014. 47

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3 Issues of Jurisdiction in Arbitrations Under UNCLOS Annex VII 3.1

Issues of Jurisdiction in Arctic Sunrise

Fifteen days after Russian authorities seized and detained the Arctic Sunrise and its crew, the Netherlands issued a request for arbitration under Annex VII to UNCLOS.60 This followed ‘repeated’ requests by the Netherlands to release the vessel and crew,61 and Russia’s sending of notes verbales62 and a letter expressing an intent to conduct investigations.63 These formed the basis of what the Netherlands considered an arbitrable dispute. In its request for arbitration,64 the Netherlands alleged violations of UNCLOS, the International Covenant on Civil and Political Rights (‘ICCPR’),65 and customary international law.66 It further applied to ITLOS for provisional measures,67 and a hearing was set for 6 November 2013.68 Russia opposed the arbitration in a note verbale of 22 October 2013,69 relying on its declaration upon ratification of UNCLOS in 1997,70 which excludes ‘disputes concerning law-enforcement activities in regard to the exercise of sovereign rights or jurisdiction.’71 This remained Russia’s sole ground of opposition in this dispute, repeated in its note verbale of 27 February 2014.72 Russia did not participate in

60 Arbitral Tribunal, PCA Case No 2014-02 The Arctic Sunrise Arbitration (Netherlands v. Russia), Submission of Dispute to Arbitration of 4 October 2013 (‘Arctic Sunrise, Submission of Dispute to Arbitration’). 61 Id., para. 6. 62 Id., Annex 2, 7. 63 Id., Annex 5. 64 Ibid. 65 International Covenant on Civil and Political Rights (New York, 16 December 1966, in force 23 March 1976) 999 UNTS 171. 66 Arctic Sunrise, Submission of Dispute to Arbitration, para. 4. 67 ITLOS, Case No. 22 The “Arctic Sunrise” Case (Netherlands v. Russia), Request for Provisional Measures of 21 October 2013. 68 ITLOS, Case No. 22 The “Arctic Sunrise” Case (Netherlands v. Russia), Award on Provisional Measures of 25 October 2013 (‘Arctic Sunrise (Provisional Measures)’). 69 ITLOS, Case No. 22 The “Arctic Sunrise” Case (Netherlands v. Russia), Note Verbale of the Embassy of the Russian Federation in Germany of 22 October 2013: https://www.itlos.org/ fileadmin/itlos/documents/cases/case_no.22/Note_verbale_Russian_Federation_eng.pdf (‘Note Verbale (22 October 2013)’). 70 Declaration of the Russian Federation on signature of the United Nations Convention (10 December 1982): http://www.un.org/depts/los/convention_agreements/convention_declara tions.htm (‘Russia, Declaration to UNCLOS’). 71 Note Verbale (22 October 2013). 72 Arbitral Tribunal, PCA Case No 2014-02 The Arctic Sunrise Arbitration (Netherlands v. Russia), Note Verbale from the Russian Federation to the PCA of 27 February 2014: https://pcacases.com/ web/sendAttach/1315 (‘Note Verbale (27 February 2014)’).

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either the request for provisional measures heard by ITLOS, nor in the merits determined by a tribunal constituted under Annex VII to UNCLOS. It neither appointed an arbitrator nor raised further objections after the Annex VII tribunal’s finding of jurisdiction.73 Rather, it reiterated its refusal to participate or provide submissions on either procedural matters or the substance of the dispute.74 Its actions, and its reliance on a single ground against jurisdiction, differ from its prior practice, in a situation where its usual approaches—such as claiming that the nature of the dispute was outside the Convention, or that requirements for negotiation were not satisfied—remained available.

3.1.1

Declarations as a Ground of Exclusion

UNCLOS allows States to exclude certain disputes from the compulsory dispute resolution mechanisms of the Convention through declarations.75 The balance between an effective dispute resolution mechanism, and the ability to refuse it, was essential to States’ acceptance of the Convention’s provisions and the process’ legitimacy.76 Russia relied in its note verbale on its declaration made under Article 298(1)(b) of UNCLOS. This Article permits declarations on77: . . .disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3.

The Netherlands pre-emptively disputed this claim in its submission to arbitration.78 First, it submitted that the ability to make declarations excluding the compulsory dispute resolution process under Article 298 of UNCLOS was limited to certain categories of dispute, per Article 297(2) and (3): the declaration excluding disputes on law-enforcement activities could only apply in respect of marine scientific research and fisheries.79 The tribunal accepted the Netherlands’ submission, stating that ‘Russia’s Declaration can only apply to an exception that is permitted under Article 298’80; the declaration thus did not limit the proceedings’ scope. Russia’s reliance on the declaration alone is therefore curious: even though there

73 Arbitral Tribunal, PCA Case No 2014-02 The Arctic Sunrise Arbitration (Netherlands v. Russia), Award on Jurisdiction of 26 November 2014 (‘Arctic Sunrise (Jurisdiction)’). 74 Note Verbale (27 February 2014). 75 UNCLOS, Art. 298. 76 Arbitral Tribunal, PCA Case No 2013-19 The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China), Award on Jurisdiction of 29 October 2015, para. 107 (‘South China Sea (Jurisdiction)’); Klein (2005), p. 27; Zou and Ye (2017), p. 336. 77 UNCLOS, Art. 298(1)(b). 78 Arctic Sunrise, Submission of Dispute to Arbitration, paras. 8–13. 79 Id., para. 13. See UNCLOS, Art. 297(2), (3). 80 Arctic Sunrise (Jurisdiction), para. 72.

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was no issue as to whether Russia was exercising its jurisdiction in enforcing coastal State laws and regulations, it is clear from the wording of Article 298 that declarations excluding law enforcement relate only to marine scientific research and fisheries.

3.1.2

Another Possible Ground

At least one other ground, however, was open to Russia. A tribunal may find it lacks jurisdiction on the basis that the dispute submitted to it does not concern the interpretation or application of the Convention.81 In the Chagos Island arbitration, for example, in isolating the real issue in the case—a requirement for its jurisdiction82—the tribunal recharacterised the dispute as one concerning sovereignty, rather than the interpretation or application of the term ‘coastal State’.83 The Arctic Sunrise case differs from prior law of the sea disputes involving Russia, as it also involves a human rights claim under the ICCPR.84 As noted above, Russia has previously objected to the relevance, characterisation, and substance of interstate human rights claims.85 Accordingly, Russia’s failure to object to the Netherland’s claim under the ICCPR is unusual, and inconsistent with prior practice. Indeed, such a claim was viable: the arbitral tribunal eventually held that it lacked the jurisdiction to apply the provisions of the ICCPR directly, or determine breaches of such provisions.86

3.1.3

Participation in Provisional Measures

Russia did not provide a written statement responding to the request for provisional measures, nor did it attend the hearing held by ITLOS.87 Further, in its communication to the tribunal on 6 November 2013 opposing Greenpeace International’s petition to file submissions as an amicus curiae,88 it emphasised that ‘this 81

Arbitral Tribunal, PCA Case No. 2012-5 The Republic of Ecuador v. The United States of America, Award of 29 September 2012, para. 208. 82 Nuclear Tests (New Zealand v. France) (Questions of Jurisdiction and Admissibility) [1974] ICJ Rep 457, para. 30. 83 Arbitral Tribunal, PCA Case No 2011-03 Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18 March 2015, para. 212 (‘Chagos Islands’). 84 Arbitral Tribunal, PCA Case No 2014-02 The Arctic Sunrise Arbitration (Netherlands v. Russia), Memorial of the Netherlands of 31 August 2014, paras. 331–340. 85 See Sect. 2.1 above. 86 Arbitral Tribunal, PCA Case No 2014-02 The Arctic Sunrise Arbitration (Netherlands v. Russia), Award on Merits of 14 August 2015, para. 198 (‘Arctic Sunrise (Merits)’). 87 Arctic Sunrise (Jurisdiction), para. 10. Russia informed the tribunal of this fact in its Note Verbale (22 October 2013). 88 Arctic Sunrise (Provisional Measures), para. 19.

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transmission of the Russian position to the tribunal can in no way be interpreted as a form of participation of the Russian Side in the above mentioned case.’89 Notably, non-participation does not of its own accord prevent a party from disputing the tribunal’s jurisdiction,90 and Russia itself has historically participated in proceedings despite its jurisdictional objections.91 Further, grounds existed for Russia to oppose the provisional measures. A tribunal may prescribe only those measures ‘which it considers appropriate under the circumstances’,92 where these are ‘urgent’ and where the tribunal ‘considers that prima facie the tribunal which is to be constituted would have jurisdiction.’93 The requirement of prima facie jurisdiction for provisional measures under UNCLOS is the same as the standard in the ICJ,94 and in both prior ICJ proceedings, Russia opposed provisional measures on this ground.95 It had also previously opposed provisional measures on their merits, disputing, for example, whether the condition of urgency was fulfilled.96 Given Russia’s opposition to the tribunal’s jurisdiction, its lack of participation in the ITLOS proceedings is surprising. Further, one member of ITLOS, Judge Golitsyn, dissented to the order for provisional measures on the basis of jurisdiction,97 arising from the States’ alleged failure to engage in an ‘exchange of views regarding its settlement’,98 as required under Article 283 of UNCLOS. Although there was an exchange of diplomatic notes and correspondence,99 and other discussions,100 prior to the request for provisional measures, these do not necessarily constitute an exchange of views under UNCLOS: the last exchange occurred after the submission to arbitration, and prior exchanges had occurred before Russia presented its grounds for the seizure of the vessel.101 Russia’s failure to raise this objection runs counter to its tendency to object on the basis of insufficient negotiation. Overall, Russia’s preference to resolve disputes through political, rather than legal means was apparent in the Arctic Sunrise matter: it insisted that it was ready ‘to

89

Ibid. Haya de la Torre (Columbia v. Peru) (Judgment) [1951] ICJ Rep 71, p. 78; Chandrasekhara Rao and Khan (2001), section 3.085. 91 See Sect. 2 above. 92 UNCLOS, Art. 290(1). 93 UNCLOS, Art. 290(5). 94 Racial Discrimination (Provisional Measures), para. 85. 95 See Sect. 2.1 above. 96 See, e.g., Racial Discrimination (Provisional Measures), para. 73. 97 Arctic Sunrise (Provisional Measures) (Judge Golitsyn). Judge Kulyk also dissented, focusing on the circumstances in which provisional measures may be ordered, and the range of options ITLOS should have considered. See Arctic Sunrise (Provisional Measures), para. 6, 11 (Judge Kulyk). 98 Arctic Sunrise (Provisional Measures), para. 6 (Judge Golitsyn). 99 Arctic Sunrise (Provisional Measures), para. 73. 100 Id., para. 74. 101 Martin (2014), p. 24. 90

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seek a mutually acceptable solution.’102 However, Russia was disadvantaged by its non-appearance, an approach in contrast to prior behaviour. Instead, Russia’s stance was inferred from its diplomatic communications, legislation, and judicial decisions103; as Judges Wolfrum and Kelly noted, this weakened Russia’s position, as well as the effectiveness of the dispute resolution process.104

3.2

Issues of Jurisdiction in Ukraine v. Russia

The most recent interstate arbitral dispute to which Russia is party is the matter of Ukraine v. Russia. Ukraine instituted proceedings under Annex VII of UNCLOS on 16 September 2016,105 and Russia’s behaviour so far has differed significantly from its conduct in the Arctic Sunrise matter. Here, Russia has appointed an arbitrator and sent a delegation to The Hague,106 attended the first procedural meeting, and undertaken to file its Counter-Memorial by 19 November 2018.107 Of particular relevance is its submission of Preliminary Objections to the tribunal on 21 May 2018.108 Although the particulars of its objections remain unknown at time of writing (September 2018), Russia does intend to object on multiple grounds, confirming its prior practice. Indeed, in addition to Russia’s usual grounds—that the dispute is outside a convention’s scope; that there has been insufficient negotiation; and that Russia’s declaration limits the scope of the tribunal’s jurisdiction109—the matter also raises novel bases.

3.2.1

Declaration to UNCLOS

In its declarations upon signature and ratification to UNCLOS, Russia excluded the compulsory settlement of disputes under the Convention in relation to certain matters, including issues of sea boundary delimitations and historic title.110 Both

102

Note Verbale (22 October 2013). Arctic Sunrise (Provisional Measures), para. 2 (Judge Anderson). 104 Arctic Sunrise (Provisional Measures), para. 5 (Judges Wolfrum and Kelly). 105 Ukraine v. Russia (Rules of Procedure), Article 3. 106 PCA (Ukraine v. Russia), Press Release of 22 May 2017: https://pcacases.com/web/sendAttach/ 2135. 107 Ukraine v. Russia (Rules of Procedure), Article 13(2)(a). 108 Ukraine v. Russia (Procedural Order No 3), p. 2. 109 See Sect. 2 above. 110 Ukraine v. Russia (Procedural Order No 3), p. 2. 103

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have been the subject of disagreement between Ukraine and Russia since the dissolution of the USSR.111 Ukraine’s claims concern violations of its rights, rather than sovereignty over the maritime area per se.112 This raises issues akin to those considered in the South China Sea arbitration: that tribunal held that the Philippines’ submissions on ‘historic rights’ did not fall under China’s exclusion of ‘historic bays or title’ under Article 298 of UNCLOS,113 as these were a distinct concept not covered by the Article.114 As China had not previously claimed sovereignty over the ‘entirety’ of the South China Sea, the issue was properly one of rights, not title.115 Accordingly, Ukraine, in articulating its claim as one concerning rights, may similarly avoid such an exclusion. However, the fine line between rights and title, and the States’ particular circumstances, may allow Russia to object under the declaration. The likelihood of such an objection is higher in light of Russia’s past tendency to rely on the ground that the claim differs from the ‘real’ dispute, and the tribunal thus lacks jurisdiction.116 Moreover, as has been suggested by Schatz and Koval,117 classification of the Sea of Azov as a historic bay may allow Russia to submit that its declaration excludes such a claim. As the approach in the South China Sea arbitration indicates, tribunals constituted under Annex VII tend to limit States’ ability to rely on Article 298 of UNCLOS to exclude jurisdiction. However, different tribunals will bring different approaches to determining the scope of such declarations, and, in light of the lack of consensus on the regime of historic bays and title,118 attempts to assess prospectively the success of such a challenge to jurisdiction are necessarily uncertain.

111

See, e.g., Agreement on Cooperation on the use of the Sea of Azov and the Kerch Strait (Kerch, 24 December 2003), Article 1; Joint Statement by the President of Ukraine and the President of the Russian Federation on the Sea of Azov and the Strait of Kerch (Kerch, 24 December 2003); Joint Statement by the President of Ukraine and the President of the Russian Federation (Crimea, 12 July 2012). 112 PCA (Ukraine v. Russia), Press Release of 31 August 2018: https://pcacases.com/web/ sendAttach/2447 (‘Ukraine v. Russia (Press Release, 31 August 2018)’). 113 South China Sea (Jurisdiction), para. 24. 114 Id., para. 226. 115 Id., para. 227. 116 See Sect. 2.1 above. 117 Schatz and Koval (2018). 118 See, e.g., Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) [1982] ICJ Rep 18, para. 100: ‘The draft convention. . . [does not] contain any detailed provisions on the “regime” of historic waters: there is neither a definition of the concept nor an elaboration of the juridical regime of “historic waters” or “historic bays”.’

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Dispute

The tribunal may need to consider the parties’ underlying territorial dispute before determining Ukraine’s claim. However, the tribunal’s questionable ability to hear territorial claims allows for jurisdictional challenge, and this is the primary ground on which Russia relies.119 The jurisdiction of a tribunal under Annex VII is limited to disputes concerning the interpretation or application of UNCLOS.120 As above, Ukraine’s claims concerning interference with ‘rights’ suggest prima facie that the proceedings fall within this scope. However, Ukraine asserts that these rights arise from its status as coastal State,121 based on Ukrainian sovereignty over Crimea. The underlying dispute, therefore, may concern the legality of Russia’s annexation of Crimea, consideration of which falls outside the UNCLOS regime. The tribunal in the Chagos Island dispute discussed the extent to which a tribunal constituted under UNCLOS could consider incidental matters of territorial sovereignty.122 It held that the claimed violations of Mauritius’ rights over disputed islands, at its essence, involved determining the islands’ sovereignty; this left it without jurisdiction.123 If, however, issues of sovereignty had been only ancillary, the requisite jurisdiction would have subsisted.124 Similarly, the South China Sea arbitration considered whether the Philippines’ submission, that China’s maritime claims in the South China Sea were excessive,125 concerned sovereignty. The tribunal articulated that jurisdiction may be excluded where the tribunal would need to render a decision on sovereignty, ‘either expressly or implicitly’, and where the actual objective of the claim was to advance a position in a dispute over territorial sovereignty.126 Accordingly, it is likely that the territorial dimension of Ukraine’s claim precludes the tribunal’s jurisdiction: determining Ukraine’s rights necessarily requires the tribunal to determine first whether Ukraine is the coastal State of an area subject to longstanding dispute. Alternatively, it would not be unusual for Russia to argue that the real purpose of Ukraine’s action was to gain prejudicial advantage in the sovereignty claim, as it frequently criticises States for alleged mala fide purposes. 119

Ukraine v. Russia (Press Release, 31 August 2018). UNCLOS, Art. 288(1). 121 Ministry of Foreign Affairs of Ukraine, Press Release of 14 September 2016: http://mfa.gov.ua/ en/news-feeds/foreign-offices-news/50813-zajava-mzs-ukrajini-shhodo-porushennyaarbitrazhnogo-provadzhennya-proti-rosijsykoji-federaciji-vidpovidno-do-konvenciji-oon-zmorsykogo-prava (‘Ukraine, Statement on Initiation of Arbitration’). 122 Chagos Islands, para. 221. 123 Ibid. 124 Ibid. 125 Arbitral Tribunal, PCA Case No 2013-19 The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China), Memorial of the Philippines of 30 March 2014, para. 1.7. 126 South China Sea (Jurisdiction), para. 153. 120

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Most pertinently, it has even done so previously in the context of Crimean sovereignty, in the Application of CERD and ICSFT matter.127 On the other hand, tribunals are reticent to expand this ground of objection, as doing so would encourage, and even legitimise, raising ‘disputes’ over territory in order to exclude jurisdiction. In considering Russia’s object, the tribunal may consider the legitimacy of its claim over Crimea, and thus whether a real dispute of sovereignty exists, so as to exclude UNCLOS’ dispute resolution mechanisms.128

3.2.3

Negotiation Between the Parties

A final jurisdictional basis claimed by Russia is that of insufficient negotiation between the parties.129 Once a dispute arises, Article 281(1) of UNCLOS requires some precedent acts indicating attempts to settle the dispute peacefully, before a State may bring its claim.130 Tribunals have differed in their approach to excluding jurisdiction on account of prior negotiation. The majority of tribunals are reticent to do so.131 However, the arbitral tribunal in Southern Bluefin Tuna widened the exception’s scope by permitting other treaties to exclude UNCLOS dispute resolution mechanisms even without an express term.132 This interpretation was expressly opposed by the tribunal in the South China Sea arbitration, which stated that there must be a ‘clear statement of exclusion of further procedures.’133 Further, tribunals construe what constitutes an agreement for the purposes of the article narrowly. In the South China Sea arbitration, the relevant treaty was found not to be an agreement for the purposes of the article, as it ‘was not intended to create legal rights and obligations’.134 Other tribunals have held similarly.135 Russia and Ukraine have entered several agreements concerning issues related to maritime rights, each including dispute settlement provisions. Following Tzeng,136 three such provisions in particular may give rise to an objection under UNCLOS

127

See Sect. 2.1.2 above. See further Tzeng (2017), p. 7. 129 Ukraine v. Russia (Press Release, 31 August 2018). 130 UNCLOS, Art. 281(1). 131 See Sect. 2.2 above. See also Arbitral Tribunal, PCA Case No 2004-02 (Barbados v. Trinidad and Tobago), Award of 11 April 2006, para. 200; Arbitral Tribunal, PCA Case No 2002-1 The MOX Plant Case (Ireland v. United Kingdom), Order No 3 (Suspension) of 24 June 2003, para. 18. 132 Arbitral Tribunal, Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Award on Jurisdiction and Admissibility of 4 August 2000 (2002) 23 RIAA 1, paras. 40, 57, 65 (‘Southern Bluefin Tuna (Jurisdiction)’). 133 South China Sea (Jurisdiction), para. 223. 134 Id., para. 217. 135 See, e.g., ITLOS, Case No 12 Land Reclamation in and around the Straits of Johor (Malaysia v. Singapore), Decision on Provisional Measures of 8 October 2003. 136 Tzeng (2017), p. 10. 128

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Article 281.137 The first question is whether Ukraine’s claim under UNCLOS is reflected in a dispute under the relevant convention. This is difficult to determine without knowledge of the extent of Ukraine’s claims. However, the 1997 Treaty, for example, provides in Article 17 for the parties’ ‘freedom of transit of persons, freight and vehicles,’ and Russia may argue that Ukraine’s claims arising from the movement of drilling rigs fall within this provision’s scope.138 Similarly, the 2003 Border Treaty governs disputes ‘relating to contiguous maritime waters’,139 and the 2003 Cooperation Treaty refers to ‘the settlement of issues related to the Kerch Strait maritime area’.140 The relevance of each depends on the substance of Ukraine’s claims, as well as the tribunal’s interpretation of these clauses. The second issue is whether these sufficiently exclude other settlement procedures. This is not clearly established: even following the broader view of the tribunal in Southern Bluefin Tuna,141 it is difficult to find the requisite intention to exclude UNCLOS in these treaties. Overall, it appears that Russia will continue to participate in the Ukraine v. Russia matter, despite its anomalous non-participation in the Arctic Sunrise matter. Consistent with its past behaviour, it has objected to the tribunal’s jurisdiction on several grounds. This further confirms Russia’s tenuous relationship with international dispute resolution processes.

4 Russia’s Compliance with the Law of the Sea While the Arctic Sunrise and Ukraine v. Russia arbitrations reflect Russia’s contrasting approaches to participation, they also show the effect the international law of the sea has on Russia’s compliance in interstate arbitration. From this, it appears that the law of the sea not only delimits Russia’s relationship with international law, but also has a broader impact on Russian foreign policy.142

137

See Treaty on Friendship, Cooperation and Partnership Between Ukraine and the Russian Federation (Kiev, 31 May 1997, in force 1 April 1999) UNTS No 52240, Article 37; Treaty between Ukraine and the Russian Federation on the Ukrainian-Russian State Border (Kerch, 28 January 2003, in force 23 April 2004), Article 5 (‘Border Treaty’); Treaty Between the Russian Federation and Ukraine on Cooperation in the Use of the Sea of Azov and the Strait of Kerch (Kerch, 24 December 2003, in force 23 April 2004), Art. 1 (‘Cooperation Treaty’). 138 See Ukraine v. Russia (Press Release, 31 August 2018). 139 Border Treaty, Art. 5. 140 Cooperation Treaty, Art. 1. 141 On the approach’s persuasiveness, see, e.g., Boyle and Evans (2001), and Kwiatkowska (2003). 142 A further example is the relationship between Russia and Norway in the Barents Sea. The two States have long cooperated on enforcement measures in relation to fisheries violations, and in 2010 resolved their dispute over maritime delimitation. Contrary to its initial position, Russia agreed to delimit the sea according to the median-line principle, the predominant approach under international law: Hønneland (2014), and Choi (2014).

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It is beyond the scope of this chapter to analyse the extensive theoretical literature on the causal relationship between international law and international politics. Rather, it assumes that a constructivist approach applies, and that, at the very least, international law sets expectations of appropriate conduct for the society of nations. States both pre-empt and react to the perceptions of the international community, such that international law has the potential to mould conduct.143 International politics do not merely reflect distributions of power; rather, they can influence this distribution, due to the social dimension of power in the international community.144 The authors argue that the law of the sea, as applied by relevant tribunals, correlates with compliant conduct by Russia. Russia benefits from the regime,145 and compliance is typically expedient. Although this suggests that legal mechanisms may only encourage Russia’s compliance where there is no reason to act contrarily, this is often sufficient.146

4.1

Compliance and the Arctic Sunrise Arbitration

Russia’s conduct surrounding the Arctic Sunrise arbitration exemplifies compliance correlated with legal determinations, and contextualised by legally informed international perceptions.

4.1.1

Russia’s Compliance with the Order for Provisional Measures

The Netherlands’ initiation of dispute resolution processes under UNCLOS, and the determination by ITLOS at the provisional measures stage, correlate strongly with compliant conduct by Russia. First, on 23 October 2013, the same day that ITLOS’ registry received Russia’s note verbale detailing its jurisdictional challenge,147 and two days after the Netherlands sent its request for provisional measures to ITLOS,148

143

See generally Kratochwil (2014), and Brunnée and Toope (2010). Bower (2017), p. 4. See generally Barnett and Duvall (2005). 145 For example, Russia was the first State to claim an extension of its continental shelf in the Arctic pursuant to Art. 76(8) of UNCLOS: UN Office of Legal Affairs, ‘Submissions’ (2018). See http:// www.un.org/Depts/los/clcs_new/commission_submissions.html. More broadly, the USSR supported UNCLOS as a means for guaranteeing its rights (in particular, the navigational rights of its military): Klein (2005), p. 18. See also Karev (1995). 146 In the context of Russia’s establishment of its continental shelf in the Arctic, for example, it has been commented that the nature of its claims ‘proves that Russia is interested in following the legal path and international cooperation in the Arctic, at least as long as it serves Russia’s interests’: Zysk (2016), p. 150. 147 ITLOS (Arctic Sunrise), Press Release of 25 October 2013: https://www.itlos.org/fileadmin/itlos/ documents/press_releases_english/PR_202_E.pdf. 148 ITLOS (Arctic Sunrise), Press Release of 21 October 2013: https://www.itlos.org/fileadmin/itlos/ documents/press_releases_english/PR_201_E.pdf. 144

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Russia reduced the charge of piracy against the crew of the Arctic Sunrise—with a maximum term of 15 years imprisonment—to one of aggravated hooliganism, with a maximum term of seven.149 Second, on 22 November 2013, ITLOS prescribed provisional measures, ordering the release of the crew upon the Netherlands’ posting of a €3.6 million bond,150 and requiring Russia to allow them to leave Russian territory.151 Only one week later, on 29 November, the crew of the Arctic Sunrise were released on bail,152 and on 18 December, by Decree of the Russian State Duma, the crew of the Arctic Sunrise were granted amnesty, with permission to leave Russia by the end of 2013.153 The Arctic Sunrise itself, however, was not released until August 2014.154 The legal sufficiency of Russia’s conduct was addressed in the merits phase of the Arctic Sunrise arbitration. The tribunal found that Russia breached the ITLOS order by failing to act promptly, as required by Article 290(6) of UNCLOS,155 in delaying the release of the crew,156 and then of the vessel.157 However, while the vessel’s retention was in clear breach, only 27 days elapsed between the bond being posted on 2 December 2013, and the crew’s release. The tribunal’s determination of breach here is therefore questionable.158 At any rate, only the length of time elapsed was held to breach the provisional order: Russia’s conduct in releasing the vessel and crew fulfilled the order’s overall goal. Although ITLOS did not determine the validity of the Netherlands’ claim,159 its determination of provisional measures indicates that they were deemed necessary to ‘preserve the respective rights of the parties to the dispute’.160 The relevant right engaged by the Netherlands was the crew’s right to liberty and security, as well as its

149

Investigative Committee of the Russian Federation, Press Release of 23 October 2013: https:// sledcomrf.ru/news/print/105365-sledstviem-perekvalifitsirovanyi-deystviya-napadavshih.html. See Federal Law No 64-FZ (Russian Federation), 13 June 1996, Articles 213(2), 227(3). 150 Arctic Sunrise (Provisional Measures), para. 105(a). 151 Id., para. 105(b). 152 PCA (Arctic Sunrise), Press Release of 24 August 2015: http://www.pcacases.com/web/ sendAttach/1444 (‘Arctic Sunrise (Press Release, 24 August 2015’). 153 Id. See also Decree of the State Duma No 3500-6 GD (Russian Federation), 18 December 2013 (‘Amnesty’). 154 Arctic Sunrise (Press Release, 24 August 2015). 155 UNCLOS, Art. 290. See also Arctic Sunrise (Provisional Measures), para. 101. This requirement differs from the prompt release remedy available for ships captured on account of breaches of coastal State fisheries regulations (UNCLOS, Arts 73(2), 292). While Judges Jesus and Golitsyn queried whether the provisional measure amounted to a constructive prompt release remedy (see Arctic Sunrise (Provisional Measures), paras. 265–266, 289–290), these are not necessarily equivalent. 156 Arctic Sunrise (Merits), para. 350. 157 Id., paras. 355, 358. 158 See further Harrison (2016), pp. 155–156. 159 Arctic Sunrise (Provisional Measures), para. 100. 160 Id., para. 81. See UNCLOS, Art. 290(1).

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right to leave Russian territory.161 As such, the order for provisional measures gave content to a potential violation of the law of the sea, by recognising those rights’ validity. Russia’s concomitant conduct indicates a desire, where the potentiality of breach has been made explicit, to pursue compliance.

4.1.2

Contextual Issues and International Perceptions of Russia’s Conduct

This assessment, that Russia’s compliance with the provisional measures was caused in part by the Netherlands’ initiation of proceedings, is strengthened by its surrounding context. The crew’s amnesty was approved as part of the 20th anniversary celebrations of the adoption of the Russian Constitution, and its drafting had been in process since mid-2013.162 However, it explicitly provided for the release of those charged with hooliganism,163 not for those charged with piracy, the crew’s earlier charge.164 The nexus between the amnesty and the Arctic Sunrise was stressed at the 2014 Meeting of the Council for the Development of Civil Society and Human Rights: Mikhail Fedotov, the Chairman, aligned the amnesty with the human rights ‘triumph’ of the Sochi Olympics, with direct reference to the crew of the Arctic Sunrise.165 Moreover, the amnesty followed Fedotov’s own request for the crew's release on 12 November 2013.166 The amnesty, if not occasioned by the Arctic Sunrise, was formulated with it in mind. Russia’s Winter Olympic Games took place in Sochi from 7 to 23 February 2014,167 and further contextualised the Arctic Sunrise crew’s release. The Games heightened Russia’s concerns about external scrutiny of its compliance with international law. In particular, a Human Rights Watch report in 2012 criticised Russia’s ‘unprecedented crackdown against civic activism’, discriminatory laws, and censorship.168 As a result, several Western media commentators, noting the temporal proximity of the Olympics to the amnesty, attributed it to Russia’s desire to improve

161

Arctic Sunrise (Provisional Measures), para. 87. President of Russia, Press Release of 25 June 2013: http://en.kremlin.ru/events/president/news/ 18403. 163 Amnesty, Art. 6(5). 164 Id., Art. 10(1). 165 President of Russia, Press Release of 14 October 2014: http://kremlin.ru/events/president/news/ 46786 (‘President of Russia, Press Release of 14 October 2014’). 166 ‘Delo Arctic Sunrise: Zaderzhanie aktivistov Greenpeace u neftjanoj platformy ‘Gazproma”, RAPSI News (online), 22 November 2013: http://rapsinews.ru/incident_publication/20131122/ 269764768.html. 167 See Olympic Games, ‘Sochi 2014’ (2018): https://www.olympic.org/sochi-2014. 168 Human Rights Watch, ‘World Report 2013: Russia – Events of 2012’, January 2013: https:// www.hrw.org/world-report/2013/country-chapters/russia. 162

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its image in advance of the Games.169 Russia’s external circumstances, and interpretation of its actions by the international community, were thus relevant in guiding its behaviour towards compliance. The concomitant release of two members of the Russian band Pussy Riot by the amnesty170 warrants comparison with the Arctic Sunrise; indeed, Fedotov collated the two incidents in his aforementioned report to the relevant Council.171 The band members were sentenced to two years imprisonment for hooliganism on 17 August 2012, after protesting President Vladimir Putin’s re-election in a Moscow cathedral.172 Their treatment was condemned by human rights groups, such as Amnesty International,173 as well as by the United States, the United Kingdom, France, and Germany.174 However, Russian public opinion was less supportive: a July 2012 poll found that 47% of participants thought the band had violated norms of public morality, and 33% believed a sentence of up to seven years was appropriate.175 Thus, Pussy Riot’s inclusion in the amnesty relied in part on external considerations, as no domestic groundswell existed in Russia to compel their release; rather, it was international pressure, informed by international human rights law, that affected Russia’s policy calculus. Notably, human rights issues also arise in the factual matrix of the Arctic Sunrise dispute. First, the Netherlands posited that its claim before ITLOS relied on ‘individual rights and freedoms’, particularly the ‘right to liberty and security’.176 Second, Greenpeace, in its amicus curiae submission to ITLOS, justified its protest of the oil platform as an exercise of its ‘rights of freedom of expression and assembly’, and the Netherlands adopted this argument in replies to questions.177

See, e.g., Luke Harding and Francesca Ebel, ‘Pussy Riot and Arctic 30 amnesty is a Putin masterstroke ahead of Olympics’, Guardian (online), 19 December 2013: https://www.theguardian. com/world/2013/dec/18/pussy-riot-arctic-30-amnesty-putin-winter-olympics-sochi. 170 Steve Gutterman, ‘Russian amnesty to benefit Pussy Riot, Greenpeace 30’, Reuters (online), 20 December 2013: https://www.reuters.com/article/us-russia-greenpeace-amnesty/russianamnesty-to-benefit-pussy-riot-greenpeace-30-idUSBRE9BH0FO20131219. 171 President of Russia, Press Release of 14 October 2014, supra note 165. 172 ‘Pussy Riot members jailed for two years for hooliganism’, BBC News (online), 17 August 2012: http://www.bbc.com/news/world-europe-19297373. 173 Amnesty International, ‘EUR 46/014/2012: Public Statement’, 3 April 2012: https://www. amnesty.org/download/Documents/20000/eur460142012en.pdf. 174 See, e.g., Nataliya Vasilyeva, ‘Pussy Riot members sentenced to 2 years in prison’, USA Today (online), 17 August 2012: https://usatoday30.usatoday.com/news/world/story/2012-08-17/pussyriot-verdict/57109992/1; ‘121 German Parliamentarians Support Jailed Pussy Riot Members’, Sputnik International (online), 8 August 2012: https://sputniknews.com/russia/ 20120808175059708/. 175 Levada Center, Press Publication of 31 July 2012: https://www.levada.ru/2012/07/31/rossiyaneo-dele-pussy-riot/. 176 Arctic Sunrise (Provisional Measures), para. 87. 177 ITLOS, Case No. 22 The “Arctic Sunrise” Case (Netherlands v. Russia), Answers to Questions by the Tribunal of 7 November 2013, p. 3. 169

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Thus, despite the differing context, similar human rights concerns informed Russia’s treatment of both Pussy Riot and the Arctic Sunrise.

4.1.3

Russia’s Reaction to the Order for Compensation

The influence that contextual forces have in encouraging compliance is apparent in their obverse. Finding in favour of the Netherlands on the merits on 14 August 2015, the arbitral tribunal handed down its Award on Compensation on 10 July 2017, requiring Russia pay €5.4 million in compensation.178 Russia’s reaction was dismissive. Its Foreign Ministry made a statement on 20 July 2017, articulating Russia’s prior position—that the tribunal lacked jurisdiction, and that the Arctic Sunrise’s crew acted unlawfully—and noting: ‘It is difficult to add anything to this assessment at this point with regard to the decision on compensation.’179 Apart from a statement by the Government of the Netherlands demanding payment by Russia,180 its refusal to pay was met with international indifference: the release of the Arctic Sunrise and its crew three-and-a-half years prior had alleviated international censure, such that the international political context that once encouraged compliance no longer existed. As such, Russia’s tendency to comply here is based on the broader political context. International law does not coerce or cause Russia’s conduct, but rather galvanises international opinion on its appropriateness, and thus affects Russia’s political calculus.

4.2

Compliance and the Ukraine v. Russia Arbitration

The Ukraine v. Russia matter also typifies Russia’s practice of pursuing compliance with the law of the sea where its breach is the object of arbitral determination. Here, however, the causal connection between the international community’s perceptions and Russia’s conduct is blurred by economic and geopolitical circumstances surrounding its 2014 annexation of Crimea. Even so, a tendency towards compliance remains apparent.

178

Arctic Sunrise (Compensation), para. 128. The Ministry of Foreign Affairs of the Russian Federation, Press Release of 20 July 2017: http:// www.mid.ru/en/web/guest/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/ 2818579?. 180 Government of the Netherlands, Press Release of 18 July 2017: https://www.government.nl/ latest/news/2017/07/18/koenders-satisfied-with-award-of-damages-in-arctic-sunrise-case. 179

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Ukraine’s Arbitration Claim: Gas Extraction in the Black Sea

The precise content of Ukraine’s claim on the merits will remain obscure until proceedings progress. However, it is known that Ukraine is claiming five violations of its rights under UNCLOS: these include navigational rights and, most pertinently here, ‘Ukraine’s rights to hydrocarbon resources in the Black Sea and Sea of Azov.’181 This ground was emphasised both in the statement of the Ukrainian Ministry of Foreign Affairs upon initiating arbitration on 14 September 2016,182 as well as in a statement by the President the same day.183 From the language of Ukraine’s submission, the substance of the claim appears to be that Russia’s operations violate Ukraine’s sovereign rights to exploit the natural resources in its EEZ and continental shelf under Articles 56(1)(a) and 77(1) of UNCLOS, and so constitute a breach of Russia’s duty to respect those rights, under Articles 58(3) and 77(2). The claim concerns Russia’s operations in the Odessa gas field in the Black Sea. During its 2014 annexation of Crimea, Russia took control of Chernomorneftegaz, a joint-stock association owned by Naftogaz—Ukraine’s State-owned oil and gas company—which conducted operations in the Black Sea.184 Russia nationalised Chernomorneftegaz, and transferred its assets to Gazprom, a majority Russian government-owned gas company.185 Naftogaz maintains that this takeover was unlawful, and retains a legal entity of the same name in Kyiv.186 Indeed, Naftogaz, along with six of its subsidiaries, commenced arbitration against Russia on 17 October 2016, seeking compensation for seizure of its assets.187 To date, Russia has not participated in this arbitration, claiming the tribunal lacks jurisdiction.188

181

See further Ukraine v. Russia (Press Release, 31 August 2018). Ukraine, Statement on Initiation of Arbitration, supra note 121. 183 President of Ukraine, Press Release of 14 September 2016: http://www.president.gov.ua/news/ prezident-doruchiv-mzs-podati-pozov-proti-rosiyi-do-mizhnaro-38147. 184 This chapter uses the Russian spelling of ‘Chernomorneftegaz’, in keeping with the entity’s current public position: Chernomorneftegaz, ‘Kto my’ (2018): http://gas.crimea.ru/o-nas/kto-my. 185 ‘Aktyvy ‘Chornomornaftohazu’ pid oxoronoyu i budut’ peredani Rosiyi, – Konstantynov’ INSIDER (online), 13 March 2014: http://www.theinsider.ua/business/53218dfe2cec8/. See also, ‘Zamglavy ‘Chernomornaftogaza’: my stanem sobstvennost’ju ‘Gazproma” INSIDER (online), 14 March 2014: http://www.theinsider.ua/business/532339463f7a1/; Chernomorneftegaz, ‘Nasha Istorija’ (2018): http://gas.crimea.ru/o-nas/nasha-istoriya. 186 Andrij Yanitsky, ‘Glava ‘Chernomorneftegaza’ Svetlana Nezhnova: ‘Rossijane nas bojatsja, pojetomu usilenno ohranjajut burovye platformy” LB.ua (online), 12 September 2017: https://lb.ua/ economics/2017/09/12/376183_glava_chernomorneftegaza_svetlana.html; ‘Rossija ukrala bolee 3,5 mlrd kubometrov ukrainskogo gaza’ Delovaya Stolitsa (online), 22 February 2018: http:// www.dsnews.ua/economics/rossiya-ukrala-bolee-3-5-mlrd-kubometrov-ukrainskogo-gaza22022018063400. 187 Naftogaz, Press Release of 19 October 2016: http://www.naftogaz.com/www/3/nakweb.nsf/0/ 551231B8DEF4EB16C22580510024CA6E?. 188 See, e.g., Repousis (2016), pp. 462–466. 182

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Nonetheless, Russia has used Chernomorneftegaz’s pre-existing assets to supply gas to Crimea: in 2015, 49.1% of the 1.8 billion cubic meters of gas produced by Crimea came from the Odessa gas field, extracted by the company’s four rigs there, and 40.1% from the Shtormove field further east.189 Moreover, since the annexation, Russia has increased the field’s capacity.190 Gas production in the Black Sea constitutes about 81% of Crimea’s total gas consumption,191 such that these resources constitute a vital part of Crimea’s total energy use.

4.2.2

Recent Developments: Ceasing Breach in the Odessa Gas Field

In February 2018, RBK Group reported, on the basis of sources close to Russia’s Ministry of Energy and Crimea’s Ministry of Fuel and Energy, that Russia would cease operations in the Odessa gas field.192 This was widely re-reported in Russian and Ukrainian media,193 and was later confirmed by the Russian Minister of Energy, who explained that the final decision would depend on the ‘legal bases’ of Ukraine’s claim.194 These reports were consistent with the projected operations of Chernomorneftegaz. In 2017, both Eurasia Daily and RBK Group reported that an internal order from the company’s General Director noted that operations in Odessa field would cease on 1 July 2018.195 Moreover, a 2017 forecast by the Crimean Ministry for Economic Development considered closing of operations in the Odessa

189

Ministry of Fuel and Energy of the Republic of Crimea, Attachment to Ministerial Decree No. 170 of 26 April 2016, p. 4. For the relative positioning of the fields, see ‘Kiev taking Moscow to court: Who will get Black Sea gas?’ Eurasia Daily (online), 1 September 2016: https://eadaily. com/en/news/2016/09/01/kiev-taking-moscow-to-court-who-will-get-black-sea-gas; Kurovets et al. (2011). 190 ‘Rossija ukrala bolee 3,5 mlrd ukbometrov ukrainsogo gaza’, supra note 186. 191 Ministry of Fuel and Energy of the Republic of Crimea, Attachment to Ministerial Decree No 658 of 5 December 2017, p. 6; ‘Ob’jom dobychi prirodnogo gaza v Krymu snizhaetsja — ministr topliva i jenergetiki RK’ Krymskoe informacionnoe agentstvo (online), 29 December 2017: https:// kianews24.ru/news/obyom-dobichi-prirodnogo-gaza-v-krimu-s/. 192 Ivan Tkachev, Alina Fadeeva and Lyudmila Podobedova, ‘Mezhdu Krymom i Odessoj: pochemu Rossija sokrashhaet dobychu gaza v Chernom’ RBK Group (online), 15 February 2018: https://www.rbc.ru/economics/15/02/2018/5a82d1899a794706e604a6d0. 193 See, e.g., ‘Rossija ostanovit dobychu gaza v Krymu iz-za suda s Ukrainoj – SMI’ Dengi.ua (online), 15 February 2018: http://dengi.ua/business/302155-Rossiya-ostanovit-dobichy-gaza-vKrimy-iz-za-syda-s-Ykrainoi-SMI; ‘RBK uznal o vozmozhnoj zamorozke krupnejshego gazovogo mestorozhdenija na shel'fe Kryma’ Vedomosti (online), 15 February 2018: https://www.vedomosti. ru/business/news/2018/02/15/751047-zamorozke-mestorozhdeniya-krima. 194 Alexander Sukov, ‘Sam ne gam. Pochemu Rossija brosaet dobychu gaza na shel'fe Kryma’ Delovaja stolica (online), 1 March 2018: http://www.dsnews.ua/economics/sam-ne-gam-rossiyamozhet-svernut-dobychu-gaza-na-shelfe-28022018220000. 195 Tkachev, Fadeeva and Podobedova, ‘Mezhdu Krymom i Odessoj’, supra note 192; ‘Krym nachnet otkazyvat'sja ot sobstvennogo gaza v sledujushhem godu’ Eurasia Daily (online), 30 November 2017: https://eadaily.com/ru/news/2017/11/30/krym-nachnet-otkazyvatsya-otsobstvennogo-gaza-v-sleduyushchem-godu.

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field its ‘conservative option’.196 Thus, it appears very likely that Russia determined, in late 2017, to cease Chernomorneftegaz’s operations at some point in 2018. At time of writing, this halt has not yet been put into effect. On 3 September 2018, Ukrainian media reported that the Crimean Ministry of Fuel and Energy had ‘suspended’ the stop order: this move followed the Ministry’s failure to reach agreement with local authorities,197 and the resignation in March 2018 of Chernomorneftegaz’s General Director, the stop order’s signatory.198 However, analysts suggest that production in the Odessa field continues to decline, and that the company’s actions—including plans to liquidate wells in 2018–2020—are consistent with an intention to halt production in the medium-term.199 In the context of the dispute between Russia and Ukraine, such a stop order— whether finally effected or not—is a highly significant, and perhaps surprising, decision. It would appear to render nugatory the core of Ukraine’s claim against Russia for unlawful economic activities in the Black Sea, as this very behaviour has ceased. This is because the extent of Russia’s alleged breach is geographically limited to the Odessa field, which is located closer to mainland Ukraine than it is to Crimea (155 km from the closest point on the Crimean coast, and only 100 km from the Ukrainian coast).200 As such, it is the only exploited field that would fall on the Ukrainian side of a putative equidistance line drawn between Ukraine and Crimea, and thus within Ukraine’s EEZ.201 More specifically, Ukraine’s EEZ and continental shelf overlap with any zone potentially extending from Crimea.202 Delimitation has not occurred following the 2014 annexation, as Ukraine maintains that Crimea remains Ukrainian territory.203 Although UNCLOS merely requires an

Ministry for Economic Development of the Republic of Crimea, ‘Pojasnitel'naja zapiska po osnovnym parametram prognoza social'no-jekonomicheskogo razvitija na 2018 god i planovyj period 2019 i 2020 godov v Respublike Krym’, 12 October 2017: http://budget.rk.ifinmon.ru/ dokumenty/prochie-dokumenty, p. 10. 197 Alina Fadeeva, ‘Pochemu Rossija prodolzhaet dobychu na spornom Odesskom mestorozhdenii v Krymu’ RBK Group (online), 3 September 2018: https://www.rbc.ru/business/03/09/2018/ 5b7c0ac89a794735ea890564; ‘RF peredumala ostanavlivat’ dobychu gaza v okkupirovannom Krymu’ LIGA.net (online), 3 September 2018: https://biz.liga.net/ekonomika/tek/novosti/rfperedumala-ostanavlivat-dobychu-gaza-v-okkupirovannom-krymu. 198 Lyudmila Podobedova, Alina Fadeeva and Ivan Tkachev, ‘“Chernomorneftegaz” otvetil za zaderzhku’ RBK Group (online) 26 March 2018: https://www.rbc.ru/newspaper/2018/03/27/ 5ab8cb709a794742788767a5; ‘Rukovodstvo “Chernomorneftegaza” podalo v otstavku’ RIA Novosti (online), 27 March 2018: https://ria.ru/economy/20180327/1517344227.html. 199 Fadeeva, ‘Pochemu Rossija prodolzhaet dobychu’, supra note 197. 200 Chernomorneftegaz, ‘Nasha operacionnaja dejatel'nost’ onlajn’ (2018): http://gas.crimea.ru/ map/23-novosti/69-karta. 201 ‘Kiev taking Moscow to court: Who will get Black Sea gas?’ Eurasia Daily (online), 1 September 2016: https://eadaily.com/en/news/2016/09/01/kiev-taking-moscow-to-court-who-will-get-blacksea-gas. 202 UNCLOS, Art. 74. 203 Menkiszak (2016), p. 89. 196

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‘equitable solution’,204 this has been presumed in ICJ jurisprudence to be the equidistance approach in situations of opposite and adjacent coasts.205 The equidistance line is subject to the consideration of minor equitable adjustments, and subsequent verification that such an adjusted line does not cause marked disproportion.206 This methodology has previously been applied in the Black Sea itself: in Maritime Delimitation in the Black Sea, the ICJ determined that the north-south maritime boundary between Romania and Ukraine should follow the equidistance principle.207 Crimea served as the eastern baseline from which this boundary was drawn, with the west coast of the Black Sea forming the western baseline. The delimitation here would naturally follow the same path north-north-west (see Fig. 16.1), subject to mitigating factors. Notably, however, Russia’s activities in the Odessa gas field would not constitute such a factor: there is no tacit agreement over the field’s ownership, and placing the field within Ukraine’s EEZ would not have ‘catastrophic repercussions’ for Crimea, as required.208 Delimiting the Black Sea in this way requires no comment on the sovereignty of the waters to the east of the delimitation; rather, it defines the minimum maritime zone Ukraine could claim, regardless of Crimea’s status. Accordingly, if the Odessa gas field falls within Ukraine’s minimum claimable maritime zone, Russia’s operations in the field constitute a breach of duties under UNCLOS to refrain from unlawful economic activities in Ukraine’s EEZ and continental shelf,209 and ceasing them brings Russia in compliance. The nexus between Russia’s new policy and the tribunal’s likely determination has been noted in reports on the plan to halt production. The Russian lawyer Ilia Rachkov has suggested that Russia has a weak argument with regard to the economic activities in the Odessa field, and RBK Group reports that anonymous sources from within the Russian Government attribute the decision to the Foreign Ministry’s desire to pre-empt Ukraine’s argument.210 This seems to be confirmed by the temporal proximity of the stop order

204

UNCLOS, Arts 74(1), 83(1). See Tanaka (2006), pp. 121–122; Case Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta) (Judgment) [1985] ICJ Rep 13, para. 70; Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) (Merits) [2001] ICJ Rep 40, para. 230. 206 See, e.g., Maritime Delimitation in the Black Sea (Romania v. Ukraine) (Judgment) [2009] ICJ Rep 61, paras. 115–122 (‘Romania v. Ukraine’); Case Concerning Maritime Dispute (Peru v. Chile) (Judgment) [2014] ICJ Rep 3, para. 180. See also ITLOS, Case No 16 Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Judgment of 14 March 2012, para. 240. 207 Romania v. Ukraine, paras. 217–219, 133. 208 See Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America) (Judgment) [1984] ICJ Rep 246, para. 237. Compare Romania v. Ukraine, paras. 197–198. 209 UNCLOS, Arts 58(3), 77(2). 210 See Tkachev, Fadeeva and Podobedova, ‘Mezhdu Krymom i Odessoj’, supra note 192. 205

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Fig. 16.1 Sketch-map No. 9 from the ICJ’s judgment in Romania v. Ukraine, p. 133. Note the Court’s comment at para. 218: ‘From Point 4 the boundary traces the line equidistant from the opposite coasts of Romania and Ukraine until Point 5’ [emphasis added]

to Ukraine filing its memorial: the RBK Group report, for instance, only preceded filing by four days.211 The decision to halt exploitation thus indicates Russia’s recognition of the potential effect of the tribunal’s determination. 211

Ministry of Foreign Affairs of Ukraine, Press Release of 19 February 2018: http://mfa.gov.ua/en/ press-center/news/63052-zajava-mzs-ukrajini-shhodo-podachi-ukrajinoju-memorandumu-varbitrazhnomu-provadzhenni-proti-rf-za-konvencijeju-oon-z-morsykogo-prava.

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Of course, the cessation of gas extraction operations in the Odessa field does not resolve the question of Chernomorneftegaz’s ownership (the subject of the aforementioned investor-State arbitral proceedings commenced by Naftogaz); of compensation for past breach (Russia has extracted about 3.5 billion cubic meters of gas from the Odessa gas field alone)212; or of sovereignty over the field, which Russia has not explicitly ceded. It also does not address the other elements of Ukraine’s claim.213 However, insofar as the claim concerns Russia’s breaches of duties owed in Ukraine’s maritime zone, the conduct is directly referable. Overall, this decision’s effect on the substance of Ukraine’s claim regarding the Black Sea, and its temporal proximity to Ukraine’s institution of arbitration proceedings, indicate a prima facie causal relationship. Russia’s shift to compliance, if primarily for the sake of averting an arbitral claim, exemplifies the effectiveness of international law in guiding State behaviour.

4.2.3

The Context of Russia’s Conduct and Its External Causes

However, while relevant, Ukraine’s suit is not the sole cause of Russia’s conduct: the broader political and economic context is a vital consideration, and problematise the preceding account. First, the move reflects Russia’s inclination to avoid further tension with Ukraine in the Black Sea. These tensions came to a head in December 2015, when Russia moved two of Chernomorneftegaz’s drillings rigs in the Odessa gas field closer to the territorial sea off the Crimean Peninsula.214 In a statement on 16 December 2015, Ukraine accused Russia of ‘pillaging’ its rigs, describing the move as ‘provocative’,215 and Russia reportedly deployed a military escort ship to the area.216 Subsequently, domestic Ukrainian courts made arrest orders in absentia on two rigs.217 Russian commentators have observed that these tensions were relevant to the ‘Rossija ukrala bolee 3,5 mlrd ukbometrov ukrainsogo gaza’, supra note 186. Ukraine v. Russia (Press Release, 31 August 2018). 214 See, e.g., ‘Ukraine says Russia looted two Crimean oil rigs’, Reuters (online), 17 December 2015: https://www.reuters.com/article/us-ukraine-crisis-crimea-energy/ukraine-says-russia-lootedtwo-crimean-oil-rigs-idUSKBN0TZ22G20151216. 215 Ministry of Foreign Affairs of Ukraine, Press Release of 16 December 2015: http://mfa.gov.ua/ ua/press-center/news/43246-statement-by-the-ministry-of-foreign-affairs-of-ukraine-with-regardto-gross-violation-by-the-russian-federation-of-the-united-nations-convention-on-the-law-of-thesea. 216 See ‘FSB sends escort ship to protect Chernomorneftegaz boring rigs from Ukrainian warships’, Russian News Agency TASS (online), 16 December 2015: https://tass.com/politics/844375; Yuri Barsukov and Yanina Sokolovskaya, ‘Otstuplenie v burovom porjadke: Zachem ‘Chernomorneftegazu’ voennyj konvoj’ Kommersant (online), 15 December 2015: https://www. kommersant.ru/doc/2877578. 217 ‘Odessa court seizes four floating drilling rigs in the Black Sea that were captured by Russia’, UAWire (online), 7 February 2017: http://www.uawire.org/news/the-odessa-court-arrested-inabsentia-four-floating-drilling-rigs-in-the-black-sea-captured-by-russia; ‘Court arrests four drilling 212 213

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decision to cease the Odessa field operations: an analyst at the Russian National Energy Security Fund noted that ‘[a]t this point, Moscow is acting to relieve tension,’218 and the Director of Programs at the Russian International Affairs Council—a State-affiliated think tank219—stated: ‘It is in Russia’s interests. . . to achieve certainty [with regard to Crimea]’.220 Russia’s recent conduct, therefore, may be driven by political rather than legal concerns: continuing to provoke Ukraine increases undesirable instability in the region, and ceasing operations reduces the scope of complaint. Second, economic concerns also inform this analysis: continued operations in the Odessa field are increasingly financially infeasible and unnecessary, as Chernomorneftegaz’s financial position weakens. The annexation has resulted in international sanctions on Crimea, including by the United States.221 These have directly impacted Chernomoreftegaz’s operations: without access to deep-sea gas production equipment, the Odessa field’s gas production decreased 6.7% between 2014 and 2015,222 and the Crimean Minister of Fuel and Energy noted in December 2017 that the remedy—drilling new wells—was prohibitively expensive.223 Thus, Russia may have already had an economic incentive to find alternative means of supplying gas to Crimea. One alternative means of supply is the Kuban-Crimea gas pipeline. This pipeline was completed in December 2016, linking mainland Russia to the Crimean Peninsula across the Kerch Strait: with capacity to transport 2.1 to 4 billion cubic metres of natural gas to Crimea annually, this could potentially supply Crimea’s total annual gas needs.224 Crimea began receiving gas through this pipeline in 2017,225 and in January 2018, Chernomorneftegaz signed a contract with the Russian Ministry of Energy to receive a further 1.76 billion cubic meters.226 This suggests that

rigs of Chornomornaftogaz seized by Russia’, Interfax-Ukraine (online), 7 February 2017: https:// en.interfax.com.ua/news/economic/401625.html. 218 ‘Krym nachnet otkazyvat'sja ot sobstvennogo gaza’, supra note 195. 219 Russian International Affairs Council, ‘O sovete’ (2018): http://russiancouncil.ru/about/. 220 Tkachev, Fadeeva and Podobedova, ‘Mezhdu Krymom i Odessoj’, supra note 192. 221 See, e.g., Blocking Property of Certain Persons and Prohibiting Certain Transactions With Respect to the Crimea Region of Ukraine (United States of America), Executive Order 13685, Federal Register 79 No 247, 19 December 2014, Section 1. 222 See Republic of Crimea, No. 352-ZRK/2017: Attachment to Law of the Republic of Crimea of January 9 2017: https://minek.rk.gov.ru/file/File/minek/2017/strategy/strategy-fullvers.pdf. 223 ‘Ob’jom dobychi gaza v Krymu snizhaetsja,’ supra note 191. 224 President of Russia, Press Release of 27 December 2016: http://kremlin.ru/events/president/ news/53601. 225 ‘Media: Crimea began receiving gas from Russia’s Krasnodar Krai’, UAWire (online), 9 January 2017: http://uawire.org/news/media-crimea-began-receiving-gas-from-russia-s-federal-subject-kras nodar-krai. 226 ‘Chernomorneftegaz do fevralja 2019g kupit u struktury Minjenergo RF 1,8 mlrd kub. m gaza na 11 mlrd rub’ Interfax-Russia (online), 17 January 2018: http://www.interfax-russia.ru/Crimea/ news.asp?id¼901328.

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Chernomorneftegaz is shifting its operations away from extraction in the Black Sea, and towards concluding supplier agreements with Russia. Indeed, three new electricity plants serviced by this pipeline are planned for commission in Crimea in 2018.227 This indicates the broader Russian policy in relation to sourcing energy: the economic plan, preceding the arbitral claim by at least a year—preparatory works on the pipeline begun by October 2015228—may evince a prior Russian intention to cease Black Sea operations. Overall, it is difficult to assess the extent to which Ukraine’s arbitral claim caused Russia to cease operations in the Odessa gas field. On the one hand, the nexus between the content of Ukraine’s claim, relevant international law, and the direct impact of Russia’s recent decision on its state of compliance, implies causality. Alternatively, the decision aligned with Russia’s broader geopolitical and economic concerns, and may have been made without reference to Ukraine’s legal position. However, even in the latter case, two points stand. First, these contextual circumstances are not devoid of international legal character. Tensions between Russia and Ukraine arise on the same facts on which Ukraine bases its claim—unlawful activity in its waters—and the energy difficulties Crimea faces are linked to sanctions based on Russia’s alleged violations of international law. Second, at any rate, international law has substantiated the policy Russia adopted. The very fact that Russia’s stop order is referable to Ukraine’s claim entails that Ukraine would interpret, and Russia explain, actions affecting that decision in the language of international law. The recent ‘legalisation’ of the language of international politics means that such an interpretation or framing of conduct, otherwise devoid of ‘legal’ motivation, is expected.229 Thus, the distinction is semantic: either Russia acted in order to comply with international law, or acted in a way that evinced the same compliance, a signal Russia knew the international community would recognise.

5 Conclusion Russia’s relationship with arbitration in the context of the law of the sea is a story of paradoxes. While it typically supports legal dispute resolution institutions, participating in and contributing to proceedings, this is undermined by consistent jurisdictional challenges and a clear preference for non-binding determinations; in any case, in the Arctic Sunrise arbitration, where such jurisdictional challenges were available, Russia was absent. Similarly, while Russia has been sued by affected States for breaches of the law of the sea, its conduct tends towards compliance, particularly where arbitral tribunals are constituted and prepared to rule on putative breaches; in

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Id. See, e.g., ‘Purchases for new gas pipeline from Krasnodar region to Crimea include 200 km of pipes’, Russian News Agency TASS (online), 1 October 2015: http://tass.com/economy/825243. 229 Sinclair (2010), p. 1; Kratochwil (2014), p. 1. 228

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any case, in both arbitrations covered in this chapter, Russia’s conduct also pointedly aligns with its own self-interest. This suggests that the implementation of the law of the sea is most effective when influencing how Russia is perceived by the international community: Russia strives to appear to contribute to the processes of international law, and to comply with its rules. However, the law’s effectiveness is limited by Russia’s self-imposed pre-condition that it thereby benefit directly.

References Barnett M, Duvall R (2005) Power in international politics. Int Organ 59(1):39–75 Benedek W (2017) Russia and the European Court of Human Rights: some general conclusions. In: Mälksoo L, Benedek W (eds) Russia and the European Court of Human Rights: the Strasbourg effect. Cambridge University Press, Cambridge, pp 385–399 Bower A (2017) Norms without the great powers: international law and changing social standards in world politics. Oxford University Press, Oxford Boyle A, Evans MD (2001) The Southern Bluefin Tuna arbitration. Int Comp Law Q 50 (2):447–452 Brunnée J, Toope SJ (2010) Legitimacy and legality in international law: an interactional account. Cambridge University Press, Cambridge Chandrasekhara Rao P, Khan R (eds) (2001) The International Tribunal for the Law of the Sea: law and practice. Kluwer Law International, The Hague Choi YH (2014) The Barents Sea: equal division of the disputed sea between Russia and Norway. J East Asian Aff 28(2):61–81 Gadelshina ER (2011) Major pitfalls for foreign investors in Russia: What are Russian BITs worth? Kluwer Arbitration Blog. http://arbitrationblog.kluwerarbitration.com/2011/12/01/major-pit falls-for-foreign-investors-in-russia-what-are-russian-bits-worth Harrison J (2016) Current legal developments: the Arctic Sunrise arbitration (Netherlands v Russia). Int J Mar Coast Law 31:145–159 Hillebrecht C (2014) The power of human rights tribunals: compliance with the European Court of Human Rights and domestic policy change. Eur J Int Relat 20(4):1100–1123 Hønneland G (2014) Arctic politics, the law of the sea and Russian identity: the Barents Sea delimitation agreement in Russian public debate. Palgrave Macmillan, Basingstoke Jordan PA (2017) Diminishing returns: Russia’s participation in the World Trade Organization. Post-Soviet Aff 33(6):452–471 Karev S (1995) The Russian Federation and the UN Conference on the Law of the Sea. Proc Annu Meet Am Soc Int Law 89:455–458 Klein N (2005) Dispute settlement in the UN Convention on the Law of the Sea. Cambridge University Press, Cambridge Kratochwil F (2014) The status of law in world society: meditations on the role and rule of law. Cambridge University Press, New York Kurovets I et al (2011) Thermobaric conditions in zones of oil and gas accumulations of the Southern Oil- and gas-bearing region of Ukraine. AAPG Search and Discovery 40714 Kwiatkowska B (2003) The Southern Bluefin Tuna arbitral tribunal did get it right: a commentary and reply to the article by David A. Colson and Dr. Peggy Hoyle. Ocean Dev Int Law 34:369–395 Mälksoo L (2012) Russia and European human-rights law: margins of the margin of appreciation. Rev Central East Eur Law 37:359–369 Martin JMC (2014) Prior consultations and jurisdiction at ITLOS. Law Pract Int Courts Tribunals 13:1–26

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Menkiszak M (2016) Borders in flux: Ukraine as a case study of Russia’s approach to its borders. Eurasia Border Rev 6:83–102 Repousis OG (2016) Why Russian investment treaties could apply to Crimea and what would this mean for the ongoing Russo-Ukrainian territorial conflict. Arbitr Int 32:459–481 Schatz VJ, Koval D (2018) Ukraine v. Russia: Passage through Kerch Strait and the Sea of Azov (Part III). Völkerrechtsblog. http://voelkerrechtsblog.org/ukraine-v-russia-passage-throughkerch-strait-and-the-sea-of-azov-3 Schewe CJ (2013) Russia in the WTO: the bear on a leash? J World Trade 47(6):1171–1201 Sinclair A (2010) International relations theory and international law: a critical approach. Cambridge University Press, Cambridge Tanaka Y (2006) Predictability and flexibility in the law of maritime delimitation. Hart Publishing, Oxford Tzeng P (2017) Ukraine v Russia and Philippines v China: Jurisdiction and legitimacy. Denver J Int Law Policy 46(1):1–19 Zou K, Ye Q (2017) Interpretation and application of Article 298 of the Law of the Sea Convention in recent Annex VII arbitrations: an appraisal. Ocean Dev Int Law 48:331–344 Zysk K (2016) Maritime security and international order at sea in the Arctic Ocean. In: Bekkevold JI, Till G (eds) International order at sea. Palgrave Macmillan, London, pp 141–174

Grant Kynaston Graduate student at the University of Cambridge, studying towards a Master of Philosophy in Classics. Undertook undergraduate studies in law and classics at the University of Sydney and holds a Master of Islamic Studies from Charles Sturt University. His legal research focuses on Islamic and other non-Western theories of international law and how these interact with modern regimes, particularly within the law of the sea. Currently a Student Director of the International Law Students Association. Rebecca Brown Currently undertaking a Master of Laws at the University of Cambridge, following completion of undergraduate studies in law and linguistics at the University of Sydney. Her research focuses on how international legal frameworks, such as treaty interpretation and dispute resolution, operate within regimes governing the environment and the oceans. Registered solicitor in New South Wales, Australia.

Part III

The Protection and Conservation of the Areas Beyond National Jurisdiction: Where Do We Stand?

Chapter 17

The Conservation and Sustainable Use of the Ocean in Areas Beyond National Jurisdiction: Where Do We Stand? Miguel de Serpa Soares

Abstract This chapter discusses recent efforts made at the United Nations to ensure the conservation and sustainable use of ocean resources, particularly those in areas beyond national jurisdiction. By highlighting the publication of the World Ocean Assessment I and the ongoing efforts to develop an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, the continuous engagement of the international community in improving the health of oceans while ensuring its productive capacity for the future is noted. As greater efforts would be needed for States to achieve the targets set out in Sustainable Development Goal 14, this chapter emphasizes that it would be critical to continue to raise awareness of the problems facing the oceans to a broader range of stakeholders.

1 Introduction There should not be a need to state that oceans are crucial for the existence of humankind on this planet.1 Their role in the regulation of the global climate and as a major sink of carbon dioxide is well known.2 Moreover, the conservation and sustainable use of the oceans and seas and their resources is critical to sustainable

The author acknowledges and thanks Mr. Carlos Iván Fuentes, Legal Officer, and Ms. Catherine Harwood, Associate Legal Officer, at the Division for Ocean Affairs and the Law of the Sea for their assistance in the research and preparation of this chapter. 1 2

See e.g. United Nations (2017), pp. 82–83. Id., p. 48.

M. de Serpa Soares (*) United Nations, Office of Legal Affairs, New York, NY, USA e-mail: [email protected] © Springer Nature Switzerland AG 2020 M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea, https://doi.org/10.1007/978-3-030-42671-2_17

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development, including in regard to poverty eradication, sustained economic growth, food security and creation of sustainable livelihoods and decent work.3 The state of the oceans has never been more perilous as their health continues to be adversely impacted by major simultaneous pressures. A recent report of the Secretary-General on oceans and the law of the sea listed the most important: pollution—including marine debris, especially plastics, physical degradation, increased overfishing, alien invasive species, underwater noise, and the impacts of climate change and ocean acidification.4 Whereas the whole world is affected, coastal communities and small island developing States (SIDS) remain highly vulnerable to the cumulative impact of such pressures—in particular, sea level rise, coastal erosion and storms—which threaten their very existence.5 Thus, the world now faces a “global emergency” over the oceans and this includes areas beyond national jurisdiction.6 Threats to the global environment must be taken seriously as the collective future and security of humankind is at stake. The strength and resilience of our marine ecosystems are not limitless, and urgent action is needed to protect and restore them. Although most direct contact with the oceans tends to occur in coastal areas, there is an increasing awareness of the impacts of human beings on areas beyond national jurisdiction. We are also more aware of the interdependence and interconnectedness of all areas of the ocean. Human activities such as shipping, fishing, oil and gas exploration, and deep-sea mining are taking place increasingly far from coasts. Moreover, even where no such activities are regularly undertaken—in the most remote areas of the world’s oceans—evidence of human activities is now increasingly visible, mainly in the form of floating debris. Such activities are having a toll on the health, strength and resilience of marine ecosystems of areas beyond national jurisdiction. Many of those who are not directly involved in ocean affairs ask frequently a question: What is the international community doing to address the conservation and sustainable use of ocean resources of areas beyond national jurisdiction? However, for those who are aware of the current state of oceans and of the legal framework for its conservation and sustainable use, the question is “what more could we be doing”? Now, what exactly is meant by the term “areas beyond national jurisdiction”? This term is used to refer to two maritime zones, whose scope is defined in the 1982 United Nations Convention on the Law of the Sea (UNCLOS), namely the high seas and the Area. The high seas is defined as “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State,

3

See e.g. United Nations General Assembly (2015). United Nations General Assembly (2018), para. 3. 5 See e.g. United Nations (2017), pp. 948–949. 6 United Nations (2018). 4

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or in the archipelagic waters of an archipelagic State.”7 The Area means the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.8 It is important to recall that, although these areas may be beyond national jurisdiction, vessels, and persons performing activities in these areas fall under the national jurisdiction of at least one State, usually the flag State of the vessel,9 and may also fall within the general competence of one or more intergovernmental organizations, depending on the activity or activities being undertaken.10 In that regard, there is a comprehensive international law regime applicable to the oceans, as well as internationally-agreed policy guidance, commitments, goals and targets adopted and implemented at the global, regional and national levels, under the framework of UNCLOS.11 These instruments are complemented by important commitments, such as the 2030 Agenda for Sustainable Development (2030 Agenda),12 in particular its Sustainable Development Goal (SDG) 14,13 as well as the annual resolutions of the General Assembly on oceans and the law of the sea and on sustainable fisheries.14 One of the greatest challenges lies in the policy, law and science interface. The importance of science cannot be overstated, as it should be guiding both legal and policy decisions. However, the lacuna in our knowledge and understanding of the oceans is nowhere as large as in the deep ocean.15 This chapter will address the efforts of the Member States of the United Nations at improving the state of the ocean, particularly in areas beyond national jurisdiction, at that forum. The strengths and challenges described above will be addressed to show the increasing attention to oceans at the United Nations, as well as the expanding leadership taken by the General Assembly in improving the knowledge about the health of marine ecosystems.

7

Art. 86, UNCLOS. Art. 1.1 (1), UNCLOS. 9 Art. 94, UNCLOS. 10 See for example the competence of the International Seabed Authority in accordance with UNCLOS, Art. 160. 11 See, for example, provisions related to pollution and dumping in UNCLOS, Arts 207–211. 12 United Nations General Assembly (2015). 13 “Conserve and sustainably use the oceans, seas and marine resources for sustainable development”. 14 See http://www.un.org/depts/los/general_assembly/general_assembly_resolutions.htm. 15 United Nations (2017), pp. 49–51. 8

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2 The Regular Process for Global Reporting and Assessment of the State of the Marine Environment, Including Socioeconomic Aspects To help provide a sound, scientific basis for decisions at the global level on the world’s oceans and seas, the United Nations General Assembly set up in 2004 a regular process to assess the environmental, economic and social aspects of the world’s oceans and seas, and periodically report on its assessments. A Group of Experts representing all regions of the world completed the first World Ocean Assessment in 2015.16 This is the only science-driven exercise in the oceans that is universal, representative of every region, and which counts the support of hundreds of scientists from all over the world. It is unique in that it aims to provide regular assessments at the global and supra-regional levels as well as an integrated view of environmental, economic and social aspects. The first Assessment identified major gaps in our knowledge that hamper efforts at sustainably managing human impacts on the ocean.17 It also sounded the clarion call that our ocean is facing so many major pressures that the limits of its carrying capacity are being, or in some cases, have been reached.18 An Abstract of the Assessment prepared for the Intergovernmental Conference on an international legally binding instrument under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction highlighted the fact that many parts of the ocean, including some areas beyond national jurisdiction, have been seriously degraded and that urgent action is needed for us to continue to enjoy the benefits from the ocean.19 As a matter of fact, we are continuously gaining deeper understanding of those benefits. In particular, the genetic and biochemical richness of the species found in deep-sea habitats is only starting to be fully appreciated. The potential impact of this richness in medicine and other fields cannot be underestimated.20

16

See https://www.un.org/regularprocess/content/first-world-ocean-assessment. United Nations (2017), pp. 38–39. 18 Id., p. 37. 19 See https://www.un.org/regularprocess/content/technical-abstracts. 20 United Nations (2017), p. 686. 17

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3 The Intergovernmental Conference on an International Legally Binding Instrument Under UNCLOS on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction There are several ongoing processes that are discussing the actions to be taken in the context of our collective goal and responsibility to conserve and sustainably use the oceans, seas and marine resources for sustainable development. It goes without saying that among the most important of these processes is the Intergovernmental Conference on an international legally binding instrument under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. The Conference, which was called for by the General Assembly after years of debates at an Ad Hoc working group on issues relating to the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction and following the recommendations of a Preparatory Committee, held its first session in New York, from 4 to 17 September 2018. The path to this first substantive debate in the framework of a United Nations Conference has been long but fruitful. Extensive discussions within the aforementioned processes established by the General Assembly preceded this milestone. They delved into related scientific, technical, economic, legal, environmental, socioeconomic and other aspects. They provided a rich and substantive ground from which the first session benefitted considerably. Discussions during the first substantive session of the Conference were even more enriching and detailed. An intensive in-depth exchange of views took place in the plenary as well as in four informal working groups, namely (1) the group on marine genetic resources, including questions on the sharing of benefits, (2) the group on measures such as area-based management tools, including marine protected areas, (3) the group on environmental impact assessments, and (4) the group on capacitybuilding and the transfer of marine technology. The reports presented to the plenary by the facilitators of these informal working groups were highly informative. On a positive note, it appears that there might have been a general convergence on a certain number of issues. Among them was the recognition by overwhelming majority of delegations of the central role of the Convention and the role of other existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. The collegial environment, high level of energy and the spirit of cooperation at the session was reflective of the high importance that the international community attaches to the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. Following the first session of the Conference, there is reason for a cautious optimism. The President of the Conference, Ambassador Rena Lee of Singapore, undertook to prepare another text for the second session, which will be reflective of

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the exchanges during the first session, present options and allow for a focused discussion at the second session. This is a clear sign that the process is advancing. Notwithstanding the fact that positions of States are not yet aligned on many important issues, there is hope and confidence in that this Conference will ultimately be fruitful, and lead to the development of an instrument that all delegations can agree to, one that makes a strong contribution to the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction and to the health of the ocean.

4 Conservation and Sustainable Use of High Seas Fishing Maritime activities serve as engines of sustainable development, providing important resources, livelihoods, food and nutrition. The health of the ocean ecosystems in which they are conducted is critical for a number of activities, such as fishing. High seas fishing remains a significant contributor to the global economy and a potential engine for sustainable development. Although the great majority of fish stocks are located within 200 nautical miles of the coast, high seas fish stocks, including straddling fish stocks and highly migratory fish stocks, constitute some of the most important fish stocks. As fishing remains one of the principal human activities on the high seas, the conservation and sustainable use of the marine living resources of the high seas remains vital to ensuring the health and resilience of marine ecosystems.21 The international legal framework for fisheries management, both within and beyond areas of national jurisdiction, is made up of a multitude of global, regional and bilateral instruments. While the Convention can be seen as the cornerstone of these instruments, providing the international legal basis for the protection and sustainable use of living resources of the world’s oceans,22 other international instruments have progressed to address prominent and emerging fisheries challenges.

4.1

United Nations Fish Stocks Agreement

The United Nations Agreement for the Implementation of the Provisions of the Convention relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (United Nations Fish Stocks Agreement) emerged in 1995 to better define high seas fisheries management, by setting out principles for the conservation and management of those fish stocks, establishing that such 21 22

E.g., Spijkers and Jevglevskaja (2013). E.g., A/RES/72/73, Preamble.

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management must be based on the precautionary approach and the best available scientific information.23 The United Nations Fish Stocks Agreement elaborates the fundamental principle, established in the Convention,24 that States should cooperate to ensure conservation and promote the objective of the optimum utilization of fisheries resources both within and beyond the exclusive economic zone. The Agreement provides: “Coastal States and States fishing on the high seas shall, in accordance with the Convention, pursue cooperation in relation to straddling fish stocks and highly migratory fish stocks either directly or through appropriate subregional or regional fisheries management organizations or arrangements, taking into account the specific characteristics of the subregion or region, to ensure effective conservation and management of such stocks.”25 Functions of these organizations or arrangements are provided for explicitly in the Agreement and they are overarching. For instance, States are to agree on and comply with conservation and management measures to ensure the long-term sustainability of straddling fish stocks and highly migratory fish stocks;26 adopt and apply any generally recommended international minimum standards for the responsible conduct of fishing operations;27 and obtain and evaluate scientific advice, review the status of the stocks and assess the impact of fishing on non-target and associated or dependent species.28 Additionally, the Agreement provides for a formal mechanism in the form of a Review Conference to assess the effectiveness of the Agreement in securing the conservation and management of straddling and highly migratory fish stocks by reviewing and assessing the adequacy of its provisions and, if necessary, propose means of strengthening the substance and methods of implementation of those provisions in order better to address any continuing problems in the conservation and management of those stocks.29 In this regard, the resumed Review Conference held in 2016 had agreed to keep the Agreement under review through the resumption of the Conference.30 At the

23

United Nations Agreement for the Implementation of the Provisions of the Convention relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 1995 (UNFSA), Arts 5(b) and 5(c). 24 Art. 118, UNCLOS. 25 UNFSA, Art. 8(1). 26 Id., Art. 10(a). 27 Id., Art. 10(c). 28 Id., Art. 10(d). 29 Id., Art. 36(1) and (2). 30 Report of the resumed Review Conference on the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, A/CONF.210/2016/5, 1 August 2016, para. 185. See also id., Annex, Outcome of the resumed Review Conference, para. 15(b).

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Informal Consultations of States Parties to the Agreement held in May 2018, many delegations expressed their support for resuming the Conference in 2021.31

4.2

Sustainable Development Goals

Among the most recent key developments relevant to fisheries is the Agenda 203032 with its SDGs. Several targets of SDG 14 (Conserve and sustainably use the oceans, seas and marine resources for sustainable development) call for specific actions in fisheries, such as to effectively regulate harvesting; end overfishing and illegal, unreported and unregulated fishing; address fisheries subsidies; increase economic benefits from sustainable management of fisheries and aquaculture; provide access for small-scale fishers to resources and markets; and implement provisions of the Convention.33 Other targets of SDG 14 cover marine pollution prevention and reduction,34 and the management and protection of marine and coastal ecosystems,35 all of which are also important priorities for sustainable fisheries within and beyond areas of national jurisdiction.

5 Conservation and Sustainable Use of the Seabed Turning to the conservation and sustainable use of the seabed, UNCLOS already established a regime covering the part of the seabed and ocean floor and its subsoil which lies beyond the limits of national jurisdiction, known as the “Area”.36 As provided for by UNCLOS, the International Seabed Authority (ISA) is the organization through which States Parties organize and control activities in the Area, particularly with a view to administering its resources,37 but also for the effective

31 Thirteenth round of Informal Consultations of States Parties to the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, ICSP13/UNFSA/ INF.2, July 2018, para. 85. 32 Transforming our World: the 2030 Agenda for Sustainable Development, A/RES/70/1, 25 September 2015. 33 Id., Goal 14. Conserve and sustainably use the oceans, seas and marine resources for sustainable development, paras. 14.4, 14.6, 14.7, 14.b and 14.c. 34 Id., para. 14.1. 35 Id., para. 14.2. 36 Art. 1(1), UNCLOS. 37 Art. 157(1), UNCLOS.

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protection of the marine environment38 and the conduct of marine scientific research.39 UNCLOS could not possibly regulate in full detail matters pertaining to the protection and preservation of the marine environment in the Area, as the extent of technical methods and challenges associated with ocean mining were unknown at the time of its conclusion. For this reason, the ISA was given the task to adopt appropriate rules, regulations and procedures to fulfil its mandate.40 The recent developments at the ISA in respect of the so-called “Mining Code”,41 including the Exploitation Regulations and, eventually the Environmental Regulations and the Seabed Mining Directorate Regulations, demonstrate the important role of this international body in international rule-making. In discussing the current state of the law in regard to conservation and sustainable use of the oceans in areas beyond national jurisdiction, we cannot ignore the importance of the 2011 Advisory Opinion by the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea on the responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area.42 Some considerations in that advisory opinion have made their way to the draft regulations and will continue to provide useful clarifications in the future, including on notions related to liability and attribution.43 However, concerns may arise as to liability and compensation in cases of transboundary damage arising in the Area and moving to national jurisdictions, or vice versa. This goes well beyond the environmental risks of the mining activity itself, and includes all hazards associated with transport and mooring of mining equipment to the harvesting site, and those related to the processing of minerals and waste management. As the risks are diverse and the potential damage may be indiscriminate, different legal regimes, both in terms of maritime zones and of uses of the ocean, may have a role to play. Such concerns are also present in the specific case of the continental shelf beyond 200 nautical miles. There is a delicate balance to be struck between conservation and sustainable use, particularly given that sovereign rights over the resources of the continental shelf beyond 200 nautical miles do not include rights over the water column above. Coastal States parties to UNCLOS have invested a significant amount of resources when preparing submissions to the Commission on the Limits of the Continental Shelf.44 The international community, through the United Nations and, specifically, the United Nations Office of Legal Affairs, has provided the

38

Art. 145, UNCLOS. Art. 143(2), UNCLOS. 40 Art. 145, UNCLOS. 41 See http://www.isa.org.jm/mining-code. 42 Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, p. 10. 43 See, e.g., Tanaka (2013). 44 See http://www.un.org/Depts/los/clcs_new/clcs_home.htm. 39

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Commission with appropriate support in terms of highly qualified human resources, premises, software and hardware. It is therefore a legitimate concern of States that the future potential binding instrument on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction would not impede in its effects a responsible exploitation of the resources of the ocean floor and subsoil. In these, as well as in many other issues related to the oceans, the notion of sustainable development becomes increasingly important. That is, to look at developmental, environmental, socio-economic and financial concerns together and as a whole, with a view to meeting present needs without compromising the ability of future generations to do so as well. While the continuous work of the ISA is followed with increasing interest, there is also a growing concern to look at the bigger picture. The understanding of a pressing need for greater cooperation and coordination towards coherent action for the conservation and sustainable use of the oceans should permeate all international rule or policy making processes. The organizations in the United Nations system, together with the ISA, seek to enhance the coordination, coherence and effectiveness of competent organizations through an inter-agency mechanism—UN Oceans.

6 Conclusion This chapter has focused mainly on answering the question “where do we stand?”, in other words, what is the international community presently doing to address the conservation and sustainable use of the oceans in areas beyond national jurisdiction? The question “what more could we be doing?” remains an open one, in respect of which the international community is still seeking answers. At the conceptual level, it is known that the implementation of the challenging goals and commitments, binding and non-binding, is key to ensuring the sustainable future of the oceans. However, this will not be possible without enhanced international cooperation and ensuring that oceans and seas remain reserved for peaceful purposes. Nor will it be possible without nurturing and further developing a stable, comprehensive legal framework as enshrined in UNCLOS and related agreements and instruments. The message for the future is clear and is equally valid for maritime zones under national jurisdiction as well as for areas beyond them: with an ever-increasing number of competing activities in the oceans and with bodies addressing ocean issues predominantly from a sectoral perspective at the global, regional and national levels, the need for a coordinated and integrated approach to all ocean-related issues is imperative. Much greater efforts are also needed by States to achieve the goals and targets set out in SDG 14, including through enhanced cooperation and coordination at the national and international levels and increased capacity-building and transfer of technology to developing States. Finally, sustainable development of oceans and seas is not only the responsibility of States, but rather a shared responsibility of all

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relevant stakeholders. It is critical therefore to continue to raise awareness of the problems facing oceans to a broader range of stakeholders and to promote individual and community stewardship of the oceans. In this regard, human and socioeconomic factors must be placed at the forefront, including through capacitybuilding. To achieve our common objectives, as well as the commitments in SDG 14 and other ocean-related SDGs, the full and effective implementation of the legal framework for oceans in the Convention and related instruments at the global, regional and national levels is crucial.

References Spijkers O, Jevglevskaja N (2013) Sustainable development and high seas fisheries. Utrecht Law Rev 9(1):24–37 Tanaka Y (2013) Obligations and liability of sponsoring states concerning activities in the area: reflections on the ITLOS advisory opinion of 1 February 2011. Neth Int Law Rev 60 (2):205–230 United Nations (ed) (2017) The first global integrated marine assessment: World Ocean Assessment I. Cambridge University Press, Cambridge

Documents Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, 4 August 1995, 2167 UNTS 3, Registration Number 37924 Division for Ocean Affairs and the Law of the Sea, ‘Commission on the Limits of the Continental Shelf’. http://www.un.org/Depts/los/clcs_new/clcs_home.htm International Seabed Authority, ‘Mining Code’. http://www.isa.org.jm/mining-code Report of the resumed Review Conference on the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, A/CONF.210/2016/5, 1 August 2016 Thirteenth round of Informal Consultations of States Parties to the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, ICSP13/UNFSA/ INF.2, 31 July 2018 Transforming our World: the 2030 Agenda for Sustainable Development, A/RES/70/1, 25 September 2015 United Nations (2018) Comments of the UN Secretary-General to the 44th G7 Summit. https:// www.un.org/sg/en/content/sg/speeches/2018-06-09/secretary-general-comments-44th-g7summit United Nations Agreement for the Implementation of the Provisions of the Convention relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 1995 United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, 1833 UNTS 3, Registration Number 31363

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United Nations General Assembly (2015) Transforming our world: the 2030 Agenda for Sustainable Development, Resolution adopted by the General Assembly on 25 September 2015 (A/RES/70/71) United Nations General Assembly (2017) Oceans and the law of the sea, Resolution adopted by the General Assembly on 5 December 2017 (A/RES/72/73) United Nations General Assembly (2018) Oceans and the law of the sea, Report of the SecretaryGeneral (A/73/368)

Miguel de Serpa Soares Appointed as Under-Secretary-General for Legal Affairs and United Nations Legal Counsel in September 2013. Designated Focal Point for UN-Oceans, an inter-agency mechanism to strengthen and promote coordination and coherence of United Nations system activities related to ocean and coastal areas. He was also appointed by the Secretary-General of the United Nations as Secretary-General of the Intergovernmental Conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.

Chapter 18

Regulating the Common Heritage of Mankind: Challenges in Developing a Mining Code for the Area Hannah Lily and Stephen E. Roady

Abstract The International Seabed Authority has a challenging dual role: to develop the mineral resources of the seabed beyond national jurisdiction, whilst also protecting and preserving the marine environment from the effects of seabed mining. Setting rules, regulations and procedures for environmental management will be a key means of discharging that responsibility. This chapter identifies where there appear to be gaps within the current system, with particular attention to environmental impact assessment procedures. The authors consider the new exploitation regulations currently under negotiation, and identify opportunities to bolster such rules better to enable the International Seabed Authority to meet its environmental protection mandate.

1 Introduction The UN Convention on the Law of the Sea (‘UNCLOS’) gives the International Seabed Authority (‘ISA’) a dual role. The ISA is required to develop the seabed lying beyond national jurisdiction (‘the Area’)1 and its resources for the benefit of man-

The authors would like to thank the following individuals for review and comments on earlier drafts of this chapter: Dr. Chilenye Nwapi, Ms. Alison Swaddling and Dr. Daniel Wilde of the Commonwealth Secretariat; Professor Neil Craik of University of Waterloo; and Andrew Friedman of The Pew Charitable Trusts. Views expressed herein are not necessarily representative of the views of The Pew Charitable Trusts. 1

Art. 1(1), UNCLOS.

H. Lily (*) The Pew Charitable Trusts, London, UK S. E. Roady Duke University, School of Law, Durham, NC, USA e-mail: [email protected] © Springer Nature Switzerland AG 2020 M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea, https://doi.org/10.1007/978-3-030-42671-2_18

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kind as a whole2 while also ensuring the effective protection for the marine environment from harmful effects which may arise from such activities.3 To deliver on its environmental protection mandate, the ISA must adopt appropriate rules, regulations and procedures for inter alia: the control of pollution and other hazards to the marine environment, the prevention of interference with the ecological balance of the marine environment, the conservation of the natural resources of the Area, and the prevention of damage to the living resources of the marine environment.4 The ISA carries out its environmental duties through several internal decisionmaking organs: (1) the Assembly (comprising all States signatory to UNCLOS); (2) the Council (comprising a subset of 36 States elected by the Assembly); and (3) the Legal and Technical Commission (‘LTC’) (currently 30 experts appointed in an individual capacity by the Council). The LTC engages in the initial development of environmental rules, regulations and procedures with respect to exploration and exploitation, and forwards them to the Council for review and approval. In turn, the Council recommends an approved package of rules to the Assembly for final adoption. The Assembly has ultimate power to take general policy decisions for the ISA, including the power to adopt the regulations regarding environmental standards for exploration and exploitation recommended to it by the Council. All of this work is facilitated and supported by the ISA Secretariat, which is governed by the ISA Secretary General. Applications for contracts (in the form of ‘plans of work’) are reviewed by the LTC, who then pass to the Council an appropriate recommendation.5 UNCLOS specifies that contracts can be awarded only to companies that are States parties or entities, or are sponsored by the State of the company’s nationality or which otherwise exercises ‘effective control’ over the contractor.6 Between 2001 and 2019, a total of 30 exploration contracts were issued by the ISA; each of them remain in force. These contracts cover three different types of deposits (18 for nodules, 7 for seafloor massive sulphides, and 5 for cobalt-rich crusts).7 The

2

Art. 140, UNCLOS. Art. 145, UNCLOS. 44 Arts 145 and 209, Annex III, Art. 3, of UNCLOS; and Annex, section 1(5)(g) of 1994 Agreement. 5 Art. 165(2)(b), UNCLOS. 6 Art. 153, UNCLOS. 7 See https://www.isa.org.jm/deep-seabed-minerals-contractors. 3

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Clarion-Clipperton Fracture Zone of the Pacific Ocean has been a particular target for contractors (Fig. 18.1). Due to different geological and ecological features, there will be different environmental management considerations for each deposit type.8 ‘Exploration’9 involves activities (such as surveys, data collection, and analysis) that are a precursor to a subsequent mining phase, which the ISA terms ‘Exploitation’. Regulations for Exploitation are currently under negotiation at the ISA.10 This chapter examines the ISA rules and structures that are in place to manage the environmental dimensions of existing exploration contracts, as well as those proposed for the future exploitation phase, and seeks to identify possible gaps that could affect the ability of the ISA to comply with its environmental protection duties that are explicitly required under UNCLOS.

2 Current Environmental Management (Exploration Regime) 2.1

Environmental Regulations

While there are no separate ISA ‘environmental regulations’, the ISA currently addresses environmental issues in three sets of Exploration Regulations,11 one for each of the three different types of mineral deposits. These are supplemented by a document issued in 2013 by the ISA’s advisory body, the Legal and Technical Commission (‘LTC’) entitled ‘Recommendations for the guidance of contractors for the assessment of the possible environmental impacts arising from exploration for marine minerals in the Area’12 (‘the Recommendations’). Environmental aspects

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SPC (2013). Exploration is defined by the ISA in its Exploration Regulations as ‘searching for deposits [of seabed minerals] in the Area with exclusive rights, the analysis of such deposits, the use and testing of recovery systems and equipment, processing facilities and transportation systems and the carrying out of studies of the environmental, technical, economic, commercial and other appropriate factors that must be taken into account in exploitation’. See ISBA/19/C/17 (22 July 2013), “Decision of the Council of the International Seabed Authority relating to amendments to the Regulations on prospecting and Exploration for Polymetallic Nodules in the Area and related matters” Annex, Part I, Regulation 1.3. (b). 10 For more details and copies of relevant reports, stakeholder submissions, and iterations of the draft Regulations, see https://www.isa.org.jm/legal-instruments/ongoing-development-regulationsexploitation-mineral-resources-area. 11 Available at https://www.isa.org.jm/mining-code/Regulations. 12 Available at https://ran-s3.s3.amazonaws.com/isa.org.jm/s3fs-public/files/documents/isba-19ltc8_0.pdf. 9

Fig. 18.1 Map of the exploration contract areas, and Areas of Particular Environmental Interest, in the Clarion Clipperton Fracture Zone, International Seabed Authority 2018

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of the Regulations and the Recommendations are broadly summarised in Table 18.1.13

2.2

Information Sharing

Due to a lack of publicly-available information, it is difficult independently to assess the extent to which contractors are complying with the existing ISA Regulations and Recommendations. The environmental management plans contained in the exploration contracts are not published, nor is their implementation specifically reported on to the Council by the LTC. There have been repeated delays in the launch of a digital database and web portal that will provide access to the environmental data held by the ISA (provided by contractors).14 The ISA’s LTC provides a very brief annual contractor compliance monitoring report to the ISA’s internal decision-making body, the Council. As the ISA currently lacks any independent inspection mechanism, this LTC report is based on information provided to the ISA by the contractors themselves.15 Even so, the LTC reports often describe divergence in contractor performance, and at times raise alarm bells with regard to environmental compliance.16 But these reports provide very scant information, and give no details as to the incidents of non-compliance, the identity of the transgressors, or any repercussions. This lack of information-sharing about contractor environmental performance and compliance applies not only to parties external to the ISA, but also internally. Thus, members of the ISA Council17 (and possibly sponsoring States also)18 at present find themselves without access to data regarding such questions. This suggests a limited ability to conduct environmental monitoring or enforcement of standards or requirements by either the ISA or by State sponsors of seabed mining, despite being the principal regulators of the contractors’ activities. Such an

13

These points are well covered in Durden et al. (2018). https://www.isa.org.jm/news/international-seabed-authority-secretariat-updates-member-statesprogress-data-management. The database was still under wraps at the time of writing, in early 2019. 15 Para. 4, ISBA/24/LTC/3, https://ran-s3.s3.amazonaws.com/isa.org.jm/s3fs-public/files/docu ments/isba24-ltc3-e.pdf. 16 For example, what inference should be drawn from the LTC’s report to Council of 2015: “Contractors are reminded that prior environmental impact assessments must be agreed with the Authority before dredging or other potentially harmful sampling activities are conducted in sulphide and crusts exploration areas. Contractors are required to verify and report that no serious harm has been caused to ecosystems by their activities in these areas.”? 17 Para. 12, ISBA/23/C/18, https://undocs.org/ISBA/23/C/18. 18 A Council member (and a sponsoring State) requested the ISA to advise the sponsoring State in the event of contractor non-compliance during Council deliberations on 19 July 2018, https://rans3.s3.amazonaws.com/isa.org.jm/s3fs-public/files/documents/enb25163e.pdf. 14

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Table 18.1 Summary of environmental management content of the ISA Exploration Regulations and the LTC ‘Recommendations for the guidance of contractors for the assessment of the possible environmental impacts arising from exploration for marine minerals in the Area’, respectively Exploration Regulations Contractors are required to gather environmental baseline studies and to establish an impacts monitoring and reporting programme Application of the precautionary approach is required (‘as far as reasonably practicable’ in relation to the contractor) Serious harmful effects on vulnerable marine ecosystems are prohibited Reference areasa for future mining must be identified Cooperation is required between contractors, States and the ISA in monitoring and evaluating environmental impacts of mining Data necessary for the ISA to formulate rules concerning protection of the environment are not to be deemed confidential Contractors should ‘take into account’ LTC Recommendations on environmental baselines, and should ‘observe, as far as reasonably practicable’ any LTC recommendations

Recommendations for the guidance of contractors Some detail as to baseline data requirements, with explanatory comments List of activities that are permitted without requiring a prior environmental impact assessment Description of activities that are not permitted without a prior environmental impact assessment Environmental monitoring information to be provided to the ISA by a Contractor before, during and after an exploration activity

These “reference areas” are separated into two types: impact reference zones (where mining impacts will be seen); and preservation reference zones (where mining impacts should not be seen, and so can act as a control site), which together will be used to monitor impacts of mining

a

information gap could hinder the ISA’s ability to meet its duty to protect and preserve the marine environment.

2.3

Institutional Capacity

The disjunction identified above between information-holders (contractor, Secretariat and LTC) and regulatory decision-makers (Council, sponsoring State, and Assembly), in relation to contractor monitoring, prompts the question: who plays the role of the ‘Environmental Protection Agency’ (permitting, monitoring and enforcement body) within the ISA? Within national jurisdictions, the usual model is for a named government agency to have statutory responsibility for an environmental protection function, which would include: requiring environmental impact assessment, taking permitting decisions in relation to a planned project, monitoring environment-impacting projects that are permitted, and enforcing compliance with conditions attached to the

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permitting decision.19 Where there are advisory bodies within national jurisdictions, these are usually constituted via clear policies establishing the composition of their membership (election rules, expertise requirements, gender balance, length of term, etc.) The ISA Secretariat has an Office of Environmental Management and Mineral Resources, with a small staff. The role of this team as currently described in published material is not an environmental monitoring and enforcement one.20 There is some environmental science expertise within the ISA’s LTC.21 But in any event, neither the Secretariat nor the LTC has decision-making authority or compliance powers.22 The Council—which does have relevant powers—is a body of government officials (largely diplomats, not technical experts),23 attending a UN-style meeting once or twice a year, receiving limited regulatory information, and operating under rules requiring it to reach decisions by consensus.24 These gaps in the ISA’s institutional capacity to operate as a fit-for-purpose environmental regulator25 could undermine the ability of the ISA to comply with its UNCLOS duties to protect the environment of the Area.26

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Craik (2017). Also supra n. 13. ISA website: “The Office of Environmental Management and Mineral Resources (OEMMR) is the economic [sic] arm of the Authority’s Secretariat providing scientific and technical inputs in the preparation of rules, regulations and procedures for the conduct of activities in the Area. The office is also responsible for the development and maintenance of information technology facilities to support needs of the Authority and the central data repository resources of the international seabed area and endeavours to promote and encourage the conduct of marine scientific research in the Area, producing and distributing publications on the work of the Authority and monitoring trends and developments of deep seabed mining activities relating to the prospecting and exploration of the Area including areas reserved for the Authority.” See https://www.isa.org.jm/authority/officeenvironmental-management-and-mineral-resources. 21 It is not easy to access information about the professional qualification and expertise of the LTC members (and CVs previously published on the ISA website had been removed at the time of writing); but independent research suggests that perhaps three of the thirty LTC members specialise in ecological science. Other commentators note the ‘current shortage of environmental expertise’ on the LTC [New Zealand submission to the ISA: https://ran-s3.s3.amazonaws.com/isa.org.jm/ s3fspublic/documents/EN/Regs/2018/Comments/NZ.pdf]. 22 Arts 166 and 165 of UNCLOS, respectively. 23 An example of the composition of Government delegations at the ISA’s Annual Sessions can be seen here: https://ran-s3.s3.amazonaws.com/isa.org.jm/s3fs-public/files/documents/isba-24a-crp4_0.pdf. 24 Arts 161 and 162, UNCLOS. 25 Supra n. 13, paragraph 6.4. For more discussion on this point, see the workshop papers from the August 2017 event ‘From Paper to Practice: Implementing the Mining Code’, available at: https:// www.resolve.ngo/site-dsm/paper_to_practice.htm. 26 Bradley and Swaddling (2018). 20

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Regional Environmental Management

Regional environmental management by the ISA was not specifically reflected in Part XI of UNCLOS, though similar area-based mechanisms have been a feature of many later international and regional instruments (for example, the 1992 Convention on Biological Diversity).27 The ISA has recognised its importance,28 and started a process of developing Regional Environmental Management Plans (REMPs) for regions within the Area in which future mining is contemplated. Since 2012 there has been an Environmental Management Plan in place for the Clarion-Clipperton Fracture Zone (CCZ).29 This includes the identification of nine 400 km by 400 km ‘Areas of Particular Environmental Interest’ (APEIs), calculated to be bio-geographically representative of the full range of habitats, biodiversity and ecosystem structure and function within the region. APEIs are set-aside as off-limits to potential mining activities for the purpose of the protection and preservation of the marine environment, although this appears to be envisioned as a temporary measure only.30 This CCZ plan also includes other regulatory style aspects, e.g., requirements for contractors to apply the principles of ISO 14001.33 to the development of their site-specific environmental management plans, and to designate impact and preservation reference zones.31 There is a process now afoot at the ISA to review the CCZ plan in light of new data and to develop REMPs for other locations where exploration has already commenced.32 This appears to present great opportunity, both for international cooperation and sharing of data and expertise in the process, as well as for setting environmental objectives and conservation measures, and managing cumulative impacts, in keeping with the ISA’s environmental protection mandate. For example, a REMP for mid-ocean ridges in the Atlantic could present an opportunity for the ISA to declare all active hydrothermal vent sites closed to mining.33 However, concerns about the REMPs in the interim might include: (i) that APEIs are being identified only after exploration sites have been allocated to contractors, and so the choice of location is constrained by a factor that is not objective or scientific34 (see Fig. 18.1, above), (ii) that REMPs do not have the status of 27

The Convention on Biological Diversity of 5 June 1992 (1760 U.N.T.S. 69). As reflected in Strategic Direction 3.2 of the ISA’s Strategic Plan 2019–2023, copy available at: https://ran-s3.s3.amazonaws.com/isa.org.jm/s3fs-public/files/documents/isba24_a4-en.pdf. 29 ISBA/17/LTC/7, ‘Environmental Management Plan for the Clarion Clipperton Zone’, available at: https://www.isa.org.jm/documents/isba17ltc7, and approved by Council decision ISBA/18/c/22, available at: https://www.isa.org.jm/documents/isba18c22. 30 The Council decision in 2012 was that no application for any seabed mineral activity would be approved within the APEIs identified in the CCZ REMP ‘for a period of five years from the date of the present decision or until further review by the LTC or the Council’ (ISBA/18/C/22). 31 Supra, n. 30. 32 See the strategy paper ISBA/24/3/C, endorsed by the Council in March 2018: https://ran-s3.s3. amazonaws.com/isa.org.jm/s3fs-public/files/documents/isba24-c3-e.pdf. 33 Van Dover et al. (2018). 34 Wedding et al. (2013). 28

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mandatory ISA ‘rules’, and are not sufficiently bolstered by ISA regulations to make their provisions binding,35 and (iii) that agreeing a REMP and management measures (including APEIs) is not the end of the process; instead, ongoing evaluation and monitoring (and ability to adjust the REMP upon receipt of new data) is required,36 which would require a legal framework, scientific capacity and financial resources to make it happen. Each of these REMP issues suggests gaps in the ISA rules that may undermine the ability of the ISA to comply with its UNCLOS duties to protect the environment of the Area.

2.5

Environmental Impact Assessment

Environmental impact assessment (‘EIA’) will be an essential part of the ISA regime as a tool to inform decision-making about whether, when, and how to proceed with exploitation activities in the Area.37 Since the 1970s, EIAs have become a staple regulatory process across most jurisdictions globally. Comparative analysis shows that within this body of practice, a similar set of generic elements or stages can be identified38: 1) a screening process that determines which activities will be subject to an environmental assessment; 2) a scoping process that identifies the specific environmental issues or concerns to be included in the assessment, including determining the range of alternatives that will also be subject to assessment; 3) the preparation of the environmental impact study; 4) consultation and participation with the public and other agencies; 5) the decision respecting the activity under assessment; and 6) follow-up measures that may be required, such as monitoring of effects, during the project and after it has been completed. Somewhat surprisingly, very few of these stages (if any) are currently contained in ISA Regulations. This may be due to an expectation that such matters will be covered in the rules for exploitation (not exploration), given that this is the phase at which the highest-impact activities will occur. But such reliance may be misplaced (see below, and Sect. 3). 35 This point was noted in several stakeholder responses to the draft Exploitation Regulations, for example, Australia, Germany, Nauru, United Kingdom. Available at: https://ran-s3.s3.amazonaws. com/isa.org.jm/s3fs-public/files/documents/comments_0.pdf. 36 Amon and Smith ‘How to Protect the Deep Sea: Why regional environmental management plans are important’ Pew Charitable Trusts, December 2018, available at: https://www.pewtrusts.org/en/ research-and-analysis/fact-sheets/2018/12/how-to-protect-the-deep-sea. 37 See, for example, Art.165(2)(d) and (f), and Art. 206 of UNCLOS; and Annex, Section 1, para. 7 of the 1994 Agreement; and Regulation 20 of the Exploration Regulations. 38 Supra, n. 19.

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Furthermore, two EIA Reports39 were submitted to the ISA in 2018 pertaining to the in-situ trial of a new nodule-collecting machine, under exploration contracts. These EIA Reports themselves noted that they were prepared in the absence of any ISA rules for the conduct and assessment of EIAs, and development of environmental monitoring and management plans, under exploration.40 The contractors preparing those EIA Reports indicate they have sought to follow the Recommendations,41 although the Recommendations are not mandatory42 (as currently drafted, the Recommendations are to be observed by contractors only ‘as far as reasonably practicable’).43 In any event, the Recommendations do not inform contractors on key factors for the preparation of an EIA, such as: what minimum information should be covered by an EIA report, what constitutes adequate baseline data, and whom should the contractors consult in preparing the EIA? It is also noteworthy that no formal process has been outlined within the ISA’s current rules, regulations and procedures for the review and evaluation of an EIA report, and that there is no specific mandate for the ISA to take an environmental permitting decision. This lack of structure and process raises a host of fundamental questions: Once an EIA report is received by ISA Secretary-General, what happens to it? Who is reviewing EIA reports on behalf of the ISA? Whose views or expertise will be sought in that review? Who is taking a decision on the basis of the EIA report? What is the question they are deciding, and against what criteria? What is the timeframe for this to happen?

39 The terminology ‘EIA Report’ is taken from the ISA (see: https://www.isa.org.jm/environmentalimpact-assessments) which is perhaps used by the ISA for the outcome documents from EIAs conducted under exploration, rather than the more usual ‘Environmental Impact Statement’ (or EIS), perhaps to differentiate from the EIS process and requirements contained in the draft Exploitation Regulations. 40 GSR Environmental Impact Statement April 2018, https://ran-s3.s3.amazonaws.com/isa.org.jm/ s3fs-public/documents/EN/EIA/GSR/GSR-EIS.pdf and BGR Environmental Impact Assessment Report February 2018, https://ran-s3.s3.amazonaws.com/isa.org.jm/s3fs-public/documents/EN/ EIA/BGR/EIA_BGR.pdf both state: “There are no distinct ISA regulations and guidelines for the development of an EIA during the exploration phase”. BGR further states “There is no obligation for public consultation at this stage of the process (communication with the Secretary-General of the ISA), neither are there any guidelines or templates available that go beyond [LTC Recommendations] to guide contractors in developing impact assessments during the exploration phase. This means that specific requirements regarding the environmental data to be provided and common standards for impact-related environmental surveys and monitoring plans are not available at this point in time.” 41 Id. p. 21 (GSR) and p. 17 (BGR). 42 Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area and related matters, July 2013 ISBA/19/C/17, regulation 38; and Annex IV section 13(1). 43 There has been some suggestion from the ISA Secretariat that the Recommendations are seen as having the status of ‘regulations’; see Braeger et al. (2020, authored by ISA Secretariat staff), in which LTC Recommendations and the CCZ REMP are described as ‘regulations’ and ‘mandatory’. A similar interpretation may explain a recent published statement by the ISA Secretary-General that “The International Seabed Authority environmental regulations are already extensive”, in Lodge and Verlaan (2018).

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In any event, the status of current procedures, which has been confirmed by the ISA Secretariat,44 is that: the contractor will receive some technical feedback from the ISA’s LTC (via the Secretariat), which the contractor may take into account, and will then proceed. There is no consultation process,45 and—crucially—no permitting process as such. This appears inadequate to meet the requirement that ‘to be effective, the EIA process should be fully integrated into the ISA contract granting decision making process and accompanied by effective regulatory and management control’.46 Surprisingly, the Council has no role, and there is no specific decision taken by any organ of the ISA in relation to the proposed activity and EIA. This process raises the serious question whether the ISA has the ability to impose restrictions on the proposed activity or to prohibit it. In summary then, under the existing exploration regime, the submission of some kind of EIA report (the content largely at the discretion of the contractor) is a procedural recommendation (only), in certain circumstances. The content of that EIA is not reviewed by the decision-making bodies within the ISA, nor does it form evidence or substance on which any permitting or regulatory action can be taken. The ISA regime currently in place therefore departs widely from the six-stage EIA process established as good practice world-wide.47 Such significant regulatory gaps would appear to interfere materially with the ability of the ISA to protect the marine environment as required under UNCLOS Article 145. One reason for this surprising lacuna may be a presumption that EIA processes will instead be set and enforced by sponsoring States. However, a review of existing domestic sponsorship laws currently in force48 does not show evidence that sponsoring States in fact have such rules in place at the national level to cover activities occuring in the Area. Even if such rules are put in place, unless the ISA requires harmonisation, relying upon the individual domestic laws for EIA across twenty different sponsoring State would lead to a patchwork of different and inconsistent processes and standards. There may also have been an historic presumption that EIAs and environmental permitting decisions would occur under Exploitation contracts or at the point of application for Exploitation, not under Exploration contracts. This presumption has now been rebutted by the two EIA reports referenced above; nor does such a

Email correspondence on file, with staff members of the ISA Secretariat, October 2018. The two EIA reports submitted recently by contractors for a technology-testing activity under an exploration licence, have been published on the ISA website (https://www.isa.org.jm/environmen tal-impact-assessments) implying some degree of transparency. But there is no accompanying note. It is not clear whether these are open for consultation (and if so, by whom, to whom, by what mechanism, and in what timeframe submissions will be received). 46 Supra, n. 13. 47 The only possible exceptions are a partial (non-mandatory and non-detailed) stage 1 (the screening process that determines which activities will be subject to an environment assessment) and stage 3 (the fact that an EIA report is prepared). There appears to be no requirement in the ISA exploration regime for stage 2 (scoping), stage 3 (consultation and participation), stage 4 (decision) or stage 5 (follow-up measures). 48 For example, Lily (2018). 44 45

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presumption appear to be borne out by the draft Exploitation Regulations, discussed under the next Sect. 3.

3 Environmental Management Looking Ahead (Exploitation Regime) 3.1

Development of New Exploitation Regulations

The ISA’s Exploitation Regulations for the Area are currently under negotiation, and this process thus affords an opportunity to build upon, and fill any gaps left by, the exploration regime. The ISA has followed a transparent, participatory process thus far in its development of the Exploitation Regulations—consulting widely at every step, and repeatedly reviewing the documents on the basis of the inputs received. All of the drafts can be found online, as well as the stakeholder responses.49 There were no restrictions imposed upon who could submit a response, and the stakeholder responses show strong stakeholder participation, and increasing engagement in particular by member governments.50 The draft Exploitation Regulations51 so far suggest a positive gear change in relation to regulatory good-practice generally, for example with respect to strong monitoring and compliance provisions and high transparency standards. The draft Exploitation Regulations contain a Part IV dedicated to ‘Protection and Preservation of the Marine Environment’. This is a short section (3 pages—compared to the 60 pages of stand-alone Environmental Regulations that were initially proposed by the ISA Secretariat in January 2017)52; it is focused on high-level environmental obligations and principles, rather than on operational detail. One welcome inclusion is prescription of a format for an Environmental Impact Statement (EIS), and for an Environmental Management and Monitoring Plan (EMMP), with the stipulation that both must be submitted and reviewed—including via public consultation—in any application for an exploitation contract.

49

https://www.isa.org.jm/legal-instruments/ongoing-development-regulations-exploitation-min eral-resources-area. 50 ISA Secretariat consultations on the Exploitation Regulations yielded only 9 responses from Governments in May 2015, rising to 19 responses from Governments in December 2017, and 22 responses from Governments in November 2018. 51 This article refers to the July 2018 version contained in ISBA/24/LTC/WP.1/Rev.1 https://www. isa.org.jm/document/isba24ltcwp1rev1. 52 ‘Discussion Paper on the Development and drafting of Regulations on exploitation for mineral resources in the Area (Environmental matters)’ available at: https://ran-s3.s3.amazonaws.com/isa. org.jm/s3fs-public/documents/EN/Regs/DraftExpl/DP-EnvRegsDraft25117.pdf.

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Environmental Impact Assessment in the Exploitation Regulations

These EIS and EMMP templates do appear to plug a gap identified under the exploration regime (above) i.e. the fact that contractors are currently required to conduct scientific research for EIA purposes, without knowing precisely what data the ISA requires of them.53 There is a timing issue also. Provisions related to the preparation of EIAs are most pertinent to the exploration phase: either because an EIA-triggering activity (e.g. in situ technology tests/test mining) will be conducted under exploration, or in order to prepare an exploitation application. If an EIS must be submitted at the exploitation application stage, then it stands to reason that the EIA must have already been conducted under the exploration contract. Yet the relevant regulatory detail is contained in the draft Exploitation Regulations, which are not yet in force, and which are not designed to apply to exploration contractors. This could give rise to a situation in which a current exploration contractor compiles 15-years’ worth of historic data and research into an EIS for an exploitation application, only to be told after the event that it had failed to collect a key data type that is required by the new Exploitation Regulations. Further, the Exploitation Regulations do not address specific requirements for the process of conducting an EIA, and so this significant topic remains entirely absent from the ISA’s rules. Other aspects of the usual 6-stage EIA process (referenced above) are missing. In particular, the regime does not give the ISA a distinct environmental permitting approval or disapproval function, as one might expect. An EIA is performed and presented by the contractor to the ISA in an EIS at the point of applying for Exploitation only. There is no capacity for a subsequent EIA to be conducted during the currency of an Exploitation contract, to take into account a proposed change in the plan of work or mining method, or new science and learning, for example. In considering an application for exploitation, the ISA’s LTC is required to consider whether the plan of work will afford ‘effective protection of the marine environment’, but there is no express provision in the Regulations to prohibit the LTC from recommending approval of an application where there is a finding of harm to the environment, such as where the ‘serious harm’ threshold may be breached.55

BGR EIA Report supra n. 41 (addressing the draft Exploitation Regulations) “. . .for most procedural steps more detailed requirements still need to be developed, . . . Furthermore, the draft exploitation regulations lack [. . .] specific requirements regarding environmental data to be provided and common standards for environmental surveys and monitoring plans.” 55 “Serious harm to the marine environment [arising out of activities in the Area]” is indicated as the threshold for environmental impacts that should be prohibited and prevented by the ISA. See Art. 165(2)(l), UNCLOS. 53

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Other Potential Environmental Management Gaps

REMPs present another potential lacuna in the draft Exploitation Regulations. Although clearly stated as a priority for the ISA Secretariat,56 REMPs are only mentioned in the draft Exploitation Regulations briefly.57 There are no requirements for how REMPs should be developed, what they should contain, or how they should be used by the ISA in its decision-making. Without more robust regulatory backing, it is hard to see how the REMPs could be effective (for example in safeguarding protected areas). The Exploitation Regulations also do not encompass ISA-coordinated Strategic Environment Assessment: a systematic process for evaluating the long-term environmental consequences and other impacts of multiple actions or plans, policies, legislation within a certain site or ecosystem or policy area)58 which should inform the REMPs, and within which individual contractor EIAs can be framed. Another notable absence is detailed rules concerning liability standards and procedures, in the event of environmental harm. Draft Regulation 52 does establish a new Environmental Liability Trust, and the standard contract clauses annexed to the draft Exploitation Regulations do reiterate UNCLOS’ provision as to contractors and the ISA being liable for the actual amount of damage arising from any respective wrongdoing.59 But the draft Exploitation Regulations are otherwise silent as to aspects that would make any liability regime functionally operable at the international level, for example: who could make a claim, from whom, in what forum, for what, and when?60 Stakeholder comments on the draft Regulations have highlighted additional concerns, for example: (i) a need to bolster provisions on preventing transboundary harm and protecting the interests of coastal states who neighbour potential ISA mining sites61; (ii) whether the current process enables the ISA to obtain impartial and best available scientific advice to inform decision-making62; (iii) strengthening

56 Preliminary strategy for the development of regional environmental management plans for the Area ISBA/24/C/3 available at: https://www.isa.org.jm/document/isba24c3. 57 Draft Regulations on Exploitation of Mineral Resources in the Area ISBA/24/LTC/WP.1/Rev.1, draft Regulation 2(5), 46 bis(3)(c), 46 ter (3)(b), Annex VIII paragraph 1. 58 SPC, 2011 ‘Pacific-ACP States Regional Legislative and Regulatory Framework for Deep Sea Minerals Exploration and Exploitation’, available at: http://dsm.gsd.spc.int/public/files/2014/ RLRF2014.pdf. 59 Draft Regulations on Exploitation of Mineral Resources in the Area ISBA/24/LTC/WP.1/Rev.1, draft Regulation 52 and Annex X section 7. 60 This issue is the subject of a number of papers prepared by a Legal Working Group co-convened by the ISA, Centre for International Governance Innovation, and the Commonwealth Secretariat, available at: https://www.cigionline.org/series/liability-issues-deep-seabed-mining-series. 61 Supra, n. 50. For example, the submissions from the African Group, Jamaica, Nauru, Federated States of Micronesia, Tonga, Deep Sea Conservation Coalition, Singh/Pouponneau. 62 Supra n. 50. For example, the submissions from Tonga, Belgium, Morocco, Australia, Sargasso Sea Commission, Deep Ocean Stewardship Initiative, and Deep Sea Conservation Coalition.

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provisions that require stakeholder participation and reasoned, objective decisionmaking63; and (iv) clearer identification as to what regulatory functions are expected to be undertaken by sponsoring States and flag States, rather than the ISA.64 Each of these gaps in the currently-proposed regulatory regime could impinge the ability of the ISA to perform its Article 145 duties to protect the marine environment.

3.4

Standards and Guidelines

The ISA Secretariat has explained that the previous draft Exploitation Regulations were significantly reduced in length in its 2017 reiteration, to achieve a more ‘streamlined and concise’ form, with the idea that more technical detail should be housed elsewhere, in order to facilitate flexibility and evolution of the rules as time and knowledge advance.65 As such, the draft Regulations are now pitched at highlevel principles, on the basis that there will be a separate suite of ‘Standards and Guidelines’ that will provide the prescriptive detail for environmental management aspects of the regulatory regime. Standards will be recommended by the LTC and approved by the Council.66 Guidelines will be technical in nature, and can be issued directly by the LTC or the Secretary-General, although the Council can intervene if it does not agree with the content of a Guideline.67 This seems a sensible approach from a pragmatic and regulatory perspective, but currently little is known about key aspects of the proposed Standards and Guidelines regime: What areas will be covered? How will new Standards and Guidelines be triggered? Who will feed into their content? What will their status be (binding/non-binding), and who will determine this?68 Can contractors be required to adhere to Standards and Guidelines introduced after their contract has been issued? Settling the specifics of the content of Standards and Guidelines is also likely to be a mammoth task. Topics such as ‘definition of good industry practice’, ‘what constitutes serious harm’,69 ‘how to apply adaptive management’ have long taxed

63 Supra n. 50. For example, the submissions from the Africa Group, Australia, Morocco, New Zealand, Deep Ocean Stewardship Initiative, Deep Sea Conservation Coalition. 64 Supra n. 50. For example, the submissions from the African Group, Morocco, Nauru, Jamaica, Singapore, and Tonga. 65 Para. 3, ISBA/23/C/12: Draft regulations the exploitation of minerals resources in the Area, note by the ISA Secretariat, August 2017, available at: https://ran-s3.s3.amazonaws.com/isa.org.jm/s3fspublic/files/documents/isba-23c-12_2.pdf. 66 Supra, n. 51, draft Regulation 92. 67 Supra, n. 51, draft Regulation 93. 68 The ISA Secretariat has suggested that “While standards can in principle be considered mandatory and guidelines recommendatory in nature, the legal status of each will be determined largely by their content.” ISBA/24/LTC/6, supra, n. 55. 69 This subject was the topic of a workshop, whose resulting publication while providing extremely helpful discussion, also rather shows that even a small group of reasonably like-minded and

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ISA stakeholders, and may prove difficult to transform into clear guidance for regulatory purposes, agreed by consensus. Up to fifty different sets of Standards and Guidelines might be required to operationalise the Regulations.70 Some Standards are cited in the draft Regulations as a prerequisite to exploitation. If member governments wish to see those instruments agreed before approving the Exploitation Regulations, this could throw into jeopardy the ISA’s current plan for Exploitation Regulations in force by 2020. Or if time pressure wins out, Standards and Guidelines may be rushed or omitted. Given these uncertainties it is difficult at this stage to evaluate the role that Standards and Guidelines will play in setting and enforcing rules for the protection of the marine environment, although they certainly have the potential to be a key regulatory tool for the ISA.

4 Concluding Remarks There are environmental regulation gaps in the ISA’s existing exploration regime. The Exploitation Regulations present an opportunity to fill environmental regulation gaps left by that exploration regime, but to do so a few areas may need to be bolstered, including the EIA and environmental permitting processes, and REMPs and Strategic Environment Assessments as regulatory tools. The status of documents such as LTC Recommendations, and future Standards and Guidelines, could be formalised, and some priority Standards should be developed as an integral part of the Mining Code. Consideration could also be given to the fact that these issues are potentially relevant to exploration activities, as well as exploitation, and thus addressing them only in ‘Exploitation Regulations’ may not be the most logical or effective regulatory approach.

References Bradley, Swaddling (2018) Addressing environmental impact assessment challenges in Pacific island countries for effective management of deep sea minerals activities. Mar Policy 95:356–362 Braeger et al (2020) The current status of environmental requirements for deep seabed mining issued by the International Seabed Authority. Mar Policy 114. https://doi.org/10.1016/j.marpol. 2018.09.003

impartial experts were not able at that point to progress the matter to the point of measurable metrics that could be used as a management tool: Levin et al. (2016). 70 Note by ISA Secretariat: ‘Content and Development of Standards and Guidelines for activities in the Area under the Authority’s Regulatory Framework’, 17 December 2018, ISA/25/C/3. Available at: https://ran-s3.s3.amazonaws.com/isa.org.jm/s3fs-public/files/documents/25c-3-e.pdf.

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Craik (2017) Environmental assessment: a comparative legal analysis. In: Vinuales, Lees (eds) Oxford handbook of comparative environmental law Durden et al (2018) Environmental impact assessment process for deep-sea mining in ‘the Area’. Mar Policy 87:194–202 Levin et al (2016) Defining “serious harm” to the marine environment in the context of deep-seabed mining. Mar Policy 74:245–259 Lily H (December 2018) Sponsoring state approaches to liability regimes for environmental damage caused by seabed mining. Centre for International Governance Innovation. Available at https://www.cigionline.org/publications/sponsoring-state-approaches-liability-regimes-envi ronmental-damage-caused-seabed Lodge MW, Verlaan PA (October 2018) Deep-sea mining: international regulatory challenges and responses. Elements Magazine SPC (2013) Deep sea minerals: a physical, biological, environmental, and technical review. In: Baker E, Beaudoin Y (eds) 5 Volumes, Noumea, New Caledonia: Secretariat of the Pacific Community. Available at http://www.grida.no/publications/184 Van Dover et al (2018) Scientific rationale and international obligations for protection of active hydrothermal vent ecosystems from deep-sea mining. Mar Policy 90:20–28 Wedding et al (2013) From principles to practice: a spatial approach to systematic conservation planning in the deep sea. Royal Society. Available at https://royalsocietypublishing.org/doi/full/ 10.1098/rspb.2013.1684

Hannah Lily United Kingdom-qualified lawyer practitioner with 18 years’ professional work experience across the private sector, NGOs and government. After several years in human rights, and then regulatory law, moved to specialise in seabed mineral law in 2011, working for the Secretariat of the Pacific Community based in Fiji, and then the Commonwealth Secretariat’s Oceans and Natural Resources Division in London, and The Pew Charitable Trusts. Stephen E. Roady Holds several faculty appointments at Duke University, including Duke Law School and the Nicholas School of the Environment. He has been closely engaged with ocean policy formulation and litigation since 1998. At present, he is involved with efforts to assist the International Seabed Authority in the preparation of regulations governing the management, protection, and exploitation of deep seabed resources.

Chapter 19

Three Structural Pillars of the Future International Legally Binding Instrument on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction Catherine Blanchard, Otto Spijkers, and Wen Duan

Abstract The Intergovernmental Conference on marine biodiversity of areas beyond national jurisdiction has started its work on the development of an international legally binding instrument (ILBI) on the conservation and sustainable use of such biodiversity. The negotiations on marine biodiversity beyond national jurisdiction (BBNJ) will therefore further evolve within this new stage of the process. Based on a role-playing game conducted with students of the master’s in public international law at Utrecht University, this chapter looks at how the regulation for marine biodiversity in areas beyond national jurisdiction could unfold by analysing three structural aspects of the development of the ILBI. First, as the ILBI is to be developed as an agreement under the United Nations Convention on the Law of the Sea, the first substantive section focuses on the relationship between the two treaties (Sect. 2). The next section looks at biodiversity itself, through the relationship between the Convention on Biological Diversity and the ILBI, notably on how the instruments could complement one another in areas beyond national jurisdiction (Sect. 3). Finally, the last substantive section assesses the character of the ILBI, to see whether institutional arrangements should be rooted in a global, region/sectoral and/or hybrid approach (Sect. 4). These three issues form, in our view, the three pillars of the structural development and practical significance of the ILBI.

While the authors share collective responsibility for this chapter, Otto Spijkers was the lead author of Sect. 2, Catherine Blanchard of Sect. 3, and Wen Duan of Sect. 4. C. Blanchard (*) · W. Duan Utrecht University, Netherlands Institute for the Law of the Sea, Utrecht Centre for Water, Oceans and Sustainability Law, Utrecht, The Netherlands e-mail: [email protected]; [email protected] O. Spijkers Wuhan University, China Institute of Boundary and Ocean Studies (CIBOS), Wuhan, Hubei, China e-mail: [email protected] © Springer Nature Switzerland AG 2020 M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea, https://doi.org/10.1007/978-3-030-42671-2_19

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1 Introduction The variability among living organisms in the many marine ecosystems of this world is extremely rich.1 Yet this marine biodiversity is also extremely vulnerable to climate change, overexploitation, and other such threats. In that context, the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (ABNJ) and the development of an international legally binding instrument (ILBI) covering this issue has definitely made it to the list of law of the sea news not to be missed.2 The conservation and sustainable use of marine biodiversity in ABNJ has even been characterized as the most contentious aspect in current law of the sea.3 A lot has happened for the process surrounding the conservation and sustainable use of biological diversity beyond national jurisdiction (BBNJ) to reach the stage it is now at.4 Facing a growing concern in the state of marine biodiversity,5 the United Nations General Assembly (UNGA) established, in 2004, an Open-ended Informal Working Group (the Working Group) to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction.6 This Working Group also followed the establishment, by the conference of the parties of the Convention on Biological Diversity (CBD), of a working group on protected areas,7 where experts in oceans related fields were encouraged to participate.8 The Working Group gathered for the first time in 2006, and, over the following years, met on nine occasions, addressing issues of substance (i.e. what topics could/ should be covered), institutional framework and scope of the ILBI. The fourth meeting of the Working Group, held in 2011, identified four main issues to be covered—the “package”9—namely: 1. Marine genetic resources (MGRs), including questions on benefit-sharing; 2. Area-based management tools (ABMTs), including marine protected areas (MPAs); 3. Environmental impact assessments (EIAs); 4. Capacity building and marine technology transfer (CB&TT).

1

IISD (2006), p. 1. E.g., Barnes (2016), Tladi (2017), Scanlon (2018), Warner (2017), Young and Friedman (2018) and Millicay (2018). 3 Tladi (2017), p. 259. 4 IISD (2018), pp. 1–2. 5 IISD (2011), p. 2; WSSD (2002); UNGA Res 57/14 (2002), UNGA Res 58/240 (2003). 6 UNGA Res 59/24 (2004), para 73. 7 CBD COP Dec VII/28 (2004), para 25. 8 UNGA Res 59/24 (2004), para 71. 9 DOALOS (2017b), p. 9; Scanlon (2018), p. 2; Jeff Ardron (2013), p. 2. 2

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At its ninth meeting in late January 2015, the Working Group agreed, by consensus, on recommendations to submit to the UNGA to develop an ILBI on BBNJ. In June 2015, the UNGA, having considered the recommendations of the Working Group, made the decision to develop an ILBI under the United Nations Convention on the Law of the Sea (UNCLOS). For that purpose, the UNGA first established a Preparatory Committee (PrepCom or the Committee), with the mandate “to make substantive recommendations to the General Assembly on the elements of a draft text of an [ILBI]”.10 The Committee met four times, in 2016 and 2017, and at its last meeting adopted its final report, which contained a list of elements to be considered for the draft text of an ILBI.11 The PrepCom also recommended that the UNGA make a decision on the convening of an intergovernmental conference (IGC) to conclude the ILBI, on the basis of the PrepCom’s recommendations.12 On 24 December 2017, the UNGA followed suit and decided to convene an IGC, “to consider the recommendations of the [PrepCom] [. . .] with a view to developing the instrument as soon as possible”.13 With the IGC starting its work in September 2018, the international community saw the BBNJ process enter a new stage of development, where delegations focused on questions and clarifications left open by the PrepCom.14 The discussions held were a necessary step to get everybody on board and to clearly set the table for this new step of the process.15 This first meeting was followed by the publication, in January 2019, of the “President’s aid to negotiations”,16 a compilation of options for treaty text formulations, which is expected to form the basis of future negotiations on the content of the ILBI.17 Against this backdrop, and curious about the future of the BBNJ process, we decided to travel forward in time and to give it a try at anticipating history. With the students of the International Environmental Law course of the LLM programme in Public International Law at Utrecht University, we conducted a role-playing game entitled “Negotiating the new ILBI”. Each student represented a particular State or non-State actor and elaborated a position, putting forward the interests and legal arguments of the entity represented, that could contribute to the negotiations. To address the different issues of the 2011 package, as well as cross-cutting elements, the “plenary” of our time travelling experiment was divided into three “working groups”, each of which addressed one structural aspect of the ILBI: 10

UNGA Res 69/292 (2015), para 1(a). PrepCom (2017), para 38. It is to be noted that these elements were divided in two categories: elements that generated convergence among most delegations, and main issues on which there is divergence of views. 12 Ibid. 13 UNGA Res 72/249 (2017), para 1. 14 IGC (2018b). 15 IISD (2018), p. 15. 16 IGC (2019). 17 The IGC has since met on two additional occasions, in March-April and August 2019, and a fourth session is pending. A draft text (June 2019) and revised draft text (November 2019) have also been published by the President of the IGC. However, the content of the present chapter was last updated in April 2019, and the authors relied on the state of the negotiations and information available at that time. 11

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1. As the ILBI is to be developed as an agreement under the UNCLOS, the first working group focused on the relationship between these two treaties. 2. The second group looked at biodiversity itself, through the relationship between the CBD and the ILBI, notably on how the instruments could complement one another in relation to ABNJ. 3. The third group assessed the character of the institutional arrangements established by the new ILBI, to see whether institutional arrangements should be rooted in a global, region/sectoral and/or hybrid approach. These three issues form, in our view, three pillars of the structural development and practical significance of the ILBI, on which this chapter elaborates. Considering the wide range of issues that arise when discussing the new ILBI, from science to law and including governance, institutions and economic interests, it is important to mention that this chapter does not provide an exhaustive review of the current developments impacting the future ILBI. It aims at providing a glance at some issues, which, we believe, shape the ILBI’s content and structure, and are at the heart of its development.

2 Relationship Between the ILBI and the Law of the Sea Convention This section analyses the relationship between the ILBI and the United Nations Convention on the Law of the Sea (UNCLOS). The PrepCom proposed that the new ILBI should not “prejudice the rights, jurisdiction and duties of States under the [UNCLOS]”; and that it “shall be interpreted and applied in the context of and in a manner consistent with” the UNCLOS; similar statements one finds at all stages of the BBNJ process.18 Things get trickier once we enter into the details and technicalities of this special relationship. For example, the President of the IGC openly wondered whether the relationship between the ILBI and the UNCLOS should be dealt with in a single generally applicable provision, or whether different elements of the package deal required specific provisions regulating the relationship between that specfic part of the ILBI and the UNCLOS.19 And an agreement needed to be reached on what to do with those States not party to the UNCLOS.20 Many of them actively participate in the negotiations leading to the new ILBI. At the first session of the conference, the delegations from Colombia, El Salvador, Eritrea, Iran, and Turkey emphasized that

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PrepCom (2017), para 4. See also DOALOS (2017b), para 18, IGC (2018b), para 3, and IGC (2018c). 19 IGC (2018b), para 3.4.2. 20 States not party to the UNCLOS include Colombia, Libya, Turkey, the United States, and Venezuela.

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their participation in the conference could not in any way affect their status of UNCLOS non-parties. The special relationship between the new ILBI and the UNCLOS is further reflected in the proposal to see the new ILBI as an instrument “under” the UNCLOS. There is general agreement that this means the new ILBI will become an implementing agreement, like the Agreement implementing Part XI of the UNCLOS on matters related to the Area, and the Fish Stocks Agreement. In fact, the phrase that the new ILBI must not “prejudice the rights, jurisdiction and duties of States under the” UNCLOS, and that it “shall be interpreted and applied in the context of and in a manner consistent with” the UNCLOS, is copy-pasted from Article 4 of the Fish Stocks Agreement.21 There is thus a clear hierarchical relationship, with the “constitution of the oceans” (the UNCLOS) on top of that hierarchy, and the ILBI below it.22 This relationship is different from the relationship between the ILBI and other international treaties, such as the Convention on Biological Diversity. With respect to those, the new ILBI “should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies”.23 The “not undermine”-condition does not apply to the relationship between the ILBI and the UNCLOS and will thus not be discussed in this section. The ILBI’s main objective is to ensure the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction through effective implementation of the UNCLOS. Instead of prejudicing the rights and duties under the UNCLOS, the new ILBI must actively reaffirm, support and strengthen these very rights and duties. The ILBI should show respect for the balance of rights and obligations achieved in the UNCLOS; and the new ILBI should build on the relevant principles of the UNCLOS, and not derogate from them. And the meaning of terms used in the ILBI should be consistent with the meaning of those same terms as used in the UNCLOS. This is not so difficult, since the UNCLOS does not provide a definition of most of the terms it uses.24 But their meaning did crystallize through the subsequent practice in the application and interpretation of the UNCLOS, and this practice now forms part of that Convention. What rights and duties do we find in the UNCLOS that are relevant to the ILBI? First, the UNCLOS contains various duties—and rights—of States to protect and preserve the marine environment, also in areas beyond national jurisdiction. Second, one of the most important rights in the UNCLOS is the freedom of the high seas. A formidable achievement of the UNCLOS is that it found a balance between marine environmental protection and high seas freedoms.

21

Fish Stocks Agreement (1995), Art. 4. See e.g. UNGA Res 69/292 (2015). 23 Id., para 19. 24 Most notably, the UNCLOS does not define “marine environment”; and the term “(marine) biodiversity” is entirely absent from the Convention. 22

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Let us begin with the latter. Article 87 of UNCLOS states that “the high seas are open to all States”. High seas freedoms include the freedom of navigation, overflight, the freedom to lay submarine cables and pipelines, the freedom to construct artificial islands and other installations, the freedom of fishing, and the freedom of scientific research. None of these freedoms is absolute. They are to be “exercised under the conditions laid down by this Convention and by other rules of international law”.25 One such condition laid down in the UNCLOS itself is the obligation to protect and preserve the marine environment (Article 192, UNCLOS). There are conditions that apply to specific freedoms only, such as the obligation for States to “cooperate with each other in the conservation and management of living resources in the areas of the high seas”, which primarily constitutes a limitation on the freedom of high seas fishing (Article 118, UNCLOS). States interested in the same living resource must “enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned”, which includes an obligation to jointly establish sub-regional or regional fisheries organizations, whose raison d’être is to further limit the freedom of high seas fishing. Article 87 of UNCLOS obliges States to exercise their high seas freedoms “with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area”. This due regard-condition means States must consult with the relevant other States and figure out jointly how all States’ rights and obligations may be balanced, and possibly consider an alternative course of action if that balance appears to get lost.26 The high seas freedoms are thus subject to conditions, and these can be based on the UNCLOS, but also on other international law. When the UNCLOS was drafted, the States sought to achieve a fair balance between the freedoms of the high seas and the protection of the marine environment. Clearly, the new ILBI must show some respect for this delicate balance of rights and interests achieved in the UNCLOS. Let us now look at the other category of rights and duties under the UNCLOS, which might be affected by the new ILBI. The UNCLOS establishes rights and duties for the protection of the marine environment; the term “biodiversity” does not appear at all in the UNCLOS. When the UNCLOS was drafted, there was a feeling that the legal framework on the protection and preservation of the marine environment was still in development, and that the UNCLOS should not solidify or crystallize this development. It was too early for that. Therefore, some of the provisions in the UNCLOS are rather vague and general. Article 192 of UNCLOS simply reads that “States have the obligation to protect and preserve the marine environment”. Admittedly, there are more detailed provisions on the States’ obligations to take measures necessary to combat pollution (Article 194, UNCLOS), be it from land-based sources (Article 201, UNCLOS), vessels (Article 211, UNCLOS), or through the atmosphere (Article 212, UNCLOS). In their efforts to protect and

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UNCLOS, Art. 87(1). See also Oude Elferink (2018), pp. 446–455.

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preserve the marine environment, all States have an obligation to cooperate with other States, on a global or regional basis, directly or through competent international organizations (Article 197, UNCLOS). The UNCLOS does not detail the means and methods of such cooperation, but at the very least it means States cannot frustrate cooperation efforts of other States, or dissociate themselves from any form of cooperation, or engage in cooperation efforts in bad faith. The UNCLOS does not detail the precise modalities and competences of institutionalized forms of cooperation (international organizations). It also does not appear to oblige reluctant States to cooperate with such international organizations, once established by other States. All States are obligated to take measures necessary for the conservation of the living resources of the high seas (Article 117, UNCLOS) and need to cooperate for that purpose (Article 118, UNCLOS). They are also under an obligation to take measures necessary to protect the marine environment in the so-called “Area” (Article 145, UNCLOS). The “Area” is defined as “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction” (Article 1, UNCLOS). More specifically, Article 145 of UNCLOS obliges States to take “necessary measures”, with respect to all activities of exploration for, and exploitation of, the resources of the Area, and to ensure effective protection for the marine environment from harmful effects which may arise from such activities. The International Seabed Authority (ISA) is tasked with deciding which measures are necessary to avoid “interference with the ecological balance of the marine environment”, as well as to ensure “the protection and conservation of the natural resources of the Area and the prevention of damage to the flora and fauna of the marine environment”. It could be argued that these duties, taken together, already require States parties to the UNCLOS to adopt all measures necessary to protect the marine environment, and that this includes an obligation to cooperate for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. After all, under the UNCLOS, States have an obligation to cooperate, including in the establishment and functioning of international organizations. To what extent can States then entirely refuse to participate in the institutional framework established by the new ILBI? In the negotiations, the European Union constantly insists on references, in the new ILBI, to provisions in the UNCLOS, as if the new ILBI provides the only way to comply with these provisions in the UNCLOS. This would give the impression that States parties to the UNCLOS are basically “obliged” to also ratify the new ILBI. But what if States decide to implement their obligations under the UNCLOS in a way that is different from the way it is done in the new ILBI? The UNCLOS is much too vague and general to provide guidance here. And this was deliberately done. Indeed, the provisions in the UNCLOS referred to above anticipate that the States will come together and conclude more specific agreements. The ILBI’s main aim is thus to fill certain gaps deliberately left in the UNCLOS at the time it was drafted. According to Tiller et al., these gaps relate to “provisions and definitions [that] were not specific enough for states to be certain of the treaty's meaning at the time of

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UNCLOS, such as the application of the common heritage of mankind; or did not address problems that have either arisen since its ratification, such as exploitation of Marine Genetic Resources (MGRs), or worsened since the treaty's completion in 1982, such as marine pollution.”27 Fundamental questions still need to be addressed, such as whether the exploitation of MGRs is a high seas freedom, or falls within the common heritage of mankind regime, whatever that may be. There are also many outstanding questions on the management of marine living resources in ABNJ.28 Article 237 of UNCLOS, on obligations under other conventions on the protection and preservation of the marine environment, makes very clear that the drafters of the UNCLOS anticipated more detailed rules on the protection of the ABNJ. It proclaims that certain provisions in the UNCLOS are “without prejudice to the specific obligations assumed by States under [. . .] agreements which may be concluded in furtherance of the general principles set forth in this Convention”. It further proclaims that “specific obligations assumed by States under special conventions, with respect to the protection and preservation of the marine environment, should be carried out in a manner consistent with the general principles and objectives of this Convention.” Let us look in some more detail at how much policy space is left open by the UNCLOS, when it comes to balancing marine environmental protection and the high seas freedoms. There is some disagreement on this issue. The United States believe there is not really any legal vacuum.29 The European Union is of the opinion that a global legal regime for the conservation of BBNJ needs to be made, seeking to balance marine environmental protection with high seas freedoms, whilst at the same time finding some modest room for the common heritage of mankind principle.30 China and most developing States believe that the UNCLOS obliges States to exploit BBNJ on the basis of the common heritage of mankind principle, and that there is a need for a new global agreement to tell States how exactly this is done; marine environmental protection and the high seas freedoms fade a little bit into the background here.31 References to the common heritage of mankind principle we find, inter alia, in Article 136 of UNCLOS, which proclaims that “the Area and its resources are the common heritage of mankind”. And Article 311(6) of UNCLOS prohibits States from making “amendments to the basic principle relating to the common heritage of mankind set forth in Article 136 [and to become] party to any agreement in derogation thereof”. Article 140 of UNCLOS obliges States inter alia to carry out all activities in the Area “for the benefit of mankind as a whole”. The ISA was given specific tasks in this context, further elaborated in the Agreement relating

27

Tiller et al. (2019). See also Kraabel (2019), pp. 152–154. Warner (2018a). 29 See also Wright et al. (2018), p. 53. The United States maintain this position especially with regard to marine genetic resources in ABNJ. 30 Id., pp. 47–49. 31 China argues in particular that marine genetic resources in the Area should be exploited on the basis of this principle. See Id., pp. 34–35 and 49–51. 28

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to the implementation of Part XI of the United Nations Convention on the Law of the Sea, which entered into force 28 July 1996. It is important to note that the UNCLOS articles referred to, as well as the Part XI implementing agreement, apply only to the Area, not to the water column situated above it, i.e. the high seas. In those high seas, the traditional freedoms prevail.32 That is why a new ILBI based on an application of the common heritage of mankind principle (also) to the high seas risks to modify— as opposed to implement—the UNCLOS framework. Let us look briefly at some of the ways in which the new ILBI might play this function of filling in the details left open by the more general provisions in the UNCLOS.33 Article 192 of UNCLOS obliges States parties to “protect and preserve the marine environment”; and Article 194(5) of UNCLOS obliges the same States to take measures “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”. Article 197 of UNCLOS requires States to cooperate. One way to cooperate in the protection of fragile marine ecosystems is by designating them as MPAs. It could be argued that one can derive an obligation, from the abovementioned articles in the UNCLOS, to participate in the establishment of such MPAs.34 The new ILBI can set criteria and procedures for designation of ABMTs, including MPAs, and provide more detailed regulations on their management, and enforcement of the MPA’s protective measures.35 According to Article 194(4) of UNCLOS, “in taking measures to prevent, reduce or control pollution of the marine environment [such as the designation of an MPA] 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”. This can be interpreted as a variation of the obligation we find in Article 87 of UNCLOS, i.e. to have “due regard for the interests of other States in their exercise of the freedom of the high seas”.36 In other words, when designating an MPA, the obligation to protect the environment must be balanced against the obligation to respect the high seas freedoms. The new ILBI should not distort this balance, which is the very foundation on which the constitution of the oceans is built. From Article 206 of UNCLOS, a general duty to undertake an EIA, also for activities which might cause harm to the marine environment in areas beyond national jurisdiction, can be derived.37 But Article 206 of UNCLOS does not tell us when exactly such an EIA is compulsory, and how it should be done.38 The 32

See UNCLOS, Art. 87. See also IUCN (2018). 34 See also Oude Elferink (2018), p. 445. Here, the author discusses the legal basis for the establishment of MPAs in ABNJ but does not expressly indicate that there is an obligation for States to participate in the establishment of MPAs in ABNJ. 35 Wright et al. (2018), pp. 32–34. See also Park and Kim (2019). 36 See also Oude Elferink (2018), pp. 447–448. Support for this interpretation can be found in Chagos Marine Protected Area Arbitration (2015), para 475. 37 This interpretation of 206 UNCLOS finds support in ITLOS Advisory Opinion (2011), para 146–148. 38 See also Wright et al. (2018), p. 35. 33

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implicit reference to EIAs in Article 204 of UNCLOS also says nothing about the requirements—procedural and substantive—a good EIA must meet.39 The President’s aid to discussion proposes three different strategies through which the new ILBI could provide clarity on this issue: first, the new ILBI could set general “thresholds and criteria for environmental impact assessments”; second, the new ILBI could include a “list of activities that require or do not require an environmental impact assessment”; third, the new ILBI could provide a combination of the two.40 Such a list need not be exhaustive, and could, for example, allow for regular updating without a need to formally amend the ILBI. A fourth alternative, not suggested by the President, would be to impose an obligation to conduct an EIA on all proposed activities which might affect the marine environment in areas beyond national jurisdiction. But that would not be in accordance with Article 206 of UNCLOS, which limits such obligation clearly to activities which may cause substantial pollution of or significant and harmful changes to the marine environment. In the context of EIA, the general obligation to cooperate of Article 197 of UNCLOS is also relevant, as it obliges States to share information, consult each other, and so on.41 These are some of the ways in which the new ILBI could provide the necessary details for effective implementation of the general obligations under the UNCLOS.

3 Relationship Between the Convention on Biological Diversity and the ILBI The Convention on Biological Diversity (CBD) was developed42 as a response to the loss of biodiversity triggered by certain human activities, on land, in internal waters, and at sea, by providing an overarching and coherent framework for the conservation and sustainable use of biodiversity.43 As such, it complements other instruments related to nature conservation.44 The CBD puts forward three main objectives: the conservation of biodiversity, the sustainable use of its components, and the fair and equitable sharing of benefits from the use of genetic resources.45 More specifically, the CBD creates obligations targeting the components of biodiversity found within the limits of national

39

Warner (2018b), pp. 41–42. IGC (2018b), 5.3. 41 See also Wright et al. (2018), pp. 35–36. 42 The CBD was opened for signature at the 1992 UN Conference on Environment and Development (Rio Conference), and it entered into force the next year, see CBD (1992), preamble; CBD, History of the Convention. 43 Yzquierdo (2017), p. 10. 44 E.g. Ramsar Convention (1971); CMS (1979); CITES (1973). 45 CBD (1992), Art. 1. 40

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jurisdiction of States parties, and the processes and activities carried out beyond national jurisdiction.46 It also covers the conservation of the components of biodiversity inside and outside their natural habitat.47 As per the third main objective of the CBD, the access to genetic resources,48 and the fair and equitable sharing of their benefits, lies at the heart of the regulatory framework established by the CBD. These aspects are further regulated by the Nagoya Protocol49 which aims for more transparency and predictability in the access to genetic resources.50 The Nagoya Protocol also elaborates on the clearing-house mechanism51 established under the CBD.52 This measure embodies one of the objectives of the Protocol to support appropriate transfer of technologies,53 and is linked to the access to and transfer of technology found in the CBD itself.54 The framework set forth in the CBD is additionally complemented by soft law instruments. This includes, for example, the Jakarta Mandate on the conservation and sustainable use of marine and coastal biodiversity adopted by the conference of the parties,55 which commits the CBD to goals that specifically target the marine environment.56 Further, the 2010 Strategic Plan for Biodiversity 2011–2020 provides an overarching plan for all actors, stakeholders and partners involved in biodiversity management through, among others, the revision and update of national strategies and action plans targeting biodiversity.57 This Plan also includes the Aichi Biodiversity targets, classified under five broader strategic goals, including capacity building.58 Against this framework, the structural role of the CBD for the development of the ILBI arises first because of the objectives the two instruments share. Of course, not only are the conservation and sustainable use of biodiversity, the first two objectives of the CBD, at the heart of the overarching goals of the ILBI (and its name!), but the

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Id., Art. 4. Id., Art. 8–9. 48 Id., Art. 15, see also Art. 8(j). 49 Nagoya Protocol (2010). 50 CBD, About the Nagoya Protocol. 51 Nagoya Protocol (2010), Art. 14. 52 CBD (1992), Art. 18. A clearing-house mechanism works for the collection, centralisation, and distribution of information and materials. 53 Nagoya Protocol (2010), Art. 1. 54 CBD (1992), Arts 16 and 18. 55 CBP COP Dec II/10 (1995). 56 Indeed, biodiversity specifically in the context of the costal and marine environment are not discussed at length in the CBD. The Jakarta mandate completes the CBD in that field, see Wolfrum and Matz (2000), p. 459. 57 CBD, Strategic Plan for Biodiversity 2011–2020. 58 CBD, Aichi Biodiversity targets. 47

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third objective of the CBD is intrinsically linked with the issue of MGRs, which is one of the elements of the 2011 package. Yet, since the CBD is widely ratified59 and, as portrayed above, covers a broad range of activities, through the Convention text and other related instruments, one could ask whether there really is a need for an ILBI, and whether the CBD is not already enough for ensuring biodiversity conservation. Why adopt yet another instrument dealing with the same issues, and potentially contributing to treaty fragmentation?60 One important reason lies in the debate surrounding the CBD’s scope of application to ABNJ. Article 4 of the CBD states that the Convention does cover the components of biodiversity, i.e. the biological resources, in areas within national jurisdiction (paragraph a). In ABNJ, the Convention applies only to processes and activities carried out (paragraph b). It is most likely because of (marine) genetic resources that components of biodiversity in ABNJ were not directly included in the text of the article, as the access to and use of these resources is subject to the everlasting debate on whether the freedom of the high seas or the common heritage of humankind principle should apply.61 In fact, it is the practical impact of this distinction between the two paragraphs of Article 4 that triggers the debate. One interpretation argues that there is no real distinction in the scope of application of the CBD; indeed “these distinctions are in some way arbitrary since the components of biological diversity are necessarily affected by human processes and activities.”62 Consequently, since processes and activities in ABNJ are covered under the CBD, their potential impacts on components of biodiversity in these areas are also covered. Another interpretation is supported by the different language used by the drafters in the two paragraphs, which reinforces a distinction in their meaning. According to such interpretation, while all obligations of the CBD are applicable in areas within national jurisdiction, only the obligations covering activities and processes are applicable in ABNJ. These obligations do refer to the responsibility not to cause environmental damage, to cooperate, and to identify activities which have or are likely to have significant adverse impacts on biodiversity.63 However, these obligations remain broadly phrased and lack specificity. Further, in practice, while the role of the CBD in providing scientific and technical assistance and advice with respect to MPAs in ABNJ has been clearly expressed by the conference of the parties,64 the CBD remains an instrument of support only, as the UNGA retains the main role in addressing issue relating to conservation and sustainable use of BBNJ.65 This debate

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196 parties have ratified as of 13 December 2018. Caddell (2016). 61 Millicay (2018), pp. 172–173. 62 Glowka et al. (1994), p. 27. 63 CBD (1992), Arts 3, 5, 7(c) and 8(l). See also Robinson and Kurukulasuriya (2006), pp. 226–227. 64 CBD COP Dec X/29 (2010), para 24; CBD COP Dec XI/17 (2012), preamble; Gjerde and Rulska-Domino (2012), pp. 360–361; Wright et al. (2018), p. 23. 65 COP 13 XIII/12 (2016), preamble; COP 12 XII/22 (2014), preamble. 60

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surrounding the scope of application of the CBD illustrates one of the major issues concerning ABNJ: these areas are prone to legal uncertainty, which leads to regulatory, governance and implementation gaps.66 The ILBI could therefore clarify and/or strengthen an extended coverage for the conservation of biodiversity. While the ILBI could provide clarifications to the uncertainties related to the scope of application of the CBD, the relationship between the instruments is not one-sided. The CBD is also of relevance for the development of the ILBI, which could build on concepts and mechanisms found in the CBD’s provisions. Although the final report of the PrepCom does not refer to the CBD specifically,67 opinions and ideas on how this Convention could be used as a source of inspiration for the ILBI can be found in the discussions held during the different meetings of the PrepCom, in working documents issued by the Chair of the Committee, and in opinions and ideas discussed at the first meeting of the IGC. References to the CBD have also found their way in the President’s aid to negotiations. For example, the CBD has indeed been referred to as a starting point, within the ILBI, for definitions of terms, explanation of principles, and elaboration of processes. It has been suggested that the definitions of genetic material and resources, of biotechnology, and of biodiversity itself should rely on the definitions found in Article 2 of the CBD.68 Within general principles and approaches, developing a principle of equity could be done in line with the fair and equitable benefit-sharing objective of the CBD.69 Further, a principle of cooperation, primordial for the conservation and sustainable use of biodiversity and stated as a main objective of the ILBI,70 could build on the duty of cooperation found under Articles 5 and 18 of the CBD. The engagement of relevant stakeholders—and not only States—also figures as a general principle that should drive the ILBI,71 which reminds us of the overarching aim sought by the CBD Strategic Plan for Biodiversity 2011–2020.72 Measures such as biodiversity strategies and plans, as found under Article 6 of the CBD, could also be undertaken as part of the ILBI, to integrate marine biodiversity concerns into decision-making and management.73 These are only a handful of examples, but it is expected that some principles that transpire from the CBD— sustainability, respect for sovereignty, ecosystem approach, science-based approach, respect of traditional knowledge, public participation, transparency and availability of the information—will most probably find their way into the ILBI.74

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See, e.g., Ardron et al. (2013), Blasiak and Yagi (2016), Houghton (2014) and Takei (2015). PrepCom (2017). 68 DOALOS (2017b), pp. 6–8; IISD (2018), p. 4; IGC (2019), p. 4. 69 IISD (2017), p. 8. 70 PrepCom (2017), pp. 8 and 10. 71 Id., p. 9. 72 CBD, Strategic Plan for Biodiversity 2011–2020. 73 DOALOS (2017a), p. 56. 74 PrepCom (2017), pp. 9–10. We can indeed find these principles in the list of general principles and approaches. 67

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When it comes to the elements of the package, the definition of an MPA75 could build on the definition of protected area, also contained in Article 2 of the CBD. The process for designing and establishing MPAs could also rely on the Ecologically or Biologically Significant Marine Areas (EBSAs) as source of inspiration.76 EBSAs, launched by the CBD in 2005, aim for the designation of “geographically or oceanographically discrete areas that provide important services to one or more species/populations of an ecosystem or to the ecosystem as a whole, compared to other surrounding areas or areas of similar ecological characteristics, or otherwise meet [certain] criteria”.77 Such designation can lead to protective measures. Although the designation process, based on several criteria,78 is scientifically and technically driven, it has, for now, not achieved broad acceptance nor legal value.79 By relying on the EBSA process to develop the ILBI, the goal would not be to fasttrack a designated EBSA into an ABMT/MPA under the ILBI; this process could however serve as a starting point for the development of ABMT designation procedures under the ILBI.80 In regards to EIAs, the activities addressed by such assessments under the ILBI could be harmonized with the ones having an impact on ABNJ in accordance with the content of Article 14 of the CBD, i.e. projects likely to have significant adverse effects on biological diversity.81 Whether to include strategic environmental assessments (SEAs) in the ILBI has also been discussed.82 In order to develop the EIA processes under the ILBI, including their conduct but also the threshold and criteria relied upon, the CBD Voluntary guidelines on biodiversity-inclusive impact assessment,83 as well as the CBD Revised Voluntary Guidelines for the Consideration of Biodiversity in EIAs and SEAs in Marine and Coastal Areas,84 could be of assistance. Small-island developing States have also reiterated the need to incorporate traditional knowledge in the assessments, by building upon the CBD Akwé:Kon Guidelines on socio-cultural and environmental assessments.85 Regarding the question of access and benefit sharing of MGRs, the Nagoya Protocol could be relied upon to develop a list of benefits, as well as for establishing

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DOALOS (2017a), pp. 8–9; IISD (2018), pp. 6–7, 9. DOALOS (2017a), pp. 41, 44, 48, 66, 95; IISD (2018), p. 6. 77 CBD COP Dec XI/17 (2012). See also Ardron et al. (2013), p. 11; Gjerde et al. (2013), p. 546. 78 The criteria are uniqueness or rarity, special importance for life history stages of species, importance for threatened, endangered or declining species and/or habitats, vulnerability, fragility, sensitivity or slow recovery, biological productivity, biological diversity, and naturalness. 79 See, e.g., Freestone (2016), pp. 248 and 264. 80 Id., p. 248. 81 IISD (2017), pp. 12–13. 82 IGC (2018b), p. 12; IISD (2018), pp. 11–12. 83 CBD COP Dec VIII/28 (2006). IGC (2019), pp. 33 and 35. 84 IISD (2018), p. 16. 85 CBD COP Dec VII/16 (2004); IISD (2017), p. 8. 76

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the modalities for benefit sharing.86 Similarly, in terms of CB&TT, and for the development of an eventual clearing-house mechanism,87 the ILBI could use the CBD and the Nagoya Protocol as sources of inspiration. Not only could it draw from the instruments to reflect the recognition of the special requirements of developing countries88 or to develop a list of categories and types of CB&TT,89 but it could also rely on the CBD to develop funding mechanisms.90 These examples give a rough overview of how the ILBI could complement the biodiversity framework overseen by the CBD. Reciprocally, it also gives examples of how the CBD could be used in several aspects of the development of the ILBI. What is illustrated above is however only a portrait of ideas that have been suggested; there is, for now, no consensus on what precise elements of the CBD could and/or should be used and/or relied upon. The relationship between the CBD and the ILBI will also most probably be influenced by the way the institutional arrangements of the ILBI are developed.91 Yet, when raising the question of relationships between instruments in the context of the CBD, it is not to be forgotten that its Article 22 indicates that the Convention pays a particular respect to the law of the sea, which would include the ILBI. Indeed, paragraph 1 of Article 22 prima facie gives a primary status to the conservation of biodiversity over rights and obligations found under other instruments.92 However, this direct reference to biodiversity is not found under the second paragraph, which provides that “Contracting Parties shall implement this Convention with respect to the marine environment consistently with the rights and obligations of States under the law of the sea”. Although a literal interpretation of the wording of paragraph 2 would give priority to the balance between rights and obligations in the law of the sea provisions over CBD related obligations, this has been characterised as illogical for two reasons. First, the drafters would most probably have used more explicit vocabulary if they had wanted to give priority to law of the sea rules over biodiversity related ones. Second, the law of the sea framework and biodiversity law do not have the same scope of application as to substance; consequently, always giving priority to law of the sea would leave some issues partially or completely uncovered.93 This is why, as pointed out by Wolfrum and Matz, “[a]rticle 22 paragraph 2 of the [CBD] instead means that the two regimes exist in parallel and supplement 86

IGC (2019), p. 17. DOALOS (2017a), pp. 33, 80, 83, 90 and 104; IGC (2019), p. 62. 88 More specifically Articles 16 and 20 CBD, see IGC (2019), p. 46. 89 More specifically Article 16 CBD and Article 22(5)(g) of the Nagoya Protocol, see IGC (2019), p. 47. 90 IGC (2019), p. 54. 91 Id., p. 57. The institutional arrangements are described in further details in Sect. 4. 92 “The provisions of this Convention shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity.” (emphasis added). See also Robinson and Kurukulasuriya (2006), p. 226. 93 Robinson and Kurukulasuriya (2006), p. 226; Wolfrum and Matz (2000), p. 476. 87

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and reinforce each other. Only if the application of the [CBD] does infringe upon the rights or obligations of States, the law of the sea rules prevail.”94 This necessity for the regimes to supplement and reinforce each other is also found in the nature of the two regimes. As a matter of fact, the law of the sea and biodiversity law have different aims. The former focuses mostly on regulating the use of resources, while the latter puts the emphasis on preservation. Moreover, the two regimes are not completely coherent, as they come from two different “generations”.95 Facing this different nature, the watchwords remain compatibility and collaboration. And this is even more important considering the requirement that the ILBI “should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies”.96 Although the scope of this “not undermine”-condition still triggers some uncertainties,97 it will impact the way the CBD and the ILBI interact, influence, and complement one another. This could also potentially impact the cooperation that the CBD maintains with organizations that have law of the sea related mandates, such as the Food and Agriculture Organization, Regional Fisheries Management Organizations (RFMOs) and other regional seas agreements.98 The ILBI could, once again, become an instrument of complementarity, which would expressly put the focus on biodiversity in a law of the sea context. The ILBI is therefore seen as a potential bridge between the two regimes.

4 Institutional Arrangements of the ILBI This section analyses the third pillar of the ILBI: the institutional arrangements that would operationalize its relationship with other instruments. The question to be answered in this section is whether the institutional arrangements of the ILBI should be global, regional or hybrid in character. As indicated in the discussions of the PrepCom and IGC 1 and the “President’s aid to negotiations”, there are three approaches for the institutional arrangements of the proposed ILBI: • Option 1—Global Model: A global institution with a meeting or conference of parties would be established under the ILBI to undertake scientific advice, decision-making, review and monitoring of implementation.99 States parties to the ILBI would become the members of this global institution and thus participate in these activities.100 The decisions adopted by the global institution would be

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Id., p. 476. Id., pp. 464, 473–474, 477. 96 UNGA Res 72/249 (2017), para 7; PrepCom (2017), p. 9. 97 See, generally, Scanlon (2018). 98 Robinson and Kurukulasuriya (2006), pp. 226–227. 99 DOALOS (2017b), paras 94, 121, 241; See also IGC (2019), pp. 23, 57–58. 100 DOALOS (2017b), Ibid. 95

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legally binding on all States parties to the ILBI.101 An example of this model is the regulation, by the ISA, of the mining activities in the Area, and such activities are subject to the organization, performance and control of the ISA “for the benefit of mankind as a whole” as per Article 137 of UNCLOS.102 • Option 2—Regional or Sectoral Model: The full authority of existing regional and sectoral regimes, such as the International Maritime Organization, RFMOs and Regional Environmental Conventions, would be recognized, which means that all matters would still be addressed by existing regional and sectoral legal regimes.103 The global mechanism would only provide general principles or policy guidance on those above-mentioned matters to enhance cooperation and coordination among existing relevant mechanisms, but it would have no competence to oversee the decision-making and implementation by existing relevant mechanisms.104 • Option 3—Hybrid Model: The regional/sectoral regimes would still be relied upon for scientific advice, decision-making, implementation and compliance, but a global institution would be established to provide general guidance, criteria and standards on those above-mentioned matters at the global level to enhance the coherence and complementarity.105 In addition, the global institution could oversee the decision-making and implementation by existing regional/sectoral regimes and thus ensure those existing regimes duly respect the global mechanism.106 By making a comparison between these three different approaches, this section addresses the question as to which approach should be chosen and why. The choice of institutional arrangements is considered as a cross-cutting issue, which is relevant to all four elements of the “package”—MGRs, EIAs, ABMTs including MPAs, and CB&TT.107 This section intends to take one element of the “package” as a case study on the general approaches to be taken, which will be helpful for better understanding how would these different approaches work on a specific element. The element to be analysed is the establishment of MPAs in ABNJ. This is because the process for establishing MPAs has to address the issues of institutional arrangements such as “who will establish the criteria. . .” and “who will take the decision” and thus must be built upon the institutional arrangements of the ILBI.108

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Ibid. Tanaka (2014), pp. 146–147. 103 Ibid. 104 DOALOS (2017b), paras. 96, 123, 241; See also IGC (2019), p. 23. 105 DOALOS (2017b), paras. 95, 122, 241; See also IGC (2019), p. 24. 106 DOALOS (2017b), Ibid. 107 Fletcher et al. (2017), p. 42. 108 See Millicay (2018), p. 175; See also ICG (2018a), p. 5. 102

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Global Model

Under the global model, the global institution created by the ILBI would have full competence to establish MPAs in ABNJ,109 and to recognize the MPAs in ABNJ established by existing regional or sectoral regimes and thus make those MPAs legally binding on all State parties to the ILBI.110 In addition, the global institution would be competent to adopt relevant management measures associated with existing MPAs in ABNJ.111 This means that, even where an MPA has already been established by existing regimes, the global institution would still be able to adopt additional measures to complement the measures of existing regimes. This model would to a large extent ensure universal participation of States in the establishment of MPAs and coordination with other relevant competent organizations, provided that the ILBI adopting this approach was universally accepted. By making the establishment of those MPAs under the existing regional or sectoral regimes legally binding on all States parties to the ILBI, the global model would also obligate those States that are not parties to the regional regimes, but parties to the ILBI, to comply with the measures associated with those MPAs established under the existing regimes. This means that non-party States would also be legally bound by the MPAs established by existing regional or sectoral regimes via the ILBI on the condition that the non-party States are parties to the ILBI. As a result, if the ILBI adopting the global model was universally accepted and ratified, the global model would be better at ensuring universal participation of States in the establishment of MPAs than existing regional/sectoral regimes, and thus enhance further compliance of States with their general obligations to protect the marine environment and marine biodiversity. By establishing a process to recognize existing MPAs and complement the protection of those existing regional or sectoral MPAs, the global model would promote coordination of the management measures related to MPAs in ABNJ with existing legal regimes in relation to the establishment of MPAs in ABNJ. However, it should be admitted that the global model runs the risk of having a number of States who would probably not ratify the ILBI because of their disagreement with the global model. As indicated in the discussions of the PrepCom, there are some States that are not in favour of such a global model, such as the United States, Russia, Japan, Australia, New Zealand and so on.112 Rather, they prefer using existing mechanisms or emphasize that the institutional arrangements under the ILBI shall not contravene with the existing mechanisms nor interfere with the mandate of existing regional or sectoral bodies.113 If the ILBI, adopting the global model, is

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DOALOS (2017a), p. 49. DOALOS (2017b), para. 138; See also Id., p. 57. 111 See DOALOS (2017a), p. 57. 112 See IISD (2017), pp. 11–12, 15–16; See also DOALOS (2017a), p. 53; See also Millicay (2018), pp. 167–168. 113 IISD (2017), Ibid. 110

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not ratified by those States, the effectiveness of the global model would be weakened due to the lack of participation of those States.

4.2

Regional/Sectoral Model

Under the regional or sectoral model, any issues in relation to the establishment of MPAs would still be addressed within existing sectoral/regional regimes.114 However, the existing legal regimes related to the establishment of MPAs in ABNJ are highly fragmented.115 This is because the establishment of existing MPAs in ABNJ is addressed in various regional or sectoral regimes rather than an overarching global regime, and each regional regime only includes a limited number of States.116 In addition, the competence or scope of various relevant existing regimes or bodies related to the establishment of MPAs in ABNJ is limited and no holistic mechanism exists to coordinate these regional regimes.117 Due to such a fragmentation, it is difficult to ensure universal participation of States in the establishment of MPAs in ABNJ and to achieve the cooperation or coordination of various regional regimes for ensuring legal coherence and consistency in that respect.118 In addition, as analyzed by Fletcher et al., under this approach, due to the lack of a dedicated scientific body of a global institution and the reliance on the scientific bodies of existing regional or sectoral institutions, there may exist “gaps in the capacity of these existing bodies to consider elements currently outside their normal scope”.119 At this point, those elements outside the normal scope of those existing bodies may include the establishment of MPAs in ABNJ and management measures therein. Therefore, if the regional or sectoral model was adopted by the ILBI, the establishment of MPAs in ABNJ would still be addressed within existing fragmented legal regimes, and thus the shortcomings of existing legal regimes would still not be solved under the ILBI. Nevertheless, this model is still favoured by several States, such as Russia and Japan.120 Russia strongly objected to the creation of a new global institution for establishing MPAs in ABNJ, but preferred establishing those MPAs through

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DOALOS (2017b), paras. 96, 123, 241. Such a fragmentation is also an embodiment of the fragmented legal landscape related to the conservation of BBNJ, see Fletcher et al. (2017), p. 53. 116 The CCAMLR establishing CCAMLR MPAs has 25 members, the OSPAR Commission establishing OSPAR High Seas MPAs has 16 parties, and the SPAs Protocol by which the Pelagos Sanctuary was established has 17 parties. It should be noted that contracting parties or members of those existing regimes related to the establishment of MPAs in ABNJ are not the only States whose nationals or vessels are conducting activities in the MPAs established by those regimes. 117 See Drankier (2012), p. 341. 118 See Tanaka (2012), pp. 325–326. 119 Fletcher et al. (2017), p. 43. 120 See IISD (2017), pp. 11–12, 15–16; See also DOALOS (2017a), p. 53; See also Millicay (2018), pp. 167–168. 115

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existing specialized mechanisms.121 It can also be inferred from the discussions of the PrepCom that Japan preferred using or strengthening existing bodies, including RFMOs, rather than relying on an overarching global institution.122 However, if the ILBI simply recognized the competence of existing regimes rather than solving their shortcomings, there would still be a lack of global regime in respect of the establishment of MPAs in ABNJ, thus it would make little sense to have such an ILBI. As maintained by the European Union, there is a need for the ILBI to establish a global regime in that respect.123

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Hybrid Model

The hybrid model is a compromise-option between the global model and the sectoral/regional model. Under this model, the global institution would have, to some extent (but not fully), the competence to establish an MPA in ABNJ, together with the existing regimes, which would retain their competence in that matter.124 Nevertheless, the hybrid model would contribute to ensuring universal participation of States in the establishment of MPAs in ABNJ and the achievement of cooperation or coordination between different legal regimes related to such establishment. Firstly, the global institution under the hybrid model could oversee the decisionmaking process of existing regional/sectoral regimes by requiring States parties to the ILBI that are also parties to the existing relevant regimes to cooperate within the existing legal regimes.125 This would ensure that the existing legal regimes duly respect the guidance and process developed by the global institution, and contribute to the promotion of cooperation and coordination for the establishment of MPAs among relevant competent bodies. Secondly, the decisions made by existing regional or sectoral mechanisms might be legally binding on all States parties to the ILBI through the recognition by the global institution.126 Unlike the global model, there are less political objections to the hybrid model. Some of the States not favouring the global model, such as Australia and New Zealand, are in favour of this hybrid approach and consider this approach as a global mechanism of cooperation and coordination with relevant regional and sectoral bodies.127

121

See IISD (2017), pp. 11–12, 15–16. See DOALOS (2017a), p. 53. 123 Millicay (2018), pp. 167–168; See also DOALOS (2017a), p. 38. 124 DOALOS (2017b), para. 241. 125 Id., para. 122. 126 Ibid. 127 IISD (2017), p. 15. 122

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The Requirement of “Not Undermine”

As a preliminary conclusion, it can be argued that the global model and hybrid model are better options than the sectoral and regional model. This is because both the global model and hybrid model are helpful to solve the shortcomings of existing legal regimes by enhancing the universal participation of States in the establishment of MPAs in ABNJ and promoting the coordination and cooperation of the management measures related to MPAs in ABNJ among different global, regional and sectoral legal regimes. A further question is which one is better between the global model and the hybrid model. Under the global model, it might be possible for the establishment of MPAs and management measures therein adopted by the global institution to conflict with the measures adopted by existing regional or sectoral regimes.128 As required by UNGA Resolutions 69/292 and 72/249, the development of an ILBI shall “not undermine” existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies.129 Consequently, the institutional arrangements of the ILBI should “not undermine” the existing measures taken by regional or sectoral regimes or competence of existing institutions. Whether the global model would “not undermine” depends on how to interpret the phrase “not undermine”. As indicated by Scanlon, there are two different interpretations of this term.130 The first one requires that the ILBI should “not undermine” the authority or mandate of existing institutions and the measures under existing regimes, i.e. the ILBI should leave their mandates untouched.131 In accordance with this interpretation, the ILBI cannot create an overlapping mandate or weaken the competence of those existing institutions to operate.132 The second interpretation requires that the ILBI should “not undermine” the effectiveness or objectives of existing frameworks and bodies, which means improving or strengthening the effectiveness of existing frameworks and bodies would not be considered as “undermine”.133 If the first interpretation were adopted, then the global model would tend to be inconsistent with the requirement of “not undermine”. This is because, under this model, the competence of the global institution overlaps with the mandates of existing bodies, provided that the global institution was competent to adopt measures that fall within the competence of existing regimes. By contrast, if the second interpretation were adopted, it would not be likely for the global model to “undermine”. Even in case of overlap, the global

128

Illustrative of this point, it should be noted that the global model runs the risk of creating the possibility of a conflict between the measures adopted by the global mechanism of the ILBI and those adopted by the RFMOs and other organizations with sectoral mandates in ABNJ. See Tladi (2015), p. 668. 129 UNGA Res 69/292 (2015), paras. 1,3; UNGA Res 72/249 (2017), para. 7. 130 Scanlon (2018), pp. 405–416. 131 Scanlon (2018), pp. 406–407; See also IISD (2016), pp. 19–20. 132 Scanlon (2018), pp. 406–407. 133 Ibid.; See also IISD (2016), pp. 19–20.

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model would not reduce the effectiveness of existing regimes or bodies, but would possibly improve or enhance their effectiveness. Thus, the global model does not necessarily “undermine” existing regimes, and this depends on how to interpret the term “not undermine”. This section does not provide a definitive answer on how to interpret the term “not undermine”, but it should be noted that such interpretation would inevitably affect the choice of legal options for the institutional arrangements of the ILBI. Although the global model does not necessarily “undermine”, the hybrid model, in a general sense, would be less likely to “undermine” than the global model. This is because, under the hybrid model, the existing regional or sectoral regimes would still be relied upon, and the global institution would only play a complementary role and not have full competence. In this case, the hybrid model is less likely than the global model to cause conflict between the management measures adopted by the global institution and those adopted by existing regional or sectoral regimes. Therefore, it can be argued that the hybrid model is a better option than the global model in terms of meeting the requirement of “not undermine”. In conclusion, as noted by Millicay, it is not feasible to allocate all functions either to a global body under the ILBI or to existing regional/sectoral bodies.134 In terms of the establishment of MPAs in ABNJ, a hybrid model is an appropriate choice for the institutional arrangements of the ILBI. For one thing, both the hybrid model and global model are more capable of solving the shortcomings of existing regimes than the regional/sectoral model. For another, the hybrid model envisages less political objections and is less likely to undermine existing regimes than the global model. Thus, the hybrid model might be a better choice than the other two options. In this respect, a further question is, under the hybrid approach, to what extent global body under the ILBI might have the mandate in respect of the establishment of MPAs in ABNJ and to what degree the existing regional/sectoral body might have the mandate. At this point, the answer to this question is not yet clear and depends on further outcomes of the BBNJ negotiations.

5 Conclusion The three issues discussed above constitute central structural elements for the development of the ILBI and will shape its practical significance. While the relationship between the UNCLOS, the CBD and the ILBI raises questions of instrument interaction, it also raises questions of regime interaction. Indeed, the ILBI is expected to act as the bridging element between the law of the sea and biodiversity law in ABNJ. The way the instruments impact and complement one another will therefore be of major significance for understanding the role that the ILBI can play in solidifying the regime in ABNJ. For their part, the options for the institutional

134

See Millicay (2018), p. 175.

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arrangements guide us in analysing the different ways in which the institutional design of the ILBI could take shape, and how the ILBI could influence State and non-State actors’ practice on how to conserve and sustainably use BBNJ. The three structural elements analysed in this chapter cannot, however, be looked at without taking into consideration the necessity not to undermine existing frameworks, structures, instruments and bodies. Indeed, such necessity has been at the heart of the discussions of the PrepCom, has found its way to the Report of the Committee, and remains a central concern for the delegations taking part in the IGC. Although the impact of the terms remains uncertain, they will shape the way the ILBI is constructed and, within its framework, how mechanisms are developed, and existing bodies interact. The protection and conservation of ABNJ is at a critical juncture, where we must take advantage of the momentum that the BBNJ process enjoys and of the enthusiasm of State and non-State actors towards the next stages of the process. Yet we should remain prudent in anticipating the real impact that the ILBI will have. Positions vary, so do interests, and many crucial elements remain far from triggering consensus. Finding ways to rally certain dissident actors on critical issues will also require diplomatic perseverance. The progress achieved through almost 15 years of discussions on the topic must be acknowledged, but the work that still needs to be done should not be underestimated.

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Documents Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (4 December 1995, entered into force 11 December 2001), 2167 UNTS 3 Conference of the parties to the convention on biological diversity (1995). Jakarta Mandate on Marine and Coastal Biological Diversity. CBD COP Dec II/10 Conference of the parties to the convention on biological diversity (2004a). Akwé: Kon Voluntary guidelines for the conduct of cultural, environmental and social impact assessments regarding developments proposed to take place on, or which are likely to impact on, sacred sites and on lands and waters traditionally occupied or used by indigenous and local communities. In: Article 8(j) and related provisions. CBD COP Dec VII/16 Conference of the parties to the convention on biological diversity (2004b). Protected areas. CBD COP Dec VII/28 Conference of the parties to the convention on biological diversity (2006). Impact assessment: voluntary guidelines on biodiversity-inclusive impact assessment. CBD COP Dec VIII/28 Conference of the parties to the convention on biological diversity (2010). Marine and Coastal Biodiversity. CBD COP Dec X/29 Conference of the parties to the convention on biological diversity (2012). Marine and coastal biodiversity: ecologically or biologically significant marine areas. CBD COP Dec XI/17 Conference of the parties to the convention on biological diversity (2014). Marine and coastal biodiversity: ecologically or biologically significant marine areas (EBSAS). CBD COP Dec XII/22 Conference of the parties to the convention on biological diversity (2016). Marine and coastal biodiversity: ecologically or biologically significant marine areas. CBD COP Dec XIII/12 Convention on Biological Diversity (5 June 1992, entered into force 29 December 1993), 1760 UNTS 79 Convention on Biological Diversity. About the Nagoya Protocol: https://www.cbd.int/abs/about/ default.shtml/ Convention on Biological Diversity. Aichi Biodiversity targets: https://www.cbd.int/sp/targets/ Convention on Biological Diversity. History of the Convention: https://www.cbd.int/history/ Convention on Biological Diversity. Strategic Plan for Biodiversity 2011-2020, including Aichi Biodiversity Targets. Available via https://www.cbd.int/sp/ Convention on International Trade in Endangered Species of Wild Fauna and Flora (3 March 1973, entered into force 1 July 1975), 993 UNTS 243 Convention on the Conservation of Migratory Species of Wild Animals (23 June 1979, entered into force 1 November 1983), 1651 UNTS 333 Convention on Wetlands of International Importance especially as Waterfowl Habitat (2 February 1971, entered into force 21 December 1975), 996 UNTS 245 Division of Oceans Affairs and the Law of the Sea (2017a). Chair’s non-paper on elements of a draft text of an international legally-binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. In: Preparatory Committee established by General Assembly resolution 69/292: Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine

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Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction. Available via Earth Negotiation Bulletin. Available via http://enb.iisd.org/download/pdf/enb25141e.pdf International Institute for Sustainable Development IISD (2018). Summary of the First Session of the Intergovernmental Conference on an International Legally Binding Instrument under the UN Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction. In: 1st Session of the Intergovernmental Conference (IGC) on an International Legally Binding Instrument under the United Nations Convention on the Law of the Sea (UNCLOS) on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ). Available via Earth Negotiation Bulletin. Available via http://enb.iisd.org/download/pdf/enb25179e.pdf International Union for Conservation of Nature (IUCN), Recommendations for the Intergovernmental Conference. Position Paper, 2018. Available via https://www.iucn.org/sites/dev/files/ content/documents/iucn_bbnj_recommendation_paper_draft_21_aug_2018_3.pdf Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (29 October 2010, entered into force 12 October 2014), 1760 UNTS I-30619 Preparatory Committee established by General Assembly resolution 69/292: Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (2017). Report of the Preparatory Committee established by General Assembly resolution 69/292: Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. UN Doc A/AC.287/ 2017/PC.4/2 United Nations Convention on the Law of the Sea (10 December 1982, entered into force 16 November 1994), 1833 UNTS 3 United Nations General Assembly (2002). Oceans and the law of the sea. UNGA Res 57/141 United Nations General Assembly (2003). Oceans and the law of the sea. UNGA Res 58/240 United Nations General Assembly (2004). Oceans and the law of the sea. UNGA Res 59/24 United Nations General Assembly (2015). Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. UNGA Res 69/292 United Nations General Assembly (2017). International legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. UNGA Res 72/249 World Summit on Sustainable Development (2002). Plan of Implementation of the World Summit on Sustainable Development. UN Doc A/CONF.199/L.7

Catherine Blanchard PhD Fellow at the Netherlands Institute for the Law of the Sea and the Utrecht Centre for Water, Oceans and Sustainability Law of Utrecht University. Her research focuses on the sustainable management of fisheries in areas beyond national jurisdiction, looking at alternative regulatory and governance mechanisms. She joined the Dutch delegation to the third and fourth meetings of the BBNJ Preparatory Committee as well as the first meeting of the intergovernmental conference. Otto Spijkers Professor of public international law at the China Institute of Boundary and Ocean Studies (CIBOS) of Wuhan University. Previously, he was lecturer of public international law at Utrecht University, Senior Research Associate with the Netherlands Institute for the Law of the Sea (NILOS), and researcher with the Utrecht Centre for Water, Oceans and Sustainability Law

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(UCWOSL). He is also a member of the Committee on the Role of International Law in Sustainable Natural Resource Management for Development of the International Law Association. Wen Duan PhD Fellow in international law of the sea at the Netherlands Institute for the Law of the Sea and the Utrecht Centre for Water, Oceans and Sustainability Law of Utrecht University. His research project is titled ‘Study on the Establishment and Management of Marine Protected Areas in Areas beyond National Jurisdiction: Analysis of International Legal Issues’. His PhD research is funded by the China Scholarship Council.

Chapter 20

The European Union and the Future International Legally Binding Instrument on Marine Biodiversity Beyond National Jurisdiction Pascale Ricard

Abstract The present chapter aims at analysing the relationship between the European Union and the future International legally binding instrument (ILBI) related to the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction—the high seas and the Area (deep seabed). The chapter will begin with a brief introduction detailing the manner in which the European Union has interacted with the international law of the sea. A particular focus will be placed on the difficulty that has arisen in distinguishing between the exclusive and shared competences of the EU in regard to the conservation of biological resources and the protection of the environment, at both a substantial and institutional level. Thereafter, the chapter will be two-pronged, elaborating upon the formal participation of the EU as regards the future instrument and the specificities of its substantive participation. Il also addresses the potential consequences for the Union of the adoption of such an agreement, in terms of its impact on EU maritime policy, on the exercise of its competences and on its participation in international institutions.

1 Introduction: The European Union and the Law of the Sea The European Union (EU) occupies a unique position in international law of the sea, as it is the only organization that is a party to the United Nations Convention on the Law of the sea (UNCLOS), otherwise constituted by States.1 This situation was

1 Herein after ‘UNCLOS’ (10 December 1982, entered into force 16 November 1994) UNTS 1833 3. The EU signed the UNCLOS on December 7th 1984, and deposited its instrument of formal confirmation on April 1st 1998, in conformity with Art. 216 of the TFEU (Council Decision 98/392/

P. Ricard (*) Aix-Marseille University, Research Center in International and European Law, Aix-en-Provence, France e-mail: [email protected] © Springer Nature Switzerland AG 2020 M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea, https://doi.org/10.1007/978-3-030-42671-2_20

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enabled by Article 305(1) of the Convention, which provides that “This Convention shall be open for signature by: [. . .] international organizations, in accordance with Annex IX.” Annex IX of the UNCLOS deals, indeed, with the concrete modalities of the participation of “international organizations” in the Convention. It specifies in Article 4(3), which mirrors the specific nature of the European Union, that “[s]uch an international organization shall exercise the rights and perform the obligations which its member States which are Parties would otherwise have under this Convention, on matters relating to which competence has been transferred to it by those member States. The member States of that international organization shall not exercise competence which they have transferred to it”. Those elements are aimed at clarifying the repartition of competences between the EU and member States toward third States Parties of the UNCLOS. The EU has mixed competence for the conservation and sustainable use of marine biodiversity2 beyond national jurisdiction. There is, first, a sharing of competences between member States and the Union in the fields of scientific research, protection of the environment and fisheries. Second, the EU has an exclusive competence for the conservation of marine biological resources, in the context of the common fisheries policy. Article 4(2) of the Treaty on the functioning of the European Union (TFEU) states indeed: “[s]hared competence between the Union and the Member States applies in the following principal areas: (a) internal market;[. . .] (d) agriculture and fisheries, excluding the conservation of marine biological resources; (e) environment; (g) transport; (i) energy; [. . .]”. In the exercise of shared competences, States can adopt protective and reinforced measures where the European Union did not take any.3 Annex IX of the UNCLOS provides, moreover, that the international organization shall, at the time of the signature of the Convention, “make a declaration specifying the matters governed by this Convention in respect of which competence has been transferred to that organization by its member States which are signatories, and the nature and extent of that competence”.4 The Declaration of competence sets

EC). See for instance Churchill (2017), p. 32. About the role of the EU in the law of the sea, see notably Churchill (2018), pp. 290–323. 2 The term ‘biodiversity’ can be defined according to Art. 2 of the Convention on biological diversity as “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.” 3 Thanks to its exclusive competence regarding the conservation of marine biological resources, the EU is part of several regional fisheries organizations, as the North-East Fisheries Commission, or the International Commission for the Conservation of Atlantic Tuna. See Dross (2014). 4 See Art. 2 of Annex IX to the UNCLOS.

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the scope and extent of the participation of the organization.5 Moreover, it is also deemed “to address the question of the international responsibility of the Union and its Member State under such ‘mixed agreements’.”6 The European Community submitted its Declaration of competence upon the signature of the UNCLOS on 7 December 1984, and made a Declaration upon formal confirmation on 1 April 1998,7 identifying the “[m]atters for which the Community has exclusive competence”, which are notably “the conservation and management of sea fishing resources [. . .]. This competence applies to waters under national fisheries jurisdiction and to the high seas”. It is noteworthy that this Declaration has not been updated, and today the formulation does not entirely correspond to the formulation of the TFEU, as those competences have an “evolving nature”,8 Although “in practice, the declarations of competences are only very rarely completed or amended”,9 the evolution can be indirect or result from the implementation of the treaty, as the repartition of competences is often voluntary left partly blurred.10 Where the repartition of competences is not clear, Annex IX Article 6 states that the organization and the member States concerned shall “provide this information” to any State party which so request and, if they do not provide the relevant information within a “reasonable time”, or if they provide contradictory information, this may lead to “joint and several liability”.11 However, it is sometimes difficult to distinguish between the shared competences of the EU for fisheries or environment, and its exclusive competence for the conservation of marine biological resources, as the two fields are closely linked (see infra Sect. 2.2). This ambiguous repartition of competences, then, creates not only a tension between the Organization and its member States, but also adds level of

5 Art. 4(2) of the UNCLOS states that “[a]n international organization shall be a Party to this Convention to the extent that it has competence in accordance with the declarations, communications of information or notifications referred to in Art. 5 of this Annex.” 6 Heliskoski (2013), p. 190. See the ITLOS advisory opinion of 2 April 2015, Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC), case n
21, §164. 7 Declaration concerning the competence of the European Community with regard to matters governed by the United Nations Convention on the Law of the Sea of 10 December 1982 and the Agreement of 28 July 1994 relating to the implementation of Part XI of the Convention (7 December 1984), available on the website of the Division of the United Nations for Oceans Affairs and the Law of the Sea (DOALOS), available at http://www.un.org/Depts/los/convention_agreements/ convention_overview_convention.htm. 8 Heliskoski (2013), pp. 205–207. 9 Id. at p. 207. 10 Id. at p. 209. For the author, “the reasons beyond the Union’s reluctance to provide specific declarations with updates relate to the fact that the defining of the scope and nature of the Union’s competence runs counter to one of the fundamental characteristics (some would argue, virtues) of mixed agreements; the technique enables questions of the scope and nature of Union’s competence to be postponed and to be decided on a case by case basis in a contextual fashion.” 11 For the interpretation of the liability regime settled by Annex IX, see ITLOS advisory opinion of 2 April 2015, Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC), case n
21, §§168 and followings.

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complexity and legal uncertainty, which could ultimately be detrimental for the effective protection of marine environment and biodiversity. All these competences and fields are of interest in the context of the International legally binding instrument (ILBI) currently being negotiated within the United Nations and dealing with the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction.12 The following chapters propose to examine the formal and substantive modalities and implications of the EU’s participation in the future ILBI, while presenting the challenges and opportunities of such participation.

2 European Union’s Formal Participation in the Future International Legally Binding Instrument on Marine Biodiversity 2.1

The Tension Between Shared and Exclusive Competences of the European Union and Its Consequences in the Context of the Negotiation of a Mixed Treaty

In 2011, the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction13 agreed on the structure and content of a “package deal”, which is a series of elements gathering, “together and as a whole”, marine genetic resources, area-based management tools including marine protected areas, environmental impact assessment, capacity building and transfer of marine technology.14 Those elements are the constitutive elements of the future ILBI on the conservation 12 The commercial policy, which could be of interest as regards the future ILBI, is also an exclusive competence of the European Union and the research and development policy has a particular status. Art. 3(1)(e) TFEU and 4(3): “In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.” 13 The ‘Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction’ (here after the ‘BBNJ Working Group’) was introduced by Resolution 59/24 of the UNGA, adopted on 17 November 2004, indicating in its paragraph 73 that the BBNJ Working Group’s mandate was “to indicate, where appropriate, possible options and approaches to promote international cooperation and coordination for the conservation and sustainable use of marine biological diversity beyond national jurisdiction”. Indeed, according to Art. 22 of the UN Charter, the UNGA can create subsidiary bodies necessary to the accomplishment of its functions. 14 UNGA Resolution 66/231 (2011), Oceans and the Law of the Sea, Annex – Recommendations of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction, §(a). (see infra Sect. 3.1 for a detailed explanation).

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and sustainable use of marine biodiversity beyond national jurisdiction, which negotiation started in September 2018.15 The legal basis for the EU to participate in the discussions related to the conservation of marine biodiversity beyond national jurisdiction is exactly the same as the terms for the Preparatory Committee for the development of a legally binding instrument,16 as set out in Resolution 72/249, wherein the UNGA decided that “for the meetings of the conference, the participation rights of the international organization that is a party to the Convention shall be as in the Meeting of States Parties to the Convention.”17 This latter resolution, which is quite recent, is entitled “Participation of the European Union in the work of the United Nations”, and gives the Union only a status of “observer”. The EU, then, as a Party to the UNCLOS in addition to its status as observer to the United Nations, can by exception directly participate to the discussions on marine biodiversity beyond national jurisdiction, stressing its very particular and important role as regards the international law of the sea. It should be stressed that this right to directly and fully participate in discussions is a very important development compared to past practice. The EU's full and direct participation right had indeed in the past been denied on several occasions, before being enshrined in resolution 69/292. For example, the EU did not have such status at the time of the negotiations of the 1995 Straddling Fish Stocks Agreement, although the legal configuration was broadly the same. This is probably why resolutions 69/292 and 72/249 add explicitly: “this provision shall constitute no precedent for all meetings to which Assembly resolution 65/276 of 3 May 2011 is applicable”, this situation remaining an exception. The ambiguity affecting the substantive repartition of competences (exclusive or shared) within the EU mentioned above might entail other difficulties regarding the institutional repartition of competences between the Council, in the name of the EU and its member States and the Commission, representing the EU itself, in the context of the negotiation of the new international instrument. Indeed, although there is a priori a clear repartition of the institutional competences between the Council and the Commission, it is not that clear in practice.18 On the one hand, according to 15 UNGA Resolution 72/249, paragraph 2, adopted on 24th December 2017 which convened, as a result of the processes conducted by the Preparatory Committee, an intergovernmental conference with the mandate of negotiating a future legally binding instrument under the basis of Resolution 69/292 and of the recommendations of the ‘PrepCom’. Payne (2017). 16 Resolution 69/292, according to which the UNGA decided that ‘the rules relating to the procedure and the established practice of the committees of the General Assembly shall apply to the procedure of the preparatory committee, and that, for the meetings of the preparatory committee, the participation rights of the international organization that is a party to the Convention shall be as in the Meeting of States Parties to the Convention’, adding that ‘this provision shall constitute no precedent for all meetings to which Assembly resolution 65/276 of 3 May 2011 is applicable’ (§1(j)). 17 UNGA Resolution 72/249 (2017), §11. 18 As Elie Jarmache notes, “on aurait pu penser la question des compétences résolue et bien établie dans le système européen de prise de décision, et le rôle respectif des différents acteurs bien connu. Force est de constater qu’il n’en est rien”. Jarmache (2014), p. 17. The author refers to M Dony:

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Article 17(1) of the Treaty on the European Union (TUE), “[w]ith the exception of the common foreign and security policy, and other cases provided for in the Treaties, [the Commission] shall ensure the Union's external representation.”19 On the other hand, the Council, which represents the gathering of the Union and its member States, also plays an important role in the negotiation of international treaties: according to Article 218(2) of the TFEU, “[t]he Council shall authorize the opening of negotiations, adopt negotiating directives, authorize the signing of agreements and conclude them”, and following Article 192(4) of the TFEU: “[t]he European Parliament and the Council, acting in accordance with the ordinary legislative procedure [. . .], shall decide what action is to be taken by the Union in order to achieve the objectives referred to in Article 191.”20 The combination and articulation of those articles might, then, be complicated, especially in the context of the opening of the negotiation of a mixed treaty. In case of overlap of competences, however, the solution is to be found in cooperation: Article 13(2) of the TUE provides for the principle of “mutual sincere cooperation” between European institutions, which remains the cornerstone of inter-institutional relationships. As the future ILBI will be a mixed treaty, member States must be represented in the negotiations, in order to protect their interests. Indeed, some substantial issues cover shared and exclusive competences at the same time. For instance, marine protected areas are aimed at protecting marine biological resources as well as the marine environment in general, and can also be combined with measures related to fisheries. The participation of member States in the discussions was stated in the Decision of the Council authorizing the opening of negotiations on behalf of the European Union on the elements of a draft text of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction,21 in the context of the creation of the Preparatory Committee. The substance of this Decision was reiterated at the opening of the “official” negotiating process in 2018, although the relevant document is not public.22 After recalling, in the preamble, that “alongside its Member States, the Union should participate in the “l’attribution des compétences à l’Union s’est faite de façon pragmatique, au fil de la révision des traités, sans vision systématique d’ensemble, ce qui induit un manque fragrant de lisibilité. Ceci a alimenté une crainte diffuse vis-à-vis d’un caractère de plus en plus envahissant de l’action de l’Union.” 19 See, also, Art. 335 of the TFEU: “[i]n each of the Member States, the Union shall enjoy the most extensive legal capacity accorded to legal persons under their laws [. . .]. To this end, the Union shall be represented by the Commission.” 20 Art. 191 deals with the Union policy on the environment. 21 Council Decision (EU) 2016/455 of 22 March 2016 established by the General Assembly resolution 69/292. See also, more generally, the document of the Council of the EU, EU Statements in multilateral organizations – General Arrangements, 2 October 2011, doc. 15901/11, and Flaesch-Mougin (2013), p. 571. 22 See the Proposition of decision from the Council of 4th of January 2018: https://eur-lex.europa. eu/legal-content/en/ALL/?uri¼CELEX%3A52017PC0812#document2. See also the document 6841/18 of the Council of the EU, 12 March 2018, §3.

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negotiations” and that “[t]he matters covered by the negotiations may fall within the areas of Union competence as well as within the areas of Member States competence”, the Decision of the President of the Council provides in Article 2 that “[t]he Commission shall conduct the negotiations on behalf of the Union, as regards matters falling within the Union's competence and in respect of which the Union has adopted rules.” Moreover, according to Article 4 of this mandate of negotiation, “to the extent that the subject matter of the negotiations falls within the competences of both the Union and its Member States, the Commission and the Member States should cooperate closely during the negotiating process, with a view to ensuring unity in the international representation of the Union and its Member States.” The Presidency of the Council and the Commission were vested with distinct mandates. The Commission was only granted a mandate of negotiation for issues deriving from treaties (TFEU), or from its external competence.23 Conversely, the Presidency of the Council retains the mandate to act in all other matters, on behalf of the EU and its member States. The Council, in document 6841/18 of 12 March 2018, stressed “the mixed nature of the negotiations [on BBNJ] and the related duty of loyal cooperation”,24 duty that weight on both the Commission and the Council. In practice, in order to ensure unity and clarity in the common European position, delegates from the Council and Commission speak with one voice and States can only participate in the negotiation if a common position has been agreed upon. A joint position is usually elaborated before the discussions in New York, within the framework of the Working Party on the Law of the Sea (COMAR), which is the European “special committee in consultation with which the negotiations must be conducted.”25 That process and the need to agree on a uniform position by the EU and its member States result in some difficulties that have significant consequences for the elaboration of the future ILBI instrument. For instance, the compromise that has to be reached before the actual international negotiations likely leads to a “minimum common denominator”, which can undermine the bargaining power of the EU. It indeed appears very difficult to reach a common position for the EU member States, due to the diversity of views expressed among European States.26 The difficulty of reaching a common, coherent and satisfactory position of the EU also entails a slow capacity to react. As a result, the EU position in the negotiation is very often too soft and convoluted, as a result of an internal compromise, while the position of other States, such as Monaco, appears more elaborate and straightforward. According to Geert De Baere, “while the position may in principle be fairly 23

According to the case ERTA, 22/70, CJEC, 31 March 1971, Commission v. Council, Rec 1971 p. 263. For a clarification of the theory of the external implicit competences of the EU, see Michel (2006), pp. 4–8. See also Michel (2003). 24 Document 6841/18 of the Council of the EU, 12 March 2018, §3. 25 Ibid. 26 In the context, for instance, of Brexit: the United Kingdom has quite often the most “extreme” position on certain issues, as the one of genetic resources or the principle of freedom of navigation or access to marine genetic resources.

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straightforward, in practice the fact that the European Union’s environmental competences are shared is a potential ground for interminable inter-institutional disputes.”27 One can add that France could, in the same way as it does in regional fisheries management organisations, be represented independently of the Union on behalf of its territories not belonging to the European Common Space. However, such a possibility would complicate the discussions, and could be seen as undermining the principle of cooperation in good faith, since the matter at stake is international negotiation, and not competences of representation in international organizations.

2.2

The Tension Between Shared and Exclusive Competences of the EU and Its Member States and Key Issues Regarding the Participation in International Institutions and the Exercise of Mixed Competences

The external representation of the EU raised some questions and inter-institutional conflicts in other institutions, which could be anticipated in order to avoid such tensions and difficulties in the case of the future ILBI. In order to avoid difficulties of coordination, the Council of the EU already elaborated some guidelines, collected in the document EU Statements in multilateral organizations – General Arrangements dealing with the elaboration of positions and declarations of the Union.28 It states: “[g]iven the sensitivity of representation and potential expectations of third parties, it is essential that, in conformity with current practice, the preparation of statements relating to the sensitive area of competences of the EU and its Member States should remain internal and consensual.” The decision adds, furthermore, that “[s]tatements will reflect EU positions agreed in conformity with the decision making procedures as foreseen in the Treaties”, and that “[s]hould the statement refer exclusively to actions undertaken by or responsibilities of the EU in the subject matter concerned including in the CFSP, it will be prefaced by ‘on behalf of the European Union’.” These guidelines are extremely useful in the context of mixed agreements and institutions dealing with marine biodiversity conservation and sustainable use. Nonetheless difficulties may still arise and have been encountered recently in two different instances: first, before the International Tribunal for the Law of the Sea (ITLOS), and second, in the context of the Commission for the Conservation of Antarctic Marine Living Resources CCAMLR),29 illustrating partly the

27

De Baere (2013), p. 642. See Council of the EU, EU Statements in multilateral organizations – General Arrangements, 2 October 2011, doc. 15901/11. See Flaesch-Mougin (2013), p. 571. 29 In another field, such difficulties have also explicitly emerged, as it is the case for the negotiations of the convention on mercury. De Baere (2012), pp. 640–655. 28

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“determination of the Commission to assert its newly accentuated primary role in the international representation of the European Union.”30 It is important to keep those difficulties in mind while studying the relationship between the EU and the future ILBI. First, in the context of the advisory proceedings before the ITLOS in 2015 in relation to the responsibility of the EU as regards illegal, unreported and unregulated fishing in the EEZ of coastal States with whom it collaborates bilaterally,31 members of the EU denied to the Commission the competence to express itself on behalf of the Union. This reflected a very tense situation between the two EU institutions. Indeed, the Council (supported by ten member States) introduced a case before the Court of Justice of the European Union (CJEU) in order to cancel the decision of the Commission to produce a written contribution on behalf of the Union in the ITLOS advisory proceedings.32 The Council’s claim was however rejected in its entirety.33 The Court considered, indeed, that the questions raised in the submission of the request for consultative opinion dealt with, at least, one area of exclusive competence of the EU, which, as a Party of the UNCLOS, had the right to participate in the ITLOS advisory proceedings.34 Moreover, although Article 335 TFEU only refers to the representative competence of the Commission before internal jurisdictions, the Court recalled that the representative competence of the EU legitimately extended to international jurisdictions, according to the related case law.35 It added that the participation in a case before a jurisdiction did not fall under the definition of a “policy” under Article 16 of the TFEU on the competence of the Council.36 The Commission could then exercise its exclusive competence dealing with the

30

De Baere (2013), p. 648. ITLOS advisory opinion of 2 April 2015, Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC), case no. 21. 32 See on this issue and also on the substance of the advisory opinion, Oanta (2017), p. 48 and following. 33 High Court, 6 October 2015, Council of the European Union v European Commission, Case C-73/14. See also Morin (2015), p. 3. 34 Council of the European Union v European Commission, Case C-73/14, Id. at §55. 35 Id. at §58: “However, it is clear from the case law of the Court that Art. 335 TFEU, although restricted to Member States on its wording, is the expression of a general principle that the European Union has legal capacity and is to be represented, to that end, by the Commission (see, to that effect, judgment in Reynolds Tobacco e.a./Commission, C-131/03 P, EU:C:2006:541, paragraph 94).” 36 Id. at §63 Art. 218(9) TFEU “means that the application of that provision concerns the positions to be adopted on behalf of the European Union in the context of its participation, through its institutions or, as the case may be, through its Member States acting jointly in its interests, in the adoption of such acts within the international body concerned. The European Union was invited to express, as a party, a position ‘before’ an international court, and not ‘in’ it”. For the Chamber Art. 218 is not applicable here: “by sending the written statement, on behalf of the European Union, to ITLOS in Case No. 21 without having submitted its contents to the Council for approval, the Commission did not infringe that provision” (§76). 31

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conservation of marine biological resources related to fisheries, by submitting a written contribution to the tribunal.37 On the contrary, according to others, the Commission could not invoke the exclusive competence, as the opinion dealt with other issues, such as the liability and responsibility of member States. In a nutshell, the question of the repartition of the competences between the Commission and the Council in the context of competences related to the protection of marine environment remains particularly sensitive. Second, the issue of the representative competence of the Union within other international organizations emerged within the CCAMLR, which is also a mixed agreement, for the purpose of the creation of a marine protected area. It is the Commission, here, that introduced an action on partial annulation against the decision of the Council on the approval of the submission of a document dealing with the creation of a protected area in the Weddel sea.38 The Commission claimed that: “[a]s, in view of the aim, content and context, the envisaged establishment of a marine protected area in the Weddell Sea falls within the exclusive Union competence for the conservation of marine biological resources, the Council committed an error in law by imposing the submission on behalf of the Union and its Member States and violated Article 3(1)d TFEU.”39 The case was introduced on 23 November 2015.40 A second action for annulment under Article 263(2) TFEU was introduced by the Commission on 20 December 2016, about the decision of the Council of 10 October 2016 dealing with the establishment of the position of the European Union for the 35th annual meeting of the CCAMLR, about the creation of three new marine protected areas, in the Weddell sea, the Ross sea and the East Antarctic. The

37 Michel Morin stresses then the bad faith of member States: “en réalité, ce n’est pas le Conseil mais la Commission qui avait des motifs d’introduire un recours, non contre le Conseil puisque celui-ci n’a pas participé à l’instance devant le TIDM, mais contre tous les Etats membres qui ont adressé à ce tribunal des exposés écrits puisque ce sont eux qui ont violé le principe d’attribution des compétences au sein de l’UE.” Morin (2015), p. 4. 38 Commission Decision of 18.11.2015 concerning the lodging of an action for the partial annulment of the Council Decision of 11 September 2015, as reflected in point 65 of the summary minutes of 23 September 2015 of the 2554th meeting of the Committee of Permanent Representatives, on the endorsement of the submission, on behalf of the Union and its Member States, of a reflexion paper to the Commission for the Conservation of Antarctic Marine Living Resources on the creation of a future marine protected area in the Weddell Sea. European Commission, Decision C(2015) 8166. 39 Adding: “In addition, even if the envisaged measure would possibly fall within the shared competence of the Union and the Member States (quod non), the Council failed to properly take into account that a general decision had already been taken by the Union, i.e. the Union acting alone, to support the establishment of marine protected areas, and that the envisaged measures may affect existing Union measures.” 40 Case introduced 23 November 2015, European Commission v Council of the European Union, Case C-626/15. The Commission invoked the fact that “by considering that competence in the matter is shared and indicating, consequently, that the reflection document should be decided by consensus and be submitted on behalf of the European Union and its Member States, the contested decision is unlawful, in that it thus precludes the Commission from submitting that document on behalf of the European Union alone, in breach of the European Union’s exclusive competence in the matter (and of the Commission’s prerogatives to represent the European Union).”

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Commission considered again that its competence in this field is exclusive and that the decision, thus, must be adopted on behalf of the EU only and not of the EU and its member States. The Council, according to the Commission, acted in opposition to the legal context, the aim and the content of the measure contested.41 Recalling that “[s]uch questions of competence are questions of power that have been fiercely debated in legal proceedings for decades”,42 the advocate general Juliane Kokott affirmed, in its joined conclusions related to both cases, that “[t]he Court’s judgment in these two cases will form a further piece in the complex mosaic of the external competences of the Union and its Member States produced by the Treaty of Lisbon.” Moreover, and more precisely, she considered that “the present case offers an opportunity to clarify whether the existence of a competence shared between the Union and its Member States necessarily requires joint (‘mixed’) action by the Union and its Member States in international bodies or whether the Union is also permitted, or even obliged, to take external action alone.”43 The advocate general, referring to the definition of shared competences between the EU and its member States, concluded on the “sufficient competence” of the Commission, on behalf of the Union only and on its own, to “participate alone in the discussions and decisions in the CCAMLR on the establishment of marine protected areas in the Antarctic.”44 The CJEU did not follow the conclusions of the advocate general Kokott and the action has been dismissed in its entirety. The Court agreed with the advocate general on the fact that the measures contested were adopted in the context of the protection

41

Introduced 20 December 2016, European Commission v Council of the EU, C-659/16. Opinion of Advocate General Kokott delivered on 31 May 2018, joint cases C-626/15 and C-659/ 16, European Commission v Council of the European Union. 43 Id. at §2. 44 Id. at §§108–109. See also §117: “[a]gainst this background, the Union must be considered not only to have had a competence in the field of environmental policy for all the measures to be discussed or decided in the CCAMLR, but also to have exercised that competence fully. The member States were therefore prevented, pursuant to the second sentence of Art. 2(2) TFEU, from exercising their own competences in respect of the same subjects, even only by acting alongside the Union in the CCAMLR”, and the conclusion §139. To decide, the advocate general relied on a “centre of gravity approach”, which means that the judge will have to balance and choose which competence, among the environmental, research, and fisheries fields of competences, is the “centre of gravity”, or the closest and principal objective of the decision, leading to the determination of its legal basis (Id. at §79). Under this approach, “the Antarctic marine protected areas to which the contested 2015 and 2016 decisions were dedicated did not, according to their centre of gravity, constitute fisheries policy measures with an environmental conscience, but environmental protection measures with—very serious—implications for fishing” (Id. at §97). Under this argumentation, the Commission would be unsuccessful in its claims. However, finally, the, advocate concluded that the Commission was competent to act on behalf of the EU on its own, even in the context of the exercise of a shared competence: “[t]here is a need for mixed action by the Union and its Member States on the international stage only where the Union itself does not have sufficient exclusive or shared competences to act alone in relation to third countries or in international bodies. Only if the Union does not have powers of its own is it absolutely necessary for the Member States to participate alongside the Union in international matters.” 42

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of the marine environment and not for the conservation of fisheries resources only. However, unlike the advocate general, who concluded on the application of Article 2 (2) TFEU on the definition of shared competences of the EU, the Court stated on the facts that “to permit the European Union to have recourse, within the CCAMLR, to the power which it has to act without the participation of its Member States in an area of shared competence, when, unlike it, some of them have the status of Antarctic Treaty consultative parties, might well, given the particular position held by the Canberra Convention within the system of Antarctic agreements, undermine the responsibilities and rights of those consultative parties—which could weaken the coherence of that system of agreements [. . .].”45 The Council, finally, was competent to adopt the contested documents not only in order to ensure internal coherence, as regards the definition of shared competences, but also to protect the external coherence of the Antarctic Treaty System, although it acted in the field of shared competences without member States’ participation. In conclusion to an article on “The Protection of Biodiversity in the Framework of the Common Fisheries Policy: What Room for the Shared Competence?”, Marta Chantal Ribeiro focused on the “balance and tension between exclusive and shared competences” of the EU.46 The same argument could be made here: there is indeed undoubtedly a tension (substantive and institutional) between shared and exclusive competences of the EU regarding the conservation of marine environment and biodiversity.

3 The European Union and the Substance of the Future International Legally Binding Instrument on Marine Biodiversity 3.1

The Balanced and Pragmatic Position of the European Union Regarding the Elements of the Package Deal

As mentioned above, the future regime of areas beyond national jurisdiction should fit the elements of the package deal agreed on in 2011.47 The elements of the package indeed remain at the centre of the discussions of the intergovernmental conference, with the mandate of negotiating a legally binding instrument on the basis of Resolution 69/292 and of the recommendations of the Preparatory Committee. The conference met for the first time from 4th to 17th September 201848 as settled in 45

European Commission v. Council of the European Union, Judgment of the Court (Grand Chamber), 20 November 2018, joined cases C-626/15 and C-659/16, §133. 46 Ribeiro (2017), pp. 65–86. 47 Annex to Resolution 66/231 of the UNGA. 48 IISD Reporting service, “Summary of the First Session of the Intergovernmental Conference on an International Legally Binding Instrument under the UN Convention on the Law of the Sea on the

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Resolution 72/249.49 The package deal covers marine genetic resources, area-based management tools, including marine protected areas, environmental impact assessments, in addition to capacity building and transfer of marine technology, which are to be studied separately.

3.1.1

Marine Genetic Resources

First, as regards marine genetic resources, including the sharing of benefits, States will have to decide whether the exploitation of those resources must be governed by the principle of the freedom of the high seas, should fall under the common heritage of mankind regime, or should be governed by an alternative, intermediate solution. The EU is in favour of the creation of a balanced regime permitting the sharing of benefits resulting from the exploitation of marine genetic resources, while refusing to consider them under the common heritage status. The Nagoya Protocol under the Convention on Biological Diversity could be an inspiration for such a complementary benefit-sharing regime for areas situated beyond national jurisdiction: although it does not apply in areas beyond national jurisdiction, its principles, such as the principle of equity, could be relevant for the elaboration of a specific regime for marine genetic resources beyond national jurisdiction. The EU is, so far, in favour of a non-monetary sharing of benefits rather than a monetary sharing of benefits, meaning a benefit-sharing focused mainly on education, sharing of research results, capacity building and partnerships.50 However, it remained pragmatic during the discussions, suggesting that the agreement would “set out the types of benefits that could be shared”, in order not to oppose too radically the position of the Group of the 77 and China. The EU defends a very flexible approach for the access and utilization of marine genetic resources, based on the provisions of the Convention dealing with marine scientific research in the Area and in the high seas (Articles 242 and 244 on cooperation and dissemination, as well as the general provisions on marine technology transfer). The access should be free, according to the EU, with a process of ex

Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction: 4-17 September 2018”, Earth Negotiation Bulletin, vol. 25, n
179, 20 September 2018, available at http://enb.iisd.org/oceans/bbnj/igc1/. 49 United Nations General Assembly (UNGA), 24 December 2017, Resolution 72/249 on International legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. 50 IISD Reporting Services, “Summary of the fourth session of the preparatory committee on marine biodiversity beyond areas of national jurisdiction: 10-21 July 2017”, Earth Negotiation Bulletin, vol. 25, n
141, pp. 9–10. IISD Reporting service, “Summary of the First Session of the Intergovernmental Conference on an International Legally Binding Instrument under the UN Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction: 4-17 September 2018”, Earth Negotiation Bulletin, vol. 25, n
179, pp. 3–6.

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post notification as regards the collection of marine genetic resources in situ. The flexibility and pragmatism of the European position are also characterised by the suggestion not to mention the relationship with intellectual property rights in the ILBI, in order not to hamper too much the activities of scientists and industries, which is an important argument for the scientific research.51 The EU also appears to be against any form of monitoring on the utilization of marine genetic resources, while the question of intellectual property rights is still very problematic.52 Other questions remain to be raised: would a benefit-sharing regime be applicable to all marine genetic resources, or only to resources of the Area? Would the International Seabed Authority play a role in their exploitation? The question of the articulation with the intellectual property rights and notably the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) or with the work of the World Intellectual Property Rights Organisation (WIPO) is also at the centre of the debate and the Union has not really taken yet a position on these elements. For instance, it is not necessary under the existing regimes to indicate the origin of the resource used to obtain a patent. Moreover, patenting a microorganism is possible under the TRIPS agreement.53 Those difficult and crucial issues are still open to discussion, and the EU’s balanced position will probably be a decisive point for the success of the negotiating process.

3.1.2

Area-Based Management Tools

Second, as far as area-based management tools—including marine protected areas— are concerned, States will have to decide whether or not it is appropriate to create a centralized system for the designation of protected areas, in areas beyond national jurisdiction. Indeed, so far, only a few global sectorial organizations (such as the

51 See Arnaud-Haond (2018). For the author, it is indeed necessary to preserve the freedom and flexibility of marine scientific research, while trying to reach at the same time a more equitable regime, in order to foster the research and discoveries dealing with the conservation of marine biodiversity and environment. 52 During the meeting of September 2018, the question of the elaboration of a sui generis system, including a mandatory disclosure of origin, was discussed. The other option in this regard would be to leave the matter to another body such as the WTO or WIPO. See IISD Reporting service, “Summary of the First Session of the Intergovernmental Conference on an International Legally Binding Instrument under the UN Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction: 4-17 September 2018”, Earth Negotiation Bulletin, vol. 25, n
179, p. 6. See notably Chiarolla (2014), pp. 171–194. 53 Agreement on Trade-Related Aspects of Intellectual Property Rights (15 April 1994), Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 UNTS 299, 33 Article 27 (3)(b): “Members may also exclude from patentability: (b) plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.” See also Voigt-Hanssen (2018), pp. 683–705.

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International Maritime Organization or the International Seabed Authority), and regional fisheries organizations or regional environmental frameworks have the power to design sectorial and/or regional “protected areas”.54 However, those areas are only binding for member States of a specific organization, and the designation does not usually cover all the maritime areas or all activities at sea, thus limiting the efficiency of these tools. This also explains the slow and limited development of area-based management tools in areas beyond national jurisdiction so far. The future regime, then, could be based on a global and centralized approach, permitting the construction of a coherent network of marine protected areas (MPAs), applicable to all members of the future agreement. It could also be designed according to a regional approach, only encouraging the development of the regional framework, or a “hybrid approach” could also be adopted, comprising both global and regional perspectives. The European Union is advocating for the creation of a hybrid regime for the creation of marine protected areas that is not totally centralized, in order not to undermine the mandate of the regional organizations but without overemphasizing the regional perspective. The hybrid approach calls for “including in the MPA network those MPAs established under existing bodies; and further elaborating on compatibility”, taking into account the relationship with future measures to promote coherence and cooperation while underscoring the need for reporting on implementation.55 The main obstacle to the implementation of this hybrid approach is the issue of enforceability of measures proposed by a global secretariat (through the preparation of a draft management plan for instance or general guidelines) but formally adopted at the regional level only. Moreover, coastal States are strongly concerned by the future regime, not only because the areas beyond national jurisdiction are adjacent to their maritime zones, but also because there is an overlap between their extended continental shelf and the high seas. The interests of the coastal States—including, some EU States—towards the reaffirmation of their sovereignty over their extended continental shelf, are significant issues for discussion, especially concerning the question of the establishment of an international regime for the creation of marine protected areas. For instance, one of the questions raised within the Preparatory Committee is whether the consent of the coastal State should be required for the creation of a protected area in the water column situated over its continental shelf. Such consent would, on the one hand, protect the sovereign rights of the coastal State for the exploitation of the

54

Rochette et al. (2015). IISD Reporting Services, “Summary of the fourth session of the preparatory committee on marine biodiversity beyond areas of national jurisdiction: 10-21 July 2017”, pp. 11–12 and IISD Reporting service, “Summary of the First Session of the Intergovernmental Conference on an International Legally Binding Instrument under the UN Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction: 4-17 September 2018”, pp. 6–9. The EU, moreover, “suggested that: proposals include socio-economic mitigation measures; and management plans, as part of final decisions, include measures identified by competent international organizations and a communication strategy towards affected stakeholders”, showing one’s again its pragmatic approach. Oude Elferink (2018), pp. 437–466. 55

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mineral resources of its continental shelf, but on the other hand, accentuate its creeping jurisdiction on areas beyond national jurisdiction and potentially limit the adoption conservation measures in those areas. For the EU, at least, the legally binding instrument must state that the marine protected area should be created “with due regard to the rights and legitimate interests of any coastal State”, as Article 142 of the UNCLOS provide regarding the conduct of activities in the Area.

3.1.3

Environmental Impact Assessment

Third, although there is, in international law, a customary obligation to conduct environmental impact assessment56 reiterated in Article 206 of the UNCLOS, those provisions have been interpreted as not being precise enough, necessitating the establishment of a concrete framework for the conduct of such assessments. Therefore, the future regime should encompass elements related to the conduct of environmental impact assessments by States for all activities that could possibly have a detrimental effect on marine biological diversity in areas beyond national jurisdiction. Nonetheless, uncertainty remains as regards the content of the future agreement: what should be the threshold of nuisance acceptable for activities at sea? Is a centralized institution gathering the environmental impact assessments and harmonizing all the criteria necessary? In addition, to what extent should public participation be requested? The EU, in this field, appears to be in favour of the determination of the threshold and criteria to decide on the conduct, by Parties to the agreement and not by a new body, of environmental impact assessment. The Union could agree to the reference to development of “strategic impact assessment” and of “transboundary impacts”, and “noted that the ILBI should provide for a public statement on the reasoning behind a decision.”57 Nonetheless, the Union argued against any obligatory monitoring and review as regards EIA and “emphasized that States should decide monitoring and review modalities.”58

3.1.4

Transfer of Marine Technology and Capacity Building

Finally, as regards transfer of marine technology and capacity building, in accordance with the equitable basis stipulated by the UNCLOS (in its Part XIV, and more especially Article 266), the future instrument would have to stress the obligations of developed States in this matter. The priority, according to the EU, would be to assist

56 As it has been recalled by the EU during the last PrepCom. Id. at pp. 12–13. See the Pulp Mills case, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14, para 204. 57 IISD Reporting Services, “Summary of the fourth session of the preparatory committee on marine biodiversity beyond areas of national jurisdiction: 10-21 July 2017”, Id. at p. 13. 58 Ibid.

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States in fulfilling their ILBI obligations, developing their capacities by using, for instance, existing funding sources. As regards the institutional aspects of the future instrument, the EU could support the creation of a conference of the parties, but would prefer to use existing bodies and mechanisms, keeping a cautious approach. However, the Union would foster the creation of a clearing house mechanism, in order to promote transparency, exchange information and facilitate access to scientific data, especially in the field of marine genetic resources.59 To conclude, so far, the EU’s position on the foregoing issues has been underdeveloped, due to the difficulty to reaching an agreement in advance among the Union’s member States. However, the EU has emphasized its desire of an “early entry into force” and “universality”,60 showing at least its strong support to the adoption of the new instrument. Other issues that may be of interest are the concrete consequences of Brexit on the discussions, as the UK remains part of the EU for those negotiations and has an influence in the definition of the EU’s position. Indeed, the UK has often expressed strong antagonist positions concerning the content of the future instrument, leading to difficulties in reaching a common position. As a consequence, the Union does not have yet a strong role in the global discussions.61

3.2

Potential Consequences of the Future Instrument as Regards European Union’s Maritime Policy

Finally, the future international legally binding instrument appears in total coherence with the EU’s maritime policy and would then strengthen and complement it. The EU and its member States, according to their competences, have indeed been implementing, for about ten years, an “integrated maritime policy”62 which “seeks to provide a more coherent approach to maritime issues, with increased coordination between different policy areas”63 and then to coordinate policies on specific sectors. This integrated maritime policy, based on an “ecosystem approach”, aims at

59

Id. at pp. 15–16. Id. at p. 18. Resolution 42/279 recalls indeed that “the conference shall exhaust every effort in good faith to reach agreement on substantive matters by consensus”, stating the “need to ensure the widest possible and effective participation in the conference”. UNGA Res 72/249 (2017), §17. Some States, like Russia, are indeed not convinced yet of the necessity of such a legally binding instrument. 61 For a general study of the consequences of Brexit on the law of the sea, see Beslier (2016), pp. 15–24. 62 See the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 10 October 2007 on an Integrated Maritime Policy for the European Union [COM(2007) 575 final—Not published in the Official Journal]. 63 Definition available on the website of the Commission, maritime affairs: https://ec.europa.eu/ maritimeaffairs/policy_en. 60

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reconciling the economic and environmental aspects of sustainable development, which often contradict, exactly in the same spirit as the future ILBI, as the latter is dealing with “conservation and sustainable use of marine biodiversity beyond areas of national jurisdiction”. The EU maritime policy is notably based on several concepts aimed at combining the environmental and economic aspects of activities linked to the sea, as the concepts of “blue growth”, “blue economy”, “sustainable development”, “ecosystem management”, or “sustainable exploitation.”64 For instance, Article 1(1) of Regulation No 1380/2013 defines the scope of the common fisheries policy as “(a) the conservation of marine biological resources and the management of fisheries and fleets exploiting such resources [. . .]”,65 with a conservationist and economic perspective. The environmental policy and biodiversity strategy of the EU are also relevant, especially the protection of species and habitats through the establishment of protected areas: the Natura 2000 network,66 extending to sea but only in the European maritime area (which means including in the EEZ of member States but not beyond). The future international agreement appears complementary and in continuity with this policy of creating protected areas, as it reinforces it, through the affirmation of principles such as the ecosystem approach or the prevention

64 See, for instance, the Communication from the Commission to the Council and the European Parliament, of 2 October 2002, Toward a strategy to protect and conserve the marine environment [COM(2002) 539 final] and the Communication from the Commission to the Council and the European Parliament of 24 October 2005 Thematic Strategy on the Protection and Conservation of the Marine Environment {SEC(2005)1290}, COM/2005/0504 final, and, more directly, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 13 September 2012, Blue Growth opportunities for marine and maritime sustainable growth COM/2012/494 final according to which ‘The blue economy needs to be sustainable and to respect potential environmental concerns given the fragile nature of the marine environment’, p. 5, and the 2014/89/EU Directive of the European Parliament and of the Council establishing a framework for maritime spatial planning, Art. 5(1): “When establishing and implementing maritime spatial planning, Member States shall consider economic, social and environmental aspects to support sustainable development and growth in the maritime sector, applying an ecosystem-based approach, and to promote the coexistence of relevant activities and uses.” 65 Moreover, the Art. 2 states that “1. The CFP shall ensure that fishing and aquaculture activities are environmentally sustainable in the long-term . . . 2. The CFP shall apply the precautionary approach to fisheries management, and shall aim to ensure that exploitation of living marine biological resources restores and maintains populations of harvested species above levels which can produce the maximum sustainable yield. . . . 3. The CFP shall implement the ecosystem-based approach to fisheries management so as to ensure that negative impacts of fishing activities on the marine ecosystem are minimised, and shall endeavour to ensure that aquaculture and fisheries activities avoid the degradation of the marine environment. . . . 5. The CFP shall, in particular: . . . (j) be coherent with the Union environmental legislation . . .”. 66 See Directive 79/409 of the Council of 8 December 1975, OJEC n
L 31 of 5th February 1979, replaced by Directive 2009/147 of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds, OJEU of 26 January 2010, p. 7, and Directive 92/43 of the Council of 21 May 1992 on the conservation of natural habitats and the wild flora and fauna, OJEC n
L206 of 22 July 1992, p. 7.

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principle, and extends it geographically to areas beyond national jurisdiction. This probably explains why the EU remained very attached to the issue of marine protected areas in the package deal. Similarly, the Marine Strategy Framework Directive (MSFD), 2008/56/EC requires EU member States to take all necessary measures in order to reduce the impacts of human activities on the marine environment and to reach or maintain a “good environmental status” by 2020.67 Although the EU has not yet put forward marine spatial planning in the BBNJ negotiations, the “marine spatial planning” policy of the EU, enshrined in the 2014/ 89/EU Directive of the European Parliament and of the Council establishing a framework for maritime spatial planning, is of great importance, as it constitutes a useful means to reconcile and organize activities at sea, having potentially diverse impacts on biodiversity or the environment. Marine spatial planning is defined by Article 3 of the Directive as “a process by which the relevant Member State’s authorities analyse and organise human activities in marine areas to achieve ecological, economic and social objectives.” This policy has been referred to by several states during the discussions on BBNJ (as for instance Fiji, Seychelles and Thailand),68 but it has not yet been fully integrated into the negotiations. Nevertheless, the spirit and principles guiding the marine spatial planning policy are also coherent with the future agreement, and the EU marine spatial planning Directive could be a model in this field in case this question is considered further. Indeed, the sea is a considerable source of growth for the EU and incorporates a high number of activities and users including: shipping, port activities, oil and gas, energy, aquaculture, trade, fisheries and many others. In addition to the reconciliation of environmental and economic objectives, there are other elements that must be taken into consideration in developing the instrument such as freedom of navigation, trade and security of navigation. However, one can question the efficacy of a policy of marine spatial planning on the conservation and preservation of the marine environment. Indeed, the objective of systematically reconciling economic and environmental aims does not give the latter priority over the former, and may result in irreconcilable tensions69 between economic dependence and strategic importance of the sea for the EU on issues such as trade, shipping, oil and gas, energy, biotechnology and military activities that are not included in the scope of application of the marine spatial planning Directive.

67 Marine Strategy Framework Directive (MSFD), 2008/56/EC, §6. See on this policy Long (2017), pp. 662 and 665. 68 IISD Reporting service, “Summary of the First Session of the Intergovernmental Conference on an International Legally Binding Instrument under the UN Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction: 4-17 September 2018”, Earth Negotiation Bulletin, vol. 25, n
179, pp. 6–8 and p. 16. 69 See Seddik (2017), p. 8 and 15. See also, the study of the Centre d’études stratégiques de la marine (2014) Union européenne: le défi maritime, Études marines n
7 available at: https://cesm. marine.defense.gouv.fr/index.php/publications/etudes-marines/94-etudes-marines-n-7-unioneuropeenne-le-defi-maritime.

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Depending, of course, on the precise and final content of the future instrument, it seems that the new obligations are in conformity and coherence with the existing EU law, with a specific view to the objective of sustainable development consecrated in Article 3(5) of the TUE. The principles and concepts stressed in the future ILBI, which is mainly focused on the utilitarian sustainable development objective, are already part of the EU legal framework, and the international obligations will simply be reaffirmed, detailed, and their implementation reinforced, in order to reach efficiency.

4 Conclusion and Way Forward All in all, it is noteworthy that the participation of the EU in current discussions on international law of the sea raises very controversial and technical issues. The repartition and articulation of institutional but also substantive competences, which are deeply interlinked, remain ambiguous and lead to internal controversies detrimental to the effective application of the law of the sea and marine biodiversity conservation, as demonstrated by the CCAMLR’s MPA case. However, one can also underline the important contribution of the EU as regards the substantive law of the sea: establishment of marine protected areas networks, implementation of a concrete marine spatial planning policy, and the search for a sustainable use of marine resources in general, with the concept of “blue growth”. The EU is a singular actor for the law of the sea, and, save for some internal difficulties, its contribution to the development of the law of the sea is important and instructive in the context of the future ILBI.

References Arnaud-Haond S (2018) La différence essentielle entre échantillon biologique et ressource génétique: apprendre des écueils terrestres pour une meilleure gouvernance pour les ressources génétiques marines. In: INDEMER, La connaissance des océans au service du développement durable – Les grands domaines de la recherche scientifique marine, aspects scientifiques et juridiques. Actes de la Conférence internationale de Monaco de 27 et 28 avril 2017. Pedone, Paris, pp 51–60 Beslier S (2016) Brexit et droit de la mer. INDEMER. Annuaire du droit de la mer XXI:15–24 Chiarolla C (2014) Intellectual property rights and benefit sharing from marine genetic resources in areas beyond national jurisdiction: current discussions and regulatory options. Queen Mary J Intellect Prop 4(3):171–194 Churchill R (2017) The 1982 United Nations Convention on the law of the sea. In: Rothwell DR, Oude Elferink AG, Scott KN, Stephens T (eds) The Oxford Handbook on the law of the sea. Oxford University Press, pp 24–45 Churchill R (2018) The European Union as an actor in the law of the sea, with particular reference to the arctic. Int J Mar Coast Law 33(2):290–323

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De Baere G (2012) Mercury rising: the European Union and the international negotiations for a globally binding instrument on mercury. Eur Law Rev 37(5):640–655 Dross N (2014) L’Union européenne dans les organisations régionales de pêche In: INDEMER Droit international de la mer et droit de l’Union européenne. Cohabitation, Confrontation, Coopération? Colloque international, Musée Océanographique de Monaco, 17–18 octobre 2013. Pedone, Paris, pp 97–103 Flaesch-Mougin C (2013) Représentation externe et compétences de l’Union européenne: quelques réflexions à propos des arrangements généraux du Conseil relatifs aux déclarations de l’Union dans les organisations multilatérales. In: Boutayeb C (dir) La Constitution, l’Europe et le droit, Mélanges en l’honneur de Jean-Claude Masclet. Publications de la Sorbonne, pp 571–591 Heliskoski J (2013) EU declarations of competence and international responsibility In: Evans M, Koutrakos P (eds) The international responsibility of the European union, European and international perspectives. Hart, Oxford, pp 189–212 Jarmache E (2014) Fondements juridiques de l’action de l’Union européenne et application spatiale. ‘L’espace maritime communautaire’. In: INDEMER Droit international de la mer et droit de l’Union européenne. Cohabitation, Confrontation, Coopération? Colloque international, Musée Océanographique de Monaco, 17–18 octobre 2013. Pedone, Paris, pp 17–24 Long R (2017) North-East Atlantic and the North Sea. In: Rothwell DR, Oude Elferink AG, Scott KN, Stephens T (eds) The Oxford handbook on the law of the sea. Oxford University Press, pp 647–671 Michel V (2003) Recherches sur les compétences de la communauté. L’Harmattan, Paris Michel V (2006) Les compétences externes implicites: continuité jurisprudentielle et clarification méthodologique. Europe, pp 4–8 Morin M (2015) L’affaire n
21 du Tribunal International du Droit de la Mer et l’Union européenne. Neptunus, e.revue, CDMO, 21(4):8 p Oanta GA (2017) Some recent questions regarding the European Union’s Public access fisheries agreements In: Andreone G (ed) The future of the law of the sea. Bridging gaps between national, individual and common interests. Springer, Berlin, pp 45–64 Oude Elferink AG (2018) Coastal States and MPAs in ABNJ: ensuring consistency with the LOSC. Int J Mar Coast Law 33:437–466 Payne C (2017) Biodiversity in high seas areas: an integrated legal approach. ASIL Insights 21(9) Ribeiro MC (2017) The protection of biodiversity in the framework of the common fisheries policy: what room for the shared competence?” In: Andreone G (ed) The future of the law of the sea. Bridging gaps between national, individual and common interests. Springer, Berlin, pp 65–86 Rochette J et al (2015) A new chapter for the high seas? Historic decision to negotiate an international legally binding instrument on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. IDDRI Study 02/15 Seddik W (2017) La stratégie maritime de l’Union européenne en Méditerranée. To be published In: La gouvernance internationale de la Méditerranée, questions et évolutions contemporaines, Actes du colloque organisé par le CERIC et Sciences-Po Aix le 9 novembre 2017 Voigt-Hanssen G (2018) Current ‘light’ and ‘heavy’ options for benefit-sharing in the context of the United Nations Convention on the law of the sea. Int J Mar Coast Law 33(4):683–705

Pascale Ricard CNRS (French National Centre for Scientific Research) permanent researcher at the Aix-Marseille University (CERIC), in general public international law and more specially law of the sea and environmental law. Post-doctoral fellow in 2019 at the University of Angers on the ZOMAD project, which is dedicated to the regime applicable to activities in maritime disputed areas. PhD in 2017 in Paris 1 Panthéon Sorbonne, with a research about Marine Biodiversity Conservation Beyond National Jurisdiction (published by Pedone).

Chapter 21

The EU and the UN Legally-Binding Instrument on the Areas Beyond National Jurisdiction Luigimaria Riccardi

Abstract The chapter offers an in-depth reading of the role that the European Union (EU) may play during the current negotiations in the United Nations for the adoption of a new international legally binding agreement on biodiversity beyond national jurisdiction. Despite the complexity of the object and the interests of the negotiations in question, the study stresses the added value of the EU to speak with a single voice on behalf of its Member States, thank on the new status that the EU has in the United Nations General Assembly since 2011. In fact, such a status may assist a major sharing of position of the EU among other States, by covering also the legal gaps of the United Nations Convention of the Law of the Sea (UNCLOS), concerning the protection of the marine biological diversity and, mainly, the definition and framework of Marine Genetic Resources. Besides, the chapter stresses the idea that the EU may interconnect the new international agreement with other international instruments and International Organizations, in which the EU is an active player, guarantying in this way a concrete coordination and implementation of UNCLOS. Finally, the study will move to consider a pragmatic position expressed by the EU during the negotiations, together with its Member States, trying to understand whether and to what extent it can represent a possible third way to walk on.

1 Introduction The marine areas beyond national jurisdiction (ABNJ) cover nearly half of the world’s surface. The scientific development tells us with still greater force that these large oceans are more affected by the human influence than one could previously understand. Pollution, overfishing, expanded shipping, marine mining, energy development, intensified aquaculture, ocean warming and acidification all pose serious threats to marine ecosystems—including in the ABNJ—and require more effective marine management.

L. Riccardi (*) University of Pisa, Department of Law, Pisa, Italy © Springer Nature Switzerland AG 2020 M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea, https://doi.org/10.1007/978-3-030-42671-2_21

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In the light of these extent issues, the United Nations Convention of the Law of the Sea (UNCLOS)1 emphasizes the importance of international cooperation in various fields of the law of the sea. For this study, Art. 278 of UNCLOS has a peculiar position. It refers specifically to the cooperation between International Organizations (IOs). In the light of this provision, it seems that the role played by the European Union (EU) with(in) other IOs and the international instruments directly and indirectly related to the law of the sea may assume a peculiar importance. For instance, it is possible to refer to the participation of the EU in the United Nations (UN); the International Maritime Organization (IMO); the Food and Agricultural Organization (FAO), the World Trade Organization (WTO) and many Regional Fisheries Management Organizations (RFMOs). The role of the EU takes on different levels. While the EU is a full-member (although with its peculiarities) in the FAO,2 WTO3 and 17 tuna and non-tuna RFMOs,4 such as the International Commission for the Conservation of Atlantic Tunas (ICCAT),5 the EU keeps a special observer status in the UN General Assembly (UNGA).6 In other cases, the EU does not have a formal status, such as in IMO, in which only the European Commission (not the EU) has had an observer status since 1974.7 Since the EU is not a sovereign State,8 its degree of participation in the IOs follows a complex mechanism and is determined at both the international and European level. More precisely, at the international level, the EU’s involvement depends on whether the IOs allow for the participation of such entity, and if they do, to what degree such participation is permitted. At the internal level, the EU’s capacity to participate in international institutions depends mainly on how legal competences are divided between the EU and its Member States, which are either

1

United Nations, Treaty Series, Vol. 1833, No. 31363. FAO Conférence, 26ème session, 26 November 1991 C 91/PV/19 at http://www.fao.org/3/aak684e.pdf, and Rapport de la Conférence, 26ème session, C 91/REP, pp. 128–129 at http:// www.fao.org/fileadmin/user_upload/bodies/Conference_Reports/Conf_Rep_French/C91_fr.pdf. 3 Art. XI, par. 1 of the Agreement Establishing the World Trade Organization, adopted in Marrakesh on 15 April 1994 and entered into force on 1 January 1995, 1867 UNTS 154. 4 For an overview of the relationship between the EU and the RFMOs, see https://ec.europa.eu/ fisheries/cfp/international/rfmo_en. 5 About the ICCAT, see Council Decision, 9 June 1986, On the accession of the Community to International Convention for the Conservation of Atlantic Tunas, Official Journal (OJ) L 162, 18 June 1986. 6 UNGA Resolution, 3208 (XXIX), Status of European Economic Community in the General Assembly, 11 October 1974 and UNGA Resolution, A/RES/65/276, Participation of the European Union in the work of the United Nations, 3 May 2011. 7 Following an exchange of letters between the then President of the European Commission, Xavier Ortoli, and Mr. Srivastava, at that time Secretary General of the International Maritime Consultative Organization (IMCO, today IMO), on 28 June 1974, a cooperation agreement between the two bodies that granted an observer status to the European Commission was concluded. See https://eurlex.europa.eu/legal-content/IT/TXT/HTML/?uri¼CELEX:52002SC0381(02)&from¼EN, Allegato III. 8 Cf., Bengoetxea (2011), p. 449; von Bogdandy (2012), p. 761. 2

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exclusive or shared, according to Art. 5 of the Treaty of European Union (TEU).9 The diversity of Member States’ interests and the division of competences seem to make it difficult for the EU to always formulate a precise and unique position. However, the EU and its Member States recently showed the real capacity to speak with one voice in the framework of the UNGA. In order to understand this capacity, we first have to consider the resolution A/RES/69/29210 with which the UNGA decided to launch a process of negotiations leading to the adoption, under the UNCLOS, of an international legally binding instrument (ILBI) on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ). The ILBI would address the following key topics “together and as a whole”: (a) the marine genetic resources (MGRs), including questions on the sharing of benefits; (b) measures such as area-based management tools, including marine protected areas; (c) environmental impact assessments; (d) capacity-building and the transfer of marine technology. In the specific case under scrutiny, the UNGA discussions for such a new ILBI have raised several questions. In the first place, it principally refers to whether existing international agreements on the Law of the Sea, such as the UNCLOS itself, are sufficient to meet global commitments in order to protect marine biodiversity beyond national jurisdiction. In fact, the UNCLOS only seems to provide very broad duties of States to protect the marine environment and its living resources in ABNJ. In the second place, it also refers to whether additional, different and more specific mechanisms may be required in favour of the protection and preservation of the ABNJ. In the light of these issues, the new enhanced status that the EU has had in the UNGA since the 2011 may play a key role in the future negotiations on the ILBI. Accordingly, the goal of this study is to provide an overview of the current negotiations within the UNGA for the adoption of a new ILBI through the new role that the EU may play in the UNGA, investigating the added value of the possibility for the EU to speak with a single voice on behalf of its 28 Member States. Particularly, after recalling the participation of the EU in UNCLOS and the mechanisms allowing the coordination between the EU and its Member States, in the first place, the chapter will try to identify the main legal gaps in the UNCLOS framework, concerning the protection of the marine biological diversity and, mainly, the MGRs. In the second place, the two main positions taken by the States during negotiations will be examined, outlining the main legal arguments concerned. In the third place, the chapter will analyse the enhanced position that EU has had in the UNGA since 2011. Finally, the study will move on to consider the pragmatic position expressed by the EU, together with its Member States, trying to understand whether and to what extent it can represent a possible third way to walk on and a new path towards a concrete development of the Law of the Sea. 9

Cf., Wessel (2011), p. 621. On the relationship between the EU and UNCLOS, see infra para. 2. See UNGA Resolution, A/RES/69/292, Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, 6 July 2015. 10

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2 The EU and the UNCLOS and the Enhanced Status of the EU in the UNGA It is useful to recall that in the Third United Nations Conference on the Law of Sea (1973–1982) the European Economic Community (EEC) was not a party of the negotiation of the Convention, but it was given an observer status in 1974.11 Although the EEC did not represent the only IO to have assumed an observer status during the Third Conference, it became immediately apparent from the outset that its status showed a certain peculiarity. In fact, this is mainly due to the allocation of exclusive and shared competences, based on which its Member States could no longer act in a completely independent way. In the specific case under scrutiny, in order to guarantee the EU’s participation in UNCLOS, the inclusion of the “EEC clause” was an essential achievement,12 binding the Member States to the Convention in accordance with the principle of the conferral of powers. This clause is now contained in Art. 305, par. 1, let. f), of UNCLOS and Annex IX to the Convention, which states that: “the Convention shall be open for signature by [. . .] international organizations.”13 Its conditions, set out in Annex IX, are sufficiently detailed and tailor-made for the EU. The application practice has shown that these types of clauses are today identified as “Regional Economic Integration Organization” (REIO) or “Regional Integration Organization” (RIO) clauses.14 The key element is based on the conferral of powers from the States parties to the IO. Art. 306 of UNCLOS and Art. 3 of the Annex IX provide that the IO can deposit its instrument of ratification if most of its States parties have deposited their acceptance instruments.15 It is envisaged that the instrument deposited by the organization contains certain statements regarding the extent of its participation, its rights and obligations and its powers in compliance with Art. 5 of the Annex IX. In fact, the latter provides that the acceptance instrument of the organization contains a declaration, specifying the matters governed by the Convention for which the competence has been transferred to the organization by its member States which are parties to the Convention. In the specific case, the EU’s declaration of competence16 contains a description of the competences involved, the exclusive ones of the EU (e.g. conservation and

11 For a full discussion on the EEC’s participation to the Third Conference, cf., inter alia, Treves (1976), p. 455; Gaja (1980–1981), p. 278; Simmonds (1989), p. 9; Treves (2002), p. 279. 12 Cf., Paasivirta (2015), p. 1045. 13 According to Art. 1, Annex IX of UNCLOS, the IOs are defined as “intergovernmental organization[s] . . . to which its member States have transferred competence over matters governed by this Convention”. 14 On the REIO/RIO clauses, see Emerson et al. (2011), p. 31. 15 On the declaration of competence of Member States, see http://www.un.org/depts/los/conven tion_agreements/convention_declarations.htm. 16 On the EU’s declaration of competence, see http://ec.europa.eu/world/agreements/ viewCollection.do?fileID¼76198, p. 15. See also Lijnzaad (2014), p. 186.

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management of resources and fishing habits) and the shared ones between the Union and its Member States (e.g. maritime transport, sea safety and prevention of maritime pollution). The EU declaration of competence states that the competences are subject to “continuous development” and, therefore, the declaration may be completed or amended. However, no such formal amendments have been made or requested so far. Therefore, the implementation of UNCLOS is carried out both by the EU and/or its Member States within their respective competences. On the one hand, they undertake to inform the others which among them is competent in a relevant subject matter. In fact, if this does not work, they run the risk of becoming jointly responsible vis-à-vis third parties for any breaches of the Convention obligations.17 On the other hand, it is of paramount importance that the EU and its Member States act in a uniform manner, maintaining the unity of the EU. However, the joint action needs a regular coordination process which is mainly carried out in the EU’s headquarter (Brussels) by the competent EU Institutions (the European Commission, the President of the European Council and the Presidency of the Council of the European Union) and Institutional bodies (Delegations of the EU). In the specific framework of the UNCLOS, the representative institution is the European Commission, according Art. 218 TFUE. However, after the entry into force of the Lisbon treaty, the external representation of EU is also carried out by the Delegations of the EU, which operate under the High Representative for Foreign Affairs and Security Policy (HR), according Art. 221, par. 2, TFUE,18 which effectively participate in the related international fora, such as the Meeting of the States Parties. The coordination process is guided by the EU law principle of sincere cooperation, according Art. 4, par. 3 of TEU. Furthermore, many contentious issues concerning the interpretation and implementation of the UNCLOS have been examined at a technical level within the European Institutions by the Common Foreign and Security Policy Working Party on the Law of the Sea (COMAR). The remit of COMAR is extensive and was originally set out in the Council Decision of 1998 on the EC’s approval of the UNCLOS and the Agreement on Part XI. The remit includes, for example, the provision on the compatibility of the EU policies and regulatory measures with the UNCLOS and with the international law in general; the preparation of Council decisions and declarations relating to the UNCLOS; the coordination of the activities of the EU and Member States in the International Seabed Authority and its constituent organs and consultations with the Member States and the drafting of common positions on the development of the Law of the Sea and its repercussions on EU

17 International Tribunal for the Law of the Sea (ITLOS), Advisory Opinion submitted by the Sub-Regional Fisheries Commission, 2 April 2015. Available via https://www.itlos.org/cases/listof-cases/case-no-21/?%27%C2%B4%270x27%3B¼& cHash¼1783fc2076452fc251e46c4da8e441ce. 18 On the external representation of the EU after the Lisbon Treaty, see Marquardt (2017), p. 3.

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foreign policy.19 In particular, it prepares the EU’s positions at the internal bodies of IOs, such as the UNGA, or also at an informal international level, such as the Openended Informal Consultative Process on Oceans and the Law of the Sea (OICP). In all these contexts, the duty of cooperation between the EU and Member States has a peculiar importance. In the specific case, the Court of Justice of the EU (ECJ) has indeed established specific procedural obligations that stem from the duty in question.20 In fact, on the one hand, the ECJ has highlighted that the coordination has to be granted both in the negotiation and the final phase of such agreements, stating that: “when we are faced with an agreement regarding a shared competence, it is important to ensure cooperation and coordination both during the negotiation and in the conclusion phase.”21 On the other hand, considering that the UNCLOS is one of the main examples of international mixed agreements of the EU, in the MOX Plant case, the Court prescribed a duty of the Member States “to inform and consult” the European Community (now EU) before launching dispute settlement procedures against another MS.22 Therefore, the duty of cooperation implies that Member States should refrain from actions that “. . .call in question the EU’s capacity for independent action in its external relations. . .”.23 Therefore, although the EU Member States are parties to the UNCLOS as sovereign States, they are “. . .not as a mere appendage of the European Union. . .”.24 The duty of cooperation may be read as an obligation to promote best national efforts to try to harmonize its own positions. In order to understand the potential future role of the EU in the negotiations in the UNGA and its subsidiary bodies to the adoption of a new ILBI, it is important to outline the traits of the new status that the EU has technically had since 2011 in the UNGA and the new legal range of action. The role of the EU has been enhanced through the adoption of UNGA’s resolution 65/276,25 improving its own rights of participation. The resolution in question grants a series of prerogatives that allow the EU, despite its observer status, to participate more strongly in the work of the UNGA and its subsidiary bodies. In fact, the resolution highlights the right of the EU to be able to participate in the general debate, availing itself of the right to reply on the positions taken in the discussions, making, inter alia, its documents circulate among the individual delegates present therein and exercising, under certain 19

See Council Decision 89/392, cit., Art. 2, Annex III. Cf., Long (2014), p. 167. On the duty of coordination, cf., inter alia, Cremona (2008), p. 125; Neframi (2010), p. 323. 21 Opinion n. 1/78 on Draft Convention of the International Atomic Energy Agency on the Physical Protection of Nuclear Materials, Structures and Transport [1979] ECR I-2871, paras. 34–36. 22 Case C-459/03 Commission v. Ireland (MOX Plant) [2006] ECR I-4635, para. 179. 23 Case C-28/12 Opinion of Attorney General (AG) P. Mengozzi European Commission v. Council of the European Union [2015] ECLI:EU:C:2015:43, para. 63. Cf., Hillion (2010), p. 87. 24 Case C-2-15 Opinion of AG E. Sharpston Conclusion of the Free Trade Agreement between the European Union and the Republic of Singapore [2016] ECLI:EU:C:2016:992, para. 77. 25 UNGA Resolution, A/RES/65/276, Participation of the European Union in the work of the United Nations, 3 May 2011. 20

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conditions, the right of oral presentation of proposals and amendments. However, the resolution excludes the exercise of all those prerogatives linked to full-member status. In fact, the EU does not have either the right to vote or the possibility of co-exercising the initiative for the adoption of deeds and of proposing candidacies, of raising motions of order or procedure. In particular: (a) About the participation in the general debate, it is important to highlight that the resolution, by indicating the conditions for a possible intervention, does not refer to the necessary existence of a specific interest of the intervener regarding the topic discussed at the meeting. Therefore, the EU would have access even if it does not demonstrate a specific interest in the subject matter of the UNGA; (b) The EU can intervene among the main political groups, such as the Group of 77, before the members of the UNGA and the other observers, and this is because the political groups operating at the UN, including the EU, can speak first in the context of the work assemblies; (c) The EU has the possibility of submitting proposals or amendments.26

This last provision represents the most relevant power among the new prerogatives granted to the EU. In this regard, the EU may introduce and represent proposals or amendments subject to certain conditions, namely: the proposal has to be subjected to the agreement between its Member States and the initiative has to be in a verbal form. However, some criticism remains. In fact, the resolution 65/276 does not guarantee the discussion of such proposals or amendments during the session. In this context, it is important to observe that most UNGA resolutions are prepared in informal consultations, in which the EU may also take an active part.27 This is the specific case of the work of certain sub-bodies under the UNGA, such as the OICP. In here, the EU’s participation covers, inter alia, all parties of the UNCLOS. Furthermore, this may give the EU an effective instrument to attempt to bridge the traditional division between the UN full-member and observer status.28

3 The Legal Gaps in the UNCLOS It is important to observe that the UNCLOS does not sufficiently address all issues relevant to viably conserve biological diversity and, most of all, the access to and the protection of the MGRs.29

26

For an overview of the new prerogatives of the EU in the UNGA, cf., inter alia, Serrano De Haro (2012), p. 1; Guimãres (2015), p. 91; Brewer (2012), p. 201. 27 Cf., inter alia, Paasivirta and Porter (2006), p. 35. 28 Cf., Paasivirta (2015), p. 1053. 29 For an overview of MGRs, cf., inter alia, Korn (2003), p. 6; Leary et al. (2009), p. 183; De La Fayette (2009), p. 221.

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The existence of life forms in the international seabed was discovered in the late 1970s. Living beings who, thanks to the process of chemosynthesis, can live in extreme conditions of life (very high pressure, total dark and very high or very low temperatures) have developed genetic characteristics that make them unique and particularly interesting for the pharmaceutical, cosmetic, agri-food, waste sinter and military industries. Submarine technological progress has allowed the sampling of these living beings for study purposes and the development of marketable products, starting from the genetic resources contained in these living beings since the 1990. These activities, namely “Bioprospecting”,30 require the availability of huge financial and technological resources: they are usually conducted by public research centres through a financial participation of the private sector. Today, few States possess the necessary resources to undertake such activities. Now, it is important to observe that, in the Law of the Sea, the ABNJ are: the Area,31 the sea bottoms and the soil and the subsoil, and the High Sea. On the one hand (the Area, the sea bottoms and the soil/subsoil), the legal framework is based on the principle of common heritage of mankind, which provides for the inalienability of resources, their exploitation for peaceful purposes and for the benefit of humanity, the internationalization of management and the sharing of benefits deriving from their exploitation. On the other hand (the High Seas), the juridical regime is built on the principle of freedom of the high seas, which provides that every State is free to conduct its own peaceful activities, respecting the freedom of the other States and the rules on the protection of the marine environment. The UNCLOS does not provide for a clear bilateral regulation to access the MGRs and the sharing of benefits. On the one hand, the biodiversity legal system declares that biodiversity conservation is a common interest of humanity, a legal regime that differs from the common heritage of mankind32 due to the absence of internationalization of the resources management, and because it is not limited to the ABNJ. In particular, the UNCLOS shows several legal gaps, mainly because the relevant activities were not planned at the time of the Convention’s adoption. More precisely, Part XII of the Convention (namely the protection and preservation of the marine environment) provides a very general framework that needs to be integrated through more detailed rules, also considering the framework established by the Convention on Biological Diversity (CBD).33 In particular, it is important to observe that on this unqualified obligation to protect and to preserve the marine environment (which 30

On the bioprospecting activities, cf., Kirchner (2010) p. 125. It is important to observe that “the Area” indicates “the seabed and ocean floor and subsoil”, as stated in the Art. 1.1 of UNCLOS. 32 On these aspects, cf., inter alia, Kiss (1982), p. 99. 33 Cf., Diz (2017), p. 123, in which the author also focused on the relationship between the UNCLOS and the CBD. The CBD was signed on 5 June 1992 during the Earth Summit in Rio de Janeiro, under the auspices of the UN, and it was entered into force the 29 December 1993, 1760 UNTS 79. See United Nations, Treaty Series, Vol. 1760, p. 79; and depositary notification C.N. 29. 1996. TREATIES-2 of 18 March 1996. 31

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includes its marine life and/or biodiversity), the ITLOS stated that: “. . . marine living resources and marine life are part of the marine environment and that, as the Tribunal stated in the Southern Bluefin Tuna Cases “the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment. . .”.34 For instance, under Art. 206 of UNCLOS, parties are obliged to assess the effects of activities that may cause pollution; however, this obligation applies “as far as practicable” and there is no indication on how the assessment should be made. A similar situation occurs for the lack of a specific regime in the case of protected marine areas beyond national jurisdiction. In fact, the Convention emphasizes the general objective of preservation and protection of the marine environment, as stated in Part XII of UNCLOS. All States are under the obligation—arising from customary international law and restated in the Art. 192 of UNCLOS—“to protect and preserve the marine environment”. A means to comply with its general obligation is the use of area-based management tools, including marine protected areas (MPAs),35 which is implied in Art. 194, par. 5, of UNCLOS. According to this provision, the measures taken to protect and preserve the marine environment “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.”36 The MGRs represent the most critical gap in the UNCLOS. In fact, UNCLOS never specifically mentions genetic resources. There is no doubt that the UNCLOS is a cornerstone in the field of codification of international law of the sea. Nevertheless, the Convention, as any other legal text, is linked to the time when it was negotiated (1973–1982). At that time, very little was known about the genetic qualities of deep seabed organisms and, when dealing with the special regime of the seabed beyond national jurisdiction and its resources, the UNCLOS only took mineral resources into account. As stated in the Art. 1, par. 3 of the Convention, the term “activities in the Area” is defined as “all the activities of exploration for, and exploitation of, the resources of the Area”. Art. 133, let. a), of UNCLOS defines the term “resources” of the Area as “all solid, liquid or gaseous mineral resource [. . .]”. The UNCLOS narrows the term “resources” that was used in a broader sense in Art. 1 of UNGA Resolution, 2749 (XXV), 17 December 1970.

34

In this regard, see ITLOS, Advisory Opinion submitted by the Sub-Regional Fisheries Commission, cit., para. 216. 35 The MPA can be generally understood as an area of marine waters or seabed that is delimited within precise boundaries, including, if appropriate, buffer zones, and that is granted a special protection regime because of its significance for several reasons, such as ecological, biological, scientific, cultural, educational, recreational, etc. This definition is recalled in note 11 of the Decision VII/5 on Marine and Coastal Biological Diversity, adopted in 2004 by the Conference of the Parties to the CBD. For an analysis of the notion of marine protected areas, cf., Scovazzi (2015), p. 63. 36 For an overview on rare of fragile marine ecosystems and their legal conditions, cf., Scovazzi (2011), p. 13.

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Therefore, even though Art. 136 of UNCLOS stated that: “The Area and its resources are the common heritage of mankind”, it seems that the concept of the common heritage of mankind should not be automatically extended to the MGRs. In fact, the UNCLOS limited the MGRs to the mineral ones, namely the only kind of resources that science was aware of during the negotiation of the Convention of 1982.37

4 The Huge Dilemma Around the Table of the UN on the ABNJ’s Legal Framework: The Common Heritage of Mankind v. the Freedom of the High Seas Recently, during the 72nd session of the UNGA of 2017, the adoption of a second UNGA resolution relating to the marine resources in ABJN has been achieved.38 However, different views and opinions have been expressed in the discussions, mainly, on the matters related to the MGRs, both on their definition and on the applicable legal regime.39 Generally, it is possible to distinguish between two opposite main approaches. Broadly speaking, the division has been remarked between developed countries and developing countries. About the definition of the MGRs, the UNCLOS does not mention them. Conversely, the CBD provides that the expression “genetic resources” refers to “genetic material of actual or potential value”, as stated in its Art. 2. The provision further defines “genetic material” as “any material of plant, animal, microbial or other origin containing functional units of heredity.” In this context, several different perspectives have been emphasized. The Group of 77 has always emphasized that some definitions pertaining to MGRs need to be clarified, also in order to distinguish the MGRs from the subjects of the UNCLOS regimes on fisheries, as reflected in the Fish Stock Agreement of 1995.40 On the contrary, the developed countries have queried the justifications for

37

For an in-depth analysis of the legal gaps of UNCLOS, see Scovazzi (2016), p. 188. See UNGA Resolution, A/RES/72/249, International legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, 24 December 2017. 39 On these questions, cf., inter alia, Glowka (1996), p. 156; Scovazzi (2004), p. 383; Arico and Salpin (2005), p. 50; Armas Pfirter (2006), p. 1; Leary (2006), p. 100; Oude Elferink (2007), p. 143; De La Fayette (2009), p. 221; Ridgeway (2009), p. 309; Barnes (2010), p. 83; Prip (2016). 40 See United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, 24 July–4 August 1995, Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, U.N. DOCA/Conf. 164/37. See also Council Decision 98/392/EC, 23 March 1998, concerning the conclusion, by the European Community, of the convention of the United Nations on the law of the sea of 10 December 1982 and the Agreement of 28 July 1994 concerning the implementation of the Part XI of the Convention, 38

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including genetic resources from some organism, while excluding genetic resources from others.41 With regard to the applicable legal regime, on the one hand, the Group of 77 and China abide by the coordinated position that there is a legal gap concerning the access to and the sharing of benefits deriving from MGRs of the areas beyond national jurisdiction. Specifically, they contend that the common heritage of mankind principle is applicable to these resources. The situation where “some exploit these resources that are common heritage of mankind without the concomitant obligation to share the benefits” has been lamented.42 Therefore, they emphasize the application of Part XI of UNCLOS. According to this camp, the UNCLOS states that the Area and its resources are the common heritage of mankind, as stated in the Art. 136 of UNCLOS. However, as described above, this part seems to be limited to the mineral resources. Nevertheless, a purposive interpretation of the provisions seems to suggest that the intention of including MGRs into the principle in question could be attributed to the UNCLOS negotiators. The application of the principle of common heritage of mankind was already traceable to Ambassador Arvid Pardo of Malta at the UNGA, as he declared the Area and its resources common heritage of mankind,43 thus essentially intending to prevent a race to occupy the Area. In fact, at the time, some delegations saw the Area as res nullius, open to use on a first-come, first-served basis.44 The only precedent is a proposal made by the Argentine jurist José León Suárez. He was entrusted by the League of Nations Experts Committee for the Progressive Codification of International Law with the drafting of a report on the international rules relating to the exploitation of marine living resources. In the report submitted in 1927, Mr. Suárez proposed that the living resources of the sea, and whales in particular, should be considered a heritage of mankind: “Les richesses de la mer, en particulier les richesses immenses de la région antarctique, constituent un patrimoine de l’humanité, et notre Commission, constituée par la Société des

OJ L 179, 23 June 1998, p. 1 Council Decision 98/414/EC, 8 June 1998, concerning the ratification by the European Community of the Agreement of 4 December 1995 for the purpose of application of the provisions of the United Nations Convention on the law of the sea of 10 December 1982 relating to conservation and the management of straddling fish stocks and highly fish stocks migration, OJ L 189, 3 July 1998, p. 14. For the details, see infra par. 2. 41 Cf., Morris-Sharma (2016), p. 71 and spec. p. 76. 42 UNGA, Letter dated 25 July 2014 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, 23 July 2014, UN Doc. A/69/177, at Annex, par. 47. Also see Statement on Behalf of the G77 and China at the AHWG Meeting in January 2015, New York, 20 January 2015. https://www.g77.org/statement/getstatement.php?id= 150120b. 43 Address by A. Pardo to the 22nd Session of the UNGA, 1 November 1967, Official Records of the General Assembly, twenty-second Session, Agenda Item 92, UN Doc. A/6695. 44 In particular, at the time the prevailing opinion was that developing countries would lose any race for the seabed and its militarization, since only rich developed States had the necessary investment and technology to engage in such endeavours. On this issue, cf., Pardo (1975), p. 179.

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Nations, est tout indiquée pour proposer au Gouvernement un moyen d’action avant qu’il ne soit trop tard.”45 Particularly, several arguments have been emphasized in favour of the application of the principle of the common heritage of mankind to the MGRs, such as: (a) in the UNGA resolution 2749 (XXV),46 the Area and its resources were declared the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole; (b) the common heritage of mankind is a fundamental principle of the UNCLOS: it is captured in the preamble and is also granted a special status—some say approximating the status of jus cogens47—by virtue of Art. 311, par. 6, of UNCLOS.48 In any case, the application of the regime of the common heritage of mankind to the MGRS from ABNJ would result into these MGRs being vested in mankind as a whole.49 On the other hand, a group of mainly developed countries hold the view that the applicable regime is that of the freedom of the High Seas, and not the principle of the common heritage of mankind,50 emphasizing the application of Part VII of UNCLOS. In particular, Part VII applies to “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State [. . .], as stated in the Art. 86 of UNCLOS. Art. 87 provides an illustrative list. In the specific case, even though the exploration and exploitation of the MGRs from ABNJ is not stated in Art. 87, the High Seas regime could apply. This consideration is being supported by the fact that Part XI of UNCLOS only refers to mineral resources. They point out that the application of the principle of common heritage of mankind would remove an important incentive to invest in research and development, thereby ultimately depriving mankind of its benefits.51 Besides, in response to the suggestion to the principle that the marine genetic resource from an ABNJ would be exploited on a first-come, first-served basis, it has been said52 that the activities in question would by no means be in an unrestricted fashion. In this context, the High Seas freedoms shall be always exercised with due regard for the interests of other States, as well as for the rights under UNCLOS in respect of activities of the Area, as stated in Art. 87, par. 2, of UNCLOS. The Convention also 45

Société des Nations, Comité d’experts pour la codification progressive du droit international, Rapport au Conseil de la Société des Nations, Genève, 1927, p. 123. 46 UNGA Resolution, 2749 (XXV), Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction, 17 December 1970, GAOR 25th Session Supp. 28, 24. 47 Cf., Millicay (2015), p. 272 and spec. p. 285. 48 Cf., Millicay (2007), p. 739 and spec. p. 811. 49 About such position, cf., inter alia, Morris-Sharma (2016), pp. 79–81. 50 UNGA, Letter dated 25 July 2014 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, 23 July 2014, UN Doc. A/69/177, at Annex, para. 48. 51 UNGA, letter dated 25 July 2014, cit., paras. 49, 51. 52 Cf., Morris-Sharma (2016), p. 78.

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reserves the High Seas for peaceful purpose. Therefore, Part XII of UNCLOS would apply.53

5 The EU’s Pragmatic Position on the ABNJ: A Possible Third Way to Walk on? On 19 June 2015, the UNGA decided to establish, prior to holding an intergovernmental conference (IgC), a Preparatory Committee (PrepCom), to make substantive recommendations to the UNGA on the elements of a draft text of an international legally binding instrument under UNCLOS. In March 2016, the Council decided54 to authorise the Commission to negotiate, on behalf of the EU as regards matters falling within the EU’s competence and in respect of which the EU has adopted rules, on the elements of a draft text of the ILBI. The PrepCom held four sessions over a period of 2 years, namely 2016 and 2017. At its last session, held from 10 to 21 July 2017, the PrepCom adopted its report to the UNGA,55 in order to take a decision, as soon as possible, on the convening of an IgC under the auspices of the UN. On the basis of these recommendations, the UNGA also decided to convene an IgC to elaborate the text of such ILBI under the UNCLOS during the 2018.56 In this context, considering that the EU is a party of the UNCLOS, in January 2018 the Commission recommended the Council of the EU to adopt a decision to authorize the Commission to negotiate such instrument.57 However, the Government of the United Kingdom has expressed some perplexities about the proposal of the Commission. Indeed, the Minister of UK Government (Sir Alan Duncan) indicates that, even though the UK is a strong supporter of these negotiations (which align with the Government’s 25 Year Plan to Improve the Environment), the proposal raises legal concerns, which do not adequately reflect the fact that the negotiations

53

About such position, cf., Morris-Sharma (2016), pp. 78–79. Decision 6862/16 of the Council, on authorising the opening of negotiations on behalf of the European Union on the elements of a draft text of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction, 15 March 2016, p. 1. 55 For the report of the PrepCom, see http://www.un.org/ga/search/view_doc.asp?symbol¼A/AC. 287/2017/PC.4/2. 56 The organizational session of the IgC was held on 14–16 April 2018 at the Headquarter of the UN in New York. The first session of the IgC will be held on 4–17 September 2018. For the official calendar of the meetings, see http://www.un.org/depts/los/reference_files/calendar_of_meetings. htm. 57 See European Commission, Recommendation for a Council Decision, on authorising the opening of negotiations on an international legally-binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, 4 January 2018, COM(2017) 812 final, p. 2. 54

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covered areas of shared competences. Indeed, in the Explanatory Memorandum of 23 January 2018, the Minister of UK Government has remarked that Decision 2016/ 455 had an environmental legal basis (Art. 192, par. 1, TFUE) to reflect the existence of shared competences and made special provision for the coordination between the Commission and the Member States in areas of shared competence and that neither of which may be found in the current proposal. He indicates that this matter may be addressed in the COMAR negotiations on this draft Decision.58 Now, in order to analyse the contribution of the EU, it is important to recall that Ad Hoc OICP Working Group (AHWG) began its work during the 2015; in this context, the EU was represented by officers of the EU Council and of European Commission.59 The AHWG was aimed at studying issues relating, inter alia, to the conservation of marine biodiversity in the ABNJ, in which the EU is a pioneer. In fact, as stated by Declan Smith on behalf of the EU at the UN OICP meeting of 8 June 2004: “In principle the European Union would support the development of an instrument, within the framework of the Law of the Sea Convention, that will provide for the conservation and management of marine biological diversity, including the establishment and regulation, on an integrated basis, of marine protected areas where there is a scientific case for establishing these areas.” Besides, at the 2005 OICP meeting, the position of EU outlined the importance to differentiate between the medium-term track and short-term track. In that occasion, Liesbeth Lijnzaad declared on behalf of the EU that: “In the short-term, urgent action to address destructive practices and to protect marine biodiversity and particularly vulnerable eco-systems must be taken. The medium-term track should be aimed at the development of an implementing agreement of UNCLOS.” Before the opening of the 2015 OICP, the EU and its Member States jointly expressed the view that a third ILBI under the UNCLOS “. . .will bring an added value to the present legal regime of ocean and sea moving from sectorial and fragmented approaches to a global and more coherent vision.”60 The EU completely agreed on a new ILBI under the UNCLOS. Together with its 28 Member States, the EU highlighted that the adoption of such ILBI reaffirms the importance of the longterm conservation, management and sustainable use of the living marine resources of the world’s oceans and seas, as well as the obligations of States to cooperate to this end, in accordance with international law, as reflected in the relevant provisions of the UNCLOS, according to Part V and Part VII. The adoption of such a new ILBI will give the possibility to intervene effectively into the legal gaps of the UNCLOS. Indeed, in December 2016, the EU and its 28 Member States submitted several observations relating to the topics addressed by the informal working group on

58 For further details, see https://publications.parliament.uk/pa/cm201719/cmselect/cmeuleg/301xiii/30109.htm#_idTextAnchor013. 59 On the final list of participants to the OICP of 2015 to study issues relating to the ABNJ, see http:// www.un.org/depts/los/biodiversityworkinggroup/documents/participants_wg9.pdf. 60 Opening Statement on 20 January 2015 by Tullio Scovazzi on behalf of the EU and its Member States. Cf., Scovazzi (2015), pp. 65–67.

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cross-cutting issues during the second session of the PrepCom.61 The EU stressed the importance of several matters under the UNCLOS related to the new ILBI, such as: the definition of the objectives and the guide principles of such ILBI; the international cooperation and coordination in the respect of Part V and VII of UNCLOS or the sustainable use of marine biodiversity; the strong position that not only the States may become member of the ILBI. In fact, considering that similarly to Art. 305 in connection with Annex IX of UNCLOS, it should also be open for signature by IOs allowing for the participation of the EU and, finally, a better cooperation and coordination with relevant IOs and to bolster coherence and complementarity of action among them. In this last case, the EU outlined that the ILBI should envisage a possibility for the participation of and/or the cooperation with other IOs, within their respective mandates, in practical arrangements under the ILBI, mostly to guarantee an effective coordination with the other international instruments, in the respect of the resolution 69/292, whose respect should not be undermined. In fact, several international instruments are also applicable in ABNJ, such as those developed by the FAO on fisheries (such as the International Guidelines for the Management of Deep-sea Fisheries in the High Seas),62 the IMO on shipping and the International Seabed Authority (ISA) on seabed mining and several arrangements made by RFMOs. The latter includes the UNFSA relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, which establishes the obligation of States to cooperate through the RFMOs and arrangements, by following the scientific advice, developing standards for accurate reporting of fisheries catch data. Despite the direct or indirect effects they could have on the ABNJ and considering the different status that the EU has with(in) such IOs, the EU has actively participated in each of these legal instruments, supporting the adoption of a coherent standard for the protection of the marine environment. Then, during 2017, the EU and its 28 Member States expressed a more pragmatic position, choosing a middle-way path between the two opposite sides described above.63 The EU also supported a multilateral benefit sharing regime as a part of an integrated approach to conservation and sustainable use of biodiversity in ABNJ. In this case, the EU proposed to subject the access to MGRs to notification or authorization, based on a flag state jurisdiction or related to an international mechanism to be established by a new ILBI. Indeed, the practice showed that the EU as a whole recognizes that, while the principle of common heritage of mankind should not be the applicable principle, the “first come, first served basis” approach to “bioprospecting” activities for marine biodiversity and especially to the MGRs—based on the high seas freedom principle—could be harmful to the conservation and sustainable use of the marine

61 For the written submissions, see http://www.un.org/depts/los/biodiversity/prepcom_files/rolling_ comp/European%20Union-cross-cutting_issues.pdf. 62 FAO, International Guidelines for the Management of Deep-sea Fisheries in the High Seas, 2009. 63 See infra para. 4.

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environment. The EU has emphasized the importance to search for a third and hybrid path to balance the legal gaps of UNCLOS and the need to concrete specific measures in favour of the marine biodiversity in ABNJ. In this context, several practical options have emerged during the discussions, such as: (a) The Application of the Common Concern of Humankind principle as an alternative to the principle of Common Heritage of Mankind64; (b) The drawing from Part XIII UNCLOS relating to marine scientific research (MSR).

In fact, instead of seeking to resolve the applicable legal regime through the lens of the Part VII or XI, such as suggested by the two major opinions during the negotiations, it is proposed that approaching the issues of ABNJ starting from Part XIII of UNCLOS may offer a useful insight.65 This is because the marine scientific research can take place under both Part VII and XI.66 Indeed, according to Art. 238 UNCLOS, all the States and the competent IOs have the right to conduct marine scientific research. MSR is also one of the freedoms of the high seas according Art. 87 of UNCLOS. In addition, there are several provisions in Part XI UNCLOS dealing with MSR in the Area, as Art. 143 of UNCLOS, which stated that MSR shall be carried out exclusively for peaceful purposes and the benefit of mankind in accordance with Part XIII. Besides, there has been suggested that the bioprospecting activity may be subject of MSR. In this context, it is outlined that there is an inextricable factual link between MSR and bioprospecting and that it is impossible to establish a clear-cut distinction between one activity and the other and between one purpose and the other. In fact, The UNCLOS does not provide any definition of MSR. Art. 246, which applies to the exclusive economic zone and the continental shelf, makes a distinction between two kinds of MSR projects, namely those carried out “to increase scientific knowledge of the marine environment for the benefit of all mankind” (par. 3) and those “of direct significance for the exploration and exploitation of natural resources, whether living or non-living” (par. 5, let. a). It is highlighted that this distinction supports the conclusion that, under the UNCLOS regime, also research activities directly related to the purpose of commercial exploitation of resources, such as bioprospecting, fall under the general label of MS.67 (c) the Adaptation from the Nagoya Protocol,68 which may represent a possible model to adapt appropriately to the ABNJ, and, mainly, to the exploitation of MGRs.

64 It is suggested that such principle could be applied precisely to the MGRs issues. Cf., inter alia, Bonfanti and Trevisanut (2012-2013), p. 187 and spec. p. 197. 65 In fact, as stated in the written submission of the COMAR of 25 July 2016, on behalf of the EU and its Member States, the determination of the legal status of MGRs originating in ABNJ is not a precondition for including relevant provisions in a future ILBI. See http://www.un.org/depts/los/ biodiversity/prepcom_files/EU&MS_Written_Submission_BBNJ.pdf, p. 2, paras. 12–13. 66 Cf., Morris-Sharma (2016), p. 71 and spec. p. 90. 67 Cf., Scovazzi (2007), p. 11, spec. p. 18. 68 The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, adopted in Nagoya on 29 October 2010 and entered into force on 12 October 2014, UNEP/CBD/COP/DEC/ X/1.

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As to the Nagoya Protocol, the EU has argued that a new ILBI under UNCLOS could borrow the definition of “utilization of genetic resources” from the Protocol itself. As UNCLOS does not make any reference to genetic resources, this may actually appear as a useful starting point. The Nagoya Protocol raises complex issues. For instance, it is generally understood that it comprises not only genetic resources, but also the so-called “derivatives”, which are material that does not contain DNA, such as the secretions of certain organisms. This inclusion may be significant in broadening the range of natural materials from the use of which benefit-sharing obligations would arise.69 Now, as remarked above, the IgC will meet for four sessions. The first one was convened from 4 to 17 September 2018.70 In this first context, the IgC addressed several issues, such as the conservation and sustainable use of marine biological diversity of ABNJ and together and as a whole, MGRs, including questions on the sharing of benefits, measures such as area-based management tools, including marine protected areas, environmental impact assessments (EIA) and capacitybuilding and the transfer of marine technology (CB&TT).71 In the session in question, as described below, the EU participated actively, speaking with one voice, outlining possible and practical options to develop and to integrate during all the negotiations and, sometimes, with the support of several developed countries. First of all, it is important to outline that the EU urged starting text-based negotiations on the basis of a zero draft, through a stepwise approach, building on the options identified at the PrepCom, and clarifying the ILBI’s key functions and regulatory options to reach a consensus agreement by 2020. In particular, stating that “we now understand each other better” the EU’s delegate suggested that the zerodraft focus on substantive positions as well as the different options brought to the table by various Member States. Although the text needs not include definitions or final clauses, the EU highlighted the idea that it could identify areas of convergence and commonalities.72 During the discussion on the MGRs, the EU stressed that it is premature to focus on definitions at this stage and emphasized that the ILBI negotiations do not depend on determining the legal status of MGRs. The EU favoured free access to in situ MGRs, in line with UNCLOS provisions on MSR and Part XII. Rather, discussions should move forward based on working definitions drawn from existing instruments. The ILBI should be interpreted in a manner consistent with the UNCLOS and should not undermine the rights and duties of States under that text.

69

For a comment, cf., Morgera (2015). The next session of the IgC is scheduled from 25 March to 5 April 2019. A third session is scheduled from 19 to 30 August 2019. See https://www.un.org/press/en/2018/sea2086.doc.htm. 71 On the position of the EU on all these matters and others, cf., Morgera et al. (2018), pp. 1–18. 72 On the position of the EU on text-based negotiations based on a zero-draft, see https://www.un. org/press/en/2018/sea2085.doc.htm. 70

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On the benefit-sharing, the EU drew attention to the Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the Global Environment Facility and suggested to focus on “more readily available and feasible” non-monetary benefit-sharing; to consider capacity building and sharing of material, information, and scientific knowledge; and to request notification after MGR collection in ABNJ, including the possibility of sharing digital sequence information. On the ABMT, the EU noted that most competent bodies are working in silos and recommended establishing criteria whereby coastal states. The EU recommended stating that nothing should prevent parties from adopting additional or stricter measures and encouraging non-party States to adopt similar measures to those contained in an ABMT management plan. On the EIA, the EU, Canada, Australia, New Zealand, Norway, and FAO favoured an activity-oriented approach, while, for example, Colombia preferred a location-oriented one and the High Seas Alliance an effect based one to avoid forum shopping. The EU favored several options, such as: placing obligations on parties to carry out EIAs and make decisions; setting out the basic content of an EIA in the ILBI; and including explicit obligations to take into account EIA outcomes when authorizing activities accompanied by mitigation measures. Besides, the EU favoured consulting adjacent coastal States and addressing their concerns and making the EIA process transparent through a communication platform. Furthermore, on the CB&TT, the EU proposed a general provision setting out CB&TT objectives under the ILBI, supported by the US and Canada; reference to developing States’ special requirements; and needs-driven and responsive CB&TT. The EU stressed that all CB&TT measures should be related to facilities and equipment, human resources and institutional strengthening, and knowledge dissemination. The EU emphasized the promotion of cross-sectoral coordination and cooperation between IOs.73 On this matter, the EU, with the support of the Japan, the US, and China preferred excluding intellectual property rights, arguing they are addressed under WIPO and the WTO. Finally, as described above, despite the divergence of the positions expressed by the different delegations on the multiple matters of the negotiations, it is important to outline that during all the session in question the EU has participated actively speaking on behalf of its Member States, with this assuming a high level of coordination both internally and externally with its Member States. A fresh start for an effective development of the Law of the Sea.

73 For the intervention of the EU during the IgC and the meeting coverage, see the UN-BBNJ (2018). See https://www.un.org/bbnj/content/statements.

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6 Conclusive Remarks With regard to the ABNJ, the study showed the legal gaps of the UNCLOS showing that what is needed for the time being is the consolidation of a general understanding on a number of commonalities that could become the key elements in the objectives of the ILBI, namely a network of MPAs, EIA, MGRs, including access to and sharing of benefits from them, as well as CB&TT. In fact, through the negotiations of September 2018, initial discussions, particularly on CB&TT, largely followed the PrepCom format and reiterated familiar positions. Similarly, discussions on MGRs confirmed divergent views on a number of issues well-known in the PrepCom negotiations. Disagreement over whether the regime of the common heritage of humankind or high seas freedoms should apply to MGRs persisted. Besides, as remarked above, those favoring high seas freedoms emphasized free access to MGRs, whereas those arguing for common heritage called for some sort of international oversight and equitable benefit-sharing. The preceding analysis suggests that the constraints on States in negotiating a new legal international instrument seem to be not only legal, hiding their respective political interests. This current divergence raises a question: can the existence of two different positions (between those who are in favour of applying the principle of the common heritage of humanity and the regime of freedom of the high seas) be qualified as a limit? In this context, the EU seems to play a key role, stressing the idea of adopting a hybrid and pragmatic position, which may reflect the interdisciplinarity of the issues of the ILBI. Indeed, the practice showed that in the vision of the EU, speaking with one voice, setting the opposing regimes of common heritage of mankind and the freedom of the high seas against each other is not likely to lead to productive results. The stronger participation of the EU may give the possibility to focus on the adoption of concrete measures, such as: the application of the principle of common concern of humankind; the drawing from Part XIII UNCLOS relating to marine scientific research and the adaptation from the Nagoya Protocol. The new status of the EU in the UNGA may lead to a major sharing of such position among other States, improving the implementation and the development of the Law of the Sea, by covering also the legal gaps of the UNCLOS, interconnecting it with other international instruments and IOs, in which the EU is an active player and guarantying a concrete implementation of Art. 278 of UNCLOS. Starting from its new status in the UNGA and speaking with one voice, the EU appears fundamental to outline the importance of the cooperation and coordination between IOs, meanly in which the EU actively participates not only for the negotiations in question but also for the development of the Law of the Sea. The second and third sessions of the IgC will take place in 2019, and the fourth session in the first half of 2020. Time will tell whether the pragmatic position of the EU and its enhanced participation in the UNGA could become a useful compromise between other and more radical positions and whether it may be useful to the EU, ad its Member States, to specify the general elements into more detailed treaty provisions.

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References Arico S, Salpin C (2005) Bioprospecting of genetic resources in the deep seabed: scientific, legal and policy aspects. United Nations University, Yokohama Armas Pfirter FM (2006) The management of seabed living resources in “the area” under UNCLOS. Revista Electrónica de Estudios Internacionales 11:1–29 Barnes R (2010) Entitlement to marine living resources in areas beyond national jurisdiction. In: Oude Elferink AG, Molenaar EJ (eds) The international legal regime of areas beyond national jurisdiction: current and future developments. Martinus Nijhoff, Leiden, pp 81–141 Bengoetxea J (2011) The EU as (more than) an international organization. In: Klabbers J, Wallendahl A (eds) Research handbook on the law of international organizations. Northampton Publishing House, Northampton, pp 448–465 Bonfanti A, Trevisanut S (2012-2013) TRIPS on the high seas: intellectual property rights on marine genetic resources. J Int Law 37:187–232 Brewer E (2012) The participation of the European Union in the work of the United Nations: evolving to reflect the new realities of regional organizations. Int Organ Law Rev 9(1):181–225 Cremona M (2008) Defending the community interest: the duties of cooperation and compliance. In: Cremona M, De Witte B (eds) EU foreign relations law - constitutional fundamentals. Hart, Oxford, pp 125–169 De La Fayette LA (2009) A new regime for the conservation and sustainable use of marine biodiversity and genetic resources beyond the limits of national jurisdiction. Int J Mar Coast Law 24:221–280 Diz D (2017) Marine biodiversity: unravelling the intricacies of global frameworks and applicable concepts. In: Morgera E, Razzaque J (eds) Biodiversity and nature protection law, vol III. Elgar Edward, Cheltenham, pp 123–144 Emerson M et al (eds) (2011) Upgrading the EU’s role as global actor institutions, law and the restructuring of European diplomacy. CEPS Paperbacks, Leuven. Available via https://www. ceps.eu/publications/upgrading-eus-role-global-actor-institutions-law-and-restructuring-euro pean-diplomacy Gaja G (1980–81) The European community’s participation in the law of the sea convention: some incoherencies in a compromise solution. Italian Yearb Int Law 5:110–114 Glowka L (1996) The deepest of ironies: genetic resources, marine scientific research, and the area. Ocean Yearb 12(2):154–178 Guimãres FA (2015) Speak up! getting the EU a voice at the UN. In: Koops JA, Macaj G (eds) The European Union as a diplomatic actor. Palgrave Macmillan, Basingstoke, pp 88–102 Hillion C (2010) Mixity and Coherence in EU external relations: the significance of the duty of cooperation. In: Hillion C, Koutrakos P (eds) Mixed agreements in EU law revisited – the EU and its member states in the world. Hart, Oxford, pp 87–115 Kirchner A (2010) Bioprospecting, marine scientific research and the patentability of genetic resources. In: Martínez Gutiérrez NA (ed) Serving the rule of international maritime law. Essays in Honor of professor David Joseph Attard. Routledge, London, pp 119–128 Kiss AC (1982) La notion de patrimoine commun de l’humanité. Collect Courses Hague Acad Int Law 175:99–256 Korn H et al (2003) Deep sea genetic resources in the context of the convention of biological diversity and the United Nations conventions on the law of the sea. Bundesamt Für Naturschutz, Bonn. Available via https://bfn.de/fileadmin/MDB/documents/skript79.pdf Leary DK (2006) International law and genetic resources of the deep sea. Martinus Nijhoff, Leiden Leary DK et al (2009) Marine genetic resources: a review of scientific and commercial interest. Mar Policy 33(2):183–194 Lijnzaad L (2014) Declarations of competence in the law of the sea, a very European affair. In: Lodge MW, Nor Quist MH (eds) Peaceful order in the world’s oceans. Essays in Honor of Satya N. Nandan. Brill/Nijhoff, Leiden/Boston, pp 186–207

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Long R (2014) The inexorable rise of the United Nations Convention on the law of the sea within the European legal order. In: Lodge MW, Nordquist MH (eds) Peaceful order in the world’s oceans. Essays in Honor of Satya N. Nandan. Brill/Nijhoff, Leiden/Boston, pp 167–185 Marquardt S (2017) Still new kids on the EU’s institutional block? the high representative and the European external action service seven years after the entry into force of the treaty of Lisbon. In: Czuczai J, Naert F (eds) The EU as a global actor – bridging legal theory and practice. Brill/ Nijhoff, Leiden/Boston, pp 3–37 Millicay F (2007) A legal regime for the biodiversity of the area. Law. In: Nordquist MH, Long R, Heider T, Moore JN (eds) Law, science and ocean management. Martinus Nijhoff, Leiden, pp 739–850 Millicay F (2015) The common heritage of mankind: 21st century challenges of a revolutionary concept. In: Del Castillo L (ed) Law of the sea, from Grotius to the international tribunal law of the sea: liber amicorum judge Hugo Caminos. Koninklijke Brill NV, Leiden, pp 272–295 Morgera E (2015) Benefit-sharing in marine areas beyond national jurisdiction: where are we at? (part. II). Available via https://www.research.ed.ac.uk/portal/files/18927151/Morgera_Benefit_ sharing_in_Marine_Areas_Part_II_BENELEX.pdf Morgera E et al (2018) Summary of the first session of the intergovernmental conference on an international legally binding instrument under the UN convention on the law of the sea on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction: 4–17 September 2018. Earth Negot Bull 25(179):1–18. Available Via http://enb.iisd.org/ oceans/bbnj/igc1/ Morris-Sharma NY (2016) Marine genetic resources in area beyond national jurisdiction: issues with, in and outside of UNCLOS. Max Planck Yearb United Nations Law 20:71–97 Neframi E (2010) The duty of loyalty: rethinking its scope through its application in the field of the EU external relations. Common Mark Law Rev 47(2):323–359 Oude Elferink AG (2007) The regime of the area: delineating the scope of application of the common heritage principle and freedom of the high seas. Int J Mar Coast Law 22:143–176 Paasivirta E (2015) The European Union and the United Nations convention on the law of the sea. Fordham Int Law J 38(5):1045–1071 Paasivirta E, Porter D (2006) EU coordination at the UN general assembly and ECOSOC: a view from Brussels, a view from New York. In: Wouters J et al (eds) The United Nations and the European Union. T.M.C. Asser Press, The Hague, pp 35–48 Pardo A (1975) The common heritage: selected papers on oceans and world order 1967–1974. Malta University Press, Malta Prip C (2016) Towards a new legally binding instrument on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction. In: The JCLOS Blog. K.G. Jebsen Centre for the Law of the Sea. Available via http://site.uit.no/jclos/files/2016/10/Towards-anew-legally-binding-instrument-on-the-conservation-and-sustainable-use-of-marine-biodiver sity-of-areas-beyond-national-jurisdiction.pdf Ridgeway LL (2009) Marine genetic resources: outcomes of the United Nations informal consultative process. Int J Mar Coast Law 24(2):309–331 Scovazzi T (2004) Mining, protection of the environment, scientific research and bioprospecting: some considerations on the role of the international seabed authority. Int J Mar Coast Law 19:383–409 Scovazzi T (2007) The concept of common heritage of mankind and the genetic resources of the seabed beyond the limits of national jurisdiction. Agenda Int 25:11–30 Scovazzi T (2011) Note on the establishment of marine protected areas beyond national jurisdiction or in areas where the limits of national sovereignty or jurisdiction have not yet been defined in the Mediterranean Sea. Ed. RAC/SPA. United Nations Environment Programme, Tunis. Available via http://www.rac-spa.org/sites/default/files/doc_spamis/note_amp_en.pdf Scovazzi T (2015) Negotiating conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction: prospects and challenges. Ital Yearb Int Law 24:63–85

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Scovazzi T (2016) The Negotiations for a binding instrument on the conservation and sustainable use of marine biological diversity beyond national jurisdiction. Mar Policy 70:188–207 Serrano De Haro PA (2012) Participation of the European Union in the work of the United Nations: general assembly resolution 65/276. CLEER Working Paper. T.M.C. Asser Instituut. Available via http://www.asser.nl/media/1633/cleer2012-4web.pdf Simmonds KR (1989) The European economic community and the new law of the sea. Collect Courses Hague Acad Int Law 218:9–154 Treves T (1976) La Comunità economica europea e la conferenza sul diritto del mare. Rivista di diritto internazionale 2:455–467 Treves T (2002) The European community and the law of the sea convention: new developments. In: Cannizzaro E (ed) The European Union as an actor in international relations. Kluwer Law International, The Hague, pp 279–296 von Bogdandy A (2012) Neither an international organization nor a nation state: the European Union as a supranational federation. In: Jones E, Menon A, Weatherill S (eds) The Oxford handbook of the European Union. Oxford University Press, Oxford, pp 761–776 Wessel R (2011) The legal framework for the participation of the European Union in international institutions. J Eur Integr 33(6):621–635

Documents UN-BBNJ (2018) Intergovernmental conference on an international legally binding instrument under the United Nations convention on the law of the sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (General Assembly resolution 72/249). Available via https://www.un.org/bbnj/content/meeting-coverage

Luigimaria Riccardi PhD candidate in Legal Studies at the Department of Law of the University of Pisa (waiting for public defense). Collaboration and tutoring activities in public international law and European Union law at the University of Pisa. Fellow of the Hague Academy of International Law (2019), Winter Courses on International Law. Collaborator at Lauro Law Firm – International Law Firm, Naples. Stagiaire at Freshfields Bruckhaus Deringer LLP.

Chapter 22

Solving the Potential Conflict: High Seas Marine Protected Areas and Sovereign Rights Over the Continental Shelf Beyond 200 Nautical Miles Inês Aguiar Branco

Abstract Despite representing more than 60% of Earth’s oceans, and hosting a substantial part of its biodiversity, marine areas beyond national jurisdiction remain largely unprotected. Consequently, the discussions on the conservation and sustainable use of marine biodiversity in these areas have become the focus of the international community over the past decade. As a result, the United Nations General Assembly decided to convene an intergovernmental conference to elaborate the text of an international legally binding instrument, under the United Nations Convention on the Law of the Sea, on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction. During the discussions leading to this decision, the advent of potential conflicts between the sovereign rights connected to the continental shelf beyond 200 nm and the protective measures applied in Marine Protected Areas established in the High Seas, was expressed as one of the pressing concerns. Therefore, it is feared that such concerns will somehow deter these States from expressing their consent to be bound by the agreement in the end. This chapter aims to analyse the aforementioned potential conflict and, through such an analysis, push the work of the intergovernmental conference forward by providing a possible legal framework to prevent said conflict from having undesired results.

The views expressed herein are those of the author and do not necessarily reflect the views of the International Tribunal for the Law of the Sea, the Nippon Foundation of Japan, the Portuguese Government, The World Resources Institute and the authority of the country or institution whose facilities were made available for use by the author during the 2016–2017 ITLOSNippon Capacity Building and Training Programme on Dispute Settlement under UNCLOS. The author appreciates the thoughtful comments and discussions exchanged with the Judges and Legal Officers of the International Tribunal on the Law of the Sea, in particular His Excellency Judge T. Nyndiae, along with the endless guidance and assistance of many Professors and friends, without which this chapter would have never become more than a passionate idea. I. Aguiar Branco (*) World Resources Institute, Sustainable Ocean Initiative, Secretariat - High Level Panel for a Sustainable Ocean Economy, London, UK e-mail: [email protected] © Springer Nature Switzerland AG 2020 M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea, https://doi.org/10.1007/978-3-030-42671-2_22

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1 Introduction Marine biodiversity is essential for human life as it supports multiple ecosystem services in which humanity depends on.1 Despite its vital role for human life, pressure on marine biodiversity is escalating due to increasing exploitation of living resources, climate change, ocean acidification and pollution, particularly in marine areas beyond national jurisdiction (ABNJ).2 Consequently, marine biodiversity in these areas is rapidly declining, a fact that generated growing concern regarding its conservation as it is considered to be essential to secure long term sustainable use of these resources for everyone, including future generations.3 Resulting from said concern, the discussions on the conservation and sustainable use of marine biodiversity beyond national jurisdiction (BBNJ) have become the focus of the international community. Starting in 2004, the United Nations General Assembly (UNGA) established an Ad Hoc Open-ended Informal Working Group (WG) to study issues relating to the conservation and sustainable use of BBNJ.4 This WG held nine meetings and, in January 2015, issued a final report containing a series of recommendations to UNGA on the way forward.5 These recommendations resulted in an UNGA Resolution.6 Said Resolution determined the creation of a Preparatory Committee (Prep Com) to make substantive recommendations to the UNGA on the elements of a draft text for an International Legally Binding Instrument (ILBI) under the United Nations Convention on the Law of the Sea (UNCLOS) for conservation and sustainable use of BBNJ.7 Also resulting from the recommendations of the WG, and reflecting the general agreement of the international community,8 the Resolution included a provision stating that the negotiations of the Prep Com would address the topics identified in the package agreed in 2011.9 They would focus, especially, on marine genetic resources (and benefit sharing), area-based management tools (including Marine Protected Areas (MPAs) and environmental impact assessments), capacity-building and the transfer of marine technology.10

1

Tanaka (2012a), pp. 312–313; Wright et al. (2015), pp. 272–290; Gjerde et al. (2016), p. 46; Jakobsen (2016), p. 3. 2 Wright et al. (2015), pp. 264 and 286. 3 Tanaka (2012a), pp. 312–313; Tanaka (2011), p. 292; Wright et al. (2015), pp. 272 and 286; Jakobsen (2016), p. 4. 4 UNGA Resolution 59/24 para. 73. 5 BBNJ WG Report A/69/780. 6 UNGA Resolution 69/292. 7 UNGA Resolution 69/292, para. 1 (a). 8 BBNJ WG Report A/69/780, para. 15. 9 BBNJ WG Report A/66/119 para. 1 (b). 10 UNGA Resolution 69/292, para. 2.

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In the past decade, MPAs have been praised as one of the most important mechanisms for the protection and conservation of BBNJ.11 Consequently, both during the discussions of the WG and the Prep Com, the establishment of the mechanism and criteria for the creation of a global network of MPAs in the High Seas (HS) has been expressed as being one of the main objectives of the new ILBI.12 Despite sharing the desire for the establishment of a global network of MPAs in the HS, during the meetings of the Prep Com, some States have expressed concerns regarding the advent of potential conflicts between the sovereign rights connected to the continental shelf beyond 200 nm (OCS) and the protective measures applied in MPAs established in the HS.13,14 These concerns were so controversial that, in the Chair’s overview of the second session of the Prep Com, the matter of the respect for the rights of the coastal States over their respective OCS remained included under the list of issues requiring further discussion.15 Nevertheless, little progress was accomplished on this discussion in the following meetings of the Prep Com resulting in a final Report of the Prep Com with very broad recommendations on this issue.16 Consequently, the matter is to be further discussed in future negotiations as the UNGA has decided to follow the recommendation of the Prep Com and convene an intergovernmental conference with a view to developing the ILBI on conservation and sustainable use of BBNJ as soon as possible.17 As an ILBI still in development, States will only have to comply with it if (and after) they express their consent to be bound by it.18 Hence, it is crucial, at this point, to find means to pacify the referred concerns on the issue, thus generating a strong and universally acceptable ILBI and allowing the negotiations to move forward.

11 Tanaka (2012b), pp. 298–299; Convention on Biological Diversity, COP Decision VIII/24, Protected Area, UNEP/CBD/COP/DEC/VIII/24, 15 June 2006, p. 8, para. 38; UNGA Letter dated 16 March 2010 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, A/65/68, 17 March 2010, p. 12, para. 58; Letter dated 30 June 2011 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, A/66/119, 30 June 2011, p. 6, para. 23. 12 Morgera et al. (2016a), p. 7; Morgera et al. (2016b), pp. 9–11; Charles E, Chair’s overview of the first session of the Preparatory Committee, 2016, p. 19; Verkuijl (2016), p. 302; Mossop (2016), p. 245. 13 Among them the Russian Federation, China, Indonesia, Norway, Bangladesh, Canada, Morocco, Iceland, Australia, Venezuela, Federate States of Micronesia, Japan and Saudi Arabia.; Morgera et al. (2016a), pp. 7 and 16; Morgera et al. (2016b), pp. 9–10; Morgera et al. (2017a), pp. 5–6; Morgera et al. (2017b), pp. 6–8. 14 Morgera et al. (2016a), p. 7; Morgera et al. (2016b), pp. 9–11; Charles E, Chair’s overview of the first session of the Preparatory Committee, 2016, p. 19. 15 Charles E, Chair’s overview of the second session of the Preparatory Committee, 2016, Appendix 2; Verkuijl (2016), p. 302. 16 Report A/AC.287/2017/PC.4/2, pp. 7, 9 and 11–17. 17 Report A/AC.287/2017/PC.4/2, p. 7 and UNGA Resolution 72/249, p. 1. 18 Arts 12 to 15 of the Vienna Convention on the Law of Treaties; Tladi (2015), pp. 657 and 671–672.

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Accordingly, there is the fear that the potential conflict, between the sovereign rights connected to the OCS and the protective measures applied in MPAs established in the HS, will somehow deter these States from expressing their consent to be bound by an agreement in the end.19 Bearing in mind the abovementioned, the next section analyses the origins of the conflict, what is at stake in current negotiations and the reasons for its potentiality.

2 The Potential Conflict 2.1

Origins of the Conflict

Despite recognizing the interlinkage between ocean problems in its preamble,20 UNCLOS divides the ocean into multiple jurisdictional spaces based solely on distance from the coast.21 This is done irrespective of the nature of the oceans and the natural resources within them,22 thus insufficiently addressing not only the ecological interactions between marine species, but also the physical conditions surrounding them.23 Additionally, UNCLOS is dominated by the principles of sovereignty and freedom.24 Therefore, the jurisdictional spaces referred above have been divided into two categories: areas within national jurisdiction (AWNJ) and ABNJ, in which the principles of sovereignty/sovereign rights and freedom/common heritage of mankind apply, respectively.25 For the purpose of this research, a brief analysis of two jurisdictional spaces is necessary: the OCS and the HS situated in AWNJ and ABNJ, respectively.

2.1.1

The Legal Frameworks of the OCS and the HS

The right to establish the outer limit of the OCS, up to a maximum limit of 350 nm from the baselines from which the breadth of the territorial sea is measured, or 100 nm from the 2500 m isobath, is provided for by UNCLOS.26 As such, the rights of the coastal State over the OCS are the same as the rights it possesses over the

19

Verkuijl (2016), p. 302; Mossop (2016), p. 245; Tladi (2015), pp. 657 and 671–672. Tanaka (2004), p. 486. 21 Tanaka (2004), pp. 483–486. 22 Ibid. 23 Ibid. 24 Ibid. 25 Ibid. 26 Art. 76 (4 to 8), UNCLOS; O’Leary et al. (2012), p. 602; Scott (2012), p. 856; Heidar (2004), pp. 23–28. 20

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continental shelf. Namely, exclusive jurisdiction for the purpose of exploring and exploiting its natural resources,27 with the exception of the obligation to make contributions to the International Seabed Authority (ISA), in case of exploitation of non-living resources of the OCS.28 The exercise of these rights shall not infringe or unjustifiably interfere with the rights and freedoms of other States provided for by UNCLOS.29 The HS represent the water column beyond the exclusive economic zone (EEZ), the territorial sea, the internal waters or the archipelagic waters of any State.30 The HS are subject to the principle of freedom of the HS which includes the following freedoms: navigation, overflight, laying of pipelines and cables, fishing, scientific research and construction of artificial islands and installations.31 These freedoms should be exercised with due regard for the rights and interests of other States.32 It is important to point out that the exercise of jurisdiction in both the HS and the OCS is subject to the obligation to protect and preserve the marine environment, and the obligation to cooperate and exchange information with other States and International Organizations in its protection and preservation.33 Nevertheless, these obligations are very broad and do not set specific duties or guidelines for States on how to cooperate or avoid activities that have a negative impact in the marine environment and its biodiversity.34

2.1.2

The Legal Framework of MPAs

Even though UNCLOS does not textually provide a legal basis for the establishment of MPAs, it encourages the use of area-based management tools and other measures in pursuit of the obligations described above, and MPAs can, with all certainty, be considered as one of these tools and measures.35 The protection and preservation of the marine environment through MPAs, in particular of its marine biodiversity, has not only been widely recognized as the best mechanism to secure it, but has also become a worldwide political priority.36 27

Art. 77, UNCLOS; Mossop (2016), p. 176. Art. 82, UNCLOS; Heidar (2004), pp. 35–36. 29 Art. 78, UNCLOS; Mossop (2016), p. 182. 30 Art. 86, UNCLOS; Salpin and Germani (2010), p. 179; Gjerde (2001), p. 524. 31 Art. 87 (1), UNCLOS; Gjerde (2001), p. 524. 32 Art. 87 (2), UNCLOS; Mossop (2016), p. 176; Salpin and Germani (2010), p. 179; Tanaka (2004), p. 487. 33 Arts 192 to 237, UNCLOS; Jakobsen (2016), pp. 13 and 58–60; Tanaka (2008), pp. 203–205; Tanaka (2012a), p. 317; Gjerde (2001), p. 515; Heidar (2017), pp. 101–103; Caron and Minas (2018), pp. 529–552. 34 Jakobsen (2016), pp. 13 and 58–60; Tladi (2015), pp. 659–660. 35 Tladi (2015), p. 657; Jakobsen (2016), pp. 51–52; Scott (2012), p. 851. 36 Tanaka (2012b), pp. 298–299; Convention on Biological Diversity, COP Decision VIII/24, Protected Area, UNEP/CBD/COP/DEC/VIII/24, 15 June 2006, p. 8, para. 38; United Nations, 28

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Despite having no universally agreed legal definition, the notion of MPA covers a wide range of marine areas established for different purposes and on different legal basis, in which specific restrictions are applicable.37 It is precisely due to this broad range of purposes and protective/restrictive measures that MPAs need to be established in the context of the particular legal and institutional framework in which the selected area will lie.38

The Legal Framework of MPAs in the OCS As part of AWNJ, the mandate for the establishment of MPAs in the OCS lies with the coastal State alone.39 Even though not explicitly described in UNCLOS, the term “sovereign rights for the purpose of exploring and exploiting its natural resources” is regarded to include both prescriptive and enforcement jurisdiction and therefore, the jurisdiction over the enforcement of protective measures of MPAs in the OCS of a coastal State falls within the responsibility of that coastal State.40 As such, it is clear that, in the OCS, the coastal State can, not only establish MPAs but also, adopt measures that prevent his own vessels from undertaking certain activities.41 It remains unclear however, if such unilateral measures can also bind vessels flying other flags, especially when such measures are not targeting sedentary species.42

The Legal Framework of MPAs in the HS As part of ABNJ, no State is entitled to unilaterally establish MPAs, or to adopt regulations on foreign vessels or other activities, in the HS that are binding upon other States without their consent.43 As a consequence of the principle of freedom of the HS, all States must agree with the establishment of MPAs in the HS for them to acquire universal binding force and recognition.44 Accordingly, cooperation between States through agreements to General Assembly, Letter dated 16 March 2010 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, A/65/68, 17 March 2010, 12, para. 58; See also Letter dated 30 June 2011 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, A/66/119, 30 June 2011, 6, para. 23; Ribeiro (2014), pp. 179–181. 37 Salpin and Germani (2010), pp. 177–178; Jakobsen (2016), pp. 5–6; Wolf and Bischoff (2013). 38 Ibid. 39 Jakobsen (2016), pp. 19 and 61. 40 Jakobsen (2016), pp. 19, 50 and 61. 41 Wright et al. (2015), p. 182. 42 Wright et al. (2015), pp. 182–183; Jakobsen (2016), p. 49. 43 Jakobsen (2016), pp. 19 and 54; Tanaka (2012b), pp. 315–317. 44 Jakobsen (2016), pp. 52–53 and 61; Tanaka (2012b), pp. 315–317.

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designate MPAs can bind only the States that are parties to them.45 Regarding the enforcement of MPAs in the HS, the principle of flag State jurisdiction applies and therefore the flag State is responsible for ensuring that its vessels comply with agreed protective measures under an established MPA, to which that State has agreed to.46 Additionally, the establishment of MPAs in the HS requires both coordination and cooperation among a multitude of existing bodies and regional initiatives that have management functions and competence to adopt measures to protect certain areas of the HS, such as the International Maritime Organization (IMO) for shipping, Regional Fisheries Management Organizations (RFMOs) for fishing and regional seas programmes focussing directly on the protection of the marine environment.47 Despite the described difficulties in establishing MPAs in ABNJ, the practice is gaining momentum at regional level where a number of initiatives have been put in motion.48 These initiatives include those undertaken in the Mediterranean Sea, the Southern Ocean, the North-East Atlantic and the Sargasso Sea, although levels of success vary.49

2.1.3

Existing Regional Initiatives for the Conservation and Sustainable Use of ABNJ

Resulting from the lack of an international legal framework governing ABNJ, the conservation and sustainable use of these areas is being dealt with by a mixture of different regional institutions/agreements.50 Most of these institutions focus on the management of a particular resource or activity, focusing on a particular region, resulting in a fragmented approach that bears multiple challenges and provides questionable progress on the establishment and effective management of MPAs in ABNJ.51

The Mediterranean Sea The situation of the Mediterranean Sea is unusual since if all States of the Mediterranean Sea were to declare an EEZ there would be no ABNJ in this area.52

45

Jakobsen (2016), p. 53; Tanaka (2012b), pp. 315–317; Drankier (2012), pp. 346–347. Ibid. Arts 94 and 217, UNCLOS. 47 Jakobsen (2016), pp. 61–62; Scanlon (2018), p. 409. 48 Wright et al. (2015), p. 277. 49 Gjerde et al. (2016), p. 49; Wright et al. (2015), p. 277. 50 Wright et al. (2018), p. 164; Scott (2012), p. 854. 51 Ibid. 52 Rochette et al. (2014), p. 110. 46

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Regardless of this, ABNJ still exists in the Mediterranean Sea as its States have opted for a different approach.53 The Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean Sea, adopted in 1976, in Barcelona, and amended in 1995, reflects the acknowledgement of the need to protect the Mediterranean Sea by its signatories.54 The 1995 Protocol, concerning Specially Protected Areas and Biological Diversity in the Mediterranean, includes ABNJ. As a result of this Protocol, in 1999, the Pelagos Sanctuary was the first MPA, partly covering the HS, established within the framework of a regional sea.55 Regardless of this, the management of the Pelagos Sanctuary has encountered several difficulties as it has failed to fulfil its main goal of improving the conservation status of the area’s marine mammal populations.56 Firstly, due to the lack of a management body dedicated to it and secondly, due to the challenge of coordination of management activities as the regulation of fisheries activities in the region falls under the General Fisheries Commission for the Mediterranean and Black Sea.57

The North East Atlantic The 1992 OSPAR Convention for the Protection of the Marine Environment of the North East Atlantic regulates most human activities that can affect the marine environment and, 40% of the area it covers, falls within ABNJ.58 In 2010, the OSPAR Commission established the first network of MPAs in ABNJ on the basis of legally binding decisions for its establishment and non-binding recommendations on the management of said MPAs.59 Consequently, even though legally competent for the establishment of MPAs in ABNJ, its legal competence to adopt protective measures therein is limited, resulting in questionable effectiveness of the designation of the MPAs in the first place.60 In addition to this, human activities such as fisheries, shipping and seabed mining fall outside the scope of activities within the mandate of the OSPAR Commission and therefore, measures of this nature have to be negotiated within the frameworks of

53

Ibid. Ibid. 55 Rochette et al. (2014), pp. 110 and 112–113; Wright et al. (2015), p. 278; Gjerde et al. (2016), p. 50. 56 Rochette et al. (2014), pp. 110 and 112–113; Wright et al. (2015), p. 278. 57 Ibid. 58 Rochette et al. (2014), p. 111; Wright et al. (2015), pp. 281–283. 59 Rochette et al. (2014), pp. 111 and 113; Jakobsen (2016), pp. 230–231; Wright et al. (2015), pp. 281–283; Scott (2012), p. 853; Gjerde et al. (2016), p. 50. 60 Rochette et al. (2014), pp. 111 and 113; Wright et al. (2015), pp. 281–283. 54

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the North East Atlantic Fisheries Commission (NEAFC), the IMO and the ISA respectively.61 In an attempt to overcome the referred regulatory gaps, the OSPAR Commission has developed a “Collective Arrangement between competent authorities on the management of selected areas in ABNJ in the North East Atlantic” that should be strengthened by a set of MoUs with the relevant sectoral management organizations.62 So far, only the MoU with NEAFC has been signed.63

The Southern Ocean The Southern Ocean falls mostly in ABNJ and is managed and regulated by the 1959 Antarctic Treaty System of which the Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR) is a part of.64 The South Orkney Islands Southern Shelf MPA, established in 2009, was the first MPA established by CCAMLR in the HS and was followed by the establishment, in 2016, of the Ross Sea region MPA.65 However, both MPAs deal merely with the impacts of fishing66 and due to the fact that the CCAMLR Commission takes binding decisions by consensus of its members, the MPA establishment process has been highly politicized.67

The Sargasso Sea The Sargasso Sea is primarily located in ABNJ and refers to an area where no regional seas programs or RFMOs exist.68 In an attempt to establish a management regime to enhance the protection of BBNJ, the Sargasso Sea Alliance was established.69 This was accomplished through the signing of the Hamilton Declaration. The objective of the Hamilton Declaration is to work with the current regulatory structures to seek to develop appropriate conservation measures as such, no regulatory or management authority was created.70

61

Rochette et al. (2014), pp. 111 and 113; Scott (2012), p. 853. Rochette et al. (2014), p. 113. 63 Gjerde et al. (2016), p. 50; Rochette et al. (2014), p. 113; Scott (2012), p. 853. 64 Rochette et al. (2014), p. 111; Wright et al. (2015), pp. 279–281. 65 Rochette et al. (2014), pp. 113–114; Gjerde et al. (2016), p. 50; Scott (2012), pp. 852–853. 66 Rochette et al. (2014), pp. 113–114; Scott (2012), pp. 852–853. 67 Rochette et al. (2014), p. 112; Wright et al. (2015), pp. 279–281; Gjerde et al. (2016), p. 50. 68 Rochette et al. (2014), p. 112; Wright et al. (2015), pp. 283–284; Freestone and Bulger (2016), pp. 80–85. 69 Ibid. 70 Ibid. 62

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As a non-binding instrument/framework, and having a geographical coverage where OSPAR, IMO and the International Convention of Atlantic Tunas operate, the Sargasso Sea Alliance demonstrates the particular need and challenges to coordinate with competent organizations.71

2.1.4

Remaining Challenges/Gaps

In conclusion, despite the existence of regional initiatives with mandates that intersect with the conservation and sustainable use of BBNJ, it is important to note that most of these initiatives were established with a specific purpose and legal mandate to regulate particular activities.72 As such, the majority of them lack the competence, capacity, or mandate to adopt measures to protect BBNJ and none of them have a mandate to implement the cross sectoral and coordinated measures needed for comprehensive protection.73 The multiplication of regional initiatives has led to the increased fragmentation and complexity of ABNJ governance, particularly regarding the establishment of MPAs.74 Consequently, despite a possible extension of their mandates in the future, these initiatives cannot be solely in charge of the establishment and management of MPAs.75 The foregoing discussions on BBNJ have not only highlighted the role of regional initiatives in the conservation of BBNJ through MPAs, but also identified a number of important challenges.76 Such challenges include the lack of an explicit multilateral legal basis to support or facilitate MPA designation, the relationship between MPA management and the principle of freedom of the HS, and the complexity of the jurisdictional regimes governing ABNJ, in particular the HS and the OCS regimes.77

71

Freestone and Bulger (2016), pp. 83–85; Rochette et al. (2014), p. 114. Rochette et al. (2014), pp. 112–115; Wright et al. (2015), pp. 284–287; Scott (2012), pp. 854–856. 73 Rochette et al. (2014), p. 112; Wright et al. (2015), pp. 283–284; Freestone and Bulger (2016), pp. 80–85; Submission by the High Seas Alliance following the Second Session of the Preparatory Committee on the Development of an International Legally Binding Instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction, 22 November 2016, p. 3. 74 Ibid. 75 Ibid. 76 Wright et al. (2015), pp. 284–286; Rochette et al. (2014), pp. 112–116. 77 Wright et al. (2015), pp. 284–286; Rochette et al. (2014), pp. 112–116; Scott (2012), pp. 854–856. 72

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3 What Is at Stake? Regardless of the complexity of the jurisdictional regimes described, it is impossible to isolate what happens in the seabed from what happens in the water column as, due to the ocean ecosystems interlinkage, activities impacting one will, in all certainty, impact the other.78 Consequently, MPAs can only be effective if this interlinkage is kept in mind.79 It is precisely due to the interlinkage of ocean ecosystems and the duality of regimes applicable to these two areas that the conflict may rise. In other words, the exercise of freedom, namely through the establishment of MPAs, in the HS can potentially collide with the exercise of coastal States’ sovereign rights over the OCS. Regional initiatives, as explained above, are no strangers to this duality of frameworks and regimes. As shown by the Charlie-Gibbs Fracture Zone (North) v. Iceland case, the possibility of conflict, in the designation of MPAs in the HS, exists whenever they overlap with the OCS and whenever the OCS States rights to explore and exploit the natural resources of their OCS might be affected.80 Past experiences have shown, however, that whenever willingness of States to engage cooperatively with competent authorities exists, there are cases of success.81 One of such cases is the cooperation between the OSPAR Commission and Portugal for the development of common management strategies for MPAs in the HS lying over the Portuguese proposed OCS.82 Regardless of this example and other regional efforts already described, the result remains being a fragmented and incoherent approach concerning the establishment and management of MPAs in the HS, that results from the three challenges identified in the previous section. The ongoing work on, and the discussions leading to the intergovernmental conference on, the conservation and sustainable use of BBNJ, in particular concerning MPAs in the HS, is attempting precisely to overcome those challenges by providing States with a universally binding mechanism for the establishment and management of MPAs in ABNJ. Such mechanism should finally be able to provide the international community with the capacity, coherence and effectiveness it is lacking on this particular issue.83 Being familiar with the “overlap” between the regimes of the HS and the OCS, what is at stake for OCS States however, is not the need for the mechanism, but how the mechanism will be designed. Meaning that OCS States want to be sure that, 78

Salpin and Germani (2010), p. 178; Mossop (2016), p. 245. Ibid. 80 Ribeiro (2017a), pp. 40–43; Ribeiro (2017b), pp. 756–757; Salpin and Germani (2010), pp. 181–182; Tanaka (2012b), pp. 310–324. 81 Ribeiro (2017a), pp. 40–43; Ribeiro (2017b), pp. 756–757; Salpin and Germani (2010), pp. 181–182; Tanaka (2012b), pp. 310–324; O’Leary et al. (2012), p. 602. 82 Ibid. 83 Wright et al. (2018), pp. 163–165. 79

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when an MPA is established in the HS above their OCS under the new IBLI, the balance between the rights/duties existing in both areas will be properly considered. The “overlap” and conflict however is merely potential as, as previously explained and demonstrated by the practice of regional initiatives, sometimes it is in the OCS State best interest to create an MPA in the HS above its OCS. In other words, the concern is not about the establishment of the MPA itself, but about the protective/restrictive measures that are going to be applied in that MPA and, of course, whether such measures are going to deprive OCS States from exercising a right given to them by UNCLOS.

3.1

Evaluation of the Potential for Conflict

ABNJ represent 60% of the Earth’s oceans.84 Assuming that all the OCS claims (excluding overlapping areas) submitted to the Commission on the Limits of the Continental Shelf are confirmed by its recommendations, the areas in which there is HS above OCS represent approximately 12% of the ABNJ.85 Therefore, the geographical scope of the potential conflict is located within these 12%. In addition to this, the potential conflict will arise only if two conditions are verified. On the one hand, it is necessary that interest in the establishment of an MPA exists only in the HS. Otherwise, if the interest to establish an MPA is shared in the HS and in the OCS, situations such as the OSPAR Commission arrangement with Portugal would be manageable by the establishment of an MPA in both areas and the development of common management strategies between the OCS State and a Regional/International Organization charged with the protection of that part of the HS.86 On the other hand, it is also necessary that the protective measures applicable in the MPAs in HS collide with the exercise of sovereign rights over the OCS. For example, if an MPA in the HS adopts a prohibition on loud marine noise (preventing seismic surveys) or a prohibition on fishing (preventing the harvest of sedentary species).87 Regardless of the mere potentiality of the conflict in question, it is clear and uncontested that two different legal regimes apply to the resources of the water column and the resources of the seabed and that this duality of regimes will need to be dealt with by the new ILBI.88 Therefore, it is also clear that the concern of a

84

Heidar (2017), p. 93; Gjerde et al. (2016), p. 46; Wright et al. (2015), p. 272. Schoolmeester and Baker (2011), p. 28. 86 Ribeiro (2017b), pp. 756–757; Salpin and Germani (2010), pp. 183–184; Tanaka (2012b), pp. 320–322; O’Leary et al. (2012), p. 602; Mossop (2016), pp. 185–186; Scott (2012), p. 556; Gjerde et al. (2016), pp. 52–53. 87 Mossop (2016), p. 245. 88 Mossop (2016), p. 247. 85

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possible interference with the coastal States’ exercise of sovereign rights over the OCS, by the establishment of MPAs in the HS, is legitimate and well founded.89 Currently, there is a general understanding regarding not only the need for a strong and widely agreed upon ILBI, but also that the best way of achieving conservation and sustainable use of BBNJ is through the selection of the criteria and framework for the establishment of a global network of MPAs. Bearing in mind this general understanding, along with the abovementioned concerns, it is crucial at this point to think about ways to pacify the concerns of OCS States without undermining the shared aims of the ILBI on conservation and sustainable use of BBNJ. It is in this spirit that a possible solution, proposed in the next section, is presented.

3.2 3.2.1

The Proposed Solution Previously Proposed Solutions

Irrespective of being a controversial issue, during the discussions of both the WG and the Prep Com, the solutions proposed to accommodate OCS States’ interests so far have been not only scarce, but also far from reassuring. Firstly, it was proposed that a reference should be made in the preambular part of the agreement stating that the agreement will not affect the rights of coastal States over the continental shelf within and beyond 200 nm.90 This proposal was, however, considered to be insufficient as the legal value of the preamble of a treaty remains disputable in International Law.91 Despite this, there seems to be general agreement concerning the fact that, regardless of the value the preamble may hold, such value will never be equal to the value of the main text.92 Thus, OCS States requested for more concrete alternatives that would be able to effectively secure the exercise of their sovereign rights. Secondly, in response to the referred request, many States suggested the inclusion, within the proposals for a possible framework for the process of establishment of MPAs, of the duty to consult coastal States in situations where the proposed MPA lies in an area above their OCS.93 Regardless of the value of a prior-MPA-establishment consultation procedure, the proposed frameworks offered no insight

89

Mossop (2016), p. 247. Morgera et al. (2016a), p. 7; Morgera et al. (2016b), pp. 9–11; Charles E, Chair’s overview of the first session of the Preparatory Committee, 2016, p. 19; Verkuijl (2016), p. 302; Mossop (2016), p. 245. 91 Pazarci (2011), pp. 3–6. 92 Ibid. 93 See the submissions received from the delegations of the European Union, the USA, Monaco and Greenpeace in response to the Chair’s invitation made at the second session of the Prep Com. 90

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regarding what would be the exact weight of the OCS States’ opinion in the final decision of establishing MPAs.94 In addition to this, some States proposed that the final decision on the establishment of MPAs should be made by consensus or, whenever that was not possible, by majority-voting, the latter resulting in the complete disregard for OCS States’ expressed concerns.95 Nevertheless, even if the new ILBI were to endow the opinion of the OCS State with a decisive impact, it is foreseeable that given the chance to do so, or when in doubt regarding the infringement upon their sovereign rights, OCS States will likely reject the creation of an MPA in an area above their OCS. Such an outcome would result in the attribution of a veto power to OCS States. This option would seriously compromise the objectives of the new ILBI as it would lead to having no MPAs above the OCS of States, which would prevent a better conservation and sustainable use of BBNJ. Considering the limitations of the solutions proposed so far, it remains vital to work towards a framework procedure capable of pacifying the referred concerns. This can only be achieved by guaranteeing the effective exercise of the sovereign rights of the coastal State over the OCS, without jeopardising the purpose of the new ILBI. This is particularly important in allowing the discussions regarding the development of a new mechanism for the establishment of a global network of MPAs to move forward as the Conference shall exhaust every effort, in good faith, to reach agreement on substantive issues by consensus.96 The next section will present a possible configuration for such a framework procedure.

3.2.2

Ex Post Opt-Out Mechanism

Bearing in mind the value of the proposed prior-MPA-establishment consultation procedure mentioned above, there is no need to start from scratch as, building upon these frameworks, an alternative method regarding the final decision making is sufficient. On the one hand, deciding on the establishment of MPAs solely by consensus will to a certain extent, result in providing OCS States with a veto power. This would likely lead them to prevent the establishment of any MPA in areas above their respective OCS. Such a choice would, as stated above, prevent the full execution of the objectives of the new ILBI regarding the establishment of a global network of MPAs. On the other hand, making a decision through majority-voting (or qualified majority) would completely disregard OCS States’ expressed concerns and even violate the rights given to them by UNCLOS. Such an outcome would not only be

94

Id. See the submissions received from the delegations of the European Union and Greenpeace in response to the Chair’s invitation made at the second session of the Prep Com. 96 UNGA Resolution 72/249, p. 3. 95

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against the spirit of the new ILBI, but also against UNCLOS itself as UNCLOS requires States to exercise their rights and obligations in a manner consistent with its general principles and objectives.97 All things considered, the ideal decision-making procedure should allow the establishment of all MPAs by consensus while, simultaneously, guaranteeing the exercise of OCS States’ sovereign rights. In other words, there is the need to bestow OCS States with a mechanism that allows them to be part of the consensus needed for the establishment of MPAs without the fear of infringement upon their rights. Due to the abovementioned need, the mechanism proposed in this research is to provide OCS States with an Ex post opting out mechanism. This would be an Ex post mechanism since it would only be exercisable if three conditions are cumulatively met. Firstly, and to respect the principles of Pacta sunt servanda and Pacta tertiis nec nocent nec prosunt,98 it would only be exercisable after said States expressed their consent to be bound by the new ILBI as it will be the legal framework providing for that mechanism. Secondly, it would be exercisable only after the establishment of an MPA above their respective OCS. Finally, it would be exercisable only if the protective measures adopted in the MPA prevent the exercise (or make such exercise excessively onerous) of the OCS State’s rights. In which case, the opt-out would be exercised, not regarding the new ILBI or the MPA, but regarding the specific measure in conflict with the exercise of their rights. The proposed mechanism will allow a consensus to be reached regarding the final decision-making procedure for the establishment of MPAs as OCS States will no longer be worried about a possible infringement of their rights. Moreover, it will enhance the level of protection of the marine environment as the future network of MPAs will be universally opposable. This would be due to OCS States being bound by the MPA regardless of exercising their Ex post opting out right as the latter would only be exercisable with respect to the protective measures that collide with the exercise of their sovereign right. For example, consider an MPA created in an area above the OCS of State B which adopts a prohibitive protective measure regarding the emission of marine noise, plus a parameter of noise in the water column of no more than 50%. If our proposed mechanism was adopted, the OCS State would, after exercising his Ex post opting out right in relation to the prohibitive measure, be able to conduct seismic surveys of the ocean floor as long as the marine noise produced did not exceed the established

97

Art. 237(2), UNCLOS. Arts 26 and 34 of the Vienna Convention on the Law of Treaties; Tanaka (2012b), pp. 315–317; Drankier (2012), pp. 346–347; Merkouris (2010), pp. 77–82; Tladi (2015), p. 667.

98

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50%.99 Conversely, all other States would have to respect the prohibitive protective measure of no marine noise emission as they possess no rights over the OCS. This mechanism aims to maximize the effect, geographical distribution and opposability of a global network of MPAs. Firstly, by guaranteeing the effective enjoyment of given sovereign rights to OCS States. Secondly, by ensuring the acceptance of the desired consensus decision making procedure for the establishment of MPAs. Thirdly, by enhancing the degree of general acceptance of the new ILBI. Finally, and most importantly, by fulfilling in a more effective way the objective of achieving a better conservation and sustainable use of BBNJ. Criticism and fear for the creation of double standards inside an MPA may rise with this proposal. However, one must bear in mind the following: the priority is to establish a global network of MPAs and without this mechanism many MPAs will never be approved, with or without double standards. Furthermore, this proposal allows for cumulative application with other solutions and principles that can be included in other parts of the agreement. In this context, the principles of ecosystem approach, best available science and even, as some scholars have been advocating recently, the creation of a minimum level of protection in the HS can help mitigate these concerns.100 After clarifying the abovementioned, let us take another look at the previous example. In the described situation, the OCS State that choses to exercise his Ex post opting out right would be able to conduct seismic surveys but, in doing so, it would have to respect all the provisions, principles and levels of protection provided for by UNCLOS, by the ILBI and by the MPA itself. All things considered, this is the greatest advantage of this proposal. Providing OCS States with the permanent guarantee to exercise their rights, regardless of the existence of an MPA in the water column above their OCS, while bounding them to all other obligations that will be included in the ILBI.

4 Conclusion The discussions leading to the UNGA’s decision to convene an intergovernmental conference, to develop a new ILBI on conservation and sustainable use of BBNJ, have been shrouded by concerns regarding many issues. One of the most controversial ones being the establishment of HS MPAs in areas above the OCS as they could possibly interfere with the exercise of coastal States’ sovereign rights over them.

99 This mechanism is in line with, and strengthened by, recent proposals advocating for the adoption of a minimum standard/level of environmental protection for BBNJ as such level, if included in the new ILBI, will remain applicable to the OCS States that exercise their Ex post opting out right. See Ribeiro (2017b), pp. 757–759. 100 Ribeiro (2017b), pp. 757–759.

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In an attempt to overcome said concerns, different options have been proposed during the meetings of the Prep Com. However, such options were unable to gather the support needed to allow the discussions to move forward as effective exercise and respect for OCS sovereign rights was not straightforwardly guaranteed by any of them. With the beginning of the proceedings of the Intergovernmental Conference, the momentum to find new solutions, capable of pacifying the referred concerns, has become more evident.101 As such, this research analysed and built upon the already proposed solutions, mainly by upgrading and shielding them from identified weaknesses and undesired results. Consequently, in addition to the decision-making procedure of consensus proposed for the establishment of MPAs, an Ex post opting out mechanism should be made available. The target of this mechanism would be the coastal States that, as future parties to the agreement, will have an MPA above an area of their respective OCS that applies protective measures incompatible with the exercise of their sovereign rights. This proposal guarantees not only that OCS States will always be able to effectively exercise their rights, but also that they will be part of and bound by the created MPA. The previously mentioned mechanism will allow for the unclogging of the negotiations and will serve the purpose of the new ILBI, as it allows for a consensus agreement on a global and universal network of MPAs. Such network will be opposable to all parties of the new ILBI, including the OCS States that make use of the Ex post opting out mechanism as the latter will only be exercised in relation to incompatible measures, and not the ILBI or the MPA themselves.102 It is undeniable that the intergovernmental conference poses a unique opportunity to discuss and create a comprehensive and inclusive approach to the conservation and sustainable use of BBNJ. This will make it possible to fulfil the aspirations of UNCLOS preamble to “promote the peaceful uses of the seas and oceans, the equitable and efficient utilisation of their resources, the conservation of living resources, and the study, protection and preservation of the marine environment”.103 As stated during the second meeting of the Prep Com “all the pieces are aligned for us Earthlings to make headway”,104 it is in this spirit that this mechanism is proposed.

101

Report A/AC.287/2017/PC.4/2, p. 7 and UNGA Resolution 72/249, p. 1. In case States agree to include provisions in the new ILBI calling for a degree of environmental protection equivalent in ABNJ MPAs, as advocated recently by Ribeiro (2017b), p. 759, this mechanism is compatible and allows for cumulative application. 103 Ardron J et al., Advancing Governance of the High Seas, 2013, p. 3; Pew Environment Group, Addressing existing Commitments And designing next steps for Action Conserving marine Biodiversity, 2013, p. 16. 104 Morgera et al. (2016b), p. 20. 102

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References Caron DD, Minas S (2018) Conservation or claim? The motivations for recent marine protected areas. In: Scheiber HN, Oral N, Kwon M-S (eds) Ocean law debates: the 50-year legacy and emerging issues for the years ahead. Nijhoff Brill, Leiden, pp 529–552 Drankier P (2012) Marine protected areas in areas beyond national jurisdiction. Int J Mar Coast Law 27:291–350 Freestone D, Bulger F (2016) The Sargasso Sea Commission: an innovative approach to the conservation of areas beyond national jurisdiction. Ocean Yearb Online 30:80–90 Gjerde KM (2001) Current legal development. Int J Mar Coast Law 16:515–528 Gjerde KM, Reeve LLN, Harden-Davies H et al (2016) Protecting Earth’s last conservation frontier: scientific, management and legal priorities for MPAs beyond national boundaries. Aquat Conserv Mar Freshwat Ecosyst 26:45–60 Heidar T (2004) Legal aspects of continental shelf limits. In: Nordquist MH, Norton Moore J, Heidar TH (eds) Legal and scientific aspects of continental shelf limits. Martinus Nijhoff, Leiden, pp 19–39 Heidar T (2017) Conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction: a third implementing Agreement under the Law of the Sea Convention? In: University for Peace and, O. P. Jindal Global University (eds) Liber amicorum: in honour of a modern renaissance man His Excellency Gudmundur Eiríksson, India, LexisNexis, pp 87–105 Jakobsen IU (2016) Marine protected areas in international law: an Arctic perspective. Brill Nijhoff, Leiden Merkouris P (2010) ‘Third Party’ considerations and ‘Corrective Interpretation’ in the interpretative use of Travaux Préparatoires: – is it Fahrenheit 451 for preparatory work? In: Merkouris P, Elias O, Fitzmaurice M (eds) Treaty interpretation and the Vienna Convention on the law of treaties: 30 years on. Brill Nijhoff, Leiden, pp 75–95 Morgera E, Diz D, Kantai T, Tsioumanis A (2016a) Summary of the second session of the Preparatory Committee on Marine Biodiversity of areas beyond national jurisdiction: 26 August–9 September 2016. Earth Negotiations Bulletin 25 Morgera E, Diz D, Kantai T, Tsioumanis A (2016b) Summary of the first session of the Preparatory Committee on Marine Biodiversity of areas beyond national jurisdiction: 28 March–8 April 2016. Earth Negotiations Bulletin 25 Morgera E, Appleton A, Knatai T, Tsioumanis A (2017a) Summary of the third session of the Preparatory Committee on Marine Biodiversity of areas beyond national jurisdiction: 27 March–7 April 2017. Earth Negotiations Bulletin 25 Morgera E, Appleton A, Knatai T, Tsioumanis A (2017b) Summary of the fourth session of the Preparatory Committee on Marine Biodiversity of areas beyond national jurisdiction: 10–21 July 2017. Earth Negotiations Bulletin 25 Mossop J (2016) The continental shelf beyond 200 nautical miles: rights and responsibilities. Oxford University Press, Oxford O’Leary BC, Brown RL, Johnson DE et al (2012) The first network of marine protected areas (MPAs) in the high seas: the process, the challenges and where next. Mar Policy 36:598–605 Pazarci H (2011) Preamble Convention 1969. In: Corten O, Klien P (eds) The Vienna Conventions on the law of treaties: a commentary. Oxford University Press, Oxford, pp 659–687 Ribeiro MC (2014) 30 anos da assinatura da convenção das Nações Unidas sobre o direito do mar: protecção do ambiente e o futuro do direito do mar. Coimbra Editora, Coimbra Ribeiro MC (2017a) A Protecção da Biodiversidade da Plataforma Continental além das 200 milhas náuticas em Sede de Poderes e Deveres do Estado Costeiro: estado da arte e antevisão de uma evolução possível. In: García Pérez R, Ferreira Rodrigues T, Neves Coelho P (eds) A extensão das plataformas continentais: Portugal e Espanha, perspetivas e realidades. Fronteira do Caos, Porto, pp 159–208

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Ribeiro MC (2017b) South Atlantic perspectives on the future international legally binding instrument under the losc on conservation and sustainable use of BBNJ. Int J Mar Coast Law 32(4):733–764 Rochette J, Unger S, Herr D et al (2014) The regional approach to the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. Mar Policy 49:109–117 Salpin C, Germani V (2010) Marine protected areas beyond areas of national jurisdiction: what’s mine is mine and what you think is yours is also mine. Rev Eur Community Int Environ Law 19:174–184 Scanlon Z (2018) The art of ‘not undermining’: possibilities within existing architecture to improve environmental protections in areas beyond national jurisdiction. ICES J Mar Sci 75(1):405–416 Schoolmeester T, Baker E (2011) Continental Shelf - The Last Maritime Zone - Update (Status in September 2010). GRID-Arendal Scott KN (2012) Conservation on the high seas: developing the concept of the high seas marine protected areas. Int J Mar Coast Law 27:849–857 Tanaka Y (2004) Zonal and integrated management approaches to ocean governance: reflections on a dual approach in international law of the sea. Int J Mar Coast Law 19:483–514 Tanaka Y (2008) A dual approach to ocean governance: the cases of zonal and integrated management in international law of the sea. Aldershot Ashgate, Aldershot Tanaka Y (2011) The changing approaches to conservation of marine living resources in international law. Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 71:291–330 Tanaka Y (2012a) The international law of the sea. Cambridge University Press, Cambridge Tanaka Y (2012b) Reflections on high seas marine protected areas: a comparative analysis of the Mediterranean and the North-East Atlantic Models. Nord J Int Law 81:295–326 Tladi D (2015) The proposed implementing agreement: options for coherence and consistency in the establishment of protected areas beyond national jurisdiction. Int J Mar Coast Law 30 (4):654–673 Verkuijl C (2016) UN oceans forums, developments and negotiations progress. Environ Policy Law 46:302–309 Wright G, Rochette J, Druel E (2015) Marine protected areas in areas beyond national jurisdiction. In: Rayfuse R (ed) Research handbook on international marine environmental law. Edward Elgar Publishing, Cheltenham, pp 272–290 Wright G, Rochette J, Gjerde K, Lisa L (2018) Protect the neglected half of our blue planet. Nature Wolf S, Bischoff J (2013) Marine protected areas. Max Planck Encyclopedia Public Int Law.

Documents BBNJ Preparatory Committee Repors: A/AC.287/2017/PC.4/2 BBNJ Preparatory Committee: Submission by the High Seas Alliance following the Second Session of the Preparatory Committee on the Development of an International Legally Binding Instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction, 22 November 2016 BBNJ WG Letter dated 16 March 2010 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, A/65/68, 17 March 2010 BBNJ WG Letter dated 30 June 2011 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, A/66/119, 30 June 2011 BBNJ WG Reports: A/69/780; A/66/119 Convention on Biological Diversity, COP Decision VIII/24, Protected Area, UNEP/CBD/COP/ DEC/VIII/24, 15 June 2006 United Nations General Assembly Resolutions: 59/24; 62/292; 72/249

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Inês Aguiar Branco Ocean Policy Analyst with the Sustainable Ocean Initiative, part of World Resources Institute (2019). Worked several years as a Technical Expert on Ocean Governance for the Portuguese Government (2015–2019). Nippon Fellow at the International Tribunal for the Law of the Sea (2016) and a Guest Fellow at the Max Planck Institute for Comparative Public Law and International Law (2016). Earlier in her professional career was an Intern at the International Maritime Organization (2013), the European Commission (2014) and the United Nations Division for Oceans Affairs and the Law of the Sea (2015).

Chapter 23

North East Atlantic Marine Protected Areas Beyond National Jurisdiction. Geographical and Material Scope Marta Sobrido-Prieto

Abstract An intergovernmental conference is working to prepare the text of an international legally binding instrument on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (ABNJs). One topic is areabased management tools, including marine protected areas (MPAs). Pending the outcome of the conference, and as the future treaty is not to undermine existing relevant legal instruments, frameworks or bodies, this chapter focuses on the main features of the current experience in the North East Atlantic from a jurisdictional point of view. MPAs mainly cover areas under national jurisdiction, but also ABNJs in the Antarctic and North East Atlantic, both in the context of international organisations/agreements. Given the special status of Antarctica, the North East Atlantic experience provides a better reference. Some of the MPAs designated under the Convention for the Protection of the Marine Environment of the NorthEast Atlantic (OSPAR Convention) cover the deep seabed. OSPAR collaborates with other relevant international organisations to enhance the overall effectiveness of MPAs. And certain OSPAR coastal states are very attuned to any opportunity to demand a special position in relation to the ABNJs located next to their territory.

This research was conducted within the framework of the project “Proceso de negociación internacional para la conservación de la biodiversidad marina en las aguas más allá de la jurisdicción de los Estados”, funded by the Spanish Government (DER2016-78979-R), and the Mobility Programme “Iacobus V”, funded by the European Grouping of Territorial Cooperation Galicia-Norte Portugal. The author would like to thank Professor Marta Chantal Ribeiro for all her help and assistance during the author’s stay at the Faculty of Law of the Universidade do Porto (Portugal). M. Sobrido-Prieto (*) University of A Coruña, Faculty of Law, A Coruña, Spain e-mail: [email protected] © Springer Nature Switzerland AG 2020 M. C. Ribeiro et al. (eds.), Global Challenges and the Law of the Sea, https://doi.org/10.1007/978-3-030-42671-2_23

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1 Introduction Biological diversity is extremely valuable, both in itself and for humanity.1 From an anthropocentric perspective, its value stems from so-called ecosystem services, which are often grouped into two categories: the ecological services that make life on this planet possible (regulation of air quality, etc.) and the socio-economic services that are a source of food and raw materials or provide well-being (recreational activities, cultural identity, spiritual well-being, etc.).2 However, despite its enormous value, biological diversity is threatened. In the case of marine biodiversity, the threat comes from multiple factors, such as abusive fishing practices (overfishing and destructive fishing practices), alien invasive species (non-native species that pose a threat to ecosystems, habitats or species), marine pollution (from a number of marine and land-based sources), climate change (including ocean acidification) and, paradoxically, some measures to fight climate change (geoengineering measures such as ocean fertilisation).3 Measures are required to avoid—and, where appropriate, repair—damage to the marine environment. In areas under national jurisdiction, this task falls to the coastal state, although that does not prevent it from assuming international commitments, such as the Convention on Biological Diversity. In areas beyond national jurisdiction (hereinafter, ABNJs) the strategy must necessarily be collective to be effective. But the fact is ABNJs are not properly protected, which is no minor matter. For years, numerous voices have warned that the conservation and sustainable use of such marine areas are some of the most difficult and important challenges facing the international community today.4 After years of work,5 in 2015 the United Nations General Assembly decided to develop an international legally binding instrument under the United Nations Convention on the Law of the Sea (hereinafter, UNCLOS) on the conservation and sustainable use of marine biological diversity of ABNJs.6 It established a preparatory committee,7 and then, in December 2017, it convened an intergovernmental conference to elaborate the text of an international legally binding instrument.8 The

For the purposes of this chapter, “biological diversity” and “ecosystem” shall be used as defined by the Convention on Biological Diversity. On the value of biological diversity, see the Preamble. 2 For more information on this classification, specifically with regard to marine biodiversity, see: Ribeiro (2013), pp. 83–86. 3 A/RES/66/288, paragraphs 163–168. 4 E.g. Gjerde et al. (2016), p. 46. 5 The General Assembly established an Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond national jurisdiction (A/RES/59/24). This group worked from 2006 to 2015 (69 sessions). 6 A/RES/69/292. 7 The preparatory committee held two sessions each in 2016 and 2017; at its last session adopted its report to the General Assembly. 8 A/RES/72/249. 1

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Conference is planned to have four sessions. The first was convened in September 2018 and the fourth was programmed to take place in 2020. The Conference addresses four topics, together and as a whole: marine genetic resources9; measures such as area-based management tools, including marine protected areas (hereinafter, MPAs); environmental impact assessments; and capacity-building and the transfer of marine technology. This chapter will focus on MPAs understood as a “geographically defined area which is designated or regulated and managed to achieve specific conservation objectives.”10 Area-based management tools, including MPAs, have been the subject of detailed discussions and proposals since the first meeting.11 Pending the outcome of the intergovernmental conference, this chapter will focus on the main features of the current experience. Specifically, it will examine the possible scope of MPAs beyond national jurisdiction according to the existing international legal framework. This is a key reference given that the future UNCLOS implementing agreement should be fully consistent with UNCLOS and should not undermine existing relevant legal instruments, frameworks or bodies.12 The first MPA beyond national jurisdiction was established in 2009. There are currently nine, twelve including marine areas protected only by the state that has made a submission to the United Nations Commission on the Limits of the Continental Shelf for an extended continental shelf (hereinafter, CS) in that area.13 In any case, so far the reference frameworks are international organisations/agreements. On the one hand, there is the Convention on the Conservation of Antarctic Marine Living Resources (hereinafter, CAMLR Convention) and its Commission (hereinafter, CCAMLR), which has recognised two MPAs beyond national jurisdiction.14 On the other hand, there is the Convention for the Protection of the Marine Environment of the North-East Atlantic (hereinafter, OSPAR Convention) and its Commission (hereinafter, OSPAR Commission). There are seven MPAs beyond national jurisdiction collectively protected by all OSPAR contracting parties15 and Art. 2, Convention on Biological Diversity: “(. . .) ‘Genetic material’ means any material of plant, animal, microbial or other origin containing functional units of heredity. ‘Genetic resources’ means genetic material of actual or potential value”. 10 For the purposes of this chapter, the definition of “protected area” given in the Convention on Biological Diversity (Art. 2) will be used. On the definitions of “MPA”, see, e.g.: Briggs et al. (2018), pp. 9–10; Ribeiro (2014), pp. 185–191; Jakobsen (2016), pp. 6–9; Wolf and Bischoff (2013). 11 Statement by the President of the conference at the closing of the first session (doc A/CONF.232/ 2018/7, 20 September 2018), pp. 3–4, 10–15. 12 A/RES/72/249, paragraphs 6–7. 13 Art. 76.1 UNCLOS. An extended CS is when the outer edge of the continental margin is beyond 200 nautical miles. 14 The South Orkney Islands Southern Shelf MPA, conservation measure 91-03 (2009); and the Ross Sea Region MPA, conservation measure 91-05 (2016). See also: “General framework for the establishment of CCAMLR Marine Protected Areas”, conservation measure 91-04 (2011). 15 Six MPAs beyond national jurisdiction were established in 2010: Milne Seamount Complex MPA (OSPAR Decision 2010/1); Charlie-Gibbs South Marine Protected Area (OSPAR Decision 9

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three other OSPAR MPAs beyond national jurisdiction protected only by the contracting party claiming the area.16 Both processes, i.e. in the CCAMLR and the OSPAR Commission, are complex and relevant in different ways.17 Given the special status of Antarctica as a space of collective environmental management where territorial claims have remained unresolved and frozen for decades,18 CCAMLR is not a standard reference to observe; especially considering the increasing importance of the “relevant coastal states” in the debate about marine protection in ABNJs, in particular when those states have—or claim—extended CSs. On the contrary, the North East Atlantic experience provides a good reference. This chapter will first address the geographic scope of MPAs beyond national jurisdiction (Sect. 2), which is controversial in relation to the seabed, in terms of both jurisdiction over sedentary species and the scope of the recognition of the Area and its resources as common heritage of mankind. Second, it will analyse the role played by state jurisdiction (Sect. 3); in the case of the coastal states, because of their proximity, and in all others, because of their status as a flag state.

2 Marine Areas Beyond National Jurisdiction Classically, there were two marine areas: the belt of sea adjacent to the land territory that was part of the national territory and, therefore, subject to national sovereignty; and the high seas, governed by the principle of freedom. Over the twentieth century, the high seas were reduced in two ways.19 First, they were reduced in favour of the coastal states, not only because their territory increased as a consequence of the greater breadth of the territorial sea, but also, and mainly, because of the recognition of certain competences and jurisdiction in adjacent marine spaces: the contiguous

2010/2); Altair Seamount High Seas MPA (OSPAR Decision 2010/3); Antialtair Seamount High Seas MPA (OSPAR Decision 2010/4); Josephine Seamount High Seas MPA (OSPAR Decision 2010/5); and Mid-Atlantic Ridge North of the Azores High Seas MPA (OSPAR Decision 2010/6). One MPA beyond national jurisdiction was established in 2012: Charlie-Gibbs North High Seas MPA (OSPAR Decision 2012/1). 16 Rainbow Hydrothermal Vent Field MPA (Portugal, 2006); Hatton-Rockall Basin (United Kingdom, 2011); Hatton Bank SAC (United Kingdom, 2012). 17 “The Southern Ocean MPAs were adopted by Members of the (. . .) (CCAMLR) in a complex, slow and challenging process. The North-East Atlantic MPAs were established under the OSPAR Convention and although the MPA network was established swiftly, doubts remain about whether it was a successful institutional development for the protection of marine biodiversity or just a network of ‘paper parks’” (Smith and Jabour 2018, p. 417). 18 The Antarctic Treaty was signed in 1959 and entered into force in 1961. The number of Parties to the Treaty is now 54. According to Art. IV, the Treaty freezes any territorial claim. 19 Regarding this development, see e.g. Jiménez Piernas (2013).

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zone, the exclusive economic zone (hereinafter, EEZ), and the CS.20 Second, they were reduced by the regulation of mining activity in the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction, the so-called Area, and the recognition of the Area and its resources as common heritage of mankind.21 Thus, the situation today is not the one that has always existed, and it may not correspond to the future situation either. Currently, as set out in UNCLOS,22 international law recognises two legal regimes in ABNJs: the high seas regime and the Area regime. The overlap between the two has been highlighted by some authors and refuted by others.23 The wording of UNCLOS certainly does pose challenges, as it refers to both the high seas and the Area not only as “legal regimes” but also as “geographic spaces” (through the high seas, on the high seas, from the high seas, activities in the Area, research in the Area, etc.).24 This double meaning, i.e., the use of the same term to refer to a legal regime and to its geographic scope, is also the case with regard to some areas under national jurisdiction where the geographical space is not subject to a single legal regime (the contiguous zone and the EEZ), but in that case the framework is not discussed.25 The situation is different with the Area and the high seas. It is clear that the high seas regime is not a substitute for the Area regime, but doubts arise regarding the application of the high seas regime to the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction (hereinafter, deep seabed) in a suppletive capacity, i.e. as a subsidiary source of law for issues not

20 Contiguous zone (Art. 33 UNCLOS), EEZ (Arts 55–75 UNCLOS) and CS (Arts 76–85 UNCLOS). 21 The Area (Arts 133–191 UNCLOS). 22 UNCLOS is not a universal treaty. However, since a large number of its provisions are customary law, it is a universal reference. See e.g. Casado Raigón (2014) and Treves (2008). 23 Art. 86 UNCLOS: “The provisions of this Part [Part VII: High seas] apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State (. . .)”. Based on Art. 86 UNCLOS, Molenaar and Oude Elferink (2009, p. 7) affirm that these two regimes “overlap spatially” because “the high seas regime is not only applicable to the water column, but also to the seabed and subsoil”. In contrast, Tladi (2014, pp. 118–119) states: “While a literal reading of this provision defining the high seas [Art. 86] might suggest that the high seas include the Area, the Area is governed by a different part of the convention, namely Part XI. The Area, defined as ‘the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction,’ is thus not covered by the provision of UNCLOS relating to the high seas.” 24 On the high seas, see, e.g.: Art. 36 (a route through the high seas); Art. 94 (navigation on the high seas); Art. 109 (unauthorised broadcasting from the high seas); Art. 116 (right to fish on the high seas); etc. Regarding the Area, several graphical expressions are used. See, e.g.: Art. 137 (“legal status of the Area and its resources”); Art. 147 (“activities in the Area and in the marine environment”); Art. 141 (use of the Area); Art. 147 (activities in the Area); Art. 256 (research in the Area); etc. 25 On the one hand, there is the overlap between the contiguous zone (Art. 33 UNCLOS) and the EEZ; on the other, there is a specific reference of the EEZ regime to the high seas regime (Art. 58 UNCLOS). Only the “contiguous zone” is referred to as a geographical space in relation to the competences of control granted to the state under Art. 33 UNCLOS.

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regulated by the Area regime. If so, would the recognition of the Area as common heritage of mankind prevent/limit that suppletive application? The application of one regime (freedom of the high seas) or the other (the Area as common heritage of mankind) has been hotly debated in relation to the marine genetic resources, of growing scientific and commercial interest, located in both the deep seabed and the water column. Under the current legal framework, the discussion concerning the regime applicable to marine genetic resources has fundamentally revolved around two closely related issues: the sedentary species in ABNJs (Sect. 2.1) and their recognition as common heritage of mankind (Sect. 2.2). Currently, the debate is essentially political (Sect. 2.3). The North East Atlantic experience shows different models with respect to the environmental protection of the deep seabed (Sect. 2.4).

2.1

Sedentary Species in ABNJs

Sedentary species are defined in UNCLOS when referring to the regime of the CS as “organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil” (Art. 77.4). For years, some authors have noted that this original concept is about fisheries (sedentary fisheries) and is insufficient.26 An important legal issue concerning sedentary species in ABNJs is whether they belong to the water column or to the deep seabed. This gives rise to two considerations. The first is the possibility of using the same scheme that is applied to areas under national jurisdiction. In marine areas beyond the national territory but under national jurisdiction, a different regime is explicitly foreseen for the living resources of the water column (EEZ) and the floor and subsoil (CS). In contrast, no explicit reference is made to sedentary species in ABNJs, whether in the high seas (in contrast to the EEZ, which explicitly excludes them) or in the Area regime (in contrast to the CS, which explicitly includes them).27 Hence, one possibility could be to use, by analogy, the same scheme used for areas under national jurisdiction (EEZs and CSs) for the ABNJs (high seas and the Area). Since the column of water overlying the CS is not always the EEZ but rather can be the high seas when there is an extended CS, the legal exclusion of the sedentary species from the column of water not only under national jurisdiction (EEZ) but also beyond national jurisdiction (high seas) would simplify the legal framework.

Kojima (2008) paragraph 5: “The notion of sedentary fisheries developed under the continental shelf regime may require reconsideration in light of new situations, for instance the emergence of the need to protect marine biological diversity and marine genetic resources”. A new approach is currently being discussed in the intergovernmental conference. 27 Arts 68 (EEZ) and 77.4 (CS) UNCLOS. 26

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The second consideration has to do with the management of sedentary species by regional fisheries management organisations/agreements (hereinafter, RFMO/As). Since sedentary species in ABNJs are considered by some RFMOs a fishing resource that they can manage, should these RFMOs be understood to manage living resources in any ABNJ (water column and deep seabed)? Or should RFMOs be understood to consider sedentary species to be part of the water column? Regardless of the response, or even if there is no answer, RFMOs cover sedentary species only to the extent that these resources are located in ABNJs. They thus do not pose a threat to national jurisdiction over the CS. However, whilst some RFMOs recognise this explicitly (e.g. the Northwest Atlantic Fisheries Organization),28 the lack of such a clarification by the North East Atlantic Fisheries Commission (hereinafter, NEAFC) provoked controversy.29 We are referring to the Juras Vilkas case, in which Norwegian Courts had to decide about harvesting of snow crabs on the extended Norwegian CS in the Loophole. Since the Loophole is a high seas pocket included in the NEAFC regulatory area, did the national restriction on conducting fishery operations for snow crabs within the Norwegian extended CS in the Loophole infringe Norway’s international obligations under the NEAFC Convention? The EU fishing industry supported the argument in favour of the NEAFC’s jurisdiction,30 but ultimately this argument did not prosper. Given that no one may explore a CS or exploit its natural resources without the express consent of the coastal state holder of the rights over that CS,31 the point was to clarify whether the fact of being part of an RFMO with competence over sedentary species could be considered “express consent” for these purposes. Norwegian courts ruled out this interpretation,32 especially given that the NEAFC can also give advice concerning

28

Art. 1, Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries. The Convention on Future Multilateral Cooperation in the North-East Atlantic Fisheries (hereinafter NEAFC Convention), in force since November 1982. Considering that sedentary species are harvested or affected by fisheries, the Contracting Parties to the NEAFC Convention decided to include those species in the scope of the NEAFC Convention. To this end, they amended the NEAFC Convention on 11 August 2006 (on that amendment and the reasons for it, see Recitals 5–6 of Council Decision 2009/550/EC, OJ L 184, 16.7.2009, pp. 12–15). The amendment is in force since 2013. Thus, today, Art. 1 NEAFC Convention provides: “For the purpose of this Convention the following definitions apply: (. . .) b) ‘Fishery resources’ means resources of fish, molluscs, crustaceans and including sedentary species (. . .)”. 30 Europêche (2017). 31 Art. 77.2 UNCLOS. 32 On 24 January 2017, the District Court considered that the Norwegian Regulation was contrary to Norway’s obligations under the NEAFC Convention. For a critical comment, see: Dahl and Johansen (2017). However, on 28 June 2017, the Court of Appeal issued a judgment stating that the District Court’s judgment was based on an incorrect application of the law because the NEAFC Convention does not restrict the rights granted to the States Party under UNCLOS. Finally, on 29 November 2017, the Supreme Court dismissed the appeal against the Court of Appeal’s judgment. 29

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fisheries conducted within an area under the jurisdiction of a contracting party if the contracting party in question so requests.33 A different issue concerning sedentary species in ABNJs is the regulation of activities that take place in the water column beyond national jurisdiction (high seas) and can harm sedentary species. Of particular interest are bottom fisheries34 that impact vulnerable marine ecosystems.35 It corresponds to RFMO/As to close high seas areas to bottom fisheries to protect vulnerable marine ecosystems,36 whether these vulnerable marine ecosystems are located under national jurisdiction (extended CSs) or beyond (deep seabed). However, this does not prevent tensions from arising with the affected coastal state.37 As will be outlined below, this occurs in the North East Atlantic.

2.2

Recognition of the Area and Its Resources as Common Heritage of Mankind

According to UNCLOS, “The Area and its resources are the common heritage of mankind.”38 In this regard, is the Area synonymous with the deep seabed?

33 At the time of the amendment of the NEAFC Convention, Molenaar (2007, p. 125) stated that “As regards the new NEAFC Convention, the term ‘jurisdiction’ replaces the term ‘fisheries jurisdiction’ in Arts 5 and 6. This means that NEAFC will only regulate sedentary species on coastal States’ outer continental shelves if these coastal States so request.” 34 According to the definition used by NEAFC, “bottom fishing activities means the use of fishing gear that is likely to contact the seafloor during the normal course of fishing operations”. See Article 2.a) of the Recommendation on the protection of vulnerable marine ecosystems in the NEAFC Regulatory Area (NEAFC Recommendation 19:2014, as amended by Recommendations 09:2015 and 10:2018). 35 NEAFC refers to FAO. For NEAFC, “vulnerable marine ecosystems, hereafter VMEs, has the same meaning and characteristics as those contained in paragraphs 42 and 43 of the FAO International Guidelines for the Management of Deep-Sea Fisheries in the High Seas” (Article 2. g), NEAFC Recommendation 19:2014). And according to the cited paragraphs of the FAO Guidelines: “42. A marine ecosystem should be classified as vulnerable based on the characteristics that it possesses. The following list of characteristics should be used as criteria in the identification of VMEs. i. Uniqueness or rarity (. . .). ii. Functional significance of the habitat (. . .). iii. Fragility (. . .). iv. Life-history traits of component species that make recovery difficult (. . .). v. Structural complexity (. . .). Examples of potentially vulnerable species groups, communities and habitats, as well as features that potentially support them are contained in the Annex. 43. These criteria should be adapted and additional criteria should be developed as experience and knowledge accumulate, or to address particular local or regional needs” (FAO 2008). 36 On the role of RFMOs in protecting vulnerable marine ecosystems through bottom fisheries closures in ABNJs, see: Wright et al. (2015). 37 Takei (2013), p. 197. 38 Art. 136 UNCLOS.

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If the answer is yes, then the existing regime for the Area, limited to mining resources, would be incomplete.39 Any suppletive application (as might be the case with the high seas regime) and any subsequent development (such as the future UNCLOS implementing agreement) would have to take this recognition as common heritage of mankind into account.40 And if, in addition, the sedentary species in the ABNJs were considered part of the deep seabed instead of the water column (the debate discussed in the previous section), they would also be common heritage of mankind.41 All this, in turn, raises a number of issues, such as the compatibility between the high seas and common heritage of mankind, which has been addressed both in the literature and politically.42 This would be relevant in case of a suppletive application of the high seas regime; however, it has also arisen in proposals to recognise the high seas as common heritage of mankind.43 On the other hand, would the eventual consideration of sedentary species in the ABNJ as common heritage of mankind be compatible with the fact that RFMO/As are the ones responsible for managing sedentary species in ABNJs? These and others specific questions bring us to the fundamental question of what common heritage of mankind means.44 What else does it mean, in addition to non-appropriation, which, on the other hand, also applies in the high sea itself, although not to its resources?45 Furthermore, if the Area were considered to be perfectly synonymous with the deep seabed, the current Area regulation would also be incomplete with regard to the institutional arrangement. Under the current framework, the application of the Area regime to the marine genetic resources of the deep seabed would fall to the International Seabed Authority, as the responsible organisation, which would require

39 According to that interpretation, Art. 133 UNCLOS would contain an instrumental and not definitive definition of the resources of the Area, i.e. a definition for the sole effect of the only regime currently established in the deep seabed, which is the mining regime. 40 Art. 311.6 UNCLOS: “States Parties agree that there shall be no amendments to the basic principle relating to the common heritage of mankind set forth in Art. 136 and that they shall not be party to any agreement in derogation thereof.” 41 In contrast to this possibility, Franckx (2007, p. 472), e.g., states that “the ‘common heritage of mankind’ principle applicable in the ‘area’ does not concern living resources, but only mineral resources”. 42 In the literature, see, e.g., Ridings (2018). Politically, see the following footnote. 43 In the political debate, guided by a practical strategy, some have defended their compatibility. As Tladi (2014, pp. 122–124) points out, in the preparatory committee, developing states firmly defended the common heritage of mankind principle, albeit with different approaches, ranging from its application limited to the deep seabed (e.g. Costa Rica) to its application as a principle that should govern the biodiversity of all ABNJs (e.g. Thailand, Trinidad and Tobago) or even the assertion that the freedom of the high seas and the common heritage of mankind principles “are complementary and harmonious” (Mexico). 44 The scope, content and legal status of the common heritage of mankind remain disputed. On this debate in general, and with regard to the elements of common heritage principle in particular, see, e.g.: Noyes (2012, pp. 450–454). 45 Art. 89 UNCLOS.

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important institutional changes.46 However, would adapting and supplementing the Area regulation be enough to include marine genetic resources located in ABNJs in that regime? It is a complex issue. For example, some authors highlight the advisability of a comprehensive regime for mineral and marine genetic resources with a symbiotic relationship, such as in hydrothermal vents.47 Other authors point out drawbacks related to their exploitation.48 In contrast, if the answer is no, that is, if the Area is not considered synonymous with the deep seabed, then the latter would not be common heritage of mankind under the current regulation. This hypothesis, which distinguishes between the Area and the deep seabed, does not so much match the UNCLOS definition of the Area as the definition of the Area’s resources;49 and the existing regime, which is limited to mining resources, should not be considered as incomplete. A suppletive application of the high seas regime in the deep seabed would have more room for action, as it would not be limited by the recognition of the deep seabed as common heritage of mankind. And the framework for any future treaty could be the same in relation to all the living resources located in ABNJs, that is, in both the deep seabed and the high seas.

2.3

Political Debate

Beyond the doctrinal debate, the discussion on the regime for the marine genetic resources of the deep seabed is fundamentally political. It is one of the most important issues to be dealt with at the intergovernmental conference.50 The future treaty is unlikely to place sedentary species within the current framework, whether as Area resources, as deep seabed resources subject to the high seas regime, or even as resources pertaining to the high seas water column. Instead, it will

Art. 157.1 UNCLOS: “1. The Authority is the organization through which States Parties shall, in accordance with this Part, organize and control activities in the Area, particularly with a view to administering the resources of the Area.” Treves (2010, p. 17) emphasizes, amongst other things, that the composition of the Council—a key body of the International Seabed Authority—has been shaped by taking into account the polymetallic nodule industry. 47 Salamanca Aguado (2006), pp. 1074–1075. 48 Art. 143.1 UNCLOS provides: “Marine scientific research in the Area shall be carried out exclusively for peaceful purposes and for the benefit of mankind as a whole (. . .)”. Therefore, if bioprospecting is considered a marine scientific activity in the Area, it should be done for the benefit of humanity. Conde Pérez (2016, p. 259) points out that the regime provided for in this area— dissemination of results . . .—clashes with the objective of any bioprospecting project, oriented towards commercialisation and concerned with protecting intellectual property. 49 Art. 1 UNCLOS: “1. For the purposes of this Convention: (1) “Area” means the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction”. Art. 133 UNCLOS: “For the purposes of this Part [Part XI: The Area]: (a) “resources” means all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules; (. . .)”. 50 See, e.g.: Sánchez Ramos (2017). 46

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most likely establish a new regime: free access but with benefit sharing51 and/or a common concern of humankind,52 insofar as it is endowed with any content;53 or other new, as yet unformulated proposals. This, in turn, raises the question of this new option’s compatibility with the current framework.54

2.4

North East Atlantic Seabed

With regard to MPAs beyond national jurisdiction located in the North East Atlantic, so far there are three different situations. First, there are two OSPAR MPAs collectively protected in their entirety (“from top to bottom”, i.e., both the deep seabed and the water column) by all OSPAR contracting parties.55 Second, there are five OSPAR MPAs encompassing only the water column because the status of the seabed and subsoil is pending decision by the Commission on the Limits of the CS. In four of these MPAs, the OSPAR contracting party claiming the area (Portugal) has expressed the intention to assume the responsibility for taking measures to protect the seabed and subsoil within these areas.56 In the fifth, the OSPAR contracting party claiming the area (Iceland) has not assumed any responsibility.57 Finally, there are three MPAs covering only the seabed and subsoil; these areas are OSPAR MPAs, although they are not protected collectively but rather by the

51 It remains to be seen what will happen in the intergovernmental conference, but as Tladi (2014, pp. 122–123) has pointed out, there seem to be three positions regarding the regime that should apply to marine genetic resources of the deep seabed: freedom of the high seas (most notably the United States, Canada, Japan and Russia); common heritage of mankind of the Area (the Group of 77 and China); and options for benefit sharing (practical approach initially raised by the EU). That author points out that, although the developing states continue to defend their initial position (common heritage of mankind) formally, it seems that many of them would be willing to accept the intermediate option (benefit sharing). 52 Bowling et al. (2016). 53 The debate over the legal content of the notion “common concern of humankind” has, in some cases, led to the avoidance of its use in favour of simply referring to the concern of the international community. See the International Law Commission (2018, pp. 200–201) commentaries to the fourth preambular paragraph. 54 For example, Hubert and Craik (2018, p. 2) point out that the future treaty “might include significant benefit sharing elements that could be viewed by some as inconsistent with the basic rule of common access to high seas resources embodied in other marine agreements”. 55 Charlie-Gibbs South MPA; Milne Seamount Complex MPA. 56 The seabed and subsoil are not an OSPAR MPA; the MPA actually encompasses the column of water: Mid-Atlantic Ridge North of the Azores Highs Seas MPA; Altair Seamount High Seas MPA; Antialtair Seamount High Seas MPA; Josephine Seamount Complex Highs Seas MPA. OSPAR Commission (2019), p. 18. 57 The seabed and the subsoil remain unprotected, but the water column is protected collectively by all OSPAR contracting parties as an MPA: Charlie-Gibbs North High Seas MPA. Ibid.

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contracting party who made the submission to the Commission on the Limits of the CS (Portugal and the United Kingdom).58 The “from top to bottom” model does not support the thesis of the Area as perfectly synonymous with the deep seabed.

3 Jurisdiction of States For the purposes of this chapter, it seems appropriate to address two considerations about states. The first is related to their proximity to the ABNJ (Sect. 3.1) and claims made on that basis (Sect. 3.2). The second has to do with the jurisdiction of the states in the ABNJ (Sect. 3.3), and, hence, the role of certain international organisations (Sect. 3.4).

3.1

Proximity Versus Adjacency

International law identifies the territory of a state as the space where the state exercises its territorial sovereignty.59 UNCLOS clearly states which marine areas fall under the sovereignty of the coastal state.60 In the marine areas adjacent to its territory (EEZ, CS), the coastal state exercises certain, clearly delimited competences and jurisdiction. In reality, these spaces beyond national jurisdiction are often identified as part of the state, and not just colloquially or at the political level or with regard to coastal states’ positions vis-à-vis third parties. States often use a functional notion of “territory” to facilitate the exercise of their jurisdiction, a notion that encompasses not only the territory per se but also the other areas under national jurisdiction. One example is the European Union.61 For the purposes of the application of European Union law, the reference to the “territory of the Member States” includes the EEZ and the CS. However, the use of this functional notion does not change the legal framework: the European Union cannot exercise competences in these spaces that have not been recognised as pertaining to coastal states under UNCLOS. The

58 Rainbow Hydrothermal Vent Field (Portugal); Hatton Bank SAC (United Kingdom); HattonRockall Basin (United Kingdom). Ibid. 59 On the territory of the state, see e.g. Barberis (2001). 60 UNCLOS distinguishes between “territory” and “territorial sea” in Art. 33, 79 and 303. However, the wording of Art. 2 clears up any doubts: “1. The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. 2. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil. (. . .)”. 61 See, e.g.: González Vega (2013) and Quindimil López (2014).

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European Union’s external maritime borders are the outer limit of the European Union Member States’ territorial sea. This distinction between marine areas that are part of a state and those that are not but are under its jurisdiction is not irrelevant. Indeed, that is Norway’s argument for not allowing the inclusion of its EEZ and its CS as part of the European Economic Area.62 In contrast, the EEZs and CSs of the European Union Member States are considered to be part of the European Economic Area due to the functional use that the European Union makes of the term “territory”.63 The OSPAR Convention, which is the framework for the establishment of MPAs beyond national jurisdiction in the North East Atlantic, has 16 contracting parties; all of them—except Switzerland—are part of the European Economic Area. The environment is covered by Annex XX of the European Economic Area Agreement. Very often64 the marine areas adjacent to national territory are, in turn, adjacent to ABNJs: waters under national jurisdiction (EEZ) adjacent to those of the high seas, and the seabed and subsoil under national jurisdiction (CS) adjacent to the deep seabed. In addition, this horizontal adjacency is sometimes accentuated vertically. This is the case of extended CSs, in which the seabed and subsoil are under national jurisdiction whilst the superjacent waters are high seas. Therefore, the state’s territory is close to the ABNJ but not adjacent to it. It is the EEZ and CS that, where applicable, are adjacent to the ABNJ.

3.2

Claims Based on Proximity-Adjacency

Certain coastal states claim they deserve a reinforced position in the ABNJs adjacent to the areas under their jurisdiction. This “creeping jurisdiction” is embodied in a long-standing practice (unilateral and multilateral actions) and was recently presented in the preparatory committee debates as “adjacency” or even “the adjacency principle”.65 Certainly, legal compartmentalisation of the sea does not cause its physical compartmentalisation. However, this is also the case with neighbouring

62 Meld. St. 5 (2012–2013)—The EEA Agreement and Norway’s other agreements with the EU, p. 13. 63 See, e.g.: Almestad (2016) and Sobrido-Prieto (2017). Specifically regarding marine environmental protection, see: Johansen (2017). 64 But not always. For example, in the Barents Sea, waters and CS under Norwegian jurisdiction are adjacent to waters and CS under Russian jurisdiction, with the sole exception of the waters of the so-called Loop Hole (high seas). 65 The “adjacency” or “adjacency principle” is not mentioned in the Report of the Preparatory Committee (July 2017) but it was part of the debate. See the Chair’s non-paper (original version issued on 28 February 2017, pp. 17 and 24), or the streamlined version issued prior to the July meeting (pp. 10 and 15). From the streamlined version: (. . .) 44. Principle of adjacency. Coastal States could be allowed a greater role in conserving, managing and regulating access to the resources of high seas pocket areas” (pp. 10 and 15).

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states. Leaving aside the formulas for collaboration66—or more67—agreed by neighbouring states, does international law afford states any kind of right in relation to marine areas under the jurisdiction of a neighbouring state? That is, does it recognise any rights afforded not to any state but rather only to the neighbouring state? And what about the high seas? Setting aside the case of pollution casualties, which does effectively grant powers to the coastal state on the high seas (Article 221) but concerns an exceptional situation, there is the case of fisheries management. UNCLOS does not grant any preference to the coastal state beyond the EEZ with respect to straddling stocks (Article 63) or highly migratory stocks (Article 64). Although it does recognise a “primary interest” on the part of the state of origin with respect to anadromous stocks (Article 66), such stocks are not usually fished beyond 200 miles.68 In contrast, one of the instruments for the implementation of UNCLOS, the Fish Stocks Agreement,69 does recognise the coastal state’s preference in relation to straddling stocks and highly migratory species. Consequently, many consider that agreement to be a manifestation of creeping jurisdiction. On the other hand, others emphasise that it is a voluntarily accepted regime; only the agreement’s imposition on non-party states,70 or difficulty accessing RFMOs,71 would justify considering it an instance of creeping jurisdiction. Nevertheless, difficulty accessing certain RFMOs has been reported.72 The voluntary acceptance of a restriction (acceptance as source of obligation) must not be confused with the acceptance of a situation already established (acceptance in the sense of acknowledgement of obligation). It should be kept in mind in the case of the extended CS. The CS regime is unique and, therefore, is the same regime up to 200 miles and beyond.73 The difference is in the overlying waters,

66

For example, Joint Development Areas; see Ong (2011). For example, the so-called “Special Area” agreed by Norway and Russia, an area where Russia is entitled to exercise sovereign rights and jurisdiction that would correspond to Norway. Art. 3, Treaty between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean, 2010. See, e.g.: Jensen (2011). 68 With regard to straddling stocks, Franckx (2007, pp. 474–476) refers to the ultimately unsuccessful attempt by Argentina and Canada to change the wording of Art. 63, para. 2 UNCLOS. With regard to anadromous stocks, the author notes that “the cooperation with the State of origin applies much [more] often in the framework of neighbouring countries sharing one and the same stock of anadromous fish”. 69 UN Agreement for the Implementation of the Provisions of the UNCLOS relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (in force as from 11 December 2001). 70 “The UN Fish Stocks Agreement would only have to be considered as an instance of ‘creeping jurisdiction’ if certain States would, for instance, attempt to implement Article 8 paragraph 4 directly vis-á-vis States not parties to the Agreement” (Franckx 2007, p. 495). 71 Vázquez Gómez (2002), p. 252. 72 Vázquez Gómez (2014). 73 Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Judgment, ITLOS Reports 2012, p. 4; see paragraph 361. 67

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which, beyond 200 miles, cease to be EEZs and become the high seas.74 Some RFMOs are competent to adopt management and conservation measures in the high seas related not only to fishing catches, but also the conservation of marine biodiversity. In the case of the North East Atlantic, that is what NEAFC does. It focuses on deep sea fisheries and works for the protection of vulnerable marine ecosystems. Currently, the framework is Recommendation 19: 2014.75 The scope of application of that Recommendation is the NEAFC Regulatory Area,76 and it states very clearly that it does not affect the rights of coastal states over their CS.77 But some coastal states have asked for clarification of NEAFC’s geographical scope.78 Is it a way of defending themselves against the organisation (creeping jurisdiction of NEAFC) or just the opposite (creeping jurisdiction of the coastal states)? When it comes to states, the transboundary harm arising from “hazardous activities” (activities involving a risk of significant harm) is mainly focused on the “state of origin”. Both states must cooperate, but it is the state of origin that is subject to the obligation of prevention.79 A similar approach might be considered in relation to an international organisation with material (fishing) and geographical (high seas) competence. Since the activity is authorised to be carried out in the high seas, the fact of using fishing gear that comes into contact with or is likely to contact the sea floor

74

On the protection of biodiversity in the extended CS, see, e.g.: Ribeiro (2017a). Art. 1 of the Recommendation on the protection of vulnerable marine ecosystems in the NEAFC Regulatory Area (hereinafter NEAFC-Recommendation 19:2014): “The objective of this Recommendation is to ensure the implementation by NEAFC of effective measures to prevent significant adverse impacts of bottom fishing activities on vulnerable marine ecosystems known to occur or likely to occur in the NEAFC Regulatory Area based on the best available scientific information provided or endorsed by the International Council for the Exploration of the Sea (ICES)”. 76 Id., Art. 1: “(. . .) known to occur or likely to occur in the NEAFC Regulatory Area (. . .)”. 77 Id., Art. 3: “This Recommendation shall be without prejudice to any sovereign rights of coastal States over the continental shelf in accordance with the UN Convention on the Law of the Sea for the purpose of exploring and exploiting its natural resources, including living organisms belonging to sedentary species, such as vulnerable marine ecosystems”. 78 “(. . .) Norway and the Russian Federation introduced document AM 2017-31. Norway explained that the proposal was aimed at amending Recommendation 19:2014 in order to clarify its geographical scope in the light of Coastal States’ rights on continental shelves under the United Nations Convention of the Law of the Sea”. NEAFC (2017) 36th Annual Meeting Report–2017. 79 “Prevention of Transboundary Harm from Hazardous Activities”, annexed to General Assembly Resolution 62/68 (2007). Art. 2: “(. . .) d) “State of origin” means the State in the territory or otherwise under the jurisdiction or control of which the activities referred to in Article 1 are planned or are carried out; e) “State likely to be affected” means the State or States in the territory of which there is the risk of significant transboundary harm or which have jurisdiction or control over any other place where there is such a risk; f ) “States concerned” means the State of origin and the State likely to be affected”. Art. 3: “Prevention. The State of origin shall take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof”. Art. 4: “Cooperation. States concerned shall cooperate in good faith and, as necessary, seek the assistance of one or more competent international organizations in preventing significant transboundary harm or at any event in minimizing the risk thereof”. 75

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does not prevent it from being a “transboundary harm”.80 The question is if the responsibility is linked to the breach of the obligation of prevention and/or to the objective damage.81 Under the current framework, a coastal state with an extended CS could only regulate the activities of other states on the high seas if those states have given their consent. They could do that either specifically (acceptance of a specific measure) or generally (acceptance of the coastal state’s power to adopt such measures), and either individually (each state) or multilaterally (multilateral treaty and/or within the framework of an international organisation). In the North East Atlantic, there are MPAs including the extended CSs (claimed or effective) of Portugal82 and the United Kingdom.83 Furthermore, one MPA was divided in two precisely so as not to include the CS claimed by Iceland.84 The applicable framework is OSPAR. The MPAs assigned to coastal states include the CS,85 whilst the MPAs assigned to all OSPAR states include the water column (high seas).86 In this latter case, the consent of the corresponding coastal state has been obtained.87 It is important to point out this since there is a concern regarding potential conflicts between the coastal state’s powers over the extended CS and the

“Art. 2: (. . .) (c) “transboundary harm” means harm caused in the territory of or in other places under the jurisdiction or control of a State other than the State of origin, whether or not the States concerned share a common border”, ibid. 81 As regards the damage caused between Member States, see: “The principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities”, annexed to United Nations General Assembly Resolution 61/36 (2006). 82 Portugal had designated 17 MPAs under the OSPAR framework. Five of them have a special status. On the one hand, four cover an area that Portugal has submitted as extended CS to the Commission on the Limits of the Continental Shelf. These MPAs are: the Altair Seamount High Seas MPA, the Antialtair Seamount High Seas MPA, the Josephine Seamount High Seas MPA, and the Atlantic Ridge North of the Azores High Seas MPA. These four MPAs have been assigned to all contracting parties (category “beyond the EEZ”). Additionally, another of these 17 MPAs is located in the Portuguese CS, including extended CS (Rainbow Hydrothermal Vent Field). This MPA has been assigned to Portugal (category “beyond the EEZ”). The area of this MPA located beyond Portugal’s EEZ is 22 km2. OSPAR Commission (2019), p. 9. On the Portuguese experience, see: Ribeiro (2014), pp. 194–207. 83 The United Kingdom had designated 311 MPAs under the OSPAR framework. Three of them have a special status. Two of these are situated in the extended CS (Hatton Bank SAC, HattonRockall Basin). They have been assigned to the United Kingdom (category “beyond the EEZ”). Another is partially located in the EEZ and partially in the extended British CS (North West Rockall Bank SAC). It has been assigned to the United Kingdom (category “EEZ” and also “beyond the EEZ”). The area beyond the EEZ is about 17.158 km2. OSPAR Commission (2019), p. 9. 84 Both MPAs have been assigned to all states. The northern one (Charlie Gibbs North High Seas MPA) includes only the waters. The southern one (Charlie Gibbs South High Seas MPA) includes waters and sea bottom. 85 Rainbow Hydrothermal Vent Field; Hatton Bank SAC; Hatton-Rockall Basin. As far as the North West Rockall Bank SAC is concerned, it includes the waters, but from the EEZ. 86 Smith and Jabour (2018), p. 421. 87 Ribeiro (2017b), pp. 756–757. 80

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MPAs that could be established on the high seas.88 It remains to be seen what will happen in the future treaty.

3.3

National Jurisdiction in ABNJs

There are marine areas “under” national jurisdiction (national marine territory, EEZ, CS), and marine areas “beyond” national jurisdiction (high seas, the Area). However, in ABNJs the regime of freedom of the high seas89 leads to state jurisdiction. Hence, vessels located in the high seas must respect the regulations (governing fishing, navigation, research, the laying and repair of submarine cables and pipelines, etc.) of their flag state90 and are subject to the flag state’s control. Other than the port states’ jurisdiction,91 and the right of coastal states to intervene on the high seas in cases of pollution casualties,92 the general rule on the high seas is the jurisdiction of the flag state. If several states agree to take measures to preserve a marine area on the high seas, the vessels flying the flags of those states must comply with those measures. States generally do this within the framework of organisations. Thus, North East Atlantic MPAs are adopted in OSPAR. This will be discussed in the following section. One particular issue concerning state jurisdiction on the high seas has to do with ice islands. Despite the attention paid by the literature to the legal status of some sea ice formations,93 especially ice islands, the only legal feature of sea ice recognised in international law of the sea is the “Arctic exception”, which makes it possible to strengthen the coastal state’s competences within the limits of its EEZ.94 The legal uncertainty surrounding ice islands is relevant insofar as they can be occupied. The occupation of ice islands began in the middle of the last century in the form of scientific missions undertaken by Americans, Soviets and Canadians,95 but that is

88

On the concern expressed by some states during the work of the preparatory committee, see, e.g.: Branco (2017). 89 Art. 87 UNCLOS. 90 See, e.g.: Barnes (2015) and Mansell (2009). 91 Territorial jurisdiction over vessels voluntarily within a port or at an off-shore terminal of a state. Particularly, the right to enforcement by port states against foreign vessels in respect of discharges taking place in marine areas beyond their jurisdiction in so far as these discharges were in violation of applicable international rules and standards (Art. 218 UNCLOS). Ringbom and T. Henriksen remark that this provision has been relatively sparingly used in practice (Ringbom and Henriksen 2017, p. 28). 92 Art. 221 UNCLOS. 93 Joyner (2001) addresses, from the perspective of international law, the different ice formations that may occur on land (glacier) or in the sea (sea ice on the surface, blocks of ice on the bottom, and icebergs formed by detaching from glaciers and that may become true islands of ice). 94 Art. 234 UNCLOS. 95 See Jeffries (1992), pp. 248 and 250.

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not provided for under UNCLOS. Given this legal vacuum, for ice islands that are not fixed, which are the majority, an analogy with ships seems to be imposed,96 i.e., a solution in keeping with the treatment of the well-known Escamilla case97 and the majority approach in the literature.98 Although the criterion is occupation, the approach is not sovereignty-related (territorial claim of the ice islands) but rather jurisdictional (in relation to the activities that take place on the ice islands). Based on the notion of the jurisdiction of the flag state (ships),99 one might talk of the jurisdiction of the occupying state100 in relation to unfixed ice islands on the high seas. This solution is not perfect and does not address all the questions (degree of occupation required, types of admissible uses, etc.); however, to the extent that the usefulness of these ice islands arises from their status of floating unfixed (i.e. moving) and non-permanent (i.e. progressively melting) platforms, for the time being, the territorial struggle has been averted. New situations or circumstances could reactivate the debate in the future. This is worth noting here because, from an environmental perspective, in some marine areas the sea ice is one of the elements to be granted protection. To this end, the failed proposal of an “OSPAR Arctic Ice High Seas MPA” will be discussed below (Sect. 3.4).

96

As pointed out in the late 1970s by Pharand (1979, pp. 93–100), given the already important use of the ice islands for scientific research—and to a lesser extent for the exploration of the CS—it was advisable to define its legal regime. The author warned that this was a new legal issue for which there was no conventional regulation (either in the 1958 Conventions or in the then negotiations of what would ultimately become UNCLOS in 1982), and for which no customary law had yet been formed through state practice. In light of this legal vacuum, and despite considering that the ideal solution would be the adoption of a specific international treaty, the author raised the possibility of the analogy with similar objects for which there was a legal regime (natural islands, artificial islands, ships), concluding that the most appropriate analogy was that of ships. Since they were not permanently fixed in one place, ice islands were not comparable to natural or artificial islands; in that author’s view, they would only be comparable to artificial islands if they were used for the exploitation of resources of the platform or superjacent waters and were fixed to ensure their permanent nature. 97 The events took place in 1970 on Ice Island T-3, also known as Fletcher Island, when the expedition leader (B. Lightsey) was killed by a shot accidentally fired by another member of the investigation team (MJ Escamilla), both Americans. Although presumably the ice island had emerged as such when detached from ice located in Canadian territory, T-3 had been occupied since 1952 by research teams under the auspices of the US government. At the time of the events, the ice island was in the high seas. The case was tried by the US justice system, and Canada did not object. It was not tried from the perspective of sovereignty (over island T-3) but rather jurisdiction (over the facts). See, e.g.: Baker (2015), pp. 436–440, and Aubry (1975). 98 The acceptance of this reasoning (i.e. the analogy with ships) to fill this legal vacuum does not prevent some authors from pointing out the appropriateness of a specific legal regime for ice islands; the differences between the two (ships and ice islands) are too significant for the analogy to be fully satisfactory. See, e.g.: Pharand (1979) and Joyner (2001), pp. 41–45. 99 Arts 91 (Nationality of ships) and 92 (Status of ships) UNCLOS. 100 Rothwell and Kaye (1994), p. 57: “Beyond the EEZ then the principle of occupation creating flag-State jurisdiction as applied in Escamilla probably represents the most acceptable solution”.

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Contribution of International Organisations to Biodiversity in ABNJs

As already noted, states can attribute—to a greater or lesser extent—the exercise of their powers to an international organisation. Therefore, they can also attribute the exercise of their powers as a flag state. The same scheme is not followed in all regions, but broadly the international organisations with competence to contribute to the protection of biodiversity in ABNJs are those that deal with fishing (RFMOs), maritime and air traffic (International Maritime Organization, International Civil Aviation Organization), mining exploitation (International Seabed Authority), and environmental protection. As regards the North East Atlantic, the international organisation empowered to establish MPAs beyond national jurisdiction is OSPAR.101 This organisation has identified the following organisations/agreements as competent to contribute to its task of protecting the biodiversity and ecosystems in the ABNJ.102 With regard to living resources, it has identified NEAFC, some organisations related to specific species (small cetaceans, tunas, whales and salmon), and the advisory organisation International Council for the Exploration of the Sea. With regard to maritime and air traffic, it has identified the International Civil Aviation Organization and the International Maritime Organization. With regard to mining, it has identified the International Seabed Authority, with regard to pollution, the London Convention and Protocol, and with regard to marine scientific research, the Intergovernmental Oceanographic Commission. Finally, with regard to cultural heritage, it has identified the United Nations Educational, Scientific and Cultural Organization. OSPAR has signed memoranda of understanding with some of these organisations (the International Council for the Exploration of the Sea in 1995, revised in 2006; the International Seabed Authority in 2011; the North Atlantic Salmon Conservation Organization in 2013), as well as cooperation agreements with the International Maritime Organization (in 1998) and NEAFC (in 2014).103 The agreement with NEAFC has been a collective arrangement since 2014 and is thus entitled “Collective Arrangement between competent international organisations on cooperation and coordination regarding selected areas in areas beyond national jurisdiction in the North-East Atlantic”. It has been adopted by OSPAR and NEAFC, but aims for wider participation by all competent organisations and bodies. As noted earlier, the proposal for an OSPAR Arctic Ice High Seas MPA was rejected. It is worth noting here, to the extent that it raised an issue of competence.

101

Molenaar and Oude Elferink (2009), pp. 5–20. OSPAR’s Regulatory Regime for establishing Marine Protected Areas (MPAs) in Areas Beyond National Jurisdiction (ABNJ) of the OSPAR Maritime Area. Meeting of the OSPAR Commission, 22–26 June 2009, Annex 6 (Ref. §6.13c), pp. 6–7. 103 On memoranda of understanding and cooperation arrangements between OSPAR and other organisations, see: https://www.ospar.org/about/international-cooperation/memoranda-ofunderstanding. 102

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The proposal was made by Greenpeace and was debated, and rejected, by the OSPAR Commission at its meeting in June 2016.104 One of the five regions of OSPAR is the one consisting of the Arctic waters,105 but the Arctic coastal state members of OSPAR (Iceland, Denmark and Norway) claimed the role of “the relevant coastal states”. They noted that three coastal states of the Arctic Central Ocean (United States, Canada and Russia) were not members of OSPAR and, therefore, OSPAR was not the right forum to discuss Arctic issues in general, or a particular Arctic MPA. Instead, they pointed to the Arctic Council, which brings together all the Arctic coastal states. The European Union and four of its Member States (France, Germany, the Netherlands and Spain) contested the position of these three states, recalling OSPAR’s mandate to designate MPAs. Although they emphasised the role of the Arctic Council, they rejected that it could be made the main forum for the discussion of Arctic affairs. Thus, the proposal for this MPA failed as a result of the potential overlap between OSPAR and the Arctic Council.106

4 Final Considerations Currently an intergovernmental conference is working to elaborate the text of an international legally binding instrument under UNCLOS on the conservation and sustainable use of the marine biodiversity of ABNJ. The Conference is addressing four topics, one of which is area-based management tools, including MPAs. At present, MPAs essentially cover areas under national jurisdiction, although since 2009 they have also covered ABNJs (the Area and high seas). Therefore, they are not a tool that must be developed from scratch, but rather one that already exists. The main debate from a jurisdictional perspective leads to states, in general, and coastal states, in particular. The expression “beyond national jurisdiction” does not mean alien to any national jurisdiction. It refers to jurisdiction from a territorial point of view, so these areas, as such, are not subject to national jurisdiction. This expression rules out the exclusivity or predominance of a single state in relation to these marine areas. However, to the extent that the International Seabed Authority is not competent

OSPAR Commission, 20–24 June 2016, Tenerife (Spain). See: “Proposals on the establishment and management of MPAs in ABNJ” (points 6.24–6.28). Summary Record—OSPAR 2016, OSPAR 16/20/1-E. 105 Region I: Arctic Waters. Region II: Greater North Sea. Region III: Celtic Seas. Region IV: Bay of Biscay and Iberian Coast. Region V: Wider Atlantic. 106 Commenting on this event, Molenaar (2017, p. 65) wrote: “However, the Arctic Council’s output on area-based management has so far been fundamentally different from that of the OSPAR Commission, notably due to the former’s lack of multilateral designation and adoption of associated restrictions on human activities”. 104

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(in the Area), the principle of freedom of the high seas leads to the jurisdiction of states (mainly flag states). It is on the basis of this national jurisdiction that international organisations can build their competence in ABNJs. In relation to the MPAs located beyond national jurisdiction in the North East Atlantic, the relevant organisation is OSPAR (environmental protection). However, to be effective, OSPAR has to work in conjunction with any other organisation with competence to contribute to the protection of biodiversity in ABNJs in the North East Atlantic (fisheries, maritime and air traffic, mining exploitation, etc.). OSPAR has therefore signed Memoranda of Understanding with some such organisations in order to enhance the overall effectiveness of the MPAs. The environmental protection of the ABNJ does not depend on a single organisation; coordination and collaboration between organisations is essential. It is currently organised through agreements concluded by the organisations themselves, as in the North East Atlantic. The future treaty could establish other mechanisms. In addition to the position of any state, there is that of the coastal states. As noted, classically, there were only two kinds of marine areas: the territory of states and the high seas. However, over the twentieth century, the high seas were reduced in various ways. As regards the coastal states, not only was their marine territory extended, but they were also granted jurisdiction in adjacent areas (EEZ, CS). Thus, today, there is no adjacency between the marine territory of states and the high seas. Neither is there adjacency with the deep seabed. In other words, the external margin of the ABNJ does not border on national marine territories but rather marine areas under national jurisdiction. Under UNCLOS, other than the case of a serious pollution casualty threatening its coastline or related interests, the position of a state with jurisdiction in marine areas bordering ABNJs is no different from that of any other state. However, in some forums (such as the current UN intergovernmental conference, but also OSPAR) some states claim a reinforced position as relevant coastal states. Amongst other things, this claim has been used to deny the OSPAR’s competence to establish an MPA in its region I (Arctic Waters) with the argument that, unlike in the Arctic Council, not all the relevant coastal states are parties. Furthermore, coastal states with extended CSs have a special position for three main reasons. First, the silence of UNCLOS on the matter makes it impossible to legally identify the sedentary species within the high seas water column or the deep seabed. Their management is thus the responsibility of coastal states with regard to extended CSs (as, for example, in the case of the Loop Hole) and is left to the competent RFMO/As, where applicable, with regard to ABNJs (as with NEAFC). However, sedentary species are much more than fishing resources as they can be exploited as marine genetic resources. That is the approach taken in the intergovernmental conference in relation to sedentary species. The second reason is the harm caused by high-seas bottom fisheries. It corresponds to RFMO/As to close high seas areas to bottom fisheries to protect vulnerable marine ecosystems, whether they are located under national jurisdiction (extended CS) or beyond (deep seabed); hence, NEAFC’s actions. However, these kinds of measures adopted by RFMO/As can lead coastal states to react, as happened in the North East Atlantic. Tensions have mostly

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arisen from the point of view of competence (claims of certain NEAFC states with extended CSs), rather than the perspective of responsibility for the damage or risk of damage (potential responsibility of the competent authority to regulate activity in the high seas, i.e. the RFMOs and/or flag state of the fishing vessel). Finally, the third reason is the uncertainty arising from extended CSs that have been claimed but not yet established (by the Commission on the Limits of the Continental Shelf) and/or delimited (by the concerned states). Such situations have resulted in different models of MPAs in the North East Atlantic: whilst in some cases, the state claiming an extended CS assumes responsibility for the protection, in others, the claim of an extended CS by a state has led to a distinction between two different MPAs so as to omit the claimed extended CS.

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Marta Sobrido-Prieto Tenured Senior Lecturer at the University of A Coruña (Spain). Author of academic publications and legal reports for public and private entities. Areas of expertise: public international law (law of the sea, law of treaties, international organizations, polar governance) and European Union law (EU judicial system, EU competences and EU common fisheries policy).