The Environmental Rule of Law for Oceans: Designing Legal Solutions

Description

Our oceans need a strong and effective environmental rule of law to protect them against increased pressures and demands, including climate change, pollution, fisheries, shipping and more. The environmental rule of law for oceans requires the existence of a set of rules and policies at multiple governance levels that appropriately regulate human activities at sea and ensure that pressures on the marine ecosystem are tackled effectively. Adhering to the rule of law through clear, predictable, coherent, and legitimate rules, and their implementation and enforcement, is timely and urgent. In this book, we are searching for ways to improve, strengthen and further develop the environmental rule of law for oceans. The book provides future-oriented perspectives on how law should evolve to better preserve the oceans. All chapters incorporate novel insights and ideas for legal solutions that might inspire scholars, actors, authorities, citizens and communities around the globe. This title is Open Access. Cover Half-title Title page Copyright information Contents List of Contributors Foreword Preface Table of International Instruments Table of Cases List of Abbreviations Part I Introduction 1 The Environmental Rule of Law for Oceans 1.1 Introduction: Oceans under Threat 1.2 From Rule of Law to Environmental Rule of Law for Oceans 1.2.1 The International Dimension 1.2.2 The Rule of Law for Oceans 1.3 Aim of the Book 1.4 Structure of the Book 1.4.1 Part II: Tackling Multiple Pressures on the Oceans 1.4.2 Part III: Balancing the Exploitation and Preservation of Ocean Resources 1.4.3 Part IV: Paths towards Effective Ocean Governance, Implementation and Compliance 1.4.4 Part V: Strengthening the Rule of Law in Regional Seas and Oceans 1.4.5 Part VI: Concluding Remarks Part II Tackling Multiple Pressures on the Oceans 2 Oceans and Climate Change: Implications for UNCLOS and the UN Climate Regime 2.1 Introduction 2.2 Scientific Background 2.3 A Way Forward? 2.4 Climate Change and the Law of the Sea (UNCLOS) 2.5 UN Climate Change Regime and the Oceans 2.6 The Oceans as a Solution to Climate Change: Some Suggestions 2.6.1 Ocean-Based Renewable Energy 2.6.2 Decarbonizing Ocean-Based Transport 2.6.3 Coastal and Marine Ecosystem Protection 2.6.4 Management of Fisheries and Aquaculture 2.7 Conclusions 3 Controlling GHG Emissions from Shipping: The Role, Relevance and Fitness for Purpose of UNCLOS 3.1 Introduction 3.2 The UN Climate Change Regime 3.3 The Initial IMO Strategy on Reduction of GHG Emissions from Ships 3.4 The Law of the Sea Convention 3.4.1 Pollution of the Marine Environment 3.4.2 General Provisions: Articles 192 and 194 3.4.3 More Specific Provisions: Articles 211 and 212 3.4.4 Prescriptive and Enforcement Jurisdiction 3.4.4.1 Flag State Jurisdiction 3.4.4.2 Coastal State Jurisdiction Territorial Sea Exclusive Economic Zone 3.4.4.3 Port State Jurisdiction 3.4.4.4 Port State Control 3.5 Fitness for Purpose and the Way Ahead 4 An International Legal Framework for Marine Plastics Pollution: Time for a Change to Regulate the Lifecycle of Plastics 4.1 Introduction 4.2 The Current Legal Framework Governing Marine Plastic Litter and Microplastics 4.2.1 Fragmented Nature of International Instruments 4.2.2 Lack of Consideration of the Lifecycle of Plastics 4.3 Strengthening the Existing Regulatory Framework 4.3.1 Cooperation and Coordination between International Instruments 4.3.2 Importance of Regional Cooperation 4.3.3 Engagement of Multi-Stakeholders 4.4 Towards a global treaty on the lifecycle of plastics 4.5 Conclusion 5 The 'Thin Law' of Plastic Regulation and a Proposal for a Regional or Global Waste Tariff 5.1 Introduction 5.2 Problem: The Plastocene 5.3 Gaps and Challenges: Too Much 'Thin Law' for a Thick Law Problem 5.3.1 Thin National Laws 5.3.2 Thicker Laws? 5.4 Solution: Overdue Single-Use Waste Tariffs and Plastic Fishing Gear Tariffs to Address Major Sources of Marine Plastics 5.5 Conclusion 6 Pollution of the Marine Environment by Spaceflights 6.1 Introduction 6.2 The International Environmental Framework Governing Spaceflight Pollution 6.2.1 International Space Law 6.2.2 Law of the Sea as a Normative Basis for Regulating Marine Pollution by Spaceflights 6.2.3 Relevance of the Dumping Regime to Tackling Marine Pollution in the Space Sector 6.3 Assessment and Pathways to More Effective International Regulation of Spaceflight-Source Marine Pollution 6.3.1 Overview 6.3.2 Strengthening Knowledge about the Marine Environmental Impact of Spaceflight 6.3.3 Developing the Institutional Framework in the Space Sector to Include Environmental Matters 6.4 Conclusions Part III Balancing the Exploitation and Preservation of Ocean Resources 7 Restoration Activities in the Marine Environment: Balancing Diverging Perceptions of 'Risk' 7.1 Introduction 7.2 Restoration Activities under UNCLOS 7.3 The Ocean Cleanup: A Novel Use of the High Seas 7.3.1 The 2018 Agreement between the Netherlands and The Ocean Cleanup 7.3.2 Outstanding Questions: What Standard of Due Diligence? 7.4 Balancing Unknown Risks 7.5 Conclusions 8 Marine Geoengineering to Abate Eutrophication in the Baltic Sea: How to Address Regulatory Voids and Uncertainty 8.1 Introduction 8.2 Rules Applicable to Sea-Based or Geoengineering Measures? 8.2.1 The International Legal Framework 8.2.2 Regional Rules: The Helsinki Convention and EU Law 8.2.3 Conclusions 8.3 Environmental Law Principles 8.3.1 General 8.3.2 The Principle of Prevention 8.3.3 'Best Available Technology' 8.3.4 The Precautionary Principle 8.3.4.1 General 8.3.4.2 Application to Sea-Based Measures 8.3.4.3 The Precedent in the London Dumping Regime 8.3.5 Conclusions on the Role of Environmental Law Principles 8.4 Concluding Observations 9 Filling an Iceberg-Sized Gap in the Law of the Sea: Addressing an Emerging Demand on Oceans 9.1 Introduction 9.2 Regulating the Use of Icebergs within the Current Framework of International Law 9.2.1 Status of Ice under International Law 9.2.2 Rules and Principles Regulating Operations to Tow Icebergs 9.3 Filling an Iceberg-Sized Gap in International Law 9.4 Conclusion 10 The Precautionary Principle/Approach and the United Nations Convention on the Law of the Sea: Management of Living Resources 10.1 Introduction 10.2 Precautionary Principle/Approach, Management of Living Resources 10.2.1 The Notion of the 'Precautionary Principle/Approach' 10.2.2 The Notion of 'Living Resources' 10.2.3 The Notion of 'Management' 10.3 The Precautionary Principle in Regard to the Management of Living Resources 'within' the UNCLOS 10.3.1 Part V, Part VII and Article 290(1) UNCLOS 10.3.2 Part XII UNCLOS 10.3.2.1 The Precautionary Principle and Due Diligence/Obligations of Conduct 10.3.2.2 Due Diligence/Obligations of Conduct under the UNCLOS 10.3.2.3 Beyond Today's Jurisprudence 10.3.2.4 Conclusion 10.4 Final Remarks 11 A Regime Lost at Sea: Critical Reflections on the UNCLOS Conservation Regime and the Future of Marine Biodiversity Protection 11.1 Introduction 11.2 A Green Legal Theory Framework for the Law of the Sea 11.3 Economic Growth and UNCLOS' Framework for Marine Biodiversity Protection 11.4 Forging a New Future for Marine Biodiversity Protection: Strategic Revolution and the Law 11.5 Conclusion 12 Fisheries Redistribution under Climate Change: Rethinking the Law to Address the 'Governance Gap'? 12.1 Introduction 12.2 Fisheries Redistribution under Climate Change 12.2.1 Causes and Consequences 12.2.2 The Case for Adaptation 12.3 The International Legal Framework: Fit for Purpose? 12.3.1 Protection and Preservation of the Marine Environment 12.3.2 UNCLOS Part XII and International Climate Law 12.3.3 Cooperation with Relevant States 12.3.4 Use of the Best Available Science 12.3.5 Interim Conclusions 12.4 Adaptive Responses to Fisheries Redistribution: Strengthening Solutions 13 Defining Marine Genetic Resources: Navigating through the Sea of Uncertainties 13.1 Introduction 13.2 Starting Point: Genetic Resources 13.3 Material Scope 13.3.1 'Material' 13.3.2 'Functional Units of Heredity' 13.3.3 'Of Actual or Potential Value' 13.4 Geographical Scope 13.5 Conclusion and Outlook Part IV Paths towards Effective Ocean Governance, Implementation and Compliance 14 Legitimacy and EU Marine Governance 14.1 Introduction 14.2 On Legitimacy 14.3 Legal Frameworks for EU Marine Governance 14.3.1 The Water Framework Directive 14.3.2 Marine Strategy Framework Directive 14.3.3 Maritime Spatial Planning Directive 14.4 Concluding Discussion 15 Recognition of Maritime Environmental Crimes within International Law: A New Global Paradigm for the Protection and Preservation of the Marine Environment 15.1 Introduction 15.2 Conceptualization 15.3 The Multijurisdictional Challenge 15.3.1 Spatial Jurisdiction 15.3.2 Functional Jurisdiction 15.3.3 Conflict of Jurisdictions 15.4 The Importance of International Cooperation 15.5 Is There Room for Maritime Environmental Crimes within International Law? 15.6 Conclusions and Outlook 16 Mending the Net: State Responsibility for Nationals Engaged in IUU Fishing? 16.1 Introduction 16.2 IUU Fishing: Current Framework 16.2.1 UNCLOS 16.2.2 ITLOS Advisory Opinion 16.2.3 Other Instruments 16.3 Challenging the Persons behind the Scenes 16.3.1 Owners, Operators and Other Beneficiaries 16.3.2 Exercise of Jurisdiction 16.4 Obligation to Act against Nationals Involved in IUU Fishing? 16.4.1 UNCLOS and Responsibility for IUU Fishing Operations 16.4.2 Obligation to Act against Nationals Involved in IUU Fishing? 16.5 Conclusion 17 The Advisory Jurisdiction of the ITLOS: From Uncertainties to Opportunities for Ocean Governance 17.1 Introduction 17.2 Advisory Opinions and Ocean Governance 17.3 Architecture of the ITLOS Advisory Function: Vacuums and Opportunities 17.3.1 The Legal Basis of the Advisory Function 17.3.2 The Requirement of 'International Agreement': A Restrictive or Broad Approach? 17.3.2.1 Restrictive Approach 17.3.2.2 Broad Approach 17.3.3 Ad Hoc Jurisdictional Agreements: Requirements and Foresights 17.3.3.1 Minimum Requirements 17.3.3.2 Personality to Conclude Special Agreements 17.3.3.3 Legal Question: The Functional and Legitimate Tests 17.3.3.4 Discretionary Power of the ITLOS 17.4 Conclusions 18 Could the WTO Save the Oceans?: An Inquiry into the Role of the WTO in the Future of Fisheries Policies 18.1 Introduction 18.2 The [Poorly Shaped] Pressure to Deliver: Impediments Faced by WTO NGR Negotiators 18.3 Fisheries Subsidies at the WTO: The History 18.4 Factors Attracting the Issue to the WTO Agenda 18.5 Squaring the New Subsidies with WTO Subsidies Disciplines 18.6 What the Negotiations Are Really About: The Three Elements of a Future Deal 18.6.1 Capacity-Enhancing Subsidies (e.g., Contributing to Overcapacity and Overfishing) 18.6.2 Subsidies to Fishing on Overfished Stocks 18.6.3 Subsidies to IUU Fishing 18.6.4 The Effective Way Forward 18.7 Concluding Remarks 19 Improving Compliance with International Fisheries Law through Litigation 19.1 Introduction 19.2 Litigation against a Flag State 19.2.1 Standing 19.2.2 Jurisdiction 19.3 Litigation against a Coastal State 19.3.1 Scope of Jurisdiction 19.3.2 Remedies 19.4 Litigation against a State Fishing Shared Stocks 19.4.1 Content of Relevant Obligation 19.4.2 Bilateral Proceedings v. Complex Multilateral Reality 19.5 Conclusion Part V Strengthening the Rule of Law in Regional Seas and Oceans 20 Regional Cooperation for the Conservation of Marine Biodiversity in the Eastern Tropical Pacific: A Rule of Law Perspective 20.1 Ocean Governance and the Rule of Law 20.2 A Regional Approach to Ocean Governance 20.3 Regional Cooperation in the Eastern Tropical Pacific Ocean 20.4 Rule of Law Challenges 20.4.1 Lack of a Legally Binding Agreement 20.4.2 Limited Sectoral Participation 20.4.3 Scale 20.4.4 Fragmented Regional Ocean Governance 20.5 The Road Ahead 21 Oil Pollution Control Regulations in the Baltic Sea: The Effect of Institutional Interplay on Implementation of the Ecosystem Approach 21.1 Introduction 21.2 Ecosystem Approach in the Context of Baltic Sea Marine Protection 21.3 Ecosystem Approach in the Baltic Sea 21.3.1 United Nations Convention on the Law of the Sea (UNCLOS) and International Convention for the Prevention of Pollution from Ships (MARPOL) 21.3.2 The Convention on the Protection of the Marine Environment of the Baltic Sea Area 1992 and the HELCOM Baltic Sea Action Plan 21.3.3 Marine Strategy Framework Directive 21.4 Institutional Interplay and the Ecosystem Approach 21.5 Reflections and Suggestions for Improvement 22 The International Law of the Sea and Arctic Governance: Paving the Way to Integrated Ecosystem-Based Marine Management 22.1 Introduction 22.2 Integrated Ecosystem-Based Marine Management 22.3 Regional Experience 22.3.1 CAMLR Commission 22.3.2 Mediterranean Instrument 22.3.3 OSPAR 22.4 Possible Solutions to IEBMM Challenges in the Arctic Ocean 22.4.1 Efficient Regional Management Organization 22.4.2 Coordination with Sectoral Organizations 22.4.3 Greater Involvement of Non-Arctic States 22.4.4 Coordination of Research Efforts in the Arctic 22.5 Ways Forward 23 Understanding Japan's Resumption of Commercial Whaling under International Law 23.1 Whaling under International Law: An Ongoing Debate 23.2 Whaling in Relation to Marine Environmental Protection 23.2.1 Legality of Whaling and the Precautionary Approach 23.2.2 Whaling in Japan's Environmental and Ocean Policy 23.2.3 Public Opinion on Whaling and Implications on Policy-Making in Japan 23.3 Japan's Resumption of Commercial Whaling under International Law 23.3.1 Whaling within Japan's EEZ Lawful if Conducted Sustainably 23.4 Towards Solutions 24 Failing Rule of Law: The Case of the South China Sea 24.1 Introduction: The Rule of Law 24.2 The South China Sea Arbitration and Part XII of UNCLOS 24.3 The International Cooperation Regime in the SCS 24.4 Due Regard 24.5 Resort to the Rule of Law: Cooperation and Due Regard 24.6 Conclusion: Looking to the Future Part VI Concluding Remarks 25 Legal Solutions for Oceans in Change: Mapping Out the Way Forward 25.1 Cross-Cutting Issues Affecting the Rule of Law for Oceans 25.2 Mapping out the Way Forward 25.2.1 Strengthening the Rule of Law through Improved Regulation and Governance of Existing and Novel Pressures 25.2.2 Strengthening the Rule of Law through a Better Balance between Exploitation and Protection of Our Oceans 25.2.3 Strengthening the Rule of Law through Improved Implementation, Compliance and Enforcement 25.2.4 Strengthening the Rule of Law in the Regional Seas and Oceans 25.3 Future Outlook for the Rule of Law for Oceans Index