Frontiers in International Environmental Law: Oceans and Climate Challenges Essays in Honour of David Freestone

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Frontiers in International Environmental Law is a collection of essays that showcases how law and legal scholarship can responded to challenges to our oceans and climate governance regimes. Half Title Title Page Copyright Page Contents Foreword Acknowledgements Figures and Table Notes on Contributors Table of Cases Table of Treaties and Other Instruments Introduction Chapter 1 Frontiers in Law and Legal Scholarship 1 Frontiers of Legal Scholarship 2 The Meaning and Importance of Frontiers 3 Structure of the Collection 3.1 Frontier Actors 3.2 Frontiers as Transitional Spaces 3.3 Frontiers and Established Regimes 3.4 Frontiers and Vulnerable Regimes 3.5 Frontiers as Creative Spaces 3.6 New Frontiers 4 Freestone and Frontiers Part 1 Frontier Actors Chapter 2 Water and Soil, Blood and Oil: Demarcating the Frontiers of Australia, Indonesia and Timor-Leste 1 Frontiers, Borders and Boundaries 2 Soil and Blood 3 Oil and Water 4 ‘Now Where’s the Champagne?’ 5 Chega 6 Negotiating a Solution 7 Resources and Boundaries in the Timor Sea 8 A Median Line? 9 Diplomacy, Conflicts and Interests 10 Dirty Deeds in Dili 11 Development Diseconomics 12 Processing Proceeds 13 Kangaroos and Crocodiles Chapter 3 From Laggards to Leaders: The Evolving Role of the Private Actors in the International Climate Regime 1 Introduction 2 Recognition of Non-State Actors in UN Climate Agreements 3 Roles of Non-State Actors in the Climate Regime 3.1 Non-State Observers at UN Climate Talks 3.2 Interests and Roles of Non-State Actors 4 Shifting Responsibilities to Non-State Actors 5 Non-State Actors as Rule Makers 6 Accountability Challenges and Risks 7 Outlook: the Paris Agreement and Non-State Action Chapter 4 Shared Responsibility or Institutional Accountability? Continuing Conceptual and Enforcement Issues for Grievance Mechanisms of Public and Private International Finance Institutions 1 Introduction 2 Institutional Accountability Mechanisms as an Alternative to ‘Shared Responsibility’ for International/Transnational Actors 2.1 Conceptual Challenges to ‘Shared Responsibility’ 2.2 Practical Challenges to ‘Shared Responsibility’ 3 Accountability of Public and Private International Finance Institutions: the World Bank Group and the ‘Equator Principles’ 3.1 The World Bank Inspection Panel: Paving the Way for Accountability of Public International Finance Institutions? 3.2 The Compliance Advisor Ombudsman of the International Finance Corporation 3.3 Case Study of the cao in the Kosovo Energy Privatization Project 3.4 (Non-)Accountability of Private International Finance Institutions: the ‘Equator Principles’ 4 Conclusion Part 2 Frontiers as Transitional Spaces Chapter 5 International Law Obligations of States in Undelimited Maritime Frontier Areas 1 Introduction 2 Obligations in Areas of Overlapping eez s and Inner Continental Shelves 2.1 The Obligation to Effect a Delimitation of Overlapping Zones by Agreement 2.2 The Obligation to Resort to the Dispute Settlement Procedures of Part xv of the losc Where No Agreement Can Be Reached within a Reasonable Period of Time 2.3 The Obligation to Make Every Effort to Enter into Provisional Arrangements of a Practical Nature Pending an Agreement 2.4 The Obligation Not to Jeopardize or Hamper the Reaching of a Boundary Agreement 2.4.1 The Substantive Scope of the Obligation Not to Jeopardize or Hamper 2.4.2 The Geographic Scope of the Obligation Not to Jeopardize or Hamper 2.4.3 The Temporal Scope of the Obligation Not to Jeopardize or Hamper 2.4.4 Other Possible Obligations of Restraint in Undelimited Areas of Overlapping eez s and Continental Shelves 3 Obligations in Areas of Undelimited Overlapping Continental Shelves beyond 200 M 4 Obligations in Areas of Undelimited Overlapping Territorial Seas 5 Obligations of States Not Parties to the losc 6 Conclusion Chapter 6 A New Frontier in the Law of the Sea? Responding to the Implications of Sea Level Rise for Baselines, Limits and Boundaries 1 Introduction 2 Disappearing Coasts 3 Global Sea Level Rise 4 Fresh Frontiers for the Law of the Sea 5 Ambulatory Baselines and Shifting Limits 6 Response Options 7 The Conclusions of the ila Committee on International Law and Sea Level Rise 8 Options for Maintaining Existing Maritime Claims 9 Towards a New Frontier in the Law of the Sea? Chapter 7 Climate Change and Sea Level Rise: Nature of the State and of State Extinction 1 Introduction 2 The Nature of the State and the Extinction of State 2.1 The Historical Requirements of Statehood 2.2 The Nature of the State 2.3 The Extinction of State 3 Concluding Remarks Part 3 Frontiers and Established Regimes Chapter 8 The Frontier in the Historical Development of the International Law of the Sea 1 Introduction 2 Coastal Waters within the Theory of Freedom of the Sea 3 Coastal Waters within the Theory of Sovereignty of the Sea 4 The Cannon Shot Limit 5 The Three-Mile Limit 6 The Maritime Boundary between Coastal States 7 Extravagant Measures 8 Going beyond the 12-Mile Limit 9 The Exclusive Economic Zone 10 The Common Heritage of Mankind 11 Evolution beyond the losc? Chapter 9 New Ways to Break the Ice: Emerging Approaches to the Regulation of Navigation in the Northwest Passage 1 Introduction 2 The Early Search for the nwp and Available Routes 3 Decreasing Sea Ice and the Possibility of Increased Commercial Traffic in the nwp 4 Commercial Rationale for the Utilization of the nwp and Potential Impact 5 The nwp and New Frontiers in the Law of the Sea 6 Safety of Navigation in the nwp 7 The Future of Shipping Regulation in the nwp 8 Conclusion Chapter 10 Taming the Wild North? High Seas Fisheries in the Warming Arctic 1 Introduction 2 Into the Unknown: the Fish Resources of the Central Arctic Ocean 3 The Ground Rules: the International Legal Framework for High Seas Fisheries 4 Jockeying for Position: from Ilulissat to Oslo 5 Plugging the High Seas Hole? The Central Arctic Ocean Fisheries Agreement 6 A Frontier Tamed? Chapter 11 From the Plastics Revolution to the Marine Plastics Crisis: A Patchwork of International Law 1 Introduction 2 Defining the Problem 3 The Law of the Sea and Marine Debris and Plastics 3.1 losc and General International Law 3.2 Due Diligence Obligations of States to Protect and Preserve the Marine Environment from Marine Debris and Marine Plastics 3.3 The Internationally Legally Binding Instrument for the Conservation and Sustainable Use of Biological Diversity in Areas beyond National Jurisdiction 4 Land-based Sources of Pollution 4.1 Global Instruments and Policy Initiatives 5 Marine Litter, Dumping and Vessel-Source Pollution 5.1 London Convention and Protocol 5.2 marpol 5.3 The Basel Convention 6 Fishing Activities and Marine Debris and Plastics 7 Biological Diversity and Marine Debris and Plastics 7.1 Convention on Biological Diversity 7.2 Convention on the Conservation of Migratory Species of Wild Animals 8 Regional Approaches to Addressing Marine Debris and Plastics 8.1 UN Environment Regional Sea Programme 8.2 European Marine Strategy Framework Directive 9 Conclusion Chapter 12 The Ocean and Climate Change Law: Exploring the Relationships 1 The Ocean and Climate Change 2 A Tale of Two Regimes 3 The Ocean and Climate Change Mitigation 3.1 The Role of the Ocean in Promoting Mitigation Generally 3.2 Emissions from Maritime Shipping 3.3 Blue Carbon, Ocean Sinks, and Ocean Fertilization 4 Ocean Adaptation to the Impacts of Climate Change 5 What More Could the UN Climate Regime Do to Protect the Ocean? 6 Conclusion Part 4 Frontiers and Vulnerable Regimes Chapter 13 Enhancing State Responsibility from Environmental Implications of the South China Sea Dispute 1 Introduction 2 Environmental Aspects of the scs Decision 2.1 Environmental Implications of Construction Activities 2.2 Environmental Implications of Harmful Fishing and Trade with Endangered Species 2.3 Summary Remarks on Environmental Aspects of the scs decision 3 Arguments in Support of China’s Conduct in the South China Sea 4 Global Commons in the Twenty-first Century 4.1 The Doctrine of the Common Concern of Humankind 5 Conflict Management Using the Law of State Responsibility 6 Alternative Solutions to Threats to Common Concerns 7 Concluding Remarks Chapter 14 The Contribution of the Precautionary Principle to Marine Environmental Protection: From Making Waves to Smooth Sailing? 1 Introduction 2 Understanding the Precautionary Principle: Origins, Development and Meaning 2.1 Origins 2.2 Development and Meaning 3 Implementation of the Precautionary Principle in Marine Environmental Management 3.1 International Marine Environmental Management 3.1.1 Marine Pollution Control 3.1.2 Fisheries 3.2 Australian Fisheries Law 4 Conclusion Part 5 Frontiers as Creative Spaces Chapter 15 The Interface of Science and Law: A Challenge to the Privileging of ‘Marine Biodiversity’ over ‘Marine Environment’ 1 Introduction 2 Approach by the losc to Boundaries and Frontiers in the Marine Environment 3 The Marine Environment and Marine Biodiversity 4 Marine Ecosystems and Marine Biodiversity 4.1 Static and Mobile Marine Ecosystems 4.1.1 Static Marine Ecosystems 4.1.2 Mobile Marine Ecosystems 5 Protection of Marine Ecosystems and Marine Biodiversity 6 Conclusion Chapter 16 Strategic Environmental Assessment and Its Application to Marine Areas beyond National Jurisdiction 1 Introduction 2 The Concept of Strategic Environmental Assessment 3 Elements of Strategic Environmental Assessments 4 Relationship between sea and eia 5 sea and Marine Spatial Planning 6 Examples of sea in a Marine Context 7 Envisioning sea in abnj 8 The Role of sea in the New Agreement on abnj 9 Conclusion Chapter 17 The Sargasso Sea: An Innovative Approach to Governance in Areas beyond National Jurisdiction 1 Introduction 2 Environmental and Economic Importance of the Sargasso Sea 3 Champions of the Sargasso Sea Ecosystem and the Sargasso Sea Alliance 4 Sargasso Sea Alliance 5 The Hamilton Declaration 5.1 Habitat Conservation in Fisheries Organizations – Fisheries Sectors 5.1.1 Northwest Atlantic Fisheries Organization 5.1.2 International Commission for the Conservation of Atlantic Tunas 5.2 International Maritime Organization – the International Shipping Sector 5.3 International Seabed Authority – the Mining Sector 5.4 International Cable Protection Committee – Submarine Cable Sector 5.5 Conservation of Migratory Species 5.5.1 Conservation of Sea Turtles 5.5.2 Conservation of Whales 5.5.3 Conservation of Eels 5.6 The ssc’s Role in Advancing Data and Information Management 6 Summary of Lessons Learned from the Innovative Governance of the Sargasso Sea 7 A Way Forward: Navigating Towards Conservation of Biodiversity in the abnj 8 A Way Forward for the Sargasso Sea Commission Chapter 18 Strengthening the Stewardship of the Sargasso Sea 1 Introduction 2 Background on the Hamilton Declaration and the Sargasso Sea Commission 3 Options for Strengthening Stewardship of the Sargasso Sea 3.1 ccamlr as a Possible Model 3.1.1 Comparing the ccamlr and Sargasso Sea Contexts 3.1.2 Implementing the ccamlr Model 3.1.3 Advantage of Pursuing this Approach 3.1.4 Disadvantage of Pursuing this Approach 3.2 ospar as a Possible Model 3.2.1 Comparing the ospar and Sargasso Sea Contexts 3.2.2 Implementing the ospar Model 3.2.3 Advantages of Pursuing this Approach 3.2.4 Disadvantages of Pursuing this Approach 3.3 Considering a Hybrid Model – or Even a Completely New Model 3.3.1 What a Hybrid or New Model Might Entail 3.3.2 Implementing the Hybrid or New Model 3.3.3 Relationship between a Hybrid/New Model and Other International Bodies and Regimes 3.3.4 Advantages of Pursuing this Approach 3.3.5 Disadvantages of Pursuing this Approach 4 Conclusion Part 6 New Frontiers Chapter 19 The Anthropocene, Five Discourses and Frontier Space 1 Introduction 2 Boundaries and the Anthropocene 3 Five Discourses on the Anthropocene 4 The Space in Which Anthropocene Related Discourses Interact 5 Two Considerations by Way of Conclusion David Freestone Index