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  • Series: Research Handbooks in Environmental Law series x
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Edited by Rosemary Rayfuse

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Edited by Rosemary Rayfuse

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Robin Churchill

The UN Convention on the Law of the Sea (LOSC), which was adopted in 1982, devotes a significant proportion of its provisions to the protection of the marine environment. This chapter seeks to assess the value of those provisions at the present time, more than 30 years after the adoption of the LOSC. The chapter does this in two distinct ways. First, it asks how the LOSC compares with an ideal general treaty for the protection of the marine environment that might be drawn up today. Second, the chapter tries to determine the impact and influence that the marine environmental provisions of the LOSC have had on the practice of States and international organizations. To these ends the chapter looks in turn at each of those matters with which, it is suggested, an ideal contemporary general marine environmental treaty would deal. Those matters are: principles for marine environmental policy-making and legislation; the conservation of species; the protection of habitats; the prevention of marine pollution; and climate change. The chapter considers how, if at all, the LOSC addresses each of those issues; and insofar as the LOSC does address them, the chapter comments on the adequacy and practical impact of the LOSC provisions in question. The chapter concludes that the LOSC has serious deficiencies, especially when compared with an ideal contemporary marine environmental treaty, most notably weaknesses in its substantive norms and its failure to provide adequately for its normative development. The most significant contribution of the LOSC has been to establish a clear jurisdictional framework for the adoption and enforcement of national measures to protect the marine environment.

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Yoshifumi Tanaka

International law governing marine environmental protection is not merely a mosaic of specific rules; rather it must be considered as a system governing international relations among States and other entities in respect of their activities both on and in relation to the oceans. In order to properly understand the systemic aspects of the international law of marine environmental protection, it is important to examine the cardinal principles of the international legal system in this field. In fact, the principles of the law have great potential value in three respects: (i) to integrate legal, economic and technological elements into a legal framework; (ii) to provide guidance in the interpretation and application of relevant rules; and (iii) to provide predictable parameters and the orientation for the development of law. While there is no generally agreed catalogue of principles governing marine environmental protection, this chapter will seek to examine in particular the five elements, i.e. the ‘no harm’ principle, the precautionary principle, the concept of sustainable development, the concept of common but differentiated responsibility and the principle of cooperation.

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James Harrison

The international legal framework for the protection of the marine environment has seen rapid development in recent decades and there is little doubt that international institutions have played a leading role in this process. This chapter provides an overview of the types of institutions that are active in this field and the different ways in which they are involved in the making and implementation of international marine environmental law. The chapter draws upon both international legal scholarship and relevant theories from international relations, in order to explain the influence of international institutions and other international actors in developing and implementing rules and principles for the protection of the marine environment. Finally, it considers problems that may arise from the multiplicity of institutions that are involved in the protection of the marine environment and it evaluates some of the solutions that have been put forward to counter the fragmentation of the law-making process. The chapter argues that the focus of future research would be better directed towards improving mechanisms for the effective cooperation and coordination of existing institutions, rather than towards the establishment of a new global institution dedicated to all aspects of marine environmental protection.

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David Osborn

Pollution from land based sources remains one of the most pressing threats to the health, resilience and services of the marine environment. The solutions are complex, demanding multilateral, collaborative and proactive policy responses, ranging from education and awareness campaigns, to financial and economic incentives, to legislative and regulatory regimes underscored by resolute punitive measures for environmental negligence and industrial laggards. Contemporary multilateral mechanisms for protecting the marine environment from land-based sources of pollution – whether hard or soft law – inevitably reflect the rights and principles found in the 1982 United Nations Convention on the Law of the Sea (LOSC). Part XII speaks of obligations, implying that states must deliberately and actively address various threats to the marine environment. Specifically, Article 207 requires states to adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources. The chapter explores global and regional cooperation to address land-based sources of marine pollution, international environmental law of an indirect nature, and the growing labyrinth of soft law. The flexible nature of the 1995 Global Programme of Action for the Protection of the Marine Environment from Land-based Activities is reviewed, highlighting the need for adaptive national approaches that avoid regulatory paradoxes. Enforcement and compliance of domestic legislation, as well as the role of information is addressed, stressing the importance of sustained research and monitoring of the marine environment. The chapter questions whether the current fragmented system of international environmental law and governance is capable of solving the problem. It concludes that a rejuvenated effort by a complex and diverse network of landholders, government, industry, community groups and research organizations is urgently needed to give full effect to international marine environmental law and the obligation, enshrined in the LOSC, to protect the marine environment from land-based sources of pollution.

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Henrik Ringbom

The chapter on vessel-source pollution discusses jurisdictional norms as set out in the Law of the Sea Convention (LOSC) as well as technical standards set developed, in particular, by the International Maritime Organization (IMO). The chapter demonstrates that the adoption and widespread acceptance of the LOSC has not ended the discussion on jurisdictional rights and obligations in relation to vessel-source pollution. Rather, the discussion has shifted towards interpretation of certain key concepts used in the LOSC and, perhaps more importantly, to issues that are not conclusively regulated in the convention. Such open questions include the extent of port states’ (territorial) jurisdiction over foreign ships and the relationship between the jurisdictional regime of the LOSC and the bases for extra-territorial jurisdiction under general international law. At a technical level, ship-source pollution is highly regulated. The chapter provides a brief overview of the rules in the field, with a particular focus on measures to reduce air emissions from ships, which have dominated the regulatory agenda in the past decade and certain issues that are deemed to be of particular legal interest in the years to come. A separate section is included for the implementation and enforcement of the rules. IMO has a privileged position in the regulation of vessel-source pollution, which is also acknowledged in the LOSC. The organization’s role in developing the jurisdictional balance between flag states, coastal states and port states is highlighted. Yet, despite the tradition of centralized and global law-making for shipping, other bodies, including regional ones, have been increasingly active in this field since the turn of the Millennium. The role of these bodies in regulating and controlling ship-source pollution is also briefly reviewed.

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David L. VanderZwaag

This chapter provides, through a five-part ‘cruise’, an overview of the overall shift from a permissive to a precautionary approach to the international control of ocean dumping. Part 2 briefly describes the traditional assimilative capacity approach of the London Convention with the assumption that the oceans could absorb considerable types and amounts of wastes with very limited exceptions. Part 3 summarizes the major shifts towards a precautionary approach introduced by the 1996 London Protocol. Part 4 highlights the ‘sea of challenges’ still being faced in ocean dumping control practice. Various interpretive uncertainties continue to abound, such as what are wastes from normal operations of ships that are excluded from permitting requirements and what precisely are prohibited industrial wastes? Other implementation challenges include: addressing ocean fertilization and geo-engineering activities; strengthening compliance with reporting and monitoring obligations; securing adequate technical and capacity development assistance; dealing with ocean disposals in internal waters; addressing liability and compensation issues; and achieving wide acceptance of the London Convention and Protocol. Part 5 concludes with an overall assessment of international efforts to control ocean dumping to date and suggests future governance directions, in particular the need for a comprehensive and visionary strategic action plan.

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Michael Lodge

This chapter discusses the legal aspects of the protection of the marine environment of the deep seabed beyond the outer limits of the continental shelf, specifically its protection from the potential adverse effects caused by seabed mining. The legal framework for the protection of the marine environment from activities in the Area is contained in the LOSC, the 1994 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, and the rules, regulations and procedures adopted by the International Seabed Authority (ISA). Some of these provisions specifically address protection of the environment, while others are more general but are also relevant to environmental protection. Rules for the protection of the marine environment are adopted by the ISA and implemented by the ISA itself, States sponsoring activities in the Area, and contractors carrying out such activities. This chapter describes the basic legal framework for environmental regulation of activities in the Area and the rules, regulations and procedures issued by ISA to give effect to that framework. The chapter will then discuss the way in which the regulatory system is implemented and continues to evolve through the development and application of best environmental practices as well as a focus on environmental management at regional scale. Finally, note is made of some of the issues that will require further development in the future.

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Joanna Mossop

As many as 80 states may be entitled to claim sovereign rights over their continental shelf where it extends beyond 200 nm from their coastline. Because the extended shelf lies under the high seas rather than an Exclusive Economic Zone, coastal states have less control over activities such as fishing that might impact on the environment of the continental shelf, and simultaneously more obligations in terms of ensuring that activities on the shelf do not negatively impact on commons areas. This chapter explores these issues and asks whether marine protected areas on the extended shelf can be used to protect the environment. The chapter also considers the extent of coastal state rights to protect its interests through unilateral acts and the advantages of international cooperation.