The Designation of Marine Protected Areas: A Legal Obligation

Acknowledgement
Contents
List of Abbreviations
Chapter 1: Introduction
	1.1 Problem and Resulting Research Question
	1.2 State of Research
	1.3 Course of Examination and Limitation
	References
Chapter 2: Setting the Scene
	2.1 Context
		2.1.1 Historical Development
			2.1.1.1 Mare Liberum vs Mare Clausum
			2.1.1.2 The Codification of the Law of the Sea and Its Functions
				First Function of the UNCLOS: Spatial Distribution of State
				Second Function of the UNCLOS: Cooperation to Manage the Ocean
		2.1.2 Ocean Governance
	2.2 Relevant Principles of Public International Law
		2.2.1 Zonal Division of Marine Spaces Under the UNCLOS
			2.2.1.1 Areas Under National Jurisdiction: Exclusive Sovereignty
			2.2.1.2 Areas Under National Jurisdiction: Single Sovereign Rights
				The EEZ, Continental Shelf and Contiguous Zone
				The Legal Status of the EEZ
				Conclusion: EEZ, Continental Shelf, Contiguous Zone
			2.2.1.3 Areas Beyond National Jurisdiction
			2.2.1.4 Impediment for the Designation of MPAs: Zonal Division of the Sea
		2.2.2 Sources of International Law
			2.2.2.1 Treaties
				Binding Effect of Treaties
				Impediment for the Establishment of MPAs: Limited Binding Effect of Treaties
			2.2.2.2 Customary International Law
				The Relationship of Treaties and Customary International Law
				The Creation of Customary International Law
					General Practice of States
					Acceptance as Law
				Relativity of Customary International Law
					Persistent Objector
					Special Customary International Law
				Jus Cogens
			2.2.2.3 Inter Partes and Erga Omnes Effect of Rules of International Law
			2.2.2.4 General Principles
			2.2.2.5 Soft Law
			2.2.2.6 The UN General Assembly and Security Council and the Formation of Law
			2.2.2.7 Relationship of National and Public International Law
	2.3 Definition of MPAs
		2.3.1 Requirements to a Suitable Legal Definition of MPAs
		2.3.2 Definitions of MPAs in Policies and Legal Frameworks
		2.3.3 Geographically Defined Marine Area
		2.3.4 Designated by Legislation
		2.3.5 Protection, Preservation or Conservation Objective
			2.3.5.1 Level of Protection and Categories
			2.3.5.2 Stages of Establishment
		2.3.6 Conclusion: Definition of MPAs
	2.4 Overview of the International Legal Framework of MPAs
		2.4.1 Global and General Regulations
			2.4.1.1 Art. 192, 194 (5) UNCLOS and BBNJ
			2.4.1.2 Other Global and General Obligations
		2.4.2 Specific Regulations
			2.4.2.1 Species Specific Regulations
				Species Specific Treaties with Primary Conservation Objective
				Fisheries Convention with Secondary Conservation Objective
				The FAO
			2.4.2.2 Activity Specific Regulations
				Section 5 of Part XII UNCLOS
				Land-Based Pollution
				Pollution from Dumping
				Pollution from Vessels
			2.4.2.3 Region Specific Regulations
		2.4.3 Relevant Rules of Customary International Law and General Principles
		2.4.4 Other Branches of Public International Law
			2.4.4.1 Human Right to Environment
			2.4.4.2 Non-Human Right of Nature
			2.4.4.3 Cultural Heritage
	2.5 Conclusion: Universal Obligation Art. 192 UNCLOS
	References
Chapter 3: Legally Binding Obligation
	3.1 Interpretation of the Obligation Under Art. 192 UNCLOS
	3.2 Literal Interpretation
	3.3 Systematic Interpretation
	3.4 Teleological Interpretation
		3.4.1 Preamble
		3.4.2 Liability and Responsibility Under Art. 235 UNCLOS
		3.4.3 Obligation Entailed Under Art. 194 (1) UNCLOS
			3.4.3.1 Interpretation of Art. 194 (1)-(4) UNCLOS
			3.4.3.2 Application of Art. 194 (5) UNCLOS to Art. 194 (1)-(4) UNCLOS
			3.4.3.3 Obligation to Protect and Preserve the Marine Environment as Lex Generalis
			3.4.3.4 Objective to Formulate an Open Obligation
	3.5 Historical Interpretation
	3.6 Conclusion: Legally Binding Obligation
	References
Chapter 4: Personal Scope: An Obligation Erga Omnes
	4.1 Art. 192 UNCLOS as Treaty Regulation
	4.2 Art. 192 UNCLOS as Customary International Law
		4.2.1 No General Customary Status of the UNCLOS
		4.2.2 General States´ Practice to Protect and Preserve the Marine Environment
			4.2.2.1 States´ Practice to Adopt International Treaties
				States´ Practice to Adopt General and Global Instruments
					Universal States´ Practice to Protect and Preserve the Marine Environment
					Participation of Important States
					Particularly Affected States
				States´ Practice to Adopt Specific Treaties
					Treaties for the Protection of Specific Regions and Ecosystems
					Treaties for the Protection of Species
					Treaties for the Protection of the Marine Environment from Pollution
				Evaluation of Instruments
			4.2.2.2 States´ Practice to Establish MPAs
				Government Declarations to Establish MPAs
				Enhanced States´ Practice to Establish MPAs
					National States´ Practice to Establish MPAs
					International States´ Practice to Establish MPAs
			4.2.2.3 Conclusion: General States´ Practice
		4.2.3 Opinio Juris Sive Necessitatis
			4.2.3.1 Opinio Juris Expressed Through the States´ Practice
			4.2.3.2 Opinio Juris Expressed Through Treaties
				Opinio Juris Before and Subsequent to the UNCLOS
				Opinio Juris in the UNCLOS: The UNCLOS III Conference
				Opinio Juris Expressed in Other Agreements
			4.2.3.3 Opinio Juris Through States´ Statements
				General Statements of States in the UN General Assembly
				Specific Statements of States in the UN General Assembly
				States´ Pleadings Before Courts and Tribunals
					Request for an Advisory Opinion Submitted by the SRFC
					MOX Plant
					South China Sea Arbitration (Philippines v. China)
				Official Statements by Ministers (China)
				Statements of Non-members of the UNCLOS
					The USA
					Turkey
				Persistent Objectors
					USA and Turkey
					Venezuela
					Colombia
			4.2.3.4 Opinio Juris Expressed Through Other Non-binding Instruments
				Stockholm, Rio and Agenda 21
				UNEP Regional Seas Programme
				Development of the BBNJ
				Resolutions of the UN General Assembly
			4.2.3.5 Opinio Juris Expressed Through International Organisations
				The Capability of International Organisations to Express an Opinio Juris
				Opinio Juris of the European Union
				General Assembly and International Law Commission
			4.2.3.6 Opinio Juris Confirmed by Jurisprudence
		4.2.4 Conclusion: Customary Status of Art. 192 UNCLOS
	4.3 Art. 192 UNCLOS as Jus Cogens
		4.3.1 Fundamental Value
		4.3.2 Universal Acceptance
		4.3.3 No Derogation and Modification Only by Other Peremptory Norms
			4.3.3.1 Art. 193 UNCLOS
			4.3.3.2 Art. 2 (1), (3) UNCLOS
			4.3.3.3 Freedom of the High Sea
				Art. 87 UNCLOS
				Art. 89 UNCLOS
					Application of the Conditions of Art. 87 UNCLOS to Art. 89 UNCLOS
					Different Substantive Scope of Art. 89 UNCLOS and Art. 87 UNCLOS
					Jus Cogens Status of Art. 89 UNCLOS
					Conclusion: Art. 89 UNCLOS and the Cogent Status of Art. 192 UNCLOS
			4.3.3.4 Art. 194 (4) UNCLOS
			4.3.3.5 Sovereign Immunity of Warships Art. 236 UNCLOS
				Art. 236 UNCLOS as Jus Cogens
				No Collision with Art. 236 UNCLOS
					Objective of Art. 236 (First Sentence) UNCLOS
					Interpretation of Art. 236 (Second Sentence) UNCLOS
				Consequence of the Collision with Jus Cogens
					Emergence of the Peremptory Norm Before or After the Treaty
					Termination of Art. 236 UNCLOS, Art. 44 VCLT
				Conclusion: Jus Cogens Status of Art. 236 UNCLOS
	4.4 Conclusion: Erga Omnes Effect of Art. 192 UNCLOS
	4.5 Legal Standing
	References
Chapter 5: Geographical Scope: Marine Environment
	5.1 Marine Environment: De Facto
		5.1.1 The Deep Seabed
		5.1.2 Marine Life in the Water (Pelagic Zones)
		5.1.3 Marine Life and Ecosystem on the Ocean Floor
		5.1.4 Bottom Trawling
		5.1.5 Conclusion: Undiscovered Habitat: The Ocean
	5.2 Marine Environment: De Jure
		5.2.1 Transzonal Application
		5.2.2 No Legal Definition of Marine Environment
		5.2.3 Geographical Scope of Ocean Under the UNCLOS
			5.2.3.1 Water Column, Seabed, Ocean Floor and Subsoil Thereof
			5.2.3.2 Baselines
			5.2.3.3 Low Water Line: Lowest Astronomical Tide
			5.2.3.4 Airspace
			5.2.3.5 Adjustment by the Regulations on Pollution of the Maine Environment
		5.2.4 Marine Life, Endangered Species, Marine Biodiversity, Ecosystems
			5.2.4.1 Marine Life, Endangered Species and Their Habitats
			5.2.4.2 Marine Biodiversity Including Coral Reefs
			5.2.4.3 Connectivity Between Ecosystems
		5.2.5 Conclusion: Substantiation of the Marine Environment and Large-Scale MPAs
	References
Chapter 6: Substantive Scope: Designation of MPAs
	6.1 Primary, General Obligation
	6.2 All Threats
	6.3 Obligation to Adopt Active Measures: Establishment of MPAs
		6.3.1 Obligation to Adopt Active Measures
			6.3.1.1 Legal Obligation Means to Take or Omit Actions
			6.3.1.2 Protection and Preservation Require Active Measures
			6.3.1.3 Adoption of MPAs as Measure
			6.3.1.4 Conclusion: Obligation to Take Active Measures
		6.3.2 Active Measures of States Regulated in Administrative Law
		6.3.3 The Establishment of MPAs as Measure in (German) National Law
			6.3.3.1 Preliminary Audit: Application of the UNCLOS in (German) Domestic Law
			6.3.3.2 Active Measures in (German) Administrative Law
			6.3.3.3 Active Measure Specified on Adoption of National Legislation
				Assessment Prerogative
				Active Measures: National Legislation
			6.3.3.4 Establishment of MPAs as Active Measures in German Law
		6.3.4 The Establishment of MPAs as Measures in EU Law
			6.3.4.1 Active Measures in EU Law
			6.3.4.2 Active Measure Specified on Adoption of European Legislation
			6.3.4.3 Establishment of MPAs as Active Measures in EU Law
		6.3.5 The Establishment of MPAs as Measures in Public International Law
			6.3.5.1 Legislation as Active Measures in Public International Law
			6.3.5.2 Legislation as Active Measure to Protect and Preserve the Marine Environment
				Prerogative Concerning If to Adopt Active Measures
				Prerogative Concerning How to Adopt Active Measures
					Other Measures Than Legislation Stipulated in the UNCLOS
						Promotion Measures Under Art. 269, 268 UNCLOS
						Enforcement Measures Under Art. 213 ff. UNCLOS
					Legislation as Measure Under the UNCLOS
						Adoption of Rules and Regulations in Part XII UNCLOS
							Obligation to Cooperate Under Art. 197 UNCLOS
							Measures Under Art. 194 (5) UNCLOS
							Measures Under Art. 194 (1)-(3) UNCLOS
							Obligation to Adopt Measure to Prevent, Reduce and Control Pollution
							Dissenting Opinion to the Chagos Marine Protected Areas Arbitration
						Adoption of Rules and Regulations as Measures in Part XI UNCLOS
						Adoption of Rules and Regulations as Measures in Part XIII UNCLOS
					Historical Interpretation of Legislation Under the UNCLOS
					Soft Law as Measures
					Adoption of Rules and Regulations as Measures in the Jurisprudence
				Conclusion: Obligation to Adopt Legislation
			6.3.5.3 Establishment of MPAs as Active Measures Under Art. 192 UNCLOS
		6.3.6 The Obligation of Flag States
			6.3.6.1 Legislative and Enforcement Competence of the Flag State
			6.3.6.2 Enforcement Jurisdiction of the Flag State Under Art. 92, 94 UNCLOS
			6.3.6.3 Flag State Jurisdiction and MPAs
			6.3.6.4 Conclusion: Flag State Jurisdiction
		6.3.7 Conclusion: Obligation of States to Establish MPAs
	6.4 Competence of International Courts to Oblige States to Adopt Legislation
		6.4.1 Obligation to Establish MPAs
		6.4.2 Judicial Review of Legislations in Case of Obvious Violations
		6.4.3 Judicial Decisions as Subsidiary Means for the Determination of Rules of Law
	6.5 Competence to Establish MPAs in the Zones of the Sea
		6.5.1 Territorial Sea
			6.5.1.1 The Obligation of the Coastal State to Adopt National Laws
			6.5.1.2 Straits Used for International Navigation (Transit Passage)
				Use of International Straits
				Coastal State Jurisdiction
				Internationally Accepted Regulations for Pollution
				Traffic Separation Schemes and Pollution
				Flag State Obligation
			6.5.1.3 Innocent Passage
				Limitation by Innocent Passage
				Laws and Regulations for Innocent Passage
			6.5.1.4 Conclusion: Territorial Sea
		6.5.2 High Sea
			6.5.2.1 Art. 87 UNCLOS
			6.5.2.2 Specific Regulations to Protect the Marine Environment in the High Sea
			6.5.2.3 Exclusive Jurisdiction of the Flag State
			6.5.2.4 Conclusion: High Sea
		6.5.3 Exclusive Economic Zone
			6.5.3.1 Application of Art. 89 UNCLOS in the EEZ
			6.5.3.2 Jurisdiction
				Jurisdiction and Sovereign Rights Under Art. 56 (1) UNCLOS
				Exclusive Jurisdiction of the Coastal State
				Special Jurisdiction and Sovereign Rights in the EEZ
				Jurisdiction to Prevent, Reduce and Control Pollution
			6.5.3.3 Art. 56 (1) (b) (iii) UNCLOS no Lex Specialis for Art. 192 UNCLOS
			6.5.3.4 Excurse: The Mediterranean Sea
		6.5.4 The Area
			6.5.4.1 Scope of Part XI UNCLOS
				Geographical Scope
				Personal Scope
				Substantive Scope: Activities in the Area
				Conclusion: Scope of Application of Part XI
			6.5.4.2 Common Heritage of Mankind
				Development of the Common Heritage of Mankind Principle
				Elements of the Principle
			6.5.4.3 Competences in the Area
				Competence of the ISA
				Competence of the States
					Sovereign Rights for the Adoption Treaties in the Area
					Regulations of Part XI UNCLOS Only Refer to Activities in the Area
					Application of the Regulations of the Water Column to the Seabed
						General Regulation on Water Column and Special Regulations on the Seabed
						Legal Status of Superjacent Waters Affects Legal Status of Seabed
						Freedom of the High Sea Prevails on Continental Shelf and Area
						Freedoms of the High Sea Traditionally Applicable to the Area
			6.5.4.4 Conclusion: The Area
		6.5.5 Continental Shelf
			6.5.5.1 Specific Sovereign Rights on the Continental Shelf
			6.5.5.2 Specific Obligation to Protect and Preserve the Marine Environment on the Continental Shelf
				For the Exploration and Exploitation of the Natural Resources
				Protection and Preservation from Pollution
			6.5.5.3 Obligation to Protect and Preserve the Marine Environment from Other Activities on the Extended Continental Shelf
				Varying Legal Regimes for Continental Shelf, EEZ and High Sea
				Activities on the Continental Shelf That Affect the Water Column (Carbon Sinking)
				Activities That Affect the Water Column and Continental Shelf (Bottom Trawl Fishing)
					Involvement of RFMOs
					Limitation of Art. 78 (2) UNCLOS
				General Obligation to Protect and Preserve the Marine Environment
					Freedoms of the High Sea Generally Apply to Continental Shelf
					No Application of the Sovereign Rights of the EEZ to the Continental Shelf
					No Distinction Between Inner and Outer Continental Shelf
			6.5.5.4 Conclusion: Continental Shelf
		6.5.6 Conclusion: Competence to Establish MPAs in the Zones of the Sea
		6.5.7 International Organisations
			6.5.7.1 International Organisations General
			6.5.7.2 Security Council
				Environmental Protection in Armed Conflicts
				Human Rights as Issues of International Peace and Security
				Human Right to (Marine) Environment
					Human Right to Environment in International Law
					Human Right to Environment Accepted by Relevant Organisations
					Human Right to Environment in National Jurisprudence
					Human Right to Environment in International Jurisprudence
				Conclusion: Security Council
	6.6 Specific Content, Minimum and Maximum Scope
		6.6.1 Specification of the Content
		6.6.2 General Predominance of International Rules and Standards Over National Laws and Regulations
		6.6.3 Competing Regulations
			6.6.3.1 Commensuration of Norms in International Law
				Harmonious Interpretation in Good Faith
				General Proportionality in Public International Law
				Specific Proportionality in the UNCLOS
					Subject to, Condition by and in Accordance with Regulation
					Due Regard, Good Faith and Unjustifiable Interference Regulations
					No Abuse of Rights Under Art. 300 UNCLOS
			6.6.3.2 Commensuration and Jus Cogens Regulations
				Harmonious Interpretation in Good Faith
				Normative Collision and Proportionality
			6.6.3.3 Application to the Obligation to Protect and Preserve the Marine Environment
				No Modification by the No-Sovereignty Principle
				Harmonious Interpretation in Good Faith
					No Ban of All Activities in the Sea
					Specific Content of the Obligation to Protect and Preserve the Martine Environment
					General Subordination of Other Rights Under the Obligation to Protect and Preserve the Marine Environment
						Hierarchy Subordinates Other Rights Under the Obligation to Protect and Preserve the Marine Environment
						Erga Omens Obligation to Protect and Preserve the Marine Environment Applies to State Exercising Activities in the Sea
						No Abuse of Rights Under Art. 300 UNCLOS
					Less Restrictive Measure to Comply with the Obligation Under Art. 192 UNCLOS
						Application to Large-Scale Fishing Techniques
							Global Moratorium on Bottom Trawling
							Impact of Other Large-Scale Fishing Techniques
							Less Restrictive Alternative
							Determination of Allowable Techniques Through Other Regulations
							Global Ban Necessary for Enforcement
						Application to Deep-Sea Mining
					Obligation to Cooperate: Engagement of the States Concerned
					Conclusion: Harmonious Interpretation
				Application of Art. 194 (4) UNCLOS to the Obligation to Protect and Preserve the Marine Environment
	References
Chapter 7: Special Regulations
	7.1 Art. 194 (5) UNCLOS
		7.1.1 Scope of Art. 194 (5) UNCLOS
			7.1.1.1 Geographical Scope
			7.1.1.2 Substantive Scope
				Not Limited to Pollution
				Ecosystems and Habitats
					Ecosystems
					Habitats
				Adoption of Legislation
			7.1.1.3 Personal Scope
			7.1.1.4 Obligation to Adopt Measures
			7.1.1.5 Establishment of MPAs Under Art. 194 (5) UNCLOS
		7.1.2 Unjustifiable Interference Art. 194 (4) UNCLOS
			7.1.2.1 Application to Art. 194 (5) UNCLOS
			7.1.2.2 Interference with Activities
			7.1.2.3 Unjustifiable Interference
				Extent of Interference
					Competence to Protect the Marine Environment in Different Zones
					Measuring the Extent of Interference
				Less Restrictive Alternatives and Engagement of Affected States
					Less Restrictive Alternatives: Low Impact Fishing Techniques
					Engagement of Specifically Affected States
				Nature of the Rights
					General Subordination of Other Rights Under Art. 194 (5) UNCLOS
					Nature and Importance of the Rights Infringed
					Application of Art. 194 (5) UNCLOS to All States
				Conditions by Specific Regulations of the UNCLOS
					Fishing in the High Sea According to Section 2 of Part VII UNCLOS
					Pollution from Vessels
					Freedom in the EEZ and the Obligation to Protect and Preserve the Marine Environment
				Burden of Proof
				Conclusion: Unjustifiable Interference with Fishing
	7.2 International Legally Binding Instrument for Biodiversity Beyond National Jurisdiction
	References
Chapter 8: Conclusion and Summary in Theses
	8.1 Conclusion
		8.1.1 Connection of Society and the Ocean
		8.1.2 Necessity of Law to Adapt to the Needs of Society
		8.1.3 Necessity of the Individual to Adapt to the Needs of Planet Earth
	8.2 Summary in Theses
	References