The Environmental Rule of Law for Oceans: Designing Legal Solutions

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