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

Sarah Ryan Enright

20.1 Ocean Governance and the Rule of Law

Governance depends on cooperation to succeed, building on partnerships and interactions across multiple domains and actors.¹ It is not a clear-cut notion, and is often characterized by flexibility and dynamism in contrast to the static structures usually associated with law.² Ocean governance is now a field in its own right reflecting the ‘need and desire to pursue a holistic, integrated, and/or cross sectoral approach to the management of the oceans’.³ It has been defined as ‘the way in which ocean affairs are governed, not only by governments, but also by local communities, industries and other “stakeholders”. It includes national and international law, public and private law as well as custom, tradition and culture and the institutions and processes created by them’.⁴ It is clear that law is an essential element of ocean governance given that the system created by the United Nations Law of the Sea Convention (UNCLOS)⁵ provides the overarching framework for management of the global ocean. Yet the precise relationship between the law of the sea and ocean governance remains contested, with the law of the sea naturally more concerned with legally binding norms.⁶

The field of ocean governance itself has become increasingly complex with a diverse array of laws, actors and institutions involved. UNCLOS divided the ocean into arbitrary zones (e.g., areas beyond national jurisdiction (ABNJ) versus areas under national jurisdiction), which are regulated under different regimes and subject to different management standards. These are essentially geo-political divisions and do not correspond with ecological boundaries, which tend to group similar species and habitats together, often as controlled by climatic and oceanographic parameters.⁷ This mismatch between the law of the sea and the ecological reality of the ocean has generated serious challenges from a rule of law perspective. It has been described as a ‘paradox with which lawyers have to grapple’⁸ and a ‘serious deficiency’ in ocean governance.⁹ Consequences include significant regulatory gaps¹⁰ and negative outcomes for ocean health.¹¹ Therefore, the ‘rule of law’¹² as it currently applies to the oceans is clearly far from satisfactory.

Some scholars have argued that elements of good governance, such as cross sectoral cooperation and coordination and science-based decision-making, could be engaged to enhance the existing legal framework.¹³ These ‘less politicized’ forms of governance are seen as offering a more holistic way to address the transboundary challenges particular to the marine environment.¹⁴ It has also been asserted that regional cooperation and coordinated responses are key for managing the transboundary reality of many activities and processes in the marine environment.¹⁵ This chapter will argue that regional cooperation has the potential to contribute to a more effective rule of law for the oceans by filling some of the gaps left by the ‘chronic fragmentation’¹⁶ of international ocean governance, especially if embedded within an overarching regional and global strategy.

First, the emergence of regional ocean governance as a subfield within the broader sphere of ocean governance will be introduced, along with its main implementing mechanisms, followed by a case study on State-led regional cooperation efforts in the Eastern Tropical Pacific to create the first transboundary network of marine protected areas (MPAs) in Latin America. Finally, specific rule of law challenges faced by this initiative will be discussed, such as the lack of a legally binding cooperation agreement, limited sectoral participation, the vast scale and the lack of a cohesive regional ocean governance framework in the region.

20.2 A Regional Approach to Ocean Governance

The international community has recognized the need for a move towards a more integrated approach to ocean management through its endorsement of the ecosystem approach.¹⁷ While implementation of the ecosystem approach in practice remains an ongoing challenge,¹⁸ regional ocean governance (ROG) efforts have shown promise by enabling cooperation and coordination across territorial and sectoral boundaries, which could help to link disconnected areas of regulation arising from fragmentation.¹⁹

The duty to cooperate regionally flows from the well-established general duty to cooperate in international law.²⁰ In the 1970s the notion that seas with multiple coastal States could be governed or managed regionally first appeared,²¹ and by 1982, a legal obligation to cooperate on a regional basis for the protection and preservation of the marine environment was explicitly included in the text of UNCLOS.²² The 1992 Convention on Biological Diversity (CBD) also promotes regional cooperation for the conservation and sustainable use of biological diversity.²³ The international community has continued to formally recognize the importance of regional levels of governance. For example, the 2030 Agenda for Sustainable Development underlines the importance of regional cooperation and coordination in order to achieve the Sustainable Development Goals (SDGs).²⁴ Enhanced ROG and a greater role for regional agreements has been proposed as a specific means of achieving the targets associated with SDG 14, which aims to ‘conserve and sustainably use the oceans, seas and marine resources’.²⁵ It has been recommended that regional seas should have a key implementing role in the Post-2020 Global Biodiversity Framework, given that they are in a ‘unique position to support States to achieve ocean-related elements’,²⁶ and it is also very likely that ROG will have increased prominence under a new international treaty for biodiversity beyond national jurisdiction (BBNJ), which is currently under negotiation.²⁷

From a global governance perspective, the main mechanisms for ROG at present include Regional Seas Programmes (RSP), Regional Fishery Bodies (RFB) and Large Marine Ecosystem (LME) mechanisms.²⁸ The RSP and RFBs are intergovernmental bodies made up of State parties, whereas LME mechanisms are usually projects that bring together coastal States of the LMEs, international agencies and regional bodies.²⁹ The United Nations Environment Program (UNEP) established the RSP in 1974 to serve as the mechanism for promoting cooperation among States sharing a common regional marine space.³⁰ For each RSP, an action plan serves as the basis for regional cooperation, and many also decide to adopt legally binding instruments and framework conventions.³¹ The framework conventions typically provide general terms and conditions and an overall direction for States to follow. However, they are usually too vague to lead to decisive actions, and parties must therefore negotiate specific agreements, known as protocols.³² The mandates of the different RSPs have evolved from an initial focus on pollution to encompass biodiversity conservation, particularly through the creation of MPAs.³³ Several RSPs have adopted a separate protocol for protection of marine biodiversity,³⁴ which require State parties, either individually or cooperatively, to establish protected areas for fragile and vulnerable ecosystems.³⁵

RFBs are regional mechanisms, established under UNCLOS, through which States cooperate on the sustainable use and conservation of marine living resources.³⁶ Considerable differences exist in the geographical mandates of RFBs, and they may cover both high seas areas and coastal maritime zones.³⁷ As with the RSP, the geographic scopes of the RFBs have been driven by a mix of scientific and political considerations and opportunism, rather than by a goal to demarcate ocean regions.³⁸ Regional Fishery Management Organizations (RFMOs) are a subset of RFB with a management mandate and the power to establish legally binding conservation and management measures, such as temporary closures.³⁹

These outlined approaches are complemented by other regional initiatives, such as those taken by political and economic organizations,⁴⁰ leaders and heads of State, non-governmental organizations, coastal communities and individuals.⁴¹ A recent global study of ROG arrangements found that the majority of regional arrangements are ‘indigenous’, meaning developed by the countries of the region as opposed to being promoted by an external agency.⁴² Given that most previous consideration of ROG has focused on the RSP and RFBs,⁴³ this discovery has important implications for ocean governance. The following sections of this chapter will focus on a case study of such an ‘indigenous’ regional cooperation agreement and its associated rule of law challenges.

20.3 Regional Cooperation in the Eastern Tropical Pacific Ocean

The decline of marine biological diversity worldwide, due to anthropogenic causes, has led to calls for more legally protected areas. International targets, which previously aimed for protection of 10 per cent of global waters by 2020, are due to be increased to 30 per cent by 2030 under the Post-2020 Global Biodiversity Framework.⁴⁴ Networks of MPAs,⁴⁵ including cross-jurisdictional boundaries, are now seen as increasingly necessary due to ecological connectivity between marine ecosystems.⁴⁶ Cross-jurisdictional coordination and regional cooperation are considered essential for their management.⁴⁷ The United States National Oceanic and Atmospheric Administration (NOAA) defines ecological networks of MPAs as ‘systems of core habitats connected by ecological corridors that are established, restored, and/or maintained to conserve biological diversity in systems that have been fragmented’.⁴⁸ Ecological corridors are therefore important tools in the creation of an effective network of MPAs. Regional organizations, such as the European Union, now require integration of ecological corridors into MPA networks.⁴⁹

The Eastern Tropical Pacific Marine Corridor (CMAR)⁵⁰ is regarded as a leading example of regional cooperation for the creation of a network of MPAs.⁵¹ It is located within the Eastern Tropical Pacific Ocean (ETPO), which has exceptional levels of biodiversity, unique oceanographic conditions and large numbers of endemic, native and migratory species.⁵² The proposed marine corridor encompasses the national waters, coasts and islands of Ecuador, Colombia, Costa Rica and Panama and contains five world-renowned MPAs: Galapagos (Ecuador), Cocos (Costa Rica), Coiba (Panama), Malpelo and Gorgona (Colombia) (Figure 20.1).

Figure 20.1. Proposed Eastern Tropical Pacific Marine Corridor (CMAR).

This map has been created for illustrative purposes only, and is based on the map available on the CMAR website at http://cmarpacifico.org/donde-trabajamos/pacifico-este-tropical. The official geographic delimitation of CMAR remains pending. Information provided by Ricardo Meneses-Orellana, CMAR Technical Secretariat

All of the MPAs, except for Gorgona, are UNESCO World Heritage Sites,⁵³ two are Ramsar Sites (Galapagos and Cocos)⁵⁴ and the International Maritime Organization (IMO) has designated Galapagos and Malpelo as Particularly Sensitive Sea Areas (PSSAs).⁵⁵ In further recognition of its biological value, CMAR was recognized in 2016 as an Ecologically and Biologically Significant Area (EBSA) by parties to the CBD, who considered it ‘important for the connectivity of species on their migratory routes and at other times of their life cycles (e.g., mating, birth, feeding)’.⁵⁶ Despite its immense ecological value, the region faces a number of governance challenges, including illegal, unreported and unregulated (IUU) fishing, overfishing, pollution and coastal development.⁵⁷ Climate change⁵⁸ and weak governance⁵⁹ are overarching, aggravating factors.

In response to these pressures, CMAR was formally established in 2004 by the San Jose Declaration (SJD),⁶⁰ a non-binding regional cooperation agreement signed by Ecuador, Costa Rica, Panama and Colombia. The Action Plan for 2019–2024 defines CMAR as ‘a regional initiative for conservation and sustainable use which seeks, via an ecosystem approach, the adequate management of the biodiversity, marine and coastal resources of the Eastern Tropical Pacific, through regional governmental strategies, jointly supported by civil society, nongovernmental organizations and international cooperation, with the MPAs of Cocos, Galapagos, Malpelo, Gorgona and Coiba considered core areas’.⁶¹

In order to achieve its objectives, the SJD provides for the establishment of a regional mechanism, made up of political and technical components. The political element consists of a Regional Ministerial Committee (RMC), which is made up of representatives of the Ministry of Environment of each State.⁶² It issues guidelines and supports the process of implementation politically in accordance with the conservation priorities for CMAR, the policies of each participating State and the relevant international framework.⁶³ It is the main decision-making body for CMAR.⁶⁴ The RMC meets once a year and its Presidency has a rotating character between the four participating States, each term lasting three years.⁶⁵ The Foreign Ministries of each State also play an advisory role with regard to matters of international relations between the States.⁶⁶ The technical component of CMAR is made up of a Regional Technical Committee (RTC), which is responsible for defining the actions needed to implement CMAR.⁶⁷ It meets twice a year and acts as the advisory body to the RMC. It is made up of a delegate of each State’s Ministry of Environment, who is often a director of one of the core MPAs.⁶⁸ In terms of decision-making, each State has one vote, yet all decisions are adopted by consensus.⁶⁹ The RTC is supported by a Secretariat in charge of carrying out CMAR management actions and coordinating cooperation between the four participating States and any involved international organizations and NGOs.⁷⁰

20.4 Rule of Law Challenges

MPA managers within CMAR territories have identified several limiting factors from a governance perspective, including overlapping or interfering jurisdiction between authorities, lack of coordination between authorities, lack of resources, lack of political will regarding conservation and institutional weakness in the government environmental sector.⁷¹ While these are issues impeding effective ocean and coastal management more generally in CMAR member States, the following discussion will focus on four specific challenges faced by the marine corridor itself.

20.4.1 Lack of a Legally Binding Agreement

CMAR is a voluntary, political initiative between four States and therefore not legally binding.⁷²

Voluntary, non-binding commitments have become a popular tool in international environmental governance, including in an ocean sustainability context.⁷³ They have been considered particularly useful in the context of transboundary governance, where competing sovereign interests can delay the negotiation of intergovernmental agreements.⁷⁴ As a political initiative, CMAR offers the possibility to harmonize national positions in the region with respect to marine environmental protection. On the other hand, the lack of any binding force has significant implications for compliance and enforcement. Voluntary commitments are often critiqued for lacking appropriate monitoring and evaluation strategies and not providing sufficient evaluation of their own effectiveness.⁷⁵ The lack of a legally binding agreement also implies no dedicated funding mechanism, which obviously impacts on critical issues such as institutional infrastructure, implementation and capacity for monitoring and enforcement. At a 2004 CMAR Regional Ministerial meeting, it was decided that the Secretariat would be funded by support from other interested governments, international organizations and NGOs,⁷⁶ creating circumstances that have not been conducive to financial sustainability. The Secretariat does not yet have a permanent physical infrastructure and currently rotates between each State every three years, concurrently with the Presidency. The State that exercises the Presidency covers the cost of operating the Secretariat with funds provided by that government’s budget or via international cooperation.⁷⁷ In acknowledgement of the weaknesses inherent in the current non-binding model, the Action Plan for 2019–2024 recommends evaluating the possibilities for transforming CMAR into a legally binding agreement.⁷⁸

20.4.2 Limited Sectoral Participation

Another governance challenge for CMAR is that it was not framed in a multi-sectoral manner from the outset. To create a level of sectoral engagement, Regional Working Groups and National Commissions are provided for within the structure of CMAR. The working groups cover five key thematic areas identified as priorities for conservation in the region (Tourism, MPAs, Science, Fisheries and Communications) and are made up of representatives from government institutions, NGOs, research and academia.⁷⁹ The purpose of the National Commissions⁸⁰ is to deal with any CMAR-related matters in a national context, and in conjunction with the working groups, incorporate the viewpoints of the different groups carrying out activities in the ETP.⁸¹ Yet the private sector is notably absent from both. CMAR has acknowledged that interaction with the fishing sector has been limited due to the restricted capacity of CMAR to take political or institutional decisions affecting this sector.⁸²

20.4.3 Scale

The scale of a project like CMAR involving transboundary marine management across four jurisdictions is a significant governance challenge. It is the first such undertaking in the region, and progress on formalizing the initiative has been slow due to the legal and institutional complexities involved in managing shared biological resources over such a large geographical area and the limited amount of resources available.⁸³ Given that the four CMAR States have already faced significant challenges in effectively managing MPAs within their national jurisdictions, it remains to be seen how this can effectively be done on a larger scale, especially in the absence of a wider supporting ROG strategy. CMAR has not yet been officially delimited from a geographical or jurisdictional perspective.⁸⁴ It is likely that the eventual delimitation of CMAR will only cover an area within the Exclusive Economic Zones (EEZs) of the respective member States, not the high seas pocket included in Figure 20.1.⁸⁵ This is due to the absence of a regional or internationally agreed legal framework with the power to establish protected areas in the high seas. However, the BBNJ negotiations, which aim to address such governance gaps, may result in a new international legal framework for the establishment of high seas MPAs.⁸⁶ The impact this may have on the ETP region remains unclear and will be discussed further in Section 20.4.6.

20.4.4 Fragmented Regional Ocean Governance

The wider ROG framework in the region is fragmented, with limited cross sectoral cooperation, differing membership compositions and varying mandates and geographic coverage. There is no RSP covering the Eastern Tropical Pacific region. While there is the Antigua Convention for the North East Pacific,⁸⁷ which was signed by Panama, Costa Rica, Colombia and several other Central American States in 2002,⁸⁸ it has not yet entered into force.⁸⁹ Out of the CMAR participating States, only Ecuador, Colombia and Panama are parties to the Lima Convention for the South East Pacific.⁹⁰ The Lima Convention applies to the territorial seas and the EEZs of its member States with a narrow mandate in the adjacent high seas, restricted to pollution.⁹¹ However, its Executive Secretariat, a role held by the Permanent Commission for the South Pacific (CPPS),⁹² has expressed a desire to expand its interests in the high seas.⁹³

The CPPS could be considered weak from a rule of law perspective. It has an advisory mandate only and no management authority.⁹⁴ This means it does not have the power to establish legally binding conservation measures such as MPAs. However, it has a lot of support in the region as a cross-sectoral coordinating mechanism.⁹⁵ For example, it has signed bilateral cooperation agreements for the purposes of improving conservation with competent RFMOs in the region, the Inter-American Tropical Tuna Commission (IATTC),⁹⁶ of which all four CMAR States are members, and the South Pacific RFMO,⁹⁷ of which Ecuador is a member and Panama is a non-contracting Party. Given the importance of the fishing sector in the region, this type of cooperation is a positive step forward, especially given that the RFMOs have a management mandate and the power to establish legally binding conservation and management measures.

However, in general, cooperation between the key actors within this region is not well developed and enthusiasm for enhanced collaboration is varied. For example, the Memorandum of Understanding between CPPS and IATTC expired in 2020 and cooperation efforts have since stalled.⁹⁸ IATTC has previously expressed concerns that cross-sectoral area-based planning initiatives may compromise its ability to adopt a flexible approach to species protection.⁹⁹ Given that fishing is a fundamentally important socio-economic activity in the region, there has been reluctance by some authorities to commit to sharing data and information on those resources.¹⁰⁰ Therefore, it is not surprising that at the time of adoption of the SJD in 2004, the creation of a new regional mechanism was criticized as premature prior to adequately exploring the scope for working with existing bodies in the region, such as the CPPS, navies and the fishing sector.¹⁰¹

20.5 The Road Ahead

A key challenge from a rule of law perspective stems from the overlaps and gaps in the mandates of the applicable governance arrangements in the ETP. Previous studies examining ROG arrangements in the ETP region identified ten different governance arrangements but with no overarching integration mechanism in place.¹⁰² It is arguable that CMAR emerged ‘indigenously’ as a response to the lack of an appropriate governance mechanism to facilitate transboundary marine governance in the region. However, it suffers from several of the same weaknesses that afflict ROG more generally, including a lack of interaction with important sectors such as fisheries, lack of resources and political instability among some participating States.¹⁰³ While bottom-up, State-led regional approaches such as CMAR do appear to engage more active participation of coastal States,¹⁰⁴ it is submitted that underpinning the marine corridor with a legally binding framework and integrating it within the broader ROG context would significantly strengthen CMAR.

CMAR has had limited interaction with other regional bodies operating in the region. However, cooperation efforts have increased in recent years. CMAR and CPPS have similar action plans and are currently working towards a cooperation agreement,¹⁰⁵ and there may be scope for a cooperation agreement with the IATTC in the future.¹⁰⁶ There have been calls for increased cross-sectoral cooperation in this region more generally, with a recent report recommending adoption of an agreement between the CPPS, IATTC and SPRFMO for the purposes of cooperating on data collection, data analysis, joint monitoring and enforcement actions in the Southeast Pacific.¹⁰⁷

Integration is of course challenging when the applicable ROG framework remains fragmented. It has been claimed that fixing problems of fragmentation in ocean governance requires attention to all levels of policy processes and all types of interaction, but especially coordinating ones.¹⁰⁸ For this reason, CPPS has been suggested as the best-placed institution to play an integrating role in the region given its long history of facilitating cooperation.¹⁰⁹ However, the fact that it does not cover the entirety of the ETP could be a sticking point.¹¹⁰ A clear benefit that CPPS offers is the institutional support provided by the RSP (which has an explicit mandate for marine biodiversity conservation) such as common regional frameworks for monitoring, assessing and reporting on the state of the marine environment, which can provide a useful baseline for tracking progress against globally agreed goals and targets, such as MPA coverage.¹¹¹ This, in turn, should help to encourage the development of a coherent regional approach to design and implementation of MPA networks. The RSP also provides a useful platform for regions to engage with global ocean governance processes via its association with a UN body; in this way it plays an essential linking role between global and national levels of governance.¹¹²

While the regional scale has been acknowledged as the most appropriate for the management of biodiversity elements such as networks of MPAs and highly mobile species,¹¹³ the new BBNJ instrument has the potential to help address some of the governance gaps in the ETP by introducing a legal mechanism at the global level for MPAs, which could potentially provide a legal basis for the designation of MPAs in ABNJ and a set of overarching governance principles to guide oversight and coordination of a global network of MPAs. While the final text of the treaty, and therefore the precise role of ROG organizations, remains under negotiation,¹¹⁴ it is understood that existing regional and sectoral ocean governance bodies, as well as cross sectoral cooperation and coordination, will have a critical role to play in its effective implementation.¹¹⁵ It has even been suggested that the new agreement should specifically recognize regional cooperative agreements, as part of an ecosystem approach.¹¹⁶ This makes sense given that ‘indigenous’, State-led regional arrangements such as CMAR have the potential to mainstream ocean sustainability horizontally at the national level and link upwards into the broader ocean governance field by applying globally and regionally agreed standards.¹¹⁷ Given the likelihood of increased visibility and roles for the regional level of ocean governance under BBNJ and the Post-2020 Global Biodiversity Framework, the time is ripe for a strengthening of existing ROG arrangements in the ETP, including CMAR itself, in order to enable the diverse range of applicable instruments to function as an effective, cohesive whole, in line with a ‘multi-level’, polycentric approach to governance.¹¹⁸

21 Oil Pollution Control Regulations in the Baltic Sea The Effect of Institutional Interplay on Implementation of the Ecosystem Approach

Kirsi White

21.1 Introduction

The importance of the ocean for safeguarding a habitable Earth system is key. This means that careful management of our Earth’s most valuable natural resource is central. This is a fact that has recently gained more recognition as global warming has become apparent with unprecedented extreme weather and climate events caused by climate change.¹ The importance of sustainably managing marine ecosystems is well recognised, and implemented in different policy instruments such as the United Nations Sustainable Development Goals² (the United Nations 2030 Agenda for Sustainable Development), the United Nations Convention on Biological Diversity 1992³ and the European Green Deal and the Biodiversity Strategy, aiming to halt the loss of marine biodiversity and to move towards a zero-pollution society.⁴ However, it has remained a challenge to halt the continuing degradation of marine ecosystems and to manage this global resource sustainably. Regardless of the awareness that regional regulation of the marine environment has been considered as key in addressing these challenges, and despite the long-standing efforts of institutions such as the Baltic Marine Environment Protection Commission (HELCOM), the ability to halt degradation of the marine environment at regional sea level has not been achieved.⁵ Therefore questions arise. What are the challenges facing the rule of law in ecosystem-based management of marine ecosystems? Are the current legislative measures in force such that they will strengthen the rule of law central to achieving sustainability and environmental goals to safeguard the marine environment?⁶ The aim of this chapter is to consider these questions in the context of the Baltic Sea, one of the world’s most regulated seas, with specific emphasis on regulation of ship source oil pollution. The first part of the chapter will briefly discuss the Baltic Sea marine environment and the concerns introduced by shipping in general. Then, consideration will be given to the current legislative framework to regulate oil pollution and the concept of the ecosystem approach in the fragmented and multi-layered legislative framework specifically at regional sea level.

The Baltic Sea is a small enclosed sea surrounded by nine nation States. Eight of these are Member States of the European Union – the Russian Federation being the exception. Anthropogenic pressures on the ecological status of the Baltic Sea are all prioritised in legislative frameworks at national, regional and European contexts as major environmental problems.⁷ There is a general trend in increasing global seaborne trade volumes, the Baltic Sea being no exception to this trend. Increasing traffic volumes will undoubtedly have an effect on the marine environment.⁸ Of the total annual tonnage of maritime transport globally, carriage of crude oil and oil products accounts for around 3,000 million tonnes.⁹ It is estimated that the number of vessels in the Baltic Sea is to double in the next twenty years, and that of oil-carrying vessels in particular, due to a predicted increase in demand for maritime oil transport. This increase will also be influenced by the European Commission introducing intermodal maritime-based logistics chains as a more sustainable and commercially efficient alternative to road-only transport (‘Motorways of the Sea’).¹⁰ The increase in maritime traffic volume as well as the increase in vessel sizes, added to sectoral competition for space in the already narrow and shallow Baltic Sea, will continue to challenge regulation of shipping activities and their effect on the vulnerable marine ecosystem.

Oil released from shipping into the Baltic Sea marine ecosystem occurs through intentional or negligent actions: emptying of tanks, bilge water dumping or accidents.¹¹ The International Maritime Organization (IMO) construction regulations on oil pollution have introduced vessel design features, as well as regulation for on-board requirements including adequate competency of seafarers,¹² and the ‘Shipboard Oil Pollution Emergency Plan’.¹³ Measures such as the phasing-out of single-hull construction of vessels¹⁴ and ‘Goal Based Standards’ for ship construction introduced by the International Convention for the Safety of Life at Sea (SOLAS), to regulate oil tankers and bulk carriers, encouraging innovation in ship design and promoting safety,¹⁵ have been considered by some as highly successful in regulating accidental oil pollution to date.¹⁶ As one of the most recent measures at regional sea level, accidental oil pollution from shipping is also managed through the introduction of ‘Traffic Separation Schemes’ and utilisation of ‘Ship Reporting Systems’.¹⁷ These measures take into consideration the specific typographic features of the Baltic Sea, which has also been established as among the ‘Particularly Sensitive Sea Areas’ (PSSAs) by the IMO to regulate ship-source pollution. PSSAs are areas requiring special protection by action through the IMO because of their significance for recognised ecological, socio-economic or scientific attributes, where such attributes may be vulnerable to damage by international shipping activities.¹⁸ The Baltic Marine Environmental Protection Commission (HELCOM) has compiled data on fifty-two different anthropogenic pressures affecting the Baltic Sea.¹⁹ Since monitoring started, there have been 4,420 illegal oil discharges and 216 other discharges.²⁰ The HELCOM Monitoring and Assessment Strategy outlines the core indicators that form the basis for marine environmental assessment in the Baltic Sea. In relation to oil pollution, the estimated oil introduced to the Baltic Sea is considered to be an indicator threshold value of a defined reference period. Oil contamination of the marine environment has been identified as one of the large-scale environmental problems in the Baltic Sea.²¹ As the Baltic Sea marine environment is a complex adaptive system, it should be regulated as a whole, rather than having different regulatory regimes for the different components.²² This is also recognised by the regional legislative measures currently in force, setting ecological targets as an objective, aiming to move away from sectoral management of the different marine ecosystem components. However, attempts to manage a large sectoral variety successfully through joint objectives has proven to be a challenge, as in order to achieve success, there must be an understanding of both ecosystem dynamics and socio-ecological interactions.²³ This understanding must be taken into consideration in environmental decision-making, and law plays a central role in interacting with socio-ecological resilience.²⁴

21.2 Ecosystem Approach in the Context of Baltic Sea Marine Protection

Central to the legislative instruments in force in the Baltic Sea regulating the use of aquatic systems, as with many global instruments on ocean management, is the concept of the ecosystem approach. As a feature of marine environmental protection, the ecosystem approach can be considered a fairly new concept. The first explicit utilisation was in 1980 in the Convention on the Conservation of Antarctic Marine Living Resources, recognising the importance of safeguarding the environment and protecting the ecosystem integrity of the seas surrounding Antarctica.²⁵ Ecosystem Based Management (EBM) is based on agreed indicators and reference points to monitor the status of the marine environment. As stated by the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea in 2006, ecosystem-based approaches to management require integrated information and knowledge within and among ocean sectors, which generally do not sufficiently exist. The current science knowledge base hinders more informed decision-making and implementation of EBM.²⁶ In relation to management of the marine environment in the Baltic Sea, it is apparent that it is not just ecological and social complexity hindering management but also lack of scientific interdisciplinary interaction to assess the risks. The multitude of institutions and fragmented policy instruments with a mismatch between the ecological processes of the marine ecosystem and the legislative framework hinders successful management of marine ecosystems.²⁷ The ecosystem approach is also a concept that is somewhat new in law, with some uncertainty as to how such a concept may be compatible with, and incorporated into, law.²⁸ EBM has evolved through non-binding soft law principles, with the result that implementation and application lack legal clarity. This can be seen as weakening the rule of law.

The central features of the ecosystem approach discussed in this section, which take into consideration scale dependency, scientific knowledge, participation and adaptive management, will be considered in Section 21.3 in relation to the legislative instruments currently in force in the Baltic Sea. This consideration is used to determine explicit or implicit evidence of the existence of EBM.

21.3 Ecosystem Approach in the Baltic Sea

International environmental protection has been characterised as ‘regime dense’,²⁹ and marine environmental governance is no exception – it consists of complex multilevel and multi-sectoral integration.³⁰ Regulation of the marine ecosystem in the Baltic Sea may be divided into three interrelated levels, including global governance (e.g., the International Maritime Organization), regional (e.g., the EU and HELCOM) and national (e.g., port authorities).³¹ Such multilevel governance structures are considered desirable in the Baltic Sea.³² The EU legislative provisions in relation to sustainable management of the marine ecosystem use the ecosystem approach, which is key to EU environmental policy. Central to EU marine law is achieving or maintaining set quality standards, such as the concept of ‘good environmental status’ through adoption of programmes entailing regular assessments.

21.3.1 United Nations Convention on the Law of the Sea (UNCLOS) and International Convention for the Prevention of Pollution from Ships (MARPOL)

The United Nations has been at the heart of developing the only global treaty framework for protection of the marine environment since the Stockholm Conference on the Human Environment in 1972.³³ The United Nations Convention on the Law of the Sea of 1982 (UNCLOS), which came into force in 1994 with the objective of codifying pre-existing treaties and conventions, may be considered the ‘constitution for the oceans’,³⁴ providing an authoritative framework for regulation of marine affairs.³⁵ UNCLOS is in force in the whole of the Baltic Sea, and all of the Baltic Sea States as well as the EU are parties to the Convention. The relevance of maritime zones for the Baltic Sea is that all of the sea areas are defined as ‘territorial’ or ‘exclusive economic zones’ of the coastal States that have jurisdiction over regulation and enforcement – there are no ‘high seas’ in the Baltic Sea. UNCLOS also stipulates that the ‘flag State’ has the main responsibility for ships flying their flag. In addition to regulating at global scale, UNCLOS gives specific consideration to regional seas, such as recognition and allocation of ‘Special Areas’ and ‘Special Sensitive Sea Areas’. EBM of the oceans is to be implemented holistically as stated in the preamble to the UNCLOS, ‘Conscious that the problems of ocean space are closely interrelated and need to be considered as a whole’. According to Article 197 State parties to the Convention must co-operate both globally as well as regionally when necessary, directly or through a competent international organisation to protect and preserve the marine environment. However, the maritime zones set by the Convention do not take into consideration maritime ecosystem boundaries.

The International Maritime Organisation (IMO), established by the Convention on the International Maritime Organisation of 1948, has been central to negotiation of the key legislative measures regulating all sources of shipborne pollutants. Regulating specifically shipping-induced oil pollution by introduction of technical standards is the International Convention on the Prevention of Pollution from Ships 1973 (MARPOL 73/78) as amended in 1978, coming into force in 1983 with the aim of regulating marine pollution caused by operational activities and accidents. Regulation of shipborne pollution in general differs from other sources of marine environmental pollution due to the IMO being the central regulator in this field of activity. Ecosystem-based management has been incorporated into MARPOL – it establishes ‘Particularly Sensitive Sea Areas’ based on ecological and socio-economic importance. In relation to institutional interaction within the legislative framework, it is noteworthy that IMO legislative measures have at times been influenced by and negotiated as a response to EU measures.³⁶ In relation to vertical fragmentation and governance of ship-source oil pollution, the UNCLOS 1982 and MARPOL 73/78 have been incorporated into regional seas conventions such as the Helsinki Commission (HELCOM), and into the national legislatures of the Baltic Sea nation States.³⁷ However, it is noteworthy that the EU has developed instruments regarding shipping control due to general dissatisfaction with the IMO regulations and the apparently weak connection to national maritime administrators, leading to broadly discretionary practices.

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

The Convention on the Protection of the Marine Environment of the Baltic Sea Area 1992 (the Helsinki Convention) came into force on 17 January 2000. With ten Contracting Parties, including all of the Baltic Sea States and the EU, it applies to the Baltic Sea only.³⁸ A key area in the work of HELCOM is addressing sea-based pollution sources.³⁹ Every ship entering the Baltic Sea is ‘urged’ to comply with the anti-pollution regulations of HELCOM, irrespective of the flag State or being a party to the Convention.⁴⁰ The convention text refers to MARPOL provisions but also includes specific shipborne pollution regulations, and is amended when necessary to take into consideration developments in international law (last amended 1 July 2014⁴¹). HELCOM also acts as the coordination platform regarding implementation of the Directive 2008/56/EC of the Parliament and of the Council of 17 June 2008 establishing a framework of community action in the field of marine environmental policy (Marine Strategy Framework Directive, MSFD), and the programme of measures under the Directive contributes directly to implementation of HELCOM agreements. The Contracting Parties also agreed in 2017 to use HELCOM as the coordinating platform for regional implementation of the UN Sustainable Development Goals related to the oceans. Assessment of the status of the environment, in terms of pressures as well as ecosystem components, is based on HELCOM core indicators, each of which have a set threshold value against which the current status is assessed – on an ‘achieved or ‘failed’ basis. HELCOM also introduces Recommendations, of which there are to date over 260.⁴² These usually reinforce international obligations with more detail in relation to implementation in the Baltic Sea.⁴³ Deployment of EBM is stated in the preamble: ‘Acknowledging, that the ecosystem approach is based on an integrated management of all human activities impacting on the marine environment and, based on best available scientific knowledge about the ecosystem and its dynamics, identifies and leads to actions improving the health of the marine ecosystem thus supporting sustainable use of ecosystem goods and services’.

The Baltic Sea Action Plan (BSAP), guiding the policy actions of HELCOM, was adopted in 2007. Its aim is restoration of good ecological status of the Baltic Sea marine ecosystem by 2021, by introducing innovative management approaches into policy implementation – including that of the ecosystem approach, and supporting the contracting States in fulfilling their national, European and international obligations. The BSAP refers to the ecosystem approach, integrated management, stakeholder participation and understanding interactions between social and ecological systems.⁴⁴ It has the specific goals of achieving a Baltic Sea unaffected by eutrophication, undisturbed by hazardous substances, having environmentally friendly maritime activities and favourable status of biodiversity. The BSAP also has detailed provisions for shipping activities. In relation to oil pollution of the marine environment from shipping, the objective is to stop illegal spills. Implementation of the HELCOM Recommendations is reported regularly, most recently being ‘Implementation of the Baltic Sea Action Plan 2018: Three years left to reach good environmental status’. The ecological objectives of the Action Plan, and that of reaching favourable conservation status of Baltic Sea biodiversity, a holistic controlling element, can only be achieved by taking into consideration all of the human activities affecting the Baltic Sea marine ecosystem. The Helsinki Convention has been seen as a catalyst for the MSFD,⁴⁵ discussed in more detail in Section 21.3.3.

21.3.3 Marine Strategy Framework Directive

The Marine Strategy Framework Directive, a goal-oriented legislative tool implementing EBM at regional sea level, was adopted in 2008 with the main objective of achieving ‘good environmental status’ of EU marine waters by 2020. Included in the Directive are eleven qualitative descriptors in Annex I, which will aid the Member States in their interpretation of what the term ‘good environmental status’ entails. Key in achieving good environmental status is the regulatory objective to protect marine biodiversity by establishing European marine regions and sub-regions. The Directive lists the pressures related to human activities on the marine environment, and is implemented in conjunction with detailed criteria and methodological standards, which guide the Member States in implementation,⁴⁶ using existing regional institutional structures in doing so. Each Member State is to develop a strategy specific to its own marine waters, also reflecting the overall perspective of the marine region or sub-region concerned (Article 11). The Directive thus also places importance on the BSAP as an already existing provision. The MSFD emphasises the importance of addressing all the human actions that have an impact on the marine ecosystem in order to succeed in conservation and sustainable use. The EBM is explicitly mentioned as a means of attaining the goals of the MSFD, in support of the priority to conserve ecosystem structure and function as well as resilience. The MSFD requires application of the ecosystem approach in the marine strategies of the Member States, and thus makes it a legally binding principle in the management of marine ecosystems.⁴⁷ The MSFD is a regulatory tool, which transitions marine governance from the national and supranational arenas towards the transnational arena of the regional seas,⁴⁸ emphasising cross-border and cross-sectoral integration. It aims to regulate the whole of the marine environment rather than just activities taking place in the Baltic Sea and introduces the concepts of ‘marine region’ and ‘regional co-operation’. The Directive creates an obligation to fulfil the requirements of certain international agreements and commitments related to protection of the marine environment from pollution such as the Convention on the Protection of the Marine Environment of the Baltic Sea Area.⁴⁹ To aid in uniform implementation of the Directive, the Commission passed a Commission Decision laying down criteria and methodological standards on good environmental status of marine waters and specifications and standardised methods for monitoring and assessment.⁵⁰ This was based on the need for a clearer, more coherent and comparable set of good environmental status criteria and methodological standards, which became apparent after the first implementation cycle. As to implementation of the MSFD and the BSAP, this is addressed in parallel,⁵¹ and due to the complementarities between these two, the BSAP was seen as a pilot providing the experience on which to build the MSFD.⁵² The MSFD may be considered key in the EU delivering on its global commitments on marine environment protection.⁵³

21.4 Institutional Interplay and the Ecosystem Approach

As discussed previously, the ecosystem approach in marine policy was initiated at global level and further adopted in marine ecosystem regulation by the UN Law of the Sea, as well as the EU in its marine policy and regionally by HELCOM through its Baltic Sea Action Plan. This adaptation has been influenced by institutional interaction between regimes. Successful implementation of EBM in achieving the objective of reducing concentrations of hazardous substances close to natural levels by keeping to a minimum the release of oil into the marine environment in accordance with the Baltic Sea Action Plan and the Marine Strategy Framework Directive⁵⁴ is dependent on integrating this concept in policies, and linking regional governance to a global framework.⁵⁵ It is also of importance to consider the interlocking structure of international governance institutions and EU legislative instruments.⁵⁶ As the legislative instruments discussed previously do not function in a vacuum, the success of multilevel arrangements is influenced by horizontal and vertical interplay, as well as integration of non-member States of the EU.⁵⁷ Therefore, it is also of importance to consider the influence of one institution on another in the Baltic Sea. Institutional interaction may create synergy, or it may undermine or disturb the effectiveness of policies.⁵⁸ Resultant links between institutions may generate consequences that are benign, such as regional regimes, which gain strength from being nested into global regimes. Such interaction between regional and global institutions in relation to shipping governance in particular may be essential but has not received enough attention in academic discussion.⁵⁹ Thus, in order to appreciate the conditions required for legitimate and integrated marine governance arrangements in the Baltic Sea, a key to understanding is the multi-level dynamics of marine governance, the institutional setting where these policies are developed and implemented, and interaction between institutions.⁶⁰

Institutional interplay has been recognised as an important feature of global environmental governance since 1998,⁶¹ and the effectiveness of a specific institution is a culmination of its own features as well as its interaction with other institutions.⁶² International regimes and organisations, as well as the EU, may be considered institutions that involve States as the main actors addressing issues in specific areas.⁶³ The term ‘institution’ may be defined to include international regimes and organisations as well as EU legislative instruments. Institutional interplay may be defined as one institution affecting the contents, operations and consequences of another.⁶⁴ It refers to a causal relationship between two institutions where the ‘source’ institution exerts influence on the ‘target’ institution,⁶⁵ affecting its development or performance. Institutional interplay may also cluster around certain issues and institutions jointly addressing a particular problem, as is the case with oil pollution control, contributing to the effectiveness of governance in that specific area.⁶⁶ Institutional interplay may take the form of horizontal or vertical interplay, where the former is interplay between institutions at the same level of governance, and the latter concerning the interaction between global and regional institutions. In considering the institutional interplay of the regimes, the conceptual framework developed by Oberthür and Gehring, where there is no implication that influence runs back and forth between institutions, but where the causal influence implies that influence runs unidirectionally from the source to the target, is deployed.⁶⁷ Thus, in order to establish a causal relationship there must be a source institution and its rules establishing influence, a target institution and a specific issue area subject to the influence of the source institution, as well as unidirectional causal pathways connecting the institutions.⁶⁸ Interplay through cognition, as one of the three forms of interplay identified by Obenthür and Gehring, is a transfer of knowledge and ideas taking place in the agenda-setting phase and during implementation from one institution to the other. In the case of more complex interplay through cognition, joint learning and development of converging policies in the different institutions may result. The second type of interplay is through commitment, where one institution affects the decision making of another by normative commitments. In overlapping issue areas commitments of one institution will result in a change of preference in the other, leading to different outputs. This is a type specifically relevant to nested institutions such as the IMO and the EU, interdependent in regulating environmental aspects of shipping. The EU may not have formal control of the IMO but may influence it due to overlapping regulations and compliance procedures in place. Finally, interplay through compliance is present in the implementation phase, when institutions have overlapping issue areas, and where the output of one institution effects a behavioural change further altering implementation and resulting in behavioural change in another institution. If an additional means of implementation is activated by diffusion of an obligation between institutions with similar identical objectives, this will increase the effectiveness of both institutions involved. Institutional interplay also has an effect on implementation of the ecosystem approach to management in the Baltic Sea.

Regarding the ecosystem approach in marine management, cognitive interplay was initiated at international level as discussed previously and evolvement of which is evident between the MSFD and the HELCOM BSAP, as the MSFD was based on knowledge contained in the BSAP. Cognitive interaction is also clear between the EU and the HELCOM BSAP in relation to the MSFD,⁶⁹ the MSFD being influenced by the HELCOM BSAP, and based on its existing knowledge. The MSFD is clear on the requirement of ecosystem-based management. The difference in learning between organisations may have an effect on how a concept such as the ecosystem approach to management may form during the process.⁷⁰ Interaction through commitment plays an important role within nested institutions such as the IMO and the EU as a commitment within one affects the decision making process in the other.⁷¹ In the Baltic Sea the ecosystem approach has generated synergies due to transforming the non-binding recommendations of HELCOM into EU law through the MSFD. Institutional interaction through compliance in relation to the IMO and the EU manifests in binding standards⁷² and their enforcement mechanisms,⁷³ by implementation of IMO obligations into EU law, creating synergies. For shipping regulation, interplay through compliance of IMO regulations and the EU is of utmost importance. The institutional interplay between the IMO and the EU has been affected by recognition of the pressing need to protect the Baltic Sea with more urgent measures than IMO procedures may accommodate, and different EU initiatives have led to more stringent shipping standards. In addition, unilateral EU initiatives have influenced formation of decentralised institutional complexes as part of institutional interplay management. The institutional interplay between the HELCOM BSAP and the EU Strategy for the Baltic Sea Region (EUSBSR) can be seen from the aforementioned strategy’s BSAP implementation recommendation. Thus, it may be argued that the distinctive institutional features present in the Baltic Sea make regional marine governance particularly suited to conducting knowledge-building and capacity-enhancement in the international governance system for shipping. This may be considered a regime ‘niche’ that a regime can specialise in within a larger institutional complex.⁷⁴

21.5 Reflections and Suggestions for Improvement

International legislative measures have been considered traditionally as the most efficient in regulating global sectors such as shipping. The current legislative measures in force regulating marine ecosystems have introduced a more holistic management approach, moving away from a top-down sectoral approach with the aim of managing the marine ecosystem as a whole. Fragmented management at regional sea level, with different sectors having their own independent and different governance arrangements, may have hindered successful implementation of the ecosystem approach into legislative measures safeguarding marine ecosystems. Therefore, it is the development of institutional interlinkages between polycentric governance arrangements that may facilitate common policy objectives, decision-making and implementation of sectoral measures in support of the ecosystem approach. In relation to ship source pollution, the core problem with the IMO has been considered to be its weak connection to national maritime administrators, leading to broadly discretionary practices.⁷⁵ In shipping, regionalisation may enable dynamic interplay and synergies between the IMO and EU shipping regulations: and it is this synergy that can be described as complementary with each other.⁷⁶ The use of ‘soft’ modes of governance has become central in the globally centralised regulation of ship-source oil pollution, which leaves practical implementation and enforcement to the individual States. This as such may weaken the rule of law. However, use of these modes is of specific importance in a polycentric governance system as a tool for steering policy implementation by introduction of innovative practices, learning and co-ordination. The role of non-governmental organisations (NGOs) and port authorities in regulating oil pollution may be considered key, as well as stakeholder-inclusive collaborative learning platforms at the regional (or sub-basin) level, with a clear mandate and aim of spatially relevant dynamics.⁷⁷ Key to management of the Baltic Sea marine ecosystem is institutional interaction, reinforcing international and European governance by activating an additional layer of enforcement by the actors involved to realise their desired objectives.⁷⁸ Thus, success in implementing EBM in the Baltic Sea is influenced by the involvement of stakeholders, as this may help inconsistencies in implementation of legislative measures by way of bottom-up initiatives in the existing framework created by ‘top-down’ enabling legislation. The often-wide discretion of implementing EBM may well benefit from regional regulation and soft law instruments. Therefore, regional regulation in the Baltic Sea may be utilised as an implementation tool bringing added value through local implementation;⁷⁹ in this the EU occupies a central role, which is also apparent from the institutional synergies present. It is these synergies, which may be described as complementary to each other, that have the potential to fill possible regulatory gaps.⁸⁰ Regional institutions may be seen as having a key role in strengthening international regulation of oil pollution based on IMO regulations. Regional regulation of this global environmental threat may also be central to strengthening the rule of law by enabling enactment and implementation of enforceable and effective legislative measures.

22 The International Law of the Sea and Arctic Governance Paving the Way to Integrated Ecosystem-Based Marine Management

Andrey Todorov

22.1 Introduction

The existing framework for Arctic Ocean governance is an excellent example of the law of the sea as a legal framework, which, on the one hand, supports stability and predictability in regional relations and, on the other hand, has to evolve in tune with emerging challenges and structural changes. By endorsing the 2008 Ilulissat declaration,¹ the five Arctic coastal States – Canada, the Kingdoms of Denmark and Norway, Russia and the United States – agreed that an extensive international legal framework applies to the Arctic Ocean. This framework, with the 1982 United Nations Convention on the Law of the Sea (UNCLOS²) at its core, provides the basis for orderly settlement of any potential overlapping claims and the main types of ocean use. Since the Arctic Ocean consists of both areas under sovereignty and jurisdiction of the coastal States and areas beyond national jurisdiction (ABNJ), UNCLOS is crucially important for defining the rights and obligations of the Arctic coastal States and non-regional States, as well as for regional cooperation.

However, the existing concept of management of marine use, which is the same for the Arctic maritime areas as for the rest of the world ocean, is facing a crisis. As anthropogenic pressure and threats stemming from climate change increase, traditional management of ocean resources is widely considered insufficient and ineffective.³ This gives rise to a clear global trend to replace conventional sectoral regulation of different maritime activities with a more holistic approach known as Integrated Ecosystem-Based Marine Management (IEBMM).⁴

In this context, the Arctic is also on the threshold of a paradigm shift. Due to climate change and sea ice decline, the Arctic Ocean⁵ is becoming more accessible, with new shipping lanes opening for trade and tourism, opportunities for fisheries and the mining industry multiplying. The negative side of the same processes consists in new challenges to the safety of life at sea, a fragile environment and the local population, resulting from oil spills, ship collisions, overexploitation of living resources and so on. Accordingly, new legal instruments are being introduced: the Polar code,⁶ which provides standards for safety at sea and pollution prevention in the polar seas; the first three binding agreements under the auspices of the Arctic Council (AC);⁷ and others. But are these instruments sufficient for the Arctic region today to keep up with constant changes and challenges?

The main purpose of this chapter is to discuss how the instruments and tools of the IEBMM could be used to improve ocean governance in the Arctic. Given that the ecosystems of the Arctic are cross-boundary and include waters under the national jurisdiction of two or more Arctic States, as well as ABNJ,⁸ the key rule-of-law question to be addressed in this regard is how to ensure that IEBMM-related tools and measures are adopted and enforced in a holistic cross-border manner in full compliance with international law. While the waters within 200 nautical miles (nm) and continental shelf fall within the national jurisdiction of the Arctic coastal States, whose competence to adopt and enforce binding decisions with respect to these marine areas is not disputed, a number of freedoms and rights are enjoyed by all States in the vast ABNJ in the region that can be restricted only in limited cases and through relevant international mechanisms. Other important problems to address are finding the best way of engaging third States in implementing regional IEBMM tools for ABNJ and achieving the cross-sectoral nature of the regulations.

The second section of this Chapter gives a brief overview of the concept of integrated ecosystem-based marine management, as well as the challenges it implies specifically for ABNJ. The third part provides a comparative study of how IEBMM tools (in particular, creation of marine protected areas) are implemented in other regions with a focus on those regional mechanisms that to some extent have succeeded in implementingthe IEBMM in ABNJ. Despite the unique challenges of the Arctic Ocean, some achievements of other regional instruments in implementing the IEBMM could be valuable for the Arctic. Therefore, an attempt is made in the fourth part to refer the results of the comparative study to Arctic Ocean governance. The work concludes with some recommendations on possible ways forward.

22.2 Integrated Ecosystem-Based Marine Management

The concept of integrated ecosystem-based marine management has evolved as an alternative to the traditional sector-by-sector approach, where each type of human activity is managed separately.⁹ Ecosystem-based management is a place-based approach, focusing on a specific ecosystem and the range of human activities affecting it, rather than considering single industries or species in isolation. This entails cross-boundary and cross-sectoral regulation of all types of economic activity in certain sea areas, where they might result in negative impacts on the marine environment, and development of a holistic strategy for all parties and industries concerned. IEBMM is implemented through different tools: key among these are Marine Spatial Planning (MSP), Marine Protected Areas (MPAs) and Ocean Zoning (OZ).¹⁰

Implementation of IEBMM requires solution of several major legal and organizational questions. The boundaries of ecosystems do not, as a rule, overlap with the boundaries of national jurisdiction of coastal States. The zonal approach enshrined in the UNCLOS implies a variable balance between coastal State sovereignty and jurisdiction, and third-State rights and freedoms. Thus, relevant policies of IEBMM in various sea areas with different legal status and regime should be coordinated. Most of the efforts to develop IEBMM deal with areas of national jurisdiction (within 200 miles)¹¹ and therefore require either commitment by one coastal State or cooperation between several neighbouring coastal States. However, the case of the Arctic Ocean is a special one since it covers the vast ABNJ. Consequently, a crucial challenge in this regard is how to make regional measures in ABNJ binding and ensure compliance by non-Arctic stakeholders.

UNCLOS contains provisions that oblige all States to prevent marine environmental pollution (in particular, Articles 192, 196). These obligations are supplemented by the provisions of the 1992 Convention on Biological Diversity,¹² which set out the responsibility of States to cooperate for the sustainable use of biological diversity, including in ABNJ (e.g., Articles 3,4, 7). However, there is a condition that regional agreements are not to affect the basic principles of the UNCLOS (Article 311), including freedom of the high seas, without the explicit consent of the States concerned. Members of regional mechanisms can establish a regime modifying the common legal framework, thus restricting freedom of the high seas for those persons subject to their respective jurisdiction. Nevertheless, they are not entitled to limit the rights of third States absent their express consent.¹³

This challenge could to some extent be addressed through different global management organizations, which are allowed to adopt decisions related to ABNJ, binding on all States. However, the mandates of relevant international bodies are fragmented and may be considered insufficient for an effective IEBMM.¹⁴ There is no clear answer to the question how ecosystem-based policies are to correlate with measures developed by sectoral international organizations.

The problem of IEBMM has been the focus of growing attention from global international organizations. The most comprehensive effort came from the United Nations, which launched negotiations on a possible new UNCLOS implementing agreement related to biodiversity in marine areas beyond national jurisdiction (the BBNJ Agreement). Although many complicated issues have not been resolved so far,¹⁵ the BBNJ Agreement could be a major contribution to establishing a global framework for the implementation of IEBMM, creating a set of unified principles for this purpose.

22.3 Regional Experience

It should be noted that the Arctic does not play a pioneering role in terms of implementing the concept of IEBMM on the regional level. Yet, although some regions have achieved significant progress, the IEBMM concept has been applied mainly to areas within national jurisdiction. Only a few regional organizations have developed IEBMM tools in marine ABNJ.¹⁶ For the purposes of this chapter, it would be useful to look into the experience of some of these regional mechanisms to identify optimal responses to the questions raised in this study (engaging third States in implementing IEBMM regulations for ABNJ and achieving the cross-sectoral aspect of such regulations) in the context of Arctic governance. Special focus is on the practice of using such IEBMM tools as designation of MPAs, for it has been successfully implemented in the ABNJ in some regions.

22.3.1 CAMLR Commission

The Commission for the Conservation of Antarctic Marine Living Resources (CAMLR Commission) is a regional organization in the Southern Ocean acting within the framework of the 1980 CAMLR Convention.¹⁷ Though the CAMLR Convention is an independent international instrument managing the living resources of the Antarctic, it is an integral part of the Antarctic Treaty System (ATS). It is important to note that, taking into account the special status of the Antarctic, the overwhelming majority of marine areas within the CAMLR Commission mandate constitute ABNJ.¹⁸

The South Orkney Islands MPA established in 2009 by a decision of the CAMLR Commission became the first MPA in world history to cover ABNJ.¹⁹ All types of commercial fishing activities, dumping of any type of waste and trans-shipment activities are prohibited within the area. This makes it an MPA with one of the highest levels of protection in the world.²⁰ In 2017 a decision of CCAMLR came into effect establishing another MPA in the Ross Sea, which is the largest marine protected area in the world and covers zones with different levels of protection with the aim of conserving krill resources.²¹ The CCAMLR has also developed proposals for MPAs in other regions of the Southern Ocean.²²

It is clear that the CCAMLR has significantly contributed to the promotion of IEBMM and marine spatial planning. However, this is possible not least because of the special status of the Antarctic region. Being an integral part of the Antarctic Treaty System, which to a large extent represents lex specialis towards the provisions of UNCLOS²³ and was designed as an integrated framework, the CCAMLR holds a broad mandate, including adoption of legally binding decisions related to marine ABNJ. This gives the ATS and CCAMLR a significant advantage in promoting integrated ecosystem management.²⁴ Since most of the marine areas of the Arctic are governed by UNCLOS with the traditional sectoral approach and significant freedoms of States in ABNJ are implied, the experience of the CCAMLR and ATS could hardly be considered relevant for the Arctic.

22.3.2 Mediterranean Instrument

Another quite efficient regional mechanism is the Mediterranean instrument run under the UNEP Regional Seas Program and based on the 1976 Barcelona Convention²⁵ and Protocols thereto. The Barcelona Convention also applies to ABNJ (high seas) until all of the coastal States in the region establish their EEZ.²⁶ In 1999 in Rome, France, Monaco and Italy concluded an agreement for the establishment of a sanctuary for marine mammals (PELAGOS Agreement²⁷) in the form of SPAMI. Today it is the only MPA in the Mediterranean to cover ABNJ (potential EEZ).²⁸ Any taking of marine mammals (except for the purpose of scientific research) is prohibited in that MPA (Article 7a of the PELAGOS Agreement), along with some other human activities (in particular, high-speed vehicle competitions – Article 9). Parties are to take measures to prevent marine pollution (Article 6).

Although the experience of the Barcelona mechanism could seem useful in terms of applying IEBMM in ABNJ in the Arctic, a specific feature of the Mediterranean Sea considerably distinguishes it from the Arctic Ocean – namely, the distance between the opposite coasts in the Mediterranean does not exceed 400 nautical miles. To date, not all of the coastal States bordering the Mediterranean Sea have claimed EEZ\CS,²⁹ leaving some ABNJ. Still, this situation implies that in case (if, or rather– when) all coastal States establish their 200 nm EEZ, there will be no ABNJ. Legally, this would mean the extension of national jurisdiction of coastal States, related to protection and conservation of the marine environment, to the entire Mediterranean Sea, thus eliminating one of the main challenges to IEBMM – namely, the legality of imposing regulatory measures on third States in ABNJ. The Law of the Sea furnishes coastal States with sufficient rights and jurisdiction to adopt and enforce measures related to protection of the marine environment within EEZ (e.g., Articles. 56, 211, 216, 234). Moreover, the fact that the total area of the Mediterranean Sea is covered by national jurisdiction makes it redundant to coordinate regional IEBMM measures with relevant global organizations such as the International Maritime Organization (IMO), or the International Seabed Authority (ISA). Therefore, inter-organizational coordination in the Mediterranean, in reality, is limited to ad hoc cooperation with the General Fisheries Commission for the Mediterranean.³⁰ Since the Arctic Ocean is not entirely covered by 200-nm zones of the coastal States, it is practically impossible to form a regional mechanism in the Arctic similar to that of the Barcelona model.

22.3.3 OSPAR

In contrast, the OSPAR model seems to perfectly fit the criteria of the Arctic Ocean. The 1992 OSPAR Convention³¹ covers various economic activities in the North-East Atlantic that could have adverse effects on marine ecosystems and biodiversity. However, the Convention provides two major exceptions from OSPAR’s jurisdiction – fisheries management and certain limitations for the regulation of shipping. OSPAR has made great efforts to implement IEBMM tools in ABNJ, given that the North-East Atlantic is not entirely covered by national jurisdiction zones of coastal States. OSPAR has its own MPA Network, which covers 5.9 per cent of the OSPAR Maritime Area,³² including ten MPAs beyond the EEZ of its parties.³³ Some MPAs seek to conserve the biological diversity of the seabed and superjacent waters, while others aim to conserve the biological diversity of the water superjacent to the sites.³⁴

A solution by the OSPAR mechanism (the OSPAR Commission) of the key challenges of the IEBMM in ABNJ, raised in this chapter, seems to originate from its commitment to active cooperation with regional and global sectoral organizations and mechanisms governing different maritime activities. The OSPAR Commission has signed memoranda of understanding (MoU) with The North East Atlantic Fisheries Commission (NEAFC), ISA, the IMO and other organizations.³⁵ Close coordination with these institutions provides the OSPAR Commission with a range of important benefits. First, this enhances the legitimacy of OSPAR’s regulatory measures in ABNJ, in particular aimed at marine environmental protection. The IMO and ISA have indisputable authority to legally restrict different sectors of States’ marine use, including in ABNJ. The same effect is achieved by cooperation with NEAFC, which can legally impose measures on third States under the 1995 Fish Stock Agreement³⁶ (inspections of fishing vessels and putting on the blacklist of IUU fishing).

Second, active collaboration with sectoral organizations enables the regime to achieve a cross-sectoral effect. While shipping and fisheries fall outside the OSPAR regulatory regime, coordination with the IMO and NEAFC fills this gap. The ISA mandate to regulate exploitation of mineral resources of the Area also takes precedence over regional efforts, so that coordination with ISA increases the efficiency of regulations adopted by OSPAR.

And finally, this provides a great possibility to engage a wide range of third States. Membership of global international organizations, such as the IMO or ISA, is much wider than that of any regional mechanism. Coordination with these organizations enables the OSPAR Commission to indirectly involve States non-parties to the OSPAR Convention in regulation related to ABNJ. The legitimacy of the duty to comply with the measures developed by these international organizations is indisputable for the States parties thereto. On the other hand, a difficulty that may arise in this respect is coordination of measures in the region for a State that is a party to different international organizations in case the decisions of these organizations are not harmonized between each other.³⁷

22.4 Possible Solutions to IEBMM Challenges in the Arctic Ocean

The experience of other regional instruments dealing with IEBMM, including in ABNJ, allows us to propose the following measures related to implementation of IEBMM in the Arctic region.

22.4.1 Efficient Regional Management Organization

The efficiency of a regional mechanism depends to a large extent on the efficiency of its main body responsible for carrying out the entire workload related to IEBMM. This implies that there should be a strong executive body endowed with a wide mandate to implement IEBMM measures – whether it is the OSPAR Commission or the CCAMLR.

As is widely acknowledged, the main intergovernmental forum for regional cooperation in the Arctic is the Arctic Council. Since its establishment in 1996, the AC has considerably contributed to collaboration among the eight Arctic States with the active involvement of third States-observers and representatives of Arctic Indigenous Peoples. The focus of its work has been protection of the marine environment and sustainable development of the region. Under its auspices, three legally binding agreements have been signed.³⁸

Despite some progress achieved by the AC on IEBMM-related issues,³⁹ today the Arctic Council is facing serious challenges. Put in a nutshell, these relate to the following:⁴⁰

• – legally, the AC is not an international organization and is not allowed to adopt legally binding decisions – a significant impediment for implementing the tools of a regional IEBMM;

• – the AC suffers from a lack of proper instruments for measuring the effectiveness of numerous projects and programmes the AC undertakes;

• – funding is inadequate: almost all projects are funded on an ad hoc basis by the States who advocate for them, but the AC has insufficient programmatic and discretionary funding;

• – issues of environmental protection outbalance the problems of sustainable development.

This gives room for fears that the AC would not be able to succeed in promoting the concept of IEBMM in the Arctic⁴¹ and lead the AC further away from the OSPAR model. However, it would surely be easier to work with existing instruments than to create new ones from ground zero. Proceeding from that assumption, there is a compelling need for significant expansion of the competence and mandate of the AC and its bodies. In particular, this would imply moving towards endowing the Arctic Council and its Secretariat with international legal personality; establishing a subsidiary body with a broad mandate comparable to that of the OSPAR Commission, or transforming the Secretariat into an ‘Arctic Council Commission’; authorizing that subsidiary body to initiate discussions on relevant issues in the decision-making bodies of the Arctic Council (Ministerial meetings); a substantial increase of financing of the subsidiary body (the ‘AC Commission’).

22.4.2 Coordination with Sectoral Organizations

The experience of OSPAR and other regional mechanisms shows that the most effective and legitimate (if not the only) way to ensure the cross-sectoral synergy of regulative measures is to cooperate and coordinate efforts with global international organizations responsible for different types of marine use. The most rapidly growing sector of marine activities in the Arctic is shipping. This has drastically risen in the region over the past two decades and is expected to intensify further as northern routes become increasingly accessible.⁴² Bearing that in mind, in the short-term period Arctic States (through the Arctic Council) will need to develop a joint position in the IMO. This is not a new challenge for the AC, though. For instance, the AC supported the work on a legally binding Polar Code, negotiated within the framework of the IMO, which is reflected in the decisions of Ministerial meetings.⁴³ However, technically the initiative in the IMO was put forward by individual members of the AC.⁴⁴

The process of coordinating positions in global organizations is not settled among the AC member States. Notably, the relatively successful implementation of IEBMM tools by OSPAR relies not least on cohesion and a spirit of shared interest among the States-parties.⁴⁵ However, for the AC it could be a hard task to fulfil, mainly due to a lower level of members’ cohesion in the AC compared to OSPAR.

As far as other sectoral organizations are concerned, the urgency of coordination is less evident. Emergence of the Area in the Arctic Ocean governed by ISA directly depends on accomplishing the process of establishing coastal States’ extended continental shelf. Since this process takes much time, collaboration with ISA is an issue of a more distant perspective. Issues relating to conservation and regulation of fisheries in the central part of the Arctic Ocean could be partly dealt with within the framework of the 2018 Agreement on prevention of unregulated fisheries on the high seas in the Central Arctic Ocean,⁴⁶ which directly or indirectly involves (through participation in the EU) all member States of the AC and major non-Arctic fishing powers (China, the EU, Japan, Iceland, South Korea). In future, the agenda could include cooperation between the AC and NEAFC over a small area in the central part of the Arctic Ocean, covered by the NEAFC’s mandate.

22.4.3 Greater Involvement of Non-Arctic States

As mentioned previously, in order to ensure that the IEBMM mechanism works well in the entire Arctic region, including in ABNJ, where non-regional States enjoy certain freedoms and rights, it should engage a wide group of non-Arctic stakeholders. Certainly, cooperation of the Arctic regional mechanism with global and regional sectoral organizations would contribute to resolving this problem, since their membership is much broader than that of the Arctic Council. But apart from that the AC has another powerful resource to tackle this challenge – the pool of its observer States.

To date, thirteen non-Arctic nations as well as twenty-seven international and non-governmental organizations are observers to the AC. Observers are invited to meetings and other activities of the Arctic Council and contribute to its work primarily at the level of working groups.⁴⁷ However, the role of observers has recently become an issue of major concern both for the Arctic States and for third countries. The scope of their capabilities in the AC is significantly limited. They may, at the discretion of the chair, make statements after the Arctic States and Permanent Participant. Observers are not entitled to participate in the decision-making process and to propose projects independently, while total financial contributions from all observers to any given project may not exceed the financing from Arctic States.⁴⁸ What is more important in relation to IEBMM: observers are not invited to participate in negotiations of legally binding agreements under the auspices of the AC. All three agreements mentioned here were signed by the eight Arctic States only. Though the 2018 Fishery Agreement for the Central Part of the Arctic Ocean was negotiated with non-Arctic States, it was concluded outside of the AC. Few observers seem to be satisfied with their position in the Council, with some of them calling for greater transparency, better communication and more opportunities to engage in the work of the AC.⁴⁹

Limitations on the role of observers may be largely motivated by fear on the part of the ‘Arctic Eight’ to surrender to non-members too much influence over Council activities. On the one hand, this is a natural concern on the part of regional nations. But on the other, the AC could make better use of its observers to implement IEBMM measures for the Arctic Ocean. This could facilitate engagement of third States in implementing decisions developed by the AC or within other regional fora, as well as in promoting joint initiatives in international organization, provided that observers are more intensively involved in discussion and development of recommendations within the working bodies of the AC. To start with, the Arctic Council could consider promoting global awareness of issues related to sustainable development of the Arctic and polar competence-building in the observer States.

22.4.4 Coordination of Research Efforts in the Arctic

One of the main prerequisites of a potent IEBMM mechanism is support by scientific groups. The Arctic Council’s definition of the Ecosystem Approach implies that integrated management of human activities should be based on ‘best available scientific and traditional knowledge about the ecosystem and its dynamics, in order to identify and take’ management actions.⁵⁰ This principle can also be traced to the practice of other regional instruments.

A wide range of scientific groups are active in the Arctic: ICES, PICES, the Pacific Arctic Group (PAG) of the International Arctic Science Committee (IASC), bilateral Russian-US and Russian-Norwegian Fisheries Commissions and the like. However, it is often recognized⁵¹ that none of them is dedicated to coordinating integrated marine science activity throughout the entire Arctic Ocean, as well as transferring research results to regional institutions for management decision-making (except for ICES⁵²). For instance, the geographic area of ICES, with all the eight Arctic States being parties to it, covers the Atlantic Ocean with an explicit emphasis on the North Atlantic and touches only a part of the Arctic.⁵³ PICES is an organization similar to ICES, active in the Northern Pacific, which adjoins only three Arctic States. Besides, unlike ICES, it does not provide management advice to competent authorities. Despite the fact that the area of IASC covers the entire marine Arctic and the range of research issues is quite wide, this scientific organization was created ‘bottom-up’ – by scientists’ initiative and efforts. This is a nongovernmental organization with all relevant challenges in funding, especially for research across national boundaries.⁵⁴

Today, discussion is ongoing on the issue of how to proceed towards coordinating and accumulating marine scientific research for the purposes of IEBMM.⁵⁵ Some experts believe that, despite notable efforts by various research organizations in the Arctic, currently gaps remain in scientific understanding of the marine Arctic, especially in its central part. In that light, they suggest that there is a need to establish a new stand-alone coordination mechanism.⁵⁶ Others consider such a measure premature and suggest amending the mandates of existing mechanisms, in particular, ICES, instead of establishing an entirely new scientific organization.⁵⁷

It would certainly seem feasible to work towards a comprehensive integrated regional programme within the Arctic Council for scientific research for the purpose of adopting scientific-based decisions related to spatial planning in the Arctic Ocean. Both national scientific organizations of the AC member States and external international scientific organizations and programmes could participate in such initiatives, including IASC and ICES, among others. A good starting point could be establishment of the mechanism under the 2018 Agreement on prevention of unregulated fisheries in the central part of the Arctic Ocean. This could provide a platform for a subsequent build-up of coordinated research of marine ecosystems in the region.

22.5 Ways Forward

Implementation of integrated ecosystem-based marine management in the Arctic will be associated with major challenges, both legal and organizational. This refers to the need to ensure that ecosystem-based measures are in full compliance with international law, especially in terms of ABNJ, finding ways to engage non-regional countries in complying with IEBMM measures in ABNJ, as well as tackling the problem of achieving a cross-sectoral effect of ecosystem-based management by coordination among different marine industries.

Solutions to these challenges would seem to lie in unfolding the Arctic Council’s potential. Efficient implementation of IEBMM tools is possible through a significant build-up of the AC: moving towards endowing the AC with international legal personality; transforming the AC Secretariat into an authoritative Commission with relevant functions similar to that of the OSPAR Commission. Bearing in mind, however, the limited possibilities of the Arctic Council to adopt binding decisions restricting third States’ rights and freedoms in marine ABNJ, additional measures would also be reasonable. The AC could play the central role in coordinating IEBMM tools (such as applying marine spatial planning or creation of marine protected areas) with global and regional sectoral organizations active in the Arctic. This includes: the IMO in relation to shipping; the NEAFC and possible future mechanisms under the 2018 Agreement on fisheries in the central part of the Arctic Ocean; and the ISA in relation to exploration and exploitation of the resources of the Area (long-term perspective). Collaboration with these institutions with much broader membership would also provide compliance with AC policies by third States parties to these organizations. However, the mandates of global and regional sectoral organizations do not cover all economic activities that could pose a potential threat to the marine environment in the Arctic. This refers to reduction of marine environmental pollution from land-based sources, the oil and gas industries, construction of artificial islands and installations, laying cables and so on, which should be the subject of further consideration.

A more rational use by the AC of its observers could also serve the purposes of IEBMM: observers could be involved to a larger extent in discussions on relevant regional regulations; they could be allowed to participate in negotiations of legally binding agreements and to sign them. Synergetic effects could be further increased by establishing a regional scientific programme within the AC (or under its auspices) aimed at systematic planning, coordination and integration of scientific research for the purpose of introducing the integrated approach to marine management.

23 Understanding Japan’s Resumption of Commercial Whaling under International Law

Constantinos Yiallourides

23.1 Whaling under International Law: An Ongoing Debate

On 1 July 2019, Japan officially withdrew from the International Convention for the Regulation of Whaling (ICRW)¹ and resumed commercial whaling after nearly 31 years.² On this very date, the Japanese government announced that a maximum of 383 minke, Bryde’s and sei whales would be caught during its first annual whaling tour within its exclusive economic zone (EEZ) of 200 nautical miles.³ The Japanese whaling fleet, which had been conducting scientific whaling in the high seas, has resumed commercial whaling but limited to the Pacific coasts of Japan and not the Sea of Japan or the East China Sea. All other whaling operations are conducted on Japan’s Pacific side except for areas off the coasts of Hokkaido that face the Sea of Okhotsk.⁴ This maritime area is much narrower compared to Japan’s previous whaling area in the Antarctic Ocean (see Figure 23.1).

Figure 23.1. Japan’s past and current whaling areas

On 8 October 2019, the whaling fleet ‘Nisshin Maru’ reportedly returned having captured 187 Bryde’s whales (about 1,171 tons), 25 sei whales (about 232 tons) and 11 minke whales (about 23 tons), totalling approximately 1,426 tons of whale meat.⁵ On 24 February 2020, the fleet embarked on a new whaling tour in Japan’s South-Eastern EEZ. The first 2020 catch was announced on 3 March: a Bryde’s whale (about 14.85 tons).⁶ In July 2020, the Japanese government released the 2020 catch quotas for Minke, Bryde’s and Sei whales and stated that these are ‘substantially equal to those for 2019’.⁷

The literature has detailed the rules and objectives of the ICRW;⁸ the work of the International Whaling Commission (IWC), which was established in 1948 to implement the ICRW;⁹ and litigation under the ICRW.¹⁰ This chapter builds on existing scholarship and presents the reasons for, and possible implications of, Japan’s decision to withdraw from the ICRW and resume commercial whaling in its EEZ from 1 July 2019.¹¹ This chapter places the issue of whaling within the overall environmental law debate and explains that promotion of the international rule of law in the field of commercial whaling calls for positive cooperation at the international level to promote the conservation and sustainable use of whale stocks. To illustrate this, the discussion provides an overview of Japan’s approach towards environmental conservation and living resources management in the light of the applicable rules of international law, especially under UNCLOS and the ICRW. The chapter argues that, despite its withdrawal from the ICRW, Japan remains under a continuing obligation to cooperate meaningfully with other States through the appropriate international organizations, including the IWC, for the conservation and management of the marine natural resources presented by whales. Equally, other interested States remain under a continuing obligation to cooperate with Japan for the same purpose. Nevertheless, the degree or means of cooperation required by Japan and other interested States to fulfil their legal duty to cooperate under international law lacks clarity. It is further argued that whilst Japan is under a positive duty to adopt a precautionary approach to whaling within its EEZ, application of the precautionary approach does not generally prescribe what measures must be taken at the national level. The lessons that ought to be learnt from Japan’s withdrawal by the global protagonists of whaling and the rule of law implications in light of unclarity in the applicable legal framework have been articulated as concluding remarks.

23.2 Whaling in Relation to Marine Environmental Protection

Pro-whaling nations, such as Japan, and anti-whaling nations and environmental non-governmental organizations (NGOs), such as Australia and Greenpeace respectively, have fundamentally different approaches to the matter. Anti-whaling parties’ rhetoric is largely focused on emotion and ethics: the whale is presented as a beautiful and highly intelligent living creature that should not be exploited.¹² An image has been created of a ‘super whale’ drawing on all whale species: the whale is the largest animal on earth (the blue whale); it has the largest brain on earth (the sperm whale); it sings nicely (the humpback whale); it is friendly (the grey whale); it is endangered (the blue whale); and the like. Some States that favour whaling, such as Norway and Japan, criticize this emotional approach. They assert that the core issue for natural resource sustainability is neither the animal per se nor its appearance or intelligence, but protection and conservation of the marine environment, its flora and its fauna.¹³ Such States posit the key question: should the management, conservation and sustainable use of the marine natural resources be (re)presented by whales? These States argue this is a legal and scientific question on protection of the marine environment and, in particular, the sustainable management of whale stocks.

These two approaches embody, according to Fitzmaurice, ‘the tension between, or the binary of, on the one hand, the expressly commercial objective of conserving and managing whale stocks in order to provide for the “orderly development of the whaling industry”, and on the other the recognition that whales are a “general trust” to be safeguarded for future generations’.¹⁴ Ethical issues, including surrounding animal rights and cultural diversity, permeate the whaling debate.¹⁵ Some animal rights theories suggest whaling should be banned altogether as animals enjoy a full right to life.¹⁶ Conversely, theories based on cultural diversity or cultural identity assert the need to protect the cultural rights of nations that have historically engaged in whaling.¹⁷ Many other theories relevant to environmental policy, which draw for instance on moral philosophy and bioethics, cannot be explored fully in this chapter.¹⁸ These theories are largely relative and depend on one’s standpoint, personal views and emotions. Their application within UNCLOS, the ICRW and other relevant environmental treaties is not without problems.¹⁹ Ethical values and attitudes differ among people and States, including depending on whether they practise whaling. There are strong emotions on all sides of the ethical and cultural whaling debate.²⁰

What Japan and other pro-whaling States see as essential is not blanket preservation of individual animals based on emotions and ethics, but protection of the holistic whole, the marine environment, based on law and science.²¹ International law takes an expansive view of ‘marine environmental protection’. The totality of Articles 192–196 of the UNCLOS indicates that protection and preservation of the marine environment encompasses protection of ecosystems and conservation of living resources and depleted or endangered species of marine life.²² Thus, the task at hand is to weigh those pro-whaling States’ legal and scientific evidence of conservation and sustainable use against the competing evidence of anti-whaling States in light of applicable rules and principles of international law.

As the present chapter argues, promoting the international rule of law in the field of whaling lies in compromise and meaningful cooperation between the global protagonists of whaling. Maintaining inflexible assertions without being prepared to make concessions in pursuit of common ground neither conserves nor protects fragile whale stocks for generations to come. Instead, it alienates key whaling players, thus undermining whatever chances for meaningful international cooperation may have existed while rendering existing legal instruments incapable of implementation and enforcement.²³

23.2.1 Legality of Whaling and the Precautionary Approach

Under present international law, whales are an exploitable marine living resource and States possess, in principle, ‘a legal right to whale’.²⁴ The UNCLOS preamble endorses the ‘equitable and efficient utilization’ of marine living resources in conformity with ‘protection and preservation of the marine environment’.²⁵ A coastal State has a legal right to authorize and regulate exploitation of marine living resources, including whales, within its territorial sea²⁶ and EEZ.²⁷ This right is subject to due regard obligations and a legal duty to cooperate ‘with a view to ensuring conservation and promoting the objective of optimum utilization’ (emphasis added) of highly migratory species listed in Annex I of UNCLOS.²⁸ Category 17 of Annex I encompasses seven families of whales: sperm, blue, humpback, minke, bowhead, grey and narwhal whales. UNCLOS also allows the sustainable exploitation of marine living resources on the high seas.²⁹

States decide whether or not they wish to harvest whales. The IWC determines which and how many whale species member States can harvest. The ICRW preamble includes ‘the proper conservation of whale stocks and … the orderly development of the whaling industry’ as an aim.³⁰ Similarly to UNCLOS, the ICRW discusses sustainable exploitation by employing expressions such as achieving the ‘optimum level of whale stocks’, ‘confined to those species best able to sustain exploitation’ and safeguarding for future generations ‘the great natural resources represented by the whale stocks’.³¹ The ICRW preamble further recognizes that ‘whale stocks are susceptible of natural increases if whaling is properly regulated, and that increases in the size of whale stocks will permit increases in the number of whales which may be captured without endangering these natural resources’.³² It adds that ‘it is in the common interest to achieve the optimum level of whale stocks as rapidly as possible without causing widespread economic and nutritional distress’.³³ The ICRW seeks to balance the objective of protecting and conserving whale stocks against the objective of managing and utilizing whale stocks, thus preserving the whaling industry.³⁴ The International Court of Justice (ICJ) found that these objectives had remained essentially unchanged in the Whaling in the Antarctic case.³⁵

Can commercial whaling take place without severely depleting whale stocks and, hence, without harming the marine environment of which whales form an inalienable part? This is the chief question when ascertaining the legality of exploiting whale resources under UNCLOS and the ICRW. The answer is not straightforward. Science has not so far provided definite answers about the population dynamics of certain whale species and the impact of human-related and climatic factors on those species.³⁶ Scientists remain unsure of how many whales exist, how marine pollution disturbs their habitat, how declining fisheries affect their food supply and how whaling impairs their ability to survive.³⁷ Other scientists argue that ‘difficulties in dealing with uncertain data were exacerbated by strong personal philosophies, which in some cases were influenced by national positions’.³⁸ Morishita, Japan’s leading marine scientist, writes that ‘with greatly advanced scientific knowledge about whales and wildlife management and new technologies available today, sustainable whaling is possible’.³⁹

Even in the absence of conclusive scientific evidence linking commercial whaling to permanent environmental damage, it may be argued that the precautionary approach is applicable to exploitation of whales as a means of ensuring effective conservation and preventing serious harm to whale stocks.⁴⁰ This is particularly true in light of the Southern Bluefin Tuna case.⁴¹ There, ITLOS’s references to ‘scientific uncertainty’ focused on the relevance of the precautionary approach to the interpretation and application of UNCLOS.⁴² Judges Laing and Treves stressed this point in their separate opinions: environmental legal instruments should be interpreted and applied in light of the precautionary approach.⁴³

The IWC halted commercial whaling by adopting ‘zero quotas’ on whale hunting in 1982. Some commentators viewed this blanket moratorium as application of the precautionary approach to commercial whaling: preventive action should be taken even in the absence of clear evidence as to the necessity for such measures before damage has been determined.⁴⁴ Voigt describes several factors that are not directly associated with the exploitation of whales and make a prediction of impacts on marine life, and hence whale populations, virtually impossible.⁴⁵ Such factors include climate change (global warming affects oceanographic conditions and harms zooplankton species krill, whales’ primary source of food in the Southern Hemisphere) and chemical and noise pollution (marine contaminants and underwater noise pollution may pose long term threats to marine mammals’ living conditions, but the precise impact of these threats must be further investigated).⁴⁶

23.2.2 Whaling in Japan’s Environmental and Ocean Policy

Understanding Japan’s approach towards commercial whaling requires starting from Japan’s legal system for protection of the marine environment and conservation of marine natural resources. The Japanese legal system takes an expansive view of the definition of the environment, be it terrestrial or maritime. The Japanese Basic Environment Law of 1993 states that its principal purpose is to promote ‘environmental conservation’ to prevent among others ‘decrease in wildlife species and others which are caused by human activities and affect the environment of the entire globe or a large part of it …’⁴⁷ The same law stipulates that ‘environmental harm or damage’ (kogai in Japanese) includes any interference with environmental conservation ‘as a result of business and other human activities, which cause damage to human health or the living environment (including property closely related to human life, as well as fauna and flora closely related to human life and their living environment)’.⁴⁸

Japan’s Basic Act on Ocean Policy of 2007 (Ocean Act) introduces a utilitarian approach to marine environmental conservation.⁴⁹ The Ocean Act connects, on the one hand, marine biological diversity and marine environmental protection to, on the other, the prosperity of the Japanese people and development of the Japanese economy. It states: ‘securing marine biological diversity and conserving the marine environment are the basis of the existence of mankind and also indispensable for prosperous and affluent lives of the citizenry’ (emphasis added).⁵⁰ This connection is likely truer for Japan than other G-20 countries, given Japan’s heavy reliance on seafood to support its national economy and society. Commentators defend Japan’s position on whaling on the basis of whaling’s contribution to Japan’s ‘food self-sufficiency’.⁵¹ Others note that appetite for whale meat is ‘embedded in the Japanese psyche’ and should therefore continue to be a source of food.⁵² However, whaling is no longer a major industry in Japan, and whale meat consumption in the country had declined even before the 1982 moratorium.⁵³ Whale constituted around 3 per cent of overall meat consumption in 1981.⁵⁴ Japanese government subsidies keep the country’s whaling industry on life-support and current trends suggest commercial whaling may become unprofitable in the long term.⁵⁵

The Ocean Act sets out the general principles and objectives guiding the development and use of Japan’s waters and marine natural resources ‘in harmonization of the peaceful and positive development and use of the oceans with … conservation of the marine environment’.⁵⁶ This aspires to ‘contributing to the sound development of the economy and society’, ‘supporting industries bearing the development, use and conservation of the oceans’ (referred to as ‘Oceanic Industries’) and improving ‘the stability of the lives of citizens’.⁵⁷ The Ocean Act states that the Japanese government undertakes three policy objectives. First, to promote the ‘sound development of Japan’s Ocean Industries’.⁵⁸ The central Government, through the Ministry of Agriculture, Forestry and Fisheries (MAFF) and its Fisheries Agency, have a legal duty to ensure the proper conservation and management of fisheries resources; secure a stable supply of fishery products; and support the development of the fishing industry. As whaling is part of fisheries in Japanese law, the Government has a legal duty to promote its sound development.⁵⁹ Of note here, the ICRW also uses the expression ‘whale fisheries’, which raises the ‘assumption of similarity in nature’ between whaling and commercial fishing.⁶⁰

Second, to improve ‘scientific knowledge of the oceans’ through ‘ocean science and technology’ programmes as an ‘indispensable [condition] for the proper development and use of the oceans and conservation of the marine environment’.⁶¹ Scientific programmes on the study, conversation and development of whale stocks fall under this policy objective.

Third, to ‘formulate a basic plan with regard to the oceans’.⁶² This plan would prescribe necessary measures for the ‘conservation and management of living aquatic resources, conservation and improvement of the growing environment for aquatic plants and animals, increase of fishing ground productivity’.⁶³ The Basic Plan on Ocean Policy was published for the first time in 2008 and was revised in 2013 and 2018. The first edition (2008) recognized that ‘realization of sustainable use of finite major fishery resources has become an urgent issue for international society’.⁶⁴ It further added that ‘it is important for Japan to make efforts to gain the understanding and support of the international society widely for its basic stance to seek sustainable use of marine living resources’.⁶⁵

The second edition (2013) first repeated the long-established maxim that ‘the development and use of the oceans are the basis of existence for the economy and society of [the Japanese] State’.⁶⁶ It then directs the Japanese government to ‘elicit the potential of the sea to the maximum extent in order to bring wealth and prosperity to [the] country … while seeking to harmonize the development and use of the oceans with conservation of the marine environment’ (emphasis added).⁶⁷ The Ocean Plan, conscious of issues raised by Japan’s whaling activities, also called on the Government to: ‘[s]afely conduct whale research programmes, and continually implement initiatives to gain a wider international understanding of Japan’s stance to realize sustainable use of whale stocks based on scientific evidence’.⁶⁸

The third and most recent edition of the Ocean Plan (2018) directs the Government, through global initiatives ‘to lead the world on measures to protect the environment and to promote the integrity of environmental protection and the sustainable use and development of the ocean by cultivating sound marine industries’.⁶⁹ The Plan stresses that: ‘It is necessary to increase the effectiveness of environmental protection and to develop a win-win relationship with sustainable development and environmental protection’ (emphasis added).⁷⁰ The Ocean Plan envisages the expansion of ‘ocean-based businesses’, including the fishing industry, as contributors to national economic growth.⁷¹ On commercial whaling, the Ocean Plan states that, in anticipation of resumption of commercial whaling, Japan will continue discussing the issue of whaling with stakeholder countries and conducting scientific whaling based on Japanese law.⁷²

23.2.3 Public Opinion on Whaling and Implications on Policy-Making in Japan

Japanese public opinion on whaling is an important factor, which is not directly relevant to Part XII of UNCLOS but which impacts Japan’s ocean policy-making and has played a crucial role in its decision to resume commercial whaling. Several nationwide opinion polls have included questions concerning whaling.⁷³ A 2011 survey by the Associated Press asked whether commercial whaling and the subsequent sale of whale meat were supported: 52 per cent said yes, 35 per cent were indifferent and only 13 per cent said no.⁷⁴ Thus, while only a small fraction of the Japanese public consumes whale meat, a majority supports commercial whaling to produce whale meat.⁷⁵

Reasons underpinning this discrepancy are unclear. Holm writes that despite a sharp decline in whale meat consumption, the Japanese public has in recent years become more involved in traditional whaling culture.⁷⁶ Whaling is seen as the ‘symbolic continuation of a genuine whaling culture from the Edo period and has become more significant for the Japanese population and politicians in recent years’.⁷⁷ Indeed, many Japanese coastal communities, so-called whaling towns, ‘have inextricably linked the continued existence and rebuilding of their towns with coastal whaling operations’.⁷⁸ The Japanese delegation has made repeated efforts before the IWC to allow these communities to carry out limited small-scale coastal whaling to protect their traditional lifestyle and ensure their economic survival.⁷⁹ These efforts have been unsuccessful, despite the conclusions of a scientific report suggesting that the IWC create a ‘separable and definable category’ of small-scale whaling with overlapping elements of both aboriginal and commercial whaling.⁸⁰

Other authors suggest that constant anti-whaling campaigns by Western environmental NGOs since the 1960s have contributed to growing ‘whale nationalism (kujira nashonarizumu).⁸¹ As Maekawa and Fukuda explain, although the Japanese public should be indifferent to whaling in general, ‘it is a recent characteristic that when foreigners criticize the whale issue, strong nationalistic calls such as “this is the arrogance of the West” or “Japanese food culture must be protected” suddenly appear’.⁸²

At any rate, if the Japanese public – for whatever reasons – broadly supports whaling and if Japanese basic ocean policy is to support Japan’s oceanic industries, the Japanese government has a vested interest in acting on this mandate.

23.3 Japan’s Resumption of Commercial Whaling under International Law

Japan has resumed commercial whaling within its EEZ and emphasized in its domestic laws, regulations and public rhetoric that whaling will only be conducted in a sustainable and transparent manner based on science.⁸³ This is in essence what the international rule of law in the maritime domain calls for, according to Japan. Indeed, Japan’s whaling policy is based on a straightforward principle: ‘being a food resource, if whale populations can sustain a controlled harvest then there is no reason to prohibit their utilization for human consumption’.⁸⁴ The government of Japan was legally entitled to leave the ICRW: Article XI of the ICRW expressly provides for the ability of a State party to withdraw from the ICRW.⁸⁵ Japan gave formal notice of its withdrawal on 26 December 2018 and, hence, stopped being bound by the ICRW on 30 June 2019.⁸⁶ So, what are the possible rule-of-law ramifications of Japan’s decision to resume commercial whaling?

Despite its withdrawal, Japan remains under a general obligation to cooperate with other States ‘either directly or through appropriate subregional or regional organizations’ for the conservation and management of species occurring across jurisdictions (Article 63 of UNCLOS) and of highly migratory species, including several whale species (Article 64 of UNCLOS and Annex I).⁸⁷ The obligation to cooperate in relation to marine environmental protection is reinforced by Article 65 of UNCLOS, which notably provides that:

States shall cooperate with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management and study (emphasis added).⁸⁸

Article 65 is UNCLOS’s ‘principal marine mammal provision’.⁸⁹ However, this provision is subject to important ambiguities and limitations. Two points merit highlighting. The first concerns the meaning of the ‘appropriate international organizations’. UNCLOS does not specify which body, or bodies, is ‘the appropriate international organization’ through which States must cooperate with respect to the management and conservation of whales.⁹⁰ The literature shows some consensus on whaling regulation: the IWC, that is, the body entrusted with implementation of the ICRW, is the principal international organization.⁹¹ Section 17 of Agenda 21 of the Rio Conference expressly refers to the IWC as the competent international organization for the conservation and management of whale stocks and regulation of whaling.⁹² In addition to the IWC, other international organizations may also have a mandate to conserve and manage whales and, thus, fall within Article 65. The United Nations Division for Ocean Affairs and the Law of the Sea (DOALOS) note these organizations could include the Food and Agricultural Organization (FAO) and the United Nations Environment Programme (UNEP).⁹³

Additionally, DOALOS has suggested that ‘some organisations may become “competent” in the future’ with respect to whaling regulation.⁹⁴ Insofar as Article 65 does not specify a single international organization with exclusive authority on whales, other international organizations could reasonably be established for the conservation, management and study of whales.⁹⁵ This is particularly important if one considers ‘the prevalent atmosphere of confrontation and mistrust among member governments’ within the IWC, which has led, according to the Chair and Vice-Chair of the IWC, ‘to little progress being made on key practical matters of conservation and management since the early 1990s despite advances at scientific level’⁹⁶. The ongoing lack of consensus within the IWC ‘contributes to its declining credibility among member States and the wider international community, and encourages the development of other “appropriate international organizations”’.⁹⁷ Indeed, Iceland, the Faroe Islands, Greenland and Norway established the first whaling regional organization in 1992 by expressly invoking Article 65: the North Atlantic Marine Mammal Commission (NAMMCO).⁹⁸ Japan has repeatedly emphasized the importance of regional environmental organizations, its intention to maintain and strengthen its observer role within NAMCCO and its aim to lead regional efforts to establish another international organization relating to the conservation and management of whale stocks.⁹⁹

Another fundamental limitation in Article 65 relates to the meaning of ‘work[ing] through’ the appropriate international organizations. To ‘work through’ entails some form of inter-State cooperation with a view to managing and conserving marine living resources, including whales and other marine mammals.¹⁰⁰ How a State would fulfil its obligation to ‘work through’ the appropriate organization(s) is, however, unclear. UNCLOS does not clarify the substantive elements of the positive duty to ‘work through’. Taken plainly, to ‘work through’, means ‘to manage a problem that has many different parts step by step’.¹⁰¹ It may be suggested that Article 65 does not give rise to a legal obligation on States to become members of the relevant international organizations or to adhere to the regulations adopted by these organizations.¹⁰² Article 65 may be satisfied ‘through consultation with scientific bodies’¹⁰³ or ‘active engagement in the organization as observers’.¹⁰⁴ On the other hand, the requirement to ‘work through’ cannot be narrowed to mere scientific consultation. Article 65 would oblige States ‘to defer to the appropriate international organizations to set minimum conservation and management measures for cetaceans’.¹⁰⁵ In the specific context of Japanese whaling, the obligation to ‘work through the appropriate international organizations’ is insufficient to determine the degree or means of cooperation required by the Japanese government to fulfil its legal duties under Article 65 of UNCLOS.¹⁰⁶

Japan expressly recognizes its duty to cooperate over whaling matters and has publicly committed to engage meaningfully with other States directly and through the appropriate international organizations in good faith. First, Japan has indicated that it would maintain observer status within the IWC.¹⁰⁷ Second, Japan has stated it would strictly monitor all whaling operations within its EEZ by having government officials at each landing base and onboard factory ships and by observing vessels’ locations through satellite communication devices. All relevant information about operations and the number of whales caught would then be shared publicly. Third, all catch quotas within Japanese waters will be calculated in accordance with the calculation formula unanimously adopted by the IWC Scientific Committee for setting sustainable catch limits and preventing any adverse effects on whale stocks.¹⁰⁸ This formula, known as the Revised Management Procedure (RMP),¹⁰⁹ was the culmination of several years of research and extensive simulation testing by the IWC Scientific Committee based on quantifiable ‘politically agreed management objectives’ set by the IWC in the event of the moratorium being lifted or relaxed.¹¹⁰ According to Japan’s Fisheries Agency, this calculation formula is ‘extremely conservative’ and confirms ‘that continuous harvest of calculated number of animals for 100 years would have no harmful effect on the targeted stock’.¹¹¹ However, despite the RMP’s scientific soundness and unanimous endorsement by the IWC Scientific Committee, the proposal to lift the moratorium did not attract the required three-quarters majority for adoption; hence the moratorium remained in place.¹¹²

In all, Japan’s obligation to engage meaningfully with other States and the IWC does not constitute an obligation to agree to or adopt unconditionally every IWC regulation.¹¹³ How other States delineate the substantive content of Japan’s duty to ‘work through’ with the IWC and other international organizations under Article 65 of UNCLOS remains to be seen.¹¹⁴

23.3.1 Whaling within Japan’s EEZ Lawful if Conducted Sustainably

Japan’s decision to resume commercial whaling may be unpopular for anti-whaling States and environmental NGOs. Yet, it is existing legal instruments governing whaling that provide the legal pathways to whaling.¹¹⁵ For instance, Norway, which opted out of the moratorium, has been conducting commercial whaling in its EEZ ‘perfectly legally’, according to New Zealand’s Commissioner to the IWC, Sir Geoffrey Palmer.¹¹⁶ The ICRW provides an option for States members to avoid being bound by a particular proposed new regulation simply by objecting to them under Article V(3) of the Schedule of the ICRW.¹¹⁷ Japan also objected to the moratorium but was later persuaded by the United States to drop its objection. Iceland left the ICRW in 2002 and later re-joined with a reservation against the moratorium.

Thus, it would appear that under the current rules, Japan could lawfully pursue whaling outside the ICRW, thereby pursuing the benefits sought for its economy and citizens, and not be bound to abstain from whaling as long as it conducts commercial whaling sustainably and does not lead species to overexploitation. Nevertheless, this is not an uncomplicated endeavour. Overexploitation is not the only concern for whale sustainability. Today, whales are subjected to simultaneous threats, not associated with whaling per se, including climate change, marine contamination, and biological and habitat degradation.¹¹⁸ Scientific research, in part led by Japan, gives clues on how human activities may impact certain marine mammals, but, as Voigt writes, ‘knowledge is far from complete, and it appears that there is no understanding of how such activities will affect cetaceans when they are synergistically exposed to them’.¹¹⁹ Scientists are not always able to precisely quantify the short- or long-term scale of such impacts.

At any rate, application of the precautionary approach does not generally prescribe what measures must be taken at the national level. Instead, the precautionary approach can be applied ‘in different ways and different contexts’.¹²⁰ Thus, in practice, States – whilst under a positive duty to adopt a precautionary approach – what sort of action the precautionary approach prescribes may differ significantly from State to State and, thus, whether a State interprets the precautionary approach in light of scientific uncertainty as requiring either a complete ban or regulated hunting is part of the State’s lawful discretion: it may mean an open-ended blanket ban on all whale species or controlled hunting of certain species known to be abundant in the target areas, subject to stricter conditions and constant monitoring.¹²¹

23.4 Towards Solutions

This chapter has shown that whaling is intimately connected to the broader environmental law debate. The legal and regulatory approach to whaling is, first and foremost, about environmental protection and sustainable use of marine living resources. Therefore, clearer guidance is required as to what will promote sustainable whaling in any given situation. One possibility, which may be unpopular in certain countries, is to allow limited, but internationally monitored, whaling in specific places. In other places, whaling could be stopped altogether. As Freeland writes, if complete cessation of whaling cannot be achieved, at least in the short term, ‘the only rational and pragmatic response is to ensure that as few whales as possible are taken’.¹²² The only way for that to happen is for IWC members to agree a compromise based on widely accepted environmental principles such as sustainability.

Further research should be conducted to allow an adjustment of those approaches based on science. This necessarily makes discussions more complex than a straightforward binary decision to allow or ban whaling. Yet it also allows for urgently needed constructive international engagement. In some places, whaling will be off the table because of its not being supported by the public (hence being politically unviable) – but that applies on the side of the proponents of a global whaling ban as much as on the side of its opponents, such as Japan and Norway, where whaling is still popular and supported politically.¹²³ As we have seen, the Japanese government has a vested national interest in safeguarding whaling, even if it is not a major industry in Japan.

Independent scientific research, uncompromised by the economic, social and political interests of those concerned with whaling, is urgently needed to ensure decisions are based on the scientific evidence produced.¹²⁴ As scientific knowledge advances and whale stock management theories become even more complex, scientific advice may not necessarily produce clear-cut answers. In situations of scientific uncertainty, the precautionary principle can allow for rational decisions – provided that the principle is not misinterpreted and transformed into ‘a principle of inaction’ by insisting on the status quo and refusing to consider alternative courses of action.¹²⁵ The precautionary approach serves precisely to enable meaningful decisions in the face of uncertainty. This ensures that decision-making is not stifled in every instance of uncertainty and reflects the reality that uncertainty may remain unavoidable in the foreseeable future. The search for a desirable compromise will inevitably involve some risk.

Decisions must be multi-dimensional, grounded on good science and international environmental cooperation. Such cooperation should be conducted in good faith and presupposes, according to the ICJ, ‘a genuine attempt … to engage in discussions with the other disputing party, with a view to resolving the dispute’.¹²⁶ This duty of cooperation, which stands at the heart of international environmental law, is an obligation of means and not of result. It does not mandate that all negotiations succeed: it is effectively a duty of ‘meaningful cooperation’.¹²⁷ The International Law Commission has confirmed in its work that meaningful cooperation requires that discussions be conducted in good faith ‘and must take into account each other’s legitimate interests’.¹²⁸ This arguably includes a willingness to alter one’s approach in light of the other party’s legitimate interests and views as opposed to insisting on maintaining the status quo despite the existence of reasonable and satisfactory alternatives. After the IWC imposed its blanket moratorium on whaling in 1982, Japan argues that it spent 30 years trying to negotiate a compromise based on scientific evidence of sustainability; it repeatedly proposed amending the moratorium to allow limited and internationally controlled whaling under the ICRW; and it only decided to withdraw on realizing that such a compromise would not be reached.¹²⁹ One may suggest that Japan genuinely sought compromise and that the onus is on other IWC member States to show that they have duly fulfilled their duty of meaningful cooperation. Meaningful cooperation in good faith goes both ways. So does respect for ethical and cultural values. In essence, this is the perennial challenge of whaling regulation, which insists on and facilitates open disputes between parties with seemingly irreconcilable interests and assessing the relative positions.

24 Failing Rule of Law The Case of the South China Sea

Agnes Chong

24.1 Introduction: The Rule of Law

Overlapping claims in the South China Sea (SCS)¹ are at fundamental odds with States complying with their obligations to cooperate to protect the environment and to have due regard for rights and interests in the SCS. This conundrum invites the question ‘is the rule of law for the oceans fit for purpose?’² Contestations over fishing, oil exploration, land reclamation, freedom of navigation rights and interests in the SCS have not been resolved by the rule of law; but rather have been subjects of political hostilities and confrontations that escalated and eased, and threatened the rule of law.³ The rule of law was reinstated when the Permanent Court of Arbitration (PCA) adjudicated on the maritime entitlements between the Philippines and China in the South China Sea Arbitration. Amid open conflicts in the SCS, the ruling is primarily seen as countering a powerful political campaign initiated by China on its SCS neighbours to accept the legitimacy of China’s maritime expansion.⁴ It also sets a precedent for SCS States to comply with the rule of law and establish a rules-based order in the SCS.⁵ The United Nations Convention on the Law of the Sea (UNCLOS)⁶ is the normative framework for a global legal order for the oceans. Its goal is to maintain peace and security and uphold an equitable system of balancing the rights and obligations of coastal States and non-coastal States.⁷ UNCLOS essentially shifts a system of unilateralism to multilateralism through the Convention’s duties to cooperate, consult and obtain approval from various sea authorities such as the International Maritime Organisation and the International Seabed Authority, as well as mandates to resolve disputes by arbitration or adjudication.⁸

This chapter has four sections, following this opening one. Following this introduction, Section 24.2 discusses the South China Sea Arbitration that emphasised the obligations of cooperation and due regard. Section 24.3 highlights the cooperation regime of the SCS, and Section 24.4 discusses the obligation of due regard. Both of these fundamental mechanisms are structurally disabled due to the conflict over maritime claims. Section 24.5 addresses the difficulty of exercising the obligation to cooperate and at the same time have due regard to the rights and obligations of other States and recommends that the ASEAN Code of Conduct (COC) must enable radical action of States to adhere to their international obligations in marine protection of the SCS.

24.2 The South China Sea Arbitration and Part XII of UNCLOS

The PCA ruling is highly significant for marine protection in the SCS: it reinforced Part XII of UNCLOS and determined the legal rights and obligations of States in relation to the SCS.⁹ The South China Sea Arbitration between the Philippines and China concerned legal maritime entitlements in the SCS and the lawfulness of certain actions by China decided by the PCA in accordance with UNCLOS.¹⁰ China did not take part in the proceedings, and the hearings continued with China in absentia.¹¹

While the arbitration decided the legal issues in the case,¹² it importantly upholds the rule of law for oceans in the face of contemporary challenges and enforcement of global rules. By emphasising UNCLOS as the constitution of the oceans to balance interests, the tribunal disregarded non-legal interests, that is, ultimately extinguishing historical claims in the EEZ¹³ to focus on territorial entitlements protected by law. Furthermore, the tribunal upheld the authority of international treaties in respect to the compulsory procedure for dispute settlement in the present case.¹⁴ Not only should there be a governance framework for the management of overlapping maritime claims and integrated management of the environment and marine resources but also any such framework must be rooted in the rule of law.¹⁵

The tribunal’s ruling on maritime entitlements and the status of maritime features through interpretation of Article 121(3)¹⁶ was guided by the notion of ‘universalism in the law of the sea’ – not only safeguarding the benefit of the local population in the EEZ and protecting the ocean as the common heritage of mankind but also countering unilateralism as demonstrated by China’s claim in the SCS.¹⁷ UNCLOS should be an effective constitution for the oceans in the legal sense and not just the political sense.¹⁸

This is the case for protection of the marine environment as UNCLOS has an integrated and holistic framework to enable application of provisions to protect the marine environment under its Part XII.¹⁹ The provisions that were most relevant in the SCS were UNCLOS Articles 123 (duty to cooperate bordering semi-enclosed seas), 192 (duty to prevent significant harm), 194(5) (duty to protect marine ecosystems) as well as Article 204 (duty to monitor pollution effects), Article 205 (duty to publish monitoring results) and Article 206 (duty to conduct environmental impact assessments).²⁰ These articles were examined in the tribunal’s determination of China’s island-building programme where the court emphasised that cooperation may enable States to manage the risks of damage to the environment.²¹ The regime supports the requirement to communicate and coordinate development plans under Article 123 where the tribunal effectively ruled that non-communication, non-coordination and non-cooperation were in breach of the substantive and procedural aspects of the obligation to cooperate.

The South China Sea Arbitration affirmed that China had a duty to cooperate under Articles 123 and 197 in prevention of marine harm, and in this regard international jurisprudence is continually developing to define the obligation.²² The primary mechanisms to avoid conflicts and keep within the rule of law are: (i) cooperation; and (ii) due regard; these enable States to observe a rules-based oceans governance when exercising rights, interests and obligations in an EEZ.²³

UNCLOS is crucial to ensure the rule of law for the oceans in managing the challenges of ocean governance and the need to balance concurrent rights and obligations.²⁴ The tribunal acknowledged

the articles [governing] the exclusive economic zone were (as with much of the Convention) a compromise and intended to balance the interests of the peoples of coastal developing States with the interests of the traditional maritime States … and the Convention [contributes] to the realisation of a just and equitable international economic order which takes into account the interests and needs of mankind as a whole … ²⁵

Under Articles 56(2) and 58(3) of UNCLOS, coastal and non-coastal States are required to have regard to the rights and obligations of other States when utilising the seas in an EEZ.²⁶ The objective of this balancing mechanism is to ensure conciliation between overlapping rights, interests and obligations.²⁷ However, the due regard mechanism is not a voluntary undertaking but is an obligation to be complied with when a State exercises its right in an EEZ.²⁸ Implementation of due regard requires cooperation and willingness of the States in question. Separately, States have an obligation to cooperate to prevent environmental harm and to conserve marine ecosystems.²⁹ UNCLOS’s cooperation provisions provide the measure by which States are required to cooperate in the conservation and management of marine resources through a mechanism of notification and development of contingency plans.³⁰ This includes exchange of scientific information, monitoring risks as well as agreeing on measures to prevent harm.³¹

24.3 The International Cooperation Regime in the SCS

UNCLOS contains several provisions on the obligation to cooperate, which provide substantive and procedural obligations implicit in the duty to cooperate.³² The Convention on Biological Diversity (CBD), an outcome from the Rio Summit held in June 1992, affirms States’ commitments to sustainable development.³³ The CBD and its relevant provisions complement the environmental obligations in UNCLOS, which provide for States to cooperate on marine protection (at a general level) and on marine ecosystem and biodiversity preservation (at a specific level).³⁴

The basis of conservation cooperation can reverse the deteriorating SCS environment³⁵ – including: Article 3 of the CBD on the obligation to prevent harm to the marine environment; Article 5 of the CBD on the duty to cooperate in the conservation and sustainable utilisation of resources; Article 123 of UNCLOS on cooperation by States in semi-enclosed seas in the exploitation of natural resources and the protection of its marine environment; Article 192 of UNCLOS on the obligation to protect and preserve the marine environment of the seas; Article 194(1)–(4) of UNCLOS on the obligation to prevent pollution of the marine environment; Article 194(5) of UNCLOS on protection of marine ecosystems; and Article 197 of UNCLOS on the general obligation to cooperate.

International courts are increasingly upholding prevention of environmental harm through cooperation,³⁶ and are adjudicating on the extent of cooperation required to fulfil the obligation. In Chagos, the tribunal decided that the United Kingdom’s failure to resume talks after Mauritius called off meetings with the United Kingdom to discuss the development of marine protected areas on Chagos Island did not constitute reasonable cooperation.³⁷ Furthermore, the United Kingdom failed to comply with its environmental obligations in the circumstances as its actions in the present case fell short of the actions of the United Kingdom cooperating with the United States on similar environmental obligations.³⁸ Environmental cooperation must not be superficial and must be accompanied by firm policies and action.

Cooperation between semi-enclosed seas as applicable to SCS under Article 123 complements the requirement for parties to make further agreements relating to protection of the marine environment and is consistent with the principles and objectives of Article 237.³⁹ The complementarity of UNCLOS with CBD (both of which have universal ratification) reinforces the obligation to cooperate on marine protection and is reflected in non-binding regional instruments such as the 1976 ASEAN Treaty of Amity and Cooperation in Southeast Asia (TAC)⁴⁰ and the 2002 China–ASEAN Declaration on Conduct of the Parties in the SCS (DOC). These legal instruments establish a regional framework for effective ecological cooperation in the SCS. Notwithstanding the non-bindingness of the TAC and DOC, ASEAN⁴¹ has a distinctive long history of cooperation that has promoted coordinated resource planning and policymaking.⁴² Among regional multilateral fora, ASEAN has historically played a key role in diffusing conflicts in the SCS.⁴³

In respect to overlapping claims in the SCS EEZs, the ASEAN forum was utilised by SCS States to enter into a non-binding instrument between ASEAN and China – the DOC. The DOC sets out the commitment to form a future binding COC.⁴⁴ This was the culmination of efforts to settle maritime conflicts since 1992 and was a compromise when the parties could not agree on a binding treaty.⁴⁵ The DOC reaffirms the purpose of maintaining international peace and security as codified in the UN Charter, UNCLOS and the ASEAN TAC through which is realised in the ‘building of trust and confidence … on the basis of equality and mutual respect’,⁴⁶ that is, the principle of sovereign equality. The TAC promotes cooperation and mutual assistance in areas of economic, social, scientific and technical matters.⁴⁷ The broad cooperation requirement is specified in areas such as the economy, society and the environment.⁴⁸

Article 4 of TAC and Article 6(a) of the Draft Negotiation Text of DOC reflect the environmental provisions in UNCLOS and CBD. Article 4 of the TAC provides for the duty of cooperation in broad terms promoting ‘economic, social, technical, scientific and administrative fields as well as common ideals and aspirations of international peace and stability in the region and all other matters of common interest’.⁴⁹ Cooperation on the environment feasibly falls within Article 4 of TAC and complements the specialised area of cooperation on marine environmental protection in Article 6(a) of the Draft Negotiation Text of DOC, which the latter leaves the specific details of bilateral and multilateral cooperation to be agreed by the parties.⁵⁰

Prevention of marine harm in Article 192 of UNCLOS and Articles 3 and 5 of the CBD complement Article 4 of TAC and Article 6(a) of the Draft Negotiation Text of the DOC, thus allowing a broad and effective cooperation framework that protects the SCS environment. However, political will is essential to implement cooperation grounded in the international rule of law.⁵¹ Thus, compliance and cooperation is contingent on States agreeing to do so. Hence, the rule of law must be the impetus that functions as a means to achieve the outcome of cooperation and place normative constraints on policies that are contrary to the law.⁵² The rule of law is not applied in a vacuum but rather in a ‘thick common moral framework’ based on values that confirm States’ criteria for membership of the international system, that is, are peace-loving States and willing to carry out international obligations under the UN Charter?⁵³ Hence, the underlying normative requirement to prevent marine harm through cooperation is reinforced through the SCS cooperation regime consisting of UNCLOS, CBD, DOC and TAC, and aligned with progress in international jurisprudence on marine protection.⁵⁴ In upholding the rule of law, the cooperation regime must be applied by States bilaterally and multilaterally. Broadly, the international and regional instruments relating to environmental protection of the SCS and developments in international jurisprudence should form the basis of marine protection in a future detailed and binding COC.

24.4 Due Regard

International treaty provisions contain the requirement to have due regard to other States, which has an important function of balancing various rights, interests and obligations.⁵⁵ Due regard is the substantive and procedural mechanism that balances the rights and duties of States in their use of a shared natural resource to ensure that States as sovereign equals may enforce their rights and duties within the international legal regime.⁵⁶ There is no definition of due regard. However, in UNCLOS it exists as a legal obligation for coastal States and non-coastal States to pay due regard to each other’s rights and obligations in the exercise of their own rights and freedoms. States carrying out their due regard obligations when exercising their rights and freedoms forms the basis of a type of ‘mandatory multilateralism enshrined in UNCLOS.⁵⁷ Under Article 87 of UNCLOS the high seas are open and free to both coastal and non-coastal States but their right to the freedom of the high seas is subject to other freedoms provided in UNCLOS including those in Article 87(1) of UNCLOS.⁵⁸ States must have due regard to the interests of other States when exercising the freedom of the high seas and the rights in the convention.⁵⁹

SCS States are obliged under UNCLOS to have due regard for the rights and obligations of both coastal States and non-coastal States when using exclusive economic zones (EEZs), which incidentally are the areas of contention in the SCS.⁶⁰ The due regard obligation obliges States to balance their interests with the interests of other States in the use of shared sea resources. As the majority of the SCS constitutes EEZs, which are neither sovereign territories nor the high seas, the due regard regime contained in Articles 56(2) and 58(3) applies.⁶¹ Article 56(2) provides that when exercising its rights and performing its duties, a coastal State must have due regard for the rights and duties of other States.⁶² The rights and duties of other States are laid out in Article 58 such as the freedoms of navigation, overflight, laying submarine cables and pipelines and other lawful freedoms associated with ships, aircraft and submarine cables.⁶³ When exercising their rights, States must have due regard for the rights and duties of coastal States.⁶⁴

International jurisprudence on ‘due regard’ includes environmental protection of EEZs, thus bringing in greater regulation of activities in EEZs.⁶⁵ Sea activities of coastal States in EEZs under Article 56(1)(b)(iii) (protection and preservation of the marine environment) and non-coastal States under Article 58(3), must have due regard for the protection, preservation and sustainability of the seas.⁶⁶ The jurisprudence to date reinforces the principle that due regard is both a substantive and procedural obligation.

Enforcing a due regard regime requires a degree of cooperation and compliance. The EU’s framework for Maritime Spatial Planning (MSP) requires States to have due regard to the particularities of marine regions, relevant activities and their impacts and land–sea interactions under Article 4(5) and 8 of the MSP Directive EC 2014, and in this regard States must cooperate when considering the relevant interactions required under the Directive.⁶⁷ In Whaling in the Antarctic the ICJ considered the obligation of due regard within the framework of the duty to cooperate and ruled that Japan’s duty to cooperate should include paying due regard to the International Whaling Commission (IWC) and the Scientific Committee’s recommendations on non-lethal research methods.⁶⁸ The intrinsic link between due regard and cooperation is demonstrated by the fact that the obligation of due regard is not fulfilled without cooperation and compliance by the State parties.

The due regard mechanism is vital to balance concurrent rights, interests and obligations within any cooperation arrangement in practice, and to reverse the effects of the deteriorating SCS marine environment.⁶⁹ The ensuing maritime conflicts and competition for resources are worsening the prospects of cooperation in protecting and preserving the SCS marine environment.

Various ongoing issues in the SCS include the legal status of the EEZ arising from overlapping claims, the legality of foreign military activities in EEZs and freedom of navigation in the SCS,⁷⁰ all of which may affect the willingness not to view interests in the SCS as a zero-sum game making it difficult to comply with due regard. The enforcement jurisdiction in the EEZ also relies on compliance and cooperation among individual coastal States. However, any resolution for greater cooperation must be centred on marine conservation.⁷¹ A future ASEAN COC should place a moratorium over the claims in the SCS in order to urgently address marine preservation as a collective security matter and place legal and institutional frameworks for implementing the level of cooperation required to effectively reduce marine harm and restore the health of the SCS.

24.5 Resort to the Rule of Law: Cooperation and Due Regard

The foundation of the international legal order to have due regard for other States’ rights and duties is to ensure sovereign equality and ability to enforce all (not a few) States’ rights and duties within a system.⁷² The rule of law for the seas rejects unilateral actions (as with China’s nine-dash line claim in the South China Sea Arbitration, Iceland’s legislation that denies the UK its fishing rights in the Fisheries Case (UK v. Iceland)).⁷³ The legal order requires equitable balancing – hence, due regard is an obligation – which is not void of content.⁷⁴ UNCLOS, as a binding framework convention, provides the substantive and procedural rules as well as the framework for future agreements to cooperate on the marine environment of the SCS. The due regard mechanism for equitable balancing ‘[lacks] the precision of bright-line rules’,⁷⁵ and requires cooperation among the parties to negotiate in good faith and conform to their agreement in upholding the rule of law. In the fragile geo-political climate in the SCS, resorting to rule of law compliance may be the best way to diffuse tensions.⁷⁶

Koskenniemi notes ‘[t]he fight for an international Rule of Law is a fight against politics, understood as a matter of furthering subjective desires and leading into an international anarchy. Though some measure of politics is inevitable, it should be constrained by non-political rules’.⁷⁷ The state of affairs in the SCS where the dominant trend is to repudiate or avoid rules is reminiscent of John Locke’s phrase ‘wherever law ends, tyranny begins’.⁷⁸ Failures to enforce the SCS Arbitral Award weaken bona fide attempts to cooperate in good faith, and moreover, challenge the underlying foundations of the rule of law ideal in undermining the legal equality of States by disregarding other States’ rights and freedoms of the seas.⁷⁹

Notwithstanding that cooperation and competition are polar opposites, scholars have recommended strategies of cooperation amidst overlapping maritime claims. One strategy is to establish a network of marine protected areas (MPAs) in the SCS that may support different ecosystems as well as preserve areas from human impact to allow natural resources to recover from stress.⁸⁰ This strategy requires cooperation and political will to suspend maritime claims.⁸¹ A less ambitious suggestion is for China and Vietnam to establish an MPA in the same location in the Paracel Islands under their respective national laws.⁸²

Another recommendation is to resolve uncertainties over the parties’ overlapping EEZ claims, following which joint development areas could be established.⁸³ It has been suggested that China declare an EEZ from the largest islands in the Spratly Islands and Paracel Islands and issue charts setting out the outer limit of its EEZ claims so that other ASEAN claimants would be able to clarify their claims.⁸⁴ These recommendations are dependent on setting aside territorial disputes, which requires cooperation and mutual trust. These strategies, however, are feasible where there is a moratorium over claims, at the very least, an urgent collective focus on marine protection that takes precedence over State claims in the SCS.

24.6 Conclusion: Looking to the Future

The SCS illustrates that the rule of law is failing to protect the marine environment. Competing claims and antagonistic behaviour hinder the SCS States from cooperating and carrying out their obligations to conserve and protect the marine environment. Competition for maritime claims is at odds with the requirement to cooperate in good faith and to pay due regard to other States’ rights and freedoms in the EEZs. Failure to uphold marine protection and preservation obligations has caused the SCS marine environment to deteriorate drastically. Legal mechanisms relying on State-to-State cooperation are unlikely to be successful. However, there are steps that can be taken by the parties to ameliorate the parlous state of the rule of law in the SCS, potentially leading to better outcomes for the environment.

The South China Sea Arbitration ruling has implications for all SCS States. It reflects the environmental standard expected of States in carrying out sea-related activities, as highlighted in other international cases.

The present regime incorporates environmental principles and balances the freedom of utilisation of marine resources with the requirement to preserve and protect the marine environment implicit in the term ‘sustainable use’.⁸⁵ The COC must address the fundamental challenges of marine environmental protection and incorporate a requirement to cooperate reflecting the standard in international jurisprudence. A legally binding COC ensures compliance and counters the predominance of realpolitik in the SCS.⁸⁶ A moratorium over the claims in the SCS is the best chance for real cooperation.

Through some combination of these initiatives, the rule of law order may be restored with the hope that this may bring the benefits of the rule of law and stability to the SCS States, and ultimately result in more effective protection of the marine environment.