4.1 INTRODUCTION
LOSC is the most significant legal instrument in defining the responsibilities of states in respect of the sea. Its provisions include obligations placed upon the parties concerning the protection and preservation of the marine environment and its living resources.67
The first United Nations Conference on the Law of the Sea (UNCLOS 1) was held in 1958. The Conference codified the rules of customary law into four separate
Conventions, which were adopted.68 No mention was made in the 1958 documents of the need for conserving the marine environment. UNCLOS 1 gave clear
guidance on the degree of sovereign control by coastal states in each of the four areas of marine waters defined during the development of the Conventions. The failure of the 1958 conference to agree on the width of certain maritime zones, and the need to resolve a number of fisheries disputes led to a second conference, UNCLOS 2 in 1960. However, this also proved to be unsatisfactory in resolving many outstanding issues.
67 United Nations Convention on the Law of the Sea adopted 10 December 1982, entered into force 16
November 1994 1833 UNTS 3; 21 ILM 1261 (LOSC) Arts 61 & 116 to 120.
681958 Convention on the Territorial Sea and the Contiguous Zone adopted on 29 April 1958, entered in to
force 10 September 1964 15 UST 1606 / 516 UNTS 205 ; 1958 Convention on the Continental Shelf adopted on 29 April 1958, entered in to force 10 June 1964 UKTS 39 (1964), Cmnd 2422 / 15 UST 471 / 499 UNTS 311; 1958 Convention on the High Seas 13 UST 2312 / 450 UNTS 11;adopted 29 April 1958 entered into force 30 September 1962; Convention on Fishing and Conservation of the Living Resources of the High Seas adopted on 29 April 1958, entered in to force on 20 March 1966 UKTS 39 (1966), Cmnd 3028/ ATS 12 (1963)/ 17 UST 138 / 559 UNTS 285.
The breakthrough came with the convening of UNCLOS 3 in 1982 (LOSC).69 The LOSC text in its 1982 formulation repeated many of the principles enshrined in the earlier instruments together with some others, which had subsequently become customary law. There was an attempt to introduce some new rules but it was envisaged that some states might not adhere to the 1982 Convention; so the 1958 rules remain important.70 LOSC, unlike its predecessors, incorporates binding procedures for the settlement of disputes.71
The Preamble to LOSC commits states that are party to the Convention to
recognising the desirability of establishing a legal order for the seas and oceans. The Preamble is, of course, merely a scene setter for the subsequent text of the convention, which deals with topics as diverse as international communication; the peaceful uses of the seas and oceans; the equitable and efficient utilisation of the oceans resources; the conservation of the living resources; and the study, protection and preservation of the marine environment.72 The important provisions for this study are those governing the conservation of living resources and the protection and preservation of the marine environment and these will be analysed in more detail below in sections 4.3 and 4.4 of this chapter.
LOSC is, however, largely silent on the concept of MPAs. It has been suggested that LOSC allows for the creation of MPAs in the Exclusive Economic Zone (EEZ) where coastal states have reasonable grounds for believing that a particular clearly defined area under their jurisdiction is an area where the adoption of special
69
LOSC, (n 63).
70
Malcolm Shaw, International law (6th edn, Cambridge University Press 2008), 556.
71 LOSC, s XV (n 63). 72
mandatory measures for the prevention of pollution from vessels is required.73 Goodwin argues that LOSC only makes specific reference to the creation of MPAs in Article 194 (5). This Article places a clear obligation on states to take measures to protect and preserve rare or fragile ecosystems, as well as the habitat of
depleted, threatened, or endangered species and other forms of marine life.74 However, as will be discussed at section 4.4 below, the obligation may in practice require a wider reading of the Article rendering the requirement that states ‘shall refrain from unjustifiable interference with activities carried out by other states in the exercise of their rights and in pursuance of their duties in conformity with this
Convention’ less restrictive.75
The provisions governing the conservation of the marine environment and its living resources are found in four separate parts of LOSC and each will be addressed separately below. The first are set out in Part V, which establishes the basic law relating to a coastal state’s control over its EEZ. The recognition of the EEZ was to have a significant impact on the UK’s approach to marine conservation in later years following the determination of the Darwin Mounds case at the European Court of Justice. This will be explored in detail in chapter three. The second is set out in Part VII Section 2 and deals with the conservation and management of living
resources of the High Seas. The third, Part XII, establishes a general obligation on states to protect and preserve the marine environment. The fourth is Part XIII, which sets out extensive provisions on the rights of states to conduct scientific research.
73
Edward J. Goodwin, ‘International law and the promotion of marine protected areas for the conservation of coral reef ecosystems’ (University of Nottingham, 2006) 103.
74 LOSC Art. 194 (5) (n 63). 75
In addition, there are a number of agreements relating to LOSC, the most relevant of which to this study is the Straddling Fish Stocks and Highly Migratory Fish Stocks Agreement.76 Adopted in 1995, the agreement established core principles for the conservation and management of such stocks, including the requirement that management must be based on the precautionary approach,77 and the best available scientific information.78
4.2 THE EXCLUSIVE ECONOMIC ZONE
The formalisation of the EEZ can be seen as the significant innovation of the 1982 Convention. The EEZ is an area beyond and adjacent to the territorial sea, subject to a specific legal regime, under which the rights and jurisdiction of the coastal state and, the rights and freedoms of other states, are governed by the relevant
provisions of LOSC. Birnie states that it should be seen as a functional zone rather than one where the coastal state can exercise its territorial sovereignty.79 It does have a sui generis character, being situated between the territorial sea and the high seas, with three principal elements covering the rights of the coastal state, the Convention rights and duties of other States and for the regulation of activities not covered by either of these definitions.80 Of these, the exploitation and conservation of living resources is the most relevant for this study. Whilst LOSC does not
76 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on
the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 34 ILM 1542 (1995); 2167 UNTS 88 adopted 4 August 1995 entered into force 11 December 2001.
77
Ibid Art 6 and Appendix II.
78
Ibid Art 5 (b) and Art 16 (1).
79 Birnie, Boyle and Redgwell, (n 2) 716. 80
mandate the creation of MPAs within EEZs, Birnie argues that in determining the total allowable catch of a stock within its EEZ the state exercising jurisdiction must ensure through proper conservation and management measures that stocks are not threatened by over-exploitation.81 This approach could therefore include protective measures such as the temporary or permanent closure of areas of sea. Such measures meet one definition of the verb to ‘conserve’, which is to prevent wasteful overuse of a resource, but ‘conserve’ has other meanings including ‘to protect something of environmental importance from harm’. It can therefore be argued measures to protect, or aid stock recovery, may entail different approaches to marine conservation more broadly.82
It has been said that in establishing the EEZ that the negotiators at the third UN Conference on the Law of the Sea were seeking to provide a more effective basis for the conservation of marine living resources and it is considered as having provided a better approach to this than the 1958 Fisheries Conservation
Convention.83 The economic importance of the EEZ can be seen in the fact that ninety per cent of commercially exploitable fish stocks and eighty-seven per cent of submarine oil deposits lie within the 200 mile EEZ of coastal states.84
A coastal state which has declared an EEZ has extensive sovereign rights in regard to,
exploring and exploiting, conserving and managing the natural
resources, whether living or non-living, of the waters superjacent to the
81 Birnie 717. 82
Oxford English Dictionary available at https://en.oxforddictionaries.com/definition/conserve accessed January 2019.
83 Ibid 162. 84
seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds [emphasis added].85
Churchill suggests that the reference to non-living resources is a question of drafting rather than substance.86 The exploitation of living resources is not unlimited and coastal states must ‘ensure through proper conservation and management measures that the living resources in the EEZ are not endangered by over- exploitation’.87
Consequently, sovereign rights of exploitation are modified by the duties set out in LOSC to promote the optimum utilisation of the living resources using the best available scientific evidence.88 To avoid over-exploitation of stocks in the EEZ, the coastal state is required to co-operate with competent international organisations ‘whether sub-reginal, regional or global’.89
The scientific advice should allow the coastal state to calculate a total allowable catch (TAC) for the target stock through proper conservation and management measures.90
Furthermore, there are provisions governing situations where a coastal state does not have the capacity to harvest the entire allowable catch and where stocks
straddle national limits or the high seas and a coastal state’s waters. Birnie is surely correct in asserting that optimal utilisation does not necessarily mean full utilisation and a coastal state can restrict catches to ensure conservation. This could remove
85
LOSC, Art 55 (1) (a) (n 63).
86 Churchill 166 (n 14). 87 LOSC Art 61 (2) (n 63). 88 ibid 61 (2). 89 ibid Art 61 (2). 90
any tension between the idea of conservation of stocks to restore populations and their optimum utilisation.91
In addition, coastal states have a duty to adopt measures to limit pollution and to facilitate marine research within their EEZ.92 It has been argued that Article 9(3) of MARPOL makes clear that the jurisdiction of coastal states, when dealing with pollution, should be construed in the light of international law in force at the time of interpretation, or application, of the Convention.93 These rights contrast with those of other states who continue to have rights of overflight, navigation and the laying of submarine cables.
As stated above, LOSC is largely silent in terms of MPAs other than imposing a general, but unspecified, obligation to protect and preserve the marine
environment.94 LOSC does, however, contain detailed provisions on the
conservation of living resources within the EEZ.95 Where states wish to utilise living resources, LOSC mandates that such exploitation be based on research and
regulation.96 LOSC also sets out detailed rights and obligations for coastal states in respect of stocks occurring within the EEZ of two or more coastal states or both within the EEZ and the area beyond and adjacent to it97 highly migratory species;98 marine mammals;99 anadromous stocks;100 catadromous species;101 and sedentary 91 Birnie 717. 92 Ibid 168. 93 Shaw (n 66) 408.
94 LOSC, Art 56 1 (b) (iii) (n 63). 95 Ibid Art 61. 96 Ibid Art 62. 97 Ibid Art 63. 98 Ibid Art 64. 99 Ibid Art 65. 100 Ibid Art 66. 101 Ibid Art 67.
species.102 The reference to anadromous and catadromous species is notable because of the importance of estuarial waters to these creatures.103
The provisions governing the exploitation and management of marine living resources within an EEZ, therefore, provide helpful assistance to the concept of protecting areas of the marine environment albeit in a broad form. This may be asserted on the basis that the right of a coastal state to explore and exploit both the living and non-living resources is counter-balanced by the obligation to conserve and manage those resources.104
4.3 THE CONSERVATION AND MANAGEMENT OF LIVING RESOURCES OF THE HIGH SEAS
Part VII of LOSC sets out the provisions that apply to the High Seas, which consist of all parts of the sea that are not included in a state’s EEZ, territorial sea, or internal waters.105 One estimate suggests that sixty-four percent of the oceans are located in areas beyond national jurisdiction (ABNJ) and this represents fifty percent of the earth’s surface.106
However, there are no provisions for establishing MPAs in ABNJ in Part VII of LOSC other than the general requirement to protect and preserve the
102
Ibid Art 68.
103During important phases of their life cycle individuals must rest to prepare to make the transition from salt
water to freshwater and vice versa. At this point they are highly vulnerable to predation because their locations can be easily identified.
104
Ibid Art 56 1 (a).
105
Ibid Art 86.
106 Kimball A, The International Legal Regime of the High Seas and the Seabed Beyond the Limits of National Jurisdiction and Options for Co-operation for the Establishment of Marine Protected Areas (MPAs) in Areas Beyond the Limits of National Jurisdiction. Secretariat of the Convention on Biological Diversity Technical Series no.19. (Secretariat of the Convention on Biological Diversity Technical Series . 2005) Foreword iii (CBD
marine environment.107 This is logical since under LOSC the High Seas are open to all states.108
Despite the lack of explicit powers in LOSC the Parties to the Convention on Biological Diversity (CBD) have agreed to address the options for international co- operation to establish MPAs in ABNJ.109 As part of this exercise the Parties have set themselves the task of analysing the international legal regime for such areas and the options for co-operation to establish MPAs in those areas. Some, such as the International Commission for the Conservation of Atlantic Tuna (ICCAT) cover single species110, while others such as the North East Atlantic Fisheries
Commission (NEAFC) protect a broader range of fish stocks and seek to protect their parts of the marine environment from the negative impacts of fisheries.111 This work is continuing. In 2005 a report noted that some regional fisheries management organisations (RFMO) have established geographically-based protective measures, including closed areas, and interim prohibitions on destructive fishing practices, such as bottom trawling, that adversely impact vulnerable marine ecosystems.112 It is to be seen non-party states comply with these measures or whether a specific MEA with available enforcement measures is needed if such protected areas are to conform to best international practice.
The work of the RFMO governing waters adjacent to the UK will be discussed
further at section six of this chapter. The creation of MPAs in ABNJ has led to some 107 LOSC Art 192. 108 Ibid Art 87. 109 CBD ABNJ document,, 111 (n 103) 110
See https://www.iccat.int/en/ accessed January 2019.
111
See About the Work of NEAFC about us page available at https://www.neafc.org/about, accessed January 2019.
112
de-facto reduction in the freedom of the high seas through international co-operation
for a common purpose.
4.4 GENERAL PROVISIONS ON THE PROTECTION AND PRESERVATION OF THE MARINE ENVIRONMENT
Part XII of the LOSC sets out a general obligation on states to protect and preserve the marine environment.113 The provisions are largely related to pollution of the marine environment and, in many cases, echo the obligations set out in related conventions and treaties, such as MARPOL.
The provisions acknowledge sovereign rights to exploit their natural resources in line with their environmental policies, but this must be in accordance with their duty to protect and preserve the marine environment.114 This is, of course, entirely in accordance with the basic precept of international law that states are free to determine how to give effect to those obligations in their domestic law. In effect, it wills the ends, but not the means. The provisions also include a raft of measures to prevent, reduce and control pollution of the marine environment. In fact, on closer reading, these measures constitute obligations, as evidenced by the requirement that ‘states shall take all measures necessary to ensure that activities under their
jurisdiction do not cause damage or pollution to other states or their environment’ [emphasis added].115 In particular, measures ‘shall include those necessary to
protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life’.116
In this instance, the duty is expressed as ‘shall’ rather than the more vague expressions 113 LOSC, Art 19 2 (n 63). 114 Ibid Art 193. 115 Ibid Art 194 (2). 116 Ibid Art 194 (5).
‘may’ or ‘can’ found elsewhere in LOSC. The pollution prevention and control measures should be read in conjunction with those of MARPOL, including the Protocol on PSSAs, to understand the full duties placed on a coastal state under LOSC. In practice, each PSSA has its own specific ‘Associated Protective
Measures’ regime, which may include rules such as compulsory ship routing, ship reporting, or areas to be avoided.117
Birnie describes Part XII of LOSC as one of the most important environmental
agreements currently in existence.118 Placing the obligation to protect and conserve before the right to exploit natural resources in the sentence is arguably an indication of the heavier weight the law gives to the former obligation.
4.5 MARINE SCIENTIFIC RESEARCH
Part XIII sets out extensive provisions in respect of the rights of states to conduct marine scientific research. All states, regardless of their geographical location, and competent international organisations, have the right to conduct marine scientific research subject to the rights and duties of other states under the Convention. This is important because the extension of the territorial sea to 12 miles, together with the establishment of the 200-mile EEZ, meant that the area open to unrestricted international scientific research could have been circumscribed. The formalising of this right to carry out marine research was important in helping to avoid restrictions adversely affecting the advancement of science, denying its potential benefits to all nations in fields such as weather forecasting, and limiting the study of effects of
117
‘Explore the world of PSSAs’ Quick Facts about Particularly Sensitive Sea Areas available at
http://www.imo.org/en/OurWork/Environment/PSSAs/Pages/Default.aspxaccessed 12 December 2017 .
118
ocean currents and of the natural forces at work on the ocean floor.119 Many
developing countries had initially been wary of the possibility of scientific expeditions being used as a cover for intelligence gathering or economic gain in areas that were relatively unexplored.120 Often, such programmes of scientific research had led to the acquisition of knowledge of potential economic significance, particularly in
respect of fish stocks and mineral resources. These concerns about the intention of other states were, to some, extent allayed by agreement that in the event that a developing state could demand "prior consent" before a research vessel of another state to carries out research within its area of continental shelf or within its EEZ and to share any data pertinent to offshore resources.
4.6 SETTLEMENT OF DISPUTES
Unlike its predecessors, the 1982 revision of the LOSC incorporated mechanisms for the settlement of disputes within the main text.121 It is, therefore, mandatory for