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Key challenges, opportunities and value of UNCLOS - Coggle Diagram

- - - - preserves freedom of navigation
      - maritime zones
      - peaceful settlement of disputes
      - common heritage of mankind - deep seabed
        
        international equity
    - - achieved through eez
      - protection from pollution
      - argues that it does adequately protect the marine environment
    - - balances interests of research states and coastal states
  - - - desire to settle all issues - pertaining to the law of the sea - Premable
    - - Gavouneli - functional jurisdiction
      - "Red thin line between constructive analysis and moving beyond the scope of a regulatory provision."
    - - Can it occur at the international level?
        
        Fassbender's feaures
        
        system of governance
        
        universality and precedence
        
        issue with art 311?
        
        hierarchy of norms
        
        eternity and amendment
        
        Scott's conclusion
        
        it addresses specific issues and these aren't 'constitutional proper'
    - - Irini Papanicolopulu
      - is the LOSC different to others as people use the sea and have a right to a healthy ocean etc.?
- - - - conserve living resources in the EEZ
      - protect and preserve the marine environment - General duty Art 192
        
        Harrison
        
        Status as a rule can be debated
        
        some tribunals have upheld the normative status of 192
        
        difficult to see how - can be given substantive content - Harrison 23
        
        threats to the "whole" marine environment
        
        all types of harm pg 24
        
        protect from future threats
        
        Applies to and is owed to all states - era omnes
      - co-operate in conserving living resources of the high seas
      - take necessary 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."
      - objective - preamble.
      - do not explicitly refer to biodiversity.. but 194 can be interpreted as meaning as such.. ITLOS case
      - obligation protect habitats 194(5) - threatened, deposed and endangered species
      - Art 206 - procedural rule assess planned activities
    - - Bratspies and Telesetsky - MSY= flawed.
        
        fish populations do not exist in a steady state
        
        intense pressure on fisheries managers to keep catch levels constant rather than responding to fluctuations ?
        
        presumes a a level of knowledge about marine species that rarely exist
        
        assumes a level of compliance that also rarely occurs.
        
        coastal states failed to take into consideration 'relevant environmental ...factors' in calculating MSY - doesn't necessarily follow an ecosystem approach
        
        the negotiations process of MSY -do not always equitably balance economic and environmental interests
        
        UNCLOS focus - optimum utilisation, FSA - emphasised ecosystem based approach
        
        demonstrate though that UNCLOS can support more radical and evolving ideas?
      - Gavouneli
        
        MSY but conservation - best example of LOSC's split personality in respect to fishing
      - Tanaka
        
        total allowable catch - presupposes that the resources considered are only affected by coastal state's harvest.
        
        total allowable catch - also gives large discretion
        
        absence of a dispute settlement mechanism.
        
        MSY fails to take into account not only economic objectives but ecological relationships, quality status of habitat, limits of biomass, other factors disturbing the environment
        
        "overall there appears to be a risk that the coastal state's jurisdiction over natural resources in the EEZ may be approaching grosso modo to that in the territorial sea, even though there are some limitations on the exercise of its jurisidction.
    - - Bratspies and Telesetsky
        
        ignores overfishing on the high seas
        
        art 117 and 118, - do not indicate whether parties collectively decide what is necessary for conservation or simply on a state-by-state basis.
        
        FAO Code of Conduct 1995
        
        focus on the EEZ as a means to control overfishing
      - ABNJ
        
        Tanaka
        
        obligation to cooperate art 117-8 too vague
        
        does not require agreement to be reached
        
        art 119 and MSY
        
        even if states did reach an agreement - would not apply to an interested newcomer.
        
        relies on flag state jurisdiction enforcement
        
        shared fish stocks - art 63(1)
      - Gavouneli
        
        Can a state create ecological zones in their EEZ.- major challenge.. :
        
        even ITLOS at a loss to identify the powers of the states in the EEZ
        
        not inconceivable that suspending navigation in :the EEZ could be necessary to conserve the marine environment
        
        points to art 234 and 211 - coastal state can adopt laws/regulations prevention of vessel pollution/ creation of special areas in the EEZ
        
        if a ship causes pollution incident in EEZ - subject to enforcement jurisdiction - but can't do anything upon suspicion
        
        every state claiming an EEZ has different understanding of the zone
        
        EEZ concept - acquired inherent flexibility
        
        Can UNCLOS support fisheries protection on the High Seas?
        
        ecosystems approach only becomes visible - concern high seas and migratory fish stocks
        
        obligations of cooperation
    - - Bratspies and Telesetsy - lack robustness (EEZ)
        
        too difficult - sheer scale of water to monitor
        
        the legal limitation in UNCLOS - vessels be promptly released upon the posting of a bond.. and states cannot imprison violators of conservation measures unless there is a previous agreement between the flag state and coastal state.
        
        Political withdrawal from conservation measures
        
        High Seas - relies on flag state enforcement. Also problematic when no genuine relationship between a vessel's ownership and the coastal state that has registered it.
        
        FSA - port states were empowered to inspect fishing gear and catch of any vessel flagged to a party and to prohibit landings if the catch violated conservation measures.
        
        FAO Agreement Fishing Vessels on High Seas - intended to supplement UNCLOS - fleshing out flag state responsibility - has not been overly effective - only 39 parties.
        
        FAO Agreement on Port State Measures
      - Jorge Urbina - LOSC fragmentation, zonal approach - factor why IUU so unsolveable
    - - UNCLOS - one Convention with the mandate to address acidification in a comprehensive and integrated/holistic manner - Ellycia Harrould-Kolieb
    - - Art 194(1) - covers all threats. Comprehensive.
      - requires legislation - all sources of marine pollution including land
  - - - Ecosystem based management and restoration
    - - "competent international organisations"
      - not necessarily a bad thing but perhaps also leads to fragmentation at the international level
    - - UNCLOS transferred the zonal management approach from dualism (territorial sea & high sea) to multilateral (5 categories of marine spaces)
      - issues with the zonal approach.
        
        divergence of law and nature
        
        Sectoral approach
        
        international law of co-existence
        
        freedom of the seas - threatens marine living resources, sovereignty also not the answer.
        
        self regulation vs institutional
      - "the ocean is one unity in a physical sense. From a legal viewpoint, however, the ocean has been divided by States."
      - new approach to oceans governance required - truly holistic
        
        long history
        
        common heritage of mankind
        
        integrated management approach - emerging concept
        
        but problem - what this means remains obscure at int law
        
        identifies 3 important elements of int oceans management
        
        focus on ecological interaction - ecosystems approach
        
        normative level - interrelationship between marine issues
        
        integration at the implementation level
      - UNCLOS institutes a dual system - between zonal and integrated management - pg 25
      - precautionary approach, sustainable development
    - - division of ocean spaces (geographically) and jurisdictionally
      - diverging regulations to control human activity in the oceans
      - solution? - norms and tools implemented via increased cooperation and coordination across actors and institutions
      - norms and tools to support integrated oceans governance
        
        no harm rule
        
        ecosystem based approach
        
        sustainable development
        
        polluter pays
        
        cooperation particularly important
        
        between states, between industry and gov..
        
        also recognising the marine environment as the common concern of humankind.
        
        Area based management tools - MSP and MPAs
        
        also discusses - neoliberalism and property rights - elephant in the room..
    - - the Area/Seabed
        
        1982 Convention, undid a draft that dealt with the area in the most holistic/comprehensive manner
        
        Uni-sectoral definition of environmental protection under Part XI of the COnvention
        
        no other int environmental norms applicable to the marine environment as a whole
        
        Part XII is comprehensive only for all sources of marine pollution.
        
        Institutional fragmentation - produces result Pardo warned about
        
        "norms, institutions and science - lies at the heart of decision making at the heart of scientific uncertainty, and it is in this traction that we see the promise of the programmatory law of the Common Heritage of Humanity principle in the environmental field" pg 343
    - - we don't do EIA's for land based activities on the marine environment..
      - cumulative impacts... seeing each project in isolation.