IMPROVED GOVERNANCE OF THE MEDITERRANEAN SEA: NEW TOOLS AND OLD CONCEPTS Nilufer Oral
Nilufer Oral Nota Curricular Co-Chair CEL Oceans, Coasts and Coral Reefs Specialist Group Areas of experience International law, climate change, energy transportation, marine and shipping law, international transactions, European Union environmental law and US criminal law Professional Experience Istanbul Bilgi University Law Faculty 1998- Present Courses taught include international environmental law, European Union environmental law, and the law of the sea. TÜBITAK-MAM (Turkish Science and Research Agency-Marmara Research Center): Legal Advisor on marine environmental law. Advise and prepare reports on international and national law for on-going ballast water project and oil spill response project. Rhodes Academy for the Law of the Sea Rhodes, Center for Oceans Law and Policy University of Virginia Lecturer 2001, 2003 and 2006. IBU Marine Law Research Center Assistant Director 2001-2005. Center s work focuses on energy, marine transportation, navigation and marine environmental issues. Initiated and organized several international conferences relating to shipping and oil transportation. Participated in numerous international conferences and published extensively. Turkish Foreign Ministry. Legal Advisor 1998 2004. Served as legal advisor for the Turkish delegation at the International Maritime Organization. (IMO) and Maritime Safety Committee (MSC) meetings. Aybay & Aybay Law Offices, Istanbul 1997-2002 Position: Of -counsel. Areas of firm practice included maritime law, ship finance and international business transactions. Represented large shipping companies, energy companies and governments. Served as firm lead counsel on a billion-dollar telecommunications tender representing a major foreign telecommunications company. Education University of California, Berkeley. Bachelor of Arts (B.A) Phi Beta Kappa and Chancellor s Award Recipient; University of Santa Clara Law School, Santa Clara, Ca. Juris Doctor ( J.D.) Law Review Member and honors; Université de Paris I (Panthéon) Paris, France. LL.M private international law 50 Lusíada. Direito e Ambiente / Número Especial
Improved governance of the mediterranean sea: new tools and old concepts Visiting Scholarships University of California, Berkeley, Boalt School of Law Visiting scholar, Fall 2008 University of Virginia Law School Scholar-In-Residence, January 2005 Publications Non-Ratification of the 1982 LOS Convention: An Aegean Dilemma of Global and Environmental Consequence: Berkeley Journal of International Law Publicist April 2009 Co-editor, Special Issue: International Journal of Marine and Coastal Law Vol. 23 (2008) Integrated Coastal Zone Management and Marine Spatial Planning for Hydrocarbon Activities in the Black Sea, International Journal of Marine and Coastal Law, Vol. 23 No. 3, September 2008, pp. 453-47 Oil Transportation Security in the Black Sea and the Turkish Straits Journal of International Logistics and Trade 27 Volume 5, Number 1, June 2007, pp.27~45 Co-editor, The Turkish Straits: Legal, navigation and environmental aspects (TÜDAV, Istanbul 2006 User Fees for Straits and Article 43 of the 1982 Law of the Sea Convention 20 Oceans Year Book, 561 (2006) Protection of Vulnerable Marine Ecosystems In Areas Beyond National Jurisdiction: Can International Law Meet the Challenge?, in A. Strati, M. Gavouneli and N. Skourtos (Eds)Time Before and Time After Unresolved Issues and New Challenges to the Law of the Sea Martinus Nijhoff (2006) pp. 85-108 Terror at Sea: Detection and Prevention- The New International Ship and Port Facility Security Code and the Amended SOLAS Chapter XI-2 in M. Nordquist, J.N. Moore and K. Fu (Eds), Recent Developments in the Law of the Sea and China ((Martinus Nijhoff 2005) pp. 335-350 Oil Transportation of Oil and Regional Environmental Policy 11 International Maritime Law, 141-153 (2005) The Environmental Impact of Bringing Caspian Oil to the International Market, Political Islam: Challenges for U.S. Foreign Policy, Aspen Institute Publications (2005) Turkish Straits Bottleneck Lloyds Shipping Economist, 5 April 2005 The Turkish Straits, Oil Transportation and Turkish Policy International Energy Policy, the Arctic and the Law of the Sea, ( Martinus Nijhoff 2005) p.143 The Turkish International Ship Registration 1 Baltic Maritime Law Quarterly 1 (2004) The Black Sea: A Case Study in Regional Cooperation, in, M. H. Nordquist, J. N. Moore and S. Mahmoudi (eds) Proceedings of The Stockholm Declaration and Law of the Marine Environment ( Martinus Nijhoff 2002) p.237 The Black Sea: Regional Relations and the Protection and Protection of Lusíada. Direito e Ambiente / Número Especial 51
Nilufer Oral the Marine Environment Turkish Review of Eurasian Studies (Istanbul 2002) p. 169 Oil and Water: Oil and Transportation Challenges, in M.H. Nordquist and J.N. Moore (Eds), Proceedings Current Marine Environmental Issues and the International Tribunal for the Law of the Sea (Martinus Nijhoff, 2001) honorary positions Member of the Board of Governors of the International Oceans Institute (IOI) Co-chair of the IUCN Oceans, Coastal and Coral Reefs Specialist Group IUCN Commission on Environmental Law Member Group of Legal Experts for the Mediterranean Sea Member Conferences and workshop Organized Maritime Shipping and Biodiversity, IUCN, Istanbul September 2008 First Workshop of the Black Sea Group of Legal Experts, 19 April 2005 Istanbul Energy, EU and a New Order for the Black Sea Basin 18 April 2005 Istanbul The Transtrakya Oil Pipeline, Bilgi University, Istanbul, 6 December 2004 Black Sea: Energy and the Environment. Bilgi University, Istanbul 14 May 2003 Protection and Preservation of the Marine Environment. July 2 Marmaris, 2002 The Impact of Caspian Oil and Gas Development on Turkey and Challenges Facing the Turkish Straits, Istanbul, 9 October 2001 Languages Fluent English, Turkish and French 52 Lusíada. Direito e Ambiente / Número Especial
Improved governance of the mediterranean sea: new tools and old concepts Introduction The Mediterranean Sea, with a population of over 400 million, bordered by twenty-two states, is one of the most densely populated and used seas. For centuries it has been the crossroads for international trade, a maritime tradition that continues today. The Mediterranean Sea supports one of the busiest maritime routes in the world 15 percent of global shipping activity in terms of number of calls at port and 10 percent in terms of dead weight tonnage. The majority (59 percent) of seabourne trade in the Mediterranean takes place from non-mediterranean flagged states creating potential legal challenges in enforcing international shipping standards to prevent vessel-source operational and accidental pollution 1. Sixty percent of the seabourne trade between Mediterranean States is tanker-based trade. Fishing is another key activity in the Mediterranean. Current fishing practices in the Mediterranean may not be sustainable. The majority of Mediterranean commercial fish stock is over-exploited and in some cases fully exploited 2. Illegal, unregulated and unreported (IUU) fishing and harvesting have resulted in the decline of many Mediterranean species such as the red coral (Corallium rubrum). Non-target species have also been threatened with destruction caused by trawling, driftnet and longline fishing practices. Several species, including 60 percent of Mediterranean cetacean and 40 percent of shark and ray species are threatened with extinction. However, most of the fishing activities in the Mediterranean occur within existing national jurisdictions and not on the high seas, and are carried out mostly by Mediterranean countries and not third party countries. The critical issue is whether the Mediterranean coastal States are adequately responding to addressing the multiple ecological challenges? Whether the governance mechanism at the local, sub-regional and regional levels is working? This paper will look at the role of maritime zones, especially the exclusive economic zones, relatively old concepts, for promoting good governance of the Mediterranean Sea marine environment together with recent developments such as the emerging concept of marine spatial planning introduced by the new 1 Study of Maritime Traffic Flows in the Mediterranean Sea prepared jointly by the Regional Marine Pollution Emergency Response Centre for the Mediterranean (REMPEC), the Euro-Mediterranean Partnership and the EUROMED Cooperation on Maritime Safety and Prevention of Pollution from Ships (SAFEMED). 2 Status of Marine Protected Areas in the Mediterranean Sea: A collaborative study by IUCN, WWF and MedPan, (IUCN Gland, Switzerland and Malaga Spain and World Wildlife Fund, France 2008) p. 23. Lusíada. Direito e Ambiente / Número Especial 53
Nilufer Oral Integrated Coastal Zone Management Protocol for the Mediterranean and the EU Marine Strategy Framework Directive, and the role of the IUCN Resolution for Improving the governance of the Mediterranean Sea, all new tools for enhancing good governance of the Mediterranean Sea. 1. Maritime zones - old concepts Maritime zones can be considered to be relatively old concepts used to demarcate the extent of a coastal State s sovereignty and jurisdiction over traditional activities such as shipping and exploitation of natural resources, living and non-living. However, since the old cannon-shot rule of past centuries, which recognized the coastal State jurisdiction of a radius of approximately a three -nautical mile territorial sea belt, both the breadth and the legal status of maritime zones have evolved and extended to reach 200 nautical miles from the territorial sea, and in some cases more 3. With the adoption of the historic 1982 LOS Convention, a total of six types of maritime zones were codified into international law. These included the traditional zones of the internal sea, territorial sea, contiguous zone, continental shelf and high seas, and in addition the exclusive economic zone (EEZ). Each of these zones brings important rights and obligations to the coastal State as well as to third party States engaged in marine related activities. Moreover, each zone provides important legal tools for the effective governance of marine areas. Under international law it is the different maritime zones that provide the coastal states with legal rights to adopt and enforce laws regulating maritime activities. The degree of legal power of coastal States varies according to the maritime zone. The most extensive legal power recognized by international law to the coastal State is to regulate activities in its internal waters, followed by the territorial waters (maximum breadth of 12 nm) and then the continental shelf (maximum breadth of 200 nm) and the EEZ (maximum breadth of 200 nm). The coastal state, one the other hand, has virtually no legal power in the high seas, except from regulating its own nationals and vessels, or to protect its coasts and waters from accidental pollution damage. The specific challenge in the Mediterranean Sea, where no area is wider than 400 nm, is the problem of overlapping maritime boundaries that prevents the coastal States from being able to legally claim the maximum allowable zones allowed under international law without the agreement of their neighbors 4. All Mediterranean coastal States have established a territorial sea, and many 3 Under certain circumstances, article 76 of the 1982 LOS Convention allows a coastal State to extend the outer limits of its continental shelf to a maximum of 350 nm from the baseline of its territorial sea. 4 Article 74 of the 1982 LOS Convention for the EEZ and article 83 for the continental shelf requires that the delimitation of these respective zones between adjacent or opposite coastal State be done by agreement in accordance with international law. 54 Lusíada. Direito e Ambiente / Número Especial
Improved governance of the mediterranean sea: new tools and old concepts have also established a contiguous zone. The challenge in the Mediterranean Sea lies in the establishment of the continental shelf and the EEZ which each can legally extend to 200 nm from the territorial sea limits. The problem is when the boundaries of these zones overlap between neighboring States, international law requires these States to establish boundaries based on mutual agreement. A task that is not always simple when the resources at issue are so valuable. In the Mediterranean very few states have delimited their continental shelf and EEZ maritime boundaries based on mutual agreement or judicial decision. As a result over fifty percent of the Mediterranean Sea remains as high seas where the legal ability of the coastal State to adopt and enforce its laws is virtually non-existent. 2. The importance of maritime zones for good governance Governance of marine areas, which includes the regulation of multiple activities ranging from shipping, tourism, oil exploration, energy development and more, all require a legal framework that is composed of local law, regional laws and international laws. At the regional level, the Mediterranean States have adopted a number of regional treaties related to protection of the marine environment, biodiversity, shipping and fishing activities. The Convention for the Protection of the Mediterranean Sea against Pollution (Barcelona Convention) 5, originally adopted in 1976, modified and renamed in 1995, provides the general principles and the institutional framework for the protection of the marine environment. To date an additional seven implementing protocols have been adopted dealing with: dumping at sea 6 ; prevention and emergency response to pollution by oil and other harmful substances 7 ; land-based pollution 8 ; specially protected areas and biodiversity 9 ; protection of pollution from offshore activities 10 ; transboundary movement of hazardous wastes 11 ; and integrated coastal zone management. In addition, the 1996 Agreement on the Conservation of Cetaceans in the Black Sea, Mediterranean Sea and contiguous Atlantic Area (ACCOBAMS), which aims at the protection of cetaceans, has been ratified by 5 The Convention for the Protection Of The Mediterranean Sea Against Pollution, signed 16 February 1976, in force 12 February 1978 (revised in Barcelona, Spain, on 10 June 1995 as the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean ). 6 The Protocol for the Prevention and Elimination of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft (Dumping Protocol). 7 The Protocol Concerning Cooperation in Combating Pollution of the Mediterranean Sea by Oil and other Harmful Substances in Cases of Emergency (Emergency Protocol). 8 Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources (LBS Protocol). 9 The Protocol Concerning Mediterranean Specially Protected Areas (SPA Protocol). 10 The Protocol for the Protection of the Mediterranean Sea against Pollution Resulting from Exploration and Exploitation of the Continental Shelf and the Seabed and its Subsoil (Offshore Protocol) 11 The Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements of Hazardous Wastes and their Disposal (Hazardous Wastes Protocol). Lusíada. Direito e Ambiente / Número Especial 55
Nilufer Oral most Mediterranean States 12. At the international level the overarching legal standards for marine related activities are established by the 1982 LOS Convention and the 1992 UN Fishstock Agreement, as well as the many IMO Conventions and standards related to shipping, the FAO instruments for fishing, and the related provisions for the 1992 Convention on Biological Diversity (CBD) also have application for the Mediterranean Sea. These legal instruments all represent an international agreement as to standards required to protect the marine environment. However, unless coastal States are able to legally adopt, implement and more importantly enforce these standards against all users of ocean spaces, the degree of good governance over marine resources will be significantly reduced. It is precisely for this reason that effective use of maritime zones should be an importance facet of governance over marine spaces. However, establishing maritime zones without full implementation and enforcement of internationally agreed upon standards for protection and preservation of the marine environment will also diminish the importance of maritime zones. 3. Key maritime activities in the Mediterranean Sea and legal competence as provided for under international law Shipping The Mediterranean Sea is a major shipping route. Under the existing maritime zone governance structure in the Mediterranean Sea, most States have only delimited a territorial sea. While some States have claimed fishing zones or ecological zones, the fact is that most of the Mediterranean Sea remains as high seas. The legal consequence of this is to significantly reduce the legal ability of coastal States to regulate and take enforcement measures against foreign vessels engaged in unlawful dumping activities in the sea, discharge of dangerous or hazardous substances into the sea in violation of internationally accepted standards, as well as regulate other vessel source risks to the marine environment such as ballast water exchange which can introduce harmful alien species. If coastal State were able to agree and establish mutually acceptable EEZs the coastal States ability to adopt and enforce international shipping standards would be improved as provide for by the applicable provisions of the 1982 LOS Convention. For example, under article 220 of the 1982 LOS Convention, if there are clear grounds that there was a violation committed by the foreign flagged vessel during navigation in the EEZ of the coastal State, the latter can request identification information from the vessel while it is navigating through its territorial sea or EEZ, and if such violation has caused substantial discharge causing or threatening to result in significant pollution of the marine environment 12 See http://www.accobams.org/. 56 Lusíada. Direito e Ambiente / Número Especial
Improved governance of the mediterranean sea: new tools and old concepts the coastal State may undertake physical inspection of the vessel if it has refused to provide information or information. More importantly, enhanced cooperation among the Mediterranean States would allow for enhanced port state control by each. Article 218 of the LOS Convention allows for coastal State to exercise port state control over foreign vessels for violations of international standards committed in the EEZ of another State. Thus, coordinated and cooperative actions among the Mediterranean States would further the ability to prevent vessel source pollution in the Mediterranean Sea. Fishing activities, protection of marine mammals and marine habitat One of the most important threats to the Mediterranean Sea is that of overfishing, illegal fishing and unregulated fishing, as well as the hunting of marine mammals. Although most fishing is carried out by Mediterranean States, the fact that most of the Mediterranean Sea remains as high seas seriously undermines the ability of any single coastal State to adopt measures that can protect stocks that lie beyond their national jurisdiction. And while there are a number of international and regional instruments regulating fishing activities, absent effective enforcement of these standards in all parts of the Mediterranean, fish stock will continue to be at risk. The EEZ was created specifically to extend the legal competence of the coastal State to regulate fishing activities so as to conserve and optimize fish stock. Under the 1982 LOS Convention the coastal State has broad competence to adopt laws and regulations, and enforce these, for conservation of marine living resources 13. This includes the right of the coastal State to exclude foreign fishing vessels from its EEZ, unless it cannot exploit all of the total allowable catch as determined by it. In which case, according to article 62, it must allow other State access. The coastal State has important enforcement jurisdiction over foreign fishing vessels engaged in IUU fishing in its EEZ. The coastal State has the competence to determine its total allowable catch and thus regulate over fishing so long as it is best on the best available scientific evidence 14. The coastal State has the competence to determine limitations on catches, activity and fishing capacity (vessel number and size etc.) and thus to prevent over fishing so long as it is based on the best available scientific evidence. Under the 1982 LOS Convention the coastal State may regulate, prohibit or limit the exploitation of marine mammals in the EEZ 15. This would include enforcement of such laws. The coastal State has wide legal powers to adopt laws and enforce such laws for the protection of marine mammals in its EEZ, whereas, in general, it has no legal power to adopt and enforce laws for the protection of marine mammals in the high seas. 13 Article 56. 14 Article 61. 15 Article 65. Lusíada. Direito e Ambiente / Número Especial 57
Nilufer Oral The same powers would extend to the protection of marine habitats within the EEZ of the coastal State. The 1982 LOS Convention expressly gives the coastal State the general legal power to adopt laws and enforce them for protection and preservation of the marine environment, with the proviso that there be no interference with the rights of freedom of navigation of foreign flagged vessels. Protection of the marine environment would necessarily include prevention of habitat destruction. 4. Moving forward: New tools for promoting good governance in the Mediterranean Sea The concerns over the Mediterranean Sea marine environment continue to garner the attention of States and other stakeholders such as NGOs and IGOs. The UNEP Regional Seas administered Mediterranean Sea programme has taken some important legal steps towards the improvement of the governance of the Mediterranean Sea at the regional sea. Specifically, during the last Conference of the Parties held in Almeria Spain in January 2009 the States adopted the new Integrated Coastal Zone Management Protocol which includes the application of marine spatial planning. The European Union is also implementing marine spatial planning (MSP) as part of its new a new marine strategy as adopted in 2008 under the Marine Strategy Framework Directive. Marine spatial planning provides a tool for the organization of different uses of the marine space. However, in order for MSP to be optimally utilized it requires that coastal States have legal competence over the marine spaces, which requires the legal establishment of maritime zones. The International Union for the Conservation of Nature (IUCN), whose members include governments, has undertaken an important initiative to promote governance of the Mediterranean Sea marine environment through organizing a series of workshops of experts focusing on the problems of governance in areas of the Mediterranean Sea which have not been delimited and remain as high seas. The importance of the governance lacuna in the Mediterranean was highlighted during the recent IUCN World Congress held in Barcelona in October 2008 where member governments adopted IUCN Resolution 4.066 titled Improving the governance of the Mediterranean Sea. The Resolution called on the IUCN to support, in collaboration with the organizations and processes involved, and in particular the Union for the Mediterranean, the setting up of an informal and permanent consultation process on the governance of the Mediterranean Sea; to study in detail all the possibilities and conditions with regard to improving the governance of the Mediterranean, basin by basin, including the possible joint declaration of Exclusive Jurisdiction Zones (EJZs) relating to environmental and ecological aspects; to facilitate the implementation of the following actions by relevant States, international organizations and, in particular, the Union for the Mediterranean to inter 58 Lusíada. Direito e Ambiente / Número Especial
Improved governance of the mediterranean sea: new tools and old concepts alia develop an informal consultation process, in the form of a permanent consultation forum; to reinforce all the other possibilities of regional or subregional cooperation for improving the governance of the Mediterranean Sea, in collaboration with various international organizations. Conclusion Maritime zones have been an important part of the arsenal of marine governance since the canon shot rule of traditional international law. The addition of the EEZ as a maritime zone under the 1982 LOS Convention over twenty-five years ago marked an important advancement for the protection and conservation of the marine environment and marine resources in areas that would otherwise be in the high seas and not subject to the legal jurisdiction of coastal States. However, because of the limited marine space in the Mediterranean and the inability of the coastal States to agree to delimitation of EEZs where their boundaries overlap, over fifty percent of the Mediterranean Sea remains as high seas, creating an important weakness in the overall governance framework for the protection and preservation of the marine environment. New developments at the regional level, such as the adoption of the marine spatial planning approach by the Mediterranean MAP and the European Union underlines the need to overcome the governance lacunae created by the Mediterranean maritime space problem. In order to promote and facilitate communication among the states and stakeholders the IUCN has launched an important initiative as reflected in IUCN Resolution for Improving the governance of the Mediterranean Sea, calling upon interested parties and organization to create a permanent mechanism to advance the needed regional cooperative mechanism that will promote the maritime zones necessary to institute the legal tools for ensuring optimal governance of the Mediterranean Sea marine environment. Lusíada. Direito e Ambiente / Número Especial 59