LEGAL PROBLEMS ARISING FROM THE PRESENT STATE OF IMPLEMENTATION OF THE BARCELONA CONVENTION AND ITS PROTOCOLS – A QUESTION OF LAW AND GOVERNANCE By Professor Evangelos Raftopoulos Director of MEPIELAN MAP Legal Adviser

THE PROBLEM OF THE PRESENT STATUS OF RATIFICATION OF THE BARCELONA CONVENTION AND ITS PROTOCOLS I.THE CURRENT SITUATION  The first category includes the amended instruments. The Barcelona Convention, as amended in 1995, has entered into force (9 July 2004) after being accepted by 16 Contracting Parties in accordance with Article 22(4) of the Convention and today 18 out of the 22 CPs have accepted it. Neither the Dumping Protocol (as amended in 1995, and so far accepted by 14 Contracting Parties), nor the Land-based Sources Protocol (as amended in 1996 and so far accepted by 13 Contracting Parties), have as yet entered into force.  The second category includes the two new replacing instruments. The new 1995 SPA & Biodiversity Protocol has entered into force on 12 December 1999 replacing the 1980 SPA Protocol in accordance with its Article 32 and being, so far, ratified by 14 Contracting Parties. The new 2004 Prevention and Emergency Protocol has entered into force on 17 March 2004 replacing the 1976 Emergency Protocol in accordance with its Article 25 and being, so far, ratified by 7 Contracting Parties.  The third category contains two signed but unratified instruments. The 1994 Offshore Protocol signed by 11 Contracting Parties, and, despite the lapse of 11 years, is only ratified by 4 Contracting Parties and is not as yet in force. Similarly, the 1996 Hazardous Wastes Protocol signed by 11 Contracting Parties, and ratified by 5 Contracting Parties and is not as yet in force.

II. THE DIRECT LEGAL IMPLICATIONS FROM THIS SITUATION  From a legal point of view, this situation poses a fundamental question concerning the relationship between the earlier and the new regime of the Barcelona Convention system  Article 22 (former Article 16) of the Barcelona Convention provides in para. 4 that “amendments …. shall enter into force between Contracting Parties having accepted such amendment”.  Thus, the Vienna Convention on the Law of Treaties, 1969 specifically provides in Article 40 (4) that “the amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement.” It also provides that in relation to such a State applies Article 30 (4) (b) of the Convention. Article 30 (4) (b) sets forth the following provision: “when the parties to the later treaty do not include all the parties to the earlier one”, then, “….(b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations.” With respect to the first category, where an amended instrument has entered into force (the amended Barcelona Convention) there is a coexistence of the new and the earlier regime

The same applies with respect to the second category, where a new Protocol has entered into force replacing an earlier one (The 1995 SPA & Bio-Diversity Protocol, The 2002 Prevention & Emergency Protocol, 2002) With respect to those amended instruments of the first category that have not as yet entered into force (the 1976 Dumping Protocol, as amended in 1995, and the 1980 LBS Protocol, as amended in 1996) at the international level, the original (unamended) versions of these Protocols continue to be in force, legally binding all Contracting Parties. Pending the entry into force of these two amended instruments, the only legal obligation that may be invoked against those Contracting Parties that have accepted them is the general obligation not to defeat the object and purpose of a treaty Provided in Article 18 of the Vienna Convention on the Law of Treaties, Similar considerations are applicable to the third category of instruments. Pending the entry into force of the 1994 Offshore Protocol and the 1996 Hazardous Wastes Protocol, those Contracting Parties that have signed them are under the general obligation not to defeat the object and purpose of a treaty provided in Article 18 of the Vienna Convention on the Law of Treaties,  In the light of this situation, the Contracting Parties are obliged to report under two legal regimes

III. ARTICLE 18 OF THE VIENNA CONVENTION ON THE LAW OF TREATIES, 1969: A QUESTION OF A CONTRACTUAL OR OF A MULTILATERAL GOVERNANCE APPROACH? To a limited extent Article 18 of the Vienna Convention has the effect that the signatories to the third category of instruments are bound programmatically, by the object and purpose pending ratification. The Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, 2001, where the Court pronounced that “signed but unratified treaties may constitute an accurate expression of the understanding of the parties at the time of signature.” In the case of the amended but not yet in force instruments, is substantiated positively in the process of generating soft law regime-actions (decisions/recommendations/action plans) specifying their implementation, and with it, the continuously evolving character of the Barcelona Convention regime, irrespective of legal problems.

A declarative specification of the implementation of the amended Dumping Protocol by adopting collectively:  The Guidelines for the Management of Dredged Material, 1999, at the 11th Ordinary Meeting of the Contracting Parties in Malta  The Guidelines for the Management of Fish Waste or Organic Materials Resulting from the Processing of Fish and Other Marine Organisms, 2001, at the 12th Ordinary Meeting of the Contracting Parties in Monaco  The Guidelines – Dumping of Platforms and Other Man-Made Structures at Sea, 2003, at the 13th Ordinary Meeting of the Contracting Parties in Catania (Italy)  The Guidelines – Dumping of Inert, Uncontaminated Geological Materials, Structures at Sea, 2003, at the 14th Ordinary Meeting of the Contracting Parties in Portroz (Slovenia) A declarative specification of the implementation of the amended Land-Based Sources Protocol by elaborating and adopting the Strategic Action Programme (SAP) The operation of Article 18 of the Vienna Convention is to be determined contextually – It is to considered in the framework of governance of the conventional environmental regime (a relational approach).

IV. THE PROBLEM OF REFERENTIAL LINKAGES  Protocols in force make explicit reference to signed but unratified Protocols for the effectiveness and efficiency of their implementation and of the conventional regime as a whole a certain crippling effect on the operation V. THE PROBLEM OF RELATIONAL LINKAGE The relationship between the Barcelona Convention and its Protocols, as a relationship between a framework or umbrella convention and its performative-specyfying protocols, should be carefully approached It marks the transition from the old to the new conventional regime effected by the revision process. Article 29 of the amended Barcelona Convention (old Article 23)  No one may become a Contracting Party to this Convention unless it becomes at the same time a Contracting Party to at least one of the protocols and vice-versa.  Each protocol to the Convention is binding only on the CPs to the protocol in question and decisions concerning the institutional mechanism and the revision of any protocol are taken only by the Parties to the protocol concerned.

Article 4(5) and Article 21 of the Convention  The CPs are generally obliged to cooperate in the formulation and adoption of additional protocols for the implementation of the Convention.  The effect of this relational linkage is that the revision of the regime of the Barcelona Convention system cannot be carried out otherwise but relationally. The transition from the old conventional regime (sectorial environmental governance of the Mediterranean marine environment) to the new conventional regime (integrated environmental governance of the Mediterranean region) inevitably carried with it this relational linkage  A comprehensive reconstruction of the conventional regime – the paradoxical practice by certain CPs

VI. THE PROBLEM OF LANGUAGE BARRIER  Official translation of the formal instruments of conventional environmental regimes is a long process and this is immediately connected with considerable delays in the process of ratification and the entry into force of the new or amended legal instrument.  The language issue becomes considerably more acute when it enters into the field of the non-official, native languages of the Contracting Parties (e.g. Greek, Italian Croatian, Slovenian, Albanian or Turkish) and in relation to soft law regime-actions (Decisions, Declarations, Recommendations, Action Plans, Guidelines) that reflect an intermediary environmental governance

THE PROBLEM OF MANAGING THE CHANGE IN THE BARCELONA CONVENTION SYSTEM  The management of the regime change is indicated in the Barcelona Convention in two processes the process reflected in the amendment procedure the process of adopting additional protocols I. MANAGING THE CHANGE THROUGH REVISION: THE AMENDMENT PROCEDURE AND THE PROBLEM OF ITS APPLICATION IN THE BARCELONA CONVENTION SYSTEM  Revision is legally associated with the amendment of the original conventional instrument nevertheless remaining in force subject to whatsoever amendment is introduced into it.  Revision is then identified with the amendment procedure and its requisite is exclusively the procedural determination of the relationship between the original and the amending consent.  In this framework, the Barcelona Convention contains two provisions that deal with amendment procedure in two different levels.

 Art. 22 provides the amendment procedure of the Convention and its Protocols Any CP may propose these amendments These amendments shall be adopted in a Diplomatic Conference convened by the Secretariat at the request of two-thirds of the Meetings of the CPs These amendments shall be adopted by three-fourths majority vote of the Contracting Parties represented at a Diplomatic Conference Acceptance of amendments shall be notified to the Depositary in writing by each CP These amendments shall enter into force when at least three-fourths of the CPs have notified their acceptance to the Depositary These amendments shall enter into force only between CPs that have accepted them After the entry into force of these amendments any new CP shall become a CP to the instrument as amended.  Art. 23 provides the amendment procedure to the Annexes, The adoption of the amendment to the Annexes to the Convention or the Protocols by three-fourths majority vote of the Meeting of the Contracting Parties Any CP that is unable to approve such amendments, shall so notify in writing the Depositary within a period determined by the CP when adopting the amendments On expiry of this period, such amendments will become effective for all CP which have not submitted the notification mentioned above.

 This two-level pattern of the amendment is to be found in many conventional environmental regimes, especially those of a regional character.  The really crucial aspect of the amendment procedure is that which requires a high percentage of individual acceptances to enter into force  It is characteristic that for the entry into force of amended Barcelona Convention, a legally excessive interpretation was given by the Depositary for which one may express a strong reservation.  How to approach the silence of Art. 22(4) on this matter, II. REPLACEMENT INSTEAD OF AMENDMENT: A PRACTICAL WAY OUT  The CPs to the Barcelona Convention managed the problem of delay in the amendment procedure by resorting to the process of replacement.  Replacement involves the termination of one conventional instrument and the substitution of another which may reproduce any or many of the terms of the original conventional instrument and which operates as a new instrument.

III. THE MANAGERIAL ASPECT OF THE REVISION PROCESS: GOVERNANCE THROUGH RENEGOTIATION  The managerial aspect of the revision process that concerns its least known and systematically neglected negotiable dimension The Mandate for Renegotiation A general mandate by the Meeting of the CPs to the Secretariat  The Role of the Secretariat in the Renegotiation Process The Secretariat plays a central role  The amendment proposals may take three specific forms: that of new and additional articles; that of extensive or limited amendments to the texts of existing articles; and that of deletion of existing articles considered to be obsolete.

 Renegotiation as a Governance Technique  the identification of its context contextual reference : contextual consistency/compatibility: An Added Value Approach  the identification of its form Amendment versus replacement