Ole Kr. Fauchald Characteristics of the marine environment n The character of the marine environment as an ”open access resource” ä The resulting ”tragedy of the commons” ä The traditional ”freedom of the seas” n Conflicting interests: Coastal states vs. flag states ä The exclusive jurisdiction of the flag state – UNCLOS art. 92 n Differences from terrestrial environment ä ”Land-use” ä ”Hunting” ä Pollution from land-based sources ä Alien species

Ole Kr. Fauchald Normative issues n Can UNCLOS be seen as an ”umbrella convention”? ä For issues of jurisdiction: yes ä For fisheries issues: yes ä For issues concerning exploitation of other resources: yes ä For pollution and alien species: ? ä For marine protected areas: ? n The importance of regional regimes n IMO as a ”standard-setting body” ä The importance of port state authority n Are we moving towards an ecosystem based approach?

Ole Kr. Fauchald UNCLOS and environment n Territorial sea ä The issue of ”innocent passage” (art. 21) n Exclusive economic zone ä Coastal state: limited by IMO standards (art and 6) ä Obligations related to management of resources (art. 61-2) n Continental shelf ä Coastal state: limited by the right to lay cables and pipelines (art. 79) n The high seas ä Obligation to take conservation measures (art ) ä Flag state vs. coastal state ä The special issue of migratory species (art. 64-7) – the 1995 Agreement ä Pollution and responsibilities of flag state (art )

Ole Kr. Fauchald Pollution n Distinctions ä Vessel based – UNCLOS, IMO, regional ä Land based (including through water and air) – regional, chemical ä Result of exploration / exploitation – UNCLOS, regional ä Dumping – UNCLOS, regional n Prevention ä Prevention, the issue of jurisdiction and international standards ä Marine protected areas / routing systems ä Legislation and enforcement ä The preference of flag state jurisdiction – is it weakening? n Reparation ä Emergency cooperation ä Issue of responsibility and liability – establishment of funds

Ole Kr. Fauchald Current issues n Moving from a reparative approach to prevention and precaution ä Failure of the current system ä The problem of generating sufficient knowledge ä Art. 6 of the 1995 Agreement, but leaving the issue to be implemented through regional agreements n The challenge of a fragmented institutional structure ä Which are the institutions of UNCLOS? ä UNEP Regional Seas as a success story? ä The divide between fisheries institutions and environmental institutions ä The divide between IMO, UNCLOS and environmental institutions

Ole Kr. Fauchald Marine protected areas n Where has a country the necessary jurisdiction to establish a MPA? n Which are the threats to be addressed? n Which rules of international law would constitute a problem to the establishment of MPAs? n Which procedure must or should be followed?

Ole Kr. Fauchald Southern Bluefin Tuna Case n Australia and New Zealand vs. Japan – experimental fishing for SBT ä The UNCLOS arbitral tribunal concluded that it had no jurisdiction (4/8-00) ä Law vs. facts ä Relationship to the 1993 Convention on the Conservation of the Southern Bluefin Tuna ä Issued provisional measure! Specific limitation on allowable experimental fishing.

Ole Kr. Fauchald MOX plant case n Example of land based pollution n Multiple rules of relevance n ITLOS: Issue of provisional measures ä Objections to jurisdiction rejected ä Not sufficiently urgent! ä Assurances by the UK ä Duty to cooperate n The fate of the case before the ECJ ä Brought by the Commission against Ireland! n The fate of the case before the Arbitration tribunal ä Withdrawn by Ireland!