Protection of the marine environment
IMPLEMENTATION OF DESIGNATED PSSAs AND THE ASSOCIATED PROTECTIVE MEASURES
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- NOTES AND QUESTIONS
9 IMPLEMENTATION OF DESIGNATED PSSAs AND THE ASSOCIATED PROTECTIVE MEASURES 9.1 When a PSSA receives final designation, all associated protective measures should be identified on charts in accordance with the symbols and methods of the international Hydrographic Organization (IHO). 9.2 A proposing Member Government should ensure that any associated protective measure is implemented in accordance with international law as reflected in the United Nations Convention on the Law of the Sea. 9.3 Member Governments should take all appropriate steps to ensure that ships flying their flag comply with the associated protective measures adopted to protect the designated PSSA. Those Member Governments which have received information of an alleged violation of an associated protective measure by a ship t1ying their flag should provide the Government which has reported the offence with the details of any appropriate action taken. NOTES AND QUESTIONS 1. Designated PSSAs. The following PSSAs have been designated under the IMO procedure:
6. Developing countries. Beginning in the 1990s, developing countries approached the Global Environment Facility (GEF) for funding and technical assistance to improve the management of Large Marine Ecosystems, including those shared with neighboring nations. The GEF is supporting several hundred marine projects in 156 developing countries. See Alfred M. Duda and Kenneth Sherman, A New Imperative for Improving the Management of Large Marine Ecosystems, Ocean & Coastal Management 45 (2002) 797-833. 7. Marine protected areas and biodiversity beyond national jurisdiction. What legal framework exists to conserve marine ecosystems and marine biodiversity on the High Seas and other marine areas beyond national jurisdictions? Consider UNCLOS Articles 86 and 87; is there any authority for marine protected areas? Consider also the provisions of UNCLOS dealing with the "Area", especially Article 136, which states that the Area and its resources are the common heritage of mankind. This concept constitutes a "third way" that is neither sovereignty nor complete freedom of action. Does this concept provide a basis for marine protected areas or for protecting the genetic resources of areas beyond national jurisdictions from indiscriminate exploitation? Note that Article 133 of UNCLOS defines the resources of the area to include only non-living resources. UNCLOS does not provide any specific regime for either the preservation or the exploitation of marine genetic resources. Professor Tullio Scovazzi has stated that the fact that there is no specific UNCLOS regime for biological resources in areas beyond national jurisdictions constitutes a legal "gap" in UNCLOS. He recommends filling this legal gap by approving a third Implementation Agreement (to go along with the 1994 Part XI Agreement on Seabed Mining and the 1995 Fish Stocks Agreement) that would create a new regime to cover this issue, which was not foreseen at the time of the conclusion of UNCLOS. See Tullio Scovazzi, The Conservation and Sustainable Use of Marine Biodiversity, including Genetic Resources, in Areas beyond National Jurisdiction: A Legal Perspective (2012), available at http://www.un.org/Oepts/los/consultative_process/ICP12_Presentation.pdf. See also Tullio Scovazzi, Marine Protected Areas on the High Seas: Some Legal and Policy Considerations (World Parks Congress, Durban South Africa, 2003); and IUCN, Elements of a Possible Implementation Agreement to UNCLOS for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction, Marine Series No. 4 (2012). 1 Benjamin S. Halpern et al, A Global Map of Human Impact on Marine Ecosystems, 319 Science 948-52 (2008). 2 Mr. T.B. Koh of Singapore, the President of the Third United Nations Conference on the Law of the Sea first made this comment at the signing ceremony for UNCLOS. 3 For detailed treatment of the international law of the sea and UNCLOS, see R.R. Churchill and A.V. Lowe, The Law of the Sea (3d ed.) (Manchester: Manchester University Press, 1999). 4 For a comprehensive article on the meaning of this term, see Patricia Mallia, The Applicability of the Principle of the Common Heritage of Mankind to the Waters and Airspace Superjacent to the International Seabed Area, 19 JIML 331 (2013). 5 See http://www.isa.org. 6 Ibid. 7 See Bernard Oxman, The 1994 Agreement and the Convention, 88 Am. J. Int’l L. 687 (1994). 8 See David Caron and Harry N. Schreiber, The United States and the 1982 Law of the Sea Treaty, 11 ASIL Insights, Issue 16 (2007). 9 24 U.S. Weekly Compilation of Presidential Documents 1661 (No. 52), reprinted 28 ILM 284 (1989). 10 Oxman, op. cit. 11 U.N. Doc. A/Conf.48/14/Rev.1 (1972). 12 See Oya Ozcayir, IMO Conventions; The Tacit Consent Procedure and Some Recent Examples, 10 JIML 204 (2004). 13 This rule is also sometimes stated in Latin: sic tuo ut alienum non laeda (use your property so as not to injure that of others). 14 UNEP/GPA/GR/9. 15 E.g., Yoshifume Tanaka, Regulation of Land-Based Marine Pollution in International Law: A Comparative Analysis Between Global and Regional Legal Frameworks 66 ZaoRV 535, 549-50 (2006). 16 See http://www.unep.org/regionalseas/Programmes/default.asp. 18 Council Decision 98/392/EC, invoking as authority EC Treaty Art. 175(1). 19 See Holly Doremus et al, Environmental Policy Law, 5th ed. 808-09 (New York: Thomson/ Foundation Press, 2008). 20 The Intervention Convention was transposed into U.S law by Congress. 33 USC sec. 1471 et seq. 21 See also the Protocol to OPRC Relating to Hazardous and Noxious Substances (the OPRC-HNS Protocol) of 2000 (not in force). 22 See International Oil Pollution Compensation (IOPC) Claims Manual 23-37 (2008). 23 CLC Art. VIII. 24 See http://www.iopcfunds.org. 25 IOPC Claims Manual, op. cit. at 2-4. 26 Patmos incident (1985), reported in International Oil Pollution Compensation Fund Annual Report, 1989, pp. 18-22. 27 Under the international regimes, the CLC and the Funds, recovery of environmental damages are limited in two ways. First, IOPC Fund Resolution 3, First Extra Sess., Oct. 17, 1980, FUND/A/ES.1/13, adopted by the Funds’ Assembly, states that “assessment of compensation to be paid by the Fund is not to be made on the basis of an abstract quantification of damage calculated in accordance with theoretical models.” Second, the CLC Protocol, Art. 1(2) limits damages as follows: “compensation for impairment of the environment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken.” 28 Additionally, Defendants move to dismiss all OPA claimants who have not complied with OPA’s “presentment” requirement. They also question whether Plaintiffs can properly sue parties under OPA who have not been named as “Responsible Parties”, as well as whether VoO Claimants and Moratorium Claimants have stated viable OPA claims. 29 Article III. § 2 extends the judicial power to "all cases of admiralty and maritime jurisdiction." Congress legislates in this area by virtue of the Interstate Commerce Clause and Necessary and Proper Clause. U.S. Const. Art. I. § 8. The Supremacy Clause, Article VI, ensures federal maritime law supersedes state law. See I Thomas J. Schoenbaum, Admiralty and Maritime Law §§ 4-l to 4-2 (4th ed. 2004). 30 “Except as otherwise provided in this Act, this Act does not affect --- (1) admiralty and maritime law; or (2) the jurisdiction of the district courts of the United States with respect to civil actions under admiralty and maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” 33 USC sec. 2751 (c). 31 Because it is plausible that Anadarko and MOEX will be found to be Responsible Parties and thus liable under OPA, OPA claims are not dismissed. 32 Of course, there is no presentment requirement for Plaintiffs to pursue any general maritime law claims which survive the present Motions to Dismiss. 33 The Court does not decide today what constitutes "presentment." OPA requires a claimant to present his or her claim for a "sum certain" to the Responsible Party. How this requirement can be applied in the context of the BP oil spill is unclear. The long term effects on the environment and fisheries may not be known for many years. 34 E.g., Louisiana ex rel. Giuste v. M/V Testbank, 752 F.2d 1019 (5th Cir. 1985) (en banc); Taira Lynn Ltd. No. 5 v. Jays Seafood, Inc., 444 F.3d 371 (5th Cir. 2006). 35 Dan B. Dobbs, The Law of Torts sec. 452, p. 1282 (2000). 36 United Nations Food and Agriculture Organization, World Review of Fisheries and Aquaculture, 2012, pp. 3-10. 37 See http://www.wto.org/english/tratop_e/rulesneg_e/fish. 38 See OECD Country Note on National Fisheries Management Systems, New Zealand, available at http://www.oecd.org/newzealand. 39 At the time, Canada’s Declaration under Art. 36(2) of the Statute of the International Court of Justice excluded from the Court’s jurisdiction “disputes arising out of or concerning conservation and management measures taken by Canada with respect to fishing vessels in the NAFO regulatory area, as defined in the Convention … and the enforcement of such measures.” 40 Article 30(3) of the Vienna Convention on the Law of Treaties provides: When all the parties to an earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under Article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty. 41 Marine Mammal Protection Act, 16 USC sec. 1461 et seq. 42 Marine Mammals Protection Act, NZ Public Law No. 80 (1978). 43 16 USC sec. 1361 et seq. 44 16 USC sec. 1538(a)(1)(A). 46 Ibid. 47 The whaling program is conducted pursuant to permits granted by the Japanese Government to the Institute of Cetacean Research, an organization established under Japanese law. 48 While all three whale species targeted by JARPA II are listed in Annex I of CITES, Japan has entered reservations as to minke and fin whales. Ed. Note: Annex I of CITES includes “all species threatened with extinction which are or may be affected by trade.” 49 Seas and Submerged Lands Act of 1973 Proclamation, Commonwealth of Australia Gazette (Special), No. S290, 29 July 1994. (1994). 50 The UNEP Large Marine Ecosystems Report: UNEP Regional Seas Programme Report and Studies No. 182 ( UNEP, 2008). Directory: userfiles userfiles -> Class Schedule Credit Class Schedule userfiles -> Recovery: What's a Coach Got To Do With It? By Bill Ryan userfiles -> Title: Associate Professor userfiles -> Chief Patron Shri Avinash Dikshit Commissioner Patron userfiles -> Iccf congress, seixal, portugal 5th to 12th October 2002 userfiles -> Unit 1: Exploration and Colonization userfiles -> Ap united States History Course Description userfiles -> Note: Please look through resources very carefully. This is a controversial issue so some sources may have bias. 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