Mepielan eBulletin - Insights

European Courts Go beyond the IMO Conventions on Civil Liability for Oil Pollution Damage

Fri, 05 Apr 2013 00:00:00 GMT

The IMO Conventions on Civil Liability for Oil Pollution Damage

After the shock caused by the Liberian tanker “Torrey Canyon” accident in 1967 off the United Kingdom coastline, member States of the International Maritime Organization (IMO) established a special international regime aiming at ensuring adequate compensation for victims of pollution damage caused by oil spills from ships.

The first instrument concerning tanker pollution was the International Convention on Civil Liability for Oil Pollution Damage, adopted in Brussels on 29 November 1969 and entered into force on 19 June, 1975. Later on, the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage was signed in Brussels on 18 December 1971 and entered into force on 16 October 1978. After a failed attempt by the Protocols of 1984, the Conventions were amended by two Protocols adopted in 1992, which entered into force on 30 May 1996.[1] On 23 March 2001 the regime was completed with an International Convention on Civil Liability for Damage caused by pollution from bunker oil from ships which entered into force on 21 November 2008. In May 2003, a new Protocol to the 1992 Fund Convention was adopted, establishing a supplementary fund which provided for a third tier of compensation for damages, bringing the maximum amount currently payable to US$ 1160 million.[2]

This conventional package provides for a uniform international civil liability regime applicable to States parties irrespective of the flag State of the tanker and the nationality of the shipowner. It aims at ensuring that appropriate compensation is awarded to victims of pollution damage resulting from accidental escapes or voluntary discharges at sea from ships, caused by oil carried in bulk as cargo or in the bunkers of the ship. The resulting pollution damage must affect the territory of a State party, including the territorial sea or, following the amendments introduced by the 1992 Protocols, the exclusive economic zone or equivalent 200 mile area specified by the coastal State.[3]

The essential legal elements of the international regime established by the 1992 CLC can be summarized as follows. First, the Convention sets up an international civil liability scheme operating between the natural or legal persons affected whose claims for compensation of pollution damage, if not settled otherwise, should be submitted to the competent national court of the State where the polluting damage occurred or preventive measures were taken.[4] Secondly, it provides for a “strict”, no-fault or objective liability regime, arising from the mere establishment of a causal relationship between the tanker incident and the resulting pollution damage, thus excluding the need to prove fault or negligence on the part of the persons involved. Thirdly, the liability is “channelled” to the registered owner of the vessel, which becomes responsible ope legis for any pollution damage caused by the ship. The ship-owner’s liability can only be exonerated if he proves that the damage resulted from acts of war or similar force majeure situations, from wilful acts or omissions of a third party, or from negligence or other wrongful act of the authority responsible for the maintenance of navigational aids in the exercise of its functions.[5] Fourth, the owner’s liability is limited to a maximum amount established by the Convention which is linked to the ship’s tonnage, currently rising up to US$132 million for the larger tankers. The limitation of liability may disappear where it can be proved that the accident resulted from a personal act or omission of the ship-owner, committed recklessly or with intent to cause damage, and with knowledge that such damage would probably occur.[6] Finally, the liability shall be insured, as the owner of a ship carrying over 2000 tons of oil is required to maintain the appropriate insurance or other financial security to cover its liability for pollution damage. A certificate of insurance shall be carried on board.[7] In practice, this certificate is often required by ships flying the flag of a State not party to the Convention, when entering or leaving a port or terminal installation of a State party.

The 1992 Fund Convention established a compensatory regime supplementary to the Civil Liability Convention, operating under the same geographical and legal framework. Its aim is to ensure compensation for damage not adequately covered by the shipowner under the 1992 CLC. This may happen, either when one of the exceptions to the regime of “channelling” of the liability applies, when the owner’s liability insurer is unable to comply fully with its financial obligations, or when the cost of compensating pollution damage exceeds the liability limits set by the 1992 CLC. In such cases, the 1992 Fund Convention provides for a supplementary compensation scheme based on the establishment of an International Oil Pollution Compensation Fund (the IOPC Fund), which is financed by contributions levied on entities receiving an annual amount exceeding 150 000 tons of oil by sea in a State Party to the Fund Convention.[8]

After many years of activity, the international civil liability regime established by the IMO Conventions is generally considered as a model in the field. Indeed, its operational record shows that the system works efficiently in compensating pollution damage caused by minor accidents, settled through non-contentious arrangements between the victims and the IOPC Fund. However, the system is much less efficient in cases of major accidents in which claims for compensation give rise to legal proceedings before the competent national courts.[9] The main inherent limitations of the system are the narrow definition of pollution damage[10], the restricted scope of the losses qualifying for compensation which exclude environmental damage per se[11], the considerable number of parties involved in tanker’s navigation whose liability is excluded ope legis[12], and the relatively small amount of money available to pay compensation.[13] Finally, there is another major shortcoming of the CLC/Fund regime: it only covers pollution damage caused in areas under the sovereignty or jurisdiction of coastal States, thus excluding damages in areas of the high seas or its seabed.[14]

Actions before National Courts

In order to overcome the inherent limitations of the CLC/IOPC Fund regime, several attempts have been made to seek further compensation for damages before national Courts, mainly in the USA and in France. The actions introduced before the Courts of the US, which is not a Party to the IMO civil liability Conventions, have been in general unsuccessful.[15] In particular, US Courts have been reluctant to retain jurisdiction and apply the criteria embodied in the Oil Pollution Act of 1990 with respect to third party claims against involved American companies regarding pollution damages occurring outside the US.

A quite different outcome results from the judicial procedures following the “Erika” accident in 1999 off the coast of Brittany (France) which spilled some 31.000 mt. of heavy fuel-oil, causing major pollution of the Atlantic coast of France. A first lawsuit was filed on 9 June 2000 before the Court of Commerce of Saint Nazaire by the French Commune de Mesquer against the Total group companies, seller of the cargo and charterer of the “Erika”. The plaintiff municipality alleged that, in accordance with French law, the companies of the group were responsible for damage caused by pollutant waste spilled at sea. After the action was dismissed at first instance and on appeal, the municipality of Mesquer went before the Court of Cassation, which, considering that the dispute raised questions of interpretation of the EU Directive 75/442 on waste, stayed the proceedings and referred three questions to the Court of Justice of the European Communities (hereinafter ECJ) for a preliminary ruling.

The ECJ Judgment, rendered on 24 June 2008, held that the heavy fuel oil carried as cargo by the “Prestige” was not waste per se, but that once it was mixed with seawater and sediments, it could be classified as waste under European law. The Court also held that in the case of hydrocarbons spilled by accident at sea, the seller of such hydrocarbons and charterer of the ship carrying them might be considered by the Judge as the producer of such wastes within the meaning of the waste Directive, and therefore, the “previous holder”, for purpose of bearing the costs of disposing of waste in accordance with the “polluter pays” principle. Moreover, the Court held that if the cost of disposing of the waste is not or cannot be borne by the regime established under the CLC and Fund Conventions, by which the Community is not bound, the relevant national law will then have to make provision for that cost to be borne by the previous holders or the producer of the product generating the waste “if they have contributed to the risk”, and that national law and judicial authorities are obliged to do everything possible to achieve that outcome.[16]

In a parallel law suit, the Tribunal de Grande Instance de Paris (hereafter TGI), by a historic ruling of 16 January 2008[17], changed the status quo ante in applying the French “droit commun” in addition to the 1992 CLC/IOPC Fund regime. For the first time in national judiciary practice, the TGI Judgment by-passed the international regime established by the 1992 Conventions, until then considered as self-contained and exclusive, in additionally applying the civil liability scheme established by French law. The Judgment clarified that this was not a violation of the “special” international regime, since the French “common law” applied in tandem with the 1992 Conventions. Actually, the judicial charges against the natural and legal persons prosecuted were not based on the strict liability regime provided for in the 1992 Conventions, but rather on having committed crimes under French law (mainly the crime of pollution), entailing a corresponding civil liability.

As a result, the ruling by the Paris TGI expands the circle of persons liable for the pollution damage caused by the oil spill, by finding that several physical and legal persons, other than those exempted from liability under Article III, 4 of the CLC, exercised control over the activity of the tanker and may have incurred criminal responsibility, which in turn entails civil liability under French law. The list of liable persons includes: the ship's “real” owner, Mr. Savarese (owner of shares in two Liberian companies who controlled the Maltese society appearing as formal owner of the “Erika”); the ship manager, Mr. Pollara; the classification society, the Italian company Rina; and the cargo owner, the French company Total SA. This last finding has attracted some controversy since for the first time in judicial history the company owning the oil transported has been held accountable for a tanker’s accident. However, the ruling bases its decision on the negligence of Total SA in approving the seaworthiness of the “Erika” through the vetting procedure, since this vessel was the subject of a prior negative vetting from other oil companies. In conclusion, all these natural and legal persons are declared guilty of the crime of pollution and sentenced to pay fines of various amounts. As to the subsequent civil liability, the ruling holds all involved parties jointly and severally liable for damage caused by the incident, ordering them to pay compensation totalling € 192.5 million.

The TGI judgment also goes far beyond the IMO civil liability regime in applying the French legal concept of compensable damage which includes not only material damage but also personal injury, moral damage and pure environmental damage. The Court, therefore, considers that the possibility of claiming for purely environmental damage belongs to the French State, to the competent local authorities (departments, but not regions or municipalities) and to NGOs   actually performing environmental protection activities. The ruling also gives relevant guidance concerning the methodology for assessing environmental damage caused by the accident, and the kind of remedial measures that can eventually be applied.

The judgment of the TGI was appealed by those convicted and certain civil parties. The Court of appeal of Paris, in a judgment of 30 March 2010, endorsed the compatibility of the French punitive legislation with the international conventions of the IMO, confirmed the guilt of the accused Savarese, Pollara, RINA and TOTAL, expanded the cast of parties entitled to obtain compensation (to include also the regions and municipalities), increased the compensation for damages (from € 192,5 milion to € 200.6 million) and maintained the compensation for ecological damage. However, to general surprise, the judgment in appeal exonerated Total SA from payment of compensation, by a somewhat surprising reasoning. The ruling confirmed that Total SA, which exercised control of the vessel, had actually committed a criminal fault of negligence in the “Erika” vetting procedure. However, considering that Total SA, and not the subsidiaries of the group, was the true charterer of the vessel, its liability for damage should be excluded pursuant to article III (b) of the CLC because the fault committed could not be characterized as reckless and conscious (faute inexcusable).[18]

The judgment of the Court of appeal of Paris was appealed in cassation by the convicted persons and 36 civil parties. The Attorney General of the Court of Cassation, in its opinion of 24 May 2012, requested the irrevocable cancellation of all actions by estimating that, in accordance with international law, French jurisdiction lacked competence to decide on possible infractions committed by a foreign ship beyond the territorial sea.[19] However, the Court of Cassation, by a judgment of 25 September 2012[20], confirmed the findings of the lower Court except in one point: it declared Total SA guilty of alleged crimes and responsible for damage caused, including ecological damage. In its considerations, the Court of Cassation repeatedly evokes the IMO Conventions and the United Nations Convention on the law of the sea of 1982, which must be interpreted bearing in mind its “object and purpose” according to the provisions of the Vienna Convention on the law of treaties of 1969. Thus, after reading in a new (but ortodox) light the provison in article 221, paragraph 5, in combination with articles 220, paragraph 6 and 228 of UNCLOS, the judgment holds that, in case of serious damage to the marine environment, national courts may impose penalties in accordance with their legislation, to give effect to the provisions of the Marpol Convention. Likewise, and without the need to decide on which of the companies of the Group was the true charterer of the vessel, the judgment rules that, in any case, Total SA has committed a reckless and conscious fault in the vetting procedure and is not therefore exonerated of assuming civil liability in accordance with the CLC. Finally, the judgment confirms the compensable character of the purely ecological damage.

Conclusion

An examination of current international maritime practice shows that there are important gaps in the regulation and implementation of responsibilities relating to pollution by vessels, especially in cases of catastrophic accidents such as those of the oil tankers “Erika” in 1999 and “Prestige” in 2002.

The limitations of the international regime established by the IMO Conventions on civil liability for oil pollution damage, especially with respect to compensation for environmental damage per se, have prompted actions before national Courts seeking appropriate reparation from parties (other than the shipowner) involved in the operations of tankers in cases of catastrophic oil spills. In response to these actions, in contrast to US courts, the EU and French courts have taken a legal stand clearly committed to enhancing the effective protection of the marine environment and equitable reparation of damages suffered by victims of oil tanker accidents.

In light of this evolutionary trend, it will be interesting to see the reaction of the IOPC Fund and the eventual willingness of its members to reform the international regime on civil liability for oil pollution damage. And in the meantime, an intriguing question might be also raised: why don’t victim States ever invoke the responsibility of flag States that may have breached their obligations under UNCLOS regarding pollution damage caused by their vessels?

ENDNOTES

As of 31 January 2012, 130 States had ratified the 1992 Civil Liability Convention, and 111 States had ratified the 1992 Fund Convention.
The 2003 Protocol entered into force on 3 March 2005 and so far has 28 States Parties. In order to address the imbalance created by the establishment of the Supplementary Fund between the shipping and oil industries, two voluntary agreements where introduced by the International Group of P&I Clubs: the Small Tanker Oil Pollution Indemnification Agreement (STOPIA) 2006, and the Tanker Oil Pollution Indemnification Agreement (TOPIA) 2006, which entered into force on 20 February 2006. For a description of the functioning of these agreements see: The International Regime for Compensation for Oil Pollution Damage, Explanatory note prepared by the Secretariat of the International Oil Pollution Compensation Funds. July 2009, p. 6.
CLC, Art. II, and Fund Convention Art. 3.
CL Art. IX.
CLC Art. III.
CLC Art. V.
CLC Art. VII.
FUND Convention Art. 10.
This was stated by the French Senate report, prepared after the “Erika” accident, stressing that the limitations of the IOPC Fund system does not guarantee adequate compensation for victims in cases of major disasters (Richemond Report 2000).
CLC, Art. I, 6.
In the case of environmental damage, compensation is limited to reasonable measures of reinstatement actually undertaken or to be undertaken, other than the loss of profit from such environmental impairment and (arguably) the costs of “preventive measures” taken to prevent or minimize such environmental damage. See: Ibrahima, D. “Recovering Damage to the Environment per se Following an Oil Spill: the Shadows and Lights of the Civil Liability and Fund Conventions”, RECIEL, 14-1, 2005, p. 64.
Article III, paragraph 4 of the Convention provides that “no claim for compensation for pollution damage under this Convention or otherwise may be made against” a long list of physical and legal persons involved with tankers operations “unless the damage resulted from their personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.” See: Jacobson, M. “The International Oil Pollution Compensation Funds and the International Regime of Compensation for Oil Pollution Damage”. In Basedow, J. & Magnus,U. (Eds) Pollution of the Sea - Prevention and Compensation, Berlin-Heidelberg: Springer. 2007 c, p. 138.
In cases of massive pollution disasters, such as the “Erika” or the “Prestige”, the aggregate sum payable by the owner and its insurer and by the IOPC Funds were € 185 million (“Erika”) and € 171,5 million (“Prestige”), whereas the total cost of damages is far beyond these sums. After the 2003 amendments to the Fund Convention entered into force the compensation ceilings have been increased to around € 1.000.0000.
UNCLOS refers in Part XII to the protection and preservation of the “marine environment” which undoubtedly includes all marine areas both within and beyond national jurisdiction. More generally, the International Court of Justice has stated that the obligation to prevent damage to areas beyond national jurisdiction is part of contemporary international environmental law (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, I.C.J. Reports 1996. p. 242. para. 29).
Such as in the well-known cases of the “Amoco Cadiz”, in the nineteen eighties, and the “Prestige” in 2003-2012. In the latter case, the final decision of the Court of Appeals of New York in its Judgment of 29 August 2012 was that, even assuming arguendo that the US classification society ABS owed a legal duty to Spain, Spain's evidence failed to create a genuine dispute of material fact concerning whether ABS recklessly breached such a duty.
Case C-188/07 Commune de Mesquer v. Total France SA and Total International Ltd. para. 82-85
Tribunal de Grande Instance de Paris, 11eme chambre – 4eme section, Jugement 16 janvier 2008: http://www.dml-avocats.com/fre/actualites/fiches/proces-de-l-erika-le-jugement.htm.
CA Paris, 11e ch. Corr., 30 mars 2010, n? 08/02278. See : Le Couviour, K. « Erika : decryptage d'un arret peu conventionnel. - A propos de l'arret de la cour d'appel de Paris du 30 mars 2010 » La Semaine Juridique Edition Generale n° 16, 19 Avril 2010, 432.
The Attorney General opinion has been critiziced by several maritime law specialists: P. Bonassies, « Sur l'Erika, avant qu'il ne soit trop tard » DMF 2012, n° 736 p. 403 ; J.-P. Beurier, « Une interpretation restrictive du droit » Le Marin 8 juin 2012, p. 6.
Cass. Crim., 25 sept. 2012, n° 3439, cassation partielle sans renvoi: JurisData n° 2012-021445

Offshore Installations: A Compehensive Regime?

Thu, 04 Apr 2013 00:00:00 GMT

At the dawn of the 21st century, we slowly and painfully create a globalized international environment, where technology and the energy that powers it become of paramount importance. Indeed, in the context of the Rio+20 Conference in June 2012, the UN Secretary-General referred to a new emerging human right of primordial importance: a right of access to energy, that would enable vulnerable populations to ac-quire access to information and technology and thus escape the vicious circle of exclusion, illiteracy and poverty.[1]

The Story So Far

Europe does not have for the moment any major indigenous sources of energy. Any European oil and gas produced may be found offshore[2] in the maritime zones around the continent[3] firmly under the jurisdiction of the coastal States, which exercise full sovereignty in their territorial waters[4] and enjoy sovereign rights for the purposes of exploring and exploiting its natural resources in the continental shelf[5] and the Exclusive Economic Zone[6], once such is proclaimed. However, the environmental impact of any major accident could hardly be contained within coastal waters and could potentially develop into a major ecological and financial disaster, affecting the marine environment as a whole. The case of Deepwater Horizon, a $350 million offshore oil-drilling rig operating in the Gulf of Mexico, which blew up in April 2010 causing 11 deaths, a catastrophic oil spill of more than 4 million barrels affecting more than 1000km of coastline, grave damage to private property and fines and penalties to the industry in the neighbourhood of $40 billion[7], was the latest such example with catastrophic repercussions.

Major offshore installations in and around Europe

Source: European Environment Agency

In light of this experience the European Commission revisited in the months following that disaster the existing contingency plans – and it came to the conclusion that, in spite of the increasing importance of the offshore industry for the European economy as a whole, its regulation remains firmly in national hands and thus fragmented, with a wide diversity of rules and regulations on operation, accident prevention procedures, damage mitigation techniques and liability standards.[8] Truth be told, this is the case worldwide and not just in the European continent: the offshore industry has (successfully) resisted any attempt to create common standards and arrive at a globally binding regulatory regime[9] – and it appears that it continues to do so to this day.

The institutional and normative response of the European Commission included an offshore industry regulators’ forum[10] set to supervise and coordinate the enforcement of common standards for the offshore industry, as set out in a draft Regulation on safety of offshore oil and gas prospection, exploration and production activities.[11] On 21 February 2013 the European Parliament and the Council reached a political agreement to change the format of the proposed legislation to a Directive; the reformulated text is expected to be adopted by the European Parliament in the coming months. The news were greeted with some enthusiasm by parts of the industry,[12] which argued that a uniform regulation would somehow lower the existing national standards, while it clearly postpones the binding effect of the new rules for two more years after their final adoption.

A Comprehensive Regime at Last?

Be it as it may, the proposed legislation would provide the most extensive binding international regulation on the offshore industry. Albeit the product of a regional organisation, the Directive will cover offshore operations in areas far wider than the European Union States. It would regulate offshore installations to be found in the totality of EU waters, including the Exclusive Economic Zones (EEZ) and continental shelf in the Baltic Sea, the Northeast Atlantic Ocean (with the Greater North Sea, including the Danish Straits and the English Channel, the Celtic Sea, the Bay of Biscay and the Iberian coast, the waters around the Azores and Madeira and the Canary islands), the Mediterranean Sea and the Black Sea.[13] It would also affect offshore operations in Norway, Iceland and Lichtenstein, members of the European Economic Area (EEA), as well as in the parties to the Energy Community,[14] which includes Albania, Croatia, the Former Yugoslav Republic of Macedonia, Kosovo, Moldova and Ukraine with Turkey and Armenia as observers. In addition, the European Union has also decided to accede to the Madrid 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,[15] thus bringing into a common umbrella the whole Mediterranean basin, including the States of its southern shores.

The proposed regime would cover the full spectrum of offshore operations, from placement and licensing of operations to decommissioning, including the transport of oil and gas through pipelines to another offshore installation, onshore processing or storage activity or on board ship for further transport. It is interesting to note that the new regulations would also apply to existing offshore installations and not only to new installations and operations, built after they come into force. In practice, this would entail a major review of existing operations in all European waters – and even beyond, as the stated will of all shareholders is to expand the common standards applicable in EU operations in all their operations worldwide. On the other hand, this ambitious expansion of the scope of application may not be as dramatic as it seems at first sight since the offshore industry is comprised of a limited number of major companies, which share the incentive to level their playing field.

There is, however, a gaping hole in this comprehensive approach: the draft Directive covers all offshore oil and gas installations but not, for the time being, offshore installations used for renewable power generation. It is worth considering in this respect that the European Union is committed to a very significant expansion of its renewable energy market, with the creation of major offshore wind farms and their related infrastructure;[16] as well as the possibility of developing an offshore carbon capture and storage (CCS) facilities to move carbon dioxide by pipeline to depleted gas fields in the North Sea.[17]

Pillars of regulation

The proposed legislation is built on the basis of the existing EU acquis and the applicable international instruments. The challenge in this respect is not so much the adoption of new rules to cover obvious gaps; it rather lies in its capacity to converge existing regulatory regimes and create therefrom synergies reinforcing the required outcome. In the following paragraphs, I will attempt to highlight some instances of these parallel regimes as they apply in practice before an offshore installation is placed in the marine environment, during the period of its productive operation and after a major polluting incident occurs.

Pillars of regulation I: Before

For oil and gas offshore installations the licensing principle is firmly established both in EU legislation and in the 1995 Mediterranean Offshore Protocol.[18] Technically, the proposed Directive will expand the provisions of Directive 1994/22 on the conditions for granting and using authorizations for the prospection, exploration and production of hydrocarbons.[19] Each stage of the offshore operations is subject to a separate license. With a view to grant any such license, the competent authority would be required to consider all relevant technical and financial risks in addition to a fully-fledged environmental impact assessment, as already required by customary law,[20] the 1991 UNECE Espoo Convention on Environmental Impact Assessment in a transboundary context[21] and the EIA Directive 85/337/EEC, as repeatedly amended.[22]

Particular attention is paid to the need for public participation in the course of the licensing process: draft article 5 requires that the public “shall be given early and effective opportunities to participate in [such] procedures”, due regard being given to safety and security considerations.[23] In effect, this provision reinforces the system created by Directive 2003/35 on public participation[24] and the 1998 UNECE Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters.[25] It is worth noting in this respect that although the somewhat aged text of the Offshore Protocol does not expressly provide for participation of the public in the licensing process, also applicable is the much stronger obligation of article 14 of the 2008 Protocol on Integrated Coastal Zone Management,[26] which is the only binding instrument empowering citizens of the Mediterranean southern shores to have recourse to justice for environmental matters.[27]

Pillars of regulation II: During

The risk assessment exercise takes an even more comprehensive character in the proposed Directive in the form of the Major Hazard Report (MHR). This new environmental tool encompasses best technical and technology practices, best applicable standards in matters pertaining to health and safety at work, as best set out in Directive 89/391/EC on the introduction of measures to encourage improvements in the safety and health of workers at work[28] and its implementing 11th individual Directive 92/91/EEC concerning the minimum standards for improving the safety and health protection of workers in the mineral-extracting industries through drilling,[29] as well as contingency plans and emergency procedures in cases of accident.

These are probably the most important and at the same time the most controversial areas of the proposed legislation.

It is generally accepted that in order to properly assess the effectiveness of a major emergency risk, it is imperative to review all aspects of oil and gas production, including the design of offshore installations and their assorted infrastructure. Therein lies a major regulatory gap as the construction and equipment of offshore structures is not covered by the EU product safety legislation.[30] The only applicable international regulation is the IMO Code for the Construction and Equipment of Mobile Offshore Drilling Units (MODU),[31] which effectively views such offshore platforms as another type of vessel with no real relevance for operations carried out on them.

The same is true for emergency response: The EU Civil Protection Mechanism[32] and the European Maritime Safety Agency (EMSA), set up after the Erica incident, may be expanded to also cover offshore installations. EU accession to the 1994 Mediterranean Offshore Protocol would also allow the integration of the Regional Marine Pollution Emergency Response Centre (REMPEC) for the Mediterranean Sea in offshore emergency prevention, preparedness and response; no such global system exists although the IMO International Convention on Oil Pollution Preparedness, Response and Cooperation (OPRC)[33] does include the obligation of operators of offshore units under the jurisdiction of the parties are also required to have oil pollution emergency plans and coordinate their operation with national systems for responding promptly and effectively to oil pollution incidents.

Therein lies the sticky point: the role of national response systems and their obligation to supervise the system and coordinate emergency response. The industry has adopted over the years a number of emergency plans and has set up formal and informal coordination committees, primarily the Oil Spill Prevention and Response Advisory Group in the United Kingdom and the North Sea Offshore Authorities Forum (NSOAF), coordinating regional cooperation between the competent authorities. The proposed legislation requires that a national competent authority should be entrusted with the overall supervision of the system[34] coordinating transboundary action,[35] essentially through the EU Offshore Oil and Gas Authorities Group.[36]

The exact apportionment of responsibilities will no doubt be subject to further debate and compromise but it is already evident that the central idea is to create an independent authority with the primary goal to regulate “safety and environmental protection” while transferring “primary responsibility for control of major hazard risks” to another set of national authorities, all of which distinct from the authority competent to exercise “functions relating to [national] economic development, in particular licensing of offshore oil and gas activities, and policy for and collection of related revenues”.[37]

The creation of this decentralised system is designed to increase the transparency of the decision-making processes and public accountability. It attempts to internalise lessons learned by the US authorities in the aftermath of the Deepwater Horizon disaster, when the general supervision of the system was transferred to the Bureau of Oceans Energy Management, Regulation and Enforcement (BOEM) since it was felt that the Minerals Management Service was much more geared to revenue-producing licensing rather than the strict supervision and enforcement of environmental and labour standards of operation.[38] The question of efficiency is such a multi-level system of supervision, however, remains open.

Pillars of regulation III: After

The final element remains the horny issue of responsibility and liability for environmental damage. Although the global standard of liability remains vague,[39] the European Union has adopted a comprehensive system of environmental liability in Directive 2004/35[40], which, however, covers only the territorial and surface waters of the member States. It becomes evident, therefore, that an extension of the Environmental Liability Directive to coincide with the scope of application of the proposed instrument is elementary.

An additional line of reflection is the possibility of introducing a requirement for mandatory insurance. Article 14 of the Environmental Liability Directive requires States “to encourage the development of financial security instruments and markets by the appropriate economic and financial operators, including financial mechanisms in case of insolvency, with the aim of enabling operators to use financial guarantees to cover their responsibilities under this Directive”. Would that level of financial liability suffice for offshore operations? It is certainly the case that the offshore industry currently operates on a system of compulsory insurance on the basis of national legislation but it is clear that the full deployment of the EU system would also require a corresponding adjustment to the main instrument of environmental policy.

It is indicative of the trend that, in view of the existing gap in the EU liability toolbox, the European Court of Justice had easy recourse to another, more comprehensively regulated regime, that of waste. In the Commune de Mesquer case,[41] the ECJ felt secure in its decision to affirm that “hydrocarbons accidentally spilled at sea following a shipwreck, mixed with water and sediment and drifting along the coast of a Member State until being washed up on that coast, constitute waste within the meaning of Article 1(a) of Directive 75/442, where they are no longer capable of being exploited or marketed without prior processing”.[42] Although the Court correctly finds a proactive way to render judgment and address existing needs, it is evidently not sustainable to operate a liability regime in a high investment area[43] trusting the sound judgment of this or any other court or tribunal. Clearly, a well-defined framework is urgently needed.

Final remarks

The brief remarks in the previous paragraphs do not purport to conduct any thorough review of the proposed legislation nor to denigrate a commendable effort of comprehensive regulation is a fairly self-organised industry. They rather purport to highlight some areas of concern or simply identify areas where further reflection is required. For the time being, it is clear that the industry has successfully managed to slow down the regulatory process, acquire further scope for negotiation as to the contents of the proposed legislation and effectively put off any implementation well within the next few years – no doubt counting on the inevitable diversion of the required political will once easterly winds turn the weather bell to another direction.

ENDNOTES

UN, Report of the UN Conference on Sustainable Development, Rio de Janeiro, 20-22 June 2012, UN Doc. A/CONF.216/16, paragraph 129. See also Adrian J. Bradbrook & Judith G. Gardam, Energy and poverty: A proposal to harness international law to advance universal access to modern energy services, 37 Netherlands ILR 2010, pp. 1-28.
Strictly speaking, offshore installations may also be found in areas beyond national jurisdiction but the relevant technology remains experimental and expensive and the discussion of the applicable legal regime goes beyond the limited scope of the present paper.
The European Commission indicates that “[t]he number of offshore installations in the North East Atlantic alone exceeds 1,000. Furthermore, while installations in the Black (Romania) and Baltic Seas still only amount to single digits, there are currently over 100 installations operating in EU waters in the Mediterranean (Italy) and plans to start new exploration are reported in the Maltese and Cypriot sectors. Oil and gas exploration or production also takes place in the close vicinity of the EU, off the coasts of Algeria, Croatia, Egypt, Israel, Libya, Tunisia, Turkey and Ukraine.”; Communication from the Commission to the European Parliament and the Council, Facing the challenge of the safety of offshore oil and gas activities, 12 October 2010, COM(2010) 560 final, p. 2. It appears that more than 90% of the oil and 60% of the gas produced in Europe comes from offshore sources.
Article 2 of the 1982 UN Law of the Sea Convention (hereinafter: LOSC).
Article 77 LOSC.
Article 56 paragraph 1a LOSC, which covers ‘sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds’.
For an overview see the workings of the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, available at http://www.oilspillcommission.gov. See also Aditi Mene, The Gulf of Mexico oil spill: Consequences for the oil and gas industry, http://uk.practicallaw.com/3-504-7901 (last visited: 25 March 2013); Marissa Smith, The Deepwater Horizon disaster: An examination of the spill’s impact on the gap in international regulation of oil pollution from fixed platforms, 25 Emory ILR 2011, pp. 1477-1516; Nicholas J. Lund & Niki L. Pace, Deepwater Horizon natural resource damages assessment: Where does the money go?, 16 Ocean & Coastal LJ 2011, pp. 327-353; R. Abeyratne, The Deepwater Horizon disaster – Some liability issues, 35 Tulane Maritime LJ 2010, pp. 125-152; Kyriaki Noussia, The BP oil spill – Environmental pollution liability and other legal ramifications, European Energy & Environmental LR – EEELR 2011, pp. 98-107.
COM(2010) 560 final, supra note 2, p. 3.
For an early discussion, see Maria Gavouneli, Pollution from offshore installations, Martinus Nijhoff 1995.
Commission Decision 2012/07 of 19 January 2012 on setting-up of the European Union Offshore Oil and Gas Authorities Group, OJ C 18/8, 21 January 2012.
Proposal for a Regulation on safety of offshore oil and gas prospection, exploration and production activities, 27 October 2011, COM(2011) 688 final.
Out-law.com, Legal news and guidance from Pinsent Masons, available at http://www.out-law.com/en/articles/2013/february/oil-and-gas-industry-welcomes-provisional-deal-on-eu-offshore-installation-safety-rules/ (last visited: 25 March 2013).
See also article 4 of Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive), OJ L 164/19, 25 June 2008.
Created by the Treaty establishing the Energy Community, concluded in Athens on 25 October 2005 and entered into force on 1 July 2006, OJ L 198/18, 20 July 2006; detailed information available on http://www.energy-community.org/portal/page/portal/ENC_HOME/ENERGY_COMMUNITY/Milestones (last visited: 25 March 2013).
The Madrid Protocol was concluded on 14 October 1995 and entered into force on 24 March 2011; available at http://www.unepmap.org/ (last visited: 25 March 2013).
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Renewable energy: A major player in the European energy market, 6 June 2012, COM(2012) 271 final. See also Michelle Portman, Involving the public in the impact assessment of offshore renewable energy facilities, 33 Marine Policy 2009, pp. 332-338.
M.M. Roggenkamp & A. Haan-Kamminga, CO2 transportation in the EU: Can the regulation of CO2 pipelines benefit from the experiences of the energy sector?, 9 OGEL 2011 = Ian Havercroft, Richard Macrory and Richard B. Stewart (eds.), Carbon Capture and Storage : Emerging Legal and Regulatory Issues, Hart 2011, pp. 107-122; Monica Bergsten, Environmental liability regarding carbon capture and storage (CCS) operations in the EU, EEELR 2011, pp. 108-115.
Articles 4-6 of the Offshore Protocol.
Directive 1994/22/EC of the European Parliament and of the Council of 30 May 1994 on the conditions for granting and using authorizations for the prospection, exploration and production of hydrocarbons, as amended, OJ L 164/19, 25 June 2008.
ICJ, Case concerning Pulp Mills on the River Uruguay, Argentina v. Uruguay, Judgment of 20 April 2010, paragraph 204, available at http://www.icj-cij.org/; see also Ilias Plakokefalos, ICJ, The Pulp Mills case, 26 TIJMCL 2011, pp. 169-183.
The Convention was adopted on 25 February 1991 and entered into force on 10 September 1997, text available at http://www.unece.org/. The European Union is a party.
Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997, Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 and Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009, as consolidated, 25 June 2009.
Draft article 5 paragraph 3.
Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC, OJ L 156/17, 25 June 2003.
The Convention was concluded on 25 June 1998 and entered into force on 30 October 2001, text available at http://www.unece.org/. The European Union is a party. See also Maria Gavouneli, Citizens envi-ronmental rights: The example of the Aarhus Convention, in Aliki Yotopoulos-Marangopoulos, Antonis Bredimas & L.-A. Sicilianos (eds.), Protection of the environment in law and practice, Athens 2008, pp. 125-154 [in Greek].
Adopted on 21 January 2008 in Madrid, it entered into force on 24 March 2011; for the full text see http://www.unepmap.org. The European Union is also party to the Protocol.
I have argued thus in Maria Gavouneli, Mediterranean challenges: Between old problems and new solutions, 23 TIJMCL 2008, pp. 477-497, at pp. 484-485.
Council Directive 89/391/EC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work, OJ L 183/1, 29 June 1989.
Council Directive 92/91/EEC of 3 November 1992 concerning the minimum requirements for improving the safety and health protection of workers in the mineral-extracting industries through drilling, OJ L 348/9, 28 November 1992.
Minimum requirements in relation to mobile non-production installations are met by Regulation (EC) 391/2009 of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspections and survey organisations (recast), OJ L 131/11, 28 May 2009; and Directive 2009/15/EC of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations, OJ L131/47, 28 May 2009.
The 2009 MODU Code was adopted by IMO resolution A.1023(26) in 2009 and constitutes a thor-ough revision of the 1989 MODU Code adopted by resolution A.649(16). It applies to offshore units constructed after 1 January 2012.
Council Decision 2007/779/EC, Euratom of 8 November 2007 establishing a Community Civil Protection Mechanism (recast), OJ L 314/9, 1 December 2007.
Article 3(2) OPRC; the Convention was adopted on 30 November 1990 and entered into force on 13 May 1995.
Draft article 8.
Draft articles 17, 27 and 28.
Supra note 10.
Draft article 19.
Mene, supra note 7, p. 10.
The standard for ships is the IMO International Convention on Civil Liability for Oil Pollution Damage (CLC), adopted on 29 November 1969 and entered into force on 19 June 1975, as substantially amended by a Protocol adopted on 27 November 1992 and entered into force on 30 May 1996.
Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, OJ L 143/56, 30 April 2004.
ECJ, Case C-188/07, Commune de Mesquer v. Total France SA and Total International Ltd, Judgment of 24 June 2008.
Supra, paragraph 63. See also Nicolas de Sadeleer, Liability for Oil Pollution Damage versus Liability for Waste Management: The Polluter Pays Principle at the Rescue of the Victims: Case C-188/07, Commune de Mesquer v Total France SA [2008] 3 CMLR 16, [2009] EnvLR 9, 21 JEL 2009, 299-307; Richard Caddell, Expanding the ambit of liability for oil pollution damage from tankers: The Charter-er's Position Under EU Law: Commune de Mesquer v Total France SA and Total International Ltd, European Court of Justice, Case C-188/07, 15 JIML 2009, pp. 219-223.
Seline Trevisanut, Foreign Investments in the Offshore Energy Industry: Investment Protection v. Energy Security v. Protection of the Marine Environment, in F. Seatzu, T. Treves, S. Trevisanut (eds), Foreign Investment, International Law and Common Concerns, Routledge, Oxford, 2013 (forthcoming, on file with the author).

The Barcelona Convention System as an International Trust Regime: The Public Participation Aspect

Mon, 12 Nov 2012 00:00:00 GMT

An Overview

As I have suggested some years ago and ever since[1], the Barcelona Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean and its seven Protocols, the so-called Barcelona Convention system (BCS)[2] – along with all regional or global conventional environmental regimes – should be constructively explained as a conventionally determined international trust regime. The BCS sets up a conventional regime of international common interest (ICI) governing the protection of the marine environment and the resources of the Mediterranean in a sustainable manner so that the needs of present and future generations should be met in an equitable manner.

This approach substantially and effectively contributes to the sustainable governance of the BCS – and of any conventional environmental regime – reinforcing its legitimation basis related to its continuous, inter-subjective building of ICI in the context of a polycentric international order. Encompassing both the imperative of intergenerational equity and sustainability, and the need for greater governmental accountability to achieve it, the international trust approach constructively brings out the fiduciary aspect of governance of a conventional environmental regime (CER). At the same time, it strengthens our spirit providing a creative and decisive direction towards the development, at all levels, of a more responsible, more sustainably effective, more participatory, more visionary and pragmatic approach to the governance of conventional environmental regimes.

In essence, the public trust approach to the BCS may be associated with the contemporary approach to the public trust doctrine (PTD), as is well established in the US, emanating from the English Common Law of Charitable Trust, and widely internationalized, in an expressed or implied form, in the Constitutions and Statutes of many States all over the world[3]. And it is worth underlining that, in its contemporary approach, the PTD is extended to environmental governance and projects conservationist principles to natural resources, both aquatic and terrestrial, and it generates much more potential. It is a “fiduciary” institution which creates a legal status for the sovereign to hold and govern natural resources in trust for its people, protecting and preserving the environment and resources as a unit in a sustainable manner, for present and future generations. In doing so, it fosters the democratization of decision making and broadly enlightens the qualities in the evolutionary management of public resources ensuring that they would not be lost in low visibility administrative decisions[4].

The Trust Evidence of the Governance of the BCS Regime

In its Preamble, the Barcelona Convention pronounces a far-reaching communitarian approach: it declares that “the marine environment of the Mediterranean Sea Area” is “common heritage for the benefit and enjoyment of present and future generations” and, as a result, the Contracting Parties are responsible for its preservation and sustainable development[5]. The Preamble of the last and most innovative Protocol to the Convention, the ICZM Protocol (2008), makes a step further: it states that the coastal zones of the Mediterranean Sea “are the common natural and cultural heritage of the peoples of the Mediterranean” and, as a result, “they should be preserved and used judiciously for the benefit of present and future generations”[6].

A clear evidence of the trust nature of the governance of the regime of the BCS is to be found in the language of the general obligations. Under Article 4 of the Barcelona Convention, the Contracting Parties are vested with the general obligation-duty, jointly or individually, “to prevent, abate, combat and to the fullest possible extent eliminate pollution of the Mediterranean Sea Area and to protect and enhance the marine environment in that Area so as to contribute towards its sustainable development”. Simultaneously, they are under the duty to implement the Mediterranean Action Plan by taking “appropriate measures”, and, further, to pursue the protection of the marine environment and the natural resources of the Mediterranean as an integral part of the development process, “meeting the needs of present and future generations in an equitable manner”. In doing so, they are entrusted with the application of the precautionary principle, the polluter pays principle, the EIA procedures at national and transnational level, and the promotion of ICZM.

Interestingly enough, the Barcelona Convention and its Protocols, also contain general obligation-duties and rights-powers effectively contextualizing the governance of the conventional regime (e.g. the relational obligation-duty of the CPs to act, when applying the BCS, in conformity with international law and in consistency with the LOSC or applicable IMO Conventions, the Basel Convention or the UN Biodiversity Convention, or, their relational obligation-duty to promote, individually or collectively and through relevant international organizations the implementation of the BCS to all the non-party States)[7].

The above framework identification of the trust evidence of the BCS becomes more specified by a scaled adoption of a series of performative Protocols. This entails a consensual determination of those aspects of ICI covered by the BCS trust regime governing sustainably the Mediterranean marine environment and its natural resources. This all-embracing international trust regime refers – so far – to:

the protection of the marine environment from dumping or incineration at sea, ship pollution and emergencies, land-based sources pollution and pollution from the transboundary movement and disposal of hazardous wastes
the management of offshore hydrocarbons recources in the seabed and the subsoil of the Mediterranean Sea
the protection and management of biodiversity and specially protected areas in the Mediterranean and the coastal zone of the Mediterranean

It is worth stressing that, in this process, the specifying aspects of the international trust regime have two basic contextual characteristics: first, they are not exhaustive – further aspect-specification may be implied by the operation of the ICI purpose of the conventional environmental regime; second, they are constituted and evolved gradually and in response to the regime exigencies – their specification through performative Protocols and their revision is scaled and is generated by negotiated consensus establishment in a time-space context[8].

The Trilateral Structure of the Trust Environmental Governance

Envisaging BCS as an international trust regime, we need to focus on the determination of its trilateral legal structure as required by the trusteeship concept: the trustors/settlers, the trustees and the beneficiaries.

As Trustors or Settlors should be considered the Contracting Parties to the BCS (the Mediterranean States and the EU) establishing a CER of ICI. They constitute Trustors or Settlors in two senses: of collective founders of the BCS as having negotiated the consensus-establishment of the conventional regime (Mediterranean Trustors or Settlors); and of collective representatives of international community as having negotiated and identified the scope of the contextual reference of the BCS to related global conventional regimes or established international practices (International Community Trustors or Trustees). In these two combined senses, they serve ICI.

At the same time, the Contracting Parties should also be considered as ICI regime Trustees: they are vested with powers and duties to govern, as international public trustees, the designated/specified aspects of the trust regime for the benefit of the present and future generations. Likewise, they constitute Trustees in two senses: of Mediterranean Trustees for the implementation or revision of the BCS in their individual-collective identity; and of International Community Trustees for the effective and expanding operation of the contextual inter-linkages of the BCS with related global conventional regimes or established international practices, thus serving ICI.

The people concerned should be considered as Beneficiaries: the Contracting Parties as ICI regime trustees are responsible to all beneficiaries (present and future generations) whereas the current generation is both beneficiary and trustee to the future generation. Acting as Beneficiaries, the public, whatever their legal identity, is empowered to participate in, and hold the Contracting Parties accountable to, reasoned intergenerational decision-making regarding trust governance of the specified aspects (Protocols) of the international trust regime of the BCS. Non-State Actors participating in the horizontal governance partnership with the Contracting Parties – the International Trustees, hold the role of Beneficiaries towards the International Trustees and the role of Relational Trustees towards future generations. And this hybrid role of Non-State Actors as Beneficiaries and Relational Trustees is entirely consistent with the sustainable management of trust resources.

The Public Participation Aspect: The Public as Beneficiaries

At the heart of the public trust approach to the BCS lies the safeguarding of the interests of the beneficiaries – “the present and future generations. A trust environmental governance requires a stronger, more meaningful participation pattern of the public-as-beneficiaries or intergenerational beneficiaries. As a result, the fiduciary aspect of environmental governance will be specifically implemented facilitating the enforceability of the terms of the conventional trust regime and the participatory democratization of its legislative or administrative decision making. It will provide the basis for the development of a coherent, compatible and complementary right to public participation as beneficiaries (Access to information, Public Participation, Access to Justice), thus effectively liberating from the existing low visibility administrative decisions and poor public decision-making of the still-dominating state centric model with respect to the governance of trust resources. Of decisive importance, in this regard, is the normative impact of the relational external context and its specific developments, provided by the Aarhus Convention or the EU relevant legislation.

The Public Participation Evolving Pattern of the BCS

Article 15 of the Barcelona Convention on public information and participation faithfully retains a state-centric backbone. It refers to the standard abstract conception of the public and the widely discretionary duty of the Contracting Parties Parties to give adequate effect, through its national system and its competent authorities, to the participatory right of the public, while it is silent as regards the important third pillar, access to justice. The Contracting Parties are vested with the duty “to ensure” that their competent authorities will give the public appropriate access to environmental information and the opportunity to participate in the decision-making process. Its application is further implied in the implementation of all its seven Protocols. In two of its Protocols, however, the right to public participation is specifically formulated in more advanced terms – although there is a considerable qualitative difference between these two formulations.

Thus, the Specially Protected Areas and Biodiversity Protocol, 1995, provides more specified aspects of the duty to information: to give appropriate publicity to the established of specially protected areas, to inform the public of the interest and value of specially protected areas and species and of their scientific knowledge and promote it to education programmes. It, also, makes a more advanced reference to the duty to public participation: to promote participation of the public and their conservation organizations in measures that are necessary for the protection of the SPAs and species… including EIAs, and to include in the planning and management measures for each specially protected area the active involvement of local communities and populations[9].

The Integrated Coastal Zone Management Protocol, 2008, marking a new generation of sustainability-oriented Protocols, provides a distinctly specified framework for public information and participation, even incorporating some the fundamendal standardized language of the Aarhus Convention.

More specifically, Article 6, refers, inter alia, to the duty of the Parties to ensure “appropriate governance allowing adequate and timely participation in a transparent decision-making process by local polulations and stakeholders in civil society concerned with coastal zones”. Article 14, prescribes the duty of the Parties to provide information “in an adequate, timely and effective manner” so as to ensure efficient governance through effective public participation. As is more specifically provided therein, the Parties “with a view to ensuring efficient governance throughout the process of the integrated management of coastal zones” have the duty to “take the necessary measures to ensure the appropriate involvement in the phases of the formulation and implementation of coastal marine strategies, plans and programmes or projects, as well as the issuing of the various authorizations, of the various stakeholders”. These stakeholders are indicated, but also general forms of participation are indicatively prescribed, involving inter alia “consultative bodies, inquiries or public hearings, and may extend to partnerships”. More importantly, Article 14 makes the important step forward to provide the stakeholders’ right to access to justice in this regard: the Parties have the duty to make available the right to recourse to legal or administrative Justice “to any stakeholder challenging decisions, acts or omissions” presumably by private persons and public authorities, as is stated in Article 9(3) of the Aarhus Convention. In addition, this duty of the Parties is expanded to ensure the right of the stakeholders to access to other independent means of settlement of disputes, “other than a court of law” in the wording of the Aarhus Convention (Article 9(1), of a political (mediation) or a mixed character (conciliation). Such a right to access by stakeholders “is subject to the participation provisions established by the Parties with respect to plans, programmes or projects concerning the coastal zone”.

On the other hand, the participation of the stakeholders in plans, programmes or projects concerning the coastal zone requires the development of a systematic, long term strategy of information which is a sine qua non condition for generating a meaningful and knowlegable participation of stakeholders in these plans, programmes and projects. For this purpose, Article 15 of the Protocol provides for the duty of the Parties to carry out awareness-raising activities on ICZM at all levels (national, regional and local) and to “develop educational programmes, training and public education on the subject”, and further to establish or support specialized national research centres providing interdisciplinary scientific research, thus advancing the relevant knowledge, contributing to public information and facilitating public and private decision-making.

The Relational Impact of the Aarhus Convention as a Supplementary Context

The public trust approach would require an effective harmonization of public participation in all Protocols being appropriately supplemented by the 1998 UNECE Aarhus Convention[10]. The relational impact the Aarhus Convention on the normative development and construction of Article 15 of the Convention may be approached to from various, interrelated, scaled and dynamically operating ordering aspects.

First, the Aarhus Convention constitutes the normative supplementary context for those Contracting Parties of the BCS which have ratified this Convention. Twelve Contracting Parties, including the EU, have done so[11] and one has signed it (Monaco) for which the Convention has a relevant normative and evidentiary value[12].

Second, with respect to the rest of the Contracting Parties which are not members of the Economic Commission of Europe, the Aarhus Convention constitutes a normative referential context which should normally be taken into account when implementing Article 15 of the Barcelona Convention and, as such, its impact can be substantial for a number of reasons.

- In the first place, being already obligatory for more than a half of the Contracting Parties, the Aarhus Convention sets up the specific standards and procedural rights to be appropriately applied by them in context and within the objects and purposes of the BCS: the specification of these standards and procedural rights takes into consideration the particularities of the context of the BCS, the objects and purposes of the established conventional regime and its developing practice, since they acquire a separate regime existence.

- In the second place, the regime established by the Aarhus Convention contains certain distinctive innovative elements which clearly reinforce the approximation of the function of the two contexts in the framework of the BCS. Thus, it provides for the possibility of expanding the scope of its geographical application and, hence, of relativizing its regionality: Article 19 (3) states that any other State that is simply a Member of the United Nations may accede to the Convention upon approval by the Meeting of the Parties, thus indicating the de-regionalization of its standards and procedural rights and, in effect, the possibility of its eventual transformation into a conventional regime with more global/extra regional characteristics. Moreover, it lays down, under Article 3(7), the general duty of each Contracting Party to promote the application of the principles of the Convention in any international environmental decision-making process and within the framework of any international organization when dealing with matters relating to the environment. This duty is armed with the innovative Almaty Guidelines on Promoting the Application of the Principles of the Aarhus Convention in International Forums, 2005,[13] subsequently supported by Decisions III/4[14] and IV/3[15] of the Meeting of the Parties to the Aarhus Convention, which are declared to serve as “a source of inspiration to Signatories and other interested States, as well as to multilateral environmental agreements and other international forums, non-governmental organizations and other members of the public having an interest in promoting the application of the principles of the Convention in international forums”[16].

In the framework of the BCS, the Aarhus Convention should work not only as “a source of inspiration” for these Contracting Parties but also as a concrete relational platform generating a coherent, comprehensive and contextually relevant approach to the specification of Article 15 of the Barcelona Convention, already implemented, at various scales and levels, by the members of the ECE Contracting Parties.

Direct evidence of this is to be found in the implementation of declarative instruments of the BCS. Thus, in 2004, the development of guidelines concerning public participation for the preparation, adoption, implementation and follow up of National Action Plans (NAPs) in the framework of the Strategic Action Programme (SAP) for the implementation of the amended Land-Based Protocol, 1980, made reference to the Aarhus Convention because it represented “the most comprehensive available standard that has been agreed upon in this field”[17]. Moreover, the Mediterranean Strategy for Sustainable Development (MSSD) declares that, in order to achieve one of its four major objectives (“Improve governance at the local, national and regional levels”), the principles of the Aarhus Convention should be applied to promoting the involvement of civil society in achieving sustainable development, and that the ratification of the Aarhus Convention constitutes an indicator for the MSSD follow-up[18].

Endnotes

E. RAFTOPOULOS, “The Barcelona Convention System for the Protection of the Mediterranean Sea Against Pollution : An International Trust at Work”, The International Journal of Estuarine and Coastal Law, Vol. 7, 1992, pp. 27-41; Studies on the Implementation of the Barcelona Convention : The Development of an International Trust Regime, Ant. N. Sakkoulas Publishers, Athens, 1997.
The Barcelona Convention (1976, amended 10 June 1995) is a framework convention being specifically implemented by the following seven Protocols: The Protocol for the Prevention of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft or Incineration at Sea (1976, amended 10 June 1995, amendment not yet in force) (“the Dumping Protocol”); The Protocol Concerning Cooperation in Preventing Pollution from Ships and, in Cases of Emergency, Combating Pollution of the Mediterranean Sea (2002) (“the Prevention and Emergency Protocol”), replacing the Emergency Protocol, 1976; The Protocol for the Protection of the Mediterranean Sea Against Pollution from Land-based Sources and Activities (1980, amended 7 March 1996) (“the LBS Protocol”); The Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean (1995) (“the SPA and Biodiversity Protocol”), replacing the SPA Protocol, 1982; 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 (1994) (“the Offshore Protocol”); The Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements of Hazardous Wastes and their Disposal (1996) (“the Hazardous Wastes Protocol”); and The Protocol on Integrated Coastal Zone Management (2008) (“the ICZM Protocol”). On the initiation of the term “Barcelona Convention System” see E. RAFTOPOULOS, The Barcelona Convention and Protocols – The Mediterranean Action Plan Regime (Simmonds & Hill Publishing Ltd., London, 1993). Also, T. SCOVAZZI, “The Recent Developments in the ‘Barcelona System’ for the Protection of the Mediterranean Sea Against Pollution”, International Journal of Marine and Coastal Law, Vol.11, 1996, p. 95.
See M.C. BLUMM & R.D. GUTHRIE, “Internationalizing the Public Trust Doctrine”, 44 U.C. Davis Law Review (2012), available at: http://ssrn.com/abstract=1816628
See, generally, the pioneering article by Sax, J. L. SAX, “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention” 14 UC DAVIS L. REV. (1970) passim.
See Barcelona Convention (1976), Preamble, para. 2.
See ICZM Protocol (2008), Preamble, para. 3.
For express references see e.g. Barcelona Convention (1976), Art. 3, Prevention and Emergency Protocol (2002), Art. 4(2), Hazardous Wastes Protocol (1996), Arts. 6 (4-5), 7(5), 9(8).
E. RAFTOPOULOS, Conventional Environmental Governance and the Mediterranean or PLUS ULTRA (Ant. N. Sakkoulas Publishers, Athens, 2006) passim.
SPA and Biodiversity Protocol (1995), Arts. 19 and 7(2)(c).
Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 1998, 38 ILM (1999), 517. It entered into force on 30 October 2001.
Albania (2001), Bosnia and Herzegovina (2008), Croatia (2007), Cyprus (2003), European Union (2005), France (2002), Greece (2006), Italy (2001), Malta (2002), Montenegro (2009), Slovenia (2004), and Spain (2004).
PERMANENT COURT OF ARBITRATION: Dispute Concerning Access to Information Under Article 9 of the OSPAR Convention (Ireland v. United Kingdom) (The MOX Plant), 42 ILM (2003), 1118, Dissenting Opinion of Gavan Griffith, 1162-1163. This positively supplements the well-known Article 18 of the Vienna Convention on the Law of Treaties (1969) obliging the signatories to refrain from acts that would defeat its objects and purposes peding ratification.
ECE: Report of the Second Meeting of the Parties to the Aarhus Convention, Almaty, Kazakhstan, 25-27 May 2005, ECE/MP.PP/2005/2/Add. 5, Addendum, Decision II/4, Annex.
ECE: Report of the Third Meeting of the Parties to the Aarhus Convention, Riga, Latvia, 11-13 June 2008, ECE/MP.PP/2008/2/Add. 6, Addendum, Decision III/4, Annex.
ECE: Report of the Fourth Meeting of the Parties to the Aarhus Convention, Chisinau, Republic of Moldova, 29 June-1 July 2011, ECE/MP.PP/2011/2/Add. 1, Addendum, Decision IV/3, Annex.
Almaty Guidelines on Promoting the Application of the Principles of the Aarhus Convention in International Forums, 2005, supra note 13, para 3.
MAP: GEF Project “Determination of Priority Actions for the Further Elaboration and Implementation of the Strategic Action Programme for the Mediterranean Sea” – Common Methodology, UNEP-Athens, 2003, 2. Also MAP: Strategic Action Programme – Public Participation in the National Action Plan (NAPs) for the Strategic Action Programme (SAP) to Address Pollution from Land-Based Sources in the Mediterranean Region, UNEP(DEC)/MED/GEF WG.245/7, 3 Feb. 2004, UNEP/MAP, Athens, 2004.
MAP: Mediterranean Strategy for Sustainable Development – A Framework for Environmental Sustainability abd Shared Prosperity, 14th Ordinary Meeting of the Contracting Parties to the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean and its Protocols, UNEP(DEC)/MED IG.16/7, 27 June 2005, UNEP/MAP, Athens, 2006, 8, Annex 2, 33.

The Standards for the Safety and Security of Nuclear Materials

by Dr. Elli Louka, Founder of Alphabetics Development & Investment (ADI), USA — Sun, 11 Nov 2012 00:00:00 GMT

The release of nuclear materials in the environment through an accident or a terrorist act will generate havoc for human health and the environment. The international community has enacted a number of instruments to ensure the safety and security of nuclear materials.

Nuclear Safety

Nuclear safety is one of IAEA’s top concerns and the Convention on Nuclear Safety[1] was negotiated under its auspices. The convention is the first international convention that addresses the safety of land-based nuclear reactors (it does not apply to military and marine power reactors).[2] The fundamental tenet of the convention is that responsibility for nuclear safety rests with the state that has jurisdiction over a nuclear installation. Each state shall “ensure that prime responsibility for the safety of a nuclear installation rests with the holder of the relevant licence and shall take the appropriate steps to ensure that each such licence holder meets its responsibility.”[3] Each state must establish a legislative framework and an independent regulatory body for nuclear energy.[4] Safety within a state is ensured through a system of licensing of operators of nuclear plants coupled with inspections and enforcement.[5] The implementation of the treaty is based on persuasion that is reinforced during the peer review meetings.[6] The peer review meetings have been considered effective because of the information exchange among states and the opportunities provided to them to self-assess their performance.

In addition to the peer review process that is mandatory for state parties to the Convention on Nuclear Safety, the World Association of Nuclear Operators (WANO) has adopted its own review process. The WANO “was formed in May 1989 by nuclear operators world-wide uniting to exchange operating experience in a culture of openness, so members can work together to achieve the highest possible standards of nuclear safety.”[7] The WANO performs peer reviews of nuclear power plants at the request of operators of such plants. An international team consisting of professionals from other nuclear plants -- peers of the staff at the nuclear station reviewed -- conducts the review. The peer review team evaluates the nuclear plant performance based on specific criteria and performance indicators. The peer review process focuses on all aspects of the organization and function of a nuclear power plant including administration, operations, maintenance, engineering support, radiological protection, operating experience, emergency preparedness and safety culture. At the end of the peer review process, a confidential report is forwarded to the utility identifying strengths and areas for improvement. The confidentiality of the report is important because it ensures the free exchange of information between the peer review team and the plant operator. The peer review process seems to be working. Nuclear power plants concerned about their reputation like to benchmark their performance based on objective indicators.[8]

Most utilities operating nuclear power plants have strong operating experience and tend to analyze even low-level events and near-misses. The analysis of such events and reasons they take place is a good way to establish a culture of alertness that should help prevent a major nuclear calamity.[9] Despite improvements in safety, the IAEA is still concerned that national programs do not investigate all the low-level and near-misses events. At the international level, most members of the IAEA report only a fraction of the unusual events that take place in nuclear power plants.[10] Avoiding the risk of a nuclear accident requires endless vigilance, high technical competence and a constant fight against complacency. It requires also a culture willing to derive lessons learned from small incidents to avert large-scale contamination accidents,[11] like the one at Fukushima. The IAEA has emphasized that safety features must be incorporated into the design of nuclear power plants.[12] Nuclear power facilities must have in place a “defense-in-depth.”[13] Defense-in-depth is achieved by a combination of consecutive and independent levels of protection (defense barriers) that would have to fail before radiation reaches people and the environment. The assumption made here is that it is highly improbable that all defenses would fail simultaneously. Therefore, it is highly unlikely that radiation would reach people and the environment.[14]

Physical Protection of Nuclear Material

The Convention on the Physical Protection of Nuclear Material (CPPNM)[15] was adopted to ensure that any material imported or exported for peaceful purposes would receive physical protection based on international standards. The CPPNM covers weapons useable material[16] and includes several preventive measures that must be employed during international transport. States are not allowed to export, import or allow the transit of nuclear material through their territories unless the material is protected under the rules provided in Annex I of the treaty.[17] Annex I divides nuclear material into three categories prescribing for each category measures that must be taken for transport. Category I measures are the most stringent since the materials included in that category are the most hazardous.[18] States are requested to make known to other states their central authority and point of contact that has the responsibility for the protection of nuclear material and for coordinating recovery and response operations in the event of unauthorized removal or a credible threat.[19] States are to inform, coordinate and exchange information in the case of theft, robbery or any other unlawful taking of nuclear material.[20] The convention makes certain acts criminal including illegal acquisition, possession, and use of nuclear material in international and domestic transit or storage.[21]

In 1999, states parties to the convention indicated that a review was necessary to safeguard further radioactive material.[22] The amendment to the convention, now entitled Convention on the Physical Protection of Nuclear Material and Nuclear Facilities,[23] is an attempt to deal more decisively with the problems of nuclear terrorism and sabotage.[24]

The goal of this convention is to achieve and maintain worldwide effective physical protection of nuclear material/facilities used for peaceful purpose and to prevent and combat offenses relating to such material and facilities worldwide.[25] While the 1980 convention applied to “nuclear material used for peaceful purposes while in international transport,”[26] the 2005 amendment applies “to nuclear material used for peaceful purposes in use, storage and transport and to nuclear facilities used for peaceful purposes.”[27]

States are to establish, maintain and implement the appropriate legislative and regulatory framework.[28] The principles governing that framework include:

state responsibility for establishing a physical protection regime for nuclear materials and facilities;
responsibilities of states during international transport (i.e., specifying when responsibility for nuclear material is transferred to an importing state);
establishment of a regulatory authority and the independence of such authority vis-a-vis any other bodies in charge of the promotion of nuclear energy;
primary responsibility of license holders — responsibility rests with the holders of relevant licenses and other authorizing documents;
maintenance of a security culture;
a graded approach to physical protection that has to do with the evaluation of the threat, the attractiveness of the material, and potential consequences associated with the unauthorized removal of the material or with sabotage;
several layers of defense (technical, personnel, organization) that have to be defeated in order to achieve the objective of obtaining nuclear material;
quality assurance programs in order to create confidence that the requirements of physical protection are satisfied;
emergency plans to respond in the case of an unauthorized removal; and
the principle of confidentiality of information.[29]

Additionally cooperation, exchange of information and assistance must be established among states in case of a credible threat of sabotage of nuclear material or facilities or of actual sabotage.[30] Overall, while the amended convention is an improvement over the prior treaty it does not contain specific standards that could be directly incorporated into state legislation.

The IAEA Recommendations on the Physical Protection of Nuclear Material were issued in 1999.[31] They touch on many aspects of nuclear safety but they are short on details that must be filled in by states. The IAEA recommendations, for instance, provide that states must develop a design basis threat (DBT) for all their nuclear facilities. This DBT determines the level of preparedness needed to stop the unauthorized access to nuclear facilities. According to the IAEA, “a design basis threat developed from an evaluation by the State of the threat of unauthorized removal of nuclear material and of sabotage of nuclear material and nuclear facilities is an essential element of a State's system of physical protection. The State should continuously review the threat, and evaluate the implications of any changes in that threat for the levels and the methods of physical protection.”[32]

It has been suggested that instead of leaving it up to states to establish the DBT, the IAEA could recommend that all Category I material, that is the most radioactive material, should have functioning security systems that will defeat the threat of unauthorized removal of nuclear material. The DBTs can differ from one member state to another but, at a minimum, category I material should be protected from: two small teams of well-armed and well-trained outsiders who have at the same time access to inside information (about the functioning of the security system and the location of radioactive material); or one or two well-positioned insiders; or both outsiders and insiders working together.[33]

Furthermore, for category I material, the IAEA recommends that: “A 24-hour guarding service should be provided. The guard force or the central alarm station personnel should report at scheduled intervals to the off-site response forces during non-working hours. Guards should be trained and adequately equipped for their function in accordance with national laws and regulations. When guards are not armed, compensating measures should be applied. The objective should be the arrival of adequately armed response forces in time to counter armed attacks and prevent the unauthorized removal of nuclear material.”[34] It is not detailed, in that paragraph, what the compensating measures in lieu of armed guards may include and states are to decide on their own about the alternative compensating measures.[35]

Overall, the IAEA physical protection standards are objective-oriented.[36] Recommendations that would prescribe all technical details of a physical protection system would be too restrictive for states with different levels of development. If states made a genuine effort to meet the objectives prescribed by the IAEA recommendations, instead of using the occasional lack of specificity to justify lax implementation, nuclear security would have increased all over the world. In other words, creating rigid international standards is not the key to nuclear safety. The question is how to promote a culture that makes the establishment and implementation of standards an urgent matter for states that have radioactive material that can be useful to terrorists. As long as this lack of urgency pervades national systems, states are unlikely to throw their weight behind the further development and application of safety and security standards.

Safety of Irradiated Nuclear Fuel Cargo

The International Code for the Safe Carriage of Packaged Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Wastes on Board Ships (INF Code)[37] became mandatory on January 1st, 2001 by amending the SOLAS Convention.[38]
The code sets the standard for the transport of:

Irradiated nuclear fuel used in nuclear power plants;
Plutonium that results from reprocessing; and
High-level radioactive wastes.[39]

The INF code applies to all ships regardless of date of construction and size, including cargo ships of less than 500 gross tonnage provided they carry the type of materials of INF cargo. The INF code does not apply to warships, naval auxiliary or other ships used only on government non-commercial service, although states are expected to ensure that such ships comply with the code. The code addresses a variety of issues that have to do with the safety of INF cargo such as fire protection,[40] emergency plans,[41] radiological protection equipment[42] and the control of temperature of cargo spaces.[43] Ships carrying INF cargo are assigned to one of three classes, depending on the total radioactivity of INF cargo carried on board, and regulations vary according to class.[44]

Liability for Nuclear Accidents

It can just take an accident for the nuclear energy industry to fall back to the dark ages and many have argued that the Fukushima is just such an accident. A number of international treaties deal with nuclear accidents. The Convention on Early Notification of a Nuclear Accident adopted in 1986, following the Chernobyl nuclear accident, establishes a notification system for nuclear accidents that may have transboundary effects.[45] States must report nuclear accidents and notify other states about an accident’s location, time, radiation releases, and other effects. Other international conventions establish liability rules for operators of nuclear installations for the damage to humans, property and the environment caused by a nuclear incident.[46] The treaties impose strict and limited liability on the operator of a nuclear power plant. In addition, a fund sponsored by states is to supplement the operator’s liability.[47] Liability rules have been established also for the operators of ships that carry radioactive cargo.[48]

The safety and security standards if implemented conscientiously by states could do much to avert nuclear accidents like Fukushima and impose controls on the release of radioactivity when such accidents occur. The matter of truth is, though, that no matter the number of safety and security standards it is difficult to replace the vigilance of the IAEA, states and private actors. This is why when such actors attempt to subvert the existing regulatory system the enforcement response should be decisive.

Endnotes

Convention on Nuclear Safety,1994, reprinted in IAEA Doc. INFCIRC/449 (July 5, 1994), 1963 UNTS 293, 33 ILM 1514 (1994). It entered into force on October 24, 1996.
Nuclear installation under the convention means any land-based civil nuclear power plant including storage, handling and treatment facilities for radioactive materials located on the same site and directly related to the operation of a nuclear power plant. A nuclear power plant ceases to be a nuclear installation when all nuclear fuel elements have been removed permanently from the reactor core and have been stored safely in accordance with approved procedures, and a decommissioning programme has been agreed to by the regulatory body. See art. 2(i), id.
Art. 9, id.
Art. 8, id.
Art. 7, id.
Art. 22, id.
See Homepage of WANO http://www.wano.info/.
See http://www.wano.info/programmes/peer-reviews/.
IAEA, Nuclear Safety Review for the Year 2008, at 12, IAEA Doc. GC(53)/INF/2 (July 2009).
Id. at 13.
Id.
See, e.g., the Multinational Design Evaluation Programme (MDEP) available online http://www.nea.fr/mdep/welcome.html. The MDEP is a multinational initiative. The goal of the initiative is to create innovative approaches that will be useful to national regulatory authorities when they are reviewing new reactor power plant designs.
See IAEA Safety Standards for Protecting People and the Environment, Fundamental Safety Principles, at 13 (Safety Fundamentals, No. SF-1, 2006). The standards establish that: the primary responsibility for safety rests with the person or organization who is responsible for activities or facilities that give rise to radiation risks; an independent regulatory body must be established (independent from a licensing body) that would regulate radiation risks; protection must be optimized to provide the highest level of safety that can reasonably be achieved; and all practical efforts must be undertaken to prevent and mitigate nuclear or radiation accidents.
Id.
Convention on the Physical Protection of Nuclear Material, 1980, reprinted in IAEA Doc. INFCIRC/274/Rev.1 (May 1980) [hereinafter Initial CPPNM ] available online http://www.iaea.org/Publications/Documents/Infcircs/Others/inf274r1.shtml. The convention entered into force on February 8, 1987.
Art. 1, id.
Art. 3, id.
According to annex I, measures during storage incidental to international transport include: “(a) For Category III materials, storage within an area to which access is controlled; (b) For Category II materials, storage within an area under constant surveillance by guards or electronic devices, surrounded by a physical barrier with a limited number of points of entry under appropriate control or any area with an equivalent level of physical protection; (c) For Category I material, storage within a protected area as defined for Category II above, to which, in addition, access is restricted to persons whose trustworthiness has been determined, and which is under surveillance by guards who are in close communication with appropriate response forces. Specific measures taken in this context should have as their object the detection and prevention of any assault, unauthorized access or unauthorized removal of material.” See annex I, para.1, id.
Art. 5(1), id.
Art. 5(2), id.
Arts. 7-13, id.
Report by the Director General, Nuclear Security - Measures to Protect Against Nuclear Terrorism, Amendment to the Convention on the Physical Protection of Nuclear Material, IAEA Doc. GOV/INF/2005/10-GC(49)/INF/6 (Sept. 6, 2005).
See Convention on the Physical Protection of Nuclear Material and Nuclear Facilities, 2005, reprinted in IAEA Doc. GOV/INF/2005/10-GC(49)/INF/6 (Sept. 6, 2005) [hereinafter Amended CPPNM] available online http://www.iaea.org/About/Policy/GC/GC49/Documents/gc49inf-6.pdf.
See Preamble, id.
Art. 1A, id.
Art. 2(1), Initial CPPNM, supra note 15.
Art. 2(1), Amended CPPNM, supra note 23.
Art. 2A(2), id.
Art. 2A(3), id.
Art. 5(3), id.
The Physical Protection of Nuclear Material and Nuclear Facilities, reprinted in IAEA Doc. INFCIRC/225/Rev.4, 1999 (Corrected) [hereinafter IAEA Physical Protection].
Para. 4.1.4, id.
M. BUNN, “Securing the Bomb” 2008, at 151, Project on Managing the Atom, Belfer Center for Science and International Affairs, Harvard Kennedy School (Commissioned by the Nuclear Threat Initiative, Nov. 2008) available online http://www.nti.org/e_research/Securing_the_bomb08.pdf.
Para. 6.2.14 (emphasis added), IAEA Physical Protection, supra note 31.
M.BUNN, supra note 33, at 152.
See also para. 4.4.1, IAEA Physical Protection, supra note 31.
The International Code for the Safe Carriage of Packaged Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Wastes on Board Ships was adopted by a resolution of the Maritime Safety Committee, IMO Doc. MSC.88(71) (May 27, 1999) [hereinafter INF Code].
See International Convention for the Safety of Life at Sea (SOLAS), 1974, reprinted in 1184 UNTS 278, 14 ILM 959 (1975). The convention entered into force on May 25, 1980. Chapter VII of the convention addresses the transfer of dangerous goods to which irradiated fuel and radioactive wastes are now added. The INF Code was adopted by amending Chapter VII of the SOLAS convention.
Chapter 1, INF Code, supra note 37.
Chapter 3, id.
Chapter 10, id.
Chapter 8, id.
Chapter 4, id.
Chapter 1, id.
Convention on Early Notification of a Nuclear Accident, 1986, reprinted in IAEA Doc. INFCIRC/335 (Nov. 18, 1986), 1439 UNTS 275, 25 lLM 1370 (1986).
The international regime for the liability of nuclear operators is a rather complex regime including a number of conventions that supplement each other and are parallel to each other — establishing more or less similar norms. For a summary of the liability regime, see E. LOUKA, International Environmental Law: Fairness, Effectiveness and World Order 462-66 (2006).
Id.
Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material,1971, reprinted in 974 UNTS 255, 11 ILM 277 (1972). The convention entered into force on July 15, 1975. See also Convention on the Liability of Operators of Nuclear Ships, 1962. The convention provides for strict and limited liability of operators of nuclear ships (arts. 2-3). No other person except for the operator can be held liable (art. 2). Operators of warships can also be held liable.

The Black Sea Biodiversity and Landscape Conservation Protocol

Wed, 22 Feb 2012 00:00:00 GMT

Introduction

The Black Sea was once a sea abundant in biodiversity and marine living resources. However, by the 1970s industrialization, the so-called green revolution in agriculture, the Cold War all contributed to the near environmental collapse of this unique sea. In 1992 the United Nations Environmental Programme established the Black Sea regional seas programme. One of the important goals was to stop the loss of biodiversity and restore the once thriving biodiversity and marine life. In 2002 the Black Sea States adopted the Black Sea Biodiversity and Landscape Protocol which entered into force on June 2011. The Protocol provides the Black Sea with a comprehensive legal instrument that represents a modern and innovative approach for protection of biodiversity in the Black Sea. This paper will provide an overview of the key aspects of the Black Sea Biodiversity Protocol.

1. Geomorphology of the Black Sea

The Black Sea, including the adjoining Azov Sea, forms an enclosed basin with a catchment area of over two million square kilometres. The Black Sea shoreline stretches for a total of 4,340 kilometres with a total surface area of approximately 386,000 km2 and a maximum depth of 2,206 metres. The Black Sea is considered to be one of the most isolated seas from the world oceans, connected only by the very narrow Turkish Straits system. The cumulative effect of the abundance of fresh water flowing into the Black Sea from a multitude of rivers from the European and Asian continents,[1] coupled with the narrow Turkish Strait outlet to the Mediterranean Sea creates an extremely slow rate of water exchange for the Black Sea, which in turn has created one of the most anoxic bodies of water and also one of the most poisonous. The marine life of the Black Sea is supported by a narrow layer of surface water, underneath which a 2000-meter column of hydrogen sulphide prevents the sustainability of marine life at lower depths. The precarious water margin within which the Black Sea biodiversity must survive has been further eroded by the anthropomorphic impacts, which began during the 1970s with the so-called green revolution that introduced toxic run-offs from agricultural pesticides and the rapid industrialization that marked this period. The influx of nutrients, phosphorus, pesticides, industrial waste from the surrounding countries, and to a great extent introduced by the Danube River, brought the Black Sea marine environment to the precipice of irreversible damage by 1991, when the UNEP regional sea programme became involved.[2]

2. Decline of Biodiversity

Until the 1960s, the Black Sea was considered to be one of the most productive seas in the world noted for its rich biodiversity. A total of 3774 biological species were identified in the Black Sea before 1996. However, the biodiversity of the Black Sea has significantly declined over the past three decades. In total, the biodiversity taxa for the Black Sea includes 1, 1619 species of fungi, algae and higher plants; 1,983 species of invertebrates, 168 species of fish and 4 species of mammals. A total of 160 species are listed in the Black Sea Red Data book of which forty-one are Black Sea fish species.[3]

However, during the 1970s and early 1980s, the Black Sea began to change from an oligotrophic (high in oxygen) body of water to a eutrophic body of water as a result of anthropogenic factors.[4] Since the 1960s, many anthropogenic factors had an impact on the Black Sea, such as organic matter from agricultural and industrial runoff, domestic sewage, nutrients, toxic substances from industries, pesticides from agriculture, toxic materials from rice culture in the northwestern coastal lowlands, dumping, sand extraction from the shelf, bottom trawling of fish, and introduction of exotic species from ship ballast water.[5]

Eutrophication was exacerbated by industrialization and the development of agriculture[6], the so-called Green revolution, especially along the Danube River, which brought an influx of nutrients and other pollutants. The Danube River discharge into the Black Sea off the Romanian coast reached up to 210 km3 and accounted for approximately seventy percent of the total runoff into the Black Sea. Studies showed that nitrogen runoff had increased eight fold in the Danube and Dneiper Rivers, and two-fold in the Dniester River between the 1960s and 1980s.[7]

One of the most severe impacts of eutrophication has been the dramatic reduction in phytobentos, or algal macrofloral. A victim of the nutrient-created eutrophication in the NWS has been Zernov’s Phyllophora field, the largest aggregation of red agar-bearing algae of the Phyllophora genus in the world. However, between the 1950s and the 1990s, Zernov’s Phyllophora field decreased from occupying an area of 11,000 km2 to 500 km2, and from a biomass of 7-10 million tons to 300,000- 500,000 tons respectively. This massive loss has depleted the Black Sea of an important source of oxygen generation through photosynthesis as well as an important bio-community for 118 invertebrates and 47 species of fish.

One of the great calamities to visit the Black Sea was the accidental introduction of the Mneiopsis leiydi (rainbow comb jelly fish), believed to have been brought by ship ballast water from North America in the early 1980s.[8] By 1988 the Mneiopsis leiydi had penetrated the entire Black Sea, including the Turkish Straits and the Sea of Marmara as well as the Sea of Azov. Without any natural predators, the Mneiopsis leiydi essentially ate and reproduced its way through the Black Sea, attaining a formidable biomass of nearly one billion tons by the end of the 1980s.[9] However, in 1997 the accidental introduction of another exotic species known as the Beroye ovata, also a ctenophore that most fortuitously also happened to be a natural predator of the Mneiopsis leiydi caused a collapse of the Mneiopsis leiydi population.[10]

3. Developing a regional regime for protection of biodiversity

Following the collapse of the former USSR, in 1992 the Black Sea coastal States adopted the Convention for the Protection of the Black Sea Against Pollution[11] (hereinafter the “Bucharest Convention”), laying the foundation for an historical legal and political collaboration in the region. In addition to the Bucharest Convention the six Black Sea coastal States also adopted three Protocols: the Protocol on the Protection of the Black Sea Marine Environment Against Pollution from Land-based Sources (“LBS Protocol”)[12]; Protocol on Cooperation in Combating Pollution of the Black Sea Marine Environment by Oil and Other Harmful Substances in Emergency (“Emergency Protocol”);[13] and the Protocol on the Protection of the Black Sea Environment Against Pollution by Dumping (‘Dumping Protocol”).[14] However, the Black Sea Biodiversity and Landscape Conservation was not adopted until 2002. The need for a separate protocol on biodiversity had been highlighted by the 1996 a Black Sea Transboundary Diagnosis (BS-TDA).[15] Three of the seven categories of “perceived major problems” identified under the 1996 BS-TDA, a science-based assessment of the Black Sea marine environment, concerned threats to marine living resources and marine biodiversity. Paradoxically, however, these remain as the areas where the least progress has been achieved in creating a binding and effective regional legal regime.

The 1996 Black Sea Strategic Action Plan (BS-SAP), which was based on the 1996 BS-TDA, required the Black Sea States to develop and adopt a Black Sea Biodiversity Protocol by 2000, which was to be ratified by national systems by 2001.[16] The 1996 BS-SAP further included a requirement that new conservation areas be designated and existing ones be enhanced. The 1996 BS-SAP, in addition, required that the Black Sea States adopt a Regional Strategy for Conservation Areas by mid-1998 and that it be reviewed every five years.[17] Further, the 1996 BS-SAP provided that by 2000, each Black Sea State was to endeavour to revise or adopt regulations and planning instruments for the protection of conservation areas, which were to be in conformity with relevant international instruments and the Regional Strategy for Conservation Areas.[18]

However, by 2002 when it became evident that almost none of these targets and others set under the 1996 BS-SAP would be fulfilled the timelines were amended and extended. In 2007 a second BS-TDA (2007 BS- TDA) was conducted forming the basis for a second BS-SAP. However, by 2009, when the second BS-SAP was adopted based on the findings of the 2006 BS-TDA, many of the commitments made under the 1996 BS-SAP, as revised in 2002, remained unfulfilled. Somewhat apologetically the 2009 BS-SAP sought to explain this failure on the “overambitious” nature of the commitments made in 1996.[19] Little progress was made between 1996 and 2009; the Black Sea Biodiversity and Landscape Protocol had not been adopted, no regional strategy for an ICZM was adopted, no Regional Strategy for Conservation Areas was adopted, and there has been very slow progress on developing MPAs for the Black Sea. While the Black Sea Commission Report on the Implementation of the Strategic Action Plan for the Rehabilitation and Protection of the Black Sea (2002-2007) reported improvement in biodiversity for the Black Sea since the 1990s, giving the example of the Northwest Shelf, which once deemed dead has shown increased biota (life), the Report, nevertheless, recognized the need for further action, in particular the need to establish a regional conservation strategy for protected areas. The Black Sea Ecological Network was identified as the core objective of the 2002 Black Sea Biodiversity and Landscape Conservation Protocol (BSBLCP-SAP).

4. The 2002 Black Sea Biodiversity and Landscape Conservation Protocol to the Convention on the Protection of the Black Sea Against Pollution (“Black Sea Biodiversity Protocol”)

In 2002 the Contracting Parties adopted the fourth Protocol to the Bucharest Convention, which was the Black Sea Biodiversity and Landscape Conservation Protocol (“Black Sea Biodiversity Protocol”) which entered into force in 2011.[20] The Black Sea Biodiversity Protocol consists of eighteen articles and three annexes. It has incorporated principles from the main international conservation conventions, in particular the 1992 Biodiversity Convention. In addition, as reflected in its title, the Black Sea Biodiversity and Landscape Protocol has further incorporated principles from the 1998 Pan-European Biological and Landscape Diversity Strategy (“PEBLDS”).[21] One important characteristic of the Black Sea Biodiversity and Landscape Protocol is its application to both the Black Sea proper and the Azov Sea, the latter having been excluded from the Bucharest Conventions and the other Protocols. The extension of the geographic scope of application to include the Azov Sea is essential to ensure a truly regional, harmonized and cooperative legal framework for the protection of marine living resources and biodiversity, especially those of a transboundary nature.

The stated purpose of the Black Sea Biodiversity Protocol is to “maintain the Black Sea ecosystem in the good ecological state and its landscape in the favourable conditions” as well as to “preserve and to sustainably manage the biological and landscape diversity of the Black Sea in order to enrich the biological resources”.[22] The objective of achieving the status of “good ecological state” is understood to mean return to the state of the Black Sea marine environment during the 1960s and also to actively “enrich” the level of biodiversity. Furthermore, the Protocol is to serve as the legal instrument “for developing, harmonizing and enforcing necessary environmental policies, strategies and measures in preserving, protecting and sustainably managing nature, historical, cultural and aesthetic resources and heritage of the Black Sea states for present and future generations”.[23] While the intergenerational principle was adopted as part of the application of the principle of sustainable development in the 1996 BS-SAP[24] the Biodiversity and Landscape Protocol marked the first time it was incorporated into a Black Sea legal instrument. However, other than the intergenerational principle and the principle of sustainability, the Protocol does not adopt any other principles or approaches consistent with the Rio Declaration, Agenda 21, the 2002 WSSD decisions or the 1992 Convention on Biodiversity. The Protocol makes only a general reference to the Back Sea ecosystem but with no invocation of the ecosystem or integrated management approach, the precautionary principle, access to information and public participation, scientific cooperation and exchange of information, use of best available scientific evidence etc.

Given that all six of the Black Sea coastal States have ratified the 1992 Convention on Biological Diversity (“CBD”) the Protocol should operate as a regional instrument of cooperation for implementation of its objectives, principle and polices.[25] And while the Black Sea Biodiversity and Landscape Protocol adopted verbatim the definition of “biological diversity” as provided by the CBD[26] the Protocol cannot, however, be characterized as a regional reiteration of the latter. For example, the objectives of these two instruments differ. The CBD provides for the “conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources…”[27] Whereas, the Black Sea Biodiversity and Landscape Protocol makes no reference to the principle of fair and equitable sharing of genetic resources. Rather, the common purpose, as stated, is to maintain the Black Sea ecosystem and its landscape and to protect, preserve and sustainably manage the biological and landscape diversity of the Black Sea. Furthermore, the Protocol does not contain any provisions related to genetic technology.

One of the important tools of in-situ conservation under the 1992 CBD is promoting the establishment of protected areas. The CBD requires that Parties, as far as possible and appropriate, establish a system of protected areas or areas where special measures are needed to conserve biological diversity[28] and to develop guidelines for the selection, establishment and management of such protected or special areas.[29] In regard to marine protected areas, in 2003 the CBD Subsidiary Body on Scientific, Technical and Technological Advice noting the lack of coastal and marine protected areas recommended the establishment of marine protected areas.[30] Among other obligations, the 1992 CBD also requires, as far as possible and appropriate, the use of environmental impact assessments on proposed projects that are likely to have an adverse impact on biological diversity, and to involve public participation.[31] The 1992 CBD further includes a requirement for Parties to promote international technical and scientific cooperation.[32]

The Black Sea Biodiversity Protocol requires the listing of protected areas[33] and species of Black Sea importance,[34] and a list of special measures to protect species listed in Annex II.[35] The Black Sea Protocol also included a provision for exemption of traditional activities meeting certain criteria,[36] the duty to inform the public on the value of protected areas, promote public participation and information on the Protocol;[37] for the Parties to provide financial support according to the capabilities,[38] and the requirement for the Parties to cooperate in conducting scientific research, undertake joint scientific programmes and projects.[39] The Parties are also required to adopt the necessary measures to prevent or regulate the international or accidental introduction of non-indigenous species or genetically modified organisms;[40] the use of environmental impact assessments, making express reference to using criteria and objectives to be regionally developed pursuant to the Convention and international experience …giving as an example the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention).[41]

The Black Sea Biodiversity Protocol also includes a provision requiring that the Parties adopt a legal instrument of integrated coastal zone management as part of their duty to introduce intersectoral interaction at the regional and national levels.[42] Furthermore, the Black Sea Protocol states the responsibility of each of the Parties to fullfil their international obligations for the protection and conservation of the Black Sea, and the requirement for each Party to adopt rules and regulations on the liability of damage caused to the biological and landscape diversity cause by natural or juridical person. Each Party must ensure that its laws “facilitate” legal action and the obtaining of “prompt and adequate compensation or other relief’ for damages caused by human activities or pollution. The Protocol also mandates for the Parties to “co-operate in developing and harmonizing their laws, regulations and procedures relating to liability, assessment of and compensation for damage damage caused by human activities and/or pollution …in order to ensure the highest degree of deterrence and protection for the biological and landscape diversity of the Black Sea as a whole”.[43] Although the Black Sea Biodiversity Protocol made express reference to the Pan European Biological and Landscape Diversity Strategy (PEBLDS), notably missing is any reference to establishing a “network” of protected areas, which is one of the core elements of the PEBLDS. The “network” approach is also a requirement of the EC Habitats Directive[44] for the establishment of the Natura 2000 coherent European ecological network of special areas of conservation, as well as the commitment undertaken by States under the 2002 WSSD Johannesburg Plan of Implementation to establish a representative network of marine protected areas by 2012.[45] The 2008 Black Sea TDA in its review of biodiversity also had recommended an increase in both the number and area of protected areas in the Black Sea.[46]

5. Black Sea Biodiversity and Landscape Strategic Action Plan

According to Article 4(6) of the Black Sea Biodiversity Protocol the Contracting Parties to the Bucharest Convention are required to adopt a Strategic Action Plan for the Protocol within three years of the Protocol coming into force.[47] However, adopting a practical approach, without waiting for the Protocol to come into effect the Parties prepared a strategic action plan as required under the aforementioned provision. The Black Sea Biodiversity and Landscape Protocol - Strategic Action Plan (“BSBLCP-SAP”) aims at adopting specific actions with set time tables. For example, BSBLCP-SAP includes references to the decisions of the 2002 WSSD, including that of halting the loss of biodiversity, which had not been included in the text of the Protocol. The BSBLCP-SAP also makes reference to the 2008 European Marine Strategy,[48] which had not been included in the text of the Protocol.

The core of the BSBLCP-SAP requires that specific actions are to be taken with specified dates. Annex A of the SAP provides a list of all actions to be accomplished between 2005-2007. Under the heading of “Biodiversity and Habitat Conservation” in Part 5.2, the BSBLCP-SAP outlines in detail three key objectives: to prevent appearance of new threatened species and to halt the losses of known threatened species by 2010;[49] increase and improve management of protected areas, in particular marine protected areas;[50] and to restore and rehabilitate damaged areas of previously high biodiversity value.[51] Most of the detailed actions to be taken involve listing of species and habitats as well as establishing common criteria and methodological guidelines. However, in relation to protected areas, for the first time the BSBLCP-SAP makes reference to “networks of Black Sea Reserves”, and emphasizes the designation of transboundary marine protected areas alongside national marine protected areas.[52]

The BSBLCP-SAP also includes detailed series of actions and dates for the fifth objective for landscape conservation. These actions emphasize cooperative actions among the Black Sea coastal States and with the European Landscape Convention. The Parties are also required to cooperate to create a Manual of Best Available Practices in the Field of Landscape.[53]

The BSBLCP-SAP identifies the ecosystem approach and ICZM as the two main tools to be applied in its implementation. However, there is no mention of specific ICZM tools such as marine spatial planning, which has become a key aspect of ICZM in Europe, especially the Marine Strategy and other regional seas programs.

Even before the entry into force of the 2002 Black Sea Biodiversity and Landscape Protocol, the Black Sea Commission, through its Secretariat, have taken measures for the de facto application of the Biodiversity SAP. For example, in May 2007 the European Environmental Agency-EEA-Topic Center for Biodiversity- and the BSC jointly organized a workshop on Habitats Classification and Mapping where a List of Black Sea habitats was developed.[54] The “Lists of Species of Black Sea Importance” and the “Species which exploitation shall be regulated” were further developed and have been regularly updated. Mapping of habitats was undertaken (fish nursery grounds, spawning areas, etc.; sensitivity areas mapping), as a step towards designation of Marine Protected Areas (MPAs) in the Black Sea. New species were added to the List of species whose exploitation should be regulated under Annex 4 of the Protocol.[55] In accordance with the Protocol and SAP the Black Sea Commission also standardized regional methodologies for the collection and analysis of plankton and zoobenthos samples. Guidelines were developed and, according to the BSC Secretariat are widely used in the region.

In relation to designation of marine protected areas, including transboundary areas, an area in between Bulgaria and Romania, Vama Veche to Cape Kaliakra, in the Danube Reserve has been proposed as a site for a transboundary marine protected area. Furthermore, in 2009 the Phyllophora field of Zernov in the north-western part of the Black Sea located in Ukrainian waters, was designated as marine protected area.[56]

In its aim to develop a network of marine protected areas in the Black Sea, the Black Sea Commission had developed guidelines.[57] The first Black Sea Red Data Book was published in 1999 with 158 species. It was recently updated with a total of 259 species are enlisted so far with identified status based on IUCN criteria. The revised Red Data Book were published in 2010.[58] In addition, the BSC conducted a Feasibility Study for an ICZM instrument to the Bucharest Convention. According to the conclusions of the study Black Sea region should develop a number of “soft law” legal instruments such as an ICZM Declaration, a Code of Practice (ICZM Guidelines) and an Action Plan. In the long-term (5-10 years), the study suggested that the BSC could consider developing a legally binding instrument, most likely an in the form of a protocol to the Bucharest Convention.

Conclusion

Some twenty years has lapsed since 1992 when the Bucharest Convention and its implementing protocols were adopted by the six Black Sea coastal States, and a decade since the adoption of the Black Sea Biodiversity Protocol. During this time period the legal process has proven to be slow. The need for protection of biodiversity in the Black Sea was one of the priorities highlighted in the first Black Sea TDA in 1996 and continues to be so. Nonetheless, progress in implementing the Biodiversity Protocol and in creating regional MPAs has not matched the urgency identified by scientific studies and reports. The 2002 Black Sea Biodiversity Protocol is an important framework for creating regional cooperation in the protection of biodiversity in the Black Sea as it represents a unique combination of international norms taken from the 1992 CBD and regional norms taken from the UNEP Regional Seas protocols, as well as European norms. It is of the utmost importance that the Black Sea Biodiversity Protocol and the implementing SAP become legally activated and fully implemented in order to protect the disappearing and vulnerable biodiversity of this unique sea.

Endnotes

Shalva Jaoshvili, Rivers of the Black Sea, Technical Report no. 71 (EEA, 2002). Available online at http://reports.eea.europa.eu/technical_report_2002_71/en/tech71_en.pdf.
State of the Environment of the Black Sea Pressures and Trends 1996–2000 (Commission on the Protection of the Black Sea Against Pollution, Istanbul, 2002). Available online at http://www.blacksea-commission.org/_publ-SOE2002-eng.asp.
See http://www.blacksea-commission.org/_publ-SOE2002-eng.asp.
Shiganova, T.A., Mnemiopsis Leiydi Abundance in the Black Sea and its Impact on the Pelagic Community in Sensivity to Change: Black Sea, Baltic Sea and North Sea, (Emin Ozsoy Alexander Mikaelyan eds.), NATO-ASI Series, The Netherlands, Kluwer Academic Publishers, 1997, p.117 ; K. Prodanov, K. Mikhailov, G. Daskolov, C. Maxim, A. Chashchin, A. Arkhipov, V. Shlyakhov & E. Ozdamar, Environmental Management of Fish Resource in the Black Sea and their rational exploitation, (FAO 1997).
Zaitsev Yy. & Alexandrov, B.G., “Recent Man-Made Changes in the Black Sea Ecosystem” in Sensitivity to Change: Black Sea, Baltic Sea and North Sea, op.cit., pp. 25-31, 26.
The authors also draw a correlation between the Green Revolution in world agriculture and the eutrophication of the Black Sea as well as other seas in the world during the 1970s. Ibid.
M. Kotlyakov & A.F. Mandych, “Current Trends and Environmental issues of the Black Sea Regional Development”, Conservation of the Biological Diversity as a Prerequisite for Sustainable Development in the Black Sea, Proceedings of the NATO Advanced Research Workshop, Batumi, Republic of Georgia, October 5-12, 1996 (V. Kotlyakov, M. Uppenbrink and V. Metreveli, eds.) NATO-ASI Series, 1998, p. 42.
The Mneiopsis leiydi was first observed in November 1982 in the Sudak Bay of the Black Sea and then in 1986 in the north-eastern waters, see T.A. Shiganova, “ Mnemiopsis leiydi abundance in the Black Sea and its impact on the pelagic community” supra note 4 Sensitivity to Change: Black Sea, Baltic Sea and North Sea (E. Ozsoy and A. Mikaelyan (Eds.).
Y. Zaitesev and V. Mamev, Biological Diversity in the Black Sea: a Study of Change and Decline, Black Sea Environmental Series, Vol. 3 (United Nations Publications, 1997), p.65.
For detailed discussion of the using the B. ovata to control the Mneiopsis leiydi, see S. P. Volovik, Use of Beroe (sic) Ovata to control Meniopsis populations in the Caspian Sea, in FIRST INTERNATIONAL MEETING OF THE CASPIAN ENVIRONMENT PROGRAMME ON THE INVASIONS OF THE CASPIAN SEA BY COMB JELLY MNEIOPSIS-PROBLEMS, PERSPECTIVES, NEED FOR ACTION held in Baku, Azerbaijan, 24-26 April 2001. Available at http://www.caspianenvironment.org/newsite/Caspian-MnemiopsisLeidyi.asp?doc=mnem_report.htm&ttl=Report&lev3doc=mnemmenu1.htm.
Done at Bucharest 21 April 1992. In force 15 January 1994. 32 International Legal Materials 1101 (1993).
Done at Bucharest 21 April 1992. In force 15 January 1994. 32 International Legal Materials 1122 (1993).
Done at Bucharest 21 April 1992. In force 15 January 1994. 32 International Legal Materials 1127 (1993).
Done at Bucharest 21 April 1992. In force 15 January 1994. 32 International Legal Materials 1129 (1993).
Black Sea Transboundary Diagnostic Anlaysis (UNDP 1997).
Para. 60.
Para. 65.
Para. 65 (a)-(b).
Strategic Action Plan for the Environmental Protection and Rehabilitation of the Black Sea, adopted in Sofia, Bulgaria, 17 April 2009, para.1.2.
As of 21 June 2011 the Black Sea Biodiversity and Landscape Protocol enterted into effect, following the deposit of the fourth instrument of ratification by Ukraine on the 21st April, 2011. See http://www.blacksea-commission.org/_table-legal-docs.asp.
The PEBLDS is a twenty-year strategy (1996-2016) for the entire continent of Europe to implement the 1992 Biodiversity Convention in Europe by filling in gaps and harmonizing nature conservation initiatives. See on-line at http://www.peblds.org/.
Article 1(1).
Article 1(2).
Article 8 of the BS-SAP specifically provided that “the concept of sustainable development shall be applied, by virtue of which the carrying capacity of the Black Sea ecosystem is not exceeded nor the interests of future generations prejudiced”.
Convention on Biological Diversity, done in Rio de Janeiro, 5 June 1992, in force 29 December 1993 (1992) 31 International Legal Materials 818.
Article 2 (d) of the Black Sea Protocol defines “biological diversity” as the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems as defined by Article 2 of the Convention on Biological Diversity”.
Article 1.
Article 8 (a).
Article 8 (b).
See also, Biodiversity Working Group on Marine Protected Areas, Draft Policy for the Development of Marine Protected Areas in the Black Sea, (Version 1, March 2008).
Article 14.1 (a).
Article 16.1.
Annex I.
Annex II.
Annex III.
Article 8.
Article 9.
Article 12.
Article 10.
Article 5.
Article 6.
Article 7. The UNEP Regional Seas Programme for the protection of the Mediterranean on 21 January 2008 adopted a separate Protocol on Integrated Coastal Zone Management in the Mediterranean (ICZM) which entered into force on 24 March 2011. See MEPIELAN E-Bulletin, ICZM Protocol to the Barcelona Convention Enters Into Force Following Syria’s Ratification, News, Friday, 26 November 2010.
Article 11 (1)-(4).
Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ L 206, 22.7.1992, p. 7.
Paragraph 31© of the “World Summit on Sustainable Development Plan of Implementation” (4 September 2002). See http://www.iisd.ca/2002/wssd/PlanFinal.pdf.
Black Sea Transboundary Diagnostic Analysis (2008), p. 120. Available at http://81.8.63.74/Downloads/BS-TDA_may2007.pdf.
See http://www.blacksea-commission.org/main.asp.
DIRECTIVE 2008/56/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 June 2008establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive), OJ L 164, 25.6.2008, p. 19.
Objective 1.
Objective 2.
Objective 3.
Objective 2 (a) and (b).
Objective 6 (a).
See http://eunis.eea.europa.eu/documents/2356.
A total of 37 new species were added. These are: Mollusca species Mytilus galloprovincialis, Rapana venosa; Crustacea, 29 Pisces; 2 Aves (including the Cormorant Ph. Carbo) and 1 Insecta species. Information provided from the Black Sea Commission Secretariat in an unpublished report: Violeta Velikova and Ahmet Kideys “Status of the implementation of the Strategic Action Plan for the Black Sea Biodiversity and Landscape Conservation Protocol” ( 2010, Black Sea Commission Permanent Secretariat).
Ibid.
Ibid. 1. Guidelines for the Establishment of Marine; 2. Designation Dossier for the Establishment of Marine Protected Area in the Black Sea; 3. Preliminary Management Plan for the Small Phylophora Field; and (4) Marine Protected Area Karkinitsky Bay, Black Sea, Ukraine.
Ibid.

Promoting an Integrated Maritime Strategy for the Atlantic Ocean Area: The European Union Leads the Way

Tue, 21 Feb 2012 00:00:00 GMT

1. Introduction

Fostering the sustainable management of the oceans, seas and coasts and enhancing the overall development of all sea-related activities in a sustainable manner necessitate the adoption of overarching and integrated approaches to maritime governance. Within this context, the European Union has developed so far an integrated maritime policy framework aimed at promoting and implementing an all-inclusive and holistic approach to maritime affairs[1]. The cardinal objective of this maritime policy framework for the EU is to create optimal conditions for the sustainable use of the oceans, seas, and coastal regions through the interaction, coordination, and synergies between different sectoral policies (i.e., maritime transport, environment, energy, research, maritime safety and security, and fisheries), and among a wide range of maritime stakeholders[2].

At the core of the EU integrated policy approach to maritime governance lies the development of integrated regional sea-basin strategies tailored to the specific characteristics, needs and challenges of different seas-basins sharing European coastlines. Building on this fundamental premise, inspired by the already established EU maritime-basins policies[3] and in line with the strategic goals of the EU 2020 Strategy[4] and the request of the European Institutions[5], the EU adopted on 21 November 2011 the Communication on Developing a Maritime Strategy for the Atlantic Ocean Area[6]. The new EU Maritime Strategy for the Atlantic Ocean aims at laying the foundation for the sustainable growth and development of the Atlantic region, and the further implementation of an integrated approach to the management of the whole Atlantic Ocean area. In particular, the EU Atlantic Strategy places emphasis on the following thematic areas which are to be further analyzed and elaborated in the course of establishing the Strategy: (i) the main challenges and opportunities facing the Atlantic Ocean area, (ii) the core EU policy tools to be used for addressing the Atlantic challenges and (iii) the key actions needed for the effective implementation of the EU Atlantic Strategy.

2. Challenges and Opportunities

As to the most alarming challenges facing to date the Atlantic Ocean, the pollution of its fragile marine ecosystem features prominently. Addressing this challenge, requires the implementation of an integrated and coherent ecosystem-based approach to the management of human activities in the Atlantic (i.e. fisheries, offshore aquaculture and energy), based on the fundamental EU integrated maritime policy tools of maritime spatial planning and integrated coastal zone management. Recognizing especially the importance of fisheries for the economies of Atlantic Member States, the EU Atlantic Strategy encourages the Member States concerned to proceed, in line with the EU’s Common Fisheries Policy (CFP), to the adoption of a set of comprehensive policy and technical measures with a view to ensuring the long-term sustainability of sea fish stocks and preserving the vulnerable marine ecosystems of the Atlantic Ocean.

In parallel, the EU Atlantic Ocean Strategy draws its attention to the potential opportunities provided by the Atlantic Ocean towards the development of climate change mitigation measures. Specifically, strong winds, powerful waves and tides appeared in the Atlantic lay the groundwork for the exploitation and development of innovative offshore renewable energy infrastructure capable of producing clean energy and reducing Europe’s carbon footprint. Additionally, the Strategy highlights that the further strengthening and enhancement of international legal, policy and technical measures and targets regarding greenhouse gas emissions from maritime transport may contribute significantly to the decrease of the carbon footprint in the Atlantic and influence the Atlantic shipping routing. In this connection, the development of short sea shipping in the Atlantic region should be further promoted and encouraged since it provides the means for shifting efficiently freight from road to sea and reducing consequently carbon emissions.

Moreover, the Communication on the Atlantic Strategy places a high priority on the issues of exploitation of the Atlantic seabed natural resources. In an attempt to reap the benefits of sustainable exploration, exploitation and use of the Atlantic seafloor’s natural resources, the EU aims to further explore the possibility of creating those conditions which will stimulate environmentally sound investments in the Atlantic seabed marine raw materials. Within this framework, the EU should reinforce the marine research cooperation among research institutes on both sides of the Atlantic on a wide range of issues relating to the rich biodiversity of the Atlantic ocean, and facilitate the easy access to a wide range of natural and human-activity data on the oceans produced by public authorities and research institutions.

Recognizing the necessity for reinforcing the means put in place for preventing and facing threats and emergencies derived from natural disasters, accidents and criminal activities in the Atlantic Ocean area, the EU advocates the need for further improving its legislative arsenal on maritime safety and security measures. Effective monitoring of the sea and increased cooperation and coordination between national and regional authorities should be an integral part of streamlined marine disaster preparedness and response mechanism and maritime security system.

Furthermore, ensuring sustainable growth and jobs, avoiding the decline in maritime employment and protecting coastal and maritime tourism constitute another overarching objective the new EU Maritime Strategy for the Atlantic Ocean area. In this context, a high priority should be placed on working towards the development of a system which will provide the citizens of the Atlantic coast with better and wider career prospects in maritime related sectors (i.e. fisheries, shipping, tourism, shipbuilding). This will include enhancing the skills and qualification of maritime professions through continuous training and education, attracting young people to maritime careers, and improving working conditions for seafarers and fishermen. In addition, weigh should be attached to the importance of encouraging the development of regional clustering of maritime industries, and further exploiting and promoting the touristic assets of the Atlantic coast (i.e. nautical activities, natural beauty, rich biodiversity, traditional seafood).

3. EU Tools for meeting the Atlantic Strategy goals

The European Union is now in the process of elaborating, refining and developing the necessary financial, legislative and policy instruments to be used for addressing the challenges and opportunities facing today the Atlantic Ocean area.

Within the framework of the EU 2020 Strategy, the European Union is planning to create a Common Strategy Framework for structural funding through which a wide range of thematic actions and projects will be financed throughout Europe. This Common Framework will merge all the actions covered today by a number of Union funding instruments[7], and it will seek to identify and exploit synergies with other EU financial programmes for research, lifelong learning and innovation. As a result, coordination and better strategic investment of available funding will become a priority for the EU in the next financial perspective 2014-2020.

Furthermore, the Marine Strategy Framework Directive[8] constitutes one of the key legislative tools which will contribute significantly to meeting the environment related challenges identified in the Atlantic region. The Directive provides the fundamental basis for protecting and preserving the marine environment and ensuring a good environmental status of the EU’s marine waters by the year 2020. The EU Member States of the Atlantic should give priority to the effective harmonization of their legislative framework with this Directive and increase their cooperation towards the efficient monitoring and assessing of the good environmental status of their marine environment. Additionally, the reformed EU Common Fisheries Policy[9] (CFP) will provide the Member States from the Atlantic with all necessary means needed for ensuring effective and efficient sustainable fisheries management based on simplified objectives, standards and targets.

The implementation of an all-inclusive and holistic approach to maritime affairs depends to a large degree on the further evolution of the three cross-cutting policy tools of the EU integrated maritime policy: (i) a European network of a cross-border and interoperable maritime surveillance system[10], (ii) maritime spatial planning[11] and integrated coast zone management[12], and (iii) a marine data and knowledge network[13]. The EU should continue to take initiatives, actions and measures towards the further development, improvement and implementation of the above-mentioned integrated maritime policy-making tools in the Atlantic region.

The Atlantic Ocean area will also benefit from the prioritization and linkages of pilot projects, international cooperative actions with partners in the Atlantic region and research programmes which promote excellence, growth and competitiveness. In this context, the Horizon 2020 – a Common Strategy Framework for research, innovation and technological development – provides a mechanism through which the EU could enhance the cooperation between national and regional research programmes and actions with a bearing on the Atlantic Ocean area. In parallel, the EU’s external policy financial instruments, like the European Development Fund (EDF), will give the great opportunity to EU Member States of the Atlantic to foster dialogue and coordination with third countries, to build up partnership agreements and to exploit synergies and exchange best practices with international partners with a vested interest in the Atlantic region.

4. Implementation of the Atlantic Strategy

Implementing effectively and efficiently the EU Maritime Strategy for the Atlantic Ocean area requires, apart from the commitment of the EU institutions, the active engagement from a wide range of Atlantic stakeholders, including Member States, regional authorities, local and coastal communities, the industry, civil society and research institutions. In addition, the promotion and fostering of international cooperation with third countries, partners and international organization on a great deal of issues related to the Atlantic Ocean area – such as marine environment protection, maritime safety and security, illegal, unregulated and unreported fishing – will give meaning and teeth to the Atlantic Strategy.

Against this background, the European Commission is planning to set up an Action Plan for the Atlantic Strategy by the end of 2013. This Action Plan will enumerate a set of actions and measures that the European Commission proposes to take as a first step towards the implementation of the new EU Maritime Strategy for the Atlantic Ocean area. In a similar vein, the European Commission has elaborated a number of means which will assist the Atlantic stakeholders to implement the Strategy. These means include: (i) continuing cooperation, dialogue, information sharing and exchange of best practices on issues with a bearing on the Atlantic region through conferences, workshops and formal and informal meetings and discussion groups - in this connection, an Atlantic Forum involving Atlantic stakeholders is expected to start working in 2012; (ii) targeted actions and activities taken within existing agreements and institutional structures such as the OSPAR Convention, regional fisheries organizations and the International Maritime Organization (IMO); and (iii) strategic combination and linkage of the financial, policy and legislative instruments used for addressing the challenges and opportunities of the Atlantic region and achieving the goals of the Strategy.

An Epilogue

It goes without saying that the Maritime Strategy for the Atlantic Ocean area forms the foundation for the emergence and establishment of an integrated governance framework for the Atlantic. The challenges and opportunities facing today the Atlantic demonstrate the need for the adoption of an overarching, integrated, and coherent approach to sustainable management and development of the whole Atlantic region, based on the philosophy of an integrated maritime policy for the EU. However, if the priorities and objectives of this Strategy are to be translated in concrete results, it is pertinent that the EU, the Atlantic Member States and all the Atlantic stakeholders concerned pool their efforts and join forces to create those structures, mechanisms and common tools which will ensure the effective refinement and implementation of the Strategy in the years to come.

Endnotes

See European Commission Communication on an Integrated Maritime Policy for the European Union – COM(2007) 575 of 10 October 2007, and Action Plan to the Communication on an Integrated Maritime Policy for the Union – SEC(2007) 1278, Commission Progress Report on the EU's Integrated Maritime Policy – COM (2009) 540 final of 15.10.2009.
Kailis, A. "Towards the Adoption of an Integrated Approach to the Governance of the Arctic Ocean: The European Perspective", Ocean Yearbook, Vol. 24, 2010, Martinus Nijhoff Publishers, pp. 445-473.
Communication from the Commission on the European Union and the Arctic Region – COM(2008) 763 of 20.11.08, Communication on the European Union Strategy for the Baltic Sea Region – COM(2009) 248 of 10.6.2009, and Commission Communication "Towards an Integrated Maritime Policy for better governance in the Mediterranean – COM (2009) 466 of 11.09.2009.
Commission Communication on "EUROPE 2020: A strategy for smart, sustainable and inclusive growth" - COM(2010) 2020 of 3 March 2010.
Council Conclusions on Integrated Maritime Policy of 14.06.2010, European Parliament Resolution on the European Strategy for the Atlantic Region, 9.03.2011 (ref B7-0165/2011).
COM(2011) 782 of 21 November 2011. The strategy will cover the coasts, territorial and jurisdictional waters of the five EU Member States with an Atlantic coastline - France, Ireland, Portugal, Spain and the United Kingdom, including the Outermost Regions of the Axores, the Canary Islands, French Guiana, Guadeloupe, Madeira, Martinique, Saint-Barthelemy and Saint-Martin - as well as international waters reaching westward to the Americas, eastward to Africa and the Indian Ocean, southward to the Southern Ocean and northward to the Arctic Ocean.
The main EU Funding mechanisms include: the Cohesion Fund, the European Social Fund, the European Maritime and Fisheries Fund, the European Regional Development Fund and the European Agricultural Fund for Rural Development.
Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive), OJ L 164/19, 17 June 2008, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32008L0056:en:NOT.
Commission Communication on Reform of the Common Fisheries Policy – COM(2011) 417 of 13 July 2011.
Commission Communication "Towards the integration of maritime surveillance: A common information sharing environment for the EU maritime domain"- COM (2009) 538 of 15.10.2009, Commission Communication on a Draft Roadmap towards establishing the Common Information Sharing Environment for the surveillance of the EU maritime domain – COM(2010) 584 of 20 October 2010.
Commission Communication on a Roadmap for Maritime Spatial Planning: Achieving Common Principles in the EU, COM(2008)791, of 25.11.08, Commission Communication on Maritime Spatial Planning in the EU – Achievements and future Developments – COM(2010) 771 of 17 December 2010.
Commission Progress Report on the EU's Integrated Maritime Policy – COM (2009) 540 of 15.10.2009, p. 6.
Commission Communication on Marine Knowledge 2020: marine data and observation for smart and sustainable growth – COM(2010) 461 of 8 September 2010.

Green economy: Entering a ‘Green’ or a ‘Grey’ Area?

by Stavrianna Kaisari, Researcher, MSc. Kings College London — Mon, 20 Feb 2012 00:00:00 GMT

“The Earth has enough for everyone’s needs, but not for some people’s greed.”(Mahatma Gandhi)

Twenty years ago, more than 100 heads of states met in Rio de Janeiro to address urgent problems for environmental protection and socio-economic development and set an action plan for sustainable development. In a few months’ time, a great number of heads of states will once again meet in Rio to determine the next steps for environmental protection and socio-economic development. In the wake of worsening financial and environmental crises, the challenges ahead seem overwhelming.

The main target for the upcoming conference is not only to renew commitments to sustainable development and review the progress to date, but also to address new problems and emerging challenges. The core themes for Rio+20 – as defined by the United Nations[1]- are the following two: (i) Green Economy for sustainable development and poverty eradication and (ii) institutional framework for sustainable development.

The Green Economy Concept ….. An Alternative Paradigm?

It is evident that Green Economy represents a key approach to the way forward for sustainable development. It is thus interesting to assess the growing debate around Green Economy and argue whether it can be a useful way of framing policy discussions and policymaking.

The initial step is to define what Green Economy actually means. At this very beginning the first obstacle arises; despite the fact that there is an ongoing debate on Green Economy, it is still hard to clearly define the term. It seems that - similarly to sustainability - Green Economy is vague and ambiguous, carrying various meanings and overtones.

In February 2011, the United Nations Environment Programme (UNEP)[2] launched a 631-page Green Economy report, presenting the new ‘Green Economy’ paradigm. According to the report, Green Economy can be defined as an economy which results in “improved human well-being and social equity, while significantly reducing environmental risks and ecological scarcities”. Based on the report, the new model provides opportunities for employment and wealth creation and it can be a key catalyst for poverty eradication, not only in developed but developing countries as well.

But what is the exact rationale for the new development paradigm? The Green Economy agenda may vary; nonetheless, it is mainly presented as a viable way to turn crises - like the current financial, ecological and food crisis - into opportunities for growth. The growth measures are various and can range from market mechanisms (taxes, subsidies and tradable permit schemes) to technical specifications for the use of resources, green public procurement etc.

Seeing crises – from natural disasters to terror attacks and chemical emergencies - as business opportunities is compatible with the current capitalist system. As Naomi Klein explains in ‘The Shock Doctrine’[3], the “various crisis events are central to the creation of openings required for incursions of corporate capital investment”. In times of financial recession, Green Economy charts the course for a new era, creating markets for environmental services and pricing ecological resources. At this point, it is worth mentioning that these markets are not negligible; on the contrary, they are fast growing and profitable. According to Bloomberg New Energy Finance[4], the value of emission rights traded throughout the world in 2010 reached $120bn. Evidently, carbon trading has already become a ‘big business’.

The new green model that promises ‘green’ profits has many powerful supporters - the Obama administration is an indicative example. In light of Rio+20, it is promoted as the alternative development path; a way to create a win-win solution for both the economy and the environment, creating synergies among economic, environmental and social aspects of development.

…Or a ‘Green-Washing’ Approach?

Green Economy may indeed offer a new perspective on the development sector, stressing the need for a ‘greening’ trend. Nevertheless, I would argue that there are some dangerous pitfalls and traps, at least in the ways that the notion is ‘handled’ by governments and large organisations. Some very important questions can be raised about who controls and benefits from Green Economy, or - following social constructivists - who dominates the Green Economy discourse.
Historically, the development discourse has been formed under conditions of unequal power[5]; ‘development’ initiatives have been almost exclusively related to the European civilisation. Europeans created an ontology that favored their own culture, according to which they were the ‘superior’ amongst the races while native people were ‘backward’ in need for guidance and ‘progress’[6]. The stages that society passed through on its way to ‘development’ –colonialism, modernisation, industrialisation, urbanisation, technicalisation etc. - have been based on a ‘northern’[7] way of thinking, resulting in concrete practices for its benefit[8].

But is that the case for Green economy as well? Does this concept reduce or intensify inequalities between North and South?

Green economy is founded upon a neo-liberal ideology, which constructs environment as a source of inputs and a destination of outputs. Nature is constructed as a provider of valuable services — from clean water to carbon sequestration – which in many cases remain unrecognised in human societies. As Jean-Chistophe Vie stated: “it is time to recognise that nature is the largest company working for the benefit of 100 percent of humankind-and it’s doing it for free”[9].

According to the Green Economy model, if humans attribute monetary values to the natural, non-human world, the real value of ecosystem services would become visible. Based on this perspective, the creation of markets for natural resources and environmental services is being supported and promoted[10].

This construction of nature seems homogenised with the northern way of thinking[11]. The separation of Humans from Non-Humans and of Society from Nature is based on the Cartesian dichotomies that are central to the ‘northern’ mindset. Good and Evil, Mind and Body, Men and Women, Rich and Poor, Civilised and Barbarians are defined in contradiction, with one being almost diametrically opposed to the other. Moreover, in many cases one notion of each pair is often deemed superior to the other. Monetarisation and market-led approaches (such as putting price tags to ecosystem services) are also defining features of the ‘northern’ civilisation. Even if these constructions end up acquiring a reality of their own, they are ‘still human products’[12].

But then if nature and the environment are social constructs, how can they be ‘correctly valued? As Rolston[13] highlights, even if there is some magic way to value nature ‘per se’, people in other cultures might not agree with this valuing; “they too will project greenness onto trees; they might, nevertheless, value them in other ways, perhaps as natural classics, perhaps as the abode of spirits, perhaps as cellulose for technology”.

A striking example is the distinct ways in which water is valued by neoclassical economics and indigenous cultures, due to different frames of reference. Checcio and Colby[14] explain that, for the Shoshone and Bannock Indian tribes, water is not only important for irrigation, fisheries and livestock but also constitutes an integral part of religious ceremonies. Likewise, indigenous people of the Murray-Darling Basin of south-eastern Australia value water in non-monetary values; clean water is valuable for purposes as “ceremonies, religious places, dreamtime stories, burial places, habitat for clan totem beings, and sources of foods and tool”[15]. These non-monetary values do not follow the norms of accountants, brokers, bankers and ecological scientists since they are hard - if not impossible - to be categorised based on the Euro -American perspective[16]. Nevertheless, they can be still valid in terms of indigenous people’s own principles and needs[17].

The fact that the Green Economy discourse is North-dominated raises questions about who benefits from the Green Economy concept.

Focusing on the Payment of Environmental Service (PES) – a core component of the Green Economy paradigm – the idea is that such schemes would be applied in cases where the rural poor are providers of environmental payments (fishermen, farmers, forest dwellers etc). Compensating them for actions that protect ecosystems would serve both poverty eradication and conservation efforts. Nevertheless, critics fear that a market-based tool like PES does not always favor distribution of benefits towards landless individuals and the ‘poorest of the poor’[18].

Lee and Mahanty[19] present a set of challenges regarding PES- some of which are presented here. First of all, a key question is whether poor people can act as providers of ecosystems services. In some cases, poor people are excluded from participation in PES programs. For instance, hydrologically sensitive areas, even if populated by poor people, may have few downstream users and therefore low potential to be included in PES schemes[20]. Also, transaction costs might prevent poor people from participating in PES schemes. As Picard et al.[21] highlight - from a transaction cost perspective – it is much more efficient to target to major industrial actors or large-holders, than smallholders. Likewise, some PES programs involve important investment costs, unaffordable for poor populations. Pagiola et al.[22] describe how farmers in Nicaragua, wanting to participate in a PES scheme, might have to sacrifice about 70% of their current net income. Finally, even if there are good market opportunities for the poor, there may be barriers because of low awareness and technical knowledge[23].

Evidently, for the sake of efficiency, it is likely that some of the program benefits may go to large land holders, private companies or intermediates, instead of poor rural populations. This might also mean that a private company will end up deciding for the use of natural resources, excluding the local population from its territory rights[24]. In this way indigenous communities might lose control of their natural resource, livelihoods and cultural heritage[25]. The Indigenous Nationalities of the Ecuadorian Amazonian express this exact fear, with the following declaration: “we reject the negotiations on our forest because they try to take away our freedom to manage our resources”[26].

ETC group[27] - or Action Group on Erosion, Technology and Concentration – in its 60-page report also warns about convergence of private power over natural and biological resources, stressing the dangers from the uncontrolled release of privately held technologies into communities that are not prepared for the associated impacts. The report suggests that large corporations use the idea of Green Economy as a pretext, forming networks in order to exploit biomass and gain control of local natural resources. The report emphasises the risk of new green oligopolies, using the example of DuPont – one of the leading companies that control the global seed, pesticide and agricultural biotechnology market - which is now activating in the energy and food market, as well as in plant-based materials. Other powerful players are Monsanto, Syngenta, Dow, BASF, Unilever and the U.S. government, all focusing their investments on converting plant biomass into profitable products.

Apart from serious equity concerns, there are also reasons to doubt the effectiveness of Green Economy techniques as a conservation strategy, which is after all the main target of the new green paradigm. First of all, and as McAfee[28] explains, knowledge of ecosystem functions is still very limited; hence, it is very hard to estimate how much carbon is stored or released, or how much water is conserved or consumed as the result of PES schemes.

In my opinion however- and in that of many others – a very worrying aspect of the Green Economy paradigm is that it constructs different environments in different locations as equitable and substitutable. For instance, carbon trading is based on the assumption that environmental offsets in different locations are equivalent. Therefore, carbon production in one location can offset against its storage in a tropical forest at a very distant location. But how can industrially emitted CO2 be equivalent to carbon captured and stored in forests for millennia?[29] Even more absurd offsets may be promoted as ‘environmental solutions’. As Sullivan reveals, the Optimum Population Trust (Opt) organisation suggests that carbon emissions by consumers in the ‘northern’ world can be offset by their paying for reduced fertility through contraception in the South.[30] Presenting human life as equivalent to carbon emissions is at least debatable.

Conclusions

As we move towards the Rio+20 conferences, in times of financial crisis and high uncertainty, the concept of the Green Economy has emerged into the global policy debate as an alternative development path. Although the term has no clear definition, the main idea is that it will enhance current economic growth and bring new opportunities for green investment, without exposing future generations to environmental risks. This paradigm is also believed to target against poverty, rewarding poor rural populations for the environmental services they provide.

Despite the ‘green’ enthusiasm from many states and corporations, there are also concerns, raised by several developing countries and non-governmental organisations (NGOs). Bolivia is one of the countries that rejected the green economy concept, as formulated in the draft document to be adopted in June, in Rion+20. The head of the Bolivian delegation Rene Ollegano stated that “the role of the forest is not for carbon stocks” [31]; thus expressing Bolivia’s firm stand against the Green Economy mechanisms. Other developing countries have also expressed their objections regarding the new paradigm, with China noticing that a UN definition of the Green Economy would not take into consideration the problems faced by developing countries[32] and India emphasising the need for national authorities to be able to take their own decisions[33].

Various NGOs have also rejected the Green Economy model. For instance, the participants of the workshop on REDD and Biocultural Protocols - organised by the Indigenous Peoples Biocultural Climate Change Assessment (IPCCA) from Ecuador, Panama, India, Nicaragua, Peru and Samoa - opposed to the Green Economy concept, stressing that “life cannot be negotiated or sold on a stock market”[34]. Also, many NGOs stress the need for transparency and public consultation in the relevant decision making process. Indicative is the document “Occupy Rio - the Road to Rio+20”,prepared by various organisations (Alliance for Democracy, Council of Canadians, Earth Law Center, Food and Water Watch, Institute for Agriculture and Trade policy and International Indian Treaty Council) that calls for immediate action against the “false” green economy[35].

It is evident that, based on the development experience of the last decades, there are emerging concerns that a “business as usual” model will reinforce North-South inequities instead of resolving them. The main question is whether the current economic model - that has created the environmental crisis - can solve the problems it created. Although the Green Economy model is a new tool and, therefore, its potentials to “re-launch” growth are not yet fully explored, it should not escape our attention the fact that our global system is dominated by unequal power relations and profit driven. Even if the Green Economy model would have been feasible in an ideal – probably utopian - world of equity and democracy, is that the world we are living in?

Endnotes

United Nations Environment Programme (UNEP) Towards a Green Economy: Pathways to Sustainable Development and Poverty Eradicatio, 2011. [Online] Available at: http://www.unep.org/greeneconomy/Portals/88/documents/ger/ger_final_dec_2011/ [Accessed 06 February 2012].
United Nations (UN) Rio+20. United Nations Conference on Sustainable Development. Objectives and Themes, 2012. [Online] Available at: http://www.uncsd2012.org/rio20/ [Accessed 05 February 2012].
Naomi Klein cited by Sullivan, S. “Green capitalism, and the cultural poverty of constructing nature as service provider” 3 Radical Anthropology (2009), p.18.
Bloomberg New Energy Finance. Carbon Markets, 2012 [Online] Available at: http://bnef.com/markets/carbon/ [Accessed 05 February 2012].
Escobar, A., Encountering Development: the making and unmaking of the third world. Chichester, West Succex: Princeton University Press,1995, pp. 3-20.
McMichael, P., Development and social change: a global perspective. 3rd Edition: Sage Publications, 2004, pp.3.
Even though the terms “northerners”’ and “westerners” carry a long history of colonialism and imperialism their use is almost inevitable, due to lack of alternative definitions.
Escobar, A. op.cit, pp. 3-20.
Jean-Chistophe Vie (2009) cited by Sullivan, S., op. cit., p.19.
Sullivan, S., op.cit., p. 18-27.
Ibid.
Berger and Luckmann cited by Calhoun, G., Gerteis, J., Moody, J., Pfaff, S. and Virk, E. Contemporary Sociological Theory. Blackwell Publishing Ltd., 2002, p.29.
Rolston, H. Nature For Real: Is Nature A Social Construct? In: T.D.J Chappell ed. The Philosophy of the Environment. Edinburgh: University of Edinburgh Press, 1997, p41.
Checcio and Colby (1993) cited by Steenstra, A., “A Case Study of Accommodating Indigenous Cultural Values in Water Resource Management: Privatization and Co-Management”, XXI (2) Indigenous Policy Journal (2009), p. 5.
Steenstra, A. op. cit., p. 9.
Burton (1991) cited by Steenstra, A. op.cit., p.5.
Thrupp, L.A. “Legitimising Local Knowledge: From Displacement to Empowerment for Third World People”, 6 (3) Agriculture and Human Values (1989), p. 13-24.
Lee, E and Mahanty, S., Payments for Environmental Services and Poverty Reduction: Risks and Opportunities. Issues Paper, 2009, p.11 [Online] Available at: http://www.rightsandresources.org/documents/files/doc_1125.pdf [Accessed 05 February 2012].
Ibid., p.8-22.
Pagiola et al. (2004) cited by Lee, E and Mahanty, S. op.cit., p.9.
Picard, R., Bille, R. and Sembres, T. Upscaling Payments for Environmental Services (PES): Critical Issues. 3 (3) Tropical Conservation Science, 2010, p. 249-261.
Pagiola et al. (2004) cited by Lee, E and Mahanty, S op.cit., p.12.
Landell-Mills and Porras (2002) cited by Lee, E and Mahanty, S. op.cit., p12.
Ribeiro, S. The true colors of green economy. America Latina em Movimento. 2011. [Online] Available at: http://alainet.org/active/51658&lang=pt [Accessed 05 February 2012].
Naido, A. Fighting for a Real Green Economy. Blue Planet Project Council of Canadians. 2012. [Online] Available at: http://canadians.org/blog/?p=13019 [Accessed 05 February 2012].
Sullivan, S., op.cit., p. 25.
ETC Group Who will control the Green Economy, 2011 [Online] Available at: http://www.etcgroup.org/upload/publication/pdf_file/ETC_wwctge_14dec2011_4web.pdf [Accessed 05 February 2012].
McAfee, K (2011) Green Economy and Sustainable Development: Bringing Back the Social Dimension. IN: UNRISD conference. 10–11 October 2011Geneva. p.9.
Sullivan, S., op.cit., p. 18-27.
Sullivan, S. The environmentality of ‘Earth Incorporated’: on contemporary primitive accumulation and the financialisation of environmental conservation, 2010. In: An Environmental History of Neoliberalism, Lund University, 6-8 May 2010, p7.
The Mercury Forests are not for carbon stocks, 2012 [Online] Available at: http://www.iol.co.za/mercury/forests-are-not-for-carbon-stocks-1.1191232. [Accessed 06 February 2012].
Keating, D (2012) Push for sustainability indicators at Rio talks. European Voice, 2012 [Online] Available at: http://www.europeanvoice.com/article/imported/push-for-sustainability-indicators-at-rio-talks/73428.aspx [Accessed 05 February 2012].
Ling, C.Y. and Iyer, S. Developing Countries Raise Concerns On “Green Economy” as Rio+20 Begins. South-North Development Monitor (SUNS). 2010.
See the Declaration of members of the Indigenous People’s Biocultural Climate Change Assessment Initiative (IPCCA) [Online] Available at: http://thewrongkindofgreen.wordpress.com/2011/11/26/indigenous-groups-reject-redd-a-false-solution-that-breads-a-new-form-of-climate-racism/ [Accessed 05 February 2012].
See the document “Occupy Rio- the Road to Rio+20”. [Online] Available at: http://www.iatp.org/files/The%20Road%20to%20Rio%20+20.pdf. [Accessed 05 February 2012].

Engagement for Effective Environmental Governance

Thu, 22 Sep 2011 00:00:00 GMT

1. Introduction

Countries around the world recognize the importance of global and regional environmental governance and express their willingness to cooperate and support common goals.[1] However it is increasingly apparent that most current governance regimes have not proven effective. The issue is therefore what steps could be taken to transform global or regional agreements into effective measures for implementation at the national level. Commitment will remain as good intentions without results if a country's governmental system does not translate them into operational processes which affect environmental performance. Consequently a key issue, is what brings a country's government system to reform its environmental performance?

It is frequently proposed that transformation is achieved through top down or bottom up processes, or a combination of both. This paper proposes that transformation can often best be achieved through the middle rung of the ladder, neither top nor bottom, but through a horizontal shift generated by the epistemic community of professional environmentalists inside government.[2]

2. Ineffectiveness of Multilateral Environmental Agreements

Criticism of the lack of willingness of countries to take adequate steps for the effective implementation of environmental agreements is a main focus of global attention approaching RIO+20.[3] If we return for a moment to the Rio Summit of 1992,[4] it was clearly understood that concerned countries could not cope alone with transboundary and global issues and hence international cooperation was essential. It was also understood that the protection of environmental resources would not be achieved by the efforts of devoted environmentalists, however enthusiastic they may be, without mainstreaming environmental criteria into economic and social systems of governance.

However, despite intensive efforts by the environmental community around the world and sporadic successes through which the environmental agenda even managed to make its way onto the political agenda, such a transformation has largely been limited to incremental improvement with limited levels of effectiveness. Even the governance of climate change regimes, which have received enormous levels of professional and media attention, has not created an effective mechanism for transformation and it is highly unlikely that declared commitments will be met and even if they are, they are far from what is really needed to stay within safe planetary boundaries.[5]

The equally critical issue of protection of ecological systems and biological diversity[6] remains neglected and peripheral to the political agenda, despite the high level of public awareness and appreciation of their value. In light of the gaps between these agreements and their effective implementation by member countries, the key question is what brings a country to make fundamental (as opposed to incremental and minimal) changes to its governance system with effective results?

It is difficult to determine where effective results are actually being achieved. Uneven monitoring and reporting provides a biased overview, where those who report accurately are those who can be identified as non-compliers whereas the serious non-compliers do not necessarily report at all or do not have accurate monitoring systems to provide the required data.

3. Engagement through Involvement

The availability of information and generation of awareness in civil society does not necessarily translate into governmental reform unless there is a powerful platform for engagement. This paper proposes that the crucial commitment of national governments - still the key players in environmental governance – can be achieved through engaging a high level transnational professional community of experts capable of and committed to bringing environmental commitments to fulfillment within the economic and social systems of the individual country. Engagement in the process generates responsibility of the members to the group beyond their individual commitment, and group affiliation provides support to promote their policies and instruments in light of opposition or disinterest at home. The imposition of policies and instruments from outside, without engagement in the process of their formulation, is likely to result in a limited level of implementation. Where economic or social benefit can be perceived, there is a strong incentive for significant change in environmental governance.

The following examples illustrate the importance of engaging epistemic communities as a mechanism for committing governments to environmental responsibility and accountability.

4. Engagement in a Regional Group – The Mediterranean Action Plan

Although much criticism has been raised about the effectiveness of the Mediterranean Action Plan in achieving its basic goal of protecting the Mediterranean Sea,[7] it has had very significant impacts on the environmental governance of the Contracting Parties. Its activities, including protocols, in-depth studies of specific issues, expert discussions and reviews of practice, usually involving country experts in formulating policies and tools, have had very significant spin-off effects, which are not necessarily identified in the criteria used for evaluating effectiveness.

MAP has suffered over the years from a weak monitoring and reporting system without benchmarking the countries sharing the Mediterranean. As has been realized in corporate environmental management, a mandatory system of self-reporting is an essential element for effective implementation, possibly even more important than strengthening legal compliance mechanisms, which may not necessarily be operated in practice by imposing sanctions on non-complying partners who do not supply accurate reporting. Israel is perhaps a useful case example for evaluating the effectiveness of engagement since it is not a member of a committed regional group such as the EU but is willing and interested in participating in global and regional environmental responsibilities and is affected by the deterioration of environmental resources. While the Mediterranean Action Plan had direct impacts, such as the adoption of legislation concerning the prevention of marine pollution, active engagement in the diverse professional groups within the Action Plan generated far more than legislation and its enforcement. Major steps forward were generated by discussions on practical guidelines relevant to implementation at the national level, the exchange of practical experience between representatives of the parties and the dissemination of best practices. Israel's intensive involvement in coastal zone management with the PAP Priority Actions Program was undoubtedly a factor in its early adoption of legislation for Integrated Coastal Zone Management (ICZM) in 2004, well before the MAP protocol,[8] and as a result of learning from the experiences of Spain and France in coastal legislation.

The MAP Country Action Management Programs (CAMP) provided additional opportunities for innovation and experimentation with examples of good practice elsewhere. Israel used the opportunity of its CAMP[9] in the mid 90's to introduce Sustainable Development into the national economic and social agenda, with the guidance of experts from The Netherlands, who introduced their good practice of discussions within sectorial target groups.

5. Engagement in an Interest Group – OECD

Effective engagement may be achieved not only by complying with the legal obligations of a multilateral agreement, but by a country taking on the obligations of an interest group to which it wishes to belong. Israel requested to join the OECD – it had no obligation to do so, but its economic leaders promoted the accession for the benefit of its economic growth, which has become very dependent on international trade.

The OECD is basically an economic collaborative community of countries; however, it has gone far beyond the economic agenda and has been playing a very active and leading role in global environmental policy and performance. Its interest in environmental issues is not altruistic, but stems from a desire to prevent unfair competition in international trade by countries exploiting environmental depletion and deterioration in order to gain economic advantages in the global market. It therefore emphasizes that its members commit themselves to a fair playing field in international markets and to like-minded international environmental and social commitments. The organization has over the years created an 'acquis'[10] of instruments, decisions, recommendations and declarations but does not on the whole set specific standards or issue directives, such as the European Commission. Nor does it operate an enforcement mechanism. Its approach is compliance assurance, through benchmarking the performance of its members, highlighting where countries are failing to meet their expectations and by conducting peer reviews of countries to assist in showing how performance could and should be improved.

The accession process requires a country to clearly demonstrate that it is like-minded and is taking the relevant steps to be in line with the commonly accepted commitments of the group. Country expert participation in professional discussions preceding and during the accession process created a learning process within an epistemic community which later enabled quicker and easier adoption of its instruments. Cross country exchanges of experience at its meetings concerning similar problems provide a brief but extremely helpful way of learning from relevant experience elsewhere and enables an accessing country to feel a part of the professional group when presenting its own experience. Strong self monitoring, reporting and benchmarking systems are an essential part of the process, indicating clearly when countries are not in line with common targets. Periodic performance reviews[11] are a compliance assurance process and clearly expose non-compliance without resorting to enforcement.

The accession process for Israel involved commitment to major reforms in its environmental governance, including the initiation of a mandatory self reporting system on emissions and wastes (PRTR) and the establishment of a mechanism for chemicals management. Although accession was promoted by the economic community in Israel, the environmental community is a main beneficiary. Transformation of environmental governance was accepted by the economic community as an obligation for Israel's acceptance to the community to which it wished to belong.[12]

6. Information Without Engagement – EU-ENP

The Environmental Neighborhood Policy (ENP) is an interesting case of non-engagement. It was adopted by the European Community as a means of bringing neighboring countries in line with the European 'acquis' without offering them membership in the group. There was therefore no intention of engagement or accession or any formal or official status. It was promoted by the diplomatic community as beneficial to international relations between the parties and was operated through the Ministry of Foreign Affairs. It focused on government to government and did not relate to the economic community of the country. Participants were invited as observers at some events but were not invited to join and become part of the Members' epistemic community.

It constituted an important program of training and capacity building through the provision of expertise and information (TAIEX, Twinning and professional visits). However, it did not include benchmarking – in fact the European Environment Agency EEA was very reluctant to take on benchmarking responsibilities beyond that for accession countries to the EU. At a later stage, the Agency did accept the role of improving data analysis and benchmarking in the Mediterranean, in cooperation with MAP.[13]

Israel's experience in the context of the ENP has been limited. The Policy and its Action Plan contributed to professional knowledge in the specific areas requested by the Parties, including the provision of expert knowledge on environmental risks as financial risks, responsible investment and integrated permitting (IPPC), but did not have a major impact on environmental governance.

The ENP was a one-way system, from Europe to the individual countries included in the policy; it did not include the involvement of neighboring countries in formulating policies for all the parties and did not encourage neighborhood countries to exchange their experiences or bring their expertise and knowledge to the benefit of the European countries. It was a very good form of improving access to useful sources of information but there was no commitment, no monitoring or evaluation and no review of performance.

This is in contrast to the effectiveness of the EU directive on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) which has had a profound effect on the environmental performance of Israeli chemical industries involved in the supply chain to European markets.

Conclusions

The three examples above of transgovernmentalism for management of environmental issues which transcend national boundaries illustrate the range of options and their implications for participating countries. This paper proposes that the transfer of information is insufficient for achieving a significant change of national environmental policy. However, it also proposes that compliance and enforcement are not necessarily the essential elements of the process. It rather emphasizes the value of benchmarking, of engaging the environmental professional epistemic community across the participating countries and the value of creating and strengthening the links between the environmental community within a country and the leaders of its economic community.

*****

The author would like to thank Adv. Rahell Adam for her most helpful review and comments.

Endnotes

See Perrez, F. X. (2001) Cooperative Sovereignty – from Independence to Interdependence in the Structure of International Environmental Law, Kluwer Law International.
Defined as "transnational networks of knowledge-based communities that are both apolitically empowered through their claims to exercise authoritative knowledge and motivated by shared causal and principled beliefs", Peter Haas, "Do Regimes Matter: Epistemic Communities and Mediterranean Pollution Control", 43 INTERNATIONAL ORGANIZATION (Summer 1989), 377-403.
UN Conference on Sustainable Development (Rio+20) Rio de Janeiro 2012.
UN Conference on Environment and Development (UNCED) Rio de Janeiro 1992.
Rockstrom et al., "Planetary Boundaries: Exploring the Safe Operating Space for Humanity ", 14(2) Ecology and Society (2009).
Millenium Ecosystem Assessment 2005.
Haas, P. (1990) Saving the Mediterranean – The Politics of International Environmental Cooperation, Columbia Press NY.
ICZM MAP Protocol came into force in March 2011.
Gabbay, S., 2000 Israel CAMP Final Integrated Report MAP-PAP.
Acquis is the accumulated legislation which candidate countries must adopt to become members of the European Union. The term is also used by the OECD relating to accession countries.
The OECD Environmental Performance Review of Israel is currently in preparation and due to be issued by the end of 2011.
Israel's position with regard to OECD Council Acts and other relevant instruments was submitted as a Memorandum in March 2010 prior to its accedence to the OECD Convention.
EEA-MAP Joint Work Plan 2006.

A Regime in Peril: Update on Efforts to Negotiate the Next Phase of the UN Climate Change Regime

Wed, 21 Sep 2011 00:00:00 GMT

1. Introduction

2011 is shaping up as yet another critical year for the climate change regime. Two previous deadlines to complete the design of the post 2012 climate change regime, in Copenhagen in 2009 and in Cancun in 2010, failed to produce a comprehensive agreement. The conference of the parties in Durban, South Africa this December is the third attempt to conclude the design of the future regime.

Negotiations on the post 2012 climate change regime under the United Nations Framework Convention on Climate Change (UNFCCC) [1] have been underway informally for almost a decade, starting well before the current regime under the Kyoto Protocol ever came into force in 2005.[2] Negotiations started slowly and informally, but by 2007, Parties agreed that urgent action was needed if a new agreement was to be in place by the time the first commitment period under the Kyoto Protocol was due to expire at the end of 2012. This sense of urgency lead to the Bali Action Plan in 2007, designed to lead to a new treaty by 2009.

The driving force behind the Bali Action Plan, which charted the course for a new negotiating process, was the desire of the parties to avoid a gap between the first and future commitment periods and the impact of uncertainty over the future of the climate change regime on the carbon market. The focus in Bali was on launching formal negotiations that would include all UNFCCC parties and would lead to an agreement that can be implemented by the end of 2012.

In order to facilitate the negotiation process, parties worked to provide as much substantive direction for the negotiation process as possible. In particular, many parties sought to include the medium-and long-term targets offered by the IPCC in the Fourth Assessment Report in the negotiating mandate.[3] Other key issues included the role of major developing countries and the U.S. in the emission reduction effort,[4] the future of the carbon market,[5] the issue of bunker fuels from international marine and air transport,[6] adaptation, avoided deforestation,[7] and the roles of funding and technologies in the new regime.[8]

2. Key Elements of the Bali Action Plan

The UNFCCC dialogue and the Kyoto Protocol working group on new Annex I targets initiated in Montreal continue to influence the negotiations of the post-2012 regime. Due to the absence of the United States from the Kyoto process and the unwillingness of developing countries to negotiate their mitigation actions within the Kyoto context, negotiations continue at the time of writing to proceed on separate tracks. The Kyoto track is focussed on Annex I mitigation commitments and related issues. The UNFCCC track is being carried out by an Ad Hoc Working Group on Long-Term Cooperative Action, which is preoccupied with engaging the U.S. and non-Annex I countries in climate change mitigation, but in the process is also dealing with adaptation, technology and finance. The following section provides a brief overview of each of these tracks.

3. The Kyoto Ad Hoc Working Group

The Ad Hoc Working Group under the Kyoto Protocol was a continuation of a committee initially established in 2005 in Montreal in accordance with Article 3.9. As a Kyoto process, it excludes the United States. Its focus is on post-2012 mitigation commitments for developed countries. In Bali, parties to this process accepted the conclusion of the IPCC’s Fourth Assessment Report that emission reductions for developed countries will have to be in the range of 25% to 40% by 2020 in order for the objective of the UNFCCC — to prevent dangerous interference with the climate system — to remain achievable. This does not mean that future commitments will be in this range, but means that any deviation from this range will be seen by many as a failure of the process. In Copenhagen and Cancun, some parties started to distance themselves from this conclusion of the IPCC, leaving the collective 2020 mitigation target for developed countries as uncertain as ever. Given the agreement to the two degree target in the Copenhagen Accord and in the Cancun Agreements, Annex I countries may yet agree on new absolute emission reduction limits relative to a 1990 baseline in the range of 25% to 40% collectively, but this if far from clear.

The mandate of the Ad Hoc Working Group has remained essentially unchanged from its origins in Montreal and Bali — to negotiate mitigation, adaptation and finance commitments for post¬2012. The focus in Bali was on planning the activities and meetings of the ad hoc working group for the next two years, leading to a decision on future emission reduction commitments by developed country parties to the Kyoto Protocol at COP 15 in 2009 in Copenhagen. With the failure of the parties to reach consensus in Copenhagen, the mandate was extended to COP 16 in Cancun. It has since been extended to COP 17 in Durban.

Critical to the success of the work of the Ad hoc Working Group continues to be that adequate contributions to the mitigation effort from the U.S. and developing countries are negotiated in parallel. A key point of disagreement is whether developed country mitigation remains under Kyoto or are treated the same as those from the US and developing countries. In Cancun, Japan, Russia and Canada were most vocal in their opposition to a second commitment period under the Kyoto Protocol without the US and key developing countries coming under Kyoto. A number of developed and developing Parties continue to be reluctant to make significant concessions until there is progress on the contribution from the United States.

Other key outstanding issues include the length of the next commitment period, and the basis on which the emission reduction targets of individual countries will be determined. The future of surplus credits from the first commitment period and other conditions under which Annex I parties to the Kyoto Protocol might be willing to commit to emission reductions in the range of 25% to 40% remain unresolved.

A long list of more detailed issues still needs to be addressed by the Kyoto Protocol Ad hoc Working Group. Top on the list is the future role of the three flexibility mechanisms — the Clean Development Mechanism (“CDM”), Emissions Trading and Joint Implementation. This will involve consideration of a long list of proposed changes to the rules under which the mechanisms operate, such as opening up the CDM to carbon capture and storage or nuclear projects, considering sectoral CDM projects, improving the sustainable development benefits of the Clean Development Mechanism, and opening up Joint Implementation as a possible bridge for some non-Annex I parties.

4. The Ad Hoc Working Group on Long Term Cooperative Action

The Ad Hoc Working Group on Long Term Cooperative Action (“LCA”) represents the formalization and continuation of the UNFCCC dialogue initiated in Montreal in 2005. The Convention dialogue took the form of four separate meetings in 2006 and 2007. In Bali, this process was turned into a formal negotiating process to be run and completed in parallel with the Kyoto Ad Hoc Working Group process. All UNFCCC parties are involved in the LCA process. This means that this is the forum for negotiating the involvement of non-Kyoto parties (the United States) in the post-2012 regime. It has also become the default process for issues excluded from the Kyoto Ad Hoc Working Group process for one reason or another. Most notably perhaps, the LCA process has become the forum for negotiating the engagement of developing countries in climate change mitigation action.

The mandate of the Ad Hoc Working Group on LCA is to launch a comprehensive process to agree on long-term cooperative action that will enable the full, effective implementation of the UNFCCC. Parties agreed to be guided by the IPCC’s Fourth Assessment Report, but without a direct link to any of the emission reduction scenarios. The process takes the form of an Ad Hoc Working Group that is to meet at least four times a year and conclude its work in time for COP 15 in Copenhagen in 2009. As with the Kyoto Protocol Ad Hoc Working Group, the mandate of the LCA AWG has now been extended to COP 17 in Durban.

The Bali Action Plan for the LCA includes a non-exhaustive list of issues to be considered under each of the four “pillars” — mitigation, adaptation, finance and technology. Most notably, the Bali Action Plan refers to measurable, reportable and verifiable mitigation actions and commitments by developed countries. The clause also calls for mitigation efforts of developed countries to be comparable. Since the mitigation actions of most developed states are being considered by the Kyoto Ad Hoc Working group, this provision in the Action Plan is generally considered the “U.S. clause”. The Plan also refers to measurable, reportable and verifiable mitigation actions by developing countries, supported by measurable, reportable and verifiable assistance from developed countries.

LCA issues to be finalized for the post-2012 regime include many aspects of mitigation in developed and developing countries, sources of finance for adaptation, mitigation, technology and capacity building, bunker fuels from aviation and marine transport, and the role of sectoral approaches for Annex I countries.[9] The LCA AWG’s mandate has been extended until COP 17 in Durban with the aim of developing a comprehensive agreement on shared vision, adaptation, mitigation, finance, technology, and capacity building. The work of the LCA AWG will continue in parallel with the KP AWG.

5. The Copenhagen Accord

Other than the continuation of the two Ad Hoc Working Groups (“AWGs”) past their initial two-year mandates, the main outcome from COP 15 was the negotiation of the Copenhagen Accord by major economies in the developed and developing world. Although it has no formal standing within the UNFCCC, and was opposed by a number of developing countries, it does have the support of most parties. The following are some of the key elements of the Copenhagen Accord:

The Accord endorses the continuation of the two AWGs to conclude a more comprehensive agreement at COP 16 on the range of issues currently before the two AWGs.
It endorses the goal of limiting global average temperature increases to below 2 degrees Celsius, and the need to make deep cuts in emissions to achieve this goal.
Annex I Parties were asked to submit by January 31, 2010, and subsequently implement, quantified economy-wide emission targets by 2020. Efforts to implement these targets are to be subject to international monitoring, reporting and verification (“MRV”). The agreement does not include a collective target for Annex I Parties. The United States and Canada have each submitted targets of 17% below 2005 levels by 2020. Other developed countries have submitted more ambitious targets, however, collectively, the targets are generally recognized to be inadequate.
Non-Annex I Parties were similarly asked to submit a list of mitigation actions they intend to implement (supported and unsupported Nationally Appropriate Mitigation Actions). Any involvement of LDCs and Small Island Developing States is strictly voluntary. The implementation of these actions is to be communicated through National Communications every two years. The level and nature of the monitoring, reporting and review will depend on whether the actions are supported by Annex I Parties. For unsupported actions, the focus will be on domestic MRV, but with some international transparency. For supported actions, there will be international MRV. As with Annex I parties, the agreement does not include a collective target for Non-Annex I parties. Many developing countries have made submissions under this clause of the agreement. While also inadequate, the developing country commitments are generally accepted to be closer to an equitable share of the burden as set out by the IPCC’s fourth assessment report.
The Accord includes a collective commitment from developed countries to contribute $30 billion (U.S.) from 2010 to 2012 for adaptation and mitigation in developing countries, and to increase the funding to $100 billion (U.S.) per year by 2020 from a variety of unspecified sources.
The Accord provides for a review by 2015 to assess the implementation of the Accord and its adequacy, including in particular the need to consider the 1.5 degree global average temperature limit based on the available science at that time.[10]

6. The Cancun Agreements

In contrast to the high expectations in Copenhagen in 2009, it was clear months before the meetings in Cancun that there would be no final comprehensive agreement in 2010. Rather, parties were aiming to resolve enough key issues to enable a comprehensive agreement to be reached in 2011 in Durban, South Africa. The role of Cancun was to set the direction for the negotiations both in terms of process and substance. The Copenhagen Accord loomed large in Cancun. Would the substance of the Accord be bought back into the UN process, or would the Accord signal a new process outside the UNFCCC? On substance, would the agreements reached by a few selected parties in Copenhagen be accepted by all UNFCCC parties, or would the UN process take a different path?

The failed “friends of the chair” process that prevented the adoption of the Copenhagen Accord at COP 16 clearly influenced the negotiations in Cancun. The Mexican presidency worked hard to re-establish trust in the UNFCCC negotiation process by ensuring that all parties were included in the process up to the very end. These efforts clearly paid off, even though Bolivia in the end stood alone in objecting to the agreements reached as an inadequate response to the climate change challenge. One of the reasons for Bolivia’s objection was that the Accord was very influential on the substance of the Cancun Agreements. In fact, most of the key provisions of the Copenhagen Accord found their way into the Cancun Agreements.

The substantive outcome from Cancun included agreement on a range of issues, including financing, forests, technology transfer and adaptation. The various agreements reached represent real progress, in fact more than had been thought possible by many during the slow-paced talks of the past fortnight. Still, the parties remain divided on most fundamental issues, including the legal form of the agreement, compliance, the overall mitigation targets, and individual contributions to those targets.

The substantive outcomes from Cancun include the following:

The emissions reduction pledges initially filed under the Copenhagen Accord were brought into the UN climate convention framework as minimum commitments; this means emissions mitigation actions from major emitters are now enshrined under the UN process.
The Green Climate Fund, initially to be managed by the World Bank, has been established, and should be operationalized in 2011. The Copenhagen promise of a $100 billion per year in financing from developed to developing countries for mitigation and adaptation has been brought under the UN process.
The Cancun Agreements include more detailed agreement on monitoring, reporting and verifying (MRV) emissions reductions and assistance.
An agreement on REDD, an anti-deforestation mechanism to pay developing countries to protect their forests.
A new technology transfer mechanism, to deploy renewable energy and other clean technologies to the developing world.
Acceptance of carbon capture and storage (CCS) as a potentially eligible activity for carbon crediting under the CDM, subject to resolving outstanding environmental and legal issues.
The Cancun Adaptation Framework was adopted. It is intended to assess the climate change threat to poor and vulnerable countries.

7. Expectations for Durban and Beyond

At the time of writing, it is unclear whether the Conference of the Parties in Durban, South Africa can deliver a comprehensive agreement on the substance of the post 2012 regime or on its legal form.[11] Progress is being made on certain elements, such as institutions for technology and finance, amendments to the CDM, and adaptation. At the same time, the fundamental deadlock continues. Developed countries such as the US, Canada, Australia, Japan and Russia continue to resist commitments that are in line with science and equity, making it easy for key developing countries such as China to resist making commitments that would make implementation of commitments more palatable globally.

Leaving aside the timing of the agreement on the future regime, it is equally difficult to predict the substantive outcome of the current negotiations respecting the post-2012 regime. It appears increasingly unlikely that the regime will include firm medium-term targets for developed countries in the range of 20% to 40% below 1990 levels by 2020. It is likely that it will include long-term global aspirational targets in excess of 50% below 1990 levels. Whether such targets will be translated into firm emission limits for Annex I countries, whether there will be a change in the composition of Annex I and non-Annex I countries, and what other changes will be made to the regime is difficult to predict. The following are likely to be among the other key issues to be addressed in the future regime:

whether the new regime will be in the form of a new protocol, an amendment to the Kyoto Protocol, an implementation agreement, a COP decision, or some combination of these options;
whether the regime will continue with firm caps for developed countries;
how emission reductions will be allocated among all parties;
whether and how to incorporate sectoral approaches into the regime, particularly with respect to agriculture, aviation and marine transport;
whether other alternatives or complements to the current approach will be incorporate into the regime;
whether the list of countries with firm caps will be expanded;
whether to open up Joint Implementation to some developing countries;
how to implement the commitment to measurable, reportable and verifiable mitigation actions by developing countries;
how to implement the commitment by developed countries to measurable, reportable and verifiable assistance on mitigation;
how to bring the United States into the regime in a manner that enables it to participate in the regime and provides the assurance needed by other parties to move ahead with their own commitments;
how to implement the Technology Institutions developed in Copenhagen and Cancun to facilitate better access to key technologies in developing countries;
how to implement the finance commitments and institutions to finance adaptation and mitigation in developing countries;
how to update the CDM to make it a more effective tool for the dual purpose of emission reduction and sustainable development in developing countries; and
how to ensure high levels of compliance with the increasingly onerous obligations likely to be imposed on parties.

Endnotes

United Nations Framework Convention on Climate Change, Intergovernmental Negotiating Committee for a Framework Convention on Climate Change (1992), 31 I.L.M. 849, available online at http://unfccc.int/resource/docs/a/18p2a01.pdf.
Report of the Conference of the Parties on its Third Session, Kyoto Protocol to the U.N. Framework Convention on Climate Change, 3rd Sess., pt. 2, Annex I, U.N. Doc. FCCC/CP/ 1997/7/add. 1, reprinted in 37 I.L.M. 22 (1998)
For the most recent summary for policy makers, see Working Group I, Intergovernmental Panel on Climate Change, Climate Change 2007, “The Physical Science Basis, Summary for Policymakers”; Intergovernmental Panel on Climate Change, Climate Change 2007, “Impacts, Adaptation, and Vulnerability, Summary for Policymakers”; Intergovernmental Panel on Climate Change Working Group II, Climate Change 2007, “Mitigation of Climate Change, Summary for Policymakers”, all available online at www.ipcc.ch.
The term commonly used for emission reduction efforts is “mitigation”. The ability to convince the United States on the one hand and key developing countries on the other hand, to commit to meaningful mitigation actions is generally seen as key to the success of the current round of negotiations.
There is, for example, ongoing debate on whether to continue with absolute limits on a party to party basis. The future of the three flexibility mechanisms is also very much part of the debate.
Emissions from international transport by air or water are not included in party’s emission inventories for the current commitment period. The challenge is to find a way to decide how to allocate emissions for transportation between parties, and for transportation between parties and non-parties.
This issue was first raised in Montreal and is likely to be part of any post-2012 agreement. The issue is how to encourage developing countries, since they are currently not required to account for land use change, to reduce deforestation. Deforestation is considered to contribute up to 20% of the increases in GHG concentrations in the atmosphere.
In the Bali mandate negotiated in 2007, funding mechanisms and technology have attained a new status as key pillars of the post-2012 regime.
Sectoral approaches refer to the concept of setting emissions limits for industry sectors. Such limits can operate either in place or in addition to country by country targets. Most likely, sectoral targets would be set on an intensity basis for a limited number of sectors, with those sectors being limited in their emissions per unit of production or service provided.
The Copenhagen Accord was at the time of writing available as part of document FCCC/CP/ 2009/L.7, available on the UNFCCC website at http://unfccc.int/2860.php.
For an update of the 2011 technical negotiations leading up to Durban, see, for example: http://www.odandbrown.co.uk/wp_e2c2cop/archives/uncategorized/getting-down-to-text-in-bonn/.

When the ‘Natural Resource Curse’ Becomes a Social Blessing: Sustainable Governance of Oil and Gas Development in Shetland Islands

Tue, 20 Sep 2011 00:00:00 GMT

1. Introduction

International literature in the 90s used the term “natural resource curse” in order to define the problems created in countries with rich natural resources such as oil. In Brunnschweiler and Bulte, according to current literature, resources are associated with (i) slower economic growth, (ii) violent civil conflict, and (iii) undemocratic regime types.[1] Terry Lynn Karl notes that the exploitation of oil has a profound regional and local impact and the localities where oil is located over time tend to suffer from lower economic growth and lower per capita incomes than the rest of the country, greater dislocations, higher environmental and health hazards and higher levels of conflicts. The consequences put also barriers to economic diversification; have poor social welfare performance, inequality and unemployment. In addition, oil-led development means that countries are overwhelmingly dependent on revenues gleaned from the export of petroleum.[2] This would mean uncertainty when there is oil windfall and fluctuations in the exchange rate.

The case of Shetland Islands sets a new paradigm in the opposite direction. As we will examine below, a cluster of isolated islands in the North Sea have set a World example in sustainable development governance by utilizing their oil and gas resources for the benefit of their people, through the empowerment of the local authorities and the civil society.

Shetland in Scotland, United Kingdom, stretches in about one hundred islands in the North Sea, 640 km away from the Arctic Circle and 360km from Norway. Only 15 islands are inhabited. A cliffy sea landscape 2,702 km of coast, with a varied, rich geology heritage of 3 billion years span.[3] According to 2009 data, the population of Shetland inhabited islands is estimated to 22,210.[4]

Before the oil-extraction era at the end of the 70s, the economy of Shetland was based on fishing. However, good fishing was only occasional which meant that life was difficult for many islanders who were forced to immigrate to other countries. Immigration was a feature of island life for decades, resulting to a dramatic decline of the population.

2. Structure and Function of Sustainable Governance in Shetland Islands

The causes behind the change in the social and economic context are not found solely in the discovery of petroleum. On the contrary, it was the institutional consolidation of islands capacity building towards sustainable development that brought recovery. During the late 1960s and early 1970s, the strengthening of local entrepreneurship in fisheries, knitwear, agriculture and tourism on one hand and the assistance from the newly-established Highlands and Islands Development Board, brought a better economic position “so to claim that the oil industry needed Shetland more than vice versa”.[5]

The Highlands and Islands Development Board (HIDB) was a regional development agency that was set up by act of Parliament in 1965 to operate in an area of North Scotland that had a wide range of physical and economic disadvantages (poor environment for agriculture, soil of low fertility, distance from established centres of production, small local market areas) and of a distinct culture. The principal objects of the HIDB were defined as i) to assist the people of the Highlands and Islands to improve their economic and social conditions and to ii) to enable the Highlands and Islands to play a more effective part in the economic and social development of the nation. The Board operated in three main fields: “a) the provision of financial assistance to businesses b) the undertaking of development projects carried out ‘at its own hand’, c) advisory functions, social planning, research and long-term economic promotion”.[6] As a result, the establishment of HIDB and the arrival of large employers halted the depopulation of the area. In addition, the oil activity a decade later resulted in the rose of the population by 31% between 1971 and 1981.[7]

It is worth underlining here the HIDB’s strong social purpose of development and the understanding of the ephemeral nature of oil-related industry employment. After careful planning, its physical effects were remarkably limited and the deal struck between Shetland and the oil industry transformed prospects for the Shetland community.[8] In 1991 it was superseded by Highlands and Islands Enterprise (HIE) which operates through a network of Local Enterprise Companies (LECs).

Another strong institutional body that formed the framework where sustainable development governance took place is the Shetland Islands Council (SIC). It is one of the 32 local authorities across Scotland and was formed in May 1975 by succeeding Zetland County Council and Lerwick Town Council. This local government reorganization was the response towards the coming of the North Sea oil and its upheaval.[9]

SIC consists of 22 Councilors serving a population of approximately 22,000 for practically all social and economic issues, such as education, health, roads, tax, culture etc. Councilors have responsibility to the people in their area and a lot of their time is spent listening to local groups and community councils, dealing with local issues and problems and representing their constituents’ interests.

It is important to highlight that SIC is the major employer within the islands, occupying 3,251 employees, consisting the 27% of the active workforce. The Council receives funding from the Scottish government, council taxes, fees and charges. At the same time it is responsible for a number of other accounts from funds from harbor charges, housing rents, returns from investments, revenue funds etc.[10]

SIC’s priority to consolidate sustainable development can also be found in “Shetland Structure Plan 2001-2016”. It is defined: “the basic role of the Structure Plan is to balance the need for development and infrastructure against protection for the built and the natural environment and the interests of established communities. Plan sets out the principles for the way land is to be used….Structure plans are also needed to achieve consistent and coherent development and make an important contribution to sustainable development”. It does recognize that the Structure Plan is only one of the several strategies influencing Shetland’s future, some of these developed at European or national level, whilst others are locally determined. That is why it is obliged to take into account of the land-use implications of all the other strategies to which the Council is committed.[11]

The Sullom Voe Terminal in the Shetland isles is one of the largest oil and liquefied gas terminals in Europe. Constructed between 1975 and 1981, it covers more than 500 hectares and handles production from more than three dozen oilfields operating both east and west of Shetland. Around 30 different companies have interests in the terminal, which receives productions through pipelines systems and by shuttle tanker.[12]

The building of the terminal brought a challenge of problems and benefits. In order to control the new challenge, the Shetland Islands Council was formed and given power and money by the national government enabling it to combine the roles of mainland, regional and district councils to control all the oil industry development. It should be underlined here that the oil companies in response, approached the local authority to create an environmental forum to monitor the Sullom Voe area; According to ‘Shetland Times’ newspaper: “the Council playing David to the oil industry’s Goliath, managed to secure what seems like a superb compensation deal for the disturbance caused by the oil industry. The profits from the deal went into a specially created charitable trust, managed by SIC. In 2010 the trust’s coffers had 40 million pounds”.[13]

Sullom Voe Association (SVA) was created by Shetland Islands Council and the two major pipeline groups that use the Sullom Voe terminal. The initial environmental forum became the Shetland Oil Terminal Environmental Advisory Group (SOTEAG) to monitor Sullom Voe, and was in charge with examining and advising on the environmental implications of the terminal. SOTEAG consists of 15 members from the civil society and the government: universities, oil industry, marine interest groups, government agencies even an organization for the birds. SOTEAG is an independent and unbiased group that advises, monitors, and reports on the environmental impacts of the oil terminal and shipping operations on Sullom Voe and the surrounding area. A second entity created by Sullom Voe Association (SVA) is the Sullom Voe Oil Spill Advisory Committee (SVOSAC), responsible for providing advice on oil spill, containment and recovery and in charge to oversee oil spill planning operations and prevention in the Sullom Voe area.[14]

According to ‘The Shetland Times’ report, in 2010 Shetland Islands Council granted planning permission to oil company Total for its £500 million gas plant at Sullom Voe after agreeing to alter its plans so that local businesses benefit from the lucrative construction work. The gas plant is expected to provide construction jobs for four years with up to 500 workers required at its peak.[15] The year after, in 2011, SIC charged Total £550,000-a-year to rent the land for its new gas plant once production starts in 2014. A quarterly levy will also be payable, based on the amount and value of gas and oil condensate flowing in from Laggan-Tormore. Till 2014 the gas company will also have to pay the local authority a rental of £100,000 per year. The Council convener estimated that the economic activity related to the plant would generate in the community about £200 million over 30 years. In addition during the lease negotiations the council secured the legal right to demand access to Total’s meters and records to check that the gas throughput it has declared is genuine.[16]

It worth adding that Sullom Voe terminal makes a significant contribution to the electricity distribution supply network, from the excess energy produced by gas turbines there. It provides a third of Shetland’s power demand and it is considered a clean energy source that offsets power that would otherwise be generated elsewhere using heavy fuel oil.[17]

3. Community Planning, Consultation & Involvement

Community planning, consultation and involvement are considered the key factors for the achievement of Shetland goals for sustainable development governance. Community planning is about citizen’s participation in the decision making process on all the community issues. This can be seen in the actions taken and the statutory framework created by the Scotland government and the Shetland Islands Council for these remote islands.

As SIC defines: “Community planning is about public, private and voluntary organizations working together, and with communities, to improve services across Shetland and ensure they are tailored to your needs. Community planning cannot be an additional or parallel process to the various partnership structures already in place-it should act as the key over-arching framework for other partnerships and initiatives at the regional, local and neighborhood level.” The Community Planning Partnership and the Community Planning Delivery Group are responsible for the strategic overview of community planning in Shetland.[18]

A number of measures and actions were developed to strengthen community involvement. Annual Single Outcome Agreements (SOAs) set out the priorities between central government, local authority and other key partners (voluntary sector, businesses etc.) at the local level. They allow greater flexibility for local solutions to local circumstances, helping to devolve decision making away from central government and reduce bureaucracy. Having everyone committed to the same agenda as their starting point for planning service development and delivery is critical for its success. For example the shared outcomes of SOA for 2011-2012 are on issues concerning future population declining numbers, climate change implications and the climate change act implementation, the effects of the global downturn in the local economy, the 500 million pounds gas plant project at Sullom Voe in 2013 and its local job opportunities.[19]

The extensive consultation exercise carried out in 2004 to ask citizens what they felt were going to be the most important issues for Shetland over the next 20 to 30 years, led to the creation of The Shetland Resolution by the Community Planning Partnership, that reflects the community’s future aspirations:

“In our economy,

We’ll seek to create fulfilling, well paid jobs for all, whatever their talent.
We’ll use the natural resources at our disposal responsibly and seek more control over them.

In our environment, we shall…

Recognize that our livelihood depends on our environment;
Work with nature in all its diversity, not against it;
Restore our environment where it has been damaged;

And… We may be a small place, but if we’re clever we can be more successful.

We may have few people, but we can welcome more.”[20]

The small population of Shetland which is dispersed throughout the islands and the awareness that “no one place or community is the same as the other” led to the decision that ‘the one-size-fits-all” approach from the capital would be ineffective and has to go as local as possible. Thus the Local Service Delivery Groups (LSDG) in each locality are local service providers and community representatives that work together and closer to communities in order to help them find some of their own solutions to local services needs.[21]

4. Shetland Marine Management through Strategic Environmental Assessment (SEA) and Marine Spatial Plan (MSP)

According to the Shetland Local Plan adopted in 2004, the coast is considered a valuable economic, environmental, archaeological and social asset. It is highly protected against inappropriate development and only developed, regenerated or restored where necessary, in a sensitive way.[22]

United Kingdom is applying the European Union Strategic Environmental Assessment (SEA) on the offshore energy licensing. According to SEA procedure, an environmental report of a “sufficient quality” and after extensive consultation is prepared, in which the likely significant effects on the environment and the reasonable alternatives of the proposed plan or programme are identified. The SEA Member States must monitor the significant environmental effects of the implementation in order to identify unforeseen adverse effects and undertake appropriate remedial action.[23]

A SEA process has been followed for the Shetland Marine Spatial Plan (MSP) that is under public consultation and trial implementation since 2006. The Plan represents an innovative approach to marine planning, by establishing an overarching policy framework to guide the placement of activity, from marine renewable energy to aquaculture so to make marine management more efficient, inclusive and accessible now and for future generations.[24] The SEA in this case identifies, describes and evaluates the likely significant effects on the environment of implementing the Plan. MSP although a non-statutory document, seeks to foster shared understanding and to promote consensus as to how and where marine management can lead to community benefits and economic regeneration. It is recognized that Shetland marine area is an area with a wealth of social and cultural environmental and economic resources that are increasingly coming under pressure from the aspirations of a growing number of users.

Interestingly, although the MSP considers Sullom Voe’s role as major oil landing facility to continue for the next 20-25 years, at the same time it urges early considerations to be given to what occurs post-Sullom Voe and the future prospects of the port. Any development would have to be compatible with aquaculture and fishing industry, together with providing a habitat for a wide range of flora and fauna including some internationally protected and rare species. Understandably, as according to a 2003 socioeconomic review, aquaculture and fishing were the major sea industries with 112 businesses of a total of 144, and with a turnover of £124 million from a total of £302 million deriving from jobs around Shetland Sea.[25]

5. Conclusions

Shetland Islands managed to reverse the ‘natural resource curse’ into a ‘social blessing’ by proactively establishing the legal framework that would protect and strengthen the community’s interests. The Scottish government gave local authorities all the power to confront the oil industry’s ‘Goliath’. In addition, the newly-established Highlands and Islands Development Board supported effectively the local entrepreneurship in fisheries, knitwear, agriculture and tourism bringing the island to a better economic position “so to claim that the oil industry needed Shetland more than vice versa”. Furthermore, Shetland Islands Council included in their long term plans and strategies the International, European Union, National and Local policies and principles to secure the achievement of sustainable development governance goals, such as the continuous citizen’s participation in the decision making process on all the community issues through an exceptional network, to include all dispersed localities. The profits from oil and gas business are shared within the local community through social investments. As a result, cooperation between Shetland and the oil industry is a win-win situation. Oil industries not only have fully complied with the requirements set by Shetland Authorities and Civil Society, they do support their policies, having realized this to be the guarantee for their own sustainable financial development. For example, being the focus of what is believed to be the most intensive monitoring programme of any industrial installation in the UK, Europe or elsewhere, Sullom Voe Oil and Gas terminal is one of the cleanest oil ports in the world, with no harmful effect in the harbor’s rich marine life.[26]

Despite Shetland’s remote location and small population, their successful off-shore oil environmental management is considered a model to study and adopt. The Alaska Citizens Council in Alaska was formed after the Exxon Valdez oil spill in 1989 and based their structure and function on the Shetland Islands Council (SIC) model.[27] The stakeholders of a West African offshore oil development and maritime oil transport invited the Shetland advisors to present the island’s Sullom Voe port as a case of best practice in port management and tanker traffic control systems.[28] The Washington Oil Spill Advisory Council, USA, in one of their reports praised Shetland Island’s oil spill prevention program and examined the context of their effectiveness noting: “The Shetland Island’s oil spill prevention program is highly successful and is based solely on adherence to strict environmental standards originally established through a detailed environmental baseline assessment. This baseline assessment was completed prior to commencing any oil operations. The standards are enforced through a partnership of local stakeholders and the oil companies themselves”.[29] The Bank of Scotland Quality of Life annual survey recognized Shetland in 2008 as the place “where living standards are the highest in Scotland”. According to the Chief Economist of the Bank, the residents of the Shetland Islands tend to have higher than average earnings in Scotland as well as a high employment rate; they also have good health, the best education results and suffer low burglary rates.[30] Shetland is also considered a well off place offering many amenities to its citizens such as an excellent network of good quality roads, leisure centers, care homes etc. It worth repeating here a phrase from the Shetland Resolution that was formed by the answers of Shetland citizens: “We may be a small place, but if we’re clever we can be more successful.” Shetland Islands are a World example.

Endnotes

Brunnschweiler Ch., Bultey E., Natural resources and violent conflict: resource abundance, dependence and the onset of civil wars, Oxford Economic Papers, 2009, p.651.
Karl L Terry, Oil-Led Development Social, Political, and Economic Consequences, CDDRL working papers, no 80, Jan.2007, pp.2,4,24, http://iis-db.stanford.edu/pubs/21537/No_80_Terry_Karl_-_Effects_of_Oil_Development.pdf
http://www.geoparkshetland.org.uk/ .
Shetland Islands Council, Shetland in Statistics, p.9, http://www.shetland.gov.uk/documents/SinStatsBinder1.pdf
http://move.shetland.org/economy .
http://www.hie.co.uk/common/handlers/download-document.ashx?id...9e63... .
Shetland Islands Council, Shetland in Statistics, p.9, http://www.shetland.gov.uk/documents/SinStatsBinder1.pdf
http://www.geoparkshetland.org.uk/geological_journey/biodiversity.html .
May 14th, 2010, http://www.shetlandtimes.co.uk/2010/05/14/times-past-69
Shetland Islands Council Information Supplement, pp.3,12 http://shetland.gov.uk/council/documents/InformationSupplement.pdf
Shetland Islands Council, The Shetland Structure Plan 2001-2016, pp.3-4,2000, http://www.shetland.gov.uk/splan/plan.htm
Shetland Oil Terminal Environmental Advisory Group, SOTEAG in Shetland-World Class marine Environmental Management, http://www.soteag.org.uk/brochure/soteag_brochure.pdf
May 14th, 2010, http://www.shetlandtimes.co.uk/2010/05/14/times-past-69
http://www.soteag.org.uk/brochure/soteag_brochure.pdf .
Robertson J., ‘Total is granted permission for gas plant –after agreeing to help Shetland businesses benefit’, Feb.24th, 2010, http://www.shetlandtimes.co.uk/2010/02/24/total-is-granted-permission-for-gas-plant-%E2%80%93-after-agreeing-to-help-shetland-businesses-benefit
Robertson J., ’Total to pay £550,000 in rent into council coffers plus gas production levy’, May 3rd, 2011, http://www.shetlandtimes.co.uk/2011/05/03/total-to-pay-550000-in-rent-into-council-coffers-plus-gas-production-levy
http://www.soteag.org.uk/brochure/soteag_brochure.pdf .
http://www.shetland.gov.uk/communityplanning/ShetlandsCommunityPlanningPartnershipStructure.asp .
http://www.shetland.gov.uk/communityplanning/documents/SOAFINAL_201112.pdf .
http://www.shetland.gov.uk/communityplanning/TheShetlandResolution.asp .
http://www.shetland.gov.uk/policy/LocalServiceDeliveryGroups.asp .
Shetland Islands Council, Shetland Local Plan,pp.27-29, http://www.shetland.gov.uk/developmentplans/documents/AdoptedLPpolitics.pdf
Strategic Environmental Assessment (SEA) is a process established by European Union for a wide range of public plans and programmes (Directive 2001/42/EC), http://ec/europa.eu/environment/eia/sea-legalcontext.htm
http://www.nafc.ac.uk/ssmei.aspx .
A Marine Spatial Plan for Shetland Islands, Police Framework, Consultative Draft, 3rd Edition, 2007,pp.11,32,37, http://www.nafc.ac.uk/WebData/Files/Part%200ne%20policy%20Framework.pdf
http://www.jncc.gov.uk/Publications .
Washington Oil Spill Advisory Council, Report Providing Recommendations to the Governor, the Legislature, and the Department of Ecology on State-of-the-Art Oil Spill Prevention Program,Council Operations and Funding, and Sustainable Funding for the Oil Spill Program, p.56, Oct.2nd, 2006, http://www.psp.wa.gov/downloads/OSAC/osac_archive_20090701/assets/pdf/finalreport.pdf
Kloff S., Wicks C., Environmental Management of offshore oil development and maritime oil transport-A background document for stakeholders of the West African Maritime Eco Region, p.30, Oct.2004, http;//cmsdata.iucn.org/downloads/offshore_oil_en,pdf
http://www.psp.wa.gov/downloads/OSAC/osac_archive_20090701/assets/pdf/finalreport.pdf .
http://move.shetland.org/10-reasons-to-move-to-shetland-v1-0.pdf .

Plutonium Quandary: What to Do with Nuclear Materials that Come Out of Weapons Programs

by Dr. Elli Louka, Founder of Alphabetics Development & Investment (ADI), USA — Thu, 07 Apr 2011 00:00:00 GMT

1. The Challenge

An omnipresent issue in disarmament talks is what to do with the material that comes out of dismantled weapons so that such material is not recovered to produce nuclear weapons or does not fall into the hands of terrorists. As long as the substances that make nuclear weapons continue to exist and the knowledge of how to make nuclear weapons is available nuclear weapons will be produced. This is and is bound to be an unending nightmare for the foreseeable future.

The United States and Russia have declared that each has accumulated about 50 metric tons of weapons plutonium in excess of their military needs. The two countries have started to consider methods to make this plutonium non-usable in weapons production. The storage of plutonium in weapons-ready form is not secure enough since such storage allows for the quick retrieval of plutonium. To ensure that disarmament does indeed take place it is necessary to develop technical barriers so that the rapid recovery of plutonium is prevented. The Plutonium Disposition Agreement between the United States and Russia rests on the idea that the two states must make plutonium retired from weapons harder to recover. One way to secure plutonium, so that it is not ready for use in weapons production, is to mix it. Plutonium is mixed to produce mixed oxide (MOX). Plutonium can also be immobilized using the technology available for the disposal of high-level radioactive wastes. The expense and technical difficulty involved in recovering plutonium from MOX or immobilized waste should make such recovery prohibitive.[1] As the discussions for a potential agreement to secure plutonium were underway, the usefulness of such an agreement came under question. Given the huge amounts of plutonium that exist, what was the real benefit of safeguarding the 50 metric tons that these countries declared in excess of their weapon needs?[2] It seemed like a drop in the ocean. On the other hand, setting in motion an institutional apparatus for the withdrawal and permanent disposition of plutonium not needed for military purposes could be seen as a breakthrough. Knowing that there is an institution in place for the safe and proven withdrawal of plutonium states may have fewer qualms about withdrawing even more plutonium.

2. The Plutonium Disposition Agreement

The Plutonium Disposition Agreement was signed eventually on September 1, 2000.[3] The purpose of the agreement is to ensure that plutonium is not to be readily available for use after its retirement from military arsenals. This was to be accomplished in two ways:

(1) By fabricating mixed oxide (MOX) fuel consisting of plutonium and uranium oxides for use in MOX reactors or light water reactors;

(2) By immobilizing plutonium at low concentrations with high-level radioactive waste in glass or ceramic forms.[4] The immobilization technique is ideal for creating large and highly radioactive objects that are difficult to steal.

Both the MOX fuel method and the immobilization method make difficult the recovery of plutonium for military purposes. It must be underlined that these methods do not destroy plutonium but simply increase the costs of its recovery. Nuclear materials are considered not separable from other radioactive materials when they have a total external radiation dose rate in excess of 100 rem per hour at a distance of three feet. In this case they are declared self-protected because retrieving them will require extra measures to protect oneself from the radiation. Based on this criterion, immobilized plutonium should remain self-protected for about one hundred to two hundred years. On the other hand, a 100-200 rem dose is rarely fatal. Some terrorists may be willing to receive a dose at this level to achieve their objectives.[5]

The Plutonium Disposition Agreement provides that the United States and Russia are to dispose 68 metric tons of weapons-grade plutonium (34 each), that is enough material to make approximately 17 000 nuclear weapons. This disposition will be accomplished by using the plutonium as MOX fuel in reactors or by immobilizing it with high-level radioactive waste or by any other method agreed by the state parties in writing.[6] Each state undertakes to dispose of no less than two metric tons of plutonium per year by completing the construction and beginning the operation of facilities designated in the agreement no later than December 31, 2007.[7] State parties undertake also to double their disposition rate at the earliest practicable date based on a detailed action plan that could include cooperation with other countries.[8] The United States should make available to Russia $200 million for the activities undertaken by Russia to fulfill its obligations under the Agreement[9] — an amount that was not sufficient eventually to jumpstart the Russian disposition program. At the time of the conclusion of the agreement, the Russian program was estimated at over $1.7 billion for a twenty-year period while the United States program (that included both immobilization and the production of MOX fuel) was estimated at $4 billion.[10]

The Agreement terminates on the date the states exchange notes confirming that 34 metric tons of plutonium has been disposed of by each of them in compliance with the Agreement. Any other plutonium declared in the future as in excess of defense needs could be disposed of under the conditions specified in the Agreement.[11] The states designate an Executive Agency for the implementation of the Agreement -- the United States Department of Energy (DOE) and the Russian Ministry of Atomic Energy.[12] The Joint Consultative Commission, established under the agreement, will resolve questions about the implementation of the agreement and will consider additional matters necessary to improve the viability and effectiveness of the Agreement.[13]

3. Implementation

Going from words to deeds has not been easy. Russia has yet to engage in the projects it undertook to complete based on the agreement. Russia, when it signed the Agreement, did not have large MOX reactors and did not have the means to manufacture MOX fuel. Assuming that MOX fuel could be used in light-water reactors, those reactors would have to undergo technical modifications. Because technological and financial assistance was not forthcoming from the United States and other countries,[14] Russia suspended the Plutonium Disposition Agreement on June 11, 2003. The United States is continuing with its own plutonium disposition program.

The United States plutonium disposition program is supported by the Office of Fissile Materials Disposition within the National Nuclear Security Administration (NNSA) and has three components the Pit Disassembly and Conversion Facility (PDCF) Project, the domestic Mixed Oxide (MOX) Fuel Project, and support for Russian MOX Fuel Project.[15]

The purpose of the PDCF facility, located at the Savannah River site, is to dismantle pits -- nuclear warhead components containing weapons grade plutonium. After the plutonium is separated an oxide form of plutonium is produced to be used by the MOX Fuel Fabrication Facility (FFF) to make MOX fuel.[16]

The MOX Fuel Project (MOX FFF) fabricates MOX fuel so that it can be used in commercial light water reactors.[17] The MOX FFF will use the plutonium oxide produced by the PDCF, blend it with commercial uranium oxide to develop the MOX fuel appropriate for commercial reactors.

The MOX FFF may be stopped in its tracks eventually. Efforts to convince utilities to use MOX fuel have not produced much positive feedback. Commercial reactors need stable fuel supplies. Such stable supplies are not necessarily guaranteed the way the plutonium disposition program is designed. The burning of MOX fuel in commercial reactors does not enjoy the support of the NGO community and environmental organizations have expressed opposition to such a program. The fact that the plutonium program is linked with the Russian program through a bilateral treaty generates more uncertainty about its future.

The Russian MOX Project is an adaptation of the design of the United States MOX FFF oriented to help Russia implement the plutonium disposition agreement. The idea is to replicate the United States MOX FFF design by adapting it to account for differences in environmental conditions and regulatory requirements in Russia.[18] In 2010 the United States and Russia signed a Protocol to the Plutonium Disposition Agreement hoping to revive the Agreement.[19] Whether this Protocol will revitalize the Russian disposition program remains to be seen.

4. The 2010 Protocol to the Plutonium Disposition Agreement

The 2010 Protocol[20] has mandated a number of changes to the 2000 agreement. The United States abandons the immobilization method of plutonium disposition and concentrates solely on the MOX option. According to article III of the agreement the United States is to dispose its 34 metric tons of plutonium in light water reactors while Russia is to use its BN-600 fast reactor and its BN-800 fast reactor to dispose its 34 metric tons of plutonium. The Agreement is more flexible in that it allows the states to achieve a disposition rate “of no less than 1.3 metric tons per year”[21] and to increase the disposition rate “to the extent practicable”.[22] The government of the United States is to make available to Russia $400 million for the activities undertaken by Russia for the execution of the Agreement.[23] The United States plans to complete its Mixed Oxide Fuel Fabrication Facility in 2016 and to begin the disposition of plutonium the four light water reactors in 2018.[24] Russia plans to finish the construction of the BN-800 in 2013 the latest and the completion of the modification of the BN-600 (so that it can use MOX fuel) in 2014 the latest.[25] It targets to finish the construction of the facility for the fabrication of MOX fuel that would be used in the BN reactors in 2012 the latest.[26] While this makes the Russian program look more accelerated than the US program, the disposition of plutonium is targeted to begin in 2018.[27] It is estimated that it would take 20-25 years to dispose of the 34 metric tons of plutonium.[28]

While each party is responsible for “ensuring safety and ecological soundness of disposition plutonium activities”[29] critics have argued that the immobilization is a less expensive and safer means for the disposition of plutonium. This is especially because the MOX option does not guarantee that fuel produced using MOX reactors will not be used again for the construction of nuclear weapons. Because of this risk, the 2010 Protocol includes additional provisions that would prevent weaponization of plutonium fuel.[30]

*****

The Plutonium Disposition Agreement and associated 2010 Protocol demonstrates that the stumbling blocks to disarmament have to do not only with the lack of will of those who would rather not disarm but also with the practical difficulties of verification and the question of what to do with the radioactive materials that come out of nuclear weapons programs.

Endnotes

See Adam Bernstein, Russia: Introduction to Plutonium Disposition, Nov. 21, 1997 available online http://www.nti.org/db/nisprofs/russia/fissmat/plutdisp/dispovr.htm.
Ibid.
Agreement between the Government of the United States of America and the Government of the Russian Federation concerning the Management and Disposition of Plutonium Designated as No Longer Required for Defense Purposes and Related Cooperation, June 4, 2000 [2000 Agreement].
Art III, ibid.
See Panel on Reactor-Related Options for the Disposition of Excess Weapons Plutonium of National Research Council, Management and Disposition of Excess Weapons Plutonium: Reactor-Related Options, at 47, n. 23 (1995). See also The Physics Department at Idaho State University available online http://www.physics.isu.edu/radinf/risk.htm. At doses up to 100 rem, the cells might not be able to repair the damage and may be changed permanently or die. This is the origin of increased risk of cancer because of radiation exposure. At doses higher than100 rem, one may experience radiation sickness. Radiation sickness is the result of the damage to the intestinal lining so that it cannot perform the basic functions of water intake and nutrients intake. This leads to nausea, diarrhea and general weakness. With doses more than 300 rem, the immune system is damaged. With doses near 400 rem, about 50 percent of the people are expected to die within 60 days after the exposure mostly because of infections.
Art. III, 2000 Agreement, supra note 3. While the United States intends to use 25.5 tons as fuel and to immobilize 8.5 tons Russia intends to use all 34 metric tons as fuel. See Annex on Quantities, Forms, Locations, and Methods of Disposition, ibid.
Art. IV(2), ibid.
Art. V(1), ibid. Article VII and the Annex on Monitoring and Inspections provide details on the inspection and monitoring efforts to be undertaken by the parties. Ibid.
Art. IX, ibid.
Elena Sokova, Plutonium Disposition, July 2002, available online http://www.nti.org/e_research/e3_plutonium_disposition.html.
Art. XIII(4), 2000 Agreement, supra note 3.
Art. XI(1), ibid.
Art. XII, ibid.
Germany had signed a trilateral agreement with Russia and France on Russian plutonium disposition that it decided not to renew after its expiration in 2002. See Russia: Archived Plutonium Disposition Delopments (1997-2003), NTI available online http://www.nti.org/db/nisprofs/russia/fissmat/plutdisp/plutdevs.htm.
See United States National Nuclear Security Administration http://nnsa.energy.gov/nuclear_nonproliferation/plutonium_disposition.htm.
Ibid.
The plan is to construct the facility at the Savannah River site. See United States Department of Energy (DOE) available online http://www.ch.doe.gov/html/buttons/programs.htm.
Ibid.
Signing of the Plutonium Disposition Protocol, Press Release, United States Department of State, Apr. 13, 2010 available online http://www.state.gov/secretary/rm/2010/04/140120.htm.
2010 Protocol to Plutonium Disposition Agreement, Apr. 13, 2010 [hereinafter 2010 Protocol].
Compare art. IV of 2010 Protocol with art. IV of 2000 Agreement which required parties to “dispose of no less than two (2) metric tones per year”.
Compare art. V(1) of 2010 Protocol with art. V(1) of 2000 Agreement which required parties to develop a detailed action plan to at least double the disposition rate at the earliest practicable date.
Art. IX, 2010 Protocol, supra note 20.
Annex on Key Program Elements, ibid.
Ibid.
Ibid.
Ibid.
Elena Sokova, Plutonium Disposition, Sept. 16, 2010 available online http://www.nti.org/e_research/e3_plutonium_disposition.html.
See Art. VII(1)(a), 2000 Agreement and 2010 Protocol, supra notes 3 and 20.
For instance it is provided that the “ radial blanket of the BN-600 reactor will be completely removed before disposition of conversion product begins in it, and the BN-800 will be operated with a breeding ratio of less than one for the entire term of this Agreement.” See art. III(3), 2010 Protocol, supra note 20. See also art. VI (3)-(4), ibid.

Who Shares Wins: The New Sovereignty Discourse

Wed, 06 Apr 2011 00:00:00 GMT

1. The Debate

This article theorizes the ways in which the new sovereignty discourse relates to modifications in the nature of statehood and the emergence of new forms of international conduct. States no longer assert their authority on the grounds of jurisdictional exclusivity, but rather decide to share it within collective systems to deal with the realities of a late-modern world. Thus ‘sovereignty no longer equates with statehood’,[1] but a complex network of multi-actor governance domains prompts us to reassess how states have come to perform their functions within a wider context of ‘multiple modernities’, relocating ‘the major arenas of contestation … to new areas in which different movements and societies continually interact’.[2] Also:

The very moment that scholars decided that the meaning of sovereignty lies very much in what we make of it through our linguistic conventions and rhetorical practices, they also opened up a new field of inquiry within which this concept could survive and thrive, albeit now as an object of inquiry rather than as its uncontested foundation … The very focus on the concept of sovereignty brought about by this linguistic reorientation – rather than on the facts or norms of sovereign statehood – has provided a common ground where the concerns of lawyers and political scientists can again meet.[3]

Whether or not one takes sovereignty as a ‘fixed construct’ or as a ‘continuous variable’,[4] ‘in the absence of a normative meta-vocabulary’,[5] the concept is likely to remain open to various interpretations. Yet, one finds it difficult to counter Held’s argument that the late-modern state lies at the intersection of global processes, that

combine to restrict the freedom of action of governments and states by blurring the boundaries of domestic politics, transforming the conditions of political decision-making, changing the institutional and organizational context of national polities, altering the legal framework and administrative practices of governments and obscuring the lines of responsibility and accountability of national states themselves. These processes alone warrant the statement that the operation of states in an ever more complex international system both limits their autonomy (by changing the balance between the costs and benefits of policies) and impinges increasingly even more upon their sovereignty.[6]

Shaw also reflects on sovereignty’s problematic predicament:

First, states have increasingly “pooled” their sovereignty … [it] has been internationalized in new forms of cooperative exercise. Second, individual states’ jurisdictions are increasingly understood extraterritorially as well as territorially ... Third, and possibly most important, judicial sovereignty, constitutionally and legally defined, is often seen to have diverged from the substance of power relations.[7]

2. Transformations

Another factor central to the development of novel forms of understanding contemporary statehood has been the emergence of multiple, overlapping and, more often than not, horizontal patterns of interactions among states and non-state actors and institutions that opetate alongside or even beyond the traditional state level, and whose cross-border effects and transnational policy outcomes impact heavily on the capacity of states to retain their centrality in the management of global affairs. Such trends have been facilitated further by the emergence of what has been termed as the ‘new governance’ approach to domestic and global politics; namely, the proliferation of horizontally co-ordinated modes of collective governing based on power diffusion, informal rules and processes, soft law practices and regulations, collective norm orientation, and flexible codes of conduct, involving a plethora of local/national and regional/global actors and institutions. The overall result has been a transcendence of hierarchical forms of government and the emergence of what has been termed ‘governance without government’.[8] As Caporaso notes, while the latter refers to the institutions and agents occupying key institutional roles, ‘governance’ refers to ‘collective problem-solving in the public realm’, or the way in which relations are governed among constituent units within a system of dispersed political authority.[9]

The new governance discourse, evident in comparative public policy since the late 1980s, has also acted as a system-transforming mechanism of some of the fundamental and perhaps even foundational attributes of contemporary statehood. A clear manifestation of that has been the institutionalization and internationalization of new forms of ‘co-governance’[10] and, in the words of Jessop, of ‘multilevel meta-governance’,[11] as in the emerging polity structures of the European Union, whereby ‘Political hierarchy and steering are replaced by segmented policy-making in multiple arenas characterized by negotiated governance’.[12] The point being made here is that states –what realist and neorealist thinking have long regarded as the basic (or dominant) political units in the international system– are only one set of actors out of many within an even globalizing world setting that has become, to draw from Elazar’s neoteric metaphor, ‘cybernetic’: it is ‘based on multiple arenas, many channels of communication among [actors], and a variety of different mechanisms for mobilizing them to undertake particular courses of actions in place of a single channel’.[13]

As states ‘are locked into a diversity of processes and structures which range in and though them, linking and fragmenting them into complex constellations’,[14] the emerging forms of global organization reflect the growing fusion between foreign and domestic lines,[15] and a corresponding desire for global governance. Held explains:

Any conception of sovereignty that interprets it as an illimitable and indivisible form of public power is undermined. Sovereignty itself has to be conceived today as already divided among a number of agencies – national, international and transnational – and limited by the very nature of this plurality.[16]

All the above defy any absolutist interpretation of sovereignty, through which the modern state was recognized as the supreme authority within its borders, possessing undominated freedom of internal and external action. Rather, it is through sovereignty-sharing within collective systems that states can achieve more for their citizens than they possibly can by acting alone. The global plurality, anarchical as it may be –due to the continuing absence of a global political authority– but at the same time structured and made up of intertwined political spaces, policy domains and arenas for action, suggests that the once unchallenged functions of political control exercised by states has become all the more contested and diffuse – to the extent that states ‘no longer serve as the exclusive nexus between domestic politics and international relations’.[17] But even the shift from ‘positive sovereignty’ –‘the substantial capacity for self-government’[18] – to institutionalized shared rule does not invalidate the innate need of states to continue acting as ‘the ultimate guardians of the popular interest’.[19] Rather, it accords with the metaphor of the ‘eclipse’ of sovereignty: the latter may not be as visible as it used to be, but has found new ways of adjusting itself to the changing requirements of the day. As Wendt argues,

the result is neither anarchy nor hierarchy but the emergence of a new form of state and thus states system which breaks down the spatial coincidence between state-as-actor and state-as-structure. As such the erosion of individual state sovereignty does not imply the erosion of the state … By transferring it to a collective, states may actually strengthen their capacity to solve problems. Internationalization is a way of reorganizing and redeploying state power – not a withering away of the nation state.[20]

This is reflected in a new ‘grand dialectic’, whereby the strength of the whole is positively related to the strength of the parts.[21] Taylor explains:

This is a world in which links are established between the internal arrangements of the state and international society, and, indeed, in which international society has legitimate access to those arrangements. This a world in which attention is focused, not on the eternal verity of sovereignty, but upon the changes in the conditions under which it is exercised.[22]

Yet, ‘the territorial structure of the international state system appears to be one of the great constants in human affairs’.[23] As a result, ‘[t]here may be disagreement over how much authority state leaders should have, but it is generally assumed that the political map of the future will look much like that of today, aside from some adjustments in certain unstable areas’.[24] Despite sovereignty’s capacity for adaptation, new forms of synarchy and codetermination have altered the ability of states to act on their own terms,[25] shaking the foundations of the Westphalian system: ‘sovereignty was now a condition, even a form, of participation in the larger entity … the right to be involved, to participate in the mechanisms of international society and to represent there the interests of the state’.[26] Thus states are taken as sovereign also on the basis of their ability to act in accordance with the norms and rules of the global plurality:

Sovereignty increasingly defined a unit of participation and established a right to participate in the institutions and arrangements of the international community. Having the right to participate in the management of common arrangements with other states was a much more important consideration in sovereignty than the traditional right to exclusive management of any single function, even defence and foreign policy.[27]

3. A Conclusion

It is true that ‘sovereignty always had to take account of the circumstances of the time and of the place’, in that ‘[i]t was an absolute which had to be constantly reinterpreted in the light of the actual limitations placed on state behaviour’.[28] Today, in a world of ‘overlapping communities of fate’,[29] and in view of the changing norms and conventions of global organization, sovereignty can be considered a reflection of the constitutive role of the whole: ‘the international community could constitute the state and express its sovereignty’.[30] This ‘dialectical quality in sovereignty’ has led to a state of ‘consonance’:[31] neither the system exists independently of the parts, nor do the latter operate independently from the whole.[32] Rather, ‘the sovereignty of states obliged them to meet the norms of the international community but the norms of the international community were a product of the sovereignty of states’.[33] Whether the global system remains anchored to its structural anarchy or moves towards an ordered plurality, its actors are coming to realize the potential rewards of ‘who shares wins’.

Endnotes

M. Shaw, Theory of the Global State: Globality as an Unfinished Revolution, Cambridge: Cambridge University Press, 2000, p. 228.
S. N. Eisenstadt, ‘Multiple Modernities’, Daedalus, 129(1), 2000, p. 24
J. Bartelson, ‘The Concept of Sovereignty Revisited’, The European Journal of International Law, 17(2), 2006, p. 464.
Ibid., p. 466.
Ibid., p. 474.
D. Held, Models of Democracy, 2nd edition, Cambridge: Polity Press, 196, p. 352.
Shaw, Theory of the Global State, pp. 185-186.
J. Rosenau and E.-O. Czempiel (ed.), Governance Without Government: Order and Change in World Politics, Cambridge: Cambridge University Press, 1992. See also R. A. W. Rhodes, ‘The New Governance: Governing without Government’, Political Studies, 44(5), 1996, pp. 652-667.
J. Caporaso, ‘The European Union and Forms of State: Westphalian, Regulatory or Post-Modern?’, Journal of Common Market Studies, 34(1), 1996, p. 30.
J. Kooiman, Governing as Governance, London: Sage, 2007.
B. Jessop, ‘Multilevel Governance and Multilevel Metagovernance’, in I. Bache and M. Flinders (eds), Multi-level Governance, Oxford: Oxford University Press, 22004, pp. 49-74. See also Kooiman, Governing as Governance.
B. Laffan et al., Europe’s Experimental Union: Rethinking Integration, London and New York: Routledge, 1999, p. 98. See also, S. Hix, ‘The study of the European Union II: The “new governance” agenda and its rival’, Journal of European Public Policy, 5(1), 1998, pp. 38-65
D. J. Elazar, Constitutionalizing Globalization: The Postmodern Revival of Confederal Arrangements, Lanham: Rowman and Littlefield, 1998, p. 55.
D. Held et al., Global Transformations: Politics, Economics, Culture, Cambridge: Polity, 1999, p. 445.
J. Rosenau, Along the domestic-foreign divide: Exploring governance in a turbulent world, Cambridge: Cambridge University Press, 1997.
Held, Models of Democracy, p. 352.
G. Marks et al., ‘European Integration from the 1980s: State-Centric v. Multi-level Governance’, Journal of Common Market Studies, 34(3), 1996, p. 372.
G. Sørensen, ‘An analysis of contemporary statehood: consequences for conflict and cooperation’, Review of International Studies, 23(3), 1997, p. 260; quoted in Shaw, Theory of the Global State, p. 226.
P. Taylor, International Organization in the Age of Globalization, London: Continuum, 2003, p. 53.
A. Wendt, ‘Identity and structural change in international politics’, in Y. Lapid and F. V. Kratochwil (eds), The Return of Culture and Identity in IR Theory, Boulder, CO: Lynne Rienner, 1996, p. 61; quoted in Shaw, Theory of the Global State, pp. 93-94.
P. Taylor, International Organization in the Age of Globalization, p. 5.
P. Taylor, International Organization in the Modern World: the Regional and the Global Process, London: Pinter, 1993, p. 251.
A. B. Murphy, ‘The sovereign state system as politico-territorial ideal: historical and contemporary considerations’, in T. J. Biersteker and C. Weber (eds), State Sovereignty as Social Construct, Cambridge: Cambridge University Press, 1996, p. 81.
Ibid.
D. N. Chryssochoou, Theorizing European Integration, 2nd edition, London and New York: Routledge, 2009, pp. 131-146.
P. Taylor, International Organization in the Age of Globalization, p. 47.
Ibid., pp. 52-53.
Ibid., p. 52.
Held et al., Global Transformations, p. 455.
P. Taylor, International Organization in the Age of Globalization, p. 52.
Ibid., p. 52 and p. 213.
Ibid., p. 213.
Ibid., p. 54.

The Adriatic Sea Today: Unsolved Issues and Challenges

Wed, 22 Dec 2010 00:00:00 GMT

The Adriatic Sea has emerged as a marine area increasingly in the international focus, far beyond the confines of its natural and political boundaries. The end of the first decade of the 2000s may be a good occasion to review recent developments and challenges of the Adriatic Sea, many of which concern its specific sub-regional features.

1. The Adriatic Sea as a distinct marine sub-region

Formed as a narrow gulf deeply incised into the European mainland, the semi-enclosed Adriatic Sea has been a trade and transport route since antiquity. Due to its strategic position, the Adriatic Sea is now re-emerging as an arena of high geostrategic importance in the changing geopolitical picture of Eurasia. Although it is a part of the wider Mediterranean region, the Adriatic Sea – connected to the rest of the Mediterranean only by the Strait of Otranto – has its own specific features, and is for many reasons rightly considered a marine sub-region in its own right.

This is confirmed by both hydrographical and political definitions. As to the hydrographical definition of the Adriatic Sea as a sub-division of the eastern Mediterranean Sea basin, see the 1953 Limits of Oceans and Seas by the International Hydrographic Organization. Regarding legal and policy instruments, the 2008 EU Marine Strategy Framework Directive [1] identifies four marine regions where European marine waters extend, the Mediterranean Sea being one of those; furthermore, the Strategy sub-divides the Mediterranean, as a marine region, into four areas or sub-regions, with the Adriatic Sea as one such distinct marine sub-region.

2. Regional and sub-regional approaches in the Mediterranean

The distinction between regional and sub-regional approaches relates to the question of whether issues and options for responses are the same throughout the entire Mediterranean. Several examples can illustrate the need for distinct sub-regional approaches in the Adriatic Sea – always within the overall framework of general law of the sea and international law commitments undertaken.

For instance, as to commercial shipping, the Mediterranean (the sea where some 30 per cent of global maritime trade transits) is characterised by two major patterns: one is transit only, while the other involves calling at a port in some Mediterranean country. In the Adriatic Sea, due to its geography, there is no maritime through transit, so all commercial traffic there calls at some Adriatic port. An important share of that traffic (crude oil in particular) is then further transported on-land to mid-European countries, several of them land-locked. In such a situation, the reliance on port state jurisdiction on arrival may be of considerable importance – a feature that requires enhanced sub-regional cooperation and coordination.

This is further related to the need for coordinated proposals on the global level, such as in the International Maritime Organization (IMO). It is evident that some seas are in a rather special position as to ballast water management. Within the Mediterranean, the Adriatic Sea is a clear case, being too shallow and too narrow to be able to comply viably with the requirements of the Ballast Water Convention [2] for the designation of ballast water exchange zones.

Or we can take the example of sub-regional cooperation on initiatives such as the proclamation of a Particularly Sensitive Sea Area (PSSA). While it may be difficult to argue for, or to see usefulness of, PSSA as a management tool at the all-Mediterranean level, such a measure could be highly appropriate in more compact marine sub-regions.

The Adriatic Sea is a marine area where a combination of specific sub-regional measures and application of generally agreed-upon rules of the law of the sea could provide responses to many challenges of marine safety, environmental and resource management. However, in the course of the past decade it has become evident that such challenges persist, whereas the adoption of measures for dealing with them remains difficult in the current Adriatic Sea setting.

3. The Adriatic Sea: a ‘local’ picture

Prior to 1991, there were only three coastal states on the Adriatic Sea north of the Strait of Otranto: Albania, Italy and Yugoslavia.[3] Today there are six, as Bosnia and Herzegovina, Croatia, Montenegro and Slovenia emerged after the dissolution of the former Yugoslavia.

Whereas land borders between the former Yugoslav federal republics have been recognized as state borders, the territorial sea in Yugoslavia was never delimited between the various republics. Following the emergence of four new Adriatic coastal states, legally binding agreements to resolve the issues of maritime delimitation have not yet been achieved. The positions of some of those coasts are but one indication of the complex and generally troubled past of the region, where boundaries have been subject to the vagaries of history.

Delimitation of maritime zones of sovereign rights and jurisdiction between the countries on the eastern Adriatic Sea coast, on the one hand, and on the western coast (Italy), on the other, is largely pending – with the general exception of the continental shelf. This situation of pending maritime delimitation issues, some of which have emerged in the relatively recent past due to the emergence of new coastal states as well as a consequence of new maritime zones being proclaimed, is an important feature of the Adriatic Sea area today.

One other Adriatic Sea feature is better understood when the coastline lengths of individual countries are contrasted with their economic uses of the seas, such as maritime transport and fisheries. Natural features of the Adriatic Sea contribute to a rather peculiar situation in which the two opposite coastlines, eastern and western, are separated by a relatively narrow sea (in average 86 nautical miles in width). The total length of the entire Adriatic Sea coastline, including all islands, extends over some 8300 kilometres. However, some 7000 km of the coastline, or around 85 per cent, extends along the eastern Adriatic side. This is due to its geomorphology, characterised by a highly indented coastline and numerous islands, most of which form an archipelago that follows the general trend of the mainland coast. The length of the coastline of Croatia occupies by far the largest share: approximately 6200 km, or around 75 per cent of the entire Adriatic coastline. Italy’s Adriatic coastline, situated along the entire western coast, is significantly less indented, and has a total length of approximately 1300 km (some 15 per cent of the Adriatic coastline). The remaining part of the Adriatic coastline extends along the opposite, eastern, side and is shared between three non-EU countries: Albania (around 400 km of coastline), Montenegro (290 km), Bosnia and Herzegovina (20 km). The only other EU member state on the Adriatic Sea coast, Slovenia, has some 45 km of coastline, providing the remaining 0.5 per cent of the total length of the Adriatic coastline.

When it comes to maritime traffic and trade volume, however, the situation in many respects seems reversed, especially as regards the proportions for the eastern and western Adriatic coasts. By far the largest share of the maritime traffic and trade involves Italian ports, which annually receive around 75 to 80 per cent of the total commercial ship traffic and cargo transported. Croatia makes up around 10 per cent of the total Adriatic traffic, both in terms of number of vessels and amount of cargo, though with a tendency of growth. The remaining countries – Slovenia, Bosnia and Herzegovina (through the Croatian port of Ploče), Montenegro, and Albania – together make up the remaining 15 per cent of the traffic and 10 per cent of the cargo transported. Of their ports, the single Slovenian international commercial port of Koper stands out: it is larger than any other single port on the eastern Adriatic coast (except for the northeastern Italian port of Trieste).

The significance of this difference from the perspective of marine environmental protection and resource management can be illustrated in the context of ballast water issues. Three of the Adriatic countries – two EU members (Italy and Slovenia) and one candidate (Croatia) – all show profoundly different circumstances. Italy, with its maritime export, is the biggest generator of ballast water introduced into the Adriatic Sea, accounting for over three quarters of the annual total. Slovenia’s coastline is indeed a short one, yet this country is not a negligible contributor of ballast water, due to the maritime export volume from its single international port, Koper. Finally, Croatia has by far the longest coastline in the Adriatic Sea, yet is currently contributing far less ballast-water import, due to the still relatively low volumes of maritime export.

Also in some other economic aspects, such as fisheries, Adriatic proportions are diametrically reversed. Italy is clearly the biggest user of the Adriatic Sea; it has always been the undisputed fishing superpower there. While Italy has the dominant fishing fleet, most of the fishing grounds lie in waters closer to the Croatian island chain. The disproportion is especially obvious in bottom-trawl fishery, with the Croatian annual catch at around 5,000 tons, as against the Italian catch of some 50,000 tons. As to the other Adriatic Sea countries, their overall annual fish catches are very low.

4. The Adriatic Sea: a broader picture

On the western Adriatic coast there is a highly industrially developed country, Italy. The eastern coastal states there are mostly less industrially developed, but several developed mid-European countries (several of which are land-locked), gravitate naturally to the Adriatic Sea. Some of them are heavily dependent on that maritime route for their energy imports: Austria, for instance, receives 75 per cent of its oil imports through Adriatic ports, and Bavaria in southern Germany a full 100 per cent.

In the foreseeable future the Adriatic region may see major changes. As to future oil transport routes, several large-scale visions clash here when it comes to projections for the next decade.
Some of the projects conceived over the past decade, on exporting Russian and Caspian oil through the Mediterranean in order to (partly, at least) by-pass the Bosporus, include the prospects of various Adriatic ports and terminals. The eastern Adriatic coast, due to its placement and natural features, is central to several such energy transport plans and projects. It is blessed with several deepwater ports, especially along the Croatian coast – and thus also closer to central Europe.

Implementation of these plans and projects would, however, also result in an important change in tanker transport of oil in the Adriatic Sea: there would be a shift from exclusively crude oil import, as today, to include export as well, should the newly conceived projects materialise. That, in turn, could aggravate issues like those related to the problem of ballast water and the risks of introducing harmful aquatic organisms to the shallow, semi-enclosed Adriatic Sea. Conservation of Adriatic Sea living resources is of high importance for the coastal countries. Moreover, maritime safety considerations and the increase of related risks for the marine environment emerge as well. In addition, plans are underway for large LNG (liquefied natural gas) import terminals in the Adriatic Sea area, to help in diversifying central European gas imports and lessen the dependence on Russia; no such terminals are in place today.

The Croatian coast, due to its placement and natural features, is central in several such energy transport plans and projects. In addition to industrial interests, also the geopolitical interests of main players on the Eurasian scene – Russia, the USA and some key EU countries – are at stake here, and should be taken into account when explaining overall Adriatic Sea developments and their future projection.

5. Marine environmental and resource management concerns

Already today, however, there are serious reasons for concern. By the early 2000s, scientific and monitoring projects had documented the troubling effects and risks of current maritime uses of the Adriatic Sea – both shipping and fishing – on the state of its living resources and the marine environment.

As to maritime transport and shipping in general, the current levels of traffic in the Adriatic Sea, apart from accident risks, give rise to various concerns for the coastal states. Particularly important here are the impacts of operational oil discharges from large ships, mainly on international shipping routes that traverse the Adriatic. For the first time, the extent and frequency of that type of pollution in the Adriatic Sea have been confirmed by analyses performed in projects using special satellite technology (satellites equipped with Synthetic Aperture Radar, SAR) – such as, from the early 2000s onwards, those of the Sensors, Radar Technologies and Cybersecurity Unit, DG Joint Research Centre of the European Commission.[4] Analysis of images obtained has demonstrated the occurrence of greater spill concentrations along main maritime routes, proving that such operational oil spills from ships are underway on a large scale here – despite the Special Area status of the entire Mediterranean Sea, including the Adriatic, under MARPOL Annex I, whereby the discharge of oil and oily waste is prohibited.

Another major concern relates to marine living resources and their conservation and management. Due to its specific characteristics, the Adriatic Sea contains some of the highest fish-producing areas in the Mediterranean. This is especially the case in the northern Adriatic, as well as in several other localities along the Croatian coast. However, Adriatic fish stocks have been exposed to devastating fishing practices. From the commercial perspective, the most interesting species in the Adriatic Sea are demersal (benthic, bottom-dwelling) ones. The profitability and accessibility of demersal resources, due also to the wide and mostly shallow Adriatic Sea shelf, have contributed to their depletion. At the same time, the abundance of typical prey species has increased. Especially disturbing findings were revealed in 2000/2001, based on data comparison of two research survey cruises monitoring the state of demersal fish stocks over a span of 50 years: the results of the HVAR cruise in 1948 and those of the MEDITS cruise since 1998.[5] The comparison revealed major negative changes in the composition and distribution of demersal fish resources, clearly indicating their overexploitation. Some species, such as rays, have been especially affected by the intensity of trawl fishery and were disappearing; moreover, various indicators of the poor state of, in particular, demersal Adriatic fish stocks have been documented. Exploitation pressure has not been proportional to the productivity of many important species and stocks, resulting in a key problem for the sustainability of the Adriatic Sea fisheries.

Despite serious concerns for the sustainability of Adriatic Sea fisheries as well as frequent incidents of illegal oil spills from vessels, most of the Adriatic Sea remained under the legal status of the high seas until recently.

6. Extending sovereign rights and jurisdiction: a recent Adriatic Sea development

A key measure under international law, as codified by the United Nations Convention on the Law of the Sea, [6] is the Exclusive Economic Zone (EEZ). However, although such maritime zones have been introduced in most of the world’s seas, none of the Adriatic Sea coastal states had proclaimed an EEZ (or a maritime zone based on it) prior to 2003. In October 2003, Croatia was first to declare an ‘Environmental and Fisheries Protection Zone’ in the Adriatic Sea, based on the EEZ regime.[7] However, criticism was forthcoming from neighbouring EU member states, Italy and Slovenia, channelled also through various EU bodies, including the European Commission. This carried significant weight politically, since Croatia has been an applicant, and thereafter a candidate for EU membership – and the issue of the proclaimed Zone has gradually been placed in the context of the progress in Croatia’s EU accession process. Eventually, after several revisions of the initial decision, Croatia was, as of March 2008, persuaded to discontinue application of the Zone to the EU countries, until a solution ‘in the EU spirit’ could be found.[8] Maritime delimitation issues and claims by Italy and Slovenia figured prominently on that agenda.

In October 2005 and January 2006, through its internal legislation Slovenia unilaterally proclaimed a maritime zone of sovereign rights and jurisdiction in the Adriatic Sea.[9] Although labelled as an ‘ecological’ zone, this is rather a political claim, and not a marine environmental or resource management measure based on international law. The proclaimed zone extends in parallel to the Croatian coast of western Istrian peninsula. Also the continental shelf that Slovenia claims to have in that area is not a natural prolongation of its own land territory, but rather of the land territory of Croatia in front of its western Istrian coast. So far, there have been no official or public reactions from other EU member states or any EU body to Slovenia’s evidently excessive maritime claim, although that claim is clearly in violation of the Law of the Sea Convention. No state except Croatia has publicly protested. The Slovenian ‘ecological zone’, while a paper tiger only, remains formally in effect under its national legislation.

In February 2006, Italy adopted a law on the establishment of an ‘ecological protection zone’. [10] Within the zone, Italy is to exercise its jurisdiction in the area of protection and conservation of the marine environment, including the archaeological and historic heritage. The Law, however, does not apply to fishing activities. Moreover, the Law only authorizes the establishment of an ecological protection zone, pending a decree of the President of Republic. This is related to achieving delimitation agreements with the ‘states involved’, i.e., those whose territory is adjacent to or facing Italian territory.

In effect, and as the result so far, status quo has been maintained regarding coastal state jurisdiction in the Adriatic Sea. No progress was made regarding management and conservation measures for the heavily depleted Adriatic fish stocks. Quite the contrary, the same harmful fishing practices continued without any legal possibility of control by the coastal state. Due to political considerations, advances in measures to combat marine pollution were also limited – even though frequent incidents of illegal oil spills had been proven by research projects conducted under the auspices of the European Commission itself.

In addition to the right of any coastal state that can lawfully proclaim an EEZ to apply that regime in accordance with the Law of the Sea Convention, some core principles of the law of the sea have been under testing in the Adriatic Sea. Most importantly, that includes the basic axiom that the land dominates the sea in determining maritime areas under sovereignty and the sovereign rights of coastal states.

The need to conserve the marine resources and prevent environmental degradation of the Adriatic Sea speaks strongly in favour of the adoption and implementation of all measures available, including an EEZ. There is, however, no more than international law to support this line of action. Powerful economic and political interests, both on the Adriatic regional and the broader Eurasian strategic level, seem to favour maintaining status quo in the overall picture of Adriatic Sea jurisdiction.

7. Pending joint initiatives: the example of an Adriatic Sea PSSA

Due to its special features and the slow exchange of water with the rest of the Mediterranean through the Strait of Otranto, the Adriatic is a particularly sensitive sea, highly vulnerable to marine pollution. PSSA, as a concept of balancing the apparently local and regional/sub-regional environmental protection interests with the global interests of international shipping and industry may prove to be a feasible and useful avenue for the Adriatic Sea.

When seen in relation to the emerging context of regionalisation of the ‘European seas’, which seems an important underlying element of the new EU Marine Strategy Directive, the relevance of an Adriatic Sea PSSA is further enhanced. While the Marine Strategy is directly applicable only to the EU member states and marine waters covered by their sovereignty or jurisdiction, member states are required within each marine region or sub-region to make every effort to coordinate their actions with third countries. An ability to cooperate on a PSSA may prove a key test-case for the Adriatic countries – EU members, candidates, or aspirants alike – towards meaningful implementation of an otherwise broad EU Marine Strategy, on a specific and needed goal of Adriatic marine environment protection and sustainable development. An Adriatic PSSA could be an important first step in that direction.

So far, however, the matter remains pending. In the spring of 2006, Croatia invited the other Adriatic coastal states to cooperate towards a proposal for an Adriatic Sea PSSA to be submitted to the IMO, and has distributed a draft study for the Adriatic Sea PSSA, prepared with the assistance of the Fridtjof Nansen Institute in Oslo in cooperation with several Croatian scientific institutions. A Joint Expert Group, with the participation of Albania, Bosnia and Herzegovina, Croatia, Italy, Montenegro and Slovenia, has been formed and several meetings have been held. The Group made good progress at its first three meetings in 2006 and 2007; since then, however, it seems as a stalemate on some issues has hampered the conclusion of the work and submission of the Adriatic Sea PSSA proposal to the IMO.

8. The Adriatic Sea dilemma: a persistent challenge

There exist great regional imbalances, even diametrically opposed situations, among the coastal states – as illustrated by the share, position and various features of coastline of Adriatic Sea countries, on the one hand, and the extent of their maritime uses of the Adriatic Sea, on the other. As a result, while some overall interests in the Adriatic Sea remain shared, other, more specific ones, are poles apart.

Moreover, the pressing need for sound environmental protection and improved resource management and conservation in the Adriatic Sea remains hampered by a plethora of delimitation disputes and emerging maritime boundary issues. That is of little help to the Adriatic Sea states currently facing major challenges as to the sustainability of marine resources – and where possible impacts by the expansion of international shipping and fishing in one specific Adriatic area may spill over to another, potentially affecting the entire region.

All the Adriatic Sea countries share one important, lasting feature: they are all coastal states here, with a multitude of important activities and considerations. Various measures will need to be put in place, to enable sustainable resource utilization and rational management, and durable marine environmental protection in the Adriatic Sea.

The Adriatic Sea region will inevitably need to be oriented towards cooperation in approaches to matters of joint concern, such as marine environmental protection and resource conservation and management – yet where all the participants can retain certain profoundly different features as their dominant. In that situation, to strike the right balance between the national regulation sphere, which can take into account each country’s peculiarities and rights under international law, on the one hand, and regional/sub-regional cooperation based on commonality, on the other, is likely to remain the key challenge for the Adriatic countries in the next decade. In responding to that challenge, the Adriatic countries should remain within the framework of general rules of international law and global agreements to which they are parties, in order both to facilitate long-term stability in mutual relations and to arrive at solutions acceptable to third states.

Acknowledgment: Information included in this text draws on previous studies by the author, to which readers interested in further discussion are referred, in particular, as to the proclamation of Adriatic Sea maritime zones and certain delimitation issues: Davor Vidas, ‘The UN Convention on the Law of the Sea, the European Union and the Rule of Law: What is Going on in the Adriatic Sea?’, International Journal of Marine and Coastal Law, Vol. 24, No. 1, 2009, pp. 1–66; and, regarding the PSSA initiative in the Adriatic Sea: Davor Vidas, ‘Particularly Sensitive Sea Areas: The Need for Regional Cooperation in the Adriatic Sea’, in Katarina Ott (ed.), Croatian Accession to the European Union: The Challenges of Participation (Zagreb, Institute of Public Finance/Friedrich Ebert Stiftung, 2006), pp. 347–380.

Endnotes

Directive 2008/56/EC of the European Parliament and of the Council, of 17 June 2008, establishing a framework for community action in the field of marine environmental policy, Official Journal of the European Union, L 164, 25 June 2008, p. 19.
International Convention for the Control and Management of Ships' Ballast Water and Sediments, 2004. IMO doc. BWM/CONF/36.
Another Mediterranean EU country, Greece, is partly oriented on the broader Adriatic-Ionian Sea area, with its coasts and islands close to the Otranto.
See especially: European Commission, DG Joint Research Centre, Atlante dell’inquinamento da idrocarburi nel mare Adriatico (Luxembourg, European Communities, 2005), p. 10. According to that report, 257 oil spills from ships were detected in the Adriatic Sea (area north of latitude 39° N) in 1999; 263 spills in 2000; 184 in 2001; and 244 spills in 2002. A special campaign for the Adriatic Sea during only two-and-a-half summer months in 2004 (16 July–30 September) revealed 77 possible oil spills there; see ibid., pp. 9–10 and 49–53.
See S. Jukić-Peladić, N. Vrgoč, S. Krstulović-Sifner, C. Piccinetti, G. Piccinetti-Manfrin, G. Marano and N. Ungaro, ‘Long-term changes in demersal resources of the Adriatic Sea: comparison between two trawl surveys carried out in 1948 and 1998’, Fisheries Research, Vol. 53, No. 1, 2001, pp. 95–104.
The United Nations Convention on the Law of the Sea, UN doc. A/CONF.62/122, text in United Nations Treaty Series, Vol. 1833, p. 3.
Decision on the Extension of Jurisdiction of the Republic of Croatia in the Adriatic Sea, adopted by the Croatian Parliament, Sabor, on 3 October 2003 and, published in Narodne novine (Official Gazette), No. 157, of 6 October 2003; English translation in Law of the Sea Bulletin, No. 53, 2004, pp. 68–69.
Decision on Modifying the Decision on the Extension of the Jurisdiction of the Republic of Croatia in the Adriatic Sea, adopted by the Croatian Parliament on 13 March 2008 and published in Narodne Novine (Official Gazette), No. 31, 2008.
Act on the Proclamation of the Ecological Protection Zone and on the Continental Shelf, adopted by the Slovenian Parliament, Državni zbor, on 4 October 2005 and published in Uradni list (Official Gazette), No. 93, 2005. English translation in Law of the Sea Bulletin, No. 60, 2006, pp. 56–57; that translation, however, does not contain the word ‘proclamation’ in the title of the Act, which is otherwise contained in the title of the Act in its original Slovenian-language version: ‘Zakon o razglasitvi’ (Act on the Proclamation). See also the Decree on the Determination of the Fisheries Sea Area, passed by the Government of Slovenia on 5 January 2006, and published in Uradni list (Official Gazette), No. 2, 2006.
Law 61 on the Establishment of an Ecological Protection Zone Beyond the Outer Limit of the Territorial Sea, adopted on 8 February 2006 and published in Gazzetta Ufficiale della Republica Italiana (Official Gazette of the Italian Republic), No. 52, of 3 March 2006; English translation as provided by Italy in Law of the Sea Bulletin, No. 61, 2006, p. 98.

Current Issues on Mediterranean Environmental Governance

Tue, 21 Dec 2010 00:00:00 GMT

1. Governance, what Governance?

In recent times governance has become a matter of increasing interest in Mediterranean affairs particularly with respect to the protection and preservation of the marine and coastal environment. Although the concept of governance may have different meanings within different contexts, we will focus here on ways and means for improving the existing prescriptive and enforcement mechanisms for environmental protection of the Mediterranean Sea. As we will see in the following pages Mediterranean environmental governance faces several structural problems that need to be addressed and solved.


2. Jurisdictional Zones and the EEZ dilemma

The first problem arising with respect to Mediterranean governance relates to the fragmentation and lack of uniformity of the coastal zones of the riparian States and the persistence of a corresponding “EEZ dilemma”. While international law allows States to establish jurisdictional zones beyond their territorial sea, traditionally Mediterranean coastal states have restricted themselves to do so in order to avoid the inescapable overlapping of such zones and the resulting conflicts of delimitation. In particular, Mediterranean coastal States have shown over the years a persistent unwillingness to establish exclusive economic zones, a fact that has been described as “EEZ-phobia” [1].

The resulting situation is that, for many activities at sea, coastal States’ prescriptive and enforcement powers are limited to their internal waters and territorial sea (up to a maximum of 12 nautical miles) and, for the specific purposes stated in Article 33 of UNCLOS, to its contiguous zone or archaeological zone (up to 24 nautical miles).[2] As a consequence, today around fifty per cent of the Mediterranean waters still belong to the high seas and can be used by all States, including extra Mediterranean States, for different purposes in the exercise of their “freedom of the high seas”. This jurisdictional lacuna has an important bearing on the effective governance over activities at sea, including protection of the marine environment, sustainable exploitation of living resources, exploration and exploitation of nonliving marine resources, energy, including alternative energy development, prevention of illegal activities at sea, and protection of underwater cultural heritage. In contrast, all the Mediterranean sea-bed and sub-soil falls under the regime of the continental shelf and it is therefore subject to the sovereignty of the corresponding coastal State. But the generalized lack of agreed delimitations of the continental shelf between neighbouring States often make difficult the effective regulation and enforcement of the activities in bordering areas.[3]

In recent years, a number of Mediterranean coastal States have declared either full-fledged Exclusive Economic Zones (Morocco, Egypt, Syria, Cyprus, Tunisia and Libya) or other zones of a more limited scope, such as fishing protection zones (Tunisia, Malta, Algeria, Spain, and Libya), ecological zones (France, Slovenia, and Italy) or a combination of fishing and ecological zones (Croatia). This creates a new scenario in which various Mediterranean coastal States, for the specific purposes stated in their laws, have expanded its prescriptive and enforcement powers to larger areas of the sea. However, the current unilateral expansion of coastal States jurisdictional zones in an uncoordinated manner, while not fully skipping the problems of overlapping and conflicting boundaries, often remain purely nominal since they are not implemented through national laws and regulations (like in the case of Italy). In order to overcome this situation, often described as a “Harlekin’s coat” or “jigsaw puzzle” of poorly defined zones, several specialized voices advocate for a generalized and coordinated action towards the establishment of EEZ by all the Mediterranean coastal States, as a potential legal tool for bringing appropriate solutions to the complex matters involved with Mediterranean governance.

3. A Fragmented Institutional Framework

Environmental governance of the Mediterranean Sea is also confronted with institutional problems arising from the coexistence of various international organizations and conventional systems operating in the same geographical area: mainly, the European Union, the Union for the Mediterranean, and the UNEP/MAP Barcelona Convention System. Other global and regional environmental Conventions also apply to the Mediterranean.

The European Union plays an important role in Mediterranean governance due to its position and political influence in the region. Seven riparian States of the Mediterranean are members of the European Union (namely: Cyprus, France, Greece, Italy, Malta, Slovenia and Spain) whereas the other fifteen coastal States are not. This demarcation line makes a dramatic distinction between the northern developed riparian countries and the southern and far-eastern developing ones, all having common but differentiated responsibilities with respect to environmental protection and sustainable development. On the other hand, it must be noticed that the very strong normative, judicial and enforcement powers of the EU in implementing its environmental policies in the Mediterranean can only be exercised with respect to its Member States.

In the framework of its environmental policy, the EU has enacted a large number of regulations and directives applicable to the coastal waters of its Member States concerning matters, such as the quality of bathing waters, urban waste water treatment, quality of shell-fishing waters and ship source pollution and environmental liability. In the light of its thematic strategy for the protection and conservation of the marine environment, the European Commission has prepared a communication establishing an Environmental Strategy for the Mediterranean [4], to work in combination with a new European Neighbourhood Policy (ENP) and the reworked Euro-Mediterranean partnership. The specific aims of the Mediterranean strategy are to establish enforceable environmental policies, integrated into other sectors, such as transport or energy; to measure the reduction in pollution levels across the region (especially industrial emissions, municipal waste and urban waste water); to promote sustainable and ecological use of the sea and coastal areas; to encourage neighbouring countries to cooperate on environmental issues (through, for example, integrated coastal zone management schemes); to assist partner countries in developing effective institutions and policies to protect the environment; and involve NGOs and the public in environmental decisions affecting them. The EU has promoted other important initiatives in the framework of the “Barcelona Process: the Union for the Mediterranean”, established at the Paris Summit for the Mediterranean in July 2008.[5] The re-launched partnership now includes all 27 member states of the European Union along with 16 partners across the Southern Mediterranean and the Middle East.[6] The Union for the Mediterranean has identified six priority projects, including some of environmental significance, such as the de-pollution of the Mediterranean Sea, the establishment of maritime highways, and a Mediterranean solar energy plan.

However, the central instrument for Mediterranean environmental governance is the UNEP/Mediterranean Action Plan (MAP). The legal component of the system is nowadays formed by the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean, as amended in Barcelona on 10 June 1995, and its seven implementing Protocols. Besides the Secretariat and the Co-ordinating Unit, based in Athens, MAP has 8 specialized regional programs and activity centres and has established, in 1996, the Mediterranean Commission on Sustainable Development (MCSS), composed by representatives of the parties, local authorities, the business community and NGOs, as an advisory body.

The amended Convention and four Protocols are currently in force, namely: the amended 1995 “SPA and Biodiversity Protocol”, the amended 1995 “LBS Protocol”, the new 1996 “Hazardous Wastes Protocol” and the new 2002 “Prevention and Emergency Protocol”. In contrast, three Protocols are not yet in force: the amended 1995 “Dumping Protocol”, the new 1994 “Offshore Protocol”, and the new 1998 “ICZM Protocol”. The difficult issue of environmental liability has been tackled through a soft law instrument adopted in 2008: the Mediterranean Guidelines for the Determination of Environmental Liability and Compensation.[7] The Barcelona Convention applies to the area described in its Article 1, which includes all “maritime waters of the Mediterranean Sea”, whereas any Protocol may extend the geographical coverage to which it applies. This means that the Convention and its Protocols might apply, as appropriate, to activities taking place not only in zones under the sovereignty or jurisdiction of the Mediterranean coastal States but also in the high seas. The example of the SPA and Biodiversity Protocol, allowing for the establishment of specially protected areas of Mediterranean importance (SPAMIs) located partly or fully in the high seas is a pertinent demonstration of it.

A number of environmental treaties concluded at the global level and several treaties of regional and sub-regional scope apply also to the Mediterranean; namely, the Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS, Monaco 24 November 1996), and the Agreement between France, Italy and Monaco on the protection of the waters of the Mediterranean shore in the Ligurian Sea (the RAMOGE agreement, Monaco 10 May 1976, amended in 2003). On 25 November 1999, France, Italy and Monaco signed in Rome an Agreement on the Creation in the Mediterranean Sea of a Sanctuary for Marine Mammals (the Pelagos Sanctuary), covering an area of 96.000 Km2 which includes large parts of high sea waters.

This set of global and regional instruments operating in the Mediterranean is not sufficiently coordinated in order to achieve good marine governance. In particular, the respective roles of the EU, the Union for the Mediterranean, and the Barcelona Convention System need further clarification and refinement. The existing situation looks like a kaleidoscope of institutional bodies and conventional instruments, creating a patchwork of legal regimes and, as a result, an important gap in governance.

4. Increasing activities and new environmental risks

All qualified observers of the Mediterranean current situation underline its exposure to extensive (and often excessive) uses and the consequential risks for its resources, biodiversity and environmental status.

Among the problems identified as requiring renewed attention, the first relates to exploration and exploitation of mineral marine resources and energy, including alternative energy development. A pioneering Mediterranean Protocol for controlling pollution from off-shore exploration and exploitation of mineral resources was signed on 14 October 1994 in Madrid. However, most regrettably the Offshore Protocol has been ratified, or acceded to, by only four Contracting parties and two more instruments of ratification are still pending for its entry into force. The recent BP Deepwater Horizon drilling accident in the Gulf of Mexico has dramatically shown the devastating impact that a similar event could have in the Mediterranean thus evidencing the urgent need to revitalize the dormant off-shore Protocol [8]. In that respect, the IUCN Mediterranean Sea Experts Group Meeting in Procida (Naples) on October 2010 has recommended all interested parties and stakeholders to work towards the entry into force of the Protocol. Other issues related to alternative energy development, such as exploitation of energy from currents, waves and winds also deserve particular attention and hopefully appropriate regulatory instruments. The establishment of “highways of the sea” or of a network of underwater pipelines for energy transportation could be dealt in a more or less near future within the framework of Mediterranean spatial planning procedures.

Another aspect of increasing concern is the impact of climate change on Mediterranean waters and coasts and the need to identify means of adaptation and mitigation. At their 2009 Meeting, the Parties to the Barcelona Convention adopted the Marrakesh Declaration which aims at promoting a better regional environmental governance, especially to meet the future challenges of climate change.[9] Closely related to the core problem of climatic change are other issues of growing Mediterranean importance such as CO2 sequestration in sub-seabed repositories and ocean fertilization. Also related to climatic change is the broader issue of natural disasters and the potential growing number of environmental displaced persons affected by them.[10]

In the field of marine biodiversity and specially protected areas new elements of major ecological importance for the Mediterranean have been identified as requiring special consideration and protective instruments, specially thermal fronts, sea mountains and canyons.[11] As regards the emerging environmental issue of preservation of marine genetic resources, which is still being discussed at international fora, negotiations at the regional level seem, for the time being, unlikely to produce concrete results. However, protection of the little known genetic resources of the Mediterranean seabed could need urgent action through a moratorium on bio-prospecting activities or other regulatory measures.

Last but not least, environmental marine scientific research should be the object of further promotion and cooperation.[12]

5. Concluding remarks

A recent study has rightly put forward that “if a gap can be noticed in the Mediterranean, it relates more to governance than to regulation”.[13] According to its authors, prospects for enhancing international co-operation in the Mediterranean are likely to increase not only if more ratifications to the relevant treaties are deposited but, especially, if consistency could be ensured among the coastal zones established by Mediterranean States and if the present governance gap could be addressed through some international mechanism.

To that end, Mediterranean governance could be developed in an informal way, similar to what has already been done at the world level with the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea (UNCIPOLOS), without the creation of new institutions, as those already existing seem sufficient for present and future actions. The concept of a Mediterranean informal consultation process has already been voiced in a resolution adopted in October 2008 by the Congress of IUCN on “Improving the Governance of the Mediterranean Sea”, and is currently under further study. The suggested Forum for Governance of the Mediterranean Basin should be based on tools, such as the ecosystem approach and marine spatial planning, and its discussions should be held on a trans-sectoral basis and be action-oriented. At the inter-institutional level, one of the aims of the Forum would be to consider how to avoid duplication of action carried out by different international institutions, how to optimize the use of the limited resources available and how to co-ordinate the work carried out in different contexts. The Forum should be open to all the stakeholders, namely States, State entities, including local authorities, international organizations active in the region and non-governmental organizations coming from the civil society and the economic sector.

* This “Inshight” has been elaborated in the framework of the research project “Derecho del mar y sostenibilidad ambiental, con especial referencia al Mediterráneo” (DER2009-13960), funded by the Ministry of Science and Innovation of Spain.

Endnotes

SCOVAZZI, T. “The Mediterranean and Black Sea Maritime Boundaries”, in Charney-Colson-Smith, International Maritime Boundaries, American Society of International Law, Martinus Nijhoff Publishers, 2005, pp. 3483, 3485.
Most of the Mediterranean coastal States have established territorial seas of the maximum limit of 12 nautical miles, except Greece and Turkey that have limited its extension to 6 miles (Turkey only in the Aegean Sea). Certain Mediterranean states have enacted legislation proclaiming a contiguous zone, adjacent to their territorial sea, for the enforcement of customs, fiscal, immigration or sanitary laws and regulations: Algeria, Cyprus, Egypt, France, Malta, Morocco, Spain and Syria. In the last few years, some States (Algeria, Cyprus, France, Italy and Tunisia) have also established a contiguous archaeological zone adjacent to their territorial seas for the protection of underwater cultural heritage.
See: PAPANICOLOPULU, I. “A Note on Maritime Delimitation in a Multizonal Context: The Case of the Mediterranean”, 38 Ocean Development & International Law, 2007, pp. 381-398.
COM(2006) 475 final, 5,9,2006. See also: “Towards an Integrated Maritime Policy for better Governance of the Mediterranean” COM(2009) 466 final, 11,9,2009.
The UFM intends to maintain the acquis of its predecessor, formerly known as the Barcelona Process, while infusing a new vitality into the Mediterranean Partnership and raising the political level of the strategic relationship between the EU and its southern neighbors. See: BIRAMBAUX, I. “The Union for the Mediterranean: Beyond the Barcelona Process?” OPEX –Observatorio de Política Exterior Española. (http//:www.falternativas.org)
Albania, Algeria, Bosnia & Herzegovinia, Croatia, Egypt, Israel, Jordan, Lebanon, Libya, Mauritania, Monaco, Montenegro, Morocco, Occupied Palestinian Territories, Syria, Tunisia and Turkey.
At their 15th Meeting, held in January 2008 in Almeria (Spain), the Contracting Parties to the Barcelona Convention adopted Decision IG.17/4 on “Guidelines for the Determination of Liability and Compensation for Damage resulting from Pollution of the Marine Environment in the Mediterranean Sea Area”. See: SCOVAZZI, T. “The Mediterranean Guidelines for the Determination of Environmental Liability and Compensation : the Negotiations for the Instrument and the Question of Damage that Can Be Compensated”, Max Planck Yearbook of United Nations Law, 2009, volume 13, p. 183-211
See: RAFTOPOULOS, E. “Sustainable Governance of Offshore Oil and Gas Development in the Mediterranean: Revitalizing the Dormant Mediterranean Offshore Protocol”, MEPIELAN E-Bulletin, 19, August, 2010 (http://www.mepielan-ebulletin.gr) .
UNEP(DEPI)/MED IG.19/8, 24 November 2009. The Parties declared “themselves concerned by the serious threats to the environment that are confronting the Mediterranean, including the destruction of its biodiversity, adverse effects on the countryside, coastline and water resources, soil degradation, desertification, coastal erosion, eutrophication, pollution from land-based sources, negative impacts related to the growth of maritime traffic, the over-exploitation of natural resources, the harmful proliferation of algae or other organisms, and the unsustainable exploitation of marine resources”.
See: Draft Convention on the International Status of Environmentally Displaced Persons, elaborated by CRIDEAU and other research institutions of the University of Limoges, Revue Européenne de Droit de l’environnement, vol. 4, décembre 2008, p. 375.
The IUCN Mediterranean Sea Experts Group has adopted several recommendations on the matter at its meetings of Istanbul (January 2010) and Procida (October 2010)
According to the Commission of the European Union, the major research topics requiring a cross-thematic approach are “climate change and the oceans”, “impact of human activities on coastal and marine ecosystems and their management”, “ecosystem approach to resource management and spatial planning”, “marine biodiversity and biotechnology”, “continental margin and deep sea”, “operational oceanography and marine technology” and “exploitation of marine renewable energy resources”. A European Strategy for Marine and Maritime Research – A Coherent European Research Area Framework in Support of Sustainable Use of Oceans and Seas, doc. COM(2008) 534 final of 3 September 2008, p. 9).
EUROPEAN COMMISSION – EUROPEAID COOPERATION OFFICE, “Study of the Current Status of Ratification, Implementation and Compliance with Maritime Agreements and Conventions Applicable to the Mediterranean Sea Basin” With a specific focus on the ENPI South Partner Countries, December 2009. (Authors: SCOVAZZI, T. and SLIM, H).

A Second Italian Case on Cultural Properties Enmeshed in Fishing Nets

Fri, 20 Aug 2010 00:00:00 GMT

1. Introduction

To fortuitously fish cultural properties lying on the continental shelf is an event not likely to occur frequently, even in waters particularly rich in underwater cultural heritage, as those of the Mediterranean Sea[1]. Only twice in the last fifty years cases relating to such a prodigious fishing have been brought before Italian courts. Both instances deserve to be recalled for their peculiarities and for the general questions that they involve.

2. The Melqart of Sciacca

In January 1955, a 38 cm high bronze statue accidentally became entangled in nets being dragged by the Angelina Madre, a fishing vessel flying the Italian flag. The recovery of the artefact occurred on the Italian continental shelf, at about 20 n.m. from the Italian coast south of the island of Sicily.

At first, the statue was not attributed importance. Without dissent of any sort, it was taken by one of the sailors, Mr. Santo Vitale, to his home in the city of Sciacca. It was then displayed for some months in a small grocery shop managed by Mr. Calogero Vitale, father of the sailor. It was later sold to a neighbour, Mr. Giovanni Tovagliari, or perhaps (the point has never been clarified) bartered for some flasks of wine. Mr. Tovagliari was the first to wonder whether the statue might be of historical importance and submitted it for examination to Mr. Stefano Chiappisi, an expert in history. Mr. Chiappisi’s research ascertained that the statue was a very rare historical relic of the Phoenician civilization (9th to 11th century B.C.), representing a deity that was probably Melqart, the god of the sea. It was similar, but perhaps more precious because of its greater height, to the only two other examples in existence in the world: the Adad, or Ba-Al, of Minet el Beida, found in Syria and now exposed in the Louvre in Paris; and the Addad of Pelizeus, or Resef, preserved in the museum of Hildesheim, Germany.

Learning of the fortunate finding, the Superintendent of Antiquities of the Province of Agrigento requested that the Melqart of Sciacca (as the statue came to be called) be handed over to him, as the property of the State. Under Italian legislation[2], all objects belonging to the cultural heritage which are fortuitously found belong to the State, while the finder is entitled only to a reward. But Mr. Tovagliari, to ensure the Melqart for the city’s cultural heritage, donated it to the Municipality of Sciacca. The Municipality entrusted the Melqart to a respected clergymen, Mgr. Aurelio Cassar, who jealously cared for the statue in the historical section of the municipality’s library. As his request had not been satisfied, the Superintendent brought a case before the Tribunal of Sciacca.

At this point, Mr. Michele Scaglione, the owner of the Angelina Madre, intervened in the matter. He maintained that the sphere of application of the Italian legislation on the cultural heritage was limited to the Italian territory and territorial sea (which was, at that time, 6 n.m. in breadth). He asked that the Melqart be declared his property, as a res nullius having been found by his vessel on the high seas.

The subsequent litigation to determine the ownership of the statue involved, on opposing sides, the State, the Municipality of Sciacca, Mr. Scaglione and the heirs of Mr. Tovagliari (the latter maintaining that Mr. Tovagliari, who in the meantime had died, had not donated the Melqart to the Municipality but had only entrusted it for safekeeping). The case was settled on 9 January 1963[3] by an interesting, albeit questionable, decision whereby the Tribunal of Sciacca found that the Melqart belonged to the State.

The Tribunal held that a ship flying the Italian flag is to be considered as a prolongation of the Italian territory. In their turn, the nets of a fishing vessel flying the Italian flag are a prolongation of the vessel and, consequently, a prolongation of the prolongation of the Italian territory. This meant that the Melqart was to be treated as if it had been found in the Italian territory with the consequent application of the Italian legislation which granted to the State the ownership of all the cultural heritage fortuitously found.

Taking into consideration the public interest in protecting the cultural heritage for historical research and exhibition to the public, the practical result obtained by the decision can be appreciated[4]. In facing a case for which no precedents were available, the Tribunal avoided the application of a first-come-first-served or freedom-of-fishing approach which would have only served the personal interests of a private subject.

However, looking at the general aspects of the matter, the application of the flag State law, as decided by the Tribunal, can hardly be subscribed. For instance, if the Melqart had been recovered by the nets (or whatever other machinery) of an American vessel, the United States legislation would have become applicable. The United States courts apply the so-called admiralty law, including the law of salvage and the law of finds, to ancient sunken ships and to objects found at sea. The law of salvage, which appears to be applicable when the owner of the wreck is known, gives the salvor a lien (or right in rem) over the object. The law of finds, which becomes applicable when the owner of the wreck or the removed objects is not known, means that “a person who discovers a shipwreck in navigable waters that has been long lost and abandoned and who reduces the property to actual or constructive possession becomes the property's owner”[5]. This kind of legislation opens the way for the destination of the cultural properties in question to purposes of commercial gain and is an incentive to activities by treasure hunters.

3. The Victorious Athlete

By two decisions taken respectively on 12 June 2009, as regards the question of jurisdiction, and on 10 February 2010, as regards the merits, the Tribunal of Pesaro ordered the confiscation of a bronze statue of a victorious athlete, attributed to the Greek sculptor Lysippos (born about 370 BC). In August 1964 the statue had been found enmeshed in the nets of the vessel Ferruccio Ferri, flying the Italian flag and fishing in an area of high seas in the Adriatic Sea. It was introduced in Italy and kept for a certain time hidden in the cities of Fano and Gubbio. It was then exported in breach of the Italian legislation on cultural properties and moved to various localities (to Munich, to London, perhaps to Brazil and, after having entered in 1977 the United States, to Boston and to Denver). Finally it was bought by the J. Paul Getty Museum of Los Angeles, where it is now exhibited. It seems that the American museum paid the price of 3,950,000 US$ to acquire the statue from a corporation having the nationality of Luxembourg that purported to be the owner of it.

Four judgments have been taken in the past by the Tribunal and the Court of Appeal of Perugia, the Court of Cassation and the Court of Appeal of Rome to deal with criminal actions brought by the prosecutor against people accused of crimes connected with the movements of the statue. The last of these decisions, taken in 1970, acquitted the accused due to the lack of evidence that the object had been found in the Italian territory. This is why the most recent proceedings before the Tribunal of Pesaro were confined to the only question of the confiscation of the statue.

The two decisions by the Tribunal make a thorough analysis that cannot be reviewed hereunder as to the applicable rules of Italian criminal law and the judicial precedents on confiscation. The Tribunal moves from the assumption that the confiscation of certain categories of things is compulsory and does not necessarily depend on the conviction of those who have been accused of a crime. As regards the existence of the Italian jurisdiction, the Tribunal concludes that the statue had been very likely found in an area of “non territorial waters”, as it could be inferred from the statements made by the fishermen concerned, the analysis of the incrustations of molluscs broken off the statue[6] and the study of the morphology of the seabed.

Making use of the precedent established by the decision on the Melqart of Sciacca[7], the Tribunal confirms that Italian law applies to objects found on the high seas by a ship flying the Italian flag. This entails the consequence that, as provided for by Italian law, the statue became the property of the State since the moment when it was found. The same conclusion can by reached considering that the object was subsequently introduced into the Italian territory and that Italian law provides for a right of preemption by the State in case of transfer of ownership of cultural properties or in case of export of cultural properties located in the national territory. This right could not have been exercised by the State due to the clandestine nature of all the passages in which the statue was involved.

According to the Tribunal, the special provisions of Italian law on the inalienable character of properties belonging to the public demesne have priority over the general provisions of the civil code on the rights of the good faith buyer (Art. 1153) and acquisitive prescription (Art. 1161). This conclusion confirms several precedent decisions taken by Italian courts in cases of confiscation of cultural properties stolen or illegally excavated.

The Tribunal subsequently deals with the simple, but thought-provoking question of explaining why an order of confiscation could be issued as regards an object which was already the property of the State. The response is that, being the statue located abroad, the right of ownership could not be exercised by Italy through measures of self-protection and there was a need to adopt a formal deed to be transmitted to foreign authorities for recognition.

Addressing the rule that properties cannot be confiscated if they belong to a person not involved in the crime, the Tribunal concludes on the basis of a detailed analysis of the relevant facts that the managers of the J. Paul Getty Museum had been at least grossly negligent in buying the statue, if they had not been fully aware of its illicit origin. They had acquired a work of inestimable value without making any serious control on the legality of its provenance and without having asked to check the title under which the seller had the possession of it. They had relied only on a legal advice given by the lawyers of the seller who had an evident interest in concluding the sale, without taking the care to ask the Italian authorities about the legality of the export of a work which had been the subject of a criminal proceeding before Italian courts. The Tribunal adds that the museum in question is an institution particularly competent and qualified from which a higher degree of diligence has to be expected.

It remains to be seen whether the order of confiscation issued by the Tribunal of Pesaro will be executed by the American authorities.

4. The Merits of the 2001 UNESCO Convention

Most of the questions relating to the protection of the underwater cultural heritage in the Mediterranean Sea, including the problems posed by the “fishing” of cultural objects, could be addressed and solved if the Convention on the Protection of the Underwater Cultural Heritage[8], negotiated within the framework of UNESCO and signed on 6 November 2001 in Paris[9], were applicable among all the States concerned. For the time being, the Convention has entered into force on 2 January 2009 and is binding on thirty-one States, including ten Mediterranean States[10].

The regime set forth by the CPUCH for the heritage found on the continental shelf is based on a three-step procedure (reporting, consultations, urgent measures).

As regards the first step (reporting), the CPUCH bans secret activities or discoveries. States Parties must require their nationals or vessels flying their flag to report activities or discoveries to them. Information is also provided to the coastal State if the activity or discovery relates to the exclusive economic zone or on the continental shelf of another State Party (see Art. 9, para. 1, b)[11]. States Parties must also notify the discovery to the Director-General of UNESCO who must promptly make the information available to all States Parties.

As regards the second step (consultations), the coastal State is bound to consult all States Parties which have declared their interest in being consulted on how to ensure the effective protection of the underwater cultural heritage in question (Art. 10, para. 3, a, and Art. 9, para. 5). The CPUCH provides that any State Party may declare such an interest and that this “declaration shall be based on a verifiable link, especially a cultural, historical or archaeological link, to the underwater cultural heritage concerned” .

The coastal State is entitled to coordinate the consultations, unless it expressly declares that it does not wish to do so, in which case the States Parties that have declared an interest in being consulted shall appoint another coordinating State. The co-ordinating State must implement the measures of protection which have been agreed by the consulting States and may conduct any necessary preliminary research on the underwater cultural heritage.

As regards the third step (urgent measures), Art. 10, para. 4, of CPUCH provides as follows:

“Without prejudice to the right of all States Parties to protect underwater cultural heritage by way of all practicable measures taken in accordance with international law to prevent immediate danger to the underwater cultural heritage, including looting, the Coordinating State may take all practicable measures, and/or issue any necessary authorizations in conformity with this Convention and, if necessary prior to consultations, to prevent any immediate danger to the underwater cultural heritage, whether arising from human activities or any other cause, including looting. In taking such measures assistance may be requested from other States Parties”[12].

The right of the coordinating State to adopt urgent measures is an important aspect of the CPUCH regime. It would have been illusory to subordinate this right to the conclusion of consultations that are normally expected to last for some time. It would also have been illusory to grant this right to the flag State, considering the risk of activities carried out by vessels flying the flag of non-parties or a flag of convenience.

The CPUCH clearly sets forth that in coordinating consultations, taking measures, conducting preliminary research and issuing authorizations, the coordinating State acts “on behalf of the States Parties as a whole and not in its own interest” (Art. 10, para. 6). Any such action shall not in itself constitute a basis for the assertion of any preferential or jurisdictional rights not provided for in international law, including the UNCLOS.

As regards regional co-operation, Art. 6 CPUCH opens the way to a multiple-level protection of underwater cultural heritage:

“1. States Parties are encouraged to enter into bilateral, regional or other multilateral agreements or develop existing agreements, for the preservation of underwater cultural heritage. All such agreements shall be in full conformity with the provisions of this Convention and shall not dilute its universal character. States may, in such agreements, adopt rules and regulations which would ensure better protection of underwater cultural heritage than those adopted in this Convention.
2. The Parties to such bilateral, regional or other multilateral agreements may invite States with a verifiable link, especially a cultural, historical or archaeological link, to the underwater cultural heritage concerned to join such agreements”.

This corresponds to what has already happened in the field of the protection of the natural environment where treaties having a world sphere of application often co-exist with treaties concluded at the regional and sub-regional level. The key to co-ordination between treaties applicable at different levels is the criterium of the better protection, in the sense that the regional and sub-regional treaties are concluded to ensure better protection than those adopted at a more general level. The possibility to negotiate regional agreements should be carefully considered by the States bordering enclosed or semi-enclosed seas which are characterised by a particular kind of underwater cultural heritage, such as the Mediterranean, the Baltic, the Caribbean.

On 10 March 2001, the participants at an academic conference held in Palermo and Siracusa, Italy, adopted a Declaration on the Submarine Cultural Heritage of the Mediterranean Sea[13]. It stresses that “the Mediterranean basin is characterized by the traces of ancient civilisations which flourished along its shores and, having developed the first seafaring techniques, established close relationships with each other” and that “the Mediterranean cultural heritage is unique in that it embodies the common historical and cultural roots of many civilizations”. The Mediterranean countries were consequently invited to “study the possibility of adopting a regional convention that enhances cooperation in the investigation and protection of the Mediterranean submarine cultural heritage and sets forth the relevant rights and obligations”.

Two years after, the final round table of an International Conference on “Cooperation in the Mediterranean for the Protection of the Underwater Cultural Heritage”, held in Siracusa, on 3-5 April 2003, was devoted to the discussion and definition of feasible proposals in the field of international cooperation for the protection of the underwater cultural heritage in the Mediterranean. At the round rable, which was reserved for the representatives of the governments of the countries bordering the Mediterranean, Italy presented a draft Agreement on the Protection of the Underwater Cultural Heritage in the Mediterranean Sea[14]. The Mediterranean draft is only a tentative text, remaining subject to all the improvements and modifications resulting from the discussion held in Siracusa and further consideration by the countries concerned.

The provisions of the Mediterranean Draft aim at bringing an added value to the CPUCH[15]. For instance:

the application of the law of salvage and the law of finds is completely excluded;
in the case of sunken State vessels and aircraft located in internal waters or territorial sea, a closer cooperation is sought between the coastal State, the flag State of the wreck and other States having a verifiable link with it;
Specially Protected Areas of Mediterranean Cultural Importance can be established[16];
the establishment of an International Museum of Mediterranean Underwater Cultural Heritage is envisaged;
the organization of periodical training courses is foreseen;
in order to stress to special responsibility of Mediterranean States, it is provided that only those States which are Parties to the future Mediterranean Agreement, or which agree to co-operate with the Parties in applying the measures established by it, shall have the right to engage in activities relating to the Mediterranean underwater cultural heritage.

It is however to be regretted that no further steps towards the negotiation and finalization of an agreement on the Mediterranean underwater cultural heritage have so far been made by the countries concerned.

Endnotes

For geographical reasons, in the Mediterranean all the seabed located beyond the limit of the territorial sea falls under the legal condition of continental shelf. In this semi-enclosed sea there is no point located at a distance of more than 200 n.m. (corrisponding to the outer limit of the continental shelf) from the nearest land or island.
Law 1 June 1939, No. 1089, and, today, Legislative Decree 22 January 2004, No. 42, called Code of Cultural Properties and Landscape.
The decision can be read in Il Foro Italiano, 1963, I, p. 1317.
Today the Melqart is kept at the Regional Archaeological Museum of Palermo.
See, for example, the decision rendered on 24 March 1999 by the United States Court of Appeals for the 4th Circuit in the case R.M.S. Titanic, Inc. v. Haver (in International Legal Materials, 1999, p. 807).
During one of the movements in Italy, a fragment of marine incrustations broke off the statue and, having been kept by a person involved in the affair, was later delivered to the Italian authorities. The police was also able to recover a photograph of the statue, as it appeared at the moment when it had been found. Also on the basis of this evidence the Tribunal concluded that the victorious athlete exhibited at the J. Paul Getty Museum was to be identified with the statue found in 1964 by the fishing vessel Ferruccio Ferri.
Supra, par. 2.
Hereinafter: CPUCH.
On the CPUCH see. CAMARDA & SCOVAZZI (eds.), The Protection of the Underwater Cultural Heritage - Legal Aspects, Milano 2002; O’KEEFE, Shipwrecked Heritage: A Commentary on the UNESCO Convention on Underwater Cultural Heritage, Leicester, 2002; CARDUCCI, New Developments in the Law of the Sea: The UNESCO Convention on the Protection of the Underwater Cultural Heritage, in American Journal of International Law, 2002, p. 419; GARABELLO & SCOVAZZI (eds.), The Protection of the Underwater Cultural Heritage - Before and After the 2001 UNESCO Convention, Leiden, 2003; AZNAR GOMEZ, La protección internacional del patrimonio cultural subacuático con especial referencia al caso de España, Valencia 2004; GARABELLO, La Convenzione UNESCO sulla protezione del patrimonio culturale subacqueo, Milano, 2004; DROMGOOLE (ed.), The Protection of the Underwater Cultural Heritage – National Perspectives in Light of the UNESCO Convention 2001, Leiden, 2006.
Croatia, Spain, Libya, Lebanon, Montenegro, Slovenia, Tunisia, Albania, Bosnia and Herzegovina, Italy.
For obvious reasons, information is limited to the competent authorities of States Parties (Art. 19, para. 3).
No attempt was made to define what is a “verifiable link”.
Text in CAMARDA & SCOVAZZI, op.cit., p. 448. See also SCOVAZZI (ed.), La protezione del patrimonio culturale sottomarino nel Mare Mediterraneo, Milano, 2004,
Hereinafter: the Mediterranean Draft.
The Mediterranean Draft presupposes that the Parties to the future Mediterranean Agreement are either Parties to the CPUCH or accept the application of its substantive principles.
This provision is based on the Specially Protected Areas of Mediterranean Interest (so-called SPAMIs) established under the Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean (Barcelona, 10 June 1995).

Sustainable Governance of Offshore Oil and Gas Development in the Mediterranean: Revitalizing the Dormant Mediterranean Offshore Protocol

Thu, 19 Aug 2010 00:00:00 GMT

1. Background

The devastating environmental, economic and social effects of the BP Deepwater Horizon drilling accident in the Gulf of Mexico brought to the surface the evidently inadequate regulatory regime of the powerful US to deal with the complexities and far-reaching consequences of this type of accident and the pitfalls of the present inadequate environmental governance of offshore activities conducted by dominant – and often elusive – oil companies. More importantly, it produced waves of systemic effects in Europe and threw new light on the existing and dangerously complacent situation in the Mediterranean, a regional semi-enclosed sea representing a meeting point between developed and developing world, with complex political relationships, widely differing internal systems, and special geographical, hydrographic, ecological and multicultural characteristics, which is particularly vulnerable to all sources of pollution. In fact, the disaster’s magnitude of the BP oil spill in the Gulf of Mexico has most convincingly revealed the many dark sides in the present governance of the regimes of offshore activities for oil and gas development which remain complacent with continuous technological advances and unable to grasp and manage their inherent risks.

In Europe, the event was immediately placed under creative scrutiny. It was acknowledged that the risks associated with offshore oil and gas exploration and exploitation – a long existing but deficiently and incoherently treated problem at the European level – needed to be specifically addressed in an integrated and sustainable manner. The EU Commission alarmingly recognized the need to improve the safety culture of offshore drilling and to reinforce existing insufficient level of prevention through “thorough checks and controls” strengthened transparency and public scrutiny of the industry as well as of national regulators. It also put under review the celebrated Environmental Liability Directive (2004/35/EC) with a view to modify it, given its weaknesses (e.g. financial security of operators) and the need to be extended in order to include damage to marine waters as a result of oil pollution caused by offshore installations. Further, the EU Commission is conducting a "stress test" on oil drillings in EU waters in order to identify any gaps and weaknesses in the regulatory framework at EU level, while the extension of the mandate of the European Agency for Maritime Safety (EMSA) from vessels to oil platforms is under consideration [1]. Correspondingly, the OSPAR Convention, one of the few regional frameworks of cooperation for the protection of the marine and coastal environment containing a regime of offshore drilling [2], was rushed to make sure that the so-called “Bergen Statement 2010” to be adopted by the coming Ministerial Meeting of the OSPAR Commission in Bergen, Norway, (23-24 September 2010), deals, in a sufficient and effective manner, with the increasing safety risks connected with the offshore oil and gas exploration in the North Sea and beyond.

In the Mediterranean, the repercussions of the event may beneficially refuel the discussion on – and hopefully achieve progress in – a long stagnant situation. The 21 Mediterranean States[3] and the EU, have early enough dealt with the issue of environmental governance of offshore oil and gas exploration and exploitation within the framework of the Barcelona Convention, a model and advanced conventional framework for the protection of the marine and coastal environment of the Mediterranean. The adoption of the so-called Offshore Protocol, in 1994, was not, however, blessed with the required minimum number of ratifications, that is six(6), for its entry into force. Even worse, the signed but unratified Offshore Protocol imperceptibly fell into oblivion. It was the 12th Ordinary Meeting of the Contracting Parties to the Barcelona Convention (Monaco, 2001) where, for the last time, there was a recommendation to the Contracting Parties to ratify this Protocol, together with other unratified or amended but not as yet accepted Protocols [4]. At the following 13th Ordinary Meeting of the Contracting Parties (Catania, Italy, 2003) and ever since then, the Offshore Protocol was inexplicably withdrawn from the standard recommendation on the status of ratification of the Protocols. The governance of offshore activities in the Mediterranean was left to a patchwork of not specific and grossly inadequate national legislations as is clearly evidenced in the National Reports submitted by Contracting Parties regarding national legal and administrative measures taken on the matter [5].

On the other hand, offshore oil installations are presently working in Libya, Egypt, Italy and Croatia and drilling has increased substantially. Importantly, Eastern Mediterranean and particularly the Levantine Basin are emerging as a new province for oil and gas in the next few years. According to the US Geological Survey (USGS), an estimated 122 trillion cubic feet of undiscovered, technically recoverable natural gas are in the Levant Basin Province, and that the province holds more natural gas resources than any region so far assessed in the United States [6].

In Israel drilling companies announced the discovery of "extremely significant" natural gas reserves at an offshore drilling site in the Mediterranean about 60 miles off the coast of Haifa (the so-called Tamar field). Cyprus, to facilitate offshore exploration in eastern Mediterranean waters, signed Delimitation Agreements of the EEZ with Egypt (17 February 2003) and Lebanon (17 January 2007) and held its first licensing round for offshore gas and oil exploration in 2007 – against a backdrop of strong Turkish protests – and she now plans to launch a second offshore licensing round in 2011 while she is reportedly in contact with Israel for the delimitation of maritime borders. Lebanon passed a law in August 2010 authorizing exploration and drilling of offshore oil and gas fields, although maritime borders with Israel are not delimited, thus fuelling tensions with the latter.

Against this background, a critical reappraisal of the dormant Offshore Protocol and the search for an effective Mediterranean regime of sustainable governance of offshore activities for oil and gas development seems to be pertinent and acquires a reinforced significance.

2. The Mediterranean Offshore Protocol: Unfolding the Story in Contemporary
      Perspective

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, signed on 14 October 1994 in Madrid, (the so-called Offshore Protocol) is one of the seven performative Protocols of the Barcelona Convention system [7], related to the implementation of the framework Convention for the Protection of the Marine Environment and Coastal Region of the Mediterranean, 1976, known as the Barcelona Convention. The Offshore Protocol, signed by 11 Contracting Parties to the Barcelona Convention [8], is ratified, or acceded to, by only 5 Contracting Parties [9] and it is not yet in force, still awaiting for the deposit of one more instrument of ratification for its entry into force (a total of 6 ratifications are required according to Art.32(4) of this Protocol). It is to be noted that the text of the Offshore Protocol is the result of a long negotiation process among the Contracting Parties to the Barcelona Convention. Being initially drafted by the International Juridical Organization for Environment and Development, an Italian NGO, in cooperation with the Secretariat of the Mediterranean Action Plan and the Barcelona Convention, it was heavily negotiated and thoroughly discussed by four meetings of Ad Hoc Working Groups of Experts held from 1990 to 1994, before it reached its final stage, the Conference of Plenipotentiaries for its adoption and signature (13-14 October 1994). The negotiation process was featured by the very constructive role played by the representative of the Oil Industry International Exploration and Production Forum (E & P Forum) for the understanding of complex technical issues involved in offshore activities for oil and gas development and their consequences, contributing to the facilitation of consensus on the final text by the negotiating Mediterranean States.

The spatial scope of the governance architecture established by the Offshore Protocol regime applies to the Mediterranean Sea Area, including the continental shelf and the seabed and its subsoil. In fact, the Protocol covers the whole Mediterranean seabed: there is no point located to a distance exceeding the 200 nautical miles from the nearest land or island [10]. It applies to internal waters, extending in the case of watercourses up to the freshwater limits, while wetlands or coastal areas may also be included if the Parties decide so. This is of particular importance, since a great deal of offshore activities of oil and gas exploration and exploitation are currently carried out in this area, although there is a noticeable trend of drilling deeper. At the same time, the Protocol, taking into account the existing legal disputes concerning the delimitation of the continental shelf in the Mediterranean and the need, nevertheless, to promote an environmental governance regime for offshore activities in the area, contains a typical disclaimer clause: the Protocol does not prejudice the rights of any State concerning the delimitation of the continental shelf. The message here is clear. The environmental governance regime of the Protocol will be established and appropriately promoted in the framework of the Barcelona Convention system, irrespective of presently unsettled issues concerning the delimitation of the continental shelf [11].

The functional scope of the governance architecture of the Protocol presents particular interest. It covers the full circle of activities concerning exploration and exploitation of resources in the Mediterranean: scientific activities, exploration activities (e.g. seismological activities, exploration drilling) and exploitation activities (installations establishment, development drilling, recovery/treatment/storage, transportation to shore). It also covers all types of installations (any fixed or floating structure, and any integral part thereof, engaged in offshore activities). And when it addresses its prime objective, the “operator”, it offers an important all-encompassing definition: the “operator” includes not only persons authorized to carry out activities in accordance with the Protocol (the license holder) or who carry out these activities (a sub-contractor), but also any person who does not hold an authorization but is de facto in control of activities.

The sustainable management system established within the framework of the governance architecture of the Protocol requires special attention, although it reflects the predominant at that time “state-centric approach” and it lacks certain aspects of sustainable governance that are to be considered as indispensable by today’s standards and requirements. Nevertheless, it clearly sets up the first operable regional management system for the sustainable development of offshore activities in the Mediterranean. Thus, the Protocol establishes a “due diligence” obligation of the Parties: they are obliged to ensure that all necessary measures are taken so that offshore activities, within their jurisdiction, are in accordance with this Protocol and do not cause pollution. And this “due diligence” obligation is somewhat tailored to the particular capabilities of the Parties: they are obliged to ensure that the operator uses the best available techniques (BAT) which is “environmentally effective and economically appropriate” [12].

Specifying the sustainable management system, the Protocol provides that all activities, including erection of installations on site, are subject to prior written authorization from the competent authority of a Party. Before granting the authorization, the authority must be satisfied that the installation has been constructed according to international standards and practice and that the operator has the technical competence and the financial capacity to carry out the activities. Authorization will be refused by an application of the precautionary principle: if there are indications that the proposed activities are likely to cause significant adverse effects on the environment that could not be avoided by compliance with specified requirements and technical conditions [13].

The operators are required to have a contingency plan to combat accidental pollution, coordinated with the contingency plan of the Parties to the Emergency Protocol of the Barcelona Convention [14], to take safety measures with regard to the design, construction, placement, equipment, marking, operation and maintenance of installations [15], and to remove any installation which is abandoned or disused in accordance with certain stated conditions taking into account guidelines and standards adopted by the competent international organization, the IMO [16]. Special restrictions or conditions are provided for the granting of authorizations for activities in specially protected areas [17].

The provision of the Protocol regarding the environmental management of harmful and noxious substances and materials used for, or resulting from, these activities has become distinctly outmoded. Negotiated and adopted before the initiation of the extensive revision process of the Barcelona Convention system, the Protocol here introduces the differentiating control system of black list and grey list, a typical pattern featuring the first phase of development of international environmental regimes (e.g. other Protocols of the Barcelona Convention [18] as well other international environmental regimes [19]). Thus, if harmful and noxious substances and materials are black-listed, their disposal is prohibited; if they are grey-listed, their disposal requires, in each case, a special permit; the disposal of all other harmful and noxious substances and materials requires a prior general permit [20]. This approach was abandoned at the current second phase of development of international environmental regimes, inaugurated after the Rio Declaration of 1992 and the integration of sustainable development in the governance of international environmental regimes. The differentiating control system of black list and grey list was replaced by an integrating management system which responded better to the new scientific evidence and is incorporated into the extensively amended versions of related Protocols to the Barcelona Convention system or other related instruments of international environmental regimes [21].

Addressing the environmental management of oil and oily mixtures and drilling fluids and cuttings, the Protocol provides the application of common standards and specifying criteria for their disposal, flexibly specified in Annex V [22], although they need to be reconsidered in the light of the new scientific evidence and international practice. With respect to sewage and garbage from installations, the prohibition-exceptions scheme provided by the Protocol [23] also needs to be re-evaluated. Addressing the issue of transboundary pollution, the Protocol establishes the obligation of the Parties to take the necessary measures to ensure that activities do not cause pollution beyond the limits of its jurisdiction as well as to follow a certain procedure in the event of a threat or occurrence of such pollution vis-à-vis the Parties to be affected (immediate notification, granting equal access to and treatment in administrative proceedings to persons of the affected States) [24].

Finally, the Parties are obliged to take measures with respect to the thorniest and most demanding aspect of the sustainable management system of the Protocol: that of liability and compensation for damage caused by offshore activities. And given the period of the negotiation of the Protocol, Article 27, despite the preceding typical framework formulation of the obligation of the Parties to cooperate “in formulating and adopting appropriate rules and procedures” on this issue, it consequently contains, pending this development, certain interesting elements of a liability regime. Thus the Parties are obliged to take all necessary measures to ensure that: liability for damage caused by offshore activities is imposed on operators who are required to pay prompt and adequate compensation (strict liability); operators have and maintain insurance cover or other financial security in order to ensure compensation for damages caused by the activities covered by the Protocol (compulsory insurance).

3. Tying the Knots for Effective Sustainable Governance within the Offshore
     Protocol Regime

Viewed under a contemporary sustainable environmental governance perspective, the “dormant” Mediterranean Offshore Protocol looks pale, despite the significance of its long-negotiated regime and the rather not long lapse of time since its celebrated signature in Madrid in 1994.

In fact, the regime of the Offshore Protocol clearly reflects the state-centric approach to environmental governance that unfailingly features the first phase of the development of all conventional environmental regimes, regional and global. As a result, it does not contain any provision setting up the important framework of the participatory approach to offshore development consistently required under the current phase of sustainable environmental governance perspective. It does not envisage any informational and participatory pattern for the active involvement of all the relevant stakeholders (e.g. local communities, public entities concerned, offshore operators, representatives of fishing industry and tourism, NGOs, scientists, the public concerned) in decision-making procedures for the effective and efficient management of the complex issues involved and the building of trust. The paradigm of the participation models of relevant stakeholders developed in Shetland Islands in Scotland as well as in Alaska is challenging. Securing a multifarious consultation process regarding the assessment of the environmental, economic and social impact of the offshore activities, the improvements of infrastructures of the area, the establishment of a coastal zone management plan meeting the needs of the local community, or the finalization of the assessment process for the decommissioning of offshore installations, these participation models may well serve the necessary evolution of the Offshore Protocol regime towards sustainable environmental governance. In the more general picture, this evolution could be envisaged as being interconnected with the unique Aarhus Convention (UN ECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, 1998) which builds the framework for participatory environmental governance, thus enhancing their synergy.

On the issue of liability, the Offshore Protocol regime, despite the rather strong appeal of the advanced content of Article 27 on Liability and Compensation (strict liability and, especially, compulsory insurance) that was admittedly ahead of its time, remains, on the whole, deficient and requires reconstruction in the light of contemporary developments. No doubt, this issue is of utmost importance for the sustainable environmental governance of the Offshore Protocol regime. Oil spills arising from the activities of offshore installations can be disastrous and accidents can have devastating long-term effects on the environment and the economic life of the region. They may cause an ongoing crisis, like an epidemic. As a result, they may involve considerable costs (clean up costs, compensation to affected parties, restoration and reinstatement of the impaired environment, and, even, compensation by equivalent if the impaired environment cannot return to its previous condition). On the other hand, the case of unreported small and medium-sized oil spills – which are more common – arising from the normal operation of offshore installations and caused by accidental discharges of oil during terminal operations, should also be seriously considered in the development of a relevant liability and compensation regime. And the immense disparity of the power among countries facing these kind of issues vis-à-vis economically and technologically powerful oil companies, inevitably calls for the development of a regional regime for liability and compensation. So far, the international response is totally inadequate because it somehow serves this disparity. At the global level, the existing – and of utmost importance – IMO Conventions on liability for oil pollution damage are specifically designed for maritime traffic. The only international convention specifically dealing with liability for damage caused by offshore activities is the forgotten 1977 Convention on Civil Liability for Oil Pollution Damage from Exploration and Exploitation of Sea Bed Mineral Resources (CLEE Convention) is dead – it has never entered into force. The Offshore Pollution Liability Agreement (OPOL-1974) [25] by which operating companies in Europe agree to accept strict and limited liability for pollution damage (the cost of remedial measures, up to a maximum of US $120 million per incident), is a voluntary liability and compensation private scheme of self-regulation and, as such, of limited scope and significance. OPOL Agreement, being simply a contract governed by the Laws of England and establishing an association of operators in Europe, applying to European waters and only to installations within the jurisdiction of designated states, and covering pollution damages from offshore exploration and production operations but not from abandoned wells or from removal of installations, proved to be a successful instrument exclusively within this context. But it can hardly match the persistent need for developing an international regime of liability and compensation for offshore activities which would effectively counterbalance the negotiating disparity of States vis-à-vis the powerful oil and gas companies. Of limited interest, though for different reasons, are also the recent Guidelines for the Determination of Liability and Compensation for Damage Resulting from Pollution of the Marine Environment in the Mediterranean Sea Area, 2008, adopted in the framework of the Barcelona Convention system [26]. Following a generic approach, these Guidelines also apply to seabed areas, thus encompassing offshore activities in a general non-binding Mediterranean liability and compensation framework for the Barcelona Convention system. Nevertheless, despite some advanced elements these Guidelines contain [27], they leave entirely open two issues of decisive importance for offshore activities: the establishment of a Mediterranean Trust Fund and the question of compulsory insurance of operators, both of which are connected to future –and uncertain – decisions of the Parties to the Barcelona Convention system [28].

Finally, the Offshore Protocol regime needs to be re-evaluated in certain specific aspects and applications of its sustainable management system. Thus, in addition to those specific aspects already mentioned in the previous section, the sustainable management system needs to embrace in a more environmentally integral manner two aspects that mark the beginning and the end of the life cycle of offshore oil and gas development activities. The first refers to seismic surveys. Carried out at the exploration phase, seismic surveys noise, as a form of energy introduced into the marine environment, constitute “pollution” according to the definition of pollution contained in the UN Convention on the Law of the Sea (UNCLOS – Art. 1(1)(4)) and incorporated in the Barcelona Convention (Art. 2(a)). Despite technological improvements, seismic surveys noise have serious chronic and cumulative effects on marine mammals, while the risks associated with the consequences of their operation are often unknown and the paucity of knowledge of their long-term effects on the marine environment is worth considering. It is therefore necessary that, within the framework of the Protocol, specific preventing measures, including the obligation of a special Environmental Impact Assessment (EIA), and monitoring should be provided and, given the high level of uncertainty, the precautionary approach for the management of this issue should be properly developed. The fact that the response at the national level remains very limited, confined only to a few developed countries which have introduced varying legislation on the subject applicable within their territorial sea (Australia, Canada, Norway, United Kingdom, and United States), precisely underlines the need for a harmonized specific regional response within the framework of the Protocol, able to deal with the widely differing power patterns at the national level and to manage the present knowledge deficit.

The second aspect refers to the removal of installations. Given the catalytic importance of this issue, the removal of installations requires a more integrated management: the plans for removal of installations should be developed in consultation with the competent authorities and stakeholders (e.g. local communities, fishing groups and other interested parties) and post removal environmental monitoring should be part of the removal process as an important aspect for assessing the recovery of the production site.

Apart from these two aspects, new issues need to be added to the negotiating agenda for the revitalization of the Offshore Protocol. These include, for instance, emissions from flaring, and especially the flaring of gas from offshore installations, which need to be reduced and be associated with specific licenses or flaring permits whilst the application of Best Available Techniques (BAT) by the operator should be considered at an early stage in the development (in the EIA document). Of cardinal importance is the development of the interconnection between the Offshore Protocol and the recently adopted ICZM Protocol, the innovative seventh Protocol in the Barcelona Convention system, which establishes a common regional framework for the sustainable governance of the Mediterranean coastal zone and applies the ecosystem approach to coastal zone planning and management.

An Epilogue

The time has come for reintroducing the governance of offshore activities for oil and gas development in the Mediterranean and the Offshore Protocol into the agenda of the Barcelona Convention system and the Mediterranean Action Plan. The 21 Mediterranean States and the EU parties to the Barcelona Convention, with the contributing support of all relevant stakeholders, should refocus on the sustainable governance of offshore activities in the Mediterranean. They should, at last, come forward, in the framework of the existing institutional mechanisms of the Convention, with refreshing ideas and constructive proposals for an updated and revised Mediterranean Offshore Protocol. The lesson from the BP accident is abundantly clear: the continuing – and dangerously presumptuous – silence regarding the future of the Offshore Protocol and the reliance, instead, on inadequate, sporadic and widely differing national regulatory systems, potentially places in joepardy the Mediterranean marine environment, the Mediterranean countries and the interests of the people of the region. At the same time, the inexplicable freezing of the Protocol signifies an important loophole in the very roots and the architecture of the Barcelona Convention system that may potentially shake its overall credibility.

Endnotes

See, Günther OETTINGER, EU Commissioner for Energy, Oil Exploration and Extraction - Risks, Liability and Regulation, Speech at the European Parliament Plenary Session, Strasbourg, 7 July 2010, available at http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/10/368&format=HTML&aged=0&language=EN&guiLanguage=en.
In four regions, the established regional environmental governance regimes have developed, through specific performative protocols or annexes, the environmental governance framework of certain aspects related to offshore drilling development: The OSPAR Convention, 1992, (North-East Atlantic), the Baltic Convention, 1992, the ROPME- Kuwait Convention, 1978, and the Barcelona Convention, 1976 (Mediterranean). Of particular interest are The Arctic Offshore Oil and Gas Guidelines, 29 April 2009, developed by the Arctic Council, available at http://arctic-council.org/filearchive/Arctic%20Offhsore%20Oil%20and%20Gas%20Guidelines%202009.pdf.
Seven Mediterranean States, namely Cyprus, France, Greece, Italy, Malta, Slovenia and Spain, are members of the EU.
See UNEP-MAP: Report of the Twelfth Ordinary Meeting of the Contracting Parties to the Convention for the Protection of the Mediterranean Sea Against Pollution and its Protocols, Monaco, 14-17 November 2001, UNEP(DEC)/MED IG.13/8, Annex IV, Recommendations, I. I(A).(a).2.
See UNEP-MAP, Meeting of MAP Focal Points: Summary of National Reports on the Implementation of the Convention for the Protection of the Mediterranean Environment and the Coastal Region of the Mediterranean, and its Related Protocols, 2002-2003, Athens (Greece), 21-24 September 2005, UNEP(DEC) /MED WG. 270/INF.5, Annex, Table 2.6, pp. 143-147.
See USGS Newsroom: Natural Gas Potential Assessed in Eastern Mediterranean, 8/4/2010, available at http://www.usgs.gov/newsroom/article.asp?ID=2435.
The other six Protocols related to the Barcelona Convention system are: The Protocol for the Prevention of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft or Incineration at Sea (1976, amended 10 June 1995, amendment not yet in force) (the Dumping Protocol); The Protocol Concerning Cooperation in Preventing Pollution from Ships and, in Cases of Emergency, Combating Pollution of the Mediterranean Sea (adopted 25 January 2002, entered into force 17 March 2004) (the Prevention and Emergency Protocol), replacing the Emergency Protocol, 1976, in the relations between the parties to both Protocols; The Protocol for the Protection of the Mediterranean Sea Against Pollution from Land-based Sources and Activities (1980, amended 7 March 1996, amendment entered into force 11 May 2008) (LBS Protocol); The Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean (adopted 10 June 1995, entered into force 12 December 1999) (the SPA and Biodiversity Protocol), replacing the SPA Protocol, 1982, in the relations between the parties to both Protocols; The Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements of Hazardous Wastes and their Disposal (adopted 1 October 1996, entered into force 28 December 2007) (the Hazardous Wastes Protocol); and The Protocol on Integrated Coastal Zone Management (adopted 21 January 2008, not yet in force) (the ICZM Protocol).
These are: Croatia (1994), Cyprus (1994), Greece (1994), Israel (1994), Italy (1994), Malta (1994), Monaco (1994), Slovenia (1995), Spain (1994), Syria (1995) and Tunisia (1994).
Tunisia (1998), Morocco (1999), Albania (2001), Cyprus (2001), and Libya (2005).
As required by the rule regarding the outer edge of the continental shelf provided in Article 76 of UNCLOS.
Similar disclaimer clauses, dissociating the establishment of specific Protocols of the Barcelona Convention system from presently existing unsettled jurisdictional issues, are also included in the the SPA and Biodiversity Protocol (Art. 2(2-3)) and the ICZM Protocol (Art. 4(1-2)).
See, Offshore Protocol Art. 3.
Ibid., Art. 4.
Ibid., Art. 16.
Ibid., Art. 15.
Ibid., Art. 20. See, also, IMO Resolution A.672(16) Guidelines and Standards for the Removal of Offshore Installations and Structures on the Continental Shelf and in the Exclusive EconomicZone, adopted on 19 October 1989.
Ibid., Art. 21.
E.g. the Protocol for the Prevention of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft, 1976, Arts. 4 and 5; The Protocol for the Protection of the Mediterranean Sea Against Pollution from Land-based Sources, 1980, Arts. 5 and 6.
E.g. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters, 1972, (London Dumping Convention), Art. IV.
Offshore Protocol Art. 9 (4)(5)(6) and Annexes I &II.
E.g. the Dumping Protocol, supra n.1, Arts. 4 and 5; the LBS Protocol, supra n.1, Arts. 5 and 6. The 1996 London Protocol to the London Dumping Convention, supra n. 12, provides that all dumping is prohibited, except for possibly acceptable wastes on the so-called "reverse list" (Art. 4). Aiming to create a more modern and comprehensive waste management system for the seas, the London Protocol (in force in 2006) modernizes and it will eventually replace the London Dumping Convention.
See, Offshore Protocol Art. 10.
Ibid., Arts. 11 and 12.
Ibid., Art. 26.
See available at http://www.opol.org.uk/agreement.htm.
MAP: 15th Ordinary Meeting of the Contracting Parties to the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean and its Protocols, Decision IG 17/4, pp. 133-140, UNEP(DEPI)/MED IG.17/10, 18 January 2008, UNEP/MAP, Athens 2008.
See e.g. Guideline D “Damage”, Ibid., p.136.
See Guidelines K and L, Ibid., p.138.

Integrated Maritime Governance – The case of the EU’s Integrated Maritime Policy

Tue, 17 Aug 2010 00:00:00 GMT

Promoting sustainable management of the oceans, seas, coasts and maritime sectors requires the development and implementation of an integrated approach to maritime governance[1]. This, in turn, presupposes the establishment of policy frameworks, structures, and common tools which contribute to implementing an all-inclusive approach to sea-related activities[2].

At the European level, the European Commission decided to make “the particular need for an all-embracing maritime policy” one of its strategic objectives for 2005–2009[3]. To pursue this objective, on 10 October 2007, the European Commission adopted its Communication on an Integrated Maritime Policy for Europe accompanied by an Action Plan[4]. The Action Plan sets out a number of measures to be taken by Commission as a first step in implementing a new integrated maritime policy for the EU, namely actions which aim to improve the maritime economy, protect and restore the marine environment, strengthen research and innovation, foster development in coastal and outermost regions, provide leadership in international maritime affairs, and raise the visibility of Europe's maritime dimension.

In this Communication, for the first time, the EU explicitly recognises that an overarching, integrated, and coherent approach is needed for the sustainable management and governance of the oceans, seas, coasts and maritime sectors. Specifically, based on the perception that all "matters relating to Europe’s oceans and seas are interlinked and that sea-related policy must develop in a joined-up way if we are to reap the desired results" [5], the European Commission’s Communication on an Integrated Maritime Policy (IMP) indicates the meaning, importance, and added value of applying an integrated and coherent approach to sea-related affairs.

The ultimate objective of this new policy framework for the EU is to promote and enhance, at EU and international level, integrated and joined-up decision-making on matters affecting the oceans, seas, coasts and maritime sectors, and to create optimal conditions for the sustainable use of the oceans and seas[6]. In particular, the EU’s Integrated Maritime Policy promotes the development and implementation of integrated maritime governance and integrated approaches within EU Member States and coastal regions, and fosters the development of integrated sea-basin strategies tailored to the specific needs of Europe’s different sea-basis[7]. Additionally, this European maritime policy encourages the identification and exploration of synergies between all EU sea-related sectoral policies – namely the environmental, maritime transport, energy, research, industry, fisheries, freedom, security and justice and regional policies. Moreover, this new policy for the EU aims at improving and enhancing cooperation and coordination on maritime affairs with third countries, international maritime partners and organizations[8].

At the core of the Integrated Maritime Policy for the EU lies cross-cutting tools for integrated policy-making instrumental in implementing a holistic approach to maritime affairs. These tools include: (i) an integrated maritime surveillance system for the EU maritime domain to promote the safe, secure and sustainable use of the marine and coastal resources or space[9], (ii) maritime spatial planning and integrated coast zone management to serve as fundamental tools for eco-system based management and sustainable development of marine areas and coastal regions[10] and (iii) a marine data and knowledge network to give stakeholders and policy-makers precise and high quality marine scientific data and information[11].

Moreover, apart from the above-mentioned overarching goals, the Integrated Maritime Policy attaches also great importance to the interaction with and amongst stakeholders and their robust and constant involvement in the maritime policy-making and governance structures. Hand-in-hand development of the Integrated Maritime Policy with the various stakeholders will contribute significantly to promoting and implementing integrated maritime governance for the EU, and it will ensure an all-inclusive thinking on all levels of maritime affairs. In an effort to balance the various interests at stake, facilitate and improve the sharing of information, the exchange of best practices and dialogue with stakeholders, the European integrated maritime policy encourages the establishment of cross-sectoral cooperation platforms and networks with industry, the research community, the maritime regions, public authorities, and environmental NGOs.

When it endorsed the integrated maritime policy, the European Council of 14 December 2007 asked the Commission to report within two years on the achievements of the policy[12]. Following that invitation, the Commission adopted on 15 October 2009 a Progress Report on the EU's Integrated Maritime Policy[13]. In its Progress Report, which was endorsed by the conclusions of the General Affairs Council of the EU on 16 November 2009, the Commission sums up the main achievements of the Integrated Maritime Policy made so far and charts the course for its next implementation phase. The Report sets out six key strategic directions for the future development of the Integrated Maritime Policy: (i) enhancement of integrated maritime governance on all levels (ii) further development of cross-cutting policy tools, (iii) implementation of sea-basin strategies, (iv) definition of the boundaries of sustainability of human activities that have an impact on the marine environment in the years ahead, in the framework of the Marine Strategy Framework Directive, (v) further promotion and development of the international dimension of the IMP, (vi) and a renewed focus on sustainable economic growth, employment and innovation.

To date, the EU’ integrated maritime policy empowered with the strong support from EU institutions, Member States, regions and stakeholders has established itself as new approach to enhance the optimal development of all sea-related activities in a sustainable manner. This new maritime policy for the EU is changing the way Europeans look at their seas and oceans and reaffirms the strategic importance of the continent’s seas and coastal regions. Such an integrated maritime policy approach to the sustainable management and governance of the oceans, seas, and coasts, could serve as a useful source of inspiration and provide a unique contribution towards the establishment of effective and well-functioning global integrated maritime governance.

* This article represents solely the views of its author and cannot in any circumstances be regarded as the official position of the Commission.

Endnotes

The need for an integrated approach to ocean and maritime affairs is emphasized in the preamble to the 1982 UN Convention on the Law of the Sea, which stipulates that “the problems of ocean space are closely inter-related and need to be considered as a whole.” See available online:<http://www.un.org/Depts/los/convention_agreements/texts/unclos/preamble.htm>. Additionally, in 2002, the Johannesburg Plan of Implementation of the World Summit on Sustainable Development concluded that “ensuring the sustainable development of the oceans requires effective coordination and cooperation.” See European Commission Communication on Guidelines for an Integrated Approach to Maritime Policy: Towards best practice in integrated maritime governance and stakeholder consultation – COM(2008) 395, 26.6.2008, pp. 4.
European Commission Communication on Guidelines for an Integrated Approach to Maritime Policy: Towards best practice in integrated maritime governance and stakeholder consultation – COM(2008) 395, 26.6.2008, pp. 4-5.
Green Paper on A Future Maritime Policy for the Union: a European Vision of the Oceans and Seas - COM(2006) 275, pp. 6.
European Commission Communication on an Integrated Maritime Policy for the European Union – COM(2007) 575 of 10 October 2007, and Action Plan to the Communication on an Integrated Maritime Policy for the Union – SEC(2007) 1278.
European Commission Communication on an Integrated Maritime Policy for the European Union – COM(2007) 575 of 10 October 2007, pp. 2.
The main environmental pillar of the Integrated Maritime Policy is the Marine Strategy Framework Directive of June 2008, which aims to achieve good environmental status of the EU’s marine waters by 2020 and to protect the resource base upon which marine-related economic and social activities depend.
See Communication from the Commission on the European Union and the Arctic Region – COM(2008) 763 of 20.11.08, Communication on the European Union Strategy for the Baltic Sea Region – COM(2009) 248 of 10.6.2009, and Commission Communication "Towards an Integrated Maritime Policy for better governance in the Mediterranean – COM (2009) 466 of 11.09.2009.
See Communication on developing the international dimension of the Integrated Maritime Policy of the European Union - COM(2009) 536 of 15.10.2009.
See Commission Communication ‘Towards the integration of maritime surveillance: A common information sharing environment for the EU maritime domain’- COM (2009) 538 final of 15.10.2009.
European Commission Communication on a Roadmap for Maritime Spatial Planning: Achieving Common Principles in the EU, COM(2008)791, of 25.11.08. The Council signed at the end of 2008 the Protocol on Integrated Coastal Zone Management under the Barcelona Convention.
The Commission announced the establishment of a European Marine Observation and Data Network (EMODNET) by the end of 2010.
Presidency Conclusions of the European Council on 14 December 2007 – Doc. 16616/1/07 REV1.
Commission Progress Report on the EU's Integrated Maritime Policy – COM (2009) 540 final of 15.10.2009, p. 2.