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Current Issues on Mediterranean Environmental Governance

Tuesday, 21 December 2010
by José Juste-Ruiz, Professor of International Law, University of Valencia, Spain*
Current Issues on Mediterranean Environmental Governance
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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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)
  6. Albania, Algeria, Bosnia & Herzegovinia, Croatia, Egypt, Israel, Jordan, Lebanon, Libya, Mauritania, Monaco, Montenegro, Morocco, Occupied Palestinian Territories, Syria, Tunisia and Turkey.
  7. 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
  8. 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) .
  9. 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”.
  10. 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. 
  11. The IUCN Mediterranean Sea Experts Group has adopted several recommendations on the matter at its meetings of Istanbul (January 2010) and Procida (October 2010)
  12. 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).
  13. 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).



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