26/29 June - Dipartimento di Scienze Giuridiche UniSalento Room R 27

Judicial Training and research on EU crimes against environment and maritime

pollution

 Saverio Di Benedetto – University of Salento

International Environmental Protection and the Law of the Sea

International Environmental Protection and the Law of the Sea

I. Introduction – Legal, social and epistemic assumptions

II. International Legal Framework

III.Environmental principles

I - Introduction – Legal, social and epistemic assumptions

Legal Assumptions

Environmental protection is typically regulated by interna-tional law when global commons are involved, such as high seas or outer space, or global concerns are at stake, e.g. biodiversity or climate change.

Basic differences between national and international law

Absence of an established and unitary law-making process

Importance of customs and principles of law

Limited mechanisms of law enforcement

I - Introduction – Legal, social and epistemic assumptions

Social assumptions

Two main kinds of environmental interests

Human environment human health economic resources

Nature biodiversity habitats ecosystems

Two main forms of threats to the environment

Pollution

Natural resources exploitation / degradation

I - Introduction – Legal, social and epistemic assumptions

Marine environmental damage (pollution and degradation)

Pollution forms Ships navigation Toxic substances transportation Dumping Land-based activities (factories; urban agglomerates; agriculture) Mineral extraction from seabed Submarine cables and pipelines Atmospherics activities

Degradation causes Fisheries exploitation Whaling Modification of coastal territory

Threatened goods Marine biodiversity Fish and mammals stocks Coastal ecosystems and human habitats

Legal instruments are both general and focused on specific goods or threats

I - Introduction – Legal, social and epistemic assumptions

Epistemic assumptions

Industrialist paradigm vs. environmental discourses

3 models of environmental protection

Assimilative (polluter pays principle)

Preventive (prevention principle)

Precautionary (principle of precaution) The role of the science and inherent limits to knowledge and prediction

II – International Legal Framework

Customary law

International treaties and conventions

Legal principles

Soft law

II – International Legal Framework

Parallelism: Development of International Environmental Law and Instruments protecting marine environment

Stockholm Conference of 1972 on Human Environment. London Dumping Convention 1972 Maritime Pollution (MarPol) Convention 1973/78

UNCLOS 1982 : basic rules concerning marine environmental protection

Regional Seas Agreements

II - International Legal Framework

UNCLOS - PART XII PROTECTION AND PRESERVATION OF THE MARINE ENVIRONMENT

Art. 192 – General obligation “States have the obligation to protect and preserve the marine environment.”

Art. 193 – Sovereign right of States to exploit their natural resources “States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment”

II - International Legal Framework

Art. 194 – Measures to prevent, reduce and control pollution of the marine environment

1) “States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source […]”

2) “States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights”

II - International Legal Framework

3) Far-reaching list of relevant sources of marine pollution

4) “In taking measures to prevent, reduce or control pollution of the marine environment, States shall refrain from unjustifiable interference with activities carried out by other States in the exercise of their rights and in pursuance of their duties in conformity with this Convention.”

5) “The measures taken in accordance with this Part shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.”

Artt. 207 – 212 Specific obligations for states to prevent reduce and control pollution of marine environment

II - International Legal Framework

III – Environmental Legal Principles

Key role of the UN Conference on Environment and Development (Rio de Janeiro, 3-14 June 1992)

Final Declaration: set of non-binding principles

Principle 16 (polluter pays principle) “National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.”

III – Environmental Legal Principles

Principle 2 “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”

Quasi-identical text of Principle 21 of Stockolm Declaration (nature of customary rule)

Internal antagonism between first and second part

Parallel between Principle 2 and art. 192-194 UNCLOS

III – Environmental Legal Principles

Principle 15 (the precautionary principle) “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”

This principle is affirmed since mid ‘80s. It was not set out by the UNCLOS and other conventions protecting the marine environment, but has been subsequently integrated in all relevant conventions, by amendments and protocols.