Московский журнал международного права (Oct 2019)
Designation of Marine Protected Areas (issues of international law)
Abstract
INTRODUCTION. Treaty and customary rules of International Law of the Sea provide for the duty of States to protect and preserve the marine environment, using for this purpose “the best” means. States shall also cooperate in elaborating legal mechanisms for the protection and preservation of the marine environment on a universal, regional or bilateral basis. Universal treaty sources of modern international law, including the UN Convention on the Law of the Sea, 1982 (UNCLOS), among other numerous rules on protection and preservation of the marine environment, provide for the adoption by the coastal states more stringent ecological laws and regulations in “clearly defined” areas. Different terms are used for designating such areas in UNCLOS and other international instruments such as Convention for the Prevention of Pollution by Ships, 1973 modified by the Protocol of 1978 (MARPOL 1973/78); Convention on Biological Diversity, 1992; the Protocols adopted by the UN Environmental Programme (UNEP); documents of International Maritime Organization (IMO). Such terms are used: “special areas”; “marine protected areas”; “marine protected territories”; “particularly sensitive areas”. Not all these terms are used in UNCLOS and none of them is defined by the rules of this convention. Convention on Biological Diversity provides for the definition of “marine protected areas”, but only for the purpose of conservation of biodiversity. This paper addresses optional approaches to interpreting rules of international law which are relevant to marine protected areas and practice of states in designating such areas, first and foremost, in the waters of Arctic and Antarctic, where the consequences of marine pollution might be irreversible.MATERIALS AND METHODS. This paper demonstrates the evolving legal basis of international cooperation of states in establishing marine protected areas beginning from the text of the Washington convention of 1926, materials of the Committee of Experts of the League of Nations, the Convention for the Prevention of Pollution by Ships, 1973 as amended by Protocol 1978, and documents of the International Union for the Conservation of Nature and Natural Resources. Particular attention is devoted to interpreting the rules on special areas provided in UNCLOS. The paper addresses also the relevant rules of the Convention on Biological Diversity, 1992; UNEP Protocols, beginning with the first of them – “the Protocol on Mediterranean Specially Protected Areas”, adopted in 1982; and also relevant soft-law documents such as “Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Areas”, adopted by the Assembly IMO in 1991 and famous “Agenda for XXI”, adopted by the Rio Environmental Conference in 1992 and relevant documents of the Johannesburg Summit, 2002. The focus of the research is directed to legal materials of designating marine protected areas in the Arctic and Antarctic.RESEARCH RESULTS. International Law is developed by more and more maturing legal mechanisms of different level, including treaty level, which relate to designating marine protected areas and to governance theirof. Different classifications of such areas are suggested in legal literature, taking into account different terms used in relevant sources of international law. It is suggested in legal literature to make accent on differentiating between the term “special areas”, as it is provided in MARPOL 1973/78 and the same term used in UNCLOS. As a result of this research it is suggested a different approach. The practice of states in pursuing environmental protection, as noted in the paper, reveals a trend not to fragment relevant legal notions, applicable to designating special protected areas at sea in defined limits and thus not to create additional confusion of legal terms but rather to consolidation, comprehensive interpretation of international law rules applicable to special areas. Within this trend it is suggested that the term “marine protected areas” as a generic term is interpreted in a wide context, not limiting it to the meaning of the term, used in a specific international agreement. According to such a wide approach rules of international law on marine protected areas in their cumulative effect provide not only duties of states to protect marine environment; not only that more stringent environmental measures in such areas are aimed at protection from pollution by oil or other pollutants; such stringent measures are aimed also at preservation of ecosystems, ecological complexes, including marine living resources. The economic activities in such areas might be restricted or even prohibited in order to achieve specific environmental purposes, including preservation of marine endemics and other rare marine living resources; including also sustainability of marine bioproductivity and monitoring the state of ecological balance in such areas. The coastal states may also adopt laws and regulations relating to special environmental governance of such areas.DISCUSSION AND CONCLUSIONS. While according to MARPOL 1973/78 the legal regime of “special areas” is limited by more stringent measures for preventing pollution of the sea from vessels, the legal regime of marine protected areas is different, according to cumulative effect of relevant rules provided in UNCLOS, Conservation of Marine Biodiversity, the UNEP Protocols to regional sea conventions and other sources of international law relating to preservation and protection of the marine environment. Firstly, according to the latter sources, the legal status of marine protected areas is defined not only a broader context, but also as an on-going process, with perspectives of its development and individual framing, taking into account the oceanographical and ecological conditions of a concrete marine area which is qualified as specially protected. Secondly, almost universal recognition in legal teachings of a broad meaning of the term “marine protected areas” does not mean that designation of such areas is the most effective at the universal level. Though the first Intergovernmental Conference in September 2018 demonstrated the common intention of states to prepare at the universal level the Agreement on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, no one expects a speedy conclusion of such an agreement, even of framework character. In this context it is concluded in the paper that more perspective are regional and bilateral levels of interaction of states concerned for designating marine protected areas, with more detailed consideration of the relevant oceanographical and ecological conditions of a particular marine region and special character of shipping traffic in such a region. In practical terms, issues of interpretation and application of rules of international law on marine protected areas are very important for the relatively young practice of designating such areas in the Arctic, which is nevertheless very sensitive for each Arctic states as shown in the paper.
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