Marine environmental law making - IFLOS...Meeresumweltschutz und Landwirtschaft Author ImhoffH...

Marine environmental law making

using the example of the Helsinki Convention

Peter Ehlers

IFLOS Summer AcademyHamburg, 30 July 2019

Aim of the workshop

What do you expect from this workshop?

Aim of the workshop

Improve the understanding of

•the need and the process of establishing marine environmental law

•the role of international conventions such as the Helsinki Convention as a legal tool for the protection of the marine environment

Why do we need marine environmental law?

Why do we need marine environmental law

• protection needs regulations

• establishment of marine environmental principles

• reduction measures

• requirements for using the sea

• enforcement

• preparedness for combatting pollution

Do we need a legal framework for continuous activities, esp. co-operation?

Need for co-operation

• Monitoring and assessment

• combatting

• implementation of regulations

• development of

1.specific standards

2.further regulations

Who is the law maker?


National legislation

International agreements and regulations

Is national legislation sufficient?


Area of application

•territory (incl. waters of jurisdiction) -principle of territoriality

•own citizens – principle of personality


What about

•seaward areas

•transboundary pollution

•shipping


Can restricted national regulations lead to specific problems?


Substantial difference in regulations

Economic competitiveness

Where do we find international regulations for the protection of the marine environment?

Is there some sort of a primary legal basis?

Which frame does UNCLOS provide?

UNCLOS – Part XII

Regulatory and enforcement obligationsand competencies for the protection of themarine environment

Obligations of States to „take all necessarymeasures“

Establishment of environmental principles

UNCLOS – Part XII

Does UNCLOS provide any substantial environmental standards?

UNCLOS – Part XII

Is UNCLOS an environmental convention?

The law maker

Does UNCLOS provide an obligation forenvironmental law making?


Who should be a contracting party ofinternational regulations?

International regulations

Art. 197, 207 – 212 UNCLOS (adopt – endeavour)

Global vs. regional regulations

What are the advantages anddisadvantages?

Which problems come up with regard to international regulations?

Problems of international regulations

• lengthy procedure

• need for consensus

• need for ratification

• effective implementation

• effective enforcement

• control

Legal character ofinternational rules

Let‘s discuss the legal character of international rules


• binding law: conventions, customary law

• soft law: recommendations, declarations, guidelines

What are the advantages and disadvantages?

Legal character ofinternational provisions

Who is the adressee of international obligations?


• States

• Individuals

Implementation

Who has to implement and enforce international provisions?

Implementation

•Contracting parties (States)

•Supranational bodies (EU, International Seabed Authority)

How do we come to international regulations?

International regulations

Declaration or resolution adpopted by an international Conference or the UN General Assembly?

Conclusion of a new international convention oramendment of an existing convention

International convention

Conclusion of a new international convention or amendment of an existing convention

Where do we find principles for concluding a convention?


Vienna Convention on the Law of Treaties


What is the procedure to conclude a convention?

Example: International regulations to reduce underwater noise


• Proposal

• drafting of a text

How to structure a convention?


• proposal


• convention – annex(es)

What is the next step?


• proposal



• adoption

• Signature

What are the means of expressing consent to be bound by a treaty

Consent to be bound

• Signature

• exchange of instruments

• ratification, acceptance, approval

• accession


• proposal



• adoption (Art. 9 VTC)

• signature (Art. 10 VTC)

• ratification, approval and accession

What are the national requirements?


• proposal






• constitutional requirements/ implementation law


• proposal







When does the convention enter into force?


• proposal







• quorum for the entry into force

How can a convention be amended?

Amendment of a convention

Which problems arise?

Amendment of a convention

• acceptance by all contracting parties

• tacit acceptance procedure

Is a ratification needed?

What about those who do not agree?

Which national requirements are to be met for the application of international provisions?

National requirements

• States obligations – self executing regulations(„undertake“)

• transformation into national law

• enforcement and control

Cf. Art. 213 et seq. UNCLOS: States shall adoptlaws and regulations and take other measures toimplement international rules and standards

Do you know specific marine environment conventions?

Examples for marine environment conventions

Convention for the Protection of the Marine Environment of the North East Atlantic (OSPAR Convention)

Convention for the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention)

Convention for the Protection of the Mediterranean Sea Against Pollution (Barcelona Convention)

Several conventions for other marine areas under the UNEP Regional Seas Programme: framework conventions with

protocols on different sources of pollution and other matters,

such as regional co-operation in cases of casualties or on

protected areas and wild fauna

Marine environment conventions

Are the IMO Conventions environment conventions?

Marine environment conventions

MARPOL (OILPOL)

SOLAS (?)

STCW (?)

Intervention Convention

Convention on Oil Pollution Preparedness

Convention on the Control of Anti-fouling Systems on Ships

Ballastwater Management Convention

Convention on the Removal of Wrecks

London Dumping Convention

Liability Conventions (Oil, Bunker, HNS)

Marine environmental law making - IFLOS...Meeresumweltschutz und Landwirtschaft Author ImhoffH...

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