The Barcelona Convention System: An Analysis of its Law and Policy Aspects Presentation to “The Legal Aspects of the Barcelona Convention and it Protocols” – a Mediterranean seminar on the practical elements of implementation MEPIELAN & MIO-ECSDE Seminar October 26 -28, 2006 by Moira L. Mc. Connell Professor of Law Director, Marine & Environmental Law Institute Dalhousie Law School Canada http: //www. dal. ca/law/MELAW
The Barcelona Convention system: the international legal context Surveying the legal “landscape” of ocean and ecosystem governance • treaties and other arrangements establish international legal obligations on States • international legal obligations (and relations) exist at various, often overlapping and highly interdependent “levels” Global↔ Regional ↔ Domestic/National ( Multilateral) Global↔ Domestic/National (Multilateral) Regional ↔ Domestic/National ( Multilateral) Domestic/National ↔ Domestic/National (Bilateral Treaties) • implementation of international obligations at the State or national level remains the core concern of international law for most issues 2
The Barcelona Convention system: the international legal context Global Level • 1982 United Nations Law of the Sea Convention (UNCLOS) - the “constitution for the oceans” • adopted in 1982 but not in force until 1994 – as of 20 Sept 2006 - 150 States are party ( bound) (*many, but not all, States in the Mediterranean are party to UNCLOS) • a comprehensive “umbrella” Convention ( 320 Articles plus annexures and two subsequent implementing Agreements) • aimed at addressing ocean space use and ensuring the fair allocation of resources and prevention of conflict • combines codification and clarification of the existing law of the sea with obligations and concepts to deal with emerging equity and ecosystem protection concerns • based on the idea that “the problems of ocean space are closely interrelated” 3
UNCLOS - PART XII PROTECTION AND PRESERVATION OF THE MARINE ENVIRONMENT A number of key provisions that now inform subsequent ocean & ecosystem related agreements • Article 192 - General obligation States have the obligation to protect and preserve the marine environment. • Article 1 - Use of terms and scope (4) "pollution of the marine environment" means the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities; 4
• Article 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, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonize their policies in this connection. 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 in accordance with this Convention. 3. The measures taken pursuant to this Part shall deal with all sources of pollution of the marine environment. These measures shall include, inter alia, those designed to minimize to the fullest possible… 5
• “All Sources” identified in Art 194 include: (a) the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping; (b) pollution from vessels, (c) pollution from installations and devices used in exploration or exploitation of the natural resources of the seabed and subsoil, in particular measures for preventing accidents and dealing with emergencies, (d) pollution from other installations and devices operating in the marine environment, in particular measures for preventing accidents and dealing with emergencies, 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. 6
UNCLOS- Part XII - other sources of harm Article 196 Use of technologies or introduction of alien or new species 1. States shall take all measures necessary to prevent, reduce and control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control, or the intentional or accidental introduction of species, alien or new, to a particular part of the marine environment, which may cause significant and harmful changes thereto. 7
UNCLOS - other key provisions The obligation or duty “to cooperate” Part XII - SECTION 2. GLOBAL AND REGIONAL COOPERATION Article 197 - Cooperation on a global or regional basis States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features. 8
Obligations regarding liability PART XII SECTION 9. RESPONSIBILITY AND LIABILITY • Article 235 - Responsibility and liability 1. States are responsible for the fulfilment of their international obligations concerning the protection and preservation of the marine environment. They shall be liable in accordance with international law. 3. With the objective of assuring prompt and adequate compensation in respect of all damage caused by pollution of the marine environment, States shall cooperate in the implementation of existing international law and the further development of international law relating to responsibility and liability for the assessment of and compensation for damage and the settlement of related disputes, as well as, where appropriate, development of criteria and procedures for payment of adequate compensation, such as compulsory insurance or compensation funds. 9
Other relevant international instruments – arising from 1992 UNCED • The 1992 Convention on Biological Diversity (CBD) under the auspices of the United Nations Environment Programme (UNEP) was adopted in 1992 - in force as of 1993, with 189 States party • biological diversity is (Art. 2): "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. " 10
• objectives of the CBD are: – conservation of biological diversity; – sustainable use of its components, and – fair and equitable sharing of the benefits arising out of the utilization of genetic resources • covers all the world's “ecosystems” - "the dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit. " • 1995 the parties to the CBD adopted the “The Jakarta Mandate on Marine and Coastal Biodiversity” - a programme of action for implementing the CBD with respect to marine and coastal biodiversity 11
CBD, Article 8 – “In-situ Conservation” provides inter alia that Each Contracting Party shall, as far as possible and as appropriate: (c) Regulate or manage biological resources important for the conservation of biological diversity whether within or outside protected areas, with a view to ensuring their conservation and sustainable use; (d) Promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings; (f) Rehabilitate and restore degraded ecosystems and promote the recovery of threatened species, inter alia, through the development and implementation of plans or other management strategies; (h) Prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species; (k) Develop or maintain necessary legislation and/or other regulatory provisions for the protection of threatened species and populations; (edited text) 12
The Barcelona Convention system: the international legal context • UNCED 1992 also adopted: – a framework Convention on Climate Change – Agenda 21, a comprehensive plan of action to be taken globally, nationally and locally – the Rio Declaration on Environment and Development which sets out key principles now found in most international environmental agreements (MEAs) and in national legislation • Established a Commission on Sustainable Development (CSD) to ensure effective follow-up of UNCED, to monitor and report on implementation of the agreements at the local, national, regional and international levels 13
1992 Rio Declaration - 27 principles - considered to be “soft law” Some key principles among the 27 are: • Principle 4 - environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it • Principle 10 - participation of all concerned citizens, at the relevant level • Principle 11 - enact effective environmental legislation. • Principle 15 - the precautionary approach shall be widely applied by States according to their capabilities • Principle 16 - the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment • Principle 17 - environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority 14
The Barcelona Convention system: the international legal context • 1995 the Global Programme of Action for the Protection of the Environment from Land–based Activities (GPA) was established (also under the auspices of UNEP) • adopted an Action Plan • the UNEP Regional Seas programmes, first established in 1976, are seen as providing an important mechanism for implementing the GPA ( as well as MEAs and sustainable development objectives) 15
The Barcelona Convention system: the international legal context In addition there are numerous sector or issue specific “regulatory” conventions • Ship source pollution - IMO Conventions and activities including: – International Convention for the Prevention of Pollution from Ships, MARPOL 73/78 – Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972, as amended 1996 (London Convention) – International Convention on Oil Pollution Preparedness, Response and Co-operation, 1990 (OPRC 1990) – International Convention on the Control of Harmful Anti-Fouling Systems (ANTI-FOULING) (not in force) – International Convention for the Control and Management of Ships' Ballast Water and Sediments, 2004 (not in force) – related regional cooperation arrangements (MOUs) for port State control, e. g. , Paris MOU; Mediterranean MOU, Black Sea MOU … 16
The Barcelona Convention system: the international legal context • Fisheries conservation (numerous Codes etc) – FAO • Other conventions addressing specific issues such as: – Stockholm Convention on Persistent Organic Pollutants (POPs) • as well as interaction with numerous subregional and bilateral agreements • The problem of fragmentation in the international system and associated problems of potential conflict and overlapping obligations and mandates as well as associated costs of maintaining this system are well known. • It has, in some cases, resulted in a loss of confidence in law and rule of law to effectively address issues. • Coordination and integration of these treaties, agencies and activities to ensure effective implementation of existing obligations is now a priority for the UN system. 17
Some key dates from a regional seas perspective 1972 - The United Nations General Assembly, meeting at the Conference on the Human Environment (5 -16 June in Stockholm, Sweden), creates UNEP 1975 - The Mediterranean Action Plan (MAP) adopted in Barcelona, Spain. 1976 - The Convention for the Protection of the Mediterranean Sea against Pollution (Barcelona Convention), was adopted in 1976 and entered into force in 1978. It was the Programme's first regional legal agreement, 1982 – UNCLOS adopted 1992 - UNCED – RIO Dec, CBD, CSSD 1994 - UNCLOS – in force 1995 – GPA adopted 1998 - First UNEP Inter-Regional Seas Programme Consultation bringing together for the first time all the secretariats and coordinating units of Regional Seas programmes. 2002 - The World Summit on Sustainable Development (WSSD- Rio +10) points to pressures on marine and coastal ecosystems from fisheries, biodiversity loss, and pollution. Identifies the need to strengthen regional cooperation and coordination among regional organizations and programmes. 2004 - The Convention for the Protection of the Marine Environment and Coastal Region of the Mediterranean (Barcelona Convention - as renamed and amended in 1995 - enters into force). 18
The Barcelona Convention system and the Regional Seas programme • • 1975 the Mediterranean Action Plan (MAP) a Policy instrument was adopted at an intergovernmental meeting . 12 more plans have been adopted under the auspices of UNEP. – Black Sea – East Africa – East Asian Seas – North-East Pacific – North-West Pacific – Red Seas & Gulf of Aden – ROPME Sea Area – South Asian Seas – South East Pacific – South Pacific – West & Central Africa – Wider Caribbean 19
The Barcelona Convention system • 1976 the Convention for the Protection of the Mediterranean Sea Against Pollution, a legal framework, was adopted for the MAP • Although it pre-dated the adoption of UNCLOS in 1982, from a legal standpoint the Mediterranean Sea is often considered an “Enclosed or Semi-enclosed Sea” as defined in Art 122 of UNCLOS For the purposes of this Convention, "enclosed or semi- enclosed sea“means a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States. • issues of proximity, difficulties relating to the delimitation of maritime boundaries in a relatively narrow sea and the resulting juridical nature of much of the Mediterranean Sea requires a high degree of cooperation to avoid overexploitation of the resources and destruction of the marine environment 20
• UNCLOS - Article 123 -Cooperation of States bordering enclosed or semi-enclosed seas States bordering an enclosed or semi-enclosed sea should cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention. To this end they shall endeavour, directly or through an appropriate regional organization: (a) to coordinate the management, conservation, exploration and exploitation of the living resources of the sea; (b) to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment; (c) to coordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area; (d) to invite, as appropriate, other interested States or international organizations to cooperate with them in furtherance of the provisions of this article. 21
The Barcelona Convention system • • • Barcelona Convention ( 1976 & as amended in 1995) and the six Protocols (in force so far) constitute the” Barcelona Convention System” analytically it can be seen as a “framework Convention” setting out general principles and obligations with Protocols and technical annexes addressing specific issues of concern an approach that is increasingly adopted in various international fora to – address the difficulty of achieving widespread agreement on issues in the context of increasing diversity of socio- economic situations and interests of States – build consensus and agreement and commitments on general objectives and principles with a view to moving towards agreement on obligations on more specific or technical matters, particularly if the issue requires capacity building to achieve implementation • 22 Contracting Parties to the Barcelona Convention (1976) with 17 of these now party to the 1995 amendments (which renamed the Convention) that came into force in 2004: Albania, Algeria, Bosnia and Herzegovina, Croatia, Cyprus, Egypt, the European Community, France, Greece, Israel, Italy, Lebanon, Libya, Malta, Monaco, Morocco, Serbia and Montenegro, Slovenia, Spain, Syria, Tunisia, Turkey 22
The “Barcelona Convention" (as amended in 1995) • States party to the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean agreed to, inter alia, the following: . Article 4 - General Obligations 1. The Contracting Parties shall individually or jointly take all appropriate measures in accordance with the provisions of this Convention and those Protocols in force to which they are party 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. 23
The “Barcelona Convention” ( as amended in 1995) 2. The Contracting Parties pledge themselves to take appropriate measures to implement the Mediterranean Action Plan and, further, to pursue the protection of the marine environment and the natural resources of the Mediterranean Sea Area as an integral part of the development process, meeting the needs of present and future generations in an equitable manner. For the purpose of implementing the objectives of sustainable development the Contracting Parties shall take fully into account the recommendations of the Mediterranean Commission on Sustainable Development established within the framework of the Mediterranean Action Plan. . 5. The Contracting Parties shall cooperate in the formulation and adoption of Protocols, prescribing agreed measures, procedures and standards for the implementation of this Convention. 24
The Barcelona Convention: the Protocols Article 29 - RELATIONSHIP BETWEEN THE CONVENTION AND PROTOCOLS 1. No one may become a Contracting Party to this Convention unless it becomes at the same time a Contracting Party to at least one of the protocols. No one may become a Contracting Party to a protocol unless it is, or becomes at the same time, a Contracting Party to this Convention. 2. Any protocol to this Convention shall be binding only on the Contracting Parties to the protocol in question. 25
The Barcelona Convention: the Protocols Convention for the Protection of the Mediterranean Sea against Pollution Adoption (Barcelona): 16 February 1976 Entry into force: 12 February 1978 Status: Signatories: 15, Parties: 22 1995 Amendments (Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean) Adoption (Barcelona) 10 June 1995 Entry into force 9 July 2004 Status: Parties to the Amendments: 17 Protocols (6 in force) 1. The Protocol for the Prevention of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft (Dumping Protocol) Adoption (Barcelona): 16 February 1976 Entry into force: 12 February 1978 Status: Signatories: 15, Parties: 22 1995 Amendments (The Protocol for the Prevention of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft or Incineration at Sea) Adoption (Barcelona) 10 June 1995 Not Yet in Force Status: Parties to the Amendments: 14 26
2. The Protocol concerning Co-operation in Combating Pollution of the Mediterranean Sea by Oil and other Harmful Substances in Cases of Emergency (Emergency Protocol) Adoption (Barcelona): 16 February 1976 Entry into force: 12 February 1978 Status: Signatories: 15, Parties: 22 3. The Protocol concerning Co-operation in Preventing Pollution from Ships and, in Cases of Emergency, Combating Pollution of the Mediterranean Sea (Prevention and Emergency Protocol) Adoption (Malta): 25 January 2002 Entry into force: 17 March 2004, replacing the 1976 Emergency Protocol in accordance with Article 25 (2) Status: Signatories: 16, Parties: 7 4. The Protocol for the Protection of the Mediterranean Sea Against Pollution from Landbased Sources (LBS Protocol) Adoption (Athens): 17 May 1980 Entry into force: 17 June 1983 Status: Signatories: 22, Parties: 22 The 1996 Amendments (The Protocol for the Protection of the Mediterranean Sea Against Pollution from Land-based Sources and Activities (LBS Protocol)) Adoption (Syracuse): 7 March 1996 Not Yet in Force Status: Parties to the Amendments: 13 27
The Barcelona Convention and its Protocols 5. The Protocol Concerning Mediterranean Specially Protected Areas (SPA Protocol) Adoption (Geneva): 3 April 1982 Entry into force: 23 March 1986 Status: Signatories: 11, Parties: 22 6. The Protocol concerning Specially Protected Areas and Biological Diversity in the Mediterranean (SPA & Biodiversity Protocol) Adoption (Barcelona): 10 June 1995 Entry into force: 12 December 1999, replacing the 1980 SPA Protocol in accordance with Article 32 Status: Signatories: 17, Parties: 14 7. 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 (Offshore Protocol) Adoption (Madrid): 14 October 1994 Not Yet in Force Status: Signatories: 11, Parties: 4 28
The Barcelona Convention and its Protocols 8. Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements of Hazardous Wastes and their Disposal (Hazardous Wastes Protocol) Adoption (Izmir): 1 October 1996 Not Yet in Force Status: Signatories: 11, Parties: 5 Protocols and other instruments under development • Rules and Procedures for the Determination of Liability and Compensation for Damage Resulting from Pollution of the Marine Environment in the Mediterranean Sea Area • Draft Protocol on Integrated Coastal Zone Management in the Mediterranean (ICZM) 29
The Barcelona Convention system: Analysis and points of interest • The 1995 amendments to the Convention were clearly intended to integrate in the legal text developments since 1976 in connection with UNCLOS, the CBD, sustainable development and the principles in the Rio Declaration • The 1995 amendments “modernize” the 1976 text of the Convention in a number of ways including: – extends the geographical scope of the Convention to the “Mediterranean Sea Area” without referencing particular maritime zones – provide flexibility to tailor the geographical application to the particular concern of a Protocol – specifically foresees (in the new title and provisions) possible extension to coastal areas to reflect GPA and concerns about LB sources of pollution and the need for ICZM 30
The Barcelona Convention system: Analysis and points of interest – specifically incorporates sustainable development and promotes institutional integration for e. g, Art. 4 para 1 and 2, – harmonizes the definition of pollution with UNCLOS and specifically refers to UNCLOS and to the CBD – commits States to: • apply the precautionary principle, • apply the polluter pays principle, • undertake EIA, • promote integrated management of the coastal zones – has an express obligation to adopt legislation to implement the Convention and Protocols (Art 14) – provides for public participation ( Art. 15) – enhanced reporting obligations to ensure effective implementation and compliance ( Arts 26 and 27 31
The Barcelona Convention system: Analysis and points of interest in the Protocols • The updated or modernized protocols reflect similar changes to bring them in line with later developments For example: • the Dumping Protocol ( dumping of wastes from ships or aircrafts other than operational discharges – Prohibits incineration of wastes at sea – revised to adopt the “reverse logic” of the 1996 London Convention - dumping prohibited unless on a list of permitted matters. • the LBS Protocol more closely aligned with GPA ( 80% of marine pollution) – application now extends to the hydrological basin watershed – phasing out of inputs from land of substances that are toxic, persistent and liable to bioaccumulation” ( POPs”) 32
• 1995 SPA and Biodiversity Protocol – changes so extensive it replaces rather than amends the earlier text – implements ideas in Agenda 21 (UNCED 1992) and UNLOSW re “fragile ecosystems” – extends to all marine waters including “high seas” of the Mediterranean ( to protect highly migratory species – marine mammals), subsoil and wetlands and coastal areas, – foresees MPAs ( as per CBD) and provides for a list of SPAMIs ( Specially Protected Areas of Mediterranean Interest) – 3 annexures • criteria for designating SPAMIs • list of endangered or threatened species • list of species whose exploitation is regulated 33
The Barcelona Convention system: Analysis and points of interest in the Protocols • Offshore Protocol – addresses offshore exploration and exploitation activities on the seabed and national continental shelves – includes some provision for liability and compensation • Hazardous Wastes Protocol – “adds value”[ to matters already largely covered by international MEA - the Basel Convention ( 1989) on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. – covers radioactive products and tries to address coastal/Transit State rights through prior notification, if not authorization – includes some provision for liability and compensation • 2002 Emergency Protocol – new protocol rather than amending the prior text – seeks to “add value” to existing system under IMO (OPRC and MARPOL) on a regional level and with EU standards to respond to marine environmental protection emergencies – provides additional obligations on Masters to report etc. 34
The Barcelona Convention system: Future Challenges & Opportunities • an external evaluation of the MAP has suggested that it might be seen as ineffective however. recent studies suggest that States are committed to the legal framework of the Barcelona System and see it as dynamic • what is the role of the Convention relative to the Action Plan in terms of achieving the overall objective(s)? • need for consistency in ratifications and try to reduce the complexity of the system • shifting the focus to effective implementation and compliance rather than developments of treaties and strategic plans • challenges and opportunities in light of conflicts in the region, north south issues etc. • the complexity of regional socio-economic arrangements ( EU) that may affect the national autonomy of some States 35
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