MANAGEMENT OF THE UK MARINE AREA: THE INTERNATIONAL LAW CONTEXT Robin Churchill, University of Dundee

Introduction UK authorities do not have a complete discretion as to how they manage UK marine area (e.g. adoption of marine plans, licensing of marine activities and establishment of marine conservation zones) Aim of paper to look at constraints on such discretion arising from international (and EU) law Will focus on:  rights of other States in UK marine area and competence of UK to regulate their exercise (primarily governed by UN Convention on the Law of the Sea (UNCLOS))  certain international environmental obligations

UK Marine Area Bill divides into four zones:  Internal waters. Waters landward of the baseline  Territorial Sea (TS). Out to 12 nm from baseline  Exclusive Economic Zone (EEZ): created by Bill (cl. 39) – at last! Beyond TS out to 200 nm  Continental shelf. Seabed beyond TS out to 200 nm, and in some cases further

Other States’ rights in UK’s territorial sea  Innocent passage (navigation that is not prejudicial to the peace, good order or security of coastal State) (UNCLOS Art.17)  Transit passage (freedom of navigation through international straits) (UNCLOS Art. 38) (Straits of Dover, North Channel and Fair Isle Gap)  Fishing. Some EU Member States have right to fish in 6-12 nm zone around parts of UK under the Common Fisheries Policy

UK’s legislative jurisdiction over vessels in innocent passage Unrestricted competence to regulate except for construction, design, equipment and manning (CDEM) standards, provided does not hamper innocent passage and is non-discriminatory (UNCLOS, Arts. 21 and 24). May include discharge standards, use of sea lanes and traffic separation schemes (Art 22) May lay down CDEM standards only if giving effect to international rules (Art. 21(2))

UK’s legislative jurisdiction over vessels in transit passage Restricted to: designating sea lanes and traffic separation schemes conforming to international regulations. Must be referred to International Maritime Organisation (IMO) “with a view to their adoption” (Art. 41) giving effect to international regulations re discharges of oil and other noxious substances. Such laws must not hamper and must be non- discriminatory (Art. 42)

UK’s jurisdiction over EU vessels fishing in 6-12 nm zone May adopt non-discriminatory measures for conservation of fishery resources or to minimise effects of fishing on conservation of marine ecosystems provided no equivalent EU measures. Must consult Commission and other Member States affected (Reg. 2371/2002, Art. 9) May adopt short-term emergency measures if serious threat to conservation of fishery resources or marine ecosystem. Must notify Commission and other Member States affected (Reg. 2371/2002, Art. 8)

Consequence for Establishment of MCZs in Territorial Sea Difficult to establish MCZs in international straits Elsewhere possible to regulate other States’ rights sufficiently to allow for establishment of effective MCZs

Other States’ rights in the EEZ Freedom of navigation Freedom to lay cables and pipelines Freedom of overflight Right to fish only for vessels from EU Member States, Norway and Faeroe Islands [possibility of scientific research]

UK’s Jurisdiction in the EEZ Re navigation by other States. Mainly concerning pollution:  Regulate dumping of waste  Apply laws that conform to international regulations (Art.211(5))  Where latter power inadequate for areas with special conditions, laws to implement international rules that IMO has made applicable to special areas, after notification to IMO and giving notice (Art. 211(6)(a))  Plus additional national discharge or navigational standards, but not CDEM, provided IMO agrees (Art. 211(6)(c)

UK’s jurisdiction in the EEZ (cont.) Fishing  short-term emergency measures, as in territorial sea  otherwise EU has exclusive competence to regulate fishing in EEZ

UK’s jurisdiction in the EEZ (cont) Laying of cables and pipelines (Art. 79)  Course of pipeline subject to UK consent Overflight  No jurisdiction (except possibly to restrict overflight of installations) Scientific research (UNCLOS, Art. 246)  Must normally permit pure research  Has complete discretion to permit/refuse applied research and attach conditions to any consent

Consequence for Establishment of MCZs in EEZ  Possible to exclude pipelines and scientific research from MCZ  UK has no competence to exclude foreign fishing vessels from MCZ, but could be done by EU (cf. existing legislation on cold-water coral reefs)  UK has very little competence to regulate foreign shipping in MCZ, but could be done by IMO through e.g. areas to be avoided, deep-water routes and traffic separation schemes

Some Treaties imposing Environmental Obligations Ospar Convention on Protection of Marine Environment of NE Atlantic, 1992 Ramsar Convention on Wetlands of International Importance, 1971 Agreement on Conservation of Small Cetaceans of Baltic and North Seas, 1992 African-Eurasian Waterbird Agreement,1995 [EU Wild Birds and Habitats Directives]

Ospar Convention Regulates pollution from dumping of waste, offshore installations, and land- based sources Aims to establish an ecologically coherent network of well-managed marine protected areas in the north-east Atlantic by sites so far proposed, over 40 from UK (all but one SACs)

Ramsar Convention on Wetlands of International Importance Obligations on parties:  Designate wetlands in its territory for inclusion in List of Wetlands of International Importance. UK has designated 166 sites  “formulate and implement their planning so as to promote the conservation” of wetlands on the List and “as far as possible their wise use” (Art. 3)

ASCOBANS Parties are to “work towards” i.a.:  Reducing by-catches of small cetaceans in fishing nets  Reducing disturbance to habitat from e.g. noise, whale watching

African-Eurasian Waterbird Agreement,1995 Parties “shall” i.a.: “encourage” protection, management, rehabilitation and restoration of sites and habitats for migratory waterbirds Investigate problems posed by human activities and “endeavour to implement remedial measures, including habitat rehabilitation and restoration, and compensatory measures for loss of habitat”