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This book is open access under a CC BY-NC 4.0 license.
It explores the diverse phenomena which are challenging the international law of the sea today, using the unique perspective of a simultaneous analysis of the national, individual and common interests at stake. This perspective, which all the contributors bear in mind when treating their own topic, also constitutes a useful element in the effort to bring today’s legal complexity and fragmentation to a homogenous vision of the sustainable use of the marine environment and of its resources, and also of the international and national response to maritime crimes.The volume analyzes the relevant legal frameworks and recent developments, focusing on the competing interests which have influenced State jurisdiction and other regulatory processes. An analysis of the competing interests and their developments allows us to identify actors and relevant legal and institutional contexts, retracing how and when these elements have changed over time.

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Inhaltsverzeichnis

Frontmatter

The Equitable and Sustainable Exploitation of Marine Environment and of Its Resources

Frontmatter

Open Access

Adapting to Sea Level Rise: A Law of the Sea Perspective

Abstract
Climate change is altering the ocean temperatures and current around the world. Although it is not clear how different regions of the earth will be affected by this change, coastal communities are suffering from impacts associated with sea level rise and stronger storms. It has been recognized, since the first international concern about climate change, that sea level rise will have implications for the physical and legal status of the sea and maritime zones. Some parts of the world are disappearing or reappearing, and consequently base points and baselines are also affected. States would seek to reinforce them and preserve their coastline, islands, and maritime zones by constructing shoreline protection and sea defenses. Some theories have been developed to adapt the sea level rise with the legal issues.
The article will focus on the importance of offshore areas for the coastal populations and how a rising sea level creates uncertainties as to islands, baselines, maritime zones, and maritime boundaries. It will examine how sea level rise creates a threat to the maritime territory and coastal State resources. These consequences may lead to conflicting claims on maritime resources.
This article will also review the existing and potential conflicts with regard to the rising sea level as a result of climate change. It will also highlight the legal solutions or predictions adopted or to be followed to prevent the loss of baselines and maritime zones, and in some cases to prevent the extinction of the State. However, these solutions may have legal consequences that may lead to change of the legal status. The article closes with creative, innovative approaches necessary to cope with these consequences.
Sarra Sefrioui

Open Access

The Common Fisheries Policy: A Difficult Compromise Between Relative Stability and the Discard Ban

Abstract
For over 30 years, the TACs (total allowable catches) have been distributed among the Member States of the European Union using a fixed allocation key, supposedly based on historic catches, known as the relative stability. In December 2013, Regulation (EU) No 1380/2013 of the European Parliament and the Council on the Common Fisheries Policy was adopted. This new regulation keeps relative stability as a criterion for allocating fishing opportunities among Member States and also introduces something new: a ban on discards, which are catches returned to the sea. Implementing the discard ban poses a major challenge for mixed fisheries, where more than one species is present. The aim of this paper is to examine this compromise between relative stability and the discard ban.
José Manuel Sobrino, Marta Sobrido

Open Access

Some Recent Questions Regarding the European Union’s Public Access Fisheries Agreements

Abstract
The European Union’s (EU) exclusive competence on the conservation of fisheries resources is not restricted to the maritime waters under the sovereignty or jurisdiction of its Member States but also extends to the activities of EU fishermen and fishing vessels in the waters of third countries or on the high seas. In developing this competence, the EU has gradually forged an external fishing policy that has enabled it to negotiate fisheries agreements with third States, with a view to maintaining the activity of the EU fishing fleet, as well as to helping to supply the European market for fish. Very recently, the Court of Justice of the European Union (CJEU) case law has reflected some of the problems that have arisen during the development of this international competence held by the EU in the field of fisheries, namely, the European Commission competence to represent the EU before an international court or tribunal, as well as the problem of the EU international legal responsibility for any breach of its obligations provided by an access fisheries agreement; the scope of the competence of the EU in the field of fisheries, as well as the notion of an international fisheries agreement; and the procedure for access to fisheries resources by virtue of an international fisheries agreement.
Gabriela A. Oanta

Open Access

The Protection of Biodiversity in the Framework of the Common Fisheries Policy: What Room for the Shared Competence?

Abstract
The protection of biodiversity (species and ecosystems) in the framework of the Common Fisheries Policy was one important concern of the reform enacted by the EU Regulation No.1380/2013. The most visible innovation was the direct link, established by Art. 11, between the fisheries management and the achievement of the goals set forth by the Marine Strategy Framework Directive (2008/56/EC) and Directives under which the Natura 2000 network was being developed (92/43/EEC and 2009/147/EC). Article 11 is clearly focused on marine protected areas, but the exact relation between this article and other legal bases raises problems of interpretation. In fact, the concern with the protection of the ecosystems is also foreseen in several provisions of EU Regulation No. 1380/2013 (e.g., Arts. 19 and 20).
When comparing all legal bases, we come to the conclusion that the Regulation clearly distinguishes the powers of the coastal Member State depending on whether fishing vessels fly its flag or not. Nonetheless, the legal solutions are not always identical, that is, the decision-making process changes from one article to another.
The first goal is, therefore, to analyze the purpose of each legal basis, to determine their interrelation, and to discuss the order of their application by a coastal Member State in a concrete situation. As a second goal, the balance between the exclusive competence for the conservation of fisheries resources and the shared competence for the protection of biodiversity of the European Union will be addressed. As a matter of fact, under European Union legislation, Member States have the duty to designate marine protected areas and to achieve a good environmental status (shared competence). Accordingly, Member States have also the duty to approve the necessary management measures. Fisheries are very often one of the human activities envisaged by the management measures, given the need for restricting or prohibiting fisheries in order to ensure the protection of the ecosystems and/or species. The question is to assess whether EU Regulation No. 1380/2013 facilitates or hinders the action of the Member States in the fulfillment of their duties.
Throughout the chapter, several hermeneutic proposals will be formulated in order to ensure a more effective protection of marine biodiversity under EU Regulation No. 1380/2013, without putting in jeopardy the essence of the shared competence.
Marta Chantal Ribeiro

Open Access

Marine Scientific Research: Taking Stock and Looking Ahead

Abstract
This chapter critically explores the international legal regime, which operates to regulate marine scientific research. It addresses current and future challenges. More particularly, the first part outlines the general characteristics of this regime. It begins with a brief legislative history to illustrate the factors that have influenced the shape of the current legal framework. It then gives an overview of the current legal framework. The second part considers implementation concerns, as well as some unsettled questions that could lead to potential confusion when the marine scientific research regime is being interpreted and applied in practice. It concludes with some general remarks regarding how marine scientific research can be more effective, a factor of great importance in combatting global ocean threats.
Emmanuella Doussis

Open Access

Protecting Arctic Ocean Marine Biodiversity in the Area Beyond National Jurisdiction

Plausible Legal Frameworks for Protecting High Arctic Waters
Abstract
Over the last decades, the Arctic environment as a whole altered dramatically due to the impacts of climate change. Troubling rates of Arctic sea ice melt—with a projected ice-free summer in mere decades—may allow for unprecedented economic activity, such as a rise in navigation via the emerging Arctic Sea Routes, as well as the extraction of offshore living and nonliving resources. Considered to be one of Earth’s final pristine ecosystems, the Arctic’s unique marine ecosystem also boasts a wealth of nonliving resources. The region holds incredible biodiversity and supports adaptive capacities for species in extreme environmental conditions. Amid new optimism regarding commercial conquests, the marine ecosystem critical to Arctic species resilience is at risk. The following chapter, developed from our previously published article “Legal Instruments for Marine Sanction in the High Arctic,” reviews the rationale for protecting marine biodiversity in Arctic waters and examines the existing legal framework for marine protected area creation, as well as its limits. Specifically considering the challenge of protecting marine life in the High Arctic area beyond national jurisdiction (ABNJ), the chapter first critically examines the call for an “Antarctic modeled” legal designation for the entire Arctic high sea area as a marine protected area, concluding the idea to be largely impractical for the geographically and politically dissimilar pole. Next we examine three other potential legal mechanisms for MPA creation in Arctic’s areas beyond national jurisdiction: an UNCLOS implementing agreement, an additional protocol to the UNCBD, and a regional agreement. Based on our analysis, we argue that a complementary, regional legal regime for MPA creation in the High Arctic would offer a pathway to adequate protection while being more politically feasible than other alternatives.
Kamrul Hossain, Kathleen Morris

Open Access

The Environmental Legal Framework for the Development of Blue Energy in Europe

Abstract
The objectives of this contribution are to describe and assess the legal obstacles for ocean energy development in Europe. On the one hand, we analyze the impact of the law of the sea, pay special attention to maritime safety issues. On the other, we deal with the EU environmental legislation on nature and biodiversity, together with the cross-cutting strategic tools. And finally, we focus on the obstacles due to the protection of the marine environment.
Enrique J. Martínez Pérez

Open Access

The Black Sea and Blue Energy: Challenges, Opportunities and the Role of the European Union

Abstract
The Black Sea is enormously valuable from different perspectives: economic, political, social, environmental, and strategic. Various sources of marine renewable energies can offer successful answers to some specific challenges in this basin. Therefore, the Black Sea needs a regional, or at least sub-regional, approach. Despite that the EU has undertaken different initiatives, there is room for improving the consistency of its actions. The EU should identify all the aspects in which it can help to pave the way and strive to achieve maximum coherence between its strategies, thereby maximising their effectiveness. Blue growth and blue energy should play a greater role in the European Union’s projections and initiatives for all the sea basins within its scope, particularly that of the Black Sea.
Montserrat Abad Castelos

The National and International Response to Maritime Crimes

Frontmatter

Open Access

Exploring the Ambiguity of Operation Sophia Between Military and Search and Rescue Activities

Abstract
Over the past decade, for the purpose of managing the phenomenon of migration by sea, a wide number of different measures have been adopted by the European Union and its Member States. Notwithstanding the persistent need and the legal obligation to save people’s lives at sea, Europe remains stocked on the protection of the security of its internal and external borders and goes ahead with the launch of Eunavfor Med—Operation Sophia, the first naval mission aimed to disrupt the business model of migrant smuggling and human trafficking in the Mediterranean. The following chapter examines the factual and legal background behind the establishment of this military mission and focuses on two sensitive and interrelated aspects: the use of enforcement powers against alleged smugglers and traffickers on the one hand and the rescue of irregular migrants at sea on the other hand. While various challenges prevent the activation of the crucial military phase of Operation Sophia, the operational and legal framework applicable to incidental search and rescue interventions carried out by its naval forces appears rather unclear and problematic under different perspectives of international law, especially if the Operation will continue into Libyan territorial waters in cooperation with its unstable authorities.
Giorgia Bevilacqua

Open Access

Private Maritime Security Contractors and Use of Lethal Force in Maritime Domain

Abstract
The following Chapter analyzes the issue of the use of lethal force in the maritime domain. Due to a lack of relevant case law, this examination draws partial conclusions by comparing the maritime-related provision of security services with the private military and security services conducted on land. A number of maritime-related regulations and ordinances, recommendations, guidelines, standards, and standard contract forms are examined in order to assess the extent to which the issue of the use of force is considered and regulated. In addition, general provisions of civil and criminal law are analyzed in order to assess their applicability to the above-noted legal documents. Finally, several key issues in connection to the use of lethal force in the maritime domain are highlighted as exigent for further consideration.
Jasenko Marin, Mišo Mudrić, Robert Mikac

Open Access

United Nations Authorized Embargos and Maritime Interdiction: A Special Focus on Somalia

Abstract
The chapter looks at the history of UN authorized embargos where enforcement has been contemplated through, typically, visitation of vessels and confiscation of goods violating an embargo. An important issue here is the right to innocent passage in the territorial seas of the states actually enforcing the embargo. The chapter considers in some detail the regimes adopted for both Libya and Somalia, with focus on the enforcement authority granted in UNSC Res. 1973 (2011) and UNSC Res. 2182 (2014). Some of the challenges following the authorization under UNSC Res. 2182 (2014) are then identified.
Magne Frostad

Open Access

The Right of Innocent Passage: The Challenge of the Proliferation Security Initiative and the Implications for the Territorial Waters of the Åland Islands

Abstract
The legal status of the Åland Islands is a special case in international law. Åland is an area that is demilitarised, is neutralised and enjoys wide autonomy under Finnish sovereign rule. The demilitarisation regime is regulated directly by a multilevel legal framework, and Finland’s sovereign rights as a coastal State are significantly restricted by the 1921 Åland Convention. The UN Convention on the Law of the Sea sets out a comprehensive legal framework for marine activities. The Convention contains specific articles on the right of innocent passage. The Proliferation Security Initiative launched by the United States in 2004 has raised the questions of its application on the territorial sea against a foreign ship exercising the right of innocent passage. This Chapter attempts to examine the relationship of the PSI to the right of innocent passage and to the 1921 Åland Convention.
Pirjo Kleemola-Juntunen
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