The ICJ, ITLOS and the Precautionary Approach: Paltry Progressions, Jurisprudential Jousting

The precautionary approach, although highly touted as a fundamental principle of international environmental law, has become well-known for the confusion surrounding its interpretation and practical implications. Confusion has emanated from definitional generalities and variations and even debates over appropriate terminology. A spectrum of precautionary measures exist and viewpoints on whether strong versions of precaution or weaker versions should prevail have differed

Edging Towards Principled Ocean Governance: Law of the Sea and Beyond

Elisabeth Mann Borgese is well known for her commitment to advancing the legal order for the improved regulation of the world’s oceans. Her advocacy with respect to the United Nations Convention on the Law of the Sea (UNCLOS) is the subject of other essays in this volume. However, in the decades since 1982, legal principles, sometimes linked to provisions in treaties, have become critical in the global quest for sustainable seas and healthy coastal communities. Principles, such as precautionary and ecosystem approaches, have influenced the negotiation, implementation, and interpretation of international agreements. They may also guide national ocean law and policy reforms, for example, encouraging adoption of integrated coastal and ocean management approaches and enhancement of public participation in ocean-related decision-making. The continued importance of principles and the long list of what are considered to be key ocean governance principles can be seen in the 2016–2017 UN Preparatory Committee discussions trying to hammer out possible elements for a new international agreement for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. Wide convergence was reached on what key principles might be included in a future agreement. Among others, they are sustainable development; ecosystem approach; pre- caution; integrated approach; science-based approach, using the best available scientific information and knowledge, including traditional knowledge; adaptive management; polluter pays principle; public participation; transparency and availability of information; and good faith. Getting a firm grip on ocean governance principles is difficult for at least five reasons. First, the term ‘principle’ is itself slippery with other terms sometimes used interchangeably such as concept, approach, and norm. An especially confusing terminological issue is whether the terms ecosystem approach and ecosystem-based management are synonymous, or whether they represent different paradigms. Second, the legal status of principles is often uncertain, whether they are legally binding or merely ‘soft law’. Third, the practical implications of principles are often contested, for example, as to the precautionary measures required by the precautionary principle. Fourth, the definitions of principles may vary, for example, some versions of the precautionary principle call for measures to be cost-effective while others do not. Fifth, the interrelationship of principles tends to be confusing, for example, the relationship between the preventive principle and the precautionary approach. This essay provides an overview of how the international community has edged forward in developing ocean governance principles. Principles emanating from the UNCLOS and its progeny, such as the Rio Declaration on Environment and Development (Rio Declaration), are summarized and the importance of UN General Assembly (UNGA) resolutions and processes in promoting principled ocean governance is highlighted. This is followed by a brief consideration of the role of the Food and Agriculture Organization of the United Nations (FAO) in developing principled approaches to fisheries and aquaculture. The essay also reviews the contributions of key multilateral arrangements and agreements, such as the Convention on Biological Diversity (CBD), to the evolution of principles. The role of courts and tribunals in interpreting ocean-related principles is not addressed

The Precautionary Approach and the International Control of Toxic Chemicals: Beacon of Hope, Sea of Confusion and Dilution

Toxic chemicals in the environment are a continuing concern. Nearly 80,000 chemicals are on the market in the United States; of those, 200 synthetic chemicals are found in measurable quantities in the bodies of Americans. More than 5 billion kilograms of toxic pollutants are released or transferred each year in North America. Even more alarming, basic toxicological information is lacking for most these chemicals. Long-range transport of persistent organic pollutants (POPs), chemicals that are persistent and bioaccumulate, is a special concern particularly in the Arctic, which acts as a sink. Examples of POPs include various pesticides, such as DDT, chlordane, aldrin, heptachlor and toxaphene, industrial chemicals such as PCBs (polychlorinated biphenyls), and unintentional byproducts such as dioxins and furans. Even commonly used chemicals, such as brominated flame retardants and fluorinated compounds (used as stain repellants and as non-stick surfaces on cookware) have found their way into Arctic food webs. In total, about 4300 organic chemicals, most having low or unknown levels of production, are thought to have Arctic bioaccumulation potential, while over 120 industrial organic chemicals and pesticides are considered high-production volume (greater than 1000 tons/year) and have been identified as having POP characteristics. Elevated levels of POPs in both Arctic wildlife and human residents raise serious health concerns. Polar bears with high levels of contaminants may suffer adverse effects in reproduction and in their immune systems. Inuit mothers have been found to have two to eight times the level of various environmental contaminants in their blood compared to mothers living in the South. While it is difficult to precisely determine the effects on human health due to varying socioeconomic and lifestyle conditions, potential chemical synergies, limited toxicity studies, and a range of other factors, several subtle effects (immunological, cardiovascular and reproductive) have been identified by epidemiological studies in the Arctic. The precautionary approach, often used interchangeably with the term precautionary principle, has been heralded as perhaps the most fundamental norm of international environmental law to better protect the environment from the threats of toxic chemicals. Precaution captures common sense notions evident in many cultures like an ounce of precaution is worth a pound of cure and better safe than sorry. Precaution provides critical guidance for making environmental decisions where there is scientific uncertainty as to environmental effects of a proposed use or activity. Decision-makers following the precautionary principle are to err on the side of caution. The precautionary principle/approach is well established, as it has been embraced in over fifty international, legally-binding agreements and over forty non-binding instruments. This Paper, through three images, highlights the rather uneasy relationship between the precautionary approach and the international control of toxic chemicals. First, the beacon of hope aspect of precaution is described whereby various strong versions, such as a reversal in the burden of proof, offer to help avoid the shoals of chemical harms to the environment and human health. Second, the sea of confusion is briefly navigated with a review of six confusing currents including definitional generalities and variations. Third, the sea of dilution reality in global conventions and initiatives, aimed at controlling toxic chemicals, is emphasized, in which precaution is marginalized or adopted in watered down forms

Marine Protected Areas: Legal Framework for the Gully Off the Coast of Nova Scotia (Canada)

The Gully, a submarine canyon hosting a rich diversity of marine life off Nova Scotia, was designated in 2004 under Canada’s Oceans Act 1996 as a marine protected area (MPA). This case study reviews the Gully MPA legal and management framework through a five-part discussion. First described is the overall Canadian law and policy context for establishing MPAs. Next, specific legislative and regulatory provisions governing the Gully MPA are summarized including the three types of management zones adopted, ranging from strict preservation to multi-use. Management approaches to control human activities in and around the MPA are then described, with a focus on the Gully Marine Protected Area Management Plan. Ongoing management challenges are highlighted including implementation of the ecosystem approach, unresolved legal issues, such as what constitutes a disturbance of the Gully MPA for prosecution purposes, and governance limitations, in particular limited financial and human resources. The case study concludes with lessons to be learned from the Gully MPA experience. Key lessons include: the time-consuming nature of MPA establishment, the usefulness of multi purpose zoning, the need for a multi-agency approach, the value of strong communication with user groups, the importance of linking MPA designation to integrated management planning, and the need for ongoing law and policy review

High Seas Fisheries: Troubled Waters, Tangled Governance and Recovery Prospects

Global fisheries are in a perceived state of crisis. Despite growing technological effort and an unprecedented global expansion of fisheries, total landings (85-100 million MT per year) have stagnated and probably entered a period of slow decline. This trend may destabilize ocean ecosystems and undermine world seafood supplies, which provide the major source of protein for 2.3bn people, and international cooperation to address this issue has been slow. This is particularly true for highseas fisheries that occur in international waters encompassing some 61% of the world\u27s ocean. These have been plagued by a fragmented and weak legal framework, poor enforcement of existing regulations, and the problem of illegal, unreported, and unregulated (IUU) fishing. On the positive side, individual States have introduced measures that have been successful in recovering overexploited resources. Turning the tide on the high seas requires strong government cooperation to enforce conservative harvest levels (quotas), as well as measures that protect biological diversity, such as protected areas, bycatch regulations, and the conservation of critical habitats. This article provides a short overview of the biological, institutional and legal dimensions of high-seas fisheries. It emphasizes that this is a unique time in history, where unprecedented awareness, scientific advances, and a growing willingness to collaborate internationally are setting the stage for a dynamic transformation of high-seas governance. What is missing is a visionary master plan on how to integrate fragmented efforts towards the common goal of sustainable development on the high seas

The Protection of the Marine Environment from Land-based Pollution and Activities: Gauging the Tides of Global and Regional Governance

After providing an introductory overview of the major land-based threats to the marine environment, this article focuses upon the specific global and regional efforts to address land-based marine pollution and activities through a four-part survey. The main international initiative is first described, namely, the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (GPA). Progress in GPA implementation is next assessed with an emphasis on the documentation and results from the Second Intergovernmental Review Meeting on Implementation of the GPA held in October 2006. Major challenges constraining GPA implementation are then summarized, including limited national participation, limited financing, and limits of a non-legally binding approach. Finally, regional agreements and initiatives to counter land-based marine pollution and activities are reviewed. Progress and challenges in GPA implementation at the regional seas level are highlighted

Canada and Transboundary Fisheries Management in Changing Oceans: Taking Stock, Future Scenarios

This article is the Introduction to the Special Feature entitled: Canada and Transboundary Fisheries Management in Changing Oceans: Taking Stock, Future Scenarios. We summarize the research context of the four papers in the Special Feature