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AN ASSESSMENT

Law, Practice and Procedure

P. Chandrasekhara Rao and Philippe Gautier

As a conclusion of their work, the authors observe that the Tribunal has fulfilled the role entrusted to it by the Convention on the Law of the Sea. It has developed its own working methods in handling cases and has established itself as a judicial institution able to discharge its functions efficiently and cost-effectively. In addition, its jurisprudence has contributed to the development of a coherent interpretation of the law of the sea.

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Law, Practice and Procedure

P. Chandrasekhara Rao and Philippe Gautier

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P. Chandrasekhara Rao and Philippe Gautier

This book provides a first-hand insight into the constitution, jurisdiction, procedure and judicial practice of the International Tribunal for the Law of the Sea. It provides a valuable guide to the jurisprudence of the Tribunal over the past 20 years, and serves as a reference point for practical information on how cases are received and handled by the Tribunal.
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Jill Wakefield

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Jill Wakefield

This chapter considers the problem of externalities in EU marine fisheries where the EU has instituted a system that supports an industry that is functioning with no requirement to internalise its costs. The issue has not been addressed under the CFP reform and has not even been raised in the vast literature underpinning the regulation of the sector. A new approach to fisheries sustainability is suggested, whereby the responsibility for the state of the resource is transferred to operators. It is proposed that regulation of fisheries builds on the experience of the regulation of the water and waste industries by employing user-pays MBIs. The establishment of a fund is suggested in order to transfer the responsibility for the sustainability of the fish resource from the regulator to the industry and the costs of overexploitation from the public to the industry. If this were to be done, complex regulation of the sector would no longer be required, freeing the regulator to execute its proper function of controlling the industry.
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Jill Wakefield

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Jill Wakefield

This chapter is concerned with the EU’s attempts to integrate environmental protection into marine management. As the environment is an area of competence shared between the Union and Member States, progress to improve protection relies on the Member States agreeing management plans. The EU has devised an Integrated Maritime Policy (IMP) to overcome the fragmented decision-making that has arisen as a result of the regulation of marine areas according to individual sectors, with its environmental pillar to be established through the Marine Strategy Framework Directive (MSFD). This Directive demands the achievement of good environmental status for seas by 2020 but progress has been slow. One reason for the failure to move towards good environmental status more rapidly is the fact that the MSFD does nothing to integrate the CFP within its scope and fails to subject the CFP to broad environmental objectives that would prevent the overexploitation of the fish resource. The EU’s latest Environmental Action Plan (EAP) does not extend to marine fisheries, creating an obstacle to the achievement of desired outcomes. Under the terms of the MSFD, each Member State must assess the marine environment within their own waters and determine good environmental status according to specific qualitative descriptors. The optimum solution for achieving good environmental status would be the harmonisation of approaches between Member States to replace the disjointed efforts so far adopted, and a strengthening of the Regional Sea Conventions, such as the OSPAR Convention, to which the EU is party. To demonstrate that a harmonised approach would advance good environmental status, the Marine Directors, senior officials appointed by the Member States, have suggested the Member States use the experience of the Water Framework Directive (WFD) to inform implementation and monitoring, and have recommended the adoption of market-based instruments (MBIs) to secure the outcomes sought.
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Jill Wakefield

Over twenty years ago, the EU approved MBIs as mechanisms that would promote the responsible use of natural resources. This chapter considers the use of MBIs that operate within clear regulatory frameworks applying environmental principles, most particularly the polluter-pays principle, which is discussed in conjunction with the user-pays principle. The user-pays principle has been deployed in the EU’s WFD and the polluter-pays principle in the Environmental Liability Directive. These instruments demonstrate the potential of MBIs to deliver policy goals in situations of market failure, transferring the costs of the adverse effects of resource use from the general public to users of environmental resources. So successful is the device that the Commission proposed extending the existing financial security provisions of the Civil Liability Convention for Oil Pollution Damage in a new EU scheme. These provisions were intended to persuade operators towards the prudent conduct of their affairs with a view to protecting the environment. The efficacy of such MBIs will depend on operators providing financial security against the risk of damage being caused by their activities.
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Jill Wakefield

This chapter describes the framework of international legal instruments that have formed the basis of EU fisheries regulation. A raft of measures have been adopted by the international community to protect living marine resources and to promote environmental sustainability. However, the most significant impact of international law with regard to fisheries has been to entrench the right of States to exploit the living marine resource. Environmental measures confirm the right to extract at the maximum sustainable level, but do not elaborate how such a level is to be determined, leaving the marine resource susceptible to overexploitation. The limitation on protection is sought to be overcome through a non-binding FAO Code of Conduct which attempts to substitute a notion of a right to use the fish resource in place of the right of exploitation recognised in international law.
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Jill Wakefield

This chapter considers the predicament of the overexploited EU fishing grounds and why the most integrated and regulated region of the world, the European Union, has failed to ensure the sustainability of its fish stocks. The Common Fisheries Policy (CFP), rooted in the Common Agricultural Policy regulating the husbandry of the land and harvesting of crops, has never developed effective principles or strategies to prevent the overexploitation of stocks and has failed to impose responsibility for the regeneration of fish stocks on the industry. The Court of Justice has not provided coherence for the CFP, being more exercised by individual rights and the constitutionalisation of the law internally, and concerned not to tie the hands of legislators in external affairs. Although the EU Treaties require the integration of environmental protection in all Union policies and objectives, the CFP is not made subject to environmental provisions. In 2014 a reformed CFP came into effect through the 2013 Basic or Fisheries Regulation. However, as with previous iterations of the CFP, the new regulation will not be effective to overcome overexploitation.