Dredge and fill regulatory constraints in meeting the ecological goals of restoration projects

Regulators face the problem of ensuring that wetland functions that are lost due to permitting actions are restored via mitigation of those impacts. While there has been considerable study of wetland function, little of it has been directed toward the practical assessment of mitigation success. Development of quantitatively based rapid assessment methods would provide valuable assistance to the regulatory community. Regional and local goal setting, including a determination of whether strict in-kind restoration or restoration of habitat balance is preferable, is needed to ensure that the ecological health of the area is restored to the greatest extent possible.     

The case in international law for Canada's extension of fisheries jurisdiction beyond 200 miles

In March 1995, Canadian fisheries authorities boarded and arrested the Spanish fishing vessel, Estai, outside the Canadian 200‐mile zone on the Grand Banks, an event that served to focus world attention on a dispute that had its origins in the failure of the 1982 United Nations Convention on the Law of the Sea to implement an effective conservation and management regime for fish stocks on the high seas, particularly with respect to fish stocks that straddle coastal states’ exclusive economic zones. This article examines the origins of the dispute, including the allegations relating to overfishing of North Atlantic Fisheries Organization‐recommended quotas, the background to the vessel's arrest, and the subsequent confrontation that occurred, both at diplomatic levels and on the high seas, between Canada and the European Union. An analysis is made of the case in international law for Canada's extension of jurisdiction beyond 200 miles pursuant to the provisions of Section 5 of the Coastal Fisheries Protection Act. Finally, the article examines the implications of the recently concluded Agreement on the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks for disputes of the kind that arose in the present case.     

Challenges to the Primary Jurisdiction of Flag States Over Ships

With the increasing emergence of substandard ships sailing under the flag state's ineffective control and the growing number of accidents that negatively affect the marine environment and the maritime order, port states, coastal states, and international organizations have begun to develop new regimes to increase their control over ships. As a result, the authority of flag states is increasingly being challenged, seemingly calling into question the primary jurisdiction and control of flag states over their ships. The aim of this article is to promote a better understanding of the relationship between flag state, coastal state, and port state control.     

Port-State Jurisdiction,Extraterritoriality, and the Protection of Global Commons

Port-state jurisdiction has been used as a means of circumventing the inadequacies of enforcement on the high seas and of flag states’ ineffectiveness, but also the absence of international rules due to lack of consensus at the international level. Pressing and complex problems related to the global environment and global commons, such as depletion of fisheries, marine and atmosphere pollution, and climate change, and foot-dragging in the international community to effectively cooperate to tackle these problems have brought the concept of unilateral regulation of extraterritorial activities to the forefront. In this respect, the role of the port state, as a first point of contact for industries engaged in activities harmful to the global commons (i.e., fishing and shipping), is increasingly important. This article examines the scope and limits of port-state jurisdiction with respect to measures that may have an extraterritorial impact in the light of the law of the sea and international rules on jurisdiction. The aim of the article is to assess whether the practice of port states in exercising jurisdiction has contributed to developments regarding the exercise of (extraterritorial) jurisdiction as a regulatory tool for the protection of global commons. By identifying elements of current state practice regarding exercise of port-state jurisdiction, the article advances a framework for the most effective exercise of port-state jurisdiction for the protection of global commons with reference to the principle of common concern.     

Article 297 of the United Nations Convention on the Law of the Sea and the Scope of Mandatory Jurisdiction

This article assesses the scope and content of the automatic exceptions contained in Article 297 of the UN Convention on the Law of the Sea to the compulsory procedures established in Section 2 of Part XV. The Convention's drafting history is examined with a view to determining the validity of the diametrically opposed readings of Article 297(1) endorsed by Annex VII Tribunals in the Southern Bluefin Tuna Award and the Chagos Marine Protected Area (MPA) Award. The interpretation favoured in the Chagos MPA Award—that mandatory jurisdiction is not restricted to the three cases expressly enumerated in Article 297(1)—is consistent with the textual evolution of Part XV. The article situates the approach adopted by the Chagos Tribunal within a wider normative tradition, which holds that adjudicative jurisdiction arises in default of positive textual authorzsation (unless it has been explicitly excluded). It is argued that this approach should be embraced by courts and tribunals when interpreting the Convention's provisions, as it accords with the drafters' aspirations and it serves to strengthen the international Rule of Law.     

国家管辖范围以外区域海洋生物多样性保护的新视域: 包括海洋保护区在内的划区管理工具

随着人类对海洋资源开发利用强度的增加, 海洋生物多样性的养护面临更大挑战。联合国大会决定在《联合国海洋法公约》框架下拟定一份新的法律文书, 以解决国家管辖范围以外区域海洋生物多样性(marine biological diversity of areas beyond national jurisdiction, BBNJ)的养护与可持续利用问题。包括海洋保护区在内的划区管理工具(area-based management tools (ABMTs), including marine protected areas (MPAs))是BBNJ国际文书谈判的一个重要议题。目前谈判尚处于早期阶段, 各国对ABMTs/MPAs缺乏共同的观点。本文通过分析ABMTs/MPAs的定义和内涵以及两者的异同点、目标、与现有相关法律文书、框架和机构的关系、一般原则和方法、现有框架以及面临的缺乏调查数据、缺失全球性法律框架以及缺少利益相关者参与等挑战, 提出需提高设立海洋保护区的科学性、建立有效的监测与执法机制以及加强国际合作等建议。     

我国深海微生物资源研发现状、挑战与对策

深海具有多种复杂独特的生境,蕴藏着极为丰富的物种多样性,被公认为未来重要的基因资源来源地,具有巨大的应用开发潜力。目前,深海微生物资源已成为国家重要的战略资源储备,也是各国海洋战略的核心关注点。预计在未来20年内,深海微生物资源将在多个领域得到产业化应用。我国在历时近二十年的深海微生物资源采探中,已分离鉴定并规范保藏大洋来源的菌株9 376株,分属于1 443个种444个属,实现了一定的资源积累,并快速提升了知识产权拥有量。但是,随着深海微生物资源获取和开发活动的快速发展,联合国大会"养护和可持续利用国家管辖范围以外海域的生物多样性"谈判进程趋紧,我国深海微生物资源领域依然存在采样区域较为局限、绝大多数微生物难以培养、资源量有待扩容、产业化推进机制缺失、知识产权占有量不足等问题。因此,本文认为应从加强政策引导、强化资源库的基础建设、建立产学研一体化机制、增强国际合作几个方面入手,实现我国深海生物资源产业由"跟跑者"到"领跑者"的跨越。     

Jurisdiction Over Underwater Cultural Heritage in the EEZ and on the Continental Shelf: A Perspective From the Practice of States Bordering the South China Sea

Abstract

The Chinese initiative of constructing the 21st Century Maritime Silk Road could be identified as a new chance to promote the protection of underwater cultural heritage (UCH) in the South China Sea. However, uncertainties concerning the jurisdictional issue over the UCH in the exclusive economic zone (EEZ) or on the continental shelf constitute an obstacle. The Convention on the Protection of Underwater Cultural Heritage has, to some extent, enlarged the coastal state’s jurisdiction. State practice differs on this issue. This article focuses on the domestic legislations of states bordering the South China Sea related to the jurisdiction over UCH found in their EEZ or on their continental shelf.     

A Note on the M/V “Louisa” Case

In the M/V “Louisa” case of 28 May 2013, the International Tribunal for the Law of the Sea held that it had no jurisdiction, even though it had established prima facie jurisdiction at the provisional measures stage. The M/V “Louisa” case thus gives rise to questions regarding the relationship between prima facie jurisdiction and jurisdiction on the merits. Moreover, the M/V “Louisa” Judgment also sheds some light on the applicability of the doctrine of abuse of rights provided in Article 300 of the UN Convention on the Law of the Sea.