Advancement of the Duty to Cooperate in Marine Environmental Protection in the Jurisprudence of ITLOS

The UN Convention on the Law of the Sea sets forth an unprecedented regime for marine environmental protection that compels parties to cooperate and includes mandatory dispute settlement procedures with binding decisions. Although the Convention does not contain a specific article stipulating a general duty to cooperate, cooperation permeates the logic of the document. The International Tribunal for the Law of the Sea (ITLOS) has recognised the importance of cooperation to marine protection and preservation in several cases. It could be suggested that the States Parties have a positive obligation to cooperate and a need to implement a range of actions to this end. ITLOS has consistently interpreted the duty to cooperate as comprising specific obligations: to consult, to exchange information, to monitor and assess relevant activities, to develop measures to prevent pollution or other environmental harm; which offers both the basis for the implementation of the duty to cooperate and the criteria for determining compliance.

International Protection of Foreign Investments in Offshore Energy Production and Marine Environmental Protection: Birds of a Feather or Frenemies Forever?

Initially, international investment law and international law on the protection of the marine environment were two branches that developed separately. As these international regimes mature, they often speak to the same facts, bringing about their ever-increasing normative interaction, way before any disputes arise. The regulation of investments in offshore energy production is chosen as a case study because it exemplifies how these two bodies of international law can interact. The article does not conceptualize these two international regimes as inherently antagonistic but instead highlights their potential complementarity. Yet, it is primarily the issue of normative conflicts between those two regimes which has generated heated scholarly debates. Against the backdrop of sweeping critiques about the potential ‘regulatory chill’ of international investment agreements and their investor-State dispute settlement mechanism, this contribution examines whether arbitral tribunals have interpreted and applied investment rules in a fashion that can unduly restrict the discretion of host States to honour their marine environmental obligations. First, it explores why and how international investment law and marine environmental law interact and influence each other’s implementation. In a second step, the article investigates the impact (if any) of investment obligations on the discretion of host States to comply with their marine environmental protection obligations. Adopting a forward-looking perspective, it finally enquires into the potential impact of the reformed provisions under new generation IIAs on the right and duty of States to take all necessary measures to protect the marine environment against pollution from offshore energy production activities.

Part VII Inter-linkages with Other Regimes, Ch.49 Energy

This chapter assesses the dominant narratives that emerge in discussion of energy and environment. One narrative is of energy activities as a pollution threat to be prevented, reduced, controlled, and eliminated. In another, more recent narrative, energy and environmental objectives are viewed more synergistically, and this is in the context of the role of energy—especially renewable energy and energy efficiency—in environmental protection and sustainable development. It is in the sustainable energy context that one sees some alignment, even convergence, of energy and environment. This convergence arises because environmental issues are increasingly drivers of energy law and policy, both nationally and internationally. In turn, response to the adverse impacts of energy activities is a key stimulus for the development of international environmental law, both substantively in fields such as nuclear energy and marine environmental protection, and procedurally, such as the duty to consult and to notify.

The Role of the Common Heritage Concept in Deep Seabed Mining

Chapter 3 evaluates the vital role of the common heritage in the deep seabed mining context. It does so by considering the historical application of the common heritage concept to deep seabed mining, together with the broader role of the concept within international law, including in relation to outer space and other global commons. Chapter 3 addresses the UNCLOS III negotiations, and the emergence of the common heritage approach to deep seabed mining as part of the movement for a New International Economic Order (NIEO), as well as the modifications achieved by the Agreement on the Implementation of Part XI of UNCLOS. This chapter distils the common heritage into its modern-day components in the deep seabed mining context, namely: common management, prohibition of unilateral mining activities, benefit sharing, marine environmental protection and the achievement of a balance between communitarian and capitalist concerns. It also sets out the study’s framework of analysis.

Does the Regime Secure the Common Heritage’s Benefit-sharing and Marine Environmental Protection Components?

Chapter 6 considers whether the continuing development by the International Seabed Authority (ISA) of the regulatory framework for deep seabed mining beyond national jurisdiction is on course to secure the common heritage’s main material components of benefit sharing and marine environmental protection, in the face of increasing corporate activity. It addresses the emerging regulatory regime provided in the Draft Exploitation Regulations in relation to the planned payment mechanism and the protection of the marine environment. As Chapter 6 explains, a key measure of the regime’s ability to secure the common heritage in these respects will be the extent to which it retains regulatory flexibility to adapt to new challenges. Chapter 6 also considers the existing framework for implementation, responsibility and enforcement, as underpinned by binding dispute resolution options. It concludes by assessing the position of corporate actors in terms of each of these aspects, as robust implementation options will be vital for achievement of the common heritage.

The Development of International Law of the Sea by International Courts and Tribunals

The development of international law of the sea by international courts and tribunals is generally acknowledged among international lawyers. In retrospect, the creative jurisprudence of international judicial bodies was incorporated into the mainstream of international law-making process in many cases, while the experience of failure cannot be ignored. In the past decade, the strengthening of marine environmental protection has become a tendency in international adjudication. Accordingly, the content and scope of due diligence obligation has been discovered, consolidated and extended. In light of the evolution of due diligence obligation, the methodology of law-making by international judicial bodies includes: inter alia, interpretation, cross-reference of precedents, analogy, and assertion. However, from the perspective of legitimacy, law-making should not become the normal function of international judicial bodies. Bearing in mind international rule of law and good administration of justice, the lawmaking activities of international courts and tribunals should be curtailed in certain degree.

Steel piles driving procedure and result analysis of extradosed Bridge Mainland - Pelješac

In order to meet the high requirements of marine environmental protection and Eurocodes, based on the actual construction conditions of deep water on site in Croatia, the extra-long steel pile foundation was adopted to Pelješac Bridge. At the meantime the corresponding extra-large scale pile driving barge had to be used to carried out during the construction. The pile bearing capacity was analyzed and checked by the actual measured PDA (Pile Driving Analyzer) data. The test results showed that the toe bearing capacity of driven piles had linear relationship with blow counts, and the penetration (displacement/blow) before the stoppage was inversely proportional to toe bearing capacity. In addition, the traditional empirical formula of long-term pile bearing capacity of driven piles was only suitable for the piles, which were shorter than 100m. The stoppage criteria of extra-long pile should concentrate on penetration firstly, while the pile design elevation was subsidiary factor. Therefore, the analysis of pile driving procedure and results could be considered as significant actual engineering reference for the coming works.