Regional Co-Operation and Protection of the Marine Environment Under International Law Legal Aspects of Sustainable Development

Regional Co-operation and Protection of the Marine Environment Under International Law Legal Aspects of Sustainable Development

Series Editor David Freestone

This series publishes work on all aspects of the international legal dimensions of the concept of sustainable development. Its aim is to publish important works of scholarship on a range of relevant issues including conservation of natural resources, climate change, biodiversity loss and the role of international agreements, international organizations and state practice.

Volume 16

The titles published in this series are listed at: www.brill.com/lasd Regional Co-operation and Protection of the Marine Environment Under International Law

The Black Sea

By Nilufer Oral

Leiden • Boston 2013 Library of Congress Cataloging-in-Publication Data

Oral, Nilufer. Regional cooperation and protection of the marine environment under international law : the Black Sea / by Nilufer Oral. pages cm. – (Legal aspects of sustainable development) Includes index. ISBN 978-90-04-25085-7 (hardback : alk. paper) – ISBN 978-90-04-25086-4 (e-book) 1. Marine resources conservation – Law and legislation – Black Sea. 2. Marine pollution – Law and legislation – Black Sea. 3. Fishery law and legislation – Black Sea. 4. Black Sea – History. 5. Azov, Sea of (Ukraine and Russia) I. Title.

K3590.4.O73 2013 346.04’69164—dc23 2013013941

ISSN 1875-0923 ISBN 978-90-04-25085-7 (hardback) ISBN 978-90-04-25086-4 (e-book)

Copyright 2013 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers and Martinus Nijhoff Publishers.

All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher.

Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change.

This book is printed on acid-free paper. To my father and mother to whom I owe everything

Contents

Series Editor’s Preface ...... xiii Acknowledgments ...... xv Tables ...... xvii Maps ...... xix Abbreviations ...... xxi

Introduction ...... 1

Chapter I Historical Development of Regional Co-operation in the Black Sea ...... 17 1. Introduction ...... 17 2. The Black Sea: From Mare Clausum to Mare Sui Generis ...... 18 2.1 Black Sea as Mare Clausum ...... 18 2.2 The Black Sea as a Mare Shared ...... 19 2.3 Multilateralism in the Black Sea ...... 24 2.4 A Sui Generis Regime for the Black Sea ...... 26 3. The Historical Development of Regional Co-operation in Part IX of the 1982 LOSC ...... 28 3.1 The Soviet “Closed Sea” Doctrine ...... 28 3.2 Marine Regionalism in the Law of the Sea ...... 32 3.3 UNCLOS III ...... 33 4. Regional Co-operation in Part IX of the 1982 LOSC ...... 37 4.1 Sources of the Duty of Co-operation under International Law ...... 37 4.2 Judicial Interpretation of Article 123 ...... 40 5. Discussion ...... 42

Chapter II State of the Black Sea: The Making and Unmaking of a Sea ...... 45 1. Evolution of the Black Sea: From Sea to Lake to Sea ...... 45 1.1 Birth of a Sea ...... 45 1.2 Geomorphology of the Black Sea Today ...... 47 2. A Sea of Poison, a Sea of Life ...... 47 2.1 Anoxia ...... 47 2.2 Hydrogen Sulfide ...... 49 2.3 Extreme Life ...... 50 viii Contents

3. Decline of the Black Sea ...... 50 3.1 Eutrophication ...... 50 3.2 Introduction of Alien Species ...... 55 3.3 Atmospheric Input of Nutrients ...... 57 4. Marine Biodiversity and Fisheries in the Black Sea ...... 57 4.1 Overall Biodiversity ...... 57 4.2 State of Black Sea Fisheries ...... 58 4.3 Black Sea Marine Mammals ...... 61 5. Black Sea Habitats and Wetlands ...... 63 5.1 Black Sea Marine Habitat Destruction ...... 63 5.2 RAMSAR Wetlands in the Black Sea ...... 64 5.3 Ecosystem Value of the Black Sea ...... 65 6. Climate Change ...... 66 7. The Sea of Azov ...... 68 7.1 Background ...... 68 7.2 State of Biodiversity and Habitats ...... 69 8. Discussion ...... 70

Chapter III The Regional Legal Framework for the Protection and Preservation of the Black Sea Marine Environment ...... 75 1. Introduction ...... 75 2. Co-operation in the Protection of the Marine Environment under International Law ...... 76 2.1 The 1982 LOSC and Protection of the Marine Environment ...... 76 2.2 Regional Seas Model for Co-operation ...... 78 2.3 International Law Principles and Norms for Sustainable Governance of the Marine Environment ...... 79 3. Building Sustainable Governance in the Black Sea ...... 82 3.1 Early Efforts ...... 82 3.2 Regional Governance Framework for the Black Sea ...... 83 3.3 The 2007 Black Sea-TDA Legal and Institutional Analysis ...... 85 4. Legal Framework for Co-operation for the Protection of the Black Sea Marine Environment ...... 86 4.1 Obligations, Principles and Actions for Co-operation ...... 86 4.2 Institutional Framework for Co-operation ...... 94 4.3 Commission for the Protection of the Black Sea against Pollution ...... 95 4.4 BSEC, PABSEC, BSTDB and ICBSS ...... 97 4.5 Black Sea Non-Governmental Organizations (NGOs) ...... 100 Contents ix

5. The EU in the Black Sea ...... 103 6. Regional Seas Governance: A Comparative Analysis ...... 107 6.1 Mediterranean Sea ...... 107 6.2 The Baltic Sea – HELCOM ...... 110 6.3 The North-East Atlantic Sea – OSPAR ...... 114 7. Compliance Mechanisms under International Law ...... 117 8. Discussion ...... 120

Chapter IV Marine Biodiversity in the Black Sea ...... 127 1. Introduction ...... 127 2. The International Legal Framework for Protection of Biodiversity ...... 128 2.1 International Conservation Agreements ...... 128 2.2 Black Sea Implementation of ICAs ...... 133 2.3 1982 United Nations Law of the Sea Convention ...... 136 2.4 Convention on Biological Diversity ...... 138 3. International Principles for the Protection and Conservation of Biodiversity ...... 141 3.1 1992 United Nations Conference on Environment and Development: The “Rio” Framework ...... 141 3.2 Marine Spatial Planning as an Emerging Concept ...... 143 3.3 Implications for the Black Sea Regional Regime ...... 144 4. Regional Models for the Protection of Marine Biodiversity ...... 146 4.1 Regional Models and Standard Setting ...... 146 4.2 The SPAW Protocol for the Wider Caribbean Region ...... 146 4.3 The Mediterranean Sea and the 1995 SPAMI Protocol ...... 149 4.4 European Regional Approach to Protection of Biodiversity ...... 150 5. The Black Sea Regional Framework for Protection of Biodiversity ...... 152 5.1 Black Sea Strategic Action Plan ...... 152 5.2 The Bucharest Convention ...... 154 5.3 The Black Sea Biodiversity and Landscape Conservation Protocol to the Convention on the Protection of the Black Sea against Pollution ...... 156 5.4 Black Sea Biodiversity and Landscape Strategic Action Plan ...... 159 6. Discussion ...... 161 x Contents

Chapter V Sustainable Fisheries Governance and Regional Co-operation for the Black Sea ...... 167 1. Introduction ...... 167 2. Development of the International Framework for Co-operation for Management and Conservation of Fisheries ...... 169 2.1 UNCLOS III and Co-operation in Fisheries Conservation and Management ...... 169 2.2 Co-operation and Shared Fish Stocks ...... 170 3. Implementation of Sustainable Fisheries Governance ...... 173 3.1 Co -operation through Regional Fisheries Organizations .... 173 3.2 Principles of Sustainable Fisheries Management ...... 174 3.3 Compliance and Enforcement ...... 178 4. The State of Sustainable Fisheries Management in the Black Sea ...... 182 4.1 Background ...... 182 4.2 Draft Legally Binding Document for Fisheries and Conservation of the Living Resources of the Black Sea ..... 183 4.3 Applicable Principles or “Approaches” ...... 184 4.4 Co-operation under the Legally Binding Document ...... 185 4.5 The Institutional Structure ...... 187 4.6 Compliance and Enforcement ...... 187 5. Co-operation beyond the Black Sea ...... 189 5.1 Co-operation with the General Fisheries Commission for the Mediterranean Sea ...... 189 5.2 Co-operation with the European Union ...... 190 6. Discussion ...... 194

Chapter VI Land-based Sources of Pollution: The Black Sea and Beyond ...... 201 1. Introduction ...... 201 2. Global Legal Framework for Land-based Sources of Marine Pollution ...... 203 2.1 The Hard Law Framework of International Law for Land-based Pollution ...... 203 2.2 “Soft” but Firm Obligations, Principles and Standards at the Global Level ...... 205 3. UNEP Regional Seas Framework for Prevention of Land-based Pollution ...... 208 3.1 UNEP Regional Seas Programme and Land-based Sources of Pollution ...... 208 3.2 Applicable Principles ...... 209 Contents xi

4. European Union ...... 211 4.1 European Water Framework Directive ...... 211 4.2 Urban Wastewater Directive ...... 213 4.3 Marine Strategy Framework Directive ...... 214 5. The Black Sea ...... 215 5.1 Protocol on the Protection of the Black Sea Marine Environment against Pollution from Land-based Sources ...... 215 5.2 Co-operation between the Black Sea and Danube River Regimes ...... 220 5.3 Legal Framework of Co-operation ...... 222 5.4 Black Sea Ecosystem Recovery Project (BSERP) ...... 224 6. Discussion ...... 227

Chapter VII Vessel Source Pollution and Offshore Activities in the Black Sea ...... 233 1. Introduction ...... 233 2. The International Framework for Shipping ...... 237 2.1 The 1982 United Nations Convention for the Law of the Sea ...... 237 2.2 The International Maritime Organization (IMO) ...... 238 2.3 Black Sea Coastal States Implementation of International Conventions...... 242 3. Comparative Regional Seas Analysis Framework ...... 244 3.1 The Mediterranean Sea ...... 245 3.2 The Baltic Sea ...... 247 3.3 Bonn Agreement and OSPAR ...... 249 3.4 European Union ...... 252 4. Regional Framework for the Black Sea ...... 255 4.1 Emergency Protocol ...... 255 4.2 Dumping Protocol ...... 256 4.3 Offshore Activities ...... 256 5. Other Co-operative Tools for Regulating Vessel Source Pollution ...... 257 5.1 Port State Control ...... 257 5.2 Particularly Sensitive Sea Area (PSSA) ...... 258 5.3 PSSA in the Black Sea ...... 260 6. Discussion ...... 262

Chapter VIII Gaps, Lessons Learned and Recommendations ...... 267

Index ...... 289

Series Editor’s Preface

This is the sixteenth volume in the Martinus Nijhoff series on Legal Aspects of Sus- tainable Development published under my General Editorship. The aim of this series is to publish works at the cutting edge of legal scholarship that address both the practical and the theoretical aspects of this important concept. I am very pleased to be able to include this work by Dr. Nilufer Oral in this series. It is a revised version of her S.J.D. doctoral thesis at the George Washington Univer- sity Law School in Washington, D.C.; a study that was jointly supervised by Professor Lee Paddock and me. This important work must now be the definitive study of the complex legal framework governing the management of environment and natural resources in this unique marine ecosystem. As Dr. Oral explains, sitting as it does at the border of Europe and Asia, the Black Sea and its approaches have played a major part in the evolution of the laws of maritime passage. It has a more fundamental role in human history also, for its transformation, perhaps cataclysmic, some 12,000 years ago, from a lake into a semi-enclosed or regional sea may be the origin of the pervasive Great Flood myths. In the nineteenth century the Great Powers concerned themselves actively with passage through the Dardannelles and the narrow Bosphorus strait, and in recent times the Black Sea has been a case study in the adverse impacts of land based pollution and the introduction of exotic species. At one point the biomass of introduced jellyfish (mnemiopsis leidyi) was nearly ten times the annual global fish catch. The combination of these factors meant that in the 1990s, an environmental catastrophe was predicted. This seems to have been avoided, possibly because of collaboration, as Oral suggests, with the International Commission for the Protection of the Dan- ube River (ICPDR) under the Black Sea Ecosystem Recovery Project funded by the Global Environment Facility. Nevertheless a lot remains to be done; major threats are still presented by overfishing, from vessel source pollution and the prospect of increasing off-shore oil and gas exploration and exploitation suggests the need for a new instrument for this also. Dr. Oral talks us authoritatively through the wealth of existing legal instruments, most of which still need effective implementation; a great deal of work still remains. I am delighted to include this volume in the series. It presents a comprehensive assessment of the international legal regime surrounding a unique and important regional marine ecosystem and more than meets the requirement of being at “the cutting edge of legal scholarship that address both the practical and the theoretical aspects” of sustainable development.

David Freestone Washington DC

Acknowledgments

Research and writing is often a solitary endeavour but this study could not have been completed without the encouragement and support of dear friends, colleagues, mentors and libraries. In particular I must express my deepest appreciation to my advisors, Lee Paddock and David Freestone from George Washington University Law School, without whose learned guidance I could not have completed this study. I also thank Dinah Shelton for her insightful comments which enriched this study, Dean Susan Karamanian, and the very helpful librarians at the George Washington Jacob Burns Law Library. I am eternally grateful to the late Gündüz Aybay from whom I learned so much. I also owe much gratitude to my close friends who never lost faith and gave their encouragement and support: in particular Yolande Schumacher, Eddy Lessandrini, Ruth Eastlack, Jill Schlichtmann, Cherie Bobbe, Anna Karydas, Lindy Koll, David Lee, Rob Baine, David Rompf, Joan Markoff and Tineke Sokmen-Vanderloon. I must also thank Harry Scheiber from the University of California Berkeley, Boalt School of Law for his friendship and providing me generous access to library facilities. I also thank Violeta Velikova formerly of the Black Sea Commission Permanent Secretariat for her invaluable insights, and providing me with documents, Ahmet Kideys the former Executive Director of the Black Sea Permanent Secretariat and Irina Makerenko. Additional thanks are owed to Annabeth Rosenbloom formerly of Martinhus Nijhoff and now Senior Legal Officer at the United Nations Division for Oceans Affairs and Law of the Sea for encouraging me years ago to write a book on the Black Sea, and my current editors at Brill, Marie Sheldon and Karen Cullen. Over the years the Law of the Sea Institute at the University of Virginia, John Norton Moore and Myron Nordquist have generously extended their support in my studies and including access to the University of Virginia Law School library. And lastly, I thank Istanbul Bilgi University, my colleagues and the law school Dean, Turgut Tarhanli, for their support over the years.

Tables

Table 1. Timeline for the Formation of the Black Sea ...... 46 Table 2. Black Sea Hotspots ...... 52 Table 3. Average Biomass of Phytoplankton in the Black Sea ...... 53 Table 4. List of Alien Species Introduced in the Black Sea in the 20th Century ...... 57 Table 5. Black Sea Biological Species ...... 58 Table 6. Ramsar Convention Status for the Black Sea Coastal States ...... 65 Table 7. Black Sea States Ratification of Climate Change Instruments ...... 68 Table 8. 1996 Black Sea-SAP as Amended in 2002, Commitments for Vessel Source Pollution ...... 93 Table 9. 1996 Black Sea-TDA and Status of Corresponding Instruments as of 2012 ...... 93 Table 10. Black Sea Advisory Groups ...... 97 Table 11. Mediterranean Sea Regional Sea Instruments ...... 111 Table 12. Measures Adopted by the Helsinki Programme ...... 113 Table 13. Ratification of International Conservation Agreements by Black Sea States ...... 132 Table 14. Black Sea Ramsar Convention Status ...... 133 Table 15. Comparison of Regional Seas Land-based Pollution Protocols ...... 220 Table 16. IMO Conventions Ratification Percentage ...... 243 Table 17. Marpol 73/78 and Annexes for the Black Sea States ...... 243 Table 18. IMO Conventions ...... 244

Maps

Map 1. Black Sea Wetlands in 1996 ...... 65 Map 2. Existing and Proposed Marine Protected Areas for Cetaceans in the Black Sea and the Mediterranean ...... 135 Map 3. Location of Zernov’s Large Phyllophora Field Botanical Reserve ...... 161 Map 4. Northeast Atlantic Sea (OSPAR) Particularly Sensitive Sea Areas, Special Areas under MARPOL and SOx Emission Control Areas in the Northeast Atlantic OSPAR Maritime Area ...... 252

Abbreviations

ACCOBAMS Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area ASCOBAMS Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas. AIS Automated Information Systems APM Associate protective measures BAT Best available technologies BEP Best environmental practice BMW International Convention for the Control and Management of Ships’ Ballast Water and Sediments BSBLCP Black Sea Biodiversity and Landscape Protocol BLACK SEA-SAP Black Sea Strategic Action Plan BSC Black Sea Commission BSEC Organizations for Black Sea Economic Co-operation BSERP Black Sea Environmental Rehabilitation Programme BS-TDA Black Sea Transboundary Diagnosis BSTDB Black Sea Trade and Development Bank CBD Convention on Biodiversity CCMLR Convention for the Conservation of Antarctic Marine Living Resources CFP Common Fisheries Policy CITES Convention on International Trade in Endangered Species and Wild Fauna and Flora CLC International Convention on Civil Liability COM Communication (EC) COP Conference of the Parties DRPC Danube River Protection Convention EC European Commission ECE Eastern and Central European ECOQOS Ecosystem quality objectives EEZ Exclusive Economic Zone EMSA European Maritime Safety Agency ENP European Neighborhood Policy EU European Union FAO United Nations Food and Agriculture Agency FPA Fisheries partnership agreement FSA United Nations Agreement for the Implementation of the Provi- sions of the United Nations Convention on the Law of the Sea of xxii Abbreviations

10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks FUND International Fund for Compensation for Oil Pollution Damage GEF General Environmental Fund GFCM General Fisheries Commission for the Mediterranean GPA Global Programme of Action for the Protection of the Marine Environment from Land-based Activities GPS Geographic position system HELCOM Helsinki Commission ICA International Conservation Agreement ICBS International Center for Black Sea Studies ICJ International Court of Justice ICPDR International Commission for the Protection of the Danube River ICZM Integrated Coastal Zone Management ILR International Law Reports ILM International Legal Materials IMO International Maritime Organization IMP Integrated Maritime Policy IRBM Integrated river basin management ITLOS International Tribunal for the Law of the Sea ITOPF International Tanker Owners Pollution Federation IUCN International Union for the Conservation of Nature IUU Illegal, Unregulated and Unreported JPOI Johannesburg Plan of Implementation KM Kilometer LBD Legally Binding Document LBS Land-based sources LOSC 1982 United Nations Law of the Sea Convention LRIT Long Range Information Tracking MAMA Most appropriate management approaches MARPOL International Convention for the Prevention of Pollution From Ships MAP Mediterranean Action Plan MAT Most appropriate technology MCSD Mediterranean Commission on Sustainable Development MEA Multilateral environmental agreement MOU Memorandum of understanding MSFD Marine Strategy Framework Directive MSP Marine spatial planning MSSD Mediterranean Strategy for Sustainable Development Abbreviations xxiii

NGO Non-Governmental Organization NM Nautical mile NWS Northwest Shelf OJ Official Journal (EC) OSPAR Oslo and Paris Commissions OPRC International Convention on Oil Pollution, Preparedness, Response and Co-operation PABSEC Parliamentary Assembly of the Black Sea Economic Co-operation PSC Port State Control PSSA Particularly Sensitive Sea Area RAC Regional Advisory Councils RAC-SPA Regional Activity Center for Specially Protected Areas (Mediter- ranean Sea) REMPEC Regional Marine Pollution Emergency Response Centre for the Mediterranean Sea RFMO Regional Fisheries Management Organizations ROCC Regional Oil Combating Centre for the Mediterranean Sea SBSTTA Subsidiary Body on Scientific, Technical and Technological Advice SOLAS International Convention for the Safety of Life at Sea Convention SPAMI Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean SPAW Protocol Concerning Specially Protected Areas and Wildlife (Wider Caribbean) STECF Scientific, Technical and Economic Committee for Fisheries TAC Total allowable catch TEV Total Environmental Value UN United Nations UNEP United Nations Environmental Programme UNCED United Nations Conference on the Environment and Development UNCLOS 1982 United Nations Convention on the Law of the Sea UNCLOS I First Law of the Sea Conference UNCLOS III Third Law of the Sea Conference UNGA United Nations General Assembly UNTS United Nations Treaty Series USSR Union of Soviet Socialist Republics US United States of America UWW Urban Waste Water VMS Vessel Monitoring System xxiv Abbreviations

VTMIS Vessel traffic monitoring information systems WCLBS Protocol Concerning Pollution From Land-Based Sources and Activities to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region WFD Water Framework Directive WHC World Heritage Convention WHO World Health Organization WSSD World Summit on Sustainable Development Introduction

1. Background

Bordering the Asian and European continents the Black Sea has a total coastline of 4340 kilometers (km).1 It is bordered by six States: Bulgaria, Georgia, Romania, the Russian Federation, Turkey and Ukraine. Without the narrow connection to the Mediterranean Sea provided by the Turkish Straits,2 the Black Sea would have been a land-locked sea basin like the Caspian. Over the past twenty years the Black Sea region has undergone significant politico-socio-economic changes. With the exception of Turkey the remaining five Black Sea States were members of the former Union of Soviet Socialist Republics (USSR), which was formed in 1922 and dissolved in 1991.3 After the dissolution of the USSR the former socialist states, whose economies had practically collapsed, were expected to transform from highly regulated centralized political systems with state controlled economies into free-market based capitalist democracies.4 Perhaps one of the most significant changes to take place since 1991 was the accession of Bulgaria and Romania to the European Union on 1 January 2007, which marked an historic integration between former cold war adversaries.5 In terms of overall size Russia is the largest of the Black Sea States with a total area of 17,098,242 km2 and an estimated population of 138,082,178.6 However, the Russian Black Sea coastline is relatively short measuring only 475 km in length.7 Georgia, the smallest of the Black Sea coastal States has a total area of 69,700 km²

1 Global Environmental Facility/Black Sea Environmental Programme, Black Sea Transboundary Diagnostic Analysis, 1 (May 2007). (Hereinafter “2007 Black Sea-TDA”). 2 The Turkish Straits include the Strait of Istanbul, a narrow channel of water connecting the Black Sea to the Turkish Sea of Marmara and the Strait of Çanakkale that connects the Sea of Mar- mara to the Aegean Sea. See in general Nihan Ünlü, The Legal Regime of the Turkish Straits (2002); Christoph L. Rozakis & Petros N. Stagos, The Turkish Straits (1987). 3 The former Union of the Socialist Soviet Republics (USSR) was dissolved on December 8, 1991. See Stephen Cohen, The Soviet Union’s After Life, The Nation, Jan. 16, 2012, at 14, 14–17. Many of the former Soviet Republics became independent states, including the Russian Federation. See Politics of the Black Sea 133–161, 135 (Tunç Aybak, ed., 2001); Hedrick Smith, The New Russians (1991). 4 Smith, The New Russians, Id. 5 Bulgaria and Romania became full members to the European Union on 1 Jan. 2007. See Treaty concerning the accession of the Republic of Bulgaria and Romania to the European Union, signed in Luxembourg on 25 April 2005. 2005 O.J. (L 157) 394. 6 Central Intelligence Agency (CIA) World Fact Book, available at https://www.cia.gov/library/ publications/the-world-factbook/geos/rs.html. 7 2007 Black Sea – TDA, supra note 1.

Nilufer Oral, Regional Co-operation and Protection of the Marine Environment Under International Law, pp. 1–15. ©2013 Koninklijke Brill NV, The Netherlands. ISBN 978-90-04-25085-7. 2 Introduction and an estimated population of 4.7 million.8 The length of its coastline on the Black Sea is 310 km.9 The total area of Ukraine is 603,550 km² with an estimated population of 44,854,065.10 Ukraine has the lengthiest coast on the Black Sea measuring 1628 km.11 Bulgaria has a total area of 110,879 km² and a population of 7,037,935.12 The length of its Black Sea coast is 354 km.13 Romania has a total area of 238,391 km² and an estimated population of 21,848,504.14 The length of its Black Sea coast is 225 km.15 Turkey has a total area of 783,562 km² and an estimated population of 79,749,461.16 The length of its Black Sea coast is 1,400 km. The end of the USSR lifted the “iron curtain” from the Black Sea and revealed a marine ecosystem on the precipice of environmental collapse. Among the important actions taken by the international community following the dissolution of the former USSR was to address the decades of environmental degradation of the Black Sea from human activities. In 1992 the Black Sea Regional Seas Programme was established under the auspices of the United Nations Environmental Programme.17 This event marked a significant undertaking in the Black Sea establishing a broad regional framework for co-operation for protection of the marine environment.18 However, after twenty years, the efforts to develop a strong legal framework for regional co- operation for the protection of the Black Sea marine environment produced mixed results. On the positive side, there had been some progress made in developing legal instruments to fill gaps or respond to scientifically identified needs. But the progress was slow and implementation even slower. This in turn left the Black Sea regional regime legally weak and inadequate to address the outstanding environmental challenges. While some signs of ecological improvement were recently observed in the Black Sea, the overall state of the marine environment remains impaired. Although many of the elements of a legal framework that could effectively protect the Black Sea have been developed in agreements affecting the Black Sea, many of these agreements have not yet come into effect or are poorly implemented. In addition, other important innovations for protecting regional seas that have been implemented for

8 Id. https://www.cia.gov/library/publications/the-world-factbook/geos/gg.html. 9 https://www.cia.gov/library/publications/the-world-factbook/geos/up.html. 10 Id. 11 Id. 12 Central Intelligence Agency (CIA) World Fact Book, available at https://www.cia.gov/library/ publications/the-world-factbook/geos/bu.html. 13 Id. 14 Central Intelligence Agency (CIA) World Fact Book, available at https://www.cia.gov/library/ publications/the-world-factbook/geos/ro.html. 15 Id. 16 Central Intelligence Agency (CIA) World Fact Book, available at https://www.cia.gov/library/ publications/the-world-factbook/geos/tu.html. 17 For detailed information on the UNEP Regional Seas Programme see website at http://www .unep.org/regionalseas/. 18 During the same period the Organization for Black Sea Economic Cooperation (“BSEC”) was established, the objective of which was to foster economic cooperation among the wider Black Sea region of States. See Charles King, The Black Sea a History 242 (2004). Introduction 3 the Baltic Sea, the Mediterranean Sea and other regional seas could be applied in the Black Sea.

2. Objective

This study examines the regional co-operation mechanism for protection and preservation of the Black Sea marine environment within the framework of international law, and identifies the necessary components for a robust regional regime based on modern principles and approaches of international law, representing “best legal practices,” as developed in various international and regional instruments and state practice. Additionally, gaps in the implementation of obligations are also highlighted with suggestions as to how these may be addressed. Four main thematic areas are examined; biodiversity, fisheries, land-based pollution and vessel-based sources of pollution. The study first examines regional co-operation in the Black Sea from an historical perspective, linking it to the development of regional co-operation in international law and in particular Part IX of the 1982 United Nations (Montego Bay) Convention on the Law of the Sea.19 A comparative study is undertaken of the existing regional regime of the Black Sea as established under the 1992 UNEP Regional Seas Programme against the international legal framework for protection of marine biodiversity, sustainable fisheries, land-based sources and vessel-sources of pollution, and offshore activities. Next, where relevant, comparative analysis is done of selected regional seas programmes, including the acquis communautaire of the Euro- pean Union, that have incorporated the emerging principles and approaches for regional co-operation in the protection of marine environmental. The comparative analysis serves to also shed light on the overall UNEP Regional Seas Programmes, which remains as the principal international mechanism for promoting co-operation in enclosed and semi-enclosed seas. This study of regional co-operation in the Black Sea concludes with a detailed discussion of its findings and recommendations.

3. Historical Development of Regional Co-operation

Regional co-operation among states bordering a common sea in international law can be traced to the history of political conflict to control the Black Sea. Begin- ning in the fifteenth century the Black Sea was a mare clausum under the exclusive control of the Ottoman Empire.20 However, during the following three centuries

19 United Nations Convention on the Law of the Sea, (Montego Bay), 10 Dec. 1982, 1833 U.N.T.S. 3 (hereinafter “1982 LOSC”). 20 Franz Babinger, Mehmed the Conqueror and His Time (William Hickman ed., Ralph Man- heim transl., Princeton University Press 1978) (1953); Lord Kinross, The Ottoman Centuries the Rise and Fall of the Turkish Empire (1977); Jason Goodwin, Lord of the Horizon a History of the Ottoman Empire, (1998). 4 Introduction a hegemonic struggle developed between the Russian Empire and the Ottoman Empire over navigational access to the Black Sea and the Turkish Straits. Beginning in the 17th Century under the rule of Peter the Great, Czarist Russia began its quest for unimpeded access for its merchant vessels into the warms waters of the Medi- terranean. More importantly Russia wanted free access for its war vessels into the Black Sea and the strategic Turkish Straits (“Bosphorus”) so as to pursue its own territorial ambitions beyond the Black Sea.21 The stage for an historical rivalry was set as Russian expansionist ambitions posed a direct threat to the hegemony of the Ottoman Empire both in the Black Sea and the Mediterranean. However, in time, facing a common enemy, the approaching threat of Napoleon Bonaparte in 1798 and 1805 resulted in the first Black Sea treaties of regional cooperation between the Ottoman and Russian Empires.22 The “regional co-operation” between the two Black Sea Empires extended to granting broad navigational and trade rights to Russian merchant vessels in the Black Sea under the 1833 Hunkâr Iskelesi Treaty.23 Over the ensuing decades up until the First World War, the legal regime of the Black Sea in conjunction with the Turkish Straits would be the subject of a number of multilateral agreements.24 The question of the legal status of the Black Sea re-emerged during the 1923 Lausanne Peace Conference negotiations on the Straits,25 which followed the Turkish War of Independence and again later during the 1936 Montreux Conference.26 The Soviet Union in both cases asserted that the Black Sea was a “closed sea” with limited

21 Robert K. Massie, Peter the Great: His Life and World (1972); John Arthur Ransome Marriott, The Eastern Question: An Historical Study of European Diplomacy (1918); James T. Shotwell & Francis Deak, Turkey at the Straits (1941); Lavender Cassels, The Struggle for the Ottoman Empire 1717–1740 (1966). 22 Sergei Goriainow, Le Bosphore et les Dardanelles Étude Historique sur la Question des Détroits 4 (1910); Maria Papouktchieva, La Politique de la Russie a l’egard des Détroits (1944); M.L. Harvey, The Development of Russian Commerce on the Black Sea and its Sig- nificance 17 (1938) (unpublished Ph.D. dissertation, University of California, Berkeley) (on file with the University of California, Berkeley library); Jacob Coleman Hurewitz, Russia and the Turk- ish Straits A Reevaluation of the Origins of the Problem 14 WORLD POL. 605 (1961–62). 23 1833 Treaty of Defensive Alliance, 26 June (8 July) 1833, also known as the Hünkâr Iskel- esi Treaty, reprinted in Clive Parry, The Consolidated Treaty Series, Vol. 84, 1 [Hereinafter “Parry’s Treaty Series”]. 24 See Chapter 1. 25 Convention Relating to the Regime of the Straits, 24 July 1923, Lausanne, reprinted in 18 AM. J. INT’L L. 53 (1924) (Hereinafter the “Lausanne Treaty”). See also, Cemal Bilsel, International Law in Turkey, 38 AM. J. INT’L L. 546, 550–552 (1944); A.L. Macfie, The Straits Question 181–211 (1993). 26 In general see, Ferenc A. Váli, The Turkish Straits and Nato 32 (Hoover Institution Press, Stanford, 1972); Christoph L. Rozakis & Petros N. Stagos, The Turkish Straits (1987); A.R. Deluca, Great Power Rivalry at the Turkish Straits: The Montreux Conference and Convention of 1936 (1981); Nihan Ünlü, The Legal Regime of the Turkish Straits (2002). Introduction 5 access to the Sea for non-Black Sea States.27 Both the 1923 Lausanne Treaty28 and the 1936 Montreux Convention29 established a legal regime for the Black Sea and Turkish Straits that has no parallel with any other sea,30 but more importantly for the purposes of the law of the sea, sowed the early seeds of what would eventually become the principle of regional co-operation under Part IX of the 1982 LOSC.31 The concept of a special regime for states bordering an enclosed or semi-enclosed sea would eventually find expression in Part IX, on enclosed or semi-enclosed, articles 122–123 of the 1982 LOSC. The legal evolution of co-operation in the Black Sea was rooted in centuries of struggle for navigational access to the Black Sea and Straits, protection of the sea against “enemies,” control of the sea to protect the interest of the Great Powers of Europe, and eventually, for protection of the sea itself. Paradoxically, the sea that for centuries had nurtured political and economic rival- ries, faced with environmental collapse succeeded in bringing together these same once fractionalized countries. In 1992, for the first time in its long conflict-ridden history, protection of the Black Sea marine environment created the bond of co-operation that brought all six of the Black Sea countries to the table to sign the Convention for the Protection of the Black Sea Against Pollution (Bucharest Convention).32 The Bucharest Convention was the very first operational Black Sea regional convention. In 1992 the Black Sea had augured a new chapter of regional co-operation that was held together by the single thread of a shared concern for the protection and preservation of the marine environment. Whether this nascent regional co-operation could reverse what appeared to be an ineluctable force of environmental degradation was a challenge at several levels, including for international law.

4. State of the Black Sea Environment

The unique geomorphology and ecological character of the Black Sea resulted from millions of years of evolution and the movement of tectonic plates altered its identity

27 Seha L. Meray, Lozan Bariş Konferansi Tutanaklar Belgeler, 44–70 (Istanbul, 1969, in Turkish). (Transl. The Lausanne Peace Conference Proceedings Documents). 28 Treaty of Peace With Turkey and Other Instruments, signed at Lausanne on July 24, 1923, Great Britain Treaty Series No. 16 (1923), Cmd. 1929, 109. 29 Convention Regarding the Regime of the Straits, 20 July 1936 (Hereinafter the “Montreux Convention”) reprinted in 31 AM. J. INT’L L. 1 (1937). 30 Erik Brüel, International Straits a Treatise on International Law, 409 (1947); Roza- kis & Stagos, The Turkish Straits supra note 26; Sevin Toluner, Rights and Duties of Turkey Regarding Merchant Vessels Passing the Straits, 27–33 in Turkish Straits: New Problems New Solutions (1995). 31 For a background on Part IX of the 1982 LOSC, see, United Nations Convention on the Law of the Sea 1982 – A Commentary, Vol. III, 344 (Satya Nandan & Shabtai Rosenne eds., 1995). 32 Convention for the Protection of the Black Sea Against Pollution (and Protocols), Bucha- rest, 21 Apr. 1992, 32 I.L.M. 1101 (Entered into force 15 January 1994). (Hereinafter the “Bucharest Convention”). 6 Introduction between sea and lake.33 Saved from the fate of complete enclosure by the very narrow connection provided by the Turkish Straits, the Black Sea is the world’s largest natural anoxic sea where ninety percent of the sea is engulfed by poisonous hydrogen sulfide. The rich biodiversity that once flourished in the Black Sea managed survival in a slim surface margin of water.34 Unfortunately, as a result of industrialization and chemically based farming, by 1990 reports showed that the Black Sea marine environment was on the precipice of ecological disaster.35 Scientists who studied the environmental degradation of the Black Sea during the 1990s described it with adjectives such as disaster,36 doomed,37 crisis38 and catastrophic.39 The number of commercial fish species had decreased from twenty- six to a mere five, and the once familiar Black Sea monk seal (Monachus monchus) had virtually disappeared. The Black Sea was being ravaged by the pollution resulting from decades of uncontrolled industrialization, release of pesticides and toxic substances from agricultural and industrial runoff, unregulated domestic sewage releases, unregulated dumping, unsustainable fishing practices, the release of harmful exotic species from ship ballast water and other sources of vessel-source pollution. The challenge of addressing environmental degradation was exacerbated

33 Yuvenaly Zaitesev & Vladmir Mamev, Biological Diversity in the Black Sea: a Study of Change and Decline, Black Sea Environmental Series, Vol. 3 (1997); A.E. Aksu, Persistent Holocene Outflow from the Black Sea to the Eastern Mediterranean Contradicts Noah’s Flood Hypothesis, 12 GSA Today 4 (2002); A.E. Aksu, R.N. Hiscott, M.A. Kaminski, P.J. Mudie, H. Gillespie, T. Abrajano & D. Yaşar, Aspects of carbon isotope biogeochemistry of late Quaternary sediments from the Marmara Sea and Black Sea, 190 Marine Geology 151–164 (2002); A.E. Aksu, R.N. Hiscott, M.A. Kaminski, P.J. Mudie, H. Gillespie, T. Abrajano & D. Yaşar, Last glacial – Holocene paleoceanography of the Black Sea and Marmara Sea: stable isotopic, foraminiferal and coccolith evidence, 190 Marine Geology, 119–149 (2002). 34 Robert D. Ballard, D.F. Coleman, and G. Rosenberg, Further evidence of abrupt Holocene drowning of the Black Sea shelf ”, 170 Marine Geology 253–261 (2000); R.D. Ballard, D.F. Coleman & G. Rosenberg, Erratum to Further evidence of abrupt Holocene drowning of the Black Sea shelf, 170 MAR. GEOLOGY 253–261 (2000); W.B.F. Ryan and W. Pitman, An Abrupt Drowning of the Black Sea Shelf, 138 MAR. GEOLOGY 119–126 (1997); Yuvenaly Zaitsev, Impact of Eutrophication on the Black Sea fauna, in Fisheries and Environment Studies in the Black Sea System, 73, (General Fisheries Council for the Mediterranean, FAO no. 64, 1993). 35 Laurence D. Mee, Can the marine and coastal environment of the Black Sea be protected, in Politics of the Black Sea 133–161, 135 (Tunç Aybak, ed., 2001); M. Kotlyakov & A.F. Mandych, Current Trends and Environmental issues of the Black Sea Regional Development, in Conservation of the Biological Diversity as a Prerequisite for Sustainable Development in the Black Sea 42 (V. Kotlyakov, M. Uppenbrink and V. Metreveli, eds., 1998). 36 M.E. Vinogradov, N.P. Nezlin & A.S. Mikelyan, Ecosystem sustainability of Open Black Sea Regions, in Conservation of the Biological Diversity as a Prerequisite for Sustainable Development in the Black Sea 201 (V. Kotlyakov, M. Uppenbrink and V. Metreveli, eds., 1998). 37 A. Konsulov, T. Konsulova, K. Prodanov, S. Moncheva, K. Dencheva, A. Velikov & L. Kamburska, Bulgarian Coast Black Sea Biodiversity, in, Conservation of the Biological Diversity as a Prerequisite for Sustainable Development in the Black Sea. Id. 38 M. Kotlyakov & A.F. Mandych, Current Trends and Environmental issues of the Black Sea regional development, supra note 35, at 42. 39 M.-T. Gomoiu, Some Remarks Concerning the Evaluation of Ecological Diversity of the Roma- nian Black Sea Coast Region, Id., at 79. Introduction 7 by significant transboundary sources of pollution; in particular from the Danube River Basin. The first Black Sea Transboundary Diagnostic Analysis, completed in 1996 (“1996 Black Sea-TDA”),40 identified seven major problems facing the Black Sea environment: the decline in Black Sea commercial fish stocks, loss of habitats, loss of endangered species and their genomes, introduction of exotic species, degradation of the Black Sea landscape, accidental maritime pollution and polluted beaches. It also provided a list of advised actions and milestones for the six Black Sea coastal States. In 2007 the second Black Sea-TDA was completed, this time narrowing the problems to four categories of priority problems: Eutrophication/nutrient enrichment, changes in marine living resources, chemical pollution (including oil); and biodiversity/habitat changes, including alien species introduction.41 This analysis served as the foundation for the 2009 Black Sea Strategic Action Plan (2009 Black Sea-SAP).42 While the scientific studies showed some signs of improvement the studies ultimately concluded that the legal framework of regional co-operation needed to be strengthened.

5. Regional Legal Framework for Co-operation for the Protection and Preservation of the Black Sea Marine Environment

The UNEP Regional Seas Programmes, with thirteen regional seas programmes under its auspices and five partner programmes, provides the international institutional and governance framework for regional co-operation dedicated to the protection and preservation of the marine environment.43 The Black Sea became part of the UNEP Regional Sea Programme in 1992. More importantly, the establishment of this Programme marked a critical turning point from the international conflict during the Cold War to a new spirit of cooperation. Regional co-operation for the protection and preservation of the Black Sea marine environment, as codified in Part IX on enclosed or semi-enclosed seas of the 1982 LOSC, became the principal link among the six Black Sea coastal States and the broader Black Sea region. This regional co-operation continued even during periods of political tension and conflict.44

40 Black Sea Environmental Programme, The Black Sea Transboundary Diagnostic Analysis (1997), 22 June 1996 (Hereinafter “1996 Black Sea-TDA”). 41 2007 Black Sea-TDA, supra note 1. 42 Commission for the Protection of the Black Sea Against Pollution, Strategic Action Plan for the Environmental Protection and Rehabilitation of the Black Sea, adopted 17 April 2009, replacing the Strategic Action Plan for the Rehabilitation and Protection of the Black Sea, 1996. (Hereinafter “2009 Black Sea-SAP”). 43 Supra note 17. 44 For example, the division of the Black Sea Naval Fleet was one of the first sources of tension between Ukraine and Russia immediately following the dissolution of the former USSR. The Black Sea Fleet naval yard was located in Sevastopol a city in Ukraine. James Sherr, Russia‐Ukraine rap- prochement?: The Black Sea Fleet Accords, 39 Survival 33–50 (1997); Following the dissolution a 8 Introduction

The creation of a functioning and effective regional regime of environmental governance is the key to any hope of environmental recovery of the Black Sea. This effort would require close intraregional co-operation among the six Black Sea coastal States, as well inter-regional co-operation with neighboring regions, and also with the international community and organizations. In force as of 1994, under the auspices of the UNEP and its Regional Seas Pro- gramme, Turkey, the Russian Federation, Ukraine, Romania, Bulgaria, and Georgia signed the Bucharest Convention.45 The effectiveness of the existing regional system of governance for the protection and preservation of the Black Sea as adopted under the Bucharest Convention can be assessed based on the review of two principal sets of legal indicators. The first set of indicators gauges the level of adoption and implementation of accepted norms of modern international environmental law by the Bucharest regime. The second set of indicators uses a comparative approach to assess the Black Sea regional regime for the protection and preservation of the marine environment with other developed regional seas regimes, such as the Bal- tic Sea, the Mediterranean, the Wider Caribbean Region and the Northeast Atlantic Sea. The regional programmes in these seas are well established and well developed. They have incorporated the latest developments in international law for the protection of the marine environment. The broader reach of inter-regional co-operation for the protection of the Black Sea has also extended to the European Union, especially following the accession of Bulgaria and Romania to the EU in 2007 and the candidacy of Turkey.46 The incorporation of EU policy and regulatory framework; in particular, the Water Framework Directive (WFD),47 the Marine Strategy Framework Directive (MSFD),48 and the Erika packages for shipping,49 will likely prove to be influential in the development of the regime for the protection of the Black Sea marine environment.

delimitation dispute arose between Ukraine and Russia over the Kerch Straits in the Sea of Azov. See Alexander Skaridov, International Legal Aspects of Navigation in the Kerchensky Strait, in The Proceedings of the Symposium on the Straits Used for International Navigation 42–53 (Bayram Özturk & Resad Özkan, eds., 2002); In 2008 an armed conflict arose between Russia and Georgia over South Ossetia. Charles King, The Five Day War: Managing Moscow after the Georgia Crisis, 87 Foreign Affairs 2 (2008). 45 Supra note 32. 46 Supra note 5. 47 Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policy, 2000, O.J. (L 327) 1–73, (Hereinafter the “WFD”). 48 Council Directive 2008/56/EC establishing a framework for community action in the field of marine environmental policy (hereinafter “MSFD”), 2008 O.J. (L. 164), 19. 49 Commission communication of 21 March 2000 to the European Parliament and the Council on the safety of the seaborne oil trade, COM (2000) 142 final; Communication from the Commission to the Council and the European Parliament of 6 December 2000 on a second set of Community measures on maritime safety following the sinking of the oil tanker Erika COM (2000) 802 final; and A Communication from the Commission: The third set of Community legislative measures in favor of maritime safety, COM (2005) 585 final. Introduction 9

6. Protection of Marine Biodiversity in the Black Sea

The loss of marine biodiversity was highlighted in the 1996 Black Sea-TDA.50 In addition, the 1996 Black Sea Strategic Action Plan (Black Sea-SAP)51 called for the adoption of a protocol for the protection of biodiversity in the Black Sea.52 Inter- national law for the protection of biodiversity has evolved over decades beginning with the foundational series of international conservation agreements adopted during the 1970s.53 However, it was the historic 1992 United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro54 where the holistic concept of “biodiversity” was developed and the 1992 Convention on Biological Diversity (CBD) was adopted.55 In addition, the UNEP Regional Seas Programme has played an important role in further developing the protection of marine biodiversity through implementing protocols. In particular, the Wider Caribbean Sea Regional Sea Programme adopted the 1990 Protocol Concerning Specially Protected Areas and Wildlife (SPAW Pro- tocol) of the Cartagena Convention as the regional instrument for implementing this provision56 that served as a model for other regional seas, such as the Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean (SPAMI Protocol).57 The SPAMI and SPAW protocols adopted the key principles of sustainable marine governance and developed methodologies for regional co- operation in identifying and designating marine protected areas, and adopting the necessary preventive and enforcement measures.58 Further, the EU legislation for protection of biodiversity,59 in addition to providing guidance to the Black Sea, has

50 Supra note 40. 51 Adopted in Istanbul, 30–31 October 1996, as amended in 2002. 52 Id., at para. 60. 53 In general see, Alexandre Kiss & Dinah Shelton, International Environmental Law, 351– 441 (3rd ed., 2004), Robin Churchill, The Contribution of Existing Agreements for the Conservation of Terrestrial Species and Habitats to the Maintenance of Biodiversity, in International Law and the Conservation of Biological Diversity, 71–89 (Michael Bowman & Catherine Redgwell, eds., 1996). 54 The United Nations Conference on Environment and Development (“UNCED” or “Earth Summit”) was held in Rio de Janeiro, Brazil, on 3–14 June 1992. See Report of the UN Conference on Environment and Development, UN Doc. A/CONF.151/26/Rev.1. 55 Convention on Biodiversity, 5 June 1992, 31 I.L.M. 841 (1992) (entered into force 29 December 1993), (Hereinafter “CBD”). 56 Protocol Concerning Specially Protected Areas and Wildlife, 18 Jan. 1990, 2180 U.N.T.S. 25974. 57 Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterra- nean, 19 June 1995, 2102 U.N.T.S. 36553. 58 These protocols will be discussed in greater detail in Chapter IV. 59 These are the 1979 Berne Convention on the Conservation of European Wildlife and their Natural Habitats (Berne Habitat), 19 Sept. 1979, 1284 U.N.T.S. 209; the 1979 Wild Birds Directive, Council Directive 79/409/EEC of 2 April 1979 on the Conservation of Wild Birds, 1979 O.J. (L103) 1 Amended Council Directive 91/244 1991, O.J. (L 115), 8, 5, 41; and the 1992 EC Directive on the Conservation of Natural Habitats and of Wild Fauna and Flora (Habitats Directive), Council 10 Introduction direct application with the accession of Romania and Bulgaria and the continued candidacy of Turkey. The Black Sea Biodiversity and Landscape Protocol was adopted in 2002 and entered into force nearly a decade later in 2011.60 The Protocol provides the Black Sea with a legal instrument that incorporates the key principles and approaches for protection of marine biodiversity.

7. Sustainable Fisheries

In the three decades since 1970, the state of marine living resources and biodiversity in the Black Sea suffered a serious decline.61 In many ways the Black Sea fisheries are emblematic of the weakness in the regional governance regime. While there are some signs of recovery, the overall sustainability of the commercial fish stock remains vulnerable.62 The collapse of the Black Sea fish stock during the 1980s and 1990s was the result of a combination of factors such as eutrophication, unsustainable fishing practices and the introduction of the Mneiopsis leidyi comb jelly believed to have been transported by ballast water to the Black Sea during the 1980s. More recently, the major threats identified for sustainable fisheries in the Black Sea are illegal fishing, use of destructive harvest techniques and the lack of a regional co- operative management system for regional fisheries.63 International instruments such as the 1982 LOSC64 and the 1995 United Nations Agreement for the Implementation of the Provisions of the United Nations Con- vention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995 FSA),65 as well as a number of other non-binding instruments adopted under the United Nations Food and Agricultural Organization (FAO)66 clearly established the

Directive 92/43/EEC of 21 May 1992, O.J. (L 206) 7. See David Freestone, European Community Environmental Policy and Law, 18 J.L. & SOC’Y 135, 142 (1991). 60 Black Sea Biodiversity and Landscape Protocol, 14 June 2002, (entered into force 20 June 2011). The Protocol was been ratified by Turkey (12 Aug. 2004), Bulgaria (13 Oct. 2004); Ukraine (22 Feb. 2007) and Georgia (22 Sept. 2009) and Ukraine (21 Apr. 2011). 61 V.A. Shlyakhov & G.M. Daskolov, The State of Marine Living Resources, in State of the Environment of the Black Sea (2001–2006/7) 321–364, (Black Sea Commission, 2008); Ahmet Kideys, Fall and Rise of the Black Sea Ecosystem, 297 Science 1482–1485 (2002). 62 Id., at 358. 63 Id. 64 Supra note 19. 65 1995 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 Dec. 1995, 2167 U.N.T.S. 3, reprinted in 34 I.L.M. 1542 (1995), (Entered into force 11 Dec. 2010) (Hereinafter “1995 FSA”). 66 Specifically, the 1995 FAO Code of Conduct for Responsible Fisheries, Adopted at the 28th Session of the FAO Conference, Rome, Italy, 31 Oct. 1995. [Hereinafter “Code of Conduct”]; Techni- cal Guidelines in Support of the Implementation of the Code of Conduct on Responsible Fisheries, and Plans of Action. Introduction 11 duty of states to co-operate in managing shared fish stocks. However, while the 1995 FSA provides a detailed legal framework for regional co-operation for straddling and highly migratory fish stock, no similar global instrument exists for shared fish stock found in the EEZs of neighboring States, such as the case in the Black Sea.67 This places greater pressure on the regional approach to fill this gap. The need for a binding legal instrument for implementing a sustainable fisheries regime in the Black Sea was highlighted early on by the 1996 Black Sea-TDA68 and the 1996 Black Sea-SAP.69 Nonetheless, the scope of activities of the UNEP Regional Seas Programme does not include fisheries. A separate project was initiated which produced a draft “Binding Legal Instrument” for creating a sustainable regional fisheries regime in the Black Sea. The instrument included the key principles and approaches for sustainable fisheries under international law and practice. Yet, in 2012 the Black Sea countries have still not adopted a regional fisheries instrument, or any regional system for regional co-operation in protecting and preserving the Black Sea fish stock.

8. Land-based Pollution and Activities

Land-based Pollution of the Black Sea from both diffuse and point sources was identified as one of the major sources of pollution under the 1996 Black Sea-TDA.70 In 1992, the Black Sea coastal States, in addition to the Bucharest Convention, adopted a Protocol for Land-Based pollution.71 However, because the Protocol failed to reflect that subsequent international developments in land-based pollution that had been adopted in the Global Programme of Action for the Protection of the Marine Environ- ment from Land-Based Activities (1995 GPA),72 the new revised Black Sea Protocol for Land-Based Pollution was drafted and adopted in 2009 (revised LBS Protocol).73 To date, the revised LBS Protocol has not yet entered into effect. As a result, the existing regional framework for land-based pollution remains a weak and outdated first generation legal instrument.

67 Robin Churchill, The Management of Shared Fish Stocks: The Neglected “Other” Paragraph of Article 63 of the UN Convention on the Law of the Sea,” in Unresolved Issues and New Chal- lenges to the Law of the Sea, Time Before and Time after 3 (Anastasia Strati, Maria Gavouneli & Nikolaos Skourtos, eds., 2006). 68 See supra note 40, at 21. 69 See supra note 51, at para. 59. 70 Id. 71 Protocol on Protection of the Black Sea Against Land-Based Sources, 21 Apr. 1992, reprinted in 32 I.L.M. 1122. (Hereinafter “Black Sea LBS”). 72 The Secretariat duties were given to UNEP. UNEP(OCA)/LBA/IG.2/7 (5 December 1995) [hereinafter “1995 GPA”], Available at http://www.gpa.unep.org/. 73 According to the information provided by the Black Sea Commission Secretariat to date only Georgia has ratified the Protocol (24 Sept. 2009). Available at http://www.blacksea-commission .org/_table-legal-docs.asp (On-file with author). 12 Introduction

Establishing a legal and institutional framework for regional governance of the Black Sea that is based on the UNEP Regional Seas Programme is only part of the overall regional governance regime. The mandate for co-operation as codified in articles 122–123 applies solely to States bordering enclosed or semi-enclosed seas. Unfortunately, the sources of pollution that threaten the Black Sea extend well beyond the borders of its coastal neighbors. Transboundary pollution carried by rivers across thousands of miles is now recognized as a serious source of pollution for many marine environments. For instance, the significant role of the Danube River in the pollution of the Black Sea highlights the limits of a purely coastal state or shoreline based regime and the need for broad inter-regional or transboundary co-operation among States to address all potential sources of pollution. Hence, the Black Sea presents an important case study on transboundary co- operation under international environmental law. The Black Sea – Danube River Basin inter-regional co-operation framework is regarded as a successful model for combating transboundary sources of pollution through inter-institutional, inter- regional as well as cross-sector co-operation.74 Indeed, the Danube Programme, funded by the Global Environment Facility (GEF) International Waters Project and implemented by the United Nations Development Programme (UNDP), which promoted co-operation between the Danube River Commission and the Black Sea Commission, has been recognized as an example of a successful model of transboundary co-operation. The Danube-Black Sea BSERP project was assessed as successfully meeting its objectives in reducing nutrient input into the Danube River and the Black Sea.75 Part of the success was also attributed to the EU Water Frame- work Directive76 which instituted a holistic integrated river basin system of water management for European rivers.77

9. Vessel Source Pollution

Since 1991 the Black Sea region has become an important energy transport route for Caspian and Russian hydrocarbon products.78 The 1996 Black Sea-TDA identified vessel sources of pollution, including introduction of harmful invasive species through

74 See http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/ECAEXT/EXTECAREG TOPENVIRONMENT/EXTBLACKSEA/0,,menuPK:634978~pagePK:64168427~piPK:64168435~the SitePK:634972,00.html (Permanent URL available at http://go.worldbank.org/XJN4WZKFK0). 75 Id. See also, Doc. GEF/C.27/Inf.6 GEF/DANUBE BASIN STRATEGIC PARTNERSHIP INTERIM REPORT (2005) available at http://siteresources.worldbank.org/EXTBLACKSEA/Resources/Partner shipInterimProgressreport.pdf. 76 Supra note 47. 77 Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for the Community action in the field of water policy, O.J. (L 327) 22 December 2000. 78 Nilufer Oral, Oil transportation security in the Black Sea and the Turkish Straits, 5 J. Int’l Logistics & Trade 27–45 (2007). Introduction 13 ballast water exchange, as major threats to the marine environment.79 In less than a decade the volume of crude oil and its products shipped in tankers across the Black Sea and Turkish Straits has more than doubled.80 A number of serious maritime accidents in the Black Sea have highlighted the risks of accidental pollution.81 In addition, there has been increased offshore exploration and exploitation of oil and gas in the Black Sea.82 The disastrous oil spill experience of the Gulf of Mexico83 has underlined the need for adopting protective measures in offshore activities, especially in sensitive sea area as the Black Sea. The International Maritime Organization (IMO) is the principal international institution responsible for regulating international commercial shipping and as such provides the necessary standard for safety of navigation and protection of the marine environment.84 The IMO has developed and adopted many instruments necessary for meeting the international standards of protection of the marine environment from vessel-source pollution.85 The IMO has also developed various tools, such as port state control86 and the designation of areas as Particularly Sensitive Sea Area (PSSA),87 which are expressly designed to balance shipping interests against coastal

79 Supra note 40, at 17. 80 Oral, Oil transportation security in the Black Sea and the Turkish Straits, supra note 78, at 29–30; see also Nilufer Oral, Integrated Coastal Zone Management and Marine Spatial Planning for Hydrocarbon Activities in the Black Sea, 23 Int’l J. Mar. & Coastal L. 453–476, 456–57 (2008). 81 For details on the marine accidents, see Oil Spill in the Kerch Strait: Ukraine Post- Disaster Needs Assessment (European Commission & UNEP, 2008). 82 Oral, Integrated Coastal Zone Management and Marine Spatial Planning for Hydrocarbon Activities in the Black Sea, supra note 80, at 459. 83 On 20 April 2010 an explosion from methane gas occurred on the Deepwater Horizon semi- submersible offshore mobile drilling unit operating in the Gulf Mexico. The explosion caused the death of eleven workers and an oil spill of approximately 4.9 million barrels (780,000 m3), making it the largest oil spill in the Gulf of Mexico and in US -controlled waters. See National Commis- sion on the BP Deepwater Horizon Oil Spill and Offshore Drilling, Deep Water Gulf Oil Disaster and the Future of Offshore Drilling Report to the President Final Report (2011), available at http://www.oilspillcommission.gov/sites/default/files/documents/DEEP WATER_ReporttothePresident_FINAL.pdf (On-file with author). 84 For a general history and overview of the IMO see G.P. Pamborides, International Ship- ping Law 79–84 (1999); W.H. Lampe, The new International Maritime Organisation and its place in development of international maritime law, 14 J.L & COMM. 305 (1983); M. M’gonigle & M. Zacher, Pollution, Politics and International Law, Tankers at Sea (1985). 85 For a listing of all conventions adopted by the International Maritime Organization visit the IMO website at http://www.imo.org. 86 The IMO defines port state control as “the inspection of foreign ships in national ports to verify that the condition of the ship and its equipment comply with the requirements of international regulations and that the ship is manned and operated in compliance with these rules.” See http://www.imo.org/OurWork/Safety/Implementation/Pages/PortStateControl.aspx. For an in-depth analysis of port state control and the different regional and national port state control regimes see OYA Z. ÖZCAYIR, PORT STATE CONTROL (2001). 87 IMO Res. A.720(17) Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas (1991); IMO Res. A.885(21) on “Procedures for the Identification of Particularly Sensitive Sea Areas and the Adoption of Associated Protective Measures” as amended by IMO Res. A.720(17) “Amendments to the Guidelines” as amended by IMO Res. A.982(24) on 14 Introduction

State interests in protecting the marine environment. Unfortunately, the Black Sea States have not adequately made use of these tools. A comparative analysis of the Black Sea with other regional seas programmes, such as HELCOM,88 OSPAR89 and the Mediterranean Sea90 provide insight into the existing gaps in programmes encouraging regional co-operation in preventing pollution from shipping and offshore activities. Finally, in response to the 1999 Erika91 and 2002 Prestige92 oil spills, EU shipping legislation designed to protect the marine

Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas (2005), revoking Annex II of Res. A.720(17). 88 The Commission for the Protection of the Marine Environment of the Baltic Sea Area established under the Convention on the Protection of the Marine Environment of the Baltic Sea Area, 22 Mar. 1974, replaced by the 1992 on the Protection of the Marine Environment of the Baltic Sea Area, that entered into force on 17 January 2000 (Helsinki Convention). 89 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention), 22 Sept. 1992, 2354 U.N.T.S. 67, (entered into force 25 March 1998). 90 The Mediterranean Action Plan for the protection and preservation of the Mediterranean Sea against pollution was established in 1976 as the first UNEP Regional Seas programme. The legal framework includes the Convention for the Protection of the Mediterranean Sea against Pollution, 16 Feb. 1976, 15 I.L.M. 290 (1976) (entered into force 12 Feb. 1978); as amended and renamed as the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediter- ranean, 10 June 1995, and the following implementing protocols; Protocol for the Prevention of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft, 16 Feb. 1976, as amended, and renamed the Protocol for the Prevention and Elimination of Pollution in the Mediterranean Sea by Dumping from Ships and Aircraft or Incineration at Sea 10 June 1995 (Dumping Protocol); the Protocol Concerning Co-operation in Combating Pollution of the Mediterranean Sea by Oil and other Harmful Substances in Cases of Emergency (Emergency Protocol) as amended and renamed as the Protocol in Cases of Emergency, Combating Pollution of the Mediterranean Sea (Prevention and Emergency Protocol), 25 Jan. 2002; Protocol for the Protection of the Mediterra- nean Sea Against Pollution from Land-Based Sources, 17 May 1980, as amended and renamed the Protocol for the Protection of the Mediterranean Sea Against Pollution from Land-Based Sources, and Activities (Land-Based Protocol), 7 March 1996; Protocol concerning Mediterranean Specially Protected Areas, 3 April 1982, as amended and renamed as the Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean (SPA and Biodiversity Protocol or SPAMI) 10 June 1995; The Protocol Concerning Pollution Resulting from Exploration and Exploi- tation of the Continental Shelf, the Seabed and its Subsoil, (Offshore Protocol), 14 Oct. 1994; the Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements of Hazardous Wastes and their Disposal (Izmir Protocol), 1 Oct. 1996; and the Protocol for Integrated Coastal Zone Management (ICZM Protocol), 21 Jan. 2008. 91 On 12 December 1999 the M/T Erika, laden with 30,884 tonnes of heavy oil, during inclement weather broke into two spilling thousands of gallons of crude oil into the marine environment off the coast of Brittany, France and causing millions of Euros of environmental damage to the sea and coastal areas. For details of the accident and the investigation see Permanent Commission of Enquiry into Accidents at Sea (CPEM), Report of the Enquiry into the Sinking of the Erika off the Coasts of Brittany on 12 December 1999. Available at http://www.beamer-france.org/Banque Document/pdf_87.pdf (on-file with author); Vincent J. Foley & Christopher R. Nolan, The Erika Judgment-Environmental Liability and Places of Refuge: A Sea Change in Civil and Criminal Respon- sibility that the Maritime Community Must Heed, 33 TUL. MAR. L. J. 41 (2008). 92 On 13 November 2002 the M/T Prestige laden with 77,033 metric tons of fuel was caught in a storm off the Galician coast of Spain when one of its tanks burst. When Spanish, French and Portuguese authorities denied the tanker entry into ports on 19 November the Prestige broke into two and then sank releasing 20 million gallons of oil into the sea approximately 250 kilometers from the Spanish coast. For an excellent critical review of the 1982 LOSC framework on coastal State jurisdiction, the role of the IMO and the response of the EU following the Prestige accident, Introduction 15 environment has resulted in the adoption of the EU Marine Strategy Framework Directive (MSFD) in 2008.93 The European framework for shipping will have a direct bearing on the Black Sea because of Bulgaria and Romania, and the eventual accession of Turkey, which after Russia has the largest merchant fleet.94 For this reason it constitutes and integral part of the Black Sea legal regime.

including proposals to amend the 1982 LOSC to grant greater competence to the coastal state to prevent the transit of vessels that pose a threat to the marine environment. See Veronica Frank, Consequences of the Prestige Sinking for European and International Law, 20 Int’l J. Mar. & Coastal L 1 (2005); Iciar Patricia Garcia, Nunca Mais! How Current European Environmental Liability and Compensation Regimes are Addressing the Prestige Oil Spill of 2002, 25 U. PA J. INT’L BUS. L. 1395 (2004); Elizabeth Galiano, In the Wake of the Prestige Disaster: Is an Earlier Phase-Out of Single-Hulled Oil Tankers the Answer? 28 TUL. MAR. L. J. 113 (2003). 93 See supra note 48. 94 Turkey is reported to have a total of 7.2 million dwt flying under the Turkish national flag, and 1.7 million dwt sailing under a foreign flag Nilufer Oral, National Report: Black Sea, 11 J. INT’L MAR. l. 141 (2005).

Chapter I

Historical Development of Regional Co-operation in the Black Sea

1. Introduction

The duty of co-operation among states is a well-established principle of modern international law, including for the protection of the marine environment.95 Para- doxically, the origins of the duty of co-operation between States in semi-enclosed and enclosed seas can be traced to the competition, at times war, for access to maritime routes and seas. The struggle between claiming exclusive rights of maritime access and that for open access is best known from the landmark treatise by Hugo Grotius, De jure belli ac pacis and from it Mare Liberum,96 which defended the right of all nations to freedom of navigation and freedom to exploit the oceans natural resources. The competition for the right of access to marine areas or the converse, the right to exclude access, also played a key role in the history of the Black Sea. Moreover, this seemingly regional struggle exerted a broader influence in the development of international law and law of the sea, especially in relation to the rights of coastal States in semi-enclosed and enclosed seas. The duty of international co-operation in the law of the sea evolved through a lengthy and at times combative history of clashing sovereign interests over marine space and resources. The development of international co-operation and more specifically regional co-operation over shared marine space in enclosed and semi-enclosed seas can be traced to the five-hundred centuries of struggle over access to the Black Sea. Beginning with the Ottoman conquest of the Byzantium capital of Constantinople in 1453, the Ottoman Empire expanded into the Black Sea region taking complete control over access into and out of the sea. The following centuries of war and peace between the Ottoman Empire and Russian Empire would ultimately provide the foundations for the provisions on regional co-operation in enclosed or semi-enclosed seas in Part IX of the 1982 LOSC.97

95 Alexandre Kiss & Dinah Shelton, International Environmental Law, 28 (3rd ed., 2004). 96 Hugo Grotius, Mare Liberum, 1609–2009: Original Latin Text and English Translation (Trans. Robert Feensrea, 2009). 97 Supra note 19.

2. The Black Sea: From Mare Clausum to Mare Sui Generis

2.1 Black Sea as Mare Clausum During a period of approximately three hundred years the Black Sea was a closed sea, a mare clausum, politically and physically closed off from the world and under the exclusive control of the Ottoman Empire. After conquering Constantinople, the capital of the Byzantine Empire98 in 1453 the Ottoman Sultan, Fatih Sultan Mehmet (Mehmet the Conqueror) established control over the strategic Strait of Istanbul (Bosphorus), the only connection between the Black Sea and the Mediterranean Sea. In 1475, after the Sultan captured the fortress along the coast of the Sea of Azov, a sub-regional sea of the Black Sea, he expanded the dominion of the Ottoman Empire to include the entire Black Sea coastline, turning the sea into an internal Ottoman sea or a mare clausum turcicum.99 During the following three centuries the Ottoman Empire granted exclusive access rights to the Black Sea and the Strategic Waterway of the Turkish Straits to Ottoman-flagged vessels alone. The Ottoman Empire refused to grant navigational rights to any non-Ottoman ships, including those ships flying the flags of nations that had been granted “capitulations” by the Sultan, which was the equivalent of “most favored nation” status.”100 These capitulation privileges granted the merchant vessels of friendly powers valuable navigation and trade rights but only for the Strait of Çanakkale (Dardannelles) and not the Strait of Istanbul (Bosphorus). This meant that foreign flagged vessels could only sail from the Medi- terranean Sea to Istanbul, but not to the Black Sea. Moreover, foreign-flagged vessels could not sail from the Black Sea to the Istanbul. The Ottoman Empire refused to grant navigational and trade rights in the Bosphorus and the Black Sea.101

98 Named after the city’s founding Roman Emperor, Constantine, the city was founded on 4 November 328. For a history of the founding of the Byzantium Empire, see John Julius Norwich, Byzantium the early Centuries (1990). For a history of the fall of the Constantinople in 1453 see John Julius Norwich, Byzantium the Decline and Fall (1996). 99 See, Franz Babinger, Mehmed the Conqueror and His Time (William Hickman ed., Ralph Manheim transl., Princeton University Press 1978) (1953); Lord Kinross, The Ottoman Centuries the Rise and Fall of the Turkish Empire (1977); Jason Goodwin, Lord of the Horizon a His- tory of the Ottoman Empire (1998). 100 These treaties granted special rights such as the free exercise of religion, the right to engage in trade and exemption from Ottoman law, both civil and penal. For a detailed analyses of Capitu- lations of the Ottoman Empire see, G.P. Durausas, Le Regime des Capitulations dans l’empire Ottomane, Vol. I–II (1905 and 1910). 101 The one exception, at least for a brief duration, was made for Venice which by the “special clauses” of the treaties of 1454 and 1479 and by the Capitulation of 1482 and 1513, was granted the privilege of trading in the Black Sea. James T. Shotwell & Francis Deak, Turkey at the Straits (1941) supra note 21. Shotwell & Deak discuss a clause in a treaty concluded between the English and the Ottomans dated 1604 and repeated in the Capitulation of 1675. The Treaty granted English merchants “and anyone else sailing under the English flag” the unrestricted right to buy and sell all merchandise and transport them by land or by sea, including by the river Don to Muscovy or Rus- sia. The authors queried whether the reference to the English flag granted sailing privileges on the Black sea or whether this was merely a general description and excluded application in the Black Sea. The subsequent clause (38) makes reference to English chartered vessels on the Black Sea Historical Development of Regional Co-operation in the Black Sea 19

As a result of the strict prohibition against foreign access into the Black Sea, Otto- man shipping would eventually take over the entire trade in the Black Sea and for three centuries the Black Sea remained as a mare clausum under the control of a single power.102

2.2 The Black Sea as a Mare Shared Over time, however, the Ottoman crescent began to wane as the star of its rival, the Czarist Russian Empire, began to rise. Russian ambitions in the 17th century would challenge and eventually break the Ottoman stranglehold over the Black Sea. The Czarist quest to expand the ice-locked borders of its fledgling Empire into the ice-free waters of the Black Sea and ultimately towards the former Byzantine capital of East- ern Orthodox faith, Constantinople, and warm waters of the Mediterranean would shape the legal character of the Black Sea for centuries until the 20th Century. In 1696, the Russian Czar Peter the Great succeeded in capturing the Ottoman fortress in Azov. In 1699, after suffering a defeat against the Austro-Hungarian Empire, the Ottoman Empire signed the Peace Treaty of Carlowitz on 26 January 1699, which included provisions ceding the Azov fort and eighty miles of coastline to Russia. However, following an unsuccessful campaign against the Ottomans, Russia was forced to return its Azov gains under the terms of the Treaty of Pruth, signed July 21, 1711. The Treaty of Pruth is the first formal treaty regulating the legal status of the

implying that English merchants may have chartered Turkish vessels in order to trade on the Black Sea. Shotwell & Deak however firmly assert that the Black Sea was closed to foreign shipping and that the Ottomans maintained a Turkish monopoly in the Black Sea. As evidence of this Shotwell & Deak cite the 1718 Treaty of Pasarowitz concluded between the Austrian Empire and the Ottoman Empire after the latter had been defeated. According to this treaty the Turks maintained the pre- scription that only Turkish vessels could sail in Turkish waters. . . . As it has been agreed that the imperial shipping of the Danube will not enter the Black Sea, they will go by the said river to Ibrail, Isaktche, Kilia and other ports, where are found open boats (caiques) and ships suitable for the navigation of the Black Sea. They will there unload their goods, place them on the (Turkish) ships which they will charter for that object, and they will have full and entire liberty to transport them to Constantinople, the Crimea, Trebizond, and Sinope and the other ports of the Black Sea where their goods find a market. Shotwell & Deak, Id. at 14. 102 Even after France had negotiated the return of Serbia to the Ottoman Empire by the terms of the 1739 Treaty of Belgrade, which the Ottoman Empire had lost after suffering its first major defeat against the Christian European Powers in 1717, the Porte still refused to grant France the right of access of French vessels into the Black Sea. For a detailed history of the diplomatic history of the Treaty of Belgrade, see Lavender Cassels, supra note 21. According to the well-known Turkish Straits scholar Cemal Tukin, many of the Treaties employed the vague term of granting navigational rights in “Turkish waters.” However, such rights, which may have been granted on paper, were never granted in practice for the Black Sea. Foreign vessels would only be permitted sailing rights up to Istanbul after which point their cargo would be carried on Turkish flagged vessels into the Black Sea. See Cemal Tukin, Osmanli Imparatorluğu Devrinde Boğazlar Meselesi 11–13 (1947). 20 Chapter I

Black Sea.103 The Treaty also included a covenant by Russia that she would not keep a naval fleet in the Black Sea.104 In 1770, the Czarina Catherine II sent Russian warships through the Baltic Sea and into the Mediterranean Sea where she attacked the Ottoman held islands of Morea and Chios. The Ottomans were able to defeat the Russians at Morea but suffered a crippling loss off Chios in the famous battle of Çeşme where the Russian fleet succeeded in sinking the entire Ottoman fleet in the harbor. The Russian fleet proceeded to sail through the Strait of Çanakkale (Dardanelles) towards Constan- tinople. The Russian progression was, however, stopped with the signing of the landmark 1774 Treaty of Küçük Kaynarca between the Russian and the Ottoman Governments.105 Article 11 of the Treaty marked an historical precedent as for the first time the Ottomans allowed foreign flagged merchant vessels free and unhin- dered navigational rights in the Black Sea and the Straits, as well as free access to Ottoman ports.106 However, Article 19, which ceded to Russia in perpetuity the for- tresses of Yeni Kale and Kertch along the coast of the Crimean peninsula, was of even greater significance as it gave Russia a permanent foothold in the Black Sea and

103 Marriott, The Eastern Question: An Historical Study of European Diplomacy, supra note 21. 104 Id. 105 The Treaty of Küçük Kaynarca, 10 July 1774, reprinted in Clive Parry, The Consolidated Treaty Series Vol. 45, 349 [Hereinafter “Parry’s Treaty Series”]. The Treaty was a detailed Agreement between the two empires consisting of twenty-eight articles and two separate articles. The provisions of the Treaty were far-reaching and included provisions granting territorial tights to Russia, mutual access to the ports of both Empires, recognition of the rights of Christians and of the Church in the Ottoman Empire, pilgrimage rights of Ottoman Christian subjects to Jerusalem and autonomy rights of the Crimean Tartares. 106 Id. at 392. “For the convenience and advantage of the two Empires there will be free and unobstructed navigation for the merchant vessels, belonging to the two contracting powers, in all the seas which wash their shores; the Sublime Porte accords to the Russian merchant vessels, namely, such as those that are employed every where in commerce and in ports by other powers, a free passage from the Black Sea into the White Sea and reciprocally from the White Sea into the Black Sea; as also [the right] of entering all the ports and harbors situated either on the coast of the sea, or in the passages and channels which join those seas. In like manner the Sublime Porte permits Russian subjects to trade in its states by land as well as by water and on the Danube in their ships, in conformity with what has been specified above in this Article, with the same privileges and advantages which are enjoyed in its states by the most friendly nations and whom the Sublime Porte favors most in commerce, such as the French and English; and the capitulations of those two nations and others, just as if they were inserted here word for word, shall as a rule always and everywhere for that which concerns commerce as well as Russian merchants, who on paying the same duties may import and export all kinds of merchandise, and disembark at all the ports and harbors as well on the Black Sea as on other seas, Constantinople being expressly included in the number. In granting the above manner to the respective subjects the freedom of commerce and of navigation on all the waters without exception, the two empires at the same time permit merchants to stop within their territories for as long as a time as their interests requires, and promise them the same security and liberty as are enjoyed by the subject of other friendly courts.” Translation taken from M.L. Harvey, The Development of Russian Commerce on the Black Sea and Its Significance. Supra note 22. Historical Development of Regional Co-operation in the Black Sea 21 inaugurated its new role as a Black Sea Power. From then on the legal status of the Black Sea and access to the Straits107 would be a question of European politics and eventually a subject of international law. The Treaty of Küçük Kaynarca would also serve as a model for all subsequent treaties concerning the Black Sea.108 In 1789, Russia and Austria joined forces and waged war against the Ottomans. This ended in the Perpetual Treaty of Peace signed in Jassy in 1792.109 The Treaty re- confirmed navigational rights for Russian-flagged merchant vessels in the Black Sea and the Turkish Straits as provided by the Treaty of Küçük Kaynarca. However, the Ottomans retained the right to regulate the size and the nature of the vessels that could pass through the Turkish Straits. Furthermore, a special permission issued by the Sultan, called a firman would be a prerequisite before a Russian merchant vessel would be allowed passage through the Turkish Straits. Russia had firmly established herself as a Black Sea power.110 The next important Treaty for the Black Sea was the 1798 Treaty signed on 23 December between the Ottomans and Russia in an historic alliance against the threat of Napoleon Bonaparte.111 Under the Treaty the Russians were to provide the Ottomans with twelve vessels of war and in turn, for the first time ever, the Ottomans granted Russian vessels of war free navigational rights in both the Black Sea and the Mediterranean Sea.112 A few years later, the Russian and the Ottoman Empires once again concluded a similar treaty against Napoleon who had openly announced his intention to capture Constantinople and gain control over the Turkish Straits. The 1805 Treaty of Defensive Alliance113 committed each party to the mutual defense of the other by either land or by sea, or in the case where actual military assistance was

107 The “Straits” comprise the Strait of Istanbul (Bosphorus), which connects the Black Sea to the Sea of Marmara, and the Strait of çanakkale (Dardannelles) that connects the Sea of Marmara to the Aegean Sea. 108 Following the signing of the Treaty of Küçük Kaynarca differences in interpretation of the treaty arose leading to the conclusion of an “Explanatory Convention” signed, 10 March 1779 between the Ottoman Empire and Russia. In relation to the provisions on navigational rights the Explanatory Convention included size limits of Russian vessels that would be allowed passage through the Turkish Straits. A subsequent Treaty of Commerce concluded in 1783 between the powers also provided further details on the Russian right of navigation in the Black Sea); see Har- vey, supra note 22, at 18–19. 109 Marriott, supra note 21, at 163. 110 Id., at 163–164. 111 Sergei Goriainow, Le Bosphore et les Dardanelles Étude Historique sur la Question des Détroits, supra note 22, Papouktchieva, La Politique de la Russie a l’egard des Détroits, supra note 22. For one of the few detailed historical analyses of the 1798/99 Treaty, see Jacob Cole- man Hurewitz, Russia and the Turkish Straits A Reevaluation of the Origins of the Problem, supra note 22, at 605. 112 Goriainow, supra note 22. The French occupation of the Ionian Islands ended as a result of the joint naval effort of the Ottomans and Russian fleet. 113 The Treaty of Defensive Alliance between Russia and Turkey, 21 Sept. 1805, Article 2. Parry’s Treaty Series, Vol. 58, 215. 22 Chapter I not feasible, to provide monetary assistance for the defense.114 The most significant provisions were found in the secret clauses annexed to the Treaty. Article 1 obligated the Ottoman Sultan to allow passage rights to Russian war vessels from the Black Sea through the Straits.115 Furthermore, Article 7 of the Treaty formally declared that the Black Sea to be closed to all foreign vessels of war and that any violation of the provision would be considered to be a hostile act, a casus belli, against the territory of both signatories.116 The Black Sea was not the subject of any new treaties until the 1829 Peace Treaty of Edirne (Adrianople).117 Specifically, Article VII, under the general heading of Freedom of Trade in Turkey, granted Russia extensive navigational rights. Russian subjects were granted absolute freedom of trade throughout the Empire. The treaty also included a prohibition against the search of Russian ships by Ottoman authorities.118 Article VII further granted Russian merchant vessels complete freedom of navigation in the Black Sea and passage through the Turkish

114 Goriainow, supra note 22, at 6–14; W.B. Hazelton, The International Administration of the Turkish Straits, 1924–1936, 16 (Stanford 1951); Hurewitz, supra note 22, at 612, 621. 115 “. . . Tout au moins, le Gouvernment Ottoman mettra a la disposition de son allié les forces de secours mentionées a l’art.2 du Traité d’alliance défensive, et facilitera, pendant la durée de la guerre, le passage par les Détroits de Constantinople des batiments de guerre et de transport que la Russie sera obligée d’éxpedier dans les mers intérieures.” Supra note 113. The issue of securing or denying rights of passage for non-Ottoman flagged merchant and military ships through the Straits was one of the long-standing sources of political tension, at times conflict and subject of international law between the Ottoman Empire and the Great Powers of Europe. The Bosphorus and Dardanelles provided Russia with the only sea access to the Mediterranean and Europe. During the 19th Cen- tury the Great Powers of Europe supported the Ottoman rule of closure known as the ancient rule of the Ottoman Empire, especially for the passage of non-Ottoman flagged warships through the Straits, as a way to control Russian expansionism. See in general, Barbara Jelavich, The Ottoman Empire, The Great Powers, and the Straits Question 1870–1887 (1973); J.A.R. Marriott, The Eastern Question an Historical Study in European Diplomacy (1918); Macfie, The Straits Question (1993); V.J. Puryear, England, Russia and the Straits Question (1931). 116 The 1805 Treaty, and specifically Article 7 of the secret annex, was the subject of an important historical controversy. In a very harsh critique the scholar Hurewitz accused the well-known Russian archivist and Turkish Straits scholar Serge Goriainow of “falsification of evidence” by providing a false version of the Treaty and Article 7, favoring Russian interests in the Turkish Straits. See Hurewitz, supra note 22, at 613. For many years, until 1930, western scholars had relied virtually exclusively on the now questionable version of the 1805 Treaty and the critical provisions of Article 7 as relayed by Goriainov. His thesis was used as a basis by many Soviet jurists subsequently to support the Soviet legal doctrine of closed seas. See William Butler, The Law of Soviet Ter- ritorial Waters 23 (1968). 117 Treaty of Peace between Russia and Turkey signed at Adrianople, 14th September, 1829, reprinted in Edward Hertslet, The Map of Europe by Treaty Vol. II, 813 (1891). The Treaty of Adrianople followed the Russian-Ottoman War of 1828–29. 118 The first paragraph of Article VII began with the forceful provision that “Russian subjects shall enjoy, throughout the whole extent of the Ottoman Empire, as well as by land as by sea, the full and entire freedom of trade . . . This freedom of trade shall not be molested in any way, nor shall it be fettered in any case, or under any pretext, by any prohibition or restriction whatsoever, nor in consequence of any regulation or measure, whether of public government or internal legislation. Russian subjects and ships shall be protected from all violence and imposition. . . . Russian ships shall never be subjected to any search on the part of the Ottoman authorities, neither at sea nor in any of the ports or roadsteads under the dominion of the Sublime Porte . . . See Hertslet, Id., at 818. Historical Development of Regional Co-operation in the Black Sea 23

Straits in both directions.119 The merchant vessels of those Powers which were at peace with the Porte were likewise granted free passage through the Turkish Straits and access to Russian ports in the Black Sea upon the same conditions granted to Russia vessels. The article also recognized that any act by the Ottoman authorities of either stopping or detaining a merchant vessel flying the Russian flag or the flag of any other nations not at war with the Porte would give Russia cause to demand full and prompt redress and failure of such redress would constitute grounds for war. The Black Sea alliance was once again formalized by the 1833 Treaty of Defensive Alliance signed in Constantinople 26 June (8 July) 1833, also known as the Hünkâr Iskelesi Treaty.120 The rebellious Ottoman Governor in Egypt, Mehmet Ali Pasha, in 1832 staged a revolt against his Ottoman suzerain posing a serious threat to the territorial integrity of the Empire. Fearful that the ambitious Mehmet Ali Pasha would oust the Ottomans from power and threaten the existing status quo, Russia came to the succor of the Porte by sending Russian war vessels from the Black Sea to Istanbul through the Strait of Istanbul.121 In return for its assistance the Porte granted Russia the far-reaching privileges bestowed in the Hünkâr Iskelesi Treaty that included a secret annex granting Russia the control over access to the Black Sea it had long coveted. Under the secret provision, in place of providing direct military support to Russia, upon the request of the latter, the Ottoman Empire agreed to prevent the passage of all foreign vessels of war through the Strait of Çanakkale (Dardannelles).122 However, these terms brought strong opposition from the British and French governments.123 The privileged position accorded to Russia by the 1833 Hünkâr Iskelesi Treaty was eventually replaced by what many consider to be the first collective or multilateral treaty concerning the Turkish Straits, and by consequence, the Black Sea.

119 Specifically, “The Sublime Porte engages. . . . to take especial care that trade and navigation in the Black Sea, particularly, shall be impeded in no manner whatsoever. For this purpose it admits and declares the passage of the Strait of Constantinople and that of the Dardanelles to be entirely free and open to Russian vessels under the merchant flag, laden or ballast, whether they come from the Black Sea for the purpose of entering the Mediterranean or whether, coming form the Mediterranean, they wish to enter the Black Sea: such vessels provided that they be merchant vessels, whatever their size and tonnage, shall be exposed to no hindrance or annoyance of any kind . . .” 120 Parry’s Treaty Series, supra note 23, at Vol. 84, 1. 121 Papouktchieva, supra note 22. 122 . . . Nevertheless, as his majesty the Emperor of all the Russias, wishing to spare the Sublime Porte the expense and inconvenience by which be occasioned to it, by affording substantial aid, will not ask for that aid if circumstances should place the Sublime Porte under the obligation of furnishing it, the Sublime Ottoman Porte, in the place of the aid which it is bound to furnish in case of need, according to the principle of reciprocity of the Patent Treaty, shall confine its action in favour of the Imperial Court of Russia, to closing the Straits of Dardanelles, that is to say, to not allowing any Foreign Vessel of War to enter therein under any pretext whatsoever. Supra note 120. 123 Hertslet has reproduced the British protest sent to the Porte. See Hertslet supra note 117, at 928. The letter expressing British concern, see, R.L. Baker & V. Palmerston, Palmerston on the Treaty of Unkiar Skelessi, 43 ENG. HIST. REV. 83–89 (1928). 24 Chapter I

2.3 Multilateralism in the Black Sea The Convention of London dated 15 July 1840124 temporarily placed the Turkish Straits and the city of Istanbul under the protection of the signatory European Powers. However, of even greater legal significance was the express recognition and codification of what had historically been known as the ancient rule of the Otto- man Empire, a rule that had been unilaterally exercised by the Ottoman Empire to prohibit the passage of all foreign warships through the Straits unless granted permission by the Sultan. The Treaty expressly provided that the temporary military protection provided by the European Powers of the Ottoman capital and the Turkish Straits against the threat of the Egyptian Governor Mehmet Ali Pasha was not be considered as derogation of ancient rule of the Ottoman Empire restricting passage of foreign war vessels through the Straits.125 The Treaty had in effect transformed what had been until then a discretionary power exercised by the Ottoman Empire for centuries into an objective rule of international law.126 From then on the restriction against the passage of foreign vessels of war during times of peace through the Turk- ish Straits would be a rule of international law binding upon all nations. This meant that in effect Black Sea was to remain as a “closed sea” from which non-littoral war ships would be kept out, and by the same token, the Russian Black Sea fleet would remain locked in.127 The Convention of London dated 13 July 1841 was signed shortly after the 1840 London Convention.128 France was now added to the body of High Contracting Powers agreeing to respect the ancient rule of the Ottoman Empire. The Porte, once again, under Article 1 committed itself legally to respecting its own ancient rule, rendering what was once an internal rule of the Empire an international obligation.

124 The full title was The Convention for the Pacification of the Levant, 15 July 1840, Parry’s Treaty Series, supra note 23, at Vol. 90. The High Contracting Powers were England, Austria, Russia, Prussia and the Ottoman Empire. 125 The French text as reproduced in the Parry Treaty Series presents Article 4 as follows: Il est toutefois expréssement entendu que la co-opération mentionnée dans l’Article précédent, et déstinée a placer temporairement les Détroits des Dardanelles et du Bosphore, et la capitale Ottomane, sous la sauvegarde des Hautes Parties Contractantes, contre toute agression de Mehemt Ali, ne sera considerée que comme une mesure exceptionnelle, adoptée a la demande expresse du Sultan, et uniquement pour sa défense dans le cas seul indiqué ci-dessus. Mais il est convenu que cette mesure ne derogera en rien a l’ancienne régle de l’Empire Ottoman, en vertu de laquelle il a été de tout temps défendu aux batiments de guerre des Puissances étrangeres d‘entrer les Détroits des Daradanelles et du Bosphore. Et le Sultan, d’une part, declare par le present Acte, qu’a l’exception de l’éventualite ci-dessus mentionnée, il a la ferme résolution de maintenir a l’avenir ce principe invariablement établi comme ancient régle de son Empire, et tant que la Porte se trouve en paix, de n’admettre aucun batiment de guerre étranger dans les détroits . . . Id. 126 See, H.M. Wood, The Treaty of Paris and Turkey’s Status in International Law. 37 AM. J. INT’L L. 262 (1943). 127 A separate Protocol of the same date that was attached to the Treaty reserved the right of the Sultan, consistent with past practice, to give firmans (decree issued by the Sultan) for the passage of light war vessels. 128 Parry’s Treaty Series, supra note 23, at Vol. 92. Historical Development of Regional Co-operation in the Black Sea 25

The Black Sea was by common accord given the status of a sea closed to all foreign vessels of war in times of peace.129 The end of the Crimean war resulted in the signing of the 1856 Treaty of Paris.130 Article XI of the Treaty provided for the neutralization of the Black Sea.131 Histori- cally, this marked the first time that the legal principle of neutralization had been applied to an entire sea.132 Accordingly, in addition to prohibiting access into the sea of all foreign vessels of war both the Ottomans and the Russians were prohibited from maintaining a Black Sea fleet.133 The objective of the neutralization provision was to weaken the Russian naval force in the Black Sea so that Britain could exercise a dominant position over the Turkish Straits. The Turkish Straits had not been included within the ambit of neutralization.134 The London Convention of 1871 affirmed the 1856 Treaty of Paris but revised the Black Sea clauses by allowing the Sultan to open the Straits in time of peace to friendly and allied Powers.135 The ancient rule of the Ottoman Empire would continue to be recognized as a rule of international law until the defeat of the Otto- man Empire and Germany at the end of World War I. The issue of the Black Sea, and the Turkish Straits, would be catapulted into the Twentieth Century by three major events: World War I, the 1915 Russian Revolution and the 1919 Turkish War of Independence.

129 The Convention of London remained in force until 1914. 130 General Treaty for the Re-establishment of Peace between Austria, France, Great Britain, Prussia, Sardinia and Turkey, and Russia, signed at Paris, 30 March 1856: Russia was made to return areas of the Ottoman Empire its had occupied such as Kars and in return the European powers would return Russian territories they had occupied along the coast of the Black Sea as result of the war including Sevastopol, Kertch, and Yenikale. Article 7 of the Treaty reaffirmed the commitment of the Contracting Parties to respecting the territorial integrity of the Ottoman Empire. Of interest was the provision that declared the Ottoman Empire to be admitted to the advantages of the public law of the Concert of Europe. This clause has been the subject of scholarly debate as to whether this had made the Ottoman Empire a subject of international law. For a detailed discussion see, H.M. Wood, The Treaty of Paris and Turkey’s Status Under International Law, 37 AM. J. INT’L L. 262 (1943); Bilsel, supra note 25. For a detailed discussion of the lengthy negotiation of the 1856 Treaty and its provisions on the Black Sea see G.B. Henderson, The Two Interpretations of the Four Points, 1854, 52 Eng. Hist. Rev. 48 (1937); H. Temperley, The Treaty of Paris of 1856 and its Execution 4 J. MOD. HIST. 387 (1932). 131 The neutralization of the Black Sea had been decided a year earlier at the 1855 Vienna Conference. 132 Shotwell & Deak observed that “The neutralization of the Black Sea was, in a sense, an innovation in international law, since it attempted to apply to a sea a new conception, that of neutralization, to be added to those of the simple categories of Grotius, free sea and territorial sea (mare apertum, mare liberum and mare clausum). It was an application to the sea of a principle hitherto confined to land.” Shotwell & Deak, supra note 21. 133 A separate Treaty for the Turkish Straits was also concluded according to which the Straits were to be closed to all foreign warships. For a detailed examination of the Vienna Conference of 1855 see Puryear, supra note 115. 134 Puryear, id., at 356; Shotwell & Deak, supra note 21, at 43. 135 D.J. Bederman, The 1871 London Declaration, Rebus Sic Stantibus and a Primitivist View of the Law of Nations 82 AM. J. INT’L L. 1, 11 (1988). 26 Chapter I

2.4 A Sui Generis Regime for the Black Sea The end of World War I brought a new multilateral legal regime to the Black Sea under the 1923 Lausanne Peace Treaty,136 concluded with the newly established Republic of Turkey. The Lausanne Peace Treaty included a separate “Convention relating to the regime of the Straits and Turkey.”137 While the primary subject matter of the Convention was to establish the legal regime of passage for merchant and war vessels, as well as aircraft, through the Turkish Straits, the geographic connection between the Straits and the Black Sea created a parallel legal link. As a result, the Lausanne Straits Convention included provisions that directly related to access to the Black Sea. The question of foreign vessel access to the Black Sea was perhaps the most vigorously debated issue during the negotiations for the Lausanne Straits Convention. The debate centered on the demand by the European Parties for complete freedom of passage of all vessels through the Straits and into the Black Sea against the Soviet position to close the Black Sea to all non-Black Sea vessels of war. The Soviet position rested on the argument that the Black Sea was a “closed sea,” a legal doctrine that the Soviets would later further elaborate138 and subsequently rejected by the other states.139 It is interesting to note that in regard to the question of navigational access to the Black Sea the Romanian Delegate voiced the argument that closure of the Black Sea would render freedom of navigation on the Danube River, an international river that ended in the Black Sea, meaningless.140 The link between the Danube and the Black Sea would later re-emerge but in a very different context. The 1923 Lausanne Convention on the Regime of the Straits and Turkey regulated the passage of merchant vessels, vessels of war and aircraft in the Turkish Straits. In relation to the Black Sea, the Convention limited the total tonnage and total number of war vessels a non-Black Sea power could send through the Straits into the Black

136 Treaty of Peace With Turkey and Other Instruments, signed at Lausanne on July 24, 1923, Great Britain Treaty Series No. 16 (1923), Cmd. 1929, 109. 137 For discussion on the Lausanne Conference relating to the Regime of the Turkish Straits see, Cemal Bilsel, International Law in Turkey, supra note 25; Macfie, supra note 25. 138 Váli, supra note 26, at 32. Chicherine rejected Curzon’s view that the Turkish Straits (the Straits of Çanakakle and Istanbul) were similar to other straits. He pointed out that they did not provide a passage between two high seas but served only as an exit and entry into a closed sea. In support of his argument Chicherine quoted from a book written in French which described the Black Sea as a cul de sac and internal sea. See, Meray, Lozan Bariş Konferansi Tutanaklar Belgeler, supra note 27. 139 Lord Curzon expressing his annoyance with what he claimed to be a last minute submission by Chicherine of a Soviet Counter Draft that would give the Black Sea the status of a “closed sea” recalled that “fifteen days earlier on behalf of the Allies he had rejected this principle.” See Meray Id., at 269. Curzon later commented that Russia had “proposed a ridiculous plan designed only to convert the Black Sea into a fortified Russian lake, and to make Turkey her vassal.” See Macfie supra note 25, at 201. 140 Meray, supra note 27, at 133–134. Historical Development of Regional Co-operation in the Black Sea 27

Sea.141 In addition, a time limit was imposed on the length of stay in the Black Sea of foreign war vessels.142 The 1923 Lausanne Convention on the Regime of Straits and Turkey lasted for just thirteen years. With the advent of a second world war, in a rare application of the international law principle of rebus sic stantibus, the Convention was renego- tiated and replaced with the 1936 Convention Regarding the Regime of the Straits Signed at Montreux on 20 July 1936 (Montreux Convention),143 which continues in effect today. Similar to the Lausanne Straits Convention one of the key issues of debate was the access of foreign vessels of war into the Black Sea. The Soviet representative reiterated the argument asserted during the negotiations of the 1923 Lausanne Straits Convention for preferential rights of the Black Sea coastal States over non-Black Sea States. Litvinov, the Soviet representative argued at great length for limitations on non-Black Sea States. He pointed out that the Black Sea was a closed sea with no connection to other seas.144 In its final text the 1936 Montreux Convention on the Straits maintained the former provisions on the passage of merchant vessels that provided for freedom of passage and navigation “for all vessels of all flags,” subject, however, to certain conditions.145 While the Black Sea remained an open sea for all foreign merchant vessels the same principle did not apply to vessels of war. By imposing significant limitations on the access of foreign vessels of war into the Black Sea with limitations on total tonnage and number,146 prior notification requirements,147 banned classes of vessels,148 and limitation on the

141 According to article 18 the maximum aggregate tonnage allowed for non-Black Sea States during times of peace is 30,000 tons, which can be increased to a maximum of 45,000 tons if at any time the tonnage of the strongest Black Sea fleet exceeds by 10,000 tons the tonnage of the strongest fleet in the Black Sea at the time of the signing of the Convention. Furthermore, Article 18 limits the total tonnage any one non-Black Sea Power can have in the Black Sea to two-thirds of the aggregate tonnage provided (i.e. 30,000–45,000 tons). 142 Article 18(2) limits the stay to 21 days for vessels of war belonging to non-Black Sea Powers. 143 173 U.N.T.S. (1936); 30 G. B. Treaty Series (1937). 144 Seha L. Meray & Osman Olcay, Boğazlar Konferansi, Tutanaklar Belgeler, 44–70 (Ankara University, 1976). 145 Specifically, according to article 2 of the Montreux Convention all merchant ships are obliged to stop for a sanitary inspection, to report their name, nationality, tonnage, destination and last port of call and pay taxes and fees related to the services provided for sanitary inspection, lighthouses, light and channel as life saving service fees as provide in Annex I. 146 Article 14. Such limitations are subject to the exception provided in Article 11 for Black Sea Powers and in Annex III for over-aged Japanese training ships. 147 Article 13 provides in part that [t]he transit of vessels of war through the Straits shall be pre- ceded by a notification given to the Turkish Government through the diplomatic channel. The normal period of notice shall be eight days, but it is desirable that in the case at non-Black Sea Powers this period should be increased to fifteen days. The notification shall specify the destination, name, type and number of the vessels, as also the date of entry for the outward passage and, if necessary, for the return journey. Any change of date shall be subject to three days’ notice. 148 Article 8 limits the definition of vessels of war, for purposes of the Convention, to that provided by Annex II. The restriction of the passage of aircraft carriers is based on their omission 28 Chapter I length of stay in the Black Sea,149 the Montreux Convention created what could be termed as a “quasi-closed sea” regime. Moreover, Black Sea flagged war vessels enjoy superior rights in the total tonnage and number of vessels that are permitted passage through the Turkish Straits,150 as well as the requirement for prior notice.151 No similar regime exists for any other enclosed or semi-enclosed sea, making the legal regime of the Black Sea under the 1936 Montreux Convention, a sui generis regime, which effectively granted superior rights to those coastal States bordering the sea. The notion that coastal States bordering a sea should enjoy special rights or that a separate regime should apply to seas defined as enclosed or semi-enclosed would continue to be argued by Soviet Union in other fora of international law. However, the legal regime of the Black Sea remains today as the only sea where the bordering coastal States were given a special legal status by international agreement to regulate and limit the access of military vessels. In addition to requiring that States give advance notice of the passage of non-Black Sea warships,152 the 1936 Montreux Convention also imposed limits on the number of vessels and total tonnage,153 and duration of stay for vessels of war in the Black Sea.154

3. The Historical Development of Regional Co-operation in Part IX of the 1982 LOSC

3.1 The Soviet “Closed Sea” Doctrine The historical origins of Part IX of the 1982 LOSC section on semi-enclosed and enclosed seas can be traced to the “closed sea” doctrine that was developed and espoused by the former USSR. As noted earlier, this doctrine was first officially put forth in relation to the Black Sea during the negotiations for the 1923 Lausanne Con- vention on the Regime of the Straits and Turkey. According to the Soviet doctrine of closed seas, the legal regime for navigational rights in semi-enclosed and enclosed sea was to be established exclusively by the concurrence of the littoral states. Non- contiguous States to these seas were to possess no legal rights of access into the from the definition provided in Annex II, as well as statements made by the Soviet Delegation during the Conference. 149 Non-Black Sea flagged war vessels are permitted to remain for only twenty-one days in the Black Sea. Article 18, subparagraph (2). Furthermore, the maximum tonnage that any one non- Black sea power can have in the Black Sea at one time cannot exceed one-third of the tonnage provided in sub-paragraphs (a) and (b) of article 18. 150 Article 11. Subject to the condition that these ships pass singly and cannot be escorted by more than two destroyers. 151 Article 13. Black Sea flagged vessels are required to give eight days notice and non-Black Sea flagged war vessels are required to give fifteen days advance notice to the Turkish authorities for passage through the Turkish Straits. 152 Supra note 147. 153 Supra note 149. 154 Id. Historical Development of Regional Co-operation in the Black Sea 29 sea unless expressly granted by the coastal states.155 This view was put forth by the well-known Soviet jurist, F.I. Kojevnikov, a former judge at the International Court of Justice, who in 1948 wrote that a distinction had to be made between the high seas and closed seas such as the Black Sea, where in the latter case, only the littoral States could determine the legal regime of the sea.156 The common view is that the Soviet doctrine of closed seas was an outgrowth of post-World War II Soviet policy and cold war politics.157 One of the foremost US experts on Soviet law, William Butler, noted that before World War II the closed sea doctrine was rarely mentioned.158 Authors cite the Sea of Okhost as the first attempt by the USSR to have a sea recognized under international law as a closed sea at the 1951 San Francisco Peace Conference.159 Whereas historical records show that prior to 1951, the Soviet Union had expressly asserted and sought recognition of the Black Sea as a closed sea during the 1923 Lausanne and the 1936 Montreux Straits Confer- ences. During the Lausanne conference on the Straits the Soviet Union insisted on having the Black Sea recognized as a closed sea and expressly declared this in the Soviet counter-draft presented during the Conference.160 The counter-draft introduced by the Soviet Union included a caveat that should any changes be made to its proposed draft within three months of its being signed, the Black Sea Powers had agreed to convene a meeting to draft and sign an international agreement recognizing the Black Sea as a being a closed sea. 161 In fact, Turkey and the USSR did succeed in establishing what is the only sea under international law to enjoy a treaty-based status as a legally closed – or semi- closed sea in regards to the right of access of foreign warships. The 1936 Montreux Convention imposed unique limitations on access to the Black Sea by non-Black Sea littoral States and significantly limited the tonnage as well as number of foreign

155 Joseph J. Darby, The Soviet Doctrine of the Closed Sea, 23 SAN DIEGO L. REV. 685, 690 (1986). 156 “[I]l faudrait également distinguer de la haute mer les mers fermées parmi lesquelles on range par exemple la mer Noire dont le régime juridique ne doit évidemment être déterminé que par les seuls états riverains.” Cited in F. De Hartingh, Les Conceptions Soviétiques du Droit de la Mer 28 (Paris 1960). 157 An exception is found in K. Grzybowski, The Soviet Doctrine of Mare Clausum and Policies in Black and Baltic Seas, 14 J. CENT. EUR. AFF. 339, 341 (1954–55). The author observed that it was during the 1923 Lausanne Conference on the status of the Black Sea that the Russians for the first time invoked the closed sea doctrine. Id., at 344. 158 Butler, The Law of Soviet Territorial Waters, supra note 116. 159 Richard E. Bradshaw, The Politics of Soviet Maritime Security, 10 J. MAR. L. & COMM 411, 422–423 (1978–79). 160 Váli, supra note 26, at 32. Chicherine rejected Curzon’s view that the Turkish Straits (the Straits of Çanakakle and Istanbul) were similar to other straits. He pointed out that they did not provide a passage between two high seas but served only as an exit and entry into a closed sea. In support of his argument Chicherine quoted from a book written in French which described the Black Sea as a cul de sac and internal sea. See, Meray, supra note 27, at 165 (Transl. by author). 161 Id., at Annex E, 258. 30 Chapter I

warships allowed entry into the sea at any one time. Prior notification was also made a requirement during times of peace. B.A. Dranov, having in mind the Black Sea, was the first Soviet jurist to provide a theoretical argument for the legal doctrine of closed seas.162 Other Soviet jurists expanded upon Dranov’s theory applying it to seas such as the Baltic Sea163 and the Caspian Sea.164 The idea that coastal States bordering a semi-enclosed or enclosed sea should enjoy superior legal rights over non-coastal States had been recognized before the 1923 Lausanne Conference, under the Treaty of Friendship, dated 16 March, 1921, concluded between Turkey and the USSR.165 According to the Treaty the Black Sea coastal States had agreed to meet to and jointly agree upon the legal status of the Black Sea.166 The Soviet jurist Bakhov elaborated further on the Dranov theory and presented three classifications of closed seas:

(1) A sea completely enclosed by the territory of two or more states and which has no other entrance to another sea. (eg. The Caspian Sea); (2) A sea enclosed by a certain number of states and which is joined to another sea by one or more narrow straits whose legal status is governed by an international treaty (eg. The Black Sea and Baltic Sea);167 or (3) A sea enclosed by the territory of two or more states and which is not the subject of an international agreement (eg. the Sea of Japan and the Sea of Okhost).168

Butler, in his excellent overview of the Soviet closed sea doctrine discussed the views of the Soviet jurist Malinin who presciently argued that the term closed sea be replaced by the term regional sea. Butler wrote that:

Malinin defined regional seas as expanses of water enclosed by the territory of two or several states which are connected with the high seas by a strait or canal and which are significant as a maritime route only to the contiguous states. There are four independent legal requirements for a closed or regional sea: (1) a particular geographic configuration of the shore; (2) the proximity of the shore to a limited number of states whose territory fully encloses the given expanse of

162 Butler, The Law of Soviet Territorial Waters, supra note 116, at 19. 163 The Soviet jurist S.V. Molodtsov applied this doctrine to the Baltic Sea. Id., at 154. 164 Id. 165 English version of treaty reprinted in 1 Soviet Treaty Series 100 (L. Shapiro, ed., 1950). 166 Article V of the 1921 Treaty of Friendship the Parties had agreed to “[. . .]entrust the final elaboration of an international agreement concerning the Black Sea to a conference composed of the delegates of the littoral states[. . .]” Id. (emphasis added). 167 According to William N. Harben, the Black Sea and Baltic Sea were cited as examples of “closed seas” in the 1956 Soviet Naval International Handbook. See William N. Harben, Soviet Atti- tudes and Practices Concerning Maritime Waters, 15 JAG. J. 149, 154 (1961). 168 Butler, The Law of Soviet Territorial Waters, supra note 116, at 20; Bradshaw, supra note 159, at 421. Historical Development of Regional Co-operation in the Black Sea 31

water; (3) limited possibilities of access to the sea (comparatively narrow entrances); (4) absence of international maritime routes.169 According to Malinin the regime of the closed or regional sea would be determined by the agreement of the coastal states. He further contended that while military navigation by non-coastal States could be prohibited, commercial navigation could not. Undoubtedly, Soviet security interest in protecting its vulnerable maritime flanks against the Western Powers at a time when the Soviet naval force was weak was an important factor underlying the doctrine.170 Only with time as the Soviet naval force grew in strength did the USSR appear to abandon this view. For example, Tunkin, in his 1982 textbook made no reference to the doctrine of the closed sea.171 This would correspond directly with the emergence of the Soviet naval fleet as a world power second only to the US naval fleet. Furthermore, throughout the Third Law of the Sea Conference (UNCLOS III) the USSR consistently supported freedom of navigation in general and in particular for straits used in international navigation. In practice, the doctrine of closed seas was primarily reflected in the Soviet interpretation of the innocent passage rights of all vessels through its territorial sea. In Butler’s detailed analysis of innocent passage under Soviet law he demonstrated how until the 1958 Law of the Sea Conference (UNCLOS I), the USSR more-or-less ignored the concept of innocent passage, pursuing an authoritarian and defensive regime restricting the rights of both merchant and military vessels in its territorial seas.172 For example, a decree issued on June 15, 1927 on the Protection of the State Borders of the USSR established a territorial sea of 12 miles and gave Soviet authorities extensive power to stop and search civilian vessels. Civilian vessels would be arrested if the captain were unable to provide the necessary documents.173 Oddly, however, no similar restrictions were included for foreign military vessels, except by a decree issued on June 24, 1928 that placed restrictions as to the time, place and purpose that foreign military and non-military vessels could use radio equipment in Soviet territorial waters.174

169 Id., at 21. 170 Malinin viewed the security interests of the coastal states to be the primary concern in a closed sea or regional sea regime. Id., at 22. 171 International Law (Grigory I. Tunkin ed., William E. Butler transl., 1986). The textbook discusses the regime of the Baltic (Danish) Straits criticizing the Danish ordinance of requiring three-day prior notification for the passage of foreign warships through the Little Belt. The text book, in complete opposition to the classic Soviet position, stated that the free passage of warships through straits used in international navigation was a customary rule of law. Id., at 432. However, the Soviet jurists had not abandoned the doctrine. 172 William E. Butler, Soviet Concepts of Innocent Passage, 76 HARV. INT’L L.J. 113, 116 (1965). See also, Eric Frankx, The U.S.S.R. Position on the Innocent Passage of Warships Through Foreign Territorial Waters, 18 J. MAR.L.& COM. 33 (1987). 173 Regulations of 15 June 1927 for the Defence (sic) of the State Frontiers of the USSR, United Nations Legislative Series 255 (1957). 174 Butler, Soviet Concepts of Innocent Passage, supra note 172, at 116. 32 Chapter I

It was later during World War II that Soviet closed sea doctrine requiring authorization by the coastal State as a condition of passage for foreign warships through the territorial sea was expressed more forcefully. The issue of prior authorization by the coastal State for the passage of foreign war vessels was one of the key legal questions addressed by the International Court of Justice in the Corfu Channel case.175 Although the Court decided that in straits used for international navigation the coastal Sate could not make prior consent and notice a condition of passage, a dissenting view was written by the Soviet Justice. The noted Soviet jurist and first Soviet Judge to serve on the International Court of Justice S.B. Krylov, in his dissenting opinion against the majority view that foreign flagged war ship enjoyed the right of innocent passage through straits used in international navigation, reflecting the essence of the Soviet closed sea doctrine, that the coastal State reserved the right to regulate the passage of warships through its territorial sea.176 He reiterated this position in 1955 during the Seventh Session of the International Law Commission.177

3.2 Marine Regionalism in the Law of the Sea During the 1970s international legal scholars debated the possibility and role of “regionalism” in law of the sea. Lewis Alexander was one of the first international legal scholars to undertake defining the role of marine regionalism for the new oceans law framework that was being developed at the Third Law of the Sea Conference (UNCLOS III), and particularly its application to semi-enclosed seas.178 While it was not clear how marine regionalism would actually function, as no such model existed, Alexander hypothesized that a special regional regime for semi-enclosed seas could be based on two different categories: one which would be exclusionary – that is littoral states would exclude outsiders from certain types of activities within the sea, such as military vessels, scientific vessels, potential polluters such as oil tankers and LNG carriers, or simply impose their own pollution standards.179 A second category

175 Corfu Channel Case (U.K. v. Albania) 1949 ICJ Reports 4 (Judgment of 9 April). 176 Id., at 74. 177 Summary Records of the 307th Meeting, 1 Y.B. INT’L L. COMMISSION 145 (1955). 178 Lewis M. Alexander, Regionalism and the Law of the Sea: the Case of Semi-enclosed Seas, 2 OCEAN DEV. & INT’L L.J.151 (1974). Professor Alexander defined a semi-enclosed seas as one that had an area of at least 50,000 nautical miles, and be a ‘primary’ sea, rather than an arm if a larger semi-enclosed water of body, At least fifty percent of its circumstance had to be occupied by land and the width of the connector between the sea and the open ocean could not represent more than twenty percent of the sea’s total circumstance. According to his definition there were twenty-five semi-enclosed seas of the world. See also, Lewis M. Alexander, Special Circum- stances- Semi-enclosed Seas, in Law of the Sea Institute Eighth Annual Conference, 201–216 (J.K. Gamble and G. Pontecorvo, eds., 1973); Lewis M. Alexander, Regional Arrangements in the Oceans, 71 AM. J. INT’L L. 84 (1977); Adelberto Vallega, The Regional Scale of Ocean Management and Marine Region Building, 24 OCEAN & COASTAL MGM’T 17–37 (1994); Adelberto Vallega, The regional approach to the ocean, the ocean regions, and ocean regionalisation – a post-modern dilemma, 45 OCEAN & COASTAL MGM’T 721–760 (2002). 179 Alexander, Regionalism and the Law of the Sea, Id., at 159. Historical Development of Regional Co-operation in the Black Sea 33 of such a regime would be developmental in nature; that is, the coastal states bordering a semi-enclosed sea would “join together to invest in improving the environment and the use of the seas resources.” This could include restrictive legislation, such as, fisheries conservation or pollution control measures, pollution control facilities or oceanographic data acquisitions etc.180 Later, Professor Alexander identified three categories of marine regions: (1) physical regions; (2) management regions; and (3) operational regions. The first of these categories, physical regions were identified by geographic location and proximity. The second type of region was a function of identifiable problems or group problems requiring administrative action. Such a region might or might not have any relation to marine geographic criteria. The third category of region would be based upon formal agreements, such as fisheries agreements. Other scholars subsequently adopted Professor Alexander’s definition and categorization.181 However, although the LOSC did not provide a definition of a marine region, the Convention did include a separate section for global and regional co-operation.182

3.3 UNCLOS III The concept of a closed sea as traditionally defined by Soviet doctrine was not resur- rected during UNCLOS III. To the contrary, having attained status as a major naval power, the USSR joined the USA in advocating freedom of the seas and open corridors for the passage of warships through the high seas and straits used for international navigation.183 By the time of UNCLOS III the concept of a closed sea had acquired a new identity as an enclosed or semi-enclosed sea. Rather than seeking exclusion of States the new regime would introduce a new legal approach exhorting regional co- operation. Nevertheless, in a certain sense, the Soviet legal theory of special regime for seas having limited access to the oceans and which were bordered by two or

180 Id. 181 Boleslaw Adam Boczek, Global and Regional Approaches to the Protection and Preservation of the Marine Environment, 16 CASE W. RES. J. INT’L L. 39 (1984); Boleslaw Adam Bozcek, The Baltic Sea: A Study in Marine Regionalism, 23 GERMAN Y.B. INT’L L. 196–230 (1980); Malgosia Fitzmaurice, International Legal Problems of the Environmental Protection of the Baltic Sea, (1992); M. Eduarda Gonçalves, Concepts of Marine Region and the New Law of the Sea, 3 MARINE POL’Y 255–63 (1979). 182 Part XII, Section 2. For an in-depth analysis of the development of regionalism in the law of the sea, see: 13 INT’L J. COASTAL & MARINE L. 299–486 (Erik Franckx & Marc Pallemaerts, eds., 1998); The Regional Approach to the Oceans: Concepts and Policy, 24 Oceans & Coastal Mgmt 1–84 (1994). 183 The Soviet Draft Articles on Straits Used for International Navigation presented to Sub-Com- mittee II on 25 July 1972 provided that all vessels enjoy freedom of navigation through straits used in international navigation the same as ships enjoyed on the high sea. See, R.P. Anand, Freedom of Navigation Through Territorial Waters and International Straits, 14 ITALIAN J. INT’L L.169, 181–184 (1974); José A. De Yturriaga, Straits Used for International Navigation 99–102 (1991); Hugo Caminos, The Legal Regime of Straits in the 1982 United Nations Convention on the Law of the Sea, 250 Receuil des Cours 13–245, 68–73 (1987). 34 Chapter I more coastal states was in fact being recognized by international law, although in a manner that did not threaten the cherished principle of freedom of the seas. The Soviet concept of a closed sea had survived but its form and objective would differ. A 1988 Soviet textbook on the law of the sea in regard to semi-enclosed and enclosed seas under articles 122 and 123 of the 1982 LOSC noted “the status of the semi-enclosed and enclosed seas has been historically governed on a regional, not universal basis. For example, the Black Sea and Baltic Sea are essentially bays of the coastal states.”184 This view, which otherwise would be inconsistent with international law, was implicitly meant to be metaphorical and not a legal statement on the legal status of bays.185 The textbook observed that because the Black Sea and the Baltic Sea did not have sea-lanes of universal importance they were of limited regional importance and thus they were “enclosed” seas. However, in this case the authors refrained from advocating the traditional Soviet “closed sea” doctrine.186 The creation of this new category of “regional” seas was a result of the recognition by the international community that certain seas, because they occupy a smaller marine space or because of their limited access to the world’s oceans, when bordered by multiple coastal States faced special concerns. Many countries expressed this view during the Second Committee meeting of UNCLOS III, arguing that such seas required a special regime.187 Initially, the subject matter of a separate category of enclosed and semi-enclosed seas was introduced as a problem of territorial delimitation. The inability to arrive at an international agreement for a uniform breadth of territorial sea was a continuing impasse of previous law of the sea conferences: the 1930 Hague codification conference had failed to produce an agreement because of the inability to agree upon a common territorial sea breadth as had the Second Law of the Sea Conference (UNCLOS II). And while the 1958 Geneva Law of the Sea Conference produced four conventions,188 it nonetheless failed to establish a

184 E.P. Andreyev, I.P. Blishchenko, S.A. Gureyev, G.G. Ivanov, G.F. Kalinkin, V.A. Kiselev, A.L. Kolodkin, M.N. Kopylov, V.S. Kotlyar, V.N. Kulebyakin, N.I. Larisin, JuM. Rybakov, I.E. Tarkhanov & A.V. Sharov, The International Law of the Sea 83–84 (Transl. D. Belyavsky, 1988). 185 Robin R. Churchill & A. Vaughn Lowe, The Law of the Sea, 3rd ed., 41–46. (1999). The legal status of bays in the law of the sea is important in relation to determining the baselines from which to measure and delimit the territorial sea. Article 10 of the 1982 LOSC provides for five different types of bays: (1) Bays that form part of the internal waters of a State as a result of drawing straight lines in accordance with article 7 of the Convention; (2) Juridical bays with natural entrances of less than 24 nm; (3) Juridical bays with natural entrances greater than 24 nm; (4)Bays to which are subject to claims by more than one State and not subject to article 10; and (5) Historic bays that are not subject to the straight line method of delimitation under Article 7. According to the Soviet position the Black Sea as one large Bay would result in no territorial sea. See Donald R. Rothwell & Tim Stephens, The International Law of the Sea 46–51 (2010). 186 However, according to the 1988 textbook because of the enclosed nature of such seas there was no reason to accord the same rights of passage to non- coastal States through straits that lead to enclosed seas. The status of the Black Sea under the 1936 Montreux Convention was given as an example. Id. 187 Second Committee, 38th Meeting (1974) II Off. Rec. 273. 188 The 1958 Geneva Conventions on the Territorial Sea and the Contiguous Zone, 29 Apr. 1958, 516 U.N.T.S. 205; Convention on the High Seas, 29 Apr. 1958, 450 U.N.T.S. 11; Convention on the Historical Development of Regional Co-operation in the Black Sea 35 uniform limit on the breadth of the territorial sea leaving the issue to be carried over into the historic UNCLOS III.189 The matter of the breadth of the territorial sea continued to be an important issue during UNCLOS III influencing the determination of what would be the legal regime for straits used in international navigation and archipelagic states. UNCLOS III served as a spring board for establishing a new separate category of seas: enclosed or semi-enclosed seas.190 During UNCLOS III Turkey introduced several draft texts in an effort to create a separate category and set of rules for maritime boundary delimitation in seas having special characteristics such as enclosed and semi-enclosed seas. The sea that Turkey had in mind was the Aegean Sea, where a band of Greek Islands closely hugged the Turkish coast. The expansion of the territorial sea to 12-nautical miles would result in a significant limitation on Turkey’s access to the high seas and navigational rights. However, the Turkish proposals did not elaborate upon a general regime for enclosed and semi-enclosed seas but rather narrowed its application of special rules to the establishment of a special delimitation regime which would be based upon the application of equitable principles and the agreement of opposite or adjacent coastal States.191 While the Turkish proposals did not succeed in creating a special regime for maritime delimitation in enclosed or semi – enclosed seas it opened the door to the idea of a special regime for marine conservation in such as seas. The Swedish Representative during the Second Committee supported the need for a separate category of seas as “each enclosed sea has its own particular problems and each warranted its specific solution.” It was particularly the smaller seas bordered by two or more States which, according to the Swedish Representative, presented the “most acute problems” which could not be solved by “global norms” including the sensitive matter of delimiting the breadth of the territorial sea in a limited marine space.192 Other delegations saw the issue of enclosed and semi-enclosed seas in a

Continental Shelf, 29 Apr. 1958, 499 U.N.T.S. 311; Convention on Fishing and Conservation of the Living Resources of the High Seas, 29 Apr. 1958, 559 U.N.T.S. 285. 189 Churchill & Lowe, The Law of the Sea, supra note 185, at 77–81; Anand, supra note 180, at 170–71. The Soviet position regarding the rights of passage through Straits for warships through international straits is a marked change from its position during the 1958 Law of the Sea Confer- ence. See William R. Slomanson, Free Transit in Territorial Straits: Jurisdiction on an Even Keel? 3 Calif. W. Int’l L.J 375 (1972–73); Keith D. Lawrence, Military-Legal Consideration in the Extension of Territorial Sea, 29 MIL. L. REV. 47 (1965). 190 During UNCLOS III the sub-category of enclosed or semi-enclosed seas was included in Item 17 of Sub-Committee II of the Sea Bed Committee within the context of the breadth of the territorial sea. It would ultimately enjoy a completely separate identity in Part IX of the 1982 U.N. Convention on the Law of the Sea, entitled Enclosed or Semi-Enclosed Seas in Articles 122 and 123. United Nations Convention on the Law of the Sea 1982 – A Commentary, Vol. III, 344 (Myron H. Nordquist, Neal R. Grandy, Satya A. Nandan & Shabtai Rosenne, eds., 1995). 191 Doc. A/Conf.62/C.2/L.8, Second Committee (1974) I Off. Rec. At the second session of the Conference in 1974, Turkey submitted a draft provision that provided for the equitable application in enclosed or semi-enclosed seas of the general rules set out in the chapters relating to the territorial sea and EEZ. This, together with the proposal of Uruguay was reflected in Formula A of provision 223 of the Main Trends Working Paper. III Off. Rec. 111. 192 Supra note 190, at 344. 36 Chapter I broader context that also included environmental concerns. Several states raised the special concerns of enclosed and semi-enclosed seas in relation to protection of the marine environment and management of resources For example, the Iraqi draft specifically enumerated the management, preservation, exploration and exploitation of marine living resources in semi-enclosed and enclosed seas beyond the territorial sea as issues which were to be agreed upon by the coastal States by regional arrangements taking into account the activities of international organizations[sic] concerned in these fields. The Iraqi proposal provided for the joint management among riparian States and that rules and regulations were to be based upon internationally agreed standards.193 During the 38th meeting of the Second Committee the Iranian Representative explained in some detail the need for a separate category in the new Convention for enclosed and semi-enclosed seas. He pointed out that “[t]he problems raised by the semi-enclosed seas with regard to the management of their resources, international navigation and the preservation of the marine environment justified granting them a particular status constituting an exception to the general rule.” The Iranian submission was similar to the Iraqi proposal but more specific on the nature of the co-operation among the coastal States by providing that in preserving and protecting the marine environment of an enclosed or semi-enclosed sea the coastal States may:

Adopt regional rules and standards aimed at the better protection of their environment against marine pollution. Co-ordinate their activities in relation to the management and exploitation of the renewable resources of the enclosed or semi-enclosed sea under regional arrangements.194 The delegate for France, on the other hand, at the Second Committee meeting, voiced a strong objection to the concept of enclosed and semi-enclosed seas stating that these were not part of a “traditional concept of international law” being of a purely geographical notion. The French delegate argued that creating special rules for these seas would risk establishing a mare clausum.195 France’s main concern seemed to be the fear that any special rule or regime created for enclosed seas would entail restricting freedom of navigation and over flight rights. A similar concern was voiced by the Israeli Representative, who unlike his French counterpart, recognized the special needs of semi-enclosed and enclosed seas but conditioned on not dis- turbing freedoms of navigation and over flight.196 The inclusion of semi-enclosed and enclosed seas as a separate section in Part IX of the 1982 LOSC marked a new system of environmental governance which sought to balance the over-riding right of sovereignty to exploit resources under a State’s jurisdiction with a lex communis approach of safeguarding common interests and

193 U.N.Doc.A/Conf.62/C.2/L.71 and Add.1 and Add.2 (1974), III Off. Rec. 236. 194 Second Committee, 38th Meeting (1974) II Off. Rec. 273. 195 Second Committee, 38th Meeting (1974) II Off. Rec. 276. 196 Id., at 274. Historical Development of Regional Co-operation in the Black Sea 37 the rights of neighbors. Although Part IX did not create a mandatory “shall” legal regime but rather an exhortatory “should” regime, it did recognize and isolate the singular needs and challenges of geographically restricted semi-enclosed seas such as the Black Sea, Baltic and Mediterranean seas. While the efforts of the USSR during the 1958 Law of the Sea Conference for the recognition of a separate classification of a closed sea had been summarily rejected, decades after Malinin had put forth the notion of a category of regional seas, the Third Law of the Sea Conference recognized the special need for the first time in international law for a separate category of seas, referred to as “enclosed and semi-enclosed seas.” The final drafts of what eventually became Article 123 of the 1982 Law of the Sea Conference did not incorporate many of the proposals put forth by the different official delegations. And while the text prepared by the informal consultative group was very similar to the Turkish proposal, the provisions on enclosed and semi-enclosed seas in the ISNT/Part II Articles 133 and 134 would omit all reference to delimitation issues as well as the navigational rights of vessels. The emphasis was instead placed on the protection and preservation of the marine environment, very similar to the original Iraqi proposal. The final text eventually adopted as article 123 of the 1982 Convention was entitled Co-operation of States bordering enclosed or semi-enclosed seas. The article provided that:

States bordering an enclosed or semi-enclosed sea should co-operate with each other in the exercise of their rights and in the performance of their duties under this Convention. To this end they shall endeavour, directly or through an appropriate regional organisation: (a) to co-ordinate the management, conservation, exploration and exploitation of the living resources f the sea; (b) to co-ordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment; (c) to co-ordinate the scientific research policies and undertake where appropriate joint programmes of scientific research in the area; (d) to invite, as appropriate, other interested States, or international organisations to co-operate with them in furtherance of the provisions of this article.197

4. Regional Co-operation in Part IX of the 1982 LOSC

4.1 Sources of the Duty of Co-operation under International Law The post-World War II international governance structure, as embodied in the United Nations, is based on the concept of collective action for the maintenance of international peace and security. As stated in Article 1, paragraph 3 of the UN Charter, one of its principal purposes is “[t]o achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian

197 A/CONF.62/L.78 (Draft Convention, 1981) article 123. XV Off. Rec. 179, 193. 38 Chapter I character . . .”198 Although the UN Charter did not make express reference to the protection of the environment, UNGA Resolution 3281 on the Charter of Economic Rights and Duties of States,199 exhorted all States “to co-operate in evolving norms and regulations in the field of environmental law.” The overall duty of co-operation of states as a key aspect of peaceful relations was affirmed in 1970 with the adoption by the United Nations General Assembly of the Principles of International law Con- cerning Friendly Relations and Co-operation among states in accordance with the Charter of the United Nations.200 In the 1974 Resolution, States recognized the need for international co-operation in the protection of the environment on the Charter of Economic Rights and Duties of States, which exhorted all States to co-operate “in evolving international norms and regulations in the field of the environment”.201 The general duty of co-operation between States according to Kiss and Shel- ton “derives from the very essence of general international law. . . . In the field of environmental protection, international co-operation is necessary to conserve the environment in its totality . . .”202 The duty of co-operation in international law can be traced to the duty of good neighborliness, or the familiar adage of Roman law, sic utere iure tuo ut alterum no laedus.203 Implicit in the process of international co-operation is the duty of consultation,204 prior notification205 and exchange of information.206 The central role of co-operation for the protection of the environment was recognized by the 1972 Stockholm Declaration which in its preamble underlined

198 See also “Declaration on Principles of International Law Friendly Relations and Co-Operation among States in Accordance with the Charter of the United Nations”, 1883rd plenary meeting, 24 October 1970; Moon Treaty establishes that all activities on the moon shall be carried out in accordance particularly with the Declaration on Principles of International Law concerning Friendly Relations and Co-operation Among States. 199 GA Res. 3281 (XXIX) 1974, 29 U.N. GAOR Supp (No. 31), p. 55. 200 GA Res. 2625 (XXV) 1970, U.N. GAOR 25th Sess. 201 GA Res. 3281 (XXIX) 1974, U.N. GAOR 29th Sess., Supp. No. 31 at 55. 202 Alexandre Kiss & Dinah Shelton, International Environmental Law, supra note 53, at 28. However, in favor of a more limited application of the duty of international cooperation in the case of major pollution incidents and security interests of States see P.T. Stoll, The International Environmental Law of Cooperation in Enforcing Environmental Standards: Economic Mechanisms as Viable Means? (Rudiger Wolfrum, ed., 1996). 203 Philippe Sands, Principles of International Environmental Law 249 (2nd ed., 2004). The principle of sic uetere tuo et alienum non laedus was the basis of the decision in the Trail Smelter Case, which has served as the principal precedent for the international law principle that no state may allow its territory to be used to cause harm to another State’s territory. (U.S./Can.), 3 R.I.A.A. 1905 (1941), reprinted in 35 AM. J. INT’L L. 684 (1941). See Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration (Rebecca M. Bratspies & Russell A. Miller eds., 2006). 204 Lac Lanoux Arbitration (Fr. V. Sp.) 24 ILR 101 (1957); Gabĉykovo-Nagymoros (Hung. V. Slov.) 7 I.C.J. Rep. (1997); Malaysia v. Singapore Land Reclamation (Malay. V. Sing), Provisional Measures, Order (No. 12), (2003) ITLOS, available at www.itlos.org; Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malay. v. Sing.), XXVIII Rep. Int’l Arb. Awards 133–145 (2005). 205 Corfu Channel case, supra note 175, at 146. 206 Case concerning Land Reclamation by Singapore in and around the Straits of Johor, supra note 204. Historical Development of Regional Co-operation in the Black Sea 39 that the “growing class of environmental problems, because they are regional or global in extent or because they affect the common international realm, will require extensive co-operation among nations and action by international organizations in the common interest.”207 Principle 24 of the Stockholm Declaration recognized that “[i]nternational matters concerning the protection and improvement of the environment should be handled in a cooperative spirit by all countries, big and small, on an equal footing.” and that [c]ooperation through multilateral or bilateral arrangements or other appropriate means is essential to effectively control, prevent, reduce and eliminate adverse environmental effects resulting from activities conducted in all spheres, in such a way that due account is taken of the sovereignty and interests of all States. Ten years later, Principle 27 of the Rio Declaration ventured further in proclaiming, “States and people shall co-operate in good faith and in a spirit of partnership in the fulfillment of the principles embodied in this Declaration and in the further development of international law in the field of sustainable development.” (Emphasis added).208 Where Stockholm exhorted co-operation, the Rio Principles mandated it. Article 123 of the 1982 LOSC exhorts coastal States bordering a enclosed or semi-enclosed, as defined in article 122, to co-operate in the exercise of rights and performance of duties, with a special focus on the marine environment and scientific research. The language of article 123 is in the soft form of should and not the mandatory shall.209 This difference in the level of “obligation” is somewhat confus- ing in light of the general duty of all States to co-operate at the global and regional levels as mandated under article 197 of the 1982 LOSC. However, a legal nuance separate these two ostensibly overlapping provisions, in that Article 197 mandates co-operation in “formulating and elaborating international rules, standards and recommended practices and procedures . . .”, that is in the norm-making function of States, whereas article 123 addresses implementation of these norms, as reflected in the language “in the exercise of their rights and in the performance of their duties,”

207 Declaration of the United Nations Conference on the Human Environment, adopted in Stockholm during the United Nations Conference on the Human Environment, 5 to 16 June 1972. The Report of the UN Conference on the Human Environment, Stockholm, 5–16 June 1972, UN Doc.A/CONFF.48/14/Rev.1; UNGA Res. 2994 (XXVIII), noting with satisfaction the report of the Conference. U.N.Y.B. 330 (1972). On the history of the 1972 Stockholm Conference see SANDS, supra note 203, at 35–40. 208 The Rio Declaration on Environment and Development; The Report of the Un Conference on Environment and Development, Rio de Janeiro 3–14 June 1992, UN Doc. A/CONF.151/26/Rev.1 (vols I–III). 209 For a discussion on the legal implications of the hortatory “should” versus the imperative “shall” for the duty to co-operate within the context of the 1982 LOSC see Bernard H. Oxman, Observations on the Interpretation and Application of Article 43 of the United Nations Convention of the Law of the Sea with Particular Reference to the Straits of Malacca and Singapore,” 3 SINGAPORE Y.B. INT’L L. 408–26, 410 (1999). The author cautions against placing too much emphasis on the use of the word “should” rather than “shall” in light of the “clear duty of States to co-operate to protect and preserve the marine environment from pollution of all sources, including accidents” under the 1982 LOS Convention. 40 Chapter I through coordination directly or through an appropriate regional organizations, which in most cases would likely be the UNEP Regional Seas Programme. Neverthe- less, article 123 leaves open a number of questions as to the scope of co-operation among States bordering a sea defined under article 122, the contours of such co- operation and to what extent a “duty of co-operation” arises.

4.2 Judicial Interpretation of Article 123 Two cases have directly raised the question of the duty for States to co-operate under article 123 of the LOSC. Both cases were brought before the International Tribunal for the Law of the Sea (ITLOS) for provisional measures.210 However, the Tribunal did not directly address the questions raised as to the nature of the obligation under article 123 in these cases. The first case, the MOX Plant case involved a request for provisional measures under article 290(5) of the 1982 LOSC pending a request for arbitration under Annex VII of article 287 of the 1982 LOSC that was instituted by Ireland against the United Kingdom. 211 The request for provisional measures was based on the failure of the United Kingdom to suspend authorization of the operation of a MOX Plant located in Sellafield, along the coast of the Irish Sea, and the international shipment of radioactive materials. In support of its request for provisional measures Ireland included the allegation that the UK had violated its duty to co-operate as required under articles 197 and 123 of the 1982 LOSC, and general international law. Ireland argued that the duty to co-operate was “a fundamental principle in the regime of the prevention of pollution of the marine environment under Part XII of the Convention and general international law.”212 Much of the basis for Ireland’s claim rested on the failure of the United Kingdom to respond to Ire- land’s expressions of concern and its numerous requests for information relating to the MOX Plant, as well as confirmation that the United Kingdom would not autho- rize the operation of the plant.213

210 The Tribunal may grant provisional (temporary) measures to prevent serious harm to the marine environment in accordance with article 290 of the 1982 LOSC. 211 International Tribunal for the Law of the Sea (ITLOS): The MOX Plant Case (Ireland v. United Kingdom 41 I.L.M. 405 (2002). The case on the merits of the Mox Plant Case dispute was submitted to the Permanent Court of Arbitration in The Hague. However, in face of the potential exclusive competence of the European Community and the pre-emptory jurisdiction of the European Court of Justice the Tribunal decided to suspend proceedings on the case. Ireland v. United Kingdom (“MOX Plant Case”), Permanent Court of Arbitration, The Hague (2003). Furthermore, following a complaint filed by the European Commission against Ireland the Euro- pean Court of Justice Ireland ruled that by bringing the case before the International Tribunal for the Law of the Sea and the Permanent Court of Arbitration in the Hague Ireland had violated the provisions for the exclusive jurisdiction of the European Community. Commission of the European Communities v. Ireland, 30 May 2006, Case C-459/03. 212 Request for provisional measures and statement of the case submitted on behalf of Ireland (Ireland v. United Kingdom), 9 November 2001. 213 Ireland instituted arbitration proceedings against the UK for its failure to provide information under the OSPAR Convention. Based on this, the Annex VII Arbitral Tribunal found it lacked competence to decide the case, as the OSPAR Convention had no provisions authorizing dispute Historical Development of Regional Co-operation in the Black Sea 41

Ireland had argued that co-operation as between coastal States under article 123 was in addition to the general obligation of co-operation at the global and regional levels under article 197 of the 1982 LOSC, claiming that this was necessitated by the inability of semi-enclosed seas to disperse pollution effectively.214 Ireland argued that there was a linkage between article 123 and article 197, the language of which employs the mandatory “shall” and that of the exhortative “should” in article 123. Ireland made an effort to further buttress the duty under article 197 with article 123 for enclosed or semi-enclosed seas. In fact, Ireland argued that because the Irish Sea was a semi-enclosed sea and the environmental effects of radio nuclides that there was a “heightened” obligation of co-operation as provided under article 123 of the 1982 LOSC.215 Ultimately, the Tribunal did not find there to be adequate urgency to adopt the provisional measures as requested by Ireland given the short time until the Arbitration Tribunal would hear the case on the merits, but did issue an order for the Parties to co-operate.216 In the land reclamation case brought by Malaysia against Singapore the Tribunal reaffirmed its view that the duty to co-operate was a “fundamental principle in the prevention of pollution of the marine environment under Part XII of the Convention.217 In its claim against Singapore for provisional measures, Malaysia included the allegation that Singapore had breached its obligation under article 123 of the 1982 LOSC by failing to co-operate. The Tribunal, while denying the provisional measures requested by Malaysia, found that Singapore had failed to adequately co-operate with Malaysia and in a unanimous decision ordered the Parties to co-operate by “promptly” establishing a group of experts to conduct a study on the effects of the land reclamation undertaken by Singapore, engage in a regular exchange of information, and consult with each other to reach an agreement on temporary measures. 218 settlement by ITLOS or any other ad hoc dispute settlement mechanism under the 1982 LOSC. Ireland instituted arbitration proceedings on the issue of access to information under Article 9 of the OPSAR Convention against the United Kingdom in the Permanent Court of Arbitration. See Dispute Concerning Access to Information Under article 9 of the OSPAR Convention (Ir. v. U.K.) (Perm. Ct. Arb. 2003). The Arbitration Tribunal accepted jurisdiction of the case but ultimately found that the information requested by Ireland in relation to the MOX Plan did not meet the requirements of article 9(2) of the OSPAR. In turn the European Commission instituted proceedings against Ireland before the European Court of Justice on the grounds that Ireland had failed to fulfill its obligations under articles 10 EC and 292 EC and articles 192 EA and 193 EA by instituting dispute settlement proceedings before the ITLOS and the PCJ. The European Court of Justice found that Ireland had violated its obligations as claimed by the European Commission. Commission of the European Communities v. Ireland, 30 May 2006, Case C-459/03. 214 Supra note 212, para. 58. 215 Id., paras. 59–60. 216 Supra note 211, para. 89(1). Specifically, the Parties were prescribed to cooperate in the exchange of information regarding the possible consequences for the Irish Sea in commissioning the Mox Plant, to monitor the risks or the effects of the operation of the plant on the Irish Sea and to devise as appropriate measures to prevent pollution of the Irish Sea. 217 Supra note 204. 218 Id., para. 106. The case on the merits had been submitted to the Permanent Court of Arbi- tration under article 290, Annex VII of the LOSC. The Parties ultimately concluded a settlement 42 Chapter I

However, the Tribunal did not state the basis of its order leaving. The Land Reclama- tion case would have provided another opportunity for the Tribunal to expand upon the meaning of article 123. The substantive meaning of co-operation in international law has been given limited definition in legal instruments and judicial decisions. Consequently state practice, especially within the context of regional co-operation is important. With- out question cooperation is key where there is a shared resource, such as a common sea. In this regard, the UNEP Regional Sea Programme remains the primary regional mechanism for cooperation and to implement Principles 24 of the Stockholm Con- vention, 27 of the Rio Declaration, and articles 197 and 123 of the 1982 LOSC.

5. Discussion

The Black Sea, once politically isolated for centuries from the world, played an important role in shaping European history and in indirectly influencing the development of the law of the sea, and in particular the role of co-operation in enclosed or semi- enclosed seas. Following three centuries of enclosure by the Ottoman Empire, the Black Sea emerged as a strategic sea shared by the Russian and Ottoman Empires. At times they warred with each other and at times the two Powers collaborated to exclude non-Black Sea Powers from their shared sea. During the 19th and early 20th centuries the regulation of maritime access to the Black Sea by foreign powers was a crucial part of world politics, which over time came to be reflected in the development of modern international law and law of the sea. The Black Sea also created international legal history. For example, the 1840 Con- vention of London created what may be the first objective rule of international law for passage through a strait used in international navigation.219 This rule, which effectively banned the passage of war vessels through the Istanbul Strait into the Black Sea and vice versa, would be carried over in time to the twentieth Century and reflected in the 1923 and 1936 Conventions regulating passage through the Turkish Straits. With some modification in favor of the Black Sea states, the restriction on the passage of war vessels through the Turkish Straits into and from the Black Sea adopted under these two Conventions continues to exist today, creating the only legally “quasi-closed” sea under international law. Another illustration of the influence of the Black Sea in international law and the law of the sea was with the Treaty

agreement that included the terms of co-operation as ordered by the ITLOS in the provisional measures case. Malaysia v. Singapore Award, (Settlement Agreement of 26 April 2005), available at www.pca-cpa.org. 219 Supra note 124. Historical Development of Regional Co-operation in the Black Sea 43 of Paris that was concluded following the 1856 Crimean War,220 which created the first sea, to be entirely neutralized.221 However, a little known historical fact is the foundation laid by centuries of political battles over maritime access to the Black Sea that ultimately became the impetus for establishing a special regime of co-operation for coastal States in enclosed or semi-enclosed seas under Part IX of the 1982 LOSC. The origins of the modern Soviet law of the “closed doctrine” was first developed for the Black Sea, under the 1921 Treaty of Friendship,222 and officially articulated during the 1923 Lausanne Straits Conference and again during the 1936 Montreux Straits Conference. The legal doctrine that the coastal States of enclosed or semi-enclosed seas enjoyed legal superior rights over the sea became known as the “closed sea” doctrine.223 While the international legal community ultimately rejected it, its remnants were redefined during the UNCLOS III. The underlying principle of the closed sea doctrine lay in the view that States bordering a common sea had a superior interest in determining its legal regime. The idea of a special relationship between the bordering States of a sea of limited marine space also was the underlying rationale of Turkey’s efforts during UNCLOS III to create a special regime of maritime delimitation for semi-enclosed and enclosed which would be based on the agreement of the bordering States.224 While the Turk- ish proposal was rejected the principle for a special regime remained and carried over into the question of environmental protection and resource management. The need for a special regime of co-operation among bordering states of a semi-enclosed or enclosed sea, such as the Black Sea, was recognized and was adopted as Part IX, articles 122–123, of the 1982 LOSC. The paradoxical journey from the battles of the Black Sea to the most important legal instrument for securing peaceful uses of the oceans under the 1982 LOSC eventually gave the Black Sea a special regional regime, but one where the emphasis was on creating a regional governance where the focus was the protection of the sea itself and the rights of the bordering States over the sea. However the legal nature of article 123 remains unclear. The language employs the non-binding exhortative should in contrast to the mandatory language of the corollary provision in article 197 mandating international co-operation. However, while closer inspection of the respective objectives of these two provisions reflects a difference, there is an argument that these two provisions enjoy a symbiotic legal relation, where article 123 provides the implementing function of the duty of co-operation in article 197. The legal difference between “should” and “shall” in reality may have less importance when placed within the context of the regional seas

220 Supra note 130. 221 Article IX. Id. 222 Supra note 165. 223 Supra note 155. 224 Supra note 191. 44 Chapter I programmes established by UNEP for the protection of the marine environment. The importance of how co-operation is implemented at the regional sea level is critical for ensuring the success of preserving the marine environment, Consequently, without undermining the importance of the legal nature of article 123, and 197, for purposes of protection of the marine environment, especially in semi-enclosed seas such as the Black Sea, the ability of regional mechanisms to develop and implement the necessary norms, measures and programmes for ensuring sustainable environmental governance is the critical issue to be examined. Chapter II

State of the Black Sea: The Making and Unmaking of a Sea

1. Evolution of the Black Sea: From Sea to Lake to Sea

1.1 Birth of a Sea The origin of the Black Sea dates back to fifty to sixty million years ago when an immense oceanic basin known as the Tethys Sea extended from Southern Europe to Central Asia, linking the Atlantic and Pacific Oceans.225 Then, between five to seven million years ago, as a result of major crust movements that created the modern Alps, Carpathian, Balkan and Caucasus Mountains, this vast sea broke up into several brackish basins. The Sarmatic Sea, one of these brackish basins, extended from what is today Vienna to the foothills of the Tien Shan Mountains in Kazakhstan. Approxi- mately three to five millions years ago the Sarmatic Sea shrank creating a connection with the World Ocean, which in turn brought an increase of saline water and new marine species and plants. However, during the Pliocene period, some 1.5–3 million years ago, this ocean connection was lost, which resulted in a decrease in salinity transforming the Sarmatic Sea into the almost entirely freshwater Pontian Sea-Lake. One million years ago the Pontian Sea-Lake decreased further in size and became the Chaudian Sea-Lake. The existing marine fauna was replaced with brackish water fauna, representatives of which can still be found today in the Black Sea, Azov Sea and the Caspian. They are known as Pontian relics or Caspian fauna. During the late Pontian stage, crust movements in the earth continued, creating the relatively autonomous bodies of water of today’s Black Sea, Azov Sea and the Caspian.226 The ice age also had an important effect on the size and shape as well as flora and fauna of the eventual Black Sea. As the ice began to melt during the warmer interglacial period, approximately 400,000–500,000 years ago, the ice meltwaters filled the Chaudian Sea-Lake, which then became the Paleoeuxinian basin. During this time period the basin was connected to the Sea of Marmara through a narrow link of water known today as the Strait of Istanbul. However, at that time the Sea of Marmara

225 Yuvenaly Zaitesev & Vladmir Mamev, Biological Diversity in the Black Sea: A Study of Change and Decline, Black Sea Environmental Series, Vol. 3 (1997). 226 One of the legal controversies surrounding the Caspian is whether it is a lake or a sea. The legal status impacts the applicable rules and principles for delimitation among the five bordering countries. See Barry Hart Dubner, The Caspian: It is a Lake, A Sea or an Ocean and Does it Matter? The Danger of Utilizing Unilateral Approaches to Resolving Regional International Issues, 18 DICK- INSON J. INT’L L. 253 (2000).

Table 1. Timeline for the Formation of the Black Sea 50–60 million years ago Tethys Sea 5–7 million years ago Sarmatic Sea 1.5–3 million years ago Sarmatic Sea becomes the Pontian Sea-Lake 1 million years ago Pontian Sea Lake – Chaudian Sea-Lake 400–500,000 years ago Chaudian Sea-Lake became Paleoeuxinian basin 150,000–100,000 years ago Strait of Çanakkale Karangat Sea was formed 18,000–20,000 years ago Karangat Sea became the Neoeuxinian Lake-Sea 12,500 years ago 10,000 BP /6,845 BP Current Black Sea and Azov Sea and 7,150 BP was not yet linked to the Mediterranean. The link between the future Black Sea and the Mediterranean did not occur until 150,000 to 100,000 years ago during the Riss- Würm Interglacial Period when the Strait of Çanakkale was formed. During this new phase a basin known as the Karangat Sea was formed. The Karangat Sea had a higher level of salinity than the current Black Sea, and new representatives of marine flora and fauna were introduced into Karangat Sea along with ocean waters.227 However, 18,000–20,000 years ago, with the end of the last Würm Glaciation Period, the Karangat Sea was filled with melt water creating the Neoeuxinian Lake- Sea. The inundation once again resulted in a loss of connection to the Mediterranean Sea. Melting glacial waters filled the sea and reduced the level of salinity causing the disappearance of the oceanic flora and fauna and a more predominant presence of Pontiac fauna.228 The exact dating of the creation of the current Black Sea is still debated. According to some scientists the Sea was formed as far back as 12,500 years ago229–10,000 BP230 while others date it much more recently to between approximately 6,845 BP231 and 7,150 BP.232 Nonetheless, the seepage of more saline Mediterranean Sea water brought new species into the Black Sea. Today approxi-

227 Yu. Zaitsev and V. Mamaev, Marine Biological Diversity in the Black Sea a Study of Change and Decline, supra note 225, at 3. 228 Exotic Species in the Aegean, Marmara, Black and Azov Seas (Yuvenaly Zaitsev & Bayram Öztürk eds., 2001); Zaitsev & Mamaev, Id. 229 A.E. Aksu, Persistent Holocene Outflow from the Black Sea to the Eastern Mediterranean Con- tradicts Noah’s Flood Hypothesis, 12 GSA Today 4 (2002). 230 See, A.E. Aksu, R.N. Hiscott, M.A. Kaminski, P.J. Mudie, H. Gillespie, T. Abrajano & D. Yaşar, Aspects of carbon isotope biogeochemistry of late Quaternary sediments from the Marmara Sea and Black Sea, 190 Marine Geology 151–164 (2002); A.E. Aksu, R.N. Hiscott, M.A. Kaminski, P.J. Mudie, H. Gillespie, T. Abrajano & D. Yaşar, Last glacial–Holocene paleoceanography of the Black Sea and Marmara Sea: stable isotopic, foraminiferal and coccolith evidence, 190 Marine Geology, 119–149 (2002). 231 Robert D. Ballard, D.F. Coleman, and G. Rosenberg, Further evidence of abrupt Holocene drowning of the Black Sea shelf ”, 170 Marine Geology 253–261(2000); R.D. Ballard, D.F. Coleman & G. Rosenberg, Erratum to Further evidence of abrupt Holocene drowning of the Black Sea shelf, 170 MAR. GEOLOGY 253–261 (2000). 232 W.B.F. Ryan and W. Pitman, An Abrupt Drowning of the Black Sea Shelf, 138 MAR. GEOLOGY 119–126 (1997). State of the Black Sea: The Making and Unmaking of a Sea 47 mately eighty percent of Black Sea fauna have Mediterranean origins and for this reason are referred to as “Mediterranean immigrants.”233

1.2 Geomorphology of the Black Sea Today The Black Sea seabed is divided into the shelf, continental slope and the deep-sea depression. The Black Sea shelf occupies a large area in the northwestern part of the Sea. It is 200 km wide with a depth between 0–160 meters. The Romanian shelf covers approximately forty percent of the northwestern Black Sea shelf area but accounts for over fifty percent of the total shelf volume. Due to river runoff, the salinity level is more than 16 times less than the open sea.234 In other parts of the sea the shelf depth is less than 100 meters with a width of 2.2 to 15 kilometers. Near the Caucasian and Anatolian coast the shelf is only a narrow intermittent strip coming to an abrupt end eastward of 35 degrees 30’ (Sakarya River). The abyssal plain depth is more than 2,000 meters separated from the margins by steep continental slopes, with the exception of the shallow northeastern part of the Black Sea. The Black Sea basin at ∼ 2200 m is also known as the Euxine Abyssal Plain.235 The open areas of the Black Sea occupy over seventy-five percent of its total area.236

2. A Sea of Poison, a Sea of Life

2.1 Anoxia The isolation of the Black Sea from other seas and the World Ocean has created one of nature’s most interesting bodies of water. The only connection between the Black Sea and the outside world is through the very narrow outlet provided by the Turkish Straits. The Turkish Straits consists of the Strait of Istanbul (31 km in length), which links the Black Sea to the Sea of Marmara, an internal sea, and then through the Strait of Çanakkale (64 km) to the Mediterranean Sea. The Strait of Istanbul is extremely narrow, measuring a mere 700 meters at the Bebek-Kandilli channel significantly limiting water flow between the Black Sea and the Mediterranean Sea.

233 Exotic Species in the Aegean, Marmara, Black, Azov and Caspian Seas 125–26 (Yuve- naly Zaitsev & Bayram Öztürk eds., 2001). 234 A. Cociasu, V. Diaconu, L. Popa, L. Buga, I. Nae, L. Dorogan & V. Malciu, “The nutrient stock of the Romanian Shelf of the Black Sea during the last three decades” in Sensitivity to Change: Black Sea, Baltic Sea and North Sea, 43 (Emin Özsoy & Alexander Mikaelyan eds., NATO ASI Series, 1997). 235 A.E. Aksu, R.N. Hiscott, D. Yaşar, F.I. Işler & and S. Marsh, Sismic stratigraphy of Late Quater- nary deposits from southwesten Black Sea shelf: evidence for non-catastrophic variations ins ea-level during the law ˜˜ 10,000 years, 190 MAR. GEOLOGY 119–150 (2002). 236 M.E. Vinogradov, N.P. Nezlin & A.S. Mikelyan, Ecosystem sustainability of Open Black Sea Regions, 201–220, 203, in Conservation of the Biological Diversity as a Prerequisite for Sustainable Development in the Black Sea (V. Kotlyakov, M. Uppenbrink & V. Metreveli, eds., NATO ASI Series, 1998). 48 Chapter II

The limited connection of the Black Sea to the world oceans has created one of the world’s largest anoxic basins. A natural phenomenon, anoxia can occur in either seawater or fresh water when there is a lack of oxygen. Anoxia is generally found in areas that have restricted water exchange, such as the semi-enclosed Black Sea and Baltic Sea. Whereas anoxia is a natural occurrence hypoxia, on the other hand, is oxygen depletion of marine waters commonly resulting from human activity- induced eutrophication.237 Mediterranean Sea water with higher levels of saline enters the Black Sea as an undercurrent flowing through the Turkish Straits. The salinity level of Mediterranean Sea water is almost twice that of Black Sea. Heavier in density, Mediterranean current flows as a deepwater layer traveling south to north with a salinity rate of ∼ 39 o/oo compared to the less dense Black Sea surface layer with a salinity rate of ∼ 18 o/oo to ∼ 20 o/oo.238 This has created a density stratification of the Black Sea water column which in turn has created a large area of oxygen-depleted water – anoxia. Scientists have estimated the Black Sea has been anoxic for over seven thousand years.239 The discovery of this dual current is the foundation of European modern oceanography In 1679 Fernando Marsigli, an Italian Count and military engineer, conducted an experiment by tying corks to the ends of two ropes. From this he was able to confirm what had been observed by local fishermen, that there were two different levels of currents in the Turkish Straits: the lighter weight surface current that flowed from the Black Sea and the heavier and more salinated lower current that flowed from the Mediterranean Sea. This discovery became known as Marsigli’s corrante.240 The relationship between the Black Sea and the Turkish Straits, in terms of water exchange, can be best described as unequal: the estimates vary among scientists as to the net outflow from the Strait of Istanbul into the Black Sea. However, there is overall agreement that the outflow from the Straits of Istanbul is at least double the inflow from the Black Sea.241 A net outflow from the Black Sea of ∼ 300 km3 yr-1 is the result of excess precipitation over the Black Sea and freshwater input from

237 Nancy N. Rabalais, R. Eugene Turner and William J. Wiseman Jr., Gulf of Mexico Hypoxia, a.k.a. “The Dead Zone, 33 Ann. Rev. Ecology & Systematics, 235–263, 236 (2002). 238 A.E. Aksu, R.N. Hiscott, & D. Yaş, Oscillating Quaternary water levels of the Marmara Sea and vigorous outflow into the Aegean Sea from the Marmara Sea-Black Sea drainage corridor, 153 Mar. Geology 275–302 (1999). 239 G.A. Jones and A.R. Gagnon, Radiocarbon chronology of Black Sea sediments, 41 Deep Sea Resources 531–557 (1994). 240 Fernando Marsigli not only discovered the dual current in the Turkish Straits but went on to establish the first research center for modern oceanography in Europe. See Nadia Pinardi, Misure il mare Luigi Ferdinando Marsili Nell’egeo e Nel Bosforo 1679–1680 (2009); Charles King, The Black Sea a History 220 (2004); Margaret Deacon, Scientists and the Sea, 1650–1900 148–149 (1997); Neil Acherson, Black Sea, 2–3 (1995). 241 Zaitsev & Mamaev, supra note 225, at 14. According to authors the estimates for the volume of water flowing from the Straits of Istanbul into the Black Sea vary from 123 km3 per year to 312 km3 per year, and for the outflow from the Straits of Istanbul between 227 km3 per year to 612 km3 per year. State of the Black Sea: The Making and Unmaking of a Sea 49 large rivers exceeding evaporation.242 The slow water exchange within the Black Sea, which takes over one hundred years to renew itself, brings little fresh sources of oxygen into the sea thereby contributing to making the Black Sea the largest anoxic sea in the world. Nearly ninety percent of the Black Sea water volume is anoxic.

2.2 Hydrogen Sulfide The consequence of this stratified water body has been to fill the sea with the poisonous hydrogen sulfide gas, which causes instant death if inhaled. In the Black Sea it is the natural consequence of the combination of two phenomena: first, the rich supply of oxygen that comes into the Black Sea from the multiple rivers and second, the unique morphology of the Black Sea. The hydrogen sulfide layer lies 200–100 meters below the surface, known as the “haloclyen” or “oxyclyne” line that marks the upper limit of anoxia. Other seas such as the Baltic Sea also have hydrogen sulfide but no sea is as rich in the substance as the Black Sea. Hydrogen sulfide production appears to be the by-product of accumulated decaying organic matter over thousands of years caused in part by the inability of the heavier salty Mediterranean water to mix with the more oxygenated surface water. The thin layer of seawater extending from about 150 meters below the surface to the surface supports the unique Black Sea biology. Although the column of hydrogen sulfide has remained stable over the past 7,500 years, “the disturbance of the natural balance between the two layers could trigger irreversible damage to the people and ecosystems of the Black Sea”.243 This is also known as the “turn over” and described by scientists as the “catastrophe” scenario.244 Thus the Black Sea exists on a peril- ous balance between life and death. The presence of hydrogen sulfide has made the Black Sea and its marine living resources more vulnerable to the deleterious impacts of pollution. There are actually two different areas of hydrogen sulfide in the Black Sea: one comprises the entire deep water column, and the second is located at the North West Shelf (NWS). The difference between the two is the difference between natural evolution and anthropogenic evolution. The deep water column infused hydrogen sulfide existed before eutrophication as a result of the inflow of oxygen-rich water and lack of sufficient outlet for the resulting productive animal life, whereas the hydrogen sulfide gas that has occurred in the NWS is the direct result of eutrophication caused by human activities beginning in the 1970s. Another difference between these two phenomena is that where nature has managed to maintain a thin line of demarcation between death in the poison zone and life above it, man-made eutrophication and the resulting anoxia has destroyed what nature had preserved.

242 Aksu, Hiscott, Yaşar, Işler & Marsh, supra note 235. 243 Commission on the Protection of the Black Sea against Pollution, State of the Envronment of the Black Sea Pressures and Trends 1996–2000 3 (2002). 244 Acherson, supra note 240, at 267. 50 Chapter II

Nonetheless, the saving aspect of the NWS hydrogen sulfide zone is that it is tran- sient and short-lived, appearing only for periods of up to three weeks during the summer-autumn seasons. 245

2.3 Extreme Life Meibenthos, microscopic organisms that live on the bottom of the sea, despite their small size play an important role for nutrient cycling in the coastal ecosystem. Until recently, no studies of deepwater species’ such as meiobenthos had been conducted in the anoxic area of in the Black Sea. However, there is evidence that some life may exist in this area once presumed to be a “dead zone. Studies conducted by the Institute of Biology of Southern Seas (“NASU”) in Sevastopol indicate a possibility for the existence of multicellular benthic (bottom dwelling) animals in the Black Sea hydrogen sulfide rich strata somewhere between 470–2250 meter depth ranges. The results indicate that the deep-water marine life of the Black Sea is “unexpectedly diverse and specific in character”.246 About forty known species benthic organisms and twenty of unknown forms have been found.247 For this reason the Black Sea may have an anoxic zone but it is not “azoic” – that is “lifeless.”248

3. Decline of the Black Sea

3.1 Eutrophication The Black Sea is considered to be one of the most eutrophic seas.249 Scientists have described the environmental degradation of the Black Sea in terms such as disaster,250 doomed,251 crisis,252 and catastrophic.253 The renowned Russian scientists Professor Zaitsev observed that the Black Sea was “much more” polluted than the Mediterra- nean Sea. According to his studies one cubic kilometer of Black Sea water received annually about 20,000 kg of pollutants while the same amount of water for the

245 Zaitsev, Impact of Eutrophication on the Black Sea fauna, supra note 34. 246 N.G. Sergeeva, Meiobenthos of deep-water anoxic hydrogen sulfide zone of the Black Sea “in Oceanography of Eastern Mediterranean and Black Sea, Similarities and Differences of Two Interconnected Basins 880, 882 (A. Yilmaz ed., 2003). 247 State of the Environment of the Black Sea Pressures and Trends 1996–2000, supra note 243. 248 Sergeeva, Meiobenthos of deep-water anoxic hydrogen sulfide zone of the Black Sea, supra note 246. 249 Y. Zaitsev & B.G. Alexandrov, Recent Man-Made Changes in the Black Sea Ecosystem 25–31 in Özsoy & Mikaelyan (eds.), supra note 234. 250 M.E. Vinogradov, et al. supra note 236, at 203. 251 A. Konsulov, T. Konsulova, K. Prodanov, S. Moncheva, K. Dencheva, A. Velikov and L. Kam- burska, Bulgarian Coast Black Sea Biodiversity in Kotlyakov et al., supra note 37, at 102. 252 M. Kotlyakov & A.F. Mandych, Current trends and environmental issues of the Black Sea regional development” in Kotlyakov et al., supra note 38, at 42. 253 M.-T. Gomoiu, Some Remarks Concerning the Evaluation of Ecological Diversity of the Roma- nian Black Sea Coast, in Kotlyakov et al., supra note 39, at 79. State of the Black Sea: The Making and Unmaking of a Sea 51

Mediterranean Sea was only 3,775 kg.254 Another well-known Black Sea scientist, Laurence Mee, described the state of the Black Sea environment as catastrophic, explaining that the “strongest single symptom of the catastrophe was the virtual elimination of the Phyllophora (red algae) ecosystem of the Black Sea’s north-western shelf in a matter of some ten years.”255 Until the 1960s, the Black Sea was considered to be one of the most productive seas in the world noted for its rich biodiversity. However, during the 1970s and early 1980s, the Black Sea began to change from an oligotrophic (high in oxygen) body of water to a eutrophic body of water as a result of anthropogenic factors.256 Since the 1960s, many anthropogenic factors had an impact on the Black Sea, such as organic matter from agricultural and industrial runoff, domestic sewage, nutrients, toxic substances from industries, pesticides from agriculture, toxic materials from rice culture in the northwestern coastal lowlands, dumping, sand extraction from the shelf, bottom trawling of fish, and introduction of exotic species from ship ballast water.257 Eutrophication was exacerbated by industrialization and the development of agriculture,258 the so-called Green revolution, especially along the Danube River, which brought an influx of nutrients and other pollutants. The Danube River discharge into the Black Sea off the Romanian coast reached up to 210 km3 and accounted for approximately seventy percent of the total runoff into the Black Sea. Studies showed that nitrogen runoff had increased eight fold in the Danube and Dneiper Rivers, and two-fold in the Dniester River between the 1960s and 1980s.259 The precise amount of river run-off into the Black Sea is not known and according to scientists requires more study.260 However, according to existing scientific studies, short-sighted industrial and agricultural activities along the river shores begun during the 1970s had, by the end of the 1980s, resulted in annual river outflow into the Black Sea transporting about 4–5 km3 of waste waters (about five percent of the total river inflow), an annual average of 400 thousand tonnes of biogenic (living biological) substances, 410 thousand tonnes of petroleum products, twenty thousand tonnes of detergents, 700 tonnes of phenols, and 100 thousand tonnes petroleum products, of which 40–50 thousand tonnes come through the Danube. Another sixty

254 Zaitsev, Impact of Eutrophication on the Black Sea fauna in Fisheries and Environment Studies in the Black Sea System, supra note 34. 255 Laurence D. Mee, Can the marine and coastal environment of the Black Sea be protected, in Politics of the Black Sea, supra note 35, at 133–161, 135. 256 T.A. Shiganova, Mnemiopsis leidyi abundance in the Black Sea and its impact on the pelagic community in Özsoy & Mikaelyan, supra note 234, at 117; K. Prodanov, K. Mikhailov, G. Daskolov, C. Maxim, A. Chashchin, A. Arkhipov, V. Shlyakhov & E. Özadamar, Environmental Management of Fish Resource in the Black Sea and their rational exploitation, (FAO 1997). 257 Zaitsev & Alexandrov, supra note 249, at 25. 258 The authors also draw a correlation between the Green Revolution in world agriculture and the eutrophication of the Black Sea as well as other seas in the world during the 1970s. Id. at 26. 259 M. Kotlyakov & A.F. Mandych, Current Trends and Environmental issues of the Black Sea Regional Development, in Kotlyakov et al., supra note 38, at 42. 260 Shalva Joshvili, The Rivers of the Black Sea (European Environmental Agency Technical Report no. 71, 2002). (On-file with author). 52 Chapter II tonnes of mercury, 240 tonnes of cadmium, 4000 tonnes of lead, and 900 tonnes of chrome were also transported by the Danube River into the Black Sea. The rivers Danube, Dneiper, Dniester and South Bug contributed an additional 1200–5000 tonnes annually of various chemicals, such as the pesticide DDT (dichlorodiphenyl trichloroethane).261 Approximately one billion cubic meters of polluted water, including radionuclide from the Chernobyl disaster is dumped into the Dneiper River each year.262 A trash incinerator in the Black Sea port city of Sochi was reported to dump wastes containing pollutants into the Black Sea 3000 times the legally permitted amount.263 In comparison with the Mediterranean and Baltic seas, the Black Sea has been considerably more burdened by phosphates and nitrates.264 The 1996 Black Sea Transboundary Diagnosis (1996 BS-TDA)265 identified a total of forty-nine priority point sources of pollution for the Black Sea including a number of those determined to be the most dangerous or “hot spots” (see Table 2).

Table 2. Black Sea Hotspots Bulgaria 9 hotspots Georgia 7 hotspots Romania 6 hotspots Russian Federation 5 hotspots Turkey 10 hotspots Ukraine 10 hotspots

The increase in anthropogenic-caused eutrophication resulted in an increase in algal blooms and aquatic plants, particularly phytoplankton and dinoflagellates. Anthro- pogenic-caused eutrophication has had a major impact on both the quantity and quality of phytoplankton in the Black Sea. Prior to the 1970s algal blooms in the Black Sea were rare occurrences. However, over the last three decades there was an explosion in phytoplankton productivity. For example, where in the 1960s the area of phytoplankton blooms in the NWS of the Black Sea was about 500–700 km2 by the 1980s this amount had increased tenfold.266 And by 1988 the phytoplankton population had a reached an alarming record amount of 900 million tons.267

261 K. Prodanov, K. Mikhailov, G. Daskalov, C. Maxim, A. Chashchin, A. Arkhipov, V. Shlyakhov & E. Özdamar, Environmental Management of Fish Resources in the Black Sea and Their Rational Exploitation, (General Fisheries Council for the Mediterranean no. 68, FAO 1997), available at ftp:/ftp.fao.org/docrep/fao/006/W5020E/W5020E01.pdf. 262 Pamela B. Sak, Environmental Law in the Ukraine: from Roots to the Bud, 11 UCLA J. ENVTL. L. & POL’Y 203, 208 (1993). 263 Id. 264 Id. 265 Supra note 40. 266 Zaitsev & Alexandrov, supra note 249, at 26. 267 Id. State of the Black Sea: The Making and Unmaking of a Sea 53

Table 3. Average Biomass of Phytoplankton in the Black Sea268 1950s – 670 mg M-3 1960s – 1,030 mg M-3 1970s – 18,690 mg M-3 1980s – 30,000 mg M-3

The change in the Black Sea phytoplankton also altered the make-up of zooplankton in the Black Sea by creating more food for plant-feeding species of zooplankton. As a general rule, large species of zooplankton were replaced by smaller species. In particular, eutrophication is known to produce mass development of gelatinous plankton organisms that are made-up of 98–99 percent water.269 The largest Black Sea jellyfish, the Risshosstoma pulmo, the moon jellyfish Aurelia aurita and the Mnei- opsis leiydi are examples. The result of increased gelatinous and suspended particles is the loss of transparency of the sea, which has been the case in the Black Sea. The transparency of the Black Sea has declined from depths of up to 15–18 meters in the central northwestern shelf during the 1960s to 7–8 meters during the 1980s, and as low as one meter during bloom periods.270 The loss of transparency (turbidity) of the sea, in turn, has had an impact on the ability of certain bottom-living plants to survive in the diminished sunlight. For example, both hypoxia and eutrophication have had a negative impact on mussel biomass in the Black Sea. Mussels serve as an important natural water filter; the reduction of their population has only compounded the direct effects of anthropogenic eutrophication.271 One of the most severe impacts of eutrophication has been the dramatic reduction in phytobentos, or algal macrofloral. A victim of the nutrient-created eutrophication in the NWS has been Zernov’s Phyllophora field, the largest aggregation of red agar-bearing algae of the Phyllophora genus in the world. Between the 1950s and the 1990s, Zernov’s Phyllophora field decreased from occupying an area of 11,000 km2 to 500 km2, and from a biomass of 7–10 million tons to 300,000–500,000 tons respectively. This massive loss has depleted the Black Sea of an important source of oxygen generation through photosynthesis as well as an important bio-community for 118 invertebrates and 47 species of fish. A smaller Phyllophora field located in the east of the Karkinitsky Bay continues to exist.272 Another victim of eutrophication has been the perennial large brown algae Cystoseira barbata which has essentially disappeared from the Sea.273

268 Id. 269 Zaitsev & Mamaev, supra note 225, at 85. 270 Id., at 91. 271 Id. 272 Id., at 93. 273 Id., at 94. 54 Chapter II

Anthropogenic induced eutrophication has also created large areas of hypoxia in the Black Sea. Hypoxia is the consequence of mass mortality of large amounts of phytoplankton that end up literally sucking up the oxygen supply in the sea. The first recorded hypoxic area was in 1973 in the NWS area covering an area of over 3500 km2. Subsequently, in 1978, 1980, 1983 and 1990 other large hypoxic areas on the NWS shelf covering an area from 30,000–40,000 km2 were observed.274 Unfor- tunately, mass mortality of bottom organisms from hypoxia became a common phenomenon. According to studies, biological losses due to hypoxia on the NWS were estimated at 100–200 tons of organisms per square km of bottom.275 The total loss of organisms has been estimated at sixty million tons between the years 1973–1990 of which five million tons were fish. Hypoxic zones were recorded in NWS at depths of 8–40 meters.276 However, according to scientific reports improvements have been recorded. In the year 2000 the total area exposed to hypoxia was observed at being approximately fourteen thousand km3 (thirty-eight percent of the NWS), three times less than the area recorded in 1983 when more than fifty percent of the NWS shelf was exposed to hypoxia.277 An extensive review of the state of the Black Sea conducted between 2005–2006 produced the Black Sea Transboundary Diagnostic Analyses for 2007 (2007 Black Sea-TDA).278 The 2007 Black Sea-TDA differed from its 1996 predecessor in several important ways. First, in place of seven perceived transboundary problems the 2007 Black Sea-TDA narrowed its focus to four priority transboundary issues: (1) Eutrophication/nutrient enrichment; (2) Changes in marine living resources; (3) Chemical pollution (including oil); and (4) Biodiversity/habitat changes, including alien species introduction. Where the first 1996 Black Sea-TDA examined the root causes of the environmental degradations and the approach to be take to address them based on the “best practices” approach developed by the GEF/International Waters Programme, the 2007 Black Sea-TDA engaged in an identification and initial prioritization of transboundary problems, examined environmental impacts and socioeconomic consequences of each problem, developed a causal chain analysis (including root causes) and conducted an analysis of institutions, laws, policies and projected investments. The result was significantly more detailed analysis that went beyond science to include socio-economic and governance issues. The analysis was separated into different thematic reports prepared by different experts.279

274 T. Oğuz, V. Velikova, A. Cociasu & A. Korchenko, The State of Eutrophication in State of the Environment of the Black Sea 2001–2006/7 83, 105–106 (Temel Oğuz, ed., 2008). 275 Zaitsev &Alexandrov, supra note 249, at 27. 276 Id., at 26. 277 State of the Environment of the Black Sea Pressures and Trends 1996–2000, supra note 274, at 25. 278 2007 Black Sea-TDA, supra note 1. 279 These are the: (1) Thematic report on Habitat loss/Biodiversity; (2) Thematic report on Causal Chain Analysis; (3) Thematic report on Fisheries; (4) Thematic report on pollution loads; State of the Black Sea: The Making and Unmaking of a Sea 55

On the important issue of eutrophication, the 2007 Black Sea-TDA on the one hand reported a substantial decrease in the levels of pollution between 1996 and 2005 of the Black Sea river-bourne inorganic nitrogen and phosphate on the magnitude of a 30 percent.280 In 2007 the “dead zone” in the NWS of the Black Sea was revitalized. On the other hand, the 2007 Black Sea-TDA cautioned “this decrease in nutrient loads is overwhelmingly the result of economic decline and slump in agricultural productivity rather than due to improved regional environmental management.”281 The Black Sea-TDA further cautioned that if improvements were to be maintained in the future as economies developed in the region it was “essential that procedures and legislation” be adopted.282 If biodiversity and productivity can be restored to the status of the 1960s, the Black Sea will have accomplished what could be described as a modern-day miracle in environmental healing. More important, it will be tangible proof demonstrating the success of regional and international cooperative efforts as well as the importance of international institutional support. The Black Sea may yet be transformed from a dying sea to a sea of hope. Still, despite early indications of possible recovery, the Black Sea environmental condition remains serious.

3.2 Introduction of Alien Species One of the great calamities to visit the Black Sea has been the accidental introduction of the Mnemiopsis leidy (rainbow comb jelly fish), and other alien species. The introduction into the Black Sea of exotic or alien species is neither a recent phenomenon, nor has it always been accidental. Many species of fish, such as the anchovy, are of Mediterranean origin. The earliest recorded exotic species entering the Black Sea was the Bay barnacle Balanus improvius, which was introduced in 1844.283 Aqua- culture has also been an important reason for the introduction of alien species into the Black Sea. Thirty-four percent of exotic species were imported into the Black Sea for aquaculture purposes. Another sixty-six percent were unwittingly brought by ship ballast water. A significant twenty-five percent of exotic species entered the Black Sea in the last decade alone. However, the most devastating of these exotic species was the Mnemiopsis leidy, a ctenophore that is considered the second greatest disaster for the Black Sea ecosystem after eutrophication.284 Environmental pressures on the ecology of the Black Sea were exacerbated with the invasion of the Mnemiopsis leidy, believed to have been introduced through ship

(5) Thematic report on pollution assessment; (6) Stakeholders Analysis; (7) Socio-economic Assessment; and (8) Governance Analysis. 280 2007 Black Sea-TDA, Supra note 1 at 68. 281 Id., at 52–53. 282 Id. 283 Zaitsev & Öztürk, supra note 233, at 95–96. 284 Ahmet Kideys, Fall and Rise of the Black Sea Ecosystem, 297 Science 1482–1485 (2002). 56 Chapter II ballast water from North America in the early 1980s.285 Although not the first exotic species to penetrate into the Black Sea, the Mnemiopsis leidy has been the most notorious of these foreign invaders. By 1988 the Mnemiopsis leidy had penetrated the entire Black Sea, including the Turkish Straits and the Sea of Marmara as well as the Sea of Azov.286 Without any natural predators, the Mnemiopsis leidy essentially ate and reproduced its way through the Black Sea, attaining a formidable biomass of nearly one billion tons by the end of the 1980s.287 Feeding off the phytoplankton biomass in the Black Sea it literally starved out the Black Sea fish, especially the anchovy, which suffered a population collapse during this same period.288 However, in 1997 the accidental introduction of another exotic species known as the Beroye ovata, also a ctenophore that most fortuitously also happened to be a natural predator of the Mnemiopsis leidy caused a collapse of the Mnemiopsis leidy population.289 Ironically, deprived of the Mnemiopsis leidy as a source of food, the Beroye ovata has also virtually disappeared from the Black Sea. However, the possibility of the reintroduction of the Mnemiopsis leidy or other invasive species, continues to haunt the Black Sea, as unregulated and illegal ballast discharge continue to take place in the Black Sea. However, not all exotic species brought environmental destruction to the Black Sea. For example, the Rapana Rapana thomasiana thomasian (sea snail), which was first discovered in 1946 in the Novorossiysk Bay and believed to have come from Japan, was initially an unwanted exotic species because it devoured the rich mussel beds of the Black Sea. Once the gastronomical value of the Rapana rapana was discovered they began to be commercially exploited, bringing economic benefits. The soft-shell clam Mya discovered in the Odessa Gulf in 1966 is another example of a relatively benign exotic species introduced into the Black Sea. It has made a habitat for itself near estuaries without causing ecological consequences. The same can be said for the white-fingered mud crab, Rhithropanopeus harrisi tridentata, which was discovered in the liman of the Dnipro and South Bug rivers in 1939. It eventually spread throughout the Black Sea and is now found in coastal wetlands as well as in brackish water lagoons, estuaries and bays. As it provides an additional food source

285 The Mnemiopsis leidy was first observed in November 1982 in the Sudak Bay of the Black Sea and then in 1986 in the north-eastern waters. Shiganova, supra note 256. 286 In the autumn of 1988 the Mneiopsis leiydi had penetrated all parts of the Black Sea with an average biomass of 1 kg.m-2 and 310 ind.m-2. The amount of biomass peaked in 1990 after which a decrease began. Id., at 121–122. In August of 1988 Mneiopsis leiydi was observed in the Azov Sea for the first and in the Marmara Sea in 1989–1990 with an average biomass of 4,2 kg.m-2. Id., at 119. 287 Zaitsev & Mamaev, supra note 225, at 65. 288 Id. 289 For detailed discussion of the using the B. ovata to control the Mneiopsis leiydi, see S.P. Volovik, Use of Beroe (sic) Ovata to control Meniopsis populations in the Caspian Sea, in First International Meeting of the Caspian Environment Programme on the Inva- sions of the Caspian Sea by Comb Jelly Mnemiopsis-Problems, Perspectives, Need for Action held in Baku, Azerbaijan, 24–26 April 2001. (on-file with author) Available at http:// www.caspianenvironment.org/newsite/Caspian-MnemiopsisLeidyi.asp?doc=mnem_attach7 .htm&ttl=Attachment%207&lev3doc=mnemmenu1.htm. State of the Black Sea: The Making and Unmaking of a Sea 57 for native Black Sea bottom fish, such as the gobies, flounder and turbot, it is considered to be a useful species and not harmful.290

Table 4. List of Alien Species Introduced in the Black Sea in the 20th Century291 black-eyed hydromedusa (Blackfordia virginica) 1st observed in 1925 polychaeta (Mercierella enigmatica) 1929 white fingered mud crab (Rhithropanopeus harrisi tridentate) 1937 snail (Rapana thomasiana) 1946 soft shelled carb (Mya arenaria) 1966 blue crab (callinectes sapidus) 1967 nudibranch mollusc (Doridella obscura) 1980 bivalve (Cunearca cornea) 1982 rainbow comb jelly (Mnemiopsis leiydi) 1982 brown alga (Desmarestia) 1990

3.3 Atmospheric Input of Nutrients In addition to nutrient inputs from rivers, coastal sources and sediments, atmospheric wet and dry depositions likely is an important component of the long-term nutrient enrichment of the Black Sea that, however, remains poorly studied. Accord- ing to the State of Environment Report (2002), the estimated atmospheric nutrient, principally nitrogen, input onto the Black Sea surface is comparable to that of inputs from rivers, domestic and industrial sources.292 Principal sources come from fossil fuel combustion such as from vehicles and power generation and agricultural emissions.293 A subsequent study goes further suggests that atmospheric deposition of nutrients could be comparable to river loads, but cautions as to the unreliability of the available data.294

4. Marine Biodiversity and Fisheries in the Black Sea

4.1 Overall Biodiversity According to Zaitsev and Mamev, two prominent Black Sea scientists, the Black Sea species may be the most thoroughly studied in terms of the biodiversity of its plants and animals of all the seas.295 The authors have created an extensive table providing a chronology of the various studies that have been done by scientists of Black Sea

290 Zaitsev & Öztürk, supra note 233, at 125–26. 291 Zaitsev & Alexandrov, supra note 249, at 28. 292 State of the Black Sea Pressures and Trends (1996–2001), para. 2.5. Available at http://www .blacksea-commission.org/_publ-SOE2002-eng.asp#_Toc39914633. 293 State of the Environment, supra note 277, at 64. 294 Id., at 2. 295 Id., at 28. 58 Chapter II

Table 5. Black Sea Biological Species Fungi, algae, higher plants 1,619 Invertebrates 1,983 Fishes 168 Marine mammals 4 biodiversity beginning as far back as 1768 when two scientists from the St. Petersburg Academy of Science studied the Black Sea algae. This table shows that between 1793 and 1810 P.S. Pallas, also of the St. Petersburg Academy of Science identified 94 species of fish in the Black Sea.296 A total of 3774 biological species were identified in the Black Sea before 1996, although the biodiversity of the Black Sea has significantly declined over the past three decades. In total, the biodiversity taxon for the Black Sea includes 1,619 species of fungi, algae and higher plants; 1,983 species of invertebrates, 168 species of fish and 4 species of mammals. The Black Sea Red Data book lists a total of 160 species, of which forty-one are Black Sea fish species.297 Turkey has the highest degree of biodiversity of the Black Sea countries with 3,081 species, followed by Georgia with 3,072, Bulgaria with 2199, Romania with 1676, the Ukraine with 1,266 species, Crimea with 2331, and Russia (N. Caucasus) with 2250.298 The 1996 Black Sea-TDA listed seven areas of “perceived major problems” that included the decline in Black Sea commercial fish, the loss of habitats (notably wetlands) and shelf areas, loss or imminent loss of endangered species and the replacement of indigenous species with exotic ones.299 These specific areas are examined in more detail.

4.2 State of Black Sea Fisheries The evolution of the Black Sea has produced four different categories of fish: warm water fish (Mediterranean origin), moderately cold water fish, brackish water fish (Ponto Caspian relics) and anadromous fish (river origin fish).300 The Black Sea hosts a total of 168 species of fish of which 119 are exclusively marine, 24 anadromous or semi-anadromous and 22 are fresh water species.301 Twenty-six species were commercial fished until the 1960s. In particular, the NWS was the most important zone in the Black Sea for the majority of the fishing fauna. Fed with oxygen enriched river

296 Id., at 23–25. 297 Available at http://www.grid.unep.ch/bsein/redbook/index.htm. 298 N.L. Beroutchashvili & T.F. Urushadze, Natural Conditions and Processes as Factors Having Some Effect on the Biological Diversity of the Black Sea Region, Kotlyakov et al., supra note 19, at 22 and Table 1. 299 1996 Black Sea-TDA, supra note 40, at 3. 300 Black Sea Biological Diversity, Turkey Report 24 (Black Sea Environmental Series, 1997) Bayram Öztürk, Biological Diversity in the Black Sea: Turkey (Black Sea Environmental Series Vol. 9). 301 Id. State of the Black Sea: The Making and Unmaking of a Sea 59 water it provided an important spawning and nursery ground for commercial species such as, anchovy (Engraulis encrasicolus ponyicus), turbot (Scophthalmus maeoticus), Atlantic bonito (Sarda sarda) and Bluefish (Pomatomus saltator).302 However, with the ensuing ecological degradation caused by eutrophication, the invasion of exotic species, especially the Mnemiopsis leidy (rainbow comb jelly fish) and poor fishing practices, this number declined to only five species of commercial fish by the 1980s. The number of commercial species increased to six in the 1990s with the intentional introduction of the gray mullet Mugil soiy from the Far East. The stocking proved successful and the gray mullet has been one of the rare fish to thrive in Black Sea. The Black Sea fisheries, similar to most fisheries in the world, experienced a boom to bust period of commercial exploitation. Overall, Black Sea commercial fish stock has declined since the 1980s. For example, according to statistics provided by the FAO, Bulgaria’s capture of marine species between 1950–1960 increased from 3700 tons to 7,800 tons.303 By 1976 this amount reached a peak capture rate of 160,894 tons.304 In 1994, the Bulgarian marine fish capture plummeted to 6,585 tons and has been gradually recuperating reaching 15,008 tons in 2002 then decreasing to 10,769 tons in 2010.305 Georgia experienced a dramatic decline in marine fisheries capture from 201,355 tons in 1988 to 1,413 tons in 1999.306 In 2002 the capture rate for marine fisheries had increased slightly to 1811 tons and in 2010 increased to 30,594 tons.307 The peak marine fish production for Romania was in 1986 and 1987 with a total capture of 223,582 tons and 224,188 tons respectively.308 In 2010 the total plummeted to 2688 tons. Overall, the Romanian fish capture grew from 4,500 tons in 1950 to peak in 1986 and decrease to 2688 tons in 2010.309 Turkey has the highest fish production among the Black Sea countries.310 Over the years, Turkey’s fishing fleet in the Black Sea grew from a total of 3,132 in 1991

302 A.C. Gücü, Role of fishing in the Black Sea ecosystems, in Özsoy & Mikaelyan, supra note 234, at 149–162. 303 United Nations Food and Agriculture, Fisheries and Aquaculture Department, Capture fish statistics. Available at http://www.fao.org/figis/servlet/SQServlet?ds=Capture&k1=COUNTRY& k1v=1&k1s=27&outtype=html (On file with author). 304 Id. 305 Id. 306 FAO available at http://www.fao.org/figis/servlet/SQServlet?ds=Capture&k1=COUNTRY& k1v=1&k1s=73&outtype=html (On file with author). 307 Id. See also, Bayram Öztürk, Çetin Keskin & Semih Engin, “Some remarks on the catches of anchovy, Engraulis encrasicolus (Linnaeus, 1758), in Georgian waters by Turkish fleet between 2003 and 2009,” 17 J. Black Sea/Mediterranean Envtl, 145–158 (2011). 308 FAO available at http://www.fao.org/figis/servlet/SQServlet?ds=Capture&k1=COUNTRY& k1v=1&k1s=183&outtype=html (On file with author). 309 Id. 310 Ertuğ Düzgüneş & Naciye Erdoğan, Fisheries Management in the Black Sea Countries, 8 TURK. J. FISH. & AQUATIC SCI. 181–192 (2008). Turkey leads Black Sea fish production with 342,455 t followed by Ukraine with 63, 161 t and Russia with 24, 922 t. Id. at 181. 60 Chapter II to 7,186 in 2004.311 Of the Black Sea countries Turkey, during the period examined, was the only country whose overall marine capture had not declined.312 In 1970 the overall total marine fish capture for Turkey was 162,015 tons. In 1995, this number had increased to 573,608 tons, peaking at 632,450 tons in 2007.313 In 2010 the total capture in the Turkish Black Sea 2010 was 303,691 tons.314 According to the 2007 Black Sea-TDA the overall number of fishing vessels for Black Sea States greater than 12 meters in length increased from approximately 400 in 1992, peaking at approximately 1800 in 2002 and 1300 in 2005.315 Non-sustainable fishing practices, illegal fishing, use of destructive harvesting techniques, lack of co-operative management and eutrophication are identified as the most significant threats to Black Sea fisheries.316 While no Black Sea fish stock assessment has ever been conducted and, as a result, the degree of overexploitation has not been adequately studied, in assessing the state of commercial marine living resources, the 2007 Black Sea-TDA observed some improvement in the catches of Black Sea fish, but cautioned that this was primarily for anchovy and sprat.317 The 2007 Black Sea-TDA noted that while mullet catches have decreased since 1966 that there have been some signs of recovery for red and grey mullet in Romanian waters.318 Mackerel populations have also appeared in Georgia and some recovery of turbot stock has occurred in Bulgaria. However, turbot catches in Romania and Turkey have remained low and the Turkish spiny dogfish and whiting catches, according to the 2007 Black Sea-TDA, have “progressively dwindled.”319 More significantly, the Report noted that since the 1990s the size of fishing vessels had increased significantly, which could also account for the increase in catches. The 2007 Black Sea-TDA highlighted the need for a regional fisheries agreement.320 Aquaculture in the Black Sea has been practiced since the 1980s. Statistics indicate that the greatest increase in aquaculture was observed in Turkey, growing from negligible production in the early 1980s to a total of 77,196 tons for marine fisheries

311 Id., at Table 8, p. 10. 312 Id. 313 These figures are cumulative for all seas, however, 74 percent of this amount represents Black Sea marine fish captures. See Ali İşmen, The Whiting (Merlangius Merlangus Euxinus) in the Turkish Black Sea, in Workshop on Demersal Resources in the Black Sea and Azov 32 (Bayram Öztürk & Selma Acar, eds., 2003). 314 State Institute of Statistics, Prime Ministry, Republic of Turkey, Fisheries Statis- tics 20 (2010). 315 2007 Black Sea-TDA supra note 1, figure 3.3.1. at 39. 316 Implementation of the Strategic Action Plan for the Rehabilitation and Protection of the Black Sea (2002–2007): A report by the Commission on the Protection of the Black Sea Against Pollution, 46. 317 2007 Black Sea-TDA supra note 1, at 71. 318 Id. 319 1996 Black Sea-TDA supra note 40, at 71. 320 Id., at 3. State of the Black Sea: The Making and Unmaking of a Sea 61 in 2009.321 In contrast, aquaculture in other Black Sea countries has declined. For example, in 2009 in Ukraine, only 493 tons of marine fisheries came from aquaculture.322

4.3 Black Sea Marine Mammals Four species of cetacean are resident of the Black Sea: the common bottlenose dolphin (Tursiops truncatus), short-beaked common dolphin (Delphinus delphis), harbor porpoise (Phocoena phocoena)323 and Mediterranean monk seal (Monacus monachus). There are no whales in the Black Sea. The Black Sea cetacean population has been severely depleted as a result of habitat degradation, by-catch from large-scale drift netting, trammel324 and bottom trawling fishing, illegal hunting and poaching practices, marine pollution, and noise pollution from a congested regional shipping traffic and nutrient overload.325 During the 19th Century cetaceans were hunted for their blubber, which had commercial value as lamp oil. In more modern times cetacean oil was used for medicinal purposes, currier oil, paint, varnish, soap, engine and lubrication oil, tinned meat, sausages, fish meal, fertilizer, glue, shoe polish and cosmetics.326 During the 20th Century the cetacean population in the Black Sea was decimated with over six million dolphins estimated killed.327 Still, even in the 1950s there were one million dolphins in the Black Sea.328 Until twenty years ago, the main threat to Black Sea cetaceans was mass killing by humans. However, the USSR, Romania and Bulgaria in 1966, and later Turkey in 1983, outlawed the deliberate killing of cetaceans. Despite legal efforts to preserve the cetacean population, illegal poaching and hunting continues for dolphinaria. Between the years 1990–2001, 120 bottlenose dolphins were sold for an average of US$20,000.329 Despite the regional prohibition of killing of

321 Available at ftp://ftp.fao.org/FI/CDrom/CD_yearbook_2009/root/aquaculture/c0.pdf. Fur- thermore 70% of Turkish total fisheries production is from the Black Sea. See T.C. Başbakanlik Devlet Planlama Teşkilatin Dokuzuncu Kalkinma Plani 2007–2013 [trans: Turkish Republic Planning Organization Ninth Development Plan 2007–2013], p. 2. 322 Id. 323 The harbor porpoise is included in the national Red Data Books of Bulgaria and Ukraine, and in the IUCN Red Data Book. It is also protected by the Berne, Bonn and Washington CITES Convention (Appendix II) and ACCOBAMS. 324 A trammel is a three-layered fishing net. 325 M. Simmonds & L. Nunny, Cetacean Habitat Loss and Degradation in the Mediterranean Sea in Cetaceans of the Mediterranean and Black Sea: State of Knowledge and Conserva- tion Strategies. A Report to the Accobams Secretariat 23 (Guiseppe Notarbartolo di Sciara, ed., 2002). 326 Alexei Birkun, Cetacean killing and live capture in the Black Sea.” in: G. Notarbartolo di Sciara (Ed), Cetaceans of the Mediterranean and Black Sea: state of knowledge and conservation strategies. A report to the ACCOBAMS Secretariat, Monaco, February 2002. Section 6, p. 10. 327 Birkun, Id. 328 Black Sea Biological Diversity, Ukrainian National Report 63 (1998). 329 Saugata Bagchi, Environment: Fishing Nets Take a Toll of Black Sea Dolphins Inter Press Ser- vice English News Wire, Jun 15, 2004, at 1. 62 Chapter II dolphins, an estimated three thousand dolphins die each year in the Black Sea as a result of fishing activities, bycatch,330 illegal hunting, ballast water and intensive shipping activities. When forty-eight dead bottlenose dolphins washed up on the shore near the Romanian port of Sulina in July 2003 environmentalists blamed fishing gear and trammel nets.331 Just two months earlier in May of 2003 ten dolphins had been found dead near the same area; however this time environmentalists blamed recent military exercises.332 A number of protection measures have been taken at the international, regional and national levels. The bottle-nose dolphin, the common dolphin and harbor porpoise are listed in Annex II of CITES.333 All three are also protected under the ACCOBAMS Conservation Plan.334 All three have been listed as endangered in the IUCN Red Book. The bottlenose dolphin is listed as an endangered species in the Red Data books of Georgia, Russia, Bulgaria and Ukraine, the IUCN Red Data Book, and ACCOBAMS. The bottlenose dolphin has been afforded special protected status under Annex II of the European Union’s Habitats Directive.335 The Black Sea bottlenose dolphin has also been listed endangered in the UNEP Global Action Plan on Marine Mammals.336 Despite the challenges facing the survival of Black Sea dolphins, they continue to inhabit the Black Sea, whereas the same cannot be said for the Mediterranean monk seal (Monachus monachus). Sightings of monk seal, once a regular feature of the Black Sea and Marmara Sea were last reported in 1997.337 Hunted and killed by

330 Dolphin deaths as a result of being drowned by gill nets used for turbot fishing of the coast of Turkey has resulted in significant number of dolphin deaths. See A.M. Tonay & B. Özturk, Cetacean Bycatches in Turbot Fishery on the Western Coast of the Turkish Black Sea, International Symposium of Fisheries and Zoology, 23–26 October 2003, Istanbul. Available at http://www .cetaceanbycatch.org/Papers/tonay03.pdf. See also, R.R. Reeves, P. Berggren, E.A. Crespo, N. Gales, Simon P. Northridge, G. Narbartolo di Sciara, W.F. Perrin, A.J. Read, E. Rogan, B.D. Smith & K. Van Waerebeek, Global Priorities for Reduction of Cetacean Bycatch (WWF Report, 2005), available at http://www.ceteaceanbycatch.org. 331 Bagchi, supra note 329. 332 SOS for Dolphins, Black Sea Shared Regional Environmental NGO Newsletter for the Black Sea, Issue 37, Jul.–Aug. 2003 (Black Sea NGO Network). At http://www.bsnn.org/news letter.html (On-file with author). 333 The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) 12 ILM. 1085 (1973), adopted at Washington, D.C. on March 3, 1973; as amended in Berne, Switzer- land, November 2–6, 1976, 16 ILM. 390 (1977) and in Bonn, Germany, 22 June 1979, 23 ILM. 1192; (1984) (Collectively referred to as the CITES, Berne, Bonn and Washington CITES Convention. 334 Res. 3.11, Conservation Plan for the Black Sea cetaceans, 3 Mar. 2010, available at http:// www.accobams.org/index.php?option=com_docman&task=search_result&Itemid=50 (On file with author). 335 Council Directive 92/43/EEC of 21 May 1992, O.J. (L 206) 7. 336 UNEP Regional Seas Report and Studies No. 55 Marine mammals global plan of action (1985), available at http://iwlearn.net/publications/regional-seas-reports/unep-regional-seas- reports-and-studies-no-55 (On file with author). 337 During the years 1988, 1993, 1995 and 1997 a group of Turkish conservationists conducted a series of surveys based upon interviews of 150 local people and fishermen along the Turkish Black Sea from Akçakoca to Trabzon, covering nearly 800 km, beginning in. The results were bleak as State of the Black Sea: The Making and Unmaking of a Sea 63 fishermen who saw the seal as a competitor for fish resources in the Black Sea, the Mediterranean monk seal can only be found now in the eastern Mediterranean and the northeast Atlantic off the coast of northwest Africa. It is now listed as a critically endangered species by the IUCN Red List338 and is listed as a CITES endangered species with an estimated total 300–500 population worldwide.339

5. Black Sea Habitats and Wetlands

5.1 Black Sea Marine Habitat Destruction The NWS of the Black Sea once was home to a vast field of sea grasses, rich in mollusks and oysters, bottom crustaceans, crabs, phyoplankton and zooplankton. At the same time this field provided habitat and feeding ground for many bottom and pelagic fish. Other fish stock in the NWS included flat fishes, gobies, thornback, stingray, whiting, the valuable sturgeon, bonito, Black Sea shad, and grey mullet. In addition to the negative effects of eutrophication, the practice of bottom trawling compounded the devastation of this once ichtyfauna rich zone. Trawling not only depleted the sea of fish stock by direct harvesting in massive quantities, but it also created intensified silting of the bottom floor.340 This intensified silting had a negative effect on benthic communities.341 In the case of the Black Sea the consequences were dramatic. Over a period of ten years the degree of silting of the Black Sea bottom increased from 2–3 cm to 40–50 cm. In turn, the taxonomical diversity of silted habitats in the NWS of the Black Sea decreased from thirty-eight species of macrozoobenthos to 11 and the average density of these organisms from 245 specimens to ninety-nine specimens per m2. The total loss of macrozoobenthos on 3,300 km2 of silted bottom reached 800,000 tons mostly made up of blue mussel.342

they indicated that within a period of five years the majority of fishermen had only sighted one monk seal. In 1997 the same group scoured all the caves along the coast and failed to find evidence of any Mediterranean monk seal. In 2001 again no sighting had been reported of the seal. Cem Orkun Kıraç, Witnessing the Monk’s Seal Extinction in the Black Sea, The Monachus Guardian, Vol 4. Nov. 2001, available at http://www.monachus-guardian.org/library/mguard08.pdf; See also Bayram Özturk, Black Sea Biological Diversity: Turkey, Supra note 300, at 36–39. 338 IUCN Red List of Threatened Species. Version 2012.1. Available at http://www.iucnredlist .org/details/13653/0. 339 The Monachus monachus was listed in Appendix I of CITES on 1 July 1975. UNEP-WCMC Spe- cies Database: CITES-Listed Species. Available at http://www.cites.org/eng/resources/species.html. 340 The authors explain that the case of silting from bottom trawling may be related to the suspension of movement of fine sediments during trawling. See T. Konsulova, V. Tasev, V. Todorova and A. Konsulova, The effect of bottom trawling on the mussel beds along the Bulgarian Black Sea coast, in Oceanography of Eastern Mediterranean and Black Sea, 888–896, 890 (A. Yilmaz ed., 2003); Zaitsev, supra note 34, at 73. 341 T. Konsulova, et al., V. Tasev, V. Todorova & A. Konsulova, The effect of bottom trawling on the mussel beds along the Bulgarian Black Sea coast, Id. 342 Zaitsev, supra note 34. 64 Chapter II

5.2 RAMSAR Wetlands in the Black Sea The Black Sea, as a catchment basin for multiple rivers, supports an extensive wetland ecosystem. The Black Sea basin also lies within an important migratory route for birds traveling from the Arctic to South Africa. The coastal areas and wetlands of the Black Sea provide important nesting/wintering/roosting habitats for a variety of migratory waterfowl and the basin offers refuge for 25 million migrating waterfowl every year.343 The most significant habitats are situated in the northwestern coastal area of Romania (Danube Delta), Ukraine and the Russian Federation where approximately 75 percent of the Black Sea birds are found, of which one third inhabit the Danube Delta.344 The Black Sea wetlands are dynamic and highly productive.345 However, in 1993 the world was warned by a group of international wetland experts who issued a Dec- laration in which they had unanimously concluded that there had been a “massive loss and degradation” of the Black Sea wetlands with “disastrous economic, social and ecological consequences.”346 At the time that the Black Sea Wetland Decla- ration was adopted there was not a complete inventory of existing wetlands and certainly no action plan in place to protect and preserve them. The 1996 Black Sea- SAP specifically required that Black Sea coastal States designate new conservation areas, particularly for wetlands.347 Since the adoption of the 1993 Black Sea Wetland Declaration important advancements have been made in designating new wetlands to be conserved along the Black Sea coast. For example, Ukraine increased its number of RAMSAR sites from 16 in 1998 to 33 by 2004. The number of Ramsar sites in Romania increased considerably from two and a total area of 664,586 hectares in 2005 to 12 sites and a total of 923,597 hectares. In 2012 there were a total of 106 Black Sea coastal wetlands of international importance, compared to thirty-five in 2005, designated as RAMSAR sites totaling 12, 241, 774 (in 2005 1, 953, 576) hectares (see Table 7).

343 2007 Black Sea-TDA, supra note 1, at 35–36. 344 Id. 345 Conservation of Black Sea Wetlands a Review and Preliminary Action Plan (Inter- national Waterfowl and Wetlands Research Bureau, 1994). 346 Black Sea Wetlands Declaration, 22 Oct. 1993. Id. 347 Supra note 51. Paragraph 64 provides: “In marine and coastal areas, and in particular in wetlands, new conservation areas shall be designated and the protection of existing conservation areas enhanced. In drafting their National Biological Diversity Strategies, Black Sea states shall take into consideration the integrity of the Black Sea system, by, for example, designating conservation areas which are of regional significance.” State of the Black Sea: The Making and Unmaking of a Sea 65

Source: Wetlands International. Map data based prepared by Wilson, A.M. and Moser, M.E. 1994. Map 1. Black Sea Wetlands in 1996

Table 6. Ramsar Convention Status for the Black Sea Coastal States348 Country Entry into force Number of RAMSAR Total area Wetlands of site Bulgaria 24.01.76 11 35,381 hectares Georgia 07.06.97 2 34,480 hectares Romania 21.09.91 12 923,597 hectares Russian 11.02.77 35 10,323,767 hectares Federation Turkey 13.11.94 13 179,898 hectares Ukraine 01.12.91 33 744,651

5.3 Ecosystem Value of the Black Sea The 2007 Black Sea-TDA included an assessment of the use and non-use total economic value (TEV) of Black Sea.349 The Report underlined the importance of the Black Sea as a European resource with a watershed accounting for more than half the area of the European continent and possessing a productivity rate several times higher than the neighboring Mediterranean Sea.350 The value of the Black Sea as a resource includes direct uses from marine resources such as fisheries and shellfish, recreational uses and collection of commercially valuable marine resources. But the Black Sea also provides significant TEV from indirect uses because the Black Sea ecosystem can absorb nutrients and other types of pollution and provide habitats for marine life. The Report noted the lack of studies done in assessing the ecosystem service TEV of the Black Sea, with the exception of a study on valuation of Black Sea wetlands that was completed in 1996. This study placed a total value between US$314 million to 514 million based on “fish, reed, harvesting, grazing and nutrient

348 The number of Ramsar sites and total area as of 2012. See http://www.ramsar.org/pdf/ sitelist. Includes non-Black Sea coastal wetlands. 349 Douglas Knowler, Socio-economic pressures and impacts, in State of the Environment of the Black Sea, (2001–2006/7), supra note 61, at 401–416. 350 Id., at 401. 66 Chapter II retention values.”351 However, no studies have been conducted on the aggregate direct, non-direct and non-use TEV of coastal areas and living marine resources of the Black Sea, which the author estimates could be tens of millions of dollars per year.352 The most studied economic valuation loss for the Black Sea has been in relation to fisheries, especially as a result of the collapse that occurred during the 1980s as a consequence of the introduction of the Mnemiopsis leidy. According to an in-depth study on economic valuation on the decline of Black Sea fisheries, the total annual harvest value of the Black Sea staple anchovy declined by 98 percent from US$17 million per year to US$300 thousand.353 While some recovery of Black Sea fish stock has occurred, it remains significantly below the high harvest levels recorded in 1988. The significant declined of fish stock has had an impact on the economic livelihood of populations dependent on fisheries for income.

6. Climate Change

In its Fourth Assessment of Climate Change published in 2007 the United Nations Intergovernmental Panel on Climate Change (IPCC) stated that the warming of the earth’s climate was “unequivocal.”354 In addition, the Fourth Assessment Report reported a rise in sea levels consistent with the increase in the level of global warming.355 In general, the impacts of climate change on the marine environment include ocean acidification resulting from an increase in CO2 absorption by the sea, changes in marine ecosystems that in turn impacts habitat and spawning areas vital for marine life, rising sea levels, changes in weather patterns that bring increased storms and surges and coastal erosion and damage from flooding. The Report included the Black Sea as one of the seas to be adversely impacted by climate change.356 Scientific studies conducted for the Black Sea indicate that there has been an increase in surface sea temperatures during the past twenty years357 and an increase in sea level that is higher than the global average, including that for the Mediter-

351 Id. at 403. 352 Id. 353 Id., at 408. The study was based on two periods: the pre-Mneimiopsis Leiydi years (1971–86) and post- pre- Mnemiopsis leidy years (1987–93). 354 Intergovernmental Panel on Climate Change, Climate Change 2007: Synthesis Report (2008), available at http://www.ipcc.ch/pdf/assessmentreport/ar4/syr/ar4_syr.pdf [hereinafter IPCC Synthesis Report]. 355 Id. 356 Id., at 551. 357 The increase in temperature in the Black Sea was recorded for the past twenty-year period, corresponding to the change in environmental conditions. See G.I. Shapiro, D.L. Aleynik & L.D. Mee, Long term trends in the sea surface temperature of the Black Sea, 6 Ocean Sci. 491–501 (2010); 2007 Black Sea TDA, supra note 1 at Sec. II.6.9., available at http://www.blacksea-commission .org/_publ-BSDiagnosticReport2010-Section2.asp; Black Sea Commission, Black Sea Biodiver- sity Outlook, 26–32 (2010). State of the Black Sea: The Making and Unmaking of a Sea 67 ranean Sea.358 In regard to the Black Sea the IPCC Fourth Assessment Report noted that as a result of sea-level rise there would be greater risk of damage to the coastal area as a result of climate related storm surges and tsunamis.359 Such an increase in sea-level rise can have significant negative impacts on biodiversity, ecosystems, spawning grounds and habitats, salinity levels and pollution levels.360 The continued increase in the temperature in the Black Sea also poses a risk to Black Sea fish stocks. One important indicator of global warming in the Black Sea is what is referred to as the “Mediterranization“ of the Black Sea.361 The increase in water temperature creates favorable conditions for the entry of Mediterranean species through the Turkish Straits into the Black Sea, which in turn impacts Black Sea species.362 Furthermore, higher seawater temperatures also increase the risk for the introduction of alien species. As stated by one report: “[c]hanges in sea level, sea water pH and the extent of oxygen deficiency, together with other factors, can create negative synergistic effects to which Black Sea ecosystems may have little resistance.”363 However, further studies are needed to assess acidification in the Black Sea.364 For the Black Sea the main hazards and vulnerabilities of climate change on the marine and coastal areas include coastal flooding and coastal erosion damaging coastal infrastructures.365 Another potential impact of climate change in the Black Sea is related to the hydrological changes in fresh-water run offs from major rivers, in particular the Dan- ube, which can have negative impacts on the existing ecosystems and biodiversity. According to experts future sea-level rise resulting from global warming will be influenced by changes in river run-off rather than by changes in global mean sea level.366 At present, however, no projections have been made for assessing the future impacts of climate change in the Black Sea.367 The 1996 Black Sea-TDA did not address the potential impacts of climate change on the Black Sea. The 2007 Black

358 Tübitak, Towards Integrated Marine Research Strategy and Programmes Project (SEAS- ERA), Black Sea Strategic Research Agenda, Discussion paper (2012). 359 IPCC Synthesis Report, supra note 354, at 551. 360 Id., at 353. 361 Tubitak, Towards Integrated Marine Research Strategy and Programmes, supra note 358, at 24. 362 2007 Black Sea – TDA, supra note 1, at Sec. II.6.9., available at http://www.blacksea-commis sion.org/_publ-BSDiagnosticReport2010-Section2.asp. 363 http://cca.eionet.europa.eu/docs/TP_1-2011 p. 9. 364 Fréderic Briand Ed, Impacts of Acidification on Biological, Chemical and Physi- cal, Systems in the Mediterranean and Black Seas. N° 36 in CIESM Workshop Monographs (2008). 365 See also, World Bank, Adapting to Climate Change in Europe and Central Asia 47 (2009). 366 Emiliano Ramieri, Andrew Hartley, Andrea Barbanti, Filipe Duarte Santos, Ana Gomes, Mikael Hilden, Pasi Laihonen, Natasha Marinova, Monia Santini, Methods for Assessing Coastal Vulnerability to Climate Change 68 (ETC CCA Technical Paper 1/2011). Available at http://cca.eionet.europa.eu/docs/TP_1-2011. 367 Black Sea Commission Permanent Secretariat, Black Sea Biodiversity Outlook 30 (2010). 68 Chapter II

Table 7. Black Sea States Ratification of Climate Change Instruments UNFCCC Kyoto Protocol Bulgaria 12 May 1995 15 Aug 2002 Georgia 29 Jul 1994 a 16 Jun 1999 a Romania 8 Jun 1994 19 Mar 2001 Russia Fed. 28 Dec 1994 18 November 2004 Turkey 24 Feb 2004 a 28 May 2009 a Ukraine 13 May 1997 12 Apr 2004

Sea-TDA for the first time included information on climate change for the Black Sea368 and in 2008 the Black Sea Commission organized a scientific conference on climate change in the Black Sea.369 Climate change is a global problem that is being addressed at the global level under the 1992 United Nations Framework Convention on Climate Change (UNFCCC)370 and the Kyoto Protocol.371 All six Black Sea States are Parties to both instruments. (see Table 8). A key issue for the Black Sea States will be to prepare measures at both national and regional levels to adapt to the adverse impacts of climate change, such as increased flooding of the coast and resulting coastal erosion, and economic changes that are likely to result with possible decrease in fish stocks.

7. The Sea of Azov

7.1 Background The Sea of Azov is a sea within a sea. Separate yet indelibly linked to the Black Sea, the Sea of Azov shares many of the same characteristics and pressures of the Black Sea. As an autonomous marine ecosystem it deserves individual attention. The Sea of Azov is a shallow inland sea on the southern shores of the Ukraine, connected to the Black Sea by the narrow Kerch Strait. It is in many ways, a micro- cosm of the Black Sea. Like the Black Sea it is a brackish-water sea with varying degrees of salinity fed by rivers. The two major rivers that flow into the Azov Sea are the Don River (422 000 km2 basin area) and Kuban River (57 900 km2 basin area), as well as twenty small rivers. The total area of the Sea of Azov is 37, 555 km2. It is a shallow sea with an average depth of only eight meters and a maximum depth of no more than 16 meters. Its total coastline measures 825 km in length. The sea is frozen four months out of each year.

368 Supra note 1. 369 2nd Biannual Scientific Conference Climate Change in the Black Sea – Hypothesis, Observa- tions, Trends (6–9 Oct. 2008), Available at http://www.blacksea-commission.org/_bs-hot.asp. 370 Adopted 9 May 1992, 1771 U.N.T.S. 107, (entry into force 21 Mar. 1994). 371 Adopted 11 Dec. 1997, 2302 U.N.T.S. 148, entry into force (16 Feb. 2005). State of the Black Sea: The Making and Unmaking of a Sea 69

7.2 State of Biodiversity and Habitats Like the Black Sea the Sea of Azov was once renowned for its rich marine life and abundance of fisheries: 100 kg of fish were caught for each hectare of sea area.372 The rich productivity had been attributed to the shallow waters, rich supply of river water and nutrients, and low salinity. The Azov Sea was the most productive of all seas among the world oceans.373 Where once annual fish catches totaled over 300,000 tons during the 1930s, by the 1980s this amount had plunged to 8,000– 35,000 tons.374 The Sea of Azov has suffered the same environmental fate as the Black Sea— significant loss of biodiversity, reduction in fish stocks, habitat loss, and coastal erosion—caused by lack of adequate wastewater treatment, over-irrigation, and pollution caused by pesticides chemicals, heavy metals hydraulic works, dredging, development of agriculture, navigation, and highway construction. In 1952 the construction of the Tsymlyansk reservoir in the lower Don River had a significant impact on the annual regime of water flow into the Sea, holding back fifty percent of the flow.375 This has prevented the natural flooding of the delta that had served as an important spawning ground for anadromous fish. After the construction of the dam, flooding was reduced from 49 days to 11 days, and from an area of 95,000 hectares to 27,000.376 The urban development of the coast (highways, housing etc.) has reduced the floodplain of the area from the Taganarog Bay to the mouth of the Severski Denets by over forty percent.377 The change of water flow has also had a profound impact on the level of salinity of the Sea, which has in turn affected the nature of the flora and fauna.378 River input brings an annual input of approximately 653,000 tons of suspended solids, eight tons of organic matter, 1900 tons of nitrogen and 1200 tons of phosphorous.379 There are 540 animal species in the Sea of Azov. These include shellfish (188), fish (115), and clams (64).380 Before the construction of the dams there were 156 species of zooplankton. The Sea of Azov has also suffered from intruders from the Black Sea, including the jellyfish Aurelia aurita and later the M. Leidy. These intruders have diminished the plankton abundance in the Sea.

372 In comparative terms this amounted to a difference greater by a factor of 100 from that of the Caspian Sea. S.P. Volovik, V.G. Dubina & A.D. Semenov, Hydrobiology and Dynamics of Fisheries in the Azov Sea in Fisheries and Environment Studies in the Black Sea System 1 (Studies and Reviews General Fisheries Council for the Mediterranean, FAO, 1993). 373 Id. 374 Id. 375 Id., at 7. 376 Id. 377 Id. 378 Id., at 11. 379 Biodiversity Conservation of Ukraine, Second National Report 95 (Ministry of the Environment and Natural Resources of Ukraine, 2003). 380 Id., at 29. 70 Chapter II

There are 114 species of fish in the Sea of Azov and the river mouths. Another eighteen species were purposefully introduced as commercial fish. The fish population includes the Ponto-Caspian relics, Atlantic-Mediterranean immigrants and freshwater fish. However, with the increase in salinity, species of fish never recorded before have appeared, increasing the number of species to 145–150.381 Only a small portion of these species has commercial value. Of those the most important, either in terms of mass or value, are sturgeon, anchovy, goby, bream, pike-perch, herring, flounder, mullet, roach and kilka. Between 1930 and 1990 over 10 million tons of fish were caught in the Sea of Azov.382 By the 1990s, however, total catches for all fish dropped to 13,000 tons and, with only 5,000 tons of anadromous and migratory fish.383 Pikeperch, the most widespread fish in the Sea of Azov, dropped from total catches of 70,000 tons before dam construction to 900 tons during the 1970s. Kilka is the most numerous fish in the sea. Its biomass has fluctuated throughout the years faring better in some years of others. However, the invasion of the Mnemiopsis leidy did reverse the increase in biomass that had been observed during the early 1980s. The sturgeon is the most valuable fish and the Azov is home to three species of sturgeon: the Russian sturgeon, stellate sturgeon and the great sturgeon. The highest catches were made during the 1930s of 7,300 tons dropping to a low in 1960s of 500 tons, and then in the 1980s to just 200 tons.384 Most commercial sturgeon is now farmed. Added to the many anthropogenic pressures already threatening the ecological health of the Sea of Azov, again similar to the Black Sea, is the recent exploration for off-shore oil.

8. Discussion

With almost ninety percent of its water volume by nature unable to sustain marine life the Black Sea was destined to be an anoxic, hydrogen sulfide saturated sea. None- theless, for thousands of years, marine life and biodiversity flourished within a very thin surface layer of water. The multiple rivers that flowed into the sea created one of the nature’s most productive seas and coastal areas, rich in marine biodiversity and important wetlands, estuaries and deltas providing a habitat for birds and other non-marine species. Fish of varied species and origins swam its waters, from the ancient sturgeons of the ponto caspian era to the more recent Mediterranean immigrants. And during these millennia humans co-existed with the sea until the drive for rapid development overcame the Sea’s ability to withstand the human pressures placed on it. During a period of less than three decades between the 1970s and 1990s

381 Id., at 35. 382 This calculation excludes the period between 1942–43. Id., at 35. 383 Id. 384 Id., at 38. State of the Black Sea: The Making and Unmaking of a Sea 71 the Black Sea marine environment spiraled into a decline that nearly destroyed it. The fish stocks collapsed, the cetacean population nearly disappeared, eutrophication from human activities practically strangled the sea and all marine life, and coastal development threatened vital wetlands. Scientific studies have shown that the dominant source of pollution was brought from the multiple rivers flowing into the Black Sea and in particular the Danube River. Where once these rivers brought life into the Black Sea through the oxygen they carried, by the late 1960s and 1970s these same rivers began to bring pollution and nutrients that brought the seeds of potential death, depriving the sea of needed oxygen. The aggressive push for development through rapid industrialization and expanded agricultural activities particularly by the countries along the Danube River polluted the river water whose final destination was the Black Sea. Eutrophication caused by this polluted river water had a devastating effect on marine life. One of the most serious consequences of eutrophication was to threaten one of the world’s largest phyllophora fields and an important habitat for many fish. Eutrophication caused new areas of hypoxia decreasing even more the amount of oxygen in the thin surface area. The clear import of this symbiotic link between the Danube River and the Black Sea would mean that any sustainable recovery plan to restore the Black Sea would have to include the Danube Basin. In addition to eutrophication, non-sustainable fishing practices, including an uncontrolled expansion of the Black Sea fishing fleet equipped with large trawlers and wide drift nets, resulted in the near collapse of Black Sea commercial fish stock as the total number of commercial fish species dropped from twenty-six to a mere six. The remaining six species were further threatened with the introduction of alien species, notably the Mneiopsis leiydi believed to have been introduced during the 1980s. Pollution and unregulated fishing practices had equally deleterious effects on the Black Sea marine mammal population with the complete disappearance of the monk seal and the dolphin. By 1990 the Black Sea was on the verge of complete collapse. The first transboundary diagnostic analysis completed in 1996 (Black Sea-TDA) painted a grim future for the Black Sea.385 The challenge facing the Black Sea countries and international community could not be overestimated. The scientific data made it quite clear that immediate action needed to be taken to prevent continued eutrophication, non-sustainable fishing practices, the introduction of alien species, the loss of biodiversity and of wetlands, with little time to lose. Addressing the multiple challenges for restoring the devastated marine environment would require a combination of political and economic commitment from the Black Sea coastal States and of the Danube River basin. And ultimately it would require the

385 supra note 40. 72 Chapter II construction of a system of sustainable environmental governance to assure a lasting recovery once recovery had been achieved. Approximately ten years following the completion of the 1996 Black Sea-TDA the second Black Sea-TDA was completed in 2007.386 While there were some differences in the methodology employed, the results were cautiously encouraging. Improve- ments were observed in the levels of eutrophication, especially from the Danube River Basin, as well as some improvement in fish stock and overall biodiversity. However, the improvements in fish stock were limited to only sprat and anchovy. Furthermore, while signs of life were observed in the area once labeled as the “dead zone” the continued influx of alien species continue to pose a significant threat to Black Sea biological diversity. Moreover, coastal habitats and wetlands continued to be in need of protection. Climate change was addressed for the first time in the 2007 Black Sea-TDA.387 The Fourth IPCC Report together with other scientific studies indicated that the Black Sea was vulnerable to the adverse impacts of climate change.388 Consequently the Black Sea States will need to prepare by adopting adaptation measures at both the national and regional levels. This will require additional scientific studies to fill the existing gap on projections of future impacts of climate change on the Black Sea marine and coastal as well as develop coordinated actions. As a preliminary step the Black Sea Commission could create a regional climate change advisory panel with an interdisciplinary composition. Climate change will impact the marine and coastal environment which in turn will have effects on economic and sociological related aspects. An interdisciplinary advisory panel that included a wide range of experts and stakeholders such as scientists, sociologists, economists, legal experts, representatives of business interests and NGOs would provide an important knowledge basis and forum for exchange of information. It will also be important for the Black Sea countries to develop strategies for responding to the future risks of climate change. The 2007 Black Sea-TDA also underlined the need for greater legal protection in all cases, including the need for more legislation regulating pollutants causing eutrophication, the need for a regional fisheries agreement, and the need for greater legal protection of the Black Sea ecosystem. While much effort has been expended on assessing the scientific aspects of the Black Sea ecosystem, the same effort has not been expended in tying the science to the legal and governance framework. Clearly there is an immediate need to fill this important gap. The most glaring example of this gap is reflected in the lack of a regional fisheries convention. Without question, the legal dimension of the Black Sea Regional Programme remains as the weak link between science and action.

386 Supra note 1. 387 Id. 388 Supra note 359. State of the Black Sea: The Making and Unmaking of a Sea 73

The Black Sea Commission could systematically address existing and future legal issues by establishing a Black Sea Legal Advisory Group in addition to the seven Black Sea Commission Advisory Groups.389 There has been a great deal of emphasis on scientific research in the Black Sea in contrast to the little work undertaken to improve the regional legal, policy and governance framework for the Black Sea. The principal function of the Legal Advisory Group would be to advise the Black Sea Commission on its international and regional obligations as well as provide guidance on how to fulfill these obligations. The members of the Legal Advisory Group ideally should include both non-governmental legal experts, such as from universities and governmental legal experts. The combination will provide the Black Sea Com- mission with the benefit of the independent perspective of the non-governmental legal experts and the know-how of the governmental legal expert of governmental operations that could expedite the implementation of recommendations within the governmental structure.

389 See Table 10.

Chapter III

The Regional Legal Framework for the Protection and Preservation of the Black Sea Marine Environment

1. Introduction

One of the most important outcomes of the dissolution of the former USSR was the heightened international attention directed towards the serious environmental decline in the Black Sea. No longer hindered by old cold war politics, protection of one of the most unique seas in the world became a rallying call for a wide array of interests and groups.390 However, the urgency to undertake the necessary measures to institute a regional regime for the protection and preservation of the Black Sea resulted in the hasty adoption of the Convention for the Protection of the Black Sea Against Pollution and three implementing protocols,391 before the first transboundary diagnostic study of the Black Sea marine environment had been completed in 1996,392 which would have been the usual procedure for the UNEP Regional Seas Programme.393 The Convention and its protocols were also developed before the conclusion of the historical and influential 1992 Rio Conference and the adoption of the Rio Declaration and Agenda 21.394 This meant that the foundation for the regional regime in the Black Sea was from the outset out-dated. Further complicat- ing the development of an effective regime for regional co-operation for protection and preservation of the Black Sea environment was the need for multiple rings of co-operation with other Black Sea institutions and neighboring regions. The regional approach to protection of the marine environment was institutionalized by UNEP with the UNEP Regional Seas Programme in 1974 with some eighteen

390 The Black Sea in Crisis, An Encounter of Beliefs: A Single Objective, (Sarah Hobson & Laurence David Mee, eds., 1997). 391 Convention for the Protection of the Black Sea Against Pollution (and Protocols), supra note 32. 392 Supra note 40. 393 In its website the UNEP Regioanal Seas Programme explains that: “The Regional Seas programmes have several common elements. The process of establishing a regional programme usually begins with the development of an Action Plan outlining the strategy and substance of a regionally coordinated programme, aimed at the protection of the common body of water . . .” See http://www.unep.org/regionalseas/programmes/actionplans/default.asp. 394 The United Nations Conference on Environment and Development (UNCED) was held in Rio de Janeiro, Brazil, on 3–14 June 1992. See Report of the UN Conference on Environment and Development, UN Doc. A/CONF.151/26/Rev.1.; Agenda 21 UN Doc. A/CONF.156/26, reprinted in 31 ILM 874 (1992).

Nilufer Oral, Regional Co-operation and Protection of the Marine Environment Under International Law, pp. 75–125. ©2013 Koninklijke Brill NV, The Netherlands. ISBN 978-90-04-25085-7. 76 Chapter III programmes established since that time. In order to assess the existing Black Sea regional governance structure for protection of the marine environment a comparison with the Mediterranean Sea, Baltic Sea and the North-East Atlantic will show where gaps exist and provide guidance assessing what measures should be adopted by the Black Sea States to create an effective, robust regime of co-operation for protection of the Black Sea in accordance with the principles and standards sustainable oceans governance.

2. Co-operation in the Protection of the Marine Environment under International Law

2.1 The 1982 LOSC and Protection of the Marine Environment The principle of co-operation among states for the protection and preservation of the environment is one of the important developments of modern international environmental law and the law of the sea.395 The 1982 LOSC,396 recognized as the Constitution for the oceans, codified the responsibility of coastal States to co-operate with one another in the protection and preservation of the marine environment, as well as in other activities related to the preservation of the marine living resources. Part IX of the 1982 LOSC expressly defined the general contours of co-operation for coastal States bordering enclosed and semi-enclosed sea, such as the Black Sea. The importance of the principle of inter-state co-operation for the protection and preservation of the environment, which is a shared responsibility among equal sovereign states, especially within the limited marine space of enclosed or semi-enclosed seas, is all the more remarkable when placed within the historical context of the development of international law. In outlining the historic importance of the 1982 LOSC Scheiber and Caron remarked: “General concepts such as ‘duties to co-operate’ have been incorporated in explicit ways into important areas of oceans law to an extent almost impossible to have imagined when the U.N. opened its first formal meeting on law of the sea . . .”397 The long journey from the founding principle of open seas and the freedom of the seas as developed in the watershed treatise, Mare Liberum398 written by Hugo Grotius in the seventeenth century, to the historical speech of Arvid Pardo to the United Nations General Assembly on the “common heritage of mankind”399 slowly

395 See David Freestone, Principles of Modern Oceans Governance, 28 INT’L J. MAR. & COASTAL L. 385 (2008). 396 supra note 19. 397 Harry N. Scheiber & David D. Caron, eds., Bringing New Law to Oceans Waters 3 (2004). 398 Hugo Grotius Mare Liberum, 1609–2009: Original Latin Text and English Transla- tion (Transl. Robert Feensrea, 2009). 399 Kemal BaŞlar, The Concept of the Common Heritage of Mankind in Interna- tional Law. Developments in International Law (1997); Alexandre Kiss & Dinah Shelton, The Regional Legal Framework for the Protection and Preservation 77 transformed the concept of marine space from an infinite resource open to exploitation by all states freely, to that of a finite resource implicating a common duty to protect the resource for future generations. The 1982 LOSC marked an historic development for international law of the sea and protection of the marine environment. Beyond simply codifying existing norms of international law of the sea the 1982 LOSC established a new and extensive framework for oceans and marine governance at the global level. The earlier 1958 Geneva Conventions400 were more limited in their scope, simply codifying what had been recognized as customary international law,401 whereas the 1982 LOSC created new law. Part XII of the 1982 LOSC marked the first comprehensive regime for the protection and preservation of the marine environment.402 Articles 192 and 194 established a duty for all States to protect and preserve the marine environment.403 Previously, international law of the seas was made up of an assortment of international instruments to which States were not under an obligation to become a party.404 There was no overarching duty to protect the marine environment provided by a single treaty or even collectively. More importantly, the 1982 LOSC went beyond simply creating a general duty to protect and preserve the marine environment. It also established new legal concepts, such as a regime for coastal state jurisdiction over marine resources in the exclusive economic zone, which were not part of the 1958 Geneva Conventions. In addition, the 1982 LOSC delineated in detail the respective rights and duties of the States in their capacity as coastal States, flag States or port States for navigational rights, resource management and control over polluting activities. Among the new areas of competence, port state control was one of the important innovations introduced by the 1982 LOSC.405 Moreover, the treaty introduced for the first time the concept of the regional sea and regional co-operation for semi-enclosed and enclosed seas.

International Environmnetal Law, supra note 53, at 35–36; Patricia W. Birnie & Alan E. Boyle, International Law and the Environment, 2nd ed. 143–44 (2002). 400 1958 Geneva Conventions on the Territorial Sea and the Contiguous Zone, supra note 188; Convention on the High Seas, supra note 188; Convention on the Continental Shelf, supra note 188; Convention on Fishing and Conservation of the Living Resources of the High Seas, supra note 188. 401 Alan E. Boyle, Marine Pollution under the Law of the Sea, 85 AM. J. INT’L L. 347 (1985). 402 Moira L. McConnell & Edgar Gold, The Modern Law of the Sea: Framework for the Protection and Preservation of the Marine Environment? 23 CASE W. RESERVE J. INT’L L. 83 (1991). 403 Article 192 of the 1982 LOSC established the general that “[a]ll States have the duty to preserve and protect the marine environment.” McConnell & Gold, Id.; Jonathan. E. Charney, Impact of the Law of the Sea Convention on the Marine Environment, GEO. INT’L ENVTL. L. REV. 732 (1995); Edward L. Miles, Approaches of UNCLOS III & Agenda 21 – A Synthesis, in Sustainable Development and Preservation of the Oceans: The Challenges of Unclos and Agenda 21 – Proceedings of the Law of the Sea Institute Twenty-Nine Annual Conference 16–42 (Mochtar Kusuma-Atmadja, Thomas A. Mensah and Bernard H. Oxman, eds., 1997); Boyle, Marine Pollution Under the Law of the Sea, supra note 401. 404 Boyle, Id. 405 Tatjana Keselj, Port State Jurisdiction in Respect of Pollution from Ships: The 1982 United Nations Convention on the Law of the Sea and the Memoranda of Understanding, 30 OCEAN DEV. & INT’L L. (1999) 127–160; Ho-Sam Bang, Is Port State Control an Effective Means to Combat 78 Chapter III

2.2 Regional Seas Model for Co-operation The importance of collective State action to protect and preserve the environment was highlighted in the historic Stockholm Declaration, adopted during the 1972 United Nations Conference on the Human Environment (Stockholm Conference).406 The 1972 Stockholm Conference laid the foundation for the establishment of the United Nations Environmental Programme (UNEP), a subsidiary organ of the United Nations,407 whose purpose is to promote international co-operation in the field of environmental protection.408 Modern environmental law rests upon the principle of co-operation among States, and it is the thread that stitches together the multitude of international and regional instruments that apply to the protection and preservation of the environment, including the marine environment. The cooperative foundation for addressing the environmental threat to the marine environment of the UNEP Regional Seas Programme was based directly on principle article 24 of the Stockholm Declaration, which calls for multilateral co-operation to “control, prevent, reduce and eliminate adverse environmental effects.”409 This collective spirit of addressing environmental concerns is embodied in the notion introduced at the 1992 UNCED that the protection of the environment and its living resources is a ‘common concern.’410 The UNEP Regional Seas Programmes, with eighteen regional seas programmes under its auspices, remains the principal regional mechanism for co-operation, creating an institutional and governance framework for the protection and preservation of the marine environment based on state co-operation at the regional

Vessel-Source Pollution? An Empirical Survey of the Practical Exercise by Port States of Their Powers of Control, 23 INT’L J. MAR. & COASTAL L. 715–759 (2008); Erik Jaap Molenaar, Port State Jurisdic- tion: Toward Comprehensive, Mandatory and Global Coverage, 38 OCEAN DEV. & INT’L L. 225–257 (2007). 406 UN Doc. 48/14, 16 June 1972, reprinted in 11 ILM 1416 (1972). U.N. General Assembly Reso- lution 2997 (XXVII) of December 15, 1972, on the institutional and financial arrangements for international environmental co operation, 12 ILM 433 (1973). See, Patricia Birnie, The Development of International Environmental Law, 3 Brit. J. int’l stud. 169–190 (1977). 407 UNEP was established under article 22 of the United Charter. It is not a specialized agency of the United Nations as provided under article 57 of the United Nations Charter. As a subsidiary organ of the United Nations UNEP lacks the autonomous status of UN specialized agencies, which limits its funding options to voluntary contributions, whereas a specialized agency has its own separate budget. See Said Mahmoudi, The United Nations Environment Programme (UNEP) – An assessment, 5 ASIAN Y.B. INT’L L. 175–198 (1995). 408 UNEP’s mandate also includes the progressive development of environmental law. See Alexander Timochenko, UNEP Initiatives to Promote Compliance with Multilateral Environment Agreements, in Economic Globalization and Compliance With International Environmen- tal Agreements 125–137, 126 (Alexandre Kiss, Dinah Shelton & Kanami Ishibashi, eds., 2003). 409 G.A. Res. 2997, 27 U.N. GAOR Supp. (No. 30) at 30, U.N. Doc. A/8730 (1972); Peter C. Schro- der, UNEP’s Regional Seas Programme and the UNCED Future: Apres Rio, 18 OCEAN & COASTAL MGMT. 101–111 (1992); Mark Allen Gray, The United Nations Environmental Programme: An Assess- ment, 20 Envtl. L. 291 (1990). 410 Patricia Birnie, Alan Boyle & Catherine Redgwell, International Law and the Environ- ment 3rd ed., 128–130 (2009). The Regional Legal Framework for the Protection and Preservation 79 level.411 It does not, however, provide a uniform legal framework, nor does it have the centralized regulatory role of international organizations such as the United Nations International Maritime Organization (IMO).412 Consequently, there is no overarching governance system that establishes a common framework of principles, obligations, aspirations or methods of compliance and enforcement.413 The UNEP Regional Seas Programme in some cases, such as the Mediterranean Sea Programme, provides administrative functions whereas in others, such as the Black Sea, does not. Each regional sea programme has adopted different instruments at differing levels of application of existing norms, principles and approaches. Nonetheless, the UNEP Regional Seas Programme remains a key mechanism to promote co-operation through coordinated action and implementation of global responsibilities at the regional level, and fulfilling specific localized needs that cannot be addressed through global instruments.414

2.3 International Law Principles and Norms for Sustainable Governance of the Marine Environment Environmental governance at the global level is comprised of States and governments, national and international institutions and agreements that form a complex decision and policy-making network.415 The global standards and norms for protection of the environment as developed at the global level require implementation at the national level416 based on the national capacity of each country.417 The

411 Detailed information on the UNEP Regional Seas Programme available at http://www.unep .org/regionalseas/. 412 In general see, José E. Alvarez, International Organizations as Law-Makers (2005). See also, Geoffrey Palmer, New Ways to Make International Environmental Law, 86 AMER. J INT’L L 259–283, 260–64 (1992). 413 For a view against centralization of UNEP and transforming it into an international organization see, Adil Najam, The Case Against a New International Organization, 9 Global Governance, 367–384 (2003). 414 The regional approach also provides a legal mechanism to impose obligations on countries that may not be party to global instruments, such as the 1982 LOSC. See Tullio Treves, Regional Approaches to the Protection of the Marine Environment, in The Stockholm Declaration and the Protection of the Marine Environment 137–154 (Myron H. Nordquist, John Norton Moore & Said Mahmoudi eds., 2003). Treves also points out the potential problem of conflicting obligations between the regional and global legal instruments. Id. at 146–47. 415 Jodie Hierlmeier, UNEP: Retrospect and Prospect – Options for Reforming the Global Environ- mental Governance Regime, 14 GEO. INT’L ENVT’L REV. 767 (2002). 416 For a discussion of global standard-making for international environmental law see “Methods to Expedite Environment Protection: International Eco-standards” in Philip H. Sands, Transnational Environmental Law Lessons in Global Change 11–33 (1999). 417 The principle of “common but differentiated responsibilities” recognizes the difference in capacity and economic ability between developed and developing States in adopting and implementing international environmental standards and responsibilities. It was defined in Principle 7 of the 1992 Rio Declaration and has been expressly adopted in the United Nations Framework Convention on Climate Change (UNFCCC) 9 May 1992, 1771 U.N.T.S. 107 and its Kyoto Protocol, 11 Dec. 1997, 2303 U.N.T.S. 148; Convention on Biological diversity (CBD) 5 June 1992, 760 U.N.T.S. 79; and the Vienna Convention for the Protection of the Ozone Layer (Ozone Convention) 80 Chapter III

Johannesburg Plan of Implementation (JPOI) declared that good governance was fundamental at the global level for sustainable development,418 a concept originally introduced in 1987 by the World Commission on Environment and Development (Brundtland Commission).419 The importance of international co-operation for the protection of the environment and for achieving sustainable development has been underscored in all key instruments, beginning with the historic 1972 Declaration of the United Nations Conference on the Human Environment, adopted in Stockholm during the United Nations Conference on the Human Environment, held 5 to 16 June 1972420 and the 1992 Rio Declaration adopted during the 1992 United Nations Conference on the Environment and Development (UNCED).421 In the context of global environmental governance and co-operation, the regional level represents a critical middle ground between the global and national levels.422 The principles of governance for the protection of the marine environment can be found in a number of sources, including treaty-law, customary international law and, as referred to by many authors, ‘soft law’ sources.423 The development of the latter is

22 Mar. 1985, 1513 U.N.T.S. 293. See Christopher D. Stone, Common but Differentiated Responsi- bilities in International Law, 98 AM. J. INT’L L. 276–30 (2004); Birnie, Boyle & Redgwell, supra note 410, at 132–137. 418 Available at http://www.un.org/esa/sustdev/documents/WSSD_POI_PD/English/WSSD_ PlanImpl.pdf. 419 The United Nations General Assembly established the World Commission on Environment and Development (‘WCED’) pursuant to U.N. Doc. A/RES/38/161 (1983). In 1987 the WCED issued its now famous “Bruntland Report”, named after its Chair Gro Harlem Brundtland, former Prime Minister of Norway. The Bruntland Report defined sustainable development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs,” Our Common Future, The World Commission on Environment and Development 43 (1987). Professor Bodansky notes, however, that sustainable development has been defined in “countless ways” and that there is no general accepted meaning. Daniel Bodansky, The Art and Craft of International Environmental Law 33 (2010); For an interesting commentary on the meaning to be ascribed to the term “sustainable development” see also, Richard Eckersley, The concept of sustainable development, in Our Common Future: Environmental Law and Policy Workshop, 46–57 ( Juliet M. Behrens & B. Martin Tsamenyi, eds., 1991); Sumudu A. Atapattu, Emerging Principles of International Environmental Law, 77–201 (2006); Bır- nıe, Boyle & Redgwell, supra note 410. 420 Stockholm Declaration, UN Doc. A/CONF.48/14, 16 June 1972, reprinted in 11 ILM 1416 (1972). In general see Alexandre Kiss & Dinah Shelton, Guide to International Environmental Law 32–37 (2007). 421 Supra note 54. 422 Koh Kheng-Lian & Nicholas A. Robinson, Regional Environmental Governance: Examining the Association and Southeast Asian Nations (ASEAN) Model, in Global Environmental Gover- nance: Options and Opportunities (Yale Center for Environmental Law & Policy (Daniel C. Esty & Maria H. Ivanova, eds., 2002). 423 Kiss & Shelton, Guide to International Environmental Law, supra note 419, at 8–11, (2007). See also Patricia Birnie, International Environmental Law: Its Adequacy for Present and Future Needs, in The International Politics of the Environment: Actors, Interests and Institutions 51–84, 52–54 (Andrew Hurrell & Benedict Kingsbury, eds., 1992); Freestone, Prin- ciples of Modern Oceans Governance, supra note 395. Freestone identified ten general principles for modern oceans governance which have application to all areas of the sea, including the high seas. Id., at 391. The Regional Legal Framework for the Protection and Preservation 81 directly related to the progressive development of the separate field of international environmental law. One of the most significant sources of principles of modern international environmental is the 1992 Rio Declaration and Agenda 21. World Governments convened in Rio de Janeiro to address the pressing matter of the earth’s environment. The 1992 UNCED concluded by adopting the Rio Declara- tion and Principles424 and the landmark Agenda 21 for Sustainable Development,425 which intended to provide a blueprint for environmental management at the global level for the 21st Century. UNCED marked a turning point for the world in many ways, but most significantly in adopting “sustainable development” as the future developmental model for environmental policy-making and management.426 The Rio Declaration laid out key components for modern environmental governance, such as, promoting public participation,427 the need for States to enact effective environmental legislation,428 obligation of States to develop national law regarding liability and compensation for the victims of pollution and other environmental damage,429 and the polluter pays principle.430 Chapter 17 of Agenda 21 was devoted entirely to oceans and the marine environment and adopted what were then considered to be emerging principles of international environmental law such as, inter alia, sustainable development, a preventive/anticipatory/precautionary approach, use of environment impact assessment and integrated management.431 Agenda 21 and Chapter 17 embraced a holistic approach to managing the natural resources of the seas integrating fishing, coastal development, waste management, water quality and shipping policies rather than treating them as separate issues.432 The sustainable development approach sought to balance the inequality between the developed and developing economies by promoting for economic growth while preserving the environment. Ocean and

424 Id. 425 Supra note 394. Available at http://www.un.org/esa/dsd/agenda21/res_agenda21_00.shtml. 426 Gunnar Kullenberg, Approaches to addressing the problems of pollution of the marine environment: an overview, 42 OCEAN & COASTAL MGMT. 999 (1999); Pinto, The United Nations Convention on the Law of the Sea: Sustainable development and institutional implications, in Oceans Governance Sustainable Development of the Seas 3–27 (Peter B. Payoyo, ed., 1994). See also, David Vanderzwaag, The Concept and Principles of Sustainable Development: ‘Rio Formulating’ Common Law Doctrines and Environmental Law, 13 WINDSOR Y.B. OF ACCESS TO L. 39 (1994). For an interesting analysis of the difference between “sustainable development” and “sustainable management” see Ellen Hey, T. Ijistra & André Nolkaemper, The 1992 Paris Convention for the Pro- tection of the Marine Environment of the North-East Atlantic: A Critical Analysis, 8 INT’L J. MAR. & COASTAL L. 1 (1993). 427 Principle 10. 428 Principle 11. 429 Principle 13. 430 Principle 16. 431 Supra note 394, at Para. 17.21. 432 See Biliana Cicin-Sain, Robert W. Knecht & Gregory W. Fisk, Growth in capacity for integrated coastal management since UNCED: an international perspective, 29 OCEAN & COASTAL MGM’T 93–123 (1995). 82 Chapter III marine governance would be based on this new and important departure from the existing sectoral approach to environmental policy-making and management.433 It was just on the cusp of the 1992 UNCED that the Black Sea Regional Seas Pro- gramme was initiated. This chapter will critically examine the development of the regional framework for the protection of the marine environment of the Black Sea highlighting its gaps through a comparative analysis with other regional seas legal and institutional frameworks.

3. Building Sustainable Governance in the Black Sea

3.1 Early Efforts Good governance of the marine environment for seas that border more than one state fall into two broad categories: global rules such as the 1982 LOSC and the 1992 UNCED and regional rules, such as the UNEP Regional Seas Programme.434 However, until the early 1990s environmental governance in the Black Sea was only based on either multilateral environmental agreements (MEA) or national environmental law. This created a disjointed system for regional environmental governance. The first regional environmental instrument for the Black Sea was the 1959 Convention Con- cerning Fisheries in the Black Sea (Varna Fisheries Convention).435 However, it was an imperfect regional agreement as it had been concluded among only three of the Black sea coastal states: the former USSR, Bulgaria and Romania. During the period before the collapse of the USSR, the Cold War had been an important obstacle to establishing regional environmental governance for the Black Sea. During the negotiations of the first Convention for the Protection of the Mediterranean Sea against Pollution (Barcelona Convention),436 adopted in 1976, a proposal made by the former USSR to include the Black Sea within the scope of the Barcelona Convention

433 The Brundtland Report called for the need to integrate sectors considered to be separate such as industry and agriculture and for international, not unilateral, acts noting that the integrated and interdependent nature of the new challenges and issues contrasts sharply with the nature of the institutions that exist today. These institutions tend to be independent, fragmented, and working relatively narrow mandates with closed decision processes . . . The real world of interlocked economic and ecological systems will not change; the policies and institutions concerned must.” Our Common Future (1987) (“Brundtland Report”). See also, Miles, supra note 403, at 414–448; Richard Falk & Hilal Elver, Comparing Global Perspectives: The 1982 UNCLOS and the 1992 UNCED, in Order for the Oceans at the Turn of the Century, 145–156 (Davor Vidas & Willy ∅streng, eds., 1998). 434 Furthermore, a distinction is made between global rules that are comprehensive such as the 1982 LOSC and those that are specific such as the 1972 London Dumping Convention. See SANDS, supra note 200, at 399. See also, David M. Dzidzornu, Marine Environment Protection Under Regional Conventions: Limits To The Contribution of Procedural Norms, 33 OCEAN DEV. & INT’L L. 263 (2002). 435 7 July 1959, 486 U.N.T.S. 157. 436 Convention for the Protection of the Mediterranean Sea against Pollution, supra note 90. The Regional Legal Framework for the Protection and Preservation 83 was rejected so as to prevent any possible influence of the USSR in the region.437 The Barcelona Convention consequently limited its scope in the Mediterranean Sea to the area between the Straits of Gibraltar and the Southern limits of the Turk- ish Dardanelles Strait, between Mehmetcik and Kumkale lighthouses, excluding any connection with the Black Sea.438 Yet, in geo-ecological reality the Black Sea and the Mediterranean Sea constitute a large interrelated ecosystem, especially in relation to migration of certain fish stock and cetaceans. Likewise, current flows between these seas act as conduits for carrying pollution, particularly in a north-south direction, as the strong surface current of the Black Sea flows into the Mediterranean Sea. Some years later, during the period known as Perestroika, in 1986, the USSR initiated the process to bring together the then four Black Sea countries (USSR, Romania, Bulgaria and Turkey) to develop and agree upon a convention for the protection of the marine environment of the Black Sea.439 However, these negotiations failed to produce a regional agreement.

3.2 Regional Governance Framework for the Black Sea In 1992, following the collapse of the USSR, the Black Sea coastal States, whose number had increased from four to six with the addition of the newly independent States of Ukraine and Georgia, came together in the Romanian capital city of Bucharest and adopted the first Black Sea regional environmental convention: the Convention for the Protection of the Black Sea Against Pollution (Bucharest Convention)440 laying the foundation for an historical legal and political collaboration in the region, the first since the 1936 Montreux Convention on the Regime of the Straits.441 This Convention was all the more remarkable as it was concluded during a period when relations among some of the six Black Sea coastal States were tense. For instance, during this period Ukraine and Russia were engaged in a serious diplomatic conflict over access to the Azov Sea as well as the status of the naval shipyards along

437 Peter M. Haas, Saving the Mediterranean 99 (1990). During the Eleventh Annual Con- ference held by the Law of the Sea Institute on the subject of “Regionalization of the Law of the Sea” Mr. Kolodkin (former ITLOS judge and USSR Representative to UNCLOS III) in stressing the importance of regionalization, stated that he could not understand why the Soviet Union, Bulgaria, Romania and the Black Sea Congress had been invited to the Barcelona Conference not as partici- pants but only as observers given that the Black Sea was a subregional zone of the Mediterranean. He stated that he “could not understand how there can be full compliance with the provisions of that conference without the Black Sea Congress.” See J.T. Kildow, Regional Politics in the Manage- ment of Marine Resources, in Proceedings of the Law of the Sea Institute Eleventh Annual Conference, 45 (D.M. Johnston, ed., 1997). 438 Article 1(1). 439 Laurence D. Mee, Can the Marine and Coastal Environment of the Black Sea be protected, supra note 35, at 133–161. 440 Supra note 32. 441 Supra note 29. 84 Chapter III the Ukrainian coast.442 Despite the many economic and political difficulties that the region was undergoing the Black Sea Regional Sea Programme was put into motion. In addition to the Bucharest Convention, the six Black Sea coastal States also adopted three Protocols: the Protocol on the Protection of the Black Sea Marine Environment Against Pollution from Land-based Sources (LBS Protocol);443 the Pro- tocol on Co-operation in Combating Pollution of the Black Sea Marine Environment by Oil and Other Harmful Substances in Emergency (Emergency Protocol);444 and the Protocol on the Protection of the Black Sea Environment Against Pollution by Dumping (Dumping Protocol).445 In 2002 the six countries adopted a fourth Proto- col, the Black Sea Biodiversity and Landscape Conservation Protocol (Biodiversity and Landscape Protocol).446 The 1996 Black Sea-TDA447 provided the scientific foundation for the Black Sea-SAP adopted in 1996.448 Funded by the GEF449 it was prepared by sixteen specialists from fourteen countries between 1993 and 1996.450 The 1996 Black Sea-TDA approached the subject matter of Black Sea environmental degradation at three levels: Level 1 identified seven categories of major perceived problems related to environmental degradation451 and the transboundary elements and the main institutional or soci-

442 See, The Russia-Ukraine Treaty on Friendship, Cooperation and Partnership, with Declaration and Joint Statement, 36 ILM (1997). For a detailed diplomatic analysis of Ukraine and Russian relations following the dissolution of the former USSR. See, A. Feldhusen, Geography and the Boundaries of Confidence: The “Russian Factor” in Ukrainian Foreign Policy, 23 FLETCHER FOREIGN WORLD AFF. 119 (1999). 443 Protocol on Protection of the Black Sea Against Land-Based Sources, 22 Apr. 1992, 32 ILM 1122. 444 Protocol on Cooperation in Combating Pollution of the Black Sea Marine Environment by Oil and Other Harmful Substances in Emergency Situations, 22 Apr. 1992, 32 ILM 1127. 445 Protocol on Protection of the Black Sea Against Pollution by Dumping, 22 Apr. 1992, 32 ILM 1129. The Land-Based Source Protocol and Dumping Protocol are accompanied by Annexes containing black and grey lists. Substances listed in the Black lists (Annex I) are categorized as hazardous and need to be prevented and eliminated by the Contracting Parties. Substances listed in the grey list (Annex II) as noxious, need to be reduced and where possible eliminated. Annex III provides restrictions to which discharges of substances and matters listed in Annex II should be subject. Furthermore, a prior special permit for the dumping of wastes and materials containing noxious substances contained in Annex II is required. 446 9 Apr. 2011. Available at http://www.blacksea-commission.org/_table-legal-docs.asp. 447 Supra note 40. 448 1996 Black Sea-SAP supra note 51. 449 A three-year Black Sea Environmental Programme was established in 1993 with GEF funding and EU funding in the amount of US$ nine million. See Black Sea Transboundary Diagnostic Analysis (United Nations Development Programme, 1997). 450 Id. 451 (1) Decline in Black Sea commercial fish stock (2) loss of habitats, wetlands and shelf areas supporting important biotic resources (3) loss or imminent loss of endangered species and their genomes (4) replacement of indigenous Black Sea species with exotic ones (5) degradation of the Black sea landscape (6) inadequate protection of the marine and coastal resources from maritime accidents and (7) unsanitary condition in many beaches, bathing and shellfish growing waters. Id., at 3. The Regional Legal Framework for the Protection and Preservation 85 etal causes of these problems.452 Level 2 proposed specific actions to be taken in three areas: reduction of pollution, living resources management and sustainable human development.453 Level 3 provided detailed analysis of the problems associated with each of the three action areas. The 2007 Black Sea-TDA454 provided the scientific basis for adoption of the revised Black Sea Strategy Action Plan in 2009.455 The voluminous 2007 Black Sea-SAP differed from the relatively brief 1996 Black Sea-SAP by broadening its scope to include a detailed legal and institutional assessment of the regional governance for the protection of the Black Sea. The 2009 Black Sea-SAP committed the signatories to the three key management principles: integrated coastal zone management (ICZM); the ecosystem approach; and the integrated river basin management (IRBM).456 Instead of the specific targets adopted in the 1996 Black Sea-SAP, the 2009 Black Sea-SAP adopted long-term ecosystem quality objectives (ECOQOS), described as “statements regarding the vision that reflect how stakeholders would like the state of the Black Sea to be over the long term, based on a resolution of priority problems identified in the Transboundary Diagnostic Analysis.” The four ECOQOS are:

ECOQO 1: preserve commercial marine living resources; ECOQO 2: conserve black sea biodiversity and habitats; ECOQO 3: reduce eutrophication; and ECOQO 4: ensure good water quality for human health, recreational use and aquatic biota.

In place of target dates, the 2009 Black Sea-SAP chose “management targets” that were ranked as short-term (1.5 years), medium-term (5–10 Years) and long-term (> 10 years).457

3.3 The 2007 Black Sea-TDA Legal and Institutional Analysis The 2007 Black Sea-TDA found significant weaknesses in both the institutional and legal structure for the regional regime. Most significant was the conclusion that the 1996 Bucharest Convention represented the antiquated first generation of framework regional seas convention.458 It further noted the incongruence between the goals set

452 (1) Poor legal framework at the regional and national level (2) inadequate implementation of available regulatory instruments (3) inadequate planning at all levels (4) insufficient public involvement and (5) inadequate financial mechanisms and support. Id. 453 Id. 454 Supra note 1. 455 Supra note 42. See also, Implementation of the Strategic Action Plan for the Reha- bilitation and Protection of the Black Sea (2002–2007), A Report by the Commission on the Protection of the Black Sea against Pollution (2009). 456 Id., at 8. 457 Id., at 9. 458 Supra note 1, at 137. 86 Chapter III by the Black Sea Secretariat and the available resources.459 Furthermore, the 2007 Black Sea-TDA criticized the lack of output and accountability of the seven Advisory Groups under the Black Sea Commission, noting that the Black Sea countries did not find their work to be relevant for national policy-making and decision-making, especially in light of the lack of national funding for implementing the outputs.460 The 2007 Black Sea-TDA provided the example of the failure of Black Sea countries to use the outputs from the Black Sea Integrated Monitoring and Assessment Programme, a valuable source of data on the status of the Black Sea environment, because of insufficient national funding for laboratories and the necessary scientific capacity. At the national levels, the 2007 Black Sea-TDA found national legislation to be strong but enforcement to be weak.461 The role of the EU, as a consequence of Bulgarian and Romanian accession, is viewed as a positive development especially towards making large capital investments to address pollution hot spots. Nonetheless, the 2007 Black Sea-TDA concluded that there was a need for improved co-operation between the environmental ministries of the Black Sea countries.462

4. Legal Framework for Co-operation for the Protection of the Black Sea Marine Environment

4.1 Obligations, Principles and Actions for Co-operation The Black Sea legal framework for protection of the marine environment at the regional level was established under the UNEP Regional Seas Programme in 1992. Similar to other regional seas programmes established under UNEP, the Black Sea regime is based on the ‘convention-protocol’ approach where there is a framework convention that is supplemented with more detailed and outcome-oriented protocols.463 The Bucharest Convention, made up of thirty articles, is the primary framework convention that sets out the overall objectives and obligations of the Par- ties. The Preamble of the Bucharest Convention, a relatively short introductory text, refers to only four international conventions relevant to the protection of the marine environment: the 1972 London Dumping Convention as amended,464 the MARPOL Convention 1973/78,465 the 1989 Convention on Control of Transboundary Move-

459 Id., at 7. 460 Id. See also Table 11. 461 Id., at 8. 462 Id. 463 Lawrence Susskind & Connie Ozawa, Negotiating More Effective International Environmental Agreements, in International Politics of the Environment; Actors, Interests and Institu- tions, 142–165, (Andrew Hurrell & Benedict Kingsbury eds., 1992). 464 Convention for the Prevention of Marine Pollution by Dumping of Wastes and other Matter, 29 Dec. 1046 U.N.T.S. 120 (“London Convention”). 465 International Convention for the Prevention of Pollution by Ships, 2 November 1973, ILM 1319 (1973); Protocol of 1978 Relating to the International Convention for the Prevention of The Regional Legal Framework for the Protection and Preservation 87 ment of Hazardous Wastes and their Disposal (Basel Convention),466 and the 1990 International Convention on Oil Pollution, Preparedness, Response and Co-operation (OPRC).467 The preamble makes no reference to the 1982 LOSC, the Stockholm Declaration468 or the 1992 Rio Declaration and Agenda 21, the latter taking place subsequent to the adoption of the Bucharest Convention.469 The difference of a few months between the adoption of the Bucharest Convention and the adoption of the Rio Declaration and Agenda 21 had negative consequences for the Black Sea. Rather than adopting state-of-the-art norms and principles for modern marine and coastal governance the Black Sea legal regime would be cast from the outset in an outdated legal mould. The scope of the Convention is limited to the Black Sea proper, excluding the Azov Sea. The southern limit of the Black Sea is defined for the purposes of the application of the Convention as the line joining Cape Kelagra and Dalyan.470 The Convention applies to the territorial sea and exclusive economic zones of the Parties, although these limits can be extended in protocols or other related instruments.471 The only definitions provided in the Convention are for “pollution,”472 “vessel” and “aircraft,”473 “dumping,”474 and “harmful substances.”475 In general, the Bucharest Convention provides for the obligations to be fulfilled by all the Contracting Parties, which include, in particular, “the prevention, reduction and control of pollution.”476 There is no provision that expressly states the purpose or aim of the Convention as it is apparently subsumed in the obligation related to pollution prevention. In addition, the Parties are responsible for the fulfillment of their international obligations concerning the protection and the preservation of the marine environment of the Black Sea.477 The provision is important as through incorporation by reference of obligations under other international conventions and customary international law it implicitly expands the scope of the Convention beyond regulating only pollution-causing activities. The Convention further imposes a positive duty on each Party to take domestic action to prevent, reduce and control pollution from land-

Pollution from Ships, 2 November 1973 12 ILM 1319; amended in 17 February 1978, in force 2 Octo- ber 1983 1340 U.N.T.S. 61 (“MARPOL 73/78”). 466 22 March 1989, in force 1992; 1673 U.N.T.S. 57. 467 30 Nov. 1990, in force 13 May 1995; 30 ILM 733 (1991). 468 Stockholm Declaration, UN Doc. A/CONF.48/14, 16 June 1972, reprinted in 11 ILM 1416 (1972). In general, see ATAPATTU, supra note 419, at 79–81. 469 The United Nations Conference on the Environment and Human Development held in Rio de Janeiro took place on 3–14 June 1992. 470 Article I(1). 471 Article (2). 472 Article II(1). 473 Article II(2)(a)–(b). 474 Article II(3) (a)–b). 475 Article II(4). 476 Article V(2). 477 Article XVI(1). 88 Chapter III based sources,478 vessel-based sources, and dumping,479 as well as to co-operate in order to prevent, reduce and combat pollution due to emergency situations.480 The Convention also requires that the Contracting Parties, as soon as is possible, adopt laws and regulations to prevent, reduce and combat pollution for activities in the continental shelf,481 and atmospheric pollution including from vessels flying Con- tracting Party flags and from aircraft under Contracting Party registry.482 In addition, concurrent with the adoption of the Bucharest Convention the Parties adopted a resolution to elaborate and adopt a protocol on transboundary transport of hazardous substances and co-operation in combating illegal traffic. The Bucharest Convention further acknowledged that the Contracting Parties, in taking measures consistent with international law, have the duty to co-operate in preventing pollution of the marine environment from hazardous waste in transboundary movement.483 Under the Convention the Parties further undertook to co-operate and harmonize laws for liability for damage caused to the marine environment of the Black Sea to ensure the highest degree of deterrence and protection for the Black Sea as a whole.484 One of the lengthiest provisions in the Bucharest Convention is Article XV on “Scientific and Technical Co-operation and Monitoring”. The Contracting Parties are obliged to conduct scientific research, to engage in joint scientific research programmes, and to exchange relevant scientific data and information.485 Further- more, the Parties must conduct studies that will: (1) develop ways and means for assessing the nature and extent of pollution and its effects; (2) detect polluted areas; (3) examine and assess risks and find remedies; and (4) develop alternative methods of treatment, disposal, elimination or utilization of harmful substances.486 In addition, the Parties are required to co-operate through the Black Sea Commission (BSC) in developing the scientific criteria to serve as the basis of the rules, standards and recommended practices and procedures for the prevention, reduction and control of pollution of the Black Sea.487 And, through the BSC the Parties are obligated to

478 Article VII and in accordance with the Protocol on the Protection of the Black Sea Marine Environment against Pollution from Land-Based Sources. For a recent analysis of UNEP land- based activities in the Black Sea, see The Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities (United Nations Environmental Programme, 1999). Available at http://www.gpa.unep.org. 479 Article X and in accordance with the Protocol on the Protection of the Black Sea Marine Environment by Dumping. The dumping of matter classified as “noxious” in Annex II requires a special permit for each case from the national authorities whereas matter classified as “hazardous” requires only a general permit. 480 Article IX and in accordance with the Protocol on Cooperation in Combating Pollution of the Black Sea by Oil and Other Harmful Substances in Emergency Situations. 481 Article XI. 482 Article XII. 483 Article XIV. 484 Article XVI(2). 485 Article XV(1). 486 Article XV(2). 487 Article XV(3). The Regional Legal Framework for the Protection and Preservation 89 establish pollution monitoring programmes for the Black Sea, where appropriate, in co-operation with other competent international organizations.488 Although the provision does not use the term “environmental impact assessment” in situations where the Parties have reason to believe that activities under their jurisdiction or control may cause substantial pollution or significant harmful changes to the marine environment of the Black Sea, the Parties are required to assess such potential effects and report their findings to the Commission.489 The Parties are also obligated to co-operate in “the development, acquisition and introduction of clean and low- waste technology, inter alia, by adopting measures to facilitate the exchange of such technology.”490 Finally, the provision mandates each Party to designate a competent national authority responsible for scientific activities and monitoring.491 Amendments to the Convention or protocols must be made by consensus492 and decisions pertaining to all financial matters by unanimous vote.493 A Diplomatic Conference of the Parties to consider a proposed new protocol to the Convention requires the consent of all the Parties.494 These requirements for unanimous action on making any changes to the existing Convention and protocols will be discussed further on, but progress in updating the legal instruments to reflect developments in science and law has been slow. The Bucharest Convention includes article XXV on “Dispute Settlement” that states:

In case of dispute between Contracting Parties concerning the interpretation and implementation of this Convention, they shall seek a settlement of the dispute through negotiations or any other peaceful means of their own choice. The Parties, according to the plain meaning of the language used, are mandated to seek resolution of a legal dispute. This duty is evidenced by the use of the imperative “shall.” In addition to disputes on the interpretation of the Convention the Parties can also seek dispute settlement in the case of the failure of one or more of the Contracting Parties to fulfill their obligations under the Convention. However, in the case of failed negotiations there is no requirement that Parties must seek a binding judicial settlement. This issue has become especially relevant following the Southern Bluefin Tuna Case series of judicial decisions495 and the Mox Plant Case

488 Article XV(4). 489 Article XV(5). 490 Article XV(6). 491 Article XV(7). 492 Article XXI. 493 Article XXIII. 494 Article XXVI. 495 Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan, Provisional Measures Cases 3 and 4, ITLOS, (1999) 38 ILM 1624 (SBT Order), available at http://www.itlos.org/fileadmin/ itlos/documents/cases/case_no_3_4/Order.27.08.99.E.pdf; Southern Bluefin Tuna Case (Australia & New Zealand v Japan) ( Jurisdiction and Admissibility) (2000) 39 ILM 1359 (SBT Award). 90 Chapter III series of decisions.496 In the Southern Bluefin Tuna Case the Annex VII arbitral tribunal seized to adjudicate the merits of the case decided that the “non-compulsory” dispute settlement provision in another instrument, the 1993 Convention for the Conservation of Southern Bluefin Tuna (SBT Treaty),497 superseded the compulsory dispute settlement provisions of Part XV498 of the 1982 LOS Convention.499 On similar grounds, in the Mox Plant Case, the Permanent Court of Arbitration decided on the inapplicability of the compulsory dispute settlement provisions of the 1982 LOSC on the grounds that the case fell within the exclusive competence of the European Commission.500 The Bucharest Convention is a barebones framework convention that provides for general obligations. One notable gap in the Bucharest Convention is the lack of legal principles to serve as the basis of co-operative action among the six Black Sea States. In an effort to remedy this gap and others in the Bucharest Convention and its protocols, four Ministerial Declarations were adopted: the Odessa Declaration

496 MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, ITLOS, (2001); Dispute Concerning Access to Information Under Article 9 of the OSPAR Convention (Ir. v. U.K.) (Perm. Ct. Arb. 2003); Ireland v. United Kingdom (MOX Plant Case). 497 Convention for the Conservation of Southern Bluefin Tuna, May 10, 1993, 1994 Austl. T.S. No. 16. 498 Part XV of the 1982 LOSC provides for a choice of forum among the International Tribunal for the Law of the Sea (ITLOS), a specialized body created by the Convention, the International Court of Justice, an arbitral tribunal constituted in accordance with Annex VII of the Conven- tion, and a special arbitral tribunal constituted in accordance with Annex VIII. See Alan E. Boyle, Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction. 44 INT’L & COMP. L. Q. 37–54 (1997); Jonathan I. Charney, The Implications of Expanding Inter- national Dispute Settlement Systems: the 1982 Convention on the Law of the Sea, 90 AM. J. INT’ L. 69–75 (1996); Shiguda Oda, Dispute Settlement Prospects in the Law of the Sea, 44 INT’L & COMP. L Q. 863–872 (1995); Natalie Klein, Litigation over Marine Resources: Lessons for Law of the Sea, International Dispute Settlement and International Environmental Law, 28 AUSTRALIAN YB INT’L L. 131–179 (2009). 499 The Annex VII arbitral tribunal declined accepting jurisdiction in the case on the merits on the grounds that the 1993 Convention on the Southern Bluefin Tuna case was adopted by the Parties subsequent to the 1982 LOSC and therefore superseded the 1982 LOSC. See Barbara Kwiatkowska, The Australia and New Zealand v Japan Southern Bluefin Tuna Jurisdiction and Admissibility) Award of the First Law of the Sea Convention Annex VII Arbitral Tribunal, 16 INT’L J. MAR. & COASTAL L. 239 (2001); D.A. Cole & H. Hoyle Satisfying the Procedural Prerequisites to the Compulsory Dispute Settlement Mechanisms of the 1982 Law of the Sea Convention: Did the South- ern Bluefin Tuna Tribunal Get it Right?, 34 OCEAN DEV. & INT’L L. 34: 59–82 (2003). 500 Permanent Court of Arbitration, the Hague (2003); In turn the European Commission instituted proceedings against Ireland before the European Court of Justice on the grounds that Ireland had failed to fulfill its obligations under Articles 10 EC and 292 EC and Articles 192 EA and 193 EA by instituting dispute settlement proceedings before the ITLOS and the PCJ. The European Court of Justice found that Ireland had violated its obligations as claimed by the European Commission of the European Communities v. Ireland, 30 May 2006, Case C-459/03. See Barbara Kwiatkowska, The Ireland v United Kingdom (Mox Plant) Case, Applying the Doctrine of Treaty Parallelism, 18 INT’L J. MAR. & COASTAL L. 1–58 (2003). The Regional Legal Framework for the Protection and Preservation 91

(1993),501 the Sofia Declaration (2002),502 the Bucharest Declaration (2007)503 and the Sofia Declaration (2009).504 These were also supplemented with the 1996 Black Sea-SAP, as amended in 2002505 and the 2009 Black Sea-SAP,506 which are agreements adopted and signed by the Black Sea States. The 1996 and 2009 Black Sea-SAPs adopted the principles of the polluter pays principle, the precautionary principle, access to information, public participation, anticipatory actions, preventive actions and the use of clean technology.507 The 1993 Odessa Declaration sought to bridge the time lag between the adoption of the Bucharest Convention and the 1992 UNCED by incorporating the emerging principles of international environmental law adopted in Agenda 21 by governments. The Declaration underscored the dire state of the Black Sea marine environment, openly declared that existing efforts were insufficient to maintain sustainable development of the sea, and underscored the need for urgent, comprehensive, consistent and co-ordinated action at all levels. In addition to the objective of the protection and preservation of the Black Sea, the Declaration also included the rehabilitation of the Black Sea, where necessary. In order to meet the goals of protecting, preserving and where necessary rehabilitating the Black Sea, the Ministers declared their commitment to integrated management and sustainable development, in line with Agenda 21. In addition, the Ministers agreed that national policies would be based on the precautionary approach, use of low and non-waste technologies, employ an integrated approach to marine environmental protection with other areas of policy, economic incentives for the use of low and non-waste technologies, the polluter pays principle, user fees and the application of environmental impact assessment procedures to all sectors. The Odessa Declaration further committed the Black Sea States to taking specific actions by specific dates. For example, according to the Odessa Declaration the Parties were to elaborate and adopt before 1994 a Protocol to the

501 Odessa Declaration, Ministerial Declaration on the Protection of the Black Sea, Done at Odessa, 7 April 1993, (Hereinafter “1993 Odessa Declaration”). Available at http://www.blacksea- commission.org/_odessa1993.asp. 502 Declaration of the Ministers of Environment of the Contracting Parties to the Convention on the Protection of the Black Sea Against Pollution, Adopted at the Meeting of the Ministers of Environment of the Contracting Parties to the Convention on the Protection of the Black Sea Against Pollution, Sofia 2002. (Hereinafter “2002 Sofia Declaration”). Available at http://www .blacksea-commission.org/_sofia2002.asp. 503 Declaration of the Ministers in Charge of Water Management of the Contracting Parties to the Danube River Protection Convention and the Convention for the Protection of the Black Sea Against Pollution on the Enhancement of Cooperation, adopted at Bucharest, 23 February 2007. Available at http://www.blacksea-commission.org/_bucharest2007.asp. 504 Declaration of the Ministers of Environment of the Contracting Parties to the Convention on the Protection of the Black Sea Against Pollution on Strengthening the Cooperation for the Rehabilitation of the Black Sea Environment, Done at Sofia, 17 April 2009. Available at http://www .blacksea-commission.org/_sofia2009.asp. 505 Supra note 51. 506 Supra note 42. 507 Id., at Section 1.5. 92 Chapter III

Convention on the Protection of the Black Sea against Pollution, on the transboundary movement of hazardous wastes and cooperation in combating illegal traffic.508 One positive outcome of the 1993 Odessa Declaration was to attract GEF financing for its implementation and for the preparation of the Black Sea Strategic Action Plan.509 However, as a legal instrument the Odessa Declaration was of limited utility as it failed to provide a coherent legal regime for the Black Sea.510 A Ministerial Dec- laration, while important, cannot legally amend the Convention the requirements of which are included in the Convention itself.511 By contrast, the Mediterranean Action Programme undertook a comprehensive hard law approach by amending the Barcelona Convention and its protocols so as to be aligned with the principles and objectives of the 1992 UNCED and Chapter 17 of Agenda 21.512 The optimal outcome of the 1993 Odessa Declaration would have been to lead to the amendment of the Bucharest Convention. By 2002 it became evident that little progress had been accomplished in meeting the targets adopted by the Black Sea Parties under the 1996 Black Sea-SAP. This was expressly recognized in the Sofia Declaration of that year, which expressed concern in the lack of progress made by the Parties. The Declaration listed a number of areas of observed failure including the failure to adopt an emergency response protocol to the Black Sea Contingency Plan, the considerable delay in the implementation of the Strategic Action Plan for the Rehabilitation and Protection of the Black Sea, and the absence of commonly agreed upon indicators to assess the efficiency of measures implemented.513 The Sofia Declaration also served as the political foundation for amending the timetable that had originally been agreed to and adopted by the Black Sea coastal states. The reality was that by 2002 most of the benchmarks adopted under the 1996 Black Sea-SAP remained unfulfilled.514 This was particularly glaring in the commitments made for prevention of pollution from shipping activities (see Table 9).

508 Para. 7. Supra note 501. 509 See Bserp Final Technical Report, 21 (2004–2008) (On-file with author). 510 For a discussion on the legal force of Ministerial Declarations and the non-binding nature of the North Sea Ministerial Declarations see Yves van der Mensbrugghe, Legal Status of International North Sea Conference Declarations, in THE NORTH SEA: PERSPECTIVES ON REGIONAL ENVIRON- MENTAL CO-OPERATION, SPECIAL ISSUES OF THE INT’L J. ESTUARINE & COASTAL L. 15–22 (David Freestone & Yon Ijistra eds., 1990). 511 According to sub-paragraph 4 of article XX of the Bucharest Convention an amendment requires the consensus of the Contracting Parties. Supra note 32. 512 The development of a new convention to replace the 1976 Barcelona Convention was the result of a two-year process. See, Adelberta Vallega, Regional level Implementation of Chapter 17: the UNEP approach to the Mediterranean, 29 OCEAN & COASTAL MGM’T 251–278, 255 (1996). 513 Supra note 501. 514 See Nilufer Oral, The Black Sea: Moving Forward in The World Ocean in Globalisation 473 (Davor Vidas & Peter Johan Schei eds., 2011). The Regional Legal Framework for the Protection and Preservation 93

Table 8. 1996 Black Sea-SAP as Amended in 2002, Commitments for Vessel Source Pollution More effective implementation of MARPOL 1973/78 and its provisions of Special Area designation by 2007 (formerly 2002); Increase the capacity of harbor reception facilities in order to comply with MARPOL Special Area requirements. Harbor reception facilities to be installed: – for garbage by December 2007 (formerly 1999); – for oil by December 2007 (formerly 2000); – for chemicals by December 2007 (formerly 2002); – use of facilities shall be made compulsory; A harmonized system of port state control will be established in the Black Sea region through the adoption of a Memorandum of Understanding on Port State Control (Adopted in 2000); Black Sea states shall take the necessary steps to enable them to fully exercise their prescriptive and enforcement powers, in accordance with international; law, in order to pursue the reduction of illegal discharges by vessels into the Black Sea; A harmonized system of enforcement, including fines, to be developed for the Black Sea region by December 2007 (formerly 1998). The primary aim of this system will be to serve as a deterrent for illegal discharges and, where necessary, to exercise enforcement action against illegal dischargers; and Black Sea states will present a joint proposal to the IMO for conducting an in-depth study on measures to avoid any further introductions of exotic species into the Black Sea through the deballasting of vessels in 2004 (formerly 1997).

Table 9. 1996 Black Sea-TDA and Status of Corresponding Instruments as of 2012 1996 Black Sea-TDA Corresponding instrument Decline in commercial fish stock Draft Legally binding fisheries instrument Loss of habitats (wetlands and shelf areas) Biodiversity and Landscape Protocol Strategy Draft Marine Protected Areas Policy No ICZM Protocol Draft ICZM Strategy and Action Plan Introduction of harmful/alien species No regional ballast water management plan (ship ballast water) Loss of biodiversity Outdated Biodiversity and Landscape Protocol Strategy Draft Marine Protected Areas Policy No ICZM Protocol Degradation of the landscape Biodiversity and Landscape Protocol Strategy (in force as of 2011) Maritime accidents Emergency protocol Regional contingency response plan adopted SULH Oil Response Exercises Unsanitary beaches, bathing and No ICZM Protocol shellfish-growing water and beaches 94 Chapter III

The failure of the Black Sea States to fulfill their commitments under the 1996 Black Sea-SAP also highlighted the lack of an enforcement mechanism in the overall system. Rather than adopt measures, either through positive incentives or negative actions, the response was simply to adopt new and less ambitious commitments as exemplified in the 2002 Sofia Declaration, which was described as being “completely devoid of any precision,”515 and the 2009 Black Sea-SAP which used more flexible and non-committal “targets” stretched along short-term, medium-term and long-term time periods.516 The 1993 Odessa Declaration, the 1996 Black Sea-SAP, as amended in 2002 and the 2009 Black Sea-SAP were commitments with legal effect for the six Black Sea States. The 1969 Vienna Convention on the Law of Treaties defines a treaty as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”517 Agreements with legal force are not limited to treaties or conventions subject to formal ratification.518 In this regard, Black Sea Ministerial Declarations and Black Sea Strategic Action Plans can constitute formal binding agreements as they are adopted at the highest level of State representation at Diplomatic Conferences. The weakness or legal gap, however, as will be further discussed, is the lack of a viable enforcement mechanism of these commitments.

4.2 Institutional Framework for Co-operation The Black Sea institutional framework for the protection of the marine environment involves two regional organizations: the Commission for the Protection of the Black Sea against Pollution known as the Black Sea Commission, established through the United Nations Environmental Programme in 1992, and the Organization of the Black Sea Economic Co-operation (BSEC). UNEP established the Black Sea Commission expressly and exclusively for the protection of the Black Sea marine environment, whereas BSEC was established primarily to promote economic and trade activities in the broader Black Sea region and includes members that are non-Black Sea coastal States. Additional affiliated bodies of the BSEC include the Parliamentary Assem- bly of the Black Sea Economic Co-operation (PABSEC), the Black Sea Trade and

515 UNDP/GEF, FINAL REPORT, Black Sea Commission Institutional Review, 7 (July 2006). 516 Supra note 42. 517 Article 2 (a). Vienna Convention on the Law of Treaties, 23 May 1969, entered into force 27 Jan. 1980, 1158 U.N.T.S. 331 (1969). 518 Exchanges of letters between States can create a binding agreement. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar and Bahrain) ( Jurisdiction-First Phase) 112 ICJ Rep. 1992; Unilateral statements by States can also create binding commitments. Nuclear Test Case (Australia v France and New Zealand v France) (Merits) 253 ICJ Rep. (1974). The Regional Legal Framework for the Protection and Preservation 95

Development Bank, and the International Center for Black Sea Studies (ICBS) whose focus is research. Ideally BSC and BSEC should operate in tandem to create a partnership where the BSC serves as the environmental governance and scientific pillar and the BSEC as the economic pillar within the context of sustainable development for the Black Sea Region. However, in practice these two institutions have functioned in parallel to each other with little coordination. In fact, in many areas they have overlapping mandates, especially in terms of harmonizing the implementation of regional norms. However, because BSEC has not been active in implementing these measures no conflict between BSEC and the Black Sea Commission has occurred. But this is by default rather than by any substantive effort at coordination. There is a strong need for these two bodies to be fully harmonized and act in a coordinated fashion so as to create a strong regional system of governance for the protection of the Black Sea marine environment.

4.3 Commission for the Protection of the Black Sea against Pollution The BSC, based in Istanbul, is the official body responsible for the implementation of the Bucharest Convention and its protocols, as well as the Black Sea-SAP. The Commission is composed of one representative from each of the Black Sea countries. It meets annually and adopts an annual work program. The ultimate goal of the Commission is to “rehabilitate” the Black Sea, which is understood to mean restoring the sea to the environmental conditions observed in the 1960s.519 In order to achieve this goal, the Commission has been given a number of functions under Article 18 of the Bucharest Convention, which include:

1. Promoting the implementation of this Convention and informing the Contracting Parties of its work. 2. Making recommendations on measures necessary for achieving the aims of this Convention. 3. Considering questions relating to the implementation of this Convention and rec- ommending such amendments to the Convention and to the Protocols as may be required, including amendments to Annexes of this Convention and the Pro- tocols. 4. Elaborating criteria pertaining to the prevention, reduction and control of pollution of the marine environment of the Black Sea and to the elimination of the effects of pollution, as well as recommendations on measures to this effect. 5. Promoting the adoption by the Contracting Parties of additional measures needed to protect the marine environment of the Black Sea, and to that end receiving,

519 Annual Report 2003–2004 of the Commission on the Protection of the Black Sea against Pollution, at http://www.blacksea-commission.org/Main.htm. 96 Chapter III

processing and disseminating to the Contracting Parties relevant scientific, technical and statistical information and promoting scientific and technical research. 6. Cooperating with competent international organizations, especially with a view to developing appropriate programmes or obtaining assistance in order to achieve the purposes of the Convention.

The actual day-to-day responsibility for implementing the work programs falls upon the Black Sea Permanent Secretariat, which is also based in Istanbul. Seven Advi- sory Groups advise the Commission and the Secretariat (see Table 11). An Advisory Group is located in a city in each of the six Black Sea countries, thereby allocating resources among the different countries of the Black Sea, as well as constituting an “in-kind” contribution from each country. The Advisory Groups are an integral part of the institutional structure of the Commission and function as specialized subsidiary bodies. Their primary role is to advise the Commission and where necessary make recommendations. Another important function assigned to each of the Advi- sory Groups is to act as an intermediary between the Commission and the national authorities and other stakeholders in their respective countries. In many ways, they are to serve not only as specialized technical bodies but also as the “eyes and ears” of the Commission so as to promote more harmonious implementation of policy and consequently advance the objectives of the Bucharest Convention and the Black Sea-SAP. Financial support for the work of the Black Sea Commission and its Perma- nent Secretariat has been provided mostly through external sources, in particular the World Bank/GEF520 and EU funding such as through TACIS,521 PHARE522 and Europeaid.523 The first support to the Black Sea was delivered in 1993 when the EU and the GEF international waters project gave US$23 million in co-finance to

520 Established in 1991 the Global Environment Facility (GEF) is the largest international funder of environmental projects for developing countries and economies in transition. The GEF provides grants in six focal areas: biodiversity, climate change, international waters, land degradation, the ozone layer, and Pops. Pamela S. Chasek & David L. Downie, Global Environmental Politics 79 (5th ed. 2009). 521 Technical Assistance to the Commonwealth of Independent States (TACIS) was a programme established between 2000–2006 by the EU to provide support to the former States of the USSR following dissolution in transition to market economies and democracies. COUNCIL REG. No 99/2000 concerning the provision of assistance to the partner States in Eastern Europe and Central Asia. O.J. L. 12.1 (18.1. 2000). 522 The Programme of Community aid to the countries of Central and Eastern Europe (“Phare”) was established by the EU as the main financial instrument for pre-accession purposes. Avail- able at http://europa.eu/legislation_summaries/enlargement/2004_and_2007_enlargement/ e50004_en.htm. 523 European Commission Cooperation and Development-EUROPEAID provides development support globally on a wide array of issues including the environment and promoting good governance. Available at http://ec.europa.eu/europeaid/index_en.htm. The Regional Legal Framework for the Protection and Preservation 97

Table 10. Black Sea Advisory Groups ESAS – Advisory Group on the Environmental Safety Aspects of Shipping PMA – Advisory Group on the Pollution Monitoring and Assessment LBS – Advisory Group on Control of Pollution from Land Based Sources IDE – Advisory Group on Information and Data Exchange ICZM – Advisory Group on the Development of Common Methodologies for Integrated Coastal Zone Management CBD – Advisory Group on the Conservation of Biological Diversity FOMLR – Advisory Group on the Environmental Aspects of the Management of Fisheries and other Marine Living Resources

support implementation of the Bucharest Convention and 1993 Odessa Declaration.524 However, the most significant financial support came from the World Bank/GEF Strategic Partnership for Nutrient Reduction in the Danube River Basin and Black Sea project.525 The project had allotted a total of US$95 million, of which US$70 million from the World Bank Fund, to be distributed in three tranches and three phases of the project. The project was divided in three tranche payments. The first tranche in the amount of US$20 million was approved by the GEF Council in 2001 (Phase I 2001–2004), and the second tranche in the amount of US$16 million, in 2004 (Phase II 2004–2008). The final tranche in the amount of US$34 million was not dispersed as the project ended with the completion of Phase II in 2008 as the Black Sea Com- mission was expected to be self-sufficient.526

4.4 BSEC, PABSEC, BSTDB and ICBSS The regional governance for co-operation in the Black Sea extends beyond the Bucharest system for protection of the marine environment. The BSEC was officially established in 1999. However, its origins date back to the 25 June 1992 Istanbul Sum- mit Meeting attended by the Black Sea Member States where the attending States signed the Summit Declaration on the Black Sea Economic Co-operation.527 Originally composed of eleven member States with the subsequent addition of Serbia, BSEC now has twelve members: Russian Federation, Turkey, Ukraine, Bulgaria, Moldova, Georgia, Armenia, Romania, Greece, Albania, Serbia and Azerbaijan. BSEC’s bodies include the Parliamentary Assembly of the Black Sea Economic Co-operation, the

524 GEF/C.16/Inf.9 Progress Report on the Proposed GEF Partnership for Nutrient Reduction in the Danube River Basin and Black Sea (26 Oct. 2000). 525 GEF/C.15/Inf.6 Strategic Partnership for Nutrient Reduction in the Danube River Basin and Black Sea (11 April 2000). 526 World Bank Gef Investment Progress Report, World Bank-Gef Nutrient Reduc- tion Investment Fund: Tranche 3. See also, 2007 Black Sea-TDA, supra note 1, at 8. 527 Valeri Chchelashvali, BSEC: The Way from the Regional Economic Initiative to the Full-Fledged Regional Economic Organization, 1 Turkish Rev. Eurasian Studies, Turkish Rev. Middle East Studies, 5 (OBIV, 2001). 98 Chapter III

Black Sea Trade and Development Bank (BSTDB) and the International Center for Black Sea Studies (ICBSS). The BSEC Charter, which went into effect in 1999, reflects the primarily economic objective of the organization:528 the improvement of the business environment529 and the promotion of economic collaboration530 in the Black Sea region. The areas of co-operation set out in Article 4 of the Charter include energy, environment and transport. A great deal of emphasis is placed on transportation in light of the growing importance of the Black Sea region for international transport. In 2008 the BSEC member States issued a joint declaration expressing their agreement to intensify joint efforts to promote reliable, efficient, environmentally sound, safe, secure, integrated, sustainable transport systems and policies in the BSEC Member States.531 The BSEC has increasingly been giving greater emphasis to addressing protection of the environment. On 20 February 2002 the BSEC and UNEP signed the “Agreement on Co-operation between the Black Sea Economic Co-operation and the United Nations Environmental Programme.” The Agreement established a Working Group on Environmental Protection designed to “promote cooperative activities in the BSEC region in the field of environmental protection . . .” The terms of reference of the Working Group (WG) include promoting the integration of environmental policy into economic and social policies of the BSEC member States as well as to “[s]trengthen co-operation with UNEP and UNEP/MAP, the International Maritime Organization and with other related international organizations, with the Environment General Directorate of the European Commission and other General Directorates of the Commission and with the similar type of regional institutions and organizations to discuss common concerns and to share experiences, good practice and knowledge, and to [c]ontribute for the harmonization of the environmental legislation in the BSEC Member States, based on the best practices and experience existing in the Pan-European region, taking into account the legislative framework of the European Union.”532

528 The Charter of the Organization of the Black Sea Economic Cooperation, 5 June 1998. Available at http://www.bsec-organization.org/documents/LegalDocuments/statutory/charter/ Download/CHARTER%20web%20080630.pdf. 529 Among the principles and objectives enumerated in Article 3, the Charter includes “ . . . improving the business environment and promoting individual and collective initiative of the enterprises and companies directly involved in the process of economic cooperation.” Id. 530 Article 3 (d) specifically provides “to develop economic collaboration in a manner not con- travening the inter-national obligations of the Member States including those deriving from their membership to international organizations or institutions of an integrative or other nature and not preventing the promotion of their relations with third parties;” Id. 531 Joint Declaration on Cooperation in the Sphere of Transport in the BSEC Region, 10 April 2008, Annex V to BS/TM/R(2008)1. Available at http://www.iru.org/cms-filesystem-action?file= webnews2008/IRU-BSEC_JointDeclaration.pdf. 532 Terms of Reference Of The Working Group On Environmental Protection available at http:// www.bsec-organization.org/aoc/environprotect/Pages/termsofref.aspx. The Regional Legal Framework for the Protection and Preservation 99

The Working Group on Environmental Protection later decided to include climate change in its work. It also called for further efforts to strengthen co-operation with other organizations, in particular the BSC, for protection of the Black Sea marine environment.533 The Working Group on Environmental Protection is also collaborating with the U.S. government, who has observer status at the BSEC. The Strategic Action Plan for environmental protection as adopted by BSEC in 2007 lists the following main directions for co-operation:534

• Promoting incorporation of environmentally important approaches in the economic and social development; • Developing a harmonized environmental legislation in the BSEC Member States, based on the best practice and experience existing in the Pan-European region, taking into account the legislative framework of the European Union; • Improving the functioning of the institutional network of BSEC and the coordination with regional organizations, institutions and initiatives, in particular with the Commission on the Protection of the Black Sea against Pollution; • Strengthening co-operation in the Black Sea basin in pollution prevention and biodiversity conservation with particular attention to the areas not covered by the Bucharest Convention; • Promoting the use of economic incentives and tools in the field of the environmental protection in order to ensure funding for projects of mutual interest; • Promoting development of innovative, environmentally friendly and resource saving technologies; • Establishing a regional Clearing House Mechanism among the BSEC Member States.

The Parliamentary Assembly of the Black Sea Economic Co-operation (PABSEC) is the parliamentary dimension of the Black Sea Economic Co-operation composed of seventy-six parliamentarians representing the national parliaments of the twelve BSEC Member States. PABSEC describes its main objective as “to provide assistance to the national parliaments in enacting the laws that are necessary for the implementation of the projects elaborated within the framework of the Organisation of the BSEC and to establish the legislative foundation for successful multilateral economic, political and cultural co-operation in the region.”535 In this sense, PABSEC should serve as an important regional legislation promoting body. PABSEC has prepared a number of reports on various areas concerning BSEC activities including energy and environmental issues. The PABSEC report entitled

533 http://www.bsec-organization.org/aoc/environprotect/Reports/REPORT%20WGEP.pdf. 534 http://www.bsec-organization.org/aoc/environprotect/Pages/Annex%20IV%20-%20 Action%20Plan.pdf. 535 Available at http://www.pabsec.org. 100 Chapter III

“Black Sea Environmental Protection: New Challenges”536 noted the lack of coordination among the many international programs carried out in the region. The Report reached the important conclusion that while there was a high level of country ratification of international conventions for the protection of the environment, the Achilles heel remained ineffective enforcement.537 The report further concluded that the lack of adequate financing of environmental projects remained a problem. Located in Athens, the ICBSS serves as the “think tank” for the BSEC with the aim of fostering international co-operation, and in particular with the EU. Its areas of research include BSEC-EU relations, economic development, international relations, good governance and institutional renewal, energy, and science and technology. The BSTDB was established in Thessalonika to be the financial pillar of the BSEC. It is financed by the member States and has an authorized capital of approximately US$4.5 billion. The funds are to be used for projects and investments that promote economic development and cooperation in the Black Sea BSEC region.538 Environ- mental protection projects are not listed among the sectors that are funded. The shareholding structure of the Bank was as follows: Greece, Russia and Turkey remain the largest shareholders with 16.5 percent stakes each, followed by Romania with fourteen percent, Bulgaria and Ukraine with 13.5 percent each, Azerbaijan with five percent, Albania with two percent, Armenia and Moldova with one percent each, and Georgia with 0.5 percent stake.539

4.5 Black Sea Non-Governmental Organizations (NGOs) The dissolution of the former USSR opened the way for civil society activities in the newly independent states of the former-USSR. Since 1991 there has been a significant growth in the number of Black Sea NGOs dedicated to environmental issues. For example, in 1998 the Black Sea NGO Network was established540 and in 2001 it was given observer status by the Black Sea Commission.541 It currently has over sixty NGO members from the Black Sea countries.542 Its stated mission is “to contribute to the protection and rehabilitation of the Black Sea, including the Azov Sea, and to the sustainable development of the Black Sea countries through increased participation of

536 BSEC Doc. Rec.49/2001. 537 Id., para. 30. 538 For information on projects financed by the BSTD Bank see http://www.bstdb.org/project- center/projects-financed. 539 See 10 Years of BSTDB: Challenges, Achievements and Prospects 5 (2009), available at http://www.bstdb.org/publications/10_years_anniversary.pdf. 540 For general information on Black Sea NGO’s see the Black Sea NGO Network website, available at http://www.bsnn.org/about.html. 541 Observer status was granted at 7th Regular Meeting of the Black Sea Commission, 29–31 May 2001. 542 Black Sea NGO Network website available at http://www.bsnn.org/about.html. The Regional Legal Framework for the Protection and Preservation 101

NGOs, governments, businesses and other institutions, as well as the general public.”543 The objectives of the network include:

• to develop a relevant structure, mechanisms and practice for advocacy and lobbying local, national and international authorities, businesses and other institutions involved in the decision-making process concerning the Black Sea and the sustainable development of the Black Sea region; • to identify and address priority Black Sea environmental issues; and • to raise environmental and civic public awareness, and to increase public participation in the decision-making processes concerning the Black Sea at all levels.

Projects undertaken by the Network have been funded through the European Union Phare,544 TACIS545 and Framework funds,546 GEF, UNDP and other external sources.547 The Black Sea NGO Network also regularly publishes a newsletter that is available on its website.548 The participation of the Network in meetings of the Black Sea Com- mission is without doubt one its important functions. For example, in 2009 during the Black Sea Commission Ministerial Meeting the Network made a statement urging amendment of the Bucharest Convention to allow EU accession. The statement also pointed to the need for improved public participation, access to information, a compliance mechanism and reporting by States.549 The role of Black Sea environmental NGOs has been strengthened through the technical, capacity building and financial support provided by the 15-year long Black Sea Ecosystem Recovery project (BSERP), which was a partnership project between the Black Sea and the Danube River supported by the World Bank-GEF International Waters and implemented by the UNDP and UNEP.550 The project recognized that the involvement of stakeholders and NGOs were key to successfully addressing the Black Sea environmental problems, for raising public awareness, as well as for supporting

543 Id. 544 The Programme of Community Aid to the countries of Central and Eastern Europe (“Phare”) was established by the EU as the main financial instrument for pre-accession purposes. Available at http://europa.eu/legislation_summaries/enlargement/2004_and_2007_enlargement/ e50004_en.htm. 545 Technical Assistance to the Commonwealth of Independent States (TACIS) was a programme established between 2000–2006 by the EU to provide support to the former States of the USSR following dissolution in transition to market economies and democracies. COUNCIL REG. No 99/2000 concerning the provision of assistance to the partner States in Eastern Europe and Central Asia. O.J. L. 12.1 (18.1. 2000). 546 Funding for research is provided by the Community Research and Development Informa- tion Service (CORDIS) under “framework programmes”. 547 For further information see http://www.bsnn.org/projects.html. 548 Available at http://www.bsnn.org/newsletter.html. 549 Id. Issue 45, 2009. 550 GEF/C.15/Inf. 6, World Bank Strategic Partnership for Nutrient Reduction in the Danube River Basin and Black Sea, 11 Apr. 2000. 102 Chapter III improvements in ecosystems and water quality.551 While the principal objective of BSERP was the reduction of nutrient input into the Black Sea from both the Danube River and the Black Sea, its scope of application was much broader and included virtually all activities falling under the umbrella of the Black Sea Bucharest Convention. This included giving financial support to NGOs. For example, the BSERP sought to promote greater co-operation between NGOs and governments as well as to increase the professional capacities and experience of NGOs on issues related to the Black Sea. Support was provided through the Small Grants Program (SGP). During the second phase of the BSERP (2004–2008) the Small Grants Program gave a total of US$302,588 in grants to thirty-five projects in all six of the Black Sea States.552 The topics supported by the SGP included the reduction of pollution, transboundary and/or national problems, public awareness and information and public involvement.553 Noticeably underrepresented in the list of projects supported, however, were activities related to legal issues such as strengthening the implementation of State obligations through the application of different legal tools including litigation, harmonization of national legislation, enhancement of the legal capacity of governmental officials, judges, prosecutors, legislators and lawyers for improved implementation and enforcement of legal obligations for the protection of the Black Sea marine environment. Law-based NGOs in the Black Sea could forge relations with other NGOs in other countries or regions that have a strong legal focus. For example, the International Union for the Conservation of Nature (IUCN), which is the oldest conservation organization, established in 1948, through its Commission on Environmental Law is well situated to work with Black Sea NGOs in this regard.554 Another group of Black Sea NGOs was established under the umbrella of the International Union of Black Sea NGOs established in 2004. It is comprised of NGOS from the twelve member countries of BSEC. However, its mission is broadly focused on social and economic development with an emphasis on the reduction of poverty and promoting sustainable development.555 Furthermore, there is no express reference to protection of the environment in its Charter.

551 Black Sea Ecosystem Recovery Project, Final Technical Report 78 (2004–2008). 552 Id., at 88. 553 Id. 554 For a history of the IUCN Commission on Environmental Law see Barbara J. Lausche, Weaving a Web of Environmental Law – Contributions of the Iucn Environmental Law Programme (2008). 555 International Union of Black Sea Non-Governmental Organizations Charter, 21 July 2008. Available at http://www.bsngon.com/en/aboutus/. The Regional Legal Framework for the Protection and Preservation 103

5. The EU in the Black Sea

The accession of Bulgaria and Romania to the European Union on 1 January 2007 overnight extended the shores of the European Union to the Black Sea. The Euro- pean Union governance structure for the protection of the marine environment builds upon a number of key Directives such as the Water Framework Directive (WFD) adopted in 2000,556 which seeks to establish good water status in the EU by 2015; the Habitats557 and Birds Directives558 which together form the cornerstone for conservation policy in the EU; the Common Fisheries Policy559 and the EU Strategy for Sustainable Development.560 Furthermore, the Erika (1999)561 and Prestige (2002)562 maritime accidents resulted in two of the worst oil spills and marine pollution incidents for European seas and coastal areas. This in turn forced the EU to re-examine and revise its existing maritime and marine environment policies, producing the Erika I, Erika II and Erika III packages.563 Following on the maritime packages, the EC overhauled its marine policy leading to the adoption of the 2008 Marine Strategy Framework Directive (MSFD),564 which was based on the 2005 Marine Thematic Strategy.565 In addition, the EC adopted the Integrated Coastal Zone Management (ICZM) Strategy,566 the

556 Council Directive 2000/60, 2000 O.J. (L 327), 1. 557 Council Directive 92/43 on the conservation of natural habitats and of wild fauna and flora. 1992 O.J. (L 206), 7. 558 Council Directive 79/409 on the conservation of wild birds, 1979 O.J. (L 103), Amended Council Directive 91/244 1991, O.J. (L 115), 8, 5, 41. 559 See Chapter V on fisheries. 560 See A European Union Strategy for Sustainable Development (European Commission, 2002). Available at http://www.clubofrome.at/events/2006/brussels/files/sustainability-strategy- 2001-booklet.pdf. 561 See supra note 91. 562 See supra note 92. 563 Commission communication of 21 March 2000 to the European Parliament and the Council on the safety of the seaborne oil trade, COM (2000) 142 final; Communication from the Commis- sion to the Council and the European Parliament of 6 December 2000 on a second set of Community measures on maritime safety following the sinking of the oil tanker Erika COM(2000) 802 final; and A Communication from the Commission: The third set of Community legislative measures in favor of maritime safety, COM(2005) 585 final. 564 Council Directive 2008/56/EC establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive). Supra note 48. 565 COM (2005) 505 final; See also, Towards a Future Maritime Policy for the Union: A Euro- pean Vision for the Oceans and Seas, COM (2006) 275 Final; An Integrated Maritime Policy for the European Union, COM (2007) 575 final. 566 Report to the European Parliament and the Council: An Evaluation of Integrated Coastal Zone Management (ICZM) In Europe, COM (2007) 308 final. 104 Chapter III

2007 Black Sea Synergy Communication,567 and most recently the 2009 Integrated Maritime Strategy for the Mediterranean Sea.568 The added layer of EU acquis communautaire could either be a harmonizing mechanism or, if not properly coordinated, could create different standards of governance for the protection of the marine environment within the same sea. The role of EU acquis communautaire gained greater prominence with the adoption of the EU Integrated Maritime Policy (IMP) in 2007569 and its environmental pillar, the MSFD.570 The MFSD establishes the objective of achieving good environmental status in all EU marine waters by 2020 at the latest,571 in line with the target date and objective under the 2000 WFD.572 In order to achieve this objective the MSFD requires the development and implementation of marine strategies573 that (1) protect and preserve the marine environment, prevent its deterioration or, where practicable, restore marine ecosystems in areas where they have been adversely affected; (2) phase-out pollution as defined in Article 3(8);574 (3) apply the ecosystem based approach for human activities (the indicator used is to manage human activities so that the “the capacity of the marine environment to absorb the effects of human-induced activities are not compromised”); and (4) integrate environmental concerns into the different policies, agreements and legislative measures which have an impact on the marine environment.575 The MSFD Preamble stresses the importance of co-operation and coordination between EU Member States and third countries sharing transboundary waters.576 The MSFD defines “regional co-operation” to mean “co-operation and coordination of activities between Member States and, whenever possible, third countries sharing the same marine region or subregion, for the purpose of developing and implementing marine strategies.”577 Article 4 identifies the relevant marine regions for the implementation of marine strategies under the Directive to be the Mediterranean Sea, Baltic Sea, Black Sea, North-East Atlantic Ocean, including where applicable their

567 Black Sea Synergy – A New Regional Cooperation Initiative, COM (2007) 160 final. 568 Towards an EU Integrated Maritime Policy and better maritime governance in the Mediter- ranean, COM (2009) 466 final. 569 An Integrated Maritime Policy for the European Union, supra at 563. 570 Supra note 548. 571 Article 1(1), Id., at 24. 572 2000/60/EC of the European Parliament and of the Council of 23 October 2000, (O.J. L 327). 573 Article 1 (2), supra note 548, at 24. 574 According to Article 3(8) ‘pollution’ means the direct or indirect introduction into the marine environment, as a result of human activity, of substances or energy, including human-induced marine underwater noise, which results or is likely to result in deleterious effects such as harm to living resources and marine ecosystems, including loss of biodiversity, hazards to human health, the hinder- ing of marine activities, including fishing, tourism and recreation and other legitimate uses of the sea, impairment of the quality for use of sea water and reduction of amenities or, in general, impairment of the sustainable use of marine goods and services. 575 Article 5, supra note 548, at 26. 576 Id., para. 13, at 20. 577 Article 3(9). Id., at 25. The Regional Legal Framework for the Protection and Preservation 105 respective sub-regional marine areas. Article 5(2) mandates co-operation among the Member States sharing a marine region or sub-region to achieve the objectives of the Directive. The challenge, however, is to secure the co-operation of and coordination with non-Member countries. For this reason, the UN Regional Seas Programme plays a crucial role as the institutional coordinator between the EU Member States and the non-Member countries.578 In 2007 the EU adopted the Black Sea Synergy-a New Regional Co-operation Ini- tiative (BSS) Communication outlining the future EU policy vis a vis the Black Sea region,579 complementary to the existing European Neighborhood Policy (ENP).580 The primary purpose of the BSS is to initiate further co-operation between with EU and the Black Sea region. The BSS outlines a broad policy that includes political objectives and economic strategies; and it also addresses the need for enhanced co-operation in various areas that include the environment, fisheries and maritime activities.581 More importantly, it opens the door for funding of projects and programmes to promote sustainable development and governance of the Black Sea. Following their accession to the EU in 2007 Romania and Bulgaria made a formal proposal to the Black Sea Commission for the EU to accede to the Bucharest Con- vention.582 However, because the Convention does not provide for the accession of regional economic integration organizations it needs to be amended in accordance with Article XX. The issue of EU accession and amendment of the Bucharest Con- vention were formally addressed by the member States of the Black Sea Commission in the 2009 Sofia Declaration adopted during the 2009 Black Sea Commission Min- isterial Meeting held in Sofia.583 In article 8 of the Declaration the six Black Sea States agreed to “initiate a joint process within the Black Sea Commission to elaborate further on the proposal for the amendment of the Convention submitted by Bulgaria and Romania on the accession of regional economic integration organizations with a view to develop a recommendation on such amendments as may be required.”584 Based on this an Ad Hoc Expert Group on Implementation of article 8 of the Sofia Dec- laration was established585 and three meetings were held in Istanbul between 2010

578 Article 6, Id., at 27. 579 Supra note 567. 580 Wider Europe – Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours, COM (2003) 104 final. 581 See also, Report on the first year of implementation of the Black Sea Synergy, COM (2008) 391. 582 Id. 583 Declaration of the Ministers of Environment of the Contracting Parties to the Conven- tion on the Protection of the Black Sea Against Pollution on Strengthening the Cooperation for the Rehabilitation of the Black Sea Environment, Sofia, 17 April 2009. Available at http://www .blacksea-commission.org/_sofia2009.asp. 584 Id. 585 Terms of Reference for the Ad Hoc Expert Group on Implementation of Item 8 of the 2009 Sofia Declaration. (On file with author. Copy kindly provided by Violeta Velikova (former IPU officer) of the Black Sea Commission Permanent Secretariat). 106 Chapter III and 2011.586 However, no agreement was reached on amending the Convention. The key issues discussed centered on technical and substantive issues such as whether in addition to article 28 other articles would also require an amendment, as well what the precise definition of was of a regional economic integration organization,587 and what benefits would accrue with EU accession to the Bucharest Convention. Responding to the latter question Romania enumerated a number of benefits EU accession would bring such as the transfer of EU know-how, possible upgraded technical and financial assistance and promotion of the Bucharest Convention in international fora.588 However, in the final concluding meeting of the ad hoc group Russia, Turkey and Ukraine did not agree on amending the Bucharest Convention to allow EU accession, giving technical and not political reasons.589 Nevertheless, even without the formal accession of the EU to the Bucharest Con- vention the influence of EU policy and legislation on the regional seas of Europe, including the Black Sea and Eurasia is likely to be significant. In 2008 the European Commission adopted the Black Sea Synergy Communication establishing future EU policy in the Black Sea in various areas, including the environment, maritime activities and fisheries. Furthermore, under the European Neighborhood Policy (ENP)590 the EU has established bilateral with Georgia and Ukraine.591 In general, future integration of EU acquis communautaire into the UNEP Regional Seas Programme legal framework is likely, especially following the adoption in 2008 of the MSFD, particularly if studies show improvement in the quality of the environment in regional seas, such as the Baltic and North-East Atlantic where EU member States dominate the coast line.

586 The First Meeting of The Ad Hoc Expert Group on Implementation of Article 8 was held in June 2010, the second on 9 October 2010 and the third and final meeting on 24 January 2011. Con- clusions of the Ad Hoc Expert Group on Item #8 of the Ministerial Declaration, Sofia 2009. (Copy provided by Dr. Violeta Velikova, former PIU Officer for the Black Sea Permanent Secretariat. On file with author). 587 Id. 588 Statement made by Mr. Michail Papadoyannakis. Id. 589 According to the final report of the Ad Hoc Group the Russian Federation abstained from expressing a position until receiving further clarification in regard “to the articles concerning the distribution of authority, rights and obligations between the EU and EU Member States Contract- ing Parties to the Convention.” Turkey’s final position was that the existing text of the Convention only permitted the membership of states and that the common proposal of Bulgaria and Romania is not legally sufficient if regional organizations are to become a member to the Convention. The Ukraine put forth the view that the amendments necessary would require the full revision of the Bucharest Convention and internal documents of the Commission. Supra note 586. 590 COM (2003) 104 Final, Wider Europe – Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours; COM(2004) 373 Final, European Neighbourhood Policy, Strategy Paper; Regulation (EC) No 1638/2006, of the European Parliament and of the Council, of 24 October 2006, laying down general provisions establishing the European Neighbour- hood and Partnership Instrument. 591 SEC (2009) 513/2, Implementation of the European Neighbourhood Policy in 2008, Georgia Progress Report (Commission Staff Working Document); SEC(2009) 515/2, Implementation of the European Neighbourhood Policy in 2008, Ukraine Progress Report (Commission Staff Working Document). The Regional Legal Framework for the Protection and Preservation 107

6. Regional Seas Governance: A Comparative Analysis

6.1 Mediterranean Sea The Mediterranean Sea is important for the Black Sea for a number of reasons, particularly because of the ecological connection through the Turkish Straits system, which serves as a biological corridor between the Black Sea and the Mediterranean Sea.592 The UNEP Programme for the protection of the marine environment of the Mediterranean Sea was the first UNEP Regional Seas Programme.593 The activities of the Mediterranean Sea Programme are implemented through the MAP (Mediter- ranean Action Plan), Phase I of which was adopted in 1975 and Phase II in 1995.594 The legal governance structure for the Mediterranean Sea Programme is based on the traditional system of a framework convention that established the overall objectives, obligations, principles and operational structure, and implementing Pro- tocols based on specific activities or sectors. However, in response to the important evolution of environmental law that took place after the 1992 UNCED, the Mediter- ranean Sea legal framework was amended to incorporate the new principles and approaches, such as the polluter pays principle, the precautionary principle, the use of environmental impact assessment and use of best available techniques (BAT), introduced by the Rio Declaration and Agenda 21, thereby creating a second generation of legal instruments.595 The original Convention for the Protection of the Mediterranean Sea against Pollution that had been adopted in 1976 was amended and renamed in 1995 as the Convention for the Protection of the Marine Environ- ment and the Coastal Region of the Mediterranean (Barcelona Convention).596 The Mediterranean Protocols were also amended: the Dumping Protocol was renamed the Protocol for the Prevention and Elimination of Pollution in the Mediterranean Sea by Dumping from Ships and Aircraft or Incineration at Sea597 and the Protocol in Cases of Emergency, Combating Pollution of the Mediterranean Sea (Prevention and

592 Bayram Öztürk, The Istanbul Strait: A Closing Biological Corridor, in Turkish Straits New Problems New Solutions (1995). 593 For more information see http://www.unep.org/regionalseas/. See also, Vallega, Regional Level Implementation of Chapter 17, supra note 512. 594 For an interesting study conducted on the institutional effectiveness of the MAP, see Sofia Frantzi, What determines the institutional performance of environmental regimes? A case study of the Mediterranean Action Plan, 32 MAR. POL’Y 618–629 (2008); See also, L. Jeftic, The Role of Science in Marine Environmental Protection of Regional Seas and Their Coastal Areas The Experience of the Mediterranean Action Plan, 25 MARINE POLL. BULL. 66–69 (1992). 595 Maria Gavouneli, Mediterranean Challenges: Between Old Problems and New Solutions, 23 INT’L J. MAR. & COASTAL L. 477–497 (2008); Maria Gavouneli, New Forms of Cooperation in the Mediterranean System of Environmental Protection, in The Stockholm Declaration and Law of the Marine Environment 223–236 (Myron H. Nordquist, John Norton Moore & Said Mahmoudi, eds., 2002). 596 10 June 1995. See Vallega, Regional level Implementation of Chapter 17, supra note 512. 597 10 June 1995. 108 Chapter III

Emergency Protocol)598 replaced the Protocol Concerning Co-operation in Combat- ing Pollution of the Mediterranean Sea by Oil and other Harmful Substances in Cases of Emergency (Emergency Protocol). In conjunction with the Emergency Protocol, in 1976 the Regional Oil Combating Centre for the Mediterranean Sea (ROCC) was established to assist the Mediterranean coastal States in the implementation of the Emergency Protocol. It was subsequently renamed as the Regional Marine Pollution Emergency Response Centre for the Mediterranean Sea (REMPEC). It is governed by the Contracting Parties to the Barcelona Convention and administered by the IMO with financing by the Mediterranean Trust Fund. REMPEC serves an important role in the Mediterranean Sea by providing vital emergency response in cases of pollution by oil and other hazardous substances, and also by providing valuable training and education regarding vessel-source pollution.599 One of the innovative legal instruments adopted by the Contracting Parties to the Barcelona Convention was the Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean (SPA and Biodiversity Protocol-or SPAMI), which replaced the Protocol concerning Mediterranean Specially Protected Areas. The new SPAMI Protocol provides for the collaborative establishment of marine protected areas between two or more Contracting Parties, and also created the possibility for the designation of marine protected areas in areas beyond national jurisdiction, with the consensus of the Contracting Parties.600 The Pelagos Sanctuary for Mediterranean Marine Mammals (ex Ligurian Sea sanctuary), established under the SPAMI Protocol in 1999, is the only marine protected area in the Mediterranean Sea to include areas of the high sea.601 Other new and innovative instruments adopted included the Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements of Hazardous Wastes and their Disposal (Izmir Protocol),602 which goes further than the Basel Convention603 by, for example, providing a broader definition of waste, applying to radioactive wastes and requiring prior notice to, and written consent

598 25 Jan. 2002. 599 In light of the disastrous consequences of the Deepwater Horizon oil rig explosion that occurred in the Gulf of Mexico in 2010, the risks associated with accidental and operational oil pollution from off-shore activities in the Black Sea have assumed an added degree of importance. Approximately 4.9 million barrels of crude oil spilled into the Gulf. In June 2010 the US Govern- ment required BP Oil Company to establish a $20 billion compensation fund for the victims of the spill. See Final Report: National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling (2011); available at http://www.oilspillcommission.gov/final-report. 600 Tullio Scovazzi, Marine Protected Areas on the High Seas: Some Legal and Policy Consider- ations, 19 INT’L J. MAR. & COASTAL L. 1–17 (2004). 601 Tullio Scovazzi, The Mediterranean Marine Mammals Sanctuary 16 INT’L J. MAR. & COASTAL L 132–145 (2001). 602 Supra note 90. 603 The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 22 Mar. 1989 1673 U.N.T.S. 57 (1989). The Regional Legal Framework for the Protection and Preservation 109 from coastal transit states.604 Most recently, the Contracting Parties adopted the Protocol for Integrated Coastal Zone Management (ICZM Protocol),605 representing the first ICZM instrument of all the regional seas programmes. Moreover, during the Conference of the Parties held in Almeria, Spain on January 15–18, 2008, the Contracting Parties also adopted a compliance mechanism606 and non-binding Guidelines for the Determination of Liability and Compensation for Damage resulting from Pollution of the Marine Environment in the Mediterranean Sea Area (see Table 9).607 In addition to the above-mentioned legal instruments, the Contracting Parties established the Mediterranean Commission on Sustainable Development (MCSD) in 1996, and in 2005 adopted the Mediterranean Strategy for Sustainable Development (MSSD). The objective of both is to provide the Contracting Parties with guidance for developing national policies to further sustainable development in their respective countries. In 2006, the European Commission recognizing the need to take more aggressive steps to protect and restore the marine environment of the Mediterranean Sea, proposing a long-term environmental strategy that would reduce pollution across the region, promote the sustainable use of the sea and its coastline, encourage co-operation among neighboring countries on environmental issues, assist partner countries in developing effective institutions and policies to protect the environment, and involve NGOs and the public in environmental decisions affecting them.608 A critical component of the strategy is “Horizon 2020” which among other objectives aims to reduce the most significant sources of pollution by the year 2020.609 On 11 September 2009 the European Commission, as part of implementing the 2008 MSFD in a regional sea context, adopted the Communication “Towards an Integrated Maritime Policy for better governance in the Mediterranean Sea”.610 The Mediterranean Sea presents a greater challenge in regional governance in many respects from other regional seas, such as the Baltic and Black Seas. With more than twenty coastal States bordering the sea and the uneven socio-economic levels in the Mediterranean the achievement of coordinated and harmonized standards of protection of the marine environment is problematic. With this in mind, the European Commission has proposed a strategy that seeks to promote enhanced coordination

604 See Tullio Scovazzi, The Transboundary Movement of Hazardous Waste in the Mediterranean Regional Context, 19 UCLA J. ENVTL L. & POL’Y 231 (2000–2001). 605 21 Jan. 2008 (in force 24 March 2011). 606 UNEP(DEPI)/MED IG.17/1018 January 2008, 15th Meeting of the Contracting Parties 15th Ordinary Meeting of the Contracting Parties to the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean and its Protocols Almeria (Spain), 15–18 January 2008, 5. 607 Id., at 6. 608 Communication from the Commission to the Council and the European Parliament Estab- lishing an Environment Strategy for the Mediterranean, COM (2006) 475 final. 609 See also, http://ec.europa.eu/environment/enlarg/med/horizon_2020_en.htm. 610 Towards an Integrated Maritime Policy for better governance in the Mediterranean, COM (2009) 466 final. 110 Chapter III and harmonization in the implementation of international and regional norms at the national levels. The EU adopted the Integrated Maritime Policy for the Mediter- ranean Sea611 as the first step in this process, the objective of which is to improve maritime governance through an integrated approach to different uses of the seas by adopting crosscutting tools of governance. While primarily aimed at Member States, The Integrated Maritime Policy for the Mediterranean Sea also seeks to promote greater co-operation between the EU Members States and non-EU Member States bordering the Mediterranean Sea through a system that will allow for enhanced exchange of information and practices.612 The Communication also identified the absence of a common level of basin-wide ratification and implementation of multilateral agreements as an impediment to regional co-operation and stated its intention to study the existing bottlenecks.613 Key to its strategy for creating an integrated system of maritime governance for the Mediterra- nean Sea, the Communication identified two tools: marine spatial planning and the use of marine strategies. In addition, pointing to the recently adopted EU Strategy for Marine and Maritime Research,614 the Communication underlined the importance of “knowledge-based action,” and that the “development of sustainable maritime economies and effective coastal management requires policies built on foundations of best available scientific knowledge.”615 The Communication concludes by noting the need for “shared and . . . integrated responses” for promoting improved maritime governance in the Mediterranean, highlighting the central role of co-operation.

6.2 The Baltic Sea – HELCOM The Baltic Sea is a semi-enclosed sea surround by nine coastal States.616 In many aspects it resembles the Black Sea. Several of its coastal States were once part of the former-USSR. And with the exception of the Russian Federation, the former USSR bloc countries have become Member States of the EU. Furthermore, similar to the Black Sea, the Baltic Sea has emerged as an important energy transport corridor for Caspian oil.617 However, unlike the Black Sea, the legal regime for the protection of the Baltic Sea was established in the early 1970s, although outside of the

611 Id. 612 Id., at 4. 613 Id., at 7. An extensive report examining the different levels of ratification and implementation of international and regional agreements was commissioned by the EC and published. See Habib Slim & Tullio Scovazzi, Study of the current status of ratification, implementation and compliance with maritime agreements and conventions applicable to the Mediterranean Sea Basin: With a specific focus on the ENPI South Partner Countries, (2009). 614 A European Strategy for Marine and Maritime Research A coherent European Research Area framework in support of a sustainable use of oceans and seas, COM (2008) 534. 615 Id., at 9, fn. 137. 616 Russian Federation, Germany, Denmark, Poland, Lithuania, Latvia, Sweden and Finland. 617 James Wesley Scott, Cross-border Governance in the Baltic Sea Region, 12 REG. & FED. STUD. 135–153 (2002). The Regional Legal Framework for the Protection and Preservation 111

Table 11. Mediterranean Sea Regional Sea Instruments Convention for the Protection and Protocol for the Protection of the Development of the Marine Environment Mediterranean Sea against Pollution Resulting and Coastal Region of the Mediterranean from Exploration and Exploitation of the Sea (Barcelona Convention), (as amended in Continental Shelf and the Seabed and its 1995) (in force as of 12 February 1978) Subsoil (Offshore Protocol), Date adopted: 14 October 1994 (Madrid, Spain) (in force as Protocol Concerning Co-operation in of 24 March 2011) Preventing Pollution from Ships and, in Protocol Concerning Specially Protected Areas Cases of Emergency, Combating Pollution and Biological Diversity in the Mediterranean of the Mediterranean Sea (Prevention and (SPA and Biodiversity Protocol) (in force as of Emergency Protocol) (in force as of 17 March 12 December 1999) 2004) Protocol on the Prevention of Pollution of Protocol on the Protection of the the Mediterranean Sea by Transboundary Mediterranean Sea against Pollution from Movements of Hazardous Wastes and their Land-Based Sources (LBS Protocol) (In force Disposal (Hazardous Wastes Protocol) Date as of 17 June 1983), amended on 7 March adopted: 1 October 1996 (Izmir, Turkey) 1996 but has not yet entered into force (Entered into force as of 19 January 2008)

Protocol for the Prevention and Elimination Protocol on ICZM in the Mediterranean of Pollution of the Mediterranean Sea adopted: 21 January 2008 (in force as of 2011) by Dumping from Ships and Aircraft or Incineration at Sea, as revised in 1995 (in force as of 2004)

UNEP Regional Seas Programme ambit. In this regard, the Baltic Sea has had a longer period of time to adopt measures for the protection of the marine environment as well as to develop a system of governance that is regionally effective and reflective of the development of modern environmental principles. The legal governance structure for the protection of the Baltic Sea consists of the framework Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1992, (Helsinki Convention),618 replacing the original, or first generation 1974 Convention.619 Adopted in the same year as the Bucharest Convention the revised 1992 Helsinki Convention by contrast represents a modern framework instrument incorporating key principles such as the precautionary principle, best environmental practice, pollution pays principle, use of environmental impact assessments, protection of biodiversity and public access to environmental information. In contrast to the Mediterranean Sea, the Baltic Sea legal regime chose to detail specific

618 Convention on the Protection of the Marine Environment of the Baltic Sea Area, 22 Mar. 1974, replaced by the 1992 on the Protection of the Marine Environment of the Baltic Sea Area, that entered into force on 17 January 2000 (“Helsinki Convention”). 619 22 Mar. 1974, 1507 U.N.T.S. 167, 1980, available at http://www.helcom.fi/Convention/en_GB/ convention/. 112 Chapter III

implementation activities through the annexes to the Convention rather than separate protocols. These annexes are:

• Annex I on Harmful substances, which in addition to listing substances deemed to be harmful also provides for a list of banned substances; • Annex II on Criteria for the use of Best Environmental Practice and Best Available Technology, which provides obligatory criteria that the Contracting Parties must apply; • Annex III on Criteria and measures concerning the prevention of pollution from land-based sources; • Annex IV on the Prevention of pollution from ships; • Annex V on Exemptions from the general prohibition of dumping of waste and other matter in the Baltic Sea Area; • Annex VI on Prevention of pollution from offshore activities; and • Annex VII on Response to pollution incidents.

In addition to the Helsinki Convention and its annexes, in 2007 the Parties adopted the ambitious Baltic Sea Action Plan (Baltic-SAP),620 which set out specific measures and actions to be taken for meeting the ultimate objective of good ecological status of the Baltic Sea by 2021.621 The Baltic-SAP focused on four priority issues, targeting eutrophication, hazardous substances, “environmentally friendly” maritime activities and biodiversity. On the question of combating eutrophication, the Baltic Sea-SAP has established the maximum allowable annual level of nutrient pollution for achieving “good environmental status” and accordingly set the corresponding nutrient reduction targets needed to attain this goal in each sub region of the Baltic Sea.622 As for hazardous substances, the Plan adopted the zero-emission objective already established by HELCOM. Under the Baltic-SAP each country will launch national programmes to achieve the objective. Furthermore, the Baltic-BSAP includes a number of “recommendations”, consistent with the operational methodology of HELCOM. The Plan also incorporates other documents that were already part of HELCOM, such as a roadmap for implementation of the IMO adopted 2004 International Convention for Control and Management of Ships’ Ballast Water and

620 HELCOM Baltic Sea Action Plan, adopted at the HELCOM Ministerial Meeting on 15 Nov. 2007 in Krakow, Poland. Available at http://www.helcom.fi/stc/files/BSAP/BSAP_Final.pdf. See also, European Union Strategy for the Baltic Sea Region – ACTION PLAN, COM (2009) 248 final. 621 The World Wildlife Fund (WWF) has expressed criticism that the final text adopted by the Parties fell far short of the ambitious measures foreseen in the initial text. See WWF Position Statement on the Baltic Sea Action Plan, 15 November 2007, available at http://assets.panda .org/downloads/final_wwf_position_on_the_bsap_15_november_2007.pdf. 622 Baltic Sea-SAP, supra note 618, at 8. The Regional Legal Framework for the Protection and Preservation 113

Sediment (BWM),623 and an action plan for the protection of the environment from offshore platforms.624 The EU views the Baltic-SAP as a model for other European Seas.625 With the exception of the Russian Federation, all of the Baltic Sea coastal States are members of the EU. Consequently, the Baltic-BSAP Plan has been significantly influenced by the EU acquis communautaire, including the Wildlife and Bird Directives626 requiring the establishment of a network of marine protected areas of European importance. The Baltic Sea also was used as a pilot study for the 2008 MFSD. Fur- thermore, the high volume of shipping in the Baltic Sea has given shipping activities an important focus in the existing Helsinki programme, and is a priority in the EU Baltic Sea Region Strategy.627

Table 12. Measures Adopted by the Helsinki Programme • Establishing ship emission (SoX) control areas [SECA] under MARPOL Annex VI for the Baltic Sea; • Adopting an Action Plan for the protection of the environment from offshore platforms that includes a zero discharge objective; • Adopting a Ballast Water Management roadmap towards an harmonized implementation and adoption of the 2004 Ballast Water and Sediments Convention (BWM Convention); • Agreement by the Baltic coastal States to ratify the 2004 BWM Convention by 2010–2013 at the latest; • Adopting a decision to create a HELCOM network of ecologically coherent network of MPAs by 2010; • Developing a joint action with the IMO for amendment to Annex VI of MARPOL for standards for nutrients in sewage discharges from ships; • Agreement to be fully prepared for a medium oil spill by 2013 and all hazardous substances by 2016; • Improving the detection system for illegal discharges in the Baltic Sea by satellite and AIS [automatic information system]; • Agreement by the nine Baltic States to harmonize the minimum amount of administrative fines for violation antipollution regulations; • Agreement to develop marine spatial planning principles and tools by 2012; • Introducing economic incentives as a complement to existing regulations to reduce ship-source emissions; and • Application of the no special fee system to ship-generated wastes and marine litter caught in fishing nets in the Baltic sea areas.

623 Id., at 97. 624 Id., at 100. 625 See Baltic Sea Action Plan website section “A pilot area for other European Seas” at http:// www.helcom.fi/BSAP/en_GB/intro/. 626 Council Directive 79/409/EC on the Conservation of Wild Birds, 1979 O.J. (L 103) 1–18, as replaced by Directive 2009/147/EC of the European Parliament and of the Council on the conservation of wild birds, 2010, O.J. (L 20) 7 (Wild Birds Directive); and the Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora, 1992, O.J. (L 206) 7 (Habitats Directive). 627 EU Strategy for the Baltic Sea Region, supra note 620. 114 Chapter III

These measures reflect the dynamic and focused approach of HELCOM towards protection and preservation of the Baltic Sea marine programme. In comparing the HELCOM programme and legal framework with that of the Black Sea programme and legal framework stark gaps appear. Notably missing from the Black Sea regimes is the establishment of a network of marine protected areas, adoption of integrated coastal zone management with particular focus on marine spatial planning,628 an aggressive and progressive shipping programme that incorporates both regulatory measures such as the ship emission control areas under Annex VI of MARPOL 73/78, an incentive-based no-fee system for ship-generated wastes, the goal of zero discharge by off-shore platforms, and a clear plan for ballast water and the introduction of harmful invasive species. The Black Sea countries do not need to replicate all of the measures and initiatives undertaken by the Baltic Sea-HELCOM programme, but certainly can use HELCOM as a model from which measures tailored for the needs of the Black Sea region can be developed.

6.3 The North-East Atlantic Sea – OSPAR The Protection of the North-East Atlantic Sea against Pollution is the oldest of the regional regimes beginning with the 1969 Agreement for Co-operation in Deal- ing with Pollution of the North Sea by Oil and other Hazardous Substances (Bonn Agreement),629 adopted in response to the oil pollution resulting from the historic Torrey Canyon spill.630 The Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft (Oslo Convention) was adopted in 1972 and entered into force in 1974.631 The third in the series of regional agreements for the North- Atlantic Sea addressed land-based pollution with the adoption of the Convention for the Prevention of Marine Pollution from Land-Based Sources (Paris Convention) in June 1974, entering into force in 1978.632 In 1992, the Paris and Oslo Conventions were replaced by the more comprehensive Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention).633 The OSLO regional seas legal framework consists of the OSPAR Convention and five Annexes. The Annexes address pollution from land-based sources,634 dumping

628 Oral, Integrated Coastal Zone Management and Marine Spatial Planning for Hydrocarbon Activities in the Black Sea, supra note 80. 629 9 June 1969. 630 Peter M. Haas, Protecting the Baltic and North Seas, in Institutions for the Earth: Sources of Effective International Environmental Protection 133–181 (Peter M. Haas, Robert O. Keohane & Marc A. Levy eds., 1993). 631 15 Feb. 1972, 932 U.N.T.S. 3. 632 Convention for the Prevention of Marine Pollution from Land-Based Sources, 4 June 1974, in force 6 May 1978; 13 ILM 352 (1974) (“Paris Convention”). 633 22 Sept. 1992, 2354 U.N.T.S. 67. 634 Annex I. The Regional Legal Framework for the Protection and Preservation 115 or incineration,635 offshore sources,636 Protection and Conservation of the Ecosys- tems and Biological Diversity of the Maritime Area,637 and an Annex for “Assessment of the Quality of the Marine Environment.”638 The Convention further includes a catchall provision in Article 7 for “pollution from other sources.” The OSPAR Convention reflects a more ambitious and focused mandate wherein the general obligation of the Parties is three-fold: the first is the obligation to “take all possible steps to prevent and eliminate pollution; second, to “take the necessary measures to protect the maritime area against the adverse effects of human activities so as to safeguard human health and to conserve marine ecosystems;” and third to “restore marine areas which have been adversely affected” when practicable.639 The Parties are further obligated to apply the polluter pays principle, the precautionary principle and to take into account the latest technology, best available techniques and best environmental practices and the use of clean technologies.640 Moreover, in appendices to the Convention detailed criteria have been provided for best available techniques (BAT) and best environmental practice (BEP).641 The Parties are also obligated to apply mandatory criteria in setting priorities and adopting programmes under Annexes I and III,642 and in identifying human activities for Annex V.643 Annex V on “The Protection and Conservation of the Ecosystems and Biological Diversity in the Maritime Area,”644 adopted in 1998, effectively expanded the subject matter of the OSPAR Convention beyond pollution prevention to also incorporate protection of marine biodiversity.645 The OSPAR Convention, reflecting the important principles of the Rio Declaration and Agenda 21, also included a separate provision on access to information wherein the Parties are required to ensure that their national authorities make information available to the public upon request.646 Accordingly, the Parties are obligated to ensure that their national authorities are required to make information available to the public in accordance with in regard to Article 2 of the Convention, subject

635 Annex II. 636 Annex III. 637 Annex V. 638 Annex IV. 639 Article 2 (1)(a). 640 Article 2(2) and (3). 641 Appendice I. 642 Appendice II “Criteria mentioned in Paragraph 2 of Article 1 of Annex I and in Paragraph 2 of Article 2 of Annex III.” 643 Appendice III “Criteria for Identifying Human Activities for the Purpose of Annex V.” 644 Entered into effect 30 Aug. 2000. 645 Rainer Lagoni, Regional Protection of the Marine Environment in the Northeast Atlantic Under the OSPAR Convention of 1992, in The Stockholm Declaration and Law of the Marine Envi- ronment 187, 183–203 (Myron H. Nordquist, John Norton Moore & Said Mahmoudi eds., 2002). 646 Article 9(1). In regard to a judicial interpretation of Article 9 and public access to environmental information see MOX Plant Case, supra note 213. 116 Chapter III to enumerated exceptions. 647 The Convention also includes a provision on “compliance” mandating the Commission to assess the compliance of the States with the Convention based on the periodic reports submitted.648 The OSPAR Conven- tion is the first of the regional sea systems to include a mechanism to ensure that the Convention is fully implemented. Accordingly, in cases of non-compliance by a Party, the Commission has the competence to adopt decisions and require the non- complying Party to take steps to bring about full compliance.649 The OSLO Com- mission, as established under Article 10 of the Convention is responsible for administering the Convention and developing policy and international agreements. And, as previously noted, its competence includes taking decisions to bring about compliance with the Convention, an important competence. Six Committees support the work of the OSPAR Commission:650 the Environmen- tal Assessment and Monitoring Committee (ASMO), the Biodiversity Committee (BDC), the Eutrophication Committee (EUC), the Hazardous Substances Commit- tee (HSC), the Offshore Industry Committee (OIC), and the Radioactive Substances Committee (RSC). In addition, the Group of Jurists and Linguists also provides support to the Commission.651 The OSPAR Commission is the only regional seas system that is supported by an official working group of jurists whose scope of activities has been defined as part of the legal framework of the regional governance regime. Specifically, according to the OSPAR Commission Rules of Procedure, all draft Deci- sions and Recommendations are to be submitted by the OSPAR Secretariat to the Group of Jurists and Linguistics for their advice.652 The implementation of the objectives of the Convention and its Annexes at the regional level is accomplished by the Strategies of the OSPAR Commission for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Strate- gies), revised in 2003 to take into account the EU Marine Strategy.653 There are

647 The exceptions listed in Article 3(a)–(g) are: (a) the confidentiality of the proceedings of public authorities, international relations and national defence; (b) public security; (c) matters which are, or have been, sub judice, or under enquiry (including disciplinary enqui- ries), or which are the subject of preliminary investigation proceedings; (d) commercial and industrial confidentiality, including intellectual property; (e) the confidentiality of personal data and/or files; (f ) material supplied by a third party without that party being under a legal obligation to do so; (g) material, the disclosure of which would make it more likely that the environment to which such material related would be damaged. 648 Article 23(a). 649 Article 23(b). 650 The Committees are established in accordance with the OSPAR Commission Rules of Proce- dure, as revised at OSPAR 2001 (Annex 29), OSPAR 2002 (Annex 10), OSPAR 2005 (Annex 25). 651 Rules of Procedure of the OSPAR Commission, Rule 20 (4), available at www.ospar.org/documents /. . ./05–17e_Rules%20of%20Procedure.doc. 652 Id., Rule 39. 653 Supra note 564. The Regional Legal Framework for the Protection and Preservation 117 six components of the OSPAR Strategies in line with the activities targeted by the Convention and Annexes. These are: (1) biological diversity and ecosystems strategy; (2) eutrophication strategy; (3) hazardous substances strategy; (4) off-shore oil and gas strategy; (5) radioactive strategy; and (6) climate change strategy. Each strategy establishes an objective, a methodology, a timeframe for implementation, and an overall review and evaluation by the Commission. And with the exception of the Strategy on Biological Diversity and Ecosystems, all other strategies have included guiding principles for the States to adopt. Since 1977 the OSPAR Commission has adopted 106 decisions and recommendations.654 The Commission has addressed important issues such as the question of carbon sequestration.655 In addition, OSPAR has adopted emerging tools for implementation of ICZM, notably such as marine spatial planning.

7. Compliance Mechanisms under International Law

The problem of state compliance with international obligations is not unique to the Black Sea region. One of the challenges in international environmental law has been to ensure State compliance with international law obligations.656 In recognition of the importance of this issue UNEP adopted a manual entitled Guidelines on Compliance with and Enforcement of Multilateral Environmental Agreements.657 UNEP defined “compliance” as “the fulfillment by the contracting parties of their obligations under a MEA and any amendments to the MEA.”658 However, with the exception of the compulsory dispute provisions in Part XV of the 1982 LOSC and World Trade Agreement (WTO), absent the consent of the States the avenues for

654 Decisions and recommendations adopted by the former Oslo and Paris Commissions were included. See, OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic Decisions, Recommendations and Other Agreements Applicable within the Framework of the OSPAR Convention (last updated 01/12/08) available at http://www.ospar.org/html_documents/ ospar/html/ospar_decs_recs_other_agreements.pdf. 655 OSPAR Decision 2007/1 to Prohibit the Storage of Carbon Dioxide Streams in the Water Column or on the Sea-bed. As of 15 January 2008 the placement [includes disposal] of carbon dioxide streams in the water column of the seabed is prohibited. And, OSPAR Decision 2007/2 on the Storage of Carbon Dioxide Streams in Geological Formations. Id. 656 On compliance and enforcement in international environmental law see Compliance and Enforcement in Environmental Law, (Leroy Paddock, Du Qun, Louis J. Kotze, David L. Markell, Kenneth J. Markowitz & Durwood Zaelke, eds., 2011); For a detailed review of different compliance mechanisms, see Kiss & Shelton, International Environmental Law, Supra note 53, at 306–316; See also, Svitlana Kravchenko, Strengthening Implementation of MEAs: The Innovative Aar- hus Compliance Mechanism, in Making Law Work Environmental Compliance & Sustainable Development, Vol. 1, 245–254 (Durwood Zaelke, Donald Kaniaru & Eva Kruzikova, eds., 2005); Alexander Timochenko, UNEP Initiatives to Promote Compliance with Multilateral Environment Agreements,” in Economic Globalization and Compliance with International Environmen- tal Agreements (Alexandre Kiss, Dinah Shelton & Kanami Ishibashi, eds., 2003). 657 Manual on Compliance with and Enforcement of Multilateral Environmental Agreements (UNEP, New York, 2006), Annex I. 658 Id., at 662. 118 Chapter III enforcing environmental obligations in international judicial fora are limited.659 In response to this challenge international environmental law has developed “compliance mechanisms” as an innovative modality to promote state compliance with international environmental law obligations. In addition to promoting state compliance with international environmental obligations compliance mechanisms can play an important role in the evaluation and assessment as whether an international environment agreement is producing the desired result. For this reason, compliance mechanisms do not only address the narrow issue of state adherence to obligations under an international environment agreement but also provide valuable information on the ultimate aim sought to be achieved: for example, the reduction of land-based pollution. This in turn requires a means to monitor, report, and assess the results. In this regard, a compliance mechanism serves an important dual function to both increase knowledge of environmental data as well as produce the end result of improvement of the environment. There are different methods to promote compliance such as negative incentives (e.g. sanctions),660 “sunshine” methods (reporting, monitoring or verification measures), and positive incentives.661 Compliance should not be viewed within the narrow strictures of punitive measures- that is the “stick” – but should be placed within a broader framework where the ultimate objective is to promote compliance by employing methods that will facilitate compliance. There is a growing trend to create compliance enhancing mechanisms rather than traditional dispute resolution – sanction alternative.662 One author explained that compliance mechanisms were

659 Part XV, articles 279–299 inclusive of the 1982 LOSC established a unique system of dispute settlement that included compulsory adjudication. All Parties are obligated to seek peaceful settlement of all disputes concerning the interpretation or application of the Convention. However, if the Parties are unable to reach a settlement, with the exception of expressly excluded areas, they are obligated to seek compulsory adjudication. The Parties, when signing, ratifying or acceding to the Convention can select their choice of procedure under Article 286. Otherwise arbitration procedures under Annex VII apply as the default procedure in the case where the Parties have not agreed upon the same procedure or a Party has not made a choice. In general see, Robin R. Churchill & A. Vaughn Lowe A.V., The Law of the Sea, (3rd ed. 1999); Jonathan I. Charney, The Implications of Expanding International Dispute Settlement Systems: the 1982 Convention on the Law of the Sea 90 AM. J. INT’L L. 69–75, (1996); Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea (2005). The 1994 World Trade Organization Agreement introduced a procedure for binding dispute settlement in the ‘Understanding on Rules and Proce- dures Governing the Settlement of Disputes. Sands, supra note 203, at 220–222. 660 For example, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) imposes trade sanctions. See Peter H. Sand, Sanctions in case of non-compliance and state responsibility: pacta sunt servance-or else? in Zaelke et al., Making Law Work Environmen- tal Compliance & Sustainable Development, supra note 646, at 259–271. 661 Edith B. Weiss & Harold K. Jacobson, Strengthening National Compliance with International Environmental Agreements, in Partnerships for Global Ecosystem Management: Science, Economics and Law, (Ismail Serageldin & Joan Martin-Browns eds., 1999) reprinted in Zaelke et al., Making Law Work Environmental Compliance & Sustainable Development, supra note 656, at 176. 662 For a detailed review of different compliance mechanisms see Alexandre Kiss & Dinah supra note 53, at 306–316. The Regional Legal Framework for the Protection and Preservation 119 created to provide positive encouragement to Contracting Parties to comply with their treaty and avoid legalistic approaches offered by traditional dispute settlement procedures under international law.663 Through the early identification of problems and the cause of the non-compliance behavior there may be a greater likelihood to alleviate the problem(s) and secure compliance.664 A number of international environmental agreements have approached the issue of compliance by adopting innovative compliance mechanisms. The UNECE Conven- tion on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention)665 provides an example of an innovative compliance mechanism.666 The Aarhus Convention compliance mechanism established a Compliance Committee composed of eight independent experts.667 These experts do not represent the State Parties, but rather, are expected to represent independent opinions separate from any governmental view. One of its unique and innovative aspects is allowing the public to make submissions concerning potential non-compliance by State Parties.668 Without question granting public access to the complaint process can enhance identification of compliance problems and thereby promote better State compliance with their obligations. The procedure in the Aarhus Convention also allows for public participation in the Com- mittee meetings.669 No other international environmental treaty provides for such direct public participation within its compliance mechanism. Moreover submissions by the public that are found to be admissible become available for public access on the UNECE website. However, the Compliance Committee does not have decision- making competence, which was given exclusively to the Meeting of the Parties (MOP). Compliance mechanisms have also been established in other international conventions such as the Kyoto Protocol670 to the United Nations Framework Convention on Climate Change (UNFCCC),671 and the Montreal Protocol to the Vienna Convention

663 Catherine Redgwell, Non-compliance Procedures and the Climate Change Convention, (Work- ing paper) (On-file with author). 664 Id., at p. 116. 665 Adopted on 25th June 1998, Aarhus, Denmark. (Hereinafter “Aarhus Convention”). 666 DEC.1/7 Review of Compliance, Doc. ECE/MP.PP/2/Add.8 (2 April 2004); Aarhus Conven- tion, Article 15. Id. See also, Svitlana Kravchenko, Strengthening Implementation of MEAs: The Innovative Aarhus Compliance Mechanism, in Zaelke, supra note 656, at 245–254. 667 Kravchenko, Strengthening Implementation of MEAs: The Innovative Aarhus Compliance Mechanism, supra note 656. 668 Para. 18 of DEC. 1/7, supra note 666. 669 Para. 21, Id. 670 11 Dec. 1997, 2303 U.N.T.S. 148, (Entered into force on 16 Feb. 2005). UNFCC Dec. 24/CP.7 Procedures and mechanisms relating to compliance under the Kyoto Protocol. See also, Farhina Yamin & Joanna Depledge, The International Climate Change Regime: A Guide to Rules, Institutions 387–396 (2004); Jutta Brunnée, Enforcement Mechanisms in International Law and International Environmental Law, in Ensuring Compliance with Multilateral Environmen- tal Agreements: A Dialogue Between Practitioners and Academia, 1–23 (Ulrich Beyerlin, Peter-Tobias Stoll & Rüdiger Wolfrum eds., 2006). 671 9 May 1992 1771 U.N.T.S. 107 (entered into force on 21 March 1994). 120 Chapter III for the Protection of the Ozone Layer,672 which was the first international treaty for environmental protection to include an express non-compliance procedure.673 Also, the Executive Body established the Implementation Committee in 1997 to review compliance by Parties with their obligations under the protocols to the Convention on Long-Range Transboundary Air Pollution (LRTAP).674 OSPAR and the Barcelona system for the protection of the Mediterranean Sea are the only two regional sea regimes with a compliance mechanism.675 However, OSPAR is the only one where the Commission can adopt binding decisions and take enforcement actions.676

8. Discussion

With the disappearance of the USSR in 1991 the Black Sea emerged as a sea on the verge of an ecological disaster. On the positive side the international community was quick to respond in taking action to reverse the damage of decades of pollution. However, one of the negative outcomes of this quick action was to create a weak and outdated legal framework for cooperation in the future. Practically speaking from the date the six Black Sea States signed the Bucharest Convention on 21 April 1992677 the Convention was already outdated. The Bucharest Convention and its three implementing protocols were adopted less than two months before the 1992 UNCED, one of the major historical meetings for international environmental governance, and the adoption of the 1992 Rio Declaration and Agenda 21 in June 1992.678 As a result the Black Sea legal regional framework did not include any of the emerging principles and approaches of international environmental law constituting best legal practices that were adopted during this major summit of governments. This weakness in the Bucharest Convention was highlighted in the 2007 Black Sea- TDA, which described it as an outdated “first generation” convention.679 To a limited degree the Odessa Declaration adopted one year later in 1993, followed by the 1996 Black Sea-SAP as amended in 2002,680 and the more recent 2009 Black Sea-SAP,681

672 16 Sept. 1987, 1522 U.N.T.S. 3 (entered into force on 1 Jan. 1989). The Vienna Convention for the Protection of the Ozone Layer, 1513 U.N.T.S. 293 (entered into force 22 Sept. 1988). 673 Sands, Principles of International Environmental Law, supra note 200, at 206. 674 13 Nov. 1979, 1302 U.N.T.S. 217, (Entered into force 16 March 217). ECE/EB.AIR/53 Decision 1997/2, Annex III, p. 28. 675 For the compliance mechanism adopted for the Mediterranean Sea Regional Sea Pro- gramme see supra note 606. 676 Supra note 649. 677 Supra note 32. 678 Id. The Bucharest Convention was adopted on 21 April 1992 and the Stockholm Conference was held between 3–14 June 1992. 679 Supra note 1, at 138. 680 Supra note 51. 681 Supra note 42. The Regional Legal Framework for the Protection and Preservation 121 attempted to fill these legal gaps by adopting some of the key legal principles and approaches. However, the underlying problem with this approach was that these instruments did not create an overarching and crosscutting legal framework, as provided by the Bucharest Convention, that would ensure broad application of these key environmental principles and approaches in future activities and actions. For example, an inherent weakness with Ministerial declarations is that they can be subsequently reversed, diluted or changed. This was what took place with the adoption of less ambitious 2002 Sofia Declaration682 on the earlier and much more comprehensive 1993 Odessa Declaration.683 However, Ministerial declarations and strategic action plans do provide certain advantages over the more cumbersome and time consuming method of formal amendments of legal instruments, such as a convention. One advantage lies in the inherent flexibility of these instruments as they can be easily revised and updated by adopting new declarations or revised without going through lengthy ratification procedures. This flexibility allows the States to incorporate new developments more quickly. Ultimately, pragmatism may outweigh formality as what the desired outcome is for States to actually implement commitments and principles that are adopted. Nonetheless, the preferable method for incorporating the principles of best legal practices is to amend the Bucharest Convention as was done in the case in the Medi- terranean Sea.684 This would bring the Bucharest Convention into alignment with other second-generation conventions based on state-of-the art legal principles. The Bucharest Convention, as the over arching legal instrument, would thereby provide the regional regime with legal coherence and ensure that all actions taken under the Convention and the BSC would be subject to these principles. One purpose for including an amendment provision in an instrument is to allow States to incorporate or reflect subsequent legal or policy developments.685 However, the Black Sea States for political reasons may not welcome an amendment to the Convention, which requires consensus.686 In which case, alternative methods or modalities can be used by the Black Sea States to incorporate into the existing regional legal framework international developments in law and governance approaches for protection of the marine and coastal environment. The “framework convention-implementing protocol” approach was developed in international environment law as a method to provide States with greater flexibility in taking future necessary actions.687 The framework convention, in this case the Bucharest Con- vention, which provides the general obligations, applicable principles and the

682 Supra note 502. 683 Supra note 501. 684 Supra note 595. 685 Sands, supra note 203. 686 Supra note 490. 687 Id., at 138–139. 122 Chapter III institutional structures, can be subsequently supplemented with more detailed issue- specific implementing protocols. The Black Sea States have already made use of this method, most recently with the Biodiversity and Landscape Protocol688 and the revised Land-Based Sources of Pollution Protocol.689 In both cases the instruments incorporated the current principles and approaches of international environmental law that reflect “best legal practices”. The Black Sea States can simply continue using this method when adopting future protocols. The regional approach to protection of the marine environment is a key mechanism for implementing the duty of co-operation and for promoting implementation of global obligations and norm at the regional and local levels. The different regional seas examined provide important models for the Black Sea in creating a modern and dynamic regional governance regime. A number of regional seas programmes, such as the Mediterranean Sea (Barcelona system), the Baltic Sea (HELCOM) and the North Atlantic Sea (OSPAR), which were established before the historic 1992 UNCED demonstrate how a regional approach can be robust, how legal instruments in the regional seas format can adapt to and adopt changes taking place in international law, as well as be innovative. For example, the Mediterranean Sea system, despite being the oldest of the UNEP Regional Seas Programmes, adapted to the developments following the 1992 UNCED by revising the first generation 1976 Barcelona Convention to incorporate the key principles or approaches for international environmental law, in particular, the precautionary principle, the polluter pays principle, the use of environmental impact assessments, public participation and integrated coastal management approach.690 It also adopted a number of protocols, such as the SPAMI, which created the first framework for co-operation among regional sea states in establishing MPAs in areas beyond national jurisdiction.691 In addition, the Medi- terranean Programme revised its original dumping protocol following the adoption of the 1996 London Protocol to the 1972 London Convention.692 The Mediterranean Sea system also adopted a protocol to address the transport of hazardous cargoes with the Izmir Protocol.693 Importantly, the Izmir Protocol demonstrated how the regional approach could go further and be more ambitious than global instruments. Most recently, the Mediterranean countries adopted an innovative and expansive ICZM protocol that for the first time made reference to climate change in a regional seas instrument.694 Likewise, the Baltic Sea, which in many ways parallels the Black Sea both ecologically and politically, has developed a regional regime that is robust, innovative and

688 Supra note 60. 689 Supra note 71. 690 Supra note 90. 691 Id. 692 Id. 693 Id. 694 Id. The Regional Legal Framework for the Protection and Preservation 123 ambitious. In addition to mandating that all Parties apply set criteria for best environmental practices and best available technology, the Baltic Sea Convention has adopted the key principles and approaches of the Rio Declaration and Chapter 17 of Agenda 21.695 It has also addressed the regulation of hazardous substances with an ambitions “zero” discharge goal. The EU has recognized the HELCOM approach as a “best practice” model for regional marine governance by adopting the Baltic-SAP, which has included emerging principles such as marine spatial planning, and its goal of good water status by 2021, as a model for other EU regional seas.696 OSPAR, similar to HELCOM, has made application of BAT and BEP mandatory with the addition of the use of clean technologies. The OSPAR Convention697 includes a duty for national authorities to provide the public with environmental information that can be enforced judicially. A similar provision could be included either by amending the Bucharest Convention or the adoption of a separate instrument, such as a protocol. The most serious gap in the overall regional regime for the Black Sea is the systematic failure of the Black Sea States to meet their obligations under the Black Sea instruments, as shown clearly with the 1996 and 2002 Black Sea- SAPs, and the 1993 Odessa Declaration. The 2008 BSERP Final Report found that the overall implementation and enforcement of obligations under the Bucharest Convention and its associated instruments were weak.698 And while the Bucharest Convention includes a dispute settlement provision that could be used to challenge the Black Sea States for their failure to meet obligations the inherent problem in this approach is that all Black Sea States have failed to meet their commitments. Who then will bring a legal action? Ideally, the public should have some recourse under the Bucharest Convention to challenge the States for their failure to fulfill regional commitments. However, only OSPAR provides public access to justice but only for environmental information.699 A compliance mechanism would serve as an effective method to promote and facilitate the Black Sea States in implementing their commitments. A well-designed compliance mechanism could identify problems early on and provide assistance to States having problems in meeting commitments. Ideally the compliance mechanism should also provide the Black Sea Commission some degree of enforcement competence similar to that accorded to the OSPAR Commission, which allows the Commission to adopt binding enforcement measures, giving a real “bite” to the regional governance system.700 The OSPAR Commission is an active body that issues decisions, binding and non-binding, demonstrating the active involvement of the Commission to respond to the needs of protection of the North-East Atlantic.

695 Supra note 88. 696 Supra note 625. 697 Supra note 89. 698 Supra note 551, at 20. 699 Supra note 646. 700 Id. 124 Chapter III

However, one of the drawbacks for the Black Sea Commission stems from the political sensitivities in the region where good-faith compliance enforcement decisions could be interpreted as being politically motivated. For this reason any compliance mechanism adopted for the Black Sea should include a review committee composed of independent experts and members of the public. Black Sea NGOs can also exert influence on the individual governments of each of the Black Sea States to take the necessary steps to better implement commitments undertaken, and ultimately to fulfill their duty under the Convention to take “all necessary measures consistent with international law and in accordance with the provisions of this Convention to prevent, reduce and control pollution thereof in order to protect and preserve the marine environment of the Black Sea.” The Black Sea NGOs may consider lobbying the Black Sea Commission to obtain legal standing to bring complaints under either the Bucharest Convention directly or within the context of a regional compliance mechanism, such as provided under the Aarhus Convention. There is clearly a need to create a system that will facilitate the Black Sea States to take progressive legal action to enforce commitments for meeting obligations under the Bucharest Convention and other instruments where necessary. One suggestion would be to create a separate Black Sea Legal Advisory Group, such as the Group of Jurists in the OSPAR system701 that would be able to advise the Black Sea Com- mission and make recommendations on legal matters. This could be accomplished through establishing an annual or biannual review mechanism to identify emerging trends and developments in law and governance as well as best practices. Moreover, the legal advisory group could provide advice and recommendations on how to best implement regional obligations at the State level, as well as ensure that there is a link between the legal developments at the local national level with the regional and even international level. The process initiated in 2009 for the accession of the EU to the Bucharest Con- vention should be reinitiated and made a priority for the Black Sea. The EU has developed an important body of environmental directives and policies, particularly in regard to the marine environment under the MSFD702 and the WFD.703 At present these two directives have direct implementation in the western Black Sea through Bulgaria and Romania. These two Directives represent best practices for protection of the marine environment and should be incorporated directly into the Black Sea regional programme. Additional benefits of full EU participation in the Black Sea Bucharest Convention included access to financial resources, technical know-how as well as experience in environmental governance. Furthermore, the EU may be in the best position to make use of the dispute settlement provision in the Bucharest

701 Supra note 652. 702 Supra note 48. 703 Supra note 47. The Regional Legal Framework for the Protection and Preservation 125

Convention and challenge the Black Sea States when they are in violation of their regional obligations. In light of the opposition to EU accession by Turkey, Ukraine and Russia, NGOs may be best situated to lobby for the EU. While making a statement at the Black Sea Commission was important it needs to be followed up with more substantive initiatives, such as direct lobbying to the governments. Ideally the Bucharest Convention should be amended to allow for EU accession, but if this is not accomplished there alternative ways are available for strengthening the EU-Black Sea regional environmental co-operation. The Black Sea Synergy Communication704 committed the EU both politically and financially to support activities in the Black Sea that include the environmental protection and fisheries. The EU can provide the Black Sea States with access to both financial resources as well as valuable know-how. One recommendation would be for the EU and the Black Sea to develop joint initiatives on projects aimed at strengthening the Black Sea regional legal framework including implementation and enforcement issues. The EU, especially following a series of damaging marine pollution accidents, has gained significant experience in developing legal and policy approaches for its environmental and marine aquis communautaire. A Black Sea Legal Advisory Group could be the focal point for developing EU-Black Sea legal or governance projects. In addition, the Black Sea Commission and the EU could develop institutional joint initiatives to support activities between learning institutions and NGOs in the Black Sea and EU. In particular there is a need for strengthened legal capacity in the Black Sea. Education has an important role to play in building national legal capacity for maintaining a sustainable legal system for the protection of the Black Sea marine environment. Education and capacity building, especially law and poli- cymaking, were areas that were not adequately addressed in the Black Sea Synergy Communication.705

704 Supra note 567. 705 Id.

Chapter IV

Marine Biodiversity in the Black Sea

1. Introduction

The Black Sea, once characterized by its highly productive marine life and rich biodiversity, witnessed a dramatic decline of its marine living resources, biodiversity and habitats during the last three decades of the twentieth century.706 The causes for the loss of marine living resources and biodiversity have been attributed to a combination of unsustainable fishing and hunting practices, land-based and vessel source pollution, the introduction of harmful alien species, and unsustainable coastal development. Despite the alarming loss of biodiversity in the Black Sea, especially since the 1980s, the process of developing and implementing a regional legal framework for the protection of biological diversity in the Black Sea has been slow.707 The 1996 Black Sea-SAP called for the adoption of a protocol for the protection of biodiversity. A protocol was eventually drafted in 2002 and entered into force nearly a decade later on June 20, 2011, marking an important step towards addressing the critical need for a robust and effective legal instrument to protect and conserve Black Sea biodiversity. Many of the components of what should be included in a robust biodiversity regime can be found in the existing obligations, principles and standards of the international biodiversity framework as developed by the first generation international conservation agreements from the 1970s, the 1982 LOSC and the 1992 CBD, as well as the influential impact of the 1972 Stockholm Conference and the 1992 UNCED. The Bucharest system for the protection of the Black Sea marine environment, adopted prior to the 1992 UNCED and adoption of the Rio Declaration, Agenda 21, and the 1992 Convention on Biodiversity, did not include key biodiversity principles developed in the UNCED process. Instead, the Bucharest Convention focused on pollution prevention, making no reference to biodiversity.708 In place of revising the Bucharest Convention to reflect the developments in international environmental

706 See Bayram Özturk & Ayaka Özturk, Biodiversity in the Black Sea: Threats and the Future, in Mankind and the Oceans 155 (Miyazaki Nobuyuki & Adeel Zafar et al. eds., 2005). 707 According to the finding of the 2007 Black Sea-TDA there are signs of ecological recovery, however, this is attributed to factors such as the closing of polluting factories after the dissolution of the former-USSR. Supra note 1, at 445. 708 The Black Sea Commission did establish an Advisory Group on the Conservation of Biodi- versity composed of the national focal points nominated by each Black Sea State. The focal points have the responsibility of providing the Commission with information on the conservation of biodiversity in their respective country.

Nilufer Oral, Regional Co-operation and Protection of the Marine Environment Under International Law, pp. 127–165. ©2013 Koninklijke Brill NV, The Netherlands. ISBN 978-90-04-25085-7. 128 Chapter IV the Black Sea States opted for Ministerial Declarations of limited legal impact. Moreover, what was needed was a legally binding instrument incorporating current international norms and methodology for the protection of marine biodiversity in the Black Sea. Unfortunately, it took another ten years before the Black Sea States in 2002 adopted the Black Sea Biodiversity and Landscape Protocol.709 Benefitting from a twenty-year gap, the Black Sea Biodiversity and Landscape Protocol and its implementing Strategic Action Plan incorporated the key principles of the 1992 UNCED and its progeny, and in addition incorporated principles and approaches from the UNEP Regional Seas protocols and from European instruments. The Black Sea Biodiversity and Landscape Protocol incorporates the central obligations and principles for the protection of biodiversity. This chapter will examine the existing international legal framework for the protection of marine biodiversity at the global and regional levels. The first level of inquiry will examine and assess the implementation by the Black Sea States of the early international conservation agreements. The second level will analyze the global framework and assess how the Black Sea legal regime for the protection of marine biodiversity has incorporated the relevant international obligations and principles. Thirdly, the Chapter will examine the role of EU acquis communtaire, especially in light of Bulgaria and Romania’s accession to the EU in 2007, and lastly engage in a comparative analysis with other regional seas protocols that provide benchmarks of best legal practices for the protection of marine biodiversity.

2. The International Legal Framework for Protection of Biodiversity

2.1 International Conservation Agreements The 1970s produced several important international conservation710 agreements (ICA).711 The 1971 Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar),712 the 1972 Convention for the Protection of the World

709 Black Sea Biodiversity and Landscape Protocol, 14 June 2002, (entered into force June 20, 2011) The Protocol was been ratified by Turkey (12 Aug. 2004), Bulgaria (13 Oct. 2004); Ukraine (22 Feb. 2007) and Georgia (22 Sept. 2009) and Ukraine (21 Apr. 2011). 710 For an interesting discussion on the use of the terms ‘protection’, ‘preservation’ and ‘conservation’ in the early conservation agreements see P. Van Heijnsbergen, International Legal Protection of Wild Fauna and Flora, 43–48 (1997). For purposes of this thesis, the term “conservation” is used to encompass protection, preservation and conservation of living resources. 711 In general see, Kiss & Shelton, International Environmental Law, supra note 53 at 351–441, Robin Churchill, The Contribution of Existing Agreements for the Conservation of Terrestrial Species and Habitats to the Maintenance of Biodiversity, in International Law and the Conserva- tion of Biological Diversity, 71–89 (Michael Bowman & Catherine Redgwell, eds. 1996). 712 Convention on Wetlands of International Importance Especially as Waterfowl Habitat, 2 Feb. 1972, 995 U.N.T.S. 245; Protocol, Dec. 3, 1982, reprinted in 22 ILM 698 (1982). (Hereinafter “Ramsar Convention”). Marine Biodiversity in the Black Sea 129

Cultural and Natural Heritage (World Heritage),713 and the 1979 Convention on the Conservation of Migratory Species (Bonn Convention or CMS)714 adopted conservation measures to protect species or habitats. The 1973 Convention on International Trade in Endangered Species and Wild Fauna and Flora (CITES) was the only conservation agreement based on trade regulation.715 A key catalyst for these ICAs was the seminal 1972 Stockholm Conference and its Plan of Action, which included inter alia a specific recommendation for adoption of a convention protecting migratory species716 and ecosystems of international significance.717 These ICAs provided individual building blocks and a systematic approach for establishing a foundation for the protection of biodiversity, although the term was not used at the time.718 One underlying theme in these agreements is the notion of a ‘common heritage’ in need of protection. This theme resonates throughout the ICAs underscoring the need for close international co-operation. The 1971 Ramsar Convention, one of the early conservation ICAs, required Parties to designate at least one wetland of international importance719 and to promote their conservation by establishing nature reserves.720 The 1972 World Heritage Con- vention adopted a broad approach recognizing the need for international protection of cultural721 resources and natural heritage areas722 of outstanding universal value. In addition to the protection of human-made structures, the World Heritage Con- vention also included as part of its objective the protection of threatened species of

713 Convention for the Protection of the World Cultural and Natural Heritage, 16 Nov. 1972, 11 ILM 1358 (1972). 714 Convention on the Conservation of Migratory Species, 23 June 1979, 19 ILM 15 (1980). 715 Convention on International Trade in Endangered Species and Wild Fauna and Flora, 3 Mar. 1972, 993 UNTS 243; Protocol (Bonn), 27 June 1979; Protocol (Gabonne), 30 Apr. 1983, not entered into force. In general see Van Heijnbergen, supra note 710; Rosalind Reeve, Policing Interna- tional Trade in Endangered Species: The Cites Treaty and Compliance (2002). 716 Action Plan for the Human Environment, See Recommendation 32: “It is recommended that Governments give attention to the need to enact international conventions and treaties to protect species inhabiting international waters or those, which migrate from one country to another.” Available at http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=97&Article ID=1506&l=en. 717 Id. Recommendation 38: “It is recommended that Governments take steps to set aside areas representing ecosystems of international significance for protection under international agreements.” 718 In general see, Birnie, Boyle & Redgwell, supra note 410, at 650–701; Kiss & Shelton, supra note 53. 719 Supra note 712, Article 2(4). 720 Id., Article 4(1). 721 Id., Article 1 includes in the category of “cultural heritage” monuments, groups of buildings and sites that are either man-made or the combined work of humans and nature. 722 Id., Article 2 includes in the category of “natural heritage” natural features consisting of physical and biological formations or groups of formations, geological and physiographical formations that are precisely delineated areas which constitute habitat of threatened species or animals or plant, and natural sites ore precisely delineated area of outstanding universal value from the point of view of science, conservation or natural beauty. 130 Chapter IV animals and plants.723 Each Party State has a duty to identify, conserve, protect and transmit to present and future generations, natural and cultural heritage,724 which is the only reference to the inter-generational principle in early ICAs. The 1973 CITES is the only international convention for the protection of biodiversity that focuses on the commercial aspects of conservation. CITES does this through controlling international trade of species that have been listed as either threatened with extinction725 or which, absent regulation, could become threatened with extinction.726 In 1992 the Conference of the Parties adopted Resolution 9.24 COP12 that called for the use of “precautionary measures” in setting standards.727 The 1979 Bonn Convention was one of the important products of the 1972 Stock- holm Conference. In particular Recommendation 32 of the Stockholm Action Plan encouraged Governments to give attention to migratory species and to consider developing a “broad based convention.”728 The Bonn Convention was based on a transboundary approach requiring the close co-operation of States sharing a common migratory range (“range States”) for identified species. In addition to listing migratory species that are endangered or at risk of becoming endangered, the Convention provides that the Range State Parties should conclude international AGREEMENTS for specific listed migratory species.729 The 1979 Bonn Convention adopts a rating system that designates state actions to conserve species as either “favorable” or “unfavorable.” Importantly, the Convention provides for a set of indicators to gauge whether the conservation status of a listed species is “favorable”730 or

723 Supra note 712. 724 Id., Article 4. The Convention, however, was careful to ensure the sovereignty of each State in whose territory would heritage sites were located. See Article 6(1). 725 All species threatened with extinction that are or may be affected by trade are to be listed in Annex I of CITES. 726 Article II(2). 727 COP 12 Resolution Conf. 9.24 (Rev. CoP15), Criteria for amendment of Appendices I and I. Available at http://www.cites.org/eng/res/all/09/E09–24R15.pdf. 728 See Richard Caddell, International Law and the Protection of Migratory Wildlife: An Appraisal of Twenty-Five Years of the Bonn Convention, 16 COLO. J. INT’L ENVTL. L. & POL’Y 113, 114 (2005). See also Margi Priduea, Discussion of a Regional Agreement for Small Cetacean Conservation in the Indian Ocean, 32 CAL. W. INT’L L.J. 211 (2002). 729 Article IV(3) of the 1979 CMS. See Caddell, International Law and the Protection of Migratory Wildlife, Id. See also, Sands, Principles of International Environmental Law, supra note 203. These AGREEMENTS are as follows: Agreement on the Conservation of Populations of European Bats (EUROBATS); Agreement on the Conservation of Cetaceans in the Black Sea, Mediterranean Sea and contiguous Atlantic area (ACCOBAMS); Agreement on the Conservation of Small Ceta- ceans of the Baltic and North Seas (ASCOBANS); Agreement on the Conservation of Seals in the Wadden Sea (AEWA); Agreement on the Conservation of Albatrosses and Petrels (ACAP); Agree- ment on the Conservation of Gorillas and Their Habitats (Gorilla AGREEMENT). 730 Article 1(c) lists the indicators for favorable status as (1) the population is maintaining itself on a long-term basis as a viable part of its ecosystem; (2) the range of the species is not being reduced and is not likely to be reduced in the long-term; (3) there is in the foreseeable future sufficient habitat to maintain the population of the migratory species on a long-term basis; (4) the distribution and abundance of the migratory species approach historic coverage and levels to the Marine Biodiversity in the Black Sea 131

“unfavorable.”731 This necessarily requires a mechanism of surveillance and monitoring of migratory species to assess the status of these indicators and to take the appropriate measures. However, as noted by Churchill, one of the weaknesses in these early ICAs was the lack of proper machinery for implementation and compliance, such as failure of States to report violations.732 Given the migratory nature of these species close co-operation among the range States is essential and an obligation under the Convention. Of particular relevance to the Black Sea is the 1996 Agreement on the Conser- vation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS),733 which directly applies to the conservation of Black Sea cetaceans. ACCOBAMS was adopted subsequent to a similar cetacean AGREEMENT, the Agreement for the Conservation of Small Cetaceans of the Baltic and North Seas (ASCOBANS), which was limited to small cetaceans.734 Both were adopted in response to the need to establish a special protection of cetaceans whose populations were under increasing threat. The geographic scope of ACCOBAMS, referred to as the “Agreement area” is broad and includes all the maritime waters of the Black Sea and the Mediterranean and their gulfs and seas, and the internal waters connected to or interconnecting these maritime waters, and of the Atlantic area contiguous to the Mediterranean Sea west of the Straits of Gibraltar.735 The purpose of ACCOBAMS is for the Parties to take co-ordinated measures to maintain a favorable status of conservation for cetaceans. ACCOBAMS further requires that in order for this purpose to be achieved the Par- ties are to co-operate to create and maintain a network of specially protected areas.736 ACCOBAMS has its own Secretariat located in Monaco. In 2001 the Parties agreed to undertake eighteen priority actions between 2002–2006, which included the development of a conservation plan for Black Sea cetaceans.737 One of the reasons for creating a list of priorities was to facilitate extent that potentially suitable ecosystems exist and to the extent consistent with wise wildlife management. 731 According to Article 1 (d) unfavorable conservation status is when the conditions for favorable status are not met. See also, Van Heijnsbergen supra note 707, at 96. 732 Bowman & Redgwell, supra note 711, at 79. 733 24 Nov. 1996, 36 ILM 777 (1996). See William C.G. Burns, The Agreement on Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS): A Regional Response to Threats Facing Cetaceans, J. INT’L WILDLIFE L. & POL’Y 113–133 (1998); Robin Churchill, Sustaining Small Cetaceans: A Preliminary Evaluation of the Ascobams and Acco- bams Agreements in International Law and Sustainable Development Past Achievements and Future Challenges 225 (Alan Boyle & David Freestone, eds. 1999). 734 29 March 1992, 1772 U.N.T.S 217, entered into force 29 March 1994. See Rachel Adam, The Japanese Dolphin Hunts: In Quest of International Legal Protection for Small Cetaceans, 14 ANIMAL L. 133, 162–63 (2008). 735 Article 1(a). Supra note 733. 736 Id. 737 Supra note 730. ACCOBAMS Doc. Res. 1.9 International Implementation Priorities for 2002–2006. 132 Chapter IV obtaining funding from international donors. The lack of funding was an impediment for the Black Sea Commission in undertaking the preliminary cetacean surveys necessary to establish a network of MPAs.738 Finally, in 2007 the Parties adopted the Conservation Plan for Black Sea cetaceans.739 In this collective effort the Parties to ACCOBAMS also identified areas of special importance for cetaceans in the Black Sea highlighting those areas in need of a network of marine protected areas.740 The areas identified in the Black Sea were the Kerch Strait for the bottlenose dolphin and the harbour porpoise; Cape Sarych to Cape Khersones for bottlenose and common dolphins and the harbour porpoise; and Cape Anaklia to Sarp for the common dolphin and the harbour porpoise.741 An important benefit of marine protected areas, which are well regulated, monitored and enforced, is reduced cetacean mortality from by-catch related to fishing activities, the principle threat to cetaceans from human activities in the Black Sea.742 There is also close co-operation between ACCOBAMS and the Regional Activ- ity Center for Specially Protected Areas (RAC-SPA) of the Barcelona Convention demonstrating inter-regime co-operation.743 Close cooperation between these two institutions is important given the ecological connection between the Black Sea and the Mediterranean Sea through the Turkish Straits.

Table 13. Ratification of International Conservation Agreements by Black Sea States 1971 Ramsar 1972 WHC 1973 CITES 1979 BONN ACCOBAMS BUL X X X X X GEO X X X X X ROM X X X X X RF X X X – – TR X X X – – UKR X X X X X

738 Id. 739 Supra note 737. ACCOBAMS Doc. Res. 3.11 (2006). 740 Id. Article II. 1. ACCOBAMS was also recognized as an appropriate tool to promote meeting the objective of the 1992 CBD to reduce the loss of biodiversity by 2010 and to meet the target of developing a network of representative Marine Protected Areas by 2012. See ACCOBAMS Res. 3.22 Marine Protected Area for Cetaceans. Annex I to the resolution provides the ‘Criteria for the Selection of Protected Areas’ and Annex I I includes detailed Guidelines for the ‘Establishment and Management of Marine Protected Areas for Cetaceans’. Available at http://www.accobams. org/images/stories/MOP/MOP_resolutions/res_mop3.22%20mpas.pdf. 741 Id. 742 Guiseppe Notarbartolo Di Sciara & Alexei Birkun, Jr. Conserving Whales, Dolphins and Porpoises in the Mediterranean and Black Seas 108 (ACCOBAMS Status report 2010). 743 For example, the Guidelines of the Establishment and Management of Marine Protected Areas were developed jointly between the Secretariat of ACCOBAMS and the RAC-SPA. Marine Biodiversity in the Black Sea 133

2.2 Black Sea Implementation of ICAs As will be discussed in greater detail below, the participation of Black Sea States in ICAs is strong. All six Black Sea States are Parties to four conservation ICAs (see Table 1). Russia is the only Black Sea State that is not a Party to ACCOBAMS. But this does not necessarily constitute an impediment for taking the necessary actions at the regional level. The Black Sea, as a catchment basin for multiple rivers, has an extensive wetland ecosystem, making the application of the Ramsar Convention of particular importance. In 1993 a group of international wetland experts issued a Declaration bringing attention to the “massive loss and degradation” of Black Sea wetlands with “disastrous economic, social and ecological consequences.”744 At the time that the Black Sea Wetland Declaration was adopted there was no complete inventory of existing wetlands and there was no action plan in place to protect and preserve them. The 1996 Black Sea-SAP required that Black Sea coastal States to designate new conservation areas, particularly for wetlands.745 Since the 1993 Black Sea Wetland Declaration important advancements have been made in designating new wetlands to be conserved along the Black Sea coast. For example, Ukraine increased its number of Ramsar sites from 16 in 1998 to 33 by 2004. The total area of Black Sea State wetlands of international importance that are designated as RAMSAR sites, total is 2,155,190 hectares.746

Table 14. Black Sea Ramsar Convention Status747 Country Date of entry into No. of Ramsar Total area force Wetlands Bulgaria 24.01.76 11 35,381 Georgia 07.06.97 2 34,223 Romania 21.09.91 19 1,156,448 Russian Federation 11.02.77 35 10,323,767 Turkey 13.11.94 14 184,487 Ukraine 01.12.91 33 744,651

744 Black Sea Wetlands Declaration, 22 Oct. 1993. Text reprinted in Conservation of Black Sea Wetlands A Review and Preliminary Action Plan (A. Wilson & M. Moser, eds., 1994). 745 Paragraph 64 provides: “In marine and coastal areas, and in particular in wetlands, new conservation areas shall be designated and the protection of existing conservation areas enhanced. In drafting their National Biological Diversity Strategies, Black Sea states shall take into consideration the integrity of the Black Sea system, by, for example, designating conservation areas which are of regional significance”. 746 As of 2013. See Ramsar official website available at http://www.ramsar.org. 747 The Ramsar sites listed include non-Black Sea coastal wetlands. Taken from Ramsar official website. Id. 134 Chapter IV

In regard to the application of the CITES Convention in the Black Sea problems arose when Georgia unsuccessfully attempted to have the Black Sea bottlenose dolphin (Tursiops truncates ponticus) transferred from Appendix II to Appendix I of CITES. The resolution failed to obtain the required two-thirds vote of the Parties.748 Nevertheless, somewhat of a compromise was reached with an agreement to prohibit the export of the bottlenose dolphin for commercial purposes.749 Russia has not signed the 1979 Bonn Convention or ACCOBAMS.750 The latter is of particular importance for the protection of cetaceans in the Black Sea where “areas of special importance for cetaceans” have been identified751 (See Map 2).752 As highlighted earlier, the principle objective of ACCOBAMS is to provide the necessary regional co-operation and coordination to establish marine protected areas where necessary. An important step taken towards meeting this objective in the Black Sea was undertaken by the signing of the 2002 Mem- orandum of Understanding between the Black Sea Commission Secretariat and the ACCOBAMS Secretariat,753 and the preparation of the Conservation Plan for Black Sea Cetaceans under the auspices of these two Secretariats, and adopted by the Parties in 2007.754 This partnership between the Black Sea Commission and ACCOBAMS will extend ACCOBAMS de facto into the Black Sea, regardless of Russia being a non-Party to the AGREEMENT. The Black Sea Permanent Secretariat was designated as the ACCOBAMS sub-regional coordination unit for the Black Sea, which includes facilitating the implementation of the ACCOBAMS Conservation Plan.755

748 See, Twelfth meeting of the Conference of the Parties, held in Santiago (Chile), 3–15 Novem- ber 2002, COP12 Prop. 12.3, available at http://www.cites.org/eng/cop/12/prop/E12-P03.pdf. 749 Appendix II of CITES includes in brackets the following restriction on he trade of the Black Sea Bottlenose dolphin: “(Except the species included in Appendix I. A zero annual export quota has been established for live specimens from the Black Sea population of Tursiops truncatus removed from the wild and traded for primarily commercial purposes).” 750 The ACCOBAMS Agreement was adopted pursuant to Article IV(4) of the 1979 Bonn Con- vention CMS, which encourages parties to “take action with a view to concluding agreements for any population or any geographically separate part of the population of any species or lower taxon of wild animals, members of which periodically cross one or more national jurisdiction boundaries.” See Michael Bowman, Peter Davies & Catherine Redgwell, Lysters’s International Wildlife Law 194–196, (2d ed. 2010). 751 Marine Protected Areas, ACCOBAMSMOP3/2007/Doc43, Res. 3.22 (2007). 752 Id., Maps of Proposed Protected Areas, Annex 3. 753 Memorandum of Cooperation between the Permanent Secretariat of the Agreement on Conservation of Cetaceans of the Black Sea, the Mediterranean Sea and the contiguous Atlantic area and the Permanent Secretariat of the Commission for the Protection of the Black Sea Against Pollution concerning the Sub-regional Coordinating Unit for the Black Sea, 14 June 2002. 754 See ACCOBAMSMOP3/2007/Doc32 and ACCOBAMS-MOP3/2007/Doc19, (2007). The plan includes 18 concrete actions and 57 sub-actions aimed at promoting cooperation among the Black Sea States. The plan aims inter alia to reduce cetacean by-catch. 755 Id. Marine Biodiversity in the Black Sea 135

Furthermore, an IUCN Red List assessment, completed in 2008, included three Black Sea subspecies of cetaceans: the bottle-nose dolphin (Tursiops truncates)756 and the harbor porpoise (Phocoena phocoena)757 were both listed as endangered, whereas the common short-beak dolphin (Delphinus delphis) was listed in the category of “vulnerable” species.758 In addition, the Fourth Meeting of the Parties of ACCOBAMS adopted a resolution urging transboundary co-operation among the Black Sea countries to establish protected areas devoted to cetaceans through the Black Sea Biodiversity and Landscape Protocol.759 These actions represent important linkages between related instruments with a common objective of protecting cetaceans by establishing a network of marine protected areas. The World Heritage Convention is one other ICA that could be added to this linkage between related instruments and institutions in relation to the establishing protected areas. At this date there are no listed marine sites for the Black Sea under the World Heritage Convention. However, given the unique attributes of the Black Sea and its fragile ecosystem consideration could be given to proposing that parts of the Black Sea, such as the Phyllophora Field, already designated as a marine protected area in 2008, be included in the WHC List.

Source: ACCOBAMS Secretariat760 Map 2. Existing and Proposed Marine Protected Areas for Cetaceans in the Black Sea and the Mediterranean

756 Available at http://www.iucnredlist.org/apps/redlist/details/133714/0. 757 Available at http://www.iucnredlist.org/apps/redlist/details/17030/0. 758 Available at http://www.iucnredlist.org/apps/redlist/details/133729/0. 759 Marine Protected Areas of Importance for Cetacean Conservation, ACCOBAMS-MOP4/2010/ Doc 10 Res. 4.15 (09/08/2010). 760 Available at http://www.accobams.org/images/stories/Map/mpas%20final%20novem- bre%202010%20copie.jpg. ACCOBAMS-MOP4/2010/Res 4.15. The designations employed and the presentation of the information on this document do not imply the expression of any opinion whatsoever on the part of ACCOBAMS concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. 136 Chapter IV

2.3 1982 United Nations Law of the Sea Convention The ICAs were important in creating a set of obligations and methodologies for the conservation of specific species and habitat. Despite this fact, no clear set of international law principles that could provide a framework for conservation or protection of biological diversity had yet emerged. The first important global framework to provide for a comprehensive global instrument for the protection of the marine environment was the 1982 LOSC761 and Part XII in particular.762 While it was negotiated and adopted a decade before the 1992 CBD and UNCED, the 1982 LOSC still remains as the only global instrument establishing an unqualified binding legal obligation for States to protect and preserve the marine environment.763 With the exception of Turkey, the other five Black Sea coastal States are Parties to the LOSC. Consequently, the LOSC has direct application to the Black Sea, including those obligations that constitute customary international law, in particular the duty to protect the marine environment.764 Consequently, even though not a Party to the 1982 LOSC, Turkey would be obligated to protect the marine environment under customary international law. Likewise, the Bucharest Convention, echoing article 235 of the 1982 LOSC,765 also imposes a duty on the Contracting Parties to fulfill their international obligations to protect and preserve the marine

761 The ninth Conference of the Parties to the CBD referred to and reiterated the language of UNGA 60/30 which inter alia reaffirmed that the 1982 LOSC sets out the legal framework within which all activities in the oceans and seas must be carried out . . . Marine and coastal biodiversity UNEP/CBD/COP/DEC/IX/20 Dec. IX/20. (9 October 2008). 762 See McConnell & Gold, supra note 401; Boyle, Marine Pollution under the Law of the Sea Con- vention,” Supra note 403; Christopher C. Joyner, Biodiversity in the Marine Environment: Resource Implications for the law of the Sea, 28 VAN. J. TRANSNAT’L L. 635, 656–663(1995), Erick Franckx, Regional marine environment protection regimes in the context of UNCLOS, 13 INT’L J. MAR. & COASTAL L. 307 (1998). 763 Article 192 of the 1982 LOSC established that “[a]ll States have the duty to preserve and protect the marine environment.” See in general McConnell & Gold, supra note 401. Jonathan I. Charney, Impact of the Law of the Sea Convention on the Marine Environment, 7 GEORGETOWN INT’L ENVT’L L. REV. 732 (1995); Miles, supra note 403; Boyle supra note 403; Jon M. Van Dyke, Giving Teeth to the Environmental Obligations of the LOS Convention, in Oceans Management in the 21st Century: Institutional Frameworks And Responses, 167–186 (A.G.O. Elferink & Donald Rothwell eds., 2004). 764 David Freestone, The Conservation of Marine Ecosystems Under International Law, in Internatıonal Law and the Conservatıon Of Bıologıcal Dıversıty 91 (Michael Bowman & Catherine Redgwell eds., 1996); Birnie, Boyle & Redgwell, Supra note 410; Jon Van Dyke, Giving Teeth to the Environmental Obligations in the LOS Convention, In Oceans Management in the 21st Century: Instıtutıonal Frameworks and Responses 167–186 (Alex Oude Elferink & David Rothwell, eds., 2004); Alan Boyle, Further Development of the 1982 Law of the Sea Convention: Mechanisms for Change, 54 int’l & comp. l. Q 563–84 (2005); International Law Association (ILA), “Formation of General Customary International Law: Final Report”, in Report of the 69th ILA Conference 712–790 (Alfred Soons & Christopher Ward, eds., 2000). Philomene Verlaan, Geo- engineering, the Law of the Sea, and Climate Change, 4 CARBON & CLIMATE L.REV. 446 (2009). 765 Article 235 of the 1982 LOSC on responsibility and liability holds states legally responsible for the fulfillment of their international obligations to protect and preserve the marine environment. Marine Biodiversity in the Black Sea 137 environment in the Black Sea.766 Part XII of the LOSC and the provisions, in particular the obligation to protect the marine environment under article 192, that are considered to constitute customary international law would arguably constitute such international obligations.767 The remaining question lies in determining the details of what measures are necessary in order for the State to fulfill its obligations under the Bucharest Convention, the 1982 LOSC and customary international law. In this regard, as discussed in detail below, the 1992 CBD is important. Part XII of the LOSC was also designed to provide a legal framework for implementation of regional activities. Joyner notes “Part XII does not merely furnish standard-setting principles. Rather, it supplies a blueprint for regionally responsive standards.”768 Furthermore, the Chair of the UNCLOS III Third Committee, Alexan- der Yankov, described the relationship between Part XII and Chapter 17 of Agenda 21 as one of “complementarity” between a legal framework and a programme of action.769 The regional aspect of co-operation acquired a hortatory normative value under article 123 of the LOSC. Consequently, its provisions must also be taken into account in regional arrangements for protection of marine biodiversity, such as the Black Sea. The 1982 LOSC, however, adopted a pollution prevention based approach rather than a broader ecosystem or biological diversity approach, neither term having been included in the Convention.770 This pollution-based approach was adopted by many of the early regional sea Conventions, including the Black Sea Bucharest Conven- tion. Notwithstanding its pollution focus, the 1982 LOSC included important and groundbreaking provisions for the protection of marine living resources and marine mammals. For example, article 194(5) specifically required that States, in taking measures to prevent, reduce and control pollution of the marine environment “shall include those [measures] necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.”

766 Article XVI(1). 767 See supra note 763. 768 Joyner, supra note 762, at 657. 769 Alexander Yankov, The Law of the Sea Convention and Agenda 21, in International Law and Sustainable Development Past Achievements And Future Challenges 271 (Alan Boyle & David Freestone, eds., 1999). 770 Article 194 on measures to prevent, reduce and control pollution of the marine environment; Article 207 on Pollution from land-based sources; Article 208 on Pollution from seabed activities subject to national jurisdiction; Article 209 on Pollution from activities in the area; Article 210 on Pollution by dumping; Article 211 on Pollution from vessels; and Article 212 on Pol- lution from or though the atmosphere. See Joyner supra note 762, at 657–663. 138 Chapter IV

2.4 Convention on Biological Diversity The concept of “biodiversity”771 gained international recognition during the 1992 United Nations Conference on Environment and Development held in Rio de Janeiro (UNCED) with the adoption of the 1992 Convention on Biodiversity (CBD).772 The 1992 CBD represented a new generation of environmental conventions reflecting a holistic and integrated approach to addressing the ecological challenges to achieving sustainable development.773 The CBD should have been the over-arching umbrella convention for the protection of biodiversity at the global level and providing a legal linkage with other conventions, such as the 1982 LOSC and Part XII.774 But, as noted by many commentators, it did not establish a comprehensive set of binding obligations for the protection of biodiversity.775 The text was softened by ubiquitous qualifying language, such as “as far as is possible and appropriate.”776 The legal framework is even less compelling for the marine environment since, as Free- stone points out, the 1992 CBD had a primarily terrestrial focus.777 Nevertheless, the 1992 CBD introduced for the first time the concept of “biodiversity” in an international hard law instrument. The principal mechanism for protection of biological diversity under the 1992 CBD is the creation of protected areas.778 In addition, the Parties are exhorted to:

771 While scientists have studied diversity of living organisms for decades the terminology of “biological diversity” first appeared in 1980s. Biological diversity is divided into three general levels: genetic diversity, species diversity and ecosystem diversity. Global Marine Biological Diver- sity a Strategy for Building Conservation Decision Making 9 (Elliott A. Norse, ed., 1993). 772 Convention on Biological Diversity, 5 June 1992. 31 ILM 841 (1992). 773 See Fiona McConnell, The Biodiversity Convention a Negotiating History (1996); Bow- man & Redgwell, supra note 711; Sam Johnston, Sustainability, Biodiversity and International Law, in McConnell, id., at 51. 774 See Brent Hendricks, Postmodern Possibility and the Convention on Biological Diversity, 5 N.Y.U. ENVT’L L. J. 1 8–9 (1996) [citing Francoise Burhenne-Guilmin & Susan Casey-Lefkowitz, The Convention on Biological Diversity: A Hard Won Global Achievement, 3 Y.B. INT’L L. 43, 44–45 (Gunther Handl et al. eds., 1992)]. 775 For criticisms of the weak legal framework of the 1992 CBD see, Hendricks, id. For a highly critical evaluation of the qualified language employed for the legal obligations under the 1992 CBD see Rachelle Adam, Missing the 2010 Biodiversity Target: A Wake-Up Call for the Convention on Biodiversity?, 21 COLO. J. INT’L L. & POL’Y 123 (2010). For the view that such qualifying language nevertheless may be interpreted as establishing a binding obligation see Christopher Wold, The Futility, Utility, and Future of the Biodiversity Convention, 9 COLO. J. INT’L L. & POL’Y 123 (1998) citing a decision of the Australian High Court interpreting similar qualifying language in the World Heritage Convention as creating binding obligations on the Parties. Id., at 15. 776 According to Alan Boyle the phraseology of “possible and appropriate” in the CBD is an expression of the principle 7 of the Rio Declaration for common but differentiated responsibilities, the latter terms never being employed in the text of the Convention. See Bowman & Redgwell, supra note 711, at 44. 777 David Freestone, The Conservation Of Marine Ecosystems Under International Law, in Bowman & Redgwell, Id., at 91–107. 778 Article 8(a). Marine Biodiversity in the Black Sea 139

• use impact assessments,779 • notify and exchange information on activities likely to cause adverse transboundary consequences,780 • integrate biodiversity conservation into sectoral and cross-sectoral plans, programmes and policies, • identify components of biological diversity important for its conservation and sustainable use and monitor them, • identify processes and activities likely to have an adverse impacts on their conservation and sustainable use, • promote protection of ecosystems and habitats in their natural surroundings, • rehabilitate and restore degraded ecosystems and promote the recovery of threatened species, • establish means to regulate, control and manage the risks associated with the release of living modified organisms resulting from biotechnology likely to have an adverse impact, • prevent the introduction of; control or eradicate alien species that threaten ecosystems, habitats or species, and • promote national measures for emergency response.781

Because these provisions are exhortatory and not mandatory, individual State parties retain the discretion to adopt and apply them. There is no firm requirement that these provisions be included in a regional regime, such as the Black Sea. If they had been made mandatory than arguably they would constitute the “necessary measures” to be taken to protect rare or fragile ecosystems and habitat of depleted, threatened or endangered species under article 194(5) of the LOSC, or under Article XVI Bucharest Convention. In this case the limitations of the pollution-focus of the Bucharest Convention become palpable. According to Article V (2) of the Bucharest Convention the Parties are under a duty to take all necessary measures consistent with international law to protect the marine environment of the Black Sea from pollution. The linkage between the Bucharest Convention and the 1992 CBD as a result is weakened by the “pollution” limitation. This also provides another reason for amending or adopting a revised Convention for the protection of the Black Sea that is based on a holistic and integrated approach and not limited to pollution prevention. One of the criticisms of the 1992 CBD was its failure to include express provisions on coastal and marine environment. In response to this, the second Conference of the Parties (COP 2) meeting in Jakarta adopted Decision II/10 on the Conservation and Sustainable Use of Marine and Coastal Biological Diversity, ( Jakarta Mandate) which

779 Article 14. 780 Article 14(1)(c). 781 Article 14(e). 140 Chapter IV established a strategy for conservation and sustainable use of marine and coastal ecosystems and encouraged the use of integrated marine and coastal management as the most suitable form of addressing human impacts on marine biological diversity.782 The fourth Conference of the Parties (COP 4) adopted a detailed implementation programme based on the Jakarta Mandate that relies on the ecosystem approach and the precautionary approach783 as basic principles to be applied. However, COP 4 Dec. IV/5 fell short of identifying these as binding principles preferring to employ the hortatory language of “should.” A decade following the adoption of the 1992 CBD the Parties adopted the first Strategic Plan for its implementation.784 Under the first Strategic Plan the Parties committed to “a more effective and coherent implementation of the three objectives of the Convention, to achieve by 2010 a significant reduction of the current rate of biodiversity loss at the global, regional and national level as a contribution to poverty alleviation and to the benefit of all life on earth.”785 In 2003, based on the recommendation of the CBD Subsidiary Body on Scientific, Technical and Tech- nological Advice (SBSTTA) the Parties adopted a decision, together with a detailed work programme, to establish by 2012 a network of comprehensive, effectively managed, and ecologically representative national and regional systems of marine protected areas to contribute to achieving the objectives of the Convention and objective set by the 2002 Johannesburg Plan of Implementation.786 The COP 10 held in Nagoya, however, acknowledged that the 2010 commitment, adopted under the 2002 Strategic Plan,

782 Paragraph 2. The Jakarta Mandate also “encouraged” the establishment of strengthening of “where appropriate” of “institutional, administrative, and legislative arrangements for the development of integrated management of marine and coastal ecosystems, plans and strategies for marine and coastal areas, and their integration within national development plans”. Id.; See Wold, The Futility, Utility, and Future of the Biodiversity Convention, supra note 775, at 26–28. 783 Id. The precautionary approach, as set out in decision II/10, annex II, paragraph 3 (a), should be used as a guidance for all activities affecting marine and coastal biological diversity, being also relevant to many other international agreements, inter alia, the United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks and the Code of Conduct for Responsible Fisheries of the Food and Agriculture Organization of the United Nations, the Washington Global Programme of Action for the Protection of the Marine Environment from Land-based Activities and regional agreements such as OSPAR. For a different perspective on the application of the precautionary principle in the biodiversity context, see Brendan Moyle, Making the Precautionary Principle Work for Biodiversity: Avoiding Perverse outcomes in Decision-making Under Uncertainty, in Biodiversity and the Precautionary Principle Risks and Uncertainty in Conservation and Sustainable Use 159, (Rosie Cooney & Barney Dickson eds. 2005); Rose Cooney, The Pre- cautionary Principle in Biodiversity Conservation and Natural Resource Management (IUCN, 2004). 784 COP 6 Decision VI/26, Strategic Plan for the Convention on Biological Diversity, available at . 785 Id., at para. 11. 786 Decision VII/28. The decision set as 2010 as the date for terrestrial protected areas. Available at http://www.cbd.int/decision/cop/?id=7765. See also, Biodiversity Working Group on Marine Protected Areas, Draft Policy for the Development of Marine Protected Areas in the Black Sea, (Ver- sion 1, March 2008). See also Paragraph 32 (c) of the Plan of Implementation of the World Summit on Sustainable Development, UN Doc. A/CONF/199/20, REPORT OF THE WORLD SUMMIT ON SUSTAINABLE DEVELOPMENT (2002), 6–72, 25. Marine Biodiversity in the Black Sea 141 to achieve a significant reduction of the loss of biodiversity at the global level had not been fulfilled.787 In 2010 the Parties adopted the Strategic Plan for Biodiversity 2011–2020 and the Aichi Biodiversity Targets,788 which revised the 2002 Plan. The 2010 Strategic Plan adopted twenty specific targets, one of which implicitly extended the 2003 mandate for establishing a network of marine protected areas from 2012 to 2020.789 More important, it provided for the conservation of a minimum ten percent of all coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, through effectively and equitably managed, ecologically representative and well connected systems of protected areas and other effective area-based conservation measures that are integrated into the wider landscapes and seascapes.790 The 2010 Strategic Plan specifically provides that its implementation is to be carried out primarily at the national and sub-national level with the support of regional and global activities. Notwithstanding the “supportive” role attributed to the regional level, this will still require regional programmes, such as the UNEP Regional Seas Programmes, including the Black Sea, to adopt and implement the necessary activities to reflect the new Strategic Plan for Biodiversity. The fluid nature of the international framework underlines the need for the regional framework, such as the Black Sea, to create a strong legal foundation based on a clear set of obligations and implementation principles and mechanisms, while remaining flexible and responsive to changes and developments.

3. International Principles for the Protection and Conservation of Biodiversity

3.1 1992 United Nations Conference on Environment and Development: The “Rio” Framework The 1992 UNCED,791 without question, marked a turning point in the progressive development of international environmental law. Many of the key principles of international environmental law were adopted during this historic summit of world governments. With the participation of 176 States792 the outcomes of the 1992 UNCED embodied a global understanding of what legal and management elements were necessary to achieve sustainable protection of the environment.793 The 1992

787 UNEP/CBD/COP/10/27, Strategic Plan for Biodiversity 2011–2020 and the Aichi Bio- diversity Targets, Annex, para. 7. 788 Id. 789 Id. Target 11. 790 Id. 791 Report of the UN Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992, UN Doc. A/CONF.151/26/Rev.1 (vols. I–III). See Sands, supra note 203, at 52–59. 792 Id., at 52. 793 For a detailed analysis of the principles important in the development of protection of the marine environment, see David M. Dzidzornu, Four Principles in Marine Environment Protection: A Comparative Analysis, 29 OCEAN & DEV. L. 91 (1998). 142 Chapter IV

Rio Declaration, adopted at the UNCED, has been described as “part of an ongo- ing process of codification and development of international environmental law.”794 Freestone and Boyle enumerate three important factors demonstrating the authorita- tive role of the Rio Declaration in the development and articulation of international law relating to the environment and sustainable development. First, while adopted in a purportedly soft law instrument, the language employed by UNCED uses the obligatory “shall”795 indicating an intention to create norms.796 Second, reminiscent of the UNCLOS III ‘package deal’ the Rio principles were adopted by consensus by all participating governments.797 And third, the Declaration reflects a real consensus of developed and developing states on the need for generally agreed norms of international environmental protection.”798 The central role of the principles articulated in the 1992 Rio Declaration for the protection of coastal and marine biodiversity was also recognized by COP 9 Dec. IX/20.799 The principles adopted in the Rio Declaration include the duty to co-operate, the principle of common but differentiated responsibilities,800 the right of public participation and public access to information concerning the environment,801 the precautionary approach,802 the use of environmental impact assessments,803 the duty of prior notification in cases of natural disasters or emergencies to other States,804 and the need to provide prior and timely notification and relevant information to

794 Alan Boyle, “Codification of International Environmental Law and the International Law Commission: Injurious Consequences Revisited,” in International Law and Sustainable Development, Past Achievements and Future Challenges 61–85, 68 (Alan Boyle & David Freestone, eds., 1999). In addition, Boyle described the 1992 Rio Declaration as constituting at the time “the most significant universally endorsed statement of general rights and obligations of states affecting the environment. Id. See also, Stanley P. Johnson, Did We Really Save the Earth at Rio? in The Earth Summit: The United Nations Conference on Environment and Develop- ment (UNCED) (2001). 795 On the question of ‘soft’ and ‘hard’ law see, Pierre-Marie Dupuy, Soft law and the international law of the environment, 12 MICH. J. INT’L L. 420 (1991), Peter H. Sand, UNCED and the development of international environmental law, 8 J. NAT. RESOURCES & ENVTL. L. 209 (1992), Geoffrey Palmer, New ways to make international law, 86 AM. J. INT’L L. 259 (1993), Gunther F. Handl, W. Michael Reisman, Bruno Simma, Pierre Marie Dupuy, Christine Chinkin & Rachel De La Vega, A Hard Look at Soft Law, 82 AM. SOC’Y INT’L L. PROC. 371; Patricia Birnie, International Environmental Law: Its Adequacy for Present and Future Needs, in International Politics of the Environment, 52–4. (Hurrell & Kingsbury eds., 1992); Birnie, Boyle & Sedgwell, supra note 410, at 34–37; Daniel Bodansky, The Art and Craft of International Environmental Law 87–107 (2009). 796 Boyle & Freestone, supra note 733, at 3. 797 Id. 798 Id., at 4. 799 The Preamble of COP 9 Dec. IX/20 provided as follows: Recognizing that the principles adopted in the Rio Declaration on Environment and Development 37/play an important role in the conservation and sustainable use of marine biodiversity. 800 Principle 7. 801 Principle 10. 802 Principle 15. 803 Principle 17. 804 Principle 18. Marine Biodiversity in the Black Sea 143 potentially affected States on activities that may have a significant adverse transboundary environmental effect to consult with those States at an early stage and in good faith.805 These principles have created the governance foundation for modern environmental law. As a reflection of their normative impact the Rio principles have been incorporated into subsequent international environmental agreements and instruments, including those related to the protection of the marine environment. Given the normative status of these principles, it is all the more important for the Black Sea regional legal framework to ensure their incorporation into legal instruments, such as the Bucharest Convention, which as a framework instrument has cross-cutting application. As discussed in the previous chapter an alternative to amending the Bucharest Convention would be to incorporate these principles into binding implementing protocols and strategic actions plans as has been done in the Black Sea to fill the governance and regulatory gaps in the Convention. Regardless of their status under customary international law they reflect a global consensus on what principles or approaches are necessary to create a sustainable regime for the protection of the marine environment, including marine biodiversity. In other words, these principles embody a global view of best legal practices for the protection of the environment.

3.2 Marine Spatial Planning as an Emerging Concept Marine spatial planning (MSP) is an emerging concept that has been adopted by States around the world. It has been described as ecosystem-based marine zoning806 and according to one author is “a strategic plan (including forward-looking and pro- active) for regulating, managing and protecting the marine environment, including through allocation of space that addresses the multiple, cumulative and potentially conflicting uses of the sea and thereby facilitates sustainable development.”807 UNESCO has defined MSP as “a public process of analyzing and allocating the spatial

805 Principle 19. 806 D.A. Sivas & M.R. Caldwell, A New Vision for California Ocean Governance: Comprehensive Ecosystem-based Marine Zoning, 27 STANFORD ENVtL. L. J. 211, 226–227 (2008). The authors explain their deliberate use of the term ‘ecosystem-based marine zoning’ over using other nomen- clatures such as MSP to describe a management approach that is based on “sound ecological management principles recognizing that ocean governance is based on a ‘public trust’ doctrine in contrast to the involvement of private property rights of terrestrial environment management. Nonetheless, the proposed ecosystem-based zoning system adopts the terrestrial method of zoning as an analogous model in order to provide for prospective spatial planning for compatible uses and management according to zoning districts established.” Id., at 228. 807 S.J. Boyes, M. Elliott, S.M. Thomson, S. Atkins & P. Gilliland, A proposed multiple-use zoning scheme for the Irish Sea. An interpretation of current legislation through the use of GIS-based zoning approaches and effectiveness for the protection of nature conservation interests, 31 MAR. POL’Y 287–298 (2007). For a discussion of the meaning of spatial planning see also: J. Taussik, The opportunities of spatial planning for integrated coastal management, 31 MARINE POLICY 611–618 (2007); G. Osherenko, New Discourses on Ocean Governance: Understanding Property Rights and the Public Trust, 21 J. envtl LAW & LIT. 317–382 (2006). 144 Chapter IV and temporal distribution of human activities in marine areas to achieve ecological, economic and social objectives that have been specified through a political process.”808 It is deemed not to be an end in itself, but a practical way to create and establish a more rational use of marine space and the interactions between its uses, to balance demands for development with the need to protect the environment, and to achieve social and economic objectives in an open and planned way.809 Its origins are found in marine protected areas, beginning with Great Barrier Reef.810 MSP is being adopted in many large marine areas including regional seas such as the Baltic and North Seas.811 It is an important tool in the designation of marine protected areas and in the use of an integrated ecosystem based approach.812 UNESCO is a strong proponent of MSP and has developed a marine spatial planning initiative.813 It is a particularly useful planning tool in developing networks of marine protected areas, especially in heavily used marine spaces, such as the Black Sea.

3.3 Implications for the Black Sea Regional Regime The global framework for protection of marine biodiversity is a patchwork of hard and soft obligations. Somewhat paradoxically, the 1992 CBD, which was designed to provide a global legal framework for the protection of biodiversity, in effect only provided a soft framework; one that is more aspirational than providing a set of clear obligations. There is no ostensible “hard” obligation to protect marine biodiversity under the 1992 CBD but there is a clear obligation under the 1982 LOSC to protect the marine environment, including fragile and vulnerable ecosystems and habitats. Nonetheless, the 1992 CBD is important as it established marine protected areas as a one of the key mechanisms for marine conservation. In fact, given that Conference of the Parties (COP) decisions of the 1992 CBD reflect their consensus, this would also provide the basis for establishing the existence of a duty for States to establish marine protected areas as part of their duty to protect the marine environment as

808 See http://www.unesco-ioc-marinesp.be/marine_spatial_planning_msp?PHPSESSID=0c381d 9ca50540382adc2702e78a8cb8. 809 Id. 810 Fanny Douvére, The importance of marine spatial planning in advancing ecosystem-based sea use management.” 32 MAR. POL’Y 762– 771, 776 (2008). See also, F. Douvére, F. Maes, A. Vanhulle & J. Schrijvers, The role of marine spatial planning in sea use management: The Belgian case, 31 MAR. POL’Y 182–191 (2007). 811 The Baltic Sea Action Plan, adopted in 2007, has committed to examining the use of MSP in the Baltic Sea. See supra note 620 and Table 12; and HELCOM Recommendation 28E/9, Develop- ment of Broad-Scale Marine Spatial Planning Principles in the Baltic Sea Area, 15 Nov. 2007, available at http://www.helcom.fi/Recommendations/en_GB/rec28E_9/; For the North Sea see Ellen Hey, The International Regime for the Protection of the: From Functional Approaches to a More Integrated Approach, 17 int’l j. mar. & coastal l. 325–350 (2002). 812 See Oral, Integrated Coastal Zone Management and Marine Spatial Planning for Hydrocarbon Activities in the Black Sea supra note 80, at 465. 813 “Step-by-Step Approach for Marine Spatial Planning Toward Ecosystem-based Manage- ment,” Available at . Marine Biodiversity in the Black Sea 145 mandated in Part XII of the 1982 LOSC,814 customary international law, and in the case of the Black Sea States, as part of their international responsibility under Article XVI(1) of the Bucharest Convention.815 The establishment of marine protected areas would constitute the necessary measures for purposes of article 194(5) of the 1982 LOSC816 and implicitly as part of the measures the Black Sea States need to adopt to protect, prevent and reduce pollution of the Black Sea. However, both the 1982 LOSC and the Bucharest Convention share a pollution-prevention focus, which could be seen as limiting the duty to establish marine protected areas within the framework of preventing pollution of the marine environment. In building its regional regime for protection of marine biodiversity the Black Sea regime needs to adopt an integrated marine and coastal management approach, the precautionary and ecosystem approaches. Furthermore, following the COP decision adopted in Nagoya in October 2011, the Black Sea States will be expected to at the minimum implement the Aichi Targets and the new Strategic Action Plan, including the revised goal of establishing a network of protected areas, and integrate this into the regional regime. There are, at the time of this study, one hundred and twenty-five marine protected areas in the Black Sea.817 The total marine protected areas coverage in the Black Sea is more than 1.1 million hectares representing approximately 2.4 percent of marine areas.818 However, there is at present no network of marine protected areas in the Black Sea. And the existing protected areas are within the coastal belt of the Black Sea States with none established in any EEZ of a Black Sea State and or in a transboundary zone. The largest protected area is the Danube Delta Biosphere Reserve in Romania which accounts for some fifty percent of the existing marine protected area in the Black Sea. The Black Sea States will have to accelerate cooperative efforts in order to fulfill the Aichi Target of establishing marine protected areas constituting at least ten percent of their coastal and marine areas.

814 Supra note 403. 815 Supra note 477. 816 Article 194 (1) states in the imperative that “States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, control and reduce pollution of the marine environment from any source . . .” Supra note 403. 817 The UNEP-WCMC review of marine protected areas world-wide noted that it was too early to assess the establishment of MPAs network in the Black Sea. National and Regional Net- works of Marine Protected Areas: A Review of Progress, 94 (2008). 818 Guidelines for the Establishment of Marine Protected Areas in the Black Sea, Version 3, 5 (2008). The Guidelines were developed as part of the Europeaid project for adoption by the Black Sea Commission. However, the Guidelines were not adopted by the Black Sea Com- mission. New Guidelines are being developed. 146 Chapter IV

4. Regional Models for the Protection of Marine Biodiversity

4.1 Regional Models and Standard Setting Over the decades the progressive development of international environmental law has produced a corpus of principles, approaches and mechanisms for protection of marine biodiversity. Reflecting a broad global agreement, this corpus forms what could be termed “best legal practices” that should be incorporated into international instruments for protection of the marine environment, including protection of biodiversity. Within this context, an examination of legal instruments developed and adopted in different regional seas can provide a benchmark for assessing whether the Black Sea Biodiversity and Landscape Protocol meets “best legal practices” for the protection of marine biodiversity. One of the earliest and best examples of best legal practices for the protection of marine biodiversity is the Protocol Concerning Specially Protected Areas and Wildlife (SPAW Protocol) for the Wider Caribbean Region,819 and the subsequently adopted Specially Protected Areas of Mediterranean Interest Protocol (“SPAMI”). 820 Both have incorporated many of the important principles and approaches of modern international environmental. Moreover, as will be discussed below, both protocols have filled an important legal gap left by the 1992 CBD by providing clear duties to protect biodiversity through the establishment of marine protected areas.

4.2 The SPAW Protocol for the Wider Caribbean Region The UNEP Regional Seas Programme for the Wider Caribbean, established in 1976, was one of the first of the regional seas programmes.821 The Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (Cartagena Convention), which went into effect in 1986,822 included a provision on “Specially Protected Areas” that required the Contracting Parties to “ . . . individually or jointly, take all appropriate measures to protect and preserve rare or fragile ecosystems, as well as habitat or depleted, threatened or endangered species . . .”823 It also included a precautionary obligation to prevent species from

819 Protocol Concerning Specially Protected Areas and Wildlife (SPAW), 18 January 1990, 2180 U.N.T.S. 25974. 820 2102 U.N.T.S. 36553. 821 Barbara Lausche, Wide Caribbean Region- A Pivotal Time to Strengthen Regional Instruments for Biodiversity Conservation, 23 int’l j. mar. & coastal l. 499–530 (2008). In regard to the negotiation and drafting of the Protocol see also, David Freestone, Specially Protected Areas and Wildlife in the Caribbean-the 1990 Kingston Protocol to the Cartagena Convention, 5 INT’L J. ESTUA- RINE & COASTAL L. 362–382 (1990), and David Freestone, Protection of Wildlife and Ecosystems-the new Protocol on Protected Areas and Wildlife, 22 MAR. POLLUTION BULL. 578–581 (1991). 822 Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (Cartagena Convention), 24 March 1983, 1506 U.N.T.S. 25974. 823 Cartagena Convention, Id., article 10. Marine Biodiversity in the Black Sea 147 becoming threatened or endangered. The 1990 SPAW Protocol of the Cartagena Con- vention, was adopted as the regional instrument for implementing this provision.824 It established the regional and co-operative legal framework for the protection of special areas and endangered species of flora and fauna. While the SPAW Protocol pre-dated the 1992 CBD its provisions were advanced,825 innovative826 and served as the model for subsequent regional seas protocols. Despite the passage of twenty years its provisions remain current and innovative. The SPAW Protocol provides an excellent model of the harmonization of the key aspects of the conservation ICAs and the 1992 CBD, as well as many of the fundamental principles of the 1992 Rio Declaration. More importantly, close examination reveals that it has advanced the conservation agenda from the diluted, qualified and aspirational language of many of the global instruments into clearly articulated legal obligations. In this regard, the SPAW Protocol provides a prototype for how a regional approach can operationalize the global framework into crisper and more defined obligations and standards. The principal requirement and purpose of the Protocol is the obligation for the Contracting Parties to establish protected areas.827 According to article 3 the Parties are required to:

• take the necessary measures to protect, preserve and sustainably manage areas of special value, threatened or endangered species of flora or fauna, • manage species of fauna and flora “to the extent possible” so as to prevent their becoming endangered or extinct, and • prohibit activities having an adverse effect on such areas and species.

There is also a requirement that the Parties co-operate in enforcing these measures.828 In addition, according to article 6(1), Parties are required to include enforcement measures in the planning and management plans for protected areas is repeated. The mandate to co-operate in enforcement activities was not, however, included in other subsequent regional seas protocols or instruments, including that for the Black Sea. The SPAW Protocol also included a broad set of protective measures the Par- ties should include when establishing protected areas,829 which exceed the ambit of

824 Protocol Concerning Specially Protected Areas and Wildlife (SPAW), supra note 819. 825 A Memorandum of Cooperation (MOC) between the Secretariat of the Cartagena Conven- tion and the SPAW Protocol and the Secretariat of CBD was concluded in 1997. See Lausche, supra note 821, at 512–13. The texts of the MOC is available at http://www.cep.unep.org/cartagena- convention. 826 On the innovative aspects of the SPAW Protocol see Lausche, id., at 509. 827 Article 4. The Preamble of the Protocol takes into account the requirement under Article 10 of the Convention for the Parties to establish protected areas. 828 Article 3. 829 Article 5. 148 Chapter IV the 1992 CBD and other ICAS,830 demonstrating the critical role played by regional regimes. The measures for protected areas included a broad range of activities.831 Hints of the conservation ICAs are sprinkled in the text of the Protocol such as the trade restriction provisions in article 5(2)(j),832 article 10(2) and (3)833 and article 11(1)(a)(b)834 implementing the provisions of CITES in a regional context. Echoing the 1979 Bonn Convention, the Protocol requires co-operation with range states for the protection of migratory species.835 And once again, parallel to CITES the Pro- tocol imposes a duty for Parties to adopt co-operative measures for protection and recovery of endangered or threatened species listed in the Annexes to the Protocol. Co-operation of the Parties is stressed throughout the Protocol. In particular the SPAW Protocol includes a separate provision requiring the Parties to establish a cooperative programme for establishing and listing of protected areas836 that includes a requirement to “create a network of protected areas . . .”837 One unique aspect of the Protocol, which was not adopted by subsequent regional sea instruments/protocols, is the provision for buffer zones. These zones place fewer restrictions on activities or access than those allowed for protected areas, creating an intermediary protection

830 Article 10 National measures and article 11 Co-operative measures for the protection of wild flora and fauna. 831 Article 5(a)–(m). These include inter alia the prohibition of dumping or discharge of wastes, the regulation of ships passage, regulation or prohibition or fishing activities or the other activities that would threaten endangered species of fauna or flora, the regulation of the introduction of non-indigenous species, the regulation or prohibition of activities on the sea-bed or its sub-soil including any modification of it, the regulation of archeological activities and the removal or damage of any object that may be considered as an archeological object, regulation or prohibition of trade in endangered species of flora or fauna, and the regulation of tourist and recreational activities that might endanger the ecosystems of protected areas or the survival of threatened or endangered species of flora or fauna. 832 Article 5(2)( j) requires the Parties to take measures as appropriate for the regulation or prohibition of trade in, and import and export of threatened or endangered species of fauna or their parts, products, or eggs, and of threatened or endangered species of flora or their parts or products, and archaeological objects that originate in protected areas . . . 833 Article 10 on National Measures for the Protection of Wild Flora and Fauna, in sub- paragraph 2 requires the Parties inter alia to take measures regulating or where appropriate prohibiting the commercial trade in protected species of wild flora and their parts and products. In sub-paragraph 3 requires the Parties inter alia to take measures regulating or where appropriate prohibiting the commercial trade in protected species of wild fauna and their parts and products. 834 In article (1)(a) and (b) respectively, the Parties are required to cooperate adopt all appropriate measures to ensure the protection and recovery of species of flora listed in Annex I of the Protocol by inter alia prohibiting all commercial trade in such species, their seeds, parts or products and regulating activities that may be harmful to their habitats; and adopt all appropriate measures to ensure the protection and recovery of species of wild fauna listed in Annex II by inter alia alia prohibiting all commercial trade in such species, their eggs, parts or products and regulating activities that may be harmful to their habitats. 835 Article 9(3). 836 Article 7. 837 Article 7(2). There are some 285 marine protected areas in the SPAW region, although of varying effectiveness. According to Reefs at Risk Project only six percent of MPAs in the Caribbean region were found to be effectively managed and thirteen percent as having partially effective management. Available on-line . Marine Biodiversity in the Black Sea 149 zone.838 The SPAW Protocol further included the possibility of creating transboundary protected areas or buffer zones based on the mutual consultation and agreement of the Parties. The provisions on establishing transboundary marine protected areas were later adopted in other regional seas protocols, notably the SPAMI Protocol.839 Other duties imposed on the Parties include the obligation to identify endangered or threatened species in their jurisdiction,840 to regulate or prohibit the intentional or accidental introduction of non-indigenous or genetically altered species,841 the duty to use environmental impact assessments,842 and the duty of the Parties to compile comprehensive inventories for rare or fragile ecosystems or reservoirs of biological or genetic diversity.843 Clearly, the SPAW Biodiversity Protocol has created a strong legal regime that combines well articulated obligations, measures to be adopted and areas of cooperation. The Protocol also established a Scientific and Technical Advisory Committee (STAC) under article 20, composed of technical experts appointed by the Parties. The principle function of the STAC is to provide technical advice in the implementing the Protocol.

4.3 The Mediterranean Sea and the 1995 SPAMI Protocol The SPAMI Protocol of the Convention for the Protection of the Marine Environ- ment and Coastal Region of the Mediterranean (Barcelona Convention) was adopted on 19 June 1995 and entered into force on 12 December 1999.844 The Protocol provides for the establishment of a List of Specially Protected Areas of Mediterranean Interest (SPAMI List).845 The SPAMI closely resembles the SPAW Protocol, although it was drafted subsequent to the adoption of the 1992 CBD and for this reason makes reference to it. SPAMI is a hybrid of the SPAW Protocol and the 1992 CBD. There are several provisions of SPAMI that are either similar to or adopted mutis mutandis from the SPAW Protocol. For example, the SPAMI Protocol also included provisions for the establishment of transboundary protected areas,846 but did not include “buffer zones”. The innovation introduced by the SPAMI Protocol was the possibility to establish marine protected areas in the high seas areas of the Mediterranean Sea.847 The SPAMI Protocol, similar to Article 10 of the SPAW Protocol, specifies in

838 Article 8. 839 Supra note 90. 840 Article 10(1). 841 Article 12. 842 Article 13. 843 Article 17. 844 Supra note 90. 845 Id. 846 The text of the provisions on the establishment of specially protected areas in the marine or coastal zones in transboundary areas in Article 5 of SPAMI are virtually identical to those provisions in Article 9 of the SPAW Protocol. 847 See Tullio Scovazzi, Marine Protected Areas on the High Seas: Some Legal and Policy Consid- erations,” 19 INT’L J. MAR. & COASTAL L. 1–17, 11–13 (2004). 150 Chapter IV detail the national measures to be taken within the protected area once established, including prohibited or regulated activities. To date twenty-one SPAMIs and only one “high seas” SPAMI, the Pelagos sanctuary, have been established.848 The SPAMI Protocol, like the SPAW Protocol, fills an important legal gap left by the 1992 CBD. In article 3(a) and (b), it creates a clear obligation for the Parties to “protect, preserve and manage in a sustainable and environmentally sound way areas of particular natural or cultural value, notably by the establishment of specially protected areas”, and to “protect, preserve and manage threatened or endangered species of flora and fauna.” Other obligations include the duty for the Parties to co- operate either directly or through the competent international organization in “the conservation and sustainable use of biodiversity . . .”;849 to “identify and compile inventories of the components of biological diversity important for its conservation and sustainable use”;850 to “adopt strategies, plans and programmes for conservation and sustainable use of biodiversity . . .”;851 and to “monitor the components of biological diversity . . .”852 Article 4 of the SPAMI includes reference to the biological diversity. It would, however, be incorrect to characterize the SPAMI as a complete regional implementation of the 1992 CBD. There are many aspects of the 1992 CBD missing from the Protocol and many aspects which were included in the Protocol but absent from the 1992 CBD. For example, the SPAMI makes no reference to the “fair and equitable sharing of the benefits arising out of the utilization of genetic resources” which was listed as one of the objectives of the 1992 CBD,853 nor is there any reference to biotechnology. One important institutional creation of the SPAMI that is not part of the SPAW is the Regional Activity Center for Specially Protected Areas (RAC-SPA), headquartered in Tunis. The RAC-SPA has been actively promoting and working with the Mediterranean countries and stakeholders to promote the implementation of SPAMI as well as provide assistance in identifying, establishing, and managing marine protected areas.

4.4 European Regional Approach to Protection of Biodiversity The accession of Bulgaria and Romania to the European Union in 2007, as well as Turkey’s continued candidacy, necessarily brings the EU aquis communautaire into

848 The Pelagos Sanctuary for Mediterranean Marine Mammals was established in 25 Novem- ber 1999 between France, Italy and the Principality of Monaco. See Scovazzi, The Mediterranean Marine Mammals Sanctuary, supra note 600. 849 Article 3(2) which correlates to Article 5 of the 1992 CBD entitled “Cooperation.” 850 Article 3(3). 851 Article 3(4). 852 Article 3(5). 853 Article 1 of the 1992 CBD. Marine Biodiversity in the Black Sea 151 play in the Black Sea, including the protection of marine biological diversity.854 The EU and its members States are Parties to the 1992 CBD, but the key regional instruments that form the foundation of the EU biodiversity legal framework pre-date the 1992 CBD. These are the 1979 Berne Convention on the Conservation of European Wildlife and their Natural Habitats (Berne Habitat), 855 the 1979 Wild Birds Directive856 and the 1992 EC Directive on the Conservation of Natural Habitats and of Wild Fauna and Flora (Habitats Directive).857 The 1992 Habitats Directive adopted the “Natura 2000” policy that aims to establish a “coherent European ecological network of special areas” within the nine biogeographical regions established by the Commission.858 For each of the biogeographical regions the European Commission adopts sites of community importance (SCI). In 2002 guidelines were adopted specifically for designating and managing marine Natura 2000 sites.859 Upon the accession of Bulgaria and Romania the Black Sea was added to the map of biogeographical regions and in 2008 an initial list of sites of Community importance was adopted for the Black sea based upon the submission by the two Black Sea member States.860 The EU, in recognition that it would not meet the 2010 target for significant reduction of the loss of biodiversity, following the Nagoya COP 10 of the CBD, adopted a

854 Council Directive 2006/105/EC adapting Directives 73/239/EEC, 74/557/EEC and 2002/83/ EC in the field of environment, by reason of the accession of Bulgaria and Romania, 2006, O.J. (L . 175) 368. 855 1979 Berne Convention on the Conservation of European Wildlife and their Natural Habitats (Berne Habitat Convention), 19 Sept. 1979, 1284 U.N.T.S. 209, See also, Sands supra note 203, at 532–33. It was developed by the Council of Europe. Although a European instrument the 1979 Berne Habitat Convention has been open to signature to non-European countries, such as Africa. The 1979 Berne Habitat Convention has a broad scope of application that includes the protection of all species of flora and fauna, including migratory species, and habitats. 856 Council Directive 79/409/EEC of 2 April 1979 on the Conservation of Wild Birds, 1979 O.J. (L103) 1 Amended Council Directive 91/244 1991, O.J. (L 115), 8, 5, 41. 857 Council Directive 92/43/EEC of 21 May 1992, O.J. (L 206) 7. See David Freestone, European Community Environmental Policy and Law, 18 J. L. & SOC’Y 135, 142 (1991); André Nollkaemper, Habitat Protection in European Community Law: Evolving Conceptions of a Balance of Interests, 9 J. ENVTL L. 276–286 (1997). 858 97/266/EC: Commission Decision of 18 December 1996 concerning a site information format for proposed Natura 2000 sites, 2004, O.J. (L 107) 1. The nine biogeographical regions are: Steppic, Pannonian, Boreal, Atlantic, Mediterranean, Continental, Black Sea, Alpine and Macrone- sian. For a map of the regions, available at http://ec.europa.eu/environment/nature/natura2000/ sites_hab/biogeog_regions/maps/biogeo_map_eur27.pdf. See also Heino O. Fock, Natura 2000 and the European Common Fisheries Policy, 35 Mar. Pol’y 30 181–188 (2011). 859 Guidelines for the establishment of the Natura 2000 network in the marine environment. Application of the Habitats and Birds Directives, available at . 860 2009/92/EC: Commission Decision of 12 December 2008 adopting, pursuant to Coun- cil Directive 92/43/EEC, an initial list of sites of Community importance for the Black Sea biogeographical region (notified under document number C (2008) 7974). See Black Sea Region Reference List, available at http://ec.europa.eu/environment/nature/natura2000/sites_hab/ biogeog_regions/docs/Black_Sea_ref_list.pdf. See also NATURA 2000 In The Black Sea (European Commission 2009, available on-line at http://ec.europa.eu/environment/nature/info/pubs/docs/ biogeos/Black%20Sea.pdf. 152 Chapter IV new strategy for the protection of biodiversity.861 The new strategy, parallel to the Nagoya Strategic Plan for Biodiversity,862 adopted a vision for 2050 and 2020 target for biodiversity. By 2050 it is envisioned that EU biodiversity and the ecosystem services provided by it will be protected, valued and appropriately restored to their intrinsic value, their contribution to human wellbeing and economic prosperity with the goal of averting catastrophic changes resulting from the loss of biodiversity.863 The 2020 target seeks to halt the loss of biodiversity and the degradation of ecosystem services.864 The inter-linkage and focus between biodiversity and ecosystem services is new and reflects a growing institutional acknowledgment of the functional and life-saving value of biodiversity. One other European instrument, which has influenced the Black Sea Biodiver- sity Protocol, is the 1998 Pan-European Biological and Landscape Diversity Strategy (PEBLDS).865 The PEBLDS is a twenty-year strategy (1996–2016) developed for the entire continent of Europe to implement the 1992 CBD in Europe. Its stated aims are to substantially reduce or remove threats to Europe’s biological and landscape diversity and increase resilience of European biological and landscape diversity.866

5. The Black Sea Regional Framework for Protection of Biodiversity

5.1 Black Sea Strategic Action Plan The 1996 Black Sea-SAP867 was developed based on the findings of the first Black Sea-TDA, a science-based assessment of the Black Sea marine environment.868 Three of the seven categories of “perceived major problems” identified under the 1996 Black Sea-TDA concerned threats to marine living resources and marine biodiversity. Adopted at a diplomatic conference it was a binding commitment undertaken by the six Black Sea States. The 1996 Black Sea-SAP set out specific actions to be

861 Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions: Our life insurance, our natural capital: an EU biodiversity strategy to 2020, COM (2011) 244 final. 862 See supra note 787. 863 The Nagoya Strategic Plan provides as its vision for 2050 as “a world of [l]iving in harmony with nature” where “by 2050, biodiversity is valued, conserved, restored and wisely used, maintaining ecosystem services, sustaining a healthy planet and delivering benefits essential for all people.” Supra note 744, paragraph 11. 864 Id. para. 2.2. 865 See Pan-European Biological and Landscape Diversity Strategy, Landscape Europe, available at http://www.landscape-europe.net/peblds.html. See also, Cinnamon Carlarne, Putting the “And” Back in the Culture-Nature Debate: Integrated Cultural and Natural Heritage Protection, 25 UCLA J. ENVTL L. 153, 186–187 (2006–2007). 866 Article 2.2. 867 Supra note 51. 868 Supra note 40. Marine Biodiversity in the Black Sea 153 taken and explicit benchmark dates. Paradoxically, however, actions related to protection of marine living resources and biodiversity remain as the areas where the least progress has been achieved. According to the 1996 Black Sea-SAP the Black Sea States were to develop and adopt a Black Sea Biodiversity Protocol by 2000, which was to be ratified by national systems by 2001.869 The 1996 Black Sea-SAP further included a requirement that new conservation areas be designated and existing ones be enhanced.870 However, the 1996 Black Sea-SAP did not provide any objective criteria for how these conservation areas were to be designated. It simply required the Black Sea States to take into consideration the integrity of the Black Sea system, giving as an example the designation of conservation areas of regional significance,871 which paralleled to some extent with the sites of community importance of the EU Habitats Directive.872 The 1996 Black Sea-SAP, in addition, required that the Black Sea States adopt a Regional Strategy for Conservation Areas by mid-1998 and that it be reviewed every five years.873 Further, the 1996 Black Sea-SAP provided that by 2000, each Black Sea State was to endeavour to revise or adopt regulations and planning instruments for the protection of conservation areas, which were to be in conformity with relevant international instruments and the Regional Strategy for Conservation Areas.874 However, by 2002 when it became evident that almost none of these targets and others set under the 1996 Black Sea-SAP would be fulfilled, the timelines were amended and extended. In 2007 a second Black Sea-TDA was conducted forming the basis for a second Black Sea-SAP. However, by 2009, when the second Black Sea-SAP was adopted based on the findings of the 2007 Black Sea-TDA, many of the commitments made under the 1996 Black Sea-SAP, as revised in 2002, remained unfulfilled. Somewhat apologetically the 2009 Black Sea-SAP sought to explain this failure as caused by the “overambitious” nature of the commitments made in 1996.875 Little progress was made between 1996 and 2009; the Black Sea Biodiversity and Landscape Protocol had not been ratified, no regional strategy for an ICZM was adopted, no Regional Strategy for Conservation Areas was adopted, and there has been very slow progress on developing MPAs for the Black Sea. The 2007 Black Sea- TDA reported improvement in biodiversity for the Black Sea since the 1990s. For example, the Northwest Shelf that once was deemed dead has shown increased biota (life).876 The Report, nevertheless, cautioned that the Northwest Shelf was “a long

869 Paragraph 60. 870 Supra note 40, at para. 64. 871 Id. 872 Supra note 857. 873 Supra note 40, at para. 65. 874 Paragraph 65 (a)–(b). 875 Strategic Action Plan for the Environmental Protection and Rehabilitation of the Black Sea, adopted in Sofia, Bulgaria, 17 April 2009, para. 1.2. 876 Supra note 40, p. 5. 154 Chapter IV way from being ‘totally recovered’ and needed further human protection.877 The Black Sea Ecological Network was identified as the core objective of the Black Sea Biodiversity and Landscape Conservation Protocol (BSBLCP-SAP).878 The delay by the six Black Sea States to meet their commitments under the 1996 Black Sea-SAP as revised in 2002 can be, at least in part, attributed to the weak legal foundation and pollution prevention focus of the 1992 Bucharest Convention.

5.2 The Bucharest Convention One of the weaknesses of the Bucharest Convention is its narrow perspective as reflected in its title – “Convention on the Protection of the Black Sea against Pollu- tion” – thematically limiting its ambit to primarily the protection of the Black Sea against pollution. Notwithstanding the preambular language expressing a regional determination to progress in the protection of the marine environment and in the conservation of its living resources, the operative provisions of the Conventions fall significant short of codifying such a determination. The nearly exclusive focus on pollution is reflected in Article V (2), according to which the protection of the marine environment is limited to the duty of the Parties to take those necessary measures to “prevent, reduce and control pollution” of the Black Sea (Emphasis added). The narrow focus on pollution in the Convention is further evidenced in the Preamble, which only makes references to international conventions dealing with pollution prevention of the marine environment.879 The focus on pollution prevention was also reflected in the three protocols adopted together with the Convention, which exclusively dealt with pollution prevention from different sources: the Emergency Protocol for Vessel-source Pollution Resulting from Accidents, Dumping Protocol for Dumping Activities at Sea, and the Land-based Pollution Protocol. No protocol for fishing or for protection of marine mammals was adopted.880 There is no operative provision in the Bucharest Convention that is parallel to Part XII of the LOSC or reflective of the 1992 CBD creating a separate and distinct duty for the protection of marine living resources, habitats or biodiversity. For example, the Cartagena Convention for the Wider Caribbean Region included a provision mandating the protection of fragile ecosystems and habitats.881 The only express

877 Id. at 52. 878 Id. 879 Specifically the Preamble makes reference to the Convention on Prevention of Marine Pollution by Dumping of Wastes and Other Matter of 1972 as amended (“London Dumping Con- vention”); the International Convention on Prevention of Pollution from Ships of 1973 as modified by the Protocol of 1978 relating thereto as amended (“1973/78 MARPOL Convention”); the Conven- tion on Control of Transboundary Movement of Hazardous Wastes and Their Disposal of 1989 and the International Convention on Oil Pollution Preparedness, Response and Cooperation of 1990. 880 The UNEP Regional Seas Programme does not include fisheries and marine mammals in their legislative programme. 881 See supra note 822. Marine Biodiversity in the Black Sea 155 reference made to the protection of marine living resources is found in Article XIII of the Bucharest Convention, according to which the Parties “when taking measures in accordance with this Convention for the prevention, reduction and control of the pollution of the marine environment of the Black Sea, shall pay particular attention to avoiding harm to marine life and living resources, in particular by changing their habitats and creating hindrance to fishing and other legitimate uses of the Black Sea, and in this respect shall give due regard to the recommendations of competent international organizations” (Emphasis added). This provision fails to establish a clear “stand alone” duty on the Parties to take measures to actively protect marine living resources, instead placing protection of marine living resources in a subsidiary position. It only requires that the Parties “pay attention to avoiding harm” and even then the objective is not to preserve biodiversity but to protect against “creating hindrance to fishing and other legitimate uses of the Black Sea.” There is no reference in the Bucharest Convention to the 1982 LOSC or the 1992 CBD or other international conventions with direct relevance to the protection of biodiversity. The important legal obligations for the protection of the marine environment and especially vulnerable and fragile marine ecosystems and for marine living resources as codified under the 1982 LOSC were not included in the text of the 1992 Bucharest Convention. Consequently, the Convention remains legally inadequate to provide the necessary legal foundation for creating a sustainable regional regime for the protection and preservation of marine living resources, habitat and biodiversity of the Black Sea. This gap can best be filled by a comprehensive and robust implementing protocol with legal force. Instead, the Parties in 1993 initially adopted the Odessa Declaration, a political instrument, to address existing legal gaps in the Bucharest Convention, and waited another twenty years to adopt a binding instrument for the protection of biological diversity. The 1993 Odessa Declaration,882 which was adopted following the 1992 UNCED, maintained the focus on the prevention of pollution as the primary objective for the protection and preservation of the Black Sea marine environment. However, it for the first time included an express reference to the protection of biodiversity in the Black Sea and made reference to the “spirit” of the 1992 Biodiversity Convention. The soft language of the operative paragraph on natural resources reflected hesitancy towards creating clear objectives for the protection of marine living resources and biodiversity. States were only to encourage the development of comprehensive and coordinated plans for the restoration, conservation and management of living natural resources in the Black Sea,883 and to take appropriate measures for the restoration and conservation of biodiversity in the Black Sea in the spirit of the 1992 Biodiversity Con- vention.884 While the Black Sea States agreed to establish and improve conservation

882 Supra note 501. 883 Paragraph 8. 884 Paragraph 9. 156 Chapter IV areas in the coastal zone of each state before 1996,885 the Declaration was silent on the creation of marine protected areas beyond coastal zones.

5.3 The Black Sea Biodiversity and Landscape Conservation Protocol to the Convention on the Protection of the Black Sea against Pollution The Black Sea Biodiversity and Landscape Protocol was adopted in 2002 and entered into effect in 2011.886 It consists of eighteen articles and three annexes. Similar to the SPAW and SPAMI Protocols it is a hybrid instrument incorporating aspects of the principal international conservation conventions, the 1992 Biodiversity Conven- tion, with the addition of the 1998 PEBLDS, as reflected in its title.887 The Black Sea Biodiversity Protocol adopted similar approach as the SPAW and SPAMI biodiversity protection protocols with some notable differences. One important characteristic of the Black Sea Biodiversity Protocol is its application to both the Black Sea proper and the Azov Sea, the latter having been excluded from the Bucharest Convention and the other Protocols. Extending the geographic scope of the Protocol to include the Azov Sea is essential to ensure a truly regional, harmonized and co-operative legal framework for the protection of marine living resources and biodiversity, especially those of a transboundary nature. The purpose of the Black Sea Biodiversity Protocol is to “maintain the Black Sea ecosystem in the good ecological state and its landscape in the favourable conditions” [sic] as well as to “preserve and to sustainably manage the biological and landscape diversity of the Black Sea in order to enrich the biological resources.”888 The objective of achieving a “good ecological state” is understood to mean a return to the state of the Black Sea marine environment during the 1960s and also to actively “enrich” the level of biodiversity. Furthermore, the Protocol is to serve as the legal instrument “for developing, harmonizing and enforcing necessary environmental policies, strategies and measures in preserving, protecting and sustainably managing nature, historical, cultural and aesthetic resources and heritage of the Black Sea states for present and future generations.”889 Although the intergenerational principle was adopted as part of the application of the principle of sustainable development in the 1996 Black Sea-SAP890 the Biodiver- sity and Landscape Protocol marked the first time it was incorporated into a Black

885 Paragraph 10. 886 Supra note 60. 887 The PEBLDS is a twenty-year strategy (1996–2016) for the entire continent of Europe to implement the 1992 Biodiversity Convention in Europe by filling in gaps and harmonizing nature conservation initiatives. Available at http://www.peblds.org/. 888 Article 1(1). 889 Article 1(2). 890 Article 8 of the Black Sea-SAP specifically provided that “the concept of sustainable development shall be applied, by virtue of which the carrying capacity of the Black Sea ecosystem is not exceeded nor the interests of future generations prejudiced.” Marine Biodiversity in the Black Sea 157

Sea legal instrument. While the Black Sea Biodiversity Protocol adopted verbatim the definition of “biological diversity” as provided by the 1992 CBD891 the Protocol cannot be characterized as a complete regional reiteration of the latter. For example, the objectives of these two instruments differ. The 1992 CBD provides for the “conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources . . .” 892 The Black Sea Biodiversity and Landscape Protocol makes no reference to the principle of fair and equitable sharing of genetic resources. Rather, the common purpose is to maintain the Black Sea ecosystem and its landscape and to protect, preserve and sustainably manage the biological and landscape diversity of the Black Sea. Furthermore, the Protocol does not contain any provisions related to genetic technology. Importantly, like the SPAMI and SPAW Protocols the Black Sea Biodiversity and Landscape Protocol creates a set of holistic, integrated and comprehensive duties to be undertaken by the Parties. These include: the duty for the Parties to protect, preserve, improve and manage in a sustainable and environmentally sound way areas of particular biological or landscape value, notably by the establishment of protected areas . . .;893 to ensure that species in the protected areas are maintained at favorable conservation status and habitats in a state close to undisturbed;894 sustainable use of species of economic importance;895 and to restore and rehabilitate damaged areas of previously high biodiversity and landscape value.”896 The Black Sea Biodiversity and Landscape Protocol also requires the Parties to identify and compile inventories of the components of biological and landscape diversity,897 a list of species, landscapes and habitats of the Black Sea importance,898 as well as a list of special measures to protect species listed in Annex II.899 The Black Sea Biodiversity and Landscape Protocol further includes a provision for exemption of traditional activities meeting certain criteria,900 a duty to inform the public on the value of protected areas, a duty to promote public participation and information on the Protocol,901 a responsibility for the Parties to provide financial support according to the capabilities,902 and the

891 Article 2(d) of the Black Sea Protocol defines “biological diversity” as the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems as defined by Article 2 of the Convention on Biological Diversity.” 892 Article 1. 893 Article 4(1)(a). 894 Article 4(1)(b). 895 Article 4(1)(c). 896 Article 4(1)(d). 897 Article 4(1)(e). 898 Annex II. 899 Annex III. 900 Article 8. 901 Article 9. 902 Article 12. 158 Chapter IV requirement that the Parties to co-operate in conducting scientific research, undertake joint scientific programmes and projects.903 Other provisions which have been adopted mutis mutandis from the SPAW and SPAMI Protocols include a provision for the Parties to adopt the necessary measures to prevent or regulate the international or accidental introduction of non-indigenous species or genetically modified organisms,904 to use environmental impact assessments, to use criteria and objectives to be regionally developed pursuant to the Convention and international experience using as an example the Convention on Envi- ronmental Impact Assessment in a Transboundary Context (Espoo Convention).905 The Black Sea Biodiversity and Landscape Protocol distinguishes itself from most other Protocols by requiring that the Parties develop a legal instrument of integrated coastal zone management as part of their duty to encourage intersectoral interaction at the regional and national levels.906 Furthermore, the Black Sea Biodiversity and Landscape Protocol states the responsibility of each of the Parties to fulfill their international obligations for the protection and conservation of the Black Sea, and the requirement for each Party to adopt rules and regulations on the liability of damage caused to the biological and landscape diversity cause by natural or juridical person. Each Party must ensure that its laws “facilitate” legal action and the obtaining of “prompt and adequate compensation or other relief ’ for damages caused by human activities or pollution. The Protocol also mandates that the Parties “co-operate in developing and harmonizing their laws, regulations and procedures relating to liability, assessment of and compensation for damage caused by human activities and/or pollution . . . in order to ensure the highest degree of deterrence and protection for the biological and landscape diversity of the Black Sea as a whole.”907 The SPAMI and the SPAW Protocols did not address the important issue of liability and compensation for environmental damage.

903 Article 10. 904 Article 5. One difference is that the Black Sea Biodiversity and Landscape Protocol employs the 1992 CBD terminology of “genetically modified organisms” whereas the SPAMI and SPAW Protocols employed the term “species.” The former would arguable have a broader range of inclusion. 905 Article 6. The Convention on Environmental Impact Assessment in a Transboundary Con- text, 25 Feb. 1991, 1989 U.N.T.S. 309 (1991), as amended in 27 Feb. 2001 by COP Decision II/14; and second amendment adopted by COP Decision III/; and the Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a Transboundary Context , 23 May 2003 (“SEA Protocol”). See Timo Koivurova & Ismo Pölönen, Transboundary Environmental Impact Assessment in the Case of the Baltic Sea Gas Pipeline, 25 intl j. mar. & coastal l. 151–181 (2010); Simon Marsden & Jan De Mulder, Strategic Environmental Assessment and Sustainability in Europe – How Bright is the Future? 14 Rev. eur comm. & int’l envt. L. 50–62 (2005). 906 The language in Article 7 at first glance may not appear to create such a duty but upon close reading the Parties appear to be required to adopt an ICZM instrument. Specifically: The Contracting Parties shall encourage introduction of intersectoral interaction on regional and national levels through the introduction of the principles and development of legal instrument of integrated coastal zone management seeking the ways for sustainable use of natural resources and promotion of environmentally friendly human activities in the coastal zone. 907 Article 11(1)–(4). Marine Biodiversity in the Black Sea 159

The text of the Protocol did not include any reference to the establishing a network of protected areas, which is included in both the SPAW and SPAMI Protocols, and is one of the core elements of the PEBLDS, the EC Habitats Directive Natura 2000, as well as the 2002 WSSD Johannesburg Plan of Implementation.908 However, the Implementation Strategic Action Plan provided for the development of a network of Black Sea reserves, as discussed below.

5.4 Black Sea Biodiversity and Landscape Strategic Action Plan According to article 4(6) of the Black Sea Biodiversity and Landscape Protocol the Contracting Parties to the Bucharest Convention were required to adopt a strategic action plan for the Protocol within three years of the Protocol coming into force. However, taking a practical approach, without waiting for the Protocol to come into effect, the Parties prepared a strategic action plan. The Black Sea Biodiversity and Landscape Protocol Strategic Action Plan (BSBLCP-SAP) 909 adopted specific actions with set timetables. For example, BSBLCP-SAP includes references to the decisions of the 2002 WSSD, including that of halting the loss of biodiversity by 2010, which had not been included in the text of the Black Sea Biodiversity and Landscape Protocol. The BSBLCP-SAP also makes reference to the MSFD,910 which also had not been included in the text of the Protocol. The core of the BSBLCP-SAP requires that specific actions be taken within specified dates to fulfill seven core objectives.911 Under the heading of “Biodiversity and Habitat Conservation” in Part 5.2, the BSBLCP-SAP outlines in detail three key objectives: first, to prevent appearance of new threatened species and to halt the losses of known threatened species by 2010;912 second, to increase and improve manage-

908 Paragraph 32(c) provides for States to inter alia “Develop and facilitate the use of diverse approaches and tools, including the ecosystem approach, the elimination of destructive fishing practices, the establishment of marine protected areas consistent with international law and based on scientific information, including representative networks by 2012 and time/area closures for the protection of nursery grounds and periods, proper coastal land use and watershed planning and the integration of marine and coastal areas management into key sectors.” 909 Available at http://www.blacksea-commission.org/Main.htm. 910 Supra note 564. 911 These objectives are: Objective 1: to prevent appearance of new threatened species and to halt losses of currently; Objective 2: to increase, where appropriate, territories and improve management of protected area, with particular attention to marine protected area, and manage them in a sustainable and environmentally sound way; Objective 3: Restore and Rehabilitate Damaged Areas of Previously High Biodiversity Value; Objective 4: Promote ecosystem approach to all human activities in the area of the Protocol in particular in exploitation of living marine resources by introducing sustainable practices and eliminating harmful practices; Objective 5: to preserve restore and maintain in good quality condition the landscapes of high nature; Objective 6: to harmonize the relationship between landscape features and socio-economic development; and Objective 7: to develop and introduce comprehensive system for assessment of impact of human activities and rehabilitation measures on the Black Sea ecosystem for decision and policy makers and to ensure comprehensive and up-to-date presentation of the Black Sea on the Pan-European scale and in the context of European Marine Framework Strategy. 912 Objective 1. 160 Chapter IV ment of protected areas, in particular marine protected areas;913 and third, to restore and rehabilitate damaged areas of previously high biodiversity value.914 However, in practice many of the target dates for fulfilling these objectives have lapsed unfulfilled.915 However, with the recent entry into force of the Black Sea Biodiversity and Landscape Protocol a new SAP will have to be developed and adopted by 2014. Fur- thermore, the new SAP should give priority to establishing a comprehensive network of MPAs in the Black Sea taking into account the Aichi Biodiversity Targets916 and the EU biodiversity strategy.917 Most of the detailed actions to be taken under the Black Sea Biodiversity and Landscape Protocol involve the listing of species and habitats as well as establishing common criteria and methodological guidelines. However, in relation to protected areas, for the first time the BSBLCP-SAP made reference to “networks of Black Sea Reserves,” or referred to in the 2009 Implementation Report, Black Sea Ecological Network, and emphasizes the designation of transboundary marine protected areas alongside national marine protected areas.918 The BSBLCP-SAP identifies the ecosystem approach and ICZM as the two main tools to be applied in its implementation. However, there is no mention of specific ICZM tools such as marine spatial planning, a key aspect of ICZM in Europe through the Marine Strategy and other regional seas programs. While at the time neither the Black Sea Biodiversity and Landscape Protocol or its SAP was legally effective, the Black Sea Commission, through its Secretariat, was active in taking measures. In relation to designation of marine protected areas, including in transboundary areas, an area in between Bulgaria and Romania, Vama Veche to Cape Kaliakra, in the Danube Reserve has been proposed as a site for a transboundary marine protected area. Furthermore, in 2009 the Phyllophora field of Zernov in the northwestern part of the Black Sea located in Ukrainian waters was designated as marine protected area.919

913 Objective 2. 914 Objective 3. 915 For example, under para. 5.2 Biodiversity and Habitat Conservation by the year 2007 the Parties were to make inventory of the biological species in the BSBLCP Area, create of the Register of the Species in the BSBDLCP and establishing a mechanism for regular update of the Register; and by the year 2008 to make inventory, classification and mapping of habitats in BSBLCP area according to commonly agreed criteria (e.g. EUNIS) and methodology and based on shared Geo- graphic Information System (GIS). These actions have not been completed. 916 See supra note 787. 917 See supra note 861. 918 Objective 2 (a) and (b). 919 Yuschenko VA. Presidential order #1064/2008, On declaring an area of natural waters of the Black Sea a botanical preserve of state-wide importance “Zernov’s Phyllophora Field,” 21 November 2008. Zernov’s Phyllophora field is the first offshore, fully marine MPA in the Black Sea, and it is the largest with a total area of 402,500 ha, covering 12.5% of the northwestern shelf of the Black Sea. Eduard F. Kostylev, Fedor P. Tkachenko & Irina P. Tretiak, Establishment of “Zernov’s Phyllophora field” marine reserve: Protection and restoration of a unique ecosystem, 53 Ocean & Coastal Mgmt. 203–208 (2010). Marine Biodiversity in the Black Sea 161

Source: Guidelines for the Establishment of Marine Protected Areas in the Black Sea-Version 3920 Map 3. Location of Zernov’s Large Phyllophora Field Botanical Reserve

To develop a network of marine protected areas in the Black Sea, the Black Sea Commission had developed a set of guidelines that were not, however, adopted. In addition, the first Black Sea Red Data Book was published in 1999 listing 158 species. It was recently updated with a total of 259 species are enlisted so far with identified status based on IUCN criteria.921 Further, the Black Sea Commission conducted a Feasibility Study for an ICZM instrument to the Bucharest Convention. The study concluded that within 2–5 years the Black Sea region should develop a number of “soft law” legal instruments such as an ICZM Declaration, a Code of Practice (ICZM Guidelines) and an Action Plan. In the long-term (5–10 years), the study suggested that the BSC could consider developing a legally binding instrument, most likely in the form of a protocol to the Bucharest Convention. The same study also recommended the development of a Spatial Planning Methodology.

6. Discussion

The development of the global legal framework for the protection of biodiversity began with the early international conservation agreements of the 1970s. While these ICAs were important for initiating conservation actions, they did not create a harmonized overarching system for environmental protection. Instead they created a patchwork of global instruments that provided the processes for the protection of flora, fauna and habitat, by imposing trade restrictions or taking conservation actions by the designation of specific areas for protection. As important as these ICAs were for conservation, they did not, however, create an independent obligation to protect biodiversity, a concept that was introduced in later years with the 1992

920 Guidelines for the establishment of marine protected areas in the Black Sea, supra note 818. 921 Available at http://www.grid.unep.ch/bsein/redbook/index.htm. 162 Chapter IV

CBD.922 Further, in relation to the marine environment, Part XII of the 1982 LOSC was the first global instrument to establish a clear duty for States to protect the marine environment,923 which included rare and fragile ecosystems.924 However, it was negotiated and adopted before the 1992 Rio Declaration925 and Agenda 21, and the 1992 CBD. As a result by the 1990s the 1982 LOSC had legal gaps. Specifically, there was no reference to biodiversity, marine protected areas or to key principles and approaches, such as the precautionary principle, the integrated ecosystem approach, and no provisions for the establishment of marine protected areas. On the other hand, somewhat paradoxically, the 1992 CBD, while adopted during the 1992 UNCED, did not create a firm legal obligation for the protection of biodiversity or for the establishment of marine protected areas. Consequently, the global framework for the protection of marine biodiversity lacked a holistic legal framework with clear legal obligations, applicable principles and implementation modalities such as marine protected areas. For this reason the regional level emerged as a critical step for filling these gaps. The SPAW Protocol for the Wider Caribbean Region926 and the SPAMI Protocol for the Mediterranean Sea927 exemplify how the regional approach can incorporate and harmonize the web of global conservation instruments, fill existing legal gaps and ultimately meet the obligation of States to protect the marine environment. Both of these protocols provided a model for other regional seas, including the Black Sea. Both protocols went beyond the legal mandate of the 1992 CBD and established a clear obligation to protect marine biodiversity. The two protocols incorporated the key principles of post-1992 international environmental law and established unam- biguous obligations for the Parties to protect marine biodiversity, principally through the establishment of marine protected areas. Likewise, the EU has also developed a strong legal framework for the protection of marine biodiversity under the Habitat Directive928 and Natura 2000.929 In regard to the Black Sea, the entry into force of the Black Sea Biodiversity and Landscape Protocol in 2011 marked significant progress for the Black Sea States in fulfilling their duty to protect the marine environment under the 1982 LOSC, customary international law and the Bucharest Convention. The Protocol is a comprehensive instrument reflective of best legal practices for protection of marine biodiversity. In many aspects it is on par with the SPAW and SPAMI Protocols, and in some respects exceeds them, particularly as it is the first protocol to address the issue of liability

922 Supra note 55. 923 Supra note 403. 924 Id., Article 194(5). 925 Supra note 208. 926 Supra note 56. 927 Supra note 90. 928 Supra note 59. 929 Supra note 858. Marine Biodiversity in the Black Sea 163 and compensation for environmental damage. In fact, the Black Sea Biodiversity and Landscape Protocol could provide a model of best legal practices for other regional seas which either lack a separate legal instrument for the protection of biodiversity or have a weak instrument in need of being updated to meet best legal practices. One of the important components of the Protocol is the provision for the development of an ICZM instrument.930 However, the Protocol does not specifically require that the instrument developed by the Black Sea States be binding. There is an argument to be made that, in light of past experience, the phased approach, as recommended by the Black Sea Commission Feasibility Study, in developing ICZM practices may actually produce better results than going through the process of expending time and effort on negotiating a binding legal instrument whose entry into force could take up to a decade. The use of soft law instruments such as declarations, guidelines and codes of practice that could possibly lead to a legally binding instrument, may be more functional and produce more immediate results. The ICZM is a management tool that is likely to change over time based on scientific or other developments. Consequently, an important advantage of using “soft law instrument” over binding one in this case would allow for adaptive changes, should they be necessary. On the issue of establishing a liability and compensation system the Protocol requires the Parties “to co-operate in developing and harmonizing their laws, regulations and procedures relating to liability, assessment of and compensation for damage caused by human activities and/or pollution.”931 Liability and compensation for environmental damage is a legal issue and requires legal expertise. A Black Sea Legal Advisory Group would be able to provide advice to the Black Sea Commission on developing a regional mechanism of cooperation as well as give support in promoting the harmonization of laws at the national level. For example, as part of the process of harmonization, the Black Sea State could adopt a common set of guidelines on liability and compensation prepared with the support of the Legal Advisory Group. Another possibility would be to develop a regional mechanism based on the liability and compensation schemes developed for vessel-based pollution, including a regional compensatory fund.932 The fund could be financed from individual Black Sea State contribution of a pre-determined percentage from fines that are imposed

930 Supra note 906. 931 Supra note 907. 932 The 1971/1992 International Fund for Compensation for Oil Pollution Damage (FUND), was adopted to provide supplementary compensation for oil pollution damage not covered under the 1969/1992/2000 International Convention on Civil Liability for Oil Pollution Damage (CLC). See infra notes 1284–1285. The funds are financed by a levy imposed on persons or entities that import oil in an IOPC members State by sea transport. The United States established a separate oil pollution compensation system known as the ‘Oil Spill Liability Trust Fund’ under the Oil Pollution Act of 1990 (OPA). The Fund is financed through a tax on each barrel of oil transported in US waters, a levy imposed on the oil industry and from fines collected. In general see Z. Oya Özcayir, Liability for Oil Pollution and Collisions (1998). 164 Chapter IV at the national level. Such a regional mechanism for liability and compensation for environmental damages could provide a model for other regional sea programmes. The lack of a network of marine protected areas is a significant gap in the framework for the protection of Black Sea marine biodiversity, and in particular for Black Sea cetaceans. The 1992 CBD, including its recent Aichi Biodiversity Targets, the ACCOBAMS AGREEMENT, the EU Habitats Directive and Natura 2000 together with the Black Sea Biodiversity and Landscape Protocol have collectively established a clear legal foundation for the Black Sea States to take the necessary action in establishing a network of Black Sea marine protected areas. In fairness, the slow pace in establishing marine protected areas is a global problem and not unique to the Black Sea. Nonetheless, the cumulative impact of these instruments reflects a clear global consensus for the need to establish marine protected areas, which would apply equally in the Black Sea. The ACCOBAMS AGREEMENT was adopted to address the scientifically identified need to protect Black Sea and Mediterranean cetaceans.933 The linkage the AGREEMENT creates between the Black Sea and the Mediterranean is important as Black Sea cetaceans migrate between these two seas. And while Russian accession to ACCOBAMS would provide a harmonized approach to the transboundary protection of Black Sea cetaceans, the same outcome can, nevertheless, be obtained otherwise. The Black Sea Biodiversity and Landscape Protocol includes within its mandate the protection of cetaceans,934 which is also the objective of ACCOBAMS. Thus the objective of ACCOBAMS could be indirectly fulfilled by the Protocol.935 Furthermore, the objective of the Black Sea Biodiversity and Landscape Protocol includes protection co-operative protection of cetaceans though the establishment of marine protected areas, which overlaps with the objective and methodology of the ACCOBAMS AGREEMENT. Moreover, the MOU that was concluded between the Black Sea Commission and the ACCOBAMS AGREEMENT936 Secretariat will ensure the harmonized approach of these two instruments over a geographical area that includes the Mediterranean migratory route for cetaceans. Once again, this highlights the importance of a regional approach. In addition, given the ecological link between the Black Sea and Mediterranean Sea, enhanced co-operation between the Mediterranean Sea RAC-SPA and the Black Sea Secretariat for the designation of a network of MPAs would further promote a harmonized approach and promote greater inter-regional co-operation. This is particularly important for the protection of marine mammals that migrate between

933 Supra note 733. 934 Supra note 40. Article 4(1)(b) requires the Black Sea States to take the necessary measures to protect species within the protocol area at a favorable conservation status and habitats close to undisturbed. 935 The purpose of ACCOBAMS is for the Parties to take co-ordinated measures to maintain a favorable status of conservation for cetaceans. Supra note 736. 936 Supra note 753. Marine Biodiversity in the Black Sea 165 these two seas. The RAC-SPA has both technical and management experience that could be applied to the Black Sea. The Black Sea has a unique ecosystem that includes natural sites that could very well meet the criteria to be designated as a World Heritage Site under the World Heritage Convention.937 Consideration could also be given to declaring the Black Sea, or at least part of it, such as Phyllophora field as a World Heritage Site. This would provide for greater global recognition of the ecological importance of the Black Sea and promote its international protection. The most difficult challenge may be in expediting the Black Sea States to take action to establish marine protected areas. In this regard, civil society has an important role to play in the Black Sea. There is already a robust network of Black Sea environmental NGOs actively participating in the meetings of the Black Sea Com- mission and Secretariat. Either in collaboration or separately international NGOs, such as the World Wildlife Fund (WWF) and Greenpeace, and Black Sea NGOs could enhance public awareness on the state of loss of biodiversity in the Black Sea and the importance of establishing marine protected areas. In addition to awareness raising the NGOs could galvanize public pressure to be placed on the individual Black Sea States to take action. Building public awareness and pressure on Black Sea governments does not necessarily require large funding resources. Readily available and relatively low-cost tools are available, especially through electronic medium that can be used to create public opinion strong enough to pressure the Black Sea governments. One recommendation would to conduct a study examining the role of NGO activities in relation to the protection of the Black Sea environment and assessing how the NGO community can be more effective in mobilizing the Black Sea States to take the necessary actions for protection of biodiversity and establishment of marine protected areas. In summary, the entry into force of the Black Sea Biodiversity and Landscape Protocol has placed the Black Sea States on track to fulfill their international and regional obligations to protect marine biodiversity. However, there is still much work that lies ahead, such as developing ICZM instruments, developing a liability and compensation system and establishing a network of marine protected areas. There is clearly a role for legal experts to work with the Black Sea Commission in developing the liability and compensation system that could be accomplished by creating a Black Sea Legal Advisory Group. Furthermore, the voice and power of the public, through NGOs, can play a key role in moving the Black Sea States to take the necessary steps to implement obligations undertaken, such as establishing a network of marine protected areas in the Black Sea.

937 Supra note 713.

Chapter V

Sustainable Fisheries Governance and Regional Co-operation for the Black Sea

1. Introduction

Regional co-operation in the Black Sea for sustainable fisheries management has been an on-going but unsuccessful effort since the late 1950s when the first regional convention for fisheries for the Black Sea was adopted. Once renowned for its abundance in marine living resources, by the 1980s fish stock in the Black Sea had plummeted. The first assessment of fish stocks and fisheries, which was completed with the 1996 Black Sea-TDA,938 identified overcapitalization, overexploitation (especially of anadromous stock), gaps in information, degraded ecosystems, over-fishing and habitat destruction, and inadequate fisheries enforcement as critical transboundary problems for the Black Sea fisheries.939 The primary causes for the decline in fish stocks for a number of the fish stocks were illegal fishing and use of destructive harvest techniques, loss of valuable spawning and nursery habitats, eutrophication and pollution and the lack of regional cooperative fisheries management.940 Specifically, over-capitalization and over-exploitation of fish stocks and the lack of adequate fisheries enforcement were highlighted as the principal problems. The 1996 Black Sea-TDA underlined the transboundary and shared nature of fisheries resources in the Black Sea that “require cooperative management actions by states if they are to be managed sustainably.”941 One of the tools identified by the 1996 Black Sea-SAP to address the decline in fish stock and the problem of unsustainable fisheries practices was the adoption of a regional fisheries instrument. The second Black Sea-TDA completed in 2007 indicated that while data showed some recovery in certain fish stocks, overall the management of shared fish stocks in the Black Sea was still inadequate, noting that the cooperative efforts needed to assure progress were not strong enough. The 1996 Black Sea-TDA had also recognized

938 See supra note 40. 939 Id., at 21. 940 V.A. Shlyakhov & G.M. Daskolov, The State of Marine Living Resources, in State of the Environment of the Black Sea, supra note 274, at 321–364. 941 Supra note 40, at 21.

Nilufer Oral, Regional Co-operation and Protection of the Marine Environment Under International Law, pp. 167–199. ©2013 Koninklijke Brill NV, The Netherlands. ISBN 978-90-04-25085-7. 168 Chapter V that “virtually all” Black Sea fisheries were transzonal-straddling,942 requiring the cooperative management actions by the States.943 The 2009 Black Sea-SAP identified a number of high Ecological Quality Objec- tive (EcoQO)944 priorities for fisheries and living resources of the Black Sea. These included the adoption and implementation of a regional agreement for fisheries and conservation of living resources of the Black Sea that included a short-term target to introduce a quota regime for turbot and other demersal fish stocks and a mid-term target to establish remote sensing (satellite) system for observing and controlling fishing operations at sea. Furthermore, the 2009 Black Sea-SAP urged the introduction of management, economic and legal instruments to ensure increased production from environmentally friendly mariculture that would decrease fishing pressure. And, lastly it sought the development of regulations aimed at decreasing by-catch levels.945 The Black Sea Commission Report on the State of the Black Sea Environment completed in 2007 concluded that the lack of effective control measures coupled with highly variable stock dynamics would “quite likely lead to a sharp stock decline in the future” and that [i]n order to avoid this risk and to achieve sustainable development of fisheries in the Black Sea, implementation of a regional fisheries management strategy is necessary.”946 Despite a clear need and a commitment by the Black Sea States under the 1996 Black Sea-SAP, no regional fisheries instrument had been adopted by the end of 2012. The lack of progress in developing a regional regime for sustainable fisheries can be partially attributed to the failure to include fisheries as part of the UNEP Regional Seas Programme Consequently, when the Bucharest regional framework for protection and preservation of the Black Sea was created it excluded fisheries. At the global level the 1982 LOSC provisions on marine living resources and the 1995 FSA947 are of general relevance to the Black Sea. However, because Black Sea fish stocks are principally shared between EEZs, with no highly migratory of straddling fish stocks there is limited application of the 1995 FSA. This in turn places additional responsibility on the Black Sea States to fill this gap and develop and implement a strong regional regime to promote sustainable fisheries management.

942 The 1996 Black Sea-TDA was completed before all of the Black Sea EEZs had been established. 943 Supra note 40. 944 An Ecological Quality Objective is defined as “A desired level of ecological quality relative to predetermined reference levels.” Id., at 18. 945 Id., at 24–28. 946 Shlyakhov & Daskalov, supra note 940, at 358. 947 Supra note 65. Sustainable Fisheries Governance and Regional Co-operation for the Black Sea 169

2. Development of the International Framework for Co-operation for Management and Conservation of Fisheries

2.1 UNCLOS III and Co-operation in Fisheries Conservation and Management The development of co-operation as a fundamental principle of international environmental law for the conservation, protection and management of marine living resources was one of the significant results of the historic UNCLOS III negotiations that lasted from 1973 until 1982. Improvements in fishing vessels and fishing gear in the 1970s and 1980s made it possible for large factory ships equipped with refrigerat- ing capabilities to fish for tons of fish and for massive purse seine nets to exploit tens of kilometers of sea space, in turn setting the stage for battles over valuable marine living resources. The response of many coastal States to the encroachment of distance fishing fleets was to extend sovereignty over their waters from the traditional three, or in some cases twelve, nautical mile territorial sea to two hundred nautical miles.948 The debates between coastal States that sought to maintain sovereign control over living resources with a two hundred nautical mile territorial sea and the distant water fishing nations who bitterly defended the Grotian rights of high seas freedoms eventually ended in a compromise structured around the creation of the Exclusive Economic Zone (EEZ) in Part V of 1982 LOSC and protection of the marine environment under Part XII of the Treaty. These Parts created a new international regime that had not existed either under the 1958 Geneva Conventions949 or customary international law.950 While authors rightly heralded the creation of the EEZ as arguably the most significant creation of UNCLOS III, perhaps even more significant was the unprecedented emphasis the Convention placed on co-operation for the management and conservation of marine living resources, including article 197 of Part XII and article 123 of Part IX for co-operation in the context of enclosed and semi-enclosed seas. While some critics cautioned that the EEZ operated as an “ocean enclosure” in favor of the coastal State,951 others recognized that “. . . UNCLOS applied certain general constraints to coastal states’ management policies regarding

948 In 1976 the United States enacted the Magnuson-Stevenson Fisheries Conservation and Management Act that extended its fisheries zone from 12 nautical miles to 200 nautical miles in order to preclude foreign flagged fishing vessels from fishing off the coast of the United States. See Nicola Kieves, Crisis at Sea: Strengthening Government Regulation to Save Marine Fisheries, 89 MINN. L. REV. 1876, 1893–1894 (2005); Harry N. Scheiber, Ocean Governance and the Marine Fisher- ies Crisis: Two decades of Innovation and Frustration, 20 VA. ENVTL. L.J. 119 (2001). In 1977 twenty-seven States were claiming 200 nautical-mile fisheries zones. Ann L. Hollick, “The Origins of 200-Mile Offshore Zones,” 71 AM. J. INT’L L. 494–500, 494, fn. 2 (1977). 949 Supra note 188. 950 McConnell & Gold, supra note 402; Lawrence Juda, Changing Perspectives on the Oceans: Implications for International Fisheries and Oceans Governance,” in Bringing New Law to Oceans Waters, 17–27, 20. (Harry N. Scheiber & David D. Caron, eds., 2004). 951 Scheiber, Ocean Governance and the Marine Fisheries Crisis, supra note 948. In 1977 twenty- seven States were claiming 200 nautical-mile fisheries zones. Hollick, The Origins of 200-Mile Offshore Zones, supra note 948, at 494 fn. 2; Juda, Changing Perspectives on the Oceans, Id., at 20. 170 Chapter V their EEZs, such as duties to co-operate.”952 The responsibility of states to co-operate under the 1982 LOSC ranged from co-operation in adopting proper conservation and management measures to preventing over-exploitation,953 to working on marine scientific research,954 to sharing of harvestable allowable catches.955 For the conservation of marine mammals, the only express duty articulated in article 65 is for States to co-operate in the conservation of marine mammals and, in the specific case of cetaceans, to work through the appropriate international organizations.

2.2 Co-operation and Shared Fish Stocks Much of the world fish stock is transboundary and thus shared. The 1982 LOSC distinguishes fish stock occurring within the EEZs of two or more coastal States,956 straddling stocks that are found both within the EEZ and in the area beyond and adjacent to the EEZ of the coastal State,957 and highly migratory fish stocks that are listed in Annex I of the Convention.958 Although not universally accepted, Churchill’s definition of transboundary fish stock appears most useful.959 He sets out six categories of shared fish stocks including stocks that are not highly migratory (no access to high seas) but that straddle between only two or three of more EEZs of coastal States.960 This is the classification that best describes the situation in the Baltic and Black Seas. This classification is important in relation to what if any applicable international framework for sustainable fisheries applies in the Black Sea. The co-operative management of straddling and highly migratory fish stocks was broadly addressed in articles 63 and 64 respectively of the 1982 LOSC. Article 63(1) focuses on co-operation between States for the conservation of the same fish stocks or stocks of associated species that occur in two or more EEZs. In this case “co- operation” is limited to an exhortation for states to either directly, or through an

952 Scheiber, id., at 126 [emphasis added]. 953 Article 61(2). 954 Article 242 (1) established the general duty of States and competent international organizations to promote cooperation for peaceful marine scientific research. And more specifically, Article 244(1) and (2) require that States and competent international organizations publish and disseminate programmes and knowledge from scientific research conducted, and to actively promote the flow of scientific date and information and the transfer of knowledge obtained from such research. 955 Article 62(2) requires the coastal State lacking the capacity to harvest the entire allowable catch to allow other states access to such surplus through agreements or other arrangements. 956 Article 63(1). 957 Article 63(2). 958 Article 64. 959 See Robin Churchill, The Management of Shared Fish Stocks: The Neglected “Other” Para- graph of Article 63 of the UN Convention on the Law of the Sea,” supra note 67. The author makes a distinction between fish stock that is shared between two State referring to these as “bilateral shared stocks” and stock that is shared between three or more States referring to these as “multilateral shared stocks.” Id., at 5–6. 960 Id., at 3, fn. 2. Sustainable Fisheries Governance and Regional Co-operation for the Black Sea 171 appropriate subregional or regional organization, seek to agree on the necessary conservation measures. While there is no duty for the states to actually agree, however, principles of international law do required states to negotiate in good faith.961 No guidance is provided on the content of such co-operative management agreements, such as on applicable allocation principles, conducting and sharing scientific research, or compliance and enforcement efforts other than the general provisions in the 1982 LOSC.962 As pointed out by Churchill, shared fish stocks that migrate only between the EEZs of different States have not garnered the international scientific and academic attention that has been accorded to straddling and highly migratory fish stocks.963 How co-operation will be implemented is left to the initiative of the states.964 This is of particular relevance to the Black Sea since following the Romania v. Ukraine delimitation decision the entire sea is overlain with EEZs, leaving no areas of high seas.965 Despite the expectations that the 1982 LOSC would establish a regime of governance for sustainable fisheries management by the 1990s, the state of global fisheries continued to decline because of over fishing and excess capacity among fishing fleets. The need for improved fisheries conservation, especially for fish stock in the high seas was an important theme of the 1992 UNCED and Agenda 21, Chapter 17. In response to the growing fisheries crises and criticism over the weaknesses in the 1982 LOSC regime for the conservation of straddling and highly migratory fish stock the United Nations convened a Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks in 1993 resulting in the adoption of the 1995 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law

961 North Sea Continental Shelf Cases, 1964 I.C.J. 3. 962 Gordon Munro, Annick Van Houtte & Rolf Wilmann, The Conservation and Management of Shared Fish Stocks: Legal and Economic Aspects, FAO Technical Fisheries Paper 465 (2004) Available at ftp://ftp.fao.org/docrep/fao/007/y5438e/y5438e00.pdf. The authors note that in the absence of an agreement for cooperation in the conservation and management of shared fish stocks found in the respective EEZs of coastal States the general provisions of the 1982 LOSC apply, referring to this as the default option. The authors further observe that the 1982 LOSC does not details on how cooperation is to achieved or give guidance on the management and conservation objectives. Id., at 9. 963 Churchill, The Management of Shared Fish Stocks, supra note 67, at 4–5. 964 Id., at 15–16. 965 Maritime Delimitation in the Black Sea (Romania v. Ukraine) 2009 I.C.J. 61 (Final Judgment of 3 February). See Alex Oude Elferink, Maritime Delimitation in the Black Sea (Romania v. Ukraine); Nilufer Oral, Case Concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine) Judgment of 3 February 2009, 25 INT’L J. MAR. & COASTAL L. 115 (2010) Jon Van Dyke, The Romania-Ukraine Decision and Its Effect on East Asian Maritime delimitations, 15 Oceans & Coastal L. J. 261 (2010); Yoshifumi Tanaka, Reflections on Maritime Delimitation in the Romanian/Ukraine Case Before the International Court of Justice, 56 NETHERLANDS INT’L L. REV. 397 (2009). For a historical perspective of delimitation in the Black Sea see A.G. Oude Elferink, The Law of Maritime Boundary Delimitation: The Case of the Russian Federation (1994). 172 Chapter V of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995 FSA).966 The 1995 FSA set out a detailed implementation agreement for the duty to co- operate in the management of straddling and highly migratory fish stocks under article 63(2) and 64(1) of the 1982 LOSC. The system of co-operation under the 1995 FSA rests on a regional or subregional approach where States are required to engage in co-operation either directly or through the creation of subregional regional fisheries management organizations (RFMOS) or other arrangements.967 The 1995 FSA does not specify the form and structure of these RFMOS but does enumerate the functions of an RFMO.968 Moreover, in Part VI on compliance and enforcement, RFMOs were granted an unprecedented legal competence to board and inspect foreign flagged vessels while on the high seas.969 However, no parallel provisions were included for the co-operative management of shared fish stock that would fall under article 63(1). The United Nations Food and Agriculture Agency (FAO) has played a key role in developing the standards for sustainable fisheries practices. Furthermore, the FAO has long stressed the importance of co-operation in the conservation and management of shared fish stocks. The 1995 FAO Code of Conduct for Responsible Fisheries970 together with its Technical Guidelines971 and Plans of Action,972 while not binding

966 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, supra note 65. See Gordon Munro, “The United Nations Fish Stocks Agreement of 1995: History and Problems of Implementation,” 15 MAR. RESOURCES ECON. 265–280 (2001). In general see, Moritaka Hayashi, The 1995 Agreement on the Conservation and Management of Straddling and Highly Migratory Fish Stocks: Significance for the Law of the Sea Convention, 29 OCEAN COASTAL MGM’T 51 (1996); David A. Balton, Strengthening the Law of the Sea: the New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks, 27 OCEAN DEV. & INT’L L. 125 (1996). 967 Article 8(1)–(6). 968 Article 10(a)–(m). 969 Article 21(1)–(18). 970 FAO, Code of Conduct for Responsible Fisheries, Adopted at the 28th Session of the FAO Conference, Rome, Italy, 31 October 1995. [Hereinafter “Code of Conduct”] According to FAO Con- ference Resolution 15/93, para. (3), the 1993 FAO Compliance Agreement forms an integral part of the 1995 FAO Code of Conduct. 971 Technical Guidelines in Support of the Implementation of the Code of Conduct on Responsible Fisheries. To date the FAO Fisheries Department has published the following Technical Guidelines: No. 1: Fishing Operations; No. 2: Precautionary Approach to Capture Fisheries and Species Introductions; No. 3: Integration of Fisheries into Coastal Area Manage- ment; No. 4: Fisheries Management; No. 5: Aquaculture Development; and No. 6: Inland Fisheries (all available on the FAO Fisheries Department’s website (see note 8 above)). Other Technical Guidelines are still under preparation. Particularly relevant here is: Fishing Operations. 1. Vessel Monitoring Systems (Rome, FAO, 1998), which is Supplement No. 1 to the Technical Guidelines No. 1 (further referred to as FAO VMS Guidelines). See Erik Jaap Molenaar & Martin Tsamenyi, Satellite-Based Vessel Monitoring Systems for Fisheries Management: International Legal Aspects, 15 INT’L J. MARINE & COASTAL L. 65–109 (2000). 972 William Edeson, David Freestone & Elly Gudmundsdottir, Legislating for Sustainable Fisheries: A Guide to Implementing the 1993 Fao Compliance Agreement and 1995 Un Fish Stocks Agreement (World Bank, 2001). Sustainable Fisheries Governance and Regional Co-operation for the Black Sea 173 legal instruments, provide the core guideline for States to use in developing the principles and standards for sustainable fisheries practices national, sub-regionally, and regionally.973 Moreover, according to the FAO, regional co-operation in the management of fisheries is accepted as an important mechanism for implementing and enforcing these standards and principles. Consequently, the Black Sea regional regime for sustainable fisheries practices should at a minimum incorporate the Code of Conduct for Responsible Fisheries and its Technical Guidelines, the details of which will be discussed further on.

3. Implementation of Sustainable Fisheries Governance

3.1 Co-operation through Regional Fisheries Organizations The FAO has long expressed concerns that the non-cooperative management of shared fish stocks would lead to overexploitation.974 To promote co-operation, the FAO has supported establishment of FAO and non-FAO regional fisheries bodies. International co-operation in the management and conservation of shared fish stocks has been implemented by a number of regional fisheries management organizations (RFMO). Some of these RFMOs are species-based such as the 1993 Convention for the Conservation of Southern Bluefin Tuna (SBT Treaty) concluded between Australia, New Zealand and Japan,975 and the International Commission for the Conservation of Atlantic Tuna (ICCAT). Others are geographically based, such as Western and Central Pacific Fisheries Commission (WCPFC), North-East Atlantic Fisheries Commission (NEAFC), Northwest Atlantic Fisheries Organization (NAFO), North Atlantic Salmon Conservation Organisation (NASCO), South-East Atlantic Fisheries Organisation (SEAFO), South Indian Ocean Fisheries Agreement (SIOFA), South Pacific Regional Fisheries Management Organisation (SPRFMO), Convention on Conservation of Antarctic Marine Living Resources (CCAMLR), and the General Fisheries Commission for the Mediterranean (GFCM). Some of these RFMOs pre-date the 1995 FSA,976 and in some cases the 1982 LOSC. However, many were established to carry out the duty to co-operate mandated under the 1995 FSA for straddling and highly migratory fish stocks. These RFMOs have institutionalized co-operation through a systematic mechanism of governance based on legal instruments and governing and advisory bodies where each State is represented. However, none of these RFMOs were established to create mechanisms of co-operation for species of fish found only within the EEZs of two or more

973 Code of Conduct, supra note 970. 974 Papers Presented at the Norway-FAO Expert Consultation on the Management of Shared Fish Stocks, FAO FISHERIES REPORT NO. 695, Supp., 30–42, 30–31 (2002). 975 Convention for the Conservation of Southern Bluefin Tuna, supra note 497. 976 For example, the Inter-American Tropical Tuna Commission (IATTC) was established in 1949. 174 Chapter V

States. The creation of an RFMO in the Black Sea for the co-operative management of shared fish stock within the meaning of article 63(1) of the 1982 LOSC would provide an important model for management of shared fish stocks.

3.2 Principles of Sustainable Fisheries Management Experts have for a number of years suggested several key principles for establishing long-term sustainable fisheries conservation and management including the precautionary principle or approach,977 use of the best scientific evidence available,978 relying on impact assessment for non-target species,979 and dependence on the ecosystem approach.980 Article 6 of the FAO Code of Conduct lists other principles for sustainable fisheries management such as the conservationist approach based on responsible fishing, preservation of fishing resources for present and future generations based on an ecosystem approach,981 reduction of excess fishing capacity and sustainable utilization of fish stocks, and the development and use of environmentally safe fishing gear and practices. More recent developments include advocating

977 The precautionary principle or approach was adopted as Principle 15 of the Rio Declaration during the 1992 United Nations Conference and Environment and Development. It states, in part, “. . . Where there are threats of serious of irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” Freestone and Hey trace the origins of the principle to a German proposal made at the International North Sea Ministerial Conferences and were then introduced to the Oslo and Paris Commissions and then into many global marine fora and regimes. See David Freestone & Ellen Hey Origins and Development of the Precautionary Principle” in The Precautionary Principle and International Law: The Challenge of Implementation 3–15, 3 (David Freestone & Ellen Hey, eds., 1996); See also, David Freestone, Caution or Precaution: ‘A Rose By Any Other Name . . .’?, 10 YB INT’L ENVTL L. 25–32 (1999); Jon M. Van Dyke, The Evolution and International Acceptance of the Precautionary Principle, in Bringing New Law to Ocean Waters 357 (David D. Caron ed., 2004). 978 Article 5 of the 1995 FSA under the general heading of General Principles includes in Article 5(b) the express requirement for the Contracting Parties to ensure that measures adopted pursuant to sub-paragraph (a) to ensure long-term sustainability of straddling fish stocks and highly migratory fish stocks to promote the objective of optimum utilization are based on the “best scientific evidence available” and are “designed to maintain or restore stocks at levels capable of producing maximum sustainable yield . . .” 979 1995 FSA article 5(d). 980 Article 5(d) and (e) of the 1995 FSA make implicit references to the ecosystem approach by making reference to both fish stocks of the same species or those that are either dependent or associated species. See Scott Parsons, “Ecosystem Considerations in Fisheries Management: Theory and Practice,” 20 International Journal of Marine and Coastal Law (2005) 381–422; Erik Jaap Mole- naar, Ecosystem-Based Fisheries Management Commercial Fisheries, Marine Mammals and the 2001 Reykjavik Declaration in the Context of International Law, 17 INT’L J. MAR. & COASTAL L. 561–595 (2002). Molenaar notes that semi-enclosed seas and enclosed seas are especially well suited for ecosystem and ecosystem-based fisheries management. 981 The Code does not expressly employ the terminology of “ecosystem approach” but in paragraph 6.2 in part states that “Management measures should not only ensure the conservation of target species but also of species belonging to the same ecosystem or associated with or dependent upon the target species.” Sustainable Fisheries Governance and Regional Co-operation for the Black Sea 175 the use of market mechanisms such as eco-labeling982 and product certification,983 and privatization of fisheries rights984 as incentives to encourage fishermen and the fishing industry to adopt conservation measures that support sustainable fisheries.985 The precautionary principle stands as perhaps the more controversial yet most significant principle for fisheries management. Challenging the standard approach where scientific uncertainty justified “fishing as usual” practices, the precautionary principle mandates that policy makers adopt protective measures even though scientific uncertainty exists.986 The precautionary principle provides a powerful tool against the use of conflicting scientific data or inherent scientific uncertainty as a justification to continue over exploitation of threatened fish stocks. The burden of proof is shifted to the party advocating exploitation to show the absence of adverse impacts on fish stocks or habitats or related ecosystem. The European Court of Jus- tice adopted the view that scientific uncertainty did not prevent the adoption of fishnet bans by the government in furtherance of conservation and rational exploitation of fisheries resources.987 Whether the precautionary principle has attained the

982 Described as the “the affixing of a label to a product indicating its superior environmental attributes, to inform the consumer of those attributes and encourage product sales, while creating economic incentives for the satisfaction of environmental and social criteria.” See Tracey Cooper, Picture This: promoting Sustainable Fisheries Through Eco-Labeling and Product Certification, 10 OCEAN & COASTAL L. J. 1, 3–4 (2005). 983 Certification is used in conjunction with eco-labeling where a label is added after a product has undergone an environmental assessment and approval by a certifying organization. See Patricia A. Moye, Private Certification Versus Public Certification in the International Environmental Arena: The Marine Stewardship Council and Marine Eco-Label Japan Fisheries Certification Schemes As Case Studies, 43 VAND. J. TRANSNAT’L L. 533, 538 (2009–2010). 984 Nicola Kieves, Crisis at Sea: Strengthening Government Regulation to Save Marine Fisheries, supra note 948. 985 Christopher J. Carr & Harry N. Scheiber, Dealing with a Resource Crisis: Regulatory Regimes for Managing the World’s Marine Fisheries, 21 STAN. ENVTL. L.J. 45, 53 (2002). 986 For example, Article 6 of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Oceans, adopted in Honolulu on 5 Sep- tember 2000, provides detailed instructions for how the Commission is to apply the precautionary approach. These include inter alia application where there are ‘uncertainties relating to the size and productivity of the stocks,” or that the Commission be more cautious when information is uncertain, unreliable or inadequate, stating that “[t]he absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures.” 987 A ship owner challenged EC regulation 345/92 forbidding driftnets of over 2.5 kilometers on the grounds that there was no scientific evidence to justify the ban, and further more that the applicable legislation required that legislation for conservation measures be based on “available information.” The Court found that “the measures for the conservation of fishery resources need not be completely consistent with the scientific advice and the absence of such advice or the fact that it is inconclusive cannot prevent the Council from adopting such measures as deems necessary for achieving the objectives of the common fisheries policy.” Judgment of the Court (Sixth Chamber) of 24 November 1993. Etablissements Armand Mondiet SA v Armement Islais SARL, Case C-405/92, European Court reports 1993 Page I-06133. See also, Nicolas de Sadeleer, The Pre- cautionary Principle in European Community Health and Environmental Law: Sword of Shield for the Nordic Countries, in Implementing the Precautionary Principle: Approaches for the Nordic Countries, Eu and Usa, 10–58 (Nicolas de Sadeleer ed., 2007). 176 Chapter V status of an international legal norm may be becoming an academic debate given the fact that the principle is increasingly finding its way into the operative provisions of international fisheries instruments.988 It has also received the implicit affirmation by ITLOS in the Southern Bluefin Tuna judgment and “hinted” at in the Mox Plant Case before ITLOS.989 The ecosystem approach is quickly replacing the traditional single-species based approached to fisheries management. According to the FAO, the ecosystem approach to fisheries strives to balance diverse societal objectives, by taking into account the knowledge and uncertainties about biotic, abiotic and human components of ecosystems and their interactions and applying an integrated approach to fisheries within ecologically meaningful boundaries.990 Molenaar makes a distinction between the broader ecosystem management of natural resources and that of ecosystem-based fisheries management (EBFM), which he views as a sectoral part of ecosystem management.991 The ecosystem approach was implicitly adopted at the 1992 UNCED in Agenda 21, Chapter 17 on protection of oceans. The 2002 JPOI encouraged States to commit themselves to the ecosystem approach by encouraging “the application by 2010 of the ecosystem approach, noting the Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem and decision 5/6 of the Conference of Parties to the Convention on Biological Diversity.”992 The approach has been adopted implicitly and explicitly in a number of regional and global fisheries instruments including at the regional level the Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR), considered the first international agreement to incorporate the approach,993 and at the global level in the 1982 LOSC, the 1995 FSA and the

988 These include RFMOs established subsequent to the 1995 FSA. 989 Southern Bluefin Tuna Cases, nos. 3 and 4 (New Zealand v. Japan; Australia v. Japan) (27 August 1999), “Request for provisional orders. See also, Simon Marr, The Southern Bluefin Tuna Cases: the Precautionary Approach and Conservation and Management of Fish Resources, 11 EUROPEAN J. INT’L L. 815–831 (2000). Judge Treves in his separate opinion in the Mox Plant Case for provisional measures before ITLOS noted that the language of “prudence and caution” as used by the Tribunal in its Order for Ireland and the United Kingdom to co-operate “hinted” at the precautionary approach. See Separate Opinion of Judge Treves in the Mox Plant Case, supra note 496 para. 9. 990 The Ecosystem Approach to Fisheries, Fao Technical Guidelines for Responsible Fisheries, (Vol. 4, Supp. 223, 2003). 991 Molenaar describes ecosystem management in its broadest sense as involving “a balance of social, economic, environmental, political and other interests” making it, according to the author much more “multi-faceted” than even sustainable development. Whereas, EBFM is a sectoral approach that does not look to the ecosystem as a whole but only that part that involves the specific activity of fisheries. Id., at 572–573. 992 World Summit on Sustainable Development Plan of Implementation (2002), Paragraph 29(d). In addition, according to paragraph 31(c) in accordance with Agenda 21, Chapter 17, States are to inter alia “Develop and facilitate the use of diverse approaches and tools, including the ecosystem approach, the elimination of destructive fishing practices, the establishment of marine protected areas consistent with international law and based on scientific information, including representative networks by 2012 and time/area closures for the protection of nursery grounds and period Available at http://www.un.org/jsummit/html/documents/summit_docs/2309_planfinal.htm. 993 See Adriana Farba & Virgina Gascon, Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR), 23 INT’L J. MAR. & COASTAL L. 567–598, 574 (2008). The authors Sustainable Fisheries Governance and Regional Co-operation for the Black Sea 177

FAO Code of Conduct for Responsible Fisheries.994 The FAO has also endorsed the ecosystem approach to fisheries management in the 2001 Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem995 and the 2003 Guidelines on the Ecosystem Approach to Fisheries (EAF), prepared as a supplement to the Code of Conduct.996 The adoption by the EU of the ecosystem approach to fisheries management in its revised Common Fisheries Policy in 2002 no doubt reflects the growing acceptance and increasingly normative function of the ecosystem-based approach to fisheries management. Moreover, in practice, many of the RFMO’s scientific bodies apply the ecosystem approach. Central to the ecosystem approach to fisheries management is the adoption of a holistic and integrated management system that aims to protect target species as well as non-target species and their habitats by preventing destructive and wasteful non-sustainable fishing practices. At the same time, the ecosystem approach to fisheries management takes into account the social and economic aspects of regulating fisheries and, for this reason, a well functioning EBFM997 will involve the participation of stakeholders, including fishermen. The role of science has been identified as a key factor in the management of fisheries. Scientific research provides important information that facilitates co-operation in the management of shared or highly migratory fish stock.998 Gullard, in his much cited 1980 study, identified two levels of co-operation for the management of shared fisheries: the primary level of co-operation, co-operation in scientific research, and the secondary level, active management of the resources and establishing a joint management programme. The secondary level, according to Gullard, requires:

• a determination of the optimal management strategy through time, including, inter alia, the determination of optimal global harvest over time, • agreement on the allocation of harvest shares among the participating states (or entities), • coordinated implementation and enforcement of the management programme.999

comment that the CCMLR is not considered to be “more” than an RFMO, it nonetheless carries out activities of a regional fisheries organization. Id., at 572, citing Erik J. Molenaar, CCAMLR and Southern Oceans Fisheries, 16 INT’L J. MAR. & COASTAL L. 465–499, 499, (2001). 994 Article 6 of the Code of Conduct, supra note 970. 995 See Report of the Reykjavik Conference on Responsible Fisheries, Fao Fisheries Report No. 658, 2001). The conference, initiated by whaling interests, focused on the relationship between mammals and commercial fisheries. 996 Supra note 971, at 112. The ecosystem approach has been adopted in a number of RFMOs that were established to implement the 1995 UN FSA. See also, Serge M. Garcia & Kevern L. Cochrane Garcia, Ecosystem approach to fisheries: a review of implementation guidelines, 62 ICES J. MARINE SCIENCE 311–318 (2005). 997 Supra note 991. 998 Gordon Munro et al., The Conservation and Management of Shared Fish Stocks: Legal and Economic Aspects, supra note 962. 999 FAO Fisheries Report 693, Supp (2002 Bergen) citing Gullen. 178 Chapter V

As pointed out by Carr and Scheiber, the “main reasons for continuing overfishing and poor management are uncertainty of scientific methods and data, the institutional structure of the fishing industry, and enforcement difficulties.”1000 However, as the authors go on to point out, even if ‘better’ science were available, it would not mean that a mechanistic decision-making process would produce agreement on fishing levels” as “biological imperatives have long been subordinated to economic imperatives . . .”1001 Fishermen may interpret a decline in stock simply as an indica- tion that the fish have migrated elsewhere. The case of the Russian-Norwegian management program for the Barents Sea fisheries is emblematic of most fisheries regime around the world, representing a “ ‘compromise between what can be defended biologically, legitimized politically, and accepted on social and economic grounds.’ ”1002 The consistent failure of the EU Common Fisheries Policy can also be traced to the weak relationship between scientific advice and decisions adopted by the policy-makers, especially in establishing quotas.1003 In the North Sea, despite the existence of science-based fisheries management for some one hundred years, fish stocks continue to be outside the “safe biological limits,” according to experts.1004 Furthermore, difficulties in enforcing regulations exacerbate the existing problems for sustainable management of fisheries. Nevertheless, the objective remains to strengthen the relationship between science and policy and ultimately the regulatory framework for sustainable fisheries.

3.3 Compliance and Enforcement The regulation and management of fishery activities is traditionally based on two principal pillars: prescriptive requirements and enforcement actions. Absent adequate compliance and enforcement measures even the best regulatory framework will fail.1005 Compliance and enforcement is especially challenging at the regional level, particularly in situations involving large marine spaces with multiple sovereign interests. The 1995 FSA contained groundbreaking provisions on strengthening enforcement competence based on strong regional co-operation related to straddling

1000 Scheiber, Ocean Governance and the Marine Fisheries Crisis, supra note 948, at 135. 1001 Id., at 56. 1002 Id. 1003 See also, Tim Daw & Tim Gray, “Fisheries science and sustainability in international policy: a study of failure in the European Union’s Common Fisheries Policy,” 29 MAR. POL’Y 189–197 (2004). The authors discuss the problems and failure in adopting scientific data into the policies of the European Union Common Fisheries Policy, where fish quotas have consistently been determined outside the limits recommended by scientific bodies, such as ICES. 1004 Chris Frid, Odette Paramor & Catherine Scott, Ecosystem-based Fisheries Management: progress in the NE Atlantic, 29 MAR. POL’Y 461–469 (2005). 1005 Christopher C. Joyner, Compliance and Enforcement in New International Fisheries Law, 12 TEMP. INT’L & COMP. L.J. 271, 275–76 (1998); For a collection of articles addressing various facets of environmental compliance and enforcement, see Making Law Work, Environmental Compliance & Sustainable Development, supra note 656. Sustainable Fisheries Governance and Regional Co-operation for the Black Sea 179 and highly migratory species through the mechanism of RFMOs. The key mechanism established by the 1995 FSA was the Regional Fisheries Management Organization (RFMO), whose competence included an enforcement mechanism.1006 This mechanism is considered to be a significant advancement for promoting implementation of the 1995 FSA. However, while few RFMOs have included compliance mechanisms in their regional governance agreement1007 there is an emerging practice in international and regional environmental agreements to include a compliance mechanism.1008 Port State Control (PSC) is one of the key tools for promoting compliance and enforcement of fisheries regulations. However, effective PSC requires close co- operation and imposition of common standards by neighboring States to avoid allowing “ports of convenience” for landing of illegal, unregulated and unreported (IUU) fish. In 2009 the FAO adopted the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing,1009 the objective of which is to prevent, deter and eliminate IUU fishing through the implementation of effective port State measures, and thereby to ensure the long-term conservation and sustainable use of living marine resources and marine ecosystems.1010 Under the Agreement, entry into ports of Parties will be conditional upon providing information that at the minimum includes proof of valid fishing authorization(s) and transshipment authorization(s).1011 State Parties are required to deny entry to their port of vessels where there is proof that they have engaged in illegal, unregulated and unreported fishing.1012 Parties to the Agreement are also required to conduct a minimum number of inspections, to be agreed upon by the Parties, of all fishing

1006 The compliance and enforcement mechanism is found in Part VI of the 1995 FSA. It provide the legal competence for member States to board and inspect the fishing vessels of foreign flagged-vessels on the high seas, which would otherwise not be possible under the 1982 LOSC or customary international law. Joyner, Id.; Erik Jaap Molenaar, Regional Fisheries Management Orga- nizations: Issues of Participation, Allocation and Unregulated Fishing, in) Oceans Management in the 21st Century: Institutional Frameworks and Responses 69–86 (Alex G. Oude Elferink & Donald R. Rothwell, eds., 2004); Rosemary G. Rayfuse, Non-Flag State Enforcement in High Seas Fisheries (2004). 1007 In a detailed overview of compliance mechanisms in different multi-lateral agreements related to protection of the environment Rose identifies the four main components of compliance mechanisms as: (1) Performance Review Information, where there is a review process for national implementation of the multi-lateral agreement; (2) Multi-lateral Non-Compliance Procedures, that involves an institutional structure to assess possible instances of ‘non-compliance’; (3) Non- Compliance Response Measures, which are the measures to be applied in cases of established ‘non-compliance’; and (4) Dispute Resolution procedures. Not all compliance mechanisms include all four of these components. See, Gregory Rose, Inter-linkage between Multi-Lateral Environmental Agreements: International Compliance Cooperation, in Paddock et al., Compliance and Enforce- ment supra note 656, at 3–33, 5. 1008 Id. 1009 FAO Res. 12/2009, U.N. FAO, 36th Sess., approving the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (2009). 1010 Article 2. 1011 Article 8. 1012 Article 9. 180 Chapter V vessels entering their ports to ensure meeting the objective of the Agreement.1013 The Agreement has not yet attained the required twenty-five ratifications to enter into force.1014 In the Black Sea Turkey and the Russian Federation are the only two States that have signed it. The Black Sea Commission, at the initiative of these States, should encourage the remaining four Black Sea States to sign the Agreement. This will provide the Black Sea States with a common set of standards and sanctions for imposing port state control against vessels engaged in IUU fishing in the Black Sea. With only six States, in the case of the Black Sea, port state enforcement should be comparatively simple since. Furthermore, close co-operation should be established among the different surveillance mechanisms in the Black Sea and more importantly, the enforcement agencies. However, currently there is no regional enforcement co-operation among the Black Sea States. In 2001 the Black Sea States established the Black Sea Naval Co-operation Task Force (Blackseafor) as an alliance among the navies of the six Black Sea States for peaceful purposes. One of its goals was joint action in protection of the marine environment.1015 It could have served as an enforcement body for fisheries. The Blackseafor, however, has not been active for some time and has not engaged in any activities related to the environment, such as surveillance or enforcement. Other important approaches for co-operative fisheries management mechanisms include monitoring and surveillance technological such as Automated Information Systems (AIS), Long Range Tracking (LRIT), and vessel traffic monitoring information systems (VTMIS), which can be used to support port state control.1016 A number of RFMOs are implementing some or all of these aids to compliance and enforcement. The EU has incorporated maritime surveillance in its recent Integrated Maritime Policy.1017 Vessel monitoring is mandatory for all fishing vessels having a length of fifteen meters or more. These vessels are required to be equipped with a transponder that is linked to a geographic position system (GPS) that can provide information on the vessel whereabouts at regular intervals through a satellite system that transmits

1013 Article 12. 1014 Article 29. 1015 Available at http://www.photius.com/blackseafor/. See also, Cem Gürdeniz, The current naval picture (Paper presented at the Maritime Security Black Sea Conference held 2–3 November, 2005 in Sofia, Bulgaria) (Manuscript on file with author). 1016 Molenaar & Tsamenyi, Satellite-Based Vessel Monitoring Systems for Fisheries Management, supra note 971. The FAO adopted technical guidelines for the use of vessel monitoring systems as a fisheries management tool in monitoring, control and surveillance (MCS). See Fishing Opera- tions 1. Vessel Monitoring Systems, Fao Technical Guidelines for Responsible Fisheries, SUPP. 1 (1998). 1017 Communication from the Commission to the European Parliament, the Council, the Euro- pean Economic and Social Committee and the Committee of the Regions: An Integrated Maritime Policy for the European Union, COM (2007) 575 final. Sustainable Fisheries Governance and Regional Co-operation for the Black Sea 181 information to Fishing Monitor Center (FMC) that each Member State is required to operate.1018 Furthermore, alternative mechanisms are increasingly being used such as trade measures bans based on CITES.1019 Currently there are several species of fishes that are listed as highly endangered under Appendix I of CITES, and a significant number in Appendix II.1020 For example, trade in the valuable caviar of Black Sea and Cas- pian sturgeon is regulated under CITES.1021 However, not all efforts to stop fishing activities through CITES have been successful as demonstrated by the failed attempt to have the highly exploited and valuable bluefin tuna banned by listing it under Appendix I of CITES.1022 In the Black Sea one possibility could be to list the Black Sea Turbot, one of the most commercially valuable and over exploited fish species in the Black Sea in either Appendice I or II of CITES, which would then require Black Sea States to restrict trade of the species.1023

1018 Id., at 5. See also, Commission Regulation (EC) No. 2244/2003 laying down detailed provisions regarding satellite-based Vessel Monitoring Systems, 2003, O.J. (L 333) 17. The responsibility of the FMC is to monitor the fishing vessels flying the flag of the Member State in all waters and ports, to monitor the fishing vessels flagged to member States and to monitor the fishing vessels of non-member States while in their jurisdiction. Id., at article 2. See also European Commission Legal Aspects of Maritime Monitoring & Surveillance Data, Final Report (2008). 1019 Marcus Howard, IUU Fishing: Contemporary Practice, in Oceans Management in the 21st Century: Institutional Frameworks and Responses, 87–106 (Alex G. Oude Elferink & Donald R. Rothwell, eds., 2004); Sonja Fordham & Colby Dolan, A Case study in International Shark Conservation: the Convention on International Trade in Endangered Species and the Spiny Dogfish, 34 Golden Gate U.L.REV. 531(2004). 1020 Species listed in Annex I are those that are not yet endangered but will be unless measures controlling international trade are not taken. Appendix II listing is to prevent depletion of species before reaching the level of needing protection under Appendix I. 1021 All species of sturgeon are listed under either Appendice I or II of CITES. In addition detailed conservation measures have been adopted under CITES. See Res. Conf. 12.7 (Rev. CoP13), and Regional Strategy for the Conservation and Sustainable Management of Sturgeon Populations of the N-W Black Sea and Lower Danube River in accordance with CITES (26 November 2003), available at http://www.cites.org/common/prog/sturgeon/regional_strategy_danube_blacksea.pdf. 1022 Monaco had proposed to list the bluefin tuna in Appendix I of CITES for a complete ban on its international trade. However, the proposal was defeated by a vote of 43 to 72 against the listing. See Proposal to include Atlantic Bluefin Tuna (tunnus thynnus (Linnaeus, 1758)) in Appen- dix I of CITES in accordance with Article II 1 of the Convention (“Monaco Proposal”), available at: http://www.cites.org/common/cop/15/raw_props/E-15%20Prop-MC%20T%20thynnus.pdf; Renee Martin-Nagle, Current Legal Developments Convention on Trade in Endangered Species, 25 INT’L J. COASTAL & MAR. L. 609–620 (2010). 1023 Necati Samsun & Ferhat Kalayci, Survival Rates of Black Sea Turbot (Scophthalmus maeoticus Pallas, 1811) Captured by Bottom Turbot Gillnets in Different Depths and Fishing Seasons Between 1999 and 2004, 5 TURKISH J. FISHERIES & AQUATIC SCI. 57–62 (2005). The Turkish catch for Black Sea Turbot accounts for 72 percent of the total Black Sea Turbot catch. Because of its high commercial value and demand Turkish fishermen traverse into the EEZ of neighboring States without prior permission to fish for turbot. There have been cases where Turkish fishermen have been shot and in one instance killed. See BBC Correspondent, Black Sea or dead sea? 4 Feb. 2003, available at http://news.bbc.co.uk/2/hi/programmes/correspondent/759151.stm; BBC News Demirel regrets fishing clash with the Ukrainians, 23 Mar. 2000, available at http://news.bbc.co.uk/2/hi/ europe/688479.stm, BBC News, Ukraine deports Turkish fishermen, 25 Mar. 2000, available at http://news.bbc.co.uk/2/hi/europe/690549.stm. 182 Chapter V

4. The State of Sustainable Fisheries Management in the Black Sea

4.1 Background Regional co-operation in the Black Sea for fishing dates back to the 1959 Convention Concerning Fishing in the Black Sea (Varna Fishing Convention) concluded between Bulgaria, USSR and Ukraine.1024 Negotiated during the height of the cold war period, Turkey as the sole NATO country bordering the Black Sea did not become a Party to the Convention. Under the 1959 Varna Fishing Convention, the three Contracting Parties had undertaken to co-operate and assist each other in “rational fishing” and to improve fishing techniques with the objective of “maintaining and augmenting the stocks of fish in the Black Sea with a view to increasing the yield.”1025 The 1959 Varna Fishing Convention provided for both size and catch limitations for certain fish including a five-year ban on the capture of sturgeon (Acipenser nudiventris).1026 According to the Convention, a “Mixed Commission” was to be established responsible for adopting measures to regulate fishing “with a view to the conservation and augmentation of the stocks of fish in the Black Sea . . .”1027 In addition, the Commis- sion was responsible for the coordination of scientific research project relating to fishing in the Black Sea,1028 and to exchange information relating to the application of the Convention.1029 Unfortunately, the 1959 Varna Fisheries Convention did not succeed in meeting its long-term objective to maintain and augment fish stocks in the Black Sea. By the 1980s, evidence of decline could be observed and by 1992 twenty of the twenty-six commercial species had been lost, while the remaining species were on the verge of collapse. In 1991 the political situation in the Black Sea had changed dramatically with the disappearance into history of the former-USSR. The lack of high seas in the Black Sea paradoxically creates a greater need for a strong regional legal instrument for promoting sustainable fisheries. As noted earlier, following the maritime delimitation decision of the International Court of Justice

1024 7 July 1959, 486 U.N.T.S. 157. See A.E. Reynolds, The Varna Convention: A Regional Response to Fisheries Conservation and Management, 2 INT’L J. ESTUARINE & COASTAL L. 154–168 (1987). 1025 Article 1. 1026 According to article 5 the minimum size for listed fish were: Beluga (Huso huso) ...... 140 cm Russian sturgeon (Acipenser guldenstaedti) ...... 80 cm Sevryuga (Acipenser stellatus) ...... 75 cm Turbot (Rhombus m a e o t i c u s) ...... 35 cm Shad (A losa kessleri poniica) ...... 16 cm Article 5 of the Convention further required that fish caught below the prescribed minimum size were to be thrown back into the sea. However, the same article also provided for an allowable percentage below minimum size fish that could be kept. No penalty provisions were included for fishermen who exceeded the permitted percentage of under-size catch. 1027 Article 8. 1028 Article 9(3). 1029 Article 9(5). Sustainable Fisheries Governance and Regional Co-operation for the Black Sea 183 between Romania and Ukraine,1030 the entire marine area of the Black Sea is encom- passed within EEZs leaving no area of high seas in the Black Sea. This means that the 1995 FSA has limited applicability in the Black Sea were most fish stocks fall under the category of shared stock as defined under article 63(1) of the 1982 LOSC or highly migratory. There are no straddling fish stocks in the Black Sea that would fall within the scope of article 63(2) of the 1982 LOSC. In the category of highly migratory only two species qualify, the little tuna and the swordfish. However, these are no longer are found in the Black Sea. The bonito (Sarda sarda linnaeus), which migrates between the Mediterranean and the Black Seas, is not listed as a highly migratory fish species under Annex I of the 1982 LOSC. Furthermore, according to article 66 of the 1982 LOSC, the primary interest and responsibility for anadromous stock, which would include the Black Sea sturgeon, is with the state of origin.

4.2 Draft Legally Binding Document for Fisheries and Conservation of the Living Resources of the Black Sea During the 1990s two internationally renowned experts were invited to draft a regional fisheries agreement for the Black Sea.1031 This draft served as the foundation of the Draft Legally Binding Document for Fisheries and Conservation of the Living Resources of the Black Sea (“LBD”) that was prepared by the Black Sea States.1032 The preamble of the draft LBD refers to the key international soft and hard law instruments relevant for sustainable fisheries management, including Chapter 17 of Agenda 21 of the 1992 UNCED,1033 decisions of 2002 WSSD related to sustainable development and use of the marine environment and its resources, and the FAO 1995 Code of Conduct for Responsible Fisheries noting in its introduction that it provided the “necessary framework for national and international efforts to ensure sustainable exploitation of aquatic living resources in harmony with the environment.”1034 While no express reference is made to either the 1982 LOSC or the 1995 FSA, the preamble implicitly affirms Part IX of the 1982 LOSC, exhorting States bordering an enclosed or semi-enclosed sea to co-operate in the exercise of their rights and the performance of their duties to “endeavor to co-ordinate the management of the living resources of the sea and their scientific research policies and to undertake appropriate joint programs of scientific research.” The geographic scope of the draft LBD follows the same geographic boundaries of the Bucharest Convention, excluding the Azov Sea. The agreement applies to “all

1030 Supra note 965. 1031 Professors David Freestone and Patricia Birnie were the international legal experts who prepared the draft for a Fisheries Convention for the Black Sea. A copy of the “Draft Convention for Fisheries and Conservation of Living Resources of the Black Sea” was kindly provided to the author by Professor Freestone. 1032 Available at http://www.blacksea-commission.org/_draftLBDfisheries.asp. 1033 Agenda 21 UN Doc. A/CONF.156/26, reprinted in 31 ILM 874 (1992). 1034 FAO Technical Guidelines for Responsible Fisheries, supra note 66, at iv. 184 Chapter V

living resources,” which is defined in article 3 as “the populations, both those occurring naturally and those artificially propagated, of finfishes, mollusks, crustaceans, algae and other living organisms, excluding waterfowl and mammals.” The stated objective of the draft LBD is to provide for sustainable use of the marine living resources of the Black Sea for present and future generations through “proper conservation, rational use and management . . .” and also to “set up mechanisms for the effective co-operation with the existing international instruments in the field of protection of the biological diversity.”1035 The draft LBD also provides definitions for local and shared stocks, the latter further divided into non-migratory and migratory- shared stock, and highly migratory stock.1036

4.3 Applicable Principles or “Approaches” Article 4 of the draft LBD lists the precautionary approach, ecosystem based approach and sustainability of fishery resource as the principles and approaches to be applied in meeting the objective of the LBD. The draft LBD draws a direct link between science and the precautionary approach. It defines the precautionary approach as the “capture of the scientifically justified (on multi annual basis) part of living resources that ensure their restoration (naturally, or if necessary by artificial reproduction and introduction) and ensures the maintenance of individual populations and the stock as a whole . . .”1037 This use of the precautionary approach, which is linked to scientific justification, is different from the definition provided by Principle 15 of the Rio Declaration under which scientific uncertainty is not to hinder the taking of preventive measures, as well as the definition used in the 2009 Black Sea-SAP.1038 The requirement that only fishing that can be scientifically justified places the burden on those seeking to fish to provide the scientific proof for sustainable fishing. In this regard it can be considered akin to the precautionary approach but not necessarily identical. The use of “best available scientific knowledge” is incorporated into the description provided of the ecosystem-based approach. The provision further states that “[e]cosystem consideration of fisheries management includes: impact and interaction of pollution and fish stocks, impact of eutrophication and human activities on fish stocks, climate change, impact of fishing on the ecosystem and needs to protect

1035 Article 1. 1036 Article 3. 1037 Article 4(1). 1038 Section 1.5.2 provides that the “precautionary principle shall be applied, such that measures shall be taken when there are reasonable grounds for concern that any activity may increase the potential hazards to human health, harm living resources or ecosystems, damage amenities, or interfere with other legitimate uses of the Black Sea, even when there is no conclusive evidence of a causal relationship between the activity and the effects;” supra note 42. Sustainable Fisheries Governance and Regional Co-operation for the Black Sea 185 species and habitats.”1039 The inclusion of climate change is significant in broadening the breadth of management within the context of ecosystem-based management.

4.4 Co-operation under the Legally Binding Document Under the heading of “general undertakings” in article 6, the obligations of the Parties are loosely divided into those obligations to be individually undertaken and those that are meant to be co-operative. The activities where the Parties are expressly under an obligation to co-operate include restoring depleted resources1040 and making decisions on the size of allowable long-term catch of shared stocks based on the best scientific evidence taking into account the precautionary approach where data is missing or inadequate.1041 The third reference to co-operation is in more aspirational language requiring the parties to encourage regional co-operation in scientific research on marine living resources including gathering of regional statistical information.1042 The Parties are further required to co-operate and jointly decide which species will be categorized as local, non-migratory, migratory and highly migratory stocks and include these in Annex I to the LBD taking into account Annex IV of the Black Sea Biodiversity and Landscape Protocol.1043 Control over management and conservation of all local stock remains reserved to the individual Contracting Party, however, while the Parties are responsible for the management and conservation of shared stocks within their jurisdiction they are obligated to co- operate with other Contracting Party or Parties that exploit the stock. The draft LBD extends the ecosystem approach to include holding individual States responsible for the “health of the ecosystem” of stocks in their jurisdiction.1044 The Parties are further required to co-operate in the management of highly migratory species1045 and must encourage bilateral and multilateral co-operation in research.1046 In regard to anadromous stock, there is only a duty to co-operate where the fish migrate into or through water or under jurisdiction of the Contracting Parties other than the Contacting Party of origin.1047 In addition, there is a duty to co-operate in the conservation of marine mammals in accordance with the Agreement on Conservation of Cetaceans of Black, Atlantic and Mediterranean Seas (ACCOBAMS) and other international organizations.1048

1039 Article 4. 1040 Article 6(2). 1041 Article 6(4). 1042 Article 6(8). 1043 Article 7. 1044 Article 7(1) and (3). 1045 Article 7(4). 1046 Article 7(5). 1047 Article 8(2). 1048 Article 9(3). 186 Chapter V

The draft LBD included provisions on the introduction of non-indigenous species.1049 In addition to taking measures for prevention of accidental introduction and control of the intentional introduction of non-indigenous species, including aquaculture, the Parties are required to co-operate and liaise with relevant organizations in assessment of the ecological and socio-economic consequences of the introduced species in the Black Sea. The Parties must also co-operate in the development and implementation of measures to control the propagation of potentially high impact non-indigenous species. Other undertakings either expressly apply individually to the Parties or use undefined language. There is the obligation to for each Party to individually determine the size of its allowable local catch.1050 Parties are also required to undertake impact assessments and undertake actions aimed at the assessment of the impact of fishing, of other human activities and of environmental conditions on living resources, biodiversity and habitats.1051 A link is made between the draft LBD and the Black Sea Biodiversity and Landscape Conservation Protocol pursuant to which the Parties are required to take it into account as part of their duty to protect and rehabilitate critical fisheries habitats in marine and coastal ecosystems, the protection of wetlands, lagoons, and nursery and spawning areas.1052 The Parties must also ensure that fisheries techniques and methods are based on the best available practice that minimize damage to ecosystems and non-target species, and that ensures conservation of biodiversity along with combating illegal, unregulated and unreported fisheries.1053 By requiring that decision-making be transparent and include fishermen and fish farmers in the process, especially small-scale artisanal fishermen, the draft LBD has incorporated some elements of “cooperative management.” The Parties are also required to provide education and training for responsible fishing practices.1054 The draft LBD once again is linked with the Black Sea Biodiversity and Landscape Proto- col in relation to compliance with prohibition on the harvesting of marine mammals except for scientific purposes.1055 In addition Parties are required to take measures to reduce by-catch.1056 The draft LBD provides a strong foundation for co-operation in promoting sustainable fisheries in the Black Sea.

1049 Article 12. 1050 Article 6(3). 1051 Article 6(5). 1052 Article 6(6). 1053 Article 6(7). 1054 Article 6(10). 1055 Article 6(6). 1056 Article 6(7). Sustainable Fisheries Governance and Regional Co-operation for the Black Sea 187

4.5 The Institutional Structure The institutional structure under the draft LBD includes a Black Sea Fisheries Commission,1057 a Scientific and Technical Committee,1058 and a Secretariat.1059 The Commission, in addition to promoting the implementation of the LBD and making recommendations for the achievement of the objective of the LBD, is also mandated to co-operate with other organizations. The Commission is required to develop and adopt decisions on measures necessary to fulfill the objectives of the LBD based on the advice provided by the Scientific and Technical Committee and the best scientific evidence. The Commission must also take measures for the conservation of marine living resources in close co-operation with the Black Sea Commission under the Bucharest Convention. Article 21 of the draft LBD provides for the establishment of a Black Sea Fisheries Fund.1060 The funds are to be used to finance the operating costs of the Secretariat and to finance projects and programmes. However, the determination of the sources of revenue for the fund is left to the future. One possible source could be from fines levied on illegal fishing activities in the Black Sea. In addition, license fees for fishing, part of the “privatization” approach, could also be considered at a regional basis as a source of revenue for the fund.

4.6 Compliance and Enforcement One of the key functions of the Commission, under the draft LBD, will be establishing a system for promoting compliance and enforcement of the LBD, including surveillance. According to article 20 Contracting Parties shall co-operate through the Commission in establishing an appropriate system of implementation, compliance, surveillance and enforcement in accordance with the provisions of the present draft LBD. However, there is no specific reference to the creation of a regional compliance and enforcement mechanism. Without question, strengthening compliance and enforcement is critical to ensuring sustainable fisheries in the Black Sea. There are only three very general provisions in the draft LBD governing fishing vessels. The first requires that the Contracting Parties take the necessary measures to ensure compliance of all vessels and persons fishing in the waters under their jurisdiction with provisions of this draft LBD. The second requires that the Contract- ing Parties impose limits on fishing capacity to prevent overfishing and the third requires the Parties to agree on safe methods and gear to prevent by-catch of non- target species.1061 However, a compliance mechanism is needed that provides for the exchange and review of information regarding implementation of the draft LBD

1057 Article 13(1). 1058 Article 17. 1059 Article 18. 1060 Supra note 1032. 1061 Id., article 10(1)–(3). 188 Chapter V provisions by the individual Black Sea States, a process for assessing possible cases of non-compliance, and measures to be applied if there is non-compliance. It is important to note that compliance mechanisms need not be punitive in nature but rather should be seen as a tool for promoting good governance by identifying problems in implementation and how to ameliorate them. The public, especially NGOs, can also play an important role in promoting compliance. For example, influencing public consumer behavior by awareness raising campaigns can exert pressure in the fishing industry to provide sustainable fish products. There are a number of examples of effective collaboration between NGOs, the private and governmental sectors. For example, the Marine Stewardship Coun- cil (MSC) is an international foundation whose mission is to promote sustainable fisheries through ecolabeling and fishery certification programmes.1062 The MSC is an example of an effective collaboration between the private sector and the NGO sector.1063 Another example of NGO involvement in promoting sustainable fisheries is the U.S. based National Environmental Defense Fund (EDF), which works closely with fishermen and promotes public awareness through its sustainable fisheries guide for fish consumption. Furthermore, the EDF, in partnership with a community development bank, the Sustainable Fisheries Group – a coalition of marine scientists, economists and ocean advocates – and the involvement of local fishermen, established the California Fisheries Fund (CFF).1064 The CFF provides low-interest loans to help local fishing industry adopt sustainable fishing practices.1065 The CFF represents an innovative partnership between the private, governmental and the NGO community. In an unusual approach the EDF, an NGO, was appointed as the Fund manager. NGOs from the Black Sea region have also been actively promoting sustainable fishing practices. The Black Sea Network of NGOs is also involved in Black Sea fisheries issues, in particular in partnership with the EU. However, there are virtually projects listed directly related to promoting sustainable fisheries practices in the Black Sea,

1062 See in general the MSC website at http://www.msc.org/. On the effective role of NGOs in influencing consumer practices and retail practices in favor of sustainable fish products see also, Oceans Advocates: Seafood markets driving change towards sustainable oceans management (Greenpeace 2010), available at http://www.greenpeace.org/international/PageFiles/173748/ Oceans_Advocates.pdf. 1063 The Marine Steward Council was established as a joint initiative between Unilever and the World Wildlife Fund (WWF). Magnus Boström & Kristina Tamm Hallström, NGO Power in Global Social and Environmental Standard-Setting, 36–59, 10 Global Env’t Pol. 41(2010). 1064 The CFF “is a nonprofit revolving loan fund that invests in the fishing industry on the West Coast. Our mission is to help our borrowers (fishermen, fishing businesses, ports, communities and others) succeed in fisheries that achieve environmental conservation, improved profitability for the industry and stability for port communities.” Available at http://californiafisheriesfund.org/ index.html. 1065 Lindsay Riddell, Environmental fund helps make fisheries sustainable, s.f. bus. times, Jan. 19, 2011, available at http://www.bizjournals.com/sanfrancisco/news/2011/01/19/environmental- fund-helps-make-fishing.html. Sustainable Fisheries Governance and Regional Co-operation for the Black Sea 189 such as promoting public awareness through ecolabeling and certification.1066 This is an area in which NGO activities can be further enhanced, especially with the support of the EU and GEF.

5. Co-operation beyond the Black Sea

5.1 Co-operation with the General Fisheries Commission for the Mediterranean Sea The General Commission for Fisheries for the Mediterranean Sea (GFCM) is one of the first regional organizations for fisheries.1067 It was established pursuant to the Agreement for the Establishment of the General Fisheries Commission for the Mediterranean.1068 Its objectives are to promote the development, conservation, rational management and best utilization of living marine resources, as well as the sustainable development of aquaculture in the Mediterranean, Black Sea and connecting waters. Twenty-three States including the European Union are members of the Commission. The GFCM extends beyond the geographic limits of the Mediter- ranean Sea to include the Black Sea. Bulgaria, Romania and Turkey are members of the GFCM, while Georgia, Ukraine and the Russian Federation are not. Without full participation of all Black Sea States the GFCM cannot fulfill the role of a RFMO for the Black Sea. The GFCM adopts recommendations and resolutions that can be binding on the Member States. Some of the important actions taken by the GFCM in recent years include establishing a regional fleet register,1069 a regional record of fishing vessels over 15 meters authorized to operate in GFCM areas,1070 tougher regional port state control requirements against IUU,1071 and mandatory satellite based Vessel Monitor- ing System (VMS) for commercial fishing vessels over 15 meters fitted with satellite tracking devices by 2012 for flag-Parties and co-operation non-Parties.1072

1066 List of Black Sea Network of NGOs projects available at http://www.bsnn.org/projects.html. 1067 Its original name was the General Fisheries Council for the Mediterranean. Established in 1949 under the Agreement for the establishment of the General Fisheries Commission for the Mediterranean (GFCM), pursuant to Article XIV of the FAO constitution, the Commission became operational in 1952. 1068 The GFCM was established within the framework of Article XIV of the FAO Constitution and approved at the Fifth Session of the FAO Conference in 1949. The Agreement entered into force on 20 February 1952, and was amended in 1963, 1976 and 1997. 1069 Recommendation GFCM/33/2009/5 on the Establishment of the GFCM Regional Fleet Regis- ter, available at http://151.1.154.86/gfcmwebsite/Docs/RecRes/REC.DIR-GFCM_33_2009_5.pdf. 1070 Recommendation GFCM /33/2009/6 Concerning the Establishment of a GFCM Record of Vessels Over 15 meters Authorized to Operate in the GFCM Areas Amending the Recommendations GFCM/2005/2, available at http://151.1.154.86/gfcmwebsite/Docs/RecRes/Rec_GFCM_33_2009_6.pdf. 1071 Recommendation GFCM/2008/1 on a regional scheme on port state measures to combat illegal, unreported and unregulated fishing in the GFCM area, available at http://151.1.154.86/gfcmwebsite/ Docs/RecRes/Rec_GFCM_2008_1.pdf. 1072 Recommendation GFCM/33/2009/7 Concerning Minimum Standards for the Establishment of a Vessel Monitoring System (VMS) in the GFCM Area, available at http://151.1.154.86/gfcmwebsite/ Docs/RecRes/Rec_GFCM_33_2009_7.pdf. 190 Chapter V

5.2 Co-operation with the European Union The accession to the EU by Bulgaria and Romania in 2007 and the eventual accession of Turkey will have direct impact in the Black Sea fisheries governance structure especially given the European Community’s exclusive competence over fisheries. The European Community, when established,1073 included fisheries as part of its Common Agricultural Policy under article 39 of the EC Treaty, under which the Community reserved exclusive competence1074 (versus shared) over fisheries.1075 However, the development of an EC fisheries policy took a number of years.1076 The first Com- mon Fisheries Policy (CFP) was adopted on 25 January 1983 for a twenty-year period (1983–2002).1077 In 1993, in response to the decline in Community fish stocks, the EC adopted regulations that included technical conservations measures1078 and established a “total allowable catch” (TAC) and a transferable quota system as a conservation measure.1079 In 1986, following the accession of Spain and Portugal, two major fisheries countries, new regulations were adopted to improve the Community fishing fleet.1080 In 1992 the Council adopted a new regulation establishing a Community system for fisheries and aquaculture, replacing the 1983 regulation.1081 It provided a legal framework for the conservation and management of fisheries based upon a rational and responsible exploitation of living marine resources on a sustainable basis achieved through the TAC and quota system.1082 However the 1992 regulations also required that TACs be allotted to all Members in a manner to assure relative stability of their

1073 The European Union was first established as the European Economic Community (“EEC”) in 1957 by the Treaty Establishing the European Community (“EC Treaty” or “Rome Treaty”). Treaty Establishing the European Economic Community, 25 Mar. 1957, 298 U.N.T.S. 3. 1074 Member States transferred their competence in fisheries to the Community by Council resolution of 3 November 1976. 1075 EC has competence over fisheries as an agricultural product by virtue of Article 38 of the EC Treaty. This means that EC has sole legislative and regulatory prerogative over fisheries for its member States. Unlike other areas of Community regulation fisheries is under the exclusive competence of the Community barring individual Member State action. The Community has primary legislative authority. Individual Member States cannot adopt national regulations or become party to international agreements in their individual capacity. 1076 For an excellent historical treatment of the Community Common Fisheries Policy see K.K. Mwenda and P-O Leblanc, European Fisheries in Crisis: Implementing Individual Transferable Quo- tas as a Solution, 20 WHITTIER L. REV. 783 (1999). See also, Yann-huei Song, The Common Fisheries Policy of the European Union: Restructuring of the Fishing Fleet and the Financial Instrument for Fisheries Guidance, 13 INT’L J. MAR. & COASTAL L. 537, 547–553 (1998). 1077 Council Regulation 170/83 (establishing the CFP) 1983 O.J. (L24) p. 1. 1078 Regulation 171/83 (technical conservation measures) 1983 O.J. (L24) 14. 1079 Regulation 172/83 (total allowable catches and national quotas), Id., at 30. 1080 Council Regulation 4028/86, 1986 O.J. (L376) 7. 1081 Council Regulation (EEC) No 3832/91 of 18 December 1991 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1992 and certain conditions under which they may be fished, 1991 O.J. (L 367) 1. 1082 The CFP also included technical regulations for net mesh size, gear, closed seasons and areas to reduce mortality during spawning and protect juvenile fish. Sustainable Fisheries Governance and Regional Co-operation for the Black Sea 191 fishing activities.1083 Despite efforts to adopt a conservationist policy the CFP was unable to control over fishing. In 2001 the Community prepared a detailed Communication on its fisheries, the Green Paper on the Future of the Common Fisheries Policy.1084 This was followed by a number of Community Action Plans which included fisheries in the Mediterranean Sea,1085 the integration of environmental protection requirements into the Common Fisheries Policy,1086 the eradication of illegal, unregulated and unreported fishing (IUU),1087 the sustainable development of European aquaculture,1088 the reduction of discards of fish,1089 and countering social, economic and regional consequences of the restructuring of the EU fishing industry.1090 Finally, in 2002, the EU Fisher- ies Council adopted a new European Common Fisheries Policy.1091 The new CFP incorporated the principles of the 2002 World Summit on Sustainable Development held in Johannesburg in 2002.1092 The 2002 CFP requires the application of the precautionary approach,1093 sustainable exploitation,1094 progressive implementation of

1083 “Relative stability” is an important principle of the EU CFP. Article 21 provides that 1. The Council, acting by qualified majority on a proposal from the Commission, shall decide on catch and/or fishing effort limits and on the allocation of fishing opportunities among Member States as well as the conditions associated with those limits. Fishing opportunities shall be distributed among Member States in such a way as to assure each Member State relative stability of fishing activities for each stock or fishery.” See also, The Common Fisheries Policy, A User’s Guide 6 (European Commission, 2008). 1084 European Commission Green Paper on the Future of the Common Fisheries Policy, COM (2001) 135 final. 1085 Communication from the Commission setting out a Community Action Plan laying down a Community Action Plan for the conservation and sustainable exploitation of fisheries resources in the Mediterranean Sea under the Common Fisheries Policy, COM (2002) 535 final. 1086 Communication from the Commission setting out a Community Action Plan to integrate environmental protection requirements into the Common Fisheries Policy, COM (2002) 186 final. 1087 Communication from the Commission to the Council and the European Parliament: Com- munity action plan for the eradication of illegal, unreported and unregulated fishing, COM (2002) 180 final. 1088 Communication from the Commission to the Council and the European Parliament: A Strategy for the Sustainable Development of European Aquaculture, COM (2002) 511 final. 1089 Communication from the Commission to the Council and the European Parliament: Action Plan to Reduce Discards of Fish, COM (2002) 656 final. 1090 Communication from the Commission to the Council and the European Parliament: Action plan to counter the social, economic and regional consequences of the restructuring of the EU fishing industry, COM (2002) 600 final. 1091 Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy, 2002 O.J. (L 358) 59. 1092 One of the key objectives of the Summit relating to sustainable fisheries was to maintain or restore stocks to levels that can produce the maximum sustainable yield with the aim of achieving these goals for depleted stocks on an urgent basis and where possible no later than 2015. 1093 Article 3(i) defines the precautionary approach to fisheries management to mean that “that the absence of adequate scientific information should not be used as a reason for postponing or failing to take management measures to conserve target species, associated or dependent species and non-target species and their environment.” 1094 Article 3(e) defines ‘sustainable exploitation’ to mean “the exploitation of a stock in such a way that the future exploitation of the stock will not be prejudiced and that it does not have a negative impact on the marine eco-systems.” 192 Chapter V the ecosystem-based approach to fisheries management, and use of the principle of good governance. Furthermore, all Community measures adopted to meet the objectives of the 2002 CFP1095 must be based on scientific advice provided from the Scientific, Technical and Economic Committee for Fisheries (STECF)1096 and Regional Advisory Councils (RAC).1097 The 2002 CFP also provided for a mandatory review of its implementation in 2012.1098 The European Fisheries Fund (EFF) was established in 20061099 replacing the Financial Instrument for Fisheries Guidance (FIFG).1100 The financial assistance aims to, inter alia, support the CFP, promote a sustainable balance between the fishing capacity of the Community fleet and existing resources, promote sustainable development of inland fisheries, strengthen the operating competitiveness of European fishery sector, foster the protection the marine environment and natural resources related to fisheries, and encourage sustainable development and quality of life in the context of fisheries activities.1101 The EFF assistance is available to Member States that are located within fishing areas. For the period between the years 2007–2014 a total of 4.3 billion Euros has been committed to the EFF.1102 Available only to Mem- ber States Bulgaria and Romania would be the eligible Black Sea States. The international dimension of the EU fisheries policy with non-EU Member States is based on bilateral agreements with individual countries and agreements with RFMOs. The EC has a long-standing practice of concluding bilateral fisheries agreements with non-Member States that were either reciprocal, providing for mutual access to fishing grounds, or compensatory agreements that provided financial payments in return for access to fishing grounds.1103 Most of these agreements were for access to tuna and a few were “mixed species” agreements. Reciprocal agreements have been concluded with neighboring non-Members States such as Denmark, Iceland and the Faroe Islands (Northern Agreements) for joint-management of shared stocks, and compensatory agreements with many coastal countries in Africa. In 2002, in line with the Green Paper, the Commission adopted the Com- munication on an Integrated Framework for Fisheries Partnerships Agreements with

1095 Article 2, paragraph 1 provides that “The Common Fisheries Policy shall ensure exploitation of living aquatic resources that provides sustainable economic, environmental and social conditions.” 1096 Article 33. 1097 Article 31. 1098 Article 35. 1099 COUNCIL REG. (EC) No. 1198/2006 on the European Fisheries Fund, L 223/1, 15.8.2006. 1100 The Financial Instrument for Fisheries Guidance in place until 2006 was part of the Struc- tural Funds . . . 1101 Article 4(a)–(g). Id. 1102 Supra note 1099. 1103 Charlotte Bretherton & John Vogler, The European Union as a Sustainable Development Actor: the Case of External Fisheries Policy, 30 EUR. INTEGRATION 401–417, 409 (2008). Sustainable Fisheries Governance and Regional Co-operation for the Black Sea 193

Third Countries.1104 The new 2002 CFP replaced the old compensatory agreements with fisheries partnership agreements (FPA) that aimed at improved sustainability practices.1105 In return for access to fishing rights in the FPAs the EU provides financial and technical compensation. The former involves the exchange of fishing rights (access and TACs) with countries such as Norway,1106 Iceland,1107 and Faroe Islands.1108 The agreements are either species-based Tuna agreements1109 or multi- species agreements.1110 Currently, there is no regional quota system for the Black Sea other than the EU quotas applicable for Bulgaria and Romania. Bulgaria and Romania also each have a National Strategic Plan for Fishing and Aquaculture for 2007–2013 in accordance with the European CFP. Because some states are part of the EU and only some states are parties to the Mediterranean agreement, an important issue will be how the EU and the non-EU Black Sea States will co-operate in the Black Sea. The Black Sea political situation parallels the situation in the Baltic Sea, the North Sea and the Mediterranean. The Northern Agreements concluded with Denmark, Ice- land and the Faroe Islands is more likely to serve as the model upon which future EU relations on fisheries will be based in the Black Sea. In terms of jurisdictional geography, Turkey and Ukraine possess the largest EEZ areas. At the same time in terms of fish catch and landings Turkey is by far the largest exploiter of Black Sea fisheries.

1104 Communication from the Commission on an Integrated Framework for Fisheries Partner- ship Agreements with Third Countries, COM (2002) 637 final. 1105 Bretherton & Vogler, The European Union as a Sustainable Development Actor, supra note 1103, at 412. The authors divide the two types of EU agreements with non-EU Member States as compensatory and Northern Agreements (Norway, Iceland and the Faroe Islands). The authors give the case of the FPA concluded in 2007 with Guinea Bissau where the number of licenses for tuna vessels was reduced from 70 to 37 while the financial compensation remained the same. Furthermore, part of the compensation included funds for improving sanitary and phyto-sanitary conditions for fisheries, and improvement of monitoring, control, and surveillance. However, the authors discuss the continued criticism of EU fisheries practices under the new FPAs as non- sustainable. Id., at p. 413. 1106 The first agreement between the EC and Norway was concluded in 1981 and continues to be in force, The Framework Agreement was adopted by Council Regulation (EEC) 2214/80 of 27 June 1980, O.J. (L 226) 47. The agreement for the first 10 years to 1991 (1981 O.J. (L 191) 19), renewed by 6 years to 1997, extended two further periods of 6 years to 2009. 1107 The Framework Agreement was adopted by Council Regulation (EEC) 1737/93 of 24 June 1993, O.J. (L 161) 1, initial period of 10 years to 2003, renewed for 6 years until 2009. 1108 The Framework Agreement was adopted by Council Regulation (EEC) 2211/80 of 27 June 1980, O.J. (L 226) 11, initial period of 10 years until 2000, renewed until 2012. 1109 FPA for tuna have been concluded between the EU and Cape Verde, Comoros, Ivory Coast, Gabon, Kiribati, Madagascar, Mauritania, Mozambique, Solomon Island, Sao Tomé e Principe, Seychelles and Micronesia. 1110 Agreements have been concluded between the EU and Greenland, Guinea Conakry, Guinea- Bissau and Morocco. 194 Chapter V

6. Discussion

A key gap in the regional regime for protection of the Black Sea marine environment is the lack of a binding regional fisheries agreement that incorporates the principles, approaches and best practices as developed by modern fisheries law. This gap is especially problematic given that the decline of Black Sea fish stocks comes from external sources independent of pollution, in particular unsustainable fishing practices. Furthermore, the shared nature of Black Sea fish stocks requires creating a management system based on close co-operation among the six Black Sea coastal States. And while an effort to address this serious legal gap was undertaken during the early 1990s with the preparation of a draft regional agreement for the management and conservation of fish stocks, referred to by the generic non-descriptive title, “Legally Binding Document,”1111 in 2012 it still remains in draft form and without a clearly defined legal status. Once adopted and implemented, though, the draft Legally Binding Document will provide the Black Sea with a strong legal foundation upon which to build a regional regime of co-operation for sustainable fisheries management. Modern sustainable fisheries governance, as developed through the 1982 LOSC, the 1995 FSA, FAO practice and instruments such as the Code of Conduct, evince a clear duty for States to co-operate in the management and regulation of shared fish stocks. In practice this has been implemented through RFMOs, of which there are numerous examples. In addition to cooperative management through RFMOs, a clear set of principles and approaches have emerged as necessary components for creating a sustainable fisheries governance regime. Principally, these include the precautionary principle, the ecosystem based management and use of best scientific evidence. In addition, new approaches including, market mechanisms and trade measures, notably through the existing CITES listing mechanism1112 are seen as alternative approaches to preventing unsustainable fishing practices. The Black Sea sturgeon has already been successfully listed1113 and consideration should be given to listing of the Black Sea turbot, notwithstanding the political challenges that certainly can be expected, especially from Turkey. The only regional regime in existence for fisheries in the Black Sea is the 1959 Varna Fisheries Convention.1114 However, it is inadequate to fulfill the requirements for modern fisheries governance for a number of reasons. First, without the inclusion of Turkey, a major fisheries interest in the Black Sea, it does not establish a comprehensive regional co-operative legal framework. Second, adopted some fifty years ago,

1111 The term “Legally Binding Document” has been employed reflecting the ambiguity of the Black Sea States as to whether the final instrument will be a stand-alone convention or an implementing protocol to the Bucharest Convention. 1112 Supra note 1019. 1113 Supra note 1021. 1114 Supra note 1024. Sustainable Fisheries Governance and Regional Co-operation for the Black Sea 195 the 1959 Varna Fisheries Convention lacks the principles and norms that have developed over time. Furthermore, there is no permanent institutional body responsible for administering the Varna Convention, which exists in modern instruments. Lastly, for all practical purposes, it is a defunct international agreement. The lack of action on the part of the Black Sea States to adopt and implement a regional regime for sustainable fisheries is a failure of the Black Sea States to meet their international obligations under global instruments, such as the 1982 LOSC, as well as specific regional commitments undertaken under the 1996 Black Sea-SAP for the Black Sea States to adopt a fisheries agreement.1115 The Bucharest Convention did not include fisheries activities among the activities to which it applied. Conse- quently, the regional dimension for fisheries has been dealt with primarily under the 1996 and 2009 SAPs. Moreover, the Black Sea also highlights two gaps in the global framework for marine living resources. The first gap, which is a global concern, is the need for an international framework to promote cooperative governance for shared fish stocks within the meaning of article 63(1) of the LOSC, as pointed out by Churchill. For example, eventually when the Mediterranean Sea maritime zones have been delim- ited the need to develop a management regime for shared fish stocks in accordance with article 63(1) may be necessary. The second is the gap in the existing UNEP Regional Seas Programme that excludes fisheries from its scope of application. In the case of the Black Sea, this may have contributed to the lack of follow-up in adopting the draft LBS developed nearly twenty years ago by international experts.1116 According to the 1996 Black Sea-SAP1117 and 2009 Black Sea-SAP1118 the Black Sea States were committed to adopting and implementing the draft LBD. In addition, one of the objectives of the fifteen-year long Black Sea Ecosystems Recovery Proj- ect (BSERP) was to promote adoption of a fisheries agreement.1119 During the past twenty years, despite a clearly identified need for a regional fisheries agreement and the continued decline in Black Sea fish stocks, no action has been taken. The challenge is in defining the means by which to make the six Black Sea States fulfill their respective regional and international commitments. The legal avenues available to challenge the inaction of the Black Sea States to adopt and implement a regional fisheries agreement are, unfortunately, limited. First, the compulsory dispute provisions of the 1982 LOSC do not apply to marine living resources found in the EEZs of State Parties.1120 Moreover, even if some form

1115 Supra note 51. 1116 Supra note 1031. 1117 Supra note 51. 1118 Supra note 42. 1119 Supra note 550, at 3 (objective 2). 1120 1982 LOSC article 297(3)(a) expressly states that the coastal State shall not be obliged to accept a submission for compulsory dispute settlement in relation to living resources in it exclusive economic zone. See United Nations Convention on the Law of the Sea 1982: A Commentary Vol. IV, (Shabtai Rosenne & Alexander Yankov eds., 1991). 196 Chapter V of legal action were possible under the 1982 LOSC it would have limited impact given that Turkey, who is non-Party to the Convention, is a major fishing State in the Black Sea. On the other hand, if the EU were a Party to the Bucharest Convention, the European Commission, with its exclusive competence over Community fisheries could be an important factor and take the initial step to challenge the Black States for failing to adopt and ratify the draft LBD, which was a commitment made under the 1996 Black Sea-SAP and more recently the 2009 Black Sea-SAP. Even absent taking legal action the European Commission could exert significant political pressure for the adoption of a binding Black Sea fisheries instrument and buttress this support with additional financial resources, as discussed further below. The European Union possesses the greatest potential for placing political pressures and providing incentives for the Black Sea States to adopt and implement the draft LBD. If and when the draft LBD is adopted and enters into effect it will fill an important gap in the regional governance regime for sustainable fisheries. The draft LBD has incorporated the key elements, principles and mechanisms for a regional sustainable fisheries regime. Notably, it has adopted the precautionary approach, ecosystem- based management, best available scientific knowledge, and requirement for use of impact assessments. Furthermore, it provides for science-based decision-making through the relationship between the Scientific Committee and the Commission, although experience has not necessarily shown the science-fisheries relationship to be successful in different fisheries regimes. The draft LBD explicitly links the precautionary approach to that which can be scientifically justified. However, the definition of “precaution” in the LBD is not consistent with the internationally accepted definition in Principle 15 of the Rio Declaration1121 and 2009 Black Sea-SAP adopted by the States. Consideration should be given to adjusting the definition given under the LBD of the precautionary approach accordingly. Given that the fisheries agreement remains in draft form such a revision would only require the agreement of the States without having to go through an amendment process. The compliance mechanism provided for by the draft LBD is essential to construct an effective fisheries regime that is able to control IUU fishing activities and ensure a common standard of regional regulation of fisheries activities. The compliance mechanism should operate to both facilitate compliance and where necessary allow for the imposition of binding decisions by a recognized authority, such as the Black Sea Commission. In order to ensure that the compliance mechanism is viewed as being fair and objective one suggestion would be to establish an independent advisory committee composed of non-governmental representatives with scientific, legal and other relevant expertise. An independent advisory committee would enhance the credibility of the compliance mechanism and prevent charges of lack of expertise or possible political bias. Furthermore, one method of promoting compliance

1121 Supra note 208. Sustainable Fisheries Governance and Regional Co-operation for the Black Sea 197 that could be included in the compliance mechanism is to establish a forum for fishermen and the public, including NGOs, for interactive exchange of information between the fishing sector, public and the government. The ultimate objective of the compliance mechanism should be to promote sustainable fishing. Ideally, this should be accomplished by directly engaging the fishing sector to understand the benefits and advantages of sustainable fishing practices and how to alter existing practices. The public, as a consumer of fishing products also needs to be involved and made aware of how to support sustainable fishing. Non-Governmental Organizations can play an influential role in bridging the information and public awareness gap. There are several examples internationally of the positive influence NGOs have had in promoting awareness in the public and pressuring industry to comply. Measures that the Black Sea could adopt include use of electronic means to advise the public on species of fish that can be consumed, restaurants that serve sustainably caught fish products, promoting ecolabeling and certification of sustainable fish products. The California Fisheries Fund (CFF) provides an example of engendering sustainable fish practices through innovative alternative NGO-managed financial assistance programme.1122 The underlying factor in all these initiatives is the close collaboration among different stakeholders. Port state control provides another effective means to promote compliance of sustainable fishery practices through the use of punitive enforcement measures. The Black Sea States are well situated to create a strong system of port state control for enforcement of fisheries regulations. All six Black Sea States are members of the Black Sea MOU for port state control that has been in effect since the year 2000.1123 The existing Black Sea port state mechanism can be expanded to apply to fisheries activities. This system can be supported with navigational devices such as VTMIS and satellite tracking systems. Many of the Black Sea States already have these technologies. As part of port state control measures a list of fishing vessels engaged in IUU fishing activities can be posted on the PSC website. In regard to enforcement measures the Black Sea States could revisit the possible role of the Blackseafor as a regional enforcement authority.1124 If this is not possible then the Black Sea States could establish a system of co-operation among the different coastal policing forces, e.g. coast guards. This is especially important in the case of hot pursuit between the different EEZs of the States, or in the case of a suspected fishing vessel engaged in IUU activities in the EEZ of one State who then crosses into another EEZ. Other matters requiring co-operation include, for example, the regulations for the collection and use of evidence or the fines and potential

1122 Supra note 1064. 1123 Memorandum of Understanding on Port State Control in the Black Sea Region (Black Sea MOU) 1 April 2000 the, amended 1 Jan. 2010. See www.bsmou.org/default2.htm. The BS MOU Headquarter Agreement for establishing the Black Sea MOU Secretariat in Istanbul was signed on 18 October 2003. 1124 Supra note 1015. 198 Chapter V prison sentences to be imposed. A harmonized regulatory system would enhance the regional enforcement of fisheries regulations and prevent the potential of creating Black Sea fishing havens. The Fisheries Fund provided for in article 11 of the draft LBD will be important in providing the needed financial resources for a number of purposes such as promoting sustainable fishing practices though education and training of fishermen, where necessary assisting in reducing over capacity of the Black Sea fishing vessels and providing for an effective surveillance and enforcement system. For this purpose the Black Sea States must ensure sustainable resources for the Fund. Fines levied from IUU fishing activities or fishing licenses are potential sources of revenue for the fund. The States should also develop projects with the support of the Black Sea Trade and Development Bank under the BSEC to ensure sustainable fisheries as part of the economic development of the Black Sea region.1125 The EU can also provide funding opportunities such as from the European Fisher- ies Fund.1126 However, as assistance is available only for Member States, Bulgaria and Romania would be the sole Black Sea recipients. When Turkey, however, becomes a full member State to the EU it will be eligible to obtain support from the EFF. Turkey’s eligibility for funds will likely to be significant given Turkey’s dominant fisheries activities in the Black Sea. Nevertheless, under the current political pro- file funding for fisheries in the Black Sea could possibly be linked to the Black Sea Synergy policy.1127 An alternative approach to waiting for the Black Sea States to adopt and ratify a the draft LBD may be to promote full Black Sea State membership to the GFCM.1128 Rather than having to convince six Black Sea States to ratify the draft LBD, in this case only three states, Georgia, the Russian Federation and Romania, would need to join. The EU could convince Romania, a Member State, to join and Turkey might be able to persuade Georgia. Russia may decide to participate to avoid being excluded from decisions impacting the Black Sea. Full Black Sea participation in the GFCM, which links the Black Sea fisheries and the Mediterranean fisheries, would also be logical from an ecological management perspective, especially in applying the ecosystem approach. The GFCM has already adopted many important binding decisions, in particular requiring stricter port state control measures against IUU and imposing mandatory VTMIS for commercial fishing vessels over 15 meters.1129

1125 Supra note 538. 1126 Supra note 1095. 1127 Supra note 578. 1128 Supra note 1067. A Memorandum of Understanding was concluded between the GFCM and the Black Sea Commission on 14 May 2012. (On-file with author). In February 2013 the first joint workshop was held in Istanbul on IUU between the GFCM and the Black Sea Commission. See http://www.gfcm.org/gfcm/topic/16084/en. 1129 Supra note 1072. Sustainable Fisheries Governance and Regional Co-operation for the Black Sea 199

In summary, the EU may be in the best position to exert influence on the Black Sea States to move forward in adopting the draft LBD through the use of financial incentives and political pressure on Bulgaria, Romania and Turkey, a candidate State to the EU. Soft pressure can also be applied to the non-EU Member Black Sea States through the voice of the public and NGOs. However, in the alternative, even without the draft LBD measures can be taken to promote sustainable fishing practices in the Black Sea. Public awareness through ecolabeling and certification can educate the public and shape fish consuming practices. Lastly, all six Black Sea States could join the GFCM.

Chapter VI

Land-based Sources of Pollution: The Black Sea and Beyond

1. Introduction

Land-based pollution is recognized as the cause of some eighty percent of marine and coastal pollution globally. And it is without question the principal cause of environmental degradation in the Black Sea impacting fish stock and biodiversity. The primary sources of land-based pollution for the Black Sea include run-off from land, pollution found in rivers, pipelines and other outfall sources of untreated sewage, hazardous substances, radioactive substances, chemical pollution and persistent organic pollutants, as well as atmospheric pollution. The transboundary aspect of land-based marine pollution is particularly pronounced in the Black Sea which serves as the catchment area for a multitude of rivers. However, it is the Danube River, cutting across eleven riparian States that is the single largest source of nutrient input for the Black Sea, compounding the challenge of transboundary co-operation. While there have been signs of improvement in pollution levels in the Black Sea, these are attributed less to the implementation of the Bucharest Convention than to the negative economic consequences following the political dissolution of the former USSR. Large-scale agricultural activities were replaced with subsistence farming and many polluting industries closed.1130 However, the Danube River basin and Black Sea co-operation is one example of a successful inter-regime co-operation that has had a positive impact on the marine environment. Despite the dominant role of land-based pollution, it remains the least regulated at the global level. And while a myriad of instruments address various sectoral activities, including the marine and coastal environment no single specialized binding international instrument exists for the direct regulation of land-based sources of marine pollution. The international and regional instruments that are relevant to addressing land-based sources of pollution of the marine environment include both “hard law” and “soft law” instruments,1131 the latter comprised of non-binding instruments, declarations, resolutions, strategic action plans and programmes. The 1982 LOSC remains as the only global treaty that specifically addresses land-based sources of marine pollution. However, it does not provide for detailed environmental standards.

1130 Black Sea Transboundary Diagnostic Analysis 2 (2007). 1131 Sergei Vinogradov & Elizabeth Kirk, Implementation of the Gpa at Regional Level. the Role of Regional Seas Conventions and Their Protocols (UNEP/GPA, 2006).

The only global instrument that exclusively addresses land-based sources of marine pollution is the non-binding Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (GPA), adopted in 1995.1132 An important aspect of the 1995 GPA lies in its emphasis on adopting a regional and co-operative approach to addressing land-based sources of marine pollution, and especially through the mechanism of the regional seas programmes. In addition, other important “soft law” instruments include the 2002 JPOI,1133 which also encourages advanced implementation of the GPA and the Montreal Declaration.1134 The legal lacuna left at the international level places additional pressure on the regional governance to address the critical issue of land-based sources of marine pollution. The principal actor is the UNEP Regional Seas Programme. However, the UNEP Regional Seas legal framework fails to provide a clear set of principles, standards and actions for creating a regime of co-operation for land-based sources of marine pollution. By contrast, the EU has made progress with the adoption of river basin management model under the WFD and the MSFD.1135 The Black Sea regional regime for land-based pollution provides an interesting model of multi-level co-operation. At the regional level, one of the GEF’s more ambitious projects was the Black Sea Environmental Recovery Project (BSERP), which aimed at improving co-operation among the Black Sea States for reduction of land-based sources of pollution.1136 The project was implemented in two phases: Phase I (2001–2003) and Phase II (2004–2008).1137 One of the key outcomes of Phase II of BSERP was the adoption of the revised Black Sea Land-based Sources of Pollution Protocol.1138 The Protocol first sought to improve and strengthen the existing legal basis of environmental co-operation among the Black Sea States for land-based sources of pollution. It was also designed to bolster intra-regional co- operation among the six Black Sea States and inter-regime co-operation, such as with the Danube Basin States and the EU. The revised Protocol aimed at incorporating new conceptual approaches and principles of environmental law, and to take into account developments at the international level such as the 1995 GPA and the

1132 UNEP (OCA)/LBA/IG.2/7 (5 December 1995) [hereinafter GPA], available at http://www .cep.unep.org/meetings-events/3rd-lbs-istac/LBA%20IG2-7en.pdf. 1133 Supra note 418. 1134 Supra note 556. 1135 Supra note 1. See Chapter VII on vessel source pollution. 1136 Supra at 550. 1137 Id. 1138 Id. Land-based Sources of Pollution: The Black Sea and Beyond 203 relevant directives of the EU (in particular the WFD and the MSFD).1139 The revised Protocol was adopted in 2009 and has not yet entered into force.1140 A more complex system of co-operation was established by BSERP between the eleven member State Danube River Commission and the six member State Black Sea Commission.1141 The project marked the first time the integrated basin-wide approach was implemented and the first inter-regional cooperation system established to reduce transboundary land-based sources of pollution. This chapter will analyze and assess the vertical alignment of the international framework, principles and standards for the prevention of land-based sources of pollution at the regional level in the Black Sea proper, as well as the inter-regional co-operation between the Black Sea and the Danube basin, and the role of EU legislation.

2. Global Legal Framework for Land-based Sources of Marine Pollution

2.1 The Hard Law Framework of International Law for Land-based Pollution The 1982 LOSC is the only legally binding global instrument that imposes an obligation and provides a binding legal framework for States to prevent, reduce and control land-based sources and activities causing pollution of the marine environment at the national and regional levels. Other related global conventions, such as the 2001 Stockholm Convention on Persistent Organic Pollutants,1142 the Basel Convention1143 and the Rotterdam Convention which requires the “prior informed consent” of the importing State before exporting certain dangerous pesticides and industrial chemicals,1144 either regulate specific chemicals or focus on notice requirements rather than systematic regulation of land-based sources of pollution.

1139 Black Sea Commission, Implementation of the Strategic Action Plan for the Reha- bilitation and Protection of the Black Sea 31(2002–2007), Report (2009). 1140 All six Black Sea States have signed the Protocol, however only Georgia, on 24 September 2009, has ratified it. Information obtained from the website of the Secretariat of the Black Sea Commission, available at http://www.blacksea-commission.org/_table-legal-docs.asp. 1141 GEF/C.15/Inf. 6, World Bank Strategic Partnership for Nutrient Reduction in the Danube River Basin and Black Sea, 11 Apr. 2000. The GEF in 1998 also financed a second similar project for the Dneipro River, a three-littoral State river basin (Ukraine, Belarus and the Russian Federation), also responsible for nutrient load input in the Black Sea. See UNDP Doc. RER/98/ G31/A/1G/3, Final Evaluation of the GEF Project, Preparation of a Strategic Action Programme (SAP) for the Dnieper River Basin and Development of SAP Implementation Mechanisms (2005). 1142 Stockholm Convention on Persistent Organic Pollutants, 22 May 2001, 2256 U.N.T.S. 118 [hereinafter “Stockholm Convention”]. 1143 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 22 March 1989, 1673 U.N.T.S. 57. 1144 Rotterdam Convention for the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, 10 Sept. 1998, reprinted in 38 ILM 1734 [hereinafter “Rotterdam Convention”]. 204 Chapter VI

The relevant provisions of the 1982 LOSC include crosscutting provisions such as articles 192, 194, 198 and 199, and the land-based specific provisions codified in articles 207 and 213. Article 192 imposes a general duty on States to protect and preserve the marine environment. Article 194 requires that States take all the necessary measures to prevent, reduce and control marine pollution based on the “best practicable means available” and within their capabilities, against any source of pollution, including land-based pollution.1145 The obligation of co-operation permeates the general provisions on protection of the marine environment and including those specifically addressing land-based pollution. The role of inter-state co-operation is a fundamental element in the prevention of transboundary pollution. Article 194(2), codifies the international customary law duty of sic utere iure tuo ut alterum no laedus, and imposes a clear and unqualified obligation on States to not engage in activities that will cause pollution in other states.1146 Moreover, article 198 establishes a duty on states to notify other states, and the competent international organizations, that may be affected in cases where there is an “imminent danger” of pollution damage to the marine environment. This article applies to all sources of pollution. Articles 207 and 213 specifically address land-based pollution. Article 207 imposes a firm obligation on States to take legislative action by adopting laws and regulations to “prevent, reduce and control pollution of the marine environment from land-based sources, including rivers, estuaries, pipelines and outfall structures, taking into account internationally agreed rules, standards and recommended practices and procedures.” The list of sources is indicative and not exhaustive. Article 207 also includes a regional dimension, relevant for the Black Sea, where under sub- paragraph 3, States must “endeavour” to harmonize their polices at the regional level. In sub-paragraph 4 States are to “endeavour” to establish global and regional rules, standards and recommended practices and procedures to meet the obligations, taking into account inter alia characteristic regional features, and also acting through the competent international organizations or diplomatic conferences. How- ever, these provisions are aspirational and provide more a guidance to States than impose concrete duties. Nonetheless, they underline the need and importance for regional action. Article 235 on responsibility and liability, also a crosscutting provision, broadly holds States legally responsible for the fulfillment of their international obligations to protect and preserve the marine environment, in accordance with international law.1147 Furthermore, States are under an obligation to ensure that their national legal system provide for “adequate and prompt compensation or other relief ” for

1145 Article 194(1). 1146 Specifically, States are obligated to “take all measures necessary to ensure that activities under their jurisdiction or control” to not cause damage pollution to other States, and that pollution in their jurisdiction or under their control does not spread beyond areas where they exercise sovereign rights, which would include area of high seas.” 1147 Article 235(1). Land-based Sources of Pollution: The Black Sea and Beyond 205 damage caused by pollution of the marine environment by a natural or juridical person under its jurisdiction.1148 To ensure “prompt and adequate compensation” States must co-operate in the implementation of existing international law and the further development of international law in relation to responsibility and liability for damage caused by pollution of the marine environment, including the settlement of related legal disputes, and development of criteria and procedures for payment of adequate compensation that would include compulsory insurance or compensation funds. However, no international or regional instrument has been developed or adopted for liability and compensation regimes except for vessel-based sources of oil pollution and pollution from hazardous substances.1149 Such a regional regime would need to determine whether liability would be strict or negligence based. For example, regional standards requiring mandatory insurance for certain industries in engaged in high risk activities for land-based pollution could be developed. An important aspect of a regional regime would include creating a regional compensation fund to cover damages that either exceed insurance limits or are not covered by insurance policies. Once again, the IMO provides a model with the International Oil Pollution Fund (IOPF), which is administered by member States.1150

2.2 “Soft” but Firm Obligations, Principles and Standards at the Global Level The initial seeds for developing a global instrument for regulating land-based pollution were sown with the development of the Protection of the Marine Environment Against Pollution from Land-based Sources (Montreal Guidelines),1151 which was followed by the 1995 Washington Declaration, and then the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities, a non-binding instrument adopted in 1995 by 108 states and the European Com- mission.1152 Notwithstanding the normative distinction between legally binding and non-binding instruments, according to Vinogradov and Kirk, the practical impact of the 1995 GPA has been important. The authors note that “[a]lthough these two types of instruments are different from the point of view of their legal validity and effect (binding and non-binding), the boundary between them in terms of their substantive content is rather hazy and porous.”1153 The 1995 GPA provides States with guidelines to implement the commitments undertaken during the 1992 UNCED Conference and Agenda 21 for addressing

1148 Article 235(2). 1149 Supra note 932. 1150 Id. 1151 Montreal Guidelines for the Protection of the Marine Enviornment Against Pollution from Land-Based Sources, Dec. 13/18/II of the Governing Council of UNEP, 24 May 1985. 1152 UNEP (OCA)/LBA/IG.2/7 (5 December 1995) [hereinafter “1995 GPA”]. 1153 Id., at 2. 206 Chapter VI land-based sources of pollution.1154 One important aspect of the 1995 GPA lies in its emphasis on adopting a regional and co-operative approach to addressing land- based sources of marine pollution, especially through the mechanism of the Regional Seas programmes. It builds upon the UNEP initiated 1985 Montreal Guidelines, as well as the mandate of the 1992 UNCED provisions for protection and preservation of the marine environment and Chapter 17 of Agenda 21, which included a specific provision related to land-based sources of marine pollution.1155 The objective of the 1995 GPA is to create dynamic and adaptive programmes of action based on an integrated coastal management (ICM) framework.1156 Other key principles endorsed by the 1995 GPA are the ecosystem based approach1157 and the integrated coastal and river basin management approach (ICARM).1158 In addition, relating to the general duty to protect and preserve the marine environment,1159 the GPA identifies the 1982 LOSC as the primary legal basis under international law for the prevention of land-based sources of marine pollution. The GPA provides an outline for actions to be taken for land-based sources of marine pollution at three different levels: the national level,1160 the regional level through cooperative action,1161 and the international level.1162 At the regional level, the GPA stresses the “crucial” importance of regional and subregional co-operation in order for actions to be successful in addressing land-based pollution, especially in enclosed and semi-enclosed seas. According to the GPA, regional co-operation provides for more accurate identification and assessment of the problems in a specific geographic area and the necessary priorities for action. Regional co-operation also provides for a “more cost effective and efficient” implementation of programmes of action In regard to the institutional aspects of regional and subregional arrangements, the GPA includes a list of actions States should take such as inviting multilateral

1154 Id., para. 14–15. On UNCED and land-based pollution, see Arthur Lyon Dahl, Land-based pollution and integrated coastal management, 17 MAR. POL’Y 561 (1993). 1155 Id., para. 17.24–17.29. 1156 Id., para. 18. 1157 Ecosystem Based Management Markers for Assessing Progress (UNEP-GPA) available at http://www.unep.org/pdf/GPA/Ecosystem_based_Management_Markers_for_Assessing_Progress.pdf. 1158 Id., at 7. 1159 Examples of such international conventions listed in the GPA are the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 12 Dec. 1972, 1046 U.N.T.S. 138, amended by the 1996 London Protocol; Basel Convention on the Control of Trans- boundary Movements of Hazardous Wastes and their Disposal, 22 Mar. 1989, 1673 U.N.T.S. 57; Convention on Biological Diversity, 5 June 1992; 1760 U.N.T.S. 79 United Nations Framework Convention on Climate Change; Regional Seas Conventions, 9 May 1992, 1771 U.N.T.S. 107, and Kyoto Protocol to the United Nations Framework Convention on Climate Change 11 Dec. 1997, 2302 U.N.T.S. 148; International Convention for the Prevention of Pollution from Ships (MARPOL 73/78), 17 Feb. 1978, 2057 U.N.T.S. 68. 1160 Chapter II “Actions at the National Level”, Supra note 72, at 10. 1161 Chapter III “Regional Cooperation” Id., at 17. 1162 Chapter IV “International Cooperation” Id., at 20. Land-based Sources of Pollution: The Black Sea and Beyond 207 financing agencies to co-operate in the implementation of regional agreements on developing countries.1163 The GPA also highlighted the importance of co-operation between land-locked river basin States linked to a marine region or sub-region. These States are exhorted to participate in the relevant regional or sub-regional arrangements in relation to identification and characterization of drainage basins that closely linked to the degradation of the coastal areas and marine environment.1164 As will be discussed further on, this linkage is relevant to the Black Sea and, in particular, in relation to the Danube River Basin. The GPA further recommends that in the development and implementation of regional programmes of action, consideration be given to, inter alia, the following:

• Steps towards harmonization of environmental and control standards for emissions discharges of pollutants; • Steps to protect critical habitats and endangered species; • Exploring the use of innovative financing mechanisms that will assist the implementation of national and regional programmes of action; • Building capacity. . . . as well as contingency planning, monitoring and assessment, including environmentally sound technology assessment; • Arrangements to ensure that decision-making at the regional level is based in an integrated planning and management approach adopted at the national level; and • Establishment of linkages with regional or subregional fisheries arrangement, as well as other mechanisms dealing with conservation of marine species, to promote collaboration in the exchange of data and information and mutual reinforcement in the achievement of respective objectives.1165

The GPA identifies specific sources of land-based pollution for international co- operation including wastewater treatment, persistent organic pollutants, sewage, radioactive substances, heavy metals, oils (hydrocarbons), nutrients, sediments, litter and physical alteration and destruction of habitat.1166 In addition to the 1995 GPA, other important soft law instruments relating to the protection and preservation of the marine environment from land-based sources of pollution include Chapter 17 of Agenda 211167 and the 2002 JPOI. Chapter 17 of Agenda 21 recognized the role of regional and sub-regional action in addressing land-based sources of pollution, and specifically urged States to both assess the effectiveness of existing regional agreements and promote the development of new

1163 Id. 1164 Id., Paragraph 34 (a). 1165 Id., at 19. 1166 Id., at paras. 84–149. 1167 Id., paras. 17.24–17.43. 208 Chapter VI regional agreements, where appropriate.1168 The JPOI also encourages advanced implementation of the GPA and the Montreal Declaration.1169

3. UNEP Regional Seas Framework for Prevention of Land-based Pollution

3.1 UNEP Regional Seas Programme and Land-based Sources of Pollution The first regional conventions to address land-based sources of pollution were the 1974 Convention of the Protection of the Marine Environment of the Baltic Sea [the Helsinki Convention], the 1974 Convention for the Protection of the Marine Environ- ment from Land-based Sources of Pollution [Paris Convention], and the UNEP-based 1976 Barcelona Convention]1170 and its Protocol on Land-based Sources of Pollution.1171 These early regional conventions and protocols regulating land-based sources of marine pollution were what Vinogradov described as “first generation” instruments.1172 The author explains how the first generation of “shoreline” protocols did not cover inland activities within the drainage area discharging into the sea and referred only to sources of pollution and not activities.1173 Second generation protocols, such as the revised Mediterranean Land-based Pollution Protocol,1174 the Cartagena Protocol1175 and revised Black Sea Land-Based Pollution Protocol,1176 adopt a more holistic

1168 Id., paras. 17.24, 17.25(b) and (c). 1169 Supra note 418, at para. 33. 1170 1976 Convention for the Protection of the Mediterranean Sea Against Pollution, as amended, 10 June 1995, renamed the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean. 1171 The Convention for the Prevention of Marine Pollution from Land-based Sources, (1974 Paris Convention) 4 June 1974, 13 ILM 635. It was the first regional instrument regulating land-based sources of pollution into the marine environment. It was replaced in 1992 with the Convention for the Protection of the Marine Environment of the North-East Atlantic, (OSPAR Convention), 22 Sept. 1992, 31 ILM 1312 (1993). Other instruments regulating land-based pollution at the regional level include the UNEP Regional Seas 1980 Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources and Activities (Athens LBS Protocol), Protocol for the Protection of the South-East Pacific Against Pollution from Land-Based Sources, (Quito LBS Proto- col) and the Kuwait LBS Protocol (1990). For a detailed discussion on the Quito Protocol, see David M. Dzidzurno, Marine Environment Protection under Regional Conventions: Limits to the Contribu- tion of Procedural Norms, 33 OCEAN DEV. & INT’L L. 263–316, 274–276 (2002). 1172 Sergei Vinogradov, Marine Pollution via Transboundary Watercourses – An Interface of the ‘Shoreline’ and ‘River-Basin’ Regimes in the Wider Black Sea Region, 22 INT’L J. MAR. & COASTAL L. 585–620, 591 (2007). 1173 Id. 1174 Antoinette Hildering, Andrea M. Keessen & Helena F.M.W. van Rijswick, “Tackling pollution of the Mediterranean Sea from land-based sources by an integrated ecosystem approach and the use of the combined international and European legal regimes”, 5 UTRECHT L. REV. 80 (2009); Tullio Scovazzi, Mediterranean – The Amendments to the Protocol for the Protection of the Mediter- ranean Sea against Pollution from Land-based Sources, 11 INT’L J. MAR. & COASTAL L. 571 (1996). 1175 1999 Protocol Concerning Pollution From Land-Based Sources and Activities to the Con- vention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, 6 Oct. 1999. (Entered into effect on 13 August 2010). 1176 7 Apr. 2009. Available at http://www.blacksea-commission.org/_table-legal-docs. Land-based Sources of Pollution: The Black Sea and Beyond 209 approach based on integrated marine and coastal zone management, and extend their scope of application to a broader basin-wide approach.1177 The UNEP Regional Seas Programme is the leading international programme for promoting regional co-operation in the norm development process and the management of marine environment protection. Given the lack of any single binding global land-based pollution instrument other than the limited number of applicable provisions in the 1982 LOSC, there is no base line against which to assess the regional level of implementation. The only references are the non-binding 1995 GPA and the 2002 WSSD and JPOI. Of the eighteen regional seas programmes in addition to the Black Sea Programme, eight have adopted specialized protocols or annexes regulating land-based pollution.1178

3.2 Applicable Principles The various regional seas protocols or instruments on land-based pollution prescribe different principles and levels of obligations. The 1999 Protocol Concerning Pollution From Land-Based Sources and Activities to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (WCLBS)1179 imposes a general obligation for the parties to take the necessary measures to prevent, reduce and control land-based sources of marine pollution. The WCLBS Protocol requires the use of environmental impact assessment for land-based activities likely to cause substantial pollution or significant and harmful changes to the marine environment.1180 The WCLBS Protocol also requires public participation and access to information relating to the implementation of the Protocol,1181 as well as the application of most appropriate technology (MAT) and management approaches, such as integrated management.1182

1177 Sergei Vinogradov, Marine Pollution via Transboundary Watercourses, supra note 1172. 1178 These are the (1) Wider Caribbean Protocol Concerning Pollution from Land-Based Sources and Activities, supra note 1176; (2) Protocol for the Protection of the South East Pacific Against Pollution from Land-Based Sources, 1983; (3) ROPME Protocol for the Protection of the Marine Environment against Pollution from Land-Based Sources (1990); (4) Red Sea & Gulf of Aden Pro- tocol Concerning the Protection of the Marine Environment from Land-Based Activities in the Red Sea and Gulf of Aden (2005); (5) Protocol for the Protection of the Mediterranean Sea against Pol- lution from Land-Based Sources and Activities, 7 Mar. 1996, replacing the Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources; (6) Eastern Africa, Protocol for the Protection of the Marine and Coastal Environment of the Western Indian Ocean from Land- Based Sources and Activities, 31 Mar. 2010. The non-UNEP administered HELCOM and OSPAR programmes have included the regulation of land-based sources of pollution within the framework as annexes and not separate protocols. The difference in effect is, however, similar to that of separate protocol. The Caspian Regional Seas Programme has developed a draft Protocol for the Protection of the Caspian against Pollution from Lands Based Sources and Activities. 1179 9 Oct. 1999. (Entered into effect on 13 August 2010). 1180 Article VII. 1181 Article X. 1182 Article III. See David M. Dzidzurno, Marine Environment Protection under Regional Conven- tions: Limits to the Contribution of Procedural Norms, 33 OCEAN DEV. & INT’L L. (2002) 263–316, 272. 210 Chapter VI

The HELCOM and OSPAR Conventions adopted a different approach to regulating land-based sources of marine pollution at the regional level. Rather than use specialized protocols they employ technical annexes or appendices to the main Con- vention, which have the same legal effect as protocols. The HELCOM Convention imposes an obligation on the Parties to prevent and eliminate pollution of the Baltic Sea area from land-based sources by using, inter alia, BEP for all sources and BAT for point sources of pollution.1183 In addition, the Parties are required co-operate in the development and adoption of specific programmes, guidelines, standards or regulations concerning emissions and inputs to water and air, environmental quality, and products containing harmful substances and materials.1184 Furthermore, a special permit is required for the direct or indirect release from point sources of harmful substances into the marine environment.1185 The Convention requires the use of environmental impact assessments,1186 and lists as fundamental principles and obligations the requirement to apply the precautionary principle and the polluter pays principle.1187 The Convention does not require public participation, although it does require that information on the condition of the Baltic Sea be made available to the public.1188 The OSPAR Convention imposes a general obligation on the Parties to take all possible steps to prevent and eliminate pollution from land-based sources based on the technical criteria in Annex I. Similar to HELCOM, the OSPAR Convention requires application of the precautionary principle, the polluter pays principle, and the use of BET and BEP.1189 Another point of similarity with the HELCOM Conven- tion is that the OPSAR Convention requires public access to information but has no provision on public participation.1190 The OSPAR Convention also includes a provision on “compliance” which requires the OSPAR Commission to assess compliance of the individual Parties with the Convention and decisions and recommendations adopted based on periodic reports, and to take the necessary steps to bring about full compliance.1191 What these steps would be have not been specified in the Conven- tion, but presumably could include a variety of measures from warnings to punitive sanctions. However, the emphasis appears to be on facilitating compliance by adopting measures that would assist the Contracting Party in question to ultimately be in full compliance. An important component of the OSPAR compliance mechanism is a

1183 Article 6(1). 1184 Article 6(2) and based upon the criteria in Annex III. 1185 Article 6(3). 1186 Article 7. 1187 Articles 3(2) and 3(4). 1188 Article 17. 1189 Article 2. 1190 Article 9. 1191 Article 23. For an overview of the OSPAR compliance mechanism see Rainer Lagoni, Mon- itoring Compliance and Enforcement of Compliance Through the OSPAR Commission, in Marine Issues: From a Scientific, Political and Legal Perspective, 155 (Peter Ehlers, Elisabeth Mann Borgese, Rüdiger Wolfrum & Cristina Hoss, eds., 2002). Land-based Sources of Pollution: The Black Sea and Beyond 211 requirement for the Parties to report to the Commission “at regular intervals.”1192 The Parties are required to report on a broad set of activities including measures taken to implement the Conventions as well as decisions and recommendations adopted by the Commission.1193 Based on these reports, the Commission is able to make assessments on the level of compliance by the Parties and is also empowered under article 23 of the Convention take the necessary steps to bring about full compliance. While the Convention does not expressly provide the Commission with powers of enforcement, the broad language of article 23 and the ability of the Commission to adopt binding decisions could be interpreted as such.1194 The revised Mediterranean LBS Protocol on Land-based Pollution1195 imposes an obligation on the Parties to “take all appropriate measures to prevent, abate, combat and eliminate to the fullest possible extent pollution of the Mediterranean Sea Area caused by discharges from rivers, coastal establishments or outfalls, or emanating from any other land-based sources and activities within their territories, giving priority to the phasing out of inputs of substances that are toxic, persistent and liable to bioaccumulate.”1196 Incorporating by reference article 4 of the Barcelona Conven- tion, the Protocol adopts the precautionary principle,1197 the polluter pays principle, use of environmental impact assessment and of the best available techniques and the best environmental practice. The scope of application of the Mediterranean LBS Protocol was expanded to apply to hydrologic basin including brackish waters.

4. European Union

4.1 European Water Framework Directive The European Union has adopted several important directives for improving the quality of EU waters, including marine waters. In 2000 the EU adopted the Water Framework Directive (WFD)1198 which aims to protect and improve the quality of EU fresh water supply through a comprehensive regulatory mechanism that is based

1192 Article 22. 1193 Lagoni, Monitoring Compliance and Enforcement of Compliance Through the OSPAR Commis- sion, supra note 1192, at 159–160. 1194 However, as Lagoni points out the Commission lacks such enforcement powers as a binding decision requires a unanimous vote under article 13 of the OPSAR Convention. Id., at 162. 1195 Protocol on the Protection of the Mediterranean Sea against Pollution from Land-Based Sources (LBS Protocol) May 17, 1980; June 17, 1983, amended as Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources and Activities, March 7, 1996. Not yet entered into force. See Hildering, Keessen et al., supra note 1174. 1196 Article 1. 1197 The definition of the precautionary principle is provided by article 3(1) of the revised Barce- lona Convention as “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” 1198 Supra note 47. 212 Chapter VI on a holistic approach to water policy. While its scope of application is limited to inland surface waters, transitional waters, coastal waters and groundwater1199 its application is also transfrontier. It seeks to eventually integrate water policy with other areas such as transport, energy, agriculture and fisheries, and not to restrict its ambit of influence within the Community borders.1200 Implementation of the WFD requires Member States to, inter alia, co-operate and establish river basin districts as part of an integrated basin-wide approach to water management in place of the traditional narrow focus on national boundaries.1201 The WFD provisions concerning rivers basins1202 and coastal waters1203 will have a direct impact upon the Black Sea coastal waters. Given the significant role of the Danube River in the pollution of the Black Sea, the implementation of the WFD will provide a direct benefit by improving the Black Sea marine and coastal environment. The International Commission on the Protection of the Danube River (ICPDR) already provides a framework for river basin management between the Danube River and the Black Sea. The urgent need for involvement by the EU on the environmental problems involving between the Danube River Basin and the Black Sea States was highlighted and in 2001 by the European Commission.1204 In the same year Ministers from the wider Black Sea Region1205 and the Danube Basin signed a Declaration that both reaffirmed their commitment to as contracting parties to the implementation of the Danube River Protection Convention (DRPC) and the Con- vention on the Protection of the Black Sea (ICPBS), recognized the benefits for all states to harmonize their laws with European environmental laws, and also included a statement of intent to implement water policy based on a river basin management approach in line with that of the European Union’s WFD.1206

1199 Articles 1 and 13. 1200 See Preamble, paragraphs 16 and 35; Article 3(4) and (5) for international river basins. 1201 Article 2(15) defines a river basin district as “. . . the area of land and sea, made up of one or more neighbouring river basins together with their associated ground waters and coastal waters, which is identified under Article 3(1) as the main unit for management of river basins.” (Emphasis added). 1202 Article 3. 1203 Coastal water for purposes of the WDF is defined surface water on the landward side of a line, every point of which is at a distance of one nautical mile on the seaward side from the nearest point of the baseline from which the breadth of territorial waters is measured, extending where appropriate up to the outer limit of transitional waters. Art. 2(7). 1204 COM (2001) 615 final. Environmental co-operation in the Danube – Black Sea Region; See also Mustafa Aydin, Europe’s New Region: The Black Sea in the Wider Europe Neighborhood, 5 Southeast & Black Sea Stud. 257–283, 261 (2005). 1205 The “Wider Black Sea Region” includes the State members of the Organization for Black Sea Economic Cooperation (BSEC). See supra note 527. 1206 Declaration on Water-related Ecosystems in the Wider Black Sea Region, adopted in Brus- sels, 26 Nov. 2001. The Declaration was signed by Albania, Austria, Belarus, Bosnia and Herzegovina, Bulgaria, Croatia, the Czech Republic, Former Yugoslav Republic of Macedonia, Germany, Georgia, Hungary, Moldova, Poland, Romania, Slovak Republic, Slovenia, Turkey, Ukraine, and Yugoslavia. The Russian Federation did not sign the Declaration. Land-based Sources of Pollution: The Black Sea and Beyond 213

The WFD assures long-term implementation and close monitoring of water quality by the river basin district.1207 Furthermore, the Directive’s emphasis on public participation should promote wider public and stakeholder participation throughout the Black Sea in the management of water resources. The Community emphasis on public participation in environmental matters was further reflected in the adoption of Directive 2003/35/EEC on public participation and access to justice.1208 The WFD established clear objectives to be reached by the Member States no later than fifteen years after the WFD goes into effect. The Directive also includes the Common Implementation Strategy (CIS) whose purpose is to develop a common understanding and guidance for the implementation of the WFD amongst the member States and Norway.1209 The WFD is an integral part and a priority of the harmonization process for the three Black Sea candidate States and will necessarily impact co-operation in land-based pollution management throughout the region. One of the problems with the regional seas programs is the potential conflict between implementation the WFD and the regional protocols for land-based sources of pollution where there are non-EU member States. The Baltic Sea is an example in that the Russian Federation is the only State that is not part of the EU. HELCOM addressed this potential problem by deciding for purposes of land-based pollution and implementation of the WFD that it would confine its role to one of a watchdog and middleman between Russia and the Baltic States that are members of the EU.1210 In addition, the EU has also provided important funding to Russia for sewage water treatment on the St. Petersburg River, the single greatest source of pollution to the Baltic Sea.1211

4.2 Urban Wastewater Directive In addition to the WFD, the Urban Waste Water (UWW) Directive has direct implications for coastal waters and is very important in the effort to control and prevent eutrophication in coastal waters, one of the key problems facing the Black Sea. The UWW requires that each Member State make lists of sensitive and less sensitive areas for receipt of treated waters.1212 It also establishes urban wastewater

1207 Article 13(7). 1208 Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003. providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC. O.J. (L 156/17). 1209 The CIS was concluded between the European Commission, the Member States and Norway in 2001. 1210 Laura M. Schaefer, Developments in Land-Based Pollution in 2004, COLO. J. INT’L ENVTL. & POL’Y Y.B. 183, 190–91 (2004). 1211 The EU provided a 50 million euro grant to St. Petersburg for treating sewage and European Banks gave 107 million euros in loans to the city. Id. 1212 Article 5. See also Nitrates Directive 91/676/EEC O.J. 1991 (L. 375). 214 Chapter VI discharge requirements for sensitive areas identified in Annex II.A (a).1213 Further- more, it established benchmarks based on population size for the construction of collection systems and wastewater treatment facilities that discharge into sensitive areas. The last benchmark was for 31 December 2005.1214 However, an extensive derogation was negotiated for both Bulgaria and Romania. These countries are not responsible for full implementation of articles 3, 4 and 5(2) until 2014 and 2015 respectively.1215 Given the lack of adequate urban wastewater treatment plants along the Black Sea coast, the implementation of the UWW will be an expensive process that will take years to complete, which is clearly the reason underlying the lengthy Bulgarian and Romanian derogation. Nevertheless, if eutrophication is to be controlled in the Black Sea, implementation of the UWW must be given a priority. And if the UWW is to have any real impact on the Black Sea, a similar standard must be implemented for the remaining Black Sea coastal States. For this reason, co-operation and coordinated efforts between the EC and the BSC on this issue are critical.

4.3 Marine Strategy Framework Directive In 2008 the EU adopted the MSFD,1216 which is considered to be the environmental pillar of the broader EU Integrated Maritime Policy.1217 It establishes the framework by which member States are to take the necessary measures “to achieve or maintain good environmental status in the marine environment by the year 2020 at the latest.”1218 It applies to all marine waters, which are defined in Article 3(1) to include the “waters, the seabed and subsoil on the seaward side of the baseline from which

1213 Annex II. 1214 Articles 3(1), 4 and 7. 1215 Although intermediate benchmark dates were provided. Treaty Concerning the Accession of Bulgaria and Romania Accession Protocol and its Annexes, 25 Apr. 2005. Available at http:// europa.eu.int/comm/enlargement/negotiations/treaty_of_accession_2005/pdf/Accession_Protocol_ Bulgaria_Romania.pdf. 1216 Supra note 48. 1217 See Timo Koivurova, A Note on the European Union’s Integrated Maritime Policy, 40 OCEAN DEV. & INT’L L. 171–183 (2009); See Lawrence Juda, The European Union and Ocean Use Manage- ment: The Marine Strategy and the Maritime Policy, 38 Ocean Dev. & Int’l L. 259–282 (2007); Lawrence Juda, The European Union and the Marine Strategy Framework Directive: Continuing the Development of European Ocean Use Management, 41 Ocean Dev. & Int’l L. 34–54 (2010); Richard Barnes, Current Legal Developments the European Union: The Marine Strategy Framework Directive 25 Int’l J. Mar. & Coastal L 81–91 (2010); Till Markus, Sabine Schlacke & Nina Maier, Legal Implementation of Integrated Ocean Policies: The EU’s Marine Strategy Framework Directive, 26 Int’l J. Mar. & Coastal L 59–90 (2011); Ronán Long, The Marine Strategy Framework Directive: A New European Approach to the Regulation of the Marine Environment, Marine Natural Resources and Marine Ecological Services, 29 J. Energy & Nat. Resources L. 1 (2011). 1218 Article 1. ‘Good environmental status is defined in Article 3.5 as “the environmental status of marine waters where these provide ecologically diverse and dynamic oceans and seas which are clean, healthy and productive within their intrinsic conditions, and the use of the marine environment is at a level that is sustainable, thus safeguarding the potential for uses and activities by current and future generations . . .” Supra note 48. Land-based Sources of Pollution: The Black Sea and Beyond 215 the extent of territorial waters is measured extending to the outmost reach of the area where a Member State has and/or exercises jurisdictional rights, in accordance with the UNCLOS.”1219 Moreover, the MSFD requires member States to take into account the transboundary effects on the quality of the marine environment of third States in the same marine region or subregion.” This provision has direct relevance for the Black Sea, which is one of the identified four EU marine regions under the MSFD.1220 Furthermore, the member States of each marine region or subregion are required to “establish a comprehensive set of environmental targets and associated indicators for their marine waters so as to guide progress towards achieving good environmental status in the marine environment.”1221 An important component of the MSFD is its reliance on the development of marine strategies based on the ecosystem approach1222 and close co-operation with the regional seas programmes.1223 Accordingly, Bulgaria and Romania, as the two EU member States are required to implement the MSFD in the Black Sea. This in turn, however, requires co-operation with the non-EU member States if “good environmental status” is to be achieved in the Black Sea. Clearly, regulation of land-based pollution is an important element in fulfilling the mandate of the WSFD, which requires close co-operation at the regional level, including implementation of the revised Black Sea LBS Protocol.

5. The Black Sea

5.1 Protocol on the Protection of the Black Sea Marine Environment against Pollution from Land-based Sources The dominant role of land-based pollution of the marine environment makes the Black Sea-LBS Protocol the most important instrument in the “Bucharest system.”1224 Land-based pollution is also the most challenging of the causes of environmental degradation for marine environments, including the Black Sea, because of its diverse and diffuse sources as well as its broad geographic range. The Black Sea-LBS was adopted in 1992 along with the adoption of the framework Bucharest Convention. However, in 2004 a revised Black Sea-LBS Protocol was developed and adopted in 2009.1225

1219 The use of “UNCLOS” in this case is reference to the 1982 LOSC. 1220 Supra note 48. Under Article 4 the four marine regions under the Directive are the Baltic Sea, the North-east Atlantic Ocean, the Mediterranean Sea and the Black Sea. 1221 Id., Article 10. 1222 Id., Articles 1.3 and 5. 1223 Id., Article 6. 1224 Chapter 17 of Agenda 21 recognized that seventy percent of marine pollution came from land-based sources. Id., paragraph 17.18. 1225 Revised Protocol on the Protection of the Marine Environment of the Black Sea from Land- Based Sources and Activities, 7 Apr. 2009. Not yet entered into force. All six Black Sea States have signed the revised Black Sea-LBS Protocol but only Georgia has ratified it. The revised Protocol 216 Chapter VI

The 1992 Black Sea-LBS Protocol is a relatively simple Protocol consisting of seven articles and three annexes. In addition to a duty imposed on the parties to take all necessary measures to prevent, reduce and control pollution by land-based sources1226 pursuant to Article XV of the Bucharest Convention, it specifically obligates the Par- ties to co-operate in developing common guidelines, standards or criteria for “special characteristics of marine outfalls” and for undertaking research on specific effluents requiring separate treatment and concerning the quantities of discharged substances and matters listed in Annexes I1227 and II1228 and the methods for their discharge. The Protocol requires permits to take into consideration factors as enumerated in Annex III.1229 The 1992 Black Sea-LBS Protocol, however, was adopted before the 1995 Wash- ington Conference1230 and the adoption of the 1995 GPA and before Bulgaria and Romania acceded to the European Union in 2007 bringing the Black Sea under the European Union legislation and notably the 2004 Water Framework Directive.1231 Consequently, the revision and updating of the 1992 Black Sea-LBS Protocol was one of the key objectives of the GEF funded BSERP.1232 The revised Black Sea-LBS Protocol differs significantly from the 1992 Black Sea-LBS Protocol in both breadth and scope.

will enter into effect when all six Black Sea States have ratified and deposited their instrument of ratification in accordance with Article XX of the Bucharest Convention. Available at http://www .blacksea-commission.org/_table-legal-docs.asp. 1226 Article 6. 1227 Annex I lists as hazardous substances and matter: organotin compounds, organohalogen compounds. Persistent organophosphorous compounds, mercury and mercury compounds, cadmium and cadmium compounds, persistent substances with proven toxic carcinogenic, teratogenic or mutagenic properties, used lubricating oils, persistent synthetic materials which may float, sink or remain in suspension, radioactive substances and wastes, including used radioactive fuel. 1228 Annex II lists as noxious substances and matter: biocides and their derivatives not covered in Annex I; cyanides, fluorides, and elemental phosphorus, pathogenic micro-organisms, non- biodegradable detergents and their surface-active substances, alkaline or acid compounds, thermal discharges, substances which because of the quantity in which they are discharged may be harmful, and the following elements and their compounds, zinc, copper, nickel, chromium, selenium, arsenic, antimony, molybdenum, titanium, tin, barium, beryllium, boron, uranium, vanadium, cobalt, thallium, tellurium, silver and crude oil and hydrocarbons of any origin. 1229 Annex III lists these as A. Characteristics and composition of the waste; B. Characteristics of waste constituents with respect to their harmfulness C. Characteristics of discharge site and receiving marine environment; D. Availability of waste technologies; and E. Potential impairment of marine ecosystems and sea-water uses. 1230 1995 Conference to adopt a Global Programme of Action for the Protection of the Marine Environment from Land-based Activities, Washington, DC, USA, 23 October–3 November 1995. 1231 See supra note 47. 1232 Sergei Vinogradov, Protection of the Black Sea Against Land-Based Pollution: Drafting Revised LBP Protocol Concept & Principal Elements, Paper presented at the First Workshop of the Black Sea Group of Legal Experts, held 19 April 2005 in Istanbul, Turkey (unpublished manuscript. On- file with the Istanbul Bilgi Marine Law Research Center). Dr. Vinogradov drafted the Revised LBS Protocol. Land-based Sources of Pollution: The Black Sea and Beyond 217

The revised Black Sea-Land-Based Pollution Protocol, with some modifications, was adopted in 2009 by all six Black Sea States.1233 But to date it has only been ratified by Georgia.1234 It consists of a total of twenty-four articles and three annexes. The purpose of the 2009 revised Black Sea LBS Protocol, as provided in article 1, is to “prevent, control and to the maximum extent possible eliminate pollution from land-based sources and activities in order to achieve and maintain a good ecological status of the Black Sea, including its marine and coastal ecosystems.” This marks a significant change from the 1992 Black Sea LBS Protocol, which was limited to the traditional objective to “prevent, reduce and control” pollution of the marine environment. Furthermore, the revised 2009 Black Sea-LBS Protocol includes linkages to European Union standards, such as the express qualitative objective of “good ecological status” that parallels the European Union WFD. The geographic scope of application of the 2009 revised Black Sea-LBS Protocol includes the marine environment of the Black Sea, the coastal areas including brackish waters, marshes and coastal lagoons, and ground waters communicating with the Black Sea.1235 The 1992 BS-LBS applied only to the areas as defined by Article 1 of the Bucharest Convention and the waters on the landward side of the base line from which the territorial sea is measured, and up to fresh-water limit where this is applicable. The 1992 Black Sea-LBS did not mention ground waters. The revised Protocol further differs from its predecessor in that it applies to diffuse and point sources of land-based pollution with “measurable adverse effect” on the marine or coastal environment,1236 to atmospheric sources of land-based pollution,1237 and to activities that may directly or indirectly affect the marine environment or coastal area, such as activities that may physically alter the natural state of the coastline or destroy the landscape or habitats.1238 The 2009 revised Black Sea-LBS in contrast to the 1992 approach mandates the application of principles of international environmental law, such as the precautionary principle,1239 the polluter pays principle,1240 use of environmental impact assessments,1241 and strategic environmental assessment (SEA) which takes into account health aspects, in the development of plans and programmes.1242 In addition, the Parties are required to co-operate in developing environmental impact assessment procedures for activities under their control or jurisdiction that are

1233 Supra note 1226. 1234 Georgia ratified the revised LBS Protocol on 24 September 2009. See http://www.blacksea- commission.org/_table-legal-docs.asp. 1235 Article 3. 1236 Article 3(c)(i). 1237 Article 3(c)(ii). 1238 Article 3(c)(iii). 1239 Article 4(2)(a). 1240 Article 4(2)(b). 1241 Article 4(2)(c). 1242 Article 4(2)(d). 218 Chapter VI likely to have a significant adverse effect on the marine environment of other States.1243 Application of the integrated management of coastal zones and watersheds, on the other hand, is encouraged but not mandated.1244 In implementing the Protocol the Parties are obliged to employ or promote the best available techniques (BAT) and best environmental practices (BEP).1245 The 2009 revised Black Sea-LBS also makes express reference to promoting access to information on marine and coastal environment to civil society as well as to promote their participation.1246 The 2009 revised Black Sea-LBS also includes several provisions mandating or promoting co-operation at the regional level.1247 Article 6 of the 2009 revised Black Sea-LBS, adopted nearly verbatim Article VI of the 1992 Black Sea-LBS Protocol requiring the Parties, in conformity with Article XV of the Bucharest Convention, to co-operate to “progressively” formulate and adopt, in co-operation with competent organizations, common guidelines and standards or criteria dealing with, pipelines for coastal outfalls,1248 special requirements for effluents needing separate treatment,1249 quality of sea-water used for specific purposes necessary for human and health,1250 living resources and ecosystems, control and progressive replacement of products, installations and industrial and other processes causing significant pollution of the marine environment and coastal areas,1251 and specific requirements concerning the quantities of Annex I substances discharged in accordance with BAT and BEP.1252 Article 12, which addresses environmental impact assessment, requires the Con- tracting Parties to endeavor to develop and adopt regional guidelines and enhance corresponding national regulations for environmental impact assessment of land- based projects and activities likely to cause serious transboundary impact.1253 The 2009 revised Black Sea-LBS Protocol also includes a separate provision on transboundary pollution, which was not part of the 1992 Black Sea-LBS Protocol. Article 10 paragraph 1 of the 2009 revised Black Sea-LBS Protocol, making reference to Article XV paragraph 5 of the Bucharest Convention, requires that the Contracting Party in whose territory the land-based activity will cause or is likely to cause serious transboundary impact on the marine environment or coastal area of one or more of the other Black Sea Contracting Parties, must notify the affected Party through the Black Sea Commission. In addition, in the case of pollution from a watercourse that flows through the territories of two or more Contracting Parties or forms a boundary

1243 Article 4(2)(e). 1244 Article 4(2)(f ). 1245 Article 5(1)(c). 1246 Article 7. 1247 Articles 4(2)(e), (3), Article 5, Article 6, Article 19, Article 11(2), Article 12(1) and Article 15. 1248 Article 6(1)(a). 1249 Article 6(1)(b). 1250 Article 6(1)(c). 1251 Article 6(1)(d). 1252 Article 6(1)(e). 1253 Article 12(1). Land-based Sources of Pollution: The Black Sea and Beyond 219 between them will affect or is likely to affect the marine environment of the Black Sea, the Parties are required to co-operate in ensuring the full implementation of the 2009 revised Black Sea-LBS Protocol.1254 However, there is no express provision for legal responsibility for damages for transboundary pollution that, such as found in article 25 of the HELCOM Convention. There is a notable qualitative difference in the threshold for triggering co-operation in the case of transboundary pollution between paragraphs 1 and 2 of article 10. The duty to notify is triggered in the case of actual or likely serious transboundary impact whereas the threshold trigger for co-operation requires only the sharing of a watercourse that will or is likely to “affect” the Black Sea. The exhortation for co-operation between non-Contracting and Contracting Parties is particularly important given the multitude of watercourses emptying into the Black Sea from Europe and Asia.1255 The provision on public participation stops short of imposing a duty for the Con- tracting Parties to provide for public participation, instead simply requiring that the Parties “endeavour to promote the participation of the public” in relation to those measures necessary for the protection of the marine environment from land-based activities including environmental impact assessments and the decision-making processes relevant to the implementation of the 2009 revised 2009 Black Sea-LBS Protocol. Furthermore, the Parties are required to “facilitate public access” to information concerning the marine environment and measures that have been taken or are planned to be taken for the prevention, control or reduction of pollution. Co-operation is further strengthened with the requirement for Parties to exchange information on regular basis and develop systems and networks for such exchange in order to facilitate the implementation of the Protocol.1256 Article 15 enumerates a list of areas where the Contracting Parties are required to co-operate and provides assistance, beginning with the overall duty to co-operate either bilaterally or on a regional basis through the Commission in the prevention, control or elimination of land-based sources of pollution or activities of the Black Sea. Areas of co-operation include in scientific and technological fields, the development of scientific, technical, educational and public awareness programmes. The 2009 revised Black Sea-LBS Protocol includes a compliance mechanism that was missing from the 1992 Black Sea-LBS Protocol. The Contracting Parties are mandated to develop a “non-confrontational and non-judicial” consultative process to ensure compliance with the Protocol.1257 The Commission is given the responsibility of assessing compliance based on reports submitted under article 16 of the Protocol and other information provided by the Parties, and not from other sources.1258 The Commission has the competence to decide questions of compliance and determine

1254 Article 10(2). 1255 See supra note 260. 1256 Article 13. 1257 Article 17(1). 1258 Article 17(2)(a). 220 Chapter VI

Table 15. Comparison of Regional Seas Land-based Pollution Protocols

Regional Seas BAT BEP Compliance EIA SEA Polluter Precautionary Public ICM Access to Programme Pays Participation Information for LBS HELCOM x x x x x x OSPAR x x x x x x Mediterranean x x x x x Black Sea x x x x x x x x x x (Revised)

the steps to bring about full compliance with the Protocol and decisions adopted, as well as to promote implementation of recommendations adopted by the Commis- sion, including measures to assist the non-compliant Party to fulfill its obligations. This provision closely echoes the compliance provision in the OSPAR Convention. The 2009 revised Black Sea-LBS Protocol is an important instrument for the Black Sea, and when it does eventually enter into effect the regional framework for regulation of land-based sources of pollution in the Black Sea will be more advanced than most other regional seas agreements on land-based pollution.

5.2 Co-operation between the Black Sea and Danube River Regimes The greatest single source of nutrient input into the Black Sea comes from the Danube River. The Volga River is the only river in Europe that is larger than the Danube. The Danube has been described as the “most international river basin the world.”1259 Each year approximately 350 km3 of water flow from the Danube River into the Black Sea. The Danube River basin covers one-third of Europe. The population of the Danube River basin countries is 223 million people of which 83 million live in the Danube River basin.1260 The primary problem for the Danube, and consequently of the Black Sea, is the high level of nutrients being discharged into the river from agriculture (50 %), industry (25 %) and domestic sources (25 %). The threat to the Black Sea marine environment from the Danube basin became a crisis on January 30, 2000 when an estimated 100,000 cubic meters of cyanide-laced water spilled into the Danube from a failed gold mining waste dam near the city of Baia Mare in Romania.1261 The spill killed at least 100 metric tons of fish in the Danube basin alone and poisoned the drinking water for at least two million people.

1259 Communication from the Commission, Environmental cooperation in the Danube-Black Sea Region, COM (2001) 615 Final. 1260 See UNDP/GEF Danube Regional Project website, available at http://www.undp-drp.org/ drp/danube_population.html. 1261 A similar tailing dam burst occurred on 10 March 2000 but of a smaller magnitude in the same region in Baia Borsa, Romania. Land-based Sources of Pollution: The Black Sea and Beyond 221

The magnitude of the spill was compared to the Chernobyl accident.1262 The same pollutants eventually traveled 1200 kilometers directly into the Black Sea.1263 The S.C. Aurul mine cyanide spill raised serious legal issues concerning transboundary pollution and international environmental law.1264 Contamination from old military sites following the dissolution of the USSR presented another significant instance of transboundary pollution. Hungary alone housed 171 Soviet military bases with an estimated clean-up cost of two trillion dollars.1265 Serious environmental problems affecting the Danube also result from problems between Romania and Bulgaria at the Giurgiu – Ruse Gauntlet where over 110 industrial units directly or indirectly discharged into the Danube River and its environs.1266 The international community, through UNEP, EU and the World Health Organization (WHO), undertook to address the political problems caused by the transboundary pollution from the Danube. In addition, a bilateral agreement between Bulgaria and Romania was concluded, which established the Giurgiu–Ruse Environmental Co- operation Commission. This has provided the forum for the two States to meet and exchange information.1267 Since then the EU has played a pivotal role in developing co-operation between Romania and Bulgaria on a number of issues, including problems of transboundary pollution.1268 A fourth threat to the Black Sea was an accident that occurred upstream on the Danube. On October 4, 2010 a flood of toxic red sludge was released from an aluminum plant into the environment reaching the Danube River in what was described as an “ecological disaster.”1269 While there are no reports of red sludge entering the

1262 Aaron Schwabach, From Schweierhalle to Baia Mare: The Continuing Failure of Interna- tional Law to Protect Europe’s Rivers, 19 Va. Envtl l. j. 431 (2000); Chris Hudson, The Role of International Environmental Law in the Protection of the Danube River Basin Law: the Baia Mare Cynande Spill, 37 COLO. J. INT’L ENVT’L L. & AND POL’Y 367 (2001); Alistair S. Rieu-Clarke, An overview of stakeholder participation-what current practice and future challenges? Case study of the Danube Basin, 18 colo. J. int’l envt’l l. pol’y 611 (2007). 1263 Apparently, the SC Aurul mine received a fine in the amount of US$166. Id., at 380. 1264 Hungary brought a law suit against the mine owners for approximately US$97 million. For a detailed examination of the S.C. Aurul mine cyanide spill legal issues. Baia Mare Cynade Spill, Id. 1265 Paul Williams, International Law and the Resolution of Central and East Euro- pean Transboundary Environmental Disputes, 31 (2000). 1266 Williams recounts how the problem of pollution between Bulgaria and Romania resulted in the Bulgarian President cancelling his state visit to Romania. Id., at 36. 1267 Id. 1268 Romania-Bulgaria Cross-Border Cooperation Programme, 2007–2013 (European Regional Developmental Fund, June 2007); See also, Albena Shkodrova & Marian Chiriac, Europe Heals Old Divide Between Bulgaria and Romania, Environmental News Service 25 March 2005. Available at http://www.ens-newswire.com/ens/mar2005/2005-03-25-04.html. 1269 Approximately 35.3 million cubic feet of sludge, containing iron oxide, aluminum, silicon dioxide, calcium oxide, and titanium dioxide, flooded an area of 16 square miles killing people and animals. David Gura, Toxic Red Sludge Spill From Hungarian Aluminum Plant ‘An Ecological Disaster’ The Two-Way NPRs News Blog available at http://www.npr.org/ blogs/thetwo-way/2010/10/05/130351938/red-sludge-from-hungarian-aluminum-plant-spill-an- ecological-disaster. 222 Chapter VI

Black Sea, this incident underscored the close ecological relationship between the Danube River basin and the Black Sea. The importance of addressing the environmental problems of the Danube River and the Black Sea was highlighted by the European Commission in its Communica- tion adopted in 2001.1270 Underlining the central role of regional co-operation, the Communication stated that the “environmental degradation of the Danube and Black Sea region requires urgent attention and can only be tackled through a joint effort of environmental rehabilitation, conducted at regional level. This much required effort will become a prime tool to promote and then secure the sustainable development of the region.”1271 The Communication also foresaw the inter-regional co-operation between the Danube River basin and the Black Sea as “. . . one of the tools to ensure a peaceful co-existence in a reunified Europe on the long term.”

5.3 Legal Framework of Co-operation The Danube River Basin and Black Sea Region co-operation had no pre-existing international legal instrument upon which to lay the legal foundation of a co-operative partnership. As noted by Vinogradov, the international legal framework for rivers and seas had developed separate from one another with no legal overlap.1272 Yet, ecologically these two bodies of water are interlinked especially within the context of land-based pollution. Consequently, the case of the Danube River Basin and Black Sea regional co-operation is an important experiment not only for inter-regional co-operation against pollution but also for inter-regime co-operation.1273 An important step towards integrating the Black Sea dimension into the Danube Basin began with the foundational legal instrument for the protection and preservation of the Danube River against pollution. In 1994 eleven Danube riparian States and the European Union signed the Convention on Co-operation and Protection and Sustainable Use of the Danube River that went into effect in 22 October 1998.1274

1270 Environmental Cooperation in the Danube-Black Sea COM (2001) 615 Final. 1271 Id. 1272 Vinogradov, Marine Pollution via Transboundary Watercourses – An Interface of the ‘Shore- line’ and ‘River-Basin’ Regimes in the Wider Black Sea Region, supra note 1173, at 589 (2007). 1273 The Rhine Action Programme (RAP) adopted in 1987 was the first programme to create an inter-regime linkage between an international watercourse and protection of the marine environment, which was between the North Sea and the Rhine River littoral States. However, unlike the case in the Black Sea and the Danube River, there was no institutional cooperative mechanism or programmes. Nonetheless, RAP was an innovative initiative for protection of regional seas from river-based transboundary sources of land-based pollution. “Rhine Action Programme, Adopted by the Eighth Ministerial Conference of the Rhine States”, Strasbourg, 30 Sept. 1987. See André Nollkaemper, The Rhine Action Programme: A Turning Point in the Protection of the North Sea?, 5 Int’l J. Estuarine & Coastal L. 123 (1990). 1274 See http://www.rec.org/DanubePCU/drpc.html. Ratified by Austria, Bulgaria, Croatia, Czech Republic, Germany, Hungary, Moldova, Romania, Slovak Republic, Slovenia and the Euro- pean Community. Ukraine has signed but not yet ratified. Bosnia and Herzegovina and the Federal Republic of Yugoslavia are observers. See also, P.R. Williams, Can Legal Principles Play a Positive Role Land-based Sources of Pollution: The Black Sea and Beyond 223

Under the DRPC an International Commission is responsible for implementing the Convention for the Protection of the Danube River (ICPDR). The Black Sea Commis- sion was given observer status. The inter-relation between the Danube River Basin and the Black Sea is mentioned several times in the Preamble of the Convention, including express acknowledgement of the adverse transboundary impact of the Danube River on the Black Sea.1275 According to article 2 of the DPRC the Contracting Parties are under a duty to endeavour to contribute to reducing the pollution loads of the Black Sea from sources in the catchment area). The use of “endeavour” softens the duty of the State Parties to reduce pollution. Nevertheless, despite the “soft” law language employed the results of the cooperation of the Parties show that “hard” law language is not necessary for States to take action. Nonetheless, from a strictly legal standpoint this soft language raises some questions. For example, is this an enforceable duty? And what would be the applicable law or standards in the case of a transboundary dispute arising from environmental damage of the Black Sea from a pollution incident origi- nating in one or more of the Danube River riveraine States? Would the applicable law be the existing customary international law duty of sic utere iure tuo ut alterum no laedus or the non-binding language of article 2 of the DPRC? On the issue of liability, the Eastern and Central European Countries in 2003 adopted the Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters1276 that will provide a civil liability regime for member states of the United Nations Eco- nomic Commission for Europe (UNECE) when it comes into effect.1277 Its objective is to create a regime for adequate and prompt compensation for damage caused by the transboundary effects of industrial accidents on transboundary waters.1278 All of the Black Sea Coastal States are members of the UN ECE1279 and so the adoption of

in Resolving Central and East European Transboundary Environmental Disputes, 7 GEORGETOWN INT’L ENVT’L L. REV 421 (1995). 1275 Emphasizing the urgent need for strengthened domestic and international measures to prevent, control And reduce significant adverse transboundary impact from the release of hazardous substances and of nutrients into the aquatic environment within the Danube Basin with due attention also given to the Black Sea. 1276 The Protocol was adopted in relation to the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 17 March 1992, 1936 U.N.T.S. 269; The Pro- tocol was signed and opened for signature on 21 May 2003. 1277 According to Article 29 the Protocol to the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, it will go into effect on the ninetieth day following the deposit of the sixteenth instrument of ratification. As of 2012 only Hungary has ratified the Protocol on 25 June 2004. (Copy on file with author.) 1278 Article 1. The Protocol establishes a regime of strict liability for operators, subject to certain exceptions and liability limitations; and fault-based liability for all other persons whose actions have caused damage in accordance with the scope of application of the Protocol. 1279 Bulgaria since 14 December 1955; Georgia since 30 July 1993; Romania since 14 December; Russian Federation since 28 March 1947; Turkey since 28 March 1947; and Ukraine since 28 March 1947. See http://www.unece.org/oes/member_countries/member_countries.htm. 224 Chapter VI the Protocol would be an important advancement in implementing legal and financial responsibility for upstream industrial accidents. Of the Black Sea States Bulgaria, Georgia, Romania and Ukraine have signed the Protocol however none have ratified it to date.1280 In regard to questions of transboundary pollution another important instrument adopted under the UN ECE is the Espoo Convention1281 and the SEA Protocol.1282 The Espoo Convention requires the Parties to conduct an environmental impact assessment for activities listed in its Appendix I, which are deemed to pose a significant risk of transboundary impact.1283 The Convention provides details for notification and consultation1284 requirements of potentially impacted Parties as well as details as to the content of an EIA for Appendix I activities.1285 In 1998 the BSC and the ICPDR created a joint Working Group to analyze the causes and effects of eutrophication in the Black Sea. The conclusions of the Work- ing Group were incorporated into the Memorandum of Understanding on Common Strategic Goals between the International Commission for Protection of the Dan- ube River (ICPDR) and the Black Sea Commission (BSC), signed in Brussels on 26 November 2001. The MOU included not only the Black Sea, but also what it termed to be the “overall Black Sea,” also incorporating the Azov Sea. The “wider Black Sea Basin” refers to “the basin determined by the hydrographic boundary of all inland waters discharging to the overall Black Sea.” Both Commissions agreed to common goals that included the long-term goal of reducing loads of nutrients and hazardous substances to conditions similar to those in 1960. In addition, a joint task force called the DABLAS Task Force was also created. The DABLAS Task Force provided an official platform for Black Sea and Danube Basin. Its objectives also include “effective implementation” of the MOU.1286

5.4 Black Sea Ecosystem Recovery Project (BSERP) The BSERP was one part of the strategic partnership project between the Black Sea and the Danube River Basin that was supported by the World Bank-GEF Interna- tional Waters Programme and implemented by UNDP and UNEP.1287 The project

1280 See http://www.unece.org/env/civil-liability/status_cl.html. 1281 25 Feb. 1991, 1989 U.N.T.S. 309 (1991), as amended in 27 Feb. 2001 by COP Decision II/14; and second amendment adopted by COP Decision III/7. 1282 21 May 2003, Doc. ECE/MP.EIA/2003/2. 1283 Article 2. 1284 Article 3. 1285 Article 4. 1286 For a detailed review of DABLAS activities see, ICPDR Document IC/091, International Commission for the Protection of the Danube River, Summary Report, Evaluation of Policies, Regulation, and Investment Projects Implemented in the Danube River Basin Countries in Line with Eu Directives and Regulations Vols. I & II (2004). 1287 GEF/C.15/Inf. 6, World Bank Strategic Partnership for Nutrient Reduction in the Danube River Basin and Black Sea, 11 Apr. 2000. The GEF in 1998 also financed a second similar Land-based Sources of Pollution: The Black Sea and Beyond 225 had allotted a total sum of approximately US$95 million1288 making it one of the largest and most ambitious GEF International Waters programmes.1289 The BSERP marked an important step in the development of an integrated wider Black Sea Basin approach to rehabilitate the Black Sea in the face of transboundary pollution, especially from nutrient loads, from the Danube River basin. Building upon the separate GEF projects for the rehabilitation of the Danube River1290 and the Black Sea1291 the BSERP project integrated the two through applying a holistic approach to the transboundary problems of the Black Sea. In broad terms, it aimed at developing legal, policy and technical measures to reduce nutrient input into the Danube River and the Black Sea. The range of BSERP activities was expansive and included reforming agricultural policies, improving industrial and municipal wastewater treatment, rehabilitating basin ecosystems such as wetlands to act as nutrient sinks, strengthening the legislative framework in both regions, improving the capacity of the Black Sea and Danube Secretariats, strengthening stakeholder involvement and public participation through enhanced capacity of NGO involvement, and supporting four scientific cruises.1292 During the fifteen years the BSERP was operational it provided much of the funding for the Black Sea Commission to implement the various projects and activities. Important outcomes of Phase II of BSERP included the 2007 Black Sea-TDA, the 2009 Black Sea SAP,1293 the adoption of the 2009 revised Black Sea Land Based

project for the Dneipro River, a three-littoral State river basin (Ukraine, Belarus and the Russian Federation), also responsible for nutrient load input in the Black Sea. See UNDP Doc. RER/98/ G31/A/1G/3, Final Evaluation of the GEF Project, Preparation of a Strategic Action Programme (SAP) for the Dnieper River Basin and Development of SAP Implementation Mechanisms (2005). 1288 See Black Sea Ecosystem Recovery Project, Exit Strategy (29 Oct. 2007). 1289 Andrea K. Gerlak, The Global Environment Facility and Transboundary Water Resource Management: New Institutional Arrangements in the Danube River and Black Sea Region, 13 j.Env’t Dev. 400 (2004). Describing some of the problems in obtaining GEF funding during the initial period of the Black Sea Environment Programme, See Martin Sampson, Black Sea Environmental Cooperation: Toward a Fourth Track, in Protecting Regional Seas: Developing Capacity and Fostering Environmental Cooperation in Europe 54–80, (Stacy D. VanDeveer & Geoffrey D. Dabelko, eds., 1999) (Conference Proceedings: “Saving the Seas: Developing Capacity and Fostering Environmental Cooperation in Europe” 14 May 1999, The Woodrow Wilson International Center for Scholars Environmental Change and Security Project East European Studies Program West European Studies Program) available at http://www.wilsoncenter.org/sites/default/files/regional_ seas.pdf. 1290 The GEF/UNDP project was implemented in two parts. Phase I (2001–2003), UNDP Doc. RER/01/G32/A/1G/31, Strengthening the Implementation Capacities for Nutrient Reduc- tion and Transboundary Cooperation in the Danube River Basin, and Phase II (2003–2006), See UNDP Doc. RER/01/G32/A/1G/31, Strengthening the Implementation Capacities for Nutrient Reduction and Transboundary Cooperation in the Danube River Basin. 1291 Supra note 509. 1292 Supra note 1289. 1293 Supra note 42. 226 Chapter VI

Pollution Protocol1294 and the draft fisheries LBD.1295 Another important component of the project was to promote the implementation of the EU Water Framework Directive basin-wide by EU and non-EU member States.1296 However, in 2008 when the BSERP was terminated Phase III of BSERP had not been implemented. Yet one of the objectives of the BSERP was the creation of self-sustaining institutional and legal structures in both the Black Sea and Danube Basin. However, the 2007 BSERP Exit Strategy acknowledged that the Black Sea Commission was not yet self-sufficient and did not have an adequate operating budget to meet the costs of implementing projects and its commitments.1297 The fifteen-year inter-regional co-operation between the Danube and the Black Sea under the BSERP project was concluded with glowing reports of its success. With effusive words the World Bank described the success of the Danube – Black Sea nutrient reduction programme stating that “[n]owhere on Earth have such demonstrable water quality and ecosystem improvements been observed in a large river and adjacent sea as in the Danube River/Black Sea system over the last decade. As a result of Basin countries efforts, including GEF–funded investments, nitrogen emissions have decreased about twenty percent and phosphorus almost fifty percent in the Danube Basin/Black Sea in the last fifteen years.”1298 In reality, the notable improvement in the water quality was in great part a result of the successful implementation of the Danube River basin component of the BSERP. The Black Sea component presented more mixed results especially in regard to its institutional and legal structures. The BSERP project ended in 2008 even though it recognized that Black Sea Commission was not self-sufficient in staff and did not have the funds to fill the technical and financial void created after the loss of BSERP support.1299 The institutional and legal gaps in the Black Sea regional regime as identified under the BSERP funded studies were also left unaddressed in 2008 when the project ended. On the other hand the objectives of the BSERP Exit Strategy included the “orderly transfer of responsibilities from the BSERP to the BSC”1300 raising some question as to how these responsibilities could be properly transferred to an understaffed and under financed system?1301 While the BSERP Final Report for Phase II enumerated a host of positive outcomes these were related mostly to technical outcomes such as completion of reports, meetings, scientific studies and

1294 Supra note 1225. 1295 Supra note 1032. 1296 Supra note 48. 1297 Supra note 1289, at 4. 1298 Available at http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/ECAEXT/EXTE CAREGTOPENVIRONMENT/EXTBLACKSEA/0,,menuPK:634978~pagePK:64168427~piPK:64168435 ~theSitePK:634972,00.html. 1299 Exit Strategy, Supra note 1289, at 4. 1300 Id., at 5. 1301 UNDP/GEF Final Report, Black Sea Institutional Review 8–11 (2006). Land-based Sources of Pollution: The Black Sea and Beyond 227 assessments.1302 Very few of the outcomes were related to the overall governance structure of the Black Sea regime, especially in ensuring long-term and sustainable implementation of commitments.

6. Discussion

Land-based sources of pollution are the principal source of pollution and cause of environmental degradation in the Black Sea. However, addressing the significant volume of transboundary pollution was one of the main challenges for the Black Sea regional regime. The Danube River is the single major source of transboundary pollution for the Black Sea. Known as the most international river with eleven littoral States, the difficulties in establishing an effective and sustainable framework of co-operation between the Danube River Basin and the Black Sea in the beginning appeared formidable. It is precisely for this reason that the BSERP project provided an important model for both regional and inter-regional co-operation in addressing transboundary sources of land-based source of pollution. Additionally, BSERP demonstrated how complex partnerships with international and regional bodies such as the GEF, UNDP, EU and the Black Sea and Danube Commissions could be successful in attaining concrete results in improved water quality. Nonetheless, there are also lessons to be learned from the BSERP experience. In the case of the Black Sea despite an identified need for a stronger legal and institutional framework, in practice this was not achieved. Much of the BSERP funding went to scientific projects, meetings and reports. Furthermore, after fifteen years and millions of dollars spent, the BSERP ended in 2008 without having ensured that legal instruments such as the 2009 revised Black Sea-LBS Protocol were actually implemented.1303 Whereas, in addition to the preparation and adoption of legal instruments the project should have made their ratification by all six Black Sea States an integral condition of funding, or BSERP should have been continued with Phase III with the specific objective of strengthening implementation of adopted instruments, especially in the case of the revised LBS Protocol which was adopted but has not been ratified and implemented. The 2009 revised Black Sea-LBS Proto- col when gauged against the global framework represents an example of best legal practices and should have been implemented shortly after its adoption by the six Black Sea States. The global framework for protection of the marine environment against land-based sources of pollution consists of the general provisions in the 1982 LOSC, customary international law and soft law instruments, notably Chapter 17 of Agenda 21 and the 1995 GPA.1304 The 1995 GPA, while not a binding instrument, nevertheless provides

1302 Black Sea Recovery Project, Final Technical Report, supra note 551, at 3–5. 1303 See BSERP Exit Strategy, supra note 1289. 1304 Supra note 72. 228 Chapter VI global understanding as to best practices for addressing land-based sources of pollution based on Chapter 17 of Agenda 21 and the 1982 LOSC.1305 It identified key principles that should be implemented such as the ICM,1306 the ecosystem approach1307 and integrated coastal and river basin management approach.1308 Moreover, it stressed the importance of forging co-operation between river basins and marine areas.1309 It also highlighted the need to develop innovative sources of funding to implement the necessary strategies and actions.1310 The Black Sea-Danube partnership embodied the 1995 GPA approach in virtually all aspects, except that it did not establish a liability and compensation scheme. Further examples of best legal practices in addressing land-based sources of pollution were provided by the second generation of regional sea protocols developed following the 1992 UNCED and the 1995 GPA. Among the new approaches adopted in these second generation protocols included extending the geographic scope of application to include coastal waters, requiring the use of environmental impact assessments, use of BEP, BAT, MAT, MAMAs, precautionary approach and the polluter pays principle. Furthermore, they included the establishment of compliance mechanisms to ensure implementation of the protocols. And in the example provided by the OSPAR system, the Commission was given the legal competence to take enforcement actions necessary to bring about compliance of obligations for the prevention of land-based pollution.1311 In comparing the different regional seas programmes with that of the Black Sea, the 2009 revised Black Sea-LBS Protocol for the Black Sea1312 stands out as perhaps the most comprehensive and advanced legal instrument on land-based sources of pollution. The 2009 revised LBS Protocol represents best practices for regulating cooperation in the regulation of Black Sea-land-based sources of pollution. It is a second generation instrument that incorporates the key principles and development in international environmental law and the 1982 LOSC, and will place the Black Sea regional programme well in advance of many of the other regional seas programmes when it enters into effect. Its provisions include the precautionary approach, the ecosystem approach, ICM, BEP and BAT, public participation, environmental impact assessment and strategic impact assessment. It also provides for ensuring national legislation on liability and access to prompt and adequate compensation against environmental damage. The provision on liability and compensation further fulfills

1305 Supra note 19. 1306 Supra note 1157. 1307 Supra note 1158. 1308 Supra note 1159. 1309 Supra note 1163. 1310 Id. 1311 Supra note 649. 1312 Supra note 72. Land-based Sources of Pollution: The Black Sea and Beyond 229 the mandate of article 235 of the 1982 LOSC requiring that States provide for national legislation on liability and access to prompt and adequate compensation.1313 The compliance mechanism under the 2009 revised Black Sea-LBS Protocol ensures a pro-active system to both monitor and facilitate implementation of the Protocol. The revised Protocol has also incorporated key aspects of the relevant EU directives, in particular the WFD1314 and the MSFD,1315 thereby facilitating harmonization between non-EU and EU legal systems in the Black Sea. Overall, the Black Sea is well poised to implement a regional framework for addressing land-based sources of pollution based on best legal practices. Without doubt the 2009 revised Black Sea-LSB Protocol is a much more comprehensive instrument and is better aligned with current norms of international environmental law than the original protocol and representing an important step forward for the Black Sea. The 2009 revised Black Sea-LBS Protocol was one of the important objectives and outcomes of the BSERP.1316 The BSERP Final Report lists the 2009 revised Black Sea-LBS Protocol as one of the project’s “key achievements.”1317 Without doubt the drafting and adoption of the 2009 revised Black Sea-LBS Protocol was a key outcome of Phase II of the BSERP. This was a result of workshops, negotiations and securing the agreement of the six Black Sea States. All of which was supported by the BSERP through technical financial support. On the one hand this is a successful result but on the other hand the degree of success would have had more impact had the ratification of the protocol been made part of the output of the project before termination. Given the small number of Black Sea States additional incentives through financial support could have been used to bring about ratification. For example, the availability of funds to support additional inter-State meetings could have expedited ratification. Given the slow rate of ratification and ratification of regional commitments it is important to reexamine how linkages can be made between international financial assistance provided and bringing about actual implementation of commitments. In 2012 only Georgia has ratified the Protocol.1318 This then raises the question of what is the obligation of the remaining five Black Sea States to ratify the 2009 revised Black Sea-LBS Protocol. In principle, the decision of all six Black Sea States to revise and adopt a new LBS Protocol reflects their agreement that a new protocol is necessary. This would mean that as “a necessary measure” according to Article V of the Bucharest Convention the Parties are under an obligation to ratify the Protocol. Specifically, Article V states that Parties are to “take. . . . all necessary measures consistent with international law and in

1313 Supra note 765. 1314 Supra note 47. 1315 Supra note 48. 1316 Supra note 1288. 1317 Supra note 1289. 1318 Supra note 1235. 230 Chapter VI accordance with the provisions of this Convention to prevent, reduce and control pollution . . . in order to protect and preserve the marine environment of the Black Sea.”1319 At the global level the avenues for legal action to compel the Black Sea States to speedily ratify the 2009 revised Black Sea-LBS Protocol appear weak. The 1982 LOSC provision on land-based sources of pollution, article 207, is principally directed to national measures, creating only aspirational objectives for regional action.1320 The 1995 GPA is a non-binding instrument lacking enforceability.1321 This leaves the regional level as the only legal option available. The dispute settlement provision of the Bucharest Convention may provide legal standing to the Black Sea States to bring a legal challenge,1322 but in practical terms, a legalistic approach may not necessarily produce the immediate action for the Black Sea States to ratify the Protocol. It is doubtful that Georgia, the only State to have ratified the protocol, would take legal action under the provision of the Convention on legal disputes on the implementation of the Convention. Even so, the resolution obtained will not be binding unless the Parties agreed to this in advance. Instead a more practical approach would have been for the GEF/UNDP BSERP project to have had included a linkage that made ratification of the 2009 revised Black Sea-LBS Protocol one of the outcomes of the BSERP project. Another possible avenue to promote prompt ratification of the protocol would be for the EU to pressure its two member States, Bulgaria and Romania to ratify the protocol. But this would not bring about full ratification by all six States. The lack of ratification of the 2009 revised Black Sea-LBS Protocol also highlights the need and role for a general compliance mechanism that would promote speedy ratification of instruments that have been negotiated and adopted by all six of the Black Sea States. Unlike global instruments that involve more than some 195 States world-wide, the Black Sea Regional Seas Programme is made up of only six States, which means that if an instrument has been adopted there should be no political or legal obstacles to its quick ratification. Furthermore, allowing for public participation in the compliance mechanism, such as done with the Aarhus Convention,1323 would enhance the effectiveness of such a mechanism, particularly by bringing to public attention the inaction of Black Sea governments in undertaking what may be no more than making them take administrative action.

1319 Supra note 32. 1320 Article 207 includes a regional dimension where under sub-paragraph 3, States must “endeavour” to harmonize their polices at the regional level. In sub-paragraph 4 States are to “endeavour” to establish global and regional rules, standards and recommended practices and procedures to meet the obligations, taking into account inter alia characteristic regional features, and also acting through the competent international organizations or diplomatic conferences. 1321 Supra note 1153. 1322 Article XXV provides that “In case of dispute between Contracting Parties concerning the interpretation and implementation of this Convention, they shall seek a settlement of the dispute through negotiations or any other peaceful means of their own choice.” 1323 Supra note 665. Land-based Sources of Pollution: The Black Sea and Beyond 231

Once the 2009 revised Black Sea-LBS Protocol, however, does enter into effect the Black Sea States need to adopt additional implementing instruments such as a set of regional standards for conducting environmental impact assessments, guidelines for implementing the ecosystem approach, monitoring activities, reporting, and develop a comprehensive set of environmental targets and indictors consistent with the MSFD to assess progress in the quality of water. In addition, it would be advisable for the Black Sea States to develop a set of harmonized regional standards and an institutional mechanism to successfully implement the liability regime established under the Protocol. For example, questions such as whether liability for pollution should be handled by national judicial systems or whether an alternative regional system could be developed might be examined? A regional mechanism provides the advantage of greater harmonization of legal standards and sanctions among the different States. On the other hand, States are more likely to agree on a liability regime that is implemented by their national judicial systems. Once again, a Black Sea legal expert advisory group on land-based sources of pollution could provide the initial study on these issues. Such a study could include a survey of existing national legislation and international examples on liability for land-based pollution. The question of compensation could also be examined in light of other compensation regimes, such as the international regime for vessel source oil pollution. In addition, a mechanism could be created to promote and facilitate coordination of implementation of the EU Directives, in particular the WFD and UWW, within the Black Sea region. Such mechanisms could provide regional compatibility between the EU standards and the non-EU Black Sea States without necessarily imposing EU acquis communautaire on non-Member States. Linkages with the EU could be established in a number ways from the simplest level of informal exchange of best practices to formal agreements. The mechanism could also be used to leverage EU funding to support implementation actions, such as constructing the needed wastewater treatment plants along the Black Sea coast. Lastly, without question the close inter-institutional co-operation developed between the Black Sea Commission and the Danube River Basin Commission has been one of the success stories for international co-operation. The support of the GEF and EU was a key factor in its success. However, the importance of the EU was not simply a result of financial support but also because of the integrated and basin- wide approach introduced by the WFD. The Black Sea, at least in part, is one of the EU regional seas that falls within the scope of application of the MSFD. In short, the EU is a permanent factor in the Black Sea for addressing land-based sources of pollution, once again highlighting the need to fully integrate the EU into the Bucharest Convention system. In summary, the Black Sea has provided an excellent example of integrated basin- wide cooperation with the support of international financing agencies. However, it is clear that the EU is and will continue to play a very important role in regard to land- based sources of pollution for the simple reason that key EU directives, in particular 232 Chapter VI the WFD and MSFD, are applied in the Danube River basin and in the Black Sea. Furthermore, while not yet in effect, the 2009 revised Black Sea-LBS Protocol provides an instrument of best legal practices for regional cooperation in preventing land-based sources of pollution. While the Bucharest Convention provides some legal option to challenge the Black Sea States for their failure to speedily ratify the 2009 revised Black Sea-LBS Protocol after its adoption by all six States, the active involvement of the public and political pressure for the EU appear to be more practical solutions. Chapter VII

Vessel Source Pollution and Offshore Activities in the Black Sea

1. Introduction

One of the most important developments to take place in the Black Sea during the 1990s, following the dissolution of the former USSR, was the opening up of vast oil and gas reserves in the Caspian region to western oil companies transforming the Black Sea and the Turkish Straits into a key global oil transport route.1324 Between 1992 and 2010 the amount of oil and oil products transported from the Caspian region through the Black Sea and Turkish Straits to western markets nearly tripled from 60 million tonnes annually (mta) in 1996 to nearly 147 mta in 2010.1325 The number of tankers transporting oil and products also increased significantly, from 4500 annually transiting the Turkish Straits in 1996 to some 10,000 by 2008 decreasing slightly to 9,274 in 2010.1326 Moreover, there has been a proliferation of oil and gas pipelines and oil terminals to transport the oil and natural gas from the neighboring regions.1327 In addition to serving as a transport route for oil, the Black Sea itself holds prom- ising reserves of oil and natural gas as reflected by increased offshore exploration and exploitation activities.1328 The Ukrainian shelf and the Russian shelf have strong potential for oil and recent explorations have also shown significant potential for

1324 Ian Bremmer, Oil Politcs, America and the Riches of the Caspian Basin, 15 World Pol’y J. 27 (1998); Ahmet Öztürk, From oil pipelines to oil Straits: the Caspian pipeline politics and environmental protection of the Istanbul and the Canakkale Straits, 4 j. southern eur. & Balkans 57 (2002). 1325 Data provided by courtesy of the Turkish Ministry Transport Directorate of Coastal Safety. 1326 Id. According to the Turkish authorities the decrease in the number of tankers passing through the Straits as recorded in 2009 is attributed to the operationalization of the Baku-Tblisi- Ceyhan pipeline. (Interview conducted with Captain Cahit Istikbal of the Turkish Directorate General for Coastal Safety on 2 November 2010). 1327 For a detailed analysis see Oral, Integrated Coastal Zone Management and Marine Spatial Planning for Hydrocarbon Activities in the Black Sea, supra note 78, at 453–476; Nilufer Oral, Oil transportation security in the Black Sea and the Turkish Straits, supra note 76. 1328 Id. Romania’s offshore reserves are estimated to be 956 million barrels of oil [=127,466,666.66667 mt] Bulgaria has 15 million barrels [=2,000,000 mt] of proven offshore oil reserves, and a significant potential for offshore oil exists in the Ukrainian and the Russian shelves. Oral, Integrated Coastal Zone Management and Marine Spatial Planning for Hydrocarbon Activities in the Black Sea, supra note 78, at 459.

Nilufer Oral, Regional Co-operation and Protection of the Marine Environment Under International Law, pp. 233–266. ©2013 Koninklijke Brill NV, The Netherlands. ISBN 978-90-04-25085-7. 234 Chapter VII oil reserves off the Turkish Black Sea coast.1329 In 2009 one of the world’s largest semisubmersibles, the Ocean Rig Leiv Eiriksson, passed through the Turkish Straits to the Black Sea off the Turkish coast to engage in oil and gas exploration.1330 Major oil companies have obtained licenses from the Turkish government for offshore exploration. This increased activity in offshore oil and gas activities raises questions of pollution risk for the Black Sea that was highlighted in the 2010 following the Deepwater Horizon disaster in the Gulf of Mexico.1331 For this reason, offshore oil and gas exploration activities need to be under greater scrutiny for safety and environmental reasons. The increased volume of shipping, especially for dangerous and hazardous products, creates enhanced risks for operational and accidental vessel source pollution in the Black Sea.1332 The possibility of a serious accidental spill in the Black Sea was highlighted in November of 2007 when thirteen vessels caught in a storm off the coast of the Taman Peninsula in the Kerch Strait and off the coast of Ukraine were stranded and sank. Among the vessels was a tanker carrying 4000 mt of fuel oil that broke into two parts; two vessels carrying 2,500 mt bulk sulphur sank and two other vessels collided. While the incident is considered to be one of the worst environmental disasters for the Black Sea proper,1333 there have been numerous serious shipping accidents in the navigationally risky Turkish Straits.1334 The most devastating of these accidents occurred when the MT Independenta, fully laden with crude oil, collided with the MV Nassia Shipbroker, resulting in the loss of approximately 95,000 tonnes of oil, the worst spill to date for the Turkish Straits and ranked among

1329 Anonymous “Tertiary gas exploration well to be first in Turkish Black Sea waters in 5 years” 102 Oil & Gas Journal 34 (21 June 2004). 1330 The “Leiv Eiriksson” measures 119,38 meters (391.68 ft) in overall length and 85,80 meters (278.88ft) in overall width. See Leiv Eirikisson – The Effective Answer for Ultra-Deep Waters and Harsh Environments, available at http://www.ocean-rig.com/Fleet/Leiv-Eiriksson-/ 6BE7D1C7-2DBE-4A58-9397-94916B0C9729/1. 1331 On 20 April 2010 an explosion from methane gas occurred on the Deepwater Horizon semi- submersible offshore mobile drilling unit operating in the Gulf Mexico. The explosion caused the death of eleven workers and an oil spill of approximately 4.9 million barrels (780,000 m3), making it the largest oil spill in the Gulf of Mexico and in US-controlled waters. See National Commis- sion on the BP Deepwater Horizon Oil Spill and Offshore Drilling, Deep Water Gulf Oil Disaster and the Future of Offshore Drilling Report to the President Final Report (2011), available at http://www.oilspillcommission.gov/sites/default/files/documents/DEEPWATER_ ReporttothePresident_FINAL.pdf. 1332 G. Ferraro, S. Meyer-Roux, O. Muellenhoff, M. Pavliha, J. Svetak, D. Tarchi & K. Opouzelis, Long term monitoring of oil spills in European seas, 30 Int’l J. Remote Sensing 627–645 (2009). 1333 For details on the marine accidents, see “Marine Accidents in the Kerch Straits, Sunday 11 November 2007 (Commission on the Protection of the Black Sea Against Pollution), available at http://www.blacksea-commission.org/main.htm. 1334 Cahit Istikbal, Regional Transport Demands and the Safety of Navigation in the Turkish Straits: A Balance at Risk, in Problems of Regional Seas 2001: Proceedings of the Interna- tional Symposium on the Problems of Regional Seas, 76–85 (Bayram Öztürk & Nesrin Algan, eds., 2001). Vessel Source Pollution and Offshore Activities in the Black Sea 235 the most serious globally by the International Tanker Owners Pollution Federation (“ITOPF”).1335 The 1996 Black Sea-TDA identified vessel source pollution as one of the main threats to the Black Sea marine environment. The eight principal problem areas identified were: (1) ballast water, (2) illegal discharge of harmful substances, especially oil, (3) the lack of harbour reception facilities, (4) lack of port state control, (5) lack of contingency plans at local and national levels and (6) the lack of a regional Black Sea contingency plan, (7) lack of regional and coordinated national classification and risk assessment systems and (8) the lack of national capabilities for emergency response and regional coordination. Furthermore, the Bucharest Convention imposed a clear obligation for the six Black Sea Party States either individually or jointly to take all appropriate measures to prevent, reduce and control vessel-source pollution of the marine environment of the Black Sea in accordance with generally accepted international rules and standards.1336 The generally accepted international rules and standards are understood to be those adopted IMO, headquartered in London.1337 International shipping is without question one of the most internationally regulated sectors. It is the subject of a multitude of international conventions, instruments, standards and norms. This international character of shipping has created a strong framework of international co-operation channeled through the many conventions and centralized under the umbrella of the IMO, the principal body under the United Nations with competence to regulate international shipping.1338 The central role of the IMO in establishing the international standards for shipping relative to protection of the marine environment and safety of navigation was implicitly codified in the 1982 LOSC.1339 It is understood that reference in the 1982 LOSC to the singular “competent international organization” is a reference to the IMO.1340 Article 211 of the 1982 LOSC specifically mandates that States either

1335 Available at http://www.itopf.com/information-services/data-and-statistics/statistics/index .html#major. 1336 Article VIII. 1337 Agustin Blanco-Bazán, IMO Interface with the Law of the Sea Convention, in Current Maritime Issues and the International Maritime Organization 269 (Myron H. Nordquist & John Norton Moore eds., 1999). 1338 United Nations Convention on the Law Of The Sea 1982, A Commentary, Vol. IV, 176–207, (Shabtai Rosenne & Alexander Yankov, eds., 1991). 1339 For divergent views on the role of IMO in improving safety of navigation and protection of the environment, see Olav F. Knudsen & Bjorn Hassler, IMO legislation and its implementation: Accident risk, vessel deficiencies and national administrative practices, 35 Mar. Pol’y 201–207 (2011) who disagree with the view that IMO has been a key factor in the decline in ship accidents and resulting pollution of the marine environment put forth by S. Sabine Knapp & Philip Hans Franses, Does ratification matter and do major conventions improve safety and decrease pollution in shipping? 29 Mar. Pol’y 826–46 (2009). 1340 Agustin Blanco-Bazán, IMO Interface with the Law of the Sea Convention, in Current Maritime Issues and the International Maritime Organization 269 (Myron H. Nordquist & John Norton Moore eds., 1999); Craig H. Allen, Revisiting the Thames Formula: The Evolving Role of the International Maritime Organization and Its Member States in Implementing the 1982 Law of the Sea Convention, 10 SAN DIEGO INT’L L.J. 265, 282 (2009). 236 Chapter VII through the IMO or diplomatic conferences “shall establish international rules and standards to prevent, reduce and control vessel source pollution of the marine environment.” Consequently, the primary source of the international law for shipping in general, including energy transport, begins at the IMO. The regional dimension of regulating shipping standards and in particular standards related to vessel source pollution in practice has typically focused on implementing international standards, such as regional regulation of dumping activities, emergency response measures to accidental pollution, and port state control measures under the relevant regional port state control memorandums of understandings.1341 Since 1975 the IMO and UNEP have co-operated in developing regional co-operation mechanisms, especially for contingency planning and emergency response measures against accidental pollution.1342 However, increasingly the regional role for the protection of the marine environment from vessel source pollution has expanded to include innovative measures such as the creation of particularly sensitive sea areas (PSSA), use of advanced technologies, and marine spatial planning in large marine ecosystems. The significant increase in the volume of dangerous cargo in the Black Sea has highlighted the need for a strong regional framework for implementation and enforcement of international standards and regulations for international shipping. Both operational and accidental sources of pollution from shipping create risks to the Black Sea marine environment. The question is whether the Black Sea regional framework ensures that Black Sea shipping meets the generally accepted international rules and standards as reflected by implementation of the IMO Conventions. The first level of inquiry is whether the existing legal instruments for the Black Sea under the Bucharest system provide an adequate legal foundation for addressing both pollution risks from shipping and offshore activities. A number of measures have been developed and employed internationally and should be part of the overall Black Sea shipping and offshore activities framework. These include an effective

1341 There is in effect a total of eight regional port state memorandum. These are the Paris Memorandum of Understanding on Port State Control, 1982 (Paris MOU); Acuerdo de Viňa del Mar Agreement on Port State Control, 1992 (Latin American Agreement); Memorandum of Under- standing on Port State Control in the Asia-Pacific Region, 1993 (Tokyo MOU); Memorandum of Understanding on Port State Control in the Caribbean Region (Caribbean MOU); Memorandum of Understanding on Port State Control in the Mediterranean Region, 1997 (Mediterranean MOU); Memorandum of Understanding on Port State Control for the Indian Ocean Region, 1998 (Indian Ocean MOU); Memorandum of Understanding on Port State Control for the West and Central African Region (Abuja MOU); and the Memorandum of Understanding on Port State Control for the Black Sea Region, 2000 (Black Sea MOU). For an in-depth analysis of port state control and the different regional and national port state control regimes see Oya Z. Özcayir, Port State Control (2001). 1342 International maritime organization & United Nations Environmental Programme, Report of the 2006 IMO/UNEP Forum on Regional Arrangements for Co-operation in Combating Marine Pollution incidents, Report available at nly.asp/data_id=16039/UNEPIMO Report-Final-JUL06.pdf; Oleg Khalimonov Framework for Co-operation and Recent IMO Activities in Preventing and Managing Marine Pollution, 3 Sing. J. Int’l & Comp. L. 370 (1999). Vessel Source Pollution and Offshore Activities in the Black Sea 237 regional system of port state control, use of electronic surveillance and monitoring technologies, consideration of establishing a PSSA in the Black Sea, adoption of marine spatial planning for large marine areas and enhanced regional standards and regulations for offshore exploration and exploitation of hydrocarbon sources.

2. The International Framework for Shipping

2.1 The 1982 United Nations Convention for the Law of the Sea The overarching legal framework for the regulation of shipping activities is provided by the 1982 LOSC. The co-operative dimension of the international legal framework for regulating vessel source pollution is set out in article 211(1), according to which States acting through the competent international organization, the IMO1343 have an obligation to establish international rules and standards to prevent, reduce and control vessel sources of pollution to the marine environment.1344 The principal duty to adopt laws and regulations against vessel source pollution under the article 211(2) falls upon the flag State, which is required to adopt laws and regulations for the prevention, reduction and control of pollution that at the minimum have the same effect as the generally accepted international rules and standards established by the IMO. Coastal State may adopt rules and regulations to prevent, reduce and control vessel source pollution on the condition that they do not interfere with the innocent passage rights of vessels navigating in their territorial seas. Likewise, a coastal State may adopt laws and regulation for its EEZ subject to the enforcement conditions provided in article 220, subparagraphs (4), (5) and (6).1345 Furthermore, flag States are obligated to ensure compliance and enforcement of the applicable international rules and standards established by the IMO.1346 Proof of compliance with IMO standards is provided by certificates that the flag State is required to ensure that ships carry on board.1347 The standards and rules established by IMO represent the minimum benchmarks for the necessary measures to be adopted in order to protect the marine environment. These obligations would clearly apply to Bulgaria, Georgia, Romania, Russia and Ukraine as Parties to the

1343 Supra note 84. 1344 See Bernard Oxman, The Duty to Respect Generally Accepted International Standards, 24 NY Univ. J. Int’l & Pol’y 109 (1991). 1345 In general see, Erik Jaap Molenaar, Coastal State Jurisdiction Over Vessel-Source Pollution (1998); “Ila Vessel-Source Jurisdiction Pollution and Coastal State: The Work of the Ila Committee on Coastal State Jurisdiction Relating to Marine Pollution” (1991–2000), (Erik Frankx & Erik Jaap Molenaar, eds., 2001); Lindy Sue Johnson, Coastal State Regulation of International Shipping (2004). 1346 Article 217(1). 1347 Article 217(3). 238 Chapter VII

1982 LOSC. These provisions would apply to Turkey, who is a non-Party to the Con- vention, if they constitute customary international law applicable against Turkey.1348 In addition to the traditional jurisdictional competences of coastal and flag States under international law, article 218 of the 1982 LOSC introduced a new port state jurisdiction for purposes of enforcement of the applicable international rules and standards adopted by the IMO for violations committed in areas outside its own jurisdictional waters.1349 Port state jurisdiction allows a State to take investigatory and enforcement action against a foreign flagged vessel for any discharge that is in violation of applicable international rules and standards adopted by the IMO that were committed outside its internal, territorial sea or EEZ.

2.2 The International Maritime Organization (IMO) The IMO is the principal institution for implementing co-operation for the regulation of international maritime activities, with the exception of fishing.1350 It has authored a majority of the major conventions, regulations and guidelines for safety of navigation and protection of the marine environment from vessel-source pollution.1351 The backbone of the legal regime for protection of the marine environment rests on two foundational conventions: the International Convention for the Safety of Life at Sea Convention (SOLAS)1352 and the International Convention for the Prevention of Pol- lution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78) and its six Annexes.1353 Furthermore, under MARPOL 73/78 “Special Areas”

1348 However, Turkey has consistently filed formal objections against the 1982 LOSC. Turkey’s objection is against the provisions extending the breadth of the territorial sea to 12 nm and the provisions on delimitation for the continental shelf and the EEZ. See Nilufer Oral, Non-Ratifica- tion of the 1982 LOS Convention: An Aegean Dilemma of Global and Environmental Consequence, 1 BERKELEY JRN’L INT’L L. PUBLICIST, 2009 (on-line publication) available at http://www.boalt .org/bjil/. 1349 David Anderson, Modern Law of the Sea: Selected Essays 206 (2008); Patricia Birnie & Alan Boyle, International Law and the Environment (1998). 1350 The Convention on the International Maritime Organization, 6 Mar. 1948, as amended 15 Sept. 1964, 3 Nov. 1968, 1 Apr. 1978, 22 May 1982, 17 Nov. 1977 and 15 Nov. 1979. Article 1 of the Convention in listing the purposes of the IMO to activities affecting shipping engaged in international trade. 1351 Louise de Lafayette, Marine Environment Protection Committee: The Conjunction of the Law of the Sea and International Environmental Law 16 Int’l J. Marine & Coastal L. 155 (2001) Z. Oya Özcayir, Illegal Oil Discharges from Ships and Implementation Failures in the International Conven- tion System, in Law, Technology and Science for Oceans in Globalisation, Iuu Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf, 245–268 (Davor Vidas, ed., 2010). 1352 International Convention for the Safety of Life at Sea, Nov. 1, 1974, 32 U.S.T. 47, 1184 U.N.T.S. 2 [hereinafter SOLAS]; Protocol of 1978 Relating to the International Convention for the Safety of Life at Sea, 1974, Feb. 17, 1978, 32 U.S.T. 5577, 1226 U.N.T.S. 237. 1353 International Convention for the Prevention of Pollution by Ships, 2 November 1973, reprinted in ILM 1319 (1973); Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973, 17 February 1978, 1340 U.N.T.S. 61 (1978); The six Annexes are: Annex I (oil), Annex II (noxious liquid substances), Annex III (harmful substances in packaged Vessel Source Pollution and Offshore Activities in the Black Sea 239 have been designated in seas, such as the Black Sea, where the discharge of oil, garbage disposal or sulphur oxide emission is prohibited.1354 The MARPOL 73/78 Convention also requires that adequate port reception facilities be made available to receive ship-generated waste.1355 Conventions specifically directed towards regulating oil pollution and other dangerous/hazardous/noxious substances, including liability and compensation, are the 1990 International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC),1356 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Haz- ardous and Noxious Substances by Sea,1357 and the 2000 Protocol on Preparedness, Response and Co-operation to Pollution Incidents by Hazardous and Noxious Sub- stances (OPRC-HNS),1358 1969/1992/2000 International Convention on Civil Liability for Oil Pollution Damage (CLC),1359 1971/1992 International Fund for Compensation for Oil Pollution Damage (FUND),1360 and the 2003 Protocol on the Establishment of a Supplementary Fund for Oil Pollution Damage; the 1996 International Conven- tion on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS).1361 The need for strong regional co-operation for preparedness and response is at the core of these instruments. The IMO helps enhance regional co-operation by giving direct support to regional centers such as the Regional Marine Pollution Emergency Response Centre for the Mediterranean Sea (REMPEC), the Regional Marine Pollu- tion Emergency, Information and Training Center for the Wider Caribbean Region (RAC/REMPEITC-Caribe), and also in co-operation with GEF and UNDP, through the Regional Programme on Partnerships in Environmental Management for the Seas of East Asia (PEMSEA).

form), Annex IV (ship sewage), Annex V (ship garbage) and Annex VI (ship source air emissions). See Maria Gavouneli, Functional Jurisdiction in the Law of the Sea, 71–74 (2007); Markus J. Kacel, Particularly Sensitive Sea Areas: The Imo’s Role in Protecting Vulnerable Marine Areas, 101–104 (2007). 1354 The Baltic Sea was the first Special Area designated under Annex VI is the Baltic Sea where a Sox emission control area has been established. Molenaar explains the difference between the other MARPOL Special Areas whose focus is on emission control and that of Sox special areas which controls the sulphur content of fuel and which is part of the “construction, design, equipment and management”, (CDEM) of vessel. See Molenaar, Coastal State Jurisdiction Over Vessel-Source Pollution, supra 1346, at 432–437. 1355 Regulation 13(c)(2) of MARPOL 73/78. For a review of IMO initiatives to address the problem of inadequate port reception facilities and compliance with the MARPOL 73/78 Convention, see Özcayir, supra note 86, at 255–256, 265. 1356 30 November 1990, reprinted in 30 ILM 733 (1991). 1357 3 May 1996, 25 ILM 1406 (1996) (HNS), as modified by the HNS Protocol, 30 April 2010. 1358 15 March 2000, in force 14 June 2007. 1359 29 Nov. 1969, 973 U.N.T.S. 3 (1957). 1360 11 ILM 284 (1972). 1361 3 May 1996, 35 ILM 1415 (1996). 240 Chapter VII

Other conventions important to the protection of the marine environment from vessel source pollution include the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter1362 (London Convention), as amended by the 1996 Protocol,1363 the 2004 International Convention for the Con- trol and Management of Ships’ Ballast Water and Sediments (BWM Convention)1364 and the 2001 Antifouling Convention (AFS Convention).1365 The growing evidence of the risk to the marine environment from invasive species transported in ship ballast has given this issue priority in the IMO, which, in partnership with GEF and UNDP, created the GloBallast Programme to support less industrialized countries.1366 In addition to providing support for developing national strategies for ballast water management, the GloBallast Programme recognized the need for co-ordinated approach at the regional level, especially in marine areas such as semi-enclosed and enclosed seas. The Programme has undertaken a number of projects aimed at capacity building and promoting the necessary national and regional legal framework for eventual implementation of the 2004 BWM Convention within different regional seas, including the Black Sea.1367 In 2010 the Black Sea Commission Per- manent Secretariat together with the IMO-Globallast Programme held a workshop on the 2004 BWM Convention as part of preparation for its ratification by the Black Sea States.1368 The introduction of harmful invasive species into the Black Sea, such as the disastrous Mnemiopsis leidyi, has been through ship ballast water exchange. Consequently, the 2004 BWM Convention is of particular importance, especially in preparing a regional approach to controlling the introduction of harmful invasive species through ship ballast water exchange. The IMO has also actively promoted the use of surveillance and information technology as part of its regulatory framework. Timely detection and reliable evidence

1362 13 Nov. 1972, 1046 U.N.T.S. 120. 1363 1996 Protocol to the 1972 London on the Prevention of Marine Pollution by the Dumping of Wastes and Other Matter, 7 Nov. 1996, reprinted in 36 ILM 1 (1997). See also, Philomene Verlaan, Geo-engineering, the Law of the Sea, and Climate Change, Carbon & Climate L. Rev. 446, 453 (2009). 1364 13 Feb. 2004. (Not yet entered into force). 1365 International Convention on the Control of Harmful Anti-fouling Systems on Ships (“Anti- Fouling Convention”), 5 Oct. 2001. 1366 See http://globallast.imo.org/. 1367 J. Tamelander, L. Riddering, F. Haag & J. Matheickal, Guidelines for Development of a National Balllast Water Strategy, GloBallast Monograph Series No. 18, (GEF-UNDP-IMO GloBallast Partnerships, 2010). For a discussion on the role of regional agreements and strategies see Id., at 12–14. 1368 The workshop was held in Odessa, Ukraine between 19–21 July 2010. (Author personally participated at the workshop). See Press release, IMO-BSC join hands to protect the Black Sea, (23 Jul. 2010), available at http://globallast.imo.org/Press_Release%20IMO_-_BSC.pdf. The workshop is part of implementation of the Memorandum of Understanding between the International Maritime Organization (IMO) and the Black Sea Commission (BSC) signed on 8 July 2010 to increase mutual support on environmental aspects of shipping including the oil pollution preparedness, ballast water management and dumping. Id. Vessel Source Pollution and Offshore Activities in the Black Sea 241 is an essential part of preventing illegal discharges in the marine environment. In an effort to improve monitoring and surveillance, albeit motivated by security concerns, the IMO amended Chapter V of the 1974 SOLAS making Long-range Iden- tification and Tracking Systems1369 and Automated Information Systems, also called “black boxes., mandatory for some ships”1370 Furthermore, the IMO amendment of Chapter V of SOLAS further promoted the use of Vessel Traffic Services (VTS) as a tool to enhance safety of navigation and protection of the environment.1371 Addition- ally, following the Prestige incident, where the Captain of the ill-fated tanker was refused admittance into Spanish ports, the controversial issue of “places of refuge”, where ships in distress seek safety in the port of a coastal State, came under international scrutiny prompting the IMO to adopt a set of guidelines.1372 The controversy centered on the right of a coastal jurisdiction to protect its coast and marine environment from the dangers of pollution and the need to provide safety to a ship in distress.1373 In short, given the role of the IMO as the principal organization responsible for establishing the applicable international rules and standards for shipping, a key indicator of whether a State is conforming to international vessel pollution standards is the level of ratification, implementation and enforcement of the IMO Conventions. In addition, port state control has emerged as a powerful enforcement tool for ensuring

1369 SOLAS, regulation V/19-1. The following ships on international voyages are required to be equipped with LRIT: passenger ships, including high-speed craft; cargo ships, including high-speed craft of 300 gross tonnage and upwards; and mobile offshore drilling units. Information required to be transmitted by LRIT include the ship’s identity, location, and date and time of the position. Furthermore, there is to be no interface between the LRIT and automatic identification systems (AIS), the latter being a broadcast system. Date transmitted through LRIT is available only to Con- tracting Governments SOLAS, who are entitled to receive information about ships navigating up to 1,000 nautical miles from their coast. see Oil Spill Intelligence Report, Long-Range Identifica- tion and Tracking of Ships – SOLAS Amendments Adopted at IMO’s MSC (2006); See also, Martin Tsamenyi & Mary Ann Palma, 13 J. INT’L MAR. L. 42 (2007). 1370 SOLAS, reg. V/19.2.4. supra note 1353. The following ships on international voyages are required to have AIS: all ships 300gt and upwards engaged in international voyage; container ships 500 gt and upwards not engaged in international voyage; and all passenger ships regardless of size. 1371 SOLAS, supra note 1353. See also, John F. Kemp & Aline F.M. De Bievre, A Regional Vessel Traffic Service for the North Sea, in The North Sea, 5 Int’l J. Mar. & Coastal L. 167–179 (1990); Glen Plant, The Relationship between International Navigational Rights and Environmental Protection: A Legal Analysis of Mandatory Ship Traffic System, in Competing Norms in the Law of Environ- mental Protection 11 (Henrik Ringbom ed., 1997); Glen Plan, International legal aspects of vessel traffic services, 14 MAR. POL’Y 71 (1990); Charles W. Koburger, Jr., Vessel Traffic Systems (1990); Martti Heikilȁ, Ship-Shore and Ship-Ship Data Transfer, 49 J. NAV. 309 (1996). 1372 IMO res. A.949(23) Guidelines on places of refuge for ships in need of assistance (2003). 1373 See Aldo Chircop, Ships in Distress, Environmental Threats to Coastal States, and Places of Refuge: New Directions for an Ancien Regime, 33 OCEAN DEV. & INT’L L. 207–226 (2002); Aldo Chircop, Places of Refuge (2005); Aldo Chircop, Law of the Sea and International Environmental Law Considerations for Places of Refuge for Ships in Need of Assistance, 51 PUB. OCEAN DEV. 231– 270 (2006); Places of Refuge For Ships: Emerging Environmental Concerns of a Maritime Custom (Aldo Chircop & Olof Lindén eds., 2006). 242 Chapter VII compliance with the minimum applicable international rules and standards for safe shipping and protection of the marine environment from vessel source pollution and risks. Effective port state control can prevent sub-standard shipping, which is a key factor in reducing vessel source pollution. The IMO is actively involved with a number of regional port state control organizations, including the Black Sea.

2.3 Black Sea Coastal States Implementation of International Conventions Although all six Black Sea coastal States are members of the IMO, region-wide ratification of the IMO Conventions remains inconsistent as shown in Table 2.1374 However, in assessing the degree to which the Black Sea States are meeting generally accepted international rules and standards of the IMO the percentage of ratification of IMO instruments should be taken into account as a reflection of the level of “general acceptance.” For example, in the case of MARPOL 73/78 and Annexes I–II, a total of 151 contracting States representing world tonnage of 98.91 percent are Parties. Without doubt, this would constitute a generally accepted international rule and standard. All Black Sea States have ratified MARPOL 73/78 and Annexes I and II. Whereas, Romania and Bulgaria are the only Black Sea States that have ratified Annexes I–VI of the ’73/78 MARPOL, and Bulgaria the only State to have ratified Annexes I–VI. And while all six States have ratified the 1992 CLC, Ukraine has not ratified any of the Fund Protocols. Turkey and Russia are the only countries that have signed both the 1996 HNS and 1990 OPRC Conventions. However, in view of the number of contracting Parties and world tonnage as shown in Table 16 below, the 1990 OPRC would be the only one of these two instruments to constitute a generally accepted international rule or standard. On the issue of liability and compensation, except for Ukraine all five Black Sea States are Parties to an international instrument for establishing liability and compensation for environmental damage. This would also fulfill the obligation under Article XVI (3) of the Bucharest Convention for the Parties to ensure the availability of prompt and adequate compensation for pollution damage, in this case oil pollution. However, ratification of all protocols to the CLC and Fund by all Black Sea States would further fulfill their obligation to harmonize national laws under Article XVI (4) in regard to compensation for oil pollution damage.

1374 The data contained in Table 2 is taken from the IMO website in 2012. See “Status of Conven- tions by Country” available at http://www.imo.org. See also, Oral, National Report: Black Sea, supra note 94; Oral, The Black Sea: Moving Forward, in The World Ocean in Globalisation, Climate Change, Sustainable Fisheries, Biodiversity, Shipping, Regional Issues, supra note 514. Vessel Source Pollution and Offshore Activities in the Black Sea 243

Table 16. IMO Conventions Ratification Percentage1375

Instrument Total Contracting Parties World tonnage % Marpol 73/78 Annex I–II 151 98.91 Marpol 73/78 Annex III 136 96.23 Marpol 73/78 Annex IV 129 86.69 Marpol 73/78 Annex V 143 97.14 Marpol 73/78 Annex VI 68 91.16 CLC ’69 53 2.8 CLC ’92 128 97.18 FUND ’76 31 47.33 FUND ’92 109 94.13 FUND 2000 – – FUND 2003 28 20.44 OPRC 1990 104 70.8 HNS ’96 (not in force) 13.61 OPRC-HNS 28 38.43 London Convention 1972 87 67.17 1996 Protocol to London Convention 41 34.29 Anti-Fouling Convention 59 79.17

Table 17. Marpol 73/78 and Annexes for the Black Sea States

Signatory Marpol 73/78 Marpol 73/78 Marpol 73/78 Marpol 73/78 Marpol 97 Black Sea (I/II) (III)-92 Harmful (IV) (IV) (VI) States Oil Waste-83 Bulk Substances Sewage Garbage-89 Air Pollution Bulgaria X X X X X Georgia X X X X Romania X X Russian X X X X Federation Turkey X X Ukraine X X X X

Furthermore, only Bulgaria and Georgia have ratified the 1996 London Protocol (see Table 17). In terms of global ratification, given the low level of international participation the Black Sea States would not be in violation of implementing generally accepted international standards. Bulgaria, Romania and Russia are the only three States to have ratified the 2001 Anti-Fouling Convention,1376 which on the one hand

1375 Available at http://www.imo.org/About/Conventions/StatusOfConventions/Pages/Default .aspx. 1376 The International Convention on the Control of Harmful Anti-fouling Systems on Ships, 5 Oct. 2001 (“Anti-Fouling Convention”). 244 Chapter VII

Table 18. IMO Conventions

Black Sea States 1976 London 1996 Protocol 2001 Anti-Fouling 2004 Ballast Convention to the London Convention Water Convention Convention Bulgaria X X X Georgia X X Romania X X Russian Federation X X Turkey X Ukraine X has nearly sixty percent of the world tonnage but on the other hand a relatively low number of contracting Parties. None of the States, however, have yet signed or ratified the 2004 Ballast Management Convention, despite the serious risk that the introduction of harmful invasive species poses to the sensitive Black Sea marine ecosystem. Because of the significant volume of oil transported in tankers in the Black Sea, implementation of Annexes I and II of MARPOL 73/78 on oil waste is extremely important for the Black Sea. In this case all Black Sea States are Parties thereby meeting the requisite international standards under the 1982 LOSC. Furthermore, the six Black Sea States are Parties to the 1976 London Convention and in this case would be in fulfillment of implementing the minimum level of accepted international standards for regulating dumping activities at sea. However, implementation of the 1996 Protocol to the London Convention, which reflects best legal practices, by Black Sea States would be recommended to provide enhanced protection of the marine environment. Moreover, given the serious ecological and economic damage brought to Black Sea fish stocks by invasive species through ballast water exchange it is clear that the 2004 Ballast Water Convention is important for the Black Sea. However, as it has not yet entered into force at the global level the Black Sea States are not acting below international standards.

3. Comparative Regional Seas Analysis Framework

Keeping in mind the overall international character of shipping and the dominant place of international rules and standards, the primary function at the regional level is to coordinate and harmonize implementation and enforcement of international rules and standards. However, in addition to this function, the regional level of governance should also play key part in promoting co-operation in adopting other tools for protection of the marine environment from vessel source pollution such as designation of vulnerable areas as PSSA, developing marine spatial planning and an integrated coastal management approach on a regional level in accordance with the needs of the marine ecosystem and impact of maritime activities. Vessel Source Pollution and Offshore Activities in the Black Sea 245

A comparative review of the existing regional approach in the Mediterranean Sea, Baltic Sea and the European Union provides important insight in assessing how regionalism can be used in regulation of maritime activities in the Black Sea.

3.1 The Mediterranean Sea The regional seas legal framework for shipping activities in the Mediterranean Sea is fairly well developed. Four of the seven implementing Protocols of the Barcelona Convention1377 are directly related to prevention of vessel source pollution: the Pro- tocol for the Prevention and Elimination of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft or Incineration at Sea (Dumping Protocol);1378 the Protocol in Cases of Emergency, Combating Pollution of the Mediterranean Sea (Pre- vention and Emergency Protocol),1379 (Emergency Protocol); the Protocol for the Protection of the Mediterranean Sea Against Pollution Resulting from Exploration and Exploitation of the Continental Shelf and the Seabed and its Subsoil (Offshore Protocol),1380 and the Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements of Hazardous Wastes and their Disposal (Izmir Protocol).1381 The revised Dumping Protocol, in contrast to the original protocol, includes a ban on the incineration of material at sea. Furthermore, it adopts the reverse listing system of the 1996 London Protocol,1382 according to which dumping is prohibited unless expressly allowed under the Protocol.1383 The 2004 Prevention and Emer- gency Protocol, which replaced the 1976 Emergency Protocol, expanded the duty of co-operation to include taking preventive actions against vessel-source pollution in addition to scope co-operation in preparedness and response to pollution incidents. This new preventive dimension is reflected in the requirement for the Parties, in their capacities as a flag State, a coastal State or a port state to develop their respective national capacities for implementation of international conventions for the

1377 see supra note 90. 1378 10 June 1995. When it enters into force the Protocol will replace the Protocol for the Preven- tion of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft, 16 Feb. 1976. See Tullio Scovazzi, “The recent developments in the Barcelona system for the protection of the Mediter- ranean against pollution,” 11 Int’l J. Mar. & Coastal L. 96–112 (1996). 1379 25 January 2002 (Valetta Protocol) entered into force 17 March 2004, replacing the 1976 Protocol Concerning Cooperation in Combating Pollution of the Mediterranean Sea by Oil and other Harmful Substances in Cases of Emergency. 1380 14 Oct. 1994, in force 24 March 2011. 1381 Supra note 90. 1382 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 13 Nov. 1972, 1046 U.N.T.S. 120 (“London Convention”), as amended by the 1996 Protocol, 7 Nov. 1996, reprinted in 36 ILM 1 (1997). Article 4 of the Protocol expressly requires the Parties to restrict the dumping of wastes of other matter unless listed in Annex I of the Protocol. 1383 The original protocol allowed dumping of materials unless expressly prohibited in annex I, the black list, or materials listed in annex II that were subject to a special permit, also known as the grey list. 246 Chapter VII prevention of ship-source pollution and co-operate to this end.1384 Additionally, the Parties either individually or in co-operation are required to provide the necessary port reception facilities for ships. An important institution created by the original 1976 Emergency Protocol was the Regional Oil Combating Centre for the Mediterranean Sea established to provide technical assistance to the Mediterranean coastal States in the implementation of the Emergency Protocol. The Centre (sic) was later replaced with the REMPEC as a joint undertaking between the Barcelona system and the IMO.1385 It is governed by the Contracting Parties, administered by the IMO and financed by the Mediterranean Trust Fund. REMPEC serves five key functions in the regional prevention of ship source pollution: providing support in capacity building, developing co-operation in regional prevention, facilitating co-operation in response to emergencies, supporting countries in developing national pollution response capabilities, facilitating the exchange of information and providing support to countries in obtaining regional or international assistance in the case of an emergency. The Offshore Protocol is a comprehensive instrument regulating the erection, operation and removal of offshore installations. It introduces a set of mandatory common regional standards for the authorization of offshore activities on the continental shelf and seabed and its subsoil that include conducting prior impact assessments and preparing contingency plans.1386 The Protocol also requires the Parties to formulate common standards for the disposal of oily mixtures from offshore installations.1387 According to the Protocol, the Parties are also required to remove all unused or abandoned installations taking into account IMO guidelines.1388 The Protocol further includes a provision on special protected areas in which the Parties are required to adopt special measures to prevent, abate, combat and control pollution. However, the Protocol does not require Parties to prohibit offshore activities in specially protected areas.1389 The Protocol also contains a separate section on co-operation requiring the Parties to co-operate in a range of issues including:

• Scientific and technological research; • Establishing international rules, standards, practices and procedures; • Harmonization of their laws; • Providing technical and capacity building assistance to developing countries;

1384 Article 4(2). 1385 For information on REMPEC see http://www.rempec.org/rempec.asp?theIDS=2_149&the Name=ABOUT%20REMPEC&theID=6&daChk=0&pgType=1. 1386 Section III, articles 4 – 6 inclusive detail the authorization requirements that the Contract- ing Parties must impose as preconditions to any exploration or exploitation activities in the area concerned. 1387 Article 10. 1388 Article 20. The provision makes reference to the “competent international organization” which is the IMO. See supra note 1341. 1389 Article 21. Vessel Source Pollution and Offshore Activities in the Black Sea 247

• Notification in the case of transboundary pollution; and • Formulation of rules and procedures for liability and compensation in the case of a pollution incident.1390

The Izmir Protocol is an important and innovative instrument addressing the transport and disposal of hazardous waste.1391 Its scope of application extends beyond that of its international counterpart the Basel Convention, by providing a broader definition of waste that includes radioactive wastes, and by including the requirement of prior notice to and obtaining the written consent of coastal transit states.1392

3.2 The Baltic Sea The legal governance structure for the prevention, reduction and control of vessel source pollution for the Baltic Sea is based on four annexes to the Helsinki Conven- tion, the Baltic Sea Action Plan, and a set of non-binding recommendations. The four annexes related to the regulation of vessel source pollution and maritime risks are: Annex IV on the “Prevention of pollution from ships”; Annex V on “Exemptions from the general prohibition of dumping of waste and other matter in the Baltic Sea Area”; Annex VI on “Prevention of pollution from offshore activities”; and Annex VII on “Response to pollution incidents”. The Baltic Sea Action Plan (Baltic Sea-SAP),1393 designed to assure that the Baltic Sea attains good ecological status by 2021,1394 is based on achieving eight management goals: (1) Enforcement of international regulations – that is no illegal discharges; (2) Safe maritime traffic without accidental pollution; (3) Efficient emergency and response capability; (4) Minimum sewage pollution from ships; (5) No introduction of alien species from ships; (6) Minimum air pollution from ships; (7) Zero discharges from offshore platforms; and (8) Minimum threats from offshore installations.1395 Each objective is supported by a set of decisions adopted by the Parties as well as actions plans or roadmaps. Other important measures for protection of the marine and coastal environment adopted by the Helsinki programme include:

1390 Section V. Articles 22–27 inclusive. 1391 Supra note 90. 1392 See Tullio Scovazzi, The Transboundary Movement of Hazardous Waste in the Mediterranean Regional Context, 19 UCLA J. Envtl. L. & Pol’ 231 (2000–2001); Tullio Scovazzi, New Ideas as Regards the Passage of Ships Carrying Hazardous Wastes: the 1996 Mediterranean Protocol, 7 Rev. Eur. Community & Int’l Envtl L. 264 (1998). 1393 Adopted at the HELCOM Ministerial Meeting on 15 November 2007 in Krakow, Poland. 1394 The WWF has expressed criticism that the final text adopted by the Parties fell far short of the ambitious measures foreseen in the initial text. See WWF Position Statement on the Baltic Sea Action Plan, 15 November 2007. Available at http://assets.panda.org/downloads/final_wwf_position_ on_the_bsap_15_november_2007.pdf. 1395 Available at http://www.helcom.fi/stc/files/BSAP/BSAP_Final.pdf. 248 Chapter VII

• Establishing a SOx ship emission control areas (SECA) in 2006 pursuant to Annex VI of MARPOL 73/78 for the Baltic Sea; • Adopting an action plan for the protection of the environment from offshore platforms that includes a “zero discharge” objective; • Adopting a ballast water management roadmap towards a harmonized implementation and adoption of the 2004 Ballast Water and Sediments Convention; • Agreement by the Baltic coastal States to ratify the 2004 BWM Convention by 2010–2013 at the latest; • Adopting a decision to create a HELCOM network of ecologically coherent network of MPAs by 2010; • Developing a joint action with the IMO for amendment to Annex VI of MARPOL for standards for nutrients in sewage discharges from ships; • Agreement to be fully prepared for a medium oil spill by 2013 and all hazardous substances by 2016; • Improving the detection system for illegal discharges in the Baltic Sea by satellite and AIS [automatic information system]; • Agreement by the nine Baltic States to harmonize the minimum amount of administrative fines for violation antipollution regulations; • Agreement by the nine Baltic States to harmonize the minimum amount of administrative fines for violation antipollution regulations; • Agreement to develop marine spatial planning principles and tools by 2012; • Introducing economic incentives as a complement to existing regulations to reduce ship-source emissions; and • Application of the no special fee system to ship-generated wastes and marine litter caught in fishing nets in the Baltic Sea areas.

The Helsinki Commission (HELCOM), recognizing the growing risk to the marine environment created by the increase in shipping traffic and oil transportation, adopted an active and dynamic approach for shipping measures.1396 One of the more ambitious steps undertaken was the proposal to have the IMO designate the Baltic Sea as a PSSA. After some debate and controversy, in 2005 the IMO designated the Baltic Sea area, (Denmark, Estonia, Finland, Germany, Latvia, Lithuania, Poland and Sweden), with the exception of Russian Federation national waters, as a PSSA with associated protected measures.1397 These APMs included ship routing

1396 Anne C. Brusendorff & Peter Ehlers, The HELCOM Copenhagen Declaration: A Regional Envi- ronmental Approach for Safer Shipping, 17 Int’l J. Mar. & Coastal L. 351 (2002). 1397 Ylva Uggla, Environmental protection and the freedom of the high seas: the Baltic Sea as a PSSA from a Swedish Perspective, 31 Mar. Pol’y 251–257 (2007). For an excellent discussion of PSSAs and APMs, Markus J. Kachel, Particularly Sensitive Sea Areas: The IMO’s Role in Pro- tecting Vulnerable Marine Areas (2008). Vessel Source Pollution and Offshore Activities in the Black Sea 249 measures1398 such as: mandatory ship reporting,1399 transit route, deepwater route,1400 fifteen traffic separation schemes,1401 localized compulsory pilotage, and two areas to be avoided.1402

3.3 Bonn Agreement and OSPAR The Bonn Agreement for Co-operation in Dealing with Pollution of the North Sea by Oil and other Harmful Substances, as amended in 20011403 was adopted by the coastal States of the North Sea1404 to address the threats of oil pollution.1405 The Bonn Agreement is the first regional framework setting up surveillance to aid in detection of spills and combating oil pollution.1406 The strength of the framework is demonstrated by the requirement that the Parties co-operate in jointly developing guidelines for joint and coordinated surveillance action.1407 Under the Bonn Agree- ment the Baltic Sea is divided into zones of national and of joint responsibility for

1398 Julian Roberts, Protecting Sensitive Marine Environments: The Role and Application of Ships’ Routeing Measures, 20 INT’L J. MAR. & COASTAL L. 135–159 (2005). 1399 Under regulation 11 of Chapter V of the Safety of Life at Sea Convention 1974 ship reporting can be made mandatory by the coastal State. It is usually limited to requiring the ship to report its name, IMO number and position. See also, The Relationship between International Navigation Rights and Environment Protection: A Legal Analysis of Mandatory Ship Traffic Systems, supra note 974. 1400 A deepwater route is a route within defined limits which has been accurately surveyed for clearance of the sea bottom and submerged obstacles. See also Julian P. Roberts, J. Siân H. Pullen, A Review of global experience with particularly sensitive sea areas (PSSAs), in Maritime Traffic Effects on Biodiversity in the Mediterranean Sea, 49–94 (Nilufer Oral & Francois Simard, eds., 2009). 1401 Similar to land-based traffic lanes traffic separation schemes are designed to separate ship traffic navigating in opposite direction. It is regulated by Rule 10 of the International Regulations for Preventing Collision at Sea 1972, as amended (“COLREGS”), 20 Oct. 1972, 1050 U.N.T.S. 17 (1972). 1402 An ‘area to be avoided’ is defined by the IMO as a “routing measure comprising an area within defined limits in which either navigation is particularly hazardous or it is exceptionally important to avoid casualties and which should be avoided by all ships, or certain classes of ships.” International Maritime Organization, General Provisions on Ships’ Routeing Sect. 2.1.12. 1403 9 June 1969, 704 U.N.T.S. 3, reprinted in 9 ILM 359 (1970), amended in 1983. See also Sands, supra note 203, at 452–53; Peter Ehlers, History of the North Sea Conferences, 5 int’l j. of estuarine & coastal l. 3 (1970). 1404 The Contracting Parties are: the Belgium, Denmark, Germany, France, the Netherlands, Norway, the United Kingdom and the European Community. Ireland is in the process of acceding to the Agreement. 1405 Article 2 of the Bonn Agreement defines the North Sea to comprise the North Sea proper, southwards of latitude 61° 0′ 00.00″N, the Skagerrak, the southern limit of which is determined east of the Skaw by the latitude 57° 44′ 43.00″ N, the English Channel and its approaches, bounded on the south and west by the line defined in Part I of the Annex to this Agreement; the other waters, comprising the Irish Sea, the Celtic Sea, the Malin Sea, the Great Minch, the Little Minch, part of the Norwegian Sea, and parts of the North East Atlantic, bounded on the west and north by the line defined in Part II of the Annex to the Agreement. 1406 Ferraro et al., supra note 1333, at 631. 1407 Article 3(2) Specifically mandates that “the Contracting Parties shall jointly develop and establish guidelines for the practical, operational and technical aspects of joint action and coordinated surveillance as referred to in Article 6A”. 250 Chapter VII purposes of addressing pollution from oil and other harmful substances.1408 Aerial surveillance is included among the active obligations to be undertaken by the Par- ties either individually within their zone of national responsibility or jointly.1409 The implementation of the Bonn Agreement is facilitated by the Bonn Agreement Work- ing Group on Operational, Technical and Scientific questions concerning counter Pollution Activities (OTSOPA).1410 One of the important results of the Bonn Agree- ment has been regular national and regional aerial surveillance for oil spills that has generated an important data base oil discharges in the sea.1411 The OSPAR Convention,1412 with a total of fifteen member Governments, is broader than the Bonn Agreement.1413 The OSPAR Convention does not directly address vessel sources of pollution. Instead, Annex II addresses dumping that includes regulations for dumping from vessels and Annex III deals with pollution from offshore sources. In regard to offshore sources of pollution, the OPSAR Programme has adopted an ambitious objective of reducing emissions to the sea to as close to “zero” or natural emission rates as possible. Based on years of experience with offshore oil exploration and exploitation, OSPAR has developed a regulatory system aimed at the sustainable management of its offshore energy activities through the Offshore Oil and Gas Industry Strategy (Offshore Industry Strategy).1414 The OSPAR Commission has also undertaken important efforts to promote co- operation at the regional level in detecting and enforcing illegal discharges in the marine environment. The Commission developed and published the North Sea Man- ual on Maritime Oil Pollution Offences with the specific objective of improving the implementation and enforcement of MARPOL 73/78.1415 In 2002 the Fifth North Sea Conference created the Network of North Sea Investigators and Prosecutors (North Sea Network) established and supported by the OSPAR Secretariat. The Manual explains that a vessel may engage in illegal discharge of oil in the EEZ of one State while en route between the ports in other countries. For this reason, “[c]ooperation

1408 Article 6 and Annex to the Bonn Agreement. 1409 Article 6(A). 1410 Ferraro et al., supra note 1332, at 631. 1411 Id. 1412 See supra note 89. 1413 The Contracting Parties for the OSPAR Convention are Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden, Swit- zerland, and the United Kingdom. According to Article 1 (a) its geographic scope of application includes those parts of the Atlantic and Arctic Oceans and their dependent seas that lie north of 36° north latitude and between 42° west longitude and 51° east longitude, excluding areas of the Baltic Sea and Belts and of the Mediterranean Sea; and that part of the Atlantic Ocean north of 59° north latitude and between 44° west longitude and 42° west longitude. 1414 See http://www.ospar.org/html_documents/ospar/html/10-03e_nea_environment_strategy .pdf#OIC. 1415 North Sea Manual on Maritime Oil Pollution Offences (OSPAR Commission 2010). The first Manual on “Oil Pollution At Sea-Securing Evidence on Discharges from Ships” was published in 1993 by the Bonn Agreement and disseminated internationally through the IMO. In 1999 Part 2 was published as the Manual “Oil Pollution at Sea-Part 2: Effective Prosecution of Offenders.” Vessel Source Pollution and Offshore Activities in the Black Sea 251 between neighboring States is therefore essential, and effective co-operation requires a common understanding of what is involved.”1416 The Offshore Strategy sets the objectives of preventing and eliminating pollution and taking the necessary measures to protect the maritime area against the adverse effects of offshore activities so as to safeguard human health, of conserving marine ecosystems and, when practicable, of restoring marine areas which have been adversely affected.1417 Listed among the guiding principles is an integrated ecosystem approach.1418 In addition, the OSPAR Commission committed itself to carry out assessments of the potential adverse effects, other than pollution, arising from offshore activities, on the ecosystems and biological diversity of the maritime area as part of OSPAR’s Strategy on the Protection and Conservation of the Ecosystems and Biological Diversity of the Maritime Area. This Strategy identified the exploration for oil and gas and the placement of structures, cables and pipelines for oil and gas exploration and exploitation to be among the first in a list of candidate human activities for assessment.1419 Also, in response to the proposed European Union (EU) Marine Strategy Framework Directive,1420 HELCOM and the OSPAR Commission adopted a common position that specifically addressed offshore oil and gas activities.1421 Recognizing that offshore oil exploration in the Baltic Sea would be increasing, HELCOM declared that it would develop uniform principles for oil extraction in the Baltic Sea.1422 Furthermore, the OSPAR Commission has taken the initiative to develop marine spatial planning for the North Sea.1423 In 2003, HELCOM and the OSPAR Commis- sion jointly adopted a statement of “their common vision of an ecosystem approach to managing human activities impacting on (sic) the marine environment (an “ecosystem approach”) in their maritime areas”1424 and specifically mentioned use of MSP in the management of human activities,1425 including the development of offshore alternative energy activities, such as wind farms.1426

1416 Id., at 4. 1417 Id. 1418 Id., para. 2.1 (iv). 1419 Id., para. 3.4; and Strategy 1 “Biological Diversity and Ecosystems,” para. 2.2 (d) (iii) and (iv). 1420 Marine Strategy Framework Directive, supra note 48. 1421 Statement on the European Marine Strategy: What HELCOM and OSPAR can bring to the development of the European Marine Strategy, First Joint Ministerial Meeting of the Helsinki and OSPAR Commissions (JMM) Bremen: 25–26 June 2003, Annex 6, Paras. 42–45. Available at http:// www.ospar.org/eng/html/welcome.html. 1422 Id., at para. 44. 1423 See Ellen Hey, The International Regime for the Protection of the North Sea: From Functional Approaches to a More Integrated Approach, 17 Int’l J. Mar.& Coastal L. 325–350 (2002). 1424 Statement on the Ecosystem Approach to the Management of Human Activities: “Towards an Ecosystem Approach to the Management of Human Activities”, para. 7. Available at http://www .ospar.org/content/content.asp?menu=00430109150000_000000_000000. 1425 Id., at para. 24 (c). 1426 Id., at para. 10. 252 Chapter VII

Source: OSPAR 20091427 Map 4. Northeast Atlantic Sea (OSPAR) Particularly Sensitive Sea Areas, Special Areas under MARPOL and SOx Emission Control Areas in the Northeast Atlantic OSPAR Maritime Area

3.4 European Union The European Union maritime policy and legislative framework for maritime activities and prevention of vessel-source pollution provides a complex system of implementation of global obligations at a regional level. The regulatory framework for international shipping came under scrutiny in the EU following the 1999 Erika1428 and 2002 Prestige1429 maritime accidents, which resulted in two of the worst oil

1427 JAMP Assessment on shipping, Publication no. 440 (OSPAR 2009), available at http:// www.ospar.org/html_documents/ospar/html/north_sea_manual_on_maritime_oil_pollution_ offences.pdf. 1428 On 12 December 1999 the M/T Erika, laden with 30,884 tonnes of heavy oil, during inclement weather broke into two spilling thousands of gallons of crude oil into the marine environment off the coast of Brittany, France and causing millions of Euros of environmental damage to the sea and coastal areas. For details of the accident and the investigation see Permanent Commis- sion of Enquiry into Accidents at Sea (CPEM): Report of the Enquiry into the Sinking of the Erika off the Coasts of Brittany on 12 December 1999. Available at http://www.beamer- france.org/BanqueDocument/pdf_87.pdf. 1429 On 13 November 2002 the M/T Prestige laden with 77,033 metric tons of fuel was caught in a storm off the Galician coast of Spain when one of its tanks burst. When Spanish, French and Portuguese authorities denied the tanker entry into ports on 19 November the Prestige broke into two and then sank releasing 20 million gallons of oil into the sea approximately 250 kilometers from the Spanish coast. For an excellent critical review of the 1982 LOSC framework on coastal State jurisdiction, the role of the IMO and the response of the EU following the Prestige accident, including proposals to amend the 1982 LOSC to grant greater competence to the coastal state to prevent the transit of vessels that pose a threat to the marine environment. see Veronica Vessel Source Pollution and Offshore Activities in the Black Sea 253 pollution incidents for European seas and coastal areas. The EU re-examined and revised its existing maritime policies based on these incidents.1430 The outcomes of this review were the Erika I, Erika II and Erika III packages and numerous new or revised directives.1431 One of the important results of these reforms was the creation of the centralized European Maritime Safety Agency (EMSA).1432 The Erika packages also introduced reforms for improving maritime safety and protection of the marine environment1433 such as expanded port state control inspections,1434 including a system of banning ships from EU ports that were black-listed by the Paris MOU,1435

Frank, Consequences of the Prestige Sinking for European and International Law, 20 Int’l J. Mar.& Coastal L 1 (2005); On the economic costs of the spill, see M. Dolores Garza-Gil, Juan C. Suris- Regueiro & Manuel M. Varela-Lafuente, Assessment of economic damages from the Prestige oil spill, 30 MAR. POL’Y 544–551 (2006). 1430 Veronica Frank, The European Community and Marine Environmental Protection in the International Law of the Sea (2008). 1431 Erika I, Commission communication of 21 March 2000 to the European Parliament and the Council on the safety of the seaborne oil trade, COM (2000) 142 final, O.J. (C 212E) 121; Erika II, Communication from the Commission to the Council and the European Parliament of 6 December 2000 on a second set of Community measures on maritime safety following the sinking of the oil tanker Erika, COM(2000) 802 final, O.J. (C 081E) 102; and Erika III, A Communication from the Commission: The third set of Community legislative measures in favor of maritime safety, COM(2005) 585 final. 1432 EMSA was established under the Erika II package. Its function includes providing the Euro- pean Commission with technical and scientific advice on maritime safety and prevention of vessel source pollution. See, Henrik Ringbom, The “Erika” Accident and Its Effects on EU Maritime Regula- tions, in Current Marine Environmental Issues and the International Tribunal for the Law of the Sea 265–285 (Myron H. Nordquist & John Norton Moore, eds., 2001); Malgorzata Anna Nesterowicz, European Union Legal Measures in Response to the Oil Pollution of the Sea, 29 Tul. Mar. L.J. 29 (2004). 1433 One of the more controversial laws was Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of pen- alties for infringements, O.J. (L. 255) 11; [corrigenda at L 33, 2006, p. 87, and L 105, 2006, p. 65] which imposed criminal sanctions for discharges made in internal waters, territorial seas, EEZ, straits used in international navigation and the high seas if committed intentionally, recklessly or by serious negligence. The Directive was challenged before the European Court of Justice (ECJ) as being in violation of 73/78 MARPOL Convention and the 1982 LOSC. However, the ECJ upheld the Directive on the grounds that the Community was not a Party to the 73/78 MARPOL Convention and therefore not bound by it and furthermore, that the individuals could not assert any rights against the State based on the Convention. For a discussion of the decision see Alan Khee-Jin Tan, The EU Ship-Source Pollution Directive and Recent Expansions of Coastal State Jurisdiction, in Law, Technology and Science for Oceans in Globalisation, Iuu Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf supra note 1352, at 291–305. 1434 See Article 14 of Council Directive 2009/16/EC on port State control (Recast), 2009 O.J. (L 131/57); and Article 7 of Council Directive 2001/106/EC amending Council Directive 95/21/EC concerning the enforcement, in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ship safety, pollution prevention and shipboard living and working conditions (port state control), 2002 O.J. (L 19) 17. 1435 According to article 7(b) of Directive 2001/106/EC access to EU ports must be denied to those ships that: “either – flies the flag of a State appearing in the black list as published in the annual report of the MOU, and – has been detained more than twice in the course of the preceding 24 months in a port of a State signatory of the MOU, or – flies the flag of a State described as ‘very high risk’ or ‘high risk’ in the black list as published in the annual report of the MOU, 254 Chapter VII accelerated implementation of the double hull requirements for EU-flagged vessels, ship reporting system,1436 establishment of a monitoring and information system for surveillance of maritime traffic in European waters,1437 mandatory use of AIS and VDR (Black boxes),1438 and the preparation by each Member State of emergency plans for places of refuge.1439 In addition to the maritime packages, as previously stated the Commission adopted the 2007 EU Integrated Maritime Policy (IMP)1440 and the 2008 MSFD.1441 The 2007 IMP set out a broad vision for a new EU maritime approach that is holistic and integrated with all other relevant sectors and activities, as part of the overall EU objective for sustainable development. The new policy under the 2007 IMP is expansive including a range of actions such as improving the efficiency of maritime transport, reduction of GHG and air pollution from ships, adaptation to climate change, creating a European network of maritime surveillance, use of marine spatial planning, developing synergies between energy and maritime policies, and developing maritime technologies.1442 The principal tools developed by the 2008 MSFD are marine planning and the creation of management units in the form of marine regions or sub-regions. Furthermore, each Member State is required to develop a marine strategy to protect and preserve the marine environment, prevent its deterioration and restore ecosystems.1443 Of growing importance is the use of ICZM1444 and marine spatial planning for integrating land, coastal and offshore activities.1445 Both the 2007 IMP and the 2008 and – has been detained more than once in the course of the preceding 36 months in a port of a State signatory of the MOU.” As of 1 January 2011 Directive 2009/16/EC extended EU port entry to vessel placed on the Paris MOU grey list in the previous thirty-six months. 1436 Directive 2002/59/EC establishing a Community vessel traffic monitoring and information system and repealing Council Directive 93/75/EEC, 2002 O.J. (L 208) 10. Ships intending to enter EU ports are required to provide certain information at least twenty-four hours in advance. Furthermore, ships transporting hazardous cargo have to deliver a declaration containing specified information. 1437 Directive 2002/59/EC Establishing a Community Vessel Traffic Monitoring and Informa- tion System and Repealing Council Directive 93/75/EEC, 2002 O.J. (L 208) 10. 1438 Id., at 10. 1439 Id., at 18. 1440 Supra note 565. See Timo Koivurova, A Note on the European Union’s Integrated Maritime Policy, 40 Ocean Dev. & Int’l L171–183 (2009); Lawrence uda, The European Union and Ocean use Management: The Marine Strategy and the Maritime Policy, 38 Ocean Dev. & Int’l L. 359–381 (2007). 1441 Supra note 48. 1442 For example, the 2007 IMP included the need for to link with existing systems of EU surveillance related to issues such as human trafficking and illegal immigration. Supra note 568, at 7. 1443 Marine Strategy Framework Directive, supra note 48. See Till Markus, Sabine Schlacke & Nina Maier, Legal Implementation of Integrated Ocean Policies: The EU’s Marine Strategy Framework Directive, 26 Int’l J. Mar. L. 59–90 (2011). 1444 COM (2000) 547 final. This was followed by the EU Recommendation 2002/413/EC concerning the implementation of integrated coastal zone management, 2002 O.J. (L 148) 24. See also John Gibson, Integrated Coastal Zone Management Law in the European Union, 31 Coastal Mgmt 127–136 (2003). 1445 Oral, Integrated Coastal Zone Management and Marine Spatial Planning for Hydrocarbon Activities in the Black Sea, supra note 80. Vessel Source Pollution and Offshore Activities in the Black Sea 255

MFSD stress the need for expanded co-operation with neighboring regional seas, especially through the existing Regional Seas Programmes and related instruments.1446 The regional seas approach espoused by the Commission can be seen in specific actions taken for the Baltic Sea,1447 the Arctic,1448 the Mediterranean Sea1449 and the Black Sea.1450 The bold and ambitious maritime policy adopted by the EU seeks to alter not only maritime practices within the EU but also in neighboring regions such as in the Black Sea.

4. Regional Framework for the Black Sea

4.1 Emergency Protocol The Bucharest Convention requires that the Contracting Parties adopt measures individually and/or in co-operation for the prevention, reduction and control of vessel source pollution in accordance with generally accepted international rules and standards.1451 More specifically, the Contracting Parties must co-operate in adopting emergency measures against accidental sources of pollution in accordance with the Emergency Protocol.1452 The Black Sea Emergency Protocol is a simple instrument that established a bare-bones legal framework rather than a strong regional structure to prevent, reduce and control vessel source pollution. It is composed of six articles and one Annex. The Protocol focus is on response measures to both accidental and operational oil spill pollution. The Parties are required to individually, or coop- eratively, maintain or promote contingency plans to combat pollution by oil and other harmful substances. The Protocol expressly requires that such contingency plans address equipment, vessels, aircraft and manpower needed to be prepared for emergency situations. The Contracting Parties are further required to ensure that vessels comply with the requirements of the Protocol. The Contracting Parties must also co-operate in the exchange of urgent information and reports in the case of an emergency situation falling under Article 1, i.e. an oil spill or other harmful substance release creating a grave and imminent danger to the marine environment of one or more of the Parties. Unlike its counter-part in the Mediterranean it lacks “preventive” measures, such as requiring port reception facilities, or an institutional structure parallel to REMPEC.

1446 See also, Developing the international dimension of the Integrated Maritime Policy of the European Union, COM (2009) 536 final. 1447 The European Union Strategy for the Baltic Sea Region, COM (2009) 248 final. 1448 The European Union and the Arctic region, COM (2008) 763 final. 1449 Supra note 610. 1450 Supra note 567. 1451 Article VII. 1452 Article IX. 256 Chapter VII

4.2 Dumping Protocol The Bucharest Convention also mandated the parties to adopt measures and co- operate in preventing, reducing and controlling pollution caused by dumping in accordance with the Dumping Protocol and prohibit dumping activities by non-Black Sea States,1453 and adopt laws and regulations to prevent, reduce and control pollution of the marine environment of the Black Sea from or through the atmosphere by aircraft or ships.1454 The Dumping Protocol, likewise, is a simple instrument made up of nine articles and three annexes. Based on the 1976 London Convention, the Proto- col either prohibits or requires a permit for the dumping of listed material. Dumping in the Black Sea of hazardous substances listed in Annex I is prohibited.1455 Dump- ing noxious substance matter listed in Annex II requires a prior special permit issued by the competent national authorities,1456 but dumping of all non-listed material requires only a general permit issued by the competent national authorities.1457 The Protocol is to be enforced by each Contracting party against vessels flying its flag or aircraft registered in its territory, vessels and aircraft loading wastes or other matter in its territory, platforms and other man-made structures at sea situated within its territorial sea and exclusive economic zone, and for all dumping activities within its territorial sea and exclusive economic zone.1458 Thus far, no initiatives have been undertaken by the Black Sea States to revise the Dumping Protocol to reflect the amendments made to the 1972 London Convention by the 1996 London Protocol.

4.3 Offshore Activities The Black Sea Bucharest Convention mandated that the Parties, as soon as possible, adopt laws and regulations, and take measures to prevent, reduce and control pollution of the marine environment of the Black Sea caused by or connected with activities on its continental shelf, including the exploration and exploitation of the

1453 Article X. 1454 Article XII. 1455 Article 3. The substance matter listed in Annex II are: Organohalogen compounds e.g. DDT, DDE, DDD, PCB’s; Mercury and mercury compounds; Cadmium and cadmium compounds; Organ- otin compounds; Persistent synthetic materials which may float, sink or remain in suspension; Used lubricating oils; Lead and lead compounds; Radioactive substances and wastes, including used radioactive fuel; Crude oil and hydrocarbons of any origin. 1456 Biocides and their derivatives not covered in Annex I; cyanides, fluorides, and elemental phosphorus; Pathogenic micro-organisms; non-biodegradable detergents and their surface-active substances; alkaline or acid compounds; thermal discharges; substances which, although of a non- toxic nature, may become harmful to the marine biota owing to the quantities in which they are discharged e.g. inorganic phosphorus, nitrogen, organic matter and other nutrient compounds. Also, substances that have an adverse effect on the oxygen content of the marine environment. The following elements and their compounds: Zinc, Selenium, Tin, Vanadium, Copper, Arsenic, Barium, Cobalt, Nickel, Antimony, Beryllium, Thallium, Chromium, Molybdenum, Boron, Tellu- rium, Titanium, Uranium, Silver and crude oil and hydrocarbons of any origin. 1457 Article 4. 1458 Article 8. Vessel Source Pollution and Offshore Activities in the Black Sea 257 natural resources of the continental shelf, and to co-operate in harmonization of such laws.1459 However, to date the Black Sea regional framework does not have a separate instrument or strategy for offshore activities on the continental shelf or its subsoil despite the requirement under the Bucharest Convention for the Contracting Parties to co-operate in harmonizing their laws regulating offshore activities on the continental shelf. At the very least a set of guidelines should have been prepared and adopted. This lacuna has taken on urgency in light of the increasing level of offshore oil and gas exploration in the Black Sea. Furthermore, despite a commitment to adopt a Protocol on the transport of hazardous wastes such as the Izmir Protocol,1460 no instrument has been prepared.1461

5. Other Co-operative Tools for Regulating Vessel Source Pollution

5.1 Port State Control Port state control plays an increasingly important role in enforcement of the internationally accepted rules and standards for shipping.1462 It is defined as the power of a state to “board, inspect, and where appropriate detain” a foreign flagged vessel that enters its port.1463 The concept of regional port state control was developed in reaction to the grounding of the Amoco Cadiz off the coast of Britanny in 1978 leading eight States to adopt the 1978 Hague Memorandum of Understanding on Part State Control (Hague MOU).1464 Since 1978 a total of nine regional Port State Control Memoranda of Understanding (MOU) have been concluded,1465 including the Black

1459 Article XI. 1460 Supra note 90. 1461 See 2009 Black Sea-SAP, supra note 42, at 40–41. 1462 Authors distinguish between port state control and port state jurisdiction. The latter encom- passes the broader power of the state to prosecute and fine ships that violate international rules and standards, whereas port state control is more limited to the procedure of exercising port state jurisdiction as prescribed under specific conventions such as Marpol 73/78 or under the regional agreements. See Tatjana Keselj, Port State Jurisdiction in Respect of Pollution from Ships: The 1982 United Nations Convention on the Law of the Sea and the Memoranda of Understanding, 30 Ocean Dev.& Int’l L 127 (1999); Bang, Is Port State Control an Effective Means to Combat Vessel-Source Pollution? An Empirical Survey of the Practical Exercise by Port States of Their Powers of Control, supra note 404; Erik Jaap Molenaar, Port State Jurisdiction: Toward Comprehensive, Mandatory and Global Coverage, 38 OCEAN DEV. & INT’L L. 225(2007). 1463 See E.R. DeSombre, Flagging Standards: Globalization and Environmental, Safety and Labor Regulations at Sea 87 (2006). See also, Özcayir, supra note 86. 1464 The eights countries were Belgium, Denmark, France, Germany, the Netherlands, Norway, Sweden and the United Kingdom. See Doris König, Port State Control: An Assessment of European Practice, in Marine Issues: From a Scientific, Political and Legal Perspective 37–54, 37 (Peter N. Ehlers, Elisabeth Mann Borgese & Rudiger Wolfrum eds. 2002). 1465 Other Port State Control MOUs are the 1982 Paris MOU, the 1992 Acuerdo de Viňa del Mar MOU, the 1993 Tokyo MOU, the 1996 Caribbean MOU, the 1997 Mediterranean MOU, the 1998 Indian Ocean MOU, the 1999 Abuja MOU and the 2004 Riyadh MOU. 258 Chapter VII

Sea MOU concluded in 2000.1466 The key objective of this regional approach to port state control of vessels is to ensure some uniformity among the different port authorities to avoid “port shopping” or ports of convenience and, through better co-operation, reduce repeat inspections of ships within the same region.1467 In addition to regional harmonization there has been increased inter-regional co-operation among the different regional MOUs such as in the case of the Black Sea MOU. Port State control in the Black Sea has been developed with the close co-operation of the IMO and with the Paris MOU.1468 For example, the Black Sea MOU has adopted a number of tools used by the Paris MOU, notably the Concentrated Inspection Cam- paign (CIC)1469 and the on-line listing of banned vessels. However, the Black Sea MOU only targets for annual inspection fifteen percent of foreign flagged vessels entering its ports voluntarily.1470 In contrast, the Paris MOU has moved beyond its original target of twenty-five percent inspection rate to establish a system that targets certain vessels based on a number of factors and that publishes a list of vessels whose detention levels have been higher than average. The Paris MOU also began designating the “rust-bucket of the month” and in 2002 instituted a White-Grey- Black listing of vessels based on deficiencies and detentions.1471 The Black Sea MOU has instituted co-operation has with the Mediterranean MOU and the US Coast Guard, both of which were accorded observer status in 2005.1472

5.2 Particularly Sensitive Sea Area (PSSA) The IMO created the Particularly Sensitive Sea Area designation to address the risks to marine areas that are ecologically vulnerable to international shipping.1473 The

1466 Memorandum of Understanding on Port State Control in the Black Sea Region (Black Sea MOU) 1 April 2000 the, amended 1 Jan. 2010. See www.bsmou.org/default2.htm. The BS MOU Headquarter Agreement for establishing the Black Sea MOU Secretariat in Istanbul was signed on 18 October 2003. 1467 See Bang, supra note 405, at 726. Ted McDorman, Regional Port State Control Agreements: Some Issues of International Law, 5 Ocean & Coastal L. J. 207–225 (2000). 1468 Reprinted in 21 ILM 1 (1982), available at http://www.parismou.org. For a review of port state control in the Black Sea see Oral, Oil Transportation in the Black sea and Regional Marine Environmental Policy, supra note 80. 1469 The Black Sea MOU first adopted the CIC inspection in 2004 and progressively implemented it for Living and Work Conditions in 2005, on Global Maritime Distress and Safety Systems (GMDSS) in 2006, on Marpol Annex I in 2006, on the International Safety Management Code (ISM) in 2007, on Safety of Navigation in 2008, on Lifeboat Launching Arrangements in 2009, and for Tanker Damage Stability Compliance as of 2010. See http://www.bsmou.org/default2.htm. 1470 Oral, supra note 80, at 148–151 (2005). 1471 Bang supra note 405, at 733. 1472 See Black Sea MOU website section “History” available at http://www.bsmou.org/default2 .htm. 1473 Julian Roberts, Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the Imo’s Particularly Sensitive Sea Area Concept (2007); Markus J. Kachel. Particularly Sensitive Sea Areas; The Imos Role in Pro- tecting Vulnerable Marine Areas (2008); Kristina M. Gjierde & David Freestone, Particularly Sensitive Sea Areas? An Important Environmental Concept at a Turning Point 9 Int’l J. Mar. & Vessel Source Pollution and Offshore Activities in the Black Sea 259

IMO defines a PSSA as “an area that needs special protection through action by IMO because of its significance for recognized ecological, socio-economic, or scientific attributes where such attributes may be vulnerable to damage by international shipping activities.”1474 In order to be designated as a PSSA by the IMO, an area proposed by a State or jointly by States must deserve protection based on ecological criteria; social, cultural, and economic criteria; or scientific and educational criteria.1475 In addition, when an area is designated as a PSSA by the IMO “associated protective measures” must also be approved or adopted by IMO to prevent, reduce, or eliminate the threat or identified vulnerability.1476 According to the IMO, such measures can include routing or reporting measures for ships,1477 discharge restrictions,1478 operational criteria, prohibited activities, and any other measures that are consistent with competence of the IMO and international law, including Article 211(6) of the 1982 LOSC which allows States to adopt special mandatory measures in their EEZ where international standards and rules are inadequate to protect an areas from vessel- source pollution.1479 However, the associated protective measures cannot constitute an unnecessary constraint on international shipping. For this reason, the IMO has

Coastal L. 431–468 (1994); Agustín Blanco-Bazán, 20 Mar. pol’y 343–349 (1996); Julian Roberts, Protecting Sensitive Marine Environments: The Role and Application of Ships’ Routeing Measures, 20 Int’l J. Mar.& Coastal L. 135–159 (2005); Julian Roberts, Martin Tsamenyi, Tim Workman, & Lindy Johnson, The Western European PSSA proposal: a “politically sensitive sea area”, 29 Mar. pol’y 431–440 (2005). 1474 IMO Res. A.720(17) Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas (1991); IMO Res. A.885(21) on “Procedures for the Identification of Particularly Sensitive Sea Areas and the Adoption of Associated Protective Measures” as amended by IMO Res. A.720(17) “Amendments to the Guidelines” as amended by IMO Res. A.982(24) on Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas (2005), revoking Annex II of Res. A.720(17). 1475 Id. 1476 Revised Guidelines for Designation of Particularly Sensitive Sea Areas Res. A.982 (24). 1477 Paragraph 6.1.2 of IMO Res. A.982(24) specifically lists adoption of ships’ routeing and reporting systems near or in the area, under the International Convention for the Safety of Life at Sea (SOLAS) and in accordance with the General Provisions on Ships’ Routeing and the Guidelines and Criteria for Ship Reporting Systems. For example, a PSSA may be designated as an area to be avoided or it may be protected by other ships’ routeing or reporting systems. 1478 Paragraph 6.1.1. of IMO Res. A.982(24) specifically lists designation of an area as a Special Area under MARPOL Annexes I, II or V, or a SOx emission control area under MARPOL Annex VI, or application of special discharge restrictions to vessels operating in a PSSA. 1479 Article 211(6)(a) provides in part that: Where the international rules and standards referred to in paragraph 1 are inadequate to meet special circumstances and coastal States have reasonable grounds for believing that a particular, clearly defined area of their respective exclusive economic zones is an area where the adoption of special mandatory measures for the prevention of pollution from vessels is required for recognized technical reasons in relation to its oceanographical and ecological conditions, as well as its utilization or the protection of its resources and the particular character of its traffic, the coastal States, after appropriate consultations through the competent international organization with any other States concerned, may, for that area, direct a communication to that organization, submitting scientific and technical evidence in support and information on necessary reception facilities. 260 Chapter VII opposed mandatory pilotage in the Torres Straits1480 and a ban on single-hull tankers in the Western European EEZs.1481 The growing recognition by States, particularly the EU following the Erika and Prestige accidents,1482 of PSSAs as an effective mechanism to protect vulnerable marine areas from harmful shipping activities has resulted in the designation of twelve PSSAs since 1990, including entire seas such as the Baltic Sea.1483

5.3 PSSA in the Black Sea The increase in maritime traffic, especially oil and oil products transported through the Black Sea coupled with the high level of ecological vulnerability to the risks of maritime traffic, including accidental and operational oil spills as well as the risk from invasive species brought by ballast water, should make the Black Sea an excellent candidate for designation as a PSSA by the IMO. The key issue will no doubt be the APMs that would need to be approved by the IMO and which cannot constitute unnecessary constraints on international shipping. Given the relatively compact size of the Black Sea, technological support from a region-wide vessel monitoring and information system could also be further developed as part of a PSSA.1484 The Baltic Sea provides an excellent precedent and model for the Black Sea and similar APMs s could be adopted for the Black Sea.1485

1480 The request for mandatory pilotage in the Torres Strait PSSA as an APM proved controversial and was not accepted by the IMO. See Julian Roberts, Compulsory Pilotage in International Straits, 37 Ocean Dev. & Int’l L. 93–112 (2006); Robert C. Beckman, PSSAs and Transit Passage – Australia’s Pilotage System in the Torres Strait Challenges the IMO and UNCLOS, 37 Ocean Dev. & Int’l L. 325–357 (2007). 1481 See Roberts et al., The Western European PSSA proposal: a “politically sensitive sea area”, supra 1473. 1482 For an excellent review of the EU support of the designation of the North Western Atlantic and the Baltic Sea as PSAA see See Markus Detjen, The Western European PSSA – Testing a unique international concept to protect imperilled marine ecosystems, 30 Mar. Pol’y 30 442–453(2006). 1483 Proposal made to designate the Baltic Sea as a PSSA found in IMO Doc. MEPC 51/8/1, submitted by Denmark, Estonia, Germany, Finland, Latvia, Lithuania, Poland and Sweden, 19.12.2003. The final decision excluded the Russian waters of the Baltic Sea. The controversy over the designation of the Baltic Sea as a PSSA resulted in a review of IMO Res. A.927 and the adoption of the revised Guidelines on designating a “particularly sensitive sea area” (PSSA) in IMO Res. A.982(24) Revised guidelines for the identification and designation of Particularly Sensitive Sea Areas (PSSAs). See Detjen, Id. 1484 See Robert Hofstee & Özkan Poyraz, Cooperation Between Vessel Traffic Services (VTS) in the Black Sea, in International Energy Policy, the Arctic and the Law of the Sea 157–188. (Myron H. Nordquist, John Norton Moore & Alexander S. Skaridov, eds., 2005). 1485 APMs adopted for the Baltic Sea PSSA include two new traffic separation schemes (TSS) in the Bornholmsgat and north of Rügen, one new inshore traffic zone was established in the TSS south of Gedser. In addition, a new deepwater route was established leading from the TSS in the Bornholmsgat to the Gulf of Finland. Along this deepwater route two areas to be avoided were also accepted – Norra Midsjöbanken and Hoburgsbank. See Olof Lindén, Aldo Chircop, Malek Pourzanjani, Jens-Uwe Schröder & Steve Raaymakers, PSSA in the Baltic Sea: present situation and future possibilities (Monograph, World Maritime University 2005). Vessel Source Pollution and Offshore Activities in the Black Sea 261

However, the PSSA needs to be considered and integrated within the broader and more holistic context of MSP in the Black Sea. The draft Black Sea ICZM Strategy and Action Plan lays the foundation for MSP in the Black Sea by recognizing the need to strengthen the integration of multi-sectoral activities using a legislative framework and special management instruments. Furthermore, “[i]n planning and management, land and sea should be considered as a non-separable unity.”1486 Oil and gas transportation provided by pipelines or seaborne tankers each pose specific and common risks to the marine and coastal environment. For example, the alignment of pipelines can pose special risks to the coastal and marine environment from factors such as leakage. Pipeline routes can also have a significant impact on the marine environment, especially if the selected route results in increased tanker traffic in coastal areas where sensitive ecosystems are found. The assessment of the potential impact of a pipeline should be considered together with its potential effect on shipping patterns, especially in areas that are environmentally sensitive because of existing marine life, habitat protection or other relevant factors. Such planning should not be restricted to localized environmental impact assessments, but should encompass an integrated regional environmental impact assessment that would assess the optimal route, that is the one that would have least negative impact on marine life and the ecosystem. Therefore, criteria for such a regional impact assessment should be developed to devise a holistic plan for the Black Sea that will minimize the risk of spills and discharges in sensitive areas and the risk of the introduction of invasive harmful species. An important tool will be in the choice of route and of ports, as well as in planning that takes into account the establishment of marine protected areas in the Black Sea, including PSSA designation under the auspices of the IMO. In addition, as demonstrated by the Prestige incident, the determination of places of refuge for ships in distress remains an important issue for safety of navigation and protection of the marine environment.1487 No regional initiative in the Black Sea exists for developing a set of agreed upon criteria for places of refuge as provided by the IMO Guidelines on Places of Refuge for Ships in Need of Assistance.1488 The emerging concept of marine spatial planning could be applied in the Black Sea or parts of it as a method to develop such a plan, especially in light of the increase in offshore and associated activities.1489

1486 Bucharest Convention on the Protection of the Black Sea against Pollution – Regional Black Sea Strategy for Integrated Coastal Zone Management 2004–2007 (version 4), available at http://www.blacksea-commission.org/_od-draft-biodiversity-strategy.asp. 1487 See Places of Refuge For Ships: Emerging Environmental Concerns of a Maritime Custom (Aldo Chircop and Olof Lindén eds., 2006). 1488 IMO Res. A.949 (23). 1489 See Oral, supra note 80. 262 Chapter VII

6. Discussion

Vessel-source pollution was recognized as an important risk to the Black Sea marine environment by both the 1996 Black Sea-TDA1490 and 2007 Black Sea-TDA.1491 The risks to the environment associated with accidental oil pollution were of particular concern because of the significant increase that was expected and that did occur in the volume of oil transported from the Caspian region across the Black Sea. The risks of accidental oil pollution have been further compounded by the increase in offshore oil activities in the Black Sea. In addition to oil pollution, the near collapse of the Black Sea anchovy fish stock during the 1980s because of the Mneiompsis leidy jelly fish introduced through ship ballast water underscored the pressing need for the Black Sea States to take regulatory measures on ballast water at the regional and national levels.1492 The current level of protection of the Black Sea marine environment from vessel source pollution can be gauged from two indices: the first is the degree of implementation by the Black Sea States of global instruments adopted by the IMO important for protection of the marine environment and the second is to compare how other regional seas, including the EU, are addressing vessel sources of pollution. Vessel-source pollution is essentially regulated at the global level in two parts: through standard setting and enforcement. Shipping standards are established through the adoption of conventions, protocols and other instruments, principally under the auspices of the IMO, which was implicitly recognized by the 1982 LOSC as the competent international organization. Furthermore, States are only required to ensure that their national laws and regulations based on flag State jurisdiction “have the same effect as generally accepted international rules and standards” adopted through the IMO. There is no requirement per se under the 1982 LOSC for the States to ratify specific IMO conventions. Nonetheless, States are still responsible for meeting these standards. Nevertheless, the level of State participation and percentage of world shipping tonnage reflect the degree to which the IMO instruments have been “generally accepted.” Moreover, under international law, as reflected in the 1982 LOSC, enforcement of shipping standards and obligations for the protection of the environment is principally the responsibility of the flag State.1493 However, in addition to flag State and coastal State enforcement jurisdiction, port state control has evolved into effective enforcement tool. At the global level, the MARPOL Convention 73/78 is the main IMO convention for the prevention of vessel source pollution.1494 Among the IMO instruments for protection of the marine environment without question, as shown in Table 16, the

1490 Supra note 40. 1491 Supra note 51. 1492 Supra note 289. 1493 1982 LOSC, supra note 19, Article 211(2). 1494 Supra note 465. Vessel Source Pollution and Offshore Activities in the Black Sea 263

MARPOL Convention 73/78 and its six annexes have the highest level of State participation and world shipping tonnage.1495 Annexes I and II are especially important for the Black Sea where during the past decade there has been a significant increase in oil transport. In this case, all six of the Black Sea States are Parties to Annex I–II and would be fulfilling their respective duties to apply generally accepted international standards and rules. Likewise, all six of the Black Sea States are Parties to Annex IV on garbage disposal at sea. However, some discrepancy remains with the Annexes on sewage, harmful bulk substances and air pollution. As part of its functions, it would be appropriate for the Black Sea Commission, most likely through the initiative of Bulgaria as the only Black Sea State to be a Party to all six annexes, to bring this discrepancy to the attention of the Black Sea States so that the necessary steps can be taken to accede to these annexes. As already mentioned the vulnerability of the Black Sea to harmful invasive species from ship ballast water the Black Sea States gives additional importance to the 2004 Ballast Water Convention. On the positive side the Black Sea States have been collaborating with the IMO through GloBallast in preparation for ratification of the Convention. Furthermore, given that the Black Sea Biodiversity and Landscape Pro- tocol has entered into effect, the States are required, pursuant to Article 5 of the Protocol, to take all appropriate measures to regulate intentional and prevent accidental introduction of non-indigenous that may have harmful impacts. The Black Sea States, through the Black Sea Commission, could appoint a ballast water task force composed of scientific, maritime and legal experts to devise a regional ballast water strategy as part of the implementation of the Ballast Water Convention following ratification. Regional standards, a common approach, possible use of spatial planning, and harmonization of sanctions to be imposed for violation of the ballast water exchange regulations should be part of the strategy. At the regional level HELCOM, OSPAR and the Mediterranean Sea provide examples of how multiple-state regional cooperation can be dynamic and responsive in adopting changes that take place in the global framework, to meeting specific regional needs as well as in creating individual regional approaches through different tools. Specifically, the Mediterranean Sea has updated its protocols on dumping and emergency oil pollution response in order to reflect developments in these areas, and has recently adopted a protocol regulating offshore activities. HELCOM and OSPAR have progressively developed their respective approaches through the use strategies and Commission decisions. In many ways the less formalistic approach may be preferable to the “hard law” approach as the former allows for greater flexibility and the ability to adapt quicker to changes and needs as they emerge. The “soft” law approach avoids lengthy time lags that inevitably occur between negotiation,

1495 See Table 16. 264 Chapter VII adoption and actual ratification of an instrument. This means that the substantive outcomes sought can be achieved in a shorter time framework. When compared against these three regional seas the Black Sea regional framework for the prevention, reduction and control of vessel sources of pollution appears weaker and needs to be strengthened. In particular, the Black Sea States need to adopt a specialized protocol for offshore activities given the increased level of offshore exploration for hydrocarbons in the Black Sea. The protocol could establish a set of strict standards for the operation and disposal of offshore installations. The Mediterranean Sea, HELCOM and OSPAR provide excellent examples of the standards and measures to be adopted. The Black Sea Commission, as part of its functions, should initiate the initial recommendations for the need to develop and adopt an offshore protocol. However, if the Black Sea Commission does not take this initiative, NGOs can play a galvanizing role in raising the issue. Furthermore, the existing Black Sea Emergency Protocol needs to be revised to include more preventive approach, similar to that adopted by the Mediterranean Sea in its 2004 Prevention and Emergency Protocol.1496 The Black Sea States could also consider developing a pollution emergency response center similar to that of REM- PEC, either independently or in conjunction with the Mediterranean Sea regional seas programme. The Black Sea States further need to strengthen detection and enforcement of illegal vessel discharges in the Black Sea. The Bonn Agreement and OSPAR developed North Sea Manual on Maritime Oil Pollution Offenses provide an excellent model to adopt in how to coordinate and co-operate in strengthening application of MARPOL 73/78.1497 The Black Sea States could also create a network of Black Sea investigators and prosecutors for an enhanced harmonization of regional detection and enforcement of illegal discharges in the Black Sea. Co-operation in policing of the Black sea could both significantly reduce the level of illegal discharges and make it cost-effective through pooled resources. The second component of regulating vessel source pollution is a critical part of ensuring the implementation of generally accepted international standards. Port state control has become a well-established and recognized mechanism for the enforcement of shipping standards. The adoption of the Black Sea Port State Control MOU in 2000 was an important step towards the protection, reduction and control of vessel source pollution.1498 Nonetheless, in comparing the Black Sea port state control with the more established Paris MOU it becomes evident that there a need to revise system to make it more effective in detecting and punishing vessels that fail port state control inspections. The collaboration between the Black Sea State Parties to the Black Sea MOU1499 and other MOU secretariats especially the Paris MOU1500 is

1496 Supra note 598. 1497 Supra note 1415. 1498 Supra note 1466. 1499 Id. 1500 Supra note 1468. Vessel Source Pollution and Offshore Activities in the Black Sea 265 a positive approach and should continue. The existing method of inspection needs to be strengthened with heightened inspection and stricter rules for denying entry of ships with multiple violations in Black Sea ports. In this aspect, the EU is well positioned to play a constructive role in advancing port state control measures in the Black Sea. The EU, through its two member States, Bulgaria and Romania, bring a proposal to revise the existing Black Sea Port State Control MOU. For example, the EC Black Sea Synergy Communication specifically included maritime activities within its scope of application.1501 Given the increase of shipping between the Black Sea and the EU, especially on account of oil transportation, the EU has a strong interest in promoting strong shipping standards in the Black Sea. Among the most important international regulatory tools to emerge for enhanced protection of the marine environment against vessel source pollution is the PSSA1502 and its associated protective measures.1503 The Black Sea recognized as one of the most unique seas in the world and with ample of scientific data available on its ecological vulnerability and maritime traffic should make it an excellent candidate for designation at the IMO as a PSSA. In practice, any one of the Black Sea States could submit a proposal to the IMO to have an area in its EEZ designated as a PSSA. However, there are advantages for the Black Sea States to make a joint regional submission to the IMO. For example, a joint regional approach would provide a more holistic and integrated approach in developing the PSSA and the appropriate APMs. The Black Sea States in preparing the proposal for a PSSA the Black Sea States could consider implementation of regional marine spatial planning and integrated coastal management principles that would provide for enhanced protection of migratory routes for Black Sea marine mammals that stretch across the Black Sea, and protection of marine habitat. Associated protective measures could include areas to be avoided, traffic separation schemes, mandatory ship reporting and VTS reporting, and if necessary mandatory pilotage. Another reason for making a regional proposal would allow the PSSA to include SECA areas,1504 like in the Baltic Sea,1505 as well as no-ballast exchange zones. A regional approach to developing a Black Sea PSSA could actually provide the Black Sea States with the opportunity to develop a holistic, integrated management for shipping and offshore activities plan for the entire sea. The push for the Black Sea States to propose a Black Sea PSSA to the IMO could come from the scientific academic community. A group of Black Sea universities could collaborate and obtain funding through the EU and prepare an initial report on the need for a PSSA in the Black Sea and bring this to the attention of the responsible governmental authorities. In addition, this information should be shared with

1501 Supra note 567. 1502 Supra note 1474. 1503 Supra note 1475. 1504 “Ship emission control areas.” 1505 See Table 12. 266 Chapter VII

Black sea NGOs, who in turn could bring the issue of a Black Sea PSSA before the Black Sea Commission and engage in public awareness activities. The Black Sea NGOs could also collaborate with international NGOs who have already worked on PSSA issues, such as the IUCN. In summary, the Black Sea States for the most part have ratified the IMO instruments constituting generally accepted international standards for the protection of the marine environment against pollution. However, in light of state practice in other regional seas that represent best legal practices, notably the Mediterranean, the HELCOM and OSPAR, the Black Sea States could further strengthen the existing regional framework for co-operation on vessel sources pollution by ratifying all IMO instruments, revising the current Black Sea Emergency Response Protocol, adopting a protocol on off-shore activities and a protocol on the transport of hazardous substances, strengthening Black Sea port state control, and consider designation of areas particularly vulnerable to shipping activities as PSSAs. Chapter VIII

Gaps, Lessons Learned and Recommendations

This study has undertaken a detailed review of the legal framework for regional co- operation for the protection of the Black Sea marine environment focusing on four main areas: biodiversity, fisheries, land based sources of pollution and vessel source pollution. This study has also examined the foundation of co-operation in international law and how international co-operation has been implemented at the regional level for protection of the marine environment, in particular through the UNEP regional seas programmes. At the same time, several regional seas programmes with progressive and robust legal framework, such as the Mediterranean Sea, the Baltic Sea, the North-East Atlantic, and the Wider Caribbean Region, were examined and compared with the existing Black Sea legal framework under the UNEP Regional Seas Programme. The picture that emerged for the Black Sea regional framework of co-operation for protection of the marine environment was mixed. On the positive side, during the twenty years since the Black Sea Regional Seas Programme was established under the auspices of UNEP a number of important legal instruments incorporating best legal practices, such as the Black Sea Biodiversity and Landscape Protocol, were adopted. However, on the negative side progress has been slow in the ratification and implementation of these instruments and also in developing new instruments and fulfilling commitments undertaken by the States. In addition to examining the effectiveness of the existing legal regime for cooperation in the Black Sea this study also provided a reflection on the effectiveness of the UNEP regional seas programmes in general. UNEP plays an important mobilizing role in the construction of regional seas programmes. The Black Sea, which in 1992 when UNEP established the Black Sea Regional Sea Programme was in a critical state of environmental degradation. While some improvements have been made in the regional legal framework, the influence of UNEP on developing the legal regime of the Black Sea has been weak.

1. The Black Sea Regional Regime

1.1 A Weak Legal Foundation of Co-operation In 1992, when the UNEP Regional Seas Programme for the Black Sea was established, there was an urgent need for action as well as a challenge for scientists, policy-makers, and lawmakers to save a sea that was on the brink of environmental collapse.

The task of bringing together six coastal States under a common environmental umbrella to establish a regional system of governance was a formidable undertaking given the historical backdrop of regional rivalry and political divergence. In one sense, however, history had made a full circle. In this region of centuries – old political discord laid the early seeds of regional co-operation that eventually evolved into Part IX of the 1982 LOSC for enclosed and semi-enclosed seas. The challenge faced in 1992 was whether regional co-operation could be sustained over a long-term that would reverse the environmental damages brought by the cold war decades. When the historic Convention on the Protection of the Black Sea against Pol- lution was adopted in 1992 (Bucharest Convention),1506 just two months before the 1992 United Nations Conference on the Environment and Development (UNCED),1507 it laid the foundation for a weak and inadequate legal framework for regional co-operation to address the multiple risks and challenges to the Black Sea marine environment. For example, the Bucharest Convention did not include any of the emerging principles and approaches of international environmental law that were among the key outcomes of the Rio Declaration and Chapter 17 of Agenda 21. At the time, the Bucharest Convention was drafted principally with the aim of preventing pollution and made no reference to other non-pollution based threats to the marine ecosystem. In particular, there were no provisions for the protection of biodiversity. While this important gap was partially addressed by the 1993 Odessa Declaration1508 and the 1996 Black Sea-SAP1509 and 2009 Black Sea-SAP,1510 nevertheless, these instruments did not provide the overarching legal reach that lies at the very core of a framework convention. This inherent weakness in the regional framework was identified early on in the seminal 1996 Black Sea-TDA, which found that the weak legal framework was one of the major causes of environmental degradation in the Black Sea.1511 This same view was echoed a decade later in the 2007 Black Sea-TDA.1512 Ideally, the action that the Black Sea States should take to remedy this legal gap is to amend the Bucharest Convention so that it is realigned to meet the standards of current best legal practices as reflected in the Rio Declaration, Agenda 21 and other instruments including the practice of other regional seas that were examined in this study. For example, the State Parties to the 1976 Barcelona Convention for the Mediterranean Sea amended and updated the anachronistic first generation Convention.1513 In this regard, the UNEP could play a much more active role in insti-

1506 Supra note 32. 1507 Supra note 54. 1508 Supra note 501. 1509 Supra note 51. 1510 Supra note 42. 1511 Supra note 40. 1512 Supra note 1. 1513 Supra note 512. Gaps, Lessons Learned and Recommendations 269 gating the necessary actions to improve the governance framework in its Regional Seas Programme. UNEP could organize workshops in the Black Sea with the participation of legal experts, Black Sea policy makers and governmental representatives to exchange views and begin to develop the necessary discussion for initiating the legal process. The legal division of UNEP could be actively engaged with the different regional seas programmes, including the Black Sea. For example, a joint committee of UNEP and regional seas legal experts could be established. Together with regional experts UNEP could engage in regular training, information exchange and legal capacity building. This would promote strengthening regional and local legal capacity. The key is to establish a systematic approach that provides continuity between the UNEP and the Regional Seas Programme, especially those that are not directly administered by UNEP.1514 Another recommendation is for the Black Sea Commission to consider establishing a permanent Black Sea Legal Advisory Group which could be responsible for conducting the necessary technical work on legal developments and advise the Black Sea Commission on what actions may be needed, such as revisions to the existing regional framework or the adoption of new instruments. The functions of such a Legal Advisory Group could also include providing the necessary legal support to ensure the harmonized and consistent implementation of international or regional obligations in the Black Sea. The Legal Advisory Group should consist of independent non-governmental legal experts and governmental experts. The independent experts ideally would provide legal views free from potential governmental pressures, and the governmental experts would be in a position to communicate the work of the Legal Advisory Group to the relevant decision-making authorities in each government.

2. Fulfilling Legal Duties and Commitments

This study also examined in detail the duty of States under international law to co- operate for the protection of the marine environment under global and regional instruments. The UNEP Regional Seas Programme provides the modality by which States are able to implement their duty to co-operate. In the case of the Black Sea the six coastal States are fulfilling their duty to co-operate through the Black Sea Regional Sea Programme and the legal framework provided by the Bucharest Con- vention and its implementing protocols. However, the review conducted of the major global instruments relevant for the protection of the marine and coastal environment, such as the early international conservation agreements (ICA) and the 1992

1514 For example, the Mediterranean Sea Programme is directly administered by UNEP but not the Black Sea. 270 Chapter VIII

Convention on Biological Diversity (CBD) 1515 revealed a lack of a general duty for States to protect the marine environment. Only the 1982 LOSC created an overarching and unqualified duty to protect the marine environment under article 192 and to protect rare and fragile ecosystems in article 194(5).1516 Instead, the early ICAs and the 1992 CBD provided specific measures to be taken for the protection of the environment and its flora and fauna. These measures included establishing wetlands of international importance under the Ramsar Wetlands Convention,1517 regulating international trade in endangered or threatened species under CITES,1518 adopting transboundary AGREEMENTS for migratory species under the Bonn Convention,1519 and establishing marine protected areas under the 1992 CBD, or identifying natural and cultural heritage of outstanding universal protection under the World Heritage Convention.1520 The implementation of these ICAs could be considered to constitute the minimum standard in fulfilling the obligation to protect the marine environment and rare and fragile ecosystems as required under the 1982 LOSC and customary international law. Even though the 1982 LOSC was adopted subsequent to some of the ICAs, as they are still in application these ICAs remain relevant in providing the specific measures and standards for protecting the environment. And as the six Black Sea States are parties to almost all of the major ICAs and the 1992 CBD, they would appear to have met at least the minimum requirements of the duty to protect the marine environment under the global framework. Furthermore, at the regional level Article V(2) of the 1992 Bucharest Conven- tion requires the Black Sea States to take all necessary measures to reduce, control and prevent pollution of the Black Sea in order to protect the marine environment. Notwithstanding the prominent focus on pollution in the Bucharest Convention, Arti- cle XV(1) appears to broaden the duty by holding the Black Sea States responsible to fulfill their international obligations for the protection of the marine environment— without limiting this to “pollution.” So, while it does not create a new duty, by incorporation by reference Article XV(1) it does implicitly impose a duty on the Black Sea States to fulfill their international obligations under the 1982 LOSC, the ICAs, the 1992 CBD and customary international law. In addition to the Bucharest Convention the Black Sea States undertook important binding commitments in other regional instruments. Important at the time, in signing the 1996 Black Sea-SAP the six Black Sea States had agreed to take specific actions within set time limits. These commitments included adopting legal instruments for the protection of biodiversity, sustainable fisheries and offshore activities.

1515 Supra note 55. 1516 Supra note 924. 1517 Supra note 712. 1518 Supra note 715. 1519 Supra note 714. 1520 Supra note 713. Gaps, Lessons Learned and Recommendations 271

Priority was also to be given to addressing the risk posed by invasive species as highlighted in the past near-calamitous impact of Mnemiopsis leidyi on Black Sea fisheries.1521 However, by 2002 when it became clear that most of the commitments undertaken under the 1996 Black Sea-SAP were unfulfilled the Black Sea States simply amended the SAP with new dates.1522 It should be noted that the lack of action in fulfilling commitments by the Black Sea States was not because of a lack of finances. To the contrary, the GEF and the EU had made significant resources available to the Black Sea Regional Seas Programme. Indeed, the 1993 Odessa Declaration served to generate significant funding from the GEF to enable the Black Sea States to fulfill their commitments. The basic assessment made was the conclusion in the 2009 Black Sea-SAP that the commitments had been too ambitious.1523 The failure of the Black Sea States to fulfill their commitments constituted a failure to meet their obligations under the Bucharest Convention, which required that the Black Sea States take all the necessary measures to prevent, reduce and control pollution.1524 Moreover, the failure of the Black Sea States to meet their initial commitments under the 1996 Black Sea-SAP can also be viewed as a failure of the Black Sea States to meet their obligations under international law for protection of the marine environment. The actions to be taken under the 1996 Black Sea-SAP were deemed to be necessary for the protection of the Black Sea marine environment. And while the 2007 found some signs of environmental improvement in the Black Sea, this was attributed more to externalities independent of the Black Sea regional regime, such as reduced nutrient in-put from the Danube River, the accidental eradication of the Mnemiopsis leidyi,1525 and the economic downturn leading to the closing of polluting factories in the Black Sea countries. In this regard the failure of the Black Sea States to meet their regional commitments can be viewed as a failure to meet their overall obligation to protect the marine environment under the 1982 LOSC and customary international law to protect the marine environment as codified in article 192 of the 1982 LOSC.1526 In which case, the question is what, if any, legal actions can be taken against the Black Sea States to compel compliance with commitments? One option would be for one of the Black Sea States to institute a legal proceed- ing under the compulsory dispute provisions of Part XV of the 1982 LOSC1527 against those Black Sea States in breach of their international law obligations. However, there are limitations to this option. First, as a non-Party to the 1982 LOSC, Turkey would not be subject to the compulsory jurisdiction provisions. Second, in the case

1521 Supra note 289. 1522 See Table 9. 1523 Supra note 42, at 2. 1524 Article V. 1525 Supra note 289. 1526 Supra notes 763–64. 1527 Supra note 498. 272 Chapter VIII when all six Black Sea States are in violation of their obligations under the 1982 LOSC, which State would bring such an action? And even in the case where one Black Sea State may be legally entitled to bring an action under Part XV, for political reasons the State may choose not to. One possibility, however, may lie with the EU, which is a Party to the 1982 LOSC. 1528 Bulgaria and Romania as EU member States the EU would be in a position to bring a legal action under Part XV of the 1982 LOSC against the Black Sea States with the exception of Turkey. A third limitation is in relation to fisheries, which is one of the most important economic activities in the Black Sea. A legal action against the Black Sea States for their failure to adopt and implement the draft LBD would not possible under Part XV of the LOSC which expressly excludes fisheries disputes that occur in the EEZ of the Parties.1529 Another possible legal option may be available under the dispute settlement provision of the Bucharest Convention.1530 Broadly speaking, the Black Sea States have failed in meeting their legal commitments at two levels. The first level of failure is the complete inaction of the Black Sea States in meeting obligations under the Bucha- rest Convention. The second level is the partial inaction of the Black Sea States who have adopted protocols or measures but have not implemented them. The Bucharest Convention specifically provides in Article V(2) that Parties have the obligation to take “all necessary measures consistent with international law and in accordance with the provisions of this Convention to prevent, reduce and control pollution thereof in order to protect and preserve the marine environment of the Black Sea.” Furthermore, under Article XVI(1) the Black Sea State Parties must also fulfill their responsibilities under international law for protection of the marine environment. This provision broadens the duty of protection of the Black Sea beyond pollution activities only if linked to another obligation under international law, such as an international agreement or even customary international law. In which case, non-polluting activities and risks would be incorporated by reference under this provision, such as the protection of biodiversity against non-polluting but harmful human activities. A key element in the duty created in Article V(2) is the requirement for the Black Sea States to take “all necessary measures. . . .” One source for defining what would constitute “necessary measures” for purposes of article V(2) can be found in the scientific transboundary studies undertaken and published in the 1996 and the 2007, which served as the scientific foundation for the 1996 and 2009 SAPs that were adopted and signed at the Ministerial levels. The commitments made in the 1996 and 2009 Black Sea -SAPs, which were binding upon the Parties, included “necessary measures.” Included among the necessary measures was the strengthening of the legal framework for cooperation among the six Black Sea States through

1528 The EU ratified the 1982 LOSC on 1 Apr. 1998. 1529 Supra note 1120. 1530 Supra note 32. Gaps, Lessons Learned and Recommendations 273 the adoption of specific instruments, such as a biodiversity protocol and a regional agreement for fisheries. In addition, decisions adopted by the Black Sea Commission that are deemed to be “necessary for achieving the aims of the Convention”1531 would arguably also fall within the ambit of Article V(2). There is a strong argument to be made that such Commission decisions are in fact binding, similar to that of the OSPAR Commission.1532 This is significant for purposes of compliance, as will be discussed further on. The failure, therefore, of the Black Sea States to adopt and implement a protocol or decision of the Black Sea Commission which has been identified as being a “necessary measure” would constitute a violation of the Bucharest Convention and create standing for one of the Black Sea State Parties to bring an action under the dispute settlement provision of the Convention. However, this option also has limitations. Upon close examination of the language of the Article XXV the only obligation in the case of a dispute on the interpretation and implementation of the Convention is that the Parties shall seek settlement through negotiations or other means of their choice. What is missing is language that would make the outcome of the settlement binding. Consequently, in practice the dispute settlement provision under the Bucharest Convention lacks adequate deterrence force that would create an incentive for Black States to fulfill their obligations. It is therefore unlikely that any Black Sea State would use this provision as a method to compel the Black Sea State into compliance with their commitments. The challenge of state implementation and compliance with obligations under environmental agreements is not unique to the Black Sea. Compliance mechanisms were developed precisely to seek a non-confrontational and facilitative approach to engender greater state compliance with legal obligations in international environmental agreements. The limited nature of legal options available to compel the Black Sea States to comply with their commitments highlights both a gap in the existing regional legal framework and the need for an alternative mechanism, such as a compliance mechanism. Among the different regional sea programmes only OSPAR and the Mediterranean region have established a compliance mechanism.1533 How- ever, there are several examples of compliance mechanisms under global conventions. The common objective shared by these compliance mechanisms is to create a system where implementation problems are identified early and devise appropriate responsive measures to address the underlying causes. In some cases, such as in the Kyoto Protocol,1534 the compliance mechanism includes an enforcement element that allows for punitive action. One of the more innovative approaches for

1531 Article 18. 1532 Supra note 649. 1533 OSPAR see Id.; Mediterranean Sea see supra note 606. 1534 Supra note 670. 274 Chapter VIII

compliance mechanisms is to include public participation as is done under the Aarhus Convention, which allows the public to bring complaints.1535 The Black Sea Regional Seas Programme would greatly benefit from a regional compliance mechanism. In many cases, the lack of action on the part of all or a certain of the Black Sea States may be due to technical or financial reasons that may be easily addressed. Early detection of problems is one of the strengths of a compliance mechanism. This would minimize the problem of years of inaction that operates to the detriment of the ecological well-being of the Black Sea marine environment. The Black Sea compliance mechanism should also allow for public participation, which would enhance the implementation of commitments by the Black Sea States. The public, through for example the activities of NGOs and universities, can exert a positive influence in securing greater compliance by the Black Sea States with both regional and international obligations for the protection of the marine environment. A positive development in the Black Sea has been the progressive strengthening of Black Sea NGOs through the training and financial support provided by various agencies but in particular the GEF and the EU. The Network of Black Sea NGOs with observer status at the Black Sea Commission has vocalized important issues, such as the question of the accession of the EU to the Bucharest Convention.1536 But more could be done in raising public awareness, and lobbying the individual governments and ministries of the Black Sea States to fulfill commitments. And as stated above, allowing for public participation in the compliance mechanism can bring about a better implementation of commitments and obligations. The public, especially NGOs, with broader exposure to activities may often be in a better position to monitor and report violations or problems than governmental officials. In fact, compliance mechanisms should be made a mandatory part of the governance framework for all the UNEP Regional Seas Programmes. In this regard, the UNEP should initiate action through consultation with the different regional seas programmes in developing a standardized compliance mechanism representing best legal practices. UNEP, which has already worked on compliance issues, could focus on the regional seas programmes and support workshops on compliance.

3. Sectoral Activities

3.1 Biodiversity The need for a separate protocol to protect biodiversity in the Black Sea was identified in the 1996 Black Sea-TDA.1537 In response, under the 1996 Black Sea-SAP the Black Sea Parties had committed to adopting a protocol for the protection of

1535 Supra note 665. 1536 Supra note 32. 1537 Supra note 50. Gaps, Lessons Learned and Recommendations 275 biodiversity by the year 2000.1538 In 2002 the Black Sea States adopted the Black Sea Biodiversity and Landscape Protocol that came into effect nearly a decade later in 2011.1539 When the Protocol is fully implemented it will fill most of the legal gaps in the existing governance regime for the protection of marine biodiversity in the Black Sea. Having incorporated the key principles of modern international environmental law, in particular the requirement for the establishment of a network of marine protected areas the Protocol represents best legal practice for international environmental law. One of the longstanding gaps in the Black Sea has been for the establishment of a network of marine protected areas, especially transboundary or shared ones. Although, in fairness to the Black Sea States, the international community as a whole has lagged in meeting goals set under the 1992 CBD 2002 Strategic Plan for establishing a network of comprehensive, effectively managed and ecologically comprehensive network of marine protected areas.1540 In a similar response to that taken by the Black Sea States when they failed to meet the target dates in the 1992 Black Sea-SAP, the international community extended the date for establishing a network of marine protected areas to 2020 from the original 2012 with the Aichi Biodiversity Targets adopted in 2010.1541 In addition, the Aichi Biodiversity Targets added a target of a conserving a minimum of ten percent of all marine and coastal areas.1542 Given that all six Black Sea States are Parties to the 1992 CBD the Aichi Targets would be applicable in the Black Sea and would need to be integrated into the new Black Sea Biodiversity Strategy. From a practical perspective because of the significant overlap among the different instruments on biodiversity protection (i.e. the 1992 CBD and relevant COP decisions, the new Black Sea Biodiversity Protocol and the ACCOBAMS AGREEMENT), implementation of the Black Sea Biodiversity and Landscape Protocol would thereby fulfill both international commitments and regional commitments.

4. Fisheries

In regard to conservation of Black Sea fish stock, the lack of a regional fisheries agreement for implementing sustainable fisheries management is one of the more egregious gaps in the Black Sea regional regime. Under international law, as codified by the 1982 LOSC and customary international law, there is distinct duty for States to co-operate in the management of shared fish stock. The 1959 Varna Sea Fisheries Convention does not fulfill the duty to co-operate in the Black Sea as it does not

1538 Supra note 869. 1539 Supra note 60. 1540 Supra note 787. 1541 Supra note 789. 1542 Supra note 790. 276 Chapter VIII include all of the Black Sea States.1543 Moreover, it is for all practical purposes a defunct instrument. This is reflected in the noticeable absence of any mention of it in any of the Black Sea-TDAs and SAPs. In the 1990s a draft Black Sea fisheries agreement had been prepared and given the legally non-descriptive title of the Draft Legally Binding Document (LBD).1544 However, despite the well documented need for a regional legal framework for fisheries management the Black Sea States have yet to adopt the LBD. While the failure for adopting and implementing a modern regional fisheries agreement lies principally at the feet of the six Black Sea States, it also reflects a gap in the international legal system. There is no global instrument for shared fish stock as defined under article 63(1) of the 1982 LOSC, comparable to the 1995 FSA for straddling and highly migratory fish stock. Such an international framework could provide a mechanism to promote implementation of an effective regional fisheries management system in the Black Sea. For example, the Secretariat of an international convention is able to take steps to promote ratification or accession by non-Party States as well as to provide support to State Parties in the implementation of their obligations under the instrument. Another possible reason contributing to the failure of action on the part of the Black Sea States may also be attributed to the exclusion of fisheries from the UNEP Regional Seas Programme. However, UNEP has not been a strong factor in promoting adoption and implementation of commitments in the Black Sea. On the positive side, when the draft LBD is adopted and ratified by the Black Sea States it will provide the much-needed regional framework for management of shared fish stock in the Black Sea. It includes the key principles of best environmental practices, a provision for establishing a fisheries fund and an important provision for establishing a compliance mechanism. However, the definition of the precautionary principle should be revised and made to be consistent with the definition adopted in other international instruments as well with the definition adopted in the 1996 and 2009 Black Sea-SAPs. The revision should be made before the draft LBD is formally adopted. Afterwards, the legal requirements of amending the instrument will be more arduous and time consuming. The key challenge lies in pushing the Black Sea States to adopt and implement the draft LBD. As stated earlier, the compulsory dispute settlement provisions of Part XV of the 1982 LOSC do not apply to fisheries within the EEZ of State Parties. For this reason, the legal options available under the 1982 LOSC, even if there was a State willing to bring one, are closed. The Bucharest Convention with its limited focus on pollution prevention also fails to provide an adequate legal means to compel the Black Sea States to adopt the draft LBD. While there is a possible argument that the duty to cooperate in the management of marine living resources as provided in the 1982 LOSC has been incorporated implicitly by Article XVI(1) of the Bucharest

1543 Supra note 435. 1544 Supra note 1032. Gaps, Lessons Learned and Recommendations 277

Convention as an international obligation which the Black Sea States are responsible to fulfill, the lack of compulsory force of the dispute settlement provision of the Bucharest Convention renders this option nugatory. The public, in particular NGOs, once again, can be the galvanizing force to pressure the Black Sea States to take the final steps of adopting and ratifying the draft LBD. This can be done by direct lobbying of the individual governments. Moreover, the role of NGOs is not limited to influencing the government. There are examples of successful partnerships between NGOs and fishery interests, such as the Marine Stewardship Council1545 and the Environmental Defense Fund. Similar partnerships could be developed in the Black Sea between NGOs and fisheries interests. Likewise, NGOs can also influence consumer behavior through awareness-raising campaigns on sustainable fish stocks, educating the public and through partnerships with the sector private, such as restaurants and food stores. Ultimately, the EU stands as the key entity with the actual ability to influence and pressure the Black Sea States into adopting and ratifying the draft LBD. The EU has a direct interest given its exclusive competence over fisheries, as a result of which Bulgarian and Romanian competence has been subsumed by the EU. For this reason, the EU is in the best position to instigate political action for adoption of the draft LBD. The EU can use its political influence through bilateral or multilateral dialogue, initiating and sponsoring workshops either directly or through NGOs and universities, and also using the carrot of financial incentives. The EU can provide Bulgaria and Romania funding through the European Fisheries Fund and for the non-EU Black Sea States, including Turkey, access funding through the Black Sea Synergy policy, which included fisheries.1546 The EU may conclude separate fisheries agreements with the non-EU Black Sea States as it has done under the Northern Agreements with Denmark, Iceland and the Faroe Islands for joint-management of stocks.1547 Lastly, one other option available for the Black Sea States to meet their duty to co- operate in the management of shared fish stock is for expanded membership to the General Fisheries Management for the Mediterranean (GFCM), a well-established regional fisheries management organization covering both the Mediterranean Sea and the Black Sea.1548 The GFCM provides all the necessary regulatory and institutional tools for sustainable fisheries management in the Black Sea. As Turkey, Bulgaria and Romania are already members efforts would only be required to convince Georgia, Ukraine and Russia to join. Turkey could convince Georgia, Bulgaria or Romania Ukraine after which Russia might be more interested in joining.

1545 Supra note 1062. 1546 Supra note 567. 1547 Supra note 1104. 1548 Supra note 1067. 278 Chapter VIII

Even without the draft LBD or other fisheries agreement the Black Sea States can still promote sustainable fishing practices by preventing IUU fishing in the Black Sea through expanding the Black Sea port state control system to include fishing vessels and monitoring activities. The Black Sea States can introduce requirements that fishing vessels in the Black Sea be equipped with Automated Information Systems (AIS) and Long Range Tracking (LRIT) which can be monitored with the existing vessel traffic monitoring systems in the Black Sea. For example, the GFCM has already mandated tougher port state control measures for monitoring IUU fishing and the use of electronic surveillance.1549 Given the membership of three Black Sea States in the GFCM expansion of this system to the entire Black Sea would not be difficult. Furthermore, co-operation in enforcement could be achieved through the use of the Black Sea. For or by a regional agreement of co-operation among Black Sea law coast guards or similar maritime law enforcement agencies.

5. Land-based Sources of Pollution

Land-based sources of pollution constitute the single greatest source of pollution in the Black Sea and of the marine environment in general. Even though land-based pollution is recognized as the single largest source of pollution of the marine environment, there is no overarching binding global instrument that provides detailed obligations and standards. The 1982 LOSC is the only binding global instrument that addresses land-based pollution. However, the scope of 1982 LOSC is limited and only obliges States to take national legal measures to combat land-based sources of pollution; it does not create a set of international standards or provide for measures to be taken for co-operation in addressing land-based sources of pollution. Further- more, the 1982 LOSC only exhorts States to endeavor to harmonize their national polices at the regional level. The only global instrument of a comprehensive nature for land-based pollution is the non-binding 1995 Montreal Guidelines.1550 It provides the key principles and approaches for combating land-based sources of pollution. Importantly, the 1995 GPA underscores the role of regional co-operation.1551 The existing Black Sea regional framework includes a protocol on land-based sources that was adopted together with the Bucharest Convention in 1992.1552 How- ever, as a first-generation protocol it did not reflect the modern principles or management approaches adopted in Agenda 21 or the 1995 GPA. The 2009 revised Protocol on Land-based Sources of Pollution, adopted in 2009, on the other hand does fill in many of the legal gaps found in the 1992 Protocol. However, in the 2009 revised LBS Protocol was not yet in effect in 2012. However, once ratified the revised

1549 Supra note 1071. 1550 Supra note 1152. 1551 Supra note 1163. 1552 Supra note 32. Gaps, Lessons Learned and Recommendations 279

Black Sea-LBS Protocol will provide the Black Sea with a second generation instrument reflecting best legal practices for addressing land-based pollution and may also serve as a model for other regional seas. The 2009 revised Black Sea-LBS Protocol contains important provisions requiring regional co-operation in activities such as conducting environmental impact assessments and strategic impact assessments, the latter reflecting the progressive approach of the Strategic Impact Assessment Protocol (SEA)1553 to the Espoo Con- vention on Environmental Impact Assessment.1554 The 2009 revised Black Sea-LBS Protocol is also the only regional protocol to include a provision on liability and compensation, and also mandates the Parties to establish a non-confrontational compliance mechanism. While the revised Black Sea-LBS Protocol opens the door for greater public participation this could be further strengthened along the model provided in the OSPAR Convention.1555 Without question, the jewel-in-the-crown for the Black Sea program on addressing land-based sources of pollution has been the inter-regional co-operation with the Danube River Basin countries by the Black Sea Commission and the International Commission for Protection of the Danube River ICPDR under the GEF funded Black Sea Ecosystem Recovery Project (BSERP).1556 It has been hailed as a model for inter- regional cooperation in transboundary pollution. According to reports, project had succeeded in producing the greatest demonstrable improvement in water quality and ecosystem improvement in a large river and adjacent sea.1557 However, much of the success appears attributable to the Danube River part of the project than the Black Sea. In fairness, an important outcome of the BSERP was the adoption of the revised LBS Protocol and the joint DABLAS initiative which generated valuable projects for the Danube River and Black Sea. The EU was impressed enough to consider adopting the DABLAS approach in other areas. While the BSERP was deemed successful in bringing about improved water quality, it was unsuccessful in other areas. A key gap among the outcomes produced by BSERP was its failure to include compliance or implementation as part of the outcomes of the project. In other words, the project was limited to constructing an edifice without ensuring its functionality. BSERP was much more than a project to reduce nutrient input to the Black Sea. For fifteen years it funded the operationalization of the Black Sea Regional Seas Programme, establishing and supporting the Secretariat, providing capacity-building support, funding four scientific cruises that laid the scientific basis for the 1996 and 2007 Black Sea Transboundary Analysis, funding the preparation of the 1996 and 2009 Black Sea Strategic Action Plans, supported NGO development and more. Yet, in fifteen years and after investing millions

1553 Supra note 1283. 1554 Supra note 1284. 1555 Supra note 646. 1556 Supra note 525. 1557 Supra note 1299. 280 Chapter VIII of dollars, when the project ended in 2008 the overall review of the governance structure for the Black Sea was negative. There are lessons to be learned from the BSERP experience in the Black Sea. First, as far back as 1996 the weakness in the overall legal framework for regional co-operation in the Black Sea for protection and preservation of the marine environment had been pointed out, yet since then very little was done to address this critical problem. Most of the activities undertaken by the Black Sea Commission and the Permanent Secretariat have been scientifically oriented with little focus on improving governance. The 2007 Black Sea-TDA and the BSERP sponsored legal and institutional analysis completed in 2008 both came to the very same conclusion. In over a decade little in the overall governance structure had really changed. In the coming years, in order to achieve the ultimate aim of restoring the Black Sea to its environmental status of the 1960s,1558 the Black Sea Regional Seas Programme will need continued funding from the GEF and other public sources, especially the EU. In terms of governance, one of the advantages of the Black Sea should be the relatively small number of States that make up the regional legal framework for co- operation, unlike the Mediterranean Sea with some twenty States. Consequently, if all six Black Sea States have adopted an instrument, this should mean that they have agreed to its contents and are prepared to implement it. In other words, there should be no legal or political reason preventing speedy ratification of the instrument. Whereas, experience from the past two decades show an inexplicable lethargy among the Black Sea States in meeting commitments, including speedy ratification of adopted instruments. This is an issue that should be taken into account by funding agencies operating in the Black Sea. International funding agencies should consider modalities by which to bring about ratification of instruments that are an outcome of financed projects, such as the draft Black Sea LBD or Biodiversity and Landscape Protocol. Furthermore, the BSERP, specifically, should have included a compliance mechanism as an outcome for each of the projects funded or establish a single mechanism for the Black Sea Bucharest system.

6. Vessel Source Pollution

Vessel source pollution, while not the principal source of pollution in the Black Sea, continues to be a risk. Especially since 1992 the Black Sea has become a strategic transport route for oil and oil products and a potential new source of offshore hydrocarbon resources. This has increased the risks such as from operational and accidental pollution, as well for the introduction of harmful invasive species through the exchange of ship ballast water. In addition, the increase in offshore oil activities

1558 Supra note 519. Gaps, Lessons Learned and Recommendations 281 in the Black Sea raises alarm for the possibility of a major oil spill like the Gulf of Mexico disaster.1559 International shipping is regulated at the global level. Specifically, the 1982 LOSC requires that States ensure that vessels flying under their flag comply with the applicable international standards, understood to mean those that are adopted by the International Maritime Organization (IMO).1560 This means that all States must ensure that their ships meet international standards. In relation to the Black Sea, a simple gauge of assessing the level of compliance of Black Sea States in implementing IMO standards is reviewing the degree of ratification of IMO instruments on pollution prevention. The key IMO Conventions for the protection of the marine environment against vessel source pollution are the MARPOL 73/78 and its six annexes,1561 the 1972 London Convention,1562 as amended by the 1996 Protocol,1563 the 1990 OPRC,1564 the 69/92/2000 CLC1565 and 71/92 Fund1566 instruments for liability and compensation, and the recently adopted 2004 Ballast Water Convention.1567 Given the volume of sea-borne oil transportation in the Black Sea without question Annexes I and II of the MARPOL 73/78 Convention are important for the Black Sea. In this case all six Black Sea States have ratified MARPOL 73/78 and Annexes I–II. In addition, except for Ukraine the Black Sea States have ratified at least one of the liability and compensation conventions. Ukraine has not become a party to any of the FUND instruments for compensation. Consequently except for Ukraine the remaining Black Sea State Parties to the 1982 LOSC have fulfilled the requirement under article 235 to provide for recourse for prompt and adequate compensation. While there is no internationally accepted determination of what would constitute “adequate” compensation, at the regional level article XVI (4) of the Bucharest Convention requires harmonization of national laws on liability and compensation in order to ensure adequate compensation to victims and to provide the greatest deterrence to polluting activities. This means that in relation to ensuring adequate compensation all six Black Sea States should provide the same level of financial relief to victims of oil pollution. An integral aspect of the transport of oil and other hazardous cargo at sea involves emergency response and preparedness measures in the case of an accident. In 1992 the Black Sea States adopted the Emergency Protocol, which provides a minimal legal framework of co-operation among the States in the case of an oil pollution incident in the Black Sea. Whereas, a review of developments in other regions, such

1559 Supra note 83. 1560 Supra note 1347. 1561 Supra note 1354. 1562 Supra note 1363. 1563 Supra note 1364. 1564 Supra note 466. 1565 Supra note 1360. 1566 Supra note 1361. 1567 Supra note 1365. 282 Chapter VIII as the Mediterranean, HELCOM, OSPAR and the EU show examples of advancements made which would constitute best legal practices. One key aspect found in the Mediterranean is REMPEC, a center dedicated to promoting co-operation in the prevention of oil pollution as well as providing capacity building and training.1568 The close geographic and ecological nexus between the Black Sea and the Mediter- ranean make the two regions natural partners in REMPEC activities. In this case, the Mediterranean Regional Sea Programme, through UNEP and REMPEC could actively engage the Black Sea Commission and Permanent Secretariat to provide support in developing an updated Emergency Protocol along the model provided by the Medi- terranean Sea Emergency Protocol. In regard to regulating dumping activities at sea the Black Sea States appear to have fulfilled at least the minimum standard by ratifying the 1976 London Conven- tion. However, ideally to reflect best legal practices all six of the Black Sea States should also ratify the 1996 Protocol,1569 which instituted progressive approaches, such as the reverse listing approach.1570 Given that only the two EU member Black Sea States Bulgaria and Romania have ratified the 1996 Protocol, they should take the initiative to bring up the matter of ratification of the 1996 Protocol by all Black Sea States before the Black Sea Commission. The functions of the Black Sea Com- mission includes making recommendations of measures necessary for achieving the aims of the Convention and also promoting the adoption by the Parties of additional measures needed to protect the marine environment.1571 The EU can also provide further support as necessary to encourage the remaining four Black Sea States to accede to the 1996 Protocol to the London Dumping Convention. The single most significant gap in the Black Sea legal framework for preventing vessel source pollution is the lack of an off-shore protocol regulating off-shore oil exploration and exploitation activities. Once again, the neighboring Mediterranean Sea provides the best model and potential partner for the Black Sea in developing a protocol for regulating off-shore activities in the Black Sea. In this case the Black Sea Commission, as part of its function to promote the adoption of necessary measures for the protection of the marine environment. In light of the Gulf of Mexico disaster with off-shore drilling activities, Black Sea NGOs and other stakeholders such as the fisheries community could also exert significant public pressure on the Black Sea States to adopt strict regional standards for off-shore oil activities. Likewise, the Black Sea States have not fulfilled their commitment to adopt a protocol on the transport of hazardous substances and illegal trafficking. This commitment was made at the time of the adoption of the 1992 Bucharest Convention,1572

1568 Supra note 1386. 1569 Supra note 1364. 1570 Supra note 1383. 1571 Article 18 of the Bucharest Convention. 1572 Supra note 483. Gaps, Lessons Learned and Recommendations 283 the 1993 Odessa Declaration1573 and the subsequent SAPs. The Izmir Protocol adopted under the Mediterranean Regional Sea Programme provides a model that could be used in the Black Sea.1574 More importantly, is the complete lack of action by the Black Sea States on this issue. Complementing the duty to meet the applicable international shipping standards and regional commitments on prevention of vessel source pollution is the important question of enforcement. Under international law the principle responsibility for ensuring that ships meet international shipping standards falls upon the flag state. However, port state control has developed into powerful enforcement tool. The Black Sea in the year 2000 established the Black Sea MOU on Port State Control.1575 However, a comparison with the Paris MOU, which is reflective of best legal practices, shows that the Black Sea port state control system needs further revision, such as increasing the amount of inspections conducted in Black Sea ports and imposing strict sanctions on repeated violations. The IMO does and should continue to promote stricter port state control measures in the Black Sea. Once again, the Black Sea Commission has an active responsibility to take action to ensure that shipping standard are met in the Black Sea through the adoption of necessary measures, such as stricter port state control measures. The EU, operating through Bulgaria and Romania are in the best position to bring this matter to the attention of the Black Sea Commission. Particularly Sensitive Sea Areas (PSSA)1576 and associated protective measures (APM) as developed by the IMO has emerged as one of the strongest tools to protect the marine environment from the risks of shipping activities. The combination of increased ship traffic, especially tankers, and the ecological sensitivity of the Black Sea marine environment present strong indices that the Black Sea, or parts of it, is an excellent candidate to be designated at the IMO as a PSSA. There are numerous APMs available, such as traffic separation schemes and routes that could be used to direct the direction of shipping routes to minimize exposure to areas designated as being particularly sensitive to the adverse impacts of shipping. A detailed technical study would need to be conducted based upon which a proposal could be prepared outlining which areas in the Black Sea need protection and the APMs to be used.

7. The EU and the Black Sea

One important area that remains undefined is the role of the EU in the Black Sea. Clearly, Bulgaria and Romania as full member States are obligated de jure to comply with the different EU Directives and overall aquis communautaire. And as a

1573 Id. 1574 Supra note 602. 1575 Supra note 1467. 1576 Supra note 87. 284 Chapter VIII

candidate State Turkey is likewise required to incorporate the voluminous EU legislation into its national laws as part of its accession process. However, given the relatively small geography of the Black Sea with only six coastal States, the influence of the EU stands to be significant. This raises the question of whether the EU should be a Party to the Bucharest Convention, which would require amending it. In 2009 Bulgaria and Romania made a joint proposal to the Black Sea Commission for the accession of the EU to the Bucharest Convention,1577 which failed to obtain the agreement of the other Black Sea States.1578 However, this initiative should be renewed. EU accession to the Bucharest Convention would clarify and strengthen the role of the EU in the Black Sea. The Baltic Sea, quite similar in many aspects to the Black Sea, where all but the Russian Federation area Member States of the EU, provides an example of positive EU influence in a regional sea. For example, the Baltic Sea Strategic Action Plan adopted by HELCOM was hailed as a model of best practices for the EU. Furthermore, the EU can provide valuable technical expertise as well as access to funding for projects, studies, training and overall support needed to ensure that the Black Sea Regional Seas Programme provides a robust framework for protection of the Black Sea marine environment. Moreover, the Black Sea Synergy Communication1579 represents an important commitment by the EU to the Black Sea and the Black Sea States should make optimal use of the opportunities afforded by it. One of the challenges related to EU involvement in the Black Sea concerns fisheries in light of EU exclusive competence over fisheries activities. However, when Turkey, a significant fisheries stakeholder in the Black Sea, becomes a full Member much of the governance for fisheries in the Black Sea will in effect be under the exclusive control of the EU. For this reason it would make sense for the Black Sea States to engage with the EU early on to develop a regional approach to fisheries management that would be sustainable and beneficial for all Black Sea States. The role of the EU stands to be particularly important in the regulation of land- based pollution, especially through the 2002 WFD1580 and MSFD.1581 The application of river basin management by Bulgaria, Romania and also Turkey will have a direct impact on the Black Sea as the objective of “good water status” by 2015 under the WFD includes the Black Sea. The challenge lies developing a cooperative mechanism with the Ukraine, Russia and Georgia, non-EU member States, in meeting this objective. The influence of the EU in matters of shipping and protection of marine biodiversity are, however, more of a supplementary character as these two areas are directly influenced by global instruments. The 1982 LOSC has direct application to

1577 Supra note 582. 1578 Supra note 589. 1579 Supra note 567. 1580 Supra note 47. 1581 Supra note 48. Gaps, Lessons Learned and Recommendations 285 shipping and indirect application to the protection of biodiversity through Part XII on protection of the marine environment in general. International shipping is principally regulated at the global level under the auspices of the IMO and its instruments. The EU provides for best practices in shipping, important for the Black Sea, especially in relation to the EU’s strong implementation of port state control. One recommendation would be for greater institutional co-operation between the Black Sea Commission and the European Maritime Safety Agency (EMSA). For example, an MOU could be concluded between the two bodies that would allow for regular exchange of experts, joint workshops and facilitate harmonization of shipping standards between the EU and the Black Sea. Likewise, in relation to protection of biodiversity, close co-operation between the EU and the Black Sea States is necessary for ecological reasons. The Black Sea is one of the nine biogeographic regions in the EU established as part of its Habi- tats Directive.1582 In meeting the Aichi Biodiversity Targets1583 and implementing its own biodiversity strategy, the EU will need to collaborate with the Black Sea States. In several ways this will be to the advantage of Black Sea States which can benefit from financial and technical support from the EU in establishing a network of marine protected areas in the Black Sea as required under the Black Sea Biodiversity and Landscape Protocol1584 and the Aichi Targets of the 1992 CBD.1585

8. UNEP Regional Seas Programme

While this study focused on assessing the regime of regional co-operation for the Black Sea, it also provided an opportunity to assess regional co-operation in other regional seas programmes. In examining the UNEP Regional Seas Programme the lack of standardization among the different regional seas programmes became evident. For example, not all regional seas programmes have the same specialized protocols, such for protection of biodiversity or land-based pollution. Different standards and principles apply in different regional seas instruments. There is no common standard by which to assess the different regional seas programmes. Despite the need to promote and ensure compliance with obligations under regional instruments only the Mediterranean Sea programme has adopted a compliance mechanism. OSPAR by giving the Commission the competence to adopt binding decisions has also created a framework to bring about compliance by its member States. Whereas, the lack of an effective compliance mechanism in the Black Sea and the other regional seas programmes is a significant gap in promoting sustainable governance of the marine environment. Clearly this is an area where the UNEP should be more effective.

1582 Supra notes 855 and 857. 1583 Supra note 788. 1584 Supra note 60. 1585 Supra note 787. 286 Chapter VIII

9. The Future

The most important lesson to be derived from the experience of the Black Sea is, without question, the importance of creating a solid legal foundation that is responsive to the needs of the marine environment as well as to the developments of international law. Governance, especially within a framework of regional co-operation is a dynamic function of law, policy, science and international relations. Its framework must also be dynamic and be able to respond. Other regional seas, such as OSPAR, HELCOM and the Mediterranean Sea have demonstrated that multiple States bordering a single sea area can co-operate and create the necessary legal framework to implement the measures for the protection of the marine environment. The Black Sea States must be more pro-active in their obligation under both international law and the regional instruments they have adopted to institute the legal framework that will ensure sustainable development and protection and preservation of the Black Sea marine environment. The achievement of a robust regional legal framework does not necessarily require use of traditional binding instruments or traditional forms of judicial dispute settlement. As demonstrated in this study, traditional approaches may fail or take too long to be implemented. Given the time pressure inherent in addressing environmental degradation States need to take timely action. A creative approach that combines traditional binding instruments with more flexible soft law instruments is likely to produce more results quicker. However, compliance and enforcement are essential components of an effective governance regime. In the case of the Black Sea the options for judicial enforcement of legal obligations are minimal. The Bucharest Convention does not provide for compulsory dispute settlement. And while the 1982 LOSC does, it has limited application in the Black Sea. First, Turkey is not subject to its compulsory dispute provisions; second, it does not apply to fisheries activities in the EEZ; and third, the practical unlikelihood that any of the Black Sea States would bring an action. Consequently, a compliance mechanism that would serve as a facilitator would be the most functional method to improve overall compliance of the Black Sea States with their commitments. In addition, there is a need to actively engage legal experts in the system, which could be achieved by establishing a permanent Legal Advisory Group to the Black Sea Commission. Moreover, the engagement between the UNEP and external funding agencies needs to be aligned to bring about actual implementation of actions rather than simply developing measures, such as protocols. Lastly, the relationship between the European Union and the Black Sea holds the greatest promise. The EU, already partially embedded in the Black Sea by way of Bulgaria and Romania, can contribute significant expertise, know-how and financial support to creating a robust regional regime for protection of the Black Sea marine environment. Gaps, Lessons Learned and Recommendations 287

An author once described the Black Sea as an “enchantress” with waves of silver and golden shores, a sea “black” only in name, blue and lucid.1586 This was the Black Sea in the 1960s before the effluents of industrialization and modern farming had nearly sapped its life, before the killer jellyfish practically devoured its fish stock, before the wealth of oil threatened its clear waters. It is doubtful that the enchantress of yesteryears will return, but there is hope for the future that with full co-operation by the Black Sea States in meeting their international and regional obligations for the protection and preservation of the marine environment this unique sea of history and nature will survive for many generations to come.

1586 Vladmir Topentcharov, Cette Mer Enchantresse Nommee Noire 5 (1961).

Index

1774 Treaty of Küçük Kaynarca 20, 21 1973 Convention on International Trade in 1829 Peace Treaty of Edirne (Adrianople) 22 Endangered Species and Wild Fauna and 1833 Hunkâr Iskelesi Treaty 23 Flora (CITES) 129, 130 1833 Treaty of Defensive Alliance 21, 23 1976 the Regional Oil Combating Centre for 1923 Lausanne Peace Conference 4 the Mediterranean Sea (ROCC) 108 1923 Treaty of Peace With Turkey and Other 1978 Hague Memorandum of Understanding Instruments (Lausanne Peace Treaty) 5, on Part State Control (Hague MOU) 257 27, 28 1979 Convention on the Conservation of 1936 Convention Regarding the Regime of the Migratory Species (Bonn Convention or Straits Signed at Montreux on 20 July 1936 CMS) 129, 130, 134, 148 (Montreux Convention) 5, 29, 37 1979 Wild Birds Directive and the 1992 EC 1936 Montreux Conference 5 Directive on the Conservation of Natural 1958 Law of the Sea Conference Habitats and of Wild Fauna and Flora (UNCLOS I) 33 (Habitats Directive) 151 1958 Geneva Convention on the Territorial Sea 1982 United Nations Convention on the Law and the Contiguous Zone 37, 83 of the Sea (LOSC) 3, 5, 7, 10, 14 n. 92, 17, 1958 Geneva Convention on the High 28, 34, 36, 39–43, 76–77, 79 n. 414, 82, 87, Seas 37, 83 90, 117, 118 n. 659, 127, 136–138, 144–145, 1958 Geneva Convention on the 155, 162, 168–174, 176, 179 n. 1006, 183, Convention on the Continental Shelf 37, 194–196, 201, 203–204, 206, 209, 83 215 n. 1220, 227–230, 235, 237–238, 244, 1958 Convention on Fishing and Conservation 252 nn. 1430, 1434, 259, 262, 268, 270–272, of the Living Resources of the High 275–276, 278, 281, 284, 286 Seas 37, 83 1985 Montreal Guidelines 206 1959 Convention Concerning Fisheries 1989 Convention on Control of Transboundary in the Black Sea (1959 Varna Fisheries Movement of Hazardous Wastes and their Convention) 82, 182 Disposal (Basel Convention) 87 1969 Agreement for Co-operation in Dealing 1990 International Convention on Oil Pollution with Pollution of the North Sea by Oil Preparedness, Response and Co-operation and other Hazardous Substances (Bonn (OPRC) 87, 239 Agreement) 114 1990 Protocol Concerning Specially Protected 1969 Vienna Convention on the Law of Areas and Wildlife (SPAW Protocol) 9 Treaties 94 1990 Protocol Concerning Specially Protected 1969/1992/2000 International Convention Areas and Wildlife (SPAW Protocol) of the on Civil Liability for Oil Pollution Damage Cartagena Convention 147 (CLC) 163 n. 932, 239 1992 Convention on Biodiversity 9, 127, 138 1971 Convention on Wetlands of International United Nations Conference on Environment Importance Especially as Waterfowl Habitat and Development (UNCED) 9, 78, 81–82, (Ramsar) 128–129 91–92, 120, 122, 127–128, 141, 162, 171, 1971/1992 International Fund for 176, 183, 205–206, 228 Compensation for Oil Pollution Damage 1992 UNEP Regional Seas Programme 3 (FUND) 163 n. 932, 239 1992 United Nations Framework Convention 1972 Convention for the Protection of the on Climate Change (UNFCCC) 68 World Cultural and Natural Heritage (World 1993 Black Sea Wetland Declaration 64, 133 Heritage) 128 1993 Convention for the Conservation of 1972 Declaration of the United Southern Bluefin Tuna (SBT Treaty) 90, 173 Nations Conference on the Human 1995 FAO Code of Conduct for Responsible Environment 80 Fisheries together with its Technical 1972 London Convention 82, 86 Guidelines 172

1995 United Nations Agreement for the Agenda 21 75, 81, 87, 91–92, 107, 115, 120, Implementation of the Provisions of the 123, 127, 137, 162, 171, 176, 183, 205–207, United Nations Convention on the Law of 215 n. 1225, 227–228, 268, 278 the Sea of 10 December 1982 Relating to the Agreement for the Conservation of Small Conservation and Management of Straddling Cetaceans of the Baltic and North Seas Fish Stocks and Highly Migratory Fish Stocks (ASCOBANS) 131 (1995 FSA) 10, 168, 172 Agreement on Co-operation between the Black 1996 Black Sea Strategic Action Plan (Black Sea Economic Co-operation and the United Sea-SAP) 9, 167 Nations Environmental Programme 98 1996 Black Sea Transboundary Diagnostic Agreement on Port State Measures to Prevent, Analysis (Black Sea-TDA) 7, 9, 11–12, 54, Deter and Eliminate Illegal, Unreported and 58, 67, 72, 84, 152, 167, 168 n. 942, 235, 262, Unregulated Fishing 179 268, 274 Aichi Biodiversity Targets 141, 160, 164, 275, 1996 Black Sea Strategic Action Plan (Black 285 Sea-SAP) 11, 64, 85, 91–92, 94, 120, 127, air pollution 254, 263 133, 152–154, 156, 168, 195–196, 268, Albania 97, 100, 212 n. 1207 270–271, 274 Alexander Yankov 137 1996 International Convention on Liability and algal blooms 52 Compensation for Damage in Connection algal macrofloral 53 with the Carriage of Hazardous and Noxious alien species 7, 54–55, 67, 71–72, 127, 139, Substances by Sea (HNS) 239 247 1998 Pan-European Biological and Landscape Alps 45 Diversity Strategy (PEBLDS) 180 Amoco Cadiz 257 2000 Protocol on Preparedness, Response anadromous fish 58, 69–70 and Co-operation to Pollution Incidents by anchovy 55–56, 59, 60, 66, 70, 72, 262 Hazardous and Noxious Substances Annex VII arbitral tribunal 40, 90 (OPRC-HNS) 239 Anoxia 48–49 2001 Antifouling Convention Aquaculture 55, 60–61, 186, 189–190 (AFS Convention) 240 Armenia 97, 100 2004 International Convention for Control and Article 122 39–40 Management of Ships’ Ballast Water and Article 123 37, 39–44, 137, 169 Sediment (BWM) 112 Article 192 77, 137, 204, 270–271 2005 Marine Thematic Strategy 103 Article 194(5) 137, 139, 145, 270 2007 Black Sea Transboundary Diagnostic Article 197 39, 41, 43–44, 169 Analysis (Black Sea-TDA) 54–55, 60, 65, Article 235 of the 1982 LOSC 136 72, 85–86, 120, 127 n. 707, 153, 225, 262, Article 65 170 268, 280 Arvid Pardo 76 2009 Black Sea Strategic Action Plan (Black associated protective measures 259, 265, Sea-SAP) 7, 85, 91, 94, 120, 153, 168, 184, 283 195–196, 268, 271, 276, 279 Atlantic bonito (Sarda sarda) 59 atmospheric nutrient 57 Aarhus Convention 119, 124, 230, 274 Aurelia aurita 53, 69 access to information 40, 91, 101, 115, 142, Automated Information Systems (AIS) 180, 209–210, 218–219 241, 278 acquis communautaire 3 Azerbaijan 97, 100 Agreement on the Conservation of azoic 50 Cetaceans of the Black Sea, Mediterranean Azov Sea 45–46, 56 n. 286, 68–69, 83, 87, Sea and Contiguous Atlantic Area 100, 156, 183, 224 (ACCOBAMS) 144–149, 182 Conservation Plan Black Sea Cetaceans 62, Baia Mare 220 131–132, 134 Balanus improvius 55 Advisory Group on Control of Pollution from Balkan 45 Land Based Sources 97 ballast water 10, 13, 62, 114, 235, 240, 244, Advisory Group on the Environmental Aspects 260, 262–263 of the Management of Fisheries and other Baltic Sea 3, 8, 20, 30, 48–49, 52, 76, 104, Marine Living Resources 97 110–114, 122, 144 n. 811, 193, 210, 213, Index 291

215, 239 n. 1355, 245, 247–251, 255, 260, Bonn Agreement for Co-operation in Dealing 265, 267, 284 with Pollution of the North Sea by Oil and Baltic Sea Action Plan (Baltic-SAP) 112 other Harmful Substances 249 Barcelona Convention 82–83, 92, 107, 132, Bosphorus 4, 18 149, 211 bottom trawling 51, 61, 63 Barents Sea 178 brackish water fish 58 Battle of Çeşme 20 BSEC 2, 94–95, 97–100, 102, 198, 212 Bebek-Kandilli 47 BSEC Charter 98 Beroye ovata 56 BSERP 12, 101–102, 123, 195, 202–203, 216, Best available techniques (BAT) 107, 115, 224–227, 229–230, 279–280 211, 218 BSERP Exit Strategy 226 Best environmental practice 111–112, 115, Bucharest Convention 5, 8, 11, 83–92, 95–97, 123, 211, 218, 276 99, 101–102, 105–106, 111, 120–121, Best legal practices 3, 120–122, 128, 143, 123–125, 127, 136–137, 139, 143, 145, 146, 162–163, 227–229, 232, 244, 266–268, 154–156, 159, 161–162, 183, 187, 194–196, 274–275, 279, 282–283 201, 215–218, 229–232, 235, 242, 255–257, biodiversity 3, 6–7, 9–10, 51, 54–55, 57–58, 261 n. 1487, 268–274, 276–278, 281–282, 67, 69–72, 111–112, 127–130, 132, 284, 286 138–141, 146, 150–157, 159–163, 165, 186, Bucharest Declaration (2007) 91 201, 267–268, 270, 272–275, 280, 285 buffer zones 148–149 biogeographical regions 151 Bulgaria 1–2, 6, 8, 10, 15, 58–62, 82–83, Birds Directives 103 86, 97, 100, 103, 105, 106 n. 589, 124, 128, Black Sea Biodiversity and Landscape 150–151, 153 n. 875, 160, 180 n. 1015, 182, Conservation Protocol (Biodiversity and 189–190, 192–193, 198, 212 n. 1207, Landscape Protocol) 10, 84, 128, 135, 146, 214–216, 221, 222 n. 1275, 223 n. 1280, 153, 156–157, 158–160, 162–164, 185–186, 224, 230, 233 n. 1329, 237, 242–243, 263, 263, 267, 275, 285 265, 272, 277, 282–284, 286 Black Sea Commission 12, 68, 72–73, 86, 88, by-catch 61, 132, 134 n. 754, 168, 186–187 94–97, 100–101, 105, 123–125, 127 n. 708, 132, 134, 145 n. 818, 160–161, 163–165, Çanakkale (Dardannelles) 18, 20, 21, 23 180, 187, 196, 198, 218, 223–226, 231, 240, California Fisheries Fund (CFF) 188, 197 263–264, 266, 269, 273–274, 279–280, capitulations 18, 20 282–286 Carpathian 45 Black Sea Commission Advisory Groups 96 Cartagena Convention 9, 146–147, 154 Black Sea contingency plan 92, 235 Caspian 1, 12, 30, 45, 110, 181, 233, 262 Black Sea Ecosystem Recovery project Caspian fauna 45 (BSERP) 101–102, 123, 195, 202–203, Caucasus 45, 58 216, 224–228, 230, 279–280 CBD – Advisory Group on the Conservation of Black Sea Fisheries Commission 187 Biological Diversity 97 Black Sea Fisheries Fund 187 CBD Subsidiary Body on Scientific, Technical Black Sea Integrated Monitoring and and Technological Advice (SBSTTA) 140 Assessment Programme 86 cetacean 61, 71, 83, 131–132, 134–135, 164, Black Sea monk seal 6 170 Black Sea MOU 197, 258, 264, 283 Chapter 17 of Agenda 21 81, 92, 123, 137, Black Sea Naval Co-operation Task Force 183, 206–207, 215, 227–228, 268 (Blackseafor) 180 Chaudian Sea-Lake 45 Black Sea NGO Network 100–101 CITES 62–63, 118, 129–130, 134, 148, 181, Black Sea Red Data book 58, 161 194, 270 Black Sea Regional Seas Programme 2, 82, Climate Change 66–68, 72, 96 n. 520, 99, 230, 267, 271, 274, 279–280, 284 117, 122, 184–185, 254 Black Sea Synergy – a New Regional Co-operation closed sea 4, 18, 24, 26–34, 37, 43 Initiative (BSS) Communication 104–106, Cold War 7, 82, 182 125, 198, 265, 284 comb jelly (Mneiopsis leiydi) 10, 55, 59 Black Sea Trade and Development Bank 98, 198 Commission for the Protection of the Marine Black Sea Wetland Declaration 64, 133 Environment of the Baltic Sea Area 14 Black Sea wetlands 64–65 common bottlenose dolphin (Tursiops Bluefish (Pomatomus saltator) 59 truncatus) 61 292 Index

Common Fisheries Policy 103, 177–178, Cystoseira barbata 53 190–191 Czarina Catherine II 20 Communication on an Integrated Framework for Fisheries Partnerships Agreements with DABLAS Task Force 224 Third Countries 192–193 Danube Delta Biosphere Reserve 145 compliance 79, 109, 116–120, 124, 131, Danube Programme 12 171–172, 180, 186–188, 210–211, 219–220, Danube River 12, 26, 51–52, 71, 97, 101–102, 228, 237, 242, 271, 273–274, 279, 281, 201, 212, 220–223, 225–227, 271, 279 285–286 Danube River Basin 7, 12, 71–72, 97, 201, compliance mechanisms 118–119, 179, 188, 207, 212, 220, 222–227 228, 273–274 Danube River Commission 12, 203 compulsory dispute settlement 90, 195, 276, Danube River Protection Convention 286 (DRPC) 212 Concentrated Inspection Campaign dead zone 50, 55, 72 (CIC) 258 deep water column 49 contingency plans 235, 246, 255 Deepwater Horizon 13 n. 83, 234 Convention for the Prevention of Marine deep-water marine life 50 Pollution by Dumping from Ships and deepwater route 249, 260 n. 1486 Aircraft (Oslo Convention) 114 demersal fish stocks 168 Convention for the Prevention of Marine Denmark 110, 119 n. 665, 192–193, 248, Pollution by Dumping of Wastes and other 249 n. 1405, 250, 257, 260, 277 Matter 86 dinoflagellates 52 Convention for the Prevention of Marine Dneiper River 51–52 Pollution from Land-Based Sources (Paris Dniester River 51 Convention) 114 dolphinaria 61 Convention for the Protection and Don River 68–69 Development of the Marine Environment draft Legally Binding Document (LBD) of the Wider Caribbean Region (Cartagena 183–187, 195–196, 198–199, 272, 276–278 Convention) 146 duty of co-operation 17, 38, 40, 122, 245 Convention for the Protection of the Black Sea Against Pollution (Bucharest ecolabeling 188–189, 197, 199 Convention) 5, 75, 83, 91 ecosystem approach 85, 140, 145, 159 n. 908, Convention for the Protection of the 160, 162, 174, 176–177, 185, 198, 215, 228, Marine Environment and the Coastal 231, 251 Region of the Mediterranean (Barcelona ecosystem quality objectives (ECOQOS) 85 Convention) 107 ecosystem-based fisheries management Convention for the Protection of the Marine (EBFM) 176 Environment of the North-East Atlantic 14, ecosystems 66–67, 102, 104, 117, 129, 137, 114, 208 139–140, 144, 146, 148 n. 831, 149, Convention for the Protection of the 154–155, 162, 167, 179, 184 n. 1038, 186, Mediterranean Sea against Pollution 216 n. 1230, 217–218, 225, 236, 251, 254, (Barcelona Convention) 82 261, 270 Convention on Conservation of Antarctic EEZ 11, 35, 145, 168–171, 173, 181 n. 1023, Marine Living Resources (CCAMLR) 173 183, 193, 195, 197, 237–238, 250, 253, 259, Convention on Co-operation and Protection 260, 265, 272, 276, 286 and Sustainable Use of the Danube River emergency response 92, 108, 235–236, 239, (DRPC) 222 264, 281 Convention on Environmental Impact enclosed or semi-enclosed seas 3, 5, 7, 12, 17, Assessment in a Transboundary Context 34–37, 41, 43, 76, 169, 206, 268 (Espoo Convention) 158, 224, 279 endangered species 7, 58, 62–63, 84, 137, Convention on Long-Range Transboundary Air 139, 146–147, 148 n. 831, 150, 207 Pollution (LRTAP) 120 environmental impact assessment 89, 91, Convention on the Protection of the Marine 107, 111, 122, 142, 149, 158, 209–211, Environment of the Baltic Sea Area, 1992, 217–219, 224, 228, 231, 261, 279 (Helsinki Convention) 111 Erika I, Erika II and Erika III packages 14, cyanide 216 n. 1229, 221, 256 n. 1457 103, 252–253 Index 293

ESAS – Advisory Group on the Environmental GloBallast Programme 240 Safety Aspects of Shipping 97 gray mullet Mugil soiy 59 EU Integrated Maritime Policy (IMP) 104, Great Barrier Reef 144 214, 254 Greece 97, 100 EU Strategy for Marine and Maritime Green revolution 51 Research 110 Guidelines for the Determination of Liability EU Strategy for Sustainable Development and Compensation for Damage resulting 103 from Pollution of the Marine Environment Europeaid 96, 145 n. 818 in the Mediterranean Sea Area 109 European Commission 40, 41 n. 213, 90, 98, Guidelines on Compliance with and 106, 109, 151, 196, 205, 212, 213, 222, 253 Enforcement of Multilateral Environmental European Court of Justice 40, 41, 175, 253 Agreements 117 European Fisheries Fund (EFF) 192, 198, Guidelines on the Ecosystem Approach to 277 Fisheries (EAF) 151 European Maritime Safety Agency Gulf of Mexico 13, 108, 234, 281–282 (EMSA) 253, 285 European Union 1, 3, 8, 62, 98–99, 101, 103, habitats 7, 58, 61, 63–65, 67, 72, 84 n. 451, 150, 189, 190, 196, 211–212, 216–217, 222, 85, 103, 113, 127, 129, 139, 144, 148 n. 834, 245, 251–252, 286 151 n. 855, 154–155, 157, 160 n. 915, 164 eutrophic seas 50 n. 934, 167, 175, 177, 185–186, 207, 217 Eutrophication 7, 10, 48–49, 51–55, 59–60, Habitats Directive 9, 62, 113, 151, 153, 159, 63, 71–72, 85, 112, 116–117, 167, 184, 164, 285 213–214, 224 haloclyen 49 Euxine Abyssal Plain 47 harbor porpoise (Phocoena phocoena) 61, exotic species 6–7, 46, 51, 55–56, 59 135 harmful invasive species 12, 114, 240, 244, FAO 10, 59, 172–174, 176–177, 179, 263 180 n. 1016, 183, 194 HELCOM 14, 112, 114, 122–123, 209, 210, Faroe Islands 192–193, 277 213, 219, 248, 251, 263–264, 266, 282, 284, Fernando Marsigli 48 286 Financial Instrument for Fisheries Guidance highly migratory fish stocks 10, 140, (FIFG) 192 170–173, 174 n. 978 firman 21, 24 holistic integrated river basin 12 fisheries 3, 10–11, 33, 59–61, 65–66, 69, 72, Horizon 2020 109 105–106, 125, 154 n. 880, 167–168, hydrogen sulfide gas 49 170–180, 182–184, 186–198, 207, 212, hypoxia 48, 53–54, 71 226, 267, 270–273, 275–278, 282, 284, 286 fisheries partnership agreements (FPAs) 193 ice age 45 FOMLR 97 Iceland 192–193, 250 Framework funds 101 ICZM – Advisory Group on the Development of Common Methodologies for 97 GEF/International Waters Programme 54 IDE – Advisory Group on Information and Data General Fisheries Commission for the Exchange 97 Mediterranean (GFCM) 173, 189 illegal discharges 241, 247–248, 250, 264 genetic resources 150, 157 illegal fishing 10, 60, 167, 187 Georgia 1, 8, 10 n. 60, 11, 58–60, 62, 83, 97, illegal, unregulated and unreported 100, 106, 128 n. 709, 134, 189, 198, 203, 212 fisheries 186 n. 1207, 215, 217, 223, 224, 229–230, 237, IMO 13, 14, 79, 108, 112, 205, 235–242, 246, 243, 277, 284 248, 249 nn. 1400, 1403, 250, 252 n. 1430, Giurgiu–Ruse Environmental Co-operation 258–263, 265–266, 281, 283, 285 Commission 221 Independenta 234 Global Environment Facility (GEF) Integrated coastal management (ICM) 122, International Waters Project 12 206, 244, 265 Global Programme of Action for the Protection Integrated Coastal Zone Management (ICZM) of the Marine Environment from Land-Based Strategy 85, 103, 114, 158 Activities (1995 GPA) 11 Integrated Maritime Strategy for the global warming 66–67 Mediterranean Sea 104 294 Index

Integrated River Basin Management marine spatial planning 114, 143–144, 244, (IRBM) 85 254, 261, 265 International Center for Black Sea Studies Marine Strategy Framework Directive (ICBS) 95 (MSFD) 8, 103, 106, 110, 124, 159, International Convention for the Prevention 202–203, 214–215, 229, 231–232, 254, 284 of Pollution by Ships 87, 238 MARPOL 73/78 Convention 239, 281 International Convention for the Safety of Life Marsigli’s corrante 48 at Sea Convention (SOLAS) 238 Mediterranean Action Programme 92 International Convention on Liability and Mediterranean Commission on Sustainable Compensation for Damage in Connection Development (MCSD) 109 with the Carriage of Hazardous and Noxious Mediterranean monk seal (Monachus Substances by Sea 239 monachus) 61–63 International Maritime Organization 13, 79, Mediterranean Sea 14, 20–21, 46, 48, 76, 82, 98, 240 107–109, 162, 211, 246, 255, 264, 277, 285 International Oil Pollution Fund (IOPF) 205 Mediterranean Strategy for Sustainable International Tribunal for the Law of the Sea Development (MSSD) 109 (ITLOS) 40, 90 n. 498 Mediterranean Trust Fund 108, 246 intraregional co-operation 8 Mehmet Ali Pasha 23–24 IPCC Fourth Assessment Report 67 Meibenthos 50 Ireland 40–41, 90 n. 500, 176, 249, 250 migratory species 129–131, 179, 185, 270 Istanbul 1, 18, 19, 21, 23–24, 26, 29, 42, 45, Mnemiopsis leidy 10, 66 47–48, 95–96, 105, 197, 216, 258 Monachus monchus 6 IUCN Red Data Book 61, 62 Montreal Protocol to the Vienna Convention for the Protection of the Ozone Layer 119 Jakarta Mandate 140 most appropriate technology (MAT) 209 Johannesburg Plan of Implementation MOX Plant case 40, 90 (JPOI) 80, 140 MPA 122, 132, 148, 153, 160, 164 Mya 56 Karangat Sea 46 Karkinitsky Bay 53 Nagoya 140, 145 Kazakhstan 45 Nagoya Strategic Plan for Biodiversity 152 Kerch Strait 68, 132, 234 Napoleon Bonaparte 4, 21 Kilka 70 Nassia Shipbroker 234 Kyoto Protocol 119, 273 National Environmental Defense Fund (EDF) 188 land reclamation 41–42 Nations Food and Agricultural Organization land-based pollution 11, 154, 201, 207, 209, (FAO) 10 213, 215, 278 NATO 182 diffuse pollution 11, 215, 217 Natura 2000 178 large-scale drift netting, trammel 61 network of Black Sea Reserves, 159 Laurence Mee 51 network of marine protected areas 113–114, LBS Protocol 11, 209, 211, 215–216, 219, 132, 135, 141, 145, 164–165, 275 227, 230, 279 nitrogen 51, 55, 69, 226, 256 n. 1457 Leiv Eiriksson 234 noise pollution 61 Long Range Tracking (LRIT) 180 non-compliance procedure 120, 179 n. 1007 low and non-waste technologies 91 non-target species 174, 177, 186 North Sea 210, 249 Malaysia 41 North Sea Manual on Maritime Oil Pollution mandatory ship reporting 249, 265 Offences 250, 264 mare clausum 18, 36 North West Shelf (NWS) 49 Mare Liberum 17, 76 Northeast Atlantic Sea 8 marine biodiversity 4, 11 Northern Agreements 193 Marine Environment of the North-East Atlantic Northwest Atlantic Fisheries Organization (OSPAR Convention) 14, 40–41, 90, (NAFO), North Atlantic Salmon 114–116, 123, 208, 210, 220, 250, 279 Conservation Organisation (NASCO) 173 marine fisheries capture 59 nutrient input 12, 102, 201, 220, 225 Index 295 ocean enclosure 169 Pontian Sea-Lake 45 Odessa Declaration (1993) 90–92, 97, Pontian stage 45 120–121, 155, 271 port state control 13, 77, 179, 197, 236–237, offshore activities 14, 236, 246, 251, 257, 253, 257–258, 264, 266, 283 264, 270 precautionary approach 91, 140, 142, 184, offshore platforms 113, 247–248 191 n. 1093, 196 oil spills 103, 250, 260 Prestige 241, 252, 261 oligotrophic 51 Principle 24 of the Stockholm Declaration Organization of the Black Sea Economic 39 Co-operation (BSEC) 94 protection of the marine environment 2, 8, OSPAR 114–115, 117, 120, 123, 140 n. 783, 13, 17, 36, 44, 75, 80, 86, 94, 103, 111, 122, 210, 250, 264, 273 143, 146, 154, 204–205, 219, 227, 269, 274, OSPAR Commission 116–117, 123, 210, 286 250–251 Protection of the Marine Environment OSPAR Commission Rules of Procedure 116 Against Pollution from Land-based Sources OSPAR Group of Jurists and Linguistics 116 (Montreal Guidelines) 205 OSPAR’s Strategy on the Protection and Protocol Concerning Co-operation in Conservation of the Ecosystems and Biological Combating Pollution of the Mediterranean Diversity of the Maritime Area 251 Sea by Oil and other Harmful Substances Ottoman Empire 3–4, 17–19, 20 n. 105, 21, in Cases of Emergency (Emergency 22 n. 115, 23–24, 25, 42 Protocol) 14, 108 oxyclyne 49 Protocol Concerning Specially Protected Areas and Biological Diversity in the Paleoeuxinian basin 45 Mediterranean 9, 14, 108 Pan-European 98, 152, 159 Protocol Concerning Specially Protected Paris MOU 258, 264, 283 Areas and Biological Diversity in the Parliamentary Assembly of the Black Sea Mediterranean (SPAMI Protocol) 9 Economic Co-operation (PABSEC) 94, 99 Protocol for Integrated Coastal Zone Part XII 1982 LOSC 40, 77, 137, 154, 162, Management (ICZM Protocol) 109 285 Protocol for the Prevention and Elimination Particularly Sensitive Sea Area 13, 236, 258, of Pollution in the Mediterranean Sea 283 by Dumping from Ships and Aircraft or Partnerships in Environmental Management Incineration at Sea 14 n. 90, 107 for the Seas of East Asia (PEMSEA) 239 Protocol for the Prevention and Elimination Peace Treaty of Carlowitz on 26 January of Pollution of the Mediterranean Sea 1699 19 by Dumping from Ships and Aircraft Pelagos Sanctuary for Mediterranean Marine or Incineration at Sea (Dumping Mammals 108, 150 Protocol) 245 Perestroika 83 Protocol for the Protection of the Permanent Court of Arbitration 40 n. 211, Mediterranean Sea Against Pollution 90 Resulting from Exploration and Exploitation Perpetual Treaty of Peace signed in Jassy in of the Continental Shelf and the Seabed and 1792 21 its Subsoil (Offshore Protocol) 245 Peter the Great 4 Protocol in Cases of Emergency, Combating PHARE 101 Pollution of the Mediterranean Sea Phyllophor 51, 53, 71, 160, 165 (Prevention and Emergency Protocol) 14, phytobentos 53 245 phytoplankton 52–54, 56 Protocol of 1978 Relating to the International Pikeperch 70 Convention for the Prevention of Pollution pilotage 249, 260, 265 from Ships 238 places of refuge 241, 261 Protocol on Civil Liability and Compensation Pliocene period 45 for Damage Caused by the Transboundary PMA – Advisory Group on the Pollution Effects of Industrial Accidents on Monitoring and Assessment 97 Transboundary Waters 223 polluter pays principle 81, 91, 107, 115, 122, Protocol on the Establishment of a 210–211, 217, 228 Supplementary Fund for Oil Pollution Pontian relics 45 Damage 239 296 Index

Protocol on the Prevention of Pollution of Sea of Marmara 45, 47, 56 the Mediterranean Sea by Transboundary SEA Protocol 224 Movements of Hazardous Wastes and their sea-level rise 67 Disposal (Izmir Protocol) 14 n. 90, 108, semisubmersibles 234 245 Serbia 19 n. 102, 97 Protocol on Protection of the Black Sea Against shared fish stocks 11, 167, 170–174, Land-Based Sources 11, 84 194–195 Protocol on the Protection of the Black Sea ship routing 248 Environment Against Pollution by Dumping short-beaked common dolphin (Delphinus (Dumping Protocol) 84 delphis) 61 Protocol on the Protection of the Black Sea sic utere iure tuo ut alterum no laedus 38, 204, Marine Environment Against Pollution from 223 Land-based Sources (LBS Protocol) 84 Singapore 41 PSSA 236–237, 244, 248, 259–261, 265 Sites of Community importance 151, 153 public participation 81, 91, 101, 119, 142, Sochi 52 210, 213, 219, 225, 228, 274, 279 Sofia Declaration (2009) 91 soft law 80, 142, 161, 163, 201–202, 207, Ramsar sites 64, 133 223, 227, 263, 286 range States 131, 148 South Bug 52 Rapana Rapana thomasiana thomasian (sea South Indian Ocean Fisheries Agreement snail) 56 (SIOFA), South Pacific Regional Fisheries rational fishing 182 Management Organisation (SPRFMO) Regional Activity Center for Specially Protected 173 Areas (RAC-SPA) 132, 150 South-East Atlantic Fisheries Organisation regional co-operation 3–5, 7, 11, 14, 17, 75, (SEAFO) 173 104, 110, 167, 182, 185, 206, 209, 222, 236, Soviet Union 4, 28–29, 83 n. 437 239, 268, 280, 286 SOx ship emission control areas (SECA) regional fisheries 10, 60, 72, 167–168, 248 194–195, 275–277 SPAMI 9, 108, 122, 146, 149–150, 158 regional fisheries agreement 60, 72, 194–195, SPAMI Protocol 9, 108, 149–150, 156, 275–276 158–159, 162 Regional Marine Pollution Emergency SPAW Protocol 9, 146–150, 15–158, 162 Response Centre for the Mediterranean Sea Special Areas 238 (REMPEC) 239 St. Petersburg Academy of Science 58 revised Black Sea Protocol for Land-Based State of Environment Report (2002) 57 Pollution was drafted and adopted in 2009 Stockholm Convention on Persistent Organic (revised LBS Protocol) 11 Pollutants 203 Reykjavik Declaration on Responsible Fisheries straddling stocks 170 in the Marine Ecosystem 176–177 Strait of Çanakkale 1 n. 2, 18, 20, 21 n. 107, RFMO 172–173, 179–180 23, 46–47 Rhithropanopeus harrisi tridentata 56 Strait of Gibraltar 83 Rio de Janeiro 9, 81, 138 Strategies of the OSPAR Commission for the Rio Declaration 75, 80, 87, 107, 115, 120, Protection of the Marine Environment of 123, 142, 147, 174, 184, 268 the North-East Atlantic (OSPAR rising sea levels 66 Strategies) 116 Risshosstoma pulmo 53 sturgeon (Acipenser nudiventris) 63, 70, 181, Romania 1–2, 8, 15, 26, 47, 51, 59, 64, 83, 86, 182, 194 193, 282 Summit Declaration on the Black Sea Economic Russian Empire 17, 19 Co-operation 97 Russian Federation 180, 189, 198, 213, 248, 284 TACIS 96 tankers 13 S.C. Aurul mine 221 Tethys Sea 45 safety of navigation 13, 235, 238, 241, 261 Tien Shan Mountains 45 Sakarya River 47 Torrey Canyon 114 Sarmatic Sea 45 traffic separation schemes 249, 260 n. 1486, Sea of Azov 21, 68–70 265, 283 Index 297 transboundary co-operation 12, 135, 201 United Nations Economic Commission for transboundary pollution 12 Europe (UNECE) 223 transit route 249 United Nations Environmental Programme 2, transzonal-straddling fish stocks 168 78, 94, 98 Treaty of Pruth 19 United Nations Intergovernmental Panel on turbot (Scophthalmus maeoticus) 59 Climate Change (IPCC) 66 Turkey 1–2, 8, 10, 15, 25 n. 130, 26–30, 35, Urban Waste Water (UWW) Directive 213 43, 58–61, 62 n. 330, 83, 97, 100, 106, 125, user fees 91 134, 136, 150, 182, 189–190, 193–194, 196, 198, 212 n. 1207, 216 n. 1233, 238, 242, Vessel source pollution 6, 13, 108, 127, 154, 271–272, 277, 284, 286 234–238, 240, 242, 244–245, 247, 252, 255, Turkish Straits 1, 4–6, 13, 18, 19 n. 102, 21, 262, 264–265, 267, 280–283 22 n. 116, 23–26, 28, 29 n. 160, 42, 47–48, vessel traffic monitoring information systems 56, 67, 107, 132, 233–234 (VTMIS) 180

Ukraine 1–2, 7 n. 44, 8, 58, 61–62, 64, 68, warm water fish (Mediterranean origin) 58 83–84, 97, 100, 106, 125, 133, 182–183, Water Framework Directive (WFD) 8, 12, 189, 193, 212 n. 1207, 222 n. 1275, 224, 103–104, 124, 202, 211–213, 216–217, 226, 234, 237, 240 n. 1369, 242, 277, 281, 229, 231–232, 285 284 Western and Central Pacific Fisheries UNCLOS III Third Committee 137 Commission (WCPFC), North-East Atlantic UNECE Convention on Access to Information, Fisheries Commission (NEAFC) 173 Public Participation in Decision-making and Wider Caribbean Region 8, 146, 154, 162, Access to Justice in Environmental Matters 267 (Aarhus Convention) 119 Wider Caribbean Sea Regional Sea UNEP 3, 8, 44, 75, 78, 88, 94, 98, 101, 117, Programme 9 206, 221, 224, 236, 267–269, 274, 276, 282, World Bank 96–97, 101, 224, 226 285–286 World Bank/GEF Strategic Partnership for UNEP Global Action Plan on Marine Nutrient Reduction in the Danube River Mammals 62 Basin and Black Sea 97 UNEP Regional Seas Programmes 3, 7, 9, World Commission on Environment 11–12, 40, 75, 78–79, 82, 86, 106–107, 109, and Development (Brundtland 111, 122, 141, 146, 154 n. 880, 168, 195, Commission) 80 202, 209, 267, 269, 274, 276, 285 World Heritage Convention 129, 135, 165, UNESCO 143–144 270 Union of Soviet Socialist Republics (USSR) 1 Würm Glaciation 46 United Kingdom 40 United Nations 37, 78, 171, 235 Zernov’s Phyllophora field 53 United Nations Development Programme zooplankton 53, 63, 69 (UNDP) 12