United Nations Convention on the Law of the Sea - Assignment Example

Law Essay Questions By Question to the United Nations Secretariat Re: An International Convention for the Protection of Tropical Rain Forests from Deforestation Dear Secretariat, Tropical rain forest deforestation is among the top factors contributing to environmental, and especially climate change on a global level.1 A study conducted in 2002 shows that between 1990 and 1997, 5.8+ 1.4 million hectares of tropical rain forests ‘were lost each year’ and an additional 2.3 + 0.7 million hectares were ‘visibly degraded’.2 The main contributing factors to deforestation are population growths, urbanisation, trade, industrialization, ‘poor policies’ and ‘weak government institutions’.3 Therefore, on a national and regional level, the management of tropical rain forest conservation is weak. At the moment there is only one international instrument which applies generally to all forests: The Non-Legally Binding Instrument on All Types of Forests 2007. This instrument does not meet the specific needs of tropical rain forests and therefore does not address the specific causes of tropical rain forest deforestation. As a member of Protection of Tropical Rainforests, I would like to suggest the implementation of the International Convention for the Conservation of Tropical Rain Forests and recommend including the following 12 articles: Article 1: State parties will implement measures to promote and improve farming methods and techniques that replenish soil nutrients. (This article was selected because a number of countries in which tropical rain forest exists have poor farmers who depend on farming to survive. The farming methods used by both poor and economically successful farmers can be exploitive and contribute to soil degradation in the tropical rain forest).4 Article 2: State parties undertake to implement a system in which poor farmers are able to own title to a parcel of land in tropical rain forest for the purpose of farming. (This article is necessary as it is believed that once a farmer owns his or her farmland, they will have an incentive to safeguard against soil degradation to ensure that the soil is good for continued farming).5 Article 3: State parties shall introduce policies and laws that prohibits farmers that have been issued title to land for farming using other areas of the tropical rain forest for farming. (This should increase the incentive of farmers to keep the nutrient value of the soil to which they have title. This would also prevent farmers moving on to other areas of the tropical rain forest).6 Article 4: State parties should implement policies for infrastructure planning that minimises the impact on tropical rain forests. (This article is necessary because deforestation has been linked to infrastructure planning which has contributed to deforestation).7 Article 5: State parties undertake to take measures that promote the use of environmentally friendly pest control tools in tropical rain forests. (This article is necessitated by the fact that chemical pest control material contribute toward rainforest degradation and loss).8 Article 6: State parties will implement policies and laws for designating and enforcing the use of environmentally friendly fertilizers on agricultural soil in tropical rain forests. (Artificial fertilisers have been known to degrade soil and release pollutants into the atmosphere).9 Article 7: State parties undertake to implement measures for increasing public awareness of the dangers of tropical rainforest deforestation. (It is believed that public knowledge of the dangers of tropical rainforest deforestation increases the incentive to control behaviour that contributes to tropical rainforest deforestation). Article 8: State parties shall introduce and enforce laws and policies that identify and sanction littering in tropical rain forests and anti-conservation behaviour. (This article is necessary as it seeks to minimize the human impact on tropical rain forest deforestation).10 Article 9: State parties shall establish a committee for monitoring fire risks in tropical rain forests and for organising quick responses to fire risks and fires. State parties shall invest in equipment which are assessable and readily available for the committee to respond to fire risks and fires in tropical rain forests. (This article is necessitated by evidence that fires are spreading both in ‘size’ and ‘frequency’ in tropical forests globally).11 Article 10: State parties will undertake to investigate, identify and implement measures for controlling flooding in tropical rain forests. (This article is in response to reports that exploitation of large areas of tropical rain forests have increased the frequency and severity of flooding which in turn has contributed to deforestation in tropical rain forests).12 Article 11: State parties undertake to establish and fund a committee for monitoring and measuring tropical rain forests vulnerability to deforestation and to advise states on the appropriate measures for minimising or eradicating deforestation risks. (This article in response to reports that tropical rain forests are at risk of deforestation because they are primarily located in states and regions where institutional weaknesses persists).13 Article 12: All state parties will cooperate in establishing monitoring and control of fires, floods, and natural hazards to tropical rain forests. (This article is necessitated by the reality that controlling and managing tropical rain forest deforestation requires ‘international cooperation’).14 Thank you in advance for taking the above suggestions into account. We look forward to hearing from you and discussing the possibility of an international convention further. Yours Sincerely, Protection of Tropical Rainforests. Bibliography Journal Articles Achard, F.; Eva, H.D.; Stibig, H.-J.; Mayaux, P.; Gallego, J.; Richards, T. and Malingreau, J.-P. ‘Determination of Deforestation Rates of the World’s Humid Tropical Forests.’ (August 2002) 297 (5583) Science, 999-1002. Angelsen, A. ‘Agricultural Expansion and Deforestation: Modeling the Impact of Population, Market Forces and Property Rights.’ (February 1999) 58(1) Journal of Development Economics, 185-218. Chazdon, R.L. ‘Tropical Forest Recovery: Legacies of Human Impact and Natural Disturbance.’ (2003) 6(1-2) Perspectives in Plant Ecology, Evolution and Systematics, 51-72. Cochrane, M.A. ‘Fire Science for Rainforests.’ (27 February 2003) 421 Nature, 913-919. Geist, H.J. and Lambin, E.F. ‘Proximate Causes and Underlying Driving Forces of Tropical Deforestation.’ (2002) 52(2) BioScience, 143-150. Laurance, W.L. ‘Reflections on the Tropical Deforestation Crisis.’ (December 1999) 91(2) Biological Conservation, 109-117. Malhi, Y.; Roberts, J.T.; Betts, R.A.; Killeen, T.J.; Li, W. and Nobre, C.A. ‘Climate Change, Deforestation, and the Fate of the Amazon.’ (January 2008) 319(5860) Science, 169-172. Tschamtke, T.; Clough, Y; Wanger, T.C.; Jackson, L.; Motzke, I.; Perfacto, I.; Vandermeer, J. and Whitbread, A. ‘Global Food Security, Biodiversity Conservation and the Future of Agricultural Intensification.’ (July 2012) 151(1) Biological Conservation, 53-59. Wright, S.J. ‘Tropical Forests in a Changing Environment.’ (October 2005) 20(1) Trends in Ecology and Evolution, 553-560. Textbooks Grainger, A. Controlling Tropical Deforestation. (London: Earthscan, 2009). McGuffie, K.; Henderson-Sellers, A. and Zhang, H. ‘Modelling Climatic Impacts of Future Rainforest Destruction.’ In Maloney, B.K. (Ed.) Human Activities and the Tropical Rainforest: Past, Present and Possible Future. (Kluwer Academic Publishers, 1998) 169-195. Rubel, T. K. Tropical Forests: Paths of Destruction and Regeneration. (New York, NY: Columbia University Press, 2005). Question 2: Southern Bluefin Tuna Case/Australia and New Zealand v Japan Facts of the Case In 1999, Australia and New Zealand filed a dispute against Japan with the registrar of the International Tribunal for the Law of the Sea seeking an injunction restraining Japan’s fishing practices in respect of Southern Bluefin Tuna during 1998 and 1999. The claim made by Australia and New Zealand was that the fishing programme used by Japan was a serious threat to or irreversibly damaging to this species of tuna’s population. The proposed injunction required that the tribunal issue an order commanding that Japan abandon its fishing programme.15 Japan responded that the International Tribunal for the law of the Sea did not have jurisdiction over the claims made by New Zealand and Australia. If the Tribunal decided that it did have jurisdiction over the claims, it should find that the claims are unsubstantiated in that there was no evidence that Japan’s fishing practices threatened the population of Bluefin tuna and that its practices caused irreversible damages to the Bluefin tuna population.16 The Purpose of the Convention for the Conservation of Southern Bluefish Tuna 1993 The Southern Bluefish Tuna is described as a ‘highly migratory species’ that ‘migrates through’ the ‘economic’ and ‘fishery’ zones established by New Zealand, Australia and Japan.17 The purpose of the Convention for the Conservation of Southern Bluefish Tuna, 1993 is to therefore recognize and enforce the sovereign, conservation and economic rights contained in those zones through the cooperation of the state parties with respect to managing and controlling the exploitation of Southern Bluefin Tuna.18 Majority Ruling by the International Tribunal The majority of the International Tribunal for the Law of the Sea found that there was significant scientific evidence indicating that the Southern Bluefin Tuna population had become depleted. Thus far, cooperation between the state parties to the Convention of 1993 have not worked well recently and in the meantime, non-member states and those who have just started fishing have contributed to the depletion of the Southern Bluefin Tuna population. At this point the solution is for a temporary reduction of fishery in the area by all parties concerned. This should allow for the recovery of the Southern Bluefin Tuna population. All parties to the Convention of 1993 have a duty to cooperate in this regard as prescribed by Article 64 of the United Nations Convention on the Law of the Sea,1982.19 The outcome of this ruling directs attention back to the need to cooperate where highly migratory species are involved. The emphasis pursuant to Article 64 of the United Nations Convention on the Law of the Sea 1982 is for parties to manage and control their exploitation of marine life within their zones and outside of their zones so that each of the effected coastal states share in the use and conservation of the migratory species.20 This cooperation should be managed between the states and if necessary with the aid of other states within the international community.21Apparently, Japan had exploited its total allowable catch of Southern Bluefin Tuna, but in the spirit of cooperation as prescribed by Article 64 of the 1982 Convention, all member states to the 1993 Convention and all non-members fishing in the area are required to reduce their total overall catches and to cooperate on an agreement for fixing the time period for the reduction of their total catches. Dissenting Opinions Judge Warioba Judge Warioba disagreed with the International Tribunal’s decision that the total allowable catch be reduced. As Judge Warioba pointed out, the Tribunal admitted that it could not determine on the basis of the scientific evidence whether or not the Southern Bluefish Tuna population was threatened or depleted. Therefore it was wrong to make an order effecting the total allowable catch. Judge Warioba also took issue with the Tribunal making an order that included non-members when the dispute was between members. Therefore the order should have been confined to the disputants who were members of the 1993 Convention. No doubt, the members would continue to negotiate and cooperate with non-members, but that was not an issue that the Tribunal was required to address. This issue should have been left to the main arbitration and not determined in an application for injunctive relief.22 Judge Eiriksson Judge Eiriksson took issue with the Tribunal ruling that the parties to the dispute refrain from making decisions and acting in ways that would ‘aggravate’ the dispute as they move forward with arbitration of the case.23 Not only is this a policy that states recognize, but it puts additional pressure on states to think about consequences that will likely stall possible solutions and arguments in preparation for adjudication.24Making general orders such as this, binding in international law are unsettling as it is too broad to contemplate and comply with. Similarly, the Tribunal’s order that the parties not take any action that could compromise the decision by the main arbitral tribunal was too broad to be binding in international law. Judge Eiriksson also stated that interim order regarding total allowable catch was too general and should have been specified to ensure compliance with international law.25 Bibliography Cases Declaration by Judge Warioba. (August 1999). https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_3_4/Declaration.Warioba.27.08.99.E.pdf (4th June 2015). Dissenting Opinion of Judge Eiriksson. (August 1999), para 1. https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_3_4/Dissenting.Eiriksson.27.08.99.E.pdf (4th June 2015). Joint Declaration of Vice-President Wolfrum and Judges Caminos, Marotta Rangel, Yankov, Anderson and Eiriksson. (August 1999). https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_3_4/Joint_Declaration.27.08.99.E.pdf (4th June 2015). Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan). International Tribunal for the Law of the Sea, 27 August 1999, Cases Nos. 3 and 4. https://www.itlos.org/cases/list-of-cases/case-no-3-4/#c595 (4 June 2015). Statutes Convention for the Conservation of Southern Bluefish Tuna, 1993. United Nations Convention on the Law of the Sea,1982. Read More