OUTLINE OF THE LEGAL REGIME RELATING TO CYCLOPS
Cyclops is a three year research project funded by the European Commission. The principal objective of the project is to determine, by direct experimentation, whether phosphate is the nutrient which is limiting primary productivity in the Eastern Mediterranean. In addition, the project will determine changes in ecosystem structure that are caused by natural and anthropogenic nutrient addition. Such information is essential for proper management of this vulnerable ecosystem and to promote sustainable development of marine and other resources in the region.
It is the stated aim of this project that:
"The results generated by this project will answer a series of questions of environmental pollution and sustainable development which affect a large number of individual nations bordering the Mediterranean, both within and also outside the EEC. Our work contributes to planning for development and management of the Mediterranean basin, so supporting the Barcelona Convention on the Protection of the Mediterranean Sea of 1976."
The main focus of this project will be two field addition experiments that will introduce a small quantity of phosphate ( 4 - 8 tonnes) and a much smaller quantity of a 'tracer' SF6 ( approximately 200g ) into the international waters of the Eastern Mediterranean Sea.
2. EC Law
The project is funded by the EC and the majority of the Project Partners are employees of higher education or research institutions situated within the EC. EC law is therefore applicable to the project. Furthermore the CYCLOPS partnership have agreed, within the terms of the CYCLOPS contract, to create a summary of all the regulations and directives concerning protection of the marine environment in the Mediterranean that are relevant to the carrying out of the CYCLOPS experiments.
2.1 The legal framework within which the experiments will be performed
2.1.1 The EC Treaty
Important objectives of the EC Treaty which are to be attained by Member States include: (i) sustainable development and (ii) compliance with EC environmental policy.
Article 130r of the EC Treaty, based on the precautionary principle, states that the community`s environmental policy includes "protecting, preserving and improving the quality of the environment." The term 'environment' appears to extend beyond the environment of Member States. Article 6 of the EC Treaty states that the environmental protection requirements of the EC Treaty are to be integrated into the definition and implementation of other EC policies.
The CYCLOPS contract requires the project, as a condition of EC Commission funding, to comply with all relevant EC regulations and directives.
2.1.2 The application of specific EC Directives
No specific EC Directives have application to the Cyclops Project. The application of EC Directives is limited to activities taking place within the territory of Member States and as the project is taking place in international waters, beyond the territorial limits of Member States, such directives cannot apply.
2.2. International Law
The EC is a party to a number of international conventions which have some relevance to the Cyclops Project. The ratification of such conventions by the EC renders them part of EC law. The following conventions are relevant:
2.2.1. The Barcelona Convention for the Protection of the Mediterranean Sea Against Pollution 1976
The Barcelona Convention is concerned to limit the adverse effects of pollution on the marine environment.Under Article 2(a) pollution is defined as "the introduction by man, directly or indirectly, of substances or energy into the marine environment resulting in such deleterious effects as harm to living resources, hazards to human health, hindrance to marine activities including fishing, impairment of the quality of sea water and reduction of amenities." It is submitted that the introduction of phosphate and SF6 into the marine environment, in the quantities referred to in section 1 above will not constitute 'pollution' as defined in the Barcelona Convention.
Article 5 of the convention requires Contracting Parties, including the EC, to take " all appropriate measures to prevent and abate pollution of the Mediterranean sea area caused by dumping from ships".
Article 6 requires Contracting Parties, including the EC, to take "all measures in conformity with international law to prevent, if they can combat pollution of the Mediterranean sea area caused by discharges from ships...".
It is submitted that the introduction of phosphate and SF6 into the marine environment, in the quantities referred to in section 1 above, does not consititute an act of 'dumping' as defined in the Barcelona Convention.
Although the term 'discharge' is not defined in the Barcelona Convention it is submitted that, in reliance on Article 2 (3) (b) (iii) of the 1973 Convention for the Prevention of Pollution by Ships, that the introduction of phosphate and SF6, in the quantities referred to in section 1 above, will not constitute a 'discharge'. Article 2(3) (b) (iii) expressly excludes the "release of harmful substances for the purposes of legitimate scientific research into pollution abatement or control".
Article 3(4) to the Protocol to the Barcelona Convention states that 'dumping' does not include "placement of matter for a purpose other than the mere disposal thereof, provided that such placement is not contrary to the aims of this Protocol". The introduction of phosphate and SF6 into the marine environment does not involve a "mere disposal" but will involve a "placement of matter".
The aims of the CYCLOPS project accord with the aims of the Protocol to the 1976 Barcelona Convention. Whilst the 1976 Barcelona Convention represents the current international law relevant to the CYCLOPS project a new Barcelona Convention has been drafted and is awaiting ratification. Both conventions reflect current EC regulations and directives which are relevant to the CYCLOPS project.
In view of the foregoing provisions the activities comprised in the Cyclops Project will comply with the Barcelona Convention.
2.2.2. Biodiversity Convention 1992
The EC is a party to this convention. As the Cyclops Project will not have "significant adverse effects" (as defined in Article 14 of this convention) on biological diversity it is submitted that this convention will have no application to the project.
2.2.3. Law of the Sea Convention
The EC is a party to this convention Part XII of which concerns the "Protection and Preservation of the Marine Environment".
Article 192 imposes a general obligation to protect and preserve the marine environment.
Article 206 requires Contracting Parties, including the EC, who have reasonable grounds for believing that planned activities under their jusisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, to, as far as practicable, assess the potential effect of such activities on the marine environment.
It is submitted that the convention will not apply to the Cyclops Project
because the Cyclops project will not "cause substantial pollution of or
significant and harmful changes to the marine environment".
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