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ONE OCEAN - ONE SYSTEM
Should the Black Sea and Turkish Strait be treated as a unit?
by Arnd Bernaerts, Hamburg
The Black Sea is a "miniature ocean" with severe ecological problems. The Black Sea region has economic problems. Navigation on the Black Sea faces political problems. The Black Sea's bottleneck concerns international shipping. All problems have to do with the marine environment in one way or another. Black Sea countries could prove that the concern for the marine environment rises above state and national jurisdiction by recognizing that the ocean system cannot be divided, that marine pollution in the sea cannot be divided, and that international shipping should not be divided.
More than any other system, enclosed seas require mutual attention by all bordering countries. Shipping, fishing and tourism are essential for regional development. The population density along the Black Sea coasts is high, as is the degree of industrialization, but the area still has a long way to go in adapting to global competition. In this respect, Black Sea problems and communication on mutual understanding are particularly demanding. It might be necessary to do more than international standards demand. Ocean water masses do not recognize legal boundaries, nor does the water in the Turkish Strait system of the Dardanelles, Marmara Sea, and Bosphorus. During a five-year period, all of the water in the system is replaced either by brackish surface water from the Black Sea or deep-flowing saline water from the Mediterranean Sea on its way to the Black Sea.
Although the environmental state of the Black Sea is verging on collapse from land-based pollution, shipping emerges as a contentious political issue. Over the years, a vast international legal framework on control, liability and compensation has been build up to regulate shipping. Such international regulation is, however, almost totally lacking with regard to land-based pollution. Land-based pollution practically "goes free".
A "one ocean - one system" approach could provide solutions to political and navigational controversies between Turkey and the international/ Black Sea shipping industry concerning access to, travel on, and departure from the Black Sea.
The principle question is whether more "ocean mindedness" can guide the transformation of historical rights, whether based on treaty or from sovereignty, to a better and more widely accepted ocean management concept.
That requires some explanation:
While the Ottoman Empire exercised full national sovereignty over the Black Sea's bottleneck until 1918, its successor Turkey accepted the maritime law principle "freedom of transit and navigation" for merchant ships using the Strait. As of 1936, the legal regime has been governed by the Montreux Convention. Although the UN Law of the Sea Convention (UNCLOS) provides a detailed legal framework for international straits, it does not apply to the Turkish Straits, which are covered by a "long-standing international convention." The Montreux Convention has become widely separated from the mainstream of legal developments and the UNCLOS system of solving international disputes. In the legal field of international straits regimes, none is as bound to the historical concept of the law of the sea as the Turkish Straits.
Environmental concern has opened a new chapter in constraining navigation on the Straits. At stake is the unconditional upholding of the "freedom of transit and navigation" versus more management and discretionary powers for Turkey to safeguard navigation and protect the marine environment in the Straits. The prospect of huge oil transports from the Caspian Sea via the Black Sea and through the Straits spurred the countries concerned into action when Turkey promulgated new "Maritime Traffic Regulations for the Turkish Straits and the Marmara Region" in 1994 and proposed traffic separation schemes to the International Maritime Organization (IMO). Some solutions have been found, but the legal debate on the Straits regime is likely to continue.
The Turkish Straits are excluded from the Black Sea Pollution Convention of 1992 (BSPC). The Montreaux Convention and the BSPC are fully separate legal instruments (Art. 24 BSPC). This is confirmed in Art. 3 BSPC, according to which all conventional provisions are based on "respect for national sovereignty and independence [and] non-interference in internal affairs," but Art. 3 also states that "the Contracting Parties take part in this Convention on the basis of mutual benefit" and are required to protect the Black Sea from pollution by vessels or dumping and to cooperate in combating pollution. Nevertheless, the legal concept for navigating into, on and from the Black Sea shows few traces of ocean mindedness.
One System. Ocean mindedness could be translated as, "Don't divide what belongs together." Some thousands of years ago, Nature connected the Black Sea to the ocean system, tenuously, but nevertheless significantly. The pure fresh-water body disappeared. A direct navigational strait with a water volume of roughly 3,500 km 3 was established. About 660 km 3 flow as surface water from the Black Sea southward to the Aegean, while a volume of 310 km 3 highly saline deep water from the Mediterranean Sea flows through the Straits to the Black Sea basin. There it contributes to the anoxic water comprising 90% of the total water body. Actually, none of the Strait's water is stationary. It passes the Straits, just as ships do, either north or south, only more slowly. The Straits and the Black Sea basin belong to the same natural system.
Sovereign rights. Binding legal agreements do not in themselves pose problems for ocean protection, but as a statement recently expressed: "In the first place, issues of national sovereignty, economic development, and economic security loom large, and states and their governments do not like to be told what they may do or not do in their own territory". But ocean water defies legal territorial concepts. The sea used to be treated as a common property. That changed only recently when coastal states obtained sovereign rights and jurisdiction over a zone of 200 nautical miles toward the open sea. One-third of all ocean space became subject to national jurisdiction. The state boundaries now cross the sea accordingly. As the Black Sea is a small ocean, comprising only one-thousandth of the global oceans, every part of the surface area, water and sea floor of the Black Sea belongs to a territorial sovereign. BSPC, designed to protect the sea from pollution, adamantly places respect for national sovereignty and independence (Art. 3, BSPC) first. It has been observed that "until now international law has primarily made available unilateral and repressive instruments for its enforcement, especially the concept of State responsibility as well as the unilateral mechanisms of restoration and reprisal". While coordination is a prerequisite for BSPC, the Black Sea connection to the ocean system is governed by a fully separate set of rules. A disregard for natural oceanic conditions is obvious. While this is the rule everywhere, the geographic situation here highlights the absurdities. Not only can the oceans not be divided according to legal boundaries, but marine pollution is also no respecter of boundaries. To illustrate:
Straits water (pollution) - Black Sea water (pollution).
Comment concerning water from the Black Sea: The Marmara Sea receives via the natural exchange from the Black Sea roughly 15 times more organic matter than is contained in the sewage discharged from Istanbul.
Comment concerning sewage from the city of Istanbul entering Black Sea deep water:
Quote: Even if tertiary treatment systems are constructed at a cost of approximately 10 billion USD to control the nutrient load originating in Istanbul, will there really be a significant improvement in terms of eutrophication and in terms of the ecological status of the Marmara Sea, despite the nutrient loads brought in by the Black Sea? Unquote
It goes without saying that the latter comment requires first the implementation of an action plan for the Danube before "the discharge of wastewater of Istanbul into the lower layer of the Bosphorus through a system of marine outfalls following primary treatment [will] be an acceptable short term solution." The comments illustrate well the close connection of the "natural" water and the "polluted" water in both areas.
There are efforts, but will they work? At least BSPC establishes a forum for more cooperation. But cooperation is a piecemeal political process requiring unanimous decisions (Art. 20 BSPC) and national jurisdiction execution (Art. 16 BSPC). Moreover, polluted water flowing in and out of the Black Sea and inbound and outbound international shipping are fully excluded from the BSPC. Here solutions can be reached only by means of diplomacy. The number of political and administrative efforts required will hardly permit the thorough and immediate response required by the situation. While the meaning of cooperation is a very general term, it may be useful to address particular Black Sea issues more specifically. Instead of protecting sovereignty, "the emphasis must be on learning about the nature of the problem, the experience of other coastal states in attempting to control land-based pollution," recommended an eminent legal expert recently. Unfortunately, there
is little to learn or copy from. Instead, convincing regional efforts, arrangements and results in pursuit of effective ocean management will bring help and significantly serve as examples elsewhere.
This example could be called a "one ocean" concept for regional navigation.
Of 35,000 ships passing the southern part (Canakkale Straits) and 50,000 ships the northern part (Istanbul Straits), about 75 % is foreign tonnage. While they seek unhampered passage with no delays or requirements beyond international standards and without additional costs, the Turkish Government's concern is for safety of navigation in environmentally sensitive waters.
The opposing interests inevitably establish a situation of conflict and, if not solved, it is likely to continue for a long time. It would hamper solutions in other fields of Black Sea pollution. While there are many political and legal points to argue, this puts the subject in the context of ocean management and the question what "regime" should prevail; in other words, could a "one ocean" approach be convincing and urgent enough to bring about a compromise on otherwise contrary positions.
That leads me to the question of whether the shipping issue is a matter of protection versus economics.
While concern over ocean pollution led to the regulation of oil pollution from vessels in the 1950s, the shipping industry no longer poses the greatest danger to the marine environment. Vessel pollution is highly regulated and controlled, but also the most comprehensively covered pollution source by an international legal framework for damage compensation and insurance. During these four decades, the concern of the industry was the assurance of equality on rights, obligation and enforcement. The underlying question was always fair economic conditions in international trade and access to the trade. It includes equal treatment in all cases of pollution regardless of jurisdiction. Even ship pollution damage assessment should not be excluded: "It is a subject that not only plays a major role for the unification of civil liability, but which at the same time puts unification at risk due to the gaps in present damage definition of unified law and the influence of national environmental policy and national legal views and jurisprudence".
The regional Black Sea economy is particularly sensitive to shipping matters. Thus the Montreux Convention is something the shipping industry and the states reliant on shipping are reluctant to see altered. In addition, of the total vessel source pollution, ship accidents account only for 20% while harbor operations account for more than 50%. As far as accidents are the concern, quick and proper response often counts more than anything else in minimizing the effect of an incident. Ships in transit through the Straits and in the Black Sea constitute a minimal threat to the regional marine environment compared to other sources. Proportions should matter. Land-based pollution, which accounts for 90%, is far more severe.
To reverse the Black Sea environmental situation, the Black Sea countries must have the economic means earned by regional industry and competition in international trade, of which shipping plays an important part. If shipping is required to contribute, it should be the burden of the whole region within a general Black Sea/Turkish Straits concept of ocean and navigation management concerned with the regional marine environment.
What subjects could or should be addressed:
1. Regional organization of "Port State Control". It is the responsibility of the state which has granted a vessel the right to fly its flag (flag state) to identify instances of noncompliance with international standards. While deemed insufficient, coastal states have been given a number of rights, including that of inspection to identify substandard ships. Port State Control is a method of checking the flag state's success in enforcing the provisions of the international conventions covering safety and pollution prevention standards on merchant ships. Comparative agreements have been implemented, although not for the Black Sea. Regional effectiveness could be enhanced by a coordinated geographical coverage organized by and with participation of all countries bordering bodies of water. The most appropriate time and place for any inspection believed necessary to protect the regional seas from substandard ships in international trade is before a ship bound for the Straits leaves a Black Sea port or before the vessel enters the Black Sea. Substandard ships should neither operate in the Black Sea nor be allowed to navigate the Straits. A distinction according to national jurisdiction is counter-productive.
2. Contingency Planning-Response-Equipment. The international instrument available is the IMO Convention of Oil Pollution Preparedness, Response and Co-operation, 1990, while UNEP Conventions and Protocols have developed cooperative programs for dealing with oil and hazardous incidents. Bilateral agreements exist. The following points could be considered:
3. Navigation Management - Pilotage, Tug-assistance, Reporting-system etc. Navigation from and to the Black Sea can often take as much time as proceeding to the Black Sea port of call. From the viewpoint of marine environment protection, any and all precautionary means established must be observed, executed and controlled everywhere throughout the region on the basis of the same set of rules, standards and procedures, as well as subsequent costs, expenses and compensation. Navigation management is a concern of all countries bordering bodies of water based on equal involvement, contribution and redress.
4. One Ocean - One Shipping Jurisdiction. At the very least, the set of civil, administrative and criminal laws regarding pollution and preventive measures must be applicable and enforceable in a uniform manner by one jurisdiction. If that is guaranteed, neither the regional based shipping industry nor shipping in general are likely to complain. Unified laws and fair and equal treatment for their trade, their ships and their crews is all responsible operators are looking for.
The famous principle "freedom of navigation" should not serve to prevent reasonable management of shipping for the sake of preserving the marine environment. But even less should unilateral actions and legislation on the pretext of environmental concern be used to interfere in established rights and obligations of international shipping. No single nation is capable of protecting and preserving the marine environment. No single country can organize a fair balance between the use of the sea by ships and the protection of the sea. Anyone who claims concern in this respect must seek a global or at least a regional solution. Although remote, the Black Sea and Turkish Straits form a system within the global ocean system. Thus this regional basin and its bottleneck provide a unique opportunity to all concerned in putting 'ocean mindedness' and the need of international shipping first.
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