The ‘Rainbow’:

The First National Marine Protected Area Proposed Under the High Seas

[The final version of this article was published in The International Journal of Marine

and Coastal Law, vol. 25 (2010) 183–207]

Marta Chantal Ribeiro*

Assistant Professor of International Law and European Union Law,

Centre for Legal and Economic Research, Faculty of Law, University of Porto,

Portugal

Abstract

The discovery of the ‘Rainbow’, a hydrothermal vent field located in the Portuguese

continental shelf beyond 200 nautical miles, has prompted new thinking in our

understanding of the law of the sea. In 2006, in the context of the OSPAR Convention,

Portugal proposed the nomination of the first national marine protected area under the

high seas. The subsequent acceptance of the proposal by the OSPAR Convention

members makes Portugal a pioneer in the protection of marine biodiversity at an

international level: first, because of the unique location of the marine protected area;

second, because the nomination was accepted at a stage when the process of delineation

of the outer limits of the continental shelf had not been concluded. The new juridical

perspectives stimulated by these facts are addressed in this article.

Key words: Coastal state jurisdiction, hydrothermal vent field, marine protected area,

outer continental shelf, rights of third states.

* e-mail: mchantal@direito.up.pt. I would like to thank David Freestone, Manuel Pinto

de Abreu, Paulo das Neves Coelho and Ricardo Serrão Santos for the assistance and encouragement given to this work on the Rainbow hydrothermal field. This text is an updated and condensed version of the article published in Portuguese: “Rainbow, um exemplo mundial: a primeira área marinha protegida nacional em perspectiva sob águas do alto mar. À descoberta do tesouro do arco-íris”, (2007) 20 Revista

do CEDOUA 47 and 186.

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Introduction

The name may not have been chosen by accident. The ‘Rainbow’ – the name given to

the particular marine ecosystem that is the subject of this paper – conveys the image of a

much sought-after treasure. In the image of an ‘atmospheric’ rainbow, another

conjugation of natural factors has produced a veritable ‘marine’ rainbow in an area of the

Portuguese continental shelf located beyond 200 nautical miles (nm). In fact, because of

its location, the Rainbow hydrothermal vent field also encompasses a treasure of legal

issues. The prospect of the establishment of a marine protected area (MPA)1 in an area of

the continental shelf located beyond 200 nm constitutes an unprecedented phenomenon

in legal theory and practice, both at the national and international level. Consequently,

this study aims to set out and explain the legal issues prompted by the establishment of a

national MPA in such a novel location.

The study is divided into three main parts. First, the framework for the Rainbow

hydrothermal vent field will be provided. Second, the process by which the MPA over

the Rainbow vent field was proposed within the OSPAR Network of Marine Protected

Areas will be described. The underlying legal controversies will be given particular

attention. In particular, the text of the 1982 United Nations Convention on the Law of the

Sea (LOSC)2 does not envisage a process by which the outer limits of the continental

shelf can be defined together with simultaneous protection of marine ecosystems. A

discussion of the solutions for the predictable issues which arise in relation to the

Rainbow MPA and the rights of third States as reflected in the law of the sea will be the

focus of the third and last part.

1 In this study a restricted concept of MPA has been adopted. Only protected areas whose primary objective is the protection of biological diversity qualify as MPA. As an example we use the new concept of protected (terrestrial or marine) area proposed by the International Union for Conservation of Nature (IUCN): “A clearly defined geographical space, recognised,

dedicated and managed, through legal or other effective means, to achieve the long term

conservation of nature with associated ecosystem services and cultural values”. See Nigel Dudley (ed.), Guidelines for Applying Protected Area Management Categories (IUCN, Switzerland, Gland, 2008) 8 and 56. 2 The 1982 Law of the Sea Convention came into force on 16 November 1994; 21 ILM 1261 (1982). In Portugal it came into force on 3 December 1997. See Decree of the President of the Republic 67-A/97 of 14 October 1997, Diário da República I-A 238/5486 (2), and Notice 81/98 of 21 April 1998, Diário da República I-A 93/1731. Diário da República webpage: http://dre.pt/ .

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The ‘Rainbow’, An Oasis of the Deep Sea

Scientific studies of the beginnings of life on Earth identify the high probability that the

first forms of life appeared in the ocean. Hydrothermal vent fields are thought to provide

environmental conditions that closely resemble the ones existing on Earth when the first

living organisms came into being, billions of years ago. Hence, they constitute an

invaluable laboratory, veritable “windows into the evolution of life.” 3

With the discovery, in 1977, of the first hydrothermal vent fields on the Galápagos

Rift, approximately 2,500 metres deep, the ocean depths, once thought to be deserts,

were revealed as bizarre, densely populated and luxuriant ecosystems. The organisms

(including micro-organisms) of the hydrothermal vent fields are not only adapted to

complete darkness and extreme high pressure, but they also survive formidable levels of

toxicity and acidity and inhabit the edges of or proximity to the vents, with water

temperatures near boiling point. In these conditions, life would be impossible for most

species currently living on Earth. However, hydrothermal vent fields shelter millions of

animals, thus becoming what Lyle Glowka has called true “oases of life.”4

Although observation and knowledge of the way hydrothermal vent fields function

are still in their early stages, the scientific, ecological and economic importance of these

ecosystems is already indisputable. The wealth of the hydrothermal vent fields ranges

from their singular biodiversity to the great and growing interest that such organisms

have for medical science and for industry, to the mining of economically attractive

3 Ricardo Serrão Santos, Ana Colaço and Sabine Christiansen (eds.), Planning the

Management of Deep-sea Hydrothermal Vent Fields MPA in the Azores Triple Junction

(Proceedings of the workshop), (Arquipélago, Life and Marine Sciences, Supplement 4, 2003) 19. 4 Lyle Glowka, “Beyond the Deepest of Ironies: Genetic Resources, Marine Scientific Research and International Seabed Area”, in: Jean-Pierre Beurier, Alexandre Kiss and Said

Mahmoudi (eds.), New Technologies and Law of the Marine Environment (Kluwer Law International, The Hague - London - Boston, 2000) 78. Other fortunate expressions can be cited: “oases of the abyss”, Pedro Ré, “Deep-sea Hydrothermal Vents: ‘Oases of the Abyss’”, ibid., at 67 ; “oases in the desert of the deep oceans”, Frida M. Pfirter-Armas, “Protection and Conservation of the Living Resources of the Area”, 2003 (online, http://www.gmat.unsw.edu.au/ablos/ABLOS03Folder/PAPER5-3.PDF) 5.

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minerals – particularly, polymetallic sulphides.5 In the near future, it is because of the

unique life forms they shelter that hydrothermal vent fields may be seen to be “the next

great prize in the global race for natural resources.”6 The organisms of the hydrothermal

vents open up a new world of possibilities in biotechnology, as well as commercial

opportunities, that cannot be ignored. The race for ‘biological gold’, that is, for genetic

resources, generated in marine depths is one of the obsessions of the beginning of the

21st century.

Bearing in mind that the living organisms of hydrothermal vent fields are their most

immediately exploitable and lucrative resource,7 the protection of these ecosystems from

plunder is an important current and logical concern.8 For the seabed beyond national

jurisdiction – defined by LOSC as ‘the Area’ – exploitation is a real threat, for the simple

reason that the sole concern of the LOSC regime is the regulation of the exploitation of

non-living resources, under the principle of ‘common heritage of mankind’ (Articles 133

and 136, LOSC), managed by the International Seabed Authority (ISA).9

In Portuguese maritime areas, and more specifically in the areas of the Autonomous

Region of the Azores, five hydrothermal vent fields (Lucky Strike, Menez Gwen,

Rainbow, Saldanha and Seapress) have been discovered since 1992. These vents occur

there because of the location of the Region in the Mid-Atlantic Ridge, at a tri-junction

point where three tectonic plates (the European, the African, and the American)

converge. The Rainbow vent field was found in 1997 (36º13.10’N; 33º54.35’W) and is

the most distant of the Portuguese vent fields. It is the only one that is situated in an area

of the continental shelf beyond 200 nm, approximately 235 nm from the coastal

baselines. The Rainbow occupies a small area – 250 x 60 metres (1.5 square kilometres)

– at depths ranging from about 2270 to 2320 metres. The value, interest and curiosity

that hydrothermal vent fields generate, particularly the more accessible ones such as the

Rainbow, can give rise to a number of uncoordinated initiatives and pressures that may

jeopardise the balance of its fragile ecosystems. As a result, it comes as no surprise that

5 David Kenneth Leary, International Law and the Genetic Resources of the Deep Sea, (Martinus Nijhoff Publishers, Leiden - Boston, 2007) 142 and 158. 6 W. J. Broad, “Hot Bugs, Minerals, and Other Deep-Sea Riches”, International Herald Tribune, 18 November 1993, in Glowka, op. cit., supra note 4 at 76. 7 It should be noted that licences have already been granted for the exploitation of the mineral resources of inactive vents in the Pacific Ocean off the coast of Papua New Guinea. 8 Glowka, op. cit., supra note 4 at 76. 9 Hence the well-known expression by Lyle Glowka, “the deepest of ironies” (1995), ibid.

5

as soon as the opportunity for the establishment of a protected area in the Rainbow

hydrothermal vent field presented itself, it was readily taken. The move has not been

uncontroversial.

The Proposed MPA under the OSPAR Framework

Despite being located at great depth, the Rainbow is regarded as an accessible

hydrothermal vent field, and has been the subject of a number of scientific and even

tourist expeditions. The effects that these human activities may have on such a small and

vulnerable ecosystem are yet to be determined. It is very likely that, for example, the

collection of samples (e.g., chimneys, rocks, species, chemicals), the artificial light, the

accidental transplanting of species between locations by submersibles, the movement of

remotely operated vehicles, and the deposit of debris, may all have a negative impact on

the ecosystem.10

Until 2006 the Rainbow vent field was regarded by the international community as

an ecosystem located in ‘the Area’, and thus outside of Portuguese jurisdiction. The

ongoing scientific research and the threat of other types of anthropogenic pressure (e.g.,

exploration for the biotechnology industry, exploitation of minerals, and tourism) had for

some time suggested the need for the establishment of a protected area under

international law. For this purpose, the World Wide Fund for Nature (WWF) developed

the option of taking action under the auspices of Annex V of the OSPAR Convention in

order to use the Rainbow as one of the first examples of an MPA created in an area

beyond national jurisdiction.

WWF Action within the OSPAR Convention: The Assumption of the Location of the

‘Rainbow’ Field in the Area

The Convention for the Protection of the Marine Environment of the North-East Atlantic

(OSPAR Convention), of 22 September 1992,11

includes within its jurisdictional area an

10 For further details see, notably, Tullio Scovazzi, “Mining, Protection of the Environment, Scientific Research and Bioprospecting: Some Considerations on the Role of the International Sea-Bed Authority”, (2004) 19 IJMCL 383, 396. 11 The OSPAR Convention came into force on 25 March 1998 (in Portugal as well); 32 ILM 1069 (1993). As regards Portugal see Decree 59/97, of 31 October 1997, Diário da

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area of the high seas that makes up approximately to 60 percent of the total OSPAR

‘maritime area’.12

After Annex V on the Protection and Conservation of the Ecosystems

and Biological Diversity of the Maritime Area came into force on 30 August 2000, 13

the

Contracting Parties agreed to the objective of establishing an extensive and consistent

network of MPAs by 2010 (the so-called OSPAR Network of Marine Protected Areas).

This objective is also part of the global commitments of the Contracting Parties to the

Convention on Biological Diversity (CBD), of 20 May 1992,14

and reflects the challenge

set by the Plan of Implementation of the World Summit on Sustainable Development,

held in Johannesburg in September 2002, whereby representative networks of MPAs are

to be established by 2012. 15

The ‘2010: OSPAR Network of MPAs’ goal is not specifically included in the text of

Annex V of the OSPAR Convention. The generic and vague provisions in Annex V rely

on the goodwill of the Contracting Parties for implementation. It was not until June 2003

at their Bremen Meeting that the Contracting Parties approved, within the OSPAR

Commission, Recommendation 2003/3 on a Network of Marine Protected Areas that

stipulated the ‘2010’ time goal.16

Its implementation in the maritime areas under coastal

State jurisdiction is totally dependent on national initiatives. Recommendation 2003/3

was subsequently completed with a set of more technical instruments designed to help its

República I-A 253/5957, and Notice 122/98 of 30 June 1998, Diário da República I-A 148/2929. 12 See Article 1(a), OSPAR Convention. 13 Annex V was adopted on 23 July 1998, available online at: http://www.ospar.org/html_documents/ospar/html/OSPAR_Convention_e_updated_text_2007.pdf#nameddest=annex5 . 14 See Article 8 and Article 22(2), CBD (31 ILM 818 (1992); in force 29 December 1993); and the so-called Jakarta Mandate on Marine and Coastal Biological Diversity (Decision II/10 (COP 2 - 1995) and Decision IV/5 (COP 4 - 1998) of the Conference of the Parties to the CBD), available online at: http://www.cbd.int/decisions/cop/ and http://www.cbd.int/decision/cop/?id=7083 and http://www.cbd.int/decision/cop/?id=7128 . 15 See paragraphs 30 and 32(a) and (c), Plan of Implementation of the World Summit on Sustainable Development, available online at: http://www.un.org/esa/sustdev/documents/WSSD_POI_PD/English/WSSD_PlanImpl.pdf . 16 Meeting of the OSPAR Commission, Bremen, 23-27 June 2003, OSPAR 03/17/1-E, Annex 9, available online at: http://www.ospar.org/content/content.asp?menu=00180302000011_000000_000000 and http://www.ospar.org/documents/DBASE/DECRECS/Recommendations/or03-03e.doc .

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execution. Particularly relevant was the Initial OSPAR List of Threatened and/or

Declining Species and Habitats, subsequently updated, whereby ‘the oceanic ridges with

hydrothermal vents/fields’ were considered a habitat deserving priority protection.17

In March 2005, the WWF launched a formal nomination of the MPA of the Rainbow

vent field to the OSPAR Commission.18

It was assumed at that time that there was no

national jurisdiction over the Rainbow vent field and that it was located in the Area. The

initiative was in fact explicitly presented as the “first proposal of a potential pilot high

seas MPA in the OSPAR Maritime Area:” in other words, an MPA located under waters

(including the seabed) beyond national jurisdiction. The proposal was expected to initiate

the creation of a representative set of high seas OSPAR-MPAs in the North-East Atlantic

Ocean.19

The aim of managing the Rainbow vent field MPA within OSPAR was to set a

good example of regional cooperation to be copied by others. The creation of the MPA

was intended to achieve the following objectives: preserving the unique and vulnerable

ecosystem of the Rainbow vent field; monitoring the state of the ecosystem; ensuring the

coordinated conduct of scientific research (that is, ensuring long-term sustainable

scientific research); following the precautionary principle, preventing unsustainable

damage caused by other human activities; and ensuring that the increasing scientific

knowledge contributes to public education.

It should be emphasised that the need to protect the Rainbow ecosystem and

coordinate research activities had been accepted by the scientific community for a

number of years. In 1998, a French vent scientist had made a proposal aiming at

converting the vent field into an “ecological and scientific vent reserve”. The proposal

was publicly made on the ‘InterRidge’ web database. With the same objective of

safeguarding hydrothermal vent fields, a code of conduct for responsible science was

suggested, which culminated in the InterRidge Statement of Commitment to Responsible

Research Practices at Deep-Sea Hydrothermal Vents, signed 17 February 2006. This

‘voluntary code’ partly inspired the adoption of the OSPAR Code of Conduct for

17 The Initial OSPAR List of Threatened and/or Declining Species and Habitats, last update: Reference Number 2008-6, OSPAR Commission. 18 See Article 11 of the OSPAR Convention concerning the admission and participation of observers. 19 See Sabine Christiansen (ed.), Marine Protected Areas in areas beyond national

jurisdiction. Proposed High Seas MPAs in the North East Atlantic by WWF 1998-2006 (WWF, Germany, 2006). See the following webpages as well: http://www.ngo.grida.no/wwfneap/Projects/MPAmap.htm and http://www.ngo.grida.no/wwfneap/Publication/subm.htm#Osparmashfollowup2005 .

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Responsible Marine Research in the Deep Seas and High Seas of the OSPAR Maritime

Area.20

Portuguese Jurisdiction over the ‘Rainbow’ Vent Field: A Summary of the Underlying

Legal Controversy

Fate would have it that, in the same year (2005) that the WWF presented its proposal, the

Task Group for the Extension of the Portuguese Continental Shelf (EMEPC) was created

in Portugal. Furthermore, on 25 March 2006, Annex V of the OSPAR Convention came

into force in Portugal.21

Although the process of delineation of the outer limits of the

Portuguese continental shelf was still a long way from completion, the hydrographic,

geological and geophysical studies of the continental margin of Azores already indicated,

with enough certainty, that the Rainbow vent field was located on the extended

Portuguese continental shelf.

Article 77(3), LOSC, provides that: “The rights of the coastal State over the

continental shelf do not depend on occupation, effective or notional, or on any express

proclamation.” One may conclude therefore that jurisdiction over the Rainbow site

belonged to Portugal, regardless of the stage of the international process leading up to

the determination of the outer limits of the continental shelf. In fact, unlike the exclusive

economic zone (EEZ), which requires an express declaration by the coastal State22

before it can enjoy and exercise the sovereign rights and jurisdiction there that LOSC

Article 56 confers, the sovereignty of the State over the continental shelf is inherent and

does not require a specific legal claim.

On this matter, it is suggested that the ‘rights’ in LOSC Article 77, that is, rights for

the purpose of exploring the continental shelf and exploiting its natural resources, are

accompanied by a ‘duty to protect and preserve the marine environment’. This is the best

interpretation of Part XII of LOSC (especially Articles 192, 193 and 194(5).23

In fact, if

20 OSPAR Commission, OSPAR 08/24/1, Annex 6, (Reference number: 2008-1). 21 The amendments to the OSPAR Convention included in Annex V and Appendix no. 3 were approved by the Portuguese government on 19 December 2005 (Decree-Law 7/2006 of 9 January 2006, Diário da República I-A 6/163). The ratification was completed on 23 February 2006 (Notice 578/2006 of 5 May 2006, Diário da República I-A 87/3249). 22 See Article 57, LOSC. 23 Read in conjunction with the similar obligation in relation to the Area, namely with the system established in Article 145(b), and Article 162(x), LOSC.

9

the State possesses rights of sovereignty for the purposes of exploration and exploitation

of natural resources, including sedentary species (under Article 77(1) and (4), LOSC),

then the State also has the duty to protect and preserve the species, habitats and

associated ecosystems, notably through the creation of MPAs. Article 194(5), LOSC,

requires that “The measures taken…” should include such actions.24

This interpretation

is supported by ‘soft law’, notably by the resolutions of the General Assembly of the

United Nations regarding ‘Oceans and the Law of the Sea’, especially since 2002. 25

It is surely not correct to adopt a restrictive interpretation of LOSC Article 77(3) and

apply it only up to the 200-nm limit. Such an understanding would restrict the scope of

the Article, making it applicable only in cases where a State could formally declare a

200-nm EEZ. Such an interpretation is not supported by Article 77(3) itself, because it

makes no distinction, when compared with what is set out in LOSC Article 76(1),

between the situations in which the continental shelf reaches the limit of 200 nm, and the

situations in which the continental shelf goes beyond that limit. Such a distinction would

not make sense. In all fairness, it is not the powers of the State over the zones of the

continental shelf located beyond 200 nm that are undetermined, but only the limits of the

area subject to those powers.

24 In this sense, see David Freestone, “The Conservation of Marine Ecosystems under International Law”, in Michael Bowman and Catherine Redgwell (eds.), International Law

and the Conservation of Biological Diversity (Kluwer Law International, London - The Hague - Boston, 1996) 103; Rüdiger Wolfrum and Nele Matz, “The Interplay of the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity”, (2000) Max

Planck Yearbook of United Nations Law 445, 451-452, 463, 466 and 478; Daniel Owen, “The Application of the Wild Birds Directive Beyond the Territorial Sea of European Community Member States”, (2001) 13/1 Journal of Environmental Law 39, 62-67 and 76. Some authors argue that, from the perspective of the original connection of the concept of living resources to fishing, microbial genetic diversity (the basis of the trophic chain) found, for example, in hydrothermal vent fields, is excluded from the LOSC system. However, from the point of view of the general duty of protection of the environment, micro-organisms are indirectly but necessarily included within the scope of the LOSC. See Wolfrum and Matz,

ibid. at 446; Scovazzi, op. cit., supra note 10 at 400-401. 25 See Resolution 57/141 of 12 December 2002, paragraphs 50, 51, 53 and 56; Resolution 58/240 of 23 December 2003, paragraphs 51 and 54; Resolution 59/24 of 17 November 2004, paragraphs 68 and 70; Resolution 60/30 of 29 November 2005, paragraphs 73-75; Resolution 61/222 of 20 December 2006, paragraphs 96-98; Resolution 62/215 of 22 December 2007, paragraphs 111-112; and Resolution 63/111 of 5 December 2008, paragraph 134, all, available online at: http://www.un.org/Depts/los/general_assembly/general_assembly_resolutions.htm .

10

Therefore, considering all of this, the first conclusion is that once a State formally

expresses, at an international level, the desire to define the outer limits of its continental

shelf, which have been ascertained to be located beyond 200 nm, it is open to that State

to exercise all the rights and duties established by the LOSC in the areas concerned. If a

mandate voluntarily assumed by the international community (such as one that may be

within the scope of a regional organization) already exists for the defense of the

ecosystems located in those areas, this mandate would immediately cease. In the current

stage of evolution of the law of the sea and also of the structure of the international

community, the environmental jurisdiction should be recognized as belonging to the

coastal State, which must have the competence to protect biodiversity and create MPAs,

even if that recognition depends on the subsequent confirmation of the limits of the

extended continental shelf. The theoretical arguments underlying the recognition of the

jurisdiction of the coastal State in these conditions are discussed below.

The enlargement of the powers of the coastal State enshrined in the LOSC originated

from purely economic motives: the exploitation of natural resources. However, the

growing paradigm of environmental protection, under which the marine environment is

regarded as a ‘common good’, means that the reconciliation of the two concepts

‘exploitation vs. protection’ is also necessary in the marine space. The duty to protect the

marine environment was defined as the exact corollary of the recognition of the

sovereignty of the States over the marine resources (Articles 192 and 193, LOSC).

Consequently, if the State has that duty, it also has the right to claim its competence to

exercise that duty and have it respected in all of the maritime areas under its

jurisdiction.26

Recognition of the environmental jurisdiction of the coastal State on the continental

shelf beyond 200 nm, even when the definition of its limits is not yet concluded, is the

only correct solution in the current stage of evolution of the law of the sea. There is still

no global international body assigned to ensure the protection of marine biodiversity,

especially through MPAs, in the areas beyond national jurisdiction. The creation of the

ISA was far from this purpose, and whatever exists at a regional level are basically joint

state efforts.27

Although the continued pursuit of this path is welcomed and the efforts of

26 This is known as the horizontal enforcement of Part XII, LOSC. 27 E.g., Annex V of the OSPAR Convention and Protocol concerning Specially Protected Areas and Biological Diversity in the Mediterranean, of 10 June 1995; the latter available online at:

11

regional cooperation are promoted, the contemporary truth is that regardless of the

maritime area in question, it is in the State that we find the ‘headquarters’ for the

protection of marine biodiversity. It is the State, with its operational tools, that feeds the

entire effort of international cooperation and, even, the supranational experience of the

European Union. In light of the scope of the present study, the following may be

asserted: the awareness that the protection of marine biodiversity is a common concern

of humankind (e.g., CBD, preamble) does not subvert the state-centric logic, and also

does not subvert the main role that the coastal State should exercise in the maritime areas

under national jurisdiction. On the contrary, it is the responsibility of the coastal State to

ensure the achievement of the common interest. 28

All this understanding converges with the views of Alexandre Kiss and Jean-Pierre

Beurier, who take the position that, at the level of international environmental law, there

is an evolving process of substitution of the individual interests of States and associated

sovereign rights by the idea of collective interest.29

It will be from that collective interest

that the international community will give functions back to the State. This evolution,

predicted by George Scelle in his thesis on the “functional dual role”,30

may lead to the

transformation of the role of the State at environmental level into “simple agents that

carry out”, “guards” or “trustees”; that is, “a trustee that, in good faith, must manage and

safeguard the object of the trust, as well as make it productive”.

The emergence of this “Copernican revolution” in the marine environment is present

in LOSC Article 192 which – in a possible reading – establishes the duty of the State to

exercise an environmental competence in the service of the collective interest or, in other

words, of the common interest of humankind.31

Nevertheless, the LOSC as a whole does

not portray this idea in its most radical form. It is not present in the enumeration of the

specific competences attributed to the coastal State, and the LOSC does not envisage

situations in which the international community would have authority over

http://www.unepmap.org/index.php?module=content2&catid=001001001 and http://195.97.36.231/dbases/webdocs/BCP/ProtocolSPA9596_eng_p.pdf . 28 In this sense, see José Manuel Pureza, O Património Comum da Humanidade: rumo a um

direito internacional da solidariedade? (Edições Afrontamento, Porto, 1998) 286-288. 29 Alexandre Kiss and Jean-Pierre Beurier, Droit International de l’Environnement (3e. éd., Éditions A. Pedone, Paris, 2004) 22-23. 30 Translation of the French expression: “dédoublement fonctionnel”. 31 See Myron H. Nordquist (ed.), United Nations Convention on the Law of the Sea, 1982. A

Commentary (Martinus Nijhoff Publishers, Dordrecht - Boston - London, vol. IV, 1990) 46-49.

12

environmental actions by States. Thus, the perspective of a “functional dual role” in the

framework of Part XII of the LOSC is especially valuable to strengthen the coastal

State’s right of intervention to preserve marine biodiversity in the areas under its

jurisdiction or, going even further, in the areas that relate to those under its jurisdiction

(e.g., the water column superjacent to the areas of the continental shelf located beyond

200 nm).32

As regards the Rainbow example, in the light of what is laid out in the LOSC, the

recognition of the environmental jurisdiction of the coastal State, although conditional

upon final determination that the area is part of its extended continental shelf, is the only

interpretation compatible with the current law of the sea regime.

From this understanding other conclusions ensue. After the process for the

establishment of the outer limits of the continental shelf beyond 200 nm has been

submitted to the Commission on the Limits of the Continental Shelf (CLCS) and

ultimately concluded, the rights and powers recognized as pertaining to the coastal State

in LOSC Article 77 must be reasonably exercised under the following terms:

- First, the coastal State must exercise restraint regarding decisions on

exploitation of the living resources of its continental shelf beyond 200 nm.

Therefore, it is possible to defend a kind of duty of ‘standstill’ on the part of the

coastal State until the limits are confirmed. Fishing by third States for sedentary

species on the outer continental shelf should cease. Theoretically, when dealing

with mineral resources, in light of what is established in LOSC Article 82,33

the

exploitation by the coastal State should not even be considered. In the unlikely

event that the ISA is involved in any activity on the outer continental shelf, it

would have to immediately suspend any activity planned.34

Consequently, the

coastal State should inform, as soon as possible, the proper international or

regional bodies of the sovereignty it holds (even if subject to subsequent and

ultimate confirmation) over the resources of the proposed extended areas of the

continental shelf.

32 In this sense, see Daniel Owen, The powers of the OSPAR Commission and coastal State

parties to the OSPAR Convention to manage marine protected areas on the seabed beyond

200 nm from the baseline (WWF, Germany, Frankfurt am Main, 2006) 40. 33 Article 82, LOSC, is related to ‘payments and contributions with respect to the exploitation of the continental shelf beyond 200 nautical miles ’. 34 In this sense, see Article 134(4), LOSC: “Nothing in this article affects the establishment of the outer limits of the continental shelf in accordance with part VI”.

13

- Second, in terms of environmental jurisdiction, that is, of the protection of the

ecosystems and biodiversity in general, the coastal State can and should

exercise immediate power, utilising the precautionary principle. Notably, it can

and arguably should create MPAs or propose their nomination within the

framework of international instruments, as is the case for Annex V of the

OSPAR Convention. In the extended areas of the continental shelf, it is the

coastal State that has exclusive environmental jurisdiction, even at a stage

where there is still no ultimate confirmation of the limits proposed. It should be

highlighted that the attribution of the environmental jurisdiction to the coastal

State also benefits from the other powers that the coastal State may exercise in

other fields (e.g., authorization of marine scientific research projects).

The Claim of Portuguese Jurisdiction over the ‘Rainbow’: A Successful Process

At the national level, the awareness of the need to protect the Rainbow vent field resulted

from work previously developed by the WWF in collaboration with, notably, the

scientific community of the Autonomous Region of Azores. Consequently, the question

of legitimacy to conduct the process evolved peacefully. When Portugal realized the

changed legal situation in relation to the Rainbow vent field, it did not create any

disruption to the relationships and work that had been painstakingly built in previous

years; there would be nothing to profit from in that. In fact, Portugal did not question the

opportunity of going forward with the creation of an MPA within the OSPAR

framework. The only major change related to the way in which the seabed where the

Rainbow is located was classified. While it had previously been classified as the

international seabed (i.e., the Area), now Portugal claimed jurisdiction over this shelf

area and leadership of the process. Inevitably there was therefore a major shift in the

legal regime applicable to the vent field.

The reasons invoked by the WWF for the designation of an MPA addressed

precaution and coordination of the scientific research; these became the concerns of

Portugal, even before the completion of the process to determine the outer limits of the

14

continental shelf. The creation of an MPA in the Rainbow works as a kind of “ecological

insurance”35

and that fact was not underestimated.

In January 2006, Portugal announced publicly that the Rainbow vent field, in spite of

being outside the 200-nm limit, was on its continental shelf, which meant that it held

environmental jurisdiction over it. Afterwards, Portugal declared that it was going to

propose, as a Contracting Party of the OSPAR Convention, the nomination of the

Rainbow hydrothermal vent field to the OSPAR Network of MPAs.36

The official

proposal was made at the meeting of the Working Group on MPAs, Species and Habitats

(MASH) that took place in Horta (The Azores), from 2-5 October 2006.37

38

The acceptance of the proposal and the recognition of Portuguese jurisdiction over

the Rainbow within the OSPAR framework were achieved in June 2007 in the OSPAR

report on the MPA Network.39

In this report, two issues were highlighted. The first was

the fact that the Portuguese proposal was the only one presented so far of an MPA

located on the continental shelf of a Contracting Party beyond 200 nm, under waters with

high-seas status. The second issue was that the members of the OSPAR Convention

recognized Portuguese jurisdiction even though the process of delineation of the outer

limits of the Portuguese continental shelf was still in progress. The recognition of

Portuguese jurisdiction over the Rainbow is truly a legal treasure.

35 Robert Costanza and Francisco Andrade (eds.), Ecological Economics and Sustainable

Governance of the Oceans (Fundação Luso-Americana para o Desenvolvimento, Instituto do Mar, Liga para a Protecção da Natureza, Lisbon, 1998) 36. 36 See the document Nomination of the Rainbow Vent Field as an OSPAR MPA, ICG-MPA 06/8/2 (L), Gothenburg, 24-26 January 2006, available online at (under request): http://www.ospar.org/v_meetings/browse.asp?menu=00550520000000_000000_000000 37 Statement on the Jurisdiction of the Rainbow Hydrothermal Vent Field. See the document MASH 06/510-E, OSPAR Commission, available online at (under request): http://www.ospar.org/v_meetings/browse.asp?menu=00550520000000_000000_000000 . 38 For the reconstitution of the process see also the following webpages: http://www.ngo.grida.no/wwfneap/Publication/subm.htm#Osparmashfollowup2005 and http://www.ngo.grida.no/wwfneap/Publication/Submissions/OSPAR2006/WWF_ICG-MPA06_cover.doc and http://www.ngo.grida.no/wwfneap/Publication/Submissions/OSPAR2006/WWF_ICG-MPA06_Annex.pdf (point 3: Status of the location) . 39 See the document OSPAR 07/6/6-E, OSPAR Commission: 2006 Report on the Status of the

OSPAR Network of Marine Protected Areas, OSPAR Commission, 2007, at 6, 12 and 17, available online at: http://www.ospar.org/documents/DBASE/Publications/p00319_OSPAR_MPA_status_report%202006.pdf .

15

In Portuguese marine areas, several important seamounts are located on the

continental shelf beyond 200 nm that are in the same condition as the Rainbow

hydrothermal vent field and equally worthy of protection. These include, for example:

the Altair seamount (Azores), the Antialtair seamount (Azores), the seamounts of the

Mid-Atlantic Ridge north of Azores, and the Josephine seamount (between the Madeira

archipelago and the Portuguese mainland). Consequently, the recognition of Portuguese

jurisdiction over the areas where these ecosystems are located should be immediate,

especially in order to create MPAs and present proposals for their integration into the

OSPAR Network of MPAs.

The recognition of Portuguese jurisdiction over the Rainbow vent field is just the

first chapter of an unfinished story. The acceptance of the jurisdiction is restricted to the

Contracting Parties of the OSPAR Convention and the happy ending still depends on the

satisfactory conclusion of the submission presented to the CLCS.40

The definitive

conclusion of the process will be in itself a sort of ratification or confirmation of the

power of environmental protection taken on by Portugal. Only then will the ‘conditional’

jurisdiction exercised over the continental shelf beyond 200 nm be final. Until then,

Portugal must create a specific system of rules and a management structure (that is, a

management plan) to implement the intention to protect the Rainbow vent field.

‘Rainbow’: Its Significance in the Evolution of the Portuguese Law Applicable to Marine

Protected Areas

Naturally, the integration of a marine area into the OSPAR Network of MPAs entails, for

the proposing State, the adoption of a set of measures on whose compliance with which

the effectiveness and efficacy of the initiative taken depend. According to

Recommendation 2003/3, the Contracting Party must draft a management plan suitable

for the purposes it intends to pursue with the creation of the MPA. Above all, the

Contracting Party must identify the necessary management measures according to the

guidelines approved by the OSPAR Commission in June 2003.41

40 With regard to Portugal, the whole process began on 11 May 2009: see the webpage: http://www.un.org/Depts/los/clcs_new/commission_submissions.htm (at no. 44) . 41 Guidelines for the Identification and Selection of Marine Protected Areas in the OSPAR

Maritime Area, Reference Number: 2003-17, and Guidelines for the Management of Marine

16

Inevitably, compliance with these obligations presupposes the existence of a national

legal framework that supports the designation of the MPA. In this respect, the prospect

of creating a MPA in the Rainbow vent field represents the highlight of the evolution of

Portuguese law regarding protected areas and its enforcement in all maritime areas under

national jurisdiction.

In Portugal, the possibility of creating MPAs in the EEZ and on the continental shelf,

including the areas beyond 200 nm, is established in Law 11/87 of 7 April (Basic Law on

the Environment) and consolidated in the Decree-Law 142/2008 of 24 July (regime of

the National Network of Protected Areas).42

Within the context of the system of regional

autonomy it is mandatory to mention the regulation approved by the Autonomous

Region of Azores regarding the creation of a Regional Network of Protected Areas:

Regional Legislative Decree 15/2007/A of June 25.43

This regulation is in many ways

innovative and remarkable at the level of the conception of the network of MPAs. The

regulation expressly contemplates the creation of MPAs for the protection of

hydrothermal vent fields, seamounts and other vulnerable ecosystems, notably including

cold-water coral reefs (Article 10(2)). The Autonomous Region of Azores has thereby

given proof of a credible commitment to providing a legal response to the challenge of

creating MPAs, thus showing a determination in taking the leap from good intentions,

which fill political speeches, to the complex vision of the world that practical execution

represents.

The Rights of Third States and the Difficulties in Creating a Protective Regime for

the ‘Rainbow’ Vent Field

The responsibility, taken on by Portugal, of protecting the Rainbow ecosystem is huge,

both at the level of prescriptive jurisdiction and enforcement jurisdiction. This section

focuses on the difficulties encountered when adopting the necessary protection measures

established in the management plan (so-called prescriptive jurisdiction). For example,

Protected Areas in the OSPAR Maritime Area, Reference Number: 2003-18, OSPAR Commission. 42 Diário da República I 142/4596. Decree-Law 142/2008 revoked Decree-Law 19/93, of 23 January, whose text was clearer concerning the inclusion of the continental shelf beyond 200 nm. Available at: http://dre.pt/pdf1sdip/2008/07/14200/0459604611.pdf . 43 Diário da República I 120/4034. Available at: http://dre.pt/pdf1sdip/2007/06/12000/40344041.pdf .

17

the high-seas status of the water column superjacent to the Rainbow vent field involves

rights of third States that cannot be overlooked.

In light of the system established by the LOSC, the search for a fair balance between

environmental protection and the rights of third States requires a real cooperative effort,

even if the coastal State has competence to adopt, unilaterally, restrictive protective

measures. The fact that the law of the sea gives this competence to the coastal State does

not mean that the coastal state should not also make considerable efforts to persuade

third States of the reasonableness of its approach, bearing in mind the purposes of a

MPA. This publicity effort may convince third States to comply with the provisions

adopted and, therefore, may help to compensate for the weaknesses of the surveillance

and enforcement regimes. In the depths, where no one is watching, far away, where the

distance invites infringement and the powers of surveillance are unclear, only an intense

diplomatic effort of awareness-raising and the reconciliation of conflicting interests seem

likely to support the enforcement of restrictive protective provisions, for which the

policing is inevitably very fragile.

Events determined that the process of protection of the Rainbow vent field would be

started under international law and then migrate to national law. The fact that the initial

protection was initiated through the OSPAR political framework, in an uncontroversial

manner, is actually an advantage for the task of creating a solid and efficient protective

system for the Rainbow MPA.

‘The State of the Art’

The growing importance of ecological awareness has still not been able to reverse the

rules of a game where economic interests often benefit from a privileged status. The law

of the sea bears witness to this state of affairs. If on the one hand, the duty of the State to

protect the marine environment is proclaimed,44

and the powers of the coastal State are

safeguarded,45

then on the other hand, the rights of third States are protected.46

These

44 By LOSC Articles 192, 193, and, notably, 194(5). 45 See LOSC Article 58(3) and, as a comparison with the case of the continental shelf beyond 200 nm, LOSC Article 87(2), last sentence (“These freedoms shall be exercised by all States (…) with due regard for the rights under this Convention with respect to activities in the Area”).

18

rights, sometimes with a ‘freedom’ status, are not new: note particularly the right of

navigation, the right of fishing, the right of marine scientific research, and the right to lay

cables and pipelines.47

This system affects the reality of MPAs, because in this context the formal

untouchable status of the rights of third States remains. The CBD does not jeopardise

this assumption.48

Similarly, Annex V of the OSPAR Convention maintains the spirit of

compliance. However, within the OSPAR framework, the development of MPAs has

encouraged a solution that, without formally threatening the ‘status quo’ established by

LOSC, invites the use of the mechanisms created by the law of the sea to give new

meaning to the rights of third States when confronted with the purposes of MPAs, in this

21st century.

The relevant provision of Annex V of the OSPAR Convention is Article 4. In

general, whenever the protection of biodiversity of an area requires measures that

conflict with fishing or navigation carried out by nationals of third States (irrespective of

their status as parties to the OSPAR Convention), the Contracting Parties of the OSPAR

Convention and the OSPAR Commission must undertake all efforts of conciliation and

cooperation necessary for their approval. This is especially true if the coastal State is

unable to approve such measures in a unilateral manner, thus having to resort to the

proper international bodies. This process is particularly interesting in cases such as that

of the Rainbow vent field, where the power of the coastal State to act unilaterally in

terms of the regulation of fishing and navigation outside 200 nm is virtually nonexistent.

We must bear in mind that, theoretically, nothing prevents the conclusion of

‘gentlemen’s agreements’ within the OSPAR framework regarding the enforcement of

restrictive measures between the parties. However, the States that are not parties to the

OSPAR Convention would still not be bound. In any case, there are other motives for

Article 4; these are considered below.

46 Articles 194(4) and 78(2), LOSC, are examples of this. As stated in the latter: “The exercise of the rights of the coastal State over the continental shelf must not infringe or result in any unjustifiable interference with (…) rights and freedoms of other States”. 47 For example, see Articles 58(1), 78(2), and 87(1), LOSC. 48 As expressly results from Article 22(2), CBD. Regarding what is established in Article 237, LOSC, it is stipulated that the Contracting Parties shall implement the CBD with respect to the marine environment “consistently with the rights and obligations of States under the Law of the Sea”. For a wise interpretation of Article 22(2), CBD, see Wolfrum and Matz, op. cit., supra note 24 at 475-476.

19

The reasoning of Article 4 of Annex V was taken up in Recommendation 2003/3. In

paragraph 3(3), it is established that, according to the management plan of the MPA

presented by the Contracting Parties and the type of protective measures required,

actions must be developed in order for the measures to be approved, notably:

- When the proposing State has the competence to adopt such measures (all or

some of them), it should initiate the processes under its domestic legislation

(e.g., legislation applicable to MPAs) to establish such measures;

- When a State requires consent from an international organization in order to

adopt such measures or when the adoption of the measures proposed is within

the competence of an international authority or organization, it is up to the State

to take steps in order to obtain such consent or achieve the adoption of the

measures in question.

The action that is asked of the State benefits, when required, from the importance of

the OSPAR structure, translated into action by the OSPAR Commission or into

concerted actions by the Contracting Parties.49

Management Plan for the ‘Rainbow’ and Predictable Conflicts

Focusing now on the practical situation of the Rainbow hydrothermal vent field, and

regarding the problem of the rights of third States, it seems that the difficulties to be

overcome are far fewer. In fact, based on a review of the management plan, it seems that

the greatest contemporary threat to protection of the Rainbow vent field is, ironically,

scientific research.50

As regards freedom of navigation, the protection of living communities of

hydrothermal vents does not entail any limitation on the passage of ships.

Hypothetically, if any relevant disturbance were to take place because of commercial

navigation, the International Maritime Organization would always be the organization to

whom any requests for the adoption of measures should be addressed, such as, for

49 This is derived from the document entitled Strategy of the OSPAR Commission for the

Protection of Biological Diversity and Ecosystems (Reference Number 2003-21), paragraph 4.4(c). 50 Based on the management plan proposed by the WWF. Available at: http://www.ngo.grida.no/wwfneap/Publication/Submissions/OSPAR2006/WWF_ICG-MPA06_Annex.pdf .

20

example, the designation of an ‘area to be avoided’51

or, if justified, the nomination of a

‘Particularly Sensitive Sea Area’.52

As regards freedom of fishing, the vent field is located at a depth of 2270 m, which is

beyond the depth currently reached by fisheries. Consequently, restriction of the fishing

activities in that area can only be justified as a precautionary measure. It should be

stressed that the area where the Rainbow vent field is located is, at any rate, covered by

the prohibition established by Council Regulation (EC) 1568/2005 of 20 September

2005, applicable to the areas of the Macaronesian region (Azores, Madeira, and the

Canary Islands) included within specific geographic coordinates.53

The Regulation aims

to protect the vulnerable ecosystems of the region, such as deep-water coral reefs,

hydrothermal vents and carbonate mounds, from the negative impact caused by certain

nets for demersal fishing. The Regulation only binds the Member States of the European

Union. Apart from the interest in extending the prohibition to third States, the depth of

the location of the Rainbow vent field suggests that this issue does not need to be

discussed further.

As regards the right of laying cables and pipelines, the spirit that guides Article 79(2)

and (3), LOSC, (to which Article 87(1)(c) refers), suggests that the reasons of

environmental protection inherent in the effort to shelter hydrothermal vent fields

constitute sufficient reason to prevent the laying of such cables or pipelines there.

Because the size of the areas to be protected is small, any possible conflict can be easily

resolved by reconciling the intentions of the coastal State with those of any interested

parties.

Therefore, in terms of the rights of third States, the remaining incompatibility concerns

scientific research. In addition to this, other emergent human activities, not specifically

51 See the International Convention for the Safety of Life at Sea (SOLAS), 1974; in force 25 May 1980, 1184 UNTS 2; Regulation 10 (Ships’ Routeing). 52 See IMO Resolution A. 982 (24), adopted 1 December 2005, Revised Guidelines for the

Identification and Designation of Particularly Sensitive Sea Areas, available online at: http://www.imo.org/Environment/mainframe.asp?topic_id=1357 and http://www.imo.org/includes/blastDataOnly.asp/data_id%3D14373/982.pdf . The literature concerning Particularly Sensitive Sea Areas is very rich. As general reference, see Julian Roberts, Marine Environment Protection and Biodiversity Conservation:

The Application and Future Development of the IMO's Particularly Sensitive Sea Area Concept (Ph.D. thesis, University of Wollongong, Centre for Maritime Policy, N.S.W 2006). 53 The Regulation amends Regulation (EC) 850/98 as regards the protection of deep-water coral reefs from the effects of fishing in certain areas of the Atlantic Ocean [2005] OJ L 252/2.

21

contemplated in the LOSC, potentially conflict with the protection of the Rainbow vent

field, such as bioprospecting and tourist submersibles. Although it is not mentioned in

LOSC, bioprospecting as an issue is probably included within the definition of scientific

research. As regards tourism, which could be exercised on the basis of freedom of

navigation, at the moment this activity seems to be merely occasional; it remains to be

seen how this will develop.54

The direct association between the hydrothermal vent field

and navigation in that area leads us to consider that the coastal State may prohibit or

condition tourism for reasons of protection of the ecosystem. However, it would be

advisable to search for a basis of voluntary acceptance of the measures on the part of the

third States that are directly affected. When tourism is associated with scientific research,

the issue becomes one of scientific research.

The Restriction to Marine Scientific Research in particular; the Bioprospecting Issue

It should be noted that the need to protect the Rainbow vent field was originally

defended by the scientific community, at a time when the location of the vent field was

deemed to be in the Area. However, with the recognition of Portuguese jurisdiction over

the Rainbow ecosystem, the legal framework applicable to scientific research is that of

the continental shelf rather than that of the Area. This change is significant.

Marine scientific research must be conducted in compliance with the demands of

protection of the marine environment.55

Furthermore, of all human activities, scientific

research is traditionally the most compatible with the purpose of protection of

biodiversity. The prospect of an unchecked influx of research teams into ‘no man’s’

marine ecosystems, however, has proven that irreparable damage may be caused. This

element must, therefore, also be taken into consideration by the coastal State when it

comes to protecting ecosystems located on its continental shelf. What then is the scope

of coastal State jurisdiction in terms of marine scientific research?

It should be clarified that the kind of research that LOSC refers to generically is ‘pure’

scientific research. ‘Pure’ research entails two cumulative conditions: it must be carried

out exclusively for peaceful purposes and should aim to increase scientific knowledge of

54 See Paul Dando and S. Kim Juniper (eds.), Management and Conservation of Hydrothermal

Vent Ecosystems (Institute of Ocean Sciences, Sidney, 2001), 9, 14, 16 and 31. 55 Article 240(d), LOSC.

22

the marine environment for the benefit of all mankind. 56

The LOSC regulates separately

another kind of scientific research, which is not carried out for the benefit of all

mankind, but rather has specific economic objectives: ‘applied’ scientific research.57

The exercise of coastal State jurisdiction as regards marine scientific research

conducted on the continental shelf is regulated in LOSC Article 246. It establishes, first,

that coastal States have the right to regulate, authorise and conduct marine research;

second, that research shall be conducted with the consent of the coastal State; third, that

coastal States shall, in normal circumstances, grant their consent for marine scientific

research in the case of projects related to ‘pure scientific research’. In order to achieve

this goal, coastal States are expected to establish rules and procedures ensuring that such

consent will not be delayed or denied unreasonably.58

This means that in normal circumstances, and when the pre-established requirements

have been met – which may be similar to the requirements imposed on national scientific

research – the coastal State will have to grant its consent to carry out foreign research

projects.59

The meaning of ‘normal circumstances’ has yet to be defined. It can be

argued, however, that the presence of rare and vulnerable ecosystems means that it is not

a ‘normal circumstance’ and that this therefore relieves the coastal State of the duty to

grant its consent to carry out scientific research projects, regardless of the objectives

pursued. Should this understanding be inadequate, another provision removes the rule of

compulsory consent under specific conditions: namely LOSC Article 246(5).

In accordance with LOSC Article 246(5) (a), coastal States may at their discretion

refuse their consent to carry out a scientific research project conducted by third States or

international organizations, if the project “is of direct significance for the exploration and

exploitation of natural resources, whether living or non-living”. This passage has been

associated with applied science projects, in which biotechnology industry projects are

included.60

As a matter of fact, this case is not really an exception to the rule of

compulsory consent. Rather, it is a true exclusion resulting automatically from non-

56 Article 246(3), LOSC. 57 Article 246(5)(a), LOSC. 58 As regards Portugal see Decree-Law 52/85 of 1 March 1985, Diário da República I 50/518. Available at: http://dre.pt/pdf1sdip/1985/03/05000/05180524.pdf . 59 See Wolfrum and Matz, op. cit., supra note 24 at 458-459. 60 See Wolfrum and Matz op. cit., supra note 24 at 457-458; Scovazzi, op. cit., supra note 10 at 400 and 402.

23

compliance with the requirement that the research should be carried out for the benefit of

all mankind, at least in the short term.

Complementing LOSC Article 246(5)(a) is LOSC Article 246(6), which stipulates that

coastal States “may not exercise their discretion to withhold consent” in relation to

scientific research projects to be carried out on the continental shelf beyond 200 nm,

outside those specific areas which coastal States may at any time publicly designate as

areas in which exploitation or detailed exploratory operations focused on those areas are

occurring or will occur within a reasonable period of time. It is added that coastal States

“shall give reasonable notice of the designation of such areas, as well as any

modifications thereto, but shall not be obliged to give details of the operations therein”.

This restriction on the discretionary power of the coastal State justifies the immediate

publicising of hydrothermal vent fields or of other vulnerable ecosystems as areas where

the State intends to conduct activities, because they house potentially important living

resources, notably in terms of biotechnological exploration. This interpretation goes

beyond the concerns expressed at the time when the precept was formulated, which

related to fishing for sedentary species, but it is consistent with its spirit. It should be

emphasised that the possibility of the coastal State exercising its discretion to refuse its

consent is justified by the safeguarding of its economic interests and not by some other

altruistic environmental concerns. However, would it not be possible for the coastal State

to indirectly manipulate the established mechanism to achieve this purpose?

On the other hand, it may not be worth pursuing this line of reasoning, due to the fact

that there is a possible and paradoxical clash with the principle of good faith.61

Fortunately, the LOSC provides another basis for the discretionary refusal to conduct

scientific research in areas of exceptional biodiversity: namely Article 246(5)(b).

Article 246(5)(b) expresses the commitment of the coastal State to the duty of

protection of the marine environment; it may also be understood as an example of ‘non-

normal circumstances’ justifying the refusal to consent.62

Paragraph (5)(b) establishes

that the coastal State may at its discretion refuse its consent, if the research project

“involves drilling into the continental shelf, the use of explosives or the introduction of

harmful substances into the marine environment”. This regime is applicable to any

61 Article 300, LOSC. 62 In this sense, see Florian H.Th. Wegelein, Marine Scientific Research. The Operation and

Status of Research Vessels and Other Platforms in International Law (Martinus Nijhoff Publishers, Leiden – Boston, 2005), 299.

24

research project, be it applied science or pure science, and is not covered by the spatial

restrictions referred to in LOSC Article 246(6). It can be argued that Article 246(5)(b) is

the most explicit legal basis for the coastal State to restrict, at its discretion, the right to

conduct scientific research when extraordinary environmental conditions occur and when

a protected area has been or is to be established.

In conclusion, respect for the general principle of protection of the marine environment

constitutes a natural prerequisite to the selection of projects and their ultimate approval.

Nonetheless, the compatibility between a scientific research project and the preservation

of a specific environment may be assessed only on a case-by-case basis, notably with the

aim of safeguarding the qualitative aspects of the research, whether pure or applied, in

addition to the quantitative ones.63

If no doubts remain about the powers of the coastal

State, the benefits that may be gained from foreign scientific research should not be

underrated. Furthermore, LOSC Articles 248 and 249 envisage the possibility of the

participation or representation of the coastal State in these research projects. The

significance of the unique life of hydrothermal vent fields advises against, for example,

unreasonable impediments to pure scientific research projects. Even were no other

reasons to be found, the ‘windows’ they provide into the study of the evolution of life

would be justification enough. In practice, a balance must be found between the demands

of protection of biodiversity, the duty of the coastal State to promote and facilitate the

development and the undertaking of marine scientific research, under Article 239,

LOSC, and the interests of the State itself.

Conclusion

The discovery of the Rainbow hydrothermal vent field on the Portuguese continental

shelf beyond 200 nm has prompted new thinking in our understanding of the law of the

sea, in particular concerning the powers of the coastal State. The Portuguese initiative to

protect this ecosystem is a pioneering example of protection of the marine environment

at an international level.

In fact, taking advantage of the framework of the OSPAR Convention, Portugal

proposed the establishment of the first MPA in an area of the continental shelf located

63 For example, over-activity in the areas of hydrothermal fields or excessive collection of samples may result in harmful pressure.

25

beyond 200 nm, thus under waters with high-seas status. Out there, 235 nm off the

Azorean ‘fortunate islands’, a unique and highly vulnerable ecosystem links the

beginning of life on Earth to a legacy of opportunities that, it is hoped, will be inherited

by future generations.64

The significance of the discovery did not fail to attract the

attention of both the scientific community and the Portuguese authorities. The need to

protect this ‘new underwater world’ was swiftly understood, and Portugal did not

hesitate to claim its responsibilities as a coastal State in this process.

In the context of Annex V of the OSPAR Convention, the acknowledgement of

Portuguese jurisdiction over the Rainbow, at a stage when the process of delineation of

the outer limits of the continental shelf had not been completed, was the wisest decision

and the only one that complied with the interpretation of the LOSC that the author

considers to be correct. This approach reflects both the system laid down in LOSC

Article 77(3), and the way in which the LOSC views the commitment of the coastal State

to the protection of the marine environment, as well as the current state of development

of the law of the sea. At the domestic level, the Rainbow case has prompted some

legislative developments aimed at the formal establishment and effective regulation of

MPAs in the areas under coastal State jurisdiction beyond the territorial sea.

The excitement caused by the recognition of Portuguese jurisdiction over the Rainbow

in the context of OSPAR should not, however, obscure some major issues. First, the

acknowledgement of this jurisdiction exists only among the parties to the OSPAR

Convention. Second, the Portuguese jurisdiction will have to be definitively confirmed.

This confirmation is indirectly, but intrinsically, dependent on the successful completion

of the process of delineation of the outer limits of the continental shelf; at least as far as

the incorporation of the Rainbow area is concerned. Third, the understanding that the

establishment of an efficient protective regime of widespread applicability may entail

painstaking diplomatic negotiations as a result of the system of rights of third States

stipulated by the LOSC. Currently, the major activity conflicting with the protection of

the Rainbow vent field is marine scientific research. In this respect, the LOSC may be

considered to grant great latitude of powers to the coastal State, in practice allowing the

discretionary refusal of the development of any kind of research project, whether it be

pure or applied research. Despite the fact that the powers of the coastal State are

indisputable, compliance with the principle of participation by third states in the

64 “Fortunate islands” is the meaning attributed to the name of the Macaronesian region in ancient Greece.

26

discussions on the restrictions that may be applicable to the Rainbow site may prove to

be the safest way to guarantee the reasonableness and acceptance of the decisions.

Other situations of protection of marine ecosystems might occur, where the conflicts

with the rights of third States may be more damaging. They do not necessarily have to be

regarded as ‘Trojan horses’ encroaching upon the ‘freedoms of high seas’. Blatant

disrespect for these ‘freedoms’ would be contrary to the current international regime.65

However, an interpretation of the ‘freedoms’ as absolute and unconditional is equally

incompatible with the present duty of States to protect and preserve the marine

environments – which includes the establishment of protected areas for the preservation

of marine biodiversity, an obligation whose general basis originates in the LOSC itself.

The solution points to a reinterpretation of the meaning of the rights of third States as

a result of growing ecological awareness. At present States are, or should be, acquainted

with the restrictions and constraints that result from international regulations designed to

pursue other objectives, for example, the sustainable use of marine living resources, the

protection of marine mammals, and the prevention of pollution. The international

community is in the process of agreeing to other necessary restrictions and constraints to

ensure that the objectives of MPAs can be achieved. Part of that process will involve

balancing the legitimate rights of third states.

65 Although it should be noted that these freedoms are not unconditional – they carry a number of important associated duties. See David Freestone, “Modern Principles of High Seas Governance: The Legal Underpinnings” (2009) 39/1 International Environmental

Policy and Law, 44-49.