Marine Protected Areas in the EEZ in light of international and European Community law — Legal basis and aspects of implementation

Abstract

At the international level, Articles 192, 194, and 56(1)(b)(iii) of the United Nations Convention on the Law of the Sea (UNCLOS) oblige the coastal States to protect the marine environment in their own Exclusive Economic Zones (EEZs). The measures required under international law also include the establishment of Marine Protected Areas (MPAs). Regulations in MPAs must be based on the sovereign rights and jurisdictions given to the coastal States by UNCLOS. Admissible restrictions concern most forms of economic uses such as all kinds of installations, the exploration and exploitation of the living and non-living resources in the water, seabed and subsoil. Marine scientific research is also covered by such restrictions, but not navigation, overflight and military use. Specifications of this rather general obligation derive from regional or global international environmental law.

The habitat protection directives under European Community legislation are legally enforceable and sanctions-implying obligations to carry out site protection. In the framework of the sovereign rights and jurisdictions that UNCLOS assigns to the Member States, the latter are obliged by the directives to establish even in their EEZs the coherent ecological network of protected areas known as NATURA 2000. The selection of the sites follows exclusively technical and scientific criteria. The protection system substantially follows Articles 6(2), 6(3), 6(4) and 7 of the Habitats Directive (HD). In accordance with these provisions, plans and projects which may adversely affect the site shall only be agreed to if, in light of the precautionary principle, no reasonable scientific doubt remains as to the absence of such effects. Possible exceptions must strictly follow the provisions under Articles 6(3) and 6(4) of the HD. Protection does not only have to be guaranteed at the time when an authorisation or licence is granted, but permanently.

In Germany, site protection in the EEZ is implemented through Article 38 of the Federal Nature Conservation Act (BNatSchG) and in the form of relevant statutory ordinances on protected areas. Although Article 38(1)(3) BNatSchG refers to the EU legislation, Germany is responsible for the regulation of fisheries within the MPAs. This is because Member States are responsible for issuing site-related protection provisions — even if these have side effects on fishery — when fulfilling their protection obligation under Article 6 HD and Article 4 of the Birds Directive (BD). Based on Article 6 EC Treaty, the Community can also take measures under the Common Fisheries Policy to support the Member States in their efforts to protect species and habitats in their NATURA 2000 sites (e.g., protection of the Darwin Mounds). Thus, the Council of the EU can adopt measures with nature conservation effects, but it can never supersede the Member State in their own responsibility. The restrictions under Articles 38(1)(4) and 38(1)(5) BNatSchG rule out the possibility of abstract and general prohibitions of projects mentioned in that Article (prospecting and extraction of mineral resources, windmills, etc.) but not the duty to carry out an impact assessment. Statutory ordinances with regard to protected areas in the EEZ are to be implemented by use of management plans under the responsibility of the Federal Agency for Nature Conservation (BfN).