4 LEGAL FRAMEWORK
4.3 International legal framework
Legal basis for constructing NSP2 under international law
The United Nations Convention on the Law of the Sea (UNCLOS) defines the rights and responsi-bilities of nations in their use of the world's oceans by establishing guidelines for businesses, the
environment, and the management of marine natural resources, and is generally accepted as a codification of customary international law of the sea /34//35/.
UNCLOS was concluded in 1982 and entered into force in 1994. Denmark ratified UNCLOS in 2003.
Before Denmark’s ratification of UNCLOS, Danish law was in compliance with parts of UNCLOS.
UNCLOS is incorporated into Danish law by several regulations, including, inter alia, the Act on the Protection of the Marine Environment (lov om beskyttelse af havmiljøet) /36/ and the Act on the Continental Shelf and Certain Pipeline Installations in the Territorial Waters /7/, and was fully in-corporated into Danish law in 2005 /37/.
UNCLOS Article 79 entitles all States to establish pipelines on the continental shelf of a coastal State, but UNCLOS also obliges each coastal state to preserve and protect the marine environment.
In short: UNCLOS gives a state the right to lay down pipelines on the continental shelf of a coastal state, but consideration must be given to, inter alia, due respect for the environment.
The sovereignty of Denmark extends to its TW in accordance with UNCLOS Article 2.The rights of Denmark over its continental shelf follow from UNCLOS Article 77, under which Denmark has sov-ereign rights for the purpose of exploring the continental shelf and exploiting its natural resources.
The Danish continental shelf is defined in accordance with UNCLOS Article 76 as comprising the submerged prolongation of the land territory of the Coastal State - the seabed and subsoil of the submarine areas that extend beyond its territorial sea to the outer edge of the continental margin, or to a distance of 200 nm where the outer edge of the continental margin does not extend up to that distance, as well as the seabed and subsoil of similar submarine areas around islands /38/.
The EEZ for Denmark is defined in accordance with UNCLOS Article 57, and comprises areas beyond and adjacent to the TW extending seaward to a distance of 200 nm from the applicable coastal baselines /39//40/.
The outer limit of Denmark’s TW is demarcated by the applicable lines drawn so that the distance from any point on these lines to the nearest point on the baseline is 12 nm measured in accordance with UNCLOS Article 3 and 4 /41/.
Under UNCLOS Article 79, all states are entitled to lay down pipelines on the continental shelf of a coastal state. The right to lay pipelines under UNCLOS Article 79 also applies in the EEZ, cf. UNCLOS Article 58. The coastal state may not impede the laying or maintenance of pipelines, but the coastal state has the right to take reasonable measures for the exploration of the continental shelf, the exploitation of its natural resources and the prevention, reduction and control of pollution from pipelines. Further, the delineation of the course for the laying of such pipelines on the continental shelf is subject to the consent of the coastal state under UNCLOS Article 79.
Hence, UNCLOS establishes the right to lay down pipelines on the Danish continental shelf in ac-cordance with the provisions in UNCLOS.
Legal basis for EIA procedure and public participation under international law 4.3.2.1 Espoo Convention
The Espoo Convention /42/ sets out the obligations for public authorities of Parties to the Conven-tion to assess the environmental impact of certain activities at an early stage of planning. It also lays down the general obligation of states to notify and consult each other on all major projects under consideration that are likely to have a significant adverse environmental impact across boundaries. The Convention was adopted in 1991 and entered into force on 10 September 1997.
The Espoo Convention was implemented in Denmark in 1999 by an administrative order comprising a translation of the text of the Convention /43/, and through implementation of the EIA and SEA Directives /45/.
Under the Espoo Convention, national authorities must notify countries concerned of planned ac-tivities as listed in Appendix I of the Convention, when the activity might have a significant adverse transboundary impact. Appendix I, section 8 comprises large-diameter pipelines for transportation of oil, gas and other chemicals. Hence, the Danish authorities must notify countries concerned of NSP2 and transmit relevant information about the EIA procedure and relevant information on NSP2's possible significant adverse impact in a transboundary context.
In Denmark, the DEPA, on behalf of the Ministry of the Environment and Food, administers the Espoo Convention rules and is the responsible authority for the process of exchanging relevant information from the project owner to the potentially affected countries and possible comments from those countries in connection with the Espoo Consultation Process5. See further in section 4.1.2.
The potential transboundary significant adverse impacts of the proposed NSP2 route on the envi-ronment are assessed in section 14 in accordance with the Espoo Convention.
4.3.2.2 Aarhus Convention
The Aarhus Convention /44/ was adopted on 25 June 1998 in the Danish city of Aarhus. It entered into force on 30 October 2001.
The Aarhus Convention is about government accountability, transparency and responsiveness. The Aarhus Convention establishes a number of rights of the public (individuals and their associations) with regard to the environment. The parties to the Convention are required to make the necessary provisions so that public authorities (at the national, regional or local level) will contribute to en-suring these rights become effective, including access to environmental information, public partic-ipation in environmental decision-making, and access to justice.
The Aarhus Convention is implemented by the EU through the Environmental Information Directive /17/ and the Public Participation Directive /18/. Provisions for public participation in environmental decision-making are furthermore found in a number of other environmental directives, such as the SEA Directive /45/ and the EIA Directive /16/.
The Aarhus Convention was implemented into Danish law in 2000 as Amendments to Certain En-vironmental Acts /46/, including amendments to the Continental Shelf Act and Certain Pipeline Installations in the Territorial Waters /7/, which applies to the NSP2 project and provides for public access with respect to complaints over environmental aspects of a construction permit under the Act. Further requirements for public participation, namely consultation of the EIA for NSP2, follow from the EIA Act /11/.
Public participation in connection with NSP2 is addressed in section 4.4.
Legal basis for main environmental requirements under international law 4.3.3.1 UNCLOS
UNCLOS /34//35/ underlines that states have an obligation to adopt necessary measures for the effective protection of the marine environment from harmful effects that may arise from activities in the seabed, ocean floor and subsoil thereof, beyond the limits of national jurisdiction. This in-cludes, inter alia, measures to prevent interference with the ecological balance of the marine en-vironment, and particular attention must be paid to the need for protection from the harmful effects
5 Until 1 February 2017, these tasks were under the Agency for Water and Nature Management (SVANA).
of activities such as drilling, dredging, excavation, disposal of waste, and the construction, opera-tion and maintenance of installaopera-tions, pipelines and other devices related to such activities.
UNCLOS further contains requirements regarding decommissioning of offshore installations. De-commissioning of pipelines is not covered by UNCLOS; therefore, such deDe-commissioning require-ments do not apply to NSP2.
The requirements under UNCLOS are incorporated into Danish law, see section 4.1.
4.3.3.2 London Convention and Protocol
The London Convention /47/ has been in force since 1975. Its objective is to promote the effective control of all sources of marine pollution and to take all practicable steps to prevent pollution of the sea by dumping of wastes and other matter. In 1996, the London Protocol was agreed to further modernise the London Convention and, eventually, replace it. Under the Protocol, all dumping of waste is prohibited, except for possibly acceptable wastes on the so-called "reverse list" (see Annex I). The dumping of wastes on the “reverse list” requires a permit. The DEPA under the Ministry for the Environment and Food is the granting authority of such a permit.
The requirements under the London Convention and Protocol are implemented in the Act on Pro-tection of Marine Environment, and further fully incorporated into Danish law /48/.
The Act on Protection of Marine Environment /36/ applies, inter alia, to pipelines for the transpor-tation of hydrocarbons produced outside Danish territory within Danish TW and on the Danish continental shelf, and to foreign ships in or outside the Danish EEZ to the extent this is consistent with international law. Therefore, the requirements regarding dumping of wastes under the London Convention and Protocol apply to NSP2 and any ship operations in connection hereto.
4.3.3.3 MARPOL
The International Convention for the Prevention of Pollution from Ships of 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78) /49/, entered into force on 2 October 19836. MARPOL 73/78 and its six technical Annexes address pollution from ships by oil, noxious liquid substances carried in bulk, harmful substances carried by sea in packaged form, sewage, garbage and the prevention of air pollution from ships. Under the Convention, a ”ship” means a vessel of any type whatsoever operating in the marine environment, including hydrofoil boats, air-cushion vehicles, submersibles, floating craft and fixed or floating platforms.
The Baltic Sea is designated as a ”special area” under MARPOL 73/78 Annexes I and V (MARPOL 73/78 Special Area). Therefore, a higher level of protection is required in the Baltic Sea. The Baltic Sea is further designated as a so-called ”SOx Emission Control Area” under MARPOL 73/78, and therefore contains specific requirements for the prevention of air pollution from ships within the Baltic Sea (MARPOL 73/78 Annex VI).
MARPOL 73/78 is incorporated into Danish law through the Act on Protection of the Marine Envi-ronment (Marine Protection Act) /48/ and several administrative orders issued pursuant to the Act /50//51//52/.
During the construction and operation of NSP2, ship operations will be carried out in relation to e.g. pipe-lay, inspection and monitoring. Therefore, requirements under MARPOL 73/78 as incor-porated into Danish law apply to all project vessels, including the stricter requirements for MARPOL
6 As the 1973 MARPOL Convention had not yet entered into force, the 1978 MARPOL Protocol absorbed the parent Convention. The conventions are subsequently amended by the Protocol of 1997 and kept updated with relevant amendments.
73/78 Special Areas and SOx Emission Control Areas, as the ship operations will be carried out in the Baltic Sea.
Prevention of pollution by oil is regulated in Annex I of MARPOL 73/78 as incorporated into section 11 of the Act on Protection of the Marine Environment /48/, whereby any discharge of oil into the Danish sea territory is prohibited. Further, any discharge of oil in the Danish EEZ or outside Danish sea territory may only take place in compliance with the requirements under the Order on Disposal of Oil from Ships /52/.
Prevention of pollution by sewage from ships is regulated in Annex IV of MARPOL 73/78, section 20 of the Act on Protection of the Marine Environment /48/ and the Order on Disposal of Sewage from Ships and Platforms outside Danish Territorial Waters and in the Baltic Sea Area /50/.
Regulations for the prevention of pollution by garbage from ships are contained in Annex V of MARPOL 73/78. “Garbage” means all kinds of victual, domestic and operational waste excluding fresh fish and parts thereof, generated during the normal operation of the ship and liable to be disposed of continuously or periodically, except those substances that are defined or listed in other Annexes to MARPOL 73/78. The Act on Protection of the Marine Environment lays down that dis-posal of garbage, except fresh fish and parts thereof, is prohibited in the Danish sea territory, and in the Baltic Sea, disposal into the sea of food wastes shall be made at least 12 nm from the nearest land /48/.
Annex VI of MARPOL 73/78 regulates the prevention of air pollution from ships and sets limits on sulphur oxide and nitrogen oxide emissions from ship exhausts and prohibits deliberate emissions of ozone-depleting substances. Further, Annex VI establishes specific requirements for ships within the Baltic Sea (SOx Emission Control Area) including, inter alia, that the sulphur content of fuel oil used on board these ships does not exceed 1.5% m/m. Air pollution from ships is regulated in the Order on Prevention of Air Pollution from Ships and Platforms /53/ and the Order on Categorisation, Classification, Transport and Disposal of Noxious Liquid Substances Carried in Bulk issued pursuant to the Act on Protection of the Marine Environment /54/.
Pollution from ships in relation to NSP2 is addressed in sections 13 and 15.
4.3.3.4 Ballast Water Management Convention
The Ballast Water Management Convention /55/ aims to prevent the spread of harmful aquatic organisms from one region to another by establishing standards and procedures for the manage-ment and control of ships' ballast water and sedimanage-ments.
Under the Convention, ships are, inter alia, required to have on board and implement a Ballast Water Management Plan approved by the administration, as well as a Ballast Water Record Book to record when ballast water is taken on board, circulated or treated for Ballast Water Management purposes and discharged into the sea. It should also record when ballast water is discharged to a reception facility in addition to accidental or other exceptional discharges of ballast water.
The Convention was adopted by the International Maritime Organization (IMO) in 2004, and Den-mark ratified it in 2012. The Convention entered into force on 8 September 2017. The ballast water management standards will be phased in over a period of time, and will apply to ships that operate in connection with NSP2 activities.
4.3.3.5 Convention on Wetlands of International Importance (Ramsar Convention)
The Ramsar Convention /56/ is an intergovernmental treaty that provides the framework for na-tional action and internana-tional cooperation for the conservation and wise use of wetlands and their
resources. The Ramsar Convention was adopted in the Iranian city of Ramsar in 1971 and came into force in 1975. The Convention was fully incorporated into Danish law in 1978 /57/.
Under the “three pillars” of the Ramsar Convention, the contracting parties commit to:
• designate suitable wetlands for the List of Wetlands of International Importance (“Ramsar List”) and ensure their effective management;
• work towards the wise use of all their wetlands through national land-use planning, appropri-ate policies and legislation, management actions, and public education;
• cooperate internationally concerning transboundary wetlands, shared wetland systems, shared species, and development projects that may affect wetlands.
Ramsar areas are addressed in section 9.11.
4.3.3.6 Convention on Biological Diversity
The Convention on Biological Diversity (CBD) /58/ entered into force in 1993. The CBD comprises the global framework of actions on biological diversity. In Nagoya in 2010, the CBD adopted a 10-year Strategic Plan to combat biodiversity loss in the world, including concrete targets (the Aichi targets) in order to achieve this overall objective, as well as a protocol on Access to Genetic Re-sources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation (ABS Protocol).
The EU and its Member States are parties to the CBD /59/, and the CBD commitments are reflected in the EU's 2020 Biodiversity Strategy and regulations implemented pursuant to the strategy /60/.
At the EU level, biodiversity is protected by several laws, including the Birds Directive and the Habitats Directive. Further, the regulation on Invasive Alien Species /61/ and Access to Genetic Resources /62/ bring EU law in line with international obligations under the CBD.
According to the EU 2020 Biodiversity Strategy, indirect drivers of biodiversity loss are further addressed through EU legislation that support biodiversity objectives, including the WFD and MSFD, which require the achievement of GES for water ecosystems by 2025 and marine ecosystems by 2020, respectively. Biodiversity indicators have been developed to monitor, assess and report on progress towards the EU Biodiversity Strategy's target. Data and information on EU biodiversity indicators and related EU targets are available at the Biodiversity Information System for Europe /63/.
The CBD applies to NSP2 under Danish law through the Administrative Order on Biological Diversity, as subsequently amended /64/.
4.3.3.7 Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention) The Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention) /65/ came into force in 1982 and aims to conserve wild flora and fauna and their natural habitats.
Special attention is given to endangered and vulnerable species, including endangered and vulner-able migratory species specified in appendices of the Convention.
The obligations under the Bern Convention apply to NSP2 through the implementation of the Con-vention at the EU level by both the Habitats Directive /19/ and the Birds Directive /20/ and by the Order on Conservation of European Wildlife and Natural Habitats /66/.
The relevance of said rules for the Danish section of NSP2 is addressed in sections 9.10, 9.11, 9.12 and 9.13.
4.3.3.8 Helsinki Convention
The Baltic Sea is protected by the Helsinki Convention on the Protection of the Marine Environ-ment of the Baltic Sea Area (Helsinki Convention) /67/. The first Helsinki Convention was signed in 1974 and entered into force in 1980. The Convention was since revised in 1992, and the 1992 Helsinki Convention entered into force on 17 January 2000.
The EU, Denmark and other Baltic Sea region countries7 have ratified the Helsinki Convention, which covers the whole of the Baltic Sea area, including inland waters as well as the water of the sea itself and the seabed. The Convention was incorporated into Danish law in 2011 /68/. There-fore, the Helsinki Convention’s requirements for protection of the marine environment of the Bal-tic Sea area apply to NSP2.
The Helsinki Convention is a regional convention, with HELCOM as its governing body. HELCOM makes recommendations on measures to address certain pollution sources or areas of concern, which are to be implemented by the contracting parties through national legislation. HELCOM also follows up on the implementation of the Helsinki Convention and HELCOM’s recommendations.
HELCOM also provides the cooperation structure that aims to protect the marine environment of the Baltic Sea. The MSFD requires that EU Member States use existing regional cooperation struc-tures in developing their marine strategies, where practical and appropriate. HELCOM is the coor-dinating platform for regional implementation of the MSFD in the Baltic Sea, cf. Ministerial Decla-ration from the HELCOM Moscow Ministerial Meeting held on 20 May 2010.
The Baltic Sea Action Plan (BSAP) /69/ forms the basis for HELCOM’s work. It is a programme to restore the good environmental/ecological status of the Baltic marine environment by 2021, and it sets four goals and objectives for eutrophication, hazardous substances, biodiversity and environ-mentally friendly maritime activities, respectively. HELCOM evaluates how far we have come in achieving GES status by use of indicators and associated quantitative boundaries for specific ele-ments of the marine ecosystem. The BSAP is regularly updated in ministerial meetings and most recently by the Ministerial Declaration from the HELCOM Brussels Ministerial Meeting on 6 March 2018. HELCOM and its members have decided to update and reconduct the BSAP after 2021. The BSAP will be updated in three phases from mid-2018 to 2021.
The Baltic Sea Action Plan (BSAP) /69/ forms the basis for HELCOM’s work. It is a programme to restore the good environmental/ecological status of the Baltic marine environment by 2021, and it sets four goals and objectives for eutrophication, hazardous substances, biodiversity and environ-mentally friendly maritime activities, respectively. HELCOM evaluates how far we have come in achieving GES status by use of indicators and associated quantitative boundaries for specific ele-ments of the marine ecosystem. The BSAP is regularly updated in ministerial meetings and most recently by the Ministerial Declaration from the HELCOM Brussels Ministerial Meeting on 6 March 2018. HELCOM and its members have decided to update and reconduct the BSAP after 2021. The BSAP will be updated in three phases from mid-2018 to 2021.