Beyond territoriality: international regimes for the control of land-based marine pollution
Creators: name: Ellis, Jaye Dana
Publisher: name: University of British Columbia
Year: 2009

description: International law since the Peace of Westphalia has focused on the definition and maintenance of physical and conceptual boundaries in international society. States have relied on international law to protect their independence and autonomy, only to discover that domestic policies and activities can have impacts beyond state territory with which neither individual states nor international law as traditionally conceived are equipped to deal. Such is the case with land-based marine pollution, which, because of its inherently transboundary nature, poses particular difficulties to international law. Land-based sources, being within domestic jurisdiction, are beyond the reach of an international legal system conceived of as a means for maintaining state sovereignty and territorial integrity. What is required is a basis upon which international law may bridge the gap between domestic and international spheres. The international regime offers possibilities for developing a division of labour between municipal and international law to address the problem of land-based marine pollution. The land-based pollution regimes considered in this thesis function in the first instance as contextual regimes, in which relevant actors, both state and non-state, are brought together in order to define and frame the problem, gather and exchange information, and work out the basis for a coordinated or cooperative approach to problem-solving. It is through these initial processes that a body of consensual knowledge about land-based pollution may be developed which may then form the basis for understandings of state interests as convergent. Once a consensus about the problem and potential approaches to its solution begins to emerge, it is possible to move on to the elaboration of a legal regime setting out norms for the control of land-based marine pollution. International regimes also help to bolster the legitimacy and effectiveness of international law. Regimes foster legitimacy in that they provide a forum for ongoing dialogue among a range of actors regarding the articulation, interpretation and application of norms. As such, they offer possibilities for the development of common approaches and shared meanings among the actors to whom these norms are addressed. Regimes foster effectiveness by providing, through information-gathering and -dissemination processes, a continuous feedback loop regarding questions of implementation of and compliance with international norms. Furthermore, these regimes operate within an extensive network of international actors. This network provides a basis for the development of a broader consensus on normativity applicable to land-based pollution and, more generally, environmental protection. Regime theory provides an excellent basis for an examination of the role and function of international legal instruments for the control of land-based marine pollution. The regime is capable of bridging functional gaps between international and municipal legal systems, suggesting ways in which international law can move beyond state territoriality.