Considering climate change in the development of marine protected areas

Marine ecosystems are facing a diverse range of threats, including climate change, prompting international efforts to safeguard marine biodiversity through the use of spatial management measures. Marine Protected Areas (MPAs) have been implemented as a conservation tool throughout the world, but their usefulness and effectiveness is strongly related to climate change. However, few MPA programmes have directly considered climate change in the design, management or monitoring of an MPA network. Under international obligations, EU, UK and national targets, Scotland has developed an MPA network that aims to protect marine biodiversity and contribute to the vision of a clean, healthy and productive marine environment. This is the first study to critically analyse the Scottish MPA process and highlight areas which may be improved upon in further iterations of the network in the context of climate change. Initially, a critical review of the Scottish MPA process considered how ecological principles for MPA network design were incorporated into the process, how stakeholder perceptions were considered and crucially what consideration was given to the influence of climate change on the eventual effectiveness of the network. The results indicated that to make a meaningful contribution to marine biodiversity protection for Europe the Scottish MPA network should: i) fully adopt best practice ecological principles ii) ensure effective protection and iii) explicitly consider climate change in the management, monitoring and future iterations of the network. However, this review also highlighted the difficulties of incorporating considerations of climate change into an already complex process. A series of international case studies from British Columbia, Canada; central California, USA; the Great Barrier Reef, Australia and the Hauraki Gulf, New Zealand, were then conducted to investigate perceptions of how climate change has been considered in the design, implementation, management and monitoring of MPAs. The key lessons from this study included: i) strictly protected marine reserves are considered essential for climate change resilience and will be necessary as scientific reference sites to understand climate change effects ii) adaptive management of MPA networks is important but hard to implement iii) strictly protected reserves managed as ecosystems are the best option for an uncertain future. This work provides new insights into the policy and practical challenges MPA managers face under climate change scenarios. Based on the Scottish and international studies, the need to facilitate clear communication between academics, policy makers and stakeholders was recognised in order to progress MPA policy delivery and to ensure decisions were jointly formed and acceptable. A Delphi technique was used to develop a series of recommendations for considering climate change in Scotland’s MPA process. The Delphi participant panel was selected for their knowledge of the Scottish MPA process and included stakeholders, policy makers and academics with expertise in MPA research. The results from the first round of the Delphi technique suggested that differing views of success would likely influence opinions regarding required management of MPAs, and in turn, the data requirements to support management action decisions. The second round of the Delphi technique explored this further and indicated that there was a fundamental dichotomy in panellists’ views of a successful MPA network depending upon whether they believed the MPAs should be strictly protected or allow for sustainable use. A third, focus group round of the Delphi Technique developed a feature-based management scenario matrix to aid in deciding upon management actions in light of changes occurring in the MPA network. This thesis highlights that if the Scottish MPA network is to fulfil objectives of conservation and restoration, the implications of climate change for the design, management and monitoring of the network must be considered. In particular, there needs to be a greater focus on: i) incorporating ecological principles that directly address climate change ii) effective protection that builds resilience of the marine and linked social environment iii) developing a focused, strong and adaptable monitoring framework iv) ensuring mechanisms for adaptive management.

Normative conflicts in international investment law: the case of environmental law

This dissertation investigates the relationship between investment and environmental obligations from the perspective of international investment law. In order to do so, the dissertation will consider how these obligations might enter into conflicts and what tools are available to investment tribunals to solve these normative conflicts. The dissertation analyses in order interpretative techniques, conflict resolution tools available in general international law, as expressed in the Vienna Convention on the Law of Treaties, and finally express clauses in international investment agreements. The dissertation includes the review of some relevant case law arising from investment agreements in investment treaty tribunals, to discover how in practice these conflict resolution tools are applied and to assess their effectiveness. This dissertation places itself squarely within the debate between the unity and the fragmentation of international law; therefore it tackles the issue of normative conflicts resolution in a dispute settlement environment with the view of gauging their value in maintaining the unity of international law and defuse the risk of fragmentation. The dissertation can only conclude that much work remains to be done, including by providing a more comprehensive taxonomy of possible interventions, both on the legal and political sphere.

Public interests in water concession disputes

The flux of foreign investment into the water industry led to the internationalisation of contracts and of the method of settlement of possible disputes. When disputes over the performance of a water concession give origin to investor-state arbitrations, public authorities are put in a challenging position. The state need to combine two different roles – its role in the provision of services of public interest and the fulfilment of its international legal obligations arising from international investment agreements. The complexity of this relationship is patent in a variety of procedural and substantive issues that have been surfacing in arbitration proceedings conducted before the International Centre for Settlement of Investment Disputes. The purpose of this dissertation is to discuss the impact of investment arbitration on the protection of public interests associated with water services. In deciding these cases arbitrators are contributing significantly in shaping the contours and substance of an emerging international economic water services regime. Through the looking glass of arbitration awards one can realise the substantial consequences that the international investment regime has been producing on water markets and how significantly it has been impacting the public interests associated with water services. Due consideration of the public interests in water concession disputes requires concerted action in two different domains: changing the investment arbitration mechanism, by promoting the transparency of proceedings and the participation of non-parties; and changing the regulatory framework that underpins investments in water services. Combined, these improvements are likely to infuse public interests into water concession arbitrations.