Katerina ATHANASIOU, Efi DIMOPOULOU, Christos
KASTRISIOS and Lysandros TSOULOS, Greece
The interests, responsibilities and opportunities of states to
provide infrastructure and resource management are not limited to their
land territory but extend to marine areas as well. So far, although the
theoretical structure of a Marine Administration System (MAS) is based
on the management needs of the various countries, the marine terms have
not been clearly defined. In order to define a MAS that meets the
spatial marine requirements, the specific characteristics of the marine
environment have to be identified and integrated in a management system.
To explicitly define MAS, certain issues need to be addressed such as:
the types of interests that exist in marine environment, the best way to
capture and register those interests, laws defining these interests, and
their hierarchical classification, as well as how this classification
can be used to produce the principles for the implementation of MSP. In
addition, the registration of laws in a MAS that could automatically
define the constraints of the emerging Rights, Restrictions and
Responsibilities (RRRs) should be addressed, along with property/ tenure
object definition. Further questions need to be answered e.g., what is
the basic reference unit and how can this be defined, deliminated and
demarcated, capturing the 3D presence of marine parcel and is the
traditional definition of a cadastral parcel applicable in a marine zone
defined by United Nations Convention on Law of the Sea (Hereinafter:
UNCLOS) (United Nations, 1982) and how could the fourth dimensional
nature of marine RRRs be included. Addressing these questions
constitutes the basis upon which a MAS can be built. However, the most
crucial question is how the international standards and practices of
land administration domain can be used for managing the marine
environment. The aim of this paper is to examine the above questions, to
probe the ways the legislation can be included into a MAS and to present
how RRRs relating to marine space may be defined and organized, in order
to develop a MAS based on international standards by means of not only
trading in marine interests, but rather facilitating the management of
activities related to resources.
1. INTRODUCTION
Over the last two decades, countries with extensive coastlines and
confined marine space, where they exercise sovereignty and powers, have
dealt with the concept of MAS. Among others Australia, Canada, the
Netherlands and the United States have developed systems for the
administration of marine interests and the sustainable management of
marine resources (Athanasiou et al, 2015). Their efforts are at a
development stage, based on practices adopted in the fields of Marine
Cadastre (MC), Marine Spatial Data Infrastructure (MSDI), Marine Spatial
Planning (MSP).
Many definitions have been given to MC, as Nichols et al (2006)
extensively described. It can be broadly defined as “an information
system that records, manages and visualizes the interests and the
spatial (boundaries) and non-spatial data (descriptive information about
laws, stakeholders, natural resources) related to them”. MSDI is
fundamental to the way marine information is developed and share for
competent marine administration. MSP is a planning frame for balancing
the rival human activities and managing their effects in the marine
environment.
Research has been carried out concerning the correlation between
these concepts and the way they interrelate. MC and MSDI relationship:
MC is defined as a management tool, which can be added as a data layer
in a marine SDI, allowing them to be more effectively identified,
administered and accessed (Rajabifard et al, 2005; Rajabifard et al,
2006; Strain et al, 2006; Widodo et al, 2002; Widodo, 2003; Widodo,
2004). Furthermore regarding the relation of MC and MSP, according to
Arvanitis (2016), there is a two-way relationship between MSP and MC:
“Both of them function independently. However, MSP is designed and
implemented safely and at a lower cost if it utilizes data from MC and
MC will register and control the different rights and licenses in marine
areas based on ecological environment when defined zoning from MSP
exist.” According to De Latte, 2015 “A MC is also different to a MSP as
referred to in the directive 2014/89; a MSP is intended to regulate the
use of the marine area/areas it covers; a MC is intended to describe and
delimit distinct MC parcels and to indicate all relevant public and
private rights, restrictions (including inter alia the restrictions
resulting from MSP) and charges on those parcels.”
MASs show the different perspectives of the various jurisdictions,
while the tools developed for the management of marine environment show
the increasing institutional and research interest on this topic.
However, there is a lack of a common standard regarding the management
of marine Rights, Restrictions and Responsibilities (RRRs) and their
spatial extent. Current research focuses on the development of a MC data
model that would serve as the basis of a MAS, taking into account
existing standards. Concerning modeling aspects, 83 Katerina Athanasiou,
Efi Dimopoulou, Christos Kastrisios and Lysandros Tsoulos Management of
Marine Rights, Restrictions and Responsibilities according to
International Standards 5th International FIG 3D Cadastre Workshop 18-20
October 2016, Athens, Greece Ng’ang’a et al (2004) describe a marine
property rights data model, Duncan and Rahman (2013) advocate the
integration of marine blocks with land volumes, Griffith-Charles and
Sutherland (2014) examine the creation of a 3D Land Administration
Domain Model (LADM) compliant MC in Trinidad and Tobago, while
Athanasiou, 2014; Athanasiou et al, 2015 deal with the conceptual
classification of the marine entities and relationships and explore the
adaptation of LADM to marine environment. Furthermore, in several
countries the management of marine cadastral units is included in the
LADM implementation. Among the existing standards that could relate to
marine environment special reference can be made to:
- The LADM, since it consists the first standard and approved base
model for the land administration domain (ISO 19152, 2012),
establishing a rigorous mechanism for managing legal RRRs, their
spatial dimension and the stakeholders. The implementation of this
standard to the marine domain seems feasible since the triplet
Object – Right – Subject, which consists the basis of LADM, applies
as well in the marine environment.
- The S-100 Universal Hydrographic Data Model, which provides the
framework and the appropriate tools to develop and maintain
hydrographic related data, products and registers. Following the
proposal made by Geoscience Australia in 2013 for the development of
a product specification for Maritime Limits and Boundaries, Canadian
Hydrographic Service & Geoscience Australia presented a model in
relation to LADM and marine environment. The report proposes the
extension of S-100 to support LADM, through the development of the
S-121 Maritime Limits and Boundaries (Canadian Hydrographic Service
& Geoscience Australia, 2016).
In order to develop and implement the aforementioned models into the
marine environment, the unique features of the marine space must be
taken into account. This paper explores the range of laws that dictate
marine interests, identifies the marine legal object and provides the
legislative framework and the RRRs that relate to marine space, in order
to be optimally organized towards the development of a MAS based on
international standards.
2. INTERNATIONAL STANDARDS RELATING TO MARINE ENVIRONMENT
Standards are widely used, since they provide efficiency and support
in communication between organizations and countries as well as for
system development and data exchange based on common terminology. Domain
specific standardization is needed to capture the semantics of marine
administration. Such a standard will support marine registry and
cadastral organizations utilizing a Geographic Information System along
with a Data Base Management System and applications, in order to
implement and support marine policy measures.
Current discussions and efforts focus on the development and
implementation of marine data modeling taking into account practices
from Land Administration Standardization. Therefore, the registration of
interests encountered in the marine environment with their spatial
dimension may be modeled in accordance with terrestrial mapping methods
and standardization techniques (Canadian Hydrographic Service &
Geoscience Australia, 2016). The basis of the model will be the S-100 –
IHO Hydrographic Geospatial Standard for Marine Data and Information.
2.1 LADM
The LADM, was approved on the 1st of November 2012 as an
international standard, ISO 19152, constituting the first adopted
international standard in the land administration domain. LADM provides
a formal language for the description of existing systems, based on
their similarities and differences. It is a descriptive standard, not a
prescriptive one that can be expanded. LADM is organized into three
packages and a subpackage (Lemmen, 2012). These are groups of classes
with a certain level of cohesion. The three packages are: Party Package;
Administrative Package; Spatial Unit Package and subpackage: Surveying
and Spatial Representation Subpackage. The model contains thematic and
spatial attributes. Furthermore in several attributes code lists are
used rather than character strings in order to ensure consistency. The
modification and adoption of code lists in national profiles is
possible.
From the 3D perspective, LADM supports both 2D
(LA_BoundaryFaceString) and 3D objects (LA_BoundaryFace) and
distinguishes legal and physical objects by introducing external classes
for BuildingUnit and UtilityNetwork. It covers the legal space while the
physical counterparts are not directly generated in LADM. At the
semantic level, legal entities are not enriched by classifying data in
relation to each other (Aien et al, 2013). Furthermore, LADM through the
VersionedObject class provides the attributes beginLifespanVersion and
endLifespanVersion, allowing the recreation of a dataset at a previous
point in time leading to a 4D visualization of the Cadastre
(Griffith-Charles and Sutherland, 2014).
The implementation of the model in marine environment is a user
requirements in LADM version A. Furthermore the scope of the standard
explicitly addresses the water when referring to land. Lemmen (2012)
states “With some imagination the laws (formal or informal) can be seen
as ‘parties’; in fact the laws allow people to have interests in ‘marine
objects’. The interests are RRRs”. The common denominator or the pattern
that can be observed in land administration systems as it is derived
from the LADM is with a package of party/person/organisation data and
RRR/legal/administrative data, spatial unit (parcel) data. The same
pattern is also applicable on marine space.
2.2 S-100 Universal Hydrographic Model
S-100 provides a contemporary hydrographic geospatial data standard
that can support a wide variety of hydrographic-related digital data
sources. It is fully aligned with mainstream international geospatial
standards, in particular the ISO 19100 series of geographic standards,
thereby enabling the easier integration of hydrographic data and
applications into geospatial solutions.
The primary goal for S-100 is to support a greater variety of
hydrographic-related digital data sources, products, and customers. This
includes the use of imagery and gridded data, enhanced metadata
specifications, unlimited encoding formats and a more flexible
maintenance regime. This enables the development of new applications
that go beyond the scope of traditional hydrography - for example,
high-density bathymetry, seafloor classification, marine GIS, et cetera.
S-100 is designed to be extensible and future requirements such as 3-D,
time-varying data (x, y, z, and time) and Web-based services for 85
Katerina Athanasiou, Efi Dimopoulou, Christos Kastrisios and Lysandros
Tsoulos Management of Marine Rights, Restrictions and Responsibilities
according to International Standards 5th International FIG 3D Cadastre
Workshop 18-20 October 2016, Athens, Greece acquiring, processing,
analysing, accessing, and presenting hydrographic data can be easily
added when required (IHO,2015).
Following the adoption of S-100, many product specifications are
under development by the IHO S-100 specialized Working Groups (WGs)
including S-101 for Electronic Navigational Charts (ENCs) and S-121 for
Maritime Limits and Boundaries.
The proposed S-121 is built upon the ISO 19152, which provides a
rigorous mechanism for handling legal RRRs. The intended purpose of
S-121 is “to provide a suitable format for the exchange of digital
vector data pertaining to maritime boundaries” and “for lodging digital
maritime boundary information with the United Nations for purposes
related to UNCLOS” (McGregor, 2013) What is more, as all ISO 19000
series product specifications, S-100 and the subordinate S-121 are
intended to interwork with all similar products. In that sense, S-121
may serve as the bridge between the land and marine domains while the
Maritime Limits and Boundaries following the S-121 standard may be used
in a MAS.
In S-121 each real world feature is an object with properties
represented as attributes (spatial and thematic) and associations which
establish context for the feature. The spatial attributes of the feature
describe its geometric representation, whereas the thematic attributes
describe its nature. The attributes associated with the geographic
feature depend on the intrinsic type of the feature, a concept derived
from LADM which is not included in the S-100 suite. A feature object may
only have one intrinsic type that is the physical dimension of the
feature in the real world based on the “Truth on the ground” principle.
Hence a feature may either be a point (Location), curve (Limit), area
(Zone) or volume (Space). Subsequently, the feature is described in the
dataset by the geometry property (point, line, area) which is used for
its cartographic representation. Finally, for the portrayal of each
geometry property, which is separate from geometric representation, a
variety of symbols may be used. For instance, the intrinsic type of a
football field is Zone. Depending on the scale of the cartographic
product, the geometry of the field may be area (large scale maps) or
point (small scale maps). Finally, for the portrayal of e.g. the point
geometry, can be used a simple point, a star or a variety of other
symbols.
Figure 1. S-121 classes related to LADM
The proposed S-121 is a product based on S-100 which has many
similarities to the LADM, as it imports from LADM primitives not
supported by S-100, but differences as well. In example, GM_Curve and
GM_Surface from the ISO 19152 class LA_SpatialUnit are useful for a MLB
standard and therefore have been imported to the S-121. A fundamental
difference between the LADM and the S-121 is the use of the
Multi-primitive MultiSurface features in the land environment, whereas
in the marine environment it is a requirement from S-100 to use complex
features instead. In detail, when an object is crossed by another, in
land the crossed feature is defined as a multi-surface, whereas in the
marine environment each spatial primitive is a simple rather than a
complex one. Another issue is the use of 3D objects which LADM addresses
with the LA_BoundaryFace and LA_BoundaryString, whereas, due to the
limitations of S-100 which does not address 3D objects, S-121 handles 3D
objects as 2D objects with vertical extent (2.5 dimensions) (Canadian
Hydrographic Service & Geoscience Australia, 2016).
2.3 INSPIRE
For cross-border access of geo-data, a European metadata profile
based on ISO standards is under development using rules of the
implementation defined by the Infrastructure for Spatial Information in
the European Community – INSPIRE (ISO 19152, 2012). INSPIRE (Directive
2007/2/EC) focuses strongly on environmental issues, while the LADM has
a multipurpose character. One important difference is that INSPIRE does
not include RRRs in the definition of cadastral parcels.
From the spatial perspective, according to ISO 19152 (2012) there is
a compatibility between LADM and INSPIRE. More specifically, four
classes are relevant in the INSPIRE context:
- LA_SpatialUnit (with LA_Parcel as alias) as basis for
CadastralParcel;
- LA_BAUnit as basis for BasicPropertyUnit;
- LA_BoundaryFaceString as basis for CadastralBoundary;
- LA_SpatialUnitGroup as basis for CadastralZoning. Regarding the
marine space, the expression and the definition of the above classes
needs to be examined.
INSPIRE data specifications are being developed across 34 themes. A
number of INSPIRE themes have a marine relevance, something that
researchers have already pointed out (e.g. Longhorn, 2012). Two of the
themes, i.e. Ocean Geographic Features (OF) and Sea Regions (SR) are
related exclusively to marine environment. According to Millard (2007),
”INSPIRE is not marine nor land centric”. Themes are considered
independent of whether or not refer on land or at sea, and therefore
data can be brought together across land-sea boundaries. INSPIRE
provides a level of interoperability to deliver integrated land-sea
datasets. But the data models (by design) will not solve the needs of
all communities e.g. navigation. The marine themes on their own do not
give all the information on the marine environment. According to Lemmen
(2012) “firstly, it is possible that a European country may be compliant
both with INSPIRE and with LADM and secondly, it is made possible
through the use of LADM to extend INSPIRE specifications in future, if
there are requirements and consensus to do so”. Given that IHO S-121
”Product Specification for Maritime Limits and Boundaries” is based on
LADM, it is inferred that INSPIRE can cooperate as well with S-121
mainly in the spatial dimension.
3. LEGAL FRAMEWORK OF THE MARINE ENVIRONMENT
When considering the legal framework for the marine environment,
certain factors must be taken into account: the laws that define the
interests, the hierarchical classification of these laws considered as
reasonable (Cockburn and Nichols, 2002), how should this classification
be used to derive the principles for the implementation of MSP and how
the registration of laws in a MAS can automatically define the
constraints of the emerging RRRs.
Given the particular nature of the legal system of the marine space
and the necessity of an organized setting for its use, based on already
predetermined planning, the rights that may appear are defined in a
unique way by the law. Unlike land, maritime space does not allow the
rights’ creation as a private enterprise product and seeks for a
regulation with a direct correlation to the creation of the right and
the need to impose its creation. The term "law" refers to the wider
legislative framework which is the basis of MAS. Laws and regulations
create or describe rights and then provide the means to implement or
enforce them. Thus, in order to develop a MAS, the registration of laws
is considered reasonable. This section presents both the institutional
framework that defines the legal status of the marine space and the
legal framework that defines the application of these laws.
The international law defines the kinds of RRRs that may exist within
the marine space, which falls under the sovereignty of a state. A
considerable part of international law is consent-based governance. This
means that, with the exception of those parts that constitute customary
law, a state is not obliged to abide by this type of international law,
unless it has expressly consented to a particular course of conduct.
This is an issue of state sovereignty. Treaties may require national law
to conform to respective parts and they are commonly transposed into
national legislation by typical law.
The European Union Law (mainly the EU Directives) aims to establish a
common framework and a common approach for the development of an
Integrated Maritime Policy. Memberstates should implement the EU
Directives transposing them into national law. The choice of appropriate
form and method to implement relies at their discretion (Article 288,
Treaty of Functioning of the European Union). For example in Greece, an
EU Directive is commonly incorporated into the national legislation by a
typical law.
3.1 International level
Although domestic law is playing an important role in regulating the
management of the sovereign areas of a State, in the marine environment
international law has been the primary basis for the implementation of
maritime policies and boundaries.
Historically, the world’s oceans operate under the principle of
freedom of the seas. The multitude of claims, counterclaims, sovereignty
disputes between the States with coastlines, the rapid improvement in
technology and the increasing interest in exploring the marine
environment has caused the need for an effective international regime
governing the world’s oceans. The most intensive efforts have taken
place at the 20th century. In 1982 the UN concluded to the UNCLOS, which
forms the cornerstone of the legal mechanism and describes the rights,
obligations and types of interests of states.
One of the ways established has been through the division of marine
space into different zones where the coastal states enjoy sovereignty or
sovereign rights and thus the jurisdiction to establish their laws and
policies, in compliance with UNCLOS guidelines. The exercise of these
rights is subject to a registration system of Management of the marine
area. According to Cockburn et al (2003), UNCLOS influences a ratified
nation’s MAS in several ways, like breadth, depth, what rights can be
included in the ocean areas and hence what spatial information is
contained therein and has an effect on the evidence that can be used for
boundary delimitation. UNCLOS has created a complex three-dimensional
mosaic of private and public rights (Ng’ang’a et al, 2004), which the
party members have to incorporate into their national legislation, with
the enactment of new and/or modernization of national laws and
regulations.
The Convention is the background of exercising any marine activity
and therefore the reason to create a MAS, since it creates a sovereignty
status on the marine space.
3.2 European level
The main EU legal instruments that refer to the integrated management
of the Mediterranean marine space, which e.g. Greece has been called/is
called to follow, without having incorporated all of them into its
national law, are the following:
The integrated marine management term dates back to 2006, in Green Paper
Need for a link among diverse EU policies affecting the marine
environment. Since then (De Latte, 2016):
- COM (2007)575 - Communication of 10 October 2007 - Integrated
Maritime Policy for the European Union (Blue Book)
- Directive 2008/56/EC of 17 June 2008 establishing a framework
for community action in the field of marine environmental policy –
Marine Strategy Framework Directive (MSFD)
- MARINE KNOWLEDGE 2020:
- BLUE GROWTH / BLUE ECONOMY:
- accompanying Communication COM(2014)254 of 8 May 2014 –
Innovation in the Blue Economy
- Directive 2014/89/EU of 23 July 2014 establishing a
framework for maritime spatial planning (EU Official Journal of 28
August 2014)
- Directive 2007/2/EC of 14 March 2007 establishing an
infrastructure for spatial information in the European Community –
INSPIRE directive.
- After that the INSPIRE Marine Pilot Project has been launched to
help stakeholders of the Marine Strategy Framework Directive
2008/56/EC to understand how the obligations of the INSPIRE
Directive 2007/2/EC relate to the data and information management
aspects of the MSFD.
The European Maritime Policy is still under development. The most
recent activity on the MC in European Union is the agreement on the need
for a common study on the importance of MC to the European economy.
3.3 National level
As a result of the structure of international law it is estimated
that around 50% of the world’s oceans fall within the national
jurisdiction of coastal states, whereas the remaining 50% represent part
of the Area (Prescott and Schofield, 2005). Greece is a state virtually
surrounded by sea located in the central part of the Mediterranean sea.
In the western part of Greece lies the Ionian sea. The maritime front of
this part of the mainland and of the nearby islands generate rights of
continental shelf and EEZ (not yet declared) for Greece which overlap in
with the corresponding rights of Italy, Albania and Libya. In the East,
Greece shares maritime borders with Turkey and Cyprus. In the south of
Crete lies the Libyan /South Kritiko sea, which covers the area
bordering with the Cretan, the Libyan and the Egyptian coasts. Therefore
the maritime neighbors of Greece are Albania, Italy, Libya, Egypt,
Turkey and Cyprus.
Concerning the international law, Greece ratified the 1982 Convention
on 21 July 1995 (Law 2321/1995). Thereafter the maritime borders are
defined as follows:
- The breadth of Greece’s territorial sea was set at 6 nautical
miles (NM) from the natural coastline in 1936 in the Mediterranean
Sea basin (Law 230/1936 as amended by Presidential Decree 187/1973,
which constitutes the Greek Code of Public Maritime Law). It has
been declared that Greece reserves its right under international law
to establish a 12 NC territorial sea at a time deemed appropriate.
However, the limit of 10 NC in the national airspace was maintained
explicitly based on previous legislation (Decree of 6 September 1931
in conjunction with Law 5017/1931).
- Regarding the Continental Shelf the distance between the Greek
coasts and the coasts of her neighboring states are less than 400NM,
and therefore Greece needs to agree its limits with the above
states. So far, Greece has concluded agreements with Italy (1977)
and Albania (2009) based on the median line principle. It is noted
that Greece has not declared an EEZ.
With respect to the legal framework for the management of the marine
environment, national legislation and regulation inevitably reflect the
specific interests, concerns and structures of the State. The manner in
which international Treaty law becomes part of national domestic law (or
is transformed into domestic law) is different for each State. Greece
has ratified UNCLOS and has enacted a number of laws for the areas she
exercises sovereign rights. What characterizes the Greek coastal and
marine area is the non-unified national strategy and the attempt to
resolve the issues presented by creating piecemeal provisions. There is
no comprehensive strategy to deal with the fractured and incomplete sets
of data that are the legacy of the complex administrative and legal
structures. The introduction of the General Framework for Spatial
Planning and Sustainable Development and the Special Framework for the
coastal area and the islands are a great advantage for these problems to
be solved. The creation of specific legislation on the shore and the
foreshore is an important part of spatial, urban and environmental
planning for the coastal area.
4. MARITIME ZONES AND LIMITS
4.1 Legal regime UNCLOS
codifies different maritime zones a coastal state may claim. The
maritime zones are measured from the baselines which normally coincide
with the low-water line (normal baseline) as marked on large-scale
charts officially recognized by the coastal State but can be any
combination of normal, straight, archipelagic and bay-closing lines.
Each zone grants certain rights to the coastal State and carries certain
obligations to the foreign States and vessels. The general principle is
that the closer to the coast the greater the degree of rights for the
coastal State, which consequently curtails some or all of the freedoms
for the foreign States and vessels. In detail:
- Internal Waters (IW), which cover all water on the landward side
of the baselines. The internal waters are considered part of the
State’s territory and the coastal State exercises full sovereignty
over them (UNCLOS, Article 8), similar to that on the land
Sovereignty is applied over the air space, water column, seabed and
subsoil, and postulates that foreign vessels and states are deprived
of all of the high seas freedoms, with the exception of Article
8(2).
- Territorial Sea (TS), measured from the baseline seaward, the
breadth of which may not exceed 12NM. The coastal State’s
sovereignty is extended beyond its land territory and internal
waters in the territorial sea (Article 2), also extending in the air
space over the territorial sea as well as to its bed and subsoil.
Sovereignty postulates that foreign vessels and states are deprived
of all of the high seas freedoms, but within this zone foreign
vessels enjoy the right of innocent passage (Article 19).
- Contiguous Zone (CZ), a zone adjacent to the territorial sea
which may not extend beyond 24 NM from the baselines. In the
contiguous zone the coastal State has the jurisdiction to regulate
and put laws into in order to prevent and punish infringements of
its customs, fiscal, immigration or sanitary laws committed within
its land territory or territorial sea (Article 33). Moreover, in
order to control traffic of archaeological and historical nature
found at sea, the coastal State may, in applying the above relating
to the contiguous zone, presume that their removal from the seabed
in the zone referred to in that article without its approval would
result in an infringement within its territory or territorial sea of
the abovementioned laws and regulations. Within contiguous zone the
coastal state has no further rights and the high seas freedoms
remain unaffected for the other states.
- Exclusive Economic Zone (EEZ), which is adjacent to the
territorial sea and may not extend beyond 200 NM from the baseline.
In the Exclusive Economic Zone the coastal state has exclusive
sovereign rights for the purpose of exploring and exploiting,
conserving and managing the natural resources, both living or
non-living and the jurisdiction to establish artificial islands or
installations and to conduct scientific research. Coastal state is
responsible for the protection of marine environment. Foreign
vessels enjoy three of the six high seas freedoms, namely the
freedoms of navigation, the freedom of overflight and that of laying
submarine cables and pipelines (Article 87).
- Continental Shelf (CS) which is again adjacent to the TS
and extends to the outer limit of the continental margin, which is
and is formed through the combination of the geological parameters
stipulated in article 76 of the Convention UNCLOS. More
specifically, the continental shelf is delineated by combining the
following three lines:
- 91 Katerina Athanasiou, Efi Dimopoulou, Christos Kastrisios
and Lysandros Tsoulos Management of Marine Rights, Restrictions
and Responsibilities according to International Standards 5th
International FIG 3D Cadastre Workshop 18-20 October 2016,
Athens, Greece
- The distance-constrained line which cannot exceed the 350NM
from the baseline o The depth-constrained line which may not
extend beyond 100NM from the 2,500 meter isobath and
- The formula line extending 60NM from the foot of the
continental slope.
However, the said geological parameters apply to the delimitation of
the area beyond the 200NM, known as the Extended Continental Shelf, as
up to the 200NM limit the continental shelf is another distant
constraint maritime zone. The rights over the continental shelf are
exclusive and pertain to the exploration and exploitation of natural
resources of seabed and subsoil. Unlike EEZ, which has to be proclaimed
by the coastal State, the sovereign rights of the coastal State over the
continental shelf exist ipso facto and ab initio. In other words coastal
State’s rights over CS “do not depend on occupation, effective or
notional, or on any express proclamation and, therefore, can be
exercised at any time” (Article 77).
- High Seas are all parts of the sea that are not included in any
of the above maritime zones. Over High Seas, all freedoms are
retained for every state. Mention should be made of “The Area” which
comprises the sea-bed, ocean floor and subsoil below the high seas
with the exception of that which is part of the state’s continental
shelf (including the continental shelf which lies beyond 200NM from
the baselines). The Area with its resources is common heritage of
mankind and must be used for the benefit of all states. It is
pointed out that some states, instead of taking full advantage of
the rights (and the consequent responsibilities) of the contiguous
zone, have chosen to declare “Archeological Zone” for the control of
traffic of objects of an archaeological and historical nature found
at sea. The removal of such objects from the seabed in that zone
without approval result in an infringement within its territory or
territorial sea of the laws and regulations referred to in article
33. Likewise, instead of declaring EEZ, states have chosen to
declare “Fisheries Zone” for the regulation of fishing based on
their exclusive sovereign right foreseen by UNCLOS for exploring and
exploiting, conserving and managing the living resources up to the
limit of 200NM from the baselines. It is noted that the above two
zones are not described as separate maritime zones in UNCLOS.
4.2 Methods of delimitation
Coastal states may delimit their maritime zones unilaterally at the
maximum allowable breadth, or, when one state’s zones overlap with the
respective zones of a neighboring state, up to the median/equidistant
line between the coastlines of the coastal states. The dominant method
for the unilateral delineation of maritime zones to their maximum
allowable breadth has been that of the conventional line constructed as
the combination of the ‘envelope of arcs’ for the natural coastline and
the ‘replica line’ (or tracé parallèle) for straight baselines. To
implement the envelope of arcs from a point on the normal baseline, an
arc is drawn at a distance equal to the breadth of the maritime zone
(Boggs, 1930) and the, so called, envelope line is the locus of the
intersections of the farthest arcs. On the other hand, the replica line
is created with the transfer of the straight line segments seawards at a
distance equal to the zone’s breadth. The outer limit of the maritime
zone is formed by the combination of the two lines (Kastrisios, 2014).
With respect to the bilateral delineation of maritime limits, the
geographer must define the median line ‘every point of which is
equidistant from the nearest points on the two baselines’ (UNCLOS,
Article 15). More precisely, “median/ equidistant line is the method to
be followed when the territorial seas of two coastal states overlap
(UNCLOS, Article 12). The same principle was present in the 1958
Convention on the Territorial Sea and the Contiguous Zone with respect
to the contiguous zone (TSC, 1958, Article 24) and in the 1958
Convention on the Continental Shelf with respect to the continental
shelf (CSC, 1958, Article 12). However, the 1982 Convention remained
silent with regards the CZ, whereas for the continental shelf and the
exclusive economic zone (the latter was introduced into international
law with the 1982 Convention) the principle of equity was adopted
(UNCLOS, Article 74)” (Kastrisios and Tsoulos, 2016b). Towards achieving
an equitable solution the median line serves as the reference for the
final delimitation. In detail, “for the delimitation of maritime zones
beyond the 12 mile zone, the states would first provisionally draw an
equidistant/median line and then consider whether there are
circumstances which must lead to an adjustment of that line’ (ICJ (Qatar
v. Bahrain), 2001.
Either unilaterally or bilaterally, outer limits may be constructed
graphically on paper charts, semi-automatically with one of the existing
GIS software (e.g. CARIS LOTS) or fully automatically with the most
recent developments in the field (Kastrisios and Tsoulos, 2016a;
Kastrisios and Tsoulos, 2016b).
5. MARINE LEGAL OBJECT
For the development of a MAS the association of legal attributes with
maritime limits and boundaries’ information or marine parcels is
necessary, in order to determine under whose authority or international
treaty a particular limit or boundary is defined, and the restrictions
around this specific marine parcel according to the legislation.
From an administrative modeling viewpoint where the focus is on
abstracting the real world as a principle, sea is not a legal entity
until an interest is attached to it. Therefore, the very close
relationship between each interest and its spatial dimension in the real
world should be identified and registered in information systems. These
elements form a unique entity, the marine legal object.
Cadastres deal with entities consisting of interests in land that
have three main components: spatial (spatial units), legal documents,
and parties (Aien et al, 2013). The same applies in the marine
environment.
5.1 Types of RRRs
The operation of a LAS is based on the relationships between parties
(stakeholders) and property units. Property is conceptualized as
consisting of the rights, objects, and subjects. Nichols (1992)
suggested that property with its emphasis on ‘rights’ is a subset of
land tenure, which is a much broader term with emphasis on RRRs. In the
marine environment, property describes the resource, individual/s with
an enforceable claim, and type of resource use claims (Ng’Ang’A, 2006).
Moreover, other than the State owned parcels in the territorial sea,
parcel 93 Katerina Athanasiou, Efi Dimopoulou, Christos Kastrisios and
Lysandros Tsoulos Management of Marine Rights, Restrictions and
Responsibilities according to International Standards 5th International
FIG 3D Cadastre Workshop 18-20 October 2016, Athens, Greece boundaries
are determined according to usage only (e.g. minerals, aquaculture) and
not as a property. There is not a market in ocean parcels where parcels
are subdivided and consolidated and sold off, nor is the system designed
to support this (Barry et al, 2003). Therefore in oceans a different
legal regime is shaped. The following types of RRRs can be found:
- State Interests
The state RRRs are defined through the international Treaties (and
bilateral agreements for states with maritime neighbors) and
transposed into national legislation with laws. When referring to
sovereign rights, we mean the power of the state and/or the
sovereign entity (as regards the marine space, the sovereign entity
is always the coastal state) to act as they deem appropriate for the
benefit of their citizens. The legal term of the aforementioned
power is "exclusivity of jurisdiction" that is according to the
international law the state has complete control of its affairs
within its territory, without being accountable for the means of
exercising this control. The extent or the kind of the sovereign
rights differentiate according to the specific zone of the marine
space we are referring to. The full sovereignty or the sovereign
rights of the coastal state means that, apart from the coastal
state, private entities (natural or legal persons) can exercise an
activity or use part of the marine space only by means of
transferring of a right from the State for a specific activity under
contract or licensing. This kind of rights are recorded by a MAS.
- Public Rights
Public rights refer mainly to the constitutional right of every
citizen of the state having an unlimited/ without obstacles access
statewide (terrestrial and marine space). These rights are not
secured for an individual interest but for a public interest. They
may be described as protecting the public interest in the use and
conservation of social resources.
- Environmental RRRs
We refer to provisions that relate to the protection and
conservation of water resources, places of preserved areas and
cultural heritage. These places are pre-determined by law and the
rights involved are of supreme importance and mandatory, in
comparison to the following functional interests (Athanasiou et al,
2015). These RRRs include among others the protection of
archaeological and historical objects found at sea, the protection
of Marine Protected Areas and the general MSP restrictions.
- Usage and Exploitation Rights
Progressively functional rights tend to acquire a private nature,
associated with individual stakeholders that coexist with the state
rights. In a wide sense, this term sets the limits of rights, which
involve mainly the different ways of use, management and
appropriation. In other words, in the marine environment the rights
are limited in terms of space, duration and most importantly the
extent, the content that refers only to the different kind of uses
and management. The stakeholders are not owners but only beneficial
“users”. (Athanasiou et al, 2015). When private property rights are
used as a basis of interpretation, these rights do not represent
full ownership let alone absolute property rights; they can be
classified into usage and exploitation rights. Usage rights are
associated only with space, and exploitation rights are associated
with the resources as well. Usage rights may be granted by a legal
person that has been delegated the authority to provide usage
rights. Rights granted in this manner are subject to 94 Katerina
Athanasiou, Efi Dimopoulou, Christos Kastrisios and Lysandros
Tsoulos Management of Marine Rights, Restrictions and
Responsibilities according to International Standards 5th
International FIG 3D Cadastre Workshop 18-20 October 2016, Athens,
Greece restrictions in terms of the nature of the usage rights (e.g.
type and temporal aspects of use) and the spatial extent linked to
the usage rights (sometimes defined by boundaries). Functional
rights are granted either by leasing contracts or through licensing.
It has to be noted that the authority of granting remains national
and no freehold ownership is involved. These rights are associated
with specific stakeholders.
S-121 model maintains the class LA_RRR from LADM and the
specializations of LA_Right, LA_Restriction, LA_Responsibility, through
realization relationships. The class LA_Mortgage is not expressed in the
model, since there is not applicable in the marine environment.
5.2 Types of legal documents defining marine legal object
- Laws
The legislation which defines all RRRs of the marine space and is
the basis upon which the content of the administrative resources is
developed. The term "law" leads to the main division between
substantial and typical law (i.e. the legislation produced by the
legislative power of the House of Representatives). Thus, the
substantial law includes the principles of Common Law and equity,
the administrative acts of the Administrative Authorities
(Ministerial and Presidential Acts) as well as acts of legislative
content. Needless to say, the European Law (Treaties, Regulations,
Directives, Decisions) and the International law are main legal
binding sources.
- Administrative Sources
The legal sources which include the administrative regime of the
RRRs are defined. The administrative sources are: the legal
contracts that relate to the disposal of the functional rights of
the State to private entities (as defined by the legal framework).
The functional rights of the State granted are either by means of an
administrative contract (administrative long leases or public works
contracts) or the right is conferred by an administrative act, most
usually by a license agreement.
The administrative sources that need to be recorded in a MAS are
different depending on each activity. For several resources the
processes relating to registration of issue are standard. For example in
Greece the registration associated with exploration for and extraction
of gas and petroleum is highly refined. It is of high importance that
all the activities that take place in the marine space need to be
recorded accurately. This systematic recording could help to identify:
the multiple licenses required for specific activities, regulated access
rights, existing legal gaps.
S-121 model keeps the class LA_AdministrativeSource in its structure.
It is proposed the registration of administration sources and laws in
different classes. The fact that all different rights find their base in
some kind of transacting document is represented by the association
between S121_RRR and S121_AdministrativeSource and this transacting
document is recorded in the latter class. However in marine environment
the existence of rights may be not emerged through the transaction, but
from the law implementation.
5.3 Defining marine cadastral unit
A plethora of research works and papers in literature deal with the
definition of the marine parcel. Ng’ang’a et al (2004) make two
alternative hypotheses about the marine parcel: “(1) that there either
exists a multidimensional marine parcel that can be used as the basic
reference unit in a MC, or (2) that there exists a series of (special
purpose) marine parcels that can be used as basic reference units for
gathering, storing and disseminating information. In either case then,
whereas the definition and spatial extent of a parcel is still not
clarified, there still exists a parcel.”
Another definition of marine parcel refers to: “A confined space
having common specifications for its internal, mainly used as reference
to locate a phenomenon. A marine parcel facilitates the distinction
between contiguous territories and provides information concerning this
phenomenon through appropriate codification” (Arvanitis, 2013).
For the definition of the marine parcel certain issues must be taken
into account:
- The third dimension: The inherent volumetric 3D nature of marine
space is apparent. Marine RRRs, such as aquaculture, mining,
fishing, and mooring and even navigation, can coexist in the same
latitude and longitude but in different depths. The question is if
the 3D representation is necessary for a MAS. So far, the geomatics’
community supports the idea of the 3D registration and visualization
of marine interests. According to Ng’ang’a et al, 2004 “…Clearly,
the right to explore for minerals may have an impact on the surface
of the land, but it will also affect a 3D cross-section of the
parcel below the land’s surface. Policy-makers would no doubt
benefit from an understanding of the upper and lower bounds of the
exploration rights, and how these may affect the environment or
other property entitlements within the same parcel.” Additionally,
the registration of the restrictions that are defined by the laws
and structure the marine legal object are related with the third
dimension for most activities. They define in which vertical or
horizontal distance is allowed to exercise other marine interests.
Furthermore the multipurpose nature of the MAS demands access to
additional types of information (geology, hydrology etc.), except of
the RRRs, in relation to marine spatial extents. The use of the
third dimension is considered important. However the existing MAS
have only used the third dimension for the representation of the
seafloor.
- The fourth dimension: It is clear that time has always played an
important role as the fourth dimension in cadastral systems. In
marine environment most activities can coexist in time and space and
can move over time and space. Therefore the registration of the
fourth dimension will capture the temporary nature of many
particular rights.
- Spatial Identifiers: Every land parcel or property recorded in a
land registry or a cadastral information system must have an
identifier. In fact identifiers are the most important linking data
elements in land administration databases. There are various ways
for referencing land parcels and property. (Kalantari et al, 2008).
In the Hellenic (Land) Cadastre for each individual property a
12-digit code number is assigned, the “KAEK” , which is unique
nationwide. Arvanitis (2016) proposes the use of a unique code to
the marine parcels. “The 12-unit code will be based on the
legislated zone, the Sea, the Greek Prefecture, the Head Office of
the Port Authority Jurisdiction / Municipality, the use and number
of the marine parcel”. The code will be unique and will record the
existence of multiple uses in the third dimension. 96 Katerina
Athanasiou, Efi Dimopoulou, Christos Kastrisios and Lysandros
Tsoulos Management of Marine Rights, Restrictions and
Responsibilities according to International Standards 5th
International FIG 3D Cadastre Workshop
Athanasiou (2014) incorporates the elements of the unique code to the
spatial unit class in order to spatially define the MA_MarineParcel. The
attributes are: The unclosZone, with possible values - territorial sea
and EEZ, the physicalLayer, the seaType (in Greece for example, the sea
is divided in 8 different pelages) and the port authority – the values
of these attributes are from proposed code lists. Furthermore the
marineBlockCode is added, which is defined as “N°WGS84,
E°WGS84/codeOfSubdividedGrid“ (Figure 2).
Figure 2. Marine Parcel Package (Athanasiou, 2014)
5.4 Spatial dimension and associated issues
The basic reference unit, could be spatially defined as: a
multidimensional marine parcel or a series of (special purpose)
volumetric marine parcels (Ng’ang’a et al, 2004) or as sea surface
objects, water volume objects, seabed objects, and sub seabed objects
(Rahman et al, 2012) (Figure 3) or as a single piece of marine space
deriving from the determined and standard division of the maritime
surface using a grid of specific dimensions and subdivisions if needed
(Figure 4). It is specified by geodetic coordinates of the surrounding
boundaries. This method is already in use for defining the blocks in the
domain of minerals exploitation. The combination of these methods is
feasible. (Athanasiou et al, 2015)
Figure 3. 3D nature of marine parcel (NOAA, 2014)
|
Figure 4. Grid System for Oil and gas exploitation in USA
(BOEMRE, 2011) |
The selection of the geodetic datum on which the coordinates will be
dreferred, is one of the issues that should be taken into account in the
development of a MC. A geodetic datum specifies the reference ellipsoid
and the point of origin from which the coordinates are derived.
Different states, even different mapping authorities of the same state,
use different geodetic datums.
Consequently, coordinates derived from one system do not agree with
the coordinates from another datum, with their differences between
adjacent states, as Beazley (1994) points out, amounting to several
hundred meters. In addition to the horizontal datums, the utilization of
different vertical datums has a significant impact as well. Hydrographic
Services, which are assigned with the task to map the marine
environment, as their priority is the safety of navigation they depict
depth soundings from a mean low water level, such as the Lowest
Astronomical Tide (LAT), or the more conservative Lowest Low Water
(LLW)". On the other hand, the Land cadastral services usually use the
Mean Sea Level (MSL). The difference between the two needs to be
precisely calculated. One of the factors affecting the calculation is
the distance of the permanent tide gauges from the location. The
different sea levels and the precise calculation of the sea level have
also a significant impact to the development of a MC. In detail, the
delineation of the coastline may vary greatly depending on the vertical
datum, which consequently has a significant impact to the outer limits
of the maritime zones over which the states exercise their rights. For
instance, as Leahy (2001) describes, for a foreshore of 0.5% gradient, a
difference of 0.5m in sea water level results 100m error in the location
of the coastline, a value that may exceed 200m in some cases. In extreme
cases and depending on the techniques followed for the delineation of
the coastline, Leahy calculated that the horizontal displacement of the
coastline may reach 3NM when (the coastline) has been derived from
topographic maps of scales 1:100.000.
And here comes another issue; where does the data come from? Is it
data acquired in situ using techniques according to specifications, or
data derived from paper charts/maps compiled years ago with obsolete and
error prone techniques? Another issue with the different sea levels is
the potential reclassification of a sub-surface feature to a low-tide
elevation, which may expand the maritime zones of the coastal state
[Article 13(1)].
We pointed out the importance of the precise delineation of the
baselines as they are the reference where from the maritime zones are
measured. However, it is not the only issue that affects the precise
division of marine space. As nicely put by Carrera (1999), “marine
boundaries are delimited, not demarcated, and generally there is no
physical evidence, only mathematical evidence left behind”, hence the
reference surface used for the delimitation of the outer limits and
boundaries is another source of error. While technical publications,
e.g. TALOS, state their preference towards the ellipsoidal earth,
something of the kind is not stated in UNCLOS. The maximum relative
error with approximating the earth as a sphere is 0.5%, but if projected
plane was to be used for creating buffers of the baselines (e.g.
Mercator projection) the produced error would be significantly greater.
Unfortunately, UNCLOS remains silent in many of its provisions
regarding the technical aspects of the delimitation, including the
horizontal and vertical datums, which the states need to consider and
agree with neighboring states towards an effective MC.
6. CONCLUSIONS
Recent research focuses on regulating the establishment of basic
principles, semantics, rules and procedures relating to the creation of
a MAS. So far, standardization is a requirement to support the
development of a National Land Information System. The same applies to
the marine environment, since the term land encompasses the water
element, as ISO 19152 states. S-100 gives the appropriate tools and
framework to develop and maintain hydrography related data, products and
registers. The extension of this standard to support the LADM, in order
to include the registration of additional types of marine data,
specified by the law is addressed through the development of S-121.
S-121 may serve as the bridge between the land and marine domains while
the Maritime Limits and Boundaries following the S-121 standard may be
used in the marine administration domain. Part of the S-121 project
development would be the specialization of the generic code lists of the
various attributes to marine environment for every State. Furthermore
given that IHO S-121 is based on LADM, it is inferred that INSPIRE can
cooperate as well with S-121 mainly in the spatial dimension. To this
purpose, the connection and the utilization of the terrestrial mapping
methods and standardization techniques must be examined.
Additionally, this paper refers to several issues that are related to
the definition of the marine legal object and need to be considered in
the development of a MAS.
- Organize national legislation, taking into account EU
orientations and directives. Government should enact appropriate
legislation and maintain a database referenced to a common spatial
system that is supported by appropriate standards. Furthermore, laws
and regulations that promote conflict in marine space need to be
identified with the resolution of spatial definitions within
legislation.
- The use of a unique code of identification for each marine
parcel is considered necessary for the establishment of a single
management system. The selection of the geodetic datum on which the
coordinates will be referred, is one of the major issues that should
be taken into account in the development of a MC, as well as the
level of accuracy in the delimitation of the marine legal objects.
- Regarding the Greek case, a conclusive approach becomes
progressively a matter of priority, which could support the State
and the European MSP initiatives. The delimitation of maritime
boundaries with its neighbors needs to be agreed upon, in order to
define the area where the MAS applies. In addition, the creation of
a national ocean’s policy would be the first step towards the
development of a MAS managing the complex regime of legislation and
overlapping jurisdictions.
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BIOGRAPHICAL NOTES
Katerina Athanasiou is currently a Master
Student of Geoinformatics at School of Rural and Surveying Engineering,
National Technical University of Athens. She graduated from the same
institution in 2014. Her bachelor thesis referred to the development of
a Marine Administration Model for Greece, based on International
Standards.
Efi Dimopoulou is Associate Professor at the School
of Rural and Surveying Engineering, NTUA, in the fields of Cadastre,
Spatial Information Management, Land Policy, 3D Cadastres and Cadastral
Modelling. She is the Programme Director of the NTUA Inter- Departmental
Postgraduate Course «Environment and Development» and President of the
Hellenic Society for Geographical Information Systems (HellasGIs).
Christos Kastrisios is Lieutenant Commander of the
Hellenic Navy and PhD candidate in Cartography at the National Technical
University of Athens (NTUA). After his graduation from the Hellenic
Naval Academy (HNA) in 2001 he served on board frigate and submarines of
the Hellenic Navy Fleet, until 2008 when he was appointed to the
Hellenic Navy Hydrographic Service (HNHS). His assignment at the HNHS
includes various posts including that of the deputy director of
Hydrography Division and his current position as the Head of the
Geospatial Policy and Foreign Affairs Office. He is the national
technical expert on the Law of the Sea, representative and member in
NATO and IHO working groups and member of national and international
geospatial societies. He holds a Master’s degree in GIS from the
University of Maryland at College Park. He is part-time lecturer at the
HNA and NTUA.
Lysandros Tsoulos is professor of Cartography at the
School of Surveying Engineering - National Technical University of
Athens [NTUA]. In 1975 he joined the Hellenic Navy Hydrographic Service
[HNHS] where he worked for 17 years (Directorate of Cartography and the
HNHS Computing Center). In 1992 he was elected member of the faculty at
the School of Surveying Engineering - NTUA. He is the director of the
NTUA Geomatics Center and the Cartography Laboratory. His research
interests include cartographic design, composition and generalization,
GIS, digital atlases, spatial data and map quality issues, spatial data
standards and the law of the sea. Currently he is president of the
Hellenic Cartographic Society and member of national and international
scientific committees.
CONTACTS
Katerina Athanasiou
National Technical University of Athens
School of Rural & Surveying Engineering
9, Iroon Polytechneiou
15780 Zografou
Athens
GREECE
Phone: +30 6948 879545
E-mail:
[email protected]
Efi Dimopoulou
National Technical University of Athens
School of Rural & Surveying Engineering
9, Iroon Polytechneiou
15780 Zografou
Athens
GREECE
Phone: +30 210 7722679
Fax: +30 210 7722677
E-mail: [email protected]
Website: http://www.survey.ntua.gr
Christos Kastrisios
Cartography Laboratory
Faculty of Rural and Surveying Engineering
National Technical University of Athens
9, Iroon Polytechneiou
15780 Zografou
Athens
GREECE
Phone: +30 6936 799258
E-mail: [email protected]
Lysandros Tsoulos
Faculty of Rural and Surveying Engineering/ Cartography Laboratory
National Technical University of Athens
9, Iroon Polytechneiou
15780 Zografou
Athens
GREECE
Phone: +30 210 7722730
Fax: +30 210 7722734
E-mail:
[email protected]
Website: http://www.survey.ntua.gr