Protection and Preservation of Marine Environment under the International Law of the Sea -By Tanjila Tamanna
One of the most significant signs of progress in the field of international law was the increasing concern for the status of the marine environment. The environmental degradation of the ocean is defined as a global issue. Overfishing, vessel, and land-based pollution, environmentally unfriendly exploitation of mineral resources, as well as the destruction of marine biodiversity, are the concerns of all humanity. The protection and preservation of the marine environment was one of the key issues at the 1972 Stockholm conference and is clearly reflected in the flurry of lawmaking in this area in the early 1970s. The negotiation of United Nation Convention on Law of the Sea (UNCLOS III), which commenced in 1973, was inspired by these developments, Part XII of the resulting UNCLOS with 46 Articles devoted to the marine environment. The Articles of the UNCLOS Convention concerning the general rights and duties of all states to protect and preserve the marine environment clearly reflect the interest of developing countries in emphasizing the special responsibilities of industrialized nations in the field of the protection and preservation of the seas. The words “and in accordance with their capabilities,” which are often used in the UNCLOS III, indicate the special responsibilities of the industrialized world.
The Legal Framework for the protection of the Marine Environment
At present, the UNCLOS III is the treaty which provides general obligations to prevent land-based pollution. In this respect, Article 194(3) (a) stipulates that measures taken pursuant to Part XII shall include, inter alia, those designed to minimise to the fullest possible extent “the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping”. More precisely, the UNCLOS III provides provisions regarding to the regulation of land-based pollution. Article 207 (1) calls upon States to adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources, “taking into account internationally agreed rules, standards and recommended practices and procedures”. States are also under the duty to take other measures as may be necessary to prevent, reduce and control such pollution in accordance with Article 207 (2). In relation with this, Article 207 (3) places an explicit obligation upon States to endeavor to harmonize their policies in this connection at the appropriate regional level. Furthermore, Article 207 (4) obliges States to endeavor to establish global and regional rules preventing pollution from land-based sources, and to harmonize their policies in this connection at the appropriate regional level. Article 213 ensures that States shall enforce their laws and regulations adopted under Article 207 and take other measures necessary to implement applicable international rules and regulations.
It should be noted that the obligation preventing pollution from land-based sources in the 1982 UNCLOS is weaker than that concerning pollution from other sources. With respect to pollution from sea-bed activities subject to national jurisdiction, pollution from dumping as well as pollution from vessels, States are under the obligation to adopt laws and regulations which shall be no less effective than international rules and standards. Concerning pollution from land-based sources, however, States are required only to “take into account” internationally agreed rules etc. when adopting relevant laws and regulations. Thus, States may adopt measures which are either more or less severe than those embodied in international law. Moreover, it is also a matter for the judgment of each State what measures shall be taken.
Pollution from seabed activities is caused by the release of harmful substances arising directly from the exploitation, exploration, and processing of seabed materials. It accounts for only 1 percent of pollution of the marine environment, although in certain regions, such as Arabian Gulf, the proportion considerably high due to oil exploitation activities. In April 2010, the explosion of the Deep Water Horizon, a semi-submersible off-shore oil-drilling region in the Gulf of Mexico raised concern about the dangers of these operations. Eleven people died and about 4.9 million barrels of crude oil were released over a period of three months. Some ecological were felt in the United States, commercial and recreational fisheries were closed for several months, with some for up to a year, following the accident.
Article 208 of UNCLOS III requires the coastal States ‘to prevent, reduce and control pollution of the marine environment arising from or in connection with seabed activities subject to their jurisdiction and from artificial islands, installations, and structures under their jurisdiction, Such laws, regulations, and measures shall be no less effective than international rules, standards and recommended practices and procedures. States should also establish global and regionals rules, standards, and recommended practices.
The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1972), along with the later 1996 Protocol, (commonly referred to as the “London Convention” and the “London Protocol” respectively) are international agreements that restrict intentional disposal of certain materials in the oceans. The International Maritime Organization (IMO), a specialized agency of the United Nations, performs the Secretariat duties related to both the Convention and the Protocol. The Convention groups various wastes into one of three categories in Annex I, II, and III (commonly referred to as the Black List, the Grey List, and the White List).
All States parties to UNCLOS are legally bound to adopt laws and regulations and take other measures to control pollution by dumping, and they must be no less effective than the global rules and standards in terms of UNCLOS III Article 210, which are considered to be those of the London Convention 1972. They will also be obliged to enforce such laws and regulations as is required by Article 216 of UNCLOS.
Multilateral instruments which govern the regulation of vessel-source pollution, particularly the International Convention for the Prevention of Pollution from Ships (“MARPOL 73/78”), which is the primary treaty dealing with this issue. In the realm of marine environmental protection, the International Maritime Organization (IMO) has sponsored numerous diplomatic conferences aimed at the regulation and control of vessel-source marine pollution. These conferences produced conventions and treaties which set out generally-accepted international pollution standards. These standards are commonly classified as discharge standards, navigation standards, and construction, design, equipment and manning (known cumulatively as CDEM) standards.
Marine environmental protection and the jurisdiction sought to be exercised over vessels by the three groups of states with competing interests in this matter – namely the flag, coastal, and port states. States shall adopt laws and regulations for the prevention, reduction, and control of pollution of the marine environment from vessels flying their flag or of their registry. Such laws and regulations shall at least have the same effect as that of generally accepted international rules and standards established through the competent international organization or general diplomatic conference. The problem has always lain in ensuring flag state compliance with these prescribed standards, and in securing the cooperation of all flag states to diligently prosecute offending vessels. To the extent that this problem with flag states remains unresolved, the affirmation of flag state obligations does little to improve upon the regulation of vessel-source marine pollution.
Regarding Coastal States jurisdiction, Coastal States may, in the exercise of their sovereignty within their territorial sea, adopt laws and regulations for the prevention, reduction, and control of marine pollution from foreign vessels, including vessels exercising the right of innocent passage. Such laws and regulations shall not hamper innocent passage of foreign vessels. The Coastal States may in respect of their exclusive economic zones adopt laws and regulations for the prevention, reduction, and control of pollution from vessels.
Due diligence for the protection of environment and application of the precautionary principle
The principles of ‘due diligence’ or ‘due care’ with respect to the environment and natural wealth and resources are among the first basic principles of environmental protection and preservation law. Apart from constant monitoring, there is an increasing emphasis on the duty of States to take preventive measures to protect the environment. It can be taken to mean that it adopts a parental attitude towards the environment, protecting it from potential harm by acting on foresight and avoiding unacceptable risks. The precautionary principle is included in the Rio Declaration, Principle 15 which states: Where there are threats of serious of irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
Several international instruments and case law decisions have been identifying with different connotations for the Precautionary Principle. The Report of the Governing Council on the Work of its Fifteenth Session of the UNEP recommended in 1989 that all Governments adopt “the principle of precautionary action”, as the basis for their policies, drawn up to prevent and eliminate marine pollution. It should be noted that several States have included the precautionary principle le in their domestic laws, including Germany, Australia, Canada, New Zealand, South Africa and Israel, particularly in terms of fisheries.
However, UNCLOS does not include a specific reference to this principle, although covering perfectly, among other matters regarding the preservation of the marine environment. However, the precautionary approach is reflected in various Articles of UNCLOS, notably Articles 194, 204 and 206, as well as in the definition of pollution in Article1.
In terms of the precautionary principle, international jurisprudence is focused on a few cases, such as: French Nuclear Tests (ICJ, 1995), Gabikovo-Nagymaros (ICJ, 1997), Beef Hormones (WTO Appellate Body, 1997), Agricultural Products(WTO Appellate Body, 1998), Southern Bluefin Tuna (ITLOS, 1999), MOx Plant Case and Land Reclamation Case (ITLOS, 2003) in addition to some other cases held by the European Court of Justice.
State Responsibility and Marine Environment
Three levels of State responsibility have been identified by scholars in relation to the environment: The most traditional one is that related to responsibility on the basis of fault or lack of due diligence; at the intermediate level, one finds the objective or strict responsibility, which is related to an obligation of result; the obligation not to damage the environment and the violation of which will engage responsibility regardless of fault. UNCLOS regime is mostly based on the due diligence test, an obligation of result involving objective or strict liability is found in the Convention on Environmental Modification Techniques, and finally, absolute international liability is found in the Convention on International Liability for Damage Caused by Space Objects.
UNCLOS and related treaties have significantly developed the rules of international law applicable to the preservation of the marine environment and illustrate the evolution of State responsibility in this regard. Part XII of UNCLOS, dealing with the Protection and Preservation of the Marine Environment, imposes a general obligation on States to protect and preserve the marine environment and States also have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment. Under Article 194(2) of UNCLOS, States, shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.
The International Law Commission’s (“ILC”) Draft Articles on the Responsibility of States for Internationally Wrongful Acts (“Draft Articles on State Responsibility”) contain customary international law rules that support this conclusion. The Draft Articles on State Responsibility provide that a breach of an international obligation occurs when conduct attributed to a State equates with a failure by that State to comply with its international obligations. A basic premise of the Draft Articles on State Responsibility is that every internationally wrongful act or omission of a State entails responsibility of that State. Under the Umbrella of internationally wrongful acts is the refusal to fulfill a treaty obligation. Therefore, the failure of states to live up to their UNCLOS obligations is properly seen as internationally wrongful act.
Though much work remains to be done on the protection and preservation of marine environment retain fully or in part, but it should be admitted that States have the accountability to ensure an eco-friendly marine environment. The Convention provides a set off rules and regulations and standards to conserve marine environment. What needs to be done is to balance, in more concrete terms. In this respect, States should harmonize and enforce environmental standards and rules to ensure prompt and adequate remedy in respect of damages caused by contamination of the marine environment.
Tanjila Tamanna is Lecturer in Law at the University of Development Alternative, Bangladesh.