PROTECTION OF THE MARINE ENVIRONMENT
The world's oceans comprise about 70 percent of the surface of planet earth. A report published in the journal Science in 20081, analyzing 17 global data sets of anthropogenic impacts on the world's oceans, found that no area of the oceans is unaffected by human activity and that over 41 percent of the oceans of the world are "strongly" fouled by pollutants. Only 3.7 percent of the oceans have small impacts from humans; these areas lie near the North and South Poles. In this chapter we address in comprehensive fashion international law concerning marine pollution, marine living resources, and protection of marine ecosystems. Because international law concerning the protection of the marine environment is part of the larger corpus of the international law of the sea, we first present a "bird's eye view" of the law of the sea as codified in the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The student should read the text of UNCLOS, portions of which are reprinted in the Documentary Supplement.
SECTION I. The Marine Environment and the Law of the Sea
A. The UNCLOS "Constitution" for the Law of the Sea
The provisions of UNCLOS are often compared to constitutional provisions for the law of the sea.2 UNCLOS provides very comprehensive rules on the law of the sea: virtually every aspect of mankind's use and abuse of the world's oceans is addressed to some degree by this Convention. But despite the comprehensive nature of UNCLOS, many of its rules are unclear, ambiguous and disputed. The full scope of UNCLOS is beyond the scope of this book, but for those who are unacquainted with this Convention, we provide a brief overview of this landmark agreement in order that the body of international law relating to protection of the marine environment may be better understood. The international law relating to protection of the marine environment must be learned in the context of the larger body of law represented by UNCLOS. And UNCLOS itself, as we shall see, addresses to some extent all aspects of protection of the marine environment, although by necessity in such a fashion as to require further agreements on more specific rules of law.3
UNCLOS, which was concluded at Montego Bay, Jamaica, December 10, 1982, was the culmination of several attempts to codify the international law of the sea in the twentieth century. In the 1930s, the League of Nations convened a conference at the Hague for the purpose of concluding an agreement on the law of the sea, but this conference adjourned without agreement. In the post-World War II period, the first United Nations Conference on the Law of the Sea (1958) concluded four separate treaties: (1) the Convention on the Territorial Sea and the Contiguous Zone; (2) the Convention on the High Seas; (3) the Convention on the Continental Shelf; and (4) the Convention on Fishing and Conservation of the Living Resources of the High Seas: A second United Nations Conference on the Law of the Sea in 1960, was unsuccessful. A third United Nations Conference on the Law of the Sea was convened by the General Assembly of the United Nations in 1973, which produced UNCLOS, the Montego Bay Treaty. On November 16, 1994, the UNCLOS formally entered into force. At this writing 161 states and the European Union are parties to UNCLOS. The United States is the only significant country that is not a party to this important Convention.
UNCLOS reversed centuries of customary law of freedom of the seas by extending formal recognition to several categories of ocean zones that are under the jurisdiction and control of coastal states; nevertheless, freedom of navigation over ocean space is largely maintained despite the recognition of such national zones.
UNCLOS comprises 320 articles and includes nine annexes and two "implementing conventions". UNCLOS is subdivided into 17 parts as follows:
Part I of UNCLOS (Art. 1) is titled “Introduction". This part sets out some important definitions of terms used in the Convention.
Part II of UNCLOS (Arts. 2-33) is devoted to the maritime zones known as the territorial sea and the contiguous zone. Every coastal state has the right to establish a territorial sea of up to 12 nautical miles (Art. 3), measured from its coastal baseline, as well as a contiguous zone of an additional 12 nautical miles where the state may enforce its customs, fiscal and other laws (Art. 33). The right of "innocent passage" of ships of all nations, including military vessels, is also defined and preserved (Arts. 17-32).
Part III of UNCLOS (Arts. 34-45) deals with maritime straits used for international navigation. This part establishes international rules and a right of "transit passage" for ships and aircraft through such straits.
Part IV of UNCLOS (Arts. 46-54) addresses the issue of archipelagic states, establishing rules for determining the baselines of such states, the measurement of the breadth of the territorial sea, the contiguous zone, and the continental shelf, the legal status of archipelagic waters, and rules for the innocent passage of ships and aircraft.
Part V of UNCLOS (Arts. 55-75) establishes the right of each coastal state to an Exclusive Economic Zone (EEZ) of up to 200 nautical miles, measured from the coastal baseline of the state. This Part also addresses the conservation and utilization of living resources in this zone, a topic that will be addressed below in this chapter.
Part VI of UNCLOS (Arts. 76-85) recognizes the right of coastal states to jurisdiction and control over their Continental Shelves, the seabed and subsoil of offshore submarine areas, to distances of 200 nautical miles from the coastal states' respective baselines. UNCLOS recognizes and sets out rules for extending control of the Continental Shelf beyond 200 miles and establishes a Commission on the limits of the Continental Shelf to make recommendations to coastal states concerning this process.
Part VII of UNCLOS (Arts. 86-120) sets out legal rules to govern the use of the High Seas, areas of the oceans beyond national jurisdiction, as well as rules relating to navigation and the conservation and use of living resources in the High Seas.
Part VIII of UNCLOS (Art. 121) deals with islands and their maritime zones.
Part IX of UNCLOS (Arts. 122-123) establishes rules concerning Enclosed or Semi-Enclosed Seas.
UNCLOS Part X (Arts. 124-132) guarantees the right of access to the sea and freedom of maritime transit to land locked states.
Part XI of UNCLOS (Arts. 133-19 1) creates a legal regime to govern what is called "the Area", the deep seabed beyond national jurisdictions. The Area is declared to be "the common heritage of mankind" (Art. 136)4, and no state may claim sovereignty over any part of the Area or its resources (Art. 137). UNCLOS establishes an International Seabed Authority (ISA) as an autonomous international organization headquartered in Kingston, Jamaica, to set policy and to administer the exploitation and the protection of the Area. The ISA includes five bodies: the Assembly, the Council, the Legal and Technical Commission, the Finance Committee and the Secretariat.5 The supreme organ of the ISA is the Assembly, which consists of a iiiSA members. The Assembly elects the members of the Council and other bodies; appoints the Secretary-General, who is head of the Assembly, sets the ISA's budget, approves rules and regulations after they are considered and adopted by the Council, and makes financial and technical decisions concerning deep-sea mineral exploitation. The comprehensive set of rules and regulations issued by the ISA is called the Mining Code6, which also includes the forms necessary to apply for seabed exploration rights as well as the standard terms of exploration contracts.
Part XII of UNCLOS (Arts. 192-237) concerns protection and preservation of the marine environment; we consider these articles in detail immediately following this section.
Part XIII of UNCLOS (Arts. 238-265) establishes rules for marine scientific research.
Part XIV of UNCLOS (Arts. 266-278) contains rules to govern the development and transfer of marine technology.
UNCLOS MARITIME ZONES
UNCLOS RULES ON THE CONSTRUCTION OF COASTAL BASELINES
Part XV of UNCLOS (Arts. 279-299) contains important provisions on the settlement of disputes. UNCLOS establishes a system of compulsory dispute settlement for international maritime disputes, although this system contains several important exceptions. We consider dispute settlement in detail below.
UNCLOS Part XVI (Arts. 300-304) contains general provisions on good faith and abuse of rights, disclosure of information, archaeological and historical objects found at sea, and responsibility and liability for damage. The latter provision (Art. 304) preserves the application of existing and future rules on responsibility and liability under international law.
UNCLOS Part XVI I (Arts. 305-320) contains Final Provisions on matters such as entry into force of the convention, reservations (none are permitted), the relationship of UNCLOS to other international instruments, and amendment procedures.
B. The Status of UNCLOS in United States Law
Although the United States delegation was very active in helping to formulate most of the provisions of UNCLOS, the United States voted against the final text of the Convention and at this writing is not a party to UNCLOS. The US rejection of the Convention in the 1980s was based primarily upon the seabed mining regime (Part XI), which, because of mandatory technology transfer provisions and production quotas and other provisions, was regarded as unfavorable to the US and other developed countries. In 1994, a new Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea was adopted by the United Nations' General Assembly. This Agreement, which is reprinted in the Documentary Supplement and will be considered in more detail later in this chapter, restructured the JSA to give the United States veto power over key decisions, guarantees the US a seat on the Council and ends mandatory production quotas and transfer of technology, in favor of free market principles.7 After the adoption of this Agreement, which is effectively an amendment to UNCLOS, Presidents Clinton, Bush and Obama, have called on the US Senate to ratify UNCLOS, but the U.S. Senate has not taken this step.
In 1983, President Ronald Reagan formally proclaimed a US Exclusive Economic Zone of 200 nautical miles and announced that the United States "will recognize the rights of other states in the waters off their coasts, as reflected in the Convention," and the UNCLOS is largely observed by the United States as binding customary international law.8 1n 1988, President Reagan proclaimed an extension of the US territorial sea to 12 nautical miles in accordance with the Convention.9 In 1994, when President Clinton signed the 1994 Agreement, he pledged that the US is committed to provisional application of the UNCLOS seabed regime, as modified by the 1994 Agreement.10 The US is an observer at the meetings of the International Seabed Authority.
Should the United States become a party to UNCLOS? If you were a member of the Senate of the United States, would you vote in favor of ratification?
Some arguments in favor of ratification:
Enhancement of US security interests in the world's oceans
Protection of US economic and environmental interests
Participation by US in key decisions made by the UNCLOS institutions
Participation by US in process of adjudicating and processing claims over ocean resources
Some arguments against:
The US would be bound by the mandatory dispute settlement provisions of UNCLOS and would be subject to unwarranted lawsuits in international tribunals
The ISA is still dominated by developing countries hostile to US interests
The US has little to gain by ratification since its interests are already guaranteed by customary international law.
C. UNCLOS Part XII: Protection and Preservation of the Marine Environment
Part XII of UNCLOS contains substantive standards for the protection of the marine environment against all forms of environmental degradation. This Part also establishes an important legal framework for further agreements to deepen comprehensive protection of the marine environment. Many of the provisions of this Part are general in nature and presume the conclusion of more specific implementing agreements.
Please read carefully the UNCLOS Part XII, Articles 192 to 237, in the Documentary Supplement.
The obligations in section 1 (Arts. 192 to 196) of Part XII are quite general but they are comprehensive and important. Parties have the right to exploit natural resources in their sovereign control, but also must prevent, reduce, and control marine pollution from all sources and to take "all necessary measures" to ensure that such pollution does not spread beyond national jurisdictions. The legal standard for marine pollution control that states must apply as set out in Article 194(1): States must use the "best practical means at their disposal and in accordance with their capabilities." Parties also must prevent, reduce and control pollution resulting from the use of technologies under their jurisdiction and prevent the accidental or intentional introduction of alien or new species into the marine environment.
Article 1(4) of UNCLOS defines "pollution of the marine environment" as:
"the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water an reduction of amenities."
In addition, Article 194(5) requires parties to take measures to preserve "rare and fragile marine ecosystems" and the marine habitats of rare and endangered species. Article 195 takes a holistic approach: in taking measures to control marine pollution, parties may not transfer damage or transform one type of pollution into another.
The comprehensive obligations of Section 1 are reinforced by UNCLOS Part XII, section 2 (Arts. 197 to 201), which requires state-parties to cooperate on a global or regional level, to have contingency plans to cope with pollution, and to employ scientific criteria for the regulation of polluting activities.
Section 3 (Arts. 202-203) requires technical assistance to developing states on preferential terms to improve their capacity to protect the marine environment.
Section 4 (Arts. 204 to 206) requires states to monitor and publish the risks and effects of pollution and related activities.
Section 5 reinforces the preceding general obligations by stating separate obligations to control the various sources of marine pollution: (1) land-based sources (Art. 207); (2) pollution from continental shelf activities (Art. 208); (3) pollution from activities in the Area (Art. 209); (4) pollution from dumping (Art. 2 10); (5) pollution from vessels (Art. 2 1 1); and (6) pollution from the atmosphere (Art. 212).
UNCLOS requires states to adopt national standards for each source of marine pollution that are at least as strict as international standards, with the exception of land-based pollution standards, which must "take into account" international rules and the economic capacity of developing states. Standards for toxic pollutants, however, must minimize such pollution "to the fullest extent possible."
UNCLOS clearly contemplates, therefore, that state-parties will cooperate to develop international legal rules for all sources of marine pollution.
Enforcement of national and international rules is addressed by section 6 of Part XII, Articles 213 to 222. Note that enforcement of marine pollution rules is up to national authorities. Enforcement may be carried out by (1) the flag state; (2) by the port state; and (3) by the coastal state. Which state has priority? What are the criteria for enforcement activities by each category of state?
Note that under Articles 2 19 and 221, states may take the initiative to avoid or prevent pollution from unseaworthy vessels or vessels involved in marine casualties.
Section 7 (Arts. 223-233) covers safeguard measures designed to facilitate cooperation in enforcement activities. Note Article 228 and compare Article 229. Are these safeguard provisions really necessary?
Section 8 (Art. 234) is a special provision for control of pollution in ice-covered areas.
Section 9 (Art. 235) preserves the international law of state responsibility with respect to marine pollution obligations and mandated cooperation to conclude international regimes for liability and compensation for marine pollution damages.
Section 10 (Art. 236) preserves the international law of sovereign immunity for warships and government-operated ships for non-commercial purposes.
Section 11 (Art. 237) requires states to observe the obligations they assume in additional international agreements relating to protection of the marine environment. Thus UNCLOS does not purport to be a complete code, but looks toward additional international agreements addressing more specific problems of environmental protection.
Note that the provisions of Part XII build up on Principle 7 of the Stockholm Declaration of 1972, (covered in chapter 2), which urged states to take "all possible steps" to prevent hazards to human health and marine life.11 Is Part XII consistent with the Rio Principles we covered in chapter 2, such as the Prevention Principle and the Principle of Sustainable Development?
Agenda 21, Chapter 7 of the Report of the United Nations Conference on Environment and Development establishes a seven point agenda for preserving and protecting the marine environment building upon UNCLOS Part XII. Agenda 21 represents a program for future action by national governments and international organizations. We reprint this part of Agenda 21 in the Documentary Supplement.
D. Dispute Settlement under UNCLOS
Read carefully the provisions of UNCLOS Part XV, Articles 279 to 299.
The dispute settlement of UNCLOS are very complex, reflecting difficult negotiations between those states that wanted compulsory dispute settlement and those states that did not want to be pinned down to utilize international dispute settlement procedures. Let us analyze these articles.
Article 279 obliges parties to seek and use peaceful methods of dispute settlement as required by the United Nations Charter. Note that section 1 of Part XV gives state-parties three options:
First option: Article 280 states that parties to a dispute can agree among themselves on the appropriate means or procedure to settle their dispute.
Second option: Article 282 states that where parties to a dispute have agreed, through a general, regional, or bilateral agreement, or otherwise, on a procedure that entails a binding decision, that procedure shall apply at the request of any party to the dispute. Note that such an agreed dispute settlement procedure takes precedent to the dispute settlement procedures under UNCLOS, in any event. We will see that this provision can be used to oust a dispute from the UNCLOS dispute system.
Third option: Article 284 provides that the parities by agreement can submit the dispute to non-binding Conciliation under the procedure established under UNCLOS Annex V or some other conciliation procedure. Note, however, that this procedure applies only if parties to a dispute agree, and the procedure leads only to a non-binding conciliation recommendation.
Section 2 of Part XV, Article 2 86, provides that if the state-parties have not reached any agreement on a procedure under section 1, section 2--compulsory jurisdiction entailing a binding decision---will apply to the settlement of the dispute.
Article 287 details the compulsory procedures that will lead to a binding decision settling the dispute:
Upon each state-party's acceptance of UNCLOS or thereafter, the state-party "is free to choose, by means of a written declaration" one or more of four dispute settlement methods:
The International Tribunal for the Law of the Sea (ITLOS), a specialized tribunal constituted under UNCLOS Annex VI. The ITLOS has its seat of operations in Hamburg, Germany and consists of 21 independent persons, no two of which can come from the same state, elected by two-thirds majorities by the states-parties, who serve renewable nine-year terms. The ITLOS was established in 1996, and at this writing has rendered decisions in nineteen cases. See http://ww.itlos.org.
The International Court of Justice
An Arbitral Tribunal constituted under UNCLOS Annex VII, which provides for an Arbitral Tribunal composed of five persons, who have the power to render a final and binding decision settling the dispute.
A Special Arbitral Tribunal constituted in accordance with UNCLOS Annex VIII , which provides for an Arbitral Tribunal of five persons with expertise in fisheries, marine environment, marine research, or navigation. The decision of this Tribunal is "conclusive" as between the parties unless they otherwise agree.
Article 287 provides, however, that, if a state-party is not covered by a declaration in force, it will be deemed to accept Annex VII Arbitration. Thus, a state-party cannot escape binding dispute settlement, and Annex VII Arbitration is the default dispute settlement method.
If, however, state-parties having a dispute have all accepted the same one of the four above methods of dispute settlement, this method will apply. If different methods have been accepted by the state-parties to the dispute, Annex VII Arbitration will apply.
Section 3 of Part XV creates important limitations and exceptions to the compulsory dispute settlement regime of section 2.
Article 297 contains three automatic limitations to section 2.
First, disputes concerning the exercise of its sovereign rights or jurisdiction by a coastal state as granted by UNCLOS are subject to the compulsory dispute settlement procedures of section 2 only
If it is alleged the coastal state has contravened UNCLOS with respect to rights of freedom of navigation, overflight, laying cables or pipelines, or lawful uses of the sea specified in UNCLOS Article 58 (stating the rights of non-coastal states in exclusive economic zones).
If it is alleged that the non-coastal state exercising the freedoms of navigation, overflight, laying of cables and pipelines, has contravened laws of the coastal state that are compatible with UNCLOS or other rules of international law.
If it is alleged that the coastal state has acted in contravention of international rules protecting the marine environment which are applicable in the coastal state as established by UNCLOS or through a competent international organization.
Second, marine scientific research disputes are to be settled under section 2, except that a coastal state may reject compulsory dispute settlement for a dispute involving UNCLOS Article 246 (the right of a coastal state to regulate research in its EEZ or continental shelf) or UNCLOS Article 253 (the right of a coastal state to suspend research in its EEZ or continental shelf). Such disputes must, however, be remitted to non-binding Conciliation under Annex V, but the coastal state's exercise of discretion as permitted under the UNCLOS must be respected.
Third, disputes concerning fisheries are to be settled under section 2, except that a coastal state may reject compulsory dispute settlement "for any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations." The excluded types of fisheries disputes must, however, be submitted to Conciliation under Annex V if it is alleged that the coastal state has manifestly failed to comply with its obligation to conserve and manage living resources in its EEZ; or has arbitrarily refused to determine, at the request of another state, its allowable catch; or has arbitrarily refusing to permit other state's from harvesting a surplus in its EEZ, or is closing out fishing by nationals from land-locked or geographically disadvantaged states. But the Conciliation Tribunal must respect the discretion of the coastal state involved in such cases.
In addition, Article 298 of UNCLOS specifies three optional exceptions to the compulsory and binding dispute settlement under section 2 that may be invoked by state-parties to UNCLOS on accepting the Convention or at any time thereafter:
First, a state party may exclude any dispute involving sea boundary delimitations (Arts. 15, 74, and 83) or those involving historic bays or titles. Such disputes must, however, be submitted to Conciliation under Annex V unless they involve an unsettled territorial or sovereignty dispute.
Second, a state-party may exclude disputes involving military activities or aircraft engaged in non-commercial service or law enforcement activities in regard to the exercise of sovereign rights or jurisdiction.
Third, a state-party may exclude disputes that are before the United Nations Security Council.