II. Protection of the Marine Environment under UNCLOS

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1 I. Introduction the relevant legal source is the UN Convention on the Law of the Sea (UNCLOS), which was adopted in 1982 and entered into force in 1994; it can be considered to be the Constitution of the Seas and contains a separate part XII for the protection and conservation of the marine environment. UNCLOS is a framework convention, which is subject to specification on universal, regional and national level by way of further treaties. the majority of the numerous relevant treaties refer to particular aspects of marine protection such as the introduction of material into the marine environment, shipping as a source of pollution, the introduction of waste ( dumping ) and the protection of marine resources (protection of species and stocks) II. under UNCLOS Part XII of UNCLOS refers primarily to the pollution of the marine environment, not to the protection and sustainable use of marine species regarding the protection of species and fish stocks, the pertinent regulations were foremost placed within the context of the Economic Exclusive Zone (EEZ) and the High Seas, thus the protection is spatialized; this implies that the living resources are distributed amongst different actors. it should be noted, though, that according to Art. 194 (5) UNCLOS measures taken in accordance with Part XII shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life 1

2 some authors suggest that Art. 194 (5) UNCLOS provides the basis for the authorization of a coastal State to take measures in regard to the protection of stock and species if this view is followed, a coastal state would be able to rely on Art. 56 (1) (b) (iii) UNCLOS in conjunction with Art. 194 (5) UNCLOS in order to designate protected areas in its EEZ from which ships of other States could be excluded interpreted correctly, however, Art. 194 (5) UNCLOS cannot be understood as a norm providing for the competence to establish individual protection measures; it rather represents a mere opening clause ; this arises from the reservation in accordance with this part, which refers among others to Art. 194 (1) UNCLOS, which itself requires that all measures in relation to the protection of the marine environment shall be consistent with this Convention. As to the designation of marine protected areas in the EEZ, Art. 211 (5) UNCLOS contains a special regulation which must be respected according to Art. 194 (1) UNCLOS it follows from the foregoing that the structural principles set out in Part XII UNCLOS (precautionary principle etc) not only apply for the protection of the marine environment in regard to pollution, but also for the protection of species and stocks this has been confirmed by the International Tribunal of the Law of the Sea (ITLOS) in the Southern-Bluefin Tuna Case: Considering that the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment (ITLOS Reports 1999, 280, 295) UNCLOS is consequently based on a holistic approach, with the primary focus being on the issue of sustainable development 2

3 cf. also Paragraph 3 of the Preamble to UNCLOS : Conscious that the problems of ocean space are closely interrelated and need to be considered as a whole. 1. Structure and General Principles of Part XII UNCLOS Part XII UNCLOS opens with the general and comprehensive Article 192, according to which states are obliged to protect and preserve the marine environment this legal obligation is also applicable under customary international law; it is debatable, however, whether it is an obligation erga omnes (the consequence would be that infringements can be sanctioned by all states [controversial!]; probably no persistent objection possible) Art. 192 on one hand and Art. 194 on the other symbolize the traditional antagonism between the State s interest in protecting the environment and the use of the marine resources; but note that the wording of Art.193 UNCLOS only refers to the resources located in areas within the limits of national jurisdiction of all the general principles of international environmental law, only the prohibition against transboundary environmental harm (Art. 194 (2) UNCLOS) and the principle of origin (cf. Art. 195 UNCLOS; the transfer of damage would conflict with the principle that pollution must preferably be countered at its origin) are explicitly mentioned in Part XII UNCLOS but: as shown above, the precautionary principle is contained implicitly (Art. 194 (5) UNCLOS) in Part XII UNCLOS and must, therefore, also be considered as forming part of the legal framework concerning the protection of stocks and species 3

4 although Art. 194 (1) UNCLOS only mentions the prevention, reduction and control of pollution of the marine environment (which rather militates in favour of the preventative principle [= the prevention of environmental hazards]), the relevance of the precautionary principle results from the definition of pollution in Art. 1 (1) No. 4 UNCLOS ( the introduction by man, directly or indirectly, of substances or energy [...], which results or is likely to result in such deleterious effects as harm to living resources [...] ) cf. also the ITLOS in the Southern Bluefin Tuna-Case: the parties should in the circumstances act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the stock of southern bluefin tuna (ITLOS Reports 1999, 280, 296) however: as a result of the lack of codification within the framework of UNCLOS, one cannot assume that in the case that a State denies the hazardous nature of one of its actions, the burden of proof is imposed on that State (no reversal of the burden of proof; the contrary result is only valid within the framework of the regional OSPAR-Convention); a.a. Request for an Examination [...], Diss. Opinion Weeramantry, ICJ Reports 1995, 287, 317, 343 the general rules of Arts UNCLOS are followed by Arts UNCLOS which contain special provisions in respect of marine pollution from different sources (land-based sources; introduction of foreign substances; activities on the Continental Shelf and in the Area; pollution from the air or through the air; by shipping), as well as by corresponding specifications with regard to the enforcement of the material legal rules (Arts UNCLOS) 4

5 all of these provisions, even though they are only directed at one source of pollution respectively, are subject to further specification on the universal, regional and national level 2. Specification on the universal level a) Pollution from land-based sources in respect of land-based pollution, which is responsible for 2/3 of the marine pollution, attempts to negotiate an universal agreement have so far remained unsuccessful; previous endeavours have only resulted in the legally non-binding Programme of Action for the Protection of the Marine Environment from Land-Based Activities (UN Doc A/51/116, Annex II) however: land-based pollution is the primary task of terrestrial environmental and freshwater protection (see, e.g. the Water Framework Directive of the European Community, which includes coastal waters) b) Pollution by dumping with regard to the type of pollution being qualified as dumping, the specification of the UNCLOS provisions concerned is provided by the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter of 1972, commonly called the London Convention ; UNCLOS refers to this treaty in Art. 210 (6) by means of a reference to the words global rules and standards, thereby establishing a minimum standard consequently, States parties to UNCLOS are indirectly bound to the London Convention, no matter if they have acceded to it or not 5

6 from the perspective of the pacta tertiis rule, this is in principle unproblematic, as the States are free to voluntarily subject themselves to the obligations contained in other treaties upon their accession to UNCLOS it is not clearly resolved, however, whether and, as the case may be, to what extent this applies for future changes or revisions of the London Convention; a possible though not entirely exact differentiation parameter is whether the system contained in the Convention is subject to a fundamental change such as, e.g., the one embodied in the London Protocol of 1995 the relation between UNCLOS and treaties concluded prior to UNCLOS is further regulated in Art. 237 UNCLOS (which is lex specialis to Art. 311 UNCLOS), according to which previously concluded treaties take precedence, as long as they are carried out in a manner consistent with the general principles and objectives [of UNCLOS] the London Convention does not contain a general prohibition of dumping, but it is based on a listing-approach: Whereas materials listed in Annex I ( black list ) may generally not be dumped (e.g. oil, plastic, highly radioactive material), the dumping of Annex II materials ( grey list ) is permissible subject to a specific permission, as well as the dumping of any other material or waste (not included in any of the two Annexes) is permissible subject to a general permission hence, according to system of the London Convention there exists, in principle, the freedom to dump waste This approach was fundamentally changed with the entry into force of the London Protocol which was adopted in 1996 and came into force in 2006; the Contracting Parties are now obliged to prohibit the introduction of waste or materials; only those materials and wastes listed in Annex 1 may on subject to permission be introduced ( reverse listing ) 6

7 according to the London Protocol there exists a general prohibition to dump in view of the small number of accessions to the London Protocol, the Contracting Parties to the London Convention have in recent years partially aligned its provisions to the ones contained in the Dumping Protocol by means of enlarging the black-list in the tacitacceptance procedure c) Pollution from shipping the specification of this type of pollution is essentially made effective through the detailed guidelines of the International Convention for the Prevention of Pollution From Ships of 1973 (MARPOL) with its 6 Annexes and the Protocol from 1978 MARPOL is a framework Convention which was negotiated under the auspices of the IMO; besides some very general principles and rules, the Convention merely contains procedural regulations on amendments and settlement of disputes MARPOL has 6 annexes which contain the material standards relevant to the prevention of marine pollution from ships Annex I: Pollution of the marine environment by oil (applies automatically to all contracting parties to the Convention) any discharge of oil mud or so-called sludge, which is produced by the operation of ship machines, is forbidden; discharges of oleiferous bilgewater and residues from cargo of oil-tankers are only permitted under very strict requirements and only in small quantities or/and following dilution; normally, such residues are to be dispensed in ports in collecting ponds 7

8 with the 2004 amendments (which entered into in force on 1 January 2007), MARPOL was amended by, inter alia, introducing a time management plan for the phasing out of single-hull tankers Annex II: pollution by noxious liquid substances (applies automatically) Annex III: pollution by harmful substances in packaged form (this is an optional Annex which needs to be ratified) Annex IV: pollution by sewage from ships (optional) Annex V: pollution by garbage from ships (optional) Annex VI (in force since 19 May 2005): prevention of air pollution from ships (optional) contains emissions standards for ships with regard to SOx, NOx and ozone depleting substances, but not in respect of CO2 emissions deals with the creation of SOx emission control areas (SECAs), i.e., special areas within which stricter requirements apply with regard to sulphur emissions, or where vessels must be equipped with an exhaust gas cleaning system or must make use any other technological method to limit SOx emissions (applicable in the Baltic Sea, the North Sea and the Channel) 8

9 note that under the revised Annex VI which was adopted in October 2008 (entry into force 1 July 2010), NOx and particulate matter were recognized as pollutants relevant for the establishment of emissions control areas; these ECAs replace the former SECAs with immediate effect it is currently discussed whether Annex VI may also be used as a basis to restrict greenhouse gas emissions from ships; debates focus on a potential inclusion of international shipping in any kind of emissions trading scheme (global or regional) there is a one general problem which follows from the so-called NMFT-Clause of Art. 5 (4) MARPOL: With respect to the ships of non- Parties to the Convention, Parties shall apply the requirements of the present Convention as may be necessary to ensure that no more favourable treatment is given to such ships. (P): Is this norm compatible with the principle of pacta tertiis nec nocent nec prosunt (Art. 34 VCLT)? this is problematic as according to Art. 6 (2) MARPOL, coastal State authorities may control foreign ships the most conceivable argument in this respect seems to be that since more than 130 States are parties to MARPOL (representing 97% of the world trade tonnage), the Convention is valid under customary international law 9

10 however, this view cannot be accepted in respect of violations of pollution standards which occur seaward the coastal State s territory (= seaward the internal waters and the territorial sea); accepting enforcement competences of the coastal State for such violations would represent an exercise of illegal extraterritorial jurisdiction and, therefore, would significantly exceed international customary law a substantial reason for the lack of acceptance of the Straddling Fish Stock Agreement is that it provides port States with extensive enforcement authority which also covers breaches of measures related to fisheries protection on the high seas (see also Art. 23 of the Fish Stocks Agreement) prevailing opinion: NMFT-Clause has only indirect or factual third party effect which is not covered by Art.34 VCLT it should be noted, though, that Art. 5 (4) MARPOL does not only produce an indirect political effect, but aims at indirectly legally binding third States note also: the compatibility of comparable cases of Art. 2 (6) and Art. 102 (2) of the UN-Charter with the pacta tertiis-rule is controversial it must be borne in mind that enforcement of pollution standards relevant to the EEZ or high seas affects the principle of flag State jurisdiction and, thus, one of the basic rights of States consequently, Art. 5 (4) MARPOL should be interpreted in a restrictive manner in conformity with Art. 3 (1) lit. b MARPOL, whereby the Convention also applies to vessels which are not authorised to sail under the flag of one of the Contracting parties, but which are operating under the jurisdiction of one of the contracting parties 10