Thomas graduated with an honors degree in law in 2005 before pursuing postgraduate study. He later worked for a corporate firm in Edinburgh before deciding that life in a law firm was not for him. He now travels and writes. He has lived in Europe, Africa, South America and Canada and has funded his travels by writing law essays.
Sample
The UN Convention on the Law of the Sea has been described as a remarkable instrument. Do you agree?
This paper will examine the impact of the United Nations Convention on the Law of the Sea (UNCLOS) in relation to protection of the marine environment. It is now trite in both environmental and economic studies for the view to be expressed that “very few things affect the human race collectively as does the state of the Earth.” The link between economic progress and the environment is also beyond dispute. However, despite the acceptance of such principles, the goals of economic progress and environmental protection are still frequently regarded as two incompatible concepts that must be balanced against each other. This means that economic progress and environmental protection are in a constant state of conflict. With the importance that is placed on economic growth, it is reasonable to fear that in many cases environmental protection will lose out to economic development. That is why international legal instruments that are capable of integrating environmental protection norms into customary international law may be described as remarkable. This paper sets out to show how the UNCLOS successfully incorporates such environmental policies into international law and thus show that in the field of environmental protection, the UNCLOS is indeed a remarkable instrument. This is despite the fact that all elements of the UNCLOS cannot as yet be regarded as forming customary international law in its entirety. The International Court of Justice (ICJ) stated in the Continental Shelf (Libya v Malta ) Case ICJ that it is still in the process of examining individual provisions of the UNCLOS on a case by case bases to determine whether or not they form part of customary international law.
Within the field of environmental protection, the Oceans are one of the most pressing priorities. While issues such as ozone depletion and global warming frequently attract global media attention, it must be remembered that oceans comprise 70% of the Earth’s surface area and are regarded as the planets most significant ecosystem. The oceans play an as yet not completely understood role in controlling the climate and conditions of the planet through their interaction with the lithosphere and biosphere. They are also the home to all marine life and, at times, a seemingly limitless source of food, energy, and minerals. They play an important role in human transportation systems, particularly for the transportation of goods and raw materials. However, the ocean’s geo-chemical balance and cycle has been declared under threat in a number of environmental studies and human activity both on land and at sea has been shown to be having a negative impact on the ocean environment. Oil pollution is the largest source of concern.
For these reasons, Part XII UNCLOS is of fundamental importance to the global environment. This part of the Convention deals with marine environment protection and the Convention is the primary source of protection for oceans globally. Article 194(1) UCNLOS requires all state parties to take all steps “necessary to prevent, reduce and control pollution of the marine environment from any source.” Article 1(4) defines pollution as: “[t]he 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 and reduction of amenities.”
The term energy in the definition, it has been suggested, could include such practices as the creation of marine noise due to the use of civil and military sonar equipment and systems. This would deal with issues such as the case in September 2002 when seventeen whales became uncharacteristically stranded along the coast of the Canary Islands. The event coincided with NATO testing of an active sonar system designed to detect silent submarines which was occurring in the vicinity. Environmentalists and marine biologists quickly drew a link between the two events. This was significant given the enormous prevalence of sonar ‘noise’ in the oceans. Therefore, the inclusion of the term ‘energy’ in the definition of pollution in article 1(4) UNCLOS is significant.
The protection of marine biodiversity and the marine environment is not only dealt with in Part XII UNCLOS but its fundamental importance is also set out in the preamble to the treaty. The Convention was drafted and negotiated largely during the 1970s when a number of present technologies, such as the active sonar system referred to above did not exist. However, there are a number of reasons for concluding that article 1(4) UNCLOS is capable of including such technologies in its scope. Such a conclusion would be supported by the fact that the 1992 Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea, which likewise refers to ‘energy’ in its definition of pollution in article 2(1), is explicitly stated to include such technologies as active sonar systems. The use of the term energy would also refer to thermal energy, or heat, which could also constitute a significant harm to marine life. It is suggested here that the ability of the UNCLOS to deal with new forms of oceanic pollution, as and when they are discovered, can be described as remarkable. This is particularly important given the fact that so little is known about the oceans and about the ways in which human activities, particularly new navigation and military technologies, impact on them.
As well as setting out the general obligation to prevent pollution, UNCLOS also develops a framework for how this objective will be met. For example, UNCLOS provides that in the carrying out of scientific research, sea-bed activities, under national jurisdiction, and vessel-source pollution, the obligation to prevent pollution is highlighted in article 240(d). Scientific research therefore cannot be carried out with due regard to its impact on marine biodiversity. Similarly under article 208(1) and (3) all exploration and exploitation of the sea-bed and all activities relating to them must be conducted with particular regard to environmental protection and protection of biodiversity. This obliges parties to ensure that specific measures are carried out to reduce the impact of seismic surveys, drilling and mining that may occur on the sea-bed. Given the impact that oil exploration and extraction has on ocean pollution, it is important to note that oil drilling is thus regulated in the name of environmental protection. While article 208(1) provides very little detail on the specific technical measures that are to be put in place to protect the environment in relation to sea-bed activity, article 208(3) clearly envisions technical standards emerging internationally between the state parties and within specific industries. While globally binding regulations in this area have yet to be developed, UNEP has concluded a non-binding Study of the Legal Aspects Concerning the Environment Related to Offshore Mining and Drilling Within the Limits of National Jurisdiction, which recommended that states begin to develop specific technical measures that limit pollution and the other adverse effects to the environment that offshore drilling and mining can cause. A number of states, notably the UK and Australia have taken the recommendations seriously and have developed detailed technical guidelines dealing with all aspects of environmental concern in offshore drilling, mining and exploration.
Another significant provision of Part XII is article 211 which seeks to minimise the pollution caused by ocean going traffic. This is achieved through measures which seek to either prevent, reduce or control such pollution. Article 211(1) allows states to implement routing measures in order to protect the environment. This is significant as it means that states can protect sensitive or ecologically important areas, such as breeding grounds or coral reefs, by routing all ocean going traffic around the significant area. Article 211 does not dictate the specific measures that are to be implemented in compliance with its terms but, as was the case with article 208, merely provides a framework with the intention that states and the marine industry will flesh out the provision by developing their own specific technical standards, practices and regulations.
The International Convention for the Prevention of Pollution from Ships 1973, as amended by the Protocol of 1978, (MARPOL 73/78) , which entered into force in 1983 provides such standards and regulations. The main aim of MARPOL, as set out in the preamble, article 1(1), is to “achieve the complete elimination of intentional pollution of the marine environment by oil and other harmful substances and the minimisation of accidental discharge of such substances.”
As well as the above mentioned general provisions, UNCLOS article 194(5) also deals specifically with the preservation of rare or fragile ecosystems or areas that contain rare or endangered species. This is achieved by obliging state parties to take special measures to protect such areas above and beyond the general provisions set out above. The provisions enjoys legal support by IMO Resolution A.927(22) (2001) which sets out the manner in which states are to designate Particularly Sensitive Sea Areas (PSSAs). Paragraph 1.2 of Annex 2 of the IMO Resolution defines PSSAs as areas which require special protection due to their recognition as ecologically important areas, socio-economically important areas, or areas of particular scientific interest. This is particularly the case if such areas are susceptible to damage by international shipping. Regulations such as special discharge restrictions, over and above those of MARPOL may be instituted. Thus far, six areas: he Great Barrier Reef in Australia; the Sabana-Camagüey Archipelago in Cuba; Malpelo Island in Columbia; the Florida Keys in the United States, the Wadden Sea in the North Sea (as designated by Germany, Netherlands and Denmark) and the Paracas National Reserve in Peru, have been designated PSSAs.
It is possible to criticise the strength of the environmental protection provisions of UNCLOS and the degree to which they defer to state discretion. For example, article 206 states that “where states have reasonable rounds for believing that substantial pollution will result from planned activities they must, in so far as is practicable, assess the potential effects of such activities.” This is a very high threshold, requiring “substantial pollution” before an assessment is required. It also defers heavily to state discretion by requiring only that an assessment be made of the impact of pollution so far as it is practicable to do so. However, it should be remembered that the field of environmental protection, even in national legislation, is frequently qualified by deference to economic development, and it is not at all surprising that an instrument that deals internationally with the oceans is also subject to such deference. Therefore, it is not the intention here to suggest that the UNCLOS is an iron cast document obliging all state parties to protect the marine environment at the expense of undertaking lucrative but polluting marine operations. However, that is not to say that the provisions of UNCLOS are not substantial and effective in increasing the degree to which environmental protection is respected while such inevitable activities are undertaken.
In conclusion therefore, this paper argues that UNCLOS is correctly described as a remarkable instrument because of the measures it takes to protect the marine environment. Given the importance of the oceans to the conditions of the planet, and also the difficulties that are frequently experienced when environmental objectives are balanced against economic development. However, it is concluded here that the UNCLOS meets this challenge as well as any international instrument could be expected to in the current political environment and should be applauded for achieving this important goal.
References
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