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INTERNATIONAL LAW OF THE SEA. general rule: States have the obligation to protect and preserve the marine environment. (Art.

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Prof. Dr. Nele Matz-Lück SoSe 2012 INTERNATIONAL LAW OF THE SEA V. Protection of the Marine Environment 1. General considerations Part XII of UNCLOS deals with protection and preservation of the marine
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Prof. Dr. Nele Matz-Lück SoSe 2012 INTERNATIONAL LAW OF THE SEA V. Protection of the Marine Environment 1. General considerations Part XII of UNCLOS deals with protection and preservation of the marine environment general rule: States have the obligation to protect and preserve the marine environment. (Art. 192 UNCLOS) o This general obligation is established as customary international law and supplemented by other duties under environmental law, e.g. prohibition of transboundary harm. Exploitation of natural resources should be in accordance with the duty to protect and preserve the marine environment. (Art. 193 UNCLOS) The prevention, reduction and control of marine pollution features as the means through which the goal of a protection and preservation should be reached. (Art. 194 UNCLOS) Additionally, States are not allowed to transfer pollution from one area to another or to transfer one type of pollution into another. (Art. 195 UNCLOS) 2. Cooperation Art. 197 UNCLOS covers cooperation on a global and regional basis Notably, developing States receive a preferential treatment. (Art. 202 & 203 UNCLOS) There exists a special role for the International Maritime Organization (IMO), which is largely responsible for the formulation of rules and standards as far as pollution from vessels is concerned (see also Art. 211 UNCLOS) on the regional basis the UNEP Regional Seas Programme is one example for an ambitious initiative to promote regional environmental protection of the seas o the programme was initiated by UNEP with the objective to provide for framework agreements and protocols covering not only the 1 prevention of pollution but also e.g. the conservation of biodiversity in preferably all regions of the world o the agreements covering almost all regions in the world adhere to a quite uniform pattern. o effectiveness depends upon successful negotiation of binding obligations but most of all of implementation and enforcement. Nevertheless, despite criticism concerning the effectiveness of many regional sea regimes the programme raised awareness and increased cooperation between States 3. Precautionary principle The precautionary principle or approach gained the significance in the protection and preservation of the marine environment in recent years The 1992 OSPAR Convention provides an exemplary definition. Its Contracting Parties shall apply the precautionary principle, by virtue of which preventive measures are to be taken when there are reasonable grounds for concern that substances or energy introduced, directly or indirectly, into the marine environment may bring about hazards to human health, harm living resources and marine ecosystems, damage amenities or interfere with other legitimate uses of the sea, even when there is no conclusive evidence of a causal relationship between the inputs and the effects. (Art. 2(2)(a)) Furthermore, there is an obligation laid down in some conventions to use the best available techniques and best environmental practice in order to protect and preserve the marine environment. 4. Environmental impact assessment UNCLOS and subsequent regional agreements and protocols laid down the need for a preliminary assessment of the impact on the marine environment of certain activities. UNCLOS prescribes that (w)hen States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments. Consequently, States are obliged to monitor the situation and potential impact on the environment. 2 5. Prevention of pollution through technical standards: e.g. phasing-out of single hull oil tankers by designation of special areas which are particularly vulnerable: o traffic separation schemes o compulsory piloting 6. Sources and pathways of pollution: international regulation Relevant sources of and pathways for marine pollution: o land-based sources o seabed-activities (e.g. oil and gas exploitation) o dumping o ships (normal operations and accidents) o through the air Marine pollution is defined 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 and reduction of amenities. (Art. 1(1)(4) UNCLOS) a) Land-based sources Art. 207 UNCLOS focuses on harmonisation of regulation for marine pollution from land-based sources. Cooperation on an international level is required. Special mentioning occurs in the provision of the minimisation of the release of toxic, harmful or noxious substances into the marine environment. Articles. 207 and 213 concerning land-based sources create a weaker framework than for other forms of marine pollution. Specific measures to be taken by States are listed in the voluntary Montreal Guidelines for the Protection of the Marine Environment against Pollution from Land-Based Sources. Being more elaborate than UNCLOS, the Montreal Guidelines comprise environmental impact assessment, monitoring, notification, information exchange and consultation, scientific and technical co-operation, assistance to developing countries and development of control strategies. The Montreal Guidelines emphasise the pollution of international watercourses as one if the major causes of marine pollution. 3 The 2001 Montreal Declaration on the Protection of the Marine Environment from Land-Based Activities calls for integrated management of coasts and oceans. Problems concerning the reduction of marine pollution by land-based sources relate to the fact that such a process has a direct impact on state sovereignty and economic activities. The 1974 Paris Convention for the Prevention of Marine Pollution from Land-based Sources forms an example of a convention that uses a black list and a grey list. The former sums up harmful substances for which State Parties should eliminate pollution. Pollution with substances on the latter list should be limited. There exist many regional approaches e.g. under the roof of the UNEP Regional Seas Programme The sources are diffuse and there exists lack of will to regulate agriculture to prevent eutrophication. b) Dumping Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter (1972 London Dumping Convention) and Protocol 1996) o The London Dumping Convention covers all forms dumping but excludes the disposal of waste as a result of normal operations. o The general rule in the Protocol of 1996 is the prohibition of dumping of all matters, if not explicitly allowed under Annex 1 to that Protocol. c) Vessel-based pollution State practice seems to have followed the obligation to establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels that is laid down in Art. 211(1) UNCLOS. Routeing systems for shipping are subsequently promoted as means to derive at the goal of decreasing pollution. This action should take place through the competent international organization (Art. 211(1) UNCLOS). This international organization is generally regarded to be the IMO. One option to decrease marine pollution by ships that UNCLOS offers is the designation of special areas. Reasons for higher protection in these areas can be oceanographic, ecological or due to particular shipping characteristics. In almost all cases, any disposal is prohibited in these areas. Requirements regarding these special areas shall not concern the 4 design, construction, manning or equipment of a vessel (Art. 211(6) UNCLOS). distinction between operational and accidental pollution o Regarding operational pollution, reduction and control are the aims. o Regarding accidental pollution, prevention is the aim. The conclusion of the International Convention for the Prevention of Oil Pollution from Ships 1973/1978 (MARPOL) was triggered by the Torrey Canyon disaster in which the vessel leaked its entire cargo of 120,00 tons of crude oil just outside the English coast. o The addition of the year 1978 in the title of MARPOL is a result of a Protocol from that year which incorporated its parent convention. o The different annexes to the Convention cover pollution by oil, chemicals, sewage, garbage and air pollution. o Waste dumping (other than garbage) is not covered by MARPOL. o Parties to MARPOL are required to act against violations in their jurisdiction and by ships flying their flag. Consequently, a State Party has to make sure that the penalties are paid. o For different categories of ships, there are requirements laid down concerning design and equipment. A system of certificates accompanies these requirements. o State Parties to MARPOL are urged to cooperate with each other and are entitled to inspect vessels in their ports to check for violations. Systems are developed to manage these inspections. o States should provide reception facilities for the disposal of oily waste and chemicals. o MARPOL contains very detailed provisions on reporting. There is a general duty to report and the Convention elaborates on how and when to make such a report and what should be in a report. MARPOL covers mainly the operational pollution; therefore the IMO adopted in 1990 the International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC Convention) to deal with accidental pollution. o Here, as with MARPOL, an oil pollution disaster was the immediate cause for the conclusion of this convention. In 1989, the 5 7. Enforcement oil tanker Exxon Valdez spilled huge quantities of oil into an ecologically fragile area in Alaska. o The OPRC Convention includes measures for coastal States to take in order prevent, mitigate or avoid serious oil pollution resulting from marine casualties. o Flag States are to require vessels flying their flag to have emergency plans on board in case a marine casualty occurs. When it comes to enforcement measures concerning the protection and preservation of the marine environment, UNCLOS differentiates between the different sources of marine pollution. Flag State jurisdiction in the case of pollution by vessels is complemented by port-state jurisdiction, e.g. inspection rights. Both UNCLOS (Articles 218 and 220) and MARPOL (Art. 6) provide guidance on this matter. Regional organisation of port State control takes place according to Memoranda of Understanding on Port State Control. The principle of no more favourable treatment for foreign ships prevents vessels flying the flag of States not party to relevant treaties from being in an advantageous position. In essence, this principle means that standards resulting from certain conventions can be enforced against ships flying the flag of non-parties, if they enter territorial waters. The resulting third-party effect is generally prohibited under the law of treaties. Measures to avoid pollution from marine casualties may be taken by States beyond the territorial sea in protection of their coastlines and related interests. (Art. 221 UNCLOS) 8. Liability Liability, e.g. for oil pollution is regulated in international treaties and considered one additional means to prevent pollution and provide compensation. (Art. 235 UNCLOS) State Parties to UNCLOS are urged to implement and further develop international legal frameworks concerning liability and responsibility concerning, for example, compulsory insurance and compensation funds. 6
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