The 1982 UN Law of the Sea Convention (LOSC) and the Protection and Preservation of the Marine Environment

The LOSC recognizes that uses and problems of marine space are closely interrelated and must be considered as a whole (the Preamble). The protection and preservation of the marine environment therefore constitutes an essential component and an integral part of the legal regime of the sea. The Convention, moreover, represents the first attempt to regulate all sources of marine pollution and different aspects of marine degradation within a single instrument. At the time of its adoption, the LOSC was considered as the “strongest comprehensive environmental treaty in existence or likely to emerge for quite some time”. Since its entry into force on 16 November 1994, the regime established by the Convention has gained nearly universal acceptance and its environmental provisions are widely considered to reflect customary law.
The environmental regime established by the Convention is based on the combination of the jurisdictional rules of the law of the sea with objectives, principles and approaches of international environmental law. The protection and preservation of the marine environment is specifically regulated in Part XII which is the result of this combination.
However, due to the comprehensive character of the LOSC and the inter-sectoral nature of marine issues, relevant provisions can be found in different parts of the Convention (e.g., Parts V and VII on conservation and management of living resources in the EEZ and high seas or Part XIII on marine scientific research). The LOSC has codified the customary principles discussed in the previous section and, in some cases, has further clarified their content. The jurisdictional rules and Part XII are discussed separately in the next paragraphs.

Jurisdictional Regime
The LOSC sets out the basic jurisdictional framework for conducting human activities at sea and the rights and duties of States in different maritime zones. In each zone, the Convention specifies the extent of the prescriptive jurisdiction, which is the capacity of States to adopt legislation, including environmental rules, and enforcement jurisdiction, which is the capacity of States to bring about compliance with these rules and to punish violations. Most of the jurisdictional provisions of the LOSC are declaratory of existing international law, while others (e.g., Exclusive Economic Zone (EEZ)) codify the latest developments in the law of the sea. This paragraph outlines the environmental powers of States in the different maritime zones, while specific rights and duties of flag States (i.e., “the State whose nationality a particular vessel has”), coastal States (i.e., “the State in one of whose maritime zones a particular vessel lies” or a particular activity is conducted) and port States (i.e., “the State in one of whose ports a particular vessel lies”) in each zone will be covered in more detail in the case-study chapters. Also the regime on international navigation (e.g., the right of innocent passage, transit passage and the freedom of navigation, inter alia) is discussed.
The LOSC places some limits on the capacity of coastal States to control the activities of foreign States in waters under their sovereignty and jurisdiction. The level of control varies according to the kind of activities and to the maritime zone concerned and generally decreases when proceeding towards the high seas. As one legal author pointed out, coastal (and port) State jurisdiction “always implies jurisdiction over foreign vessels. Jurisdiction over a State’s own vessel implies acting in the capacity as flag State”. Flag States have sovereignty over their own vessels wherever they are and may impose on them any kind of standard or practice they deem necessary to protect the marine environment.
Generally speaking, internal waters (i.e., all waters within the baselines, including ports), just like land territory, are under the full sovereignty of coastal (or port) States that have exclusive and unlimited control over the protection of their marine environment.
Sovereignty extends to the territorial sea up to 12 nautical miles (n.m.) from the baselines. In this zone, however, the level of coastal State control is limited by the right of innocent passage which pertains to all foreign vessels.
The LOSC has extended the powers of coastal States up to 200 n.m. within the EEZ. This zone does not exist automatically, but must be claimed. Within this new maritime zone, which was formerly subjected to the high seas regime, coastal States have, inter alia, sovereignty over the conservation and management of natural resources and jurisdiction for the protection and preservation of the marine environment. As will be discussed in further detail in the case-study chapters, in this area coastal States may take environmentally protective measures as long as they do not interfere with the traditional freedoms of other States, first and foremost the freedom of navigation. Flag states, however, must comply with coastal State environmental laws and regulations adopted in accordance with the LOSC.

In the continental shelf, which extends up to 200 n.m. from the baselines (in certain cases beyond that limit), coastal States have sovereign rights for the purpose of exploring and exploiting natural resources. the sovereign rights of exploitation seem to embrace the right to manage and conserve the natural resources of the continental shelf. In addition, the coastal States can take measures for the reduction and control of pollution from pipelines, but cannot impede the laying or maintenance of cables and pipelines by other States. Part XII, moreover, grants coastal States jurisdiction as far as dumping in the continental shelf and pollution from seabed activities are concerned.
The LOSC reconfirms that areas beyond national jurisdiction are subject to the traditional freedoms of the high seas (i.e., fishing, navigation, overflight, laying submarine cables and pipelines, building artificial islands and other facilities and conducting scientific research). In the high seas, the primary responsibility to protect and preserve the marine environment lies on flag States, which must ensure that vessels flying their flag comply with existing international rules and standards. Coastal States cannot take unilateral action in this area, but they have to cooperate in the multilateral development of protective measures within the competent international organizations.
Finally, the Area includes the seabed, the ocean floor and the subsoil thereof, beyond the limits of national jurisdiction and represents a common heritage of mankind. The regime governing the Area and the exploration and exploitation of its mineral resources is regulated in Part XI of the Convention. In respect of activities in the Area, as defined in Article 1.1(3) of the LOSC, it is for the International Sea Bed Authority (ISBA) to take all appropriate measures for the prevention, reduction and control of pollution, other hazards to the marine environment and interference with its ecological balance (Article 145 (a)), as well as the protection and conservation of the natural resources of the Area and the prevention of damage to the flora and fauna (b).
The LOSC jurisdictional provisions intended to attain a balance between the coastal State’s extended environmental rights and the interests of other States to use the oceans and exercise their traditional freedoms. As a matter of compromise, the LOSC gives preference to multilateral cooperation either among states directly or within the competent international organizations or general diplomatic conferences.

Part XII
The jurisdictional rules for the “protection and preservation” of the marine environment are further specified in Part XII of the LOSC. The LOSC does not clarify the difference between these two terms. It is largely accepted that “protection” refers to an existing or imminent danger, while “preservation” maintains the elements of sustainability and relates to the maintenance of the quality of the marine environment and the long-term policies to tackle marine environmental problems.
Part XII of the LOSC does not contain technical standards, but clarifies the extent of the rights and duties of States with regard to different sources of pollution and sets out the main principles that States have to follow in carrying out their duties. Generally speaking, the Convention places States under four main sets of obligations.
First, all States are under an unconditional duty to take measures to protect and preserve the marine environment (Article 192) and to exploit their marine resources in accordance with this duty (Article 193). These provisions, which are considered as “the capstone of the international environmental law of the sea”, transform the protection of the marine environment from a mere right into a positive legal duty, not confined to transboundary situations. The content of this general duty is specified further in Article 194. States are required to take all necessary measures to prevent, reduce and control marine pollution using the best practical means at their disposal and according to their capabilities. Six main sources of pollution are identified and addressed in further detail in several Articles of the Convention, namely: pollution from land-based and coastal activities (Article 207), from seabed mining within national jurisdiction (Article 208), from activities in the Area (Article 209), from ocean dumping (Article 210); from ships (Article 211) and from or through the atmosphere (Article 212). In addition, States have to take all necessary measures to protect and preserve “rare and fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life” (Article 194(5)).
Second, States have to cooperate on a global or regional basis, directly or through competent international organizations, in the multilateral development of international rules and standards, practices and procedures for the protection and preservation of the marine environment (e.g., Article 197). The Convention places strong emphasis on regional cooperation especially between States bordering enclosed or semi-enclosed seas (Article 123).
Third, in order to guarantee the maximum level of coherence and uniformity, the LOSC requires States to give effect to “generally accepted” and to enforce “generally applicable” international rules and standards established by the competent international organizations. The required level of compliance with the generally “accepted” or “applicable” rules and standards varies according to the types of activities and the maritime zone where they take place. States have to “take into account”, “conform to”, “give effect to” or “implement” international rules, which, depending on the circumstances, may represent minimum or maximum standards.
Generally, the LOSC provisions are particularly articulate with regard to activities taking place at sea, especially shipping, where there is a higher interference with the interests of other States. Conversely, the provisions are quite rudimentary with regard to land-based activities, where there is a stronger impact on national sovereignty and the primary responsibility is left to coastal (and land-locked) States. For the same reasons, the provisions on enforcement are also very weak, except for vessel-source pollution.
Fourth, States are subject to a series of procedural obligations concerning notification and information exchange (Article 198), the development of pollution contingency plans (Article 199), cooperation through scientific research (Articles 200-201) and technological assistance (Articles 202), monitoring (Article 204) and reporting (Article 205).
In addition, Article 206 requires States, “as far as practicable”, to conduct environmental impact assessments (EIAs) of projects and activities which are potentially dangerous for the marine environment, while Article 235 sets out a general duty to compensate pollution damage and to cooperate in the development of international rules on responsibility
and liability.
Even though Part XII is based on the 1972 Stockholm Declaration, it seems to formulate, at least at an embryonic stage and in very general terms, some of the emerging objectives, principles and approaches of ocean governance endorsed at UNCED (e.g., sustainable development, the need to take an integrated and precautionary approach and the polluter-pays principle).
the environmental regime established by the LOSC has recently been the object of some criticism. The “package deal” nature of the Convention, which was meant to be acceptable without reservations by the international community as a whole, has resulted in a high level of compromise between the coastal State’s environmental interests and the flag State’s traditional freedoms to use the sea and its resources. This compromise has often resulted in the lowest common denominator with a clear preference for utilization rather than preservation. In addition, the LOSC is based on a balance of interests as they stood three decades ago and does not reflect the modern requirements of environmental protection. In spite of this criticism, the idea of formally amending the Convention has never been supported.

Leave a Reply