7.1.1 Historical Track of the International Obligation
to Protect and Preserve the Marine Environment
UNCLOS is a powerful source of substantive rules on the protection of the marine
environment. With the adoption of the Convention, the obligation to protect and
preserve the marine environment was, for the first time in history, inserted into a
multilateral treaty with binding force.
32 If, in its initial provisions, UNCLOS prioritizes self-interests of the states, subsequently the Convention codifies diffuse and
collective interests, as is the case of environmental protection, regulation of marine
scientific research, development and transfer of marine technology, and settlement of
disputes. Even though the focus of negotiations was not on the diffuse and environmental aspects, but on the allocation of competences on well-defined maritime
spaces, in order to ensure the peaceful use of the oceans, UNCLOS has undoubtedly
innovated by codifying erga omnes interests from Part XII onwards.
33
In this sense, it would be possible to refer to insertion of a new category of “transindividual interests” of a diffuse and collective nature into the Convention, with a
particular reference to environment-related concerns. If, as some scholars claim,
UNCLOS has assumed the core anxieties which inspired the 1972 Stockholm
Declaration,
34 then a core part of the Convention must have been dedicated to
trans-individual environmental interests. Such interests belong to no isolated person,
but refer to an abstract and indiscriminate chain of peoples—any injury is against the
whole community. In short, those are interests to an indivisible good.
35 In this sense,
it is pertinent to apply the Convention to the environmental aspects of the seas,
whenever legal provisions allow for that.
In so doing, negotiating parties had to strike balances and compromises, in order
to fit the nascent topic of marine environmental protection into the new treaty
without jeopardizing traditional freedoms of the seas. As noted by Alexander
Yankov, Chairman of the Third Negotiating Committee of the Convention,
[e]fforts had been made to keep a viable balance between ecological considerations and the
legitimate demands of expanding international navigation, between national legislation and
enforcement measures on the one hand, and the international rules, standards and regulations
32 By marine environment, it is understood not only the physical medium where underwater life
thrives, but also life itself.
33 The expression “erga omnes interests”, to describe the object of UNCLOS’ Parts XII, is employed
by Beirão (2014), p. 132.
34 This view is advanced by Maria Helena Rolim, to whom UNCLOS implicitly confirmed the 1972
Stockholm Declaration by codifying several of the environmental legal principles of the Declaration, amongst which: (i) the prohibition of cross-border pollution and the duty of prior notification
and exchange of information; (ii) international cooperation; (iii) technical assistance, via training of
personnel and granting assistance to developing states; and the international responsibility of the
state, as in UNCLOS Art. 235. See Rolim (2014), p. 349.
35 Id. 364.
196
7 Legal Basis of Coastal States’ Environmental Jurisdiction on the...
to Protect and Preserve the Marine Environment
UNCLOS is a powerful source of substantive rules on the protection of the marine
environment. With the adoption of the Convention, the obligation to protect and
preserve the marine environment was, for the first time in history, inserted into a
multilateral treaty with binding force.
32 If, in its initial provisions, UNCLOS prioritizes self-interests of the states, subsequently the Convention codifies diffuse and
collective interests, as is the case of environmental protection, regulation of marine
scientific research, development and transfer of marine technology, and settlement of
disputes. Even though the focus of negotiations was not on the diffuse and environmental aspects, but on the allocation of competences on well-defined maritime
spaces, in order to ensure the peaceful use of the oceans, UNCLOS has undoubtedly
innovated by codifying erga omnes interests from Part XII onwards.
33
In this sense, it would be possible to refer to insertion of a new category of “transindividual interests” of a diffuse and collective nature into the Convention, with a
particular reference to environment-related concerns. If, as some scholars claim,
UNCLOS has assumed the core anxieties which inspired the 1972 Stockholm
Declaration,
34 then a core part of the Convention must have been dedicated to
trans-individual environmental interests. Such interests belong to no isolated person,
but refer to an abstract and indiscriminate chain of peoples—any injury is against the
whole community. In short, those are interests to an indivisible good.
35 In this sense,
it is pertinent to apply the Convention to the environmental aspects of the seas,
whenever legal provisions allow for that.
In so doing, negotiating parties had to strike balances and compromises, in order
to fit the nascent topic of marine environmental protection into the new treaty
without jeopardizing traditional freedoms of the seas. As noted by Alexander
Yankov, Chairman of the Third Negotiating Committee of the Convention,
[e]fforts had been made to keep a viable balance between ecological considerations and the
legitimate demands of expanding international navigation, between national legislation and
enforcement measures on the one hand, and the international rules, standards and regulations
32 By marine environment, it is understood not only the physical medium where underwater life
thrives, but also life itself.
33 The expression “erga omnes interests”, to describe the object of UNCLOS’ Parts XII, is employed
by Beirão (2014), p. 132.
34 This view is advanced by Maria Helena Rolim, to whom UNCLOS implicitly confirmed the 1972
Stockholm Declaration by codifying several of the environmental legal principles of the Declaration, amongst which: (i) the prohibition of cross-border pollution and the duty of prior notification
and exchange of information; (ii) international cooperation; (iii) technical assistance, via training of
personnel and granting assistance to developing states; and the international responsibility of the
state, as in UNCLOS Art. 235. See Rolim (2014), p. 349.
35 Id. 364.
196
7 Legal Basis of Coastal States’ Environmental Jurisdiction on the...