on the other, between the jurisdiction of the coastal State and that of the flag State, between
the interests of developed maritime powers and those of developing countries.
36
In a sense, UNCLOS can be seen as a set of legal norms that raise the health of the
marine environment to the level of a legal good, therefore, worth tutelage. The
Convention is the first multilateral binding instrument to legislate on general marine
environmental protection, instead of on the conservation of particular species. In
fact, several of the Convention’ provisions fit into each of law’s functions to protect
the environment, as depicted supra. There are distributive provisions, which determine who has the right to exploit with exclusivity natural marine resources, to what
extent, and where—articles on the rights and competences in each maritime space,
such as Art. 56 on the EEZ or Art. 77 on the continental shelf; conservatory
provisions, such as the ones obliging the protection of the marine environment
from vessel-source pollution—vide Art. 194 (1); and proscriptive provisions, such
as the determination of a total allowable catch in relation to fisheries within national
jurisdiction—Art. 61 (1), or the obligation to promote the “optimum utilization” of
the living resources of the EEZ without prejudice to the total allowable catch—Art.
62 (1).
Nevertheless, the Convention has done so in a fragmented and incomplete way.
37
Fragmented, because it treated conservation and management of living resources
differently than prevention, reduction and control of marine pollution, in separated
sections and subject to different rules. Incomplete, because it did not elaborate on
delicate issues such as bioprospecting, the material extent of coastal state’s environmental powers on the outer continental shelf, and the exploration and exploitation of
living resources in areas beyond national jurisdiction. Those are matters which still
provoke disagreement among states on the international arena.
Besides, the international obligation to protect and preserve the marine environment was still at an inchoate stage during UNCLOS’ negotiations. In the Convention, such obligation is incipient and rather general, as noticed from Art.
192, according to which “States have the obligation to protect and preserve the
marine environment”; or Art. 194 (1), in which “States shall take all measures
necessary to prevent, reduce and control pollution of the marine environment”.
After all, the Convention is a product of its time, and it is no environmental treaty
in essence. It is, thus, illogical to expect a pact negotiated during the 1970s and
aiming at regulating the uses of the oceans to assume a prevalent ecological stand.
Quite to the contrary, UNCLOS embraces an exploitation-oriented approach to
marine living resources, however tempered by environmental considerations, particularly concerning marine pollution.
38
36 See Bulgaria, A/CONF.62/SR.99, 99th Plenary meeting, para 4 and 5.
37 Sands and Peel (2012), p. 344.
38 Concerning UNCLOS’ environmental facet, Robin Churchill engages in the interesting hypothetical exercise of comparing UNCLOS with an “ideal contemporary marine environmental
treaty”. At the end of the comparison, the scholar finds the Convention’s environmental provisions
to be encrusted with normative deficiencies, namely: lack of substantive norms of its own (as in
7.1 The Role of Law in Protecting Nature: Birth of an Obligation to Protect and. . .
197
the interests of developed maritime powers and those of developing countries.
36
In a sense, UNCLOS can be seen as a set of legal norms that raise the health of the
marine environment to the level of a legal good, therefore, worth tutelage. The
Convention is the first multilateral binding instrument to legislate on general marine
environmental protection, instead of on the conservation of particular species. In
fact, several of the Convention’ provisions fit into each of law’s functions to protect
the environment, as depicted supra. There are distributive provisions, which determine who has the right to exploit with exclusivity natural marine resources, to what
extent, and where—articles on the rights and competences in each maritime space,
such as Art. 56 on the EEZ or Art. 77 on the continental shelf; conservatory
provisions, such as the ones obliging the protection of the marine environment
from vessel-source pollution—vide Art. 194 (1); and proscriptive provisions, such
as the determination of a total allowable catch in relation to fisheries within national
jurisdiction—Art. 61 (1), or the obligation to promote the “optimum utilization” of
the living resources of the EEZ without prejudice to the total allowable catch—Art.
62 (1).
Nevertheless, the Convention has done so in a fragmented and incomplete way.
37
Fragmented, because it treated conservation and management of living resources
differently than prevention, reduction and control of marine pollution, in separated
sections and subject to different rules. Incomplete, because it did not elaborate on
delicate issues such as bioprospecting, the material extent of coastal state’s environmental powers on the outer continental shelf, and the exploration and exploitation of
living resources in areas beyond national jurisdiction. Those are matters which still
provoke disagreement among states on the international arena.
Besides, the international obligation to protect and preserve the marine environment was still at an inchoate stage during UNCLOS’ negotiations. In the Convention, such obligation is incipient and rather general, as noticed from Art.
192, according to which “States have the obligation to protect and preserve the
marine environment”; or Art. 194 (1), in which “States shall take all measures
necessary to prevent, reduce and control pollution of the marine environment”.
After all, the Convention is a product of its time, and it is no environmental treaty
in essence. It is, thus, illogical to expect a pact negotiated during the 1970s and
aiming at regulating the uses of the oceans to assume a prevalent ecological stand.
Quite to the contrary, UNCLOS embraces an exploitation-oriented approach to
marine living resources, however tempered by environmental considerations, particularly concerning marine pollution.
38
36 See Bulgaria, A/CONF.62/SR.99, 99th Plenary meeting, para 4 and 5.
37 Sands and Peel (2012), p. 344.
38 Concerning UNCLOS’ environmental facet, Robin Churchill engages in the interesting hypothetical exercise of comparing UNCLOS with an “ideal contemporary marine environmental
treaty”. At the end of the comparison, the scholar finds the Convention’s environmental provisions
to be encrusted with normative deficiencies, namely: lack of substantive norms of its own (as in
7.1 The Role of Law in Protecting Nature: Birth of an Obligation to Protect and. . .
197