to ocean management,
98 apart from bonding with another famous environmental law
principle, the “polluter-pays” one. The 1992 Rio Declaration defined the “polluterpays approach” as one in which the polluter should “bear the cost of pollution, with
due regard to the public interest and without distorting international trade and
investment”, thereby obliging the polluter to act quickly and on-site. The duty not
to transfer harm has also been praised for blocking “existing loopholes that enabled
states to get rid of pollution easily”,
99 perhaps an exaggeration of the practical
meaning of Art. 195 UNCLOS, but in no means a wrong assertion.
Then, UNCLOS imposes on coastal states the duty to monitor risks and effects of
all sources of pollution to the marine environment, as well as the duty to assess the
potential effects of activities which may cause substantial pollution of or significant
and harmful changes to the marine environment, pursuant to Arts. 204 and
206 UNCLOS. Both provisions prematurely consubstantiate the procedural obligation to conduct Environmental Impact Assessments (EIA), an international customary norm most cherished by environmentalists.
100 Yet, the use of vague adjectives
such as “substantial pollution” and “significant changes” indicate intention to raise
the threshold of application. Ultimately, such terms mirror the battle behind the
adoption of both provisions and the concerns by maritime powers as to the risks that
environmental considerations posed to traditional freedoms of the seas.
Thirdly, coastal states parties to the CBD are obliged to regulate, enforce and
monitor measures towards the preservation of marine biodiversity, pursuant to Arts.
5 to 8 CBD; to exercise due diligence upon implementation of environmental duties,
such as the establishment of contingency plans;
101 to implement the precautionary
principle (or, in the wording of the Seabed Disputes Chamber of the ITLOS, the
precautionary approach);
102 to take steps to protect vulnerable marine ecosystems,
103 or to “take measures to protect and preserve rare or fragile ecosystems as
well as the habitat of depleted, threatened or endangered species and other forms of
life”, so Art. 194 (5) UNCLOS.
Finally, and in line with the previous obligations, states are compelled by the duty
to promote the sustainable development of marine natural resources, an obligation
which may be extracted not only from UNCLOS provisions, but also from key
environmental treaties. Within the law of the sea, of particular pertinence are Art.
56 (1) (a), on the rights and duties of coastal states on the EEZ; Art. 61, on the
conservation of living resources of that zone; and Arts. 63 and 64, on the
98 Czybulka (2017), p. 1319, mn 17.
99 Id. 1319, mn 18.
100 Shortly after the UNCLOS adoption, the UNEP adopted a series of goals and principles
governing the conduction of environmental impact assessments. See UNEP, Environmental Guidelines and Principles (1987), p. 536.
101 IACHR, Advisory Opinion 23/17, 2018, para 174.
102 ITLOS, Responsibilities and obligations of States with respect to activities in the Area, para
125–135.
103 UNGA, Sustainable fisheries, A/RES/61/105, 6 March 2007, 4.
7.2 Coastal States’ Environmental Jurisdiction in the Law of the Sea: Seeing Beyond. . .
213
98 apart from bonding with another famous environmental law
principle, the “polluter-pays” one. The 1992 Rio Declaration defined the “polluterpays approach” as one in which the polluter should “bear the cost of pollution, with
due regard to the public interest and without distorting international trade and
investment”, thereby obliging the polluter to act quickly and on-site. The duty not
to transfer harm has also been praised for blocking “existing loopholes that enabled
states to get rid of pollution easily”,
99 perhaps an exaggeration of the practical
meaning of Art. 195 UNCLOS, but in no means a wrong assertion.
Then, UNCLOS imposes on coastal states the duty to monitor risks and effects of
all sources of pollution to the marine environment, as well as the duty to assess the
potential effects of activities which may cause substantial pollution of or significant
and harmful changes to the marine environment, pursuant to Arts. 204 and
206 UNCLOS. Both provisions prematurely consubstantiate the procedural obligation to conduct Environmental Impact Assessments (EIA), an international customary norm most cherished by environmentalists.
100 Yet, the use of vague adjectives
such as “substantial pollution” and “significant changes” indicate intention to raise
the threshold of application. Ultimately, such terms mirror the battle behind the
adoption of both provisions and the concerns by maritime powers as to the risks that
environmental considerations posed to traditional freedoms of the seas.
Thirdly, coastal states parties to the CBD are obliged to regulate, enforce and
monitor measures towards the preservation of marine biodiversity, pursuant to Arts.
5 to 8 CBD; to exercise due diligence upon implementation of environmental duties,
such as the establishment of contingency plans;
101 to implement the precautionary
principle (or, in the wording of the Seabed Disputes Chamber of the ITLOS, the
precautionary approach);
102 to take steps to protect vulnerable marine ecosystems,
103 or to “take measures to protect and preserve rare or fragile ecosystems as
well as the habitat of depleted, threatened or endangered species and other forms of
life”, so Art. 194 (5) UNCLOS.
Finally, and in line with the previous obligations, states are compelled by the duty
to promote the sustainable development of marine natural resources, an obligation
which may be extracted not only from UNCLOS provisions, but also from key
environmental treaties. Within the law of the sea, of particular pertinence are Art.
56 (1) (a), on the rights and duties of coastal states on the EEZ; Art. 61, on the
conservation of living resources of that zone; and Arts. 63 and 64, on the
98 Czybulka (2017), p. 1319, mn 17.
99 Id. 1319, mn 18.
100 Shortly after the UNCLOS adoption, the UNEP adopted a series of goals and principles
governing the conduction of environmental impact assessments. See UNEP, Environmental Guidelines and Principles (1987), p. 536.
101 IACHR, Advisory Opinion 23/17, 2018, para 174.
102 ITLOS, Responsibilities and obligations of States with respect to activities in the Area, para
125–135.
103 UNGA, Sustainable fisheries, A/RES/61/105, 6 March 2007, 4.
7.2 Coastal States’ Environmental Jurisdiction in the Law of the Sea: Seeing Beyond. . .
213