national binding and non-binding instruments, such as recommendations, guidelines, codes of conduct, among others.
33
When enacting legislation, states have a limited margin of discretion. If, on the
one hand, they are given a certain degree of flexibility, which can be extracted from
the phrase “as may be necessary”, on the other, they are bound by minimum
standards, meaning that domestic instruments must be equally or more effective
than international practices and recommendations concerning pollution from seabed
activities.
34 Such minimum standards may be found in international instruments
other than UNCLOS, to which states are bound even if they did not consent to,
unless they actively dissent. That argument is rightfully advanced by Frank Wacht,
to whom states parties to UNCLOS can be said to have voluntarily agreed with
UNCLOS provisions relating to other treaties, pursuant to Art. 311 of the Convention.
35 It is the case, for instance, of the CBD and the 1972 London Convention,
among others.
36 That possibility does not violate the pacta tertiis rule of international law, given states’ voluntary adherence to UNCLOS. The minimum standards
imposed by this “no-less-effective” clause of Art. 208 (3), are to be established on a
global and regional level through cooperation between states and international
organizations.
Noteworthy is also that the “no-less-effective” rule is to be read in combination
with another duty, enshrined in Art. 208 (4), which calls states to endeavor to
harmonize domestic environmental policies with neighboring countries, in order to
generate a coherent regional body of regulations on pollution from seabed activities.
In international legal language, “endeavor” clearly weakens the duty to harmonize
policies at the appropriate regional level, rendering it no more than a duty to use best
efforts to achieve a goal. Once again, the wording of the Convention is vague and left
open for interpretation, since no specific set of requirements is provided.
In Brazil, the Constitutional Complementary Act no. 97/1999, which provides for
the general norms on the organization, preparation and employment of the Armed
Forces, specifies the duties of the Brazilian Navy. Art. 17 (4) of that Act specifies the
Navy attribution to implement and enforce compliance with laws and regulations, at
sea and inland waters, in coordination with other executive, federal or state agencies,
when necessary. Besides, the “Oil Act”, no. 9.966/2000, governs the issue. As far as
33 This obligation falls upon all states, including land-locked ones, given that they are also granted
freedoms of the high seas prescribed by Art. 87 UNCLOS.
34 Art. 208, paragraph 3 UNCLOS.
35 See Wacht (2017), p. 1397, mn 12. Such a view can also be based by official interpretations, such
as the authoritative United States Restatement of Foreign Relations Law, according to which “some
multilateral agreements may come to be law for non-parties that do not actively dissent. That may be
the effect where a multilateral agreement is designed for adherence by states generally, is widely
accepted, and is not rejected by a significant number of important states”. See also United States,
Restatement of the Law, Third, Foreign Relations Law of the United States, American Law Institute,
1987, Comment “i”, 5.
36 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1046
UNTS 120, 1972. The London Convention was updated by the 1996 Protocol, 36 ILM 1, 1997.
8.1 Environmental Jurisdiction to Prescribe
233
33
When enacting legislation, states have a limited margin of discretion. If, on the
one hand, they are given a certain degree of flexibility, which can be extracted from
the phrase “as may be necessary”, on the other, they are bound by minimum
standards, meaning that domestic instruments must be equally or more effective
than international practices and recommendations concerning pollution from seabed
activities.
34 Such minimum standards may be found in international instruments
other than UNCLOS, to which states are bound even if they did not consent to,
unless they actively dissent. That argument is rightfully advanced by Frank Wacht,
to whom states parties to UNCLOS can be said to have voluntarily agreed with
UNCLOS provisions relating to other treaties, pursuant to Art. 311 of the Convention.
35 It is the case, for instance, of the CBD and the 1972 London Convention,
among others.
36 That possibility does not violate the pacta tertiis rule of international law, given states’ voluntary adherence to UNCLOS. The minimum standards
imposed by this “no-less-effective” clause of Art. 208 (3), are to be established on a
global and regional level through cooperation between states and international
organizations.
Noteworthy is also that the “no-less-effective” rule is to be read in combination
with another duty, enshrined in Art. 208 (4), which calls states to endeavor to
harmonize domestic environmental policies with neighboring countries, in order to
generate a coherent regional body of regulations on pollution from seabed activities.
In international legal language, “endeavor” clearly weakens the duty to harmonize
policies at the appropriate regional level, rendering it no more than a duty to use best
efforts to achieve a goal. Once again, the wording of the Convention is vague and left
open for interpretation, since no specific set of requirements is provided.
In Brazil, the Constitutional Complementary Act no. 97/1999, which provides for
the general norms on the organization, preparation and employment of the Armed
Forces, specifies the duties of the Brazilian Navy. Art. 17 (4) of that Act specifies the
Navy attribution to implement and enforce compliance with laws and regulations, at
sea and inland waters, in coordination with other executive, federal or state agencies,
when necessary. Besides, the “Oil Act”, no. 9.966/2000, governs the issue. As far as
33 This obligation falls upon all states, including land-locked ones, given that they are also granted
freedoms of the high seas prescribed by Art. 87 UNCLOS.
34 Art. 208, paragraph 3 UNCLOS.
35 See Wacht (2017), p. 1397, mn 12. Such a view can also be based by official interpretations, such
as the authoritative United States Restatement of Foreign Relations Law, according to which “some
multilateral agreements may come to be law for non-parties that do not actively dissent. That may be
the effect where a multilateral agreement is designed for adherence by states generally, is widely
accepted, and is not rejected by a significant number of important states”. See also United States,
Restatement of the Law, Third, Foreign Relations Law of the United States, American Law Institute,
1987, Comment “i”, 5.
36 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1046
UNTS 120, 1972. The London Convention was updated by the 1996 Protocol, 36 ILM 1, 1997.
8.1 Environmental Jurisdiction to Prescribe
233