458
Hjalmar THIEL
The ratification of this Convention is open to any
state (Art. 18), but as of December 2002 it had been
ratified by only 78 states. According to the International
Maritime Organization (IMO), the Secretariat for the
LC, this international agreement developed into an
effective instrument for the protection of the marine environment (International Maritime Organization,
1991). Consultative Meetings of the Contracting Parties
receive multidisciplinary advice from the Group of
Experts on Scientific Aspects of Marine Environmental
Protection (GESAMP), a scientific consortium of
independent experts, from an intergovernmental panel
of Experts on Radioactive Waste Disposal at Sea, and
from a specially established Scientific Group as an
advisory body.
Thus, basically, the LC is well established, although
it would seem advantageous if the number of Contracting Parties would increase, and if they were induced to
reflect the LC in their national legislation and to reduce
the potential for uncontrolled dumping. However, the
LC and a Protocol adopted in 1996 but still not in force,
specifically exclude in Article III, 1c of the LC and
Article 1, 4.3 of the Protocol (protocol additions and
changes in brackets):
The disposal [or storage] of wastes or other matter directly
arising from, or related to exploration, exploitation and
associated off-shore processing of seabed mineral resources
is not covered by the provisions of this Convention [of this
Protocol]
(International Maritime Organization, 1997)
This is an adverse decision, dictated by commercial
self-interest.
The International Convention for the Prevention of
Pollution from Ships (MARPOL – MARine POLlution)
was adopted on 2 November 1973 and amended by
a Protocol in 1978. Several Amendments to the Convention and its Annexes have been made subsequently.
It has currently 102 members. MARPOL does not
exclude mining activities in the Area (that is, the
seafloor of the high seas outside the national Exclusive
Economic Zones); its objectives are restricted to
preventing pollution from ships. The various possible
impacts of mining are not covered by this Convention.
The United Nations Convention on the Law of the
Sea (UNCLOS) (United Nations, 1997) was adopted
on 10 December 1982 after ten years of negotiations,
and came into force on 16 November 1994 one
year after the sixtieth instrument of ratification was
deposited with the United Nations. As with the LC and
MARPOL, UNCLOS is global in scope. By December
2002 the European Union and 137 states had ratified
this convention. The main objectives are presented in
paragraph 4 of the Preamble, which states that the
Convention shall establish
a legal order for the seas and oceans which will facilitate
international communication, and will promote the peaceful
uses of the seas and oceans, the equitable and efficient
utilization of their resources, the conservation of their living
resources, and the study, protection and preservation of the
marine environment
Thus, already in this prominent position “study,
protection and preservation of the marine environment”
are emphasized, which is of significance in the context
of this Chapter. There are further important statements
in various parts of the Convention, such as Article 192
in Part XII:
States have the obligation to protect and preserve the
marine environment,
and in Article 193 of this part in relation to Exclusive
Economic Zones (EEZs):
States have the sovereign right to exploit their natural
resources persuant to their environmental policies and in
accordance with their duty to protect and preserve the marine
environment.
Provisions regarding “pollution by dumping” are set
out in Article 210 (Part XII). These require that
national laws, regulations and measures shall be no
less effective in preventing, reducing and controlling such
pollution than the global rules and standards.
It is generally understood that “global rules and
standards” means provisions set out in the 1972 LC.
This will be replaced by the 1996 Protocol to the
Convention, after its entry into force.
Part XI of UNCLOS is concerned with mining in
most deep-sea regions – that is, all parts outside the Exclusive Economic Zones. This part of the Convention
was very controversial during the negotiations and was
the reason for the long delay between the Convention’s
adoption and its entry into force. Problems arose
because of the very high returns expected from the
mining of polymetallic nodules, which were declared
the “common heritage of mankind”, and because
there was an attempt to translate principles of the
highly controversial New International Economic Order
into legally binding provisions related to deep-sea
mining. However, these controversies, solved by the
1994 Agreement relating to the Implementation of
Part XI, did not affect the environmental provisions laid
down in the various articles.
Hjalmar THIEL
The ratification of this Convention is open to any
state (Art. 18), but as of December 2002 it had been
ratified by only 78 states. According to the International
Maritime Organization (IMO), the Secretariat for the
LC, this international agreement developed into an
effective instrument for the protection of the marine environment (International Maritime Organization,
1991). Consultative Meetings of the Contracting Parties
receive multidisciplinary advice from the Group of
Experts on Scientific Aspects of Marine Environmental
Protection (GESAMP), a scientific consortium of
independent experts, from an intergovernmental panel
of Experts on Radioactive Waste Disposal at Sea, and
from a specially established Scientific Group as an
advisory body.
Thus, basically, the LC is well established, although
it would seem advantageous if the number of Contracting Parties would increase, and if they were induced to
reflect the LC in their national legislation and to reduce
the potential for uncontrolled dumping. However, the
LC and a Protocol adopted in 1996 but still not in force,
specifically exclude in Article III, 1c of the LC and
Article 1, 4.3 of the Protocol (protocol additions and
changes in brackets):
The disposal [or storage] of wastes or other matter directly
arising from, or related to exploration, exploitation and
associated off-shore processing of seabed mineral resources
is not covered by the provisions of this Convention [of this
Protocol]
(International Maritime Organization, 1997)
This is an adverse decision, dictated by commercial
self-interest.
The International Convention for the Prevention of
Pollution from Ships (MARPOL – MARine POLlution)
was adopted on 2 November 1973 and amended by
a Protocol in 1978. Several Amendments to the Convention and its Annexes have been made subsequently.
It has currently 102 members. MARPOL does not
exclude mining activities in the Area (that is, the
seafloor of the high seas outside the national Exclusive
Economic Zones); its objectives are restricted to
preventing pollution from ships. The various possible
impacts of mining are not covered by this Convention.
The United Nations Convention on the Law of the
Sea (UNCLOS) (United Nations, 1997) was adopted
on 10 December 1982 after ten years of negotiations,
and came into force on 16 November 1994 one
year after the sixtieth instrument of ratification was
deposited with the United Nations. As with the LC and
MARPOL, UNCLOS is global in scope. By December
2002 the European Union and 137 states had ratified
this convention. The main objectives are presented in
paragraph 4 of the Preamble, which states that the
Convention shall establish
a legal order for the seas and oceans which will facilitate
international communication, and will promote the peaceful
uses of the seas and oceans, the equitable and efficient
utilization of their resources, the conservation of their living
resources, and the study, protection and preservation of the
marine environment
Thus, already in this prominent position “study,
protection and preservation of the marine environment”
are emphasized, which is of significance in the context
of this Chapter. There are further important statements
in various parts of the Convention, such as Article 192
in Part XII:
States have the obligation to protect and preserve the
marine environment,
and in Article 193 of this part in relation to Exclusive
Economic Zones (EEZs):
States have the sovereign right to exploit their natural
resources persuant to their environmental policies and in
accordance with their duty to protect and preserve the marine
environment.
Provisions regarding “pollution by dumping” are set
out in Article 210 (Part XII). These require that
national laws, regulations and measures shall be no
less effective in preventing, reducing and controlling such
pollution than the global rules and standards.
It is generally understood that “global rules and
standards” means provisions set out in the 1972 LC.
This will be replaced by the 1996 Protocol to the
Convention, after its entry into force.
Part XI of UNCLOS is concerned with mining in
most deep-sea regions – that is, all parts outside the Exclusive Economic Zones. This part of the Convention
was very controversial during the negotiations and was
the reason for the long delay between the Convention’s
adoption and its entry into force. Problems arose
because of the very high returns expected from the
mining of polymetallic nodules, which were declared
the “common heritage of mankind”, and because
there was an attempt to translate principles of the
highly controversial New International Economic Order
into legally binding provisions related to deep-sea
mining. However, these controversies, solved by the
1994 Agreement relating to the Implementation of
Part XI, did not affect the environmental provisions laid
down in the various articles.