The 1982 Law of the Sea Convention: Fit for Purpose to Comprehensively Address Modern Day Marine Pollution? by Luke Gibbons Jr. [Page

At the time of drafting, the United Nations Convention on the Law of the Sea 1982 (hereinafter, UNCLOS) established for the first time a comprehensive framework for the protection of the marine environment. This was perceived as ground-breaking in contrast to previous attempts at codification in the Geneva Conventions of 1958 which contained only a handful of undeveloped provisions on environmental matters. This is attributable to the fact that UNCLOS was greatly informed by the increasing degree of environmental consciousness pertinent at the time subsequent to the UN Conference on the Human Environment at Stockholm in 1972. While it is true that UNCLOS may have been ground-breaking, in some respects UNCLOS has been outpaced by both practical developments in the severity of environmental challenges as evidenced by ever updated science and also normatively by modern environmental legal developments since its conclusion. Thus, this article will explore two things: firstly, the evident absence of modern environmental legal principles under the pollution provisions of UNCLOS. Secondly, the failure of UNCLOS to comprehensively address one of the most prevalent contemporary environmental issues facing the oceans of land based sources of marine pollution.

At the time of drafting, UNCLOS was innovative in that it was the first unilateral treaty to address marine pollution on a broad scale. While UNCLOS PART XII on Marine Pollution has far more provisions than any other marine environmental issue, some of the provisions under PART XII ought to be questioned in light of modern developments both with regards to actual environmental problems and contemporary environmental law.

No discussion of the comprehensiveness of the marine pollution provisions of UNCLOS would be complete without questioning the modernity of the definition of pollution in Article 1(1)(4). As an aside, from a textual perspective the fact the wording uses the gendered term “man” like many areas in UNCLOS is outmoded with modern non-gendered legal language and is reflective of 1980’s cognition. However, in contrast the definition arguably embodies the ‘living instrument’ thesis of UNCLOS and is thus malleable to modern day conceptions of marine pollution. This is posited as due to the definition’s “likely to” cause pollution language, it is contestably open to dynamic interpretation. Although the precautionary principle is not mentioned anywhere in UNCLOS as the first instruments referring to this principle did not appear until after UNCLOS, this “likely to” language could be construed as an embryonic pronouncement of the precautionary principle as bolstered by the mention of the principle in the South China Sea Arbitration when interpreting the Treaty.

The possibility that the “likely to” language may have some equivalence to the precautionary principle is exceptionally important in responding to questions posed on the comprehensiveness of UNCLOS today. This is argued as new forms of pollution have arisen not envisioned in 1982 such as sonar and noise pollution. The somewhat flexible nature of the definition has allowed a convincing argument to be mooted that noise is in-

cluded under the definition in the form of “energy”. Moreover, the “likely to cause” language being somewhat akin to the precautionary principle may allow for causation of the deleterious effects of these more novel forms of pollution to be established more readily. Thus, the definition in Article 1(1)(4) while outdated with no explicit mention of the precautionary principle, is arguably flexible enough to be regarded as still broadly comprehensive in response to contemporary issues.

In contrast to the definition, the iteration of Article 194 (1) that “States shall ….prevent, reduce and control pollution” is wholly a relic of the cognition surrounding maritime pollution in the 1980’s. It is distinctly absent of the now well versed “eliminate” language as outlined in the London Protocol for example. This encapsulates both the level of ambition, but also the level of urgency in the 1980’s with regards to the necessity to eliminate pollution from the oceans as compared to now.

Furthermore, the above phrase in Article 194 (1) is nowhere defined and the scope of the obligation is neither very clear having to resort to interpretations of the same phrase by the International Law Commission in its draft articles to derive a clear meaning. However, one must not forget that UNCLOS, by virtue of Article 197, is framework in character and thus does not profess to give minute detail on each provision. Nevertheless, this lack of clarity of a key obligation which is now also arguably outdated is not conducive to describing UNCLOS as comprehensive. However, this outdated critique of Article 194 (1) should also be balanced against the fact that the Article was rather foreboding in its early pronouncement of a form of the ‘common but differentiated responsibilities’ principle through the “in accordance with their capabilities” language. This language shows that while UNCLOS may have been out-paced by the “eliminate” development, it was very much at the forefront of enunciating a principle that has become a key tenant of international environmental law as outlined in the Paris Agreement for instance.

Moreover, the ‘polluter pays principle’ is unsurprisingly not mentioned in UNCLOS, as such only garnered support in 1992 and this may again be mooted as an example where legal developments invite the critique that UNCLOS is no longer comprehensive. In contrast, it ought to be noted that Article 206 outlines the principle of an environmental impact assessment (hereinafter, EIA) in all but name. While this EIA formulation is more limited than subsequent developments in that the assessment is only required “as far as practicable.” It is posited that this EIA conceptualization is actually comprehensive in that it also applies to activities which do not have a transboundary impact. This sole transboundary focus is often mooted as a gap in modern international environmental law. Nevertheless, the lack of explicit content of the EIA provided in Article 206 has led to States relying on more detailed instruments as to what is required as occurred in the Nord Stream Pipeline Project case in which the Espoo Convention was relied on instead. However, it would be naïve to moot this as a critique of the comprehensiveness of UNCLOS in contrast to how environmental laws have developed as that would arguably be confusing the framework character of the UNCLOS and comprehensiveness.

In an ideal world it may be advantageous to have an UNCLOS which outlines everything in minute detail. Not only would this get stuck in time more so than the current formulation as technology and law develops, but furthermore garnering States’ consensus to such a formulation would be an insurmountable task. In this sense the framework elements of UNCLOS are akin to the intentional ambiguities in the Paris Agreement for example.

As noted, the absence of modern environmental principles can lead to arguments for and against UNCLOS being regarded as contemporarily comprehensive. However, one area where UNCLOS is wholly outdated is that of the regulation of land based sources of pollution. If one compares Article 207 (1) on the obligation of states to “take into account internationally agreed rules…” in relation to land-based sources, with that of Article 210 (6) “no less effective” on dumping and Article 211 (2) of “at least the same effect” on pollution from vessels, it is immediately apparent that State’s obligations to regulate land based sources are comparatively substantively weaker.

This represents a perplexing inverse relationship between the actual percentage contribution to marine pollution as between vessels and land based sources. Putting sovereignty concerns aside, this weak obligation in relation to land based sources compared to the much stronger obligation with regards to vessels is again a symptom of the cognition of the 1980’s in which provocative vessel based pollution more readily captured public discourse than the more pervasive land based pollution. As there is a disjunct between the reality of pollution and the legal standard this questions the comprehensiveness of UNCLOS, in that modern discourse is much more cognisant of the reality of land based sources. This can be conceptualized as not a modern day illustration of the classic ‘land dominates the sea’ principle, but an instance of the land dominating the scope and comprehensiveness of the law of the sea.

There are elements of UNCLOS which are outdated and thus not comprehensive as a result of the transition of time from the 1980s to the present day.

Nevertheless, there are elements in relation to land based sources of marine pollution and modern day environmental principles which should be addressed.