As Revised May 27, 2003 for Publication In

As Revised May 27, 2003 for publication in

Oceans Management in the 21st Century: Institutional Frameworks and Responses

(Donald R. Rothwell and Alex G. Oude Elferink (eds) The Hague: Kluwer Law International)

Giving Teeth to the Environmental Obligations

in the Law of the Sea Convention

Jon M. Van Dyke

William S. Richardson School of Law

University of Hawaii at Manoa

Honolulu, Hawaii, USA

The Law of the Sea Convention

Part XII of the 1982 Law of the Sea Convention[1] – “Protection and Preservation of the Marine Environment” -- has transformed discourse about environmental issues in the oceans. The simple and elegant phrase in Article 192 that “States have the obligation to protect and preserve the marine environment” was such a dramatic breakthrough when it was added to the draft text that some delegates wanted to dance in the streets surrounding the negotiating hall. This principle is now obligatory even for countries that have not ratified the Convention, because it has become a binding norm of customary international law.

Article 194(1) is quite clear that countries must do everything possible to prevent, reduce and control pollution of the marine environment from any source. States are required, therefore, to take preventive measures based on existing knowledge to avoid pollution, rather than to take remedial measures once it has occurred, and to apply a precautionary approach when scientific certainty about the harmful effects is not (yet) available.[2] Article 194(5) makes it clear that these duties, in particular, require countries to adopt measures to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life. Article 196 requires countries to take all measures necessary to prevent, reduce and control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control. Articles 204-06 require the preparation and dissemination of environmental impact assessments.

These framework provisions set high standards for nations and other users of the oceans and its resources, but they leave many details unresolved. In the two decades since the Convention was signed in Montego Bay, new treaties have been drafted, new institutions have been created, and international, regional, and national courts have rendered decisions that give specific meaning to these broad principles. This chapter surveys some of these developments to illustrate the ways in which emerging principles of international environmental law are being applied to oceans and coasts.

The International Tribunal for the Law of the Sea.

When the Law of the Sea Convention came into force in 1994, 21 distinguished experts were elected to be judges on the International Tribunal for the Law of the Sea (ITLOS). In its first case, The M/V Saiga,[3] the Tribunal was presented with a dispute that could have been conceived as having an environmental dimension, but instead was argued more narrowly by the coastal state (Guinea) based on its claim to be able to exercise customs and fiscal authority over vessels selling and transferring fuel to fishing boats in the exclusive economic zone (EEZ). Refueling in a resource rich area presents environmental risks, and Guinea might have contended that its power to regulate refueling was linked to its authority to regulate fishing in the EEZ. But Guinea argued only that it was being deprived of tax revenue by not being able to extend its customs laws to the foreign-flag vessel.

Voting 18-2 on most questions (with Judges Warioba and Ndiaye dissenting), the Tribunal issued a strong opinion in favor of the flag state (Saint Vincent and the Grenadines), ruling that Guinea could not apply custom laws to sales made in its EEZ except “in respect of artificial islands, installations and structures.”[4] It also rejected the Guinean claim that its “public interest” or “self-protection” or “state of necessity” justified extending its jurisdiction over an area not authorized by the Convention.[5]

The decision confirms and protects maritime freedoms in the exclusive economic zone, but because Guinea did not claim that its actions were taken to protect its marine resources and coastal environment, the Tribunal did not address the important issue of how to balance navigational freedoms with resource and environmental protection. If that issue had been presented to it, the Tribunal might have concluded that because the coastal state could regulate the harvesting of resources in this zone, it could also regulate the refueling of fishing vessels engaged in the harvesting. It may be possible for coastal states to regulate this activity in the future by conditioning fishing licenses on agreements to buy fuel from within the coastal country or to pay tax on the fuel.

In the Southern Bluefin Tuna Case,[6] the Tribunal used its power under Article 290 of the Convention to prescribe “provisional measures” pending final outcome, whenever “appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment...” (emphasis added). The Tribunal ordered Japan to “refrain from conducting an experimental fishing programme involving the taking of a catch of southern bluefin tuna,” unless the catch from such a program is deducted from Japan’s annual national allocation as agreed upon with Australia and New Zealand. But the second stage of this case was most unfortunate, because an ad hoc arbitral tribunal established under Annex VII of the Convention declared that both it and the Tribunal lacked jurisdiction over the case because of conflicting dispute-resolution provisions in the relevant treaties.

Despite the inconclusive ending of this case, the provisional measures issued by ITLOS may still be important for future disputes. The Tribunal tried to freeze the status quo, and ordered Japan to stop its unilateral “experimental fishing” in order to give the blue fin tuna a chance to recover while the countries developed new management arrangements. In its Order, the Tribunal used the following language:

[P]arties should in the circumstances act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the stock of southern bluefin tuna...

...[Although there is] scientific uncertainty regarding measures to be taken to conserve the stock of southern bluefin tuna and....although the Tribunal cannot conclusively assess the scientific evidence presented by the parties, it finds that measures should be taken as a matter of urgency to preserve the rights of the parties and to avert further deterioration.[7]

Judge Alexander Yankov, referring to this language, wrote later that “there are some statements of the Tribunal in the Order which appear to reveal its stand in favor of essential elements of the precautionary approach.”[8] Judge Tullio Treves added in his concurring opinion that, although he “understood the reluctance of the Tribunal in taking a position as to whether the precautionary approach is a binding principle of customary international law,” nonetheless “a precautionary approach seems to me inherent in the very notions of provisional measures.”[9] “These provisional measures remained in place for one year, yielding great benefits in environmental protection.”[10]

In the MOX Plant Case,[11] the Tribunal issued another important provisional-measures ruling, stating that the duty to cooperate required Ireland and the United Kingdom to exchange information concerning the risks created by the expansion of the Sellafield nuclear facility in the United Kingdom, to monitor the effects of this plant on the marine environment in the Irish Sea, and to work together to reduce these risks. This case is now being considered by an arbitral panel.

In December 2002, the Tribunal addressed in The Volga Case[12] the nature of the bond that can be required by a coastal country before it is obliged to release a vessel accused of fishing illegally in the coastal state’s EEZ. The Tribunal said that the bond could be set by Australia at the full value of the vessel, fuel, lubricants, and fishing equipment, which came to AU$1,920,000.[13] But it rejected Australia’s effort to charge another AU$1,000,000 as a “good behavior bond” to ensure that the vessel carried a fully operational vessel monitoring system (VMS) and observed the conservation measures of the Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR).[14] The Tribunal said that it “understands the international concerns about illegal, unregulated and unreported fishing and appreciates the objectives behind the measures taken by States, including the States Parties to CCAMLR, to deal with the problem.”[15] But it nonetheless gave a narrow textual ruling, saying that the “bond or other security” allowed in Article 73(2) must be reasonable in light of its purpose, which “is to provide the flag State with a mechanism for obtaining the prompt release of a vessel and crew...by posting a security of a financial nature whose reasonableness can be assessed in financial terms.”[16]

These early cases demonstrate that the Tribunal recognizes the challenges presented by overfishing and marine pollution. And the orders issued in the Southern Bluefin Tuna and the MOX Plant Cases indicate that the Tribunal is prepared to issue preliminary measures to protect the marine environment from dangers.

International Court of Justice.

The International Court of Justice (ICJ) is still the most important international tribunal, and its recent rulings reinforce the obligation to protect the marine environment. In the 1997 Gabcikovo-Nagymaros Case, for instance, the ICJ acknowledged the importance of precaution.[17] Hungary had suspended in 1989, and then in 1992 had unilaterally terminated, a 1977 treaty governing a hydroelectric dam and navigation improvement project on the Danube River that had been negotiated by Hungary and Czechoslovakia during the Soviet dominance of Eastern Europe. After it broke away from the Soviet Union in the late 1980s, Hungary argued that the treaty was a “mistake,” and that it was entitled to terminate the treaty based on an “ecological state of necessity.” Hungary pointed to ecological risks that included “the replacement of Danube groundwater flow with stagnant upstream reservoir water, the silting of the Danube, eutrophication, and the threat to aquatic habitats from peaking power releases”[18] and argued that the precautionary principle imposed “an erga omnes obligation of prevention of damage...” Hungary thus invoked Article 33 of the International Law Commission Draft Articles on the International Responsibility of States, which permits countries to avoid an international duty if necessary to “safeguard an essential interest of the State against a grave and imminent peril.”

The ICJ agreed that Article 33 incorporated concepts of precaution, but interpreted this doctrine narrowly, saying that a country could invoke the principle as a basis for terminating a treaty only if it could demonstrate “by credible scientific evidence that a real risk will materialize in the near future and is thus more than a possibility.”[19] The Court then ruled that Hungary’s evidence of potential environmental damage had failed to meet this standard and thus that Hungary remained bound by the treaty, pursuant to the principle of pacta sunt servanda, requiring countries to adhere to their treaty commitments. But the Court also stated that “new knowledge of ecological risk does impose a duty on parties to a complex river basin development treaty to take the information into consideration in the ongoing implementation of the treaty and management of the river.”[20] The Court thus gave Hungary a partial victory by ordering the two countries “to undertake good faith negotiations consistent with both international environmental norms such as sustainable development and the law of international water courses to come up with a new management scheme”[21] for the dam project.

Judge Weeramantry wrote a separate opinion emphasizing that the interrelated principles of environmentally sustainable development and cautionary environmental assessment are erga omnes rules of customary international law. This opinion says that the precautionary principle includes a requirement to prepare environmental assessments and to monitor all large water development projects: “EIA, being a specific application of the larger principle of caution, embodies the larger obligation of continuing watchfulness and anticipation.”[22]

In the earlier 1995 Nuclear Tests Case,[23] although the Court failed to reach the merits, two judges mentioned the precautionary principle as an emerging feature of international environmental law.[24] One of these judges also referred to the precautionary principle in the 1996 Nuclear Weapons Case.[25]

Treaties Addressing Overfishing

The 1995 Straddling and Migratory Fish Stocks Agreement[26]

Articles 63, 64, 118, and 119 of the Law of the Sea Convention, require countries to cooperate to conserve and manage fish species, in areas of overlapping or shared jurisdiction, and several significant treaties have been adopted pursuant to that obligation. The central one is the 1995 Agreement establishing the framework for dealing with straddling and migratory stocks.[27] Designed to stop the dramatic overfishing that has decimated the fish stocks in many parts of the world,[28] it introduces a number of new strategies that will require the fishing industry to change its mode of operation in significant ways.

Prominent among these new requirements is precaution. Article 5(c) lists the “precautionary approach” among the principles that govern conservation and management of shared fish stocks, and Article 6 elaborates on this requirement in some detail, focusing on data collection and monitoring. In Annex II, the Agreement identifies a specific procedure that must be used to control exploitation and monitor the effects of the management plan. For each harvested species, a “conservation” or “limit” reference point as well as a “management” or “target” reference must be determined. If stock populations go below the agreed-upon conservation/limit reference point, then “conservation and management action should be initiated to facilitate stock recovery” (Annex II(5)). Overfished stocks must be managed to ensure that they can recover to the level at which they can produce the maximum sustainable yield (Annex II(7)). The continued reference to the maximum-sustainable-yield formula indicates that the Agreement has not broken completely free from the approaches that led to the rapid decline in the world’s fisheries,[29] but the hope is that the conservation/limit reference points will lead to early warnings of trouble that will be taken more seriously.

The Honolulu Treaty

Formally called The Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean[30] and signed in Honolulu in September 2000, this treaty is breathtakingly innovative in a number of significant respects. It is huge in its geographical scope, covering much of the vast Pacific Ocean and governing territorial seas and exclusive economic zones as well as high seas areas. It creates a Commission with authority to set catch limits and allocate catch quotas to fishing nations both within and outside the exclusive economic zones of coastal and island nations. The Commission can also regulate vessel types, fish size, and gear, and can establish area and time limitations. Decision-making will be by consensus for some issues and through chambered voting on others, with the interests of the distant-water-fishing nations and the island nations both carefully protected. It also allows decisions of the Commission to be reviewed by an arbitral review panel to ensure consistency and protect against discrimination.