Protection of the Marine Environment Protection of the Marine ...

22.07.2010 

Protection of the Marine Environment 

• I. Introduction 

• the relevant legal source is the UN Convention on the Law of the Sea 

(UNCLOS), which was adopted in 1982 and entered into force in 1994; it can 

be considered to be the “Constitution of the Seas” and contains a separate 

part XII for the protection and conservation of the marine environment. 

• UNCLOS is a framework convention, which is subject to specification on 

universal, regional and national level by way of further treaties. 

• the majority of the numerous relevant treaties refer to particular aspects of 

marine protection such as the introduction of material into the marine 

environment, shipping as a source of pollution, the introduction of waste 

(“dumping”) and the protection of marine resources (protection of species 

and stocks) 

International Law of the Sea 

Prof. Dr. Alexander Proelß 


• II. Protection of the Marine Environment under UNCLOS 

• Part XII of UNCLOS refers primarily to the pollution of the marine 

environment, not to the protection and sustainable use of marine species 

• regarding the protection of species and fish stocks, the pertinent regulations 

were foremost placed within the context of the Economic Exclusive Zone (EEZ) 

and the High Seas, thus the protection is spatialized; this implies that the 

living resources are distributed amongst different actors. 

• it should be noted, though, that according to Art. 194 (5) UNCLOS measures 

taken in accordance with Part XII “shall include those necessary 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” 



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• some authors suggest that Art. 194 (5) UNCLOS provides the basis for the 

authorization of a coastal State to take measures in regard to the protection 

of stock and species 

• if this view is followed, a coastal state would be able to rely on Art. 56 (1) 

(b) (iii) UNCLOS in conjunction with Art. 194 (5) UNCLOS in order to 

designate protected areas in its EEZ from which ships of other States 

could be excluded 

• interpreted correctly, however, Art. 194 (5) UNCLOS cannot be understood as 

a norm providing for the competence to establish individual protection 

measures; it rather represents a mere “opening clause”; this arises from the 

reservation “in accordance with this part”, which refers among others to Art. 

194 (1) UNCLOS, which itself requires that all measures in relation to the 

protection of the marine environment shall be “consistent with this 

Convention”. As to the designation of marine protected areas in the EEZ, Art. 

211 (5) UNCLOS contains a special regulation which must be respected 

according to Art. 194 (1) UNCLOS 




• it follows from the foregoing that the structural principles set out 

in Part XII UNCLOS (precautionary principle etc) not only apply for 

the protection of the marine environment in regard to pollution, 

but also for the protection of species and stocks 

• this has been confirmed by the International Tribunal of the 

Law of the Sea (ITLOS) in the Southern-Bluefin Tuna Case: 

“Considering that the conservation of the living resources of 

the sea is an element in the protection and preservation of 

the marine environment” (ITLOS Reports 1999, 280, 295) 

• UNCLOS is consequently based on a holistic approach, with the 

primary focus being on the issue of sustainable development 



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• cf. also Paragraph 3 of the Preamble to UNCLOS : “Conscious that the 

problems of ocean space are closely interrelated and need to be 

considered as a whole.” 

• 1. Structure and General Principles of Part XII UNCLOS 

• Part XII UNCLOS opens with the general and comprehensive Article 192, 

according to which states are obliged “to protect and preserve the marine 

environment” 

• this legal obligation is also applicable under customary international 

law; it is debatable, however, whether it is an obligation erga omnes 

(the consequence would be that infringements can be sanctioned by 

all states [controversial!]; probably no “persistent objection” 

possible) 




• Art. 192 on one hand and Art. 194 on the other symbolize the 

traditional antagonism between the State´s interest in protecting 

the environment and the use of the marine resources; but note 

that the wording of Art.193 UNCLOS only refers to the resources 

located in areas within the limits of national jurisdiction 

• of all the general principles of international environmental law, 

only the prohibition against transboundary environmental harm 

(Art. 194 (2) UNCLOS) and the principle of origin (cf. Art. 195 

UNCLOS; the transfer of damage would conflict with the principle 

that pollution must preferably be countered at its origin) are 

explicitly mentioned in Part XII UNCLOS 

• but: as shown above, the precautionary principle is contained 

implicitly (Art. 194 (5) UNCLOS) in Part XII UNCLOS and must, 

therefore, also be considered as forming part of the legal 

framework concerning the protection of stocks and species 



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• although Art. 194 (1) UNCLOS only mentions the prevention, 

reduction and control of pollution of the marine environment 

(which rather militates in favour of the preventative principle 

[= the prevention of environmental hazards]), the relevance 

of the precautionary principle results from the definition of 

“pollution” in Art. 1 (1) No. 4 UNCLOS (“the introduction by 

man, directly or indirectly, of substances or energy [...], which 

results or is likely to result in such deleterious effects as harm 

to living resources [...]”) 

• cf. also the ITLOS in the Southern Bluefin Tuna-Case: “the 

parties 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“ (ITLOS Reports 1999, 280, 296) 




• however: as a result of the lack of codification within the 

framework of UNCLOS, one cannot assume that in the case that a 

State denies the hazardous nature of one of its actions, the 

burden of proof is imposed on that State (no reversal of the 

burden of proof; the contrary result is only valid within the 

framework of the regional OSPAR-Convention); a.A. Request for an 

Examination [...], Diss. Opinion Weeramantry, ICJ Reports 1995, 

287, 317, 343 

• the general rules of Arts. 192-196 UNCLOS are followed by Arts. 207- 

212 UNCLOS which contain special provisions in respect of marine 

pollution from different sources (land-based sources; introduction of 

foreign substances; activities on the Continental Shelf and in the Area; 

pollution from the air or through the air; by shipping), as well as by 

corresponding specifications with regard to the enforcement of the 

material legal rules (Arts. 213-222 UNCLOS) 



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• all of these provisions, even though they are only directed at one 

source of pollution respectively, are subject to further 

specification on the universal, regional and national level 

• 2. Specification on the universal level 

• a) Pollution from land-based sources 

• in respect of land-based pollution, which is responsible for 2/3 

of the marine pollution, attempts to negotiate an universal 

agreement have so far remained unsuccessful; previous 

endeavours have only resulted in the legally non-binding 

Programme of Action for the Protection of the Marine 

Environment from Land-Based Activities (UN Doc A/51/116, 

Annex II) 




• however: land-based pollution is the primary task of terrestrial 

environmental and freshwater protection (see, e.g. the Water 

Framework Directive of the European Community, which includes 

coastal waters) 

• b) Pollution by dumping 

• with regard to the type of pollution being qualified as “dumping”, 

the specification of the UNCLOS provisions concerned is provided by 

the Convention on the Prevention of Marine Pollution by Dumping 

of Wastes and Other Matter of 1972, commonly called the “London 

Convention”; UNCLOS refers to this treaty in Art. 210 (6) by means of 

a reference to the words “global rules and standards“, thereby 

establishing a minimum standard 

• consequently, States parties to UNCLOS are indirectly bound to the 

London Convention, no matter if they have acceded to it or not 



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• according to the London Protocol there exists a general 

prohibition to dump 

• in view of the small number of accessions to the London Protocol, 

the Contracting Parties to the London Convention have in recent 

years partially aligned its provisions to the ones contained in the 

Dumping Protocol by means of enlarging the “black-list” in the tacitacceptance 

procedure 

• c) Pollution from shipping 

• the specification of this type of pollution is essentially made effective 

through the detailed guidelines of the International Convention for 

the Prevention of Pollution From Ships of 1973 (MARPOL) with its 6 

Annexes and the Protocol from 1978 




• MARPOL is a framework Convention which was negotiated under the 

auspices of the IMO; besides some very general principles and rules, the 

Convention merely contains procedural regulations on amendments and 

settlement of disputes 

• MARPOL has 6 annexes which contain the material standards relevant to 

the prevention of marine pollution from ships 

• Annex I: Pollution of the marine environment by oil (applies 

automatically to all contracting parties to the Convention) 

• any discharge of oil mud or so-called sludge, which is produced by 

the operation of ship machines, is forbidden; discharges of 

oleiferous bilgewater and residues from cargo of oil-tankers are 

only permitted under very strict requirements and only in small 

quantities or/and following dilution; normally, such residues are to 

be dispensed in ports in collecting ponds 



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• with the 2004 amendments (which entered into in force on 1 

January 2007), MARPOL was amended by, inter alia, introducing 

a time management plan for the phasing out of single-hull 

tankers 

• Annex II: pollution by noxious liquid substances (applies 

automatically) 

• Annex III: pollution by harmful substances in packaged form 

(this is an optional Annex which needs to be ratified) 

• Annex IV: pollution by sewage from ships (optional) 




• Annex V: pollution by garbage from ships (optional) 

• Annex VI (in force since 19 May 2005): prevention of air pollution 

from ships (optional) 

• contains emissions standards for ships with regard to SOx, 

NOx and ozone depleting substances, but not in respect of 

CO2 emissions 

• deals with the creation of „SOx emission control areas“ 

(SECAs), i.e., special areas within which stricter requirements 

apply with regard to sulphur emissions, or where vessels 

must be equipped with an exhaust gas cleaning system or 

must make use any other technological method to limit SOx 

emissions (applicable in the Baltic Sea, the North Sea and the 

Channel) 



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• note that under the revised Annex VI which was adopted 

in October 2008 (entry into force 1 July 2010), NOx and 

particulate matter were recognized as pollutants relevant 

for the establishment of emissions control areas; these 

“ECAs” replace the former SECAs with immediate effect 

• it is currently discussed whether Annex VI may also be 

used as a basis to restrict greenhouse gas emissions from 

ships; debates focus on a potential inclusion of 

international shipping in any kind of emissions trading 

scheme (global or regional) 




• there is a one general problem which follows from the so-called 

NMFT-Clause of Art. 5 (4) MARPOL: „With respect to the ships of non- 

Parties to the Convention, Parties shall apply the requirements of the 

present Convention as may be necessary to ensure that no more 

favourable treatment is given to such ships.” 

• (P): Is this norm compatible with the principle of pacta tertiis nec 

nocent nec prosunt (Art. 34 VCLT)? 

• this is problematic as according to Art. 6 (2) MARPOL, coastal 

State authorities may control foreign ships 

• the most conceivable argument in this respect seems to be that 

since more than 130 States are parties to MARPOL (representing 

97% of the world trade tonnage), the Convention is valid under 

customary international law 



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• however, this view cannot be accepted in respect of violations of 

pollution standards which occur seaward the coastal State´s 

territory (= seaward the internal waters and the territorial sea); 

accepting enforcement competences of the coastal State for such 

violations would represent an exercise of illegal extraterritorial 

jurisdiction and, therefore, would significantly exceed 

international customary law 

• a substantial reason for the lack of acceptance of the 

Straddling Fish Stock Agreement is that it provides port 

States with extensive enforcement authority which also 

covers breaches of measures related to fisheries protection 

on the high seas (see also Art. 23 of the Fish Stocks 

Agreement) 

• prevailing opinion: NMFT-Clause has only „indirect“ or „factual“ 

third party effect which is not covered by Art.34 VCLT 




• it should be noted, though, that Art. 5 (4) MARPOL does not only 

produce an indirect political effect, but aims at indirectly legally binding 

third States 

• note also: the compatibility of comparable cases of Art. 2 (6) and Art. 102 

(2) of the UN-Charter with the pacta tertiis-rule is controversial 

• it must be borne in mind that enforcement of pollution standards 

relevant to the EEZ or high seas affects the principle of flag State 

jurisdiction and, thus, one of the basic rights of States 

• consequently, Art. 5 (4) MARPOL should be interpreted in a restrictive 

manner in conformity with Art. 3 (1) lit. b MARPOL, whereby the 

Convention also applies to vessels which are not authorised to sail under 

the flag of one of the Contracting parties, but which are operating under 

the jurisdiction of one of the contracting parties 



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