Environment principles and the law: International environmental law, navigation regimes and the law of the sea

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В настоящей публикации, находящейся на стыке морского и экологического права, автор останавливается на чрезвычайно актуальных вопросах. Принципы международного экологического права, правовой статус морских пространств, навигационные режимы, статус полезных ископаемых, принципы устойчивого развития, принципы ответственности за нарушения экологического права и другие нормы, способствующие защите и охране морской среды, в том числе, со стороны государства флага судна — в центре внимания автора. Однако этим отнюдь не ограничивается предмет его исследования: борьба с загрязнением с судов, предупредительные меры и меры ответственности за загрязнение, перспективы развития морского и экологического права, а также взаимодействие этих правовых отраслей тоже рассматриваются автором статьи. The sea needs to be protected from pollution, extensive use and resource degradation. To this end, international environmental law is meant to manage natural resources and environmental quality. The Stockholm Declaration, the Rio Declaration and various charters and conventions all incorporate important principles of environmental law. Article 192 of the United Nations Convention of the Law of the Sea (UNCLOS) emphasises that all states must ‘protect and preserve the marine environment,’ both within and beyond national jurisdiction.
This article briefly reviews the essential elements of UNCLOS and the ways in which they interact with the principles of international environmental law.

International environment law principles
The principles of international environment law, as set out by Phillippe Sands in 1995, are incorporated in various international agreements and non-binding documents. Several of these principles interact with navigational regimes under the Law of the Sea:
a. States have sovereignty over their natural resources and the responsibility not to cause environmental damage
b. Preventive action
c. Good neighbourliness and international co-operation
d. Sustainable development
e. The precautionary principle
f. Polluter pays
g. Common but differentiated responsibility.

Maritime zones
UNCLOS divides the maritime environment into ‘maritime zones’ and ‘navigation regimes’. The maritime zones are:
• Territorial seas
• Exclusive economic zones
• Continental shelves
• Areas beyond national jurisdiction such as the high seas.
These zones arc crucial when deliberating on principles of
environment law.
According to Article 192 of UNCLOS, marine conservation is the responsibility of the coastal state. As the authority of the coastal stale terminates at the high seas, the convention also sets forth the responsibility of all states to protect the environment and reduce pollution beyond that point.

Navigation regimes
UNCLOS identifies four navigation regimes (that is, sets of rules governing the behaviour of vessels in certain circumstances) in addition to customary international law. All of these regimes are influenced by and interact with environment law principles. These regimes are:
a. Innocent passage through the territorial sea and archipelagic waters
b. Transit passage through straits used for international navigation
c. Passage through archipelagic waters
d. Navigation of the high seas.
Navigation regimes are particularly important to the protection of the marine environment and have paved the way in ensuring the conservation of the marine environment and wildlife.

Principle of sovereignty over natural resources
According to Article 56 of UNCLOS, the coastal state has the supreme right to explore, exploit, conserve and manage natural resources.
Article 61 gives it the right to determine the permissible catch of the living resources in its areas of jurisdiction. I lowever, it also directs the coastal state to ensure that living resources are not endangered by overexploitation.

Principle of sustainable development
Article 61 further indicates that the sustainable development principle directs states to maintain or restore populations of harvested species at levels that can produce the maximum sustainable yield. This permits coastal states to apply their own laws to preserve the navigational regimes under their jurisdiction to prevent unregulated fishing.
In spite of the freedoms of the high seas, environment law principles still have great relevance to issues concerning the freedom of fishing and freedom of scientific research. In this regard, states do not have the jurisdiction to pass laws concerning sustainable yield on the high seas. However, through Article 116, UNCLOS gives some guidance on how to determine catch limits. These principles of environment law, which are equivalent to Article 118 of UNCLOS, declare that states are bound to co-operate in the conservation and management of resources in the high seas.

Polluter pays principle
Principle 21 of the Stockholm Declaration ascertains the sovereign right of states to take advantage of national resources and their responsibility to guarantee that the activities within their control do not cause damage to the environment of other states. The power of coastal nations to enforce anti-pollution measures differs according to the location and the nature of the waters in question. Article 211(4) of UNCLOS, which incorporates principles of environmental law,
allows coastal states to adopt laws and regulations for the deterrence, reduction and control of marine pollution from foreign vessels, including vessels exercising the right of innocent passage.
Where violations have occurred within the territorial sea, only monetary penalties are imposed unless the vessel has intentionally caused serious pollution. This has a direct bearing on the polluter pays principle, under which the party responsible for pollution or degradation of natural resources is obliged to pay for restoration, clean-up, economic losses and damage to health.
UNCLOS Article 43 provides for co-operation between user states and states bordering a strait to provide navigational and safety aids and to prevent marine pollution. In some eases, this creates a problem because user states have been reluctant to contribute to the costs.
I lowever, it has also created a way for user states to be involved in the management of the straits, which is important for navigational safety.

Principle of common but differentiated responsibilities
Under the principle of common but differentiated responsibilities, all countries have equal responsibility for the protection of the global environment; however, the richer countries have a particular responsibility to undertake and pay for remedial action, such as the maintenance of straits. States with archipelagic sea lane passages (ASLPs) are eligible for support under this principle. A good example is the Cooperative Mechanism for the Malacca and Singapore Straits. This joint project aims to:
• Improve navigational safety by removing wrecks
• Replace aids to navigation destroyed by the 2004 tsunami
• Build capacity for response to accidents involving hazardous and noxious substances
• Provide financial contributions to the Aids to Navigation Fund.

Principle of preventive action
The principle of preventive action is also an obligation under the international environment law. The designation of archipelagic sea lanes to protect a delicate marine environment, or the use of domestic legislation to declare zones of restricted access, are just some of the countermeasures that may be applied to prevent, reduce or limit marine environment degradation. The Philippines consists of a span of atolls that are rich in marine biodiversity. In order to preserve this environment, the country has chosen not to designate an ASLP in the archipelago, citing the principle of preventive action.

High seas, straits and flag states
The high seas are shared by all. Due to this commonality, the conservation of the oceans has become a matter of priority. Environmentally irresponsible conduct on the high seas can be punished via the flag state of the offender. Flags of convenience, or vessels registered with states that do not prescribe or enforce rigorous fishing practices, sanitation and pollution control standards, are weaknesses of the high seas regime.
Straits play a kev role in navigation, but are vulnerable to pollution. This can create situations in which the interests of the flag state are at odds with those of the coastal state. Unimpeded navigation of these waters is of considerable importance to flag states. Coastal states, on the other hand, are confronted by a range of risks brought about by heavy- traffic, creating concerns for the marine environment. Accidents are more likely to happen in straits than in open seas, and spills ot harmful substances may have more serious consequences near the coastline and in shallow waters.
Flag states have the same expectation and interest within archipelagic waters as they do in straits used for international navigation. Coastal states will also have more or less the same concerns, due to the often enclosed character of archipelagic waters.
Articles 37 and 38 of UNCLOS introduced the concept of the right of transit that applies in straits used for navigation. A legal provision to control and regulate vessel-source pollution in such straits is modelled under Article 42(1) of UNCLOS Part III. However, there arc no particularly relevant provisions for coastal states enforcing jurisdiction over ships earn ing hazardous cargo and any pollution they may cause.

Vessel source pollution — opposing views
UNCLOS defines the exclusive economic zone (EEZ) as ‘an area beyond and adjacent to the territorial sea’ in which the rights and jurisdiction of the coastal state and the rights and freedoms ot other states interrelate. The United States takes a different view. It asserts that freedom of navigation on the high seas should be available to military vessels and aircraft, with rights to conduct military operations, exercises and activities to be enjoyed by all states in the EEZ. However, military operations have environmental implications, including key environmental challenges such as sonar operations.
In addition, the United States does not recognise the right of innocent passage through archipelagic waters. The USA once manoeuvred aircraft carrier USS Carl Vinson and operated aircraft within Indonesian archipelagic waters, claiming freedom of the seas. This challenged Indonesian domestic law and undermined precautionary laws imposed to protect the environment.
China has ratified UNCLOS but has a different stance on the issue, asserting that a third country must obtain prior permission it it chooses to use China’s EEZ for military — or even other — purposes. It considers warships or similar vessels entering the Chinese EEZ without such permission to be in violation of both national and international law. China has used force at sea towards US ships in an incident of bravado that confirms the Chinese hard line against states that engage in unauthorised military activity within its exclusive economic zone.
These different state practices demonstrate the various interpretations of navigational regimes and the associated environmental laws to prevent vessel-source pollution. UNCLOS Article 220 paragraphs (3), (5) and (6) are concerned with the coastal state enforcing jurisdiction over vessel-source pollution within the EEZ. This reflects an exercise of enforcement that depends on the seriousness of the damage.

Can maritime law and international environment law support each other?
The principles of international environmental law can be considered as basic elements of a framework statute that can be used as a base or general guide for introducing laws on the marine environment. The legal status of international environmental law principles and concepts varies. Some have already been constituted into laws; others are evolving and in the process ot gaining acceptance.
The follow ing discussion looks at how environment law principles are interacting with legal treaties and maritime laws. Mostly they are brought into use to fill the legal gaps in a particular law related to the environment, thus providing guidance on law enforcement.
UNCLOS’s navigational regimes for regulation of vessel-source pollution build mainly on rules originating from the principles ot international environment law. Any state has both the fullest rights over its natural resources and a duty not to cause damage to its environment. These obligations are reflected in Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration. These principles support the sovereign rights of the state, while providing a legal basis for bringing claims for environmental damage. 1 lowever, increasing numbers of substandard ships and pollutants entering navigational regimes has become a common tragedy.
The other principle of environment law, which applies especially to navigational regimes under state jurisdiction and state sovereignty, is the Principle of Preventive Action. According to this principle, every state is under an obligation to prevent damage to the environment within its own jurisdiction. This includes the obligation to take appropriate regulator)- and administrative measures.’
Article 74 of the UN Charter directs states to practise the principle of good neighbourliness and international co-operation. This principle is subject to many treaties and other international acts and is further supported by state practice. Principle 24 of the Stockholm Declaration has declared general political commitment to international co-operation in matters concerning the protection of the environment. Furthermore, Principle 27 of the Rio Declaration directs states and people to co-operate in good faith while fulfilling the obligations of the declaration.
The principle of sustainable development focuses on the adoption of standards for the management of specific natural resources and marine living resources. This concept considers the conservation needs of present and future generations while limiting the exploitation of natural resources. UNCLOS 1992, EEA agreement, the 1989 Lome Convention and 1987 ‘Bruntland report’ have effectively incorporated and used the principle of sustainable development.

Prevention of harm
Rules of liability and compensation for damage establish an incentive to prevent harm, and also may require restoration. Several treaties have been adopted to establish rules of liability in relation to pollution or damage to the environment. There is evidence to suggest that conventions such as MARPOL 73/78, the Oil Pollution Liability Convention and the dumping conventions have contributed positively to the protection of the marine environment. This particular law incorporates the essence of the ‘polluter pays’ principle, whereby the cost of environmental restoration has to be borne by the polluter.
Australia, which is reliant on the shipping industry, has recognised the environmental and economic impacts of the introduction of marine pests via ships’ ballast water as a threat to its marine environment. Accordingly, it has introduced mandatory ballast water management (BWM) requirements to reduce the risk of introducing harmful aquatic organisms into its waters. All internationally plying vessels intending to discharge ballast water anywhere inside the Australian territorial sea are required to manage their ballast water in accordance with these mandatory BWM requirements.
rfhe approaches enshrined within the United Nations Convention on the Law of the Sea on marine environment protection do not have much to do with pollution from land-based and other sources. However, the environment principle developed in .Agenda 21 on improving coastal zone management and regulatory human habitats recognises that the protection of the ocean and seas from land-based pollution will ultimately be achieved only by integrating considerations derived in international environment law, such as the precautionary principle.
One of the main sources of pollution from vessels is operational discharges, such as from the cleaning of tanks, deballasting or from discharges following accidents. The prevention of such pollution is addressed mainly by UNCLOS and MARPOL 73/78. Article 208 of UNCLOS directs that a state should protect the sea bed environment through national laws, but these laws should not be diluted to be less effective than international rules, principles and recommended practices. This precautionary principle has the widespread support of the international community.

Legal obligations
Principle 7 of the Rio Declaration states that signatories ‘shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem’. The special needs of developing countries and their capacities, and the principle of common but differentiated responsibilities, have also resulted in the establishment of an institutional mechanism to provide financial, technological and other technical assistance to developing countries by helping them to implement the obligation of particular treaties.
In contrast to environment principles, treaties and conventions have derived rules in a practical and binding manner. The environment principles have evidently guided these treaties, laws and conventions and served as a theoretical basis for various issues. Hence environment principles and rules point to particular decisions on legal obligations in special circumstances, but the directions that they give differ in character. Environment principles embody legal standards but the standards they contain are more general in nature. Unlike rules, they do not specify particular action.

Future of environment law
The complexity of this discussion reflects the extremely complex nature of the passage regime laid down in UNCLOS. Environment principles have been incorporated into many environment laws, treaties and conventions. Their application when it comes to navigational regimes can be ambiguous, particularly whether there are complications in identifying which passage regime applies. The application of environmental factors leads to unresolved questions and is not commensurate with the right of innocent passage, transit passage or non-suspendable innocent passage etc. Certain articles in bodies governing environmental law, including UNCLOS, use ambiguous language with undefined key words, which could lead to vague interpretations. This ambiguity allows countries in the Asia-Pacific region to affirm opposing views on the application of UNCLOS and its environment obligations in different navigation regimes.
Certain states have introduced domestic/international legislation to overcome particular articles ot UNCLOS that are contrary to their maritime interest, and they have also confused the validation of UNCLOS in navigational regimes. It is a duty of all states to have a greater clarity and understanding of the Law of the Sea, particularly with regard to navigational regimes and environment protection.
UNCLOS is without qualification the single most important and far-reaching legal instrument to address issues of marine conservation. The comprehensive nature of UNCLOS provides a framework to address future issues in the law of the sea, and its provisions can foster additional progress in environment conservation. However, the future of marine conservation depends upon the ability and willingness of states to interact comprehensively with these common objectives and on the capacity of individual states to prescribe and enforce their own marine conservation laws according to the environment law principles.
This is an edited version of a paper first given at AMFUF. A full, and fully referenced version is available from editor@nautinst.org

 

Автор: Rear Admiral J J Ranasinghe AFNI
Vice Chancellor, General Sir John Kotelawala Defence University

Источник: Seaways. — 2018. — December. — P. 14 — 16.