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Implications of Agenda 21 and UNCLOS for International Waters as a GEF Focal Area

Rudolf Dolzer

Working Paper

Number 15

ti GEF

l I

Editorial Board GEF Working Paper Series

Kenneth King, Chairnian of the Editorial Board Assistant Chief Executive Officer, GEF GEF Secretariat

Jan Bojo Natural Resources Economist The World Bank

David Freestone Legal Advisor, Environment The World Bank

Thomas Johansson Director, Energy and Atmosphere Programme United Nations Development Programme

John Pernetta Senior Programme Officer, International Waters United Nations Environment Programme

Madhav Gadgil Chairman, Scientific and Technical Advisory Panel (ex-officio) Global Environment Facility

. Published 1998 Global Environment Facility

This working paper may be reproduced in whole or in part and in any form for educational or nonprofit uses, without special permission, provided acknowledgment of the source is made. The Global Environ-ment Secretariat would appreciate receiving a copy of any publication that uses this publication as a source. Copies may be sent to GEF Secretariat, G 6-148, 1818 H Street NW, Washington, DC 20433.

No use of this publication may be made for resale or other commercial purpose without prior written consent of the Global Environment Facility Secretariat. The designations of geographical entities in this document, and the presentation of materials, do not imply the expression of any opinion whatsoever on the part of the GEF concerning the legal status of any country, territory, or area, or its authorities, or concerning the delimitation of its frontiers or boundaries. The views expressed in this paper are not necessarily those of the GEF or its associated agencies.

ISBN 1-884122-99-x

ii

Contents

1. Introduction 1

2. International Waters as a GEF Focal Area: Guidance by "Secondary Treaties" 2 A. Special Features of the International Waters Focal Area 2 B. Detachment from the Political Process and from Abstract Criteria 2 C. Guidance by Non-GEF-Focused ("Secondary") Treaties 3 D. Definition and Nature of "Secondary" Treaties 3 E. Approach-Oriented Concerns in "Secondary" Treaties 4 F. Presumption Against a "Secondary" Approach 4 G. Lack of Reference to UNCLOS and Agenda 21 4 H. UNCLOS andAgenda 21: Relationship and Relevance 5

3. The Marine Environment in UNCLOS 7 A. Sustainable Development: Protect and Utilize (Articles 192 and 193) 7 B. Prevent, Reduce, and Control Pollution (Article 194) 7 C. "Best Practicable Means" (Article 194) 9 D. Role of Assistance and Preferential Treatment 9 E. Negative Effect of Technology 9 F. Areas of Action 9 G. Global and Regional Cooperation 20 H. Promotion of Science 21 I. Monitoring and Environmental Assessment 22 J. Ice-Covered Areas 23

K. Responsibility and Liability 23

4. Comparing UNCLOS and GEF: Purposes, Values, and Priorities 24

5. The Marine Environment in Agenda 21 26 A. Range of Issues Addressed 26 B. Key Concepts and Objectives 26

6. Conclusions 30 A. UNCLOS and Agenda 21 as Guiding Documents 30 B. Implicit Priorities for Action 30

iii

1 Introduction

Although entrusted with protecting international wa-ters, the Global Environment Facility (GEF) is not tied to any international treaty or arrangement govern-ing this area. After GEF's establishment in 1991, more than 120 heads of state adopted the principles of sustainable development for international waters in chapter 17 of Agenda 21. Moreover, in 1994 the U.N. Convention on the Law of the Sea (UNCLOS), often hailed as the new global constitution of the oceans, entered into force.

This study by Professor Rudolf Dolzer, Director of the Institute for International Civil Law at the University of Bonn, addresses potential implications of Agenda 21

and UNCLOS for GEF's mandate to protect interna-tional waters. It concludes that, in principle, no reason exists for GEF to ignore or disregard UNCLOS or Agenda 21, provided the two documents reflect the same spirit and objectives as GEF and are detailed enough in their various parts to provide specific guidance.

The purpose of this study is, thus, to review the key environmental provisions of UNCLOS and concepts laid down in Agenda 21 in light of GEF's objectives and to point out similarities and differences in the pur-poses, values, and priorities embodied in GEF on the one hand and UNCLOS and Agenda 21 on the other.

1

International Waters as a GEF Focal Area: 2 Guidance by "Secondary Treaties"

The Instrument for the Establishment of the Restruc-tured Global Environment Facility (1994), the con-stituent document of GEF, states that GEF will provide "grant and concessional funding to meet the agreed incremenqtl costs of measures to achieve agreed global environmental benefits in the following focal areas: climate change, biological diversity, in-ternational waters, and ozone layer depletion."

A. Special Features of the International Waters Focal Area

The international waters focal area occupies a unique place for several reasons:

• Unlike the other focal areas, international waters is not addressed by a single international agreement designed to promote global sustainability and des-ignating GEF as a funding mechanism.

• No single international body or mechanism has been set up to regulate the use of international waters and coordinate international activities meant to conserve marine ecosystems.

• The precise definition of global environmental benefit regarding international waters appears to be less obvious. Different types and levels of envi-ronmental concerns relate to the state of interna-tional waters. These include marine degradation,

conservation of living resources, and protection of habitats and ecosystems. Essentially, environmen-tal marine concerns are targeted at the sustainable utilization of marine resources and preservation of marine life and habitats. The main threats stem from water quality degradation and overexploita-tion of marine resources.1

As a result, identification of areas for GEF interven-tion, selection of criteria for priorities, and determina-tion of the types of desirable interventions raise questions that in principle do not arise in the same way in the other focal areas.2 Lack of criteria and priorities identified in a framework agreed on by the interna-tional community and specified in an ongoing institu-tionalized process requires a higher degree of autonomous decisionmaking on the part of GEF.

B. Detachment from the Political Process and from Abstract Criteria

This widened discretion in decisionmaking within GEF does not in itself raise concern or criticism. For international waters, GEF is called on to utilize its novel instruments and methodologies to identify glo-bal environmental deficiencies and rectify them for the sake of sustainable development. It must do so without any considerations intermediate to scientific assessment of the state of the environment and its own actions. What is absent, thus, is the political expres-

The term "marine degradation" is favored over "marine pollution" by those who argue that prevention of overfishing must be part of the effort to protect the marine environment (see UN Doc. A/49/631, para. 76).

2 For a general view of GEF and its mandate to protect international waters, see L. Jorgenson, The Global Environment Facility: International Waters Coming Into Its Own (1997), Oxford, Oxford University Press

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sion of a set of guiding principles that lie somewhere between purely scientific evaluation on the one hand and designation of concrete criteria for action on the other.

From a different vantage point, in the international waters area, GEF is removed from both the political process and the need to relate its decisions to a set of abstract criteria. These may or may not fully reflect actual current environmental necessities. It can be argued that absence of the guidance and channelling of decisionmaking - which the Convention on Bio-logical Diversity, the U.N. Framework Convention on Climate Change, and the conventions on the ozone layer (all ''primary treaties") provide for the other focal areas - does not in any way hamper GEF' s tailoring of actions using scientific criteria and con-siderations. At the same time, the conventions named protect GEF against criticism that it does not respond to the will of the international community, that is, the states that organize, govern, and finance GEF. The GEF Council is, however, empowered to set guide-lines irrespective of a relevant agreement. 3 The Coun-cil, thus, has the right to direct GEF to set specific priorities that may or may not refer to any agreement.

C. Guidance by Non-GEF-Focused ("Secondary") Treaties

Aside from other considerations from the GEF point of view, any approach that pushes GEF to formulate and devise its work program in isolation from existing expressed will of the international community will ultimately fail. It can be argued that GEF would ben-efit from the protective and legitimizing function of rules agreed on by representatives of the states and meant to guide its actions. Rules targeted at GEF are not present in the area of international waters. It is appropriate, therefore, to review non-GEF-focused treaties· and documents that may indicate which areas or kinds of actions by GEF would serve the interest of the international community and, thus, be expected by GEF. Such a review is especially appropriate for inter-national waters, because a web of environmentally concerned treaties exists.

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The U.N •. ~ecretary-general recently pointed to inad-equate implementation of existing conventions.4 The degree of violations against existing commitments could be more serious than admitted by the states. Even under the Mediterranean Action Plan, the major-ity of the parties have not fulfilled their commitments to control and monitor effluents and sources. The submission of relevant data has been slow and frag-mentary.5

Nevertheless, it would not be appropriate to consider GEF a funding mechanism for all existing marine environmental conventions. A careful analysis of in-dividual aspects of the global water situation is needed. If GEF concerns tum out to be identical with interests reflected in conventions, there is no reason for GEF to ignore them. It would appear appropriate, however, for GEF to pursue its projects within its established organizational framework.

D. Definition and Nature of "Secondary" Treaties

A search for "secondary" sources for GEF guidance is bound to take place only within the parameters of the general work program that the international commu-nity has entrusted to GEF. In other words, only such treaties and documents that reflect the values and objectives embodied in GEF should be taken into account. Not every international document addressing the environment is informed by the same philosophy that prompted the international community to estab-lish GEF as a novel institution with the specific aim of assisting "in the protection of the global environment and promote thereby environmentally sound and sus-tainable development. "6

Obviously, for GEF activities regarding international waters, no single "secondary" treaty or document re-flects the full range of GEF concerns. No need exists, however, to call for an all-embracing concept of com-patibility. A more modest approach intended to iden-tify individual compatible factors found in "secondary" treaties or documents can provide suffi-cient guidance for GEF' s work program. Separate

3 See paragraph 20 of the Instrument for the Establishment of the Restructured Global Environmental Facility. 4 UN Doc. Af50/713, para. 194. 5 UN Doc. Af49/631, para. 100. 6 From the preamble. For a recent discussion of sustainable development, see R. Beyerlin, "The Concept of Sustainable

Development," in R. Wolfrum, ed., Enforcing Environmental Standards: Economic Mechanisms or Viable Means, New York: Springer (1996), p. 95, which has many further references.

3

issues, such as substari.tive areas and their priority rankings, regional work priorities, or concepts for the simultaneous promotion of ecological and economic concerns, can be reviewed in various "secondary" treaties to identify their usefulness to GEF.

E. Approach-Oriented Concerns in "Secondary'' Treaties

It also appears useful to analyze more approach-ori-ented areas. Issues peculiar to the weighing of eco-logical and economic issues may be reviewed in "secondary" documents. Various possible types of intervention in favor of the environment are also of interest. It may be useful to consider measures other than classical projects, such as administrative or legis-lative concepts, incentive-based interventions, or more prominent coordination of efforts in future GEF operations. In general, GEF has so far relied primarily on action-oriented interventions. GEF might also con-sider acting as a broker and facilitator among compet-ing interests.

The amount of GEF resources available currently and in the future will obviously not suffice to deal with even the most pressing global environmental issues. GEF, therefore, may wish to focus less on specific results of GEF actions and more on incentives, assess-ments, persuasion, and conceptual and strategic ad-vice. "Secondary" treaties may be useful in identifying areas of concern that are broader than those relating to projects, to which GEF could then tum to promote its objectives. Of course, only a de-tailed and full review of dozens of treaties would indicate the precise areas in which GEF could benefit from concepts or interventions contained in those agreements.

F. Presumption Against a "Secondary" Approach

Before turning to specific issues relating to interna-tional waters and GEF, a note of caution is warranted. Beyond substantive GEF requirements for the global nature and benefit of a concern, it should be recognised that the states were well aware of the abun-dance of water-related international agreements when they drafted the rules for GEF. They opted, however, not to tie any of them to GEF. Nothing prevented them from making GEF funding available to support any agreement.

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In the absence of a strong or compelling argument to the contrary, one may assume that the states did not or do not want GEF to be bound by any specific treaty or document. This reasoning is consistent with the gen-eral principles of treaty interpretation in international law, which requires that, in the case of two treaties regulating the same subject matter, the more recent treaty has precedence, unless the older one is consid-ered more specific. The lack of a binding effect, however, does not exclude GEF from assuming that a treaty could informally guide and channel its actions.

G. Lack of Reference to UNCLOS and Agenda21

The main focus of this study is the relevance of the U.N. Convention on the Law of the Sea and Agenda 21. UNCLOS was negotiated primarily in the 1970s and adopted in· 1982, that is, almost a decade before GEF's establishment. Agenda 21, however, was laid down a year after GEF rules were adopted in 1991. It is, thus, appropriate to deal with UNCLOS and Agenda 21 separately.

United Nations Convention on the Law of the Sea

UNCLOS entered into force on November 16, 1994. Why did the drafters of GEF not refer to the agree-ment (or relevant parts), even though the text had been adopted in 1982? From a legal viewpoint, it is important to recognize that the convention had not yet entered into force when GEF was established. More-over, in 1991 it was not entirely clear when the con-vention would become binding; indeed, it was doubtful whether it would, given remaining contro-versy on the legal regime of deep seabed mining covered in part XI.

Of course, it would have been possible in drafting GEF to refer solely to those parts of the convention that addressed environmental matters. Such an ap-proach, however, would have conflicted with the of-ten cited viewpoint that the various parts of the convention could not be separated. The preamble states that "the problems of the ocean space are closely interrelated and need to be considered as a whole." It may have been considered inconsistent with the basic tenet of the convention to single out and base GEF water activities on the environmental portion, whereas the fate of the convention as a whole was still unsure.

These considerations do not address . whether UNCLOS rules on the marine environment were con-sidered appropriate as the binding framework for GEF water operations. Part II of this study will review to what extent relevant UNCLOS rules could have served that purpose, given their substance and the basic concepts underlying GEF. It is not entirely clear whether the drafters of GEF' s rules would have had enough time to review this in the first place. They may have considered the task of defining GEF' s mission in the international waters focal area best left to those in charge of GEF operations and that environmental rules laid down in UNCLOS might contribute to their detailed considerations and judgment.

Agenda21

The relationship between GEF and Agenda 21 is quite different from that between GEF and UNCLOS. In Rio deJaneiro, Agenda 21 devoted a full chapter to international waters, less than a year after GEF' s es-tablishment. The timing of negotiations on GEF and on Agenda 21, in fact, significantly overlapped. Moreover, contrary to the situation concerning UNCLOS, GEF and Agenda 21 are both part of the same international focus on sustainable development that emerged after adoption of the Brundtland Report and crystallized for the first time in Rio. In fact, GEF and Agenda 21 occupy center stage in that process.

Agenda 21 and GEF were not conceived at the same working levels or with the same working perspective. GEF was meant to deal with the most pressing issues; Agenda 21 addresses the evolution of global environ-mental politics in the coming decades. But this does not detract from the fact that chapter 17 of Agenda 21 was written specifically so international waters would not be further degraded, but conserved and improved. It also spelled out principles and guidelines that would allow future generations to benefit from marine re-sources.

GEF and Agenda 21 are, therefore, complementary . elements of ideas embodied in the Rio process. It is, therefore, appropriate to study them together. Any approach to the GEF international waters area that disregards the existence of chapter 17 of Agenda 21, in fact, is open to criticism, because it would separate

7 UN Doc. A/49/631, para. 59.

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GEF from ,the most pertinent long-run international effort to date to shape policies on internatfonal waters to conform with aspirations that guide and inform GEF itself. A review of chapter 17 of Agenda 21, examining its bearing on GEF activities, appears in-dispensable to establishing an accepted international framework for GEFwater policies.

H. UN CLOS and Agenda 21: Relationship and Relevance

It is no surprise that States and international organisations now tend to deal with the implementation of Agenda 21 together with that of the Convention.7

It is appropriate to first address the relationship be-tween the two documents, particularly because of their different legal statuses. Whereas UNCLOS en-joys legal force, Agenda 21 has been drafted as a nonbinding text that spells out recommendations to the international community. This basic difference is altered by the fact that UNCLOS was not yet binding when Agenda 21 was adopted. Agenda 21 itself states

. that its drafters recognized the existence and status of UNCLOS:

International law, as reflected in the provisions of the United Nations Convention on the Law of the Sea referred to in this chapter of Agenda 21, sets forth rights and obligations of States and provides the inter-national basis on which to pursue the protection and

·sustainable development of the marine and coastal environment and its resources. This requires new ap-proaches to marine and coastal area management and development at the national, subregional, regional, and global levels, approaches that are integrated in content and are precautionary and anticipatory in ambit ...

It is, thus, clear that Agenda 21 was not meant to change UNCLOS. The drafters of Agenda 21 had no mandate to amend the convention. Given this, why should Agenda 21 contain a section on the marine environment at all? A document addressing the matter existed and rightly enjoyed a higher rank, not being subject to change.

There may be two answers: First, Agenda 21 was meant to speak comprehensively on all major areas of international environmental politics, of which inter-national waters is certainly central. Second and more

5

important, the text and substance ofthe marine section of Agenda 21 reveal that its authors thought it useful or necessary to revisit major themes on the marine environment.

All this does not explain the effect that a nonbinding Agenda 21 was meant to achieve against the back-ground of UNCLOS, often considered the "constitu-tion" of the emerging ocean and water regime. Indeed, no obvious answer can be given. Was Agenda 21 to criticize indirectly decisions underlying the relevant

6

section ofUNCLOS? Was it simply supposed to reaf-firm UNCLOS in the terminology of the concept of sustainable development? Or was Agenda 21 intended to specify and supplement part XIl of UNCLOS in

. areas that had been drafted in vague or general terms? Was Agenda 21 a mixture of these three approaches? Only a comparison of Agenda 21 and UNCLOS will provide the answer. This issue will, therefore, be re-visited after an analysis and comparison of UNCLOS and Agenda 21. The implications for GEF activities will then be addressed.

3 The Marine Environment in UNCLOS

This analysis of UNCLOS will first follow the struc-ture adopted in part XII of UN CLOS (paragraphs 192-237), which is subdivided into nine sections. The fisheries issue will then be reviewed (part V of UNCLOS on the exclusive economic zone and part XII on the high seas). 8

The significance of UNCLOS has generally been de-scribed by the U.N. secretary-general as a framework for future deliberation and action:

. . . the Convention provides a universal legal frame-work for rationally managing marine resources and an agreed set of principles to guide consideration of the numerous issues and challenges that will continue to arise. From navigation and overflights to resource ex-ploration and exploitation, conservation and pollution, and fishing and shipping, the Convention provides a focal point for international deliberation and action.9

This evaluation is correct with regard to the wide range of interests covered, the generality of many of its provisions, and the political discretion left to future balancing of competing interests.

A. Sustainable Development: Protect and Utilize (Articles 192 and 193)

Part XII begins by presenting legal principles all states must follow in their conduct affecting the marine en-vironment. Generally, rules of international law ad-dress only relations among states, excluding their internal conduct. It is, therefore, remarkable that the basic rule set forth in the first norm (Article 192) spells out, without any territorial restriction, that states "have the obligation to protect and preserve the marine environment." No specification is added nor is any machinery provided to implement the rule. 10

8 Recent general works on the state of international law in relation to marine pollution include Nordquist and others, United Nations Convention on the Law of the Sea: A Commentary (under publication); A. Boyle, "Marine Pollution under the Law of the Sea Convention," American Journal of International Law 19 (1985), p. 347; C. Fleischer, ''The Preservation of the Marine Environment" in R. Dupuy and D. Vignes, eds., A Handbook on the New Law of the Sea, Dordrecht Kluwer Academic Publishers (1991), p. 1151; D. Zwanger and A. Smillie, "Marine Environmental Protection" in E. Gold, ed., Maritime Affairs: A World Handbook, second edition, Oceans Institute of Canada, Essex: Harlow (1991), p. 238; D. Brubaker, Marine Pollution and International Law, London: Belhaven Press (1993); J. Charney, ''The Marine Environment and the United Nations Convention on the Law of the Sea," The International Lawyer 28 (1994), p. 879; D. Dzidzornu, "Marine Pollution Control: The Evolving International Law," The Australian Journal of Natural Resources Law 2(1) (1995), p. 111. See also the Report of the U.N. secretary-general on the Law of the Sea (November 1, 1995) (Doc. A/50/713).

9 UN Doc. A/48/935, para. 177. 10 See A. Kiss, "The International Protection of the Environment" in R. MacDonald and D. M. Johnston, eds., The Structure

and Process of International Law, Boston: Martinus Nijhoff (1983), p. 1069.

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Even though part XII addresses the marine environ-ment and economic issues are covered extensively in other parts of the convention, the authors felt it neces-sary to then say that states have the "sovereign right to exploit their resources" (Article 193), again qualify-ing this right with a reference to national environmen-tal policies and the rule expressed in Article 192.

These two initial articles may, in a sense, reflect the contemporary call for sustainable development, be-cause they address the two main aspects, environmen-tal and economic considerations. This duality, however, was by no means novel or surprising when it was laid down. It already clearly appears in the fa-mous principle 21 in the Stockholm Declaration of 1972:

States have, in accordance with the Charter of the United Nations and with the principles of interna-tional law, the sovereign right to exploit their own resources pursuant to their environmental policies and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.11

After 1972, the sovereign right of developing states to exploit their natural resources had acquired central importance in the aspirations of these states for a new international economic order. This clearly explains why these states have insisted on a reference to their sovereign economic rights in environmental contexts as well. The wider scope of Article 192, extending the requirement of protection to the areas under national jurisdiction, made it imperative from the point of view of developing states to reiterate the corollary right of economic sovereignty.

From a legal perspective, it was not beyond doubt whether a general, and unqualified requirement to pro-tect and preserve the marine environment, as laid down in Article 192, would exist without express confirmation in a treaty. The convention has reaf-firmed and strengthened the emerging principle that each state is bound to be sensitive to environmental

concerns. Although UNCLOS, thus, recognizes both environmental and economic concerns in an accentu-ated way, it treats the two aspects in two separate articles without referring to an ~tegrated perspective on sustainable development.

B. Prevent, Reduce, and Control Pollution (Article 194)

Article 194 elaborates to a degree the principles set forth in the two previous articles.

Section 1 requires states, individually or jointly, "to prevent, reduce and control pollution of the marine· environment from any source ... "The term "pollution of the marine environment" is defined in Article 1, section 4, of the convention as

... the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legiti-mate uses of the sea, impairment of quality for use of sea water, and reduction of amenities.

For purposes of the protection and preservation of the marine environment, this general approach is adapted so that the measures taken "shall include those neces-sary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened, or en-dangered species and other forms of marine life" (Ar-ticle 194, section 5).

This broad concept reflects a modern sensitivity to-ward requirements of a holistic environmental policy approach. The rule forms a solid basis for many projects that GEF has so far undertaken, even though it does not spell out in detail which specific measures or projects should be required or favored. Even so, Article 194, section 5, could have been phrased using more anticipatory language to avoid the impression that protective action is only required once damage has occurred.

11 On principle 21, see R. Lagonim "Die Abwehr con Gefahren fur die marine Umwelt," Environmental Protection in Public International Law and Private International Law, Berichte de Deutschen Gesellschaft far VOlkerrecht 32 (1991 ), p. 87; L.B. Sohn, "The Stockholm Declaration on the Human Environment:' Harvard International Law Journal 14 (1973), p. 423.

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C. "Best Practicable Means" (Article 194)

On the need to prevent, reduce, and control pollution, . the convention goes on to require states to use "the best practicable means at their disposal and in accor-dance with their capabilities, and they shall endeavor to harmonize their policies in this connection" (Ar-ticle 194, section 1). This indirectly addresses the relevance of the development, acquisition, and use of technology suitable to protect the environment for developed and also developing states. In conformity with recent global environmental treaties, a differenti-ating approach is introduced that recognizes, under the umbrella of a global environmental framework, that states have different means and capabilities to implement global environmental objectives.

D. Role of Assistance and Preferential Treatment

This theme is further developed in section 3 of part XI (Articles 202-203), which requires that states, directly or through international organizations, assist in pro-tecting the marine environment by promoting scien-tific, educational, technical, or other programs. Training of personnel, participation in relevant inter-national programs, supply of necessary equipment and facilities, enhancing capacity to manufacture equipment, and development of facilities for research, monitoring, education, and other programs are espe-cially noted. Appropriate assistance is also called for regarding preparation of environmental assessments.

Article 203 addresses the role of international organi-zations in preserving the marine environment and pre-scribes that developing states shall be granted preferential treatment in allocating funds and techni-cal assistance as well as in utilizing specialized ser-vices o,f these organizations. Although this provision has received little attention so far, it can be viewed as UNCLOS legitimizing GEF international water ac-tivities. GEF' s concept of special support for develop-ing states, in conjunction with existing treaties on sustainable development, raises environmental aid to those states to a new level, in that the relevant contri-butions by industrialized states are formally recog-

nized. In the international waters focal area, UNCLOS indirectiy anticipates this new quality of support.12

E. Negative Effect of Technology

Whereas Article 203 addresses the potential positive contribution of modem technology to preserving the marine environment, the convention also takes into account the possible negative impact of technology use. Article 196 unequivocally prescribes that states take all measures to avoid pollution "from the use of technologies."

In the same article, the harmful effects of intentional or accidental introduction of alien or new species into a particular part of the marine environment is envis-aged; states are called on to take every step to avoid such problems. The issue of ship ballast water and its exchange on the seas has raised questions in this context. Currently, International Maritime Organiza-tion (IMO) guidelines provide that such exchange should take place in the open ocean. An IMO Working Group is now attempting to coordinate relevant practi-cal issues with other international agencies with re-latedresponsibilities.

Other sections in the general provisions , of part XII deal with protecting territories and spaces beyond the jurisdiction and control of a polluting state. Thus, Article 194 requires that a state not cause damage by pollution to other states' environments or other areas beyond their sovereignty, such as the high seas or Antarctica. Also, Article 195 prescribes that states do not, in combating pollution, transfer damage or haz-ards from one area to another or transform one type of pollution to another. It further states that measures intended to preserve the environment must not inter-fere unjustifiably with legitimate activities carried out by other states.

F. Areas of Action

The general provisions of part xn also address dis-tinct areas of action in which measures to protect the marine environment are expected by the states con-cerned. Article 194, section 3, lists:

12 Issues of technical cooperation and the need for capacity building in marine science and management have recently been considered, among others, by the United Nations Development Programme, Intergovernmental Oceanographic Commission and International Maritime Organization; see U.N. Doc. NS0/713, beginning with para. 210. See also R. Pullin, H. Rosenthal, and J. Maclean, eds., Environment and Aquaculture in Developing Countries, Manila: International Center for Living Aquatic Resources Management (1993).

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• Release of toxic, harmful, or noxious substances from land-based sources from or through the atmo-sphere or by dumping

• Pollution from vessels

• Pollution from installations and devices used to exploit the seabed and subsoil

• Pollution from other installations and devices oper-ating in the marine environment.

The purposes of the relevant measures are indicated (Article 194, section 3) regarding the latter three cat-egories. They include prevention of accidents and dealing with emergencies, ensuring the safety of op-erations at sea, and regulating the design, construc-tion, equipment, and manning of the vessels and installations. No explicit reference is made to protec-tion of marine life. As to pollution from vessels, the prevention of intentional and unintentional discharges is also addressed.

Although these rules are contained in the general pro-visions and do not go beyond the areas and purposes of actions, another section (Articles 207-12) treats the same issues in greater detail from the point of view of required national legislation and its relationship to applicable international rules. The general approach of this section does not deal with or directly affect the· web of treaties that has been created in the past to protect the marine environment.' Article 237 states that UNCLOS provisions are without prejudice to such treaties, which must, however, be implemented to be consistent with UNCLOS rules.

Section 5 (Articles 207-12) contains the key provi-sions of UNCLOS concerning protection of the ma-rine environment. These rules deal with establishment of national rules to implement the environmental ob-jectives of the convention. They, in turn, cover pollu-tion from land-based sources, seabed activities, activities outside national jurisdiction, pollution through dumping from vessels, and pollution from the atmosphere.

Common Requirements for National Rules

For all these areas, the convention provides that states will establish rules, standards, and recommended practices and procedures to protect the marine envi-

10

ronment. These mechanisms are to be established on the basis of decisions by competent international or-ganizations or by diplomatic conferences, and shall be reexamined from time to time as needed. Clauses of this kind are included in the individual articles for the areas listed. For instance, the article on dumping (Ar-ticle 210, section 4) says that:

1. States shall adopt laws and regulations to prevent, reduce, and control pollution of the marine envi-ronment by dumping.

2. States shall take other measures that may be neces-sary to prevent, reduce, and control such pollution.

3. Such laws, regulations, and measures shall ensure that dumping is not carried out without the permis-sion of the competent authorities of states.

4. States, acting especially through competent inter-national organizations or diplomatic conferences, shall endeavor to establish global and regional rules, standards, arid recommended practices and procedures to prevent, reduce, and control such pollution. Such rules, standards, and recommended practices and procedures shall be reexamined from time to time as necessary.

5. Dumping within the territorial sea and the exclu-sive economic zone or onto the continental shelf shall not be carried out without the express prior approval of the coastal state, which has the right to permit, regulate, and control such dumping after due consideration of the matter with other states that, by reason of their geographical situation, may be adversely affected.

6. National laws, regulations, and measures shall be no less effective in preventing, reducing, and con-trolling such pollution than the global rules and standards.

Levels of Environmental Rules

The current system of treaties governing the marine environment exists on the following levels:

• U .N. Convention on the Law of the Sea

• Sectoral and technical conventions with global or regional validity adopted before 1994

• Sectoral and technical conventions with global or regional validity to be negotiated pursuant to the provisions of Article 207 ff. of UN CLOS

• National laws that exist within the framework of UN CLOS.

The specific relevance of UNCLOS for GEF pur-poses arising from this configuration will be subse-quently addressed.

Source-Based Categories in UNCLOS

The ge~eral pattern of regulation, apart from new international rules to be established, shall now be reviewed. The major part of the provisions of the six areas covered in Articles 207-12 fall into the follow-ing categories. States are called on to adopt laws and regulations to prevent, reduce, and control manne pollution:

• From land-based sources (Article 207)

• From seabed activities and artificial islands, instal-lations, and structures in their exclusive economic zones and their continental shelves (Article 208), both for their activities in the seabed area and ocean floor beyond national jurisdiction (Article 209) and pollution by dumping (Article 210)

• From vessels (Article 211)

• Through the atmosphere (Article 212).

In most of these areas, states shall take "other mea-sures as may be necessary" to protect the environ-ment, that is, measures other than laws and regulations.

Existing international rules and standards must not be ignored in drafting and implementing national laws. Regarding pollution from land-based resources and pollution from or through the atmosphere, they "must

. be taken into account." Regarding activities in the seabed area and ocean floor beyond national jurisdic-tion, and pollution by dumping and by vessels, na-tional laws must not be less effective than existing international rules. Also, states are called to harmo-nize their policies in this context "at the appropriate regional level" regarding pollution from land-based sources and seabed activities.

Followipg. this review of common elements of the areas of marine protection to be covered on the na-tional level, the peculiar aspects of UNCLOS provi-sions in individual areas will now be reviewed. In this context, brief references will be made to relevant, existing technical and regional conventions.

Pollution from Land-Based Sources (Article 207)

Pollution from land-based sources raises by far the most important problems for the marine environment. By the year 2000, up .to an estimated 75 percent of the world's population will live within 60 kilometers of a coast. According to a widely cited estimate of the U.N. Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP), more than 70 percent of marine pollution stems from land-based sources, whereas only about 10 percent each comes from vessels and dumping. The reason for this deplorable excessive proportion of land-based sources in degrading international waters, mainly coastal waters, is that, in the past few decades, the sea has come to be regarded as the most suitable sewer for entire or large parts of nations. Where more environ-mentally protective means of disposal have been missing, the sea has borne the burden.

Typically, it is difficult or impossible to attribute any particular substance or its effects to a specific source. Land-based marine pollution, therefore, is now viewed as a national problem, rather than an issue of regulating individual conduct, although political will and means to establish national strategies addressing this key prob-lem for international waters have been lacking. The sea is, therefore, treated as an infinite resource capable of serving as a collective dumping ground. Sewage, in-dustrial wastewaters, and persistent organic pollutants pose the most pressing problems.

Strategies concerning land-based activities must reflect the indivisibility of the marine environment. Nearly every substance released into the biosphere is carried seaward. The connection between the marine environ-ment and freshwater drainage basins must be taken into account, together with the fact that the world's coast-lines are under increasing pressure by human settle-ment.

• UN CLOS recognizes that land-based sources ·in-clude not just rivers, but also estuaries, pipelines, and outfall structures (see Article 207, section 1).

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• As early as 1985, the United Nations Environmen-tal Programme (UNEP) drafted the Montreal Guidelines for the Protection of the Marine Envi-ronment against Pollution from Land-Based Sources. This marked the first attempt to address the issue on a global level, even though its primary purpose was to assist governments in developing bilateral and multilateral agreements and drafting national legislation. The Montreal guidelines, how-ever, did not include compliance requirements and did not have the effects expected.

• The concept of integrated management of coastal areas has received strong emphasis in Agenda 21.

• Various regional agreements regulate land-based pollution. Both the Helsinki Convention on the Baltic Sea13 (renegotiated in 1992) and the Paris Convention on the Northeast Atlantic, 14 which were concluded in 1974, addressed the issue. In 1980 the Athens Protocol to the Barcelona Con-vention for the Protection of the Mediterranean 15

followed. In 1992 the Bucharest Convention on the Black Sea, 16 containing a protocol on protection against pollution from land-based sources, was concluded. The Paris Convention for the Protection of the Marine Environment of the Northeast Atlan-tic of the same year was renegotiated and will replace its predecessor of 1974. Four of its annexes

deal with pollution from land-based sources. In 1983 a protocol to the Lima Convention was adopted to protect the Southeast Pacific against pollution from land-based sources.17 As early as 1976, the European Economic Community had is-sued a directive to prevent land-based pollution.18

The first generation of these conventions follows a similar pattern, with certain exceptions for the stricter European directive. As a rule, the conventions provide a list of highly harmful substances that must be elimi-nated due to their toxic effect, persistence, or tendency to accumulate in living organisms. Harmful sub-stances that do not share these negative qualities are less severely restricted. The parties try to harmonize their policies on effluent treatment and water quality. These agreements also pay attention to sampling, monitoring, and analysis of discharges and coastal water quality. The conventions regulate not only ocean waters but also the fresh waters affecting them.

Generally, the regional conventions provide more protection than the abstract rules of UN CLOS, which do not address operational measures in a narrow sense. A new generation of regional Conventions was initiated for the Northeast Atlantic and Baltic Sea area in 1992 in the months following the Rio conference~ 19

At least in their general concepts and terminology, they are inspired by the call of sustainable develop-

13 Convention on the Protection of the Marine Environment of the Baltic Sea Area of March 22, 1974 (ILM 13 [1974], pp. 546-90). See Platzoder and Verlaan, eds., The Baltic Sea: New Developments in National Policies and International Cooperation, Boston: Martinus Nijhoff (1996).

14 Convention for the Prevention of Marine Pollution from Land-Based Sources of June 4, 1974 (ILM 13 [1974], pp. 352-76).

15 Protocol for the Protection of the Mediterranean Sea Against Pollution from Land-Based Sources of May 17, 1980 (ILM 19 [1980], pp. 869-78).

16 Convention on the Protection of the Black Sea Against Pollution of April 21, 1992 (ILM 32 [1993], pp. 1110-33). 17 Protocol for the Protection of the South-East Pacific Against Pollution from Land-Based Sources of July 23, 1983

(SMT 2:139).

18 See R. M'Gonigle, "Developing Sustainability and the Emerging Norms of International Law: The Case of Land-Based Pollution Control," Canadian Yearbook of International Law 28 (1990), p. 169; A. Boyle, "Land-Based Sources of Marine Pollution," Marine Policy 16 (1992), p. 20; A. Nollkaemper, "Land-Based Pollution (Rivers/Air)," Yearbook of International Environmental Law 4 (1993), p. 161; S. Vallejo, "New Structures for Decisionmaking in Integrated Ocean Policy" in P. Payoyo, ed., Ocean Governance: Development of the Seas, New York: United Nations University Press (1994), p. 73.

19 See E. Hey, T. Ijlstra, and A. N ollkaemper, ''The 1992 Paris Convention for the Protection of the Marine Environment of the Northeast Atlantic," International Journal of Marine and Coastal Law 8 (1993), p.1; J. Hilf, ''The Convention for Protection of the Marine Environment of the Northeast Atlantic: New Approaches to an Old Problem?", Heidelberg Journal of International Law 55 (1995), p. 581; P. Ehlers, "Das neue Helsinki-Ubereinkommen: Bin weiterer Schritt zum Schutz der Ostsee," Natur und Recht 15 (1993), p. 202; A. Gosseries, "Marine Pollution in the North Sea: The Position in International Law," European Environmental Law Review 3 (2) (1994), p. 53.

12

ment, which was central to the Rio conferenc'?. The 1992 Paris Convention (Northeast Atlantic) requires that human activities shall be conducted in such a manner "that the marine ecosystem will continue to sustain the legitimate uses of the sea and will continue to meet the needs of the present and the future genera-tions." In this spirit, the convention is intended to prevent and eliminate marine pollution. As an expres-sion of this novel approach, the convention obliges the parties to apply the precautionary principle and the "polluter pays" principle (Article 2 [2] [a] and [b]).20

The precautionary principle is expressed in the re-quirement that parties must not interfere with the marine environment, even if no conclusive evidence exists of a causal relationship between the inputs and the harmful effect. Also, states shall adopt preventive programs and measures relying on the "best available techniques" and "best environmental practices" (Ar-ticle 2, paragraph 3, and appendix 1). The parties are obliged .to restore adversely affected areas. The con-vention is also noteworthy in view of its new ap-proach to procedures and institutions. Third persons are, thus, granted access to information (Article 9). Commissions may take binding decisions, not just state parties (Article 13), and a specific procedure in case of noncompliance has been enacted, based on a reporting system (Articles 22 and 23).

The 1992 Helsinki Convention contains a number of important features parallel to the Paris Convention, including references to the precautionary principle, environmental impact assessments, and best environ-mental practices. Moreover, the preamble is directed to ecological restoration "ensuring the possibility of self-regeneration of the marine environment and preservation of its ecological balance." Measures are envisaged in Article 15 "with respect to the Baltic Sea Area and its coastal ecosystems influenced by the Baltic Sea to conserve natural habitats and biological diversity and protect ecological processes. Such mea-. sures shall also be taken to ensure the sustainable use of natural resources within the Baltic Sea." The em-phasis on nature conservation and the linkage be-

tween ec9systems in the sea and coastal areas is made more explicit.

The Barcelona Convention was rewritten in 1995 and is now called the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean.21 This convention is the first marine environmental instrument to integrate land and sea issues. The earlier specific e~clusion of internal wa-ters has been deleted. The Barcelona Convention in its amended version treats land-based sources to-gether with atmospheric sources of marine pollution and also includes underground water courses and run-off from indirect sources.

In its 1995 version, the Barcelona Convention mirrors a shift away from focusing on "end-of-pipe" mea-sures to identifying land-based sources of pollution as one of the prominent targets of environmental activi-ties. The original text obliged the parties to merely "take all appropriate measures to prevent, abate, and combat" pollution caused by land-based sources. The amended Article 8 requires them not only to eliminate pollution to the fullest extent possible but also "draw up and implement plans for the reduction and phasing out of substances that are toxic, persistent, and liable to bioaccumulate arising from land-based sources." Consistent with this new emphasis on reducing pollu-tion at its source, in the new Article 4, the parties pledge to apply the polluter-pays principle, in which the polluter bears the costs of pollution prevention, control, and reduction measures.

A Global Program of Action for the Protection of the Marine Environment from Land-based Activities, adopted in Washington on November 3, 1995,22 calls for actions to be taken at the national, regional, and global levels:

• At the national level, development of integrated plans for identifying and assessing problem areas (sewage, persistent organic pollutants, heavy met-als, and physical alteration of habitats); ecosys-tems of concern, including watersheds, coral reefs, mangroves, and small islands; and sources of con-tamination and other forms of degradation.

20 For the "polluter pays" principle, see S. Gaines, "The Polluter Pays Principle: From Economic Equity to Environmental Ethos," Texas International Law Journal 26 (1991), p. 463.

21 See UNEP Doc. (OCA): MED JG 617. 22 Reprinted in UN Doc. A/51/116, April 16, 1996.

13

• At the regional level, more active participation in existing regional international conventions and programs of action. States are called on to develop, adopt, and implement new comprehensive pro-grams on land-based activities and establish and strengthen regional networks for information man-agement and capacity building.

• At the global level, regular reviews of the state of the world's marine and freshwater environment. A specific recommendation concerns development of a clearinghouse, through which decisionmakers can receive up-to-date information, practical expe-rience, and scientific and technical advice and ex-pertise.

The program recommends approaches for each of the land-based sources and activities leading to degrada-tion of the marine environment, falling under nine categories: sewage, persistent organic pollutants, ra-dioactive substances, heavy metals, oils, nutrients, sediment mobilisation, litter, and physical alterations. Remarkably, the program contains a specific section with recommendations for actions by GEF (section 5B). GEF is invited to build on the work that will be undertaken to implement this program and to fund the agreed incremental costs of activities consistent with GEF operational strategy. It is also invited to consider the following:

• The unity of the marine environment

• The links of land-based activities with biological diversity and climate change

• The international significance of transboundary pollution

'" Some types of pollution that may affect the waters of more than one state

• The importance of clearly defined and targeted re-search and monitoring within projects.

The existence of the regional conventions mentioned and lack of a global agreement on land-based marine pollution has led to a long-standing debate on the desirability of a global convention. Article 207, sec-tion 1, of UNCLOS requires that states "shall en-

23 UNDoc.AfSl/116,April 16, 1996,p.17.

14

deavor to establish global and regional rules," stating that regional features shall be taken into account and "the economic capacity of developing states and their need for economic development" be considered. No-tably, even the 1992 Paris Convention, to which only industrialized states are parties, allows for regional differentiation. A widespread sense currently exists that environmental purposes will best be served by regional arrangements tailored to the specific situa-tion and needs of the countries affected.

The Washington Declaration notes "major differences among the different regions of the world and its states, which they comprise in terms of environmental, eco-nomic, and social conditions, and development, which will lead to different judgments on priorities in ad-dressing problems related to the degradation of the marine environment by land-based activities"23 It is doubtful, however, whether the lack of a globally accepted minimum standard for land-based pollution that results from a patchwork of regional treaties is suitable in the long run to protect the marine environ-ment adequately.

Pollution by Dumping

UNCLOS calls on the international community to · negotiate global and regional rules against dumping. States are required to enact regulations that are no less effective. Dumping within a territorial sea and exclu-sive economic zone is subject to the prior approval of the coastal state. The convention states that, within these states, competent authorities must in any case grant permission.

From an environmental point of view, the substance of UNCLOS is characterized by its deference to the standards and rules of the coastal state, which is not limited by the text of the convention but by rules adopted previously or to be agreed on in the future.

The emphasis on prior approval by the coastal state reflects a deliberate decision during the Law of the Sea Conference. Under earlier rules of international law, this power of the coastal state was limited to territorial and internal waters.

The 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters (London Convention) must be seen to be the current key international instrument for the direct control of

ocean dumping. The convention prohibits the dump-ing of certain substances listed in annex I (the "black list"), ·requires special care for dumping of substances in annex II (the "grey list"), and allows a prior general permit for all other wastes. The agreement has been amended several times.24

As to dumping from ships, the International Conven-tion· for the Prevention of Pollution by Ships (MARPOL) Convention (1972, as amended) has in-troduced increasingly stricter standards. Phase-out programs for individual substances have been re-placed by prohibitions. Ocean disposal of industrial waters as well as incineration of the same wastes and sewage sludge was, thus, banned. Special attention has been paid to radioactive waste.

Despite these improvements, many obs.ervers still be-lieve that a more fundamental change is needed to protect the environment. The proponents of this view-point call for an approach that would in principle prohibit dumping in the oceans and allow it only for substances precisely listed and described in the con-vention, thus, replacing the black and grey list with a "reverse list." A similar concept was introduced in 1973 in the Helsinki Convention (see below).

Developing states have expressed concern in recent years regarding their capabilities to respond to higher international standards, particularly for industrial wastes. Within the regime of the London Convention, the attendant issues have been studied, including the key components of a technical co-operation program. In this context, establishment of a clearinghouse is

under discussion, as well as provision of services to establish modern national legal waste regimes.25

An agreement (February 1976) is currently in force regarding dumping in the Mediterranean, and the 1992 conventions on the Northeast Atlantic, Baltic Sea, and Black Sea also contain applicable provisions. As a result of UNEP' s program of action to protect regional seas, the following regional conventions also address the issue:

• Kuwait Agreement of 1978 concerning the Persian Gulf 26

• Abidjan Convention of 1981 concerning West and Central Africa27

• Lima Convention of 1982 concerning the Southeast Pacific28

• J eddah Convention of 1982 concerning the Red Sea and the Gulf of Aden29

• Cartagena de Indias Convention of 1983 concern-ing the Caribbean Region30

• Nairobi Convention of 1985 concerning East Africa31

In addition, the states in the South Pacific adopted the Protocol for the Prevention of Pollution of the South Pacific Region by Dumping in 1986.32

Except for the Helsinki Convention of 1974, the Lon-don Convention with global application has served as

24· For details and the ongoing discussion on the convention, see UN Doc. A/49/631, beginning with para. 79; A/50/173, beginning with para. 106.

25 See UN Doc. A/49/631, beginning with para. 87. 26 Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution of April 24, 1978 (Article V)

(IlM 17 [1978], pp. 511-26).Also, see S. Mahmoudi, "Legal Protection of the Persian Gulf's Marine Environment, Marine Policy21(1) (1997).

27 Convention for Cooperation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region of 1981 (Article 6) (ILM 20 [1981], pp. 746-56).

28. ConventionfortheProtectionoftheMarineEnvironmentandCoastalAreaoftheSouth-EastPacificofNovember 12, 1981 (SMf2:130).

29 Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment of February 14, 1982 (Article

V) (ILM 22 [1983], p. 219).

30 Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region of March

24, 1983 (Article 6) (ILM 22 [1983], pp. 227-38).

31 Convention for the Protection, Management, and Development of the Marine and Coastal Environment of the Eastern

African Region of June 21, 1985 (Article 6) (SMT 2:324). 32 Protocol for the Prevention of Pollution of the South Pacific Region by Dumping, Noumea, November 25, 1986 (SMT

2:381).

15

a model for agreements subsequently adopted. In those texts, dumping refers to "any deliberate dis-charge at sea of wastes or other matter from vessels or aircraft" but not to wastes or matters incidental to the normal operation of vessels. Generally, the rules in the conventions are based on the "three lists" approach prescribed by the London Convention.

The Helsinki Convention of 1974 contrasts with the other conventions due to its much stricter approach. The fundamental rule applied prohibits all dumping. Exceptions are only allowed for a few categories spe-cifically listed, allowing mainly for the dumping of dredging mud that does not contain certain designated dangerous and harmful substances.

Dumping on the High Seas

The previous considerations apply to maritime zones, on which the coastal state exercises jurisdiction. If dumping takes place on the high seas, it is only the flag state of the ship concerned that has the power to exercise jurisdiction. Here, Article 210 ofUNCLOS is applicable because the requirement of states to adopt relevant laws applies to dumping on the high seas as well.

Pollution by Vessels

Before the international community had become con-cerned about marine dumping and land-based pollu-tion, it was concerned about pollution caused by oil spills resulting from accidents. A web of agreements intended to combat accompanying problems first ad-dressed punishment of unlawful discharges and then compensation of victims. The infamous stranding of the Torrey Cannon in 1967 and the accident of the Amoco Cadiz in 1978 in turn led to reconsideration of the adequacy of these approaches. In 1990 GESAMP estimated about 12 percent of all marine pollution came from vessels.

Agreements on preventing marine oil pollution were adopted in 1962, 1969, and 1971. These arrangements were consolidated and strengthened in 1973 with adoption of the MARPOL convention. In an amended version with a protocol on substantive rules of 1978, this treaty still forms the main pillar of policy in this

area. It covers any discharge from a ship, irrespective of its cause and includes any escape, disposal, leaking, pumping, emitting, or emptying. In a number of spe-cial areas, any discharge except clean ballast is pro-hibited (in the Mediterranean, Baltic, Black Sea, Red Sea, and Persian Gulf). Special oil-monitoring sys-tems on new ships are required. MARPOL not only addresses oil pollution, as its predecessor did, but also any substance that "if introduced into the sea is liable to create hazards to human health, to harm living resources and marine life, to damage amenities, or to interfere with other legitimate uses of the sea . . . " Annex II covers noxious liquid substances in bulk that are classified into four categories subject to different treatment. 33

UNCLOS extensively covers issues concerning vessel pollution by defining the powers of the flag state, the coastal state concerned (jurisdiction up to 200 miles in the exclusive economic zone), and the state whose port a vessel uses. All of section 6 (Articles 213-22) is devoted to issues of enforcement, and several of the rules apply to problems arising out of pollution by vessels. In general, therefore, the traditional primacy of flag state jurisdiction has been preserved (for de-tails, see Articles 94 and 217 of UNCLOS), favoring interests of free navigation over coastal state interests. Article 211 lengthily addresses general issues in this regard; however, its main provisions do not relate to substantive environmental standards but to competing interests of free navigation and environmental regula-tion.

The convention is silent on future regulation of pollution by vessels. Rather, it calls on the international commu-nity to establish standards and rules and requires each state to adopt laws and regulations for vessels flying their flag or registered with them. The strengthening of the interests of coastal states would allow introduction of stricter environmental standards.34

Pollution From or Through the Atmosphere

Again, UNCLOS refrains from establishing any sub-stantive standards. Along the lines generally fol-lowed, it prescribes that individual states adopt rules to protect the marine environment from atmospheric pollution and calls on the international community to

33 On MARPOL, see G. Peet, ''The MARPOL Convention: Implementation and Effectiveness," International Journal of Estuarine and Coastal Law [vol. 7, no. 4] (1992), p. 277.

34 For details, see D. Bodansky, "Protecting the Maritime Environment from Vessel Source Pollution: UNCLOS ill and Beyond," Ecology Law Quarterly 18 (1991), p. 719.

16

establish global and regional rules (Article 212). Re-markably enough, states are not required to establish rules in this area that are at least as effective as inter-national rules; states are only asked to take into ac-count international arrangements.

No multilateral convention has so far been negotiated specifically on the subject of pollution from or through the atmosphere. A number of regional con-ventions, however, such as the ones on the Northeast Atlantic and the Baltic, are also applicable to airborne pollution.

Pollution from Activities in the High Seas

The convention is restricted in this part to general features, that is, provision for establishment of inter-national and national rules to protect the marine envi-ronment (Article 209). No specifications are included.

The Protection of Marine Living Resources

No appropriate regime for protecting marine life forms has been established either in the Convention on Biological Diversity (CBD) or in UNCLOS; how-ever, at the second meeting of the Conference of the Parties, held in Jakarta in November 1995, the parties to CBD agreed on a program of action for implement-ing the convention with respect to marine and coastal biodiversity ("Jakarta Mandate on Marine and Coastal Biodiversity"). The most significant part of this man-date is recommendation I/8, as formulated by the first meeting of the Subsidiary Body on Science, Technical and Technological Advice (SBSTIA).35 This recom-

mendation focuses on (a) integrated marine and coastal area management, (b) marine and coastal pro-tected areas, ( c) sustainable use of marine and coastal living resources, ( d) mariculture, and ( e) alien species (paragraphs 10-19). It remains to be seen whether the concerns for protecting marine living resources will also be addressed in a UNCLOS protocol. 36 In any case, current rules have failed to provide adequate protection. 37 _

Most of the world's fisheries are overexploited. The figures for marine fishing indicate that the catch has dropped in the past decade due to a decreasing number of fish. According to a Food and Agriculture Organi-zation (FAO) report from 1995, more than 69 percent of the world's marine _stocks were either fully ex-ploited, overfished, depleted, or in the process of re-building from overfishing and, therefore, in need of urgent corrective conservation and management mea-sures. 38

First, in the North Atlantic but also in the North Pacific and tropical waters, innovations in fishery technology have allowed large, often subsidized fishery fleets from industrialized nations to seriously deplete previously rich stocks of commercially at-tractive species. This trend, if it continues, would have enormous social and economic consequences. This is true not just for the fishing industry, but also for rapidly growing communities living in coastal areas of developing states whose diet and livelihoods directly depend on fishing. Ninety-five percent of the total yield of the world's oceans comes from the exclusive economic zones where fishing is regulated

35 Doc. UNEP/CBD/COP/2/5, September 4-8, 1995, pp. 34-43. 36 See UN Doc. A/50fi13 and the remarks by M. Hayashi, L~w of the Sea Institute, 30th Annual Conference, May 19-22, 1996. 37 See T. Agorau and A. Bergin, "Ocean Governance in the Western Pacific: Purse Seine Fishery, the Palau Arrangement,"

Marine Policy 21(2) (1997), p. 173; Deutscher Bundestag, Lage der Fischerei und Schutz vor den Folgen der Uberfischung der Meere, Bonn (1997); W. Dubbink: and M. van Vliet, "Market Regulation Versus Comanagement? T\vo Perspectives on Regulating Fisheries Compared," Marine Policy 20(6) (1996), p. 499; European Parliament Report on the proposal for a Council Decision concerning the objectives and detailed rules for restructuring the Community fisheries sector for the period from 1 January 1997 to 31 December 2002 with a view to achieving a balance on a sustainable basis between resources and their exploitation, Strasbourg:

European Parliament (1996); G. Kesteven, "MSY Revisited: A Realistic Approach to Fisheries Management and Administration;' Marine Policy 21(1) (1997), p. 73; S. Mascher, ''Taking a Precautionary Approach: Fisheries Management in New Zealand,"

Environmental and Planning Law Journal 14(1), p. 70, (1997): Analysis of Laws Addressing Destructive Fishing Practices in the

Asia/Pacific Region (Sodium Cyanide/Live Reef Fish Trade) Honolulu: The Nature Conservancy, Pacific Region (1996); R. Pomeroy,

ed., Community Management and Common Property of Coastal Fisheries in Asia and the Pacific: Concepts, Methods, and

Experiences, Manila: International Center for Living Aquatic Resources Management (1994); A. Rieser, "International Fisheries Law, Overfishing and Marine Biodiversity," Georgetown International Environmental Law Review 9(2), p. 251, (1997).

38 Food and Agriculture Organization, The State of the World Fisheries, Rome (1995), p. 3.

17

and exercised primarily by the coastal states them-selves.

Between 1950 and 1989, the marine harvest increased nearly fivefold to a high of 86 million metric tons. In 1993, however, it had dropped to 84 million metric tons. The fact that a record high for total global fish harvest was achieved that year was due to the rapid growth of aquaculture, which now accounts for nearly 16 percent of the total harvest and remains the only consistent area of growth.

Fishing enterprises directly or indirectly employ some 200 million people worldwide. An estimated 915 mil-lion people, mostly in developing countries, depend on fish as their primary source of protein. 39

The 1996 World Resources report points out that strong demand and government subsidies will keep fishing enterprises profitable even after the resource base begins to erode. As long as the fish caught cover operating costs, no economic incentive will exist to stop fishing once a vessel is built.40

Today, the global fishing fleet is at least 30 percent larger than it needs to be to fully harvest the resources available. Nevertheless, national governments gener-ally try to make up for the deficit by financing the world fleet through subsidies of various kinds. These subsidies have been a key factor in the current decline in fisheries.

Remarkably, part XII of UNCLOS, which deals with the marine environment, does not itself address pro-tection of living resources. Instead, the rules con-cerned are contained in those parts that deal with the allocation of rights and obligations on the high seas, on the continental shelf, and in exclusive economic zones. The dominant mode of thinking expressed in

the convention, thus, reflects establishment of legal categories and zones of jurisdiction rather than an approach embodying a comprehensive view of marine life.41

As to the high seas, the convention's section on con-serving and managing living resotirces of the high seas. (Articles 116-20) says that all states have the right to have their nationals engage in fishing, subject to certain qualifications. Generally, all states are called on to cooperate in conserving living resources (Articles 117-18). The convention emphasizes a re-quirement for negotiations among states whose na-tionals exploit the same resources or areas to establish subregional or regional fisheries organizations.

From the environmental viewpoint, the main provi-sion is Article 119, which determines the allowable catch. Its key objective is to attain levels that "can produce the maximum sustainable yield." Populations of harvested species must be maintained or restored to this effect, and the measures must be taken on the best scientific evidence available. The convention adds, however, that the objective will be qualified "by rel-evant environmental and economic factors, including the special requirements of developing states," with-out detailing the nature and purpose of such a qualifi-cation. Other factors will be taken into account as well, namely fishing patterns, interdependence of stocks, and any general recommended international minimum standards, whether subregional, regional, or global.42

Assessment and evaluation of the rules in Article 119 from an environmental point of view is not easy, because the objective and list of additional criteria to be taken into account cannot be captured with any precision. It is clear, however, that protection ofliving resources is in itself only one aim; it introduces no

39 World Resources Institute, United Nations Environment Programme, United Nations Development Programme, and the World Bank, World Resources 1996-97, New York: Oxford University Press (1996), p. 295.

40 WRI, World Resources 1996-97, p. 297. 41 For details, see J. A. de Yturriaga, The International Regime of Fisheries, from UNCLOS 1982 to the Presential Sea

(1997); W. Burke, The New International Law of Fisheries: UNCLOS 1982 and Beyond, Cary; N. C. Oxford University Press (1994 ); B. K wiatkowska, "The High Seas of Fisheries Regime: at a Point of No Return?", The International Journal of Marine and Coastal Law 8 (1993), p. 327.

42 A more careful approach to fishing has been established in the Convention on the Conservation of Antarctic Marine Living Resources (1980). The 1995 Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks, in practice more important, stands for a strong effort to adopt a sustainable approach. See also G. J. Hewison, "The Precautionary Approach to Fishieries Management: An Environmental Perspective," International Journal of Marine and Coastal Law 11 (1996), p. 301.

18

special mechanism to ensure that a long-term perspec-tive governs decisionmaking, which is subject to po-litical .considerations that may or may not properly reflect environmental concerns.

Far more important, in practice, than the rules on the high seas are those that govern fishing in the exclusive economic zones contained in part V of the convention.

The basic rule, found in Article 56, confers on coastal states "sovereign rights for the purpose of exploring and exploiting, conserving, and managing the natural resources, living or nonliving ... " Coastal states, therefore, have the power to determine the allowable catch of living resources (Article 61, section 1). In doing so, these states shall ensure, through proper conservation and management measures, that overexploitation does not endanger living resources. The operational objective again lies in production of the maximum sustainable yield and has the same qualifications as those listed for the high seas (see Article 61 ). Environmental evaluation of the rules for fishing in the exclusive economic zone must in prin-ciple be the same as for those on the high seas, except that decisionmaking required under Article 61 and Article 194, section 5, for the exclusive economic zone on allowable catch lies unilaterally with coastal states·and not with the international community.43

In Article 194, section 5, UNCLOS contains a some-what vague obligation that coastal states protect sensi-tive areas of the environment to create or restore favorable living conditions for fish stocks. This provi-sion notes that measures taken to protect and preserve the marine environment also include "those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened, or endan-gered ·species and other forms of marine life." No

monitoring of the management of coastal states, how-ever, has been established. The obligation to report relates only to scientific information, catch and fish-ing efforts, and other data relevant for conservation purposes. No obligation exists to report on actions taken for management and conservation.

In areas under national jurisdiction, the need exists to improve information systems on resources, environ-ment, and fisheries; capabilities in fisheries research and management; general economic status of fisher-ies; protection of endangered species; and approaches to the management of small-scale fisheries.44

Whether a single coastal state will exercise its rights in a more exploitation-oriented manner or more con-serving fashion than a group of states cannot be judged in the abstract. Uncertainties regarding the intentions behind protection and conservation, how-ever, are clearly increased even more by the legal setting of Article 61 than by those uncertainties that clearly exist in the context for the high seas. The key problem remains whether or not it is advisable or sustainable to aim for the maximum sustainable yield or whether the protection of fish requires adoption of a different objective. The latter would more strongly emphasize safer biologically oriented standards, re-flecting the continued high uncertainty about the cur-rent state of living resources in the seas.45

An agreement on implementing the provisions of UNCLOS relating to the conservation and manage-ment of straddling fish stocks and highly migratory fish stocks was adopted on August 4, 1995.46

Given current international concern about overfishing and the multidimensional rules and objectives of UNCLOS, FAO undertook two major initiatives to

43 The General Assembly has voiced deep concern about the detrimental impact of unauthorised fishing in areas under national jurisdiction and reaffirmed the rights and duties of coastal states to ensure conservation and management measures with respect to living resources in areas under their national jurisdiction (Resolution UN Doc. A/RES/50/25, January 4, 1996). See also para. 36( e) of the Program for the Further Implementation of Agenda 21.

44 See UN Doc. E/CN.17/1996/3/Add.l, p. 29. See also R. Wolfrum, ''Enforcing Environmental Standards," p. 1010 f., and in the same book, U. Beyerlin, "Concept of Sustainable Development," p. 549 ff. A more positive view is taken by Charney,

"Marine Environment and the United Nations Convention on the Law of the Sea," p. 901. 45 See also R. Wolfrum, ''The Protection of the Marine Environment After the Rio Conference: Progress or Stalemate?" in

U. Beyerlin and others, eds., Recht zwischen Umbruch und Bewahrung, Festschrift fiir R. Bernhard, Berlin: Springer Press (1995)

p.1009f. 46 See UN Doc. A/501550; J.-P. Levy and G. G. Schram, United Nations Conference on Straddling Fish Stocks and Highly

Migratory Fish Stocks, Selected Documents (1996); J. Van Dyke, "The Straddling and Migratory Stocks Agreement and the Pacific," International Journal of Marine and Coastal Law 11 (3) (1996), p. 406; 0. Thebaud, "Trans boundary Marine Fisheries Management. Recent Developments and Elements of Analysis," Marine Policy 21(3) (1997), p. 237.

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protect existing stocks. First, an PAO Conference in November 1995 approved the PAO Code of Conduct for Responsible Fisheries. This contains voluntary guidelines and international standards for responsible practices to ensure the effective conservation, man-agement, and development of marine resources in harmony with the ecosystem and biodiversity. The code could be applied in the fnµnework of UNCLOS, due to the flexibility built into the various guiding principles.47

A second initiative of FAO, undertaken in 1993, in-volves observation of existing standards and issues and problems that have arisen in the high seas due to flagging or reflagging of vessels to avoid conservation measures. To this end, FAO adopted in November 1993 the Agreement to Promote Compliance with International Conservation and Management Mea-sures by Fishing Vessels on the High Seas.

For the Mediterranean, a diplomatic conference held in 1994 recommended a fishery regime based on the best available scientific advice and most beneficial existing practices to ensure effective protection of fishery resources and their rational exploitation under the most favorable circumstances.48

It is not possible here to review in any detail the series of arrangements on specific species of fish or regional fisheries. A report drawn up by the U.N. secretary-general in 199449 summarizes more recent develop-ments on the North Pacific, South Pacific, Indian Ocean, Atlantic Ocean, North Atlantic, South Atlan-tic, and Black Sea. The general tenor of the report is that states have become increasingly concerned about the development of marine pollution in general and reduction of fish stocks in particular. It is, thus, not surprising that the yardstick emerging for fisheries management is no longer consistently the maximum yield but a more conservation-oriented formula. Both

· the South Pacific Forum and the South Atlantic states have, thus, declared that they intend to base their fishery management on the precautionary principle. Their conclusion seems to be that UNCLOS may al-low too much exploitation and many states use or abuse the vagueness and flexibility of the rules.

PAO has warned against continuing the current ap-proach to fishing - seeking the highest possible catch - and urged introduction of a precautionary approach in order to strengthen the concept of sustainable yield. This is based on the view that the state of marine resources has not been well researched and, therefore, safer biological thresholds that are more likely to sus-tain fish stocks should be adopted. The FAO effort to adopt a "Code of Conduct for Responsible Fisheries" reflects this concern. so

The 1996-97 World Resources report pointed out that future strategies to preserve fish stocks will require painful economic and social adjustments, but the costs of failing to manage global fisheries sustainably will be far higher.51

G. Global and Regional Cooperation

The need to achieve "a new level of integration and operational competence in the work of the United Nations system and close collaboration among the Bretton Woods institutions, the United Nations De-velopment Program (UNDP), and the specialized agencies" has been recognized by the U.N. secretary-general in the context of Agenda 21 and UNCLOS.52

Current activities regarding the marine environment are undertaken by IMO, the World Meteorological Organization (WMO), the U.N. Educational, Scien-tific, and Cultural Organization (UNESCO) and its Intergovernmental Oceanographic Commission (IOC), UNEP, PAO, UNDP, the World Bank, and others.53

47 The code sets out principles and standards of behaviour for responsible fishing, directed at the effective conservation, management, and development of aquatic living resources, with due respect for the ecosystem and biodiversity. It recognises the economic, social, environmental, and cultural importance of fisheries and the interests of the fishing sector. The code is voluntary and global in scope. See W. Edeson, "The Code of Conduct for Responsible Fisheries: An Introduction," The International Journal of Marine and Coastal Law 11(2) (1996), p. 233.

48 See UN Doc. A/50/713, para. 187. 49 A/49/631 of November 16, 1994, p. 40 ff. 50 See UN Doc. A/49/631, paras. 134 and 149. 51 WRI, World Resources 1996-97, p. 296. 52 See UN Doc. A/49/631, para. 57. 53 See UN Doc. A/50/713, beginning with para. 66.

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In addition to the many clauses encouraging interna-tional cooperation in specifically mentioned areas, the convention contains a "catch-all cooperation clause" (Article 197), which draws attention to regional fea-tures. In this context, the requirements for notification of imminent or actual damage and contingency plans against pollution are set forth. International studies, research programs, and exchange of data about marine pollution are encouraged. Based on information and data thus acquired, the states are called on to establish appropriate scientific criteria for formulating and elaborating rules, standards, and procedures for pro-tecting the marine environment.

In recent years, regional integration and coordination has become much stronger.s4 This is especially true for enclosed and semienclosed seas, for which Article 123 of UN CLOS explicitly encourages states to coor-dinate marine management and protection. Small is-land states have especially been active in strengthening their capabilities through regional pro-grams. This is now reflected in a Program of Action for Sustainable Development of Small Island Devel-oping States.ss

Nearly the full range of marine environmental con-cerns is considered appropriate for regional coopera~ ti.on. Recent and ongoing reviews of regional marine pollution have indicated that the results of regional cooperation must be improved to protect the marine environment effectively. Regarding the Mediterra-nean, for instance, it was found in 1993 that the collec-tion of data on land-based sources and waste management generally was "very slow and fragmen-tary" and compliance with existing obligations was weak. A study on the Black Sea pointed to the acute need for development of more efficient strategies to protect and restore living resources and biodiversity. The creation of protected areas and integrated coastal area management is also encouraged. The Southeast Asian coastal regions have also received broad public attention due to their significance for biodiversity and their large ecosystems, which are threatened by popu-lation growth, industrialization, and shipping activi-

ties; UNEP, IMO, and the Geosphere-Biosphere Pro-gram have emphasized problems in this region.s6

H. Promotion of Science

Within the section on global and regional cooperation, the convention emphasizes the central role of scien-tific knowledge for formulating marine environmental rules. Regarding pollution of the marine environment, Article 200 dictates promotion of studies, conduct of scientific research programs, and encouragement of information and data exchange. These scientific mea-sures and intents shall be achieved either by coopera-tion among states or competent international organizations. Although Article 200 initially states the need to establish science in general terms, it also states that regional and global programs shall be undertaken "to acquire knowledge for the assessment of the na-ture and extent of pollution, exposure to it, and its pathways, risks, and remedies."

Article 201 binds together the results of scientific research required in Article 200 with the development of rules on protecting the marine environment. States shall co-oper