Law of The Marine Environment

Introduction

Despite the world taking measures to address the dangers posed by the transportation of ultra-hazardous dangerous cargoes, some gaps exist in the legal administration of these activities. An apparent accord has been reached at the International Maritime Organization (IMO) to enforce the Code for the Safe Carriage of Irradiated Nuclear Fuel, Plutonium, and High-Level Radioactive Wastes in Flasks Onboard Ships (the INF Code) and to seek clarification on the standards governing shipboard security. However, there remain unresolved issues regarding rescue duties, the liability of shippers for damages, and the amendment of transport container security standards to meet maritime accident conditions. Additionally, commitments to consult regarding the best routes and to provide appropriate notifications to concerned coastal states, the arrangement of environmental assessments, and contingency planning to handle shore emergencies and rescue obligations are still lacking. Until agreements are reached on these crucial issues, the shipment of these highly hazardous or “ultra-hazardous” materials will continue to violate essential principles of international law and comity as they expose coastal nations, which do not benefit from the shipments, to a grave risk of environmental disaster without adequate statutory protections.

The International Maritime Dangerous Goods (IMDG) Code

The International Maritime Dangerous Goods (IMDG) Code was adopted in 1965 in accordance with the Safety of Life at Sea (SOLAS) Convention of 1960. The IMDG Code was established to prevent various types of pollution at sea and to ensure that goods transported by marine means are packaged in a manner that allows them to be safely carried. The hazardous goods code is a uniform code, which means that the system is applicable to all cargo-carrying ships worldwide (IMO, 2021). Despite its broad applicability, the IMDG Code still requires updates and improvements to address the evolving challenges of transporting hazardous materials in today's complex maritime environment.

Law of the Marine Environment

To seek an answer to the broader question of whether there is a general obligation on all States to conserve the marine ecosystem, it is essential to look beyond specific treaty obligations to customary international law. The starting point of this assessment is the United Nations Convention on the Law of the Sea (UNCLOS), which came into force in November 1994, but which is widely recognized as reflective of customary law. The standard code recognizes the division of the sea into a series of juridical zones which reflect criteria related to Coastal States’ sovereignty and resource exploitation rather than considerations of ecosystem integrity. The nature of the obligations which customary international law and now the 1982 UNCLOS impose on States in relation to the marine environment largely depends on the juridical nature of the specific waters in question (Tanaka, 2012).

Therefore, these jurisdictional divisions can create a significant obstacle to the rational management of ecosystems or species which cross or straddle more than one zone. Broadly, the seas are divided into the following maritime zones: internal waters – behind the coastal state baseline; a belt of territorial waters up to 12 nautical miles in breadth, a 24 nautical mile contiguous zone with limited enforcement jurisdiction, a 200 nautical mile exclusive economic zone or fishing zone, and the high seas beyond these limits. Within each of these zones, the Convention envisions a different balance of rights and responsibilities between the coastal states and other states (Churchill & Lowe, 1999).

UNCLOS and Marine Ecosystem Protection

UNCLOS contains several provisions of general significance for the protection of marine ecosystems. It would likely be a mistake to assume this was a conscious drafting objective per se. It is certainly possible to interpret the provisions of Part XII of the Convention as support for a marine ecosystem approach to ocean conservation, even though these obligations are even less precise than those relating to pollution control. Article 192 of UNCLOS recognizes a general obligation to “protect and preserve the marine environment.” Insofar as this goes beyond basic protection, it can be interpreted as a responsibility to act prudently (UNCLOS, 1982).

Article 194(5) specifically requires that “measures taken in accordance with this Part shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened, or endangered species and other forms of marine life.” As this provision is situated within the general provisions of Part XII, it requires all States to protect these unique ecosystems and habitats from the effects of pollution originating from all sources in addition to other general conservation measures (Kimball, 2003).

Article 196 requires States to take all measures to prevent, reduce, and control pollution from “the use of technologies” under either their jurisdiction or control. This could be interpreted to include biotechnology or any other polluting technology. The rest of the section requires states to prevent, reduce, and control the “intentional or accidental introduction of species, alien or new, to a particular part of the marine environment which may cause significant or harmful changes to it.” However, the definition of pollution adopted by UNCLOS lacks an explicit reference to impacts on marine ecosystems. This deficiency has been remedied in some regional conventions (Freestone, 2009).

Exclusive Economic Zone (EEZ) Obligations

In the Exclusive Economic Zone (EEZ) (Part V), coastal States are obliged to ensure “through proper conservation and management measures that the maintenance of living resources is not endangered by over-exploitation.” This involves considering the effects on species associated with or dependent upon harvested species to maintain or restore populations of such related or dependent species above levels at which their reproduction may become seriously threatened. Similar provisions apply to such species in high sea fisheries. However, these provisions “only aim to maintain the viability of such species, and not to ensure their role within the food web or the functioning of the marine ecosystem as a whole” (Molenaar, 1998).

**References:**

Churchill, R. R., & Lowe, A. V. (1999). *The Law of the Sea*. Manchester University Press.

Freestone, D. (2009). *The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas*. Martinus Nijhoff Publishers.

International Maritime Organization (IMO). (2021). *International Maritime Dangerous Goods (IMDG) Code*.

Kimball, L. A. (2003). *International Ocean Governance: Using International Law and Organizations to Manage Marine Resources Sustainably*. IUCN.

Molenaar, E. J. (1998). *Coastal State Jurisdiction over Vessel-Source Pollution*. Kluwer Law International.

Tanaka, Y. (2012). *The International Law of the Sea*. Cambridge University Press.

UNCLOS (United Nations Convention on the Law of the Sea). (1982). *United Nations Convention on the Law of the Sea*.