Part XII of UNCLOS is the cornerstone of international environmental law of the sea and embodies a

balance of competing social, economic, and environmental interests in the marine environment.
 Outlines general principles and defines a number of general obligations relating to the
prevention, reduction and control of harm to the marine environment
 Specifies which states have jurisdiction over vessels that may pollute the marine environment
and creates safeguards for vessels accused of polluting.

In The South China Sea Arbitration Award of July 12, 2016 [T]he obligations in Part XII apply to all States
with respect to the marine environment in all maritime areas, both inside the national jurisdiction of
States and beyond it. Accordingly, questions of sovereignty are irrelevant to the application of Part XII of
the Convention the environmental obligations in Part XII of UNCLOS “apply to States irrespective of
where the alleged harmful activities took place
 these obligations are independent from questions of sovereignty over any particular feature, from
a prior determination of the status of any maritime feature, and from the prior delimitation of any
overlapping entitlements.

Article 192 of the UNCLOS

States have the obligation to protect and preserve the marine environment.

Interpretation: although couched in general terms, this duty is informed by the other provisions of Part
XII and other applicable rules of international law as well as by “specific obligations set out in other
international agreements, as envisaged in Article 237 of the Convention.

1. have the obligation to protect the marine environment from future damage and to preserve the
same by maintaining or improving its present condition
2. carries the dual obligation “to take active measures to protect and preserve the marine
environment, and by logical implication, entails the negative obligation not to degrade the marine
environment
3. the general obligations in Article 192 require States to “ensure that activities within their
jurisdiction and control respect the environment of other States or of areas beyond national
control.

REGULATION ON FISHING ACTIVITIES

UNCLOS has placed more emphasis on regulating fishing activities in the EEZs.
o Reading together Articles 237 and 62(1), there exists an obligation for coastal states to
promote optimum utilization in their EEZ while ensuring that the living resources there
are not endangered by overexploitation.
o Further, States are instructed to restore or maintain stocks at the maximum sustainable
yield. Coastal states are instructed to take into account the effects of management
measures on associated species so as not to endanger such species.
o Decisions on setting a TAC, and its allocation, may also be the subject of cooperation
between coastal States where the stock is transboundary in nature, as is often the case.
Cooperation can take place either directly among the States concerned or through some
sort of institutional framework
o In the M/V Virginia G Case, the International Tribunal for the Law of the Sea (ITLOS)
determined that the rights conferred upon the coastal State by Part V of UNCLOS give it
the authority to regulate not only fishing activity within its exclusive economic zone (EEZ)
but also fishing-related activities, such as bunkering of fishing vessels.
- For fishing in the territorial waters, UNCLOS requires States to take ‘measures to protect and
preserve rare or fragile ecosystems’
 o In the West Philippine Sea arbitration, the Tribunal requires States to adopt and take
steps to enforce legislation relating to the protection of endangered species and the
prohibition of certain destructive fishing techniques.
o However, the Convention does require that a coastal State takes into account ‘any
generally recommended international minimum standards, whether subregional, regional
or global’.

OBLIGATION TO ENGAGE IN MARINE CONTINGENCY PLANNING

Article 198 and Article 199 to “immediately notify other States” and “competent international
organizations” likely to be affected by a pollution incident and to “jointly develop and promote
contingency plans” so that States can best coordinate their efforts “to the extent possible, in eliminating
the effects of pollution and preventing or minimizing the damage.

What is marine contingency planning? Marine pollution contingency plans respond to

marine pollution disasters and emergencies in order to protect marine
resources. Notify first then cooperation to come up with a contingency plan follows. This is perceived to
be an emerging customary rule, as observed by existing State practices of marine contingency planning
and opinio juris.

As to the duty to notify

 Since the provisions does not define the degree of damage that requires notification, this gives
States a great deal of latitude in deciding what might trigger the operation of a contingency plan
to protect marine resources.
 Further, the phrase “becomes aware” suggests that a State must take the initiative to patrol
within its own borders and maritime zones to identify incidents of potential pollution damage.64
Whether a State will ultimately provide notification to other States after an inspection of its
waters within its jurisdiction will depend upon how comprehensively the State defines “pollution.”

SPECIFIC OBLIGATIONS

1. PROHIBITION AGAINST LAND-BASED POLLUTION

Pollutants may be released directly into the marine environment through outflows or pipelines, or they
may reach the seas indirectly through rivers or the air. discharge of nutrients associated with agricultural
run-off, transport by air, or sewage outfalls at sea. Litter from land-based sources is another growing
threat to the marine environment,8 which can both kill marine life through entanglement, but also lead to
a number of other problems for marine species and habitats.

THE DUTY UNDER UNCLOS

Who are covered? ‘States’ generally, thereby including not only coastal States, but also landlocked States
that may cause pollution that is transferred to the sea via rivers, aquifers, or through the air. UNCLOS
covers all major land-based inputs into the marine environment. The Convention contains both general
procedural obligations and specific substantive rules that are applicable to land-based sources of marine
pollution.

 Duty to carry out an EIA to the extent that land-based activities are likely to cause ‘substantial
pollution of or significant and harmful changes to the marine environment’, they will also be
covered by the obligations to carry out an environmental impact assessment (EIA) under Article
206.21 In the context of land-based sources of marine pollution, this obligation will have
particular relevance to point source discharges, but it is more difficult to apply to diffuse sources
of pollution, as individual activities will rarely have a substantial impact by themselves.
  Duty to consult with affected States in relation to what action is necessary in the event where
land-based activities are suspected of causing transboundary harm to neighbouring States.
(which was emphasized in the case of Mox Plant and Land Reclamation in Johor Straits).

 a broad obligation on all States to ‘keep under surveillance the effects of any activities that they
permit or in which they engage in order to determine whether these activities are likely to pollute
the marine environment’. In essence, this requires a State to gather evidence relating to the
state of the marine environment and identify any particular substances that may be causing
harm. If such evidence is discovered, the obligation to exercise due diligence in the prevention,
reduction and control of the sources of pollution will kick in, requiring States to investigate the
sources of the harm and to take appropriate action. The monitoring obligation is particularly
important for the identification of serious cases of pollution arising from diffuse sources, such as
urban and agricultural run-off, and it will allow States to ascertain pollution hotspots that require
special attention.

 adopt and enforce national laws and regulations and to take ‘other measures as may be
necessary’ in order to protect the marine environment from land-based sources. These national
legislations must be ‘designed to minimize, to the fullest extent possible, the release of toxic,
harmful or noxious substances, especially those that are persistent, into the marine environment’.

2. PROHIBITION AGAINST DUMPING

Dumping is defined under UNCLOS as ‘(i) any deliberate disposal of wastes or other matter from vessels,
aircraft, platforms or other man-made structures at sea; or (ii) any deliberate disposal of vessels, aircraft,
platforms or other man-made structures at sea’.

Excluded from the definition of dumping:

1. the disposal of wastes or other matter incidental to, or derived from the normal operations of
vessels, aircraft, platforms or other man-made structures at sea and their equipment, other than
wastes or other matter transported by or to vessels, aircraft, platforms or other man-made
structures at sea, operating for the purpose of disposal of such matter or derived from the
treatment of such wastes or other matter on such vessels, aircraft, platforms or structures.
2. placement of matter for a purpose other than the mere disposal thereof, provided that such
placement is not contrary to the aims of [the] Convention’

UNCLOS does not purport to provide detailed rules on dumping but rather seeks to ensure that all States
have in place a basic legal framework to address this issue. Dumping is dealt with primarily by Article
210, which plays a number of important functions.

First, Article 210 clarifies the scope of coastal State jurisdiction over dumping, by providing that ‘dumping
within the territorial sea and the exclusive economic zone or onto the continental shelf shall not be
carried out without the express prior (p. 96) approval of the coastal State’.24 This provision gives the
coastal State exclusive jurisdiction to regulate dumping within these maritime zones. Dumping beyond
national jurisdiction, in contrast, remains subject, in principle, to the exclusive jurisdiction of the flag
State of a vessel or aircraft.

Second, UNCLOS mandates cooperation between the coastal State and ‘other States which may by
reason of their geographical situation may be adversely affected thereby’.25 This provision addresses the
situation where dumping may take place close to the border between two States, thus risking
transboundary harm. Article 210 does not expressly cover the situation where dumping takes place on
the high seas in proximity to the maritime zones of a coastal State, although cooperation would arguably
also be required in this situation by virtue of the more general obligation to prevent, reduce, and control
transboundary harm in Article 194(2).

Third, UNCLOS requires all States to adopt laws and regulations and other necessary measures to
prevent, reduce, and control pollution of the marine environment by dumping, although it leaves them
some discretion as to the manner in which they do this.26 This discretion is limited, however, as the
Convention requires that ‘[n]ational laws, regulations and measures shall be no less effective in
preventing, reducing and controlling such pollution than the global rules and standards’..

Vessel source pollution

- Definition:
- Vessel-source pollution traditionally has been a source of conflict between maritime and coastal
interests. Coastal states have pushed for stricter environmental standards and greater authority
over vessels in their coastal waters. Maritime states have tried to protect their military and
commercial interests in free navigation by arguing that vessels should be subject to flag state
control.
- International law has addressed the problem of vessel-source pollution in two ways: first, by
establishing international vessel-source pollution standards that serve as an
alternative to coastal state regulation; and second, by setting forth rules governing the
jurisdiction of flag, coastal, and port states.
- Despite some expansion of coastal and port state jurisdiction, UNCLOS III preserves the primacy
of flag state jurisdiction. The only obligations it imposes to prevent, reduce, and control vessel-
source pollution are imposed on flag states; coastal and port states have limited jurisdiction to
prescribe and enforce environmental standards, but they are not required to do so

UNCLOS III incorporates by reference those international standards for the protection of the marine
environment, established by the "competent international organization"" or general diplomatic
conference, " which have become "generally accepted," for example, by enunciation in a widely ratified
convention.' Once a standard emerges and gains the requisite level of international acceptance, then
under UNCLOS III a flag state has an obligation to implement the standard through its national laws,
regardless of whether the state is a party to the convention establishing the standard.'

First, they must prescribe legislation that "shall at least have the same effect as" generally accepted
international standards.

Second, flag states must enforce their own laws as well as enact legislation necessary to implement
international standard.

In particular,flag states must:

 ensure the safety of their vessels with regard to construction, equipment, and seaworthiness;
 ensure that masters, officers, and, to the extent appropriate, the crew have proper training
regarding the applicable international pollution regulations;
 take appropriate measures to ensure that vessels not in compliance with international CDEM
standards are prohibited from sailing;
 ensure that their vessels are periodically inspected and carry on board internationally required
certificates;
 investigate alleged violations committed by their vessels, including violations alleged by another
state;
 institute proceedings for violations of international rules and standards, regardless of where the
violation occurs; and
 impose penalties adequate in severity to deter violations wherever they occur
- International minimum standards must be maintained to prevent vessel source pollution
- A coastal state may enact more stringent pollution standards upon petitioning a competent
international organization.