I. INTRODUCTION
The marine environment is in declining health,Footnote 1 faced with global environmental threats such as biodiversity loss, pollution, climate change and overfishing. These threats touch all parts of the ocean, from coastal waters to the deep seabed. From an ecological perspective, the ocean is considered to form an interconnected whole.Footnote 2 From a legal perspective, the ocean comprises numerous zones of varying rights and jurisdiction, divided by ecologically arbitrary lines on the map. This system runs counter to the declaration in the Preamble to the United Nations Convention on the Law of the Sea (UNCLOS)Footnote 3 that the ‘problems of ocean space are closely interrelated and need to be considered as a whole’.Footnote 4
The plight of the marine environment beyond national jurisdiction is the subject of considerable international attention, not least demonstrated by the ongoing intergovernmental negotiations on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ).Footnote 5 While the marine environment beyond national jurisdiction is certainly in need of protection, the situation is no less acute in areas under national jurisdiction (AUNJ). Within national jurisdiction, where many of the ocean's areas of highest biodiversity are found, coastal States are able to exercise their sovereignty with something approaching impunity, so long as any environmental harm is contained within their own maritime zones. In the past, this situation may have fairly reflected the international community's more close-sighted concerns. However, this article argues that the rise and escalation of global environmental threats has led to worldwide growth in environmental consciousness, and that accordingly community interests have emerged in the protection of the marine environment within national jurisdiction. In other words, the international community has an interest in the protection of the marine environment as a whole.
It is widely recognised that at a general level the international community has what is referred to as a ‘community interest’ in the protection of the environment,Footnote 6 including the marine environment.Footnote 7 Discussion of this interest in the marine context is however typically limited to the environment of the high seas and the seabed beyond national jurisdiction (the Area). The interests of the international community in the marine environment of AUNJ receives short, if any, shrift. Particularly lacking is a detailed examination of the existence, scope and content of the obligations of coastal States to protect the marine environment within their national jurisdiction for the benefit of the international community. Such an examination is necessary for any evaluation of the rights of third States to take action, on behalf of the international community, in the event that the coastal State fails to meet its obligations to protect its own marine environment.
The aim of this article is to examine the much less-considered question of what interest the international community may have in the marine environment as a whole and, particularly, in the marine environment in AUNJ. The core argument made is that, despite the dominance of the zonal jurisdictional regime in UNCLOS, the international community has, in fact, clearly and consistently demonstrated an interest in the protection of the marine environment in AUNJ. The aim in identifying this community interest is to signal to coastal States that international importance is attached to their performance of marine environmental protection obligations within their national jurisdiction. In doing so, opportunities will potentially emerge for coastal States to be held to account by other States for actions that harm the marine environment in AUNJ.
The next section begins with an introduction to the system of zonal jurisdiction under the law of the sea and the regime for the protection of the marine environment. Following sections then turn to a discussion of the concept of ‘community interests’ in general, before applying the concept in the context of the protection of the marine environment in AUNJ. The main section of this article identifies the interests of the international community in the protection of the marine environment in AUNJ. This examination is conducted by an analysis of the direct expressions by States of their interests in the marine environment as evidenced in treaties, resolutions adopted by international organisations, the outcomes of multilateral conferences and other international instruments. This method accords to the argument made in this article that because community interests are defined by the presence of a shared subjective element held by States, they must be identified on the basis of direct evidence of this shared interest. This analysis not only fills a lacuna in the literature but, importantly, reveals the content and scope of the international community's interest in the protection of the marine environment in AUNJ. While the legal and normative consequences of this finding are the subject of further study, these findings themselves should indicate to States that their actions and policies concerning the protection of the marine environment of their own maritime zones are a matter of concern to all States, and for which they may ultimately be held accountable.
II. Zonal jurisdiction and the marine environment
Prior to the adoption of UNCLOS in 1982, the extent of sovereignty over maritime areas had been a fraught issue for centuries. Until the mid-20th century, the principle of the freedom of the seas dominated. Thus, with the exception of a narrow band of coastal State jurisdiction along the coast,Footnote 8 the seas were not open to acquisition or occupation by States.Footnote 9 After major failed attempts in the 20th century to agree on the maximum breadth of this band of water known as ‘the territorial sea’, finally, with the adoption of UNCLOS, States agreed on a maximum breadth of 12 nautical miles (nm).Footnote 10
In addition to the 12 nm territorial sea, and a further possible 12 nm contiguous zone for the purposes of preventing and punishing infringements of certain laws committed within the territorial sea,Footnote 11 UNCLOS established the exclusive economic zone (EEZ). The EEZ extends to a maximum distance of 200 nm from the baselines used to measure the breadth of the territorial sea,Footnote 12 encompassing around one third of the world's ocean as well as the vast majority of all fish and marine oil resources.Footnote 13 In the EEZ, the coastal State exercises sovereign rights over the living and non-living resources of the zone and for other economic activities, as well as jurisdiction relating to artificial islands and structures, marine scientific research, and the protection of the marine environment.Footnote 14 Unlike in the territorial sea, the coastal State does not have sovereignty over the EEZ, and must allow other States certain specified rights and freedoms therein.Footnote 15 UNCLOS also established rules for the extent, and claiming, of coastal States’ entitlement to the continental shelf and seabed adjacent to their coasts. Therefore, within a short space of time the ocean was transformed from a space largely open to all States to one where one third or more of the total area is now under the jurisdiction of coastal States.Footnote 16
One of the motivations or justifications for this extension of coastal State jurisdiction over the ocean was the desire to avoid a ‘tragedy of the commons’ situation with respect to high seas fisheries.Footnote 17 It was believed by the negotiators of UNCLOS that if fisheries resources were placed under the exclusive control of the coastal State, they would have an incentive to ensure that they were exploited sustainably.Footnote 18 The EEZ also transferred to coastal States jurisdiction as provided in UNCLOS with respect to the protection and preservation of the marine environment, with similar hopes concerning pollution prevention.Footnote 19 Over 25 years since the entry into force of UNCLOS, it is evident that this innovation did not have its desired effect.Footnote 20 Marine areas under national jurisdiction are no healthier, and perhaps even less healthy, than areas beyond national jurisdiction (ABNJ).Footnote 21 A 2020 report commissioned by the High Level Panel for a Sustainable Ocean Economy found that the areas of highest marine biodiversity, often located in coastal waters, are also often the most highly affected by human impacts.Footnote 22 There is therefore a clear need for coastal States to take measures for the protection of the marine environment under their jurisdiction.
III. Community interests in international law
This section introduces the concept of ‘community interests’ in international law, before its application to the context of the marine environment in AUNJ and the presentation of the results of an in-depth study that identifies this community interest on the basis of documentary evidence.
International law has traditionally been of an essentially bilateral nature,Footnote 23 meaning that obligations are owed reciprocally between pairs of States, and only the State to which the obligation is owed has an interest in its performance.Footnote 24 However, since the mid-20th century, there has been increased recognition of ‘the notion of obligations owed to an international community of States – and ultimately of all humankind’.Footnote 25 It is these obligations, owed to the international community as a whole, which form the core of ‘community interests’.
The first step in understanding or defining ‘community interests’ is to identify the ‘community’ to which they belong. As noted at the outset, this article focusses on the interests of the ‘international community’. While use of that term is not uniform,Footnote 26 given this article's focus on inter-State rights and duties, a narrow definition of the ‘international community’ is adopted here, restricted to the ‘international community of States’.Footnote 27
The concept of ‘community interests’ has been studied in the literature extensively, and is widely accepted.Footnote 28 However, it remains without a clear or consistent definition.Footnote 29 ‘Community interests’ have been variously described as referring to matters of fundamental values of concern to all States;Footnote 30 protecting public goods of the international community;Footnote 31 transcending the interests of single States and instead corresponding to the ‘needs, hopes and fears of all human beings’;Footnote 32 protecting important or fundamental interests,Footnote 33 interests of a collective nature, or interests needing to be protected by collective action; or rules whose violation affects a number of States irrespective of any direct interest.Footnote 34
In the Reservations to the Genocide Convention Advisory Opinion, the International Court of Justice (ICJ) highlighted the common interest of all States Parties in the accomplishment of the goals of the Genocide Convention, which was adopted for purely humanitarian and civilising purposes.Footnote 35 This ‘common interest’ of the parties was founded on the ‘high purposes’ of the Convention, which did not relate to ‘individual advantages’ to States.Footnote 36 In the January 2020 Provisional Measures Order of the ICJ in the case between the Gambia and Myanmar on the application of that same convention, the Court found that the parties to the Genocide Convention have a common interest in preventing and punishing the crime of genocide on the basis of ‘their shared values’.Footnote 37
What emerges from these formulations is the definition of community interests that will be used in this article: that community interests refer to the interests that the ‘international community’ or a subset thereof has in the protection or furtherance of a good or value that is shared among the members of the group, and that therefore extend beyond the bilateral concerns of individual States.Footnote 38
IV. The emergence of community interests in the protection of the marine environment within national jurisdiction
In customary international law, there is a long-standing rule against causing harm to the territory of one's neighbour.Footnote 39 This rule has evolved over time since its origins in the 1941 Trail Smelter Arbitration between the United States and Canada over transboundary pollution from a Canadian smelter.Footnote 40 By the 1972 Stockholm Conference on the Human Environment, held one year before the negotiations for UNCLOS began, the principle had developed to extend beyond the territory of other States to include ‘areas beyond the limits of national jurisdiction’.Footnote 41 The 1982 UNCLOS begins Part XII on the Protection and Preservation of the Marine Environment with the ‘general obligation’ in Article 192 that ‘States have the obligation to protect and preserve the marine environment’.Footnote 42 Article 194(1) provides that all States shall take ‘all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source’. When read in conjunction with Article 192, this obligation clearly applies in all maritime zones,Footnote 43 including those under the jurisdiction of the coastal State.
While it therefore seems clear that coastal States have an obligation to protect the marine environment under their national jurisdiction, the question of whether the international community has an interest in the protection of these areas has not previously been addressed in the literature. It is this question that this article seeks to address.
The question has, however, been addressed in the field of human rights and here the developments are instructive. Traditionally, States were internationally responsible only for mistreatment of foreign nationals within their territory. The development of human rights law, however, has extended international responsibility to a State for the mistreatment of its own nationals, with third States now able, in some circumstances, to seek remedies for such violations.Footnote 44 This development is demonstrated, for example, by the ongoing proceedings between the Gambia and Myanmar at the ICJ, where the Gambia's claim is based on alleged violations of the Genocide Convention being perpetrated by the Government of Myanmar against the Rohingya group, occurring on the territory of Myanmar.Footnote 45
The existence, scope and content of community interests in the protection of the marine environment has only been very briefly studied in the literature and discussed in international jurisprudence. In its 2011 Advisory Opinion, the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS) stated that the obligations in UNCLOS relating to the preservation of the environment of the high seas and of the Area have an erga omnes character.Footnote 46 Several prominent academic commentators in the field have concluded that the protection of the marine environment, particularly of the global commons, is a matter of common interest, common concern, or gives rise to erga omnes obligations.Footnote 47
However, as said by Johnstone, in comparison to the discussion of the status of high seas environmental norms, ‘[m]uch less has been written about third States’ right to invoke responsibility when a State willfully or negligently contaminates its own EEZ, the consequences of which are not felt beyond 200 nautical miles’.Footnote 48 Writing in the year 2000, Ragazzi noted that the traditional view that ‘a coastal State has no obligation erga omnes to protect its marine environment as such’ is ‘gradually being eroded’.Footnote 49 He considered that ‘there now seems to be a general obligation of States to protect and preserve the marine environment as such, including the protection and preservation of the territorial sea’.Footnote 50
Two decades later, pronouncements by academic commentators that the international community has an interest in the protection of the marine environment generally have rarely been made on the basis of evidence of these interests in the form of direct expressions by States. What this article seeks to do is identify indications or evidence of this interest, or particular interests, in official documents that may contain expressions of the will of States as members of the international community.
V. Seeking evidence of community interests
There is no agreed formula or method for the identification of ‘community interests’.Footnote 51
The process for the identification of community interests is distinct from that for the identification of customary international law, as although there may be crossover between the concepts, at the fundamental level, customary international law is binding while community interests is a broader concept that may or may not give rise to binding obligations. Despite this key difference, useful parallels may be drawn with the process for identifying customary international law. The most widely accepted method for the identification of a rule of customary international law comprises the ascertainment of whether there is both State practice and opinio juris.Footnote 52 As said by the International Law Commission (ILC), ‘one must look at what States actually do and seek to determine whether they recognize an obligation or a right to act in that way’.Footnote 53 It is the second part of this process, the ascertainment of the subjective element, the opinio juris, that may provide some insight into the process for the identification of community interests, as a subjective element is central to both concepts, though in different ways. For customary international law, the subjective element goes to what States believe they are bound by and, for community interests, the subjective element goes to what States have a shared interest in.
The ILC has stated that the forms of evidence of opinio juris ‘may take a wide range of forms’ including:
public statements made on behalf of States; official publications; government legal opinions; diplomatic correspondence; decisions of national courts; treaty provisions; and conduct in connection with resolutions adopted by an international organization or at an intergovernmental conference.Footnote 54
The ILC noted that ‘multilateral drafting and diplomatic processes may afford valuable and accessible evidence as to the legal convictions of States with respect to the content of customary international law’.Footnote 55 Moreover, resolutions adopted by an international organisation or at an international conference may provide evidence for the existence or content of customary law, though they cannot of themselves create a rule of customary international law.Footnote 56
In practice, however, the process for the identification of customary international law outlined by the ILC is not always followed. The ICJ has been frequently criticised for deficiencies in its methodology for the identification of custom. Rather than finding a rule of customary international law based on evidence of practice and opinio juris of States, some commentators consider that the ICJ has instead ‘asserted’Footnote 57 or ‘deduced’Footnote 58 the existence (or non-existence) of a rule without providing supporting evidence. This perceived inadequate reliance on State practice in the identification of customary international law rules has led some commentators to observe that the ICJ is pursuing ‘aspirational goals’ rather than identifying rules that are genuinely reflected in State practice and opinio juris.Footnote 59 This same ‘assertion’ method has also been employed when identifying obligations erga omnes or jus cogens norms, with the ICJ naming such obligations and norms without examining whether they meet the accepted qualifying tests.Footnote 60
Similar criticisms can be made of the way that community interests are generally identified in the literature. Numerous, undoubtedly worthy, ‘community interests’ have been proclaimed by commentators without reference to evidence that the interest is held in common by the relevant community. Evidentiary issues aside, it is clear that reliance on academic literature or international case law as the primary arbiter of what constitutes community interests is untenable.
Further complicating the methodological question is the lack of an agreed definition of ‘community interests’, which is a more nebulous concept than customary international law or even obligations erga omnes and jus cogens norms. According to the definition adopted in this article, unlike customary law with its required element of State practice, community interests are identified by the presence of a subjective element only: an interest shared by States in a certain good or value. In other words, community interests are the interests that the given community subjectively believes them to be. What this article aims to do is identify community interests in the protection of the marine environment within national jurisdiction on the basis of evidence that the particular interest is in fact shared by States forming the international community. Taking lessons from the ILC on the identification of opinio juris, this article will take outcomes from multilateral and diplomatic drafting processes as evidence of the convictions of States.
This approach is well justified in the literature. Wolfrum, for example, considers that the existence of a community interest may be established by its inclusion in an international treaty with widespread membership, or established ‘politically’ so long as members of the international community have the opportunity to participate in the process of identification.Footnote 61 Benedek et al agree that community interests may be identified by the wide support they enjoy in the international community, with widely ratified multilateral treaties as well as soft-law instruments and positions taken at international forums possible indicators of support.Footnote 62 They state that ‘convincing evidence of the existence of a global common concern’ can be found in declarations adopted by the UNGA or at international conferences by consensus or with a large majority.Footnote 63 Simma identifies multilateral treaties as the ‘vehicle par excellence of community interest’, with community interests particularly embodied in multilateral treaties negotiated by consensus.Footnote 64 Klabbers notes that community interests can be formulated in a tangible way through the adoption of resolutions or other instruments.Footnote 65 He describes the UNGA as the world's ‘town meeting’, the one forum where almost all States come together and all ‘can have their say’ without the pressure of ‘having to accomplish things’.Footnote 66 According to Klabbers, without legislative powers, the UNGA is able to focus its energy on ‘shaping notions of the community interest’.Footnote 67 Indeed, the ILC has described UNGA resolutions as potentially offering ‘important evidence of the collective opinion of its Members’.Footnote 68 Further, the ILC has stated that resolutions of organs of international organisations ‘may reflect the collective expression of the views’ of the Member States.Footnote 69
The following section summarises the indications of community interests in the protection of the marine environment within national jurisdiction extracted from the documents studied, taking a chronological approach to the review. It seeks to find evidence of expressions of community interests in the protection of the marine environment, particularly within national jurisdiction. Specifically, the documents studied are all the annual resolutions on ‘Law of the Sea’ or ‘Oceans and the Law of the Sea’ adopted by the UNGA from 1974 to 2020; UNCLOS; the instruments arising out of the 1992 Rio Conference on Environment and Development, particularly the Convention on Biological DiversityFootnote 70 (CBD) and Agenda 21; all Reports and Decisions adopted by the CBD Conference of the Parties (COP); the outcome documents of the Rio+10 and Rio+20 Conferences; and other instruments, such as the Sustainable Development Goals.
These documents have been examined for statements concerning the protection of the marine environment within national jurisdiction, either explicit or implicit. For example, some documents, such as Agenda 21, explicitly highlight action to be taken to protect the marine environment specifically within national jurisdiction. Other documents, such as the annual UNGA resolutions, consistently raise the issues of land-source pollution and coastal development, which are issues that predominately affect the marine environment within national jurisdiction. Integrated ocean management is also highlighted, which does not specifically refer to the marine environment within national jurisdiction but rather emphasises that environmental and other ocean sustainability issues should be dealt with across jurisdictional lines, within and beyond national jurisdiction.Footnote 71 Statements concerning the protection of coral reefs, which primarily occur within national jurisdiction,Footnote 72 were also targeted. Trends and consistent themes were able to be identified over time, which this article argues show that the international community shares an interest in the protection of the marine environment within national jurisdiction.
Most of the documents studied are ‘informal’ or ‘soft-law’ instruments.Footnote 73 No assessment is made here as to the legal status of these documents or the indications of community interests found therein. Rather, these informal documents, being directly negotiated by States, serve as useful evidence of the matters that are of concern to the international community. Inevitably, some selection has been made and potentially relevant fora and instruments may well have been excluded. For example, the activities of States acting through the International Maritime Organization have not yet been included in the study. Thus, while extensive, the analysis is not yet comprehensive. Nevertheless, the analysis presented goes beyond any found in the current literature and in doing so provides a detailed picture of the existence and scope of the interests of the international community in the protection of the marine environment in AUNJ.
Many of the documents analysed run to hundreds of paragraphs and therefore the section referring to the protection of the marine environment within national jurisdiction often represents a minor component of the overall document quantitatively speaking. This article does not purport to weigh the extent or importance of the various community interests that may be expressed in the documents. It does not argue that the protection of the marine environment within national jurisdiction is the only or the most important community interest expressed in the documents. By arguing that States acting through the UNGA and other multilateral settings have consistently indicated a community interest in the protection of the marine environment in AUNJ, this article is not deliberately obscuring other community interests that may have been expressed more strongly, they are simply outside the scope of the investigation. Crucially, in almost all the documents studied, the need to build capacity in developing States to permit the achievement of global environmental goals was consistently emphasised.
Finally, while instruments or resolutions adopted by the majority of States can provide indications of the interests that States share, it must be acknowledged that States may be motivated by a variety of reasons to agree to the text that may not be related to the content of the text itself.Footnote 74 The risk of being misled by this ‘superficial acceptance’ is tempered to some extent as the following analysis does not rely on indications of community interests derived from any one document, but rather draws together threads from many documents over time to identify the consistently cited interests.
VI. Indications of community interests in the protection of the marine environment
A. Early Indications pre-1982
The adoption of UNCLOS in 1982 can be considered as the start of the modern era in the law of the sea. Although it built on earlier treaties and customary international law, Part XII of UNCLOS set out ‘the first comprehensive statement of international law’ on the protection and preservation of the marine environment.Footnote 75 Nonetheless, global concern regarding the protection of the marine environment was evident before the adoption of UNCLOS.
Some of the earliest indications of the international community's concern regarding the health of the marine environment emerged in the 19th century, when the development of intensive fishing techniques meant that fish could be harvested more efficiently.Footnote 76 States fishing in waters affected by the new phenomenon of overfishing began to conclude agreements to regulate the conduct of fishing to ensure the sustainability of the stock and to minimise disputes between competing States.Footnote 77 At this time, States were largely motivated by a desire to preserve fish as a resource rather than out of environmental concerns, but the foundations were laid for the international regime for the protection of marine species. The 1893 dispute between Great Britain and the United States over the hunting of fur seals in Alaska largely concerned questions of jurisdiction and the right of the United States to arrest British vessels hunting seals on the high seas, and the related question of ownership of the seals.Footnote 78 However, out of this dispute came regulations for the conduct of sealing, which included an initial moratorium, closed and open catch seasons and limitations on vessel size and types of fishing gear.Footnote 79
The other major threat to the marine environment that gained early international attention was marine pollution and particularly oil pollution from ships.Footnote 80 In 1954, the International Convention for the Prevention of Pollution of the Sea by Oil (OILPOL) was adopted, which sought to regulate marine oil pollution from operational discharges.Footnote 81 OILPOL was not adequately implemented or enforced and was replaced in 1973 by MARPOL,Footnote 82 discussed below.
The protection of the marine environment was apparently not a primary concern at the 1958 Conference on the Law of the Sea, with the resulting conventions including few provisions to that end.Footnote 83 The Convention on the Territorial Sea and the Contiguous Zone makes no mention of the marine environment at all.Footnote 84 The Convention on the High Seas obliges States to regulate to prevent oil pollution and pollution from seabed exploitation and exploration, and to take measures to prevent pollution from the dumping of radioactive waste.Footnote 85 The Convention on Fishing and the Conservation of the Living Resources of the High Seas imposes the duty on parties to adopt, or cooperate with other parties in adopting, measures necessary for the conservation of the living resources of the high seas.Footnote 86 However, it is important to note that ‘conservation’ was understood at the time as conserving the supply of food and marine products rather than as conserving living resources as part of marine biodiversity.Footnote 87 The Convention on the Continental Shelf obliges coastal States to undertake, in safety zones around continental shelf installations, all appropriate measures for the protection of marine living resources from ‘harmful agents’.Footnote 88
In 1969, the first session of the Joint Group of Experts on the Scientific Aspects of Marine Pollution (GESAMP) was held, established under the sponsorship of the precursor to the IMO, the UN Food and Agriculture Organization, the UN Educational, Scientific and Cultural Organization (UNESCO) and the World Meteorological Organization (WMO).Footnote 89 GESAMP was the first inter-agency scientific body in the field of marine pollution,Footnote 90 established out of the concern that those international organisations or agencies shared in ‘marine pollution problems’, in order ‘to advise these agencies and through them their Member States on scientific aspects of marine pollution’.Footnote 91
In 1972, the United Nations Conference on the Human Environment (the Stockholm Conference) adopted the Stockholm Declaration, which set out certain soft law principles relevant for the protection of the marine environment.Footnote 92 These include Principle 7 by which States shall take all possible steps to prevent pollution of the seas, and Principle 22 which tempers States’ sovereign right to exploit their own resources pursuant to their own environmental policies, with the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of ABNJ.Footnote 93 These principles were soon after codified in Part XII of UNCLOS.Footnote 94
The 1970s brought other indications of the increasing importance of marine environmental protection to the international community. Parties to the 1972 London Dumping Convention pledged to take all practicable steps to prevent marine pollution by dumping.Footnote 95 In its Preamble, the parties recognised that ‘all people have an interest in assuring’ that the marine environment is managed so ‘that its quality and resources are not impaired’.Footnote 96 The parties agreed to implement the London Dumping Convention with respect to vessels and aircraft registered in their territory or flying their flag, vessels and aircraft loading in their territory or territorial seas matter which is to be dumped, and vessels, aircraft and floating platforms under their jurisdiction believed to be engaged in dumping.Footnote 97 At the time of its adoption, the zonal jurisdictional system had not been settled. Article 13 of the London Dumping Convention referenced that fact, in which parties agreed to convene a meeting by 1976 ‘with a view to defining the nature and extent of the right and the responsibility of a coastal State to apply the Convention in a zone adjacent to its coast’.Footnote 98
In 1973, the IMO adopted the International Convention for the Prevention of Pollution from ships (MARPOL). MARPOL imposes obligations on States to enforce pollution prevention regulations with respect to ships flying their flag. It does not explicitly require States to protect the marine environment under their jurisdiction, however its adoption demonstrates the increasing concern shared by the international community regarding the effects of pollution on the marine environment.
B. UNCLOS and the pre-CBD Period
In 1973, immediately after the Stockholm Conference, negotiations began for UNCLOS. The importance of the protection of the marine environment in UNCLOS was demonstrated by its dedicated Part XII on the Protection and Preservation of the Marine Environment, which contains broad and wide-ranging obligations that were considered innovative at the time of adoption.Footnote 99 This importance was also reflected in the Preamble to UNCLOS, where the parties recognised the desirability of establishing ‘a legal order for the seas and oceans which … will promote the conservation of the [sea's] living resources, and the study, protection and preservation of the marine environment’.Footnote 100
Part XII of UNCLOS represents the ‘first comprehensive statement of international law’ on the protection and preservation of the marine environment.Footnote 101 Although it imposes wide-ranging obligations on States, consensus on Part XII was reached at a ‘comparatively early’ stage of UNCLOS negotiations.Footnote 102 According to the 1989 special report of the UN Secretary-General on the Protection and Preservation of the Marine Environment, this early consensus was ‘indicative of the unanimous concern of the world community about the problem of marine pollution and the common resolve to find the required solutions’.Footnote 103
It is notable that UNCLOS was negotiated with the participation of many newly independent developing States,Footnote 104 and therefore can be said to reflect the consensus of the international community to a greater extent than many earlier treaties. A total of 164 States registered to participate in the 1973–82 conference, and 140 of these were represented at most sessions.Footnote 105 These numbers can be seen as highly significant when compared to the membership of the United Nations at that time, which grew from 135 States in 1973 to 157 in 1982.Footnote 106
However, despite this wide participation, it must be acknowledged that significant portions of the treaty were negotiated in closed-door small group discussions.Footnote 107 The power of developing States during the negotiations can be seen in the adoption of Part XI of UNCLOS on deep seabed mining and the common heritage of [hu]mankind, however the political reality raised its head with developed States’ refusal to ratify the convention and finally the de facto amendment of Part XI in 1994.Footnote 108
UNCLOS brought with it a ‘fundamental shift from power to duty as the central controlling principle of the legal regime for the protection of the marine environment’.Footnote 109 Before UNCLOS, States had certain powers to regulate marine pollution, but the law of the sea imposed little in the way of concrete duties on States to regulate marine pollution.Footnote 110 During the negotiations of UNCLOS, a major theme was the right of coastal States to protect their maritime zones from the threat of vessel source pollution.Footnote 111 Although duties were imposed on coastal States with respect to land-based sources, seabed activities within national jurisdiction, pollution from or through the atmosphere and the conservation of living marine resources, these rules are far less detailed than those applicable to vessel source pollution.Footnote 112
UNCLOS would not enter into force until 12 years later in 1994, but, in the intervening period, the UNGA continued its practice of issuing annual resolutions on the law of the sea, which it had commenced during the negotiations of UNCLOS. Without a formal COP procedure with the authority to discuss substantive issues, these annual resolutions are one of the few ways that UN member States can set out matters of concern or significance regarding the ocean and law of the sea.Footnote 113 Following the conclusion of UNCLOS negotiations, the content of the annual resolutions changed from practical matters relating to the conference to broader issues regarding the functioning of the Convention and the oceans and law of the sea more generally. Resolutions of the UNGA are not legally binding; however, they may reflect the will or interests of the States that vote in their favour.Footnote 114 Since 1982, the annual resolutions on oceans and the law of the sea have been adopted with a maximum of two States against, and fewer than ten States abstaining.
From 1982 to 2020, the content of the annual resolution has continued to evolve, as the resolution itself has grown. In 1982, the annual resolution amounted to less than one page, but by 2020 it had reached 56 pages. These resolutions reflect the changing priorities of States and have, over time, devoted ever more attention to the protection and preservation of the marine environment. The first mention of the marine environment came in 1988 when the General Assembly stated that it was ‘deeply concerned at the current state of the marine environment’.Footnote 115 Accordingly, the Secretary-General was requested to prepare a ‘special report on recent developments related to the protection and preservation of the marine environment in the light of the relevant provisions of the United Nations Convention on the Law of the Sea’.Footnote 116 Relying on the work of GESAMP, the Secretary-General's report emphasised harm to the coastal zone (from development) and harm primarily affecting the coastal zone (eutrophication and marine litter, both predominately caused by land-source pollution), which would become constant themes in future annual resolutions on oceans and law of the sea.Footnote 117
The resolutions in 1989, 1990 and 1991 reiterated States’ ‘deep concern’ in the health of the marine environment, and emphasised threats to living marine resources and called on States to strengthen cooperation for the conservation of marine living resources.Footnote 118 The resolutions in 1989 and 1990 also highlighted the ‘urgent need to increase the scientific knowledge of the marine environment’.Footnote 119 In 1989, a separate resolution was also adopted on the impacts of large-scale pelagic fisheries, which introduced a moratorium on driftnet fishing.Footnote 120
C. The Rio Conference and the CBD
The 1992 Rio Conference on Environment and Development and the adoption of instruments, including the CBD and Agenda 21,Footnote 121 held great significance for the protection of the marine environment. Although only ten years had passed since the adoption of UNCLOS, the developments in environmental priorities were readily apparent—UNCLOS itself does not explicitly refer to biological diversity yet by 1992 an entire new treaty was devoted to this topic. Both the CBD and Agenda 21 direct specific attention to the protection of the marine environment within national jurisdiction.
The CBD Preamble affirms ‘that the conservation of biodiversity is a common concern of humankind’.Footnote 122 Relevantly for the purposes of this project, with respect to the ‘components’ of biodiversity, the CBD applies only within the national jurisdiction of its member States.Footnote 123 Therefore, the conservation of the components of biodiversity within national jurisdiction is specifically recognised by the parties to the CBD as a common concern of humankind. Decisions of the COP are therefore largely focused on marine biodiversity within national jurisdiction and recognise that the UNGA has the central role relating to the conservation and sustainable use of biodiversity beyond national jurisdiction.Footnote 124 The CBD is one of the world's most widely ratified treaties, with 196 parties as of 2021,Footnote 125 indicating a widespread community interest in the protection of biodiversity.
Agenda 21 sets out the programme of action to achieve sustainable development based on the Rio Principles. According to its Preamble, it ‘reflects a global consensus and political commitment at the highest level on development and environment cooperation’.Footnote 126 Chapter 17 of Agenda 21 is dedicated to the ocean and deals with ‘[P]rotection of the oceans, all kinds of seas, including enclosed and semi-enclosed seas, and coastal areas and the protection, rational use and development of their living resources’. Chapter 17 positions itself under the UNCLOS umbrella, describing UNCLOS as reflecting international law on the protection and preservation of the marine environment, setting out the rights and duties of States.Footnote 127
The opening line of Chapter 17 declares that ‘the marine environment – including the oceans and all seas and adjacent coastal areas – forms an integrated whole’.Footnote 128 Chapter 17's first Programme Area, ‘Integrated management and sustainable development of coastal and marine areas, including exclusive economic zones’, focusses on the protection of the marine environment within national jurisdiction. It emphasises that the marine environment under national jurisdiction contains diverse and productive habitats that support a large proportion of the world's population.Footnote 129 In that Programme Area, coastal States ‘commit themselves to integrated management and sustainable development of coastal areas and the marine environment under their national jurisdiction’.
Chapter 17 also provides that coastal States ‘should undertake measures to maintain biological diversity and productivity of marine species and habitats under national jurisdiction’.Footnote 130 In the Programme Area on ‘Marine environmental protection’, States committed to taking action against the degradation of the marine environment from land-based activities.Footnote 131 Under the Programme Area on ‘Sustainable use and conservation of marine living resources under national jurisdiction’, Chapter 17 confirms that coastal States should obtain the full benefits from the sustainable exploitation of marine living resources under their national jurisdiction.Footnote 132 At the same time, States committed themselves to conserving and sustainably managing these resources, including vulnerable marine ecosystems.Footnote 133
Two recurring themes throughout Chapter 17 are the need to increase scientific knowledge in relation to the management and protection of the marine environment and the need to strengthen international and regional cooperation in marine conservation.
D. 1994–2002
The outcomes of the Rio Conference were not reflected in the annual UNGA ocean resolution until 1994, when Chapter 17 of Agenda 21 was cited and the first mention of the term ‘sustainable development’ was made.Footnote 134 In addition to celebrating the entry into force of UNCLOS the previous month, the 1994 resolution ended the repetition of the mantra ‘deeply concerned at the current state of the marine environment’, which had been included in the resolutions every year since 1988.
At the first CBD COP in 1994, the ‘conservation and sustainable use of coastal and marine biological diversity’ was identified as a programme priorityFootnote 135 and placed on the medium-term programme of work for the COP from 1995 to 1997.Footnote 136 At CBD COP 2 in 1995, the parties adopted the ‘Jakarta Mandate on Marine and Coastal Biological Diversity’, a global consensus on the importance of marine and coastal biological diversity.Footnote 137 The Jakarta Mandate set out a framework for global action on the conservation of marine and coastal biological diversity, and established a programme of work on the basis of five thematic areas: integrated marine and coastal area management; marine and coastal protected areas; sustainable use of coastal and marine living resources; mariculture; and alien species.Footnote 138 The Ministerial Segment of that meeting ‘reaffirm[ed] that there is a critical need for the Conference of the Parties to address the conservation and sustainable use of marine and coastal biological diversity, and urge[d] Parties to initiate immediate action to implement the decisions adopted on this issue’.Footnote 139
In 1995, at the UNGA, aside from a mention of the fundamental importance of UNCLOS for the ‘sustainable use and development of the seas and oceans and their resources’, the annual resolution did not make reference to the protection of the marine environment or the conservation of living resources.Footnote 140 Environmental concerns re-emerged in 1996 when the UNGA made its first of many mentions of pollution from land-based activities, noting the Washington Declaration and the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities (the ‘Global Programme of Action’).Footnote 141
In 1997, for the first time, the annual UNGA resolution was given the title ‘Oceans and the Law of the Sea’, rather than simply ‘Law of the Sea’. This change perhaps reflected the evolution of the resolutions from their initial focus on UNCLOS itself and matters relating to its implementation to a more comprehensive review of all matters relating to the ocean, whether legal or not. Also in 1997, the UNGA held its 19th special session on the Earth Summit + 5 to review progress since the Rio Conference and to ‘re-energise’ its commitment to the goals and objectives that emerged from Rio.Footnote 142 The special session produced the Programme for the Further Implementation of Agenda 21, which included a section on ‘Oceans and seas’. The Programme for Further Implementation called for cooperation in the protection and sustainable use of the oceans and seas; action to prevent unsustainable fishing; and the need for enhanced scientific data relating to the marine environment.Footnote 143
At CBD COP 4 in 1998, the Jakarta Mandate on marine and coastal biological diversity was included as one of three programmes of work, which would continue for all future COPs up to and including 2019.Footnote 144 The parties also adopted a dedicated decision on conservation and sustainable use of marine and coastal biological diversity, including a programme of work arising from the Jakarta Mandate.Footnote 145 The primary basis for the programme of work was at the national and local level, with parties urged to develop national strategies, plans and programmes in order to promote the conservation and sustainable use of marine and coastal biological diversity.Footnote 146
In 1999, the UN Commission on Sustainable Development (CSD) completed its review on the sectoral theme of ‘Oceans and seas’, with its recommendations adopted through the Economic and Social Council.Footnote 147 In its report, the CSD reiterated that UNCLOS sets out the overall legal framework for all ocean activities, and that Chapter 17 of Agenda 21 ‘remains the fundamental programme of action for achieving sustainable development in respect to oceans and seas’.Footnote 148 The CSD highlighted four areas for priority action: the conservation, integrated and sustainable management and use of marine living resources and their ecosystems; the prevention of pollution and marine environmental degradation from land-based and other activities; better scientific understanding of the oceans and seas and their resources; and encouraging the steps necessary for the implementation of UNCLOS and Agenda 21, including providing assistance to developing countries.Footnote 149 The CSD's findings were welcomed by the UNGA in a dedicated resolution,Footnote 150 as well as in the 1999 annual ocean resolution.Footnote 151
At CBD COP 5 in 2000, the programme of work on marine and coastal biological diversity was included on the agenda as a ‘thematic area’.Footnote 152 Decision V/3 containing a progress report on the implementation of that programme of work was adopted by the parties, which, amongst other matters, urged parties to take action to protect coral reefs, and identified priority areas for action on coral bleaching caused by global warming.Footnote 153
With respect to environmental issues, the annual UNGA resolution in 2000 had a twin focus on illegal, unreported and unregulated (IUU) fishing and the protection of the marine environment of coastal areas.Footnote 154 The resolution expressed deep concern at the degradation of the marine environment ‘particularly from land-based sources’ and emphasised the importance of the implementation of Part XII of UNCLOS to protect and preserve the marine environment ‘including coastal areas’.Footnote 155 It called upon States to prioritise action on land-based pollution and acknowledged the need to build national capacity in developing countries to fulfil the Global Programme of Action and to achieve the integrated management of the coastal zone.Footnote 156
In 2001, the resolutions began to take their current form, divided by subheadings into different themes, including Section XI on ‘Marine environment, marine resources and sustainable development’.Footnote 157 The 2001 resolution again expressed deep concern at the degradation of the marine environment, ‘particularly from land-based sources’. It also encouraged coastal States to enhance their national capacity and marine management systems to promote integrated marine management, the protection of the marine environment and the sustainable development of marine resources.Footnote 158
E. Rio+10 to Rio+20
The 2002 UNGA resolution welcomed the Johannesburg Plan of Implementation that was adopted at the 2002 World Summit on Sustainable Development (Rio+10).Footnote 159 The Johannesburg Plan of Implementation stressed that ‘oceans, seas, islands and coastal areas form an integrated and essential component of the Earth's ecosystem’.Footnote 160 In the Plan, States agreed to the further implementation of Chapter 17 of Agenda 21, including by ‘maintain-[ing] the productivity and biodiversity of important and vulnerable marine and coastal areas, including in areas within and beyond national jurisdiction’.Footnote 161 The Plan also emphasised the need to prioritise efforts relating to the protection of the marine environment from land-based pollution.Footnote 162 The 2002 resolution, in addition to focusing on land-based pollution, also highlighted the need to take measures to protect and preserve coral reefs and to halt the loss of marine biodiversity, including, for the first time in an annual resolution, the establishment of marine protected areas.Footnote 163
Marine and coastal biological diversity was again featured as a thematic programme of work at the 6th CBD COP in 2002.Footnote 164 Decision VI/3 on marine and coastal biological diversity, like the decision adopted at the previous COP in 2000, emphasised the need for action and information gathering in relation to the protection of coral reefs.Footnote 165
The 2003 UNGA resolution again called on States to prioritise action on land-based pollution, and repeated concerns regarding the threats to marine biodiversity and vulnerable ecosystems.Footnote 166 It also contained the first mention in an annual resolution of ‘biodiversity in areas beyond national jurisdiction’, calling for an urgent investigation to better address the threats and risks it faces.Footnote 167 As well as repeating the call to prioritise action on land-based pollution, the 2004 resolution again referenced the threats faced by biodiversity beyond national jurisdiction and decided to establish an Ad Hoc Open-ended Informal Working Group (BBNJ Working Group) ‘to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction’.Footnote 168 From this point onwards, the annual resolutions devoted increasing attention to this issue.
At CBD COP 7 in 2004, the parties identified the programme of work on marine and coastal biological diversity as reflecting global priorities and decided to extend it for a further six years in order to complete the work.Footnote 169 Decision VII/5 noted that marine and coastal biodiversity is under ‘rapidly increasing and locally acute human pressure’ with the result that such biodiversity is declining or being lost.Footnote 170 The Decision gave as one of the reasons for this threat, the low level of development of marine and coastal protected areas and urged parties to make efforts to adopt ‘as a matter of high priority’ marine and coastal protected areas, as part of a marine and coastal management framework.Footnote 171 It also urged parties to ‘urgently address’ all threats, including from land pollution, to maximise the effectiveness of protected areas and networks.Footnote 172 Reflecting the developments at the UNGA, for the first time, the CBD COP noted the increasing risks to biodiversity in marine areas beyond national jurisdiction and agreed that there was an urgent need for international cooperation and action in that regard.Footnote 173
In 2005, the UNGA resolution turned its attention to the issue of marine debris, and urged States to take waste management measures in the coastal zone to prevent pollution from marine debris.Footnote 174 It also repeated the themes of land-based pollution and threats to marine biodiversity and vulnerable marine ecosystems including coral reefs.Footnote 175 Despite several references in the 1989 special report of the Secretary-General and in Agenda 21, the annual resolutions did not include discussion of the effects of climate change on the ocean until 2006. In the 2006 resolution, the UNGA expressed concern over the ‘projected adverse effects of anthropogenic and natural climate change and ocean acidification on the marine environment and marine biodiversity’.Footnote 176 The 2006 resolution repeated once again themes including the need for cooperation and capacity building, enhanced marine scientific knowledge, and concerns regarding threats to vulnerable marine ecosystems, including corals.Footnote 177 It also introduced a new section with the subheading ‘Marine biodiversity’, which addressed both biodiversity beyond national jurisdiction, and within national jurisdiction, including work done under the CBD, and encouraged States to take action to protect coral reefs.
In relation to marine and coastal biological diversity, the 8th CBD COP in 2006 focused on deep seabed genetic resources and integrated marine and coastal area management.Footnote 178 Reflecting the new focus at the UNGA on BBNJ, the CBD parties adopted Decision VIII/21 on the conservation and sustainable use of deep seabed genetic resources beyond the limits of national jurisdiction.Footnote 179 Due to the limited jurisdictional scope of the CBD, which only includes components of biodiversity within national jurisdiction, the Decision recognised that UNCLOS regulates activities in marine areas beyond national jurisdiction, but urged parties to cooperate to promote the conservation and sustainable use of BBNJ.Footnote 180 Although by 2006 the CBD COP was directing increased attention towards BBNJ issues, the focus remained on the conservation and sustainable use of marine and coastal biodiversity within national jurisdiction. That year the parties adopted Decision VIII/22, which focused on enhancing effective implementation of integrated marine and coastal area management.Footnote 181 Decision VIII/24 urged parties to increase the effective protection and management of marine ecosystems.Footnote 182
In 2007, at the UNGA, the same themes and concerns were repeated and joined by a new focus on climate change and the marine environment.Footnote 183 The 2007 resolution again called on States to implement the Global Programme of Action and encouraged ‘increased emphasis on the link between freshwater, the coastal zone and marine resources in the implementation of international development goals’.Footnote 184 Reflecting a theme that had appeared regularly in previous years, the resolution urged States to adopt an ecosystem approach, and encouraged States to take all measures in accordance with international law to address impacts on marine ecosystems within and beyond areas of national jurisdiction.Footnote 185
The 2008 resolution gave new attention to the adverse economic, social and environmental impacts caused by physical alteration and destruction of marine habitats as a result of land-based and coastal development activities, in particular land reclamation.Footnote 186 It also called on States to consider the further development of environmental impact assessment processes in relation to activities under their jurisdiction or control that may cause substantial pollution or significant and harmful changes to the marine environment.Footnote 187 The resolution recognised that ‘most of the pollution load of the oceans emanates from land-based activities and affects the most productive areas of the marine environment’ and again called upon States to implement the Global Programme of Action as a matter of priority.Footnote 188 It also called on States to ensure that urban and coastal development activities are carried out in a manner that mitigates harmful environmental effects.Footnote 189
At CBD COP 9 in 2008, marine and coastal biodiversity was listed on the programme as one of several ‘other substantive issues arising from decisions of the conference of the parties and strategic issues for evaluating progress’.Footnote 190 Decision IX/20 also focused on the new concept of Ecologically or Biologically Significant Marine Areas in Need of Protection (EBSAs) and adopted the scientific criteria for their identification.Footnote 191 It urged parties to apply the criteria to identify EBSAs in order to achieve aims, including the establishment of representative networks of marine protected areas.Footnote 192
The 2009, 2010 and 2011 UNGA resolutions repeated the statement in the 2008 resolution regarding the proportion of pollution emanating from land and affecting the most productive areas of the marine environment, as well as the need to protect coastal areas from the effects of development.Footnote 193
At the CBD COP in 2010, marine and coastal biodiversity returned to the programme as an ‘issue for in-depth consideration’.Footnote 194 In Decision X/2, the parties adopted the Strategic Plan for Biodiversity 2011–2020 and the Aichi Biodiversity Targets, which included the target to protect 10 per cent of coastal and marine areas by 2020.Footnote 195 Decision X/29, adopted on marine and coastal biodiversity, encouraged and urged action from parties on a wide range of issues, including marine plastic pollution, the adoption of marine protected areas and the identification and protection of EBSAs.Footnote 196 It encouraged parties to take appropriate measures to improve the sustainability of harvesting of coastal and inshore marine resources and requested parties to mitigate the negative impacts and risk of human activities to marine and coastal biodiversity.Footnote 197 The Decision also urged parties to stop the degradation and loss of ecologically important ecosystems and habitats due to coastal development and to facilitate their recovery and restoration.Footnote 198
F. Rio+20 to 2020
In 2012, the United Nations Conference on Sustainable Development (Rio+20) produced the outcome document The Future We Want, which was endorsed by the UNGA.Footnote 199 In The Future We Want, the world's ‘Heads of State and Government and high-level representatives’ reaffirmed their commitment to sustainable development and to the implementation of the Rio Declaration, Agenda 21, the Programme for the Further Implementation of Agenda 21, and the Johannesburg Programme of Implementation.Footnote 200 The Future We Want repeated the statement from the Johannesburg Plan of Implementation that ‘oceans, seas and coastal areas form an integrated and essential component of the Earth's ecosystem’.Footnote 201 Under the thematic area ‘Oceans and Seas’, States committed:
to protect, and restore, the health, productivity and resilience of oceans and marine ecosystems, to maintain their biodiversity, enabling their conservation and sustainable use for present and future generations, and to effectively apply an ecosystem approach and the precautionary approach in the management, in accordance with international law, of activities having an impact on the marine environment, to deliver on all three dimensions of sustainable development.Footnote 202
States also committed to take action to achieve significant reductions in marine debris, and to effectively implement the Global Programme of Action.Footnote 203
At CBD COP 11 in 2012, marine and coastal biodiversity was listed on the programme as a stand-alone agenda item.Footnote 204 Decision XI/18, on marine and coastal biodiversity, referred to The Future We Want and acknowledged the current and potential role that marine and coastal ecosystems play in supporting sustainable development and poverty eradication.Footnote 205 The Decision covered a range of issues, including coral bleaching, ocean acidification, marine debris, environmental impact assessment and marine spatial planning.Footnote 206
The 2012 UNGA annual resolution welcomed The Future We Want and, along with every subsequent resolution up to and including 2020, ‘noted with satisfaction’ that it recognised that ‘the oceans, seas and coastal areas form an integrated and essential component of the Earth's ecosystem’.Footnote 207 The resolutions emphasised the threats posed by marine debris and other forms of land-based pollution to the coastal and marine environment and urged States to take action,Footnote 208 and repeated the annual statement initiated in 2008 that ‘most of the pollution load of the oceans emanates from land-based activities and affects the most productive areas of the marine environment’.Footnote 209 Each of these resolutions also called upon all States to ensure that urban and coastal development, including land-reclamation, is carried out in a manner that mitigates the negative consequences on marine habitat and the environment.Footnote 210
The 12th CBD COP in 2014, discussed marine and coastal biodiversity as one of several ‘other items resulting from the Programme of Work of the Convention’.Footnote 211 Decision XII/22, on EBSAs, recalled the sovereignty of coastal States over their territorial sea and their sovereign rights in the EEZ and continental shelf, and encouraged and invited parties to describe areas meeting the EBSA criteria, and to undertake scientific and technical analysis of the status of marine and coastal biodiversity of such areas.Footnote 212 In Decision XII/23, on other marine and coastal biodiversity matters, the parties adopted the Priority Actions to Achieve Aichi Biodiversity Target 10 for Coral Reefs and Closely Associated Ecosystems.Footnote 213 Pursuant to the Priority Actions, parties were encouraged to take a range of actions, including strengthening existing sectoral and cross-sectoral management to address local stressors, such as overfishing, destructive fishing practices, land- and sea-based pollution, coastal development, tourism and recreational use.Footnote 214
In 2015, the UN Sustainable Development Summit adopted the 2030 Agenda for Sustainable Development, which has at its core the 17 Sustainable Development Goals (SDGs).Footnote 215 The 2030 Agenda was adopted by the UNGA by consensus, and included a dedicated oceans goal, Goal 14: ‘Conserve and sustainably use the oceans, seas and marine resources for sustainable development’. Amongst the ten targets comprising Goal 14, target 14.1 calls on States to ‘prevent and significantly reduce marine pollution of all kinds, in particular from land-based activities, including marine debris and nutrient pollution’ by 2025.Footnote 216 The other targets relate to the sustainable management and protection of marine and coastal ecosystems; minimising and addressing the impacts of ocean acidification; sustainable fishing; conserving ten per cent of coastal and marine areas; increasing economic benefits to small island developing States and least developed countries from the sustainable use of marine resources; increasing scientific knowledge; and enhancing the conservation and sustainable use of the ocean through the implementation of international law as reflected in UNCLOS.Footnote 217 The UNGA's commitment to conserve and sustainably use the ocean and its resources as reflected in Goal 14 has been reaffirmed in the subsequent annual ocean resolutions.Footnote 218
The CBD COP in 2016, adopted four Decisions on marine and coastal biodiversity, relating specifically to marine spatial planning and training initiatives,Footnote 219 marine debris and anthropogenic underwater noise,Footnote 220 biodiversity in cold-water areas within the jurisdictional scope of the CBDFootnote 221 and EBSAs.Footnote 222 Among many other calls to action, parties were encouraged to apply marine spatial planning within national jurisdiction,Footnote 223 urged to take measures to prevent and mitigate the potential adverse impacts of marine debris on marine and coastal habitatsFootnote 224 and encouraged to take action to protect biodiversity in cold-water areas within their jurisdiction.Footnote 225
In 2017, the UNGA endorsed the declaration ‘Our Ocean, Our Future, Call for Action’ that had been adopted at the 2017 United Nations Conference to Support the Implementation of Sustainable Development Goal 14 of the 2030 Agenda for Sustainable Development.Footnote 226 The declaration reiterates States’ commitment to the timely achievement of the SDGs and set out a list of actions to be taken on an urgent basis. These actions are focused on cooperation; ocean education; enhancement of scientific knowledge; reduction of pollution, particularly from land-based sources, and efforts to reduce plastic waste; the use of area-based management tools and other integrated management approaches; climate change resilience; sustainable fisheries management and ending destructive and IUU fishing; promoting ocean-based economies; capacity-building in developing countries; and participation in the negotiations towards the BBNJ instrument.Footnote 227
At CBD COP 14 in 2018, Decision 14/10 was adopted on marine and coastal biodiversity, urging parties to increase their efforts with regard to avoiding, minimising and mitigating the impacts of marine debris on marine and coastal biodiversity and habitats, as well as addressing the potential impacts of deep-seabed mining on marine biodiversity and protecting biodiversity in cold-water areas.Footnote 228
The 2017–20 annual oceans resolutions reaffirmed the importance of the Our Ocean, Our Future declaration ‘in demonstrating the collective will to take action to conserve and sustainably use our oceans, seas and marine resources for sustainable development’.Footnote 229 The 2017–20 resolutions also expressed ‘deep concern’ at the adverse economic, social and environmental impacts stemming from land-based and coastal development activities, a statement that had been included in the annual resolution every year since 2008. In 2020, the resolution highlighted issues including the protection of coral reefs, the prevention of land-based pollution and marine debris and the need to protect and restore coastal blue carbon ecosystems.Footnote 230 Welcoming the continued work on the implementation of the Global Programme of Action, the 2020 resolution encouraged ‘increased emphasis on the link between fresh water, the coastal zone and marine resources’ in the implementation of the SDGs.Footnote 231
VII. Establishing the Community Interest in the Protection of the Marine Environment under National Jurisdiction
As noted at the outset, the question under consideration here is the identification of the nature and scope of community interests in the protection of the marine environment as a whole, and particularly in AUNJ. This summary of the main statements of community interests at the multilateral level in relation to the protection and preservation of the marine environment in AUNJ in the period 1982 to 2020 has revealed numerous key repeated themes. Over time, the number of mentions of the protection of the marine environment, and the length of the discussion devoted to the issue, have increased significantly. This shift reflects a growth in concern for the protection of the marine environment on the part of the States involved in the discussions and adoption of these instruments. In terms of the marine environment in general, over the period studied, the documents and decisions consistently raise, in particular, the need to prevent marine pollution, primarily from land-based sources, ships and dumping; the need to protect marine biodiversity and to conserve living marine resources; and the obligation to cooperate towards each of these goals.
It will be recalled that the third preambular paragraph of UNCLOS recognises that the ‘problems of ocean space are closely interrelated and need to be considered as a whole’. The need for an integrated approach to ocean management has been heavily emphasised in the annual UNGA resolutions and the reports of the UN Secretary-General on the protection and preservation of the marine environment, as well as in Agenda 21, the Johannesburg Plan of Implementation, The Future We Want and SDG 14. Importantly, these developments demonstrate that the international community's interests are not confined to the marine environment in ABNJ. Rather, as the evidence presented above makes clear, the international community's interest also extends to the protection of the marine environment in areas under the jurisdiction of States. In this regard, the ‘community interest’ can be said to be not merely in the protection of the marine environment but also in ensuring the responsibility of coastal States to protect and preserve the marine environment in areas under their jurisdiction.
The most direct evidence of this community interest is seen in Agenda 21 and its dedicated section explicitly urging coastal States to take measures to protect the marine environment under their jurisdiction. While this direct call to coastal States has not been seen again in the annual UNGA resolutions, these resolutions have, nevertheless, repeated and reinforced prominent themes relating to environmental issues, including those affecting the marine environment in AUNJ. Taken together, these action plans and resolutions provide cogent evidence of what the international community believes its interests in the marine environment to be.
Importantly, in the context of discussing the community interest in the protection of the marine environment in AUNJ, since 2000, the annual UNGA ocean resolutions have persistently called on States to prioritise action on marine pollution from land-based sources. Land-based pollution predominately affects the marine environment of the coastal zone, and its minimisation, together with that of harm from coastal development, has become one of the most prominent themes of the annual resolutions. Similar admonitions are found in the references to the health of corals, referred to consistently and prominently in UNGA resolutions and CBD Decisions since the year 2000. Indeed, the international community's interest in the prevention, reduction and control of land-based pollution has seen it take pride of place as the first target articulated in SDG 14.
However, perhaps the clearest indication of the international community's interest in the protection of the marine environment within national jurisdiction is evidenced in the work of the CBD COP whose Decisions span a wide range of marine biodiversity matters, from the protection of corals and the adoption of marine protected areas, to the reduction and elimination of marine debris and the degradation of coastal environments from human activities, and more broadly to issues relating to integrated coastal and marine management.
VIII. the consequences of a finding of community interest in the protection of the marine environment within national jurisdiction
While the above analysis has established that the international community indeed has an interest in the protection of the marine environment within the national jurisdiction of other States, the question of the rights and duties for States, if any, that flow from this conclusion remains.
Community interests do not necessarily give rise to binding legal obligations for States. Rather they indicate matters that are of concern to the international community, that may or may not be protected by binding obligations found in treaties or customary international law. This means that the finding that the international community has an interest in the protection of the marine environment within national jurisdiction does not change the character of the primary obligation by which the coastal State was already bound. However, it may have implications for the rights of other States to invoke the coastal State's responsibility in the event that it fails to meet its obligation to protect the marine environment under its jurisdiction.
The importance of community interests to the international community means that an obligation that protects a community interest may have higher status under international law than other customary or conventional obligations. In such cases, the obligation protecting the community interest is an obligation erga omnes or erga omnes partes.Footnote 232 This characterisation means that not only is there a community interest in the protection of the particular public good, but also that all States or all parties to the relevant treaty have a legal interest in its protection, which can give States the right to enforce the obligation even without a ‘direct’ or personal interest.Footnote 233
Therefore, depending on the status of the primary obligation protecting the community interest, States without a direct interest may have the right to invoke the responsibility of the coastal State for failing to protect its own marine environment. While the coastal State's obligations under international law are not necessarily affected, this altered conception of the marine environment within national jurisdiction—from being under the exclusive purview of the coastal State to being a matter of interest to the international community—may trigger enhanced implementation and compliance with the obligations that were already in place. A similar effect could also stem from the elucidation of the right of third States to take enforcement action against a non-compliant coastal State, whether or not such enforcement action is forthcoming. The possibility of facing inter-State enforcement may encourage States to comply more fully with their duties of environmental protection.Footnote 234
Whether such effects would be realised in practice remains to be seen. As a general rule, States are reluctant to invoke the responsibility of other States through ‘adjudicational-legal’ mechanisms, preferring to settle disputes through ‘diplomatic-political’ means if possible.Footnote 235 Very few inter-State cases have been brought concerning the protection of the marine environment, despite the availability of compulsory binding third party dispute settlement procedures in UNCLOS. States have also appeared reticent to take other forms of enforcement action against other States for breaches of international marine environmental law.
If States are reluctant to take formal enforcement measures against other States when they have suffered a legal injury, the same applies even more so with respect to breaches of international law not directly affecting that particular State, or indeed any other State at all. There are only a few instances of States seeking to bring an inter-State case on the basis of an alleged breach of an obligation erga omnes (partes).Footnote 236 Several of these cases failed at the jurisdiction or admissibility stage, but more recent cases have had greater success. In its 2012 judgment in the Obligation to Extradite caseFootnote 237 and its 2020 provisional measures order in the Gambia v Myanmar case, the ICJ found that any State Party to the Genocide Convention has the right to invoke the responsibility of another party to that Convention ‘with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes’.Footnote 238 The ongoing case between the Gambia and Myanmar concerning Myanmar's treatment of the Rohingya people present on the territory of Myanmar is a notable and rare example of a case where the alleged harm took place on the territory of the alleged delinquent, and did not affect the direct interests of the Gambia. The Gambia did not base its claim on a direct interest in the case, but rather claimed to be acting as a member of the international community and a party to the Genocide Convention in order to protect the rights of the Rohingya group present in Myanmar.Footnote 239 More recently, as of April 2021, South Korea was believed to be considering bringing a case before ITLOS concerning Japan's planned release of waste water from the Fukushima nuclear plant into the Pacific Ocean.Footnote 240 Although South Korea and Japan are neighbouring States, it has been reported that the release does not pose a risk to the marine environment under the jurisdiction of South Korea.Footnote 241 While the existing State practice cannot support a claim that there is a trend towards more formal enforcement of obligations erga omnes (partes), the ICJ does appear increasingly willing to accept such claims.
It is not possible to predict the practical consequences of the finding made in this article that the international community has an interest in the protection of the marine environment within national jurisdiction. There is no indication to suggest that States would be eager to enforce a breach of a coastal State's obligation to protect its own marine environment. However, with the ever-increasing interconnectedness of States due to migration, technology and globalisation generally, and the increasing and increasingly severe global environmental threats, it is no longer the case that States are only concerned about what takes place within their own territory or to their own nationals. While this interconnectedness is not a recent feature of international relations, the rapid escalation of global environmental threats, the effects of which are being felt ever more strongly around the world, has accelerated the development of community interests in the protection of the environment. The ocean stands out as a particular example of a space in which the attention of the international community has recently been drawn to the effects of the multitude of environmental threats it faces, and the need to take urgent action to protect it.
IX. Conclusion
From the above it can be concluded that in forums where States have had the opportunity to declare the matters of interest to them, issues concerning either exclusively or particularly the protection of the marine environment within national jurisdiction have consistently arisen. These repeated indications fulfil the subjective test for the identification of community interests, in that they reflect matters that the international community has a shared interest in. This article argues that these statements, either explicit or implicit, over the course of the past three to four decades clearly demonstrate that the international community does have an interest in the protection of the marine environment as a whole, including within national jurisdiction. What remains to be established is what legal or normative form, if any, these interests take, and consequently what implications may arise for third States to take action on behalf of the international community to protect the marine environment within national jurisdiction. These issues can now be addressed more closely and authentically given the demonstrable community interest at stake in marine environmental protection within national jurisdiction.
