PROTECTION OF THE MARINE ENVIRONMENT

Introduction:Why the need to protect our marine environment?Kenya has a rich diversity of marine and coastal eco-systems.These ecosystems include mangrove wetlands, coastal forests,estuaries, sandy beaches and sand dunes, coral reefs, and seagrass beds that support a host of marine and coastal species. Theecosystems constitute an important life-support system for localcommunities. They supply vital resources that support livelihoodsand economic development. Additionally, these ecosystems maintainthe health of marine and coastal landscapes and seascapes atlarge.Sources and Types of Marine Pollution:Art of LOSC defines marine pollution as the introduction by man,directly or indirectly, of substances or energy into marine environment, includingestuaries, which result or likely to result in such deleterious effects as harm toliving resources and marine life, hazards to human health, hindrance to marineactivities including fishing and other legitimate uses of the sea, impairment ofquality for use of sea water and reduction of amenities. Most authoritative assessment of sources and types of marinepollution are produced by the joint Group of Experts onScientific Aspects of Marine Environment (GESAMP), an advisorybody established in 1969 to provide scientific advice to the UNon marine environment protection.

Marine pollution occurs when harmful, or potentially harmful, effects resultfrom the entry into the ocean of chemicals, particles, industrial,agricultural and residential waste, noise, or the spread of invasiveorganisms.

The pollution often comes from nonpoint sources such asagricultural runoff, wind-blown debris and dust. Nutrient, a form ofwater pollution, refers to contamination by excessive inputs ofnutrients. It is a primary cause of eutrophication of surfacewaters, in which excess nutrients, usually nitrogen orphosphorus, stimulate algal growth.

Pollution is often classed as point source or nonpoint sourcepollution. Point source pollution occurs when there is a single,identifiable, and localized source of the pollution. An exampleis directly discharging sewage and industrial waste into theocean. Pollution such as this occurs particularly in developingnations. Nonpoint source pollution occurs when the pollution comes fromill-defined and diffuse sources. These can be difficult toregulate. Agricultural runoff, dust and wind-blown debris areprime examples.

Types of Pollutiona) Acidification

The oceans are normally a natural carbon sink, absorbing carbon dioxide from the atmosphere. Because the levels of atmospheric carbon dioxide are increasing, the oceans are becoming more acidic. The potential consequences of ocean acidification are not fully understood, but there are concerns that structures madeof calcium carbonate may become vulnerable to dissolution, affecting corals and the ability of shellfish to form shells.

b) EutrophicationEutrophication is an increase in chemical nutrients, typically compounds containing nitrogen or phosphorus, in an ecosystem. It can result in an increase in the ecosystem's primary productivity(excessive plant growth and decay), and further effects including lack of oxygen and severe reductions in water quality, fish, and otheranimal populations.

The biggest culprit are rivers that empty into the ocean, andwith it the many chemicals used as fertilizers in agriculture aswell as waste from livestock and humans. An excess of oxygendepleting chemicals in the water can lead to hypoxia and thecreation of a dead zone.

Estuaries tend to be naturally eutrophic because land-derivednutrients are concentrated where runoff enters the marineenvironment in a confined channel. In addition to land runoff,atmospheric anthropogenic fixed can enter the open ocean. A studyin 2008 found that this could account for around one third of theocean’s external (non-recycled) nitrogen supply and up to threeper cent of the annual new marine biological production. It hasbeen suggested that accumulating reactive nitrogen in theenvironment may have consequences as serious as putting carbondioxide in the atmosphere.

One proposed solution to eutrophication in estuaries is torestore shellfish populations, such as oysters. Oyster reefsremove nitrogen from the water column and filter out suspendedsolids, subsequently reducing the likelihood or extent of harmfulalgal blooms or anoxic conditions. Plastic debris

Marine debris is mainly discarded human rubbish which floats on,or is suspended in the ocean. Eighty percent of marine debris isplastic- a component that has been rapidly accumulating since theend of World War II. The mass of plastic in the oceans may be ashigh as one hundred million metric tons.

Discarded plastic bags, six pack rings and other forms of plasticwaste which finish up in the ocean present dangers to wildlifeand fisheries. Aquatic life can be threatened throughentanglement, suffocation, and ingestion. Fishing, usually madeof plastic, can be left or lost in the ocean by fishermen. Knownas ghost nets, these entangle fish, dolphins, sea turtles,sharks, dugongs, crocodiles, seabirds, crabs, and other creatures,restricting movement, causing starvation, laceration and infection, and, inthose that need to return to the surface to breathe, suffocation.

Plastic debris, when bulky or tangled, is difficult to pass, andmay become permanently lodged in the digestive tracts of theseanimals, blocking the passage of food and causing death throughstarvation or infection.

Plastics accumulate because they don't biodegrade in the way manyother substances do. They will photo degrade on exposure to thesun, but they do so properly only under dry conditions, and waterinhibits this process. In marine environments, photo degradedplastic disintegrates into ever smaller pieces while remainingpolymers, even down to the molecular level. When floating plasticparticles photo degrade down to zooplankton sizes, jellyfishattempt to consume them, and in this way the plastic enters theocean food chain. Many of these long-lasting pieces end up in thestomachs of marine birds and animals including sea turtles, andblack-footed albatross. Toxins

Apart from plastics, there are particular problems with othertoxins that do not disintegrate rapidly in the marineenvironment. Examples of persistent toxins are PCBs, DDT,pesticides, furans, dioxins, phenols and radioactive waste. Heavymetals are metallic chemical elements that have a relatively highdensity and are toxic or poisonous at low concentrations.Examples are mercury, lead, nickel, arsenic and cadmium. Suchtoxins can accumulate in the tissues of many species of aquaticlife in a process called bioaccumulation. They are also known toaccumulate in benthic environments, such as estuaries and baymuds.

c) Underwater noise

Marine life can be susceptible to noise or sound pollution fromsources such as passing ships, oil exploration seismic surveys,and naval low-frequency active sonar. Sound travels more rapidlyand over larger distances in the sea than in the atmosphere.Marine animals, such as cetaceans, often have weak eyesight, andlive in a world largely defined by acoustic information. Thisapplies also to many deeper sea fish, who live in a world ofdarkness. Between 1950 and 1975, ambient noise in the oceanincreased by about ten decibels (that is a tenfold increase).Noise also makes species communicate louder, which is called theLombard vocal response. Whale songs are longer when submarine-detectors are on. If creatures don't "speak" loud enough, their

voice can be masked by anthropogenic sounds. These unheard voicesmight be warnings, finding of prey, or preparations of net-bubbling. When one species begins speaking louder, it will maskother species voices, causing the whole ecosystem to eventuallyspeak louder.

According to the oceanographer Sylvia Earle, "Undersea noisepollution is like the death of a thousand cuts. Each sound initself may not be a matter of critical concern, but taken alltogether, the noise from shipping, seismic surveys, and militaryactivity is creating a totally different environment than existedeven 50 years ago. That high level of noise is bound to have ahard, sweeping impact on life in the sea.

THE LEGAL FRAMEWORK: LOSC AND REGIONAL TREATIESLAW OF THE SEA CONVENTION (LOSC):

The LOSC supplies overarching legal framework for marineenvironmental protection which is supplemented by multitude ofother treaties and soft law instruments. As a result of LOSC andthe development of mutually supporting rules in global andregional treaties, there has been significant shift in theapproach of regulating marine pollution. The core provisions ofthe LOSC relevant to marine environmental protection are found inpart X11, however there are references made throughout theconvention to the need to protect the marine environment. Art 192establishes a fundamental duty of parties to protect and preservethe marine environment. This duty is elevated above the sovereignright of states to exploit their natural resources as Art 193provides that this right must be exercised by states inaccordance with the duty to protect and preserve the marineenvironment.In order to achieve the goal of marine environmental protection,part X11 requires states to cooperate on a global and, asappropriate, regional basis, directly or through competentinternational organizations in formulating international rules,standards, and recommended practices and procedures.

The LOSC addresses vessel-source pollution in Article 211. Theprovision serves two main purposes:-

i) It requires states acting through competent InternationalOrganization that is IMO to establish international rulesand standards to prevent reduce and control pollutionfrom vessels.

ii) It establishes jurisdictional framework so that suchstandards can be effectively enforced not only by flagstates but also port states and coastal states.

REGIONAL TREATIES:This is another category of framework treaties that seek toaddress marine pollution in its various forms and sources areregional agreements. LOSC makes reference to the need to adoptregional rules which has been achieved primarily through regionalarrangements under the umbrella of the United Nations DevelopmentProgramme (UNEP) and Regional Sea Programme (RSP). Marine pollution treaties are divided into four categories:

a) General multilateral treaties,b) Regional treaties,c) Bilateral treaties and d) The LOSC

Of the general multilateral treaties, there are half a dozenconcerned with pollution from ships and one concerned withdumping. There are no general multilateral treaties dealing withmarine pollution from land based sources or seabed activitiesalthough some soft law exist. The treaties concerned withpollution from ship were all adopted under the auspices of theInternational OPERATIONAL VESSEL-SOURCE POLLUTION1.1 INTRODUCTION:

The topic of this report is coastal State jurisdiction overvessel source pollution. The legal investigation I propose toundertake concerns first of all the framework under the United

Nations Convention on the Law of the Sea 1 (hereinafter LOSConvention) Part XII for the protection and preservation of themarine environment from such pollution.

Due to the global nature of shipping, coastal State jurisdictionover vessel source pollution must be considered under generalinternational law. Thus, the international legal framework forthis topic of discussion is provided by the relevant provisionsof Part XII of the LOS Convention.

This topic is the large. This raises the importance to prevent,reduce and control marine pollution

2.2 Vessel source pollution

There was in fact little legal concern with pollution of theseas until the 1960s. This situation changed prompted by manysevere accidents related to oil transport. The disasters ofTorrey Canyon and Amoco Cadiz brought attention to the needof improved protection of the marine environment. Forexample, in Norway, the blow-outs from oil wells in the Ekofiskfield in 1977 resulted in large oil spills in the North Sea.

The response of international law was already brewing.Potential harm from shipping led to international rules thataimed to limit environmental consequences. Most important wasthe adoption of the 1973 International Convention for thePrevention of Pollution from Ships with the 1978 Protocol alsoreferred to as MARPOL 73/78)

However, the development of the global legal framework topreserve and protect the environment was among the key issuesat the Third United Nations Conference on the Law of the Sea(hereinafter UNCLOS III) and the resultant LOS Convention. PartXII sets out general as well as more specific rules forprotecting and preserving the marine environment, includingthe coastal State’s right and duties to regulate vessel sourcepollution.

2.2.1 ‘Pollution’ under the LOS Convention

Article 1(1) (4) of the LOS Convention defines ‘pollution of themarine environment’ as:

‘…the introduction by man, directly or indirectly, of substances or energy into themarine environment, including estuaries, which results or is likely to result insuch deleterious effects as harm to living resources and marine life, hazards tohuman health, hindrance to marine activities, including fishing and otherlegitimate uses of the sea, impairment of quality for use of sea and water andreduction of amenities’.

The criterion determining the fact of pollution is theconsequence ensuing as a result of introducing a pollutantinto the marine environment. According to the definition,only human behavior can cause marine pollution. Furthermore,how substances are introduced to the environment is irrelevant.Both direct and indirect influence is included. There is nodoubt that oil released from ships qualifies as ‘pollution’under the definition.

Questions can be asked whether introduction of marine organismscaused by ballast water procedures fulfils the definition.Living organisms or pathogens cannot be considered as ‘substancesor energy’ in the terminology of LOS Convention. This problem isaddressed specifically in Article 196 and differentiates theproblem of harmful introduction of alien species fromproblems relating to pollution in its paragraph 2. Implicitly,the LOS Convention recognizes that these are two differentproblems. Consequently, the provisions of Part XII relatingvessel source pollution therefore do not directly apply tothe introduction of harmful alien species. This problemillustrates that coastal States may have concerns that notnecessarily can be addressed through the measures provided for

in the LOS Convention alone.13

2.2.2 Pollution from vessels as understood in this report

Although pollution from vessels can be both biological andchemical, only the latter will be in focus here. As regards tosuch pollution there is a need to differentiate between accidentsand operational discharges. The latter is deliberate and‘routine’ operations, such as tank cleaning. Most often theycan be controlled and negative impacts avoided, yet mostly byvessel personnel, thus flag State.

Accidental discharges occur when vessels collide or come indistress at sea. A lot can be done to avoid accidentaldischarges, but there will always be unfortunate circumstancesthat cause accidents to happen. Averages visualize the impactchemical pollution may have on the environment. The accidentsof Torrey Canyon and Prestige are prime examples. When an accidentoccurs, the consequences in the immediate area are severe andcause great damage. However, this is a relatively small partof the pollution from vessels. Altogether, intentionaloperational discharges from ships make up the largest part of

impact on the marine environment from vessel based pollution.14

Focus should thus be to minimize risks from regular activitythat virtually is the biggest problem.

3.4 Development of regulatory mechanisms with regard to vesselsource pollution: The role of the International MaritimeOrganization

Understanding the legal regime for protecting the marineenvironment from vessel source pollution necessitates knowledgeabout recent developments within international environmentallaw. With regard to jurisdiction over vessel source pollution,the role of the IMO cannot be underestimated. Many treatiesconcerned with pollution from vessels are adopted under theauspices of this Organization.

The important role of the IMO should not come surprisingly inlight of the LOS Convention. Many provisions in Part XII

require elaboration from the so-called ‘competent internationalorganization’. One example is Article 211(1), which reads:

‘States, acting through the competent international organization orgeneral diplomatic conference, shall establish internationalrules and standards to prevent, reduce and controlpollution of the marine environment from vessels…’(emphasisadded).

Although not specifically said anywhere in the LOS Convention,‘the competent international organization’ must be a referenceto the IMO. Many scholars seem to take this stand and it hasalso been stated by a legal study by the secretariat of IMO:

‘It is generally agreed that the term ‘competent internationalorganization’, when it is used in the singular in provisions ofthe Convention relating to international regulations and rulesapplicable to navigation, the prevention, reduction and controlof marine pollution from vessels or by dumping, refers to theInternational Maritime Organization, which is the agency of theUnited Nations with a global mandate to adopt internationalstandards in matters concerning maritime safety, efficiency ofnavigation and the prevention and control of marine pollutionfrom ships’.

Thus, the general obligation for all States to establish rulesand standards at the international level, gives IMO a key rolein the regulation of vessel source pollution under the LOSConvention. Delegating legislative powers seemed perhaps as agood alternative to a fourth conference on the law of the seawith the long years of negotiating fresh in mind.

Today, the agenda of the Organization is rather complex ascompared to the purposes provided for in Article 1 of the IMO

Convention. Changes in international shipping have also changedthe IMO. The Torrey Canyon accident was a dramatic proof of the

fact that international shipping no more could be left tochance and those regulatory efforts should be made throughcooperation.

Naturally, the main task of the IMO has been adoption oftreaties. The Organization developed a standard-setting role,first and foremost with regard to operational pollution fromvessels.

The major recent developments in IMO are the field of preventionand response to accidental pollution. With regard to preventivemeasures the most important achievements are the adoption ofrules requiring double- hull and segregated ballast tanks invessels. This process has recently been supplemented by‘Guidelines on places of refuge for ships in need of assistanceand guidelines on maritime assistance services’, these wereadopted in 2003 and are obviously prompted by the Erika andPrestige accidents. The purpose of these Guidelines is to provide aframe- work to assist coastal States when major accidentsthreaten its sea and coastline.

As regards to preparedness and response to pollution accidents,the Exxon Valdez spill initiated the OPRC Convention in 1990. Theprimary objectives were to provide for cooperation andassistance in preparing for and responding to major accidents.

The environmental risks arising from introduction of invasive species by ships’ ballast water was also recently addressed by the IMO and a diplomatic conference in 2004 adopted the International Convention for the Control and Management of

Ships’ Ballast Water and Sediments. The convention aims to minimize the potentially devastating effects of the spread of harmful aquatic organisms carried by ships’ ballast water and isthe most important treaty regulating intentional biological pollution from vessels. The short lifetime of the convention makes it nevertheless difficult to predict the effectiveness of its regulations.

Furthermore, the necessity of IMO approval is still growing.In recent years much attention has been given the protection ofspecial sea areas, inter alia, under Article 211(6) of the LOSConvention and under the IMO ‘Guidelines for the Designation ofSpecial Areas under MARPOL 73/78 and Guidelines for theIdentification and Designation of Particular- ly Sensitive Sea

Areas’.35 In both cases States act through the IMO.

The increasing value of the ocean and international shippingseems to make the division of competences even more important.No indication exists that the role of IMO with regard toregulation of international ship- ping will diminish in thefuture. Much will nevertheless depend on the Statesparticipating. However, the LOS Convention refers as well to‘general diplomatic conference’ and thereby preserves theopportunity to restore negotiations.

3.4 Development of regulatory mechanisms with regard to vesselsource pollution: The role of the International MaritimeOrganization

Understanding the legal regime for protecting the marineenvironment from vessel source pollution necessitates knowledgeabout recent developments within international environmentallaw. With regard to jurisdiction over vessel source pollution,the role of the IMO cannot be underestimated. Many treatiesconcerned with pollution from vessels are adopted under theauspices of this Organization.

The important role of the IMO should not come surprisingly inlight of the LOS Convention. Many provisions in Part XIIrequire elaboration from the so-called ‘competent internationalorganization’. One example is Article 211(1), which reads:

‘States, acting through the competent international organization orgeneral diplomatic conference, shall establish international rules andstandards to prevent, reduce and control pollution of the marineenvironment from vessels…’(emphasis added).

Although not specifically said anywhere in the LOS Convention,‘the competent international organization’ must be a reference

to the IMO. Many scholars seem to take this stand, and it hasalso been stated by a legal study by the secretariat of IMO:

‘It is generally agreed that the term ‘competent internationalorganization’, when it is used in the singular in provisions of theConvention relating to international regulations and rules applicable tonavigation, the prevention, reduction and control of marine pollution fromvessels or by dumping, refers to the International Maritime Organization,which is the agency of the United Nations with a global mandate to adoptinternational standards in matters concerning maritime safety, efficiencyof navigation and the prevention and control of marine pollution fromships’.

Thus, the general obligation for all States to establish rulesand standards at the international level, gives IMO a key rolein the regulation of vessel source pollution under the LOSConvention. Delegating legislative powers seemed perhaps as agood alternative to a fourth conference on the law of the seawith the long years of negotiating fresh in mind.

Today, the agenda of the Organization is rather complex ascompared to the purposes provided for in Article 1 of the IMO

Convention.32 Changes in international shipping have alsochanged the IMO. The Torrey Canyon accident was a dramatic proofof the fact that international shipping no more could be leftto chance and those regulatory efforts should be made throughcooperation.

Naturally, the main task of the IMO has been adoption oftreaties. The Organization developed a standard-setting role,first and foremost with regard to operational pollution fromvessels.

The major recent developments in IMO are the field of preventionand response to accidental pollution. With regard to preventivemeasures the most important achievements are the adoption ofrules requiring double- hull and segregated ballast tanks invessels. This process has recently been supplemented by‘Guidelines on places of refuge for ships in need of assistance

and guidelines on maritime assistance services’. these wereadopted in 2003 and are obviously prompted by the Erika andPrestige accidents. The purpose of these Guidelines is to provide aframe- work to assist coastal States when major accidentsthreaten its sea and coastline.

As regards to preparedness and response to pollution accidents,the Exxon Valdez spill initiated the OPRC Convention in 1990. Theprimary objectives were to provide for cooperation andassistance in preparing for and responding to major accidents.

The environmental risks arising from introduction of invasive species by ships’ ballast water was also recently addressed by the IMO and a diplomatic conference in 2004 adopted the International Convention for the Control and Management of

Ships’ Ballast Water and Sediments. The convention aims to minimize the potentially devastating effects of the spread of harmful aquatic organisms carried by ships’ ballast water and isthe most important treaty regulating intentional biological pollution from vessels. The short lifetime of the convention makes it nevertheless difficult to predict the effectiveness of its regulations.

Furthermore, the necessity of IMO approval is still growing.In recent years much attention has been given the protection of

special sea areas, inter alia, under Article 211(6) of the LOSConvention and under the IMO ‘Guidelines for the Designation ofSpecial Areas under MARPOL 73/78 and Guidelines for theIdentification and Designation of Particular- ly Sensitive SeaAreas’. In both cases States act through the IMO.

The increasing value of the ocean and international shippingseems to make the division of competences even more important.No indication exists that the role of IMO with regard toregulation of international ship- ping will diminish in thefuture. Much will nevertheless depend on the Statesparticipating. However, the LOS Convention refers as well to‘general diplomatic conference’ and thereby preserves theopportunity to restore negotiations.

THE MARPOL JURISDICTION FRAMEWORKMARPOL relies on a mixture of flag state, port state and coastalstate jurisdiction for the enforcement of its pollution controlstandards. In giving competence to port and coastal states, itmarked an important development from the traditional reliance onflag state jurisdiction.

1. FLAG STATES

At customary international law, flag states enjoy the capacity toprescribe laws relating to pollution control applicable to theirvessels, wherever those vessels may be. They may also enforcethese laws not only in their ports and in their territorial seas,but also on the high seas. Flag states capacity and flag stateresponsibility are of course quite different things, theexistence of an entitlement to exercise jurisdiction over vesselsis no guarantee that this competence will be utilized. MARPOLseeks to strengthen flag states duties, requiring flag states toadopt laws to ensure that the regulations are extended to vesselsthat it registers. Any violation of, wherever it occurs, is to beprohibited, sanctions are to be established under MARPOL the lawof flag state and in the event of a breach criminal proceedingsmust be taken. The penalties are to be adequate in severity to

discourage violations of MARPOL, and are to be equally severeirrespective of where the violations occur. Hence flag statesmust apply and enforce sanctions of equal gravity to pollutionviolations in whatever maritime space they occur, including onthe high seas. Additional flag state duties relate to theinspections of vessels and the issuing of certificates. AnInternational Oil pollution Prevention Certificate is to beissued after an initial or renewal survey.

2. PORT STATES

The inspections and certificates rules form the basis of thesystems of port state jurisdictions under MARPOL. A certificateissued in accordance with MARPOL is to be accepted by otherparties as having the same validity as a certificate issued bythem. While in a port or at a terminal a ship required to hold acertificate is subject to inspections by port state authorities.Such inspections should be limited to verifying that there is avalid certificate on board, unless there are clear grounds forbelieving that the condition of the ship, or its equipment, doesnot correspond substantially with the particulars of thecertificate. Or if a ship does not carry a valid certificate,then the port state must ensure that the ship does not sail untilit can proceed to sea without presenting an unreasonable threatof harm to the marine environment. A similar requirement applieswhere port state inspections reveals clear grounds for believingthat the master or crew are not familiar with essential shipboardprocedures relating to the prevention of pollution. Wheninspection detects violation of MARPOL or its annexes, then theport state is to forward a report to the flag state, which mustthen take action.

In summary, the system of port control should be the bestapproach for detecting violations of the MARPOL management,regardless of its flag, a vessel will need extension of MARPOLstandards to the vessels of non-parties because MARPOL requiresparties to apply the management/regime in such a way that no morefavourable treatment is given to the ship registered by statesthat are not parties to the regime. Hence port states must applyMARPOL standard to all ships calling at their ports or terminals,

a broad requirement but one which is entirely consistent with theplenary/entire or full capacity of port states to set conditionson the entry into their ports.The IMO in recent years has encouraged the adoption of a raft ofsoft –law MoU relating to port state inspections in maritimeregion throughout the world’s oceans. They are meant to lift therate and rigour of inspections to ensure that vessels do notevade MARPOL rules by calling at ports where the chance of beinginspected is small, or where the inspection regime is lenient orlax. This MoUs are signed in respect of all sea areas globally.

THE LOSC JURISDICTIONAL FRAMEWORK1. FLAG STATES

The jurisdictional competence under the LOSC has not changed.They have always enjoyed the capacity to pass pollution controllaws for their vessels. However, the LOSC does not seek toharmonize the exercise of flag state jurisdiction , with article211(2) requiring flag states to adopt laws and regulation toprevent marine pollution that at least have the same effect asthat of generally accepted international rules and standards asestablished through the competent international organizations, orgeneral diplomatic conference. Widely accepted rules, such asMARPOL, and all of its annexes which have entered into force, andhave attracted high participation, would be regarded as generallyaccepted internationally standards. In relation to enforcement jurisdiction, the LOSC does not alterthe capacity of flag states to take action to enforce pollutioncontrol standards. What is significant is that the LOSCtransforms the customary law capacity into a positive obligationif a vessel violates international pollution control standardsthen the flag state shall provide for immediate investigations,and where appropriate institute proceedings, irrespective ofwhere the violation occurred, or where the pollution caused bysuch violation has occurred. Flag states are to take appropriatemeasures to ensure that vessels flying their flag are prohibitedfrom sailing unless they can proceed to sea in compliance withinternational pollution control standards. They must also ensure

that vessels carry on board the required certificate and aresubject to periodic inspection.

2. PORT STATES

Under the LOSC ports states retain the capacity to legislate forthe prevention, reduction and control of pollution of the marineenvironment as a condition for the entry of foreign vessels intotheir ports or internal waters. They must give due publicity tosuch requirements, and communicate them to the IMO, However, theLOSC greatly expands the powers of the port states to enforcepollution standards, and a major attraction of this approach isthat it involves no interference with navigational rights andfreedoms that would be entailed by greater reliance on coastalstate jurisdiction.

Port states may take administrative measures to prevent a vesselfrom sailing, where is in violation of international standardsrelating to seaworthiness, and thereby threatens damages to themarine environment. More significantly, the LOSC extends thecapacity of port states to take proceedings against delinquentvessels. Whereas previously this was confined to taking actionfor breaches of port state regulations within the port itself, orthe ability to take action against vessels for breaches ofinternational pollution standards wherever these breaches havetaken place. However, no proceedings are to be instituted inrespect of a discharge violation in the internal waters,territorial sea, or EEZ of another state unless requested by thestate, the flag, or a state damaged or threatened by thedischarge violation.

3. COASTAL STATES

The most significant reforms in the jurisdictional regimerelating to pollution control made by the LOSC were for coastalstates. Through the 200nm EEZ, the LOSC greatly extended thesovereign rights of coastal states over adjacent living and non-living resources, and also gave coastal states jurisdiction withregard to the protection and preservation of the marine

environment. At UNCLOS III, a number of developed, and mostdeveloping, states advocated a significant broadening of coastalstate powers to prescribe and enforce pollution control laws overvessels in EEZ areas as a concomitant of the creation of the EEZregime. However, this ran headlong into the desire by the majormaritime states to retain navigational rights and freedom withinthe territorial sea and compromise on jurisdiction between thesetwo positions was achieved, so that while the geographical reachof coastal state jurisdiction was enlarged, the content ofcoastal state laws was limited so as to prevent “creeping“coastal state jurisdiction. In the territorial sea, coastal states may legislate to controlpollution by foreign vessels so long as they give effect togenerally accepted international rules or standards. These lawsmust not hamper the exercise of innocent passage. For the EEZ,Article 211(5) provides that coastal states may legislate in theEEZ to implement international rules and standards. A result,coastal states do not have unferrered power to pass pollutioncontrol laws in the territorial sea and EEZ the would, forinstance, ban the movement of hazardous waste, or preventnavigation by certain vessels such as oil tankers. In all cases,coastal state laws must be in conformity with IMO rules; they maynot be less demanding that international standards, but nor maythey be more stringent. There are a number of other states that have enacted legislationinfringing Article 211(5) by asserting a general jurisdiction toprevent pollution in the EEZ. There are two exceptions to the general requirement s of coastalstates to adhere to international standards. First, inecologically sensitive sea areas in their EEZs coastal states mayunder Article 211(60 pass additional laws and regulationsrelating to discharges or navigational practices followingappropriate consultations with the IMO. Coastal states areincreasingly relying on this provision in implementing AssociatedProtective Measures in Particularly Sensitive Sea Areas (PSSAs)designated by the IMO. A PSSA is defines as an area that needsspecial protection through action by IMO because of itssignificance for recognized ecological, socio-economic or

scientific reasons and because it may be vulnerable to damage byinternational shipping activities.

Secondly, in ice-covered areas that are within a coastal stateEEZ, the coastal state may adopt pollution control laws that arestricter than the international standards, in recognition thatpollution in such areas could cause ‘major harm to orirreversible disturbance of the ecological balance. Such lawsmust be adopted and enforced on a non-discriminatory basis.

4. ENFORCEMENT JURISDICTION

The enforcement jurisdiction of coastal states in the territorialsea and EEZ in relation to pollution issues is not unlimitedunder the LOSC. Where there are clear grounds for believing thata vessel navigating in the territorial sea of the coastal stateshas violated laws and regulations consistent with internationalstandards, and then the coastal state may undertake a physicalinspection of the vessel relating to the violation and mayinstitute proceedings including the detention of the vessel.Moreover, under the innocent passage regime in Part II of theLOSC. ‘Willful and serious pollution is considered to beprejudicial to the peace, good order or security of the coastalstate, disentitles a foreign ship to innocent passage, andenlivens the coastal state’s enforcement capacity.

In the EEZ, the coastal state may only arrest and prosecute avessel where there is clear objective evidence that the vesselhas committed a violation resulting in a discharge causing majordamage or threat of major environmental damage. Where instead theviolation has resulted in a substantial discharge causing orthreatening significant pollution, then the coastal state mayundertake physical inspection of the vessel. In lesser cases ofviolation, where there is neither substantial discharge, nor adischarge causing major damage, then all that coastal states maydo is require the vessel to give information regarding itsidentity, and port of registry, its last and its next port ofcall. Thus regime leaves to coastal states some degree of

discretion in characterizing the seriousness of a dischargeviolation, and therefore the extent of enforcement action thatmay be taken.The LOSC also lays down a number of safeguards in relation to theexercise of enforcement jurisdiction by port and coastal states.These are found in Part XII, Section 7. Under Article 224, powersof enforcement against foreign vessels may only be exercised bygovernment ships or aircraft, under article 225 enforcementaction is not to endanger the safety of navigation, or create anyhazard to any vessels, or expose the marine environment to anunreasonable risk. Enforcement action must also be non-discriminatory. Significantly, flag estate enjoy a right of pre-emption in all criminal proceedings except where the dischargeviolation results in major damage to the coastal state, or wherethe flag state has repeatedly disregarded its obligation toenforce effectively the applicable international rules andstandards.

ACCIDENTAL VESSEL-SOURCE POLLUTIONWhile operational discharge of oil and other substances accountfor most vessel source pollution, spillage of pollutants as aresult of maritime casualties continues to be a concern. Themagnitude of the risk posed by such accidents is a function,among other things, of the type of commodity being shipped. Oiltankers and ships carrying noxious chemicals in bulk are rightlythe targets of the most attention because of the likelihood ofsevere damage being caused in the marine environment should theybecome shipwrecked.Areas of the law of the sea relevant to the effort to reduce therisks associated with accidental vessel-source pollution includethe rules found in MARPOL , that relate to the construction ofvessel, and their ongoing inspection and certification, whichhave resulted in more seaworthy ships being used to transportoil and noxious chemical cargoes. Then there are rules concernedwith the safety of shipping more generally, that range beyondconstruction standards and deal have also with safety ofnavigation . the primary source of the rule. The primary sourceof the rule in SOLAS. Lastly, we have customary and conventional

rules addressing the rights and duties of land and coastal statein responding to pollution emergencies at sea.

Safety of shipping There measures taken to ensure that ships are regularly surveyedby qualified inspectors; have onboard the necessary charts andnavigational equipment; are in charge of a qualified aster andcrew which are conversant with and are required to observestandards for safety of life at sea, the prevention ofcollisions, reduction and control of marine pollution. Underarticle 94(3) of the LOSC, flag states are under an obligation totake such measures as are necessary to ensure safety of the seawith regard to the construction, equipment and seaworthiness ofships, the manning of ships, labour conditions and the trainingof crews, the use of signals, the maintenance of communicationand prevention of collisions. Article 94(5) makes clear thatstates are required to conform to general accepted internationalregulation, procedures and practices. This incorporates onto theLOSC the rules of SPLAS and the other IMO conventions, codes andguidelines concerned with maritime safety.

SOLASIt originates from the early convention concluded in 1914 inresponse to the titanic disaster there several subsequent incantationsof the instrument, and a thoroughly revised and updatedconvention was adopted in 1974. Since that time SOLAS has beenthoroughly amended via a tacit amendment procedure and for thisreason is referred to as ‘SOLAS, 1974, as amended’. Amendment maybe done by a two-thirds majority of present voting members of theIMO’s maritime safety committee or by a conference of contractinggovernments. Amendments may be adopted at the of a period of notnot less than one year unless more than 50 per cent the grosstonnage of the world’s merchant fleet, notify the IMO secretarygeneral that they object to the amendment. Amendment agreed uponin June 2009 make among other things, mandating the carriage ofelectronic chart display and information systems and bridgenavigational watch alarm systems. SOLAS has been ratified by 159states representing over 99per cent of the world merchant

shipping tonnage and is therefore like MARPOL, a universalregime. The primary purpose of SOLAS is to set down standards forthe construction, equipment and operation of ships that willpromote their seaworthiness. Its structure is short convention of13 articles containing general provisions, with a single lengthyAnnex divided into 12 chapters. The core of SOLAS is theresponsibility of flag states to ensure that ships under theirflag comply with requirements of the convention and its annex,including by promulgating all laws, decrees, orders andregulations that are necessary to do so. Similar to MARPOL, SOLASrequires flag states to inspect and survey ships and issuecertificates of seaworthiness. In addition, every ship when inport is subject to the control of port authorities which are toverify that certificates issued are valid.

Qualifications and working conditions for seafarersThere is category in the IMO convention relating to maritimesafety which addresses the qualifications and training of shipcrews, and are drawn from around 1.5 million active seafarersworldwide. The IMO is not the only international organization tohave concerned itself with these issues, with the internationallabour organization, which was established in 1919with the taskof improving working conditions, also active in the area, settingout the rights of seafarers to safe and decent conditions of workin the 2006 labour convention. It has been described as a ‘fourthpillar’ for achieving safe shipping alongside MARPOL, SOLAS andthe 1978 convention on standards of training, certification andwatch keeping for seafarers (STCW convention). The 2006 maritimelaborconvention, its regulation and code, consolidate thestandards contained in the 60 instruments adopted by the ILO onthe subject since 1920. They set minimum requirements forseafarers to work on ship such as medical fitness, condition ofemployment, occupational health and safety inspections. The LOSCimposes a general obligation on flag states to ensure that eachship is in charge of a master and officer who possess appropriatequalifications, in particular in seamanship, navigation,communications and marine engineering and furthermore that thecrew is appropriate in qualification and numbers of the type,

size, machinery and equipment of the ship. Through 2 conventionsthe IMO has elaborated technical standards that give clearguidance to states on the personnel requirements to ensure safesailing. The STCW convention and the 1995 convention on standardsof training, certification and watch keeping for fishing vesselpersonnel.

Only the STCW convention has entered into force, it wascompletely revised in 1995 and a suite of additional amendmentswere recently drafted for submission to a diplomatic conferencein manila in June 2010, for adoption. The STCW convention, itsannex and the extensive STCW code which expands upon the generalregulations, require flag states to certify that master and crewmeet defined training and qualification standards and specifiesthe level of watch keeping to be maintained. Flag states have themain responsibility of ensuring that these standards are met.However, port states control is also utilized by the SCTWconvention, allowing port states to prevent ships from sailingwhere it is found that there are serious deficiencies which posea danger to persons, property or the environment.

Preventing collisions at seaThere are several IMO rules concerning maritime safety relatingto preventing collisions at sea. The 1972 convention on theInternational Regulations for the Prevention of Collisions at sea(COLREG) updates and replaces the 1960 Collision Regulation. Itwas a collision at sea which led to the ‘Lotus Case’. The PCIJ’sconclusion based on the since discredited theory that the Turkishvessel was the floating territory of turkey, was subsequentlyoverridden by the 1958 High Seas convention which provides inarticle 11 that in the event of a collision or any other incidentof navigation concerning a ship on the high seas, no penal ordisciplinary proceedings may be instituted against the master orcrew of a vessel except by the flag state or the state of whichthe accused is a national. This provision was repeated in article97 of LOSC. COLREG does not modify this this rule, instead it isconcerned to specify rules regarding such matters as look out,safe speed, use of radar and other equipment to reduce risk of

collisions, action to be taken to avoid collision, navigationthrough narrow channels, conduct during poor visibility and rulesconcerninglights, shapes and signals. One of the most importantaspects of COLREG relates to traffic separation schemes whichregulate traffic in busy and confined waterways by requiringvessels to travel in the same direction in designated lanes andto cross lanes at right angles.

There are traffic separation schemes and other systems forrouting ships which have been adopted by the IMO in most majorcongested shipping areas, resulting in significantly fewercollisions and casualties. Under SOLAS, the IMO, stated to berecognized as the only international body for developing,criteria and regulations on an international level for shiprouting systems. Under COLREG, Rule 10 vessels from state partiesto the convention must observe the requirements of IMO trafficseparation schemes.

POLLUTION EMERGENCIESMaritime disaster resulting in the release of oil and otherpollutants have brought to light three main sets of legal issuessurrounding the control of pollution emergencies at sea. First,how states can cooperate in responding to such events in order tominimize pollution damage to the marine environment. Secondly,what positive obligation should attach to states to controlpollution in the event of emergencies within their jurisdictionor control and thirdly, what steps coastal states may takeunilaterally to abate pollution threats from casualties involvingforeign-flagged vessel on high seas.

Responding to pollution emergenciesThe LOSC stipulates that when a state becomes aware of asituation in which the marine environment is in imminent dangerof being damaged or has been harmed by pollution, it mustimmediately notify other states that are likely to be affected bysuch pollution. Furthermore states in the area affected must in

accordance with their capabilities; cooperate in eliminating theeffects of pollution and preventing or minimizing the damage. Inthis respect states are required to jointly develop and promotecontingency plans for responding to pollution incidents.These General obligations under LOSC are elaborated and extendedby the 1990 convention on Oil Pollution Preparedness, Responseand cooperation (OPPRC convention) and the 2000 protocol onPreparedness, Response and Cooperation to pollution incidents byHazardous and Noxious substances. The OPPRC convention, whichtakes account of both precautionary approach and the polluterpays principle, requires states to formulate oil pollution plansfor their vessels and their ports and offshore terminals. Statesmust also establish a national system for responding promptly andeffectively to oil pollution incidents, including as a minimumthe designation of a competent national authority withresponsibility for oil pollution preparedness and response.Master must report without delay any danger even on their ship oroffshore unit involving a discharge or possible discharge of oilto the nearest coastal state. On receiving oil pollution reportthe coastal state is to assess the seriousness of the event andthen inform without all states whose interests are affected orlikely to be affected. The OPPRC convention states that if actionis taken by one party at the express request of another, thelatter shall reimburse the assisting party.

Coastal states rights of interventionCoastal states are under a positive obligation to report topollution emergencies with their jurisdiction and control andalso enjoy a right to intervene in incident soccuring beyondtheir territorial sea involving foreign vessels. In the ‘torreycanyon’ disaster, the UK bombed the sinking tanker on the highseas in an effort to incinerate and dissipate its cargo of oil.However, the British government advanced no legal justificationsfor it conduct and questions surrounded its legality as itappeared to offend the exclusivity of flag states jurisdiction onthe high seas, where vessels enjoy freedom of navigation, freefrom interference by the all authorities except those of theirstate of nationality, with only limited exceptions. At customary

international law intervention would prima facie be unlawful;however the international wrongful act may potentially be excusedon the basis of necessity that is where the act of interventionis the only means of coastal states to safeguard an essentialinterest against grave and imminent peril.The general question surrounding coastal states interventionrights was referred to the IMO following the grounding of thetorrey canyon, and resulted in the conclusion of the 1969convention on the High Seas in cases of oil pollution casualties.This convention was supplemented by a protocol to cover otherforms of pollution. The 1973 protocol relating to intervention onthe high seas in cases of pollution by substances other than oil.The 1969 convention allows parties to take such measures on thehigh seas as may be necessary to prevent, mitigate or eliminategrave and imminent danger to their coastline or related interestsfrom pollution or threat of pollution of the sea. The matter isalso addressed in the LOSC which in article 221(1) provides insimilar terms that nothing in part XII shall prejudice the rightof states pursuant to customary and conventional law to take andenforce measures beyond the territorial se proportionate to theactual or threatened damage to protect their coastline or relatedinterest, including fishing , from pollution.

The role of salvorsIn addressing marine pollution emergencies there is the role ofprivate maritime salvorsin assisting vessels in distress an inpreventing and reducing environmental damages. Traditionally,maritime salvage has proceeded on the basis of ‘no cure no pay’rule which meant that the salvor would receive no payment orother reward unless the vessel was saved. Hence efforts thatsubstantially reduced pollution, but nonetheless wereunsuccessful in salvaging a vessel in its entirety, would gounrewarded. This rule which was disincentive to salvors toprotect the marine environment was modified by the 1989International Convention on salvage. Salvage operation which havea useful result give right to reward, with the reward being fixed

by reference among other things, to the skill and efforts of thesalvors in preventing or minimizing damage to the environment.

LIABILITY FOR VESSEL SOURCE POLLUTION

State responsibilityThe question that arises here is whether the flag state may beheld internationally responsible by other states affected by thepollution. The Law Of the Sea Convention (LOSC0) in article194(2) requires states to take all measures necessary to ensurethat activities under their jurisdiction or control are conductedso as not to cause pollution damage to other states or to areasbeyond national jurisdiction. Article 235(1) provides that statesare responsible for the fulfillment of their internationalobligations concerning the protection and preservation of themarine environment and that they shall be liable in accordancewith international law. However there has been no real-lifeengagement with the critical question as to the applicablestandard of liability. Should the liability of a flag state bestrict in the event of a major oil spill from a tanker? Orinstead should a due diligence standard apply, such that the flagstate would only be liable if it has failed to take all necessaryand appropriate measures to address the risk of pollution?Under article 48 of the international law commission’s articleson state responsibility a state which is not injured maynonetheless invoke the responsibility of another state if theobligation breached is owed to a group of states, including thatstate and is established for the protection of a collectiveinterest. in principle, this provides a basis for any state partyto LOSC to take up a claim where there has been a pollutionincident that has resulted in damage to the high seasenvironment.

CIVIL LIABILITYThe issue of state responsibility on marine pollution has notbeen adequately resolved. Through the IMO convections a regimehas been established whereby civil claims for damage from oil

pollution and hazard chemicals may be brought in the courts ofcoastal states.

Liability for oil pollutionCivil proceedings for compensation for oil pollution can becomplex, coastly and slow as demonstrated in Exxon Valdezdisaster. The proceedings in Exxon Valdez matter were taken inaccordance with United States maritime law which was revised bythe 1990 oil pollution act that was enacted in response to thedisaster. That legislation significantly raised, and in somecases removed limits on liability for oil pollution damage. TheUnited States regime for oil pollution liability is more advancedthan that which has been adopted internationally under IMOauspices, although the latter has been strengthened considerablyin recent years. The key instruments are the 1969 convention onthe civil liabity for oil pollution damage and the 1971convention on the establishment of an international fund forcompensation for oil pollution damage. It seeks to ensure thatcoastal states and their nationals obtain appropriatecompensation in the result of pollution from oil tankers. It doesso by overcoming some of the hurdles faced in transnationallitigation, namely establishing jurisdiction, the applicable law,the standard of liability and must importantly the limits of thatliability

1992 civil liability conventionThis regime applies to sea-going vessels or craft constructed oradapted for the purpose of carrying persistent hydrocarbonmineral oil in bulk as cargo. It allows claims for pollutiondamage caused in the territory, territorial sea or EEZ of acoastal state or up to 200nm from the territorial sea baseline ifno EEZ has been claimed, to be brought in the courts of thatstate if it is a party to the 1992 CLC. this jurisdiction isterritorial an entitlement to take proceedings exists regardlessof the flag of the vessel involved in the incident.In relation to damage to the environment, compensation is onlypayable for the loss of profit from the impairment of theenvironment and the cost of reasonable reinstatement measure

under the 1992 CLC, claims for compensation are to be madeagainst the registered owner of the ship, or owners insurer, andnot the operator of the ship, or the owner of the oil cargo.Hence no proceedings may normally be instituted against thepotential parties who may have had a hand in the incident such asthe operator, the charterer master, crew, pilot or salvour. thisis in accordance to article 3(4)of the CLC. however the 1992 CLCdoes not preclude the ship owner from seeking recourse againstthe third parties.The liability of ship owners is strict, and hence they will beliable to pay compensation for pollution damage caused by theescape or discharge of persistent oil from a ship even if thepollution was not due to any fault on their part. Howeverliability is not absolute and exceptions to liability apply.Where it can be established that the damage resulted from an actof war, hostility, civil war, insurection or a nationalphenomenon of an exceptional, inevitable or irresistiblecharacter; was wholly caused by an act or omission by a thirdparty with intent to cause damage or was wholly caused by thenegligence of any government or other authority responsible forthe maintenance of navigational aids.

1992 fund conventionThe 1992 CLC liability amounts are not always sufficient to coverthe damage incurred in very serious pollution incidents. Forinstance the Erika disaster which led to the spillage of 19,800tones of heavy fuel off the coast of Brittany. In thatcompensational claim there were about 700 claimants including theFrench government totaling to more than€200 million even thoughonly around €13 million was available under the CLC. Hence a needfor additional funds to satisfy liabilities arose and to this endthe international oil pollution compensation fund (IOPCF)established the 1992 fund convention may be drawn upon wherethere is compensable damage that exceeds the liability limits forship owners. The IOPCF is financed by companies and otherentities of member states which receive oil that is carried bysea.

The IOPCF can be called on where the damage exceeds the shipowners liability limit under the 1992 CLC.however it can also beused to provide compensation when the ship owner is not liablebecause the damage was caused by natural disaster, intentionalwrong doing by a third party or by negligence of a publicauthority in maintaining navigational aids. It is also availableif the ship owner is financially incapable of meeting theliability under the 1992 CLC, or if the insurance taken out isinsufficient. however, the IOPCF cannot be asked for to paycompensation if the pollution resulted from an act of war,hostilities, civil war or insurrection or if the claimant isunable to establish that the damage resulted from an accidentinvolving a ship as defined by 1992 CLC Fund Convention, that isa vessel carrying oil in bulk as cargo

Liability for other pollution damageThe 1992 CLC and the 1992 Fund convention apply only to oilpollution and not to other noxious cargoes. The IMO adopted the1996 convention on liability and compensation for the carriage ofhazardous and noxious substances by sea (HNS convention) the HNSconvention which has not yet entered into force, will enablevictims to claim up to 250 million SDR for accidents involvingchemicals and other noxious substances.Strict liability attaches to ship owners, rather than otherpotential parties such as crew of vessels, the hazardous andnoxious substances to which HNS convention applies are thosedefined in MARPOL. These include oils, other noxious or dangerousliquids, liquefied gases such as liquefied natural gas,dangerous, hazardous and harmful materials and substances carriedin packaged form, and solid bulk materials that constitute achemical hazard. The HNS convention does not apply to damage byoil pollution covered by the 1992 CLC. None of the IMO liabilityregime apply to civil liability for nuclear damage of the marineenvironment instead the key treaties are those agreed under theauspices of the international atomic energy agency (the 1963vienna convention on civil liability for nuclear damage)and the(1960 Paris convention on third party liability on the field ofnuclear damage)

SEA-BED POLLUTIONExploring and exploiting the hydro carbon and other non-livingresources of the seabed in excitably results in some level ofdisturbance of the ocean bottom environment, and can also lead tothe intentional or accidental release of pollutants

Territorial sea EEZ and continental shelfArticle 208(1) of the LOSC requires coastal states to adopt lawsand regulations to prevent reduce and control pollution of themarine environment arising from sea bed activities subject totheir jurisdictions and from artificial islands, installationsand structures.Article 208(4) encourages states to harmonize national policiesin relation to pollution from seabed installations at anappropriate regional level and to this end several regionalregimes have developed rules to address the problem. Hence in thePersian gulf, the 1989 protocol concerning marine pollutionresulting from exploration and exploitation of the continentalshelf adds to the general regime for controlling marine pollutionin the region under the UNEP RSP convention for the area.Similarly there is a protocol dedicated to pollution from seabedactivities in the medditrenean that is the 1994 protocolresulting from exploration and exploitation of the continentalshelf and the seabed and its sub soils. In relation to the northsea and north east Atlantic the regional regime is the 1992convention for the protection of marine environment of the north-east Atlantic (OSPAR convention).the OSPAR convention is the mainregime by which 15 states of the western coasts and catchments ofEurope, together with the European community, cooperate toprotect the marine environment of the north east atlantic.Article 5 of the convention requires parties to take all possiblesteps to prevent and eliminate pollution from offshore sources inaccordance with the provision of the convention. The OSPARconvention parties have adopted a string of recommendations

concerning issues such as pre-screening scheme for chemicals usedby offshore industry for replacing wherever possible toxicchemicals with safe substitutes for limiting discharges ofchemicals, and the management of produced water from offshoreinstallations.

DUMPING AT THE SEA

Maritime Organization (IMO)At the regional level there are a number of treaties dealing withthe sources of marine pollution. The ocean presents an obvious dumping ground for many substancesthat are costly or difficult to process or dispose of land.This unregulated dumping or incineration activities increased inthe post second world war period and gained particular intensityin the late 1980 and 1970 and involved the dumping of largequantities of industrial effluents of garbage, sewage, nuclearwastes and decommissioned military hardware.In 1972 Stockholm Conference on the Human Environment Dumping atSea was discussed. Due to a lot of concern on regional and globalscales then. The 1972 Convention on the Prevention of MarinePollution by dumping of wastes and other matter (972 HarbourConvention was concluded) and this was supplemented by regionalagreements in a number of sea areas, mostly under the auspices ofthe UNEP. As we know this were major advances as the only rule atthe time was supplied by the 1958 High seas convention whichrequired states to take measures to prevent pollution of the seasfrom the dumping of radioactive waste.

1972 London Convention This convention adopted a permissive approach to the regulationof dumping. It defined dumping as the deliberate disposal at seaof wastes or other matter but not discharges from the normaloperation of ships or from accidents was permitted unless thesubstances concerned were established to be harmful. It has 86parties. It divided wastes into 3 categories.The black is in annex I such as oil and high nuclear waste. Thedumping of his black list was prohibited outright.

The grey list in Annex II such as metal, particulars of low-levelnuclear waste. The dumping of which was allowed under permit fromthe national authority.Other substances that maybe dumped again under a permittingsystem which served only to provide a level of supervision of thedumping industry.

1996 Protocol This protocol revised the 1992 London Convention and for that useit reserved the permission approach which modernizes andsupersedes the original regime for those status which were alsoparties to the 1972 London Convention.The Protocol adopts a prohibitionist approach such that dumpingof any substance is generally outlawed unless it can bedemonstrated that it is not damaging to the marine environment.In this respect the protocol requires parties to apply aprecautionary approach to environmental protection from dumpingwhereby appropriate preventive measures are taken when there isreason to believe that wastes are likely to cause harm even whenthere is no conclusive evidence to prove a casual relationbetween inputs and their effects.We can say the 1996 Protocol is considerably stronger the 1992London Convention in that it aims for the elimination wherepracticable of pollution caused by dumping or incineration ofwastes at sea. This protocol has 37 partiesThe protocol defines dumping as the deliberate disposal into thesea of wastes or other matter from vessels, aircraft, platforms,or other man-made structures, any storage of wastes of othermatter in the … or the subsoil. It does not include the disposalof wastes or other matter in incidental to the normal operationsof vessels, aircraft or platforms. Incineration at sea is defined as the combustion of wastes onboard a vessel, platform or other man-made structures at sea froeh purpose of their deliberate disposal.States are required to prohibit the incineration of all wastes atsea. They must also prohibit the dumping of city wastes or othermatter with the inception of those listed in the Annex 1.

Those wastes are dredged materials (which makes up the bulk ofwastes dumped at sea) is sewage sludge, fish waste, vessels andplatforms, inert, geological material (for example minetailings); organic material of natural origin; bulky itemsprimarily comprising iron, steel, concrete and similar mostlyharmless materials, (but only where there are no practicablealternatives of dumping); and carbon dioxide streams, from carboncapture or storage processes. Exception does however apply whenit is necessary to secure the safety of human life or of vessels,aircraft or platforms in situations of force majeure cause byadverse weather. Dumping of those substances listed in Annex 1, although allowedmust still be subject to permitting & reporting obligations.Dumping may only proceed on obtaining a permit from a nationalauthority with governments paying attention to the opportunitiesto avoid dumping in favour of environmentally preferablealternatives. Parties must keep a record of the nature of volumesof wastes for which dumping permits have been issued, and theactual quantities of materials dumped … location time and methodof dumping. The 1996 protocol I supplemented by guidelines forthe assessment of wastes or other matter that may be consideredfor dumping first adopted in 1997, provides guidance to nationalauthorities in evaluation applications for permits to dump wasteand encourage authorities to consider waste management optionsother than dumping such as re-use, recycling or treatment.

Amendment to the 1996 Protocol The most significant amendment was effective in 2006, the year itentered into …At the 1st meeting of the contracting parties in November 2006,the amendments were adopted which permitted the storage of carbondioxide under the seabed.These amendments have now been implemented in the domesticlegislation in a number of jurisdictions. The amendments allowsfor regulation of sub-seabed sequestration of carbon dioxide,with carbon dioxide streams from carbon … process added to Annex1 as a waste on other matter that maybe considered for dumping.

After the second consultative meeting in November 2007, theamendments were supplemented by specific guidelines forassessment of carbon dioxide streams for disposal into sub-seabedgeological formation. The 1996 does not permit water column sequestration of carbondioxide which can occur through the dumping of materials such asiron compounds to promote his … of platform which absorb carbondioxide . This is the process known as ocean particulars.The resolution adopted by the parties in October, 2008 agreedthat the scope of this 1972 London convention as 1996 protocolincludes ocean fertilization activities as that given the presentstate of knowledge such activities with the exception oflegitimate scientific research should not be allowed.

Jurisdiction & Enforcement The responsibility for issuing permits for dumping ties with itsstate party in which the waste is loaded, except where theloading occurs in a state which is not a party in which case theplay state is to issue permits. Parties are required to apply themeasures to implement the 1996 protocol to vessels, flying theirflag and vessels and aircraft loading in their territory wastesto be dumped on incinerated. They must take appropriate measures to prevent and i necessarypunish acts contrary to the provisions of 1996 protocol.The hose provide under article 210(5) that dumping within theterritorial sea the EEZ or unto the continental shelf shall notoccur without the express prior approval of the coastal state. The coastal state has the right to permit, regulate and controlsuch dumping after due consideration of the matter with otherstates which by reason of their geographical situation maybeadversely affected thereby. National laws and regulations is applicable international rulesand standards for controlling dumping and to be enforced bycoastal states in the territorial sea, the EEZ and continentalshelf, by the flag state with regard to its vessels and by statesin which the wastes are loaded onto vessels. The rules relation to dumping are more favourable for coastalstates than relating to operational vessel - … pollution because

allowing coastal state jurisdiction over dumping does not raisethe freedom of navigation sensitivities surrounding coastal state… of industrial pollution from foreign vessels. Nothing prevents coastal states from …and enforcing stricterstandards while national laws are to be no less effective thanglobal rules and standards. This also applies to the case of avessel granted a license to dump wastes by another state pursuantto the 1996 protocol.

Ship scrapping of recyclingPermits are also issued by a number of states to dispose ofdecommissioned vessels in some cases so as to establishartificial … for use by recreational drivers. Ships may only be dumped when they will not cause damage to themarine environment and hence states will need to ensure that suchvessels are stripped of environmentally hazardous substances suchas heavy metals oils and asbestos. Most ships are scrapped rather than dumped, and the processing ofhazardous substances by ship recyclers pose risks to human healthamong workers in scrap yards, particularly in some developingstates where there are … or non-existent occupational health andsafety standards to remedy this. In May 2009 the IMO concludedthe 2009 convention for the safe of environmentally soundrecycling of ships addresses a host of issues surrounding shiprecycling processes. The convention which is yet to enter intoforce, includes regulations addressing the design construction,preparation of ships that will facilitate safe andenvironmentally sound recycling facilities and a certification &reporting system to promote compliance. The convention puts intobinding law many of the provisions of the 2003 IMO guidelines onship recycling.

Regional Agreement Regional agreements are less important than they once were inregulating dumping because of the stringency of the global rules.The regional … from the most part follows this approach of the1972, London convention and in many cases have been updated toreflect the 1996 protocol. Such regimes apply in the Baltic, the

black sea, the Mediterranean, North East Atlantic or SouthPacific. One of the most active regimes has been that under the OSPARconvention. The regime minors the 1996 protocol in most materialrespect, but has a more supervision character by virtue of theOSPAR commission. At the 2007 meeting of the commission, amendments to the Annexesto the convention were adopted to allow carbon sequestration ingeological formation under the seabed. In association with these,a decision was adopted to ensure environmentally safe storage ofliquefied carbon dioxide in geological formations pursuant toOSPAR guidelines for risk assessment and management. Mindful of the acidification impacts of carbon dioxide on orabove the seabed, this protocol illustrates that while the OSPARCommission is committee to carbon capture and storage to reduceatmosphere concentration of carbon dioxide, it is also aware ofthe … to ensure that this mitigation strategy does not itselfcontribute to ocean pollution.

LAND-BASED AND ATMOSPHERE POLLUTIONThis makes up the lion’s share of harmful substances entering the… environment or most difficult to regulate because it wouldrequire significant instructions on industrial and otheractivities within the territory of all states and coastal statesin particular. The source of this pollution highly diffuse incaseof point – source land –based pollution such as sewage pollutionfrom coastal or ocean outfalls … coastal states have neithercapacity nor inclination to implement stringent pollution controlstandards, lands and atmosphere based pollution of eth oceans is… an obvious …of the common’s problem. LOSE previsions Under Article 207 (1) states are required to adopt laws andregulations to prevent, reduce and control pollution from landbased sources including rivers, estuaries, pipelines and outfallstructures, taking into account internationally … rules. A similar obligation applies to pollution from or throughatmosphere by dint of Art 212(1).

The obligation to take measures to deal with land based andatmosphere pollution in Article 207 and 214 of the LOSE issupplemented by the obligation in Article 213 and 222 to enforcethem.However this scheme is clearly less demanding than thatapplicable to vessel sources pollution and dumping in that itdoes not mandate the application of instructional standards, butrequires only that state take those into accounts. Thus givescoastal state considerable latitude in determination whether toadopt pollution abatement measures and whether particularsubstances should be considered to be pollution within themeasuring of Article 1 (4) of eth LOSE.Article 207 (4) provides that in establishing global and regionalrules, states and should take into account characteristicsregional features, the economic capacity of developing states astheir need for economic development.

MOX plant caseITLOS issued an important provisional measures order whichrequired the two states t co-operate in order, among other thingsto devise measures to prevent pollution of the marine environmentof the Irish sea from a nuclear fuel reprocessing plan. Land reclamation by Singapore in and around the straits of JohorITLOS … in statement in the MOX plant case that the duty co-operate is a fundamental principle in the prevention of pollutionof marine environment under the ITLOS observed that it could notbe excluded that Singapore’s land … works may have adverseefforts on the marine environment, including within Malaysia’sterritory sea and directed Singapore not to conduct landreclamation in such a way that might cause serious harm to themarine environment.

INTERNATIONAL LEGAL REGULATIONS OF MARINE FISHERIES AND NAVALACTIVITIES IN THE WORLD OCEAN

INTRODUCTION World Ocean contains extensive natural resources.

In comparison with living resources, Marine non-living resourcesare mostly underutilized, mainly because of their relativeinaccessibility especially the case with respect to deposits ofoil and gas in deep water areas of continental shelves andmineral deposits on and under the deep seabed beyond nationaljurisdiction (the area).However, this situation is rapidly changing as demand for mineralresources increases and new frontiers for resources exploitationare opened as a result of improved mining technologies andchanging ocean conditions. Historically of law of the sea, the management of living and non-living resources has be pursued on an exclusively zonal basis,with coastal states having sole rights over resources in a narrowband of adjacent wastes and with high sea resources, then subjectto the freedom of the freedom of resource exploitation, a freedomenjoyed in principal by all states. The LOSC radically expanded coastal state resource zones forliving and non-living resources through the continental shelf andGGZ regime created a new common heritage regime for the non-living resources of the area and established new rules tosafeguard fisheries and the marine environment MOU generally. Asa result, nearly 40 per cent of Ocean space that was high sea isnow within 200mm zones of coastal state.LOSC substantially transformed the global regime for marineresource management, in particular by introducing new duties ofcooperation in relation to fisheries conservation. It alsoremained animated to a large degree by a zonal approach. Ithowever did not establish a truly holistic and integrated systemfor marine resources management. Substantial progress towards this objective has been achievedthrough developments in treaty law and state practice in the post– LOSC period, notably in the context of high sea andtransboundary fisheries. There was the conclusion of an implementing agreement under theLOSC, the 1995 Agreement which was for the implementation of ethProvisions of the United Nations Convention on the Law of the Seaof 10th December 1982 which related to the conservation and

management of straddling fish stocks and highly migratory fishstocks (FSA)This Agreement and (FSA) was to ensure the long-term conversationand sustainable use of transboundary and high sea fisheriesstocks that have historically been poorly managed. Itsprecautionary principle seeks to protect marine ecosystems as awhole, rather than particular fisheries irrespective of maritimeboundaries.

NON-LIVING MARINE RESOURCES Resource potential The ocean, seabed and subsoil contain a variety of non-livingresources. These have until recently been for less accessible forexploitation than those found on the continental landmasses.Today familiar features of many sea scopes are drilling andpetroleum platforms both near to coast and in open ocean seas. Oil and gas exploitation constitutes the most important offshorenon-living resource sector. However, since the first industrial-scale oil wells were sunk offthe coast of Louisiana in the US in 1940s. There has been asteady increase in offshore production of hydrocarbons. By 1990s offshore production constituted around 30 per cent ofworld oil production by comparison with about 25 per cent in the1980s. Offshore gas production increased between the 1980s and the 1990sby almost 30 percent and by the 1990s comprised 50 per cent ofworld gas production. Areas of most concentrated offshore oil and gas activity are theGulf of Mexico.Ares of most concentrated offshore oil and gas activity are theGulf of Mexico, North Sea and off Shore West Africa and SouthEast Asia and increasingly in deeper waters as deposits close toshore are exhausted. As exploitation of offshore stocks of oil and gas begin to bedepleted attention is being directed at other potentialhydrocarbon resources on the sea floor such as Methane hydratesin which methane is trapped within i.e. crystals and can be

released upon warming i.e. its estimated that Ocean floorhydrates contain twice the amount of hydrocarbon resources asthose found in all of eh recyclable and unrecovered oil, gas andcoal deposits elsewhere on earth. However, there is growing recognition that limits will have to beplaced on the further extraction of these fossil fuels from theseas, as the greenhouse gases generated by their use beyond ascertain threshold would lead to dangerous climate change.To this regard in 1977, the United Nations Secretary Generalnoted that Methane hydrates contain almost 30 times the amount ofcarbon dioxide in the atmosphere. It has been noted that, the law of the sea is not concerned inany way with limiting exploitation of hydrocarbon (or any othernon-living resource) and instead leaves the regulation of thehuman impact on the carbon cycle to the international climatechange regime founded upon the 1992 United Nations Frameworkconvention on climate change. Additionally, other than the hydrocarbons, the oceans have alsobeen exploited for several other mineral resources, such asprecious stones including diamonds (there have been diamond minesoffshore South Africa since 1960) Sea water itself also contains many minerals including gold,magnesium and cobalt and it is technically possible, though notcurrent economically feasible to extract these by processing verylarge volumes of water.

Internal waters and territorial sea Within internal waters and the territorial sea, the coastal statehas exclusive competence to regulate access to non-livingresources. Access by foreign nationals, for prospectingexploration or exploitations, is therefore only possible wherethe coastal state has granted its express consent. This isreaffirmed in the case of the territorial sea by Article 19(2)(j) of the LOSC which provides that a foreign ship in ethterritorial sea engaging in “research or survey activities, whichwould include explanatory activities for minerals, will beengaged in passage that is prejudicial to the peace, good order

or security of a coastal state and therefore not able to enjoythe privileges of innocent passage.In relation to the territorial sea and internal waters there hasbeen no change from the rights enjoyed by coastal states underthe pre-LOSC regime, except that these now apply out to the 12 nmterritorial sea. Coastal states regularly grant licenses toforeign companies to engage in oil and gas prospectingexploration and exploitation, in the territorial sea, withcoastal states setting the terms of such contracts, includingmaking provision for the collection or royalties. The subsequentregulation by the coastal state of this foreign investment thenoften comes within the terms of bilateral investment treaties.

Continental shelf and exclusive economic zone The LOSC recognized and further developed the doctrine of thecontinental shelf, a zone that is concerned primarily withcoastal state sovereign rights over non-living resources. The1945 proclamation by United States President, Harry S. Turman,was the first major statement of entitlement to these resources,and was culmination of demands made by the oil industry, fro asearly as 1918, for offshore mining permits outside theterritorial sea. In addition to recognizing the continentalshelf, the LOSC also established a new resource zone, the EEZ,which applies to both living and non-living resources andtherefore overlaps to a considerable extent with the continentalshelf regime. However some non-living resource-relatedactivities, such as the production of energy from the water,currents and the wind, fall only within the purview of the EEZregime in Part V of the LOSC. As most accessible offshore mineralresources are found within 200 nm zones, the LOSC resource regimemeans that coastal states are effectively accorded exclusiveresponsibility for the management of the majority of marine non-living resources in the world’s oceans. One characteristics of non-living resource management in the lawof the sea that very clearly distinguishes it from the managementof fisheries is that it is not premised by extensive conservationduties in relation to fisheries. However for non-living resourcesthere are no such duties in any maritime zone. Hence minerals and

hydrocarbons may be exploited without regard to any object ofrational use that would extend their availability for humanconsumption for as long as is possible so that alternatives canbe developed. Nonetheless in seeking to exploit mineral resourcesstates must adhere to the obligations of marine environmentalprotection found in Part XII of the LOSC, which among otherthings require states to prevent, reduce and control pollution ofthe marine environment. There are other treaties and soft-law instruments operating intandem with LOSC that are treaties and soft–law instrumentsoperating in tandem with the LOSC that are relevant to theoffshore mining industries in the EEZ and the continental shelf.These include instruments that deal with matters such as theprevention of pollution, the removal of the offshoreinstallations activities and other cats or violence.

The high seas and deep seabed Although introducing the areas of seabed that was regarded ashigh sea, the emergence of the continental shelf and EEZ did notaffect the legal status of the high seas as a res communis areasin which non-living resources were open to be used by al states.Initially the actual enjoyment of such rights was impractical,given the technical difficulties involve in gaining access toseabed resources at a substantial distance from coastlines.However mining on the high sea became a real possibility from1960s onwards with rising mineral prices and improvement inmarine resource extraction technologies. The realization thathigh sea mining was technically feasible (if not economicallyviable) led to developments in the law of the sea that resultedin the designation of the Ares and its resources as the “commonheritage of mankind”. The common heritage regime in Part XI ofthe LOSC replaced the high seas freedom of non-living resourceexploitation with a new conceptualization of the deep seabed,which vested its resource in the international community as awhole, and established a system for administering prospecting,exploration and exploration through the ISBA. The deep seabed regime under LOSC applies only to solid, liquidor gaseous mineral resources in or beneath the sea-bed, including

polymetallic nodules. Therefore it does not apply to the othernon-living resources potentially exploitable on the high seas,such as energy that could be harvested from currents, waves andwind. Such resources continue to be subject to the freedom of thehigh sea, and may be utilized freely by states subject only tothe requirement to have due regard for the interest of the otherstates in their exercise of the freedom of the high seas.

Joint development Non-living resources generally present fewer managementchallenges for the Law of the Sea than do living resources, astheir fixed location means that exploitation can normally beregulated by a single state or, in the case of the Area, by theISBA. However management on this zonal basis is obviouslycontingent on the clear demarcation f maritime zones, and thishas not been achieved in many regions where overlapping EEZ andcontinental shelf areas have not been delimited or where hereremains doubt as to the outer limits of a coastal state’scontinental shelf. Moreover in some places oil and gas depositsstraddle the maritime zones of two or more states, such that theextraction activities authorized by one state can impact upon ashared resource such as a single pool of hydration found within abasin. Joint development arrangements have proven to be helpful insidestepping resource disputes arising from competing claims tomaritime jurisdiction, and in facilitating the development ofcommon mineral resources. Agreements of this character had beenconcluded many years prior to the LOSC; however they have becomemuch more common since 1982. This is primarily because Articles74(3) and 83(3) of eth LOSC provide that pending agreement on aboundary where there are overlapping EEZ and continental shelfareas, states “in a spirit of understanding and co-operation,shall make every effort to enter into provisional agreements of apractical nature. It is made clear however, that sucharrangements amount to nothing more than modi vivendi, as theyshall be without prejudice to the final delimitation.

The joint developments agreements

a) Joint development agreements between Bahrain and Saudi Arabia in 1958.It provides that the exploitation of oil deposits in a joint zone is to be conducted in a manner determined by Saudi Arabia on the condition that one half ofthe net revenue is remitted to Bahrain.

Other joint development agreements have had to address notonly non-living resources but also fisheries i.e. the 1978Agreement between Australia and Papua New Guinea concerningthe Torres Strait. It draws separate water column and seabedboundaries to take account of the fact that most islands inthe Torres Strait are under Australian sovereignty and thatseveral of these lie close to the coast of Papua New Guinea.Further states that fisheries jurisdiction accrues toAustralia around islands near to the Papua New Guinea coastand the seabed boundary lies further south in the centre ofthe strait between the main landmasses of the two states.

b) Joint Development Agreement between Australia and Indonesia that is in the Asia Pacific region found in the Timor Sea. Australia and Indonesia had negotiated seabed boundaries in the Timor Sea in 1972 at a time in which East Timor was under Portuguese Sovereignty.

Following Indonesia’s occupation and annexation of EastTimor in 1975 there was a need for a new agreement, toaddress the ‘Timor Gap’, a section of the boundarynecessarily omitted from the Australia/Indonesiadelimitation in 1972.Regarding the 1972 agreement, which set the seabed boundaryclose to the Indonesia coastline, as unjust and wronglybased on the natural prolongation theory, Indonesia pressedfor a median line boundary in the Timor Gap. Australia didnot accept this and development zone in the Timor Gappending delimitation of the seabed boundary through the 1989Treaty on the zone of cooperation in an area between theIndonesia province of East Timor and Northern Australia (theTimor Gap Treaty) The Timor Sea Development area wasdivided into three zones, to the north, abutting the centre

and to the South of the median line. When East Timor gainedindependence in 2002 a new agreement became necessary.Following a transitional period in which the terms of theTimor Gap treaty continued to be given effect, negotiationswith Australia led to the 2002 Timor Sea Treaty whichestablished a joint petroleum area that coincided with thezone in the 1989 Timor Gap Treaty.However, whereas under the Timor Gap Treaty revenues in thiszone were split 50:50, under the 2002 Timor Sea Treaty theyare to be divided 90:10 in favor of East Timor.

c) Joint development agreement between China and Japan. It’sone of the most recent joint development zones and is in theprocess of implementation in the East China Sea. It wasagreement was made in 2008 and its aim is to develop jointlyan identified area of the seabed, around 2,700 squarekilometers. This provisional arrangement (which does notappear to have been translated into treaty form) allows thecooperative development of an area of the East China Seathat remains hotly contested between the two states.

While China argues for a seabed boundary on the basis ofnatural prolongation of the continental margin to theOkinawa Trough, Japan has maintained a claim based onequidistance.

LIVING RESOURCES

1958 Geneva conventions

On 29 April 1958, as recorded in the Final Act (A/CONF.13/L.58,1958, UNCLOS, Off. Rec. vol. 2, 146), the United NationsConference on the Law of the Sea opened for signature fourconventions and an optional protocol: the Convention on theTerritorial Sea and the Contiguous Zone (CTS); the Convention onthe High Seas (CHS); the Convention on Fishing and Conservationof the Living Resources of the High Seas (CFCLR); the Conventionon the Continental Shelf (CCS); and the Optional Protocol ofSignature concerning the Compulsory Settlement of Disputes

(OPSD). The CTS entered into force on 10 September 1964; the CHSon 30 September 1962; the CFCLR on 20 March 1966; the CCS on 10June 1964; and the OPSD on 30 September 1962. States bound by theConventions and the Protocol, are, as at 23 July 2008,respectively: for the CTS, 52; for the CHS, 63; for the CFCLR,38; for the CCS, 58; and for the OPSD, 38.

The Conventions and Protocol are the product of the (first)United Nations Conference on the Law of the Sea, held in Genevafrom 24 February to 27 April 1958. The convening of theConference (by United Nations General Assembly resolution 1105(XI) of 21 February 1957) was the culmination of a long process.It had its precedents in the work of the Hague Conference for theCodification of International Law held in 1930 under the auspicesof the League of Nations. This Conference dealt with theterritorial waters. Although not agreeing on the breadth of theterritorial sea, it could present in its report 13 draft articlessetting out a measure of agreement on many aspects of thissubject. These articles would become the basis of further work.In the framework of the United Nations, the International LawCommission (ILC) indicated since the beginning of its work, in1949, the regime of the high seas and of the territorial seaamong the topics ripe for codification. A Special Rapporteur wasdesignated, who proceeded to submit reports on various aspects ofthe law of the sea.

Up to the end of its work, in 1956, the ILC, and the GeneralAssembly, which closely followed its work, proceeded throughseveral drafts concerning different aspects of the law of thesea. It was only in the final report submitted to the GeneralAssembly in 1956 that all provisions were systematically orderedas one body of draft articles covering the whole of the law ofthe sea. This final report was to be the main basis for the workof the 1958 Geneva Conference.

The Conference, whose task was “to examine the law of the sea,taking account not only of the legal but also of the technical,biological, economic and political aspects of the problem and to

embody the results of its work in one or more internationalconventions or such other instruments as it may deem appropriate”(resolution 1105 (XI) referred to above), did not succeed inkeeping the provisions on the law of the sea in one instrument.The unity of the law of the sea, painstakingly reached at thefinal stages of the work of the ILC, was lost (such unity was tobe one of the main objectives pursued and reached in the 1982United Nations Convention on the Law of the Sea). The adoption offour conventions and a protocol in lieu of one all-encompassingconvention may be seen, and was conceived, as a device to attractthe acceptance by a broad number of States of at least some ofthe Conventions, in this way avoiding very radical reservations,or the decision by certain States not to accept an all-encompassing convention because of opposition to one or more ofits main component parts. The fact that the CFCLR and the OPSDhave attracted a number of ratifications and accessionssubstantially lower than the other Conventions indicates thatthis Convention and Protocol were seen as controversial by Statesthat considered the other Conventions acceptable. Significantabsences in the groups of States having ratified the CTS and theCCS indicate specific difficulties, for instance as regardsinnocent passage through straits or the regime of the continentalshelf.

Attended by 86 States, the Conference organized itself in fivemain committees and a plenary, and followed rules of proceduresimilar to those of the United Nations General Assembly, so thatwhile provisions could be adopted in one of the committees bysimple majority, a two-thirds majority was required when theprovision reached the plenary. This procedural rule made itimpossible to agree on the breadth of the territorial sea.Although a 12 mile breadth probably could have secured approvalin the committee, it was clear that it could not do so inplenary, thus the question was left unresolved by the CTS. Thefact that this Convention provides that the external limit of thecontiguous zone can not exceed 12 miles from the baselineindicates that no breadth beyond 12 miles was seen as acceptable.

The United Nations General Assembly considered this keyunresolved question, together with that of fishing limits, worthyof a further effort at reaching agreement and made them the mainitems on the agenda of the Second United Nations Conference onthe Law of the Sea, held in Geneva from 16 March to 26 April1960. This Conference failed to fulfill its objective. Among thevarious proposals, ranging from 3 to 200 miles maximum limits, aproposal for a 6 miles breadth of the territorial sea plus a 6miles fishery zone immediately adjoining it was accepted in theCommittee of the Whole but did not obtain the necessary two-thirds majority in plenary.

The CTS sets out in detailed provisions the main rules on theterritorial sea and the contiguous zone. Its rules address, inparticular, baselines, bays, delimitation between States whosecoasts are adjacent or face each other, innocent passage and thecontiguous zone. Among the aspects that at the time were seen asthe most controversial were those related to article 16. First,article 16, paragraph 4, provides that innocent passage, whichcannot be suspended, applies in straits used for internationalnavigation not only connecting one part of the high seas toanother part of the high seas, but also to the territorial sea ofa foreign State, thus including also the strait of Tiran. Second,in article 16, no distinction is made regarding innocent passageof warships, hence the provision is generally couched for allships. This outcome resulted from the fact that the States infavour of requiring the coastal State's consent did not votealongside those who favoured prior notification.

The CHS defines the high seas as all parts of the sea notincluded in the territorial sea and internal waters. It dealsspecifically with: the freedoms of the high seas; the right of aState to have ships flying its flag under conditions fixed by it,stating the controversial requirement of the existence a “genuinelink”; the rights and obligations of the flag State; piracy; theright of visit; hot pursuit; and the laying of submarine cablesand pipelines. It also contains two early and pioneering

provisions on pollution by the discharge of oil and of radio-active wastes.

The CFCLR sets out principles and mechanisms for the rationalmanagement of fisheries in the high seas. It insists oncooperation between States engaged in the same fisheries, itrecognizes the special interest of the coastal State when thefisheries are in the high seas adjacent to its territorial seaand provides for compulsory settlement of disputes concerning allthe key rules. Some of the provisions are similar to those thatwere to be adopted in 1995 in the United Nations Fish StocksAgreement. At the time, the CFCLR was very controversial, as isevidenced from the low number of ratifications and accessions: onone hand, many States were keen on developing exclusive fisheryrights beyond the territorial sea – a regime for fisheries on thehigh seas beyond the external limit of the territorial sea wasnot satisfactory; on the other hand, the central role given tothe compulsory settlement of disputes was something that Stateswere not ready for at the time.

The CCS sets out rules on the notion, limits and regime of thecontinental shelf. The basic concept of the sovereign right ofthe coastal State as regards resources of an area of the seabedbeyond the external limit of the territorial sea had emerged inState practice only since 1945. It has been rightly said that theConvention “crystallizes” a relatively quick process of formationof a customary rule, which also includes the notion that therights of the coastal State over the shelf do not requireoccupation or express proclamation. The provision on the externallimit, based on the 200 meters isobaths and on exploitability,was to be seen as obsolete in light of technological progress andwas radically modified in the 1982 Convention. The rule ondelimitation, based on the equidistance plus specialcircumstances concept, was clearly indicated by the InternationalCourt of Justice (ICJ) as not corresponding to customary law(North Sea Continental Shelf, Judgment, I.C.J Reports 1969, p. 42, Para.69). It is noteworthy, however, that recent developments in theICJ case law on delimitation have brought the Court to accept an

“equitable principles/special circumstances” method which, asrecognized by the Court, is “very similar” to theequidistance/special circumstances method of the CCS (Land andMaritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria:Equatorial Guinea intervening), Judgment, I.C.J. Reports, I. C. J. Reports 2002,p. 441, paragraph 288).

The OPSD, to which only States parties to at least one of theGeneva Conventions can become party, provides for compulsoryjurisdiction of the ICJ for all disputes concerning theinterpretation or application of the Conventions, unless theparties to the dispute agree to arbitration or conciliation. ThisProtocol has never been applied in practice, and the modestnumber of parties it has attracted shows that compulsorysettlement of disputes in law of the sea matters, if it is to bepractically relevant, must be an integral part of the instrumentdealing with the substance; a lesson learned by the Third UnitedNations Conference on the Law of the Sea (1973-1982) in draftingthe 1982 Convention.

The importance of the Geneva Conventions is currently mostly historical, as an expression of the “traditional law of the sea”,namely, the law prevailing before the transformations in the international community and in its assessment of the uses of the seas that brought about the Third United Nations Conference on the Law of the Sea. The Conventions were adopted less than a decade before the famous speech by Arvid Pardo at the General Assembly in 1967 that started the process for the complete renewal of the law of the sea, and entered into force just a few years before that event. This explains why, notwithstanding theirintrinsic legal quality, they were soon seen by a majority of theStates as obsolete. Under article 311, paragraph 1, of the UnitedNations Convention on the Law of the Sea of 1982, the 1982 Convention “shall prevail, as between States Parties, over the Geneva Conventions on the Law of the Sea of 29 April 1958”. The 155 parties to the 1982 Convention include most of the States bound by the Geneva Conventions; the latter Conventions remain binding only as between, or in the relationships with, the few

States that are parties to the relevant Geneva Convention and notparties to the 1982 Convention. This is, in particular, the case of the United States, Colombia, Israel and Venezuela.

Many provisions of the Geneva Conventions, at the time of their adoption, corresponded to customary international law. This seemsparticularly true as regards the CHS, most of which has been transported into the 1982 Convention, and whose preamble explicitly specifies that its purpose is “to codify the rules of international law relating to the high sea”. This provision is not repeated in the other Geneva Conventions. Still, a number of provisions in the CTS are set out in the 1982 Convention and can be seen as corresponding to customary law. Moreover, the basic provisions of the CCS, as remarked above, have been indicated as contributing to the “crystallization” of the customary notion of the continental shelf and still correspond to customary law.

Fisheries and the ‘tragedy of the commons’

The tragedy of the commons is an economics theory by Garrett Hardin, according to which individuals, acting independently and rationally according to each one's self-interest, behave contraryto the whole group's long-term best interests by depleting some common resource. The concept is often cited in connection with sustainable development, meshing economic growth and environmental protection, as well as in the debate over global warming. "Commons" can include the atmosphere, oceans, rivers, fish stocks, national parks and any other shared resource. The tragedy of the commons has particular relevance in analyzing behavior in the fields of economics, evolutionary psychology, anthropology, game theory, politics, taxation, and sociology. Some also see the "tragedy" as an example of emergent behavior, the outcome of individual interactions in a complex system.

History

The enclosure movements in England (which led to over 5000 in closure Acts between 1750 and 1860) prompted the analysis of thiseconomic principle, probably known to Adam Smith.[1] In 1833

William Forster Lloyd published a pamphlet concerning European land tenure, specifically of herders sharing a common parcel of land, on which they are each entitled to let their cows graze. Bythis time, the English spinning and cloth-making industry had created an increased demand for wool. In English villages (as with mountain countries in Europe), shepherds had sometimes grazed their sheep in common areas, and sheep ate grass more severely than cows. Overgrazing could result because for each additional sheep, a herder could receive benefits, while the group shared damage to the commons. If all herders made this individually rational economic decision, the common could be depleted or even destroyed, to the detriment of all.[2]

The same concept is sometimes called the "tragedy of the fishers," because fishing too many fish before or during breedingcould cause stocks to plummet

Overfishing

400 tons of jack mackerel caught by a Chilean purse seiner

Overfished US stocks, 2010

Overfishing is a form of overexploitation in which fish stocksare depleted to unacceptable levels, regardless of water bodysize. Resource depletion, low biological growth rates, andcritically low biomass levels (e.g. by critical dispensationgrowth properties) result from overfishing. For example,overfishing of sharks has led to the upset of entire marineecosystems.[1]

The ability of a fishery to recover from overfishing depends onwhether the ecosystem's conditions are suitable for the recovery.Dramatic changes in species composition can result in anecosystem shift, where other equilibrium energy flows involvespecies compositions different from those that had been presentbefore the depletion of the original fish stock. For example,once trout have been overfished, carp might take over in a waythat makes it impossible for the trout to re-establish a breedingpopulation.

Instances

Fishing down the food web

Examples of overfishing exist in areas such as the North Sea ofEurope, the Grand Banks of North America and the East China Seaof Asia. In these locations, overfishing has not only proveddisastrous to fish stocks but also to the fishing communitiesrelying on the harvest. Like other extractive industries such asforestry and hunting, fisheries are susceptible to economicinteraction between ownership or stewardship and sustainability,otherwise known as the tragedy of the commons.

The Peruvian coastal anchovy fisheries crashed in the 1970safter overfishing and an El Niño season largely depletedanchovies from its waters. Anchovies were a major naturalresource in Peru; indeed, 1971 alone yielded 10.2 millionmetric tons of anchovies. However, the following five yearssaw the Peruvian fleet's catch amount to only about 4million tons. This was a major loss to Peru's economy.

The collapse of the cod fishery off Newfoundland, and the1992 decision by Canada to impose an indefinite moratoriumon the Grand Banks, is a dramatic example of theconsequences of overfishing.

The sole fisheries in the Irish Sea, the west EnglishChannel, and other locations have become overfished to thepoint of virtual collapse, according to the UK government'sofficial Biodiversity Action Plan. The United Kingdom has

created elements within this plan to attempt to restore thisfishery, but the expanding global human population and theexpanding demand for fish has reached a point where demandfor food threatens the stability of these fisheries, if notthe species' survival.

Many deep sea fish are at risk, such as orange roughly,Patagonian tooth fish, and sablefish. The deep sea is almostcompletely dark, near freezing and has little food. Deep seafish grow slowly because of limited food, have slowmetabolisms, low reproductive rates, and many don't reachbreeding maturity for 30 to 40 years. A fillet of orangeroughly at the store is probably at least 50 years old. Mostdeep sea fish are in international waters, where there areno legal protections. Most of these fish are caught by deeptrawlers near seamounts, where they congregate because offood. Flash freezing allows the trawlers to work for days ata time, and modern fish finders target the fish with ease.

Blue walleye went extinct in the Great Lakes in the 1980s.Until the middle of the 20th century, it was a commerciallyvaluable fish, with about a half million tonnes being landedduring the period from about 1880 to the late 1950s, whenthe populations collapsed, apparently through a combinationof overfishing, anthropogenic eutrophication, andcompetition with the introduced rainbow smelt.

Consequences

Atlantic cod stocks were severely overfished in the 1970s and1980s, leading to their abrupt collapse in 1992

According to a 2008 UN report, the world's fishing fleets arelosing US$50 billion each year through depleted stocks and poorfisheries management. The report, produced jointly by the WorldBank and the UN Food and Agriculture Organization (FAO), assertsthat half the world's fishing fleet could be scrapped with nochange in catch. In addition, the biomass of global fish stockshave been allowed to run down to the point where it is no longerpossible to catch the amount of fish that could be caught.Increased incidence of schistosomiasis in Africa has been linkedto declines of fish species that eat the snails carrying thedisease-causing parasites. Massive growth of jellyfishpopulations threaten fish stocks, as they compete with fish forfood, eat fish eggs, and poison or swarm fish, and can survive inoxygen depleted environments where fish cannot; they wreakmassive havoc on commercial fisheries. Overfishing eliminates amajor jellyfish competitor and predator exacerbating thejellyfish population explosion.

Types

There are three recognized types of biological overfishing:growth overfishing, recruit overfishing and ecosystemoverfishing.

Growth overfishing

Growth overfishing occurs when fish are harvested at an averagesize that is smaller than the size that would produce the maximumyield per recruit. A recruit is an individual that makes it tomaturity, or into the limits specified by a fishery, which areusually size or age.[11] This makes the total yield less than itwould be if the fish were allowed to grow to an appropriate size.It can be countered by reducing fishing mortality to lower levelsand increasing the average size of harvested fish to a size thatwill allow maximum yield per recruit.[12][13]

Recruitment overfishing

Recruitment overfishing occurs when the mature adult (spawningbiomass) population is depleted to a level where it no longer hasthe reproductive capacity to replenish itself—there are notenough adults to produce offspring. Increasing the spawning stockbiomass to a target level is the approach taken by managers torestore an overfished population to sustainable levels. This isgenerally accomplished by placing moratoriums, quotas and minimumsize limits on a fish population.

Ecosystem overfishing

Ecosystem overfishing occurs when the balance of the ecosystem isaltered by overfishing. With declines in the abundance of largepredatory species, the abundance of small forage type increasescausing a shift in the balance of the ecosystem towards smallerfish species.

Acceptable levels

The notion of overfishing hinges on what is meant by anacceptable level of fishing. More precise biological andbioeconomic terms define acceptable level as follows:

Biological overfishing occurs when fishing mortality hasreached a level where the stock biomass has negativemarginal growth (reduced rate of biomass growth), asindicated by the red area in the figure. (Fish are being

taken out of the water so quickly that the replenishment ofstock by breeding slows down. If the replenishment continuesto diminish for long enough, replenishment will go intoreverse and the population will decrease.)

Economic or bio economic overfishing additionally considersthe cost of fishing when determining acceptable catches.Under this framework, a fishery is considered to beoverfished when catches exceed maximum economic yield whereresource rent is at its maximum. Fish are being removed fromthe fishery so quickly that the profitability of the fisheryis sub-optimal. A more dynamic definition of economicoverfishing also considers the present value of the fisheryusing a relevant discount rate to maximize the flow ofresource rent over all future catches.

The Traffic Light colour convention, showing the concept ofHarvest Control Rule (HCR), specifying when a rebuilding plan ismandatory in terms of precautionary and limit reference pointsfor spawning biomass and fishing mortality rate.

Harvest control rule

A model proposed in 2010 for predicting acceptable levels offishing is the Harvest Control Rule (HCR), which is a set oftools and protocols with which management has some direct controlof harvest rates and strategies in relation to predicting stockstatus, and long-term maximum sustainable yields. Constant catchand constant fishing mortality are two types of simple harvestcontrol rules.

Input and output orientations

Fishing capacity can also be defined using an input or outputorientation.

An input-oriented fishing capacity is defined as the maximumavailable capital stock in a fishery that is fully utilized at the maximum technical efficiency in a given time period, given resource and market conditions.

An output-oriented fishing capacity is defined as the maximum catch a vessel (fleet) can produce if inputs are fully utilized given the biomass, the fixed inputs, the age structure of the fish stock, and the present stage of technology.

Technical efficiency of each vessel of the fleet is assumednecessary to attain this maximum catch. The degree of capacityutilization results from the comparison of the actual level ofoutput (input) and the capacity output (input) of a vessel or afleet.

Mitigation

With present and forecast world population levels it is notpossible to solve the overfishing issue however, there aremitigation measures that can save selected fisheries andforestall the collapse of others.

In order to meet the problems of overfishing, a precautionaryapproach and Harvest Control Rule (HCR) management principleshave been introduced in the main fisheries around the world. TheTraffic Light colour convention introduces sets of rules based onpredefined critical values, which could be adjusted as moreinformation is gained.

The United Nations Convention on the Law of the Sea treaty dealswith aspects of overfishing in articles 61, 62, and 65.

Article 61 requires all coastal states to ensure that the maintenance of living resources in their exclusive economic zones is not endangered by over-exploitation. The same article addresses the maintenance or restoration of populations of species above levels at which their reproduction may become seriously threatened.

Article 62 provides that coastal states: "shall promote the objective of optimum utilization of the living resources in the exclusive economic zone without prejudice to Article 61"

Article 65 provides generally for the rights of, inter alia,coastal states to prohibit, limit, or regulate the exploitation of marine mammals.

Overfishing can be viewed as a case of the tragedy of thecommons; in that sense, solutions would promote property rights,such as privatization and fish farming. Daniel K. Benjamin, inFisheries are Classic Example of the "Tragedy of the Commons", citesresearch by Grafton, Squires, and Fox to support the idea thatprivatization can solve the overfishing problem:[20]

According to recent research on the British Columbia halibut fishery, wherethe commons has been at least partly privatized, substantial ecological andeconomic benefits have resulted. There is less damage to fish stocks, thefishing is safer, and fewer resources are needed to achieve a given harvest.

Another possible solution, at least for some areas, is fishingquotas, so fishermen can only legally take a certain amount offish. A more radical possibility is declaring certain areas ofthe sea "no-go zones" and makes fishing there strictly illegal,so the fish in that area have time to recover and repopulate.

Controlling consumer behavior and demand is a key in mitigatingaction. Worldwide, a number of initiatives emerged to provideconsumers with information regarding the conservation status ofthe seafood available to them. The Guide to Good Fish Guideslists a number of these.

Fishing quotas

A model of the interaction between fish and fishers showed thatwhen an area is closed to fishers, but there are no catchregulations such as individual transferable quotas, fish catchesare temporarily increased but overall fish biomass is reduced,resulting in the opposite outcome from the one desired forfisheries. Thus, a displacement of the fleet from one locality toanother will generally have little effect if the same quota istaken. As a result, management measures such as temporaryclosures or establishing a marine protected area of fishing areasare ineffective when not combined with individual fishing quotas.An inherent problem with quotas is that fish populations varyfrom year to year. A study has found that fish populations risedramatically after stormy years due to more nutrients reachingthe surface and therefore greater primary production. To fishsustainably, quotas need to be changed each year to account forfish population.

Individual transferable quotas

Individual transferable quotas (ITQs) are fishery rationalizationinstruments defined under the Magnuson-Stevens FisheryConservation and Management Act as limited access permits toharvest quantities of fish. Fisheries scientists decide theoptimal amount of fish (total allowable catch) to be harvested ina certain fishery. The decision considers carrying capacity,regeneration rates and future values. Under ITQs, members of afishery are granted rights to a percentage of the total allowablecatch that can be harvested each year. These quotas can befished, bought, sold, or leased allowing for the least costvessels to be used. ITQs are used in New Zealand, Australia,Iceland, Canada, and the United States. Only three ITQ programshave been implemented in the United States due to a moratoriumsupported by Ted Stevens.

In 2008, a large scale study of fisheries that used ITQs comparedto ones that didn't provided strong evidence that ITQs can helpto prevent collapses and restore fisheries that appear to be indecline.

Fishing suspension

China bans fishing in the South China Sea for a period each year.

Benefits of under fishing

Deliberately under fishing to increase long term fish stocks hasbeen proposed as a way fisherman can maximize their yields in thelong run.

Resistance from fishermen

There is always disagreement between fishermen and governmentscientists... Imagine an overfished area of the sea in the shapeof a hockey field with nets at either end. The few fish lefttherein would gather around the goals because fish likestructured habitats. Scientists would survey the entire field,make lots of unsuccessful hauls, and conclude that it containsfew fish. The fishermen would make a beeline to the goals, catchthe fish around them, and say the scientists do not know whatthey are talking about. The subjective impression the fishermenget is always that there's lots of fish - because they only go toplaces that still have them... fisheries scientists survey andcompare entire areas, not only the productive fishing spots. –Fisheries scientist Daniel Pauly

The fishing capacity problem is not only related to the conservation of fish stocks but also to the sustainability of fishing activity. Causes of the fishing problem can be found in the property rights regime of fishing resources. Overexploitation and rent dissipation of fishermen arise in open-access fisheries as was shown in Gordon.

In open-access resources like fish stocks, in the absence ofa system like individual transferable quotas, the impossibility of excluding others provokes the fishermen whowant to increase catch to do so effectively by taking someone else' share, intensifying competition. This tragedy

of the commons provokes a capitalization process that leads them to increase their costs until they are equal to their revenue, dissipating their rent completely.

Removal of subsidies

Several scientists have called for an end to subsidies paid todeep sea fisheries. In international waters beyond the 200nautical mile exclusive economic zones of coastal countries, manyfisheries are unregulated, and fishing fleets plunder the depthswith state-of-the-art technology. In a few hours, massive netsweighing up to 15 tons, dragged along the bottom by deep-watertrawlers, can destroy deep-sea corals and sponge beds that havetaken centuries or millennia to grow. The trawlers can targetorange roughy, grenadiers, or sharks. These fish are usuallylong-lived and late maturing and their populations take decades,even centuries to recover.

Fisheries scientist Daniel Pauly and economist Ussif RashidSumaila have examined subsidies paid to bottom trawl fleetsaround the world. They found that US$152 million per year arepaid to deep-sea fisheries. Without these subsidies, global deep-sea fisheries would operate at a loss of $50 million a year. Agreat deal of the subsidies paid to deep-sea trawlers is tosubsidize the large amount of fuel required to travel beyond the200 mile limit and drag weighted nets. "There is surely a betterway for governments to spend money than by paying subsidies to afleet that burns 1.1 billion litres of fuel annually to maintainpaltry catches of old growth fish from highly vulnerable stocks,while destroying their habitat in the process" – Pauly.

"Eliminating global subsidies would render these fleetseconomically unviable and would relieve tremendous pressure on over-fishing and vulnerable deep-sea ecosystems" – Sumaila.

Consumer awareness

Main article: Sustainable seafood

Sustainable seafood is a movement that has gained momentum asmore people become aware of overfishing and environmentallydestructive fishing methods. Sustainable seafood is seafood fromeither fished or farmed sources that can maintain or increaseproduction in the future without jeopardizing the ecosystems fromwhich it was acquired. In general, slow-growing fish thatreproduce late in life, such as orange roughly are vulnerable tooverfishing. Seafood species that grow quickly and breed young,such as anchovies and sardines, are much more resistant tooverfishing. Several organizations, including the MarineStewardship Council (MSC), and Friend of the Sea , certify seafood fisheries as sustainable.

The Marine Stewardship Council has developed an environmentalstandard for sustainable and well-managed fisheries.Environmentally responsible fisheries management and practicesare rewarded with the use of its blue product ecolabel. Consumersconcerned about overfishing and its consequences are increasinglyable to choose seafood products that have been independentlyassessed against the MSC's environmental standard. This enablesconsumers to play a part in reversing the decline of fish stocks.As of February 2012, over 100 fisheries around the world havebeen independently assessed and certified as meeting the MSCstandard. Their where to buy page lists the currently availablecertified seafood. As of February 2012 over 13,000 MSC-labeledproducts are available in 74 countries around the world. Fish &Kids is an MSC project to teach schoolchildren about marineenvironmental issues, including overfishing.

The Monterey Bay Aquarium's Seafood Watch Program, although notan official certifying body like the MSC, also provides guidanceon the sustainability of certain fish species. Some seafoodrestaurants have begun to offer more sustainable seafood options.The Seafood Choices Alliance is an organization whose membersinclude chefs that serve sustainable seafood at theirestablishments. In the US, the Sustainable Fisheries Act definessustainable practices through national standards. Although thereis no official certifying body like the MSC, the National Oceanic

and Atmospheric Administration has created Fish Watch to helpguide concerned consumers to sustainable seafood choices.

Fish farming

In 2009, researchers in Australia managed for the first time tocoax southern blue fin tuna to breed in landlocked tanks, openingup the possibility of using fish farming as a way to save thespecies from the problems of overfishing in the wild.

ADDENDUM

Daniel Pauly, a fisheries scientist well known for pioneeringwork on the human impacts on global fisheries, comments:

"It is almost as though we use our military to fight the animals in theocean. We are gradually winning this war to exterminate them. And to seethis destruction happen, for nothing really – for no reason – that is a bitfrustrating. Strangely enough, these effects are all reversible, all theanimals that have disappeared would reappear, all the animals that weresmall would grow, all the relationships that you can't see any more wouldre-establish themselves, and the system would re-emerge. So that's onething to be optimistic about. The oceans, much more so than the land, arereversible..."

2.1 Pre LOSC developmentsMeasures to conserve and manage fisheries started in pre LOSC erastarted after the Bering Sea Fur seal case between Britain andthe United States of America (USA) over rights to harvest sealsin the Alaska territory of the US.The tribunal seized to adjudicate on the matter requested theparties to come up with sealing regulations. The parties came upwith sealing regulations such as; Moratorium on Seals, vesselslicensing, catch records etc. Most Convention concluded aroundthat time, adopted such measures for instance the InternationalConvention for the regulation of whaling carried with it amoratorium on commercial whaling. The goal for such a moratoriumwas to avoid a depletion of fish stocks.

Followed was the 1945 Truman Declaration on fishing whichemphasized the need for coastal states to have fishing right overcontiguous zones of the high seas. This declaration contributed nthe allocation of Exclusive Economic Zones (EEZ) in LOSC III. The1958 Convention on fishing carried an important tool forsustainable fisheries management. It provides in article2 thathigh seas fishing should be conserve to ensure maximum supply offood and other marine products.

2.2 Post LOSC Development.In Post LOSC era, agenda 21supra (Anon binding implementationplan of the United Nations with regards to sustainabledevelopment) recognized LOSC as providing the fundamentalobligation for fisheries conservationThis implies that LOSC has the primary obligation to providemeasures to conserve and manage all fisheries. This also meansthat subsequent instruments concluded after LOSC must be consistwith LOSC in the conservation and management of fisheries.The fisheries regime in LOSC is broad and complex, with coastalstates enjoying sovereign rights to fish in all areas adjacent tothe high seas, and freedom of fishing in the high seas for allstates. The fisheries regime in LOSC is broad and complex, withcoastal states enjoying sovereign rights to fish in all areasadjacent to the high seas, and freedom of fishing in the highseas for all states. LOSC on the other hand have been criticizedfor not providing elaborate measures to conserve and managefisheries. The relevant instruments such as the CBD, Fish stocksagreements (FSA) and the Code of Conduct for Responsible Fishingconcluded after LOSC, turns to fill in the gaps contained in theLOSC for the conservation and management of fisheries.

LIVING RESOURCES IN RELATION TO LOSC REGIME

Territorial Sea and Contiguous Zone Section

Sec. 1. GENERAL PROVISIONSArticle 2Legal status of the territorial sea, of the air space over the territorial sea and of its bed and subsoil.

1) The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.

2) This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.

3) The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law.

SECTION 4 CONTIGUOUS ZONEArticle 33

1) In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to:

a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;

b) punish infringement of the above laws and regulationscommitted within its territory or territorial sea.

2) The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorialsea is measured.

Article 49Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed and subsoil

1) The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines drawn in accordance with article 47, described as archipelagic waters, regardless of their depth or distance from the coast.

2) This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and subsoil, and the resources contained therein.

3) This sovereignty is exercised subject to this Part.4) The regime of archipelagic sea lanes passage established in

this Part shall not in other respects affect the status of the archipelagic waters, including the sea lanes, the exercise by the archipelagic State of its sovereignty over such waters and their air space, bed and subsoil, and the resources contained therein.

Article 56Rights, jurisdiction and duties of the coastal State in the exclusive economic zone.

1) In the exclusive economic zone, the coastal State has:a) sovereign rights for the purpose of exploring and

exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, suchas the production of energy from the water, currents and winds;

Article 61 Conservation of the living resources1) The coastal State shall determine the allowable catch of the

living resources in its exclusive economic zone.2) The coastal State, taking into account the best scientific

evidence available to it, shall ensure through proper conservation and management measures that the maintenance ofthe living resources in the exclusive economic zone is not endangered by over-exploitation. As appropriate, the coastalState and competent international organizations, whether subregional, regional or global, shall cooperate to this end.

3) Such measures shall also be designed to maintain or restore populations of harvested species at levels which can producethe maximum sustainable yield, as qualified by relevant

environmental and economic factors, including the economic needs of coastal fishing communities and the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether sub regional, regional or global

4) In taking such measures the coastal State shall take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened.

5) Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whethersub regional, regional or global, where appropriate and withparticipation by all States concerned, including States whose nationals are allowed to fish in the exclusive economic zone.

Article 62 Utilization of the living resources1. The coastal State shall promote the objective of optimum

utilization of the living resources in the exclusive economic zone without prejudice to article 61.

2. The coastal State shall determine its capacity to harvest the living resources of the exclusive economic zone. Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements and pursuant to the terms, conditions, laws and regulations referred to in paragraph 4, give other States access to the surplus of the allowable catch, having particular regard to the provisions of articles 69 and 70, especially in relation to the developing States mentioned therein.

3. In giving access to other States to its exclusive economic zone under this article, the coastal State shall take into account all relevant factors, including, inter alia, the significance of the living resources of the area to the economy of the coastal State concerned and its other national interests, the provisions of articles 69 and 70, the requirements of developing States in the sub region or region in harvesting part of the surplus and the need to minimize economic dislocation in States whose nationals havehabitually fished in the zone or which have made substantialefforts in research and identification of stocks.

4. Nationals of other States fishing in the exclusive economic zone shall comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal State. These laws and regulationsshall be consistent with this Convention and may relate, inter alia, to the following:a) licensing of fishermen, fishing vessels and equipment,

including payment of fees and other forms of remuneration, which, in the case of developing coastal States, may consist of adequate compensation in the field of financing, equipment and technology relating to the fishing industry;

b) determining the species which may be caught, and fixingquotas of catch, whether in relation to particular stocks or groups of stocks or catch per vessel over a period of time or to the catch by nationals of any State during a specified period;

c) regulating seasons and areas of fishing, the types, sizes and amount of gear, and the types, sizes and number of fishing vessels that may be used.

d) fixing the age and size of fish and other species that may be caught;

e) specifying information required of fishing vessels, including catch and effort statistics and vessel position reports;

f) requiring, under the authorization and control of the coastal State, the conduct of specified fisheries

research programmes and regulating the conduct of such research, including the sampling of catches, disposition of samples and reporting of associated scientific data;

g) the placing of observers or trainees on board such vessels by the coastal State;

h) the landing of all or any part of the catch by such vessels in the ports of the coastal State;

i) terms and conditions relating to joint ventures or other cooperative arrangements;

j) requirements for the training of personnel and the transfer of fisheries technology, including enhancementof the coastal State's capability of undertaking fisheries research;

k) enforcement procedures.5. Coastal States shall give due notice of conservation and

management laws and regulations.

Article 63Stocks occurring within the exclusive economic zones oftwo or more coastal States or both within the exclusive economic zone and in an area beyond and adjacent to it

1) Where the same stock or stocks of associated species occur within the exclusive economic zones of two or more coastal States, these States shall seek, either directly or through appropriate sub regional or regional organizations, to agreeupon the measures necessary to coordinate and ensure the conservation and development of such stocks without prejudice to the other provisions of this Part.

2) Where the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone, the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate sub regional orregional organizations, to agree upon the measures necessaryfor the conservation of these stocks in the adjacent area.

Article 77Rights of the coastal State over the continental shelf

1) The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.

2) The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State.

3) The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation. 4. The natural resources referred to in this Part consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move exceptin constant physical contact with the seabed or thesubsoil.

Article 76 Definition of the continental shelfThe continental shelf of a coastal State comprises the seabed andsubsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

Article 116Right to fish on the high seas.All States have the right for their nationals to engage in fishing on the high seas subject to:

a) Their treaty obligationsb) The rights and duties as well as the interests of coastal

States provided for, inter alia, in article 63, paragraph

2, and articles 64 to 67; and

c) The provisions of this section.

READINGS:

1. Law of the Sea Convention 19892. International Law of the Sea Textbook3. International Conventions Concerning Oil Pollution

at Sea; Western Reserve Journal of International Law

4. The Law Relating to Pollution of the Seas,in AllanD.Mcknight, Pauline Marstrand and T.Craig

LAW OF THE SEA PRESENTATION TOPICS:

1. PROTECTION OF THE MARINE ENVIRONMENT2. INTERNATIONAL LEGAL REGULATIONS OF MARINE

FISHERIES AND NAVAL ACTIVITIES IN THE WORLDOCEAN

GROUP MEMBERS (GROUP 4)ADMISSION NO.

1. BETTY NDUNGE WANJALA

2. KENYANI LYDIA MISE

3. NAKOVA EMMACULATE

4. VINCENT ANDOBE

5. ELMI

6. FAKI ABUBAKAR

7. HILLARY

8. KELLY WALIAULA

9. MUHAMMED

10. JAMLECK MUREITHI