Environment
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The 1982 Law of the Sea Convention: Fit for Purpose to Comprehensively Address Modern Day Marine Pollution? By Luke Gibbons Jr., LL.B (Dub.) (aur.num.), BCL (Oxon) (Dist.) (Hon. Sch.), PhD Candidate (Dub.)
At the time of drafting, the United Nations Convention on the Law of the Sea 1982 (hereinafter, UNCLOS) established for the first time a comprehensive framework for the protection of the marine environment. This was perceived as ground-breaking in contrast to previous attempts at codification in the Geneva Conventions of 1958 which contained only a handful of undeveloped provisions on environmental matters. This is attributable to the fact that UNCLOS was greatly informed by the increasing degree of environmental consciousness pertinent at the time subsequent to the UN Conference on the Human Environment at Stockholm in 1972. While it is true that UNCLOS may have been ground-breaking, in some respects UNCLOS has been outpaced by both practical developments in the severity of environmental challenges as evidenced by ever updated science and also normatively by modern environmental legal developments since its conclusion. Thus, this article will explore two things: firstly, the evident absence of modern environmental legal principles under the pollution provisions of UNCLOS. Secondly, the failure of UNCLOS to comprehensively address one of the most prevalent contemporary environmental issues facing the oceans of land based sources of marine pollution. Marine Pollution – Asking Questions of Comprehensiveness At the time of drafting, UNCLOS was innovative in that it was the first unilateral treaty to address marine pollution on a broad scale. While UNCLOS PART XII on Marine Pollution has far more provisions than any other marine environmental issue, some of the provisions under PART XII ought to be questioned in light of modern developments both with regards to actual environmental problems and contemporary environmental law. (a) The Definition of Pollution – An Implicit Precautionary Principle? No discussion of the comprehensiveness of the marine pollution provisions of UNCLOS would be complete without questioning the modernity of the definition of pollution in Article 1(1)(4). As an aside, from a textual perspective the fact the wording uses the gendered term “man” like many areas in UNCLOS is outmoded with modern non-gendered legal language and is reflective of 1980’s cognition. However, in contrast the definition arguably embodies the ‘living instrument’ thesis of UNCLOS and is thus malleable to modern day conceptions of marine pollution. This is posited as due to the definition’s “likely to” cause pollution language, it is contestably open to dynamic interpretation. Although the precautionary principle is not mentioned anywhere in UNCLOS as the first instruments referring to this principle did not appear until after UNCLOS, this “likely to” language could be construed as an embryonic pronouncement of the precautionary principle as bolstered by the mention of the principle in the South China Sea Arbitration when interpreting the Treaty. The possibility that the “likely to” language may have some equivalence to the precautionary principle is exceptionally important in responding to questions posed on the comprehensiveness of UNCLOS today. This is argued as new forms of pollution have arisen not envisioned in 1982 such as sonar and noise pollution. The somewhat flexible nature of the definition has allowed a convincing argument to be mooted that noise is in-
