Environmental disputes under the law of the sea convention

de coop6ration qui s'expriment dans ce nouvel instrument. La Convention d'Abidjan rentrera en vigueur deux mois apr6s le d6p6t du sixi~me instrument de ratification. Vu le succbs des conventions pr6c6dentes de Barcelone et de Koweit, il est probable qu'elle entrera en vigueur dans un d~lai relativement bref, peut-~tre au cours des deux prochaines ann6es. La signature de cette convention est d6jh encourageante pour la coop6ration internationale en mati~re d'environnement dans ha sousr6gion. Une fois de plus, l'approche r~gionale ou plut6t sous-r6gionale, aura permis de d6passer ce qui est r6alisable au niveau global. Le but plus ou moins avou6 des efforts qui ont conduit ~t la Conf6rence d'Abidjan 6taient d'aller plus vite et plus loin, sur un point particulier --la protection de l'environnement - - , et dans une r6gion precise - - la c6te occidentale de l'Afrique --, que la Conf6rence des Nations Unies

sur le droit de la mer. Les difficult6s actuelles que conna~t cette derni~re conf6rence montrent toute l'utilit6 de conf6fence & port6e limit~e mais capable, dans leur domaine sp6cifique, d'atteindre des r6sultats concrets et efficaces. La mesure de cette efficacit6 ne sera toutefois pleinement connue qu'~t la lumi~re des actions qui auront 6t6 prises la suite des r6solutions de la conf6rence, notamment, celles invitant le PNUE ~t 6tablir, pr6senter et mettre en oeuvre un document de programme approfondi pour la sous-r6gion, ainsi qu'une autre r6solution priant le directeur ex6cutif du PNUE d'augmenter les contributions du fonds de l'environnement, et de chercher des ressources financi~res suppl6mentaires susceptibles d'etre utilis6es pour la mise en oeuvre du plan d'action. Ces deux r6solutions principales sont pr6c6d6es d'une r6solution invitant toutes les parties habilit6es ~t signer, accepter, approuver ou ratifier la convention et le protocole,

ou ~ y adh6rer dans les meilleurs d61ais. Avant mOme que ce voeu ne soit pleinement exauc6, le plan d'action contenu dans l'acte final de la conf6rence s'est fix6 plusieur objectifs parmi lesquels figurent en bonne place l'61aboration d'accords plus sp6cifiques ainsi que l!am61ioration des 16gislations nationales visant la protection et la mise en valeur du milieu marin et des zones c6ti~res de la r6gion. 1 M. P. Angot et D. Kamaru, Marine Pollution Problems of the West African Coastal Countries of the Gulf of Guinea, 27 juillet 1976, PNUE, Nairobi, 54 pp. 2 Mission en Afrique de l'Ouest (1976) (2) Uniterra 1, p. 2 3 J. E. Portmann, Rome, FAO, FAO/PNUE WMPGG, 6 avril 1978. 4 M. Piquemal et M. Savini, Rome, FAO, FAO/PNUE W/L6063/c, 1979, 67 pp. 5 COI, Rapport sur la R~union internationale de travail COI/FAO/OMS/PNUE sur la pollution marine clans le Golfe de Guinde et zones adfaeentes, Parts, UNESCO G.E. 78/9452, 1978, 11 pages.

Environmental Disputes under the Law of the Sea Convention* b y A. O. A D E D E * * Introduction The Third United Nations Conference on the Law o f the Sea will hoM its lOth session in N e w York from 8 March to 24 April 1981 to continue to seek solutions to the outstanding issues found in certain articles o f the Draft Convention on the Law o f the Sea (Informal Text) produced at the end o f the 9th session o f the Conference, 29 August 1980 in Geneva. 1 The outcome o f the discussion at the l Oth session, 2 taken together'with the rest o f the articles o f the Draft Convention, may be said to reflect the basic features o f the actual Law o f the Convention, pending the solution o f remaining issues before the Convention itself is adopted and opened for signature at the end o f the final session o f the Conference in Caracas, Venezuela. Part XV of the Draft Convention deals with the comprehensive system for the settlement of disputes under the *Adapted from the lecture to be given by the author at the UNITAR Regional Seminar and Refresher Course in International Law foI Africa - Cairo, 28 February to 13 March 1981. **MA, PhD, LL.B. (USA). Formerly Head of Legal Division, Ministry of Foreign Affairs, Kenya. Currently of the Office of Legal AffaJ.ts, UN Secretariat, New York.

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Convention as a whole. The evolution and development o f the comprehensive system for the settlement of the Law of the Sea disputes on the basis of both the work of an Informal Working Group from 1974 to Spring 1976 and the work done since Summer 1976 by the Informal Henary of the Conference under the able leadership of its late President, Ambassador Hamilton Shirley Amerasinghe of Sri Lanka, has been the subject of extensive analysis. One such analysis a presented a modest drafting history of the articles in Part XV from 1974 to 1978. The analysis was based primarily on the disputes settlement system as contained in the Informal Composite Negotiating Text (CNT) 4 which the Conference produced at the end of its ninth session in New York in Summer 1977. It also included an indication of the new approaches to the dispute settlement system within the exclusive economic zone and disputes relating to maritime boundary delimitation, both of which were included among the seven outstanding core issues identified as such by the Conference at its seventh session in 1978 in Geneva and assigned to specific Negotiating Groups for discussion, s The other

extensive analysis 6 was aimed at tracing and updating the efforts the Conference continued to make in improving and streamlining the system during its eighth and ninth sessions ( 1 9 7 9 - 1 9 8 0 ) 7 which focussed upon the problem of sea-bed disputes, and maritime boundary disputes. 8 The purpose of the present article is to focus attention on the procedures for the settlement of environmental disputes under the Law of the Sea Convention in order to demonstrate the special attention they deserve. The article will thus show the contrast between the procedures adopted for the settlement of environmental disputes under the Convention with those adopted for the settlement of other disputes such as those relating to the coastal States management of the living reserves in the Exclusive Economic Zone (EEZ); those relating to the conduct and promotion of marine scientific research within the EEZ; those relating to the delimitation of maritime boundaries of the continental shelf and the EEZ between States with opposite or adjacent coasts; and, those arising from the exploration and exploitation of the international sea-bed 63

area. Before embarking on an analysis of the system for the settlement of environmental disputes under the Convention, it seems appropriate to point out first a basic view about environmental disputes in general.

of entry into the world market of certain products from developing countries thereby affecting their international trade. 12 Such discussions are clearly beyond the scope of the present analysis, limited to showing the rationale behind the claim for a special approach to environmental disputes based on avoidance as opposed to settlement. The preventive approach is clearly reflected in numerous global or regional conventions which are aimed at protecting the marine environment from land based pollution, vessels source pollution, and from pollution by any dumping activity. In this same effort of developing the law to intervene more effectively on behalf of the environment, Part XII of the Draft Law of the Sea Convention contains numerous substantive articles designed to achieve protection and prevention of the marine environment. But where the conduct of the actors in the ocean space results in the damage to the marine environment, resulting in a dispute between States, the Law of the Sea Convention in its Part XV, has established the procedures for settling such environmental disputes as explained below.

Special Approach to Environmental Disputes in General The view has been constantly expressed that, in the field of the protection and preservation of the environment, more efforts should be directed toward developing techniques for disputes avoidance as opposed to focusing upon the formulation of procedures for disputes settlement. The rationale for this view runs as follows: certain activities harmful to the environment may cause damage or injury for which no restoration could be appreciably achieved. Moreover, it is said that the environmental damage may be such that no amount of monetary compensation for reparation would constitute a satisfactory remedy for an aggrieved party. Thus, it would be preferable to emphazise the need to develop ways and means of avoiding or minimizing the occurrence of environmental damage and disputes in the first place, rather than the desire to establish modalities for giving effect to the Retaining Environmental Disputes for legal fights and interests of the parties, Full Settlement by the Compulsory Prothrough a dispute settlement mechanism, cedures of the Convention after the environmental damage has acIn order to enable the analysis to tually occurred. show the distinctive treatment of the This approach is at the root of the settlement of environmental disputes national laws of certain industrial States under the Law of the Sea Convention, which require the preparation of an Enit is necessary to quote the entire text vironmental Impact Statement or Enviof the relevant article of Part XV of the ronmental Assessment Document conConvention: 13 cerning a particular planned developmental activity. 9 This procedure, which Article 297 is now being followed by intergovern- Limitation on applicability o f section 2 mental institutions such as the World 1. Disputes relating to the interpretation Bank 1° is clearly aimed at achieving the or application of this Convention with necessary evaluation of the impact of a regard to the exercise by a coastal State particular developmental activity upon of its sovereign rights or jurisdiction prothe environment, leading hopefully to a vided for in this Convention, shall be rational decision as to alternative means, subject to the procedures specified in which may require additional expenses, section 2 in the following cases: to carry out the project without unduly (a) When it is alleged that a coastal State damaging the environment and avoiding has acted in contravention of the provithe disputes which may arise from com- sions of this Convention in regard to the peting rights and interests. The United freedoms and rights of navigation or Nations Environment Programme overflight or of the laying of submarine (UNEP) was the first to recognize this cables and pipelines and other internaunder its concept of "additionality", tionally lawful uses of the sea specified built into its environmental funding pro- in article 58; or (b) When it is alleged that any State in gramme. 1 Much has been said about the need exercising the aforementioned freedoms, to exercise caution not to use environ- rights or uses has acted in contravention mental reasons as pretexts for defeating of the provisions of this Convention or developmental projects in the develop- of laws or regulations established by the ing countries or for limiting the chances coastal State in conformity with this 64

Convention and other rules of international law not incompatible with this Convention; or (c) When it is alleged that a coastal State has acted in contravention of specified international rules and standards for the protection and preservation of the marine environment which are applicable to the coastal State and which have been established by this Convention or by a competent international organization or diplomatic conference acting in accordance with this Convention. 2. (a) Disputes relating to the interpretation or application of the provisions of this Convention with regard to marine scientific research shall be settled in accordance with section 2, except that the coastal State shall not be obliged to accept submission to such settlement any dispute arising out of: (i) the exercise by the coastal State of a right or discretion in accordance with article 246; or (ii) a decision by the coastal State to order suspension or cessation of a research project in accordance with article 253. (b) Disputes arising from an allegation by the researching State that with respect to a specific project the coastal State is not exercising its rights under articles 246 and 253 in a manner compatible with the provisions of this Convention shall be submitted, at the request of either party, to the conciliation procedure specified in section 2 of annex V, provided that the conciliation commission shall not call in question the exercise by the coastal State of its discretion to designate specific areas as referred to in paragraph 6 of article 246 or of its discretion to withhold consent in accordance with paragraph 5 of article 246. 3. (a) Disputes relating to the interpretation or application of the provisions of this Convention with regard to fisheries shall be settled in accordance with section 2, except that the coastal State shall not be obliged to accept the submission to such settlement of any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management regulations; (b) Where no settlement has been reached by recourse to the provisions of section 1, a dispute shall be submitted to the conciliation procedure specified

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in section 2 o f annex V, at the request o f any party to the dispute, when it is alleged that: (i) a coastal State has manifestly failed to comply with its obligations to ensure through proper conservation and management measures that the maintenance o f the living resources in the exclusive economic zone is not seriously endangered; (ii) a coastal State has arbitrarily refused to determine, upon the request o f another State, the allowable catch and its capacity to harvest the living resources with respect to stocks which that other State is interested in fishing; (iii) a coastal State has arbitrarily refused to allocate to any State, under the provisions o f articles 62, 69 and 70 and under the terms and conditions established b y the coastal State consistent with this Convention, the whole or part o f the surplus it has declared to exist. (c) In any case the conciliation commission shall not substitute its discretion for that o f the coastal State; (d) The report o f the conciliation commission shall be communicated to the appropriate international organizations;

(e) In negotiating agreements pursuant to articles 69 and 70 the parties, unless they otherwise agree, shall include a clause on measures which the parties shall take in order to minimize the possibility o f a disagreement concerning the interpretation or application of the agreement, and on how the parties should proceed if a disagreement nevertheless arises. Let it be noted at the outset that, in the chapeau o f the first paragraph o f the article, section 2 o f Part XV is mentioned. That is the section in which the compulsory procedure entailing binding decisions are established. The section includes, inter alia, articles on the four forums for such compulsory procedures which a party is free to choose, 14 and the competence o f such forums, is Paragraph 1 (b) o f the above article addresses itself to environmental disputes which, without any reservation or exception, are made subject to the compulsory procedures o f section 2 o f Part XV. The absence o f any exceptions in the above paragraph concerning environmental disputes is crucial in that it substantively distinguishes the treatment o f the envi-

1 UN Doc. A/Conf.62/WP.10/Rev.3, 27 August 1980. (See also Environmental Policy & L., 6 (3) (1980), p. 117.) 2 No further work was however done on the subject of disputes settlement by the Conference at the 10th session. 3 See e.g. Adede, Provegomena to the Disputes Settlement Part of the Law of the Sea Convention 10 N.Y.U. Journal of Int. L. Aris Politics, 253-393 (1977). 4 UN Doc. A/Conf.62]WP.10, 15 July 1977. 5 The seven negotiating Groups were established by the Conference in its decision of April 13, 1978. See UN Doc. A/Conf.62/62. 6 See e.g. Adede, Streamlining the System of Settlement of Disputes under the Law o f the Sea Convention 1 Pace Law Review 15-58 (1980). 7 The basic conference documents for those two years were UN Doc. A/Corff.62/WP.10/Rev.1 of 28 April 1979, UN Doc. A/Conf.62[WP.lO/Rev.2, of 11 April 1980, and UN Doc. A/ Conf.62[WP.10[Rev.3, of 27 August 1980. 8 For specific analysis of maritime boundary delimitation issue, see e.g. Adede, Toward the Formulation of the Rule on Delimitation of Sea Boundaries Between States with Adjacent or Opposite Coasts, 19 Va. J. Int. L 207-255 (1979). 9 An environmental Impact Statement, as distinguished from an environmental assessment, provides the legal basis according to which a party may invoke proceedings to prevent the carrying out of a particular project on environmental grounds and to ensure that all other alternative means have been fully weighed with regard to the execution of the project, as provided by the law in question requiring the Impact Statement. See e.g. the power of the National Environmental Protection Agency (NEPA) of U.S.A. 10 A recent controversy surrounding the World Bank involvement in the upper Mazaruni Dam project in Guyana, is a case in point. See WorldBank WeighsDisputed Guyana Dam Project New York Times 30 Oct. P.A.2. 11 S. Schneider-Sawiris, The concept of compensation in the Field of Trade and Environment in Georgia J. Int L and Comp. L. 357, at 361 (1975). 12 Consideration of such issues were projected in the research studies of the American Society of International Law. See 72 American Journal of International Law, 356, at 368 (1978). 13 Article 297, UN Doc. supra note 1 ; at 116-117. 14 In the order enumerated under article 197 of the Draft Convention, the four forums are: (a) The International Tribunal for the Law of the Sea constituted in accordance with annex VI; (b) the International Court of Justice; (c) An Arbitral Tribunal constituted in accordance with annex VII; (d) A special arbitral tribunal constituted in accordance with annex VIII. 15 See art. 288 of the Draft Convention. Other articles in this part deal with linking the noncompulsory procedures of Section I of part XV with the compulsory procedures, art. 286; Expert advice and assistance, Art. 289; Provisional measures, article 290; Access, article 291; Prompt release of vessels, article 292; Applicable law, art. 293; Preliminary proceedings, article 294; Exhaustion of local remedies, article 295, and t'mality and binding force of decision, article 296.

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ronmental disputes under the system from the treatment o f disputes relating to fisheries and scientific research within the exclusive economic zone, as shown below. Paragraph 2 o f the article, as can be seen from its chapeau, provides that scientific research disputes shall be settled in accordance with the compulsory procedures of section 2 o f Part XV. But sub-paragraph 2 (a) goes on to provide that the coastal State is under no obligation to submit the disputes arising from their exercise o f rights and discretion pursuant to b o t h articles 246 and 253. The settlement o f scientific research disputes relating to these two articles is, according to sub-paragraph 2 (b) above, to be through the conciliation procedures established under section 2 of annex V to the Convention. Distinguished from section 1 o f the annex dealing with traditional conciliation procedures, section 2 of annex V, to which reference is made in article 297 above, establishes a unique system more accurately described as "compulsory resort to conciliation". Under this procedure, parties to the dispute are under obligation to go to a conciliation procedure at the request o f any o f them. Thus it is the resort to the procedure that is compulsory. But the result o f the procedure itself is still n o t binding as it is in the traditional conciliation procedure provided for in article 284 o f the Convention. Paragraph 3 (a) of the article set out above similarly starts by providing that fisheries disputes are to be settled in accordance with section 2 o f Part XV. But it also continues to enumerate the specific category o f fisheries disputes which the coastal State is not under obligation to submit for settlement under the compulsory procedures. Paragraph 3 (b) o f the article then provides that the fisheries disputes excluded from settlement b y the compulsory procedures are, however, to be subject to settlement by the system o f compulsory resort to conciliation o f annex V described above. Thus, with respect to fisheries and scientific research disputes, compulsory resort to conciliation is the established procedure for settlement. The same system o f compulsory resort to conciliation o f section 2 o f annex V to the Convention is also the procedure now established under article 298 for the settlement o f disputes relating to the delimitation of maritime boundaries between States with opposite or adjacent coasts.

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It is evident, therefore, that of the various types of disputes which are likely to arise from activities within the exclusive economic zone, environmental disputes remains one of the categories of such disputes still retained for full settlement by the compulsory procedures of Part XV of the Convention. Separate compulsory procedures are also reserved for the settlement of the sea-bed disputes through the sea-bed Disputes Chamber of the International Tribunal for the Law of the Sea and as stipulated under relevant articles of Part XI of the Convention and the annexes related thereto dealing with the system and the institutional arrangements for the exploration and exploitation of the sea-bed area. Conclusions

It may be observed, that the States negotiating the Law of the Sea Convention have been consistently less reluctant to accept compulsory settlement procedures for environmental disputes under the comprehensive system of Part XV while they became increasingly more reluctant to accept such procedures for settling fisheries disputes. Earlier attempts in Part XV which tried to make the settlement of fisheries disputes also subject to the compulsory procedures under limited circumstances, were later completely rebuffed and finally abandoned. This occurred when the coastal States at the Conference devised the system, now reflected in

UNCLOS III

article 297 set out above, of segregating the types of disputes with respect to which compulsory settlement procedures are envisaged from the type of disputes with respect to which only conciliation would be the acceptable third-party procedure. To this latter category, fisheries disputes were the first to be assigned. The inclusion of scientific research disputes in this category was a later development, which also resulted in adding maritime boundary delimitation disputes to the list of those which are removed from compulsory procedures and made subject to settlement by conciliation. No such retreat from compulsory procedure was suggested for environmental disputes. The settlement of environmental disputes by the compulsory procedures of

article 297 must, however, also take into account the other relevant provisions concerning, for example, the institution of proceedings against vessels in article 228 of Part XII and the provision concerning prompt release of vessels under article 292 of Part XV of the Convention. Thus, under the Law of the Sea Convention, while the substantive Part XII has approached the environmental problems from the point of view of emphasizing the protection and preservation of the marine environment from pollution and other damage, Part XV has estabfished the compulsory settlement procedures appropriately suited for settling the unavoided disputes. []

The views expressed herein are those of the author and have no officialstanding.

Charter of Nature-UN Discussion At its 35th session, the United Nations General Assembly adopted a resolution asking member states to communicate their views and observations on the draft World Charter for Nature to the Secretary General. The draft Charter offers guidelines for conservation based on "the conviction that any act of man affecting nature must be guided and judged". At the same session a resolution sponsored by the Soviet Union proclaiming "the historical responsibility of states

for the preservation of nature on earth in the interests of present and future generations" was also adopted. (See Environmental Policy and Law, 7 (1) (1981), 32). Extracts are printed on page 91 from the verbatim records of the debates on these two subjects. Particularly interesting are the statements made by the Latin American countries, which illustrate yet again the distinction they insist on making between "nature" and "natural resources". []

Negotiations Adrift b y L E E K I M B A L L A N D A D O L F R. H. S C H N E I D E R *

Does an extensive US.Policy Review Process o f the whole o f the Draft Convention endanger the future o f a nearly negotiated treaty ?** Introduction: When the 10th Session commenced at New York, times and circumstances had drastically changed. Soon many of the participants realized, that the Conference had apparently not safely traversed the crossroads it had reached at the end of the

*Lee Kimball (MIA), Consultant to the United Methodist LOS-PROJECT in Washington, D.C.; Adolf R. H. Schneider (LL.B., Dr. jur.) Member ICEL & NGO - Observer at the Law of the Sea Conference. **A round-up of the first part of the 10th session of the Law of the Sea Conference, New York, March 9 to April 17, 1981. 66

9th Session. The fragility of the conference, the "sting of the dissatisfied", the large number of formidable internal and external conference obstacles looming in the background, the political "spill-over" resulting from the worsened relations between the Great Powers and last but not least the far reaching effect of a new US-Administration, seemed to have been grossly underestimated by many delegations. In particular, two events suddenly threatened to dissipate the optimism generated by the 9th Session to wrap up the Law of the Sea negotiations, at this,

at the time assumed last substantive session. The first of these decisive events was the defeat of President Carter and the election of President Reagan, resulting not only in a drastically revised attitude of US-poficy in national, economic, security matters and international affairs, but also causing a sweeping new assessment and review of all negotiation processes presently under way including that in UNCLOS III. The second event was the sudden death on 4 December 1980 of the longstanding serving President of the Law of the Sea Conference, Amb. Hamilton S. Amerasinghe, by which the intricate conference lost its excellent helmsman, who through stormy weather had guided the con-

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