Land-Based Pollution of the Sea and Due Diligence Obligations
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Journal of Law, Policy and Globalization www.niiskeO
ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online) I
Vol.60, 2017 HISTE
Land-Based Pollution of the Sea and Due Diligence Obligations
Akiko Takano
Graduate School of Global Environmental Studies, Kyoto University, Japan
Abstract
The purpose of this paper is to analyze whether States have an obligation to control land-based pollution into the
sea under Articles 207 and 213 of the United Nations Conventions on the Law of the Sea (UNCLOS), with
reference to the due diligence obligation developed in the two Advisory Opinions rendered by the International
Tribunal for the Law of the Sea and the recent Philippine v. China case. It is concluded that this obligation of due
diligence could fill part of the gap left by the lack of implementation of Articles 207 and 213 of UNCLOS,
which invite States to establish global and international rules to prevent, reduce and control pollution.
Keywords: law of the sea, land-based pollution, transboundary environmental harm, due diligence
1. Introduction
One of the most significant sources of marine pollution is land-based activities, which are estimated to cause
over 80 percent of all marine pollution'. Land-based pollution into the sea is of global significance due to the
possible transboundary effects of marine pollution. Thus, a series of releases of radioactive contaminated water
from the disaster-stricken Fukushima I (Fukushima Daiichi) nuclear power plant in March 2011 raised major
concerns about the pollution of the marine environment. Consequently, neighboring Pacific and Asian countries
2
have voiced concerns about both the environmental and economic effects of this source of marine pollution.
The purpose of this paper is to analyze whether States have an obligation to control land-based
pollution into the sea under Articles 207 (Pollution from land-based sources) and 213 (Enforcement with respect
to pollution from land-based sources) of the United Nations Conventions on the Law of the Sea (UNCLOS). In
particular, this paper examines how the due obligation developed in the Advisory Opinion of the Seabed
Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS) cases 17 (Responsibilities and
obligations of States sponsoring persons and entities with respect to activities in the Area)' and 21 (Request for
an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC)), as well as the new award
rendered in the Philippine v. China case6, could fill the gap left by the lack of implementation of Articles 207
and 213 of UNCLOS in relation to marine pollution in general and land-based pollution of the sea in particular.
2. Law of the Sea and Marine Pollution
In the context of the legal regime addressing marine pollution, UNCLOS is considered one of the most
comprehensive and complex multilateral treaties ever established within the law of the sea. It not only codified
existing customary law7 but also created many new concepts and rules.
2.1 Applicability of UNCLOS
Part XII of UNCLOS establishes provisions regarding the protection and preservation of the marine environment
on a global, regional and local basis. Any obligations regarding the protection and preservation of the marine
environment under other conventions i.e., specific obligations assumed by States under special conventions, with
respect to the protection and preservation of the marine environment - should be carried out in a manner
consistent with the general principles and objectives of this Convention, as indicated in Article 237 of UNCLOS.
1 World Wide Found for Nature(WWF) Marine Problem for Nature, [online] available at
http://wwf.panda.org/about our earth/blueplanet/problems/pollution/ (12 March 2017)
2 IAEA, IAEA Project Monitors Radioactive Release from Fukushima Accident on Asia-Pacific Marine Environment IAEA
News Centre (12 December 2012), online: IAEA <https://www.iaea.org/newscenter/news/iaea-project-monitors-radioactive-
release-fulkushima-accident-asia-pacific-marine-enviromnent>.
3 10 December 1982, 1833 U.N.T.S. 3 (entered into force 16 November 1994) [UNCLOS].
4 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory
Opinion of 1 February 2011, [2011] I.T.L.O.S., online: ITLOS,
<https://www.itlos.org/fileadmin/itlos/documents/cases/caseno_17/advop 010211.pdf> [ITLOS Advisory Opinion].
5 Requestfor an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April
2015, [2015] I.T.L.O.S., online: ITLOS,
https://www.itlos.org/fileadmin/itlos/documents/cases/caseno.2 1/advisoryopinion/C2 _AdvOp_02.04.pdf> [ITLOS
Advisory Opinion].
6 In re Arbitration Between the Republic of the Philippines and the People's Republic of China, PCA Case No. 2013-19,
Award (July 12, 2016), http://www.pca-cpa.org.
7Martin DIXON, The Law of the Sea in Susan Carolyn BREAU, ed., International Law, 3rd ed. (Oxford, England: Oxford
University Press, 2013) at 218.
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