Part XII: The General Obligation

In one line

Article 192 is nine words and it is the whole of MU's Module III: States have the obligation to protect and preserve the marine environment.

In exam wording: articles 192 to 196 of the United Nations Convention on the Law of the Sea 1982 state the general obligations of Part XII: article 192 imposes on States the obligation to protect and preserve the marine environment; article 193 preserves their sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with that duty; article 194 requires all measures necessary to prevent, reduce and control pollution of the marine environment from any source; article 195 forbids the transfer of damage or hazards or the transformation of one type of pollution into another; and article 196 requires measures concerning the use of technologies and the introduction of alien or new species.

Article 192

States have the obligation to protect and preserve the marine environment.

Nine words, no qualification, no threshold, no exception. It is the shortest general environmental obligation in any treaty and it has been given its full width: in the South China Sea arbitration the tribunal held that China had violated articles 192 and 194 by its island-building on coral reefs and by tolerating destructive harvesting by its fishing vessels, and in its advisory opinion of 21 May 2024 the Tribunal for the Law of the Sea held that article 192 applies to climate change impacts as well.

Two verbs, and they are different. To protect is to prevent future damage; to preserve is to maintain or improve the present condition. The second is more demanding than the first.

Article 193

States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment.

This is Stockholm Principle 21 again, in a treaty, in the marine context. The sovereign right is preserved and it is expressly made subject to the article 192 duty.

Article 194: the operative article

Paragraph 1. States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonise their policies in this connection.

Four things to notice.

1. From any source. Land-based, seabed, dumping, vessels, atmosphere. Nothing is outside it, which is why the Tribunal could bring greenhouse gases within it in 2024.
2. All measures necessary. The obligation is to necessity, not to convenience.
3. Best practicable means at their disposal, and in accordance with their capabilities. That is where differentiation lives in this Convention, and it is why the standard of due diligence varies.
4. Prevent, reduce and control. Three verbs and a hierarchy: prevention first.