MALAYSIA and Singapore are party to the 1982 United Nations Convention on the Law of the Sea (Unclos). Malaysia ratified it on October 14, 1996 and Singapore, on November 17, 1994.
Unclos was adopted as a “constitution for the oceans,” in order to “settle all issues relating to the law of the sea,” and has been ratified by more than 160 parties, other than Malaysia and Singapore.
Unclos addresses a wide range of issues and includes as an integral part a system for the peaceful settlement of disputes. This is set out in Part XV of Unclos, which provides for a variety of dispute settlement procedures, including compulsory arbitration in accordance with a procedure contained in Annex VII.
The protection and preservation of the marine environment form a prominent component of the legal regime of Unclos. Its importance is recognised in the preamble in the following terms:
“Recognising the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilisation of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment…”
The substantive provisions relevant to the marine environment are found in Part XII. The obligations in Part XII apply to all states with respect to the marine environment in all maritime areas, both inside the national jurisdiction of states and beyond it. Accordingly, questions of sovereignty are irrelevant to the application of Part XII.
Article 192 says “States have the obligation to protect and preserve the marine environment.” The obligation extends both to “protection” of the marine environment from future damage and “preservation” in the sense of maintaining or improving its present condition.
Article 192 thus entails the positive obligation to take active measures to protect and preserve the marine environment, and by logical implication, entails the negative obligation not to degrade the marine environment.
International law relating to the environment also requires that states ensure that activities within their jurisdiction and control respect the environment of other states or of areas beyond national control.”
Thus, states have a positive duty to prevent, or at least mitigate’ significant harm to the environment when pursuing large-scale construction activities.
The obligation in Article 192 is further detailed in the subsequent provisions of Part XII, including Article 194, which concerns “pollution of the marine environment”. The term is defined in Article 1 to mean “the introduction by man, directly or indirectly, of substances… into the marine environment… which results or is likely to result in such deleterious effects as harm to living resources and marine life… (and) hindrance to… legitimate uses of the sea…”
Article 194 obliges state parties to take measures 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.
Now, Articles 192 and 194 set forth obligations not only in relation to activities directly taken by states and their organs, but also in relation to ensuring activities within their jurisdiction and control do not harm the marine environment. The obligation to “ensure” is an obligation of conduct. It requires due diligence in the sense of a state not only adopting appropriate rules and measures, but also a certain level of vigilance in their enforcement and the exercise of administrative control.
Part XII also includes Article 197 on cooperation. This requires states to cooperate on a global or regional basis, “directly or through competent international organisations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features.”
The final provisions of Part XII concern monitoring and environmental assessment. Article 204 requires states to endeavour as far as practicable to “observe, measure, evaluate and analyse… the risks or effects of pollution on the marine environment” and to keep under surveillance the effects of any activities which they “permit or in which they engage” in order to determine whether they are likely to pollute the marine environment.
Article 205 requires states to publish reports of the results from such monitoring to the competent international organisations, which should make them available to all states.
Finally, Article 206 relates to environmental impact assessments. It ensures that planned activities with potentially damaging effects may be effectively controlled and that other states are kept informed of their potential risks.
Prime Minister Anwar Ibrahim must have said all the right things to his Singapore counterpart Lee Hsien Loong, who has agreed to listen to Malaysia’s argument and reasoning against the reclamation of land on Pulau Batu Puteh.
“The Singaporean prime minister has agreed to look into the reasons given by the (Malaysian) task force on the environmental damage and border issues before making a final decision, but this won’t have any impact on the International Court of Justice’s (ICJ) decision.
“The ICJ’s decision placed Batu Puteh as Singapore’s sovereign territory. So in terms of land reclamation, they (Singapore) are following a legal decision.
“We have asked them to look into it because each time they reclaim the land, it has an impact on the environment and border. This issue must be resolved, and I’ve received their prime minister’s agreement to listen to our argument soon,” said Anwar.
Singapore may have sovereignty over Pulau Batu Puteh but, as explained above, questions of sovereignty are irrelevant to the application of Part XII of Unclos.
States have the obligation to protect and preserve the marine environment. – January 31, 2023.
Hafiz Hassan reads The Malaysian Insight.
* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.