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-Barr. Edetanlen Stephen.

We all played our parts in the current political system existing in our country, Nigeria, today. While some may consider themselves the sole or principal architect of this system, the present writer is not concerned with such disputation herein. My present concern, and a crucial one for that matter, is with the existing political system which I have refrained in this article from categorizing as “democracy” herein. A careful, not necessarily academic, investigation would easily reveal the rationale for my reluctance. What we have in Nigeria at the moment is akin to rulership in a kingdom. In political parlance, it could conveniently be termed dictatorship, neo-authoritarianism or ‘pseudo-militocracy’. I shall not engage myself in trying to find a justifiable basis for the present political system in Nigeria, as that is not of the moment here.

The pertinent issue that is completed for the present address is the manner in which

Nigeria is being ruled and what this may portend for the future, probably immediate. When the present President of our country, Nigeria, assumed that position in May 1999, many of us were most excited and many had the belief that the development would augur well for the country –I, particularly—especially when we considered his direct antecedent which was not so dissimilar to that of the revered former President of South Africa, Dr. Nelson Mandela. Obasanjo talked of how he has been renewed into a better man in the personality of a Christian. Honestly, not a few of the electorate were swayed by that idea. But lo and behold, the picture has been repainted in—doubtless—everyone’s conception of Obasanjo, few years thereafter! What sort of a President do we have in Nigeria now - leader or a ruler?

Personally, I am disappointed to admit this—having previously reposed some trust in him concerning Nigeria’s future—but the undiluted truth is that we have not a leader but a ruler as our President in Nigeria. A leader is one who embodies the wishes and aspirations of ‘his people’. He “leads” them in what they advocate or what their “popular” interest or demand is. On the other side of the spectrum, we have a ruler who ‘rules’ his supposed people irrespective of the people’s interests or demands. This latter paradigm represents Obasanjo’s current rule in Nigeria. In Obasanjo’s view, the people’s desire or interest have no place, or rather, should be in what he decides.

Without going into the merits or otherwise of the issues involved in some instances of Obasanjo’s display of his dictatorial whims, but for purely analogical purposes, let us reflect on the situation concerning Major Hamza El-Mustapha, Alhaji Asari Dokubo, Nwazurike, DSP Alamieyeseigha, Dr. Fasheun, Gani Adams and others . We all, I should expect, desire a united, corruption-free and prosperous Nigeria. But we will not achieve this by selective and vindictive “justice”. The way Obasanjo is going is to create relative peace for his rulership and leave the country in turmoil at the expiration of his rule –yes, I heard you. But believe this (if it is the only thing you will believe), Obasanjo will leave, dead or alive. Our ‘ruler’ does not tolerate opposition, his impatient with trouble-makers, dialogue or compromise is alien to him, he picks on those he perceives as troubling his reign and keeps them behind bars. Simple, peremptory solution! Please, disregard whatever ruse he employs through his various agents and agencies —legislators, Economic and Financial Crimes Commission (EFCC), and so on. We know his antics extend to the judiciary, but if you allege a man has contravened the law, let him be tried and judged in a court of “law”, for goodness’ sake.

But, Obasanjo will not do the above, will he? No. These people are there because he perceives them as threats or opposition to his rule. Or, does he mean to tell us that Sani Abacha’s family and ‘boys’ are the only living people who have committed the same societal ills and crimes that this particular set were/is persecuted for? Oh, it is alright, IBB is his friend (if you think IBB is guilty, then you have to produce the facts yourself, do not expect EFCC or Obasanjo’s ‘usual’ sources to avail you). Or, was/is Alamieyeseigha the only looter of public funds in government? If Obasanjo feels or felt so embarrassed by his shameful act, why has the man not been released to come and face the charges against him in the Southwark court, London? How come EFCC only chases and harasses those who do not dance to Obasanjo’s tune? Now, Obasanjo has done it again in Oyo State –the removal of Rashidi Ladoja.  

Another ramification of Obasanjo’s rulership was the ludicrous tourism commercial he has on world television. I hope some of you have seen the shamefully, embarrassing advertisement “our” President has on satellite Television in UK. The man (personally!) is shown saying “welcome to Nigeria, the heartbeat of Africa”, as if we do not have qualified people in charge of that aspect of tourism in Nigeria (or outside). Correctly me, if I am wrong, he is the only President in the world personally doing such commercials. Does he think Nigeria is his house or kingdom?

See this item also at  http://www.takingitglobal.org/express/panorama/article.html?ContentID=7041&start=&startpos=2500

                      (Academic coursework submitted by BARR. EDETANLEN O. STEPHEN)[1]

As is reflected in the heading, this paper will seek to carry out an overview of the above Convention (UNCLOS)[2], with particular focus on Part XII. During the course of this exercise, the writer would endeavour to address the following enquiries:

a)      What kind of environmental problem UNCLOS aims to resolve;

b)      What environmental principle UNCLOS employs to resolve the environmental problem;

c)      What international/domestic supervisory/monitoring functions UNCLOS provides to ensure compliance with it; and

d)      What international dispute settlement and/or other enforcement mechanism does UNCLOS establish to ensure effective implementation?

The United Nations Convention on the Law of the Sea 1982 (UNCLOS) is the result of the Third United Nations Conference on the Law of the Sea, which began its sitting in 1973. UCNLOS is a comprehensive framework Convention on the marine environment which became a legally binding document on 16^th of November, 1994. Before it, there had been other legal documents, legally binding and non-legally binding, in International Environmental Law which sought to address various existing or potential environmental problems. It may be pertinent to state here, rather than taking for granted, that reference to the obligation of States under UNCLOS as discussed in this paper takes into cognizance the provision under Art. 305 of UNCLOS; and where only provisions are stated, reference it meant to UNCLOS.

Environmental problem sought to be resolved by UNCLOS:

UNCLOS emerged as International Law’s response to an evolving, potential conflict situation in marine environment –seas and oceans. This was due to the fact that the oceans had long been subjected to the principle of “freedom of the seas”. It was not the exclusive preserve of any one nation, but for the use and exploration of all nations of the world. For security, economic, political and other reasons, coastal nations of the world had begun, unilaterally, to extend their territorial sovereignty to various limits on the seas outwards of their coastline, and to exert sovereign rights over these areas. Distant nations (flag states) seeking to carry out their economic, scientific, military and other marine activities in these areas often challenged the claims by the coastal States. There was the scramble for natural resources of the oceans and seabed by different nations. The marine resources and environment were being abused by unrestrained exploration, fishing and exploitation. The marine environment was being heavily polluted both intentionally and unintentionally to an extent that there were growing concerns about the ability of the environment to regenerate itself.

Consequent upon the above, things became more chaotic. Generally, there was lack of rule or orderliness in the marine environment. The potential for conflict was high, and increasing. A landmark illustration of the situation at that time was the so-called “Cod Wars” between Britain and Iceland in 1958, 1972 -1973 and November, 1973 to June, 1976. The issue was Britain did not recognize Iceland’s authority to extend its fishing limits and authority over the ocean from 4 miles to 12 miles, then from 12 miles to 50 miles, and eventually 200 miles from its coastline. This situation degenerated to a state where the countries’ naval ships were involved, and it took NATO to avert a potential war. As noted by the by Oceans and Law of the Sea division of the United Nations:

A tangle of claims, spreading pollution, competing demands for lucrative fish stocks in coastal waters and adjacent seas, growing tension between coastal nations' rights to these resources and those of distant-water fishermen, the prospects of a rich harvest of resources on the sea floor, the increased presence of maritime powers and the pressures of long-distance navigation and a seemingly outdated, if not inherently conflicting, freedom-of-the-seas doctrine - all these were threatening to transform the oceans into another arena for conflict and instability[3].

The above position is buttressed further by the PREAMBLE to UNCLOS, whish states in part, “Recognizing 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 utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment, …”[4]. Particularly, in relation to International Environmental Law, UNCLOS sought to protect and preserve the marine environment from pollution. For the purpose of emphasis, the meaning of “pollution of the marine environment” under UNCLOS is expressed in its Article 1, paragraph 4 thus:

            "pollution of the marine environment" means the introduction by man, directly     or indirectly, of substances or energy into the marine environment, including     estuaries, which results or is likely to result in such deleterious effects as harm            to living resources and marine life, hazards to human health, hindrance to             marine activities, including fishing and other legitimate uses of the sea,      impairment of quality for use of sea water and reduction of amenities;

In this light, major sources of pollution of the marine environment where addressed in UNCLOS. These sources are: land-based activities; vessel; drilling in the continental-shelf; seabed and subsoil mining; dumping; and from or through the atmosphere. This objective is explicit in Art.194 (3) UNCLOS.

Environmental Principle adopted by UNCLOS:

From the obligation imposed upon States (including non-parties) by UNCLOS, it is evidential of the Preventive principle of Environmental Law approach. Indeed, the mandate on States to take “all measures … necessary to prevent, reduce and control pollution of the marine environment …”[5] could only presuppose the prior determination of the sources or causes of such pollution. This prior determination of cause and effect, in turn, could only be based on prior knowledge –whether scientifically or historically obtained. This process is the core of the Preventive Principle of Environmental Law. According to Sunkin, et al[6], “the preventive principle therefore seeks to minimise environmental damage by requiring that action be taken at an early stage of the process, where possible before such damage has actually occurred.” However, some commentators have speculated that there are grounds for holding that other Environmental Law principles are implicit in UNCLOS. For example, some have tinkered with the idea that Art. 119 of UNCLOS, supports a case for both the Precautionary principle and the Sustainable development principle. Nonetheless, as ultimately conceded by S. Marr[7], such a ground would be far fetched. Moreover, as is generally accepted in relation to the Precautionary principle, the principle had not been conceptualized at the time of UNCLOS. Broadly speaking, the Preventive principle requires that measures be taken to prevent or reduce activities which have been known or shown to, or could, cause damage or destruction to the environment.

In adopting the Preventive principle to resolve the Environmental problem of pollution —which includes dumping— addressed by UNCLOS, the primary responsibility is upon States. While UNCLOS recognizes the economic interests and activities of States, States are required to provide for the protection and preservation of the marine environment, as well. They are encouraged to cooperate and to harmonize policies adopted for that purpose (the protection and preservation of the marine environment). This can be seen from Art. 194, paragraph 1, where they are also required to use the “best practicable means at their disposal”. Apart from protecting areas under their national jurisdiction, States are under the obligation not to allow areas beyond their national jurisdiction to be damaged by pollution resulting from activities under their jurisdiction or control (paragraph 2). This is a reaffirmation of Principle 21, Declaration of the United Nations Conference on the Human Environment, Stockholm (1972), which is now a generally accepted rule of customary International law.

As noted earlier, UNCLOS is a very comprehensive regime for the protection and preservation of the marine environment. By Art. 194, paragraph 3, the measures required to be taken by States should deal with “all sources of pollution of the marine environment”. This said paragraph then went on to list some of these pollutants to include, inter alia:

(a) (t)he release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping;

(b) pollution from vessels, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional discharges, and regulating the design, construction, equipment, operation and manning of vessels;

(c) pollution from installations and devices used in exploration or exploitation of the natural resources of the seabed and subsoil, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices;

(d) pollution from other installations and devices operating in the marine environment, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices.

By paragraph 5 of the same Article, “(T)he measures taken in accordance with this Part shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.”

As could be seen UNCLOS is a very comprehensive framework, covering all aspects of the marine environment. The sources of marine pollution that has been highlighted above were further expatiated upon and general obligation placed upon States for the protection and preservation of the marine environment from these identified sources through practicable means which included “(L)aws, regulations, measures, rules, standards and recommended practices and procedures”[8]. Literally speaking, every aspect of marine environment protection and conservation is covered by UNCLOS. However, the wording of the Convention (UNCLOS) is not specific, as for example, when pollution would be said to have occurred or what measure is to be taken when it does occur. This could have been deliberate, in order to achieve a primary aim of bringing necessary sanity to the marine environment. Therefore, UNCLOS could be viewed as the principal Convention on the marine environment wherein relevant framework is laid for further, more definite, regulations for the protection and preservation of the marine environmental, whether nationally, regionally or globally, would be founded. If this view is accepted, then the seemingly inadequacies of UNCLOS can be resolved, and UNCLOS would be seen as having been successful in terms of resolving the problem of pollution of the marine environment. Then other conventions to which UNCLOS made reference(s) to would be sought, for the substantive regulations regarding the protection and preservation of the marine environment.

It is, humbly, submitted that the above view to be the purpose of UNCLOS. This assertion is supported by various provisions in the Convention. Directly, Part XII which relates more to the subject of this paper is couched in general terms –as is the entire Convention. As already pointed out, there is no specific obligation placed on any State or international organization. Rather, States are enjoined to “take all measures necessary” (not spelt out) to prevent, reduce and control marine environmental pollution from “all sources”[9]. To this end, States should formulate and elaborate “international rules, standards and recommended practices and procedures consistent with th(is) Convention”[10]. They are also to endeavour to cooperate amongst themselves (directly or through the competent international organizations) and to harmonize “whatever” policies they come up with for the protection and preservation the marine environment. Further more, States are obliged to adopt laws, regulations, rules, standards, procedures and recommended practices for the prevention, reduction and control of the pollution. And the minimum standard to be adopted is the standard of “the international organization or general diplomatic conference”, and they should be “re-examined from time to time as necessary”. All of these are explicit in Sections 1 – 5 of Part XII, particularly. Again, with particular regard to Arts. 197 – 199, it is obvious that the UNCLOS lays out the Preventive principle as the spirit of the Convention for the States, but leaves the details of its practice and application for the States to formulate and implement—consider Art. 235, for an instance. This precept runs through Part XII, which is pertinent to the subject of this paper—marine environment protection—and indeed, the whole UNCLOS.

Finally, it is emphatically reiterated that UNCLOS is a framework convention and thus, may not specifically provide substantive rule for the resolution of the problems it addresses, in-so-far as it creates the enabling circumstances for such special conventions to exist (akin to municipal Constitutions), which it unarguably did. On that note, Art. 237 becomes instructive, particularly paragraph 2. Suffice it to say that there is no definite obligation as to the specifics or details of action or legislation to be made or taken by States, as this is not necessary for convention which is generally a framework-convention; therefore reference is made where necessary to other legal instruments for details or specifics. In this light, it is therefore not necessary for the judicial interpretation of “shall” to be looked into here. At this point, it may be apt to note that the expression “the competent international organization” commonly used in UNCLOS normally refers to the International Maritime organization (IMO)[11].

International/domestic supervisory/monitoring functions under UNCLOS:

Monitoring and supervisory functions in the marine environment are also provided for under UNCLOS. This responsibility is placed upon States, which may be exercised through international organizations. In all cases, as has been shown above, laws, regulations, measures, rules, standards, recommended practices and procedures formulated, should be no less effective than global rules and standards. Not only is UNCLOS comprehensive and broad, it is also meticulous in outlining the major sources of pollution, the various maritime zones and detailing the jurisdiction over these. The coastal State, for instance, has sovereign jurisdiction over activities within its territorial sea. This means it can make laws and regulations for the prevention, reduction and control of pollution of its territorial sea; this includes monitoring and supervisory regulations, naturally. Therefore, the coastal State has monitoring and supervisory roles over land-based sources of pollution of the marine environment[12]. It has similar responsibility under Art. 208 and Art. 214, in relation to pollution from sea-bed sources. The coastal State “has the right to permit, regulate and control” dumping within its territorial sea, exclusive economic zone and continental shelf[13]. In this respect, recourse could be had to the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention) and its 1996 Protocol, for standards and obligations. For vessel-source pollution, the coastal State has a similar function[14]. Likewise for pollution from or through the atmosphere, applicable to the airspace under its sovereignty[15]; pollution in areas beyond national jurisdiction;[16] and in ice-covered areas[17]. The coastal State equally has monitoring powers vested on it by Arts. 56 and 73.

For flag States— States whose flag a vessel flies or which has granted registration to a vessel or aircraft— have the duty of setting conditions for the grant of its nationality to a vessel. A flag State shall adopt laws and regulations that would be binding on the vessel[18]. In discharging this responsibility, the flag State would also be exercising monitoring and supervisory functions. Especially as it has the power to review the documents of the vessel regularly, to ensure compliance. Further more, the flag State can exercise monitoring and/or supervisory functions through its duties with regard to pollution in areas beyond national jurisdiction[19], pollution from vessels flying its flag[20], and pollution from or through the atmosphere[21], and pollution from dumping[22], for example.

In the same vein, the port State exercises monitoring and supervisory functions for the protection and preservation of the marine environment with regard to vessel source pollution,[23] and pollution by dumping.[24]

Generally, the International Seabed Authority (the Authority)[25] has the role of monitoring and supervising the activities within the Area[26]. The Authority is vested with broad powers necessary for monitoring and supervision in Arts. 145, 153, 154, 156, 205 and most provisions in Section 4 of Part XI.

Specifically, Sections 2, 3 and 4 of Part XII obligates States, on a national or international level, to formulate international rules (ensuring uniformity) to monitor the risks or effects of pollution in the marine environment[27].

However, the International Maritime Organization[28] has the general function of acting on behalf of States to monitor and supervise the activities in the marine environment to ensure compliance with UNCLOS. Doubtless, whatever monitoring or supervisory functions IMO has to exercise under UNCLOS, would involve both MARPOL and the London Convention, being relevant Conventions under IMO.

International dispute settlement and/or enforcement mechanism for implementing UNCLOS:

Provisions for the settlement of disputes arising out of an international treaty are often contained in a separate optional protocol. Parties to the treaty could choose to be bound by those provisions or not by accepting or not accepting the Protocol. UNCLOS, in its characteristic comprehensive nature, is unique in that the mechanism for the settlement of disputes is incorporated into the document, making it obligatory for parties to it to go through the settlement procedure in case of a dispute with another party. During the drafting of the Convention, some countries were opposed in principle to binding settlement to be decided by third party judges or arbitrators, insisting that issues could best be resolved by direct negotiations between States without requiring them to bring in outsiders. Others, pointing to a history of failed negotiations and long-standing disputes often leading to a use of force, argued that the only sure chance for peaceful settlement lay in the willingness of States to bind themselves in advance to accept the decisions of judicial bodies. What emerged from the negotiations was a combination of the two approaches, regarded by many as a landmark in international law. Another commendable feature of the dispute settlement mechanism provided under UNCLOS is it respect for the sanctity of contract[29]. Throughout the dispute settlement mechanism are provisions for the paramountcy of the agreement between the disputing parties, which is usually expressed in this manner: “unless the parties otherwise agree”. Also worthy of commendation is that the whole dispute settlement mechanism is structured to secure the voluntary and fair participation in the dispute resolution process by all party to the dispute. The underlying paradigm of the entire dispute settlement mechanism is the amicable resolution of every dispute by peaceful means.

The dispute settlement mechanism for the effective implementation of UNCLOS is generally provided for in Part XV, comprising Arts. 279 – 299. This part provides links to other provisions for dispute resolution within the Convention, as well. For example, Section 5 of Part XI and some Annexes. Part XV, Settlement of Disputes, begins with Art. 279, a general obligation for disputes to be settled by peaceful means in consonance with the Charter of the United Nations, particularly Art. 2(3) and Art. 33(1) which respectively provides that “(A)ll Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered”, and “(T)he parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.” This can be said to be the only obligation upon parties for the settlement of disputes under UNCLOS where they do not have any choice, the others are optional, though decisions reached as a result of that option are binding upon the parties once a decision has been given by the tribunal or court. Apart from the above provision, the dispute settlement mechanism of UNCLOS will only apply to the parties if they have not agreed to seek other peaceful means of settling dispute of their own choice at any time, or if that means has not been fruitful and they did not preclude other means by their agreement, or if they also set a time frame, at the expiration thereof[30]. This notion continues: Art. 282 on obligations under general, regional or bilateral agreements; Art. 283 on obligation to exchange views; and Art. 284 on State Parties’ recourse to conciliation either under Annex V, section 1, or another conciliation procedure. The provisions under Annex V, section 1 deal with the procedure for constituting the conciliation commission and the process of the commission which is geared towards reaching an amicable settlement of the dispute, and submit its report or recommendation within 12 months of its constitution. Essentially, the work of the conciliation commission is to goad the parties towards reaching amicable settlement by themselves. The report of the commission is not binding. This section of Part XV generally contains provisions for direct talks between the parties in dispute. If these direct talks between the parties fail for any of the reasons stated, the Convention gives them a choice among four procedures - some new, some old. The choice is contained in Art. 287 (1), sub-paragraphs (a) – (d): (a) submission of the dispute to the International Tribunal for the Law of the Sea, (b) adjudication by the International Court of Justice, (c) submission to binding international arbitration procedures in accordance with Annex VII, or (d) submission to special arbitration tribunals constituted under Annex VIII with expertise in specific types of disputes contained therein. All of these procedures involve binding third-party settlement, in which an agent other than the parties directly involved hands down a decision that the parties are committed in advance to respect. The only exception to these provisions is made for sensitive cases involving national sovereignty. In such circumstances, the parties are obliged to submit their dispute to a conciliation commission, already discussed above, where they will not be bound by any decision or finding of the commission. It is expected that the moral pressure resulting would be persuasive and adequate enough to ensure compliance with the findings.

UNCLOS also contains so-called "optional exceptions to applicability of section 2”, in Art. 298 of Part XV wherein a State Party can specify at the time it signs, ratifies or accedes to the UNCLOS, or at any later time, they aspect(s) of the dispute settlement mechanism that it chooses not to by bound by. A State may declare that it chooses not to be bound by one or more of the mandatory procedures if they involve existing maritime boundary disputes, military activities or issues under discussion in the United Nations Security Council.[31]

Disputes over seabed activities will be arbitrated by an 11-member Seabed Disputes Chamber (SDC), within the International Tribunal for the Law of the Sea. The Chamber has compulsory jurisdiction over all such conflicts, whether involving States, the International Seabed Authority or companies or individuals having seabed mining contracts. This is expressed in section 5 of Part XI, and other parts of the Convention. More pertinent to the settlement of disputes by the Seabed Disputes Chamber is Arts. 187, 188, 189, 190 and 191 which provides for its jurisdiction, when disputes may be submitted other than Seabed Disputes Chamber, limitation of jurisdiction, participation and appearance by States sponsors, and its advisory jurisdiction. Like the International Tribunal for the Law of the Sea (ITLOS), whose constitution and functions is provided in Annex VI, there are provisions for consensus, as for example, of the procedures to be adopted in resolving disputes. Obviously, the jurisdiction of ITLOS is much wider and embracing (Art. 21 of Annex VI). But, the decisions of both are binding on the parties to the disputes.[32]

There are provisions for provisional measures where the circumstances of the disputes necessitate such, for example Art. 25 of Annex VI and Art. 290. Art. 294 provide measures to guard against the abuse of legal process. For more effective implementation of UNCLOS, parties are required to first exhaust local remedies, where they are provided for, before recourse should be had to the provisions under UNCLOS for dispute settlement (Art. 295). It is noteworthy that the dispute settlement mechanism contains procedures to be followed, often with a time frame set for each, for effective implementation. Also, a list of conciliators drawn from different countries exists with the United Nations, as required by Annex V, section 1, art. 2. In accordance with Annex VIII, art. 2, a list of experts in the field of protection and preservation of the marine environment is already maintained by the United Nations Environment Programme (UNEP). The list also contains experts in the fields of fisheries, marine scientific research and navigation. It should be said here that the dispute settlement mechanism under UNCLOS is thorough and exhaustive.

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