2.4 Flag State obligations with respect to environmental protection and due diligence
While flag State jurisdiction provides the jurisdictional basis for regulating vessel-based activities on the high seas, the content of the obligations attaching to the flag State jurisdiction is further shaped by Part XII of UNCLOS. As seen earlier, Article 192 establishes a general obligation for all States to protect and preserve the marine environment(1)Article 192 UNCLOS, while Article 194 requires States to take all necessary measures to prevent, reduce, and control pollution from any source(2)Article 194 UNCLOS. Of relevance is Article 194(2), which requires that States must ensure that activities under their jurisdiction or control are conducted in a manner that does not cause pollution damage to other States or to ABNJ(3)Article 194(2) UNCLOS.
Importantly for the purposes of this thesis, the obligations under Part XII have been interpreted as obligations of due diligence rather than as obligations of results(4)Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion) ITLOS Rep 2011, para 110; Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (Advisory Opinion) ITLOS Rep 2015, paras 125–129; Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14, paragraphs 187–197.. Due diligence can be described as a standard of conduct, where compliance is not dependent on the outcome but on the efforts and the conduct of the State Party(5)Ibid n104. As seen earlier, under Article 206 of UNCLOS, there is an obligation on State Parties to assess the potential effects of planned activities under their jurisdiction or control when they have “reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment”(6)Article 206 UNCLOS. While Article 206 defines (although arguably with open-textured language) when State Parties shall assess the potential effects of activities within their jurisdiction or control, it does not define the content or form of the assessment. The application of Article 206 does not guarantee that no harm will come to the environment from activities that have been subject to assessment by the relevant State Party, but it does ensure that State Parties make informed decisions when exercising their jurisdiction. Advisory opinions by ITLOS support such an understanding of the due diligence obligations under UNCLOS(7)Request for an Advisory Opinion Submitted by the Sub Regional Fisheries Commission (Advisory Opinion) ITLOS Rep 2015 . In the SRFC Advisory Opinion, ITLOS emphasized that flag States must exercise due diligence to prevent harm to the environment, and it also placed emphasis on the need for a precautionary approach. In the SRFC Advisory Opinion it was stated that “The flag State is under the “due diligence obligation” to take all necessary measures to ensure compliance and to prevent IUU fishing by fishing vessels flying its flag”(8)Ibid n107, paragraph 129, which it could be argued would also apply to other activities by ships flying under the flag of a flag State. The due diligence obligation from UNCLOS requires flag States to regulate and enforce international standards to prevent activities that could harm the marine environment. For example, the obligation to prevent pollution from ships, ensuring the safe operation of ships(9)Article 194(3)(b) UNCLOS, and conducting EIAs for activities that potentially could cause significant adverse impacts on the marine environment(10)Article 206 UNCLOS.
Accordingly, within the UNCLOS framework, EIAs can be understood as one of the procedural mechanisms through which the due diligence obligations of flag States are operationalised in practice. While UNCLOS does not establish a self-contained EIA regime for shipping, international jurisprudence has been clear that there is an expectation that State Parties will assess environmental risks associated with activities under their jurisdiction or control(11)South China Sea Arbitration (Philippines v China) (Award) PCA Case No 2013-19, 12 July 2016, paragraphs 947–948. This provides the foundation for viewing later developments, particularly the EIA provisions of the BBNJ Agreement, as supplying further procedural content of the pre-existing obligations under UNCLOS.