해양환경보호와 상당한 주의(due diligence)

Abstract

The Part XII of the UNCLOS, entitled “Protection and Preservation of the Marine Environment,” is by nature a framework and does not contain detailed norms and contents. Therefore, the role of due diligence in understanding and implementing marine environmental protection is critical. Due diligence can fill the gap in the content of specific obligations, serve as a criteria for fulfilling the obligation to protect the marine environment, and act as a factor to strengthen such obligation.
 With regard to the obligation to protect the marine environment, considering it merely element for determining breach of the obligations in the context of “State responsibility” has a limitation. Because the nature of the marine environment protection obligation requires the prevention of the pollution or harm to the marine environment. Given the nature of the primary obligation, due diligence can perform the function to bridge the gap between primary and secondary obligations. As due diligence is a flexible and variable concept, states can strengthen obligations to protect the marine environment and prevent marine pollution by reflecting the higher standards enabled by technological development.
 However, there is a concern that the flexible nature of this concept allows countries to have broader discretion in fulfilling obligations. This is because there is room for countries to interpret the degree of their obligations differently due to the subjective characteristics of expressions such as “all appropriate,” “as much as possible,” “necessary,” and “effective.” Recognizing these limitations, it would be desirable to enforce compliance with the proceduralization of the due diligence obligations. This includes developing each procedural obligation for the protection of marine environment and defining the forms and criteria of the due diligence obligation within the context of each procedural obligation. By doing so, countries can ensure that due diligence is implemented consistently and effectively in protecting the marine environment.