Protecting and preserving the marine environment in disputed areas: seismic noise and provisional measures of protection

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This paper is the first to address the environmental legal issues that could arise from the conduct of unilateral seismic operations in disputed maritime areas. And that should be surprising: such operations are ongoing in many places across the globe as states seek to enhance their domestic natural resource potentials and establish their sovereign control in the areas under dispute. But, the lack of previous legal scholarship on the topic is even more surprising when one realises the serious and multifaceted risks posed by seismic surveys on the marine environment. As this paper discusses, there are known environmental risks that include permanent injuries to marine organisms or even immediate death. Other effects may include temporary injuries that may or may not directly result in death but that may make marine organisms less fit, resulting in lower chances of survival. These risks are in addition to less well understood but nonetheless plausible risks to marine ecosystems, such as the potential for noise-derived behavioural disturbance. This could have an impact on animals’ feeding, movement and reproduction, and might also have short- or long-term effects on catch success rates. The paper examines the possible application of provisional measures of protection under Article 290 of the United Nations Convention on the Law of the Sea (UNCLOS). This provision enables a court or tribunal exercising jurisdiction under UNCLOS to prescribe provisional measures not only to preserve the rights of the disputants, but also, or even solely, to prevent serious harm to the marine environment. The analysis explores the foreseeable risks posed by unilateral seismic surveys and examines if Article 290 of UNCLOS provides adequate protection to the complainant state against such operations, pending the final settlement of the dispute. The paper reviews the existing environmental jurisprudence of the International Tribunal for the Law of the Sea (ITLOS) on provisional measures and comments on the potential to respond meaningfully to unilateral seismic exploration activities in disputed maritime areas through recourse to provisional measures of protection.