To What Extent Has International Law Contributed to the Protection of the Marine Environment From Pollution

8/3/2019 To What Extent Has International Law Contributed to the Protection of the Marine Environment From Pollution

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To what extent has International law contributed to the protection of

the marine environment from pollution?


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Contents

Description page number

List of Figures 1

Table of Cases 1

Table of Statutes 1

Introduction 3

Marine Environment Polution 3

International Environmental Law 5

The London Dumping Convention 8

The MARPOL 9

United Nations Convention on the Law of the Sea 1982 12

Pollution form seabed activities 13

Pollution originated from land based sources 14

Atmospheric Pollution 17

Conclusion 17

Reference List 19

List of Figures


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Figure 1: Sources and Effects of Marine Pollution

Table of Cases

Corfu Channel case (1949) ICJ Rep. 4

Lake Lanoux Arbitration Case (1957) 24 I.L.R. 101

North Sea Continental Shelf Case (1969) ICJ 3

Trail Smelter Arbitration Case III RIAA 1905, p1965

Table of Statutes

1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes

and Other Matter, 1972

Decision of the Governing Council of UNEP iO/l4/VI of 31 May 1982 on the CONCLUSIONS OF

THE STUDY OF LEGAL ASPECTS CONCERNING THE ENVIRONMENT RELATED TO OFFSHORE

MINING AND DRILLING WITHIN THE LIMITS OF NATIONAL JURISDICTION.

IMO Resolution 249(VII) of 15 October 1971 on the Amendment procedures in conventions for

which IMCO is Depositary:

Protocol for the Protection of the Mediterranean Sea Against Pollution from Land-Based

Sources, 1980 to the Convention for the Protection of the Marine Environment and the Coastal

Region of the Mediterranean, 1976

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and

Their Disposal, 1989

The Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft,

1972

The Convention for the Prevention of Marine Pollution from Land-Based Sources, 1974

The Convention for the Prevention of Marine Pollution from Land-Based Sources, 1974

The Convention for the Protection of the Marine Environment and the Coastal Region of the

Mediterranean, 1976

The Convention for the Protection of the Marine Environment of the North-East Atlantic, 1992



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The Convention on the High Seas 1958:

The Convention on the Protection of the Black Sea Against Pollution, 1992

The Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1974;



The International Convention for the Prevention of Pollution From Ships, 1973 as modified by

the Protocol of 1978

The International Convention for the Prevention of Pollution From Ships, 1973 as modified by

the Protocol of 1978

The International Convention for the Safety of Life at Sea , 1974

The International Convention on Load Lines, 1966

The International Convention on Oil Pollution Preparedness, Response and Co-operation, 1990

The International Regulations for Preventing Collisions at Sea, 1972

The Prevention of Marine Pollution by Dumping of Wastes and Other Matters,1972

The United Nation Charter, 1945

The United Nations Conference on Environment and Development, held in Rio de Janeiro on1992

The United Nations Convention on the Law of the Sea 1982

UN General Assembly Official Records 44th session, supplement No. 25 of 1989 (A/44/25) 15

Decision 15/2, Annex II


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Introduction

Environmental law is broad and complex area of international law which constitutes the

application of universal doctrines and principle of international law to environment

protection issues. The purpose of international environmental law is to develop methods and

procedures for negotiating standarts, resolving controversies, governing implementation in

compliance with international law instruments and rules of customary law. It also deals with

management of environmental issues, establishing environmental standards, determines

objectives for environmental damage prevention and alleviation. 1

In order to determine to what extent international law contributed to the protection of

marine environment from pollution, taking into account the nature and purpose of

international law, it is necessary to assess effectiveness of its instruments in dealing with

marine environment protection issues. However, there are different applications of

effectiveness and in order to establish it, it is necessary to answer if the legal regime has

solved the environmental issues it had been established for or if legal instruments have

achieved its constitutive objectives or if it has changed polluting behaviour patterns.2

Marine Environment Polution

In order to establish the contribution of international law to protection of marine

environment it is necessary to establish definition of marine pollution, major pollutants and

sources of marine pollution. The definition of marine environment pollution was given in Art.1

of the UNLOS III3

. According to this internationally accepted definition, international law doesnot aim to prevent adding into marine environment of all substances but only these which

would likely harm marine living resources or their legitimate ways of utilization. Thus, it is

concentrated not at marine environment as value itself but rather to its value to humanity in

order to obviate foreseeable deleterious consequences to human lives.4

1 Birnie,P. and Boyle,A.(2002) International law and the environment. 2nd ed. Oxford : OxfordUniversity Press, p 72 Ibid3 Art 1 United Nations Convention on the Law of the Sea 1982:

pollution of the marine environment means the introduction by man, directly orindirectly, 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 fishingand other legitimate uses of the sea, impairment of quality for use of sea water andreduction of amenities

4 Churchill,R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press


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According to World Watch Institute the major marine environment pollutants are5:

Figure 1: Sources and Effects of Marine Pollution

However, the primary strategy of International law regarding protection of the marine

environment is based on dealing with the sources of the pollution rather than with the nature

of the specific pollutants. According to GESAMP, there are four major sources of marine

environment pollution. 44% originated from land based runoffs and discharges, 33% come from

atmospheric inputs (however the majority of them still originates from land-based sources),

5 Basedow,J et all (2007) Pollution of the Sea Prevention and Compensation Berlin : Springer


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shipping is responsible for 12%, dumping at sea causes 10% and sea-bed activities only 1%. 6

Land based pollution sources include sewage, industrial wastes, agricultural runoffs

containing fertilizers and pesticides discharged to sea directly or through watercourses, warm

water from power plants. In their turn atmospheric inputs include vehicles exhaust, fumes

from chimneys (domestic and industrial), vaporized agricultural chemicals and etc. However,

it is important to mention that while atmospheric inputs are usually dilute at marine

environment, land sourced pollutants are concentrating in coastal areas. 7

Shipping pollutes marine environment through the vessel operations by discharging sewage,

oily bilge waters, or ballast waters in case of tankers directly to sea. However, major

pollution in shipping originates from cargos like oil, chemicals, liquid gas and others, which

are spilling on the water as a result of marine accidents 8(as for instance major tanker

accidents withAtlantic Empress, Amoco Cadiz, Torrey Canyon, Exxon Valdez9).

Damping in the 1950s and 1960s was a popular method to deal with land-sourced wastes

because of its relative cheapness. As result dredged materials from ports and rivers, sewage

sludge, industrial wastes and even military and radioactive materials handled in that way

10

.

As for sea bed activities, there the marine environment pollution originates from deliberate

pollution as consequence of exploration and exploitation installations, such as domestic

refuse disposal at sea, industrial debris, oily and chemicals wastes used for drilling and

accidental pollutions from blowouts (major accident at Ixtoc oil well at 1979 and the current

nightmare at Deepwater Horizon11), collisions with ships or breaking of pipelines. 12

International Environmental Law

International environmental law is not an independent area of law but represents application

of international law rules and principles to environmental issues, which however prompted

clarification, development and creation of environmental law principles. The body of the

international environmental legislation consists of multilateral treaty law such as ratified and

binding state parties conventions and their protocols; not-binding guidelines and principle

manifests referred as soft law instruments, issued by international bodies, for instance

UNEP13, and serving as starting point for evolution of the treaties14; also rules and principles

of treaties and soft law instruments transferred into customary international law as

6 GESAMP, 1990. The state of the Marine Environment, UNEP Regional Seas Reports and Studies No 115UNEP: Nairobi7 Churchill,R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press8 Ibid.9Egawhary,E., 2010. How big is the Deepwater Horizon oil spill?. [online].Available:http://news.bbc.co.uk/1/hi/magazine/8664684.stm [accessed on 25 July 2010]10 Ibid.11Egawhary,E., 2010. How big is the Deepwater Horizon oil spill?. [online].Available:http://news.bbc.co.uk/1/hi/magazine/8664684.stm [accessed on 25 July 2010]

12 Ibid.13 UN Environmental Programme14 Birnie,P. and Boyle,A.(2002) International law and the environment. 2nd ed. Oxford : OxfordUniversity Press


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international custom, as evidenced by a practice generally accepted as law15 or according to

definition given by ICJ in the North Sea Continental Shelf Case:

Customary international law is evidenced by the practice of states by referenceto published material, statements of the national government and states ownlaws and judicial decisions and its acceptance as law16

Customary international law recognizes several general principles, which establish the base

framework of international law relating to marine pollution. According to the principle of

good neighbourliness expressed in UN Charter17and based on the Roman Law maxim sic utere

tuo ut alienum non laedas18 in the Trail Smelter Arbitration Case it was stated:

under the principles of international lawno state has the right to use or permitthe use of its territory in such a manner as to cause injury by fumes in or to theterritory of another19

Besides the aplication to air pollution, the case has direct relevance to issues of the

extraterritorial marine polution from land base sources20:

(a) it dealt with extraterritorial damage arising from pollution of shared environmentalresources .(b)pollution was caused by discharge of harmful chemical from a fixedinstallation on land whose operation was not unlawful per se; and (c) the basis ofresponsibility of Canada was the exclusive territorial jurisdiction it exercised overactivities of the industry21

According to Hassan22: the aforesaid principle stated in the Trail Smelter Arbitration Case

reflect also doctrine of equitable utilization later confirmed in the International Tribunal

rulling in the Lake Lanoux Arbitration Case, between Spain and France regarding diversion of

lake waters as result of hydroelectric power station project. There it was confirmed, that the

reasonable use of internal waters does not change its quality flowing to another state, byexplaining that

France is entitled to exercise her rights; she cannot ignore the Spanish interests.Spain is entitled to demand that her Rights to be respected and that her interestbe taken into consideration 23

According to the principle of reasonables of the customary international law24 Art 2 ofHigh

Seas Convention25 expresses , that states can exercise freedom of high26 seas with

15 Churchill,R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester UniversityPress16 (1969) ICJ 317 Art 74 of United Nation Charter, 1945: Members of the United Nations also agree that their policy inrespect of the territories to which this Chapter applies, no less than in respect of their metropolitanareas, must be based on the general principle of good-neighborliness, due account being taken of theinterests and well-being of the rest of the world, in social, economic, and commercial matters.18 use [what is] yours so as not to harm [what is] of others19 III RIAA 1905, p196520 Hassan,D. (2006) Protection the Marine Environment from Land-Based Sources of Pollution. TowardsEffective International Cooperation Aldershot: Ashgate Publishing Limited21 Kuwabar,S. (1984) The Legal Regime of the Protection of the Mediterranean against Pollution from

Land-Based Sources Dublin : Tycooly International Publishing Limited22 Hassan,D. (2006) Protection the Marine Environment from Land-Based Sources of Pollution. TowardsEffective International Cooperation Aldershot: Ashgate Publishing Limited23 (1957) 24 I.L.R. 101


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reasonable regard to the interests of other States in their exercise of the freedom of the high

seas27.

In the Corfu Channel case ICJ affirmed that principle of sovereignty of a state assimilates the

obligation not to allow knowingly its territory to be used for acts contrary to the rights of

other States28. Consequently, it could be concluded that it is responsibilty of a state to

preclude actual or possible environmental damage, when it knows or ought to know, thatharming activity is performed in the states jurisdiction and within states power to prevent

it.29

Thus as per Churchill and Lowe30, and Smith31 the principle established in the Trail Smelter

Arbitration Case by analogy could be extended and combined with the principle declared in

Art 2 of High Seas Convention and Corfu Channel case in order to create general rule of

customary international law, that States must not permit to their nationals to discharge into

the sea matter that could cause harm to the nationals of other States32. However, such rule

would be too ambiguous and due to the nature of customary international law, incapable of

creating detailed emission standards and effective liability regime.

33

Besides, such rule wouldaddress only transboundary pollution issues and would not be aplicable for domestic aspects

of marine environment pollution.34

Therefore, most of the international legislation concerning of the marine environment

protection from pollution is formed by positive treaty law, which could be divided into four

categories35: general multilateral conventions (concerning pollution from ships: The 1954 Oil

Pollution Covention, MARPOL36, SOLAS37, The Basel Convention38; concerning the dumping

the London Dumping Convention39), regional conventions (the Helsinki Convention40, the

24

Churchill,R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester UniversityPress, p 332; Hassan,D. (2006) Protection the Marine Environment from Land-Based Sources ofPollution. Towards Effective International Cooperation Aldershot: Ashgate Publishing Limited, p 7225 Art. 2 of the Convention on the High Seas 1958.26 According to Art.2 of the Convention on the High Seas 1958:

(1) Freedom of navigation;(2) Freedom of fishing;(3) Freedom to lay submarine cables and pipelines;(4) Freedom to fly over the high seas.

27 Ibid.28 (1949) ICJ Rep. 429 Hassan,D. (2006) Protection the Marine Environment from Land-Based Sources of Pollution. TowardsEffective International Cooperation Aldershot: Ashgate Publishing Limited30

Churchill,R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester UniversityPress , p 33231 Smith,BD. (1988) State responsibility and the marine environment : the rules of decision Oxford:Clarendon Press32 Churchill,R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester UniversityPress , p 33233 Ibid.34 Hassan,D. (2006) Protection the Marine Environment from Land-Based Sources of Pollution. TowardsEffective International Cooperation Aldershot: Ashgate Publishing Limited, p 7635 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester UniversityPress , p 33236 The International Convention for the Prevention of Pollution From Ships, 1973 as modified by theProtocol of 1978

37 International Convention for the Safety of Life at Sea , 197438 The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and TheirDisposal, 198939 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters,1972


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Barcelona Convention41, the Bucharest Convention42, the Paris Convention43 and other),

bilateral treaties and the UNLOCS III44.

The London Dumping Convention

The London Dumping Convention was adopted under the auspices of IMO at 1972 and entered

to force at 1975 as response to growing practise of deliberate disposal at sea of waste

originating from land-based activities in the 1950s and 1960s45. It is often regarded as one of

the more effective international regulatory instruments of the1970s, as for instance dumping

of industrial waste was reduced from 17 million tons at 1979 to 6 million tons at 1987;

dumping of sewage sludge declined form 17 million tons at 1980 to 14 in 198546 as result of

increasing states efforts to use more environmental friendly technologies, recycle wastes or

find different ways of disposal. 47

Initially the London Convention was dividing the waste into 3 groups: prohibited for dumping

substances48 black-listed in Annex 1; allowed for dumping under special permit noxious

substances49 - grey-listed in Annex 2 and substances other than the listed in Annexes 1 or 2

allowed for dumping under general permit. There are also special amendments adapted in

1978 regarding incineration of waste at sea. 50

However, in the beginning of the 1990s the traditional approach of controlling dumping under

the influence of international environmental law evolution and principles, later expressed in

theAgenda 21 program of the 1992 Rio Conference 51 was changed towards a precautionary

approach and holistic waste management aproach. In the 3 sets of amendments dumping of

all radioctive materials, industrial waste and incineration of noxious liquids, industrial waste,

sewage sludge was forbidden. According to the 1996 protocols52 the only substances

permissable to dump are dredged materials; sewage sludge; fish waste; vessels and oil and

40 The Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1974;The Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1992

41 The Convention for the Protection of the Marine Environment and the Coastal Region of theMediterranean, 197642 The Convention on the Protection of the Black Sea Against Pollution, 199243

The Convention for the Prevention of Marine Pollution from Land-Based Sources, 197444 United Nations Convention on the Law of the Sea 198245 Churchill,R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester UniversityPress , p 33246 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester UniversityPress , p 37047 Birnie,P. and Boyle,A.(2002) International law and the environment. 2nd ed. Oxford : OxfordUniversity Press, p 42748 For instance organohalogen compounds, mercury, cadmium, oil, plastics, and high-level radioactivewaste49 For instance arsenic, lead, copper, zinc, organosilicon compounds, cyanides, fluorides, pesticides,scrap metal, radioactive materials50 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University

Press , p 36451 The United Nations Conference on Environment and Development, held in Rio de Janeiro on 199252 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes andOther Matter, 1972


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gas platforms; inert, inorganic geological material; organic material of natural origin;

incinerations and waste-export to non-parties are banned. 53

According to UNLOS III provision related to dumping, besides obligation to adopt laws and

regulations to prevent, reduce and control pollutionby dumping54, which shall be no less

effective than the global rules and standards55and ensure that dumping is not carried out

without the permission56, states that dumping within the territorial sea and the exclusiveeconomic zone or onto the continental shelf shall not be carried out without the express prior

approval of the coastal state, which has the right to permit, regulate and control such

dumping after due consideration57; what goes beyond provisions of the London convention

regarding prior consultation. 58.

As a result of those amendments, the London Convention has became a non-dumping

convention, what however has certain weakneses as lack of effective international

supervision, reliance to enforcement by national governments, which compliance with their

reporting duties is not fully satisfactory. 59

The MARPOL

The MARPOL Convention, designed to address intentional vessel-source pollution issues, was

adopted under the umbrella of IMO in 1973. The Convention works on the basis of certifying

vessels compliance with safety and pollution standards. The MARPOL consists of 6 annexes,

setting detailed pollution standards for operational oil pollution60, noxious liquid substances

carried in Bulk61, harmful substances carried in packaged form62, sewage63, garbage64 and air

pollution65.

According to Article 566, the MARPOL well before principle of port state jurisdiction,

established under the UNCLOS III, allotted aport state with power to verify compliance with

international rules and regulations and conduct enforcement actions (detain and prosecute) if

53 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester UniversityPress , p 365-36654 Art 210 of United Nations Convention on the Law of the Sea 198255 Ibid.56

Ibid.57Ibid.58 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester UniversityPress , p 36959 Birnie,P. and Boyle,A.(2002) International law and the environment. 2nd ed. Oxford : OxfordUniversity Press, p 42760 Annex I, which entered into force on 2 October 198361 Annex II, which entered into force 6 April 198762 Annex III, which entered into force on 1 July 199263 Annex IV, which entered into force on 27 September 200364 Annex V, which entered into force on 31 December 198865 Annex VI, which entered into force on 19 May 200566 Art. 5 of the International Convention for the Prevention of Pollution From Ships, 1973 as modified

by the Protocol of 1978:a ship required to hold a certificate in accordance with provisions of Regulations is subject, while inthe port or off-shore terminal under the jurisdictions of a Party to inspection by officers dulyauthorized by that Party


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violation is established in respect of vessels in its ports, even if some vessel flag state is not

signatory of the MARPOL according to Article 5 it is necessary to ensure that no more

favourable treatment is given to such ships67 . Such principle is affecting the rights of third

party states not bound by the convention and was opposed by many states, yet it brings more

effectiveness to enforcement of international pollution standards.68.

In order to accept urgently required amendments to international conventions dealing withprevention of marine pollution in timely manner the procedure of the tacit acceptance 69

was proposed and implemented by IMO. For instance, amendments to Annex 1 of MARPOL

regarding the phasing-out of single-hull oil tankers was adopted in April 2001 and came into

force in less than 18 months in September 2002 through the tacit acceptance procedure.

According to Peet70 the main criteria how the MARPOL contribution to marine environment

protection could be assessed is the reduction of the harmful substances quantity which were

discharged into the marine environment from accidents or ship operations and evaluation of

the MARPOL implementation effectiveness by national governments.

According to Bernie and Boyle71 the MARPOL lacks instruments to verify states compliance and

mechanisms to deal with such disregarding states in order to achieve its purposes. The Peets

study evidenced issues and non-compliance from the states regarding their reporting (Art.

11(e),11(f)), monitoring and detection (Art. 6(1)) and enforcement duties (Art.

4(1),4(2),4(3),4(4)) under the MARPOL convention72.

Birnie and Boyle73, Churchill and Lowe74, Peet75 agree that the implementation of Annex 1

prescribing load-on-top system for tankers over 150 tons to limit oily water discharge en

route; prohibiting any oily water discharges at special zones like Baltic, Black or

Mediterranean seas; imposing usage of segregated ballast tanks and crude oil washing method

for cargo tanks made significant contribution towards marine environment protection fromdeliberate pollution from ships. According to GESAMP76 data the total quantity of oil brought

into marine environment by maritime transport declined for from 2.13 million tons in 1973 to

67 Ibid.68 Basedow,J et all (2007) Pollution of the Sea Prevention and Compensation Berlin : Springer, p 5769 As it was explained IMO Resolution 249(VII) of 15 October 1971 on the Amendment procedures inconventions for which IMCO is Depositary:

.. the body which adopts the amendment at the same time fixes a time period withinwhich contracting parties will have the opportunity to notify either their acceptance ortheir rejection of the amendment, or to remain silent on the subject. In case of silence,

the amendment is considered to have been accepted by the party70 Peet,G. 1994. International Co-operation to Prevent Oil Spills at Sea: Not Quite the Success ItShould Be [online]. Available:www.fni.no/YBICED/94_03_peet.pdf [accessed on July 30, 2010]71 Birnie,P. and Boyle,A.(2002) International law and the environment. 2nd ed. Oxford : OxfordUniversity Press, p 36772 Peet,G. 1994. International Co-operation to Prevent Oil Spills at Sea: Not Quite the Success ItShould Be [online]. Available:www.fni.no/YBICED/94_03_peet.pdf [accessed on July 30, 2010]73 Birnie,P. and Boyle,A.(2002) International law and the environment. 2nd ed. Oxford : OxfordUniversity Press, p 34874 Churchill,R. and Lowe,A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press, p 33275 Peet,G. 1994. International Co-operation to Prevent Oil Spills at Sea: Not Quite the Success ItShould Be [online]. Available:www.fni.no/YBICED/94_03_peet.pdf [accessed on July 30, 2010]

76 GESAMP, 1993. Impact of oil and related chemicals and wastes on the marine environment. GESAMPReport 50 s.l.:s.n. Not available, but the figures referred to can also be found inChurchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press, p 341


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1.47 million tons in 1981 and furthermore till 0.57 million tons. However, as it was explained

by Birnie and Boyle77 most of that oil appeared to be operational discharges (ballasting, tank

cleaning, oil waste) that indicates the obligation disregard to provide adequate reception

facilities in the ports of many states under MARPOL Annex 1 Regulation 12. Churchill and

Lowe78 also underline that the lack of suitable reception facilities is a common issue not only

for oil waste but for harmful substances under other MARPOL annexes as well.

However, even if the MARPOL Convention is generally considered as success79, the carefull

researchers are not that straightforward, perhaps as it was cocluded by Birnie and Boyle:

the data do not point to any clear conclusion, except that the operational pollution does

appear to have declined 80.

In order to reduce accidental pollution as result of hull failure, collisions or standings the

MARPOL constitutes provisions establishing limitations for tankers tank sizes and requirement

for double hulls tankers. According to the OPRC Convention81 every vessel should have

onboard approved oil pollution emergency plan, comprehensively covering all matters being

taken in order to deminish oil pollution risk.

82

There are also other international lawinstruments trying to decrease the risk of accident occuring by improving the seaworthiness of

vessels, qualification of the crew or regulating vessel traffic as for instance SOLAS83, Load

lines Convention84, COLREGs Convention85.

77 Birnie,P. and Boyle,A.(2002) International law and the environment. 2nd ed. Oxford : OxfordUniversity Press78 Churchill,R. and Lowe,A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press, p 33279 Sheehy,B., 2004. International Marine Environment Law: a Case Study in the Wider Caribbean Region.[2004] 16 Geo. Int'l Envtl. L. Rev. 44180 Birnie,P. and Boyle,A.(2002) International law and the environment. 2nd ed. Oxford : OxfordUniversity Press, p 36981 International Convention on Oil Pollution Preparedness, Response and Co-operation, 199082 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University

Press, p 37683 International Convention for the Safety of Life at Sea, 197484 International Convention on Load Lines, 196685 Convention on the International Regulations for Preventing Collisions at Sea, 1972


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United Nations Convention on the Law of the Sea 1982

The protection of marine environment from polution has not constituted the primary issues

for international relatioship till 1970-s86. However, UNCLOS I87 had general provisions obliging

parties to prevent marine environment pollution by oil from ships or pipelines or resultingfrom the exploitation and exploration of the seabed88and from the dumping of radioactive

waste89. The first comprehensive legal framework for marine environment protection was

presented only in UCLOS III90, designed to establish

legal order for the seas and oceans which will facilitatethe equitable andefficient utilization of their resources, protection and preservation of the marineenvironment91

Notions used in UNCLOS III articles devoted to the protection and preservation of the marine

environment (Art. 192-222) reflect the evolution of the international environmental law

generally and law of the sea particularly. One the most important developments is thatpollution cannot to be regarded any more as implied part of the freedom high seas, rather its

diligent control from all sources is now a matter of comprehensive legal obligation affecting

the marine environment as whole, and not simply interest of other states92.

Another change stated in the UNCLOS III is the alteration of balance of power between flag

states,port state and coastal states. The UNCLOS III placing additional obligation on states to

adopt for vessel flying its flag pollution regulation which at least have the same effect as

that of generally accepted international rules and standards established through the

competent international organization or general diplomatic conference93. According to

Churchill and Lowe 94 such standart would include MARPOL and its widely ratified annexes,

however the legal implication of the wording accepted international rules and standards is

not clear. UNCLOS III is also placing additional strict obligations to flag states to enforce the

compliance of their vessels regarding pollution legislation95.

The pollution regulation legislative competence ofcoastal states was decreased and may not

apply to the design, construction, manning or equipment of foreign ships unless they are

giving effect to generally accepted international rules or standards96. However, the area

where such pollution regulations are aplicable, was extended from territorial seas only, also

86

M'Goningle, RM. and Zacher, MM. (1979) Pollution Politics and International Law Berkeley :University of California Press87 Convention on the Territorial Sea and the Contiguous Zone 1958, Convention on the High Seas 1958,Convention on Fishing and Conservation of the Living Resources of the High Seas 1858, Convention onthe Continental Shelf 195888 Art 24 of the Convention on the High Seas 195889 Art 25 of the Convention on the High Seas 195890 Charney,JI. 1994. The Marine Environment and 1982 United Nation Convention on the Law of the Sea.International Lawyer, 28(4), p 48491 Preamble of United Nations Convention on the Law of the Sea 198292 Birnie,P. and Boyle,A.(2002) International law and the environment. 2nd ed. Oxford : OxfordUniversity Press, p 34893 Art 211(2) of United Nations Convention on the Law of the Sea 1982

94 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester UniversityPress , p 34895 Art 217) of United Nations Convention on the Law of the Sea 198296 Art 21(2) of United Nations Convention on the Law of the Sea 1982


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to EEZ97 where coastal state was granted with certain power to appoint for marine polution

legislation giving effect to generally accepted international rules or standards98.99

The UNCLOS III provisions provide port states more power to enforce marine pollution

standards. According to UNCLOS III, a vessel could be arrested and prosecuted by port state

for violation of that states pollution laws and regulationsor applicable international rules

and standards100 not only in that port state territorial waters or EEZ, but also outside themfor violation of applicable international rules and standards101. Port states and coastal

states aregranted with the possiblity to take enforcement actions if flag state was incapable

of enforcing effectively the international pollution standards. 102

Finally, in the UNCLOS III the emphasis has been moved from responsibility for environmental

damage primary on international legal regimes structure, powers and responsibilities of flag,

coastal and port states, international organizations and commissions103.

Pollution form seabed activities

However there is a not general treaty regulating polution from offshore installations104. The

general obligation to prevent such pollution exists in the UNCLOS I 105 and in the UNCLOS III,

which stipulates to adopt laws and regulations to prevent, reduce and control pollution 106

arising from seabed activities and enforce their laws and regulations adopted107. Article

208(3) of UNCLOS III states that such lawsshall be no less effective than international rules,

standards and recommended practices and procedures108 and Article 208(5) in its turn calls

parties to establish global and regional rules, standards and recommended practices and

procedures to prevent, reduce and control pollution of the marine environment109

The MARPOL convection is aplicable to pollution other than the release of harmful

substances directly arising from the exploration, exploitation110, while the London

Convention governs debris dumping from exploration and exploitation of offshore facilities. 111

97 Exclusive Economic Zone98 Art 211(5) of United Nations Convention on the Law of the Sea 198299 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester UniversityPress100

Art 220(1) of United Nations Convention on the Law of the Sea 1982101 Art 218(1) of United Nations Convention on the Law of the Sea 1982102 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester UniversityPress103 Birnie,P. and Boyle,A.(2002) International law and the environment. 2nd ed. Oxford : OxfordUniversity Press, p 348104 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester UniversityPress , p 371105 Art. 24 of the Convention on the High Seas 1958106 Art. 208 of United Nations Convention on the Law of the Sea 1982107 Art. 214 of United Nations Convention on the Law of the Sea 1982108 Art. 208(3) of United Nations Convention on the Law of the Sea 1982109 Art. 208(5) of United Nations Convention on the Law of the Sea 1982

110 Art. 2 of the International Convention for the Prevention of Pollution From Ships, 1973 as modifiedby the Protocol of 1978111 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester UniversityPress, p 372


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However, there is more comprehensive range of measures based on the UNEP guidelines112

governing pollution from seabed activites developed in regional agreements (as for instance in

the OSPAR Convention113, the Helsinki Convention114, the Barcelona Convention115amended in

1995 with protocol sea-bead activities), which should minimise operational pollution. 116

As article 194(3c)117 of the UNCLOS III and UNEP Guidelines point out, in order to minimize the

chance for accidental pollution from installations and devices used in exploration orexploitation of the natural resources states have to ensure the safety of operations at sea,

prescribe and rigorously enforce the design, construction, equipment, operation and

manning of such installations. According to the OPRC Convention118 every offshore

installation operator prior to commence any exporation and exploitation activities, is obliged

to have approved oil pollution emergency plan, comprehensively covering all matters being

taken in order to diminish oil pollution risk. 119

The issue with pollution in the international sea bed area, according to Article 145 of the

UNCLOS III, should be regulated by the International Sea Bed Authority, who shall adopt

appropriate rules to ensure effective protection for the marine environment

120

payingspecial attention to harmful effects of such activities as drilling, dredging, excavation,

disposal of waste, construction and operation or maintenance of installations, pipelines and

other devices related to such activities121

Pollution originated from land based sources

Despite of being the prevailing source of marine environment polution, there is only limited

number of international law instruments dealing with that probably most national pollution

source. The articles 207 and 213 of UNCLOS III impose states with obligation to adopt and

enforce laws and regulations to prevent, reduce and control pollution of the marine

environment from land-based sources, including rivers, estuaries, pipelines and outfall

structures, taking into account internationally agreed rules, standards and recommended

practices and procedures122 particularly with toxic, harmful or noxious substances,

especially those which are persistent123. Article 207(4) is calling to establish global and

112

Decision of the Governing Council of UNEP iO/l4/VI of 31 May 1982 on the CONCLUSIONS OF THESTUDY OF LEGAL ASPECTS CONCERNING THE ENVIRONMENT RELATED TO OFFSHORE MINING ANDDRILLING WITHIN THE LIMITS OF NATIONAL JURISDICTION.113 The Convention for the Protection of the Marine Environment of the North-East Atlantic, 1992114 The Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1992115 The Convention for the Protection of the Marine Environment and the Coastal Region of theMediterranean, 1976116 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester UniversityPress, p 372-374117 Art. 194(3c) of United Nations Convention on the Law of the Sea 1982118 International Convention on Oil Pollution Preparedness, Response and Co-operation, 1990119 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester UniversityPress, p 376

120 Art. 145 of United Nations Convention on the Law of the Sea 1982121 Ibid.122 Art. 207(1) of United Nations Convention on the Law of the Sea 1982123 Art. 207(5) of United Nations Convention on the Law of the Sea 1982


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regional rules, standards and recommended practices and procedures124 regarding the

subject. And even if there is no global treaty dealing with land-based pollution, a number of

soft-law instruments and regional conventions exist. 125

One of the cornerstone soft-law intruments, the so-called Agenda 21 program of the 1992

Rio Conference 126evaluates the UNCLOS III as the international basis upon which to pursue

the protection and sustainable development127 of the marine and coastal environment and itsresources. The principle of sustainable development is based at the maitenance, rational

use and enhancement of the natural resource base that underpins ecological resilience and

economic growth128. In order to achieve such aim Agenda 21 emphasizes on the integrated

and precautionary approaches to marine environment protection, thus focusing not just at

management of marine environment pollution sources but on protection of ecosystems as a

whole and prevention of marine environment degradation129. The aplication of precautinary

principle to activities causing pollution is asking for standarts or codes of best available

practises130 in order to decrease the risk of accidents131. Agenda 21 also pays due regards to

polluter pays principle by stating that polluter should.bear the cost of pollution, with due

regard to the public interest and without distorting international trade and investment132

There are number of regional treaties dealing with land-based sources of marine polution,

principles of which will be briefly considered at example of the Paris Convention133, the

Helsinki Convention134, one of UNEP Regional Seas Agreements the Mediterranean Protocol135.

All three international law intruments had started from regulating land-based pollution by

dividing pollutants to several categories, subject to the type of measures parties are going to

undertake and how dangerous the particular pollutant is. For instance the Paris Convention

was dividing pollutants into 4 categories: the black list with the most noxious substances 136

pollution by which parties have undertaken to eliminate; grey list with less dangerous

substances137 pollution by which were strictly limited and controled by parties; radioactive

substances in respect of which parties were going to adopt measure to forestall and, as

124 Art. 207(4) of United Nations Convention on the Law of the Sea 1982125 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester UniversityPress, p 379-380126 The United Nations Conference on Environment and Development, held in Rio de Janeiro on 1992127 According to World Commission on Environment and Development, sustainable development definedas development that meets the needs of the present without compromising the ability of futuregenerations to meet their own needs.128 UN General Assembly Official Records 44th session, supplement No. 25 of 1989 (A/44/25) 15

Decision 15/2, Annex II129 Birnie,P. and Boyle,A.(2002) International law and the environment. 2nd ed. Oxford : OxfordUniversity Press, p 349130 BAT(Best Available Technique) a nd BEP (Best Environmental Practice) principle131 Gouilloud, MR. (1981) Prevention and Control of Marine Pollution In: Johnston,DM. ed. TheEnvironmental. Berlin:s.n., p 245132 UN, 1992. REPORT OF THE UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT[online].Available: http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm [accessed on25 July 2010]133 The Convention for the Prevention of Marine Pollution from Land-Based Sources, 1974134 The Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1974;135Protocol for the Protection of the Mediterranean Sea Against Pollution from Land-Based Sources,1980 to the Convention for the Protection of the Marine Environment and the Coastal Region of the

Mediterranean, 1976136 Organohalogen compounds, mercury, cadmium, persistent synthetic material, oil137 Phosphorous, organic compounds of phosphorous, silicon, tin, non-persistent oil, arsenic, heavymetals


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appropriate, eliminate pollution138; the last category included all remaining pollutants, with

no particular activities demanded from states. In order to control emissions of particular

pollutants, two ways were used either uniform emission standard (UES) or water quality

objective (WQO).The Helsinki Convention and the Mediterranean Protocol have demonstrated

similar aproach by trying to control emissions of pollutants substance-by-substance. . 139

However, in the beginning of the 1990s under the influence of international environmentallaw evolution, the Paris Convention, the Helsinki Convention and the Mediterranean Protocol

were altered to abandon black and grey lists principle and give effect to new concepts

and principles of sustainable development, biodiversity, polluter pays, best available

technique (BAT) and best environmental practice (BEP). The Paris and the Oslo Convention 140

were replaced by OSPAR141 Convention, which came into force at 1998. The Article 3 obliges

parties to take all possible steps to prevent and eliminate pollution from land-based

sources142; BATs and BEPs are outlined in Appendix 1; states according to Article 6 assess the

quality status of the marine environment and the effectiveness of the measures taken 143

at regular intervals. As it was stated by Churchill and Lowe144 the efectiveness of the

convention would depend on the functioning of Paris Commission, authority responsible forpoint sources discharges approval. The 1974 Helsinki Convention145 was replaced by 1992

Helsinki Convention146 imposing parties to prevent and eliminate pollution of the Baltic Sea

Area from land-based sources by using, inter alia, Best Environmental Practice for all sources

and Best Available Technology for point sources147 The Mediterranean Protocol was amended

in 1996 in order to adopt time-tables cutting down marine environment pollution by

pollutants which are toxic, persistent or bio-accumulates by employing Best Environmental

Practice for point and diffuse sources and Best Available Technology for point sources. 148

138

Art.5 of The Convention for the Prevention of Marine Pollution from Land-Based Sources, 1974139 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester UniversityPress140 The Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft, 1972141 The Convention for the Protection of the Marine Environment of the North-East Atlantic, 1992142 Article 3 of The Convention for the Protection of the Marine Environment of the North-East Atlantic,1992143 Article 6 of The Convention for the Protection of the Marine Environment of the North-East Atlantic,1992144 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester UniversityPress, p 384145 The Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1974;146 The Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1992;

147 Article 6(1) of the Convention on the Protection of the Marine Environment of the Baltic Sea Area,1992;148 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester UniversityPress


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Atmospheric Pollution

The UNCLOS III treats pollution from or through the atmosphere as independent marine

environment pollution source and addresses it the way similar to other pollution sources by

prescribing states according to the Articles 212 and 222 to adopt and enforce laws andregulations to prevent, reduce and control149such polution and inducing them to establish

global and regional rules, standards and recommended practices and procedures to150

achieve that aim. Several regional agreements also constitute provisions addressing marine

environment pollution originated from land sources through the atmosphere, for instance

OSPAR Convention reckons such marine environment pollution to land based sources and deals

with it in regular way 151, the 1992 Helsinki Convention152 uses the same aproach, the

Mediterranean Protocol with the 1996 amendments provide general emission eliminating

obligations dealing with aerial emissions . However, as it explained by Churchill and Lowe 153

most regional convention except perhaps OSPAR and Helsinki Conventions had not achieved

any practical result in ceasing pollution from atmospheric emissions.154

Conclusion

There is vast amount of international law addressing issues of marine environment polution,

which was referred by European Commission as a patchwork of policies, legislation,

programmes and actions pans at national, regional, EU, and internatinal level 155. The scopes

of the current essay allowed only brief outline the basic frame of international environmentallaw regarding to the issue of marine environmental protection from pollution.

That concerning assessment of the international law contribution to the protection of the

marine environments, as it was stated in the aforesaid European Comission memorandum:

the general picture that emerges from this policy framework is a mixed one. On the positive

side, some progress has been made in certain areas.However, overall, the state of marine

environment has been deteriorating significantly over recent decades156.

There are several problems identified into international environmental law dedication to

issues of marine environment protection from pollution. In order to encrease contribution it is

necessary to improve the implementation and enforcement of existing international law

149 Art. 212(1) of United Nations Convention on the Law of the Sea 1982150 Art. 212(3) of United Nations Convention on the Law of the Sea 1982151 Art. 1e of The Convention for the Protection of the Marine Environment of the North-East Atlantic,1992152 The Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1992;153 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester UniversityPress, p 391154 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester UniversityPress, p 389-391155European Commission 2002. Communication from the Commission to the Council and the European

Parliament - Towards a strategy to protect and conserve the marine environment [online]Available:http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52002DC0539:EN:NOT[accessed on 25 July 2010]156 Ibid.


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instruments. However, implementation and enforcement are the weak points of the

international law, as to be implemented it has to pass through the complex and sometimes

very long process of national ratifications. And Conventions secretariats source their

information from states signatories, who are not interested to report failures and disregards

to conform with their obligations.

According to Churchill and Lowe 157 the international community should focus at:

Bringing into force the environmental conventions, which have not been implementedyet by encreasing number of ratifications;

Ensuring effective functioning of regional agreements commissions and meetings; More effective implementation of the existing international treaties Better control over effects of existing standarts

157 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester UniversityPress, p 396


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To What Extent Has International Law Contributed to the Protection of the Marine Environment From Pollution