Sea Gra/Tf Depository International Cooperation for the Prevention of Marine Oil Pollution
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MIAU-T-75-005 C. 3 Sea Gra/tf Depository International Cooperation For the Prevention of Marine Oil Pollution Andrew W. Anderson William K. Bissell f^rtl (f V\ -•^ Technical Bulletin Number 33 September 1975 CIRCULATING COPY Si Sea Grant Depository Sea Grant Technical Bulletin No. 33 Ocean and Coastal Law Program INTERNATIONAL COOPERATION FOR THE fpl PREVENTION OF MARINE OIL POLLUTION pi pi Andrew W. Anderson William K. Bissell •fci I ^1 Price: $3.00 1 Library of Congress Catalog Card Number: 1 This publication is distributed under Grant 004 5 158 14 of the NOAA Office of Sea Grant, Department of Commerce. Anyone is authorized to produce and distribute reprints. r^ Information Services Sea Grant Program University of Miami m 1541 Brescia J Coral Gables, FL 33124 1 1 1 f w\ About the Authors Both Mr. Anderson and Mr. Bissell are 1969 graduates of the U.S. Coast Guard Academy. They are currently active duty Lieutenants iii the United States Coast Guard, as well as J.D. students in the pi University of Miami, Ocean and Coastal Law Program. The opinions i or assertions contained herein are the private ones of the writers and are not to be construed as official or reflecting the views of the Commandant or the Coast Guard at large. I ,p* TABLE OF CONTENTS I. SCOPE OF THE PROBLEM 1:1 Introduction 1 1:2 Ecosystem of the Marine Environment 2 1:3 Nature of Pollutants in the Marine pi Environment 5 L 1:4 Magnitude of the Problem 12 II. AN EXAMINATION OF THE PROBLEM OF OIL POLLUTION OF THE MARINE ENVIRONMENT: CHARACTERISTICS P 2:1 Introduction 19 2:2 Scope of this Chapter 21 2:3 Sources of Oil Pollution 22 2:3:1 Land-based Sources 23 2:3:2 Non-vessel Marine-based Sources 24 2:3:3 Vessel Source Oil Pollution- Operational Loss 25 2:3:4 Traumatic Vessel Source Oil Pollution 29 2:4 Anatomy of an Oil Spill 32 2:4:1 Environmental Effects of Oil Pollution 33 2:4:2 Long Term Environmental Effects of Oil Pollution 35 2:4:3 Economic Effects of an Oil Spill 36 2:5 Patterns of Pollution 38 2:6 Summary 43 IIII. THE ECONOMIC AND POLITICAL CONTEXT OF THE OIL ' POLLUTION PROBLEM TODAY f 3:1 The Marine Transportation Industry 55 3:2 National Interest 58 3:2:1 Flag of Convenience Nations 58 3:2:2 Coastal Nations on Tanker Routes 59 3:3 The Economics of Superships 60 11 3:4 The Dangers of Superships 62 IV. THE LEGAL CONTEXT OF INTERNATIONAL COOPERATION } 4:1 Development of the International Law of « the Sea 68 f 4:1:1 Freedom of the Sea 68 4:1:2 Exclusive Flag State Sovereignty 69 1 4:1:3 The Territorial Sea 69 4:1:4 The Right of Innocent Passage 70 4:1:5 The Contiguous Zone 70 "*% 4:2 Contemporary Law of the Sea 71 4:2:1 Jurisdiction over vessels 71 1 4:2:2 Enforcement on the High Seas 73 ^ 4:3 Development of Int'l Cooperation 74 *f 4:3:1 International Maritime Cooper ation Historically 75 <^ 4:3:2 Cooperation through International Organizations 76 V. INTERNATIONAL RESPONSES TO THE OIL POLLUTION 1 PROBLEM 5:1 Analysis of the Elements of the ^ Problem 85 5:2 Prevention of Oil Pollution 86 _ 5:2:1 1954 Convention for the Prevention of Pollution of the Sea by Oil 86 5:2:2 High Seas Convention 89 1 5:2:3 Shelf Convention 89 5:2:4 Territorial Sea and Contiguous Zone 90 5:2:5 Fishing Convention 90 m 5:2:6 Dumping Convention 91 5:3 Control of Oil Pollution 91 ^ 5:4 Liability for Oil Pollution 92 3 5:4:1 TOVALOP 93 4 P5S «" 5:4:2 CRISTAL 93 (SH 5:4:3 Liability Convention 94 5:4:4 Compensation Fund Convention 95 5:5 Summary 96 VI. TECHNICAL ASPECTS OF THE OIL POLLUTION PROBLEM 6:1 Introduction 103 p^ 6:2 Techniques for Prevention 103 6:2:1 Onboard the Vessel 103 6:2:2 In Coastal Waters 104 6:3 Technical Aspects of Control 104 r 6:4 Techniques of Determining Liability 105 6:5 Summary 106 VII. RECENT INTERNATIONAL ACTIVITY '^ 7:1 Introduction 109 7:2 Stockholm Conference 109 7:3 IMCO Conference 111 7:3:1 Basic Convention 111 'p* 7:3:2 The Technical Annexes 113 7:3:2:1 Annex I 113 7:3:2:2 Annex II 115 7:3:2:3 Annex III 115 7:3:2:4 Annex IV 115 7:3:2:5 Annex V 116 7:3:2:6 Protocol I 117 7:3:2:7 Protocol II 117 7:4 The 1974 LOS Conference 117 VIII. SUMMARY AND CONCLUSION 124 SELECTED BIBLIOGRAPHY 130 United States Case Law 130 ^ International Case Law 130 f 1 United State Statutes 130 ff^3 United State Regulations 130 1 Foreign Statutes 131 Multilateral Treaties in Force 131 Multilateral Treaties Not in Force 132 Proposed Drafts of International Treaties 132 Private International Agreements 133 Conferences 133 United States Government Publications 134 Publications of International Organizations 134 « Book3 and Treaties 134 Essays in Collection 136 Periodicals 137 Law Review Articles 137 General Periodicals 142 Newspapers 144 . tf CHAPTER I W) SCOPE OF THE PROBLEM 1:1 INTRODUCTION Although this paper examines specifically the problem of oil pollution of the marine environment by vessels, the underlying theme concerns the interdependence of everything on the Earth. This dependence demands cooperation by man on an international scale. Hopefully, the possibility of ecological apocalypse can bestir genuine cooperative effort among nations. This paper provides an overview of the problem as it exists prior to the 1976 New York Law of the Sea Conference. To examine the question properly, initial definitions must be provided concerning the marine w* ecosystem, oil, and the interaction of these two. Next the paper explains international awareness of the problem and the general history of interna fflto tional cooperation. Then the various international agreements concerning oil pollution of the marine ecosystem are discussed. Finally this writing details the most recent developments leading up to the 1976 New York meeting. It is the intent of this paper to provide much of the technical and economic background necessary to understand the necessity for international cooperation while at the same time providing a discussion of its legal context. To this end, the first three chapters of this paper appear some what technical and bear little resemblance to what is normally considered legal writing. The paper then traces the development of international law and cooperation from their earliest origins to the most recent develop ments. Again, more detail than seems absolutely necessary is presented in order to provide adequate background material for proper understanding ff^ of the situation. The paper concludes with a discussion of recent trends in the area and some predictions for the future as well as some sugges tions as to how the problem might be handled. As to the outset, one must become cognizant of the importance of the •SIR I -1- importance of the marine ecosystem. In short, the existence of all life on Earth depends upon the oceans. The complex hydrocycle of this planet and its living organisms symbolize the core of human existence. Furthermore, the oceans represent the keystone in this important cycle. 1:2 ECOSYSTEM OF THE MARINE ENVIRONMENT Commensurate with its importance, the physical dimensions of the marine ecosystem dwarf anything existing on the land. The oceans cover 70.8 percent of the Earth's surface. Trenches within this vastness descend to a depth of 37,800 feet versus the mere 5,000 feet depth of the Grand Canyon. Mauna Loa volcano rises more than 30,000 feet from the floor of the Pacific as compared with, the 29,000 feet height of Mount 2 Everest. Seventy-seven percent of the ocean has a depth in excess of 3 9,000 feet. Eleven major components constitute sea water with chlorine, sodium, sulfate, and magnesium being present in the largest quantities. A biologically based topography would be most useful in describing the marine ecosystem. Broadly speaking, the marine ecosystem divides itself between the neritic (near shore) and oceanic areas. In addition, each of the following zones encompasses a separate habitat for marine organisms. Beginning where the highest tides splash the rocks, one finds in descending order the supratidal, intertidal, subtidal, lower neritic, bathyl, abyssal, and finally the hadal in the deep ocean trenches. The concept of the euphotic layer lies over these zones like a blanket and links them together with its premier importance to all sea life. This layer extends from the surface of the ocean to a depth of approximately fmp 30 meters. Below this depth, photosynthesis cannot occur because sunlight penetrates insufficiently. The causes of this exclusion of light include reflection, scattering, and absorption as heat energy. As on the land, photosynthesis forms the basis of all life within the marine ecosystem. In terms of gross productivity, the oceanic area leads with 82 percent in comparision with 18 percent for the neritic area. The fallacy of the figures becomes apparent when one observes that -2- <^» the oceanic area encompasses a sphere nine times that of the neritic area, and all of the oceanic area has a 30 meter depth while only a portion of the neritic area has a depth of 30 meters. When comparing a more relevant figure such as the rate at which plants store energy via photosythetic activity in the form of organic substances, one dis covers that the neritic area generates ten to thirty times more pro- 8 ductivity than the oceanic area.