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Protecting the marine environment from land-based sources of marine pollution: towards an effective cooperative International arrangement
S.M Daud Hassan University of Wollongong
Hassan, S.M Daud, Protecting the marine environment from land-based sources of marine pollution: towards an effective cooperative International arrangement, Doctor of Philosophy thesis, Faculty of Law, University of Wollongong, 2002. http://ro.uow.edu.au/theses/1859
This paper is posted at Research Online.
PROTECTING THE MARINE ENVIRONMENT FROM
LAND-BASED SOURCES OF MARINE POLLUTION:
TOWARDS AN EFFECTIVE COOPERATIVE
INTERNATIONAL ARRANGEMENT
A thesis submitted in fulfilment of the requirements for the award of the degree
DOCTOR OF PHILOSOPHY
from
UNIVERSITY OF WOLLONGONG
by
S.M. DAUD HASSAN, LL.M (Sydney), LL.M, LL.B (Hons.) (Rajshahi)
Faculty of Law
2002 CERTIFICATION
I, S. M. Daud Hassan, declare that this thesis, submitted in fulfilment of the requirements for the award of Doctor of Philosophy, in the Faculty of Law,
University of Wollongong, is wholly my own work unless otherwise referenced or acknowledged. The document has not been submitted for qualifications at any other academic institution.
S. M. Daud Hassan ^ ^ 0 2- • o V. 2^^S Date This thesis is dedicated to my wife Rita and our daughter Trisha. An Article based on Chapter 7 of this thesis has been accepted for publication in the
Asia Pacific Journal of Environmental Law:
Hassan Daud, 'Land-based Sources of Marine Pollution Control m Bangladesh: A legal
Analysis' Asia pacific Journal of Environmental Law, 2002, Vol 7. ABSTRACT
This thesis explores the applications and shortcomings of international regimes addressing land-based sources of marine pollution (LBSMP).
It identifies the sources and effects of LBSMP in addition to problems and associated issues in controlling them. Management principles, policy, and laws of LBSMP control are examined at both regional and international levels along with the problems and prospects of present regimes of LBSMP control.
The investigation commences with a descriptive account of international management principles and policies of LBSMP control and proceeds by examining relevant provisions of international and regional legal regimes. It also examines the major strengths and weaknesses of these regimes and difficulties involved in their implementation. These are investigated in order to gain an understanding of, and to fill in the gaps in present regimes of LBSMP control, and to formulate and suggest an effective international legal framework.
Global findings estimate that 80% of marine pollution originates from land-based sources and is trans-boundary in nature. A number of legal and policy initiatives have been undertaken incorporating international management principles to establish international regimes to protect the marine environment from LBSMP. However, they are still inefficient, and questions remain as to how effective present regimes are. It is concluded here that the existing global arrangements of LBSMP control are unsatisfactory. United Nations Convention on the Law of the Sea (LOSC), the only global treaty addressing LBSMP, inadequately covers this issue. Several globally agreed mles, standards, and recommended practices have been adopted together with detailed strategies. Although they have provided guidance on actions needed, and emphasis on the importance of cooperation at international and regional levels to control LBSMP, they are of a non-binding nature. Nevertheless, it is found that LBSMP control is better addressed at regional levels. Provisions in regional treaties are more onerous and precautionary than those of the LOSC. However, over all, satisfactory outcomes are yet to be seen at regional levels. Finally, progress has been achieved only in regions where developed countries or jointly developed and developing countries, are the participants in a LBSMP control regime. LBSMP control is grossly neglected where control regimes comprise only developing countries. These findings suggest that more effective arrangements remain to be designed, particularly to reinforce LBSMP control opportunities for developing countries cooperating through regional regimes.
Based on the conclusions of the thesis, one possible solution to the deficiencies of the existing legal regimes of LBSMP control is proposed. That is, a comprehensive global treaty, with a new model of effective cooperation through the interlocking of regional and global arrangements, is proposed.
11 ACKNOWLEDGMENTS
In the writing of this thesis I have been supported by various people and institutions.
Firstly, I would like to express my deep appreciation to my supervisor, Associate
Professor Gregory Rose, at the Faculty of Law, University of Wollongong, for his kind and excellent supervision, providing me continuing support and feedback. The completion of this important project would have been very difficult without his help.
I am also indebted to Professor Martin Tasmenyi at the Centie for Maritime Policy in the University of Wollongong for his role in supervising my research, and supporting me in the faculty.
I would like to express my appreciation to the academic and administrative staff of the
Faculty of Law, University of Wollongong, particularly Professor Helen Gamble
(Former Dean of the Faculty), Professor David Farrier, and Dr. Rick Mohr for their support.
I am also grateful to Associate Professor Harry Geddes, Head of School of Law,
University of New England, and Dr. Imtiaz Omar, Senior Lecturer in Law, University of
New England, for their extended support for my study.
I express my thanks to the staff of Wollongong University Library, particularly those in the the inter-library loan section, and Ms. Ehzabeth White, Law Librarian, for their
iii continuing support. I would also express my thanks to the staff of the Law Library of the University of New South Wales, and the Fisher and Law Libraries of the University of Sydney. Special thanks are due to UNEP's Cordination Office in The Hague and
UNEP's regional office, Bangkok, for providing me relevant materials on Land-based
Sources of Marine Pollution.
I would hke to express my special thanks to my family and fiiends for their encouagement and support while I undertook this study.
Last but not the least, I express my appreciation to my wife, Rita and our only daughter,
Trisha for their sacrifice, tolerance, support and understanding. I am grateful to them as they shared all difficulties with me that I faced during my study.
Although I have been assisted by people and institutions, I am responsible for the opinion expressed and for any mistakes that may remain in the thesis.
IV TABLE OF CONTENTS
Abstract / Acknowledgments Hi
Table of Contents V Table of Figures and Tables ix
Table of Abbreviations X Table of Conventions xii Table of Cases xvi Chapter 1: Introduction 1 1.1 Protection of the Marine Environment from Pollution 1 1.2 Importance of Land-based Sources of Marine Pollution (LBSMP) Control 5 1.3 Rationale of the Research 10 1.4 Research Obi ectives 10 1.5 Research Methodology 12 1.6 Chapters Overview 15 Chapter 2: Sources and Effects of LBSMP 19 2.1 Introduction 19 2.2 Control of Marine Pollution 20 2.3 Contamination and Pollution Distinguished 21 2.4 The Myth of the Endless Waste Sink 23 2.5 Defining Marine Pollution 24 2.6 Sources of Pollution 26 2.7 Land based Defined 27 2.8 Pathways of Pollution 28 2.9 LBSMP and Its Impact on the Marine Envirormient 31 2.9.1 Types of Activities 32 2.9.1 (a) Household Activities 32 2.9.1 (b) Industrial Activities 33 2.9.1 fc) Agricultural Activities 34 2.9.1 fd) Summary 36 • Mediterranean Seas Region 37 • West and Central African Seas Region 37 • South Pacific Seas Region 38 • East Asian Seas Region 40 • Wider Caribbean Seas Region 40 2.9.2 Types of Contaminants 41 2.9.2 fa) Plastic Litter 41 2.9.2 Cb) Nutiients 44 2.9.2 (c) Heavy Metals 47 2.9.2 (d) Sedimentation 50 2.9.2 (e) Oil 53 2.9.2 (f) Radioactive Wastes 56 2.9,2 fg) Summary 58 Conclusion 58 Chapter 3: Problems and Issues in LBSMP Control 60 3.1 Introduction 60 3.2 Scientific and Technical Problems of LBSMP Control 61 3.2.1 Lack of Data for Identification of Sources of LBSMP 63 3.2.2 Lack of Data for Determination of Damage 64 V 3.3 Economic Problems of LBSMP Conti:ol 65 3.4 Legal Conceptual Problems of LBSMP Control 68 3.4.1 Threshold of Trans-boundary Enviroimiental Damage 68 3.4.2 Resistance to Restriction of Sovereignty 73 3.5 Conclusion 78 Chapter 4: International Principles for LBSMP Management 80 4.1 Introduction 80 4.2 Sustainable Development of Marine and Coastal Environment 82 4.2.1 Sustainable Development and LBSMP control 83 4.2.2 Economic ImpUcations of Sustainability and LBSMP Control 84 4.3 Integrated Coastal Zone Management (ICZM). 86 4.3.1 ICZM and LBSMP Conft-ol 88 4.3.2 The Complexity of ICZM 91 4.4 Environmental Impact Assessment (EIA) 93 4.4.1 EIA and LBSMP Conti:ol 94 4.4.2 Limitations of the Application of EIA 96 4.5 The Precautionary principle 97 4.5.1 The Precautionary Principle and LBSMP 100 4.5.2 Scientific and Economic Implications of the Precautionary Principle 101 4.6 The Polluter Pays Principle 103 4.6.1 Polluter Pays Principle m LBSMP Control 105 4.7 Cleaner Production 107 4.7.1 Cleaner Production and LBSMP Control 109 4.8 Implementation System 110 4.9 Conclusion 114 Chapter 5: The Global Framework for Land- Based Sources of Marine Pollution Control 116 5.1 Introduction 116 5.2 Customary International Law 118 5.2.1 The Principle of Good Neighbourliness 120 The Trail Smelter Arbitration 121 Lake Lanoux Arbitration, with Respect to Prospective Damage 122 The Corfu Channel Case 126 Case Concerning the Gabcikovo-Nagymaros Project 127 5.2.2 Reasonableness Use 129 5.3 Treaty Law on LBSMP 131 5.3.1 Early Development 132 5.3.2 Development in 1970s and thereafter 136 5.3,2,1 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other matters (hereinafter London Convention) 1972 136 5,3,2,2 LOSC - Provisions in Relation to LBSMP Contiol 140 The MOX Plant Case 150 5.4 Soft Law 154 5.4.1 Stockholm Conference (1972) 155 5.4.2 Montreal Guidehnes (1985) 160 5.4.3 United Nations Conference on Environment and Development (UNCED) 1992 166 5.4.3.1 Agenda21 166 5.4.3.2 Chapter 17 of Agenda 21 168 5.4.4 Washington Conference 1995 172 5.4.5 TheGPA 174 5.5 Conclusion 182 Chapter 6: Regional Frameworks for Land-Based Sources of Marine Pollution Control 186 6.1 Introduction 186 6.2 Regional Approach for LBSMP Control 188 6.3 Regional Agreements Surveyed and Analysed 191 6.3.1 Non-UNEP regional agreements on LBSMP control 192 6.3.1 (a)(i) North East Atlantic Sea: The OSPAR Convention 1992 192 The OSPARCOM Recommendations, Decisions and Action Plans 198 vi OSPAR Ministerial Declarations 200 6.3,1 (a) (ii) North East Atiantic Sea : International North Sea Conferences (INSCs) 202 6.3,1 (a)(iii) North East Atiantic Sea : EEC Directives 207 Summary 210 6.3.1 (b) Baltic Sea: Helsinki Convention (1974) 212 Recommendations, Action Plans and Declarations 218 6.4 UNEP Initiatives to Control LBSMP 223 • Regional Seas Program (RSP) 224 6.4.1 Legal Frameworks at the Regional Level 226 6.4.1 (a) Protocols on LBSMP Control 231 (i) Mediterranean Sea: The Athens Protocol 233 (ii) South-East Pacific Ocean: The Quito Protocol. 237 (iii) Kuwait (ROPME Area): The Kuwait Protocol 240 (iv) Black Sea: The Bucharest Protocol 244 (v) Caribbenean Sea: The Aruba Protocol 247 6.5 Comparative Analysis 250 6.6 Conclusion 260 Chapter 7: Land Based Marine Pollution Control in the Bay of Bengal Region : A Case Study 263 7.1 Introduction 263 7.2 Environmental Conditions of the Bay of Bengal Region in South Asia 265 7,2.1 Analysis of Activities Causing LBSMP in the Bay of Bengal 274 7.2.1 (a) Pollutants from Agricultural Chemicals 276 7.2,1 (b) Industrial pollutants (Non-agricultural) 277 7.3 Regional Approaches to LBSMP Control in the Bay of Bengal 279 7.3.1 Soutii Asian Seas Action Plan 279 7.3.2 Colombo Workshop on LBSMP 282 7.3.3 Bay of Bengal Program 285 7.4 National activities on Marine Environmental issues in the Bay of Bengal Region in South Asia 287 7.4.1 International instrument commitments 288 7.4.2 National Legislation 288 7,4,3 National Policies 292 7.4.4 Marine Environmental Research and Education 294 7.4.5 Public Participation 296 7.5 Obstacles In Dealuig With LBSMP In The Bay Of Bengal Sub-Region 298 7.5.1 Poverty 298 7.5.2 Incapacity 300 7.5.3 Lack of Economic Incentive to use Resources in a Sustainable Manner 301 7.5.4 Sub-Regional Conflicts 302 7.6 The Way Forward: Cooperation and Partnership Building 304 7.7 Conclusion 306 Chapter 8: Towards an Effective International Cooperative Arrangement for LBSMP Control 308 8.1 Infroduction: Problems and Prospects of Effective LBSMP Control 308 8.2 International Cooperation and Marine Pollution Control 309 8.3 Perceived Shortcomings of Current Cooperative Mechanisms for LBSMP Control 313 8.3.1 Global Frameworks 314 • United Nations Convention on the Law of the Sea (LOSC) 314 • Montreal Guidelines 315 • Agenda 21 and the GPA 317 8.3.2 Regional Frameworks 318 8.3.3 Continuing Need for Effective Cooperation 320 8.3.3 (a) Environmental Liability: Need for Enforceable Standards 323 8.3.3 (b) Resolution of Disputes re LBSMP Contiol: Need for Broader Framework 327 8.3.3 (c) Crucial Need for Capacity Building 331 (i) Funding and Technology Transfer 332 (ii) Public Participation, Awareness and Education 337 (iii) Political Commitment 338 8.4 Foundation of a New Model for Effective Cooperation for LBSMP Control 340 vii 8.4.1 Effective Cooperation as an Imperative for LBSMP Control 340 8.4.2 Interlinking Regional and International Cooperation 342 8.4.3 Addressing Liability, Dispute Setdement and Capacity Building in a New Cooperative Approach 345 8.5 Towards an Enforceable International Cooperative Arrangement to Control LBSMP _347 8.6 Conclusion 356 Chapter 9: Conclusion 358 Bibliography 364 A. Books, Journal Articles and Reports 364 B. Magazines and Newspapers 391 C. Internet Sites (as at September 2002) 391
Vlll TABLE OF FIGURES AND TABLES
TABLES
Table 2.1 Discharge of Pesticides into the Mediterranean Sea Table 2.2 Levels of Treatment at UK Outfalls Prior to Discharge Table 2.3 Collected Plastic Litter along 560 KM of United Nations Beach Front Table 2.4 Origin of Anthropogenic Inputs of Nitrogen and phosphoms Table 2.5 World-wide Emission of Trace Metals into the Marine Environment Table 2.6 Heavy Metal Flow in the Vietnamese Sea Table 2.7 World-wide Erosion Table 2.8 Selected Rivers of the World Ranked by Annual Sediment Load Table 2.9 Estimated World Input of Pefroleum Hydrocarbons to the Sea Table 6.1 Level of Ambitions, Level of Performance and Influence of International Communities on National Goals in Relevant Terms Table 6.2 Institutional Arrangements for the Protection of the Marine Environment from Land-based Activities Table 6.3 Priority Identification of Land-based Sources through Regional Workshops Table 6.4 Progress in Addressing Land-based Activities by Regional Seas Table 6.5 status of Regional/National Programs on Land-based Activities, Identification of Needs and Opportunities Table 7.1 Estimated Amount of Insoluble Inorganics Entering the Sea-water in Bangladesh Table 7.2 Heavy Metals in Sediments of some Estuaries of the Indian East Coast and in the Bay of Bengal Table 7.3 Total Suspended and Chemical Load Entering the Bay of Bengal from Six Major Indian Rivers Table 7.4 Heavy Metal Composition of the Sediments of the Ganga and Hugh Table 7.5 Pollutants from Agricultural Chemicals Table 7.6 Industrial Pollutants, Non-Agricultural Table 7.7 Signatories to Intemational Instruments Related to LBSMP Control by the Countries within the Bay of Bengal Sub-region
FIGURES
Figure 2.1 Types of Litter Found in Survey in Ausfralia Figure 6.1 Regional Seas Figure 6.2 Meditenanean Region Figure 6.3 South East Pacific Region Figure 6.4 ROPME Sea Area/Red Sea and Gulf of Aden Figure 6.5 Black Sea Region Figure 6.6 Caribbean Region Figure 7.1 Countiies of Bay of Bengal Region Figure 7.2 River Systems of Bangladesh Figure 7.3 Bay of Bengal Figure 8.1 Qualitative Ratings of Capacity and Incentive to Undertake LBSMP Contiol Figure 8.2 Relative Capacities and Incentives to Contiol LBSMP throughout the Wider Caribbean Region
IX TABLE OF ABBREVMTIONS
ACOPS Advisory Committee on the Pollution of the Sea ADB Asian Development Bank ASEAN Association of the South East Asian Countries BAT Best Available Technology BCAS Bangladesh Centre for Advance Studies BEP Best Environmental Practices CDS Compulsory Dispute Settlement CETP Common Effluent Treatment Plant CIL Customary Intemational Law CSD Commission on Sustainable Development DOE Department of Environment EEC European Economic Community EEZ Exclusive Economic Zone EIA Environmental Impact Assessment EPA Environment Protection Authority FAO Food and Agricultural Organisation GCRMN Global Coral Reef Monitoring Network GDP Gross Domestic Product GEF Global Environment Facility GESAMP United Nations Joint Group of Experts of Scientific Aspects of Marine Pollution GFCM General Fisheries Council for the Meditenanean GNP Gross National Product GPA Global Program of Action for the Protection of the Marine Environment from Land -based Sources GPPPS Global Public Private Partnerships HELCOM Helsinki Commission lAEO Intemational Atomic Energy Organisation ICJ Intemational Court of Justice ICLARM Intemational Centre for Living Aquatic Resources Management ICZM Integrated Coastal Zone Management lEL Intemational Environmental Law ILC Intemational Law Commission ILM Intemational Legal Materials ILTOS Intemational Tribunal for the Law of the Sea MM Interim Ministerial Meeting IMO Intemational Maritime Organisation INDSEC Commission Working Group on Industrial Sectors INSC Intemational North Sea Conferences IOC Inter-Governmental Oceanographic Commission lOI (India) Intemational Ocean Institute Operational Centie (India) lOI Intemational Ocean Institute lOMAC Indian Ocean Marine Affairs Cooperation lUCN Intemational Union for the Conservation of Nature and Natural Resources IWGMP Inter-Governmental Working Group on Marine Pollution LBA Land Bases Activities LBS Land-based Sources LBSMP Land-based Sources of Marine Pollution MPBu Marine Pollution Bulletin MAP Mediterranean Action Plan MEDPOL Program for the Assessment and Control of Pollution in the Mediterranean Region MEDU Regional Coordinating Unit Meditenanean Action Plan MOEF Ministry of Environment and Forest MPC Marine Policy Centie NEMAP National Environment Management Action Plan NEP National Environment Policy NGO Non-Governmental Organisations NOAA National Oceanic and Atmospheric Administiations OCA Ocean and Coastal Areas Program OECD Organisation for Economic Cooperation and Development PAC Program Activity Centie PAHO Pan American Health Organisation PAH Polycyclic Aromatic Hydrocarbons OSPARCOM Paris Commission PCIJ Permanent Court of Intemational Justice PLC Pollution Load Complication POP Persistent Organic Pollutants RAC Australia's Resource Assessment Commission ROPME Regional Organisation for the Protection of the Marine Environment RSP Regional Seas Program SAARC South Asian Association for Regional Cooperation SACEP South Asian Cooperative Environment Program SADTI Asia Development Triangle Initiative SAP Stiategic Action Plan SEMP Sustainable Environmental Management Program SMT Selected Multilateral Treaties UNCED United Nations Conference on Environment and Development UNDP United Nations Development Program UNEP United Nations Environment Program UNESCO United Nations Scientific and Cultural Organisation UNO United Nations Organisation UNTS United Nations Treaty Series WCED World Commission on Environment and Development WCR Wider Caribbean Region WMO World Metallurgical Organisation WRC Water Research Centie WWF World Fund for Nature YBILC Yearbook of Intemational Law Commission xi TABLE OF CONVENTIONS
Global Treaty
Intemational Convention for the Prevention of Pollution of the Seas By Oil 1954, 327 UNTS 3
Convention on the High Seas, 1958, UNTS Vol 450, at 82
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters, 1972, 1046 UNTS 120; 11 ILM (1972) 1291
Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas, 1958, UNTS 285
Geneva Convention on the Continental Shelf, 1958, 499 UNTS 311
Geneva Convention on the High Seas, Geneva, 1958, 450 UNTS 11
Geneva Convention on the Territorial Sea and Contiguous Zone, 1958, 516 UNTS 205
Intemational Convention for the Prevention of Pollution of the Seas by Oil 1969 327 UNTS 3; 9 ILM (1969)1
Intemational Convention on Civil Liability for Oil Pollution Damage, 1969, 9 ILM (1970) 45
Intemational Convention Relating to Intervention on the High Seas in Case of Oil Pollution Casualties 1969, 704 UNTS 3; 9 ILM (1969) 25
Intemational Convention for the Prevention of Marine Pollution by Dumping from Ship and Aircraft, Oslo, 1972,11 ILM (1972) 262
Intemational Convention for the Prevention of Pollution from Ships, 1973, 12 ILM (1973) 1319
Convention on the Conservation of Migratory Species of Wild Animals, 1979, 19 ILM (1980) 15
United Nations Convention on the Law of the Sea. Adopted by the Third United Nations Conference on the Law of the Sea, 10 December, 1982, 21 ILM (1982) 1261, 1833 UNTS 3 and 1835 UNTS 261
Intemational Convention on Oil Pollution Preparedness, Response and Cooperation, 30 Nov 1990, S. Treaty Doc. No II, 1991; 30 ILM (1991) 733
United Nations Convention to Combat Desertification, 1994, 33 ILM (1994) 1328
United Nations Stiaddling and Highly Migratory Fish Stocks Agreement, 1995, 34 ILM (1995) 1542 xii Stockhohn Convention on Persistent Organic Pollutants, May 2001
Regional Treaty
Convention for the Protection of Birds Useful to Agriculture, 1902 (March 19, 1902, 102 B F S P 969 (entered into force May 11, 1907)
Treaty Relating to Boundary Waters between the United States and Canada, January 11, 1909, U.S-Great Britain, 36 Stat. 2448
Treaty for the Preservation and Protection of Fur Seals, 1911, Febmary 7, 1911, US - Great Britain, 37 Stat. 1538
Convention for the Protection of Migratory Birds in the United States and Canada, 1916, August 16,1916, U S-Great Britam, 37 Stat. 1538
Frontier Treaty, 1960, concluded between the Netherlands and the Federal RepubHc of Germany
Borm Convention on the Prevention of Pollution of the North Sea, 1969, 9 ILM (1969) 359
Paris Convention for the Prevention of the Marine Environment from Land-based Sources, 1974,13 ILM (1974) 352
Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1974, 13 ILM (1974) 546
Barcelona Convention for the Protection of the Mediterranean Sea Against Pollution, 1976,15 ILM (1976) 290
Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution 1978, 1140 UNTS 133, 17 ILM (1978) 511
Protocol for the Protection of the Mediterranean Sea Against Pollution from Land-based Sources, 19 ILM (1980) 869
Convention for Cooperation in the Protection and Development of the Marine and Coastal Environment of the West and Cential Afiican Region, 20 ILM (1981) 746
Convention for the Protection of the Marine Environment and Coastal Area of the South East Pacific 1981, SMT :130 ; BEL 981 : 84
Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment 1982, SMT 2:144; 22 ILM (1982) 219
Protocol for the Protection of the South-East Pacific Against Pollution from Land-based Sources 1983, SMT 2:139; lEL 983:54
Xlll Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region 1983, 22 ILM (1983) 227
Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region 1985, SMT 2: 234
Convention for the Protection of the Natural Resources and Environment of the South Pacific Region 1986, 26 ILM (1987) 38
The Wellington Convention for Antarctic Environment, 1988, 27 ILM (1988) 898
Protocol for the Protection of the Marine Environment [of the Kuwait Region] Against Pollution from Land-based Sources, 1990
Convention for the Protection of the Marine Environment of the North-East Atlantic (1992) 32 ILM (1993) 1072
Convention on the Protection of the Black Sea against Pollution 1992, 32 ILM (1992) 1110
Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1992, BNA 35:0401
Protocol on Protection of the Black Sea Marine Environment Against Pollution from Land-based Sources 1992, 32 ILM (1993) 1122
Convention for the Conservation of Southern Bluefin Tuna 1993
Protocol to the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Otiier Matters, 1996, 36 ILM (1997) 1
Protocol Concerning Pollution from Land-based Sources and Activities in the Wider Caribbean Region 1999
Conference Acts
Charter of Economic Rights and Duties of States (GA Res. 3201 (S-VI), UN GAOR Supp. 1, P 3, UN Doc. A/9559 (1974)
United Nations Conference on Human Development 1972, 11 ILM, vol 11 (1972) 1416 World Charter forNatiu-e, 1982, 22 ILM, (1983) 455
Montieal Guidelines for the Protection of the Marine Environment for Land-based Sources of Marine Pollution 1985, UNEP/WG, 120/3
United Nations Conference on Environment and Development (UNCED) 1992
Rio Declaration on Environment and Development 1992, 31 ILM (1992) 874
XIV Global Program of Action for the Protection of the Marine Environment from Land- Based Activities, 1995, UNEP (OCA)/LBA/IG, 2/7
Inter-governmental Conference on Protection of the Marine Environment from Land- based Activities 1995
XV TABLE OF CASES
Chorzow Factory Case (Judgment No. 13. PCIJ, Series A, No. 17, September 13th, 1928)
Corfu Channel Case (United Kingdom v Albania) 1949, ICJ Report- 4
Dr. Mohiuddin Farook v Bangladesh (1996) 48 Dhaka Law Reports
El Salvador v Nicaragua (Central American Court of Justice), n American Journal of International Law (1917) 674, 718
Fisheries Case, ICJ Reports (1951), 133
Gabcikovo-Nagymaros Project (Hungary/Slovakia)-1994, ICJ Judgement 25 September 1997; 37 ILM (1998) 162
Icelandic Fisheries Case (UK v Iceland) (1974) ICJ Reports 4; 13 ILM (1974) 1049
Island of Palmas Arbitration (1928) 875
Lake Lanoux (1957) RIAA 281
Mehta H Cv Union of India and Others, Supreme Court decision, dated 22 September 1987 All India Report (AIR) 1988 SC 1037
MOX Plant Case {Ireland v United Kingdom), Disputes Concerning Intemational Movements of Radioactive Materials, Intemational Tribunal for the Law of the Sea, November, 2001
New Jersey v New York, 283 U. S. 342-343 (1931)
North Sea Continental Shelf Cases {Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) (1969) ICJ Reports 3
Rv Forty-Nine Casks of Brandy (1836), 3 Hag. Adm. 257, 289
RvKeyn {the Franconia) (1876), 2 Ex D. 63, 1689
Southern Bluefin Tuna Case (Australia and New Zealand v Japan) 39 ILM 1359 2000.
Trail Smelter Arbitration {United States v Canada), 1941
United States v Canada, 35 American Journal of Intemational Law (1941) at 648 et seq.
Viscount Finally in Duff Development Company, Limited v Government ofKelantan, (1924) AC 797
xvi CHAPTER 1: INTRODUCTION
1.1 PROTECTION OF THE MARINE ENVIRONMENT FROM POLLUTION
As far as we are aware, the earth is probably the only place in the universe that can support human Hfe. Humanity is totally dependent on the earth's environment and its natural support system. Yet, day by day, the various effects of human activities are making the planet progressively less fit to live in. Following World War II, massive industrialisation has caused the depletion of natural resources and the pollution of the earth's air and oceans. Subsequently, arguments for protecting the earth's environment have been put forward, and calls for devising relevant laws and pohcies to achieve these goals have been made.
The marine environment with its vital diversity of marine and estuarine animals and plants is an integral part of the natural and cultural heritage of the world. ^ The world's oceans produce 70% of its oxygen, and 80% of its plant and animal life.2 As an important source of food and inorganic matter, the oceans of the world present an enormous, and practically untapped, reserve of genetic resources for humankind.^ They are an important medium for tourism, mineral exttaction, transportation and recreation.
1 Kelleher G and Kenchington R, Guidelines for Establishing Marine Protected Areas, A Marine
Conservation and Development Report, (1991) at 8.
2 Larson DL, 'Foreword', Ocean Development and International Law, 1982, Vol 11 (1-2) at 2.
3 The resources of the ocean may be classified into tiiree categories: chemical, that is, materials
dissolved in the water; biological, that is, living resources of plant and animal life; and geological,
that is, minerals that are found on or beneath the ocean floor. (Jones EB, Law of the Sea Ocean
Resources, (Southern Methodist University Press, Dallas, 1972) at 71.
- 1- Inshore and offshore waters, the beaches and cliffs, coral reefs, islands, mangrove forests, ports and harbours are of great significance. The waters of the oceans cover
72% of the earth'^ and comprise 95% of the global water supply.^ The world's oceans may, with good reason, be called the earth's lungs.^ The reahty is that the earth is more of a water planet than a land planet.'^ All of these factors indicate the unportance of the protection and preservation of the marine environment for the sake of the earth's environment.
It is important to note that unsustainable utilisation and exploitation of ocean resources, along with the impact of pollutants released into the oceans, are causing the marine environment to deteriorate. This must necessarily be reversed by the prevention and control of activities, which are directly or indirectly causing deterioration of the marine environment.^ Two fundamental issues need to be addressed here:
4 Ross AR, Introduction to Oceanography, (Prentice-Hall Intemational, Inc, 1997) at 324.
5 Merle PA, Deep Sea Mining and the Law of the Sea, (Martinus Nijhoff Publishers, 1983), at 3.
6 Ananichev KV, Environment: Intemational Aspect, (Progress Publishers, 1976) at 124. For details
see Chapter 2.2 infra.
^ Ross AR, supra note 4 at 324.
8 Several stiidies such as, Marine and Coastal Protected Areas: A Guide for Planners and Managers,
published in 1984 by lUCN, Gland, Switzerland; AustiaHa's Marine and Estuarine Areas - A Pohcy
for Protection, published in 1986 by tiie Australian Committee for World Conservation Union
(lUCN); From One Earth to One World - Our Common Future; Environmental Perspective to the
Year 2000, published in 1987 by the World Commission on Environment and Development
(WCED), etc. Kelleher G and Kenchington R, supra note 1 at 4-5 highlighted these issues. 1. Conservation of marine resources. Generally considered to refer to the protection
of Hving organisms from depletion,^ as well as to the:
a) maintenance of ecological process and life support systems;
b) preservation of genetic diversity; and
c) sustainable utilisation of species and ecosystems.^o
2. Prevention and contiol of marine pollution, involving, in effect, the tasks of
a) preservation of biological productivity and the clean surface of the ocean, so that it may freely interact with the atmosphere thereby maintaining the optimum conditions and balance of gases in the atmosphere necessary to all living things on earth;
b) preservation of food resources for the numerous inhabitants of the ocean and those linked to ocean food chains (humanity being the last link).ii
9 Rose G, 'Protection and Conservation of the Marine Environment', in Tsamenyi (et al). The United
Nations Convention on the Law of the Sea: What it Means to Australia and Australian Marine
Industries, Centre for Maritime PoHcy, University of Wollongong, Austiaha, 1996 at 152,
^^ Cyrille de Klemn, 'Living Resources of the Ocean', in Johnston DM (ed), The Environmental Law
of the Sea, (lUCN, Gland, Switzerland, 1981) at 79.
^ ^ Ananichev KV, supra note 6 at 124. Marine pollution is related to 'the unfavourable alteration of
the marine environment.., through direct or indirect effects of changes in energy patterns, radiation
levels, chemical and physical construction and distribution, abundance, and quality of organisms.
(Depai-ttnent of Coromerce, USA, National Oceanic and Atinospheric Administration (NOAA),
Report to the US Congress on Ocean Dumping aitd Other Man-Induced Changes in Ocean
Ecosystems, March 1974, at 6 (emph add). For further defmition on marine pollution see Chapter
2.5 infra.
-3- Earlier discussions have revealed that in order to ensure the protection of the marine environment and to improve the health of oceans, conservation and management of marine resources, in conjunction with the prevention and control of marine pollution are significantly interlinked and important. However, 'protection of the marine environment' is generally considered to refer to 'protection from pollution'.'2 As one of the most significant threats to marine life,i3 pollution affects the health of the living resources in the oceans. Therefore, confrol and prevention of marine pollution is a prerequisite for the conservation of marine species and ecosystems, i'* Control of marine pollution can, therefore, also be a safeguard for the sustainable protection of the marine environment.
It is important to note that, although a variety of sources of pollution affect the marine environment, a number of studies have indicated that land-based sources of marine pollution (LBSMP) is the dominant threat. ^^ Various pollutants of this nature are now threatening the marine environment significantly. Some of these are set out in Chapter
17 of Agenda 21 which states:
The contaminants that pose the greatest threat to the marine environment are, in variable order of importance, and depending on differing national or regional situations, sewage, nutrients, synthetic organic compounds, sediments, litter and plastics, metals, radionuchdes, oil/hydrocarbon and polycycHc aromatic hydrocarbons (PAH), Many of the polluting substances originating from land- based sources are of particular concern to the marine environment since they
^2 Rose G, i'M/jra note 9 at 152.
^3 Stevenson JR and Oxman BH, 'The Future of the UNCLOS', American Journal Of International
Law, 1994, Vol 88, No 3, at 479.
14 Gouilloud MR, 'Prevention and Control of Marine Pollution', in Johnston DM supra note 10 at 193.
15 For details including the defmition of LBSMP, see Chapter 2.8 infra. exhibit at the same time, toxicity, persistence and bioaccumulation in the food chain. ^^
1.2 IMPORTANCE OF LAND-BASED SOURCES OF MARINE POLLUTION (LBSMP) CONTROL
The task of protecting the marine envfromnent from the threat of LBSMP is an emerging issue of intemational concem. The achievement of this broad objective requires efficient management, comprehensive regulation and cooperation among states.
But Agreements before the 1900s did not address any pollution or ecological issues.
There was no development in intemational environmental law relating to marine pollution issues even in the first half of the 20* century. The only legal policies were concerned with the conservation of marine birds and of fisheries.'"' These early agreements included: The Convention for the Protection of Birds Useful to Agriculture
(1902),'^ The Convention for the Protection of Migratory Birds in the United States and
Canada (1916),'^ and The Treaty for the Preservation and Protection of Fur Seals
(1911).20
1^ Chapter 17, para 17.18 of Agenda 21. The United Nations Conference on Environment and
Development (UNCED), more famiUarly known as the 'Earth Summit', was held in Rio de Janeiro,
3-14 June 1992. In order to protect the global environment, Agenda 21 was adopted in this
Conference. Chapter 17 of Agenda 21 entitied 'Protection of the Oceans, all Kinds of Seas,
Including Enclosed and Semi-enclosed Seas, and Coastal Areas and the Protection, Rational Use
and Development of Their Living Resources' is devoted to oceans environment. See Chapter 5.4.3,
infra.
1^ See Cyrille de Klemn, 'Livmg Resources of the Ocean', in Johnston DM (ed), supra note 10 at 92-
93.
18 March 19, 1902, 102 BFSP 969 (entered into force 11 May 1907).
19 August 16, 1916, US-Great Britam, 37 Stat 1538. Prior to 1954, there was no convention to combat marine pollution.21 In 1954, a multilateral convention on oil pollution from ships was adopted. However, no emphasis was placed on the importance of LBSMP.22 in fact, only from the 1960s did marine environment protection from land-based sources (LBS) begin to emerge as an issue among countiies. In this period, the Paris Convention relating to land-based sources^s was negotiated and other multilateral marine pollution contiol conventions, including the Helsmki Convention, adopted provisions for LBSMP.24
With regard to the protection of the marine environment, the United Nations Convention on the Law of the Sea, 1982,^^ (hereinafter LOSC) was an important improvement on previous laws.26 The LOSC contains various provisions to regulate and manage the marine environment. It made a significant contribution to the regulation of several regimes and provided a framework for a more orderly and rational conduct of historic
20 February 7, 1911, US-Great Britain, 37 Stat 1538.
21 See Chapter 5, infra.
22 See Chapter 5, infra.
23 The Paris Convention for the Prevention of the Marine Environment from Land-based Sources (13
ILM 1974).
24 The Convention on the Protection of the Marine Environment of the Baltic Sea Area, (13 ILM 1974,
546).
25 United Nations Convention on the Law of the Sea, adopted by the Third United Nations Conference
on the Law of the Sea (UNCLOS III). Montago Bay, 10 December 1982. 21 ILM 1261, 1833
UNTS 3 and 1835 UNTS 261 (Final Act) (in force 16 November 1994).
26 Kindt JW, Marine Pollution and The Law of the Sea, (Williams Hein and Co Inc, 1986) at 708. and modem maritime activities.27 It is the most comprehensive mtemational agreement to ever deal with marine environmental protection.28 Part XII of the LOSC, in particular, provides a comprehensive, progressive, and hoHstic set of general obhgations to the marine environment, unmatched in any other existing mtemational agreement.29
It addresses all sources of marine pollution, along with the specific duties of states with respect to these sources of pollution, and establishes a framework for the conservation and development of marine living resources.^o By addressing those issues, the LOSC has become a fundamental instrument of marine environmental law. At the United
Nations Conference on Environment and Development (UNCED, 1992) the United
Nations Secretary General stated that:
...itprovides a model for the evolution of iatemational law and its incorporation of several newly developed concepts and principles, such as the prevention of trans- boundary pollution; assessment; habitat protection, and ecosystem considerations; an integrated approach to various sources of pollution; and contingency planning against pollution emergencies.-''
27 For the significance of LOSC see Bimie P,' The Law of the Sea and the United Nations Conference
on Environment and Development', Ocean Yearbook, 1993, No 10.
28 Card JC, 'Implementing the United Nations Convention on the Law of the Sea: A Coastguard
Perspective', The Georgetown Intemational Environmental Law Review, 1995, Vol 7 at 726.
29 Chamey JI, 'The Marine Environment and 1982 United Nations Convention on the Law of the Sea',
International Lawyer, 1994, Vol 28, No 4, at 888.
30 Chamey JI, ' The Protection of Marine Environment by the 1982 United Nations Convention on the
Law of the Sea', supra note 28 at 734-35.
31 Quoted from Chamey JI, supra note 29 at 882.
-7- Chapter 17, Agenda 21,^^ of UNCED 1992, considered the LOSC as a necessary
foundation of intemational environmental law. According to Agenda 21 the LOSC
creates the basis for prompting the development of regional organisations, and utilising
existing intemational organisations^^ for marine environmental protection.
The LOSC came into force in 1994 and has substantially advanced the protection of
marine environment. At present the LOSC is the only global tieaty with specific
provisions on LBSMP. However, in spite of making definite progress towards the
regulation of the marine environment, it has a number of weaknesses. It is merely a bare
framework for the management and protection of the marine environment from LBS.
The Convention does not go into detail, set intemational standards or resolve relevant
questions in relation to marine environmental protection from LBS. For most countries,
a broad integrated approach to the prevention and contiol of marine pollution is a new
endeavour, which is not effectively covered by the LOSC.^^ Nowhere in the
Convention are there specific and concrete provisions for the actual reduction in current
pollution levels.35
The LOSC has failed to achieve its objectives of protecting the marine environment because it does not provide a comprehensive management system of intemational
contiol of LBSMP. Comprehensive checklists of factors were adopted under the
32 Agenda 21, supra note 16.
33 Juda, IMCO and tiie Regulation of Ocean Pollution from Ships, Intemational and Comparative Law
Quarterly, 1977, Vol 26 at 558.
34 Cyrille de Klemn, supra note 10 at 17.
35 Torrens DL, 'Protection of the Marine Environment in Intemational La^^': Towards an Effective
Regime of the Law of the Sea', Queens Law Journal, 1994, Vol 19, No 2 at 625. Montreal Guidelines for the Protection of the Marine Envfronment from LBS,36 but these Guidelines are not a legal framework to protect the marine envfronment from
LBSMP.
Undoubtedly, Agenda 21 and the Global Programme of Action for the Protection of the
Marine Environment from Land-based Sources (GPA) 1995,37 represented unportant advances over prior global arrangements for LBSMP control. Governing all aspects of the various uses of the oceans and its resources, they contain many new and innovative concepts and ideas, including integrated coastal zone management (ICZM), precautionary principle, and polluter pays principle, that are likely to improve protection of the marine environment from LBSMP. They have established a non-legal policy framework for the protection of the marine environment from LBSMP, and have attempted to facilitate intemational and regional cooperation to achieve that goal. The policy framework adopted provided for the promotion of equitable and efficient utilisation of resources, the conservation of hving resources, and integrated and sustainable development.
The opportunity for governments to broadly examine the specific issues and needs, priorities and capabilities of regional arrangements promoted by Agenda 21 and the
GPA has advanced the LBSMP contiol efforts and facilitated the development of regimes to control marine pollution from land-based sources. The question remains, however, as to how far the present regimes have gone towards the effective protection of the marine environment from LBS. A survey of the literature reveals that the provisions of the present regimes are inadequate in many respects, including those
36 UNEPAVG.120/3(PartIV).
37 UNEP (OCA)/LBA/IG, 2/7. See Chapter 5.4.5, infra. -9- relating to economic instruments, liability, and dispute resolutions for LBSMP contiol.
These instmments are also administered inadequately in many parts of the world's oceans.
1.3 RATIONALE OF THE RESEARCH
In relation to the main theme of this thesis, 'the effective contiol of LBSMP', in many respects, the existing literature is unsatisfactory. It does not comprehensively cover the
issue of the adequacy of the present regime of LBSMP control. It lacks detailed
discussions on liability for LBSMP, provisions for disputes settlement, and capacity building. Although dated. Men Quing-nan^^ is the best available reference on LBSMP.
However, it does not cover recent developments but rather examines, very briefly, some
of the important aspects of LBSMP control. Available manuals on the environmental
law of the sea devote only a few paragraphs or a few pages to discussion of LBSMP.
These shortcomings indicate that much more analytical work needs to be done
concerning legal instruments to control LBSMP. The principal purpose of this study is
to address a gap in the hterature of LBSMP contiol concerning the effectiveness of legal
regime design.
1.4 RESEARCH OBJECTIVES
This thesis attempts to identify the major sources of land-based marine pollution that contribute to the harm of the marine environment. It investigates the adequacy and inadequacy of present legal regimes for LBSMP, the causes of such inadequacies, and
38 Men Quing-nan, Land-based Marine Pollution: International Law and Development, (Graham and
Trotman/Martinus Nijhoff Publishers, London, Boston, 1987).
- 10-
• exploring the reasons for inadequacies in the current laws; and
• suggesting an approach to solutions of the problem.
1.5 RESEARCH METHODOLOGY
Apphcation and shortcomings of the present regimes of LBSMP control have been considered fundamental for this study. The investigation process is started witii tiie examination of the nature of the problem of LBSMP and specific issues that are the obstacles to the solutions of these problems. Intemational management principles have been used as criteria to measure the control regimes of LBSMP. In terms of strengths and prospects, this study incorporates successful regimes of LBSMP confrol. It also adopts a case study to show the deficiencies of the present regimes and concludes with a need for enforceable cooperative arrangement.
This research has used primary uiformation obtained from United Nations Environment
Programme (UNEP), and the Global Program of Action - GPA Coordination Office in the Netherlands. It also uses secondary materials emanating from the United Nations
Organization, intemational agencies, research organisations and pubhcations by individual researchers. The UNEP and the GPA Coordination office have received special importance because they have been engaged in undertaking and coordinating various plans and programs, and providing institutional and financial supports for implementation. In this way, they are established as the main instrumental organs in ocean management as well as LBSMP contiol within the United Nations system.
In order to review the current status of intemational legal regimes of LBSMP the thesis:
-12 gathers and examines relevant primary materials on LBSMP including hard and soft laws.39 In this context, intemational and regional frameworks under conventions and instiimients on LBSMP contiol are highlighted and discussed.
• reassesses and analyses data in reports concerning LBSMP. These uiclude United
Nations (UN) documents and reports, reports and drafts of UNEP, UNEP news
letters, operational sfrategies of the Global Environment Facility (GEF), reports and
studies of the Joint Group of Experts of the Scientific Aspect of Marine Pollution
(GESAMP), country reports on LBSMP contiol, and conference reports.
• reviews secondary literature on LBSMP including books, journal articles, case laws
and Internet sites relevant to LBSMP control.
All materials are examined and investigated with a view to analysing gaps in the study of LBSMP confrol regimes and to evaluate the effectiveness of LBSMP control regimes in practical terms.
In regard to analysing gaps in LBSMP contiol regimes this study uses intemational management principles as a standard for comparison as well as a comparative approach.
39 Soft laws are non-binding declarations and guidelines, which may serve as 'quasi legal guide post',
(Bmbaker D, Marine Pollution and International Law, Belhaven Press: London and Florida, 1993)
at 287, Soft law instmments are a relatively recent phenomenon in respect of the growing body of
intemational agreements between states. They offer strategies, impose obhgations in an imprecise
and flexible way and are shaped by normative guidelines rather than constrained by precise mles
(Abbott KW and Snidal D, 'Hard and Soft Law in Intemational Governance', Intemational
Organization, 2000, Vol 53, No 3 at 443). They are purely political arrangements in which
legahsation is largely absent {ibid at 422).
- 13 The former includes the investigation of hitegrated Coastal Zone Management (ICZM),
Sustamable Development, Environmental Impact Assessment (EIA), polluter pays principles, precautionary principles and cleaner production. A range of sfrategies and programs of these management principles, such as integrated management technique,
anticipatory measure, utilise clean technology for LBSMP management, has been
studied. These are studied with a view to show how these management principles have
substantially contributed towards management techniques and, therefore, towards the
confrol of LBSMP in a sustainable, integrated and cost effective way.
To understand the present arrangements and to evaluate and measure the extent to which
the benchmarks have been reflected and applied in hard law and soft law, instraments of
intemational frameworks and regional frameworks are analysed and examined.
The comparative approach involves a comparison of regional instruments, their
complementary measures to control LBSMP and identification of successful regimes of
LBSMP contiol. For example, legal and institutional developments in the North-East
Atlantic, Baltic and Mediterranean Seas regions are studied and evaluated in this
respect.
To evaluate the effectiveness of this contiol regime in practice the research has adopted
a case study approach. More specifically this study focuses on the Bay of Bengal Sub-
Region in South Asia. Ultimately, three key aspects of LBSMP contiol are identified in
the countries of Bangladesh and India. These are the legal frameworks of LBSMP
control, marine environmental conditions and socio-economic obstacles in controlling
LBSMP. Based on these key aspects an examination is made on the performance of
LBSMP control in aforementioned Sub-region. The view of this examination is to show
- 14- the insufficient apphcation of intemational and regional arrangements and minimal application of intemational management principles due to associated problems and issues. This case example has been used to explain that, since the present mtemational and regional arrangements are not up to the mark they need to be promoted and reinforced. A workable cooperative arrangement between regional and intemational bodies could facilitate the development of LBSMP confrol regimes and, as a way forward, could lead to achieve the purpose.
An original contribution in the area of intemational law related to marine environmental protection from land-based sources is undertaken. On the basis of the above analysis and examination it is proposed that an enhanced cooperation is needed to control
LBSMP. In this respect, a comprehensive regime of interstate and intemational cooperation, may be the best possible way to effectively combat LBSMP. This intemational cooperative regime will be based on interlocking regional and intemational cooperation, and will be enforceable for regional and intemational implementation.
1.6 CHAPTERS OVERVIEW
Chapter Two identifies problems of LBSMP and describes various types of land-based pollutants, then routes, and their impact on the marine environment. It develops a conceptual framework on contaminants, pollution, and marine pollution. All these descriptions explore the diverse patiiways of LBSMP which are the domuiant threats to the marine and coastal environment. Usually, LBSMP has a national source and their impacts are mostly local inshore. However, they also have limited trans-boundary impacts in coastal waters and lesser cumulative impacts in oceanic waters. Cumulative impacts are the sufficient evidence of transportation of trans-boundary or global
-15- impacts. Due to the nature and effects of LBSMP, the necessity of a global regime still needs to be considered, despite local action and solutions being the priority. This global regime would be based on effective cooperative arrangement. Enhancing intemational sharing of resources and commitments, this global arrangement could conttibute to overcome specific management problems that stand as obstacles and enhance national, regional and intemational contiol of LBSMP.
Chapter Three relates to obstacles of controlling LBSMP. In this respect, along with the presentation of general problems, this chapter identifies and deeply examines economic and political problems of LBSMP control. From an economic perspective, this chapter discusses the impacts of various perceptions of the economic costs and environmental costs of LBSMP confrol. Also, in terms of political implications, it describes how territorial sovereignty plays a role in LBSMP contiol and explains why
LBSMP confrol has to be planned and implemented internationally to deal with the emerging environmental crisis within this area. Since these problems and issues are confronting LBSMP control, innovative management responses to the solutions of these problems have been requfred.
Chapter Four commences with a descriptive account of management principles of
LBSMP control. It describes the role and the prospects of some intemational management principles relevant to LBSMP contiol. It includes a review of sustainable development, integrated coastal zone management (ICZM), environmental impact assessment (EIA), precautionary principle, polluter pays principle and cleaner production, and implementation systems. They have been used as benchmarks for assessing the present regimes of LBSMP, since these principles provide various strategies and programs and practices. Although they have some shortcomings from the point of view of their implementation, because of their importance they have been incorporated in various legal instruments and have developed the legal regimes of
LBSMP confrol.
Chapter Five concentrates on the study of LBSMP contiol in a global legal framework and evaluates its ability to meet the regime design standards. Taking into account customary intemational law (CIL), it looks at the development of LBSMP contiol regimes and describes and analyses relevant provisions of the LOSC, the Monfreal
Guideline (1985), Agenda 21 (1992), and GPA (1995). These hard and soft law instruments are evaluated to understand the extent to which the benchmarks have been reflected and applied in intemational frameworks of LBSMP control. Since intemational arrangements are not fiilly satisfactory, attention has been concentiated on regional arrangements to complement the contiol measures of LBSMP.
Chapter Six provides an examination of LBSMP confrol within regional legal frameworks. In line witii the 1974 and 1992 Paris Convention, the 1974 and 1992
Helsinki Convention, the Intemational North Sea Conferences (INSC) and the European
Economic Community (EEC) Directives, this chapter surveys and analyses the United
Nations Environment Programme's (UNEP) activities in relation to LBSMP contiol under its Regional Seas Programme and assesses its importance and apphcation for
LBSMP contiol. All these have been surveyed to understand the extent to which the benchmarks have been reflected and apphed in regional frameworks of LBSMP confrol.
In terms of legal and institutional arrangements, operational measures and management instruments a relative success has been achieved under regional frameworks. However, this success is applicable to some specific regions where developed countries that are not in economic transition, such as the North East Atlantic region, are Parties. It also
- 17- applies to where developed, developing, or countries in economic transition, such as the
Mediterranean region, are the Parties, There is a significant shortcoming m those regions where only developing countries are the Parties in this respect. Many of these regions lack an LBSMP protocol and even a general legal framework to confrol
LBSMP.
Chapter Seven is a detailed examination of problems and prospects of LBSMP confrol within the Bay of Bengal Sub-region of South Asia. This is a case study to demonsfrate the inadquecy of current global arrangements for LBSMP control. It describes the environmental conditions of this Sub-region, the legal and institutional arrangements and mechanisms on LBSMP control, cooperative activities and various obstacles to the implementation of the legal regime, to show the reasons the countries of this region have failed to grapple meaningfiilly with the LBSMP problem. It highlights the practical obstacles in filling and implementing the existing legal framework.
In conclusion. Chapter Eight evaluates the adequacy of the present regimes of LBSMP confrol and proposes a new model based on 'cooperation' through the interlocking of regional and intemational arrangements. In this context, the discussion first focuses on the foundation of effective cooperation to the control of LBSMP, then follows with perceived inadequacies of the present regimes in relation to cooperation, environmental liability and settlement of environmental disagreements, as well as, public participation, fimding, technology transfer and pohtics. Drawing on the foundation of effective cooperation, a model for LBSMP control at regional and intemational levels is then proposed, elaborating and realistically effectuating the objectives of LBSMP control. CHAPTER 2: SOURCES AND EFFECTS OF LBSMP
2.1 INTRODUCTION
Land-based sources of marine pollution have become the major contributor of pollution
and contamination in the marine environment. Entering the ocean waters via several pathways, they are particularly critical in the coastal areas and coastal waters^ where
they are most likely to affect marine living resources, and where the closest human
contact with seawaters takes place.2 LBSMP's severe environmental consequences can
be demonstrated in a number of areas including public health, food resom^ces, marine
species integrity, and health and survival. LBSMP also impacts on recreation and
aesthetic resources.
The objective of Chapter Two is to provide tiie reader with an understanding of the
physical dimensions of LBSMP problems. It describes the sources of LBSMP and
Gouilloud MR, 'Land-based Marine Pollution', in Johnston DM (ed), The Environmental Law of the
Sea, (Switzerland: Gland, 1981) at 197.
UNEP, 'Pollution from Land-based Sources', Environmental Policy and Law, (1983) at 88-91. See
also Neuman LD, 'The UNEP Regional Seas Program', Marine Technology Society Journal, Vol
19, 1st quarter 1985, 46-52. In general the coastal zone mcludes coastal waters and all areas to the
landward side of the coastal waters [(Kay and Alder J, Coastal Planning and Management, (E and
FN Spon, 1999) at 7]. However, the coastal zone can be more closely defined as '[t]he land and
waters extending inland for one kilometie from the high water mark on the foreshore and extending
seaward to the 30 metie depth contour line and also including the waters, beds, and banks of all
rivers, esmaries, inlets, creeks, bays, or lakes subject to the ebb and flow of the tide'. [Beer T,
Environmental Oceanography, (CRC Press, New York, London, Tokyo, 2nd ed, 1996) at 4].
19 purports also to describe the effects of LBSMP with a view to demonstrating the need for the design of effective solutions.
This chapter begins with a defmition of the subject and scope of the survey and then reviews the literature. In this regard the chapter defmes, describes and analyses some of the issues which are most relevant to LBSMP, including pollution and contammation, sources and pathways of marine pollution, and various types of pollutants and then impact. In this regard the chapter distinguishes between contamination and pollution and fiirther categorises marine pollution. The sources of pollution and pathways of pollution are studied next. The chapter then moves on to present the key pollutants of
LBSMP. The various types of activities and various types of contaminants of LBSMP, and the extent to which they are found in sea-waters, along with the effects of these pollutants on the marine and coastal environment, are analysed and evaluated.
In fine with the objective it is concluded that although most LBSMP is national and their impacts are local inshore they have limited frans-boimdary impacts in coastal waters and lesser cumulative impacts in sea-waters. Therefore, although local action and solutions are the priority, there is a necessity of a global regune to effectively control
LBSMP and to solve the management problems addressed in Chapter Three.
2.2 CONTROL OF MARINE POLLUTION
As noted in Chapter One, protection of the marine environment requires prevention and control of marine pollution. Control of marine pollution is an issue of great public
20- concem,3 as chemical and biological pollution is daily damagmg the oceans at a fiightening rate.^ As soon as pollutants infilfrate seawaters they change the quahty, thereby affecting the organisms that Hve there.^ These pollutants also affect other beneficial uses of marine and estuaries waters.^ Some pollutants affect the marine and coastal environment by contaminating seawaters, and some by polluting these waters.
The next section is taken up in studying the difference between contamination and pollution.
2.3 CONTAMINATION AND POLLUTION DISTINGUISHED
The expression 'contamination' is generally used to describe a condition where a concenfration of chemicals or other potentially hazardous substances exceeds usual background levels.'^ The concept of pollution, on the other hand, carries a fimdamental
3 Marine pollution raiiks highest of marine enviromnental problems in public opinion surveys, with
over 90 percent of respondents stating that it is a serious or very serious problem. Grant A and
Jickells T, 'Marine and Estuarine Pollution', in O'Riordan T, Environmental Science for
Environmental Management, (Longman Scientific and Technical, Essex, England, 1995), at 265.
4 Lenssen N, 'The Ocean Blues', in Wells Jr RN, (ed), Law, Values and the Environment, (The
Scarecrow Press, Inc: London, 1996) at 69,
5 Ketchum BH, ' Man's Resources in the Marine Environment', in Olson TA (et al). Pollution and
Marine Ecology, (Inter-science Publishers, 1967) at 3,
^ Such as swimming, surfmg sun-bathing, beach picnicking, boating and navigation, industrial water
supply and municipal water supply.
7 Shoebridge L, ' When Science Meets Law: Contractual Aspects of Contaminated Site Cleanups', in
Rowe GC (et al). Contaminated Sites in Australia, (Allen and Unwin Pty Ltd., 1993) at 153.
-21- imphcation of impaired use, or potentially impafred use.^ The United Nations Joint
Group of Experts of Scientific Aspects of Marine Pollution (Subsequently GESAMP),
1982 states:
Contamination is the presence of elevated concenfrations of substances in water, sediments and organisms of amenities.^
'Pollution' implies the intioduction to the environment, as a result of human activities, of materials and/or energy which alter its state and/or function, and which impairs its utility in respect of specific human activities and interests. It refers essentially to a process by which a resource (natural or man made) is rendered unfit for beneficial use due to physical, chemical or biological factors. ^^^ It relates to the harmful effects or damage caused by the introduction of substances or energy into the envfronment.^'
The damaging effect of 'contamination' is 'pollution'. In terms of detecting pollution, samples of the biota are collected from a large number of places, and concenfrations of contaminants are measured. The biotic data is then analysed to see if there are any signs of deleterious effects in any sites, and if so, whether they are correlated with
^ Shoebridge L, ibid at 154. The essential features of pollution are that the condition of the water be
altered in such a way that it is made noxious, poisonous, hamnful to humans and other biota;
obnoxious or unduly offensive to the sense of humans; or, has otherwise been rendered detrimental
or potentially detrimental to the beneficial use (ibid at 153) of the water,
9 Joint Group of Experts on the Scientific Aspect of Marine Pollution (GESAMP), The Review of the
Health of Oceans, Reports and Stadies No 15, Paris: UNESCO, 1982.
10 Rosencranz A (et al). Environmental Law and Policy in India, (Tripathi, 1992) at 14.
^ 1 United Nations, The Sea: Prevention and Control of Marine Pollution, Report of the Secretary
General, 1971. For details see defmitions of marine pollution in this chapter.
-22- contaminant concentration. ^2 Therefore, the infroduction of a substance into the marine environment should at fust be termed 'contamination', then, when deleterious effects or damages are detected, it can be called 'pollution'.i3 Pollution involves contamination, however, the converse is not necessarily tme.
2.4 THE MYTH OF THE ENDLESS WASTE SINK
Because of the vastness of the oceans, there was a widespread acceptance of the myth that 'the world's oceans have infinite capacities for assimilation, and could be used as a kind of huge receptacle for virtually all wastes'.i^ However, it has now been proven that the ocean's assimilative capacity is lunited. Scientifically and technologically, there is ample evidence that the oceans cannot provide an infinite sink for wastes and sustain the level of resource use and coastal zone development that was originally assumed. For example, according to the GESAMP 1990 Report, the oceans' assimilative capacity is finite and quantifiable, only having the ability to accommodate a particular activity, or rate of input, without unacceptable impact.^^ Pollution occurs when this rate of inputs exceeds the natural assimilative capacity of the oceans.
12 Grant A and Jickells T, 'Marine and Estuarine Pollution' supra note 3 at 267-67.
13 Wilson JG, The Biology of Estuarine Management, (Croom Hehn Ltd: London, 1988) at 70-73.
14 Waldichuk M, Global Marine Pollution: An Overview, Inter-governmental Oceanographic
Commission (IOC) Technical Series, (UNESCO, 1977) at 9. Smce time before recorded human
history the seas have seemed vast and their capacities infmite in relation to human activities, and
they have long been a source of myth and mystery.
15 United Nations Environmental Program (1990). GESAMP, The State of the Marine Environment,
GESAMP Reports and Stiidies No 39, UNEP, Nairobi, at 82. GESAMP was set up in 1969 as a UN
iateragency advisory body (without independent authority) to undertake studies on marine
-23- 2.5 DEFINING MARINE POLLUTION
The GESAMP took the first step towards the formulation of a definition of marine
pollution in a legal sense when it defined marine pollution as:
The introduction by man, directiy or indirectly, of substances into the marine environment (including estuaries) resultmg in such deleterious effects as harm to livmg resources, hazards to human health, hindrance to marine activities including fishing, impairment of quaUty for use of seawater and reduction of amenities. "^
The same defmition was utihsed by the UNESCO's Intergovernmental Oceanographic
Commission (IOC). This definition of marine pollution received fiirther attention from
the United Nations Conference on Human Development in 1972 (hereinafter called
Stockholm Conference). The Conference adopted the definition but added the word
'energy':
The introduction by man, directly or indirectly, of substances or energy into the marine environment (including estuaries), resulting in such deleterious effects as harm to living resoiu-ces, hazards to human health, hindrance to marine activities, including fishing, impairment of quahty for the use of seawater, and reduction of amenities. 17
Before the final adoption of a specific Article on the defmition of marine pollution, however, the classification tmderwent a number of changes in several sessions of the
pollutants and to recommend approaches to their control. The initial members of the GESAMP
were IMCO (now IMO), FAO, UNESCO, and WMO. Later on lAEO, WHO, UNEP and the UN
itself became members of this program.
16 GESAMP, Report of the First Session, London, 17-21 March, 1969, UN Doc GESAMP Fll, 1969
at 5.
17 Pontaviae ED, ' Pollution', in Bouchez LJ and Kaijen L (eds), The Future of the Law of the Sea,
(Martinus Nijhoff Publishers, 1973) at 104.
-24- United Nations Conference on the Law of the Sea. Countries, for example, such as
Belgium, proposed the use of the term, 'waste' without offering an explanation or meaning.i8 xhe Conference subsequently adopted the GESAMP and UNESCO-IOC definitions in substantive terms, but refined them by including reference to the
'likelihood' of deleterious effects, usmg the wider term of 'marine life' and referring to
'other legitimate uses of the sea'. The LOSC's definition of marine pollution is as follows:
Pollution of the marine environment' means the infroduction by man, directly or, indirectly, 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 Hfe, hazards to human health, hindrance to marine activities including fishing and other legitimate uses of the sea, impahment of quality for use of sea water, and reduction of amenities.'^
The UNEP Guidelines on Protection of the Marine Envfronment Against Pollution from
Land-based Sources 1985 (hereafter Montreal Guidelines) follow the LOSC definition.
In addition to global conventions or instruments, a number of regional conventions also define marine pollution in a similar manner. These include the Convention on the
Protection of the Marine Environment of the Baltic Sea Area (replaced by the Baltic
Convention, 1992), the Barcelona Convention for the Protection of the Mediterranean
Sea Against Pollution (1976), iht Kuwait Convention, the Lima Convention, the Jeddah
18 For details see Tomczak M, 'Defining Marine Pollution: A Comparison of Defmitions Used by
Intemational Conventions', Marine Policy, 1984, Vol 8, at 320-321.
19 United Nations Convention on the Law of the Sea, 1982, UN Doc A/CONF 62/122. (Part 1,
Infroduction, Art 1(4) of LOSC).
-25- Convention, the Carta gena Convention, the Nairobi Convention, the Noumea
Convention and, the Bucharest Convention (1992).20
Generally, these definitions have provided the descriptions of nature and effects of marine pollution that could be used as a basis of understanding the unportance of the marine environment and its protection from pollution.
2.6 SOURCES OF POLLUTION
The word 'source' originally refers to the point or place where a stieam or a river begins.2i Be that as it may, in a broader sense 'source' is the origin from where anything comes, or is obtained. As far as pollution is concemed, 'sources' can refer to the places from which harmful substances that cause pollution are generated, and sometimes to human activities from which harmfiil substances are infroduced to the environment.22
20 For example, Article 2 of the Convention on the Protection of the Marine Envirormient of the Baltic
Sea Area states:
'Pollution' means infroduction, by man, directiy or mdirectly, of substances, or energy, mto the sea,
including estuaries, which are liable to create hazards to human health, to harm living resources and
marine ecosystems, to cause hindrance to legitimate uses of the sea including fishing, to impair the
quality for use of the sea water, and to lead to a reduction of amenities'. For details see. Sands PH,
Marine Environment Law in the United Nations Programme, (Tycooly Pubhshing, London and
New York, 1988). See also Chapter 6 infra.
21 Gove P, Websters Third New International Dictionary, Springfield, Mass, G&C Merriam Company,
1993.
22 Meng Quing-nan, Land-based Marine Pollution: Intemational Law and Development, (Graham and
Trofrnan/ Martinus Nijohoff Publishers, London, Boston, 1987) at 18.
-26- 2.7 LAND BASED DEFINED
The world's oceans are being polluted and contaminated from land-based sources
(LBS), vessel-based sources, waste dumping at sea, and offshore oil and mineral exploitation activities. However, several studies on the sources of pollutants, show the major contributory factor to marine pollution is from land-based sources. According to a 1990 global assessment on the state of marine environment, LBSMP constitiites 77 percent of marine pollution.23 Consistent with statistics compiled by the GESAMP in
1993, major sources of marine pollution consisted of 44 percent land-based discharge,
33 percent atmospheric inputs from land, 12 percent marine transport, 10 percent dumping and one percent from oil exploration and production.24
Intemational instruments have defined the concept of LBSMP, along with pollution and marine pollution. The Monfreal Guidelines, for example, define LBS as follows:
Land-based sources means:
(i) Municipal, indusfrial or agricultural sources, both fixed and mobile, on land, discharges from which reach the marine environment, in particular: From the coast, including from outfalls discharging directly into the marine environment and through run-off; and through rivers, canals or other water-courses, including imderground water courses; and via the atmosphere.
23 GESAMP, The State of tiie Marine Environment, GESAMP Report and Stiidies No 39, 1990,
UNEP, Nairobi. See also Kimball L, ' The United Nations Convention on the Law of the Sea and
Marine Environmental Protection', Georgetown Intemational Environmental Law Review, 1995,
Vol 7 at 745.
24 Gold E, Card Handbook on Marine Pollution, (Gard, 1997), at 288.
-27- (ii) Sources of marine pollution from activities conducted on offshore fixed or mobile facilities within the limits of national jiirisdiction, save to the extent that these sources are governed by appropriate intemational agreements.25
This definition has provided a basis of understanding as to the nature and origin of
LBSMP. These defmitions have usefiilness for the protection of the marine environment from LBS.
2.8 PATHWAYS OF POLLUTION
'Pathways of pollutants' are the channels for the escape, or passage of pollutants used as a route of travel or transport from land to sea. Pathways of pollution may be continuous or intermittent. Thy are numerous and diverse.26 Pollutants may reach the oceans through coastal disposal, through rivers, canals and other watercourses, through run-off from land, through the atmosphere, through the food chain and from outfall discharges.27 All land-based materials washed by rainfall and entering rivers and sfreams may become inputs to the sea and may contaminate its water.28 Collectively, they may form a very large contribution to marine pollution.29
25 UNEP, 'Protection of the Marine Environment Against Pollution from Land-based Sources',
Environmental Policy and Law, (1985), Vol 14, No 2-3, at 77. UNEPAVG 120/3 (part IV).
26 Kuwabara S, The Legal Regime of the Protection of the Mediterranean against Pollution from
Land-based Sources, (Tycooly hitemational Publishing Limited Dublin, 1984) at 72.
27 Annual Review of Ocean Affairs, 1993, Law and Policy Main Documents, at 250-253. See also,
United Nations Envfronmental Program (1990). GESAMP.- The State of the Marine Environment.
GESAMP Reports and Studies No 39, UNEP, Nairobi.
28 Contaminants are manifested in die oceans in tiiree ways: the water column may become
contaminated by hydrocarbon, nutrients and metal particles; the pollutants may sink to the ocean
floor and contaminate sediments; and finally, marine plants and animals can ingest pollutants.
-28- Usually, LBSMP has a national source. That is, LBSMP originates from an area under the sovereignty of an individual State.^o Pollutants differ in their concentration and effects from coastal waters to oceanic waters. In general, however, it is coastal waters that are the most polluted, while the open ocean is relatively clean.^^ By the continuous moving of waters, pollutants are often carried far from then point of entiy into the ocean waters with widespread effects.32 Generally, it is difficult to follow tiie pathways from the sea back to their sources and thus find the causes of LBSMP. However, an exception in this respect can be made for immediately adjacent or opposite states. The danger posed to Ireland by increasing levels of radiation in the Irish Sea is an example in this respect. This is happening through the operation of a reprocessing plant to make
Mixed Oxide (MOX) fuel from plutonium and uranium oxides from the Sellafield site, which is located in the North East of England and on the coast of Irish Sea. According to the report on 'Possible Toxic Effects from the Nuclear Reprocessing Plants at
Sellafield' (August 2001), the reprocessing of spent nuclear fiiel at Sellafield has led to the largest man-made release of radioactivity into the environment anywhere in the
(Brunton N, 'HoUdays by the Sewer: Coastal Water Pollution and Ecological Sustainabihty',
National Environmental Law Association Conference, 1996, para 2.1.3.)
29 Clark RB, Marine Pollution, (Clarendon Press, 4th ed, 1997) at 4.
30 Zajacek R, 'The Development of Measures to Protect tiie Marine Environment from Land-based
Pollution', James Cook University Law Review, 1996, Vol 3 at 70.
31 Churchill RR and Lowe AV, The Law of the Sea, (Manchester University Press, 3"* ed, 1999) at
332.
32 Kenchington R, 'Protecting and Managing tiie Offshore Estate', (Seminar Paper, Royal Austialian
Navy Maritime Studies Program, May, 1994) at 2.
-29- world.33 It was estimated by scientific assessments that between 250 and 500 kilograms of plutonium from Sellafield are now absorbed in sediments on the bed of the Irish Sea.
The United Kingdom and Ireland he on opposite sides of the Irish Sea. These radioactive discharges into the Irish Sea are resulting in pollution, and their movements directly affect freland, including its waters^"*. The United Kingdom is therefore obliged to cooperate with freland with respect to the protection and preservation of the marine envfronment from the frans-boundary effects of LBSMP.^s This frans-boundary nature of LBSMP indicates the regional dimension of LBSMP contiol, particularly in enclosed and semi-enclosed seas.
Apart from the frans-boundary nature, there are a large number of scattered sources of
LBSMP, such as persistent organic pollutants (POPs), uicluding chlorinated plastics and pesticides, which have a cumulative impact on the marine and coastal environment.^^
The danger of these pollutants is cumulative because the chemicals are not easily
33 The MOX Plant Case (Ireland v United Kingdom), Request for tiie Prescription of Provisional
Measures Under Article 290, para 5, United Nations Convention on the Law of the Sea, Nov 2001,
para 10. This report was commissioned by the European Parhament's Director General for
Research, under tiie auspices of its Panel on Scientific and Technological Office Assessment
(STOA). See also Chapter 5.3.2.2 infra.
34 /6jWpara9
35 The MOX Plant Case (Ireland v United Kingdom), ibid, paras 10, 59 and 60, see also Chapter
5.3.2.2 infra.
36 Saetevik S, Environmental Co-operation Between the North Sea States, (Bel Haven Bell, 1988) at
15.
-30- excreted due to their poor solubility in water^^. The effects of these pollutants are long term.
Due to their persistence and ability to tiavel long distances they could be sufficiently fransported regionally and globally.38 Apart from the inshore and coastal waters the incremental impact of these pollutants also creates damage in oceanic waters. This global impact indicates the global dimension of LBSMP control. Conversely, it reqmres intemational control to protect the marine envfronment.
Because it is both a national and intemational, problem control of the LBSMP needs to be dealt with globally, regionally, bilaterally and nationally. In order to seek solutions to these problems, a comprehensive strategy of cooperation to improve the existing management problems is required.
2.9 LBSMP AND ITS IMPACT ON THE MARINE ENVIRONMENT
Land-based pollutants are largely the consequence of human activities on land, and along the coast.
37 UNEP Global Persistent Organic Pollutants (POPs) Treaty - E^C5/Johansburg Dioxms: Aiming for
Ultimate Elimination. This issue paper was prepared in collaboration with the Cenfre for Health,
Environment, and Justice, tiie Science and Environmental Health Network, and Toxics Link, India,
August 2000.
38 Ibid. Recognising this as a large scale problem, the Stockhohn Convention on Persistent Organic
Pollutants was adopted in May 2001.
-31- 2.9.1 Types of Activities
hi relation to LBSMP, increased impact of human activity is related to the increasing
degree of urbanisation and industiialisation along coastal areas and then adjacent
watersheds.39 Land-based activities (LB As), which contribute to the degradation of the
marine envfronment, can be convenientiy categorised as:
• household activities,
• industrial activities,
• agricultural activities, and
• urban development of land.
Although LBSMP arise from a wide variety of human activities, each activity has
special characteristics. These activities are discussed below.
2.9.1 (a) Household Activities
In their personal domestic lives, human beings produce many kinds of wastes. For
example, sewage wastes, waste water from cleaning, gases from the use of fuel for cooking, heating or vehicular operation, and solid wastes from garbage disposal.
Household waste substances discharging into the marine environment range from organic materials to inorganic chemicals, (for example, from detergents to pesticides).
39 Cote RP, 'Marine Environmental Management: Status and Prospects', Marine Pollution Bulletin,
(hereinafter MP 5M), 1992, Vol 24 at 19.
-32- The changing levels of population in coastal areas are a contributory factor to LBSMP.
Six out of ten people now hve within 60 kilometres of the coast and the global population of the coastal zone is projected to double within the next 20 years.^o Due to this concenfration and growth of population within the coastal zone, the amount of discharge of wastes from households is high and increasing. Based on this fact, marine pollution, caused through domestic activities, received special attention in Agenda 2H' and the follow-up Washington Declaration (1995).'*2
2.9.1 (b) Industrial Activities
Industrial activities in coastal areas have been identified as another significant source of
LBSMP. The world's oceans are being polluted by a wide variety of industrial effluents, which, accorduig to their physical and chemical characteristics, may be classified as:
dissolved organic substances including toxic, persistent and biodegradable materials;
40 Karau J, 'The Confrol of Land-based Sources of Marine Pollution - Recent Intemational Initiatives
and Prospects', MP Bu, 1992, Vol 25 at 80.
41 Agenda 21 para 17.27. Agenda 21 is one of tiie major outcomes of the United Nations Conference
on Envfronment and Development (UNCED) 1992 held m Rio de Janefro. For details see Chapter
5.4.3 infra.
42 Intergovernmental Conference on Protection of the Marine Environment From Land-based
Activities, Chapter V, para 105, (subsequentiy Washington Conference). Participating states came
to an awareness tiiat domestic waste disposals are considered to be one of tiie most significant
tiireats to tiie coastal envfronment worid wide. For details on Washington Conference see Chapter
5.4.4 infra. dissolved inorganic substances includmg nutrients;
insoluble organic substances;
insoluble inorganic substances; and
radioactive materials.
A vast range of wastes such as biodegradable organic wastes, persistent organic wastes, and insoluble inorganic wastes, are derived from industrial activities and are damaging the marine environment.'*^ Although the nature of industrial pollutants sometimes differs from region to region affecting the environment in different ways, major industrial sources are: chemical manufacturing (organic and inorganic); petroleum refineries and oil terminals; iron and steel industries; and food processing and manufacture.''^ These wastes can be discharged indfrectly, via sewage freatment plants, or, directly, through pipelines with outfalls along the coast or into rivers and estuaries.
2.9.1 (c) Agricultural Activities
Agricultural activities are another important source of marine pollution. This category includes surface run-off into rivers, water drainage by canals from land used for farming activities, and the movement of air distributing chemicals and soils. In addition to
43 GESAMP, 1980, Report and Studies No 11 at 58.
44 For example, a 1993 World Bank study concluded that indusfrial pollution constitutes 25-50 percent
of the total pollution load in different rivers in Java. 'World Bank, Indonesia Envfronment and
Development: Challenges for the Future', Environment Unit, Country Department HI, East Asia and
Pacific Region, Report No 12083-IND, 1993) at 70.
-34- manure and other waste products of farming industries (milk products, poultry wastes, etc), pollutants may mclude suspended animal waste solids, detergents, other biodegradable substances, fertihsers and pesticides.'*^ The United Nations Environment
Programme (UNEP) asserts that agriculture mn-off from fertihser-freated fields and intensive stock grazing is one of the major sources of coastal water pollution.^^
In 1990, a study carried out by UNEP, estimated 567 tonnes of pesticides per year enter the Mediterranean Sea and commented that the problem had existed for some time.'*'^
According to a 1987 study, UNEP estimated, in 1977 the Food and Agriculttiral
Organization (FAO) contributed to a total distribution of 148 tonnes per year of the same group of pollutants into the sea.^^
TABLE 2.1 DISCHARGE OF PESTICIDES INTO THE MEDITERRANEAN SEA (PER ANNUM) Please see print copy for image
Source: UNEP: State of the Marine Envfronment in the Mediterranean Region, UNEP Regional Seas Reports and Stiidies No 132, 1990 at 125.
Extensive use of fertilisers and pesticides has a polluting impact upon the marine environment.'^^ High levels of pesticides are lethal to fin fishes and molluscs. It is
45 GESAMP, 1980, supra note 43 at 60.
46 GESAMP, Reports and Studies No 39, 1990 at 1
47 UNEP, State of the Marine Envirormient in tiie Mediterranean Region, UNEP Regional Seas
Reports and Stiidies No 132, 1990, at 22
48 UNEP, The State of the World Environment, (Nafrobi, Kenya, April, 1987).
49 See Eisler R, 'Pesticide Induced Stiess Profiles', in Ruivo M (ed). Marine Pollution and Sea Life,
(Finish News Books Ltd: London, 1972) at 229-232. -35- believed lower doses produce sublethal effects (such as pathological changes in various organs). Most pesticides are toxic in nature;50 their properties are relatively persistent^' and bioaccumulative.^2
2.9.1 (d) Summary
The discussion of 'types of activities' reveals that although various types of activities produce LBSMP, they mostly end up as sewage. Sewage is principally organic but can also contain considerable levels of metals, oils, gases, detergents, and industrial wastes.53 Sewage is dumped and carried off in drains or by sewers to the coastal waters.
In terms of sewage disposal, it is to be noted, all over the world most sewage is still unfreated prior to disposal whether in developed, or jointly developed or developing
50 Toxicity is defined by GESAMP as 'tiie harmiul quahties of a substance' GESAMP Glossary of
Terms, 15 session, 25-29 March, 1985.
51 Resistant to photolytic, biological and chemical degradation. Ruddle states: 'in marine organisms
the residues of dichlorodiphenytrichloroetiiane (DDT) and polychlorinated biphenyls (PCBs) are
associated with tiie lipid fraction, and thefr levels in any organism depend on tiie frophic level of tiie
organism and its history of exposure to the pollutant'. Ruddle K, 'Pollution in the Marine Coastal
Environment of the ASEAN Countries', in Sien CL and MacAndrew C, (eds). South East Asian
Waters: Frontier for Development, (McGraw-Hill Intemational Book Co: Singapore, 1981) at 146.
52 Bioaccumulation is defined as the selective fransfer of a chemical from tiie envfronment into an
organism. This means, where substances tiiat are ingested by organisms cannot be readily excreted,
the substance accumulates within tiie organism. (Royal Society Stiidy Group, Pollutant Conti-ol
Priorities in the Aquatic Environment, (The Royal Society, London, 1994), Cited in Morgan SA,
Land-based Marine Pollution, A Project A2 Report, (University of Auckland, Nov 1995) at 28.
53 International Maritime Organization (IMO), IMO News, No 1, 1991, at 4.
-36- countiies.54 The severity and geographic spread of the problem is covered m a brief
review of selected examples.
• Mediterranean Seas Region
A survey in 1972 of the Mediterranean region found that most coastal communities
discharge untreated sewage mto the sea with the balance usually given minimal
freatment.55 In the same year, the Food and Agricultiu-al Organization (FAO) and
General Fisheries Council for the Mediterranean (GFCM) completed a study that
estimated, in the North-Western basin of the Mediterranean region, at least 80 to 90
percent of sewage is discharged completely unfreated. It is dumped either by direct
entry into the sea/river estuaries, or, by pipelines, which do not normally extend to
distances of more than 100 to 300 mefres from the coast. ^6
• West and Central African Seas Region
According to the following survey of LBSMP in the urban area of the Ebrie Lagoon,
which constitutes the major coastal ecosystem in West Afiica, household effluent is a
major source of such pollution. For example, in Abidjan City, built on the shores of the
Ebrie Lagoon, household effluent is identified as direct sewage discharges and sludge
discharges from septic tanks. Here, one milhon people, that is, 40 percent of the
54 Although unfreated sewage from coastal towns has been reduced to a very low level or eliminated
altogether in the North Sea region, 50 percent of sewage discharges from Belgium are stiU
xmtteated, (Clark RB, Marine Pollution, supra note 29) at 128.
55 Clark RB,/6JJ at 166.
56 FAO/GFCM, The State of Marine Pollution in the Mediterranean and Legislative Contiols, 1972, at
6, -37- population of the city, are connected to a sewer network, which discharges sewage into the lagoon without any freatment. Another 45 percent are not connected to any sewer
system at all.^^
• South Pacific Seas Region
Presently, in the United Kingdom, around 300 million gallons of sewage, most of it unfreated, is discharged into the sea daily. A 1989 Water Research Cenfre (WRC) report revealed that 60 percent of discharged sewage was raw and a fiuther 8 percent was subject to primary treatment.^8
57 Kouassi AM, Kaba N and Me'tongo SB, 'Land-based Sources of Pollution and Environmental
Quality of tiie Ebrie Lagoon Waters', MPBu, 1995, Vol 30, No 5 at 296
58 It is estknated by WRC tiiat there are about 1,000 outfalls discharging sewage around the UK
coastiine. Just over half of these outfalls are classified as major. WRC made a survey of 620 of
these outfalls. From the reports of the House of Commons Environment Committee (1990) it is
apparent 87 percent of the major coastal outfalls receive only preliminary, or no freatment. (Fourth
Report: Pollution of Beaches, volume 1, House of Commons Environment Committee, 1990,
quoted from Rees G, 'Health Implications of Sewage in Coastal Waters - The British Case', MP Bu,
1993, Vol 26, No 1 at 14).
-38- TABLE: 2.2 LEVELS OF TREATMENT AT UK OUTFALLS PRIOR TO DISCHARGE Please see print copy for image
Source: Fourth Report: Pollution of Beaches, volume 1, House of Commons Envfronment Committee, 1990, quoted from Rees G, 'Health Imphcations of Sewage in Coastal Waters - The British Case', MP Bu, 1993, Vol 26, No 1 at 14.
The United Kingdom, Marine Conservation Society, produced the 1995 Readers Digest
'Good Beach Guide' and continues to highlight tiie problems of sewage pollution on beaches and campaigns for further improvement.^^
In Ausfralia over 80 percent of the population reside m large coastal cities with agmg and inadequate sewage freatinent system.^o Each year around 10,000 tonnes of phosphoms and 100,000 tonnes of nifrogen are discharged through sewage via the coastal area, and much of it finds its way into the marine environment.^! According to
59 Jones P, NEWS, MP Bu, 1995, Vol 30, No 6 at 361
60 Zann L, Our Sea, Our Futiue, Major Findings of the State of the Marine Environment Repori for
Australia, Department of tiie Envfronment, Sport and Temtones, Canberra, 1995, (subsequently
Our Sea Our Future) at 63.
61 Commonwealtii of Austtalia, Ausfralia's Oceans New Horizons, Oceans Policy and Consuhation
Paper, (1997) at 11.
-39- UNEP, as much as 70 percent of the waste effluent discharged into the Pacific Ocean has had no prior treatment.^^
• East Asian Seas Region
In late 1991 the Repubhc of Korea reported that only one thfrd of municipal waste water went to treatment plants. The discharge of unfreated sewage is a threat to inshore marine life. 63 n also has an adverse effect on humans as unfreated sewage may carry a variety of diseases such as, gasfroenteritis, hepatitis, and conjunctivitis.^ In Shanghai, in a three month period ui 1995, nearly 300,000 people contracted hepatitis A due to ingesting contaminated clams. Forty-seven of those contracting the disease, died.^^
• Wider Caribbean Seas Region
In 1995, a study by the Marine Pohcy Cenfre (MPC), of the Woods Hole
Oceanographic Institution, USA, noted that sewage is the most widespread LBSMP
62 UNEP, Global Environment Outlook, (Oxford University Press: New York, 1997)
63 A number of studies have found tiiat sewage pollution can have a significant impact on marine
hvmg resources. See Wharfe JR, (et al), 'Some Effects of tiie Discharge of Chlorinated Sewage
from a Short Sea Outfall, on Intertidal Macroorganisms', Environmental Pollution, (Series A), Vol
25, 1981; Congress of tiie United States, Wastes in Marine Envfronments (Summary), (Office of
Technology Assessment: Washfrigton, April, 1987) at 19-20; Fafrweaflier PG, 'Sewage and Biota on
Seashores: Assessment of Impact in Relation to Natural Variability', Environmental Monitoring and
Assessment (Special Conference Issue), 1989.
64 Zann L, Our Sea, Our Future, supra note 60 at 63.
65 Lenssen N, 'The Ocean Blues', supra note 4 at 71.
-40- problem, followed by coastal erosion in the Wider Caribbean Region (WCR).66 Again such wastes are mostly unfreated.67
In line with these parameters of discussion, it is to be noted that the worid's oceans are threatened by human activities on land and in the coastal areas. However, tiie marine and coastal environment is also affected by contaminants. The next section discusses
'types of contaminants'.
2.9.2 Types of Contaminants
The present discussion attempts to document the major contammants. These include plastic litter, nutrients, heavy metals, sediments, oil, and radioactive wastes.
2.9.2 (a) Plastic Litter
Litter inputs into the marine environment may amount to ten million tons per year, with plastic comprising a significant percentage of this calculation, ^s It is highly persistent and easily fransportable. Each year around 150,000 tonnes of synthetic fishing gear, including nets, ropes, and floats, are lost or discarded in the ocean.^^
66 Schumacher M, Hoagland P and Gaines A, 'Land-based Marine Pollution in the Caribbean', Marine
Policy, (1996) Vol 20 at 102.
67 In 1993, Pan American Health Organization (PAHO) indicated that only 10 percent of the sewage
generated in the Cenfral American and Caribbean Islands countries was properly tteated.
(Envfronmental issues in the Caribbean: An Overview of Land-based Sources of Marine Pollution.
http://w\^^w.cep.unep.org/issues/lbsp.html.
68 Laws EA, Aquatic Pollution: An Introductory Text, (John Wiley and Sons: New York, 1993)
69 GESAMP, The Health of the Oceans, UNEO, Nafrobi, Kenya, 1990.
-41 - TABLE 2.3 COLLECTED PLASTIC LITTER ALONG 560 KM OF UNITED STATES BEIACH FRONT Please see print copy for image
Source: GESAMP, The State of the Marine Environment, (Blackwell Scientific Pubhcations, 1990).
The level of this contaminant is much higher in heavily populated coastal areas compared to other areas. A survey of coastal pollution in Ambon Bay (Indonesia) identified that beach litter (glass, metals, and other organics including faecal material), varied in quantity from less than one percent in isolated areas, to 28 to 92 percent in the densely populated area around Ambon Bay.^o
Plastic is not biodegradable and is rapidly becommg the greatest garbage hazard on the beaches and in the oceans.^i in April 1989, Boy Scouts and Giri Guides collected 559 cubic meters of garbage, of which 34.9 percent was plastic, from 8.2 kilomefres of beach near Athens, Greece.72 A survey in Australia into sources of beach litter found
70 Morrison RJ and Delaney JR, 'Marine Pollution Confrol m tiie Arafiura and Timor Seas', Marine
Pollution Bulletin, 1996, Vol 32, No 4 at 331.
71 National Beach Clean-up Volunteers Survey, USA (1989) identified tiiat plastics were by far tiie
single most abundant type of litter. Accorduig to tiie survey, approxunately 62 percent of tiie debris
collected from American beaches was plastic. (O'Hara K, 'Beaches', EPA Journal, Vol 15, No 5,
1989) at 23.
72 iMONews,No 1,1991.
-42- that 44.7 percent of litter was of some form of plastic, bags, ropes, containers or bottle tops.'^^
FIGURE 2.1: TYPES OF LITTER FOUND IN SURVEY IN AUSTRALIA
Please see print copy for image
Source: Our Sea, Our Future, Major Findings of the Marine Envfronment Report for Austiaha, Department of the Envfronment, Sport and Territories, Canberra, 1995 at 62.
A scientific survey of beaches near Brisbane, Sydney, and Melboume m Austiaha found
that most fitter came from sfreets and garbage dumps and reached beaches via sfreams
and drains.74 It has been estimated that 4,000 tonnes of plastic litter enters Austiahan
Seas annually afl;er being dumped into rivers, sfreams and drains.^s hi the Austrahan
Oceans, approximately, 46,000 pieces of plastic float in each square mile.^s Thousands
73 Our Sea Our Futire, supra note 60 at 62, (tiie figure is drawn from a graph on tiie types of litter
foimd in the survey).
74 Our Sea, Our Future, ibid at 62
75 Quoted from, White MWD, Marine Pollution Laws in Austi-alasian Region, (Federation Press,
1994) at 22.
76 Research by Pure Corbett of Dorrigo, NSW, Reported m Greenpeace Austtalia News, Summer
1992, Vol 3, No 1, Publication No SBO 003, plO.
43 of seabirds and other wildlife are killed annually by floating litter, particularly floating plastics,^'' through entanglement, suffocation and ingestion.'^^
2.9.2 (b) Nutrients
Nutiients are the basic substances essential to animal and plant life and include carbon dioxide (COj), nifrateCNOj), ammonia(NH3)and phosphate(P04). However, any body of water that receives too high a concentration, may be getting too much of a good thing.'^^
It has been estimated that the flux of nutrients into oceans due to human activity is at least equal to, and probably greater than natural flux. Increased soil erosion in rural areas, fertilizer in agricultural areas and sewage and stormwater mn-off in urban areas are major sources of nutrients. The report of GESAMP (1990) states:
The two major sources of nutiients to coastal waters are sewage disposal and agricultural run-off from fertilizer-freated fields and from intensive stock raising.
In virtually every part of the world for which data exists, there are signs of increased nutrient discharges to the marine environment.^o There is also considerable evidence that most of the atinospheric nifrogen input to coastal waters is anthropogenic.
77 Windom HL, 'Contammation of tiie Marine Envfronment from Land-based Sources', MP Bu, 1992,
Vol 25 at 33.
78 Institutional Arrangements for Implementation of tiie Global Program of Action for tiie Protection
of the Marine Envfronment from Land-based Activities, UNEP (OCA)/LBA/LG-2/7, para 148,
{Environmental Policy and Law, 1996, Vol 26, No 1 at 50).
79 Beer T, Environmental Oceanography, supra note 2 at 244
-44- TABLE 2.4 ORIGIN OF ANTHROPOGENIC INPUTS OF NITROGEN (N) AND PHOSPHORUS (P) Please see print copy for image
Source: VoUenweider RA, 'Coastal Marine Euttophication: Principle and Confrol', in VoUenweider RA (et al). Marine Coastal Eutrophication, (Elsevier, Amsterdam, 1992) at 17.
On a global basis, the per capita anthropogenic load of nifrogen in rivers in 1980 was seven kilograms.^i However, this loading is greater in developed coimtries. For example, 8 kilograms in the USA, and 10 kilograms m Europe, respectively. An increasing world population and increased standard of hving in developing countiies will increase nifrogen input considerably. Similar predictions can be made regarding the frends in atmospheric nifrogen transport.^^
Nutrients, generated through industrialisation, urbanisation and agriculture in the drainage basin of the Black Sea are increasing. For example, research conducted by the
Romanian Institute of Marine Research between 1959 and 1992 estabhshed that the
Romanian coast of the Black Sea receives a large river-borne input of inorganic nutrients.83 in 1992 the Danube River alone was estimated to infroduce some 60,000
80 GESAMP, 1987 at 198. For example, high levels of phosphoms, which is a sign of nutiient levels
rismg, have been recorded for Port Phillip Bay, Victoria. (Envfronmental Protection Authority of
Victoria, Annual Repori 1991-92, at 14).
81 Ibid.
82 Ibid.
83 Cociasu A, Dorogan L, Humborgi C, and Popa L, 'Long Term Ecological Changes in Romanian
Coastal Waters of tiie Black Sea', MPBu, 1996, Vol 32, No 1, at 32.
45 tonnes of phosphoms (P) and 340,000 tonnes of inorganic nifrogen (N) a year through
Romania into the Black Sea.^^
Excessively high levels of nutrients in the sea cause eutrophication,85 which has a severe negative effect on coastal ecosystem including estuaries, temperate seagrasses and tropical corals, as they are highly sensitive to nutiient level changes.^s Ausfrahan coastal ecosystems are naturally nutiient poor and thefr biota is particularly vuhierable to euthrophication.87 It has been noted by the Great Barrier Reef Marine Park Autiiority
(GBRMP) that elevated nutrients are a significant threat to Austraha's coastal marine environment^^. In recent years, many of Australia's inland waterways have suffered
8'+ Groombridge B and Jenkins MD, The Diversity of The Seas: A Regional Approach, (World
Conservation Press, 1996) at 15.
°^ Eufrophication: over enrichment of water body with nutrients, resulting in excessive growth of
organisms and depletion of oxygen concenfration. It may happen naturally, but it is often a form of
pollution. It leads to an increase in the growth of aquatic plants and often to algal blooms, which
may smother higher plants, reduce tight intensity, produce toxins, which in turn kill fish and,
through the aerobic decomposition of orgaiuc matter, deoxygenate and the water, causing the death
of many aquatic animals and higher plants. Dictionary of the Envfronment at 50; see also Luiclon
RJ, Boxshall GA and Clark PF, A Dictionary of Ecology, Evolution and Systematics, (Cambridge
University Press: Cambridge, 1982) at 87.
86 Commonwealth of Austiaha, Austi-alia State of the Environment, 1996, at 8-10.
87 Nufrient contamination has been identified as one of the most serious tiireats to Ausfralia's near
shore marine environment. (Commonwealtii of Austiaha, Australian State of the Marine
Environment, 1996, at 8-10.
88 Zann L, The state of the Marine Environment Report for Australia : Technical Summary, Report
Pubhshed by tiie Great Barrier Reef Marine Park Authority for tiie Department of the Envfronment,
Sport and Territories, Commonwealtii of Austiaha, 1996 at 183-84.
-46- catasfrophic blooms of toxic blue-green algae because of high levels of nutrients from agricultural mn-off and urban sewage.^^
2.9.2 (c) Heavy Metals
Metals of biological concem may be divided into three groups:
1. tight metals (sodium, potassium(K), calcium (Ca), etc), normally fransported as
mobile cations in aqueous solutions;
2. fransitional metals (for example, copper (Cu), cobalt (Co), etc), these are essential
ui low concenfrations but may be toxic in high concentrations; and
3. heavy metals or metalloids (for example, mercury (Hg), lead (Pb), arsenic (As),
etc), which are generally not required for metabolic activity and are toxic to the
hving cell at quite low concenfrations.^o By definition heavy metals are the group
of metals and metalloids with an atomic weight greater than 6g/cm. Heavy Metals
occur in the oceans naturally through erosion of ore-bearing rocks and vulcanism.
Anthropogenic sources are urban stormwater run-off, industrial effluent,
sediments from mming operations, and atinospheric fall out from burmng of fossil
fuels and metal finishing and plating.
89 Our Sea Our Future, supra note 60 at 55.
90 Clark RB, supra note 29 at 63.
-47- TABLE 2.5 WORLD-WIDE EMISSION OF TRACE METALS INTO THE MARINE ENVIRONMENT
(IN THOUSAND TONNES PER YEAR) Please see print copy for image
Source: Clark RB, Marine Pollution, (Clarendon Press: Oxford, 4 ed, 1997) at 62.
Metals, which dissolve in seawater, contaminate the marine environment by accumulating in sediment, or bio-accumulating in marine organisms.^i Significant contaminants m the world's estuaries and coastal waters are mercury (Hg), cadmium
(Cd), lead (Pb), copper (Cu), nickel (Ni), zinc (Zn), chromium (Cr), and arsenic (As). A
1992 study showed that the Danube River alone infroduced 1,000 tonnes of chromium
(Cr), 900 tonnes of copper (Cu), 60 tonnes of mercury (Hg) and 4,500 tonnes of lead
(Pb) into the Black Sea.^^ Heavy metals are also entering into the seas m different parts of the developing world. For example the Vietnamese Sea contains a significant amount of heavy metal, which presents a risk to the marine envfronment.
91 Metal contanunation occurs m tiuree different ways: through water column; tiirough sednnentation;
and tiu-ough marine biota. For details see Rambow PS, 'The Significance of Accumulated Heavy
Metal Concentiations in Marine Organisms', m Miskiewicz AG (ed). Proceedings of a
Bioaccumulation Workshop, Sydney, NSW, May 1996 at 1-14.
92 Groombridge B and Jenkins MD, The Diversity of The Seas: A Regional Approach, supra note 84 at
15.
-48- TABLE 2.6 HEAVY METAL FLOW IN THE VIETNAMESE SEA
TONNES PER YEAR Please see print copy for image
Source: Dr Hong Thao N, 'The Development of National Marine Policy in Vietnam', Paper Presented at the Intemational Conference on the Protection and Preservation of the Marine Envfronment, University of Wollongong, 8-9 October, 1998, Organised by the Cenfre for Maritime Pohcy, University of Wollongong, Wollongong, NSW, Austtalia.
Excessive loads of heavy metals may be toxic, with the range of harmful effects in marine organisms varying. ^^ Marine organisms, often becoming concenfrated as they move up the food chain, absorb heavy metals, affecting the growth, reproduction and mortality of marine life.^^ Available data indicates that present levels of, for example, mercury and tin, in the seas constitute a hazard to marine hving resources and can cause harmfiil effects.^^ Shellfish, for instance, oysters and cockles, accumulate heavy metals,
such as mercury (Hg), which when consumed by predators (includmg humans), will cause long-term, chronic impact on thefr health.96 Once heavy metals are in the seas or
93 Batiey G, 'Heavy Metals and Organometals', m Zann L and Kilola P (eds). Marine Environment
Repori for Austi-alia, (SOMER Pollution Report), (Pubhshed by Great Barrier Reef Marine Park
Autiiority for tiie Department of Envfronment, Sports, and Territory, Commonwealtii of Austtalia,
1995) at 63.
94 Churchill RR and Lowe AV, supra note 31 at 331.
95 GESAMP Reports and Studies, No 22 by Worid Heritage Organization (WHO).
96 Congress of the United States, Wastes in Marine Environment, at 19-20. In this context, tiie
Minimatta pollution incident in Japan (1960s) is memorable. The Mmimatta fishing community in
Japan received mercury dosages by eating mercury contaminated fish. About 2,000 people were
-49- oceans there is no way of removing them as they are not biodegradable, but, rather they are stable and persistent environmental contaminants.^"^
2.9.2 (d) Sedimentation
Sediment is the unconsohdated inorganic and organic material that is suspended in and being transported by surface water, or, has been deposited and settled mto beds.^s
Sedimentation is a process of the removal of solids from the water column before filfration by gravity or separation.99 Sedimentation beyond naturally occurring processes is mainly caused by bad farming practices, deforestation and poorly managed coastal developments. There are seven possible sediment sources within an estuary, all of which illustrate global sedimentation patterns. They are:
1. land erosion by rivers and streams,
2. disposal of domestic and industrial effluents and solid wastes,
3. littoral drift and bank erosion,
4. wind erosion of coastal dunes and drying inter-tidal shoals,
5. erosion of the near shore continental shelf,
affected. Forty-three people died and more than 700 were permanently disabled. Seafood from the
Minimatta Bay still cannot be eaten. (Lenssen N, ' The Ocean Blues', supra note 4) at 73.
97 Institiitional Arrangements for frnplementation of tiie Global Program of Action for tiie Protection
of tiie Marine Envfronment from Land-based Activities, UNEP (OCA)/LBA/LG-2/7, para 122,
(Environmental Policy and Law, 1996, Vol 26, No 1) at 48.
98 King JJ, The Environment Dictionary, (John Wiley and Sons, Inc, 1995) at 605.
99 King JJ, ibid sA 605.
-50- return of dredged spoil, and
7. decomposition and excretions of marine and river plants and animals. ^0°
TABLE 2.7 WORLDWIDE EROSION (MILLIONS/HA) Please see print copy for image
Source: Stockfrig M, 'Soil Erosion and Land Degradation', in O'Riordan T (ed), Environmental Science for Environmental Management, (Longman Scientific and Technical, UK, 1995) at 225.
It is beheved that, land-run off contributes to the major source of sedimentation. Most rivers of the Wider Caribbean Region, uicluding the Mississippi and Orinoco, discharge sediment loads, ranging between 100 and 100 milhgrams per lifre, into the coastal waters. The yearly sediment load m the region can be estimated at 10^ tonnes per year, or, approximately 12 percent of the global sediment input from rivers, estimated at 8 times 10' toimes per year.^o^
100 Beer T, supra note 2 at 242
101 Envfronmental issues in tiie Caribbean: An Overview of Land-based Sources of Marine Pollution.
http://www.cep.unep.org/issues/lbsp.html.
51 TABLE 2.8 SELECTED RIVERS OF THE WORLD RANKED BY ANNUAL SEDIMENT LOAD Please see print copy for image
Source: Beer T, Environmental Oceanography, (CRC Press, 2nd ed, 1996) at 237. ^ITg = 10^ tonnes = 10l2g
In 1994, effects of rural development in Papua New Guinea on the marine ecosystem, were examined by Hubar, who found an increased level of sedimentation due mostly to
deforestation, poor agriculture, poor mining practice and mangrove clearing.'02 These
activities had increased the rate of mobilization of soils into the coastal marine
environment. This type of soil delivery to coastal waters is a problem in both developed and developing countiies of tiie world.^o^
A primary impact of sedimentation is the reduction of sunlight penefration, which inhibits photosynthesis and thus the generative capacity of marine living organisms.
Sedimentation also causes respiratory disturbances in some marine living organisms
102 Morrison J, 'Marine Pollution in tiie Arafiira and Timor Seas', MPBu, Vol 32, No 4, 1996 at 331.
103 Windom HL, supra, note 77 at 34. 52- includmg cockles, mussels, oysters, shrimps and crabs, if the loads of sedimentation increase above the natural ambient average. Another hazard is that hving organisms may be buried on the ocean floor if sedimentation occurs as a result of dredging and offshore tin (Sn) mining operations. Some sediments may act as repositories of toxicants in the water column, even in areas where original independent inputs of pollutants may have ceased. ^^^
2.9.2 (e) Oil
Concem has increased in recent years in regards to the input of oil from land-based sources.^o^ Enclosed and semi-enclosed coastal areas receive a large amoimt of oil from land sources. 1°^ These include urban, industrial and agricultural run-off ^^'^ Globally, these sources represent about half of the total anthropogeruc input of oil to the marine
104 Good J and Gibbs C, Port Phillip Bay Environmental Study: Task T7 Organic Toxicants in
Sediments, Report of CSIRO Institute of Natural Resources and Envfronment, Envfronment
Protection Authority of Victoria, (1995) at 1. Accumulation of organically rich sediments may
release toxic gases such as hydrogen sulphide (H2S), and resuU m local and short-lived fish kills.
(Ruddle K, supra note 51) at 139.
105 GESAMP, Draft Report of the GESAMP Workuig Group on tiie Impact of Oil, Individual
Hydrocarbons and Related Chemicals on the Marine Envfronment, Including Used Lubricating Oil,
Oil Spill, Confrol Agents and Chemicals Used Offshore, London: IMO, 1992. Wmdom HL,
'Contanunation of tiie Marine Environment from Land-based Sources', supra note 77 at 34.
106 See GESAMP, Reports and Stiidies No 50, 1993 at 50.
107 Institiitional Arrangements for Implementation of tiie Global Program of Action for tiie Protection
of the Marine Envfronment from Land-based Activities, UNEP (OCA)/LBA/LG-2/7, para 122.
(http://www.unep.org/unep/gpa/pol2al 1 .htm, 1997)
-53- environment. In some regions such as the North Sea, the proportion is higher. i08
GESAMP (1993) attiibutes 50 percent of oil pollution in the seas to tiie land sources.io^
Most oils from land-based sources are refined petroleum products or thefr derivatives.i^o
Of these, waste crankcase oil from automobiles is notable. Generally received by gasohne service stations when vehicle oil is changed, and although reusable as road oil, or low grade fuel, it is not usually recycled, but rather, it is dumped into a sewer or simply poured on the ground, thereby eventually finding its way to tiie ocean. In 1972, it was estimated that the amount of spent lubricants reaching the world's oceans exceeded 17 millions barrels."^
Pefroleum Hydrocarbons are one product of refined pefroleum. They are naturally present in different concenfrations of water, sediments and biota in the marine environment, but are normally at less than one microgram per htre concentration. 1^2 i^
1973 it was estimated, 2.7 million metric tonnes of hydrocarbon entered oceans from coastal refineries and land run-off.^^^ An evaluation of stormwater run off in
Philadelphia found stormwater contained an average of 3.7 milligrams per lifre of total
108 Windom H L, 5M;7rfl note 77 at 34.
109 GESAMP, 1993 supra note 106 at 50.
110 Institutional Arrangements for Implementation of the Global Program of Action for the Protection
of the Marine Envfronment from Land-based Activities, (The GPA), supra note 96, para 121.
111 See, Grossling B, 'An Estimate of the Amounts of Oil Entering the Oceans', Sources, Effects and
Smks of Hydrocarbons in tiie Aquatic Envfronment, (The American Institiite of Biological Sciences,
1976) at 5-36.
112 Ibid at 5S.
113 Mangone GJ, Law for the World Ocean (Stevens and Sons, 1981) at 256.
-54- hydrocarbons, of which 86 percent was associated with the particular fraction, i^'* High levels of polycyclic aromatic hydrocarbons (PAH) have also been detected in water sediments from Port Philip Bay and Corio Bay in Victoria, Ausfraha.^^^
TABLE 2.9 ESTIMATED WORLD INPUT OF PETROLEUM HYDROCARBONS TO THE SEA Please see print copy for image
Source: Clark RB, Marine Pollution, (Clarendon Press: Oxford, 4tii ed, 1997) at 38.
Aromatic hydrocarbons, which include polycyclic aromatic hydrocarbons (PAH), that is, benzpyrene, anthracene, chrysene, fluoranthene and pyrene, known as carcuiogens, are environmentally harmfiil, and have been implicated m a wide range of diseases in marine organisms.^^^
114 See, Hunter J, (et al), 'Confribution of Urban Runoff to Hydrocarbon Pollution', Joumal Water
Pollution Conti-ol Federation, 1979, Vol 51, No 8 at 2129-2138.
115 Richardson BJ, (et al), 'Trace Metals, Organochlorins and Hydrocarbons in Port Philip Bay
Victoria: A Historical Review', MPBu, 1992, Vol 25 at 398.
116 Clark RB, supra note 29 at 44. See also, Connel DW, 'Occurrence and Effects of Pefroleum
Hydrocarbons on Austialian Marine Envfronment', m SOMER Pollution Repori, 1995 at 58.
-55- PAHs are also strongly bioaccumulative in food chains and can bind to organic materials in sediments affecting marine organisms growth and reproduction, especially amongst sensitive larval and juvenile species. ^^"^
2.9.2 (f) Radioactive Wastes
Seawater is naturally radioactive through the activity of cosmic rays. Particularly, through the presence of potassium-40, it may also contain decaying products of uranium and thorium, receiving a continuous input of tritium (3H radioactive isotope of hydrogen).'18 In some parts of the world, very high levels of natural radioactivity are recorded in marine sands. The best known examples are in Kerala, South-West India, and in the provinces of Espirito Santo and Rio de Janeiro in Brazil.i'^
Radioactive wastes are generated by human activity in the production of nuclear energy as well as in nuclear apphcations in medicine, research, and industry.'^o Radioactive wastes include elements and compounds emitting ionising radiation.'21
117 Swan J, Neff JM and Young PC, Environmental Impacts of Offshore Oil and Gas Development in
Australia, Ausfralian Pefroleum Explorations Association and Energy Research and Development
Corporation, Melboume, 1994.
118 Clark RB, supra note 29 at 99.
119 ClaxkRB, ibida.t 99.
120 Sitarz D (ed). Agenda 21: The Earth Summit Sfrategy to Save Our Planet, (Boulder, Colorado,
1994) at 230
121 Cronm LE and Flemer DA, 'Energy Transfer and Pollution', in Olson TA and Burgess FJ (eds),
Pollution and Marine Ecology: Proceedings, (Interscience Pubhshers: New York, 1967), at 180.
-56- Radioactive substances including, liquid wastes and solid wastes, when discharged, or, released into the seas, may cause mortalities of larvae and adult marine mammals because of their absorption of radiation. For example, radionuclide and chemical contaminants being released into the Arctic from sites in the former Soviet Union, are commonly boimd to sediments. When released, this sedimentation could potentially contaminate the subsistence of commercial fisheries and marine mammals of northem
Alaska. 122
The safety risks from radioactive wastes vary from very small, in short-lived, low-level wastes, to very large, for high level wastes.'23 The extent of the risks of radioactive wastes were summarised by in a UNCED document, 'Agenda 21,' as follows:
Annually about 2000,000m3 of low-level and mtermediate-level waste and about 10,000m3 of high-level waste (as well as fiiel destined for fmal disposal) is generated world wide from nuclear power production. These volumes are increasmg as more nuclear power units are taken into operation, nuclear facilities are decommissioned, and the use of radionuclides increases. The high level waste contams about 99 percent of the radionuchdes and this represents tiie largest radiological risk.124
The radioactive wastes are not biodegradable and can present hazards to human health
and the environment. Suspected radioactive contamination of foodstuffs has negative
effects on marketing of such foodstiiffs.i25
122 uSGS Science for a Changmg World, 'Pollution and Waste Disposal Contammation of tiie Arctic
Ocean Envfronment', Western Region Coastal and Marine Ecology,
1ittp://walrUSwrnsps.gov/do^':/rrniects/arctic.htinl. (Accessed 22 Febmary, 1999).
123 Sitarz D (ed), supra note 120 at 230.
124 Agenda 21, para 22.1
125 GPA, para 117, Environmental Policy and Law, 1996, Vol 26, No 1 at 47. -57- 2.9.2 (g) Summary
The discussion of 'types of contaminants' has disclosed that fitter is a widely recognised, and the most readily visible, evidence of LBSMP. Beach htter comprising, glass, metals, and other organic and inorganic materials, makes garbage a severe hazard in marine and coastal areas. Increasing levels of nutrients give rise to euthrophication and increasing volumes of sediments affect marine living resources. Input of oil from land-based sources as well as radioactive wastes are also presenting risks to marine life in coastal waters.
Conclusion
It has been shown through a number of studies on sources of pollution, that LBSMP is the dominant source of marine pollution. The forms of LBSMP are diverse with different types of activities and contaminants being responsible. Analysis of the types of causal activities has disclosed that pollutants sourced from households and agriculture are mainly responsible for deterioration of the marine environment.
Household pollutants usually end up with sewage, which is basically organic, but which may also contain a considerable level of inorganic materials including detergents and industrial wastes. Litter is also a significant category and is in large part household, in the sense of post-consumer waste. The effects of agriculture, along pathways of nm-off and aerial drift, increasing levels of nutrients and volumes of sediments, are affectuig the marine environment.
Usually LBSMP originate locally and their impacts are domestic. Therefore, primarily a local action and solution is requfred to control LBSMP. However, LBSMP also have limited tt-ans-boundary impacts and lesser cumulative impacts in sea-waters. For
-58- example, radioactive wastes and certain persistent organic pollutants have frans- boundary and cumulative effects respectively. They also do create damage to the marine
environment. Cumulative impacts are the sufficient evidence of fransportation of ttans-
boundary or global impacts. Although local solutions are important to confrol LBSMP,
the necessity of a global regime can not be mled out in this respect. A comprehensive
global regime is requfred to facilitate intemational cooperative action and thus
effectively control the LBSMP. Enhancing international sharing of resources and
commitments could contribute to successfiilly overcome specific management problems
that stand as obstacles and enhance national regional and intemational confrol of
LBSMP. Later, in this study (Chapter Eight) it will be sfressed that such attention and
commitment is best achieved in an effective global framework based on interlinking
cooperation.
59 CHAPTER 3: PROBLEMS AND ISSUES IN LBSMP CONTROL
3.1 INTRODUCTION
LBSMP are pervasive throughout the world, posing different highly specific problems, in different, geographic, ecological, social, economic, and scientific situations.' This diversity poses impediments to the intemational undertaking of remedial steps in
LBSMP contt-ol.2
The objective of Chapter Three is to examine, in detail, the specific problems and
issues which form obstacles in confrolling LBSMP. Particularly, the chapter identifies
and analyses scientific, economic and legal conceptual problems. It is necessary to
examine these as, without imderstanding the problems, solutions cannot be developed.
The failure of current intemational policy regimes to contiol LBSMP is largely due to
these obstacles. For example, scientific data is scarce and its gathering requires financial
support. Scientific uncertainties then flow on to prevent determination of a pollution
threshold limit in legal and policy formulations.
This chapter commences with an examination of scientific problems of LBSMP, and moves on to cover economic and legal conceptual problems. In relation to scientific problems, issues relating to data collection, identification of specific sources and
1 Dahl AL, 'Land-based Pollution and Integrated Management', Marine Policy, 1993, 561.
2 Gouilloud MR, 'Land-based Pollution', in Johnston DM (ed) The Environmental Law of the Sea,
(Switzeriand, 1981), at 230-31.
-60- detemunation of damage from land-based sources are critically examined. From an economic perspective, the perceived costs of LBSMP confrol are highlighted and discussed. It is acknowledged, in terms of legal pohcy planning that, LBSMP presents problems of establishing limit values or an acceptable threshold of envfronmental damage. This analysis results in the employment of certain concepts for an environmental threshold. Legal issues of territorial sovereignty linked with LBSMP
control internationally are also reviewed.
This chapter concludes that the scientific, economic and legal conceptual problems and
issues confronting control of LBSMP have required the adoption of innovative
management responses. These responses are then discussed in Chapter Four.
3.2 SCIENTIFIC AND TECHNICAL PROBLEMS OF LBSMP CONTROL
Through investigation, and on the basis of evidence, science resolves problems
concemed with observed matters of fact.3 However, in order to get those facts some
stmctured procedures are important. These procedures are also important from a
pollution confrol sfrategies point of view. For example, sufficient scientific data is
essential for precise assessment of pollution within the marine envfronment.
3 Science solves problems by defining tiie sitiiations under which it is valid to guess/conclude tiie
existence of 'unobserved matters of fact on tiie basis of evidence concerning matters of fact'.
(Sahnon WC, The Foundations of Scientific Inference, (University of Pittsburgh Press: Pittsburg,
1967) at 76.
-61- Scientific data is an indispensable basis for the confrol of LBSMP."* It involves a number of activities which aim to ensure that all relevant information is available and in this way it helps to undertake an appropriate strategy for pollution confrol. For example, a scientific data bank can provide useful information on the following:
• a complete listing of harmfiil substances that might be infroduced into the marine
environment;
• information on collation and identification of sources of LBSMP;
• information on pathways of distribution, patterns of persistence of bio-accumulation
and information about general effects and impacts of pollutants;
• determinationof damage; and
• location of available technologies for monitoring^ and controlling LBSMP.
The present discussion concentrates on lack of data for identification of sources of
LBSMP and determination of damage.
Men Qumg-nan, Land-based Marine Pollution: Intemational Law and Development, (Graham and
Trotinan, 1987), at35.
Monitoring aims at providing mformation on tiie sitixation of tiie envfronment, and its fmdmgs
usually form tiie basis of recommendations adopted by organizations for futiu-e stirategies to deal
witii specific envfronmental problems. [Beyerim U, (et al). Law Making and Law Enforcement in
International Environmental Law After 1992 Rio Conference, (Umweh Bundes Amt 1997), at 99],
There has been wide recognition tiiat some system of monitoring and reportfrig of national
performance is necessary to achieve effective control of LBSMP. [Caldwell LK, 'Necessary for
Organizational Change: Implementing tiie Rio Agenda of 1992', in Bartlett RV, (et al).
International Organizations and Environmental Policy, (Greenwood Press, London, 1995) at 33].
62 3.2.1 Lack of Data for Identification of Sources of LBSMP
Identification of all sources of LBSMP is very difficult. They are complex in nature.
They are numerous, diverse^ and largely invisible.^ LBSMP include pomt and non-
point sources. 'Point' sources of pollutants are easier to identify. They are typically the
effluents discharged by identifiable factories.^ They are end-of-pipe or chimney stack
sources which include waste water discharge and sewage.^ However, without any
scientific data it is very difficult to successfiilly identify non-point soiu-ces, except in
general categories, such as, 'world' climate change, deforestation and land
degradation. 10 All these indicate that in terms of non-point sources general solutions are
" Kuwabara S, The Legal Regime of the Protection of the Mediterranean Against Pollution from
Land-based Sources, (Tycooly Intemational Publishing Limited Dublin, 1984) at 72.
7 Gouilloud MR, 'Land-based Pollution', supra note 2 at 230-31.
^ Ruddle K, 'Pollution In the Marine and Coastal Envfronment of the ASEAN Countries', In Sien C L
and MacAndrew C, (eds), South East Asian Waters: Frontier for Development, (McGraw-Hill
Intemational Book Co: Smgapore, 1981) at 165.
9 Bates DG (ed), Butterworths Environmental Management and Law Dictionary, (Butterworths,
1997) at 157.
10 In relation to world climate change agriculture, forestry, and water resources deserve particular
attention. Erosion of soils, severity of floods and emission of carbon dioxide (CO^) are the main causes
of deforestation. Land degradation is caused by emission of fossil fuels, increased run-off of
precipitation and flooding, water-logging and salmisation, and mdiscrinunate availabihty of additional
land for agricultiural production. (See Tabemer J, 'Land-based Sources of Water Pollution: Regulation of
Non-Point Source Pollution m Austiaha', m Thomas P (ed) Water Pollution: Law and Liability, (Graham and Trotinan, 1993) at 112-14].
-63- available only for some general categories of activities. There is hardly any solution for those which are not identifiable.
3.2.2 Lack of Data for Determination of Damage
There are questions in regard to both tiie quantifying of environmental damage and the determination of the cause of damage for LBSMP. There are some situations where tiie cause of damage, amount of damage and categories of polluters can be deterrmned.
Pollution from identified point source discharges by chemical plants is an example in this respect. However, in most cases, it is virtually impossible to identify the amount of damage from harmful release or to estabUsh a proven link between source and the damage suffered.'^ The mobility of waters and pollutants means LBSMP can easily mix with moving waters. Since the seas are constantly mobile with currents, they can be used as a cheap and unaccountable way to hide land-based waste. The ease of concealment of scientific proof of responsibility for even point sources of LBSMP makes redundant the usual approaches to legal accountability.
As noted in Chapter Two, LBSIvlP is not only concenfrated in coastal waters, but also is often fransported far from point of entry to affect other states^2 There are some pollutants that are persistent and toxic in nature and they have a cumulative impact in oceanic waters. The effects of these pollutants are invisible and difficult to distinguish from those caused by other environmental factors such as natural levels of mercury in
11 Churchill RR and Lowe AV, Law of the Sea, (Manchester University Press, 3''' ed 1999), at 389.
12 See Chapter 2.8 supra
-64- the marine envfronment. ^^ xhe combination of these factors indicates the complex nature of this problem and the importance of adequate scientific research on these pollutants. Without scientific information and proper technology it is very difficult to undertake a preventive and remedial measure to tackle the cumulative effects of
LBSIMP. Due to scientific uncertainties, cumulative dispersed impacts of LBSIVIP in oceanic waters remain a problem. However, there is little possibility to overcome the problem without solving inter-related issues, i.e. socio-economic problems. Adequate scientific measures can only be undertaken if they are economically feasible and socially acceptable. ^^^ A comprehensive stiategy of cooperation is therefore required as a solution to this problem.
3.3 ECONOMIC PROBLEMS OF LBSMP CONTROL
In a conflict between industrial production processes and marine environmental uses, producers want to avoid environmental costs and so tiy to pass them on to the users of the marine envfronment through an extemalisation process.i^ This does not ensure the
13 Myers H, 'Changing Envfronment, Changing Times: Envfronmental Issues and Pohtical Action in
Canada North', Environment, 2001, Vol 43, No 6 at 40.
14 Meng Quing-nan, supra note 4 at 58. See also Chapter 7 infi-a.
15 In economic terms it is called external diseconomy, or sfrnply externality. (Reed KR, Notes:
Economic Incentives for Pollution Abatement: Applying Theory to Practice, Arizona Law Review,
Vol 12, 1970) at 514. This sitiiation arises because of a traditional understandmg that sea water is
viewed as a free good within the market economy.
-65- maximum benefit from resources, best alternative beneficial uses of resources,'^ or optimal allocation of resources. ^^
Due to economic reasons, there is a clear difference in terms of control measures of
LBSMP between developed countries and developing countries or countries in economic transition. Developing countries or countries in economic transition are not willing to undertake the perceived high cost of addressing LBSIVIP, which they fear may restrict their industrial development, i^
There is a perception that LBSMP control measures may have deleterious effects on a national economy.^^ Because of the associated costs20 it is assumed that pollution confrol programs inhibit economic grovv1;h.
16 Economics is the science that studies human behaviour as a relationship between ends and scarce
means which have alternative uses, Lowe J and Lewis D, The Economics of Environmental
Management, (Allan P, Oxford 1980) at 1.
17 Cote RP (et al), 'Social, Economic, Institiitional and Legal Considerations m tiie Management of
Land-based Marine Pollution', m Wells PG, (et al) (eds), Canadian Conference on Marine
Environmental Quality: Proceedings, (The Intemational Institiite for Transportation and Ocean
Policy Stiidies: Halifax, 1988) at 62.
18 Goering KW, ' Mediterranean Protocol on Land-based Sources: Regional Response to a Pressmg
Transnational Problem', Comell Intemational Law Joumal, 1980, Vol 13 at 332. See also Chapter
7.5 infra.
19 Reed KR, supra note 15 at 511 -542.
20 Pollution confrol mvolves two kinds of costs: fnstly, tiansitional costs, which involve tiie adoption
of existing plant and equipment, management practices, technology, and labour and consumption
pattems in ways that reduce damage to tiie envfronment and (probably) tiie cost of envfronment-
friduced shifts m tiie location of productions. Secondly, recurring costs, which requfre more resource
-66- A number of competing issues, such as the varying interests of different social and pohtical groups, the balance between environment and development and disttibution of public wealth, often lead to internal pohtical conflict in dealing with LBSMP confrol measures.
In relation to trans-boundary impacts, developuig coimtries are even less mterested in the protection of the common interest of the world conimunity.21 Independence to pursue their own interests is of particular concem to developing countries, where priorities are driven by poverty and debt servicing. They may favour development at the expense of responsible environmental management.22 Li this respect, Kyba P, a
Canadian environmentalist has observed:
Nation-states remain the principal actors on the intemational stage, and thefr major objectives continue to be national in scope rather than intemational, despite the emergence of problems incapable of solution by individual nations acting alone. Intemational relations continue to be valued primarily in national terms, with the result that common intemational goals have not been able to develop. The impact of nationahsm on modem man has been so great that he has lost sight of the fimdamental unity of his species.23
inputs per unit of output or consumption, or, less use of resources in order to avoid envfronmental
spill overs. (Men Quing-nan, supra note 4 at 40).
21 Okidi CO, Regional Control of Ocean Pollution: Legal and Institutional Problems and Prospects,
(Sijhoff andNoordhoff: The Netiierlands, 1978) at 2.
22 Ntambirweki J, 'The Developing Countiies in the Evolution of an Intemational Law', 14 Hastings
International and Comparative Law Review, 1991 at 905.
23 Kyba P, 'Problems of Intemational Environmental Regulation', in Dwivedi OP (ed). Protecting the
Environment (Vancouver, Copp Clark, 1974), at 284.
-67- This comment is applicable to LBSMP confrol. The perceived costs of LBSMP confrol on national economic development imdermine efforts to work together for common purposes on this issue.
3.4 LEGAL CONCEPTUAL PROBLEMS OF LBSMP CONTROL
LBSMP confrol issues face problems from the legal conceptual point of view.
Particularly problematic, given the pervasiveness of LBSMP, is conceptuahsing an acceptable pollution load and the threshold at which it becomes unacceptable. That threshold defines the legal boundary between acceptable contamination and unacceptable pollution. However, many factors affect the drawing of the boundary line, including the type of contaminant, economic priorities and social consensus.
3.4.1 Threshold of Trans-boundary Environmental Damage
Contamination of sea-water causes pollution when it alters the condition of waters in such a way that is made noxious, poisonous, harmful to marine resources and marine hfe and other legitimate uses of the sea.24
It is envisaged that for pollution to occur, contamination must exceed a threshold of acceptable harm.25 However, in terms of the level of contamination considered as acceptable pollution, no threshold is yet clearly defined. General terms such as
'deleterious effects', 'harm', 'hazards' and 'impairment' have been used. These seem to
24 See the defmition m Article 1(4) of LOSC in Chapter 2.5 supra.
25 Sands P and Bruce M (eds), The Antarctic Environment and Intemational Law, (Graham and
Trotoian, London, Boston, 1992) at 75.
-68- presume that a level of unacceptable pollution can be identified and anticipated.
However, intemational law is unclear as to how this might be done.
hi legally binding regional agreements specific standards are prescribed to prevent
pollution by specified contaminants.26 However, at the global level no specific
preventive standards are prescribed. Instead, the general approach adopted focuses on
unacceptable damage.
Springer identifies five conceptiial categories in mtemational law for defining
pollution.2'7 These are the:
1. Absolute Purity Approach;
2. Territorial Sovereignty Approach;
3. Damage Approach;
4. Interference Approach; and
5. Assimilative Capacity Approach.
The 'Absolute Purity' approach describes pollution as any alteration of the existing
environment; the threshold of pollution is zero according to this approach. The most
significant example of this approach is the 1929 agreement between Germany and
Belgium regarding certain environmental responsibilities on the frontier between the two countries. In this agreement a clause lays down;
2" See Chapter 6 infra.
27 For details see Springer AL, The International Law of Pollution, (Quorum Books, 1990), at 64-79.
-69- ... In no case it is permissible to let water injurious to pubhc health flow into sfreams and ditches.28
The 'Territorial Sovereignty' approach allows any degree of enviromnental change
(uicluding damage) withm its borders as a right of territorial sovereignty. For example, the Harmon doctrine argued that envfronmental pollution is a right of the territorial sovereign.29 Professor Weiss notes 'states have fraditionally asserted the right to pollute
at self-determined levels'.30 However, according to the principles of fritemational law basic duty incumbent on states is to act so as not to harm the interests of other states.^'
Given the trans-boundary nature of pollution this generalises an intemational obligation
of pollution confrol. Pollution by the territorial sovereign is acceptable to the extent that
such pollution will not affect other states.32 Pollution, which will substantially impafr
28 LNTS, Vol 21, No 795, Article 60(2) at 361 (cited m Springer AL, ibid at 65).
29 In relation to giving a response to the Mexican protest of the US diversion of the waters of the Rio
Grande, US Attorney General Judson Harmon found that there is no principle in international law
tiiat can prevent the US from, or make it liable for, 'such' kind of diversion. (21 OPS Attorney
General, 274, 283 (1895), 1 Moore Digest of Intemational Law, 1906 at 654.
30 Weiss EB, 'International Envfronmental Law: Contemporary Issues and the Emergence of a New
World Order', Georgetown Law Journal, 1993, Vol 81 at 702.
31 Rayfuse R, 'International Envfronmental Law', fri Blay S, Piortowicz R and Tsamenyi M (eds), in
Public Intemational Law - An Austi-alian Perspective, (Oxford University Press, 1997) at 361.
Given tiie tians-boundary nature of pollution, it is an mtemational obhgation of states to prevent
pollution. The breach of tins intemational obligation will incur responsibility. For discussion on
State responsibility see Chapter 5.2 infra.
32 See Chapter 5.2 infi-a.
-70- the territorial or common use of sea-waters by other states therefore a hmit on territorial sovereignty.33 Any breach wiU incur State responsibility. The fimdamental issue therefore continues to be an undefined 'threshold' of pollution.
The 'Damage Approach' recognises the acceptabihty, to some extent, of trans-boundary damage to the environment. One of the examples of this approach can be found in the
1969 International Convention Relating to Intervention on the High Seas in Cases of
Oil Pollution Casualties which states Parties are allowed to act only against:
... grave and imminent danger to their coastline or related interests from pollution.. .^^
Another example of this approach is to be found in the United Nations Convention on the Law of the Sea (LOSC). States can take actions against any activities in the territorial sea, or, the Exclusive Economic Zone (EEZ) causing major damage, or, threat of major damage, to the coastline, or, related interests of the coastal states, or, to any
33 In this context, the rationale spelled out m the Frontier Treaty, 1960, concluded between tiie
Netherlands and the Federal Republic of Germany and fri the case of New Jersey v New York
(1931), is relevant to marine envfronmental pollution. Article 58 of the Frontier Treaty, 1960,
obliges states to take steps to prevent such excessive pollution of boundary waters as may
substantiaUy impafr the customary use of the waters by the neighbouring State, and in the New
Jersey v New York (1931) Case, Justice Hohnes states:
'A river is more than an ameruty, it is a freasure. It offers a necessity of life that must be rationed
among those who have power over it. ... Both states have real and substantial interests in the river
that must be reconciled as best tiiey may be. The different traditions and practices in different parts
of the country may lead to varying results, but the effort is always to secure eqmtable apportionment
witiiout quibbling over formulas.' New Jersey v New York, 283 US 342-343 (1931).
34 9 ILM, 1970, Article 1(1), p 9, 25, (cited in Sprmger, supra note 27) at 71.
-71- resources of its territorial sea, or, EEZ.35 Here, the thresholds are high-grave or major damage.
The 'Interference Approach' focuses on various uses of the environment that may cause changes to water quality. The 1960 Frontier Treaty between the Netherlands and the
Federal Repubhc of Germany can be cited in this respect. Article 58(2)(e) requires both
Parties to take steps:
... to prevent such excessive pollution of the boundary waters as may substantially impair the customary use of the waters by the neighbouring state.^^
Here, the threshold is substantial impairment of use.
The 'Assimilative Capacity' approach meanwhile, defines pollution as occurring when the assimilative capacity of the body of water is exceeded. Although this approach implies a high threshold, it does not provide any sufficient basis as to an intemational concept of pollution. 37
However, these approaches provide little positive guidance in determining a globally accepted pollution threshold as no constant view of a pollution threshold is to be found.
The territorial approach implies an infinite threshold within a State's territory, as pollution is a sovereign right. The interference approach and the damage approach
35 LOSC Article 220. For details on LOSC see Chapter 5.3.2.2 infra.
36 Cited in Barros J and Johnston DM, International Law of Pollution, (New York, London, 1974) at
158. See also Springier, supra note 27 at 73.
37 Jackson sees tifrs approach as overioading of natiiral cycles by human activities. See Jackson,
'Dunensions of Intemational Pollution', Oregon Law Review, 1971, Vol 50 at 242.
-72- unply a very broad variability for what degree of interference and what kind and level of dmnage will constitute pollution. The same type of threshold is reflected m tiie assimilative approach but it is difficult to determme the assimilative lunit. On the otiier hand, the 'absolute purity' approach is unrealistic. It does not allow for a threshold tiiat depends upon a particular level of damage, as even the shghtest atteration in the existing envfronment is not acceptable.^s Nevertheless, some of the conceptual categories set out by Springer do provide a starting point for further thinking about a globally acceptable pollution threshold. Although the 'Interference' and 'Damage' approaches imply a very broad variability, they can launch a useful discussion in any regional and intemational fomm on environmental pollution control.
However, to date, no concrete legal definitions have emerged to deal with the threshold issue. This creates difficulties in imposing post-hoc liability on states when they damage the marine environment. Nor yet have global LBSIVIP pollution prevention standards been established. This is due to the fact that a globally acceptable framework by which such standards can be determined confronts the economic obstacles^^ mentioned in section 3.3.
3.4.2 Resistance to Restriction of Sovereignty
There seems to be an acknowledgment that LBSMP control is fundamentally a matter of
'national' concem. LBSMP arises from an area that is under the sovereignty of a
38 Springier, supra note 27 at 64.
39 Weiss EB, 'International Environmental Law: Contemporary Issues and the Emergence of a New-
World Order', Georgetown Law Journal, 1993, Vol 81 at 704.
-73- State.40 Intemational contiols on LBSMP could lunit the sovereignty of states, which include rights to confrol LBSMP within their territory as they see fit.^i
Owing to the fact LBSMP generally occur in the coastal zone, i.e. m waters under a coastal State's national jurisdiction,42 the bulk of LBSMP regulations are to be found in national legislation as: ^3
^0 The term sovereignty is a complex and poorly defined concept, as it has a long froubled history, and
a variety of meanings (Crawford J, The Creation of States in International Law, Clarendon Press,
Oxford, 1979) at 26. For example, Hossain identifies three meanings of sovereignty: 1. State
sovereignty as a distinctive characteristic of states as constituent units of the intemational legal
system; 2. Sovereignty as freedom of action in respect of all matters with regard to which a state is
not under any legal obligation; and 3. Sovereignty as the minimum amount of autonomy which a
state must possess before it can be accorded the status of a sovereign state (Hossain K, State
Sovereignty and the UN Charter (Oxford, MSD Phil D, 3227, 1964) (quoted from Crawford J, ibid)
at 27. However, generally sovereignty can be defined as 'supreme authority - independent of any
other earthly authority - it implies independence all round, within and without the border of the
country' (Oppenheim L, Intemational Law, (Longman: London, 8* ed, 1955) at 118-119. The
learned Max Huber, Arbitiator fri the Island of Pahnas Arbitiation, states: 'Sovereignty, in the
relation between states, signifies independence. Independence in regard to a portion of the globe is
the right to exercise therein, to the exclusion of any otiier state, the fimction of a state.' (22
American Joumal of Intemational Law, (1928) 875). It is to be noted, altiiough tifrs idea about
sovereignty is derived mainly from tiie writmgs of Bodin, (a French jurist of the 16th century), tiiese
assertions are to be found before Bodin's time. An example of this is in Justinian's Institute and in
the Middle Ages Chmxh - State conflicts for sovereign power. (For details see Huntington JF,
Sovereignty: An Inquiry into the Political Good, (University of Chicago Press, Chicago, 1959,
Chapters 10-12).
41 Cuyvers L, Ocean Uses and Their Regulation, (John Wiley and Sons, New York, 1984) at 106.
-74- a) domestic waters are close to the shore and domestic fisheries, tourism and other coastal activities are primarily affected by noxious releases, providing an incentive for national action;
b) LBSMP is produced from sources within the territory of individual states;
c) it is difficult to find a common groimd for the development of law on LBSMP;44 and
d) in general there exist difficulties in intemational confrol and regulation of LBSMP.45
However, this predominance of national controls has raised problems in relation to
LBSIvlP confrol at global level. Trans-boundary and cumulative impacts of LBSIVIP have pushed intemational communities to work together for common purposes of
LBSMP confrol.
Sovereignty questions pervade intemational cooperation for confrol of LBSMP. In accordance with historical variations in social and cultural contexts, the meaning of
'sovereignty' has undergone many changes. It has become accepted that sovereignty is
42 Ross DA, Introduction to Oceanography, (Prentice Hall, Inc, 2nd ed, 1977) at 346. For defmition
see Chapter 2.1 supra.
43 Even during the Thfrd Law of the Sea Conference, national action rather than intemational action
got the preference in terms of confrol of LBMP from coimtries like Canada, which has tiaditionally
canvassed for comprehensive marine pollution measures. (Pearson CS, Intemational Marine
Environmental Policy: The Economic Dimension, (John Hopkins Uruversity Press, 1975) at 61.
44 Although there are common grounds for development of regional laws.
45 This issue has been explained in different ways. For details see Tunagenis GRJ, Intemational
Conti-ol of Marine Pollution, (Oceania Publications, fric, 1980) at 16-17; see also, Churchill R and
Lowe A, supra note 11 at 379.
-75- not absolute or unlimited in scope. For instance, the mles of intemational law, as indefinite and uncertain as they might be, are seen as setting hmits on the sovereignty of a nation.46 This is a departure from the concept of absolute sovereignty. Viscount describes this situation as follows:
It is obvious that for sovereignty there must be a certain amount of independence, but it is not in the least necessary that for sovereignty there should be complete independence. It is quite consistent with sovereignty that the sovereignty may in certain respects be dependent upon another power; the confrol, for instance of foreign affafrs may be completely in the hands of a protecting power, and there may be agreements or freaties which limit the power of the sovereign even in internal affafrs without entailing a loss of the position of a sovereign power.'*^
A profound change in sovereignty occurred early in the 20"^ century with the emergence of the 'restricted sovereignty' doctrine. The initial view of this concept was concisely summarised in an early decision of that century:
The fimction of sovereignty in a state is neither unrestricted nor unlimited. It extends as far as the sovereign rights of other states ... a state may not claim more than such independence and liberty as is compatible with the necessary organization of humanity, with the independence of other states, and with the ties that bind states together.'*^
Commentators have further explained this issue:
46 Johnston WR, Sovereignty and Protection: A Study of British Jurisdictional Imperialism in the Late
Nineteenth Centiuy, (Duke University Press, Durham, NC, 1973) at 5.
47 Viscount Fmally in Duff Development Company, Lunited v Government of Kelantan, (1924) AC
797 at 814, quoted from Johnston WR, Sovereignty and Protection: A study of British Jurisdictional
Imperialism in the Late Nineteenth Century, at 5-6.
48 El Salvador v Nicaragua (Cential American Court of Justice), American Journal of Intemational
Law (1917) 674 at 718.
-76- [N]o state is entitled to invoke the plenitude of its internal sovereignty... as the basis for freedom of action, unrestiained by law, in the intemational arena. By the very natiire of tiie uitemational society, by the mere fact tiiat no state is entfre of itself, by the interdependence, which is as inherent in the coexistence of states as it is in the social nature of man, every state is boimd by the law of nations....^^
Because of the emerging environmental crises, the notion of principle of intemational environmental responsibility has received widespread acceptance, and the concept of sovereignty made some concessions in favour of the common good of all nations. The former Ausfralian Ambassador for the Envfronment to the United Nations stated:
The concept of absolute sovereignty of states will have to make concessions as never before in face of today's emerging crisis. There will have to be a high degree of willing subordination of national sovereignty in favour of the common good of all nations.^°
The notion of restricted sovereignty is appropriate in the area of LBSMP control.
Although LBSMP are produced from the territory of a particular State and principally
fall within State waters (such as internal waters and territorial seas) where states have
sovereignty, marine environmental damage arising from thefr sources do not remain
confined to those zones only. Such damage also affects resources beyond the national jurisdiction, for example, tiiose under foreign jurisdiction, or in tiie global commons.^i
49 Larson and Jenks (eds). Sovereignty Within the Law II (1965) at II.
50 Stephen Sir N, 'The Growth of Intemational Envfronmental Law', Environmental and Planning
Law Joumal, 1991, Vol 8 at 185.
51 The global commons encompass territory which is beyond the State jurisdiction, such as tiie oceans,
and outer space, and global commons resources mclude marine resources. The global commons are
defined as areas 'beyond tiie jurisdiction and sovereignty of any state, but, [which] exist for tiie
common benefit of all' (Boyle AE, 'State Responsibility for Breach of Obhgations to Protect tiie
Global Envfronment', m Butier WE, (ed), Conti-ol over Compliance with International Law (1991)
-77- Therefore, LBSMP control measures should be undertaken in hght of ecological
considerations, rather than political boundaries. In order to give effect of this approach,
negotiation and cooperation at global and regional level, need to be enhanced.
3.5 CONCLUSION
This discussion mdicates that the problem and issues faced in the confrol of LBSMP are
scientific, economic, and legal. The lack of scientific data for identification of scattered
sources and causation of damage from land-based soiuces create confrol problems at national, regional and global levels. The need to work together to tackle the cumulative impact of dispersion of LBSMP beyond national maritime boimdaries is not compelling due to scientific uncertainties. No guidance is provided as to significant or unacceptable damage from a legal conceptual point of view. Competing socio-economic demands challenge LBSMP control measures from an economic point of view.52 These competing interests are causing difficulties in working together internationally for the common purpose of LBSMP confrol.
Since management problems, i.e. scientific, economic and legal, are confronting
LBSMP confrol, they need to be solved. In this respect it is important to redesign and improve intemational approaches to confrol LBSMP. Such approaches should be comprehensive, cooperative and innovative in order to address scientific and economic needs, and should be sensitive to sovereignty concems. As a response to this problem
at 69, referring to the practice of activity which 'physically affects human beings around the world'.
(Levin HJ, 'Regulating the Global Commons: A Case Study', Res in Law and Economics, 1989, Vol
12 at 252.
52 The case study in Chapter 7 will demonstiate how the human dimensions remain as obstacles to the
implementation of legal institutions for LBSMP conttol. -78- intemational sustainable management principles have been advocated. Chapter Four deals with these issues.
79- CHAPTER 4: INTERNATIONAL PRINCIPLES FOR LBSMP MANAGEMENT
4.1 INTRODUCTION
Social changes, scientific discoveries and technological innovations smce tiie 1960s have led to the emergence of intemational principles for sustainable development relevant to the management of land-based sources of marine pollution (LBSMP). These principles advocate strategies and programs for the sustainable management of natural resources. For example, if marine and coastal environments are to be managed in an integrated and sustainable manner, principles such as environmental impact assessment
(EIA), precautionary polluter pay and cleaner production should be applied. In this way, few, or, at least fewer, harmful substances would be infroduced into the coastal waters. Because of thefr usefulness, sustainable development principles have been accepted by the intemational community and incorporated in different intemational instruments, for example, the Rio Declaration Chapter 17 of Agenda 21' and the Global
Program of Action for the Protection of the Marine Environment for Land-based
Sources 1995 (hereinafter GPA).2 However, the application of these management principles is not free from complications, and they are debated from both conceptual and practical points of view. These principles are essentially guidehnes for sustainable development independent of the intemational regulatory framework analysed m
Chapter Five. Regulatory frameworks are legally binding agreements entered into
1 Agenda 21 was adopted as part of the Rio Declaration in tiie United Nations Conference of
Environment and Development (UNCED) in Rio de Janefro (1992). For details see Chapter 5.4.3
infra.
2 Global Program of Action for tiie Protection of tiie Marine Envfronment for Land-based Sources
1995, para 22. See Chapter 5.4.4 infi-a.
-80- between states. Regulatory framework contains a system of rules, obligations and rights together with technical and administrative measures.
The objective of this chapter is to describe how intemational sustamable development principles can be used as benchmarks for assessing the adequacy of existing intemational law for LBSMP control. The chapter provides an overview of applicable sustainable development principles and the ways in which they can reduce and control
LBSMP. It also discusses the technological and economic imphcations of apphcation of the management principles in the context of LBSMP. The benchmarks outlined in this chapter will be used as criteria to assess the adequacy of existing legal regimes of
LBSMP control in following chapters.
The chapter commences with a discussion on sustainable development. The concept of sustainable development for marine and coastal environment is argued as a prelude to a discussion of specific principles ensuring sustainable development. The issue of integrated coastal zone management (ICZM) follows next. Intemational instruments linked to ICZM are presented, followed by a discussion of ICZM complexities. The envfronmental impact assessment (EIA) mechanism, its scope, the role of EIA in
LBSMP confrol, and the applicability and limitations of the EIA are studied next.
Following this, apphcation of the 'precautionary principle', the 'polluter pays principle', and the framework of 'cleaner production' and their possible implementations in
LBSMP confrol are considered.
Chapter Four ends on the note that, despite some shortcomings, the intemational principles of sustainable development discussed have been well received by the intemational community. Providing tools for the management of LBSMP confrol, in turn, they have contributed to the gradual development of an intemational legal regime of LBSMP contt-ol. 4.2 SUSTAINABLE DEVELOPMENT OF MARINE AND COASTAL ENVIRONMENT
Sustainable development is:
... development that meets the needs of the present without compromising the ability of futmre generations to meet thefr own needs.-'
The term 'sustainable development' appears to have been first infroduced in a 1980 report by the Intemational Union for the Conservation of Nature and Natural Resources
(lUCN). It was, however, the Brundtland Report^ that brought the concept to the top of the agenda, with institutions such as the United Nations and the World Bank:.^ Since the report's release, the goal of sustainable development has been adopted by an ever- increasing number of organisations and bodies^ and has received general acceptance as one of the important principles of intemational environmental law.
3 World Commission on Environment and Development, Our Common Future, (NY: OUP, 1987)
(tiie 'Brundtiand Report'), (subsequently our common fiitiu-e) at 8.
4 World Commission on Environment and Development (WCED), ibid 1987.
5 Cole MA, 'Limfrs to Growth, Sustamable Development and Envfronmental Kuznets Curves: An
Examination of tiie Envfronmental Impact of Economic Development', Sustainable Development, 2
May 1999, Vol 7, No 2 at 90.
6 Cole MA, ibid. For example, sustainable development became tiie cential tiiemeo f tiie 1992 Eartii
Summit held m Rio de Janefro and appeared tiuoughout tiie Rio Declaration. However, as an aspect
of sustainability, tiie sustainability concept has been used m different ways by different bodies, e.g.
lUCN has used tiiis term in reference to sustainable use, sustainable society and sustainable
economy.
-82- 4.2.1 Sustainable Development and LBSMP control
One of the causes of unsustainable use of ocean ecosystems is marine pollution."^ In the marine sector, sustainable development requires maintaining a clean ocean environment suitable for rational management and optimum utilisation of marine resources.^ Thus, the use of oceans in a sustainable manner is useful for the minimisation of marine pollution.
Such use and management involves, amongst other things, the improved control of industrial, agricultural and domestic waste, the development of contingency plans for dealing with accidents harmfiil to the marine and coastal envfronment, and the use of living resources without over-exploitation.^
Chapter 17 of Agenda 21 notes the importance of oceans and coasts in the global hfe support system as well as the positive opportunity for sustamable development in marine and coastal pollution confrol.^o Since the UNCED urged the sustainable use of the marine environment for ocean and coastal management 'the duty to protect the marine environment from land-based activities (LBAs) has been placed squarely m the context of sustainable development'.^^ This development has been explicitly endorsed
7 Soares M, The Ocean Our Future, The Report of tiie Independent Worid Commission on tiie
Oceans, (Cambridge University Press, 1998) at 113.
8 Dzidzomu DM, 'Four Prfriciples in Marine Envfronmental Protection: A Comparative Analysis',
Ocean Development and International Law, l99^,No\19 No 2 at 97.
9 UNEP Regional Sea Programme, Soutii East Asia Region, at 7-8.
10 Agenda21,paral7.19.
11 The GPA, para 9. -83- in declarations and policy statements of numerous intergovernmental conferences and intemational organisations.
4.2.2 Economic Implications of Sustainability and LBSMP Control
The principle of sustamable development is founded on tiie concept of harmony
between environmental protection and economic development. Principle 4 of the Rio
Declaration provides:
In order to achieve sustainable development, envfronmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.
Sustainable development requires effective measures to change both the content and the
quality of grov^h, and equally sfrong measures to ensure a more equitable distribution
of the proceeds of growth, nationally and intemationally.^2 xhe Brundtland Report
notes, sustainable development will requfre:
... a process of change in which the exploitation of resources, the dfrection of investments, the orientation of technological development and institutional change are made consistent with fiiture as well as present need ...'^
With regard to the oceans, development requires organisational and managerial procedures and equipment, human resource development, the availability and
accessibility of scientific information, and fmancial and technological assistance. But above all, the 'political will' to translate policies into action, is cmcial. Agenda 21 cites
some of the obstacles to sustauiable development and urges developed states, and
12 MacNeill J, 'Envfromnent and Development', IP, May-June 1988, Vol 17, No 3 at 6.
13 Our Common Futiire, supra note 3 at 46.
-84- intemational fimding organisations, to provide assistance in enabling developing states to address environmental change, mitigate negative impacts, and reduce the threats posed to marine and coastal resources.'"^ The United States Vice-President at the time acknowledged the need to improve the fkiancing of sustainable development:
Heads of nations must commit themselves to improving overseas development practices to ensure that the projects are sustainable. One of the best ways of doing this is to increase the ttansparency of lending practices so that local communities and non-governmental groups have the opportunity to commit on proposals.^^
Many countries depend on sources of income from the very activities that would be directly threatened by LBSMP. Fishing and tourism are two obvious examples in this respect. However, legal and institutional arrangements are poor in many countries m regard to sustainable use of resources and the protection of the marine and coastal environment from pollutioni^. Improvement in this situation requires mtemational and regional cooperation. Active participation and cooperation of the NGOs and local communities are also significantly important in this context. 'Sustamable development' is linked to ICZM. This link is explored ui the next section.
14 Agenda 21 para 17.128. (tins provision is related to tiie special case of small island developing
countiies).
15 Gore Senator A (tiien Vice President of tiie USA), 'Life Beyond tiie Earth Summit', The Financial
Times, 20 J\xne\992.
16 Chapter 7 infi-a is an example m this respect.
-85- 4.3 INTEGRATED COASTAL ZONE MANAGEMENT (ICZM).
The coastal zone is seen as encompassing those areas of the sea, land, and waterways, in close proximity to the coastline, including offshore islands.i7 Most LBSMP is concenfrated in this zone.i^ The Organization for Economic Cooperation and
Development Environment Directorate (OECD) has defined ICZM as:
... management of the coastal zone as a whole in relation to local, regional, national and intemational envfronmental goals. It imposes a particular focus on the interaction between the various activities that occur in the coastal zone and between coastal zone activities and activities in other regions.'^
ICZM can, consequently, be described as a continuous and dynamic process by which decisions are made for the sustainable use, development, and protection of coastal and marine areas and resources.20 In an era of changing beliefs, behaviour and social infrastmctures, ICZM has emerged as a new approach for dealing with the many inter-
17 Singer P and Wright P, 'Coastal Management Pohcy Considerations', fri Davie JDS (et al). Coastal
Zone Management in Northern Australia, Proceedings of a Workshop held in conjunction with the
Conference on Coasts and Tidal Wetiands of the Austiahan Monsoon Region, Darwin, (Nov 1984),
at 27. In general, coastal zones include coastal waters and all areas to the landward side of those
waters. See also note 2 of Chapter 2, supra.
1 ^ See Chapter 2, supra.
19 OECD Envfronmental Dfrectorate, Envfronment Committee (1991), Report on Coastal Zone
Management: Integrated Policies and Draft Recommendation of the Council on Integrated Coastal
Zone Management, Paris, drafted 16 October, 1991 at 37.
20 Cicin-Sain B and Knecht RW, Integrated Coastal and Ocean Management: Concepts and Practice,
(Island Press, Washington DC, 1998) at 39.
-86- connected problems of coastal zone management. It has been realised by coastal communities and coastal managers that ad hoc decisions have often resulted m imwise pohcy choices. This has resulted in the degradation of coastal and marine environments by increased beach/coastal erosion, nutiient flows, mn-off, sewage and litter pollution.
This situation indicates, rather than employing ad hoc and uncoordinated measures, decision-makers should decide and act in a coordinated, integrated way to reduce costs and minimise the losses that resuh from duplicative, short-term management decisions.2i
Economic sectors including maritime and natural resource interests, tourist, and conservation interests, fimction in the coastal zone. In hannonising22 and balancing these interests with the natural coastal system,23 ICZM seeks to unify policy
^1 In 1993, Ausfralia's Resource Assessment Commission's (RAC) Inquiry into the Coastal Zone,
examined, in detail, reports since the 1980s and considered several inquiry reports and
recommendations on coastal issues between 1960 and 1980. This commission concluded that
coordination and integration are needed to overcome the short term and fragmented approach to
management, which under ties continuing problems of degradation of the coastal zone. (Resource
Assessment Comimssion, Coastal Zone Inquiry Final Report, Commonwealth of Austiaha,
Austiahan Government Publishmg Service, 1993).
22 Para 4 of the preamble to Kuwait Regional Convention for Cooperation on the Protection of the
Marine Envfronment from Pollution states that there is a, 'need to develop an integrated
management approach to the use of the marine envfronment and the coastal areas which allows the
achievement of envfronmental and development goals m a harmonious manner'.
23 Kildow J, 'The Roots and Context of the Coastal Zone Management', Coastal Management, Vol 25,
No 3, 1997 at 254. Preparation for tiie United Nations Conference on Environment and
Development (UNCED) began in tiie late 1980s and this preparation process creates a scope for
further titinking on coastal zone management concept. At tiiis stage United Nations Organizations,
mcluding tiie Food and Agricultiu-al Organization (FAO), have submitted research papers (e.g.. -87- components across the board to achieve comprehensiveness, aggregation and consistency.24
4.3.1 ICZM and LBSMP Control
In relation to LBSMP control, an Austrahan Government report states:
Over 80% of marine pollution affecting our seas and oceans originate on land. That is why we need an integrated policy approach to our coastal areas, seas and oceans if we are to miiumise the ocean pollution.25
research paper No 4, Development of Coastal Areas and Enclosed Seas) on coastal zone
management to the UNCED Secretariat in 1991. As a necessary component to manage the world's
coasts this concept on coastal zone management was referred to as 'integrated coastal zone
management' by the analysts, (for details see Scura LF, Chua TE, Pido MD and Paw JN, 'Lessons
for Integrated Coastal Zone Management: the ASEAN Experience', in Chua TE and Scura LF (eds),
ICLARM Conference Proceedings 37, (Intemational Centie for Living Aquatic Living Resources:
Manila, 1992).
24 Integration in coastal management may embrace a number of dimensions: intergovernmental,
geographical (land-water interface), intersectional and interdisciplinary. This improved management
will save marine envfronments and, at the same time, help the healtii of coastal commuruties.
Because the health of coastal communities depends on the health of coastal ecosystem, the
economic aspect is for an ecologically sustauiable marine-based uidustry which will promote
investment, employment and economic returns.
25 Commonwealth of Ausfraha, Austi-alia's Oceans New Horizons - A Commonwealth Agenda, 1997
at 3. It should be noted, Austtalia is part of the worid's great oceans and ecosystems, from tiie
Torres Sttait to Antarctica. Therefore, in relation to coastal management issues, an Austialian view
is important. Through the adoption of an ICZM approach, benefits can be expected in the coordination of research efforts, the harmonisation of norms and criteria for discharge contiols, the standardisation of data and procedures, and in other benefits.26 Within this framework, projects with imacceptable potentials for pollution would be discouraged, or modified, to a level of acceptability and conformance within specified standards.2'7 For example, ICZM might also be helpfiil in guiding the management of activities resulting in such diffuse sources of pollution as, run-off from farms, forest clearing, and city sfreets.28
In preparation for UNCED, the United Nations Environmental Programme (UNEP) developed a sfrategy in 1991 for the reduction of the degradation of the marine environment from land-based sources and coastal area activities.29 In conformity with this strategy, UNCED's Agenda 21 addressed the problems created by LBSMP^o and emphasised the importance of maintaining environmental mtegrity through the
26 Gouilloud MR, 'Prevention and Contiol of Marine Pollution', in Johnston DM (ed), The
Environmental Law of the Sea, 1981 at 245. In terms of integrative management, Pitts' approach
mcludes: desfrabihty of estabhshmg broad objectives, need to secure coordmation in pursmt of
shared goals, local area involvement in pohcy formation, and program design and caution against
over-long and over-complex decision makmg processes and institutional arrangements. (Pitts D,
Analysis of Sti-ategic Planning Processes and Initiatives for Coastal Zone Management. Resource
Assessment Commission Consultancy Report, Commonwealtii of Ausfralia, (1993) at 53.
27 Clark JR, Coastal Seas the Conservation Challenge, (Backwell Science, 1998) at 41.
28 ClarkJR,/6zWat41.
29 Dhal AL, 'Land-based Marine Pollution and Integrated Coastal Management', Marine Policy, 1993,
Vol 17 at 564. UN Doc. UNEP (OCA)/WG.14/3 (1991).
30 Agenda 21, Chapter 17.
-89- management of oceans and adjacent coastal areas.^i FoUowmg the Agenda 21 Action plan, the Noordwijck Guidelines for Integrated Coastal Zone Management, and the
Global Programme of Action for the Protection of the Marine Environment from Land- based Sources (GPA), the intemational community has endorsed the concept of an integrated coastal zone for coastal environmental development and LBSMP confrol.32
In order to confrol various sources of LBSMP in an integrated manner through ICZM
'the need for cooperation between all spheres of government is required'.33 (Dn this
31 Agenda 21 Chapter 17.1.
32 Integrated catchment management in Ausfralia is an important initiative in this respect. Under this
management system, evaluation of diffuse sources of nutrients is undertaken in some catchment
areas in a bid to reduce soil erosion and improve fertiliser management. (Zann L, Our Sea, Our
Future - Major Findings of the State of the Marine Environment Report for Australia, Department
of the Environment, Sports and Territories, Canberra, 1995 (subsequentiy Our Sea, Our Future) at
91. The reasons for undertaking to implement ICZM are diverse.
To improve the health of Ausfralia's marine and estuarine habitat and coastal zones AS 125 miUion
has been provided for a period of five years (including 1996-97) through the Natural Heritage Tmst
to administer to the Coasts and Clean Seas. This support has been provided to address the problem
of LBSMP. The key objectives of this program are to minfrnise the impacts of ad hoc and
uncoordinated development in the coastal zone; and minimise the impacts of land-based marine
pollutants, particularly those arising from inappropriate developments, stormwater and sewage
discharges. (Commonwealth of Ausfralia, Australia's Oceans New Horizons - A Commonwealth
Agenda, 1997 at 3. (Fact Sheet, Coastal and Marine Planning Program). See also
www.hht.gov.au/programs/coasts for summary.
33 Commonwealth of Ausfraha, Department of the Envfronment, Sport and Territories, Living on the
Coast, the Commonwealth Coastal Policy, May, 1995 at 6. See also Muldoon J, 'The
Environmental Impact of Coastal Zone Development', in Tsamenyi M (et al), Coastal and Maritime
-90- issue, participation and co-operation of local authorities is a cmcial determining factor.34
In this regard, Agenda 21 noted that:
Local authorities constiruct, operate and mafritain economic, social and envfronmental mfrastiructure, oversee plannmg processes, estabUsh local envfronmental policies and regulations, and assist in implementing national and sub national envfronmental policies. As tiie level of governance closest to the people, they play a vital role in educating, mobilising and responding to the pubhc to promote sustainable development.^^
In view of this imperative, all agencies and organs at a government level need to be much more cooperative on marine and coastal environmental protection issues. These include effective public access and consultation on certain environmental development proposals, negotiation, and implementation of intemational agreements on marine environment to fiilfil the task set by Chapter 17 of Agenda 21.
4.3.2 The Complexity of ICZM
Because of the indeterminate extent of its operation,^^ ICZM has been identified as an awkward and complex problem. Pitts, for example, has noted various characteristics of
Zone Planning and Management: Transnational and Legal Considerations, Centre for Maritime
Policy, University of Wollongong, 1995, at 9.
34 Tsamenyi BM, 'Mechanisms for Integrated Resource Management' Paper presented in 29th Annual
Conference of the Law of the Sea Institute, Denpasar, Bah, 19-22 June 1995 at 16.
35 Agenda 21, Chapter 28, para 28.1.
36 LBSMP often give tiie appearance of bemg a local problem, but the question frequently arises as to
which level of government is responsible for thefr contiol. This is especially tme when tiie sources
of the pollutants and the affected maritune area are under different legal and administtative
jurisdictions (Men Quing-nan, Land-based Marine Pollution, (Graham and Trottnan/Martinus
Nijohoff Publishers, 1987) at 50. -91 - grave complex problems which are applicable to coastal zone management.37 These include involved and sensitive cross-jurisdictional boundaries, complex interaction of terrestrial and marine systems, uncertainties and ambiguities in terms of decision making and management process, and population growth and economic activity .^^
Apart from these identified problems, various kinds of 'capacity', such as legal and
adminisfrative, financial, technical and human resources capacities are needed to
successfully carry an ICZM program. It has been commented by critics that rational
coastal zone management is a luxury that many coastal states (developing and small
island developing countries) cannot afford. Effective cooperation and partnership
arrangements are required to find the solution to these problems.
37 They are: (a) interconnectedness, where sfrong cormections link one problem with another; (b)
complexity, witii numerous elements including feedback loops; (c) uncertainty, for grave problems
exist m an uncertam envfronment which creates a need to accept risk, perhaps an incalculable risk;
(d) ambiguity, where tiie problems can be seen in a quite different way depending on a person's
characteristics and experience; (e) conflict, where competing clauns and confhcts of interest exist
tiiat are unlikely to readily enter cooperative arrangements; and (f) social consttaints, that is, social,
political and technological constiafrits have a bearing on perceptions of the feasibility and
desfrabihty of solutions. (Pitts D, Analysis of Sti-ategic Planning Processes and Initiatives for
Coastal Zone Management, Resource Assessment Commission Consultancy Report, Commonwealtii
of Austtaha, (1993) at 53. This 'grave complex problem' characterisation was identified by Manson
and Mittoff, Mason RO and Mittoff I, Challenging Strategic Planning Assumptions: Theory, Cases
and Techniques, (John Wiley and Sons: New York, 1981).
38 Pitts D, ibid.
-92- 4.4 ENVIRONMENTAL IMPACT ASSESSMENT (EIA)
To ensure proposed development activities are sustainable, evaluation of potential environmental effects are needed.39 EIA mvolves the following component activities:
• a stiidy of the effects of a proposed action on the envfronment; and
• comparison of various altematives by which a desired objective may be reahsed and
identification of the one which represents the best combination of economic and
environmental cost and benefits.'^o
Thus it is based on a prediction of the changes in environmental quality which would result from the proposed action and it attempts to weigh envfronmental effects on a common basis with economic costs and benefits.'*^ As a decision making tool EIA's aim to ensure that environmental impacts are recognised and taken into account early in project designs so that the proposed action will not adversely affect the environment.'*2
39 EIA, UNEP Regional Seas Reports and Studies No 130, UNEP, 1990 at 1.
40 Yusuf JA and George KS, Guidelines to Environmental Impact Assessment in Developing
Countries, UNEP, (Hodder and Stoughton Ltd., London, 1985) at 2.
41 Yusuf JA and George KS, ibid at 2.
42 Le Presfre PG, 'Envfronmental Learning at tiie World Bank', m Bartlett RV, (et al) (eds),
Intemational Organizations and Environmental Policy, (Greenwood Press, London, 1995) at 89.
Popiel BR, 'From Customary Law to Envfronmental Impact Assessment: A New Approach to
Avoiding Trans-boundary Envfronmental Damage between Canada and The United States',
Environmental Affairs Law Review, 1995, Vol 22, at 462. Altiiough initially EIA was lunited, or
dominated by analysis of effects and impacts fri tiie physical, chemical, and biological envfronment
(Conover SAM, et al), 'An Evolvmg Framework for Envfronmental Impact Analysis; Metiiods',
Journal of Environmental Management, 1985, Vol 21 at 343) which was called biophysical
-93- hi relation to marine pollution generally, the United Nations Joint Group of Experts of
Scientific Aspects of Marine Pollution (GESAMP) has recommended that EIA should
include the definition of environmental boundaries,43 identification of targets and possible targets at risk, identification of pathways by which the pollutant may reach the
targets at risk, selection of or derivation of standards, calculation of envfronmental capacity, determination of acceptable discharge rates, and the designing of freattnent options."*^
4.4.1 EIA and LBSMP Control
In relation to LBSMP control, it is the duty of states 'to ensure prior assessment of activities that may have significant adverse impacts upon tiie marine environment'."^^
In order to prevent and eliminate marine pollution, EIA requirements have been developed as a 'preventive tool' at an intemational level through intemational law, either, impliedly or explicitly. For example, Principle 21 of the Stockholm Declaration
envfronmental impact, now EIA has broadened to include 'socio-economic envfronmental impact
assessment' (ibid) as many indusfrial and development projects raise question of risk from a socio
economic impact point of view.
43 This may include development and management objectives to protect coastal areas from marine
pollution.
44 GESAMP, Reports for tiie Second Session of tiie GESAMP Workmg Group on tiie Metiiodologies
and Guidelines for the Assessment of the Impact of Pollutants on the Marine Envfronment,
GESAMP XV/6, 1984.
45 The Global Program of Action for the Protection of the Marine Envfronment from Land-based
Sources (GPA), para 9(b), Environmental Policy and Law, 1996, Vol 26, No 1 at 38.
-94- unplies an EIA requirement by giving states the responsibihty to ensure activities carried out on their territory do not harm the envfronments of other states.
Article 206 of the United Nations Convention on the Law of the Sea (LOSC) exphcitly requfres, in relation to matters under their jurisdiction or confrol that; 'states shall as far as practicable assess the potential effects of those activities that may cause substantial pollution of, or, significant and harmfiil changes to, the marine envfronment'. In this regard, Article 12 of the Montreal Guidelines requfres states to 'assess the potential effects, or, impacts of, proposed projects under their jurisdiction and confrol, particularly, in coastal areas, that which may cause land-based marine pollution'.
Likewise, Principle 17 of the Rio Declaration'^^ and paragraph 22 (c) of the GPA emphasises the identification and assessment of problems. In terms of LBSMP control, the GPA establishes a priority basis for EIA action and requires governments to apply
EIA procedures in assessing options for LBSMP control.'*''
EIA requfrements have developed at a regional level through a number of conventions and protocols, such as, the Baltic Convention, the Helsinki Convention, the Kuwait
Convention, the Athens Protocol, the Abidjan Convention, and the Barcelona
Convention on the Mediterranean Sea. These instinmients requfre a detailed impact statement describing subject matters that may affect the environment. The preparation
46 The Rio Declaration on Environment and Development, adopted in the UNCED, Rio de Janefro, 14
June 1992.
47 Para 22 (c) of tiie GPA. According to para 22 of the GPA, priority basis for action is tiie relative
unportance of impacts upon food, security, public healtii, coastal and marine resources, ecosystem
health, and socio-economic benefits.
-95- of such statements requires a comprehensive input from the government and peoples of
any State likely to be affected by it.
4.4.2 Limitations of the Application of EIA
EIA is obligatory in intemational law for only those activities conducted withm a
State's jurisdiction and control. This indicates that EIA is limited to activities within a
State's own territory without requiring a State to develop, or participate in, any joint
EIA whereby effects of an activity may go beyond that territory.^s This gives a State tiie option of acting as the sole judge of the environmental effects of activities within its territory, merely being encouraged to undertake EIA for proposed activities. That is, this flexible requirement gives scope to avoid the EIA process.
Carefiil assessment of potential pollutants is expensive and resource uitensive. As noted in Chapter Two, various types of industrial and agricultural activities are largely responsible for LBSMP. Degraded materials from these activities are disposed of in coastal areas thereby affecting the coastal waters and environment significantly. Strict conditions, which could assist in managing the impacts of disposing of these degraded materials on adjacent marine and coastal areas, are not imposed in the EIA process. As a consequence, sincere commitments to LBSMP contiol have not yet been developed throughout these industries, especially in developmg countiies.
48 Alheritiere D, Environmental Impact Assessment and Agricultural Development: A Comparative
Study, (FAO: Rome, 1982) at 54.
-96- 4.5 THE PRECAUTIONARY PRINCIPLE
The origins of the precautionary principle appear to lie in concepts of national law,
notably the Vorsorgenprinzip of German law.49 The Vorsorgenprinzip mcludes tiie idea
of Gefahrenvorsorge, or 'precaution from danger' which offers greater environmental protection.50
In 1990, the Bergen Ministerial Declaration on Sustainable Development, defined tiie precautionary principle to mean that:
Envfronmental measures must anticipate, prevent and attack the causes of envfronmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be as a reason for postponing measures to prevent envfronmental degradation.^^
Principle 15 of the Rio Declaration on Environment and Development captures the essence of this principle in following way:
In order to protect the envfronment, the precautionary approach shall be widely applied by States according to thefr capabilities. Where there are threats of serious or irreversible damage, lack of scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent envfronmental degradation.^2
4" Hohmann H, Precautionary Legal Duties and Principles of Modem Intemational Environmental
Law, (Graham and Trotman, London, 1994) at 333.
^0 Cameron J, 'The Precautionary Principle: A Fundamental Principle of Law and Pohcy for the
Protection of the Global Environment', Boston College Intemational and Comparative Law Review,
199, Vol XIV, No 1,1991 at 4.
51 ECE/RMP 6, Draft Report of the Meetmg on the Mediterranean (1990), See also 20 Environmental
Policy and Law, 1990 at 100.
52 See also Agenda 21, Chapter 17.22, A/CONF, 151/26 (Vol II), 1992.
-97- These precautionary approaches to environmental protection maintain that it is unpermissible to carry out an activity unless it can be shown that it will not cause unacceptable harm to the environment.53
Apphcation of the precautionary principle requires the development of standards, policies, and/or codes of best practice in relation to activities causmg pollution so as to reduce danger of major damaging incidents.^^ In this way, the principle goes beyond the aim of conventional pohcy, which typically seeks to prevent damage to the environment once the risk is known and proven. Dovers and Handmer highlight the nature of the principle:
Cenfral to the difficulties with these elements is the notion of 'preventive' or 'anticipatory' action that is perceived to accompany the principle. It seems intuitively sensible to seek to anticipate serious envfronmental damage, and to act to prevent it. But this highlights the paradox upon which balances the precautionary principle: told to anticipate environmental and associated social and economic damage, the decision-maker is (or should be) left pondering how to anticipate the uncertain, the indeterminate, and the unknown.^^
The thrust of this principle is, when making pohcy decisions, we should err on the side of the envfronment, or caution, or both.56 With the intioduction of this principle.
53 Bfrnie PW and Boyle AE, International Law and the Environment, (Oxford University Press, 2"^ ed
2002) at 118.
54 Gouilloud MR, supra note 26 at 199.
55 Dovers SR and Handmer JW, 'Ignorance and the Precautionary Principle: Towards an Analytical
Framework', Proceedings of the Precautionary Principle Conference, histitiite of Envfronmental
stiidies, University of New Soutii Wales, 20-21 September, 1993 at 5.
56 Remarks of Bodansky Professor D, 'Panel Discussion: New Developments fri fritemational
Envfronmental Law,' American Society of International Law Proceedings, 1991, Vol 85 at 415.
-98- identification of the threshold of significant envfronmental risk has become easier.
Once a prima facie case is made that a risk exists, then scientific uncertainty works against the potential polluter, rather than, as in the past, in his or her favour.57
The precautionary principle paves the way for policy makers to identify, assess, and manage the risks inherent in scientific uncertainty.^^ This embraces the idea that 'rather than await scientific certainty, we should act in an anticipatory manner to ensure that potential environmental harms do not occur in the first place'.^^ The precautionary principle operates in two ways. Firstly, it shifts the burden of proof, or:
... when scientific information is in doubt, the party that wishes to develop a new project or change the existing system party]... has the burden of demonstiating that the proposed changes wiU not produce unacceptable adverse impacts on existing resources and species.^^
It can also be used to decrease the burden of proof necessary for action, in order to account for scientific uncertainty.^^ When science, for example, is unable to measure the potential envfronmental harmfiihiess of a particular chemical, and there is no evidence that the chemical has harmful effects on the
57 Freestone D, 'The Precautionary Principle' m Churchill R and Freestone D (eds), Intemational Law
and Global Climate Change, (Graham and Trotinan, London: 1991) at 32.
58 O'Riordan gives four meanings of precautionary principle, a) Thoughtful action in advance of
scientific proof; b) leaving ecological space as room for ignorance; c) care in management; d)
shifting tiie burden of proof from tiie victim to tiie developer. (O'Riordan T, Environmental Science
for Environmental Management, (Longman Scientific and Technical, 1995) at 9.
59 Remarks of Bodansky professor D, supra note 5 6 at 413.
60 Van Dyke JM (et al), Freedom for the Seas in the 21st Century, 1993 at 477. See also Article 11(b)
of tiie World Charter for Nature, 1982,22 ILM (1983) 455.
61 Remarks of Bodansky Professor D, supra note 56 at 415.
-99- environment, this principle provides a presumption that can be used as a substitute for missing evidence.^2
Secondly, this principle encompasses a dynamic element, in that requfres all users of the
ocean commons to develop alternative non-burdensome technologies.63
4.5.1 The Precautionary Principle and LBSMP
As one of the basic mles to govern the ocean environment, the apphcation of the
precautionary principle was mooted over a decade ago in an intemational forum.
Growing concem was gathering over the state of the shallow Wadden Sea, which borders the North Sea coast of the Netherlands, Germany and Denmark.^
In 1991, a report to the Secretary General of the UNCED Preparatory Committee marked the significance of this principle in relation to marine pollution confrol:
Given the present uncertainty of the impact of many anthropogenic substances in the marine envfronment and the risks they may present to important resources, precautionary approaches are clearly needed in determining the amounts of many substances that should be allowed to enter the oceans and the priorities for the implementation of confrol measures.^^
This principle is also reiterated in many other intemational instruments for marine environment protection. For example, the Convention for the Protection of the Marine
62 Ibid.
63 Hey E, 'The Precautionary Concept in Envfronmental Policy and Law: Institutionahsing Caution',
Georgetown International Environmental Law Review^ 1992, Vol 4 at 308.
64 Freestone D, supra note 57 at 21.
65 DocA/CONF. 15 l/PC/30, 1991, para 54.
-100- Environment of the North-East Atlantic^^ and the 1996 Protocol to the Intemational
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other
Matters.^'^
In terms of a new understanding of traditional resource management, the precautionary
principle has assumed a significant statiis in LBSMP contiol. Chapter 17B of Agenda
21, entitied 'Marine environment protection', dfrectiy addresses LBMP and sfresses a
precautionary and anticipatory approach to prevent marine envfronment degradation.^^
In this way the principle has become one of the core ideologies of sustainable
development for marine envfronmental protection from LBS. The GPA states that:
... to protect the marine envfronment from LBS in the context of sustainable development it is necessary to apply preventive, precautionary, and anticipatory approaches so as to avoid degradation of the marine envfronment, as well as to reduce the risk of long term or irreversible adverse effects upon it.^^
4.5.2 Scientific and Economic Implications of the Precautionary Principle
Application of the precautionary principle in an equitable manner poses a number of
challenges. Its manifestation in any national behaviour evidences a differentiated range
of issues defined by scientific competence, financial ability, and the degree of
66 (1993), 32 ILM 1072.
67 1972, (1997), 36ILM1.
68 Agenda21 para 17.21.
69 GPA, para 9a, Environmental Policy and Law, 1996 at 38.
-101- willingness of State authorities to carry out the measures requfred.''^ There is no
consistent interpretation, nor any consensus, as to how this principle should be
applied.7i It begs the questions of where a threshold for 'possible adverse' effects
should be set, by whom, and whether the civil legal test of 'balance of probabilities' is
the appropriate one for this principle to apply to resource management.'72 -phis is why,
as a guiding principle in implementing an ecologically sustainable sfrategy, this
principle is not well received in domestic laws and in government decision making.
The precautionary principle does not, in practical terms, prescribe the specific measures by means of which it might be operationahsed.73
70 This issue has been highlighted in different intemational freaties, such as Articles 194 (1), 207 (4) of
LOSC. For details, see Chfrcop AE, 'The Mediterranean Sea and the Quest for Sustainable
Development', Ocean Development and Intemational Law, 1992, Vol 23 at 17. See also McDonald
JM, 'Appreciating the Precautionary Principle as an Ethical Evolution in Ocean Management',
Ocean Development and Intemational Law, 1995, Vol 26 at 265-269. See also Chapter 17, Agenda
21.
71 O'Riordan T and Cameron J, 'The History and Contemporary Significance of the Precautionary
Principle', in O'Riordan T and Cameron J (eds). Interpreting the Precautionary Principle,
(Earthscean: London, 1994) at 21
72 Grinlinton D, 'Natural Resources Law Reform in New Zealand - Integratfrig Law, Pohcy and
Sustauiability', Austi-alian Journal of Natural Resources and Policy. 1995, Vol 2, No 1 at 14.
73 See Freestone D and Hey E, (eds). The Precautionary Principle and Intemational Law: The
Challenge of Implementation, Passim, 1996.
-102- 4.6 THE POLLUTER PAYS PRINCIPLE
The polluter pays principle ostensibly originated as an economic tool applied in domestic contexts to allocate the costs of pollution prevention and control measures to the polluter.7'^ This principle implicitly encourages the rational use (as opposed to wasteful exploitation and utilisation) of scarce envfronmental resources.
It requires that the costs of envfronmental pollution should be internalised. In the mtemational context, this is an attempt to shift the burden of pollution prevention and clean up costs to states, or other groups or bodies involved in pollutmg activities, rather than permitting that burden to continue to be imposed on the intemational society as a whole. This concem has been voiced by the Organization for Economic Cooperation and Development (OECD):
This principle means that tiie polluter should bear the expense of carrying out the pollution prevention and confrol measures decided by public authorities to ensure that the envfronment is in an acceptable state. In otiier words tiie costs of these measures should be reflected m tiie costs of goods and services which cause pollution in production and /or consumption."^^
As a means of allocating intemational responsibility for pollution abatement, or repafr, this principle more often applies to industiialised states.^^ They are mostly responsible for environmental pollution between states.
74 Smets H, 'The Polluter Pays Principle m tiie Early 1990s', in Campigho L (et al), The Environment
after Rio: Intemational Law and Economics, (Graham and Trotinan, 1994), at 131.
75 OECD Envfronment Committee, Guiding Principles Conceming the Intemational Economic
Aspects of Environmental Policies. OCED Doc C (72) at 128.
76 See Smet H supra note 74 at 141 -43.
-103- At the domestic level, the imposition of discharge fees under the polluter pays principle pushes industries to pay the costs of thefr waste directly.'^''' This means, industries are put under pressure to install optimal pollution control technologies in order to reduce, or
avoid paying, such fees.^^ In this respect, those industries which install optimal pollution control technologies, wih pay less, and benefit economically. The Rio
Declaration states that:
... national authorities should endeavour to promote intemalisation of envfronmental costs... taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting intemational frade and investment.^^
The polluter pays principle encourages polluters, or potential polluters, to undertake
waste confrol measures. This is done by government incentives to polluters in the form
of tax incentives or a pollution tax.^o Altematively, a waste discharge permit system
77 Reed KR, 'Notes-Economic Incentives for Pollution Abatement: Applymg Theory to Practice',
Arizona Law Review, 1970, Vol 12 at 76.
78 Cote RP (et al), 'Social, Economic, Institiitional and Legal Considerations m tiie Management of
Land-based Marme Pollution', in WeU PG (et al), Canadian Conference on Marine Environmental
Quality: Proceedings, (The Intemational histitiite for Transportation and Ocean Pohcy Stiidies,
Halifax, 1988) at 68.
79 Principle 16 of Agenda 21, 31, ILM 874, 1992; UN Doc A/ Conf 151/26 (Vol 1), 1992. Cited in,
The Global Partnership for Environment and Development, A guide to Agenda 21, 1992, UNCED,
Geneva, April 1992 at 3.
80 A tax mcentive authorises a deduction from regularly hnposed tax, and tiie pollution tax is charged
and calculated as tiie same rate as tiie margmal pollution contiol cost at tiie pomt where it equals the
margmal damage cost to society (see Sandbach FR, 'Economics of Pollution Control', m Lahan J
and Fletcher WW (eds), Economics of the Environment, New York, 1979, at 7). As a fiscal
-104- may allow the purchase of pollution rights^i so as to keep discharges at a permissible level.82
4.6.1 Polluter Pays Principle in LBSMP Control
Until the 1990s, the polluter pays principle was not reflected in marine environmental instiiiments as a mechanism of marine pollution control. For the first tune, this principle was explicitly recognised m the International Convention on Oil Pollution
Preparedness, Response and Cooperation, 1990,^3 as an intemational prmciple of marine pollution contiol, in company with existing civil liability and damage compensation schemes.^'^
The polluter pays principle has been adopted since 1992 as a management mechanism, and incorporated in many intemational and regional marine environmental instruments.
These instruments include; Agenda 21, GPA (1995), the Helsinki Convention (1992)
Articles (3) and (4), and the Paris Convention (1992) Article (2)(2)(b) for LBSMP.
instrument, pollution tax, internalises pollution cost and provides an incentive to reduce pollution
adopting the least expensive pollution abatement technologies.
81 Stewart RB, 'Economics, Envfronment, and the Limits of Legal Contiol', Harvard Environmental
Law Review, 1985 at 12.
82 To use this system the permissible level of pollution is assessed and 'rights to pollute' are then sold
in the market. (Sandbach FR, 'Economics of Pollution Confrol', in Leihan J and Fletcher WW (eds),
Economics of the Environment, (New York, 1979) atl2).
83 Intemational Convention on Oil Pollution Preparedness, Response and Cooperation, 30 Nov, 1990,
S Treaty Doc No 11, 1991.
105 The importance of this principle m the context of LBSMP contt-ol has been underiined and reflected in Agenda 21 and the GPA, where states have agreed to:
...develop economic incentives, where appropriate, apply clean technologies and otiier means consistent witii the mtemalisation of envfronmental costs, such as the Polluter Pays Principle, so as to avoid degradation of the marine envfronment.^^
The polluter pays principle, however, presumes econonuc, scientific and instittitional competence. From economic and scientific points of view. Springer identifies three problems. First, the determination of environmental cost of a polluting activity is uncertain; second, there is no uniform standard by means of which to apply this principle; third, determination of damage from diffused sources of pollution and the set up of a standard of permissible level of pollution is difficult and uncertain. ^6
Although the need for developed states to subsidise the efforts of developing states to upgrade their environmental performance to provide cleaner means for pursuing economic activity is recognised,^"^ not much appears to have been accomplished in this regard. Most developing states seem to accept the polluter pays principle as part of the
84 It is to be noted that the 1969 International Convention on Civil Liability implicitiy, rather than,
exphcitly, adopted the polluter pays principle.
85 Agenda 21 para 17 22(d), GPA para 9(d), Environmental Policy and Law, 1996 at 38.
86 Springer AL, The International Law of Pollution, (Quomm Books, 1990) at 18-19.
87 See Agenda 21, Chapter 33, which urges this route afready being pursued under the Global
Envfronment Facility (GEF) of the World Bank, the United Nations Development Program, and
UNEP. In terms of providing financial assistance for envfronmental issues to developing countries
GEF has become an important organisation. See Instrument for the Establishment of the
Restructured Global Environment Facility, March, 1994, UN Doc DP/1994/60 (1994), 33 ILM
1273.
-106- conditions for securing development assistance, but they do not observe this principle in practice as a means for protecting the marine environment^^ from LBSMP.
4.7 CLEANER PRODUCTION
The concept of cleaner production has risen from a demand for pollution free, resource efficient, and sustainable modes of production. ^^
Jackson points out that the concept of cleaner production is based on three principles:
• precaution (assuming reasonable worst case scenarios);
• prevention (looking at the production process as a whole to eliminate as many areas
of potential risk as possible); and
• integration (protecting the environment across all areas of activity by factoring it
into all decisions).9o
The cleaner production concept induces a shift from non-sustamable technology to less polluting, and more environment-fiiendly technologies, and forces pollution control
88 Smets H, 'The Polluter Pays Principle m tiie Early 1990s', supra note 74 at 141-144.
89 Huisingh D, 'Waste Reduction and Pollution Prevention at Source: The Imperative for Sustamable
Societies', Proceedings of Conference on Renewable Energy and Cleaner Technology, Denmark,
16-18 May, 1990 at 19-25.
90 Jackson T, Clean Production Sfrategies: Developing Preventive Envfronmental Management in tiie
Industtial Ecology, (Lewis Pubhshers, Boca Raton, Florida, 1993). Quoted in Clayton A (et al).
Policies for Cleaner Technology - A New Agenda for Govemment and Industry, (Earthscan
Publications Ltd, 1999) at 13.
-107- agencies to adopt more rigorously the principle of sharing both the burden and the effort, regardless of the 'scientific, justification for differential freatment'.^i It places much more reliance on 'up the pipe' pollution prevention at source such as product substitution, recycling, and the utilisation of techniques, such as life cycle analysis, and whole firm envfronmental management services.92 jn tj^s way the new concept has replaced the traditional approach of scientific assessment of the oceans' assimilative
capacity.93
The heart of the cleaner production process is the use of cleaner technology. It relies on
the use of processes and products, which prevent and reduce intemal and extemal
environmental problems throughout a product's life cycle. This entails:
• minimising volumes and hazards of gaseous, liquid and solid wastes;
• minimising the risk of accidents involving chemicals and processes;
• minimising consumption of raw materials, water, and energy; and
91 Grant A and Jickells T, 'Marine and Estiiarine Pollution', m O'Riordan T (ed). Environmental
Science for Environmental Management, (Longman Scientific and Technical, 1995), at 264.
92 Grant A and Jickells T, Marine and Estiiarme Pollution, ibid, at 264.
93 Freestone D and Ijlstia T (eds), The North Sea: Perspectives on Regional Environmental
Cooperation, (Graham and Trotinan, London, Boston, 1990) at 27; Hohmann H, supra note 49 at
334.
- 108- • using substitute chemicals and processes less hazardous to human and ecological
health.94
Cleaner technology has the potential for financial gafris. For example, the cost of waste freatment can be eliminated or reduced if less, or no waste is produced. Also, in many instances, at least part of the waste which requires freatment will consist of lost product or other valuable process materials.^^
4.7.1 Cleaner Production and LBSMP Control
With the emerging marine environmental crisis and uicreasing community pressure, firms and industries have developed cleaner processes and products for LBSMP conttol.
As a management tool, the cleaner production principle offers an effective solution for tackling LBSMP problems by providing firms and industries in marine and coastal areas the opportunity to protect coastal waters, and ensuring environmentally sustainable use of resources.
Although cleaner production may significantly improve the LBSMP conttol situation and the profitability of firms and industries, the technological tiansition process raises issues. For example, costs of purchasing the technology, implementation costs, financial
94 Redan A (et al). Waste Management: Clean Technologies: Update on the Situation in Member
States, Commission of tiie European Union, Dfrectorate General for Envfronment, Nuclear Safety,
and Civil Protection (DG XI), June 1994 at 2.
95 Clayton A (et al), supra note 90 at 208-209.
-109- costs,96 operating costs^'^ and risks and uncertainties associated with the adjustment of technological adoption's may be problematic. On the other hand, benefits, such as
improvement of the firm's public image and fransfers of knowledge may accure. These
factors indicate that adequate resources, expertise, communication, and access to
information are essential for the successfiil implementation of a cleaner production
program.99
4.8 IMPLEMENTATION SYSTEM
Implementation is the measures Parties take to make intemational agreements operative
in their domestic law.i°° Implementation systems comprise the myriad Acts of
Governments, such as existing regulations and new laws. They also include activities of
non-State actors such as scientists, environmental groups, and intemational institutions.
96 Under the Clean Seas Program, tiie Commonwealtii of Austtaha will provide $51 milhon to reduce
sewage and storm water pollution. Austi-alian Natural Heritage Trust Program Summary - Coasts
and Clean Seas Program, 2000 (http://www.nht.gov.au/progTams/coasts.htiiil).
97 The opportimities vary from sniaU changes m operational procedures to replacement of process
equipment. (UNEP lE/PAC, Cleaner production Newsletter, Fall 1993, No 7 at 2.
98 Kemp R, Environmental Policy and Technical Change, (Edward Elgar, 1997) at 223-224.
99 Canada-Chma Cooperation Project in Cleaner Production, Newsletter 6, Winter 2001.
nitfp-//\^^w.chinacp.com/eng/crprojects/canada/cccpcp index.htinl).
100 Nordic Council of Ministers, The Effectiveness of Multilateral Environmental Agreements - A
Report from a Nordic Project, Tema Nord, 1996, 513 at 6.
-110- which undertake monitoring or assist national governments as they put intemational
commitments into practice.^oi
Implementation requires coordination and integration of complex political and
economic elements. However, institutions and mechanisms for reviewing
implementation, such as implementation review activities which assess both formally
and informally, the adequacies of existing capabilities and commitments to respond the
problems, can play an important role in resolving the problem.^02 jjijs requfres
101 Victor (et al), 'Infroduction and Overview', in Victor DG (et al). The Implementation a7id
Effectiveness of International Environmental Commitments: Theory and Practice, (Intemational
Institute of Applied System Analysis, 1998) at 4. Monitoring aims at providing information on the
situation of the envfronment and its findings, usually from the basis of recommendations adopted by
organizations for fiiture sttategies to deal witii specific enviromnental problems. [Beyerlin U, (et
al). Law Making and Law Enforcement in Intemational Environmental Law, After 1992, Rio
Conference, (Umwelt Bundes Amt, 1997) at 99]. There has been wide recognition that some
systems of monitoring and reporting of national performance is necessary to achieve effective
confrol of LBSMP. [Caldwell LK, 'Necessary for Organizational Change: Implementuig tiie Rio
Agenda of 1992', in Bartlett RV, (et al), Intemational Organizations and Environmental Policy,
(Greenwood Press, London, 1995) at 33].
102 'Capacity building' encompasses a number of activities that are focused on supporting and
miproving coastal management decisions. This term is commonly used by intemational
organizations, particularly the United Nations in its programs. It is also used by individual states in
terms of hmitation of tiiefr resources. (Crawford B, Cobb JS and Friedman A), 'Capacity Buildmg
for Integrated Coastal Management m Developmg Countiies', 1993, Ocean and Coastal
Management, Vol 21 at 311-337 cited m Kay R and Alder J, Coastal Planning and Management, E
and FN Spon, London, New York (1999) at 147. Chapter 37 of Agenda 21 defmes 'capacity
building' as follows: 'Specifically, capacity building encompasses tiie countty's human, scientific,
technological, organizational, institutional and resources capabtiities'.
- Ill- coordinated networks of national, regional and global institiitions. That is, coordination between technological and financial assistance, both at national, and fritemational, levels. It requfres miproving the behaviour of a wide range of relevant actors mcluding avoidance and settlement of intemational envfronmental disputes, mcreased pubhc participation,io3 prevention and migration of envfronmental damage, sfrengthemng, and
Public participation is like tiie cornerstone m envfronmental development, and it is a constiiictive,
useful and necessary tool m the frnplementation process of the mtemational envfronmental regune.
(Merraiam D H and Benson J A, 'Identifying and Beating a Stiategic Law Suit Agamst Pubhc
Participation', Duke Environmental Law and Policy Fomm, 1993, Vol 3 at 21). It is also one of tiie
fundamental prerequisites for tiie achievement of marine envfronmental protection and marine
resource sustainability. All of these aspects have been recognised m principle 10 of tiie Rio
Declaration, which states:
'Envfronmental issues are best handled with tiie participation of aU concemed citizens, at tiie
relevant level. At the national level, each individual shall have appropriate access to information
conceming the envfronment tiiat is held by public autiiorities, mcluding information on hazardous
materials and activities in thefr commimities, and the opportunity to participate in decision-making
processes. States shall facihtate and encourage public awareness and participation by making
information widely available. Effective access to judicial and adminisfrative proceedings, including
redress and remedy, shall be provided.' (31 ILM (1992))at 874.
This issue is also recognised in Agenda 21. Chapter 23.2 of Agenda 21 states:
'One of the fundamental prerequisites for the achievement of sustainable development is broad
public participation in decision-making. In the more specific context of envfronment and
development, the need for new forms of participation has emerged. This includes the need of
individuals, groups and organizations to participate in envfronmental impact assessment procedures
and to know about and participate in decisions...'
Agenda 21 also made references in relation to participatory rights to achieve sustainable
development with intemational standard:
Govemment will need to promulgate or sfrengthen, subject to country specific conditions, any
legislative measures necessary to enable the establishment by NGOs of consultative groups, and
-112- development of, intemational environmental laws, and compliance to these agreements.'04 Priorities of LBSMP control are also important in this respect.
The implementation system relates to successfiil protection of the marine envfronment from LBSMP. It relies on the choice and application of appropriate arrangements.'^^
Interrelationship of economic and marine environmental factors and meaningfiil cooperation to enhance capacity building are important in this respect.
Although the applications of these sustainable management principles are significant to control LBSMP their implementation systems remain very weak due to various consfraints. There is a compelling need of effective cooperation because these management principles could ideally be implemented in a spirit of cooperation.
The existing cooperative arrangements are notional and mdimentary. They fall far short of optimal willingness for cooperative actions towards implementation of these management principles'^^. A cooperative regime which will facilitate implementation by improving economic conditions of states in a given region, developing economic
ensure the right of NGOs to protect tiie pubhc interest tiirough legal action (Chapter 27.13 of
Agenda 21).
104 UNEP, Report of the Meetmg of Senior Govemment Officials Expert fri Envfronmental Law to
Prepare a Programme for the Development and Periodic Review of Envfronmental Law for the Ffrst
Decade of tiie Twenty-first Century, Meeting of Senior Govemment Officials Expert in
Envfronmental Law to Prepare a Programme for tiie Development and Periodic Review of
Envfronmental Law for the Ffrst Decade of tiie Twenty-furst Centiiry, Nafrobi, October 2000, Annex
L at 5-10.
105 Gouilloud MR, 'Land-based Marine Pollution', supra note 26 at 245.
106 See Chapter 8.3 infra. -113- collaboration without confravenmg intemational obligations, and further encouragmg in the participation process of LBSIVIP control is therefore required.
4.9 CONCLUSION
As signs of deterioration in the marine environmental system become more frequent,
LBSMP impact studies have begun to appear more frequently. The significance of principles like the 'precautionary' and 'polluter pays' principles, in relation to LBSMP management have now been widely recognised. In terms of sttingent implementation of
LBSMP controls the application of these principles varies. For example, the application
of sustainable development in LBSMP confrol issues is general and vague. The
apphcation of this principle is, however, utilised by ICZM. ICZM works through
linking the govemment with the private sector and community, through coordination between levels of govemment for coastal management development to achieve sustainable development. On the other hand, EIA, as a process of assessment, develops a new understanding of pollution contiol, determining the cause and effect relationships, and predicting the impacts of proposed activities. Additionally, the precautionary principle has assumed an important role in reducing the frequency of incidents. The polluter pays principle is an attempt to shift the cost biuden of pollution prevention to polluters. The principle of 'cleaner production' has direct application in this respect. It places much more reliance on pollution prevention at source by utilising cleaner technologies and management services for LBSMP confrol.
All tiiese management principles, however, have shortcomings. That is, they have problems from their implementation point of view. Be that as it may, they have been well received by the intemational community, providing policy tools for the
- 114- management of LBSMP. They have been incorporated in different intemational instruments and have significantly advanced the gradual development of intemational regimes of this particular type of marine pollution confrol.
115 CHAPTER 5: THE GLOBAL FRAMEWORK FOR LAND- BASED SOURCES OF MARINE POLLUTION CONTROL
5.1 INTRODUCTION
The world community has become increasingly aware that the oceans are mterdependent, and consequently, impacts of land-based sources of marine pollution
(LBSMP) from one country, affects others through the movement of ocean ciurents.'
Given the frans-boundaiy nature of LBSMP, it is important to share solutions v^thin the intemational community, in the same maimer as the oceans are shared within it. This requires an intemational control of LBSMP.
The foundation for intemational laws for the control of LBSMP is laid in customary intemational law (CIL). However, due to the very vague and general terms of CIL mles, several international initiatives have been undertaken to more specifically formulate controls on LBSMP. These mclude intemational legal and policy instruments, providing a more specific legal framework. The mtemational management principles discussed in Chapter Four are absorbed mto or apphed within this framework.
The objective of Chapter Five is to describe and evaluate the effectiveness of the intemational legal framework for LBSMP conttol.2 The chapter commences with an
1 See Chapter 2.8 supra.
2 Effectiveness refers fnstiy, to tiie mechanisms set fortii in the tieaty to ensure its unplementation
and compliance and whetiier, and to what extent, tiiese measures ensure tiie achievement of tiie
tteaty objectives, and secondly, it refers to whetiier tiie obhgations are written fri such concrete
terms tiiat tiiey actiially can be put into effect domestically. (Nordic Council of Ministers, The
-116- examination of tiie principles of customary intemational law (CIL) relevant to resolution of LBSMP problems. The Treaty law is then discussed. The provisions of
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other
Matters, 1972 (London Convention) and the Umted Nations, Convention on the Law of the Sea (LOSC) are examined here. The relevant provisions of the United Nations
Conference on the Human Environment (Stockhohn Declaration), Montreal Guidelines on the Protection of the Marine Environment from Land-based Sources (Montieal
Guidelines), Agenda 21 of the United Nations Conference of Environment and
Development, and the Global Program of Action for the Protection of the Marine
Environment from Land-based Sources (GPA) are reviewed under the umbrella of soft law.3
This chapter correlates the intemational legal framework and intemational management principles (benchmarks) discussed in Chapter Four. In this context, it reviews the international legal framework relating to LBSMP conttol and evaluates the extent to which the benchmarks have been reflected, and applied, in practice. In other words, it shows the congruencies and discrepancies between the benchmarks and the intemational legal framework in controlling LBSMP by analysing the contents of CIL, hard and soft laws.
Effectiveness of Multimedia Environmental Agreements-A Report from a Nordic Project, Tema
Nord 1996:513 at 5-6).
3 See footnote 40 of Chapter 1.5 supra
- 117- In line with this objective, it is concluded that although the contemporary freaty and soft law framework is more elaborate and advanced than CIL, much still needs to be done for effective LBSMP confrol.^
5.2 CUSTOMARY INTERNATIONAL LAW
CIL is a common framework for intemational relations, being accepted by states as the body of binding mles between them.^ The CIL comprises two interrelated elements:
1. A consistent and general intemational practice amongst states; and
2. Acceptance of this practice as law by the intemational community of states.^
In, North Sea Continental Shelf Cases, the ICJ states that:
Customary uitemational law is evidenced by the practice of states by reference to pubhshed material, statements of tiie national govemment and a state's own laws and judicial decisions and its acceptance as law.'^
One of tiie sources of mtemational law, as mentioned m Article 38 (1) of tiie Statute of the
International Court of Justice.
State practice fricludes, physical acts, clauns, declarations abstiact (such as General Assembly
resolutions), national laws, national judgements and omissions (AkehurstM, 'Custom as a Source of
fritemational Law', British Yearbook of International Law, Vol 47 (1974-75) at 53). Non-State
activities, such as decisions of tiie ICJ and intemational ttibunals and writing of pubhcists, may also
lead to a customary mle, or at least be usefiti, legal documents tiirough which one can see how
customary intemational law has emerged (Hickey JE, 'Custom and Land-based Pollution of tiie
High Seas', San Diego Law Review, (1978), Vol 15 at 413-414.
-118- It is important to note that before December 2001, there was no specific judicial judgement of any mle in CIL which dfrectiy related to LBSMP conttol by tiie
Intemational Court of Justice (ICJ), or any other intemational tiibunai. However, in
December 2001 a judgement on a LBSMP matter was handed down by the Intemational
Tribunal for the Law of the Sea (ITLOS) m the MOX Plant Case.^ This case gives a new development of CIL on LBSMP control. The specific mention of LBSMP signifies an objectively imposed obhgation m this respect.
Under customary law there are some other broad, general and well-recognised interrelated principles, which have created a useful basis for intemational conttol on this issue.9 These are the principle of good neighbourliness, and tiie principle of reasonableness.
' North Sea Continental Shelf cases (Federal Republic of Germany v Denmark; Federal Republic of
Germany v Netherlands) (1969) ICJ 3. It has been considered by most of intemational lawyers and
the ICJ, in order to distinguish legal obligations from non-legal obligations. Opinio Juris is essential.
(Akehurst M, A Modern Introduction to Intemational Law, (George Allen & Luwin, 4th ed 1982) at
36).
^ The MOX Plant Case {Ireland v United Kingdom), Order 3 December 2001.
(http://www.itios/start2_en.html). For details see section 5.3.2.2 of this chapter.
9 It is important to note that principles examined in Chapter 4 are different from these general
principles of intemational law. These are one of the origins from which intemational conttol of
marme pollution is derived, relating only to cross-jurisdictional LBSMP, not to domestic. The
principles examined in Chapter 4 apply to cross-jurisdictional and domestic LBSMP.
-119 5.2.1 The Principle of Good Neighbourliness
The principle of good neighbourliness has been defmed as follows:
No state may conduct, promote or sustam m its territory activities which cause other tiian inconsiderable and usual damage in the territory of a neighbouring state. 1°
An express reference to this principle has been enunciated in Article 74 of the UN
Charter". Other references of the principle are to be found from freaty practice and
General Assembly Resolutions on development and sfrengthening of good neighbourliness between states.
The basis of this rule is found in the Roman law maxim sic utere tuo ut alienum non laedas, which means that 'states cannot use or permit the use of their territories to the detriment of the rights and legitimate interests of other states'.'2 xhig jg recognised as a
10 Hakappa K, Marine Pollution in Intemational Law-Material Obligations and Jurisdiction,
(Helsinki, 1981) at 141. In a broader sense this principle refers to State relations in general. For
example, in the preamble to the United Nations Charter 'the peoples of the Urtited Nations' have
expressed their determination to 'live together in peace with one another as good neighbours'.
(United Nations Organisation, Charter of the United Nations, Signed at the United Nations
Conference on Intemational Orgartisation, San Fransisco, California, June, 1945 (Washington D.C.,
US Govemment Printiuag Office, 1945)
" Article 74 states: Members of the United Nations also agree that their policy in respect to the
territories ... must be based on the general principle of good -neighbourliness, due account being
taken of the interests and well-being of the rest of the world, in social, economic, and commercial
matters. (United Nations Organisation, Charter of the United Nations, ibid)
12 Black's Law Dictionary defmes the sic utere tuo ut ahenum non-laedas as, 'use your own property
so as not to injure tiiat of anotiier'. Black HC, Law Dictionary, (West Pubhshing Co, 5* ed 1979) at
123S. - 120- general principle of intemational law,'3 having been confirmed in intemational legal tribunal decisions, which include, the Trail Smelter Arbitration. ^"^
The Trail Smelter Arbitration
The Trail Smelter case related to substantial damage of crops and vegetation in a United
States territory, by a Canadian copper smelter, through the emission of sulphur dioxides in the course of its operation. The Trail Smelter problem lasted for a number of years and was finally settled by an arbitral tribunal.^^
13 Lauterpacht H, Oppenheim's Intemational Law (8tii ed, London, Longmans, 1955) at 346; Hickey
JE, 'Custom and Land-based Pollution of the High Sea', San Diego Law Review, 1978 Vol 15 at
422; Boyle AE,'Land-based Marine Pollution: Legal Aspects'A/iar/nePo/jcy, 1992. Vol 16, No 1
at 24).
14 United States v Canada, American Journal of International Law (1941), Vol 35 at 648, et seq.
15 Damage withm tiie US was reported as early as 1925. On August 7, 1928 the US and Canada
established a Jomt Commission (IJC-UC) and the dispute was referred to tiie Commission for
settlement. The IJC-UC decided tiie dispute on Febmary 28, 1931 and damages ($350,000) were
awarded to the US as compensation for damages. However, as this decision did not improve tiie
conditions at the Trail Smelter by Febmary 1933, tiie US Govemment refiled complauits to tiie
Canadian Govemment about tiie sitiiation at tiie Smelter. These complaints led to a convention
entitied 'Convention for Settlement of Difficulties Arismg from Operations of Smelter at Trail
British Columbia' which was signed by tiie two Parties on April 15, 1935 (United States Treaty
Series No 893). The Convention called for tiie creation of a Tribunal to settle tiie dispute. The
Tribunal issued opmions in 1938 and 1941. (See generally, Kuhn AK, 'The Trail Smelter
Arbittation-United States and Canada', American Journal of Intemational Law, 1938, Vol 32 at
785). See also Bleicher SA, 'An Overview of Intemational Envfronmental Regulation', Ecology
Law Quarterly, 1972, Vol 2 at 19.
-121- In a decision regarding this case, the tiibunai apphed the principle of sic utere tuo and stated:
...under tiie principles of intemational law, as weh as of tiie law of tiie Urtited States, no state has the right to use or permit the use of its territory in such a manner as to cause mjury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence. ^^
Although the Case concems afr pollution, it has direct relevance to other problems of exfraterritorial damage including those caused by marine pollution from land-based sources:
(a) it dealt with exfraterritorial damage arising from pollution of a shared envfronmental resources (i.e. frontier atmosphere); (b) pollution was caused by the discharge of harmful chemicals from a fixed installation on land whose operation was not imlawfiil per se; and, (c) the basis of the responsibility of Canada was the exclusive territorial jurisdiction it exercised over the activities of the industry. ^^
However, this principle is not merely a reflection of the dictum sic utere tuo, but accords with the doctrine of equitable utihsation. In line with this, it has been later supported by ICJ decisions, which include the Lake Lanoux Arbitration Case."^^
Lake Lanoux Arbitration, with Respect to Prospective Damage
The Lake Lanoux Arbitration was based on a claim made by Spain against France. The diversion of lake waters as part of a hydro-electric project resuhed in arbittation. In this
1^ American Joumal of International Law, (1941), Vol 35 at 716.
1^ Kuwabara S, The Legal Regime of the Protection of the Mediterranean against Pollution from
Land-based Sources, (Tycooly Intemational Pubhshmg limited, Dublin, 1984) at 31.
18 (Spain v France), Anierican Journal of Intemational Law, (1959), Vol 53 at 156 et seq.
-122- case, the Intemational Tribunal (1959) affirmed that the exercise of State rights is acceptable to the extent that it does not ignore another State's rights. In this respect, it acknowledged:
France is entitled to exercise her rights; she cannot ignore the Spanish interests. Spain is entitled to demand that her rights be respected and that her interests be taken into consideration. ^^
The essence of this arbitration is that where the use of intemal waters does not change the water quality or volume flowing to another State, then that use is reasonable. In this context no prior consent or negotiation is required, owing to the fact that such use does not interfere with the water's flow into the water systems of other states.
This principle has become fundamental and has been recognised by a respectable
number of authors20 and is extensively applied by nations ranging from westem
countries to those in the Third World.21 The basic elements of this principle should at
least have application to LBSMP confrol.
19 (Spain V France) RIAA, (United Nations Reports on Intemational Arbittal Awards), Vol XII, p 285.
20 Hakappa K, supra note 10 at 142.
21 As the essence of tiiis principle relates to standard behaviour of States, in terms of tiiefr overall
relationship, it received general recognition, fri tiie words of Verzijl: 'Just as in private law betiveen
owners of neighbourmg plots of land (tiie duty not to obstiruct the natiiral flow of water downwards,
to refram from polluting a river or tiie afr by infecting refuse or fumes...), tiiere exist, as betiveen
neighbourmg States also, universal legal standards of behaviour.' (Verzijl JH, Intemational Law in
Historical Perspective, Bd IE, Leyden, 1970, at 415. Quoted ui Hakappa K, supra note 10) at 142.
123 Although the substance of the dictum sic utere tuo is closely related to the duties not to pollute established in the Trail Smelter Arbitration, as a corollary, it implies State responsibility for envfronmental injury. The UN Secretary General has stated that:
There has been a general recogitition of the mle that a state must not pennit the use of its territory for purposes injurious to the interests of other states in a maimer confrary to intemational law.22
Any confradiction to this recognised mle is a breach of intemational obhgation and will incur State responsibihty.
State responsibility refers to the liability a State can incur for the commission of a wrongful act against another State, or, against the nationals of another State in certain cfrcumstances.23 If any legal obligation arises, breach of that obligation, or failure to carry out that obligation, imposes liability upon the State in breach, which must provide reparation.24 i^ other words, responsibility arises for the breach of any obligation owed under intemational law.25
22 Survey of Intemational Law 34: UN Doc A/CN4/1 Rev 1, 1949.
23 Wallace-Bruce NL, 'State Responsibility', in Blay S, Piortowicz R and Tsamenyi M (eds), Public
International Law - An Austi-alian Perspective, (Oxford University Press, 1997) at 212.
24 For example, m tiie Chorzow Factory Case (1928), tiie Permanent Court of fritemational Justice
stated: 'it is a prmciple of mtemational law tiiat any breach of an engagement mvolves an
obligation to make reparation'. PCU, Pub Series A, No 17. fri mtemational law tiiis hability is
known as responsibility.
25 Harris DJ, Cases and Materials on International Law, (Sweet and Maxwell, Fifth edition, 1998) at
484.
-124- Reparation would need to be made for an intemationally wrongfiil act, which would be determined by intemational law. Article 4 of the Draft Articles on State responsibility states:
An act of a state may only be characterised as intemationally wrongfiil by intemational law. Such characterisation carmot be affected by the characterisation of the same act as lawful by intemal law.26
It is to be noted also that there are two theories on State responsibihty, 'risk or objective theory', and 'fault or subjective theory'. According to 'risk or objective theory,' states incur responsibility once they commit an intemationally wrongfiil act. According to
'fault and subjective theory', states incur responsibility for an intemational wrong subject to prove intention or negligence on the part of the State.2'7
In relation to obligations to prevent harm to other states, it is the responsibility of the states not to abuse their sovereign rights by committing such harmfiil acts within the territory. Any non-observance, or breach of this preventive obligation will give rise to liability28 as long as damage and a casual link are demonsttated.
26 International Law Commission Draft Articles on State Responsibility, ILC 1996 Report.
27 Wallace-Bmce NL, 'State Responsibility', m Blay S, Piortwicz R and Tsamenyi M (eds), supra note
23 at 214-215. For some other obligations, mjured States do not need to prove actual damage. If
injured States were able to show the commission of wrongfiil acts, that would be enough.
28 Part 1, Chapter III, Article 12 of tiie Draft Articles on State Responsibility. See Crawford J (et al),
'The ILC Draft Articles on State Responsibility: Toward Completion of a Second Reading',
American Journal of Intemational Law, 2000, Vol 94 at 662.
- 125- The Corfu Channel Case
The Corfu Channel Case^^ was related to a large number of deaths and injuries to
British seamen when two British desfroyers {Saumarez and Volage) stmck sea muies m
Albanian territorial waters in the Corfii Strait on October 22, 1946. In this case Albania incurred State responsibihty as it failed to fulfil a key intemational obligation in its territorial waters.
It is a State's obhgation to take measures, within its power, to prevent environmental damage where it knows, or ought to know, that an activity being undertaken on its territory is causing, or may cause, environmental damage.^o This requirement is acknowledged in the Corfu Channel Case. It was held, the pruiciple of sovereignty incorporates:
the obligation of every state not to allow its territory to be used for acts contiary to the rights of other states.^^
This case addressed a situation in which the injurious act had taken place within the territory of the responsible State and where the State was not entitled to use its territorial waters in a manner detrimental to the rights of other states. The court observed:
It must be concluded that the mine laying, whatever may have been its exact date, was done at a time when there was a close Albanian surveillance over the Sttait. If it be supposed that it took place at the last possible moment, i.e. the rught of October 21^-22"'', the only conclusion to be drawn, would be that a general
29 Corfii Channel Case (United Kingdom v Albania) 1949, ICJ Report 4.
30 Rayfuse R, 'International Envfronmental Law', in Blay S, Piortowicz R and Tsamenyi M (eds),
supra note 23 at 363.
31 Corfu Channel Case (United Kingdom v Albania) 1949, ICJ Report, pp 4, 22.
-126- notification to the shipping of ah states before the thne of the explosions would have been difficuh, perhaps even unpossible. But tiiis would certamly not have prevented the Albanian autiiorities from takmg, as tiiey should have done, aU necessary steps immediately to warn ships near tiie danger zone...fr was perfectiy possible for the Albanian authorities to use the mterval of ahnost two hours tiiat elapsed before the explosion affecting Saumarez, to warn the vessels of tiie danger mto which they were ruimfrig. In fact, notiting was attempted by the Albanian authorities to prevent the disaster. The grave omissions mvolve the mtemational responsibility.32
For these reasons the Court decided that Albania was responsible, under mtemational
law, for the explosion in Albanian waters and the damage and loss of human life which
resuhed there from. It thereby ordered that Albania pay compensation to the United
Kingdom.33
Although this case did not have explicit apphcation to LBSMP conttol, it imposed
obligations on states that are relevant to LBSMP confrol. It has pronounced that harmfiil
activities, which affect others, are not permissible and generate an obhgation to make
reparations. Release of LBSMP is a harmfiil activity that can affect other states and is
covered by analogy.
Case Concerning the Gabcikovo-Nagymaros Project
This case was associated with the constmction and operation of the Gabcikovo-
Nagymaros System of Locks by the Hungarian and Slovak Peoples' Repubhcs which
was based on a freaty, signed by both Parties on 16 September 1977, (and entering into
force on 30 Jime 1978) as a 'joint investment'. The treaty provided for two series of
32 Corfu Channel Case (Assessment and Compensation), ICJ Reports, 1949 at 244. (Quoted from
Harries DJ, supra note 25 at 497.
33 Ibid.
- 121 - locks, one at Gabcikovo (in Slovak territory) and the other at Nagymaros (in Hungarian territory), to constitute a single and indivisible operational system of works. On 27
October 1989, Hungary decided to abandon the works at Nagymaros. Nevertheless, in
November 1991, the Slovakian Govemment put the Gabcikovo Project mto operation, beginning work on 23 October 1992, to enable the Danube to be closed.
In this case the ICJ pointed out that the 1977 treaty was not only a joint mvestment project for the production of energy, but also it was designed to serve other objectives, including the protection of the natural envfronment. To achieve envfronmental protection the Parties accepted obligations of conduct, performance and results, under
Article 5 of the Special Agreement, 1977.34
In this, they had to find a satisfactory solution for the volume of water to be released into the old bed of the Danube and side arms for both banks of the river. Furthermore, they undertook to maintain the quality of the water of the Danube and to protect natLire.35
As both Parties failed to observe their responsibility in the judgement, the ICJ concluded that the Parties had jointly committed intemationally wrongful acts, which gave rise to the damage sustained. Consequently, Hungary and Slovakia were equally
34 The Case concemfrig tiie Gabcikovo-Nagymaros Project (Hungary/Slovakia)-1994, ICJ Judgement
25 September 1997, para 139). It is to be noted, altiiough mitially tiiis case was referred to Hungary
and Czechoslovakia in 1993, Czechoslovakia divided into two independent states. They are Czech
and Slovakia. Finally this case was related to Hungary and Slovakia.
35 The Case Conceming tiie Gabcikovo-Nagymaros Project, ibid para 140.
- 128- under an obligation to pay compensation and were both entitled to obtain compensation.36
It is to be noted, this case expressly refers to State responsibility for uitemationaUy wrongfiil acts37 in the context of failure to protect intemational watercourses from damage due to lack of vigilance and preventative measures. Even though this case does not relate to marine pollution, it may be seen as relating directly to marine environmental protection, including LBSMP conttol.
5.2.2 Reasonableness Use
According to this principle, oceans may be used by nations but the use has to be reasonable. Nations may not abuse their right, or unreasonably interfere with, the freedom of other nations on the high seas.^^ This principle implies a positive obhgation on nations in terms of the utilisation of the high seas for the sake of the interest of
36 The Case Conceming the Gabcikovo-Nagymaros Project, ibidpaia. 152.
37 Part 1, Chapter 1, Article 1 of the Draft Articles on State Responsibihty. See Crawford J (et al),
'The ILC Draft Articles on State Responsibility: Toward Completion of a Second Reading', supra
note 28 at 662.
38 Boyle AE, supra note 13 at 20.
129 others.39 As far as marine pollution is concemed it may be infened that the principle comes with an obligation not to poUute^o the marine and coastal waters unreasonably.
From the above discussions, it may be argued that a general obligation can be mferred under customary intemational law in relation to LBSMP contiol. The general obligation is not to cause significant harm to the legitimate interests of other states m the marine environment, and to make reparations when such harm is caused. The prescriptions of provisional measures to protect the Irish Sea from polluting activities in
MOX Plant Case are an example in this respect.
However, CIL still does not provide any strong specific principle.^i Further, it addresses only trans-boundary or intemational impacts, leaving domestic aspects of marine
3" Article 2 of 1958 Convention on High Seas. The same principle was reiterated in Article 87(2) of
LOSC. In the Icelandic Fisheries Case (1974) ICJ Reports at 4, the ICJ considered this provision
and requfred the Parties to duly take into account the interest of other states in the conservation and
equitable exploitation of high seas fishing resources.
40 Boyle AE, supra note 13 at 20-21.
41 For example, it is exfremely difficult to apply the principle of 'good neighbourliness' in relation to
the use of the seas, [Gavouneli M, Marine Pollution from Offshore Installations, (Graham and
Trotman/Martmus Nijhoff, 1995) at 83.] Altiiough the broader interpretation of this principle may
cover any part of the human envfronment, it basically covers relations between geographical
neighbours. The use of oceans may pollute or damage not only the areas, which are under coastal
jurisdiction, but also other areas including high seas or deep-sea beds where coastal states have no
authority. Traditionally tiie application of this principle does not extend to this extent.
-130- pollution confrol to the will of sovereign states. This deficiency in CIL has resulted in the call for positive intemational law on this issue.42
5.3 TREATY LAW ON LBSMP
Although the general principles laid down in CIL do not specifically deal with LBSMP, the principle enunciated in the Trail Smelter Case, for example, provided a basis for more specific and extensive conventional mles and principles in relation to LBSMP.'*^
In this respect, provisions of Intemational Conventions relevant to LBSMP confrol are considered here. They are the Geneva Conventions on the Law of the Sea, Convention on the Prevention of Maritime Pollution by Dumping of Wastes and Other Matters
{London Convention) and United Nations Convention on the Law of the Sea (LOSC).
42 Goermg KW, 'Mediterranean Protocol on Land-based Sources: Regional Response to a Pressing
Transnational Problem', Comell Intemational Law Joumal, 1980, Vol 13, at 331-332).
43 Many conventions and declarations adopted the principle estabhshed in the Trail Smelter Case.
These include Principle 21 of the Urtited Nations Conference on Human Development (11 ILM,
1972, 1416-69), Article 30 of the Charter of Economic Rights and Duties of States (GA Res 3201
(S-VI), UN GAOR Supp 1, P 3, UN Doc. A/9559 (1974), Article 194(2) of LOSC and Principle 2
of Rio Declaration on Environment and Development (1992) (31 ILM 1992 874). These principles
are very extensive ui scope compared to tiiat of tiie principle estabhshed in tiie Trial Smelter Case.
They extend responsibility not only to damage to the envfronment of otiier states, but also to areas
beyond tiie Irniits of national jurisdiction. Nevertheless, tins principle of reasonableness forms tiie
basis of these principles.
-131- 5.3.1 Early Development
Marine pollution was not a hot issue in intemational relations until recent decades.'^ In the years between the end of World War n and 1970, only slow development was evident. During this period a few Conventions were adopted, but most concenfrated on ship generated marine oil pollution.'^^ j-j^^ jg ^ 'blank period' in regard to the development of intemational law on LBSMP.'*^
44 It is tme that attempts were made (ahnost seventy-five years ago) to deal with marine pollution
issues, when, at the invitation of the United States government, experts from thirteen maritime
powers (namely Belgium, Canada, Denmark, France, Germany, Italy, Japan, the Netherlands,
Norway, Spain, Sweden, the United Kingdom, and the United States) met m Washington in June
1926 to discuss measures to prevent vessel source marine pollution. In 1934 the British govemment
made another attempt when it brought up the issue of oil pollution at the League of Nations.
Subsequentiy, in 1936 the League's Council decided to convene an intemational conference to
consider the draft, which ui essence followed tiie lines of the Washfrigton Document. However,
botii efforts failed to bring a convention mto existence. (Hakappa K, supra note 10) at 75-76. The
1926 and 1936 attempts to adopt an uitemational convention regarduig oti pollution were witiiout
success. M'Gonigle RM, and Zacher MM, Pollution Politics and Intemational Law, (Berkeley, Los
Angels and London, 1979) at 81, Hakapaa K, supra note 10 at 75.
Karau J, 'The Contiol of Land-based Sources of Marme Pollution - Recent Intemational Initiatives
and Prospects', Marine Pollution Bulletin, (1992) Vol 25, at 80.
45 A multilateral initiative for tiie protection of marine envfronment was started in 1954 by tiie
adoption of tiie International Convention for the Prevention of Pollution of the Seas by Oil. It was
amended m 1969 and 1971 respectively. Then in 1969, tiivomor e conventions were adopted, tiiat is,
the Intemational Convention Relating to Intervention on the High Seas in Case of Oil Pollution;
and Intemational Convention on Civil Liability for Oil Pollution Damage. These Conventions were
related to tiie prohibition and prevention of pollution of tiie oceans by oil. Otiier marine pollution
problems received less attention.
-132- The 1958 Law of the Sea Conference, was a major law making event in this period. The
Conference adopted four separate conventions, the:
• Convention on the Territorial Sea and the Contiguous Zone;
• Convention on the Continental Shelf;
• Convention on the High Seas; and
• Convention on Fishing and Conservation of Living Resources of the High Seas.
However, these Conventions on the Law of the Sea did not formulate any legal regime
for the control of LBSMP.
Article 24 of the Convention on the High Seas provides:
... every state shall draw up regulations to prevent pollution of tiie sea by the discharge of oil from ships or pipelines or resulting from tiie exploitation and exploration of the sea bed and its subsoil, taking account of existing freaty provisions on the subject.''^
4" Meng Quing-nan, Land-based Marine Pollution Intemational Law and Development, (Graham and
Trotman/Martinus Nijhoff, 1987) at 93. In relation to LBSMP this phase is a blank period,
however, it was a period of growing awareness. Several incidents such as tiie outbreak of Minamata
Disease (due to mercury poisoning) and Itaita Disease in Japan in 1950 and 1960s as well as
scientific research, indicated that land-based sources of marine pollution posed a serious threat to
marine envfronment and to human health.
47 The 1958 Convention on the High Seas, UNTS Vol 450, at 82).
-133- This provision is relevant to LBSMP as off-shore installations can be considered for
LBSMP. For example, Kindt considered pollution from offshore oil rigs as LBSMP'*^
and Article 3(c)(iii) of the Paris Convention for the Prevention of Marine Pollution from Land-based Sources, 1974, defines offshore installations as LBSMP.'^^
While 'leaving states much discretion'^o article 25(2) of the Convention on the High
Seas could impose obligations on states to regulate LBSMP. Article 25(2) states:
All states shall cooperate with the competent intemational organizations in taking measures for the prevention of pollution of the seas or afr space above, resulting from any activities with radio-active materials or other harmful agents.^^
48 Kmdt J, Marine Pollution and the Law of the Sea, (Wilham S Hein and Co Inc, (1986), Vol II at
743.
49 13 ILM, 1974, 352. For this defmition please see Chapter 6. However, it is to be noted tiie 1974
Convention is replaced by tiie Convention for tiie Protection of the Marine Envfronment of the
North East Atiantic 1992 (32 ILM, 1993, 1072). Article 1(e) of tiie 1992 Convention did not
mclude offshore mstallations smce LBSMP and LOSC consider pollution from oil rigs as pollution
from seabed activities ratiier tiian LBSMP.
50 Boyle AE, 'Marine Pollution Under the Law of tiie Sea', American Joumal of International Law,
1985, Vol 17, No 2 at 347-372.
51 From a historical pomt of view, it is to be noted tiiat, primarily, Articles 24 and 25 are the product of
tiie Intemational Law Commission. Paragraph 1 of draft article 48 on tiie Law of tiie Sea prepared
by flie Intemational Law Commission in 1956 used identical wording and became Article 24.
Paragraphs 2 and 3 of titis draft article were modified and mcluded as Article 25 of tiie Geneva
Convention on tiie High Seas. The above draft article 48 prepared by tiie fritemational Law
Commission on tiie Law of tiie Sea states: 1. Every state shall draw up regulations to prevent
pollution of tiie seas by discharge of oil from ships or pipelines, or resulting from tiie exploitation of
tiie sea-bed and its subsoil, takmg account of existing treaty provisions on tiie subject. 2. Every
state shall draw up regulations to prevent pollution of tiie seas from tiie dumpmg of radioactive
-134- These are the only intemational environmental law provisions prior to 1972. It is to be noted, however, that although these provisions have apphcation on the high seas, they are relevant to LBSMP because, to some extent, land-based sources (LBS) pollute the high seas. However, they failed to provide any effective regime for LBSMP. They touched on the LBSMP issue without any definition of harmfiil substances and are only applicable to high seas, omitting coastal waters under national jurisdiction, where most
LBSMP occurs.52
It is evident that, before 1972, marine pollution from substances other tiian oil did not receive any significant intemational attention, despite it being known that there were many pollutant substances other than oil.^s
Another significant development in the 1958 Conventions that is reflected in all subsequent freaties addressing marine pollution is that they concem not only frans- boimdary pollution but also pollution generation and impacts occuring entirely within a coastal states domestic jurisdiction. This represents a departure from CIL which, by reason of its emergence from interstate conflict, addresses only trans-boundary pollution. In confrast the treaties address both frans-boimdary and domestic situations.
waste. 3. All states shall cooperate in drawing up regulations with a view to tiie prevention of
pollution of the seas or afr space above, resulting from experiments or activities with radioactive
materials or other harmful agents. Year Book of Intemational Law Commission (YBILC), 1956,
Vol 2 (United Nations, NY, 1957) at 285-286.
52 Meng Quing-nan supra note 46 at 95.
53 Gold E, 'The Conttol of Marine Pollution from Ships: Responsibilities and Rights', in Chgan TA
(ed), The Law of the Sea: What Lies Ahead?, Law of the Sea Institute, 1986 at 279.
-135- 5.3.2 Development in 1970s and thereafter
In the 1970s the world community was sufficiently aroused by mounting envfronmental concem to look for new beginnings in the protection of the marine environment.^^ To this end many conventions were developed, with some relevant to LBSMP confrol. The present section covers these Conventions.
5.3.2.1 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other matters^^ (hereinafter London Convention) 1972
Although dumping is generally categorised as a distinct source of marine pollution, most marine dumping is of land generated industrial waste or land dredged silt.^^ In the
Preamble to the London Convention, the Confracting Parties noted that:
^4 Johnston DM, 'The Envfronmental Law of the Sea: Historical Development', in Johnston DM (ed),
The Environmental Law of the Sea, (Switzerland, 1981) at 41.
55 London Convention 1972, 1046 UNTS 120; 11 ILM (1972) 1291. Adopted on 29 December 1972,
with 27 states signing the Convention tiiat same day. (Leitzell T, 'The Ocean Dumping Convention
- A Hopeful Begmning', San Diego Law Review, 1978, Vol 10 at 502. As part of the preparation
for the Stockhohn Conference several workuig groups were established to formulate proposals in
specific areas. The Inter-govemmental Working Group on Marine Pollution (IWGMP) was
responsible for the protection and preservation of tiie marine envfronment. [Mendelsohn A, 'Ocean
Pollution and the 1972 United Nations Conference on the Envfronment', Joumal of Maritime Law
and Commerce, 1972, Vol 3 at 385]. From June 1971 to June 1972 IWGMP met several times to
consider a di'aft convention on ocean dumping prepared by tiie USA. In June 1972 tiie draft
convention on dumping was placed on tiie Agenda at tiie Stockhohn Conference for discussion and
signing. Finally, the Convention on Dumping was adopted on 29 December 1972. (Duncan R,
136- Marine pollution origuiates m many sources, such as dumpfrig and discharges tiu-ough the atinosphere, rivers, estuaries, outialls and pipehnes, and fr is unportant tiiat states use the best practicable means to prevent such pollution and develop products and processes which wiU reduce the amount of harmful wastes to be disposed of.^^
In addition to this preamble. Article 1 of the London Convention provides that:
Confracting Parties shaU individually and collectively promote tiie effective confrol of all sources of pollution of tiie marine envfronment, and pledge tiiemselves especially to take all practical steps to prevent tiie pollution of tiie sea by the dumping of waste and other matter that is hable to create hazards to human healtii, to harm living resources and marine hfe, to damage amenities or to interfere with other legitimate users of tiie sea.^^
In relation to marine pollution control, the preamble of the London Convention obliged the Confracting Parties to promote the effective control of all sources of marine pollution. Based on this understanding, it may be argued that the London Convention creates a general political obligation on Conttacting Parties to conttol LBSMP.
It is well known that LBSMP enters into coastal waters generally through pipehnes and outfalls.5^ Therefore, a legal framework is essential in the confrol of these particular
'The 1972 Convention on the Prevention of Marine Pollution by the Disposal of Wastes at Sea',
Journal of Maritime Law and Commerce, 1974, Vol 5 at 300.
56 UNEP, Marine Pollution from Land-based Sources, (UNEP Industry and Envfronment, June 1992)
at 3; Office of the London Dumping Convention, The London Dumping Convention: Ffrst Decade
and Beyond (Intemational Maritime Organization, London, 1991), at 55-56.
^^ The Preamble of the London Convention.
5° Article 1 of the London Convention.
5" See Chapter 2.7 supra.
-137- pollution pathways. However, the Dumping Convention addresses dumping witiiout
explicit inclusion of coastal outfalls and pipelines.^o Article 3(3) states that:
'Sea' means all marine waters other than the intemal waters of states.
The implications are that the Convention does not apply to the dumping of wastes
through ocean outfalls in intemal waters of a State.
In terms of control measures, Article 7 of this Convention focuses on vessels, aircraft
and platforms.61 In relation to dumping from outfalls and pipelines, nothing has been
specifically mentioned which makes this Convention an appropriate instrument for
LBSMP control.
The London Convention has undergone significant change since its adoption in 1972.^2
In November 1996, the Protocol to the 1972 Convention on the Prevention of Marine
Pollution by Dumping of Wastes and Other Matters (the 'London Protocol') was
60 Article 3(a) defines the dumping as: '(i) any deliberate disposal at sea of wastes or otiier matter
from vessels, afrcraft, platforms or other man-made stiructures at sea; or (u) any deliberate disposal
at sea of vessels, afrcraft, platforms or other man-made stractures at sea'.
61 Article 7 of the London Convention states tiiat each Conttacting Parties must apply measures
requfred to implement tiie Convention to all:
(a) vessels and afrcraft registered m its territory or flying its flag;
(b) vessels and aircraft loadmg in its territory or territorial seas matter which is to be dumped; and
(c) vessels and afrcraft and fixed or floating platforms under its jurisdiction beheved to be engage hi
dumping.
62 The London Convention was amended in 1978, 1980, 1989, 1993 and 1996.
-138- adopted.63 The 1996 London Protocol revised the London Convention and made new provisions, introducing the 'precautionary principle's^ and 'polluter pays principle'.^5
This Protocol broadens the definition of dumping to include any storage of wastes, or other matter, in the seabed and the subsoils, from vessels, afrcraft, platforms or otiier man-made stmctures at sea, by the abandonment or toppling at site of platforms or otiier man-made structures at sea, for the sole purpose of deliberate disposal.^s It obliges states to elfrninate pollution caused by dumping and incineration of wastes or other matter at sea to the maximum practicable extent,^^ to sfrengthen technical cooperation and assistance, and to increase hability for marine pollution confrol. The 1996 Protocol provides for a more comprehensive list for the issuing of permits for dumping (such as a waste prevention audit), the consideration of waste management options, and an assessment of the potential effects of dumping.^^ It also provides for a monitoring system to verify the permit conditions'^ and for an arbitral procedure to resolve disputes relating to compliance with permit conditions. Consequently, this means that any party to the Protocol may request an arbitiation process in the case of any disputes with another party.'^^ Although these provisions are related to dumping, some provisions.
63 Hereinafter, 1996 Protocol, 36 ILM (1997) at 1.
64 Article 3(1) of flie 1996 Protocol.
65 Article 3(2) of tiie 1996 Protocol.
66 Article 4 of tiie 1996 Protocol.
67 Article 2. Article 1 of the London Convention requfres prevention of pollution by dumping.
68 Annex2, articles 2, 5, 6, and 12-15.
69 Annex 2, Article 16 of tiie 1996 Protocol.
"70 Annex 3, Article 1 of tiie 1996 Protocol.
-139- such as for waste prevention audits in particular, may be used as tools for LBSMP confrol.7i However, the Protocol still does not exphcitly redefme 'sea' to include intemal waters, nor, include outfalls and pipehnes in its new defmition on dumping.
5.3.2.2 LOSC - Provisions in Relation to LBSMP Control
The LOSC established, for the first time, a comprehensive framework for the protection and preservation of the marine environment.'72 xhis was one of its primary objectives.'73
Part XII of LOSC^^ is devoted to the protection and preservation of marine environments. It sets out general provisions for control of all sources of marine pollution (Articles 192-206) and specific provisions for particular types of marine pollution (Articles 207-222). Articles 192-206 cover general rights and obligations of states; intemational and regional cooperation in formulating rules, standards and recommended practices; research and exchange of information; and technical and scientific assistance for the protection and preservation of the marine environment.
These provisions establish in general obligations, a foundation to develop more specific regional and global mles, standards and practices to conttol LBSMP. For example.
Article 194 of LOSC states:
"71 See Chapter 8.5 infra.
72 Chamey, JI, 'The Marine Envfronment and 1982 United Nations Convention on the Law of the
Sea', Intemational Lawyer, (1994), Vol 28, No 4 at 884. Before tiie adoption of LOSC no global
agreement was made on LBSMP,
73 LOSC preamble para 4.
74 Articles 192-237 of LOSC.
- 140- 1. States shall take, mdividually, or jomtiy as appropriate, all measures consistent with tiiis Convention that are necessary to prevent, reduce and confrol pollution of the marine envfronment from any source, using for tiiis purpose tiie best practicable means at tiiefr disposal and m accordance witii tiiefr capabilities, and tiiey shall endeavour to harmonize tiiefr policies in tiiis connection.
2. States shall take all measures necessary to ensure tiiat activities under thefr jurisdiction or confrol are so conducted as not to cause damage by pollution to other states and tiiefr envfronment, and tiiat pollution arisfrig from mcidents or activities under thefr jurisdiction or confrol does not spread beyond the areas where they exercise sovereign rights m accordance witii this Convention.
3. The measures taken pursuant to this Part shall deal witii all sources of pollution of the marine environment. These measiu-es shall include inter alia those designed to minimize to the fiillest possible extent:
tiie release of toxic, harmful or noxious substances especially tiiose which are persistent, from land-based sources,...
LOSC emphasises cooperation on a global and regional basis. Article 197 of LOSC
states:
States shall cooperate on a global basis and, as appropriate, on a regional basis, dfrectiy or through competent intemational organizations, in formulating and elaborating intemational mles, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features.
LOSC also spells out provisions on contingency plans against pollution,^^ studies,
research programs, exchange of information and data,'^' and scientific criteria for
regulations.'^^ f^e LOSC also provides provisions for notification of imminent or actual
75 Article 199.
76 Article 200.
77 Article 201.
-141 damage,78 publishing reports on marine pollution,79 assessing the potential effects of
harmful activities, and communicating reports of the results of such assessments.^o
Articles 122 and 123 emphasise cooperation in relation to the protection of enclosed and
semi-enclosed seas.
To specifically deal with the LBMP problem. Article 207 of this Convention provides:
1. States shall adopt laws and regulations to prevent, reduce and contiol pollution of the marine envfromnent from land-based sources, mcluding rivers, estuaries, pipelines and outfall stiructures, taking into account mtemationally agreed rules, standards and recommended practices and procedures.
2. States shall take other measures as may be necessary to prevent, reduce and contiol such pollution.
3. States shall endeavour to harmortize thefr policies in this connection at the appropriate regional level.
4. States, acting especially through competent intemational organizations, or diplomatic conference, shall endeavour to establish global and regional rules,
7° Articles 198 states: 'When a state becomes aware of cases in which the marine envfronment is in
imminent danger of being damaged or has been damaged by pollution, it shall immediately notify
other states it deems likely to be affected by such damage, as well as the competent intemational
organizations.'
79 Article 205 affirms: 'States shall publish reports of the results obtained pursuant to article 204 or
provide such reports at appropriate intervals to the competent intemational organizations, which
should make them available to all states.'
^0 Article 206 states: 'When states have reasonable grounds for believing that planned activities under
thefr jurisdiction or confrol may cause substantial pollution of or significant and harmfiil changes to
the marine envfronment, they shall, as far as practicable, assess tiie potential effects of such
activities on the marme envfronment and shall communicate reports of the results of such
assessments in the manner provided in article 205'.
142 standards and recommended practices and procedures to prevent, reduce and conttol pollution of the marine envfronment from land-based sources, taking into account characteristic regional features, the economic capacity of the developing states and thefr need for economic development. Such rules, standards and recommended practices and procedures shaU be re examined from time to time as necessary.
5. Laws, regulations, measures, mles, standards and recommended practices and procedures referred to in paragraphs 1, 2 and 4 shall include those designed to minimize, to the fiillest extent possible, the release of toxic, harmfiil or noxious substances, especially tiiose which are persistent, into the marine envfronment.
The most important aspects of article 207 are that it obliges states to do the following:
• [take] into account intemationally agreed rules, standards and recommended practices and procedures;
• endeavour to harmonize their policies at the appropriate regional level; and,
• act through the competent intemational organizations or diplomatic conferences to establish mles to conttol LBSMP.
Gouilloud argues that as a general norm, Article 207 serves at least three important fimctions. It:
a) provides a stimulus for national legislatures to develop or improve their laws in this area of pollution contiol,
b) serves to encourage cooperation to tiiis end on the part of neighbouring states,
and
c) provides a legal basis for the mtegration of pollution conttol pohcy, and relevant institutional arrangements, especially in coastal areas.^i
81 Gouilloud MR, 'Land-based Pollution', supra note 54 at 244.
-143- Article 207 requires states to adopt laws and regulations to prevent, reduce and conttol marine pollution from LBS, including, rivers, estuaries, pipehnes and outfall sttiictures, and taking into accoimt intemationally agreed mles, standards and recommended practices and procedures.82 Undoubtedly, this provision provides a legal foundation for the protection of the marine environment from LBS. However, the article is too general to provide useful guidance to states for LBSMP control. Accorduig to tiiis article, states are only obliged to take into account intemationally agreed mles, standards and recommended practices and procedures and take other measures in accordance with thefr national capabilities. It does not however, indicate what are intemationally agreed mles and standards, and what 'other measures' states must take into account. Further, it fails to give any indication as to the criteria to determine the suitability of the above standards and measures. Instead of general guidance, more specific intemational standards are needed to control LBSMP. However, LOSC provisions are far from satisfactory in that respect. UnHke articles dealing with pollution from ships, dumping or seabed installations. Article 207 does not require adherence to any minimum intemational standards established by intemational organisations.^^
LOSC recognises a general obligation for the diligent confrol of LBSMP, however, in relation to LBSMP conttol article 207 of LOSC has been drafted in such terms that it gives no specific content to tiie underlying obhgation of due dihgence^'^ found in
82 Article 207(1).
83 Bimie PW and Boyle AE, International Law and the Environment, (Oxford University Press, 1"^ ed
2002) at 410.
84 The idea of due dihgence is of ancient lineage and arises origmally from tiie doctrine of State
responsibility. However, due diligence can be described as a matter of competence. The general
duty of diligence mcludes tiie particular duty of competence in cases where tiie matter taken in hand
- 144- customary law.ss in article 207, vague or imprecise language is used m relation to tiie
obhgation of states to 'endeavour' to harmonise thefr national pohcies at tiie appropriate
regional leveF^ and 'to establish global and regional mles and standards' on LBSMP.s?
This is a significantly weaker and more uncertam standard of obhgation,^^ which creates
a scope for states to demonsfrate a greater readiness to claim thefr rights than to accept
their obhgations. It fails to give any indication as to the criteria which determine the
suitabihty of the intemational standards and adequate measures. That is why it has been
said that tiie obligation is so imprecisely and broadly formulated, that it does not have
much of a practical effect. ^^
As far as toxic, harmfiil and noxious, or persistent substances are concemed. State laws must minimise, to the greatest possible extent, the release of those substances.^o
However, states have a wide discretion in this respect, since such action depends on states determining which substances require regulation and control. This degree of
is of a sort requfring more than the knowledge or ability which any prudent man might be expected
to have [Pollock F, The Law of Torts, (Stevens and Sons, 1912)] at 380.
85 Boyle AE, 'Land-based Sources of Marine Pollution', supra note 13 at 25.
86 Article 207(3) of LOSC.
87 Article 207(4) of LOSC.
88 Rosenne S, 'Article 207: Pollution from Land-based Sources', in Rosenne S (et al). United Nations
Convention on the Law of the Sea 1982: A Commentary (Dordrecht, Martuius Nijhoff, 1991) at 132.
89 Churchill R and Lowe A, The Law of the Sea, (Manchester, Manchester University Press, 3"* ed,
1999) at 380.
90 LOSC 207(5).
-145- discretion raises ambiguities and acknowledges that national laws do not necessarily need to conform to intemational standards.^i
Article 213 requires states to enforce thefr LBSMP laws and regulations adopted in accordance with article 207. In addition, states must take other necessary measures to implement applicable intemational mles and standards estabhshed through competent intemational organisations, or, diplomatic conferences to prevent, reduce and confrol
LBSMP.92
LOSC provisions on LBSMP have been criticised, as they do not represent any progress on customary intemational law and are by far the weakest LOSC envfronment protection provisions for a specific source of marine pollution.^^ x^g obligations laid down in the LOSC are also less onerous and precautionary than those of subsequent regional conventions and protocols.^"*
91 Frank RA, 'Protection of tiie Marine Envfronment from Pollution', Georgia Joumal of
Intemational and Comparative Law, 1976 at 83.
92 Article 213 provides: 'States shall enforce tiiefr laws and regulations adopted in accordance with
article 207 and shall adopt laws and regulations and take otiier measures necessary to implement
applicable intemational mles and standards established tiirough competent intemational
organizations or diplomatic conferences to prevent, reduce and contiol pollution of the marine
envfronment from land-based sources.'
93 Rose G, 'Protection and Conservation of tiie Marine Envfronment', ui Tsamenyi M (et al), the
United Nations Convention on the Law of the Sea: What U means to Australia and Austi-alia's
Maritime Industries, (Centie for Maritime Policy, University of WoUongong, 1996) at 155.
94 Regional conventions are discussed and analysed m Chapter 6 infra.
-146- Article 194 of LOSC obhges states to take necessary measures to prevent marine pollution from any source including LBS. This provision contains a presumption of confrol in relation to LBSJVDP. However, it also allows states wide discretion m performing their duties by including reference to the use of 'the best practicable means' and 'in accordance with their capabilities' in this respect, ^s The insertion of those words gives a 'licence of reluctance' to states in relation to their responsibility for takmg adequate measures for LBSMP confrol, since the assessment of poUution conttol depends entirely on their capability to do so.
Article 197 of LOSC obliges states to take into account intemational and regional cooperation for marine environmental protection. However, it is without significant normative content and tends to demonsfrate that LOSC does not requfre states to take effective measures to control LBSMP.^^
Liability under the law is the obligation and responsibility home by the person concemed for any breach of law. It implies the notion of answerability as it indicates accountability for an act and the obhgation to answer for ii.^'^ This liability may add
95 It infroduces an uncertain standard for marine envfronmental protection, which indicates that a less
developed State, v^dth limited capabilities, may not be requfred to take the same costly or
sophisticated steps as a highly developed State.
96 In relation to enclosed and semi enclosed seas, Part IX of LOSC (particularly Article 123),
specifically addresses tiie regionalism issue. However, it is drafted witii exttemely vague wordmg,
without defining any substantive obhgations.
97 Brodeur JP, 'Accountability: the Search for a Theoretical Framework', m Mendes EP, (et al),
Democratic Policing and Accountability, (Ashgate, Sydney, 1999) at 137.
-147- mcentive to take due care to avoid damage^s and ensure the effective confrol of
LBSMP.99
Article 235 of LOSC addresses the liability issue for the protection of the marine
environment. It provides:
1. States are responsible for tiie fiilfihnent of tiiefr mtemational obhgations concemfrig the protection of the marine envfronment. They shall be hable m accordance with intemational law.
2. States shall ensure that recourse is available in accordance with tiiefr legal systems for prompt and adequate compensation, or other rehef, m respect of damage caused by pollution of the marine envfromnent by natural or juridical persons under thefr jurisdiction.
3. With the objective of assuring prompt and adequate compensation in respect of all damage caused by pollution to the marine envfronment. States shall cooperate in the implementation of existmg intemational law and the further development of intemational law relating to responsibility and habihty, for the assessment of, and compensation for, damage and the settlement of related disputes, as well as, where appropriate, development of criteria and procedures for pa5mient of adequate compensation, such as compulsory insurance or compensation fiinds.
This indicates that states will be liable for the non-fulfilment of obligations concerning pollution damage. Although legal redress is to be available to states, uncertainties exist.
Section 2 of Article 235 obliges states to provide recourse in their national law with
98 Mensah RA, 'The Intemational Legal Regime for the Protection and Preservation of the Marine
Envfronment from Land-based Sources of Pollution', In Boyle A and Freestone D, Intemational
Law and Sustainable Development, (Oxford University Press, 1999), at 322.
99 It is to be noted, that in relation to marine environmental issues, liability for damage occurs without
any subjective fault. This non-fault liability is useful for complicated marine pollution issues where
pollution results from disposal of pollutants and proof is difficult. LBSMP are an example in this
respect. -148- respect to damage caused by pollution to the marine environment by persons under thefr jiuisdiction, i.e. civil liability. However, it does not include cases in which damage is
caused by a State rather than individuals. The Convention deftly avoided the issue of
State habihty for sub-standard performance by providing only that states 'shaU be liable
in accordance with intemational law'.ioo with respect to land-based pollution confrol,
these provisions are vague and not helpfiil to the establishment of an adequate
standard. 101
An effective system for resolution of marine environmental disputes between coastal
states within a given region is important to encourage development of appropriate
marine and coastal envfronmental standards. Part XV of the LOSC (Articles 279-299)
creates scope to resolve the disputes between states in various matters including
disputes involving protection and preservation of the marine environment. 102 in
establishing the compulsory dispute settlement (CDS) system, these provisions
constitute a major advance^'^^ Disputes in relation to marine environmental protection
100 Smitii BD, State Responsibility and the Marine Environment, (Clarendon Press, Oxford, 1988) at
117-118.
101 Kindt JW, supra note 48 at 1142.
102 For a detailed history of the dispute settiement regime of the LOSC, see generahy Adede AO, The
System for Settlement of Disputes Under the United Nations Convention on the Law of the Sea
(Dordrecht, Martinus Nijhoff, 1987) and Rosenne S and Sohn LB (eds). United Nations Convention
on the Law of the Sea, 1982: A Commentary (Dordrecht, Martmus Nijhoff, 1989).
103 jjie prmcipal provision of compulsory dispute settiement is Article 286. It estabhshes that, subject
to specific linutations, if parties are unable to reach an akemative settlement proceeding on tiiefr
own tiien 'any dispute concemmg tiie interpretation or application of tiiis convention shall...be
submitted at the request of any party to tiie dispute to tiie court or tiibunai havmg jurisdiction under
tiiis section'. (Article 286 of LOSC). - 149- are clearly subject to the CDS procedures since no exemption exists m the LOSC to redfrect this type of dispute to a non-compulsory procedm-e.'o^ Under CDS, the decision of the court or tiibunai is final.'"^ Article 290 of the LOSC allows for prehmmary or provisional measures to prevent serious harm to the marine envfronment at the request of one of the Parties where a dispute has been submitted to a court or ttibunal.ioe
Prescribing binding provisional measures substantially advances opportunities for the protection of the marine environment from pollution by enabling its prevention, instead of a post hoc declaration of hability. The MOX Plant case is an example in this respect.
The MOX Plant Case
The MOX Plant Case concemed the protection of the Irish Sea from the risk of radioactive pollution through a proposed plant being constmcted on the Enghsh coast, freland initiated LOSC arbitration proceedings against the United Kingdom in view of the fact that the United Kingdom declined to indicate any willingness to suspend authorisation, or to prevent operation, of the proposed MOX Plant.io'^ freland considered that the discharges were incompatible with the United Kingdom's obligations to:
104 Article 297(3), Adede AO, 'The Basic Stinctiu-e of tiie Disputes Settlement Part of tiie Law of tiie
Sea Convention', Ocean Development and Intemational Law, 1982, Vol 11 at 137.
105 Article 288 of tiie LOSC.
106 Article 290(5) of tiie LOSC.
107 International Tribunal for the Law of tiie Sea, In tiie Dispute Conceming tiie MOX Plant,
Intemational Movements of Radioactive Materials, and tiie Protection of the Marine Envfronment of
tiie frish Sea {Ireland v United Kingdom), Request for Provisional Measures and Statement of Case
of Ireland, 9 November 2001, paras 51 and 52.
-150- protect the marfrie envfromnent (Article 192 of LOSC); cooperate to protect and preserve the marine envfronment (Article 123 and 197 of LOSC);l*^^ take all.. .measures ... that are necessary to prevent reduce and confrol pollution fi-om all sources,'^09 mfrumise to tiie fullest possible extent ... the release of toxic, harmful and noxious substances, especially tiiose which are persistent, from land- based sources ... (194(3)(a)).'i0 freland also considered that the proposed operation was in violation of obhgations under
Article 207 of the LOSC on pollution from land-based sources (in particular Article
207(2) and (5) of LOSC) and Article 213 of LOSC, on the enforcement of laws witii respect to pollution from land-based sources.^'^ On the basis of these considerations, and because of the urgency of the situation, Ireland requested the Tribunal to prescribe provisional measures suspending constmction of the proposed plant, relying upon
Article 290(5) of the LOSCI12. The United Kingdom requested the Tribunal to reject freland's request for provisional measures as the proposed plant was yet to be operational.^^2 In its order, the Tribunal rejected Ireland's request as it did not consider that the situation was urgent, but, nevertheless, it considered that the UK had a duty to cooperate as a fimdamental principle for marine pollution conttol under part XII of the
LOSC and general intemational law"'^ and prescribed unanimously, freland and the
108 Ibid-piLxii 56.
109 /Z,z^, para 113.
110 Ibid,pamU4.
111 Ibid, para 114.
112 Ibid, para 150. See also MOX Plant Case, Order 3 December 2001, para 27; Jomt declaration of
Judges Cantinos, Yamamoto, Ho Park, Akl, Marsh, Eiriksson and Luis Jesus.
(;http://www.itios/start2 en.html).
113 fritemational Tribunal for tiie Law of tiie Sea, Press Release (ITLOS /Press 61) 29 November 2001.
114 MOX Plant Case, Order 3 December 2001, supra note 112 para 82.
-151- United Kingdom shall cooperate and shall, for this purpose, enter mto consultations forthwith in order to:
• exchange further information with regard to possible consequences for the Irish Sea
arising out of the commissioning of the MOX Plant;
• monitor risks, or the effects, of the operation of the MOX plant for the Irish Sea; and
• devise, as appropriate, measures to prevent pollution of the marine envfronment,
which might result from the operation of the MOX Plant.'i^
Relying upon CDS procedures, this case made a significant development for the protection of the marine environment from LBSIVIP. It was considered that the rights of coastal states are important but they need to be accountable for compliance with their obligations when activities affects other states and communities. This provisional prescription also generated the application of environmental impact assessment as one of the northworthy features of intemational law of marine pollution. Although this case brought a success in terms of the apphcation of LOSC's CDS procedures, nevertheless, some uncertainties have also been observed that could affect the efficacy and credibility of this system to control LBSMP.^^^
Confrol of LBSMP can only effectively be achieved by the creation of an integrated management regime. ^ ^ "^
115 Order of the MOX Plant Case, ibid para 89.
116 See Chapter 8.3.3(b; infra.
117 Kelleher G and Kenchington R, 'Guidelines for Estabhshmg Marine Protected Areas', A Marine
Conservation and Development Repori, 1991, at 1. See also Chapter 4 5!//)ra.
-152- The principle of ocean management in an integrated and sustamable way has been enshrined in the preamble of the LOSC, which provides that:
...the problems of ocean space are closely mterrelated and need to be considered as a whole... [and] ... due regard for tiie sovereignty of aU states, a legal order fox tiie seas and oceans which will facihtate uitemational communication, and wiU promote flie peaceful uses of the seas and oceans, tiie equitable and efficient utilization of thefr resources, the conservation of thefr livmg resources, and the study, protection and preservation of the marine envfronment....' '^
Although the LOSC provides the legal basis to implement the management principles of sustainable development of marine and coastal environment and resources,!'^ it does not itself provide a framework for management.
In addition, the LOSC does not give guidance to nations on how to govern ocean and coastal areas in an integrated manner, or how to deal with the effects of one use on other uses, or how to bring ocean and coastal management together.'20 Overlapping domestic authorities in coastal management and the competing uses of coasts and oceans are problems for LBSMP conttol, require innovative institutional mechaiusms for
118 Preamble of LOSC.
119 Tsamenyi BM, 'Mechaiusms for Integrated Resource Management', Paper presented in 29th Annual
Conference of the Law of the Sea Institute, Denpasar, Bali, 19-22 June 1995 at 22. Chapter 17 of
Agenda 21 makes this issue clear m several mstances. See also Kimball, 'The UN Conference of
the Law of the Sea and Marine Envfronmental Protection', Georgetown Intemational
Environmental Law Review, (1995), Vol 7 at 746.
120 Cicin-Sam B and Knecht RW, Integrated Coastal Zone Management-Concept and Practice, (Island
Press, Washington D C, 1998) at 72.
-153 integrated coastal zone management (ICZM). The inadequate approach in LOSC to
ICZM does not advance LBSMP confrol
hi relation to prior assessment of marine environmental risk, LOSC provides a typical obhgation.121 However, the concept of the precautionary principle has not been exphcitiy enshrined in LOSC. Provisions re polluter pays principle and cleaner production are absent in LOSC.122
5.4 SOFT LAW
In relation to soft law'23 this section will focus on the Stockhohn Declaration, Montteal
Guidelines, Agenda 21 and the Global Program of Action for the Protection of the
Marine Environment from Land-based Sources (the GPA).
121 According to Birrtie and Boyle, LOSC provision in this respect is typical of a number of
conventions in the way that it formulates this obligation (Bimie PW and Boyle AE, Basic
Documents on International Law and the Environment, (Clarendon Press, Oxford, 1995) at 96). A
similar mle is to be found in other intemational and regional arrangements as well as State practices.
(For example Article 11 of the ILC Draft Articles on Intemational Liability (UN doc
A/CN.4/428(1990) UNEP, Principles of Environmental Impact Assessment (UN doc A/CN.4/428
(1987), EEC, Council Directive 85/337, OJ 1985 L 175,40; Germany, 1990 Act Conceming
Environmental Impact Assessment; Canada, 1980 Environmental Assessment Act (Ontario); 1979
Environmental Planning and Assessment Act (NSW)).
122 The adoption of these management principles in marine envfronmental resource planning and
implementation in Chapter 17 of Agenda 21 is recognition that current sectoral approaches are
inadequate for resource management and not effective for LBSMP conttol. (Tsamenyi BM, supra
note 119). For details on these principles see Chapter 4, supra.
123 For explanation see footaote 40 of Chapter 1.5 supra.
-154- 5.4.1 Stockholm Conference (1972)
Intemational environmental concem reached its first peak at the United Nations
Conference on the Human Environment, ^'^^ in Stockhohn, 5-16 June 1972. Through the
adoption of a Declaration of the United Nations Conference on tiie Human
Environmenti25 (the Stockhohn Declaration) and an Action Plan,i26 all aspects of environmental deterioration were addressed. A specific principle on the prevention and control of marine pollution was adopted and, for the fust tune, the urgent necessity for confrol of LBSMP was exphcitly recognised in a soft law.127
The Stockholm Declaration consists of a preamble with a common commitment by the participants to protect the human environment and 26 principles to inspire and guide the
124 -pjjg representatives of 113 countries participated in this Conference. (Angsman B L (et al), 'The
Stockholm Conference: A Synopsis and Analysis', Stanford Journal of Intemational Studies, Vol 8,
(1973) 31). This was the ffrst major conference where the necessity of the protection of the global
envfronment was discussed. At the end of this Conference a consensus was reached with respect to a
Master Plan for the protection of the global envfronment.
125 UN Doc A/Conf 43/14 (Report of United Nations Conference on Human Envfronment); 11 ILM
(1972) 1416.
126 11 ILM (1972) 1421. The Conference was not a law-making event and it did not formulate any
legally binding provisions for the participants. It concluded with the adoption of a declaration and
an action plan. The legal status of the Stockholm Declaration was referred to by the Preparatory
Committee in its report to General Assembly in 1971: it stated, '... the Declaration should not
formulate legally binding provisions, in particular, as regards relations between states and
individuals...'(UN Doc A/Conf 48/PC/19, (1971), paras 27-32.
127 Principle 7 of the Stockhohn Declaration.
-155- world community in its preservation and enhancement, including by unphcation, protection from trans-boundary and domestic impacts of LBSMP.
Principle 1 lays down the general obligation to protect and unprove the world environment:
Man has the fimdamental right to freedom, equality and adequate conditions of life, in an envfronment of a quality tiiat permits a life of dignity and well being and he bears a solemn responsibihty to protect and improve the envfronment for present and fiiture generations ... ^28
While the term LBSMP is not explicitly mentioned in the principles enumerated in the
Stockholm Declaration, the spirit of some of the principles closely relate to conttol of
LBSMP. One example is Principle 6. The language of this principle is very broad in
scope as the provision includes discharges on land, at sea and in the air, ^29 thus including LBSMP. Principle 6 states:
The discharge of toxic substances or of other substances and the release of heat, in such quantities or concenfrations as to exceed the capacity of the envfronment to render them harmless, must be halted in order that serious or irreversible damage is not mflicted upon ecosystems. The just stiruggle of tiie people of all countiies against pollution should be supported.'^^
128 Prmciple 1 of the Stockhohn Declaration.
129 Tunagenis GRJ, Intemational Control of Marine Pollution, (Oceania Pubhcations, Inc, 1980) at 90.
130 Report of tiie UN Conference on the Human Environment, held at Stockhohn 5-16 June 1972, UN
DOC.A/CONF.48/14, 16 June 1972 at 1416.
-156- Prmciple 7 is a specific apphcation of Principle 6,i3i as it refers specifically to marine pollution from all sources, including LBS, and explicitly imposes an obhgation on states to prevent pollution of the seas. Principle 7 states:
States shall take all possible steps to prevent pollution of the seas by substances that are hable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with otiier legitimate uses of the sea. ^32
Principle 21 is about states' responsibility and quotes:
States have, in accordance with the charter of the United Nations and the principles of intemational law, ... the responsibility to ensure that the activities within thefr jurisdiction or contiol do not cause damage to the envfronment of other states or of areas beyond limits of national jurisdiction.'^^
LBSMP affects areas, under national jurisdiction, and sometimes areas beyond national jurisdiction.134 j^ formulating an obligation to prevent trans-boundary pollution, and the contiol of pollution of the high seas, this principle is relevant to LBSMP.
The Stockholm Action Plan contains 109 recommendations on envfronmental assessment and management, as well as other supporting measures.i^s Some of the
131 Men Quing-nan supra note 46 at 97.
132 Report of the UN Conference on the Human Envfromnent, held at Stockhohn 5-16 June 1972, supra
note 129.
133 Report of the UN Conference on the Human Envfronment, held at Stockhohn 5-16 June 1972, ibid.
134 Pollution may spread to otiier parts of the envfromnent unless remedial measures are taken, Okidi,
CO, Regional Control of Ocean Pollution: Legal and Institutional Problems and Prospects, (Sijhoff
and Noordhoff The Netheriands, 1978) at 2. See also Chapter 2.8 supra.
-157- recommendations are highly relevant to, or deal with, LBSMP confrol,i36 for example,
recommendations 71, 86(f) and 92 (b).
Recommendation 71 calls for minimisation of release to the environment of toxic
substances, such as heavy metals and organochlorin compounds through the use of the
best practicable means available. Recognising that LBMSP may constittite a potential
hazard to marine ecosystems, recommendation 86(f) calls for sttengthened conttols over
such sources of marine pollution.
Recommendation 86(f) provides:
Governments, witii assistance and guidance of appropriate United Nations bodies, m particular the Jofrit Group of Experts of Scientific Aspect of Marine Pollution (GESAMP), sfrengthen national contiols over land-based sources of marine pollution in particular in enclosed and semi enclosed seas and recogrused that in some circumstances the discharge of residual heat from nuclear and other power stations may constitute a potential hazard to marine ecosystem.'^7
Recommendation 92(b) calls for governments to take early action to adopt effective national measures for the control of all significant sources of marine pollution, including land-based sources.'^s
135 Part B of this action plan contains ten recommendations that addresses marine pollution. Under the
headfrig 'identification and confrol of pollutants of broad intemational significance' there is a
section on marine pollution.
136 Meng Quing-nan, supra note 45 at 99.
137 UN Doc A/CONF. 48/14.
138 Recommendation 92(b) states: That Governments take early action to adopt effective national
measures for the contiol of all significant sources of marine pollution, including land-based sources,
-158- However, in terms of LBSMP control, the recommendations of the Stockhohn Action
Plan are far from satisfactory, as its provisions are very flexible and broad.
The Declaration is a passive document.'^9 It does not provide any confrol mechanisms
and is legally non-binding. However, it could be regarded as the start of mtemational
environmental law specifically conceming LBSMP because it represents a sttong sense
of dedication by states to establish basic mles of intemational environmental law. ^'^^ Its
approach anticipates that formulated in the LOSC soon after, in the 1970s.
Following the Stockholm Conference 1972, intemational attention became focused on
more prescriptive standards for LBSMP control. Just over a decade later The Montreal
Guidelines on the Protection of the Marine Environment from Land-based Sources
(hereinafter Monfreal Guidelines-1985) were adopted. Subsequently Agenda 21 of the
United Nations Conference on Environment and Development (Agenda 21 1992) and
the Global Program of Action for the Protection of the Marine Environment from Land-
based Sources (Washington Conference 1995) specifically addressed LBSMP control.
and concert and coordfriate tiiefr actions regionally, and where appropriate, on a wider intemational
basis.
139 Zajacek R, 'The Development of Measures to Protect tiie Marine Envuonment from Land-based
Pollution', James Cook University Law Review, (1996), Vol 3 at 72.
140 Bimie P and Boyle A, supra note 121 at 1.
- 159 - 5.4.2 Montreal Guidelines (1985)
The Monfreal Guidelines were the initiative of the Governing Council of tiie United
Nations Environment Program (UNEP), which adopted them inl985.i4i
The purpose of the Monfreal Guidelines is to assist governments in tiie process of developing appropriate bilateral, regional and multilateral agreements and m particular, national legislation for the protection of the marine envfronment from LBS. They
141 UNEP/WG.120/3 (Part IV). See also Fisher DE, 'Land-based PoUution of tiie Marine Envfronment',
Environmental and Planning Law Joumal, Vol 12, 1995, at 120. The Montevideo Program for the
Development and Periodic Review of Environmental Law (convened in Montevideo in 1981 by an
Ad Hoc Meeting of Sertior Government Officials, expert in Envfronmental Law) identified the
LBSMP as one of the priority areas that needed to be prevented, reduced and contioUed. The
working group to the Governing Council of UNEP submitted a report in May 1982. (Ad Hoc
Working Group of Experts on the Protection of the Marine Envfronment against Pollution from
Land-based Sources, UNEP/WG 120/May 1985, at 1). Approvuig tiie Program m 1982, tiie United
Nations Environment Program (UNEP) authorised the Executive Dfrector to convene a meeting of
government experts in 1983-84 to consider guidelines and principles to address LBSMP . The
Working Group of experts met three times in the years 1983 to 1985. (Geneva 1983 and 1984,
Monfreal, Canada on 11-15 April, 1985). The Montteal meeting fmahsed the Montteal Guidelines
for the Protection of tiie Marine Envfronment Against Pollution from Land-based Sources. (Ad Hoc
Working Group of Experts on the Protection of the Marine Envfronment agamst PoUution from
land-based sources, UNEP/WG 120/May 1985, at 2; see also Environmental Policy and Law, 1985,
235).
-160- provide a checklist of provisions which governments may select, adopt or elaborate, as appropriate, to meet the needs of specific regions to control LBSMP.i'*2
The Monfreal Guidelines set out responsibilities to protect and preserve the marine envfronment; prevent trans-boundary pollution; adopt measures against pollution from
LBS; cooperate on a global, regional and bilateral basis; prevent fransfer or fransformation of pollution from LBS; establish marine sanctuaries and reserves, engage in scientific and technological cooperation; and assist developing countries for the purpose of improving their capacities to prevent, reduce and confrol LBSMP.^^s
Under the heading 'special measures', specific recommendations encourage states to develop a comprehensive environmental management approach; establish joint monitoring and data management programs; imdertake environmental impact assessment; undertake all necessary measures for preventing pollution emergencies arising from LBS; engage in information exchange and consultation; adopt and implement national laws and procedures; formulate and adopt appropriate procedures for the determination of liability and compensation; report all measures, results and difficulties; and make adequate institutional arrangements. I'W It also provides a number of contiol stiategies to protect the marine environment from land-based sources. These
142 UNEP, 'Protection of the Marine Envfronment Against Pollution from Land-based Sources'
(Monfreal Guidelmes), Environmental Policy and Law, 1985, Vol 14 at 77. This gave options to
states to take into account these guidelines.
143 Montieal Guidelines 2-9; UNEP/WG 120/3 (Part IV). These guidelmes are almost identical to the
provisions of LOSC Articles 192-203.
144 Guidelmes 10-19; UNEP/WG 120/3 (Part IV).
- 161- control strategies are based on marine envfronmental quality standards, emission standards and environmental planning.^^^
The Montreal Guidelmes draw upon the LOSC and several regional agreements relating to land-based pollution of the marine environment, i''^ in particular, in their use of definitions,i'*'^ general obhgations,!'*^ special measures,i49 and specific sttategies,'^^ these guidelines incorporated 'elements and principles' common to those in existing agreements. These include Part XI1 of LOSC, the Paris Convention for the Prevention of Marine Pollution from Land-based Sources 1974 (hereinafter the Paris
Convention), 15! the Convention on the Protection of the Marine Environment of the
Baltic Sea Area 1974 (hereinafter the Helsinki Convention), 1^2 and the Protocol for the
Protection of the Mediterranean Sea Against Pollution from Land-based Sources
(hereinafter the Athens Protocol). ^^^ Thus, to a large extent, the Monfreal Guidelines repeat existing intemational legal obligations for LBSMP but in a non-binding
145 Annex 1.0 of Montieal Guidelmes.
146 Fisher DE, 'Land -based Pollution of the Marine Envfronment', supra note 140 at 120.
147 Guidehnel.
148 Guidelmes 2-9.
149 Guidelmes 10-19.
150 Aimexes 1-3. Monfreal Guidelmes describes a number of sttategies to protection the marine
envfronment from land-based sources. These contiol sfrategies are based on marine envfronmental
quality standards, emission standards and envfronmental plannmg.
151 13 ILM 1974 352.
152 13 ILM 1974 546.
153 Brown ED, The International Law of the Sea, (Dartinoutii Pubhshmg Company, 1994) at 349. 19
ILM, 1980 at 869. - 162- insti-ument. However, their significance is that they consohdated and globahsed tiiese
global obligations.
To some extent, its provisions have elaborated and advanced the LBSMP conttol
regime. The main advance is in the definitions of marine pollution and of LBS. In
relation to the definition of marine pollution these guidelines use the words 'marine
ecosystems' rather than 'marine hfe'^^^ and indicate that both living and non-hvuig
factors that may affect and pollute the marine environment must be taken into account.
Offshore facilities have been included, for the first time, in its definition of LBS.'^^
With the definition expanding, the scope of application of the Montreal Guidelines is
preferable to other marine environmental agreements, such as the LOSC.
In relation to specially protected areas the Monfreal Guidelines provide that:
... states should, consistent with intemational law, take all appropriate measures, such as the establishment of marine sanctuaries and reserves, to protect certain areas to the fullest possible extent from pollution, including from land-based sources. !5^
Although the establishment of specially protected areas have a variety of objectives
including the protection of ecologically or biologically important areas, as a
management tool they may be useful to promote integrated marine and coastal area
managementi57 and thus advance LBSMP conttol. Witii respect to the protection of
154 As stated m LOSC defmition. For defmition see Chapter 2.7 supra,
155 See Chapter 2.7 JWjcra.
156 Guideline 7 of Montteal Guidelines.
157 At its first meeting on the work of tiie United Nations Open-ended Informal Consultative Process
on Oceans and the Law of the Sea, held at United Nations Headquarters from 30 May-June 2000,
-163- specially protected areas, the LOSC made provisions, for example Articles 194(5) and
211(6), however, they are not clear in relation to LBSMP controL^ss Their apphcations
are general rather than specific to LBSMP.
The specific measiues set out in the guidelines make substantial progress in tiie process
of implementation of relevant LOSC provisions. States wishing to take positive steps to
combat LBSMP would find that these guidelines do provide specific sttategies in its
three Annexes for protecting, preserving and enhancing the quality of marine
environment, for the classification of substances, and for monitoring and data
some delegations emphasised the need to give consideration to the use of marine protected areas as
a tool of integrated ocean management. (United Nations, Report on the Work of the United Nations
Open-ended Informal Consultative Process on Oceans and the Law of the Sea, Ffrst meeting, 2000
(A/55/274), Part B, para 28).
158 Rothwell DR, 'Coastal States Sovereignty and Navigational Freedoms: Current Issues in The Asia
Pacific Region', in Tsamenyi M (et al), Rights and Responsibilities in the Maritime Environment:
National and Intemational Dilemmas, (Cenfre for Maritune Pohcy, University of Wollongong,
1996) at 21.
-164 management. 159 These stiategies provide a 'reference point' for marine envfronmental quality standards, emission standards and envfronmental planning.i^°
Nevertheless, more detailed content in the Monfreal Guidelines is lacking. They do not provide a logical scientific framework for the protection and management of the marine environment, 161 but rather, a comprehensive checklist of factors. They do not include the concept of the 'precautionary principle', the 'polluter pays principle' and 'cleaner production'. Finally, they are only recommendatory.
However, the Monfreal Guidelines are the first global instrument dfrected exclusively at
LBSMP and thus they could provide a basis for the negotiation of a global treaty. 1^2
159 UNEP, 'Protection of the Marme Envfrorunent against Pollution from Land-based Sources
(Monfreal Guidelines), Environmental Policy and Law, 1985, Vol 14 at 77. Substances are
classified mto a black and a grey list. Black list substances include organic biocides such as
organohalogen compounds, persistent hydrocarbons of petioleum origin, certain metals, persistent
synthetic materials, radioactive materials, carcinogenic substances, and products produced for
biological and chemical warfare (Annex para 1.1-1.7). Grey hsted substances are tiiose tiiat are less
noxious or more easily absorbed by natural processes, and basicaUy tiie hst includes all remaining
poUutants, which are not already black hsted.
160 Fisher DE, supra note 141 at 121.
161 Gray JS, 'Integrating Precautionary Scientific Methods into Decision Making', ui Freestone and
Hey E (eds). The Precautionary Principle and Intemational Law: The Challenge of
Implementation, (Kluwer Law Intemational, The Hague, 1996) at 144.
162 Boyle AE, supra note 13 at 34. See also Bfrnie PW and Boyle AE, Intemational Law and the
Environment, (Oxford University Press, 2002) at 418.
-165- 5.4.3 United Nations Conference on Environment and Development (UNCED) 1992
The Earth Summit, 1^3 held on the 20th anniversary of the Stockholm Conference, (June
1992), in Rio de Janeiro, gave an opportunity for the intemational community to
establish new environmental priorities.
Two major global conventions on climate change and bio-diversity were adopted at the
Earth Summit together with a number of 'soft law' instmments: the Rio Declaration,
Agenda 21, and the Forests Principles.i^^ Among these Agenda 21 is most relevant to
LBSMP.
5.4.3.1 Agenda 21
Agenda 21, the 'Sustainable Development Agenda' for the 21st centiuy, is a
comprehensive global action plan mtended to provide a framework for the achievement
of a sound, healthy and sustainable world environment, i^^
163 United Nations Conference on Environment and Development, UN DOC A/Conf 151/5/Rev 1,13
June 1992; 31 ILM (1992) at 876.
164 Wensley P, 'Global Trends: The Emergence of Intemational Envfronmental Law', m Ben Boer (et
al). Environment Outlook Law and Policy, (Federation Press, 1994) at 9.
165 One hundred and tiifrty states agreed on tiie text of Agenda 21. The Preamble for tiie Agenda 21
states: 'Humanity stands at a defmmg moment hi history. We are confronted witii a perpetiiation of
disparities between and witiiin nations, a worsenmg of poverty, hunger, til healtii and iUiteracy, and
tiie continumg deterioration of tiie ecosystems on which we depend for our weU-bemg. However,
mtegration of envfronment and development concems and greater attention to tiiem will lead to
fulfihnent of basic needs, improved living standards for aU, better protected and managed
- 166- On the basis of the reports of the Brundtiand Connnission (1989)1^6 and GESAMP
(1990),i6v LBSMP received special attention in the work of the Preparatory Commission appointed by the General Assembly. This commission was responsible for the agenda of a global conference to consider the implementation of the Bmndtland Commissions' recommendations.168 i^ this context, the Preparatory Commission requested UNEP to evaluate the effectiveness and relevance of the Monfreal Guidelines to LBSMP and to convene an intergovernmental meeting of experts to consider principles and programs to deal with scientific, technical, and economic, aspects of the problem.i69 in response,
UNEP made an extensive review of the Monfreal Guidelines and presented its report to an intergovernmental meeting of experts, held in Halifax, Nova Scotia, Canada, in May
1991. The Halifax meeting considered the continuing relevance of the Montteal
Guidelines and agreed on a coherent sttategy, which included national, regional and global elements for LBSMP conttol. This meeting also identified issues to be enhanced for implementation, including states' political commitment, institutional responsibility, mechanisms for financial support and mechanisms for information and data exchange for the 'global elements'.'"^^ From this meetmg a set of recommendations, including incorporation of appropriate sttategies with regard to the prevention and confrol of
ecosystems and a safer, more prosperous future. No nation can achieve this on its own; but together
we can - in a global partnership and sustainable development'.
166 See Chapter 4.2 supra.
167 GESAMP, Reports and Stixdies No 39, 1990.
168 General Assembly Resolution 44/228 of 22 December 1989.
169 See UNEP, 'Review of Development and Activities since 1985 - Note by tiie Secretariat', UN Doc.
UNEP/MG/IG/1/2 of 29, UNEP Review, para 25 (subsequently UNEP Review).
170 UN Doc UNEP/LBS/WG. 1/1/3. The conclusions of tiie Hahfax meeting are summarised in UNEP
Review, paras 26-30.
-167- marine poUution in general, and the contiol of LBSMP in particular, were submitted to the Preparatory Commission for the Conference. These recommendations were approved by the Conference and included in Chapter IV.i^i
5.4.3.2 Chapter 17 of Agenda 21
Chapter 17 of Agenda 21 is devoted to the protection and preservation of the world's oceans. This chapter is entitied 'Protection of the Oceans, all Kfrids of Seas, Includmg
Enclosed and Semi-enclosed Seas and Coastal Areas, and the Protection, Rational Use and Development of their Living Resources'.
It is to be noted that marine pollution contiol was not a focus for negotiation of a
septate instmment at the Earth Summit. i'^2 j^ terms of rights and obligations in relation to marine pollution conttol, the UNCED provisions generally reflect the LOSC and other existing regional agreements.i'^^ However, Chapter 17 of Agenda 21 makes a number of important recommendations to prevent, reduce, and conttol marine pollution from all sources. These include:
• the application of preventive, precautionary and anticipatory approaches to avoid
degradation of the marine environment;
171 UNEP Review, supra note 169 para 31.
172 Johnston DM, ' UNCED: The Coastal and Ocean Challenge', m Koh KL (et al), Seapol Singapore
Conference on Sustainable Development of Coastal and Ocean Area in South East Asia: Post Rio
Perspectives, Faculty of Law, Suigapore National University, 1995 at 11.
173 Intioduction, Chapter 17.1 of Agenda 21.
-168- • prior assessment of activities which have significant impacts upon marine environment;
• the integrated protection of the marine envfronment; and
• the development of economic incentives to apply clean technologies; and apphcation of the polluter pays principle, i'^^
It also recommends that the living standards of coastal populations, particularly in
developmg countiies, be improved.i^s Recommendation is also made for additional
financial resources, through appropriate intemational mechanisms, as well as access to
cleaner technologies and relevant research to support developing countiies to implement
environmental commitments. 1^6
Most of these recommendations, including integrated management of marine and coastal areas, are usefiil for LBSMP confrol.i77 Chapter 17F of Agenda 21 emphasises
174 See Chapter 4, supra.
175 In this context, program area B, of Chapter 17. of Agenda 21, which relates to marine
envfronmental protection is relevant. The objective of this program area is as follows; 'States, in
accordance with the provisions of the UN Convention of the Law of the Sea on the protection and
preservation of the marine envfronment, commit themselves in accordance with thefr pohcies,
priorities and resources to prevent, reduce and confrol degradation of the marine envfronment so as
to improve its life support and productive capacities' (Chapter 17.22). In relation to LBSMP conttol
the recommendations made in program area A of Chapter 17 are usefiil as it relates to Integrated
Management and Sustainable Development of Coastal and Marine Areas.
176 Chapter 17.23.
177 Agenda 21 identifies seven core programme areas within the oceans chapter. Among other issues,
integrated management and sustainable management in coastal areas have been covered in Chapter
- 169- the promotion of institutional arrangements necessary to support the unplementation of the program areas,i78 pledges states to provide mformation exchange and better linkages
among regional and mtemational and other organisations,!'^^ a^^ encourages
cooperation between developers and envfronmentahsts to maximise the maritune
environmental capacity for ICZM and sustainable development, i^o
Chapter 17.24-17.29 specify the actions needed to be taken to prevent, reduce and
control marine envfronment from LBS. In this context, the document prescribes that
states should:
• take action at the national levels to confrol LBSMP and take into account Monfreal Guidelines in this respect;'^!
17 of Agenda 21, which deals with ocean and coastal issues (program area A of Chapter 17). It
notes that each coastal State should consider establishing, or, where necessary, sttengthening
appropriate coordinating mechanisms (such as a high level policy planning body) to ensure
integrated management and sustainable management (Agenda 21, para 17.6). A series of suggested
actions have been provided in its subsequent paras in this respect. This issue has been highhghted
in GPA 1995. It provides that 'states should ... focus on sustainable, pragmatic and integrated
envfronmental management approaches and processes such as integrated coastal area management,
harmortized, as appropriate, with river basin management and land use plans' (Joint Inter
Secretariat/ Interagency Consultation of the Global Program of Action for the Protection of the
Marine Environment from Land-based Activities, UNEP (WATER)/LBA/IS-IA.l/6, Infroduction,
para 19). See Chapter 4.2 and 4.3 supra.
178 Agenda 21, para 17.121.
179 Agenda 21, para 17.117.
180 Dhal AL, 'Land-based Pollution and Integrated Management', Marine Policy, 1993 at 564-8.
181 Chapter 17.24.
-170- - • consider updating, sttengtiienfrig and extending tiie Montteal Guidelines, as appropriate; assess the effectiveness of existing regional agreements and action plans, where appropriate; develop policy guidance for relevant global fundmg mechanisms;! ^2
• convene, as soon as practicable, an inter-govemmental meetmg on tiie protection of the marine envfronment from LBS;!^^
• give priority to sewage discharge and estabhsh regulatory and monitoring programs to confrol effluents' discharges;!^'*
• eliminate the discharge of organohalogen compounds, reduce use of synthetic orgaiuc compounds, confrol inputs of nifrogen and phosphorus into the sea water, promote the use of less harmful pesticides and fertilizers and undertake new initiatives at national, subregional and regional levels for conttoUing the input of non point source poUutants!^^ conttol; and
• prevent coastal erosion and siltation due to anthropogeruc factors related to, inter alia, land use and constmction techniques and practices. ^^^
The relevance of this list lies in its selection and organisation of some of the multitudes of possible LBSMP control action in to an agreed agenda for priority specific implementation.
Chapter 17 of Agenda 21 remains a fundamental programme of action for implementation. The UNEP Goveming Council at its twentieth session (Nafrobi, 1-5
Febmary 1999) adopted decision 20/19 B in which it, inter alia, recommended that the
182 Chapter 17.25.
183 Chapter 17.26. Agenda 21 requested the goveming council of the UNEP to make more concrete
measures, and to frnplement its recommendations and directives related to LBSMP.
184 Chapter 17.27.
185 Chapter 17.28.
186 Chapter 17.29.
-171- Commission on Sustainable Development, (which is responsible for monitoring frff the implementation of Agenda 21) should consider ways to promote the early implementation of the programme as one of the components of implementing Chapter
17 of Agenda 21. It should also discuss recommendations with the relevant United
Nations agencies, bodies and programmes.'^"^ Pursuant to the above recommendation, in its seventh session, the Commission on Sustainable Development reiterated the importance of Chapter 17 of Agenda 21 on LBSMPi^^ and emphasised the need for capacity building and cooperation at national, regional and global levels for the implementation of the relevant provisions which were outlined and set up in the document.! ^9
5.4.4 Washington Conference 1995
The Conference on the Protection of the Marine Environment from LBSMP (the
Washington Conference) was held in Washington, from 23 October to 3 November
187 Oceans and tiie Law of tiie Sea, Repori of the Secretary General, (A/54/429), 30 September 1999,
para 372 (land-based sources of pollution).
188 Commission on Sustamable Development, Decision 7/1. Ocean and Seas, 1999 (Document
E/1999/25, para 1(b)).
189 This issue was pomted out in tiie Review of tiie Sectoral Theme of 'Oceans and Seas' by the
Commission on Sustainable Development in 1999. Oceans and tiie Law of tiie Sea, Repori of the
Secretary General, (A/54/429), 30 September 1999, paras 634-35.
-172- 1995, and coorduiated by UNEP, in close cooperation with inter-govemmental and non governmental organisations (NGOs).!9o
This Conference was convened by UNEP in direct response to the recommendations made in Chapter 17 of Agenda 21,!^! which aimed to develop a Global Program of
Action to Prevent, Reduce and Control LBSMP, (hereinafter GPA). In convening this
Conference the UNEP Goveming Council took into account the findings and propositions of the Commission for Sustainable Development (CSD) on progress in implementation of Chapter 17 of Agenda 21. The preparation for this global
Conference consisted of a series of meetings of:
1. experts to assess the effectiveness of selected regional agreements on LBSMP;!^2
2. govemment designated experts to discuss possible amendments to the Monfreal
Guidelines and to consider additional areas of intemational co-operation (held in
December 1993 at UNEP headquarters in Nairobi);!^^ and
3. govemment designated experts to develop and revise the draft program of the
action (held in Reykjavik from 6-10 March 1995).i94
190 Tiie Conference was attended by over 100 states, 17 global and regional intemational organizations
and 27 non-governmental organizations, UNEP Report, Rio Follow up Marine Environment
Environmental Policy and Law, (1996) Vol 26 at 11.
191 Para 17.26 of Agenda 21.
192 Discussed in Chapter 6, infra.
193 A discussion was presented earher in tiiis chapter on Montteal Guidelines.
194 See UNEP Review, supra note 169 para 35.
-173- The Washington Conference was a success as it took a major step towards the protection of the marine envfronment from LBSMP.i^s x^g participants unanimously adopted the Washington Declaration on Protecting the Marine Envfronment from Land- based Sources and a Global Program of Action for the Protection of the Marine
Envfronment from Land-based Activities (the GPA).!^^
5.4.5 The GPA
In principle, the GPA provides valuable insights as to what is needed to deal more effectively with the LBSMP problem and how states might be persuaded, encouraged or assisted. It provides certain criteria to ensure successfiil implementations of its program, such as, establishing and strengthening regional and global networks; encouraging and facilitating interregional cooperation and establishing and supporting the necessary Secretariat services for regional cooperative arrangements.'^'^ The text is arranged as follows:
195 Although it should be noted tiiat efforts to estabhsh a global convention were thwarted by this
Conference and tiie adoption of the GPA is considered as second best by some (e.g. Nordic)
countiies. Although the GPA is soft law, fr is expected to contiibute substantiaUy to the progressive
development m tiie Law of tiie Sea. (United Nations, Fifty Ffrst session. Agenda Item 24(1), Repori
of the Secretary General, 1996, (A/51/645, 1 November 1996), para 200.
196 The Washington Conference adopted the Washington Declaration on Protection of the Marine
Envfronment from Land-based Activities and adopted a Global Program of Action for the Protection
of tiie Marine Envfromnent from Land-based Activities (GPA). UNEP (OCA)/LBA/IG, 2/7,
Environmental Policy and Law, 1996, Vol 26, No 1, at 38.
197 Basiron N, 'The Global Program of Action for tiie Protection of tiie Marine Envfronment from
Land-based Activities,' MIMA Bulletin, 1996, Vol 3, No 3, at 3.
-174. • Chapter I - Infroduction
• Chapter II - Actions at the National Level
• Chapter III - Regional Cooperation
• Chapter IV - Intemational Cooperation
• Chapter V - Recommended Approaches by Source Category
Following the infroduction in Chapter I, Chapter II of the GPA aims to develop comprehensive, continuing and adaptive programs of action at the national level.'^^
These include:
a) identification and assessment of:
(i) the nature and severity of problems caused by marine pollution in public
health; coastal and marine resources and ecosystem health;
(ii) contaminants such as sewage, persistent organic pollutants (POPs), heavy
metals, nutrients, sediment mobilisation; and
(iii) physical alteration including habitat modification and destmction; sources
of degradation (point and non point sources); and areas of concem that are
affected or vuhierable, such as coastal lagoons and mangrove forests, and
coastal watersheds.!^5
(b) establishment of priorities for each area affected (including its uses and the importance of its ecological characteristics)200 and application of mtegrated
198 Para 18 of GPA.
199 Para 21 of GPA.
200 Para 22 of GPA.
-175- coastal area management, watershed management, EIA procedures, the
precautionary approach and the principle of inter-generational equity .201
(c) setting out specific management objectives both with respect to source categories and areas affected.202
(d) adopting specific measures, including, best available techniques and practices,
best management practices, environmental quality criteria, land use planning,
long term and short term data collection, monitoring and envfronmental
reporting, and identification of sources of finance and mechanisms available to
cover the costs of administering and managing the sfrategies and programs to
achieve sustainable management.203
(e) development of specific criteria to evaluate environmental effectiveness and
economic costs and benefits.
(f) program support measures for organisational arrangements to coordinate among sectors and sectoral institutions, legal and enforcement mechanisms (e.g. new legislation), financial mechanisms, means of identifying and pursuing research and monitoring requirements in support of the program, contingency planning, human resource development and education and public participation and awareness.204
Chapters III and IV emphasise regional cooperation and mtemational cooperation respectively.
201 Para 23 of GPA.
202 Para 25 of GPA.
203 Para 26 of GPA.
204 Para 28 of GPA.
-176- Regional cooperation is a cmcial issue, particularly, where countries have coasts in the same marine area, most notably, in enclosed or semi-enclosed seas .205 The GPA calls for states to actively participate in strengthening existing regional and subregional agreements, conventions and related arrangements, and to negotiate new regional conventions and programs.206 With respect to institutional aspects of regional and subregional arrangements, it recommends that states invite multilateral fmancing agencies and other development institutions to cooperate in programming and in implementing regional agreements.207
To successfiilly effect implementation of the GPA program, Chapter IV sttesses the role of intemational cooperation in enhancing capacity building, technology ttansfer and financial support.208 At the global level, it recommends regular review of the state of the world's marine environment. In terms of intemational cooperation, it makes provision for capacity building, including, mobilisation of resources and information, experience and expertise,209 and for a Clearing-House mechanism.2io The latter is a referral system through which decision-makers would be provided v^th up-to-date
205 Para 29 of GPA.
206 Para 31 of GPA.
207 Para 32 of GPA.
208 Para 45 of GPA.
209 Para 50 of GPA.
210 United Nations, Commission on Sustamable Development, OveraU Progress Achieved Since the
United Nations Conference on Envirormient and Development, Report of the Secretary General,
E/CN. 17/1997/2, 31 January 1997, para 72.
-177- information, practical experience, and scientific and technical expertise for the global program of LBSMP control. 2!!
The GPA also calls on states to take specific global measures to develop a global, legally binding instmment, on persistent organic pollutants (POPs)2!2 and to develop plans to deal with the inadequate tteatment of wastewater or sewage. It also recommends the preparation of a proposal to address the global nature of the problem of the inadequate management and freatment of waste water via pipelines, including dfrect waste water discharges from coastal and upsfream communities and cities. In that hght, a series of regional workshops in different regions, involving development of pragmatic and integrated coastal area management plans, is suggested.2!3
The fifth and final chapter of the GPA provides detailed strategies for management of sewage, POPs, radioactive substances, heavy metals, hydrocarbons, nutrients, sediment mobihsation, htter, and the physical alteration and destmction of habitats. For each of these, the GPA provides guidance on actions that need to be taken by states at regional and intemational levels in accordance with their capacities, priorities and resources.2i4
In terms of the implementation of various other projects tiiat are related to LBSMP control, the GPA has adopted instinctive policies and sfrategies particularly m terms of funding. In order to promote, facilitate and finance Agenda 21 LBSMP objectives for
211 Para 51 of GPA.
212 GPA para 88(a). fr is to be noted tiiat on tins issue an uitemational convention, Stockholm
Convention on Persistent Organic Pollutants, was adopted in 2001.
213 Additional areas of intemational cooperation, paras 93-99.
214 Chapter 5 of GPA, paras 94-160.
- 178- developing coimtries, and countries m economic fransition, the GPA called upon UNEP, the World Bank, the United Nations Development Program (UNDP), Regional
Development Banks, and other Agencies within the United Nations system, to support and sttengthen measures and activities for the protection of the marine environment from LBS.
Assistance from the Global Environment Facility (GEF) has become significant in the
GPA.2!5 Under its Operational Sfrategy, the GEF has undertaken a catalytic role to protect intemational waters from degradation caused mainly by pollution from land- based activities.2!6 The GEF aims to overcome barriers to organisational leamuig and to reduce transaction costs of workmg together in strengthening, or developing, a regional institutional framework for water pollution confrol. In this respect GEF fimded activities are to meet the agreed incremental costs of
• assisting groups of countries to better understand the environmental concems of
their intemational waters and work collaboratively to address tiiem;
• building the capacity of existing institiitions to utihse a more comprehensive
approach for ttans-boundary water pollution conttol; and
215 Accorduig to Annex II of tiie GPA, further possible private extemal fimdmg sources mclude tiie
intemational commercial banks, export credit agencies, multilateral loans and multilateral equity
fimds. (GPA, Annex H, Washington Declaration on the Protection of the Marine Environment from
Land-based Activities, para 12). Agenda 21 para 17.23 and GPA, para 13.
216 Operational Sttategy of tiie Global Envfronment Factiity, Chapter 4.
rhttp://www.gefweb.org/publir/np.stt-at/ch4.httii).
179- • implementing measures for water pollution conttol.2!^
As of June 2000, a total of 753 projects were funded under the GEF work progranimes.2!8 The total fimding for these projects was US$2,974 milhon and by value, 13 percent were for intemational waters projects, including LBSMP conttol.2!^ It
should also be noted that more than 60 regional and global NGO networks are involved
in the design and implementation of GEF funded projects relating to LBSMP conttol.220
The GPA is well stmctured for identifying LBSMP problems and estabhshing certam
criteria for their effective control. It has initiated and proposed a coherent sttategy and
methodology to develop programmes of action at national, regional and intemational
levels. It has established the programmatic links between various GPA activities and
integrated legal, economic and technological policies. It has also promoted civic
participation in marine environmental policies to control LBSMP.
A UNEP coordinating office for the GPA was established in November 1997, becommg
fiilly operational in 1999, in The Hague. It has put in place various mechanisms as part
of the process of implementing the GPA. Thus, it has developed a Clearing-House
mechanism in cooperation with the Worid Health Organization (WHO), United Nations
217 Operational Sfrategy, ibid.
218 Global Envfronment Facility (GEF), Project Performance Repori 2000, GEF Council, Agenda Item
9, 9-11 May 2001 atl.
219 GEF, ibid.
220 Global Environment Facility Focal Pomts,
rhitp-//wwwPefweb.nrp/participart':/Fnr-al Pouits/focal pomts.httnl).
180- Educational and Scientific Cooperation (UNESCO), filter-governmental Oceanic
Commission (IOC), Intemational Maritune Organization (IMO), Intemational Atomic
Energy Commission (IAEA), and the Food and Agricultural Organization (FAO). The
Clearing-House has mobilised experience and expertise, facihtated scientific, technical and.financial cooperation as well as improved capacity building. A number of institiitions, such as the Worid-Wide Fund for Nature (WWF) and Worid Conservation
Union (lUCN), are also currently involved in implementing the GPA.22! fri response to the United Nations General Assembly Resolution (Resolution 51/189), a pilot project was undertaken by Canada in collaboration with IMO to prepare a Clearing-House mechanism for oil and litter in the marine environment.222 Also, projects such as the
Trans-boundary Diagnostic Analysis and Strategic Action Plan projects in the
Mediterranean, South China, and Red Sea and in the Russian Arctic Area, along with regional assessments of persistent toxic substances, are being developed by the GPA.
Of course, full implementation of the GPA mechanisms has not yet been achieved. The
GPA is recommendatory and has no binding force in intemational law and, although some progress has been made to implement it, m many respects the progress rate of
221 Melvasalo T, 'Cleaning the Seas' Our Planet (The UNEP Magazme for Envfronmentally
Sustamable Development), UNEP, Vol 9, No 5 1998 at 21; UNEP/GPA, Coordfriation office of tiie
Global Program of Action for the Protection of the Marine Envfronment from Land-based
Activities.
222 This mitiative was taken by UN General Assembly in its Resolution 51/189 and called upon IMO to
develop a clearinghouse mechanism for oil and Utter m tiie marine envfronment. InitiaUy IMO
refiised to undertake this task as its mandate extends to ship based activities and no additional frmds
were provided to work on land-based activities. However, in 1999 Canada responded to work on
tills issue m collaboration with IMO. Fayette, L de La, 'The Protection of tiie Marine Envfronment',
Environmental Policy and Law, 2000, Vol 30, Nos 1-2 at 60.
-181- implementation is unsatisfactory223 and slow.224 Participation m tiie expert group
meetings dealfrig with the unplementation of GPA is low.225 Development has been
achieved in some regions, rather than most of the world's oceans.226
Nonetheless, the GPA enhances the global system of ocean govemance227 by achievmg
some progress in relation to LBSMP control. These include coherent sttategy for
LBSMP, Clearing-House mechanisms, projects initiation and fimding, private sector
management, adoption and promotion of intemational management principles and
mtegrated approach from national through regional and intemational levels. All tiiese
indicate that the GPA is a positive step towards a global convention on LBSMP.
5.5 CONCLUSION
Discussion in this chapter has revealed that a concrete and effective agreement at a
global level on LBSMP control has not yet been forthcoming. CIL is vague and very
223 According to a study undertaken by the World Resources Institute, about hah" of the world's coasts
are threatened by development related activities. This wide impact includes intensified coastal
erosion, decreased protection from storm damage, and loss of bio-diversity (World Resource
Institiite, 1999).
224 CSD Decision 7/1 'Ocean and Seas', 1999, para 26 (Lad based Activities).
225 United Nations General Assembly, Advance, Unedited Text, Fifty-sbcth Session, Oceans and the
Law of the Sea, 28 March, 2001, para 328. However, the adoption of Stockholm Convention on
Persistent Organic Pollutants, 2001, is an important achievement.
226 United Nations General Assembly, Advance, Unedited Text, ibid para 327. See also Chapter 6,
infra.
227 Borgese EM, 'The Regional Seas Program - A New Dfrection', GPA News Forum, UNEP,
Information to tiie delegates of the 1999 SIDS/UNGASS.
-182- general in regard to LBSMP confrol. The MOX Plant Case bought a development in
CIL as it exphcitiy addresses LBSMP and imposes obhgation to control LBSMP.
However, this case also addresses only trans-boundary unpacts. Domestic impacts of
LBSMP are totaUy absent in CIL although LBSMP is an essentially a domestic problem. There is no exphcit application of intemational management principles ui CIL.
Dealing with domestic as well as trans-boundary impacts of LBSMP, freaty law represents a departure from CIL. However, the early treaties were not specific to
LBSMP and they did not formulate any legal regime to LBSMP confrol. Intemational management principles are absent in early treaties. The LOSC, the only global treaty that specifically addresses LBSMP control, 228 does so, however, only in general terms.
Its provisions are too general in establishing specific intemational standards to confrol
LBSMP. There is no provision for precautionary, polluter pays and cleaner production principles in LOSC. It does not provide any guidance to conttol LBSMP in an integrated and sustainable manner.
Soft law has adopted more specific prescriptions to conttol LBSMP. For example
Chapter 17 of Agenda 21 has recommended to apply intemational management principles including, polluter pays and clean technology to conttol LBSMP. It also recommended developing policy guidance for relevant global fimdmg mechanisms. The
GPA has provided detailed management sttategies for the conttol of LBSMP in an integrated and sustainable manner. It has also sttessed for intemational and regional cooperation in enhancing capacity building, technology ttansfer and financial support.
In this context it called upon a number of financial institutions includmg the World
Bank and the UNDP, and advanced intemational cooperation to combat LBSMP.
228 See Article 207(1) of tiie LOSC in section 5.3.2.2 of tiiis chapter. -183- However, these soft laws ^e of a non-binding nature. They are recommendatory.
Therefore, recommendations of these soft laws remain largely unimplemented.
Effective conttol of LBSMP requires that the mles and standards established by mtemational agreements be genuinely implemented. In this regard intemational efforts should be complemented by regional approaches. Although global efforts are important, in the Washington Declaration, governments have also declared their intention to make regional efforts to protect and preserve the marine environment from
LBSMP.229 The United Nations Commission on Sustainable Development, in an assessment on the overall progress since the Rio Declaration 1992, has also emphasised regional approaches. It has been stated that 'while important agreements have been concluded at the global level, implementation will be better addressed at the regional level.'230
At this stage, the GPA is the most important global instrument on LBSMP. Success in the battle against LBSMP is not possible without implementation of the GPA provisions. To this end, the GPA is generally being implemented under tiie UNEP
Regional Seas Program and progress is being made towards the fiilfihnent of the objectives of the GPA. The next chapter will deal with LBSMP conttol in the regional context. The need for more planned and effective intemational cooperation revealed fri
229 UNEP (WATER) GPA-IG.2/2, Status Report on Implementation of the Global Program of Action of
the Marine Environment from Land-based Activities, Informal Inter-govemmental Consultation to
Review Current Status and Further Steps hi frnplementation of tiie GPA, tiie Hague, The
Netiierlands, 11-12 May 1998, clause 8.
230 United Nations, Commission on Sustamable Development, supra note 210 para 74. See Chapter 6.4
infi-a.
-184- this chapter, will also be evidenced at a regional level. And the combined examination of the intemational and regional mles and policies in Chapters Five and Six will be the basis of a thorough case study in Chapter Seven. It will be noted that examination, analysis and lessons in these chapters all point to the need for workable cooperative arrangements to LBSMP conttol. This theme will be fiilly explored in Chapter Eight.
-185 CHAPTER 6: REGIONAL FRAMEWORKS FOR lAND-BASED SOURCES OF MARINE POLLUTION CONTROL
6.1 INTRODUCTION
Regional efforts reflect the recognition that there are problems and interests which are larger than national, and in which national actors can participate, but yet which are not global in scope.^ These are typically special to a particular locahty, and not amenable to effective treatment through global mle making.2 In this context, the management of problems in enclosed or semi-enclosed seas, the management of regional pelagic fisheries and certain regional efforts pertaining to scientific inquiry and information gathering,^ are important. In relation to joint regional efforts to combat LBSMP, the term 'regional' is defined as, 'efforts by three or more states to manage the oceans and their resources."^
The objective of Chapter Six is to describe new developments and fill the gaps in literature addressing regional efforts to confrol LBSMP. It analyses regional approaches
Stem RE, 'The Promotion of Regional Organizations fri Managmg Man's Envfronment,' m
Hargrove JL, (ed). Law, Institutions and the Global Environment, (Oceania Pubhcation, Inc: New
York, 1972) at 255.
See Nelson LDM, 'The Functions of Regionalism in the Emergmg Law of the Sea as Reflected in
tiie Informal Composite Negotiatmg Text', in Johnston DM (ed), Regionalization of the Law of the
5ea, (1978) at 17-30.
Bilder RB, 'The Consequences of Regionalization ui the Treaty and Customary Law of the Sea' m
Johnston DM (ed), Regionalization of the Law of the Sea, (1978) at 32.
Alexander LM, 'Regionalism at Sea: Concept and Reality', m Johnston DM, (ed). Regionalism of
the Law of the Sea, (Balinger Pubhshing Co: Cambridge, 1978) at 3.
186 and comments on developments to confrol LBSMP. In this context the chapter explores the legal and institutional developments in different regions of the world's oceans.
These include advanced efforts in the improvement of LBSMP confrol in the North-East
Atlantic region, Baltic Sea region and the UNEP regional seas program. This chapter also identifies the weaknesses of regional approaches. All these arrangements are examined with a view to assessing what progress has been made to achieve the goal of
LBSMP confrol under regional framework.
To understand the regional arrangements and to measure the extent to which benchmarks in Chapter Four have been applied, the methodology adopted in this chapter is a comparative approach. It analyses the contents of various regional instruments and evaluates them by comparing regional implementation programs and measures on LBSMP confrol to identify best practice.
Although LBSMP can be transported globally, they are most intensely felt at regional levels. Schumacher notes that, 'most land-based pollutants are not transported far from tiieir sources of discharge'^. It is due to this reason, that a regional approach is advocated for LBSMP confrol. The Paris Convention on the Prevention of Marine
Pollution from Land-based Sources, 1974,^ and the Convention on the Protection of the
Marine Environment of the Baltic Sea Area, 1974"^ are the pioneer legal mstinments for regional confrol. Followmg this regional approach, the UNEP Regional Seas Program
(hereinafter RSP) has been playing a key role in LBSMP confrol. The program has
^ Schumacher M (et al), 'Land-based Sources of Marine Pollution in tiie Caribbean Region:
Incentives and prospects for an Effective Regional Protocol', Marine Policy, 1996, Vol 20 at 102.
6 13 ILM 1974 at 352.
7 13 ILM 1974 at 546. -187- created an institutional framework to combat all forms of marine pollution, including
LBSMP at regional levels. Each regional program provides an opportunity to look very broadly at LBSMP problems such as causes of marine and coastal degradation in each specific region. Taking into account their particular priorities, needs and capabihties, this program formulates action plans in various regions to effectively control LBSMP.^
Chapter Six commences with a discussion on 'a regional approach for LBSMP confrol'. Non-UNEP regional legal instruments on LBSMP confrol are highlighted and discussed next. The chapter then focuses on the United Nations Environment Programs'
(UNEP) initiatives to confrol LBSMP under its Regional Seas Program.
The chapter concludes that, although some regional arrangements have advanced
LBSMP control, development of LBSMP conttol is still confined to a few limited regions of the world's oceans.
6.2 REGIONAL APPROACH FOR LBSMP CONTROL
In general, there is a natural tendency toward regionahsm based on the homogeneity of interests, fraditions, and values within small groups of neighbouring states.^ Pohtical,
Each action plan contams five basic elements: envfronmental assessment, envfronmental
management, legal requfrements, institiitional arrangements and fmancial arrangements. However,
dependmg on the situation of a particular region, optional or region-specific measures such as
coordination, supporting measures (e.g. ttammg and public awareness), and development of human
resources, may also be added to each action plan. (Jacobson MA, United Nations Envfronment
Program: How does it Measure Up?, Coastal Management, 1995, Vol 23, No 1 at 21.
Benet AL, Intemational Organizations: Principles and Issues (Prentice HaU Inc: New Jersey, 1977)
at 289. economic, social and cultural integration and cooperation are more easily attamedio within a given region to estabhsh mechanisms for environmental development and
confrol. This suggests that, to facilitate environmental protection, 'environmental
standards must be tailored to reflect local conditions and varying public preferences'ii.
Caldwell points out:
In a world of nations, most of the actual work of envfronmental protection is done at the local level with the involvement or cooperation of national govemment. Nearly every nation has a stated pohcy for the envfronment, and by tteaty or statute, some national policies extend to intemational commitments. And because many environmental poUcies ttanscend national boundaries but fall short of being global, governments have developed bilateral or regional arrangements to deal cooperatively with matters that they cannot effectively manage separately. ^2
Although there are some arguments against LBSMP control at the regional level,^^ at
present they have lost their retentive power. The regional approach has proven to be
enormously atfractive and, to a certain extent, successful for LBSMP since the late
^0 Benet AL, ibid.
^^ Faure MG, Enforcement Issues for Envfronmental Legislation in Developing Countries,
UNU/INTECH Workmg Paper No 19, March 1995 at 22.
12 Caldwell LK, International Environmental Policy, (2nd ed, Duke University Press, London, 1990)
at 129.
13 For the detaUs of this debate see Boczek BA, 'Global and Regional Approaches to the Protection
and Preservation of the Marine Environment', Case Western Reserve Joumal of Intemational Law,
1984, Vol 16 at 38; NoUkaemper A, 'Marine Pollution from Land-based Sources: Towards a Global
Approach', Marine Pollution Bulletin, 1992, Vol 24, No 1 at 8. The case for a global sttategy is
derived from the inadequacy of existmg regional approaches to land-based sources.
-189- 1960s. 14 This is because the nature and scope of land-based pollutants differ from one region to another according to 'thefr special hydrographical and ecological characteristics, as well as the predomuiant pattems of mdustrial and economic development'. 15
LBSMP are highly specific for different regions. i6 They can cause real disasters in regions with specific geo-ecological feattues. Predominantly, these include, shallow, enclosed or semi enclosed seas, as they are especially sensitive and receive substantial contamination from land and the coasts.i'^ In this context, the Baltic Sea, the North Sea, the Mediterranean, the Gulf of Mexico, and the Gulf of Thailand are all examples. The
United Nations Joint Group of Experts of Scientific Aspects of Marine Pollution
(GESAMP) Report 1992 stated:
In some cases the living resources have been locally contaminated to such a degree that fishing has been stopped in linuted areas, sometimes leading to suspicion among consumers that fish caught elsewhere in adjacent areas may be
1^ In legal terms, the 1969 Bonn Convention on the Prevention of Pollution of the North Sea was the
start of regional efforts for marine pollution confrol.
1^ Kowabara S, The Legal Regime of the Protection of the Mediterranean against Pollution from Land-
based Sources, (Tycooly Intemational Publishing Lunited Dublm, 1984) at 20.
16 UNEP, 'Review of Development Activities suice 1985-Note by the Secretariat', UN Doc.
UNEP/MG/Ig/1/2, para 11 at 515.
1^ On this problem refer to UK Department of Envfronment, Quality status of the North Sea (1987);
Kuwabara S, The Legal Regime of the Protection of the Mediterranean against Land-based Sources,
(Tycooly fritemational Publishing Ltd. 1984) Chapter 1; Clark (ed). Marine Pollution (Oxford
1986), Chapter 10; Sibthorp (ed). The North Sea: Challenge and Opportunity (London 1975), 22 ff;
Helsinki Commission, Ffrst Periodic Assessment of tiie state of tiie Marme Envfronment of tiie
Baltic Sea Area (Helsinki 1985).
-190- contaminated and tiius causing problems for tiie marketing of the fish from whole regions. In a number of 'hot spots', tiie ecosystem balance has been distiffbed. In one area of tiie North Sea (tiie Waddensea), and tiie Baltic Sea, pollution has been hnplicated in reducmg the population of some marine annuals. 1^
Unlike vessel source pollution, LBSMP usually affects local coastal interests, and therefore the global community shares a smaller part of tiie environmental cost.
Because of this, the frend in legal thinkmg is that regional approaches are suitable for
LBSMP confrol. As all seas are connected, LBSMP also have some unpacts on oceanic water. 19 From this point of view, although some global standards are necessary, r egulations should be concluded primarily at regional levels on this issue. Alheritiere's statement can be quoted in this context:
... pollution from land-based sources calls for regional action; while other forms, such as pollution from dumping by ships, could be conveniently tackled at the global level.2'^
6.3 REGIONAL AGREEMENTS SURVEYED AND ANALYSED
Various regional LBSMP confrol agreements have been concluded in different parts of the world's oceans. This section first looks at agreements concluded by the Eastem and
Westem European countries, under the subheading of Non-UNEP regional agreements, and secondly, at other regional agreements on LBSMP that are concluded under the
UNEP Regional Seas Program (RSP).
18 GESAMP, The Healtii of tiie Oceans, UNEP Regional Seas Report and Stiidies, No 16, (UNEP,
1982) at 3.
19 According to the conclusion of the GESAMP 1990, LBSMP have some hnpact on oceanic water.
20 Alheritiere D, 'Marine Pollution Conttol Regulation: Regional Approaches', Marine Policy (1982)
Vol 6 at 162.
-191- 6.3.1 Non-UNEP regional agreements on LBSMP control
6.3.1 (a)(i) North East Atlantic Sea: The OSPAR Convention 1992
The first regional agreement on control of LBSMP was the Paris Convention for the
Prevention of the Marine Environment from Land-based Sources, which concluded on 4
June 1974, by fourteen West-European countties.21 Parties to tiiis Convention were
Austria, Belgium, Denmark, France, Germany (FRG), Iceland, Luxembourg, tiie
Netheriands, Norway, Portugal, Spain, Sweden, Switzeriand and the United Kingdom.
Finland and Italy were observers. Particulariy, it covered the North Sea and parts of tiie
North-East Atlantic and Arctic Oceans.
Article 1(2) provides a general obligation that:
The conttactmg parties shaU take, mdividuaUy and jouitly, all possible steps to prevent and eliminate poUution from land-based sources in accordance with the provisions of the convention and shall harmonise thefr policies in this regard.
The Convention defines LBSMP as:
... pollution from land-based sources means the pollution of the maritime area (i) through watercourses, (ii) from the coast, including intioduction through underwater or other pipelines, (iii) from man-made stractures placed under the
21 This Convention entered into force on 6 May 1979. In addition to the Paris Convention in the same
year with a particular emphasis on the regulation of land-based pollutants discharges, Sweden and
Denmark concluded a bUateral agreement (UN Legislative Series, ST/LEG/SER.B/18, at 425). fri
1976 further agreements were concluded on LBSMP between France and Tunisia as well as
between France, Monaco and Italy. (UNEP, Protection of the Mediten-anean Sea against Pollution
from Land-based Sources: A Survey of National Legislation. Introduction and Review.
UNEP/IG. 6/5(1976) at 19-20).
-192- jurisdiction of a confracting-party witiiin the hmits of the area to which the present convention apphes.22
The Convention imposes specific obligations on State Parties to eliminate LBSMP by
'black list' substances listed in Part I of Annex A and to sttictly hmit 'grey hst' substances listed in Part II of Annex A,23 making provision for a permanent monitoring system and for the earliest possible assessment of reduction of LBSMP,2'* and estabhshing a commission (PARCOM) to' supervise implementation of the
Convention.25 This Convention also makes provision for settlement of disagreements.26
22 Article 3(c) of the Paris Convention. This defmition was amended by its 1986 amendment. The
amending Protocol includes emissions via the atmosphere from land and man-made stractures as
defined in subparagraph (in) of this Article.
23 To facilitate frnplementation measures, on the basis of persistency, toxicity or otiier noxious
properties and tendency to bio-accumulate, pollutants have been divided into three parts. Annex A,
part-I substances mclude, organohalogen compounds and substances which may form such
compounds ui the marine environment, mercury and mercury compounds, cadmium and cadmium
compounds, persistent syntiietic materials which may float, remam m suspension or smk, and which
may seriously interfere witii any legitimate uses of tiie sea and persistent oUs and hydrocarbons of
petioleum origui (Armex A, part-1, 1-5).
Annex A, part II substances mclude compounds of phosphorous, stiicon, tin and substances which may
form such compounds m tiie marine envfronment, elemental phosphorous, non persistent oils and
hydrocarbons of tiie pefroleum (Annex A, part II, 1-3 of tiie Paris Convention 1974).
24 Article 11.
25 Articles 15 and 16.
26 Article 21 of tiie Convention states: 'Any dispute between conttacting parties relating to tiie
mterpretation or application of tiie present Convention, which cannot be settled otiierwise by tiie
parties concemed, for instance by means of mqufry or conciliation witiim tiie Commission, shall, at
tiie request of any of tiiose parties, be submitted to arbittation...' It is to be noted tiiat m terms of
-193- The Paris Convention was replaced by the Convention for the Protection of the Marine
Environment of the North East Atlantic 1992 which came into force on 24 March 1998
(hereinafter OSPAR Convention 1992).27 The OSPAR Convention 1992 reflects in part recommendations of the Stockholm Conference 1972, the Agenda 21 of United Nations
Conference on Environment and Development (UNCED) 1992, and the relevant provisions of Customary Intemational Law (CIL) as reflected in part XII of the United
Nations Convention on the Law of the Sea (LOSC). The reasons for tiie replacement of the Paris Convention were that its predecessors, the Oslo Convention on dumping and the Paris Convention 1974, were not adequately confrolling some of the many sources of pollution. It was therefore considered justifiable to replace them with the [new Paris]
Convention, which addresses all sources of pollution of the marine environment and the adverse effects of human activities upon it, takes into account the precautionary principle and sfrengthens regional cooperation.^^
This Convention marks a significant improvement in efforts towards LBSMP control by including more recent concepts in LBSMP confrol, such as the 'precautionary principle' and 'polluter pays principle'. In relation to those principles. Article 2 of this Convention states:
The conttacting parties shaU apply tiie precautionary principle, by vfrtiie of which preventive measures are to be taken when there are reasonable grounds for concem that substances, or energy mttoduced, dfrectiy or indfrectiy, frito the marine envfronment may bring about hazards to human health, harm living resources and marine ecosystems, damage amertities or interfere witii otiier legitfrnate uses of the
settlement of disagreements, tiie same mechanisms have been provided m Article 32 of tiie OSPAR
Convention 1992.
27 32 ILM (1993) 1072.
28 Preamble of the OSPAR Convention.
-194- sea, even when there is no conclusive evidence of a casual relationship between the mputs and tiie effects and shall apply the polluters pay principle, by virtue of which the costs of pollution prevention, conttol and reduction measures are to borne by the polluter.2^
To implement these provisions, the Convention emphasises adoption of programs and measures making fiiU use of the latest technological developments and practices.^o
These mclude Best Available Technologies (BAT), Best Environmental Practices
(BEP), and Clean Technology^i and the estabhshment of complementary or joint programs of scientific research.32 Thus it employs the principle of cleaner production.
This Convention contains a specific provision on the assessment of the quality of the marine environment taken for its protection.
29 Article 2(2)(a) and Article 2(2)(b) respectively.
30 Article (2)(3)(a). It is to be noted, tiiat in terms of technological developments, and practices, states
must take into account the criteria for the definition of practices and techniques set forth in
Appendix 1 of the Convention.
31 Article (2)(3)(b)(i). The term Best Available Techniques (BAT) means tiie latest stage of
development of processes, facilities or metiiods of operation, which mdicate tiie practical suitabihty
of a particular measure for Ihnitmg discharges, emissions and waste. In relation to BAT, some
special issues need to be considered. They mclude technological advantages, economic feasibility
and the nature and volume of the discharges and emissions (See Article 2, Appendix 1 of the
Convention).
Best Envfronmental Practice (BEP) means tiie application of tiie most appropriate combmation of
envfronmental confrol measures and sttategies. Witii regards to BEP a range of measures need to be
considered, such as provision of information and education to flie pubhc, saving resources,
establishing a system of licensing and application of econonuc mstiomients to activities (See Article
6, Appendix 1 of the Convention).
32 Article (2)(3)(b)(ii).
- 195- In this respect Article 6 states:
The confracting parties shall, in accordance with the provisions of the convention, in particular as provided for in Armex IV:
(a) undertake and publish at regular intervals joint assessments of the quality status of the marme envfronment and of its development, for the maritime area or for regions or Sub-regions thereof;
(b) include in such assessments both an evaluation of the effectiveness of the measures taken and planned for the protection of the marine envfronment and the
identification of priorities for action.
Thus the Convention sets in place a mechanism to render the Parties' implementation fransparent and publicly accountable.
Other important aspects of the OSPAR Convention 1992 are the inclusion of provisions relating to reporting and compliance to ensure the effectiveness of the measures taken by the Parties;^^ access to information for the general pubhc;^'^ the possibility of permitting non-governmental organisations to participate in subsidiary bodies;^^ and the competence of the Commission (heremafter OSPARCOM) to adopt legaUy bmding
33 Articles 22 and 23. PARCOM is allowed to take measures to assist Parties m carrying out tiiefr
obhgations on tiie basis of tiie report on any problems, which are a barrier m unplementation.
34 Article 9.
35 Article ll(l)(b). OSPAR is tiie fu-st Convention to not distinguish between non-party states,
mtemational governmental and non-governmental organizations m granting tiie right to observer
statiis (Sands P, Principles of Intemational Environmental Law (Manchester University Press,
1995) at 95-96.
- 196- decisions.36 These provisions are created to involve the public in marine envfronmental
decision-making and to enhance and facilitate effective confrol measures.
The OSPAR Convention lays down some other new approaches to LBSMP confrol. ft
does not provide specific obligations with respect to specific categories of dangerous
substances,37 rather it subsumes those obligations under the general obhgation of
Confracting Parties to prevent and eluninate LBSMP,38 to requfre the use of BAT and
BEP.39
This Convention does not provide a list of black and grey list substances. With a view to
addressing all potential land-based pollutants to the fullest possible extent, all potential
36 The OSPARCOM is the representative body of the Contiacting Parties [Article 10(1)]. In terms of
decisions made by the commission under the Paris Convention there was some disagreement among
Parties as to whether the Commission decisions were legally binding or only recommendatory
(AUen H, Ijlsfra T, and NolUcaemper N, 'The 1992 Paris Convention for tiie Protection of the
Marine Envfronment of the North East Atlantic: A Critical Analysis', Intemational Joumal of
Marine and Coastal Law, 1992, Vol 8 at 39). However, Article 13(2) resolved this issue proving
that a decision is to be legaUy binding after the expiry of 200 days for those Parties who have voted
for it or who have not notified the Executive Secretary in writing that they are unable to accept it.
(Article 13(2). According to article 13(1) Commissions decisions do not necessarily have to be
unanimous. Should, unanunity not be attamable, the Commission may adopt decisions or
recommendations by a three-quarters majority vote of the Conttactmg Parties.
37 Under Paris Convention 1974 Conttacting Parties had a variety of obhgations, such as elimination
of pollution by black list substances (Article 4(1 )(a)) and periodical review of autiiorisations for tiie
discharge of grey list substances (Article 4(2)(b)).
38 Article 3.
39 OSPAR Convention 1992, Annex 1 Art 1(1).
-197- LBS are subjected to the same processes of confrol and eventual elunination. This
approach creates broader scope for the development of plans for substances which are
not listed in the black and grey list, but have harmfiil effects to the marine envfronment.
Although the provisions of the OSPAR Convention 1992 brought new approaches to
LBSMP control, they are not beyond criticism. For example, 'the broad scope to
develop plans' for confrol of all land-based pollutants is very difficuh to implement
when Confracting Parties have room for dilatory manoeuvres on any debatable issues,
such as through risk assessments and priority setting processes. Questions as to its
effectiveness were raised by Pallemaerts who noted:
...1974 Convention has now been replaced by less explicit freaty provisions and several layers of interpretative political discourse (Ministerial Declaration, Action Plan, Objective, Sfrategy...) and procedures which tend to qualify the mandate and delay, rather than speed up, implementing action.'^^
The OSPARCOM Recommendations, Decisions and Action Plans
The OSPARCOM is the representative body of the OSPAR Convention's Conttacting
Parties. It works on the basis of the Convention and adopts sfrategies and mechanisms
for the implementation of the Convention and protection of the North-East Atlantic Sea
from pollution. As far as implementation mechanisms are concemed. Action Plans, and
a substantial number of decisions and recommendations have been adopted by
OSPARCOM. The OSPARCOM Working Group on Industtial Sectors (INDSEC) was established on an ad hoc basis in 1988 and on a permanent basis in 1989, as the main
40 Pallemaerts M, 'The North Sea and Baltic Sea Land-based Sources Regimes: Reducing Toxics or
Rehashing Rhetoric?', Intemational Journal Of Marine and Coastal Law, 1998, Vol 13, No at 452.
-198- fomm intended for the elaboration of programs and measures to address pollution from industrial point sources in an integrated manner. Since the estabhshment of the
INDSEC, OSPARCOM has adopted many recommendations. Examples are
OSPARCOM Recommendations on the best available techniques (94/2) and best envfronmental practice (94/3) ^i to enhance LBSMP confrol measures. A bmdmg decision on the reduction and elimination of radioactive discharges, emissions and losses, especially from nuclear reprocessing, was adopted'*2 Under the sttategy to combat euthrophication, the OSPARCOM has adopted guidelines for evaluating nutrient inputs to the North-East Atlantic sea, and put in hand work on comprehensive assessments of the areas where there are, or may be, euthrophication problems.'*^ n also adopted and launched the Quality Status Report (QSR 2000) on the whole of the North-
East Atlantic.44
In 1992 OSPARCOM adopted an Action Plan outlining specific actions for a substantial reduction of toxic, persistent and bio-accumulative substances and mandated the
OSPARCOM to determine the specific priorities for conttol of substances and take action to conttol the inputs of such substances.'^s The 1996-97 action plan was for the development of:
41 OSPAR Doc 16/13/1-E, June 1994, Annexes 6 and 7.
42 OSPAR Commission, Press Notice - Further Protection for tiie Nort East Atiantic, 30 June 2000.
wysiwyg://content.20/http://www.os... l/final_OSPAR_2000pressrelease.htiii
43 Ibid.
44 Ibid.
45 Action Plan of the Oslo and Paris Commissions, 1992 m Paris Ministerial Meeting Proceedmgs, at
123.
-199- ... a sfrategy ... for the fiirther reduction of discharges, emissions and losses of hazardous substances in order to implement the Commissions' objective in this respecf*^ and consequently protect the regional marine environment from LBSMP.
Although OSPARCOM decisions are binding^^ its recommendations are not."*^
OSPARCOM recommendations became binding on those Confracting Parties who voted for them since March 1998 when the OSPAR Convention entered into force and made a significant contribution towards the prevention and elunination of LBSMP in the North Sea Region. The Action Plans adopted by the Commission do not have a binding force, but they do create political commitment for the implementation of the
OSPAR Convention, and eventually, the eradication of LBSMP in the region.
OSPAR Ministerial Declarations
The OSPAR Ministerial Declarations are the outcome of the ministerial meetings of the
OSPAR 1992 Parties. The OSPAR Ministerial Declarations 1992 and 1998 are particularly important as they laid down a number of priorities and objectives. In their
1992 Esbjerg Declaration, tiie Ministers agreed that:
As a matter of principle, for the whole convention area, discharges and emissions of substances which are toxic, persistent and hable to bioaccumulation, m particular organohalogen substances, and which could reach tiie marine envfronment should, regardless of tiiefr antiiropogenic source, be reduced, by tiie
46 Summary Record of tiie 18* Jomt Meeting of tiie Oslo and Paris Commissions, OSPAR Doc,
96/17/1-E, June 1996, para A.l.
47 See footnote 36 of tiiis chapter.
48 See Article 13(5) of tiie OSPAR 1992 Convention.
-200- year 2000, to levels that are not harmful to man or nature with the aim of thefr elimination.'*^
Progress regarding goals set out in the 1992 Paris Declaration was not satisfactory. To improve the situation another ministerial meeting was held in Sintra on 22-23 July
1998. This declaration adopted further measures for the phasing out of marine pollution by hazardous substances within one generation (by the year 2020). By infroducmg a system for prioritisation and risk assessment, it adopted new sttategies on specific
LBSMP problems including hazardous substances and eutrophication.^^ Facing the fact that pollution from LBS remained an extremely serious problem in the North Sea Area, and that much more work needed to be done, at the Sintra Meeting Ministers took a more firm stand than that of the 1992 Paris Declaration. They expanded the scope of the OSPAR regime of LBSMP confrol,^! recognising that harm from unintentional releases is significant and must be conttolled.52
49 Fmal Declaration of tiie Mfriisterial Meeting of tiie OSLO and Paris Commission, Paris 22
September 1992, part III, 4tii mdent.
50 In this context, tiie Smfra Statement proposed, fustiy, to identify tiie sources and thefr patiiways;
secondly, witii a combination of monitoring, modeUmg, risk characterisation and assessment
techniques, to establish the extent of tiie problem posed by tiiese sources; and titirdly, to identify
relevant measiues to reduce discharges, emissions and losses of tiie substances concemed. (Fayete
L, 'The OSPAR Convention Comes into Force: Continuity and Progress', The International Joumal
of Marine and Coastal Law, 1999, Vol 14, No 2, at 287).
51 Sinfra Declaration, para 17.
52 As defined m Annex 5 to the Sttategy, 'losses' are tiie unintentional ttansfer of substances dfrectiy
or indfrectiy to tiie marme envfronment by leachmg from a product, waste or sttiictiire; by leaching
or ran-off from land; and tiffough a leak from a contamer. Fayette L de La, 'The OSPAR
Convention Comes into Force: Continuit}' and Progress', supra note 50 at 285.
201 The Sintra declaration also adopted an action plan^^ for 1998-2003 to implement sfrategies. To make this plan effective, the agreement allowed the Commission to assess reports from Contracting Parties on the implementation of programs and measures and to assess the effectiveness of these programs and measures. To carry out this program the agreement also included the aim to establish a comphance mechanism, along with a revised standard of implementation reporting and a performance assessment procedure.^^ This is significant with regard to improving the LBSMP control measures in the region. These declarations are the commitments at pohtical levels of the Contracting Parties to control LBSMP, although they are not bmdmg upon them.
Complementary to OSPAR Convention 1992, different bodies in the North Sea and the
North East Atlantic regions have undertaken LBSMP confrol measures. These initiatives have significantly contiibuted to LBSMP confrol in the North Sea region, hi
this respect, the Intemational North Sea Conferences (INSCs) and EEC Directives are
notable.
6.3.1(a) (ii) North East Atlantic Sea : International North Sea Conferences (INSCs)
A series of fritemational Conferences on the Protection of the North Sea (INSCs) have
been held through the participation of Ministers responsible for the protection of the
53 The Action Plan sets out a basis for action, activities and means of unplantation, mcluding specific
tasks for tiie relevant workfrig groups, and tiiis Action Plan also mcludes undertakfrigs witii respect
to effecting regular reviews and assessments of tiie quality statiis of tiie marine envfronment and of
parties' implementation of measures adopted under tiie convention. (Fayette L de La, ibid, at 295).
54 'Summary Record', Meeting of tiie OSPAR Commission, Sintta, 20-24 July 1998 (Ref No 1998-
1999), A Officials Segment, para A4.7 and Annex 7.
-202- North Sea and the EEC Commissioner responsible for environmental protection.^s
These conference activities are hnked with the OSPAR system. The declarations of these Conferences are complementary to OSPARCOM recommendations and are significant in achieving the purpose of the OSPAR Convention.
The first INSC was held in Bremen in 1984, the second in London in 1987; tiie thfrd
INSC in The Hague in 1990; an Intermediate Ministerial Meetmg (IMM) was held in
Denmark in 1993;56 the fourth fNSC was m Esbjerg in 1995; another Intermediate
Ministerial Meetmg (IMM) was held in Norway in 1997; and the fifth INSC was held in
Bergen in 2002. The next Conference is expected to be held in Sweden by 2006.
The 1984 Bremen Declaration, inter alia, laid groundwork for the adoption of bindmg regulations for black and grey list substances by the EEC, Paris Commission, and Rhine and Elbe Joint River Commissions ^'^ and for the intensification of the phasing out of the use and discharge of PCBs.^^ The 1987 London Declaration adopted comprehensive
55 All INSCs publish thefr declarations. For full text of three declarations see Freestone D and Ijlsfra T
(eds), The North Sea: Basic Legal Documents on Regional Environmental Cooperation, 1991 at 61.
According to section 8, paras 66-70 (Future Cooperation for the Protection of the North Sea), the
next INSC is expected to be held in Norway iim 2002.
56 This was not a complete INSC but a part of the process of INSC witii a limited agenda.
57 Section 1 of Bremen Declaration, which is related to LBSMP. For the text see Freestone D and
Ijlstia T (eds), supra note 55 at 61.
58 Freestone D and Ijlstia T (eds), ibid at 62. See also PARCOM Decision 90/4 of 14 June 1990 on
phasing out of PCBs (Freestone D and Ijlstia T eds), supra note 55 at 155).
-203- protective measures to improve the marine environment and tiiereby accepted tiie
'principle of precautionary action'.59 The 1990 Hague declaration called for:
... measures to phase out and destioy in an envfronmentally safe manner aU identifiable PCBs as soon as possible witii tiie aim of complete destiiiction ... by 1995 and by tiie end of 1999 at tiie latest.^O hi Ime with the 1987 Brundtland Report,6i the Hague Declaration put emphasis on sustamable development and an integrated ecosystem approach and adopted more specific measures to reduce inputs into the North Sea via rivers, esttiaries and the atmosphere.62
An IMM was held in Denmark in December 1993, preparatory to the Esbjerg
Conference in 1995. The objective was to promote the reduction of nutrients and pesticides input into the North Sea. This meeting concluded with a commendation of the of Quality Status Report 1993 prepared by the North Sea Task Force, in which the
OSPARCOM participated.63 Apart from The Hague Declaration hst of pesticides, this meeting invited the OSPARCOM to identify other pesticides, 'which are not covered by the Hague Declaration but which pose a threat to the marine environment'.^ The next
59 For details text see sections Preamble, 7, 11, 15(2), 16 and 16(1) of London Declaration 1987.
See also Freestone D and Ijlsfra T(eds), supra note 55 at 41-47.
60 Hague Declaration, para 9(l)(i).
61 See Chapter 4.2 supra.
62 See Freestone D and Ijlstia T(eds), supra note 55 see 5-10.
63 Statement of Conclusions from tiie Intermediate Ministerial Meeting, Copenhagen, 8 December
1993 (hereinafter Copenhagen Statement), para 45.
64 Copenhagen statement, para 47(i).
-204- INSC was held in Esbjerg on 8-9 June 1995^5 with a new long-term objective to stop rather than reduce marine pollution:
... by continuously reducing discharges, entissions and losses of hazardous substances tiiereby moving towards the target of thefr cessation within one generation (25 years) with the ultimate aim of concentiations in the envfronment near background values for naturally occurring substances and close to zero concenfrations for man made synthetic substances.^^
To fulfil this long-term goal, the Esbjerg Declaration agreed to promote BAT, BEP, and
Clean Technology in a more sophisticated and stringent way.^'' The Declaration's
significant advance lies in the call for a cessation of discharges rather than their
reduction and in its references to the need for priority setting ui toxic reduction
measures.^^
65 Mmisterial Declaration of the Fourtii Intemational Conference on the Protection of the North Sea,
Esbjerg, (heremafter Esbjerg Declaration) 1995, para 20. This Conference characterised previous
Conferences as having deah with all substances which are toxic, persistent and liable to
bioaccumulation, but the concrete decisions on measures have only dealt with limited number of
such substances (Esbjerg Declaration, para 19).
66 Esbjerg Declaration, para 17. For tiie first time the Esbjerg Declaration caUed for the cessation of
emissions, no matter what tiie form, frito tiie marine envfronment, whereas tiie London and Hague
Declarations talked about reductions of mputs of hazardous substances.
67 Esbjerg Declaration, paras 23-29 and Annex I, specify a number of issues tiiat are requfred to be
taken into account by tiie member states for tiie action.
68 Esbjerg Declaration, paras 18, 23(ii)(b) and 25(iu). For example ui terms of emission reduction,
assessment of risk is a tool in setting priorities and developuig action program (para 18).
205 At the IMM held in Oslo, Norway in 1997, the concept 'Ecosystem Approach' was discussed as part of the integration of fisheries and envfronmental policies.69 At its meetuig a workshop was held where present conservation and management measures for the protection of the North Sea Ecosystem received specific attention. The promotion of integrated monitoring and assessments and sustauiable utihsation of marine resources were advocated in this workshop for further development of tiiis approach in the management and protection of the North Sea.^o
The 5* North Sea Conference took place in Bergen, Norway on 20-21 March 2002. This
Conference covered a wide range of issues such as ecosystem approach to management, sustainable fisheries, hazardous substances and eutrophication. In terms of ecosystem approach this Conference emphasises the coherent, integrated and sustainable management and includes the use of ecological quahty objectives as a tool for setting clear operational environmental objectives and as indicators for ecosystem health.'^^ It was sfressed that increased efforts are necessary in order to meet the target of the cessation of emissions, discharges and losses of hazardous substances to the North Sea by 2020 (one generation target set out in Esbjerg Declaration 1995) and also to achieve
69 International Conference on tiie Protection of tiie North Sea, Workshop on tiie Ecosystem Approach
to the Management and Protection of the North Sea.
(http://odin.dep.no/md/htiiil/conf/workshop/1998).
70 Ibid.
71 Fifth Intemational Conference on tiie Protection of the North Sea, March 2002,
(http://ww^w.dep.no/md/nsc).
-206- the target of the OSPAR strategy to combat eufrophication by 2010, and urged for sfrengthened cooperation of the North Sea Sates.72
It is to be noted that these INSC declarations are not binding upon states in international law. However, they create a commitment at pohtical levels to protect the regional marine environment from pollution.
6.3.1 (a)(iii) North East Atlantic Sea : EEC Directives
North Sea Watershade covers Belgium, France, Norway, Denmark, Germany,
Luxembourg, Netherlands, Swedeen, Switzerland and United Kingdom. These states take part in INSCs. From the countries surrounding the North Sea catchment area, eight
States (Belgium, France, Denmark, Germany, Luxembourg, Netherlands, Sweden and
United Kingdom) are members of the European Economic Community (EEC).'^^ Only
Norway is not a member of the EEC. And, with the exceptions of Austria, Itlay and
Greece, all member states of EEC fall imder the North-East Atlantic Sea.
A number of EEC directives have been adopted, which contain environment protection measures relevant to LBSMP. These directives apply to all industrial installations and substances that may be harmfiil for the environment.'^^ Although 'directives' are not
72 Ibid.
73 EEC member states are: Austria, Belgium, Denmark, Fmland, Germany, Greece, France, freland,
Italy, Luxemburg, Portugal, Spain, Sweden, the Netherlands and United Kuigdom.
74 In addition, there are some Dfrectives, which are not dfrectiy related to LBSMP but to pollution of
fresh water. However, tiiey are useful towards tiie LBMP conttol. For example, the Dfrective of 22
November 1973 [(73/404/EEC, OJEC, No L 347, December 17, 1973), amended by Dfrectives
82/242/EEC of March 31, 1982, OJEC, No L 109, April 22. 1982 and 86/94/EEC of March 25,
- 207 - freaties, they legally bind the members of the European Economic Community.'s
Dfrectives with dfrect effects requfre the EEC member states to perform certam acts^s
and prescribe some values, which are precise, unconditional and not dependent on any
fiuther action by the member states. When a dfrective has a high degree of precision
tiiere is no room for discretion for Member States. This means that the dfrective has
dfrect domestic effect and achieves the same result, or the equivalent effect as a
'regulation'.77
1986)] limits the use of non-biodegradable detergents and sets a requfrement of 90%
biodegradabUity. The dfrective of 30 October 1979 prescribes some standards for the designated
waters that apply to coastal and sah waters protection. (See 79/923/EEC, OJEC, No L 281,
November 10, 1979). (See also Kramer L, The Implementation of Community Envfronmental
Dfrectives within Member States: Some Implication of Dfrect Effect Doctrine, Joumal of
Environmental Law, 1991, Vol 3 at 42-43).
75 Joutsamo K, The Role of Preliminary Rulings in the European Communities, Helsinki, 1979, at 30-
32.
76 For example Article 15 of Directive 76/464/EEC obliged member states to draw up and carry out
rehabilitation programs.
77 Article 189, 3rd para of EEC Treaty states: 'Urtiike community regulations, which are dfrectiy
applicable, a Dfrective is binding on the member state to which it is addressed with respect to the
objective to be achieved but leaves the national authorities free to choose how and in what form to
implement fr'. Examinmg tiie basic principles of dfrect effect doctifrie and the provisions of EEC
envfronmental Directives, Kramer L argued that tiie above dfrectives have dfrect effect. (For details
see Kramer L, 'The Implementation of Community Envfronmental Dfrectives within Member
States: Some Imphcation of Dfrect Effect Docttfrie', supra note 74 at 39.) See also Long A,
'Integrated Pollution Prevention and Conttol: The frnplementation of Dfrective 96/61/EEC',
European Environmental Law Review, 1999, Vol 8, No 6 at 180.
-208- The 'Directive on Pollution Caused by Certain Dangerous Substances Discharged into the Aquatic Environment of the Community' adopted by the EC Council in 1976"^^ is explicitly applicable to the territorial sea of the Member States. The text of this dfrective contains a system of discharge prohibition and authorisation for a hst of harmful substances. The directive mainly focuses on land-based pollution as it excludes from its scope 'discharge of dredging', 'operational discharges from ships in territorial waters', and dumping from ships in territorial waters'.^^
fri hue with the above dfrective (directive 76/464) other directives were adopted on cadmium (Cd) discharges,^o mercury (Hg) discharges^ ^ and on batteries and accumulators containing certain dangerous sub stances. ^2 These dfrectives laid down
78 Dfrective 76/464/EEC, OJ No L, 129, May 18 1976, p 23. fri 1997 titis dfrective was amended by
tiie 97/16/EC Dfrective of 10 April 1997 on resttictions on tiie marketing and use of certaia
dangerous substances and preparations. OJ No L 116, 6.5.1997, at 31. For a summary of Dfrective
75/442/EEC and subsequent dfrectives see ACOPS Yearbook, 1990, at 136-139. For details see
HaighN, EEC Environmental Policy and Britain, (2"'' ed 1987), Chapters 5 & 6.
79 Article 1(1) and l(2)(d).
80 Dfrective 83/513/EEC.
SI Dfrective 84/156/EEC. For text see Document 385D 0613. 85/613/EEC: Council Decision of 20
December 1985 Concemmg tiie Adoption on Behalf of tiie Community, of Programs and Measures
Relatmg to Mercury and Cadmium Discharges Under tiie Convention for tiie Prevention of Marine
Pollution from Land-based Sources.
82 Dfrective 91/157/EEC, OJ No L78, 26.3.91, at 38.
-209- limit values and quality objectives for cadmium, mercury and lead discharges into the marine environment. ^3
Summary
The OSPAR Convention prescribes intemational management principles for LBSMP control. As an important step in the implementation of the Convention, OSPARCOM adopted legally binding decisions. Various recommendations, action plans and ministerial declarations have been adopted as to the mechanisms of the Convention's implementation. INSCs and EEC dfrectives also have been complemented with this implementation process. All these indicate the signs of commitment at political levels for the protection of the North Sea and North-East Atlantic Sea from LBSMP.
The ambitious goals adopted in the OSPAR, INSC and EEC systems were aimed at substantial behavioural change at the domestic and regional level^'* to confrol LBSMP in the North and North East Atlantic Sea region. With the adoption of these mechanisms and policies by the states, commitments have been developed and greater compliance
83 For example, since 1 January 1989 a limit value of 0.2 mgs of cadmium per litte of waste
discharged has been in force for plants manufacturing cadmium compoxmds. A maximum of
0.5gms of cadmium may be discharged per kg of cadmium handled. These linuts have been
apphcable since the begionmg of 1989 m the community, even where a member state has not taken
correspondmg implementing measures. (See Kramer L, supra note 74 at 42-43).
84 Skjaerseth JB, 'The Making and Implementation of North Sea Commitments: The Politics of
Envfronmental Participation', in Victor DG (et al). The Implementation and Effectiveness of
International Environmental Commitinents: Theory and Practice, (Intemational Instittite for
Apphed Systems Analysis, 1998) at 368.
-210- has been achieved in the North Sea region.^s Dumping has stopped and the discharge of major pollutants has been cut roughly in half in only a decade.
This followmg table indicates that control efforts are progressmg to achieve the evenmal elimination of LBSMP in some North Sea countries.
TABLE 6.1: LEVEL OF AMBITIONS, LEVEL OF PERFORMANCE, AND INFLUENCE OF INTERNATIONAL COMMUNITIES ON NATIONAL GOALS IN RELEVANT TERMS Please see print copy for image
Notes: A = Ambitions; P = Performance; I = Relative Influence
Source: Skjaerseth JB, 'The Making and Implementation of North Sea Commitments: The Pohtics of Envfronmental Participation', ui Victor DG (ed). The Implementation and Effectiveness of Environmental Commitments: Theory and Practice, (Intemational Institute for Applied Systems Analysis, 1998) at 364.
However, 'progress of implementation' in all aspects has been slow because of economic infeasibility and social and political implications. Implementation of all of these plans and declarations requires fiirther development of cooperative programs and measures including a supreme effort and significant capital expenditure for the preparation and review of marine environmental practices.
^^ According to the Progress Report of the 4* Intemational Conference on tiie Protection of the Nortii
Sea, Esbjerg, Denmark, 8-9 June 1995, the overall emissions of regulated substances have decreased
substantially m most of tiie Nortii Sea region.
-211 6.3.1 (b) Baltic Sea: Helsinki Convention (1974)
The Convention on the Protection of the Marine Environment of the Baltic Sea Area
(hereinafter Helsinki Convention), concluded on 22 March 1974^6 was the first regional intemational agreement to institute comprehensive measures to confrol all sources of regional marine pollution.
In this Convention, the Confracting Parties agreed to 'take all appropriate legislative,
adminisfrative or other relevant measures in order to prevent and abate pollution and to protect and enhance the marine environment of the Baltic Sea Area'.^'' In relation to
LBSMP:
The contiacting parties shall take all appropriate measures to conttol and minimise land-based pollution of the marine envfronment of the Baltic Sea Area^^ ; and
(t)o this end they shall, inter alia, as appropriate co-operate in the development and adoption of specific programs, guidelines, standards or regulations conceming
^^ Rapid fouling of the Baltic waters led to initial contacts between riparian states in 1969 and 1970
after which the Finish Govemment expressed, in 1971, its willingness to act as tiie host for a
Conference on the protection of the Baltic envfronment. As later elaborated, the idea was welcomed
by the other riparians and preparations for the estabhshment of a regional convention were
commenced in May 1973. Preparatory work was carried out in a notably efficient manner
culminating in the adoption of the Convention at the Diplomatic Conference on the Protection of the
Marine Envfronment of tiie Baltic Sea Area held m Helshiki in March 1974 which was concluded
between Denmark, tiie Federal Republic of Germany, Fmland, tiie German Democratic Repubhc,
Poland, tiie Soviet Union and Sweden. This Convention entered mto force on 3 May 1980. (for tiie
text see 13 ILM 1974, at 546; UN Legislative Series, ST/LEG/SER.B/18, at 518)].
^7 Article 3( 1) of Helsinki Convention.
88 Article 6(1).
-212- discharges, envfronmental quality, and products containing such substances and materials and thefr use.^^
This Convention also imposes specific obligations on the Confracting Parties to counter- act the infroduction of hazardous substances.^o It emphasises technological cooperation between Confracting States^' and establishes a commission (HELCOM) to administer ^id coordinate the cooperative tasks of State Parties. As a permanent body,
HELCOM is composed of all Confracting Parties of the Convention. HELCOM's duties are, inter alia, to monitor the implementation of the Convention,92 make recommendations on related matters, and to define criteria and objectives for the control
89 Article 6(2).
90 Article 5.
91 Article 16.
92 Article 12.
213 and reduction of LBSMP.93 This Convention also provides provisions regarduig
responsibility for damage^^ and settlement of disputes.^s
Although these provisions are significant, a significant omission m terms of LBSMP
control was that the Convention did not include intemal waters of the Contracting
93 hi general, tiie duties of tiie HELCOM are (a) keep tiie unplementation of tiie Convention under
regular observation, (b) make recommendations on measures relatmg to the purposes of the
convention, (c) keep under review the content of the convention mcludmg its Annexes and to
recommend such amendments as may be requfred, (d) defme pollution criteria, objectives for
pollution reduction and objectives conceming measures for preventing land-based pollution, (e)
promote additional measures to protect the Bahic, and for this purpose, serve as a centie for the
exchange of scientific, technological and statistical information and to promote scientific and
technological research, (f) seek, when appropriate, the services of complete regional and other
intemational organizations, and (g) assume such other fimctions as may be appropriate under the
terms of the convention. (Article 13).
94 Article 17 states: 'The confracting parties undertake jointly to develop and accept rules conceming
responsibility for damage resulting from acts or omissions in conttavention of the convention,
including, inter alia, limits of responsibility, criteria and procedures for the determination of liability
and available remedies'. Article 25 of the Baltic convention 1992 is same as this Article.
95 Article 18 states: 1. 'In case of a dispute between Contiacting Parties as to the interpretation or
application of the present convention, they should seek a solution by negotiation. If the Parties
concemed cannot reach agreement they should seek the good offices of or jointly request the
mediation by a thfrd party, a qualified intemational organization or a qualified person. 2. If the
Parties concemed have not been able to resolve thefr dispute through negotiation or have been
imable to agree on measures as described above, such disputes shaU be, upon common agreement,
submitted to an ad hoc arbittation tiibunai, to a permanent arbitiation, or to the Intemational Court
of Justice.' It is to be noted tiiat Article 26 of tiie Baltic Convention 1992 provides tiie same
niechartism in this respect.
-214- Parties.96 it is to be noted that Article 4(3) of the Convention obhged the Contractuig
Parties not to pollute their intemal waters. It states:
While the provisions of the present Convention do not apply to intemal waters, which are under tiie sovereignty of each conttactmg party, tiie contiactmg parties undertake, without prejudice to thefr sovereign rights, to ensure that the purposes of the present convention will be obtained in these waters.^^
This deficiency of the Convention does not create a legal obhgation of States to confrol
LBSMP in their intemal waters. As BA Boczek indicates:
... estuarme waters, through which much, if not most, of land-based pollution enters the sea, are not covered by the convention and their protection will depend entfrely upon the readiness to the act of the Baltic governments.^^
Although the Helsinki Convention 1974 made provisions with regard to all forms of marine pollution, it failed to significantly stop the deterioration of the Baltic Sea
environment, especially problems caused by euthrophication which is one of the major
sources of LBSMP, and pollution from shipping. Therefore, following a meeting of the heads of states in Sweden in November 1990, the Helsinki Convention was extensively revised and replaced by the Convention on the Protection of the Marine Environment of
the Baltic Sea Area, (Baltic Sea Convention) which was adopted on 9 April 1992 and
came into force on 17 January 2000.^9 jhe intention of the revision was to extend.
96 Article 1, Helsmki Convention 1974.
97 Article 4(3).
98 Boczek BA, 'International protection of tiie Baltic sea Envfronment Agamst PoUution: A Stiidy fri
Marme Regionalism', American Journal of Intemational Law (1978), Vol 4 at 802.
99 United Nations General Assembly, Advance Unedited Text, Fifty-sixtii session. Oceans and tiie Law
of the Sea, 28 March 2001, para 392.
-215- sfrengthen and modernise the 1974 Convention.loo The Baltic Sea Convention infroduces more legally binding technical provisions, more specific mles and further action in the field of prevention and confrol of LBSMP. loi
In relation to confrol of LBSMP, this Convention exphcitly includes uitemal waters:
It mcludes the mtemal waters, i.e., for tiie purpose of tiiis convention, waters of tiie landward side of the base Imes from which the breadth of the territorial sea is measured, up to tiie landward limit accorduig to the designation of tiie Conttactmg Parties. ^02 ft also includes a broader definition of LBSMP that specifically encompasses intemal waters pollution. Article 2(2) states:
Pollution from land-based sources means pollution of tiie sea by pomt or diffuse inputs from all sources on land reaching the sea, waterbome, afrbome or dfrectiy from the coast. It includes pollution from any deliberate disposal under the seabed with access from land by tutmel, pipeline or other means. ^^^
This inclusion is important as it creates the scope necessary to take measures in the whole of the catchment area.^'^'^ Furthermore, this Convention includes some
^^^ See also Sands P, Principles of Intemational Environmental Law, (Manchester Uruversity Press,
1995), Vol 1 at 306-307.
^"^ Fitzmaurice M, Intemational Legal Problems of the Envfronmental Protection of the Baltic Sea,
(Martmus Nijhoff/Graham and Trotinan, 1992) at 94.
^02 Article 1 of tiie Baltic Convention 1992.
^^3 Article 2(2) of the 1974 Baltic Convention defines land-based pollution as 'pollution of the sea
caused by discharges from land reaching the sea waterbome, afrbome or dfrectiy from the coast,
including outfalls from a pipeline'.
^^4 Ehlers P, 'The Helsinki Convention 1992: Improving the Baltic Sea Environment', Intemational
Journal of Marine and Coastal Law, 1993, Vol 8 at 195.
-216- intemational management principles for LBSMP confrol. They are the precautionary principle; if^^ the polluter pays principle; ^^^ ^nd envfronmental impact assessment, ^o"^
To unplement these provisions, the Convention obliges States to undertake various measures and programs such as best environmental practice (BEP) and best available technology (BAT).^^^ It establishes criteria and measures conceming the prevention of pollution from LBS.^°^ It also requires permits in terms of discharging harmfiil substances.^'"
This Convention also makes provisions on notification and consultation,''^ reporting and exchange of information'12 and circulation of information to the pubhc "3 on marine pollution issues. All these provisions entail specific legal obligations for the protection of the Baltic Sea from LBSMP.
105 Article 3(2).
106 Article (3)(4).
107 Article?.
108 Article 6. It is to be noted that Annex II contams criteria on BEP and BEP ui its four regulations.
Regulation 2 defmes tiie BEP, and regulation 3 defmes tiie BAT.
109 Article 6. Annex III contams criteria and measures tiiat must be apphed by tiie Conttacting Parties
to prevent marine pollution. For example, regulation 2 describes tiie specific requfrements for tiie
tteatinent of land-based sources (LBS) and regulation 3 describes tiie principles for issumg permits
for industrial plants.
110 Article 6(3). Detailed requfrements for issumg permfr are discussed ui regulation 3, Armex in.
111 Article 13.
112 Article 16.
113 Article 17.
-217- Recommendations, Action Plans and Declarations
Ongoing efforts to control LBSMP in the Baltic Sea region are pursued tiu-ough
HELCOM recommendations, action programs, and Ministerial Declarations.
HELCOM makes recommendations to reduce pollution from LBS."^ The most important among these are: Recommendation 7/4 conceming measures for the reduction of waste discharges from urban areas by the preliminary freatment of waste from mdustrial plants; Recommendation 9/8 conceming measures for the reduction of industrial pollution; Recommendation 11/5 conceming restrictions on discharges from the iron and steel industry; Recommendation 12/4 conceming the principles of industrial release into municipal sewage systems;"^ Recommendation 21/3 conceming sustainable and environmentally fiiendly tourism in the coastal zones of the Baltic Sea
Area; and Recommendation 23/10 conceming reduction of discharges and emissions from production and formulation of pesticides."^ These recommendations are non- binding. They are usefiil to serve the purpose of the Baltic Sea Convention in relation to
LBSMP control. Apart from these recommendations, various Ministerial Declarations have been adopted to protect the Baftic Sea from LBSMP.
114 Since 1980 out of 160 recommendations, 63 recommendations are for LBSMP (For details see Hass
PM, 'Protecting tiie Baltic and Nortii Seas', m Hass PM (et al), Institiitions for the Earih: Sources of
Effective Intemational Environmental Protection, (The MIT Press, Cambridge, 1993) at 151.
11^ See Sroczynski P and Tyszecki A, List of Recommendations m the Helsmki Convention and tiie
Protection of tiie Baltic Sea Area, (Gdansk 1996).
116 http://www.helcom.fi/recommendations/reclist.html.
-218 The 1988 Declaration called for a 'substantive reduction of the load of pollutants' and
set forth a quantitative target (50% of total land-based sources discharges) and timetable
(as soon as possible but not later than 1995).in The commitaients made to reduce
LBSMP in the 1988 Declaration were affirmed in the 1990 Declaration."8 The
Ministerial Declaration of 1988 and the Baltic Sea Declaration of 1990, Baltic Sea
Environmental Declaration of 1992 and Declaration on Resource Mobilisation for tiie
Baltic Sea (Gdansk Declaration) of 1993 are also relevant. They promoted learning
about marine pollution problems, best practice and opportunities for developmg
stringent envfronmental standards. Following these declarations in 1993, HELCOM
adopted the Baltic Sea Jomt Comprehensive Environmental Action Program and set up
a special Task Force 1993-2012, the Program frnplementation Task Force to carry out
the program and to improve the statiis of the Baltic Sea environment."^ These
117
Declaration on the protection of the Marme environment of the Baltic Sea Area, Helsmki 1988,
reprinted in Inter-govemmental Activities in the Framework of the Helsinki Convention 1974-1994,
Baltic Sea Envfronmental Proceedings, No 56, 1st operative para and Baltic sea Declaration which
was attended by Heads of Governments and High Political Representatives of the Baltic Sea States,
laid down more ambitious targets.
11° Baltic Sea Declaration 1990, para 1, Reprinted in I Yearbook of International Environmental Law,
(1990)424.
119 The action program is expected to spend 18 bilhon eacus over the 20 year period from 1993-2012
under six headings. They are: policies, law and regulations; institutional stiengthening and human
resource development; investment activities targeting emissions at both point sources and non point
sources, management programs for coastal lagoons and wetiands; apphed research; and public
awareness and envfronmental education. In addition to the Confracting Parties, this program
involves Belaras, the Czech Republic, Noi-way, Slovakia, Ukraine, the European Bank for
Reconstraction and Development, the European Investment Bank, the Nordic Investment Bank, the
-219- recommendations and declarations are non-binding in intemational law. However, they are useful to intensify LBSMP confrol measures in the Baltic region. For example, following these recommendations and declarations, a series of pollution load compilation (PLC) exercises were conducted. These included monitoring and evaluation of the pollution load entering the Baltic Sea from land-based sources,'2o and generation of information on land-based sources.'21 Other initiatives included identification of 'hot spots' in the region (mainly municipalities and industrial sites) and a Global Environment Facility (GEF) proposal for a Baltic Sea Regional Project which addresses reduction of non point source pollution from agriculture.'22
From the prescriptive point of view, the Baltic Convention 1992 made substantial progress over the Helsinki Convention 1974. It includes some of the intemational
management principles. Providing criteria and measures for LBSMP control, this
regime has become dynamic and more effective for LBSMP control. Openness has
World Bank, the Nordic Envfronment Finance Corporation and the Intemational Baltic Sea Fishery
Commission. (Lofhigius J, Enviro, Vol 20, April 1996).
120 Victor DG, 'The Operation and Effectiveness of tiie Monfreal Protocol's Non-Comphance
Procedure', m Victor DG (et al), The Implementation and Effectiveness of Intemational
Environmental Commitinents: Theory and Practice, (Intemational Instittite for Apphed Systems
Analysis, 1998) at 189.
121 Of tiiese, tiie PLC exercises stand out: PLC-2 generated significant new information between 1990-
1992, and in 1996 PLC-3 began to provide unprecedentedly comprehensive and comparable data on
1995 pollution loads from land-based sources. (Victor DG, ibid, at 204). This issue was fiuiher
developed tiu-ough tiie 1998 Mfriisterial Declaration, devoted to carryuig out an extensive
assessment of tiie hnplementation and effectiveness of tiiis regune.
122 UNEP/GPA Coordination Office, Partiiers m Implementing tiie GPA, Regional Seas, The Hague,
Tlie Netiieriands, Issue 1.1, October 1999 at 30.
220- increased,'23 together with a willingness to admit LBSMP problems and to cooperate to confrol or eliminate them. However from the enforcement point of view this
Convention's mechanism is still lacking. Uncertainties, non-compliance or inadequacies exist in implementation in several areas.^24 j^g fristitutional organ for implementation, HELCOM, has no independent authority to oversee implementation of the Convention's provisions, HELCOM's recommendations or Minsterial declarations.
Implementation of these issues still depends on the goodwill of the Confracting
Parties.125 For example, due to the recommendations' non-binding legal nature, they have not been incorporated in Polish Law.'26 Like the superseded Paris Convention, this Convention's provisions are often indeterminate and the legally binding norms are considerably less exphcit here.'27 Substantial amounts of nutrients and hazardous
123 (As most of tiie countiies mcludmg Baltic countiies encourage public participation on
envfronmental issues). However, tiiere are a lot of criticisms m relation to tiie public participation
process adopted m different countiies of titis region. (For details see Stec S, Manual on Public
Participation in Environmental Decision Making: Current Practice and Future Possibilities in
Centi-al and Eastem Europe, (Regional Envfronmental Centie for Centtal and Eastem Europe,
Hungary, 1995).
124 Yox example Sweden has comphed witii most intemational envfronmental commitinents and taken
sfringent measures to reduce LBSMP in tiie Baltic Sea. On tiie otiier hand Poland has taken little
initiative to confrol Baltic effluents. See also Ciechanowicz J, 'The Helsmki Conventions:
Implementation fri Poland', Intemational Joumal of Marine and Coastal Law, 1998, Vol 13, No 3.
125 See Kiss A and Shelton D, Manual of European Environmental Law, (2nd ed, Cambridge
University Press, Cambridge, 1997) at 365.
126 Ciechanowicz J, 'The Helsinki Conventions: Implementation m Poland', supra note 124 at 406.
127 Ciechanowicz J, The Protection of tiie Marine Envfronment of the Baltic Sea m Vie^v of tiie New
Helsmki Convention of 1992: Present Problems of Intemational Law m Today's World, (Memonal
Book of Professor Marian Iwanejko, Cracow, 1995) at 225.
-221 - substances are still entering the coastal zones of the Baltic Sea.'28 It indicates that a major task remains for HELCOM and requfres a fiirther surge of cooperation between the countries of the region.
In response to this challenge, the Baltic Convention Contracting Parties decided in 1999 to reorganise HELCOM to promote the accomplishment of the overall goal of marine environmental protection. The following subsidiary bodies were estabhshed in the new
HELCOM: a sfrategy group for following developments within environmental pohcy; a monitoring and assessment group for focusing on input load and the environmental status; a land-based pollution group for designing measures to reduce pollution from land-based sources; and a nature conservation and coastal zone management group for protecting nature and biodiversity. These bodies prioritise eutrophication (especially the contribution of agriculture); hazardous substances; land fransport issues; harmonisation of HELCOM recommendations with EU directives; and implementation of tiie Joint Comprehensive Environmental Action Program and HELCOM
Recommendations.'29
hi spite of this restinctiue, fiirther environmental efforts to build up substantial
implementation capacity are needed.'30 Political and economic complexities need to be
128 Helsinki Commission Informs, Baltic Marme Envfronment Protection Commission, Press Release,
A Sttengtiiened HELCOM, 7 September 1999.
129 Helsmki Commission Informs, Baltic Marine Envfronment Protection Commission, Press Release,
A Stiengtiiened HELCOM, 7 September 1999)
130 For example US $400 million is requfred if HELCOM recommendations are to be met m full and
US $120 ntilhon is needed for sewers m Riga alone. (Cited m, Rogmko A, 'Domestic
-222- reduced and fimding and commitinent increased to improve domestic legislative and adminisfrative infrastmcture for greater LBSMP confrol.'3'
6.4 UNEP INITIATIVES TO CONTROL LBSMP
The United Nations Conference on the Human Envfronment (Stockhohn Conference) highlighted the need for a new inter-govemmental body to coordinate the envfronmental actions of the existing United Nations agencies.'32 in the hght of the Stockhohn
Conference, the United Nations General Assembly decided to establish the United
Nations Environment Program (UNEP) to 'serve as a focal point for envfronmental action and co-ordination within the United Nations system'.'33
From the very beginning of its establishment, the Goveming Council of UNEP chose the 'oceans' as a priority area for inter-govemmental environmental cooperation. This
Implementation of Baltic Sea Pollution Commitments m Russia and the Baltic States', supra note
120 at 602) where only 5.6% of the total sewage was tieated (ibid at 617).
131 UNEP, GPA News Forum, Information Note to tiie Delegates of tiie 1999 SIDS/UNGASS, (1999)
at 4. Although HELCOM has been active in making recommendations on measures that are to be
incorporated into the national legislation of the member states, this does not happen always because
of the above-mentioned complexity.
132 Prmciple 25 of the Stockholm Declaration states: 'States shall ensure that intemational organizations
play a coordmated, efficient and dynamic role for tiie protection and unprovement of tiie
envfronment'. In tiiis context Stockhohn Conference recommended that 'the mter-govemmental
body for envfronmental affafrs be estabhshed wititin tiie United Nations...' (Recommendation 14,
Stockholm Declaration 1972). See also Sohn LB, 'The Stockhohn Conference on tiie
EnvkonmenV, Harvard Law Journal, 1973, Vol 14, at 423-515.
133 United Nations General Assembly resolution (X^^I) of 15 December 1972.
-223- priority was consistent with the oceanic emphasis provided at Stockhohn, and apparently reflected a continuing concem with the problem of marine pollution.'34 In
1974, UNEP initiated a study of problems of marine and coastal pollution in various regions and developed its Regional Seas Program.
• Regional Seas Program (RSP)
The Regional Seas Program'35 is the centrepiece of the oceans program. It is a global programme implemented through regional components.
It is concemed not only with the consequences but also the causes of envfronmental degradation'36 and encompasses a comprehensive approach to combating envfronmental problems through the management of marine and coastal areas.'3^ Thus it includes monitoring of pollutants and sites identified as requiring immediate attention. Further it includes research on proposed confrol measures; and base line studies at national, Sub-
134 Johnston DM, Environmental Management in the South China Sea: Legal and Institutional
Developments, (East-West Centie: Honolulu, 1982) at 22.
135 In 1985, the name of UNEP's Regional Seas Programme was changed to tiie Ocean and Coastal
Areas Program (OCA) and its headquarters or tiie Program Activity Centie (PAC), moved from
Geneva to Nairobi (CaldweU LK, supra note 12 at 151-153). Nevertiieless tiie program is stiU
commonly called tiie Regional Seas Program as fr was origmally known.
136 TTxr-pp p^ainnal ^^pa^ Prnar^m rhttp://www.unep.org/water/regseas/reeseas.htin).
137 Gerges MA, 'Marine Pollution Monitoring', Assessment and Conti-ol: UNEP's Approach and
Sti-ategy, 1994, Vol 28, No 4 at 201.
-224- regional and regional levels on the sources, amounts, levels and effects of contaminants.'38
It is to be noted that each regional program includes an 'action plan', based on the following sfrategies: '39
(i) regional conventions, guidelines and actions for the conttol of marine pollution and for the protection and management of aquatic resources;
(ii) the assessment of the state of marine pollution, of the source and ttends of this pollution, and of the impact of the pollution on human health, marine ecosystems and amenities;
(iii) the coordination of efforts with regard to the environmental aspects of the protection, development and management of marine and coastal resources; and
(iv) the provision of support for education and ttaining efforts to make possible the full participation of developing countries m the protection, development and management of marine and coastal resources.''*^
At present, the Regional Seas Programme includes 16 regions,''*' involving more than
140 coastal states and territories covered by adopted action plans with 11 of them supported by Regional Seas Conventions.
138 Gerges M A, ' Marme PoUution Monitoring', ibid at 206.
139 Kwiaticwoska B, 'Marme pollution from Land-based Sources: Current Problems and Prospects',
Ocean Development and International Law, 1985, Vol 14 at 317. All tiiese components are
interdependent.
140 Neuman LD, 'The United Nations Regional Seas Program', Marine Technology Society Joumal,
1985, Vol 19 at 46.
141 Black Sea, Caribbean, East-Asian Seas, Eastem Africa, Kuwait region, Medrterranean, North-West
Pacific, Red Sea and Gulf of Aden, Soutii-Asian Seas, Soutii-East Pacfric, Soutii Pacific, Soutii-
West Atiantic, West and Cental Africa, Arctic. Baltic and North East Atlantic.
-225- FIGURE 6.1: REGIONAL SEAS
Please see print copy for image
Source; UNEP, Regional Seas Program, (http;//www.unep.org/water/regseas/htm).
This program has been a big success in establishing the administrative, scientific, political, and fmancial institutions in its different regions to address marine pollution
issues. However, its success in actuaUy confrolling marine pollution is less evident.
6.4.1 Legal Frameworks at the Regional Level
With the exceptions of the Paris Convention 1974 and the Baltic Convention 1974, the
initiative and preparatory work for regional marine environmental protection
conventions addressing LBSMP have come largely from UNEP.'42
142 Under UNEP Regional Seas Programme, a number of regional agreements have been concluded
witii details of provisions towards tiie conttol and elimmation of LBSMP. In addition to tiiese
UNEP agreements, botii tiie Paris Convention and Helsuiki Convention address tiie LBSMP m
detail.
226 • These UNEP-iiutiated conventions provide the legal framework for broad based cooperative regional and national actions for LBSMP confrol. They contain general provisions conceming, inter alia, the obligation to take appropriate measures to prevent marine pollution (including from LBS), cooperation in dealing with pollution, monitoring of pollution, environmental assessment, exchange of information, technological and financial assistance and settlement of disputes. They also provide a basis to establish financial and administrative frameworks and to implement the broad- based regional action plan.
These eleven conventions addresses LBSMP in very general terms but, in providing a legal framework for regional cooperation they significantly advance regional LBSMP control regimes.'43 They are:
The 1976 Barcelona Convention for the Protection of the Mediterranean Sea against
Pollution;'44 the Kuwait Regional Convention for Cooperation on the Protection of the
Marine Environment from Pohution 1978;'^^ the Convention for Cooperation m the
Protection and Development of the Marine and Coastal Envfronment of the West and
143 UNEP, Progress Report on the Implementation of and Recommendations to tiie Montteal
Guidelmes, 1991.
144 Sand PH, Marine Environment Law in the United Nations Environment Program, (Tycooly
Pubhshmg, 1988), at ix. The Convention was concluded on Febmary 16, 1976 and entered mto
force on Febmary 12, 1978 (15 ILM 1976, at 290). This Convention contams a Preamble, 29
articles and an Annex on an arbittation procedure for dispute settlement. This Convention was
amended in 1995, but has not yet come into force.
145 Kuwait Convention, Sand PH, ibid at 48. This Convention was adopted m Kuwait on 24 Apnl
1978, and came into force on 1 July 1979.
227 Central Afiican Region 1981;'46 the Convention for the Protection of the Marine
Environment and Coastal Area of the South East Pacific 1981;'47 the Regional
Convention for the Conservation of the Red Sea and Gulf of Aden Envfronment
1982;'48 the Convention for the Protection and Development of the Marine Envfronment
of the Wider Caribbean Region 1983;i49 the Convention for the Protection, Management
and Development of the Marine and Coastal Environment of the Eastem African Region
1985; 150 the Convention for the Protection of the Natiiral Resources and Envfronment of
the South Pacific Region 1986;'5i and the Convention on the Protection of the Black
Sea against Pollution 1992.'52
The starting point of UNEP's law making activities m the field, and first in a series of
UN sponsored 'regional seas' agreements was the 1976 Barcelona Convention for the
146 Abidjan Convention, ibid at 70. Adopted m Abidjan on 23.03.1981 and came mto force on
05.08.1984.
147 Lima Convention ibid, at 86. Adopted in Luna on 12 November 1981, and came into force on 19
May 1986.
14° Jeddah Convention, ibid at 118. Adopted in Jeddah on 12 Febmary 1982, and came into force on
20 August 1985.
149 Cartagena Convention, ibid at 137. Adopted in Cartagena de Indies on 24 March 1983, and came
into force on 11 October 1986.
150 Nairobi Convention, ibid at 159. Adopted in Nafrobi on 21 June 1985, and came into force on 30
May 1996.
151 Noumea Convention, ibid at 196. Adopted in Noumea on 25 November 1986, and came mto force
on 22 August 1990.
152 Bucharest Convention, 32 ILM (1993). Adopted in Bucharest on 21 April 1992, and came uito
force on 15 January 1994.
-228- Protection of the Mediterranean Sea against Pollution. As an example of the eleven regional seas framework conventions, it is briefly examined here for its relevance to
LBSMP.
The negotiation processes for Barcelona Convention were initiated under the auspices of
Food and Agricultural Organization (FAO) and later on, preparatory work was entrusted to the UKEP. After two years of negotiation (1974-76) the Mediterranean countries adopted the Convention in 1976.
The Barcelona Convention addresses various sources of marine pollution including
LBSMP and it also takes into account co-operative approaches in terms of pollution emergencies,'53 monitoring'54 and scientific and technological'55 issues. In general this
Convention obliged the Confracting Parties of the Mediterranean States'56 to take appropriate confrol measures, jointly or individually, for all types and sources of pollution.'57 The Confracting Parties designated the UNEP to be responsible for
153 Article 9.
154 Article 10.
155 Article 11.
156 According to Article 1 of this Convention, 'the Mediterranean Sea Area shall mean the maritime
waters of the Mediterranean Sea proper, includmg its Gulfs and Seas, bounded to the west by tiie
meridian passing through Cape Spartel lightiiouse, at the enfrance of tiie sttaits of Gibraltar, and to
tiie east by the southern limits of tiie sttaits of tiie Dradanelles between Mehmetcik and Kumkale
lighthouses'.
157 Article 4.
-229- carrying out Secretariat fimctions towards the implementation of the provisions. These include preparation of the meetings, notifications, consultation and co-ordination'58.
As far as LBSMP are concemed Article 8 of the Barcelona Convention 1976'59 provides:
The confracting parties shall take all appropriate measures to prevent, abate and combat pollution of the Mediterranean Sea area caused by discharges from rivers, coastal establishments or outfalls, or emanating from any other land-based sources within thefr territories.
The obligation set out in this provision is too general and to lead to a great deal of
specific action of LBSMP control. Imposing a similarly vague obhgation on States to
undertake appropriate measures to prevent, abate, and combat LBSMP, other regional
framework conventions followed the same approach such as the Barcelona
Convention.'60 In this respect there are no significant differences between them.
158 Articled.
159 15 ILM, 1976 at 285; Sand PH, supra note 144 at 3.
160 Kwiaticowska B, supra note 139 at 317. These mclude: Article 6 of tiie Kuwafr Regional
Convention for Cooperation on tiie Protection of tiie Marine Envfronment from Pollution 1978;
Article 7 of tiie Convention for Cooperation m tiie Protection and Development of tiie Marine and
Coastal Environment of tiie West and Centtal African Region 1981; Article 5 of tiie Convention for
tiie Protection of tiie Marine Envfronment and Coastal Area of tiie Soutii East Pacific 1981; Article
VI of tiie Regional Convention for tiie Conservation of tiie Red Sea and Gulf of Aden Envfronment
1982; Article 7 of tiie Convention for tiie Protection and Development of tiie Manne Envfronment
of tiie Wider Caribbean Region 1983; Article 7 of tiie Convention for tiie Protection, Management
and Development of the Marine and Coastal Envfronment of the Eastem African Region 1985;
Article 7 of tiie Convention for tiie Protection of tiie Namral Resources and Envuonment of tiie
-230- 6.4.1 (a) Protocols on LBSMP Control
Regional framework conventions are elaborated by specific protocols on land-based sources. In terms of adoption of protocols, regional baselme stiidies on the sources and amounts of contaminants reaching the coastal waters of the region from LBS are undertaken in order to provide the background uiformation needed for eventual negotiations concemfrig the confrol of LBSMP by the Parties to the regional convention.'6'
To adequately deal with the pollution control measures Article 4(2) of the Barcelona
Convention and other UNEP regional seas conventions make a provision for the adoption of protocols.'^^ j^ five regional seas conventions, protocols have been adopted to control LBSMP. They are as follows:
South Pacific Region 1986; and Article 7 of the Convention on the Protection of the Black Sea
Against Pollution 1992.
161 Gerges MA, 'Marine Pollution Monitoring, Assessment and Conttol: UNEP's Approach and
Sttategy, supra note 137 at 206.
162 For example, article 4(2) of the Barcelona Convention states: 'The conttacting parties shaU co
operate in the formulation and adoption of protocols, m addition to tiie protocols opened for
signature at tiie same time as tifrs Convention, prescribmg agreed measures, procedures and
standards for the unplementation of tiiis Convention'. Two protocols were signed at tiie same time
as the adoption of the Barcelona Convention. They are: Protocol for the Prevention of Pollution of
tiie Mediterranean Sea by Dumpmg from Ships and Afrcraft, 1976; and Protocol Conceming Co
operation in Combating Pollution of the Mediterranean Sea by Oti and Other Harmful Substances in
Cases of Emergency 1976. Other protocols were adopted later on. They are: Protocol for tiie
Protection of tiie Mediterranean Sea Agauist Pollution from Land-based Sources, 1980 (Atiiens
-231- • the Protocol for the Protection of the Mediterranean Sea Against Pollution from
Land-based Sources 1980163 (hereinafter Athens Protocol);
• the Protocol for the Protection of the South-East Pacific against Pollution from
Land-based Sources (1983, 1986), (hereinafter Quito Protocol);
• the Protocol for the Protection of the Marine Environment [of the Kuwait Region]
against Pollution from Land-based Sources 1990'64 (hereinafter Kuwait Protocol);
• the Protocol on Protection of the Black Sea Marine Environment against Pollution
from Land-based Sources (1992,1994)'65 (hereinafter Bucharest Protocol); and
• the Protocol Concemmg Pollution from Land-based Soiuces and Activities in the
Wider Caribbean Region 1999'66(hereinafter Aruba Protocol).
As it is helpfiil to follow up the development of LBSMP confrols through subsequent
Protocols, the following protocol descriptions are stmctured chronologically.
Protocol 1980, amended in 1986); Protocol Conceming Mediterranean Specially Protected Areas,
1982 (Geneva Protocol 1982, amended in 1995); Protocol for the protection of the Mediterranean
Sea against Pollution - Exploitation of the Continental Shelf and the Sea Bed and its Subsoil,
(Madrid Protocol), 1995; and Protocol on the Prevention of PoUution of the Mediterranean Sea by
Trans boundary Hazardous Wastes and thefr Disposal, Izmfr, 1996).
163 19 ILM (1980) at 869.
164 32 ILM (1990, 1993).
165 32ILM(1993)atll22.
166 Adopted on 6 October, 1999, at Amba. Following frs adoption, four Conttacting Parties signed tiie
Protocol, indicating tiiefr uitent to ratify. nittp://www.cep.unep.org/pubs/legislation/lbsmpnut.httnl).
232 (i) Mediterranean Sea: The Athens Protocol
This was the first Protocol specifically dfrected to LBSMP under the UNEP Regional
Seas Program. It was adopted in Athens on 17 May 1980 with a view to implementmg articles 4(2) and 8 of the Barcelona Convention. This Protocol came into force on 17
June 1983. The Parties are Albania, Algeria, Bosnia and Herzegovma, Croatia, Cypms,
Egypt, France, Greece, Israel, Italy, Lebanon, Libya, Malta, Monaco, Morocco,
Slovenia, Spain, Syria, Tunisia, Turkey and the European Union.
FIGURE 6.2: MEDITERRANEAN Please see print copy for image
Source: UNEP, Regional Seas Programme (htip://www.unep.org/water/regseas/medu.htiii).
This Protocol embraces both the industiially developed Mediterranean economics to the north and the less developed economics of the south and eastem shores.'^7 ft obhges
167 Boyle AE, 'Land-based Sources of Marine Pollution', Marine Policy, 1992, Vol 16, No 1 at 27.
Around tiie Mediterranean Sea, tiiere are 21 distinct coastal states over tiuee Continents witii
233 Contracting States to cooperate in scientific and technological fields, 'particularly, research on inputs, pathways and effects of poUutants and on the development of new methods for their freatment, reduction or elimination'.'68
This Protocol is designed to regulate three types of LBSMP. They are: (a) polluting discharges reaching the Protocol Area from land-based sources within tiie territories of the Parties, in particular, those from outfalls discharging into the sea or through coastal disposal; through rivers, canals or other watercourses, includfrtg underground watercourses, or through mn-off; (b) pollution from land-based sources transported by the atmosphere; and (c) polluting discharges from fixed man made offshore stmctures which are tmder the jurisdiction of a Confracting party and which serve purposes other than exploration and exploitation of mineral resources of the continental shelf and the sea-bed and its subsoil.'^9 Further, it extends the area of application for pollution confrol from territorial sea to intemal waters by stating that this Protocol will be apphed to waters on the landward side of the baselines from which the breadth of the territorial sea is measured and extending, in the case of watercourses, up to the freshwater lunit and saltwater marshes communicating with the sea.'7°
This Protocol obliges Parties to eliminate pollution by substances listed in Annex I and to strictiy limit pollution by substances listed in Annex n.'7' The Protocol also obhges
dfrferent economic and political systems. (Gavouneh M, Pollution from Offshore InstaUations,
(Graham and Trotinan, 1995), at 43.
168 Article 9 of tiie Athens Protocol.
169 Article 4.
170 Article 3.
171 Articles 5&6.
-234- States to estabhsh common guidelines, standards or criteria, to deal witii a number of issues, i.e. pipelines for coastal outfalls, treatment of waste, water quahty, control of replacement products, mstallations and industrial and other processes causing significant pollution of the marine environment.'72 This Protocol also provides provisions on monitoring'73 and scientific and technical co-operation to tiie fiillest possible extent.'74
Due to increasing envfronmental pressure resulting from LBSMP in the Meditenanean coastal waters, the Confracting Parties feft the need to sfrengthen tiie implementation measures by amending the Protocol. Following a Conference of the Contracting Parties held in Syracusa, Italy, 6-7 March 1996, this Protocol was amended and retitled; tiie
Protocol for the Protection of the Mediterranean Sea against Pollution from Land- based Sources and Activities. '75 The revisions incorporate inclusion of the intemal waters up to the brackish waters, coastal lagoons and ground waters;'76 expand the list of Annex 1 substances and oblige State Parties to eliminate those substances that are toxic, persistent and liable to bioaccumulation listed in Annex I.'77 The Protocol also standardises the issuing of authorisations to discharge pollutants'78 and obliges States to
172 Article 7.
173 Article 8.
174 Article 9.
175 UNEP (OCA)/MED lG.7/4.
176 Article 3(d) of tiie Protocol for the Protection of tiie Mediterranean Sea agamst Pollution from
Land-based Sources and Activities 1996.
177 Article 5(1).
178 Article 6.
-235- implement the precautionary principle and polluter pays principle.'79 The Protocol also obhges Parties to take into account best available technology and best envfronmental practice, such as cleaner production technologies where appropriate,'^o and to consuh in terms of development of action plans, guidelines and programs to contiol LBSMP.'^'
These provisions have sfrengthened and advanced efforts fri meeting the goals of
LBSMP control in the Mediterranean region. They signify the commitments of tiie
Contracting Parties to confrol LBSMP.
In 1995, the Meditenanean Action Plan (MAP) that was adopted in 1975 entered into a new phase and was renamed the Action Plan for the protection of the Marine
Environment and Sustainable Development of the Coastal Areas of the Meditenanean.
It is regarded by UNEP as a working model for broad-based regional marine envfronmental cooperation.'^2 MAP is helping to strengthen the institutional capacities.
It supports State implementation primarily through the wealth of the Mediterranean
Tmst Fund, to which all MAP Confracting Parties contribute according to mutually agreed levels. Other sources of fimding include the UN agencies, the GEF, European
Community and concemed NGOs. Through these mechanisms, capacity building m the
179 The Preamble of tiie Protocol.
1^0 Article 5(4).
181 Article 5(2).
182 UNEP, The Mediterranean Action Plan, August, 2000, at 14.
-236- field of monitoring and assessment has been upgraded under the Program for the
Assessment and Confrol of Pollution in the Mediterranean Region (MED POL).'83
For the next decade, one of the key priorities of the MAP is to bring about a massive reduction in pollution from land-based sources.'^4 Through the adoption of Sfrategic
Action Program (SAP), MAP participants have made a commitment to safely dispose of sewage, by 2005, from towns and cities with more than 100,000 inhabitants, and to the intensive reduction of pollution at source, via cleaner production, for instance.'^5
All these activities are signs of promotion of political wills and commitment of States of the Mediterranean region to control LBSMP in an integrated and sustainable manner.
Innovative management principles adopted under 1996 Protocol and measiues taken under the new phase of the MAP are notable and encouraging. From a practical point of view they could lead the eventual elimination of LBSMP in this region.
(ii) South-East Pacific Ocean: The Quito Protocol.
The Quito Protocol was adopted in Quito on 22 July 1983. It came into force on 21
September 1986. The Parties to this Protocol are the countiies of the South East Pacific
region. They are Chile, Colombia, Costa Rica, Ecuador, El Salvador, Honduras,
183 UNEP/GPA Coordmation Office, Partners m Implementing tiie GPA Regional Seas, GPA.
Coordination Office, The Hague, The Netiieriands, September, 1999, Issue 1 at 19.
184 UNEP, The Mediterranean Action Plan, August, 2000, at 36.
185 UNEP, The Mediterranean Action Plan, August, 2000, at 21.
-237- Nicaragua, Panama and Pern, fri terms of pollution confrol its apphcation extends to intemal waters.'86
FIGURE 6.3: SOUTH EAST PACIFIC Please see print copy for image
Source: UNEP, Regional Seas Programme (http://www.unep.org/water/regseas/sepac.htm).
This Protocol prescribes general obhgations upon the Contracting Parties to confrol
LBSMP.'87 It contains provisions on obligations in respect of Black and Grey hst substances.'88 According to Article IV and V of this Protocol, High Confracting Parties
186 Article 2 of the Quito Protocol.
187 Article 3 of the Quito Protocol.
188 This Protocol contains 3 Annexes with a list of Black and Grey list substances (Annex I and II) and
on tiie authorisation criteria for the discharge of wastes (Annex III).
238 agreed only to endeavour to ehminate Black hst substances contamed in Annex I and only to endeavour progressively to reduce the Grey list substance listed m Annex n.
The Protocol contains other provisions on cooperation among the Confractmg Parties, mcluding monitoring programs, exchange of information and scientific and technological cooperation.'89 It is to be noted that, although the emphasis is different here, the structural basis of this Protocol is similar to that of the Athens Protocol 1980 in terms of LBSMP control. They are not significantiy different to one another. Quito
Protocol emphasises economic capacity and development needs'^o rather than detailed programs and measures for emission standards. This may be interpreted as a less strict approach to control measures for LBSMP.
Although the main provisions of the Quito Protocol are formulated similarly to those of the Athens Protocol 1980, Article XIII of the Quito Protocol is an exception in one respect. In providing provisions on punitive measures, this Article made a significant improvement on the Athens Protocol model by stating:
Each of the high conttacting parties undertakes to ensure comphance with the provisions of this protocol and to adopt measures available to it that it deems pertinent m order to prevent and penalise any act, which infringes these provisions.
The high confracting parties shaU report to the Executive Secretariat on the legislative measures and regulations they have adopted for tiie application of the provisions of tiie foregoing paragraph.
This provision can be noted as a new approach, departmg from traditional provisions of
LBSMP control. However, this Protocol does not include sustainable management
189 Articles IV, VII, VIII, IX and X respectively.
190 Article 4.
-239 principles such as precautionary principles, polluter pays principle and cleaner production. It is basically an empty shell in terms of management of LBSMP in an innovative way. Its implementation system remains weak.
(iii) Kuwait (ROPME Area): The Kuwait Protocol
Because of continuing environmental deterioration caused by pollution from land-based sources the Confracting States to the Kuwait Regional Convention determined that
LBSMP confrol measures needed to be strengthened on a national and regional basis.'^i
A Protocol was adopted in Kuwait on 21 Febmary 1990 based on Article III (b) and
Article VI of the Kuwait Convention. This Protocol came into force on 2 January 1993.
Parties to the Protocol are Bahrain, fran, Iraq, Kuwait, Oman, Quater, Saudi Arabia and
United Arab Emirates. It applies to intemal waters, defmed as waters on the landward side of the baselines from which the breadth of the territorial sea of the Contactmg
States is measured and extending, in the case of watercourses, up to the fresh water lunit and salt-water marshes communicating witii the sea.'^z Its detailed provisions mclude promotion of combined effluent freatinent and guidelmes, regulations and permits for the release of wastes.
191 Preamble of the Kuwait Protocol.
192 Article 2 of the Kuwait Protocol.
-240- FIGURE 6.4: ROPME AREA/RED SEA GULF OF ADEN REGION
Please see print copy for image
Source: UNEP, Regional Seas Programme (http://www.unep.org/water/regseas/kuwait.htm).
The Kuwait Protocol obliges the Confracting States to implement action programs based on LBSMP confrols as outlined in Annex I'93 where programs and measures are required to progressively replace products, installations and industrial or other processes causing significant pollution to the marine environment.'^4 Recognising the economic and technical difficulties which often hamper the proper treatment of the effluents individually, this Protocol obliges the Confracting Parties to undertake joint and /or
193 Article IV.
194 See Annex I, Kuwait Protocol. To carry out the source conttol approach, attention is given to
curtailment of manufacturing of certain harmful products, change of raw materials, change of
manufacturing process, good operating and housekeepmg practices, and reuse and recyclmg.
241- combined effluent freatment to the extent possible, and industrial location planning programs as outiined in Annex II to this Protocol .'^5
As outlined in Annex HI to the Protocol, the Contracting Parties are required to progressively develop and adopt regional guidelines, standards or criteria, regional regulations and stricter local regulations for the freatment of all significant LBS, in cooperation with competent regional and intemational organisations .'^6
A sigiuficant advance is a specific provision relating to Environmental Impact
Assessment (EIA). It requires the Contracting Parties to undertake EIA on a priority basis in order to ensure that appropriate measures are taken to prevent or mitigate envfronmental risks during the planning and implementation stages of selected development projects, particularly in the coastal areas of the Parties.'^7 xhis provision also obliges Parties to develop technical and other guidelines to carry out EIA. These include:
• a description of the geographical location and of the initial ecological state of the
marine and coastal environment;
• an indication of the nature, aims and scope of the proposed activities;
195 See Article V and Annex II. Annex II outiines the promotion of joint and/or combined effluent
tteatment. According to Article 1 of the Protocol, combined tteatment means the tteatment of
industtial effluents along with domestic sewage and joint tteatment means tieatinent of the effluents
from more than one industrial source.
196 See Article VI and Annex III.
197 Article VIII (1).
-242- • a description of the foreseeable dfrect and indirect long-term and short-term effects
of the activities on the marine environment; and
• a statement setting out the measures proposed to reduce to the muiimum risk of
pollution by carrying out the activities, cost benefit analysis; and
• a brief summary of the assessment. '98
Another significant legal development in the Kuwait Protocol is that it includes a
specific article on responsibihty and liability for damage. Article XTTT states:
1. Confracting States shall ensure that recourse is avatiable in accordance with thefr legal systems for prompt and adequate compensation or other relief in respect of damage caused by pollution of the marine envfronment under thefr jurisdiction.
2. Confracting States shall formulate and adopt appropriate procedures for the determination of liability for damage resulting from pollution from land-based sources.'99
Although the liability provision of this Protocol does not go any fiirther than LOSC or
customary intemational law it does attach habihty specifically to LBS management and,
thereby, to non-fiilfilment of EIA obligations.
The Protocol's source control approach in Annex 1 is different to the usual black/grey
list approach. It is more progressive as it emphasises cleaner production through coastal area management programs. Its further achievements include reviews of the state of the marine environment, development of integrated coastal area management guidelines and
198 Article VIII (2).
199 Article XIII.
-243- regional assessment on LBA in support of GPA implementation.^oo However, this
Protocol does not include precautionary principle and polluter pays for the management
of LBSMP. Its implementation mechanisms are still weak.
(iv) Black Sea: The Bucharest Protocol
The Bucharest Protocol is an integral part of the Bucharest Convention. It was adopted
at the same time as the Convention and most of the important provisions of this Protocol
are linked with the Convention provisions, which need to be read together. This
Protocol was adopted in Bucharest on 21 April 1992 to prevent, reduce and confrol
LBSMP of the Black Sea and came into force on 15 January 1994. The Parties to this
Protocol are Bulgaria, Georgia, Romania, Russian Federation, Turkey and Ukraine.
This Protocol contains 7 Articles and 3 Annexes dealing with the LBSMP.
200 UNEP/GPA Coordmation Office, supra note 183 at 18.
-244- FIGURE 6.5: BLACK SEA REGION
Please see print copy for image
Source: UNEP, Regional Seas Programme (http://www.unep.org/water/regseas/blacksea.htm).
Article VII of the Bucharest Convention obliges States to prevent, reduce and control pollution of the marine environment of the Black Sea from LBS in accordance with the
Protocol on the protection of the Black Sea marine environment from land-based sources, as part of the Convention. In line with tiiis prescription. Article 1 of the
Bucharest Protocol states:
In accordance witii Article VII of the convention, the contiactmg parties shall take all necessary measures to prevent, reduce and confrol pollution of the Marine Envfronment of the Black Sea caused by discharges from land-based sources on their territories such as rivers canals, coastal establishments, other artificial stinctiu-es, outfalls or mn-off or emanating from any otiier land-based source, including through the atmosphere.
Article III of the Protocol states that it shall apply to tiie Black Sea as defined in Article
I of the Bucharest Convention and to the waters landward of the baselmes from which
245 the breadth of the territorial sea is measured and, in the case of freshwater courses, up to the freshwater limit.201
Article rv obliges the Confracting Parties to prevent and ehnunate the pollutant substances and matters listed in Annex I and to reduce and whenever possible to eliminate the substances and matters listed in Annex n.202
Pursuant to the provisions of Article XV203 of the Bucharest Convention, Parties must carry out moiutoring activities in order to assess the levels of pollution, its sources and ecological effects along its coast.204 in conformity with the same Article of the
Convention, State Parties are obliged to cooperate in elaborating common guidelmes, standards or criteria for monitoring and to undertake research for the treatment and quantities of discharged substances listed in Annexes I and 11.^05
It is to be noted that this is the only Protocol on LBSMP whose provisions are integrated with the Convention. However, the stmctural basis for the unplementation of pollution control measures and programs of this Protocol are similar to those of Athens
Protocol 1980. Under these control measures some developments have been achieved to confrol LBSMP. These include identification of high priority sites (hot spots) for
201 'This Convention shah apply to tiie Black Sea proper witii tiie soutiiem hmit constituted for tiie
purposes of tiiis Convention by tiie hne jommg Capes Kelagra and Dalyan'. (Article 1(1))
202 Annex I and Annex II to the Protocol contains hazardous substances and matter and noxious
substances and matter, respectively.
203 Which prescribed the monitoring and envfronmental impact assessment provisions.
204 Article 5, Bucharest Protocol.
205 Article 6, Bucharest Protocol.
-246- reducmg discharges of pollutants, adoption of harmonised water quality objectives and
standards in the Black Sea region.206 However, innovative management principles
including precautionary principle and polluter pays and cleaner production principles
are absent in the Protocol.
(v) Caribbenean Sea: The Aruba Protocol
FIGURE 6.6: CARIBBEAN REGION Please see print copy for image
Source: UNEP, Regional Seas Programme, (http://www.unep.org/water/regseas/canb.htm)
After years of negotiations, the Confracting Parties to the Cartagena Convention
adopted the Aruba Protocol in Amba on 6 October 1999. Based on Article 7 of the
Cartagena Convention, this Protocol sets out obhgations to confrol LBSMP, in
accordance witii national laws, tiie provisions of the Protocol and intemational law.207 it
provides a general framework for bilateral. Sub-regional, regional, and global
206 UNEP/GPA Coordmation Office, supra note 183 at 11.
207 Article 3 of tiie Amba Protocol.
247- cooperation on issues including monitoring activities, research and exchange information. 208
This Protocol contains four Annexes. Annex I provides a list of LBS and activities m the Wider Caribbean region. Annex II outlines the process for developing regional standards and practices for LBSMP confrol, Annex III estabhshes effluent limits for domestic discharges, and Annex IV provides specific plans and programs for agricultural non-point sources. These annexes relate to the operation of the Protocol's provisions through management plans.
In part, the significance of this Protocol is that it defines point and non-point soiirces,209 domestic waste-water^'o and agricultural non-point sources of pollution^" and includes
208 Article 5.
209 'Point Sources' means sources where tiie discharges and releases are mttoduced mto the
envfronment from any discemable, confmed and discrete conveyance, mcludhig but not lunited to
pipes, channels, ditches, tiinnels, conduits or wells from which pollutants are or may be discharged
[(AnnexIA(l)] and
'Non Pomt Sources' means sources, otiier tiian pomt sources, from which substances enter tiie
envfronment as a result of land run-off, precipitation, atinospheric deposition, dramage, seepage or
by hydrologic modification. [(Annex I A(2)].
210 'Domestic waste-water' means aU discharges from households, commercial facilities, hotels, septage
and any otiier entity whose discharge mcludes tiie foUowuig: a) Toilet flushfrig (black water) b) Discharges from showers, wash basms, kitchens and laundries (grey water); or c) Discharges from small mdustties, provided tiiefr composition and quantity are compatible witii
tieatinent m a domestic waste water system. [(Annex III A(l)].
-248- some new approaches for LBSMP control. The inclusion of regional effluent limitations for domestic wastewater and specific plans to address agricultural non-point sources are also notable. Conceming effluent limitations for domestic waste-water, this Protocol prescribes time-tables for achieving the limits and emphasises the need for training programs for waste water collection and treatment system operators.2'2 In relation to control of agricultural non-point sources of pollution it merely obliges the Confracting
Parties to formulate policies, plans and legal mechanisms.2i3
Another progressive development evident in this Protocol is its specific provision for
public participation. The Protocol obliges the Contracting Parties, in accordance with
thefr national laws and regulations, to promote public access to relevant information and
documentation conceming pollution of the Convention area from LBS. Further it
outlines opportunities for pubhc participation in decision-making processes conceming
the implementation of the Protocol.2'4 it also gives emphasis to environmental education
and awareness, obtigfrig Confracting Parties to develop and unplement mdividually and
collectively programmes on environmental education and awareness for the pubhc,
related to the need to prevent, reduce and confrol pollution from LBS and activities.2'5
211 'Agriculttiral non-pofrit sources of pollution' means non pomt sources of pollution origmating from
tiie cultivation of crops and rearing of domesticated anhnals, excluduig mtensive anfrnal rearing
operations tiiat would otiierwise be defmed as point sources. [(Annex IV, A(l)].
212 Annex III.
213 Annex IV.
214 Article 10.
215 Article 11.
-249- To facilitate LBSMP confrol strategies this Protocol promotes development of incentive programs;2'6 mobilisation of finance and innovative methods for mobihsing and channelling resources.2i7 Progress under the Protocol towards LBSMP confrol in tiie region includes the completion of compendiums on regionally appropriate technologies for sewage treatment and best management practices for agricultural non-point sources, as well as fraining on envfronmentally sound technologies for sewage treatment, development of guidelines for ICZM and the development of a proposal for a regional prototype project on land-based activities.2'8
It may be suggested that the regional mechanism established in this Protocol is a symbol of development of regional political commitment on LBSMP control. In terms of implementation of the Global Programme of Action for the Protection of the Marine
Environment from Land-based Sources (the GPA) at regional levels this Protocol can be seen as a sign of advance. However, the text of this Protocol does not include precautionary principle and polluter pays principle. Its implementation mechanisms to achieve the goal effectively, remain weak.
6.5 COMPARATIVE ANALYSIS
Although the general provisions of UNEP regional seas framework conventions are no more specific than tiie LOSC regarding the duty to take measures to control LBSMP, tiiey do offer a framework for the negotiation of more detailed legal measures for
216 Article 13.
217 Article 16.
218 UNEP/GPA Coordination Office, supra note 183 at 12.
-250- regional confrols.2i9 it has been pointed out that the UNEP LBSMP Protocols set out general obligations to prevent, reduce and confrol LBSMP in ahnost the same manner.
However, the degree of strictiiess in obligation to confrol pollutant substances varies between the Protocols, as well as between them and the OSPAR and Baltic conventions.220 in order to carry out obhgations in relation to control of substances on the Black lists, expressions used include, 'to counteract the infroduction ... of hazardous substances',221 'undertake to eliminate the pollution',222 'endeavour to prevent, reduce and control and eliminate',223 'undertake appropriate and necessary programmes and measures to control',224 and 'take appropriate measures in accordance with national and intemational law'.225
In relation to substances on the Grey lists, the degree of strictness again varies considerably between instruments. The Paris Convention, for example, intended to
219 Bimie PW and Boyle AE, International Law and the Environment, (Oxford University Press, 2"^* ed
2002) at 411.
220 For example, the Paris Convention, the Baltic Convention and the Athens Protocol, the Kuwait
Protocol and the Bucharest Protocol state that, Contiacting Parties 'shall take all appropriate
measmres', where as the Quito Protocol says Confracting Parties 'shaU endeavour to adopt
appropriate measures' which is less prescriptive than the former. The Quito Protocol says best
possible efforts should be taken into accotmt.
221 Article 5 of the Helsinki Convention.
222 Article 4 (l)(a) of tiie Paris Convention, Article 3 of OSPAR Convention 1992, Article 5 of tiie
Athens Protocol, Article 4 of the Bucharest Protocol, Article 6 of tiie Baltic Convention 1992.
223 Article 4 of the Quito Protocol.
224 Article 4 of the Kuwait Protocol.
225 Article 3 of the Aruba Protocol.
-251- eliminate pollution from Grey hst substances.226 The Helsinki Convention states tiiat
Grey list substances shall not be mfroduced in significant quantities without a prior permit,227 the Athens Protocol intends to stiictly hmit the mfroduction of Grey list
substances into the seawater.228 The Quito Protocol emphasises tiie progressive reduction of Grey hst substances,229 the Bucharest Protocol mtends to generally reduce,
and whenever possible, to eliminate the LBSMP230 and the Kuwait Protocol emphasises
a source confrol approach through progressive replacement of products.23i
It is evident that, for the discharges of those substances, it is common that ah treaties
require permit authorisation from competent national authorities. However, from the
quantitative point of view, there is a difference in the requirements of the permits.
According to the Helsinki and Baltic Conventions, and the Aruba Protocol, a permit is
required when the discharge is significant,232 but under the OSPAR Convention and the
1996 amendment to the Athens Protocol, a permit is required when such discharge
226 Article 4.
227 Article 6.
228 Article 6.
229 Article 5.
230 Article 4.
231 Article 4 and Annex 1 of tiie Kuwait Protocol.
232 Articles 6(3) &6(4) of tiie Helsinki Convention 1974, Article 6(3) of tiie Baltic Convention 1992
and Article IV and Annex II (c)(2) of tiie Amba Protocol.
-252- affects the marine environment.233 The Paris Convention, and the Athens, Quito and
Kuwait Protocols, do not provide any distinction on quantities234 of discharges.
There are also variations in regional LBSMP control regimes in terms of institutional
arrangements. The Contracting Parties of the Barcelona Convention, for example, did
not establish a Secretariat of thefr own, like the OSPAR, Baltic and other UNEP RSP
Conventions. The Balcelona Convention Parties designated UNEP for the purposes of
carrying out Secretariat fiinctions.235 The Regional Coordinating Unit for the
Mediterranean Action Plan (MEDU) was established in Athens to coordinate activities
of the MAP. MEDU is performing such Secretariat fimction in the name of UNEP. The
other Conventions have independent Secretariats service their LBSMP Protocols.
Many activities of UNEP regional seas program implement the 1995 Washington
Global Program of Action as set out in the following table.
233 Article 2(1) of Annex 1 of tiie OSPAR Convention 1992. Article 6 and Armex II, C(6) of tiie
Protocol for tiie Protection of tiie Mediterranean sea against Pollution from Land-based Sources and
Activities 1996.
234 Article 4(2)(b) of tiie Paris Convention and Article 6(3) of Atiiens Protocol and Article 6(3) of
Kuwait Protocol.
235 Article 13. Functions include tiie convenmg of and preparation of meetings and conferences of
Conttacting Parties, ttansmission to tiie Contiacting Parties of notifications, reports and otiier
mformation received ui accordance witii tiie Convention, consideration of mquuies by and
mformation from tiie Contiacting Parties and consuhation witii tiie Parties on questions relating to
tiie Convention and Protocols and Annexes tiiereto, to performance of tiie functions assigned to
UNEP by the Contacting Parties, in order to ensure tiie necessary co-ordmation witii otiier
intemational bodies.
-253- TABLE 6.2: INSTITUTIONAL ARRANGEMENTS FOR THE PROTECTION OF THE MARINE ENVIRONMENT FROM LAND-BASED ACTIVITIES Please see print copy for image
Source: UNEP, Institutional Arrangements for Implementation of the Global Program of Action for the
Protection of the Marine Environment from Land-based Activities, (UNEP/GC.19/INF.4, 8
November 1996) at 41-48.
They operate whetiier with foresight or hindsight, within the framework for regional implementation of the GPA. GPA work plans are prepared in consultation with the
-254- Secretariats of the various regional seas programs. These work plans, includmg thefr timetables, are based on activities and resources planned by relevant regional goveming bodies that guide the implementation of their regional programs.236 Thus, regional programs contribute to global LBSMP confrol in a number of areas of the world oceans.
The UNEP regional seas instmments and action plans are formulated according to the practical needs of the regions, as perceived by governments concemed. They serve to coordinate the efforts of national institutions, identify thefr capabihties and needs,237 and provide generic support to confrol LBSMP. Thus, through the GPA at the global level and through treaties and action plans at the regional level, each linked through various consultative and coordinating mechanisms, UNEP is making gradual progress in addressing LBSMP problems. For example, to promote the implementation of the GPA at regional levels, UNEP's Hague Coordination Office for the GPA has conducted a series of regional technical workshops, for the program of 'regional implementation'.238
The main objectives of these workshops were to fmalise regional overviews of land- based activities; agree on the development of regional components of the Clearing-
House mechanism; and to develop regional programs of action to address impacts of land-based activities in the marine environment.239 They were a means of strengthening
236 UNEP, Institutional Arrangements for Implementation of flie Global Program of Action for the
Protection of the Marme Environment from Land-based Activities, (UNEP/GC.19/INF.4, 8
November 1996) at at 80.
237 Neuman LD, 'United Nations Regional Seas Program', supra note 140 at 49.
238 UNEP, Institiitional Arrangements for Implementation of tiie Global Program of Action for tiie
Protection of the Marine Envfronment from Land-based Activities, supra note 236 at 19.
239 UNEP, Leaflet from UNEP/GPA Coordination Office of tiie Global Program of Action for tiie
Protection of tiie Marme Envfronment from Land-based Activities, 1999 at 6.
-255- national capabilities for LBSMP confrol by identifying problems and barriers. The following table lists these regional workshops and the priority pollutants or sources of pollution identified in each.
TABLE 6.3: PRIORITY IDENTIFICATION OF LAND-BASED SOURCES THROUGH REGIONAL WORKSHOPS
Please see print copy for image
Source: UNEP/GPA Coordmation Office, Regional Implementation of Programs of Action, 1999 at 8.
From tiiese regional workshops, needs for capacity buildmg assistance were identified in tiie field of monitoring, environmental law and protocol development, uistimtional mechanisms, project ftmdmg, technical assistance and training and awareness m developing national sfrategies on LBSMP control and thefr implementation.24o
240 UNEP, Leaflet from UNEP/GPA Coordination, ibid at 2.
-256 These endeavours indicate that some progress has been made towards implementation of the GPA through the UNEP regional seas program. This progress has seen in problem identification, planning of programs on land-based activities at regional and national levels, and in development of regulatory frameworks. With a few exceptions, land-based activities assessment relating to regional seas pollution have been prepared for most regional seas. The following two tables give an overview of the implementation status of the GPA, with reference to each regional seas program. The first table addresses the issues of problem identification and planning. It also provides information on the legal status of regional seas agreements. The second table addresses implementation and evaluation of regional programs. Needs for support and identification of opportunities to support the implementation of the GPA are also included as components of this table.
257 • TABLE 6.4: PROGRESS IN ADDRESSING LAND-BASED ACTIVITIES BY REGIONAL SEAS Please see print copy for image
Source: UNEP/GPA Coordination Office, Partiiers in Implementuig tiie GPA, Regional Seas, The Hague, The Netiierlands, Issue 1.1, October 1999 at 9.
-258 TABLE 6.5: STATUS OF REGIONAL/NATIONAL PROGRAMS ON LAND BASED ACTIVITIES IDENTIFICATION OF NEEDS AND OPPORTUNITIES
Please see print copy for image
Source: UNEP/GPA Coorduiation Office, Partiiers in Implementing tiie GPA, Regional Seas, The Hague, The Netiierlands, Issue 1.1, October 1999 at 10.
259 The above tables show that not all regional seas are covered by mtemational regulatory frameworks. Of the 16 regions, 11 have framework Conventions, but specific Protocols on LBSMP have been adopted in only five. Regional seas lacking an LBSMP control
Protocol include the West and Cenfral Afiican region, Eastem Afiican region, tiie Red
Sea and Gulf of Aden, and the South Pacific region. Not even a general framework convention has yet been adopted in the South Asian Seas region, East Asian Seas region. North West Pacific region. South East Atlantic region, the East Central Pacific region, and the Upper South West Atlantic. Because of the absence of regional conventions there is a httle evidence of political will to cooperate in carrying out the
action plans related to global program of action in these regions. Capacity building, pubhc awareness and infrastmctural projects and use of clean technology activities for
LBSMP are ongoing. They are, however, insufficient in most of the regional seas. Four regions do not have any infrastmctural projects. There is no sing of public awareness
and public participation in five of the regions. Four regions have no capacity to undertake LBSMP confrol measures. Use of clean technology is totally absent m five
regions. There is even no activity to contiol LBSMP m Eastem Afiica and Upper
South-West Atlantic regions. North-West Pacific and Upper South-West Atlantic
regions do not have any Secretariat to coordinate activities of LBSMP control.
6.6 CONCLUSION
This chapter has revealed that regional legal and institiitional frameworks for LBSMP confrol have come to play a significant global role. The non-UNEP regional level instiuments such as the OSPAR Convention and the Baltic Convention initially led the way forward. The UNEP regional seas program has extended regional arrangements for
LBSMP around the globe.
-260- In order to establish common controls within regions bordering enclosed and semi- enclosed seas, regional LBSMP agreements are most required. These agreements that have been adopted are not limited to enclosed or semi-enclosed seas however. Although the degree of stiictness varies these regional agreements have obhged Confractmg
Parties to take preventive measures to reduce accidents, and ensure monitoring and inspection by competent authorities to regulate the discharges to the coastal waters.
Taking in to account appropriate measures and techniques, greater emphasis has been placed on the control and elimination of all categories of LBSMP.
While acknowledging these advances in regional LBSMP control objectives as set out in legal instruments, there are some deficiencies in these regional agreements. With the exception of OSPAR Convention, Baltic Convention and 1996 Mediterranean Protocol these agreements lack from prescriptive and enforcement points of view. Intemational management principles are not duly undertaken in UNEP regional legal instruments.
The 1996 Mediterranean Protocol is the only UNEP regional legal agreement which includes precautionary principle and polluter pays principle in its text.
Although obligations to LBSMP confrol ui regional provisions are more specific, onerous and precautionary than those in either LOSC, or other intemational norms and agreements, these obhgations have not yet led to significant outcomes in terms of efficacious implementation. Specific plans and implementation of those plans usmg best available technology and the best envfronmental practice are quite msufficient m most of those regional agreements.
However, a few exceptions have been noted as significant developments have been achieved in some regions where developed countiies that are not in economic transition
-261- are the Parties, for example in the North East Atlantic region, or where developed and developing countiies or countiies in economic fransition jointly are the partners, m the
Mediterranean region for example. In undertaking action plans, organising conferences, adopting recommendations, declarations and specific protocols on LBSMP, those regions have achieved more than those where only developmg or fransitional economy countries are participants.
Although Protocols have been adopted in South-East Pacific, Persian Gulf and Black
Sea regions, nevertheless, they tend to lack unplementation mechanisms. Generally regional arrangements comprising only developing countries tend to lack specific operational measures, authoritative institutional arrangements, binding legal instruments or even management instmments such as Action Plans.
Studies in Chapter Five and in this chapter have revealed notional and mdimentary frameworks of collaboration and cooperation, but much more remains to be done. In most of the developing countries, LBSMP contiol is grossly neglected. As a case in point, the next chapter will examine LBSMP confrol m the Bay of Bengal Sub-region m
South Asia. It will be seen in Chapter Seven tiiat the specific case example of the Bay of Bengal Sub-region reinforces the cmcial need for sfrengthened cooperative arrangements for LBSMP confrol.
262 CHAPTER 7: LAND BASED MARINE POLLUTION CONTROL IN THE BAY OF BENGAL REGION : A CASE STUDY
7.1 INTRODUCTION
As noted m Chapter Six, there has been significant progress towards LBSMP control in
some areas, but in many parts of the world such confrol is still at a mdunentary stage. A
regulatory framework for marine pollution confrol in general has not been established m
many parts of the world oceans. Although Action Plans have been adopted under the
UNEP Regional Seas Program in some of these regions, specific programs for carrying
out those plans have not yet been established. Although substantial amounts of
pollutants enter these seas, no confrol mechanism has been established to protect these
seas from pollution. As a result pollutants, particularly from land-based sources, enter
the seas widely and openly and affect the regional marine envfronment. The Bay of
Bengal Sub-region in South Asia is one case example.
Chapter Seven is a case study to show the deficiencies of the South Asian Sub-region
m confrolling LBSMP without an applicable global regime. This chapter is also an
example of how the problems and issues identified in Chapter Three take effect in
practice to confrol LBSMP. The analysis of this chapter is also to be used to draw
lessons for improved regional sfrategies for LBSMP confrol.
The objective of this chapter is to identify the sfrengths, weaknesses and opportunities
for LBSMP contiol in the Bay of Bengal Sub-region m South Asia (hereinafter tiie Sub- region). The geographic scope of this case study covers the mtemal and territorial waters and tiie exclusive economic zone (EEZ) of Bangladesh and North-East fridia.
263 The methodology adopted in this chapter is based on an exammation of the application of intemational (Chapter Five) and regional (Chapter Six) arrangements, scmtinised against LBSMP management benchmarks (Chapter Four), to find whether and how
LBSMP control problems and associated issues (Chapter Three) axe addressed effectively in the Sub-region.
Chapter Seven commences with a discussion of marine environmental conditions in the Bay of Bengal Sub-region, and highlights the various types of organic compounds, insoluble inorganics, and the high levels of sediment loads from various sources discharged into the marine and coastal envfronment of the Sub-region. Regional approaches to LBSMP confrol in this Sub-region are then discussed. The Action Plan for South Asian Seas and the related Colombo Workshop are analysed and evaluated.
The chapter then moves on to consider national LBSMP control activities in this region.
Implementation of intemational instruments, national legislation, national pohcies and programs, marine environmental education and public participation are highhghted and evaluated in respect of this. Obstacles to the contiol of LBSMP are studied next. In this regard, issues relating to poverty, lack of adminisfrative capacity, economic disincentives and regional conflicts are focused on. In the hght of these obstacles, proposals for regional cooperation and partnership building for the purpose of mutually beneficial LBSMP confrol are mooted. The chapter ends on the note that a comprehensive global legal regime based on cooperative arrangements is requfred to promote and reinforce confrol of LBSMP of this Sub-region.
-264 7.2 ENVIRONMENTAL CONDITIONS OF THE BAY OF BENGAL REGION IN SOUTH ASIA
The Bay of Bengal (hereinafter the Bay) is one of the two northem embayments of the
Indian Ocean. It is flanked by the Indian peninsula and Sri Lanka in the west, and by
the Andaman and Nicobar Islands and Myanmar in the east.^ It is over 2 milhon km^ in
extent and acts as the recipient of the two mighty rivers of the Indian Sub-subcontinent,
the Ganges and the Brahamapufra.^
FIGURE 7.1: THE COUNTRIES OF BAY OF BENGAL REGION Please see print copy for image
Source: Hohngren DS, An Environmental Assessment of the Bay of Bengal, (published by tiie Bay of Bengal Program, Madras, for Swedish Centie for Coastal Development and Management of Aquatic Resources, (SWEDMAR), March, 1994) at 1.
Hohngren DS, An Environmental Assessment of the Bay of Bengal, (published by tiie Bay of Bengal
Program, Madias, for Swedish Centie for Coastal Development and Management of Aquatic
Resources, (SWEDMAR), March, 1994), at 134.
IbidsxnA.
-265- The countries of the Bay of Bengal Sub-region in South Asia are Bangladesh, India,
Maldives, and Sri Lanka. They are all developing countries with large populations.^
This region is prone to natural disasters, including storm surges created by storm- induced flooding and high tides.4 Bfrth rates are generally high here.5 Many of the people in these countiies hve close to the sea and make thefr living from the sea-waters and adjoining coasts. For example Bangladesh, situated at the apex of the Bay of
Bengal, has a vast coastal plain of more than 36,400 sq km, and a 710 km coastline which extends from the mouth of the Naaf River in the south to the mouth of Raimangal
About one quarter of the world's population reside in littoral coimtries of the Bay of Bengal,
approximately 400 million of whom live in the Bay's catchment area, and an average of 65% of the
region's urban population lives in large coast cities (Global Envtionment Factiity, Proposal for the
Project Development and Preparation Facility, Project entitled Preparation of a Trans-boundary
Diagnostic Analysis and Preliminary Framework Stiategic Action Program for the Bay of Bengal
Large Marine Ecosystem, 1999, at 1).
For example some of the world's most disasttous floods have occurred in tiie Bay of Bengal area,
especially along tiie low-lying delta areas of Bangladesh. [Indian Ocean Marine Affairs Co
operation, Applications of Satellite Remote Sensing Over tiie Indian Ocean, (Manual Prepared by
the Organization for Indian Ocean Marine Affairs Co-operation (lOMAC), 1978] at 46. In tiie Bay
of Bengal, tiopical cyclones usually form over tiie soutiiem end during April-December and then
move to tiie East coast of India and Bangladesh, causing severe flooding and, often, tidal surges.
(Global Enviromnental Outiook (GEO): Chapter 2: Regional Perspectives: Asia and flie Pacific:
Underlying Causes, [Online], Avatiable URL: http://grid2.cr.usgs.gov/geol/ch/ch2 6.htiii
(Accessed 5 October 1999).
For example in Bangladesh tiie birth rate is 28.89 bulhs/1000 population (1998 est.), Bangladesh
[Ontine], Avatiable URL: htfp://www.odci.gov/cia/T^ubncations/factbook/bg.htirti, (Accessed 28
August 1999) and in India tiie birtii rate is 25.94 births/1000 population (1996 est.) (SAARC -
Profile-of-SAARC-Member-State, [Onluie], AvailableURL: http://wu'^-.saarc.com/spindia.html,
(Accessed 2 September, 1999).
-266- River along the frido-Bangladesh border in the west.6 The population of Bangladesh's
coastal districts in Chittagong, Noakhali, Barisal, Potiiakhah and Khuba is about 24
million, about 23% of the total population of Bangladesh.^
Khan YSA and Hossain S, 'Impact of Shrimp Culture on the Coastal Environment of Bangladesh',
International Journal of Ecology and Environmental Sciences, 1996, Vol 22 at 145.
^ Khan YSA and Talukder ABMA, 'Pollution m Coastal Waters of Bangladesh', The Journal of
NO AMI, June 1993, Vol 10, No 1 at 1).
-267- FIGURE 7.2: RIVER SYSTEMS OF BANGLADESH Please see print copy for image
Source: Holmgren DS, An Environmental Assessment of the Bay of Bengal, (pubhshed by tiie Bay of Bengal Program, Madras, for Swedish Centie for Coastal Development and Management of Aquatic Resources, (SWEDMAR), March, 1994) at 80.
-268 From time immemorial, coastal waters of this Sub-region have been used for hunting, and harvesting marine resources. In present times, coastal activities have extended, inter alia, to petroleum exploitation, fuel storage and energy generation, industrial and commercial development, ship breaking operations and waste dumps. These activities have resulted in contamination of coastal waters and have caused marine pollution. For
example, the Hugh Estuary in West Bengal is probably the most polluted estuary in the
world, as there are 96 major factories from Nabadwip Inland to the bar mouth, which
discharge almost half a billion litres of untreated wastes a day.^
This has occurred due to the neghgible attention to limiting this untreated discharge.
No specific program for monitoring and data collection has been undertaken, nor has
adequate coastal zone legislation on regulating land use been adopted in this Sub-
region. The fate and effect of pollutants have not been studied due to tiie absence of a
coherent admmisfrative system.^ fri the absence of tiiese mechanisms on marine
poUution confrol, the coastal areas in this Sub-region are deterioratmg severely. The
Bay of Bengal (BOB) in this northem Sub-region, has virtually tumed into a waste
dump.
8 Holmgren DS, An Enviromnental Assessment of tiie Bay of Bengal Region, supra note 1 at 4.
9 See section 7.5.2 of titis chapter, infra.
-269- FIGURE 7.3: BAY OF BENGAL Please see print copy for image
Source- Cited in Holmgren DS, An Environmental Assessment of the Bay of Bengal Region (pubhshed by tiie Bay of Bengal Program, Madras, for Swedish Centie for Coastal Development and Management of Aquatic Resources, (SWEDMAR), March, 1994 at 151.
Factories located in the coastal belt of this region mainly process or produce agricultural products; food and beverages; pubhcations; packaging; leather and mbber; medicine
270 and chemicals; glass, ceramics and non-metals; and textiles. 1° These industries are infroducmg various types of insoluble inorganic substances such as heavy metals, including lead, mercury and chromium, to the marine and coastal envfronment.''
TABLE 7.1: ESTIMATED AMOUNT OF INSOLUBLE INORGANICS ENTERING THE WATER IN BANGLADESH Please see print copy for image
Source: Department of Environment, Bangladesh, cited ia ESCAP, 1988 and tii Khan YSA and Talukder ABMA, 'Pollution ui Coastal Waters of Bangladesh', The Journal of NO AMI, 1993, Vol 10, No 1 at 5.
10 Nirbachita Shilpa Directory, Govemment of Bangladesh, Du-ectorate of Industiies, 1988, cited in
Khan YSA and Talukder ABMA, 'Pollution in Coastal Waters of Bangladesh', supra note 7 at 3.
11 These substances also reach coastal waters fi-om natiual and otiier antiiropogenic sources; natiural
sources such as weatiiering rocks and volcanic emptions and antiuopogenic sources such as muting,
industiy, dumping of wastes, bmning of fossti ftiel.
-271- TABLE 7.2: HEAVY METALS IN SEDIMENTS OF SOME ESTUARIES OF THE INDIAN EAST COAST AND IN THE BAY OF BENGAL (IN PPM) Please see print copy for image
Source: Cited in Holmgren D S, An Environmental Assessment of the Bay of Bengal Region at 138.
The Bay of Bengal is also the recipient of large inflows of freshwater and sediments
from some prominent river systems. Among these the Ganges, Brahmaputra, Meghna,
and ISlahanadi influence the ecosystem of the coastal area and lead to the concentration
of pollutants m the Bay.'^ Sedimentation'^ is also therefore one of the main factors
contiibuting to downsfream flooding in this region. It has been widely quoted that tiiese
rivers alone, whose combined flood level water can exceed 140,000 m3/ second, carry
1.5 to 2.4 billion tonnes of sedunents. About two-thirds of these sediments enter the
Bay. Sedunents, therefore, have become a dominant featiire in the geomorphologic
12 Global Envtionment Facitity, Proposal for tiie Project Development and Preparation Facility, supra
note 3 at 1.
13 Sedimentation is mautiy caused by unsound agriculttiral and forestty practices, tiie mismanagement
of watersheds, earth-moving for onshore infi-asttuctiire projects, tiie unconttoUed dumpuig of
terrestiial muting spoils and effluents, and submarine degrading and mining operations. Jafaar AB
and Valencia MJ, Marine Pollution: National Responses and Transnational Issues, ui Kent G and
Valencia MJ, (eds). Marine Policy in South East Asia, (University of CaUforma Press, Los Angeles,
1985) at 270. The sediment loading m tiie Ganga-Brahmaputia watershed is mainly caused by
accelerated sod erosion.
- 272 - dynamics of the coastal areas of Bangladesh'^ and eastem India. The followmg table is illusfrative.
TABLE 7. 3: TOTAL SUSPENDED AND CHEMICAL LOAD ENTERING THE BAY OF BENGAL FROM SIX MAJOR INDIAN RIVERS Please see print copy for image
Source: Cited m Holmgren DS, j\ n Environmenta Assessment of th i Bay of Bengal Region, at 134.
TABLE 7.4: HEAVY METAL COMPOSITION OF THE SEDIMENTS OF THE GANGA AND HUGLI
VALUES IN PARTS PER MILLION (PPM) Please see print copy for image
Source: Ibid at 150.
1"^ Rahman AA, 'Bangladesh Coastal Environment and Management', Coastal Area Resource
Development and Management, 1989 at 1.
-273 These statistics indicate that the shallow waters of the Bay receive significant amounts of pollutants from river sedunent loads. In 1997, UNEP's Report of the Workshop on
Implementation of the Global Program of Action for the Protection of the Marine
Environment from Land-based Activities in the South Asian Region (hereinafter
Colombo Workshop) identified this as a major problem in the Sub-region. In addition to other adverse effects, these pollutants dismpt the functioning of the coastal ecosystem, damage fish spawning and nursery areas, and cause fish kills.'^
7.2.1 Analysis of Activities Causing LBSMP in the Bay of Bengal
Marine and coastal waters in the BOB Sub-region receive a large amount of pollutants
from land, including domestic and industrial wastes, agricultural run-off, and river
discharges.'6 IVIost of the cities in the region lack adequate sewage freatment'"' and in
1^ UNEP, Report of the Workshop on Implementation of the Global Program of Action for the
Protection of the Marine Environment from Land-based Activities in the South Asian Region, (the
Colombo Workshop). UNEP (WATER)/GPA/SAS/RW.5, Colombo, Srilanka, 20-23 October,
1997.
1^ Asian Development Bank, Asian Development Outlook, (Asian Development Bank, 1991) at 221-
22.
1^ For example, wastes witiiout any treatinent, are directly discharged into tiie waters of tiie densely
populated coastal regions. (Hohngren DS, An Envtionmental Assessment of tiie Bay of Bengal
Region, supra note 1 at 7). At an optimistic estimate, no more tiian 50 percent of tiie total
population in the countiies borderuig tiie Indian Ocean are provided witii adequate sanitation
arrangements. (UNEP, Environmental Problems of tiie Soutii Asian Seas Region: An Overview,
UNEP Regional Seas Reports and Studies No 82, 1987 at 8).
274 most cases have no sewage freatment systems at all's Persistent, bioaccumulative and toxic synthetic chemicals, uicluding dichlorodiphenyl tiichloroetiiane (DDT), polychlorinated biphenyls (PCBs), dieldrin, endrin, benzene hexachloride, and similar products are widely used in this region for agricultiiral, industiial and pubhc healtii purposes. These pollutants reach the sea water either through rivers or via tiie atmosphere.'^ The Colombo Workshop identified the principal LBSIVIP m these regions as pollutants from agricultural chemicals, and also non-agricultural chemicals present in sewage and industrial activities.20
1° Only 4 percent of India's population is served by a sewage system. (Asian Development Bank, ibid
at 222). The townships and human settlements of Bangladesh do not have any domestic tteatment
facilities, and the effluents, either directly or indirectly, find their way into the water bodies.
Unplanned growth with lack of proper waste disposal systems fiirther aggravates the problem. No
surveys have so far been made of the quantity of either domestic effluents or solid wastes (UNEP
(1987), ibid at 8). Huge quantities of untieated wastes find their way through open drains, canals
and rivers into the Bay of Bengal. (Holmgren DS, supra note 1 at 4). For example, the domestic
waste load in the Khulna and Mongla areas was estimated to be approximately 2.2 tons BOD/day
and these wastes enter the river Pussur and hence find theu: way into the Bay of Bengal. (7). In the
same way domestic waste is entering tiie Bay of Bengal from Dhaka and Chittagong via Buriganga
and KamafiiUy rivers respectively. (Khan YSA and Talukder ABMA, 'Pollution in Coastal Waters
of Bangladesh', supra note 7 at 6-7).
1^ For example, it is estimated that ui Delhi, 5 ntillion gaUons of water contauiing DDT wastes are
dumped uito tiie River Jamuna datiy (Asian Development Bank, 1991, supra note 15 at 222-23).
20 See UNEP, Report of tiie Workshop on Implementation of tiie Global Program of Action for tiie
Protection of tiie Marine Envtionment from Land-based Activities ui tiie Soutii Asian Region, supra
note 15 at 22-29.
-275- 7.2.1 (a) Pollutants from Agricultural Chemicals
Fertilisers and pesticides are quite abundantly used in this region2i and are dumped or washed away by ram and water into the river systems, and ultmiately into tiie sea. fr is assumed that 25% of tiie total amount of pesticides used may reach tiie coastal water and cause pollution of sea water.22 The following table provides an estunated amount of pesticides and other persistent organic chemicals used in agriculture m Bangladesh. It also indicates the probable pollution load in sea water from these sources.
TABLE 7. 5: POLLUTANTS FROM AGRICULTURAL CHEMICALS Please see print copy for image
Source: ESCAP, Coastal Management Plan for Bangladesh, \o\ 2, Bangkok, Thailand (1988). Cited in Khan YSA and Talukder ABMA, 'Pollution in Coastal Waters of Bangladesh', The Joumal ofNOAMI, June 1993, Vol 10, No 1 at 8.
In addition to pollution from agricultural chemicals, sea-based commercial activities like shrimp farmmg contribute to LBSIVIP. Shrimp farming uses large amounts of pesticides and artificial feed. Uneaten and deposited food particles are nutrients infroduced into the sea through canals and rivers.23 In shrimp processing mdustries huge amounts of solid and liquid waste are discharged into the water body and cause
21 UNEP (1987), supra note 17 at 12.
22 Khan YSA and Talukder ABMA, 'Pollution in Coastal Waters of Bangladesh', supra note 7 at 8.
23 Khan YSA and Hossaui S, 'Impact of Shrtinp Culttue on tiie Coastal Environment of Bangladesh',
supra note 6 at 156. -276- marine pollution. In 1992-93, about 11,400 metiic tons of discarded shrimp heads and other wastes were throvm into the marine water.24 Accorduig to a govemment report, m the 1994-95 fiscal year alone, 2,528 metric tonnes of wastes were dumped from shrimp processmg units into the Bay of Bengal via the Kamafully River.25
7.2.1 (b) Industrial pollutants (Non-agricultural)
Pollutants from industrial activities originate mainly from food and beverage
processing, commercial fertilizers, textile manufacturing, paper industries, tanneries,
and sugar refineries.^^ Industries situated in the coastal area represent 27.6% of the total
industries of Bangladesh. Nearly 150 industrial units located on the bank of
Kamapfully River alone discharge huge amounts of pollutants mto the Sea.27 Effluents
from these industries reach the sea-water without treatment.^^
24 Khan YSA and Hossain S, ibid at 157.
25 The Daily Star, Editorial, Bay of Bengal Under Thereat, [Onluie], Available URL:
http://www.dailvstamews.eom/1999Q9/27/n9Q92702.htin#BODY. (Accessed 29 September 1999) at
2. Kamafiilly is an unportant river of Chittagong, and origuiates in the lofty ranges of Lusai Hills of
Asam in India and enters Bangladesh from the North-east.
26 Holmgren DS, An Envtionmental Assessment of tiie Bay of Bengal Region, March, supra note 1 at
92.
27 Editorial, Bay of Bengal Under Thereat, The Daily Star [Online], Available
httD://www.dai1v.stamews.com/199909/27/nQn92702.htin#BODY2 (Accessed 29 September 1999).
28 For example, a billion lities per day of mostiy untieated sewage enters the Ganga from point
sources, such as tanning factories, incomplete cremations and livestock carcasses.
(Harake M El, 'The Futiu-e of Calcutta Sewage: Waste Yes, Want Not', [Online], Avatiable URL:
http://darwin.bio.uci.edU/~sustaui/susf:nasts/meUiarake.html. (Accessed October 5, 1999).
-277- Unfreated effluents discharged directly or indfrectiy into water bodies also finally find thefr way mto the Bay of Bengal.29 The following categories of industries are responsible for discharging unfreated effluents into the sea-waters in this region.
TABLE 7. 6: INDUSTRIAL POLLUTANTS, NON-AGRICULTURAL Please see print copy for image
Source: Hohngren D S, An Environmental Assessment of the Bay of Bengal Region, (published by tiie Bay of Bengal Program, Madras, for tiie Swedish Centie for Coastal Development and Management of Aquatic Resources, (SWEDMAR), March, 1994) at 92. hi addition, pollutants released from elecfronics, plastics, and petrochemical and mining industiies seriously affect the marine environment. In tiie city of Dhaka, (Bangladesh) 7 to 7.5 million polythene bags are produced by plastics factories daily and, after use, these plastic bags are usually discarded indiscriminately, hi otiier Bangladeshi cities like Khuhia and Chittagong, plastic bags and otiier plastic products are dumped in the
29 Khan YSA and Talukder ABMA, 'Pollution ui Coastal Waters of Bangladesh', supra note 7 at 3-4.
It is to be noted tiiat most of tiiese industiies tii Bangladesh are concentiated in tiu-ee urban areas:
Dhaka, Chittagong and Khuhia.
278- Chittagong and Mongla port areas, thereby polluting the marine environment.^o Besides plastic bags, other plastic products such as bottles, bowls, ropes, nets, PVC, packaging items, disposable injection syringes and other items are also widely used in Bangladesh.
These are not properly recycled, and find thefr ways through rivers and dramage systems, into sea-water.^' These LBSMP demand national and regional responses.
7.3 REGIONAL APPROACHES TO LBSMP CONTROL IN THE BAY OF BENGAL
It was noted in Chapter Six that regional approach is usefiil for LBSMP confroP^ and that the UNEP regional seas program (RSP) was formulated partly to enhance controls on LBSIVIP. The RSP aimed at enabling countries of a given region to meet and formulate common commitments under a Regional Action Plan (RAP) adopted by them. The adoption of the Action Plan for the South Asian Seas is an example.
7.3.1 South Asian Seas Action Plan
The Goveming Council of the UNEP took the mitiative for the adoption of the South
Asian Seas (hereinafter SAS) Action Plan eight years after the formation of UNEP's
RSP. In May 1982, the Goveming Council adopted Decision 10/20. This Decision requested the Executive Dfrector of the UNEP to enter into consuhations with the concemed States of the South Asia Co-operative Environment Program (SACEP) to ascertain their views regarding development of the RSP in the SAS region. The States consulted agreed and those now mvolved m the SAS cooperative program are
^0 Khan YSA and Talukder ABMA, 'Pollution ui Coastal Waters of Bangladesh', supra note 7 at 9.
31 Hohngren D S, An Envu-onmental Assessment of tiie Bay of Bengal, supra note 1 at 107.
22 Regional Approach has been defined ui Chapter 6.1 supra.
-279- Bangladesh, India, Maldives, Pakistan, and Sri Lanka. Regional reports on the state of
the marine environment were completed in 1985 and 1987, to be followed by an Action
Plan.33 The Action Plan for the Protection and Management of the Marine and Coastal
Environment of the South Asian Seas Region was at last formally adopted on 24*^
March, 1995, under the auspices of the UNEP.34 The members of ttie Action Plan are
the same as for the SACEP.
This Action Plan was designed to develop financial and institutional mechanisms for the
protection of the marine and coastal environment from different activities, including
LBSIVIP. The Action Plan identified four priority areas. These included integrated
coastal zone management (ICZM) and protection of the marine envfronment from land-
based activities.35 Resolutions were adopted for the smooth implementation of this
Plan. The existing regional inter-govemmental organisation, the SACEP, located in
Colombo, Sri Lanka, was made responsible for facilitating the unplementation of the
Action Plan by organising inter-govemmental meetings of the member States; it was
also given responsibility for administering the Action Plan. This Action Plan is now
also supported by the Global Environment Facility (GEF), the World Bank's South Asia
Development Triangle Initiative (SADTI), the Asian Development Bank (ADB), the
United Nations Development Programme (UNDP), and various NGOs.
33 UNEP, (1987), supra note 17 at 1-2.
34 UNEP, (1987), jfeic/at 1-2.
35 Annex IV, Statiis of tiie Soutii Asian Regional Seas Program, Colombo Workshop, supra note 15 at
19.
-280- While the SAS Action Plan is an important positive development for regional confrol of land-based activities, including review of national and regional problems and ICZM,^^ it is to be noted that this regime formation process has been very slow. This indicates that
concemed States of this region were not ready to commit to the adoption of a
cooperative regime. There was significant lack of political will to facilitate the
consultation process for the adoption of this Action Plan, and a legally binding general
framework convention has still not been adopted. Although the Action Plan purports to
address LBSMP, its program activities for LBSMP control are minimal. The reason
seems to be that national actors and governments considered LBSIVIP control issue a
low priority. Accordingly, there is no legally binding regional instrument specific to
LBSMP confrol.
In addition to bottom-up regional approaches for LBSIVLP control, there are global
programs with regional apphcations. The most noteworthy is tiie Global Programme of
Action for the Protection of the Marine Environment from Land-based Sources (the
GPA) 1995.37 The GPA seeks to improve the South Asian Seas LBSJVtP situation by
assisting implementation of the South Asian Seas RAP.38 To facilitate this, a series of
GPA regional technical workshops was convened m various regions. The GPA
Coordination Office in The Hague conducted seven regional workshops, fri cooperation
witii governments, to consider information on land-based activities. These workshops
drafted priority action programs to reduce and control LBSMP, identified problems and
36 UNEP, Institiitional Arrangements for Implementation of the Global Program of Action for the
• Protection of the Marine Environment from Land-based Activities, (UNEP/GC.19/INF.4, 8
November 1996) at 48.
37 UNEP (OCA)/LBA/IG.2/7.
3S See Chapter 5.4.4, supra. -281- barriers to LBSIVIP confrol, and remedial measures to be undertaken by States and governments, and also considered ways to sfrengthen regional cooperation.39 As a part of this, Colombo Workshop was organised for South Asian Seas Region.
7.3.2 Colombo Workshop on LBSIVIP
To give effect to the South Asian Seas GPA in the region, as well as to tiie existmg
regional Action Plan, a regional workshop on LBSIVIP was held in Colombo, 22-25
October 1997. It was attended by representatives of five governments (India, Maldives,
Nepal, Pakistan and Sri Lanka), two United Nations agencies (WHO and IAEA), one
UN Inter-Agency program (GCRMN) and one regional non-governmental organisation
(lOI-India),'^'^ as well as two representatives from UNEP's Asia Pacific Regional Office
in Bangkok and UNEP's Water Branch in Nairobi respectively. SACEP acted as the
Secretariat for the Workshop.'^' The Colombo Workshop deliberated on the following
documents:
• a Draft Overview on Land-based Sources and Activities Affecting the Marine,
Coastal and Associated Freshwater Envfronment m the SAS Region;'*^
• the Draft Regional Program of Action for the Protection of the Marine, Coastal and
Associated Freshwater Environment from Land-based Activities in the SAS;^3 and
3" See Chapter 6.5, supra.
^^ GCRMN and lOI stand for Global Coral Reef Monitoring Network and hitemational Ocean
Institute Operational Centie (India) respectively.
41 Colombo Workshop, supra note 15 at 2.
42 UNEP(WATER)/GPA/SAS/RW.5/3.
-282- • fristitiitional Arrangements, Activities, Financial Considerations and Tunetable for
Implementation of a Regional Program of Action for the Protection of the Marine
Envfronment from Land-based Activities in the SAS.^^
The Colombo Workshop suggested that the Draft Overview on LBSMP and the Draft
Regional Program of Action, inadequately reflected the root causes of tiie problems of
LBSMP, which increasingly affected the marine and coastal envfronment of the region.
Moreover, the Drafts were not based on reliable scientific data and information, and
therefore questions remauied in relation to appropriate effective measures for LBSMP
control. Given this situation, participants at the workshop agreed that tiie Draft
Overview and the Regional Program of Action would be revised by UNEP consultants
on the basis of the necessary information, data and materials being provided by tiie
member countries of SACEP.'*^
Although comparatively little research has been done on LBSMP in the SAS, LBSMP
related problems were identified in national overviews under the GPA as a major threat
to the marine environment. In order to effectively protect the marine environment from
LBS, the participants of the Colombo Workshop gave special-attention to the needs for,
inter alia:
(a) an integrated approach in the development of national action programs;
(b) placing national action programs in the framework of existing or evolving
national environmental and development programs, sfrategies and policies;
43 UNEP(WATER)/GPA/SAS/RW.5/5
44 UNEP/GC.19/INF.4
The Colombo Workshop, supra note 15 at 4-6.
-283- (c) Sub-regional, regional and global cooperation in implementation of national
action programs, including cooperation with regional economic groups,
relevant regional and intemational organisations, development banks, with
existing regional bodies, authorities and programs (e.g., river basins authorities
and commissions, programs operated under regional seas conventions and
action plans); and
(d) development of options for representation of non governmental organisations and private sector from the region to contribute to the development and implementation of national and regional action programs.^^
The GPA Regional Technical Workshops on LBSIVIP have stimulated land-based sources action at the regional level. The Colombo Workshop identified some important issues and made recommendations to implement the GPA in the SAS region. However, actual operational activities that could implement these recommendations are still ahnost the same as before the recommendations were made. No notable developments have resulted from the Colombo Workshop on LBSIVIP control, fri response to the
Colombo Workshop, SACEP and UNEP have been working towards tiie preparation of the Regional Overview, the regional program of action and the national programs of action. These were expected to be finahsed by the end of 1999 or the beginning of
2000. However, none of these documents has yet been finalised. This slow pace of the process raises questions as to the effective involvement of States in the confrol of
LBSMP in this region. It does not encourage a behef that LBSMP confrol in this region is strongly, or rapidly, moving from its current condition.
46 The Colombo Workshop, ibid at 2.
-284- 7.3.3 Bay of Bengal Program
The Bay of Bengal Program (BOBP) is a regional fisheries project under the auspices of the Food and Agricultural Organization (FAO) that became operational in 1979. In its first two phases, the BOBP aimed to improve Sub-regional socio-economic conditions through the use of new and innovative fishing techniques. The thfrd phase of this project began to directly address the serious management problems facing the Bay's fisheries.^^ Among other approaches, it included ICZM, awareness raising and educational activities.
A proposal was made to develop a strategic action program (SAP) to enhance national and regional efforts under the BOBP to protect the health of the ecosystem and manage the living resources of the Bay of Bengal large marine ecosystem on a sustainable basis.'*^ As a basis for the development of the SAP, some important marine environmental issues such as ecological and environmental analysis, systematic harmonised data collection, and identification of opportunities (pohcy, institutional, technological, economic and legal options) and priority actions were considered.'*^ The
SAP emphasised linkages between management of living resources and pollution, and regional cooperation. To effectively manage these issues it proposed a number of activities, including establishment of national task forces to guide the preparation of the national reports, regional thematic papers on critical issues, regional and national
4*7 Global Environment Facility, Proposal for tiie Project Development and Preparation Facihty, supra
note 3 at 5.
4S Global Environment Facility, ibid at 6.
4^ Global Environment Facility, ibid at 6.
-285- workshops and regional study on legal and legislative frameworks and opportunities for cooperation. Extensive consultation with a wide range of govemment and non government organisations mvolved in the marine and coastal envfronment and strengthening coUaboration were proposed to implement the SAP.^o
The BOBP initially relied on support from the countries concemed, bilateral donor countries and the FAO. The advisory committee of the BOBP at its 19* meeting urged the FAO Secretariat to prepare a proposal and explore GEF as a possible fimding source. This suggestion was endorsed by the Bay of Bengal Committee (BOBC).^'
Since then, the GEF has been supporting efforts to reduce coastal management problems in the Bay of Bengal, including fisheries management. For example, the GEF has
fimded an 'Aquatic Resources Development, Management and Conservation of
Fisheries Project' in Bangladesh. It commenced work ui October 2001, auning to
sustam growth in both inland and coastal fisheries through a number of interventions
including extension training and improvement of coastal shrimp culture.52
The aim of the BOBP was to assist countries of this Sub-region to meet their obhgations
to manage and protect the marine and coastal environment. Although it was not dfrectiy
related to LBSIVIP control it is particularly relevant to the broader aims of the Soutii
Asian Seas Action Plan. However, it also includes activities directiy related to the GPA,
such as ICZM, and is therefore also dfrectiy relevant to LBSIVIP control.
^^ Global Environment Facility, ibid at 7-11.
51 Ibid at 13.
52 PDO-ICZM, Coast News, Issue No 4, Dhaka, October-December 2001 at 4.
-286- hi conclusion, there are Sub-regional, regional and global initiatives on marine environmental protection. For the most part, they are not directly focused on LBSIVIP confrol, nor are the follow up of the Colombo Workshop. Notwithstanding this, these initiatives are relevant for discussion here because they contribute to LBSMP confrol.
However, intemational management principles are grossly unused for the management of LBSMP in this Sub-region.53 Sustainable use of marine resources is very rare. In particular, the application of precautionary principle, polluter pays principle and cleaner production is totally absent. Objectives of those initiatives remain mostly imimplemented, as no mechanism has been set up for their implementation.
7.4 NATIONAL ACTIVITIES ON MARINE ENVIRONMENTAL ISSUES IN THE BAY OF BENGAL REGION IN SOUTH ASIA
National initiatives undertaken by India and Bangladesh are generally related to tiie overall protection of the marine environmental protection ratiier than LBSMP control specifically. However, in some cases, exphcitiy or implicitly, tiiese activities promote
LBSMP control. Those activities are surveyed here, organised into the following categories:
• Intemational instrument commitments
• National legislation
• National policies and programs
• Marine environmental education
• Public participation
53 See Chapter 4 supra. -287- 7.4.1 International instrument commitments
India and Bangladesh participate in some intemational hard and soft law arrangements related to marine environmental protection. These arrangements are embodied on instruments entailing legal and political commitments to confrol LBSMP, usmg the best practicable means at thefr disposal and in accordance with their capabilities.^4 The list of these hard and soft law instmments is as follows:
TABLE 7.7: SIGNATORIES TO INTERNATIONAL INSTRUMENTS RELATED TO LBSMP CONTROL BY THE COUNTRIES WITHIN THE BAY OF BENGAL SUB-REGION
Treaty Ratification United Nations Convention on the Law of the Sea 1982 (ratified by India on 29 June 1995, Bangladesh 27 July 2001, Sri Lanka 19 July 1994, and Maldives 7 September 2000)
Soft Law Adoption Urtited Nations Conference on the Human Environment (the Stockhohn Declaration) 1972
Montieal Guidelines on the Protection on the Protection of the Marine Environment from Land- based Sources (the Montteal Guidelines) 1985
Rio Declaration and Agenda 21 (Chapter 17) of the United Nations Conference on the Environment and Development (UNCED) 1992
Washington Declaration and Global Programme of Action for the Protection of the Marine Environment fi-omLand-base d Sources (the GPA) 1995
7.4.2 National Legislation
Legislation directly or mdirectly related to marine and coastal environment protection from pollution is to be found in both India and Bangladesh. In Bangladesh, tius
54 See Chapter 5, supra.
288- legislation includes the Territorial Waters and Maritime Zone Act 1974,^^ Territorial
Waters and Maritime Zones Rules 1977,^^ Environmental Pollution Control Ordinance
1977,5'^ Pesticides Ordinance 1971,^8 Environment Protection Act (EPA) 1995,^9 the
Environmental Conservation Rules, including the water Quality Standards (WQS),^° the
55 The Territorial Waters and Maritime Zone Act 1974 auns to prevent and conttol marine pollution
and also to preserve the quality and ecological balance in the marine environment in the high seas
adjacent to territorial waters (section 8).
56 The Territorial Waters and Maritime Zones Rules 1977 makes provision agamst serious marine
pollution infringements (section 3(g)) and any contiavention of mles is purtishable by imprisomnent
of up to one year and a fine up to 5000 Taka (section 10).
57 The Environmental Pollution Control Ordinance 1977 is intended to regulate industrial and
domestic waste water discharges.
58 The Pesticides Ordinance, 1971 as amended by tiie Agricultural Pesticides (Amendment) Act 1980
and tiie Agricultiual Pesticides (Amendment) Orduiance 1983, makes provisions for tiie regulation
of unport, manufactiire, formation, sale, distiibution and use of pesticides (Orduiance No H of
1971).
59 The Environment Protection Act (EPA) 1995 was enacted 'to provide for conservation,
unprovement of environment standards and to conttol and mitigate tiie pollution of flie
environment' (preamble).
60 The Department of Envtionment (DOE), wititin tiie Ministiy of Envtionment and Forest (MOEF),
Bangladesh, is tiie prunary uistitiition for managuig, settuig and enforcement of tiie envtionmental
regulations.
DOE formulated tiiese mles under flie mle makuig powers of tiie EPA. These mles describe
environmental quality standards, procedures ui preparing EIA and procedures to be followed for
obtamuig enviromnental clearance from tiie DOE. Section 12 of tiie EPA provides that no industtial
unit or project shaU be established or adopted witiiout obtaining envtionmental clearance ui tiie
manner prescribed by the mles of 1997.
-289 Envfronmental Impact Assessment (EIA) Guidelines for Industiies 1997,^' and the
Environment Court Act 1999.^2 In India, legislation includes the Water (Prevention and
Control of Pollution) Act 1974,63 the Water (Prevention and Confrol of Pollution) Cess
Act 1977,64 the Environmental Protection Act 1986 (EPA 1986)^5 and the Coastal Zone
Management Act. ^^
61 The DOE issues the EIA Guidelines. Despite its title, the EIA Guidelines for industries cover
significant water sector interventions, including water supply and sewage tteatment.
62 This Act designates the DOE as the body responsible for defining and enforcing the EIA procedures
outUned in the EIA mles 1997.
63 According to the Water Act 1974 pollution conttol boards are responsible for setting out
environmental standards and coordination and implementation of envtionmental laws. They can ask
any person or industry to provide details of effluent discharged or of the installation and operation
of pollution conttol equipment. Non-compliance witii Board uistmctions is punishable by
imprisonment of up to three months and a fine of up to 10,000 Rupees. If non-comphance contuiues
beyond a period of one year after tiie date of conviction, flie fme may be raised and unprisonment
increased to from 2 to 7 years, and in certaui cases polluting factories can be closed down.
64 The Water Cess Act 1977 made provisions for water assessment by certaui uidustiies and local
autiiorities tii order to uicrease tiie resources of centtal and State pollution conttol boards for flie
prevention and conttol of water pollution.
65 The EPA 1986 serves as a suigle piece of envu-onmental legislation for tiie protection and
unprovement of all envu-onmental resources. In titis context tiie Act empowers tiie cential
govemment to take all such measures it deems necessary for tiie protection and unprovement of tiie
quality of tiie envtionment. This uicludes pollution abatement measures and settuig down standards
for flie emission of environmental pollutants from different sources (For detatis see generally Murty
MN, 'Environmental Regulation in tiie Developuig Worid: Tlie Case of India' Environmental
Regulation in India, 1995, Vol 4, No 4 at 331-332).
66 The Coastal Zone Management Act provides a framework for coastal zone management.
-290 These legislative frameworks in Bangladesh and India are not directly related to
LBSMP control. They do, however, encompass issues of coastal area management including LBSMP control.
In general, legal frameworks for pollution confrol and envfronmental management exist.
However, questions remain as to their implementation, due to madequate legal provisions and institutional weaknesses.^^ For example, the EIA process is not fiilly operative fri Bangladesh. EIA Guidelines are formulated m relation to water resources development projects, but the law (the EPA) which empowers tiie unplementation of
EIA entails discretionary rather than mandatory provisions. Due to tiie lack of
institiitional requirements, EIA guidelines are not being adequately enforced against
polluters. In most cases the services of the DOE remains limited to issuing toothless
cautionary notices.^s This inadequacy of regulatory measures for envfronmental
protection has become the issue of public concem and protest m the Sub-region. The
Mehta Case in India, about the government's failure to enforce laws for effluent conttol
from tanneries is notable in this context.69 More stringent regulatory measures on EIA to
control marine pollution are required.
67 Institutional weaknesses are discussed ui section 7.5.2 infra.
68 Habib E, Management of Fisheries, Coastal Resources and the Coastal Environment in Bangladesh,
(Published by tiie Intemational Centie for Livuig Aquatic Resources Management, Manila,
Philippines, 1999) at 95. The DOE, Bangladesh, is tiie pnmary institiition for managuig, settuig and
enforcement of the envtionmental regulations.
69 See section 7.4.5 of tiiis Chapter infra.
-291- 7.4.3 National Policies
In order to reduce the pollution load on the river systems, the Mmistty of Envfronment
and Forests of the Govemment of India has formulated an Action Plan for tiie
Prevention of Pollution of the Ganga (Ganga Action Plan), and the National Action Plan
for cleaning of major rivers. In hne with this Central Govemment initiative. State
Governments in India have formulated various pohcies for the protection of the water pollution.
In 1992, the Govemment of Bangladesh formulated the National Environment Policy
(NEP). The NEP includes within its scope the protection of marine and coastal areas
from all domestic and foreign activities causing pollution, and provisions for
sfrengthening research to preserve and develop coastal and marine environment and
resources.'^o The NEP also emphasises the need for the ratification of relevant
intemational conventions.''' To achieve the objectives, and to implement the policy
recommendations of the NEP,'^^ the National Environment Management Action Plan
(NEMAP) was adopted in 1994 within the framework of the NEP, encompassmg the
participation of people at all levels.'^s In respect of marine environmental problems, the
NEMAP provides that govemment agencies such as the Ministry of Defence, the
Bangladesh Navy, the Ministry of Shipping, the Ministry of Envfronment, and the
"^O Envu-onment Policy 1992, para 3.10.2 and para 3.10.3.
'1 Envtionment Policy para 4.4.
'2 Preamble of National Action Plan 1992.
"^3 Farook M and Hasan R, 'Countiy Reports-Bangladesh', Asia Pacific Joumal of Environmental
Law, 1996, Vol 1, No 1 at 85.
-292- Department of Environment wiU take precautions,^"* formulate appropriate measures'^^
and adopt appropriate programs^^ to ensure the protection of territorial waters from
pollution.
The application of these policies is broad. They are not specific to one particular marine
pollution problem. However, they encompass issues of marine envfronmental
protection from pollution, and thus can be expected to beneficially impact on the conttol
of LBSMP. According to NEMAP, there are a number of Ministries involved in
implementing this plan. There are also important non-govemmental organisations with
coastal environmental interests involved. For example, Intemational Centre for Living
Aquatic Resources Management (ICLARM) has specific wetland management
programs for the country and the Bangladesh Cenfre for Advanced Studies (BCAS) has
provided assistance to the Ministry of Environment and Forest (MOEF) for the
NEMAP.77 However, the vagueness and overlapping responsibilities in the law
determining the authority over marine pollution conttol in the NEMAP is acting as a bar
to development of effective inter-agency and inter-ministerial coordfriation ui
implementing the plan.78
"74 NAP para 10.3.
"75 NAP para 10.5.
76 NAP para 10.8.
'7'^ Bangladesh National Water Management Plan Project, Development Sti-ategy Report, Vol 2 (March
2001) at 11.
"78 The World Bank also noted tiiis issue. Bangladesh National Water Management Plan Project, ibid at
12.
-293- 7.4.4 Marine Environmental Research and Education
A series of studies and seminars dfrected at marine environmental research and education has been conducted in countries of this region. They include the National
Seminar on the Protection of Marine Environment and Related Ecosystems held m
Dhaka 1979 (27-29 November) in collaboration with UNEP and UN/ESCAP; and the
Regional Symposium on Environmental Management of Mangroves, and Coral and
Island Ecosystems in South Asia, in Dhaka on 21-25 August 1983.
Various national institutions and organisations are also engaged in marine
environmental research, monitoring, and enforcement. A number of universities in this
Sub-region work on marine environmental pollution studies and offer courses and
conduct research work in this field. For example, in Bangladesh, institutions engaged in
environmental research, monitoring and enforcement include the Ministry of
Environment and Forest; the Ministiy of Agriculture; the Ministry of Fisheries; the
Association for Social Development; the Bangladesh Environmental Lawyers
Association; the Cenfre for Envfronmental Studies and Disaster Management; the
Cenfre for Environmental Studies and Research; and Dhaka, Rajshahi, Chittagong,
Khulna and Bangladesh Agricultural Universities.^^
In India, institutions engaged in marine envfronmental research, monitoring and
enforcement include the Ministiy of Envfronment; the Ministiy of Fisheries; the
Ministry of Agricultiire; tiie Port Trust of Calcutta; the River Research Institiite; the
79 Holmgren S, supra note 1 at 121.
-294 Water Pollution Control Board; the Indian Institute of Agriculture; Calcutta University;
Jadavpur University; Aligarh Muslfrn University and the Mahattna Gandhi University, so
A joint movement of both NGOs and the public has begun in relation to the degradation of marine environment from pollution in India and Bangladesh. For example, a workshop on 'Sfrengthening Governance and Communication in Bangladesh Water
Sector' was organised in Dhaka by Environment and Geographic Information System
(EGIS)S'. This workshop specifically focused on integrated water resources management. Various representatives from govemment and non-government organisations, and representatives from public community interested in environmental issues participated.
Although such research and education are not specifically directed to study the threats of LBSMP they could have an impact on broader awareness building. By promotmg awareness on environmental issues these activities could help to bring people together and could provide a basis for LBSMP confrol. However, issues and efforts that are required for LBSMP confrol include extensive consultation, stiidy, and research on marine and coastal pollution. Massive education of tiie public m terms of pollution confrol measures, conservation of marine resources in a sustainable manner and development of scientific program to sttidy LBSMP problems are unportant m this respect. All these are still barely sufficient in this Sub-region.
80 Holmgren S, ibid at 141.
81 Envtionment and Geographic Infomiation System (EGIS) Bangladesh, The EGIS Newsletter, Issue
No 3, 2002 atl.
-295- 7.4.5 Public Participation
Community-based initiatives facihtate the involvement of local communities m marme and coastal pollution confrol and management. Since LBSMP originate locally, local people can convenientiy identify the relevant pollutants tiiat need to be confrolled.
People involved in this process can establish a network, takmg into account the local social, and marine environmental conditions. This network can also provide local information to keep a project on the right track, and to reduce the risk of LBSMP.^^
There are signs of public participation in legal processes in this region to protect the
envfronment from water pollution. The Indian Supreme Court decision of H C Mehta v
Union of India and Others^^ is an example. The litigation in this case cenfred on the need to protect the environment from the discharge of untteated effluents into the river
system. The Indian Supreme Court ordered the closure of 30 tanneries in Kanpur
District. The judges held that without first estabhshing a primary treatment plant, no tannery could be allowed to operate.
The judges also held that when the statutory authorities do not discharge their duties, the court has the power to issue appropriate dfrections.^'* The case was brought by a private mdividual, m the public interest. Development has also occurred in Bangladesh in the
82 For public participation see Chapter 4.8 supra.
83 All India Report (AIR) 1988 SC 1037.
84 HC Mehta v Union of India and Others, Supreme Court decision, dated 22 September 1987, Quoted
from Govtiid H, Recent Development in Environmental Protection tii India: Pollution Contiol,
AMBIO A Journal of the Human Environment, 1989, Vol 18, No 8 at 432.
-296- area of public interest environment litigation. Dr. Mohiuddin Farook v Bangladesh could be an example in this respect.^s
While acknowledging legislative policy formation, education and public participation activities contiibute positively to LBSMP confrol, one has also to be doubtfiil of tiiefr efficacy. States m this Sub-region have signed the intemational mstiiraients on
LBSMP, but have not yet made any effective attempt with particular reference to this type of marine pollution. Regional and bi-lateral agreements conceming LBSMP are
StiU absent in this region. Existing national legislation may establish a basis for marine environmental protection but its enforcement is inadequate.^^ There is hardly any meaningful policy for LBSMP control. Although some unportant mles for LBSMP confrol, such as environmental quahty standards, and environment impact assessment guidelines have been formulated, they are inadequately implemented, tending to be merely wish lists.^7 There are institutional, sfrategic and financial obstacles. Even in the sphere of public participation, there are limits, drawn by public awareness, envfronmental education, research capacity and legal standing. ^^ Because of this
85 Dr. Mohiuddin Farook v Bangladesh (1996) 48 Dhaka Law Reports (DLR). The case was ui
relation to the experimentation with pepoles' lives and livelihoods ui the name of a
compartmentalisation pilot project which was a component of the food action plan. Although this
case was not directly related to water pollution conttol it is relevant to refer to ti ui tiiis respect.
86 For example, tiie citizen suti provision ui flie Indian Envtionment (Protection) Act has been
characterised as an 'eye wash', as only govemment officials are given tiie power under section 19 of
titis Act to collect samples needed as evidence of a violation of tiie Act. (Rosencranz A (et al).
Environmental Law and Policy in India, (Tripatiiil992), at 74).
87 In tills respect Bangladesh EPA 1995 and Bangladesh NEP 1992 is referable. See Farook M and
Hasan R, supra note 73 at 81.
88 See Hohngren S, supra note 1 at 109 and 124. -297- limitation, marine envfronmental research and awareness campaign programs on this issue are not routmely carried out. For example, an envfronment mterest group, tiie
Coastal Area Resource Development and Management Association, was formed m
Bangladesh in 1987 by the parliamentary members for the coastal districts to work witii the Special Parliamentary Committee on Coastal Development. Currently, this is inactive.s9
7.5 OBSTACLES IN DEALING WITH LBSMP IN THE BAY OF BENGAL SUB- REGION
The previous sections of this chapter demonstiated that the Bay of Bengal Sub-region is one of the world's least developed areas in terms of LBSMP conttols. There are several contributing factors to the inability of the States in this Sub-region to conttol LBSMP.
These include poverty; incapacity; lack of economic incentives to the use of resources in a sustainable manner; and regional conflicts.
7.5.1 Poverty
Economically and industrially the two countries studied in this Sub-region are considered developing nations.^o The governments of tiiese coimtries are stmggling
89 Hohngren DS, An Envtionmental Assessment of tiie Bay of Bengal, supra note 1 at 121.
90 In Bangladesh flie GDP real growtii rate is 5.5%; GDP per capita is $1,330 and GNP per capita is
$346 (1997 est.), Bangladesh [Online], Avatiable URL:
('http://\\ww\odci.gov/cia/publications/facthook/bg.litml) (Accessed 28 August, 1999).
In India GDP real growtii rate is 5.5%, GDP per capita is $1500 aad GNP per capita is $422(1996
est.) (SAARC: Profile of SAARC member state, Available URLs
-298- primarily with high levels of foreign debt9' and with ttying to achieve a national income
sufficient to raise their populations above the poverty level. They are less concemed
with the immediate or longer-term effects of pollution, except where the pollution is of
a type which could lead to infection and epidemics. ^2
The simple reason for the tardiness in adopting measures for LBSMP conttol is that
where people are stmggling for thefr basic needs, they cannot act as protectors of tiie
environment. Poverty is indirectly acting as a great polluter in this Sub-region. While
addressing representatives of 12 South Asian countries at the time of the presentation of
Brundtiand Commission's Report in 1987, the then Indian Prime Minister, Rajiv
Gandhi, observed that:
mass poverty was forcing the poor to degrade the envu-onment on which they depended for sheer survival. ... [0]nly if we are able to improve the quality of life of the poor, will [we] be able to protect and regenerate the envuonment. ^3
(http://www.saarc.coin/spbangla.html) and ("http://www.saarc.coin/spindia.html) (Accessed 2
September 1999). More than 40 percent of the world's poor hve in South Asia. (Asian
Development bank, Environment Matters, 2001 at 44).
91 Bangladesh's extemal debt: $17.1 bUlion (1996 est.)Bangladesh [OnHne], Available URL:
httD://www.odci.gov/cia/pubtications/factbook/bg.html (Accessed 28 August 1999). India's
extemal debt: $97.9 bilhon (March 1995)(SAARC: Profile of SAARC member state, Avatiable
URLs: http://www.saarc.coni/spbangla.htnti and http://www.saarc.coni/spindia.html
(Accessed 2 September 1999).
^2 Bigham DA, 'Pollution from Land-based Sources', ui Cusuie DJ (et al). The Impact of Marine
Pollution, (Croom Hehn Ltd.: London, 1980) at 203.
93 Gavind H, 'Recent Development tii Envtionmental Protection in India: Pollution Confrol', supra
note 84 at 430.
-299- This observation remams as tme today as it was more than a decade ago. Due to poverty. States hesitate to deal with LBSMP. They promote thefr economic development as a priority issue rather than marme environmental protection from land- based sources.
7.5.2 Incapacity94
Marine environmental institiitions in the region coordinated poorly compete against each other, and are institiitionally weak. They are far from exercising any satisfactory control of LBSlVLP.^s Environmental regulatory regimes are fragmented under various
Ministries of govemment. Sometimes they compete against each other, raising uiter- sectoral conflicts. For example, following the Stockholm Declaration,^^ the
Bangladeshi govemment established the Ministry of Environment and Forest (MOEF) in 1989 and the Department of Envfronment (DOE), which was formerly under the
Ministry of Agriculture, was place under the MOEF in 1989. Under the MOEF, DOE was upgraded with responsibilities for the formulation of environmental policies, preservation of the environment, and confrol of environmental pollution.^^ However, other Ministries remain responsible for environmental protection, such as the IVImistry of Health, the Ministiy of Shipping, tiie Ministiy of Works, the Mmistry of Fisheries, and the Ministiy of Agriculture. MOEF has no authority over these Mmistries on
94 Incapacity relates to the concept of capacity builduig. See Chapter 4.8 supra.
95 Global Envtionmental Outiook (GEO): Chapter 2: Regional Perspectives: Asia and tiie Pacific:
Underiying Causes, [Onluie], Available URL: http://grid2.cr.usgs.gov/geol/ch/ch2 6.htin
(Accessed 5 October 1999).
96 (1972) 11 ILM 1416. See Chapter 5.4.1 supra.
97 Section 4(2), Envtionmental Preservation Ordinance Bangladesh, 1991.
-300- environmental matters. The roles and activities of these bodies are yet to be coordinated with those of the DOE. This poor institutional organisational stincture is a leading factor in the continufrig marine envfronmental problems in the BOB Sub-region.^^
The DOE has consistently been imder-resourced and needs institutional sfrengthening.
Monitoring and enforcement mechanisms are very poor. Recently the Sustainable
Environmental Management Program (SEJVIP) has undertaken a five-year project on
'capacity building for environmental legislation and policy analysis' with the help of the
United Nations Development Program (UNDP) and the Canadian govemment.
In addition, public awareness of the value and importance of the marine and coastal
ecosystem is poor. Awareness-supporting measures, such as human resources, ttaining
courses, publications, posters, pamphlets, are needed.
7.5.3 Lack of Economic Incentive to use Resources in a Sustainable Manner
There is a significant lack of economic incentive for the public or for polluting
uidustiies, located in coastal areas, to use resources in a sustamable manner, or to take preventive or precautionary measures to prevent pollution. The Govemment of India, however, has recently introduced an economic mcentive system to combat mdustrial pollution. Fiscal instiiunents, such as pollution taxes, and pollution tteattnent cooperatives ('collective action'), have been mfroduced to provide factories witii
98 Worid Bank, Envtionment Matters 1999, World Bank Annual Review, July 1998-June 1999 (FY 99)
at 35. In recent tunes uiter-sectoral worktiig relationship has stiengtiiened to some extent.
However, inadequacy is still a major problem.
-301- incentives to adopt the least expensive technologies for pollution confrol.99 This institutional change is compatible with reduced costs and also provides subsidies to tiie larger industries as an incentive to pollution control. However, the current pohcy is very general and the question remains as to its apphcation to conttol LBSMP; that is, the LBSMP problem is not directly addressed by it.
The operation of laissez-fafre principles in economic and industrial pohcies of countries in the BOB Sub-region has resulted in numerous factories and other economic activities being undertaken without much attention to the protection of the marine envfronment
from land-based sources. An acceptable balance between soimd market principles for
economic growth, and good management to ensure adequate protection of the marine
envfronment from LBSIVIP, is still needed.
7.5.4 Sub-Regional Conflicts
Sub-regional political conflicts make it difficuh to jom any effective regional
cooperative efforts to confrol LBSMP. Territorial and jurisdictional disputes between
India and Bangladesh pose obstacles to cooperative activity contmue at tiie time of
writing. "^0
99 Murty MN, 'Envtionmental Regulation ui tiie Developuig Worid: The Case of India' supra note 65
at 332-334. An example of 'collective action' is Common effluent tieatinent plants (CETP). These
are less expensive in terms of capital and operation costs, (ibid, at 334)
100 For example, the delimitation problem between Bangladesh and India ui relation to Soutii Talpotti
ui tiie Bay of Bengal creates political conflict between tiie Bangladeshi and Indian governments.
This tiny island lies at tiie moutii of tiie Hariabhanga River tiiat separates India and Bangladesh. It
was discovered by a US satellite in 1974 and became an issue m tiie mantune boundary talks in
-302- In this context, regional cooperation and partnership building'^' is desfrable to pave the way for effective LBSMP confrol in this region. To pursue cooperative programs, regional conflicts need to be narrowed down. Political negotiation, diplomatic conferences, and regional workshops on the importance of the regional marine environmental protection from land-based sources could play an important role to enhance the common understanding and lead to easing tensions in broader disputes. In this regard, the Workshop on Managing Potential Conflicts in the South China Sea, could be an example in setthng regional disputes in the Bay of Bengal Sub-region and for effective cooperation on marine environmental protection from LBSMP.'02
1979. However, a maritime boundary agreement between these two countries is yet to be concluded.
India-Bangladesh border issues and the Tin Bigha Corridor are also examples of pohtical conflicts
in the Sub-region. (For details see Jacques K, Bangladesh, India and Pakistan: Intemational
Relations and Regional Tensions in South Asia, 2001.
rhttD://www.flonnet.com/fl 1817/18170730.htin).
101 As early as 1969, tiie Pearson Comnussion on Intemational Development suggested tiiat flie
formation of partnership requires the specification of reciprocal rights and obligations, and the
estabhshment of clear objectives tiiat are beneficial to both Parties. (Pearson LB, Partners in
Development: Report of the Commission on International Development, London, Commission on
Int. Development, 1969). The essence of partnership is 'a relationship based upon agreement,
reflecting mutiial responsibilities tii fiirtiierance of shared uiterests'. (Shapuig the 21'' Century: The
Contribution of Development Cooperation, Paris OECD, 1996).
102 The Workshop on tiie Soutii Chuia Sea adopted tiie following resolutions: (i) States shall not use
force; (ii) ASEAN States should be encouraged to settle tiieti maritime disputes, preferably before
talking formally with non-ASEAN states to settle tiieti territorial disputes; (tii) Informal meeting for
all uivolved States could be held on tiie issues of tiie Spratlys and Paracels; and (iv) Stintiar
workshops could be arranged and expanded to uiclude non-ASEAN States for tiie purpose of
-303- In conclusion, it can be observed that systematic and scientific analysis of the root causes of LBSIVIP, identification of legal opportunities, potential economic, fiscal and investinent strategies, technical assistance and capacity building efforts at tiie national level in this Sub-region are madequate. Nothing of any significance has been done on
LBSIVIP confrol at the Sub-regional level. No Sub-regional project specifically to deal with LBSIMP confrol has been initiated. There is no binding intemational legal arrangement conceming the marine environmental protection from land-based sources.
7.6 THE WAY FORWARD: COOPERATION AND PARTNERSHIP BUILDING
Through coordinated action the countries of this Sub-region may achieve many benefits in LBSMP confrol. They face common problems, such as inadequate legal frameworks, enforcement capabilities and institutional coordination, a lack of comprehensive and rehable information, and inadequate resource management practices and policies.'°3
Through a concerted, harmonised collaborative approach they may share experiences, expertise and information, develop common sfrategies for pollution confrol, and enhance regional as well as local solutions on LBSMP issues.
ttansforming potential conflicts in the South Chtiia Sea uito potential areas of cooperation tii tiie
following fields: envuronment, ecology and scientific research; shippuig, navigation and
communications; resources management; political and security issues; territorial and jurisdictional
issues; and tiistitiitional mechanisms for cooperation (Oceans Instittite of Canada, Workshop on
Managing Potential Conflicts in the South China Sea (Proceedings), Research and Development
Agency, Department of Foreign Affairs, Rep. of Indonesia and Oceans Institiite of Canada,
Denpasar, Indonesia, 22-24 January 1990.)
103 ESCAP/UNEP/SACEP, Proceedings of the Workshop on Management Sti-ategies for the Protection
of the Coastal and Marine Environment in the South Asian Seas Region, Colombo, Sri Lanka, 1993.
-304- There is a growing realisation that regional cooperation can bring economic benefits fri this region. These benefits include knowledge spill overs and accelerated learning curves; economies of scale in data collection and information management, including storage and dissemination; economies of scale in scientific, managerial and adminisfrative fraining; better and cheaper enforcement mechanisms; and the economics of agglomeration (the creation of one or more centres or fora for regional environmental management), including reduced fransport costs, and cheaper inputs.'^"^ For example, regional cooperation would be beneficial in any review of national legislation, in assessing and identifying shortcomings and opportunities in a cost-effective way.
Most regions of the RSP have estabhshed regional tmst funds for major financial support of marine pollution management. However, utilising such tmst fimds, regions are succeeding in implementing their marine environmental programs where coastal
sates are developed or mixed developed and developing, but not succeeding where coastal States are only developing or in economic fransition'o^.
A Tmst Fund was established on 7* August 1995 in the South Asian Seas.'O^ However, the Fund is not adequate to implement the major task of LBSMP conttol. Further
attention therefore, is needed to establish an adequate fund. A comprehensive and
effective global regime could serve this purpose. This could enhance the possibihty of bringfrig developed countiies, developmg countiies, donor agencies, and NGOs together
104 Valencia MJ, 'Ocean Management Regunes tii tiie Sea of Japan: Present and Futiue', Paper
presented at the ESENA Workshop: Energy Related Marine Issues in the Sea of Japan, Tokyo,
Japan, 11-12 July 1998, at 21.
105 See Chapter 6.6 supra.
106 Annex IV, Statiis of the Soutii Asian Seas Program, The Colombo Workshop, supm note 15 at 20.
-305- for cooperative action; obhge those States and actors to conttibute in a ttiist frmd to make it effective and adequate; and advance capacity building to confrol LBSMP.
7.7 CONCLUSION
Domestic and industrial wastes including sewage and heavy metals, pesticides, agricultural run-off and river discharges, are major sources of LBSMP in the BOB su- region. Sedimentations have also become a dominant issue of marine pollution m the
Sub-region. Pollutants reach the sea water without freatment and have resulted in contamination and have caused marine pollution. They deteriorate the regional marine envfronment severely and dismpt the functioning of coastal ecosystems in the Sub- region.
Although SAS Action Plan, Colombo Workshop and BOBP have provided a starting point from which to pursue intemational efforts for the protection of the marine environment from LBS in the BOB Sub-region, legislative and institutional mechanisms remain weak. Marine law and policy of this region remams very general, rather than specific to LBSMP. fr is inadequate to deal with LBSMP contiol because it is dated and incoherent.
Due to institutional, sfrategic and fmancial consfraints, intemational recommendations, policies and sfrategies related to LBSMP are not unplemented in this Sub-region, hi relation to LBSMP contiol, no progress has yet been made through the fimding proposal made under the BOBP. Through tiie Colombo Workshop, the GPA stimulated LBSMP control in this Sub-region to some extent. There is, however, a big question mark hanging over the workability of this Workshop's approaches. The GPA is
-306- recommendatory, and no comprehensive legal regime exists for this region on LBSIVIP
control.
To estabhsh an effective regional LBSMP control regime, the present anangements
should be reviewed, and appropriate legal and policy mechanisms relatmg to LBSMP
confrol need to be developed through coordinated, rather than isolated action. Regional
and sub-regional marine environmental programs could form a coherent and effective
legislative basis for sfrengthenfrig national and local institutional capacities for
integrated coastal management systems for LBSIVCP control.
To achieve such a change in the BOB, a comprehensive and effective global regime with tmst funds for regional capacity building is needed. It could ensure adequate
financial support to coimtries in this Sub-region which do not have the benefit of developed country regional participants. This cooperative global arrangement for
LBSIVIP control is not only cmcial for the BOB Sub-region studied in this chapter, but for similar regions elsewhere.
The BOB Sub-region LBSIVIP problems cannot be fixed solely by the states concemed due to their systemic incapacity. Only global action marshalling developed coimtry resources might develop the national infrastmctures and reinforce political will locally.
Therefore a sfrengthened global cooperative regime is necessary. However, countries from other regions have little interest as they are not dfrectiy affected, because most
LBSIVIP are fimdamentally coastal and regional, not globaUy ttansported. If poorer regions are not to be left to fester, then developed countiies must look beyond their own directly affected interests.
307 CHAPTER 8: TOWARDS AN EFFECTIVE INTERNATIONAL COOPERATIVE ARRANGEMENT FOR LBSMP CONTROL
8.1 INTRODUCTION
It cannot now be denied that land-based sources of marine pollution (LBSMP) are
increasingly deteriorating the marine and coastal environment in different regions of tiie
world's oceans. Early intemational approaches to LBSMP conttol measures, includmg
in 1982 the LOSC, and in 1985 the Montreal Guidelines, were superficial. Later, m
1995, a comprehensive global framework was put mto place in the form of the Global
Program of Action for the Protection of the Marine Environment from Land-based
Sources of Marine Pollution (GPA). The GPA, although global in scope, operates with a
regional emphasis. However, it operates as merely a set of recommendations, rather than
as binding commitments.
Recent studies of increasing pollution from land-based sources indicate that the present
framework is not enough to combat the LBSMP problem. Further innovation is needed.
With that theme in mind, the objective of this chapter is to propose such a framework
for enhanced intemational cooperation for the effective confrol of LBSMP. In doing so
the chapter explores important elements of effective cooperation and suggests remedies
for the perceived shortcomings of present cooperative arrangements.
This chapter commences by surveying a basis for mtemational cooperation over the
confrol of LBSMP. It then undertakes a critical analysis of current cooperative
arrangements for LBSMP control. Existing madequacies are highlighted and aheraative perspectives on environmental liability, settlement of marine environmental disputes and capacity building in the context of LBSMP conttol are discussed. The interface of
-308- cooperation and habihty is stiidied both in the hght of preventmg, as well as remediating, marine environmental damage from LBSMP. Issues of dispute settlement for strengthening marine envfronmental standards are examined. Funding and technology fransfer, public participation, awareness and education, and political commitments are highlighted in relation to capacity building. The prospects of achieving adequate LBSMP control through an ahemative intemational framework, based on interlocking regional and intemational cooperation, is discussed at the end of the chapter.
It concludes that an effective intemational regime for LBSMP contiol must be premised on binding cooperative arrangements interlinking global and regional levels. Therefore, there is a critical need to conclude an enforceable global tteaty with detailed administrative and financial support systems for regional and national implementation.
8.2 INTERNATIONAL COOPERATION AND MARINE POLLUTION CONTROL
Cooperation seems to be the key element for well-defined management and organisational stmctures at any level of societal organisation. It tends to maximise development opportunities through reducing financial and technical constiaints. This process may also contribute to successful balancing of the interests of marine pollution confrol through consultation,' as well as supporting the maximum implementation of the confrol regimes of marine pollution. Therefore, while 'cooperation' is principally a topic of interest in disciplines such as organisational behaviour and sttategic
1 Cooperation uicludes consultation. Kwiaticowska B, 'Marine Pollution for Land-based Sources:
Current Problems and Prospects', Ocean Development and International Law, 1985, Vol 14 at 326.
-309- management, it is also an important theme and a most urgent requfrement for effective protection of the world's seas and oceans environment.^
The spirit of 'cooperation' is reflected m customary intemational law that dictates that a
State has an obhgation to protect the envfronment and that it should consider the
interests and rights of other States.^ It was on the basis of this that intemational
organisations with competence in environmental matters were created. Legal
instruments were accordingly adopted to address the envfronmental problems in the
period between 1945 and 1972. However, more extensive cooperative responses to
environmental problems, both in a vertical way (which involves communication
between those who manage resources at the local level, NGOs, states' appropriate
regional arrangements, and intemational organisations) and in a horizontal way (which
involves communication between States, between intemational organisations, or
between regional arrangements), surfaced during the period between 1972 and 1992.
Today, the extended cooperative concept has been accepted by intemational
environmental law scholars and by the intemational community, and is considered to be
an important approach of the intemational law of marine pollution.'*
2 Bimie PW, 'Impacts on tiie Development of Intemational Law on Cooperation: The UN Law of tiie
Sea, Sttaddltiig Stocks and Biodiversity Conventions', Paper presented ui tiie Conference on
Stockholm Declaration and Law of the Marine Environment, Stockhohn University, Sweden, May
22-25, 2002 atl.
3 See Chapter 5.2 supra.
310- 8.2.1 Effective Cooperation for LBSMP Control
The impacts of LBSMP in the marine environment have obvious relevance for motivation to cooperate in LBSMP confrol. fri frs report on the state of the marine environment, 1990, the GESAMP concluded that:
... tiie marine envtionment could deteriorate significantly fi-om LBSMP ui the next decade
unless sttong, coorduiated national and uitemational action is taken now.5
Motivation to cooperate intemationally in LBSMP conttol is requfred to:
1. protect High Seas commons from cumulative oceanic unpacts (although this is minimal and perhaps only relevant for a limited group of pollutants such as POPs bioaccumulating in a few species);
2. protect waters under national jurisdiction from frans-boundary impacts of LBSMP
(although this is again limited, to enclosed and semi-enclosed seas where coastal urbanisation is prevalent); and
3. protect inshore waters from a State's own domestic impacts by intemational sharing of commitment and resources, so as to be more effective and efficient nationally
See UNEP, Review of Development and Activities since 1985 - Note by the Secretariat, UN Doc.
UNEP/MG/IG/L at 516-17.
5 UNEP, 'Marine Pollution from Land-based Sources' Industry and Environment, (UNEP lE/PAC),
June 1992, Vol 15, Nos 1-2 at 2. Cooperation was stated to be one of imperatives at the heart of the
global ocean management by the GESAMP 1990.
-311- (although this has attraction only where all or some of the States have resources to share).
Most LBSMP fall into category 3 where mainly inshore waters are affected from domestic activities. However, often states lack the resources requfred to effectively control thefr own LBSMP. Therefore, the proposition is to generate intemational cooperative regimes that include states that have resources to share by mteriockmg regional regimes with a global regime. The global regune should have the necessary features to achieve effectiveness in a cooperative goal relationship.6 These features include common goals, sfrong group identity, tmst fimds, group accountability, communication, and egahtarian rewards and incentives.
There are some states that would be only giving, but not receiving, resources and without commons or frans-boimdary impacts as motivation. Thus the motivation for those states also need to be considered. Some of the motivations driving such donor cooperation are altruism, global economic stability (market growth and environmental refugees reduced), tourism and species conservation, etc. However, so far that motivation has been insufficient for legally binding commitments or new and additional
The 'cooperative goal relationship' is an important tool for the promotion of effective functiorting of
the organisation. (Organ DW, Organizational Citizenship Behaviour: The Good Soldier Syndrome,
(Lexington Books: Lexington, 1988) at 4. This system is concemed with fostering communication,
placing people in a coherent organizational stmcture, and motivating people in formulating
management policies and mechanisms. Tjosvold, for example, identifies four interactive dimensions
of a 'cooperative goal relationship': exchanging and combining information, ideas and otiier
resources; giving assistance; discussing problems and conflicts constmctively; and supporting and
encouraging each other. (See Tjsvold D, 'Cooperation and Competitive Dynamics within and
between Organizational Units', Human Relations, 1988, Vol 41 at 425-436).
-312- resources' commitments. Nevertheless, increasing awareness of impacts that have previously been hidden may stimulate and motivate mcreased donor cooperation for
LBSMP confrol.
As an important theme of effective LBSMP confrol, the cooperative approach is affirmed virtually in all relevant regional and intemational agreements. These arrangements have laid the basis for a cooperative approach through provision of expert advice and support, available equipment, better guidelines and standards, systematic assessment of pollution levels, and evaluation of effectiveness of measures.'^
Nonetheless, there are shortcomings in present regimes in achieving the goals of
LBSMP confrol. The following section looks at the perceived weaknesses of cooperative arrangements m existing framework on LBSMP conttol.
8.3 PERCEIVED SHORTCOMINGS OF CURRENT COOPERATIVE MECHANISMS FOR LBSMP CONTROL
One of the fundamental reasons most cunent cooperative mechanisms for LBSMP control are insufficient and not fully effective is that they lack legally binding frameworks.
"7 Sands P, Principles of Intemational Environmental Law, (Manchester University Press, 1995), Vol
1, at 324.
-313- 8.3.1 Global Frameworks
• United Nations Convention on the Law of the Sea (LOSC)
Section 2 of Part XII of the LOSC contains several provisions relating to cooperation in the overall context of marine pollution confrol.^ These are requirements for assessment and notification without any consuhation. They are very indeterminate and no specific procedures are laid down for thefr implementation. They are dfrected towards marine pollution in general, and not exclusively LBSMP.
In relation to control LBSMP, LOSC requires states to establish global and regional mles and standards in general to control LBSMP^ but it lacks specific requirements.'O
Similarly, in order to protect the enclosed and semi-enclosed sea's envfronment it requires states only to 'endeavour' to coordinate." These provisions are largely hortatory and elusive in relation to LBSMP confrol.'^ The application of these provisions is very general, broad and uncertain in practice.'^ LOSC provisions in relation to monitoring risks and effects of pollution make these the domestic concem of
^ See Chapter 5.3.2.2 supra.
9 Article 207(4). See Chapter 5.3.2.2 rajora.
10 Nygh The Hon P, 'Conference Summary,' ui (Tsamenyi B M (et al), The United Nations
Convention on the Law of the Sea: What it Means to Australia and Australian Marine Industries,
(Centie for Maritime Policy, University of Wollongong, Austtalia, 1996) at 230.
11 Article 123 of tiie LOSC.
12 Bunie PW and Boyle AE, Intemational Law and the Environment, (Oxford University Press, 2002)
at 410.
13 See Chapter 5.3.2.2 supra.
-314- states rather than designating them as regional or globally shared tasks. The rationale for this position is that states have absolute authority to observe, measure, evaluate and analyse the risks or effects of pollution in the marine environment in areas under thefr jurisdiction. Therefore, the LOSC qualifies monitoring such that 'states endeavour as
far as practicable'.''* All these formulations of LOSC are without significant normative
content and therefore, undoubtedly inadequate for the purpose of giving effect to the
objective of sustainable development and integrated coastal zone management
(ICZM).i5
Because of these inadequate LOSC approaches to LBSMP control, the Montteal
Guidelines and the GPA were adopted as unplementing tools for Article 207 of the
LOSC, to provide detailed guidance and assist states to develop appropriate sfrategies
and measures to protect the marine environment from land-based sources.
• Montreal Guidelines
The Monfreal Guidelines emphasise intemational and regional cooperation for LBSMP
control. 16 However, most states have never intended to fully implement these
Guidelines.'7 Many states have responded to only a limited number of the Guidelmes
and have implemented only those Guidelines which are very general in nattire and are
14 Article 204(1).
15 Buine PW and Boyle AE, International Law and the Environment, supra note 12 at 410.
16 Montteal Guidelines 5. See also Chapter 5.4.2 5wpra.
17 NoUkaemper A, 'Martiie Pollution from Land-based Sources: Towards a Global Approach', Marine
Pollution Bulletin, 1992, Vol 24, No 1 at 10.
-315- compatible with their pre-existing national priorities.'^ In the absence of adequate institutional arrangements to promote and supervise intemational mles and standards, and to monitor the marine environment, the Monfreal Giudelines have had httle practical effect. Like Article 207 of LOSC, they leave states wide individual discretion in deciding what measures to adopt.'^ Under the Monfreal Guidelines, pollution conttol depends entirely on the pohtical and economic needs of individual states.^o
Therefore, the Montreal Guidelines do not constitute any legal improvement over the
LOSC in setting intemational standards for the conttol of LBSMP.^' Like the LOSC, they lack guidance as to the criteria to determine the applicability of intemational
standards and measures. Prescriptive technical standards that can be seen in conventions
on ship-generated pollution are absent here. States remain individually responsible for
the negotiation or adoption of detailed standards, taking accoimt of local, ecological,
geographical and physical characteristics, the economic capacity of states and their need
18 Ibid at 10.
19 Boyle AE, 'Land-based Sources of Marine Pollution', Marine Policy, 1992, Vol 16, No 1 at 34.
20 Stiice tiie Monfreal Guideluies are non-btiiduig, tiieti statiis is itself uidicative of the reluctance of
states to commit tiiemselves in titis respect. (Boyle AE, 'Protecting tiie Marine Envuonment some
Problems and Development ui tiie Law of tiie Sea', Marine Policy, ibid at 83.) (The guideluies are
non-buiduig and also use terms such as 'basic obhgations' and 'should', e.g. 'states should .... ui
accordance witii flieu-capabilitie s take all measures necessary to prevent and conttol pollution'(para
4(1)). 'States should take appropriate measures' (para 7(1)). 'States should adopt and unplement
national laws and regulations for tiie protection of tiie marine envtionment fi-om land-based sources'
(para 161). 'States should ensure recourse is avatiable tii accordance witii tiieir legal system for
prompt and adequate compensation' (para 17(1)).
21 Buitie PW and Boyle AE, International Law and the Environment, supra note 12 at 418.
316- for sustainable development and envfronmental protection and the assimilative capacity of the marine environment.22
• Agenda 21 and the GPA
Agenda 21 and the Washington Conference set out broad principles for cooperative behaviour in addressing LBSMP control.23 However, they do not constitute any intemational standards for LBSMP confrol. The reasons behind this can be summarised as follows:
4. They do not create legally binding obhgations. Although they lay down political
commitments to adopt pollution control measures, they lack the force of
intemational law. They are 'soft law' rather than tteaty law, like LOSC.
5. The discretionary and flexibly applicable provisions of these instruments are not
prescriptive or compelling. This frnplicitly encourages countries to invest thefr
capital in sectors other than LBSMP confrol.
All these indicate that a comprehensive framework with effective mtemational
cooperation is yet to come. In fact, in terms of achieving common ends, creation of positive obligations among states, i.e.: charged witii positive obligations of commission,
are important to achieve cooperation intemational environmental law.24 Effective
cooperation also has fristitutional and procedural requfrements. These requfrements are
22 Bimie PW,/6/c? at 418.
23 See Chapter 5.4.3 5z 24 Stoll PT, 'The Intemational Envtionmental Law on Cooperation', ui Wolfiran R (ed), Enforcuig Environmental Standards: Economic Mechanisms as Viable Means?, (Spnnger, Berlm, 1996) at 40. -317- insufficient under present intemational frameworks. They are not concrete enough to provide any kinds of legally bmding conimitments.25 They are uncertain as to tiie standard setting and creation of instittitions for mtemational cooperation. Formulation of a broad-based enforceable global treaty is therefore needed to achieve an enhanced intemational cooperation. 8.3.2 Regional Frameworks There are seven regional agreements for LBSMP confrol. They do offer legal frameworks for cooperation in regional controls on LBSMP.26 These agreements provide States with opportunities for cooperative action to sttengthen institutional capacities by supporting each other through technical assistance, particularly scientific and technological research on inputs, pathways and effects of pollutants, and in the development of new methods for tieatinent and reduction or elimination of pollutants, as well as in exchange of information and monitoring activities.^'' Although relative success has been achieved through regional frameworks, they are still madequate to effectively control LBSMP. They reflect tiie very loose cooperative 25 BuTiie PW, 'Impacts on the Development of Intemational Law on Cooperation: The UN Law of tiie Sea', supra note 2 at 9. 26 Article 1(2) of the Paris Convention, Article 2(3)(b)(ii) of tiie OSPAR Convention, Article 6(2) of tilie HelstiJci Convention, Article (2) of tiie Baltic Convention, and various provisions of Conventions on martiie envtionmental protection, and Protocols on LBSMP tiiose are adopted under Regional Seas Program uicluduig Article 9 of Atiiens Protocol, Article 6 of tiie Kuwait Protocol, Article 6 of tiie Bucharest Protocol and Article 5 of the Amba Protocol. See Chapter 6 supra. 2"^ Cooperative tasks in tiie Nortii Sea, Baltic Sea, Mediterranean and Caribbean regions are notable ui tills respect. See Chapter 6.3.1(a)(i), 6.3.1(b)(i) and 6.5 supra. -318- framework provided by LOSC.^s They have legitunised the weak standards and weak supervisory institutions of global regimes and provided a great deal of leeway for individual states to control LBSMP.29 Many mtemational management principles, particularly the precautionary principle and polluter pays principle, are notably absent within the UNEP regional legal frameworks.^o Within the UNEP Regional Seas Program, the GPA provides cooperative mechanisms for LBSMP confrol at regional levels.^' However, the GPA does not provide sufficient impetus for a uniform degree of cooperation apphcable to aU regions of the world's seas and oceans. Therefore, cooperation on standard setting has been highly differentiated from region to region. For example, cooperation in formulating guidelines and standards has been well achieved where developed countries, for example, in the North-East Atlantic and Baltic Sea Regions, are participants. They are also evident where developed and developing countries, for example, in the Mediterranean Region are the Parties to the agreement.32 But specific regulatory standards and guidehnes for LBSMP contiols are grossly absent in regions where only developing countries are the Parties.^^ All these cfrcumstances suggest that effective cooperative regimes have not been successfully formulated in most of the regional frameworks of LBSMP confrol. 28 Buitie PW and Boyle AE, supra note 12 at 411. 29 Bunie PW and Boyle AE, ibid at 411 -412. 30 The 1996 Mediterranean Protocol is tiie exception. See Chapter 6 supra. 31 See Chapter 5.4.5 5M/7ra. 32 See Chapter 6.3, 6.4 and 6.5 supra. 33 The Bay of Bengal Sub-region in Soutii Asia is an example in tiiis respect. See Chapter 7 supra. -319- Therefore, to straighten the present cooperative arrangements, a more comprehensive and enforceable cooperative framework interlinkmg global and regional levels, is necessary. 8.3.3 Continuing Need for Effective Cooperation Current cooperative measures for LBSMP confrol have been largely confined to the fields of fraining and education. Bateman and Bergin note that: .. .the full benefits of those programs in terms of meaningful cooperation have not yet been realised and are dependent on the political commitment of participating countties and the abiUty of an effective delivery mechanism to manage the action plan.-'^ Although the authors were considering Indian Ocean cooperation, their comment is still applicable to most parts of the world's oceans.^^ Monitoring both of envfronment and implementation is at a very mdimentary stage in most of the regional seas.36 Few human resources are available to monitor compliance with environmental regulations, and the relevant personnel often lack technical knowledge or equipment.^^ Land's comment, made in the context of the Black Sea, is apphcable to many regions of the world oceans: 34 Bateman S and Bergin A, 'Butiduig Blocks for Maritune Security ui tiie Indian Ocean', Ocean Development and Intemational Law, 1996 at 247. 35 See Chapter 6.5 supra. 36 See Chapter 7 supra. 3"^ Faure M G, Enforcement Issues for Environmental Legislation in Developing Countiies, UNU/INTECH Workuig Paper No 19, March 1995 at 18. -320- After decades of damage, tiie Black Sea now ranks among tiie worid's most polluted bodies of water. Speciatist ttauting and uistitiition builduig will have top priority ui tiieprogra m because many of tiieregiona l and national agencies in tiie six countiies lack tiie sktiled personnel needed to assemble reliable data on the marine envtionment.38 In the absence of intemational assistance, it is hard to find any program for national monitoring and data collection on LBSMP confrol. Most of the legal mstiimients are thus poorly implemented so far. A project undertaken by the UNEP/GPA Coordination Office has identified other categories of cooperative actions needed to confrol LBSMP. According to this project report, actions are needed for, inter alia, strengthenmg of institutional and technological capacity; the establishment of data and information networks; adoptuig and updating sewage freatment guidelines; exchanging information on environmentally sound sewage freatment; improving urban and industrial planning; and effectively implementing coastal zone management programs.^^ The Report also emphasises that generic support is needed for, inter alia, fimding; capacity building; the regional Clearing-House mechanism; awareness activities; the development of national and regional programs of action, and for the establishment of legal frameworks and their implementation.'^^ Clearly, considerable work needs to be done in relation to various categories of cooperative action. The Commission on Sustainable Development has repeatedly 38 Land T, 'Pollution and Politics ui tiieBlac k Sea', Contemporary Review, May 1999 at 231. 39 UNEP: Partners in Implementuig the GPA Regional Seas, GPA Coorduiation Office, The Hague, The Netheriands, September, 1999, Issue 1. 40 UNEP: Partiiers in Implementing tiie GPA Regional Seas, ibid. -321- sfressed the need for enhanced implementation of the GPA and the sfrengthening of LJNEP's Regional Seas Program."^' The need for further development was again addressed in the work of the United Nations Open Ended Informal Consultative Process on Oceans and the Law of the Sea in 2000.^*2 Urging GPA implementation based on defined specific activities, targets and financial agreements, the United Nations General Assembly in its fifty-sixth session on 'Oceans and the Law of the Sea' in 2001 recalled the UNEP Goveming Council decision'^^ to hold an Inter-govemmental Review of the frnplementation of the GPA in 2001.44 41 UNEP, Leaflet from UNEP/GPA Coorduiation Office of tiie Global Program of Action for tiie Protection of the Marine Envtionment from Land-based Activities, 1999 at 2. See United Nations, Commission on Sustainable Development, Fiftii Session, April 1997, Overall Progress Achieved stiice UNCED, Report to the Secretary General, (Disti General, E/CN.17/1997/2,1997) para 74. 42 United Nations General Assembly, Report on the work of the United Nations Open Ended Informal Consultative Process and the Law of the Sea at its first Meeting, held at United Nations headquarters from 30 May to 2 June 2000 (A/55/274), part B, Agenda tiem 3 (Exchange of views on areas of concem and action needed), para 26. 43 UNEP Govermng Councti Decision 20/19B, 1999. 44 The specific objectives of tiie Inter-govemmental Review Meeting were to: (i) review progress on tiie unplementation of tiie GPA at tiie national, regional and global levels; (ti) review tiie results of scientific assessments regarduig land-based unpacts upon tiie marine envtionment provided by relevant scientific organizations and uistitiitions, tiicluduig GEASMP; (tii) consider reports provided on national plans to implement tiie GPA; (iv) review coorduiation and coUaboration among organizations and institiitions (regional and global), witii relevant responsibtiities and experience; (v) promote exchange of experience between regions; (vi) review progress ui capacity buildtiig and on mobUisation of resources to support tiie implementation of tiie GPA, particulariy ui countties tii need of assistance and, where appropriate, provide guidance; and (vti) consider tiie need for intemational mles, recommended practices and procedures to fiutiier tiie objectives of tiie GPA. -322- Present progress towards the reduction of LBSMP is not up to the mark. The processes of cooperation are still uncertain and slow due to economic and political complexities and lack of specific obligations. Opportunities to sfrengthen cunent LBSMP cooperative mechanisms are next examined in the light of specific proposals to infroduce envfronmental hability, compulsory settlement of disagreements and to reinforce capacity building. 8.3.3 (a) Environmental Liability: Need for Enforceable Standards Although State responsibility is recognised in customary intemational law (CIL) its apphcation in LBSMP control is far from clear.45 This area of CIL appears to be vague and immature.46 There is no precise obligation upon states for compensation for LBSMP damage. There are no applicable standards for the threshold of unacceptable harm or the requisite standard of care in relation to LBSMP confrol. Although Principle 22 of the 1972 Stockholm Declaration, Article 10 of the London Dumping Convention and Article 17 of the Helsinki Convention 191A intended to impose hability on Confracting Parties for damages resulting from pollution of the marine envfronment, these provisions do not directly impose habihty as they only caU (United Nations General Assembly, Advance Unedited Text, Fifty-sixtii session. Oceans and tiie Law of tiie Sea, 28 March 2001, para 330). 45 See Chapter 5.2 5M)pr(2. 46 Customary law requues States to take measures to conttol pollution affecting otiier states or the martiie envtionment where tiie uijury is serious or significant, and titis is estabhshed by clear convuicing evidence. (Intemational Law Association (ILA), Repori of the Committee on Legal Aspects of the Conservation of the Environment, (Montteal Conference, 1982) at 6. See also Chapter 5.2 supra. -323- for establishing mles on liability for damage resulting from marine environmental pollution without any elaboration on this issue. Article 235 of the LOSC addresses the hability issues with a view to promote State responsibihty to control marine pollution.'*'^ Article 194 of the LOSC also obhges states to take all measures 'necessary' to protect the marine envfronment from pollution.^s But the term 'necessary' may be constmed many ways. Strict enforcement of this obligation for LBSMP control may not, therefore, be possible. There is no a generahy accepted standard in Article 207 on LBSMP. Therefore, it is difficult to determine liability under LOSC in the case of LBSMP.49 fri relation to oil pollution from ships, notable progress has been made through the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992, which has established a civil hability fimd for compensation for oil pollution damage.^o However, there is no conesponding intemational regime on civil liability and compensation for LBSMP, although it is a priority. 5' 47 See Chapter 5.3.2.2 supra State responsibility refers to tiie liability a State can incur for tiie commission of a wrongful act agatiist anotiier State, or, agatiist tiie nationals of anotiier State ui certain cticumstances. For details see discussions on State responsibtiity tii Chapter 5.2.1 supra. 48 Ibid. 49 Ibid. 50 Article 2 of the Convention. 51 Kuwabara S, The Legal Regime of the Protection of the Mediterranean Against Land-based Sources, (Tycooly Intemational Publishuig Ltd., 1984) at 139. -324- Civil hability regimes are obligations entered into by States witii respect to persons under their jurisdiction.52 As long as damage and a causal link are demonstiated it will give rise to liability if there is any breach of obligation to prevent tians-boundary pollution. In this way, instead of a direct prevention obligation, civil liability may indirectly promote prevention standards. It also facilitates greater unplementation of intemational obligations within a particular domain. Taylor states: ...classic responsibility was of tittle avati whereas the harm could be considerable. But the modem concept of liabtiity has stepped in to fill the gap, unttammeUed by notions of fauU or want of care, and gradually giving due weight to the interdependence of peoples and states. Classic responsibility, with its limited field of action, is thus being extended by a nascent liability for risk possessing enormous potential for future development in accordance with the needs of the intemational community. 53 Generally, mles relating to liability have been adopted by other intemational and regional arrangements in order to induce wider compliance with environmental standard.54 Presently, habihty provisions are not often utihsed specifically for LBSMP marine pollution confrol and civil remedies are unlikely to be often used in this respect 52 Leigh K, 'Liability for Damage to the Global Commons', Australian Yearbook of Intemational Law, 1993, Vol 14 at 292. 53 Taylor P, An Ecological Approach to Intemational Law, (Routiedge : London, 1998) at 152. 54 Various martiie envtionmental tieaties provide provisions [LOSC Article 235(3) for example] to develop hability mles and procedures, tiius leavtiig open tiie possibtiity tiiat ttans-boundary pollution damage might be dealt witii on tiie basis of civti liabtiity (Leigh K, 'Liability for Damage to the Global Commons', supra note 52 at 289). The unportance of tiiis aspect of habtiity was uicreased by tiie adoption of tiie final version of tiie draft articles on State responsibtiity for UitemationaUy wrongful acts (UN doc. A/CN.4/L.602/Rev.l). It also reflects die stinultaneous utilisation of State hability and civil liability. -325- due to the scientific uncertainties in fracing pathways. Nonetheless, to promote effective confrol of LBSMP, a liability regime is needed. While there are some provisions on civil liability for damages resulting from LBSMP,55 as yet, these provisions only echo Article 235 of LOSC. There is no intemational mechanism to operationahse these provisions by facilitating a claim for compensation by a national of a State who has been affected by LBSMP arising from another State, even if that pollution violates freaty requfrements.^^ All these observations indicate that mles dealing with liability for LBSMP damage are very inadequate and their implementation is still unclear and uncertain. There is no specific intemational standard for determining LBSMP damage which triggers Habihty beyond CIL. Progress in solving these problems depends on further development of primary intemational mles and mechanisms on frans-boundary pollution damage by adopting sufficiently high, detailed and enforceable standards. A broad-based enforceable global freaty is therefore needed to serve tiiis purpose. Through the promotion of cooperative arrangements this global freaty could promote scientific and technological development and prevention standards of LBSMP confrol. 55 The Montieal Guideluies (Guideluie 17) see Chapter 5.4.2. Article 17 of tiie Helsuiki Convention, Article 25 of tiie Baltic Convention, and Article 13 of tiie Kuwait Protocol, sees Chapter 6.3.1(b) and 6.4.1(b)(iii) respectively, supra. 56 Gelpe M, 'Intemational Mechanisms for Contiolhng Pollution from Land-based Sources: Models for tiie Gulf of Aqaba', tii V'Dui AT (et al). Protecting the Gulf of Aqaba A Regional Environmental Challenge, (Envtionmental Law Institiite: Washtiigton, 1993) at 300. -326- 8.3.3 (b) Resolution of Disputes re LBSMP Control: Need for Broader Framework LOSC provides a comprehensive basis for the resolution of disputes in relation to a case on marine pollution. Relying upon these procedures the MOX Plant Case ^7 took a bold step forward for the prevention of potential marine environmental harm from pollution. In this case, Intemational Tribunal for the Law of the Sea (ITLOS) considered that coastal States need to be accountable for compliance with their obligations when thefr activities affect other States and communities. The Tribunal described the 'duty to cooperate' as a fundamental principle for intemational confrol of marine pollution and for the resolution of marine environmental disputes.^^ This case made a significant contribution to intemational law relating to LBSMP confrol by helping to define the scope of Part XV of the LOSC concemmg compulsory provisional measures to resolve an intemational dispute also covered by another intemational agreement. Article 282 of the LOSC provides tiiat, if the Parties have entered into another agreement covering tiie same subject matter and entailing a bmding decision-making process, then a dispute can be resolved tiirough the procedures under that other agreement.59 However, in the MOX Plant Case, Article 282 was considered to apply only to a dispute conceming the interpretation or apphcation of tiie LOSC 57 See Chapter 5.2.2.2 supra. 58 See ibid. 59 Article 282 of tiie LOSC states, 'If States Parties which are parties to a dispute concenung tiie tiiterpretation or application of tiiis Convention have agreed, tiurough a general, regional, btiateral agreement or otiierwise, tiiat such dispute shall, at tiie request of any party to tiie dispute, be submitted to a procedure tiiat entatis a buiduig decision, tiiat procedure shall apply ui lieu of tiie procedures provided for in tiiis Part, unless tiie parties to tiie dispute otiierwise agree.' -327- specifically, and no other agreement.^o frithi s respect the Tribunal considered 'that even if the OSPAR Convention, the EC Treaty and the Euratom Treaty contam rights or obligations similar to or identical with the rights and obligations set out in the Convention, the rights and obligations under those agreements have a separate existence from those under the Convention on the Law of the Sea'. 6' Thus, Article 282 is about disputes over interpretation or application of the LOSC alone. The agreement- general, regional, bilateral or otherwise- to resolve disputes must concem exclusively disputes under the LOSC. This case successfiilly cleared another hurdle to ITLOS's exercise of it's jurisdiction, as set out in Article 281 (1) of the LOSC.62 Since Article 32(1) of the OSPAR Convention, related to settlement of disputes in the OSPAR maritime area but did not enable provisional measures, it did not preclude the ITLOS from prescribing provisional measures under Article 290(5).^^ 6° The Intemational Tribunal for tiie Law of tiie Sea, Order of 3 December 2001, The MOX Plant Case (Ireland v United Kingdom), para 52. 61 Order of 3 December 2001, The MOX Plant Case, ibid, para 50. 62 Article 281(1) states: 'If tiie state Parties which are Parties to a dispute conceming the interpretation or apphcation of tiiis Convention have agreed to seek settlement of tiie dispute by a peacefiti means of tiieti own choice, tiie procedures provided for ui titis Part apply only where no settlement has been reached by recourse to such means and tiie agreement between tiie Parties does not exclude any further procedure.' 63 Lagoni R, 'Regional Protection of tiie Marine Envtionment ni tiie North East Atlantic under tiie OSPAR Convention of 1992', Paper presented ui tiie Conference on Stockholm Declaration and Law of the Marine Environemnt, Stockhohn Universit}', Sweden, Ma}' 22-25, 2002 at 11. -328- However, Article 282 may not always be so lunfred. The separate opinion of Vice President Dolliver Nelson m the MOX Plant Case itself could uidicate that Article 282 has a potentially broader reach covering disputes over final rather than provisional measures. He commented that: I am in the agreement with the Tribunal that 'for the purpose of determining whether the Annex VTI arbittal tribunal would have prima facie jurisdiction. Article 282 of the convention is not applicable to the dispute submitted to the Aimex VII arbittal ttibunal.'64 However, I have doubts conceming the reach of paragraph 51which may well render article 282 and 281 ineffective.65 This opinion could consfrain the utilisation of the compulsory bindmg dispute resolution system of the LOSC. Some other provisions of the LOSC could underaune its compulsory adjudication system. For example. Parties may choose any other peaceful means to settle a dispute without submitting to the compulsory adjudication of ITLOS or any of the LOSC arbittal chambers^^ and two or more Parties may conclude agreements modifying or superseding the operation of the dispute resolution provisions of the LOSC.^^ Therefore 64 Order of 3 December 2001, The MOX Plant Case, para 53. 65 MOX Plant Case, Separate Optiiion of Vice President Nelson, para 7. Paragraph 51 of tiie Order of the MOX Plant Case considered 'tiiat tiie application of intemational law rales on interpretation of tieaties to identical or stinilar provisions of different tieaties may not yield tiie same results, havuig regard to, inter alia, differences ui tiie respective contexts, objects and purposes, subsequent practice of Parties and tt-avaux preparatoires\ 66 Article 280 of tiie LOSC. 67 Article 311 of tiie LOSC. -329- LOSC's mteraction with other freaties may create problems where such freaties overlap in subject matters and exclude adjudication or arbifration witiiout the express consent of individual states. Such any treaties providing for an ahemative form of dispute resolution can supersede LOSC's compulsory adjudication.^s The Southern Bluefin Tuna Case is an example in this respect, where compulsory adjudication under the LOSC was undermined by a small trilateral regional agreement, the Convention for the Conservation of Southern Bluefin Tuna (CCSBT).^^ The Arbitral Tribimal concluded that LOSC 'falls significantly short of establishing a tmly comprehensive regime of compulsory jurisdiction entailing binding decisions'."^o This award supported the adoption of consent-based agreements and challenges the viability of the continuing compulsory nature of LOSC's dispute resolution regime."^' 68 Sturtz L, 'Southern Bluefm Tuna Case: Austiaha and New Zealand v Japan', Ecology Law Quarterly, 2001, Vol 28 at 467. 69 In this case Austtaha and New Zealand sued Japan for overfishuig of the Southern bluefm tuna. Austtaha and New Zealand argued that Japan violated obhgations imder botii the Convention for the Conservation of Soutiiem Bluefm Tuna (CCSBT) and tiie LOSC. Altiiough tiie ITLOS issued protective provisional measures agauist Japan the Arbittal Tribunal found tiiat it was an issue under tiie CCSBT tiierefore undermuiuig LOSC Part XV. (Southern Bluefin Tuna Case, Award on Jurisdiction and Admissibility, August 4, 2000, 39 ILM 1359 (2000) para 66. 70 Southern Bluefin Tuna Case, Award on Jurisdiction, ibid para 62. 71 See Article 16 of tiie CCSBT; Stiirtz L, 'Soutiiem Bluefm Tuna Case: Austiaha and New Zealand v Japan', supra note 68 at 479. However, in tiie Soutiiem Bluefin Tuna Case, Justice Sti Kennetii Keitii came to very different conclusion, i.e.: tiiat ITLOS had jurisdiction because Article 16 of tiie CCSBT did not exclude such jurisdiction (Southem Bluefin Tuna Case. Award on Jurisdiction, ibid at 1401 para 30). -330- Above all, it is necessary to bear in mind that the application of provisional measures, as in the MOX Plant Case, are temporary. The final determination of this case will depend on the decision of another Arbifral Tribunal, which is yet to be estabhshed for this case. Therefore, whether that final Tribunal will undermine the ITLOS's provisional prescription, as in the Southem Bluefin Tuna Case is yet to be seen. However, whatever the outcome may be, it is clear that the status of LOSC's compulsory adjudicative system is unclear and needs clarification. Therefore, a broader framework with sttong compulsory procedure is needed. This sttong procedure will promote effective cooperation in LBSMP confrol. 8.3.3 (c) Crucial Need for Capacity Building Currently there are no frameworks for capacity building in the hard law on LBSMP. fri the soft law, Agenda 21 emphasises sfrengthening marine environmental capacity through capacity building.72 The GPA more specifically sfresses regional cooperation to enhance capacity building for LBSMP confrol under its program support measures.^^ fr has been noted earlier that LBSMP regimes will not be implemented unless material and mtellectual resources, such as fimds, technology and qualified persons are available. The GPA's effectiveness in providmg these is still in question. Cooperative arrangements should play a cenfral role m thefr delivery.74 72 Agenda 21 Chapter 17.117 and 17.121. See also Chapter 5.4.3.2, supra 73 The GPA paras 28, 32, 45 and 50. See Chapter 5.4.5 supra. 74 United Nations Envtionment Programme, Global Environmental Outlook, UNEP Global State of the Envtioiunent Report 1997. -331- (i) Funding and Technology Transfer Existing arrangements have not provided sufficient inducements for LBSMP confrol by way of information exchange, technical cooperation and financial assistance. For example, several plans have been adopted in the Caribbean and Black Sea areas for sewage freatment, but such discharges are still abundant in those seas. The main reason is the lack of adequate fimding. Since most of the developing countries are stmggluig for thefr basic needs, LBSMP control can not be addressed by them without special financial inducement and assistance."^^ Control efforts require technological development, especially to collect and gather scientific data to identify sources.'''^ Perceived costs of this technological challenge undermine the resolve to meet it. Thus, protection of tiie marine envfronment from LBSMP has been sacrificed for economic reasons in many developing countries and countries with fransitional economies. To be responsive to pollution control operations, substantial fmancial appropriations are requfred. For example, in the Meditenanean Sea alone, adequate confrol of LBS is estimated to cost between 25 and 100 billion US dollars over the next 20 years.^^ The 75 For an example see Chapter 7, supra See also Chapter 3.3 supra. 76 See Chapter 3.2 supra. 77 NoUkaemper A, 'Balanctiig tiie Protection of Marine Ecosystem witii Economic Benefits from LBA's - tiie Quest for International Legal Barriers', Ocean Development and International Law, 1996, Vol 27, at 154. -332- action program for the Baltic Sea is expected to have spent 18 bilhon US doUars over the 20-year period from 1993 to 2012.^8 Similar financial challenges for capacity building have been encountered m the Wider Caribbean Region. In 1995, an NGO, the Marine Pohcy Cenfre, made an attempt to assess the capacity to confrol LBSMP in the Wider Caribbean Region. This study took into account the economic and institutional capacities and economic incentives of the regional states to take corrective action to mamtain a healthy coastal environment. The assessment of Marine Pohcy Cenfre indicated that there is a strong connection between the standard of living, institutional capacity, economic incentives and confrol of LBSMP. Conclusions derived from the study indicate that development of LBSMP confrol is mainly confined to countries where adequate supports are available. For example, the US and US Virgin Islands are financially and technologically sfrong and likely to engage in sustained and effective confrol of LBSMP. However, countries such as Guatemala, Honduras, Nicaragua, Panama, Guyana and Haiti severely lack financial and technical capacities. Due to their mcapacities, they are not motivated to improve the quality of the marine and coastal environment. Thefr overall prospect to confrol LBSMP is very low. It is least hkely that they will participate in sustamed and meaningful confrols over LBSMP without special assistance and inducements. The assessment of the Marine Policy Cenfre also indicated that majority of the countiies of this region such as Antigua, Aruba, Bahamas, Barbados, British Virgin Islands, Jamaica, Montsenat and St. Lucia, have strong economic incentives to confrol LBSMP. However, with few exceptions, such as Aruba, Bahamas and British Vfrgin Islands, they all lack both 78 Lotiiigius J, Enviro, Vol 20, April 1996. -333 economic and technological capacity to effectively address the problem. Some of them such as Jamaica and St. Lucia have a serious need for economic and technical assistance to deal with this issue. The findings highhghted the importance of intemational financial and technological assistance in effectively controlling LBSMP in developing countries. Developing countries that are economically and technologically handicapped are less likely to effectively participate, either in the protection of the marine resources in a sustauiable manner or in the effective confrol of LBSMP, although many of them have sfrong economic reliance on marine and coastal resources. -334- FIGURE 8.1: QUALITATIVE RATINGS OF CAPACITY AND INCENTIVE TO UNDERTAKE LBSMP CONTROL Please see print copy for image Source: Schumacher M, Hoagland P and Gauies A, 'Land-based Marine Pollution tii tiie Caribbean'. Marine Policy, (1996), at 114. -335 FIGURE 8.2: RELATIVE CAPACITIES AND INCENTIVES TO CONTROL LBSMP THROUGHOUT THE WIDER CARIBBEAN REGION Please see print copy for image Source: Schumacher M, Hoagland P and Gauies A, 'Land-based Marine Pollution ui the Caribbean', Marine Policy, (1996), at 116. -336 The findings from the Wider Caribbean Region can be generalised to other developing and small island countries experiencing fimduig and technological difficulties in LBSMP confrol, in ahnost the same way.'79 (ii) Public Participation, Awareness and Education Public participation rights can enable people to actively promote LBSMP contiol.^o Calls for public participation were reflected in the institutional anangements of UNEP's Regional Seas Program. However, in relation to LBSMP confrol, no regional or intemational instmment, with the exception of the Protocol on LBSMP in the Wider Caribbean Region, contains provisions designed to increase the opportunity for public participation in marine environmental protection from land-based sources.^ ^ Currently, public participation in observation and monitoring, access to information about the marine environment, and public rights on marine enviromnental issues are at very primary stage in most developing countries. A legal framework for effective intemational cooperation on LBSMP confrol could seek to facihtate wider public involvement in developing countries. 79 For example see Chapter 7.5 supra and see also Chapter 3.3 supra. 80 The unportance of pubhc participation has been widely accepted for LBSMP contiol. See Chapter 4.8 supra. 81 Article X of tiie 1999 Araba Protocol states: 'Each Conttacting Party shall, ui accordance witii its national laws and regulations, promote public access to relevant information and documentation conceming pollution of tiie convention area from land-based sources and activities and the opportunity for public participation in decision-making processes concenting tiie unplementation of this Protocol.' -337- (iii) Political Commitment Although the LOSC and UNEP Regional Framework Conventions contain general provisions on LBSMP they leave responsibility for designing conttol actions solely at the discretion of individual Parties. Only seven regions have adopted conventions or protocols on LBSMP entailing specific control actions and there are problems with the national implementation of those. For example, under the Baltic Sea Conventions^ HELCOM has no independent authority, and therefore implementation is often poor in countries in economic transition. Implementation is slow in post-Communist States. There is also political pressure in many developing countiies to industrialise rapidly at the expense of the envirormient. ^^ Practical outcomes from marine environmental conferences can be achieved only when States implement conference recommendations. Gerges, who had been headmg UNEP's Oceans and Coastal Areas Programme, and was responsible for organismg the Washington Conference that adopted tiie GPA, stated that: The fmalization of the program of action is a major accompUshment for tiie uitemational community. However, for it to be more tiian a just anotiier document, governments will need to show serious pohtical commitment to implement it. ^4 82 See discussion of domestic unplementation of Baltic Sea pollution commitinents tii Chapter 6 supra. 83 Ktiidt J, 'International Envtionmental and Policy: An Overview of Trans-boundarj- Pollution', San Diego Law Review, 1986,Vol 26, No 3 at 587. 84 Washington Conference 1995 - Fmal Press Release, at 2. -338- The GPA has generated research and public attention in some areas but implementation of conttol measures recommended under the action plan is still in question in many parts of the oceans.^^ Cultiu-es of non-comphance, and absence of political accountabihty or civil liability, are manifestations of lack of pohtical will. Low public pressure to control marine pollution at national level, inter-sectoral conflicts in marine environmental management and weak environmental bureaucracy result m pohtical reluctance to become involved m envfronmental issues, fr is seen as a fiitile exercise.86 And sometimes, just lack of motivation, comiption, political instability or armed conflict contribute towards non-implementation. Confronting these factors is a huge challenge for intemational cooperative anangements. 8S Chapters 6 and 7 of this thesis could be an example in titis respect. This view was identified by most of the participants in The Role of Young People ui Environment Decision-Making, Intemational Forum on Envtionmental Research, Education and Management, held 12 November 1999 at the University of Wollongong. A high level Seminar on Cleaner Production was held in Seoul from 29 September-1 October 1998. In relation to Regional Implementation and Monitoring of Cleaner Production this seminar identified key barriers to implementation to cleaner production in different regions of the world, which are similar to those of the above. (See UNEP, Industry and Environment, October-December 1998, Vol 21 No 4 at 10- 11). -339- 8.4 FOUNDATION OF A NEW MODEL FOR EFFECTIVE COOPERATION FOR LBSMP CONTROL 8.4.1 Effective Cooperation as an Imperative for LBSMP Control fr was observed in Chapters Six and Seven that there is a wide gap m capacities to implement environmental treaty and pohcy commitments between developed countries, countries in economic transition and developing countries. Generally, national compliance with environmental treaty commitments has always been uncertain. ^^ State practice m relation to LBSMP confrol is exfremely uncertam, and far from adequate in many regions, of the world's oceans, such as the Bay of Bengalis Most of the countries of the world are unable to effectively deal with the wide variety of land-based pollutants. National implementation is exfraordinarily complex and there is no single template according to which intemational commitments can be put into national practice. Implementation of commitments can affect a wide range of socio-economic interests on the national plane. Boyle has noted: In regards to LBSMP states did not wish to commit themselves to the same level of sttong intemational conttol imposed on pollution from ships. The social and economic costs of such measures were seen as unacceptably high.^^ Therefore, rehance on national confrols alone wiU not effectively protect the marine environment from land-based sources. Intemational involvement might reinforce efforts for LBSMP confrol, particularly in regions where countiies are all developmg. 87 Cadwell LK, 'Necessary for Organizational Change: Implementuig tiie Rio Agenda of 1992' in Bartlett R V, (et al), Intemational Organizations and Environmental Policy, (Greenwood Press, London, 1995) at 33. 88 Chapter 7 supra, is an example. 8" Boyle AE, supra note 19 at 26. -340- Financial and other intemational assistance can facilitate national confrol there, hi otiier words, effective solutions to this problem require bridges between mtemational and national levels of effort. This entails coordination and integration of complex political and economic elements, balancing State interests, capabilities and commitments at national, regional and intemational levels. It would be useful to harness and coordinate activities of non-State actors such as scientists, environmental groups, and intemational institutions.^^ It has been observed earher that co-operation is a mutually beneficial exchange for the purpose of achieving a common goal to control LBSMP.^i A cooperative approach has been recommended at different levels in many Declarations and Resolutions for the protection and preservation of marine environment from LBS.^^ Although cooperation is cmcial for the effective confrol of LBSMP, there is debate about the varying opportimities for intemational cooperation. It is suggested here that cooperative arrangements can be established at both global and regional levels. In fact, the best approach suggested is to build up an interlinking arrangement of regional and global agreements based on pro-active cooperation among States. 90 Victor DG (et al), 'Intioduction and Overview', tii Victor DG (et al). The Implementation and Effectiveness of International Environmental Commitments: Theory and Practice, (Intemational Institiite of Applied System Analysis, 1998) at 4. 91 See discussion tii section 8.2 of titis chapter. 92 It has been identified in all UNEP Regional Action Plans, tiiat Cooperative actions are needed to address LBSMP. -341- 8.4.2 Interlinking Regional and International Cooperation The particular natiire of a specific LBSMP problem is the most unportant factor m determining whether to adopt a regional or global approach. But it is sometimes difficuh to conclude which problems need to be addressed exclusively at global or regional levels respectively because even those problems that are predomuiantly regional often invfre global involvement due to thefr exfra-regional impact, or simply because tiiey require exfra-regional resources for their solution. Any level of cooperation is attended with problems. However, cooperation at a regional level appears to be less problematic than at the intemational level.^^ Yamin has pointed out that the regional approach is well suited to give effect to environmental obligations. According to her, the regional approach: • increases the number of common environmental interests; • implements global agreements through increased regional actions; • facilitates a collective regional approach to donors about funding and success in securing funding; and • may be more successful in increasing participation from a broader national constituency than global agreements.94 93 See also Chapter 6.2 supra. 94 Discussion From Yamin F, 'A Case Study of a Regional Approach to Compliance witii Cites in Soutiiem Africa', ui Cameron J (et al). Improving Compliance with Intemational Environmental Law, (Foundation for Envu-onmental Law and Development, 1996) at 200-203. -342- To address the unmediate consequences of a particular LBSMP problem, and appropriate solutions to that particular problem, cooperation is more likely to be usefiil at the regional level than at the global level. This is because the global responses encompass a wider variety of ideologies and political objectives, inequahties m economic growth and social development of states, as well as greater differences m cultiu-al background. All of these global factors create a complex context, mimical to efficient law making and implementation at national level.95 However, exclusively regional approaches are not always satisfactory. For example, in Chapter Six it was observed that better implementation is achieved in regions where developed or jomtiy developed and developing countries are the Parties to an anangement. Where only developing countries are the Parties, thefr lack of financial and technical resources obstmcts improvements in LBSMP control. The issue of intemational cooperation was highlighted in the Advisory Committee on Pollution of the Sea (ACOPS) submission to the Inter-govemmental Meeting of Experts on Land-based sources of Marine Pollution in Halifax in 1991. In relation to LBSMP confrol the ACOPS Submission stated that: • any meaningful program for protecting marine environment from land-based sources of pollution must begin with, and be based primarily on action at the national level; • effective protection of the marine envfronment from land-based sources requires, in most cases, a measure of inter-State cooperation, mainly at regional level; and 95 Bennet AL, International Organizations: Principles and Issues (Prentice Hall Inc: New Jersey, 1977) at 289-90. -343- • a comprehensive program for the protection and preservation of tiie marine environment from land-based sources must have a global component.^e According to this subnussion, efforts from all levels and effective linkages between them are requfred to protect the marine environment from LBSMP, albeit emphasis is placed on regional cooperation. Many academic scholars support this approach.^^ 96 Advisory Committee on Pollution of tiie Sea (ACOPS) (1991). The Legal Regune of Land-based Sources of Marine Pollution. Paper submitted to the uiter-govemmental meeting of experts on land- based sources of marine pollution, Halifax, 6-10 May 1991. (Quoted from Cote RP, 'Marine Envu-onmental Management', Marine Pollution Bulletin, 1992 at 18-19. 97 Rose, for example, notes three reasons for adopting this approach: Land-based sources of pollution are most acutely felt and most likely to cause injury in the immediate area of release; Regional groupings of states are more Iticely to have comparable levels of industrial and agricultural infrastmcture, as well as comparable levels and types of waste generated by coastal population centtes; Regional groupings of states are more likely to have a similar capacity to compensate damage. (Rose G and Tarasofsky R, 'Liability for Enviromnental Damage in Intemational and Trans-boundary Settings', supra note 56 at 441. See also Men Quing-nan, Land-based Marine Pollution International Law and Development, (Graham and Trotinan/Martinus Nijhoff, 1987) at 217-18. In favour of regional approach he states: (i) The major sources and contanunants vary from region to region. For example, agricultural activities are not flie major source of LBMP tii flie North Sea but are flie relatively important contiibutors to pollution tii tiie Baltic and the Mediterranean; (ii) tiie very objectives of LBSMP conttol can vary from region to region. For example, the protection of tiie marine envtionment for recreational use is not a major concem tii tiie North Sea but it is one of tiie priorities in tiie Mediterranean; (iii) Envtionmental capacity varies from region to region owuig to variations in the exchange rates of sea water between tiie regional sea and open sea, tiie temperauire and saluiity of tiie sea water, tiie ecostiiictiure of tiie maruie envuonment, and clumatic conditions. -344- The same approach is taken m this stiidy. While regional cooperation should be tiie primary mechanism for LBSMP confrol, such regional focus must be interlinked with a global framework for more effective and efficient confrol through intemational sharing of commifrnent and resources.98 This mterlocking model should facilitate tiie involvement of all types of actors in a regime of vertical and horizontal cooperation. Horizontally, it should mclude the UNEP, and other intemational and regional organisations, agencies, programs and fimds for LBSMP confrol measures. Vertically mterlinked regional cooperation should encourage relevant actors and Parties to contiibute towards implementation of plans and pohcies related to LBSMP confrol. 8.4.3 Addressing Liability, Dispute Settlement and Capacity Building in a New Cooperative Approach Liabihty is closely related to the adoption of regulatory standards.99 However, specific regulatory standards for LBSMP confrol are rare m present regimes. If such standards are adopted at regional and intemational levels, the task of identifying threshold compensable damage from LBSMP would become easier.'oo Conversely, the development and harmoiusation of the present laws and policies relating to liability and compensation would stimulate, as a risk avoidance sfrategy, the elaboration of specific and enforceable standards for LBSMP confrol. Demonsfrable compliance with accepted standards would then form evidence of the discharge of due dihgence responsibilities in LBSMP confrol. 98 See section 8.2 of this chapter. 99 Sands P, supra note 7 at 637. 100 Sands P,/6zW. -345 Thus, as a tool to estabhsh hability, the LOSC's CDS procedures could sunilarly promote, although to a lesser extent, LBSMP control. Therefore, it is desfrable to reduce, if not resolve, the LOSC's jurisdictional woes and to clarify the apphcation of the compulsory procedures. Sfrong compulsory procedures that are more explicit, so that less interpretation is requfred, and that stimulate more a harmonious approach between the LOSC and regional treaties are needed, 'oi The development of a firm jurispmdence, building on the foundations set in the MOX case, and tiie adoption of dispute resolution procedures that relate directly to the LOSC CDS system, such as are set out in the 1995 United Nations Straddling and Highly Migratory Fish Stocks Agreement^^^ would satisfy this need for strong compulsory procedures. Reinforcement of capacity building is a critical need for effective confrol of LBSMP. In terms of effective capacity building, the cunent trends in cooperation fall far short of optimal willingness. A global framework for enhanced intemational cooperation with continuing economic and political development that increases the abihty of states to franslate intemational obligations into coherent and effective domestic legal and policy reforms is therefore essential. Taking lessons from the experience and carrying it further leads to the task of builduig a broad-based enforceable cooperative arrangement for LBSMP confrol. 101 Stiirtz L, 'Soutiiem Bluefm Tuna Case', supra note 68 at 484. 102 34 ILM (1995) 1542 -346- 8.5 Towards an Enforceable International Cooperative Arrangement to Control LBSMP This sttidy has highlighted meaningfiil cooperation as the fimdamental prerequisite for effective confrol of LBSMP. One way of fostering cooperation is estabhshmg positive goal relationships among potential and actiial participants. Successfiil cooperation is manifested in more coordination, more helping, more communication, and more division of laboiu.i03 New ideas and new forms of cooperation are needed to achieve this in the context of LBSMP confrol. Ideally, a broader and deeper cooperative approach would address the process by which states, groups and organisations come together, mteract, and form relationships for mutual gain or benefit. Cunent LBSMP confrol regimes lack strong cooperative relationships which are based on socially contrived mecharusms for collective action, and continually shaped and restmctured by the actions of the Parties involved. The continued study of cooperative relationships in organisational contexts may lead to new ideas which are better able to capture the complexities of LBSMP control. It is to be noted that either directly, or by means of goal relationships, institutional and political constraints affect continuing cooperative relationships. The disparities in political and economic conditions of countries contributing to, and affected by, LBSMP make it imperative to set up an effective framework for econonuc cooperation for LBSMP conttol by fostering 'intta' and 'inter' regional and intemational cooperation. This framework could be premised on global public-private partnerships (GPPP), transcending national boundaries and ensuring cooperative partnership on both the 103 Argyle M, Cooperation: The Basis of Sociability, (Routiedge: New York, 1991) at 127. -347- vertical and horizontal planes. By effectively involvmg not only the governments that usually have authority over LBSMP contiols but also intemational and regional organisations, the business community and civil society, the 'top-down' approach of integrated and sustainable management of the marine and coastal envfromnent will be balanced with the 'bottom-up' approach of hstening to the voices of tiie community. The United Nations Convention to Combat Desertification can be used as a model in this context, fr is a legally bmding agreement between and among developed and developing countiies on the need for a global union to address desertification. This Convention highlights coordination and cooperation at all levels as one of the key issues of effective implementation. It provides a framework in which developing countries, donor agencies, inter- govemmental and non-govemmental organisations and local populations can join in a spirit of partnership for successi04. it emphasises concrete national commitments, particularly at the local level, and places importance on implementation mechanisms.'o^ Taking into account the bottom-up approach, this agreement clearly emphasises the 'participation of populations and local communities'i°^ to facilitate action at national and local levels. 1°'' Conversely, it also stresses the need for 'international sohdarity and 104 Dooley EE, 'United Nations Convention to Combat Desertification', Environmental Health Perspectives, Feb 2002, Vol 110 at 77. 105 Part III of the United Nations Convention to Combat Desertification, UN Doc.A/AC. 241/151 Rev. 7, reprinted tii 33 ILM (1994) 1328, Articles 10-21. 106 Article 3(2)(a). 107 United Nations, UN Chronicle, Sununer 1997, Vol 39 at 27. -348- partnership', improvement in cooperation and coordmation at Sub-regional, regional and intemational levels, and better focus on financial, human, organisational and technical resources where they are needed'.lo^ it emphasises 'cooperation among all levels of govemment, communities, and non-govemmental organisations ... to establish a better understanding'lo^ in work towards the sustainable use of resources. I'o Thus, it acknowledges the importance of civil societies and non-govemmental organisations^'' and underlines the importance and necessity of intemational cooperation and partnership for implementation.''^ Although national efforts are important, they must be interlinked with others in the elaboration and implementation of action programs. To increase the efficiency of national action programs they must be carried out 'in a spirit of partnership between the donor community, governments at all levels, local populations and commimity groups'.''^ The Convention generally obliges State Parties to improve coordination efforts and to develop a coherent long-term sfrategy within inter-govemmental organisations, withm regions and sub regions and intemationally. "4 it emphasises unproved use of existing financial mechanisms and arrangements that mobilise and channel financial 108 Article 3(2)(b). 109 Article 3(2)(c). 110 Buitie PW and Boyle AE, supra note 12 at 88. 111 Article 5(d). 112 Preamble of tiie Convention. 113 Article 10(2)(e). 11'* Article 4. -349 resources. 115 in this context fr obhges developed countiies to provide financial resources and other forms of support to effectively develop and implement plans and sfrategies to combat desertification.n^ Parties agreed to provide appropriate training and technology in the use of alternative energy sources, sfrengthen the capacity to collect, analyse and exchange scientific and technical information and to promote wide and permanent public participation in education and awareness activities, n'^ In terms of scientific and technological issues. Parties agreed to facilitate the financing of the fransfer, acquisition, adaptation and development of environmentally sound, economically viable and socially acceptable technology. 118 It addresses the specific needs of local populations and emphasises the way through which local populations can make use of scientific knowledge, and contribute to protect, integrate, enhance and validate tiaditional and local knowledge, know-how and practices."^ Parties agreed to undertake and promote joint research programs between national. Sub-regional, regional and intemational research to develop technologies through effective participation of local populations and communities. 120 115 Article 4(h). This way the Convention tries to uitegrate envtionmental protection and economic development. (Buitie PW and Boyle AE, supra note 12 at 86). 116 Article 6(b). 117 Article 19. 118 Article 18(1). 119 Article 18(2). The unportance of this grass roots participation was addressed with a belief tiiat local people who live off tiie land know more tiian anyone else about tiie fragile ecosystems ui which tiiey hve and work, and are tiius in tiie best position to contiibute to tiie fight (United Nations, UN Chronicle, Summer 1997 Vol 39 at 27). 120 Article 17(f). -350- The Convention also commits Parties to integrate and coordinate the collection, analysis and exchange of mformation through a global network of instittitions and facilities. 121 The Convention formulates a global mechanism to increase the efficiency of financial resources and to promote actions leading to thefr mobilisation and channelling. 122 This mechanism is based on innovative methods of raising money to help and unprove the activities at national levels, uicluding unprovement of all national, bilateral and multilateral funding sources and mechanisms, using consortia, jomt programs and parallel fmancing. 123 To channel financial resources rapidly and efficientiy to the local level, Parties are to consider the adoption of fimding policies such as national desertification fundi24 and are to assist developing countries to meet their obligations.'25 Fulfilment of the obligations of developed countries on financial assistance and technology fransfer in particular, are preconditions to implementation by developing countries of their obligations. 126 Further important lessons could be drawn from the 1995 United Nations Straddling and Highly Migratory Fish Stocks Agreement.'^^'^ It seeks to overcome the imprecise obligation to cooperate between coastal states and high seas fishing states regarding 121 Article 16. 122 Article 21(4). 123 Article 20(4). 124 Article 2l(l)(d). 125 Article 21(2). 126 Article 20(7). 127 34 ILM (1995) 1542. -351- stiaddling and highly migratory stocksi28 by establishing mles and a framework for cooperation for the achievement of a sustainable regune for such stocks. This agreement takes the bottom-up approach, accepting the coastal States' exclusive rights within areas under national jurisdiction in management measures, which the regional fisheries organisations will consider m respect of high seas management measures. 129 fr also inserts a top-down approach, promotmg the responsibihty of regional fisheries organisations for management measures of all fish stocks in the areas on the High Seas, that coastal and distant water fishing states will give effect to.i^o All these provisions tend to foster a greater consistency in conservation measures for both the EEZ and the High Seas.i3i To achieve the goal of sustainability of fisheries stocks, this Agreement obliges states to work through existing sub-regional or regional organisations and anangements, or by establishing new arrangements, or by extending existing anangements for conservation and management of sfraddling fish stocks or highly migratory fish stocks. 122 128 Oda S, 'Fisheries Under the United Nations Convention on the Law of the Sea', American Joumal of International Law, 1983, Vol 77 at 739. Article 63 of tiie LOSC creates tiie obligation of cooperation between coastal states and fishing states ui stiaddluig stocks. Because of uncertauities of titis Article many problems have arisen in relation to stiaddling stocks. These uiclude conflict between coastal States and fishuig States and overexploitation of sttaddltiig stocks. 129 Article 7(1) of tiie 1995 United Nations Sttaddltiig and Highly Migratory Fish Stocks Agreement. 130 Article 7(2). 131 Joyner CC, 'Compliance and Enforcement in New Intemational Fisheries Law', Temple International and Comparative Law Journal, 1998, Vol 12 at 299. 132 Article S, ibid. -352- By vfrttie of Article 12 relevant NGOs have a right to take part in the regional fisheries bodies. 133 Thus, it underlines the importance of non-State actors to sfrengthen regional and subregional organisations on fisheries management and to ensure comphance and enforcement of management measures for entire fish stocks. i34 fr also seeks cooperation for the purpose of financial assistance, technical assistance for framfrig and capacity building at the local level, development of funding of national and regional observer programsi35 and to establish a special fimd to assist developing states in the implementation of the agreementi36 and prevention of disputes m relation to fisheries management. 137 The Bonn Convention'^^^ could also be instmctive since this Convention's provisions are built on cooperative values. It provides a framework within which States can cooperate in undertaking scientific research, restoring habitats, and removing impediments to the migration of endangered species.'39 fr imposes mandatory obhgationsi4o on States and also promotes best endeavours conservation measures. 133 Bimie PW and Boyle AE, supra note 12 at 217. 134 Article 20. 135 Article 25 (2) and 25 (3). 136 Article 25(1). 137 Article 28. 138 Convention on the Conservation of Migratory Species of Wild Anunals (Bonn Convention), 19 ILM (1980) 15. 139 Article II (3) of the 1979 Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention). Bunie PW and Boyle AE, supra note 12 at 622. 140 Appendix I. -353- These legal frameworks emphasise grass roots, local and regional approaches to address infractable problems. Particularly, the Convention to Combat Desertification encompasses an mter-locking anangement of local, regional and global dimensions for economic cooperation through partnership building. This legal framework can be used as a model to confrol LBSMP. By departmg from tiie existing cooperative regime of LBSMP confrol, it could promote a 'changing landscape of econonuc collaboration' by bringing together a number of different partners in intemational, regional, and local arenas. The comerstone of this mechanism would be 'more actors - much closer involvement' to successfully reach the goals of LBSMP conttol. It will promote effective economic and social reforms, the establishment of a vigorous market economy, and the development of civil societies. In this way, it will help create a strong institutional base at regional and intemational levels for successful contiol of LBSMP. In terms of an enforceable cooperative anangement, this interlocking global-regional regulatory framework will facilitate formal cooperative relationships on economic matters and help to sttengthen capacity building measures for LBSMP conttol. The proposed cooperative anangement will provide increased opportunities for LBSMP confrol at the national, regional and intemational levels on a continuing basis, by: • developing and sfrengthening the institiitional framework of cooperation; • sfrengthening the economic base through investinent m marine envfronment related mfrastmcture to improve LBSMP conttol efforts; 354 • promoting new market opportunities for local private sector actors for improved management of LBSMP control; • creating new opportunhies, raising the productive potential of poor countties through alleviation of poverty and institutional sustauiability; • broadening muttial mterests and changing public attittides on marine envfronmental practice; • improving environmental behaviour of polluters by taking into account comprehensive clean-up projects, waste prevention audit and instittitional development as means of economic improvement; • unproving community participation and evaluation through a greater availability of infomiation, and a greater dissemination of information on LBSMP ; • eliciting responses from the public sector to concems and vocal demands for envfronmental liability for pollution; and • enhancing mutual relations between governments by effectively settling disagreements on LBSMP issues. In summary, the impact of the adoption of this proposed model will be enormous. As a cooperative mechanism, this new model will be primarily dfrected towards laying down ways and means for enforcing the cooperative arrangement at regional and intemational levels by bringing together a set of actors for the common goal of improving the health of oceans from LBSMP. In terms of tackling the challenge, this framework will link economic development, regulation, and LBSMP confrol. 355 8.6 CONCLUSION This chapter has revealed that the cooperative approaches backed up by the LOSC, the Montreal Guidelines, Chapter 17 of Agenda 21 and the GPA, and regional agreements are impressive efforts as they contain provisions dfrected to bringing together coimtries with commonality of interest to address marine environmental problems and conttol LBSMP. These cooperative activities have been developed mainly within the framework of United Nations system, and in this respect UNEP is the most unportant organisation through its Regional Seas Program. However, they have been identified as inadequate and not fully effective. There exists a gap between commitment and cooperative action in the present regunes of LBSMP confrol. The Earth Sununfr 1992, and the GPA 1995 in particular, took intemational cooperation to a new level. These instmments enabled the intemational community to plot a new, coherent course of development for a new era in confrol of LBSMP. But they also showed that the role of the governments is becomfrig more complex, and requfres greater cooperation and alliances between governments, regional and intemational organisations, tiie private sectors, civil societies and NGOs for better control of LBSMP. AU these observations indicate that the present cooperative anangements need to be sttengthened to approach tiie effective conttol of LBSMP. An innovative sfrengtiiening step has been proposed in this sttidy. fr is tiie fonnulation and unplementation of a broad-based, enforceable global freaty to promote multifaceted cooperation to conttol LBSMP. Thus, it would interlock intta-regional and mter-regional cooperation within of global framework of capacity-building mechanisms and would facilitate intemational 356 partnerships between governments and private sector actors. It would significantly contribute to the effective control of LBSMP. 357 CHAPTER 9: CONCLUSION The objective of the research undertaken has been to identify the major sources of LBSMP and examine the adequacy and inadequacy of present legal regimes for thefr control. In doing so, it provides an integrated and updated survey of the legal hterattire on this topic. Most importantly, the research analysis has been dfrected towards unprovmg the design of legal regunes for LBSMP control. Chapter One infroduced tiie nature and importance of LBSMP and the research questions. It also developed tiie methodology for investigatuig those questions. Essentially, this was to identify the scientific, legal and economic barriers to effective LBSMP confrol and the shortcomings in global and regional instmments when compared to the benchmarks set out in widely received environmental management principles and actual practice as examined through a case study. Identification of barriers and shortcomings would indicate what sorts of solutions are needed. Chapter Two identified the sources and effects of LBSMP. A conceptual framework on contaminants and pollution were developed and various types of pollutants, thefr pathways and their impact on the marine environment were studied in this chapter. In Chapter Two, it was concluded that LBSMP are complex in nature and their effects on the marine and coastal environment are disasfrous. Most LBSMP are national in nature and their impacts are local inshore. However, they also have hmited frans-boundary unpacts in enclosed and semi-enclosed seas and lesser cumulative impacts in oceanic waters.! These cumulative impacts are characteristic of POPs that are sufficiently tiansported as to have global impacts. Therefore, a global regime is required for 1 See Chapter 2.8 supra. -358- effective confrol of LBSMP. Such a regime is necessary to facihtate intemational cooperative action to share resources and committnents for efficient national, regional and intemational control of LBSMP. A number of scientific, economic and legal conceptual problems were highlighted in Chapter Three. Issues relating to scientific data collection, identification of sources, and determination of damage were surveyed and establishing a legal threshold for enviromnental damage was identified as problematic. The perceived impacts of economic and environmental costs of LBSMP were criticaUy discussed and issues of territorial sovereignty linked with LBSMP were found to be barriers to cooperative solutions. In the light of overcoming these emerging problems. Chapter Three concluded that, although the concept of absolute sovereignty has undergone significant changes in favour of intemational environmental confrols, scientific, economic and legal conceptual problems still undermine contiol measures on LBSMP m virtually all regional seas. Solutions to these problems require irmovative management responses. Intemational principles relevant to the management of LBSMP were considered in Chapter Four as benchmarks for assessing the present regimes of LBSMP conttol. hi this regard, tiie role, scope, and limitations of the principles of sustainable development, integrated coastal zone management (ICZM), environmental hnpact assessment (EIA), precautionary principle, polluter pays principle and cleaner production, were studied and analysed. It was noted that despite shortconungs in thefr unplementation, these principles have been well received by tiie mtemational community. They provide strategies, programs, and above all, policy tools for sustainable management. They provide new understandings of pollution prevention, such as prior assessment of proposed activities, anticipatory management actions, shifting of the cost burden, and -359- utihsation of clean technology. Although they axe hnportant to LBSMP conttol. Chapter Four does not address thefr incorporation m legal uistiimients relevant to LBSMP. Their incorporation can be seen in Chapter Five. The cunent intemational legal regime of LBSMP conttol was then evaluated in tiie context of effectiveness in Chapter Five, fri this regard, various principles of customary intemational law (CIL), early intemational instiiunents and hard and soft law mstruments on LBSMP were analysed, fr was concluded that a well-stmcttued regime witii some instinctive approaches on LBSMP exists at a global level. However, a concrete, legally binding agreement on intemational cooperation to confrol LBSMP has not yet been forthcoming at this level. Most of the environmental management principles are absent in hard law instruments. The application of these management principles have been recommended in soft law instruments. However, these recommendations remain largely unimplemented due to the non-bmdmg nature of soft laws. While current intemational anangements for LBSMP confrol are unsatisfactory and not yet effective, regional approaches do complement them. The analysis of regional anangements in Chapter Six revealed that, in general, regional approaches have proved useful in promoting political awareness and commitments to LBSMP control. However, generally, regional anangements still tend to lack specific operational measures, authoritative institutional and binding legal anangements and management instruments. Many regional seas are lacking a LBSMP protocol. Many regions, such as South Asian Seas, do not even have a general legal framework to contiol LBSMP. Also, although most management principles and other necessary standards, including best available technology and environmental practice, have been undertaken in some regions, as in the North East Atlantic, Baltic and Meditenanean -360- seas, most of the regional seas are lacking in this respect. With tiie exception of tiie 1996 Meditenanean Protocol, the polluter pays principle and precautionary principle are absent in the text of UNEP regional legal agreements. AU these mdicate that significant developments in LBSMP confrol measures have been achieved m those regions where developed countiies that are not in economic fransition are in the majority among tiie participants. LBSMP control measures are quite inadequate m regions where only developing countries are the Parties. Chapter Seven then took the Bay of Bengal Sub-region m Soutii Asia as a case smdy to show the deficiencies of developing country regional, sub-regional and national LBSMP confrol unsupported by a bindmg global regime. Analysis of the systemic reasons for these deficiencies suggested that the solutions would require extemal inputs, such as finance, facilitation and technical assistance. In the hght of these findings, a comprehensive binding global regime with emphasis on effective cooperative anangements and a tmst fund for developing countries was advocated. This could ensure financial support at least for those regional seas regions where only developing coimtries are the participants. A proposal for an innovative approach to promote intemational cooperation to confrol LBSMP was explored in Chapter Eight. Foundations of effective cooperation to the confrol of LBSMP were studied here. It was observed that the LOSC, the Monfreal Guidelines, Chapter 17 of Agenda 21 and the GPA, and regional agreements affirmed cooperative approach and contain provisions for cooperative action to confrol LBSMP. Nonetheless, current cooperative mechanisms for LBSMP were identified as insufficient and not fully effective. For example, LOSC's provisions are very general, broad and -361- uncertain in practice and the Monfreal Guidelines do not constittite any legal improvement over the LOSC in this respect. Agenda 21 and the Washington Conference 1995 set out broad principles for cooperative behaviour and took mtemational cooperation to a new level. However, they failed to constittite any mtemational standards for LBSMP confrol because of thefr discretionary and flexible provision and thefr non-binding force in intemational law. Relative success has been achieved through regional frameworks, however, tiiey are still not adequate to effectively confrol LBSMP as they reflect the loose cooperative framework provided by the LOSC. The battle agamst LBSMP is ongoing. Regional projects which have been undertaken on collaborative basis are reaching tiie implementation stage. Various participants and organisations including tiie GEF are contributing fmancially or otherwise, towards thefr implementation. Nonetheless, tiie present process has not been very smooth and efficacious. There is still a gap between commitment and cooperative action due to inadequate legal approaches and lack of capacities. The successes and failures of the whole intemational legal system to protect the world's oceans depend on the adoption and implementation of adequate legal and pohcy basis to confrol LBSMP,2 that constitute over 80% of all marine pollution. Creating clear intemational legal obligations is a first step to making marine environmental agreements potentially effective. They must define specifically at what level envirorunental standards are to be maintained and how the responsibility for decisions in relation to the balancing of interests between marine environmental protection and economic ^ Dobbert JP, 'Protocol to Conttol Pollution in the Mediterranean,' Environmental Policy and Law, (1980), Vol 6 at 110. -362- development is to be exercised. They must be supported by the capacity to unplement them. Concrete and positive cooperation on LBSMP control can only be achieved when political commitment is present and is supported financially. Stiengtiiened cooperation at 'mfra' and 'inter' regional levels would reinforce that commitment and support. All of these considerations point to the need for a global legally binding fi:amework entailing detailed and appropriate support systems, including dynamic legal, adminisfrative and financial inputs to support and, facihtate private sector participation and to promote compliance. Based on these considerations, this study has advocated an interlocking cooperative framework of regional and global dimensions for effective cooperation. By overcoming some of the legal, organisational, technical, economic and political barriers, this new model could contribute enormously to the effective conttol of LBSMP. 363 BIBLIOGRAPHY A. 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