Protecting the Marine Environment from Land-Based Sources of Marine Pollution: Towards an Effective Cooperative International Arrangement
Total Page：16
File Type：pdf, Size：1020Kb
University of Wollongong Thesis Collections University of Wollongong Thesis Collection University of Wollongong Year 2002 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