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To what extent has International law contributed to the protection of the marine environment from pollution?

Contents

Description

page number

List of Figures Table of Cases Table of Statutes

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Introduction Marine Environment Polution International Environmental Law The London Dumping Convention The MARPOL United Nations Convention on the Law of the Sea 1982 Pollution form seabed activities Pollution originated from land based sources Atmospheric Pollution Conclusion

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Reference List

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List of Figures
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Figure 1: Sources and Effects of Marine Pollution

Table of Cases

Corfu Channel case (1949) ICJ Rep. 4 Lake Lanoux Arbitration Case (1957) 24 I.L.R. 101 North Sea Continental Shelf Case (1969) ICJ 3 Trail Smelter Arbitration Case III RIAA 1905, p1965

Table of Statutes

1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 Decision of the Governing Council of UNEP iO/l4/VI of 31 May 1982 on the CONCLUSIONS OF THE STUDY OF LEGAL ASPECTS CONCERNING THE ENVIRONMENT RELATED TO OFFSHORE MINING AND DRILLING WITHIN THE LIMITS OF NATIONAL JURISDICTION. IMO Resolution 249(VII) of 15 October 1971 on the Amendment procedures in conventions for which IMCO is Depositary: Protocol for the Protection of the Mediterranean Sea Against Pollution from Land-Based Sources, 1980 to the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean, 1976 The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 1989 The Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft, 1972 The Convention for the Prevention of Marine Pollution from Land-Based Sources, 1974 The Convention for the Prevention of Marine Pollution from Land-Based Sources, 1974 The Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean, 1976 The Convention for the Protection of the Marine Environment of the North-East Atlantic, 1992 The Convention for the Protection of the Marine Environment of the North-East Atlantic, 1992

The Convention for the Protection of the Marine Environment of the North-East Atlantic, 1992 The Convention on the High Seas 1958: The Convention on the Protection of the Black Sea Against Pollution, 1992 The Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1974; The Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1992; The Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1992; The International Convention for the Prevention of Pollution From Ships, 1973 as modified by the Protocol of 1978 The International Convention for the Prevention of Pollution From Ships, 1973 as modified by the Protocol of 1978 The International Convention for the Safety of Life at Sea , 1974 The International Convention on Load Lines, 1966 The International Convention on Oil Pollution Preparedness, Response and Co-operation, 1990 The International Regulations for Preventing Collisions at Sea, 1972 The Prevention of Marine Pollution by Dumping of Wastes and Other Matters,1972 The United Nation Charter, 1945 The United Nations Conference on Environment and Development, held in Rio de Janeiro on 1992 The United Nations Convention on the Law of the Sea 1982 UN General Assembly Official Records 44th session, supplement No. 25 of 1989 (A/44/25) 15 Decision 15/2, Annex II

Introduction
Environmental law is broad and complex area of international law which constitutes the application of universal doctrines and principle of international law to environment protection issues. The purpose of international environmental law is to develop methods and procedures for negotiating standarts, resolving controversies, governing implementation in compliance with international law instruments and rules of customary law. It also deals with management of environmental issues, establishing environmental standards, determines objectives for environmental damage prevention and alleviation. 1 In order to determine to what extent international law contributed to the protection of marine environment from pollution, taking into account the nature and purpose of international law, it is necessary to assess effectiveness of its instruments in dealing with marine environment protection issues. However, there are different applications of effectiveness and in order to establish it, it is necessary to answer if the legal regime has solved the environmental issues it had been established for or if legal instruments have achieved its constitutive objectives or if it has changed polluting behaviour patterns. 2

Marine Environment Polution

In order to establish the contribution of international law to protection of marine environment it is necessary to establish definition of marine pollution, major pollutants and sources of marine pollution. The definition of marine environment pollution was given in Art.1 of the UNLOS III3. According to this internationally accepted definition, international law does not aim to prevent adding into marine environment of all substances but only these which would likely harm marine living resources or their legitimate ways of utilization. Thus, it is concentrated not at marine environment as value itself but rather to its value to humanity in order to obviate foreseeable deleterious consequences to human lives.4

Birnie,P. and Boyle,A.(2002) International law and the environment. 2nd ed. Oxford : Oxford University Press, p 7 2 Ibid 3 Art 1 United Nations Convention on the Law of the Sea 1982: pollution of the marine environment means the introduction 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 life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities 4 Churchill,R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press

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

Figure 1: Sources and Effects of Marine Pollution However, the primary strategy of International law regarding protection of the marine environment is based on dealing with the sources of the pollution rather than with the nature of the specific pollutants. According to GESAMP, there are four major sources of marine environment pollution. 44% originated from land based runoffs and discharges, 33% come from atmospheric inputs (however the majority of them still originates from land-based sources),

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

shipping is responsible for 12%, dumping at sea causes 10% and sea-bed activities only 1%.6 Land based pollution sources include sewage, industrial wastes, agricultural runoffs containing fertilizers and pesticides discharged to sea directly or through watercourses, warm water from power plants. In their turn atmospheric inputs include vehicles exhaust, fumes from chimneys (domestic and industrial), vaporized agricultural chemicals and etc. However, it is important to mention that while atmospheric inputs are usually dilute at marine environment, land sourced pollutants are concentrating in coastal areas. 7 Shipping pollutes marine environment through the vessel operations by discharging sewage, oily bilge waters, or ballast waters in case of tankers directly to sea. However, major pollution in shipping originates from cargos like oil, chemicals, liquid gas and others, which are spilling on the water as a result of marine accidents 8(as for instance major tanker accidents with Atlantic Empress, Amoco Cadiz, Torrey Canyon, Exxon Valdez9). Damping in the 1950s and 1960s was a popular method to deal with land-sourced wastes because of its relative cheapness. As result dredged materials from ports and rivers, sewage sludge, industrial wastes and even military and radioactive materials handled in that way10. As for sea bed activities, there the marine environment pollution originates from deliberate pollution as consequence of exploration and exploitation installations, such as domestic refuse disposal at sea, industrial debris, oily and chemicals wastes used for drilling and accidental pollutions from blowouts (major accident at Ixtoc oil well at 1979 and the current nightmare at Deepwater Horizon 11), collisions with ships or breaking of pipelines. 12

International Environmental Law

International environmental law is not an independent area of law but represents application of international law rules and principles to environmental issues, which however prompted clarification, development and creation of environmental law principles. The body of the international environmental legislation consists of multilateral treaty law such as ratified and binding state parties conventions and their protocols; not-binding guidelines and principle manifests referred as soft law instruments, issued by international bodies, for instance UNEP13, and serving as starting point for evolution of the treaties14; also rules and principles of treaties and soft law instruments transferred into customary international law as

GESAMP, 1990. The state of the Marine Environment, UNEP Regional Seas Reports and Studies No 115 UNEP: Nairobi 7 Churchill,R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press 8 Ibid. 9 Egawhary,E., 2010. How big is the Deepwater Horizon oil spill?. [online].Available: http://news.bbc.co.uk/1/hi/magazine/8664684.stm [accessed on 25 July 2010] 10 Ibid. 11 Egawhary,E., 2010. How big is the Deepwater Horizon oil spill?. [online].Available: http://news.bbc.co.uk/1/hi/magazine/8664684.stm [accessed on 25 July 2010] 12 Ibid. 13 UN Environmental Programme 14 Birnie,P. and Boyle,A.(2002) International law and the environment. 2nd ed. Oxford : Oxford University Press

international custom, as evidenced by a practice generally accepted as law15 or according to definition given by ICJ in the North Sea Continental Shelf Case: Customary international law is evidenced by the practice of states by reference to published material, statements of the national government and states own laws and judicial decisions and its acceptance as law16 Customary international law recognizes several general principles, which establish the base framework of international law relating to marine pollution. According to the principle of good neighbourliness expressed in UN Charter17 and based on the Roman Law maxim sic utere tuo ut alienum non laedas18 in the Trail Smelter Arbitration Case it was stated: under the principles of international lawno state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another19 Besides the aplication to air pollution, the case has direct relevance to issues of the extraterritorial marine polution from land base sources20: (a) it dealt with extraterritorial damage arising from pollution of shared environmental resources .(b)pollution was caused by discharge of harmful chemical from a fixed installation on land whose operation was not unlawful per se; and (c) the basis of responsibility of Canada was the exclusive territorial jurisdiction it exercised over activities of the industry21 According to Hassan22: the aforesaid principle stated in the Trail Smelter Arbitration Case reflect also doctrine of equitable utilization later confirmed in the International Tribunal rulling in the Lake Lanoux Arbitration Case, between Spain and France regarding diversion of lake waters as result of hydroelectric power station project. There it was confirmed, that the reasonable use of internal waters does not change its quality flowing to another state, by explaining that France is entitled to exercise her rights; she cannot ignore the Spanish interests. Spain is entitled to demand that her Rights to be respected and that her interest be taken into consideration 23 According to the principle of reasonables of the customary international law24 Art 2 of High Seas Convention25 expresses , that states can exercise freedom of high26 seas with

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Churchill,R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press 16 (1969) ICJ 3 17 Art 74 of United Nation Charter, 1945: Members of the United Nations also agree that their policy in respect of the territories to which this Chapter applies, no less than in respect of their metropolitan areas, must be based on the general principle of good-neighborliness, due account being taken of the interests and well-being of the rest of the world, in social, economic, and commercial matters. 18 use [what is] yours so as not to harm [what is] of others 19 III RIAA 1905, p1965 20 Hassan,D. (2006) Protection the Marine Environment from Land-Based Sources of Pollution. Towards Effective International Cooperation Aldershot: Ashgate Publishing Limited 21 Kuwabar,S. (1984) The Legal Regime of the Protection of the Mediterranean against Pollution from Land-Based Sources Dublin : Tycooly International Publishing Limited 22 Hassan,D. (2006) Protection the Marine Environment from Land-Based Sources of Pollution. Towards Effective International Cooperation Aldershot: Ashgate Publishing Limited 23 (1957) 24 I.L.R. 101

reasonable regard to the interests of other States in their exercise of the freedom of the high seas27. In the Corfu Channel case ICJ affirmed that principle of sovereignty of a state assimilates the obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States28. Consequently, it could be concluded that it is responsibilty of a state to preclude actual or possible environmental damage, when it knows or ought to know, that harming activity is performed in the states jurisdiction and within states power to prevent it.29 Thus as per Churchill and Lowe30, and Smith31 the principle established in the Trail Smelter Arbitration Case by analogy could be extended and combined with the principle declared in Art 2 of High Seas Convention and Corfu Channel case in order to create general rule of customary international law, that States must not permit to their nationals to discharge into the sea matter that could cause harm to the nationals of other States 32. However, such rule would be too ambiguous and due to the nature of customary international law, incapable of creating detailed emission standards and effective liability regime.33 Besides, such rule would address only transboundary pollution issues and would not be aplicable for domestic aspects of marine environment pollution.34 Therefore, most of the international legislation concerning of the marine environment protection from pollution is formed by positive treaty law, which could be divided into four categories35: general multilateral conventions (concerning pollution from ships: The 1954 Oil Pollution Covention, MARPOL36, SOLAS37, The Basel Convention38; concerning the dumping the London Dumping Convention39), regional conventions (the Helsinki Convention40, the
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Churchill,R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press, p 332; Hassan,D. (2006) Protection the Marine Environment from Land-Based Sources of Pollution. Towards Effective International Cooperation Aldershot: Ashgate Publishing Limited, p 72 25 Art. 2 of the Convention on the High Seas 1958. 26 According to Art.2 of the Convention on the High Seas 1958: (1) Freedom of navigation; (2) Freedom of fishing; (3) Freedom to lay submarine cables and pipelines; (4) Freedom to fly over the high seas. 27 Ibid. 28 (1949) ICJ Rep. 4 29 Hassan,D. (2006) Protection the Marine Environment from Land-Based Sources of Pollution. Towards Effective International Cooperation Aldershot: Ashgate Publishing Limited 30 Churchill,R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press , p 332 31 Smith,BD. (1988) State responsibility and the marine environment : the rules of decision Oxford: Clarendon Press 32 Churchill,R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press , p 332 33 Ibid. 34 Hassan,D. (2006) Protection the Marine Environment from Land-Based Sources of Pollution. Towards Effective International Cooperation Aldershot: Ashgate Publishing Limited, p 76 35 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press , p 332 36 The International Convention for the Prevention of Pollution From Ships, 1973 as modified by the Protocol of 1978 37 International Convention for the Safety of Life at Sea , 1974 38 The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 1989 39 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters,1972

Barcelona Convention41, the Bucharest Convention42, the Paris Convention43 and other), bilateral treaties and the UNLOCS III44.

The London Dumping Convention

The London Dumping Convention was adopted under the auspices of IMO at 1972 and entered to force at 1975 as response to growing practise of deliberate disposal at sea of waste originating from land-based activities in the 1950s and 1960s45. It is often regarded as one of the more effective international regulatory instruments of the1970s, as for instance dumping of industrial waste was reduced from 17 million tons at 1979 to 6 million tons at 1987; dumping of sewage sludge declined form 17 million tons at 1980 to 14 in 198546 as result of increasing states efforts to use more environmental friendly technologies, recycle wastes or find different ways of disposal. 47 Initially the London Convention was dividing the waste into 3 groups: prohibited for dumping substances48 black-listed in Annex 1; allowed for dumping under special permit noxious substances49 - grey-listed in Annex 2 and substances other than the listed in Annexes 1 or 2 allowed for dumping under general permit. There are also special amendments adapted in 1978 regarding incineration of waste at sea. 50 However, in the beginning of the 1990s the traditional approach of controlling dumping under the influence of international environmental law evolution and principles, later expressed in the Agenda 21 program of the 1992 Rio Conference 51 was changed towards a precautionary approach and holistic waste management aproach. In the 3 sets of amendments dumping of all radioctive materials, industrial waste and incineration of noxious liquids, industrial waste, sewage sludge was forbidden. According to the 1996 protocols52 the only substances permissable to dump are dredged materials; sewage sludge; fish waste; vessels and oil and

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The Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1974; The Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1992 41 The Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean, 1976 42 The Convention on the Protection of the Black Sea Against Pollution, 1992 43 The Convention for the Prevention of Marine Pollution from Land-Based Sources, 1974 44 United Nations Convention on the Law of the Sea 1982 45 Churchill,R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press , p 332 46 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press , p 370 47 Birnie,P. and Boyle,A.(2002) International law and the environment. 2nd ed. Oxford : Oxford University Press, p 427 48 For instance organohalogen compounds, mercury, cadmium, oil, plastics, and high-level radioactive waste 49 For instance arsenic, lead, copper, zinc, organosilicon compounds, cyanides, fluorides, pesticides, scrap metal, radioactive materials 50 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press , p 364 51 The United Nations Conference on Environment and Development, held in Rio de Janeiro on 1992 52 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972

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gas platforms; inert, inorganic geological material; organic material of natural origin; incinerations and waste-export to non-parties are banned. 53 According to UNLOS III provision related to dumping, besides obligation to adopt laws and regulations to prevent, reduce and control pollutionby dumping54, which shall be no less effective than the global rules and standards55 and ensure that dumping is not carried out without the permission56, states that dumping within the territorial sea and the exclusive economic zone or onto the continental shelf shall not be carried out without the express prior approval of the coastal state, which has the right to permit, regulate and control such dumping after due consideration57; what goes beyond provisions of the London convention regarding prior consultation. 58. As a result of those amendments, the London Convention has became a non-dumping convention, what however has certain weakneses as lack of effective international supervision, reliance to enforcement by national governments, which compliance with their reporting duties is not fully satisfactory. 59

The MARPOL

The MARPOL Convention, designed to address intentional vessel-source pollution issues, was adopted under the umbrella of IMO in 1973. The Convention works on the basis of certifying vessels compliance with safety and pollution standards. The MARPOL consists of 6 annexes, setting detailed pollution standards for operational oil pollution60, noxious liquid substances carried in Bulk61, harmful substances carried in packaged form62, sewage63, garbage64 and air pollution65. According to Article 566, the MARPOL well before principle of port state jurisdiction, established under the UNCLOS III, allotted a port state with power to verify compliance with international rules and regulations and conduct enforcement actions (detain and prosecute) if
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Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press , p 365-366 54 Art 210 of United Nations Convention on the Law of the Sea 1982 55 Ibid. 56 Ibid. 57 Ibid. 58 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press , p 369 59 Birnie,P. and Boyle,A.(2002) International law and the environment. 2nd ed. Oxford : Oxford University Press, p 427 60 Annex I, which entered into force on 2 October 1983 61 Annex II, which entered into force 6 April 1987 62 Annex III, which entered into force on 1 July 1992 63 Annex IV, which entered into force on 27 September 2003 64 Annex V, which entered into force on 31 December 1988 65 Annex VI, which entered into force on 19 May 2005 66 Art. 5 of the International Convention for the Prevention of Pollution From Ships, 1973 as modified by the Protocol of 1978: a ship required to hold a certificate in accordance with provisions of Regulations is subject, while in the port or off-shore terminal under the jurisdictions of a Party to inspection by officers duly authorized by that Party

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violation is established in respect of vessels in its ports, even if some vessel flag state is not signatory of the MARPOL according to Article 5 it is necessary to ensure that no more favourable treatment is given to such ships67 . Such principle is affecting the rights of third party states not bound by the convention and was opposed by many states, yet it brings more effectiveness to enforcement of international pollution standards.68. In order to accept urgently required amendments to international conventions dealing with prevention of marine pollution in timely manner the procedure of the tacit acceptance 69 was proposed and implemented by IMO. For instance, amendments to Annex 1 of MARPOL regarding the phasing-out of single-hull oil tankers was adopted in April 2001 and came into force in less than 18 months in September 2002 through the tacit acceptance procedure. According to Peet70 the main criteria how the MARPOL contribution to marine environment protection could be assessed is the reduction of the harmful substances quantity which were discharged into the marine environment from accidents or ship operations and evaluation of the MARPOL implementation effectiveness by national governments. According to Bernie and Boyle71 the MARPOL lacks instruments to verify states compliance and mechanisms to deal with such disregarding states in order to achieve its purposes. The Peets study evidenced issues and non-compliance from the states regarding their reporting (Art. 11(e),11(f)), monitoring and detection (Art. 6(1)) and enforcement duties (Art. 4(1),4(2),4(3),4(4)) under the MARPOL convention72. Birnie and Boyle73, Churchill and Lowe74, Peet75 agree that the implementation of Annex 1 prescribing load-on-top system for tankers over 150 tons to limit oily water discharge en route; prohibiting any oily water discharges at special zones like Baltic, Black or Mediterranean seas; imposing usage of segregated ballast tanks and crude oil washing method for cargo tanks made significant contribution towards marine environment protection from deliberate pollution from ships. According to GESAMP76 data the total quantity of oil brought into marine environment by maritime transport declined for from 2.13 million tons in 1973 to
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Ibid. Basedow,J et all (2007) Pollution of the Sea Prevention and Compensation Berlin : Springer, p 57 69 As it was explained IMO Resolution 249(VII) of 15 October 1971 on the Amendment procedures in conventions for which IMCO is Depositary: .. the body which adopts the amendment at the same time fixes a time period within which contracting parties will have the opportunity to notify either their acceptance or their rejection of the amendment, or to remain silent on the subject. In case of silence, the amendment is considered to have been accepted by the party 70 Peet,G. 1994. International Co-operation to Prevent Oil Spills at Sea: Not Quite the Success It Should Be [online]. Available:www.fni.no/YBICED/94_03_peet.pdf [accessed on July 30, 2010] 71 Birnie,P. and Boyle,A.(2002) International law and the environment. 2nd ed. Oxford : Oxford University Press, p 367 72 Peet,G. 1994. International Co-operation to Prevent Oil Spills at Sea: Not Quite the Success It Should Be [online]. Available:www.fni.no/YBICED/94_03_peet.pdf [accessed on July 30, 2010] 73 Birnie,P. and Boyle,A.(2002) International law and the environment. 2nd ed. Oxford : Oxford University Press, p 348 74 Churchill,R. and Lowe,A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press , p 332 75 Peet,G. 1994. International Co-operation to Prevent Oil Spills at Sea: Not Quite the Success It Should Be [online]. Available:www.fni.no/YBICED/94_03_peet.pdf [accessed on July 30, 2010] 76 GESAMP, 1993. Impact of oil and related chemicals and wastes on the marine environment. GESAMP Report 50 s.l.:s.n. Not available, but the figures referred to can also be found in Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press , p 341

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1.47 million tons in 1981 and furthermore till 0.57 million tons. However, as it was explained by Birnie and Boyle77 most of that oil appeared to be operational discharges (ballasting, tank cleaning, oil waste) that indicates the obligation disregard to provide adequate reception facilities in the ports of many states under MARPOL Annex 1 Regulation 12. Churchill and Lowe78 also underline that the lack of suitable reception facilities is a common issue not only for oil waste but for harmful substances under other MARPOL annexes as well. However, even if the MARPOL Convention is generally considered as success79, the carefull researchers are not that straightforward, perhaps as it was cocluded by Birnie and Boyle: the data do not point to any clear conclusion, except that the operational pollution does appear to have declined 80. In order to reduce accidental pollution as result of hull failure, collisions or standings the MARPOL constitutes provisions establishing limitations for tankers tank sizes and requirement for double hulls tankers. According to the OPRC Convention81 every vessel should have onboard approved oil pollution emergency plan, comprehensively covering all matters being taken in order to deminish oil pollution risk. 82 There are also other international law instruments trying to decrease the risk of accident occuring by improving the seaworthiness of vessels, qualification of the crew or regulating vessel traffic as for instance SOLAS83, Load lines Convention84, COLREGs Convention85.

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Birnie,P. and Boyle,A.(2002) International law and the environment. 2nd ed. Oxford : Oxford University Press 78 Churchill,R. and Lowe,A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press , p 332 79 Sheehy,B., 2004. International Marine Environment Law: a Case Study in the Wider Caribbean Region. [2004] 16 Geo. Int'l Envtl. L. Rev. 441 80 Birnie,P. and Boyle,A.(2002) International law and the environment. 2nd ed. Oxford : Oxford University Press, p 369 81 International Convention on Oil Pollution Preparedness, Response and Co-operation, 1990 82 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press, p 376 83 International Convention for the Safety of Life at Sea, 1974 84 International Convention on Load Lines, 1966 85 Convention on the International Regulations for Preventing Collisions at Sea, 1972

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United Nations Convention on the Law of the Sea 1982

The protection of marine environment from polution has not constituted the primary issues for international relatioship till 1970-s86. However, UNCLOS I87 had general provisions obliging parties to prevent marine environment pollution by oil from ships or pipelines or resulting from the exploitation and exploration of the seabed88 and from the dumping of radioactive waste89. The first comprehensive legal framework for marine environment protection was presented only in UCLOS III90, designed to establish legal order for the seas and oceans which will facilitatethe equitable and efficient utilization of their resources, protection and preservation of the marine environment91 Notions used in UNCLOS III articles devoted to the protection and preservation of the marine environment (Art. 192-222) reflect the evolution of the international environmental law generally and law of the sea particularly. One the most important developments is that pollution cannot to be regarded any more as implied part of the freedom high seas, rather its diligent control from all sources is now a matter of comprehensive legal obligation affecting the marine environment as whole, and not simply interest of other states92. Another change stated in the UNCLOS III is the alteration of balance of power between flag states, port state and coastal states. The UNCLOS III placing additional obligation on states to adopt for vessel flying its flag pollution regulation which at least have the same effect as that of generally accepted international rules and standards established through the competent international organization or general diplomatic conference93. According to Churchill and Lowe 94 such standart would include MARPOL and its widely ratified annexes, however the legal implication of the wording accepted international rules and standards is not clear. UNCLOS III is also placing additional strict obligations to flag states to enforce the compliance of their vessels regarding pollution legislation95. The pollution regulation legislative competence of coastal states was decreased and may not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards96. However, the area where such pollution regulations are aplicable, was extended from territorial seas only, also

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M'Goningle, RM. and Zacher, MM. (1979) Pollution Politics and International Law Berkeley : University of California Press 87 Convention on the Territorial Sea and the Contiguous Zone 1958, Convention on the High Seas 1958, Convention on Fishing and Conservation of the Living Resources of the High Seas 1858, Convention on the Continental Shelf 1958 88 Art 24 of the Convention on the High Seas 1958 89 Art 25 of the Convention on the High Seas 1958 90 Charney,JI. 1994. The Marine Environment and 1982 United Nation Convention on the Law of the Sea. International Lawyer, 28(4), p 484 91 Preamble of United Nations Convention on the Law of the Sea 1982 92 Birnie,P. and Boyle,A.(2002) International law and the environment. 2nd ed. Oxford : Oxford University Press, p 348 93 Art 211(2) of United Nations Convention on the Law of the Sea 1982 94 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press , p 348 95 Art 217) of United Nations Convention on the Law of the Sea 1982 96 Art 21(2) of United Nations Convention on the Law of the Sea 1982

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to EEZ97 where coastal state was granted with certain power to appoint for marine polution legislation giving effect to generally accepted international rules or standards98.99 The UNCLOS III provisions provide port states more power to enforce marine pollution standards. According to UNCLOS III, a vessel could be arrested and prosecuted by port state for violation of that states pollution laws and regulationsor applicable international rules and standards100 not only in that port state territorial waters or EEZ, but also outside them for violation of applicable international rules and standards101. Port states and coastal states are granted with the possiblity to take enforcement actions if flag state was incapable of enforcing effectively the international pollution standards. 102 Finally, in the UNCLOS III the emphasis has been moved from responsibility for environmental damage primary on international legal regimes structure, powers and responsibilities of flag, coastal and port states, international organizations and commissions103.

Pollution form seabed activities

However there is a not general treaty regulating polution from offshore installations104. The general obligation to prevent such pollution exists in the UNCLOS I105 and in the UNCLOS III, which stipulates to adopt laws and regulations to prevent, reduce and control pollution 106 arising from seabed activities and enforce their laws and regulations adopted 107. Article 208(3) of UNCLOS III states that such lawsshall be no less effective than international rules, standards and recommended practices and procedures108 and Article 208(5) in its turn calls parties to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution of the marine environment109 The MARPOL convection is aplicable to pollution other than the release of harmful substances directly arising from the exploration, exploitation110, while the London Convention governs debris dumping from exploration and exploitation of offshore facilities. 111
97 98

Exclusive Economic Zone Art 211(5) of United Nations Convention on the Law of the Sea 1982 99 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press 100 Art 220(1) of United Nations Convention on the Law of the Sea 1982 101 Art 218(1) of United Nations Convention on the Law of the Sea 1982 102 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press 103 Birnie,P. and Boyle,A.(2002) International law and the environment. 2nd ed. Oxford : Oxford University Press, p 348 104 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press , p 371 105 Art. 24 of the Convention on the High Seas 1958 106 Art. 208 of United Nations Convention on the Law of the Sea 1982 107 Art. 214 of United Nations Convention on the Law of the Sea 1982 108 Art. 208(3) of United Nations Convention on the Law of the Sea 1982 109 Art. 208(5) of United Nations Convention on the Law of the Sea 1982 110 Art. 2 of the International Convention for the Prevention of Pollution From Ships, 1973 as modified by the Protocol of 1978 111 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press, p 372

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However, there is more comprehensive range of measures based on the UNEP guidelines112 governing pollution from seabed activites developed in regional agreements (as for instance in the OSPAR Convention113, the Helsinki Convention114, the Barcelona Convention115amended in 1995 with protocol sea-bead activities), which should minimise operational pollution. 116 As article 194(3c)117 of the UNCLOS III and UNEP Guidelines point out, in order to minimize the chance for accidental pollution from installations and devices used in exploration or exploitation of the natural resources states have to ensure the safety of operations at sea, prescribe and rigorously enforce the design, construction, equipment, operation and manning of such installations. According to the OPRC Convention118 every offshore installation operator prior to commence any exporation and exploitation activities, is obliged to have approved oil pollution emergency plan, comprehensively covering all matters being taken in order to diminish oil pollution risk. 119 The issue with pollution in the international sea bed area, according to Article 145 of the UNCLOS III, should be regulated by the International Sea Bed Authority, who shall adopt appropriate rules to ensure effective protection for the marine environment120 paying special attention to harmful effects of such activities as drilling, dredging, excavation, disposal of waste, construction and operation or maintenance of installations, pipelines and other devices related to such activities121

Pollution originated from land based sources

Despite of being the prevailing source of marine environment polution, there is only limited number of international law instruments dealing with that probably most national pollution source. The articles 207 and 213 of UNCLOS III impose states with obligation to adopt and enforce laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources, including rivers, estuaries, pipelines and outfall structures, taking into account internationally agreed rules, standards and recommended practices and procedures122 particularly with toxic, harmful or noxious substances, especially those which are persistent123. Article 207(4) is calling to establish global and

112

Decision of the Governing Council of UNEP iO/l4/VI of 31 May 1982 on the CONCLUSIONS OF THE STUDY OF LEGAL ASPECTS CONCERNING THE ENVIRONMENT RELATED TO OFFSHORE MINING AND DRILLING WITHIN THE LIMITS OF NATIONAL JURISDICTION. 113 The Convention for the Protection of the Marine Environment of the North-East Atlantic, 1992 114 The Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1992 115 The Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean, 1976 116 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press, p 372-374 117 Art. 194(3c) of United Nations Convention on the Law of the Sea 1982 118 International Convention on Oil Pollution Preparedness, Response and Co-operation, 1990 119 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press, p 376 120 Art. 145 of United Nations Convention on the Law of the Sea 1982 121 Ibid. 122 Art. 207(1) of United Nations Convention on the Law of the Sea 1982 123 Art. 207(5) of United Nations Convention on the Law of the Sea 1982

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regional rules, standards and recommended practices and procedures124 regarding the subject. And even if there is no global treaty dealing with land-based pollution, a number of soft-law instruments and regional conventions exist. 125 One of the cornerstone soft-law intruments, the so-called Agenda 21 program of the 1992 Rio Conference 126evaluates the UNCLOS III as the international basis upon which to pursue the protection and sustainable development127 of the marine and coastal environment and its resources. The principle of sustainable development is based at the maitenance, rational use and enhancement of the natural resource base that underpins ecological resilience and economic growth128. In order to achieve such aim Agenda 21 emphasizes on the integrated and precautionary approaches to marine environment protection, thus focusing not just at management of marine environment pollution sources but on protection of ecosystems as a whole and prevention of marine environment degradation129. The aplication of precautinary principle to activities causing pollution is asking for standarts or codes of best available practises130 in order to decrease the risk of accidents131. Agenda 21 also pays due regards to polluter pays principle by stating that polluter should.bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment 132 There are number of regional treaties dealing with land-based sources of marine polution, principles of which will be briefly considered at example of the Paris Convention133, the Helsinki Convention134, one of UNEP Regional Seas Agreements the Mediterranean Protocol135. All three international law intruments had started from regulating land-based pollution by dividing pollutants to several categories, subject to the type of measures parties are going to undertake and how dangerous the particular pollutant is. For instance the Paris Convention was dividing pollutants into 4 categories: the black list with the most noxious substances 136 pollution by which parties have undertaken to eliminate; grey list with less dangerous substances137 pollution by which were strictly limited and controled by parties; radioactive substances in respect of which parties were going to adopt measure to forestall and, as

124 125

Art. 207(4) of United Nations Convention on the Law of the Sea 1982 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press, p 379-380 126 The United Nations Conference on Environment and Development, held in Rio de Janeiro on 1992 127 According to World Commission on Environment and Development, sustainable development defined as development that meets the needs of the present without compromising the ability of future generations to meet their own needs. 128 UN General Assembly Official Records 44th session, supplement No. 25 of 1989 (A/44/25) 15 Decision 15/2, Annex II 129 Birnie,P. and Boyle,A.(2002) International law and the environment. 2nd ed. Oxford : Oxford University Press, p 349 130 BAT(Best Available Technique) a nd BEP (Best Environmental Practice) principle 131 Gouilloud, MR. (1981) Prevention and Control of Marine Pollution In: Johnston,DM. ed. The Environmental. Berlin:s.n., p 245 132 UN, 1992. REPORT OF THE UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT [online].Available: http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm [accessed on 25 July 2010] 133 The Convention for the Prevention of Marine Pollution from Land-Based Sources, 1974 134 The Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1974; 135 Protocol for the Protection of the Mediterranean Sea Against Pollution from Land-Based Sources, 1980 to the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean, 1976 136 Organohalogen compounds, mercury, cadmium, persistent synthetic material, oil 137 Phosphorous, organic compounds of phosphorous, silicon, tin, non-persistent oil, arsenic, heavy metals

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appropriate, eliminate pollution138; the last category included all remaining pollutants, with no particular activities demanded from states. In order to control emissions of particular pollutants, two ways were used either uniform emission standard (UES) or water quality objective (WQO).The Helsinki Convention and the Mediterranean Protocol have demonstrated similar aproach by trying to control emissions of pollutants substance-by-substance. . 139 However, in the beginning of the 1990s under the influence of international environmental law evolution, the Paris Convention, the Helsinki Convention and the Mediterranean Protocol were altered to abandon black and grey lists principle and give effect to new concepts and principles of sustainable development, biodiversity, polluter pays, best available technique (BAT) and best environmental practice (BEP). The Paris and the Oslo Convention140 were replaced by OSPAR141 Convention, which came into force at 1998. The Article 3 obliges parties to take all possible steps to prevent and eliminate pollution from land-based sources142; BATs and BEPs are outlined in Appendix 1; states according to Article 6 assess the quality status of the marine environment and the effectiveness of the measures taken 143 at regular intervals. As it was stated by Churchill and Lowe144 the efectiveness of the convention would depend on the functioning of Paris Commission, authority responsible for point sources discharges approval. The 1974 Helsinki Convention145 was replaced by 1992 Helsinki Convention146 imposing parties to prevent and eliminate pollution of the Baltic Sea Area from land-based sources by using, inter alia, Best Environmental Practice for all sources and Best Available Technology for point sources147 The Mediterranean Protocol was amended in 1996 in order to adopt time-tables cutting down marine environment pollution by pollutants which are toxic, persistent or bio-accumulates by employing Best Environmental Practice for point and diffuse sources and Best Available Technology for point sources. 148

138 139

Art.5 of The Convention for the Prevention of Marine Pollution from Land-Based Sources, 1974 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press 140 The Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft, 1972 141 The Convention for the Protection of the Marine Environment of the North-East Atlantic, 1992 142 Article 3 of The Convention for the Protection of the Marine Environment of the North-East Atlantic, 1992 143 Article 6 of The Convention for the Protection of the Marine Environment of the North-East Atlantic, 1992 144 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press, p 384 145 The Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1974; 146 The Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1992; 147 Article 6(1) of the Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1992; 148 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press

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Atmospheric Pollution

The UNCLOS III treats pollution from or through the atmosphere as independent marine environment pollution source and addresses it the way similar to other pollution sources by prescribing states according to the Articles 212 and 222 to adopt and enforce laws and regulations to prevent, reduce and control149 such polution and inducing them to establish global and regional rules, standards and recommended practices and procedures to150 achieve that aim. Several regional agreements also constitute provisions addressing marine environment pollution originated from land sources through the atmosphere, for instance OSPAR Convention reckons such marine environment pollution to land based sources and deals with it in regular way 151, the 1992 Helsinki Convention152 uses the same aproach, the Mediterranean Protocol with the 1996 amendments provide general emission eliminating obligations dealing with aerial emissions . However, as it explained by Churchill and Lowe 153 most regional convention except perhaps OSPAR and Helsinki Conventions had not achieved any practical result in ceasing pollution from atmospheric emissions. 154

Conclusion

There is vast amount of international law addressing issues of marine environment polution, which was referred by European Commission as a patchwork of policies, legislation, programmes and actions pans at national, regional, EU, and internatinal level155. The scopes of the current essay allowed only brief outline the basic frame of international environmental law regarding to the issue of marine environmental protection from pollution. That concerning assessment of the international law contribution to the protection of the marine environments, as it was stated in the aforesaid European Comission memorandum: the general picture that emerges from this policy framework is a mixed one. On the positive side, some progress has been made in certain areas.However, overall, the state of marine environment has been deteriorating significantly over recent decades156. There are several problems identified into international environmental law dedication to issues of marine environment protection from pollution. In order to encrease contribution it is necessary to improve the implementation and enforcement of existing international law
149 150

Art. 212(1) of United Nations Convention on the Law of the Sea 1982 Art. 212(3) of United Nations Convention on the Law of the Sea 1982 151 Art. 1e of The Convention for the Protection of the Marine Environment of the North-East Atlantic, 1992 152 The Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1992; 153 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press, p 391 154 Churchill, R. and Lowe, A. (1999) The Law of the Sea. 3rd ed. Manchester: Manchester University Press, p 389-391 155 European Commission 2002. Communication from the Commission to the Council and the European Parliament - Towards a strategy to protect and conserve the marine environment [online] Available:http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52002DC0539:EN:NOT [accessed on 25 July 2010] 156 Ibid.

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instruments. However, implementation and enforcement are the weak points of the international law, as to be implemented it has to pass through the complex and sometimes very long process of national ratifications. And Conventions secretariats source their information from states signatories, who are not interested to report failures and disregards to conform with their obligations. According to Churchill and Lowe 157 the international community should focus at: Bringing into force the environmental conventions, which have not been implemented yet by encreasing number of ratifications; Ensuring effective functioning of regional agreements commissions and meetings; More effective implementation of the existing international treaties Better control over effects of existing standarts

157

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

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