States shall take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.
--Principle 7, Stockholm Declaration
The oceans covering two thirds of the earth’s surface are vital for the life on the land. Oceans are the targets of ruthless, expansive, exploratory and exploitative activities of the materialistic mankind. These callous activities are leading to the rapid depletion of marine resources which are so vital to the maintenance of eco-balance thereby leading the planet earth to an irredeemable catastrophe. Oceans which hold a great promise for the future of the mankind have become very vulnerable to many destructive forces.148 The emergence of serious environmental problems was evident as early as 1926, when a draft convention on pollution from ships was drawn up at a conference in Washington, but not opened for signature.149 International competition for living resources led to the conclusion of the first multilateral treaties on seals, fisheries, and whaling in the early twentieth century. It was only after Second World War that the problem was seriously taken up. However regulation of marine pollution was somewhat slower to develop, reflecting the more limited interest of states in this problem, and the limitation of scientific understanding of oceanic processes.150 The impact of pollution on coastal environments, on fisheries and on human populations had become widespread by late 1960. The process of legal development, initially based on ad hoc attempts to regulate specific problems, such as pollution from ship or dumping was given substantial impetus by the 1972 Stockholm Conference on the Human Environment. The Action Plan identified many of the weaknesses of earlier attempt to protect the marine environment and made certain recommendations. The conference called on states to accept and implement existing legal instruments for the control of marine pollution, ensure that the provisions of such instruments are complied with by ships flying their flags atid by ships operating in areas under their jurisdiction and that adequate provisions are made for reviewing the effectiveness of, and revising, existing and proposed international measures for control of marine pollution. The Governments were also called on to ensure the ocean dumping by their nationals, and to continue work towards the completion of ,and bringing into force as soon as possible of an overall instrument for the control of ocean dumping as well regional agreements within the framework of this instrument. Supported proposals for new conventions on dumping and pollution from ships, which led to the adoption of the 1972 London and Oslo Dumping Convention and the 1973 MARPOL Convention respectively.151 Other recommendations dealt with support for research and monitoring programmes at national and international level, using existing international institutions or agencies such as IMO, the IOC and GESAMP and with co-ordination and stimulation of international action through UNEP.152
In the late 1950s and early 1960s there were several controversies about dumping radioactive waste off the coasts of the US by companies licensed by the atomic energy commission, into the Irish Sea from the British reprocessing facility at wind scale and into the Mediterranean sea by the French. Problem of Marine pollution gained momentum with 1967 crash of the oil tanker Torrey Canyon and 1969 Santa Barbara Oil Spill. Marine pollution remained a major area of discussion during the 1972 United Nations Conference on the Human Environment, held in Stockholm. In the same year also saw the signing of Convention on the Prevention of Marine Pollution by Dumping of Waste and other Matter (London Convention). The London Convention did not ban marine pollution, but it established black and gray lists for substances to be banned or regulated by national authorities.
Various multilateral instruments dealing with specific aspects of marine pollution were adopted before the UNCLOS 1982. These instruments included the Convention on the High Seas and the Convention on the Continental Shelf adopted by the first UN Conference on the Law of the Sea 1958. Article 24 and 25 of the convention on high seas imposes a responsibility on every state to draw up regulations, take measures, and to co-operate with the competent international organization to prevent pollution of the seas.153 Other global and regional convention regulating pollution covered only certain specific types of pollutants and no attempt had been made to deal with the problem of protecting the marine environment in a comprehensive manner until Stockholm conference. However the emergence of a more strongly expressed obligation to protect the marine environment is seen in Article 192 to 195 of the 1982 UNCLOS, by regional treaties and by other multilateral agreements.
Definition of Marine Pollution
The term marine pollution as commonly understood refers to an action or a situation that changes the quality of sea water for the worse. The Oxford English Dictionary defines pollution as “the action of polluting or conditions of being polluted, defilement, uncleanliness or impurity”. Webster’s English Dictionary defines “pollution as the action of polluting or the state of being polluted, defilement, desecration, impurity, uncleanness.”154
In considering the topic of marine pollution it is necessary to refer to the question of its definition. As Michael Hardy points out, despite its seeming scientific sound, marine pollution is not a single, precisely determined, biological, chemical or physical process. In common parlance, marine pollution involves the destruction of the quality of water by contamination. In scientific terms marine pollution is a distortion of marine environmental health.155 The term “marine pollution” has received various definitions by different writers. H.A.Cole for instance, considers that it covers “all human activities which may change the environment and so affect the marine fauna and flora, fisheries, public health or amenities”, and includes therefore, the effects of “development along the coast, offshore exploitation of oil and gas and gravel extraction”, as well as those other activities such as “the discharge of sewage and industrial effluents, oil pollution and the discharge of radioactive waste.”156
There is already a classical definition which was adopted by the Intergovernmental Oceanographic Commission and accepted in a slightly amended form by the joint IMCO/FAO/UNESCO/WMO/WHO/IAEA/UN Group of Experts on the Scientific Aspect of Marine pollution (GESAMP), it states marine pollution as “The introduction by man, directly or indirectly of substance or energy into the marine environment(including estuaries) resulting in such deleterious effects as harm to living resources, hazards to human health, hindrance to marine activities including fishing impairment of quality for the use of Sea-water and reduction of amenities”.157 The definition states it is human oriented, omitting natural activities and secondly the definition is amenable to measurements. Scientists can also readily identify various toxic substances found in the marine environment, measure their quantities and provide estimates of their potential danger for the health of both marine life and humans. Marine pollution, then is composed of two elements (a) the introduction by man of certain substances or energy into the marine environment and (b) the harm that is caused to other legitimate activities that depends, in some way on the use of the marine environment.158
The Definition formulated by GESAMP was used by the 1972 United Nations Conference on the Human Environment and was later adopted, with slight changes, by the 1974 Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Area, the 1974 Paris Convention for the Prevention of Marine Pollution from Land Based Sources,1976 Barcelona Convention for the Protection of the Mediterranean Sea Against Pollution and the 1978 Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution.
The 1982 United Nations Convention on the Law of the Sea defined Pollution of the marine environment, as ‘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 water and reduction of amenities’.
In common parlance, marine pollution involves the destruction of the quality of water by fouling, defiling and making it filthy by contamination. In scientific terms, pollution constitutes a distortion of the marine ecosystem.159 Understanding of marine pollution therefore requires an understanding of marine ecosystem. The marine ecosystem is composed of land, saline water and living things, in a two dimensional classification of water and bottom, the water mass is technically known as the pelagic zone and the land mass beneath it, the benthic Zone. Marine ecosystems are home to a host of different species ranging from tiny planktonic organisms to large marine mammals like the whales, manatees, and seals.
The ocean depicts the interaction between living creatures and the oceanic environment, the water, the air and the land. The ocean environment shapes the habits and forms of the creatures living therein. A series of delicately adjusted, interlocking relationship have developed because of one’s responsiveness to the other. The equilibrium of the food and energy in the oceans is often characterized as a food web-a complex network of paths of food energy transfer, the nutritional inter-relationship of marine organisms.160 The food web is essential to the maintenance of successful growth and development of life in the marine ecosystem. The plants and animals that float or drift passively in the sea is the initial link in the complex marine food chain. The tiny plants often of microscopic dimensions trap some of the energy of sunlight through photosynthesis, starches and sugar resulting from this process is then available to the animals. Without plant life or plankton the larger species could not exist. Without the tides, the currents and the sand bars or rock reefs the plants could not exist. The impact of human activity resulting in marine pollution upsets the ecological balance by poisoning the animals through plants with which they come into contact, in turn affecting man.
The State as a sole actor approach to international legal development has long been discredited. A sovereign state has freedom of action to deal with its own territories so long as its action do not interfere with its international legal obligations on this principle it is apparent if the territory from which contaminants originate and the area in which damage occurs are within the jurisdiction of the same state, pollution is solely a domestic matters. The fact is however that marine pollution extends beyond boundaries and has attracted growing international attention since the early 1950s. The term “transfrontier pollution” refers to any form of pollution which has adverse effects in another country. Indeed it was this kind of pollution which first attracted international attention as far as environmental protection is concerned.
Sources of Marine Pollution
The GESAMP has categorized the sources of marine pollution as follows:
(a) Disposal of domestic sewage and agricultural and industrial wastes
(b) Deliberate and operational discharges of ship borne pollutants
(c) Interference with the marine environment resulting from the exploration and exploitation of mineral resources
(d) Disposal of radioactive waste resulting from the peaceful use of nuclear energy
(e) Military uses of the ocean
The 1982 UNCLOS was intended to be a comprehensive restatement of almost all aspects of the Law of the Sea. The Convention, is built upon the principles laid down in the Stockholm Declaration, contains a comprehensive set of international rules for the protection and preservation of the marine environment. Part XII of the Convention constitutes the legal framework for human activities relating to the marine environment. The basic objective of the UNCLOS was to establish a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources and the study protective and preservation of the marine environment. The Convention thus attempts for the first time to provide a global framework for the rational exploitation and conservation of the sea’s resources and the protection of the environment which can be seen as a system for sustainable development, and as a model for the evolution of international environmental law.161 Article 194 of UNCLOS dealing with measures to prevent, reduce and control pollution of the marine environment in Para 3 of the Article makes reference to different sources of pollution. It states “The measures taken pursuant to this part shall deal with all sources of pollution of the marine environment. These measures shall include, inter alia those designed to minimize to the fullest possible extent.
a) The release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping.
b) Pollution from vessels, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional discharges and regulating the design, construction equipment, operation and manning of vessels.
c) Pollution from installations and devices used in exploration or exploitation of the natural resources of the seabed and subsoil in particular measures for preventing accidents and dealing with emergencies ensuring the safety of operations at sea and regulating the design, construction, equipment operation and manning of such installations or devices.
d) Pollution from other installations and devices operating in the marine environment in particular measures from preventing accidents and dealing with emergencies, ensuring the safety of operation and manning of such installations or devices.”
For the purpose of this study, these sources can safely be categorized into these
Pollution from vessels through accidental or deliberate discharge of substances
Pollution from Dumping Radioactive Waste
Pollution from Seabed Activities
Pollution from or through the Atmosphere
Pollution from Land Based Sources
Pollution from vessels through accidental or deliberate discharge of substances The regulation of pollution from vessels has been a matter of international concern for many years. Not only the LOSC but also a number of other relevant international instruments bear witness to the more advanced level of regulation of vessel source of pollution in comparison with the other sources of pollution. In view of the relatively minor contribution of vessel source of pollution to overall marine pollution this appears even more remarkable. The chief sea based pollutant is oil, the growth of ocean transport resulted in oil pollution. Though the quantum of oil discharged in sea is indeed great, the greater part of pollution is not accidental but through the normal cleaning operation of all kinds of ships. Thus the pollution of marine environment from ships may originate from a variety of sources, including accidental and operational pollution. Accidental pollution may result from the loss of cargo or fuel after a grounding or collision and from minor accidents on board such as a house breaking or a tank overflowing operational pollution results from the discharge of shipboard generated wastes such as garbage, sewage, dirty ballast water and tank washings as well as from engine exhaust and tank venting emission.
Marine pollution from vessels can be divided into five categories:
Operational discharge from tankers during tank cleaning.
Bilge discharges from all vessels
Spills due to marine accidents i.e. Collision, grounding explosion etc.
Spills during loading, discharging transferring, bunkering.
Deliberate discharge of refuse sewage garbage hold sweepings etc.
All five have a human element involved. As a matter of fact maritime accidents without some type of human fault are negligible.162
The International Convention for the Prevention of Pollution of the Sea by Oil, 1954 is the first treaty for the reduction of oil pollution of the sea. It applies to ships registered in the territories of a contracting Government except tankers of under 150 tons gross tonnage and other ships of under 500tons gross tonnage, provided that contracting Governments will take the necessary steps, so far as is reasonable and practicable to apply the requirements of the convention to such ships also, having regard to their size, service and type of fuel used and to ships engaged in whaling.163The convention prohibited the discharge of oil or oily mixture from a ship when the ship is proceeding en route. Maintenance of oil records is mandatory under the convention, not keeping of accurate oil records, and discharge of oil other than the prescribed one are offences punishable under the Law of the relevant country. The contracting government may impose penalties which must be adequate in severity to discourage unlawful discharge and must be adequate in severity to discourage unlawful discharge and must not be less than the penalties which may be imposed under the law of that territory in respect of the same infringements within the territorial sea. After one year of the acceptance of the convention, a ship is to be fitted so as to prevent the escape of oil into bilges. As far as possible carrying water ballast in oil fuel tank is to be avoided. Ports are to be provided with facilities adequate for the reception of residues and oil mixtures.
Amendments were made to the 1954 Oil Pollution Convention in 1969. It was amended to provide for more stringent requirements for operational discharges. In 1971, the convention was amended to impose new standards on the construction of oil tankers. This Convention has been superseded by the 1973/78 MARPOL. The MARPOL convention is the main international convention covering prevention of pollution of the marine environment by ships from operational or accidental causes. It is a combination of two treaties adopted in 1973 and 1978 respectively and updated by amendments through the years. The International Convention for the prevention of pollution from ships (MARPOL) was adopted on November 2 1973 at IMO. It covers pollution by oil, chemicals, harmful substances in packaged form, sewage and garbage. The protocol of 1978 relating to the 1973 convention was adopted at a conference on Tanker safety and pollution prevention in February 1978.As the MARPOL convention had not yet entered into force, the 1978 MARPOL protocol absorbed the parent convention. The combined instrument is referred to as the International Convention for the prevention of marine pollution from ships,1973 as modified by the protocol of 1978 relating thereto (MARPOL 73/78) and it entered into force on 2 October 1983.The convention includes six technical Annexes.164 Compensation for loss or damage resulting from the escape or discharge of oil from ships is governed by two conventions. The first lays down a regime of civil liability, the second set up an international compensation fund to cater for those instances where the civil liability regime does not afford compensation to the injured party. The first, the International Convention on Civil liability for oil pollution Damage 1969, contains uniform international rules and procedures under which ship owners are made strictly liable for certain types of oil pollution damage. It imposes upon the bulk carriers of persistent oils the obligation to effect insurance against the liabilities imposed by the convention. The civil liability convention came into force in 1975 and there were amendments to its financial provisions by protocol in 1976.165 Although the 1969 Civil Liability Convention provided a useful mechanism for ensuring the payment of compensation for oil pollution damage, it did not deal satisfactorily with all the legal, financial and other questions raised during the conference adopting the Civil Liability Convention.166 The 1969 Brussels conference considered a compromise proposal to establish an international fund, to be subscribed to by the cargo interests, which would be available for the dual purpose of, relieving the ship-owner of the burden by the requirements of the new convention and, providing additional compensation to the victims of pollution damage in cases where compensation under the 1969 convention was inadequate or unobtainable. On the recommendation of the conference to IMO, the legal committee prepared a draft articles and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (IOPC Fund) was adopted at a conference held in Brussels in 1971. The 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage provides for the payment of compensation to any person suffering oil pollution damage, as defined in the civil liability convention, if that person is unable to obtain full and adequate compensation for one of the reasons:
That no liability for the damage arises under the civil liability convention, because the ship owner can invoke one of the exemptions from liability set out in that convention.
The ship owner is financially incapable of meeting his obligations under the civil liability convention and his insurance is insufficient to satisfy the compensation claims.
The damage exceeds the ship owner’s limit of liability under the civil liability convention.167
The Protocol of 1992 to the CLC convention was entered into force in 1996 with the main purpose to modify the entry into force requirements and increase compensation amounts. It established a separate compensation fund known as the 1992 fund, which is managed in London by a secretariat, as with the 1971 Fund. From 16 May 1998, parties to the 1992 protocol ceased to be parties to the 1971 fund due to the mechanism for compulsory denunciation of the “old” regime established in the 1992 protocol. With the departure of these states, the total quantity of contributing oil on the basis of which contributions to the Fund are assessed has been dramatically reduced. Thus if a tanker spill should occur, the remaining 1971 fund member states would not have the financial protection which they would expect under the provisions of the 1971 fund convention. Thus the contracting parties to the 1971 convention on 27 September 2000 signed a protocol allowing for the early winding up of the 1971 fund, thereby this convention ceased to be in force on 24 May 2002.
The UNCLOS 1982 strike a crucial balance between the rights of coastal states to protect and preserve their off shore environment and the freedom of navigation of foreign vessels in areas under jurisdiction of the coastal state. In relation to standard setting states are obliged first to establish, through a competent international organization or diplomatic conference, international rules regulating vessel source pollution (Art.211 Para 1). Here international rules and standards enjoy pride of place. States are obliged to adopt laws applicable to their national vessels that are to have at least the same effect as that of generally accepted international rules and standards (Art 211 Para 2).168 In accordance with Article 211 Para 3 “States which establish particular requirements for the prevention, reduction and control of pollution of the marine environment as a condition for the entry of foreign vessels into their ports or internal waters or for a call at their off-shore terminals shall give due publicity to such requirements and shall communicate them to the competent international organization. Whenever such requirements are established in identical form by two or more coastal states in an endeavour to harmonize policy, the communication shall indicate which states are participating in such cooperative arrangements. Every state shall require the master of a vessel flying its flag or of its registry, when navigating within the territorial sea of a state participating in such cooperative arrangements, to furnish upon the request of that state, information as to whether it is proceeding to a state of the same region participating in such cooperative arrangements and if so, to indicate whether it complies with the port entry requirements of that state. This article is without prejudice to the continued exercise by a vessel of its right of innocent passage or the application of article 25 paragraphs 2.”
Pollution by Dumping Until the 1970s international law had paid little attention to the problems of marine pollution by dumping operations of all kinds.169United Nations Conference on the Law of the Sea, held in 1958 was devoted to this issue, the conference limited itself to recognizing that there was a serious and genuine apprehension on the part of many states that nuclear explosion constituted infringement of the freedom of the seas and accordingly, a decision was taken to refer the whole matter to the General Assembly of the United Nations.
The conference included a mild provision on the subject in the Convention on the High Seas, Article 25 of the same Convention prescribes that “every state shall take measures to prevent pollution of the seas from the dumping of radioactive waste, taking into account any standards and regulations which may be formulated by the competent international organization.” It further states that “all states shall cooperate with the competent international organization in taking measures for the prevention of pollution of the seas or air space above, resulting from any activities with radioactive materials or other harmful agents.”170 In addition, the conference adopted a resolution on pollution of the High Seas by Radioactive Materials. That resolution recommended that the International Atomic Energy Agency (IAEA) should “pursue whatever studies and take whatever action is necessary to assist states in controlling the discharge or release of radioactive materials in to the sea, in promulgating standards and in drawing up internationally acceptable regulation to prevent pollution of the sea by radioactive materials in amounts which would adversely affect man and his marine resources.”
A comprehensive approach on the question of dumping was initiated in the United States in 1970 both from a scientific and a legal point of view. The final conclusion of the report was that there was an urgent need for an anti-dumping policy, both on the national and international levels. The United States Government prepared a draft convention for the Regulation of Transportation for Ocean dumping; this was submitted to the first meeting of the Intergovernmental Working Group on Marine Pollution (IGWMP) held in London. The question was however taken up only in the second IGWMP held in Ottawa, when three drafts were submitted by United States, Spain and Sweden. The IGWMP approved some draft articles on dumping a draft Convention for the Prevention of Marine Pollution by Dumping was produced in Reykjavik at the Intergovernmental meeting from 10 to 15 April 1972.A conference held in London from 30 October to 13 November 1972 adopted the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, it was entered into force on 30 August 1975.
The 1972 London convention is an instrument of global application to all marine waters other than internal waters. The object of this convention was to prevent the pollution of the sea by the dumping of waste and other matter that is liable to create hazards to human health, harm to living resources and marine life. Dumping is define by Article III of the convention as
“i) Any deliberate disposal at sea of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea or
ii) Any deliberate disposal at sea of vessels, aircraft, platforms or other manmade structures at sea.”171
The convention further states in Article III(1)(b) that the “Dumping does not include the disposal at sea of wastes or other matter incidental to or derived from the normal operations of vessels, aircraft, platforms or other man-made structures at sea and their equipment, other than wastes or other matter transported by or to vessels, aircraft, platforms or other man made structures at sea, operating for the purpose of disposal of such matter or derived from the treatment of such wastes or other matter on such vessels, aircraft, platforms or structures.” The disposal of wastes and other matter directly arising from or related to exploration, exploitation and associated off-shore processing of sea bed mineral resources are not be covered by the provisions of this convention. In London convention three categories wastes are established, The dumping of highly hazardous waste are listed in Annex I (the black list),this is prohibited, except in emergency situations and after consultation with countries likely to be affected and IMO. The prohibition in Annex I do not apply to substances which are rapidly rendered harmless by physical, chemical or biological processes in the sea, provided they do not make edible marine organisms unpalatable or endanger human health or that of domestic animals. The dumping of substances in Annex II (grey list) requires a prior ‘special’ permit. Annex III lay out general technical factors to be considered in establishing criteria for issuance of ocean dumping permit.
As adopted in 1972, the London Convention included high-level radioactive wastes in Annex I but intermediate level radioactive wastes and low level radioactive wastes were listed in Annex II and therefore could be dumped at sea by special permit. In 1983, three proposals were put forward at the seventh consultative meeting, proposing an amendment to the London Convention to include all radioactive wastes in Annex I. An expanded panel of experts concluded in 1985 that “no scientific or technical grounds could be found to treat the option of sea dumping differently from other available options when applying internationally accepted principles of radiation protection to radioactive waste disposal.”172 At the ninth consultative meeting in 1985, it was generally agreed that the scientific report had not shown the dumping of low level radioactive wastes at sea to be environmentally dangerous but neither had it shown that dumping was harmless. The contracting parties decided to take a roader view of the issue, recognizing that there were political, legal, social and economic issues involved besides the purely technical aspects. The tenth consultative meeting in 1986 established an Intergovernmental Panel of Experts on Radioactive Waste Disposal (IGPRAD) to consider the wide political, legal, economic and social aspects of low-level radioactive waste dumping at sea. In November 1993,the sixteenth consultative meeting adopted by a majority vote, the prohibition of dumping of all types of radioactive waste to come into effect on 20 February 1994.The meeting also adopted the prohibition of dumping of industrial wastes to come into effect by 1 January 1996.
Article 210 of UNCLOS 1982 deals with dumping provides an obligation on the part of the states to adopt laws and regulations and measures necessary to prevent, reduce and control pollution from dumping. Dumping within the territorial sea and the exclusive economic zone or into 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 consideration. Importance is also given to national legislation, National laws, regulations and measures shall be no less effective in preventing, reducing and controlling such pollution than the global rules and standards.
Pollution from Seabed Activities
Pollution from seabed activities is caused by the release of harmful substances arising directly from the exploration, exploitation and processing of sea bed .International legislation on this source of pollution is undeveloped. UNCLOS establishes the basic framework. Article 208 of UNCLOS requires “coastal states to adopt laws and regulations to prevent, reduce and control pollution of the marine environment arising from or in connection with seabed activities subject to their jurisdiction and from artificial islands, installations and structures under their jurisdiction’, it also states that
‘Such laws, regulations and measures shall be no less effective than international rules, standards and recommended practices and procedures and States shall endeavour to harmonize their policies in this connection at the appropriate regional level. Especially through competent international organizations or diplomatic conference, shall establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution of the marine environment’. Article 145 of UNCLOS will adopt rules, regulations and procedures for the seabed and oceans floor and subsoil beyond the limits of national jurisdiction.
The 1992 OSPAR Convention requires the parties to prevent and eliminate pollution from offshore sources, including accidents and comply with rules set out in Annex III. Dumping from offshore installation placed on the continental shelf is regulated by 1972 London convention and the 1976 Mediterranean convention. UNEP in 1982 adopted Guidelines on offshore Mining and Drilling. The 1989 Kuwait protocol concerning Marine pollution Resulting from Exploration of the continental shelf (1989 Kuwait Exploration protocol) and the 1994 Mediterranean protocol concerning the protection of the Mediterranean Sea Against pollution resulting from exploration and exploitation of the continental shelf and sea bed and its subsoil(1994 Madrid offshore Protocol) are the only international agreements which address the problem.
Pollution from or through the Atmosphere
Article 212 of UNCLOS states that ‘States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from or through the atmosphere, applicable to the air space under their sovereignty and to vessels flying their flag or vessels or aircraft of their registry, taking into account internationally agreed rules, standards and recommended practices and procedures and the safety of air navigation. The States shall also take other measures as may be necessary to prevent, reduce and control such pollution. Especially through competent international organizations or diplomatic conference shall endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control such pollution.’ some of the conventions like the OSPAR, the Baltic Convention include pollution through the atmosphere as land based source. Prior to UNCLOS the only international instrument of significance was the 1963 Test Ban Treaty which has protected the marine environment from atmospheric nuclear tests.173
Pollution from Land Based Sources Pollution of the marine environment from land based sources is the principal source of ocean pollution, which arises from substances and energy entering the marine environment by run-off from land, rivers, pipelines and other outfall structures. It also arises from or through the atmosphere, generated principally from land based activities, also from ships and aircrafts. Article 207174 of the UNCLOS, the 1974 Paris Convention and the 1992 OSPAR Convention, 1992 Baltic Convention, the 1995 Global Programme of Action for the protection of the marine environment from land based activities with numerous non binding international instruments provides for the development of national measures. The pollution from land based sources has been dealt in detail in the chapter four of this research.
International Regulation Designed to Control Marine Pollution
Pollution of the seas is one of the global problems in the field of international environmental protection. Freedom of high seas is not absolute; it is to be exercised in a manner which does not degrade freedom of other states to use seas. The earliest approaches to the basic question of state liability for environmental damages extending beyond territorial limits are said to be based on the principle of non-interference established by customary International Law expressed in the maxim sic utero tuo ut alienum laedas meaning use your property in such manner as not to injure that of other or by interference in another territory. State responsibility for extra territorial injury might be traced from the analogy of the doctrine of equitable utilization applied to international lakes and rivers.
Convention on Prevention of Pollution of Seas by Ships
The Inter Governmental Maritime Consultative Organization (IMCO) at the initiative of General Body with delegates from 32 states, representing virtually all the shipping in the world met in 1953 and adopted first Convention for the Prevention of Pollution of Sea by Oil 1954. It prohibits the discharge of oil or oil mixture by tankers within prohibited zones. The same has been amended in 1962, 1969, 1971. In 1973 International Convention for the prevention of pollution from ships1973 as modified by the Protocol of 1978 adopted provisions designed to replace the 1954 Oil Convention.
Geneva Convention 1958
The problem of oil pollution of seas attracted the attention of International Law commission. The first law of sea conference at Geneva 1956 comprehensively deals with the prevention of oil pollution. The convention did not make any distinction between the accidental and deliberate pollution. It contains only two provisions relating to marine pollution Article 24 recognized the potential harmful effects of oil pollution from ships and from off shore oil exploration and exploitations. Article 25 required states to take measures to prevent pollution of the seas by the dumping of radioactive waste.
The International Maritime Organization (IMO) International Maritime Dangerous Goods Code
The code classifies dangerous goods and sets out detained requirements as to marking labeling, packaging and documentation. It updated on a regular basis the IMO has recommended that states adopt it as the basis for national legislation.
International Legal Conference on Marine Pollution Damages
The IMCO, now IMO convened a conference on marine pollution damages in Brussels in 1969 which adopted two instruments namely international Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (1969 Intervention Convention) and International Convention on Civil Liability for Oil Pollution Damages. The Intervention Convention allows action by coastal states in an area of the global commons without affecting the high seas freedoms or other rights and duties. It allows parties to ‘take such measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interest from pollution or threat of pollution of the sea by oil, following upon a maritime casualty or acts related to such a casualty, which may reasonably be expected to result in major harmful consequences.’175 The 1969 Civil Liability Convention creates a scheme of liability for oil pollution damage caused by oil tankers. The Convention holds ship-owners strictly liable for oil pollution damage, without need to prove negligence or fault, except in cases of war and insurrection. The Fund convention 1971, provide additional compensation so that within the limits of the funds total liability the victims are fully and adequately compensated. It provides liability when no liability arises under Civil Liability Convention
United Nations Conference on Human Environment 1972
The 1972 Stockholm Declaration on the Human environment has established important principles upon which international rules have been developed to apply to whole human environment, including the protection and preservation of the marine environment. The Stockholm documents had an immediate and direct impact on the work of the seabed committee, and in particular on its subcommittee III. This subcommittee was responsible for the preparing draft articles on the protection and preservation of the marine environment for consideration by the conference on the law of the sea.
The London Convention 1972, MARPOL Convention 1973/78, as discussed deal with pollution from dumping and pollution by oil, chemicals, harmful substances in packaged form, sewage and garbage. the IMO Conventions and Instruments although technically dealing with maritime safety are also relevant to prevention of pollution of the marine environment, of this the 1974 Convention on Safety of life at Sea (SOLAS), 1972 International Regulations for Preventing Collisions at Sea and 1978 standards of Training certification and watch keeping are of importance.