Protection of the marine environment


PROBLEM 7-1 A DISPUTE BETWEEN NEIGHBORING STATES OVER MARINE POLLUTION



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PROBLEM 7-1

A DISPUTE BETWEEN NEIGHBORING STATES OVER MARINE POLLUTION

State A and State B are located adjacent to one another and share a common land border. The City of X, which is located in State A on the border of State B, operates an ocean outfall that from time to time emits raw sewage and toxic chemicals into the ocean waters shared by States A and B. In addition, a refinery in State A owned by the Acme Corporation, a private company, discharges oily effluent into the sea, which pollutes the maritime waters bordering States A and B. Both the ocean outfall operated by City of X and the refinery are in compliance with the national pollution laws of State A. Both State A and State B are parties to UNCLOS.

Does UNCLOS create an international cause of action in favor of State B against State A? Discuss.

PROBLEM 7-2

A DISPUTE BETWEEN NEIGHBORING STATES OVER FISHING

States W and Z, both parties to UNCLOS, are adjacent coastal states and share a common land border. A productive coastal fishery, the Banks, is located some 60 nautical miles offshore both countries and is exploited by fishing vessels of both countries. Both states W and Z have established 200 nautical mile EEZs, but the lateral maritime boundary between W and Z is disputed; both states claim the entire fishing Banks as within their respective EEZ. In addition, while State W has adopted and enforces strict catch limits for fishing resources on the Banks, state Z, a developing country, does not enforce any management standards, so that fishing stocks on the Banks are depleted despite the strict regulations applied by state W.

How should the dispute between state W and state Z be settled under UNCLOS? Discuss.

SECTION 11. The Principal International Organizations Involved in Protecting the Marine Environment

Two international organizations sponsor conventions and international agreements concerning activities that degrade the marine environment: the International Maritime Organization (IMO), based in London, and the United Nations Environment Program, based in Nairobi, Kenya.

A. The International Maritime Organization (JMO)

The Convention establishing the International Maritime Organization (IMO) was adopted in Geneva in 1948 and IMO first mat in 1959. IMO's main task has been to develop and maintain a comprehensive regulatory framework for shipping and its remit today includes safety, environmental concerns, legal matters, technical co-operation, maritime security and the efficiency of shipping.

A specialized agency of the United Nations with 169 Member States and three Associate Members, IMO is based in the United Kingdom with around 300 international staff.

IMO's specialized committees and sub-committees are the focus for the technical work to update existing legislation or develop and adopt new regulations, with meetings attended by maritime experts from Member Governments, together with those from interested intergovernmental and non-governmental organizations.

The result is a comprehensive body of· international conventions, supported by hundreds of recommendations governing every facet of shipping. There are, firstly, measures aimed at the prevention of accidents, including standards for ship design, construction, equipment, operation and manning - key treaties include SOLAS, the MARPOL convention for the prevention of pollution by ships and the STCW convention on standards of training for seafarers.

Then there are measures which recognize that accidents do happen, including rules concerning distress and safety communications, the International Conll8ntion on Search and Rescue and the International Convention on Oil Pollution Preparedness, Response and Cooperation.

Thirdly, there are conventions which establish compensation and liability regimes – including the International Convention on Civil Liability for Oil Pollution Damage, the convention establishing the International Fund for Compensation for Oil Pollution Damage and the Athens Convention covering liability and compensation for passengers at sea.

Inspection and monitoring of compliance are the responsibility of member States, but the adoption of a Voluntary IMO Member State Audit Schema is playing a key role in enhancing implementation of IMO standards. The first audits under the Voluntary IMO Member State Audit Scheme were completed at the end of 2006 but the IMO Assembly has agreed a program to make this schema mandatory, with the entry into force of the mandatory audit scheme likely to be in 2015.

List of IMO Conventions

Related Protocols are referred to under the main Convention

Most important IMO Conventions

International Convention for the Safety of Life at Sea (SOLAS), 1974, as amended

International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto and by the Protocol of 1997(MARPOL)

International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) as amended, including the 1995 and 2010 Manila Amendments



Other conventions relating to maritime safety and security and ship/port Interface

Convention on the International Regulations for Preventing Collisions at Sea (COLREG), 1972

Convention on Facilitation of International Maritime Traffic (FAL), 1965

International Convention on Load Lines (LL), 1968

International Convention on Maritime Search and Rescue (SAR), 1979

Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation

(SUA), 1988, and Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed

Platforms located on the Continental Shelf (and the 2005 Protocols)

International Convention for Safe Containers (CSC), 1972

Convention on the International Maritime Satellite Organization (IMSOC), 1976

The Torremolinos international Convention for the Safety of Fishing Vessels (SFV), 1977

International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel (STCW-F), 1995

Special Trade Passenger Ships Agreement (STP), 1971 and Protocol on Space Requirements for Special Trade Passenger Ships, 1973

Other conventions relating to prevention of marine pollution

International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (INTERVENTION), 1969

Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (LC), 1972 (and the 1996 London Protocol)

International Convention on Oil Pollution Preparedness. Response and Co-operation (OPRC), 1990

Protocol on Preparedness, Response and Co-operation to pollution Incidents by Hazardous and Noxious Substances, 2000 (OPRC-HNS Protocol)

International Convention on the Control of Harmful Anti-fouling Systems on Ships (AFS), 2001

International Convention for the Control and Management of Ships' Ballast Water and Sediments, 2004

The Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009



Conventions covering liability and compensation

International Convention on Civ11 Liability for Oil Pollution Damage (CLC), 1969

1992 Protocol to the International Convention on the Establishment of an International Fund for

Compensation for Oil Pollution Damage (FUND 1992)

Convention relating to Civil Liability in the Field of Maritime Carnage of Nuclear Material (NUCLEAR), 1971

Athens Convention relating to the Carriage of Passengers and their Luggage by Sea (PAL), 1974

Convention on Limitation of Liability for Maritime Claims (LLMC), 1976

International Convention on Liability and Compensation for Damage in Connection w1th the Carnage of Hazardous arid Noxious Substances by Sea (HNS), 1996 (and its 2010 Protocol)

International Convention on Civil Liability for Bunker Oil Pollut1on Damage, 2001

Nairobi International Convention on the Removal of Wrecks, 2007



Other subjects

International Convention on Tonnage Measurement of Sh1ps (TONNAGE), 1969

International Convention on Salvage (SALVAGE), 1989

NOTE ON THE WORK AND WORKINGS OF THE INTERNATIONAL MARITIME ORGANIZATION

The work of the International Maritime Organization (IMO) extends beyond protection of the marine environment to include virtually all matters pertaining to shipping and the oceans. IMO's work includes maritime safety, maritime security, standards for workers in the shipping industry, and the facilitation of maritime navigation and shipping. The IMO web site is http://www.imo.org.

IMO works through an Assembly, which consists of all IMO members, and a Council of 40 members elected by the Assembly for two-year terms. The Council members must include 10 members with the largest interest in international shipping services; 10 members with the largest interest in international seaborne trade; and 20 members with special interests in maritime transport and navigation. The work of the Assembly and Council is assisted by. (1) a Maritime Safety Committee (MSC), (2) a Marine Environmental Protection Committee (MEPC) and various subcommittees. The IMO Legal Committee may consider any legal matter involving IMO's work. In addition, a Technical Cooperation Committee aids the implementation of technical standards and solutions, and a Facilitation Committee considers how the efficiency of international shipping may be enhanced. IMO has a full-time Secretariat led by a Secretary-General.

The IMO Assembly meets every two years, although special sessions can be called. The Council is IMO's main body; the Council adopts IMO's budget, work program and makes financial decisions. IMO takes decisions commonly by consensus.



PROBLEM 7-3

ADOPTING A NEW IMO STANDARD

Suppose that an environmental NGO has drawn to the attention of your nation--a member of IMO--that an important new technological breakthrough has made it easier and cheaper to control emissions into the air of major pollutants commonly emitted by ships' engines. You understand that the general subject of air pollution from ships is covered by the International Convention for the Prevention of Pollution from Ships (1973 and 1978), known as MARPOL. Your nation believes that the technology in question should be drawn to the attention of the entire IMO membership, and that MARPOL should be amended to require the new technology as an international shipping standard.

Suppose also that your nation believes that an entirely new IMO initiative should be started to adopt international standards for the protection of coral reefs in the marine environment.

How will your nation's delegation to IMO put forward these proposals, and how might they be handled by IMO so that they become international rules of law?



  1. Consider how and where to raise these matters at IMO; what do you suggest?

  2. Should your delegation carefully prepare before making your intervention at IMO?

  3. Your delegation's proposals may be referred to an IMO Committee or subcommittee or a Working Group may be established to develop them further. What committees will likely consider them?

  4. The subcommittee or Working Group may solicit information from UN specialized agencies or from IMO member states or NGOs.

  5. The subcommittee will report to the relevant full committee, to the Council or to the Assembly.

  6. A draft international instrument may be reported to the Council with recommendations by the relevant subcommittee, Working Group, and committees.

  7. The Council or Assembly may decide to convene an international conference to consider the matter and the draft international instrument.

  8. At the conference members will discuss the proposal and the draft instrument and amendments may be adopted. Observers will be invited to the conference, including NGO, industry representatives, and intergovernmental agencies.

  9. If the conference formally adopts (by consensus) a draft international convention or an amendment to an existing IMO convention, states may sign the convention "subject to ratification, acceptance, approval, and accession." What is the meaning of this phrase and this process? See the Vienna Convention on the Law of Treaties, 1969, Articles 12 and 18. The words "acceptance" and "approval" basically mean the same as ratification but the process of ratification of a treaty is controlled by national constitutional law, which may require special proceedings and the passage of domestic legislation. An IMO multilateral treaty will be declared open for signature for a specified period of time. Accession is the method of adhering to a treaty by a state that did not sign while the treaty in question was open for signature.

  10. A multilateral convention will enter into force only when it has been ratified (accepted or approved) by the specified number of governments as stated in the convention.

  11. An amendment to an existing IMO convention may come into force much more quickly than a new IMO convention. In 1971, because of concern over the delay that commonly attended IMO convention amendments coming into force, the IMO Assembly adopted Resolution A.249(VII), which specifies that IMO convention amendments should come into force through a special "Tacit Acceptance Procedure". Under this procedure, which is a feature of most IMO conventions, the IMO body which adopts the amendment at the same time fixes a time period within which contracting parties to the particular convention have the opportunity to notify either their acceptance or rejection of the amendment. If they remain silent and the period of time specified expires, the amendment is considered to have been accepted by the party.12

  12. The enforcement of IMO conventions is up to member states; IMO has no internal enforcement power.

B. The United Nations Environment Program and the Regional Seas Program

The United Nations Environment Program, which we covered in chapter 2, is active in combating marine pollution and dealing with maritime environmental problems though various Regional Seas Programmes. UNEP's web site contains the following description of such programs.

The Regional Seas Proqramme, launched in 1974 in the wake of the 1972 United Nations Conference on the Human Environment held in Stockholm, is one of UNEP's most significant achievements in the past 35 years.

The Regional Seas Programme aims to address the accelerating degradation of the world's oceans and coastal areas through the sustainable management and use of the marine and coastal environment, by engaging neighboring countries in comprehensive and specific actions to protect their shared marine environment. It has accomplished this by stimulating the creation of Regional Seas programme prescriptions for sound environmental management to be coordinated and implemented by countries sharing a common body of water.

Today, more than 143 countries participate in 13 Regional Seas programmes established under the auspices of UNEP: Black Sea, Wider Caribbean, East Asian Seas, Eastern Africa, South Asian Seas, ROPME Sea Area, Mediterranean, North-East Pacific, Northwest Pacific, Red Sea and Gulf of Aden, South-East Pacific, Pacific, and Western Africa. Six of these programmes, are directly administered by UNEP.

The Regional Seas programmes function through an Action Plan. In most cases the Action Plan Is underpinned with a strong legal framework In the form of a regional Convention and associated Protocols on specific problems. Furthermore, 5 partner programmes for the Antarctic, Arctic, Baltic Sea, Caspian Sea and North-East Atlantic Regions are members of the RS family.

All programmes reflect a similar approach, yet each has been tailored by its own governments and institutions to suit" their particular environmental challenges.

The work of Regional Seas programmes is coordinated by UNEP's Regional Seas Branch based at the Nairobi Headquarters. Regional Coordination Units (RCUs), often aided by Regional Activity Centres (RACs) oversee the implementation of the programmes and aspects of the regional action plans such as marine emergencies, information management and pollution monitoring.



Key Issues

Coastal Area Management

Coastal Zone Management

From the earliest day of the Regional Seas Programme, environmental management has always been a key chapter of the Regional Seas action plans, beginning with the Mediterranean. more . . .

Coastal Development

Some 37% of the world’s population lives within 100 km of the coast, at a population density twice the global average. more . . .

Ecosystems and Biodiversity

Coral reefs

Coral reefs are among the most productive and diverse of all natural ecosystems. Recent decades have been catastrophic for them, however; some 10% of the world's reefs may already have been degraded beyond (recovery and another 30% are In decline. more . . .

Marine Mammals

Many species of whales, seals and dolphins are threatened world-wlde. Hundreds of thousands of dolphins and whales die each year In fishing nets. more . . .

Marine Protected Areas

The RSCAPs are considered to have a major role to play In the promotion of the Jakarta Mandate of the Convention on Biological Diversity (CBD) at the regional level. more . . .

UNEP Regional Seas Programme and Marine and Coastal Invasives - April 2006

Our mandate can be found In ceo decisions Vl/23 1 / and VII/5. Decision Vl/23 2/ paragraph 26(e) requested the Executive Secretary, In collaboration with the Global Invasive Species Programme (GISP) and other relevant organizations, to develop a joint programme of work on invasive alien species (IAS). more . . .

Large Marine Ecosystems (LMEs)

Large Marine Ecosystems (LMEs) are regions of ocean encompassing coastal areas fnom river basins and estuaries to the seaward boundaries of continental shelves and the outer margins of the major current systems. These areas of the ocean are characterized by distinct bathymetry, hydrography, productivity and trophic interaction. They provide a flexible approach to ecosystem-based management by identifying driving forces of ecosystem change, within the framework of sustainable development. UAEs are located within Regional Seas areas. more . . .

Land-based Sources of Pollution

Municipal, Industrial and agricultural wastes and run-off account for as much as 80% of all marine pollution. Sewage and waste water, persistent organic pollutants (including pesticides), heavy metals, oils, nutrients and sediments. more . . .

Marine Litter

Marine litter is a comprehensive problem, with significant implications for the environment and human activity all over the world. It is found in all seas; not only in densely populated regions, but also in remote places far away from any obvious sources.

NOTE

The most extensive of the U N regional seas program is the oldest one, the Barcelona Convention for protection of the Mediterranean Sea. The original Barcelona Convention dates from 1976, and entered into force in 1978. The original convention was modified by extensive amendments in 1995, and the amended document is known as the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean, in force since 2004 for twenty-one riparian states and the European Union. The Barcelona Convention (1995) is reprinted in the Documentary Supplement.

The parties to the Barcelona Convention have adopted an Action Plan for the Protection of the

Marine Environment and Sustainable Development of the Coastal Area of the Mediterranean ( 1995) as well as protocols covering specific aspects of the Mediterranean Sea:




  • Protocol for the prevention and elimination of pollution in the Mediterranean Sea by dumping from ships and aircraft or incineration at sea.




  • Protocol concerning cooperation in combating pollution of the Mediterranean Sea by oil and other harmful substances in cases of emergency.




  • Protocol for the protection of the Mediterranean Sea against pollution from land-based sources and activities.




  • Protocol concerning specially protected areas and biological diversity in the Mediterranean .




  • Protocol concerning cooperation in preventing pollution from ships and, in cases of emergency, combating pollution of the Mediterranean Sea.




  • Protocol on Integrated Coastal Zone Management in the Mediterranean.




  • Protocol for the Protection of the Mediterranean Sea against pollution resulting from exploration and exploitation of the continental shelf and the seabed and its subsoil.




  • Protocol on the prevention of pollution of the Mediterranean Sea by transboundary movements of hazardous wastes and their disposal.

This comprehensive approach toward protection of the Mediterranean Sea depends for implementation on actions by national governments and the EU. A distinctive feature of the Barcelona Convention and its protocols is a non-adversarial, transparent and relatively effective compliance mechanism that is aimed at providing advice and technical assistance to parties facing problems of implementation. See http://www.unepmap.org.



SECTION III. LAND BASED MARINE POLLUTION AND INTERNATIONAL LAW
The first efforts to deal with land-based marine pollution in international law can be traced to the adoption of a regional convention, the 1974 Convention for the Prevention of Marine Pollution from

Land Based Sources, reprinted in 13 ILM 352 (1974), known as the Paris Convention, which entered into force in 1978. The parties to the Paris Convention were developed European states, and the Convention applied to the area of the Northeast Atlantic Ocean and the North Sea. The Paris Convention established the Paris Commission to establish "best environmental practices" to serve as international standards for land based municipal, industrial and agricultural pollution emanating from land based sources. In 1992, the Paris Commission was merged with the Oslo Commission created by the Oslo Convention (the Convention for the Prevention of Marine Pollution by Dum ping from Ships and Aircraft (1972). In 1998, a replacement for the Paris and Oslo Conventions entered into force: the Convention for the Protection of the Marine Environment of the North-East Atlantic (the OSPAR Convention), and the two Commissions became the OSPAR Commission.


At the present time the OSPAR Convention operates as an Independent Regional Seas Programme covering the north-east Atlantic Ocean and the North Sea ranging from the North Pole to the Straits of Gibraltar. The Convention's management body, the OSPAR Commission, based in London, brings together 15 state-parties, the European Union, and observers from some 27 non-governmental organizations, representing both environmental groups and industry. The OSPAR Commission and a small Secretariat, important treaty bodies based in London, continue to work on land based pollution as well as other problems. Over the years the OSPAR Commission has formulated and issued several hundred Decisions, Recommendations, Agreements, and Guidances concerning a wide range of aspects of land based marine pollution. The OSPAR Convention is based upon the precautionary principle; the polluter pays principle; Best Available Techniques (BAT); and Best Environmental Practices ( BEP). See the OSPAR web site, http://www.ospar.org.
Current international law norms applicable to land-based pollution may be classified into several categories.
First, customary law norms clearly apply. Foremost among these rules of customary international law is the Harm Prevention Principle, which we have already covered in chapters two and three.

This is the rule that no state has the right to use or permit the use of its territory in such a manner as to cause injury in or to the territory of another state or areas beyond national jurisdiction.13 However, there are many problems with using this rule in a particular case. Among such problems are (1) the abstract nature of the rule; (2) the fact that liability under this rule is based on an obligation to use "due diligence", which is another vague concept. It is also uncertain how due diligence should be interpreted with respect to developing states and the principle of common but differentiated responsibilities. Is there a double standard for due diligence?


Second, the UNCLOS contains norms that apply to land based pollution. UNCLOS Article 194 (1), (2) and (3) address aspects of land based pollution, especially Article 194 (3), which requires state parties to minimize to the fullest possible extent "the release of toxic, harmful, or noxious substances, especially those which are persistent, from land based sources." In addition, Article 207 of UNCLOS deals specifically with land based pollution, and Article 213 requires states to enforce the laws and regulations adopted under Article 207. But Article 194 (1) may contain a double standard in that it says that state parties must reduce pollution using "the best practicable means at their disposal and in accordance with their capabilities." Article 300 of UNCLOS creates an obligation not to exercise the rights they enjoy in a way that abuses those rights. But while the doctrine of abuse of rights may be an instrument to combat land based pollution, the precise criteria for the application of this doctrine remain obscure.
Third, non-binding instruments are a source of law concerning land based pollution. We have already seen that the Harm Prevention Principle, discussed above, was formulated as Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration. What was Principle 2 1/2 is now, of course, customary international law. An important non-binding soft law document is the Montreal for the Protection of the Marine Environment against Pollution from Land-Based Sources (1985). The Montreal Guidelines stress the importance of "a comprehensive environmental management approach" (Guideline 10), and enumerate various measures, such as environmental impact assessment, monitoring, notification, information exchange and consultation, scientific and technical cooperation, assistance to developing countries, and the development of control strategies. The Montreal Guidelines also introduce the concept of specially protected marine areas. (Guideline 7). Another non-binding instrument is Agenda 21, Chapter 17 (1992), which requires states to take action at the national level as well as the regional and sub regional levels and take into account the Montreal Guidelines. Agenda 21 required the UNEP Governing Council to convene an intergovernmental meeting on the protection of the marine environment from land based activities. (Para. 17.26). At this meeting, which was held in Washington DC in 1995, two further non-binding instruments were adopted: (1) the Washington

Declaration on the Protection of the Marine Environment from Land-Based Activities and (2) the Global Programme of Action for the Protection of the Marine Environment from Land Based Activities. In 2001 a new Montreal Declaration on the Protection of the Marine Environment from Land Based Activities was approved.14 This document, which builds on the foregoing non-binding instruments, is reprinted in the Documentary Supplement.


It is evident that there are distinct limits to the global legal framework governing land based marine pollution. Not only is there no global treaty, there is a paucity of hard law, and soft law instruments lack specificity. The global legal framework is not adequate to deal with the geographical and ecological differences in the oceans of the world. The global framework also cannot deal with the great diversity of states in the world.
Most experts therefore advocate regional agreements to address problems of land based marine pollution.15 The extensive Regional Seas Programme spearheaded by UNEP consists of thirteen regional treaties covering many areas of the world.16 Protocols on land based pollution are in effect in the following ocean regions under the UNEP Regional Seas Programme: the Baltic Sea, the Black Sea, the Mediterranean Sea, the North-East Atlantic, the Kuwait region, the Southeast Pacific, and the Wider Caribbean Sea.
The OSPAR Convention deals with land based pollution in Annex I, which is very short:


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