International Conventions Relating to Land-Based Sources of Marine Pollution Control: Applications and Shortcomings

Georgetown International Environmental Law Review, Summer 2004 by Hassan, Daud

I. INTRODUCTION

The world's oceans are being polluted and contaminated from land-based sources (LBS), vessel-based sources, waste dumping at sea, and offshore oil and mineral exploitation activities. However, several studies on the sources of pollutants show that LBS are the major contributory factor to marine pollution.1 Usually, land-based sources of marine pollution (LBSMP) have a national source.2 That is, LBSMP originate from an area under the sovereignty of an individual State.3 Pollutants differ in their concentration and effects from coastal waters to oceanic waters. In general, coastal waters include the waters of the coastal zone and those in the territorial sea, both which are subject to the exclusive jurisdiction of a nation. The coastal zone can be denned as:

|t|he land and waters extending inland for one kilometre from the high water mark on the foreshore and extending seaward to the 30 metre depth contour line and also including the waters, beds, and banks of all rivers, estuaries, inlets, creeks, bays, or lakes subject to the ebb and flow of the tide.4

High seas waters are "all parts of the sea that are not included in the territorial sea or in the internal waters of States."5 These oceanic waters are referred to as "open sea beyond and adjacent to the territorial sea, which is subject to the exclusive jurisdiction of no one nation."6

In general, however, coastal waters are the most polluted, while the open sea is relatively clean.7 By the continuous moving of waters, pollutants are often carried far from their point of entry into the ocean waters with widespread effects.8 Generally, it is difficult to follow the pathways of the pollutants from the sea back to their sources and thus to find the causes of LBSMP. However, an exception can be made for immediately adjacent or opposite states. The danger posed to Ireland by increasing levels of radiation in the Irish Sea is an example.9 The radiation is caused by the operation of a reprocessing plant to make Mixed Oxide (MOX) fuel from plutonium and uranium oxides from the Sellafield site, located in the northeast of England and on the coast of Irish Sea. According to a report commissioned by the European Parliament's Director General for Research under the auspices of its Panel on Scientific and Technological Office Assessment (STOA), the reprocessing of spent nuclear fuel at Sellafield has led to the largest man-made release of radioactivity into the environment anywhere in the world.10

In addition to their trans-boundary nature, LBSMP are often scattered sources, such as persistent organic pollutants (POPs), including chlorinated plastics and pesticides, which have a cumulative impact on the marine and coastal environment." The "danger of these pollutants is cumulative because the chemicals are not easily excreted due to their poor solubility in water."12 The effects of these pollutants are long term.

Due to their persistence and ability to travel long distances, pollutants can be transported regionally and globally.13 Apart from the inshore and coastal waters, the incremental impact of these pollutants also creates damage in oceanic waters. This global impact indicates the international dimension of LBSMP control.

The world community has become increasingly aware that the oceans are interdependent, and consequently, impacts of LBSMP from one country affect others through the movement of ocean currents. Given the trans-boundary nature of LBSMP, it is important to share solutions among the international community, as the oceans are shared within it. The collective body of water requires an international control of LBSMP.

The objective of this paper is to describe and evaluate the effectiveness of the international conventions relevant to LBSMP control.14 In this respect, provisions of the Geneva Conventions on the Law of the Sea,15 the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (the London Convention),16 and the United Nations Convention on the Law of the Sea (LOSC)17 are examined here.

This paper correlates the international conventions with international management principles (benchmarks).18 These benchmarks advocate strategies and programs for the sustainable management of natural resources. For example, if marine and coastal environments are to be managed in an integrated and sustainable manner, principles such as environmental impact assessment (EIA), precautionary polluter pay and cleaner production should be applied. In this way, few, or at least fewer, harmful substances would be introduced into the coastal waters. Because of their usefulness, sustainable development principles have been accepted by the international community and incorporated in different international instruments.

In this context, this paper reviews the international conventions relating to LBSMP control and evaluates the extent to which the benchmarks have been reflected, and applied, in practice. In other words, it shows the congruencies and discrepancies between the benchmarks and the international legal framework in controlling LBSMP by analyzing the contents of treaty law.