Regulation of Land-Based Marine Pollution (Yoshifumi Tanaka)

Regulation of Land-Based Marine Pollution

Yoshifumi Tanaka

5.1 Introduction

Land-based pollution represents the most serious source of marine pollution.¹ In fact, it is estimated that land-based pollution, including air pollution, contributes approximately 80 per cent of marine pollution.² Pollutants resulting from land-based activities include sewage, industrial discharges, and agricultural run-off. Major contaminants include plastic litter, nutrients, heavy metals, sediments, oil, persistent organic pollutants, and radioactive wastes.³ Some of the contaminants produce eutrophication and oxygen depletion, resulting in loss of marine life and biological diversity. Other substances are directly toxic to humans. Harmful substances arising from land-based activities run into the oceans: (i) from the coast, including from outfalls discharging directly into the marine environment and through run-off, (ii) through rivers and canals of other watercourses, including underground watercourses, and (iii) via the atmosphere.⁴

The threat of land-based pollution to the marine environment is a serious one since it mainly affects coastal waters, which are sites of high biological productivity.⁵ Minamata Disease exemplified the seriousness of adverse impacts of land-based marine pollution upon human health. This disease, which was first discovered in 1956 around Minamata Bay in Kumamoto Prefecture, and in 1965, in the Agano River basin in Niigata Prefecture, Japan, was caused by the consumption of fish and shellfish contaminated by methylmercury compound discharged from a chemical plant. Methylmercury damages the human nervous system, and a considerable number of people have suffered from serious health problems.⁶ Further to this, the nuclear power plant accident in 2011 at Fukushima, Japan, demonstrated the serious risk of contamination of the offshore environment by radioactive substances released from the power plant on land. It would be no exaggeration to say that the welfare of coastal populations essentially relies on a sound marine environment. In light of the vital importance of a sound marine environment, it may be said that the protection of the marine environment involves a common interest of the international community as a whole, which transcends the interests of each State and involves the vital needs for the survival of mankind.⁷ In a broad context, the regulation of land-based marine pollution, which is discussed in this chapter, should be considered as part of the protection of community interests at sea.

Land-based marine pollution is a result of the imbalance between human populations and industrial activities and the limited capacity of the marine environment to absorb the wastes they produce. Considering that approximately 40 per cent of the world’s population live within 100 km of the coast,⁸ there is a concern that, with rapid population growth, marine pollution from land-based activities will become more problematic. In relation to this, it must be noted that land-based pollution is closely linked to the widespread poverty in developing countries. In this respect, the 1972 Stockholm Declaration already pointed out that: ‘In the developing countries most of the environmental problems are caused by under-development’.⁹ More specifically, the 1995 Washington Declaration on the Protection of the Marine Environment from Land-based Activities clearly recognized that the alleviation of poverty is an essential factor in addressing the impacts of land-based activities on coastal and marine areas.¹⁰ Likewise, the 2001 Montreal Declaration on the Protection of the Marine Environment from Land-Based Activities made it clear that poverty, particularly in coastal communities of developing countries, contributes to marine pollution through lack of basic sanitation. Marine degradation generates poverty by depleting the very basis for social and economic development.¹¹ This is a vicious circle. Hence the regulation of land-based pollution should be addressed in the global context of the struggle to combat poverty in developing countries.

The activities which may cause land-based pollution are closely bound up with crucial national programmes for the economic, industrial, and social development of States. The economic costs of measures to regulate land-based pollution are seen as unacceptably high, and inevitably affect economic development.¹² Accordingly, States are usually unwilling to take strong measures to regulate land-based activities. Nonetheless, as explained earlier, the regulation of land-based pollution is highly important in order to prevent the adverse impacts of harmful substances upon marine species and human health. A fundamental issue thus arises of how it is possible to strike a balance between the requirement of environmental protection and the need for the economic, social, and political development of each State. Against this background, this chapter will particularly address the following issues:

5.2 Global Legal Framework for Regulating Land-Based Marine Pollution

5.2.1Customary law: the principle of sic utere tuo ut alienum non laedas

The principle of sic utere tuo ut alienum non laedas—which means ‘use your own property so as not to injure that of another’—is the fundamental principle of international environmental law and also applies to the regulation of land-based marine pollution. The origins of this principle can be traced to the 1941 Trail Smelter arbitration, in which the tribunal held that:

[U]nder the principles of international law, as well as of the law of the United States, no 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 another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.¹³

This principle was later elaborated in Principle 21 of the Stockholm Declaration of 1972, and confirmed by the 1992 Rio Declaration adopted in the United Nations Conference on Environment and Development.¹⁴ Principle 2 of the Rio Declaration stated that:

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

It may be relevant to note that the formulation set out in Principle 2 requires States to protect the environment beyond the limits of national jurisdiction, whilst the older formulation stated in the Trail Smelter arbitration dealt only with transboundary harm to other States. It follows that the obligation not to cause environmental damage is no longer solely bilateral in nature, but relates to the protection of the common interests of the international community as a whole.¹⁵ Presently it is generally recognized that the principle of sic utere tuo ut alienum non laedas reflects customary international law.¹⁶ This point was clearly confirmed by the International Court of Justice (ICJ) in the Advisory Opinion concerning Legality of the Threat or Use of Nuclear Weapons,¹⁷ as well as in the Gabčíkovo-Nagymarous Project case of 1997.¹⁸ Nonetheless, it should not pass unnoticed that this principle contains some limitations with respect to its practical application. In particular, three difficulties must be noted.

A first difficulty involves the concept of ‘due diligence’.¹⁹ It is generally understood that this principle involves the obligation to use ‘due diligence’ to not cause transfrontier damage.²⁰ Thus a State is not responsible for damage if it has paid such ‘due diligence’. However, ‘due diligence’ is a very vague concept. Indeed, the degree of ‘due diligence’ may vary depending on the nature of specific activities, technical and economic capabilities of States, and the effectiveness of territorial control, etc.²¹ Furthermore, a reasonable standard of ‘due diligence’ may change with time and the development of science and technology.²² Hence the general formulation of ‘due diligence’ is not very helpful, since it offers little guidance with respect to the specific measures which should be taken by each State. The identification of a breach of ‘due diligence’ encounters considerable difficulty in the context of the regulation of land-based marine pollution because it involves various substances, sources and actors. This is particularly true in the situation where marine contaminations may be produced by activities in more than one State in the same region. In this case, shared responsibility of multiple States may arise. Yet, the determination of the breach of the obligation of due diligence by multiple States will be difficult in reality. Hence an injured State may encounter considerable difficulties in invoking responsibility of multiple States on the basis of the breach of the principle of sic utere tuo ut alienum non laedas.²³

Second, the principle of sic utere tuo ut alienum non laedas does not mean an absolute prohibition of environmental damage.²⁴ It is suggested that the harm must be significant or substantial in order to have recourse to this rule. However, it is less easy to define the concept of the ‘significant or substantial harm’ in a precise manner.²⁵

Third, and more fundamentally, the principle of sic utere tuo ut alienum non laedas essentially functions after damage has been caused in the other State’s territory in terms of establishing State responsibility. In other words, this principle relates to the law of State responsibility concerning already caused damage, and it does not directly oblige States to protect the marine environment or to regulate specific sources of marine pollution.²⁶ Considering that environmental damage is often irreversible, however, much weight should be given to the prevention of such damage. In fact, the ICJ, in the Gabčíkovo-Nagymarous Project case, held that: ‘in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage’.²⁷ In its Commentary to the Draft Convention on the Prevention of Transboundary Harm from Hazardous Activities, the International Law Commission (ILC) also stated that: ‘Prevention should be a preferred policy because compensation in case of harm often cannot restore the situation prevailing prior to the event or accident’.²⁸ In conclusion, it may have to be admitted that the customary principle of sic utere tuo ut alienum non laedas alone is inadequate to protect the marine environment from land-based marine pollution.²⁹ Thus more specific rules regulating land-based marine pollution must be formulated at treaty level.

5.2.2 The UN Convention on the Law of the Sea

To date, the UN Convention on the Law of the Sea³⁰ (UNCLOS) is the only treaty which provides general obligations to prevent land-based pollution at the global level. This Convention established the general and comprehensive framework for marine environmental protection.³¹ In this regard, Article 192 lays down a general obligation to protect the marine environment, by stating that: ‘States have the obligation to protect and preserve the marine environment’. Notably, this provision does not signify that the marine environment must be protected only if failure to do so may harm other States. Furthermore, Article 194(1) holds that:

States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonize their policies in this connection.

The phrase ‘any source’ suggests that this provision covers all sources of marine pollution, including land-based pollution. It may be said that the obligation to protect the marine environment under the UNCLOS is comprehensive.

Article 194(2) UNCLOS imposes a duty upon States to take all measures necessary to ensure that activities under their jurisdiction or control are conducted so as not to cause damage by pollution to other States and their environment; and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with the UNCLOS. Under Article 194(3)(a), measures taken pursuant to Part XII shall include, inter alia, those designed to minimize to the fullest possible extent ‘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’. States are also obliged to cooperate for the purpose of promoting studies, undertaking programmes of scientific research and encouraging the exchange of information and data acquired about pollution of the marine environment under Article 200.

More specifically, the UNCLOS provides prescriptive and enforcement jurisdiction with regard to the regulation of land-based pollution. Concerning prescriptive jurisdiction, Article 207(1) calls on States to adopt laws and regulations to prevent, reduce, and control pollution of the marine environment from land-based sources, ‘taking into account internationally agreed rules, standards and recommended practices and procedures’. In this regard, it is to be noted that unlike pollution from sea-bed activities subject to national jurisdiction and pollution from dumping and pollution from vessels,³² States are required only to ‘take into account’ internationally agreed rules, and so forth, when adopting relevant laws and regulations concerning pollution from land-based sources. It follows that States may adopt measures which are either more or less stringent than those embodied in international law. It can be argued, therefore, that under the UNCLOS, the balance between national and international laws on this matter is in favour of national laws. With regard to the enforcement jurisdiction, Article 213 UNCLOS requires States to enforce their laws and regulations adopted under Article 207 and take other measures necessary to implement applicable international rules and regulations. States are also under a duty to take other measures as may be necessary to prevent, reduce, and control such pollution under Article 207 (2). However, the UNCLOS contains no specific machinery for ensuring compliance with rules regulating land-based marine pollution. Overall, it can be concluded that the UNCLOS provides only a general framework for regulating land-based marine pollution.

5.2.3Non-binding instruments

After the adoption of the UNCLOS, overall attempts to regulate land-based marine pollution at the global level have been made in the form of non-binding instruments. Principal instruments on this subject comprise:

•the 1985 Montreal Guidelines for the Protection of the Marine Environment against Pollution from Land-based Sources;³³

•Agenda 21 of 1992;³⁴

•the 1995 Washington Declaration on the Protection of the Marine Environment from Land-based Activities;

•the 1995 Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (1995 Global Programme of Action);³⁵

•the 2001 Montreal Declaration on the Protection of the Marine Environment from Land-Based Activities;³⁶ and

•the 2012 Manila Declaration on Furthering the Implementation of the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities.

Among these instruments, the 1985 Montreal Guidelines merit particular attention. The Guidelines enumerate in detail various measures to be taken in order to ‘prevent, reduce and control’ pollution from land-based sources. Such measures include: environmental impact assessment, monitoring, notification, information exchange and consultation, scientific and technical cooperation, assistance to developing countries, development of control strategies, and so forth. It is of particular interest to note that the 1985 Montreal Guidelines highlight the interlinkage between the protection of the marine environment and that of international watercourses. In UNCLOS, little attention is paid to this subject. In this regard, the Guidelines require that ‘[i]f discharges from a watercourse which flows through the territories of two or more States or forms a boundary between them are likely to cause pollution of the marine environment, the States concerned should co-operate in taking necessary measures to prevent, reduce and control such pollution’.³⁷ Considering that rivers are a major contributor to marine pollution, the coordination between a marine pollution regime and the environmental regulation of international watercourses becomes particularly important for preventing land-based marine pollution.³⁸

Furthermore, the 1985 Montreal Guidelines introduced the concept of specially protected areas, with a view to protecting fragile ecosystems from land-based pollution. Annex I to the Guidelines states that the strategy on specially protected areas involves the identification of unique or pristine areas, rare or fragile ecosystems, critical habitats and the habitat of depleted, threatened, or endangered species and other forms of marine life. Those areas to be protected or preserved from pollution, including from land-based sources, and are selected on the basis of a comprehensive evaluation of factors, including conservational, ecological, recreational, aesthetic and scientific values. To this end, States are required to notify an appropriate international organization of the establishment of any modification to such areas, with a view to the inclusion of such information in an inventory of specially protected areas.³⁹

The need for the prevention of degradation of the marine environment from land-based activities was later stressed by Agenda 21 of 1992.⁴⁰ In relation to this, it is of particular interest to note that chapter 17 of Agenda 21 highlighted the importance of the precautionary approach as well as a comprehensive approach to the protection of the marine environment:

A precautionary and anticipatory rather than a reactive approach is necessary to prevent the degradation of the marine environment. This requires, inter alia, the adoption of precautionary measures, environmental impact assessments, clean production techniques, recycling, waste audits and minimisation, construction and/or improvement of sewage treatment facilities, quality management criteria for the proper handling of hazardous substances, and a comprehensive approach to damaging impacts from air, land and water.⁴¹

Agenda 21 further required that the United Nations Environmental Programme (UNEP) Governing Council should be invited to convene, as soon as practicable, an intergovernmental meeting on the protection of the marine environment from land-based activities.⁴²

The global conference envisaged in Agenda 21 was held in Washington, DC, from 23 October to 3 November 1995, and the 1995 Washington Declaration and the 1995 Global Programme of Action were adopted. Significantly enough, the Global Programme of Action explicitly ensures the application of the precautionary approach to this issue.⁴³ This instrument also provides measures to be taken with a view to addressing pollution from sources.⁴⁴ Further to this, the 2001 Montreal Declaration calls for appropriate action to be taken at the national and regional levels to strengthen institutional cooperation between, inter alia, river-basin authorities, port authorities, and coastal zone managers, and to incorporate coastal management considerations into relevant legislation and regulations pertaining to watersheds management: in particular, transboundary watersheds.⁴⁵ Moreover, in the 2012 Manila Declaration, representatives of sixty-five governments and the European Commission stressed the commitment to the implementation of the Global Programme of Action on the Protection of the Marine Environment from Land-based Activities at the international, regional, and national levels as a flexible and effective tool for the sustainable development of oceans, coasts, and islands, and for human health and well-being.⁴⁶

5.2.4Limits of the global legal framework

Overall it can be observed that attempts to address land-based marine pollution at the global level have been made only in the form of less formal instruments. In this sense, it may have to be accepted that regulation at the global level remains weak. Given that States are often reluctant to approve any attempts to restrict their economic developments by legally binding instruments, the current legal situation is hardly surprising. Further to this, there exist at least three factors which make it difficult to formulate uniform and detailed rules regulating land-based pollution at the global level.

A first element involves the complexity of sources and substances of land-based pollution. In the case of vessel-source pollution, for instance, sources and substances to be regulated—which are mainly oil and oily mixtures—can be clearly identified. However, the regulation of land-based pollution involves more substances than oil and oily mixtures. Furthermore, in the case of vessel-source pollution, ships are the only actors, and the shipping industry is the major economic sector to be regulated. By contrast, many actors and activities, such as pollution-generating industrial, agricultural, and municipal activities, are involved in pollution from land-based activities. It follows that the regulation of land-based pollution concerns various economic sectors in the State. Thus, arguably the regulation of land-based marine pollution at the global level is more problematic than in the case of vessel-source pollution because it is more difficult to balance the regulation of such pollution with various national economic policies in the former case than the latter.⁴⁷

A second element pertains to geographical and ecological divergences in the oceans. The movement of ocean currents and winds are complex and different and, as a consequence, the degree of marine pollution varies in each coastal region. Usually the affects of land-based pollution are more serious in shallow enclosed or semi-enclosed coastal sea areas than open oceanic areas.⁴⁸ Accordingly, more stringent regulation of land-based pollution in such areas than in other marine areas will be needed.

Third, the economic and technological gaps between developed and developing countries should be noted. In reality, developing States do not have adequate technical and financial facilities to prevent marine pollution. In light of such countries’ economic and technological difficulties, it is hard to place the same obligations upon them to regulate land-based pollution at the global level as are placed on developed States. In this regard, it appears that the principle of common but different responsibility merits particular attention.⁴⁹ Under this principle, developing countries have different and more diminished obligations. This principle is clearly reflected in Principle 7 of the Rio Declaration. Furthermore, in the context of marine environmental protection, Article 207(4) of the UNCLOS requires States to take into account ‘characteristic regional features, the economic capacity of developing States and their need for economic development’. In any case, due to the economic, technological and geographical divergences in the international community, there is a need to tailor specific rules preventing marine pollution from land-based activities, by taking account of the particular needs and circumstances of relevant States at the regional level. In fact, marine pollution from land-based sources has primarily been regulated by regional treaties. Thus, the next Part will address how regional agreements regulate land-based marine pollution.

5.3 Development of Regional Treaties Regulating Land-Based Marine Pollution

5.3.1General considerations

At the regional level, there are comparatively many treaties concerning marine environmental protection. In this regard, it is noteworthy that specific protocols on the regulation of land-based marine pollution have been increasingly concluded. In particular, the following instruments are of particular importance (see Table 5.1). The development of regional treaties calls for two observations.

First, the development of these treaties is not uniform. In fact, there is no specific protocol regulating land-based marine pollution in the East Asian Seas, South Pacific, the North-East Pacific, the North-West Pacific, the South Asian Seas, the South-West Atlantic, and the Arctic. As will be seen, the normative strength of regulation also varies depending on conventions.

Second, it is notable that some of the above conventions cover internal waters.The regulation of land-based marine pollution in internal waters is particularly important since the sound environment of coastal areas is fundamental for human health and biological diversity. It is also relevant to note that all documents listed above regard pollution through the atmosphere as land-based marine pollution. While no detailed examination of each and every regional treaty can be undertaken here, the following approaches and procedures in particular deserve further consideration, namely, the uniform approach, the precautionary approach, environmental impact assessment and monitoring.

5.3.2Identification of harmful substances

5.3.2.1 The black/grey lists approach and its limitations

A significant development in the field of the regulation of land-based marine pollution involves the change of approach in the identification of harmful substances, from the black/grey lists approach to the uniform approach. Harmful substances are traditionally divided into two categories. With respect to the substances listed in a black list, in principle, States Parties are obliged to eliminate pollution by such substances. Concerning materials enumerated in the grey list, the obligation of States is relaxed, and States are merely required to limit pollution by these materials. This approach may be called the black/grey lists approach. It was adopted by Article 4 of the 1974 Convention for the Prevention of Marine Pollution from Land-Based Sources (the 1974 Paris Convention), Articles 5 and 6 of the 1974 Convention on the Protection of the Marine Environment of the Baltic Sea Area (the 1974 Helsinki Convention), Articles 5 and 6 of the 1980 Athens Protocol, Articles IV and V of the 1983 Quito Protocol, and Article 4 of the 1992 Bucharest Protocol. Nonetheless, the black/grey lists approach is open to criticisms. In particular, two points merit highlighting.

First, an essential problem with the black/grey list approach is that it is contrary to the fundamental goal of preventing all marine pollution since, according to this approach, States are merely under a relaxed obligation with respect to ‘grey list’ substances. Furthermore, it should not pass unnoticed that, in some cases, the discharge of harmful substances which are enumerated in the black list is not completely prohibited. For example, the Parties to the 1980 Athens Protocol are under an obligation to undertake to ‘eliminate’ pollution of the Protocol Area from land-based sources by substances listed in Annex I, while they are required to ‘strictly limit’ pollution from substances or sources listed in Annex II.⁶¹ In accordance with Annex I, section B of this Protocol, ‘[t]he present annex does not apply to discharges which contain substances listed in section A that are below the limits defined jointly by the Parties’. Furthermore, curiously Annex III of the Athens Protocol lists factors which will be considered ‘[w]ith a view to the issue of an authorisation for the discharge of wastes containing substances referred to in annex II or in section B of annex I of this Protocol’. In so doing, even substances listed in Annex I may be subject to authorization for discharge, should such substances be below the limits defined jointly by the Parties. If this is the case, the effect of the distinction between Annex I (the black list) and Annex II (the grey list) becomes obscure.

Second, regulatory measures applicable to the same substances may vary depending on agreements. For instance, mercury and cadmium were listed in Annex II (the grey list) in the 1974 Helsinki Convention, whilst these materials were categorized in the black list in the 1974 Paris Convention, the 1980 Athens Protocol, the 1983 Quito Protocol, as well as the 1992 Bucharest Protocol. While radioactive substances were in Annex I (the black list) in the 1980 Athens Protocol as well as the 1983 Quito Protocol, such substances were listed in Annex II (the grey list) in the 1974 Helsinki Convention.

5.3.2.2 The emergence of the uniform approach

In response to these problems, some recent conventions tend to replace the black/grey list approach by the uniform approach, which seeks to regulate harmful substances of land-based pollution without any differentiation of obligations in accordance with the category of harmful substances. Examples include: the 1992 OSPAR Convention, the 1992 Helsinki Convention, the 1996 Syracuse Protocol, the 1999 Aruba Protocol, and the 2005 Jeddah Protocol. Among those treaties, the Helsinki and OSPAR Conventions merit particular attention.

The 1992 Helsinki Convention, which replaced the 1974 Helsinki Convention, seeks to regulate pollution from land-based sources without distinguishing black and grey lists. In this respect, Article 2(2) defines land-based pollution as:

pollution of the sea by point or diffuse inputs from all sources on land reaching the sea waterborne, airborne or directly from the coast. It includes pollution from any deliberate disposal under the seabed with access from land by tunnel, pipeline or other means.⁶²

Article 6 then imposes upon the Contracting Parties to ‘undertake 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 sources’.⁶³ In relation to this, the Helsinki Convention specifies factors which should be considered in the implementation of Best Available Technology (BAT) and Best Environmental Practice (BEP).⁶⁴ Notably, the Convention makes it clear that ‘the precautionary principle’ should be considered in determining the contents of BAT and BEP. It can be argued that, to some extent, the use of BAT and BEP can contribute to specify regulatory measures which should be taken by each State and the standard of ‘due diligence’ in this field.⁶⁵