1 I would like to thank Prof Yvonne Baatz and Mr Richard Shaw for comments on the paper and Miss Adebowale Awofeso for assisting with the editing of the article.
2 But arguably not under customary international law as it existed before the development of UNCLOS 1982.
3 UNCLOS 1982 Art 192. This is a general statement that arguably binds not only the contracting states of UNCLOS 1982 but all states and one which is firmly accepted under customary international law. The term marine environment is not well defined. UNCLOS 1982 defines ‘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, impairment of quality for use of sea water and reduction of amenities;
UNCLOS 1982 Art 1(1)(4). This is indeed a very wide definition which encompasses noise pollution (which affects mammals) and probably acidification of the oceans by human activities including burning of fossil fuels. But it does not tell us whether the marine environment and its protection refer, in addition to the ocean, to the interlinked and interconnected atmosphere and coastal zone. Probably it does not unless the atmospheric or land based pollution leads to the introduction of a pollutant substance or energy into the ocean causing deleterious effects. Thus, eg, CO2 emissions which cause ocean acidification are probably covered by the definition. However increased CO2 emissions which cause increases in atmospheric temperature that then lead to oceanic temperature increases are not clearly covered by the definition. It depends on whether the indirect introduction of substances or energy is to be read as encompassing all indirect consequences or is to be restricted to diffusion of the released pollutants or energy to the marine environment. Thus, although it can be argued that the release of GHG by man in the atmosphere which leads to the introduction of energy into the oceans which may have, for specific species and regions deleterious effects, is marine pollution, the better view is that it is probably not covered by the UNCLOS 1982 definition.
4 The International Court of Justice in the Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, pp 241–42, para 29 stated:
the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.
Furthermore in the Gabcikovo-Nagymaros Project, the ICJ Court had ‘… no difficulty in acknowledging that the concerns expressed by Hungary for its natural environment in the region … related to an “essential interest” of that State…’ see p41 of the judgement. Thus it is arguable that there is a duty on states under customary international law not to harm the environment of other states or the environment at the high seas and that the concerns with respect to the marine environment expressed by state are legitimate and important. However, again, these decisions do not restrict the actions of states within their boundaries. With the marine environment the problem is that mixing of coastal waters with waters further from the coast dilutes the pollutants. To determine then that some activities of one state do not ‘respect’ the environment of other states would be very difficult. This leads to a continuing erosion of the baseline standards perpetuating the problem.
5 (Art 194(1)). This may sound fair but there is no firm way of ensuring the capabilities of each state. It can be argued that this is a continuing obligation and that each state (and all states collectively) as they develop financially will increasingly have to deal with marine environmental pollution ‘in accordance with its increase ability’. This necessarily points towards a revision of such arrangement imposed by all states.
6 The importance of differences in working rights and conditions for seafarers is another very important area with similar difficulties.
7 These can be demonstrated by the mortality rates of particular species in oil pollution incidents or through the establishment of alien species from ballast water. Both demonstrate extreme incidents of alteration of an ecosystem. The extent of oil pollution on the marine environment can be quantified on the basis of estimated loading. But to understand the impacts one has to look at the loading of specific chemical components, which include the polycyclic aromatic (multiple-ring) hydrocarbons, which must be taken into account as well as the sensitivity of the specific species present in a particular area to these chemical compounds (Oil in the Sea III: Inputs, Fates, and Effects Committee on Oil in the Sea: Inputs, Fates, and Effects, National Research Council, 2003). One can further argue that the impacts of an ecosystem will then depend on the sensitivity of specific components of the ecosystem to the compounds introduced, as well as to the general health (or tolerance) of the particular ecosystem, which would depend on the various pressures the ecosystem is under and which are not related to the particular pollution. However, contamination of waters by oil pollution has also been claimed to have long-term effects.
8 This leads to the consequence that if contamination is source-generated rather than uniformly distributed, the risk for the various species would be higher. Thus coastal areas are at higher risks than open sea areas. The same argument could lead to the suggestion that shipping lanes should be uniformly distributed around the world to minimise the impacts of ship-generated pollution. The financial cost of adopting such a suggestion as general practice, as well as the inability to enforce it, makes it fanciful. It can also be argued that the additional time the ships would have to spend at sea and the additional number of ships could in effect lead to increase of pollutants.
9 The Marine Strategy Directive, Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive) sets this in the following terms:
Since programmes of measures executed under marine strategies will be effective only if they are devised on the basis of a sound knowledge of the state of the marine environment in a particular area and are tailored as closely as possible to the needs of the waters concerned in the case of each Member State and from the general perspective of the marine region or subregion concerned, provision should be made for the preparation at national level of an appropriate framework, including marine research and monitoring operations, for informed policymaking. At Community level, support for associated research should be continuously enshrined in research and development policies.
This is certainly a step in the right direction for the management of the European Seas. However it has to be appreciated that we lack basic knowledge concerning the pollution concentrations for many species and ecosystems, thus even if the directive is implemented the assumption about the lack of basic knowledge would still hold. What the Directive can establish though are base lines of what the status of the marine environment will be when it will be implemented.
10 There is an important distinction between the development of scientific knowledge and the use of science in pollution litigation. The essential difference is that progress in science requires a theory which is developed, evaluated, disputed and improved continuously. It is the destiny of every scientific result that it will be doubted, improved, qualified, or rejected. Scientific development is based on observations conflicting with the dominant theory. From the legal point of view, the very existence of apparently conflicting scientific studies can be used to dispute the causation of damage arising from pollution. The latter technique has been used by the oil industry to dispute especially, the long-term effects of oil pollution on the marine environment. See also the way under the US system these legal objections are reduced or avoided in Oil in the Sea III: Inputs, Fates, and Effects, Committee on Oil in the Sea: Inputs, Fates, and Effects, National Research Council, 2003.
11 Oil pollution from vessels for the period 1990–99 contributed 29% of the volume globally introduced, of which 8% was due to accidents and 21% due to operational discharges. In terms of anthropogenic oil pollution it is the biggest contributor. Land-based runoff accounts for about 11%, while extraction and transportation of oil with pipelines together with offshore facility incidents count for 7%. Natural seepage is the first overall contributor (47%) (National Research Council. Oil in the Sea: input, fates and effects, National Academy of Sciences, Washington, DC, 2003). It has also to be noted that the period 1990–99 used as reference for this study is a decade when the oil spilled had already been reduced to less than 20% in relation to what was spilled during the period 1975–80. It is not known how much larger operational oil discharge from shipping during the same period was. However it is not unreasonable to assume that the operational discharges were also correspondingly higher. Thus assuming natural seepage has remained unchanged – not necessarily a correct assumption as depletion of oil fields may have in fact reduced it too – this gives an estimate for the oil contribution from shipping in the 1970s of about 45% of the total contribution. Note that the earlier study by the same organisation in 1973 had significantly different estimates. The contribution from shipping was 35%, natural seepage was considered as 9.8% and land contributions were 54%. Petroleum in the Marine Environment (Washington, DC: National Academy of Sciences, 1975).
12 Note that the shipping contribution to this type of pollution is not negligible. See, eg JJ Corbett, JJ Winebrake, EH Green, P Kasibhatla, V Eyring and A Lauer, Mortality from Ship Emissions: A Global Assessment, Environ, Sci Technol, 2007, 41 (24), pp 8512–18 who estimate that 60,000 cardiopulmonary and lung cancer deaths annually can be attributed to the air pollution caused from shipping. Note also that because ships emit pollutants in relatively cleaner areas their effects with respect to impacts on processes will be larger. See K Capaldo, Corbett JJ, P Kasibhatla, P Fischbeck and S.N Pandis, (1999) Effects of ship emissions on sulphur cycling and radiative climate forcing over the ocean, Nature, 400, 743–46 who estimate the indirect forcing effects caused by sulphates emitted from ships to be around 14% of the IPCC global anthropogenic sulphate estimate for 1990s.
13 The shipping industry contributes around 3% of these emissions. However, future reductions of emissions in other sectors will lead to the increase in significance of CO2 emissions from ships, even if the actual amount of CO2 emitted were to remain unchanged.
14 The spectacular character and the publicity that oil spills attract have the consequence that regulation and legislation with respect to such events are easier to develop due to public pressure. The cleanup cost for oil spills depends on the type of oil involved as well as the area where the oil spill occurs. The cost for cleanup of one tonne of cargo for The Prestige event was Euros 10.7 k (fuel oil) while the Exxon Valdez pollution incident was $70.5 k (crude oil) and the Erika was Euro 6.3 k (see MD Garza-Gil, A Prada-Blanco and MX Vazquez-Rodriguez,Estimating the short-term economic damages from the Prestige oil spill in the Galician fisheries and tourism, Ecological Economics 58 (2006) 842–49). Empirical analyses of oil spill costs based on data from the International Oil Pollution Compensation Fund suggest a relationship between the sum of the total socio-economic costs and clean-up costs in relation to clean-up costs of between 1.3 and 2.5 (see Kontovas et al (2010), An empirical analysis of IOPCF oil spill cost data, Mar.Pollut. Bull, 2010.05.2010). Note though that in that study very high values like the one for the Braer of a ration of 87.6 were eliminated as a wild point. Also the estimate of total socio-economic costs were necessarily, due to the source of data, based on the IOPCF definition of recoverable damage and did not include any assessment of ecosystem damage not payable under the IOPCF system. See also AKY Ng and S Song, ‘The environmental impacts of pollutants generated by routine shipping operations on ports’ (2010) 53Ocean & Coastal Management 301–311, who find the cost of environmental impact costs at Rotterdam port from MARPOL pollutants is between $1.5– 2 million per year, by assuming a cost of $100 per ton of seabird and $300 per ton of fish damaged. Thus the environmental effect of the port of Rotterdam is estimated to be about 1/80th of the clean up costs of The Erika. Note that these are of course only part of the impact; atmospheric pollution with effects on human health and the global environment, as well as slow degradation of the marine and coastal ecosystems are not accounted for. The port statistic of the American Association of Port Authorities – aapa.files.cms-plus.com/PDFs/WORLD%20PORT%20RANKINGS%202009.pdf gives sizes of ports in relation to tonnage. Using them as guidance, the tonnage of Rotterdam is about 3% of the total tonnage of the top 125 ports. Assuming the tonnage is a good indicator of the emitted pollutants (this would imply the same level of enforcement of MARPOL at all these ports, a fact which is not true as only some of the MARPOL Annexes are compulsory), the effect of these top 125 ports is 33 times that of the port of Rotterdam. Thus this rough calculation suggests that the top 125 ports cause environmental damage equal to the Erika clean up costs every two years of their operation. Note that operational discharges are not restricted to ports. The above is a rough calculation and does not purport to be accurate. It is only used to compare order of magnitudes.
15 Fig 1.1 of the Review of Maritime Transport, 2011, UNCTAD, demonstrates that world gross domestic product and world seaborne trade have both been increasing over the past 30 years. XX Li and J Wonham, ‘Who is safe and who is at risk: a study of 20-year-record on accident total loss in different flags’ 1999 26(2) Maritime Pol MGMT 137–144 state an average rate of increase for the period 1977–96 of 1.12%, with significant interannual variations.
16 The Review of Maritime Transport, 2011, UNCTAD, reports that for the period 2006–10 more than half of the trade occurred in developing economies, which are also those with the fastest growing populations.
17 If there is a rapid development of alternative energy resources that can drive ships and reduce the dependency of economies to fossil fuel, this assumption may be proven wrong. Oil cargoes correspond in volume to 30–40% of the cargoes carried between 2006–10 (Review of Maritime Transport, 2011, UNCTAD, Table 1.3, note the discrepancy with Table 1.4 which gives an estimate of 21–23%). Minimising the carriage of oil would reduce international trade significantly and reduce oil pollution at the same time. However this presently appears unlikely to happen within the next 3–4 decades.
18 Within the Synthesis report on best practices and lessons learned on the objective and themes of the United Nations Conference on Sustainable Development UN A/CONF.216/PC/8, degradation of marine ecosystems is considered as one of the new and emerging challenges. It is highly arguable that this aspect of degradation is not new at all. However it is the realisation of the extent of the problems through international research synthesis reports, eg the Millennium Ecosystem Assessment, 2005, Ecosystems and Human Well-being: Synthesis, Island Press, Washington, DC, that justify the categorisation as new and emerging.
19 Avoiding the problem by pointing out the contribution of other sectors to the degradation of the marine environment is beside the point. If the marine environment becomes too polluted to use and the species and ecosystems face catastrophic extinction, it does not matter which source tipped the balance. The approach that avoids action because of sectoral or even national interests is short-sighted in the long term and catastrophic for all states if the first proposition in this work is correct. Indeed the short-term benefits may have been taken by the sector or the particular states. However it is this exact point that needs to be addressed by international law: how will the strategic needs for humanity not be undermined by the short-term benefits of some states?
20 The fragmentation of governance between fisheries, shipping, offshore activities, land-based pollution, climate change and biodiversity losses is evidence of the non-existence of a marine strategy.
21 One of the problems is the appropriate baseline for the natural systems. Each generation starts from a different baseline usually documented on anecdotal evidence and not scientifically well-established reference parameters. See D Pauly, ‘Anecdotes and the shifting baseline syndrome of fisheries’ (1995) 10 (10) TREE 430 and JK Pinnegar and GH Engelhard, ‘The ‘shifting baseline’ phenomenon: a global perspective’ (2008) 18 Rev Fish Biol Fisheries 1–16. One major point is that the top of the trophic chain, the largest fish in the coastal region, have been subject to intense harvesting even before industrial fishing has started. A second point is that the timing of such effect as well as the initiation of industrial fishing started at different periods at the various parts of the world. Such a recent effect is evident around the islands and is likely to be the result of the development of amateur spear gunning over the last 20–30 years, though it is very difficult to prove. Notably, while for fisheries there is some understanding and some accounting of past fisheries in relation to water quality and composition of coastal waters there is not much information.
22 Directive 2008/56/EC.
23 S 3 of the Preamble.
24 eg, we do not know whether and when the oceans or the ecosystems can be considered clean, healthy and productive.
26 And where appropriate restore it, Art 1(2)(a).
27 Art 1(2)(b). Scientific indicators will need to be defined and developed, and these have been developed on the basis of research funding provided by the EU. Thus the steps taken are the beginning of a long route towards minimising the impact of the EU on the marine environment. It is clear though, that the development of marine strategies, indicators and actions by each Member State will lead to differential standards or to differential implementation of the same standards. There is a risk that the whole exercise may end up being the development of a ‘seal’ of environmentally good statuses for the marine environment, without much impact on industrial and other activities.
28 The only area where a commitment for a new instrument is given is for Marine Biodiversity beyond the areas of national jurisdiction (see A/CONF.216/L.1 Section 162).
29 A/CONF.216/L.1 Section 163 of the head document titled: ‘The Future We Want’ includes the following:
We note with concern that the health of oceans and marine biodiversity are negatively affected by marine pollution, including marine debris, especially plastic, persistent organic pollutants, heavy metals and nitrogen-based compounds, from a number of marine and land-based sources, including shipping and land run-off. We commit to take action to reduce the incidence and impacts of such pollution on marine ecosystems, including through the effective implementation of relevant conventions adopted in the framework of the International Maritime Organization (IMO), and the follow-up of the relevant initiatives such as the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities, as well as the adoption of coordinated strategies to this end. We further commit to take action to, by 2025, based on collected scientific data, achieve significant reductions in marine debris to prevent harm to the coastal and marine environment.
30 eg, as will be discussed later, flag state control for ships, or the lack of it, has long been recognised as an inherent problem for the implementation of shipping legislation. It was not until the development of an alternative implementation mechanism based on port state control that implementation improved.
31 T O’Riordan, ‘Future directions in environmental policy’ (1985) 17 Journal of Environment and Planning 107–21.
32 MK Tolba, ‘The premises for building a sustainable society’, Address to the world Commission on Environment and Development, October 1984 (Nairobi: UNEP 1984).
33 Or, in a more cynical approach, to avoid the conflict between economic development and environmental degradation thus ensuring consensus behind a vague notion that can be interpreted in accordance with every state’s interests.
34 World Commission on Environment and Development, Our Common Future, (New York, Oxford University Press, 1987)
35 Development is ‘a process of directed change’ (see Lele (1991)). It has been taken to mean increase in GDP, social welfare, general performance of economic or social indicators. With the emergence of geo-engineering options I would suggest that the general performance of the managed environment may need to be included. Of course without knowing where we want to go, the type of development needed is bound to remain unclear and contradictory.
36 The term originates from the notion of renewable resources. Thus reaping the annual harvest and ensuring that you will have the ability to harvest at least the same next year is the requirement of a sustainable activity. However extrapolating this to the world economic production as a harvest that needs to be available or expanding every year is an erroneous interpretation of sustainability. There are two reasons for this. First sustainability must mean conservation of the environmental qualities, as otherwise the needs of future generations may not be able to meet their needs. Secondly the objectives set out of the WCED (1987) include: reviving growth and changing its quality; meeting essential needs for jobs, food, energy water and sanitation; ensure a sustainable level of population; reorienting technology and managing risk; merging environment and economics in decision making; reorienting international economics in decision making eradicating poverty. These objectives qualify sustainability only to those possible routes that can serve these objectives.
37 It is important that the environmental problems have originally been seen as local and have attracted efforts for local solutions, subject to national governments or at worst to regional collaborations. Thus the development of global problems needing coordinated and consistent acts by all states have radically changed the basis of international negotiations.
38 See SM Lele, ‘Sustainable Development: A critical Review’ (1991) 19 (6) World Development 607–21 for a thorough deconstruction of the terms.
39 Environmental degradation in poorer countries is considered to be a consequence of poverty. The poor undertake the unsustainable use of resources because of the lack of other options. Thus economic development in these countries is considered to be the way in which environmental degradation will be reduced. However it is not necessarily true that global economic growth is a prerequisite for sustainable development. First the benefits of economic growth are unevenly distributed between states and benefit less the poorer of countries. Secondly, creating wealth beyond the point of depletion of the environmental resources does not lead to a sustainable future (see HE Daly, ‘Toward some operational principles of sustainable development’ (1990) 2 Ecological Economics 1–6). Furthermore, the assertion that protectionism is a major impediment to sustainable development (WCED, 1987, p 83) is debatable. Trade encourages the development of comparative advantages and specialisation. Both lead to increased depletion of local resources, selective degradation of biodiversity by selecting particular crops over others (RB Norgaard, ‘Three dilemmas of environmental accounting’ 1989 1 (4) Ecological Economics 303–14). Finally, trade and in particular shipping includes significant environmental impacts which are normally excluded from economic analyses (D McRobert, (1988) 11 (1) Probe Post 24–29).
40 It should also be noted that the term wealth can be taken to mean solely economic wealth but can also be taken to mean social and economic wealth. What this would mean does depend to a large extent on the values of each society. Note that Morgan et al (2008) below, found in their analysis that despite the acceptance of sustainable development as a policy goal, increasing affluence has undermined ecological sustainability.
41 See DD Morgan, M Wackernagel, JA Kitzes, SH Goldfinger and A Boutaud, ‘Measuring sustainable development – Nation by Nation’ (2008) Ecological Economics 470–74, who provide such a measurement finding that out of 93 countries included in their study, only one met the two criteria on which they assessed sustainability. Their study is restricted to 2003.
42 See eg KJ Parikh (Ed) (1988) Sustainable development in agriculture (Dordrecht, Netherlands, Martinus Nijhoff) for a sectoral example, and see E Jordan, ‘The governance of sustainable development: taking stock and looking forwards’ (2008) 26 Government and Policy 17–33. For an example of a general activity (governance).
43 B Hopwood, M Mellor and G O’Brien, (2005) 13 Sustainable development 38–52. Figure 1 in this paper is very helpful in understanding the range of political and economic views within the sustainable development notions and also for separating views which cannot be considered as relevant to sustainable development, either because they do not view environmental concerns as coupled with the developmental aspects (neo-liberal economists) or because they value the environment as a separate entity and determine the path of economic development subject to ecological values (eco-facists).
44 Ecofeminists, ecosocialists, Indigenous movements are classified under this category.
45 By this we mean that the rate of introduction of pollutants in the marine environment is within the capability of the natural systems to remove them at local, regional and global scales and at all the relevant time scales.