Global environmental protection instruments and the polar marine environment

3 Global environmental protection
instruments and the polar marine
environment
 . 
The marine environment is subject to many legal regimes, some apply-
ing only within defined regions. In the cases of the Arctic and the Antarctic,
significant regional initiatives include the regimes created by the 1959 Antarctic
Treaty and its 1991 Environmental Protocol, as well as those adopted under the
1991 Arctic Environmental Protection Strategy and the 1996 Arctic C
ouncil.
1
Beyond such regional regimes, there exists a sizeable body of international law
which applies globally: legal regimes which set out to impose obligations upon all
states, in principle covering all parts of the earth.
Developments in international environmental law during the past three
decades have seen the emergence of several core principles which provide a frame-
work of customary environmental law. These principles include: the obligation of
all states to conserve the environment and its natural resources; the obligation
upon states to assess potential, and monitor actual environmental impact; the
obligation upon states to conserve the environment both within and beyond areas
of national jurisdiction; and sustainable development.
2
This list is not exhaustive; it maywell be possible to identifyother prin-
ciples which are in a state of development, or which have particular application
for specific environmental problems. These principles of international environ-
mental law, emerging from state practice as well as incorporated in international
environmental instruments, provide the underlying framework for marine
environmental protection globally, thus including the polar regions. As to the
polar regions in particular, given the sensitivityof their marine environments and
the unknown consequences that mayresult from environmental degradation, the
standard of due diligence is of special importance – not least in the Arctic, in view

of the development activitywhich has occurred there thus far and which maybe
57
1
On regional environmental protection regimes in the Arctic and the Antarctic, see the discussion
byVidas, Chapter 4 in this book.
2
A. Kiss and D. Shelton, International Environmental Law (Ardsley-on-Hudson, NY and London:
Transnational Publishers and Graham & Trotman, 1991), pp. 145–54.
expected to expand even further, along with the potential for transboundary
marine pollution.
3
Considerable impact in regulating the environmental protection of the
polar regions is also exerted by various specific marine environmental agreements
and conventions, perhaps the most prominent being the 1973 International
Convention for the Prevention of Pollution from Ships and its 1978 Protocol
4
(MARPOL 73/78) and the 1982 UN Convention on the Law of the S
ea
5
(LOS
Convention). In addition, a vast array of other international environmental instru-
ments also assist in protecting various aspects of the polar marine environment.
6
The purpose of this chapter is to review and assess the relevance of global
agreements for the polar marine environment, so as to develop a greater under-
standing of the application of ‘global international environmental instruments’ in
the polar regions. In the process it will be possible to appreciate the growing extent
of global environmental responsibility that exists for the polar marine environ-
ment, and how developments in international environmental law impose upon the
polar states obligations of sustainable development and ecosystem management.

      
Like other oceans of the world, the Arctic and Southern Oceans are
subject to the existing inter
national legal regime dealing with marine pollution.
The legal regime which has come into being has primarily done so without the
benefit of the provisions of the LOS Convention being in place, as most of the rele-
vant conventions were negotiated during the late 1960s and the 1970s in response
to growing international concerns over marine environmental pollution, espe-
cially following several major maritime incidents. These conventions have primar-
ily dealt with discrete types of pollutants or polluting activities, which has meant a
focus on ship-sourced marine pollution, primarily from oil and other related sub-
stances. MARPOL 73/78 is the principal global convention dealing with these
matters. In relation to the dumping of substances at sea, the 1972 Convention on
the Prevention of Marine Pollution by Dumping of Wastes and Other Matter
7
(London Convention) is the principal global convention.
58 Donald R. Rothwell
3
For a review of transboundarymarine pollution issues in the Arctic, see the reports of the Working
Group on Protection of the Arctic Marine Environment founded under the Arctic Environmental
Protection Strategy(www.nrc.ca/arctic/pame) and in particular a report of 2 May1997 entitled
‘Protection of the Arctic Marine Environment: Status Report to Senior Arctic Officials’
(www.girda.no/prog/polar/pame).
4
ILM, Vol. 12, 1973, pp. 1,319ff (Convention); and ILM, Vol. 17, 1978, pp. 546ff (Protocol).
5
For a detailed analysis of the LOS Convention as it relates to the polar marine environment see
Vukas, Chapter 2 in this book.
6
During preparation of the Arctic Environmental Protection Strategy, altogether twenty-six ‘global

conventions’ were identified as potentially having an impact upon the protection of the Arctic
environment, many of which also provided protection for the marine environment; see List of
Major International Instruments and Policy Declarations Pertaining to the Arctic Environment, final
version, as presented at the Officials and Ministerial Meeting, 10–14 June 1991 at Rovaniemi,
Finland, pp. 2–31.
7
UNTS, Vol. 1,046, pp. 120ff.
Even though it is considered to constitute approximately 70 per cent of
marine pollution,
8
land-based pollution has been the least regulated form of
marine pollution at the global level. There is no specific convention dealing with
this problem, though the international community has begun to pay greater atten-
tion to this problem following the 1995 Washington Declaration and the Global
Programme of Action for the Protection of the Marine Environment from Land-
Based Activities.
9
Global-level international regimes have also been developed to deal with
maritime emergencies that can have polluting consequences, as well as liability
resulting from marine pollution and other maritime incidents resulting in impact
upon the marine environment.
10
The result is a global body of law dealing with marine pollution and pro-
tection of the marine environment which is relatively sophisticated and certainly
more advanced than any other area of international environmental law. These
developments will now be reviewed from a sectoral perspective.
   - 
International regulation of ship-sourced marine pollution has been the
subject of global attention since the 1950s following the adoption of the 1954
International Convention for the Prevention of Pollution of the Sea by Oil

11
(OILPOL). However, the Convention suffered from difficulties in implementation
and enforcement and eventually became outdated following the development of
the so-called ‘supertankers’ and the consequent challenges these vessels posed for
international regulators seeking to limit pollution by ships at sea. MARPOL 73/78
was eventually adopted as a replacement for OILPOL, but did not enter into force
until 1983 following the adoption of an amending Protocol in 1978.
As MARPOL 73/78 has now been in place for a relatively longer period, it
is possible to judge its impact at both the global level and also in the polar oceans.
The Convention is designed to prevent pollution of the marine environment by
prohibiting and limiting the discharge of harmful substances or effluents from
ships. It has global application and contains general provisions for all oceans, but
it also contains enhanced protection for nominated ‘special areas’ which can
include oceans or parts of oceans. One way to measure the success of MARPOL
73/78 is to examine the extent to which ship-generated pollution has fallen: from
Global environmental protection instruments 59
18
Agenda 21, Chapter 17, para. 18.
19
Reproduced in Environmental Policy and Law, Vol. 26, 1996, pp. 37ff. For an analysis see
VanderZwaag, Chapter 8 in this book. On globalism and regionalism, as regards land-based
sources of pollution, see Boyle, Chapter 1 in this book.
10
See the 1969 International Convention on Civil Liability for Oil Pollution Damage (UNTS, Vol. 973,
pp. 3ff); the 1971 International Convention on the Establishment of an International Fund for
Compensation for Oil Pollution Damage (ILM, Vol. 11, 1972, pp. 284ff); and the 1996 International
Convention on Liability and Compensation for Damage in Connection with the Carriage of
Hazardous and Noxious Substances by Sea (ILM, Vol. 35, 1996, pp. 1,406ff); these conventions are
not addressed in this chapter.
11

UNTS, Vol. 327, pp. 3ff.
being estimated at approximately 35 per cent of global marine pollution sources in
the early 1970s to approximately 10 per cent by the early 1990s
12
– and indeed, to
examine the causal relationship between MARPOL 73/78 and this trend.
MARPOL 73/78 is a framework convention containing specific provisions
that regulate certain types of pollution in attached annexes. The main body of the
Convention deals with extent of application (Article 3), violation and enforcement
(Articles 4–6) and other procedural issues. The six annexes that are attached to the
Convention concern:
1. the prevention of pollution by oil (Annex I);
2. the control of pollution by noxious liquid substances in bulk (Annex II);
3. the prevention of pollution by harmful substances in packaged forms
(Annex III);
4. the prevention of pollution by sewage from ships (Annex IV);
5. the prevention of pollution by garbage from ships (Annex V); and
6. the prevention of air pollution from ships (Annex VI).
13
‘Discharge’ is widely defined to include any release, including ‘any escape, dis-
posal, spilling, leaking, pumping, emitting or emptying’ (Article 2(3)(a)). Excep-
tions exist in the case of dumping under the 1972 London Convention, or the
release of harmful substances arising from seabed mineral resource activities or
scientific research (Article 2(3)(b)). MARPOL 73/78 applies to all ships flying the
flag of contracting parties, or operating under the authority of a party (Article 3(1))
and operates through a combination of flag state enforcement and port state
control, with parties encouraged to cooperate in the detection of violations and in
enforcement (Article 6).
The prevention of pollution by oil
The most detailed operational provisions of MARPOL 73/78 are found in

Annex I concerning the prevention of pollution by oil. This Annex prohibits the dis-
charge into the sea of oil unless certain conditions are met (Annex I, Regulation 9).
Within designated ‘special areas’, discharges are absolutely prohibited,
14
with the
exception of ships of less then 400 gross tonnage (other than oil tankers) which may
discharge under strict conditions (Annex I, Regulation 10). Exceptions also apply
in cases where a discharge is necessary to secure the safety of the ship and save life
at sea, or where the discharge has resulted from damage to the ship (Annex I,
60 Donald R. Rothwell
12
See the figures quoted in R. M. M’Gonigle and M. W. Zacher, Pollution, Politics and International
Law (Berkeley, CA: University of California Press, 1979), p. 17; and in Agenda 21: Programme of
Action for Sustainable Development (New York: United Nations, 1993), Chapter 17, para. 18.
13
Annex VI was adopted in 1997 and has yet to enter into force; as of 8 June 1999 there had only been
two ratifications (by Norway and Sweden).
14
The ‘Special Areas’ that were originally designated under MARPOL cover the areas of the
Mediterranean Sea, the Baltic Sea, the Black Sea, the Red Sea and the ‘Gulfs Area’; see Annex I,
Regulation 10.
Regulation 11). In an effort to ensure that ships have access to adequate oil recep-
tion facilities, Annex I details requirements for the provision of such facilities at
various ports and for a variety of vessel types (Annex I, Regulation 12). Provisions
also exist dealing with the use, cleaning and maintenance of ballast tanks, and the
use of certain oil discharge monitoring equipment in addition to the need to com-
plete an oil record book (Annex I, Regulations 13–20).
The Antarctic Treaty area was included as a ‘Special Area’ under Annex I
by the amendments of 1990 (in force 1992), with the result that any discharge of oil
is prohibited. This extension of the MARPOL 73/78 Special Area concept to the

Antarctic is a welcome development that provides additional protection for the
Southern Ocean, given the vast degree of international acceptance of MARPOL
73/78.
15
The same cannot be said for the Arctic, however. It has yet to be recognised
as a Special Area, and at present there is insufficient support amongst Arctic states
for such status being conferred.
16
A major problem with Annex I in the Arctic
context is the lack of adequate and reasonably priced port reception facilities.
17
This is, however, an issue not only in the Arctic, where there are some significant
ports, but also globally. With the vast distances involved in shipping between Arctic
ports and those to the south this is a matter which needs to be addressed if com-
mercial shipping in Arctic waters continues to increase.
Control of other forms of ship-sourced pollution
Annex II of MARPOL 73/78, on pollution bynoxious liquid substances in
bulk, complements Annex I and provides additional protection to the polar marine
environment from the dischargeof such substances.The SouthernOcean waslisted
as a Special Area for the purposes of Annex II byamendments adopted in 1992. At
present, however, Annex II does not absolutelyprohibit the discharge of ballast
waters.This has recentlybecome a matter of great concern to some coastal states;
18
given the commercial shipping and port traffic in the Arctic and the developing
maritime traffic in the Southern Ocean, it willbe most unfortunate if foreignmarine
organisms are introduced into polar waters through the discharge of ballast waters.
Global environmental protection instruments 61
15
As at 8 June 1999, the 1978 MARPOL Protocol and Annexes I and II had 108 parties, which repre-
sented some 94 per cent of the world tonnage; for updated status see the International Maritime

Organisation website at www.imo.org.
16
At neither the 1996 nor the 1997 Meeting of Ministers of Arctic Countries under the 1991 Arctic
Environmental Protection Strategy was support forthcoming for having the Arctic declared a
MARPOL ‘Special Area’; see the 1996 Inuvik Declaration on Environmental Protection and
Sustainable Development, available at the Arctic Council website at ;
and the 1997 Alta Declaration on the Arctic Environmental Protection Strategy
, at
ibid. See the dis-
cussion in D.VanderZwaag, Canada and Marine Environmental Protection: Charting a Legal Course
Towards Sustainable Development (London: Kluwer Law International, 1995), p. 155; and D.
VanderZwaag, ‘International Law and Arctic Marine Conservation and Protection: A Slushy,
Shifting Seascape’, Georgetown International Environmental Law Review, Vol. 9, 1997, p. 322.
17
D. Brubaker, Marine Pollution and International Law (London: Belhaven Press, 1993), p. 128.
18
‘Report of the 37th Session of the Marine Environment Protection Committee’, Environmental
Policy and Law, Vol. 26, 1996, p. 18.
Annex III, dealing with pollution by harmful substances in packaged
forms and containers, has important provisions which apply to vessels engaged in
Antarctic resupply. However, sovereign immunity exceptions do limit its applica-
tion. The regulation of sewage is dealt with by Annex IV, but this Annex has yet to
gain sufficient support to enter into force.
19
It is particularly applicable for the polar
regions, as all vessels navigating through those waters carry sewage on board
which, if discharged, may have severe environmental consequences. Disposal of
garbage from vessels is dealt with in Annex V. Regulations apply to the disposal of
various types of garbage, including acceptable distances from land and the manner
in which it may be disposed of. Vessel-source garbage in the polar regions has been

the subject of some concern for environmental groups, especially with the increase
in voyages by tourist vessels.
Assessment
The enforcement of MARPOL 73/78 in polar waters faces several
difficulties. Especially significant is the fact that both the Arctic and Southern
Oceans contain vast stretches of high seas areas beyond the reach of coastal state
jurisdiction. As flag state jurisdiction prevails on the high seas, this results in incon-
sistent application of MARPOL 73/78 due to the varying standards that flag states
adopt for enforcement. In polar waters within the limits of the EEZ, coastal states
have enforcement jurisdiction; however, in polar conditions, enforcement capac-
ity may be constrained by logistical and operational conditions. In the Southern
Ocean there are additional constraints created by the Antarctic Treaty’s limitation
on the exercise of jurisdiction, plus the political reality that many states do not
recognise the existence of coastal states around the Antarctic continent.
The MARPOL 73/78 Annexes are under constant review and have under-
gone continual revision and expansion over the years. All the same, the only
specific consideration given to the polar regions in MARPOL 73/78 has been the
listing of the Antarctic as a Special Area under Annexes I, II and V.
20
The IMO has
considered a proposal that the Antarctic Special Area under MARPOL 73/78 be
expanded to make it identical with the outer limits of the 1980 Convention on the
Conservation of Antarctic Marine Living Resources, but no decision has been
taken.
21
MARPOL 73/78 has additional limitations in its application to polar
waters.
22
The growing number of flag-of-convenience vessels operating in polar
waters will make it more difficult to ensure that MARPOL 73/78 standards are being

adhered to. This is especially an issue for tourist vessels, which are visiting polar
62 Donald R. Rothwell
19
As at 8 June 1999, Annex IV had received seventy-five ratifications, representing only some 43 per
cent of world tonnage; see updated status at the International Maritime Organisation w
ebsite at
www.imo.org.
20
See the discussion in M. White, Marine Pollution Laws of the Australasian Region (Annandale:
Federation Press, 1994), pp. 261–2.
21
‘Report of the 37th Session of the Marine Environment Protection Committee’, Environmental
Policy and Law, Vol. 26, 1996, p. 17. See also the discussion byVidas, Chapter 4 in this book.
22
See the discussion in White, Marine Pollution Laws in the Australasian Region, p. 261.
waters in increasing numbers. Moreover, MARPOL 73/78 often establishes limita-
tions on discharges from nearest land; due to the ice-fringed nature of polar coast-
lines, however, this can be difficult to determine.
23
In any event, with much of the
polar oceans covered with ice of various forms even during the summer months,
24
any legitimate discharge of oil or other pollutants under MARPOL 73/78 standards
in these waters has the potential to create serious environmental impact on the
marine environment and the marine ecosystem. A more practical and environ-
mentally sensitive definition of ‘nearest land’ in the polar regions would therefore
be helpful. A further area where MARPOL 73/78 could be expanded is through
greater recognition of the ‘Particularly Sensitive Sea Area’ concept, to allow for
additional special measures to be taken to protect designated marine areas. This
also would have obvious applications in polar waters and be a further step towards

recognising the special environmental conditions of the polar oceans.
     
The 1972 London Convention
The 1972 Convention on the Prevention of Marine Pollution by Dumping
of Wastes and Other Matter
25
is another international instrument designed to pro-
hibit and limit marine pollution. To that end, the London Convention supports the
terms of the LOS Convention and is similar in its goals to MARPOL 73/78. The
London Convention seeks to ensure that all practicable steps are taken to prevent
pollution of the sea by the dumping of waste, or the dumping of other matter that
is liable to create hazards to human health, or to har
m living resources and marine
life (Article I). Contracting parties are also to take measures individually, according
to their capabilities, to prevent pollution caused by dumping (Article II). Enforce-
ment is primarily through the flag state (Article VII). ‘Dumping’ includes any
deliberate disposal at sea of wastes or other matter from vessels, aircraft, platforms
or other man-made structures at sea (Article III). It also extends to any deliberate
disposal at sea of vessels, aircraft, platforms or other man-made structures (Article
III). However, dumping does not extend to the disposal at sea of wastes which are
incidental to the normal operations of vessels, aircraft, platforms and other man-
made structures (Article III). The Convention distinguishes between three types of
waste: (1) wastes which are prohibited from being dumped; (2) wastes which
require a special prior permit in order to be dumped; and (3) wastes which require
a prior general permit in order to be dumped (Article IV).
Global environmental protection instruments 63
23
See MARPOL 73/78, Annex I, Regulation 1(9). With the exception of the Great Barrier Reef area
along the northeastern coast of Australia, ‘nearest land’ is defined as being ‘the baseline from
which the territorial sea in question is established in accordance with international law’; MARPOL

73/78, Annex I, Regulation 1(9).
24
See Brigham, Chapter 11 in this book, Figure 11.1.
25
The Convention was originally known as the ‘London Dumping Convention’; however, in 1992 it
was agreed that the short name of the Convention should become the ‘London Convention’.
Annexes to the Convention list the various substances which fall into
each of these categories. Annex I substances are those which cannot be dumped,
while Annex II substances cannot be dumped without a prior special permit. In
cases where a permit is required for dumping, ‘careful consideration of all the
factors set forth’ in Annex III is to be taken into account prior to a permit being
issued (Article IV).
26
An exception to the above provisions exists in instances where
dumping is necessary to secure the safety of human life or the safety of vessels and
aircraft (Article V). Contracting parties are required to establish and nominate
appropriate authorities which are to be responsible for the issuing of permits and
maintaining records on dumping activities. (Article VI).
The London Convention has been subject to ongoing review, and amend-
ments have been introduced prohibiting the dumping of radioactive waste, indus-
trial waste, and the incineration at sea of industrial waste.
27
The most substantial
amendments took place in 1996 following the adoption of a new P
rotocol.
28
The
effect of the Protocol is to place considerable limitations on material that may be
dumped at sea. Article 4 provides that only those materials listed in Annex I may be
dumped,

29
with the sole exceptions being in case of force majeure or in any case
which constitutes a danger to human life or a real threat to vessels.
Assessment
The London Convention has particular application to polar waters, given
the potential that exists for some states, ship owners and waste disposers to exploit
the polar regions as a potential dumping ground for hazardous wastes
. In that
regard, special attention has in recent years been given to the dumping of haz-
ardous wastes in the Arctic, especially radioactive waste in Russian waters.
30
At the
1997 Arctic Environmental Protection Strategy Ministerial Meeting, express refer-
ence was made to the need for regional cooperation to ‘enhance nuclear reactor
safety and to increase and promote the safe management, storage and disposal of
spent nuclear fuel and radioactive waste’.
31
The ministers recognised the impor-
tance of ongoing cooperation to provide for the early completion of facilities
needed to implement the ban on the dumping of radioactive waste at sea adopted
under the London Convention.
64 Donald R. Rothwell
26
Factors listed in Annex III relate to the characteristics and composition of the matter, and the
characteristics of the dumping site and method of deposit.
27
See ‘Ban on Sea Dumping of Radioactive Wastes Takes Effect’, Marine Pollution Bulletin, Vol. 28,
1994, p. 194. For background on the issue of radioactive waste dumping, see D. P. Calmet and J. M.
Bewers, ‘Radioactive Waste and Ocean Dumping: The Role of the IAEA’, Marine Policy, Vol. 15, 1991,
pp. 413–30.

28
ILM, Vol. 36, 1997, pp. 1ff. See the discussion by Stokke, Chapter 9 in this book.
29
The exceptions listed in Annex I include dredged material, sewage sludge, fish waste, vessels and
platforms and man-made structures, inert inorganic material, organic material of natural origin
and various listed bulky items.
30
A detailed discussion is provided by Stokke, Chapter 9 in this book.
31
Alta Declaration, para. 16.