International law and the control of marine pollution from land-based sources: a theoretial analysis
Aoko, Jane Frances
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In this dissertation, we undertake a theoretical analysis of the existing international legal regime for the control of land-based sources of pollution. In chapter one, our concern is with definitions and concepts and the related problems. We make a comparative analysis of the various definitions of marine pollution that have so far been advanced, noting in particular the influence of the GESAMP definition on the rest. We point out as most appropriate the definition contained in the 1982 UN Convention on the Law of the Sea which utilizes both the phrases 'likely to result in' and 'marine life'. We examine the concept of land -based sources of pollution using as our basis, the Montreal Guidelines for the Protection of the Marine Environment against Pollution from Land-based Sources (1985). Next, we look at the delimitation of~he marine environment under international law, pointing out the various competences of states in the various sections, for example, in the Territorial Sea, the Exclusive Economic Zone and in the High Seas. We proceed to examine the rationale for the control of these sources of pollution and make the necessary conclusions. In chapter two, we examine states' obligations under general international law to protect the marine environment from pollution. We acknowledge the existence of rules of customary international law on the protection of the environment as a whole, these being reflected in the decisions of international tribunals, the teaching of publicists, state practice and even in conventions on particular types of environmental pollution. Land-based marine pollution is part and parcel of the global environmental pollution, and thus becomes an issue of international concern as do other types of environmental pollution. In particular, we discuss the duties not to cause harm to another state's terri tory, to prevent transfrontier pollution of the high seas, to inform, to consult, to negotiate, to co-operate, and also discuss the desirability of a duty not to cause pollution within a state's own territory. Under this chapter, we also discuss the 1972 united Nations Conference on the Human Environment and its contribut ion to the question of land-based marine pollution control. Here, the Declaration and Action Plan adopted at the end of the conference are the focus of attention. No doubt the principles and recommendations contained in these documents provided the framework and the basis for further development of customary and conventional international law on marine pollution. Signif icantly, it is under the Action Plan (Recommendation 86(f) thereof) that the concept of land-based sources of marine pollution first appeared in an internationally adopted document. Chapter three discuses states' obligations under treaty law to protect the marine environment from land-based sources of pollution. As far as treaty law before 1972 is concerned, mention is made of the various conventions on oil pollution control, noting the general principles which would be useful also in controlling land-based sources of marine pollution. We then proceed to discuss the 1958 Geneva Conventions on the Law of the Sea, pointing out their possible contribution to the control of land-based sources of marine pollution even if only incidentally. We however accept the overriding reality that these treaties fell a long way short of constituting a general duty to control and regulate all sources of marine pollution or to protect the marine environment, and their content was uncertainly defined leaving states much discretion in their application. Our discussion of treaty law after 1972 focuses particularly on the Regional treaties for the control of land-based sources of pollution. The role of UNEP in this regard is underlined. A comparative analysis of the Paris and Helsinki Conventions, and of the Athens and Quito Protocols in regard to the legal techniques of control of land-based marine pollution embodied in each is undertaken. The various strengths and weaknesses in the treaties' provisions are pointed out. We proceed to give a summary of the chapter. Chapter four is on global perspectives on land-based marine pollution control. Hereunder, we look at the contribution of the UN Convention on the Law of the Sea 1982, in controlling land-based marine pollution. Next, we discuss the Montreal Guidelines pointing out their strengths and weaknesses and also the impact the Guidelines havechad on states and international organisations with regard to their adoption of laws and policies relevant to land-based marine pollution control. \\e acknowledge that international control of land-based marine pollution has so far had a definite bias for regional arrangements and proceed to make a case for global arrangements with a preference for a global Convention. Our concern is that the problem of land-based marine pollution continues to grow in magni tude and proport ions notwi thst anding the exist ing regional arrangements. It is our thesis that such a global Convention would provide a 'purposeful link' between the national and regional rules and standards in order to ensure that they are responsible for both national and regional CIrcumstances and also basic global requirements. The global convention necessarily complements or supplements the ex i s t inq regional arrangements. The bottom line is that greater successes in the control of the problem of land-based marine pollution can only be realised when such a comprehensive three tier approach to control is adopted by the international community. At the end of the dissertation, we make the necessary conclusions and recommendations.