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Marine Pollution Problems and Remedies

Published online by Cambridge University Press:  28 March 2017

Oscar Schachter  and
Daniel Serwer
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Extract

Marine pollution is a global problem in several senses. It affects the health of the oceans in all parts of the world; it affects all countries, both developed and developing; and all countries contribute to some aspects of the problem. Some marine pollution problems are local, but many have international implications. Particularly if the effects of pollution on the living resources of the sea are considered, very few marine pollution problems can be considered matters of exclusively local interest.

Type
Research Article
Information
American Journal of International Law , Volume 65 , Issue 1 , January 1971 , pp. 84 - 111
Copyright
Copyright © American Society of International Law 1971 

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Footnotes

*

Mr. Schachter, of the Board of Editors of the Journal, is the Director of Research of the United Nations Institute for Training and Research (UNITAR). He was the President of the American Society of International Law for 1968-1970. Mr. Serwer, an Assistant Research Fellow of UNITAR, has been a Danforth Fellow in the Department of Chemistry at the University of Chicago and a National Science Foundation Fellow in the Program in History and Philosophy of Science at Princeton University. The article is based on research undertaken for UNITAR and the Pacem in Maribus Convocation in Malta, 1970, and has been distributed as a UNITAR Research Report. The views, interpretations and conclusions are those of the authors and are not to be attributed to UNITAR.

References

1 The Secretary General of the United Nations has “urgently recommended” the creation of a “global authority to deal with the problems of the environment.” See U Thant, “The United Nations: the Crisis of Authority,” Address to the Fourteenth World Congress of the World Association of World Federalists (Ottawa, Aug. 23, 1970), as reported in U.N. Press Release SG/SM/1323. An eloquent call for an International Environmental Authority has been made by George Kennan in “To Prevent a World Wasteland: a Proposal,” 48 Foreign Affairs 401 (1970). A suggestion for an International Environmental Authority of a somewhat different nature has been made by R. R. Baxter in “International Cooperation to Curb Fluvial and Maritime Pollution,” Proceedings, Columbia University Conference on International and Interstate Regulation of Water Pollution held on March 12–13, 1970, p. 73. See also the statements of Professors Richard, A. Falk and Richard, N. Gardner in 1970 A.S.I.L. Proceedings, 64 A.J.I.L. (September, 1970) 211, 217 Google Scholar. A different approach to establishing international supervision of at least some kinds of marine pollution is found in the Draft United Nations Convention on the International Seabed Area, U.N. Doc. A/AC.138/25, 9 Int. Legal Materials 1046 (September, 1970), presented to the United Nations Seabeds Committee by the United States on Aug. 3, 1970. Under this convention, the control of marine pollution arising from activities in the International Seabed Area would be under the supervision of an International Seabed Authority entrusted as well with supervising the exploration and exploitation of seabed resources.

For a general treatment of the processes of authority over the seas, see Myres, S. McDougal and William, T. Burke, The Public Order of the Oceans (New Haven: Yale University Press, 1962)Google Scholar, and Burke, W. T., Ocean Sciences, Technology and the Future International Law of the Sea (1966)Google Scholar.

2 See “General Plan and Implementation Programme of IGOSS Phase I,” UNESCO Doc. SC/10C–VI/21 Ref. (Oct. 27, 1969).

3 Stommel, Henry, “Future Prospects for Physical Oceanography,” 168 Science 1536 (June 26, 1970)Google ScholarPubMed. Dr. Stommel, an oceanographer, has expressed misgivings as to the utilities of the proposed global monitoring system to scientists. In his opinion, “. . . no oceanographic problem has yet been formulated that can justify a data-gathering system on a global scale involving several hundred widely dispersed buoys.” lie feels that both IGOSS and the U. S. National Data Buoy Project “do not appear to be aimed at any clearly defined scientific problem.”

4 The U.N. General Assembly has passed several resolutions on the need for more research on the oceans and has endorsed an “International Decade of Ocean Exploitation.” See U.N. General Assembly Res. 2172 (XXI), 2412 (XXIII) and 2467 (XXIII). Research needs are outlined in “Global Ocean Research,” a report of the Joint Working Party on the Scientific Aspects of International Ocean Research (set up by the Food and Agriculture Organization, the World Meteorological Organization and the International Council of Scientific Unions), and also in the “Comprehensive Outline of the Scope of the Long–term and Expanded Programme of Oceanic Exploration and Research,” submitted by the Intergovernmental Oceanographie Commission, in Annex to the Note by the Secretary General to the U.N. General Assembly, U.N. Doc. A/7750 (Nov. 10, 1969). Stommel, ibid., comments on the relative merits of these two documents.

5 Zimmerman, David R., “Death Comes to the Peregrine Falcon,” New York Times Magazine, Aug. 9, 1970, p. 8 Google Scholar.

6 The “Ocean” issue, 221 Scientific American (September, 1969), is a good layman’s introduction to the scientific aspects of the oceans. For more technical material see reports referred to in note 4 above.

7 Natural submarine seepage of oil occurs in both the Santa Barbara Channel and the Gulf of Mexico, two areas which have recently been the scene of oil pollution from off–shore wells. Oil from submarine seepage was observed in the Santa Barbara Channel as early as 1793, as pointed out by Jan Hahn in “Natural Oil Seepage,” XV Oceanus 12 (Woods Hole Oceanographic Institution, October, 1969).

8 Blumer, M., “Oil Pollution of the Ocean,” XV Oceanus 3 (Oct. 10, 1969)Google Scholar.

9 Carter, Luther J., “Global Environment: MIT Study Looks for Signs of Danger,” 169 Science 660 (Aug. 14, 1970)Google Scholar.

10 The fate of oil in the marine environment is discussed in Holcomb, Robert W., “Oil in the Ecosystem,” 166 Science 204 (Oct. 10, 1969)CrossRefGoogle ScholarPubMed; McCaull, Julian, “Black Tide,” 11 Environment 2 (Committee for Environmental Information, St. Louis, Mo., November, 1969)Google Scholar; and Zobell, Claude E., “The Occurrence, Effects, and Fate of Oil Polluting the Sea,” Proceedings, International Conference on Water Pollution Research (London: Pergamon Press, 1964)Google Scholar.

11 Horn, Michael H., Teal, John M. and Backus, Richard H., “Petroleum Lumps on the Surface of the Sea,” 168 Science 245 (April 10, 1970)CrossRefGoogle Scholar.

12 M. Blumer, note 8 above.

13 Thor Heyerdahl, “Ocean Pollution Observed by Expedition ‘RA,’” attached to IMCO Doc. OPS/Circ. 21 (Oct. 23, 1969) and GESAMP/30 (Feb. 20, 1970V GESAMP documents come from the Joint IAEA/IMCO/FAO/UNESCO/WHO/WMO Group of Experts on the Scientific Aspects of Marine Pollution for which IMCO handles the secretariat responsibilities.

14 The much-publicized attempts to clean oiled birds after both the Santa Barbani Channel and Honey Canyon oil spills were not successful. According to Julian McCauli, note 10 above, only 450 of 7,849 birds cleaned were alive two months after the Torrey Canyon spill; 198 of 1,653 birds cleaned were alive two months after the Santa Barbara Channel spill.

15 Hampson, G. R. and Sanders, H. L., “Local Oil Spill,” XV Oceanus 8 (October 1969)Google Scholar.

16 Goldberg, Edward E., “Chemical Invasion of the Ocean by Man,” 1970 Yearbook of the Encyclopedia of Science and Technology 68 (McGraw–Hill)Google Scholar.

17 M. Blumer, note 8 above.

18 Claude E. Zobell, note 10 above.

19 The practices of a number of governments can be found in “Replies to the Questionnaire on Action taken by Governments to implement National Arrangements for Dealing with Significant Spillages of Oil,” IMCO Doc. OPS/Circ. 19 (Oct. 3, 1969) or GESAMP/29 (Feb. 20, 1970).

20 “Spectrum,” 11 Environment S–3 (September, 1969).

21 New York Times, May 15, 1970, p. 67, col. 1.

22 Ibid., April 27, 1970, p. 13, col. 1.

23 Robert W. Holcomb, note 10 above.

24 The problems of oil pollution in the Arctic are discussed in the “Arctic Issue,” 1 (NS) Marine Pollution Bulletin (May, 1970).

25 499 U.N. Treaty Series 312; 52 A.J.I.L. 858 (1958). Art. 5: “The coastal State is obliged to undertake, in the safety zones, all appropriate measures for the protection of the living resources of the sea from harmful agents.”

The U.S. proposed Draft United Nations Convention on the International Seabed Area, note 1 above, would place deep–water drilling beyond the 200-meter isobath on the continental margins under international supervision. It would also place exploration and exploitation of the other resources of the seabed under international supervision. This is a subject likely to be of considerable importance in the future. See J. E. Portmann, “Marine Pollution by Mining Operations, with Particular Reference to Possible Metal–Arc Mining,” GESAMP/20 (Feb. 2, 1970); Jan Lopuski, “Legal Aspects of Problems Connected with the Development of International Control of Pollution Deriving from the Exploration or the Exploitation of the Sea–bed and Ocean Floor,” GESAMP/16/1 (Jan. 14, 1970); Part III of the Questionnaire on Pollution of the Marine Environment, IMCO Doc. OPS/Circ. 15 (May 13, 1969), attached to GESAMP/22 (Feb. 10, 1970); and the Report of the Secretary General to the General Assembly on “Marine pollution and other hazardous and harmful effects which might arise from the exploration and exploitation of the sea–bed and the ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction,” U. N. Doc. A/7924 (June 11, 1970).

26 450 U.N. Treaty Series 82; 52 A.J.I.L. 842 (1958). Art; 24: “Every State shall draw up regulations to prevent pollution of the seas by the discharge of oil from ships or pipelines or resulting from the exploitation and exploration of the seabed and its subsoil, taking account of existing treaty provisions on the subject.” 45 states were parties to the 1958 Convention on the High Seas as of October 1, 1970.

A provision applicable to pollution by oil, and to pollution by wastes in certain cases is Art. 24 of the Convention on the Territorial Sea and the Contiguous Zone, 5i6 U.N. Treaty Series 206, which provides that a coastal state has the right to exercise in the contiguous zone the control necessary to “(a) Prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea; (b) Punish infringement of the above regulations committed within its territory or territorial sea.” This article is, however, limited to action by a coastal state in a contiguous zone of no more than 12 miles for enforcement of its sanitary regulations (insofar at least as marine pollution is concerned).

27 9 Int. Legal Materials 1 (January, 1970).

28 Albert W. Koers in “The Enforcement of Fisheries Agreements on the High Seas. A Comparative Analysis of International State Practice,” Occasional Paper No. 6 of the Law of the Sea Institute (University of Rhode Island, June, 1970), suggests that the enforcement of fisheries agreements may provide some guidance in this area.

There has, however, already been a significant degree of compliance, due in large part to the “clean seas” policies of the major oil companies; see Brockis, Graham and Beynon, Ray, “Keeping Coasts Clean,” 37 New Scientist 196 (Jan. 25, 1968)Google Scholar. According to the Shell Briefing Service, “Conserving Our Environment” (July, 1970), “Eighty per cent of the world’s tanker fleet now conform to this [load–on–top] system, and it is conservatively estimated that two million tons of oil per year are now retained which once found their way to the sea.”

29 Report of the Tenth Session of the ACC Sub–Committee on Marine Science and its Applications, U.N. Doc. CO–ORDINATION/R. 793 (March 10, 1970), Annex III, p. 10.

30 This view was taken by the Institut de Droit International in a recent resolution on “Measures Concerning Accidental Pollution of the Seas” adopted at its Edinburgh session, 1969. The Canadian Government has gone much farther than this in the Arctic Waters Pollution Bill which asserts Canadian jurisdiction to prevent pollution over a 100–mile zone in the Arctic region, 18–19 Eliz. 2, c. 47 (Can. 1970); 9 Int. Legal Materials 543 (1970). Prime Minister Trudeau appealed for an effective international régime to control pollution but said that, until such a régime exists, Canada had to take steps to ensure that irreversible harm will not occur as a result of negligent or intentional conduct in the Arctic region. See press release issued by the Office of the Prime Minister, Ottawa, Canada, April 15, 1970, and 9 Int. Legal Materials 600 (1970).

31 64 A.J.I.L. 471 (1970); 9 Int. Legal Materials 25 (January, 1970). The convention has not yet entered into force.

32 64 A.J.I.L. 481 (1970); 9 Int. Legal Materials 45 (January, 1970). The convention has not yet entered into force.

33 The question of how pesticides and other chlorinated hydrocarbons enter the marine environment, as well as the concentrations of chlorinated hydrocarbons in marine life and the effects of these concentrations, is discussed in Justin Frost, “Earth, Air, Water,” 11 Environment 15 (July–August, 1969), and R. W. Riseborough, “Chlorinated Hydrocarbons in Marine Ecosystems,” in Morton W. Miller and George C. Berg, Chemical Fallout: Current Research on Persistent Pesticides (Springfield, Illinois: Charles G. atmosphere, including lead and carbon dioxide. The input of lead from human activities, primarily from the burning of leaded gasoline, is of the same order of magnitude as the input of lead from natural sources, approximately 150,000 metric tons per year. See Edward E. Goldberg, note 16 above.

34 Woodwell, G. N., “Toxic Substances and Ecological Cycles,” 216 Scientific American 24 (March, 1967)CrossRefGoogle ScholarPubMed.

35 Peterle, Tony J., “Pyramiding Damage,” 11 Environment 34 (July–August, 1969)Google Scholar.

36 Broecker, Wallace S., “Man’s Oxygen Reserves,” 168 Science 1537 (June 26, 1970)CrossRefGoogle ScholarPubMed

37 Ibid, at 1538.

38 C. F. Wurster in the discussion following R. W. Riseborough, note 33 above.

39 New York Times, Aug. 21, 1970, p. 1, col. 4.

40 Frank Fraser Darling, “Man Against Nature,” UNESCO Courier 35 (January, 1969).

41 Report of the Director General to the Twenty–Second World Health Assembly (Boston, July 8–25, 1969), Official Records of the World Health Organization, No. 177, Part II, p. 46.

42 The accounting problem with regard to chlorinated pesticides is not limited to their effects in the marine environment. Their effectiveness as broad-spectrum pesticides has led to increased pest problems in some areas. One case is recounted in some detail in Gordon R. Conway, “A Consequence of Insecticides” in M. Taghi Farvar and John Milton, The Unforeseen Ecological Boomerang (Natural History Special Supplement) 46. See also the Staff Report, “Diminishing Returns,” 11 Environment 6 (September, 1969).

43 Among the suggestions are the Declaration on the Management of the Natural Environment of Europe, adopted at the European Conservation Conference (Strasbourg, Feb. 9–12, 1970), the Draft Rules Governing Certain Changes in the Environment of Man (prepared by David Davies Memorial Institute of International Studies, London) and the Tokyo Resolution of the International Social Science Council’s Standing Committee on Environmental Disruption (March 12, 1970). The question of what criteria should be applied in formulating environmental policy, and in particular the relative merits of maximizing benefit as opposed to minimizing risk, are discussed in S. V. Ciracy-Wantrup, “Economics of Environmental Policy,” Pacem in Maribus, Vol. V, The Ocean Environment 235 (Center for the Study of Democratic Institutions, Santa Barbara, California).

44 This has been suggested previously by Peter Thacher of the U.S. Mission to the United Nations. See Proceedings, Columbia University Conference on International and Interstate Regulation of Water Pollution, note 1 above, at 102.

45 The amount of DDT used for malaria eradication is unknown, but it is probably less than 15 percent of a total of about 300,000 tons per year. See the comments of the delegate of The Netherlands at the Twenty–Second World Health Assembly, note 41 above, at 222.

46 See Schachter, Oscar, “Scientific Advances and International Law Making,” 55 California Law Review 423 (May, 1967)CrossRefGoogle Scholar, in particular pp. 427–428.

47 Examples of domestic and industrial wastes are listed in the Annex to the Report of the Special Session of the ACC Sub–Committee on Marine Science and Its Applications, UNESCO Doc. AVS/9/87 (August, 1967), and in the Report of the First Session of the Joint Group of Experts on the Scientific Aspects of Marine Pollution, GESAMP 1/11 (July 11, 1969). Categorizing wastes is a popular exercise of dubious usefulness. The categories used here correspond roughly to those used in the above documents.

48 London Times, May 15, 1970, p. 4.

49 First Annual Report of the Council on Environmental Quality of the United States Government 175 (transmitted to the U.S. Congress, Aug. 1970). For a detailed study of pollution in estuaries, see the United States Department of Interior’s National Estuarine Pollution Study (Nov. 3, 1969).

50 UNESCO Doc. AVS/9/87, note 47 above.

51 “Spectrum,” 11 Environment S–3 (September, 1969).

52 Marx, Wesley, The Frail Ocean (New York: Ballantine Books, 1969)Google Scholar. Chap. 2 describes the case of the Florida red tides in some detail.

53 Bengt Lundholm, “The Oceans—Their Production and Pollution with the Baltic as a Case Study,” in Pacem in Maribus, Vol. V, The Ocean Environment 92 (Center for the Study of Democratic Institutions, Santa Barbara, Calif.).

54 Discharges of mercury from factories are not the only source of mercury in the oceans. Mercurial fungicides are used as seed dressings in many countries. Water run-off from agricultural areas carries some of this mercury to the oceans.

55 Hedgpeth, J. W., “The Oceans: World Sump,” 12 Environment 44 (April, 1970)Google Scholar.

56 Polikarpov, G. G., Radioecology of Aquatic Organisms (New York: Reinhold Book Division, 1966)Google Scholar.

57 Note 49 above, at 174.

58 Wenk, Edward Jr., “The Physical Resources of the Ocean,” 221 Scientific American 174 (September, 1969)Google Scholar.

59 “Spectrum,” 12 Environment S-1 (April, 1970), and Fonselius, Stig H., “Stagnant Sea,” 12 Environment 2 (July-August, 1970)Google Scholar. The report on which these are based is the Report of the ICES Working Group on Pollution of the Baltic Sea, Cooperative Research Report No. 15, Series A (International Council for the Exploration of the Sea, February, 1970).

60 New York Times, July 17, 1970, p. 3, col. 5.

61 Ibid., July 19, 1970, p. 3, col. 1.

62 See, for example, New York Times, Sept. 11, 1970, p. 26, col. 4.

63 Among the relevant IAEA guides and standards are Radioactive Waste Disposal Into the Sea (Safety Series No. 5, 1961), Regulations for the Safe Transport of Radioactive Materials (Safety Series No. 6, 1964 and later editions), Methods of Surveying and Monitoring Marine Radioactivity (Safety Series No. 11, 1965), and Safety Considerations in the Use of Ports and Approaches by Nuclear Merchant Ships (Safety Series No. 27, 1968). The second of these sets forth IAEA standards which, in accordance with the IAEA Statute, must be applied to IAEA activities and to projects which the IAEA assists.

64 As described in the Annex to the Report of the Secretary General to ECOSOC, “Problems of the Human Environment,” U.N. Doc. E/4667 (May 26, 1969).

65 These include studies in the Baltic, the North Sea, the Mediterranean and the Caribbean.

66 See the Report of the Second Session of Joint Group of Experts on the Scientific Aspects of Marine Pollution, GESAMP 11/11 (June 20, 1970), and the background documents listed in Annex II to the Report.

67 Thus, as Michael Hardy observed, a case “would be likely to turn, not on the basic question of the legality or illegality of waste disposal per se, but on the extent of knowledge, the foreseeability of harm and the standard of proof required, all matters of which international tribunals (by comparison with national courts) have relatively little experience or case law to guide them.” See Hardy, “International Control of Marine Pollution,” in the collection of essays in memory of John McMahon edited by James Fawcett (Royal Institute of International Affairs, London) to be published in 1971.

68 IMCO Report on the Questionnaire on Pollution of the Marine Environment, IMCO Doc. OPS/Circ. 15 (May 13, 1969) or Annex I to GESAMP/22 (Feb. 10, 1970). The United States Council on Environmental Quality, noting that marine dumping is likely to increase rapidly in the future due to increasing concern about waste disposal on land and in inland waters, has proposed “phasing out all harmful forms of ocean dumping” and the licensing by a Federal agency of all permitted dumping. See New York Times, Oct. 8, 1970, p. 1, col. 4, and the report itself, “Ocean Dumping: A National Policy,” October, 1970.

69 Robert P. Brown and David D. Smith, Interim Summary of “Marine Disposal of Solid Wastes” for the Bureau of Solid Waste Management of the Department of Health, Education and Welfare of the United States Government (Oct. 24, 1969).

70 “Monitor,” 46 New Scientist 102 (April 16, 1970).

71 The proposal for registration is still alive. See GESAMP 1/11, note 47 above.

72 “Spectrum,” 11 Environment S-2 (July-August, 1969).

73 See the Recommendations of the First Meeting of the IOC Working Group on Marine Pollution, August 14–17, 1967. The IAEA has been active in studying marine disposal of radioactive wastes for some time, as described in Annex XI to “Marine Science and Technology: Survey and Proposals,” Report of the Secretary General to ECOSOC, U.N. Doc. E/4487 (April 24, 1968).

74 London Times, Aug. 10, 1969.

75 New Scientist, note 70 above, and New York Times, April 2, 1970, p. 15, col. 1.

76 There is still some question about this. See Luther J. Carter, “Nerve Gas Disposal: How the AEC Refused to Take Army off the Hook,” 169 Science 1296 (Sept. 25, 1970).

77 See note 63 above.

78 See the European Nuclear Energy Agency’s Radioactive Waste Disposal into the Atlantic (1968).

79 Draft United Nations Convention on the International Seabed Area, note 1 above. Art. 1(2) defines the international seabed area; Art. 9 provides for safeguards of the marine environment; and Art. 23 requires the Seabed Authority to prescribe rules and recommended practices for protection of the environment and prevention of injury to persons, property and resources.

80 Statement before the United Nations Seabed Committee, Aug. 20, 1970.

81 Ibid.

82 See the Report of the Secretary General, note 64 above, and the Report of the Preparatory Committee for the United Nations Confrence on the Human Environment, A/CONF.48/PC/6 (April 6, 1970). With regard to marine pollution in particular, see the Prospectus for the FAO Technical Conference on Marine Pollution and Its Effects on Living Resources and Fishing (Rome, Dec. 9–18, 1970) and report pursuant to U.N. General Assembly Res. 2566 (XXIV).

83 The International Council of Scientific Unions and the International Union for the Conservation of Nature, in particular, are likely to play significant roles in international efforts to solve environmental problems. For a comprehensive and lively account of recent developments in the international non–governmental conservation movements, see Max Nicholson, The Environmental Revolution (London, 1970).