New Zealand Journal of Environmental Law
Last Updated: 25 January 2023
Environmental Threats to Cetaceans and the Limits of Existing Management Structures
This article examines the environmental threats that are posed to cetaceans and examines the way the international community in general has begun to deal with them. A broad approach to the international community is taken, as the environmental threats overlap with issue-specific forums other than the International Whaling Commission (IWC). Although the international response to ozone depletion has been successful, and the Persistent Organic Pollutants (POPs) convention shows promise, the international community is clearly failing with regard to adequately dealing with climatic change, and its response to rivers suffers from a lack of specific commitments at both the general and specific levels. The IWC must increasingly be active in related forums as the ultimate conservation of cetaceans may be decided elsewhere, not within traditional whaling debates.
Traditionally, the greatest threat to cetaceans was over-harvesting. In the present and future, it is likely whales, dolphins and porpoises face different threats, less visible, but just as deadly as the traditional forms of whaling that have commonly lead to their over-exploitation. The new threat is that of environmental change. That is, in the 21st century, environmental changes may now be the greatest threat facing the overall survival of a number of species (ie. not just whales) that
* LLB, LLM (Hons) Auckland, PhD Nottingham. Senior lecturer in law at Waikato University.
inhabit the water, of which cetaceans are one of the more apparent.1 As such, understanding the health and management of the oceans that cetaceans inhabit is essential to any meaningful comprehension of the scope of the problems ahead in the coming decades.
This article has two objectives. The first is to examine the environmental threats that are posed to cetaceans. The second goal is to display the way the international community has begun to deal with them. It is necessary to examine the broader response of the international community in general, as ultimately, the resolution of most of these difficulties will be achieved in other issue-specific forums, and not the International Whaling Commission (IWC). This is unfortunate, as in regard to the problem of environmental threats, the IWC may be losing part of its ability to ultimately fulfill its mandate. This problem is doubly troubling, as many of the other forums have had only limited success in protecting the environmental health of the oceans. The article seeks to show the environmental threats which overlap with other forums and the lacunas that exist.
II. ENVIRONMENTAL THREATS & CETACEANS
The awareness of the threat of environmental degradation began at the IWC in 1973, when the Scientific Committee expressed a belief that the effects of pollution on whale stocks may be an important consideration.2 Seven years later in 1980 the Commission resolved:
?” (1995) New Scientist (N.Sci) July 1: 12. Note, other species have suffered because of marine pollution. See Bergeron, L., “What’s Killing California’s Sea Otters ?” (1998) N.Sci May 23: 12; “Pollution Partly to Blame for Seal Deaths” (1993) N.Sci April 3: 10. Note, with the seal deaths in the late 1980s and early 1990s, it appears that a virus was also at work, which made have become more successful because of pollution levels reducing the resistance of seals immune systems. See Brown, P., “Blinded By Pollution” (1988) N.Sci September 1: 27; Harwood, J., “Lessons from the Seal Epidemic” (1989) N.Sci February 18: 38-44. Note however, in some instances, pollution does not seem to have been involved. See “Chemicals Cleared of Blame for Dead Seals” (1989) N.Sci April 15: 21.
27. Noted in Birnie, P., The International Regulation of Whaling (Volume 1, 1985) 437. Note, this issue became sharply focused in the late 1980s. See Holderness, M., “Dolphin Deaths Raise Pollution Worries” (1987) N.Sci September 3: 22; “The Chain of Death Spreads” (1988) N.Sci January 28: 30; Pearce, F., “Seal Virus Spreads to Porpoises” (1988) N.Sci November 5: 21; “What Is Killing the Mediterranean’s Dolphins?” (1990) N.Sci September 15: 7; Webb, J., “Dolphin Epidemic Spreads to Greece” (1991) N.Sci September 7: 18.
[t]hat responsible member governments of the IWC should take every possible measure to ensure that degradation of the marine environment, resulting in damage to whale populations and subsequent harm to affected peoples does not occur.3
Although this issue was discussed in passing within the IWC throughout the 1980s,4 it was at the inter-related forums of the Convention on Migratory Species (CMS) in 1985 that the issue appeared with greater force. Here, in preparation for some specialist regional agreements on cetaceans, the problem that pollution posed to their conservation status was clearly recognized within the Commission of the CMS5 and the Working Group, which was working on an “Outline Proposal for an Agreement on small cetaceans in the North Sea.”6 The issue of the effects of pollution upon small cetaceans arose once again at the Conference of the Parties (COP) 2 of the CMS in 1988.7
In the early 1990s, the issue returned to the IWC with force, with the call upon its signatories “to prevent, reduce and control degradation of the marine environment in accordance with their policies, priorities and resources, so as to improve its life support and productive capacities”8 of the oceans. At the same time, the need for environmental research9 on environmental change10 became more heightened within the IWC (and the CMS regional cetacean conventions
— Agreement on the Conservation of Small Cetaceans of the Baltic and North
Sea (ASCOBANS)11 and the Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS))12 with the decision to direct the Scientific Committee to establish a regular agenda item to address the impact of environmental change upon whale stocks.13 Although this was clearly a large task, the Commission was determined to pursue most (but not all threats — ie. noise pollution was left out)14 of this broadened agenda as it was believed that such knowledge was essential guide for the Commission as:
the increasing evidence of degradation of the marine environment which threatens whales and other marine living resources and makes more difficult the attainment of the objectives of the ICRW.15
As a follow-up to this new approach, the IWC then to set special workshops to investigate the problems.16 Following the completion of these workshops in 1995 (Chemicals, and again in 1999) and 1996 (Climate) the IWC instructed the Scientific Committee and the newly formed Standing Working Group on Environmental Concerns to go on to consider a supplemented agenda, including the problems of noise pollution, anthropogenic environmental degradation, and direct and indirect effects of fisheries. Further workshops on specific studies on the Arctic ecosystem (due to overlap of cetacean populations, toxic pollutants, climate change and effect of the ozone hole) were added to the Schedule. In 1998 the IWC commended the Scientific Committee on its work in this area and
15 IWC 44th Report. (1994) 26.
16 Ibid, Appendix 12.
created a dedicated fund for research on environmental change and cetaceans.17 This support was continued between 1999 and 2001.18
III. THE EXPANDING PARADIGM:
THE CONSUMPTION OF POP INFECTED CETACEANS
A strong example of the danger that environmental threats represent to cetaceans is found with Persistent Organic Pollutants (POPs). However, the threat that POPs represent is not limited to cetaceans. Rather, if the POP infected cetaceans are consumed by humans, the problem moves up the food chain. As such, the IWC is faced with a problem with intersectionalities, on a number of levels.
POPs are a particularly unfortunate part of the modern chemical age. Although scientists do not know how many POPs exist in total, 12 POPs (the “dirty dozen”) are particularly good candidates for international attention as they are fairly well understood. Those currently under debate are from pesticides (aldrin, chlorodane, DDT, dieldrin, endrin, heptachlor, mirex, and toxaphene), industrial processes (PCBs & hexachorobenzene) or the unintended by-products of combustion and industrial processes (dioxins and furans). The factors which make all of these chemicals, or their related processes, worthy of note is their commonly shared characteristics. These include their ability to persist in the environment for a long time before they break down; their semi-volatility and ability to travel long distances; and their ability to bio-accumulate. The result of all these characteristics is that (as the British Royal Society concluded in 2000) they are “a grave concern”19 because of the direct threat to human health that they pose.
POPs also represent a widespread direct threat to the health of cetaceans. The traditional argument has been that whale species in the Northern Hemisphere,20 and toothed whales in particular, are the primary cetacean species that are vulnerable to POP contamination.21 However, this approach is an over-
simplification, as although certain species from Northern waters and around some tropical countries22 do have higher concentrations than those in Southern waters,23 evidence is currently suggesting that baleen whales, from as far away as the Antarctica, may be carrying increasing levels of POPs.24 Nevertheless, in high latitudes, POPs are believed to increase faster in concentration than world wide comparisons because of the volatility of contaminants in colder areas, as opposed to warmer ones.25
Cetaceans are amongst the most vulnerable wildlife to the long-term effects of POPs.26 Immunological abnormalities, liver damage and endocrine disturbance, possible birth defects and developmental defects, intestinal cancers and mass mortality events have all been linked to detrimental impacts of POPs upon cetaceans.27 Despite these possible problems the Scientific Committee of the IWC has been cautious in their conclusions about the link between POPs and cetacean decline. After holding a directed workshop on Chemical Pollutants and Cetaceans in 1995, they concluded that despite a lack of direct evidence for cetaceans, there was sufficient data on the adverse effects of pollutants on the health of other marine species and terrestrial species to warrant concern for cetaceans. In an effort to better understand the threat that POPs pose, three species of cetacean (the white whale, the harbor porpoise and the bottlenose dolphin) have been singled out for attention as indicator species by which clearer evidence of the cause-effect relationships of POPS may be established. In 2001, the Scientific Committee agreed that PCB levels in cetaceans will probably increase over the next few decades, and that such increases pose a potential threat to certain cetacean populations.28
1. The Human Consumption of POP Infested Cetaceans
Although conclusive links between POP infection and the declining health of a number of cetacean species have yet been finalized, the IWC has adopted a precautionary approach with regard to the human consumption of such animals. Increasing human stress from environmental disease is a growing problem. Part of this problem concerns the consumption of products which are (unacceptably) poisoned. Consumer safety has arisen as a legitimate concern in a number of international forums, and a number of international bodies have been established with the goal of setting international food standards in international trade (such as Codex Alimentarius within the Food and Agricultural Organization (FAO)) and recommendations on health standards (such as the World Health Organization (WHO)) in response to this problem.29 With specific regard to food sources from the ocean, the International Convention for the Regulation of Whaling (ICRW) was originally unique in that it obliged the signatories to take into account the consumers of whale products.30 Decades later, consumer safety was highlighted in the FAO Code of Conduct on Responsible Fisheries31 and the 1995 Kyoto Declaration.32
With such considerations in mind, a problem arises when it becomes apparent that in certain places, people are consuming cetaceans (which represent a very strong pathway to POP ingestion) that contain concentrations of POPs that continue to accumulate and bio-magnify up the food chain to dangerous levels. For example, in the Arctic where POP contamination can be 10–20 times higher than in most temperate regions, indigenous people who rely on traditional diets are likely to be more exposed to several toxic substances than the majority of people elsewhere in the world.33 Along the west coast of Greenland, in Nunavik, Canada, and in Nikel on the Kola Peninsular of Russia, blood levels of DDT (and DDE) are only a small fraction lower than the levels that are known to have caused neurological defects in babies. Detrimental PCB contamination is a strong problem at Nunavik, and in northwest Greenland, where fetal and childhood development may be at direct risk. This conclusion is not surprising in Greenland,
where more beluga and narwhal is consumed than anywhere else, as 95% of women exceed the Canadian guideline limit for PCB contamination (five parts per million). Such problems, which have been associated with the consumption of POP infested products (typically cetaceans), have not been restricted to the Arctic.
A similar body of evidence is also now developing in Japan in regard to general toxicity problems arising from seafood (in general, and whale meat products in particular) which may contain several sorts of environmental toxins at levels above the safety limits prescribed by most national and international authorities. For example, in 2002 samples from the Tokyo market revealed dolphin meat, mislabelled as whale meat, which contained 2000 micrograms of mercury per gram. This is 5,000 times higher than the 0.4 microgram safety level.34
A number of attempts have been made to challenge the seriousness of the consumption of POP infested cetacean products.35 These challenges have focused on: the supposed lack of conclusive evidence of damage to consumers; a greater problem being the risk to the lifestyle of traditional (indigenous) consumers if they give up their traditional ways; and the alleged health benefits of whale blubber.36 Despite these challenges, a number of sovereign countries (such as Canada,37 Denmark38 and the Faroe Islands39) have issued recommendations for the limitation of the consumption of cetacean products.
With such considerations in mind the IWC introduced a Resolution in 1998 that focused on the Health Effects from the Consumption of Cetaceans.40 The Resolution noted that the Scientific evidence indicat[es] that some Arctic communities are currently faced with the threat of organic contaminants, and heavy metals from the consumption of certain cetacean products. The following year, the IWC issued another Resolution on the Health Effects from the Consumption of Cetaceans, with the difference from the 1998 Resolution that the focus of health concerns was no-longer just Arctic Communities. In addition, in 1999 the Secretariat was instructed to forward the resolution to the WHO.41 The general concern was reiterated in 2000 with a specific IWC Resolution on POPs and Heavy Metals which reiterated the position that:
organic contaminants and heavy metals are seriously polluting the environment and its living resources including whales, and may have a significant negative health effect on consumers of marine mammal products.42
There is little more that the IWC can do in solving these problems, as the solutions which are intimately connected to a clean and healthy ocean can only be resolved in other international, regional and national forums which directly address the specific threats. Unfortunately, the success of these other forums has, overall, been limited, and this may have direct implications for the oceans in general and cetaceans in particular.
IV. THE GENERAL OBLIGATION NOT TO POLLUTE THE OCEANS
As a rule, pollution of the oceans can no longer be regarded as an implicit freedom of sovereign States in the “unowned” commons. This approach is a relatively new development, as although regional attempts to control pollution of the ocean date back to the end of the nineteenth century, international attempts to control pollution only really date back five or so decades. This new rule was clearly evident within the United Nations Convention on the Law of Sea (UNCLOS), which states as one of its basic objectives (inter alia): “A legal order for the seas and oceans which will facilitate... the conservation of the living resources [of the ocean], and the study, protection and preservation of the marine environment.” Specifically, Article 192 stipulates: “States have the obligation to protect and
preserve the marine environment.” Moreover, Article 193 clearly puts this obligation over the sovereign right of States to exploit their natural resources.43 Accordingly, States shall take all measures that are “necessary to prevent, reduce and control pollution of the marine environment from any source.”
These general international objectives are typically mirrored by regional commitments within various regional conventions to protect shared parts of the oceans. In this regard, a number of treaties dealing with pollution in regional oceans have been established. The impetus for this development was the action- orientated Regional Seas Programme, which was established with the formation of United Nations Environment Programme (UNEP) in 1974. This was developed incrementally, and now comprises 13 regions (although more are under discussion).44
The first regimes of particular note were established for the protection of the marine environments of the North Sea and North East Atlantic45 and the Baltic Sea;46 both in 1974. In 1976 the Convention for the Protection of the Mediterranean Sea Against Pollution47 was finalized. This was different to the earlier regional conventions in that it contained the general obligation “to take all appropriate measures”48 to prevent and abate pollution caused by dumping,49 ship-based pollution and pollution caused by land-based sources.50 Although this Convention was built upon by subsequent (more specific) protocols,51 the idea of a framework regional convention on oceanic pollution followed by specific protocols was copied by a number of subsequent regional treaties. The framework regional treaties which followed were Conventions for Kuwait (1978);52 the West
and Central African Region (1981);53 the South East Pacific (1981);54 the Red Sea and Gulf of Aden (1982);55 the Wider Caribbean Region (1983);56 the Eastern African Region (1985);57 and the South Pacific Region (1986).58 In addition, in some places where there are no regional conventions, “Action Plans” exist - such as for the East Asian Seas59 and North West Pacific.60
In 1992, following the emphasis of Agenda 21, a number of reviews of the regional plans were undertaken, so as to ensure that the revitalized and expanded principles from the United Nations Conference on Environment and Development (UNCED) could be incorporated into the previous frameworks. Included within these 1992 revisions were the Convention for the North-East Atlantic,61 the Baltic62 and a new Convention for the Black Sea.63
All of these regional agreements are different, but common themes run through them all. Typically, these include the necessity for signatories to adopt “best environmental practice” and “best available technology” options in trying to achieve their goals. The latter 1992 Conventions add in the requirements of taking “all appropriate measures ... to prevent and eliminate pollution in order to promote the ecological restoration”64 of the covered oceans, as well as adopting the
precautionary, polluter pays and best-available technology principles.65 Despite these general international and regional approaches, the protection of the ocean in an international sense cannot be found in any single codified document which addresses all problems. Rather, the protection of the marine environment, and the species therein, from pollution is found in a number of diverse areas and particular threats, which together, appear to represent an overall umbrella; however, this umbrella has many holes in it.
V. NUCLEAR CONSIDERATIONS
Radiation is naturally present in the physical environment. However, since the advent of the nuclear age it has been supplemented by human utilization (both intentional and accidental) of nuclear materials. At high intensities, radiation can kill cells and lead directly to death. At low levels, it can interfere with a cell’s DNA and lead to various forms of cancer.66 The amount of damage caused to a living organism will depend upon the type and magnitude of radioactivity and depth of dose received. Moreover, certain organisms (such as shellfish, cuttlefish and squid), and even certain organs within species, have a greater predisposition towards absorbing and accumulating radioactive material. This becomes a heightened problem when the species which bio-accumulate such contaminants are in turn consumed by predators further up the food chain, such as cetaceans.67 The world’s marine environment already contains multiple radio-nuclides.
However, such material is not distributed evenly and amounts differ from one region to another. Differences are due to dynamic marine environmental processes and the particular source of radio-nuclides in a region. Even so, soluble radio- nuclides have been transported over long distances by prevailing ocean currents. There is a relatively strong legal framework that covers the general goal: “to reduce and/or eliminate emissions and discharges of radioactive substances in order to prevent, reduce and eliminate pollution of the marine and coastal environment by human-enhanced levels of radioactive substances.”68 Following
from this goal, specific conventions on nuclear safety,69 accidents,70 assistance,71 compensation and liability72 and its oceanic transport73 are relatively well addressed. However, despite the impressive theoretical legal coverage of this area, the sheer magnitude of risk that the nuclear industry can represent (from weapons to waste) should not lead to the assumption of either safety or a “problem solved” situation. Indeed, due to nuclear tests, nuclear accidents and intentional disposal into the ocean suggest that this threat to the world’s oceans is far from removed.
Global fallout of artificial radio-nuclides (which effected both the terrestrial and marine environments) is known to be mainly due to the 2,410 nuclear tests, which went from atmospheric locations74 to underground locations — in typically isolated places close to coastal environments. 75 Cumulatively, these tests left a radioactive worldwide legacy76 with some island test states, such as the Bikini Atoll of the Marshall Islands and Mururoa and Fangataufa in French Polynesia, retaining a radioactive legacy which may have vast implications for the surrounding coastal ecosystems.77 The global impact of these tests has been supplemented by nuclear accidents. Such accidents have included submarines, satellites,78 and
the disaster that befell the nuclear power plant at Chernobyl which had a direct impact upon the Baltic and Black Seas.79
The final — and greater — threat to the oceans comes from the intentional disposal of nuclear waste into the oceans. The oceans were the original dump for nuclear waste before the 1958 Convention on the High Seas frowned upon the disposal of “high grade” waste at sea.80 This was supplemented by the Antarctic Treaty81 and the oceanic regimes for the Mediterranean, the Baltic, the North-East Atlantic and the South Pacific. Although these regional approaches are important, the primary convention dealing with this subject is the London Dumping Convention (LC). From its inception the dumping of “high level” radioactive material was prohibited. However, the division between grades of radioactive waste meant that some States continued to willfully dispose of “low- level” radioactive waste (94,000 tons into the Atlantic between 1967 and 1982) into the marine environment. Even though this practice has stopped, due to the long life of radioactive material, distinct threats to the marine environment remain (and will remain for decades to come).82 A voluntary moratorium on the dumping of all radioactive waste in the Sea was agreed in 1983, pending a full scientific study of the implications of this type of dumping.83 This moratorium, which was later supported by Agenda 21,84 and formally adopted by the LC in 1993, was objected to by the United Kingdom which refused to change its practices until 1997, when the evidence of radiation pollution in the local marine environment became insurmountable.85
Despite the acceptance by the UK of the general prohibition, other States (such as the Russian Federation) have maintained their objection to the prohibition on the dumping of low-level radioactive liquids. The problem that the Russian Federation presents is not merely contemporary. Since the collapse of the former Soviet Union it has become apparent that this regime was wilfully violating the LC, the International Atomic Energy Agency (IAEA) Guidelines and domestic law by disposing of all grades of nuclear waste into the oceans at a number of
Feb 26: 16–18; YBIEL (1994) 5:182-183; YBIEL (1998) 9: 199.
locations.86 To date, the newly discovered sites in the Kara, Barents, Far Eastern Seas87 and the North-West Pacific Ocean88
VI. POLLUTION FROM SHIPS
The threats from vessels to cetaceans are multiple. These range from unintentional ship strikes, which may threaten the very existence of some critically endangered species,89 through to more insidious problems of pollution. The focus of this section is upon the latter, and the environmental problems that sea vessels may create.
Approximately 600,000 tons of oil enter the oceans each year as a result of normal shipping operations, accidents and illegal discharges each year.90 In the short term, large amounts of oil in restricted spaces may prove lethal to marine life.91 Only 46% of total input of oil into the sea originates from shipping (the majority comes from land based sources)92 and only one fifth of that which
IAEA Bulletin: 11, 14.
originates from vessels, is from accidents. The vast majority is from intentional discharges. Moreover, the amount of oil entering the oceans from accidents is declining (roughly a quarter of what it was in the 1970s). This improvement has been due to increasingly safe vessel designs; 93 enhanced international94 and regional co-operation95 in dealing with oil accidents at sea, and strong supplementing international liability regimes.96
Aside from the intentional acts of environmental destruction in war involving the discharge of oil into the ocean,97 the intentional discharge of oil into the oceans typically derives from the operations of oil tankers carrying out routine operations. The international community first began to address this problem in 1926 before agreeing to the International Convention for the Prevention of Pollution of the Sea by Oil (OILPOL) in 1954.98 OILPOL addresses the problem of the cling- age of oil or “slops”.99
The thrust of OILPOL was relatively simple. The signatories adopted standards of what slops (ie, in terms of oil concentration and overall amounts) could be dumped in “prohibition zones” (typically set distances from coastlines or areas of special significance). To help achieve these goals, design and equipment standards for oil tankers (such as segregated ballast tanks, and improved ways of cling-age washing) were agreed upon and later enhanced in the 1960s, before being supplemented by the 1973 International Convention for the Prevention of Pollution from Ships (MARPOL) in 1973.100 This convention has been regularly updated101 and expanded to cover other coastal threats such as ballast water102
100 International Convention for the Prevention of Pollution from Ships (1973) 12 ILM 1319. 101 Protocol of 1978 Relating to the International Convention for the Prevention of Pollution
from Ships (1978) 17 ILM 1546.
102 IMO Guidelines for Preventing the Introduction of Unwanted Organisms and Pathogens from Ship’s Ballast Waters and Sediment Discharges. IMO, MEPC 50 (31).
and (to a limited degree) sewage from vessels.103 MARPOL is viewed as one of the most successful international environmental treaties and has been credited with reducing pollution by ships worldwide by about 60%.104
In the early 1990s it was estimated that some 6.5 million tons of litter was finding its way into the sea.105 In the past, much of it disintegrated quickly, but resistant substances have replaced many natural, more easily degradable materials. The key, and most problematic, replacement has been plastic which makes up 50– 80% of the rubbish in some oceans.106 This rubbish may have a direct impact upon marine life. For example, one survey discovered that 90% of Hawaiian albatross chicks had plastic pellets (probably mistaken for food) in their digestive tracts. Likewise, cetaceans,107 marine turtles and seals108 are known to have ingested plastic garbage (which itself may be toxic) — because plastic cannot be digested, the results are often fatal.109
Litter enters the marine and coastal environment from multiple sources. In terms of oceanic sources, 150,000 tons of rubbish comes the fishing industry.110 Merchant vessels were disposing of up to 639,000 plastic containers at sea each day in the early 1990s. On a cruise ship carrying 3,000 passengers and crew, more than seven tons of garbage may be generated on a daily basis.111 The need to confront problems such as discarded fishing gear appeared in the mid 1980s with discussions over the conservation of fur seals.112 By the mid 1990s, the necessity to confront the problem was being generally reiterated in international
Colorado Journal of International Environmental Law and Policy 31–60.
policy documents,113 as well as specific Conventions such as CCAMLR which have banned certain fishing materials which would otherwise be disposed of in the ocean.114 In addition, the problem of litter from vessels is primarily dealt with by the MARPOL Agreement115 which provides a comprehensive regime for dealing with garbage at sea and in port on all ships over 400 tons. Notably, the disposal of plastic into the sea is prohibited.116 This MARPOL Annex has been explicitly followed in some fragile marine environments, such as around Antarctica.117
Akin to the controls of garbage and waste coming directly from ships are the controls against the deliberate dumping of rubbish (generated on land) into the seas. The practice of the dumping of plastics and other similar persistent-type wastes, such as netting and ropes, which may float or remain in suspension in the sea in such a manner as to interfere materially with fishing, navigation or other legitimate uses of the sea, was banned by the international community in 1972 with the London Dumping Convention.118 This approach has been mirrored with the regional seas Conventions covering the North-East Atlantic, the Mediterranean, the South Pacific, the Baltic and the Black Sea.
VII. DUMPING LAND GENERATED WASTE INTO THE OCEANS
As the examples show, the dumping of waste generated on land, but disposed of in the oceans is something which deserves attention. Indeed, the disposal of such wastes (with the exception of high-level radioactive waste) into the high seas was a practice that was relatively unregulated until 1972. A strong example of this was the practice of the dumping at sea of unused chemical weapons. This
116 See YBIEL (1998) 9:203.
practice alone involved over 100 incidents between 1945 and 1970.119 This is a remaining problem in a number of oceans.
1. The 1972 London Dumping Convention
Although national governments routinely dumped wastes into the oceans (the first officially designated dump sites were being listed at the end of the nineteenth century) the motivation to regulate the practice was slow in coming to both national and international law. As such, it was not until the early 1970s, with support from international organizations such as the IWC120 and international forums like the 1972 Stockholm Conference on the Human Environment, that a strong global regime was to emerge. The “overall instrument”121 that evolved from the Conference is known as the London Dumping Convention (LC72).122 The LC72 called upon its signatories to “take all practicable steps to prevent the pollution of the sea by the dumping of wastes”.123 The London Dumping Convention did not prohibit all dumping. Rather, the objective was to control it. The dumping of particular substances, such as high-level radioactive waste, was prohibited only if hazardous on grounds of toxicity, persistence, bioaccumulation, and the likelihood of widespread environmental exposure. From such considerations, two Annexes were drawn up, and added to over the years. Annex 1 contains substances of which dumping was absolutely prohibited.
The LC72 has a very successful record in terms of both reducing the wastes dumped into the oceans, and is considered part of customary international law. Although regional agreements are encouraged under the LC72, and a number of regions have their own specific ocean dumping regimes, (such as those covering parts of the Atlantic with the Conventions from Oslo in 1972, the Baltic in 1974, the Mediterranean in 1976, and the South Pacific in 1986) the LC72 represents an overall global minimum on ocean dumping. Moreover, although the LC72 is already a “strong” Convention, it is possible that this will be strengthened to an even greater degree if the proposed 1996 London Dumping Convention (LC96) Protocol124 enters into force. The LC96 is stronger as it is based upon the precautionary principle, and an overall objective to “prevent, reduce and where
YBIEL (1994) 5: 193; YBIEL (1997) 8: 208.
practicable eliminate pollution caused by dumping or incineration at sea”.125 The earlier presumption of LC72 that it was permissible to dump waste unless proven harmful has now been eclipsed.
(a) Limited Success in Confronting Heavy Metal Pollution of the Oceans
Together, the LC72 & LC96 represent a strong example of the success of the international community in addressing the various threats that such ocean dumping of waste generated on land. One of the strongest examples of this success is how the global community has come to terms with the ocean dumping of heavy metals. Heavy metals are those metals which are stable and have a certain density above a set percentage. They are natural constituents of the Earth’s crust, and are essential to multiple life processes. Many heavy metals such as nickel, mercury, zinc, lead, arsenic, copper and chromium end up as an unintended by-product with negative environmental effects.126 Such altered metals are stable and persistent environmental contaminants which are difficult to destroy. Therefore, they tend to accumulate in the soils and sediments. The main anthropogenic sources of heavy metals are various industrial point sources, including present and former mining activities, foundries and smelters, and diffuse sources such as piping, constituents of products, combustion by-products, traffic etc. Relatively volatile heavy metals and those that become attached to airborne particles can be widely dispersed on very large scales. Thus, by addressing any one problem
— such as leaded petrol, lower levels of heavy metals (lead) in ocean surface waters, will typically follow. Heavy metals are also conveyed in aqueous and sedimentary transport (e.g. river run-off) with the result that they enter the normal coastal biogeochemical cycle and are largely retained within near shore and shelf regions. If the concentration of some metals continues unabated, they may become toxic and cause problems — from various forms of cancer through to immune system deficiencies. The detrimental effects that heavy metals can have on nature has been documented since 1958 when mercury poisoning of birds who were eating seeds dressed with a mercury based compound became evident. Similar incidents followed in the coming decade, with human poisonings following the consumption of marine food, detrimentally contaminated with heavy metals. The worst example of this was with the methyl mercury which was generated from an inorganic mercury catalyst used in the manufacture of acetaldehyde and discharged into the sea off Japan and ingested by fish and shellfish. Over 1,500
people consuming the seafood were poisoned (with Minamata disease), and 200 died.127
Despite such clear evidence concerning the problems of heavy metals, both their discharge and impacts continue. Some of the discharges of heavy metal contaminated products are deliberate. Other discharges are accidental (but equally deadly). Many of the discharges are the result of unintended processes (such as lead from leaded gasoline). Whatever the source of the heavy metals, their accumulation in various environments has grown to disturbing levels. This becomes particularly problematic when people consume species with an already unacceptable level of heavy metals. This has already become a problem with the heavy metals of cadmium, mercury and selenium in certain Arctic regions128 and in samples taken from domestically consumed cetacean products in Japan.129 With such considerations in mind, the local inhabitants in some regions have been advised to restrict their intake of certain infected species. This has occurred in relation to fish consumption around the Baltic130 and the Great Lakes.131 With the Faroe Islands, the specific problem of detrimental concentrations of mercury found in pilot whales132 has lead to the Faroese health authorities issuing guidelines (in 1998) to reduce pilot whale meat and blubber consumption, and end the consumption of their livers or kidneys.133
As the above example demonstrates, cetaceans are particularly adept at absorbing heavy metals.134 This specific problem has been evident since the late 1970s, when Japanese studies of heavy metal contaminants in small and toothed (odontocete) marine mammals became evident,135 and were reported to the IWC.136 Soon after, in 1981, the IWC acknowledged the serious threat that increasing levels of heavy metals in the aqueous environment represented to
28. Note, substantial progress has been made in this area overall.
whale stocks.137 In the following twenty years, mercury contamination has also been located in the livers of baleen whales,138 and in 2000 the IWC passed a resolution expressly recognizing the problem of heavy metals.139
Although there is no overall international control on pollution by heavy metals, and only rudimentary regional controls of this problem as a land-based source of pollution, with regard to oceanic dumping, the situation is somewhat different. The focus upon and control of the problem of oceanic pollution by heavy metals began in 1972 when the Stockholm Convention called upon the members to the Conference to control “discharge of ... heavy metal ... wastes [which] may affect even high sea resources.”140 This objective was realized in the LC72 which banned the dumping of Annex 1 waste which includes the mercury and cadmium. Annex II, which only allows dumping with “special care” covered the other notable heavy metals (copper, lead, vanadium, zinc, beryllium, chromium and nickel). The LC96 has all industrial waste (which would encompass all heavy metals except those of an inert nature) in Annex 1. Once the LC96 becomes customary international law, the supplementing regional seas conventions (covering the South Pacific, the Baltic, the North Sea and the Mediterranean) which also deal with oceanic dumping of heavy metals like the LC72 will most probably adopt the same standards.
The problem of heavy metals as a land based source of marine contamination is dealt with in a number of different ways which range from focusing on specific problems, through to more genetic approaches. For example, with the 1995 Agreement on the Conservation of African-Eurasian Migratory Waterbirds,141 the signatories agreed to “endeavour to phase out the use of lead shot for hunting in wetlands by the year 2000.”142 Elsewhere, more generic approaches can be seen by individual countries, such as Denmark, which have attempted to phase- out the use of all products containing heavy metal.143 Such forthright approaches have not been matched in regional and international policies. This is despite a clear recognition by various international forums in the early 1920s that some heavy metals were problematic.144 Despite this long history of concern, the first
139 Resolution on POP’s and Heavy Metals, IWC/52/21/ Agenda Item 14.4.2. 140 Recommendation 48.
generation of regional seas approaches to regulating heavy metals were very generalized. Although commonly acknowledging the problem, regimes (both international and regional) generally lack the specifics of how to respond beyond generalized promises to try to “prevent, reduce, control and eliminate” such contaminants from entering into the oceans. Conversely, the second generation of regional sea conventions around Europe (for the Baltic, the Black Sea, and the North East Atlantic) have gone further than their predecessors by drawing up specific plans for the “reduction and phasing out of substances which are persistent and liable to bio-accumulate arising from land based sources.”145 Heavy metals are within this rubric. Likewise, the 1978 Great Lakes Water Quality Agreement146 contains specific thresholds that the water must not cross in terms of heavy metal contamination.147 Finally, the 1991 Protocol on Environmental Protection to the Antarctic Treaty stipulates that any wastes containing harmful levels of heavy metals that are generated within the Antarctic Treaty area, must be removed from the continent.148
VIII. POLLUTION OF THE OCEAN FROM LAND BASED SOURCES
It is commonly accepted that the vast majority of oceanic pollution comes from land-based sources. The exact figure is probably somewhere between 70 to 80%149 in terms of total causation. Conversely, marine pollution, maritime transport and dumping at sea activities contribute around 10% each. Sewage, industrial waste, and agricultural run-off, by-products from air and atmospheric pollution are all part of this problem. The paradigm for this problem emerged in the late 1960s when it became apparent that the poison from the sea could actually be coming indirectly from the land, not from the oceans. As such, to solve problems like oceanic pollution, controls of the most important sources — such as land based pollution are needed.
The international focus upon the problem of land-based pollution of the marine environment began with the 1972 Stockholm Action Plan, which called upon governments to “strengthen national controls over land-based sources of marine
pollution.”150 However, this call was clearly addressing national controls over such activities, and not necessarily proposing co-ordinated international action. A similar, luke-warm recognition of the problem appeared with the UNCLOS.151 Despite recognition of the problem of land-based pollution of the ocean, the mandate to “endeavor” to create global instruments on this issue was hemmed in by the directive that any such attempt, must take “into account characteristic regional features, including the economic capacity of developing States and their need for economic development”.152 Together, the weak operative word “endeavor” and the basis for negotiations (differentiated responsibility) represented a conclusion that was far from a direct call to action.
Against this background, in 1982, UNEP took the initiative to develop advice to governments on addressing impacts on the marine environment from land- based activities. This initiative resulted in the preparation of the 1985 Montreal Guidelines for the Protection of the Marine Environment Against Pollution from Land Based Sources.153 These guidelines, were particularly soft in that they only gave guidance on control strategies. States were to be individually responsible for the negotiation or adoption of detailed standards. By the early 1990s, as the limitations were becoming obvious, a number of international calls for a strong and dedicated instrument were made in Agenda 21.154 Soon after UNEP was directed to help prepare a Convention on the Protection of Marine Areas from Land Based Pollution. However, progress was evasive, as international preference opted, once more, for a soft, recommendatory (non-legal) type of instrument with broad objectives, primarily under the auspice national and regional considerations (as opposed to international ones) which eventually came out as the 1995 Global Programme of Action for the Protection of the Marine Environment from Land Based Activities (GPA).155 This was revisited in 2001.156
This soft approach (in 1995 & 2001) was because States were generally unwilling to adopt a stronger text during the UNCLOS negotiations. They wished to preserve for themselves as much freedom of action as possible in balancing environmental protection measures against the needs of their own economic interests, from where most of the land-based pollution generated behind sovereign
boundaries.157 Due to the failure of an over-arching, meaningful agreement on this, it is necessary to examine the situation on a problem-by-problem basis. Four strong examples of this can be seen with the problems of coastal habitat destruction, disposing of sewage into the ocean, the problem of not controlling excessive nutrients entering into coastal environments, and the difficulty of land-based rubbish entering into the water. In these problems, the base consideration is the same: they are seen as difficulties that should be primarily resolved within sovereign boundaries, and international standards have little applicability. This is regrettable, as although the origins of the land-based pollution may by clearly sovereign concerns, the implications of such contamination of the oceans ultimately falls upon the international community and those seeking to manage international resources such as whales.
1. Coastal Zones and Habitat Destruction
Coastal zones are valuable in every sense of the word. These are the areas where the upwelling systems collide as the cold, nutrient rich deep water currents run up against continental margins. They are hotbeds for marine biodiversity, filters for marine pollution and epicenters for social and economic wealth. They are also under threat. Currently, two thirds of the world’s largest cities are coastal. More than 2 billion people live within 100km of a coastline.158 The global impact of this problem is such that 34% of the world’s coastal zones are deemed to be at high risk and a further 17% are believed to be at moderate risk. This can be expected to worsen as human population doubles within the next 30 years.
Two examples are particularly strong exemplars of this “development” and its implications on coastal environments. Firstly, mangroves around the world are regressing at an alarming rate — these shrubs and trees of the inter-tidal and super-tidal zones shelter many bird and mammal species, offering nursery and breeding grounds for freshwater and marine life. Despite their importance, the harvesting and destruction of mangroves worldwide is estimated at 1 million hectares per year.159 The second example involves coral reefs. These vital ecosystems play a critical role in fostering the productivity of many oceans.160
Despite their overt importance the world coral reefs are under assault from dozens of anthropogenic influences (from bad fishing practices to global warming).161 The cumulative result of these impacts is that globally, 58% of the world’s reefs are at medium risk from human activities and 27% of these reefs are deemed to be at “high or very high risk.” In some regions, — such as South- East Asia- the percentage of reefs at moderate risk is over 80%; including 55% at high risk.162
The threats that such coastal destructions represent to species which reside or visit such places may be massive. With regard to cetaceans, it has been proposed since the 32nd meeting of the IWC in 1980, that:
necessary measures be taken to preserve the habitat of whales ... [as] ... the survival and health of whale populations is dependent upon [the] maintenance of a health[y] marine and coastal environment.163
In the mid 1990s, the problem of habitat destruction became a particularly focused issue within the IWC as it became apparent that a number of the most threatened species164 were being directly challenged by the destruction of their coastal ecosystems.165 The first instance of this involved the Mexican proposal to expand a commercial salt operation in the El Vizcaino Biosphere Reserve in Baja California.166 This became a direct concern for the IWC167 because the proposal would have involved the destruction of the habitat supporting one of the three main breeding grounds of the North Pacific Gray whale. A second instance involved the introduction by the Mexican Government of a 1996 management plan for the Biosphere Reserve of the Upper Gulf of California and the Colorado River Delta. With this decision, the IWC, while being fully “conscious of the
sovereign rights of Mexico within its coastal waters ... congratulated ... commend[ed] and ... compliment[ed] ... Mexico” on its decision to set up the biosphere reserve, and effectively protect the cetacean within its habitat (which was being threatened by other unsustainable practices within that area — such as driftnetting and incidental catch).168 A similar commendation was forwarded to China two years later for their efforts to protect the Baiji, which is critically threatened by incidental catch, pollution and habitat destruction.169 Habitat destruction has also been identified as a threat for the Indus susu,170 Southern Resident Killer Whales171 and some stocks of Bowhead whales.172 Due to such concerns, in 2000 the Scientific Committee issued a series of general recommendations on freshwater cetaceans,173 which lead to the creation of a workshop on Habitat destruction, and the recognition in a resolution that “habitat degradation and alteration is the primary threat to the survival of freshwater cetaceans.”174 In 2002, the Russian search and exploitation of oil reserves within its Exclusive Economic Zone (EEZ) was believed to threaten, through the highly endangered Western Pacific Grey Whales.175
Such issues as those relating to habitat interference for cetaceans were updated within the IWC in 2001 with the Resolution on the importance of Habitat Protection and Integrated Coastal Zone Management (ICZM).176
ICZM is an idea which is directly linked to controlling the habitat destruction of coastal environs. This recognition has also been mirrored in a larger sense with regard to oceanic law since the early 1990s — when the threat of climatic change generally, and rising seas in particular, began to become apparent. With such broad concerns in mind, atop of problems like general over-fishing, the importance of protecting ocean and coastal habitats was repeatedly noted by the
IWC 53rd Report (2002) 59.
international community in the 1990s.177 The general goal became clearly articulated in the GPA objective which is to:
[s]afeguard the ecosystem function, maintain the integrity and biological diversity of habitats which are of major socio-economic and ecological interest through integrated management of coastal States.178
With such considerations in mind attempts to achieve ICZM management schemes have been attempted by regional seas organizations covering the Black Sea, the Mediterranean, the wider Caribbean and the South Pacific. With regard to specifics, the regional examples of directives seeking the protection of habitats of marine life can be seen in 1990 with the Agreement on the Conservation of Seals in the Wadden Sea,179 the 1996 ACCOBAMS Agreement,180 and the Turtle Agreements which cover sections of the Americas,181 the Atlantic Coast of Africa,182 the Mediterranean,183 South East Asia184 and the Caribbean Coast of Costa Rica, Nicaragua and Panama.185
Coastal habitat protection has also been advocated within the Convention on Wetlands (RAMSAR).186 Their 1996 Recommendation, calling for Strategic Management in Coastal Zones largely mirrored the work being undertaken in the Convention on Biological Diversity (CBD). It is with this latter forum that the
4:250–251; YBIEL (1994) 5: 252; YBIEL (1997) 8: 288; FAO Code of Conduct, paragraph 6.8.
IV.2.d. & Annex II. This is reprinted in (1998) 1 Journal of International Wildlife Law and Policy 179–202.
This is available from <http://www.oceanlaw.net/texts/medturtles.htm> .
most constructive progress on ICZM has been made. This has been evinced in the 1995 (Jakarta) Mandate187 which stipulated that ICZM is the most effective way to implement the CBD with respect to the conservation and sustainable use of marine biodiversity.188 However, despite the clear acceptance of this broad goal by both the CBD and the international community, the distinct position of sovereign limitation was clearly noted in the Annex to the original Jakarta Mandate. That is, the obligations are only to be considered, within a sovereign context, “where appropriate and practical.”189 As such, ICZM is not something with ultimate recourse to the international community. The same prognosis exists with high profile coastal destruction focuses such as coral reefs. Thus, although some are world heritage sites,190 and a number of international “initiatives” have been created,191 the strongest action has been the (Non Binding) Call to Action and a (Non Binding) Global Framework for Action.192
The difficulty here lies in the fact that all of these mechanisms, while recognizing the problem, clearly place the responsibility of solving it at the feet of sovereign governments. This, of course, is in complete accordance with international law generally, and international environmental law in particular. Indeed, as the first part of article 193 of the UNCLOS makes clear. “States have the sovereign right to exploit their natural resources pursuant to their environmental policies” This is problematic given that sovereign concerns, often myopically focused, place environmental concerns for coastal protection as clearly secondary considerations. As such, a clear tension exists with the second part of Article 193
192 See YBIEL (1995) 6: 330.
which places the limit on the sovereign right to be carried out also “in accordance with their duty to protect and preserve the marine environment.” The limits of this approach are clearly evident in the following examples of litter, nutrients and sewage.
It is estimated that 80% of persistent wastes found in the ocean or the coastal environment originate from land.193 Despite land-based sources being the primary source of causation for this problem, there is only one (regionalized) international law (for Antarctica) which attempts to confront this problem by mandating that all waste must be carefully controlled (and largely removed from the Continent).194 Outside of the Antarctic regime few organizations have directed mandates on the control of the unintentional disposal (in terms of unapproved by the State) of litter, although a few regions have clear restrictions on the intentional disposal of municipal garbage into the ocean.195 As such, control of litter falls within the general hopes of better waste control mechanisms, recycling and institutional prohibitions against such practices. It is fundamentally a problem dealt with by individual countries — not the international community. Accordingly, at best, the general hope as manifested in Agenda 21 is for the adequate and complete waste disposal services for all urban communities by 2025.196 This goal was slightly enlarged by GPA, which hoped that its signatories will come to establish controlled and environmentally sound facilities for receiving, collecting, handling and disposing of litter from coastal areas.197
To be fertile, is to be fruitful, or to produce an abundance. To fertilize something, is to make the thing, such as soil or animals, fertile. In terms of agriculture, the primary fertilizer is nitrogen and phosphate. On a global basis, the use of nitrogen for agriculture grew more than fivefold from 1960, to more than 210 million metric tons per year by 2000. Too much nitrogen and phosphorous can overwhelm the natural nitrogen cycle and overflow into the waterways. Once there, excess nitrogen when combined with phosphorous or combined with additional factors like warmer water and unique species (sometimes via bioinvasions), can help stimulate the growth of algae and other aquatic plants. As such, the algae “blooms” may appear. To this point, the process may be regarded as “eutrophic”, which literally means “nourishing well”. However, when the process begins to turn bad, it becomes a problem of eutrophication, which in terms of current usage means that the aquatic environment (which is rich in phosphates, nitrates and other nutrients that promote the growth of algae) suddenly
de-oxygenates the water by the mass subsequent decomposition of the mass of organic matter. In the process of de-oxygenisation, the ecosystem (which may cover thousands of kilometres) changes and may have overtly detrimental effects on certain species — including whales198 — which inhabit the ecosystem or the humans who feed from them.199 This has been a particular problem with restricted flow seas such as the Baltic, Black and Mediterranean.200
Although attempts to control the discharge of effluents from agriculture (in such quantities as were liable to be injurious to fishing) date back to 1880,201 the modern recognition of the problem of eutrophication did not become recognised until the early 1990s when agricultural run-off and sewage were deemed the most urgent problems in terms of overall oceanic pollution.202 By 2000 UNEP was arguing that nitrogen pollution was one of the major forthcoming challenges in the new century.203 Despite this recognition, only soft goals and targets to confront this problem have been advocated in the international context in Agenda 21204 and the GPA.205 However, in some regional situations where the problem is particularly pronounced, such as with the Great Lakes,206 the Baltic,207 the Black Sea,208 and the North-East Atlantic,209 nutrient load targets have been set, although in most of these seas the results have been questionable.
The final problematic area in which the State has a largely unfettered discretion to protect its coastal environment is with sewage. Sewage is everything that goes down the drain, sink and toilet. Broadly, there is industrial and municipal sewage. The focus here is upon municipal, as it is typically this category that ends up in the oceans, and it is deemed one of the most urgent oceanic problems210 which presents overt threats to both humans and other species which utilize the
207 See Annex 1.1(2), YBIEL (1998) 9:200–201.
208 YBIEL (1995) 6:247-248; YBIEL (1997) 8: 198.
209 Annex 1, Article 3, YBIEL (1995) 6:246–247; YBIEL (1998) 9: 199.
210 GESAMP, supra note 92 at 27.
oceans, including whales.211 Although it can come to represent an overt threat, aside the Antarctica regime (which has a detailed regime for sewage treatment before release into the ocean)212 the international response has been with weak goals within Agenda 21,213 (50% of all sewage from industrialized countries going into the oceans should be treated by 2005) and the GPA (disposal of all sewage by 2025 should be in accordance with national or international standards).214
On a regional level, early attempts to control the “discharge of noxious sewage” into commonly shared waters date back to 1925.215 Despite this early start, and the fact that a number of regional conventions recognize that sewage must be adequately treated before being discharged into the oceans,216 there is far from a consistent approach on this matter. The lack of hard standards is because the treatment of raw sewage is a matter of sovereign choice and responsibility. As a result, although the WHO provides recommended values for sanitation, countries do not always meet these standards. This problem is often particularly acute in poorer countries217 although it is by no means restricted to them. For example, around the coastline of the United Kingdom it is estimated that around 300 million gallons of raw or partly treated sewage are discharged into the ocean every day.218
Even if sewage is treated by a primary method and the solids are removed (and the remaining liquid can go on to further treatment) the solid component — the sludge — still has to be dealt with. The dumping of sewage sludge into the oceans is one particular problem that the international community has steered clear away from. Although there is, as Agenda 21 suggested, “scope for improvement in this area”219 only with the North East Atlantic is there a
presumption that this practice will be stopped.220 Elsewhere, no such presumption exists (unless the sludge contains prohibited elements). This presumption is also mirrored in the international standards set by the LCD, whereby the dumping of sewage sludge is prima facie acceptable.221 This approach is problematic, for it means that the ocean can still be used as a dump for the 16 million tons of sewage sludge that the Philippines, the Republic of Korea and Japan continue to dump each year.222
IX. POLLUTION OF THE OCEAN FROM LAND BASED SOURCES: INTERNATIONAL RESPONSES VIA
In contrast to the last section, whereby the threats to oceans from land-based sources are dealt with via primarily sovereign or regional responses, the final section of this article focuses upon land-based pollution of the marine environment which is being dealt with via primarily international responses. However, it is important to realize that these international responses are only incidentally focused on the protection of the ocean. Moreover, the successes of the international approaches to rivers, POPs, climate change and ozone depletion have met with limited success.
An estimated 44% of the total marine pollution (around 59% of all land-based marine pollution) flows down rivers into tidal estuaries, where it bleeds out to sea. Rivers, which are often polluted by every country that they pass through, eventually carry out to the oceans everything dumped into them. For example, with the Danube which flows into the Black Sea, each year 60 tons of mercury, 240 tons of cadmium, 4000 tons of lead, 900 tons of chrome, 50,000 tons of oil, 60,000 tons of phosphorous, and 340,000 tons of nitrogen are deposited.223 In other places, the rivers which eventually lead to the sea are so badly polluted that they fail to meet water standards for agriculture, industry or fishery uses, let
alone human consumption. This is a particular problem in regions such as China and the former Soviet Union.224 It was due to this type of problem that Article 23 of the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses225 stipulated watercourse states shall individually and co-operatively “take all measures with respect to an international watercourse that are necessary to protect and preserve the marine environment.” Despite this laudatory goal, the success of the objective has been torn between multiple other debates over the equitable utilization of fresh water courses, of which conservation is just one aspect.226 As such, the obligation remains a general one to take all appropriate measures to prevent the causing of significant harm to other watercourse States.227
These general principles not to pollute rivers with international dimensions are mirrored in a number of regional agreements on river co-operation.228 Despite the growth in these new agreements, very few of them contain any specifications on the amounts of pollutants that may enter into the rivers, let alone eventually flow out into the oceans. The exception to this general trend are those within Europe,229 with specific prohibitions that are enforced being contained within
107. For the suggested mechanisms to achieve this, see Article 21 (a),(b) & (c).
individual treaties for the Danube,230 Oder231 and the Rhine.232 Likewise, the waterways shared by the United States and Canada are dealt with on the principle that the parties will work towards the elimination within the waterways of the certain listed critical pollutants.233
2. Persistent Organic Pollutants (POPs)
Persistent organic pollutants may enter the marine environment through either direct dumping into the oceans or through inadvertent release from land-based pollution. With regard to dumping, the regional conventions, like the LCD234 all contain prohibitions against the dumping of wastes which are toxic, persistent or bioaccumulate.235 Carcinogenic, teratogenic or mutagenic are other considerations also often taken into account.236 With such considerations in mind, the dumping of organo-halogen and organo-silicon was prohibited in all three regional dumping conventions.237 Organo-phosphorous (in the Mediterranean and South Pacific) and organo tin (in the Mediterranean) are also prohibited. For these Conventions, any pesticides not listed on Annex I were automatically placed on Annex II. In regard to the problem of POPs as land-based sources of pollution, some regional treaties (such as the 1983 Quito Protocol for the Protection of the South East Pacific Against Pollution from Land-Based Sources)238 have begun to take soft
considerations of such concerns whereby the signatories have promised to endeavor to prevent, reduce and eliminate such POPs. At least five other regional Conventions, dealing with the North-East Atlantic,239 the Baltic Sea,240 the Black Sea,241 the Mediterranean,242 and the boundary waters between Canada and the United States,243 have all taken a more forthright approach and have called for direct restrictions on the amounts of POPs entering the oceans.
Although these initiatives are to be applauded, the real progress in this area has been through the Conventions dedicated to removing POPs in totem, and not just in regard to their impact on the marine environment. The necessity to phase out POPs within a meaningful international treaty took over thirty years to evolve.244 This was despite the objective receiving mention (amongst other concerns) in UNCLOS,245 Agenda 21,246 RAMSAR,247 a European Agreement on Bats248 and the GPA.249
After years of indirectly addressing the problems of POPs in inter-related forums, success finally became apparent at the international level with the specific case of TBT, and the Stockholm POPs convention. TBT/ tributyltin is the organic form of tin which is used in most of the world’s marine paints and has been linked to dead cetaceans.250 Due to its overt toxicity251 and given that alternatives exist (which unfortunately also present problems)252 TBT has been the subject limited controls (ie, it cannot be used on boats underneath a certain size) in certain countries since the 1980s. By 1990, the IMO was considering the issue, and
239 OSPAR, Annex 1, Article 3. YBIEL (1992) 3: 252; YBIEL (1994) 5: 182; YBIEL (1995) 6: 246;
YBIEL (1996) 7: 147; YBIEL (1998) 9: 199.
242 Athens Protocol. YBIEL (1993) 4:156; YBIEL (1996) 7:226–227.
YBIEL. (1992) 3: 236–237; YBIEL (1997) 8: 187.
January 14: 7.
what began as recommendations against its use in the 1990s253 ended up as Directives in the new century, by which its usage should have ended by 2003.254 The success in controlling the TBT POP has been mirrored in more generic POP Conventions. This began with the success of 1998 (European) Aarhus Protocol (which bans 8 POPs and tightly restricts 4 others).255 This was followed with the truly international 2001 Stockholm Convention on Persistent Organic Pollutants.256 Although this should be strongly welcomed, the Convention remains limited by the fact that of the so called “dirty dozen” of POPs, only 3 will be totally eliminated. A further five shall be eliminated, subject to country-specific exemptions. Questions over existing POPs in use, exemptions for developing countries, and financial assistance for developing countries, may also limit the
effectiveness of this Convention.257
When the POP process is viewed from the perspective of the IWC, the limits of the organization in the face of this manifest threat become apparent. That is, although the pollution of cetaceans by POPs has been a specific concern since 1981, where the “serious threat to whale stocks” caused by increasing levels PCBs and other organo-chlorines detected in cetaceans was noted,258 there was ultimately very little they could do about the problem. As such, their response has been to both study the problem (as noted above) and to encourage the international community to successfully address this problem.259 Accordingly, from the mid 1990s, they have called upon all IWC contracting governments to individually control their POPs which end up in the marine environment,260 and collectively, it has supported the ideal of as many countries as possible joining the Stockholm POPs convention as there is a “mutual interest in supporting the ratification of the Protocol.” Accordingly, the IWC called upon all of its members to sign and ratify this protocol “as soon as possible.”261 This was reiterated in 2001.262
253 See YBIEL (1997) 8: 203.
254 See IMO Briefing 9 (1999); Marine Environment Protection Committee — 43rd Session, Requests Anti-Fouling Systems Conference in 2000–2001.
255 (1998)37 ILM 505, Article 3(5); YBIEL (1998) 9: 272–273.
and Whale Stocks. IWC 46th Report (1996) 47.
3. Climatic Change
The third report by the Intergovernmental Panel on Climate Change (IPCC) in 2001263 confirmed their earlier reports with the suggestion that not only is climatic change underway, but that its implications may be massive. Specifically, they suggested that the average temperature increases may be as high as 5.8.ÚC.264 Accompanying the temperature increases will be rises in sea levels of between
0.09 to 0.88 meters between 1990 and 2100. Aside the overt effects that this will have on human populations is the impacts this will have upon ecosystems in general, and for the purpose of this chapter, oceans in particular.265
The oceans, which sequest and store large amounts of carbon land-based reserves, retain heat storage (and control thermal inertia). The oceans are described as the flywheel of the climate system because of these capacities which incidents like the El Nino phenomena are prominent manifestations.266 Although the biological consequences of a changing climate upon the ocean are far from being fully understood, it is believed that the change will bring detrimental results by raising the temperatures of the oceans and increasing sea levels. This will probably change migratory patterns for ocean species,267 facilitate habitat destruction (especially in critical areas for whales like around the North and South poles)268 and may lead to drastic changes in ocean circulation, vertical mixing and overall climatic stability.269 Such effects could have strong implications in terms of nutrient availability, biological productivity, and the structure and functions of marine ecosystems, from the bottom to the top of the food chain for the ecosystems most critically affected.270
When combined with other factors, such as an already unfavourable conservation status, climate change may be one of the final factors in leading to ultimate decline for many species. This problem has already been linked to oceanic concerns with the decline of some oceanic species,271 and whales in particular. The impact on whales will probably come from changing food sources, changed
migration patterns and habitat destruction. Upon the species which are already endangered, the effects may be final.272 This conclusion was reached within the IWC in 1995273 and 1996.274 While research on this problem is ongoing, the primary (and only) response of the IWC275 to this problem has, as with the POPs problem, been to urge its member governments to join international efforts to reduce greenhouse gas emissions.276
Although this “urging” is probably the only option available to the IWC, it is reflective of the unfortunate situation of the international community not adequately confronting the problem of climatic change. In a nutshell, the IPCC have been informing the international community since 1992 that at least a 60% reduction in carbon dioxide emissions (the main greenhouse gas) is required just to stabilize its build-up in the atmosphere. However, the ultimate response of the international community to this target, as formulated in the Kyoto Protocol277 is a 5% reduction by the industrialized countries of what their greenhouse gas emissions were in 1990.278 Unfortunately, even this small target, which only applies to the industrialized world, has run into intense difficulties as the Kyoto Protocol collapsed in 2000,279 and has struggled to rebuild itself without the United States, with an even lower reduction rate of only 2–3%. In this arena, quite simply, the international community is manifestly failing to adequately address the problem.
W. (eds)., Climate Change in the South Pacific: Impacts and Responses in Australia, New Zealand and Small Island States (1999); Gillespie, A., “Sinks, Biodiversity and Forests: Inter-Linkages With Other Environmental Multilateral Agreements and Instruments” In Chambers, B. (ed)., Global Climate Governance: Inter-Linkages Between the Kyoto Protocol and Other Multilateral Regimes (1999) 117–139.
4. The Ozone Layer
All life on Earth depends on the ozone layer. It is this thin layer of gas found largely in the upper atmosphere that protects the planet from the devastating consequences of ultra-violet radiation. However, anthropogenic activities have caused the ozone layer, at both the North and South Pole, to be considerably thinned.280 This thinning of the ozone layer has resulted in many detrimental effects on both the species and ecosystems below it. With regard to the effects on aquatic ecosystems, evidence suggests that phytoplankton — a crucial part of ocean and freshwater ecosystems — will have their growth and reproduction detrimentally affected. Phytoplankton ecosytems in polar areas are a particular concern. Although long term effects are uncertain, short term effects show a 4– 23% reduction in productivity was measured under the ozone hole.281 In addition, increased intensity of UV-B radiation also damages the larval development of some crabs, shrimp and fish. In turn, this may add an extra detrimental impact on the world’s fish stocks.282
These indirect links of a disrupted food chain for cetaceans283 are supplemented by a final direct link to ozone damage, which suggests that some cetacean species with low skin pigmentation living in areas subject to ozone depletion may be particularly at risk Increased exposure to UV-B may have short-term affects upon cetaceans by impacting vision, immune response, reproductive success and disease occurrence.284 The long terms effects of increased UV-B are unknown.
The IWC’s response to this problem, has been akin to that of the problem of climatic change — to urge its signatories to abide by the relevant international conventions. However, unlike the area of climate change, the problem of ozone depletion has been much more successfully dealt with by the international community — with the Vienna Convention for the Preservation of the Ozone Layer, the following Montreal Protocol and five further amendments to the Protocol.285 With this regime it can be suggested that impressive achievements
285 All of these treaties may be found in Ozone Secretariat/UNEP, Handbook for the International Treaties for the Protection of the Ozone Layer (5th edition, 2000).
have been made, and although a number of areas still require attention, overall the international community has a clear success story in the protection of the ozone layer and towards the end of the next century, the ozone layer should have repaired itself.
Historically, the greatest threat to cetaceans was over-harvesting. In the future they will face additional threats via anthropogenic environmental change. The IWC has been aware of this risk since the mid 1970s, although the recognized types of risks has expanded each decade. These threats will be less visible than traditional threats, but ultimately, they may be just as deadly as the oceans become increasingly at risk and the international community struggles to come to terms with these risks in a multitude of other indirectly related forums. As such, two questions are manifest. Firstly, what are the threats to the oceans and the species within them, and, secondly, how well does the international community currently protect the oceans?
Although there is a general obligation in international law not to pollute the oceans, there is no single codified document specifying exactly how to do this. Rather, each pollution source is the subject of a different regime. Some of these are successful, and some are not. For example, with regard to the threat of nuclear pollution, nuclear accidents, nuclear tests and the dumping of nuclear waste (both openly and secretly) into the oceans have already left a discernable impact, which although being confronted by the international community, appears to be an emerging threat (due more to past incidents than future). Conversely, the threat of pollution from ships, in terms of oil (both accidental and deliberate discharges) and litter appears to be making clear progress in standards. Likewise, the disposal of most forms of waste into the oceans in general via the London Dumping Convention, is clearly an improving situation, although loopholes exist through which a number of other forms of supposedly non-toxic materials will continue to be dumped. Unfortunately, these successes are being offset in the failure of the international community to come to terms with the threat of land- based pollution of the marine environment, which has been deemed to fall under sovereign control. As such, only the softest of targets are considered by the international community, and problems such as the destruction of coastal habitats, litter from land-based sources, sewage and nutrient overloads represent increasing problems, of which there is limited international response, despite clear regional and international impacts. Conversely, the international community has taken a direct interest in the areas of climate change, ozone depletion, river pollution and POPs. Although the international response to ozone depletion has been successful, and the POPs convention shows promise, the international community is clearly
failing with regard to adequately dealing with climatic change, and its response to rivers suffers from a lack of specific commitments at both the general and specific levels.
In sum, the world’s oceans are under threat from multiple sources of pollution. Some are being adequately confronted, and some are not. The implications for the oceans and the whales that inhabit them can only be guessed at. The implications for the IWC, however, are much clearer in that the IWC must increasingly be active in related forums (as it has begun to be) as the ultimate conservation of cetaceans may be decided elsewhere, not within traditional whaling debates.