New Zealand Journal of Environmental Law
Last Updated: 19 January 2023
The Global Programme of Action for the Protection of the Marine Environment
from Land-based Activities
In this article, the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (GPA) is evaluated. The article starts with an overview of the developments in international environmental law which led to the inception of the GPA. It points out the challenges presenting themselves when dealing with protection of the marine environment from land-based activities, such as the question of a global versus regional approach and hard versus soft law. In this respect, the role of customary international law is briefly evaluated. Next, the article examines the structure and content of the GPA, its funding and the state of its worldwide implementation, as well as the role of the United Nations Environment Programme (UNEP) with regard to the GPA. This examination is followed by an analysis of the GPA implementation on a national level. Countries are expected to develop their own National Programmes of Action (NPAs) to implement the GPA. Two countries are compared with regard to the development of their NPAs. To show the difference in challenges faced when implementing the GPA, the comparison is drawn between two countries at a different developmental stage. As an example of a developing country, Bangladesh is compared to Australia, an example of a developed country. The approach taken by Bangladesh in the development of its NPA is compared to the guidelines published by
*The author is currently finishing her studies towards an LLM specialising in International Law at the University of Auckland. She finished her Bachelor and Master of Laws degrees at the University of Basel, Switzerland, in 2009. This article was submitted as a paper for the course Protection of the Marine Environment held by Professor Thomas J Schoenbaum at the University of Auckland in 2013.
UNEP with regard to GPA implementation. Since the evaluation of Bangladesh’s NPA points to poverty as a major hindering factor in environmental protection and implementation of the GPA, the concept of Common but Differentiated Responsibilities (CBDR) is briefly evaluated. After looking at Australia’s NPA, an overall assessment of the GPA is undertaken, pointing out the specific challenges regarding its implementation and suggesting possible solutions. The article ends with an overall conclusion listing the lack of binding compliance mechanisms as well as lack of funding in developing countries as the most serious challenges to successful GPA implementation.
Landbased activities and sources are responsible for the largest part of marine pollution nowadays.1 Still, this kind of pollution has only recently become a concern for the global community and regulation is currently predominantly based on a soft law approach. This is in part due to the heterogeneous character of the problem with a multitude of contaminants and factors influencing pollution. Nevertheless, this is a problem of both developing and developed states which in turn have to take all measures available to them to tackle this serious issue. One important instrument offering guidance to states is the Global Programme of Action for the Protection of the Marine Environment from Land based Activities. This programme is intended to direct national activities with regard to marine pollution from landbased sources. Its implementation in different countries offers valuable insights into the success and challenges on an international level of protecting the marine environment from pollution by landbased sources.
1 The term “source” is used predominantly in this article. It denotes both actual sources of harmful substances, as well as human activities which result in degradation of the marine environment; see Daud Hassan Protecting the Marine Environment from Land-Based Sources of Pollution: Towards Effective International Cooperation (Ashgate, Aldershot, 2006) at 15.
2. THE DEVELOPMENT OF THE PROTECTON OF THE MARINE ENVIRONMENT FROM LAND-BASED
SOURCES OF POLLUTION
2.1 The Global Programme of Action for the Protection of the Marine Environment from Land-based Activities
The Global Programme of Action for the Protection of the Marine Environment from Landbased Activities (GPA) was adopted at a conference held in Washington from 23 October to 3 November 1995 (Washington Conference).2 Besides the GPA, the conference also adopted the Washington Declaration on Protection of the Marine Environment from Landbased Activities (Washington Declaration).3 The Washington Declaration expressed the intention of the community of states participating in the Washington Conference to protect the marine environment from pollution by landbased activities by implementing the GPA. The Washington Conference had been convened in reaction to chapter 17 of Agenda 21, “the ‘Sustainable Development Agenda’ for the 21st century”,4 adopted at the United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro from 3 to 14 June 1992.5 UNCED was the second global conference on environmental issues since the Stockholm Conference in 1974.6 Agenda 21 was set up as “a comprehensive global action plan intended to provide a framework for the achievement of a sound, healthy and sustainable world environment”.7
It was stated in Agenda 21 that “[l]andbased sources contribute 70 per cent of marine pollution” but that “[t]here is currently no global scheme to address marine pollution from landbased sources”.8 To resolve this glaring contradiction, it was stated in Agenda 21 that “[t]he UNEP Governing Council
<www.sustainabledevelopment.un.org>; Agenda 21 contained in Report of the United Nations Conference on Environment and Development A/CONF.151/26 (Vols I–III), also available at <www.sustainabledevelopment.un.org> [Agenda 21].
is invited to convene, as soon as practicable, an intergovernmental meeting on protection of the marine environment from landbased activities”.9 The following adoption of the GPA by 108 states and the European Commission at the Washington Conference “reflects the resolve of States to address the serious impacts of landbased sources of pollution and physical degradation of the coastal and marine environments”.10
2.2 Developments in International Environmental Protection
The scope of the problem posed by marine pollution from landbased sources is very large; still, action on a global level has been slow:11
Degradation of the marine environment by landbased activities poses one of the most serious threats to the quality and productivity of the marine and coastal environment. Yet this has been one of the last substantive global environmental issues to be addressed.
This inactivity might be explained by a general lack of interest shown by the global community towards environmental issues until the 1970s. Concern about the state of the environment is a relatively new issue in the international forum. It was only after the Second World War that the protection of the environment came into the focus of the global community.12 Earlier, protection of the environment per se had not been the explicit subject of international treaties but could merely result as a side effect of treaties preoccupied with regulating environmental resources for the benefit of their utilisation.13 After the Second World War and up to the early 1970s, international lawmaking with regard to the environment was also dominated by the aim to conserve the environment for the sake of resource utilisation.14 However, a change in attitude was under way and this period “also marks the entry of genuine conservation ethics on the treaty agenda, reflecting new concerns of the international community for common natural heritage and the prevention of global risks”.15 This was
13 At 4–5.
14 At 4–5.
15 Peter H Sand “The Evolution of International Environmental Law” in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds) The Oxford Handbook of International Environmental Law (Oxford University Press, Oxford, 2008) at 4–5.
evident in an array of treaties concluded in this time until the 1970s. It was also during this period that some important international decisions with regard to environmental issues were awarded — for example, in the socalled Trail Smelter case.16
Still, the advent of the environmental protection movement as it is known today, and what is sometimes also referred to as “modern international environmental law”,17 only came in 1972 with the first United Nations Conference on the Human Environment held in Stockholm, the socalled Stockholm Conference.18 At this point, an attitude change with regard to the environment had been taking place, caused in part by ecological disasters occurring at the time and in part by “growing public awareness of the ‘world ecocrisis’”.19 The conference had been convened pursuant to Resolution 2398 of the United Nations General Assembly and was designed to be “a high ranking, central forum for treating environmental problems as a whole and for discussing options for coping with them in a coordinated, effective manner”.20 As a result of the Stockholm Conference, the Stockholm Declaration was adopted.21 Also a result of the Stockholm Conference was the establishment of the United Nations Environment Programme (UNEP), which constituted the first institution of the United Nations primarily occupied with the protection of the environment.22 The period after the Stockholm Conference saw a surge in international environmental agreements.23 Before the second large international conference on the environment, the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro in 1992, more than one hundred international environmental agreements were concluded.24 UNCED brought about several new environmental protection instruments and action plans. Also, UNCED made the concept of “sustainable development” “a widely accepted benchmark in international environment and development relations”.25 Sustainable development as a concept joins development with environmental protection. The term sustainable stands for environmental
25 At 14.
protection.26 Therefore, to be sustainable, development must encompass environmental protection.27 This concept has become very important with regard to environmental agreements and it has been included in nearly all environmental instruments agreed on since UNCED.28
2.3 Protection of the Marine Environment in International Environmental Law
International conventions concerned with marine pollution began to appear in the second half of the 20th century.29 However, in the beginning, the focus was primarily on oil pollution by ships.30 The issue of marine pollution by land based sources only gained attention from the 1960s.31
Then, marine pollution from landbased sources was first tackled on a regional basis. A start was the Convention for the Prevention of Marine Pollution from Landbased Sources (Paris Convention).32 This convention dealt with the protection of the marine environment in the NorthEast Atlantic;33 it was later combined with the Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft (Oslo Convention) to build the “OSPAR Convention”, the Convention for the Protection of the Marine Environment of the NorthEast Atlantic.34 The Paris Convention was the first convention to specifically address the issue of land-based sources of marine pollution.35 Other conventions were agreed in this period which also included provisions regarding landbased sources of pollution.36 More important, though, was the fact that UNEP focused on the oceans as one of its priority areas and developed its Regional Seas Programme.37
26 At 76.
27 At 77.
28 At 74.
31 At 3–4.
36 At 3–4.
37 At 124.
The Regional Seas Programme of UNEP was started in 1974.38 It is designed to:39
... address the accelerating degradation of the world’s oceans and coastal areas through the sustainable management and use of the marine and coastal environment, by engaging neighbouring countries in comprehensive and specific actions to protect their shared marine environment.
This aim is achieved by the agreement of binding conventions which lay out the framework for a regional action plan. There are 13 Regional Seas Programmes established with the help of UNEP worldwide with 143 countries participating.40 Five programmes were developed independently from UNEP.41 Landbased sources, besides other sources of pollution, are addressed in the conventions in quite a broad manner.42 Detailed provisions are usually contained in protocols accompanying the regional conventions.43 Also an important part of the Regional Seas Programmes are the regional action plans which are developed by the regional programmes.44 They are tailored to the specificities of the region in question and include provisions regarding the assessment of the region with a view to environmental, social, economic and legislative aspects.45 The Regional Seas Programme has shifted its focus over the years from the deep ocean to the coastal area, which is especially at risk from pollution. In this respect, the Regional Seas Programme now counts land based sources of pollution as one of its key issues and it plays an important role in the implementation of the GPA.46
38 At 124.
46 At 444–445.
Since the inception of the Regional Seas Programme by UNEP, marine pollution from landbased sources had come into the focus of the global community. Nevertheless, the United Nations Convention on the Law of the Sea (UNCLOS) adopted in 1982 contained few articles with regard to landbased sources of pollution.47 UNCLOS “provides a comprehensive legal framework for use and development of the oceans and their resources”.48 However, it provides little guidance on the prevention of marine pollution from landbased sources. The relevant articles in question are arts 194, 207 and 213.49
While art 194 puts an obligation on states to take all measures necessary to prevent, reduce and control pollution of the marine environment and specifically mentions land-based sources as an origin of pollution,50 art 207 asks states to adopt laws and regulations regarding pollution from landbased sources and to establish global and regional rules with regard to landbased sources of pollution.51 Art 213 then puts an obligation on states to enforce the laws adopted according to art 207.52
As can be seen, these regulations are not very specific regarding what actions need to be undertaken to prevent pollution, a fact which has been criticised. For example, it was stated that “[t]he Convention does not go into detail, set international standards or resolve relevant questions in relation to marine environmental protection from [landbased sources of pollution]”.53 Also, there was the opinion expressed that “these provisions are so general that further specification would be required”.54
The provisions in UNCLOS are indeed very wide. Surprisingly, even though the issue of marine pollution by landbased sources is included in UNCLOS, the provisions do not contain a definition as to what constitutes land-based sources of marine pollution or which are the major contaminants with regard to landbased sources of pollution.55 However, this lack of specificity might be explained by the fact that at the time of negotiation of Part XII of UNCLOS,
52 Art 213.
there was no specific scientific data available concerning the contaminants and activities responsible for marine degradation. The first relevant report on the status of the oceans, which was prepared by the Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP), was only made available after Part XII had already been negotiated.56
Due to its lack of detail, UNCLOS can only be seen as a framework with regard to protection from pollution by landbased sources.57 This is in line with the overall purpose of UNCLOS, which “was conceived, since its inception, to serve as a comprehensive legal framework of general rules”;58 consequently, UNCLOS is often also labelled the “constitution for the oceans”.59 This umbrella approach was also followed in the area regarding protection of the marine environment, which is regulated in Part XII of UNCLOS.60 The expectation was that subsequent treaties and agreements would flesh out the basic provisions contained in Part XII of UNCLOS.61
For example, article 207(4) UNCLOS expects states “to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution of the marine environment from land based sources”.62 When it came to decide on a fitting instrument:63
... the general view was that a fully-fledged legal instrument was not feasible immediately. Rather, the idea was to develop a less formal instrument as a first step and build on that in stages.
In consequence, the Montreal Guidelines were drafted by a working group under the auspices of the United Nations Environment Programme.64 They offered a recommendatory set of provisions intended to guide governments in protecting their marine environment from landbased pollution.65 It was the first
Development: Past Achievements and Future Challenges (Oxford University Press, Oxford, 1999) at 281.
56 At 280–281.
61 At 301.
64 At 302.
65 Montreal Guidelines for the Protection of the Marine Environment against Pollution from Landbased Sources (Decision 13/18/II of the Governing Council of UNEP, of 24 May 1985) <www.pnuma.org> at introduction [Montreal Guidelines].
time that the problem of landbased sources of marine pollution was dealt with on a global basis and in a holistic manner, encompassing scientific, technical, legal and administrative aspects of the problem.66
Still, the success of the Montreal Guidelines has been described as “limited”, with one of the main issues being the lack of implementation of the guidelines on the part of the states.67 However, it is worth remembering in this respect that the Montreal Guidelines were drafted with a view to support the creation of a possible future global convention and “were never intended to be the last word on the issue”.68
At this point, it is necessary to have a closer look at the meaning of the terms “marine pollution” and “land-based sources”. While there is no definition of land-based sources offered, marine pollution has been defined in art 1 UNCLOS as follows:69
(4) “pollution of the marine environment” means the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities;
A similar definition has also been taken on by the Montreal Guidelines.70 As noted, UNCLOS does not offer any definition of land-based sources; however, the Montreal Guidelines offer a useful definition, of which especially para 1.(b)(i) is relevant, which deals with landbased sources as opposed to offshore sources under national jurisdiction:71
(b) “Landbased sources” means:(i) Municipal, industrial or agricultural sources, both fixed and mobile, on land, discharges from which reach the marine environment, in particular:
- From the coast, including from outfalls discharging directly into the marine environment and through runoff;
68 At 209.
(ii) Sources of marine pollution from activities conducted on offshore fixed or mobile facilities within the limits of national jurisdiction, save to the extent that these sources are governed by appropriate inter national agreements.
3. CHALLENGES WITH REGARD TO THE REGULATION OF MARINE POLLUTION FROM LAND-BASED ACTIVITIES
3.1 Scope and Diversity of the Issue
The definitions in UNCLOS and the Montreal Guidelines point to some of the difficulties contained in tackling marine pollution caused by land-based sources. First of all, these sources are very diverse, which makes it difficult to regulate this type of pollution.72 However, not only are the sources of pollution diverse, there are also a wide variety of pollutants which need to be taken into account. This diversity poses great difficulty when developing an international instrument to tackle this kind of marine pollution. Trying to cover all land based sources and activities has been cited as one of the mistakes made in the Montreal Guidelines.73 Besides the wide variety of sources and pollutants, “many actors and activities, such as pollutiongenerating industrial, agricultural and municipal activities, are involved in pollution from landbased activities”.74 This multitude of actors points to another important factor which needs to
be taken into account with regard to landbased sources of pollution, namely the economic factor. Many activities which lead to pollution are necessary components of a state’s economic development.75 An example would be industries for extraction of natural resources from the marine environment. In contrast to these incomegenerating activities, “[t]he economic costs of measures to regulate landbased pollution are seen as high, and inevitably affect economic development”.76 It is clear that most countries would not see the benefit of diminishing financially attractive activities in favour of costly environmental protection measures. Also, in addition to being beneficial for economic development, the landbased sources causing marine pollution
75 At 548.
76 At 548.
are lying within a state’s territorial sovereignty.77 Few states easily agree to measures which might impose on their territorial sovereignty in addition to their economic development. To please these varying viewpoints is one of the major difficulties in protecting the marine environment from land-based sources of pollution. Still, it is not the only factor posing difficulties. Besides the diversity of sources and the different attitudes of state actors, there is also the diversity in geography to be taken into account. Pollutants can have different effects with regard to the environment they are in, therefore:78
... attention should be drawn to geographical and ecological divergences in the oceans. In reality, the ocean environment is not homogenous. The movement of ocean currents and winds are complex and different; the degree of marine pollution varies in each coastal region.
These various factors make it very difficult to find a uniform solution to the problem of marine pollution by landbased activities and explain why it has taken the global community so long to take action. As has been shown, “this is a multipleissue, multiplejurisdiction type problem at the interface of land and sea, where any preventive and remedial action is likely to impinge upon a range of stakeholders and vested interests”.79
3.2 Global versus Regional — Binding versus Non-binding
Another source of contestation lies in the question regarding the best instrument to tackle marine pollution from landbased sources. Even after it was established that landbased sources contribute in high degree to marine pollution, there were opposing views whether a global approach was best suited to deal with the issue or whether a regional approach should be the preferred option.80 “For some, what was needed was a global ‘legally binding’ agreement similar to those that have been developed to deal with pollution from vessels and pollution by oceandumping.”81 At the same time, others favoured a regional approach which could be tailored to the different and specific circumstances of countries and rejected the notion of a uniform global approach.82 This was the predominant view when the issue of land-based pollution first came to attention
77 At 548.
78 At 548.
81 At 298.
82 At 298.
and it resulted in the development of the Regional Seas Programme by UNEP in 1974.83 Therefore, with the exception of the norms contained in UNCLOS, until the inception of the GPA, landbased sources of marine pollution had been predominantly tackled on a regional basis. While the GPA is now the leading instrument against landbased sources of marine pollution, its implementation is supported by the Regional Seas Programme. Both approaches are therefore present nowadays in the protection of the marine environment from landbased sources of pollution.
Besides the question of a global versus regional approach to tackle land based sources of marine pollution, another question that is still controversial is whether a binding convention would be more suited than a nonbinding agreement or protocol. This touches on the issue of hard versus soft law.
(i) Hard law versus soft law
Hard law is generally viewed as binding and soft law as nonbinding.84 How ever, this distinction might be too rigid, since both hard and soft law norms can direct the conduct of the entity they are addressed at. As both therefore have to some degree binding effect, the difference between them lies more in “the nature of their binding effect”.85 A blunt statement is that “[t]he key distinction between hard and soft law is that the former imposes greater costs on the violating state than does the latter”.86 While disregarding hard law norms brings about legal consequences, disregarding soft law norms merely brings about political consequences.87 Generally, soft law does not generate actual duties or prescriptions but rather goals to achieve in the future and programmes or guidelines.88
Soft law, nonbinding agreements are important in international environ mental practice. They can take the shape of political environmental action programmes “adopted by states convened to international conferences on international environmental and developmental matters”.89 Such action programmes, of which Agenda 21 is an example, are meant to direct the
83 At 299.
84 See Vinogradov and others, above n 10, at 1. 85 Beyerlin and Marauhn, above n 12, at 290.
behaviour of the involved states to act in a certain way and they include recommendations with regard to the desired actions.90 Many regulations first cast in soft law later also develop into hard law or customary international law.91
(ii) Hard law and soft law in the regulation of landbased sources
Both hard and soft law are present in the regulation of landbased sources of pollution.92 So far, UNCLOS is the only binding treaty dealing with pollution of the marine environment from landbased sources on a global level.93 Together with the local conventions agreed on by the Regional Seas Programme, UNCLOS represents the hard law regulations concerning protection of the marine environment from landbased sources of pollution. However, even though UNCLOS is hard law and a binding treaty, with the consequence that it has “greater ‘compliance pull’ than soft law”,94 as has been shown, its norms dealing with landbased pollution are not very detailed. UNCLOS does not provide precise obligations with regard to landbased pollution on its state parties.95 This gives the norms a certain soft character and points to the difficulties encountered by states when dealing with complex matters,96 as is the case with landbased sources of marine pollution. It is assumed that when dealing with such complex issues, states fear that putting down “rigidly-defined obligations” in a treaty would prevent many states concerned from ratifying that treaty due to the complexity of the issue at hand.97 Instead, it is assumed that:98
... States prefer to define, by common agreement, programs of action which invite them to adopt, starting at the national level, adequate material and regulatory measures.
The issue of marine pollution by landbased sources is considered to be “a politically sensitive issue, inextricably linked to industrial growth and development”.99 It is fitting that it was assumed more successful to deal with this issue in a nonbinding agreement instead of a global binding treaty. The GPA is an example of a political action programme and together with the
90 At 291.
96 At 429–430.
97 At 430.
98 At 430.
99 Williams and Davis, above n 11, at 219.
Montreal Guidelines constitutes soft law.100 States can be more easily persuaded to participate in soft law regimes due to the less stringent consequences with regard to noncompliance.
At the same time, however, states might not take the soft law instrument as seriously as a binding treaty because of its less stringent consequences. Therefore, the appeal and at the same time the critique of soft law lies in its less stringent consequences. It has to be evaluated whether the compliance pull of the GPA is strong enough for states to adapt their actions or whether some amount of binding obligation would be beneficial for successful implementation of the GPA.
4. THE ROLE OF CUSTOMARY INTERNATIONAL LAW IN THE PROTECTION OF THE MARINE ENVIRONMENT
FROM LAND-BASED SOURCES OF POLLUTION
It is necessary to evaluate briefly the role played by customary international law with regard to the protection of the marine environment from landbased sources of pollution. Customary international law is generated through “[a] consistent and general international practice amongst states; and [a]cceptance of this practice as law by the international community of states”.101 Customary international law is one of the sources of international law to be applied by the International Court of Justice which are enumerated in art 38 of the Statute of the International Court of Justice.102 The other sources are international conventions, the general principles of law, and judicial decisions and teachings.103 Customary international law and treaty law exist side by side and complement each other. However, the significance of customary international law decreases with the number of treaties addressing an issue increasing. Also, treaties provide rather detailed prescription compared to customary international law, which offers more abstract rules.104
In international environmental law, there are currently only few rules which are recognised by the international community to constitute customary international law. Marine pollution from landbased sources is a relatively new issue on the international agenda; consequently there is little state practice which could have resulted in customary international law rules regarding
this issue.105 One rule of customary international law of special importance is the noharm concept, alternatively also labelled good neighbourliness or the principle sic utere tuo ut alienum non laedas, after the Roman principle it is claimed to originate from.106 Although the origins of the noharm concept are disputed,107 it is generally understood to have originated from sic utere tuo ut alienum non laedas, which translates to “states cannot use or permit the use of their territories to the detriment of the rights and legitimate interests of other states”.108 This principle was taken up in international judicial decisions, most importantly in the Trail Smelter case,109 during which a dispute between the United States and Canada was heard. The dispute originated from damage to the environment in US territory by a Canadian copper smelter’s emissions. It was stated in the decision that no state had the right under the principles of international law to use its territory in a way which may cause injury to the territory of another state.110 This case was concerned with injury by fumes, but the principle is also applicable to marine pollution from landbased sources due to the circumstances of the pollution of a shared environmental resource which is caused by activities on land in the sovereignty of another state. The sovereignty of a state over the harmful activity results in state responsibility.111 After the Trail Smelter arbitration, the principle was included in the Stockholm Declaration as principle 21 and later it was reaffirmed in the Rio Declaration as principle 2.112 It is now acknowledged that the principle constitutes customary international law.113
Still, the benefit of its application with regard to land-based sources of marine pollution remains limited. Most importantly, this is due to the fact that the principle is primarily intended to ascribe state responsibility after environmental damage has occurred. It does not offer any guidance with regard to how such pollution might be prevented.114 With regard to landbased sources of pollution, the aim of the international community is to prevent such pollution. What is needed therefore are rules or at least guidelines directing states in the prevention of marine pollution.115 Customary international law does not provide this guidance and therefore plays a minor role in the protection of
111 At 72.
114 At 539.
115 At 542.
the marine environment from landbased sources of pollution. Actionoriented instruments like the GPA are more promising in this regard.
5. THE GLOBAL PROGRAMME OF ACTION FOR THE PROTECTION OF THE MARINE ENVIRONMENT
FROM LAND-BASED ACTIVITIES
5.1 Reception of the GPA
At its inception, the GPA ran the risk of being seen as “yet another global list of actions, encompassing all the proper ‘buzzwords’”,116 or even as the sequel of the Montreal Guidelines, plagued by the same inefficiencies as these had been.117 However, when it was introduced to the public, the GPA did receive good reviews, with one author commenting that “the Programme contains several elements actually designed to advance practical actions”.118 Not only that, but the GPA “sets out a logical, stepbystep process for determining priorities at national and regional level”.119
5.2 Content and Structure of the GPA
One important aspect of the GPA is that it has narrowed its scope to a certain limited number of pollutants and activities causing marine pollution. This is in contrast to the Montreal Guidelines, which aspired to cover all landbased activities.120 The contaminants and activities covered in the GPA are listed in art 21(b)(i)–(viii):121
(ii) Persistent organic pollutants;
(iii) Radioactive substances;
(iv) Heavy metals;(v) Oils (hydrocarbons);
119 At 188.
(vii) Sediment mobilization;
These contaminants had already been stated in Agenda 21 to “pose the greatest threat to the marine environment”.122 The enumeration of these contaminants offers states a point of reference with regard to problematic substances that could be at play in their territory.
Another important aspect of the GPA is its active involvement of states in the protection of the marine environment. It does so in requesting them to develop their own national programmes of action (NPAs).123 In the Washington Declaration, states had declared to develop NPAs within the next few years.124 Considering the nature of the Washington Declaration as a nonbinding soft law instrument, the obligation of states to implement NPAs cannot be legally claimed but there is political pressure on states to stand by their declaration.
The GPA lays out the recommended actions to be taken by states in order to develop their NPAs.125 States are advised to start out with the identification and assessment of problems. First, they are advised to identify the nature and severity of problems by relating them, among others, to the issues of food security and poverty alleviation, public health, coastal and marine resources, and economic and social benefits and uses.126 States shall take the previously listed most important contaminants into account and shall consider the sources the contaminants originate from. Possible sources are enumerated in art 21(d), ranging from point sources to nonpoint or diffuse sources and atmospheric deposition.127 Point sources consist of such sources as wastewater treatment facilities, industrial facilities, power plants and tourism facilities; nonpoint sources consist of, among others, urban, agricultural, mining and construction runoff; while atmospheric deposition can be caused by vehicle emissions, industrial emissions or incinerators.128 Besides the nature and
126 Art 21(a)(i)–(iv).
127 Art 21(d)(i)–(iii).
128 Art 21(d)(i)–(iii).
severity of problems, states should also take into account the occurrence of physical alteration to areas of concern or whether there are areas which are particularly vulnerable, for example: coral reefs, wetlands, lagoons or habitats of endangered species.129 Based on this assessment of the situation, states should establish their priorities for action.130
The GPA then enumerates a list of important points to be considered by states when developing and implementing their NPAs. Among these are listed: the need to apply integrated coastal area management, to apply environmental impact assessment procedures, and to apply the precautionary approach and the principle of intergenerational equity.131
The GPA further gives pointers as to what kind of strategies and measures should be applied by states when setting up their NPAs and what criteria should be developed to evaluate the effectiveness of the strategies.132 Finally, the GPA points out that the NPAs should “themselves be integrated with overall national objectives and other relevant programmes in relation to sustainable development”.133 The structures needed to ensure this integration may consist of: legal and enforcement mechanisms, available funding, ensuring public participation and awareness, as well as human resources available to implement the programmes.134
After regulating the points appertaining to the development of a NPA, the GPA lists a number of provisions directed at ameliorating regional and even international cooperation.135 The importance of regional cooperation is emphasised and states are advised to pursue more active participation in regional seas conventions or other marine conventions.136 It is stated that “[n]ational action strategies and programmes can sometimes be best developed in a regional and subregional context”.137 With regard to international cooperation, it is stated that it “serves a central role in enhancing capacitybuilding, technology transfer and cooperation, and financial support”.138 The GPA has a specific approach with regard to capacitybuilding and it is recommended that states should set up a socalled clearinghouse mechanism. This clearinghouse mechanism is “a referral system through which decision makers at the national and regional level are provided with access to current sources of information, practical experience and scientific and technical expertise relevant to developing and implementing
129 Art 21(c) and (e)(i)–(viii). 130 Art 22.
131 Art 23(a), (d) and (i). 132 Arts 26 and 27.
135 Arts 29–90.
136 Art 31.
137 Art 32(b).
138 Art 36.
strategies to deal with the impacts of landbased activities”.139 This would basically consist of a data directory, an informationdelivery mechanism, and the necessary infrastructure to put these in place.140
The GPA also goes into detail concerning the financing of the NPAs. It is recognised that “the mobilization of financial resources is the other indispensable foundation for the development and implementation of national and regional programmes”, besides the mobilisation of experience and expertise.141 It is clarified that the primary responsibility for the financing of the programmes lies with the states, but that it is necessary to offer support to countries in need of assistance.142 In this respect, the Global Environment Facility (GEF) is mentioned as a possible source of funding.143
A further important part in the GPA is played by the United Nations Environ ment Programme, which is to support the GPA and promote the implementation of the NPAs at the national level. In this regard, UNEP should act as a secretariat to the GPA.144 Also, UNEP is supposed to promote implementation of the GPA at the regional level, by “a revitalization of the Regional Seas Programme”.145 Finally, it should also promote implementation at the international level by bringing together the relevant international organisations with knowledge on the issue of landbased sources of pollution.146
In 2002 UNEP published a handbook for states regarding the development and implementation of NPAs.147 A second edition of the handbook was printed in 2006, which aimed to address some shortcomings of the first edition and to further actual implementation of the GPA.148 The handbook went in size from roughly 30 pages in the first edition to around 70 pages in the second edition, which shows that there were significant additions to be made.
145 Art 74(b).
146 Art 74(c).
The rest of the GPA is dedicated to a listing of the nine source categories of marine pollution, the objectives and proposed targets to be taken by states in relation to the sources of pollution, and proposed actions that states can take to fulfil those targets.149
5.3 Diversity of NPAs
As has been stated, the GPA offers a practical approach to dealing with marine pollution from land-based sources. While it does lay out specific actions to be taken with regard to the sources of pollution, it also acknowledges that each state will encounter its own set of problems and will have to deal with its problems in its own way. The GPA points out that:150
There are major differences among the different regions of the world, and the States which they comprise, in terms of geography, physiography, and ecology and, above all, in economic and social conditions, level of development and regional cooperation.
This statement, made in relation to funding required, aptly summarises the inherent difficulties in the problematic issue of marine pollution by land-based activities. With regard to these differences, the GPA concludes that “each State and each regional grouping should develop its own programme of action”.151 Considering the form of such NPAs, the GPA clarifies that:152
This may or may not be a separate document but it should include specific targets and a clear timetable showing the dates by which the State or States involved commit themselves at a political level to achieve these targets.
5.4 State of GPA Implementation Worldwide
So far, there have been three intergovernmental reviews (IGRs) held with respect to the GPA since its adoption at the Washington Conference. The third and latest IGR was held in Manila from 25–26 January 2012.153 At the time of
the meeting, 72 countries had developed their own NPA and 14 were developing a NPA.154 Several countries did not develop specific NPAs but had similar policies in place.155
At the first IGR, which was held in November 2001 in Montreal, it had been noted that while there had been progress made with regard to the development of national and regional action plans, only “little concrete action had yet taken place”.156 The reason for this lack of action was found to be due to a lack of political will to implement the GPA, a lack of funding, and a general lack of awareness of the GPA.157 This situation was also mirrored in the limited number of NPAs developed during the period from 1995 to 2001. Only three NPAs had been developed during this time.158 However, three binding agreements were concluded on the regional level. They were complementing regional conventions and dealing exclusively with landbased sources of pollution. These regional agreements proved to be helpful in the development of NPAs in their respective regions.159
The second IGR was held in October 2006 in Beijing. The period from 2001 to 2006 saw a boost in the development of NPAs:160
During the period, more than 60 national programmes of action were under implementation either through specifically designed programmes or through national development policies, programmes, initiatives and frameworks.
The third IGR held in Manila in 2012 undertook a review of NPAs and also undertook a “voluntary national reporting exercise”, in which states were invited to report on their progress in implementing the GPA.161 Development of NPAs was not as numerous as in the period before, but still 11 countries developed a NPA in the period from 2007 to 2011.162 The national reporting offered a glimpse into the reality of GPA implementation in different countries.
In the following, the implementation of the GPA on a national basis shall be evaluated by comparing the NPAs of two different countries. To provide a broadspectrum look into the different approaches towards the GPA, the two countries compared will be from the developing world and from the developed
world. For the purpose of this comparison, the two countries chosen are Bangladesh and Australia.
6. GPA IMPLEMENTATION IN BANGLADESH
The People’s Republic of Bangladesh is situated in South Asia on the Bay of Bengal.163 Bangladesh is situated in the delta formed by the Ganges Brahmaputra-Meghna river system and due to the multitude of rivers flowing through it, “the country is virtually a conglomerate of islands”.164 Bangladesh has a coastline of approximately 710 kilometres and “about 36 million people live in the coastal area of Bangladesh”.165
The economy of Bangladesh is dominated by the agricultural sector, “with just under 50% of [the] total labour force employed in the sector and more than 70% of the population involved directly or indirectly in agricultural activities”.166 Bangladesh is one of the least developed countries, but it is trying to achieve the status of a middleincome country. It still has a poverty ratio in its population of 31.5 per cent.167
6.2 The National Programme of Action of Bangladesh
Bangladesh’s first NPA was developed in 1999; it was later updated to incorporate findings of pilot projects undertaken in the region. This newer version is entitled Bangladesh: National Programme of Action for Protection of the Coastal and Marine Environment from Land-Based Activities [Bangladesh NPA].168 It is not clearly stated when exactly the updated version of the Bangladesh NPA was published; however, due to reference made to a meeting in 2003 in Sri Lanka for a GPA in the South Asia region, which influenced
the updated version of the Bangladesh NPA, the updated version must have been published after 2003.169 According to one source, it was developed in 2005, “through consultation with major stakeholders”.170 The Bangladesh NPA was submitted to the website Environment Knowledge Hub on 24 October 2007.171 Therefore it must have been developed sometime around 2005. While the Bangladesh NPA strikes one as a carefully formulated text, it is nevertheless flawed in parts due to lack of clarity with regard to such questions as the exact date of publication. Nevertheless, it shall provide good insight into the application of the GPA on a national level in a developing country.
Most countries follow the socalled full NPA path when setting up their NPA.172 The full NPA path is one of three envisaged paths that countries can take when setting up their NPAs: short NPA path, intermediate NPA path, or full NPA path.173 These paths distinguish themselves predominantly through the amount of provisions already in place in a country to protect the marine environment from landbased sources of pollution. If a country already has provisions and policies in place, this country does not need to go through the recommended five steps to set up its NPA, but can instead focus on supervising its current policies and adjusting them when necessary.174 The intermediate path means that a country already has environmental protection provisions in place but that it might need to add certain measures specific to marine environment protection to its already existing policies.175 The full path, however, means that a country lacks sufficient provisions to protect the marine environment and therefore is undergoing the full process to set up its NPA, which comprises the following five steps, which should then be repeated from time to time:176
173 At 33–35.
174 At 32–33.
175 At 34.
176 At 32 and 35.
(1) Initial preparations.
(2) Identification of problems, constraints and opportunities.
(3) Formulating of realistic strategies and action.
(4) Kickoff national measures and on the ground activities.
(5) Monitoring, evaluation and revision.
The Bangladesh NPA was developed by following the nationallevel actions set out in chapter II of the GPA, so it did not follow the UNEP handbook to the letter. The GPA suggests the following actions:177
(1) Identification and assessment of problems.
(2) Establishment of priorities.
(3) Setting management objectives for priority problems.
(4) Identification, evaluation and selection of strategies and measures.
(5) Criteria for evaluating the effectiveness of strategies and measures.
(6) Programme support elements.
While the steps concerning evaluation and planning are included in both approaches, the UNEP handbook goes into detail with regard to actual implementation of the NPA through its chapter 6 which includes information on “Kickoff national level measures and on the ground activities”, as well as “Monitoring, evaluation and revision”.178 These steps are not considered in the GPA and were introduced in the second edition of the UNEP handbook, which points to the difficulties encountered with actual implementation in the first years of the GPA. The UNEP handbook now offers valuable insight into the necessary activities to ensure successful implementation of the NPA after its inception. After all, actual protection of the marine environment is the ultimate goal of the GPA. For simplicity, the UNEP handbook will be evaluated with respect to the Bangladesh NPA to offer both a view of the ideal path to follow as well as of an actual implementation.
(i) Initial steps
The first step in the NPA process consists of setting up “a national, cross- sectoral and multistakeholder process”.179 In the course of this step, an overall lead team should be designated — for example, the Ministry of Environment — as recommended in the UNEP handbook. This lead team in turn sets up a core
179 At 37.
group, which will be responsible for the implementation of the NPA.180 With regard to the Bangladesh NPA, the Ministry of Environment and Forests set up a steering committee responsible to “review and monitor the progress”, while it is also responsible “for monitoring of implementation of ongoing activities”.181 The next steps ideally to be taken would be to “draft the initial scope, guiding principles and overall objectives for a NPA process”.182 A possible starting point to define the scope of the NPA could be the contaminants listed in the GPA. Another important aspect to keep in mind is the geographical scope of the NPA — whether the whole territory will be tackled or only a certain part of it.183 Other important actions recommended to be taken during this initial period are to hold brainstorming sessions, to identify the key players and stakeholders involved, and to develop an initial plan which should include objectives and a timetable. Also, initial funding should be secured, and to ensure the longterm implementation of the NPA endorsement by government should be achieved.184
(ii) Contaminantfocused approach of Bangladesh NPA
The Bangladesh NPA takes a contaminant-focused approach and identifies the key contaminants of concern to the country. It does so by following the process laid out in the GPA to identify and assess problems.185 The Bangladesh NPA also notes that consultation with the relevant stakeholders during the preparation of the NPA was held and that contributions had been incorporated into the final document.186 In the following, the Bangladesh NPA identifies the following key issues at play in Bangladesh:187
180 At 37.
183 At 40.
184 At 41–45.
187 At ch 3.1–3.12.
These issues are not all strictly speaking landbased sources or activities which pollute the marine environment — for example, deforestation is listed as a concern because it heightens the likelihood of natural calamities, which threaten life and property. Still, the majority of the issues identified fall under one of the nine contaminants listed in the GPA. It is rather positive that additional factors concerning environmental degradation are being included in the Bangladesh NPA.
(iii) Assessment of current situation
As a next step, the UNEP handbook recommends an evaluation of the “current situation in a country relevant in a NPA context”.188 An important part is played by the assessment of already existing policies and institutions and possible obstacles they encounter, which so far hinder the successful protection of the marine environment. There should also be an assessment of the existing information on the state of the environment, which should help pinpoint exactly the present condition of the environment, what has led to the current condition, and how the future could develop. This in turn would be helpful to setting priorities of action. Finally, the legal regime and the financial framework already in place should be evaluated, since “a NPA programme should build on the existing legal and financial framework in a country”.189
The Bangladesh NPA offers an assessment of the current situation in Bangladesh via the enumeration of the key issues identified. The assessment in the Bangladesh NPA lays out the scale of marine pollution by landbased sources in Bangladesh. As has been stated, not all of the key issues listed in the Bangladesh NPA include the contaminants listed in the GPA. However, industrial waste, sewage, solid waste, persistent organic pollutants, extractions occurring on the coast, shrimp farming, and tourism are those key issues which include one or more of the contaminants to be tackled by the GPA.190 Some accounts of key issues in the Bangladesh NPA show how precarious the situation is with regard to marine pollution. It must be noted, though, that the scientific data is often not very current. Instead, it is estimated on the basis of older data, how the situation could be at the time of drafting of the Bangladesh NPA. One account of the issues regarding sewage disposal states:191
188 UNEP handbook, above n 147, at 45.
189 At 48–49.
Sewage of nearly 36 million people living in 19 [c]oastal districts directly or indirectly goes to the water systems (rivers) and eventually flows into the Bay of Bengal. In fact, none of the coastal cities have any proper sewerage system or sewage treatment plant in place. All the urban cities are supported by septic tank and pit sanitation. Poor households use community latrines. However, these systems are directly or indirectly connected to canals or rivers through surface drain of the city.
This situation is thought to cause microbial contamination and loss of fishes and other aquatic organisms.192 The descriptions with regard to the other key issues offer similar pessimistic accounts. For example, with a view to the issue of industrial waste, it is stated that “nearly 600 industrial units ... are primarily responsible for water pollution through discharge of huge amount[s] of both solid and liquid waste that contains toxic substances ...”, and that “high level[s] of both fresh and marine water pollution due to improper management of industrial waste” had been identified.193
After a description of the key issue in question — for example, industrial waste — the Bangladesh NPA offers a listing of “pressure, state, impact and response” in relation to the issue. For industrial waste, one of the pressures is the untreated industrial liquid waste. This liquid waste has generated a high level of chemical concentration of the water bodies, which in turn has the impact of surface water pollution. As a response, several guidelines, acts and plans are listed which had been put in place: among others, the Environmental Impact Assessment guidelines for industries from 1997, the Environmental Conservation Act 1995 and the Environmental Conservation Rules 1997.194 The same approach is followed with regard to the other key issues.
(iv) Management objectives
After laying out the key issues, the Bangladesh NPA sets out its management objectives for priority problems.195 The most important of these objectives is “to protect the overall environment of coastal and marine areas of Bangladesh from land and landbased activities”.196 The Bangladesh NPA puts great emphasis on following a sustainability approach to secure the livelihood of people. Thereby, the Bangladesh NPA makes reference to the Bangladesh Poverty Reduction Strategy Paper and shows where both documents are linked. The strategies to achieve these management objectives are listed in chapter 5 of the Bangladesh
NPA and are further elaborated on in chapter 6. The strategies or actions to be taken are:197
(1) Proper management of agrochemicals and domestic wastes.
(2) Proper management of industrial waste.
(3) Increase coastal afforestation and conservation of existing forest areas.
(4) Promotion of awareness and capacity building (training, awareness, research and monitoring).
(5) Assessment of environmental flow requirement and salinity intrusion.
(6) Establishment of central data base directory and information system.
(7) Ensure preparedness to address natural and manmade disasters.
The actions which should be taken to implement these strategies are more closely explained in chapter 6. An estimation of the implementation period is given as well as a tentative budget. Also, the institutions responsible for implementation are designated for each action.198
6.4 Evaluation of the Bangladesh NPA
The evaluation of the Bangladesh NPA shows several important factors regarding the implementation of the GPA in a developing country. For one, it shows that Bangladesh has not been inactive with regard to the pressures on its environment. There is legislation in place which is intended to protect the environment. This legal framework could be utilised for the implementation of the Bangladesh NPA. However, the legal provisions are not being fully implemented by the state and must therefore be considered inadequate for environmental protection.199
The action programme — specifically the different action steps set out in chapter 6 — seems to offer genuine solutions to the key issues endangering the marine environment in Bangladesh and a lot of thought seems to have gone into the development of the action steps. However, the timetable for these steps is not specific, but only gives the number of years it is estimated to take to implement a certain action. Also, the budget listed with the action steps only gives the estimated amount it will take for implementation, but does not give any information on how those funds will be made available. The UNEP handbook, on the other hand, advises countries to “devise a financing strategy”,200 stating “it is important to be realistic in the formulation of objectives, goals, targets,
and priority activities and measures for stepbystep implementation”.201 There is also an exemplary list contained in the Annex of the GPA of possible funding sources for states.202 This list contains internal as well as external funding sources. Examples of internal funding sources a state could use are user charges, the principle of charging the polluter, local and national taxes, and more.203 External funding may consist of grants or loans besides other options.204 States are expected to evaluate these possibilities of funding. If these sources are not enough, states can also consider other external funding sources.205 However, the Bangladesh NPA does not contain a thorough evaluation of possible internal funding sources. There is reference made to financial incentives, which could be applied in connection with the aim to achieve proper management of the waste generated from shipbreaking and from industries.206 However, otherwise, there are no actual financial funding options proposed for implementation, which undermines successful implementation of the GPA. More information on financing is needed in the Bangladesh NPA.
Therefore, although the Bangladesh NPA offers specific solutions to the most problematic issues of marine pollution from landbased sources, there is a lack of discussion of appropriate funding, which leaves doubt concerning the actual implementation of the GPA. This shortcoming directly points out one of the factors hindering effective implementation of the GPA in Bangladesh, which is poverty.207
7. POVERTY AS A BARRIER TO SUCCESSFUL ENVIRONMENTAL PROTECTION
7.1 Diverging Viewpoints between Developing and Developed States
The most important factor obstructing successful protection of the marine environment seems to be poverty. As one of the least developed countries in the world, poverty is clearly an issue for Bangladesh as it is for all developing countries. Poverty is a barrier to effective environmental protection because the main aim of developing countries lies in poverty alleviation and development, not in environmental protection.208 It has been stated that “where
201 At 57.
204 Annex A.10.–11.
208 At 172–173.
people are struggling for their basic needs, they cannot act as protectors of the environment”.209 Therefore, throughout the beginning of the international environmental movement, environmental protection has been a contentious issue between developing and developed countries.
Also called the North–South divide,210 this rift between the states first became apparent at the Stockholm Conference, when developing states voiced their opinion that environmental degradation had primarily been caused by the developed states and should therefore also be treated as the problem of the developed world,211 while developing countries’ priorities lay with development.212 Since the 1960s, the developing countries had become more present in the international forum and had also gained significant influence. This influence was evident in the outcome of UNCED. The Rio Declaration explicitly referred to the Common but Differentiated Responsibilities (CBDR) of states with regard to their different contributions to the degradation of the environment.213
7.2 The Concept of “Common but Differentiated Responsibilities”
CBDR is considered “a cornerstone of the sustainable development paradigm”.214 CBDR is expressed in principle 7 of the Rio Declaration as follows: “In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities.”215 This sentence seems to imply that responsibility is directly dependent on contributions to degradation of the environment. Another view is that developing status might diminish responsibilities with regard to environmental protection. This view has been strongly opposed by the United States, which states that it does not endorse an interpretation of principle 7 that would diminish the responsibilities of developing countries.216 However, this has been regarded as “difficult to reconcile with the actual text of Principle 7”, since the text of principle 7 can only be understood in the sense “that developing countries have different, and to that extent, diminished obligations”.217 In this sense, the notion of CBDR is
209 At 173.
210 At 14.
present in many different environmental agreements in the form of differential standards or international assistance, for example.218 Besides the notion of developed states being primarily responsible for environmental degradation and therefore having to take on larger obligations,219 there is also the argument that diminishing the responsibilities of developing states is helpful, because it provides an incentive to developing countries to take part in environmental protection.220 Therefore, in many environmental agreements, developed states put stronger obligations on themselves than on the participating developing states.221 In addition to this, developed states also take on the obligation to provide developing states with financial and technological assistance.222
Lowering standards for developing countries with regard to environmental protection cannot be a longterm solution.223 But the concept of CBDR offers the possibility to include developing countries more strongly in environmental protection by acknowledging their situation and offering them assistance. Since there are about 150 developing countries members of the UN nowadays, compared with an overall membership of 193 states, the notion of CBDR is more important than ever with regard to the protection of the environment and also specifically with regard to the protection of the marine environment.224
7.3 The Concept of Common but Differentiated Responsibilities in the GPA
CBDR is not directly acknowledged in the GPA as it is in some environmental agreements. There is also no indication in the GPA that developing states are given the benefit of less stringent standards when developing their NPAs. No distinction is made between developing and developed countries in the approach taken to develop NPAs. However, the nonbinding character of the GPA leaves each state the freedom to develop a NPA according to its own capacities.
There is acknowledgement of the difficult situation faced by developing states with regard to funding of the implementation of the GPA. Several references are made in the GPA to Agenda 21, para 17, which deals with the protection of the oceans.225 This contains several provisions regarding the
218 At 39.
219 At 46–48.
220 At 56–58.
treatment of developing countries in their implementation of the envisaged actions to protect the ocean. It is stated that developing countries will need additional financial resources as well as access to cleaner technologies and research to be able to fulfil their commitment in protecting the marine environment.226 The GPA reiterates these commitments made in Agenda 21, para 17.227 With regard to financial resources, the GPA stresses that while the NPAs should primarily be funded by each country itself, countries in need of assistance will require new and additional funding to supplement their efforts.228 The GPA therefore does take the notion of CBDR into account by acknowledging the need for assistance of developing countries.
8. GPA IMPLEMENTATION IN AUSTRALIA
In 1995, at the same time that the GPA was agreed to in Washington, in Australia the State of the Marine Environment Report “found that pollution from the land contributes up to 80 percent of all marine pollution and is a major threat to the longterm health of nearshore marine systems”.229 This finding was in line with Agenda 21’s conclusion on the state of the marine environment which led to the creation of the GPA.230 Australia consequently established its own NPA which, besides the GPA itself, built on findings of a conference on developing NPAs Australia helped host together with UNEP and also on the Framework and Implementation Plan for a National Cooperative Approach to Integrated Coastal Zone Management. One of the conclusions of the Global H2O: Hilltops2Oceans Partnership Conference in Cairns had been that countries should “avoid the tendency to treat various policy instruments as alternatives to one another rather than as potentially complimentary mechanisms”.231 By building on other already existing policies, the drafters of the Australian NPA
<www.environment.gov.au> at 2 [Australian NPA].
seem to have taken this advice to heart and the Australian NPA is described as highlighting the activities already undertaken by Australian governments.232
Australia owns a large coastal zone of 36,000 kilometres in length. The coastal environment varies from tropical climate zones to more temperate zones. Due to Australia’s federal structure, there is not one single jurisdiction governing the coast and responsible for its protection;233 however, the national, state, territory, and also local governments have been cooperating in the protection of the coastal zone via the 2006 National Cooperative Approach to Integrated Coastal Zone Management.234 The majority of Australians, more than 86 per cent, live in the coastal area and the Australian population is considered to be attached to its coast in one way or other, be it due to living on the coast or holidaying there.235 The importance of Australia’s coast to the country and its people is highlighted in the Australian NPA.
The Australian NPA is a summary of actions undertaken in Australia to tackle the issue of marine pollution by landbased sources.236 A lot of effort had already gone into protecting the marine environment before the NPA was conceived. The approach of this NPA is therefore different to the approach taken in the Bangladesh NPA. While the Bangladesh NPA is pointing out what still needs to be done, the Australian NPA is more retrospective in that it points out what has already been done. Therefore, Australia has been labelled in the UNEP handbook as an example of the countries which fulfil the criteria to follow the short NPA path: “Care for the coastal and marine environment is fully integrated in ongoing strategies, programmes and activities to achieve sustainable development.”237 In this situation, it is enough for a country to simply lay out the different avenues it uses to prevent marine pollution from landbased sources. A country following this short path then only has to evaluate its solutions with regard to problems identified on a regular basis.238
The Australian NPA first starts with a description of possible polluting factors for the Australian marine environment: what it labels the “challenge for Australia”.239 The strains on the marine environment range from increased
236 At 10.
coastal populations with subsequent pollution from sewage and drainage runoff to the repercussions of industrial development on the coastline with elevated levels of minerals and even harmful substances such as dioxin.240 Coastal development has also brought about changes in the coastal environment on land with a reduction of the natural vegetation necessary to maintain healthy waterways and to prevent pollutants from being drained into the ocean.241
The next part of the Australian NPA covers the different measures taken on a national, state, or territory and local level to protect the marine environment from the negative impacts laid out in chapter 2.242 It does so by first elaborating on the initiatives taken on the national level by cooperation of all Australian governments.243 One of these approaches is the Framework for a National Cooperative Approach to Integrated Coastal Zone Management, which is targeted at issues concerning the coastal zone that best need to be tackled at a national level.244 There are further national initiatives, concerning the sustainable use of water resources and water quality, as well as a national pollutant inventory and five-yearly reports on the state of the environment mandated by law.245 Besides action at a national level, there are also socalled bilateral initiatives which are agreed on by the Australian government and state or territory governments.246 The Australian NPA also goes into detail about further action taken by the Australian government, namely legislation and policies aimed at protecting the environment and specifically the marine environment and also research initiatives which are relevant to the implementation of the GPA.247
The next part of the Australian NPA is dedicated to the actions taken by the individual states and territories. For each state or territory, legislation and policies are evaluated as well as programmes and research undertaken. A specific section is dedicated to the relevance of each state or territory’s actions with regard to the GPA.248 Finally, the Australian NPA touches on the efforts of local governments and of nongovernmental organisations and of industry.249 The Australian NPA closes with a section on the lessons learned from the actions undertaken so far and with a final conclusion that the current system at play in Australia pays respect to the need to protect the marine environment from landbased sources of pollution. Strengths of the system are seen in its
240 At 6–7.
241 At 8.
242 At 10.
243 At 10.
244 At 11.
245 At 14.
246 At 15–16.
247 At 18–19.
248 At 20–37.
249 At 38–49.
diversity; at the same time, this diversity is acknowledged to pose problems with regard to gaps or duplications in implementation of actions relevant to the GPA. Overall, however, it is clear that the Australian system is considered to sufficiently address the expectations of the GPA.250
9. EVALUATION OF THE GPA
9.1 Necessity of the GPA
A common notion when dealing with environmental pollution might be to consider developed countries to have less pollution than developing countries. While developed countries through their own development caused much of today’s pollution, they nevertheless also had been the driving force behind the environmental movement which emerged in the 1970s with the Stockholm Conference. Therefore, a common assumption could be that developed countries have cleaned up their acts. This is especially true when it comes to a country that sees its natural environment as defining part of its image, such as Australia does, and relies on its environment for tourism purposes. Still, Australia’s environmental report had shown that up to 80 per cent of marine pollution originated from land-based sources, which is in line with the finding on a global level. This confirms that the generation of the GPA was not only needed for developing countries, but also for developed countries.
9.2 Challenges with Regard to the Implementation of the GPA
The GPA aims to tackle the serious environmental problem of marine pollution by landbased sources. As has been shown, this issue had been neglected for some time, as had other environmental issues on the international agenda. However, since the inception of the GPA, around 80 NPAs have been developed.251 The examples of Bangladesh and Australia show that states put a lot of effort into the development of their NPAs. However, there are some challenges with regard to successful implementation of the GPA. The primary challenges opposing successful implementation of the GPA are lack of interest on the side of states, the nonbinding status of the GPA and lack of compliance mechanisms, as well as lack of assistance for developing countries.
250 At 48–52.
251 See above part 5.4.
The fact that intergovernmental reviews are held at regular intervals is a positive sign that the GPA process is kept active and not neglected or left to die by neglect. Nevertheless, despite these efforts, there are signs that the interest in the GPA could be fading. In 1995, 108 states took part in the Washington Conference where the GPA was adopted; 98 countries participated at the first IGR in Montreal; while 104 countries participated in the second IGR in Beijing.252 However, only 65 governments and the European Commission took part in the third IGR held in Manila in January 2012.253
These numbers could be due to normal fluctuations and not signify any change in importance of the GPA. However, there does seem to be a lack of interest on the side of states to make landbased sources of marine pollution a priority on their national agenda. This lack of interest is especially evident in the case of Bangladesh. Even though Bangladesh invested a lot of effort into the development of the Bangladesh NPA, it does seem that the significance of the Bangladesh NPA has wavered since its inception. There is hardly any review material to be found on the NPA. A National Report on Bangladesh was prepared prior to participation of the country at the United Nations Conference on Sustainable Development (UNCSD), also known as Rio+20.254 While the report points out the state of several environmental aspects in Bangladesh, it does not go into great detail on marine pollution by landbased sources and does not mention the GPA or the Bangladesh NPA specifically. Given that this report deals with the issue of sustainable development and that the idea for the GPA was born out of Agenda 21, which offered a programme for sustainable development, the lack of mention of the GPA is surprising.
The main conclusion drawn in the report on Bangladesh is that to conform to a strategy of sustainable development, “the country needs international support in terms of transfer of adequate finances and technologies”.255 This confirms the impression that to keep efforts for marine protection, or protection of the environment in general, alive in Bangladesh and presumably other developing countries, more support needs to be offered to these countries. For the sake of the environment, developed states must take on these additional obligations.
The lack of interest in the GPA by Bangladesh and the subsequent negligence in its implementation points to another great weakness of the GPA: it is not a binding agreement; therefore implementation can be neglected without great harm. The same could not be said of a binding agreement. Consequently, “legal techniques to limit the margin of discretion of States”256 should be at the centre of efforts to protect the marine environment from landbased sources of pollution.
Contrary to the GPA are the Regional Seas Programmes, which usually consist of a binding convention and additional protocols. These conventions and protocols could provide input to the GPA with regard to compliance measures. One example of a regional programme which might offer guidance is the OSPAR Convention.257
Although the OSPAR Convention has not been developed under UNEP, but is an independent programme, it is regarded as a member and partner of the Regional Seas Programme family and takes part in meetings of the Regional Seas Programme.258 OSPAR covers landbased sources of pollution besides pollution from dumping and incineration, and pollution from offshore sources and from other sources.259 OSPAR follows a different approach with regard to the prevention of pollution by landbased sources compared to the GPA; however, its compliance mechanisms could be of interest to the GPA.
OSPAR contains two articles which could help induce compliance when applied by the GPA. First, art 10 sets up a commission, composed of representatives of each of the contracting parties, whose duty it is among others to supervise the implementation of the convention and to review the condition of the maritime area and the effectiveness of the measures adopted.260 It does so on the basis of reports the participating states have to submit to the commission according to art 22.261 These reports have to be submitted on a regular basis and shall include information on the legal, regulatory and other measures taken by the state to implement the convention, the effectiveness of the measures, and any problems in implementation.262 Compliance is evaluated by the commission on the basis of these reports, and if full compliance is not achieved by a state the
commission can decide on steps to bring about such full compliance and ways to support a state in achieving such compliance.263
There is no such commission for the GPA. UNEP, the secretariat of the GPA, is only supposed to promote and facilitate the implementation of the GPA.264 It does not control whether states are implementing the GPA and has no power to force them to implement it. There is also no regular reporting system in the GPA; states are merely encouraged to prepare reports for the periodic intergovernmental meetings taking place by initiative of UNEP.265 However, these IGRs are on a voluntary basis and participation by states is dwindling.266 Many states may not be implementing the GPA properly, but there is no institution which has the power to force states to comply with the GPA as the commission has under OSPAR.
Developing countries struggle more with environmental protection because they lack the necessary funds and are preoccupied with developmental improvements. The GPA stresses that funding for the NPAs must come primarily from the states themselves.267 Even though help is offered to countries in need, while developing the GPA, “[d]onor countries have made it quite clear that they are not prepared to bankroll the GPA”.268 This attitude needs to be reconsidered, especially since differentiated responsibilities in the form of less stringent obligations or financial and technical assistance have become the norm in environmental agreements. CBDR provides an incentive for developing states to participate in the protection of the environment. With regard to the implementation of the GPA, it does seem that financial and technical assistance is much needed by developing countries. Taking into account CBDR, developed countries should offer this assistance.
10. SUGGESTIONS TO IMPROVE GPA IMPLEMENTATION
Overall, the GPA is a sensible programme which could yield great results. However, it does seem that the GPA would benefit from having binding effect and a compliance mechanism similar to the one found in OSPAR. This is necessary to prevent growing disinterest by states. Otherwise, the GPA is at the
265 Arts 77–78.
mercy of states’ goodwill when it comes to its implementation. Additionally, even if the GPA were a binding agreement, there would still be room for improvement. While the GPA offers guidance to countries to develop their own national strategy to prevent marine pollution from landbased sources, it does not offer any targets which need to be achieved and it also does not offer a review mechanism.269 Targets would be helpful in evaluating the effectiveness of measures taken and of the GPA itself. Such targets could prove difficult to develop, due to the differences in the scale of marine pollution by land based sources. But they would provide a further incentive for states to really try and solve the issues surrounding marine pollution. Last, for the sake of the environment, it is necessary to offer developing countries more assistance with regard to the implementation of their NPAs. After all:270
... it will only be ... a substantial increase in the transfer of financial and technological resources from North to South that will allow developing States to both improve their socioeconomic situation and reduce their future negative impact upon the environment.
While the GPA offers a practical approach to tackling the problem of marine pollution by landbased sources, it lacks the necessary compliance mechanisms to ensure implementation. Without such mechanisms, the GPA runs the risk of losing out against other interests such as economic development — something that is especially likely to happen in developing countries. To prevent this scenario, it is also necessary to offer developing countries more assistance with regard to the implementation of the GPA. This should be undertaken in the sense of differentiated responsibilities by states, which have become a common tool in environmental protection agreements. With such measures it could be possible to keep this important environmental issue in the focus of the global community.