Whither international institutional arrangements to support ocean law?

Columbia Journal of Transnational Law

Volumn 36, Issue 1-2, 1997, Pages 308-337

  Kimball, Lee A ^a  

^a NONE

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EID: 26244431780     PISSN: 00101931     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (54)

1. United Nations Convention on Law of the Sea, done at Montego Bay, Dec. 10, 1982, U.N. Doc. A/Conf. 62/1-22 (17), reprinted in 21 I.L.M. 1261 (1982) and in UNITED NATIONS, THE LAW OF THE SEA, U.N. Sales No. E.83.V.5 (1983) [hereinafter L.O.S. Convention].
2. See Secretary General's Report on the LOSC: Protection and Preservation of the Marine Environment, U.N. Doc. A/44/461 (1989) [hereinafter L.O.S. Convention Report];
3. Bernard H. Oxman, The Duty to Respect Generally Accepted International Standards, 24 N.Y.U. J. INT'L L. & POL. 109, 131-35, 141-42, 144, 148-52, 156 (1991);
4. Jonathan I. Charney, The Marine Environment and the 1982 U.N. Convention on the Law of the Sea, 28 INT'L LAW. 879, 884, 888-89, 898, 900-1001 (1994);
5. John R. Stevenson & Bernard H. Oxman, The Future of the U.N. Convention on the Law of the Sea, 88 AM. J. INT'L L. 488, 492, 495(1994);
6. Lee A. Kimball, The U.N. Convention on the Law of the Sea: A Framework for Marine Conservation, in THE LAW OF THE SEA: PRIORITIES AND RESPONSIBILITIES IN IMPLEMENTING THE CONVENTION 26-29, 45-46, 53, 58, 62-63, 65, 71-72 (1995). It is interesting to note in this respect that the Geneva Convention on the High Seas, done at Geneva, Apr. 29, 1958, 13 U.S.T. 2312, T.I.A.S. No. 5200 foreshadows this approach. Article 24 provides that "[e]very State shall draw up regulations to prevent pollution of the seas by the discharge of oil from ships or pipelines or resulting from the exploitation and exploration of the seabed and its subsoil, taking account of existing treaty provisions on the subject." Article 25(1) provides that "[e]very State shall take measures to prevent pollution of the seas from dumping of radioactive waste, taking into account any standards and regulations which may be formulated by the competent international organizations" (emphasis added).
7. See L.O.S. Convention, supra note 1, arts. 208(3), 210(6) & 211(2) on pollution and 61(3) and 119(1) on fish. The pollution control measures are developed within the International Maritime Organization (IMO) and pursuant to IMO conventions on vessel safety and pollution control as well as the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, done at London, Dec. 29, 1972, 26 U.S.T. 2403, 1046 U.N.T.S. 120 [hereinafter 1972 London Convention]. Where global rules and standards serve as minimum standards for dumping, international rules, standards, and recommended practices and procedures establish a minimum for national measures on pollution from seabed activities. There are several regional agreements on offshore seabed activities.
8. See L.O.S. Convention, supra note 1, arts. 207(1) & 212(1).
9. There are nine regional conventions which cover pollution from land-based activities, six of which have protocols or annexes addressing this source more specifically (Baltic Sea, Northeast Atlantic, Mediterranean, Kuwait/Gulf, Southeast Pacific, Black Sea). In some cases, airborne pollution from land-based sources is also included. Nevertheless, it appears that only the European agreements have adopted specific rules at the regional level. Id.
10. WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT, OUR COMMON FUTURE 262-74 (1987).
11. The evolution of thinking on coastal and riverborne impacts is traced by Edward L. Miles in Approaches of UNCLOS III and Agenda 21 - A Synthesis, 29 LAW OF THE SEA INST. 16, at 28-32 & nn. 17-24 (1995) (paper prepared for the 29th Annual Conference of the Law of the Sea Institute, Denpasar, Bali, Indonesia, June 19-22, 1995).
12. Miles cites the following: River Inputs to Ocean Systems, UNEP/IOC/SCOR (1981);
13. Wastes in the Marine Environment, OTA-0-334 (1987);
14. Joint Group of Experts on the Scientific Aspects of Marine Pollution (GESAMP), The State of the Marine Environment, UNEP REGIONAL SEAS REPORTS AND STUDIES No. 115 (1990) [hereinafter The State of the Marine Environment];
15. Coastal Systems Studies and Sustainable Development, UNESCO Technical Papers in Marine Science No. 64, UNESCO/ UNEP/SCOR/IOBA (1991/1992);
16. GESAMP, Anthropogenic Influences on Sediment Discharge to the Coastal Zone and Environmental Consequences, UNEP REPORTS AND STUDIES No. 52 (1994).
17. The U.N. Food and Agriculture Organization (FAO) decided to give higher priority to preventing environmental degradation affecting fisheries in 1989; the Intergovernmental Oceanographic Commission (IOC) in 1987 revised its statutes to better address the marine science needs of developing nations; and the IMO introduced a new strategy on the marine environment in 1987 to better link technical guidelines on maritime safety and pollution prevention. See UNCED, INTERNATIONAL INSTITUTIONS AND LEGAL INSTRUMENTS 4-5 (UNCED Research Paper No. 10, Office for Ocean Affairs and the Law of the Sea of the U.N. Secretariat) (July 1991).
18. See The State of the Marine Environment, supra note 7. This report estimates that on a global basis, 44% of marine pollution from human activities stems from run-off and land-based discharges and 33% from deposition through the atmosphere.
19. For background on the UNCED preparations, see Arthur L. Dahl, Land-Based Pollution and Integrated Coastal Management, 17 MARINE POLICY 561, 561-65 (1993).
20. See Note Verbale Dated March 1996 From the United States Mission to the United Nations Addressed to the Secretary-General, U.N. GAOR, 51st Sess., Item 24, U.N. Doc. A/51/116, Annex II (1996).
21. See also Lee A. Kimball, An International Regime for Managing Land-Based Activities That Degrade Marine and Coastal Environments, 29 OCEAN & COASTAL MGMT. 187 (1995) (for discussion).
22. See Agreement for the Implementation of the Provisions of the U.N. Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, U.N. Doc. A/CONF.164/37 (1995) [hereinafter 1995 U.N. Fish Agreement]. This Agreement addresses primarily the stocks covered by articles 63 and 64 of the L.O.S. Convention.
23. The binding 1993 FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas is considered apart of the Code.
24. See L.O.S. Convention, supra note 1, art. 207, on land-based pollution which specifically refers to taking into account characteristic regional features and the economic capability of developing states in drawing up international measures. It emphasizes harmonization at the appropriate regional level.
25. See Declaration of the United Nations Conference on the Human Environment, adopted on June 16, 1972, Principle 21, reprinted in Report of the United Nations Conference on the Human Environment, U.N. Doc. A/CONF. 48/14/Rev.1 (1972), revised byU.N. Doc. A/Conf.48/14/Corr.1 (1972), U.N. Sales No. E.73.IIA.14 (1973), reprinted in 11 I.L.M. 1416 (1972); United Nations Conference on Environmental Development: Rio Declaration on Environment and Development, done at Rio de Jeneiro, June 14, 1992, U.N. Doc. A/Conf.151/ 5/Rev.1 (1992), reprinted in 31 I.L.M. 874 (1992). L.O.S. Convention art. 194(2), supra note 1, affirms this obligation with respect to damage by pollution.
26. During the Stockholm Conference, developing countries rejected a draft of Principle 21 of the Stockholm Declaration that would have required states to supply information on national activities in order to reduce the risk of significant adverse environmental effects in areas beyond national jurisdiction. See PETER S. THACHER, GLOBAL SECURITY AND RISK MANAGEMENT: BACKGROUND TO INSTITUTIONAL OPTIONS FOR MANAGEMENT OF THE GLOBAL ENVIRONMENT AND COMMONS 13-14 (1991).
27. See Paul Szasz, Restructuring the International Organization Framework, in ENVIRONMENTAL CHANGE AND INTERNATIONAL LAW: NEW CHALLENGES AND DIMENSIONS 372-73 (E. B. Weiss ed., 1992).
28. See Report of the U.N. Secretary-General on the L.O.S. Convention, U.N. GAOR, 51st Sess., Agenda Item 24(a), U.N. Doc. A/51/645, ¶ 293 (1996).
29. See Report of the U.N. Secretary-General on the L.O.S. Convention, U.N. Doc. A/49/631, ¶ 92 (1994). For a survey of references, see Lyle Glowka in collaboration with Cyrille de Klemm, Non-Indigenous Species Introductions: References in International Instruments: A Chart Distributed for Comments at the Norway/U.N. Conference on Alien Species, July 1, 1996 (draft on file with author).
30. See Dec. II/10, U.N. Doc. UNEP/CBD/COP/2/19, Annex II at 56-61 (1995); Rec. I/8 of the Subsidiary Body on Scientific, Technical and Technological Advice, U.N. Doc UNEP/CBD/COP/2/5, at 34-43 (1995).
31. See, e.g., The 1995 Waterbirds Agreement, infra note 33; Adoption of Specific Criteria Based on Fish for Identifying Wetlands of International Importance, Res. VI.2 (1996), adopted pursuant to the Convention on Wetlands of International Importance, Especially for Waterfowl, Feb. 2, 1971, T.I.A.S. No. 11084 [hereinafter Wetlands Convention]; and Guidelines for Evaluating Marine Turtle Ranching Proposals, Res. Conf. 9.20 (1994), adopted pursuant to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087, T.I.A.S. No. 8249.
32. The terms "degradation" and "land-based activities" are replacing "pollution" and "land-based sources" in order to encompass this range. See, e.g., UNITED NATIONS, AGENDA 21: THE UNITED NATIONS PROGRAMME OF ACTION FROM RIO, U.N. Sales No. E.93.1.11, ch. 17 [hereinafter AGENDA 21]; Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities, done at Washington, D.C., Nov. 3, 1995, U.N. Doc. A/51/116, Annex II, (1996) [hereinafter 1995 Global Programme of Action on Land-Based Activities];
33. The 1996 Revised Protocol on Protection of the Mediterranean Sea Against Pollution from Land-Based Sources, arts. 1, 4, 5, U.N. Doc. UNEP(OCA)/MED IG.7/4 (1996).
34. See Reports of the Secretary-General on the L.O.S. Convention, U.N. GAOR, 51st Sess., Agenda Item 24(a), at ¶¶ 138-40, U.N. Doc. A/51/645 (1996); and U.N. GAOR, 50th Sess., Agenda Item 39, at ¶ 235, U.N. Doc. A/50/713 (1995). The four existing regional instruments on offshore seabed activities are subsidiary to the Northeast Atlantic, Baltic Sea, Mediterranean Sea, and Gulf/Kuwait regional conventions.
35. See WORLD BANK ENVIRONMENT DEPARTMENT, ENVIRONMENTAL ASSESSMENT SOURCEBOOK, UPDATE No. 10 at 2 (1996).
36. As reflected in AGENDA 21, supra note 21. See the GLOBAL ENVIRONMENT FACILITY, GEF OPERATIONAL STRATEGY 48 (1996). The GEF was established by the World Bank, U.N. Environment Programme (UNEP), and U.N. Development Programme (UNDP) in 1991 to support programs and projects of global environmental benefit in four areas. It is expressly subject to the guidance of and accountable to convention contracting Parties in the areas of climate change and biodiversity, see infra note 32. Ozone projects must be consistent with the Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987, 26 I.L.M. 1541 (1987). International waters is its fourth area of operation.
37. A selective history of oceans institutions with an emphasis on information functions would include the establishment of the International Council for the Exploration of the Sea [hereinafter ICES] in 1902, to promote and coordinate marine research and disseminate the results, largely regarding fisheries in the North Atlantic; the Bureau of Whaling Statistics as early as the 1930s, to serve the first international whaling convention, Convention for the Regulation of Whaling, done at Geneva, Sept. 24, 1931, T.S. No. 880, 155 L.N.T.S. 349 [hereinafter 1931 Whaling Convention], whose functions were transferred to the staff of the International Whaling Commission established by the International Convention for the Regulation of Whaling, done at Washington, D.C., Dec. 2, 1946, T.I.A.S. No. 1849, 161 U.N.T.S. 72 [hereinafter 1946 Whaling Convention]; regional fishery commissions under FAO auspices from the 1940s, to support research and statistics collection, with analysis carried out by FAO staff; independent regional fishery commissions from the 1940s, some with a mandate to undertake research and analysis; IMO in 1958; IOC in 1960, to promote oceanic research and strengthen national marine science capabilities; the International Atomic Energy Agency [hereinafter IAEA], established in 1957, in its assessment capacity regarding at-sea disposal of radioactive wastes pursuant to the 1972 London Convention, supra note 3; and GESAMP in 1969. GESAMP's initial task was to classify the hazards posed by chemical substances and other products to the marine environment and develop criteria and methods for assessing the risks of ship carriage. When UNEP was established in 1972, it was hoped that a more systematic inter-agency approach to monitoring environmental conditions and trends could be established. The Global Environmental Monitoring System [hereinafter GEMS] was set up in 1975 with UNEP as coordinating secretariat. It has since been encompassed in the larger inter-agency Earthwatch Programme. During the last decade, there have been ongoing attempts to move ahead with a Global Ocean Observing System [hereinafter GOOS], sponsored by WMO, IOC, and UNEP.
38. See 1946 Whaling Convention, supra note 25, pursuant to art. III. See also Convention for the Prevention of Marine Pollution from Land-Based Sources, done at Paris, June 4, 1974, 13 I.L.M. 352 (1974) superseded by Convention for the Protection of the Marine Environment of the North-East Atlantic, done at Paris, Sept. 22, 1992, 32 I.L.M. 1069 (1993).
39. See, e.g., the World Conservation Union [hereinafter IUCN] under the 1995 Waterbirds Agreement, infra note 33, art. VII(1); see supra note 20 and accompanying text; KIMBALL infra note 28, at 238; Convention on the Protection of the World Cultural and Natural Heritage, Nov. 23, 1972, arts. 13(7) and 14(2), 27 U.S.T. 37, T.I.A.S. No. 8226. See also the Scientific Committee on Antarctic Research [hereinafter SCAR] under the Antarctic conventions; e.g., Antarctic Treaty Recommendation I-IV (1961) in 1 THE MARINE MAMMAL COMMISSION COMPENDIUM OF SELECTED TREATIES, INTERNATIONAL AGREEMENTS, AND OTHER RELEVANT DOCUMENTS ON MARINE RESOURCES, WILDLIFE, AND THE ENVIRONMENT 9 (1993) [hereinafter THE MARINE MAMMAL COMMISSION COMPENDIUM]; the Convention for the Conservation of Antarctic Seals, June 1, 1972, art. 5, 29 U.S.T. 441, T.I.A.S. No. 8826; and the Convention on the Conservation of Antarctic Marine Living Resources, May 20, 1980, arts. 23(3) and (4), 33 U.S.T. 3746, T.I.A.S. No. 10240.
40. For a fairly comprehensive review of bodies providing scientific and technical advice for oceans and other environmental conventions, see LEE A. KIMBALL, TREATY IMPLEMENTATION: SCIENTIFIC AND TECHNICAL ADVICE ENTERS A NEW STAGE (Studies in Transnational Legal Policy, American Society of International Law, No. 28) (1996).
41. See L.O.S. Convention, supra note 1, art. 201.
42. For an outline of how to develop national programs, see 1995 Global Programme of Action on Land-Based Activities, supra note 21, ¶¶ 21-28. Other assessment frameworks include those employed under the 1946 Whaling Convention, supra note 25 and 1972 London Convention, supra note 3; and the less elaborated guidelines for application of precautionary reference points to straddling and highly migratory stocks in the 1995 U.N. Fish Agreement, supra note II, at Annex II. For a risk assessment framework related to routine shipping operations, see Hance D. Smith, The Environmental Management of Shipping, 19 MARINE POLICY 503, 503-08 (1995).
43. See supra note 30 and accompanying text. The analytical framework could equally be applied to issues of marine and coastal biodiversity. The land-based clearinghouse mechanism will similarly overlap with that contemplated under the Convention on Biological Diversity, done at Rio de Janeiro, June 5, 1992, art. 18(3), reprinted in 31 I.L.M. 822 (1992) (entered into force Dec. 29, 1993) [hereinafter Biodiversity Convention].
44. See Lee A. Kimball, Institutional Developments, 3-6 Y.B. INT'L ENVTL. L. at 183, 102, 133-34, and 185-87, respectively (1992-1996). In addition, the U.N. Inter-Agency Committee on Sustainable Development [hereinafter IACSD], established following UNCED, sponsors several ongoing initiatives related to information resources in the U.N. system.
45. Respectively, the Convention on the Conservation of Migratory Species of Wild Animals, June 23, 1979, 19 I.L.M. 15 (1980), which has subsidiary "Agreements" on the Conservation of Seals in the Wadden Sea (1990), Conservation of Small Cetaceans of the Baltic and North Seas (1992), Conservation of African-Eurasian Migratory Waterbirds (1995) [hereinafter 1995 Waterbirds Agreement], and Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (1996); the 1989 Convention on Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, 28 I.L.M. 657 (1989); see also supra note 20 and accompanying text. For further discussion of financial support arrangements, see KIMBALL, supra note 28 at 203, 231, 240; UNEP and the Convention Secretariats, infra note 37, at 30-46.
46. See, e.g., Recs. C.3.4 and C.3.5 (1987), C.4.13 (1990), C.5.5 (1993), and 6.16 (1996), adopted pursuant to the Wetlands Convention, supra note 20; UN Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, particularly in Africa, June 17, 1994, arts. 20(5)(a) and 21(1)(b), 33 I.L.M. 1328 (1994); Report of the Conference of the Parties on its First Session, held at Berlin from 28 March to 7 April 1995, Decision 11/CP.1, U.N. Doc. FCCC/CP.1995/7/Add. 1, ¶ 2 (1995); and Decision II/6 adopted by COP2 of the Convention on Biological Diversity, June 5, 1992, U.N. Doc. UNEP/CBD/COP/2/19, Annex II, 49-50 (1995) [hereinafter COP2 of the Biodiversity Convention].
47. See, e.g., International Convention for the Northwest Atlantic Fisheries, Feb. 8, 1949, 1 U.S.T. 477, T.I.A.S. No. 2089, superseded by Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, Oct. 24, 1978, reprinted in 2 SELECTED MULTILATERAL TREATIES IN THE FIELD OF THE ENVIRONMENT 61. See also Convention Between the United States of America and the Republic of Costa Rica for the Establishment of an Inter-American Tropical Tuna Commission, May 31, 1949, 1 U.S.T 230, T.I.A.S. No. 2044; International Convention for the Conservation of Atlantic Tunas, May 14, 1966, 20 U.S.T 2887, T.I.A.S. No. 6767.
48. See, e.g., Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft, Feb. 15, 1972, 11 I.L.M. 262 (1972); Convention for the Prevention of Marine Pollution from Land-Based Sources, supra note 26; and Convention on the Protection of the Marine Environment of the Baltic Sea Area, Mar. 22, 1974, 13 I.L.M. 546 (1974).
49. See UNEP and the Convention Secretariats: The Institutional 'Host' Relationship, U.N. Doc. UNEP/ELI/Coord.2/7 at 9-11 (1995) [hereinafter UNEP and the Convention Secretariats];
50. Coordination of convention secretariats, U.N. Doc. UNEP/GC.19/L.49, ¶ 7 (1997).
51. See Szasz, supra note 16, at 374-75, for a discussion of whether environmental issues should be considered in a specialized or general international organization.
52. In the case of the South Pacific Regional Environment Programme (hereinafter SPREP), for example, the SPREP organization serves as secretariat to three regional conventions: the Convention for the Protection and Development of Natural Resources and Environment of the South Pacific Region, Nov. 25, 1986, 26 I.L.M. 38 (1987); the Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region, see also art. 7(2) of doc. 17 on the diskette accompanying 6 Y.B. INT'L ENVTL. L. (1995);
53. and the Convention on Conservation of Nature in the South Pacific, INTERNATIONALES UMWELTRECHT-MULTILATERALE VERTRÄGE 976:45/1. See also the Agreement Establishing the South Pacific Regional Environment Programme (SPREP), art. 7(2) (Jun. 16, 1993).
54. See Report of the Secretary-General under article 319 of the United Nations Convention on the Law of the Sea, U.N. Doc. SPLOS/6 (1996).