Defining marine pollution : A comparison of definitions used by international conventions

This article investigates the evolution of definitions related to the management of the marine environment between 1954, when the first international convention concerned with marine pollution was signed, to the Law of the Sea Convention of 1982. Emphasis is placed on ethical or ideological concepts that might be implied by the various definitions. The author argues that, over the 30 years, definitions con- verged towards the concept of planned and world-wide melioration as expressed in the United Nations Declaration on the Human Environment. He suggests that the widely-used GESAMP definition does not reflect the concept well and should be upgraded.

Keywords: Marine pollution; International law; United Nations organization

At the time of writing the author was Principal Research Scientist with the CSIRO Division of Oceanography. He is now Senior Lecturer in Physical Oceanography at the University of Sydney, NSW 2006, Australia.

‘For a review of the interplay between scientific progress and legal _ demands, see, Sonja Boehmer-Christiansen. ‘The scientific basis of marine pollution control’, Marine Policy, Vol 6, No 1, January 1982, pp 2-l 0. *An example where this is borne out clearly is the attempt of GESAMP (cf. Ref. 24) to determine principles for developing water quality criteria. GESAMP Reports and Studies, Vol 5, 1976.

Defining marine pollution

A comparison of definitions used by international conventions

M. Tomczak, Jr

It is generally acknowledged that legislation relating to marine pollution should be based on scientifically derived standards. Efforts to provide the scientific basis for pollution control have been impressive, and legislation, though struggling with inadequacies in the scientific understanding of marine pollution,’ proceeded on national and international levels. Underlying these efforts is a definition of pollution accepted by all parties involved. In the case of legal documents this may simply be a working definition for the purpose of the law (although, as we shall see, it invariably reflects an attitude towards social goals and purposes). In reports from scientific working parties it usually is the starting point before science can get to work, ie the framework - set by social, ethical and ideological considerations - which enables the working parties to restrict their attention to the scientific aspects of the problem.

Experience shows, of course, that social or ethical considerations and

scientific procedures cannot be kept apart as neatly as the foregoing suggests.* Problems created by this situation have been reviewed, both by the working parties and by outside researchers. Their discussions mostly concentrated on the problem how the scientific basis for marine pollution control could be improved without undue interference from non-scientific elements. The present review looks at the problem from a different angle, focusing on ethical and ideological values which may have influenced the formulation of definitions of marine pollution. It is hoped that clarification of such influences can help in the drafting and administration of pollution legislation.

Some conceptual considerations

First definitions of marine pollution date back a few decades. As legislators tend to base new regulations on existing laws and agreements, more recent definitions often are identical to, or slightly revised versions of, older definitions. Nevertheless, as we shall see, small amendments to existing definitions can cause considerable argument. To understand the reasons it seems appropriate to establish some framework for the classification and comparison of definitions of

0308-597X/84/04031 l-l 2$03.00 0 1984 Butterworth & Co (Publishers) Ltd 311


3An example is the establishment of nature reserves, national parks, etc. Such areas are exempt from melioration for agricultu- ral or industrial use but usually undergo melioration for recreational uses. They are conserved in as much of a ‘natural state’ (ie untouched by human activity) as is compatible with this use. 4As an example, consider the general objective of the Man and the Biosphere programme of UNESCO, formulated in 1971: ‘to develop the basis within the natural and social sciences for the rational use and conservation of the resources of the biosphere and for the improvement of the global relationship between man and the environment; to predict the consequences of today’s actions on tomorrow’s world and thereby to increase man’s ability to manage efficiently the natural resources of the biosphere.’ The melioration concept is evident from every part of the statement; it can be traced even in the descriptions of recommended projects, such as ‘to identify and assess the changes in the biosphere resulting from man’s activities and the effects of these changes on man;’ and ‘to study and compare the structure, function- ing and dynamics of natural, modified and managed ecosystems’. Compare this with the goal of the International Decade of Ocean Exploration as formulated by the National Science Foundation of the USA (1969), which in respect to the environment states: ‘Preserve the ocean environment by accelerating scientific observa- tions of the natural state of the ocean and its interactions with the coastal margin - to provide a basis for: (a) assessinq and

pollution. The framework suggested here is not restricted to marine pollution, but application will focus on oceanic and estuarine legislation.

A good starting point is the observation that attitudes of people towards pollution issues generally reflect one of three approaches, which can be described as the concepts of melioration, conservation and impact control. Melioration in this context stands for the belief that the aim of human endeavour should be to mould nature to the benefit of humanity; this includes continued and permanent modification on an ever-increasing scale, as determined by the development of science and technology. Conservation stands for the concept that every effort should be made to preserve nature in a state generally considered well- balanced and undisturbed, ie not negatively affected by human activity. Impact control describes the position that nature is a reservoir to satisfy people’s needs, but that care should be taken not to destroy its usefulness by exerting undue stress on its capacity of self-purification.

It is clear that the concepts are not mutually exclusive. Scientific standards derived within the framework of impact control can be useful for conservation purposes, and melioration often includes elements of conservation.” However, they are not completely arbitrary categories but affiliated with different philosophical or ideological positions. If it is accepted for instance that human capabilities of mastering the laws of nature are limited in principle - a view held by many environmentalists - then the concept of global conservation is sound and appropriate, offering a guarantee that human activity will not produce uncontrollable results. If, on the other hand, it is assumed that there are no such limits, then there are no reasons for abstaining from global melioration, at a scale appropriate to the degree of knowledge achieved.

Scientific programmes concerned with environmental issues usually present statements of aims or principles which indicate the position taken by the initiators.3 Legislative texts rarely elaborate on these aspects, but their definitions often reflect the underlying ideological positions.

Different investigators may value the three concepts introduced above differently; but all three lead to acceptable definitions of pollution and therefore are of equal standing in a comparative study. There are other definitions which are not so well-founded and exhibit

predicting man-induced &d naturalmod- ifications of the character of the oceans;

serious flaws in theoretical analysis and practical application. An

(b) identifying damaging or irreversible obvious case is the self-referencing or vicious circle definition.’ Another

effects of waste disposal at sea; and candidate is the definition which replaces the term in question by one or (c) comprehending the interaction of various levels of marine life to permit steps to

more equally undefined terms; its usefulness is debatable6 and depends

prevent depletion or extinction of valuable on implicit assumptions which have to be analysed. For the purpose of

species as a result of man’s activities.’ The this comparison it will be termed the open-ended definition. underlying principle is the conservation concept. Cf M. Waldichuk, ‘International

Some authors do not restrict their deiinition of pollution to processes

approach to the marine pollution problem’, related to human activity but include changes of the ocean from natural

Ocean Managemenf, Vol 1, 1973, pp processes.’ Such definitions exhibit flaws when tested for rigour, 211-261. ‘Pollution = discharge of polluted water; cf

because they are based on an implied understanding of a ‘natural state’

K. Baalsrud, ‘Pollution of sea water’, in which can be ambiguous. For example, the consequences of a volcanic

F.E. Firth, ed, The Encyclopaedia ot eruption on marine life could be called pollution if the effects are Marine Resources, Van Nostrand, New considered in relation to the situation before the event. If ‘natural state’ York, 1969, p 543. %f James Barros and Douglas M. John- is understood as describing the state of the ocean over centuries (which

ston, The lnfernafional Law of Pollution, is the appropriate time scale for the ocean), a volcanic eruption becomes The Free Press, New York, 1974, p 3. 7Cf Donald W. Hood, impingement of Man

part of the geophysical-chemical system which determines the natural

on the Oceans, Wiley-Interscience, New state. Definitions which operate on implicit assumptions of time scales

York, 1971, p 1. Also ibid, p XV. and natural states will be referred to here as time-scale dependent. The

312 MARINE POLICY October 1984


ambiguity inherent in such definitions does not occur if pollution is

understood to be a result of human activity only. Finally, a whole class of legislative texts on marine pollution is

excluded from the comparison if it is based strictly on the definition of pollution. Many texts do not attempt such a definition but operate on the basis of definitions for waste or hazardous substances. Whatever the detailed definition of hazardous, toxic, noxious, etc, it is clear that legislation based on such terms reflects the concept of impact control. The situation with waste is less clear; waste is not necessarily hazardous. A brief discussion of the ideological elements involved in such definitions is therefore necessary.

Generally speaking, waste is a by-product of all industrial activity (industrial taken here in its widest sense, as human interaction with nature aimed at producing certain goods), ie it is a necessary result of the industrial process if its aim - production of the target product - is to be achieved. However, not every by-product is waste; many by-products find useful application in other industrial processes. Whether a by-product is considered waste or not depends on various factors which are not directly related to science, such as technological development,8 the state of the economy,” etc. Thus, while use of the term waste acknowledges the link between pollution and human activity, it is of dubious value for legislative purposes because its meaning changes with the tides of the world market. As we shall see, legislation for pollution control which operates on a definition of waste circumvents this by defining it in terms of other categories.

In summary, conceptual arguments suggest that definitions employed in pollution legislation can be grouped in categories as shown in Table 1. As discussed above, category B forms a subgroup of A3 for all practical purposes; but at this level of the discussion it is kept separate because of the different concept involved.

Definitions of marine pollution

‘For example, mineral waste is often re- This section analyses definitions used in conventions and treaties of worked to ;elease more valuable mineral when new technology becomes available.

international chaiacter or relevant to oceanic areas of international

gNatural gas, which occurs as a by-product importance. The list is not complete; in particular, it does not include of oil production, is either flared off or used conventions concerned with pollution from specific substances (eg oil), as a source of energy, depending on the world market situation.

as there is no need in such texts for a general definition of pollution,

‘She first multilateral instrument con- waste or hazardous matter. Emphasis is placed on developments in the eluded with the prime objective of pollution concepts employed, and where discussion of national texts, proposals control was the International Convention for the Prevention of Pollution of the Sea

from non-goiernment organizations or consultative bodies is &eful for

by Oil, concluded in 1954, ie four years the purpose of the study they are included. The study covers 25 years of before the first Convention discussed here. marine environmental legislation.“’ The progress achieved in the

Table 1. Classification of concepts invoked in pollution legislation.

Category

(A) Derived from concepts of human activity and nature

(B) Derived from concepts of industrial activity

(C) Ill-founded concepts

Concept

At : Melioration A2: Conservation A3: Impact control

Bl : Waste management 82: Hazardous substances

Cl : Self-referencing C2: Open-ended C3: Time-scale dependent

MARINE POLICY October 1984 313


“Convention on the Territorial Sea and Contiguous Zone, United Nations Secre- tariat, Treaties Series 516, 1966, pp 205- 223; Convention on the Continental Shelf, 499,1964, pp 31 l-320; Convention on the High Seas, 450, 1963, pp 82-l 02; Con- vention on Fishing and Conservation of the Living Resources of the High Seas, 559, 1966, pp 285-300. For an assessment of the political impact of these conventions see, M. Tomczak Jr, Das Ende der im- perialistischen Seeherrschatl naht, Send- ler, Frankfurt, 1977, 209 pp. “The Convention on the High Seas refers to pollution from oil and pipelines or pollution related to exploration and exploitation of the seabed and its subsoil (Article 24) and to pollution from radioactive materials (Article 25) but does not consider marine pollution in other areas. j3The Convention came into force in 1966 but has had very little impact on deep-sea fishing. Other international agreements that dealt with individual or groups of species were more successful.

attempts to arrive at a conceptually sound yet practical and workable definition of pollution becomes evident when the various examples are studied in chronological order.

Geneva Convention on the Continental Shelf (1958)

Of the four conventions” adopted at the Geneva Convention on the Law of the Sea of 1958, the Convention on the Continental Shelf was the only one to address pollution in a general manner.12 Its Article 5 mentions ‘unjustifiable interference with navigation, fishing or the conservation of the living resources of the sea’ as a possible result of exploration and exploitation of natural resources which must be avoided. It also states an obligation of coastal states to ‘undertake all appropriate measures for the protection of the living resources of the sea from harmful agents’. No attempt is made to define ‘harmful’ or ‘agent’. The concept of the Convention is impact control, expressed through ‘protection from harmful agents’. It therefore falls into category B2, a subset of A3. The mention of conservation - which is stronger than protection - does not justify classification as A2 because it is not applied to marine life in general but only to living resources; thus, the underlying concept is not the conservation of nature in a well-balanced state but the idea of nature as a reservoir.

Geneva Convention on Fishing and Conservation of the Living Re- sources of the High Seas ~~958)

This Convention presents the only attempt so far to protect, by international agreement, marine life of the open ocean from overexploitation. ” Article 2 defines the ‘conservation of the living resources of the high seas’ as ‘the aggregate of the measures rendering possible the optimum sustainable yield from those resources so as to secure a maximum supply of food and other marine products’. It further states that ‘conservation programmes should be formulated with a view to securing in the first place a supply of food for human consumption’. Pollution is not explicitly mentioned in the Convention, and where conservation is mentioned it is with reference to activities of the fishing industry. Although somewhat out of place in the context of this study, the Convention offers an interesting example of the interrelationships between the concepts discussed earlier and the corresponding derived categories. By declaring the optimum sustainable yield as its target, the Convention does not apply conservation with the intent of guaranteeing the maintenance of the present state or re-establishing a situation lost through harmful fishing activity of the past, but as a means to improve the use of oceanic resources. This could make it a candidate for category Al. On the other hand, its approach is determined by the aims and needs of industry, and melioration as expressed in the Convention is restricted to improved harvesting. Other considerations, which go beyond direct economic argument, such as those surfacing in the debate about the harvesting of whales or fur seals, are excluded. (The qualifier ‘in the first place’ is only meant to set priorities between food supply for human and animal consumption and not intended to allow for such other considerations.) This indicates that the underlying concept is not the attempt to improve all aspects of the oceanic environment but an attempt to improve the situation of the fishing industry. The Convention therefore cannot be classified as Al. It is classified as B, a subset of A3.



Arctic Waters Pollution Prevention Act (Canada} (1970)

This is a national text’” concerned with an oceanic area of international importance. Although somewhat out of place in a discussion of international conventions, it serves here as an example of a text that operates on a definition of waste. Waste is described in the Act as:

(i) any substance that, if added to any waters, would degrade or alter or form part of a process of degradation or alteration of the quality of those waters to an extent that is detrimental to their use by man or by any animal, fish or plant that is useful to man, and (ii) any water that contains a substance in such a quantity or concentration, or

that has been so treated, processed or changed, by heat or other means, from a natural state that it would. if added to any waters, degrade or alter or form part of a process of degradation or alteration of the quality of those waters to an extent that is detrimental to their use by man or by any animal, fish or plant that is useful to man.

Two aspects may be noted: under the terms of the definition, waste is considered waste only if it degrades or detrimentally alters water quality. This effectively replaces the category waste by the more manageable category detrimental substance, thus eliminating all factors related to the economy from the definition. Also, under the terms of the definition, reference to ‘detrimental’ is restricted to the use of water by man or by creatures useful to man. This is not a very sound concept, as creatures thought to be useless today may turn out to be useful tomorrow, and the ensuing court case could easily develop into a nightmare. More importantly for this study, it testifies to the underlying concept of nature as a reservoir for industry, which contains useful and useless creatures. The Act is only concerned about a part of nature, not its entirety. It falls into Bl, as a subset of A3.

Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft (1972)

This Convention” regulates the dumping of matter from ships and aircraft for parts of the North Atlantic Ocean and Arctic Waters, by stipulating permit requirements for wastes and banning the dumping of certain substances. Its legislation covers the dumping of all substance or _ I

140p cif, Ref 6, pp 262-276. material,‘” using a combination of the terms pollution, hazardous

15Bernd Riister, Bruno Simma and Michael substance and waste. It does not attempt to define any of its terms,

Bock. eds. lntemational Protection of the although its Article 1 can be regarded as an early version of later En&nm&t, Treaties and Related Docu- merits, Oceana Publications, Dobbs Ferry,

pollution definitions. ” It falls into category Bl (A3).

NY, Vol2, pp 530-536. 16Article 7: ‘No substance or material shall London Convention of the Prevention of Marine Pollution by Dumping be dumped without approval of the of Wastes and Other Matter (1972) appropriate national authority or author- itinn ’ This Convention, which was signed only a few months after the Oslo ._.__. 17Article 1: ‘The Contracting Parties Convention and shows a similar overall structure,‘” is superior in that it pledge themselves to take all possible steps to prevent pollution of the sea by

defines at least one of its terms: “Wastes or other matter” means

substances that are liable to create material and substance of any kind, form and description’. This is the

hazards to human health, to harm living opposite to the approach seen in the Arctic Waters Act, where waste resources and marine life, to damage amenities or to interfere with other legiti-

was reduced to detrimental substance. In fact, it defines every

mate uses of the sea’. The influence of non-living object as waste and is not a significant achievement. In GESAMP is obvious. practice, the Convention operates on lists of ‘wastes or other matter’ 180p tit, Ref 15, Vol 2, pp 537-547. In 1

.

particular, its Article 1 repeats the text on classified through their hazardous nature and makes the appropriate

pollution of Ref 17, replacing ‘substances’ regulations by reference to the lists. Thus, the definition of waste is of

by ‘waste and other matter’. no significance for the operational procedures. The terms pollution,



noxious and hazardous matter are also invoked but not defined. The Convention belongs to category Bl (A3).

International Convention for the Prevention of Pollution from Ships (1973)

This Convention’” 1s based on the same concepts as earlier conventions but offers significant improvements in structure: the term ‘waste’ is abandoned, and the text operates exclusively on ‘harmful substance’, defined as ‘any substance which, if introduced into the sea, is liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea, and includes any substance subject to control by the present Convention’. The text is taken from the introductory articles of the Oslo and London Conventions but promoted from a descriptive introduction to a binding definition. The introductory statement of the Convention refers simply to ‘pollution of the marine environment by the discharge of harmful substances or effluents containing such substances’. The term ‘pollution’ is thus used but qualified by reversion to the definition of harmful substance; and as it is not used elsewhere in the Convention, lack of a proper definition of pollution is not significant. The Convention is the last in a group, represented by items 3 to 6 in Table 2, which is based on the concept of impact control and operates on a definition of terms other than ‘pollution’ or environment-related terms. Within the group, it offers the clearest structure by defining, and exclusively operating on, the single term (harmful, hazardous, etc) which in the end forms the basis of all texts of the group. It is classified as B2 (A3).

Convention on the Protection of the Environment between Denmark,

Finland, Norway and Sweden (1974)

This Scandinavian Convention2” regulates pollution of various kinds,

including marine pollution in waters over which a contracting state exercises jurisdiction. It is based on the concept of impact control but does not fall into any of subcategories B because it does not operate on the respective terms (waste, hazardous substances, etc). Instead, it establishes the right of individuals to defend themselves by legal action against nuisance caused by environmentally ‘harmful activities’, such activities being defined as ‘the discharge from the soil or from buildings or installations of solid or liquid waste, gas or any other substance into watercourses, lakes or the sea and the use of land, the seabed, buildings or installations in any other way which entails, or may entail, environmental nuisance by water pollution or any other effect on water conditions, sand drift, air pollution, noise, vibration, changes in temperature, ionizing radiation, light, etc’.

190p tit, Ref 15, Vol 2, pp 552-563. “Op tit, Ref 15, Vol 1, pp 70-76.

The definition is vague to an extent that appears deliberate. It makes reference to waste and pollution without offering definitions of these terms. As it stands, it makes it difficult to decide whether introduction of a term related to the environment (environmental nuisance) is meant to provide protection that goes beyond prevention of detrimental action (eg protection against non-detrimental occasional irritation). The difference, if any, seems to be gradual and does not justify classification into A2 or Al. The Convention is classified A3.


*‘Op tit, Ref 15, Vol 19, pp 9614-9615. The definition appears to be modelled on the definition of pollution for rivers from the 52nd Conference, although the earlier definition included a reference to human activity as a prerequisite for pollution. See, P. van Heijnsbergen, ‘The “Pollution” concept in international law’, Environmental Policy and Law, Vol 5, 1979, pp 11-13. “Op tit, Ref 15, Vol 19, pp 9641-9642. It goes without saying that in practical ap- plications elements of A3 have to be used, even if the basic definition is of Al. The Draft Rules stipulate that a State ‘shall prevent any new form of continental pollution or any increase in the degree of existing continental pollution’ (where continental refers to the origin of the pollutant found in the sea) and ‘should take all reasonable measures to abate existing continental pollution’.


Draft Rules on Sea Pollution (International Law Association, 53rd Conference, 1968)

The various drafts for legislation in relation to marine pollution which were prepared by the International Law Association did not receive the attention they deserved at the time. Chronologically, they rank before items 4 to 7 in Table 2, but they offer distinctly different, and in some respects superior, attempts to arrive at theoretically sound definitions. It is therefore appropriate to discuss them in this context, even though they are formulated by a non-government professional body and not binding for international law.

In the Draft Rules on Sea Pollution*’ of 1968, pollution is defined as ‘any detrimental change in the natural composition, content or quality of the waters of an international drainage basin’. Apart from the unnecessary introduction of the drainage basin (which the Draft Rules define separately), this definition is remarkable in several respects. First, it does not refer to any resources or hazards to human health but is solely concerned with water quality. In contrast to all earlier items, which saw pollution only where there was human use of the sea, this definition does not consider such use a prerequisite for pollution to occur. Note also that it does allow deliberate changes of the quality of sea water if their effects are positive rather than detrimental. It therefore appears to be based on a concept that clearly surpasses impact control. The difficulty is that the definition as it stands does not exclude changes of water quality caused by natural processes, which puts it into the ill-founded category C3. Its theoretical concept, however, can be classified as Al.**

Draft Articles on Marine Pollution of Continental Origin (International L,aw Association, 55th Conference, 1972)

The Articles resulting from the 55th Conference** remedied the shortcoming of the Draft Rules, by defining ‘continental sea-water pollution’ as ‘any detrimental change in the natural composition, content or quality of sea water resulting from human conduct taking place within the limits of the natural jurisdiction of a State’. It then lists examples of the type of conduct that could be involved, such as ‘the discharge or introduction of substances’ (note that the ambiguous term waste is avoided) ‘directly into the sea from pipelines, extended outlets, or ships, or indirectly through rivers or other watercourses whether natural or artificial, or through atmospheric fall-out’.

It is questionable whether the list of conducts, being concerned with situations which call for impact control, adds much to the usefulness of the definition. The definition itself, however, qualifies for category Al.

The GESAMP definition

The definition which has become the probably most widely used definition of marine pollution today was introduced by the Joint Group of Experts on the Scientific Aspects of Marine Pollution (GESAMP). The Group was set up as a permanent working party in 1969 by IMCO (now IMO), FAO, UNESCO and WMO, to advise the sponsoring organizations on matters related to marine pollution; today, it is sponsored by eight international agencies (IMO/FAO/UNESCO/ WMO/WHO/IAEA/UN/UNEP). The status of GESAMP is thus one of


Defining marine polluiion

23’Report of SCOFVACMRR working group 22 on Marine Pollution’, SCOR Proceed- ings, 3, 7967, pp 22-30. SCOR is a committee of the international Council of Scientific Unions. 24Velimir Pravdic, GESAMP, the firsf dozen years, UNEP, 1981. 25This was also pointed out by Boehmer- Christiansen, op tit, Ref 1. 260p tit, Ref 15, Vol 2, pp 748-762. *‘The Preamble mentions ‘the ecological equilibrium’ as being increasingly threatened by pollution; and Article 6 states that the Contracting Parties should act ‘with a view to preserving and enhanc- ing the quality of the marine environment’.

an advisory group to non-government organizations; but its definition of

marine pollution has entered, in one form or another, into so many conventions that it seems entirely justified to include it in that category. GESAMP was provided with a definition of marine pollution produced by an ad hoc working group of the Scientific Committee of Oceanic Research (SCOR) at the request of the Intergovernmental Oceanog- raphic Commission (IOC) of UNESCO. The proposed definition, which was drafted in 1966, read: ‘Introduction by man of substances into the marine environment resulting in such deleterious effects as harm to living resources, hazards to human health, hindrance to maritime activities including fishing, and reduction of amenities’.23

The formulation testifies to the underlying concept of impact control. GESAMP changed the text slightly but apparently did not challenge the underlying concept. Its definition, which is still the official GESAMP definition today, reads: ‘Pollution means the introduction by man, directly or indirectly, of substances or energy into the marine environment (including estuaries) resulting in such deleterious effects as harm to living resources, hazards to human health, hindrance to marine activities including fishing, impairment of quality for use of sea-water, and reduction of amenities’.24

GESAMP has repeatedly considered requests for changes in its definition but has refused to oblige because it considered the proposed amendments to lack scientific exactness. This argument suggests that GESAMP values its definition as more scientific than others. This is true for definitions of category C, but none of the proposed amendments fell into that category. Compared with definitions of categories A and B, the GESAMP definition is not more scientific than others. Deleterious effects, harm and hazards are not objective scientific

concepts,“5 and the fact that the GESAMP definition falls into category A3 (and not into Al or A2) indicates that an ethical or ideological (ie non-scientific) concept is involved.

Paris Convention for the Prevention of Murine Pollution from Land- Based Sources (1974)

This Convention,26 which covers the same ocean area as the Oslo Convention, illustrates the point just discussed with the GESAMP definition, Its definition reads: ‘The introduction by man, directly or indirectly, of substances or energy into the marine environment (including estuaries) resulting in such deleterious effects as hazards to human health, harm to living resources and to marine eco-systems, damage to amenities or interference with other legitimate uses of the sea’.

It is obvious that the GESAMP definition served as a model, but the changes are indicative of a different approach to the pollution probIem. Inclusion of marine eco-systems, whether subjected to human usage or not, points towards the concept of conservation of a well-balanced state. Other parts of the Convention bear this out more clearly.27 Thus, despite its similarity to the GESAMP definition and comparable scientific rigour, the definition expresses a different concept. It is classified as A2.

The Convention was intended to supplement the Oslo Convention, but the improvement from 1972 to 1974 is dramatic. Terms such as waste or hazardous substance are no longer used.



Convention on the Protection of the Marine Environment of the Baltic Sea Area (1974)

The Baltic Sea is among the most heavily polluted areas of the world ocean. The name of the Convention makes it a candidate for A2 classification, but its text makes it clear that it sees protection as part of an overall melioration strategy.

The Convention28 defines marine pollution as ‘introduction by man,

directly or indirectly, of substances or energy into the marine environment, including estuaries, resulting in such deleterious effects as hazard to human health, harm to living resources and marine life, hindrance to legitimate uses of the sea including fishing, impairment of the quality for use of sea water, and reduction of amenities’.

As in the Paris Convention, inclusion of marine life or marine ecosystems makes the definition independent of actual or intended human usage of the sea and its contents. The underlying concept is borne out by the Preamble when it states that it is ‘the responsibility of the Contracting Parties to protect and enhance the values of the marine environment of the Baltic Sea Area for the benefit of their peoples’. Enhancement of the quality of the marine environment is also mentioned in the Paris Convention as a general view that should be taken when reducing existing pollution and forestalling new pollution, but that Convention does not oblige the Contracting Parties to go beyond pollution abatement and towards melioration of the unpolluted state of the sea. In contrast, Article 3 of the Convention for the Baltic Sea stipulates that ‘the Contracting Parties shall individually or jointly take all appropriate legislative, administrative or other relevant measures in order to prevent and abate pollution and to protect and enhance the marine environment of the Baltic Sea Area.’ Thus, pollution abatement is only one aspect of the Convention. Enhance- ment of the marine environment is the other aim, and it is not restricted to achieving a lost equilibrium but can include the search for new

equilibrium states of higher benefit to humanity. The convention is therefore classified Al.

When it comes to practical regulations, the Convention restricts itself to pollution control and employs a rather curious mixture of its own concept and concepts used in earlier texts. It operates mainly on the term ‘hazardous substance’ which it defines by reference to pollution as ‘any hazardous, noxious, or other substance, which, if introduced into the sea is liable to cause pollution’. Use of the simple term ‘substance’ would have done.

Convention for the Protection of the Mediterranean Sea Against Pollution (1976)

This Convention29 uses the GESAMP definition without the two words in brackets. It is accordingly classified as A3.

Kuwait Regional Convention for Co-operation on the Protection of the Marine Environment from Pollution (1978)

This Convention,30 which covers the Arabian or Persian Gulf, the Gulf of Oman and the offshore waters of Oman in the Arabian Sea, again uses an amended version of the GESAMP definition: ‘Marine pollution means the introduction by man, directly or indirectly, of substances or energy into the marine environment resulting or likely to result in such

“Op tit, Ref 15, Vol 2, pp 683-693. 2gOp tit, Ref 15, Vol 19, pp 9497-9505. 3oOp tit, Ref 15, Vol 19, pp 9551-9568.



deleterious effects as harm to living resources, hazards to human health, hindrance to marine activities including fishing, impairment of quality for use of sea water and reduction of amenities.’ The formulation ‘resulting or likely to result’ was judged non-scientific by GESAMP ‘because the need for scientific exactness requires strict proof. and probability of an event should not be used as the scientific basis for mitigation of anticipated damage’.“’ In fact, one definition is as scientific as the other, and the difference is one of concepts. In the case of the Kuwait Convention, the various statements of intent and principles tend to confuse the issue, by raising points such as urban, rural, and industrial development which could cause damage to the marine environment and call for preservation ‘as far as possible’. This could give the impression that the concept of melioration is applied to the land, while the sea is only passively involved, ie seen from the perspective of conservation. However, the Convention then recognizes ‘the need to develop an integrated management approach to the use of the marine environment and the coastal areas which will allow the achievement of environmental and development goals in a harmonious manner’. It is thus clear that it describes the concept of melioration as seen from the position of the Third World, where melioration of the land still has a long way to go and melioration of the marine environment is a task for the far future. To include substances likely to result in adverse effects in the definition of marine pollution is an appropriate expression of concept Al under such circumstances.

Convention for Co-operation in the Protection and Development of the marine Environment of the West and Central Africans Region ~~9~~~

What was said about the Kuwait Convention equally applies to this ConventionJ2 which covers the coastal zones and related inland waters of west Africa from Mauritania to Namibia: it aims at ecologically sound management of the environment but refers to a variety of goals and

concepts as well. Mention is made of the economic, social and health

3’Op tit, Ref 24, p 13. It appears that value of the marine environment (concept: nature as a reservoir, A3), GESAMP did not draw a clear distinction between ‘substances likely to result in

preservation of the national heritage, ecological equilibrium (concept:

deleterious effects’ and ‘substances liable conservation, A2), the need for sustainable, environmentally-sound

to create deleterious effects’. a formulation development (concept: melioration, Al). It appears that the drafting used by several earlier texis (eg item 6, item i2 in Table 2). Historically, international pollution law started by emphasizing and guarding freedom of action at sea for all sovereign states, restricting their responsibility to compensation for damage and not asking them to desist from damaging activity. Use of the formulation ‘liable to result in . .’ in early texts has to be seen as an expression of the legal concept of state responsibility to damage actually caused and provable, as opposed to the underlying ethical or ideological concept of impact control which governs these early texts. In contrast, the formulation ‘likely to result in . .’ aims at expressing the ethical or ideological concept of conservation. Arguing about the lack of precision with respect to investigation of damage therefore misses the point. The author gratefully acknowledges comments received from an anonymous referee on this point. 321nternational Legal Materials, Vol 20, 1981, pp 746-756.

party collated statements on marine pollution from various sources without much thought about their background. This would explain why an otherwise melioration-oriented text uses the GESAMP pollution definition unchanged (apart from replacing ‘including estuaries’ by ‘coastal zones, and related inland waters’ to adapt it to regional application).

Based on its definition, the Convention falls into category A3. The decisive evidence for its intentions, however, can be found in its definition of the general obligations of the Contracting Parties, which are ‘to prevent, reduce, combat and control pollution of the Convention area and to ensure sound environmental management of natural resources.’ With some doubt, this suggests classification as Al. Because of the A3 character of its definition, it is classified as A3/1.

The Law aj’ the Sea Convention (1982)

The definition of marine pollution of the Law of the Sea Convention underwent a series of changes before it was finally adopted, reflecting development in environmental law between the various sessions of the



33’Conservation of the marine environment United Nations Law of the Sea Conference (UNCLOS), and the means the aggregate of measures taken to render possible the maintenance of the natural quality, productivity and the ecological balance of the marine environment. ’ ’ Marine pollutant means any substance or energy which if introduced to the marine environment results in such deleterious effects as harm to the living resources; hazard to human health, hindrance to marine activities, reduction of marine amenities and impairment of the quality for use of the marine waters.’ Op tit, Ref 15, Vol 2, p 891. The influence of the GESAMP definition in the second part is obvious. 34For example Belgium; op cit. Ref 15, Vol 19, p 9643. 350p tit, Ref 15, Vol 19, p 9645. 360p tit, Ref 15, Vol 19, p 9686. 37Article l(4), UN Convention on the Law of the Sea, A/CONF.61/122, 7 October 1982. 38Article 192 of the convention imposes on states ‘the obligation to protect and preserve the marine environment’. 390p cif, Ref 15, Vol 2, pp 118-l 46. The Declaration shows an excellent perception of concepts involved in environmental issues, including social and economic factors, and would make good reading for conservationists of any description. 40’0f all things in the world, people are the most precious. It is the people that propel social progress, create social wealth, develop science and technology and, through their hard work, continuously transform the human environment. Along with social progress and the advance of production, science and technoloov. the capabilitv of man to improve the enironment ‘increases with each passing day. Through ignor- ance or indifference we can do massive and irreversible harm to the earthly environment on which our life and well-being depend. Conversely, through fuller knowledge and wiser action, we can achieve for ourselves and our posterity a better life in an environment more in keeping with human needs and hopes. There are broad vistas for the enhancement of environmental quality and the creation of a good life’. 4”Man has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat, which are now gravely imperilled by a combination of adverse factors. Nature conservation, including wildlife, must therefore receive importance in planning for economic development.’ 42’The discharge of toxic substances or of other substances and the release of heat, in such quantities or concentrations as to exceed the capacity of the environment to render them harmless, must be halted in order to ensure that serious or irreversible damage is not inflicted upon ecosystems.’ Not being of legal character, the Declara- tion does not contain explicit definitions, but it makes use of the GESAMP text to describe pollution: ‘States shall take all

continued on p 322

different concepts of the nations involved. Kenya submitted a draft

which define b both pollution and conservation and was a well-

formulated expression of the conservation concept (A2).‘3 Others proposed the use of ‘waste’ without offering a definition.“4

It appeared at an early stage that the final outcome would be a modified version of the GESAMP definition, without further definitions of additional terms. The contest of concepts subsequently took the form of amendments to the GESAMP definition. At the Third Session of UNCLOS III in 1975, marine activities included ‘fishing and other legitimate uses of the sea . ’ X.5 At the Fourth Session in 1976, the Kuwait

formulation ‘which results or is likely to result’ was introduced.‘h The final definition as accepted in 1982 adds ‘marine life’ to ‘living resources’ and thus reads: ‘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.‘“’ The terms toxic, harmful and noxious substances are retained in other parts of the text undefined.

The amendments to the original draft put the definition into category A2. It is likely that some of the amendments were proposed with concept Al in mind. The Baltic Sea and Kuwait Conventions provide examples of the compatibility with the concept. The Convention does not include a declaration of principles on the environment’x and leaves the association open. The definition is therefore classified A2/1.

Conclusion

Table 2 summarizes the discussion of, and findings from, the various definitions. It shows that significant development occurred during the past 25 years. Ill-founded concepts have been abandoned; concepts based on industrial activity, which led to the use of waste or hazardous substance as the primary definition, have been replaced by concepts of interdependence of human activity and nature; and within this category there is a tendency to turn away from impact control to conservation or melioration.

Evaluation of this development depends on the attitude taken towards the ethical and ideological positions involved. The position adopted for this review follows the 1972 Declaration of the United Nations Conference on the Human Environment, which characterizes the human being as ‘both creature and moulder of his environment’.3” It is based on the concept of continuous melioration as the basis of the well-being of peoples4” which includes ‘intellectual, moral, social and spiritual growth’. Protection and improvement of the human environment are described as ‘the urgent desire of the peoples’ and ‘the duty of all governments’. Conservation is introduced as a particular aspect of melioration,4’ and pollution control is seen as a necessary action to achieve both conservation and melioration. Impact control fits into this framework as the minimum necessary action but does not form the final aim of pollution prevention.42

Using the described concept as a basis for an evaluation, the development seen in Table 2, which indicates a move from A3 to A2 to



Table 2. Summary of comparison of texts considered.”

(1) (2)

(3) (4)

(5)

(‘3) (7)

(8) (9) (10) (11)

(12)

(13) (14)

(15)

(16)

Text

Geneva Convention on the Continental Shelf Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas Arctic Waters Pollution Prevention Act Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter International Convention for the Prevention of Pollution from Ships Convention on the Protection of the Environment between Denmark, Finland, Norway and Sweden

Draft Rules on Sea Pollution Draft Articles on Marine Pollution of Continental Origin GESAMP definition

Paris Convention for the Prevention of Marine Pollution from Land-Based Sources Convention on the Protection of the Marine Environment of the Baltic Sea Area Convention for the Protection of the Mediterranean Sea Against Pollution Kuwait Regional Convention for Co-operation on the Protection of the Marine Environment from Pollution Convention for Co-operation in the Protection and Development of the Marine Environment of the West and Central African Region Law of the Sea Convention (+ = draft paper, not included in final version)

Year

1958

Terms usedb

h

1958 1970 Pw

pwh

pwh ph

W

1972 c2

1972 1973

W

h

1974 pwe e c2 1968 P P c3 1972 P P 1969 P P

1974

1974 1976

pe P

ph ph P P

1978 Pw

1981 P 1982 phe+

P

P pe+

Terms Category

(W (A3)

B (A3) Bl (A3)

(Bl) (A3)

Bl (A31 82 (A3)

(A3) (Al) Al A3

A2

Al A3

Al

A311 A2/1

“Texts listed in italics are national texts: indented titles are texts proposed by non-government organizations. ‘Pollution = p, waste = w, harmful, noxious or toxic agents or substances, etc = h. terms related to environment = e. For explanation of categories see Table 1

continued from p 321 possible steps to prevent pqllution of the seas by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.’ 43This is not necessarily the conclusion reached when the development is seen from the point of view of legal practicability. A.L. Springer, ‘Towards a meaningful concept of pollution in international law,’ Inter- national and Comparative Law Quarter/y, Vol 26, 1977, pp 531-557, argues that a pr&gmatic definition of ‘waste’ or ‘hazardous substance’ can be preferable to a vague definition of ‘pollution’. The argument put forward here is that such appa- rent alternatives point towards unresolved problems in the ethical or ideological back- grounds of the texts involved. When they are resolved and the descending sequ- ence melioration - conservation - impact control is applied, definitions can be equally practicable on all levels.

Al, can be described as a positive shift.43 It is unfortunate that the GESAMP definition, which in. its original form does not go beyond concept A3, has had such an influence on all attempts to arrive at definitions for pollution legislation. An alternative and appropriate method could have been to follow the UN Declaration on the Human Environment and formulate definitions for environmental management (ie melioration), conservation and pollution in that order. Legislation on pollution could then use these definitions for declaring melioration as the overall aim of pollution control; describing those actions deemed to be pollution for the purpose of the legislation; and regulating the details of impact control, pollution abatement and pollution prevention as appropriate.

Early attempts to follow this approach, such as the Kenyan draft for the Law of the Sea Conference, were not flawless but would have been worth pursuing. Instead, efforts concentrated on amendments to the GESAMP definition - an undertaking of doubtful value, because it aimed at accommodating three successively narrower definitions (melioration, conservation and impact control) in a single definition. That the term selected for the attempt belonged to the narrowest of the three categories did not help. The result, in the Law of the Sea Convention, bears the marks of the painful process.

It would be impractical and counterproductive to abandon the definition as it stands. There is also no need to do so. What seems advisable and useful is the formulation and adoption of general definitions for melioration (or environmental management) and conservation. The Law of the Sea Convention definition of pollution could act as the complementary definition on the (lowest) level of impact control; its formulation could be amended in due course to bring it into line with the terms used in the wider definitions. As an immediate step, GESAMP should adopt the Law of the Sea Convention definition.


Documents

Defining marine pollution : A comparison of definitions used by international conventions