International action on ship-generated oil pollution

Marine Pollution Bulletin

Viewpoint is a column which allows authors to express their own opinions about current events.

International Action on Ship-Generated Oil Pollution BARONESS W H I T E

The n u m b e r o f international agreements regulating shipgenerated pollution has increased so dramatically in recent years that if the quantity were a guarantee of quality, the world's oceans would have become much purer than they are at present. The problem of the protection o f the marine environment has in fact become more serious than ever. There is clearly something wrong with the system and I have been given the difficult task of trying to identify the deficiencies. I shall not engage in an extensive analysis of international and regional agreements, not only because they have already received much attention in previous issues of the Marine Pollution Bulletin, but also because control of marine pollution is a most complex conglomerate of scientific, legal, economic and political issues. Any attempt to deal with one factor in isolation is bound to obscure the problem and render its solution m o r e difficult. It is neither fashionable nor popular to admit at the outset that the protection o f the marine environment evolves primarily around the question o f costs. Even in areas where current technology is inadequate to provide answers to all the problems, this could no doubt be remedied if any given State, or the international community as a whole, were prepared to invest sufficient funds. But while after the 1972 Stockholm Conference on the H u m a n Environment and the setting up of the United Nations Environment P r o g r a m m e (UNEP) it is acknowledged as beyond argument that prevention of pollution is a problem which all countries have a duty to solve, it is a simple reality of life that claims for finances to support environmental protection must compete with other claims which are submitted to the Exchequer. Even in developed countries many will argue that there are issues with higher priority than pollution control. In developing countries, the economics of the protection of the marine environment are a serious deterrent. At meetings of the Sea-Bed Committee (United Nations Committee on the Peaceful Uses of the Sea-Bed and the Ocean-Floor beyond the Limits of National Jurisdiction) which paved way for the Third United Nations Conference on the Law of the Sea ( U N C L O S III) and at the sessions of U N C L O S III itself, the States concerned made it clear that they will adhere to provisions of international conventions only if pollution standards are adopted which take into account their level of economic development, and if the much debated issues of transfer of technology and technical aid are translated into reality. 54

Baroness White is a member of the Royal Commission on Environmental Pollution, Chairman of the Advisory Committee on Oil Pollution of the Sea, and President of the Council for the Protection of Rural Wales.

It is significant that the Barcelona Convention of 1976 concerning the Mediterranean area, which includes a number of developing States, makes specific reference to the need to take levels of economic development into account, whereas the Helsingfors Convention of 1974 on the Baltic makes no such requirement, as all the participants are industrially advanced. The battle against pollution can progress only as far as those who hold the purse-strings permit. Pressure groups can try to ensure that the Government pays environmental issues the attention they deserve, but economic difficulties remain the most powerful constraint. A further limitation is the lack of scientific or technical knowledge. T o o little is known, for example, about the sub-lethal toxic effects of oil on marine organisms. Argument continues, too, about the efficacy of chemical versus mechanical clean-up methods. Even the principal international forum for such discussions, the InterGovernmental Maritime Consultative Organization (IMCO), cannot provide conclusive evidence of the degree of damage caused by various dispersants in differing physical conditions as the Canadian submission o f 6 May, 1976 to the fifth session of I M C O ' s Marine Environment Protection Committee (MEPC) makes clear. We will have much to learn. Meanwhile, these areas of uncertainty provide politicians with excuses for inaction. Furthermore, had scientific opinion been adequately consulted, it is doubtful if international efforts at marine pollution control would have followed the lines adopted in the post-war period. The greatest attention has been devoted to oil pollution, although oil is far less toxic than some other materials transported by sea. The first major international provision dealing with toxic chemicals was not until the Oslo Dumping Convention of February 1972, which was quickly followed by the more comprehensive London Convention in November 1972. First steps to deal with radioactive waste concentrated in the Paris Convention of 1960, London Convention of 1962 and Vienna Convention of 1963)on financial aspects rather than on physical controls, which were left to the London Convention. On the other hand by 1954 the international community was sufficiently concerned about oil pollution to promulgate the International Convention for the Prevention of Pollution of the Sea by Oil. A first attempt

Volume 8/Number 3/March 1977 to deal with the matter internationally was at the abortive Washington Conference on marine oil pollution in 1926. The popular dislike of oily beaches and the distress caused by oiled seabirds brought political pressures to bear which were lacking in relation to other substances, even at a time when international trade in oil was a mere fraction of later oil transportation. Effort has been concentrated on ship-generated oil pollution regardless of the fact that in industrialized countries, considerably more oily waste reaches the marine environment from land-based sources than from ships. The estimates of actual amounts vary, but expert opinion is in no doubt that ship-generated oil pollution, which rightly attracts so much public attention, is nevertheless relatively less significant in its total effect, although it can be the cause of highly concentrated local nuisance. National attitudes to pollution differ considerably in emphasis. In the United States, for instance, there is a presumption that damage will ensue, unless the contrary is proved, as with fluoro-carbons and the ozone layer, whereas in the United Kingdom a more conservative and pragmatic a p p r o a c h is followed. The European C o m m u n i t y is obsessed with uniformity, despite differing physical conditions in the various m e m b e r States. These attitudes affect the bargaining stances o f the Government representatives at international conventions. In any case, political considerations often dictate in advance negotiating positions to be taken up, even before expert evidence has been considered. The highly technical provisions in international conventions on marine pollution m a y cover a number of scientific non-sequiturs as a result o f hard bargaining round the conference table. There is regular criticism that provisions are either too lenient or unnecessarily strict, but it would be nafve to suppose that they rested entirely on sound scientific data, even when these are available. A notorious example is to be found in one of the standards adopted in the 1973 International Convention for the Prevention of Pollution from Ships which specifies that the total quantity of oil discharged into the sea must not exceed for existing tankers 1/15 000 of the total quantity of the particular cargo o f which the residue formed a part, while the 1/30 000 ratio is provided for new tankers. I doubt if any scientist would find himself able to justify either of these two figures on purely technical grounds. One might almost suppose that the negotiators thought of a number and doubled it. In turn, the implementation of international conventions depends on scientific and technical research and development. The 1973 Convention adopted some progressive standards, but they cannot be enforced until adequate oil/water separation equipment has been designed and until oil content meters are in adequate production. Much research is undertaken by industry, some of which may be years ahead o f G o v e r n m e n t or academic sponsored work, but understandably even when an advanced device has been designed and tested, shipowners and oil companies may be reluctant to apply it unless their competitors are obliged to do the same. Pollution control equipment is likely to add to costs and can put the operator at an economic disadvantage. It is

only when international agreement is reached, as in the 1973 Convention, that such devices as segregated ballast tanks can become standard practice, at least in newly constructed ships, although the idea is a simple one. There is the further problem o f coordination o f research effort at international level. I f there is not an acceptable basis o f scientific data, it becomes more difficult to achieve agreements. One of the reasons for the failure to reach a satisfactory agreement at the North West European conference in L o n d o n in 19751976 on compensation for pollution damage f r o m offshore exploration and production in the North Sea was because there had been insufficient coordination of work on pollution risk analysis. It was perhaps ominous that in the Department o f Environment Pollution P a p e r No. 8 the reference to oil pollution risk analysis was virtually confined to results obtained by the Massachussets Institute of Technology, based on conditions in the Gulf of Mexico. One has to emphasise economic, scientific and political considerations, because it is fashionable to blame the lawyers when legally-binding international conventions do not work well in practice. The legal advisers can incorporate only what their masters are willing to accept. Nevertheless, international agreements are examples of legal craftmanship and the legal problems involved are important. Difficulties with international conventions start at the drafting stage. Most States which participate at diplomatic conferences which codify or develop international environmental law are eager to achieve consensus, because the only alternative to this is a unilateral action. But to satisfy conflicting interests, lawyers are asked to devise ambiguous formulae which can be extremely difficult to interpret. Conventions abound with criteria such as 'reasonable', 'practicable' and the like. This leaves r o o m for a flexible approach, which is a good thing, but also for endless confusion. The worst problem, however, over international conventions is the interminable time taken to implement them. When an international conference adopts a convention, this is interpreted as a diplomatic success which will bring immediate benefits. Unfortunately, this is not so. The process o f ratification usually takes m a n y years, a dilatory procedure which causes much harm with any agreement for the protection o f the marine environment. This is followed by the cumbersome procedures for entry into force of amendments to umbrella conventions. All international agreements in the field of pollution are highly technical and therefore susceptible to changes as new scientific evidence is forthcoming, and yet it took four years for the 1954 Convention to enter into force, five years for the 1962 A m e n d m e n t s and probably more than eight years will elapse before the 1969 Amendments become operative. States which are frustrated by long delays which the international law making process involves are tempted to act unilaterally. Although unilateralism adversely affects orderly conduct of international relations, it is becoming increasingly c o m m o n . Claims to an exclusive economic zone are the latest examples of this trend. However, the development of regional international law, especially in the environmental field, is currently gaining support as a 55

Marine Pollution Bulletin

more acceptable alternative to either the universalist multilateral or the unilateral approach. Regional regulation makes it possible for a speedy solution to urgent problems to be found, because fewer States participate at the law making conferences and they all have a c o m m o n , or similar interest at stake. Moreover, it enables States whose adjacent seas are particularly vulnerable to effects of pollution, to adopt standards which are more stringent than those contained in conventions with a wider geographical scope. Article 130 o f Part lI o f the Revised Single Negotiating Text which U N C L O S III adopted at its fourth session in New York in 1976 specifically encourages States bordering enclosed and semi-enclosed seas " t o co-ordinate the implementation of their rights and duties with respect to the preservation of the marine e n v i r o n m e n t " . Such agreements have already been concluded for the Baltic Sea and the Mediterranean, and preparations are under way at both I M C O and U N E P for conferences to adopt conventions for the protection of the (Persian/Arabian) Gulf, the Red Sea and the G u l f of Guinea. This is a most welcome trend which deserves encouragement. While development of regional environmental law aims at flexibility, there is unfortunately a strong tendency in the European C o m m u n i t y towards environmental law based on rigid, uniform standards, although standards of varying degree of stringency may be required even within different areas of a single country. The Treaty of R o m e is, of course, primarily an agreement setting up an economic community, and equal treatment appears to provide a sound basis for economic activities. To impose the same environmental standards, however, on all polluters, regardless of the conditions of their physical environment, is ill-founded. It does not help the protection of the environment and can waste money which could be better spent elsewhere. Furthermore, the politico-philosophic urge at Brussels to establish a C o m m u n i t y identity has brought about proposals for establishing an EEC instrument for controlling marine pollution, which differs in detail from the Oslo, L o n d o n and Barcelona conventions, which between them cover all the member States. It is regrettable that where wide, adequate international conventions exist, slightly different regulations should be suggested which can only add to the burdens of compliance and supervision. Apart f r o m these considerations, a main legal problem in implementing international conventions lies in the conflict between flag, coastal and port State jurisdiction. The law of the sea is at present firmly based on the principle of flag State jurisdiction, a principle which has proved to be almost valueless as far as prevention of shipgenerated pollution is concerned. Flag State jurisdiction was introduced in law to safeguard the freedom of navigation on the high seas. This rationale is sound on the assumption that the flag State is able and willing to enforce the law. This, however, is often not the case. For example, ships flying flags of convenience may never call at ' h o m e ' ports, and the flag State is not in a position to exercise its authority over them even if it wanted to do so. But even those States whose ships are not normally substandard, a condition not confined to vessels which fly flags of convenience, are frequently not able to prosecute 56

their vessels for offences committed outside the territorial sea, because it is so difficult to obtain satisfactory evidence, particularly if the offence occurred many months before proceedings can be undertaken. The evidence is best obtained by the port State, and port State jurisdiction is therefore the only procedure which can ensure enforcement of anti-pollution legislation. Many maritime States, including Britain, were reluctant to lend their support to this change of principle as they feared that it could undermine freedom of navigation, but they have finally been convinced and the Revised Single Negotiating Text of U N C L O S 111 has gone a long way towards introducing port State jurisdiction into international practice. The problem is not solved if the right authorities are given power to prosecute since evidence of an offence is not easy to obtain, particularly in areas of heavy tanker and ship traffic. Nevertheless, principles have been evolved in international environmental law to alleviate this difficulty by not insisting that the prosecutor should prove the polluter's guilt; the onus is on the ship-master to clear himself which represents a m a j o r departure from rules which are otherwise applicable in law. Various defences, such as safety, are admissible. But it still remains necessary to prove the connection between a particular spill and a particular ship and this is often impossible. Internal arrangements for reporting pollution incidents have been made by the competent ministries in m a n y countries, in the UK by the Department of Trade, but patrolling seas is not easy and at night, when illegal discharges of oily wastes often take place, it is not viable at all. Some States, Sweden, Finland and the United States in particular, have carried out research with a view to identifying the origin of slicks. Sweden, for example, has devised a system whereby oily residues are tagged with metallic powder. This project, which is closely monitored by I M C O , is still imperfect and research continues. In the meantime, at the 1973 International Conference on Marine Pollution, the United States delegation proposed that the principle of reversed burden of p r o o f be applied in such a way that the onus of disproving the link between a particular slick and a ship would also fall upon the ship-master. This was considered to be too radical and it failed to win the necessary support. These are only a few of the legal problems which arise at each stage of the adoption and enforcement of international codes, but all of them are of great importance, capable of blocking the process of enacting sound environmental standards and of implementing them if they are adopted. When a convention is adopted, the speed with which it is ratified will often depend on the degree of political good-will, engendered in the countries parties to it, perhaps particularly in developing countries, where environmental safeguards are regarded as something of a luxury. An enlightened environmental policy does not carry many votes in most areas of the world, although this is changing. It is important that at the point when national policy on an environmental issue is being decided, particularly the negotiating position for a forthcoming international conference, all relevant parties should be consulted. One

Volume8/Number 3/March 1977 might think that this is what Governments do. But in maritime affairs, unlike most other matters, too many Ministries have a say. Certain Ministries will fully understand the needs and problems only o f their clients. When national representation at a conference is entrusted primarily to one Ministry, it is important that policy advanced is not weighed too much in favour of its particular interest groups. This difficulty is likely to persist in Britain until our maritime policy is properly coordinated, preferably under the supervision o f a senior Minister. A debate which took place in the House

of Lords on 18 February 1976, on the need for sea use planning elaborates the point. This outline of the problems which have to be overcome if the international regulation o f marine pollution is to be effective may seem discouraging. But it is better to acknowledge the difficulties and to search ways of resolving them than to indulge in unwarranted complacency. I am much indebted to my colleagues on the Advisory Committee on Oil Pollution of the Sea for their help in drawing the attention of those in authority to what still needs to be done.

Hydrocarbon Status in Florida Real Estate Canals W. G. HANSEN, G. BITTON, J. L. FOX and P. L. BREZONIK Department o f Environmental Engineering Sciences, University o f Florida, Gainesville, FL 32611, U.S.A. The level of hydrocarbons present in the sediments of real estate canals on the east and west coast of Florida was determined using gas chromatography. Although the amount of alkanes present was found to be comparatively low, the ratio of the amount of odd carbon-numbered aikanes to even carbon-numbered alkanes suggested that canals on the Gulf of Mexico are receiving an influx of petroleum products. In addition, the most probable number technique was used to enumerate total aerobic heterotrophic bacteria, aerobic hydrocarbon-degrading bacteria, sulfate reducing bacteria, and sulfate-reducing hydrocarbon-degrading bacteria present in the canal sediments. Results showed significantly higher numbers of hydrocarbon degrading bacteria in the sediments of the west coast canals. Demands for waterfront property and water oriented recreation continue to increase. Nowhere in the United States has this demand been so well met as in the State of Florida. Historically, Florida was encouraged by the Federal Government in the Swamp Lands Act of 1850 to recover as much o f the submerged lands as possible for taxation purposes. Particularly affected have been the low-lying mangrove systems. The loose sediment and access to the ocean make this type o f land attractive to developers. Dredging is cheap and the spoil serves as fill. Such developments are most numerous in and around major estuaries and adjacent to the Intracoastal Waterway on the east coast of Florida. The typical result o f such development is the multi-branched system o f fingerlike canals bordered by private property with street access. This rapid and extensive development of the coastline o f Florida has caused a substantial amount o f controversy. Conservational and fishing interests seek to preserve these areas to assure the continued propagation

o f fish and wildlife (Lindall & Trent, 1975). State environmental agencies in Florida are justifiably concerned about the impact of real estate canals on water quality. H y d r o c a r b o n pollutants in marine waters originate from sources other than publicized oil spills. As development of urban areas near the coastal zone continues, so does the amount o f storm r u n o f f from streets and parking facilities. Barada & Partington (1972) reported that r u n o f f into Florida's real estate canals and estuaries may contain large amounts o f pollutants from automobiles, service stations, garages and junkyards. Marinas and other areas o f concentrated boating activity may also be a potential source of hydrocarbon pollution (Davis & Wilson, 1975). Hydrocarbons formed by biological synthesis also constitute a minor but continuing contribution to the natural organic matter in the marine environment (Floodgate, 1972). The impact of hydrocarbons upon marine organisms is only partly understood. It is known, however, that relatively low oil concentrations can exert a substantial impact upon bacterial populations (ZoBell, 1973) and algal photosynthesis (Gordon & Prouse, 1973; Pulich et al., 1974). Hydrocarbons may have detrimental effects upon invertebrates (Anderson et aL, 1974) and the fauna of higher trophic levels. Hydrocarbons entering estuarine waters may associate with suspended materials which eventually accumulate as sediments. Hydrocarbons present in sediments are generally believed to indicate the past influx o f hydrocarbons into the overlying waters (Giger et aL, 1974). For these reasons, the amounts and types o f hydrocarbons which are present in Florida's real estate canal sediments were determined. The measurement o f hydrocarbons in sediments is achieved by extraction with a suitable solvent and analysis 57