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Michael Waldichuk, Control of Marine Pollution: An
Essay Review, 4 Ocean Dev. & Int'l L. 269 (1977)

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Control of Marine. Pollution:
An Essay Review
MICHAEL WALDICHUK*

Introduction
The world's oceans cover 71% of the surface of our globe. Indeed, earth can be
considered the water planet, since its watery mantle, if seen from space through
the cloud cover, is obviously its most distinctive characteristic. At one time, the
oceans were felt to provide infinite dilution for man's refuse, and society tended
to regard them as the final sink for all its wastes, without concern for the
consequences. In the early concepts of international law with respect to the
oceans, little thought was given to marine pollution, and Hugo Grotius, the
learned Dutch jurist of the 17th century, was prompted to refer to the oceans
as: "that expanse of water which antiquity describes as the immense, the
infinite, bounded only by the heavens, parent of all things; the ocean which the
ancients believed was perpetually supplied with water not only by fountains,
rivers, and seas, but by clouds, and by the very stars of heaven themselves; the
ocean which, although surrounding this earth, the home of the human race, with
the ebb and flow of its tides, can be neither seized nor enclosed; nay, which
rather possesses the earth than is by it possessed."
He further stated: "The vagrant waters of the seas are . . . necessarily free.
The right of occupation . . . rests upon the fact that most things become ex-
hausted by promiscuous use and that appropriation, consequently, is the condi-
tion of their utility to human beings. But this is not the case with the sea; it can
be exhausted neither by navigation nor by fishing, that is to say, in neither of
the two ways in which it can be used" (Grotius, 1916).
At the time Grotius made his pronouncements, it was appropriate for the
needs of his country, with a vast fleet, to treat the oceans as entirely free for
navigation. During the period of the Grotian conception of "freedom of the
seas," an English jurist named John Selden, little known except for some of his
obscure writings, favored a closed sea. His stand supported the English position,
since England was still a comparatively small naval power at the time. As it
became a dominant naval power, however, England espoused the concept of

*Michael Waldichuk is Program Head at the Pacific Environment Institute, West Vancouver,
British Columbia.
Ocean Development and InternationalLaw Journal,Volume 4, Number 3
Copyright D 1977 by Crane, Russak & Company, Inc. 269
270 MICHAEL WALDICHUK

freedom of the seas. Selden concluded that since Grotius made an exception for
bays, inlets, and coastal waters, considering these to be traditionally part of the
mainland, one could logically extend this concept to the high seas. Selden argued
that these coastal waters are open, just like the high seas; therefore, if coastal
waters are subject to national domination, certainly the high seas could also be
nationally controlled. However, Grotius' arguments for Mare Liberum prevailed,
and it is almost impossible to locate a copy of Selden's Mare Clausum in any law
library.
In today's approach to the international control of marine pollution, we are
beginning to move toward Selden's concept of the closed sea. Clearly the oceans'
capacity to absorb wastes is now recognized as being finite and the freedom to
allow unlimited introduction of wastes and other matter into the seas can no
longer be tolerated. Since 90% of the pollution of the ocean originates from
land-based sources (Hargrove, p. 214, notes that estimates range to over 90%), it
would seem appropriate also for coastal states to limit input of substances into
the sea and thereby help to control marine pollution. Surely by protecting its
coastal resources against encroachment by pollution, a coastal state will also
reduce the amount of pollutants entering the world's oceans.
The world's oceans are not static. They are in a continuous state of horizontal
and vertical flux, a dynamic system of water movements through currents and
diffusive processes. Marine pollution knows no political boundaries. A pollutant
may be carried by currents from the coast of one state to that of another, or it
may be transferred through turbulent diffusion. There is a need for some
uniformity in standards of effluent discharges and water quality from one
country to another, so that the pollutants discharged by one nation will not
pollute the waters at the doorstep of another.
During the last two decades, an effort has been made to bring international
control to pollution from specific sources, such as ships. Control measures have
been directed largely to specific types of pollution, such as radioactive wastes
and oil. But there is no successful overall convention covering the control of
discharges of all types of pollutants from all sources. Certainly, the London
Ocean Dumping Convention of 1972 (United Kingdom, 1972) makes an im-
portant advance in controlling the dumping of wastes and other matter into the
world's oceans. The 1973 International Convention on the Prevention of Pollu-
tion from Ships (Inter-Governmental Maritime Consultative Organization, 1973)
endeavored to update the 1954 International Convention for the Prevention of
Pollution of the Sea by Oil. The 1973 IMCO Convention attempted to take into
account other ship-generated wastes, such as sewage and garbage, and an attempt
was made to control the release of noxious substances other than oil from
vessels. However, the environmental release of substances through more diffuse
land-based sources, such as the atmospheric emissions of gaseous products and
CONTROL OF MARINE POLLUTION 271

the release of water-borne industrial effluents through coastal outfalls and into
rivers, eventually discharging into the sea, did not come under control. More-
over, the wastes and environmental disruption associated with the exploration
and exploitation of the sea bed are still generally uncontrolled internationally.
The present essay review deals with three books and a report on the ocean
environment with emphasis in the books about the Third UN Conference on the
Law of the Sea,' where some of the remaining problems of marine pollution are
being considered in a new overall Convention or set of Conventions. As this
review is being prepared, the national delegates are moving into the fourth
substantive session of Law of the Sea III, being held from August 2 to Septem-
ber 17, 1976, in New York. A negotiating text with draft articles for the new
Law of the Sea Convention has been prepared and was discussed in committee at
the third substantive session held in New York during March-April 1976.
Chapter I of Part III of the negotiating text of this draft Convention, entitled,
"Protection and Preservation of the Marine Environment," contains 47 articles
dealing with all aspects of marine pollution. This part of the draft Convention
for the Law of the Sea has been given high priority by many states at the
Conference. However, the more general issues concerning the extent and char-
acter of coastal state jurisdiction and the regime for seabed mining appear to
have received the highest priority attention by most states.
The documents reviewed in this essay deal mainly with the scientific, eco-
nomic, legal, and sociopolitical aspects of international protection of the marine
environment. Each will be discussed under separate headings dealing with the
foregoing aspects of preservation of the marine environment, according to its
contribution to those aspects.

About the Authors and Their Works

Who Protects the Ocean?, edited by John Lawrence Hargrove, consists of six
chapters written by different authors, and was published under the auspices of
the American Society of International Law. The book has 233 pages of text and
an excellent summary table of "International Legal Responses to Activities
Threatening the Marine Environment" in the back cover. It was a product of the
Working Group on Ocean Environment of the American Society of International
Law. Members of the group were drawn from two Society research panels that
had been functioning for several years, one on International Law and the Global
Environment and the other on Law of the Sea, chaired respectively by Stewart
L. Udall and Milton Katz. The Working Group on Ocean Environment was
formed in 1972, when it was evident that there would soon be a conference
aimed at international revision of the law governing ocean space. John Lawrence
Hargrove, who wrote one chapter and coauthored another in addition to editing
the book, was director of studies and later acting executive director of the
272 MICHAEL WALDICHUK

American Society of International Law. Other chapters of the book were

prepared by authors with expertise in particular areas of ocean science, eco-
nomics, and law. 2
International Marine Environment Policy: The Economic Dimension, by
Charles S. Pearson, is a small volume of 127 pages, prepared at the Washington
Center of Foreign Policy Research in the School of Advanced International
Studies, Johns Hopkins University. The author points out that members of
his graduate student seminar at the School of Advanced International Studies,
Johns Hopkins, and at the College of Marine Studies, University of Delaware,
made substantial contributions to the book collectively. In his preface, the
author notes that the book's "intended audience is broader than the economics
profession." However, it is comparatively academic in its analysis even though
the author further adds, "An effort has been made to present terms, concepts,
and arguments so that they are fully accessible to anyone interested in ocean
policy formation or the formulation of environmental controls."
Towards an Environmentally Sound Law of the Sea, by Robert M. Hallman
with an introduction by Barbara Ward, president of the International Institute
for Environment and Development, is a report of the International Institute for
Environment and Development in Washington, D.C. An environmental lawyer,
Mr. Hallman is a member of the Center for Law and Social Policy, a private,
nonprofit law group in Washington, D.C.
At the time this book was written, the first major session of the Third Law of
the Sea Conference was being held in Caracas, Venezuela. Barbara Ward (Lady
Jackson), in her introduction "The Quantum Jump," articulates very clearly the
problems of growing use and negligence of the oceans and coastal areas and the
impact they have on life in these waters.
Disposal in the Marine Environment-An Oceanographic Assessment was
prepared by the Ocean Disposal Study Steering Committee under the auspices of
the Ocean Affairs Board, Ocean Science Committee of the National Research
Council, and published by the National Academy of Sciences in Washington,
D.C. A workshop on ocean disposal was held at Woods Hole, Massachusetts,
September 9-13, 1974, with 74 participants from universities, government
institutions, and industry. Although the editor indicated that use of this report
was optional, I found it a very useful document on the scientific aspects of
controlling marine pollution in that it brought together some new concerns on
and insights into the problems of waste disposal into the marine environment
and its ecological effects.

The Oceans as a Resource

The oceans must be viewed as a resource available for the benefit of mankind. If
properly husbanded, this resource will continue to serve the many demands
CONTROL OF MARINE POLLUTION 273

placed on it for all time. The number of uses of the oceans has grown extensively
from Grotius' time, when he regarded the sea as used only for two purposes,
navigation and fishing.
From time immemorial, the oceans served as a means of transport for man's
vessels and for the goods carried in them. With the energy of the wind, man
propelled his most primitive rafts in prehistoric navigation to distant places.
More modem armadas of sailing ships provided a means for transportation of
materials, exploration, adventure, and sometimes military invasion. The oceans
continue to serve as a means of transportation, now well advanced beyond the
old windjammer days, but still a medium for moving people and cargoes from
one point to another on their waters. The annual cargo, both dry and wet (oil),
moved by sea continues to increase. Ships still feature highly in international
deliberations on the navigation rights of nations, on pollution control and
compensation for pollution damage, on safety at sea, and on port state and flag
state jurisdictions.
The seas have provided a source of protein since prehistoric times. The
production of world marine fisheries continued to increase to 1971 as new
unexploited stocks were located and harvested. There has been a slight decline
since the peak production of 1971, because of the collapse of the large Peruvian
anchovy fishery. The percentage of world protein coming from the sea, now about
70 million metric tons per year, is not insignificant, amounting to about 10%
of the total protein produced. The protein production of the sea is expected to
continue to climb at a greater pace than protein production on land. It is
anticipated that the maximum production of fisheries from the oceans will level
off at approximately 120 million metric tons per year. Depending on what
trophic level is harvested-e.g., the krill from the Antarctic Covergence could
contribute a substantial amount of marine protein-the ultimate production
from the sea could become substantially higher. In a world hungry for protein
this can be an extremely important source of food supply for the growing
populations of the world.
The oceans are being used increasingly for other resources besides protein.
For example, seaweeds are an important part of the diet in certain parts of the
world. Sea salt is a vital marine resource in hot, dry areas without mined salt.
Pharmaceuticals are becoming an increasingly valuable item derived from the sea.
Chemicals such as bromine and magnesium have long been extracted from ocean
water because of their high concentrations as major constituents in this medium.
Cooling water for thermal and nuclear power plants located on or near the coast
is becoming an increasingly important resource as we strive to increase our
anergy supply to meet the growing demands in every nation. Desalination of
seawater is being practiced in many parts of the world as a solution to freshwater
shortages for domestic purposes and irrigation of agricultural lands.
274 MICHAEL WALDICHUK

Of course, the ocean bottom has long been recognized as a rich resource for
fossil fuels. A large proportion of oil is now taken from the oil wells on the
continental shelves of the world. Gas supplies are also abundant in certain
regions, such as the North Sea and the Mackenzie Delta. There is a great
potential for metals from manganese nodules, particularly nickel and copper.
Phosphorite deposits have already been exploited in certain parts of the world.
Gravel resources are dredged in certain regions where they are required for
building material. No doubt eventually deposits will be found sufficiently rich in
certain base or precious metals to make mining and extraction profitable from
non-nodule sources.
A major use of the oceans, particularly in coastal zones, is for recreation.
Beach areas, especially in the warmer climes, are frequented by many visitors at
almost all times of the year. Water contact sports, such as bathing, snorkeling,
scuba diving, and surf riding, are popular in many parts of the world. Sailing,
motorboating, and other aquatic activities are a valuable asset for most coastal
communities. Beachcombing, sightseeing along the seashore, and other noncon-
suming recreations such as photography and seascape painting are recreational
outlets for many people everywhere. But clean water and clean beaches are
prerequisites for such use. Picnicing along a clean beach, for example, is far more
attractive than picnicing on an oil-polluted, sewage-contaminated, foul-smelling
beach. Marine parks and ecological preserves are being established in many
coastal areas of the world for both recreational purposes and scientific investiga-
tion. This ensures some degree of protection against environmental degradation.
The dollar value of recreation is sometimes underestimated. The well-being of
body and spirit in human beings is difficult to estimate in terms of currency. The
strength of a nation sometimes depends on such attributes as the recreational
outlets it has to offer.
The foregoing are some of the resources the ocean has to offer that must be
protected. Once we allow pollution to take hold, we are curtailing our options
for utilization of marine resources. We may still be able to navigate our ships on
a polluted sea, but even then, vessel operation can be adversely affected by
polluted waters and some of the pleasures associated with a coastal cruise may
be gone if the aesthetic quality of the marine environment is seriously impaired.
If we cannot harvest oysters and clams in waters that have been polluted by
sewage, we have essentially destroyed a resource that was once available for
commercial exploitation. Certainly, the shellfish could have been available for
recreational use if pollution had not been allowed to take place.
Nevertheless, as an interim need at least, whether intentional or inadvertent,
the ocean can serve for assimilation of a limited amount of man's domestic and
industrial wastes. Some consider this a legitimate resource of the sea. Over the
course of time, no doubt, the amount of polluting substances introduced into
CONTROL OF MARINE POLLUTION 275

the sea will be diminished through deliberate national and international control.
In the meantime, it is essential that irreversible damage is not done to the
capacity of the marine environment to fulfill the other needs.
Ocean resources, in the context. of ocean policy and environmental controls,
are discussed by Pearson in his chapter "Interpreting Ocean Environment Con-
trols." He begins with the thesis of Demsetz (1967), who argues that "a primary
function of property rights is guiding incentives to achieve a greater internaliza-
tion of externalities" 3 and that "property rights develop to internalize ex-
ternalities when the gains from internalization become larger than the costs of
internalization."
Pearson observes that for a demonstration of the full thesis as applied to the
marine environment, examination of four sequential elements is required:

(1)-the historical property rights regime, while once appropriate, does not
now inhibit activities that create external diseconomies;
(2)-the relative value of ocean resource services, and hence the costs asso-
ciated with external diseconomies, has been increasing;
(3)-the international response has been to develop a system of user rights
that either forces the internalization of previously external costs, or curtails
the activities that give rise to these costs;
(4)-the techniques for intervening and limiting rights to ocean resources have
evolved toward those that minimize information costs and maximize the
efficiency of the instruments themselves.

Pearson examines five major resources of the sea with respect to externalities:
fisheries, offshore oil production, marine transport, mining of the seabed for
manganese nodules, and waste disposal. Fisheries are internationally controlled
through some 22 regulatory bodies concerned with conservation of the living
resources of the sea whereby limits are placed on activities giving rise to external
costs. Concerning waste disposal, Pearson notes:

Regardless of pathway, the externalities created by waste disposal in the

oceans oblige other direct and indirect users of ocean resources to bear costs.
These other activities include sport and commercial fisheries (including shell-
fish beds), recreation, and esthetic amenities. There is also serious concern for
direct human health damages as toxic pollutants, such as heavy metals, are
taken up through the food chain and concentrated in fish and shellfish products.
Marine transport is said to be affected, as contaminated sea water used in
ships' boilers fouls intake mechanisms and harms ships' machinery. Indirect,
subtle, and long-term effects on the marine ecological systems are also cited.
Potentially serious costs are being passed on to future generations.

Pearson feels that the third proposition of the expanded Demsetz thesis is
supported in part by his (Pearson's) review of existing international conventions
276 MICHAEL WALDICHUK

for controlling marine pollution. A substantial number of these conventions,

although they are not yet in force, deal with such matters as Intervention on the
High Seas in Cases of Oil Pollution Casualties, Civil Liability for Oil Pollution
Damage, and Establishment of an International Fund for Compensation for Oil
Pollution Damages. Clearly, these are designed to force internalization of previ-
ously external costs or to curtail the activities that give rise to these costs.

Some Underlying Principles in Marine Pollution Control

A number of common threads weave through virtually all the documents that
have been reviewed. One of these is the controversy between the Grotius
concept of freedom of the sea and national territoriality or coastal state
ownership. This is closely associated with Hardin's (1968) exposition, "The
Tragedy of the Commons." Basically, the problem is that property that is
considered a common heritage of humanity belongs to no one in particular and
of course gets no special atterition for preservation. Moreover, each state is
dedicated to maximizing its short-term benefits in utilizing a common-property
resource. In the case of waste disposal into the sea, states bordering on a given
sector of the oceans would normally want their share, and sometimes more, of
the assimilative capacity of that body of water.
The book by Pearson dwells at considerable length on the economic aspects
of marine environmental policy. Pearson demonstrates quite clearly the benefits
and costs of pollution abatement. In a graphic representation of this matter, he
shows that there is actually a point at which benefits can be maximized in
pollution abatement practices. However, eventually a point is reached at which
benefits are cancelled out by costs, followed by costs rapidly exceeding benefits
by a substantial margin. Some of the economic benefits from pollution control
and abatement can be demonstrated quite readily on a national basis, but they
are more difficult to demonstrate internationally.
The need to "internalize the externalities" is a maxim of the economic and
social aspects of pollution control. Pearson states:

Users of the environmental resource for waste disposal purposes create costs
that are external to themselves but are borne by others and are called ex-
ternalities or external diseconomies. It is the existence of externalities that
drives the wedge between private and social costs. Although externalities are
not confined to environmental deterioration, some familiar examples from
this literature illustrate the concept.
... Uncontrolled automobile emissions damage the health of urban resi-
dents, and overhead transmission lines reduce scenic qualities and produce
amenity losses. In each of these examples the costs that are external -to one
party-the petrochemical firm, the commuter, the power company-are ab-
sorbed elsewhere in society.
CONTROL OF MARINE POLLUTION 277

In examining economic criteria for evaluating marine environmental control

policy, Pearson points out that three questions have to be decided:

(1)-the types and amounts of pollution to be permitted, or alternatively,

the extent of pollution abatement activity;
(2)-the most appropriate instruments for the government to employ to
obtain environmental quality objectives;
(3)-whether the distribution of costs and benefits resulting from the environ-
mental control measures is acceptable, or whether compensatory action
should be taken.

These questions apply largely to development of national policy on marine

pollution control. However, since national policies are often closely intertwined
with international policy, there is a bearing on international developments.
Although government agencies sometimes have noble objectives of totally
eliminating the discharge of effluents into the coastal marine environment by a
given date, usually economics and other factors enter into the final decision on
how unwanted materials will be disposed of. When all the alternatives are
examined for eliminating a quantity of a particular type of waste, it is sometimes
found that the ocean disposal alternative is perhaps less expensive and sometimes
less ecologically damaging. For example, wood-containing wastes, such as those
present in certain dredge spoils from harbors, might be dumped in a suitable land
disposal area. However, leachates from these kinds of wastes may eventually
enter fish-bearing streams, causing toxic conditions and damage to fisheries far in
excess of that which might occur if the wastes were dumped into the marine
environment. Often, the economics of a particular disposal operation, rather
than its ecological impact, will determine the final disposal practice. This is
illustrated by the practice of disposing of low-level radioactive wastes into
coastal waters off California, which was phased out during the 1960s because of
the high cost of sea disposal. Instead, the wastes are trucked to the desert of
Nevada, where they are buried on land at lower cost. The fact that these wastes
had to be dumped beyond a minimum allowable depth, where they would not
interfere with the fish or fishing activities, may have had something to do with
the change in disposal practice. In any case, economics prevailed.
We must be prepared to accept the situation that once human inhabitants are
present in coastal regions, regardless of what precautions one may take the
waters will never again have their pristine quality. An area must be declared an
ecological preserve, with prohibition of any human .activity, to maintain the
character of its primitive state, although even this is not assured because
polluting substances are transported through the atmosphere and water currents
from distant places. A certain degree of pollution will arise even with the best
precautions for pollution control. It may even be ecologically acceptable, and it
278 MICHAEL WALDICHUK

is certainly economically desirable, to consider that the oceans have a finite

assimilative capacity. For wastes that are biodegradable and not accumulative in
the marine environment, it may be reasonable to consider the oceans as an
acceptable repository within limits. Often we cannot define the limits too well
because of the lack of information on the effects of these pollutants. When such
uncertainties exist, it is obviously much safer, and definitely much easier, for
regulatory agencies to prohibit given disposal activities totally.
The chapter by Goldberg and Menzel entitled "Oceanic Pollution" in Who
Protects the Ocean? demonstrates the magnitude of the pollution problem in the
marine environment, but it also points out some of the scientific problems that
are faced in documenting it. The serious problems with respect to the pollution
of the oceans are often not so much with what we know but with what we don't
know. Who would have guessed, for example, thirty years ago that PCBs would
become a serious ecological problem in some of our waters? Who would have
predicted that DDT, the miracle. pesticide that helped to eliminate malaria as a
health menace to Allied troops during World War II, would eventually cause
egg-shell thinning in birds and heavy juvenile fish mortality in rivers adjacent to
sprayed forests? Although we were aware that mercury is poisonous, how could
anyone have prognosticated that methyl mercury would be so violently
damaging to the human nervous system when consumed in contaminated shell-
fish and other marine foods? There is a haunting specter that we may be titrating
the oceans with unidentified substances to a catastrophic end point (Goldberg,
1976).
The scientific problems in marine pollution are often related to a lack of
definitive information on cause-effect relationships. Frequently scientific
opinions differ with respect to interpretations of the same data. As Goldberg and
Menzel state in their paper under the section "Afterthoughts":

It is not unexpected that uniformity in thought does not exist in the

scientific community. The interpretation of environmental impacts is some-
times not easy, not clear-cut, and not amenable to adequate testing. Are the
dead birds on beaches victims of DDT, PCB's, mercury, or some other
compounds that were not analyzed? This lack of concordance among sci-
entists does not inspire confidence in policy makers concerned with managing
the environment.

Because of the many uncertainties in pollution of the marine environment, I

thought that Disposal in the Marine Environment is extremely valuable. It
points out some of the shortcomings in our knowledge today concerning
pollution problems. For example, we have long known that pollutants are
transferred to the marine environment from land with air currents, but we
seldom consider the marine environment as a source of contamination for the
atmosphere. The report states:
CONTROL OF MARINE POLLUTION 279

Although experiments have yet to be done at a disposal site, there is

sufficient evidence to suggest that the material in the surface slick, or within
about a micrometer of the surface, is ejected into the atmosphere on jet drops
from bursting bubbles. Since the surfaces of both fresh and salt waters,
especially where slicks are prevalent, often contain concentrations of bacteria
higher than those in the water beneath, these surface bacterial concentrations
should be reflected in the drops ejected from the bubbles.
Perhaps even more important than the bacterial concentration at the surface
of the sea is the concentration that undoubtedly increases with time on
bubble surfaces. We have strong reason to suspect that bubbles rising through
the high bacterial concentrations of the waters at a sewage disposal site will
scavenge and carry many bacteria to the surface of the sea.
The foregoing document reviews some of the needs for research in the control
of marine pollution arising from waste disposal. For example, under "Dis-
persion" the document recommends:

Dispersion processes, although poorly understood in the coastal marine en-

vironment, are the basis for physical prediction of the fate of disposed
materials. Therefore, research should be aimed at understanding the processes
which govern the transport and dispersion of both suspended and dissolved
waste material over both short and long spatial and temporal scales. Assess-
ment of effects requires comprehensive physical oceanographic knowledge to
determine the location and concentration of waste material.

Effects of Environmental Contaminants

Clearly, the control of pollution in the marine environment must be related to
some adverse effects that become apparent either in the short term or the long
term. These can be broadly subdivided into three areas: (a) human health
hazards, (b) ecological impact, and (c) aesthetic impairment. It might be argued
that all three effects essentially could be grouped under ecological impact if man
is considered part of the ecosystem. However, it might be somewhat better in
this analysis to treat the three effects separately.
The problem of ecological impact is fraught with many scientific uncer-
tainties. The chapter entitled "Summary and Recommendations" of Disposalin
the Marine Environment states: "In our opinion, therefore,it is in the interestof
all concerned to consider increased research directed specifically toward re-
ducing the scientific uncertaintiesassociatedwith ocean disposaL The results of
such research could benefit the EnvironmentalProtectionAgency by forestalling
or mitigatingdispute."
This recommendation applies equally well, if not more, to international
conventions on marine pollution control.
Much of the control of pollutants has been based on harmful effects on
human health and interference with amenities. There is just as compelling a need
to impose pollution controls on ecological grounds. Changes in the ecosystem
280 MICHAEL WALDICHUK

are often insidious and can only be documented by painstaking ecological

research. Pollutants may affect a particularly sensitive species in an important
food chain of an estuary, for example. They would not only alter the population
structure in the estuary, but might have undesirable consequences on com-
mercially important species dependent on the particular food chain for sus-
tenance.
Ecological effects may be manifested in a variety of ways, ranging from
inhibition of light penetration by suspended sediments in coral reef areas to
physiological stress on higher organisms, such as fish, from sublethal concentra-
tions of toxic pollutants. The basic problem in relating the pollutant concen-
tration to an ecological effect lies in establishing dose-response relationships.
Some of this can be done in the laboratory, sometimes by simple, but more
often by rather sophisticated, experiments. In the final analysis, however, the
ecological impact of a pollutant or of any other environmental disturbance must
be related to field conditions, with a substantial amount of observation in situ.
Simple models are now proving useful in providing a predictive capability on the
ecological impact of pollutants and restructured environments. However, they,
too, have to be supported by good field observations.

Types of Contaminants
A wide variety of pollutants enters the marine environment. Some of these may
be highly biodegradable and have only a local unfavorable effect, while others
may be quite persistent and have long-term effects not only on the local marine
environment but on the global one. We may have highly visual effects, such as
those created by plastics, wood debris, and foam, or the effects may be very
subtle and insidious, such as the bioaccumulation of metals and chlorinated
hydrocarbons. For convenience, classifying the known pollutants into five dis-
tinctive categories could serve as a useful means of examining the problems they
pose: (1) metals, (2) synthetic chemicals, (3) petroleum hydrocarbons, (4) radio-
nuclides, and (5) solid wastes. All have particular effects on the marine environ-
ment and marine organisms, but (1), (2), and (4) are persistent and bioac-
cumulate in aquatic organisms, which makes them especially hazardous. These
substances are regarded as having an impact in all marine waters, but are
particularly significant on a global basis. All demand a different approach for
quantitative analysis as well as for evaluation of dose-response relationships. A
useful document on this subject is the "Review of Harmful Substances" pub-
lished in reports of GESAMP Sessions V to VII (GESAMP, 1973-1975).
Goldberg and Menzel, in the chapter on "Oceanic Pollution" of Who Protects
the Ocean?, discuss marine pollution by halogenated hydrocarbons, mercury,
and petroleum in a global sense. They are unable to provide compelling scientific
arguments based on existing data, either on the ecological threat of these
CONTROL OF MARINE POLLUTION 281

substances to the global marine environment or on the need to control their

input into the sea. However, there is enough information on local hazards of
these substances for global concern to be exercised until we have a better
scientific basis for relaxing controls.

Scientific Basis for Marine Pollution Control

The public concern about pollution of the marine environment started about
1960 and accelerated rather rapidly until it hit a peak about 1970. There is
always a lag between public concern and legislation to control pollution, so that
the early 1970s witnessed a great proliferation of national legislation to take
account of the concerns expressed by the various environmentally oriented
bodies, some backed with good scientific information and others essentially
ecoactivist expressions. Many alarmist pronouncements were made. In some
cases, these have influenced political action. However, there is often inadequate
scientific information to enable regulatory bodies to take a less stringent ap-
proach to pollution control. Conversely, for the same reason, fear has been
voiced from various quarters about the danger that regulatory bodies may not be
able to take measures that are stringent enough.
Unfortunately, some of the alarmist outcries have been directed at mani-
festations that may be comparatively low on the priority scale with respect to
the long-term adverse effects on the marine environment. Attention is often
drawn to those aspects that are essentially visible, e.g., discoloration, litter,
foam, and oil slicks. The more important aspects of long-term pollution, such as
the dissolved, persistent constituents that bioaccumulate in aquatic organisms
and may pose a health hazard to human consumers, may be neglected.
Gradually, as more critically evaluated information emerges, many of these
problems are put into proper perspective. However, there is still far too little
reliable information on many aspects of environmental pollution, none the least
of which concerns the marine environment.
It has been repeatedly stated that we must know the "state of the health of
the ocean" (Goldberg, 1976), and how this is changing from year to year. At the
present time, we have only a few "snapshots" of conditions in the oceans taken
here and there from time to time. We require a good baseline survey that could
definitively tell us the state of conditions in the ocean waters, in marine
organisms, and in the sediments. Only then could we start measuring trends,
having a sound basis from which to measure these as an indicator of any adverse
changes in the health of the ocean. To know how the marine environment is
changing, we must be able to identify trends. This can only be done by
monitoring in a carefully developed program. Monitoring on a worldwide basis
would be a costly operation indeed, and the utmost care is required to plan a
cost-effective program.
282 MICHAEL WALDICHUK

Various problems need to be resolved before one can develop a good baseline
survey and follow this with a sound monitoring program. We must know what to
measure, where to measure it, how often, and by what means. Year by year
improved techniques provide increasing sensitivity for measurements with high
precision of substances in various media. Only recently, for example, have we
been able to measure with the necessary accuracy the concentrations of mercury
in water, in the biota, and in sediments to enable us to follow the movement and
bioaccumulation of this metal in the marine environment and to implement
control. As recently as 1966 we were first able to identify and to measure by
sophisticated liquid-gas chromatography and mass spectrometry techniques the
concentrations of PCBs in water, in sediments, and in organisms. Other sub-
stances may be entering the marine environment through so-called ecoleaks, in
the same way that PCBs entered, but we have not yet developed screening
techniques to identify these substances.
It has been extremely difficult to obtain unequivocal interpretations of the
effects of inputs of pollutants into the marine environment even from the few
scientific sources available. There are often large differences of scientific
opinions on interpretations of data, assuming that the data are all comparable in
the first place. In many cases, adequate data are lacking. Laboratory results
cannot always be translated to field conditions. The field situation is extremely
variable. Costly, long-term data collections are required to obtain statistically
valid means of the measured variables.
Development of water quality criteria, which can be used to control the
pollution created by various substances, often has to be based on inadequate
information consisting of fragmentary knowledge of effects on marine
organisms, extrapolation from toxicity measured in fresh water, and data ac-
quired with improperly controlled and measured experimental conditions. Some-
times no information whatsoever is available on which sound recommendations
can be based. This was sometimes true, for example, in developing water quality
criteria for the marine environment in the document, "Water Quality Criteria,
1972" (NAS-NAE, 1973). The lack of suitable scientific information from
which to develop criteria could eventually pose a hazard. Too lenient a standard
could be imposed on the discharge of a particular constituent into the sea. At
the other extreme, an economic burden may develop when too large a safety
factor is required to cover the uncertainty in the absence of good data.
The oceans are the "last frontier" in terms of the ultimate buffer zone against
man's abuses of his global environment. Once undesirable trends occur in the
oceans they will be difficult to reverse. The deep sea has a turnover rate
measured in thousands of years. National, regional, and international (global)
legislation is required to control pollution in the marine environment. However,
environmental legislation is of little value without sound scientific backing. The
CONTROL OF MARINE POLLUTION 283

needs for research to support environmental legislation adequately are in-

creasing, but unfortunately, research information does not seem to be keeping
pace with the needs.
Technology for precise measurement of pollutants in the marine environment
is not universally available, even in the developed world. Few laboratories can
measure low levels of radionuclides in the marine environment precisely, and
even fewer laboratories can analyze for lead in seawater precisely. Technicians
must be trained in developing countries to be able to carry out precise analyses
on rather sophisticated equipment. Intercalibration exercises are needed to
check methods. Good quality control on data is essential, if we are to have
reasonably good intercomparability of data taken by various laboratories and
scientists studying the world's oceans.
Some of the problems and uncertainties in connection with oceanic pollution
are given in the chapter "Oceanic Pollution" by Goldberg and Menzel in Who
Protects the Ocean? In their concluding paragraph, they state: "We are entering
a new era in environmental management. Although a nation unilaterally can
attempt to manage its forests, its wetlands and its internal waters, today
collectives of nations must manage those environmental resources that they use
in common."

The Economics of Pollution Control

Pollution control itself seldom has any tangible economic benefits. There are
social benefits but these are difficult to quantify. The added costs of production
due to pollution control measures are usually passed on to the consumer. With
respect to the social costs of pollution, the objective is usually to internalize the
externalities. To internalize the external costs of a plant discharging effluents
into a water course, it is essential to treat the effluents discharged so that they
are essentially harmless. Then the costs for the pollution abatement are borne by
the polluter, who has internalized the external costs but, as noted above, he
passes these costs on to the consumer in product prices.
The benefits from pollution control are difficult to quantify. Even with
demonstrated benefits, sometimes it is difficult to convince industry of the
economics of recovery and recycling, e.g., effluent disposal from pulp mills not
only contributes to a fiber loss that is ecologically damaging but it may silt in
the receiving waters and necessitate dredging. With a program of fiber recovery
and other wood solids removal, the operation can benefit by additional product
for pulp and for energy from hog fuel represented by the wood solids. The high
cost of dredging can be at least substantially reduced by prevention of entry of
wood wastes into the receiving water. In spite of the fact that materials lost have
to be paid for in the first place and can be used for pulp and energy in
production, industry is often reluctant to introduce recovery measures for the
284 MICHAEL WALDICHUK

value of materials recovered themselves. Legislative controls on pollution are

often needed to force industry to act. Foam recovery from a pulp and paper mill
could mean that some of the toxic constituents and organics with a high
biochemical oxygen demand can be removed. By burning them there is even a
possibility of some energy recovery, but again industry is reluctant to recover
the foam if it is not forced to.
The foregoing examples are all taken from situations in which there is
actual harm to aquatic organisms and to the aquatic ecosystem. Pollution
control is justified to prevent the destruction of valuable species used in
commercial fisheries, for example. But how do you justify clean waters for
amenities, aesthetics, and the "good life"? In spite of compelling arguments for
the value of recreation to society, it is difficult to put this value in quantitative
terms. The recreational value of sport fishing, for example, is still based on such
economic values as license fees, purchases of fishing gear, boat rentals, accom-
modations used by sports fishermen, and the general contribution by sports
fishermen to the economy of a given area.
It is difficult, although entirely justifiable, to equate the preservation of the
coastal marine environment to improved mental health, reduction of juvenile
delinquency, decrease in hospitalization for physical and mental ailments, and
possibly a drop in the crime rate. In the end, all these factors contribute to the
stature of a nation. However, as the situation prevails, it is often only those
things that can be clearly supported by quantifiable benefits that will gain
financial support. It is difficult to gain support for research on environmental
quality, taking into account the cost-benefit ratio. One is more likely to gain
support for fisheries enhancement research than for water pollution investiga-
tions, even though the effectiveness of fisheries enhancement may depend a
great deal on the quality of the water in the rivers and estuaries through which
the fish have to pass.
Oil pollution, if nothing else, is clearly an economic problem. Oil-polluted
beaches, for example, will keep the tourist from otherwise attractive resorts.
Cleaning up an oil spill is costly, estimated at about $10 million for a 50,000-ton
oil spill. Oil spilt by a tanker at some distance off shore can pollute the beaches
of an innocent coastal state. Clearly, there is a need to institute a system of
compensation for such oil spills. In the last decade international agencies such as
the Inter-Governmental Maritime Consultative Organization have made an effort
to develop conventions that would provide a basis for compensating for oil
pollution damage caused by tankers and other vessels. Any such compensation
scheme, of course, is subject to a certain amount of abuse, in that coastal states
may wish to take unfair advantage of flag states to gain compensation at the
slightest provocation.
Developing nations consider marine pollution the rich countries' problem.
CONTROL OF MARINE POLLUTION 285

They see that the industrialization of the developed countries has largely
contributed to pollution. As noted by Robert L. Friedheim in his chapter,
"Ocean Ecology and the World Political System," in Who Protects the Ocean?:

Many representatives of developing states see concern with pollution and

ecology as a potential diversion of their limited funds and energies from their
desired goals. After all, the developing can and have pointed out that the
pollution of the world's water and air has been caused by the developed in
their sloppy and careless rush to industrialize, that one "externality" of the
development of the developed has been to pollute the common property of
all the world's people. To an extent, they also are concerned with the
possibility that the developed will despoil their coastlines through a major oil
spill or tanker wreck off their coasts.

In his chapter, "The Economic Milieu of the Ocean," in Who Protects the
Ocean?, Meredith 0. Clement concludes:

In short, the market system, with its wondrous pricing mechanism, is per-
forming poorly-if at all-in allocating the oceans' functioning among its
several crucial alternative uses.

The Legal and Political Aspects of Pollution Control

It is clear, scientific argument notwithstanding, that the most effective action for
pollution control is often through legal action ultimately translated into legisla-
tion through the political process. A landmark decision that decreed that one
state is not allowed to pollute the environment of another state resulted from
the celebrated Trail Smelter case [3 UNRIAA, 1938 (1941)]. In this case, the
sulfurous fumes from the Trail Smelter in south-central British Columbia were
carried by the atmosphere into the agricultural area of eastern Washington State,
destroying the crops there. It was clearly an instance of the industry of one state
interfering with the industry of another.
In the 1941 TrailSmelter decision, an arbitral tribunal ordered Canada to pay
compensation to the United States for damages caused by fumes by the privately
owned Canadian smelting company. The tribunal stated:

... under the principles of international law . . . no State has the right to use
or permit the use of its territory in such a manner as to cause injury by fumes
in or to the territory of another or the properties or persons therein. . . . It is
therefore the duty of the government of the Dominion of Canada to see to it
that this conduct should be in conformity with the obligation of the
Dominion under international law as herein determined.

The result of this case was that the Trail Smelter had to find means of
stemming the emissions of sulfur dioxide into the atmosphere in order to stop
286 MICHAEL WALDICHUK

the destruction of Washington State farmers' crops. As it turned out, the sulfur
dioxide was recovered from the stacks and converted into ammonium sulfate,
which was later sold to the eastern Washington farmers as fertilizer. This il-
lustrates another point. Legislation may, in effect, force a company to convert
wastes that had formerly been released into the environment into a useful
by-product.
What is often disconcerting to scientists is that agreements are sometimes
reached between states on the basis of a political bargaining position that has
little to do with the scientific background of the particular problem to be solved.
As Friedheim put it in the chapter "Ocean Ecology and the World Political
System" of Who Protects the Ocean?:

As a political scientist I can applaud such agreements; as an observer of ocean

problems I am aware of scientists' and ecologists' complaints that political
acceptability in a bargaining situation is more important than ecological
soundness. The result, they claim, is that many of the agreements reached will
be inadequate for dealing with the real world ecological problems.

Although preservation of the coastal environment has often had little to do

with the unilateral political action of extending territorial seas of coastal states,
there is at least one situation in which such action was taken strictly on that
basis. When the S.S. Manhattan, an oil tanker strengthened for ice-breaking, was
sent into the Canadian Arctic to test the feasibility of tanker transport of oil
from the north slope of Alaska to the North Atlantic, it posed a threat to the
Arctic marine ecology. Therefore, Canada passed, by rather swift legislative
action, the Arctic Waters Pollution Prevention Act, giving itself jurisdiction over
the prevention and control of pollution within 100 mi of its Arctic coast.
Although not strictly analogous to the Arctic legislation, regulations were also
enacted covering other special areas of Canada's east and west coasts under the
Canada Shipping Act.
The more recent announcements by the United States, Canada, and Mexico
of intent to extend their national jurisdictions to 200 mi have been largely based
on protection of fisheries that have been heavily exploited by foreign fishing
vessels and need immediate protection. However, at the same time that the living
resources will be protected, these coastal states will no doubt take action within
their newly proclaimed national jurisdictions against any acts leading to pollu-
tion, whether this be by dumping from vessels or by other activities of foreign
states. In terms of coastal pollution control by national legislation vis A vis
international conventions, there has been considerable support in debates at LOS
III for the rights of coastal states in preventing pollution from certain sources to
impose measures additional to and standards more stringent than the applicable
international requirements in areas within national jurisdiction. These are rights
CONTROL OF MARINE POLLUTION 287

similar to those extended in national legislation to states in the United States

and to provinces in Canada, which have jurisdiction over their internal waters.

Present Status of International Environmental Agreements

An effort has been made since World War II to achieve agreements on various
aspects of marine pollution control that particularly affect coastal states. A
number of events took place after the war that seemed to have accelerated the
process of negotiating international agreements. One of these was the atmo-
spheric testing of nuclear explosives by a number of the developed countries,
which resulted in atmospheric dispersal of radionucides on a worldwide scale.
Test ban treaties signed by a number of the nuclear powers in the early 1960s,
although meant to control the proliferation of nuclear arms, did have an
environmental component. Various agreements on radioactivity were possible to
enforce, primarily because governments generally control the use of radioactive
materials.
The second type of pollution that appeared to be amenable to international
control was that caused by oil. As early as 1926, the United States hosted an
international conference at which an attempt was made to develop an inter-
national convention for the control of pollution by oil from ships. This attempt
failed to develop an acceptable convention. It was not until 1954, at the
invitation of the British government, that a successful conference was held in
order to develop a convention on the prevention of pollution by oil. The
Inter-Governmental Maritime Consultative Organization (IMCO) was formed in
1958, and it has undertaken the responsibility of administering the original 1954
Convention, as well as a number of amendments that have been incorporated
since that time, and developing new conventions for controlling pollution from
ships, e.g., the 1973 International Convention for the Prevention of Pollution
from Ships (Inter-Governmental Maritime Consultative Organization, 1973). An
attempt was made to broaden the coverage of the latest Convention to include
not only oil, but other noxious substances carried by ships and ship-generated
garbage and sewage. Although the amount of pollution from ships by the latter
materials is relatively small compared to that from other sources, control of
pollution from ships is more easily enforced than from many land-based sources.
The other major source of marine pollution that could be controlled com-
paratively easily is that from dumping of various materials from ships and other
vessels. This is now controlled by the Convention for the Prevention of Marine
Pollution by Dumping of Wastes and Other Matter that was adopted in Novem-
ber 1972. It is commonly known as the London Convention and arose largely
through preparations for the UN Conference on the Human Environment
(United Nations, 1973) mainly in the Inter-Governmental Working Group on
Marine Pollution (United Nations, 1971). The Convention came into force in
288 MICHAEL WALDICHUK

Table I
International Conventions and Other Agreements for Control of
Marine Pollutiona
Conventions, Treaties, Status,
Protocols,Regulations, Responsible September
and Standards Pollutant Body 1976
General Marine Pollution
Convention on the Territorial Various UN In force
Sea and Contiguous Zone,
1958
Convention on the High Seas, Oil, wastes from UN In force
1958 exploration and
exploitation of
the seabed and its
subsoil, and radio-
active wastes
Convention on the Continental Any harmful agents UN In force
Shelf, 1958
Convention on Fishing and All deleterious UN Not yet in force
Conservation of the Living substances
Resources of the High Seas,
1958
Convention on the Prohibition Biologically hazardous UN Not yet in force
of the Development, and other toxic
Production and Stockpiling of substances
Bacteriological (Biological)
and Toxic Weapons and on
their Destruction, 1972
Protocol Relating to Other substances IMCO Not yet in force
Intervention on the High Seas than oil
in Cases of Marine Pollution
by Substances Other Than Oil
Convention on the Protection All substances Norwegian Not yet in force
of the Marine Environment of government
the Baltic Sea
Convention for the Prevention Wastes from land- French Not yet in force
of Marine Pollution from based sources government
Land-Based Sources
Convention on the Protection Environmentally Swedish Not yet in force
of the Environment between harmful activities government
Denmark, Finland, Norway
and Sweden

Oil Pollution
International Convention for Oil United Kingdom In force
the Prevention of Pollution of until establish-
the Sea by Oil, 1954 ment of IMCO
in 1958
Amendments to the Oil IMCO In force
International Convention for
the Prevention of Pollution of
the Sea by Oil, 1962
CONTROL OF MARINE POLLUTION 289

Table 1, continued

Conventions, Treaties, Status,

Protocols, Regulations, Responsible September
and Standards Pollutant Body 1976
Amendments to the Oil IMCO Not yet in force
International Convention for
the Prevention of Pollution of
the Sea by Oil, 1969
Amendments to the Oil IMCO Not yet in force
International Convention for
the Prevention of Pollution of
the Sea by Oil, 1971
International Convention Oil IMCO In force
Relating to Intervention on
the High Seas in Cases of Oil
Pollution Casualties, 1969
International Convention on Oil IMCO In force
Civil Liability for Oil
Pollution Damage, 1969
International Convention on Oil IMCO Not yet in force
the Establishment of an
International Fund for
Compensation for Oil
Pollution Damage, 1971
International Convention for Oil and other IMCO Not yet in force
the Prevention of Pollution substances
from Ships, 1973
Agreement Concerning Oil Government of In force
Cooperation in Dealing with the Federal
Pollution of the North Sea by Republic of
Oil, 1969 Germany
Agreement Concerning Oil Danish In force
Cooperation in Measures to government
Deal with Pollution of the
Sea by Oil, 1971

Radioactivity
Convention on Third Party Radioactive materials UN, IAEA In force
Liability in the Field of
Nuclear Energy, 1960
Convention Supplementary to Radioactive materials UN, IAEA Not yet in force
the Paris Convention on Third
Party Liability in the Field of
Nuclear Energy, 1963
Convention on the Liability of Radioactive materials UN, IAEA, Not yet in force
Operators of Nuclear Ships, IMCO
1962
Convention on Civil Liability Radioactive materials UN, IAEA Not yet in force
for Nuclear Damage, 1963
Treaty Banning Nuclear Radioactive materials UN, IAEA In force
Weapons Tests in the
290 MICHAEL WALDICHUK

Table 1, continued

Conventions, Treaties, Status,

Protocols,Regulations, Responsible September
and Standards Pollutant Body 1976

Atmosphere, in Outer Space

and Underwater, 1963
Treaty on the Prohibition of Radioactive materials UN, IAEA In force
the Emplacement of Nuclear
Weapons, and other Weapons
of Mass Destruction on the
Seabed and Ocean Floor and
on the Subsoil Thereof, 1971
Convention Relating to Civil Radioactive materials UN, IAEA Not yet in force
Liability in the Field of
Maritime Carriage of Nuclear
Material, 1971
Regulations for the Safe Radioactive materials UN, IAEA Adopted
Transport of Radioactive
Materials
Regulations for the Safe Radioactive materials UN, IAEA Adopted
Transport of Radioactive
Materials
Basic Safety Standards for Radioactive materials UN, IAEA Adopted
Radiation Protection
Standardization of Radioactive Radioactive materials UN, IAEA Adopted
Waste Categories
Regulations for the Safe Radioactive materials UN, IAEA Adopted
Transport of Radioactive
Materials

Ocean Dumping
Convention for the Prevention All wastes and other Instruments In force
of Marine Pollution by substances dumped placed with
Dumping from Ships and at sea Norwegian
Aircraft government
Convention for the Prevention All wastes and other IMCO (Instru- In force
of Marine Pollution by matter dumped at ments had been
Dumping of Wastes and sea placed with
Other Matter government of
Great Britain
and Northern
Ireland until
September
1976)

aModified from Waldichuk, 1973.

CONTROL OF MARINE POLLUTION 291

August 1975, and some of the ratifying states have brought their national
legislation into harmony with the International Convention.
Four conventions were signed in 1958 at the First Law of the Sea Con-
ference. Some of these had a pollution component, but how any control is to be
maintained internationally under these particular conventions is very vague
indeed. A summary of international conventions and other agreements to con-
trol marine pollution is given in Table 1, with an attempt to classify the types
and sources of pollution.

Concluding Remarks
In its "Annual Report-1975," the Council on Environmental Quality (1975)
states concerning the oceans:

The oceans, which cover two-thirds of the earth's surface, make it habitable.
They are the primary source of water vapor, which returns to the land as rain.
They moderate climate throughout the world, cool islands in the tropics, and
bring warm currents to parts of the far north and south that would otherwise
be frigid. They are the earth's main filtering system, first receiving our debris,
then decomposing and recycling it.
The oceans furnish oxygen for the planet's atmosphere and food for its
inhabitants. The world fisheries provide some 10 percent of mankind's animal
protein, and phytoplankton through photosynthesis produce about one-third
of the world's oxygen supply.
As important as the oceans are to human life, it seems irrational that mankind
would abuse them. Yet abuse is common enough, and serious enough, to
bring into question the future of marine ecosystems on which man depends.
These abuses may be summed up in three main categories-using the ocean as
a sewer, overexploiting marine resources, and polluting the oceans with oil.

The importance of the oceans needs little emphasis as this planet's last great
economic frontier, the potential source for enormous food supplies, the final
buffer against ecological catastrophe, and a recreational outlet for restoration of
body and spirit of man.
Barbara Ward, in the "Introduction-The Quantum Jump" of Towards an
Environmentally Sound Law of the Sea, displays a remarkably perceptive insight
into the emerging problems of the ocean environment, associated with the
current activity to exploit the oil and gas resources under the continental shelves
of the world in order to supply the growing energy requirements. She foresees a
similar rush to extract the hard mineral resources of the sea bottom, potentially
available at least in manganese nodules of the deep sea. Hallman recognizes the
problems associated with the burgeoning use of the oceans for various purposes
and introduces his part, "Law of the Sea and the Environment," with:
292 MICHAEL WALDICHUK

Barbara Ward's introduction demonstrates the overriding need for establish-

ment of a comprehensive, marine environmental management system, based on
a set of enforceable, credible internationally agreed rights and obligations
encompassing all actions which may affect the nature, resources or the
quality of the marine environment.

Hallman then proceeds to outline an international strategy designed to ensure

effective preservation and protection of the marine environment and its re-
sources. I don't think anyone can quarrel with some of the proposed solutions to
problems, which inevitably emerge in Law of the Sea negotiations. However,
what seems reasonable to an interested reader suddenly faces almost insuperable
obstacles in a forum with 150 nations, all having somewhat different points of
view based on national objectives and often spurred by a certain degree of
suspicion of motives, e.g., developed versus developing nations and flag states
versus coastal states. Even the nuances introduced or deleted by translation from
one language to another can be a hindrance in negotiations.
As nations engage in further negotiation on LOS III at the fourth substantive
session in New York, August 2-September 17, 1976, what are the main issues
and how do they relate to protection and preservation of the marine environ-
ment? Clearly the jurisdictional issue is the most serious. Most nations avoided
unilateral action before the session in Caracas in 1974 so as not to prejudice
agreement on coastal jurisdiction at the Law of the Sea Conference. However, as
depletion of living resources in coastal waters of nations becomes a serious
matter, one by one the member states are proclaiming an extended 200-mi
fishing or economic zone. This will clearly have an impact on agreements
formulated to protect and preserve the marine environment, since pollution
control in the part of the ocean where pollutant input is heaviest will come
under national jurisdiction. Where a pollutant introduced into the sea by one
nation affects another because of the transport by currents, international courts
already in existence could resolve any conflicts, and the 7Rail Smelter decision is
a well-established precedent in this respect.
The second issue of greatest concern at LOS III is seabed mining. This is one
use of the sea long proposed to be a heritage of all mankind and one for which
revenues should be equitably divided among the coastal and the disadvantaged
inland states. Seabed mining can also contribute substantially to environmental
degradation. Long before the first session of LOS III, the problems of marine
pollution arising from exploration and exploitation of the seabed were examined
by Subcommittee III of the UN Committee on the Peaceful Uses of the Sea-bed
and the Ocean Floor Beyond the Limits of National Jurisdiction.
It is suggested by Hallman in Towards an Environmentally Sound Law of the
Sea that the Seabed Authority proposed at LOS III could be empowered to
CONTROL OF MARINE POLLUTION 293

enforce certain standards of pollution control in seabed mining. To this end, he

states:

This body may have no more power than to issue licenses to exploit seabed
resources on a first-come, first-served basis. But the risk of polluting the
oceans from uncontrolled mining demands, in logic, that the Seabed Au-
thority should have the right to impose, according to the nature of each
seabed activity, strict standards against pollution, to grant licenses for ex-
ploitation to states or enterprises but only against evidence of ability to
comply with the required standards, to monitor the results and impose
penalties for non-compliance not only on enterprises but on their parent
governments-a provision which would excludL "ocean sovereignties of con-
venience": in the last resort, the licenses of offenders should be withdrawn.

Hallman's proposal has a great deal of merit. Pollution control in seabed

mining appears to be the one place where LOS III could have a distinct impact
on the matter of preservation of the marine environment. With respect to
land-based sources of pollution, international control would be extremely diffi-
cult by comparison.
Much has been said about the protection of our last bastion of defense, the
world's oceans, against the onslaught of man with his increasing population,
advancing technology, and growing demands for the products of his technology
and innovation for a better life. The critical ocean pollutants can be classified in
five categories: (1) metals, (2) synthetic chemicals, (3) petroleum hydrocarbons,
(4) radionuclides, and (5) solid wastes. However, except for some constituents
that could be precisely measured for a long time, e.g., certain radionuclides, little
is known about the worldwide distribution and ocean inventory of the critical
pollutants.
A baseline survey of the present level of critical pollutants in the water, biota,
and sediments of the world's oceans and in the principal entry routes (rivers,
coastal outfalls, and atmosphere) is required before trends can be recognized.
The effects of pollutants on marine organisms and ecosystems, particularly at
sub-acute concentrations over long periods, must be better understood. Improved
knowledge of marine processes that affect transfer of pollutants through the
different compartments of the marine environment and food web will enable us
to manage and control waste disposal and pollution in the sea better.
International conventions have been adopted for control of marine pollution
from ships and from dumping waste at sea. International global agreements are
still needed for the control of shore-based sources of marine pollution, particu-
larly through rivers, from coastal outfalls, and through the atmosphere. It would
appear at this time that if LOS III is successful in developing a convention it may
be able to strengthen pollution control from ships, particularly tankers proceed-
294 MICHAEL WALDICHUK

ing through narrow passages such as the Strait of Malacca, control pollution
from exploitation of the seabed and subsoil thereof, and achieve some agreement
in principle for stemming land-based sources of pollution. Much of the success
achieved in these areas will depend on support from developing countries, and
particularly from the disadvantaged inland states. One way to help ensure this
cooperation is to transfer technology to developing countries for pollution
assessment and control.
What are the relative merits of the documents reviewed as an aid to under-
standing the global issues involved in protection and preservation of the marine
environment in the context of the Law of the Sea? A good summary of the
international background to global environmental protection is given by
Towards an Environmentally Sound Law of the Sea. A rational approach is
taken to provide a framework on which a convention for protection of the
marine environment can be constructed. Who Protects the Ocean? provides the
best background material for a general understanding of the whole spectrum of
issues involved in global marine environmental protection, including scientific,
political, socioeconomic, and legal matters. Hargrove's book might be con-
sidered the "handbook" for understanding. International Marine Environ-
ment Policy: The Economic Dimension is very definitely slanted to economics
and policy on marine environmental protection in international maritime affairs.
It is quite academic. Some of the points discussed are interesting and thought
provoking, but it is doubtful if they would help much in formulating an
acceptable convention on protection and preservation of the marine environ-
ment. Finally, a few scientific uncertainties in marine pollution are given in
Disposal in the Marine Environment. It makes a plea for more research on
particular aspects of the marine pollution problem where the unknowns are most
serious. The document would be of little help in developing a convention, but it
does point to the need for investigation if measurement and assessment of
marine pollution for better control are to be effective.
In appraising the documents, I should point out that I had to look at their
relative contributions in terms of practical application to development of work-
able conventions on the Law of the Sea. There is a need to develop explicit
strategies to provide for more rational marine environmental management.
Professional and scholarly activity, even along theoretical and academic lines,
should continue to contribute to this objective. However, the development of
better or more complete knowledge by marine scholars and professionals is not
enough. Decision makers, and ultimately the public, will need better understand-
ing of the complex issues of marine environmental management. Much is left to
be done in this regard. But the documents reviewed have in their own way
contributed substantially to fill the gap.
CONTROL OF MARINE POLLUTION 295

Notes
'John Lawrence Hargrove (ed.), Who Protects the Ocean?, 1975), 233 pages; Charles S.
Pearson, InternationalMarine Environmental Policy: The Economic Dimension, 1975), 127
pages; Robert M. Hallman (with an Introduction by Barbara Ward), Towards an Environ-
mentally Sound Law of the Sea, 1974), 83 pages; and Ocean Disposal Study Steering
Committee, Ocean Affairs Board, Ocean Science Committee, Commission on Natural Re-
sources of the National Research Council, Disposal in the Marine Environment-An Oceano-
graphicAssessment, 1976), 76 pages.
'Meredith 0. Clement, Professor of Economics at Dartmouth College; Anthony D'Amato,
Professor of Law at Northwestern University School of Law; Robert L. Friedheim, Director
of the Law of the Sea Project at the Center for Naval Analyses; Edward D. Goldberg,
Professor of Chemistry at Scripps Institution of Oceanography; L. F. E. Goldie, Professor of
Law at Syracuse University College of Law; and David Menzel, the Skidaway Institute of
Oceanography.
'Externalities are defined as the direct imposition of costs or benefits on one economic
agent as the incidental result of the activities of another economic agent. For example, if a
chemical plant discharges toxic effluents into a river that is a common property resource
and produces a downstream fish kill, the costs of the fish kill are external to the plant, but
represent direct costs to others.

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