How is ocean pollution regulated? An overview from the 1970s to today.

There is already a robust framework for ocean protection which obliges States to protect the marine environment on both international and regional levels, with binding instruments backed up by so-called soft (non-binding) law. Whether binding or non-binding in nature, the number of instruments relating to marine pollution has grown steadily since the 1972 UN Conference on the Human Environment in Stockholm kick-started the development of environmental law and policy.

It all began in Stockholm. The 1972 Declaration of the UN Conference on the Human Environment was the first international document to recognize the right to a healthy environment. It established duties and obligations of States with respect to the human environment, setting out 26 principles for States to follow in preserving and improving it, including two of particular relevance to the marine environment: 

Principle 7: "States shall take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea"; and 

Principle 21: "States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction."  

The Declaration also established the principle of cooperation, recognizing that countries should join efforts in order to meet the global challenges of a shared environment.

Adopted in the same year as the Stockholm conference, the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter was one of the first international legal instruments regulating ship-sourced pollution. It included a black list of wastes which may not be dumped at sea and a grey list of wastes which could only be dumped under specific conditions. Just one year later in 1973, the International Convention for the Prevention of Pollution from Ships (MARPOL), regulating operational and accidental causes of pollution followed, reflecting the growing concern relating to the impact of the global shipping industry on the ocean. Over the years, as new ocean industries and new potential pollutants have emerged, the international community has reacted accordingly and many instruments have been amended and updated. MARPOL is perhaps the best example of this, from the original text adopted in 1973, the number of annexes appended to it has grown, starting in 1983 when annexes were added to cover oil (annex I) and noxious liquid substances (annex II). Further annexes on harmful substances carried in packaged form (annex III), sewage (annex IV), garbage (annex V) and air pollution (annex VI) followed. 

A number of regional instruments were put into place in the 1970s, showing an increased awareness of the need for neighbouring States to work together in order to protect the waters under their collective jurisdiction. By way of example, the Paris Convention for the prevention of marine pollution from land-based sources, concerning the area of the North Sea and North-east Atlantic, and the Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Area, were both adopted in 1974. In 1976 the Barcelona Convention for Protection Against Pollution in the Mediterranean was adopted (this was the very first convention to fall under the UNEP regional seas programme). In 1978, the Kuwait Regional Convention for Co-operation on the Protection of the Marine Environment from Pollution was adopted covering the shared waters of Bahrain, Iran, Iraq, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates. 

Regional agreements such as these, where the texts often concentrated on the prevention of ship-sourced pollution, developed in the 1980s to address land-based sources and the establishment of marine protected areas, and amended in the 1990s to include Environmental Impact Assessments (EIAs), have proved themselves to be flexible in their scope and progressive in terms of providing a platform for States to cooperate and share information on their work to protect the marine environment. Any State breaking the agreements could be called before the relevant body for dispute settlement, this is sometimes a special commission established with this sole purpose but usually an arbitral tribunal.

Moving on to New York, to the 1980s and back to soft law: in 1982, the UN General Assembly adopted the World Charter for Nature, a code of conduct for the protection and preservation of global natural habitats and resources, which established five "principles of conservation by which all human conduct affecting nature is to be guided and judged". While clearly not binding in nature, the Charter provides an ethical standard for the treatment of the environment. That same year, the General Assembly adopted the Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of Nation Jurisdiction which establishes the seabed, ocean floor and subsoil thereof and the resources of this Area to be the common heritage of (hu)mankind, and includes a call on Sates to take appropriate measures and to cooperate in "The prevention of pollution and contamination, and other hazards to the marine environment, including the coastline, and of interference with the ecological balance of the marine environment... and the prevention of damage to the flora and fauna of the marine environment". Later embedded in the text of the United Nations Convention on the Law of the Sea (UNCLOS), this declaration moved from soft law to become binding upon States which are party to the law of the sea convention. 

UNCLOS, drafted between 1973 and 1982 by the Third United Nations Conference on the Law of the Sea, is the main legal text regulating the uses of the ocean. One of the most comprehensive treaties ever created by a UN conference, UNCLOS has become known as the constitution for the oceans. As noted in its Preamble, the convention aims to "promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment" through the codification and progressive development of the law of the sea in order to "contribute to the strengthening of peace, security, cooperation and friendly relations among all nations in conformity with the principles of justice and equal rights".

UNCLOS establishes a legal regime under which all ocean-related activities should be carried out. As a framework treaty or so-called 'umbrella convention', UNCLOS spans numerous international agreements relating to the ocean, including conventions related to ocean affairs, ocean and coastal management, navigation, transport and trade, exploitation of resources, environmental protection and marine science.

While clearly a product of the 1970s, UNCLOS has nevertheless managed to retain its relevance into the 21st century, with further UN agreements drafted under the umbrella of the convention addressing issues such as seabed mining and the protection and conservation of straddling fish stocks, and developing the provisions of the Convention relating to these matters. These will soon be joined by what has become known as the High Seas Treaty, addressing the protection and preservation of biological diversity beyond national jurisdiction. The drafters of the Convention were also careful enough to allow for a broad interpretation of its provisions: while UNCLOS does not, for example, address climate change directly, it can be interpreted and applied so that the impact of climate change on the ocean can still be addressed under its provisions on the protection and preservation of the marine environment.

The protection of the marine environment is one of the most important themes taken up by UNCLOS and Part XII is dedicated to it. It calls upon States to protect and preserve the marine environment while creating an obligation for States to combat marine pollution and provides a definition of pollution as follows:
"'pollution of the marine environment' means the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities".

Article 192 provides that "States have the obligation to protect and preserve the marine environment".
Article 194 of the Convention addresses 'Measures to prevent, reduce and control pollution of the marine environment' and reads as follows:

"1. States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonize their policies in this connection.

2. States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.

3. The measures taken pursuant to this Part shall deal with all sources of pollution of the marine environment. These measures shall include, inter alia, those designed to minimize to the fullest possible extent:

(a) the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping;

(b) pollution from vessels, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional discharges, and regulating the design, construction, equipment, operation and manning of vessels;

(c) pollution from installations and devices used in exploration or exploitation of the natural resources of the seabed and subsoil, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices;

(d) pollution from other installations and devices operating in the marine environment, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices.

4. In taking measures to prevent, reduce or control pollution of the marine environment, States shall refrain from unjustifiable interference with activities carried out by other States in the exercise of their rights and in pursuance of their duties in conformity with this Convention.

5. The measures taken in accordance with this Part shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life."

Article 197 of UNCLOS puts an obligation on States to work together on either a global or regional basis, either directly or by way of an international organization, in order to formulate and elaborate "international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features".

Here again, we see the effectiveness of the way UNCLOS works as an umbrella convention by supporting the work of regional bodies in protecting the environment.

Some examples of further relevant provisions of UNCLOS relating to pollution are as follows:

• exploitation of resources

article 193: "States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment."

• seabed activities

article 208: "Coastal States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment arising from or in connection with seabed activities subject to their jurisdiction and from artificial islands, installations and structures under their jurisdiction."

• environmental impact assessments

article 206: "When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments."

New challenges for ocean protection are clearly growing: the effect of climate change on the ocean and the potential role the ocean can play in mitigating this effect will involve new developments in areas such as ocean-related carbon dioxide removal technologies that the architects of UNCLOS could not have envisaged back in the 1980s. Nevertheless, the protective regime established by UNCLOS can be applied when looking at rising ocean temperatures, sea-level rise, the changing chemical composition of the ocean, plastic pollution, or when considering the potentially negative impact of new industrial uses of the ocean. UNCLOS provisions maintain their relevance to action in response to the impacts of climate change: obligations relating to the protection and preservation of the marine environment, including from atmospheric pollution, the conservation and management of marine living resources, the conduct of marine scientific research and dissemination of data and information, and the development and transfer of marine technology can all be applied.

Going back to the timeline, a number of regional agreements where further developed in the 1980s, of note are the 1984 Convention for Cooperation in the Protection, Management and Development of the Marine and Coastal Environment of the Atlantic Coast of the West, Central and Southern Africa Region (Abidjan Convention), providing an overarching legal framework for all marine-related programmes along the 14,000 km coastline of West, Central and Southern Africa (but interestingly no formal dispute resolution mechanism) and the 1986 Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (Cartagena Convention).

At the international level, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, negotiated in the 1980s to control the export and dumping of toxic waste by industrialized States in the developing world (what became known as the NIMBY (Not In My Back Yard) syndrome), was adopted in 1989. As with MARPOL, amendments to the Annexes have been developed over the years, ensuring that the Convention maintains its relevance.

In the 1990s many regional agreements were brought up to date and amendments, action plans and protocols were added to the original texts in order to step up to the latest challenges facing the marine environment. By way of example, in 1990 the Kuwait Protocol developed the original 1978 Kuwait Convention to include research, monitoring, information exchange, cooperation in solving problems and the application of Environmental Impact Assessments (EIAs). It also included the elements of compensation and recovery of damages, offering a specifically-created judicial commission for the settlement of disputes. The Helsinki Convention and Bucharest Convention were similarly updated in 1992 and a new agreement, the Bamako Convention came into force in 1998. Based on the Basel Convention and geared specifically at the African Union, it is actually stricter, including more waste (such as radioactive waste) than the Basel Convention.

Returning to soft law and moving to Rio de Janeiro, we see the main outcome document of the 1992 Rio Earth Summit, the Report of the United Nations Conference on Environment and Development or Agenda 21, with a whole chapter dedicated to the ocean. Chapter 17, on the 'Protection of the oceans, all kinds of seas, including enclosed and semi-enclosed seas, and coastal areas and the protection, rational use and development of their living resources', commits States 

"in accordance with the provisions of the United Nations Convention on the Law of the Sea on protection and preservation of the marine environment ... in accordance with their policies, priorities and resources, to prevent, reduce and control degradation of the marine environment so as to maintain and improve its life-support and productive capacities". 

Another key document from this conference was the Rio Declaration, introducing principles such as the precautionary principle, State responsibility to ensure that resource exploitation does not cause damage to the environment of third States or to areas beyond national jurisdiction, the need to develop national law regarding liability and compensation for victims of pollution or environmental damage, and including the Polluter Pays Principle in accordance with which the costs of pollution are allocated to the polluter. Further important achievements of the summit were the adoption of the United Nations Framework Convention on Climate Change (UNFCCC) and the Convention on Biological Diversity (CBD).

Two years later the IMO widened the scope of the marine environmental pollution addressed by the London Convention in a new Protocol, forbidding States to cause or permit pollution from either marine or terrestrial sources. Marine pollution was now considered to include not only waste directly dumped into the sea but also waste washed into the ocean from land by wind, rain, or rivers, whether directly or indirectly introduced into the marine environment. The application of a "precautionary approach" was included as a general obligation and a "reverse list" approach was adopted, implying that all dumping is prohibited unless explicitly permitted. In addition, incineration of wastes at sea was prohibited, as too the export of wastes for the purpose of dumping or incineration at sea. 

Since the turn of the century a number of important steps have been taken in regulating marine pollution on an international level. The Stockholm Convention on Persistent Organic Pollutants (POPs) was adopted in 2004, a treaty drafted to safeguard human health and the environment from chemicals that remain intact in the environment for long periods and become widely distributed geographically. While not referring specifically to pollution of the marine environment, the convention is nevertheless of relevance, particularly in relation to the POPs sometimes added to plastics as fire retardants.

Turning to Hawai'i, the Fifth International Marine Debris Conference (5IMDC), hosted by NOAA and organised with UNEP in 2011, established the Honolulu Strategy: A Global Framework for the Prevention and Management of Marine Debris, a framework for a comprehensive and global effort to reduce the ecological, human health, and economic impacts of marine litter. It is intended for use as a planning tool, common frame of reference for collaboration, and a monitoring tool on multiple levels — global, regional, national, and local — involving the full spectrum of civil society, government and intergovernmental organizations, and the private sector. The Honolulu Strategy specifies three overarching goals focused on reducing land-based and sea-based sources of marine debris as well as accumulated marine debris on shorelines, in benthic habitats, and in pelagic waters. The framework offers useful strategies for combatting marine pollution, there are however no compulsory elements binding on its signatories.

The 2030 Agenda for Sustainable Development set in 2015 by the UN includes SDG14 to ‘Conserve and sustainably use the oceans, seas and marine resources for sustainable development’. As with all UN resolutions or agendas, signatories to the Agenda are not bound by these declarations but their power is still relevant, for marine pollution in particular SDG 14.1, with the goal to "prevent and significantly reduce marine pollution of all kinds, particularly from land-based activities, including marine debris and nutrient pollution" by 2025. 

Building on the momentum of SDG14, the outcome declaration of the 1st Ocean Conference to Support the Implementation of Sustainable Development Goal 14, held in New York in 2017, entitled Our ocean, our future: call for action underlines the international community's support for SDG14 and commits States to

"Accelerate actions to prevent and significantly reduce marine pollution of all kinds, particularly from land-based activities, including marine debris, plastics and microplastics, nutrient pollution, untreated wastewater, solid waste discharges, hazardous substances, pollution from ships, and abandoned, lost or otherwise discarded fishing gear, as well as to address, as appropriate, the adverse impacts of other human-related activities on the ocean and on marine life, such as ship strikes, underwater noise and invasive alien species."

193 States agreed to this commitment at the Ocean Conference and a further near 1,400 voluntary commitments were made by governments, the United Nations system, civil society organizations, academia, the scientific community, and the private sector for concrete action to advance the implementation of SDG 14. The UN went on to launch nine thematic multi-stakeholder Communities of Ocean Action (with Marine Pollution as one of the nine communities) as a means to follow-up on the implementation of these voluntary commitments. Each community is coordinated by a focal point working together with the UN Special Envoy (Ambassador Peter Thomson is the Special Envoy for the Ocean) and the UN Department of Economic and Social Affairs. A first assessment of the impact of the commitments may be read here.  

In 2017, the UN Environmental Assembly (UNEA), based at UNEP in Nairobi, issued an implementation plan Towards a Pollution-Free Planet, a ministerial declaration which describes the pollution challenge, explores what is already being done to address pollution, and proposes 50 focused and actionable interventions to address pollution in all its forms. Having adopted 4 resolutions dedicated to marine litter and microplastics, UNEA decided in 2022 to start negotiations for a legally binding global agreement on plastics and the associated problems of marine litter and microplastics. Detailed information on this process and the regulation of ocean plastic pollution can be found here.

Moving into the 2020s there is evidence of a growing push for ocean action. Both the UN conference on the environment, Stockholm+50: a healthy planet for the prosperity of all – our responsibility, our opportunity, 50 years on from the first UN Conference on the Human Environment in 1972, and the 2nd UN Ocean Conference in Lisbon, were held in 2022, showing renewed support by UN Member States to combat marine pollution, as seen in the outcome documents of both conferences, the report Stockholm+50 final report and the Lisbon declaration Our ocean, our future, our responsibility, which recognises the importance of: 

“Reducing marine pollution, including marine plastic litter and nutrient pollution, contributing to comprehensive life-cycle approaches that include improved waste management and developing new, biodegradable materials that can reduce additional marine plastic litter”.

The Agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, adopted in 2023 after near 20 years of negotiations, shows States’ continued commitment to ocean protection, establishing a governance regime for the areas beyond national jurisdiction and in particular a structure for the establishment of Environmental Impact Assessments. The Agreement provides in article 22 for Parties to:

“ensure that the potential impacts on the marine environment of planned activities under their jurisdiction or control, which take place in areas beyond national jurisdiction, are assessed as set out in this Part before they are authorized”

this also relates to any activity within national jurisdiction which may cause substantial pollution of or significant and harmful changes to the marine environment in areas beyond national jurisdiction and in article 24 for an EIA: 

“[w]hen a planned activity may have more than a minor or transitory effect on the marine environment or the effects of the activity are unknown or poorly understood, the Party with jurisdiction or control of the activity shall conduct a screening of the activity”.

The race for ratification of the Agreement has begun - with the goal for 60 ratifications to have been submitted by the 3rd UN Ocean conference, which will take place in Nice in June 2025. With its entry into force, work can begin on setting up a robust protection regime for the marine environment of the High Seas, including the procedure for the establishment of High Seas Marine Protected Areas (crucial if we are to reach the target of 30% protection of the ocean by 2030) and, above all, the procedure for EIAs so that any new ocean activity can be evaluated in advance to prevent future ocean pollution.