Regional Cooperation for Marine Pollution Contingency Respon

Regional Cooperation for Marine Pollution Contingency Respon

作者：张相君  发表于《国际法学研究》2008年9月

Abstract  With economic developments in Southeast Asia, the South China Sea has been demonstrating its ever greater importance to all its riparian states, economically, geopolitically and environmentally. Nonetheless, the South China Sea is now one of the least protected sea areas among all the enclosed and semi-enclosed seas. Of all the environmental threats, marine pollution is undoubtedly one of the primary; and among all the causes of marine pollution, grave accidental oil spillage is undoubtedly one of the most destructive forces. With research on practices in other regional seas and an examination of the situation in the South China Sea, the author proposes to establish a systemof cooperation in combating pollution resulting from emergencies in this sea area. While establishing such a system, China should recognize its indispensable role and push forward the proposal to establish the policy.

Keywords     regional cooperation, contigency response, marine environment

摘要 随着东南亚地区的经济发展，南（中国）海的重要性越来越为各沿海国所承认，无论是在经济、地理还是环境方面。但是，和其他闭海和半闭海相比，南（中国）海却是得到保护最少的一个区域。在南（中国）海所面临的所有环境问题中，海洋污染无疑是最主要的一个问题；在造成海洋污染的各种因素中，重大溢油事故无疑是最具破坏力量的一种因素。基于对南（中国）海和其他区域海洋实际状况的比较分析，笔者认为应该在此区域内确立一种合作对抗海洋污染的应急机制。在确立该机制的过程中，中国也应该意识到它在此区域内不可或缺的地位并积极推进确立此项机制。

关键词  区域合作，应急反应，海洋环境

Introduction

With economic developments in Southeast Asia, the South China Sea has been demonstrating its ever greater importance to all its riparian states, economically, geopolitically and environmentally. Nonetheless, the South China Sea is now one of the least protected sea areas among all the enclosed and semi-enclosed seas. Disputes over sovereignty and jurisdiction between its coastal states have impeded regional cooperation in combating pollution. On the request of the Coordinating Body on the Seas of East Asia(COBSEA), the United Nations Environment Programme(UNEP)and the Global Environment Facility(GEF)launched a project, Reversing Environmental Degradation Trends in the South China Sea and Gulf of Thailand, in 2002. According to the research findings made by UNEP/GEF, the South China Sea has been suffering from land-based pollution, over-fishing, unreasonable offshore and coastal development, and is threatened by the present unsustainable exploration activities … One of the most bio-diversified areas is at risk of disappearing in the coming century.[1]

Of all the environmental threats, marine pollution is undoubtedly one of the primary; and among all the causes of marine pollution, grave accidental oil spillage is undoubtedly one of the most destructive forces. This has been proved by numerous accidents in history, such as Torrey Canyon, Erika, Prestige, and so on, which also indicates the necessity for all the coastal states, including China, to cooperate in protecting the marine environment.

With research on practices in other regional seas and an examination of the situation in the South China Sea, the author proposes to establish a systemof cooperation in combating pollution resulting from emergencies in this sea area. While establishing such a policy, China should recognize its indispensable role and push forward the proposal to establish the policy.

In terms of environmental protection, all regional seas share a common characteristic, which relates to their limited capability to decontaminate. As for a definition for “regional seas”, there is no generally accepted one. The term “regional sea” used in the UNEP Regional Seas Program may shed light upon such an issue, which in practice has the same meaning as the terms “enclosed sea” and “semi-enclosed sea” used in the United Nations Convention on the Law of the Sea (UNCLOS). According to UNCLOS, enclosed and semi-enclosed sea means:

a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States.[2]

The clear geographical boundary of a regional sea, its limited capability to decontaminate and its vulnerability to grave oil spillage require cooperation among the states within the region to combat pollution. In UNCLOS, there are provisions on enclosed and semi-enclosed seas which set out obligations for states bordering an enclosed or semi-enclosed sea to cooperate. In fact, such provisions were inspired by the implementation of regional marine environment protection conventions prior to UNCLOS in 1982.[3]The definite geographical boundaries of a regional sea naturally make it a manageable unit, which won’t be too small to count for little, or too large to be managed.[4]Similar, more recent conventions may also justify a regional way to tackle marine environmental problems.[5]

Compared with the high seas, enclosed or semi-enclosed seas are more vulnerable to pollution accidents and more affected by the activities of bordering states, and thus they need a legal framework for marine environment protection different from the one set out by international conventions such as UNCLOS. Conventions like UNCLOS set out rules for marine activities and are internationally accepted, but they may not have enough considerations specifically for particular regions. Due to the definite geological boundaries and the similar historic backgrounds of adjacent states, their exploration activities and the environmental issues thus raised, regional cooperation will cater for the need of specific regions much better than cooperation under those internationally accepted conventions. When a regional policy is more attractive to states, they are more willing to ratify conventions governing regional issues and to fulfill their treaty obligations.

Such an argument may find its support from the development of regional ways to protect the marine environment. In 1967, the Torrey Canyon accident shocked the international community and became a propelling force for the development of international law on environmental protection, in particular marine environmental protection, in the following two decades.[6]Henceforth marine environment protection began to attract attention from the whole international community, which subsequently became one of the most remarkable subjects in international law.

Due to the Torrey Canyon accident, states bordering the North Sea took the lead in regional cooperation to tackle emergent oil spills, which resulted in the conclusion of the Agreement for Cooperation in Dealing with Pollution of the North Sea by Oil in 1969 (hereafter referred as the 1969 Bonn Agreement). It was and is still unique for it took only two months for states bordering the North Sea to conclude such an agreement and bring it into force.[7]Internationally, the convening of the United Nations Conference on the Human Environment marked the commencement of the international community taking actions to protect environment. Based on the Action Plan for the Human Environment[8]adopted at this conference, the United Nations Environment Program (UNEP) was launched to manage and coordinate environmental protection internationally. The UNEP handled environmental problems by a three-step approach, which was also known as a programmatic approach.[9]As for marine environment protection, it was recognized by the Governing Council of UNEP as one of the priorities for actions. The Regional Seas Program (RSP) thus had its inception in 1974, and the regional approach taken by the North Sea countries undoubtedly played a part in it. The regional approach was also taken with regard to other regional seas, such as the Baltic, the Mediterranean being the most prominent of these.

Since 1970s, many conventions on marine environment have been concluded, both internationally and regionally. For the 18 regional seas, there are now 14 regional conventions on marine environment and a number of relevant protocols addressing specific issues. The protocol on emergency spills, including oil and other hazardous and noxious substances, is the one attached to and enforced by most of the regional seas conventions.

As one of the semi-enclosed seas, features of the South China Sea include busy waterways, dense sea routes, diversities between coastal states in terms of economic development and political systems, which expose this sea area to potential pollution crises, such as those caused by oil spills, and create difficulties in inter-state cooperation to combat pollution. Whatever discrepancies there might be between coastal states, once pollution accidents occur, there is no doubt that it is they which suffer and have to deal with the attendant problems.

All regional seas are pertinent to the territory of littoral states. Tankers entering and leaving ports are thus quite frequent, which makes the sea routes[HEJP1] , especially tanker routes, quite densely used. Furthermore, for considerations of safe and economic transportation, most tankers would choose sea routes near the land so that they may take advantages of the port facilities set by coastal states and may get helped in time when ships may be endangered by operational or accidental causes.Correspondingly, there is a high possibility of oil spill accidents which may cause grave pollution. Most known serious oil spill accidents have occurred near coastal states, causing severe environmental damage because of the low speed of water body exchange with the high seas which is a feature of closed or semi-closed seas. Since the coastal states in such areas rely on navigation, fishing, amenities and other legitimate uses of the sea for their economies, the consequences of a severe spillage are more than just environmental.[10]

For these reasons, most of the states bordering regional seas take oil spillage as one of the primary environmental problems and have adopted protocols to deal with it. Besides, although there have been considerable technical improvements of shipping facilitation, such as the Traffic Separation Scheme and the double-hull tanker requirement to reduce the probability of oil spill accidents, what has been demonstrated is that such improvements are only be effective to control potential operational pollutions. As for the more disastrous accidental pollutions, such improvements hardly have any effects. According to the International Tanker Owners Pollution Federation Limited (ITOPF), accidents causing oil spillages over 700 tons are usually not due to operational failures, as the following data show.

According to the ITOPF, among the incidence of spills over 700 tonnes, groundings account for 34.2 percent, collisions for 28.4 percent, hull failures for 12.4 percent, fires and explosions for 8.6 percent, loading and discharging for 8.6 percent, unknown causes for 7.5 percent, and other operations for 0.3 percent.[11]It seems to be a sad situation since such data may indicate that the more disastrous oil spill accidents are the less we can do to prevent them from taking place. On the other hand, it confirms the necessity to cooperate regionally or globally to mitigate the result of such accidents to as far as possible.

The South China Sea is no stranger to oil spillages. Since 1975, the Malacca Straits have witnessed several oil spill accidents.[12]More than half of the oil imported into China, Japan and Korea must be transported via this sea area,[13]which spontaneously raises the risk of oil spillage. According to other regional seas schemes, regional cooperation to combat such pollution accidents is the preferable approach,[14]which may highlight the way to resolve environmental problems in the South China Sea, especially on how to deal with emergent oil spill accidents.

Compared with other regional seas, the South China Sea is now facing not only environmental challenges, but more complicated disputes over sovereignty and jurisdiction concerning islands and maritime zones. Due to such complicated situations, the coastal states are very cautious when dealing with issues relating to disputed areas. Thus, environmental protection in the South China Sea has been overlooked for decades compared to that in other regional seas. So far fortunately no serious oil spill has occured close to the shore, but how much longer can we rely on such good fortune?

In addition to the danger of oil spillage, there are other environmental risks in the South China Sea. According to the regional profile of the East Asian Seas region:

The threats to the region are just as varied, and include erosion and siltation from land development, logging and mining, blast fishing in coral reefs, cutting and conversion of mangroves, overfishing, unimpeded coastal development and disposal of untreated wastes.[15]

All these problems make it necessary for the South China Sea coastal states to cooperate over marine environmental protection. While many factors especially political wills affect disputes resolution, threats to the marine environment including those caused by major oil spill accidents will not consider political wills at all. Thus, the coastal states are obliged to cooperate in resolving the most urgent issues. Precedents in other regional seas indicate that the pollution caused by oil spill accidents is undoubtedly such an issue.

Although it is necessary for the coastal states in the South China Sea to cooperate in combating pollution in case of emergency, disputes among these states, especially disputes over the Spratly Islands, have impeded such cooperation for years. The Spratly Islands are situated around rich gas and oil reserves and sea lanes of important transportation interests. While all the coastal states may make claims and realize them, the marine environment must be capable of accommodating the realization of all those interests. Once it is irretrievably polluted, all those claims will be meaningless.

Such a viewpoint has been clearly expressed at the United Nations Conference on the Human Environment. In the preamble of the 1972 Stockholm Declaration, it is unambiguously stated that there existed a tension between human development and environment protection:In our time, man’s capability to transform his surroundings, if used wisely, can bring to all peoples the benefits of development and the opportunity to enhance the quality of life. Wrongly or heedlessly applied, the same power can do incalculable harm to human beings and the human environment.[16]

Any reconciliation of such tension requires the international community and national governments to balance economic developments with environmental protection, although the balancing point is difficult to be located. We may search for such a balancing point through the development of marine environment protection under the auspices of UNEP/RSP for each regional sea. Because it caters for specific needs in specific regions, such a regional way has been proved to be effective and accepted by many regions. The practice in the North Sea indicated that when there was serious unbalance between economical and environmental interests, demonstrated by serious oil spill accident, bordering states would soon agree to take actions. In 1983, the 1969 Bonn Agreement was replaced by a new agreement, the Agreement for Cooperation in Dealing With Pollution of the North Sea by Oil and Other Harmful Substances (hereafter referred as the 1983 Bonn Agreement),to cover accidents caused by hazardous and noxious substance. It took six years for the new agreement to be ratified and brought into force.[17]

In the North Sea protection scheme, there had been a number of marine protection conventions to deal with different specific issues in the first 20 years. In addition to the Bonn Agreement, there were the Oslo Convention for the Prevention of Pollution by Dumping from Ships and Aircraft for dumping at sea, and the Paris Convention for the Prevention of Marine Pollution from Land-based Sources for land-based pollution. And, later in 1990s, for the whole North East Atlantic region, there was a new convention on accidental pollution: the Agreement for Cooperation in Protecting the Shores and Coastal Waters of the North East Atlantic Ocean form Accidental Pollution by Oil and Other Harmful Substances/Lisbon Accord.[18]Although in 1992, the Oslo Convention and the Paris Convention merged into the 1992 Oslo-Paris Convention,[19]the updated 1983 Bonn Agreement is still a convention on accidental pollution. Such an approach is called a piecemeal approach, which means a specific convention is adopted for a specific issue.

Theoretically, such an approach will be the most effective way for states bordering a regional sea to tackle marine environmental problems since it may take into account the specific requirements of specific aspects of marine environment, including land-based pollution, dumping at sea, accidental pollution and so on. Practically, such an approach will demand a high degree of economic development which could afford the high cost of environment protection, and a high concurrence of political willingness which can get different agreements accepted and enforced.

The states which border the North Sea region and the wider North East Atlantic are all developed industrial countries with similar cultural and political values.[20]The same level of economic development and close relationships with each other help them work willingly together to set out goals for marine environmental protection. This sense of identity to a great degree made it easier for states to cooperate on concluding and enforcing legally binding agreements and on carrying out non-legally binding political commitments[微软用户2] . Actually this approach may tackle marine environmental issues more specifically and more effectively, while it needs support from better political and economic capabilities to fulfill treaty obligations.

As for the Mediterranean region typically administrated by UNEP and known as the “cradle for Regional Seas Program”, things are totally different. In the Mediterranean, there is a great gap in economic development between European and African states. Due to the colonial period from the mid-nineteenth century to the twentieth century, African states have been influenced by the European states politically. Such discrepancies in economic development between South and North made the littoral states greatly divided in their respective capabilities to fulfill obligations under international conventions. To adjust to such a situation, a convention-protocol approach found its origin in the Mediterranean, which allows member states to find a most appropriate scheme for making commitments. Under this convention-protocol model, there should be a framework convention to set rules on decision-making procedures, information exchange and primary general obligations.[21]Once the framework convention is concluded, more specific obligations are set down in respective protocols.

Generally, a member state will have to commit itself to marine environment protection by signing and approving or acceding to the marine environment protection convention. There will be respective protocols for specific problems, such as land-based pollution, dumping at sea, offshore oil and gas exploration, specially protected areas, hazardous waste and emergent pollution. A member state will have to approve at least one protocol, and commit itself to approve other protocols when it is capable of doing so.

Such a convention-protocol approach has been applied to other regional seas since it can bridge gaps between industrial and underdeveloped countries, especially gaps caused by different levels of economic development and capabilities to fulfill treaty obligations. With the support of the UNEP, almost all other regional seas under its auspices take this approach for marine environmental protection without doubting its applicability at all. Therefore, it is also known as the model and the best working example of regional cooperation agreements.[22]According to Gavouneli, inheriting a model in this way without considering the context is not justifiable since the applicability of a certain approach is decided by the certain situations of a region.[23]

This convention-protocol approach is justified and applicable in the Mediterranean for it took into account the specific situations of the Mediterranean. Before the launching of the UNEP, France had initiated regional cooperation to protect the marine environment by using its political, economic and scientific advantages in the region.[24]The leading role France played in marine environment protection was critical to the subsequent Mediterranean Action Plan since there needs a dominant member in the region to realize goals for regional cooperation. France hoped to exert its political influence over the Mediterranean region and took the leading role in marine environmental protection. Actually environmental issues are related to both legal-political and economical factors. As the most important trade partner for other member states in this region in the 1970s, France undoubtedly took the leading role in economic development; technologically, France was capable of detecting marine pollution sites while other underdeveloped countries was not aware of marine pollution occurrences in their maritime zones;[25]financially, France put a big sum of money into marine environmental protection. The French efforts continued until the UNEP began to take over the role France had played.[26]

To overcome the obstacles brought by different political interests, a general and comprehensive marine environmental protection convention is needed to highlight the ecological importance as a region instead of political boundary separating nation states. To overcome the obstacles brought by different economic development levels, a step-by-step procedure of treaty obligations fulfillment is needed. It is only in such a context that this convention-protocol approach will be effectively put into practice. Actually, the convention-protocol approach is not always applied, as in the case of the Baltic, where there were also states with different economic development levels and political interests.

In the Baltic, there was a hostile confrontation between “Western” and “Eastern” countries in the 1970s. Due to this confrontation and the Cold War, the first attempt to launch the regional cooperation to combat oil spillage failed.[27]This failure showed the coastal states the difficulties of cooperation in environmental protection when they pursued contradictory political interests. States bordering the Baltic finally chose to take marine environment protection as a priority issue, so that the common interests in environmental protection overtook the divergent political interests. With the awareness of marine protection permeating the whole international community, the states bordering the Baltic recognized that they had to find a way to protect the enclosed sea. Under the support from the Organization for Security and Cooperation in Europe[28]and the Economic Commission for Europe Sub-committee to the United Nations Economic and Security Councils, the states bordering the Baltic finally started cooperating in 1974 and concluded the Convention on the Protection of the Marine Environment of the Baltic Sea Area/the Helsinki Convention. The 1974 Helsinki Convention was designed to prevent and control land-based pollution, pollution from ships, and dumping at sea.[29]Oil spills were regulated in the provisions concerning the prevention of pollution from ships. There was no specific agreement for any issue due to divergent political positions. All issues were dealt with by one package, which was the only possible way for member states to cooperate, since only thus would there be bargaining space for all those states.

Agreements between the bordering states of other regional seas indicate that conflicts between political, economical and environmental interests do not necessarily impede cooperation in marine environmental protection, especially since the first United Nations Conference on the Human Environment held in 1972, when the whole international community was persuaded of the importance of environment and the need to protect the marine environment. As a result, the United Nations created its UNEP. Under the auspices of UNEP, Regional Seas Program was launched to protect regional seas and covered most enclosed and semi-enclosed seas. As for emergencies caused by accidental spillage of oil and otherHazardous and Noxious Substance(HNS[HEJP3] ), the states bordering most regional seas have found their ways to combat such marine pollution. Generally speaking, there are three modes of cooperation including the Mediterranean convention-protocol mode, the North East Atlantic piecemeal legislation mode, and the Baltic synthesis mode.

Different modes in marine environment protection are due to the political and economical situations of the regions they were applied to, despite the consensus for regional cooperation to tackle marine environmental problems. Practice and lessons from these regions indicate that the establishment of a particular system[HEJP4] for cooperation in combating pollution is decided by environmental interests, while a specific mode for such cooperation is decided by political and economical interests in that region.

Cooperation on Marine Environmental Protection in the South China Sea

In the South China Sea, cooperation in combating pollution is definitely necessary, just as has been demonstrated in other regions. What the coastal states adjacent to the South China Sea have to consider is how to cooperate.

Political and economical situations in the littoral states vary greatly, which make their cooperation on marine environment protection under the auspice of UNEP rely only on the member states’ goodwill.[30]Political situations in the region are also quite complicated. The establishment of ASEAN was initially meant to countervail the expansion of communism to Southeast Asia. The confrontation between different political systems lasted from the 1970s to the 1990s. Economically, ASEAN includes developed Singapore, a number of developing countries, and underdeveloped Cambodia. Most of the states prefer economic development to environmental protection, that is to say, these states have not taken marine environmental protection seriously or attached due importance to it. Such a situation will only make it worse once a grave oil spill accident occurs.

For cooperation to work, there must be some catalysts to push different states into concluding an agreement on taking necessary actions. In the case of the North Sea and the later North East Atlantic alliances, it was the occurrence of the Torrey Canyon accident. In the case of the Baltic, it was the support of the Organization for Security and Cooperation in Europe and the Economic Commission for Europe Sub-committee to the United Nations Economic and Security Councils and the awareness aroused by the 1972 Stockholm Declaration. In the case of the Mediterranean, it was the efforts from France and the UNEP. As for the South China Sea, the most preferable way is for one of the bordering states to push forward the cooperation with the help of UNEP as the East Asian Sea Region is one of the UNEP-administrated regions. Unfortunately no state would like to play such a role. The principal reason for this is the great discrepancies of political interests. Disputes over the Spratly Islands have not been appropriately resolved, not even appropriately arranged for disputes resolution to begin. Such tensions between states make coastal states very sensitive to commitments which may indicate their attitudes toward the disputed issue. Even in terms of marine environment protection, these states feel reluctant to make any compromise since it might be interpreted as a compromise over sovereignty or national jurisdiction.

In other regional seas, there were and are also disputes over territory or maritime jurisdiction, while the specific historic background in Southeast Asia makes it more difficult for the coastal states to resolve disputes through international judiciary procedures. Actually, these disputes are in relation to conflicts of various interests. Furthermore, Japan and the United States are actively involved in the South China Sea affairs due to the geopolitical value of the Malacca Straits and thus make the political situations even more delicate and complicated.

Such complicated political situations render a great impact on the establishment of a legal regime on marine environmental protection in the region. The most difficult is the conclusion of a legally binding convention. Under the auspices of the UNEP, there is an Action Plan for the whole East Asian Seas Region, of which the South China Sea is a sub-region, while concluding a convention has just been suspended for years.

With the disintegration of the USSR, political confrontation between the two political systems began cooling off in Asia. ASEAN has began to pay more attention to economical development and integration, and tension formerly existing between China and the ASEAN member states has also eased up. The twenty-first century also marked the new cooperation opportunity between China and ASEAN. In 2002, the conclusion of the Framework Agreement on Comprehensive Economic Cooperation between the People’s Republic of China and the Association of Southeast Asian Nations was a landmark which enhanced economic interdependence between China and ASEAN and promoted their economic integration. ASEAN and China is now the 4^th biggest trade[HEJP5] partner for each other.[31]

Based on the above analysis of political and economical situations and real practices in other regions, we may find comparability between the South China Sea and the Mediterranean. In terms of marine environment protection, the Mediterranean in the 1970s was quite like the South China Sea nowadays. Politically, there had been confrontation between European states and African states during the colonial period, which correspondingly made the African states depend on Europe economically. There was also political confrontation in Southeast Asia, due to discrepancies between communist states and capitalist states, which then brought out economic gaps between these states. Geopolitically, the Mediterranean connects Europe, Africa and Asia, which makes it one of the most important sea areas in the world and attracts attention from states outside the region, such as the United States. The South China Sea is part of the East Asian Seas under the UNEP, and thus connects the Pacific with the Indian Ocean, Europe with Asia, making it quite attractive to states such as the United States and Japan. Economically, the Mediterranean sustains tanker lines and pipe lines from south to north, east to west, due to the oil trade in the region. As for Asian states like China, Japan and Korea, over 70 percent of their oil is imported from the Middle East by sea, which has made the South China Sea critical to oil transportation. Environmentally, the Mediterranean underwent environmental degradation in the 1970s due to inappropriate management of activities affecting the marine environment and to the lack of a legal regime, which was just an example of “tragedy of commons.” When it was for everyone, there was no one for it. As for the South China Sea, its resources are claimed by all the surrounding states while marine environment protection just relies on the good will of those states, which may be interpreted as unreliable.

The convention-protocol model from the Mediterranean practice and promoted by the UNEP is the preferable way for the South China Sea, even for the whole East Asian Sea Region, to approach marine environmental protection. When deciding what approach to be taken in the cooperation, we need to further consider whether there exists a state with a leading role in the region. It is not difficult for the region to get help from the UNEP since it has always been responsible for administrating this region. As for a bordering