Implementation of IMO Legal Instruments: International Technical and Financial Cooperation
(1)
Faculty of Law, Queensland University of Technology, Brisbane, Queensland, Australia
7.1 Introduction
The previous chapters have examined the international legal instruments aimed at preventing vessel-source marine environmental pollution, and the role of International Maritime Organisation (IMO ) in the development of those legal instruments. This chapter highlights the legal and institutional aspects of the implementation of IMO marine environmental conventions.
International legal instruments are the key structural components in a wider international regulatory regime. Some are mere declarations of general principles, while others contain detailed prescriptions for solving a particular problem.1 For example, the United Nations Framework Convention on Climate Change calls on States to stabilise greenhouse gas emissions (GHG ).2 To achieve this target, the Convention introduced two main principles: the ‘precautionary principle ’ and the ‘common but differentiated responsibilities (CBDR )’ principle.3 On the other hand, the Kyoto Protocol imposes a binding emission reduction target on developed countries.4
The IMO conventions, which are the focus of this book, clearly prescribe steps for solving the problems they deal with. These conventions are not merely statements of principles or policy recommendations, and therefore are not ‘framework conventions.’ Implementation of these conventions requires practical steps. The United Nations Convention on the Law of the Sea (UNCLOS ) may be considered different from the IMO conventions, as it affirms the basic principles for marine environmental protection and calls for appropriate law-making at international and regional levels for the prevention of different sources of marine pollution. The UNCLOS has, by reference, incorporated the IMO conventions within its purview.
The effectiveness of a global environmental regime is largely dependent on proper implementation and enforcement, and a high level of compliance by target actors. Once an international convention is agreed upon, it is transmitted to the signatory states for ratification and implementation. In a sense, where the law-making competences of global forums end, the national implementation of internationally agreed legal framework starts. Broadly speaking, ‘implementation’ occurs where the international treaty rule is effectively made a part of the domestic legal system.5 By definition, it means “the process by which intent gets transferred into action”.6 Similarly, the UNEP inclusively defines ‘implementation’ as “all relevant laws, regulations, policies, and other measures and initiatives, that contracting parties adopt and/or take to meet their obligations under a multilateral environmental agreement and its amendments, if any”.7 Although many stakeholders who participate in the process of implementation are basically non-State actors, this definition excludes their role.8
The implementation of international conventions involves some key terms such as ‘compliance,’ ‘enforcement,’ and ‘effectiveness’.9 As these terms are not used in the same way among all scholars, it is pertinent to briefly elaborate on their meanings.
‘Compliance’ is a wider term than ‘implementation’. It applies both to a State’s meeting its obligations in an international legal instrument, as well as State behaviour conforming to the principles of the legal instrument. These obligations may be substantive, such as setting a discharge standard for ships according to the MARPOL 73/78 Convention, or procedural, such as reporting to IMO under the MARPOL 73/78 Convention. Moreover, some jurists extend the ambit of ‘compliance’ to include meeting the spirit and intent of the international legal instrument; a measure largely dependent on empirical analysis. ‘Enforcement’ is a much narrower term, and involves the imposition of consequences such as sanctions and penalties for non-compliance.10
It has been demonstrated by some scholars that there is a sharp distinction between ‘compliance’ and ‘effectiveness’, since the latter is not necessarily a corollary of the former.11 ‘Effectiveness’ is undoubtedly something more than mere “adherence to legal obligations”.12 In the international environmental law context it can be defined to refer to “whether the condition of the environment is improved”.13 Examining the effectiveness of any international environmental legal instrument involves a systematic empirical exercise from a multidisciplinary approach; a task not possible within the ambit of this book. Nevertheless, from the discussion of previous chapters, we can safely conclude that there is every possibility that international marine environmental conventions such as the MARPOL 73/78 Convention may not be very effective in developing countries. This statement does not necessarily imply, however, that these instruments are very successful in developed countries either.
The next issue deserving some mention is why States (should) comply with international environmental regulation. The UNEP identified that, in addition to the specific benefit of solving a particular environmental problem, an international environmental legal instrument can create a number of general benefits which encourage a State to ratify and comply with international environmental conventions. These include, amongst others: protecting public health; improving governance; international political comity; solidarity; financial assistance; technical assistance; long-term economic benefits; and, in some cases, opportunity for trade.14 Successful implementation of international environmental legal instruments in a developing country largely depends on how far the treaty in question is able to generate these positive factors for a particular country. With respect to developing countries, the question is whether these conventions will be beneficial or counter-productive, for their economic development will certainly be a vital factor for implementation of the IMO Hong Kong Ship Recycling Convention and IMO legal instruments regarding climate change and energy efficiency.
This chapter examines how far international legal and institutional mechanisms for domestic implementation are successful in implementing IMO marine environmental legal instruments in developing countries.
7.2 Effectiveness of IMO Legal Instruments
Although the MARPOL 73/78 Convention is a vibrant international treaty and very often given credit for reduction of pollution of the marine environment from ships, a report published by the US National Academy of Sciences noted, amongst other things, that lack of worldwide enforcement, monitoring and port State control severely limit the effectiveness of the convention. Moreover there are huge difficulties to identify the sources of oil spillage.15
Over-reliance on flag State enforcement can be identified as one of the major causes of the worldwide enforcement deficiency of IMO marine environmental legal instruments.16 As discussed earlier huge numbers of ships are registered in so-called ‘open registries’. Some of these open registry countries are very reluctant to prescribe or enforce stringent regulations on ships entitled to fly their flag. The relationship between this registry and their ships is one of service-provider and client. Some of these countries give registration to ships owned by foreign citizens to earn some money.17 Unsurprisingly, the marine environment is not an issue in their national agenda; some are even land-locked countries having no connection or reliance on the sea.
On the other hand, least developed countries (LDC s), which do not give registration to ships owned by foreign national without a ‘genuine link’, have their own problems to implement the IMO conventions as a flag State. These developing countries lack the resources to enforce the IMO legal instruments on the ships flying their flags. Additionally, the global community is hardly concerned about this issue, as ships of non-open registry developing countries rarely, or never, call to ports of western developed countries. Most of these ships operate regionally. Tables 7.1 and 7.2 show that most of the countries blacklisted by the Tokyo and Paris Memoranda of Understanding (MoU) are developing countries.
Table 7.1
Paris MOU Blacklist 2010–2012
Country | Inspections 2010–2012 | Detentions 2010–2012 |
|---|---|---|
Cambodia | 629 | 59 |
Georgia | 428 | 42 |
Saint Kits and Navis | 344 | 35 |
Lebanon | 82 | 11 |
Libya | 44 | 7 |
Dominica | 139 | 17 |
Comoros | 483 | 55 |
Albania | 159 | 21 |
Moldova | 654 | 88 |
Honduras | 45 | 9 |
Sierra Leone | 412 | 58 |
Togo | 231 | 35 |
Tanzania | 234 | 37 |
Bolivia | 39 | 10 |
Table 7.2
Tokyo MOU Blacklist 2012
Country | Inspections 2010–2012 | Detentions 2010–2012 |
|---|---|---|
Papua New Guinea | 36 | 11 |
Sierra Leone | 708 | 127 |
Cambodia | 5,131 | 814 |
Georgia | 109 | 23 |
Korea, Democratic People’s Republic | 513 | 90 |
Tanzania | 38 | 9 |
Mongolia | 416 | 60 |
Indonesia | 577 | 80 |
Saint Kitts and Nevis | 152 | 24 |
Bangladesh | 94 | 15 |
Tonga | 38 | 7 |
Kiribati | 570 | 63 |
Thailand | 1,017 | 102 |
Viet Nam | 2,163 | 200 |
Belize | 1,117 | 96 |
Developing countries, both as coastal and port States, are also finding it problematic complying with the IMO legal instruments. Non-availability of modern equipment and funds, as well as a distinct lack of political will, are the main factors behind this non-compliance. Most of the developing countries do not provide reception facilities in their ports. The language of the MARPOL provision relating to reception facilities is not considered legally-binding, according to many of the developing countries.18 The Convention requires parties to “undertake to ensure the provision’ of reception facilities”.19 Even in one of its publications, IMO itself made the following statement: “[t]his does not mean that the Government of a Party must provide the facility; it means, in practice, that the Government can require a port authority or terminal operator to provide the facilities”.20
All these inherent drawbacks make the MARPOL system and other IMO marine environmental instruments largely ineffective, particularly in the developing countries. The MARPOL and many other IMO Conventions were adopted and subsequently amended only in the wake of major pollution incidents in the developed world, giving the impression to developing countries that the focus of these conventions is always on the developed world. These conventions undoubtedly are reactive instruments not proactive instruments.
7.3 Legal and Institutional Aspects of Implementation
As discussed earlier, the MARPOL 73/78 and other IMO Conventions have some provisions relating to implementation and compliance. Here, we look at how far the implementation mechanisms in these treaties are successful in ensuring the overall domestic enforcement of international regulation in the developing countries; mainly focusing on the concerns of pollution-prevention activities within the marine areas under the jurisdictions of LDC States. These countries have simultaneous interests as coastal, port and flag States. The group of LDCs is undoubtedly the weakest in the IMO regime. The existing literature on this subject very rarely touches the issues of developing or LDC coastal States.
The MARPOL 73/78 Convention specifically imposes obligations on flag, coastal and port States to: enforce and ensure compliance with the discharge and the CDEM 21 standards by all national and foreign ships; to provide reception facilities; and to submit reports on these activities to IMO. Developing countries generally have a low degree of compliance with these obligations. Tan identifies compliance of treaty obligations as a function of three factors: legal authority, capacity, and incentives.22 For a developing country, the latter two are more critical than the first. As parties to the international treaties and, in some cases, due to State sovereignty, developing countries possess the same legal authority as developed States. Undoubtedly, developing countries lack the same capacity to act and, in fact, sometimes believe that there is no tangible incentive for them to comply with IMO conventions on the prevention of vessel-source pollution. Unlike developed pluralist democracies, conservation of the marine environment is not a major priority for governments of developing countries.
One of the fundamental problems with the IMO conventions is that the majority of them have been initiated only in response to major pollution incidents in the developed world. Consequently, these international developments attract no political attention in the developing world; the coastal developing States, having relatively small numbers of ships, largely disregard developments in international regulation. That does not necessarily mean these countries are not parties to these conventions; many have ratified these conventions without any preparation for implementing the same.
7.3.1 Enforcement of Pollution Control and Equipment Standards
Although the last three decades have seen a considerable advancement in and consequent compliance with equipment standards, compliance in respect of discharge standards has not been as encouraging. For example available statistics show that in 1991, after relevant amendments of the MARPOL 73/78 Convention, 94 % of older tankers had installed SBT or COW and almost 100 % of post-1982 tankers had installed the same. This is undoubtedly a major achievement when compared to the 1981 statistics, in which only 26 % of pre-1976 tankers had SBT or COW and only 45 % of tankers built between 1976 and 1981 had the same.23 The requirement of double-hull standards also shows the same type of encouraging compliance. In contrast, as oil exporting OPEC countries and independent oil tanker owners do not find any incentive for compliance, the LOT and oil discharge requirements do not seem to have had a significant impact on compliance behaviour. Industry compliance, in the views of some scholars, was basically induced by external factors like the oil price and public relations pressure, and not by the treaty rules or their enforcement by the States.24
The port State control mechanism of the MARPOL 73/78 Convention has not been very successful. Since 1990, very few States have provided to IMO annual information regarding port State control. Most developing countries (non-OECD) have not sent a single report to IMO on port State control. Only 20 % of MARPOL parties have ever sent a report to IMO on port State control.25 On the other hand, the records of secretariats of various Memoranda of Understanding (MoUs) on Port State Control seem to be more reliable sources for obtaining a clear picture of enforcement by States and compliance by the industry.26 Port State control authorities are now using a method of targeting ships for inspection, based on the average performance record of the flags they fly, as well as the record of classification societies they employ.27 To ensure compliance, and to assist port State control authorities target for ships for inspections, MOU secretariat employ a ‘three-year rolling-average’ method to make black, grey and white lists.28 As seen in Tables 7.1 and 7.2, most of the blacklisted flag States are from the developing world; indicative of less-than encouraging overall implementation and compliance with MARPOL 73/78 and other IMO Conventions in the developing countries.
7.3.2 Reception Facilities
The provision of reception facilities has been a debatable issue even before the adoption of the MARPOL 73/78 Convention, which obliges State parties to provide such facilities. Developing countries did not treat this obligation as legally binding. States parties have repeatedly ignored their obligation to provide reception facilities in the ports within their jurisdiction.
One of the major causes of this reluctance is that, in the MARPOL 73/78 and other IMO Conventions, there are no provisions for sanctions for a failure to provide reception facilities. Yet, the provision of reception facilities is vital for the successful implementation of the MARPOL 73/78 Convention. The underlying philosophy of making provisions for reception facilities is that, if discharge of oily wastes and other substances is prohibited in the sea, there must be facilities in the shore for receiving wastes retained in the ships.29 The high cost of reception facilities is one of the causes of developing countries’ reluctance in this regard.
A report of the United Nations Conference on Environment and Development estimated that the cost of establishing a reception facility in developing countries was $560 million for the period 1993–2000.30 This amount has probably increased since. The oil exporting developing countries (OPEC members31) are not providing reception facilities due to a lack of political will, not lack of funds. Environmental conservation has never been an important issue in their domestic political agenda; hence they lack any incentive. Conversely, it is because of technical and financial inability that the Non-OPEC developing port States are not able to provide reception facilities. Efforts at the international level to overcome this problem have been negligible, at best.32 According to Mitchell:
[w]hether non-compliance come from an absence of capacity or of incentives, financial mechanism could have overcome the problem, but IMO has never established a program to finance facility costs for developing countries. …………. the governments of developed countries have been reluctant to fund facilities in their own ports, let alone elsewhere.33
IMO unsuccessfully tried to establish a Fund for Reception Facilities (FRF ), targeted at being financed by the actors who are benefiting from the economic activities which are creating the risk of pollution. All the efforts under the IMO regime to suitably finance reception facilities in developing countries have reportedly failed.34 In 2006, MEPC accepted an Action Plan to deal with the insufficiency of port reception facilities all over world35 and “urged all Parties to the MARPOL Convention, particularly those Parties as port States, to fulfil their treaty obligations on providing reception facilities for wastes generated during the normal operation of ships.”36 IMO also established a Port Reception Facility Database.37 These initiatives, however, failed to adopt any special measures for financing reception facilities in the developing countries.
7.3.3 Reporting
Article 11 of the MARPOL 73/78 Convention obliges State parties to communicate reports on various aspects, including (amongst others): national legislation; list of reception facilities; and enforcement action. This mandatory reporting system has not, however, proved very successful. Statistics on the basis of reports submitted between 1985 and 2003 show that 50 % of the State parties never submitted any report to IMO on the availability of reception facilities. The majority of States have not complied with their obligation to report on reception facilities, be it in respect to their own ports or the ports of other countries.38
The report on enforcement action also presents a similar discouraging picture. Statistics on the basis of State parties’ reports from 1991 to 2002 show that only 20 % of developing countries have ever submitted a report to IMO. Although developed countries’ reports show a higher figure, this rarely rises above 50 %. On the other hand, the same statistics show that more than 60 % of the MARPOL parties never submitted a single report.39
7.4 Major Challenges in Implementation
The above discussion depicts a bleak picture of non-compliance with international marine environmental conventions in developing countries. Developing countries are handicapped in a vicious circle of a lack of political will, and technical and financial inability. The major bottlenecks of implementation of international marine environmental conventions in developing countries can be summarised as follows.40
7.4.1 Implementation of IMO Conventions in Domestic Legal System
One of the main challenges for developing countries is the implementation of IMO conventions in their domestic legal frameworks. Many States consider it contrary to their sovereignty to apply an intentional convention directly in the domestic sphere. Most countries need enabling legislation to give effect to the IMO conventions in the domestic arena. IMO conventions are highly technical, and some developing countries lack the legal expertise to properly draft enabling domestic legalisation to give effect to these conventions. However, a lack of legal expertise may not be a hurdle for all developing countries because many developing countries’ lawyers have been trained by the IMO. The main problem is the non-utilisation of these experts by their respective governments.
7.4.2 Lack of Political Will
There is a widespread lack of political will in developing countries concerning the state of the marine environment and the socio-economic impact of marine environmental pollution. While some developing countries’ recent achievements in economic development are remarkable, their environmental initiative is rather mixed. Often these nations respond to the global environmental protection movement with several reservations, implied or expressed. This is reflective of the fact that the international marine environmental conventions, in many respects, fail to account for the needs of developing countries. As observed by Fakury, developing countries may “view international marine environmental law as offering too inadequate an answer to their needs. For, instance, the United Nations Convention on the Law of the Sea requires enforcement of shipping standards by the flag State; in other words, the burden is placed on the nominal player, not the real economic stakeholder (the State of beneficial ownership of the ship)”.41