International Convention for the Prevention of Pollution from Ships (MARPOL) and Protocol of 1978
The International Convention for the Prevention of Pollution from Ships, adopted in 1973, was followed by a Protocol, adopted in 1978. Since at the time of its adoption the 1973 Convention had not yet entered into force, it was given effect by the Protocol, subject to a postponement of the entry into force of Annex II to the Convention and the amendment of art. 11(1)(b).1
Art. I of the Protocol so provides:
Article I — General obligations
(1) The Parties to the present Protocol undertake to give effect to the provisions of:
(b) the present Protocol and the Annex hereto which shall constitute an integral part of the present Protocol; and
(b) the International Convention for the Prevention of Pollution from Ships, 1973 (hereinafter referred to as ‘the Convention’), subject to the modifications and additions set out in the present Protocol.
(2) The provisions of the Convention and the present Protocol shall be read and interpreted together as one single instrument.
(3) Every reference to the present Protocol constitutes at the same time a reference to the Annex hereto.
The Protocol, and with it the Convention, globally referred to as ‘MARPOL’, entered into force on 2 October 1983. As with most of the preventive conventions considered in this Part of Volume III, MARPOL sets out rules on the prevention of pollution by oil and harmful and noxious substances as well as on the discharge from ships of harmful substances. The operational and technical rules are set out in its six Annexes, being:
- Annex I with Regulations for the Prevention of Pollution by Oil;
- Annex II with Regulations for the Control of pollution by Noxious Liquid Substances in Bulk;
- Annex III with Regulations for Prevention of Pollution by Harmful Substances carried by Sea in Packaged Form;
- Annex IV with Regulations for the Prevention of Pollution by Sewage from Ships;
- Annex V with Regulations for the Prevention of Pollution by Garbage from Ships;
- Annex VI with Regulations for the Prevention of Air Pollution from Ships.
The most relevant of these is Annex I in which the following matters are the object of specific regulations:
- international oil pollution prevention certificates (regulations 7, 9 and 11);2
- tanks for oil residues (regulation 12);3
- oil fuel tanks protection (regulation 12A);4
- oil filtering equipment (regulation 14);5
- control of discharge of oil (regulation 15);6
- segregation of oil and water ballast and carriage of oil in forepeak tanks (regulation 16);7
- requirements for the cargo area of oil tankers (regulation 18);8
- prevention of oil pollution from oil tankers carrying heavy grade oil as cargo (regulation 13);9
- subdivision and damage stability (regulation 28);10
- oil discharge monitoring and control system (regulation 31);11
- crude oil washing operations (regulation 35);12
- oil pollution emergency plan (regulation 37);13
- reception facilities (regulation 38);14
- prevention of pollution during transfer of oil cargo between oil tankers at sea (regulation 40).15
Art. 3 of MARPOL so provides:
Article 3 — Application
(1) The present Convention shall apply to:
(b) ships not entitled to fly the flag of a Party but which operate under the authority of a Party.
(2) Nothing in the present article shall be construed as derogating from or extending the sovereign rights of the Parties under international law over the sea-bed and subsoil thereof adjacent to their coasts for the purposes of exploration and exploitation of their natural resources.
(3) The present Convention shall not apply to any warship, naval auxiliary or other ship owned or operated by a State and used, for the time being, only on government noncommercial service. However, each Party shall ensure by the adoption of appropriate measures not impairing the operations or operational capabilities of such ships owned or operated by it, that such ships act in a manner consistent, so far as is reasonable and practicable, with the present Convention.
The ships to which the Convention applies are identified, as in some other conventions of this group, on the basis of their nationality by means of a reference to their entitlement to fly the flag of a State Party to the Convention. The subsequent reference to ‘ships not entitled to fly the flag of a Party but which operate under the authority of a Party’ is due to the following very wide definition of ship in art. 2(4):
(4) Ship means a vessel of any type whatsoever operating in the marine environment and includes hydrofoil boats, air-cushion vehicles, submersibles, floating craft and fixed or floating platforms.
Therefore, a craft or platform that is not entitled to fly the flag of the State under the authority of which it operates is covered by the above provision.
The exclusion from the application of the Convention of warships and the other ships mentioned in paragraph 3 is not, as in various private law conventions, absolute, for the State to which they belong is required, pursuant to paragraph 3, to ensure that such ships act in a manner consistent with the Convention, such rule being, however, subject to a double condition. First, the ‘appropriate measures’ adopted by the State should not impair the operations or operational capabilities of such ships. It must be assumed that, although the burden of proof is on the State, the statement that that would be the case suffices to justify the failure to comply with this rule, as certainly would be the case for warships. Secondly, that action in a manner consistent with the Convention is ‘reasonable and practicable’. The burden of proof is also in this case on the State, but again, at least in so far as warships are concerned, in all likelihood a mere declaration of the State should suffice.
Art. 1(1) of the Convention so provides:
The Parties to the Convention undertake to give effect to the provisions of the present Convention and those Annexes thereto by which they are bound, in order to prevent the pollution of the marine environment by the discharge of harmful substances or effluents containing such substances in contravention of the Convention.
The pollution of the marine environment, that MARPOL aims to prevent is the discharge of harmful substances and since this is also the purpose — or one of the purposes — of other conventions, such as that on the Control and Management of Ships’ Ballast Water and Sediments 2004, that on Removal of Wrecks 2007 and that on Dumping of Wastes 1972, it is important to establish whether there may be a conflict between the Convention now under consideration and one or more of the above-mentioned conventions — and, if so, what may be the consequences of such a conflict.
There are two definitions in MARPOL that are helpful in this respect — those relating to ‘discharge’ and ‘harmful substances’. These are set out in art. 2(2) and 2(3) in the following terms:
(2) Harmful substance means any substance which, if introduced into the sea, is 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 includes any substance subject to control by the present Convention.
(a) Discharge, in relation to harmful substances or effluents containing such substances, means any release howsoever caused from a ship and includes any escape, disposal, spilling, leaking, pumping, emitting or emptying;
(b) Discharge does not include:
(i) dumping within the meaning of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, done at London on 13 November 1972; or
(ii) release of harmful substances directly arising from the exploration, exploitation and associated offshore processing of sea-bed mineral resources; or
(iii) release of harmful substances for purposes of legitimate scientific research into pollution abatement or control.
A conflict with the Convention on Dumping of Wastes, otherwise almost certain, is expressly excluded by the above provision under paragraph 3(b)(i) by which priority is given to such Convention.
A conflict with the Convention on Control and Management of Ships’ Ballast Water and Sediments 2004 does not seem to be conceivable, given the definition of ‘sediments’ as ‘matters settled out of Ballast Water’.
Nor is a conflict conceivable with the Convention on Removal of Wrecks, since MARPOL applies to ships as defined in its art. 2(4).