Faculty of Law, Queensland University of Technology, Brisbane, Queensland, Australia
The International Maritime Organisation (IMO ), as the specialised agency of the United Nations, has been entrusted with the duty to provide machinery for co-operation among governments for the prevention and control of pollution of the marine environment from vessels.1 The organisation was initially established as the Intergovernmental Maritime Consultative Organisation (IMCO ). It was known as IMCO until 1982, when it was changed to IMO. The organisation is responsible for drafting legal instruments, as well as for facilitating technical co-operation for the protection of the marine environment.2 This book aims to examine the role of IMO in preventing and controlling pollution of the marine environment from vessels, with particular reference to the north–south tensions regarding the strategy for prevention of marine pollution.
Control of marine pollution is a technically difficult and diverse area. This led to the development of a large set of international conventions under the auspices of IMO. Although IMO legal instruments are mainly targeted at the prevention of pollution of the marine environment from vessels, there is a trend towards a liberal interpretation of the term ‘pollution of the marine environment from vessels.’ For example, dumping of wastes and other matter is not a ship-generated pollution in a strict sense, though a ship can be used for dumping land-based wastes in the sea. The organisation even expanded its work to areas like the ship-breaking industry, which is essentially a land-based industry. However, all the IMO legal instruments have some relation with ships in one way or other.
Gradual expansion of IMO’s work towards different aspects of environmental pollution created some serious debate regarding the organisation’s mandate and competence. For example, the Marine Environment Protection Committee (MEPC) of IMO recently adopted mandatory energy efficiency measures for international shipping, which are regarded as the first ever mandatory global Green House Gas (GHG ) emissions reduction legal instrument for an international industry.3 In the negotiation of this legal instrument, the conflict between the principle of Common But Differentiated Responsibilities (CBDR ) and the IMO’s policy of equal treatment was the central issue of debate between some leading developing and developed countries.4 Through a submission, some developing countries stated that the CBDR principle is the cornerstone of international climate change law.5 These countries are of the opinion that introducing the same responsibilities to ships flying the flag of all countries, irrespective of their economic status, is a clear deviation from the United Nations Framework Convention on Climate Change and its Kyoto Protocol; breaching the principle of CBDR.6 The new instrument has been adopted in the wake of a threat of unilateral action by the European Union (EU ), because a European Commission representative had earlier hinted that the EU would take unilateral action if no agreement on emissions reduction can be reached in the IMO negotiation process.7 Consequently, this instrument has not been reached by consensus in the MEPC .8 This indicates a future challenge. Although the instrument is mandatory and global, some countries may not join to the instrument. Moreover, IMO’s competence over the political and legal aspects of reduction of GHG emissions from ships has been questioned by some developing countries. This is a new challenge for IMO, as most of the IMO environmental legal instruments are adopted by consensus. This polarisation between developed and developing countries may have a far reaching impact on the implementation of IMO legal instruments.
IMO is mainly dominated by developed countries with large shipping interests. For ensuring greater participation many institutional and procedural changes and reforms are needed.9 More emphasis should be given for treaty implementation than treaty-making by allocating more resources towards implementing existing treaties. To ensure global implementation of international marine environmental legal instruments, the concerns of the global south need to be given proper attention in negotiating and implementing international legal instruments for the prevention and control of vessel-source marine pollution.
Against this backdrop, this book aims to explore the role of IMO in facilitating the adoption and implementation of international legal instruments for the protection of the marine environment. A number of studies have examined different aspects of the international legal regime concerning vessel-source marine pollution.10 There is no comprehensive research monograph particularly emphasising or critically examining the role of IMO in the protection of the marine environment, nor in the emerging challenges involved in fulfilling this role. This book aims to contribute to this aspect of international legal scholarship, with particular emphasis on the north–south tensions currently faced by IMO. This book also intends to present an overview of the IMO legal instruments and their implementation process.
1.2 IMO and Marine Pollution from Ships
The United Nations Convention on the Law of the Sea (UNCLOS ) defines pollution of the marine environment ‘as 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’.11 This definition took a precautionary approach when compared to the definition proposed by the Joint Group of Experts on the Scientific Aspects of Marine Pollution (GESAM P). GESAMP is an advisory body on marine pollution consisting of scientific experts nominated by different intergovernmental organisations including IMO, FAO, UNESCO, WMO, WHO, IAEA, UN and UNEP. According to GESAMP: ‘pollution means the introduction by man, directly or indirectly, of substances or energy into the marine environment (including estuaries) resulting in such deleterious effects as harm to living resources, hazards to human health, hindrance to marine activities including fishing, impairment of quality for use of sea water and reduction of amenities’.12 The definition adopted by UNCLOS is strikingly similar to definition proposed by the GESAM P13 but the UNCLOS definition took a precautionary approach by including the phrase ‘likely to result’. This precautionary approach has a far reaching impact in shaping both international legal and institutional framework for the prevention of pollution of the marine environment.
Pollution of the marine environment may occur from different sources: land-based activities, vessels, ocean dumping, atmospheric and offshore hydrocarbon exploration, and other mining activities. However, IMO’s mandate is mainly confined to the pollution from ships or vessel-source marine pollution.14 The focus here will be on vessel-source pollution. The types of vessels-source pollution are numerous. At present, IMO deals with a number of marine pollution related issues, including oil, chemical, garbage, sewage and air pollution; greenhouse gas emissions form vessels, dumping of wastes and other matter; ballast water management; anti-fouling systems and ship recycling. These diverse issues prompted the adoption of a huge number of international legal instruments under the auspices of IMO.
1.3 Historical Development of IMO Legal Instruments and Institutional Structure for the Prevention of Pollution of the Marine Environment from Vessels
As mentioned earlier, an international convention for the establishment of IMCO was adopted in 1948.15 The IMCO Convention entered into force in 1958 and the Assembly of the new organisation met for the first time in 1959. However, nowhere in the IMCO Convention was the prevention of vessel-source marine pollution explicitly mentioned as a purpose of the organisation. Rather, the initial focus of the organisation was maritime safety and efficiency in navigation. Moreover, competence of the organisation was very limited; the original article 2 of the IMCO Convention provided that the functions of the organisation were consultative and advisory.
In 1954, the International Convention for the Prevention of Pollution of the Sea by Oil (OILPOL )16 was adopted in a conference organised by the United Kingdom. Despite IMCO’s limited competence in respect of marine environmental protection, the OILPOL Convention specifically mentioned several functions to be undertaken by IMCO when it came into being. The OILPOL Convention was followed by some environmental protection provisions in the 1958 Law of the Sea conventions: the Convention on Fishing and Conservation of the Living Resources of the High Seas; and the Convention on the Continental Shelf and the Convention on High Seas.17 In fact, the concept of rules of reference discussed in the next chapter in the context of UNCLOS has its origin in the 1958 Convention on High Seas. According to article 25 of that convention: “Every State shall take measures to prevent pollution of the seas from the dumping of radio-active waste, taking into account any standards and regulations which may be formulated by the competent international organisations.” Moreover, referring to 1958 OILPOL Convention, article 24 of the 1958 Convention on High Seas urged the parties to the convention to draw up regulations to prevent pollution of the seas by the discharge of oil from ships, taking account of existing treaty provisions on the subject.
The IMCO Convention came into effect in 1958, just a few months before the OILPOL Convention entered into force. It provided the organisation the opportunity to assume the management of the OILPOL Convention from the beginning. This IMCO did soon after its establishment. The OILPOL Convention was amended in 1962 and 1969. This development in the international legal framework was complemented by institutional reform within IMO. In 1965, to address the growing concerns regarding oil pollution, IMO initiated the Subcommittee on Oil Pollution under the auspices of its Maritime Safety committee. In 1969, the IMO Assembly renamed the Subcommittee on Oil Pollution as the Subcommittee on Marine Pollution.
In 1967, the tanker Torrey Canyon ran aground near the English Channel and spilled 120,000 tons of crude oil in the sea.18 This was the most horrific oil pollution incident up to that time. The incident reveals the inadequacies of existing mechanisms to prevent oil pollution from ships, while also uncovering the inadequacy of the existing mechanism to provide compensation for oil pollution casualties.19 Following this incident, IMO adopted a plan of action on technical and legal aspects of the Torrey Canyon incident.20 Subsequently, the IMO Assembly decided to convene an international conference in 1973 to adopt an effective international convention for prevention of pollution from ships.21 In the meantime, the OILPOL Convention was amended again in 1971.22
Between the late 1960s and early 1970s, this process was followed by the negotiation of several supplementary conventions relating to interventions in high seas in cases of oil pollution casualties, and to civil liability and compensation for oil pollution damage. The most noteworthy of these are the 1969 International Convention on Civil Liability for Oil Pollution Damage (CLC ),23 the 1969 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (INTERVENTION ),24 and the 1971 International Convention on the Establishment of an International Fund for Compensation of Oil Pollution Damage (FUND ).25 The need to protect the oceans from dumping of pollutants prompted the global community to adopt the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter.26
The International Convention for the Prevention of Pollution from Ships (MARPOL ) was adopted under the sponsorship of IMO in 1973.27 However, this Convention failed to come into effect, as it was not ratified by the necessary number of States. Increasing incidents of pollution, involving oil tankers, were the catalyst for an IMO conference on Tanker Safety and Pollution in 1978. Amongst others, this Conference adopted a protocol to the MARPOL Convention, which was still not in force at the time. The MARPOL 73/78 Convention is, therefore, a combination of the 1973 Convention and the 1978 Protocol. Under article 9 of the MARPOL Convention, it was stipulated that the MARPOL Convention superseded the OILPO L Convention.28
To date, the MARPOL 73/78 Convention is the most significant global legal instrument for the prevention of vessel-source marine pollution. It covers all technical issues, and introduced a system for the design, construction and necessary equipment for pollution prevention. These substantive obligations will be implemented through a system of certifications, inspections and surveys. Moreover, this Convention calls on the coastal States, in somewhat non-mandatory language, to provide reception facilities for the disposal of oily wastes, sewage, garbage and other hazardous substances.
The MARPOL 73/78 Convention primarily granted prescriptive and enforcement jurisdiction to the flag States. However, any violation of the requirements of the MARPOL Convention within the jurisdiction of a coastal State can be prohibited and sanctions can be established under the law of that State.29 The meaning of the term “within the jurisdiction” has to be determined in light of the international law in force at the time the Convention is applied or interpreted.30 This provision was incorporated into the Convention because, while negotiating the Convention, States failed to reach an agreement about the coastal States’ jurisdiction. They kept the room open until the adoption of the UNCLOS .
The MARPOL Convention introduced a system of certification. Most of the ships operating international maritime transportation have to carry some certificates on board as prima face evidence of compliance with the Convention. Any country can inspect a ship to verify these certificates while the ship is voluntarily in that country’s port or offshore terminal. If “there are clear grounds for believing that the condition of the ship or its equipment does not correspond substantially with the particulars of the certificate” the port State can detain the ship.31
Regulations covering the various sources of ship-generated pollution are contained in the six Annexes of the MARPOL and are updated regularly. Annexes I and II, governing oil and chemicals, are compulsory but annexes III–VI on packaged materials, sewage, garbage and air pollution are optional.32 The Annexes of the MARPOL 73/78 can be amended through the “tacit acceptance” process.33
Adoption of the MARPOL Convention preceded further institutional reform of IMO. The eighth IMO Assembly meeting, held in 1973, established the Marine Environment Protection Committee (MEPC ) as a permanent subsidiary organ of the Assembly. In 1975, IMO underwent further institutional reform. The name of the organisation was changed to International Maritime Organisation from Intergovernmental Maritime Consultative Organisation. Considering the growing concerns regarding vessel-source pollution, prevention and control of marine pollution from ships has been included as one of the purposes of the organisation. The most important reform of the 1975 amendment was the establishment of the Legal Committee (LEG ) and MEPC as permanent organs of the organisation. The 1975 amendment was followed by a 1977 amendment which greatly expanded the mandate of the organisation. This amendment deleted original article 1(d) which, until deletion, restricted the functions of the organisation as being consultative and advisory. Moreover, original article 1(d) was amended to create room for the organisation to consider any matters concerning the effect of shipping on the marine environment referred to it by any organ or specialised agency of the United Nations. This amendment enhanced the status of the organisation as a specialised organisation of the United Nations system, entrusted with the responsibility of promoting global action for the prevention of vessel-source marine pollution.
These major legal and institutional reforms were then followed by several other IMO-initiated legal instruments and amendments of existing instruments. These dealt with the issues of pollution prevention and response34; ballast water management35; anti-fouling systems36; particularly sensitive sea areas (PSSA )37; the ship recycling industry38; and reduction of GHG emissions.39