in fact, numerous principles and instruments devel-oped for the protection of the seas can be found in la-ter regimes of inla-ternational environmental policy.
The regulatory mechanisms of OILPOL turned out to be impractical, however, and the scope of applica-tion of the agreement – banning of certain oil dis-charges into coastal waters – proved to be too re-stricted.
After several revisions of the OILPOL Conven-tion followed a fundamental reformulaConven-tion of the international regulations on shipping-related sea pol-lution in the 1973 International Convention for the Prevention of Pollution from Ships (MARPOL), London, which went into effect in October 1983 and has now been ratified by 85 countries accounting for over 92% of the world’s shipping tonnage.
The MARPOL Convention in itself constitutes only a general framework with basic obligations with regard to protecting the seas against pollution by ships. Specific provisions were agreed upon in five annexes, with accession left to the Parties to a certain extent. Annex I concerning oil pollution and Annex II concerning the transport of harmful liquid sub-stances as bulk goods became legally binding, though with a three-year transition period (Hartje, 1983).
The remaining annexes concerning ship sewage (No.
IV), ship waste (No. V) and concerning the transport of hazardous goods in containers and other forms of packaging (No. III) initially remained optional, but have entered into effect in the meantime, with the ex-ception of the fourth annex.
This approach of a legally binding framework agreement with several substantial core provisions in addition to problem-specific optional annexes held the risk of “partial environmental protection”, but it was the only way of establishing a universally binding regime, which is imperative due to the global nature of maritime transport. The annexes themselves, which (except for Annex IV) now apply as univer-sally binding law in accordance with Art. 211 (2) of the Convention on the Law of the Sea, require the Parties to implement various environmental policies:
in some cases technical standards for design, equip-ment or crews of the ships have to be enacted, in other cases environmentally harmful behavior on the part of the crews must be made punishable by law.
Art. 211 (6) of UNCLOS grants coastal states the right to enact special regulations for particularly threatened marine areas in cooperation with and with the approval of the International Maritime Or-ganization (IMO). To this extent, this article confirms the annexes of the MARPOL Convention in that several semi-enclosed marine areas were classified as
“special regions”. The annexes prescribe stricter reg-ulations for these special areas; in the special areas covered by Annex I, for example, oil discharges are prohibited, except in the case of emergency. Special areas under MARPOL are: the North Sea, the Baltic Sea, the Mediterranean Sea, the Black Sea, the Red Sea with the Gulf of Aden, the Persian-Arabian Gulf, the Southern Ocean as well as the Caribbean Sea.
The following agreements contain special stan-dards for the design, equipment, operation and crews of sea-going vessels:
– Convention on the Protection of Human Life at Sea (SOLAS) of 1974, whose oldest version (1914) dates back to the sinking of the Titanic,
– the Convention on International Rules for Prevent-ing Collisions at Sea (COLREG) of 1972,
– the Convention on Standards for Training, Issuing Qualifications and Watch Duty for Ship’s Crews of 1978,
– the International Convention on Oil Pollution Pre-paredness Response and Cooperation, London, which was agreed on as a reaction to the inade-quate rescue actions taken after the Exxon Valdez disaster in 1990 and went into effect in May 1995.
To keep maritime traffic away from vulnerable ecosystems, states can declare “particularly sensitive regions” within the framework of the IMO since 1991. The amendments to the MARPOL Conven-tion, which went into effect in July 1993, prescribe double hulls or other structural measures having the same safety effect for all newly built tank ships.
Con-137 Marine Pollution from Vessels C 3.3.1
0 5 10 15 20 25 30 35 40 45
(%) Marine mining
Dumping Marine transport Atmosphere Rivers and direct discharges Pollutants from:
Figure 29
Deposition of pollutants in the oceans.
Source: GESAMP, 1990
trary to the customary procedures involved in revis-ing the MARPOL Convention, these provisions are also to be applied to all large tankers (over 20,000 t deadweight) over 25 years old after July 6, 1995. At the same time certain older tankers are to be sub-jected to more stringent inspections.
In summary, a large number of international regu-lations for the protection of the marine environment and maritime safety have entered into effect as bind-ing international law in recent years (Biermann, 1994b). In accordance with Art. 211 (2) of UNCLOS, most of these standards are now considered to be minimum requirements for all states involved in mar-itime transport (for Germany: Edom et al., 1986).
Problems remain, however, with respect to enforce-ment of the regulations and resolution of (potential) conflicts between flag states, port states and coastal states.
3.3.2
Conflicts Between Flag, Port and Coastal States Generally, implementation of environmental and safety standards is the responsibility of flag states. To compensate for the deficient enforcement of these
duties by the flag states, the MARPOL Convention of 1973/78 granted port states certain enforcement rights, in particular the right to carry out certain in-spections on ships. To give the crews an incentive to comply with the standards, the MARPOL annexes require the Parties to set up collection facilities in the ports for disposal of the substances concerned in the special areas. The coastal states, however, remained extensively helpless as far as taking action against passing ships without calling at their ports. They were merely granted certain emergency rights by the 1969 Intervention Agreement, which applies, however, only after an accident occurred at sea.
Whereas this allocation of legislative and execu-tive powers has been reaffirmed by UNCLOS, it has also been adjusted to the new territorial allocation of sovereignty rights in the Convention (United Na-tions, 1992a).
Coastal states have almost exclusive rights up to twelve nautical miles off their coasts, though these rights are restricted to the legal institution of “inno-cent passage” (Fig. 30). Research may take place here only at the invitation of the coastal state. The coastal states can have their own environmental standards for their exclusive economic zone (EEZ) of 200 nau-tical miles, but these standards must not exceed tho-Base line
Innocent passage Territorial waters
200-mile exclusive economic zone 12 nm
Wilful and serious pollution Therefore: non innocent passage
Environmental standards of the coastal state, except standards for design, construction, manning and equipment
Port Coastal state
Environmental standards of the coastal state
0 nm Environmental standards
of the coastal state
Figure 30
The legal regime regarding territorial waters.
The broken lines designate the routes of foreign ships, the solid lines show the extent of the coastal state’s jurisdiction in setting standards. The legal institute of “innocent passage” does apply unless inland waters of the coastal state are entered (left) or “non innocent”
actions are carried out, such as “wilful and serious” oil pollution (right).
Source: Biermann, 1994a.
se of the MARPOL regime (Fig. 31).Traditional free-dom of research is restricted in these economic zo-nes, but is possible with the approval of the respective coastal states (see Section 3.6 regarding marine re-search).
Enforcement of these standards remains the re-sponsibility of the flag states as long as a ship does not discharge any pollutants (Fig. 32). The port states can substantiate that ships entering ports have to meet international standards on the basis of the doc-uments that have to be presented by the crews (in-cluding the oil log). Only when there is evidence of marine pollution or when there are clear indications that the documents “essentially” do not reflect the current state of the ship, may inspections of the ships concerned be carried out by the port authorities and prosecution proceedings be initiated. Prosecution on the part of the port states must be suspended, how-ever, if the flag state takes over proceedings.
This reservation of jurisdiction in favor of the flag states (Art. 228) has been frequently criticized in rel-evant literature on UNCLOS and more recent statis-tics on the common practice of enforcing maritime
law standards seem to justify this criticism. For in-stance, of all violations of MARPOL provisions re-ported on between 1983 and 1991 and handed over to the jurisdiction of flag states, fines or other penalties were imposed in only 13% of the cases. In 65% of all cases the violations apparently had no legal conse-quences and in nearly 20% the shipowners were ac-quitted. By comparison, penalties were imposed in roughly 30% of the cases in which port states and not flag states conducted the investigation (IMO, 1994).
However, the coastal or port states are not required to comply with the reservation clause in favor of flag states if the flag state concerned has repeatedly failed to meet its obligations (Art. 228 of the Convention on the Law of the Sea). This means that coastal and port states have a certain legal room for maneuver as far as prosecuting environmental violations themselves is concerned.
The current discussion regarding shipping-related marine pollution stresses several points. First, some coastal states are urging an extension of the stan-dards prescribed in the MARPOL Convention. The-re aThe-re The-regulatory deficiencies particularly with The-
re-139 Conflicts Between Flag, Port and Coastal States C 3.3.2
Base line
Coastal state High seas
Territorial waters International
standards
Special Area (approval from International
Maritime Organization)
Arctic
Type 1 Type 2
International standards for special areas
Standards of the coastal state, except standards for design, construction, crew
and equipment
Standards of the coastal state Exclusive economic zone
0 nm 12 nm 200 nm Figure 31
Jurisdiction for setting standards according to environmental law in the exclusive economic zone.
Source: Biermann, 1994a
spect to vessel-source air pollution, transport of solid hazardous goods, liability for pollution damage, dan-gers caused by ship fuel that leaks out after collisions, marine pollution caused by marine coating and the spread of foreign animal and plant species through the ballast water from ships with the resulting chan-ges to regional ecosystems. Legal regulations for the-se environmental problems are currently debated within the framework of IMO.
Even more important than these regulatory loop-holes, however, is the inadequate enforcement of en-vironmental policy since numerous flag states do not sufficiently enforce the MARPOL provisions on their ships. A statistical assessment of shipping acci-dents, for example, shows that accidents are one hun-dred times more probable with ships of the “least safe” merchant fleets than with fleets having the highest safety standards (IMO, 1993). More recent surveys indicate that pollution caused by ships on the open sea has almost exclusively been detected by in-dustrialized countries with a relatively effective coast guard in their waters. 25% of all violations during the 80s were detected by Germany alone; only 4% of the
violations were uncovered in waters of the southern hemisphere. It can be presumed, therefore, that envi-ronmentally harmful discharges are much more fre-quent in African, Asian and South American waters than in the regional waters of the North since the risk of criminal prosecution is less in the South (IMO, 1994).
The IMO is attempting to counter this enforce-ment shortcoming through increased inspection of ships by their respective flag states. A “Subcommit-tee for Flag State Implementation” was formed in 1992 for this purpose. Promotional programs for ad-ministrative agencies play a significant role in this connection, a prominent example of which is the World Maritime University (WMU), set up in 1983 for executive staff from the developing countries.
However, the competitive pressure in worldwide maritime trade is intensifying due to the current oversupply of transport capacities, thus giving ship-owners and flag states strong incentives to neglect environmental and safety standards in order to gain market advantages. In recent decades numerous shipping companies have deliberately had their ships Base line
Coastal state High seas
Territorial waters Exclusive economic zone
0 nm 12 nm 200 nm
Right of information Right of inspection Right of detention and prosecution
Port state Simple norm violation
Serious Pollution
Major damages
Figure 32 Jurisdiction for
enforcement according to environmental law in the exclusive economic zone.
If there are no clear reasons for believing that a foreign ship navigating in the EEZ has committed environmental pollution, the enforcement of environmental standards in the EEZ is the sole responsibility of the flag states or port states if the foreign ship has entered their port voluntarily.
Source: Biermann, 1994a
registered in countries which have low environmen-tal and social standards (outflagging) and which, as countries with “flags of convenience”, are respon-sible for the majority of marine mishaps and prob-ably for the majority of operational emissions as well.
Control of environmental and safety standards by the port states represents a fundamental alternative to or extension of the relatively ineffective enforce-ment on the part of the flag states. MARPOL and SOLAS as well as UNCLOS offer a limited legal framework for this. In 1982 the port authorities of the European coastal states introduced a computer-ai-ded monitoring system that is based on spot checks of every fourth ship in the port and essentially re-sulted in inspection (Paris Memorandum of Under-standing) of roughly 90% of all ships calling at Euro-pean ports. These databases are now networked with the Japanese, Russian and North American port au-thorities. Over 130,000 inspections have been con-ducted since 1982, on the basis of which more than 4500 ships (3.5%) were detained because of viola-tions of environmental and safety standards. In 1992 this figure had risen to 5.6%, in particular due to the increasing overaging of the world’s merchant fleet (Plaza, 1994). The Paris Memorandum of Under-standing was further tightened in July 1993 so that ships can be very frequently inspected today if their flag state has conspicuously neglected to enforce international provisions on repeated occasions.
The IMO now strives to introduce this relatively successful European system of collective monitoring of ships by potentially affected port states as a world-wide model. Comparable systems have already been set up for South America and for East Asia/Pacific and are being prepared for the Caribbean.A compre-hensive global system of cooperation between the in-dividual port authorities will probably be in place by the end of this century (Plaza, 1994). Supranational forms of international maritime shipping control are conceivable in the future on the basis of these world-wide databases and they may replace the structurally ineffective flag state control in the long run.
A key problem concerning shipping-related ma-rine pollution is the situation of the poorer countries that are hardly in a position to finance extensive measures.The GEF now provides funds to finance oil disposal facilities in the ports of developing coun-tries. In addition, the 1990 “Oil Pollution Prepared-ness Convention” provides for transfers to develop-ing countries so that the latter can set up special units. However, the financial transfer effected thus far is insufficient to implement the MARPOL stan-dards in the regional seas of the South. A new ap-proach is therefore currently being worked up by the member states of the Association of South East Asi-an Nations (ASEAN), which demAsi-anded the
estab-lishment of an international fund in a ministerial dec-laration in 1992 in order to support financing of the regional monitoring programs for reduction of ship-ping-related oil pollution and piracy. If this fund should not be set up by the international community, the ASEAN states announced introduction of special charges for passing ships to finance these measures (UN, 1992b).
All in all significant success has been achieved in combating shipping-related pollution since 1954.
Tanker accidents have declined both in absolute numbers and in the volume of oil leaking out and cur-rently cause only about 5% of the pollution of the seas through oil (GESAMP, 1993). Although quan-tification of the total global environmental damage due to maritime transport is difficult, there has been a great decrease in oil pollution caused by shipping operations (Fig. 33). In contrast to other types of transport, such as air, road or rail transport, an envi-ronmental assessment of shipping shows a relatively positive development.
In spite of this success, transport-related marine pollution still represents an environmental problem that may have disastrous regional effects. A tanker mishap of little quantitative significance, for instance, may very well cause a local environmental disaster.
In the view of the Council, therefore, there is both a need for research on the development of improved political instruments and a need for action providing for effective enforcement of the agreed regulations.
The substantial funds required of the Parties in or-der to implement the agreed provisions represent a special problem. The MARPOL annexes, for exam-ple, prescribe the construction of port collection fa-cilities for oil contaminated ballast water in order to reduce the incentive discharging illegally at sea. Thus an increase in financial aid for developing countries must be considered, either by scaling up or reallocat-ing the funds of multilateral financreallocat-ing institutions, by expanding bilateral aid or by calling for assumption of responsibility on the part of the private sector (such as the multinational oil corporations operating in the ports). Greater international cooperation in setting up and extending administrative structures in developing countries appears equally necessary (ca-pacity building; see Section B 3.2.2.2).
This cooperation is currently being effected via the IMO, which should have more funds at its dispo-sal for this purpose. This also applies to Germany, which finances 1.89% of the IMO budget (1994) at present – in contrast to the otherwise usual German UN contribution of roughly 9%. The low contribu-tion rate can be explained from the history of the IMO, in which – as a traditional cooperative organ-ization of the flag states – 90% of the contributions are calculated according to the tonnage carried by
141 Conflicts Between Flag, Port and Coastal States C 3.3.2
ships flying the flag of the respective member state.
As a result, smaller developing countries like Liberia, Panama and Cyprus finance the main portion of the IMO budget. In view of the new functions of the IMO regarding the environment, the previous contri-bution formula should be replaced in future by the general UN contribution rate.
Another point of criticism is that the previous structural standards for ships within the framework of the MARPOL and SOLAS Conventions repeat-edly contained exemption clauses for ships that were built before the respective provisions went into ef-fect. These so-called “grandfather clauses” diminish the effectiveness of the safety-relevant design stan-dards considerably. Various measures are conceiv-able here: one might be, as a partial departure from the polluter-pays principle, an agreement that the costs of overhauling or putting overaged ships out of service have to be borne in some cases by the
Another point of criticism is that the previous structural standards for ships within the framework of the MARPOL and SOLAS Conventions repeat-edly contained exemption clauses for ships that were built before the respective provisions went into ef-fect. These so-called “grandfather clauses” diminish the effectiveness of the safety-relevant design stan-dards considerably. Various measures are conceiv-able here: one might be, as a partial departure from the polluter-pays principle, an agreement that the costs of overhauling or putting overaged ships out of service have to be borne in some cases by the