Prevention of pollution of the marine environment from vessels the potential and limits of the international maritime organisation

Md Saiful Karim

Prevention of
Pollution of
the Marine
Environment from
Vessels
The Potential and Limits of the
International Maritime Organisation

Tai Lieu Chat Luong


Prevention of Pollution of the Marine Environment
from Vessels


ThiS is a FM Blank Page


Md Saiful Karim

Prevention of Pollution of the
Marine Environment from
Vessels
The Potential and Limits of the International
Maritime Organisation


Md Saiful Karim
Faculty of Law

Queensland University of Technology
Brisbane
Queensland
Australia

ISBN 978-3-319-10607-6
ISBN 978-3-319-10608-3 (eBook)
DOI 10.1007/978-3-319-10608-3
Springer Cham Heidelberg New York Dordrecht London
Library of Congress Control Number: 2014955367
© Springer International Publishing Switzerland 2015
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Preface and Acknowledgements

This book explores the role of the International Maritime Organisation (IMO) as
facilitator of the adoption and implementation of international legal instruments for
the protection of the marine environment. While several studies have examined
different aspects of the international legal regime concerning vessel-source marine
pollution, none have presented a research monograph particularly emphasising or
critically examining the role of IMO in the protection of the marine environment
and the emerging challenges in fulfilling this role. This book aims to fill that gap. It
contributes to this aspect of international legal scholarship, with particular emphasis on the north–south tensions IMO is currently facing. This book also presents an
overview of the IMO legal instruments and their implementation process. It will
work as a guide for the implementation of IMO marine environmental legal
instruments.
This book is likely to interest environmental lawyers, international lawyers and
those involved with environmental governance. This includes academics, governments, international organisations and non-governmental organisations. Apart from
the research and academic community, this book may be useful for government
officials who are involved with national implementation of IMO marine environmental legal instruments, particularly officials of coast guards and maritime administrations. Although it is a research monograph, this book may be used as a
prescribed text for training programs for government officials, and as a
recommended text for postgraduate courses on marine environmental law. While
writing this book, particular emphasis has been given to fulfilling the demands of
the target readership.
The idea of writing this book first came to my mind in 2006 when I was a
research student at the National University of Singapore. There are two reasons for
writing this book. The main reason is that the perspectives of least developed
countries have not been well documented in the existing literature on vessel-source
marine pollution. Moreover, there is a shortage of books that concisely and critically present the IMO law-making process and IMO marine environmental legal
instruments for a new researcher in this field. As a new researcher in this field I felt

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vi

Preface and Acknowledgements

both of these concerns when I was pursuing my research degree at the National
University of Singapore.
This book incorporates some materials from my three previously published
articles including ‘Implementation of the MARPOL Convention in Developing
Countries’ (2010) 79 Nordic Journal of International Law 303, Brill Academic
Publishers; ‘Environmental Pollution from Shipbreaking Industry: International
Law and National Legal Response’ (2010) 22 Georgetown International Environmental Law Review 185; and ‘Implementation of the MARPOL Convention in
Bangladesh’ (2009) 5 Macquarie Journal of International and Comparative Environmental Law 51. I would like to thank the editors and publishers of those journals.
I would like to thank all the institutions with which I was involved in the last
10 years in different capacities including Bangladesh Environmental Lawyers
Association, National University of Singapore (NUS), Macquarie University and
Southern Cross University (SCU). I am also grateful to my current employer,
Queensland University of Technology (QUT), for providing excellent research
support.
My heartfelt gratitude goes to my former research supervisors Professor
Natalie Klein and Professor Alan Tan. I would also like to thank my colleagues
at the Queensland University of Technology for their unwavering support.
I would particularly like to thank my research assistants Alexander ButtonSloan and Paul T. Perovic.
Finally, my gratitude and love to my family.
Brisbane, QLD, Australia
September 2014

Md Saiful Karim

Abbreviations

Abuja MoU
ADB
AFS
APEC
BAN
BIC
BIMCO
BS MoU
BWM
CBD
CBDR
CCC
CDEM
CESA
CIRM
CLC
CLIA
CMI
CMoU
COLREGs
CoP
COW
CRISTAL

West and Central Africa Memorandum of Understanding on
Port State Control

Asian Development Bank
Anti-Fouling System
Asia-Pacific Economic Cooperation
Basel Action Network
Bureau International des Containers et du Transport
Intermodal
Baltic and International Maritime Council
Memorandum of Understanding on Port State Control in the
Black Sea Region
Ballast Water Management
1992 Convention on Biological Diversity
Common But Differentiated Responsibilities
Subcommittee on Carriage of Cargoes and Containers
Construction, Design, Equipment and Manning
Community of European Shipyards’ Associations
Comite´ International Radio-Maritime
International Convention on Civil Liability for Oil Pollution
Damage
Cruise Lines International Association
Comite´ Maritime International
Caribbean Memorandum of Understanding on Port State
Control
Convention on the International Regulations for Preventing
Collisions at Sea
Conference of Parties
Crude Oil Washing
Contract Regarding an Interim Settlement of Tanker Liability
for Oil Pollution
vii

viii

CSC
DGAC
DNV
dwt
EC WSR
EEZ
EU
FAL Convention
FAL
FAO
FOC
FOEI
FONASBA
FPSOs
FRF
FSI
FSUs
FUND
GAIRS
GEF
GESAMP
GHGs
GIWA
grt
GT
HNS
HTW

IAASP
IACS
IADC
IAEA
IAIN
IALA
IAMU
IAPH
IAPPC
IBIA
IBTA

Abbreviations

Clean Shipping Coalition
Dangerous Goods Advisory Council
Det Norske Veritas
Deadweight tons
European Council Waste Shipment Regulation
Exclusive Economic Zone
European Union
Convention on Facilitation of International Maritime Traffic
Facilitation Committee
Food and Agriculture Organisation
Flag of Convenience
Friends of the Earth International
The Federation of National Associations of Ship Brokers and
Agents
Floating Production Storage and Offloading Units
Fund for Reception Facilities

Flag State Implementation
Floating Storage Units
International Convention on the Establishment of an
International Fund for Compensation for Oil Pollution
Generally Accepted International Rules and Standards
Global Environment Facility
Joint Group of Experts on Scientific Aspects of Marine
Environmental Protection
Green House Gases
Global International Waters Assessment
Gross registered ton
Gross Tonnage
Hazardous and Noxious Substances
Subcommittee on Human Element, Training and
Watchkeeping
International Association of Airport and Seaport Police
International Association of Classification Societies
International Association of Drilling Contractors
International Atomic Energy Agency
International Association of Institutes of Navigation
International Association of Marine Aids to Navigation and
Lighthouse Authorities
International Association of Maritime Universities
International Association of Ports and Harbors
International Air Pollution Prevention Certificate
International Bunker Industry Association
International Bulk Terminals Association


Abbreviations

ICC
ICMA
ICOMIA
ICS
IFAW
IFSMA
IGOs
IHMA
IICL
IIDM
III
IIMA
ILAMA
ILO
IMarEST
IMCA
IMCO
IMHA
IMLA
IMO
IMPA
IMRF
INTERCARGO
InterManager
INTERTANKO
IOI
IOMoU
IOPCF
IOPCSF

IOPPC
IPIECA
IPPIC
IPTA
IRU
ISAF
ISCO
ISF
ISO
ISRT Fund
ISSA

ix

International Chamber of Commerce
International Christian Maritime Association
International Council of Marine Industry Associations
International Chamber of Shipping
International Fund for Animal Welfare
International Federation of Shipmasters’ Associations
Intergovernmental Organisations
International Harbour Masters’ Association
Institute of International Container Lessors
Iberoamerican Institute of Maritime Law
Subcommittee on Implementation of IMO Instruments
International Iron Metallics Association
International Life-saving Appliance Manufacturers’
Association
International Labour Organisation
The Institute of Marine Engineering, Science and Technology

International Marine Contractors Association
Intergovernmental Maritime Consultative Organisation
International Maritime Health Association
International Maritime Lecturers Association
International Maritime Organisation
International Maritime Pilots’ Association
International Maritime Rescue Federation
International Association of Dry Cargo Shipowners
International Ship Managers’ Association
International Association of Independent Taker Owners
International Ocean Institute
Indian Ocean Memorandum of Understanding on Port State
Control
International Oil Pollution Compensation Fund
International Oil Pollution Compensation Supplementary
Fund
International Oil Pollution Prevention Certificate
International Petroleum Industry Environmental Conservation
Association
International Paint and Printing Ink Council
International Parcel Tankers Association
International Road Transport Union
International Sailing Federation
International Spill Control Organisation
International Shipping Federation
International Organization for Standardization
International Ship Recycling Trust Fund
International Shipsuppliers & Services Association

x

ISU
ITF
ITOPF
ITTC
IUCN
IUMI
IVODGA
LDC
LEG
LMEs
LOT
MARPOL 73/78
Med MoU
MEPC
MOU
MSC
NCSR
NGOs
NI
NLS
NOC
NOx
OCIMF
OECD
OGP
OILPOL
OPA-90
OPEC

OPRC
ORB
PAHs
Paris MoU
P & I Clubs
PCB
PCT
PFCs
PIC

Abbreviations

International Salvage Union
International Transport Workers’ Federation
The International Tanker Owners Pollution Federation
Limited
International Towing Tank Conference
International Union for Conservation of Nature
International Union of Marine Insurance
International Vessel Operators Dangerous Goods Association
Least Developed Country
Legal Committee
Large Marine Ecosystems
Load on Top
International Convention for the Prevention of Marine
Pollution from Ships
Mediterranean Memorandum of Understanding on Port State
Control
Marine Environment Protection Committee
Memorandum of Understanding

Maritime Safety Committee
Subcommittee on Navigation, Communications and Search
and Rescue
Non-Government Organisations
The Nautical Institute
Noxious and Liquid Substances
No Objection Certificate
Nitrogen Oxides
Oil Companies International Marine Forum
Organisation for Economic Cooperation and Development
International Association of Oil and Gas Producers
International Convention for the Prevention of Pollution of the
Seas by Oil
Oil Pollution Act 1990 (USA)
Organisation of Petroleum Exporting Countries
1990 Convention on Oil Pollution Preparedness, Response
and Cooperation
Oil Record Book
Polycyclic Aromatic Hydrocarbons
Paris Memorandum of Understanding on Port State Control
International Group of Protection and Indemnity Associations
Polychlorinated Biphenyl
Polychlorinated Terphenyls
Perfluorocarbons
Prior Informed Consent


Abbreviations

POPs

PPR
PSC
PSSA
RINA
Riyadh MoU
SAR
SBTs
SDC
SDRs
SECAS
SOLAS
SOx
SSE
STCW
STCW-F
TBT
TC
TOVLOP
TSPP
UN
UNCED
UNCLOS
UNDP
UNEP
UNESCO
UNFCCC
VLCC
VOCs
WHO
WMO

WNTI
WSC
WWF

xi

Persistent Organic Pollutants
Subcommittee on Pollution Prevention and Response
Port State Control
Particularly Sensitive Sea Area
Royal Institution of Naval Architects
Riyadh Memorandum of Understanding on Port State Control
Search and rescue
Segregated Ballast Tanks
Subcommittee on Ship Design and Construction
Special Drawing Rights
SOx Emission Control Areas
International Convention for the Safety of Life at Sea
Sulphur Oxides
Subcommittee on Ship Systems and Equipment
International Convention on Standards of Training,
Certification and Watchkeeping for Seafarers
Standards of Training, Certification and Watchkeeping for
Fishing Vessel Personnel
Tributyl Tin
Technical Cooperation Committee
Tanker Owners’ Voluntary Agreement on Liability for Oil
Pollution
International Conference on Tanker Safety and Pollution
Prevention

United Nations
United Nations Conference on Environment and Development
United Nations Convention on the Law of the Sea
United Nations Development Programme
United Nations Environment Programme
United Nations Educational, Scientific and Cultural
Organisation
1992 United Nations Framework Convention on Climate
Change
Very Large Crude Carrier
Volatile Organic Compounds
World Health Organisation
World Meteorological Organisation
World Nuclear Transport Institute
World Shipping Council
World Wide Fund For Nature


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Contents

1

2

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1.2
IMO and Marine Pollution from Ships . . . . . . . . . . . . . . . . . . .
1.3
Historical Development of IMO Legal Instruments and
Institutional Structure for the Prevention of Pollution of
the Marine Environment from Vessels . . . . . . . . . . . . . . . . . . .
1.4
Scope and Perspective of the Book . . . . . . . . . . . . . . . . . . . . . .
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
IMO Institutional Structure and Law-Making Process . . . . . . . . . .
2.1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.2
Actors in the IMO Law-Making Process . . . . . . . . . . . . . . . . . .
2.2.1
Member States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.2.1.1 Port, Coastal and Flag States . . . . . . . . . . . . .
2.2.1.2 Developed, Developing and Least Developed
States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.2.2
United Nations and Other Intergovernmental
Organisations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.2.3
International Non-governmental Organisations with
Consultative Status . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.3
IMO Institutional Framework and Institutional Politics . . . . . . .
2.3.1
Assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.3.2

Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.3.3
Maritime Safety Committee (MSC) . . . . . . . . . . . . . . .
2.3.4
Marine Environment Protection Committee (MEPC) . . .
2.3.5
Technical Cooperation Committee (TC) . . . . . . . . . . . .
2.3.6
Legal Committee (LEG) . . . . . . . . . . . . . . . . . . . . . . .
2.3.7
Facilitation Committee (FAL) . . . . . . . . . . . . . . . . . . .
2.3.8
Sub-committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.3.9
Secretariat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.3.10 IMO Funding and Influence . . . . . . . . . . . . . . . . . . . . .

1
1
3

4
10
11
15
15
16
16
16
18

19
20
21
21
22
24
25
26
26
27
27
28
29
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xiv

Contents

2.4

IMO Law-Making Process . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.4.1
IMO Mandate Under UNCLOS . . . . . . . . . . . . . . . . .
2.4.2
Tacit Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . .
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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29
31
36
37
38

3

Pollution Prevention, Response and Compensation . . . . . . . . . . . .
3.1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.2
Pollution by Discharge of Oils and Chemicals . . . . . . . . . . . . .
3.3
Dangerous Goods, Sewage and Garbage . . . . . . . . . . . . . . . . .
3.4
Air Pollution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.5
Special Pollution Prevention Areas . . . . . . . . . . . . . . . . . . . . .
3.6
Particularly Sensitive Sea Area . . . . . . . . . . . . . . . . . . . . . . .
3.7
OPRC Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.8

Intervention Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.9
Liability and Compensation . . . . . . . . . . . . . . . . . . . . . . . . . .
3.10 Marine Pollution by Dumping of Wastes . . . . . . . . . . . . . . . .
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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43
44
49
50
52
53
55
56

57
60
61
62

4

Management of Ships’ Ballast Water and Biofouling . . . . . . . . . . .
4.1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.2
Management of Ships’ Ballast Water . . . . . . . . . . . . . . . . . . . .
4.2.1
Response of the Global Community . . . . . . . . . . . . . . .
4.2.2
IMO Initiatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.2.3
General Obligations Under the BWM Convention . . . .
4.2.4
Ballast Water Management Plan and Standard . . . . . . .
4.2.4.1 Ballast Water Exchange Standard (Regulation
D-1 Standard) . . . . . . . . . . . . . . . . . . . . . . . .
4.2.4.2 Ballast Water Performance Standard
(Regulation D-2 Standard) . . . . . . . . . . . . . . .
4.2.5
Implementation of Ballast Water Standards . . . . . . . . .
4.3
Management of Ships’ Bio-fouling . . . . . . . . . . . . . . . . . . . . . .
Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

67
67
69
69
70
71
72

Recycling of Ships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.2
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.3
Structure of the Convention . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.4
Salient Features of the Convention . . . . . . . . . . . . . . . . . . . . . .
5.4.1
General Obligations . . . . . . . . . . . . . . . . . . . . . . . . . .
5.4.2
Green Shipbuilding . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.4.3
Inventory of Hazardous Wastes . . . . . . . . . . . . . . . . . .
5.4.4
Preparation for Ship Recycling . . . . . . . . . . . . . . . . . .
5.4.5
Certification and Surveying of Ships . . . . . . . . . . . . . .

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88
89
89
90
90
90
92

5

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74
75
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5.4.6

Environmentally-Sound Management of Ship
Recycling Facilities . . . . . . . . . . . . . . . . . . . . . . . . .
5.4.7
Inspection and Detection of Violations . . . . . . . . . . . .

5.5
Debatable and Unresolved Issues . . . . . . . . . . . . . . . . . . . . . .
5.5.1
Pre-cleaning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.5.2
Gas-Free-for-Hot-Work Certificate . . . . . . . . . . . . . .
5.5.3
Application of the Convention to Government Ships . .
5.5.4
Prior Informed Consent and Equivalent Level of
Control to Basel . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.6
North–South Tension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6

7

Reduction of Emissions of Greenhouse Gas (GHG) from Ships . . .
6.1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.2
Technical and Operational Measures for Reduction of
Emissions of GHG from Ships . . . . . . . . . . . . . . . . . . . . . . . .
6.2.1
SEMP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.2.2
EEDI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.3

Legal and Implementation Challenges for Developing
Countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.4
Market-Based Measures (MBM) . . . . . . . . . . . . . . . . . . . . . .
6.5
The Issues Concerning the CBDR Principle, Assistance,
and Technology Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Implementation of IMO Legal Instruments: International
Technical and Financial Cooperation . . . . . . . . . . . . . . . . . . . . . .
7.1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.2
Effectiveness of IMO Legal Instruments . . . . . . . . . . . . . . . . .
7.3
Legal and Institutional Aspects of Implementation . . . . . . . . .
7.3.1
Enforcement of Pollution Control and Equipment
Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.3.2
Reception Facilities . . . . . . . . . . . . . . . . . . . . . . . . .
7.3.3
Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.4
Major Challenges in Implementation . . . . . . . . . . . . . . . . . . .
7.4.1
Implementation of IMO Conventions in Domestic
Legal System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.4.2

Lack of Political Will . . . . . . . . . . . . . . . . . . . . . . . .
7.4.3
Financial and Technical Issues . . . . . . . . . . . . . . . . .
7.4.4
Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.4.5
Interagency Conflict . . . . . . . . . . . . . . . . . . . . . . . . .
7.4.6
Economic Disincentive . . . . . . . . . . . . . . . . . . . . . . .

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137
138
138
139


xvi

Contents

7.5
7.6

Reforming Institutional and Law Making Process . . . . . . . . . .
North-South Tension and the Role of Common but
Differentiated Treatment Principle . . . . . . . . . . . . . . . . . . . . .
7.7
Strengthening International Technical and Financial
Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8

. 139
. 141
. 143
. 145
. 146

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169


Chapter 1

Introduction

1.1

Introduction

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

1
Convention on the International Maritime Organization, opened for signature 6 March 1948,
article 1(a), 289 UNTS 48 (entered into force 17 March 1958) (hereinafter the IMO Convention
1948 or the IMCO Convention 1948). “As a result of the entry into force of the amendments
adopted by the IMCO Assembly by its resolutions A.358 (IX) of 14 November 1975 and A.371
(X) of 9 November 1977 [rectification of resolution A.358 (IX) (see chapter XII.1(d)]], the name of
the Intergovernmental Maritime Consultative Organization (IMCO) has been changed to “International Maritime Organization (IMO)” and the title of the Convention modified accordingly.”
Convention on the International Maritime Organization />aspx?src¼TREATY&mtdsg_no¼XII-1&chapter¼12&lang¼en, last accessed on 17 June 2014.
2
IMO Convention, article 2.

© Springer International Publishing Switzerland 2015
Md. S. Karim, Prevention of Pollution of the Marine Environment from Vessels,
DOI 10.1007/978-3-319-10608-3_1

1


2

1 Introduction

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

3

See Chap. 6.
Ibid.
5
Ibid.
6
Ibid.
7
Ibid.
8
Ibid.
9
Tan (2006), pp. 374 and 375.
4


1.2 IMO and Marine Pollution from Ships

3

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 (GESAMP). 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 GESAMP13
10

For example, M’Gonigle and Zacher (1979), Cusine and Grant (1980), Tan (2006), Molenaar
(1998), Franckx (2001), and Wang (2011).
11

UNCLOS, art 1(4).
12
Joint Group of Experts on the Scientific Aspects of Marine Pollution, Reducing Environmental
Impacts of Coastal Aquaculture. last
accessed on 11 July 2014.
13
On the debate regarding the definition of marine pollution, see generally: Tomczak Jr (1984) and
Boehmer-Christiansen (1982).


4

1 Introduction

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: landbased 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

14
The term vessel-source marine pollution, pollution form ships and pollution from vessels will be
used interchangeably.
15
On IMCO see generally, Simmonds (1963), Johnson (1963), Juda (1977), O’Connell (1970), and
Greenberg (1976).
16
International Convention for the Prevention of Pollution of the Sea by Oil, opened for signature
12 May 1954, 327 UNTS 3 (entered into force 26 July 1958).

1.3 Historical Development of IMO Legal Instruments and Institutional. . .

5

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
17

Sands (2003), p. 393. Also see Convention on Fishing and Conservation of Living Resources of
the High Seas, opened for signature 29 April 1958, 559 UNTS 286 (entered into force 20 March
1966); Convention on the Continental Shelf, opened for signature 29 April 1958, 499 UNTS
311 (entered into force 10 June 1964); Convention on the High Seas, opened for signature 29 April
1958, 450 UNTS 82 (entered into force 30 September 1962).
18
IMO, MARPOL 73-78: Brief history, , last accessed on 14 July 2014.
19
Ibid.
20
Ibid.
21
Ibid.
22
Ibid.


6

1 Introduction

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
OILPOL 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,
23
International Convention on Civil Liability for Oil Pollution Damage, opened for signature
29 November 1969, 973 UNTS 3, (entered into in force 19 June 1976), as amended by the 1976
Protocol to the 1969 Convention, 16 ILM 617 (entered into in force 8 April 1981) (hereinafter CLC
69).
24
International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution
Casualties, opened for signature 29 November 1969, 9 ILM 25 (entered into force 6 May 1975) as
amended by the 1973 Protocol Relating to Intervention On the high Seas in Cases of Marine
Pollution by Substances other than Oil, opened for signature 2 November 1973, 13 ILM

650 (entered into force 30 March 1983) (hereinafter Intervention Convention).
25
International Convention on the Establishment of an International Fund for Compensation for
Oil Pollution Damage, opened for signature 18 December 1971 1110 UNTS 57 (entered into force
16 October 1978), as amended by the 1976 Protocol to the 1971 Fund Convention, 16 ILM
621 (entered in force 22 November 1994) (ceased to operation 24 May 2002) (hereinafter FUND
71).
26
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter,
opened for signature 29 December 1972, 11 ILM 1294 (entered into force 30 August 1975).
27
International Convention for the Prevention of Pollution from Ships, opened for signature
2 November 1973, 1340 UNTS 184 as modified by the Protocol of 1978 to the 1973 Convention,
opened for signature 17 February 1978, 1341 UNTS 3 (entered into force 2 October 1983)
(MARPOL 73/78). For most recent version see MARPOL: Consolidated Edition 2011 (IMO,
London, 2011) (hereinafter MARPOL 73/78).
28
Hughes et al. (2002), p. 628.


1.3 Historical Development of IMO Legal Instruments and Institutional. . .

7

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

29

MARPOL 73/78, art 4.
MARPOL 73/78, art 9(3).
31
MARPOL 73/78, art 5.
32
A State that becomes party to MARPOL must accept Annex I and II. Annexes III–VI are
voluntary annexes.
33
MARPOL 73/78, art 16. According to this process the amendments enter into force on a
specified date unless an agreed number of States parties object by an agreed date.
30


8

1 Introduction

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
As listed in Table 1.1 the IMO has promoted the adoption of a huge number of
legal instruments related to marine environmental protection. Development of
international legal instruments is an on-going process. New and emerging environmental challenges warrant more proactive action from the global community for the
prevention of vessel-source marine pollution. IMO’s 6-year strategic plan

recognised the need for IMO to give particular emphasis on the following issues
over the next 6 years:
• being proactive in identifying shipping activities and incidents that could have
an adverse impact on the environment and, therefore, in developing
corresponding preventive measures;
• contributing to international efforts to reduce atmospheric pollution and address
climate change;
• developing effective preparedness and response strategies for shipping incidents
in order to mitigate their impact on the environment; and
• making new ships more environmentally-friendly by implementing the “cradle
to grave” concept for new ships, whilst further facilitating practicable solutions
for the recycling of existing ships.40

34
International Convention on Oil Pollution Preparedness, Response and Cooperation, opened
for signature 30 November 1990, 30 ILM 733 (entered into force 13 May 1995)
(hereinafter OPRC).
35
International Convention for the Control and Management of Ship’s Ballast Water and Sediments (hereinafter BWM Convention), 2004, IMO Doc. BWM/ CONF/36 (2004) reprinted in
ATNIF (2005) 18 (not yet in force).
36
International Convention on the Control of Harmful Anti-fouling Systems on Ships 2001, IMO
Doc. AFS/CONF/26 (5 October 2001) (entered into force 17 September 2008) (hereinafter Antifouling Systems Convention).
37
Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas,
IMO Doc. A24/Res.982 (6 February 2006).
38
Hong Kong International Convention for the Safe and Environmentally Sound Recycling of
Ships, opened for signature 1 September 2009, IMO Doc. SR/CONF/45 (19 May 2009) (not yet in
force) (hereinafter IMO Recycling of Ships Convention).

39
Resolution MEPC.203(62), Report of the Marine Environment Protection Committee on Its
Sixty-Second Session, ANNEX 19, IMO Doc. MEPC 62/24/Add.1 (26 July 2011).
40
Strategic Plan for the Organization (for the Six-Year Period 2012 to 2017), IMO Doc. A
27/Res.1037 (20 December 2011).