Vessel-Source Marine Pollution The Law and Politics of International Regulation

Author: Alan Khee-Jin Tan
Publisher: Cambridge University Press
ISBN: 9781107406445
Published In: August 2012
Format: Paperback , 458 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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Analysing the regulation of vessel-source pollution from the perspective of the political interests of key players in the ship transportation industry, this 2005 book by Alan Khee-Jin Tan offers a comprehensive and convincing account of how pollution of the marine environment by ships may be better regulated and reduced. In this timely study, he traces the history of regulation at the International Maritime Organization (IMO) and investigates the political, economic and social forces influencing the IMO treaties. Also examined are the efforts of maritime states, ship-owners, cargo owners, oil companies and environmental groups to influence IMO laws and treaties. This is an important book, which uncovers the politics behind the law and offers solutions for overcoming the deficiencies in the regulatory system. It will be of great interest to professionals in the shipping industry as well as practitioners and students.

• Provides analysis of the political and economic background to the International Maritime Organization treaties which regulate pollution from ships

• Provides analysis of the positions of the various state and industry players, including interviews

• Offers solutions for improving regulation to stamp out the practice of 'sub-standard' shipping

Foreword					page xv
Preface					xvii
Table of Conventions					xix
Table of European Union Instruments					xxiv
Table of IMO Resolutions and Guidelines					xxvi
Table of Miscellaneous Instruments					xxix
Table of Domestic Legislation					xxx
Table of Cases (International Courts and Tribunals)					xxxi
Abbreviations					xxxii
Part	A	The Regulation of Vessel-Source Pollution in its Eco-Political Context
1	Vessel-Source Pollution, the Ecological Imperative and the Compliance Problem				3
	1	Overview			3
	2	Regulating the Sources of Marine Pollution			10
	3	Whither the Freedom of Navigation?			17
	4	Technical Issues and Jurisdiction over Ships			19
	5	Outline of Analysis			25
2	The Dynamics of the Law-Making Process: Actors, Arenas and Interests				29
	1	Overview			29
	2	Key Actors in the Decision-Making Process			34
		2.1	The Maritime Interests		34
			2.1.1	The Shipowners and Operators	34
			2.1.2	The Cargo Owners and Charterers	38
			2.1.3	The Protection and Indemnity (P&I) Clubs and the Marine Insurers	40
			2.1.4	The Classification Societies	43
			2.1.5	The Military Interests	46
			2.1.6	The Flag States and Open Registries	47
			2.1.7	States with Maritime Interests	62
		2.2	The Coastal/Environmental Interests		67
			2.2.1	The Environmental Non-Governmental Organisations	67
			2.2.2	Public Opinion and Media Reaction	69
			2.2.3	States with Coastal Interests	71
		2.3	The Developing Countries		73
	3	Major Arenas for Decision-Making			75
		3.1	International Fora: The International Maritime Organization (IMO)		75
			3.1.1	IMO’s Initial Years	75
			3.1.2	The Constitutive Structure of IMO	76
			3.1.3	IMO and Maritime Conventions	77
		3.2	International Fora – United Nations Bodies and Specialised Agencies		80
		3.3	Regional Fora		83
			3.3.1	Legal and Political Developments in Europe	83
			3.3.2	Memoranda of Understanding (MOUs) on Port State Control	90
		3.4	Domestic Fora – Agitation Within States		94
	4	Marine Pollution Regulation and the Interplay of Interests			98
		4.1	The Relative Capacities of the Relevant Actors		98
		4.2	The Contemporary Political Dynamics at IMO		102
Part	B	Vessel-Source Pollution and the International Legislative Process
3	Vessel-Source Pollution and Regime Formation				107
	1	Pollution Control Standards and Reception Facilities			107
		1.1	Early Regulatory Efforts		107
		1.2	The OILPOL Regime and the Load-On-Top (LOT) System		110
		1.3	MARPOL 73		126
			1.3.1	Annex I and Segregated Ballast Tanks (SBTs)	126
			1.3.2	Annexes II to V	132
		1.4	MARPOL 73/78 and Crude Oil Washing (COW)		133
		1.5	The Double Hull Requirement		139
			1.5.1	The Exxon Valdez and the 1992 Amendments	139
			1.5.2	The Erika and the 2001 Amendments	147
			1.5.3	The Prestige and the 2003 Amendments	150
	2	Air Pollution from Ships			155
	3	Anti-Fouling Systems and Tributyl Tin (TBT) Contamination			162
	4	Harmful Aquatic Organisms and Ballast Water Management			169
	5	Conclusion			174
4	Jurisdiction over Vessel-Source Marine Pollution				176
	1	The Concept of ‘Jurisdiction’ in Marine Pollution			176
	2	Early Attempts to Extend Coastal State Jurisdiction			181
	3	Jurisdiction under the MARPOL Regime			184
		3.1	Prescriptive Jurisdiction under MARPOL 73		184
		3.2	Enforcement Jurisdiction under MARPOL 73		187
		3.3	The 1978 MARPOL Protocol		191
	4	The 1982 UN Conference on the Law of the Sea (UNCLOS III)			192
		4.1	The Law of the Sea Convention (LOSC) and Part XII on the Marine Environment		192
		4.2	The Allocation of State Jurisdiction under the LOSC		201
			4.2.1	Flag State Jurisdiction	201
			4.2.2	Coastal State Jurisdiction	204
			4.2.3	Port State Jurisdiction	217
	5	Conclusion			222
5	Implementation and Compliance				230
	1	Overview			230
	2	Ratification, Incorporation into Domestic Law and Implementation			232
	3	The Enforcement Obligations of States			236
		3.1	Pollution Control Standards and State Enforcement Records		236
			3.1.1	Discharge vs. Equipment Standards	236
			3.1.2	State Enforcement of Pollution Control Standards	239
		3.2	The Provision of Waste Reception Facilities in Ports		251
		3.3	Reporting on Implementation Activities		269
			3.3.1	Reporting on the Provision of Reception Facilities	269
			3.3.2	Reporting on Enforcement Action	273
	4	Conclusion			282
6	Liability and Compensation				286
	1	Overview			286
	2	The 1969 Civil Liability Convention (CLC 69)			288
		2.1	Developments Preceding CLC 69		288
		2.2	The 1969 Brussels Conference		293
	3	The 1971 Fund Convention (FUND 71)			300
		3.1	Developments Preceding FUND 71		300
		3.2	The 1971 FUND Conference		302
	4	Amendments to TOVALOP/CRISTAL and CLC/FUND			309
		4.1	Revising the Industry Initiatives		309
		4.2	Developments Preceding the 1984 Conference		311
		4.3	The 1984 IMO Conference		313
		4.4	Further Revision of TOVALOP and CRISTAL		315
	5	Liability and Compensation in the United States			318
		5.1	The Exxon Valdez and Developments Preceding OPA-90		318
		5.2	Implications of OPA-90		322
	6	The 1992 Protocols to the CLC and FUND Conventions			327
	7	Pollution by Hazardous and Noxious Substances (HNS)			334
	8	Pollution by Bunker Fuel Oils			339
	9	The Liability and Compensation Regimes: Concluding Analysis			342
Part	C	The Future of Regulation
7	Challenges and Prescriptions				347
	1	Improving Institutional Responses			347
		1.1	Pro-active Rule-Making by IMO		348
		1.2	Prompt Entry into Force for Conventions		351
		1.3	Ensuring Effective Enforcement and Compliance		355
			1.3.1	Market Discrimination Against Sub-standard Shipping	356
			1.3.2	Liability of Non-Owner Interests	358
			1.3.3	Return of the Developed State Flags	363
			1.3.4	Tightening Flag State Obligations	365
			1.3.5	Enhancing Port State Control	367
		1.4	Enforcement Powers for IMO		369
	2	Enhancing Equity in Representation and Responsibilities			373
		2.1	Reforming IMO		374
			2.1.1	Institutional and Financial Equity	374
			2.1.2	Discipline in Agenda-Setting	376
		2.2	States and the Provision of Reception Facilities		378
		2.3	The Cargo Interests and Burden-Sharing		379
		2.4	Shipowners and Intra-Industry Co-operation		381
	3	Final Thoughts			383
Bibliography					385
Index					404