Vessel-Source Marine Pollution: The Law and Politics of International Regulation (Cambridge Studies in International and Comparative Law, Series Number 45)

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. Cover 1 Half-Title 3 Series-title 5 Title 7 Copyright 8 Dedication 9 Contents 11 Foreword 17 Preface 19 Table of Conventions 21 Table of European Union Instruments 26 Table of IMO Resolutions and Guidelines 28 Table of Miscellaneous Instruments 31 Table of Domestic Legislation 32 Table of Cases (International Courts and Tribunals) 33 Abbreviations 34 PART A The Regulation of Vessel-Source Pollution in its Eco-Political Context 39 1 Vessel-Source Pollution, the Ecological Imperative and the Compliance Problem 41 1. Overview 41 2. Regulating the Sources of Marine Pollution 48 3. Whither the Freedom of Navigation? 55 4. Technical Issues and Jurisdiction over Ships 57 5. Outline of Analysis 63 2 The Dynamics of the Law-Making Process: Actors, Arenas and Interests 67 1. Overview 67 2. Key Actors in the Decision-Making Process 72 2.1 The Maritime Interests 72 2.1.1 The Shipowners and Operators 72 2.1.2 The Cargo Owners and Charterers 76 2.1.3 The Protection and Indemnity (P&I) Clubs and the Marine Insurers 78 2.1.4 The Classification Societies 81 2.1.5 The Military Interests 84 2.1.6 The Flag States and Open Registries 85 2.1.7 States with Maritime Interests 100 2.2 The Coastal/Environmental Interests 105 2.2.1 The Environmental Non-Governmental Organisations 105 2.2.2 Public Opinion and Media Reaction 107 2.2.3 States with Coastal Interests 109 2.3 The Developing Countries 111 3. Major Arenas for Decision-Making 113 3.1 International Fora: The International Maritime Organization (IMO) 113 3.1.1 IMO's Initial Years 113 3.1.2 The Constitutive Structure of IMO 114 3.1.3 IMO and Maritime Conventions 115 3.2 International Fora – United Nations Bodies and Specialised Agencies 118 3.3 Regional Fora 121 3.3.1 Legal and Political Developments in Europe 121 3.3.2 Memoranda of Understanding (MOUs) on Port State Control 128 3.4 Domestic Fora – Agitation Within States 132 4. Marine Pollution Regulation and the Interplay of Interests 136 4.1 The Relative Capacities of the Relevant Actors 136 4.2 The Contemporary Political Dynamics at IMO 140 PART B Vessel-Source Pollution and the International Legislative Process 143 3 Vessel-Source Pollution and Regime Formation 145 1. Pollution Control Standards and Reception Facilities 145 1.1 Early Regulatory Efforts 145 1.2 The OILPOL Regime and the Load-On-Top (LOT) System 148 1.3 MARPOL 73 164 1.3.1 Annex I and Segregated Ballast Tanks (SBTs) 164 1.3.2 Annexes II to V 170 1.4 MARPOL 73/78 and Crude Oil Washing (COW) 171 1.5 The Double Hull Requirement 177 1.5.1 The Exxon Valdez and the 1992 Amendments 177 1.5.2 The Erika and the 2001 Amendments 185 1.5.3 The Prestige and the 2003 Amendments 188 2. Air Pollution from Ships 193 3. Anti-Fouling Systems and Tributyl Tin (TBT) Contamination 200 4. Harmful Aquatic Organisms and Ballast Water Management 207 5. Conclusion 212 4 Jurisdiction over Vessel-Source Marine Pollution 214 1. The Concept of 'Jurisdiction' in Marine Pollution 214 2. Early Attempts to Extend Coastal State Jurisdiction 219 3. Jurisdiction under the MARPOL Regime 222 3.1 Prescriptive Jurisdiction under MARPOL 73 222 3.2 Enforcement Jurisdiction under MARPOL 73 225 3.3 The 1978 MARPOL Protocol 229 4. The 1982 UN Conference on the Law of the Sea (UNCLOS III) 230 4.1 The Law of the Sea Convention (LOSC) and Part XII on the Marine Environment 230 4.2 The Allocation of State Jurisdiction under the LOSC 239 4.2.1 Flag State Jurisdiction 239 4.2.2 Coastal State Jurisdiction 242 4.2.3 Port State Jurisdiction 255 5. Conclusion 260 5. Implementation and Compliance 268 1. Overview 268 2. Ratification, Incorporation into Domestic Law and Implementation 270 3. The Enforcement Obligations of States 274 3.1 Pollution Control Standards and State Enforcement Records 274 3.1.1 Discharge vs. Equipment Standards 274 3.1.2 State Enforcement of Pollution Control Standards 277 3.2 The Provision of Waste Reception Facilities in Ports 289 3.3 Reporting on Implementation Activities 307 3.3.1 Reporting on the Provision of Reception Facilities 307 3.3.2 Reporting on Enforcement Action 311 4. Conclusion 320 6 Liability and Compensation 324 1. Overview 324 2. The 1969 Civil Liability Convention (CLC 69) 326 2.1 Developments Preceding CLC 69 326 2.2 The 1969 Brussels Conference 331 3. The 1971 Fund Convention (FUND 71) 338 3.1 Developments Preceding FUND 71 338 3.2 The 1971 FUND Conference 340 4. Amendments to TOVALOP/CRISTAL and CLC/FUND 347 4.1 Revising the Industry Initiatives 347 4.2 Developments Preceding the 1984 Conference 349 4.3 The 1984 IMO Conference 351 4.4 Further Revision of TOVALOP and CRISTAL 353 5. Liability and Compensation in the United States 356 5.1 The Exxon Valdez and Developments Preceding OPA-90 356 5.2 Implications of OPA-90 360 6. The 1992 Protocols to the CLC and FUND Conventions 365 7. Pollution by Hazardous and Noxious Substances (HNS) 372 8. Pollution by Bunker Fuel Oils 377 9. The Liability and Compensation Regimes: Concluding Analysis 380 PART C The Future of Regulation 383 7 Challenges and Prescriptions 385 1. Improving Institutional Responses 385 1.1 Pro-active Rule-Making by IMO 386 1.2 Prompt Entry into Force for Conventions 389 1.3 Ensuring Effective Enforcement and Compliance 393 1.3.1 Market Discrimination Against Sub-standard Shipping 394 1.3.2 Liability of Non-Owner Interests 396 1.3.3 Return of the Developed State Flags 401 1.3.4 Tightening Flag State Obligations 403 1.3.5 Enhancing Port State Control 405 1.4 Enforcement Powers for IMO 407 2. Enhancing Equity in Representation and Responsibilities 411 2.1 Reforming IMO 412 2.1.1 Institutional and Financial Equity 412 2.1.2 Discipline in Agenda-Setting 414 2.2 States and the Provision of Reception Facilities 416 2.3 The Cargo Interests and Burden-Sharing 417 2.4 Shipowners and Intra-Industry Co-operation 419 3. Final Thoughts 421 Bibliography 423 Treatises 423 Articles in Periodicals 427 Chapters in Treatises 435 Reports by Governmental, Inter-Governmental, Industry and Miscellaneous Bodies 437 Articles in Newspapers 439 Personal Interviews 440 Index 442 Analysing The Regulation Of Vessel-source Pollution From The Perspective Of The Political Interests Of Key Players In The Ship Transportation Industry. 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.--book Jacket. Pt. I. The Regulation Of Vessel-source Pollution In Its Eco-political Context. Vessel-source Pollution, The Ecological Imperative And The Compliance Problem ; The Dynamics Of The Law-making Process: Actors, Arenas And Interests -- Pt. Ii. Vessel-source Pollution And The International Legislative Process. Vessel-source Pollution And Regime Formation ; Jurisdiction Over Vessel-source Marine Pollution ; Implementation And Compliance ; Liability And Compensation -- Pt. Iii. The Future Of Regulation. Challenges And Prescriptions. Alan Khee-jin Tan. Includes Bibliographical References (p. 385-403) And Index. Cambridge Studies in International and Comparative Law is a forum for high-quality studies in the fields of public and private international and comparative law. Although these are distinct legal sub-disciplines, developments since 1946 confirm their interrelation. Comparative law is increasingly used as a tool in the making of law at national, regional and international levels. Private international law is now often affected by international conventions, and the issues faced by classical conflicts rules are frequently dealt with by substantive harmonisation of law under international auspices. Mixed international arbitrations, especially those involving state economic activity, raise mixed questions of public and private international law, while in many fields (such as the protection of human rights and democratic standards, investment guarantees and international criminal law) international and national systems interact. National constitutional arrangements relating to 'foreign affairs', and to the implementation of international norms, are a focus of attention. Analyzing the regulation of vessel-source pollution from the perspective of the political interests of key players in the ship transportation industry, 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 Organisation (I.M.O.) 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. Traces the history of regulation at the International Maritime Organisation (I.M.O.) and investigates the political, economic and social forces influencing the IMO treaties. This is an important book, which uncovers the politics behind the law and offers solutions for overcoming the deficiencies in the regulatory system