Vessel-Source Marine Pollution: The Law and Politics of International Regulation / Edition 1

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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. 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.
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Alan Khee-Jin Tan is an Associate Professor in the Faculty of Law at the National University of Singapore.

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Cambridge University Press
0521853427 - Vessel-Source Marine Pollution - The Law and Politics of International Regulation - by Alan Khee-Jin Tan


The Regulation of Vessel-Source Pollution in its Eco-Political Context

1 Vessel-Source Pollution, the Ecological Imperative and the Compliance Problem

1. Overview

The protection of the marine environment has become one of the most important ecological issues of modern times. Indeed, it forms part of that general emergence of environmental consciousness which has captured world attention in the past five decades or so and which figures so prominently in the politics of international discourse today. The sources of human-induced marine pollution1 are numerous - these include discharges from land-based sources, ships, atmospheric deposition, ocean dumping and offshore oil and gas installations.2 This work is concerned with the regulation of vessel-source marine pollution, i.e. pollution of the sea emanating from both deliberate as well as accidental discharges by ocean-going ships.3

In the past few decades, international, regional and national regulation over shipping matters such as navigational safety, vessel-source pollution and maritime security have grown to such an extent that the global shipping industry today faces a litany of costly regulatory rules. Consequently, the shipowner's traditional right of free navigation is presently qualified by important imperatives such as the protection of the marine environment and the promotion of maritime safety. In particular, the emphasis on marine pollution control by concerned coastal and port states has come to substantially erode the traditional right of free navigation accruing to maritime states and their shipping interests.

Despite the proliferation of regulations over shipping, many international instruments which prescribe pollution control measures are still not effectively enforced and adhered to. Indeed, the most obvious weakness of the regulatory system appears to be its failure to ensure effective enforcement of and compliance with the relevant rules and standards.4 Consequently, many 'sub-standard', low-cost ships run by irresponsible operators still ply the oceans today, posing significant risks to human lives and the marine environment.5 This has led coastal and port states to impose more stringent regulations on ships entering or coming near their waters.

A central tenet of this work is the argument that deficiencies in the regime formation process and the peculiar features of the shipping industry have led to a general lack of incentives for compliance with safety and pollution control rules. Thus, in spite of the retreat of the doctrine of free navigation and the growth in regulation over shipping, transgressions of safety, environmental and security rules by sub-standard ships remain all too common. The phenomenon of sub-standard shipping is rampant in many parts of the globe, involving cost-conscious operators who are indifferent to safety and pollution control rules.6 Thus, many of these operators' ships are old, ill-maintained and operated in a manner falling far below or only minimally above the requirements set out by regulatory instruments.7 This is to the great detriment of responsible operators, who face distinct competitive disadvantages compared to their low-cost, low-standard rivals.8

In recent years, the frequent occurrences of ship pollution incidents, both intentional and accidental, have raised questions as to why these incidents continue to occur despite the existence of numerous rules and practices relating to proper surveys by flag states and delegated classification societies, ship vetting by the oil industry, supervision by insurers and inspections by port state control authorities.9 The inescapable conclusion appears to be that the prevailing international rules and standards, principally those enacted by the International Maritime Organization (IMO), have not been adequately enforced and complied with.

What is clear is that the contemporary structural realities within which the maritime trading system operates leave great room for inadequate implementation and enforcement of the relevant pollution control rules. Arising from the extremely competitive nature of the shipping business, a significant number of shipowners and operators continue to collude with indulgent flag states, classification societies and insurers to overlook safety and pollution standards so as to reduce operating costs.10 Thus, the very actors whose task it is to supervise and regulate the owners are effectively compelled to compete for the latter's patronage. Moreover, the generally secretive and fragmented nature of the shipping industry, together with clandestine efforts to use one-ship companies to shield owners' true identities and the reluctance among owners to co-operate and share information, all add to a lack of compliance incentives.11

In relation to the 'human element' of shipping, cost-cutting operators are known to hire cheap and ill-trained seafarers. This often results in low crew morale, high turnover and, more dangerously, overwork, fatigue and increased risks of negligence and accidents. On their part, cargo owners and charterers such as the oil companies often favour low-cost sub-standard vessels. Indeed, the chartering departments of major oil corporations are known to prefer cheaper, 'spot' market tonnage in order to enjoy lower freight rates.12 This commonly drives freight rates down, to the advantage of the sub-standard operators.

At the same time, other actors in the maritime industry are susceptible to cost-cutting pressures. The marine insurers, for instance, compete intensely for shipowners' business, often forgoing higher premia and deductibles for riskier ships.13 Meanwhile, shipbuilders respond to the cost-conscious culture by using cheaper high-tensile steel which renders ships lighter but more vulnerable.14 Shipyards have also been known to impose pressure on classification societies keen on their business to lower certification standards.15 In addition, banks, mortgagees and ship financiers may neglect to press for higher operational standards.

For their part, many ports worldwide are unable or unwilling to conduct thorough inspections on visiting ships due to the expenses and delays involved. Not uncommonly, port inspectors may even be in complicity with classification societies to gloss over deficiencies in the interest of faster 'turn-around' of ships. Overall, the whole emphasis in the shipping industry on cost-cutting and short-term profitability has led to a discernible decline in safety and pollution prevention standards.16 This exerts a general downward pressure on freight rates to the detriment of the quality operator.

The above account of maritime trading realities, albeit simplified, goes to the heart of why proper compliance with the relevant rules and standards is often absent in the ship transportation industry. Whenever any actor tries to maintain safety and pollution prevention standards, he is faced with the prospect of losing business to cheaper competitors. At the same time, the proliferation of new rules and regulations actually confers a further competitive advantage on the sub-standard operator, who does not have to contend with the ever-increasing costs of compliance.17 Overall, adequate incentives for compliance are lacking. In the result, a cycle of competition and lowering of standards is created, typically resulting in a 'race to the bottom' phenomenon.18

The situation is markedly worse in regions of the world where trading practices are less transparent, maritime administrations under-developed and port state control lacking. As such, it is market wisdom that many sub-standard ships engage in regional trades, rarely venturing into US or European waters where port state enforcement is known to be stricter.19 Thus, as the competitive nature of the shipping industry continues to erode the effective enforcement of regulations, political pressure grows on legislators worldwide to impose ever more stringent laws on ship operators. Such pressure is especially evident in the aftermath of politically charged events such as vessel accidents causing massive ocean and coastal pollution.

That said, the maritime world comprises a diversity of actors, many of whom are perfectly responsible operators. Therefore, one needs to be discriminating before painting the whole industry with the same broad brushstroke. However, it remains true that even the most reputable of actors - states and industry alike - often experience commercial pressures and are susceptible to lapses of judgment or even outright transgressions. Hence, it is not uncommon for respectable owners, charterers, classification societies or insurers to compromise on regulatory standards in the face of tight schedules, severe competition and unprofitable market conditions.20 This is borne out by the fact that a good number of ships which have been involved in serious accidents or detained by port state control authorities in recent years have been registered in and owned, operated, chartered, classed, insured or inspected by fairly reputable actors.

The challenge of eradicating sub-standard shipping and of ensuring safer ships and cleaner oceans will thus have to be met with greater enforcement rigour. The problem is largely due to the fact that the international regime formation process which generates the relevant regulations often fails to lay down optimum conditions for compliance and effectiveness. In particular, the regulatory process at the International Maritime Organization (IMO) - the primary global forum for regulating ship safety and pollution issues - often omits to address the ship operators' lack of incentives to install or practise adequate safety and pollution control features.

Similarly, in laying down obligations for states to provide port reception facilities for ship wastes, the relevant IMO treaties such as MARPOL 73/7821 do not adequately address most states' lack of incentives to do so. As far as the system for reviewing implementation is concerned, IMO procedures for reporting compliance and analysing state reports are lacking. In general, the treaties tend to emphasise the technical features of safety and pollution control measures without going to the root causes of sub-standard shipping, viz. the absence of incentives for compliance and the lack of enforceability of measures. Hence, the scenario of proliferating rules with inadequate implementation is all too pervasive in the maritime sector, be it at the international, regional or national levels.

Such regime deficiencies are themselves the direct result of features in the ship transportation industry which actively impede implementation of and compliance with rules. As analysed later, the nature of the industry and the dynamics of interaction among its various actors frequently lie at the root of sub-standard shipping practices. In this regard, the present work aims to assess the systemic compliance challenges faced not only by the international regime formation system (comprising, inter alia, IMO and the state actors), but also by the ship transportation industry itself. Among the issues to be analysed are the cost-conscious nature of the industry, its lack of incentives for responsible behaviour and the conflict of interests facing actor-regulators like IMO, flag and port states, private classification societies and marine insurers.

Within the maritime sphere, the systemic deficiencies in the international regulatory system are often met by states or group of states resorting to unilateral or regional laws and stringent port state control action.22 This is particularly common in the aftermath of ship pollution incidents which attract huge media and political attention. In recent years, incidents such as the Amoco Cadiz, Exxon Valdez, Erika and, lately, the Prestige, have pressured states to impose ever more stringent regulation on the shipping industry. In this regard, unilateral and regional action going beyond internationally agreed standards are often less than desirable as they undercut the ideals of uniformity and certainty which the multilateral process seeks to uphold. Yet, in the face of continued intransigence by sub-standard ship operators, unilateral and regional action have become preferred political options for environmentally conscious states which view multilateral decision-making to be too slow and encumbered.

Overall, the shortcomings of marine pollution regulation can be explained by the quartet of variables expounded by the scholars E. B. Weiss and H. Jacobson in their study of compliance with international treaty requirements. These factors are: the nature of the accord in question, the nature of the activity being regulated, the international environment within which regulation takes place, and features peculiar to individual state parties to treaties.23 While these factors are frequently interconnected in any analysis of environmental regulation, it will become apparent that in the specific realm of vessel-source marine pollution, the ship transportation industry's resistance or equivocation toward regulation is a major factor impeding compliance with and effectiveness of the relevant regulatory regimes.

In view of the diversity, influence and differing interests of target actors in the marine pollution arena, their behaviour in affecting compliance with rules and regulations merits special consideration. Thus, it will be argued in this work that the peculiarities of the ship transportation industry substantially affect the nature and effectiveness of the relevant accords, particularly in relation to the lack of incentives among state parties and industry actors to implement these accords. Consequently, prescriptive efforts to enhance the regulation of vessel-source pollution should be directed toward influencing changes within the shipping industry itself. Since this factor can be identified as the root cause of the compliance problem, it should ideally be the most suitable (though not necessarily susceptible) candidate for 'manipulation'.24

Ostensibly, such a strategy would be the most cost-effective means of fostering behavioural change among the relevant actors, thereby providing optimal incentives for compliance with safety and pollution control regimes. Prescriptions for achieving this goal are elaborated upon in this work. These include the inculcation of a culture of compliance throughout the ship transportation industry, the broadening of regulatory measures to encompass non-shipowner actors such as the cargo owners and classification societies, and the promotion of pro-active rule-making, legislative discipline and stakeholder equity within international regulatory agencies.

2. Regulating the Sources of Marine Pollution

In economic parlance, all forms of pollution can be considered externalities of economic growth, the costs of which cannot be adequately internalised into the operator's cost-benefit analyses. Human-induced marine pollution exhibits the core features of the commons tragedy:25

© Cambridge University Press

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Table of Contents

1 Vessel-source pollution, the ecological imperative and the compliance problem 3
2 The dynamics of the law-making process : actors, arenas and interests 29
3 Vessel-source pollution and regime formation 107
4 Jurisdiction over vessel-source marine pollution 176
5 Implementation and compliance 230
6 Liability and compensation 286
7 Challenges and prescriptions 347
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