Purpose and issues
The first initiatives in the fight against marine pollution date back to the mid-20th century (1954 International Convention on the Prevention of Pollution of the Sea by Oil, known as the Oil Pollution Convention). The development of joint international regulations on oil arose principally from public pressure following major oil tanker disasters such as the Torrey Canyon (1967), the Amoco Cadiz (1978), and the Exxon Valdez (1989). Similar disasters still happen, such as the Erika (1999) or the Prestige (2002), even though the Marpol Convention certainly helps limit their occurrence.
There are several international conventions governing marine protection, but not all have the same stated goals.
Some concern pollution generated on land; others marine activities themselves (ship pollution); and yet others concern specific types of pollution (e.g. hasardous wastes). Civil liability measures incorporating compensation for damages caused by oil were also implemented (International Convention on Civil Liability for Oil Pollution Damage, Brussels, 29 November 1969; and the International Convention of 18 December 1971 leading to the creation of the IOPC Funds).
Following the United Nations Conference on the Human Environment (Stockholm, 1972), legal action was characterised by a more systematic approach to oil marine pollution. Two major Conventions attest to this international willingness to cooperate: the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter; and the 1973 Marpol ConveNettoyage au large de Biarritz – Marée noire due au “Prestige” – Pyrénées Atlantiques (64) © Yann Arthus-Bertrandntion on pollution from ships.
The latter aims to regulate pollution from oil, chemicals, harmful substances carried in packaged form, garbage, sewage, and atmospheric emissions. It is considered the benchmark text for marine pollution prevention.
The Convention outlines technical rules and their compliance, and includes 6 annexes.
– construction (mandatory double hulls on oil and chemical tankers);
– inspections (especially in-depth inspections on existing tankers);
– facilities (oily water separating facilities);
– records (oil records, records of cargo);
– port procedures (record of disposal of cargo residues, port cleaning of tankers).
In the case of oil tankers, the goal is to eliminate single hull vessels and implement reinforced inspections of the use and state of oil tankers. Oil tankers built after 1996 must have a mandatory double hull or similar design. The European Union has also published Regulation (EC) N° 417/2002 on the accelerated phasing-in of double hull oil tankers, to keep obsolete, single hull vessels (banned in American waters) from appearing in European waters.
Effects and application
The Convention aims to significantly reduce total authorised discharges for new oil tankers (since only operational discharges of oil are authorised and only more than 50 nautical miles from the nearest land). This approach may be criticised, but is considered more effective than an outright ban on discharges and spills, which would be almost impossible to enforce. On the other hand, the Convention bans discharges in certain “special areas” (the Mediterranean Sea, the Black Sea, the Baltic Sea, the Red Sea, the Persian Gulf, the Gulf of Aden, the Antarctic, and the North Sea). This has increased requirements and demand for oil tanker waste recovery facilities.
The Convention, in Annex 1, describes in detail the premises and capacity required for waste recovery facilities. However, it is less specific regarding responsibility for installing these facilities: whether it lies with the State or with industry authorities. Moreover, few procedures for concretely monitoring oil tanker waste facilities have been implemented. In practice, waste recovery facilities are still rare in oil-exporting countries where they are nevertheless needed. The absence of these facilities, or their inadequacy for rapid tank discharge, is often mentioned as justification for treaty violations.
According to the Convention, each member State must penalise violations committed by vessels sailing under its flag, or by vessels within its jurisdiction. Ships lacking the certificates required by the Convention may be retained by the State carrying out the inspection.
In practice, however, the Marpol Convention is not sufficiently binding to penalise violations of marine pollution rules. Its effectiveness resides in the technical standards it outlines; it is a preventive instrument. In the event of a major incident, the treaties governing civil liability and compensation are more likely to come into play, as are the more legally-binding rules of EU law. After the Erika tanker disaster, for example, the European Court of Justice based its decision (24 June 2008) on the EU waste directive; it ruled that the oil producer, Total, would be liable for the cost of cleaning up waste generated by the accidental oil spill, especially where those costs could not be shouldered by the IOPC funds.
In theory, the technical annexes to the Marpol Convention may easily be amended by a tacit acceptance procedure. However in practice, the 27 amendments to the Convention have been adopted by the Conference of the Parties (COP) or the Marine Environment Protection Committee of the International Maritime Organization (IMO).
The system implemented by the Marpol Convention has not eliminated risks, especially due to the increased use of flags of convenience and the questionable role of some private players in the oil transport industry.
Although the Convention includes rather sophisticated monitoring mechanisms (such as certificates and ship inspections), their implementation is often inadequate. There are several possible reasons for these inadequacies: the lack of a legally-binding procedure for failure to comply; of a specific mechanism for mediation; and of qualified personnel in the country of flag registration.
Moreover, the considerable cost of compliance with Marpol rules curbs the desire of many countries to ratify it. Several oil-exporting countries are not yet Party to the Convention.