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Michael Julian[2]
In providing an overview of this fairly complex subject it is probably easier to address the matter from two perspectives. That of the flag State, that is the government administrative body responsible for ensuring ships flying its national flag fully comply with international conventions for the safety of ships and seafarers and for protection of the marine environment from ship-sourced pollution. The second perspective is that of the port State, ensuring ships visiting its ports comply with international conventions, and also includes as a subset the coastal State which has wide ranging powers and responsibilities concerning shipping within its Exclusive Economic Zone (EEZ).
The paper is designed to assist in identifying some of the numerous issues that are involved in determining roles and responsibilities of flag and port States in preventing pollution of the marine environment.
The paper also looks at a new approach to assist smaller island States with inter-island trade which use smaller or non-convention ships.
Some of the issues of concern which arise in implementing international conventions such as lack of resources, legislative problems and availability of technical assistance are considered.
Finally the paper refers to some of the regional arrangements which operate in the Asia-Pacific region.
Chris Chung, in his discussion paper: ‘International Conventions Relating to Marine Pollution: Contracting Parties and Implementation Issues in the Asia Pacific Region’, which was sent to workshop delegates as background reading, provides a brief summary on a number of relevant conventions and should be used in conjunction with this paper.
It is the responsibility of the flag State to establish and maintain mechanisms for the effective implementation and enforcement of IMO conventions to which the flag State is a party. From the perspective of flag State implementation, the most significant IMO Conventions are:
• The International Convention for the Safety of Life at Sea, 1974 (SOLAS 74), as amended. The main objective of SOLAS 74 is to specify minimum standards for the construction, equipment and operation of ships, compatible with their safety. A number of certificates are prescribed in the Convention, which are issued by the flag State to demonstrate compliance with the Convention.
• The International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto ( MARPOL 73/78), as amended. The purpose of this very comprehensive convention is to set out two distinctive areas of prevention of marine pollution. Firstly, the design, construction, cargo-carrying and equipment requirements of ships to prevent pollution, and secondly, regulations to control discharges and emissions from ships which pollute the marine environment including the air. The Convention is set out with six annexes each covering a specific type of pollution (see discussion paper by Chris Chung).
• The International Convention on Load Lines, 1996 (LL66). The main objective of the Load Line Convention is to make provision for the assignment of a ship’s freeboard. This limits the draught to which a ship may be loaded, ensures adequate stability and avoids excessive stress on the ship’s hull. The Convention also specifies external weathertight and watertight integrity requirements, all designed to assist in ensuring the safety of a ship in rough weather conditions. The regulations also take into account the potential hazards present in different zones and different seasons around the world.
• The International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 178 (STCW 78), as amended. The purpose of this convention is to prescribe, as its title suggests, standards for the training and certification of seafarers. In 1995, a major revision added the objective of achieving consistency in standards across the world by setting standards for training institutions and requiring Governments to demonstrate that they have the administrative, training and certification resources necessary to implement the Convention.
• The International Convention for Preventing Collisions at Sea, 1972, (COLREG 72), as amended. This Convention details the requirements to enable ships to navigate safely in the proximity of other ships without approaching too close to each other. It is often described as the ‘highway code of the sea’. As well as providing regulations on the lights and shapes vessels must carry and what actions a vessel must take when approaching another it also provides details for the operation of traffic separation schemes.
• The International Convention on Tonnage Measurement of Ships, 1969, (Tonnage 69). The purpose of this convention is to provide an international standard for measuring the volumetric size and earning capacity of ships, essentially for commercial reasons as well as for the application of the various conventions and regulations. The convention provides for gross and nett tonnages. The gross tonnage is a function of the moulded volume of all enclosed spaces of the ship. The nett tonnage is a function of the moulded volume of all cargo spaces of the ship.[3]
Flag States must also take into account the requirements of the United Nations Convention on the Law of the Sea (UNCLOS), which contains a number of responsibilities of a flag State in Part VII - High Seas, Articles 90-98. Article 91 is of particular significance in the requirement for a genuine link between the State and the ship. This term is not defined by the Convention, but has been interpreted as ‘a strong economic tie between nationals of the flag State and the vessel with regard to ownership, management and manning of the ship’.[4] The question of the ‘genuine link’ has arisen in many incidents where substandard ships have caused marine pollution and the owner has not been able to be identified or has ‘walked away from the incident’. This is often a particular problem for a salvor when faced with a possible casualty and is unable to secure any guarantee of being paid.
Article 94 which lists the duties of the flag State also requires a flag State ‘to conform to generally accepted international regulations, procedures and practices’. This has been understood to mean compliance with IMO and International Labour Organization (ILO) conventions and standards. The role of ILO is essentially in the working conditions of seafarers.
Article 217 in Part XII on the Protection and Preservation of the Marine Environment covers enforcement issues by flag States, such as compliance with applicable international rules and standards and action to be taken when a vessel commits a violation of such rules and standards.
The Government of a flag State which has accepted an International Convention is bound by the provisions of the instrument to promulgate laws in relation to the implementation of its provisions through appropriate national legislation e.g. SOLAS 74 Article 1(b). To give effect to this provision means the Government must have a functioning legislative body to enact laws for ships flying its flag and to provide for their subsequent implementation and enforcement.[5]
Following widespread criticism of the continuance of substandard ships being detected through port State control inspections and through a number of maritime accidents causing severe pollution damage it was recognised internationally that a number of administrations were failing in their responsibilities as flag States. Some countries, whilst willing to fully comply with convention requirements for flag States, found they were unable to do so through lack of appropriate resources. Others were simply not willing to fulfil their responsibilities.
In recognising this situation and in an effort to assist flag States in fulfilling their responsibilities the IMO’s 20th Assembly adopted Resolution A. 847. (20) Guidelines to Assist Flag States in the Implementation of IMO Instruments which replaces interim guidelines adopted in 1993. These guidelines are particularly helpful in identifying the role and responsibilities of a flag State.
The Maritime Safety Committee and the Marine Environment Protection Committee thought it would be useful if member governments were able to make their own assessment of their performance as flag States. Such an assessment will demonstrate how well their maritime administration is functioning and identify any deficiencies requiring attention. If assistance is required to address deficiencies, developing countries can seek assistance from IMO’s Technical Cooperation Program.
Accordingly, a Flag State Performance SelfAssessment Form was prepared and promulgated as MSC/Circ.889 and MEPC/Circ.353.
Undertaking a self-assessment and forwarding the completed form to the IMO SecretaryGeneral is voluntary. However, those member governments who send their completed assessments and who seek technical assistance from IMO can signify their wish for confidentiality, in which case their results will remain confidential to key IMO secretariat staff. Otherwise the completed assessments will be sent to the Sub-Committee on Flag State Implementation to build up a data base of flag State performance. Also see IMO Assembly Resolution A. 881 (21) Self-Assessment of Flag State Performance.
The Assembly Resolution and the selfassessment form, which is attached to the above mentioned Circulars, would also be useful as check lists for determining the responsibilities of a flag State and assessing the resources required for an Administration contemplating ratifying the above-listed Conventions.
A significant achievement in recent years towards reducing the number of ships being managed and operated in a ‘substandard manner’ has been the adoption of the mandatory ISM Code through a new Chapter IX to SOLAS ‘74. The ISM Code provides an international standard for the safe management of ships and for pollution prevention.
The ISM Code was introduced to provide those both ashore and at sea responsible for the operation of ships with a framework for the proper development, implementation and assessment of safety and pollution prevention management in accordance with good management principles.
The ISM Code establishes the following safety management objectives:
• to provide for safe practices in ship operation and a safe working environment;
• to establish safeguards against all identified risks;
• to continuously improve safety management skills of personnel, including preparing for emergencies.
The two essential components of the ISM Code are firstly: the responsibility placed firmly on the shipping company as shipowner (in the case of bareboat charters this falls on the ship manager), and secondly, the requirement for a safety management system documenting a range of safety and environment protection policies and procedures.
The ISM Code entered into force on 1 July 1998 for passenger ships, oil and chemical tankers, bulk carriers and cargo high-speed craft of 500 gross tonnage and above. It will apply to other cargo ships and mobile offshore drilling units of 500 gross tonnage and above not later than 1 July 2002.
For more information see IMO Assembly Resolution A. 880 (21) Implementation of the ISM Code by 1 July 2002.
Most countries today use classification societies to assist them in their role as a flag State. Some rely on them almost totally while others use them to a limited extent. The most important element for a government agency using a classification society in its flag State responsibilities is to ensure a system is in place for auditing the work done by the classification society on behalf of government. It is recommended flag States seek guidance from the International Association of Classification Societies (IACS) for more information on the services provided by classification societies. See their website at www.iacs.org.uk. Also see IMO Resolution A. 739 (18), Guidelines for the Authorization of Organizations Acting on Behalf of the Administration, adopted in November 1993.
The only statutory responsibility for a port State comes from MARPOL 73/78 in regard to the requirements for Governments party to the Convention to provide ship waste reception facilities for a range of substances. The requirements can be found in Annex 1 (Oil) Regulation 12; Annex II (Chemicals) Regulation 7; Annex IV (not yet in force) (Sewage) Regulation 10; and Annex V (Garbage) Regulation 7.
There are several requirements on port States in a procedural sense both in UNCLOS and in IMO’s SOLAS ‘74 and MARPOL ‘73/78 Conventions. These requirements are only operative when a port State elects to take a particular course of action where it has an option to do so and which is provided for in the Convention. Examples include a number of issues in the context of UNCLOS Part XII (Protection of the Marine Environment) regarding investigations of pollution incidents.
Similarly SOLAS ‘74 (Regulations 1/19 and XI/4) and MARPOL ‘73/78 (Article 6) make provision for port State control regimes to inspect foreign vessels entering a port and specify the procedural aspects that must be complied with by inspecting surveyors, particularly when the need arises to detain a ship.
UNCLOS provides wide powers and responsibilities to coastal States in a range of different areas. However in respect of the protection and preservation of the marine environment while there are many relevant Articles the most significant are Part V dealing with Exclusive Economic Zones at Article 56 and Part XII Article 220. These articles extend powers, particularly with enforcement (the boarding and detention of vessels) previously only available in the Territorial Sea.
A significant issue for coastal states to consider is what protection they require in the form of financial compensation and payment of clean up costs following an oil spill. There are currently two regimes in place, one which covers oil spills from oil tankers which has a mandatory component and a non mandatory regime for ships other than oil tankers.
Compensation for pollution damage caused by spills from oil tankers is governed by an international regime established under the auspices of the International Maritime Organization (IMO). The framework for the regime was originally the 1969 International Convention on Civil Liability for Oil Pollution Damage (1969 Civil Liability Convention) and the 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (1971 Fund Convention). This ‘old’ regime was amended in 1992 by two Protocols, and the amended Conventions are known as the 1992 Civil Liability Convention (CLC) and the 1992 Fund Convention. The 1992 Conventions entered into force on 30 May 1996.
Since the 1969 Civil Liability Convention and the 1971 Fund Convention have been denounced by a number of States and will lose importance, we only need consider the ‘new regime’, i.e. the 1992 Civil Liability Convention and the 1992 Fund Convention.
However it is important that those countries which are still State Parties to the ‘old’ regime should move to the new Conventions. A list of countries in the old and new regimes is given at the end of this section.
The 1992 Civil Liability Convention governs the liability of shipowners for oil pollution damage. The Convention lays down the principle of strict liability for shipowners and creates a system of compulsory liability insurance. The shipowner is normally entitled to limit his liability to an amount which is linked to the tonnage of the ship.
The 1992 Fund Convention, which is supplementary to the 1992 Civil Liability Convention, establishes a regime for compensating victims when the compensation under the applicable Civil Liability Convention is inadequate.
The 1992 CLC covers pollution damage suffered in the territorial sea or exclusive economic zone (EEZ) or equivalent area of a State Party to the Convention. The flag State of the tanker and the nationality of the shipowner are irrelevant for determining the scope of application. Spills of cargo or bunker oil from oil tankers whether laden or unladen are covered.
Damage caused by non-persistent oils such gasoline, light diesel oil, or kerosene do not fall within the scope of the convention.
Funds for meeting claims under the CLC Convention come from compulsory insurance paid by all oil tankers carrying more than 2000 tonnes of persistent oil. However shipowners can in some extreme cases be exempt from liability and can limit their liability under the CLC Convention, which may result in insufficient compensation to meet actual costs.
The 1992 Fund Convention pays compensation to those suffering oil pollution damage which occurs in a State which is Party to the 1992 Fund Convention and who do not get full compensation under the 1992 CLC. This may arise either because a shipowner is exempt under the CLC, insufficient ship owner or insurance funds are available, or the amount exceeds the shipowner’s liability.
The 1992 Fund has a limit to which it will compensate any one incident. This is based on 135 Special Drawing Rights which is approximately equivalent to US$181 million and includes the sum paid by the shipowner or insured under the 1992 CLC.
The 1992 Fund is financed by contributions levied on any person in a State which is Party to the 1992 Fund who has received in one calendar year more than 150 000 tonnes of crude oil and heavy oil.
As at 10 April 2000, 59 States were Parties to the 1992 Civil Liability Convention, and 55 States were Parties to the 1992 Fund Convention.
However there are 32 States still Parties to the ‘old’ regime of the 1969 CLC Convention and the 1971 Fund Convention. Of these the following are from the Asia/Pacific region: Brunei Darussalam, Malaysia, Papua New Guinea, and Tuvalu. Only one country, Indonesia, is still party to the 1969 CLC Convention but not a Party to the 1971 Fund Convention.
State Parties to both the 1992 Protocol to the CLC Convention and the 1992 Fund Convention include Australia, Canada, China Hong Kong, Japan, Mexico, New Zealand, Philippines, Republic of Korea, Singapore, Vanuatu.
State Parties, which have recently denounced their Membership of the old regime and will soon be Parties to the new regime, include Fiji and Tonga.[6]
Currently there is no mandatory insurance scheme in place to pay compensation in the event of oil pollution damage from bunker spills from ships other than oil tankers. Those seeking compensation for clean-up costs or damage resulting from a bunker spill must rely firstly on the vessel having voluntary Protection and Liability Insurance (P&I), and secondly, that the amount required is less than the amount to which the shipowner can limit liability under the 1976 London Convention on the Limitation of Liability for Maritime Claims (LLMC1976).
This situation should change in the next few years. A Diplomatic Conference will be held in London early next year to consider for adoption a new International Convention on Civil Liability for Bunker Oil Pollution Damage. This Convention, when it comes into force, will require compulsory insurance to be paid by shipowners to cover pollution damage compensation claims in much the same way as the CLC provides cover for oil tankers carrying oil as cargo or bunkers. Shipowners will still be entitled to limit their liability using the LLMC 1976 and may be exempted as with CLC. In a step into current technology the new Convention will permit the use of electronic certificates to prove insurance cover.
For more information on the draft ‘Bunkers Convention’ see the Report of the Legal Committee on the Work of its Eighty-First Session LEG 81/11 and Compensation for Pollution From Ships’ Bunkers LEG 81/4.
As mentioned above, there have been ongoing criticisms for a number of years of poor performance by some flag States not fulfilling their responsibilities in ensuring ships under their flag operate in accordance with the international conventions.
Because some flag States have not taken their role seriously the situation has led to port States having to set up regimes to inspect and control foreign ships visiting their ports.
The importance of port State control as a crucial link in the safety responsibility chain has been widely recognised by a large number of countries which have also established several regional arrangements. The following is the list of existing Memoranda of Understanding on port State control:
• Paris MOU (Europe and North America region)
• Acuerdo de Vina del Mar (Latin American region)
• Tokyo MOU (Asia - Pacific region)
• Caribbean MOU
• Mediterranean MOU
• Indian Ocean MOU
• Black Sea MOU
• West Africa MOU
The primary purpose of regional agreements is to exchange information between the member countries on ship inspections thus avoiding duplication and enabling a higher inspection rate than could be achieved if conducted by individual countries working on their own. The agreements also provide training, exchange of inspectors, the holding of seminars, and the harmonisation of procedures and practices relating to inspection, rectification of faults and detentions.
The Tokyo MOU, which has been in existence since December 1993 with its secretariat established in Tokyo on 15 March 1994, currently consists of seventeen maritime authorities, which are listed in the background paper by Chris Chung. At the most recent meeting of the Port State Control Committee in Singapore in February 2000 the following new initiatives were noted or agreed:
• the introduction of a new ship targeting system so as to eliminate ships known to be of good quality and require inspection only of ships more likely not to meet the required standards
• the increase of the regional inspection target rate from 50% to 75%
• progress in the development and implementation of the Asia-Pacific Computerised Information System (APCIS) which is operated and administered by the Maritime Administration of the Russian Federation
• the need to enter a data exchange agreement with Equasis so as to extend this new ship information database to all Tokyo MOU members
• inter-regional cooperation and synergy with other PSC regimes
Mr Chen Tze Penn, Director-General of the Singapore Marine & Port Authority, opened the meeting of the Tokyo MOU Committee. In his address he noted that operators of substandard ships must be made to realise that even if they could escape flag State detection, they would not be able to ply undetected by the 7[7] regional PSC regimes in operation around the world. This would force these operators to weigh the costs and benefits of compliance with inter-national conventions against detention under the PSC regimes.
More information can be obtained from two IMO Resolutions A. 787 (19) Procedures for Port State Control and A. 882 (21) Amendments to the Procedures for Port State Control.
The international conventions adopted at IMO are primarily designed for the larger commercial ships on international voyages. Few internationally-consistent regulations are available for small commercial ships below the SOLAS threshold tonnage that trade internationally or those that trade between ports of the same country.
Following requests by a number of countries IMO developed basic ‘model’ regulations which had their origins in the international conventions but modified so as to be applicable to small ships. IMO convened two seminars in Asia in 1995 and 1996 to test their suitability and decide methods for their implementation.
In the following year countries in the Caribbean further developed the regulations to meet their particular requirements.
In 1998 IMO facilitated a meeting of Pacific Island Countries (PIC) with the aim of determining the applicability and effectiveness of the Asian regulations to small vessels trading in the Pacific. Also in 1998 the IMO and the Economic and Social Commission for Asia and the Pacific (ESCAP) held a seminar to review progress of implementation of the regulations into the law of various Asian countries.
While there has been some reluctance by the countries in Asia to implementing Safety Regulations for Non-Convention Sized Ships progress in the PICs has been much better.
Following the 1998 Pacific Islands seminar where 13 PICs agreed to adapt the Asian and Caribbean regulations, IMO has prepared a set of draft regulations which have been circulated for comment. At the most recent seminar earlier this year agreement was reached on a model text and it will now be left to individual PICs to implement. It is understood that some PICs will also adapt the regulations to their fishing vessels.[8]
Amongst several difficulties which arise when introducing new legal measures are the key issues of financial and legal constraints, and putting in place effective administrative and enforcement measures. Achieving sufficient priority in the Parliamentary process when other more pressing needs exist can cause further delays.
The difficulties that not only governments but also the maritime industry experience in implementation and compliance with international conventions dealing with safety and marine environment protection are often voiced at conferences and workshops such as this. Let’s look at some of them.
Firstly, the laborious and time-consuming methodology used by some administrations to incorporate international conventions and regulations into domestic law is a major cause of concern to those in the shipping industry involved in building and operating ships. Delays and uncertainties regarding future regulatory requirements can add a significant cost burden to the industry.
Clearly the method of incorporating inter-national conventions into domestic legislation will vary from country to country and will largely depend on the administrative legal system operating in each country.
In those countries where lengthy delays occur, the government must take steps to overcome this deficiency in the future.
One attempt to assist in this matter is a study being undertaken by the Republic of Korea on behalf of the Asia Pacific Economic Co-operation (APEC) Transport Working Group. The study will examine the situation in a number of APEC Economies and provide a comparison of the various legal frameworks and methods used to implement international maritime treaties into domestic law.[9]
This is part of a wider study designed also to identify optimum maritime administrative structures, and one which will provide options to governments to select the preferred legal framework suitable to their particular economy. This program is part of the current ‘safer shipping’ policy for the APEC region.
A key principle adopted by several administrations is to delegate maritime safety and marine environmental legislation, particularly the subordinate ‘technical regulations’, as far as the parliamentary process or legal system will allow. The particular international instrument should be called up in the domestic legislation by its title there should be no requirement to rewrite the international instrument as part of domestic legislation. This will only cause further delays in the future when amendments are made.
Delegation of maritime safety and environmental protection legislation to the senior levels of the bureaucracy can work very well. However, in a democratic system there needs to be the opportunity for the parliament or whichever body or authority heads the country’s legal system, to review regulations before they enter into force. This can be achieved by ‘placing’ the regulation before parliament, debate only taking place when requested by a member of parliament.
It may be appropriate for parliament to pass the parent maritime act but not the detailed technical regulations and amendments to technical regulations. These should be authorised and promulgated by the head of the maritime agency through some system of administrative law such as marine orders.
IMO, through its the Integrated Technical Cooperation Program, provides assistance to developing nations wishing to introduce international conventions into domestic legislation.
The South Pacific Regional Environment Programme (SPREP), in its efforts to assist Pacific Island countries to implement IMO Conventions, has run a number of model legal courses and has recently completed a significant project which produced model legislation for use as a template by Pacific Island countries. IMO has particularly welcomed the outcome of the project and is likely to make it available to other regions of the world. SPREP is also publishing the Pacific Islands Handbook on International and Regional Marine Pollution Conventions. The handbook is to be distributed to marine, environmental, marine resources and legal administrations and the shipping industry in all SPREP member countries free of charge.[10]
Knowing exactly what IMO instruments are available and what they contain can be a time consuming and complex task.
As mentioned above some governments, as well as owners, will largely leave a lot of the work of ensuring compliance with the international instruments to their classification society, while others will wish to undertake this role themselves and be fully conversant with all environment and safety requirements.
Firstly, it is necessary to identify and then obtain the various international regulatory instruments e.g. SOLAS 74, MARPOL 73/78 etc., together with the associated codes as well as other sources of information relevant to your requirements. A list can be obtained from the IMO Publications Catalogue, published by IMO on an annual basis. The catalogue is also available on the IMO website at www.imo.org/imo/pubs/pubstart.
The 1999/2000 edition of the catalogue contains a comprehensive listing of 250 titles in English, consisting of IMO conventions, codes, regulations, recommendations, guidelines etc. some of the key conventions and codes are available in electronic form, such as a CD-ROM or diskette.
Having obtained the base documents, keeping up to date on the numerous amendments agreed by the IMO technical committees again can be quite challenging and time-consuming.
One of the most significant advances in recent years in providing the shipping industry with up to date information on key IMO conventions, codes of practice, IMO Resolutions and IMO Circulars is the IMO-Vega Database. Not only does the IMO-Vega Database provide all the essential information, it is updated twice a year so as to keep the information as current as possible.
The most recent up-date, Version 6.0 issued in October 1999, is available on CD-ROM from IMO Publications. It provides details of amendments to MARPOL and SOLAS, MEPC/MSC Resolutions and MEPC/MSC Circulars. MEPC information is current to MEPC 42 which, met in December 1998 while MSC information is current to MSC 70 which met in December 1998.
The IMO-Vega Database is a joint publication between IMO and Det Norske Veritas. The essential components of the IMO-Vega Database include:
• SOLAS 1974/78/88 as amended
• Load Line 1966/88
• MARPOL 73/78 as amended
• International Bulk Chemical Code (IBC Code)
• International Gas Carrier Code
• Tonnage Convention 1969
• COLREG 1972 as amended
• IMO Resolutions
• IMO Circulars
• ILO Instruments
• MODU Code
• STCW 78/95
• BC Code
• HSC Code
• Implementation Protocols
• A range of databases
IMO will also be releasing MARPOL 73/78 (including all six Annexes) on CD-ROM and SOLAS 74 on CD-ROM in the next few months. Both versions will be the consolidated text incorporating all amendments in force at the end of 1999.
Other classification societies publish products of a similar nature, for example Germanischer Lloyd provides information on IMO current legislation in its IMO Pilot 1999/2000. This is advertised on the Germanischer Lloyd website, at www.germanlloyd.org. The website advises:
the IMO Pilot 1999/2000 provides a compact overview on current shipping legislation aimed at making it easier for yards, shipping companies, administrations and other parties to incorporate new IMO regulations and guidelines in their work and thereby to prevent delays and unnecessary costs.
According to Germanischer Lloyd the IMO Pilot 1999/2000 summarises all the current and expected regulations of relevance to the shipping world.
The IMO website at www.imo.org provides a range of other essential information aimed at keeping the shipping industry up to-date as well as providing researchers with valuable assistance and links to other websites. Some of the main features of the IMO website include:
• IMO Conventions - a full list of all IMO conventions, including entry-into-force dates; which countries have ratified which conventions; adoption, ratification and amendment procedures for international conventions.
• IMO Briefings - this section contains the latest media briefings issued by IMO. These often contain information about amendments to conventions approved by MEPC and MSC, and when amendments are about to enter into force. Major issues under consideration by MEPC and MSC are also highlighted before meetings of the Committees as are the main decisions taken by MEPC and MSC after the meetings.
• IMO Meetings - a list of IMO Committee and Sub-Committee meetings together with hyperlinks to summaries of meetings; decisions taken; and, for MEPC and MSC meetings, amendments, circulars and resolutions approved.
• IMO Circulars - a limited list at this stage which is currently being expanded to include most IMO Circulars.
• IMO Library Information Services - this is a comprehensive section where enquiries can be made by email. A detailed Current Awareness Bulletin is available containing titles of articles published in the legal and technical press. It is published monthly and to-date covers 40,000 citations, titles of articles and brief abstracts which are reproduced as they appear in journals and newspapers. Of particular interest is the section on ‘Pollution’. The total listing goes back for the last two and a half years. A bibliography covers a wide range of maritime literature, book reviews, and papers written by IMO Secretariat staff which often refer to issues under consideration as future legislation.
Other sections of the IMO website include IMO News, Focus On IMO and speeches by the Secretary-General, all provide relevant information of current and impending legislation. While some areas duplicate others, with careful use the IMO website is a valuable tool.
Another valuable source of IMO information is the IMODocs website, access to which is only available through IMO member governments or NGOs with consultative status via a country code and password. IMODocs provides on line IMO documents for all IMO meetings, including Assembly, Council, the main committees and all sub-committee meetings. Documents are held on the website for about a two-year period. Also included is a comprehensive section containing IMO Circulars. IMO is considering putting past documents on a CD-ROM.
IMO manages a comprehensive technical cooperation program to assist developing countries by contributing to the enhancement of their capacity to comply with international conventions relating to maritime safety and the prevention and control of marine pollution. Priority is given to technical assistance programs, which focus on human resource development and institutional capacity-building.[11]
The ITCP is based on a tripartite partnership between developing countries, resource providers and IMO. The Technical Cooperation (TC) Fund is allocated limited funding from the IMO budget amounting to about US$5 million per year. This is intended as a catalyst for implementing the core activities of the ITCP and for encouraging co-financing arrangements or partnerships with government, industry and other international funding agencies.
Key objectives and priorities for the 2000/2001 biennium have been established under three broad headings:
− fostering implementation of Conventions with emphasis on STCW and the ISM Code;
− strengthening maritime Administration in respect of examination and certification;
− establishing/strengthening Maritime Administrations to enable them to discharge their responsibilities as flag and port States;
− supporting maritime training institutions and fellowship programs;
− strengthening capacity to prevent, control, combat and mitigate marine pollution;
− assisting in the revision and updating of national maritime legislation.
− fostering regional co-operation networks for the implementation of IMO instruments, including emphasis on global coverage of port State control;
− maximising regional co-operation in the protection of the marine environment;
− assisting signatories to MARPOL 73/78 in implementing their obligations with respect to, inter alia, provision of reception facilities and waste manage-ment;
− implementing the OPRC Convention and the new Protocol covering chemicals;
− implementing a legal instrument for the phasing out of the use of organotin compounds which act as biocides in anti-fouling systems;
− implementing a legally-binding regime for ballast water management.
− focusing on achieving sustainable impact at the regional level through the delivery of pilot schemes or demonstration site projects
− using pilot schemes as proven successes or as blueprint projects which can be replicated as ‘best practice’ in other regions and also generate additional donor funding.[12]
Program building is to a large extent dependent on subject matter put forward by the various IMO technical Committees (MSC, MEPC, Legal and FAL), requests from recipient developing countries and regions, and donor countries and organisations.
For more information on IMO’s Technical Cooperation see Assembly Resolution A. 873 (20): Technical cooperation as a means of promoting the acceptance and implementation of IMO Instruments.
In today’s world, funding for the range of services traditionally provided by government is changing to the ‘user pays’ principle, through a range of cost recovery mechanisms. An increasing number of government agencies responsible for maritime safety and environmental protection services around the world no longer receive their funding from government, through tax payers, but by levies on ships visiting their ports.
In Australia, for example, there are three levies. Firstly, the Marine Navigation Levy provides funds for the establishment and ongoing maintenance of marine navigational services. Previously the levy was referred to as ‘light dues’. The Act, which establishes the Marine Navigation Levy, imposes a quarterly levy on sea-going ships, based on gross tonnage. A sliding scale is used, with the rate per ton decreasing at the higher tonnages. A number of exemptions are provided, e.g. for small non-commercial ships, fishing vessels, small sailing ships and vessels used for religious missionary services. In Australia this levy collects about $26.9 million per year.
Secondly, the Regulatory Functions Levy is used to fund a range of ship safety related functions including drafting and promulgating maritime safety and environmental legislation, port State control, inspections of tanker and bulk carrier cargo operations. activities directed at auditing functions (i.e. classification societies working on behalf of government), seagoing qualification work e.g. standard setting, issuing certificates and auditing maritime colleges, participation in international forums e.g. IMO, ILO etc. This levy collects $16.1 million.
Thirdly, the Protection of the Sea Levy funds the supply and maintenance of equipment and personnel training for a national capability to respond to incidents of pollution of the sea by oil and other noxious and hazardous substances. This levy collects $3.6 million.
Funding for search and rescue, maritime safety communications and education, which amounts to about $16.4 million, is paid by the Government from tax payer sources.
Australia as a single country has a geographical advantage in this regard in that the vast majority of ships passing along the Australian coastline visit at least one Australian port. Obviously some go on to New Zealand without calling at an Australian port but they would be very few. Also the import/export demand is sufficiently high to generate sufficient traffic that the levy per ship is not over burdensome.
It may, be more suitable in other areas of the Asia-Pacific to consider a regional approach with a central levy collecting system which would allocate funds to groups of smaller countries. This would be beneficial in those areas where establishing a single country system would be costly and may not generate sufficient revenue because of low port usage rates.
Within the APEC Transport Working Group a number of maritime safety and marine environmental initiatives have and are being undertaken to assist member economies. The projects are undertaken under the auspices of the Experts Group on Maritime Safety (EGMS) set up by APEC Transport Ministers in 1997.
The role of the EGMS is to identify marine safety and marine environment problems in the APEC region and propose recommendations for improvement. A key APEC principle is that its work emphasises cooperation between and amongst member economies. In setting up this group Ministers made it very clear that in undertaking work and making recommendations it must avoid duplication of work undertaken by other international government and nongovernment organisations.
The most recently completed project was a study titled ‘Safer Shipping in the Asia Pacific Region’ conducted by the Asia Pacific Maritime Institute. The study had three objectives:
• Identify existing mechanisms or practices used by APEC governments and maritime industries to improve the safety of shipping in the region
• Consider the effectiveness of the mechanisms identified
• Recognise innovative practices used within organisations to combat the incidence of substandard shipping in the region.
The study found seven mechanisms that contribute to improving safe shipping in the Asia Pacific region:
(i) port State control
(ii) ship vetting
(iii) ISM Code implementation
(iv) industry self-regulation
(v) government/industry partnerships
(vi) regional approach and a stronger Asia/Pacific voice
(vii) media coverage and information exchange.
The study report discusses a number of interrelated implementation problems that need to be resolved to make the above mechanisms truly effective.[13]
Other APEC maritime safety initiatives included a seafarer training project to assess the extent and type of training required to upgrade seafarer training in the Philippines and Indonesia to meet the revised STCW Convention.
The Philippines completed a project for APEC in 1998 which examined regional arrangements for preparedness and response to oil spills in the APEC region. The report noted that there were several regional arrangements in existence which included seven bilateral arrangements involving the following countries: Australia, New Zealand, Indonesia, Papua New Guinea, Japan, USA, Canada, Mexico, Brunei Darussalam and Malaysia.
Two trilateral arrangements exist between Indonesia, Malaysia, Philippines and another between Indonesia, Malaysia, Singapore.
The most significant agreement in the region is the ASEAN Oil Spill Response Action Plan (OSRAP) established in 1993 following the principles of the Oil Pollution Response and Cooperation Convention (OPRC) 1990.
The Northwest Pacific Action Plan (NOWPAP) is another regional plan, this time under the United Nations Environment Programme (UNEP) involving Japan, People’s Republic of China, the Republic of Korea, the Democratic People’s Republic of Korea and the Russian Federation.[14]
The PACOL Strategy developed by SPREP is aimed specifically at addressing ship-sourced marine pollution in the Pacific Islands region through assisting countries to become signatories to the IMO Convention and the various other conventions that deal with marine pollution. The very comprehensive strategy and work plan covers a number of wide ranging issues which include:
• completion of a marine pollution risk assessment for the region
• development of a regional marine spill contingency plan
• annual PACOL regional workshops in marine spill response
• establishment of a regional marine pollution surveillance system
• marine pollution education and awareness campaigns
• marine pollution legislation for Pacific Island countries
• improving ships’ waste management in Pacific Island countries.
Funding for this programme has been received from The Commonwealth Secretariat (funding for the position of Marine Pollution Adviser), the Canadian International Development Agency, and the IMO Integrated Technical Cooperation Programme.[15]
The Regional Programme for the Prevention and Management of Marine Pollution in the East Asian Seas was implemented in 1994. The programme is a joint response by IMO, the United Nations Development Programme (UNDP) and the Global Environment Facility (GEF) to a request from countries in East Asia to abate and manage increasing marine pollution in the East Asian Seas.
The programme’s overall objective is to support the efforts of eleven participating governments (Brunei Darussalam, Cambodia, People’s Re-public of China, Democratic People’s Republic of Korea, Indonesia, Malaysia, Philippines, Republic of Korea, Singapore, Thailand, and Vietnam.
This has been a very successful multi-million dollar project covering a wide range of issues and providing assistance to a large number of people. Its primary approach in addressing marine pollution both from land and at sea has been through a system of Integrated Coastal Management (ICM) establishing two demon-stration sites with their own institutional frame-works, so as to ensure ongoing sustainability beyond the life of each demonstration project.
One demonstration site at Xiamen in the People’s Republic of China was used to demonstrate the application of ICM, including policy management and technological inter-ventions necessary to mitigate marine pollution arising from rapid economic development. The other site, Batangas Bay in the Philippines, was used to illustrate pollution prevention through cooperation and strong partnerships among non- government organisations, industries and local government.[16]
Other programme highlights have included:
• Risk assessment and management in the Malacca Straits
• Ratification of international conventions in the East Asian seas region
• Marine pollution monitoring
• Establishing sustainable programme financing
• Development of Geographic Information System (GIS)
• Information dissemination
• Capacity building as a key contributor to programme success
• Training in a range of ICM activities
The Role of a flag State is a demanding one, however there are guidance documents available and IMO will assist where ever it can with advice and where funding allows through its Technical Cooperation Programme.
More emphasis needs to be put on flag States performing their role and undertaking the responsibilities their Governments have accepted by becoming a flag State. Coastal States which are not State Parties to the oil pollution compensation schemes need to give serious consideration to their likely financial needs in the event of a major oil tanker pollution incident.
There are a number of regional arrangements in the Asia Pacific region all contributing to the prevention of marine pollution.
[1] Paper presented at the Prevention of Marine Pollution in the Asia-Pacific Regional Workshop, Townsville, 7-12 May 2000.
[2] Chairman, Marine Environment Protection Committee, International Maritime Organization.
[3] IMO 2000, Maritime Safety Conventions, IMO, London. Available at www.imo.org/imo/convent/ safety.htm and www.imo.org/imo/convent/others.htm.
[4] Bernaert, A. 1988, Bernaert’s Guide to the 1982 United Nations Convention on the Law of the Sea, Fairplay Publications, Coulsdon, p. 44.
[5] IMO 1998, Self-Assessment of Flag State Performance, IMO, London, in MSC/Circ. 889.
[6] IOPC 2000, IOPC Website: www.iopcfund.org/ gennote.htm.
[7] Since the Tokyo MOU meeting in Singapore the West Africa MOU was signed bringing the total to regimes to 8.
[8] Williams, I. M. 2000, ‘The New Safety Regulations for Small Ships in Asia and the Pacific’, in Sea Australia 2000 Conference, Sydney.
[9] APEC Transport Working Group Website: www.apectptwg.org.au (see Expert/Project Groups, Maritime Safety Experts Group - New Project Proposal.
[10] SPREP 1999, Pacific Ocean Pollution Prevention Programme 1999 End of year Status Report.
[11] IMO 1998, Technical Co-operation Policies and Strategies for 2000-2001, IMO, London, in TC 45/9.
[12] ibid., p. 13.
[13] Hawkins, Dr. J. 1999, Safer Shipping in the Asia Pacific Region Project (Phase I): Final Report, APEC Transport Working Group Website: www.apectptwg. org.au.
[14] APEC 1998, Regional Cooperation in Oil Spills Preparedness and Response Arrangements Final Report, Philippines, www.apeetptwg.org.au.
[15] SPREP 1999, Pacific Ocean Pollution Prevention Programme: Strategy and Workplan, Apia, Samoa: SPREP, 1999.
[16] IMO 2000, Fighting pollution in the East Asian Seas, IMO Website at www.imo.org/news/3&497/drchua2. htm, London.
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