Introduction
The International Maritime Organisation (IMO), a specialized agency of the United Nations, is tasked with facilitating cooperation among governments to prevent and control marine pollution from vessels Originally established as the Intergovernmental Maritime Consultative Organisation (IMCO), it was renamed IMO in 1982 The organisation is responsible for drafting legal instruments and promoting technical cooperation to protect the marine environment This book explores IMO's role in addressing marine pollution, particularly focusing on the north-south tensions related to pollution prevention strategies.
Controlling marine pollution is a complex challenge that has resulted in numerous international conventions established by the International Maritime Organization (IMO) While IMO regulations primarily focus on preventing pollution from vessels, there is an increasing tendency to broadly interpret what constitutes 'pollution of the marine environment from vessels.' For instance, the disposal of waste and other materials is not classified as pollution generated by ships.
1 Convention on the International Maritime Organization, opened for signature 6 March 1948, article 1(a), 289 UNTS 48 (entered into force 17 March 1958) (hereinafter the IMO Convention
The IMCO Convention of 1948 has undergone significant amendments, leading to the renaming of the Intergovernmental Maritime Consultative Organization (IMCO) to the International Maritime Organization (IMO) This change was formalized through resolutions A.358 (IX) on November 14, 1975, and A.371 (X) on November 9, 1977, which also updated the title of the Convention accordingly For more information, you can refer to the Convention on the International Maritime Organization [here](https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XII-1&chapter=12&lang=en).
2 IMO Convention, article 2. © Springer International Publishing Switzerland 2015
Md S Karim, Prevention of Pollution of the Marine Environment from Vessels,
In a strict sense, while ships are primarily designed for maritime activities, they can also be utilized for disposing of land-based waste into the sea The organization has broadened its focus to include the ship-breaking industry, which operates on land Nevertheless, all legal instruments established by the International Maritime Organization (IMO) are interconnected with maritime operations in various aspects.
The gradual expansion of the International Maritime Organization's (IMO) focus on environmental pollution has sparked significant debate over its mandate and competence Recently, the Marine Environment Protection Committee (MEPC) adopted mandatory energy efficiency measures for international shipping, marking the first global legal instrument aimed at reducing greenhouse gas (GHG) emissions in this sector Central to the discussions was the conflict between the principle of Common But Differentiated Responsibilities (CBDR) and the IMO's policy of equal treatment, with developing countries arguing that CBDR is fundamental to international climate law They contend that imposing uniform responsibilities on all nations, regardless of economic status, undermines the United Nations Framework Convention on Climate Change and its Kyoto Protocol The adoption of this new instrument was partly driven by the European Union's threat of unilateral action if no agreement was reached, highlighting the lack of consensus within the MEPC This situation poses future challenges, as some countries may opt out of the mandatory measures, raising questions about the IMO's authority over GHG emissions reduction The growing divide between developed and developing nations could significantly impact the effectiveness of IMO's environmental legal instruments.
The International Maritime Organization (IMO) is primarily influenced by developed nations with significant shipping interests To enhance participation, it is crucial to implement various institutional and procedural reforms Greater emphasis should be placed on the implementation of existing treaties rather than solely on the creation of new ones, necessitating the allocation of additional resources for effective enforcement This approach is vital for achieving global compliance with international marine environmental standards.
In negotiating and implementing international legal instruments for the prevention and control of vessel-source marine pollution, it is crucial to adequately address the concerns of the Global South.
This book explores the International Maritime Organization's (IMO) role in promoting and implementing international legal instruments for marine environment protection While various studies have addressed aspects of vessel-source marine pollution, there is a lack of comprehensive research focusing on the IMO's critical role and the emerging challenges it faces This work aims to fill that gap in international legal scholarship, particularly highlighting the north-south tensions affecting the IMO Additionally, it provides an overview of the legal instruments established by the IMO and the processes involved in their implementation.
IMO and Marine Pollution from Ships
The United Nations Convention on the Law of the Sea (UNCLOS) defines marine pollution as the introduction of harmful substances or energy into marine environments, including estuaries, which can negatively impact living resources, marine life, human health, and legitimate sea activities like fishing This definition adopts a precautionary approach, contrasting with the one suggested by the Joint Group of Experts on the Scientific Aspects of Marine Pollution (GESAMP), a scientific advisory body comprising experts from various inter-governmental organizations such as IMO, FAO, UNESCO, WMO, WHO, and IAEA.
Pollution, as defined by GESAMP, refers to the introduction of substances or energy into the marine environment by human activities, which leads to harmful effects on living resources, poses risks to human health, disrupts marine activities such as fishing, degrades seawater quality, and diminishes recreational value This definition closely aligns with the one established by UNCLOS, highlighting the significant impact of pollution on marine ecosystems.
10 For example, M ’ Gonigle and Zacher (1979), Cusine and Grant (1980), Tan (2006), Molenaar
12 Joint Group of Experts on the Scientific Aspects of Marine Pollution, Reducing Environmental Impacts of Coastal Aquaculture http://www.fao.org/docrep/006/u3100e/u3100e00.HTM, last accessed on 11 July 2014.
13 On the debate regarding the definition of marine pollution, see generally: Tomczak Jr (1984) andBoehmer-Christiansen (1982). but the UNCLOS definition took a precautionary approach by including the phrase
‘likely to result’ This precautionary approach has a far reaching impact in shaping both international legal and institutional framework for the prevention of pollution of the marine environment.
Marine pollution arises from various sources, including land-based activities, vessels, ocean dumping, and offshore exploration However, the International Maritime Organization (IMO) primarily addresses pollution originating from ships This encompasses numerous types of vessel-source pollution, including oil spills, chemical discharges, garbage, sewage, and air pollution, as well as greenhouse gas emissions, waste dumping, ballast water management, anti-fouling systems, and ship recycling The complexity of these issues has led to the establishment of numerous international legal instruments under the IMO's guidance.
Historical Development of IMO Legal Instruments and
and Institutional Structure for the Prevention of Pollution of the Marine Environment from Vessels
In 1948, an international convention led to the establishment of the International Maritime Consultative Organization (IMCO), which officially came into force in 1958 The inaugural Assembly convened in 1959, but the IMCO Convention did not explicitly address the prevention of vessel-source marine pollution as one of its objectives Instead, the organization's primary focus was on enhancing maritime safety and navigation efficiency, with its competencies initially limited to consultative and advisory functions as outlined in Article 2 of the IMCO Convention.
In 1954, the United Kingdom hosted a conference that led to the adoption of the International Convention for the Prevention of Pollution of the Sea by Oil (OILPOL) Although the Intergovernmental Maritime Consultative Organization (IMCO) had limited authority regarding marine environmental protection, the OILPOL Convention outlined specific responsibilities for IMCO This convention laid the groundwork for subsequent environmental protection measures included in the 1958 Law of the Sea conventions.
14 The term vessel-source marine pollution, pollution form ships and pollution from vessels will be used interchangeably.
15 On IMCO see generally, Simmonds (1963), Johnson (1963), Juda (1977), O ’ Connell (1970), and Greenberg (1976).
16 International Convention for the Prevention of Pollution of the Sea by Oil, opened for signature
12 May 1954, 327 UNTS 3 (entered into force 26 July 1958).
The Convention on Fishing and Conservation of the Living Resources of the High Seas, along with the Convention on the Continental Shelf and the Convention on High Seas, lays the groundwork for international maritime law The concept of rules of reference, which will be explored in the next chapter, traces its origins back to the 1958 Convention on High Seas, highlighting the evolution of legal frameworks governing ocean resources.
The 25th article of the convention mandates that every State implement measures to prevent sea pollution from radioactive waste dumping, considering standards set by competent international organizations Additionally, the 1958 OILPOL Convention's article 24 encourages parties to establish regulations aimed at preventing oil discharge from ships, while taking into account existing treaty provisions related to marine pollution.
The IMCO Convention, effective in 1958 shortly before the OILPOL Convention, enabled the organization to manage the OILPOL Convention from its inception Following its establishment, IMCO amended the OILPOL Convention in 1962 and 1969, reflecting advancements in the international legal framework In response to rising oil pollution concerns, the IMO initiated the Subcommittee on Oil Pollution in 1965 under its Maritime Safety Committee, which was later renamed the Subcommittee on Marine Pollution by the IMO Assembly in 1969.
In 1967, the Torrey Canyon tanker ran aground in the English Channel, spilling 120,000 tons of crude oil and marking the most significant oil pollution incident of its time This disaster highlighted the shortcomings of existing measures to prevent ship-related oil pollution and the lack of adequate compensation mechanisms for affected parties In response, the International Maritime Organization (IMO) developed a plan of action addressing the technical and legal issues raised by the incident This led to the IMO Assembly's decision to hold an international conference in 1973 aimed at establishing a robust international convention for preventing ship pollution Additionally, the OILPOL Convention was amended in 1971 to enhance regulatory frameworks.
In the late 1960s and early 1970s, negotiations led to several supplementary conventions addressing interventions in high seas oil pollution incidents, as well as establishing civil liability and compensation mechanisms.
The Convention on Fishing and Conservation of Living Resources of the High Seas, established on April 29, 1958, and effective from March 20, 1966, along with the Convention on the Continental Shelf, also opened for signature on the same date, are significant treaties in international maritime law (Sands, 2003, p 393).
311 (entered into force 10 June 1964); Convention on the High Seas, opened for signature 29 April
1958, 450 UNTS 82 (entered into force 30 September 1962).
18 IMO, MARPOL 73-78: Brief history, http://www.imo.org, last accessed on 14 July 2014.
The international community has established several key conventions to address oil pollution damage, including the 1969 International Convention on Civil Liability for Oil Pollution Damage (CLC), the 1969 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (INTERVENTION), and the 1971 International Convention on the Establishment of an International Fund for Compensation of Oil Pollution Damage (FUND) Additionally, the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter was adopted to safeguard oceans from pollutant dumping.
The International Convention for the Prevention of Pollution from Ships (MARPOL) was adopted by the International Maritime Organization (IMO) in 1973 but initially failed to take effect due to insufficient ratification by member states The rise in pollution incidents involving oil tankers prompted an IMO conference on Tanker Safety and Pollution in 1978, which led to the adoption of a protocol that, along with the original 1973 Convention, formed the MARPOL 73/78 Convention Notably, Article 9 of the MARPOL Convention established that it superseded the OILPOL Convention.
The MARPOL 73/78 Convention stands as the foremost global legal framework aimed at preventing marine pollution from vessels It addresses comprehensive technical aspects and establishes guidelines for the design, construction, and essential equipment needed for pollution prevention The implementation of these obligations relies on a structured system of certifications, inspections, and surveys Additionally, the Convention encourages coastal States to take action, although the language used is somewhat non-mandatory.
23 International Convention on Civil Liability for Oil Pollution Damage, opened for signature
29 November 1969, 973 UNTS 3, (entered into in force 19 June 1976), as amended by the 1976 Protocol to the 1969 Convention, 16 ILM 617 (entered into in force 8 April 1981) (hereinafter CLC 69).
The 24 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution, opened for signature on November 29, 1969, and entered into force on May 6, 1975, aims to address oil pollution incidents at sea This convention was amended by the 1973 Protocol, which extends intervention provisions to cases of marine pollution by substances other than oil, opened for signature on November 2, 1973.
650 (entered into force 30 March 1983) (hereinafter Intervention Convention).
25 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, opened for signature 18 December 1971 1110 UNTS 57 (entered into force
16 October 1978), as amended by the 1976 Protocol to the 1971 Fund Convention, 16 ILM
621 (entered in force 22 November 1994) (ceased to operation 24 May 2002) (hereinafter FUND 71).
26 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, opened for signature 29 December 1972, 11 ILM 1294 (entered into force 30 August 1975).
27 International Convention for the Prevention of Pollution from Ships, opened for signature
The MARPOL 73/78 Convention, established on 2 November 1973 and modified by the 1978 Protocol, was opened for signature on 17 February 1978 and entered into force on 2 October 1983 For the latest version, refer to the MARPOL: Consolidated Edition 2011 published by the IMO in London.
28 Hughes et al (2002), p 628. to provide reception facilities for the disposal of oily wastes, sewage, garbage and other hazardous substances.
The MARPOL 73/78 Convention primarily assigns prescriptive and enforcement jurisdiction to flag States, but allows coastal States to prohibit violations of its requirements within their jurisdiction and impose sanctions The interpretation of "within the jurisdiction" is guided by the prevailing international law at the time of application This provision was included in the Convention due to the inability of States to reach a consensus on coastal jurisdiction during negotiations, leaving the matter open until the adoption of the UNCLOS.
The MARPOL Convention established a certification system requiring most ships engaged in international maritime transport to carry certificates as prima facie evidence of compliance Any country has the authority to inspect these ships while they are voluntarily docked at its port or offshore terminal If there are substantial discrepancies between the ship's condition or equipment and the details on the certificate, the port State can detain the vessel.
Regulations covering the various sources of ship-generated pollution are contained in the six Annexes of the MARPOL and are updated regularly Annexes
Scope and Perspective of the Book
The International Maritime Organization (IMO) has significantly expanded its mandate and activities over the past six decades to prevent marine pollution from ships, evolving from a consultative forum into a leading global institution for environmental law-making This remarkable transformation is rare among modern international organizations, as the IMO now addresses a wide range of marine environmental issues This book aims to critically examine the IMO's legal instruments related to the marine environment, focusing on emerging challenges such as greenhouse gas emissions, shipbreaking, and antifouling.
A thorough analysis of the International Maritime Organization's (IMO) role in safeguarding the marine environment begins with understanding its mandate Chapter 2 of this book delves into this mandate within the framework of the IMO's Constitution and the relevant international laws that govern marine protection Additionally, this chapter provides an overview of the IMO's institutional structure and its law-making processes.
The MARPOL 73/78 Convention is the key legal framework established by the IMO to combat vessel-source marine pollution, and Chapter 3 of this book delves into its details This chapter also outlines the IMO's liability and compensation conventions, along with Particularly Sensitive Sea Areas (PSSAs) and legal instruments addressing oil pollution preparedness and response Additionally, it highlights the broader impacts of international shipping on the marine environment, particularly the introduction of harmful aquatic organisms through ballast water and bio-fouling, which threaten marine biodiversity Chapter 4 will provide an overview of the IMO's legal measures addressing these critical issues.
Chapter 5 of this book focuses on the shipbreaking industry, also known as ship-recycling or ship-dismantling, which is considered highly hazardous The expansion of the International Maritime Organization (IMO) in this sector is crucial, as shipbreaking primarily occurs in a few developing countries The ongoing debate regarding IMO legal instruments reveals a significant divide between member states along the north-south line and emphasizes the importance of the principle of Common but Differentiated Responsibilities (CBDR) in both law-making and implementation Additionally, the chapter will address IMO's role in providing technical assistance in this context.
A pressing issue within the International Maritime Organization (IMO) is the need to reduce greenhouse gas (GHG) emissions from international shipping, which has highlighted the significant north-south divide in the IMO's law-making process, stemming from negotiations under the United Nations Framework Convention on Climate Change (UNFCCC) This topic has sparked vigorous debates between developed and developing nations regarding key aspects such as the principles of non-discrimination and Common But Differentiated Responsibilities (CBDR), the IMO's jurisdiction, and the necessity for technology transfer and technical assistance A critical analysis of these matters in relation to the IMO and climate change will be explored in Chapter 6.
A significant challenge in marine environmental protection efforts is the lack of implementation of IMO legal instruments in developing countries, which undermines the overall effectiveness of IMO marine environmental regimes This issue is closely linked to the need for technical and financial assistance, as discussed in Chapter 7 of this book.
This book shifts the focus from extensively analyzed IMO marine environmental legal instruments, such as the MARPOL 73/78 Convention, to emerging issues like bio-fouling, ship recycling, and the reduction of greenhouse gas emissions in international shipping It emphasizes the gradual evolution of the IMO's institutional framework and the enforcement of its legal instruments, while also addressing the often-ignored perspectives of the global south in discussions surrounding the IMO.
The scientific foundation for marine pollution control is explored by Boehmer-Christiansen (1982) in "Marine Policy," highlighting key strategies for addressing environmental challenges Boyle (1985) examines the legal framework governing marine pollution within the Law of the Sea Convention, emphasizing international legal obligations to protect marine ecosystems Charney (1995) discusses the protective measures for the marine environment established by the 1982 United Nations Convention on the Law of the Sea, underscoring its significance in international environmental law.
Greenberg EVC (1976) IMCO: an environmentalist ’ s perspective Case West Reserve J Int Law 8:131–148
Johnson DHN (1963) IMCO: the first four years (1959–1962) Int Comp Law Q 12:31–55 Juda L (1977) IMCO and the regulation of ocean pollution from ships Int Comp Law Q 26:558– 584
Kimball LA (1995) The law of the sea and marine environmental protection Georgetown Int Environ Law Rev 7:745–748
McConnell ML, Gold E (1991) The modern law of the sea: framework for the protection and preservation of marine environment? Case West Reserve J Int Law 23:83–105
43 United Nations Framework Convention on Climate Change, opened for signature 4 June 1992,
1771 UNTS 107 (entered into force 21 March 1994) (UNFCCC).
O ’ Connell DM (1970) Reflections on Brussels: IMCO and the 1969 pollution conventions Cornell Int Law J 3:161–188
Simmonds KR (1963) The constitution of the maritime safety committee of IMCO Int Comp Law
Tomczak M Jr (1984) Defining marine pollution: a comparison of definitions used by international conventions Mar Policy 8:311–322
The impact of marine pollution is thoroughly examined in "The Impact of Marine Pollution" edited by Cusine DJ and Grant J (1980), published by Croom Helm in London Additionally, Franckx E (2001) explores vessel-source pollution and the jurisdiction of coastal states in his work on the ILA Committee, which addresses marine pollution issues from 1991 to 2000, published by Kluwer Law International in The Hague.
Hughes D, Jewell T, Lowther J, Parpworth N, de Prez P (2002) Environmental law Oxford University Press, Oxford
M ’ Gonigle RM, Zacher MW (1979) Pollution, politics, and international law: tankers at sea. University of California Press, Berkeley
Molenaar EJ (1998) Coastal state jurisdiction over vessel-source pollution Kluwer Law Interna- tional, The Hague
Sands P (2003) Principles of international environmental law Cambridge University Press, Cambridge
Tan AK-J (2006) Vessel-source marine pollution: the law and politics of international regulation. Cambridge University Press, Cambridge
Wang H (2011) Civil liability for marine oil pollution damage: a comparative and economic study of the international, US and the Chinese compensation regime Kluwer Law International, The Hague
Convention on the International Maritime Organization https://treaties.un.org/Pages/ ViewDetails.aspx?src ẳ TREATY&mtdsg_no ẳ XII-1&chapter ẳ 12&lang ẳ en, last accessed on 17 June 2014
The International Maritime Organization (IMO) established the MARPOL 73/78 convention to prevent marine pollution from ships It outlines critical regulations aimed at minimizing environmental damage caused by operational discharges and accidental spills For more detailed information, you can visit the IMO's official website, although access may be limited as of the last checks in July and June 2014.
Joint Group of Experts on the Scientific Aspects of Marine Pollution, Reducing Environmental Impacts of Coastal Aquaculture http://www.fao.org/docrep/006/u3100e/u3100e00.HTM, last accessed on 11 July 2014
Convention on Fishing and Conservation of Living Resources of the High Seas, opened for signature 29 April 1958, 559 UNTS 286 (entered into force 20 March 1966)
Convention on the Continental Shelf, opened for signature 29 April 1958, 499 UNTS 311 (entered into force 10 June 1964)
Convention on the High Seas, opened for signature 29 April 1958, 450 UNTS 82 (entered into force 30 September 1962)
Convention on the International Maritime Organization, opened for signature 6 March 1948,
289 UNTS 48 (entered into force 17 March 1958)
The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, which opened for signature on December 29, 1972, and entered into force on August 30, 1975, aims to mitigate marine pollution Additionally, the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships was opened for signature on September 1, 2009, and, while not yet in force, seeks to promote environmentally responsible ship recycling practices.
International Convention for the Control and Management of Ship ’ s Ballast Water and Sediments (hereinafter BWM Convention), 2004, IMO Doc BWM/ CONF/36 (2004) reprinted in ATNIF
International Convention for the Prevention of Pollution from Ships, opened for signature
2 November 1973, 1340 UNTS 184 as modified by the Protocol of 1978 to the 1973 Convention, opened for signature 17 February 1978, 1341 UNTS 3 (entered into force
2 October 1983) (MARPOL 73/78) For most recent version see MARPOL: Consolidated Edition 2011 (IMO, London, 2011) (hereinafter MARPOL 73/78)
International Convention on Civil Liability for Oil Pollution Damage, opened for signature
29 November 1969, 973 UNTS 3, (entered into in force 19 June 1976), as amended by the
1976 Protocol to the 1969 Convention, 16 ILM 617 (entered into in force 8 April 1981) (hereinafter CLC 69)
International Convention on Oil Pollution Preparedness, Response and Cooperation, opened for signature 30 November 1990, 30 ILM 733 (entered into force 13 May 1995)
International Convention on the Control of Harmful Anti-fouling Systems on Ships 2001, IMO Doc AFS/CONF/26 (5 October 2001) (entered into force 17 September 2008)
International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, opened for signature 18 December 1971 1110 UNTS 57 (entered into force
16 October 1978), as amended by the 1976 Protocol to the 1971 Fund Convention, 16 ILM
621 (entered in force 22 November 1994) (ceased to operation 24 May 2002)
The International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution, opened for signature on November 29, 1969, and entered into force on May 6, 1975, addresses the legal framework for responding to oil pollution incidents at sea This convention was later amended by the 1973 Protocol, which expanded its scope to include marine pollution from substances other than oil, and was opened for signature on November 2, 1973.
United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994)
United Nations Framework Convention on Climate Change, opened for signature 4 June 1992,
1771 UNTS 107 (entered into force 21 March 1994)
United Nations and IMO Documents
Resolution MEPC.203(62), Report of the Marine Environment Protection Committee on Its Sixty- Second Session, ANNEX 19, IMO Doc MEPC 62/24/Add.1 (26 July 2011)
Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas, IMO Doc A24/Res.982 (6 February 2006)
Strategic Plan for the Organization (for the Six-Year Period 2012 to 2017), IMO Doc A27/Res.1037 (20 December 2011)
IMO Institutional Structure and Law-Making Process
Introduction
The International Maritime Organisation (IMO) employs a unique process for the adoption and amendment of international legal instruments aimed at preventing marine pollution from ships, influenced by a diverse range of state and non-state actors Recognized as one of the most successful organizations in crafting international law for marine environmental conservation, the IMO plays a crucial role in addressing vessel-source marine pollution This chapter provides an overview of the IMO's law-making process and its institutional structure.
Section 2.2 examines the diverse state and non-state actors, including Member States, the United Nations, intergovernmental organizations, and international NGOs, that influence the law-making process within the International Maritime Organization (IMO) These stakeholders represent a wide array of interests such as coastal, port, shipping, cargo, international business, security, and environmental concerns The institutional framework and politics of the IMO play a crucial role in this process, as discussed in Section 2.3, which outlines the organization's structure and the functions of its various organs in law-making Furthermore, Section 2.4 emphasizes the distinctive nature of the IMO law-making process, setting the stage for a deeper exploration of specific marine environmental issues in the following chapter.
Md S Karim, Prevention of Pollution of the Marine Environment from Vessels,
Actors in the IMO Law-Making Process
Member States
The International Maritime Organization (IMO) currently has 170 Member States and three Associate Members from various global regions According to the IMO Convention of 1948, all States, including United Nations members, can join the organization by becoming parties to the Convention There is a detailed process for non-United Nations countries to gain membership Additionally, territories within Member States can become Associate Members if the Convention applies to them, as designated by the Member responsible for their international relations or by the United Nations Member States may also be categorized into different groups based on their interests in the organization.
2.2.1.1 Port, Coastal and Flag States
The interests of IMO members often conflict between port or coastal states and flag states, but this binary division is complicated as a country can hold multiple roles simultaneously A state may prioritize one role over the other based on its economic, geographical, and environmental interests For instance, a country with a significant merchant fleet may heavily advocate for the interests of its shipping companies, as revenue from this sector is crucial for national income, especially in the case of 'flags of convenience' (FOC).
1 IMO, Member States, http://www.imo.org/About/Membership/Pages/MemberStates.aspx, last accessed on 14 June 2014.
2 They are: Faroes; Hong Kong, China; and Macao, China Ibid.
3 Convention on the International Maritime Organization, opened for signature 6 March 1948, article 1(a), 289 UNTS 48 (entered into force 17 March 1958) (hereinafter the IMO Convention
1948 or the IMCO Convention 1948), art 4.
As of 2011, approximately 69.7% of the global merchant fleet operates under flags of convenience (FOCs), which are defined as flags from countries that permit the registration of foreign-owned and controlled vessels under favorable conditions Under international law, ship owners have the freedom to select their vessel's flag, allowing each state to establish its own regulations and standards for ship registration This practice is governed by the 1958 Geneva Convention on the High Seas and the United Nations Convention on the Law of the Sea (UNCLOS), specifically articles 91 and 94, which outline the conditions for flag state responsibilities.
The concept of a 'genuine link' between a ship and its flag State remains undefined, leading to ambiguity and varied interpretations among scholars This lack of clarity results in differing conclusions, with many experts asserting that simple administrative actions, like registration, are adequate to establish this 'genuine link.'
There is significant backing for the view that the absence of a 'genuine link' should not be a valid reason to deny a ship's nationality This perspective is reinforced by the International Tribunal for the Law of the Sea (ITLOS) in the M/V “SAIGA” (No 2) case.
Article 94 does not allow a State to deny a ship's right to fly its flag, even if evidence suggests a lack of proper jurisdiction and control by the flag State The Tribunal concluded that the Convention's provisions aim to ensure a genuine link between a ship and its flag State to enhance the flag State's responsibilities, rather than to provide grounds for other States to contest the validity of a ship's registration.
The shortcomings in environmental protection and safety create lucrative opportunities for FOC countries, which may prioritize profit over ecological concerns.
In contrast, a country may consider its role as a coastal state is very vital. Australia is a good example With its large pristine marine areas, such as the
The International Transport Workers' Federation (ITF) has identified 34 countries as Flags of Convenience (FOCs), which include Antigua and Barbuda, Bahamas, Barbados, Belize, Bermuda (UK), Bolivia, Burma, Cambodia, Cayman Islands, Comoros, Cyprus, Equatorial Guinea, Faroe Islands, French International Ship Register, German International Ship Register, Georgia, Gibraltar (UK), Honduras, Jamaica, Lebanon, Liberia, Malta, Marshall Islands (USA), Mauritius, Moldova, Mongolia, Netherlands Antilles, North Korea, Panama, Sao Tome and Principe, St Vincent, Sri Lanka, Tonga, and Vanuatu This designation is part of the ITF's campaign aimed at addressing issues related to FOCs.
6 ISL, Shipping Statistics and Market Review 55 (11) (2011) 5.
8 See generally Tan (2006), pp 47–57; Tetley (1993); Dempsey and Helling (1980); Egiyan (1990).
9 ITLOS decision in M/V “SAIGA” (No 2) case (St Vincent and Grenadines v Guinea) 38 ILM
1323 Also see Constitution of the Maritime Safety Committee of the Inter-Governmental Mari- time Consultative Organisation, I.C.J Reports 1960, p 150, 171.
Australia views its role as a coastal State as crucial, particularly in advocating for stronger international regulations to protect the marine environment from vessel-source pollution In 1990, Australia proposed to the Marine Environment Protection Committee (MEPC) the establishment of the Great Barrier Reef as a Particularly Sensitive Sea Area (PSSA), which led to the introduction of a mandatory pilotage and ship reporting system This initiative resulted in the Great Barrier Reef being designated as the first PSSA approved by the International Maritime Organization (IMO).
2.2.1.2 Developed, Developing and Least Developed States
The International Maritime Organization (IMO) continues to reflect a longstanding division among its Member States, categorized into developed, developing, and least developed nations While the dynamics of developed versus developing states have evolved since the 1970s, the current debate primarily centers on the conflict between coastal and port states seeking greater control over foreign vessels, and maritime nations advocating for the freedom of navigation Notably, the north-south divide remains a significant factor in IMO discussions, with the principle of Common but Differentiated Responsibilities (CBDR) becoming increasingly prominent in contemporary dialogues.
The shipbreaking industry and greenhouse gas emissions from international shipping highlight a significant divide between developed and developing nations, as discussed in Chapters 5 and 6 This ongoing conflict is reigniting historical north-south debates, particularly regarding technology transfer and assistance Recent MEPC negotiations reveal a clear divide, with developed and developing countries forming distinct groups in their discussions on climate change Despite the critical issues at stake, least developed countries (LDCs) are not actively participating as a cohesive group in the International Maritime Organization (IMO) negotiations, unlike their collaborative efforts under the UN Framework Convention on Climate Change (UNFCCC).
10 For definition of Particularly Sensitive Sea Areas (PSSA) see Chap 3.
12 About the LDC group, http://ldcclimate.wordpress.com/about-the-ldc-group/ > last, accessed on
On June 13, 2014, a list of countries classified as Least Developed Countries (LDCs) was highlighted, including Afghanistan, Angola, Bangladesh, and many others These nations often face unique challenges in the context of climate change and international shipping, stemming from their differing interests and needs within the maritime sector For further details, visit the LDC Group's page on UN climate change negotiations.
Despite the potential for equal participation in various IMO organs, developed countries continue to dominate the organization, highlighting the influence of non-governmental actors in this dynamic.
United Nations and Other Intergovernmental
The International Maritime Organization (IMO) is a specialized UN agency focused on shipping and its impact on the marine environment Established by the IMO Convention of 1948, the organization collaborates with various UN agencies and intergovernmental organizations sharing similar interests To date, IMO has signed cooperation agreements with 63 such organizations, including influential maritime and regional bodies Notably, the European Commission, as an observer in the IMO, significantly shapes the perspectives of EU Member States on marine environmental issues, as EU regulations can be binding This influence raises discussions about the potential for the European Union to seek full membership in the IMO, although this would require amending the original 1948 Convention.
The International Maritime Organization (IMO) collaborates with various organizations and programs within the United Nations system to address issues concerning the marine environment, notably through its partnership with the United Nations Environment Program.
16 IMO, Intergovernmental Organizations which have concluded agreements of co-operation with IMO, http://www.imo.org/About/Membership/Pages/IGOsWithObserverStatus.aspx, last accessed on 14 June 2014.
17 See generally, Nengye and Maes (2010).
International Non-governmental Organisations with
International non-governmental organizations (INGOs) significantly influence the International Maritime Organization (IMO) law-making process, despite lacking voting rights The IMO Convention of 1948 allows for consultation and cooperation with INGOs on relevant matters In 1961, the IMO Assembly established the Rules for Consultative Status for INGOs, which were further refined by the IMO Council in 1978 These guidelines enable the IMO Council, with Assembly approval, to grant consultative status to INGOs that can substantially contribute to IMO's work Currently, 77 INGOs hold consultative status, representing diverse interests in marine environmental discussions, including shipping, cargo, seafarers, labor organizations, environmental groups, research institutions, training bodies, classification societies, and marine insurance entities.
Ship-owners and operators hold significant power within maritime organizations, influencing Member States with shipping interests Cargo owners and charters, especially large oil companies, are also prominent voices in this sector Additionally, classification societies, protection and indemnity insurance clubs, and other marine insurers play active roles in the International Maritime Organization's (IMO) marine environmental law-making Environmental NGOs contribute to this process by participating in Marine Environment Protection Committee (MEPC) meetings and making regular submissions.
Non-governmental organizations (NGOs) impact the law-making process not only through their submissions and participation in meetings of the Marine Environment Protection Committee (MEPC) and other International Maritime Organization (IMO) bodies, but primarily through their connections with IMO Member States that share similar interests The dominance of Flag of Convenience (FOC) countries within the IMO provides shipping companies with additional opportunities to influence the legislative process, establishing a client-service-provider dynamic that enhances their leverage.
The International Maritime Organization (IMO) has established rules and guidelines for granting consultative status to non-governmental international organizations These regulations are crucial for ensuring effective collaboration and communication within the maritime sector For more detailed information, refer to the official document available on the IMO website.
The International Maritime Organization (IMO) recognizes 21 non-governmental international organizations with consultative status This participation of NGOs in the IMO is notably more significant compared to other international organizations Further discussions on these topics will be provided in upcoming chapters, supported by practical examples.
IMO Institutional Framework and Institutional Politics
Assembly
The IMO Assembly, comprising all member states, serves as the organization's supreme body, responsible for electing other organs, approving budgets and work programs, and overseeing organizational activities It plays a crucial role in recommending the adoption and amendment of regulations aimed at preventing and controlling marine pollution from ships While the Assembly's recommendations are not legally binding, they are often adopted into national law as international standards Additionally, the Assembly decides on convening international conferences or other procedures for adopting and amending international conventions developed by the MEPC or other IMO organs.
Council
The Council, as the second organ in the IMO hierarchy, has undergone significant amendments regarding its membership, which was initially dominated by developed maritime States However, the gradual expansion of membership has altered this dynamic Despite this expansion, greater participation from developing countries, especially the least developed coastal States, remains a challenge Currently, the Council comprises 40 members elected by the Assembly, which must ensure representation from ten members with the largest interest in providing maritime services.
Marine Environment Protection Committee (MEPC)
Subcommittee on Human Element, Training and Watchkeeping
Subcommittee on Implementation of IMO Instruments (III)
Subcommittee on Navigation, Communications and Search and Rescue (NCSR)
Subcommittee on Pollution Prevention and Response (PPR)
Subcommittee on Ship Design and Construction (SDC)
Subcommittee on Ship Systems and Equipment (SSE)
Subcommittee on Carriage of Cargoes and Containers (CCC)
The International Maritime Organization (IMO) has a structured council comprising ten members with significant stakes in international seaborne trade and twenty members with specialized interests in maritime transport, ensuring global geographic representation However, a notable tension exists between developed and developing nations concerning council elections This was highlighted during the 24th Assembly in 2005, where the election process controversially excluded representatives from West Africa, Central Africa, Latin America, and Eastern Europe, despite the stated goal of inclusive geographic representation.
The Council oversees the functions of the IMO Assembly between sessions, excluding recommendations for regulations and guidelines It reviews budget estimates and work programs from various IMO organs, submitting them to the Assembly Additionally, the Council receives and transmits reports, proposals, and recommendations from other IMO organs to the Assembly or directly to Members when the Assembly is not in session The Council also has the authority to appoint the Secretary-General, subject to Assembly approval, and is responsible for hiring other administrative and technical staff Furthermore, it establishes relationships with other organizations.
According to Article 17 of the 26 IMO Convention, the Council members for the 2014–2015 biennium are categorized into three groups Category (a) includes ten states with the largest interest in providing international shipping services, namely China, Greece, Italy, Japan, Norway, Panama, the Republic of Korea, the Russian Federation, the United Kingdom, and the United States Category (b) consists of ten other states that have significant interests in international seaborne trade, including Argentina, Bangladesh, Brazil, Canada, France, Germany, India, the Netherlands, Spain, and Sweden.
20 states with significant interests in maritime transport and navigation, not elected under previous criteria, are crucial for ensuring global representation on the Council These states include Australia, Bahamas, Belgium, Chile, Cyprus, Denmark, Indonesia, Jamaica, Kenya, Liberia, Malaysia, Malta, Mexico, Morocco, Peru, Philippines, Singapore, South Africa, Thailand, and Turkey Their inclusion reflects the diverse geographic areas of the world, enhancing the structure of the International Maritime Organization (IMO).
Maritime Safety Committee (MSC)
MSC primarily focuses on maritime safety and security, but its efforts also contribute to preventing marine pollution The committee is composed of all members of the organization.
The Maritime Safety Committee (MSC) was originally established with 14 members, as outlined in Article 28(a) of the IMCO Convention This committee includes at least eight representatives from the largest ship-owning nations During its inaugural meeting from January 6 to 19, 1959, the IMCO Assembly elected members from the United States, United Kingdom, Norway, Japan, Italy, Netherlands, France, and Germany However, Liberia and Panama raised significant objections to the inclusion of France and Germany, arguing that their own ship-owning interests are greater than those of the two European nations.
On January 19, 1959, the IMCO Assembly sought an advisory opinion from the International Court of Justice regarding the legitimacy of the MSC election under the IMCO Convention Opponents of Liberia and Panama's inclusion argued that both nations are Flag of Convenience (FOC) countries lacking a 'genuine link' to the vessels registered under their flags Ultimately, the International Court of Justice ruled that the committee elected by the Assembly was not formed in accordance with the IMCO Convention.
The determination of the largest ship-owning nations is based solely on the tonnage registered in those countries, making any further analysis regarding a genuine link unnecessary for addressing the question presented to the Court for an advisory opinion.
The controversy highlights the ongoing north-south tensions within the organization, evident since the Assembly's inaugural meeting While the representation of a Flag of Convenience (FOC) country in a key organizational body might suggest inclusivity, it does not guarantee the active participation of developing or Least Developed Countries Instead, an FOC country may merely serve as a rubber stamp for the interests of large shipping companies owned by developed nations Notably, in 1974, the IMO Assembly amended the IMO Convention to ensure that all member states were included in the Maritime Safety Committee (MSC).
MSC has a long-standing connection with the IMO's efforts to combat marine pollution, beginning with the establishment of the Sub-committee on Oil Pollution (SCOP) in 1965 This sub-committee was formed under the MSC and has since facilitated various marine pollution initiatives within the organization.
In 1973, the Sub-committee on Marine Pollution (SCMP) was established, following the renaming of SCOP Although marine environment-related responsibilities were transferred to the Marine Environment Protection Committee (MEPC) as a separate entity, the Marine Safety Committee (MSC) continues to play a vital role in addressing marine issues.
The Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization plays a crucial role in preventing pollution from ships through various activities These activities encompass aids to navigation, vessel construction and equipment standards, collision prevention measures, handling of hazardous cargo, and implementation of maritime safety procedures Additionally, the committee provides essential hydrographic information, navigational records, and oversees salvage and rescue operations, all aimed at enhancing maritime safety and environmental protection.
Marine Environment Protection Committee (MEPC)
The Marine Environment Protection Committee (MEPC) was established as a permanent subsidiary organ of the Assembly during its 80th session in 1973 In 1975, the ninth session of the International Maritime Organization (IMO) Assembly formally institutionalized MEPC as an organ of IMO through an amendment to the IMO Convention, which took effect in 1982.
The Marine Environment Protection Committee (MEPC) plays a crucial role in the International Maritime Organization's (IMO) efforts to prevent pollution from ships Its establishment as a distinct entity highlights the equal importance of marine environmental protection alongside maritime safety MEPC has the authority to address all issues related to the prevention and control of marine pollution from vessels, as outlined in international legal frameworks This committee is tasked with executing functions that aim to safeguard the marine environment from ship-related pollution.
In particular, MEPC is responsible for functions related to the adoption and amendment of regulations or other provisions stipulated in those legal instruments.
The Marine Environment Protection Committee (MEPC) plays a crucial role in promoting the enforcement of international marine environmental conventions and gathering essential scientific and technical information on marine pollution It also fosters cooperation with regional organizations to address marine environmental issues The committee facilitates negotiations for legal instruments related to the marine environment under the International Maritime Organization (IMO) However, the MEPC's workload has significantly increased, as evidenced by the 21 agenda items discussed during MEPC 66, which included topics such as harmful aquatic organisms, ship recycling, air pollution, greenhouse gas emissions, protection of sensitive marine areas, and the implementation of IMO legal instruments.
The Marine Environment Protection Committee (MEPC) frequently forms various working groups, including inter-sessional and ad hoc expert teams, to address specific environmental issues effectively.
Technical Cooperation Committee (TC)
Established in 1969, the Technical Cooperation Committee serves as a key subsidiary body of the IMO Council, facilitating technical cooperation for the implementation of IMO instruments Recognized as one of the principal organs of the IMO following a 1977 resolution, the committee encompasses all member states and is tasked with overseeing the Secretariat's technical cooperation activities and projects funded by the UN and other sources Its role has become increasingly crucial as IMO's marine environmental initiatives expand into areas of heightened north-south tensions, particularly concerning GHG emissions reduction from international shipping, where the principle of Common But Differentiated Responsibilities is a contentious topic Ensuring effective technical cooperation with developing countries is essential for implementing this principle universally Additionally, the committee's involvement in shipbreaking, predominantly situated in the developing world, underscores the importance of technical cooperation in addressing these critical industry challenges.
Legal Committee (LEG)
The IMO Legal Committee, established in 1967 following the Torrey Canyon oil spill, was created to address legal issues related to marine environmental protection This temporary committee has been pivotal in developing legal instruments that provide a comprehensive framework for compensating damages caused by vessel-source marine pollution The significance of these legal instruments will be explored in the next chapter.
In 1975, during its ninth session, the IMO Assembly established the Legal Committee as a key organ of the organization by adopting an amendment to the IMO Convention Following the amendment's entry into force in 1982, the Legal Committee became a permanent entity, comprising all IMO member states This Committee is empowered to address various legal issues, including those related to environmental matters, within the IMO's scope and convenes at least once annually.
Facilitation Committee (FAL)
In 1968, IMO established the Facilitation Committee to advise the IMO Council on matters related to facilitation, particularly with respect to the implementation of the
The 1965 Convention on Facilitation of International Maritime Traffic, effective from 1967, led to the establishment of a permanent subsidiary body of the IMO Council in 1972 In 1991, the IMO Assembly formalized this committee as a key permanent organ of the organization through an amendment to the IMO Convention, which took effect in 2008 Comprising all member states, the committee addresses matters related to the facilitation of international maritime traffic and indirectly contributes to the prevention of marine pollution from ships.
Sub-committees
The IMO also has seven subcommittees to assist the work of MEPC and MSC including the following:
1 Subcommittee on Human Element, Training and Watchkeeping (HTW);
2 Subcommittee on Implementation of IMO Instruments (III);
3 Subcommittee on Navigation, Communications and Search and Rescue (NCSR);
4 Subcommittee on Pollution Prevention and Response (PPR);
5 Subcommittee on Ship Design and Construction (SDC);
43 Convention on Facilitation of International Maritime Traffic, opened for signature 9 April 1965,
591 UNTS 265 (entered into force 5 March 1967).
6 Subcommittee on Ship Systems and Equipment (SSE); and
7 Subcommittee on Carriage of Cargoes and Containers (CCC) 44
The Pollution Prevention and Response (PPR) subcommittee plays a crucial role in combating marine pollution by addressing essential technical and operational issues.
• prevention and control of pollution of the marine environment from ships and other related maritime operations;
• safe and environmentally sound recycling of ships;
• evaluation of safety and pollution hazards of liquid substances in bulk transported by ships;
• control and management of harmful aquatic organisms in ships ’ ballast water and sediments, and biofouling; and
• pollution preparedness, response and cooperation for oil and hazardous and noxious substances 45
The Subcommittee on Implementation of IMO Instruments plays a crucial role in addressing the inadequate national implementation of marine environmental instruments, especially in developing and least developed countries Following the recent restructuring, which reduced the number of subcommittees assisting the MEPC and MSC to better align with evolving IMO activities, the focus on effective implementation has become increasingly important for enhancing marine environmental protection.
Secretariat
The Secretariat, a fundamental organ of the International Maritime Organization (IMO), is led by a Secretary General and supported by approximately 300 international personnel It plays a crucial role in managing the organization's administrative functions, including record keeping and overall operational activities.
44 IMO, IMO Sub-Committee restructuring agreed by MSC, http://www.imo.org/MediaCentre/ PressBriefings/Pages/26-restructuring.aspx#.U5pVnRCtRek, last accessed on 13 June 2014.
The article highlights various sub-committees involved in maritime safety and regulations, including the Sub-Committee on Bulk Liquids and Gases (BLG), Dangerous Goods, Solid Cargoes and Containers (DSC), Radio communications, Search and Rescue (COMSAR), Navigation (NAV), Ship Design and Equipment (DE), Fire Protection (FP), Stability, Load Lines and Fishing Vessels Safety (SLF), Flag State Implementation (FSI), and Standards of Training and Watchkeeping.
47 IMO, Structure, http://www.imo.org/About/Pages/Structure.aspx last accessed on 13 June 2014.
48 Apart from these organs IMO also oversees the activities of the Consultative Meeting ofContracting Parties to the London Dumping Convention.
IMO Funding and Influence
IMO committees and sub-committees are predominantly influenced by developed countries, as developing nations, particularly the least developed, struggle to send large delegations with the necessary expertise to participate effectively While some least developed countries may have representation, the independence of their voices remains questionable Historically, IMO has been a platform primarily for developed nations with significant shipping interests However, with the organization's focus expanding to critical issues like climate change and shipbreaking, emerging economies such as China, India, and Brazil are increasingly interested in engaging in IMO committees.
Despite the dominance of developed nations, several developing countries have emerged as significant contributors to the IMO Budget The financial statements of the IMO for the year ending December 31, 2012, highlighted the top ten assessed contributions from member states.
International and regional organizations, along with Member States, significantly contribute to IMO funding through donations for specific activities, which may impact their influence in the IMO law-making process According to Table 2.2 from the 2012 IMO financial statement, the top ten donors to the IMO are highlighted.
Despite some developing countries having higher assessed contributions, developed nations and leading developing countries remain the primary sources of revenue for the International Maritime Organization (IMO) through both assessed contributions and donations Notably, the top three contributors to the IMO's revenue are Flag of Convenience (FOC) countries, raising questions about their representation of least developed countries and their distinction from ship-owners utilizing registration services Consequently, while some least developed countries contribute significantly to the IMO's budget, their participation and influence within the organization are largely marginalized, similar to their roles in other international entities.