El estado como actor internacional: una aproximación critica al concepto.

Pursuant to Recommendation 86 of the UN Conference on the Human Environment, the Government of the United Kingdom convened a con- ference which led to the London Dumping Convention which, as it was later amended to also deal with incineration, is now known as the London

Convention 1972.15 _{Under the convention ‘dumping’ is defined as the}

deliberate disposal at sea of wastes or other matter from vessels, aircraft, platforms or other man made structures, other than in normal operations. The usual exceptions are made for emergencies and the safety of the vessels or platforms and the persons connected with them.

Under the London Convention 1972, states are to prohibit the dumping of wastes set out in Annex I (the ‘black’ list). Materials which were not so harmful are listed in Annex II (the ‘grey’ list) and there were restrictions required of the contracting states about these. In 1995 the convention also addressed prohibition of dumping of low level nuclear wastes, which had become a problem. The convention also prohibits or regulates incine- ration of these substances at sea.

The 1996 Protocol to the London Convention makes major changes in that it consolidates all amendments into the one instrument and, as it came into force on 24 March 2006, special note should be taken of its provisions. As mentioned earlier, the status of conventions at any time is available on the IMO website.16

14 Article 1.

15 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, done at London on 13 November 1972.

The provisions of the 1996 Protocol replaced the earlier convention and it expressly refers to the need for the ‘precautionary approach’ and the ‘polluter pays’ principle.17 _{State parties are to make laws to prohibit}

or regulate incineration of the relevant substances at sea and are also to make laws to regulate export of prohibited wastes to other countries for dumping.18 _{The exceptional circumstances are provided for, such as}

securing the ‘safety of human life or vessels, aircraft, platforms and other man-made structures at sea in cases of force majeure’. A regulatory structure is erected with permits and reporting systems, in default of which state parties are to enforce and prosecute. State parties are to co- operate with each other in its application and dispute resolution between states is to be by negotiation, mediation, arbitration or other peaceful means, or under the dispute settlement provisions of UNCLOS.19

The 1996 Protocol adopts a much stricter attitude to dumping. Whilst under the 1972 convention the annexes list substances in order of toxicity, under the 1996 Protocol dumping is prohibited unless mentioned in Annex I.20 _{The substances listed in Annex I, where dumping is to be}

regulated but not prohibited, include dredged material, sewage sludge, fish waste, inorganic geological material and bulk materials of harmless materials, such as iron, steel and concrete, where the main concern is the physical impact. The 1996 Protocol has also extended its purview to the storage of waste in the seabed as well as abandonment of offshore instal- lations. Incineration of wastes at sea was prohibited under amendments to the 1972 convention and this prohibition is continued under the 1996 Protocol.21

Overall the London Convention has been a great success in helping change the concept from the oceans as a convenient dumping ground for waste to one where the oceans are regarded as a delicate environment which must be protected and which can only absorb limited dumping and that dumping is allowable only after careful consideration of its impact.

3.5 MARPOL 73/78

The problem of oil pollution from tankers was addressed by the British Government through a Royal Commission in the early 1950s which was followed by an international conference, which in turn resulted in the first convention to regulate disposal of waste from ships into the sea,

17 Article 3. These approaches originated in UNCED in Rio de Janeiro in the 1992 Earth Summit, mentioned above in Chapter 2.

18 Articles 5, 6. Export of prohibited wastes is also subject to the provisions of the Basel Convention.

19 Article 16. The arbitral procedure is set out in the convention in Annex 3. 20 Article 4.

OILPOL 54.22 _{It established ‘prohibited zones’ into which oil from tankers}

was not to be discharged unless containing minimal oil (less than 100 parts of oil per million of water). It addressed the need for shore facilities to be provided by governments for discharge ashore of oil and oily water. It was amended from time to time and was a first step in the right direction.

The Torrey Canyon oil disaster in 1967 and other tanker accidents made the international community realise that more needed to be done. In 1973 the IMO23 _{called a conference which resulted in agreement on the}

terms of MARPOL 73.24 _{Under the terms of this convention much more}

regulatory control was imposed on tanker operations than under the earlier OILPOL 54 convention and the larger marine pollution problem was addressed going well beyond oil spills. As a result it was directed at regulating disposal or discharge from all types of ships, not just tankers. It also extended beyond regulation of oil.

But MARPOL 73 did not attract sufficient ratifications to come into force, so the IMO organised a further conference which was held in London in 1978. Because so few states had ratified MARPOL 73 the short- comings needed to be addressed, so the conference approved of a major Protocol that absorbed the 1973 convention and the combined documents became known as MARPOL 73/78.25 _{Only Annexes I and II were com-}

pulsory for participating states, with the other annexes being optional.26

MARPOL 73/78 wasdrafted togowellbeyond oilpollution andit hadfiveannexesinitially,eachoneofwhichdealtwithseparateaspectsof marinepollutionfromships.Itisanenormousconventionwhenallofthe annexesand appendicesareincludedandtheIMOconsolidatededition book of the convention runs to about 500 pages. A more detailed des- criptionofthepresentstateoftheconventionwillbeaddressedshortly.

Impetus was given to international acceptance of the IMO conven- tions by earlier disastrous tanker accidents, but it was the tanker accident involving the Amoco Cadiz in March 1978 that suddenly had governments focusing on oil tanker spills.27 _{This huge oil spill impressed on govern-}

ments that all coastal nations were at risk and not only nations with

22 International Convention for the Prevention of Pollution of the Sea by Oil 1954. 23 The IMO took over from the British Government as the depositary and orga-

nising body for OILPOL 54 so it was the natural successor agency to organise the MARPOL 73 conference.

24 International Convention for the Prevention of Pollution from Ships, which was done at London on 2 November 1973.

25 The International Convention for the Prevention of Marine Pollution from Ships, 1973 as modified by the Protocol of 1978 relating thereto, which entered into force inter- nationally on 2 October 1983 (for Annexes I and II).

26 Ratification automatically required adoption of Annexes I and II, but the other annexes were optional.

27 For an authoritative note on the relationship between the 1978 convention and the Amoco Cadiz casualty, see Sasamura Y, ‘34 Years of IMO’, IMO News No 4, 1993.

shipping fleets and oil companies. As a result there were sufficient ratifi- cations of MARPOL 73/78 for Annexes I and II of the convention to come into force internationally in 1983 and an indication of the international weight of MARPOL is that Annexes I and II now cover some 97% of the world shipping tonnage.28 _{As mentioned, states had the option of only}

agreeing to Annexes I and II or all of the annexes.29

At an IMO diplomatic conference held in London in 1997 a Protocol was passed which created Annex VI, which addresses air pollution from ships.30 _{It is possible that there will be further annexes to MARPOL 73/78}

as amendments to the convention are made regularly.

Particular provision was made in MARPOL 73/78 for the protec- tion of the Australian Great Barrier Reef (GBR). It commenced with an attempt to incorporate a suitable provision in OILPOL 54 but the issue was dealt with by MARPOL 73/78 defining ‘nearest land’ as outside the reef. In the technical annexes, discharges of many types of ships waste are only to take place if the ship is a specified distance to seaward from nearest land. For the Australian GBR ‘nearest land’ was given a special definition that drew a line, by reference to points marked by their latitude and longitude, which ran outside the outer reef of the GBR.31

This gave protection to the GBR area by severely restricting the discharge activities of ships under MARPOL 73/78 as the ships had to be offshore from the outer reef before discharges of most types were allowable.

MARPOL is the most extensive of the marine pollution conventions relating to discharge of pollutants from ships. It is one which has signi- ficant punitive aspects when given the force of law (for Australian legis- lation see below). The master, owner and other persons who cause environmental damage may be charged and the fines may be extensive.32

28 IMO website (<www.imo.org/HOME.htm>), ‘Summary of Status of Conven- tions’. The Summary is reproduced as Appendix 1 to this book.

29 The dates on which the annexes came into force internationally are: I and II – 2 October 1983; III – 1 July 1992; IV – 27 September 2003; V – 31 December 1988; VI – 19 May 2005.

30 See the IMO website, above, and Annex I of this book for details of ratifications. 31 For the definition of ‘nearest land’ see MARPOL 73/78 Annex I reg 1.10, Annex II

reg 1.9, Annex IV reg 1(5) and Annex V reg 1(2).

32 AprominentcasewasFilipowskivFratelliD’AmatoSrl(TheLaurad’Amato)(2000) 108LGRA88;[2000]NSWLEC50.Thetankerpumpedalargequantityofoilcargo overthesideintoSydneyharbourinsteadofashoreintotheoilstoragetanks.It should be noted that it was the owner and the first officer who were fined (A$510,000 and A$110,000 respectively) under the Marine Pollution Act 1987 (NSW),whichActgaveeffecttoMARPOL. Thechargethathadbeenbrought againstthemasterwasstrictlyprovenbutwasdismissedunderadiscretionavail- abletothecourtunders556AoftheCrimesAct1900(NSW).Thejudge’sreasoning forthisdismissalwasthat‘topunishtheMasterorCaptainoftheshippersonally foranoccurrenceover whichhehadnopersonalcontrol,exceptinadetached overall sense where the owner has alreadybeen punished on the basisof its vicariousresponsibilityandthepersondirectlyresponsiblewillalsobepunished, would,inmyopinion,beanexcessiveandunreasonablepunishment’(at[137]).

Even if a ship complies with the MARPOL requirements the master and owner are still at risk with being charged under general environmental legislation of a state.33

Annex I34 _{addresses the discharge of oil from ships and imposes a regime}

under which the normal operations of ships concerning the discharge of oil overboard is strictly controlled. It absorbed the provisions of OILPOL 54 and extended them enormously. It is comprised of 37 Regulations and several appendices. Regulation 1 and its Appendix 1 define the oils caught by it,35 _{which is practically the whole range (but excludes those}

petrochemicals which come under Annex II). Regulation 1.10 defines ‘nearest land’ as points to seaward of the GBR, as already mentioned. From the legal point of view, it is worth highlighting several Regulations. Regulation 11 gives the power to enforce port state control and if the vessel does not comply with Annex I to detain it until it does. Regu- lations 15 and 34 relate to the legal requirements about control of oil, and its key provisions are that ‘any discharge into the sea of oil or oily mix- tures from ships … shall be prohibited’ unless the regulatory provisions are satisfied. These provisions relate to no discharge in ‘special areas’ and for other discharges the tanker must be more than 50 miles from the nearest land, proceeding en route and the discharge should not exceed 30 litres per nautical mile etc (the provisions are fairly numerous). Regu- lation 1.11 defines special areas, which are areas that are particularly at risk36 _{and in which no discharges are allowable in the main.}

33 In EPA v Asmund Bjoerkmo; EPA v Stolt Parcel Tankers; EPA v Stolt Acquamarine; being Victorian Magistrates Court Proceedings Nos M01604930; M01605344; M01605526, the Victorian EPA brought charges for polluting the beaches. The ship, MT Stolt, maintained that it had complied with the requirements of MARPOL when it washed out its tanks (20 miles offshore). It is a problem if State legislation is passed which contravenes the international conventions which Australia ratifies. Such legislation should have a provision that if the marine environmental legislation applies, as in MARPOL, then the general State legislation does not. (An example is the Queensland Environmental Protection Act 1994 s 20(2), which provides that if the Queensland Transport Operations (Marine Pollution) Act 1995 applies then the EPA does not have application). See Chapter 7, below, for Australian State and Territory legislation and Chapter 10 for that for NZ.

34 Revised versions of Annexes I and II entered into force internationally on 1 January 2007 and this text refers to the revised version. Readers should take care to use the relevant version when dealing with Annexes I and II and, for that matter, with all aspects of the international conventions as they are frequently amended.

35 Under reg 1.1 ‘oil means petroleum in any form including crude oil, fuel oil, sludge, oil refuse and refined products (other than petrochemicals which are subject to the provisions of Annex II)’.

36 Mediterranean Sea, Baltic Sea, Black Sea, Red Sea, Gulf areas between Ras al Hadd and Ras al Fateh Gulfs, Gulf of Aden, Antarctic area (south of 60 degrees south), North-West European waters (and southern South Africa waters from 2010).

Regulation 4 contains the exceptions to the application of regs 15 and 34, which are the defences in fact. These defences apply if the discharge was to secure the safety of the ship or to save life at sea or it resulted from damage to a ship or its equipment provided all reasonable precautions were taken afterwards to prevent or minimise it. This exception does not apply, however, ‘if the owner or the master acted either with intent to cause damage, or recklessly and with knowledge that damage would probably result; or …’ it was approved by the administration to combat another discharge. Annex I applies to fixed and floating drilling rigs and reg 39 equates their responsibilities to non- tankers of 400 tons gross tonnage and above.

The rest of Annex I is concerned with details of ships’ construction, equipment, record books, forms, calculations to meet these requirements and administrative details. In all it is a long and fairly complex document. It applies to tankers and non-tankers and to oil cargo and to bunker oil. Overall Annex I has been very successful in reducing discharge of oil into the sea, as shown in the tables in Chapter 1.