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PREVENTION OF MARINE LITTER POLLUTION UNDER IMO CONVENTIONS by Miguel Palomares Senior Deputy Director, Marine Environment Division, International Maritime Organization INTRODUCTION The prevention of marine pollution from ships in all its manifestations is one of the main concerns of the International Maritime Organization. As such, it occupies a prominent place among the Organization’s priorities and has been, and continues being, the subject of permanent attention by IMO Members, mainly through the work of the Marine Environment Protection Committee and its subsidiary bodies, and also of the Meetings of the Contracting Parties to the London Convention and Protocol. In addition to the regulatory work performed by these bodies, the IMO Secretariat endeavours to provide technical assistance to developing countries, through the Integrated Technical Co-operation Programme (ITCP) of the Organization and other externally-funded projects, with the objective of developing or increasing their ability and capacity to implement the international regulatory regime embodied in the relevant Conventions and Protocols to which they are Party. The aim of this paper is to provide an overview of the IMO regulatory framework dealing, in particular, with the prevention of marine pollution caused by garbage discharged or dumped from ships. Consequently, it will mainly address MARPOL Annex V and, to a lesser extent, the London Convention and Protocol. THE MARPOL CONVENTION The International Convention for the Prevention of Pollution from Ships, as modified by the Protocols of 1978 and 1997 relating thereto (hereinafter referred to as the “MARPOL Convention”), constitutes one of the most important global treaties aimed at protecting the marine environment from all sort of ship-generated contaminants. The Convention contains regulations covering several types of pollutants in six Annexes:
As with other international instruments, Parties to MARPOL have obligations and rights. On the one hand, they accept the obligation to ensure that ships flying their flag do not discharge wastes into the sea and, in return, they enjoy the right of not being polluted by ships from other Parties, to the extent that they can prosecute the offenders if the pollution occurs within their territorial waters. Non- Parties cannot invoke such right, but they may still be subject to prosecution under the “not more favourable treatment” principle. Annexes I and II are compulsory, in the sense that they have to be ratified at the same time as the Convention, whereas the other four Annexes are optional. MARPOL ANNEX V ON PREVENTION OF POLLUTION BY GARBAGE FROM SHIPS Annex V entered into force on 31 December 1998 and has subsequently been amended several times to include the designation of certain special areas; to introduce provisions relating to port State control on operational requirements; and to include amendments to several regulations. It contains regulations for the control of pollution by garbage from all ships. In other words, Annex V regulates the discharge of “all kind of victual, domestic and operational waste including fresh fish and parts thereof, generated during the normal operation of the ship and liable to be disposed” (regulation 1) from “vessels of any type whatsoever operating in the marine environment, including hydrofoil boats, air cushion vehicles, submersibles, floating craft and fixed or floating platforms” (Article 2 (4) of the Convention), which also means pleasure craft and fishing vessels. So, this Annex applies virtually to anything that floats which is liable to produce almost any kind of refuse. In implementing Annex V regulations, the Administration needs to take into account which of them apply to the ship (flag State) and which to shore installations (port or coastal State), as well as:
Special Areas Due to specific oceanographic, ecological or shipping characteristics of some sea areas, the Convention has established “special areas”. The discharge of oil or oily mixtures (Annex I), noxious liquid substances carried in bulk (Annex II), garbage (Annex V) and gas emissions (Annex VI) is subject to more stringent control in special areas. Currently there are eight special areas designated under MARPOL Annex V, as shown in the table below, where the adoption of special mandatory methods for the prevention of sea pollution by garbage is required. Only the Baltic Sea, the North Sea and the Antarctic Sea special areas are currently effective. The others, although properly designated under Annex V regulation 5, are not yet in effect because of insufficient port reception facilities in, or lack of ratification of the Convention by, some of the countries constituting the special area in question. Except for very few exceptions in cases of emergency (regulation 6), the disposal of the following into the seas anywhere within special areas is prohibited (regulation 5):
1. all plastic, including but not limited to synthetic ropes and fishing nets, plastic bags and incinerator ashes from plastic products; 2. all other garbage, including paper products, rags, glass, metal, bottles, crockery, dunnage, lining and packing materials; 3. food wastes less than 12 miles from land, except in the case of the Wider Caribbean Region, where comminuted or ground food wastes capable of passing through a 25mm screen may be discharged not less than three nautical miles from land; and 4. mixtures of garbage and other discharges having different disposal or discharge requirements. Coastal States bordering a special area undertake to provide adequate reception facilities in all their ports, taking into account the special needs of ships operating in the area concerned, and also to notify the Organization the measures taken in that respect. A designated special area will only be effective after the Organization has received a sufficient number of notifications and has established a date from which the above requirements will take effect. After that date has been communicated by the Organization to the Parties, ships will have to comply with the requirements, even in the case where adequate reception facilities are not provided. In the case of the Antarctic Sea, where no reception facilities are likely to be found, special provisions apply, whereby the flag State has to ensure that its ships, if intending to enter that special area, have sufficient capacity to retain on board all the garbage likely to be produced during the voyage, and the coastal States where the ship is likely to touch port during the voyage, especially the final destination, have to ensure that adequate reception facilities to receive the generated waste are in place. Disposal outside special areas Although the requirements applying outside special areas (regulation 3) are somewhat less stringent, the disposal of all plastics, including ropes, fishing nets, bags and incinerator ashes, is still prohibited anywhere at sea. Dunnage, lining and packing materials that float shall not be discharged within 25 miles from land, whereas the disposal of food waste and all other garbage is prohibited less than 12 miles from the nearest land, unless it is comminuted or ground, in which case the minimum distance from land for disposal is 3 miles. Mixtures of garbage and other discharges having different disposal or discharge requirements are subject to the most stringent provisions. In the case of floating or fixed offshore platforms engaged in the exploration or exploitation of seabed mineral resources, the disposal of any garbage is prohibited, except for food wastes that have been passed through a comminuter or grinder, provided the platform in question is located more than 12 miles from land. These requirements also apply to ships within 500 metres of the above-mentioned platforms. The following table provides a tabulated summary of the requirements regulating the disposal of garbage at sea.
Notwithstanding the above dispensations where the discharge of certain wastes is allowed beyond specified distances from the nearest land, the underlying principle is that, in as far as is possible and practicable, such wastes should be retained on board for disposal at adequate reception facilities ashore and that, when this is not feasible, the disposal into the sea of the garbage in question is to be made as far as practicable from the nearest land and in no case at a distance below the stipulated range in each case. Shipboard garbage management (owner/operator and flag State responsibility) In contrast with other MARPOL Annexes, the provisions of Annex V address discharges from ships and do not stipulate equipment requirements. For instance, regulation 9(2) requires every ship of 400 gross tonnage and above and every ship certified to carry 15 persons or more, to have in place a garbage management plan for the crew to follow, developed in accordance with the IMO Guidelines for the development of garbage management plans (MEPC/Circ.317) and written in the working language of the crew. The plan must designate the person in charge of its execution and contain written procedures for collecting, storing, processing and disposing of garbage and for the use of the equipment on board. Each discharge operation or activity in respect of garbage on board must be duly recorded. To this end, every ship that is required to have a garbage management plan must be provided with a Garbage Record Book (regulation 9(3)), which is to be maintained in accordance with the relevant provisions of that regulation and be in the form specified in the appendix to Annex V. In addition, every ship of 12 metres or more in overall length is required to display placards to notify the crew and passengers of the ship’s disposal provisions. The Administration may waive the requirement for a Garbage Record Book for ships certified to carry 15 persons or more but that are engaged on voyages of one hour or less in duration, and for fixed or floating platforms while engaged in exploration and exploitation of the sea-bed. The above requirements are addressed to the ship owner/operator and, as the ultimate responsible, to the maritime Administration in its capacity as flag State. As such, the Administration should:
Port reception facilities (coastal/port State responsibility) Regulation 7 of MARPOL Annex V states that the Government of each Party to the Convention undertakes to ensure the provision of adequate reception facilities for garbage from ships using its ports and terminals. This is, therefore, a necessary condition to enable the implementation of the Annex and, indeed, for designated special areas to take effect. As such, it is the responsibility of the maritime Administration in its capacity as port/coastal State, although it does not mean that the Administration must necessarily provide the facility; it means, in practice, that the Administration can require a port authority or a terminal operator to provide the facilities, the same way it requires the owner of a ship flying its flag to have on board a Garbage Record Book. The obligation to provide adequate port reception facilities covers all ports, terminals, harbours and marinas visited by commercial shipping and other types of vessel. In order that ports can ensure that such facilities are commensurate with the quantities and variety of wastes likely to be delivered ashore, they need to develop a port waste management procedure or plan to enable them to accurately assess their needs. In turn, the Administration will need to consider how it can best promote the adoption of sound port waste management procedures, either by imposing a statutory obligation in their ports, harbours and marinas; through voluntary industry initiatives; or by a combination of the two possibilities (e.g. public/private initiatives). In any event, there is a need for a consultative process, whereby all interested parties, including port authorities, ship operators, agents, waste service providers and, of course, the various Government agencies, have the opportunity of expressing their views and state their interests before a plan of action is agreed by all. The appendix to this paper provides some useful references to relevant IMO publications and documents that will enable the reader to obtain extensive guidance on implementation of the provisions of Annex V and all matters related to port reception facilities. In particular, the Comprehensive manual on Port Reception Facilities provides detailed advice on all aspects related to the issue, such as the key steps towards the creation of effective facilities, which may include:
Port State control Under MARPOL Annex V, a ship when in port of another Party is subject to inspection by officers duly authorized by such Party (port State control officers) concerning operational requirements under the Annex, where there are clear grounds for believing that the master or the crew are not familiar with essential shipboard procedures relating to the prevention of pollution by garbage. In these circumstances, the Party shall take the necessary steps to ensure that the ship does not sail until the situation has been rectified in accordance with the relevant requirements. The role of IMO The International Maritime Organization is a specialized agency of the United Nations and, therefore, cannot act as an enforcement agency in response to allegations of inadequacy of port reception facilities. Nevertheless, the obligation for Parties to report alleged inadequacies to IMO remains valid. The Organization, on the other hand, is in a unique position to raise matters of concern with national Administrations and may, on occasions, act as honest broker in trying to avoid resorting to more formal arbitration procedures. In the field of technical co-operation, IMO provides educational, training and technical assistance both to existing Parties and also to States wishing to become Parties to MARPOL. Under its Integrated Technical Co-operation Programme, the Organization, recognizing the transboundary nature of marine pollution by garbage, fosters regional agreements which may bring about significant environmental improvements and provide the participating States with a basis for co-operation on enforcement and exchange of technical information. Latest developments The UN General Assembly, through resolution A/RES/60/30 of 29 November 2005, invited IMO to review MARPOL Annex V, in consultation with relevant organizations and bodies, and to assess its effectiveness in addressing sea-based sources of marine debris, while welcoming the continued work of IMO related to port waste reception facilities and noting the work done to identify problem areas and develop an Action Plan addressing the inadequacy of such facilities, a draft of which had already been prepared. In addition, the General Assembly, through resolution A/RES/60/31, called upon States, FAO, IMO, UNEP and all relevant organizations and stakeholders to take action to address the issue of lost or abandoned fishing gear and related marine debris, including through the collection of data on gear loss, economic costs to fisheries and other sectors and, of course, the impact on marine ecosystems. Having noted the above decisions of the General Assembly, as well as other actions regarding the launch of an “assessment of assessments” in preparation for the regular process for global reporting and assessment of the state of the marine environment, including socio-economic aspects, the IMO’s Marine Environment Protection Committee (MEPC), at its 64th session in March 2006:
THE LONDON CONVENTION AND PROTOCOL The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 (the London Convention) is one of the oldest global conventions to protect the marine environment from human activities and has been in force since 1975. Its objective is to promote the effective control of all sources of marine pollution and to take all practicable steps to prevent pollution of the sea by dumping of wastes and other matter. Currently, 81 States are Parties to this Convention. The term “dumping” is defined in the Convention as any deliberate disposal at sea of wastes and other matter from vessels, aircraft, platforms or other man-made structures at sea, including the vessels and other structures themselves. Dumping does not include the disposal at sea of wastes or other matter incidental to, or derived from, the normal operations of vessels, aircraft, etc. The Convention fully prohibits the dumping of “persistent plastics and other persistent synthetic materials, for example, netting and ropes, which may float or may remain in suspension in the sea in such a manner as to interfere materially with fishing, navigation or other legitimate uses of the sea.” The disposal of vessels and platforms or other man-made structures at sea is, in principle, allowed under the Convention, if certain conditions are met, and “provided that material capable of creating floating debris or otherwise contributing to pollution of the marine environment has been removed to the maximum extent.” The 1996 Protocol to the London Convention 1972, which entered into force on 24 March 2006(with currently 27 Contracting Parties), and which will eventually replace the London Convention, operates on the basis of a full ban on dumping, except for specific wastes listed in its Annex 1. Dumping at sea of marine litter in any form or shape is prohibited. In view of their broad objective to promote the effective control of all sources of marine pollution, both the London Convention and Protocol oblige Contracting parties to co-operate with all international agreements and programmes to prevent and control the dumping of marine litter from whatever source. CONCLUDING REMARKS It can be safely concluded that there exists an adequate international regulatory framework in place to prevent and control pollution of the sea by garbage/litter from ships, embodied in the MARPOL Convention with its associated manuals and guidelines, and in the London Convention and Protocol. At the same time we have to admit that the seas continue being fouled by debris, although it is difficult to quantify the proportion of garbage that is contributed by ships and other floating craft, in comparison to that produced by land sources, be it deliberately or as a consequence of natural disasters, such as floods, tidal waves, etc. Regardless of how small or big the proportion attributed to ships is we stand a good chance of drastically reducing the ship-originated input by ensuring that the abovementioned instruments are ratified and fully implemented by all flag and coastal States. We have to recognize also that developing countries may find it difficult to implement what represents a rather complex body of international legislation, such as MARPOL, and that the only practicable way of addressing these difficulties is through technical co-operation. IMO, with its very scarce resources, has to juggle the many needs identified under the more than 40 Conventions and Protocols under its aegis against the inappropriate funds available, with the conclusion that more resources are needed to continue building on past achievements, in particular relating to port reception facilities, on which IMO has been working for a long time in collaboration with many coastal developing countries. This, being a global problem, requires global solutions and, as such, there is a need for a serious funding commitment from the international community, in particular those countries and industry organizations able to contribute funds and expertise. It is, therefore, imperative that any action in that regard is taken in a way that efforts are not duplicated or resources are wasted, and this can only be achieved when all stakeholders consult with each other and agree to collaborate. IMO stands ready and willing, as corroborated by its Marine Environment Protection Committee, to co-operate with sister UN Organizations such as UNEP and FAO, with regional centres such as NOWPAP- MERRAC, with individual countries and also with the shipping industry where appropriate, in order to rid the seas of ship-generated garbage/litter/debris, as part of the overarching goal of preventing litter from all sources from entering the marine environment. APPENDIX List of IMO publications and documents relating to the Prevention of Marine Pollution by Garbage from Ships
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