Enforcement of the 1973 Marine Pollution Convention

Just over three years have elapsed since the 1973 International Marine Pollution Conference adjourned in London. The conference had completed its task of elaborating a comprehensive new treaty designed to con­trol pollution of the marine environment. The steps necessary to place the new treaty into effect would now have to be taken by the governments through the ratifi­cation process and by the Intergovernmental Maritime Consultative Organization (IMCO).

Originally chartered to deal with matters of mari­time safety, with emphasis upon ships and their personnel, IMCO had been engaged for some years in environmental protection work. But the new convention posed new challenges. Implementation would require concerted ef­forts to devise technical solutions to construction and equipment problems, translation of broad regulatory schemes into specific applications, and intensive education of representatives of countries which had never before been concerned with such matters.

IMCO created a new permanent technical committee, the Marine Environment Protection Committee (MEPC), to tackle these tasks. The new body was char­tered to discharge the technical and administrative responsibilities of IMCO under the several international pollution conventions which assign functions to the orga­nization. Membership in MEPC is open to all member states of IMCO (now 100 in number) as well as to states which are parties to conventions which the committee serves. The United States has actively participated in the first six sessions of MEPC. These sessions were devoted principally to several technical issues, the resolution of which is essential to ensure sufficient ratifications to bring the 1973 convention into force.

To date, 16 governments (including that of the United States) have signed the 1973 Marine Pollution Convention, thereby signifying their intent actively to consider ratification and national implementation. Three governments (Jordan, Kenya, and Tunisia) have ratified thus far. Fifteen countries representing 50% of the world’s merchant tonnage must ratify the convention in order to bring it into force.

In the United States, implementing legislation has been drafted and is currently in the process of review and agency clearance within the executive branch. Consider­able interest has been voiced by members of Congress in moving this legislation forward. After the proposed bill clears the executive branch, it will be transmitted to both houses of Congress at the same time the convention itself is forwarded to the Senate for advice and consent. But the U. S. Government has not waited for the laborious ratification process to be completed before implementing some of the protective features of the convention. Certain provisions of the 1973 convention, affecting both foreign and U. S. oil tankers entering U. S. ports, are already being implemented by national regulations under exist­ing law.

The fifth session of the Third United Nations Con­ference on Law of the Sea adjourned in September 1976 having reached agreement on few of the issues before it- The next session is scheduled to begin in May 1977- This is the conference to which the 1973 Marine Pollu­tion Conference deferred on many issues, chiefly jurisdic­tional in nature. The enforcement of the 1973 conven­tion therefore remains a subject bounded by uncer­tainties. And the forum responsible for settling many of these uncertainties is one in which protection of the marine environment ranks very low on a list of issues dominated by political and economic considerations.

Lieutenant Williams describes succinctly where uie find ourselves today with regard to international luu> designed to protect the marine environment. To the Laui of the Sea Conference is left the role of outlining the next chapter in this unfinished story.

In October 1973, official delegations from the United States and 70 other nations met at Church House in London to attend the International Confer­ence on Marine Pollution. The conference was held at the invitation of the Intergovernmental Maritime Con­sultative Organization (IMCO), a specialized agency o( the United Nations. Its primary purpose was the final negotiation and adoption of a new International Con­vention for the Prevention of Pollution from Ship^s> 1973. The new convention, upon its entry into force, will supersede the International Convention for the Prevention of Pollution of the Sea by Oil, 1954, ^aS amended, as between parties to that convention.

Prior to the 1973 conference, IMCO had already p^r°' vided the forum for the development of an important series of international agreements. Each of these agree­ments is a constituent of a comprehensive scheme f°^r the international control of maritime sources of ocean pollution. In cases of maritime casualties involving oil on the high seas, the 1969 Intervention Convention authorizes a state to intervene if its coastlines or related interests are endangered.¹ The 1969 Civil Liability Con-

Please turn to page 45 for footnotes.

vention assigns strict liability to the owner of the vessel carrying oil, limiting his total liability for a single ^lr»cident to $14 million, unless the incident was the result of the "actual fault or privity of the owner,” in 'which case his liability is unlimited. The 1971 Com­pensation Fund Convention creates an international fund, financed through contributions levied on states which receive oil, to provide "compensation for pollu­tion damage to the extent the protection afforded by rhe Liability Convention is inadequate.”

In addition to existing or prospective IMCO agree­ments, an international conference convened at the 'nvitation of the government of the United Kingdom produced the 1972 Ocean Dumping Convention, which prohibits or closely regulates the deliberate dis­posal at sea of certain dangerous or potentially danger­ous substances. And the Conference on the Law of the Sea may negotiate a convention which will address, among other things, marine pollution resulting from exploration and exploitation of the seabed.²

The 1954 Convention: Within the context of these ^agreements, intended to provide an international hamework for the control of marine pollution and its consequences, the 1954 Oil Pollution Convention, as ^attiended in 1962 and currently in force, is an inade­quate and ineffective instrument of international law. The scope of the 1954 convention is far narrower than the broad regulatory scheme required to meet the prob­lems posed by today’s shipping volumes, patterns, and practices. Equally important, and the problem with which this article is concerned, is the fact that the 1954 convention has gone largely unenforced by those states that did not wish to enforce it against their own vessels ^and has proved largely unenforceable by those states that sought to protect ocean waters near their shores.

The experience of the 1954 convention suggests four major shortcomings within its provisions which have Undermined its enforceability. First, it prohibits certain discharges of oil or oily mixtures, but defines an "oily mixture” as "a mixture with an oil content of 100 parts °^r more in 1,000,000 parts of the mixture.” This defini­tion yields no practical means for a state investigating a Pollution incident to demonstrate that the oil content °f a discharge exceeds the lawful limit. Gross violations may be inferred from photographs of the effluent above the waterline or of the slick in the wake of the ship. But less obvious violations may be demonstrated con­clusively only by obtaining a sample of the ship’s effluent before it is discharged into the sea—an imprac­tical procedure at best.

Second, although the 1954 convention prohibits cer­tain discharges, it requires no measures to prevent such discharges. This shortcoming is really one of scope rather than enforceability, at least until the 1971 amendments to the 1954 convention enter into force. These amendments include requirements for tankers ordered or delivered after certain dates to be constructed in accordance with specific tank arrangements and tank size limitations. But failure to comply with these re­quirements is not a punishable offense under the con­vention. Furthermore, the provisions of the amend­ments authorize a state to deny access to its ports or offshore terminals only if it has "clear grounds” for believing that a tanker does not comply with applicable construction requirements and only after consultation with the government of the state under whose author­ity the ship is operating (the "flag state”).³ There is no explicit recourse for a state once a foreign tanker has entered its port or offshore terminal. It follows that the third major shortcoming of the 1954 convention is that it provides no specific authority for a state to inspect foreign ships in its ports or offshore terminals in order to detect either unlawful discharges or violations of construction requirements. The single exception is in­spection of the "Oil Record Book” in which the ship is required to record certain oil handling operations.

The fourth shortcoming of the 1954 convention, and a particularly critical one, is that no matter where a violation occurs, only the flag state of a ship may institute official proceedings against the owner or mas­ter of that ship, provided it is satisfied that sufficient evidence of an alleged contravention is available in the form required by its law. Enforcement power, in other words, rests ultimately with the flag state, in whose interest it is to promote and protect its merchant fleet, rather than to penalize it. The state that wishes to protect its waters from pollution by foreign ships can only refer evidence of violations to a foreign state. In the experience of the 1954 convention, flag state en­forcement, particularly if the flag is one of "conven­ience,” has been virtually no enforcement at all.

Finally, the 1954 convention provides for no applica­tion of its requirements and prohibitions to ships of non-contracting states; it simply cannot be enforced against them at all. Such ships enjoy a competitive advantage over the ships of contracting states, since the latter must bear the additional costs of complying with the convention’s requirements. It is neither fair nor efficacious to place ships complying with pollution preventive measures at an economic disadvantage.

The 1973 Convention: The International Convention for the Prevention of Pollution from Ships, 1973, was intended from its inception—in the aftermath of the Torrey Canyon catastrophe in 1967—to be a far broader, stronger, and more enforceable instrument of law than the 1954 convention.⁴ At every stage of the negotiations there were attempts by delegations representing coun­tries with large maritime fleets or vital trade interests to weaken its provisions. As finally adopted, the 1973 convention broadly addresses the problems of prevent­ing pollution of the marine environment by oil and other harmful substances from ships and contains tech­nical regulations including both operational discharge standards and design and construction standards for tankers and other vessels. Its enforcement provisions remedy, to some extent, each of the weaknesses identi­fied in the 1954 convention. And yet, further provisions which would have greatly facilitated rapid and vigorous enforcement of the 1973 convention were eventually rejected by the conference despite cogent and persistent argument by the U. S. delegation.

Prior to the conference in October, a draft conven­tion had been developed—under the aegis of IMCO— which was to serve as a working document for the conference. Although the draft convention contained many alternative provisions and much tentative lan­guage, its outlines were distinct. It consisted of approx­imately 20 articles, which would establish the general obligations of the contracting states, and a set of tech­nical annexes containing regulations which would im­plement specific standards, requirements, and prohibi­tions. Annex I contained regulations for the prevention of pollution by oil; Annex II dealt with pollution by noxious liquid substances, other than oil, carried in bulk; Annex III covered harmful substances carried in packages, containers, portable tanks, or road and rail tank wagons; and Annexes IV and V regulated dis­charges of sewage and garbage from ships, respectively. This writer addresses only the general enforcement issues considered in debate over the articles and one proposal regarding the enforcement of Annex I.

The draft convention avoided the first weakness of the 1954 convention, as presented above, by incorporat­ing the provisions of the 1969 amendments (not yet in force) to the 1954 convention. These prohibit dis­charges of oil or oily mixtures from ships within certain distances from land and define an oily mixture as a mixture with any oil content. Within 50 miles from land for tankers and within 12 miles for other ships, no effluent sample or educated inference would be neces­sary to demonstrate some arbitrary concentration. But it would still be necessary, within these distances, to show

Although the 1973 convention has not yet come into force, certain of its provisions, affecting both U. S. tankers such as the Williamsburgh and foreign tankers, are now being implemented by national regulations under existing law.

that a detected discharge came from a particular ship—^a difficult task in a busy port, for example. And beyond these distances, it would be necessary to prove that a discharge of oil violated standards regarding the pet' missible "instantaneous rate of discharge of oil content from tankers and the permissible "oil content of the effluent” from other ships.

In order to facilitate enforcement of the new oil discharge requirements, the United States proposed the adoption of an evidentiary rule regarding the weight and effect to be given to evidence of visible traces of oi in the water in the vicinity of a ship. There was wide agreement among the delegations preparing the draft convention that it was desirable to include a provision of this kind in the regulations. But no agreement was reached on the legal principles, compatible with the various legal systems in potentially contracting states, to form the basis of an evidentiary rule. The rule proposed by the United States provided that:

"Evidence of visible traces of oil on or below the surface of the water in the vicinity of the ship or its wake which, taking into account existing wind an sea conditions and the track and speed of the ship> may reasonably be attributed to a discharge from that ship, shall be evidence sufficient to establish a viola­tion . . . .”

If a state were to establish a violation under this rule, rt would be incumbent upon the owner or master charged to present probative evidence that the ship did not

discharge oil, or that the discharge did not violate the regulations.

The United States worked with other delegations, Particularly those representing the continental European countries, to draft this provision in widely acceptable ^tcrms. Despite continued U. S. efforts, the conference eventually rejected this principle, called in debate a reversed burden of proof,” as a requirement to facili­^tate enforcement of the oil discharge standards and prohibitions. The provision finally adopted encourages ^states to investigate the facts bearing on a possible ^v>olation when visible traces of oil are observed, but it does not constitute a mandatory rule of evidence. The United States, of course, is free to apply within its Jurisdiction whatever rules of evidence it considers appropriate to ensure effective enforcement of the 1973 convention. If the federal courts sustain civil penalty procedures now employed under a major national envi­ronmental statute, then it is likely that the United Crates will adopt a strong evidentiary rule, similar to the ^vcrsion originally proposed, in implementing the new convention within its jurisdiction.⁵

Unlike the 1954 convention, that of 1973 does not Merely prohibit certain discharges of oil and other harmful substances, but also contains extensive regula- Uons prescribing construction criteria, equipment, and °perating procedures for the prevention of such dis­charges. It was not clear at first, however, how effec- ^tlvely these regulations were to be enforced. The draft convention contained two alternatives regarding penal- I'cs and violations. One alternative prohibited only discharges of harmful substances in contravention of ihe regulations and required states to establish penalties severe enough to discourage such discharges. The other Prohibited any violation of the requirements of the draft convention and required appropriate penalties. *hhe first alternative did not include even a punitive recourse available under the 1954 convention for failure ^to maintain the oil record book properly. Eventually, however, the conference adopted the broader alterna- ^tlve, making any violation—including failure to com­ply with preventive or record-keeping requirements, as *ell as discharge prohibitions—subject to penalty, ac­complishing a major improvement over the 1954 con­^vention.

But if a prohibition of any violation of the new convention were to be effectively enforced, a state ^ould need commensurately broad authority to inspect foreign vessels in its ports and offshore terminals— ^authority conspicuously absent from the 1954 conven- fion. An article of the draft convention regarding in­fection of ships authorized officers of a state to inspect foreign vessels subject to the convention in the ports ^a°d offshore terminals under the jurisdiction of that state. This inspection was to be limited, however, to verifying that the ship carried on board a valid certifi­cate, as required by the draft convention, issued by the flag state of the ship and attesting that her structure and equipment complied with the regulations, unless there were "clear grounds” for believing that the ship’s con­dition or equipment did not correspond substantially with the details of the certificate. The United States proposed that reasonable grounds rather than clear grounds should be sufficient to justify inspection of a foreign ship beyond her certificate or denial of access to a state’s ports or offshore terminals. The U. S. delega­tion argued that the preventive requirements of the draft convention would be significantly strengthened if a state were able to inspect and exercise control of ships in its ports and offshore terminals without virtually establishing a violation as a precondition for inspection. The conference rejected this argument, and the article as adopted specified "clear grounds.”⁶

The subsequent article of the draft convention, how­ever, dealt with the detection of violations and con­tained additional inspection authority. Under its provi­sions, the officers of a state could inspect a ship subject to the convention while "in loading ports” in order to determine whether a harmful substance had been dis­charged in contravention of the regulations. The con­ference, without dissent, broadened this authority to apply in any port or offshore terminal, not merely in loading ports. But it was quite apparent to some dele­gations, particularly that of the Soviet Union, that this inspection authority was vague and unqualified, tend­ing to mitigate the severely restrictive "clear grounds” required for extensive inspection under the preceding article. The Soviet Union tried to limit or condition this inspection authority, but was unsuccessful. As finally adopted, the two articles represent a compromise between those delegations that wanted to limit severely the areas of a foreign ship which could be inspected or the circumstances under which such inspections could be conducted and those delegations, in particular that of the United States, that wanted to impose an obliga­tion on any state to inspect a ship whenever reasonable evidence of a violation was available.

The conference confronted another major issue in the attempt to incorporate in the new convention an en­forcement scheme more potent than the flag state en­forcement which had proved so ineffective under the 1954 convention. There seemed little doubt, either during preparation of the draft convention or at the conference, that the right to institute official proceed­ings against a ship would be extended to states other than the flag state of the ship. The debate focused on how far the new convention should extend enforcement rights and duties.

f

■ gUAR°

Booms were laid by the Coast Guard to contain some of the 250,000 gallons of oil that formed along the shore after having been spilled into Chesapeake Bay from a barge that ran aground in rough weather in February 1976.

The draft convention contained provisions, eventu­ally adopted by the conference, requiring that any vio­lation of the convention be prohibited under the law of the flag state of the ship wherever the violation occurs and that a violation within the jurisdiction of any state be prohibited under the law of that state. When a violation occurs within the jurisdiction of a state, it must either institute its own proceedings against the ship or furnish evidence of the violation of the flag state of the ship. But when a violation occurs beyond the jurisdiction of any state, only the flag state may take penalty action against the ship.

The United States and Canada proposed an addi­tional enforcement mechanism which would authorize a state into whose ports or offshore terminals a ship entered (the "port state”) to institute proceedings against that ship or her master for a violation of the requirements of the convention, no matter where the violation occurred. The port state would notify the flag state of its proceedings, but the flag state would have no preemptive right to prosecute. A combination of flag and port state enforcement promised to be both more vigorous and more rapid, obviating delays prior to the commencement of proceedings for a ship ¹⁰ return to home port.

In the preparation of the draft convention, the p°^rt state enforcement proposal was a minority, but not isolated, view. A few delegations supported it, a fe^ were opposed outright, and others merely expresse reservations. A strong feeling among several deleg^a' tions, irrespective of their initial leanings on the issue> was that the concept was new—even "revolution­ary”—and required careful consideration prior to nego­tiations at the conference. In debate during the confer^­ence, however, majority opposition to the port state enforcement proposal was firm. A few delegations were opposed to the principle involved, but most opponents argued that adoption of a port state enforcement scheme in this forum would prejudice consideration ⁰ similar schemes at the then-forthcoming Law of the Sea Conference, where enforcement of vessel pollution standards would also be an issue. The argument was a compelling one, and it placed the U. S. delegation in an awkward, and probably untenable, position—supp°^rt' ing the adoption of port state enforcement while itsel opposing another major provision on the basis of possi­ble prejudice to the Law of the Sea Conference. In the end, the conference rejected the concept of port state enforcement under the 1973 convention, despite what its advocates considered significant concessions in thei^f proposal.

The U. S. delegation was more successful in arguing for the application of the new convention to the ship^[1]

°f non-contracting states. The United States proposed that five years after the entry into force of the conven- ^tlon, states should apply its provisions to any ship, ^regardless of whether the flag state of the ship is a party to the convention. The original proposal obli­gated states to deny permission to enter or leave their ports to ships of non-contracting states not in compli­ance with the convention. This provision was too strong for most delegations. But even though the con­^Cept was widely acknowledged as a radical departure from existing international law, the conference eventu­ally adopted a weakened version of the U. S. proposal ^hich preserved its basic principle. The convention ^re<t|uires states to apply its requirements as necessary to ^ensure that the ships of non-contracting states are not grven more favorable treatment than the ships of con­tracting states. It is a matter for each state to interpret and apply this somewhat vague requirement within its °wn jurisdiction.

Conclusion: This brief discussion of the enforcement °f the 1973 convention is not intended to be a compre­hensive analysis of all enforcement aspects of so com­plex an instrument of law. There are, for example, numerous specific enforcement provisions within ^nnex II of the new convention which have not been naentioned at all. But the issues which have been con- ^Sldered are important for two reasons. First, they grew °ut of widely recognized shortcomings in the enforce­ment provisions of the 1954 convention and led to the adoption of new provisions in the 1973 convention 'Utended to alleviate these shortcomings. Only a period °f experience after the entry into force of the 1973 convention will demonstrate whether these enforce­ment provisions, in fact, make the new convention strong where those of 1954 were gravely weak.

Second, debate over these issues resulted in the adop- ^tlQn of provisions which will place the United States in ^a strong position to enforce the 1973 convention within its own jurisdiction. During this debate, of course, the U. S. delegation argued vigorously for more affirmative provisions which would not only grant a state broad enforcement power regarding ships or vio­lations within its jurisdiction, but also require a state to ^take enforcement action under certain circumstances and allow a state to take enforcement action against a ship which enters its jurisdiction if it has violated the convention beyond that jurisdiction. These arguments largely failed in the face of the instinctive conservatism °f delegations representing countries with significant maritime interests. But the resolution of debate gener­ally found broad and strong enforcement authority for states to protect waters within their jurisdictions to be ^an acceptable compromise position.

This resolution means that, when the new conven­tion enters into force, the United States, within its jurisdiction, may apply a strong evidentiary rule regard­ing the presumption of a discharge of oil in violation of the regulations, may take penalty action against the master of a ship flying the flag of a contracting state for violation within U. S. jurisdiction of any of the re­quirements of the convention, and may apply those same requirements to the ships of non-contracting states to whatever extent it deems appropriate. In tak­ing these actions, the United States may employ broad inspection authority provided for the verification of unlawful discharges. Regardless of the degree to which the new convention will be effectively enforced beyond U. S. jurisdiction, it should prove to be a powerful new instrument for the protection of waters within U. S. jurisdiction.

Mr. Williams now holds the rank of lieutenant on inactive duty in the U. S. Coast Guard Reserve. After graduating from Officer Candidate School in 1971, he served at Coast Guard Headquarters in the Plans Evalua­tion Division and Marine Environmental Protection Divi­sion. In 1973, he was assigned to the interdepartmental task group which prepared the U. S. positions for the Marine Pollution Conference. In October 1973, he attended the conference in London as a member of the U. S. delegation. Prior to entering the Coast Guard, Mr. Williams graduated from the University of Michigan. He is currently attending the University of Chicago Law School. ^{[2] [3] [4] [5] 5 [6]}