Why are we so timid on ship-source pollution?

Henrik Ringbom,
Professor of Maritime Law,
University of Turku,

Head of Research,
Åbo Akademi University,

Professor II,
Scandinavian Institute of Maritime Law,
University of Oslo,

One of the most often repeated mantras in shipping is that a global industry needs global rules. But is it really true? Is there some sort of natural law making global rules always more effective in shipping, just because ships move from one area to another? Could it not be that regional requirements would sometimes be more effective to deal with regional problems in specific areas, such as the Baltic Sea?

Of course, global rules of worldwide applicability is usually the ideal solution for ensuring both awareness and implementation of maritime requirements. The International Maritime Organization (IMO) has mostly provided appropriate regulatory responses to key environmental threats posed by ships (the most notable exception, so far, being greenhouse gases, but that is a different matter). IMO pollution rules at times acknowledge regional differences and the main global environmental convention for shipping (the MARPOL Convention) accepts tighter requirements in ‘special areas’, such as the Baltic Sea, in several instances, including oil discharges and air emissions (emission control areas).

But what if that does not work? If the global reaction is lacking or entirely insufficient in terms of the protection needs of a given region, should one still insist on the need for global rules and refrain from implementing any requirements until a global consensus is reached?

A good example could be eutrophication, which is commonly regarded as the main environmental threat to the Baltic Sea. Yet it is not a big threat to the marine environment worldwide, or even in the EU, and the problems may therefore not be well understood, neither by mariners nor by regulators. Despite decades of activities at IMO by the Baltic Sea states, global shipping rules contain few standards aimed at curbing eutrophication. The original MARPOL Annex IV on sewage discharges took several decades to enter into force; the revised one in force now permits discharges of sewages if done slowly and at some distance from shore. The stricter standards for the Baltic Sea agreed in 2011 are only now becoming applicable, but only for passenger ships. Rules for grey water, which includes significant amounts of nutrients, do not exist at all, while food waste is permissible to discharge, if comminuted or ground, 12 nautical miles from nearest land.

Yet, the Baltic Sea states have not decided to take the matter in their own hands by introducing supplementary national or regional rules to stop this kind of additional nutrition load from being introduced in the Baltic Sea from ships. The question is why?

There are some objections that are commonly raised when “unilateral” rules in shipping are discussed. A first one is that regional rules will negatively affect the competitiveness of the region’s own shipping operators. However, that is only true if the rule targets the nationality, or flag, of ships. As far as environmental (or safety) rules are concerned, there is normally no reason to target certain flags only, as flag changes are notoriously easy to make in shipping. Such rules, therefore, should apply to all ships operating in the region, irrespective of flag.

Second, it is a common objection, and misunderstanding, that international law prevents states or regions from imposing their own environmental requirements rules on international shipping. To begin with, express law of the sea limitations in this regard only concern national rules targeting ships that are merely passing through the coastal waters of the regulating state (without stopping in one of its ports). In the case of pollution standards, not even that is entirely true, given that all states have a right to implement their national pollution and discharge requirements in their territorial sea, as long as those requirements do not have the practical effect of denying ships their right of (innocent) passage. More importantly, there are no corresponding limitations for states to impose requirements on ships that enter their internal waters or ports. In the absence of rules to the contrary, port states can thus make compliance with their own environmental standards a condition for ships to access their ports. If states in the region adopt such rules in concert, the practical effect will be a regional rule covering all shipping in the region. This is particularly so in the Baltic Sea, where there is no through traffic and all ships in the region thus is bound for one of the region’s ports.

A third common objection is that regulation of shipping requires global rules from a practical point of view. Chaos would reign, it is said, if the rules and standards would be different in each region or state, in view of the global nature of the business. Apart from the fact that very many ships in the Baltic Sea are not in global trade at all, but exclusively operate in the region, the argument is only relevant for issues that cannot be affected operationally during a voyage, such as typically how the ship is constructed, designed, manned or equipped. For the rest, national rules would not give rise to chaos, just another thing that the ship’s crew has to comply with. There is no serious practical difficulty involved in demanding that ships do not release their wastes into the sea, and that they can demonstrate that in the port, even if such requirements extend beyond what is internationally regulated.

Nor is it an infringement of any navigational right to apply proper sanctions to any violation of such rules. Even for violations of existing IMO requirements there is a tendency to be very cautious with sanctions for pollution, to the extent that violation is noticed and brought to justice at all. It is not clear who is served by light sanctions for violations of – national or international – pollution rules.

Choosing between global or regional rules to protect the Baltic Sea is not an either-or question. Both types of rules may be perfectly justifiable and may indeed support each other. The experience by the EU over the past decades illustrates that unilateral standards may in effect also serve to encourage the global regulator to adopt corresponding standards.

Such standards could be introduced at national, HELCOM or EU-level, as appropriate. In the end, it is a matter of policy whether such complementary standards are desirable. The point of this text is to highlight just that. While it may be convenient to explain the absence of Baltic Sea-wide rule on ship-source pollution by referring to legal obstacles, it does not suffice as an explanation. The law of the sea includes no freedom for ships to pollute, even in the absence of IMO prohibitions. In view of that, could it not be expected that a regional sea, the uniqueness of which is so often emphasized, should be protected by some unique legal measures too?

Email: henrik.ringbom@abo.fi

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