“May those born of thee, O Earth, be for our welfare, free from sickness and waste, wakeful through a long life, we shall become bearers of tribute to thee. Earth my mother, set me securely with bliss in full accord with heaven, O wise one, uphold me in grace and splendor.”
(From the Atharva Veda – Hymn to the Earth – Bhumi-Sukta)
Man can not sustain his life alone and independent in this world. He has to depend upon his environment to earn his bread. Even vedas attach a paramount importance to the environment. Human beings are interconnected with the Earth, Sun, Moon and other planets of the universe. Maintenance and protection of our environment is the sine qua non of human welfare. Vedas attach an onus upon the human beings to fulfill the task of environment management, afforestation, habitation, non-pollution, protection and other pious tasks pertaining to our environment. The human beings are also endowed with the pious duty of protection and nourishment of the plants and vegetation.
But since the advent of the 18th century, that marked the beginning of the industrial revolution and subsequent breakthrough in the invention and development of modern modes of transport and communication, the task of environment protection has become more onerous and full of struggle.
That, the modes of transport and industrialisation have posed a threat to our environment, was noticed at subsequent stages of development of the nations. Both the World Wars have evoked much popular concern of the global community towards the environment. As a result various conventions and protocols have been signed and obliged to by the world community. The Stockholm Conference on Human Environment (1972); United Nations Environment Programme (UNEP); United Nations Conference on Environment and Development (UNCED) popularly known as Earth Summit and other such conventions have played their due role in shaping the International environment law.
India has some environment-friendly legislations that are responsible for the safeguard of our environment. These legislations are the Environment (Protection) Act, 1986; the Water (Prevention and Control of Pollution) Act, 1974; the Air (Prevention and Control of Pollution) Act, 1981; the Biodiversity Act, 2002 etc.
Of all the ingredients of environment, the water bodies like seas, oceans, rivers, lakes etc., are of utmost essence as compared to other ingredients. But to its misfortune, most of the water bodies are at the verge of extinction. The water bodies are no more suitable for the daily household uses, thanks to mass contamination caused by various factors like industrial wastes and other garbages.
If we go through the international statistics, ships and vessels have contributed a lot towards the contamination of the sea, along with their contribution in narrowing the down gaps between two far-flung destinations.
INTERNATIONAL CONCERN OVER ENVIRONMENT PROTECTION.
It is not a very easy task to define the environment in the international regime. Even most of the treaties, declarations, code of conduct, guidelines etc. fail to define the term ‘environment’ in a very explicit way. It is a very tedious task to outline and restrict the scope of such an ambiguous term. The Declaration of the 1972 Stockholm Conference on the Human Environment (UNCHE) merely refers indirectly to man’s environment and adds that the natural and man-made aspects of man’s environment are essential for his well-being and enjoyment of basic human rights. Even the 1992 Rio Declaration on Environment and Development refers to environmental needs, environmental protection, so on, but nowhere does it identify what these include . The European Commission, in developing an ‘Action Programme on the Environment’, defined ‘environment’ as ‘the combination of elements whose complex inter-relationships make up the settings, the surroundings and the conditions of life of the individual and of society as they are and as they are felt’ .
POLLUTION CAUSED BY SHIPS.
Of all kinds of pollution caused by ships, the marine pollution caused due to the oil spills has evoked the concern of the international community. The 1982 United Nations Law of the Sea Convention defines “pollution of marine environment” as “the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities” . The marine pollution caused by ships from oil spills are either by the way of operational discharge or by accidental damages. The earlier ship accidents causing the oil pollution of the marine environment have always resulted in the large scale pollution of the marine environment.
Major incidences of marine pollution caused by ships.
Torrey Canyon Disaster . On 18 March, 1967 the ‘tanker Torrey Canyon’ struck Pollard’s Rock in the Seven Stones reef between the Scilly Isles and Land’s End, England. She was the first of the big supertankers, carrying a cargo of 120,000 tons of oil. The oil leaked from the ship (31,000,000 gallons) and spread along the sea between England and France, killing most of the marine life it touched along the whole of the south coast of Britain and the Normandy shores of France, and blighting the region for many years thereafter.
Amoco Cadiz . On 16 March 1978, the oil tanker Amoco Cadiz, transporting 227,000 tonnes of crude oil, ran aground on Portsall Rocks, Brittany coast after a failure of her steering mechanism, long negotiations with a German tug boat and two unsuccessful towing attempts. The whole cargo spilled out as the breakers split the vessel in two, progressively polluting 360 km of shoreline from Brest to Saint Brieuc. This was the largest oil spill by tanker grounding ever registered in the world. It led the French Government to revise its oil fighting plan (the POLMAR plan), to acquire equipment stocks (POLMAR stocks), to impose traffic lanes in the Channel and to create Cedre.
The French Government along with damaged villages prosecuted the Amoco company in the United States. After 14 years of difficult proceedings, they eventually obtained 1,257 million Francs (190 million Euros), half the claimed amount.
Exxon Valdez . On March 24, 1989, the tanker Exxon Valdez, en route from Valdez, Alaska to Los Angeles, California, ran aground on Bligh Reef in Prince William Sound, Alaska. The vessel was traveling outside normal shipping lanes in an attempt to avoid ice. Within six hours of the grounding, the Exxon Valdez spilled approximately 10.9 million gallons of its 53 million gallon cargo of Prudhoe Bay crude oil. Eight of the eleven tanks on board were damaged. The oil eventually laid impact over 1,100 miles of non-continuous coastline in Alaska, making the Exxon Valdez the largest oil spill to date in U.S. waters.
Cases on marine pollution caused by ships.
• Baker v. Exxon [554 U. S. ____ (2008)] . The case was initiated in the wake of the marine pollution caused due to oil spill by the tanker Exxon Valdez in the US waters. The Supreme Court of the United States left the Ninth Circuit’s opinion undisturbed, regarding the corporate liability for punitive damages, based on tha acts of the managerial agents. But it also held that the punitive damages award was excessive as a matter of maritime common law and remitted the punitive damages award against Exxon to $2.5 billion.
• United States of Ameriac v. Kun Yun Jho, (465 F. Supp. 2D 618, 625) . In this case the question of jurisdiction arose as to charging of the non-US vessel personnel with the crime under the U.S. Act to Prevent Pollution from Ships (APPS).
The facts of the case were that the Pacific Ruby, a ship owned by OSG (Overseas Shipholding Group, Inc.), used to transfers bulk petroleum from off-shore oil tankers to ports along the Gulf of Mexico. Jho served as the Chief Engineer on board the Pacific Ruby, a foreign-flag (i.e., non-U.S.) tanker, that was apparently engaged in lightering operations from off-shore tankers to ports along the Gulf of Mexico. A whistleblower onboard the vessel alerted the Coast Guard to allegedly unlawful discharges from the vessel and also alleged that Jho had tampered with the oily water separator system. In a subsequent Coast Guard inspection, the Coast Guard discovered evidence corroborating the whistleblower’s allegations.
Reversing the lower court’s dismissal of criminal charges against Kun Yun Jho (“Jho”) and Overseas Shipholding Group, Inc. (“OSG”), the U.S. Court of Appeals for the Fifth Circuit, the Court decided that the sources of international law did not limit the government’s jurisdiction to prosecute violations of domestic law committed in a U.S. Port.
United States v. Abrogar, (459 F.3d 430) . In this case the U.S. Court of Appeals explained that the U.S. Act to Prevent Pollution from Ships (APPS), by its express terms, applies only to U.S.-flag vessels wherever located and to foreign-flag vessels only while in the navigable waters of the United States.
In this case, Noel Abrogar, a Philippines citizen, was the Chief Engineer on the Panamanian-flag vessel Magellan Phoenix in early 2005. During his time on board, he ordered wrongful discharges of oily wastes into the sea and was aware of other wrongful discharges, all of which occurred in international waters. To conceal the wrongful discharges, he made a number of false entries in the ship’s oil record book. In March 2005, he presented the oil record book with the false entries to Coast Guard inspectors and lied to them about the discharges. Abrogar later admitted to the wrongful discharges and the false oil record book entries. Pursuant to a plea agreement, Abrogar eventually plead guilty to a single charge of failing to maintain an oil record book in violation of the APPS. At his sentencing, the district court accepted a six-level enhancement of Abrogar’s base sentence based on the wrongful discharges.
But the US Court of Appeals denied the jurisdiction of the US law and hence it could not be punished by the US law.
THE INTERNATIONAL LAW ON MARINE POLLUTION CAUSED BY SHIPS.
In the wake of pollutions caused by ships, which include oil pollution of seas, pollution caused by garbage from ships, by sewage from ships, by harmful substances in packaged form, air pollution, etc., the international community has taken a grave cognizance of the pollutions caused by ships. It has brought into force various conventions for nipping the sea pollution in its bud. Since the OILPOL Convention of 1954, the chronological development of the international regime has witnessed emergence of many multilateral and regional conventions.
The international law, regional law, European law and some national legislations have attempted to check the marine pollutions caused by ships. At present, there are instruments of few international organizations that have endeavoured to establish the regime for checking the marine pollution caused by ships. These are conventions of the International Maritime Organization (IMO), the general rules in the United Nations Convention on the Law of the Sea (UNCLOS) and the initiatives taken by the European Union and the Bonn Agreement.
A) International Maritime Organization (IMO): It is an specialized organ of the United Nations, which governs marine pollutions caused by ships. The resolutions adopted by the IMO and the rules and rules and the standards contained in the IMO conventions and codes, are the instruments in which legal provisions are contained.
OILPOL Convention, 1954. International Convention for the Prevention of Pollution of the Sea by Oil (OILPOL) was adopted in 1954. It was the first international convention to prevent pollution of sea by oil tankers. The convention governs the operational pollution, caused by discharge of wastes from the ships. The focus of the Convention was narrower as compared to that of the MARPOL 73/78 as it addresses only the prevention of sea pollution, caused by discharge of oil by ships. The United Kingdom can be credited with the initiative to check the oil pollution of seas, which was rampant in first half of the 20th century, as it took initiative to organize a conference in 1954 to check sea pollution. The Conference led to adoption of the International Convention for the Prevention of Pollution of the Sea by Oil (OILPOL). The Convention came into force on 26th July 1958 and was amended in 1962, 1969 and 1971. The Convention tackles the problem of pollution, by seas, caused by discharge of oil. It also lays down the “prohibited zones”, restricting the discharge of oil therein.
The further amendments ramped up the efforts to regulate the discharge of oil and extend the “prohibited zones”.
International Maritime Organisation (I.M.O.) International Maritime Dangerous Goods Code. The Code classifies dangerous goods and sets out the detailed requirements as to marking, labeling, packaging and documentation. This code was amended in 1994.
Convention Relating to the Intervention on the High Seas in Cases of Oil Pollution Casualties (1969). The convention gives special powers to coastal states to take self-help measures to prevent harmful consequences arising out of the maritime casualty, involving oil pollution from ships, beyond the limit of their territorial sea. A protocol adopted in 1994 extends the convention to substances other than oil.
Convention on International Regulations for Preventing Collisions at Sea (COLREGS 1972). The 1972 convention replaces the Collision Regulations of 1960. The Convention gives recognition to traffic separation schemes – Rule 10 gives guidance in determining safe speed, the risk of collision and the conduct of vessels operating in or near traffic separation schemes.
International Convention for the Safety of Life at Sea (SOLAS 1974/78)). The SOLAS Convention is generally regarded as the most important of all international treaties concerning the safety of merchant ships. The first version was adopted in 1914, in response to the Titanic disaster, the second in 1929, the third in 1948, and the fourth in 1960. It became clear that it would be impossible to secure the entry into force of amendments within a reasonable period of time.
As a result, a completely new Convention was adopted in 1974 which included not only the amendments agreed up until that date but a new amendment procedure – the tacit acceptance procedure – designed to ensure that changes could be made within a specified (and acceptably short) period of time.
The Convention contains the provisions relating to the survey of the ships, fire safety provisions, navigation safety provisions, etc .
Convention on the Prevention of Marine Pollution by the Dumping of Wastes and other Matter (London Convention), 1972. The London Convention1972 regulates the dumping of wastes at sea. It regulates the deliberate disposal at sea of certain substances, including oily wastes, dredging and land-generated wastes. Oil pollution caused by operational discharges from the normal operation of ships and pollution caused by maritime casualties fall outside the ambit of the Convention.
Protocol Relating to Intervention on the High Seas in Cases of Pollution by Substances Other Than Oil, (1973). The 1973 Protocol covers the pollution caused by substances other than oil. The Protocol defines “substances other than oil” as:
a) the substances enumerated in the list prepared by the appropriate body of IMO and annexed to the Protocol. This list has been updated updated in 1991, 1996 and 2002; and
b) those other substances which tend to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.
MARPOL Convention, 1978. International Convention for the Prevention of Pollution from Ships (MARPOL) is a convention that has the objective of preventing the pollution in the marine environment caused by ships from operational or accidental causes. The Convention is the combination of two treaties signed by several nations in 1973 and 1978. The Convention has been updated by amendments through the years.
The Convention is a mechanism to safeguard the marine environment, by preventing the pollution caused by oil, chemicals, and harmful substances in packaged form, sewage and garbage. The Convention is called MARPOL 73/78 as it connotes the sense of “Marine Pollution” and it was signed in 1973 and was modified by the Protocol of 1978 . The 1973 MARPOL Convention had its focus on safe marine environment, by laying down the regulations for preventing the pollution caused by oil, chemicals, harmful substances in packaged form, sewage and garbage. But it did not come into force. The 1978 MARPOL Convention, which absorbed the major provisions of the 1973 Convention, came into force on 2nd October 1983. In 1992, MARPOL 73/78 was amended to make it mandatory for new oil tankers to have double hulls and obliged existing singe-hull tankers to fit double hulls at the latest 30 years after delivery. Provisions regarding reporting of pollution or imminent threats of pollution from the ship to the nearest coastal radio station are contained in Protocol I to MARPOL .
Currently, the MARPOL Convention has six Annexes, out of which Annex I and Annex II are obligatory and other Annexes are voluntary. Following is the table of Annexes:
Annex VI Regulations for the Prevention of Pollution by Oil.
Regulations for the Control of Pollution by Noxious Liquid Substances in Bulk
Prevention of Pollution by Harmful Substances Carried by Sea in Packaged Form
Prevention of Pollution by Sewage from Ships
Prevention of Pollution by Garbage from Ships
Prevention of Air Pollution from Ships
The Annex VI entered into force on 19th May 2005.
International Convention on Oil Pollution Preparedness, Response and Cooperation, 1990 (OPRC). This Convention was adopted by a Diplomatic Conference convened by the IMO in November, 1990. It entered into force in May, 1995. It deals with preparing for and responding to oil pollution incidents from ships and offshore oil exploration and production platforms, sea ports and oil handling facilities. The various articles of the Convention cover the following:
1. The preparation of oil pollution emergency plans by the operators of the above;
2. Oil pollution reporting procedures and the actions to be taken on receipt of such a report;
3. The establishment of national and regional systems for preparedness and response; international cooperation in pollution response;
4. Research and development; and
5. Technical cooperation.
The Convention is designed primarily to assist developing countries to prepare for and respond to major oil pollution incidents.
Civil Liability and Fund Convention, 1992. In 1969, the International Convention on Civil Liability for Oil Pollution Damage (1969 CLC) was signed, which entailed the clause of liability of the oil pollution damage caused by oil tankers. The liability was strict in nature and cast upon the owner of the ship, without any need to prove negligence except in certain circumstances like war and insurrection.
In 1971, International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (1971 Fund Convention) was signed for the purpose of establishment of a fund to provide additional compensation to compensate the victims, fully and adequately, within the limits of the Fund’s total liability.
These conventions were amended in 1992, enhancing the scope of the application. These became the Civil Liability and Fund Convention, 1992.
Protocol on Preparedness, Response and Co-operation to Pollution Incidents by Hazardous and Noxious Substances, 2000 (OPRC-HNS Protocol) . In 2000 a Protocol was introduced extending the provisions of OPRC 1990 to encompass Hazardous and Noxious Substances. The OPRC-HNS Protocol entered into force on 14 June 2007. The Protocol ensures that ships carrying hazardous and noxious liquid substances are covered by preparedness and response regimes similar to those already in existence for oil incidents. Parties to the Protocol are required to establish measures for dealing with pollution incidents, either nationally or in co-operation with other countries.
International Convention on Civil Liability for Bunker Oil Pollution Damage (Bunker Spill Convention), 2001 . This IMO Convention seeks to ensure that adequate compensation is promptly available to persons who are required to clean up or who suffers damage because of spills of ships’ bunker oil, who would not otherwise be compensated under the 1992 CLC. Although strict liability under the Bunker Spills Convention extends beyond the registered owner to the bareboat charterer, manager and operator of the ship, the Convention only requires the registered owner of ships greater than 1,000 GT to maintain insurance or other financial security. The Bunkers Convention did not yet enter into force.
B) Multilateral Conventions on Marine Environment.
• Geneva Convention on High Seas, 1958. The Convention entailed only two provisions regarding marine pollution. Article 24 of the Convention recognized harmful effect of oil pollution caused by ships and off-shore exploitation and exploration. Article 25 required the states to take measures to prevent pollution of seas by dumping of radioactive wastes and also lays down the obligation of the states with respect to activities involving radioactive materials and other harmful agents. States were also required to cooperate with the competent international organizations in preventing pollution of seas from such activities.
• Stockholm Conference on the Human Environment, 1972. The 1972 Conference touches upon the implementation of existing legal instruments on the control of marine pollution. The Stockholm Conference called upon all States to accept and implement existing legal instruments on the control of marine pollution. It also supported proposals for new conventions on dumping and pollution from ships.
• United Nations Convention on the Law of the Sea, (UNCLOS) 1982. The 1982 Convention is of critical importance because it is increasingly regarded as a constitutional document, which sets out the basic legal framework for the oceans. The Convention lays down the duties on and confers rights to the States to take measures to prevent the marine pollution . The treaty has significance for all States, whether or not they are parties to it. As a law-making or constitutional document it can be regarded as the “best evidence” of the existing rules of general international law governing the oceans. All of the global conventions covering specific areas, such as the IMO and UNEP conventions, are generally read subject to the 1982 Convention. Subsequent documents of fundamental importance, such as Chapter 17 of Agenda 21, are also read so as to be consistent with the 1982 Convention. It established for the first time the strongest and comprehensive legal framework for the protection and preservation of the marine environment.
C) European Union.
The European Union through its body European Commission, has taken a strong stand against the marine pollution caused by ships. After the shipwreck of Amico Cadiz, the Council set up an action programme of the European Communities on the control and reduction of pollution caused by hydrocarbons discharged at sea. The adequate measures have been taken by the Commission. The penal provisions have been inserted through the adoption of the norms of the International Law .
A Community framework for cooperation in the field of accidental marine pollution from harmful substances, aims at the prevention of the risks and at efficient mutual assistance between Member States in this field, including compensation for damage in accordance with the polluter-pays principle .
D) Other Regional Conventions.
The Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment, 1982. The Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment, 1982 (The Jeddah Convention) sets out the terms of regional cooperation among the signatory parties in regards to marine and coastal environmental protection. Article IV of the Convention necessitates the measures to be taken by the signatories to prevent marine pollution caused by ships.
The Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention), 1989. Basel Convention is designed to minimize and control international trade in hazardous waste. It regulates the transboundary movement of hazardous substances produced on land which are disposed of or intended for disposal, excluding radioactive waste. It regulates the export of hazardous waste to another State or the passage of such waste through another State.
The Basel Convention is not directly on marine pollution. But, it is related to other marine pollution conventions in the sense that it forms an integral part of a regime governing the movement of hazardous waste.
Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention), 1992. The Convention was adopted in 1992 and came in force in 1998. The OSPAR replaced both the Oslo and Paris Conventions , with the intention of providing a comprehensive and simplified approach to addressing all sources of pollution which might affect the maritime area of the North-east Atlantic, as well as matters relating to the protection of the marine environment thereof. The Convention has been signed and ratified by all of the Contracting Parties to the original Oslo or Paris Conventions (Belgium, Denmark, the European Community, Finland, France, Germany, Iceland, Ireland, the Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom of Great Britain and Northern Ireland) and by Luxembourg and Switzerland.
Convention on the Protection of the Marine Environment of the Baltic Sea Area, 1992 (Helsinki Convention). The Convention was entered into first time in 1974 by all the States bordering the Baltic Sea (Denmark, Germany, Sweden, Estonia, Finland, Latvia, Lithuania, Poland and Russia). aims to reduce pollution of the Baltic Sea area caused by discharges through rivers, estuaries, outfalls and pipelines, dumping and shipping operations as well as through airborne pollutants. The Convention entered into force in 1980. The Convention was revised in 1992. Like the parent Convention, the 1992 Convention also necessitates the measures to prevent the pollution of marine environment caused by ships .
ISSUE OF JURISDICTION.
The primary basis for the regulation the ships is of the jurisdiction enjoyed by the state in which the vessel is registered or whose flag it is entitled to fly (‘the flag state’). The flag state is responsible for the regulation of safety at sea and the prevention of collisions. The responsibility also includes taking measures to prevent pollution. Article 217 of the UNCLOS reiterates the flag state jurisdiction by requiring flag states to take measures necessary for the implementation and effective enforcement of international rules and standards.
As per Annexure I of the MARPOL, the flag state has two main responsibilities in ensuring that the vessels comply with the technical standards set by MARPOL. It must inspect the vessels at periodic intervals, and it must issue an ‘international oil pollution prevention certificate’.
The customary international law also lays down that the flag state has jurisdiction to enforce the regulation over the vessels on high seas. In the Lotus case [PCIJ, Ser. A, No.10 (1927), 169], the Permanent Court of International Justice referred to the principle that no state, other than the flag-state can exercise any kind of jurisdiction over foreign vessels on high seas. By this, it meant only that the foreign vessels could not be arrested or detained while on the high seas. But the regulations can also be exercised by other states once the ship voluntarily entered port. This forms the basis for port state jurisdiction over high seas offences referred to in Article 218 UNCLOS.
Various international conventions and protocols have been signed by the parties of the international community, who have made efforts to protect the marine resources from the pollution caused by the ship sources. Mainly the incidents of oil spills from the ships are the major cause of the marine pollution.
In India also, the judiciary as well as the legislature has taken a strong stand against the marine pollution caused by ships. As far as the Indian stand on the measures to control the marine pollution is concerned, the legislature as well as several judicial pronouncements have significantly accentuated the essence of the marine environment. To protect the marine environment, India has the Coast Guard Act, 1978 apart from the Environment (Protection) Act, 1986, and the Hazardous Wastes (Management and Handling) Rules, 1989. In Research Foundation for Science Technology and Natural Resources Policy v.Union of India (UOI) and Anr ,the Supreme Court, after relying upon the recommendation of Monitoring Committee adopted a course to protect environment. Direction was given for destruction of 133 containers expeditiously by incineration at the cost of importers. Importers held liable to pay amounts to be spent for destroying hazardous waste on basis of precautionary principle and polluter pays principle. Similarly, in Research Foundation for Science v. Union of India , the apex court emphasized on the prevention of introduction of hazardous wastes, which are already banned under the Basel Convention.
Still some cases of violations prevail that point towards some failure on the part of the international community as well. If the contamination of the marine bodies keeps on touching the increasing pace, the days are not far when there will be no viability in the marine bodies. A concrete future steps should be taken by the various national regimes in order to prevent the incidents like Torrey Canyon, Amico Cadiz, Exxon Valdez and the likes.
To prevent marine pollution caused by ships, the nations should seek the cooperation of the international bodies like IMO and UN. Apart from that, they must strictly adhere to the provisions of their environment protection statutes. Strict compliance with the provision of penalty in the cases of violation must be paid heed to. The national regimes should take a cue from the steps taken by the Ministry of Land, Infrastructure and Transport of Japan, which has taken the steps like Establishment of the IMO audit programme on flag State implementation, promotion of incentive schemes for quality ships, promotion of the availability and use of ship information databases, implementation of the ISM Code and other substantial measures to prevent the marine pollution by ships .