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The mixed blessings of the latest marine pollution package
Volume9/Number4/April 1978
The Mixed Blessings of the Latest Marine Pollution Package The International Conference on Tanker Safety and Pollution Prevention which was held by the InterGovernmental Maritime Consultative Organization (IMCO) in London in February 1978, had been awaited with eagerness not only by shipowners, but also by the oil companies, the shipbuilding industry, environmentalists, international lawyers and students of international relations. The interest in the Conference reflected more than its modest terms of reference: to adopt a series of measures aiming at enhancing tanker safety and reducing the risk of ship source pollution. It was the culmination of a series of important developments within the last few years. First, the discrepancy between the international community's willingness to enact anti-pollution regulations and bring them into force had widened in the recent years to the point where the results of IMCO's work were being discredited. For example, the 1969 Amendments to the 1954 International Convention for the Prevention of Pollution of the Sea by Oil, entered into force after nine years - in January 1978. Meanwhile, the 1973 International Convention for the Prevention of Pollution from Ships (MARPOL 1973) is widely regarded as becoming in some respects obsolescent, and yet it stands no chance of entering into force in the near future. The fate of international legislation on marine pollution is thus entirely dependent on the goodwill of the political machinery in IMCO member States. Of course, the same is also true of other aspects of international legislation. But, there are few areas where dilatory procedures can cause as much harm as in environmental matters. This area is dominated by developments in science and technology which constantly produce fresh evidence, highlight new problems and suggest better approaches. Secondly, the Conference owes its existence in part to chance: an upsurge of goodwill on the part of politicians in one single country, the United States, where the environmental lobby gained an upper hand and managed to exert significant influence over President Carter's advisers. At the end of 1976 and in early 1977, a series of tanker casualties in the vicinity of the United States' coasts caused massive pollution. The inadequacy of existing international regulations-patent to all those who have followed developments in international environmental law-suddenly caught the attention of political pundits in Washington who realized that pollution had become an important national political issue. After a strongly worded message which President Carter delivered on 17 March 1977, the United States found themselves at the fore of the campaign against marine pollution. The message to the world, and to IMCO in particular, was simple and straightforward:
the international community will urgently have to adopt new, more enlightened regulations to enhance tanker safety and reduce marine pollution, or the United States will go ahead unilaterally and impose their legislation on all tankers using their ports. IMCO took the message seriously and with unprecedented swiftness set about preparing the 1978 Conference. One may or may not salute the results of the Conference, but it is perhaps inevitable to agree with a cynical view which disappointed observers of international legislative action on marine pollution have been putting forward for many years: one has to pray for a disaster before the problem is taken seriously and politicians are compelled to act. The best solutions, nationally and internationally, are suggested in the aftermath of disasters. In the interim period, civil servants indulge in self-congratulatory statements, convincing everybody-and not least themselves - that all is well. Thirdly, the 1973 Conference adopted a series of resolutions which, although legally not binding, gave an indication of how decision makers put the fight against marine pollution in perspective. One is particularly mindful of Resolution No. 3, which itself echoed statements made at the Stockholm Conference in 1972 and at the NATO Committee on the Challenges of Modern Society, and specified that it was the aim of the international community to stop wilful pollution from ships by the mid 1970s, and not later than the end of the present decade. When MARPOL 1973 was adopted, it was praised above all for its comprehensiveness. MARPOL, it will be recalled, was the first convention to regulate all forms of marine pollution from ships, except dumping. The Convention stipulated that States could become parties only if they ratified both Annex I (oil pollution) and Annex II (chemical pollution). However, it has become clear in recent years that some States which were prepared to accept Annex I, could not commit themselves to Annex II, because some of its requirements went beyond the limits of present technology. Indeed, the UK Government argues that overambitious conventions materially slowed down work towards Resolution No. 3. There was thus great interest what measures, if any, the 1978 Conference would adopt. Finally, the 1978 Conference, which was mainly to affect tankers, was convened in a period when the tanker market was severely depressed. The laid-up fleet stood at something like 35 million tons if we disregard slow steaming vessels. Not all countries were equally affected-Norwegian, Swedish and Greek fleets were hit particularly badly. As shipowners and the shipbuilding industries in these countries were especially interested in reducing the slump on the tanker market, they were prepared to support measures which achieved this aim but also happened to be environmentally forward looking. At the Conference itself, the environmental lobby proper was almost non-existent, both on national delegations and among non-governmental organizations. Therefore, the success of environmentally progressive proposals rested entirely on the successful lobbying of the incidentally sympathetic commercial interests. This highlights an anomaly which deserves more attention than it has hitherto received. 85
MarinePollutionBulletin The 1978 Conference adopted the Protocol of 1978 Relation to the International Convention for the Prevention of Pollution from Ships, 1973, and the Protocol of 1978 Relating to the International Convention for the Safety of Life at Sea, 1974 (SOLAS 1974). Can these two documents be regarded as a success? The conclusions to be drawn depend entirely on one's basic environmental premises. On the positive side of the balance sheet one must first of all recognize the considerable courage demonstrated by participants in agreeing to amend an international convention which has not entered into force. This is precisely what the Conference has achieved because the Protocols effectively amend provisions of MARPOL 1973 and SOLAS 1974. Precedents for this approach exist in international law but they are few and far between and are restricted to problems of minor importance. The Soviet Union, mindful that this approach could be extended uncomfortably to other, more sensitive maritime issues, accepted this course of events with utmost reluctance. What gave the participating States the necessary courage was primarily their considerable frustration with the snail's pace at which they had been proceeding in giving dormant conventions the kiss of life. Another positive element is the large body of practical, technical rules which have been incorporated into the two Protocols. Most of the provisions were not controversial and had won the approval of the majority of States during the preparatory meetings in 1977 of the Marine Environment Protection Committee (MEPC) and the joint session of the Maritime Safety Committee and MEPC. They include the following: (a) design and equipment of tankers: provision of segregated ballast tanks (SBT) for new crude tankers of 20 000 tons and above (MARPOL 1973 limit was 70 000 and above); SBT for product carriers of 30 000 tons and above (no such requirements were contained in MARPOL 1973); protective location of SBT in new tankers (instead of the United States' proposed system of double bottom tanks); improved drainage and discharge systems for new and existing tankers; inert gas systems on all existing and new tankers of 20 000 tons (SOLAS 1974 only required this system to be fitted on new tankers over 100 000 tons); improved steering gear; improved radar and collision avoidance aids; (b) inspection and certification: these procedures have been considerably tightened up. Inspections are now more frequent and there are further provisions for unscheduled ones. In short, procedures are more comprehensive than those required by SOLAS 1974. The above provisions are to be welcomed as is the fact that the participating States agreed on a target date for the proposed entry into force of the two Protocols. States which do not comply with this are invited to explain their intentions to the Secretary General of IMCO and this offers an important public relations incentive to accept target dates. However, one must bear in mind that all the praiseworthy ingredients of the package deal were mainly the result of the strong initiative taken by the United States. The driving force, as has been explained, owes much to chance. Moreover, the amendments made to MARPOL 1973 now enable States to ratify that Convention by accepting Annex I 86
alone. Annex II has been shelved temporarily. The old clich6 that the best may be the worst enemy of the good could well be true, but one cannot help concluding that MARPOL 1973 has now been not just cut down to size but rather had its wings clipped: it was widely believed that it was Annex II which made the Convention so progressive, But, above all, the 1978 Conference was dominated by the heated controversy between supporters of two different methods of reducing ship-generated pollution: SBT and the crude oil washing system (COW). The fact that supporters of the COW system regarded the two methods as alternatives caused much unnecessary misunderstanding. COW and SBT are two complimentary, not mutually exclusive systems. COW is a useful operational device for cleaning cargo tanks without the use of water. But it can never be regarded as a substitute for SBT which is a structural device, preventing contact of oil and ballast water in cargo tanks. The COW system was developed by oil companies and is a cost-effective way of cleaning tanks in the long run, but depends for its success on an impeccable performance on the part of the crew. Past experience has taught us that most accidents are due to human error and that the load on top (LOT) system, much praised throughout the 1960s, largely failed to come up to expectations precisely because crew operations left much to be desired. Oil companies which own something like 36070 of the world tanker fleet (but 65 % of the UK tanker fleet) managed to persuade some of the key maritime States, notably Britain, that COW is the answer. Therefore, the Protocol requires all existing crude carriers of 40 000 tons and above to be fitted with COW (SBT is also allowed but no company would opt for it when COW is a recognized alternative, because the former reduces the cargo carrying capacity by about 15%). Britain and its allies which supported COW, won the battle for two main reasons. First, they successfully wooed the developing countries, suggesting that they were much concerned about the impact of the high cost of SBT on their fleets (the 'sincerity' of this approach is cast in doubt by statements made at other international conferences, notably on the law of the sea and liners). Secondly, they managed to persuade the United States (whose Government was, internally, subject to pressure from more quarters than those who studied Carter's March 1977 message might have originally guessed), that the threat of unilateral action might seriously undermine the work of IMCO - one UN agency which is not dominated by ideological and political squabbling but rather succeeds in adopting pragmatic, workable decisions. However, the official UK policy was challenged internally at two levels: in a debate in the House of Lords, introduced by Lord Ritchie-Calder, Chairman of the Advisory Committee on Oil Pollution of the Sea, and by the shipbuilding industry, which would have benefited handsomely from the SBT conversion. The package deal accepted at the 1978 Conference thus offers a mixed bag. On the one hand, some worthwhile progress has been made. On the other, the wisdom of opting so strongly for the cheapest operational method of reducing pollution will soon be tested in practice. What has been lost was an opportunity to
Volume 9/Number 4/April 1978
bring the ideals of Resolution 3 of the 1973 Conference to life. Resolution No. 3 of the 1978 Conference admits that the best solution would be to combine SBT and COW systems and encourages States to make suitable proposals for amending the 1978 Protocol by 1986. In practice, this means that we have effectively shelved the
commitments made in 1973 by at least twenty years. Whether one should regard this as a positive review of the unwarranted environmental euphoria which followed the Stockholm Conference of 1972, or a large step backwards, is open to debate.
VIKTOR SEBEK
.3
" B o i l it t h o r o u g h l y - no saying w h e r e it's been !"
Coastal Oil Spill Impact Assessed A report on the work carried out by the University of South Carolina (USC) Oil Spill Assessment team since 1975, published recently in Environment (Vol. 19, No. 9), underlines the difficulties of predicting oil spill impact on coastal zones. The report by Erich R. Gundlach, a member of the team which has investigated a number of major spills throughout the world, details the effects of numerous incidents and gives more detailed information concerning the Metula, Jakob Maersk and Urquiola oil spills
which were observed at first hand during the team's research activities. The grounding of the 210 000 dwt crude oil carrier Metula in the Strait of Magellan in August 1974 resulted in the loss of 52 000 tonnes of crude oil (the vessel was carrying a total of 200 000 tonnes) and 2 000 tonnes of fuel oil, creating slicks covering an estimated 2590 km'. Some 41 000 tonnes were deposited along the shoreline with severe biological impact. An untold number of fish died, mussel beds and marsh life destroyed and an estimated 4000 birds were killed. Due to the remoteness of the location, a clean-up operation was not attempted and when a USC research group visited the affected area one year later, aerial and ground surveys found most of the oil still remained along 250 km of shoreline. In the cold, harsh environment, the oil had degraded little and repeat observations after a further six months and one year later found that oil was still much in evidence particularly along high and low tide marks on most of the area's gravel beaches. The areas of beach 87
The Mixed Blessings of the Latest Marine Pollution Package The International Conference on Tanker Safety and Pollution Prevention which was held by the InterGovernmental Maritime Consultative Organization (IMCO) in London in February 1978, had been awaited with eagerness not only by shipowners, but also by the oil companies, the shipbuilding industry, environmentalists, international lawyers and students of international relations. The interest in the Conference reflected more than its modest terms of reference: to adopt a series of measures aiming at enhancing tanker safety and reducing the risk of ship source pollution. It was the culmination of a series of important developments within the last few years. First, the discrepancy between the international community's willingness to enact anti-pollution regulations and bring them into force had widened in the recent years to the point where the results of IMCO's work were being discredited. For example, the 1969 Amendments to the 1954 International Convention for the Prevention of Pollution of the Sea by Oil, entered into force after nine years - in January 1978. Meanwhile, the 1973 International Convention for the Prevention of Pollution from Ships (MARPOL 1973) is widely regarded as becoming in some respects obsolescent, and yet it stands no chance of entering into force in the near future. The fate of international legislation on marine pollution is thus entirely dependent on the goodwill of the political machinery in IMCO member States. Of course, the same is also true of other aspects of international legislation. But, there are few areas where dilatory procedures can cause as much harm as in environmental matters. This area is dominated by developments in science and technology which constantly produce fresh evidence, highlight new problems and suggest better approaches. Secondly, the Conference owes its existence in part to chance: an upsurge of goodwill on the part of politicians in one single country, the United States, where the environmental lobby gained an upper hand and managed to exert significant influence over President Carter's advisers. At the end of 1976 and in early 1977, a series of tanker casualties in the vicinity of the United States' coasts caused massive pollution. The inadequacy of existing international regulations-patent to all those who have followed developments in international environmental law-suddenly caught the attention of political pundits in Washington who realized that pollution had become an important national political issue. After a strongly worded message which President Carter delivered on 17 March 1977, the United States found themselves at the fore of the campaign against marine pollution. The message to the world, and to IMCO in particular, was simple and straightforward:
the international community will urgently have to adopt new, more enlightened regulations to enhance tanker safety and reduce marine pollution, or the United States will go ahead unilaterally and impose their legislation on all tankers using their ports. IMCO took the message seriously and with unprecedented swiftness set about preparing the 1978 Conference. One may or may not salute the results of the Conference, but it is perhaps inevitable to agree with a cynical view which disappointed observers of international legislative action on marine pollution have been putting forward for many years: one has to pray for a disaster before the problem is taken seriously and politicians are compelled to act. The best solutions, nationally and internationally, are suggested in the aftermath of disasters. In the interim period, civil servants indulge in self-congratulatory statements, convincing everybody-and not least themselves - that all is well. Thirdly, the 1973 Conference adopted a series of resolutions which, although legally not binding, gave an indication of how decision makers put the fight against marine pollution in perspective. One is particularly mindful of Resolution No. 3, which itself echoed statements made at the Stockholm Conference in 1972 and at the NATO Committee on the Challenges of Modern Society, and specified that it was the aim of the international community to stop wilful pollution from ships by the mid 1970s, and not later than the end of the present decade. When MARPOL 1973 was adopted, it was praised above all for its comprehensiveness. MARPOL, it will be recalled, was the first convention to regulate all forms of marine pollution from ships, except dumping. The Convention stipulated that States could become parties only if they ratified both Annex I (oil pollution) and Annex II (chemical pollution). However, it has become clear in recent years that some States which were prepared to accept Annex I, could not commit themselves to Annex II, because some of its requirements went beyond the limits of present technology. Indeed, the UK Government argues that overambitious conventions materially slowed down work towards Resolution No. 3. There was thus great interest what measures, if any, the 1978 Conference would adopt. Finally, the 1978 Conference, which was mainly to affect tankers, was convened in a period when the tanker market was severely depressed. The laid-up fleet stood at something like 35 million tons if we disregard slow steaming vessels. Not all countries were equally affected-Norwegian, Swedish and Greek fleets were hit particularly badly. As shipowners and the shipbuilding industries in these countries were especially interested in reducing the slump on the tanker market, they were prepared to support measures which achieved this aim but also happened to be environmentally forward looking. At the Conference itself, the environmental lobby proper was almost non-existent, both on national delegations and among non-governmental organizations. Therefore, the success of environmentally progressive proposals rested entirely on the successful lobbying of the incidentally sympathetic commercial interests. This highlights an anomaly which deserves more attention than it has hitherto received. 85
MarinePollutionBulletin The 1978 Conference adopted the Protocol of 1978 Relation to the International Convention for the Prevention of Pollution from Ships, 1973, and the Protocol of 1978 Relating to the International Convention for the Safety of Life at Sea, 1974 (SOLAS 1974). Can these two documents be regarded as a success? The conclusions to be drawn depend entirely on one's basic environmental premises. On the positive side of the balance sheet one must first of all recognize the considerable courage demonstrated by participants in agreeing to amend an international convention which has not entered into force. This is precisely what the Conference has achieved because the Protocols effectively amend provisions of MARPOL 1973 and SOLAS 1974. Precedents for this approach exist in international law but they are few and far between and are restricted to problems of minor importance. The Soviet Union, mindful that this approach could be extended uncomfortably to other, more sensitive maritime issues, accepted this course of events with utmost reluctance. What gave the participating States the necessary courage was primarily their considerable frustration with the snail's pace at which they had been proceeding in giving dormant conventions the kiss of life. Another positive element is the large body of practical, technical rules which have been incorporated into the two Protocols. Most of the provisions were not controversial and had won the approval of the majority of States during the preparatory meetings in 1977 of the Marine Environment Protection Committee (MEPC) and the joint session of the Maritime Safety Committee and MEPC. They include the following: (a) design and equipment of tankers: provision of segregated ballast tanks (SBT) for new crude tankers of 20 000 tons and above (MARPOL 1973 limit was 70 000 and above); SBT for product carriers of 30 000 tons and above (no such requirements were contained in MARPOL 1973); protective location of SBT in new tankers (instead of the United States' proposed system of double bottom tanks); improved drainage and discharge systems for new and existing tankers; inert gas systems on all existing and new tankers of 20 000 tons (SOLAS 1974 only required this system to be fitted on new tankers over 100 000 tons); improved steering gear; improved radar and collision avoidance aids; (b) inspection and certification: these procedures have been considerably tightened up. Inspections are now more frequent and there are further provisions for unscheduled ones. In short, procedures are more comprehensive than those required by SOLAS 1974. The above provisions are to be welcomed as is the fact that the participating States agreed on a target date for the proposed entry into force of the two Protocols. States which do not comply with this are invited to explain their intentions to the Secretary General of IMCO and this offers an important public relations incentive to accept target dates. However, one must bear in mind that all the praiseworthy ingredients of the package deal were mainly the result of the strong initiative taken by the United States. The driving force, as has been explained, owes much to chance. Moreover, the amendments made to MARPOL 1973 now enable States to ratify that Convention by accepting Annex I 86
alone. Annex II has been shelved temporarily. The old clich6 that the best may be the worst enemy of the good could well be true, but one cannot help concluding that MARPOL 1973 has now been not just cut down to size but rather had its wings clipped: it was widely believed that it was Annex II which made the Convention so progressive, But, above all, the 1978 Conference was dominated by the heated controversy between supporters of two different methods of reducing ship-generated pollution: SBT and the crude oil washing system (COW). The fact that supporters of the COW system regarded the two methods as alternatives caused much unnecessary misunderstanding. COW and SBT are two complimentary, not mutually exclusive systems. COW is a useful operational device for cleaning cargo tanks without the use of water. But it can never be regarded as a substitute for SBT which is a structural device, preventing contact of oil and ballast water in cargo tanks. The COW system was developed by oil companies and is a cost-effective way of cleaning tanks in the long run, but depends for its success on an impeccable performance on the part of the crew. Past experience has taught us that most accidents are due to human error and that the load on top (LOT) system, much praised throughout the 1960s, largely failed to come up to expectations precisely because crew operations left much to be desired. Oil companies which own something like 36070 of the world tanker fleet (but 65 % of the UK tanker fleet) managed to persuade some of the key maritime States, notably Britain, that COW is the answer. Therefore, the Protocol requires all existing crude carriers of 40 000 tons and above to be fitted with COW (SBT is also allowed but no company would opt for it when COW is a recognized alternative, because the former reduces the cargo carrying capacity by about 15%). Britain and its allies which supported COW, won the battle for two main reasons. First, they successfully wooed the developing countries, suggesting that they were much concerned about the impact of the high cost of SBT on their fleets (the 'sincerity' of this approach is cast in doubt by statements made at other international conferences, notably on the law of the sea and liners). Secondly, they managed to persuade the United States (whose Government was, internally, subject to pressure from more quarters than those who studied Carter's March 1977 message might have originally guessed), that the threat of unilateral action might seriously undermine the work of IMCO - one UN agency which is not dominated by ideological and political squabbling but rather succeeds in adopting pragmatic, workable decisions. However, the official UK policy was challenged internally at two levels: in a debate in the House of Lords, introduced by Lord Ritchie-Calder, Chairman of the Advisory Committee on Oil Pollution of the Sea, and by the shipbuilding industry, which would have benefited handsomely from the SBT conversion. The package deal accepted at the 1978 Conference thus offers a mixed bag. On the one hand, some worthwhile progress has been made. On the other, the wisdom of opting so strongly for the cheapest operational method of reducing pollution will soon be tested in practice. What has been lost was an opportunity to
Volume 9/Number 4/April 1978
bring the ideals of Resolution 3 of the 1973 Conference to life. Resolution No. 3 of the 1978 Conference admits that the best solution would be to combine SBT and COW systems and encourages States to make suitable proposals for amending the 1978 Protocol by 1986. In practice, this means that we have effectively shelved the
commitments made in 1973 by at least twenty years. Whether one should regard this as a positive review of the unwarranted environmental euphoria which followed the Stockholm Conference of 1972, or a large step backwards, is open to debate.
VIKTOR SEBEK
.3
" B o i l it t h o r o u g h l y - no saying w h e r e it's been !"
Coastal Oil Spill Impact Assessed A report on the work carried out by the University of South Carolina (USC) Oil Spill Assessment team since 1975, published recently in Environment (Vol. 19, No. 9), underlines the difficulties of predicting oil spill impact on coastal zones. The report by Erich R. Gundlach, a member of the team which has investigated a number of major spills throughout the world, details the effects of numerous incidents and gives more detailed information concerning the Metula, Jakob Maersk and Urquiola oil spills
which were observed at first hand during the team's research activities. The grounding of the 210 000 dwt crude oil carrier Metula in the Strait of Magellan in August 1974 resulted in the loss of 52 000 tonnes of crude oil (the vessel was carrying a total of 200 000 tonnes) and 2 000 tonnes of fuel oil, creating slicks covering an estimated 2590 km'. Some 41 000 tonnes were deposited along the shoreline with severe biological impact. An untold number of fish died, mussel beds and marsh life destroyed and an estimated 4000 birds were killed. Due to the remoteness of the location, a clean-up operation was not attempted and when a USC research group visited the affected area one year later, aerial and ground surveys found most of the oil still remained along 250 km of shoreline. In the cold, harsh environment, the oil had degraded little and repeat observations after a further six months and one year later found that oil was still much in evidence particularly along high and low tide marks on most of the area's gravel beaches. The areas of beach 87