including for example oil-water separation in the case of bilge water,
3 and the
disinfection and comminution of sewage.
4 The vast majority of ship wastes, however, remain on board vessels. These residues are constantly generated due to ships
operations, and they can only be kept on board for a limited time before its discharge
becomes a necessity. The provision of “adequate port reception facilities”
5 becomes
essential within the waste management process of ship wastes that otherwise would
end up in the sea.
The Parties to MARPOL, however, have been reluctant to develop the meaning
and extent of the obligation related to the provision of port reception facilities
6 and
the relationship between these facilities and further downstream management operations. Such reluctance could be understood from the traditional legal approach
towards “domestic wastes,” i.e., once wastes are discharged on land, States manage
these wastes at their discretion. As further analyzed in this Chapter, the provision of
port reception facilities includes the obligation to manage ship wastes on land
because States shall not transform one type of pollution into another, i.e., marinesource pollution to land-based pollution in accordance with Article 195 of
UNCLOS.
2 Significance of GAIRS in the Development of the Law
of the Sea and Beyond
According to Article 211(2) of the UNCLOS, the regulations adopted by Flag States
to prevent, control, and reduce ship-source pollution “shall at least have the same
effect as that of generally accepted international rules and standards established
through the competent international organization.” These international rules—also
known as GAIRS—refer to external hard and soft law norms that fulfill the following
functions. First, the reference to GAIRS operationalize the duty of cooperation
between States in the development of rules and standards for the protection and
preservation of the marine environment from the deleterious effects of pollution.
7
Second, regarding ship source pollution, GAIRS represent the minimum legislative
3 MARPOL, Annex I—Oil, Regulation 30 (4) related to pumping, piping, and discharge arrangement. See also, Regulation 32 “oil/water interface detector.”
4 Ibid, Annex IV—Sewage, Regulation 9 (2) “sewage systems”; Regulation 11 (1.1) “Discharge of
sewage.”
5 States have the obligation to ensure the provision of adequate port reception facilities, in relation to
the following MARPOL’s annexes. Annex I—Oil: in loading ports, ship repair yards or tank
cleaning facilities, bunkering ports. MARPOL, Annex I, Regulation 38. Annex II—Noxious Liquid
Substances (NLS) in bulk: in ports and terminals handling cargoes of Annex II and in ship repair
ports. MARPOL, Annex II, Regulation 18. Annex IV—Sewage, Regulation 12. Annex V—
Garbage, Regulation 8; and Annex VI—Ozone-depleting, Regulation 17.
6 Mitchell (1994), Ch. 6; Tan (2006), pp. 251–281.
7 Redgwell (2016), p. 172.
Regime Interaction and GAIRS
17
3 and the
disinfection and comminution of sewage.
4 The vast majority of ship wastes, however, remain on board vessels. These residues are constantly generated due to ships
operations, and they can only be kept on board for a limited time before its discharge
becomes a necessity. The provision of “adequate port reception facilities”
5 becomes
essential within the waste management process of ship wastes that otherwise would
end up in the sea.
The Parties to MARPOL, however, have been reluctant to develop the meaning
and extent of the obligation related to the provision of port reception facilities
6 and
the relationship between these facilities and further downstream management operations. Such reluctance could be understood from the traditional legal approach
towards “domestic wastes,” i.e., once wastes are discharged on land, States manage
these wastes at their discretion. As further analyzed in this Chapter, the provision of
port reception facilities includes the obligation to manage ship wastes on land
because States shall not transform one type of pollution into another, i.e., marinesource pollution to land-based pollution in accordance with Article 195 of
UNCLOS.
2 Significance of GAIRS in the Development of the Law
of the Sea and Beyond
According to Article 211(2) of the UNCLOS, the regulations adopted by Flag States
to prevent, control, and reduce ship-source pollution “shall at least have the same
effect as that of generally accepted international rules and standards established
through the competent international organization.” These international rules—also
known as GAIRS—refer to external hard and soft law norms that fulfill the following
functions. First, the reference to GAIRS operationalize the duty of cooperation
between States in the development of rules and standards for the protection and
preservation of the marine environment from the deleterious effects of pollution.
7
Second, regarding ship source pollution, GAIRS represent the minimum legislative
3 MARPOL, Annex I—Oil, Regulation 30 (4) related to pumping, piping, and discharge arrangement. See also, Regulation 32 “oil/water interface detector.”
4 Ibid, Annex IV—Sewage, Regulation 9 (2) “sewage systems”; Regulation 11 (1.1) “Discharge of
sewage.”
5 States have the obligation to ensure the provision of adequate port reception facilities, in relation to
the following MARPOL’s annexes. Annex I—Oil: in loading ports, ship repair yards or tank
cleaning facilities, bunkering ports. MARPOL, Annex I, Regulation 38. Annex II—Noxious Liquid
Substances (NLS) in bulk: in ports and terminals handling cargoes of Annex II and in ship repair
ports. MARPOL, Annex II, Regulation 18. Annex IV—Sewage, Regulation 12. Annex V—
Garbage, Regulation 8; and Annex VI—Ozone-depleting, Regulation 17.
6 Mitchell (1994), Ch. 6; Tan (2006), pp. 251–281.
7 Redgwell (2016), p. 172.
Regime Interaction and GAIRS
17