ESM principles developed by the Basel Convention “in order to deal with common
concerns as efficient as possible by a holistic approach.”
17 Thus, the IMO has taken a
bold yet cautious step towards an international policy regarding the management of
ship wastes. While recognizing that the provision of port reception facilities should
consider the integration of ship wastes into national waste management systems, the
Manual includes several alternatives for the downstream management of ship
wastes, while clarifying that specific treatment operations of ship wastes on land is
beyond the scope of MARPOL.
18
Whether a soft law instrument as the Manual on Port Reception Facilities could
qualify as GAIRS is not without controversy. The difference between rules and
standards, if any, is far from settled. The International Law Association (ILA)
observes that while rules have been interpreted as treaty-based norms, “standards”
have been construed as including soft law instruments or as technical provisions
established in Annexes of MARPOL, for instance.
19 Nonetheless, these guidelines
are legally relevant in the implementation of highly technical treaty law, or they
could “provide evidence of opinion juris for the possible emergence of a rule of
customary international law.”
20 It is equally controversial to assess whether a hard or
soft law norm is ‘generally accepted.’ In relation to treaty norms a standard could be
high levels of ratification of a treaty. Soft law norms, however, are not subject to the
same formalities of treaty law norms, but State practice could provide assistance in
this matter and it seems immaterial whether a rule or standard is contained in a soft or
hard law instrument.
21
3 GAIRS and Ship Waste Management in the Sea/Land
Interface
Ships have a timeframe within which harmful substances can be kept on board
before discharge. For this reason, States are obliged to ensure the provision of
“adequate” reception facilities for harmful substances of MARPOL’s Annexes I,
II, IV, V, and VI. As the late Professor de La Fayette explains: “[s]hip operators have
a right and an obligation to discharge certain wastes into port reception facilities,
while Port States have an obligation to provide suitable facilities.”
22 While at sea,
MARPOL provides detailed standards for managing ship wastes, e.g., prevention of
waste generation, equipment on board, and discharge criteria. However, the Convention does not provide substantive content concerning the obligation to provide
17 IMO Port Reception Facilities – How to Do It (2016), p. 17.
18 Ibid, pp. 16, 27 and Chapters 8 to 10.
19 Franckx (2001), p. 21.
20 Boyle (1999), p. 906.
21 Franckx (2001), p. 31; Harrison (2011), pp. 174–176.
22 de La Fayette (2009), p. 211.
Regime Interaction and GAIRS
19
concerns as efficient as possible by a holistic approach.”
17 Thus, the IMO has taken a
bold yet cautious step towards an international policy regarding the management of
ship wastes. While recognizing that the provision of port reception facilities should
consider the integration of ship wastes into national waste management systems, the
Manual includes several alternatives for the downstream management of ship
wastes, while clarifying that specific treatment operations of ship wastes on land is
beyond the scope of MARPOL.
18
Whether a soft law instrument as the Manual on Port Reception Facilities could
qualify as GAIRS is not without controversy. The difference between rules and
standards, if any, is far from settled. The International Law Association (ILA)
observes that while rules have been interpreted as treaty-based norms, “standards”
have been construed as including soft law instruments or as technical provisions
established in Annexes of MARPOL, for instance.
19 Nonetheless, these guidelines
are legally relevant in the implementation of highly technical treaty law, or they
could “provide evidence of opinion juris for the possible emergence of a rule of
customary international law.”
20 It is equally controversial to assess whether a hard or
soft law norm is ‘generally accepted.’ In relation to treaty norms a standard could be
high levels of ratification of a treaty. Soft law norms, however, are not subject to the
same formalities of treaty law norms, but State practice could provide assistance in
this matter and it seems immaterial whether a rule or standard is contained in a soft or
hard law instrument.
21
3 GAIRS and Ship Waste Management in the Sea/Land
Interface
Ships have a timeframe within which harmful substances can be kept on board
before discharge. For this reason, States are obliged to ensure the provision of
“adequate” reception facilities for harmful substances of MARPOL’s Annexes I,
II, IV, V, and VI. As the late Professor de La Fayette explains: “[s]hip operators have
a right and an obligation to discharge certain wastes into port reception facilities,
while Port States have an obligation to provide suitable facilities.”
22 While at sea,
MARPOL provides detailed standards for managing ship wastes, e.g., prevention of
waste generation, equipment on board, and discharge criteria. However, the Convention does not provide substantive content concerning the obligation to provide
17 IMO Port Reception Facilities – How to Do It (2016), p. 17.
18 Ibid, pp. 16, 27 and Chapters 8 to 10.
19 Franckx (2001), p. 21.
20 Boyle (1999), p. 906.
21 Franckx (2001), p. 31; Harrison (2011), pp. 174–176.
22 de La Fayette (2009), p. 211.
Regime Interaction and GAIRS
19