“adequate” port reception facilities. The history of MARPOL shows that its Parties
have been reluctant to establish binding standards to assess whether these facilities
are adequate. Instead, they have relied on soft law instruments developed under the
auspices of the IMO.
3.1 Ship Waste Management on Land and the Duty Not
to Transform Pollution
The IMO Manual on Port Reception Facilities provides guidelines for downstream
treatment of wastes after their discharge at port reception facilities. This instrument
assists States in complying with the obligation set in Article 195 of UNCLOS, i.e., to
avoid the transformation of one type of pollution into another. This provision has an
integrative function
23 that requires cooperation and coordination between stakeholders and legal regimes in order to prevent unintended consequences in one
environmental media, e.g., sea, while taking actions to prevent and control pollution
in another environmental media, e.g., land. The international regulation of the
environment has a predominant sectoral approach, and Article 195 of UNCLOS is
an attempt to address fragmentation.
24
3.2 Environmentally Sound Management (ESM) of Wastes
In an effort to integrate port reception facilities to national waste management
systems, the Manual on Port Reception Facilities has considered the ESM principle
developed under the Basel Convention. ESM was initially embodied in the Basel
Convention and has gradually transformed into an autonomous legal principle.
Article 2 (8) of the Basel Convention defines ESM as:
taking all practicable steps to ensure that hazardous wastes or other wastes are managed in a
manner which will protect human health and the environment against the adverse effects
which may result from such wastes.
The COP to the Basel Convention from its Fifth Meeting onwards
25 has been
active in promoting ESM as a pillar of the management of wastes irrespective of
whether such management has transboundary implications. As a result of such
23 Rakhyun and van Asselt (2016), pp. 481–482.
24 Cf. The vision that argues that provisions like the one established in Article 195 of UNCLOS
weaken “an entire spectrum of regulation aimed at preventing the oceans from becoming the final
repository of hazardous, persistent, and bioaccumulative pollutants. There is also considerable
danger that the anti-transfer provisions might be used to justify ocean disposal as the least
environmentally harmful option.” Teclaff and Teclaff (1991), pp. 197 and 210.
25 COP to the BASEL Convention: Decision V/1 (1999).
20
G. Argüello
have been reluctant to establish binding standards to assess whether these facilities
are adequate. Instead, they have relied on soft law instruments developed under the
auspices of the IMO.
3.1 Ship Waste Management on Land and the Duty Not
to Transform Pollution
The IMO Manual on Port Reception Facilities provides guidelines for downstream
treatment of wastes after their discharge at port reception facilities. This instrument
assists States in complying with the obligation set in Article 195 of UNCLOS, i.e., to
avoid the transformation of one type of pollution into another. This provision has an
integrative function
23 that requires cooperation and coordination between stakeholders and legal regimes in order to prevent unintended consequences in one
environmental media, e.g., sea, while taking actions to prevent and control pollution
in another environmental media, e.g., land. The international regulation of the
environment has a predominant sectoral approach, and Article 195 of UNCLOS is
an attempt to address fragmentation.
24
3.2 Environmentally Sound Management (ESM) of Wastes
In an effort to integrate port reception facilities to national waste management
systems, the Manual on Port Reception Facilities has considered the ESM principle
developed under the Basel Convention. ESM was initially embodied in the Basel
Convention and has gradually transformed into an autonomous legal principle.
Article 2 (8) of the Basel Convention defines ESM as:
taking all practicable steps to ensure that hazardous wastes or other wastes are managed in a
manner which will protect human health and the environment against the adverse effects
which may result from such wastes.
The COP to the Basel Convention from its Fifth Meeting onwards
25 has been
active in promoting ESM as a pillar of the management of wastes irrespective of
whether such management has transboundary implications. As a result of such
23 Rakhyun and van Asselt (2016), pp. 481–482.
24 Cf. The vision that argues that provisions like the one established in Article 195 of UNCLOS
weaken “an entire spectrum of regulation aimed at preventing the oceans from becoming the final
repository of hazardous, persistent, and bioaccumulative pollutants. There is also considerable
danger that the anti-transfer provisions might be used to justify ocean disposal as the least
environmentally harmful option.” Teclaff and Teclaff (1991), pp. 197 and 210.
25 COP to the BASEL Convention: Decision V/1 (1999).
20
G. Argüello