4 Port Reception Facilities
The adequacy of these facilities is a crucial first step in ensuring the ESM of ship
wastes on land in relation to the collection, storage, and handling of these wastes.
States Parties to UNCLOS and MARPOL have designed a regulatory system that
aims to prevent marine pollution by reducing discharges of harmful substances into
the marine environment. This regulatory system has two implications. On the one
hand, since their holding capacity is limited, vessels using a port or terminal have not
only the obligation but also the right to discharge residues at port reception facilities.
37 States, on the other hand, while exercising their sovereign right over the use of
their territory and resources, have agreed to receive ship wastes and treat them on
land without transforming one type of pollution into another as required in article
195 of UNCLOS.
4.1 The Obligation to “Ensure” the Provision of Port
Reception Facilities
Currently, the regulations in MARPOL requiring port reception facilities state in a
similar fashion that each party “undertakes to ensure the provision of adequate
reception facilities to receive harmful substances of Annexes I, II, IV, V, and VI.”
Unlike strict regulations prescribed in MARPOL and impinged directly on ship
operators, e.g., ships’ construction standards, equipment, and discharge criteria, the
obligations in relation to the funding and operation of port reception facilities remain
vague. States explicitly avoided being bound by strict regulations under MARPOL,
and “never meant to state clearly who – the states, the ports . . . should pay for the
facilities.”
38 In fact, State Parties amend the Convention periodically and strongly
support on-board treatment techniques, but little has been done to establish binding
obligations in relation to port reception facilities. According to the IMO, a State
Party may provide reception facilities, but it is not an obligation imposed on a State
per se; instead a Party could choose to require port authorities and terminal operators
to provide the facilities.
39 However, the obligation “to ensure” the provision of port
reception facilities goes beyond the adoption of regulations requiring operators to
fund and operate such facilities.
Recently, the Arbitral Tribunal examined the obligation “to ensure” in the South
China Sea Arbitration case. According to the Court, “ensure” is an obligation of
conduct. It requires a State to be due diligent, i.e., it must adopt “appropriate rules
37 “there are a limited number of options for dealing with wastes generated at sea. On land, there are
several options. At sea, there are only two, either: 1. discharge into the sea, or 2. discharge/
unloading into port reception facilities.” de La Fayette (2009), p. 211.
38 Tan (2006), p. 265.
39 IMO Port Reception Facilities – How to Do It (2016), p. 97.
Regime Interaction and GAIRS
23
The adequacy of these facilities is a crucial first step in ensuring the ESM of ship
wastes on land in relation to the collection, storage, and handling of these wastes.
States Parties to UNCLOS and MARPOL have designed a regulatory system that
aims to prevent marine pollution by reducing discharges of harmful substances into
the marine environment. This regulatory system has two implications. On the one
hand, since their holding capacity is limited, vessels using a port or terminal have not
only the obligation but also the right to discharge residues at port reception facilities.
37 States, on the other hand, while exercising their sovereign right over the use of
their territory and resources, have agreed to receive ship wastes and treat them on
land without transforming one type of pollution into another as required in article
195 of UNCLOS.
4.1 The Obligation to “Ensure” the Provision of Port
Reception Facilities
Currently, the regulations in MARPOL requiring port reception facilities state in a
similar fashion that each party “undertakes to ensure the provision of adequate
reception facilities to receive harmful substances of Annexes I, II, IV, V, and VI.”
Unlike strict regulations prescribed in MARPOL and impinged directly on ship
operators, e.g., ships’ construction standards, equipment, and discharge criteria, the
obligations in relation to the funding and operation of port reception facilities remain
vague. States explicitly avoided being bound by strict regulations under MARPOL,
and “never meant to state clearly who – the states, the ports . . . should pay for the
facilities.”
38 In fact, State Parties amend the Convention periodically and strongly
support on-board treatment techniques, but little has been done to establish binding
obligations in relation to port reception facilities. According to the IMO, a State
Party may provide reception facilities, but it is not an obligation imposed on a State
per se; instead a Party could choose to require port authorities and terminal operators
to provide the facilities.
39 However, the obligation “to ensure” the provision of port
reception facilities goes beyond the adoption of regulations requiring operators to
fund and operate such facilities.
Recently, the Arbitral Tribunal examined the obligation “to ensure” in the South
China Sea Arbitration case. According to the Court, “ensure” is an obligation of
conduct. It requires a State to be due diligent, i.e., it must adopt “appropriate rules
37 “there are a limited number of options for dealing with wastes generated at sea. On land, there are
several options. At sea, there are only two, either: 1. discharge into the sea, or 2. discharge/
unloading into port reception facilities.” de La Fayette (2009), p. 211.
38 Tan (2006), p. 265.
39 IMO Port Reception Facilities – How to Do It (2016), p. 97.
Regime Interaction and GAIRS
23