and measures, but also a certain level of vigilance in their enforcement and the
exercise of administrative control”
40 (emphasis added). This case reproduces verbatim the concept of due diligence as analyzed by the ICJ in the Pulp Mills case
41 ;
ITLOS in the Request for an Advisory Opinion Submitted by the Sub-Regional
Fisheries Commission
42 ; and the Seabed Disputes Chamber in its advisory opinion
concerning the Responsibilities and Obligations of States Sponsoring Persons and
Entities with Respect to Activities in the Area.
43
4.2 The Obligation to Provide “Adequate” Port Reception
Facilities
In addition to the obligation “to ensure” the provision of port reception facilities,
these facilities must be adequate. MARPOL does not define what constitute “adequate reception facilities,” but the IMO considers that “adequacy”
44 serves to
describe reception facilities with the following characteristics: satisfy the requirements of their users; prevent undue delays; avoid creating disincentives for using
reception facilities; contribute to the improvement of the marine environment; and
allow the “final disposal” of wastes generated on board ships on land in an
environmentally appropriate way. These characteristics are explained below:
4.2.1 Satisfy the Requirements of Ships That Usually Use the Port
Notwithstanding their size, all ports should be able to provide port reception
facilities for the types of ships using a particular port. This does not mean, however,
that a port should provide reception facilities for all types of ship wastes. It requires a
previous study consistent with the waste management strategy to determine which
type of vessels usually call to a port, and an assessment of the type and quantities of
ship wastes. Ports should carefully plan where to locate port reception facilities. If
40 Case No. 2013-19 the South China Sea Arbitration (the Republic of Philippines v. The People’s
Republic of China) (2016), para 944.
41 Pulp Mills on the River Uruguay (Argentina v. Uruguay) (2010), para 197.
42 Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission, ITLOS
(2015), para 131.
43 Responsibilities and Obligations of States with Respect to Activities in the Area, ITLOS Seabed
Dispute Chamber (2011).
44 Resolution MEPC.83(44) Guidelines for Ensuring the Adequacy of Port Waste Reception
Facilities, (2000); MEPC.1/Circ.834: Consolidated Guidance for Port Reception Facility Providers
and Users (2014); IMO Port Reception Facilities – How to Do It (2016).
24
G. Argüello
exercise of administrative control”
40 (emphasis added). This case reproduces verbatim the concept of due diligence as analyzed by the ICJ in the Pulp Mills case
41 ;
ITLOS in the Request for an Advisory Opinion Submitted by the Sub-Regional
Fisheries Commission
42 ; and the Seabed Disputes Chamber in its advisory opinion
concerning the Responsibilities and Obligations of States Sponsoring Persons and
Entities with Respect to Activities in the Area.
43
4.2 The Obligation to Provide “Adequate” Port Reception
Facilities
In addition to the obligation “to ensure” the provision of port reception facilities,
these facilities must be adequate. MARPOL does not define what constitute “adequate reception facilities,” but the IMO considers that “adequacy”
44 serves to
describe reception facilities with the following characteristics: satisfy the requirements of their users; prevent undue delays; avoid creating disincentives for using
reception facilities; contribute to the improvement of the marine environment; and
allow the “final disposal” of wastes generated on board ships on land in an
environmentally appropriate way. These characteristics are explained below:
4.2.1 Satisfy the Requirements of Ships That Usually Use the Port
Notwithstanding their size, all ports should be able to provide port reception
facilities for the types of ships using a particular port. This does not mean, however,
that a port should provide reception facilities for all types of ship wastes. It requires a
previous study consistent with the waste management strategy to determine which
type of vessels usually call to a port, and an assessment of the type and quantities of
ship wastes. Ports should carefully plan where to locate port reception facilities. If
40 Case No. 2013-19 the South China Sea Arbitration (the Republic of Philippines v. The People’s
Republic of China) (2016), para 944.
41 Pulp Mills on the River Uruguay (Argentina v. Uruguay) (2010), para 197.
42 Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission, ITLOS
(2015), para 131.
43 Responsibilities and Obligations of States with Respect to Activities in the Area, ITLOS Seabed
Dispute Chamber (2011).
44 Resolution MEPC.83(44) Guidelines for Ensuring the Adequacy of Port Waste Reception
Facilities, (2000); MEPC.1/Circ.834: Consolidated Guidance for Port Reception Facility Providers
and Users (2014); IMO Port Reception Facilities – How to Do It (2016).
24
G. Argüello