ports.
74 This has not been the case for many developing States.
75 The unintended
consequence of this development is the transfer of pollution from one place to
another. In the absence of compulsory standards that specify the location where
ship wastes must be discharged, e.g., the unloading port, ships with enough holding
capacity can choose cheaper port reception facilities. In general, the poorest countries continue to be the most affected by pollution because illegal discharges also
increase if reception facilities are not available.
Judging the availability and adequacy of port reception facilities around the globe
is a difficult task, since State Parties to MARPOL are reluctant to provide information. Article 11 (d) of MARPOL prescribes that the Parties must communicate to the
IMO “a list of reception facilities including their location, capacity and available
facilities and other characteristics.” Reporting is a common feature in conventions
adopted under the auspices of the IMO and in multilateral environmental agreements
(MEAs) in general.
76 In the case of MARPOL, for example, both the IMO and States
Parties can collectively exercise supervisory functions and exert pressure (e.g.,
naming and shaming in effect) on States that fail to implement, comply with, and
enforce their international obligations. Extensive research has been undertaken
regarding the relationship between reporting and transparency, as well as the influence of reporting on improving enforcement among State Parties.
77 Most
non-compliance remedies under general public international law, including the
possibility to terminate or suspend a treaty in cases of material breach, are essentially
inadequate to deal with environmental problems because MEAs require to secure
cooperation of States in addressing environmental concerns that are transboundary in
nature. In other words, non-confrontational procedures are preferred, since terminating or suspending MEAs would “primarily harm the international community,
not the defaulting State.”
78 The compliance reporting rate for the year 2015 was
25%, i.e., only 38 Parties have submitted reports.
79
Over the years, scholars have emphasized the need to develop alternative incentives to improve compliance with MEAs.
80 These incentives usually rely on supervisory mechanisms of international organizations, closer cooperation between
several stakeholders, enhancement of transparency, e.g., standardized forms,
74 Carpenter and Macgill (2005); Ramboll: EMSA/OP/06/2011 (2012).
75 Karim (2015), pp. 134–138.
76 For instance: Article 11 of MARPOL; Article 13 (3) of the Basel Convention; Article 14 of the
Ballast Water Management Convention; Article III of the Protocol of 1988 relating to the International Convention for the Safety of Life at Sea, 1974 (SOLAS); Article 7 of the Kyoto Protocol to
the United Nations Framework Convention on Climate Change.
77 Wettestad (2007); Mitchell (1994), pp. 123–124; Birnie et al. (2009), pp. 242–244; Handl (1997);
Chayes and Handler Chayes (1991); Ulfstein (2008), p. 129.
78 Boyle (1991), p. 233.
79 MEPC.1/Circ.869 (2017), p. 3. The compliance reporting rate relates to the reporting of incidental
spillages, alleged discharge violations, penalties imposed for MARPOL 73/78 violations, among
others.
80 Chayes and Handler Chayes (1991), Boyle (1991) and Wettestad (2007).
Regime Interaction and GAIRS
31
74 This has not been the case for many developing States.
75 The unintended
consequence of this development is the transfer of pollution from one place to
another. In the absence of compulsory standards that specify the location where
ship wastes must be discharged, e.g., the unloading port, ships with enough holding
capacity can choose cheaper port reception facilities. In general, the poorest countries continue to be the most affected by pollution because illegal discharges also
increase if reception facilities are not available.
Judging the availability and adequacy of port reception facilities around the globe
is a difficult task, since State Parties to MARPOL are reluctant to provide information. Article 11 (d) of MARPOL prescribes that the Parties must communicate to the
IMO “a list of reception facilities including their location, capacity and available
facilities and other characteristics.” Reporting is a common feature in conventions
adopted under the auspices of the IMO and in multilateral environmental agreements
(MEAs) in general.
76 In the case of MARPOL, for example, both the IMO and States
Parties can collectively exercise supervisory functions and exert pressure (e.g.,
naming and shaming in effect) on States that fail to implement, comply with, and
enforce their international obligations. Extensive research has been undertaken
regarding the relationship between reporting and transparency, as well as the influence of reporting on improving enforcement among State Parties.
77 Most
non-compliance remedies under general public international law, including the
possibility to terminate or suspend a treaty in cases of material breach, are essentially
inadequate to deal with environmental problems because MEAs require to secure
cooperation of States in addressing environmental concerns that are transboundary in
nature. In other words, non-confrontational procedures are preferred, since terminating or suspending MEAs would “primarily harm the international community,
not the defaulting State.”
78 The compliance reporting rate for the year 2015 was
25%, i.e., only 38 Parties have submitted reports.
79
Over the years, scholars have emphasized the need to develop alternative incentives to improve compliance with MEAs.
80 These incentives usually rely on supervisory mechanisms of international organizations, closer cooperation between
several stakeholders, enhancement of transparency, e.g., standardized forms,
74 Carpenter and Macgill (2005); Ramboll: EMSA/OP/06/2011 (2012).
75 Karim (2015), pp. 134–138.
76 For instance: Article 11 of MARPOL; Article 13 (3) of the Basel Convention; Article 14 of the
Ballast Water Management Convention; Article III of the Protocol of 1988 relating to the International Convention for the Safety of Life at Sea, 1974 (SOLAS); Article 7 of the Kyoto Protocol to
the United Nations Framework Convention on Climate Change.
77 Wettestad (2007); Mitchell (1994), pp. 123–124; Birnie et al. (2009), pp. 242–244; Handl (1997);
Chayes and Handler Chayes (1991); Ulfstein (2008), p. 129.
78 Boyle (1991), p. 233.
79 MEPC.1/Circ.869 (2017), p. 3. The compliance reporting rate relates to the reporting of incidental
spillages, alleged discharge violations, penalties imposed for MARPOL 73/78 violations, among
others.
80 Chayes and Handler Chayes (1991), Boyle (1991) and Wettestad (2007).
Regime Interaction and GAIRS
31