publicly available information, and shaming “lists”. On a soft law basis, the IMO has
indeed created a number of standard forms and utilized technological advances to
enhance self-regulation. Nonetheless, the success of this soft approach has been
modest. Much can be done to improve transparency and achieve the desired naming
and shaming effect. Particularly, the IMO should provide a comprehensive and
authoritative analysis of complying and non-complying ports.
81 At present, the
information is scattered and provided by shipping organizations on an ad-hoc
basis. In fact, there is a perception that reporting is irrelevant, since the IMO does
not use the information received in any meaningful manner.
82 Binding regulation
could be a positive step forward in addressing some challenges in respect of port
reception facilities, such as allowing developing States to provide regional reception
facilities or establishing a fund for financing the design and construction of port
reception facilities. This alternative seems, however, unrealistic given that States
have consistently failed to establish regulations in relation to port reception facilities.
Nonetheless, State Parties must consider strengthening the enforcement capabilities of the IMO, including providing the IMO Secretary with the power to begin
rule-making processes,
83 and to conduct auditing schemes so as to improve supervision and scrutiny. Since 2003, a voluntary Member State Audit Scheme was
developed to enhance the implementation and enforcement of several IMO
treaties,
84 e.g., MARPOL. Audit standards are found in the IMO Instruments
Implementation Code (III CODE). This code guides States in fulfilling their obligations as flag, port, or coastal States in relation to: safety of life at sea; prevention of
pollution from ships; standards of training, certification, and watch keeping for
seafarers; load lines; tonnage measurement of ships; and regulations for preventing
collisions at sea.
85 In January 2016, this voluntary audit scheme together with III
Code became mandatory in several instruments, including MARPOL.
86 This initiative should be welcomed because it reflects a political commitment to strengthen the
IMO and to increase its supervisory functions. If possible, the results of the audits
should be publicly available for scrutiny.
81 Tan accurately points out that “what has not been attempted to date is a detailed analysis by IMO
of the industry information provided so as to compile authoritative lists . . . ports and States are
largely immune to criticism by industry actors . . . criticism by IMO, however, cannot be so easily
ignored.” Tan (2006), p. 379.
82 Ibid, p. 373.
83 Ibid, pp. 369–373.
84 Assembly of the IMO: Resolution A. 946(23) (2003).
85 Assembly of the IMO: Resolution A.1070(28) (2013).
86 Resolution MEPC.247(66) (2014).
32
G. Argüello
indeed created a number of standard forms and utilized technological advances to
enhance self-regulation. Nonetheless, the success of this soft approach has been
modest. Much can be done to improve transparency and achieve the desired naming
and shaming effect. Particularly, the IMO should provide a comprehensive and
authoritative analysis of complying and non-complying ports.
81 At present, the
information is scattered and provided by shipping organizations on an ad-hoc
basis. In fact, there is a perception that reporting is irrelevant, since the IMO does
not use the information received in any meaningful manner.
82 Binding regulation
could be a positive step forward in addressing some challenges in respect of port
reception facilities, such as allowing developing States to provide regional reception
facilities or establishing a fund for financing the design and construction of port
reception facilities. This alternative seems, however, unrealistic given that States
have consistently failed to establish regulations in relation to port reception facilities.
Nonetheless, State Parties must consider strengthening the enforcement capabilities of the IMO, including providing the IMO Secretary with the power to begin
rule-making processes,
83 and to conduct auditing schemes so as to improve supervision and scrutiny. Since 2003, a voluntary Member State Audit Scheme was
developed to enhance the implementation and enforcement of several IMO
treaties,
84 e.g., MARPOL. Audit standards are found in the IMO Instruments
Implementation Code (III CODE). This code guides States in fulfilling their obligations as flag, port, or coastal States in relation to: safety of life at sea; prevention of
pollution from ships; standards of training, certification, and watch keeping for
seafarers; load lines; tonnage measurement of ships; and regulations for preventing
collisions at sea.
85 In January 2016, this voluntary audit scheme together with III
Code became mandatory in several instruments, including MARPOL.
86 This initiative should be welcomed because it reflects a political commitment to strengthen the
IMO and to increase its supervisory functions. If possible, the results of the audits
should be publicly available for scrutiny.
81 Tan accurately points out that “what has not been attempted to date is a detailed analysis by IMO
of the industry information provided so as to compile authoritative lists . . . ports and States are
largely immune to criticism by industry actors . . . criticism by IMO, however, cannot be so easily
ignored.” Tan (2006), p. 379.
82 Ibid, p. 373.
83 Ibid, pp. 369–373.
84 Assembly of the IMO: Resolution A. 946(23) (2003).
85 Assembly of the IMO: Resolution A.1070(28) (2013).
86 Resolution MEPC.247(66) (2014).
32
G. Argüello