Reforming the international law and policy on marine oil pollution

Journal of Maritime Law and Commerce

Volumn 31, Issue 1, 2000, Pages 65-87

  Duruigbo, Emeka ^a  

^a NONE

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EID: 0034423931     PISSN: 00222410     EISSN: None     Source Type: Journal    
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References (168)

1. The furor that surrounded the enactment of the Canadian Arctic Waters Pollution Prevention Act (now R.S.C. 1985, c. A12) clearly illustrates this. Concerned by the danger posed to the arctic environment, the Government of Canada in April 1970 introduced into Parliament the Arctic Waters Pollution Prevention Bill. The object was to assert Canadian jurisdiction for pollution prevention in all waters up to 100 nautical miles from every point of Canadian land above the 60th parallel of north latitude. This action was swiftly challenged as being at variance with international law. In a formal note issued on April 15, 1970, the United States Department of State objected to Canada's plan, stating that international law provided no basis for the proposed unilateral extension of jurisdiction on the high seas, and that it would neither accept nor acquiesce in the assertion of such jurisdiction. In justification of its action, the Canadian Government responded that it was based on, among others, the international right of self-defense, arguing that a danger to the environment of a state constitutes a threat to its security. See further Beesley, Rights and Responsibilities of Arctic Coastal States: The Canadian View, 3 J. Mar. L. & Com. 1 (1972); Gold, Pollution of the Sea and International Law: A Canadian Perspective, 3 J. Mar. L. & Com. 13 (1972); Neuman, Oil in Troubled Waters: The International Control of Marine Pollution, 2 J. Mar. L. & Com. 349 (1971).
2. The furor that surrounded the enactment of the Canadian Arctic Waters Pollution Prevention Act (now R.S.C. 1985, c. A12) clearly illustrates this. Concerned by the danger posed to the arctic environment, the Government of Canada in April 1970 introduced into Parliament the Arctic Waters Pollution Prevention Bill. The object was to assert Canadian jurisdiction for pollution prevention in all waters up to 100 nautical miles from every point of Canadian land above the 60th parallel of north latitude. This action was swiftly challenged as being at variance with international law. In a formal note issued on April 15, 1970, the United States Department of State objected to Canada's plan, stating that international law provided no basis for the proposed unilateral extension of jurisdiction on the high seas, and that it would neither accept nor acquiesce in the assertion of such jurisdiction. In justification of its action, the Canadian Government responded that it was based on, among others, the international right of self-defense, arguing that a danger to the environment of a state constitutes a threat to its security. See further Beesley, Rights and Responsibilities of Arctic Coastal States: The Canadian View, 3 J. Mar. L. & Com. 1 (1972); Gold, Pollution of the Sea and International Law: A Canadian Perspective, 3 J. Mar. L. & Com. 13 (1972); Neuman, Oil in Troubled Waters: The International Control of Marine Pollution, 2 J. Mar. L. & Com. 349 (1971).
3. The furor that surrounded the enactment of the Canadian Arctic Waters Pollution Prevention Act (now R.S.C. 1985, c. A12) clearly illustrates this. Concerned by the danger posed to the arctic environment, the Government of Canada in April 1970 introduced into Parliament the Arctic Waters Pollution Prevention Bill. The object was to assert Canadian jurisdiction for pollution prevention in all waters up to 100 nautical miles from every point of Canadian land above the 60th parallel of north latitude. This action was swiftly challenged as being at variance with international law. In a formal note issued on April 15, 1970, the United States Department of State objected to Canada's plan, stating that international law provided no basis for the proposed unilateral extension of jurisdiction on the high seas, and that it would neither accept nor acquiesce in the assertion of such jurisdiction. In justification of its action, the Canadian Government responded that it was based on, among others, the international right of self-defense, arguing that a danger to the environment of a state constitutes a threat to its security. See further Beesley, Rights and Responsibilities of Arctic Coastal States: The Canadian View, 3 J. Mar. L. & Com. 1 (1972); Gold, Pollution of the Sea and International Law: A Canadian Perspective, 3 J. Mar. L. & Com. 13 (1972); Neuman, Oil in Troubled Waters: The International Control of Marine Pollution, 2 J. Mar. L. & Com. 349 (1971).
4. The international character and implications of marine pollution has been given judicial imprimatur by the Supreme Court of Canada. See R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401.
5. See Reif, International Environmental Law, in Environmental Law and Business in Canada 71 (G. Thompson et al. eds. 1993).
6. Neuman, supra note 1, at 351.
7. Id. at 351-52.
8. Ayorinde, Inconsistencies Between OPA '90 and MARPOL 73/78: What is the Effect on Legal Rights and Obligations of the United States and Other Parties to MARPOL 73/78?, 25 J. Mar. L. & Com. 55 (1994).
9. Abecassis, Marine Oil Pollution Laws: The View of Shell International Marine Limited, 8 Int'l Bus. Law 3 (1980). This is not merely hypothetical, as illustrated by past tanker accidents. See Sweeney, Oil Pollution of the Oceans, 37 Fordham L. Rev. 115, 156 (1968).
10. Abecassis, Marine Oil Pollution Laws: The View of Shell International Marine Limited, 8 Int'l Bus. Law 3 (1980). This is not merely hypothetical, as illustrated by past tanker accidents. See Sweeney, Oil Pollution of the Oceans, 37 Fordham L. Rev. 115, 156 (1968).
11. Alcock, "Ecology Tankers" and the Oil Pollution Act of 1990: A History of Efforts to Require Double Hulls on Oil Tankers, 19 Ecology L.Q. 97, 126 (1992).
12. Meese, When Jurisdictional Interests Collide: International, Domestic, and State Efforts to Prevent Vessel Source Oil Pollution, 12 Ocean Dev. & Int'l L. 71, 86 (1982).
13. Mensah, International Environmental Law: International Conventions Concerning Oil Pollution at Sea, 8 Case W. Res. J. Int'l L. 110, 111 (1976).
14. Gold, supra note 1, at 44.
15. See A. Kiss & D. Shelton, International Environmental Law 109 (1991).
16. See art. 38 of the Statute of the International Court of Justice, 59 Stat. 1055, T.S. No. 993 (1945).
17. The use of the word "civilized" has been condemned by developing states who regard it as offensive and exclusive. See Okeke, International Law in the Nigerian Legal System, 27 Cal. W. Int'l L.J. 311, 315 (1997). The term is now considered obsolete. See Reif, supra note 3, at 73.
18. The use of the word "civilized" has been condemned by developing states who regard it as offensive and exclusive. See Okeke, International Law in the Nigerian Legal System, 27 Cal. W. Int'l L.J. 311, 315 (1997). The term is now considered obsolete. See Reif, supra note 3, at 73.
19. Bodansky, Protecting the Marine Environment from Vessel-Source Pollution: UNCLOS III and Beyond, 18 Ecology L.Q. 719, 726 (1991).
20. Preliminary Conference on Oil Pollution of Navigable Waters, T.S. No. 736-A (1926). The effort was not a success. See further C. Colombos, The International Law of the Sea 430-31 (6th ed. 1967), and Sweeney, supra note 7, at 187-89.
21. Preliminary Conference on Oil Pollution of Navigable Waters, T.S. No. 736-A (1926). The effort was not a success. See further C. Colombos, The International Law of the Sea 430-31 (6th ed. 1967), and Sweeney, supra note 7, at 187-89.
22. D. Brubaker, Marine Pollution and International Law 119 (1993).
23. 12 U.S.T. 2989, T.I.A.S. No. 4900, 327 U.N.T.S. 3 (1954).
24. 12 U.S.T. 2989, T.I.A.S. No. 4900, 327 U.N.T.S. 3 (1954).
25. IMCO Doc. MP/CONF/WP 35, Nov. 2, 1973, reprinted at 12 I.L.M. 1319 (1973).
26. The Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, IMCO Doc. TSPP/CONF/11, Feb. 16, 1978, reprinted at 17 I.L.M. 546 (1978).
27. U.N. Doc. A/CONF.62/122, Oct. 7, 1982, reprinted at 21 I.L.M. 1261 (1982).
28. Gold, supra note 1, at 19.
29. See art. III.
30. See art. III(3).
31. Gold, supra note 1, at 19.
32. R. M'Gonigle & M. Zacher, Pollution, Politics, and International Law: Tankers at Sea 219 (1979). See also Bilder, The Canadian Arctic Waters Pollution Prevention Act: New Stresses on the Law of the Sea, 69 Mich. L. Rev. 1, 34 (1970) (arguing that OILPOL adopted a method that has been proven to be "ineffective").
33. R. M'Gonigle & M. Zacher, Pollution, Politics, and International Law: Tankers at Sea 219 (1979). See also Bilder, The Canadian Arctic Waters Pollution Prevention Act: New Stresses on the Law of the Sea, 69 Mich. L. Rev. 1, 34 (1970) (arguing that OILPOL adopted a method that has been proven to be "ineffective").
34. Wulf, Contiguous Zones for Pollution Control, 3 J. Mar, L. & Com. 537, 541 (1972). The author's contention is based on the difficulties associated with proving in a court of law that a given discharge contained the requisite proportion of oil.
35. Kirby, The Clean Seas Code: A Practical Cure of Operational Pollution in International Conference on Oil Pollution of the Sea, held in Rome on Oct. 7-9, 1968, at 201, 209.
36. Especially by concentrating enforcement powers in the flag state. Indeed, OILPOL also failed in its lack of appreciation of the fact that pollutants legally discharged outside the designated prohibited zones could afterwards drift into the prohibited zones. It could then be said to approbate and reprobate simultaneously - affording protection to coastal states with one hand and withdrawing it with the other.
37. This was an aftermath of the formation in 1958 of the Inter-Governmental Maritime Consultative Organization (which later metamorphosed into the International Maritime Organization (IMO)).
38. 600 U.N.T.S. 332 (1962).
39. M'Gonigle & Zacher, supra note 26, at 222.
40. In the LOT system, a special tank in the vessel is used to collect the oily mixture that ordinarily would have been discharged. This material goes through a separation process and the water is drained from the bottom. Consequently, new cargo can be loaded on top of the residue of oil.
41. Pritchard, Load on Top-From the Sublime to the Absurd, 9 J. Mar. L. & Com. 185, 187 (1978).
42. Brubaker, supra note 17, at 122.
43. IMCO Doc. MP/CONF/WP.21 of Oct. 31, 1973.
44. IMCO Doc. MP/CONF/WP.21/Add.1 of Oct. 31, 1973.
45. Annex III (IMCO Doc. MP/CONF/WP.21/Add.2 of Oct. 31, 1973) deals with harmful substances carried by sea in packaged forms or in freight containers, portable tanks, or road and rail tank wagons. Annex IV (IMCO Doc. MP/CONF/WP.21/Add.3 of Oct. 31, 1973) controls sewage. Annex V (IMCO Doc. MP/CONF/WP.21/Add.4 of Oct. 31, 1973) applies to garbage. Both the compulsory Annex II and the optional Annexes III-V are beyond the scope of this article.
46. These include the whole of the Mediterranean sea, the Baltic, Black, and Red seas, and the Persian Gulf. See Regulation 10.
47. Regulation 9(1)(a)(ii).
48. Regulation 9(1)(a)(iii)-(vi).
49. Essentially those ordered after Dec. 31, 1975; see Regulation 1(6).
50. Regulation I and Appendix I; see generally D. Abecassis & R. Jarashow, Oil Pollution from Ships 29-30 (2d ed. 1985).
51. Id. at 73-74.
52. Regulations 4-6.
53. Art. 5(1).
54. Art. 6; see also Regulations 9(3) and 10(6).
55. See Regulations 15-16. It was thought that such a requirement would help strengthen the evidence of violations and obviate the perceived pitfalls in the LOT system, which placed heavy reliance on the human element in the implementation of discharge standards. At the time of the conclusion of the Convention, however, there were no commercially-viable monitoring systems available. See Curtis, Vessel-Source Oil Pollution and MARPOL 73/78: An International Success Story?, 15 Envtl. L, 679, 695 (1985).
56. See supra note 20.
57. The Protocol entered into force in October 1983 following the October 1982 ratification by Greece and Italy, thus fulfilling the requirements of Art. V, which stated that the Protocol was to enter into force 12 months after the date on which not less than 15 states, the combined merchant fleets of which constituted not less than 50% of the gross tonnage of the world's merchant shipping, had become parties. See 5 Current Reports, Int'l Env't Rep. (BNA), Oct. 13, 1982, at 432.
58. Regulation 13(b)(3).
59. Art. 4(1).
60. Art. 4(2)(a).
61. Art. 4(2)(b).
62. Art. 6(5).
63. Art. 5(2).
64. Art. 7.
65. Art. 8 and Protocol 1.
66. See MARPOL 73/78 Amended for New and Existing Tankers, [1992] 2 IMO News 3.
67. Griffin, MARPOL 73/78 and Vessel Pollution: A Glass Half Full or Half Empty?, 1 Ind. J. Global Legal Stud. 489, 490 (1994).
68. Id.
69. See Brubaker, supra note 17, at 253 (calling for an upgrading of port state inspection and detainment procedures for ships showing substantial non-compliance with MARPOL 73/78 standards).
70. R. Mitchell, Intentional Oil Pollution at Sea 99 (1994). See also M'Gonigle & Zacher, supra note 26, at 231-34. The authors are also of the view that some coastal states traded port state enforcement, a procedural power, for the more substantial coastal state jurisdiction which they hoped to get at the third United Nations Conference on the Law of the Sea.
71. R. Mitchell, Intentional Oil Pollution at Sea 99 (1994). See also M'Gonigle & Zacher, supra note 26, at 231-34. The authors are also of the view that some coastal states traded port state enforcement, a procedural power, for the more substantial coastal state jurisdiction which they hoped to get at the third United Nations Conference on the Law of the Sea.
72. Mitchell, supra note 63, at 103.
73. Brubaker, supra note 17, at 141 n.44.
74. Indeed, like earlier conventions, MARPOL 73/78 suffers from lax state enforcement practices and a lack of compliance by member states in providing reception facilities for vessels carrying their discharges from port to port. Id. at 249.
75. It is conceded that this is a general problem in international law. Thus, another structure to augment the extant legal stipulations will be suggested in the course of this article.
76. Curtis, supra note 48, at 705.
77. The Convention came into force in November 1994 (i.e., one year after the deposit of the 60th instrument of ratification). See P. Birnie & A. Boyle, Basic Documents in International Law and the Environment 153 (1995).
78. Chinkin, Remarks, 82 Proc. Am. Soc. Int'l L. 371, 389 (1988).
79. See Reif, International Environmental and Human Rights Law: The Role of Soft Law in the Evolution of Procedural Rights to Information, Participation in Decisionmaking, and Access to Domestic Remedies in Environmental Matters, in Trilateral Perspectives on International Legal Issues: Relevance to Domestic Law and Policy 73, 78 (M. Young & Y. Iwasawa eds. 1996).
80. A contrary argument has been presented to the effect that the potential disadvantages of treaties notwithstanding, "the reality is that the process of negotiating a soft law instrument can often be as complex and lengthy as that for the negotiation of a treaty." Chinkin, The Challenge of Soft Law: Development and Change in International Law, 38 Int'l Comp. L.Q. 850, 860 (1989).
81. Magraw, International Law and Pollution, in International Law and Pollution 3, 11 (D. Magraw ed. 1991).
82. On how Part XI affected the reception and ratification of the Law of the Sea Convention, see, e.g., S. Mahmoudi, The Law of Deep Sea Bed Mining (1987), and Charney, U.S. Provisional Application of the 1994 Deep Seabed Agreement, 88 Am. J. Int'l L. 705 (1994).
83. See Part XII, consisting of arts. 192-237.
84. Meese, supra note 9, at 89.
85. Arts. 192, 194.
86. Bodansky, supra note 15, at 741.
87. Arts. 211 and 217; but see McDorman, Port State Enforcement: A Comment on Article 218 of the 1982 Law of the Sea Convention, 28 J. Mar. L. & Com. 305, 322 (1997) (arguing that port states are not estopped from exercising prescriptive jurisdiction on the high seas).
88. THe EEZ, an area of 200 nautical miles from the continental baselines, was created by the LOSC. Before the Convention came into force, however, the EEZ had become a rule of customary international law, having satisfied the two requirements for such, i.e., widespread state practice and opinio juris (a psychological component defined as a conviction felt by a state that a certain practice is required by international law and which distinguishes common practices motivated by a legal obligation from common practices done out of expediency or convenience). See Editors of the Harvard Law Review, Trends in International Environmental Law 28 n.73 (1992).
89. Art. 211(6)(c).
90. Arts. 24 and 211(4).
91. Art. 234.
92. Wang, A Review of the Enforcement Regime for Vessel-Source Oil Pollution Control, 16 Ocean Dev. & Int'l L. 305, 326 (1986).
93. M'Gonigle & Zacher, supra note 26, at 246-47.
94. Boyle, Marine Pollution Under the Law of the Sea Convention, 79 Am. J. Int'l L. 347, 362 (1985).
95. Id. at 362-63.
96. Art. 217.
97. Art. 217(2).
98. Art. 220(2).
99. Art. 220(6).
100. Art. 220(5).
101. They demonstrate, however, the imprecision with which provisions in international agreements are sometimes couched to elicit widespread acceptance where it is perceived that states do not want to commit themselves to clearly defined and workable obligations.
102. Art. 220 (3).
103. Art. 220(1).
104. Arr. 218.
105. Art. 218(2). For those occurring on the high seas, no such limitation exists.
106. McDorman, supra note 78, at 322.
107. See Boehmer-Christiansen, Marine Pollution Control: UNCLOS III as the Partial Codification of International Practice, 7 Envtl. Pol'y & L. 71, 73 (1981).
108. Bernhardt, A Schematic Analysis of Vessel-Source Pollution: Prescriptive and Enforcement Regimes in the Law of the Sea Conference, 20 Va. J. Int'l L. 265, 307-08 (1980).
109. Art. 228(1).
110. Art. 221.
111. Boyle, supra note 85, at 369. Under the Intervention Convention (The International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, Brussels, Nov. 29, 1969, reprinted at 9 I.L.M. 25 (1970)), which was a direct response to the Torrey Canyon disaster, coastal states are permitted to take measures against foreign vessels on the high seas that are in imminent danger of causing pollution damage. For a critique of the Intervention Convention, see Dinstein, Oil Pollution by Ships and Freedom of the High Seas, 3 J. Mar. L. & Com. 363 (1972).
112. Boyle, supra note 85, at 369. Under the Intervention Convention (The International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, Brussels, Nov. 29, 1969, reprinted at 9 I.L.M. 25 (1970)), which was a direct response to the Torrey Canyon disaster, coastal states are permitted to take measures against foreign vessels on the high seas that are in imminent danger of causing pollution damage. For a critique of the Intervention Convention, see Dinstein, Oil Pollution by Ships and Freedom of the High Seas, 3 J. Mar. L. & Com. 363 (1972).
113. Art. 211(7). The right to notification applies to all pollution incidents.
114. Art. 198.
115. Art. 235.
116. Kiss &Shelton, supra note 12, at 159.
117. M'Gonigle & Zacher, supra note 26, at 241-51.
118. Boyle, supra note 85, at 370.
119. See Safer Ships, Cleaner Seas: Report of Lord Donaldson's Inquiry into the Prevention of Pollution from Merchant Shipping ¶ 3.4 (1994), wherein the Committee, relying on data from the 50th Report of the Joint Group of Experts on Scientific Aspects of Marine Pollution, sought to illustrate the decline of quantities of oil reaching the sea since more stringent regulations were introduced. Friends of the Earth International, an environmental group, objected to this conclusion on the ground that the Committee had used inconsistent figures. See Wallace, "Safer Ships, Cleaner Seas": The Report of the Donaldson Inquiry into the Prevention of Pollution from Merchant Shipping, [1995] LMCLQ 404, 405.
120. Shihata, Implementation, Enforcement and Compliance with International Environmental Agreements-Practical Suggestions in Light of the World Bank's Experience, 9 Geo. Int'l Envtl. L. Rev. 37 (1997).
121. Louka, Cutting the Gordian Knot: Why International Environmental Law is Not Only About the Protection of the Environment, 10 Temp. Int'l & Comp. L.J. 79 (1996).
122. Brierly, The Shortcomings of International Law, in The Basis of Obligation in International Law and Other Papers 68 (H. Lauterpacht & E. Waldock eds. 1958), cited in Dempsey, Compliance and Enforcement in International Law - Oil Pollution of the Marine Environment by Ocean Vessels, 6 Nw. J. Int'l L. & Bus. 459, 526 (1984).
123. Brierly, The Shortcomings of International Law, in The Basis of Obligation in International Law and Other Papers 68 (H. Lauterpacht & E. Waldock eds. 1958), cited in Dempsey, Compliance and Enforcement in International Law - Oil Pollution of the Marine Environment by Ocean Vessels, 6 Nw. J. Int'l L. & Bus. 459, 526 (1984).
124. Shihata, supra note 110.
125. Sir Colin Goad, former IMCO Secretary General, quoted in M'Gonigle & Zacher, supra note 26, at 327.
126. E. Brown, The Legal Regime of Hydrospace 138 (1971).
127. Holdsworth, Convention on Oil Pollution Amended, 1 Marine Pollution Bull. 168 (Nov. 1970).
128. Reisman, Sanctions and Enforcement, in 3 Conflict Management: The Future of the International Legal Order 273, 275 (C. Black & R. Falk eds. 1971).
129. 1982 4 IMO News 10.
130. Mensah, supra note 10, at 117 (quoting the International Convention for the Prevention of Pollution from Ships, fourth preambular paragraph).
131. Lord Donaldson's report, supra note 109.
132. Kindt, The Effect of Claims by Developing Countries on LOS International Marine Pollution Negotiations, 20 Va. J. Int'l L. 313, 315 (1980).
133. Hardin, The Tragedy of the Commons, 162 Sci. 1243 (1968). Professor Hardin's thesis, using the example of a common grazing ground, is that there is a tendency for every herdsman to keep on adding to his herd to maximize gains without considering that other herdsmen would also take a similar course, thereby depleting the resources of the commons. Therein is the tragedy. Each man is locked into a system that compels him to increase his herd without limit - in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all. Id. at 1244.
134. Saunders, The Economic Approach, in Environmental Law and Policy 363, 373 (E. Hughes et al. eds. 1993).
135. Editors of the Harvard Law Review, supra note 79, at 17.
136. R. Fisher, Improving Compliance with International Law 350 (1981).
137. This is an age old problem. See Lowe, The Enforcement of Marine Pollution Regulations, 12 San Diego L. Rev. 624 (1975).
138. Goldie, Environmental Catastrophes and Flags of Convenience - Does the Present Law Pose Special Liability Issues?, 3 Pace Y.B. Int'l L. 63 (1991).
139. Payne, Flags of Convenience and Oil Pollution: A Threat to National Security, 3 Hous. J. Int'l L. 67 (1980).
140. See http://sedac.ciesin.org/entri.
141. See G. Danilenko, Law-Making in the International Community 67 (1993).
142. problems that state sovereignty bring to marine pollution issues prompted one writer to conclude, "[t]he common, long-term interest of humanity must first develop an ingenuity and influence surpassing that of national sovereignty before vessel-source pollution can be effectively controlled." Dempsey, supra note 112, at 561.
143. See Preparatory Committee for the United Nations Conference on Environment and Development, Protection of Oceans, All Kinds of Seas Including Enclosed and Semi-enclosed Seas, Coastal Areas and the Protection, Rational Use and Development of Their Living Resources, U.N. Doc. A/CONF. 151/PC/ 100/Add.21 (1991).
144. Art. 17.
145. Mitchell, supra note 63, at 208.
146. See Shaw et al., A Proposal to Eliminate Marine Oil Pollution, 27 Nat. Resources J. 157 (1987), who argue that maritime oil pollution could directly be traced to the prominence of petroleum as the economic basis of the industrialized world.
147. A number of strong port state schemes have been introduced in different parts of the world, both internationally and regionally. See, for instance, IMO's Resolution A787 (19) - Procedures for Port State Control (adopted Nov. 23, 1995). See generally Hare, Port State Control: Strong Medicine to Cure a Sick Industry, 26 Ga. J. Int'l & Comp. L. 571 (1997).
148. Anderson, The Nationality of Ships and Flags of Convenience: Economics, Politics, and Alternatives, 21 Tul. Mar. L.J. 139, 168 (1996) ("If [a] vessel owner does not want to correct an infraction and is barred from a port state, it is likely that he may still trade amongst the developing countries which have fewer resources to conduct port state inspections.").
149. Neuman, supra note 1, at 351-52; Ayorinde, supra note 6.
150. Neuman, supra note 1, at 351-52; Ayorinde, supra note 6.
151. Goldie, supra note 127, at 89. But see McConnell, "... Darkening Confusion Mounted Upon Darkening Confusion": The Search for the Elusive Genuine Link, 16 J. Mar. L. & Com. 365, 368 (1985), who argues that many open registry fleets are composed of modern, well-maintained vessels.
152. Goldie, supra note 127, at 89. But see McConnell, "... Darkening Confusion Mounted Upon Darkening Confusion": The Search for the Elusive Genuine Link, 16 J. Mar. L. & Com. 365, 368 (1985), who argues that many open registry fleets are composed of modern, well-maintained vessels.
153. See Ademuni-Odeke, Port State Control and U.K. Law, 28 J. Mar. L. & Com. 657 (1997). But see McConnell, supra note 139, who contends that flags of convenience states have begun enforcing safety standards and inspections in compliance with international rules.
154. See Ademuni-Odeke, Port State Control and U.K. Law, 28 J. Mar. L. & Com. 657 (1997). But see McConnell, supra note 139, who contends that flags of convenience states have begun enforcing safety standards and inspections in compliance with international rules.
155. See Kasoulides, The 1986 United Nations Convention on the Conditions for the Registration of Vessels and the Question of Open Registry, 20 Ocean Dev. & Int'l L. 543, 547 (1989), for a list of open registry states from 1930-86.
156. The Rochdale Committee on Shipping set up by the British Government found that a typical open registry state is a small power to whom receipts from the business might make a difference on national income and balance of payments. See Committee of Inquiry into Shipping, Report 51 (1970) Cmnd 4337.
157. In a report of a study published in 1989, flag states were shown to have taken action in only 17% of referrals by North Sea states. See Stoop, Olieverontreiniging Door Schepen Op Der Noordzee Over De Periode 1982-1987: Opsporing En Vervolging (July 1989), cited in Mitchell, supra note 63, at 163.
158. In a report of a study published in 1989, flag states were shown to have taken action in only 17% of referrals by North Sea states. See Stoop, Olieverontreiniging Door Schepen Op Der Noordzee Over De Periode 1982-1987: Opsporing En Vervolging (July 1989), cited in Mitchell, supra note 63, at 163.
159. See Boehmer-Christiansen, supra note 98.
160. In the case of a flag state, it may not have the financial capacity to equip a navy that would be of such size and competence as to be able to police a massive merchant fleet. Practically, also, some of these ships may not visit the ports of the flag state for a long time if the flag state is a minor maritime power or its ports are simply outside the ship's trading routes. See further Dempsey, supra note 112, at 526; Dempsey & Helling, Oil Pollution by Ocean Vessels-Environmental Tragedy: The Legal Regime of Flags of Convenience, Multilateral Conventions, and Coastal States, 10 Denv. J. Int'l L. & Pol'y 37, 63 (1980).
161. In the case of a flag state, it may not have the financial capacity to equip a navy that would be of such size and competence as to be able to police a massive merchant fleet. Practically, also, some of these ships may not visit the ports of the flag state for a long time if the flag state is a minor maritime power or its ports are simply outside the ship's trading routes. See further Dempsey, supra note 112, at 526; Dempsey & Helling, Oil Pollution by Ocean Vessels-Environmental Tragedy: The Legal Regime of Flags of Convenience, Multilateral Conventions, and Coastal States, 10 Denv. J. Int'l L. & Pol'y 37, 63 (1980).
162. See generally M'Gonigle & Zacher, supra note 26, and Mitchell, supra note 63, detailing how these corporations have put their interests above the general well-being of humanity by frustrating legitimate moves to address marine pollution problems and influencing the outcome of international deliberations to their advantage. See also Kasoulides, supra note 141, at 565, who contends that multinational corporations are the main participants in flags of convenience shipping with the primary purpose being profit maximization.
163. See generally M'Gonigle & Zacher, supra note 26, and Mitchell, supra note 63, detailing how these corporations have put their interests above the general well-being of humanity by frustrating legitimate moves to address marine pollution problems and influencing the outcome of international deliberations to their advantage. See also Kasoulides, supra note 141, at 565, who contends that multinational corporations are the main participants in flags of convenience shipping with the primary purpose being profit maximization.
164. See Fowler, International Environmental Standards for Transnational Corporations, 25 Envtl. L. 1 (1995).
165. THe GEF was established in 1991 as a pilot project by the World Bank. Today, its operations are handled by an arrangement among the World Bank, the United Nations Environment Programme, and the United Nations Development Programme. See Saunders, Development Cooperation and Compliance with International Environmental Law: Past Experience and Future Prospects, in Trilateral Perspectives on International Legal Issues: From Theory into Practice 89, 100 n.45 (T. Schoenbaum et al. eds. 1998); World Bank, Documents Concerning the Establishment of the Global Environment Facility, reprinted at 30 I.L.M. 1739 (1991); Instrument for the Establishment of the Restructured Global Environment Facility (Report of the GEF Participants Meeting, Geneva, Mar. 14-16, 1994), reprinted at 33 I.L.M. 1273 (1994).
166. THe GEF was established in 1991 as a pilot project by the World Bank. Today, its operations are handled by an arrangement among the World Bank, the United Nations Environment Programme, and the United Nations Development Programme. See Saunders, Development Cooperation and Compliance with International Environmental Law: Past Experience and Future Prospects, in Trilateral Perspectives on International Legal Issues: From Theory into Practice 89, 100 n.45 (T. Schoenbaum et al. eds. 1998); World Bank, Documents Concerning the Establishment of the Global Environment Facility, reprinted at 30 I.L.M. 1739 (1991); Instrument for the Establishment of the Restructured Global Environment Facility (Report of the GEF Participants Meeting, Geneva, Mar. 14-16, 1994), reprinted at 33 I.L.M. 1273 (1994).
167. THe GEF was established in 1991 as a pilot project by the World Bank. Today, its operations are handled by an arrangement among the World Bank, the United Nations Environment Programme, and the United Nations Development Programme. See Saunders, Development Cooperation and Compliance with International Environmental Law: Past Experience and Future Prospects, in Trilateral Perspectives on International Legal Issues: From Theory into Practice 89, 100 n.45 (T. Schoenbaum et al. eds. 1998); World Bank, Documents Concerning the Establishment of the Global Environment Facility, reprinted at 30 I.L.M. 1739 (1991); Instrument for the Establishment of the Restructured Global Environment Facility (Report of the GEF Participants Meeting, Geneva, Mar. 14-16, 1994), reprinted at 33 I.L.M. 1273 (1994).
168. See 1982 Paris Memorandum of Understanding on Port State Control in Implementing Agreements on Maritime Safety and the Protection of the Marine Environment (MOU), reprinted at 21 I.L.M. 1 (1982). The rationale behind this point is that the avoidance of European states by substandard vessels will not eradicate the problem of marine oil pollution because such ships are still at liberty to trade with states with lower port standards.