and Maritime Security LawThe IMLI manual on international maritime law

THE IMLI MANUAL ON INTERNATIONAL

MARITIME LAW

THE IMLI MANUAL

ON INTERNATIONAL

MARITIME LAW

Volume III: Marine Environmental Law

and Maritime Security Law

General Editor

DAVID JOSEPH ATTARD

Edited by

MALGOSIA FITZMAURICE

NORMAN A MARTÍNEZ GUTIÉRREZ

RIYAZ HAMZA

The opinions and views expressed in the Chapters of this Manual are those

of their respective authors and do not necessarily reflect the opinions

or views of IMO, its Secretariat, or IMLI.

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1

To those who serve the rule of international maritime law

FOREWORD

Established in 1948 as a specialized agency of the United Nations, the Interna￾tional Maritime Organization (IMO) is the global standard-setting authority for

the safety, security, and environmental performance of ships engaged in interna￾tional trade. Its primary function is to create, and keep up to date in the light of

emerging needs, a regulatory framework for the shipping industry that is univer￾sally implemented within effective national maritime administration structures. In

this respect, IMO also provides the international inter-governmental forum in

which the process of agreement, adoption, and implementation of regulations and

standards takes place.

Building on its mandate, which now encompasses energy efficiency, new technol￾ogy and innovation, maritime education and training, maritime safety and secur￾ity, vessel traffic management, facilitation of maritime traffic, and the development

of the maritime infrastructure, IMO is now responsible for more than fifty inter￾national treaties and has adopted related thereto amendments to ensure that its

global standards meet emerging challenges and keep abreast with developments in

shipping technology.

The success of IMO’s adopted legal framework depends primarily on its adoption,

incorporation, and effective implementation by States. For this purpose IMO has

established a dedicated technical cooperation programme which assists States to

develop the necessary legislative frameworks and maritime administration struc￾tures and thereby implement IMO standards fully and effectively. The Organiza￾tion has also recognized that, in parallel with the provision of technical

cooperation programmes, it is of paramount importance to foster human resource

development and institutional capacity building. With this in mind, IMO estab￾lished the International Maritime Law Institute (IMLI) in 1988. Located in Malta,

under the patronage of the Government of Malta, IMLI has been IMO’s focal

point for the training of specialists in maritime law. With more than twenty-five

years in the service of the rule of international maritime law, IMLI is now truly a

centre of academic excellence contributing generally to the development and dis￾semination of knowledge and expertise in international maritime law.

To contribute even further to the international maritime community, IMLI

decided to mark its twenty-fifth anniversary with the publication of The IMLI

Manual on International Maritime Law. Volumes I and II dealing with the Law of

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the Sea and Shipping law respectively have been very well received by the interna￾tional community. It thus gives me great pleasure, as the new Chairman of the

IMLI Governing Board, to write this foreword for Volume III which studies the

areas of marine environmental law and maritime security law. These two areas of

international maritime law are not only of topical importance but are broad

enough to encompass aspects of both law of the sea and shipping law, hence their

complexity and the imperative need to dedicate them a separate volume.

IMO has been at the forefront of the progressive development of marine environ￾mental law in all its aspects. Regarding prevention, IMO adopted, and over the

years amended, the 1978 MARPOL Protocol, which is the main international

treaty covering prevention of pollution of the marine environment by ships from

operational or accidental causes. The scope of the 1978 MARPOL Protocol was

expanded to address issues relating to atmospheric pollution through the adoption

of the 1997 MARPOL Protocol.The two protocols have been complemented with

treaties dealing, inter alia, with the control of harmful anti-fouling systems on

ships (2001 AFS Convention); the prevention of the potentially devastating effects

of the spread of invasive harmful aquatic organisms carried by ships’ ballast water

and sediments (2004 BWM Convention); and the safe and environmentally sound

recycling of ships (2009 Hong Kong Convention). In so far as pollution prepared￾ness, response, and cooperation are concerned, the primary treaties adopted by

IMO are the 1990 OPRC Convention and its 2000 OPRC-HNS Protocol.

Despite best practices followed, accidents do happen, and when they do it is

important to lay down an effective framework regarding liability and compensa￾tion. In this respect, IMO has adopted a number of treaties including the 1992

CLC Convention, the 1992 Fund Convention, the 1996 HNS Convention and

the related 2010 HNS Protocol, and the 2001 Bunkers Convention.

IMO has also been very active in the development of a legal framework regarding

maritime security. To prevent unlawful acts against the safety of maritime naviga￾tion, IMO adopted the 1988 SUA Convention and 1988 SUA Protocol and their

respective protocols in 2005. Other measures to enhance maritime security

include Chapter XI-2 of the 1974 SOLAS Convention and the associated Interna￾tional Ship and Port Facility Security (ISPS) Code; a number of measures to

address the threat of piracy, armed robbery against ships, and other illicit maritime

activities; measures to reduce risks of stowaways, guidelines regarding the use of

Privately Contracted Armed Security Personnel on board ships; Guidelines for the

Prevention and Suppression of the Smuggling of Drugs, Psychotropic Substances

and Precursor Chemicals on Ships engaged in International Maritime Traffic; as

well as the development of voluntary guidelines on adequate anti-cyber security

practices.

Following the approach of the previous volumes, Volume III was written and

edited by a group of eminent academics and practitioners, who are the world’s

Foreword

viii

leading experts in their fields, in a manner that will interest both academics and

practitioners. It not only addresses the subjects from a historical and current stand￾point, but also delves in the many emerging issues that prompt the continuous

reassessment of international rules.

This is not only a monumental collection of studies, but also a true testament to

the Institute’s success. I highly recommend The IMLI Manual on International

Maritime Law to all those who have an interest in maritime affairs.

Ki-tack Lim

Secretary-General, International Maritime Organization

Chairman, IMLI Governing Board

Foreword

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PREFACE

Whilst there is a trend in certain legal literature to treat the law of the sea and ship￾ping law (or admiralty law) separately, it is submitted that these public and private

branches of international maritime law have become intimately interdependent,

particularly through the emergence and influence of international maritime treat￾ies, such as those adopted by the International Maritime Organization (IMO).

Indeed, it may be argued that they are now fused together into a single body of law.

The IMO International Maritime Law Institute (IMLI) has—for over a quarter of

a century—devoted its work to offering a holistic treatment of international mari￾time law in its various taught and research programmes of studies. I therefore felt

it would be appropriate to commemorate IMLI’s twenty-fifth anniversary by the

publication of this Manual which provides a unique and comprehensive guide to

all the major branches of international maritime law.

The IMLI Manual on International Maritime Law is divided into three volumes:

Volume I covers the Law of the Sea, Volume II is dedicated to Shipping Law, and

Volume III deals with both Marine Environmental Law and Maritime Security

Law. The Manual examines these fields of law from an international and compara￾tive perspective, and provides an in-depth analysis from the point of view of inter￾national conventions, customary law, and commercial practices. It also offers

comprehensive references and a bibliography on the subjects, so that its users have

a single source from which to branch out into even more detailed research. The

Manual has been written and edited by academics and practitioners who are lead￾ing experts in their respective fields. They have been drawn from a very wide num￾ber of legal systems, thereby ensuring that the academic and practical value of the

Manual has no geographical boundaries. All these qualities should make it essen￾tial reading to students, researchers, academics, and practitioners.

I wish to conclude by thanking the many persons who, in one way or another, have

made this project a reality. I would like to express my appreciation to Mr Ki-tack

Lim (Secretary-General of the IMO) for honouring the Institute by writing the

foreword to this Volume. I wish to thank the distinguished contributors, who have

devoted time and research in preparing their learned contributions. I also wish to

express my gratitude to my dear colleagues and fellow editors for their relentless

work in putting this Manual together. Special thanks are due toThe Nippon Foun￾dation which not only supported this project, but also contributed to its funding.

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I would also like to record my appreciation to the editorial team of Oxford Uni￾versity Press for their professional support throughout the production process

leading to the publication of this Manual.

David Joseph Attard

General Editor

1 February 2016

Preface

xii

ACKNOWLEDGEMENTS

The Editors of The IMLI Manual on International Maritime Law would like to

acknowledge the invaluable contribution of The Nippon Foundation to IMLI and

this Manual through the provision of funding within the Project ‘The Human

Resources Development Project for the Advancement of a More Effective Global

Legal Order for the Oceans’.

Dr Yohei Sasakawa, the Chairman of The Nippon Foundation, anticipated that

the twenty-first century would become the ‘century of oceans’ and established

numerous fellowships and scholarships to nurture future leaders in maritime

affairs globally.

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