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Due to the continued growth of the international cruise ship industry, its activities at
sea impose an escalating threat to the environment. The International Maritime
Organization, and international legal regimes such as MARPOL 73/78 and the United
Nations Convention on the Law of the Sea, sought to address cruise ship pollution.
However, these international regimes need to be harmonized to promote what each is
ultimately trying to achieve: protection of the world’s oceans to ensure their viability
for the present and future. The international laws currently in place are the guideposts
for all nations and are the only means to effectively regulate the cruise ship industry.
Blackwater, graywater, oily bilge water, ballast water, and other wastes discharged
from cruise ships must be restricted to limit the threat that they pose to the
sustainability of the seas and the global environment as a whole. By amending each
treaty separately in ways that acknowledge and support one another, the regulation of
pollution from the cruise ship industry can be conducted in a manner that better
respects the limited capacity of the sea to assimilate waste and regenerate natural
resources.
I. INTRODUCTION .........................................................................................28
II. THE INTERNATIONAL CRUISE SHIP INDUSTRY AND ITS EFFECTS ...........31
A. Magnitude of the Industry .........................................................31
B. Effects of Cruise Ships on the Marine Environment .................32
1. Blackwater ...........................................................................32
2. Graywater ..............................................................................33
3. Oily Bilge Water..................................................................34
4. Ballast Water .......................................................................34
5. Solid Waste..........................................................................35
III.INTERNATIONAL REGULATIONS GOVERNING THE CRUISE SHIP
INDUSTRY AND THEIR SHORTCOMINGS ............................................36
A. International Maritime Organization .........................................36
B. MARPOL 73/78 ........................................................................37
C. UNCLOS and its Relation to MARPOL 73/78 .........................43
1. Open Registry of Ships........................................................44
*Alexandra Ritucci-Chinni is a class of 2009 candidate for the Juris Doctor degree at Florida
Coastal School of Law. She received her B.A. in History from the University of Florida in 2006.
The author would like to thank her family and loved ones for always supporting her and Professor
Randall S. Abate for encouraging her writing and being her mentor.
27
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2. Jurisdiction...........................................................................45
3. Enforcement of Pollution Violations ...................................47
IV.THE INTERNATIONAL SOLUTION ............................................................50
A. The Role of the IMO .................................................................50
B. Amendments to UNCLOS.........................................................51
C. Amendments to MARPOL ........................................................52
D. Other Proposals to Promote Harmonization ..............................55
V. CONCLUSION ...........................................................................................59
I. INTRODUCTION
emerged in their place and have enjoyed continued popularity since the
1960s. 7 Cruise ships have developed greatly from their ancestor fleets of
ocean liners. In the twenty-first century, they carry three to five thousand
passengers each as compared to the few hundred passengers that ocean
liners accommodated. 8 Modern-day cruise ships additionally entertain
passengers with luxuries and attractions such as onboard casinos, theaters,
golf courses, ice-skating rinks, rock-climbing walls, shopping malls, and
spas. 9
Since companies spend up to $800 million building and outfitting each
of these ships, one imagines that they must be highly efficient, respectable,
and environmentally safe modes of transport. 10 However, this thought is a
misconception to say the least. With over 255 traveling throughout the
world, Cruise ships are a huge contributor to the destruction of its sole
venue: the seas. 11
With ten million people each year travel aboard cruise ships across the
world, one must ask: where do the waste and byproducts of their sea
excursions go? 12 Much of it ends up being released into the ocean thereby
leaving a “trail of waste includ[ing] oily bilge water, sewage, graywater. .
.ballast water, solid waste, and chemicals” behind them. 13 Whereas
passengers return to their homes after their voyages with lasting
impressions of the splendor and opulence of cruise travel, the ocean is left
marred and soiled with scraps of last night’s dinner, dirty shower water,
and human waste among other harmful pollutants. 14
Due to the continued growth of the international cruise ship industry,
its activities at sea impose an escalating threat to the environment. 15 More
explicitly, “Oceans are not, as once imagined, inexhaustible resources, so
vast that human activity can barely make a dent. In fact, the evidence is just
the opposite.” 16 Such evidence has spurred action in the international arena.
The creation of the International Maritime Organization 17 and international
18 International Convention for the Prevention of Pollution from Ships, June 1, 1978, 17
I.L.M. 546. [hereinafter MARPOL or MARPOL 73/78].
19 United Nations Convention on Law of the Sea, Dec. 10, 1982, 21 I.L.M. 1261 [hereinafter
UNCLOS].
20 Runyan, supra note 1.
21 Schulkin, supra note 15, at 109.
22 Power, supra note 12, at 154.
23 Laura K.S. Welles, Comment, Due to Loopholes in the Clean Water Act, What Can a State
Do To Combat Cruise Ship Discharge of Sewage and Gray Water? 9 OCEAN & COASTAL L.J. 99,
100 (2003).
24 Schulkin, supra note 15, at 119. This paper addresses the problems of MARPOL 73/78 in
part through an explanation of UNCLOS’s standards. Therefore, discussion of UNCLOS is
limited to how it affects the implementation of MARPOL 73/78.
25 Frank Tuerkheimer, Globalization of U.S. Law Enforcement: Does The Constitution Come
Along?, 39 HOUS. L. REV. 307, 324 (2002).
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The industry’s growth means more than just added opportunities for
people to experience leisurely vacations to foreign destinations; it signifies
the increased impact cruise ships will have on the environment. There are
five main types of water pollution that cruise ships introduce to the marine
ecosystem: blackwater, graywater, oily bilge water, ballast water, and solid
waste. 36 Each of these types of waste affects the environment as well as the
health of marine life and humans. 37
1. Blackwater
36 Power, supra note 12, at 154. In addition to polluting the waters, cruise ships pollute the
air. Cruise Ship Fact Sheet, http://www.earthisland.org/project/reportPage2.cfm?reportContentID
=111&subSiteID =6&pageID=174 (last visited Mar. 8, 2008). A ship carrying around three
thousand passengers releases the same amount of air pollution as over twelve thousand
automobiles in a single day. Id. Air pollution on ships comes from the engines and from
incinerators that are used on ships to burn solid waste. Schulkin, supra note 15, at 110. Engines
produce air pollutants such as carbon dioxide, carbon monoxide, and particulate matter. Id. These
emissions “contribute to [the] global air pollution problems and contain lung irritants that are
particularly dangerous to people suffering from respiratory ailments.” Id. The severity of cruise
ship air pollution is evident from a recent study that stated “Only six countries generate more
emissions of greenhouse gases than the world’s oceangoing vessels.” Felicity Barringer, EPA is
Petitioned to Limit Ship Emissions, N. Y. TIMES, Oct. 4, 2007, available at
http://www.nytimes.com/ 2007/10/04/us/04ships.html?ref=us. In addition to the increase in water
pollution produced by the cruise ship industry, the projected increase of air pollution coming
from ocean-going ships reveals that “By 2020 [it is]…projected to exceed land-based emissions
in Europe and parts of the U.S. Ships are estimated to generate almost 30 percent of the world’s
smog-forming nitrogen oxide emissions and nearly ten percent of sulfur dioxide emissions from
burning fossil fuels.” GREEN GROUPS CALL FOR CLEANER SHIP FUELS AND ENGINES DURING
INTERNATIONAL NEGOTIATIONS IN NORWAY THIS WEEK 1 (2006),
http://www.bluewaternetwork.org/press_releases/ ss/pr20061113IMOrelease.pdf.
37 Schulkin, supra note 15, at 112.
38 Hull, supra note 11, at 79.
39 Id.
40 Schulkin, supra note 15, at 110.
41 Schulkin, supra note 15, at 110.
42 Id. In addition, U.S. implemented marine sanitation device scheme has some deficiencies.
One of the main problems is that ships are only subject to U.S. Coast Guard inspection as
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2. Graywater
specified in 33 U.S.C. § 1322(b)(1) (1977). Moreover, the marine sanitation device regulations
have not been updated since 1967. CLAUDIA COPELAND, CRS REPORT RL32450: CRUISE SHIP
POLLUTION 9 (2007), http://www.bluewaternetwork.org/CRS%20Cruise Pollution.pdf.
43 Hull, supra note 11, at 79.
44 Welles, supra note 23, at 100.
45 Hull, supra note 11, at 79.
46 Id.
47 Schulkin, supra note 15, at 110. With the addition of accommodations for passengers on
cruise ships, graywater has come to include wastes from infirmaries, spas, and beauty parlors.
Hull, supra note 11, at 61.
48 Welles, supra note 23, at 99.
49 Schulkin, supra note 15, at 110.
50 Id.
51 Greywater, http://www.greywater.com/pollution.htm (last visited Mar. 8, 2007).
52 Schulkin, supra note 15, at 110.
53 KIRA SCHMIDT, CRUISING FOR TROUBLE: STEMMING THE TIDE OF CRUISE SHIP
POLLUTION 5 (2000), http://www.bluewaternetwork.org/reports/rep_ss_cruise_trouble.pdf.
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Oily Bilge water is the waste material that is held in the bilge, the
lowest part of the ship’s hull, 56 and is “produced by the bunker fuel
purification process onboard a vessel” which removes oil, sediment, water,
and engine scrapings “to allow the engine to function more efficiently.” 57 A
cruise ship produces around 37,000 gallons of oily bilge water daily. 58 The
discharge of oily bilge water threatens humans and marine wildlife. 59 If
birds ingest oil, it can lead to starvation, disease, predation, or death. 60
Contact with oil causes marine animals to suffer from skin and eye lesions
and impaired swimming abilities. 61 Even though international law regulates
the discharge of oily bilge water, violations occur “when oil separators
malfunction or are deliberately disconnected by the crew.” 62 MARPOL
currently regulates the discharge of oily bilge water, 63 but stricter
regulations are needed because if only one vessel per year discharged the
oily waste created from a single voyage, it would constitute a significant
amount of pollution. 64
4. Ballast Water
54
33 U.S.C. § 1322(a)(6) (1977).
55
ALASKA STAT. § 46.04.462(b)(1) (2001), http://www.earthisland.org/c-
saw/resources/CPVEC.pdf.
56 Schulkin, supra note 15, at 111.
57 James B. Nelson, Alternative Sentencing Under the MARPOL Protocol: Using Polluters’
Fines to Fund Environmental Restoration, 10 HASTINGS W.-N.W. J. ENV. L. & POL’Y 1, 9
(2003).
58 Welles, supra note 23, at 99.
59 Schmidt, supra note 53, at 8.
60 Id.
61 Id.
62 Schulkin, supra note 15, at 111.
63 Nelson, supra note 57, at 11.
64 Id. at 14.
65 David Ciesla, Comment, Developments in Vessel-Based Pollution: The International
Maritime Organization’s Ballast Water Convention and the European Union’s Regulation to
Phase Out Single-Hull Oil Tankers, 15 COLO. J. INT’L ENVTL. L. & POL’Y 107, 108 (2003).
66 Id.
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billion tons of ballast water are transferred by ships per year. 67 Once a
cruise ship is filled with cargo, the ballast water is released into the water
where it is docked. 68 Up to seven thousand species are transported in
ballast water. 69 Some of these species die, but those that survive can
flourish and become invasive when they are introduced into exotic
environmental conditions. 70 Invasive species affect ecosystems, indigenous
plants, and animals, and may cause “‘species extinction and wholesale
transformation of ecosystems.’” 71
The cruise ship industry is a major culprit in transporting invasive
species because ships travel frequently to countries around the world
“picking up local water for ballast,” and “unwittingly transport[ing]
invasive species between locations.” 72 As the cruise ship industry and
“trade volume, traffic, and overall transport speed [increase], species
contained in ballast water tanks now are dispersed more rapidly and
broadly than they would be naturally.” 73 If the ballast water on
international cruise ships is not stringently regulated and enforced, the
marine ecosystem will continue to be threatened and undermined. 74
5. Solid Waste
67Id. Ships in this statistic includes cruise ships as well as other commercial ships.
68Sarah McGee, Proposals for Ballast Water Regulation: Biosecurity in an Insecure World,
12 COLO. J. INT’L ENVTL. L. & POL’Y 141, 147 (2001).
69 Ciesla, supra note 65, at 109.
70 Id. Invasive species are a “destructive subset of non-indigenous or alien species “whose
introduction does or is likely to cause economic or environmental harm, or harm to human
health.” McGee, supra note 68, at 143. Since “invasive species out-compete native plants and
animals [and] in the process [diminish] local biodiversity,” they are “the second largest threat to
the continued existence of endangered species” after habitat destruction. Id.
71 McGee, supra note 68, at 147.
72 Id. at 141.
73 Ciesla, supra note 65, at 109.
74 See infra Part III.
75 Schmidt, supra note 53, at 4.
76 Schulkin, supra note 15, at 111.
77 LINDA NOWLAN AND INES KWAN, WEST COAST ENVIRONMENTAL LAW, CRUISE
CONTROL: REGULATING CRUISE SHIP POLLUTION ON THE PACIFIC COAST OF CANADA 23 (2001)
available at http://www.wcel.org/wcelpub/2001/135 36.pdf. The emissions from burning such
wastes include “dioxins, nitrogen oxide, sulfur oxide, carbon monoxide, carbon dioxide,
particulate matter, hydrogen chloride, toxic metals such as lead…and hydrocarbons.” ROSS A.
KLEIN, IS A MEMORANDUM OF UNDERSTANDING EFFECTIVE FOR PROTECTING THE
ENVIRONMENT? 22 (2003), available at http://www.bluewaternetwork.org/reports/
rep_ss_kleinrep.pdf. In effect, by trying to reduce the amount of solid waste aboard cruise ships,
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the industry is instead contributing to air pollution. Id. Both the environment and human health
are negatively impacted as evidenced from a study in California that established that “air
emissions generated between 27 and 100 miles off the coast could negatively impact the air
quality of the state.” Id.
78 Id.
79 Schulkin, supra note 15, at 111.
80 Id.
81 Schmidt, supra note 53, at 7.
82 William A. Goldberg, Note, Cruise Ships, Pollution, and International law: The United
States Takes on Royal Caribbean Cruise Lines, 19 WIS. INT’L L.J. 71, 73 (2000).
83 International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, 12
I.L.M. 1319 [hereinafter Convention]. The 1978 Protocol to the original treaty formed during
1973 consists of the 1973 treaty with the addition of amendments to it. The amendments provided
in the 1978 Protocol do not affect any of the references to the 1973 document in this paper.
Therefore, when this paper cites to “Convention, supra note 84,” one should note that it is still
referring to the same language as what is incorporated in MARPOL 73/78.
84 MARPOL 73/78, supra note 18.
85 Jeffrey S. Dehner, Note, Vessel-Source Pollution and Public Vessels: Sovereign Immunity
v. Compliance, Implications for International Environmental Law, 9 EMORY INT’L L. REV. 507,
510 (1995). This protocol primarily serves to add to the oil pollution provisions contained in
Annex I of MARPOL. Id. at 510 n.15.
86 UNCLOS, supra note 19.
87 Dehner, supra note 85, at 510.
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B. MARPOL 73/78
Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto
(MARPOL 73/78), supra note 97.
98 Id. art. 2(5), at 1321.
99 Id. Annex I, at 1335.
100 Id. Annex I, reg. 5(1), at 1341.
101 Id. art. 5(2), at 1323.
102 Id.
103 Id. According to the Convention, the inspecting party may allow a ship without a valid
certificate to “leave the port or off-shore terminal for the purpose of proceeding to the nearest
appropriate repair yard available.”
104 Id.
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discharge.” 105 The two available means of disposing of oily bilge water that
cruise ships employ are expensive, and the alternative—incineration—is
difficult and time consuming. 106 Crew members can make modifications to
cruise ships in order to circumvent these processes by making bypass hoses
to pump sludge into the ocean. 107 In order to further hide these bypass
tubes, companies have falsified records that are kept in Oil Record
Books. 108 Many cruise lines have been prosecuted in the United States for
falsifying Oil Record Books. 109 .
Annex II regulates the discharge of noxious liquid substances in
bulk. 110 Regulation 3 of this Annex categorizes noxious liquid substances
into four categories. 111 Regulation 5 allows for the discharge of any of the
noxious substances into the sea according to a few specifications, one of
which is that the discharge is “made at a distance of not less than 12
nautical miles from the nearest land.” 112 In addition, parties are required to
have reception facilities at their ports for the discharge of these
substances. 113
Although this Annex describes the discharge of noxious substances
which can greatly harm the marine environment, it allows them to be
discharged after a ship passes the twelve-nautical mile zone. Since states
are required to have reception facilities, ships should be required to hold
these harmful substances until they reach the ports to dispose of them. Just
because wastes are discharged at a distance from shore does not mean that
they cause no harmful effects. The hazardous liquids that cruise ships carry
such as those used for photo processing, dry-cleaning, and printing are not
regulated under this Annex because they do not meet the quantity
requirements. 114
Annex III regulates pollution by harmful substances carried by sea in
[degrees] 25’E). Id. Annex V, reg. 5(1)(3), at 1437. Also included in the “special areas” are the
North Sea area, the Antarctic area, and the Wider Caribbean, which includes the Gulf of Mexico
and the Caribbean Sea. Becker, supra note 88, at 630. See also Daniel Suman, Integrated Coastal
Zone Management in the Caribbean Region, 30 U. MIAMI INTER-AM. L. REV. 31, 45 (1998).
141 Convention, supra note 91, Annex V, reg. 1(3), at 1435.
142 Convention, supra note 91, Annex V, reg. 3(1)(b)(ii), at 1435.
143 Id. Annex V, reg. 5(2)(a)(ii), at 1437.
144 Id. Annex V, reg. (5)(4), at 1437.
145 Becker, supra note 88, at 630.
146 Suman, supra note 140, at 32. The Wider Caribbean includes the Gulf of Mexico and the
Caribbean Sea and is 4.31 million square kilometers wide. Two hundred million people “inhabit
the Caribbean islands and the coastal regions of the continental countries… [and] over one
hundred million tourists visit the area each year” making tourism the region’s principal source of
foreign exchange earnings. Cruise ships carry a significant proportion of these tourists to the
Wider Caribbean along with their pollution.
147 Becker, supra note 88, at 630.
148 Id.The Mediterranean Sea, Black Sea, Red Sea, and the Wider Caribbean are examples of
such areas.
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149 Id. MARPOL requires that the “Government of each party to the Convention, the coast line
of which borders a special area undertakes to ensure that as soon as possible in all ports within a
special area, adequate reception facilities are provided in accordance with Regulation 7 of this
Annex.” Convention, supra note 83, Annex V, reg. 5(4)(a), at 1437.
150 Becker, supra note 88, at 630. States of the Wider Caribbean adopted Annex V in 1991,
and it subsequently entered into force in 1993. Special Areas, supra note 142. This region, which
accounts for five percent of the world’s land and over fifty percent of its coastlines, is an example
of a party to MARPOL that cannot use its special area status. Suman, supra note 142, at 32. Many
inhabitants of this region are in “severe poverty,” and the “region’s expansion of its
tourism…produce[s] adverse environmental impacts.” Id. at 33. The Wider Caribbean is not
providing reception facilities at is ports, and therefore the safeguards of special area status do not
apply to its marine ecosystem. Id. The Caribbean ecosystems include mangroves, sea grass beds,
fourteen percent of the world’s coral reefs, and estuaries, which “are under threat from marine-
based…pollution.”Id. The Wider Caribbean’s marine environment is constantly threatened by
ships that make over “sixty-three thousand calls per year” to this region, “bringing eighty-two
thousand tons of garbage, most of which is dumped at sea.” Id. at 34.
151 Michael A. Becker, The Shifting Public Order of the Oceans: Freedom of Navigation and
the Interdiction of Ships at Sea, 46 HARV. INT’L L.J. 131, 131 (2005).
152 Id. The United States is the “only industrialized nation that has not ratified UNCLOS.”
Schulkin, supra note 15, at 119.
153 Becker, supra note 88, at 131.
154 There are three main types of vessel registries: traditional, open, and international. Jessica
K. Ferrell, Comment, Controlling Flags of Convenience: One Measure to Stop Overfishing of
Collapsing Fish Stocks, 35 ENVTL. L. 323, 335 (2005). Traditional registries have the strictest
requirements of the three types. Id. They are also called closed registries, and “are usually over
one hundred years old and require the ship owner or operator and a percentage of the crew to be
nationals of the state in which the vessel is flagged.” Id. International registries have an
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intermediate level of strictness and are used by traditional registries to compete with open
registries. Id. at 336.
155 Id. at 328-329. The article that creates the open registry states, “every state shall fix the
condition for the grant of its nationality to ships, for the registration of ships in its territory, and
for the right to fly its flag.”
156 Id. at 329. Flags of convenience are “flags of a state whose government sees registration as
a service it can sell to foreign vessel owners – not as a method to control its vessels through
imposition of its sovereignty.” Id. A ship’s flag is considered a flag of convenience “if the only
link between the flag state and the ship is registration—as opposed to management, crew
nationality, ownership, or any other ‘genuine’ connection with the state.” Id. at 336.
157 UNCLOS, supra note 19, art. 92(1), at 1287. See also Paul T. Hinkley, Raising the Spector
of Discrimination: The Case for Disregarding “Flags of Convenience” in the Application of U.S.
Anti-Discrimination Laws to Cruise Ships, 3 AM. U. MODERN AM. 75, 75 (2007) (“A flag of
convenience is defined as ‘the flag of any country allowing the registration of foreign-owned and
foreign-controlled vessels under conditions which, for whatever reasons, are convenient and
opportune for the persons who are registering the vessels.’”).
158 Id. art. 94(1), at 1287.
159 Id. art. 192, at 1308.
160 Id. art. 211, at 1310.
161 Convention, supra note 83, art. 1(1), at 1320.
162 UNCLOS, supra note 19, art. 91(1), at 1287.
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open registries of countries like Liberia and Panama.” 163 Reasons that a
ship would want to register under a flag of convenience include “economic
concerns such as tax avoidance, the availability of lower labor costs, and
[most importantly here,] less stringent enforcement of maritime
regulations.” 164 Therefore, since the cruise ship industry is rapidly
expanding and there has been an increase in the number of ships that are
flying flags of convenience, the majority of cruise ships are regulated by
lower environmental standards. 165 In 2001, ships flying flags of
convenience accounted for over fifty-three percent of the world’s gross
tonnage. 166
The opportunity for cruise ships to reflag under a flag of convenience
defeats the purpose of MARPOL, UNCLOS, and all other efforts to curb
the pollution of the world’s oceans. By avoiding costly maintenance and
ship refurbishment through this loophole, ship owners are undermining
international efforts to maintain the oceans and marine ecosystems.
Consequently, “flags of convenience become flags of permission to pollute
on the high seas” in many instances. 167 The attractiveness of registering a
ship under a flag of convenience is also attributed to the jurisdiction states
have over ships flying their flags. 168
2. Jurisdiction
163 Becker, supra note 88, at 142. Panama is the “top flag of convenience and Liberia is
second” in terms of overall tonnage. Id. The United States has a long history regarding
Panamanian flags of convenience. Ferrell, supra note 169, at 336. Shipping companies in the
United States began sailing “under the Panamanian flag since the 1920s—with shipowners
arguing that they could not compete with foreign companies that were not subject to alcohol
prohibition laws like those of the United States.” Id. In the first half of the twentieth century,
“American businesspeople increasingly used [flags of convenience]…due to operating costs
raised by union pressure and the imminence of war.” Id. When American-owned ships
encountered obstacles under U.S. laws, they would reflag their ships under Panama and continue
their business. Id. Similarly, if a cruise ship company encounters a regulation that it cannot or
does not want to fulfill, it can reflag its fleet with a state with lower standards.
164 Becker, supra note 88, at 142.
165 Hinkley, supra note 157, at 75.
166 Id.
167 Tuerkheimer, supra note 25, at 325.
168 Id.
169 UNCLOS, supra note 19, art. 92(1), at 1287. Articles 217, 218, and 220 describe the
powers and jurisdiction of the flag state, the port state, and the coastal state regarding
enforcement. Id. art. 217, 218, 220, at 1312-1313.
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180 Id. A ship is “conceptually a floating extension of the national territory, at least until it
enters another state’s zone of control. In the territorial sea or [Exclusive Economic Zone] of
another state, flag states maintain varied degrees of concurrent jurisdiction with the relevant
coastal state.”Id.
181 UNCLOS, supra note 19, art. 192, at 1308.
182 Id. art. 194(1), at 1308.
183 Id. art. 211(2), at 1310.
184 Id. art. 211(4), at 1310.
185 Id. art. 211(2), at 1310.
186 Id.
187 Id. art. 230(2), at 1315.
188 Id.
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189 Id.
190 Id. art. 220(5), at 1313.
191 Id.
192 Id.
193 Id.
194 Id.
195 Id. art. 228(1), at 1314.
196 Id.
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available a record of the case and its proceedings to the state that initially
imposed the proceedings. 197 After the conclusion of the flag state’s
proceedings, any claim that the coastal state had against the violating ship
is dismissed. 198 This provision does not give any indication of what amount
of time constitutes “due course.” Once a flag state has taken over the
proceedings of these violators, it may impose as strict or lenient of a
penalty available under its laws. Therefore, if a cruise ship is accused of
polluting off of another coastal state according to UNCLOS, the cruise
ship’s flag state may punish the ship leniently so that the ship can return to
the seas and create revenue for the flag state.
MARPOL has similar rules regarding enforcement power. Under
MARPOL, when a flag state is notified of a violation, the flag state can
prosecute the violator. 199 However, flag states are hesitant to prosecute
vessels that fly their flags because flag states must pay the legal costs of the
prosecution. 200 Statistics provide evidence that flags of convenience pose
major problems to the enforcement of MARPOL: “Out of 1000 alleged
violations that were reported to the IMO, 534 represented situations in
which the flag states had not complied with [the] notification
requirement, 201 [and] [o]f the 206 cases that reported some type of action
taken, 111 found the vessel innocent or unprosecutable due to insufficient
evidence.” 202 Seventy-seven of the 206 cases resulted in fines, eight in
warnings, and ten in unspecified actions. 203 Therefore, coastal states need
more authority to control the condition of their ports and the ships that visit
them. When ships are reported for violations, the flag states rarely punish
them. The enforcement of MARPOL and its objective of preserving the
oceans, due in part to the enforcement power that UNCLOS delegates to
flag states, continue to be undermined.
197 Id.
198 Id.
199 Convention, supra note 84, art. 6(2), at 1324. MARPOL Article 6(2) states that “A ship to
which the present Convention applies may, in any port or off-shore terminal of a Party, be subject
to inspection by officers appointed or authorized by that Party for the purpose of verifying
whether the ship has discharged any harmful substances in violation of the provisions of the
Regulations. If an inspection indicates a violation of the Convention, a report shall be forwarded
to the Administration for any appropriate action.” Article 6(4) then grants the flag state the
authority to prosecute: “If the Administration is satisfied that sufficient evidence is available to
enable proceedings to be brought in respect of the alleged violation, it shall cause such
proceedings to be taken in accordance with its law as soon as possible. The Administration shall
promptly inform the Party which has reported the alleged violation, as well as the Organization,
of the action taken.”
200 Becker, supra note 88, at 632.
201 UNCLOS, supra note 19.
202 Becker, supra note 88, at 633.
203 Id.
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by the Commandant and Administrator.” 212 It states that these fees as well
as “all penalties and payments collected for violations of this Act, shall be
deposited into the Fund.” 213 If fees similar to those proposed by the FCCSA
were implemented by the IMO and collected in a fund, there will be
enough financial support for it to implement its enforcement powers.
The IMO has recently taken measures concerning flag state actions
and the lack thereof. It created a “subcommittee on flag state compliance to
‘achieve more effective implementation of IMO instruments by creating a
forum in which individual member governments can be asked to account
for progress or lack of progress in the areas of implementation and
enforcement.’” 214 This forum allows for members to address their
grievances and spread awareness amongst members. This increased
awareness may spur non-acting flag state members to take action when
ships flying their flags make violations. The IMO needs to take more
actions like this to promote the enforcement of MARPOL and international
environmental laws in order to help preserve the oceans from pollution
from ships.
B. Amendments to UNCLOS
C. Amendments to MARPOL
which inspecting states can test samples and determine whether a ship is
violating MARPOL or not.
In order to address falsifications made in Oil Record Books, an
amendment to MARPOL can be made by modeling it after another one of
FCCSA’s provisions: a criminal false statement provision. 232 This
provision states that any person that “knowingly makes any false statement,
representation, or certification in any record, report, or other document
filed or required to be maintained by this Act. . .or that falsifies, tampers
with, or knowingly renders inaccurate any testing or monitoring device or
method required to be maintained under this Act. . .commits a Class D
felony.” 233 Since MARPOL is an international treaty, a penalty comparable
to a Class D felony can be established, or another proper punitive measure
can be designated. This false statement provision encourages cruise ship
employees and owners to honestly record their discharges and respect the
laws and limits imposed regarding cruise ship pollution.
Other amendments need to be made to MARPOL’s annexes. Annexes
II and III should include regulation of discharge of even small amounts of
hazardous waste produced onboard cruise ships. The Alaska Cruise Ship
Initiative (“ACSI”) 234 was passed in 2001 and provides for reporting
requirements for hazardous waste disposal. The ACSI states that before a
commercial passenger vessel may operate within the marine waters of a
state, the owner or operator of the ship must “provide. . .a plan that
describes the vessel’s policies and procedures for. . .[the] offloading of
hazardous waste or substance from the vessel while it is in the marine
waters of the state.” 235 236 Since hazardous substances produced on cruise
ships do not fall within quantities designated under MARPOL, 237 a
provision should require cruise ships to provide a designated plan that
indicates how the ship disposes of hazardous wastes similar to how the
ACSI requires disclosure of these disposals.
Annex IV of MARPOL, which regulates sewage pollution, should be
amended to require the treatment of graywater, ballast water, and increased
treatment of blackwater prior to discharge into the sea. 238 Cruise ships
would therefore “be precluded from discharging untreated, or improperly
treated, wastes into coastal waters of any maritime nation” “regardless of
country of registry “ 239 The FCCSA provides helpful standards for the
international regime to consider regarding these wastes. It calls for an
overall ban of the discharge of graywater and blackwater within the
territorial zone of a state. 240 If a cruise ship is outside territorial seas, then it
may discharge this waste only if it meets specific effluent limits. 241 It also
calls for “strong, mandatory standards for ballast water to reduce the threat
of aquatic invasive species.” 242 Standards such as these must be established
and added to MARPOL if its objectives are ever to be met.
While Annex V provides regulations regarding the discharge of
garbage from ships, it would better serve its purpose if it provided
exceptions for developing countries or parties that cannot afford garbage
reception facilities. By providing such an exception, areas eligible for
“special area” protection could hold ships to stricter discharge standards.
As reception facilities are essential for the proper disposal of garbage from
ships, the IMO could create a fund that would contribute money to
developing countries and designated special areas that do not have
reception facilities. Additionally, the IMO could apportion part of a cruise
ship passenger surcharge towards this fund. 243
239 Id.
240 FCCSA, supra note 210, § 4(A)(1).
241 See id. § 4(A)(2).
242 See id. § 12. See infra Part III(D).
243 See id. See infra Part III(A).
244 UNCLOS, supra note 19, art. 196, at 1308.
245 Global Ballast Water Management Programme,
http://globallast.imo.org/index.asp?page=mepc.htm&menu=true (last visited Mar. 8, 2008).
246 Id.
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enforcement.
Harmonization of UNCLOS and MARPOL can be achieved through
the employment of other means as well. If a greater burden is placed on
violators of marine pollution laws and regulations such as a clear evidence
standard (which would require that discharges made are not harmful to the
marine environment), this goal will be achieved further. 247 A “best
technology available” standard can also be implemented requiring all cruise
ships of member states of MARPOL and UNCLOS and other international
environmental laws and regulations to update their ship systems within a
certain time frame with the “best technology available” for waste
management. The FCCSA is an example of how such a provision could be
executed. It requires the “application of the best available technology that
will result in the greatest level of effluent reduction achievable, recognizing
that the national goal is the elimination of the discharge of all pollutants in
sewage and graywater by cruise vessels into the waters of the United States
by 2016.” 248 If this type of standard and a date of implementation are
established, a complementary system between MARPOL and UNCLOS
would be in place.
Environmental Compliance Plans (“ECP”) can be created which can
be tailored to each environmental regulatory regime, but with each ECP
sharing common characteristics. 249 An example would be an ECP requiring
a cruise ship owner to demonstrate a plan for “training its employees to
comply with applicable laws when handling fuel oil, waste oil, and
hazardous materials on board.” 250 Additionally, the cruise ship company’s
shoreside administration could be required to develop “management
practices to adequately supervise the handling and treatment of waste oil,
pollutants, and hazardous materials.” 251 These plans would specify each
type of waste and the storage and disposal methods the cruise ship has
onboard and off board. If ECPs were employed by every registered cruise
ship company, another assurance of coordination across the globe of the
regulation of cruise ships would be created and the enforcement of
MARPOL and UNCLOS would be greatly facilitated. While the
aforementioned recommendations address the international scheme,
individual nations can aid in the implementation of the international
regimes in place by setting up their own discharge standards, offering
lower port fees to ships with more environmentally safe equipment and
better environmental records, and by enforcing marine pollution laws. 252
253 Convention, supra note 83, art. 2(5), at 1321; UNCLOS, supra note 10, art. 92(1), at 1287.
254 United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks:
Agreement for the Implementation of the Provisions of the United Nations Convention of the
Law of the Sea of 10 December 1982, Relating to the Conservation and Management of
Straddling Fish Stocks and Highly Migratory Fish Stocks, Aug. 5, 1995, 34 I.L.M. 1542
[hereinafter UNFSA].
255 FCCSA, supra note 210, § 6(a)(2)(B).
256 Id. § 6(b)(5).
257 Nelson, supra note 57.
258 FCCSA, supra note 210, § 6(a)(2)(A).
259 Id.
260 UNFSA, supra note 254, art. 21(1), at 1563.
261 Id. art. 22, at 1565-1566.
262 Id. art. 21(2), at 1563.
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each other and thus harmonize them. A common boarding and inspection
provision for UNCLOS and MARPOL could also be accomplished by the
creation of a committee designated to represent the cruise ship industry and
allow for cruise lines to be participants or act as states. This committee
would then determine a standard similar to how states do so through their
regional or subregional fisheries management organizations under the
UNFSA.
The Western and Central Pacific Fisheries Commission (“WCPFC”), a
member of the UNFSA, established procedures according to Articles 21
and 22 that provide a solid model for the cruise ship industry. 263 The
WCPFC, through its Convention on the Conservation and Management of
Highly Migratory Fish Stocks in the Western and Central Pacific Ocean
(“WCPO Convention”), 264 created Article 26 which states that if the
Commission of the WCPO Convention is unable to agree on procedures for
boarding and inspection within two years, Articles 21 and 22 of the
UNFSA would be adopted. 265 In addition, it stipulates that “All vessels
used for boarding and inspection of fishing vessels on the high seas. . .shall
be clearly marked and identifiable as being on government service and
authorized to undertake high seas boarding and inspection.” 266 Applying
these provisions to the cruise ship industry would necessarily create
boarding and inspection procedures for cruise ships by a certain date in
time. This time restriction is essential because it often takes years for
international laws to enter into force or to even be opened for signature.
Pollution of the oceans must be stopped immediately, and a time limit
facilitates this goal. In addition, requiring vessels used to board and inspect
cruise ships is important because it negates the hostility that may be formed
when a ship approaches another and is of questionable origin and purpose.
In December 2006, the Commission of the WCPO Convention’s
adoption of boarding and inspection procedures consistent with Articles 21
and 22 of the UNFSA serves as an additional example of standards that
should be applied to the boarding and inspection of cruise ships. 267 Part of
these procedures includes requiring inspectors to carry a multi-language
questionnaire with them during inspections in order to overcome language
263 William Gibbons-Fly, Implementing the United Nations Fish Stocks Agreement with
Respect to Boarding and Inspection: Experience Within the Western and Central Pacific
Fisheries Commission, INT’L ENVTL. L. COMM. NEWSL. (Int’l Envtl. L. Comm.), Fall 2007, at 16,
17.
264 Convention on the Conservation and Management of Highly Migratory Fish Stocks in the
Western and Central Pacific Ocean, Sept. 5, 2000, 40 I.L.M. 278 [hereinafter WCPO
Convention].
265 Id. art. 26(1), at 297.
266 Id.
267 Gibbons-Fly, supra note 263, at 18.
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barriers and aid in the collection of information. 268 In addition, should there
be disagreements regarding these procedures, the WCPO Convention calls
for the creation of a special panel that would resolve such issues if the
parties to the problem wanted to utilize it. 269 This proposal is ideal and
would be highly beneficial to enforcement of laws under MARPOL and
UNCLOS if it is utilized. Boarding and inspection procedures can identify
ships violating international laws even when they are not in the act of
discharging wastes. Inspection of ships can reveal hidden bypass tools,
faulty onboard treatment systems, and false record keeping. With the
adoption of provisions similar to those in the FCCSA, UNFSA, and WCPO
Convention, shortcomings of MARPOL and UNCLOS would be
conquered.
V. CONCLUSION
(such as the roles that flag states play and their jurisdictional powers that
contradict and deter proper enforcement), simple amendments can be made
to each scheme that will enable them to work in concert. In addition to
amending existing sections of each treaty, the international community can
look to other treaties and laws both in place and those that have been
proposed for guidance regarding new regulations that must be created. The
FCCSA provides invaluable proposals that are specifically tailored to
govern the cruise ship industry, and UNCCRS and the BWMC are
examples of how international law can conquer some specific shortcomings
of MARPOL and UNCLOS. Furthermore, UNFSA and the WCPO
Convention are models of international laws that have been implemented
and, if adopted to impact cruise ship pollution, would effectuate serious
strides towards increased enforcement of international laws against its
violators.
By amending each treaty separately in ways that correspond to each
other, pollution caused by cruise ships will be effectively regulated and
therefore the limited capacity of the sea to “assimilate waste and regenerate
natural resources” 273 will be preserved. As the cruise ship industry
continues to grow and creates a mounting threat to the marine environment,
an opportunity to address this problem presents itself—new information
and research pertaining to pollutants created by cruise ships 274 . Scientific
resources and technology are constantly evolving and giving us innovative
ways to view problems and formulate solutions. Along with these
developments come new methods and techniques to properly deal with
waste storage, treatment, and disposal of pollution discharged by cruise
ships. These new developments need to be incorporated into amendments
made to the existing international legal regime as well as to any new
international agreements. While the rest of the world evolves, so must the
international environmental legal system that functions within it to provide
a path towards healthier, clearer, and cleaner waters.