Dr Moses Amweelo
Marine pollution can cause serious environmental damage, as well as damage to ocean use and amenities.
However, it is also a very emotional problem which does not always respond well to legal solutions.
There is no denying that shipping was responsible for much of the problem due to a combination of deliberate operational pollution; regular, serious marine accidents; and a general lack of “environmental consciousness”.
Having realised potential risks for marine pollution in Namibia, the National Assembly has approved International Maritime Organisation (IMO) pacts such as the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78), in order to be better prepared for any eventualities regarding marine pollution in our territorial waters.
Marine pollution, largely by oil, is one of the most persistent problems facing international shipping, including in Namibia’s shipping sector.
This is despite the fact that ship-source marine pollution today accounts for no more than five percent of all marine pollution.
The reason for the concentration on this aspect of pollution is due to the complex problems associated with the other 95 percent of sources (ie, land-source pollution of the marine environment).
Marine pollution is now the major responsibility of the IMO under its “safe ships and clean seas” principle.
This has led to two inter-linking approaches to dealing with the problem.
Prevention: The International Maritime Organisation has accepted responsibility for promoting greater marine safety and better operating procedures plus contingency planning and clean-up technology.
Damage Compensation: There has been a great deal of work on the development of an adequate compensation regime once pollution has occurred. In order to obtain adequate compensation for the damage caused by marine pollution, someone must be found liable.
The problems that arise in this regard are common to other legal questions. First it has to be shown that damage occurred and the damage must be quantified.
Here it is a question of where to draw the line about indirect damage such as to the tourist industry, when beaches are closed, when ports are shut down and cannot generate revenue, losses to subsistence fishing industry, etc.
Secondly liability of the party that caused the pollution must be proven. Here states have implemented different standards of liability such as strict liability, accident, natural causes or negligent or deliberate act.
Five international compensation schemes have been developed since the Torrey Canyon Disaster in 1969. These are CLC (1969), TOVALOP (1969), FUND (1971), CRISTAL (1971) and (PLATO).
CLC and FUND were developed by the IMO, TOVALOP by the international tanker industry, and CRISTAL by the international oil industry. PLATO is a product of the oil industry’s influence on the tanker market.
In addition to this, almost every state in the world has effected legislation addressing the problem within their territorial waters.
Coastal states have exercised rights ranging from intervention into an imminent pollution incident to exercising port states jurisdiction over vessels within their territory.
Enforcement of many legal provisions will take place at this level together with the principal enforcement powers of the traditional flag state.
The United Nations Convention on the Law of the Seas, which makes marine pollution illegal in general, provides the broad international legal umbrella beneath which other legal measures become effective.
Other important conventions are the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, which is otherwise known as the London Convention, and the 1971 Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material.
The major concentration in these conventions is on oil pollution, although MARPOL covers all substances.
For coastal states such as Namibia, and indeed for the Southern Africa region, these conventions require not only domestication but also enforcement for the enhancement of sustainable use of marine resources.
Dr Moses Amweelo is an expert in marine safety. He has served as Minister of Works, Transport and Communication in the Republic of Namibia