On one of the recent meetings of the Saint Vincent and the Grenadines (SVG) Parliament, an arguably very long bill was brought to the Honorable House. This bill was coined the Shipping (Marine Pollution Prevention) Bill 2019 or the “Pollution Bill.”
This is a unique bill, which I had the privilege of contributing to, along with the Attorney General’s Chambers, Commonwealth Consultants as well as two successive Directors of the Maritime Administration. It is unique because it incorporates several international treaties in one document. In the SVG Shipping Sector, this Bill moves the development of the Shipping industry along to being significantly more effective legislatively and is the basis on which SVG will march into line with international shipping standards.
When the Prime Minister or an authorised Minister or officer signs on to an international treaty or convention this is not the end. The treaty (an agreement between states), in most cases, requires transposing or incorporation or merging into the laws of the country.
As Professor Mukherjee of the World Maritime University commented last year in a drafting course held by the International Maritime Organization (IMO) in London:
“Treaties speak to States and States must speak to its citizens through legislation and regulations.”
In essence, when our ministers sign on to treaties, there is another process that must occur for the treaty to make sense to us and have a clear effect on us. This is the law making process.
For example, if SVG signed onto a treaty for a universal method of the creation of raisin rolls, then the draftsmen (or draftswomen) must conduct or cause public meetings in SVG to be conducted in order to find out what this treaty would look like and operate in SVG before it is presented in Parliament. It is not enough for the treaty text to be copied and pasted into one of our laws but rather, it must be carefully considered and tailored to our needs, especially if a country has made a reservation (objection to particular provisions of a treaty). These public meeting involve the input of affected individuals and companies or “stakeholders.”
No two countries are alike and treaty texts are intentionally somewhat imprecise to leave member states the flexibility during incorporation. Continuing with our example, questions like who will regulate the creation of raisin rolls in SVG? Do we need to create an agency to oversee national raisin-roll creation? Will there be raisin roll quality monitors or officers? What are their powers? What penalties will be enforced if a bakery were to deviate from the universal method? Are we going to require a license to make raisin rolls? The Government must consult its stakeholders in the process of translating the overall goal of the treaty into real life impact and its effects on the citizens of SVG.
Of course, this is just an example to make the process clearer. In actuality, SVG has incorporated several treaties into its legislation; some of these treaties it is already a party too and for others it will be creating the legal infrastructure needed before formally acceding or signing onto some of these international treaties.
The following are the treaties embedded into the legislation with a brief summary:
1) INTERVENTION ON THE HIGH SEAS IN CASES OF OIL POLLUTION CASUALTIES – This part incorporates the prevention of marine pollution under the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, acceded to by SVG in 1999. This Convention enables SVG to take such measures on the high seas as may be necessary to prevent, mitigate or eliminate danger to our coastline or related interests from pollution by oil from a maritime casualty while ensuring that such action does not affect the principle of freedom of the high seas.
2) PREVENTION OF POLLUTION BY DUMPING WASTES AT SEA – This Part relates to waste disposal at sea in a manner that is consistent with the provisions of an international agreement known as the 1996 Protocol to the Convention of the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, acceded to by Saint Vincent and the Grenadines in 2001, and its 1996 Protocol. This is one of the first global conventions aimed to protect the marine environment from human activities, and whose objective is to promote the effective control of all sources of marine pollution and to take all practicable steps to prevent pollution of the sea by dumping of wastes and other matter. SVG will become a contracting party to the 1996 Protocol
3) PREVENTION OF POLLUTION FROM SHIPS – This Part gives effect to the International Convention for Prevention of Pollution from Ships 1973 as amended by the Protocol of 1978, known as ‘MARPOL’. This is the main international convention covering the prevention of pollution of the marine environment by ships from operational or accidental cause.
MARPOL comprises the following annexes, each of which regulates a different aspect of pollution:
ANNEX I – Prevention of Pollution by Oil.
ANNEX II – Control of Pollution by Noxious Liquid Substances in Bulk.
ANNEX III – Prevention of Pollution by Harmful Substances Carried by Sea in Package Form.
ANNEX IV – Prevention of Pollution by Sewage from Ships.
ANNEX V – Prevention of Pollution by Garbage from Ships.
ANNEX VI – Prevention of Air Pollution from Ships.
4) OIL POLLUTION PREPAREDNESS, RESPONSE AND COOPERATION – This Part confers powers and duties on the Maritime Administration with respect to oil pollution incidents covered by the International Convention on Oil Pollution Preparedness, Response and Co-operation 1990, which aims to prepare ships and national authorities to respond promptly and effectively to oil pollution incidents. SVG will become a contracting party to this Convention.
5) CIVIL LIABILITY FOR BUNKER OIL POLLUTION DAMAGE – This Part deals with the legislative regime governing liability and compensation for oil pollution damage that applies under an international agreement known as the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001, which was acceded to by Saint Vincent and the Grenadines in 2009. Bunker oil is the oil used for the operation of ships, and it is distinct from cargoes of crude oil, petroleum etc. The Convention aims to ensure that adequate, prompt, and effective compensation is available to persons who suffer damage caused by spills of oil, when carried as fuel in ships’ bunkers.
6) LIABILITY AND COMPENSATION FOR DAMAGE IN CONNECTION WITH THE CARRIAGE OF HAZARDOUS AND NOXIOUS SUBSTANCES – This Part gives effect to the provisions of an international agreement known as the Convention for the Control and Management of Ships’ Ballast Water and Sediments 2004, which aims to prevent the spread of harmful aquatic organisms from one region to another, by establishing standards and procedures for the management and control of ships’ ballast water and any sediments contained therein. SVG will become a contracting party to this Convention.
7) CONTROL AND MANAGEMENT OF SHIPS’ BALLAST WATER AND SEDIMENTS – This Part gives effect to the provisions of an international agreement known as the Convention for the Control and Management of Ships’ Ballast Water and Sediments 2004, which aims to prevent the spread of harmful aquatic organisms (like the lionfish in the Caribbean or like the largemouth bass in California) from one region to another, by establishing standards and procedures for the management and control of ships’ ballast water and any sediments contained therein. SVG will become a contracting party to this Convention.
8) CONTROL OF ANTI-FOULING SYSTEMS ON SHIPS – This Part gives effect to the provisions of the Convention on the Control of Harmful Anti-Fouling Systems on Ships 2001, which restricts the use of harmful chemicals in ships’ anti-fouling systems, such as the paint used to coat the bottoms of ships to prevent sea-life attaching to the hull and slowing the vessel down. SVG will become a contracting party to this Convention.
9) REMOVAL OF WRECKS – This Part gives effect to the provisions of the Nairobi International Convention on the Removal of Wrecks 2007, which covers the prompt and effective removal of shipwrecks located beyond the territorial sea with the potential to affect adversely the safety of lives, goods and property at sea, as well as the marine environment. Although the incidence of marine casualties has decreased in recent years, the number of abandoned wrecks reported has increased.
A wreck may constitute a hazard to navigation, may cause damage to the marine and coastal environments; and can be costly to mark and remove. The convention attempts to resolve these issues, making ship-owners financially liable for the costs of wreck removal, and providing States with a right of direct action against insurers. The Shipping Act as the Prime Minister mentions already deals extensively with wrecks in the territorial seas. SVG will become a contracting party to this Convention.
10) 1994 AGREEMENT RELATING TO THE IMPLEMENTATION OF PART XI OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA OF 10 DECEMBER 1982 – This Part gives effect to the provisions of the 1994 Agreement relating to the implementation of Part XI of the United Nations Conventions on the Law of the Sea (UNCLOS) of 10 December 1982. The provisions of the ‘1994 Agreement’ and ‘Part XI of the UNCLOS’ are to be interpreted and applied as a single instrument and in the event of an inconsistency, the 1994 Agreement will prevail. SVG will become a contracting party to this Convention.
SVG has one of the biggest registries in the world (although most of the registered vessels do not come to the mainland) and each convention area is highly specialized so it will impact the fleet of vessels that fly the flag of SVG and who will now be attracted to coming to our flag. SVG has taken a profoundly big step into improving its standard of shipping. Despite the obvious obstacles with enforcement, which can be stated as a concern of every bill before the Honorable House, this sends a clear message to the international shipping sector that SVG is committed to doing its part to stop the pollution from ships as well as to advance the status of its Flag from convenience to confidence.
The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of any agency of the government.Chevanev A.Y Charles is a Vincentian lawyer Called to the Bar in the United Kingdom, Grenada, Saint Vincent and the Grenadines. He holds a Masters’ degree (LL.M) in International Maritime Law from the International Maritime Law Institute (IMLI Malta). He is a mediator, consultant, practicing lawyer and legislative drafter. For questions, comments or services kindly contact him [email protected]