Implementation of IMO Legal Instruments: International Technical and Financial Cooperation - Prevention of Pollution of the Marine Environment from Vessels - page 125

things, that lack of worldwide enforcement, monitoring and port State control
severely limit the effectiveness of the convention. Moreover there are huge diffi-
culties to identify the sources of oil spillage. 15
Over-reliance on flag State enforcement can be identified as one of the major
causes of the worldwide enforcement deficiency of IMO marine environmental
legal instruments. 16 As discussed earlier huge numbers of ships are registered in
so-called . Some of these open registry countries are very reluctant

to prescribe or enforce stringent regulations on ships entitled to fly their flag. The
relationship between this registry and their ships is one of service-provider and
client. Some of these countries give registration to ships owned by foreign citizens
to earn some money. 17 Unsurprisingly, the marine environment is not an issue in
their national agenda; some are even land-locked countries having no connection or
reliance on the sea.
On the other hand, least developed countries (LDCs), which do not give regis-
tration to ships owned by foreign national without a

' open registries '

, have their own
problems to implement the IMO conventions as a flag State. These developing
countries lack the resources to enforce the IMO legal instruments on the ships flying
their flags. Additionally, the global community is hardly concerned about this issue,
as ships of non-open registry developing countries rarely, or never, call to ports of
western developed countries. Most of these ships operate regionally. Tables 7.1 and
7.2 show that most of the countries blacklisted by the Tokyo and Paris Memoranda
of Understanding (MoU) are developing countries.
Developing countries, both as coastal and port States, are also finding it prob-
lematic complying with the IMO legal instruments. Non-availability of modern
equipment and funds, as well as a distinct lack of political will, are the main factors
behind this non-compliance. Most of the developing countries do not provide
reception facilities in their ports. The language of the MARPOL provision relating
to reception facilities is not considered legally-binding, according to many of the
developing countries. 18 The Convention requires parties to “undertake to ensure the
provision

genuine link

' '

of reception facilities”. 19 Even in one of its publications, IMO itself
made the following statement: “[t]his does not mean that the Government of a Party
must provide the facility; it means, in practice, that the Government can require a
port authority or terminal operator to provide the facilities”. 20
All these inherent drawbacks make the MARPOL system and other IMO marine
environmental

'

instruments largely ineffective, particularly in the developing

15

Peet ( 1992 ). On Effectiveness and implementation of MARPOL 73/78 see generally: Curtis
( 1985 ), Becker ( 1997 ), Griffin ( 1994 ), and Dempsey ( 1984 ).
16

Griffin ( 1994 ), p. 506 and Mattson ( 2006 ), p. 190.
17 Becker ( 1997 ), pp. 631 and 632; Griffin ( 1994 ), pp. 506 and 507; and Curtis ( 1985 ), p. 708.
18 Tan ( 2006 ), p. 265.
19 MARPOL 73/78, Annex I reg. 38; Annex II reg. 18, Annex IV reg. 12, Annex V, reg. 7 and
Annex VI reg. 17.
20 IMO ( 2003 ), p. 74.