Implementation of IMO Legal Instruments: International Technical and Financial Cooperation - Prevention of Pollution of the Marine Environment from Vessels - page 140

Concluding Remarks
In some areas, the provisions of the IMO legal instruments are inadequate.
Even implementation of those legal instruments may not ensure environmen-
tal protection. For example, although the IMO Hong Kong Ship Recycling
Convention will be the key instrument for the shipbreaking industry, it fails to
establish a level of control equivalent to the Basel Convention. The Basel
Convention introduced a compulsory procedure

before transboundary movement of hazardous wastes, but the IMO Hong
Kong ship Recycling Convention rendered this procedure optional. More-
over, the new convention fails to reflect globally-recognised principles like
CBDR and

prior informed consent

' '

. If IMO fails to address these critical issues, like
many other IMO conventions, the Ship Recycling Convention will be
regarded as an unsuccessful initiative.
The foremost required reform of the international marine environmental
regime involves shifting the global community ' s emphasis from treaty-
making to treaty-implementation. The key players must employ more
resources for implementing existing treaties rather than on making new
treaties. 61 However, the importance of making new laws cannot be totally
denied, given the complex scenario of international maritime affairs.
In the case of vessel-source pollution, jurisdictional issues still remain
crucial. The primary jurisdiction of enforcement and prescribing standards is
still in the hands of flag States. This system is not acceptable to the coastal
States, who are the main victims of marine pollution. Moreover, some flag
States deliberately encourage ship owners to use their registry by introducing
weak standards and enforcement mechanisms. The international marine envi-
ronmental regime may not achieve its full potential if the present practice of
flags of convenience (FOC) continues to flourish. 62
On the one hand, some countries still gain economic benefits from this
type of shipping practice. On the other hand, the environment of coastal
countries is adversely affected by the process. Pertinently, the ultimate
beneficiaries of this process are the developed countries

' polluter pays '

shipping companies.
If developed States compel their shipping companies to use their own flags,
rather than that of the FOC, it will certainly help overall compliance with
international conventions.
For practical reasons, it will not be possible to abolish the FOC system.
However, this problem can be tackled by alternative means. Some scholars
question whether ships need a flag State at all, suggesting an alternative
theory that “ships may be categorised as subjects of international law so

'

(continued)

61 Duruigbo ( 2000 ), p. 85.
62 Ibid. Also see Goldie ( 1991 ), Payne ( 1980 ), and Lowe ( 1975 ).