Ritucci Chinni

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THE SOLUTION TO INTERNATIONAL CRUISE SHIP POLLUTION: HOW HARMONIZING THE INTERNATIONAL LEGAL REGIME CAN HELP

SAVE THE SEAS

ALEXANDRA RITUCCI-CHINNI*

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 .........................................................................................28II. THE INTERNATIONAL CRUISE SHIP INDUSTRY AND ITS EFFECTS ...........31

A. Magnitude of the Industry .........................................................31B. Effects of Cruise Ships on the Marine Environment .................32

1. Blackwater ...........................................................................322. Graywater ..............................................................................333. Oily Bilge Water..................................................................344. Ballast Water .......................................................................345. Solid Waste..........................................................................35

III.INTERNATIONAL REGULATIONS GOVERNING THE CRUISE SHIP

INDUSTRY AND THEIR SHORTCOMINGS............................................36A. International Maritime Organization .........................................36B. MARPOL 73/78 ........................................................................37C. 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.

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28 THE DARTMOUTH LAW JOURNAL Vol. VII:1

2. Jurisdiction...........................................................................453. Enforcement of Pollution Violations ...................................47

IV.THE INTERNATIONAL SOLUTION ............................................................50A. The Role of the IMO .................................................................50B. Amendments to UNCLOS.........................................................51C. Amendments to MARPOL ........................................................52D. Other Proposals to Promote Harmonization ..............................55

V. CONCLUSION ...........................................................................................59

I. INTRODUCTION

Think back to a time before modern technology and transportation were integral parts of everyday life. Before travel by air and automobiles were popular, ships transported people, information, and goods across the globe. Although ships had been used for global voyages for hundreds of years, transatlantic passenger services did not become a thriving industry until the end of the nineteenth century, when immigration from Europe to the United States increased.1 Luxurious ships like White Star Line’s Titanicand Cunard Line’s Mauretania provided lavish accommodations for passengers and catered to travelers’ needs as ships had never before.2

World War I and II cut short the era of success for these ocean liners when countries used them to transport troops.3 The industry was further crippled shortly after the end of World War II when jet airplanes gave birth to the air transport industry.4 By 1958, the majority of people traveled by air rather than by sea,5 and today only a few ocean liners still cross the Atlantic Ocean.6 However, an industry providing transport by sea did not vanish.

In the wake of magnificent ocean liners, decadent cruise ships

1 Timothy J. Runyan, Ship, http://encarta.msn.com/encyclopedia_761571524_7/Ship. html#p85 (last visited Mar. 4, 2008).

2 Id. The Mauretania’s maiden voyage was in 1906 and Cunard Line became the first to build ocean liners with steam turbines, which increased the rate of travel and attracted more travelers. Id. The Titanic, sailing under British registry as a part of White Star Line, a United States’ owned company, set sail on its maiden voyage in 1912, but sank a few days later after hitting an iceberg. Titanic Disaster, http://encarta.msn.com/encyclopedia_761564059/ Titanic_Disaster.html (last visited Mar. 4, 2008).

3 Runyan, supra note 1. 4 Id.5 In 1958, “the Boeing 707 began the first U.S. jet transport service between the United

States and Europe” thereby undercutting industry of transatlantic travel on the seas. Important Dates in Aviation History, http://www.b26.com/page/aviation_dates.htm (last visited Mar. 4, 2008).

6 Runyan, supra note 1. Queen Elizabeth 2 and Queen Mary 2, both ships from Cunard Line, are the only ocean liners that presently cross the Atlantic Ocean.


Winter 2009 INTERNATIONAL CRUISE SHIP POLLUTION 29

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 Organization17 and international

7 Runyan, supra note 1. 8 Id.9 Id.

10 Id.11 Eric V. Hull, Comment, Soiling the Sea: The Solution to Pollution is Still Dilution, 3

BARRY L. REV. 61, 65 (2002). 12 Tasha J. Power, Comment, Vessel-Based Pollution: Major Developments in 2004,16: 2004

COLO J. INT’L ENVTL. L. & POL’Y 153, 154 (2004). 13 Id.14 Id.15 Andrew Schulkin, Safe Harbors: Crafting an International Solution to Cruise Ship

Pollution, 15 GEO. INT’L ENVTL. L. REV. 105, 113 (2002). 16 Reviving Our Oceans, http://www.nrdc.org/water/oceans/policy.asp (last visited Mar. 6,

2008).17 International Maritime Organization, http://www.imo.org/ (last visited April 14, 2008).



legal regimes such as MARPOL 73/7818 and the United Nations Convention on the Law of the Sea19 sought to address and regulate cruise ship pollution. However, these international regimes must be harmonized so that they can promote what each is ultimately trying to achieve: protection of the world’s water to ensure its viability for the present and future.

Part II of this paper addresses background information concerning thesize and scope of the international cruise ship industry. Since the initial success of the cruise ship industry in the 1960s,20 the industry has expanded exponentially in occupancy limits, fleet size, and in the number of destination locations.21 Water pollution caused by the international cruise ship industry has had devastating effects on the environment.22

Marine life is threatened and human health is also at risk when ships haphazardly release pollutants into the oceans.23

Part III explores the international regulation of the cruise ship industry. MARPOL 73/78 and UNCLOS are the two foremost international agreements that are currently in force.24 The functions of the IMO and its role in the cruise ship industry are also discussed. This part additionally identifies the shortcomings of the current international regime for cruise ship regulation. Problems that arise within the MARPOL 73/78 regime are caused in part by the provisions in UNCLOS regarding the registry of ships, jurisdiction, and enforcement powers. Due to these shortcomings, the cruise ship industry continues to pollute with limited avenues for the pollution. Moreover, offenders have little incentive to reform themselves.25

Part IV offers a solution to the problems that the international community currently has with existing regulations. It considers changing the IMO’s role, amending MARPOL and UNCLOS, and implementing proposals that harmonize the international legal regime in order to protect and preserve the world’s waters. These regulations, with the compliance of the cruise ship industry, will result in the recovery and preservation of

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).



natural marine environments.

II. THE INTERNATIONAL CRUISE SHIP INDUSTRY AND ITS EFFECTS

A. Magnitude of the Industry

Compared to the number of cruise ships that existed in the 1960s when the industry first started, the number currently sailing the seas is astounding.26 Between two-hundred and three-hundred ships are currently registered worldwide,27 and this number is increasing by an annual growth rate of around ten percent.28 Each year it is estimated that “roughly ten million people across the globe travel the world in a cruise ship.”29 Of those ten million, 8.4 million were carried by cruise ships from North America alone.30 It is estimated that at the end of the year 2010, there will be over twelve million passengers that will demand cruises in North America and Europe.31 The consequences of this continued growth are an increase in the number of registered cruise ships and possibly an increase in the number of voyages each ship makes annually.32

Such an increased popularity of cruise ships would result in an expansion of the number of places cruise ships travel. For 2008, Cruise Critic predicts increased interest in European and Asian cruises. 33 34

Carolyn Spencer Brown, the Editor-in-Chief of Cruise Critic, said that “the popularity of Europe-based cruising and the need to alleviate gridlock at the busiest ports means cruise lines are offering more exotic itineraries, including ports of call along Croatia’s coast or around the Black Sea.”35 In other words, as the cruise ship industry expands, people will seek to visit more places in the world.

26 Hull, supra note 11, at 65. 27 Power, supra note 12, at 154. 28 Hull, supra note 11, at 65. 29 Power, supra note 12, at 154. 30 Id.31 Schulkin, supra note 15, at 109. 32 Id.33 Cruise Critic, http://www.cruisecritic.com/aboutus/ (last visited Mar. 3, 2008). Cruise

Critic is an online resource that details information about cruises, how to choose a cruise, news, ports, and reviews.

34 Europe and Asian Cruises Tipped for Growth in 2008, http://jetlinecruise.blogspot.com/ 2008/01/europe-and-asia-cruises-tipped-for.html (last visited Mar. 3, 2008).

35 Id.



B. Effects of Cruise Ships on the Marine Environment

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

Blackwater, also referred to as sewage, is waste composed of medical and human waste on ships.38 Each week, around 350,000 gallons of blackwater are created and stored on a cruise ship.39 If a ship operates within United States’ waters, it must be “equipped with marine sanitation devices as required by federal law.”40 Marine sanitation devices are supposed to treat blackwater so it can safely be discharged into the marine environment.41 However, it has been found that marine sanitation devices do not consistently function as intended, and when they are down for maintenance, some ships discharge untreated sewage into the water.42

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



Blackwater is harmful to humans and the marine environment if discharged untreated or poorly treated because it contains harmful pathogens and viruses.43 If blackwater is dispelled into the water without being treated properly, high levels of fecal coliform—bacteria from human waste—create an increased risk to humans and the environment.44 Coral reefs become scarred or diseased, and filter feeding organisms, like oysters, baleen whales, and clams, may “filter these materials from the water column and bioaccumulate large quantities in fat tissue.”45 Additionally, one faces a risk of serious illness or even death by consuming an organism that has filtered these pathogens and bacteria.46

2. Graywater

Graywater is waste from “sinks, showers, galleys, and laundry.”47

About 255,000 gallons of graywater are produced per day on a cruise ship carrying around three thousand passengers thereby making it the most abundant cruise ship waste.48

Pollutants contained in graywater include “detergents, cleaners, oil and grease, metals, pesticides, medical and dental wastes, and significant concentrations of hazardous pollutants.” 49 Graywater must be discharged after a maximum of forty-eight hours.50 If the graywater is stored in tanks during this holding period, it uses up oxygen and becomes anaerobic, thereby containing anaerobic bacteria that can include human pathogens.51

Some samples of graywater have demonstrated levels of bacteria higher than those found in treated sewage and thus pose another possible harm to human health.52 In addition, “‘graywater has the potential to cause adverse environmental effects because measured concentrations and estimated loadings of nutrients and oxygen-demanding substances are significant.’”53

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.



Currently, the discharge of graywater is not regulated anywhere except in the Great Lakes54 and Alaska.55

3. Oily Bilge Water

Oily Bilge water is the waste material that is held in the bilge, thelowest 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

Ballast water is considered “any material that is used to balance and stabilize a vessel.”65 In cruise ships, water is stored in tanks to enable a ship to “adjust its load more efficiently and economically by loading or discharging water as its weight fluctuates.”66 It is estimated that around ten

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.



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

Solid waste consists of garbage, plastic, paper, wood, cardboard, foodwaste, cans, and glass.75 In one week, a cruise ship produces approximately fifty tons of garbage.76 Usually, solid waste is incinerated onboard and the resulting ash is discharged at sea.77 The remaining waste is brought to

67 Id. Ships in this statistic includes cruise ships as well as other commercial ships. 68 Sarah 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,



shore and disposed of or recycled.78 However, some solid waste ends up in the ocean either intentionally by the cruise ship personnel, or unintentionally by passengers who sometimes flush personal items such as razors or toothbrushes down the toilet.79 These items, usually made of plastic, are released into the sea.80 Plastics are especially hazardous to marine life.81 The threat that discharge of solid wastes and plastics pose to the environment calls for more stringent international regulations.

III. INTERNATIONAL REGULATIONS GOVERNING THE CRUISE SHIP

INDUSTRY AND THEIR SHORTCOMINGS

The international laws that pertain to marine pollution are found exclusively in treaties.82 MARPOL,83 including its 1978 Protocol,84 is the principal international treaty that regulates pollution from ships.85

UNCLOS,86 is the second international treaty that helps regulate vessel-source pollution.87 This section first addresses the International Maritime Organization’s role and powers regarding the cruise ship industry. It then considers how MARPOL and UNCLOS both have flaws that inhibit the most effective oversight of cruise ship pollution. These shortcomings will be discussed in conjunction with those of the IMO.

A. International Maritime Organization

The International Maritime Organization (“IMO”), originally called

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.



the Inter-Governmental Maritime Consultative Organization, was created on March 6, 1948 by the United Nations Maritime Conference in Geneva.88 The IMO originally focused on creating regulations concerning shipping safety, but in the 1970s it “expanded its focus to include the ‘prevention and control of marine pollution arising from the exploration and exploitation of the sea-bed [sic] and the ocean floor.’”89 The powers of the IMO are limited to recommending regulations; it does not have the power to impose them.90 In order to fulfill its purposes, the IMO makes recommendations to “provide for the drafting of conventions.”91 The convention must then be ratified by a certain number of countries.92 Once the ratification requirement is met, “the responsibilities of monitoring and enforcing the convention shift from the IMO to the ratifying governments, especially the flag states.”93 The country is also “responsible for enforcing the convention regulations.”94 The IMO recognizes that society today is “supported by a global economy, which could not function if it were not for [the use of ships]; its stated mission is “ensuring that lives at sea are not put at risk and that the marine environment is not polluted by shipping.”95

Given this, some of the problems that exist with the current system of regulation have to do with how the IMO functions.

B. MARPOL 73/78

MARPOL 73/78 entered into force on October 2, 1983 and consists of the 1973 adoption of the International Prevention of Pollution from Ships along with the 1978 MARPOL Protocol.96 MARPOL 73/78 consists of 20 articles and six annexes, five of which concern sources of water pollution.97

88 Rebecca Becker, Note, MARPOL 73/78: An Overview in International Environmental Enforcement, 10 GEO. INT’L ENVTL. L. REV. 625, 626 (1998).

89 Id. at 627. 90 Id. See Convention of the Intergovernmental Maritime Consultative Organization, pt. III,

art. 2, Mar. 6, 1948, 9 U.S.T. 621. 91 Id. at pt. II, art. 3. 92 Becker, supra note 88, at 627. 93 Id. at 628. Flag state refers to the state in which a vessel is registered. 94 Id. at 628. 95 International Maritime Organization, supra note 17.96 Annex I and II entered into force on this date. International Convention for the Prevention

of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78), http://www.imo.org/ (last visited Mar. 3, 2008). Annex V entered into force on December 31, 1988; Annex III on July 1, 1992; Annex IV on September 27, 2003; and Annex VI on May 19, 2005. Id.

97 Id. As of February 29, 2008, the number of parties that ratified is as follows: Annex I/II, 146; Annex III, 128, Annex IV, 118; Annex V, 134; and Annex VI, 48. Status of Conventions, http://www.imo.org/Conventions/main frame.asp?topic_id=247 (last visited Mar. 6, 2008). Annex VI sets limits on “sulfur dioxide and nitrogen oxide emissions from ship exhausts and prohibits deliberate emissions of ozone depleting substances.” International Convention for the



According to MARPOL’s definitions, “Administration” refers to the “Government of the State under whose authority the ship is operating. With respect to a ship entitled to fly a flag of any state, the Administration is the Government of that State.”98 Therefore, the flag state has primary authority over flagged ships pertaining to all matters involving cruise ship operations.

Annex I regulates the discharge of oil into water resulting from the operation of ships.99 States are to issue oil pollution certificates to ships after they have been surveyed in accordance with the provisions of this Annex.100 Article 5 requires that all parties to this convention must accept a ship with a valid certificate, should it enter ports under their authority.101 A convention party may inspect a certified ship, but it is “limited to verifying that there is on board a valid certificate, unless there are clear grounds for believing that the condition of the ship or its equipment do not correspond substantially with the particulars of that certificate.”102 If an inspection reveals that there is not a valid certificate, then the party performing the inspection must “take such steps as will ensure that the ship shall not sail” until it does not present “an unreasonable threat of harm to the marine environment.”103

This Annex does not, however, specify the steps that the inspecting party can take to stop a ship without valid certification from sailing. While Article 5 applies to all of the annexes in MARPOL, Annex I’s requirement of an oil certificate, and the inherent dangers of the discharge of oil into the marine environment call for this Annex to describe the proper actions that an inspecting party may take to prevent a violating ship from sailing. Cruise ships are regulated, in part, by section (b) of Regulation 20, which requires them to keep records of discharges of oily bilge water.104 Although Regulation 20 allows any Convention party to inspect a ship’s Oil Record book while it is in port or offshore terminals, it has not been wholly successful in curtailing or intercepting violating cruise ships.

It is nearly “impossible for waste oil to be discharged overboard when a vessel’s sludge and bilge systems operate as designed”; however, there are “economic motivations to modify engine room systems to allow a

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.



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

105 Nelson, supra note 57, at 11. 106 Id.107 Id.108 Id.109 Ross A. Klein, The Industry’s Dark Side, http://www.consciouschoice.com/2003/

cruiseblues1602. html (last visited Mar. 7, 2008). In 1998, Royal Caribbean International was fined nine million dollars for falsifying bilge discharge records in Florida and Puerto Rico; in 2002, Carnival Corporation admitted that employees made false entries in record books from 1998 to 2001.

110 Convention, supra note 83, Annex II, at 1386. 111 Id. Annex II, reg. 3(1)(a)-(d), at 1388. These categories classify noxious liquid substances

as presenting a major hazard, hazard, minor hazard, or recognizable hazard to marine or human health, or to legitimate uses of the sea.

112 Id. Annex II, reg. 5(1)(c), at 1390. UNCLOS defines these twelve nautical miles from shore as the territorial zone over which a state has jurisdiction. UNCLOS, supra note 19, Part II, § 2, art. 3, at 1272.

113 Convention, supra note 83, Annex II, reg. 7, at 1396. 114 Schulkin, supra note 15, at 122.



packaged forms, or in freight containers, portable tanks or road and rail tank wagons.115 This Annex is the first of the convention’s “optional” Annexes.116 It provides regulations regarding the packaging, labeling, documentation, and stowage of harmful substances.117 “Jettisoning of harmful substances” overboard is prohibited as well unless it is for the “purpose of securing the safety of the ship or saving life at sea.”118 This Annex, like Annex II, does not provide standards for the treatment and discharge of hazardous waste at sea.119 While proper methods of getting rid of these substances includes storing them during the voyage and then properly unloading them from the ship and disposing them on land, many cruise ship companies do not follow such procedures.120. Marine animals and organisms are harmed when these toxic chemicals and heavy metals accumulate in their tissues.121

Annex IV applies to the prevention of pollution by sewage from ships.122 Similar to Annex I’s requirement of ship certification by initial survey, Annex IV requires the same to ensure that a ship has proper sewage treatment equipment or a holding tank onboard, that the ship can disinfect sewage, and that the ship has a proper pipeline that enables a ship to discharge sewage at reception sites.123 Regulation 8 of this Annex addresses the discharge of sewage into the sea.124 If sewage is disinfected onboard, a ship is able to discharge such sewage after it is more than four nautical miles from land.125 If sewage is not disinfected, then it can be released into the ocean at a distance of twelve miles from land.126 If a ship has a certified sewage treatment plant onboard, then it may discharge sewage as long as “the effluent [does not] produce visible floating solids in, nor cause discoloration of, the surrounding water.”127 If a state imposes “less severe requirements as may be imposed by” a state, then a ship can

115 Convention, supra note 83, Annex III, at 1421. 116 Id. art. 14(1), at 1328. The optional Annexes of MARPOL are Annexes III, IV, and V. Id.

Therefore, a party that signs MARPOL is automatically bound to Annexes I and II. A state that has chosen not to be bound by an optional Annex may “at any time accept such Annex” by following the procedure outlined in Article 13(2). Id. art. 14(2), at 1328.

117 Id. Annex III, reg. 2-5, at 1422-1423. 118 Id. Annex III, reg. 7(1), at 1423. 119 Schulkin, supra note 15, at 122. 120 Id. An example of improper handling is Royal Caribbean’s treatment of hazardous waste

that included mixing it with graywater or dumping it overboard. 121 Id.122 Convention, supra note 83, Annex IV, at 1424. 123 Id. Annex IV, reg. 3, at 1426. 124 Id. Annex IV, reg. 8, at 1429-1430. 125 Id.126 Id. In addition, the sewage must be discharged at a rate approved by the Administration and

when the ship is moving at a speed not less than four knots. Id. Annex IV, reg. 8(1)(a), at 1430. 127 Id. Annex IV, reg. 8(1)(b), at 1430.



discharge sewage according to those requirements.128 Annex IV, like Annex II, requires a party to have facilities at its ports and terminals for the disposal of sewage.129

This Annex is directed to deal with blackwater discharge, which the cruise ship industry generates in massive amounts.130 However, once a ship is twelve miles from land, it may dispose of these wastes without consequence. Blackwater’s harms do not cease to exist once it is outside of the twelve-nautical mile zone. Therefore, the marine environment is always at risk of harm from ships that dispose of this waste. Furthermore, Annex IV fails to address the discharge of ballast water or graywater. These two substances therefore may be discharged anywhere. Currently, the United States is not among the 118 signatories to Annex IV.131 Since over half of cruise travelers travel to the United States,132 this Annex is not effective at regulating the cruise ship industry.

Annex V provides regulations for the prevention of pollution by garbage from ships.133 The disposal of garbage consisting of dunnage,134

lining, and packing materials that float is permitted beyond twenty-five nautical miles from land.135 All plastics are prohibited from being discharged anywhere in the sea.136 Garbage consisting of “food wastes and all other garbage”137 may be disposed after a ship travels twelve nautical miles from land, and may be disposed anywhere three miles from land that is “practicable” if it is “passed through a comminuter138 or grinder.”139

“Special areas” are designated in this Annex as the Mediterranean Sea, the Baltic Sea, the Black Sea, the Red Sea, and the “Gulfs area,”140 which

128 Id. Annex IV, reg. 8(1)(c), at 1430. 129 Id. Annex IV, reg. 10(1), at 1430-1431. 130 Hull, supra note 11, at 79. 131 Status of Conventions, http://www.imo.org/Conventions/mainframe.asp?topic_id=247 (last

visited Mar. 6, 2008). 132 Power, supra note 12. 133 Convention, supra note 84, Annex V, reg. 1, at 1434. According to this Annex, garbage

includes “all plastics…synthetic ropes, synthetic fishing nets and plastic garbage bags.” Id.Annex V, reg. 3(a), at 1435.

134 Dunnage is the name for “the materials used in holds and containers to protect goods and their packaging from moisture, contamination and mechanical damage. Dunnage may include plastic films…wood, rice matting, nonwovens, liner bags or also inlets.” Dunnage is used on cruise ships and there have been reports of cruise ship dumping of dunnage. Dunnage, http://www.tis-gdv.de/tis_e/misc/garnier.htm (last visited Mar. 5, 2007).

135 Convention, supra note 84, Annex V, reg. 3(1)(b)(i), at 1435. 136 Id. Annex V, reg. 3(1)(a), at 1435. 137 Id. Annex V, reg. 1(1), at 1434. This category includes paper products, rags, glass, metal,

bottles, crockery and similar refuse. 138 A comminuter is “a machine that grinds garbage into minuscule pieces.” Becker, supra

note 88, at 629 n.45. 139 Convention, supra note 83, Annex V, reg. 3(1)(c), at 1436. 140 The “Gulfs area” includes the sea area “located North West of the rhumb line between Ras

al Hadd (22 [degrees] 30’N, 59 [degrees] 48’E) and Ras al Fasteh (25 [degrees] 04’N, 61



identifies them because of “recognized technical reasons in relation to [their] oceanographical and ecological condition[s] and to the particular character of [their] traffic,” thereby requiring “the adoption of special mandatory methods for the prevention of sea pollution by garbage.”141

When a party state has “special area” status, stricter standards apply to discharges from ships. Annex V outlines regulations for the disposal of garbage outside as well as within special areas. When a ship is outside a special area, for example, it may dispose food wastes, paper products, glass, metal, and other garbage when it is more than twelve nautical miles from shore.142 However, when a ship is within a special area, paper products, rags, glass, metal, bottles, and all other garbage are prohibited from being discharged at all.143 Therefore, when ships are in special areas, the garbage that they normally discharge when they are outside of special areas must be stored onboard and disposed of at port facilities for garbage disposal that parties to the convention are required to provide.144 The more stringent standards for special areas denote the urgent need for cruise ships to curb their discharging habits.

A problem with this Annex is that some countries do not ratify it because they find it too expensive to provide port facilities for theseships.145 This results in fewer countries - especially those in the Wider Caribbean - 146 ratifying Annex V even though the area is designated as a special region in need of extra protection.147 As a result parties located in special areas that have adopted Annex V are unable to label themselves as such.148 Ratifying states located in these areas are all members to Annex V and qualify to be special areas. However, their special area status has not taken effect “because of lack of notifications from MARPOL Parties whose coastlines border the relevant special areas” that adequate reception

[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.



facilities have been established.149 Therefore, these members of the convention do not yet provide reception facilities and consequently are unable to declare special area status. Countries may not provide such receptacles due to a “lack of an overall garbage disposal system, technological deficiencies and lack of monetary resources.”150

C. UNCLOS and its Relation to MARPOL 73/78

In 1982, after years of negotiations concerning how to construct regulations to “‘prevent the breakdown of law and order on the oceans,’” the United Nations Convention on the Law of the Sea (“UNCLOS”) was released for signature at Montego Bay, Jamaica.151 UNCLOS subsequently entered into force on November 16, 1994.152 While the United Nations proclaimed that UNCLOS “established for the first time one set of rules for the oceans, bringing order to a system fraught with political conflict,” its “broad prescriptions” need to be modified in order to achieve effectiveness and make enforcement possible, specifically to the cruise ship industry.153

Cruise ships are affected by many provisions in UNCLOS; however, three aspects particularly affect the regulation and discharge of pollution created by this industry. Article 91 specifies the creation of an open registry of ships which, unlike closed registries,154 imposes lenient

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



registration requirements regarding “nationality, safety record, labor practices, or other traditional factors.”155 Ships registering with states through open registries are called flags of convenience.156 Next, Articles 92 and 94 indicate the jurisdictional controls states have over ships flying their flags. Article 92 gives States exclusive jurisdiction over ships flying their flags on the high seas,157 and Article 94 describes the duties of a flag state to include “jurisdiction and control in administrative, technical, and social matters over ships flying its flag.”158 Finally, Part XII of UNCLOS outlines the protection and preservation of the marine environment159 and state powers of enforcement.160 Each of these UNCLOS provisions interferes with MARPOL 73/78 by making it difficult for parties to satisfy MARPOL 73/78’s requirements and for MARPOL’s objective to “prevent the pollution of the marine environment by the discharge of harmful substances” to be fulfilled.161

1. Open Registry of Ships

UNCLOS Article 91 provides that there must exist a “genuine link between the State and the ship” when a state grants its nationality to ships.162 The genuine link requirement allows for the open registry of ships and thus flags of convenience. The problem with the article is the lack of definitions or guidelines as to what constitutes a “genuine link.” In essence, the genuine link requirement can be fulfilled by any definition a flag state wishes to use. This failure has led to “large numbers of ship-owners abandon[ing] the ship registries of their own states and re-registering in the

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.



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

The impact that Article 92 of UNCLOS has on MARPOL is linked to the problem created by UNCLOS 91: the creation of an open registry for ships. Article 92 of UNCLOS provides that “ships shall sail under the flag of one State only and. . .shall be subject to its exclusive jurisdiction on the high seas.”169 Flag states, according to Article 217 of UNCLOS, must

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.



provide for the “effective enforcement of rules, standards, laws and regulations [with applicable international rules and standards and with their own laws and regulations and those it has adopted under UNCLOS], irrespective of where violations occur.”170 In addition, if a vessel violates a rule or standard, the flag state must investigate.171 If it is determined that a violation has occurred, the flag state must punish the perpetrator.172

This part of UNCLOS impacts the enforcement of MARPOL 73/78 because it undercuts the incentive for flag states to prosecute vessels that fly their flags. This is due to the requirement that port and coastal states must inform the alleged violating ship’s flag state when there is a violation of an applicable international rule or standard,173 and that flag states have the exclusive authority to issue certificates of compliance with MARPOL provisions.174 Since no other party besides the flag state is empowered to investigate a ship for anything other than the presence of a valid certificate onboard, the party claiming a violation has no power to gather evidence or proof of an alleged violation.175 When a pollution violation occurs, flag states can forge the results of the inspections of their ships. Thus, flag states are disinclined to prosecute vessels flying their flags because if they can control the outcome of a violation proceeding, they have no reason to even start one.176

Flags of convenience further complicate this matter because countries that grant flags of convenience do not usually have “the wish or the power to control the companies themselves.”177 In addition, since countries offering flags of convenience gain economically from getting “additional tax revenue generated by ships registered under their respective flags,” they enforce environmental regulations less stringently.178 The problem with UNCLOS is simple: it “dictates a subtle preference in some instances for the primacy of flag state jurisdiction over coastal state jurisdiction, even where concurrent jurisdiction exists,” and “Neither treaty nor custom clearly provides for specific situations in which the flag state is actually stripped of its jurisdiction over [a] vessel.”179 In sum, the effectiveness of MARPOL is undermined because the sole authority over ships in MARPOL is entrusted to flag states, and when they do not have the preservation of the environment as their main interest and goal, MARPOL

170 Id. art. 217(1), at 1312. 171 Id. art. 217(4), (8), at 1312. 172 Id.173 See supra note 184. 174 Convention, supra note 83, art. 5, at 1322-1323. See supra Part II(B). 175 Id.176 Becker, supra note 88, at 631. 177 Id.178 Id. at 632. 179 Becker, supra note 88, at 177.



cannot be implemented to its fullest.180 The result is a vicious cycle in which violators perpetually violate because their flag states allow them. More ships reflag under flag states that do not have or enforce stringent standards and the grievances of states harmed by the violations are not addressed. The marine environment and vitality of the oceans are harmed. Collectively, MARPOL’s regulations and goals drown in polluted waters.

3. Enforcement of Pollution Violations

Part XII, Article 192 of UNCLOS requires states to protect and preserve the marine environment.181 States are supposed to take “all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source.”182 States must additionally adopt laws and regulations for vessels flying their flag or of their registry for the prevention, reduction and control of pollution of the marine environment that are at least as stringent as those generally accepted international rules and standards.183 The language here is very broad and fails to specify the procedures that should be followed if a flag state does not fulfill these obligations.

Coastal states are given some authority to adopt laws and regulations to prevent, control, or reduce marine pollution from foreign vessels, but they are confined within certain limits.184 States must also establish “international rules and standards to prevent, reduce and control pollution of the marine environment from vessels.”185 MARPOL, for example, is a regulation that a coastal state may have adopted. However, under UNCLOS, the laws and regulations that a coastal state adopts only apply in its territorial sea: an area of only twelve nautical miles from its shores.186 In addition, UNCLOS limits the power of states to seek reparations from foreign ships violating marine pollution laws and regulations.187 Monetary penalties may be imposed by a coastal state when a foreign vessel commits a violation within the territorial sea, except where there is “a willful and serious act of pollution in the territorial sea.”188 This means that a coastal

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.



state may only punish violators by assessing monetary penalties—unless there is a serious act of pollution. While it is beneficial that coastal states are able to pursue more aggressive remedies to redress more egregious violations, UNCLOS does not define what constitutes such a “willful and serious act of pollution.”189

While the circumstances outlined in UNCLOS Article 57 allow for coastal states to inspect a ship if there is a violation, UNCLOS imposes many limitations before a coastal state can actually investigate a foreign ship. One of the circumstances that warrants a physical inspection of a vessel is the presence of a “substantial discharge causing or threatening significant pollution of the marine environment.”190 UNCLOS fails to define what constitutes “a substantial discharge” and what it means by “causing or threatening significant pollution of the marine environment.”191

This language is vague, equally as vague as another requirement for the inspection of a ship: if the “information supplied by the vessel is manifestly at variance with the evident factual situation and if the circumstances of the case justify the inspection.”192 Again, there is an absence of an explanation as to what constitutes information supplied by the alleged violator as “manifestly at variance” with what actually seems to be occurring, and what amounts to a “case [that] justif[ies] such inspection.”193 In addition, even if a coastal state determines that an activity of a ship falls within this article, it may not inspect a ship until the ship refuses to give the coastal state any information or the information given by the ship seems to be contrary to what the coastal state thinks is taking place.194 Therefore, a coastal state has a variety of unclear standards to meet in order to take action against a ship that appears to be polluting the ocean. Such confusing regulations for investigating ships will likely preclude a coastal state from pursuing enforcement actions. The imprecise language of UNCLOS works against its objectives of regulating ships and their pollution.

In addition, proceedings imposed by a coastal state against a foreign ship that was in “any violation of applicable laws and regulations orinternational rules and standards” relating to pollution outside of the coastal state’s territorial sea can be suspended by the flag state.195 The flag state consequently takes over the proceedings to impose a penalty against the alleged violator.196 Within “due course” of time, the flag state must make

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.



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.



IV. THE INTERNATIONAL SOLUTION

Cruise ship pollution is a “global problem that requires a global solution.”204 This section suggests possible solutions to the problems presented above. It also provides proposals for harmonizing MARPOL and UNCLOS, enabling them to most efficiently regulate the cruise ship industry and preserve the oceans of the world.

A. The Role of the IMO

To promote the well-being of the seas and the enforcement of MARPOL, the IMO should be given certain enforcement powers. Since referrals of violations to flag states do not result in prosecutions, the IMO can enforce MARPOL instead of the flag states, which are the main enforcers in the current system.205 A problem that would arise under this regime (if it is implemented) is the difficulty of finding sources for funding for the IMO.206 A potential solution could include the member states of the IMO contributing money they spend on enforcement to fund an enforcement arm of the IMO.207 Once the enforcement arm is established, it could then operate by taking a certain percentage from penalties that it assesses.208 Member states could also be charged a membership fee which would provide funds for the development and support of this division.

Another way to fund this enforcement arm would involve setting up a surcharge to be paid per cruise ship passenger.209 The Federal Clean Cruise Ship Act (“FCCSA”), submitted to the United States House of Representatives and Senate in 2004, is a proposal that specifically regulates the cruise ship industry. 210 Although it has not been enacted in the United States, it provides examples of what can be done to regulate the industry and thus curb the pollution caused by it. The FCCSA provides that a “reasonable and appropriate” fee “shall [be] establish[ed] and collect[ed] from each cruise vessel. . . in an amount not to exceed $10 for each paying passenger on a cruise vessel voyage, for use in carrying out this Act.”211

The FCCSA establishes the price of such a fee based on the cruise ship’s size, economic share, and “other factors as are determined to be appropriate

204 Schulkin, supra note 15, at 132. 205 Id. at 124. 206 Becker, supra note 88, at 638. 207 Id.208 Id.209 Cruise Ship Pollution State Activity Page, http://www.serconline.org/

cruiseShipPollution.html (last visited Mar. 5, 2007). 210 Federal Clean Cruise Ship Act of 2004, H.R. 1636, 109th Cong. (2004) [hereinafter

FCCSA]. http://www.theorator.com/bills109/hr1636.html (last visited Apr. 1, 2008). 211 See id. § 13(c)(1).



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

Modifying UNCLOS would enhance MARPOL implementation and promote the harmonization between MARPOL and UNCLOS. As the main problem with enforcing MARPOL stems from flags of convenience, the current application of flags of convenience should either be eliminated or modified by defining the “genuine link” between the state and the ship found in Article 91 of UNCLOS. The United Nations Convention on Conditions for Registration of Ships (“UNCCRS”)215 serves as a model of a proper definition of what constitutes a genuine link.216 The objective of the UNCCRS is to strengthen the “genuine link between a State and ships flying its flag” so that jurisdiction and control over such ships can be exercised effectively. .”217 This objective is precisely what is missing in UNCLOS’s requirement of the existence of a “genuine link” between a state and its flagged ships.218 UNCCRS provides that before a state of registration enters a ship into its registry, it must “ensure that the ship-

212 See id. § 13(c)(3). 213 See id. § 13(c)(5). 214 Becker, supra note 88, at 632. 215 United Nations Convention on Conditions for Registration of Ships, opened for signature

Feb. 7, 1986, 26 I.L.M. 1229 [hereinafter UNCCRS]. 216 Id. At 1229. s of August 31, 1987, thirteen countries have signed UNCCRS, although none

of them has ratified it. Once forty states ratify the treaty, “representing twenty-five percent of relevant gross tonnage as set forth in Annex III of the Convention,” it will enter into force.

217 Id. art. 1, at 1237. 218 UNCLOS, supra note 19, art. 91(1), at 1287.



owning company or a subsidiary ship-owning company is established and/or has its principal place of business within its territory in accordance with its laws and regulations.”219 This article guarantees that flagged ships are economically connected to the flag state. By using a standard similar to that set forth by UNCCRS, what constitutes a genuine link would thereby be established and the objectives of UNCLOS and MARPOL would merge towards ensuring greater protection of the sea.220

If flags of convenience cannot be eliminated or a genuine link standard cannot be established, UNCLOS can be amended by more explicitly prescribing the duties of a flag state. The ability of flag states to preempt prosecution by coastal states should be amended by either eliminating this preemption power, or amending it to place objective duties upon flag states.221 If a flag state violates such duties, then it is stripped of the power of preemption. An example of such a violation would be a flag state “repeatedly discharg[ing] its obligation to enforce effectively international rules and standards.”222 As coastal states are not able to seek non-monetary damages except for “willful and serious” discharges within a state’s territorial sea under UNCLOS, an amendment that would promote the enforcement of violations would allow coastal states to seek injunctive relief.223 Such injunctive relief could require cruise ships to “comply with international standards throughout their voyages or risk being blocked from returning to ports in the country where they normally board passengers.”224

Since 1993, over $48.5 million in fines have been assessed by the Justice Department in the United States alone against ten cruise lines for illegal dumping.225 This is evidence that the cruise ship industry has paid hundreds of millions of dollars in fines for its unscrupulous handling of environmentally harmful wastes, yet it continues to pollute. This supports the assertion that coastal states must be given punitive options other than monetary ones.

C. Amendments to MARPOL

Amendments to MARPOL would further promote the coordination between its regulations and those of UNCLOS. A way that MARPOL could address the enforcement problems with flagged states is to redefine

219 UNCCRS, supra note 215, art. 10(1), at 1240. 220 See supra, note 166. 221 Schulkin, supra note 15, at 128. 222 Id.223 UNCLOS, supra note 19, art. 230, at 1315. 224 Schulkin, supra note 15, at 128. 225 Cruise Line Dumping Convictions Add Up, USA TODAY, Nov. 7, 2002, available at

http://www.usatoday.com/ travel/news/2002/2002-11-08-cruise-dumping-side1.htm.



“administration.” Currently, “Administration” is defined in MARPOL as “the Government of the State under whose authority the ship is operating. With respect to a ship entitled to fly a flag of any State, the Administration is the Government of that State.”226 By applying the definition that MARPOL assigns to certain fixed or floating platforms engaged in “exploration and exploitation of the sea-bed and subsoil,” which defines Administration as the government of the coastal state concerned, the problem of flags of convenience would be eliminated.227 Enforcement of environmental laws and regulations is thus promoted in a way compliant with UNCLOS, with the cruise ship industry further deterred from polluting.

In addition, Article 5 of MARPOL, which regulates certificates and outlines rules regarding inspection of ships, must outline the steps that the inspecting party can take to ensure that a ship without a valid certification does not sail.228 Currently, this article allows an inspecting party to take against ships not maintaining adequate standards “such steps as will ensure that the ship shall not sail until it can proceed to sea without presenting an unreasonable threat of harm to the environment.”229 Clarifying definitions must be added to this article in order to give guidance to inspecting states as to what “steps” are necessary and proper to ensure that ships without valid certification do not sail. Clarity as to what “an unreasonable threat of harm to the environment” entails is needed as well.

Allowing an inspecting state to take samples of discharges from the ship, and defining this as an appropriate “step,” would potentially address these problems. A possible definition for what constitutes “unreasonable” is one detailing limits on effluent discharges from these samples. If samples meet the specified standards for the various cruise ships wastes, then the ship is not posing an “unreasonable” harm. If a samples do not meet such standards, indicating that a ship poses an “unreasonable” harm to the environment, the inspecting state may follow the suggestion currently contained in MARPOL: “grant such a ship permission to leave the port or off-shore terminal for the purpose of proceeding to the nearest appropriate repair yard available.”230 The effluent limits of discharge can be modeled after those provided in the FCCSA.231 These limits provide a standard upon

226 Convention, supra note 83, art. 2(5), at 1321. 227 Id.228 Id. art. 5(2), at 1323. See supra Part II(B). 229 Id.230 Convention, supra note 83, art. 5(2), at 1323. 231 FCCSA, supra note 212, § 5. Section 5 of the FCCSA provides discharge limits for treated

sewage, graywater, fecal coliform, and residual chlorine. Id. For example, the FCCSA provides that not more than ten percent of fecal coliform samples can exceed forty fecal coliform per one hundred milliliters. See id. § 5(b)(2)(B).



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. AnnexesII 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

232 See id. § 9(d)(3). 233 Id.234 ACSI, supra note 57. 235 Offloading means “the removal of a hazardous substance, hazardous waste, or

nonhazardous solid waste from a commercial passenger vessel onto or into a controlled storage, processing, or disposal facility or treatment works.” See id. § 46.03.490(C)(9).

236 See id. § 46.03.475(e)(2). 237 Schulkin, supra note 15, at 122. 238 Hull, supra note 11, at 100.



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

D. Other Proposals to Promote Harmonization

In addition to modifying UNCLOS and MARPOL individually, there are steps that can be taken that will harmonize these regimes and promote the wellbeing of the world’s oceans. While UNCLOS addresses ballast water in Article 196, there are no guidelines for handling this waste.244

Currently, the Ballast Water Management Convention (“BWMC”) introduced by the IMO includes “technical standards and requirements in the regulations for the control and management of ships’ ballast water and sediments.”245 It provides reception facility requirements, research and monitoring, survey, certification, and inspection regarding ballast water discharge on ships.246 This convention has not entered into force yet. If UNCLOS adopts the guidelines of this convention, then the management of ballast water will be synchronized with the BWMC when it enters into force and there will be minimal obstacles—if any—to its regulation and

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.



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

247 Hull, supra note 11, at 101. 248 FCCSA, supra note 210, § 5(1)(2)(A). 249 Nelson, supra note 57, at 26. 250 Id.251 Id.252 Schulkin, supra note 15, at 131.



A recognized problem with the enforcement of UNCLOS and MARPOL is the exclusive jurisdiction of flag states over ships flying their flags.253 Consequently, other states may not inspect a ship unless there is a clear violation. The FCCSA and the United Nations Fish Stocks Agreement have implemented boarding and inspection provisions that, 254 if applied to the cruise ship industry through MARPOL and UNCLOS, would greatly reduce cruise ship pollution, and increase the enforcement against violating cruise ships. Under the FCCSA, “each cruise vessel that calls on a port of the United States shall be subject to an unannounced inspection at least annually.”255 The FCCSA additionally requires each ship to submit a blueprint of the vessel to authorities detailing the location of discharge pipes and valves.256 This provision, in effect, aids in identifying ships that install bypass hoses that dump oily bilge water and other waste impermissibly into the ocean.257 In addition, the FCCSA provides for announced and unannounced inspections by independent observers placed onboard cruise ships.258 These inspectors monitor the compliance of applicable laws by examining the “operations, equipment, or discharges, including sampling and testing of cruise ship discharges.”259 UNFSA further develops a system for boarding and inspection.

Article 21 of the UNFSA establishes that a “State Party may,” through its authorized inspectors, “board and inspect. . .fishing vessels flying the flag of another State Party to this Agreement, whether or not such State Party is also a member of the organization or a participant in the arrangement, for the purpose of ensuring compliance.”260 The principles and procedures governing boarding and inspection are detailed in Article 22.261 Effectively, Article 21 requires states to establish procedures for boarding and inspection to which they will be held responsible.262 To apply this to the cruise ship regime, states belonging to MARPOL and UNCLOS can establish boarding and inspection procedures in compliance with the standards set forth in Article 21. Member states of both regimes are likely to suggest procedures for each MARPOL and UNCLOS that would mirror

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.



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’sadoption 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.



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

The pollutants produced by cruise ships “are of sufficient quantity and concern that regulations based in law are the only means for dealingeffectively with cruise ship industry practices.”270 The international laws currently in place are the guideposts for all nations and are the only way for effectively controlling the cruise ship industry. Blackwater, graywater, oily bilge water, ballast water, and other wastes discharged from cruise ships must be regulated in order to halt their threat to the vitality of the seas and the global environment as a whole.

When former President Richard Nixon announced the creation of the EPA, he stated: “For pollution control purposes the environment must be perceived as a single, interrelated system.”271 The oceans and the marine environment are major parts of this system and therefore must be as fervently advocated for as any other facet of the environment. Therefore, the IMO’s actions along with MARPOL and UNCLOS, two of the foremost international regulations that seek to protect the marine environment and control the pollution that threatens its integrity, must reflect this concept that “marine pollution does not respect territorial boundaries;” rather, it “impacts the entire spectrum of the marine ecosystem.”272

Although there are some aspects of MARPOL and UNCLOS that hinder the most effective enforcement and regulation of marine pollution

268 Id. at 19. 269 Id.270 ROSS A. KLEIN, THE CRUISE INDUSTRY AND ENVIRONMENTAL HISTORY AND PRACTICE:

IS A MEMORANDUM OF UNDERSTANDING EFFECTIVE FOR PROTECTING THE ENVIRONMENT? 2 (2003), available at http://www.bluewaternetwork.org/reports/rep_ss_kleinrep.pdf.

271 Hull, supra note 11, at 101. 272 Id. at 95.



(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 ships274. 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.

273 Hull, supra note 11, at 71. 274 Schulkin, supra note 15, at 132.

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