Towards Comprehensive Protection of the Marine Environment: Testing the Boundaries of the MARPOL and BASEL Regimes

Abstract: This thesis discusses the potential conflicts between the MARPOL and BASEL regimes in relation with management of wastes derived from operations of ships. The analysis whether the BASEL Convention provides an overarching regime to deal with waste cycle from generation to disposal is also addressed for determining if MARPOL has to complement this regime. To this end, a holistic view regarding the evolution of the control of ship source pollution and transboundary movement of wastes is presented. This historic approach reveals that fundamental principles governing transboundary transfers are inapplicable to wastes generated on board vessels. An essential piece of analysis is the exclusion of wastes derived from normal operations of ships which discharge is covered by another Convention, i.e. MARPOL, from the scope of the BASEL Convention. This exclusion is relevant to define up to what extent the categorization of wastes as derived from normal or abnormal operations influences their juridical treatment. In addition, it is scrutinized whether ship residues received into port reception facilities, as required by MARPOL, are subject to the national legislation of the State receiving those wastes or to the environmentally sound management obligations prescribed in the BASEL Convention. Furthermore, this thesis attempts to clarify the potential conflicts between the BASEL regime and navigational freedoms of vessels engaged in transboundary movement of wastes. Finally, the jurisdictional powers of flag, coastal, and port States in relation to ship source pollution are examined. From the study of the scope of application of MARPOL and the BASEL Convention together with their main obligations, it is concluded that these Conventions are mutually exclusive. In this sense, efforts directed to justify their concomitant application undermine the effectiveness of both regimes.