The Development of International Conventions Relating to Marine Pollution: An Appraisal Using the TASCOI method of Organisational Practice in Reference to Torrey Canyon

Abstract: This thesis deals with the development of international conventions that relate to marine pollution, after the occurrence of a big oil pollution incident. In order to facilitate the description of the different stages, the approach used is the TASCOI method. This is a model used in organisational practice for the purpose of establishing how a process occurs and defining the role of different entities involved in the process. TASCOI stands for Transformation, Actors, Suppliers, Customers, Owners and Interveners. Transformation includes the whole process of making new conventions in the sense that the term stands for Input, that is to say existing conventions that have proved inadequate, the Learning System, where the forming of the new convention occurs, and finally the Output resulting in the finished text. Actors are the people closely associated with the Transformation since they take active part in the Learning System by producing the Output. Suppliers are the entities that supply the Learning System and therefore the Actors with materials that aid the discussions when forming a new convention. Customers are the beneficiaries of the outcome of the Transformation. The Owners include the entity that has complete overview of the Transformation and can decide to change the Actors or reject the proposed Output. The Interveners are an interesting group in the sense that, although not being directly involved in the process, they include the outside environment that is affected by the Output of the Transformation. In this thesis the TASCOI-method provides the analytical framework for describing the development of the new conventions and for establishing the different groups of people involved in the decision-making process that leads to a new convention. In order to better comprehend the tensions arising between Actors during the Transformation process it is important to remember the contradictory attitude between creating international law and guarding national sovereignty. The objective when creating international law is to harmonise national rules into one consistent international regime that is to be followed by the states that ratify it. Upon ratification, however, the state in fact gives up its national right as an independent law-maker in this field and so over-all its sovereignty is somewhat curtailed with respect to that issue. The international organisations in shipping that have law-making powers are the International Maritime Organization (IMO), which is the most important one, and the International Labour Organization (ILO). The Comité Maritime International (CMI) was previously a law-making body, but now it acts in consultative capacity. Thus, although the IMO deals mostly with regulatory conventions and public conventions it has also taken over the private sphere in maritime law, that was initially considered to be the area where CMI was the law-maker. This is due to the Torrey Canyon incident of 1967, when the Legal Committee within the IMO was established. The IMO and CMI are very important especially in relation to the Transformation made in the Diplomatic Conference of 1969, which dealt with issues arising as a result of this incident and therefore is the Learning System of the Transformation process. Before embarking on an in-depth study of the Torrey Canyon it is important to note the importance of litigation after a major oil pollution disaster. The litigation of Argo Merchant, Amoco Cadiz, Exxon Valdez and Erika, show the practical application of existing law in those cases and the legal consequences produced. The outcomes make it clear that litigation has helped to uncover other problems not immediately seen when giving Outputs of transformations. In other words, these litigation processes give signals to the Transformation that the Output is not satisfactory and should therefore be referred back to the Learning System. The Torrey Canyon incident is the first oil pollution catastrophe in modern times and as such the incident together with the instruments it produced stands for the development of modern international pollution regimes. The Transformations made at the Diplomatic Conferences of both 1969 and 1971 directly afterwards were first attempts to make significant progress relating to the right of intervention for coastal states on the high seas in cases of oil pollution casualties that might threaten their shoreline. Also the question of liability regimes and limitation of liability was addressed and settled. The Transformation produced the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (Intervention Convention), the International Convention on Civil Liability for Oil Pollution Damage (CLC) and the International Convention on the Establishment of an International Compensation Fund for Oil Pollution Damage (Fund Convention). The analytical framework in the form of the TASCOI method used in this thesis proved to be adequate in defining the different stages that lead up to the formation of the three conventions resulting from the Torrey Canyon incident. The applicability of the model in relation to the other occurrences referred to was also established in Chapter 4. Furthermore it is of importance to notice that the scheme used in order to depict the Transformation process does not have to include real life occurrences in order to be useful for creating learning systems. As for the Transformation resulting from the Torrey Canyon incident, there are certain areas that need more development in the light of the objectives put forward by the IMO in terms of harmonisation. There is also a need to eliminate grey areas so that there are clear regulations with no possibility of forum shopping and other legally questionable actions. It is clear though, when looking at Torrey Canyon, that had the conventions been in force during the time of the incident, the international community would have reacted quite differently to the British bombing of the ship since Britain would have had the authority needed to justify their actions under the Intervention Convention, due to the imminent danger of pollution at hand. Furthermore, Great Britain together with France would have received more from the shipowners than the actual amount of 7 million francs for the damage caused to their coasts and the clean-up costs due to the CLC and Fund Convention. Lastly, the handling of pollution would not have involved the spraying of detergents, but would probably have been done in some other, more environmentally friendly form. In other words, there were many valuable lessons learned from the incident and important Transformations occurred in the aftermath of it. So in order to provide comfort for the poor wreck of the Torrey Canyon, although forever cursed as the ship always to be remembered by providing the first environmental disaster, a lot of good has come out of the misery she created. Therefore, although she is at rest somewhere near the Scilly Islands in what is today part of the British territorial seas, the ship and the people close to her during the time of the incident, can exhale knowing that her loss did not go by unnoticed and that her name will not be forgotten.