Molenaar, Dr. Erik Jaap

English

University of Maine, School of Law: Digital Commons

Ocean and Coastal Law JournalVolume 12 | Number 2 Article 72006Tan: Vessel-Source Marine Pollution, The Law AndPolitics Of International RegulationDr. Erik Jaap MolenaarFollow this and additional works at: http://digitalcommons.mainelaw.maine.edu/ocljThis Book Review is brought to you for free and open access by the Journals at University of Maine School of Law Digital Commons. It has beenaccepted for inclusion in Ocean and Coastal Law Journal by an authorized administrator of University of Maine School of Law Digital Commons. Formore information, please contact mdecrow@maine.edu.Recommended CitationDr. Erik J. Molenaar, Tan: Vessel-Source Marine Pollution, The Law And Politics Of International Regulation, 12 Ocean & Coastal L.J.(2006).Available at: http://digitalcommons.mainelaw.maine.edu/oclj/vol12/iss2/7*. Senior Research Associate, Netherlands Institute for the Law of the Sea (NILOS),Associate Professor, Faculty of Law, University of Tromsø.361REGULATION OF VESSEL-SOURCE MARINEPOLLUTIONDr. Erik Jaap Molenaar*VESSEL-SOURCE MARINE POLLUTION, THE LAW AND POLITICS OFINTERNATIONAL REGULATION.  By Alan K. Tan, Cambridge UniversityPress, 2006.  Pp. 416.This excellent monograph by Alan Tan examines the historicaldevelopment and current content of international regulation of vessel-source marine pollution as well as the range of State and non-State intereststhat have shaped and continue to shape this regulatory activity.  As thetext’s focus is on the latter element, it conveniently complements previousresearch that has primarily focused on international law relating to vessel-source marine pollution.  As such, Dr. Tan has intended his research tobuild on, and to provide a welcome update of, the well-known works ofAbecassis, Gold, M’Gonigle and Zacher, Mitchell, and others.  There is nodoubt that he has succeeded in this respect.Aside from the comprehensive Tables of Conventions, Instruments,Legislation, and Cases, the monograph consists of three parts.  Part A, ‘TheRegulation of Vessel-Source Pollution in its Eco-Political Context,’ issubdivided into two chapters: chapter one, ‘Vessel-Source Pollution, theEcological Imperative and the Compliance Problem,’ and chapter two, ‘TheDynamics of the Law-Making Process: Actors, Arenas and Interests.’  PartB of the text, ‘Vessel-Source Pollution and the International LegislativeProcess,’ consists of four chapters, namely chapter three, ‘Vessel-SourcePollution and Regime Formation,’ chapter four, ‘Jurisdiction over Vessel-Source Marine Pollution,’ chapter five, ‘Implementation and Compliance,’and chapter six, ‘Liability and Compensation.’  Finally, part C, ‘The Futureof Regulation’ consists of chapter seven, ‘Challenges and Prescriptions.’In chapter one, Tan lays out the objectives, scope, and outline of themonograph and briefly summarizes the main issues that will be dealt with,362 OCEAN AND COASTAL LAW JOURNAL [Vol. 12:2as well as hinting at possible regulatory reform that could resolve some ofthe most pressing problems.  In line with the monograph’s character, Tandevotes little attention to juridical definitions.  Therefore, the definitionsof flag, coastal, and port State are very straightforward, taking little accountof standard and potential scenarios for exercising prescriptive andenforcement jurisdiction in this sphere of international regulation. Tan next provides an introductory overview of the environmental,safety, security, military, and socio-economic interests of maritime andcoastal States and other actors (shipowners, operators, cargo owners,charterers, insurers, classification societies, and non-governmentalorganizations).  Tan also explores the arenas in which these interests are tobe balanced, focusing primarily on the International Maritime Organization(IMO).  Subsequently, chapters three and six outline the various intereststhat sparked the historical development and current content of specificaspects of the international regulation of vessel-source marine pollution.For example, Tan examines the load-on-top (LOT) system, the double hullrequirement, vessel-source air pollution, harmful aquatic organisms andballast water management, as well as the 1969 and 1971 Civil Liability andFund Conventions.  Of particular interest are Tan’s many recommendations in chapterseven on potential reform of the international regulatory process and thebody of international regulation per se.  Tan recommends methods toensure market discrimination against sub-standard shipping by introducingliability for non-shipowners (e.g. cargo owners, charterers, and classifica-tion societies) and making registration in developed States attractive(thereby ensuring higher flag State performance), inter alia, by the use oftaxes or other disincentives for relevant nationals and a global approach toport State control that addresses the shortcomings of regional port Statecontrol.  The latter is currently also considered in the sphere of theinternational regulation of marine capture fisheries. None of Tan’s recommendations relate to the modification of theinternational legal framework—in particular the balance in jurisdiction andinterests struck by the 1982 United Nations Convention on the Law of theSea—between coastal States, port States, flag States, and the internationalcommunity as a whole.  Nevertheless, Tan does advocate that proceduresshould be adopted within IMO to approve measures to protect naturalresources within the maritime zones of coastal States upon the latters’request.  It seems that this would address his concern that “the wholehistory of marine pollution regulation over the past 80 years or so hasessentially been a chronicle of the gradual retreat of exclusive flag state2007] Book Review 3631. Alan Tan, Vessel-Source Marine Pollution, The Law and Politics of InternationalRegulation 19 (2006).control and the concomitant expansion of coastal and port statejurisdiction.”1Many of Tan’s recommendations concern IMO.  He not only advocatesthat IMO should pursue more pro-active rule-making, preferably byestablishing a new IMO body or by mandating the IMO Secretariat withsuch a role, but also that the IMO Secretariat should be given powers toassess the performance of flag States and other actors.  The latterrecommendation is inspired by IMO’s Voluntary Member State AuditScheme.  It is interesting in this context to point to currently increasingsupport within the sphere of marine capture fisheries for performanceassessments, especially for regional fisheries management organizations.The IMO scheme is building on a similar system developed by theInternational Civil Aviation Organization, thus pointing to broader supportfor accountability in and by global institutions.In his final thoughts, Tan acknowledges that some recommendationsappear at first sight mutually exclusive, but he convincingly argues that atsecond glance they are in fact compatible.  Still, the list of recommenda-tions is so extensive and ambitious that the majority of them are not likelyto be implemented in the coming years.  This, of course, should not stopacademics from making such arguments; hopefully policy makers willseriously consider these types of recommendations.

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