International Laws on Oil Pollution Caused by Ships and Their Enforcement in Vietnam

第 55 卷 第 2 期

2020 年 4 月

JOURNAL OF SOUTHWEST JIAOTONG UNIVERSITY

Vol. 55 No. 2

Apr. 2020

ISSN: 0258-2724 DOI：10.35741/issn.0258-2724.55.2.55

Social Sciences

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NTERNATIONAL

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AWS ON

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OLLUTION

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AUSED BY

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NFORCEMENT IN

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IETNAM

船舶造成的国际油污法律及其在越南的执行

Pham Van Tan

Vietnam Maritime University

No.484 Lach Tray Street, Haiphong City, Vietnam, [email protected]

Received: February 18, 2020 ▪ Review: March 19, 2020 ▪ Accepted: March 25, 2020

Abstract

Pollution in the marine environment, especially pollution caused by oil, is of major interest to the international community because the sea plays a major role in human life. With the rapid development of Vietnam’s maritime activities, the risk of oil pollution in Vietnam’s sea is increasing. Therefore, the study of the international laws on oil pollution caused by ships is also an urgent and necessary issue for Vietnam. The system of modern international laws has formed the legal regulatory framework to address oil pollution caused by ships at the sea by a series of international conventions related to oil pollution. With the comparison method and assessment method, the article describes a new idea for improving the oil pollution law system of Vietnam, based on the analysis and comparison of international conventions on oil pollution caused by ships with several Vietnam laws, including: United Nations Convention on the Law of the Sea 1982; International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978; International Convention on Civil Liability for Oil Pollution Damage 1992; and International Convention on Civil Liability for Bunker Oil Pollution Damage 2001. From these analyses and comparisons, the author offers some learned lessons for Vietnam, which have helped Vietnam to develop legal documents to improve the legal system regarding oil pollution – which is a necessity for Vietnam at present.

Keywords: Oil Pollution, International Law, Vietnam’s Law, Marine Environment Pollution, Maritime Law

摘要 海洋环境中的污染，特别是石油造成的污染，是国际社会关注的重大问题，因为海洋在人类 生活中起着重要作用。随着越南海上活动的迅速发展，越南海洋中石油污染的风险正在增加。因 此，对船舶造成的石油污染的国际法的研究也是越南的当务之急。现代国际法体系已形成法律法 规框架，以通过一系列与石油污染有关的国际公约来应对海上船舶造成的石油污染。本文通过比 较法和评估法，在分析和比较涉及越南法律的船舶造成的油污国际公约的基础上，提出了一种改 进越南油污法律体系的新思路，其中包括： 1982 年海洋法；经 1978 年议定书修正的 1973 年国际 防止船舶造成污染公约； 1992 年国际油污损害民事责任公约；以及 2001 年国际船用油污损害民 事责任公约。通过这些分析和比较，作者为越南提供了一些经验教训，这有助于越南制定法律文

件以改善有关油污的法律制度，这对于目前是越南。 关键词: 油污染，国际法，越南法，海洋环境污染，海事法

I. I

Today, most of the world’s oil is transported by sea; therefore, the risk of marine pollution caused by shipped oil is increasing. Oil pollution will affect marine ecosystems and the national economy; therefore, we need to take reasonable measures to prevent and adequately compensate for such damage. Marine economic development activities are the current direction of development of several coastal states. Marine economic activity is the use of marine spaces for economic purposes, which affects marine ecosystems and can cause damage, including pollution. To protect organizations and individuals who have suffered loss or damage from pollution, countries are using legal instruments to regulate economic activity and manage the responsibility for pollution damage from vehicles operating at sea. Additionally, due to the serious nature of the problem of marine environment pollution caused by ships and the international characteristics of maritime activities, building a legal framework to control the responsibility for pollution damage is very important for protecting the benefits of victims of pollution.

With the rapid development of maritime activities, the risk of marine pollution in Vietnam’s sea is increasing, especially the marine pollution related to the oil of ships and maritime activities. However, the cases of insufficient compensation are increasing, i.e., the compensation amount is not adequate to compensate for the actual loss; up to 77% of oil spills that occur at water areas under the jurisdiction of Vietnam are not compensated fully and satisfactorily or are in the process of settlement [1]. Therefore, the study of international laws on oil pollution caused by ships is an urgent and necessary issue for Vietnam.

The international laws on oil pollution caused by ships at sea are international principles and legal norms to prevent and remedy the consequences of oil spills. International conventions are one of the basic and important sources of modern international laws. Through comparison and assessment, the article describes a new idea for improving Vietnam’s oil pollution legislature, based on the analysis and comparison of international conventions on oil pollution caused by ships with Vietnam laws. From these analyses and comparisons, the author offers some

lessons for Vietnam, which have helped Vietnam develop legal documents, such as the Law of the Sea of Vietnam, Law on Environmental Protection of Vietnam, Vietnam Maritime Code, etc., to improve the legislature regarding oil pollution.

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1982

With regard to the sources of pollution caused by ships, the Convention requests countries to apply the laws, regulations and implement all possible measures in order to prevent as well as lower the ship-induced marine environment pollution are registered or carried flag by their country. These countries have the right to outline special conditions for foreign ships to enter the ports or inland waters for the purpose of preventing and lowering the marine environment pollution caused by foreign ships, including a ship that exercise the tight of innocent passage in the territorial sea, as well as in the exclusive economic zone.

Part XII of the Convention stipulates the protection and preservation of the marine environment (from Article 192 to Article 237). In particular, Article 192 stipulates that countries are obligated to preserve and protect the marine environment. At the same time, countries must depend on the situation to collectively or individually implement all the necessary measures deemed appropriate by the Convention to prevent and curtail marine environment pollution using the most appropriate possible means, and to align their policy in this field. Countries implement all necessary measures to the activity under their jurisdiction without causing damage to other countries and their environment, helping ensure that the pollution does not spread beyond the areas where they enforce sovereign rights under the Convention.

However, the Convention does not merely anticipate the remedies and traditional sanctions in the liability of counties (UNCLOS 1982, Article 232) [2]. Under the Convention, a country may be responsible for the losses or damages caused by the marine environment pollution, and also be liable for prosecution for not complying with the international responsibility to preserve and protect the marine environment under Article

235. Furthermore, countries can also be held responsible for activities outside the jurisdiction allowed by this Convention. Article 232 of the Convention stipulates that countries shall be responsible for losses or damages arising from measures carried out in accordance with Section six when 1) those measures are found to exceed reasonable requests, or 2) are deemed unlawful.

Thus, it can be inferred that UNCLOS 1982 expresses the global agreement, taking into the interests of all countries worldwide, including both industrial development countries and developing countries. It is the general legal basis for the protection and conservation of marine environment, marine resources, as well as settlement of issues related to marine pollution. B. The Enforcement of UNCLOS 1982 in

Vietnam

Vietnam is one of the 107 countries to have initially signed the Convention in Montego Bay-Jamaica. The country issued a resolution to approve this Convention on 14 July 1994. Since becoming a part of the Convention, Vietnam has actively modified and issued legal documents to conform the provisions of the Convention. Besides, the country has actively incorporated the Convention’s provisions into national law. After 18 years of joining of the Convention, Vietnam adopted Law of the Sea of Vietnam on 21 June 2012. This Law incorporated relatively complete provisions of the Convention into national law [3]. However, the provisions on the protection of marine environment and preventing the pollution caused by ships have not yet been incorporated into this Law. It is notable that the Law has only one Article stipulating the marine environment pollution - Article 35. In addition to the Law of the Sea of Vietnam 2012, the Prime Minister also issued a Decree No. 21/2012/ND-CP of March 21, 2012, on Management of Seaports and Navigable Channels, when compared to the Convention, it also do not fully reflect the content of marine pollution of the Convention, namely:

Firstly, the design of systems of routing to minimize the threat of accidents which might cause the marine environment pollution has not been clearly stipulated in the Law of the Sea of Vietnam. This Law only stipulates the layout of sea lanes and traffic separation in the territorial sea for innocent passage (Law of the Sea of Vietnam, 2012, Article 25 - Sea lanes and traffic separation in the territorial sea for innocent passage: The Government establishes and publicizes sea lanes and traffic separation in the territorial sea for innocent passage for the purpose of ensuring safety of navigation.), while

other maritime routes are not mentioned. Even the Vietnam Maritime Code only stipulates navigational channel and route in general terms (Vietnam Maritime Code 2015, Article 84 - Nautical chart of port water area, navigational channel and route) [4]. The Decree No.21 also only stipulates State management responsibilities for seaports and navigable channels (Decree No.21, Article 7) [5], there are not clear regulations on the design of systems of routing to minimize the threat of accidents which might cause the marine environment pollution.

Secondly, the provisions of the UNCLOS 1982 on measures for prevention of environmental incidents and dealing with environmental emergencies absolutely unmentioned in the Law of the Sea of Vietnam, provisions on the design, equipment, construction, manning and operation of a ship to ensure the safety of operations at sea is not stipulated in the Law of the Sea of Vietnam as well. In the Law on Environmental Protection of Vietnam, there is only the concept of “environmental incidents”, there is not the concept of “environmental emergencies” [6]. In Circular No. 33/2018/TT-BTNMT on Procedures for remediation of oil spills at sea - it is legal document guiding the remedy and dealing with oil spill incident, only identified the cases are considered “oil spill incident”, while “environmental emergencies” are not mentioned. Moreover, in Decree No. 21/2012/ND-CP of the Prime Minister, on Management of Seaports and Navigable Channels only mentions the measures to ensure the safety of oil tankers and other dangerous cargo ships [5], while general cargo ships, other ships are not mentioned, that these ships are non-small risk of pollution.

Thirdly, Article 35 of the Law of the Sea of Vietnam only stipulates on the loading or unloading goods or equipment that may cause damage to marine resources and human life, or may pollute the marine environment, there is not regulation on the ship’s oil. Concerning the discharge, this Article only stipulates that “may not discharge, sink or dump industrial waste, nuclear waste or other toxic waste”, it does not mention the oil, the oil residues (sludge) of the ships.

In conclusion, the provisions of the UNCLOS 1982 on the protection of marine environment, particularly pollution caused by ships have not yet been fully researched for incorporate into Vietnam national law, the Vietnam law on marine pollution is still inadequate. However, it has created a legal basis for Vietnam in the oil pollution prevention, and supplements to

perfecting Vietnam law on prevention of oil pollution caused by ships, especially the issue that has not been stipulated in the laws system of Vietnam is very necessary.

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1978

A. Main Provisions of MARPOL 73/78

The International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL 73/78) replaced the OILPOL 1954 and added measures to prevent marine pollution caused by oil [7]. The convention mentioned all sources of pollutants from ships (oil, noxious liquid substances in bulk, harmful substances carried by sea in packaged form, sewage, garbage, and air pollution from ships). This is one of the important conventions of the International Maritime Organization (IMO). To date, 150 countries worldwide have approved Annex III, 143 countries have approved Annex IV, 154 countries have approved Annex V, and 97 countries have approved Annex VI [8].

1) For Provisions on the Construction and Equipment of Ships to Prevent Oil Pollution At the request of the convention, all ships operating along international routes must have enough tanks to store oil sludge arising from operating the machinery onboard or from washing the cargo hold.

Oil tankers must be constructed in a way that limits the risk of an oil spillage in the event of running aground or accidently puncturing the hull. The structure of cargo tanks must be appropriate to limit the outflow of oil in an accident. In addition, depending on the type and size of the ship, ships must be fitted with appropriate oil filtering equipment to filter oil residues from the engine room or from washing the tank before pumping out to the sea.

With the aim of controlling the discharge of ships’ oil, oil tankers of 150 tons gross tonnage or more are required to be fitted with oil discharge monitoring and control systems. These systems must be fitted with a recording device to continuously record the total quantity discharged or the oil content and rate of discharge.

A new and important point of this convention is the special area concept (a sea area where for recognized technical reasons in relation to its oceanographical and ecological condition and the particular character of its traffic, the adoption of

special mandatory methods for the prevention of sea pollution by oil is required [7]). Special areas are very vulnerable to oil pollution; in these areas, the discharge of oil is completely forbidden. 2) For Provisions on Receiving the Oil Residues

(Sludge)

According to the provisions 12 of Annex 1 of this convention, every ship of 400 tons gross tonnage or more must have a tank that has adequate capacity to receive the oil residues (sludge) arising from operating machinery on board, such as oil leakages in the machinery spaces, lubricating oils, etc. In addition, to enable ships’ discharge pipelines to connect with the pipes of reception facilities. The convention also mentions the discharge of oil and prohibits any discharge of oily mixtures or oil into the sea from ships of 400 tons gross tonnage or more, except for if the oil mixture is filtered by oil filtering equipment that meets the requirements of this convention.

3) For Provisions on Oil Record Books

Under regulation 17 of Annex I, every oil tanker of 150 tons gross tonnage or more and every ship of 400 tons gross tonnage or more must have an Oil Record Book Part I. The Oil Record Book is to be completed on each occasion whenever any of following activities takes place: cleaning the oil fuel tanks or ballasting; cleaning water from oil fuel tanks or discharging dirty ballast; collecting and treating oil residues; discharging bilge water that has accumulated in a machinery space overboard; and discharging bunker bulk lubricating oil or fuel oil. In addition, any oil filtering equipment failure must be recorded in the Oil Record Book.

4) For Provisions on Segregated Ballast Tanks Every crude oil tanker of 20,000 tons gross tonnage or more and every product carrier of 30,000 tons gross tonnage or more must be provided with segregated ballast tanks, and the capacity of the segregated ballast tanks shall be so determined so that the ship can navigate safely on the ballast voyage without using the cargo tanks for water ballast. The segregated ballast tanks must also be safe in the event of a collision or grounding under the provisions of this convention.

5) For Provisions on the Shipboard Oil Pollution Emergency Plan

Under Regulation 37 of Annex I, every oil tanker of 150 tons gross tonnage or more and every ship of 400 tons gross tonnage or more must have the Shipboard Oil Pollution Emergency Plan, and this plan has been approved by register organization [7]. All oil tankers of 5,000 tons gross tonnage or more must have

prompt access to a computer and programs for residual structural strength calculations.

In one word, MARPOL 73/78 is mainly based on regulations that have a traditional nature, such as preventing pollution while operating the ship; preventing pollution caused by accidents; technical requirements; provisions on reporting; requirements for cooperation and preventing violations and ensuring the implementation of the convention; and requiring states to establish the waste reception system on the port to receive ships’ waste. The convention is the international legal basis for the prevention of marine environment pollution and the prevention of oil pollution from ships, and it is the principal international convention on the prevention of marine environment pollution caused by the operation of ships or accidents.

B. The Enforcement of MARPOL 73/78 in Vietnam

To ensure strict enforcement of the MARPOL 73/78 provisions, Vietnam has incorporated the provisions of this convention into the national legal system. This is done through issuing new legal documents on aspects related to preventing the pollution of the marine environment caused by ships and through modifying legal documents that are no longer consistent with the current conditions. The result of incorporating the convention’s provisions is that many legal documents convey international standards, the international maritime rules, and the technical standards set out by the convention. There are still many provisions of the Convention that have not been incorporated into national law, which creates major constraints while approaching, disseminating, and applying it, namely:

First, the Law on Environmental Protection of Vietnam, 2014 and Vietnam Maritime Code, 2015 contain provisions in accordance with MARPOL 73/78. However, the provisions have not yet been concretized to ensure convenient implementation of marine pollution prevention; these provisions are still indicative of the promulgation of more concretized by-laws. The content regarding requirements for equipment have been concretized in Circular No. 23/2010/ TT-BGTVT Promulgating National Technical Regulations on the Marine Pollution Prevention System of Ships - QCVN 26:2010/BGTVT [9]. The circular incorporated the provisions of MARPOL 73/78 into national law for application to the prevention of marine pollution caused by ships in the territorial waters of Vietnam. With the contents of regulations for construction and equipment to prevent pollution by oil (Circular

No. 23, section 2, technical regulations), this Circular has concretized regulation 12A and regulation 20 in Annex I of the MARPOL 73/78. Also, it states the regulations on the structure and equipment for preventing pollution in case of collision or stranding that apply to oil tankers of 600 gross tons or more in accordance with Annex I of the MARPOL 73/78. In addition, the above provisions have also been expressed at the Branch Standard No. 22 TCN 264-06 on Regulations for Prevention and Control of Pollution from Ships in Inland Waters [10].

Secondly, the lack of such standards leads to the use of some foreign standards. An example of this is the licensing for operating the waterway transport facilities that have a total capacity of diesel engines of less than 220 KW is based on Branch Standard No. 22 TCN 246-06 [10], in which, regulations for ships with a total capacity of diesel engines less than 220 KW do not need to install oil residue treatment equipment and only need to install tanks for storage of oil residues and oily mixtures. However, the MARPOL 73/78 stipulates that ports and anchorage areas must have facilities to receive and treat oil residues and oily mixtures of these vessels, and such oil residues and oily mixtures are periodically pumped ashore without being discharged directly into the sea. However, in fact, all wharfs, ports and anchorage areas throughout the territory of Vietnam still do not have reception facilities and treatment facilities for waste consistent with the provisions of the Convention. Therefore, all equipment of the ship is equipped to be licensed, then directly discharge oily mixtures into rivers and seas, which are uncontrolled because legal sanctions for this issue are limited. Vietnam has enacted many remedies to ensure the implementation of the Convention of Vietnam; however, the main remedies are sanctions of administrative violations with low fines (Decree No. 155/ 2016/ ND-CP on Penalties for Administrative Violations in the Field of Environmental Protection was issued by the Prime Minister on November 18, 2016, Article 4: Fine imposed on one administrative violation in the field of environmental protection which is VND 1,000,000,000 for individuals and VND 2,000,000,000 for organizations maximally.) and ineffective penalties [11].

Joining the Convention has created a legal framework to facilitate Vietnam’s cooperation with states and other subjects of international law in resolving problems related to preventing marine environmental pollution from ship oil. Although the implementation of the Convention

has been limited, it has yielded positive results, namely helping to raise awareness of the importance of preventing ship-caused marine pollution, including oil pollution, which will act as a basis for building and perfecting laws on ship-caused oil pollution. Incorporating the Convention into national law, and direct legal application, remain limited; however, it will help Vietnam improve laws on ship-caused oil pollution. Moreover, it will assist Vietnam in receiving support from member states of this convention, and international technological organizations and personnel, in completing the legal framework, application, and implementation of the Convention. Additionally, it will create mechanisms allowing Vietnam to cooperate with international organizations, regions, and member states to prevent pollution of marine environments. Furthermore, it will assist Vietnam in conducting fleet reviews, eliminating unfit ships, requiring ships to install adequate oil filter and safety systems, and in documenting the oil discharge process.

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1992

The International Convention on Civil Liability for Oil Pollution Damage 1969 (CLC 1969) was enforced in 1975 [12] and was amended by Protocol 1992 (CLC 1992). This Convention was adopted to ensure that compensation for oil pollution damage is quickly and effectively paid in full to relevant parties. A. Main Provisions of the CLC 1992 1) Application Scope of the CLC 1992

According to Article 2, this Convention will be applied to pollution damage and any prevention measures. In this context, prevention measures are defined as any reasonable measures carried out following an incident with the aim of minimizing or preventing such pollution damage. Even though the CLC 1992 is limited in geographical scope (The CLC 1992 applies to pollution damage occurring within the territory of Member State, including the territorial seas, and the exclusive economic zone of a Member State.If Contracting State has not established such a zone, in an area beyond and adjacent to the territorial sea of that State determined by that State in accordance with international law and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured.), it allows the application of prevention measures on the high

seas to prevent and limit pollution damage to the sea areas belonging to the jurisdiction of the Convention Member States.

2) Basis of Responsibility of the Shipowners Unlike the traditional principle that determines civil liability based on fault, the CLC 1992 stipulates strict liability of the shipowners. Under strict liability, the shipowners shall be liable for any oil pollution damage that has occurred irrespective of shipowners’ fault. Thus, according to the CLC 1992, the shipowners assume full responsibility for any damage regardless of its origin, with the exception of the cases outlined below:

1. Damage caused due to a war, insurrection, civil war, or a natural phenomenon of an exceptional and inevitable nature.

2. Third-party activities aimed at causing pollution damage.

3. Pollution damage wholly caused by the wrongful acts, or negligence of government or authority bodies that are liable for navigation aids or maintaining lights.

3) Limitation of Liability for the Shipowners Since 1 November 2003, the liability threshold was increased by 50.37% [13], [14]. Therefore, according to Article V (1), the shipowners have the right to limit liability for any accident with the total amount of ≈ 139 million USD [15].

There are many different opinions about limitation of Liability for the Shipowners, and it conflicts with the “the polluter pays” principle. Nonetheless, it is considered as a necessary means to balance the burden of strict responsibility of the shipowners.

4) Compulsory Insurance or Financial Security The CLC 1992 also establishes the compulsory insurance or financial security for potential plaintiffs, with the aim of ensuring that the compensation for damage is always available. When the drafting of CLC commenced in 1969, no consensus could be reached on the application of compulsory insurance for oil pollution damage. At the time, some scholars argued that compulsory insurance was not a necessary part of the compensation regime. Others opined that, without compulsory insurance, it would be impossible to enforce the strict liability regime [16]. The latter arguments prevailed and the CLC compulsory insurance system adopted in 1969 is still in force.

The CLC 1992 stipulates that the owners of ships carrying more than 2,000 tons of oil in bulk as goods must buy insurance, or provide a financial security. However, as smaller ships can also cause oil pollution damage to the marine

environment, some Member States of the CLC 1992 have enacted their own national laws to oblige small ships that are not within the CLC 1992 application scope to be responsible for oil pollution damage (For example, Chinese Government issued Measures of the People’s Republic of China for the Implementation of Civil Liability Insurance for Ship-induced Oil Pollution Damage in 2010. The applicable scope of the Measures is stipulated in Article 2, which states that, for all ships exceeding 1,000 gross tonnage carrying non-oil substances onboard, and all ships carrying oil substances that operate within the water areas belonging to the territorial seas of China, the shipowners must maintain the civil liability insurance for oil pollution damage caused by ships, or other financial security under the Measures.).

5) Settlement of Disputes

According to the CLC 1992, any persons that have suffered oil pollution damage may sue directly against the insurer or persons who provide financial security to the shipowners. According to the insurance law, however, this cannot be done in practice because there is no contractual relationship between the pollution damage victims and the insurer [17]. Moreover, in this case, insurers are entitled to limit their liability at the rate specified in the CLC 1992, even when the shipowners are not permitted to limit such liability. They may also require the shipowners to participate in the proceedings. The insurer can use whatever defenses the shipowners have provided under regulations of the CLC 1992.

In conclusion, most of the oil pollution incidents have been fully compensated under the CLC 1992, with the exception of some major unforeseen incidents. Moreover, it has ensured that the complaints related to oil pollution damage caused by ships are handled promptly. The benefits of the CLC 1992 are not only reflected in the growing number of successful claims, but also stem from the fact that it is a credible complement to the international laws governing oil pollution damage. However, as the responsibility of interpreting regulation of Convention rests with the courts of Member States, all Member States must play a more active role in ensuring adherence to the Convention. B. The Enforcement of the CLC 1992 in

Vietnam

Convention came into force for Vietnam on 17 June 2004. The CLC 1992 plays an important role in the Vietnam laws on compensation for oil pollution damage, namely:

Firstly, before joining the CLC 1992, Vietnam did not have the legal capacity to dealing with lawsuits of compensation for oil pollution damage caused by ships, especially in the lawsuits of marine environmental pollution damage with foreign elements. One of the typical examples is the Neptune Aries tanker (Singapore) crashed into the pier of Cat Tien Ports in October 1994 [18], spilling 1,584 tons of diesel oil and more than 150 tons of various kinds of oil from pipelines of the pier. Due to the influence of currents and tides, oil slick spread over 50-60 kilometers. With the severe consequences caused to the marine environment, only a few days after this incident, more than 1,000 claims of organizations and related individuals were submitted to the competent authorities. The whole damage caused by this accident was estimated at 28 million of USD, but the shipowners of Neptune Aries tanker only accepted to pay 1 million of USD for damage, because it applied the provisions of Vietnam Maritime Code in 1990, namely Vietnam Maritime Code in 1990 only contains provisions on limitation of liability of the shipowners in cases where the ships cause damage or loss of property in general (Article 195). It is noteworthy that such limitation of liability only applies to Vietnam’s ships, however, it didn’t have clearly stipulation in this Code. This led to the shipowners applied this Code in favor for themselves. After that, due to the relationship between the two countries and through negotiation, the shipowners of Neptune Aries tanker accepted to pay 4.2 million of USD for damage. The amount of compensation is meager and the difference is too large compared with the actual damage. If Vietnam has clear rules on compensation for oil pollution damage, and had incorporated the provisions of the CLC 1992 into national laws at that time, in this case, the victims would certainly have claimed much more compensation, because the amount of limitation of the shipowners under the CLC 1992 is much higher than under Vietnam national laws.

Secondly, after joining the CLC 1992, Vietnam has actively incorporated the provisions of the CLC 1992 into national laws and has a basic legal regulation related to compensation for oil pollution damage. However, issues of compensation for marine environmental damage caused by the oil spill are complex, we need some legal documents stipulate details of the process and procedures for compensation for damage caused by oil. Currently, Vietnam has two official documents on this issue, such as Circular No. 33/2018/TT-BTNMT on Procedures

for remediation of oil spills at sea [19], and Decision No.02/2013/QD-TTg to Promulgate the Regulation on Oil Spill Response [20]. The combination of these two documents has contributed to help Vietnam determine the liability for compensation for damage caused by oil pollution.

Thirdly, the CLC 1992 helps Vietnam to have a legal basis to complete provisions related to arrest of ships. Vietnam Maritime Code in 2015 has provisions of maritime liens, the maritime claims leading to maritime liens: The maritime liens shall be done by the competent court’s decision to impound a ship in connection with any maritime claim that leads to the maritime lien. However, in practice, the application is still limited, because we do not have experience. While the CLC 1992 stipulates that the court or other authority of any Member State of this Convention shall order the release of any ship which has been arrested in respect of a pollution damage claim arising from that incident. Vietnam is a Member State of the CLC 1992 [15], Vietnam can apply and incorporate this provision into national laws to complete national laws related to this field.

In conclusion, with the weakness and limitations of national legal systems on compensation for oil pollution damage caused by ships, the CLC 1992 helped Vietnam have a legal basis and complement national laws in this field. However, due to limitations of national laws, as well as Vietnam has not yet fully incorporated the provisions of the CLC 1992 into national laws, the implementation of the CLC 1992 in Vietnam is still inadequate and limited. It is one of the reasons for Vietnam having trouble in the claim for compensation for oil pollution damage caused by ships.

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2001

This Convention

International Convention on Civil Liability for Bunker Oil Pollution Damage 2001 (Bunker Convention 2001) shall not apply to pollution damage as defined in the CLC 1992, whether or not compensation is payable in respect of it under that Convention. This provision shows that the purpose of the Bunker Convention 2001 is to fill the gap of oil pollution caused by bunkers of the CLC and the Fund Convention, not the

alternative or complementary method for the CLC and the Fund Convention. Therefore, in the case that pollution damage could not be fully compensated or not compensated in light the scope of application of the Fund Convention or the CLC, the victims cannot look for applying the Bunker Convention 2001 to recover such damage. 2) The Liable Party under the Bunker

Convention 2001

The liable party for bunker oil pollution damage is the shipowners whose ships leaking bunker oil and caused such damage. The shipowners include the registered owner, manager, operator and charterer of a ship in this Convention, therefore, the scope of responsible party for bunker oil pollution damage is a broader than thereof under the CLC 1992.

3) Basis of Responsibility of the Shipowners Like the CLC, the Bunker Convention 2001 also adopted strict liability. And we can take an example of this problem, a cargo ship berthing in the harbor, and was struck by the harbor tug, resulting in the pollution caused by bunker oil of cargo ship. The owners of that cargo ship will be responsible for damage, although such pollution was caused by 100% fault of the harbor tug. 4) The Limitation of Liability

The Convention does not affect the rights of limitation of liability for the shipowners or insurers according to international or national limitation regime and it gave an example of the Convention on Limitation of Liability for Maritime Claims 1976 (LLMC 1976) (Article 6). But this Convention does not set out an independent limitation amount. With this provision, the Member States have the right to choose the limit regime to apply.

Also, there is no international fund for bunker oil pollution damage. It is, therefore, possible that claims under the Bunker Convention 2001 will not be compensated adequately.

5) Compulsory Insurance or Financial Security The registered owner of a ship having a gross tonnage greater than 1,000 registered in a Member State shall be required to maintain insurance or other financial security to cover his liability for oil pollution damage in an amount equal to limits of liability under the applicable international or national limitation regime, but in all cases, not exceeding an amount calculated under the LLMC 1976 and its amendments (Article 7).

There are many different opinions for the application of compulsory insurance for ships more than 1,000 registered gross tonnage. Some countries want to reduce the gross tonnage of ships to less than 1,000 registered gross tonnage.

However, the reduction of the gross tonnage of ships will increase the administrative burden of issuing certificates to the Member States. Some countries want to increase the gross tonnage of ships to reduce the effect of regulations on compulsory insurance or other financial security on the fleets. Furthermore, Article 7 (15) of this Convention provides that the Member States shall have the power to exclude the application of compulsory insurance for ships operating exclusively in domestic voyages (Article 7 (15) stipulates that the Member States can declare that the regulations on compulsory insurance or other financial security will not be applied to ships that navigate within their territorial sea.) [21].

In conclusion, the Bunker Convention 2001 developed a mechanism of compensation for bunker oil pollution damage. It was hoped to fill the gap that left by the other oil pollution regimes, such as the CLC and Fund Convention. Although the Bunker Convention 2001 established strict liability for the Member States, it does not uniform on the limitation of responsibility and the insurance amount, which shall be determined by the national compensation regimes. With the strict provisions on the legal liability of the shipowners, the Bunker Convention 2001 complemented the necessary measures to ensure appropriate, prompt and effective compensation for the parties who suffered bunker oil pollution damage from ships. That showed the efforts of the IMO Member States who want to unify some international rules and procedures on the determination of liability and full compensation for bunker oil pollution damage caused by ships. B. The Enforcement of the Bunker

Convention in Vietnam

Convention has officially entered into force for Vietnam since 18 September 2010.

On 11 November 2010, the Vietnam Maritime Administration issued the Official Dispatch No.2553/CHHVN-PC on Implementation of the Bunker Convention 2001 (Official Dispatch No.2553) with the following contents [22]:

Maritime Sub-Department and Port Authorities disseminate, guide and inspect Vietnam’s ships and foreign ships that arrive Vietnam’s port, ensure that strict implementation of the provisions of the Bunker Convention 2001. The shipowners proactively research, strictly comply with the Bunker Convention 2001, particularly the provisions of the insurance or financial security for civil liability to be issued certificate of insurance or financial security of civil liability for oil pollution damage caused by fuel oil.

The competent authorities research to issue certificate of insurance or financial security of civil liability for oil pollution damage caused by fuel oil and meet the content of the Convention.

Although the Vietnam Maritime Administration has the Official Dispatch No. 2553 to implement the Bunker Convention 2001, the implementation of it is still limited and difficult. One reason is the weakness of the Vietnam legal system of civil liability for oil pollution damage caused by ships. Another reason is that Vietnam does not incorporate well the contents of the Bunker Convention 2001 into national laws, namely: when compared to the Convention, the Official Dispatch No. 2553 only focuses on the procedures for issuance of insurance certificates, while other regulations have not yet incorporated into national laws, such as the responsibility of the shipowners, the limitation of liability of the shipowners. Besides, the Official Dispatch No. 2553 does not mention the limitation of liability for bunker oil pollution, while Bunker Convention 2001 doesn’t provide a clear limit amount for it. Therefore, the implementation of the Bunker Convention 2001 is facing many difficulties. Although Vietnam is facing many difficulties in the implementation of this Convention, it has created the legal basis for the Vietnam legal system of civil liability for oil pollution damage caused by ships, especially the determination of oil pollution damage caused by ships, and the provisions relating to the judgment of the foreign courts [22], provisions of time limit for oil pollution damage claims. Currently, Vietnam laws still apply the Civil Code for claiming for oil pollution damage. It is a weakness of Vietnam because of its own characteristics, the oil pollution can cause damage to wide scale, it takes time for claims, and therefore, the application of provisions of the time limit for oil pollution damage claims under the Civil Code is not appropriate.

VI. C

With the efforts of states and international organizations, a series of international conventions on oil pollution damage was issued, establishing an international legal framework for civil liability around oil pollution damage caused by ships worldwide. The above-mentioned conventions have reflected policies on civil liability for oil pollution damage caused by ships.

Firstly, the sea is a common human resource; thus, the protection of the marine environment is the responsibility of all humanity, States, and subjects that use and exploit the sea. This

principle is clearly stipulated in the UNCLOS 1982, MARPOL 73/78, and CLC, etc.

Secondly, policy for the protection of shipowners’ interests is reflected in the provisions on limitation of civil liability of the shipowners for marine environmental damage. In other words, the shipowners’ liability for compensation for oil pollution damage is limited according to the tonnage of a ship. This is clearly reflected in the CLC 1992 and the Bunker Convention 2001.

Thirdly, policy of “prevention is better than cure” is outlined in MARPOL 73/78, which stipulates measures to prevent marine pollution from ships with requirements for the design and equipment of ships, responsibilities of shipowners and captains in the implementation of regulations on the waste treatment of ships, and the responsibility of ports in receiving this waste through a waste-receiving system at the shore.

Fourthly, policy for protection of the interests of marine users is reflected in the provisions on compensation for damage to marine users affected by marine pollution. The damage shall be compensated, including property damage, environmental damage, pure economic loss, and other relevant loss.

With study and analysis, the provisions of the international conventions of oil pollution caused by ships—as well as thorough evaluation of its implementation in Vietnam—has helped us establish a better overview of the document system of international conventions of oil pollution caused by ships. We can see that Vietnam laws regarding this issue still lack many important regulations, most notably the limitation of liability of the shipowners for oil pollution damage. International conventions will play an important role in the perfection of Vietnam laws concerning oil pollution damage. Each international convention has different rules, but all the international conventions will help us to more effectively implement the civil liability for oil pollution damage caused by ships. With the purpose of improving Vietnam’s law system on oil pollution, the learned lessons proposed by the author of the article will help Vietnam to develop and complete legal documents on oil pollution such as: Law of the Sea of Vietnam; Law on Environmental Protection of Vietnam; Vietnam Maritime Code; Circular No. 23/2010/ TT-BGTVT Promulgating National Technical Regulations on the Marine Pollution Prevention System of Ships - QCVN 26:2010/BGTVT; Circular No. 33/2018/TT-BTNMT on Procedures for Remediation of Oil Spills at Sea; Decision No. 02/2013/QD-TTg to Promulgate the Regulation

on Oil Spill Response; Official Dispatch No. 2553/ CHHVN-PC on Implementation of the Bunker Convention 2001.

R

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