This article argues in favor of stricter regulation to the wash water resulting from the Exhaust Gas Cleaning System aboard ships. These systems are also known as scrubbers. The International Maritime Organization (IMO) has required the shipping industry to reduce the fuel oil sulfur limit to 0.5%, and in emission control areas to 0.1%. To achieve this reduction, ship owners use scrubbers to comply with this regulation, which essentially cleans the fuel. However, the current legal framework of scrubber wash water lacks certainty due to two reasons. The first reason is uncertainty in the law, because it is not clear from the IMO Guidelines whether scrubber wash water is considered as pollution by vessel operation under MARPOL or pollution by dumping under the London Convention. The second reason is uncertainty in science. It is also not clear whether the current levels of materials allowed to be discharged in scrubber wash water are harmful to the environment. This is demonstrated in contradictory scientific reports submitted to the IMO. This article attempts to answer two interrelated questions. First, how does the law deal with legal uncertainty? Second, how does the law deal with the questions related to scientific uncertainty? Hence, this article is divided into four main parts. The first part presents the legal problems raised regarding scrubber wash water. This includes uncertainty in the law, uncertainty in science, and how they overlap. The second part tackles the solution for uncertainty in the law. It resorts to the general rules of marine pollution and argues that pollution by dumping is the applicable regime. The third part presents a solution for the uncertainty in science from the legal perspective, which includes both policy and judicial solutions. For the policy solution, this article argues in favor of adopting the precautionary principle. As for the judicial solution, this article adopts guidance from a case decided by the International Court of Justice to set the borders between law and science. This article concludes by presenting a hypothesis for addressing the uncertainty in the law and uncertainty in science surrounding the issue of scrubber wash water and whether it is harmful to the environment.
Shams A. Al-Hajjaji,
Uncertainty in Law and Science: The International Legal Status of Scrubber Wash Water,
Ocean & Coastal L.J.
Available at: https://digitalcommons.mainelaw.maine.edu/oclj/vol27/iss1/4