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UNCLOS Regime re Pollution from Shipping

Coastal State Jurisdiction over Vessel-Source Pollution. Developments in the International Legal Framework. UNCLOS Regime re Pollution from Shipping. Found in Parts II, III, IV and XII A compromise between the interests of: Flag States Coastal States Flag States.

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UNCLOS Regime re Pollution from Shipping

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  1. Coastal State Jurisdiction over Vessel-Source Pollution. Developments in the International Legal Framework

  2. UNCLOS Regime re Pollution from Shipping Found in Parts II, III, IV and XII A compromise between the interests of: • Flag States • Coastal States • Flag States

  3. Coastal State Pollution Jurisdiction over Foreign Shipping Varies according to which zone foreign ship is in. Five zones: • Internal waters (IW) • Territorial Sea (TS) • Straits subject to transit passage (TP) and waters where archipelagic sea lanes passage (ASLP) • EEZ • Ice-covered waters

  4. Legislative jurisdiction in IW Unrestricted legislative jurisdiction except for IW where under Art. 8(2) right of IP as a result of new straight baselines (as for TS)

  5. Enforcement jurisdiction in IW • Unrestricted competence to arrest vessel in port • Unrestricted competence to arrest vessel while in passage, unless IP (same as TS)

  6. Legislative jurisdiction in TS • For vessels in IP unrestricted competence except for CDEM standards, provided does not hamper IP and is non-discriminatory (Arts. 21 and 24). May include discharge standards, use of sea lanes and TSS (Art 22),closure of areas, notification • For vessels in IP CDEM standards only if giving effect to international rules (Art. 21(2)) • For vessels not in IP (e.g. because of “wilful and serious’ pollution) unrestricted jurisdiction

  7. Enforcement jurisdiction in TS • Unrestricted competence to arrest vessel in port (Art. 220(1)) • Unrestricted competence to arrest vessel not in IP in IW or TS (Art. 220(1)) • May inspect a vessel in IP (Art. 220(2)) and may arrest it if pollution extends to coastal State or disturbs the good order on the TS (Art. 27)

  8. Legislative jurisdiction in waters where TP and ASLP • Restricted to laws that give effect to international regulations re discharges of oil and other noxious substances. Such laws must not hamper and must be non-discriminatory (Art. 42) • May designate sea lanes and TSS conforming to international regulations: it must refer them to IMO “with a view to their adoption” (Art. 41)

  9. Enforcement jurisdiction in waters where TP and ASLP • Competence to arrest ships violating national laws if they call in at a port of strait/archipelagic State • Competence to take “appropriate enforcement measures” (including arrest?) where breach of national laws if ship is “causing or threatening major damage to the marine environment of the straits” (Art. 233)

  10. Legislative jurisdiction in EEZ • Laws that conform to GAIRS (Art.211(5)) • Where latter inadequate for areas with special conditions, laws to implement international rules that IMO has made applicable to special areas, after notification to IMO and giving notice (Art. 211(6)(a)) • Plus additional national discharge or navigational standards, but not CDEM, provided IMO agrees (Art. 211(6)(c)

  11. Enforcement jurisdiction in EEZ • Unrestricted competence to arrest vessel in port (Art. 220(1)) • May require vessel suspected of breaching GAIRS to give information when in TS or EEZ (Art. 220(3)) • Where “substantial discharge causing or threatening significant pollution” and vessel has refused to give information, inspection of vessel in TS and EEZ (Art. 220(5)) • Where “discharge causing major damage or threat of major damage”, arrest vessel (Art. 220(6))

  12. Legislative jurisdiction in ice-covered waters • May enact any laws provided non-discriminatory and have due regard to navigation and protection of marine environment based on best scientific evidence

  13. Enforcement jurisdiction in ice-covered waters • Unrestricted competence to enforce laws provided non-discriminatory

  14. Discussion/challenges to UNCLOS regime Appears still to be general satisfaction with • Internal waters • Territorial sea (apart from transit by vessels carrying nuclear and other hazardous waste) • Ice-covered waters

  15. Discussion/challenges to UNCLOS regime (cont) • Straits Australia/PNG regs on compulsory pilotage through Torres Strait (2006). Compatible with UNCLOS? Malacca Straits. Currently dialogue between straits States and user States

  16. Discussion/challenges to UNCLOS regime (cont) • EEZ Post-Prestige discussion within framework of UNCLOS (INC, GA Resolutions) Post-Prestige legislation/action • France, Portugal, Spain – bans on single hull tankers over 15 years old carrying heavy fuel oil from entering EEZ

  17. Discussion/challenges to UNCLOS regime (cont) • Enforcement measures EC Directive 2005/35 on penalties for ship source pollution – unsuccessful challenge for compatibility with UNCLOS in Intertanko case Cf. also Directive 2002/59 on vessel traffic monitoring

  18. Developing UNCLOS Possible mechanisms • Formal amendment • Adoption of an implementing agreement • Agreement between limited number of parties (cf. Art. 311(3)) • Interpretation by the courts • Practice of parties in form of agreed interpretation or new rule of custom • Development through IMO . . .

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