Part I Marine Environmental Law, s.A General, 1 State Jurisdiction in Relation to the Protection and Preservation of the Marine Environment
From: The IMLI Manual on International Maritime Law: Volume III: Marine Environmental Law and International Maritime Security Law
Edited By: David Attard, Malgosia Fitzmaurice, Norman Martinez, Riyaz Hamza
- Regional co-operation — Natural resources — Marine living resources
(p. 5) 1 State Jurisdiction in Relation to the Protection and Preservation of the Marine Environment
Since it is generally agreed that jurisdiction is an aspect of sovereignty,1 State jurisdiction in relation to the protection and preservation of the marine environment denotes the competence of the State authorities under international law to regulate the activities of State organs and private individuals, natural and juridical persons alike, in the marine area. As with all allocations of State power, the notion of jurisdiction includes a geographical element: it designates the outer limits of State ‘power to make laws, decisions or rules (prescriptive jurisdiction) [and]…to take executive or judicial action in pursuance of or consequent on the making of decisions or rules (respectively enforcement or adjudicative jurisdiction)’.2 Although closely connected to sovereignty, the notion of jurisdiction does not necessarily exude any sense of exclusivity;3 it rather attempts to administer contradictory claims on the basis of commonly agreed bases of jurisdiction,4 which include the principle of territoriality, the principle of nationality, the universality principle, the protective principle, the passive personality principle.5
At first glance, these categories do not apply in the context of the Law of the Sea. The UN Convention on the Law of the Sea6 (UNCLOS) does allocate State power References(p. 6) across maritime zones with a distinct geographical emphasis. Nowhere, however, in the text of the UNCLOS may one find any reference to the traditional bases of jurisdiction; instead, the State operates in the UNCLOS context in the guise of the ‘flag State’, the ‘coastal State’, or the ‘port State’, with no definition cited anywhere. There are only two exceptions in this general approach. The first refers to a fourth player, the State of nationality of the master and crew with distinct enforcement jurisdiction under Article 97 paragraph 1 UNCLOS, the only personal jurisdiction reference in the Convention.7 The second pertains to the general, and indeed customary, obligation of the State, sans qualification, ‘to protect and preserve the marine environment’ in Part XII—which constitutes the subject of the present chapter.
In the following pages, I will attempt to navigate the jurisdictional shoals of the Convention in respect to environmental protection with a view to reconcile the inevitable fragmentation of jurisdictional powers with the common imperative that is the protection and preservation of the marine environment. In doing so, I will concentrate on the ‘hidden’ functional categorization of States rather than the spatial zoning of the Convention itself; an approach which I find both reflective of the realities in the field and more appropriate in instigating and monitoring State action.
Flag State jurisdiction is the prototype maritime jurisdiction. The flag, as the most potent symbol of State power, demonstrates urbi et orbi the existence of a direct link to the State concerned and, for generations, reflected the power of that State to the world. It is the strength of symbolism that creates the importance attached to the jurisdictional basis employed, that of nationality, and the genuine link between the two (see Section 1.1.1). The power connection, however, does not work both ways: as the ship remains a private actor, acts and omissions attached to its presence and operation in the marine environment are not automatically attributable to the References(p. 7) State and thus do not necessarily trigger the mechanism of State responsibility; rather the State maintains a general droit de regard on what remains essentially a private enterprise (see Section 1.1.2). I will address each problem in turn.
Nationality remains the typical jurisdictional basis,8 linking the individual and the State, even beyond its borders. It confers upon the person rights and obligations towards the State, ranging from a prerequisite for the full enjoyment of core human rights9 to the privilege of diplomatic protection.10 In the words of the International Court of Justice in the Nottebohm case, nationality is ‘a legal bond having in its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties’.11 Yet, in spite of the grandiloquent pronouncements, the Court has consistently affirmed jurisdiction, especially regarding corporations, on the basis of formal links, such as the place of incorporation, to the detriment of real links to their shareholders12—although the market has already set aside such case law in favour of a more realistic effective control criterion.13
The UNCLOS remained attached to this interesting fiction. Following the example of Article 5 of the 1958 Geneva Convention on the High Seas,14 Article 91 paragraph 1 UNCLOS reiterates: ‘[t]here must be a genuine link between the State and the ship.’ In fact, the qualitative attribute is reduced to a strictly formalistic procedure of registration:15 no further substantive link is ever required in an operation that is frequently carried out online while the ship in question is somewhere in the high seas with no connection whatsoever to the registry apart from the References(p. 8) will of its beneficiary owner.16 The admittedly tepid attempts to make the connection real, taking into account participation in ownership or even in the manning of the ship, came to naught, as exemplified in the failed 1986 UN Convention on Conditions for Registration of Ships.17
Interestingly enough, and in spite of the effective reversal of the ICJ case law in recent times,18 the International Tribunal on the Law of the Sea (ITLOS) chose to maintain the fiction rather than venture into uncharted waters.19 The Tribunal has consistently reiterated the need for a (nominal) genuine link in the 1999 Saiga (No 2) case,20 to the 2001 Grand Prince case,21 to the 2013 Louisa case,22 in spite of equally consistent efforts by some of its members to remind all concerned of the need to invest the ‘empty shell’,23 the ‘artificial creation’24 with substance. Indeed, it went one step further arguing that the need for a genuine link constitutes a guarantee for the effective implementation of the duties of the flag State,25 the ubiquitous example of substandard shipping26 notwithstanding. Suffice it to state that the Tribunal is not alone in this reading: Within the context of the European Union, the European Court of Justice was equally happy to detect a ‘real financial References(p. 9) link’27 with the flag State in the act of registration and thus consider it in conformity with both the UNCLOS and the 1986 UN Registration Convention. The distinction between the substantive and formal nationality seems to be relevant only in judicial28 and quasi-judicial29 formations pertaining to global and peripheral international systems of human rights protection.
If registration were sufficient to establish a genuine link with the flag State and thus accord to the ship the protection of the State, one would be justified to expect that said State would also flex its jurisdictional muscles and secure the enforcement of all kinds of obligations accruing upon the ship, including environmental ones. Indeed, the core of this obligation may be detected in Article 94 UNCLOS, according to which ‘[e]very State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag’30 and ‘is required to conform to generally accepted international regulations, procedures and practices and to take any steps which may be necessary to secure their observance’,31 including ‘the applicable international regulations concerning…, the prevention, reduction and control of marine pollution…’.32 Such regulations include provisions pertaining to maritime labour33 or technical specifications required with a view to secure the seaworthiness of vessels at sea, thus ensuring protection of human life and the marine environment at the same time. In its first ever advisory opinion by the full bench,34 ITLOS reiterated that this obligation extends to cases of illegal, unreported, and unregulated (IUU) fishing activities35 and expressly linked enforcement jurisdiction for such fishing activities to the duty to cooperate in the prevention of pollution to the marine environment.36
References(p. 10) An interesting category of rules, addressed to flag States but with a spatial parameter, are to be found in the Special Areas designated under the 1973/1978 MARPOL Convention.37 The designation of such areas in large parts of the high seas, exclusive economic zones, or even territorial seas where particular oceanographic and ecologic conditions prevail among heavy sea traffic generates special discharge standards for oil,38 noxious liquid substances,39 sewage,40 garbage,41 and sulphur oxide emissions42 under the respective MARPOL Annexes.
The same principle applies to the establishment of marine protected areas in the high seas. Absent the territorial jurisdiction of the State, effective enforcement of the protective measures within the area and ultimately respect for the area itself is necessarily entrusted to the flag jurisdiction of States, which thus would acquiesce to the restriction of their freedom of navigation in the high seas for the benefit of the international community as a whole.43
One could argue that the existence of Article 94 UNCLOS would have sufficed to set out the full array of duties and obligations accruing upon the flag State under not only the Law of the Sea but also all other ‘applicable international regulations’ (as opposed to just national ones). Indeed, with a nod to the wide expanse of the open seas, Article 94 paragraph 6 includes an optional notification procedure, whereby ‘[a] State which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised may report the facts to the flag State. Upon receiving such a report, the flag State shall References(p. 11) investigate the matter and, if appropriate, take any action necessary to remedy the situation’.44
Needless to say, this potentially all-encompassing piece of legal drafting remains an exercise in frustration. There is no effective way to force a flag State remiss in his duty of vigilance to take action in spite of the complementary provisions of Article 217 UNCLOS, which direct the flag State to do exactly that ‘for the prevention, reduction and control of pollution’.45 Indeed, the flag State may be prompted ‘at the written request’46 of any State to exercise such enforcement powers and promptly inform on the outcome both the State in question and the IMO.47 And yet, in spite of the Convention having taken such pains to further reinforce the traditional enforcement powers of the flag State,48 the final results remain at best meagre. Nor does the complicated procedure of State responsibility appear adequate.49 It is very interesting to note that although Article 297 paragraph 1 UNCLOS explicitly subjects to the compulsory dispute settlement procedure disputes arising from an alleged breach of ‘specified international rules and standards for the protection and preservation of the marine environment, which are applicable to the coastal State, and which have been established by this Convention or through a competent international organization or diplomatic conference in accordance with this Convention’,50 no such dispute has yet been forthcoming. Nor is there any discernible race to resort to a request for provisional measures before the competent court or tribunal ‘to prevent serious harm to the marine environment, pending the final decision’.51 So far ITLOS tends to be rather comprehensive on the grounds it employed for such provisional measures, routinely quoting both the need to preserve the respective rights of the parties and avoid serious environmental harm52 while interpreting the notion of References(p. 12) ‘environment harm’ in the wider possible terms to also include the conservation of the living resources of the seas.53
The deficiency becomes even greater considering that the applicable rules comprise not only the broad normative rules included in Part XII of the Convention but also all international rules and standards adopted by the competent international organizations. This incorporation by reference,54 so as to extend the scope of standard-setting provisions and thus encompass all available environmental protection rules, transforms the UNCLOS from a usual conventional instrument to the comprehensive constitution of the oceans it was designed to be.55
Effective compliance is sought through the expansion of the powers of the coastal State or the enforcement jurisdiction of the port State; and attempts by the IMO to use the carrot-and-stick approach, offering technical assistance to those (few) willing but unable to do so through a voluntary audit scheme, whereby it seeks to establish the degree of effective implementation by its member States of the conventional standards set out in IMO legal instruments.
It is interesting to note, however, that although operations at sea, be they related to maritime trade or energy-generation or the harvesting of natural resources, are almost exclusively conducted by the private sector, the primary burden of supervision and consequently responsibility and liability for environmental harm remains with the flag State. This is a concept lurking behind the archetypal tripartite-tiered system of liability in both the Civil Liability and the Fund Conventions56—and reflected in the general system proposed by the International Law Committee in its 2006 Principles on the allocation of loss in the case of transboundary harm arising References(p. 13) out of hazardous activities57—which assigns residual liability to the State of origin when both the operator and the industry have exhausted their respective capacity to compensate for damage caused. It is an acknowledgement of the ultimate responsibility of the State to ensure that all measures are in place to prevent a polluting incident from happening and, should such an occurrence materialize, to make certain that all relevant compensation schemes are in place and properly functioning—and then to shoulder any excess liability itself. This obligation of due diligence, best defined by the ITLOS Seabed Disputes Chamber in its advisory opinion on the Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area58 and by the ICJ in its 2011 judgment in the Pulp mills in the River Uruguay case,59 confirms the position of the State as the final arbiter of all such activities and, in a wider context, reinforces the State-centred concept of international law.60
From the early stages of its long-winded saga on the delimitation of maritime areas, the ICJ chose to clarify the fundamentals: ‘…the land is the legal source of the power which a State may exercise over territorial extensions to seaward…’.61 It was nothing more that the affirmation of the long-held principle that the jurisdiction of the coastal State over maritime areas remains the projection of State sovereignty over the sea. The multiplicity of maritime zones is also reflected in the form References(p. 14) of jurisdiction exercised by the State, from the full sovereignty over the territorial sea to the sovereign rights enjoyed in the EEZ. Nevertheless, the affirmation of State power within the prescribed limits (see Section 1.2.1) does not preclude further, often unilateral, attempts not to affirm its already established jurisdiction but rather to exclude other users of the seas (see Section 1.2.2).
Having its foundations on the enforcement powers of the State itself, coastal State jurisdiction is by definition the strongest manifestation of the will of the coastal State. Yet it is not uniform: it follows the gradual diminution of State powers the further one moves away from the seashore and adjusts its manifestations to the duties and responsibilities assigned to the coastal State in the numerous maritime zones created by the UNCLOS and customary law.
The full extent of State power is naturally displayed in the territorial sea, where the only concession to the other users of the sea is the traditional right of innocent passage.62 And yet even this exception is eliminated in cases of ‘wilful and serious pollution’.63 Truth be told, the formulation of wilful and serious pollution generated while a ship merrily proceeds in innocent passage is nowadays obsolete. The contemporary technical requirements for the building of ships do not practically allow for such operational pollution. The serious impact envisaged is usually the result of a major maritime accident, when, however, the vessel is usually incapacitated and thus innocent passage disappears not due to the pollution generated but because passage ‘continuous and expeditious’64 is no more.
The required balance between the different uses of the sea is further guaranteed in the limitation imposed upon the prescriptive jurisdiction of the coastal State not to adopt laws and regulations on ‘the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof’,65 which may exceed the international framework created by the UNCLOS and other rules of international law and may eventually hamper the right of innocent passage.66 The determination of conformity is by no means automatic or even easy: the provisions of Directive 2005/35/EC concerning ship-source pollution and the introduction of penalties for infringements,67 whereby pollution is also to be criminalized in the domestic legal order of the EU member States when committed ‘recklessly or by serious negligence’, at first glance going beyond the ‘wilful’ References(p. 15) standard of the Convention,68 generated a veritable judicial battle before the European Court of Justice69—and beyond.70
In this context, there is further gradation in the type of limitations inbuilt in the Convention. The UNCLOS makes specific provision for the movement of nuclear ships in innocent passage through the territorial sea,71 due to their potential for catastrophic pollution: it did not prevent the interested States from engaging in long debates and much sabre-rattling.72 A step further from the limited exercise of the right to prescribe environmental laws and regulations, Article 21 paragraph 2 UNCLOS moves on to the direct prohibition of legislating on matters relevant to the design, construction, manning, and equipment (CDEMs) of foreign ships in an obvious attempt to prohibit unilateral actions in perhaps the only truly international market. Confrontation again threatened when, in the aftermath of the Erika and the Prestige disasters,73 the European Union moved with the adoption of Regulation 1726/2003 to exclude from its ports and also all European waters in general all single-hull vessels,74 in blatant disrespect of the UNCLOS CDEMs exception. A compromise was eventually achieved with the EU member States successfully pursuing through the IMO the adoption in 2003 of new CDEM References(p. 16) standards, whereby all transport of heavy-grade oil by single-hull tankers would have ceased with immediate effect whereas fifteen-year-old single-hull tankers carrying lighter types of fuel would be subjected to a rigorous Condition Assessment Scheme (CAS) before being totally phased out in 2015.75
International law requires that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea, as they do in other areas of international law.79
The Convention itself provides for a long list of safeguards: any enforcement action would not expose the marine environment to an unreasonable risk;80 no vessel would be delayed longer than essential;81 physical inspection is to be carried References(p. 17) out only when the relevant certificates are inadequate or altogether missing;82 release would be promptly available subject to reasonable procedures such as bonding,83 unless it would present ‘an unreasonable threat of damage to the marine environment’.84 The reasonableness of the bond required is often an essential element of the prompt release of vessels and crews procedure under Article 292 UNCLOS.85
It would be wrong, however, to consider that under all circumstances the coastal State action remains dependent upon the level of protection or even the existence of international regulation. The most important source of marine pollution nowadays is that generated from land-based sources: prescriptive jurisdiction, however, remains firmly within the domaine réservé of the coastal State, which is bound to take into account internationally agreed rules, standards and recommended practices and procedures86 and is invited to harmonize policies (but not laws and regulations) at the regional level.87 The minimum provisions of the Convention have long been superseded in regional practice.88 One of the best cases, but still with meagre results, is the Mediterranean Sea, where the revamped 1996 Syracuse Protocol for the protection of the Mediterranean Sea against pollution from land-based sources and activities (LBS Protocol)89 serves as the framework for a detailed network of regional action plans90 and pollution hotspots and, combined with the holistic approach adopted in the 2008 Protocol on Integrated Coastal Zone Management in the Mediterranean (ICZM Protocol),91 attempts to rehabilitate one of the most heavily polluted coastlines in the world.
The coastal State also has a free hand in adopting laws and regulations to prevent, reduce and control pollution from seabed activities and artificial installations References(p. 18) within its jurisdiction92 as well as deal with dumping activities;93 in both cases, however, national laws, regulations, and measures shall be no less effective than global rules and standards.94 In actual fact, the regulation of dumping has been totally overhauled since the adoption of the Convention, mostly due to the elimination of the practice (with some pernicious exceptions) as the garbage destined for dumping has been converted to recyclable material and then to a tool for climate change mitigation.95
The changing situation in the offshore industry is no less dramatic: there is now in Europe a comprehensive regional corpus of regulation for the prevention of pollution from offshore installations, the first time ever that the coastal States have accepted any kind of restriction imposed on their unfettered power to decide on the management of their energy sources: Directive 2013/30/EU on safety of offshore oil and gas operations96 offers the first ever attempt at an international instrument that would cover the complete life-cycle of offshore platforms from their placement to the licensing of operations and eventually to decommissioning97 and is complemented by the 1995 Madrid Protocol for the protection of the Mediterranean Sea against pollution resulting from exploration and exploitation of the continental shelf and the seabed and its subsoil,98 thus encompassing the wider expanse of European waters and both sides of the Mediterranean. The final package involved as usual a compromise and a political commitment: The legislative format employed was that of directive, leaving significant leeway to the EU member States to act, rather than the rigid conformity of a regulation; and the industry (admittedly limited in number of companies) undertook the obligation to apply the European standards to all their operations worldwide, thus effectively References(p. 19) converting a regional instrument into a global rule. It is worth noting, however, that the Directive does not cover offshore renewable energy facilities, the regulation of which would inevitably fall back into the full discretion of the coastal State and the general obligations it has under general environmental law.99
The obligation to protect and preserve the marine environment extends beyond the territorial sea into the Exclusive Economic Zone, where the coastal State enjoys sovereign rights for the exploration, exploitation, conservation and management of its natural resources and exercises jurisdiction, inter alia, for the protection and preservation of the marine environment.100 In line with the diminishing power of the State the further away from the coast one gets, the enforcement jurisdiction of the State is equally reduced: it remains in principle a request for information about the vessel and examination of documents, mostly on its identity and port of registry, its last and next port of call, so as to establish whether a violation has actually occurred.101 Physical inspection is possible only when there are ‘clear grounds for believing’102 that there has been a violation in the EEZ ‘resulting in a substantial discharge causing or threatening significant pollution of the marine environment’103 and, in an escalating progress, the coastal State may institute proceedings and detain the vessel only when there is ‘clear objective evidence’104 that the violation committed in the EEZ has resulted ‘in a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal State or to any resources’.105
This graduated approach to coastal State intervention reflects the obligation incumbent upon it to have ‘due regard’ to the rights and duties of other States therein while exercising its rights and performing its duties under the Convention. Quite where lies this unique point of balance and indeed whether the obligation to prevent marine pollution106 might lead to the complete annihilation of other rights, including the traditional freedom of navigation, remains an open question. The Convention does allow in principle severe restrictions imposed on the rights of navigation within a specific area of the EEZ for environmental protection purposes in at least two cases.
References(p. 20) The first applies to ice-covered areas and authorizes the coastal State to unilaterally adopt and enforce non-discriminatory legislation where the climate circumstances are such that ‘pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance’.107
The second involves a much more complicated exercise: Under Article 211 UNCLOS, the coastal State may initiate the cordoning-off of a specific area within its EEZ ‘[w]here the international rules and standards…area inadequate to meet special circumstances’108 and it has ‘reasonable grounds for believing that a particular clearly, defined area…is an area where the adoption of special mandatory measures for the prevention of pollution from vessels is required for recognized technical reasons in relation to its oceanographical and ecological conditions, as well as its utilization or the protection of its resources and the particular character of its traffic’;109 then a final decision on the subject must be made by the competent international organization, the IMO, within 12 months after receiving such a communication.110 Were the IMO to approve the request, the coastal State may adopt rules and regulations ‘for the prevention, reduction and control of pollution from vessels implementing such international rules and standards or navigational practices as are made available through the Organization for special areas’,111 which then would come into force fifteen months after the submission of the communication to the organization. Should the coastal State wish to adopt additional rules and regulations, excluding CDEMs, then these must be submitted for approval to the organization along with the original communication and will become applicable fifteen months after said submission, provided the organization so decides within twelve months after the submission of the communication.112 If there is indeed an urgent need for environmental action to be taken, this is hardly the method to go about it. It comes as no surprise that this cumbersome mechanism has never been used.
The principle of restricting access to a specific area within the EEZ, however, remained valid and has given rise to two variations: marine protected areas and ecological zones. The first species was initially encountered in regional environmental treaties, where the contracting coastal States in the exercise of their jurisdiction over their maritime zones decided to mutually exclude from navigation or other uses of the seas certain vulnerable areas under their jurisdiction and control, References(p. 21) and has since migrated towards the high seas. Clearly in such circumstances the self-restraint foundation of MPAs disappears and the question of pacta tertii comes to fore.113 The current attempt to create such areas in the high seas seeks both a legal basis and a moral justification under the coverage of international organizations, very much along the lines set out in the Convention. In a pioneer but, I suspect, soon to be typical example Portugal had the Altair Sea Mount recognized as a high seas protected area under the OSPAR Convention for the Protection of the marine environment of the North-East Atlantic and then as a protected area within national jurisdiction on the basis of its claim on an extended continental shelf before the UN Commission on the Limits of the Continental Shelf (CLCS).114 This approach essentially separates the status of the waters above from that of the seabed below115 and, through recourse to an international organization, avoids the requirement of direct consent by the interested States that has beleaguered such attempts under the 1995 Barcelona Protocol concerning Specially Protected Areas and Biological Diversity in the Mediterranean.116 The joint application required by the neighbouring States concerned117 has stumbled on the underlying mistrust pervasive in the area: no Special Protected Area of Mediterranean Importance (SPAMI) has been proclaimed in the high seas, with the notable exception of the Pelagos Sanctuary for Mediterranean Marine Mammals created in 1999 by a treaty between France, Italy and Monaco and then registered in the SPAMI list.118
The individual consensual basis is further removed—if not altogether remote—in the designation by the IMO of Particularly Sensitive Sea Areas (PSSAs), with no References(p. 22) specific legal basis but rather as a precautionary response in any ‘area that needs special protection through action by the IMO because of its significance for recognized ecological, socio-economic or scientific attributes, where such attributes may be vulnerable to damage by international shipping activities’. The 2005 Revised Guidelines for the identification and designation of PSSAs119 trigger in effect a cluster of protective provisions under IMO instruments and follow the two-stage approach already present in Article 211 paragraph 6 UNCLOS. During the first step the coastal State is called upon to present its case on the vulnerability of the area proposed,120 including a buffer zone around the core area,121 and the risk posed by international shipping whereas the final designation is dependent upon the adoption of several categories of ‘Associated Protective Measures’ (APM)122 with an ‘identified legal basis’123 in any relevant IMO instrument as well as the UNCLOS, in essence further developing the environmental protection framework of the Convention. The impressive list of PSSAs in both areas under national jurisdiction and in the high seas124 testifies to the continuing success of this evolving and flexible institution.
The second category moves towards a different direction: rather than interjecting the collective will of an international organization before the express consent of each of the States concerned, the declaration of ecological zones constitutes the triumph of unilateralism. Yet another example of the wave of reactions to the Prestige accident, the concept is based on two assumptions. The first assumes that the institution of the EEZ as set out in the UNCLOS is but the full manifestation of a multi-functional maritime zone, the specific parameters of which both in width and in content depend entirely upon the discretion of the coastal State.125 The second relies on the enforcement jurisdiction accorded to the coastal State by the Convention, as supplemented by the ‘generally accepted international rules and References(p. 23) standards’ of Article 211 UNCLOS. At least that was in essence the argument put forward by France when it established in 2003 a ‘zone de protection écologique’ applicable in both the Atlantic and Mediterranean waters,126 as a ‘déclinaison’127 of its already existing EEZ in the Atlantic waters. In that zone, France would exercise domestic laws and regulations and ‘en outre les compétences reconnues par le droit international relatives à la protection et à la préservation du milieu marin’, including over ‘navires…étrangers même immatriculés dans un territoire relevant d’un gouvernement non partie à la Convention [MARPOL]’.128
Along the same lines followed Italy with the proclamation of a ‘zona di protezione ecologica’,129 which serves both as a zone of environmental protection and as an archaeological protection zone as per Article 303 UNCLOS and the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage.130 The Italian zone does not apply in the Adriatic and the Ionian seas131 but the waters of the eastern Adriatic are the scene for other acts of political theatre: Croatia instituted in 2003 an Ecological Protection Zone, the application of which for EU member States has since twice postponed (taking functionality to another level… );132 whereas the Slovenian Ecological Protection Zone133 overlaps in its References(p. 24) entirety the Croatian one and is naturally strongly contested. It is clear that in the quest for the balance of interests between the users of the sea mandated by the UNCLOS, the theory and practice of unilateral action remains a potent yet unwieldy weapon at the hands of the coastal State.
In traditional terms the jurisdiction of the port State coincides largely with that of the coastal State for a port State is always a coastal State. It would have been entirely appropriate not to distinguish between the two but the inescapable fact that although a vessel may come under the jurisdiction of the coastal State as a result of navigating the high seas, submission to the jurisdiction of the port State assumes at all times that it has entered voluntarily into the port and thus has acquiesced to its jurisdiction.134 The UNCLOS has acknowledged the peculiarities of port State jurisdiction in a twofold manner: In addition to the traditional coastal State powers, it granted specific enforcement rights and duties to the port State in environmental matters, which in effect create an additional basis of jurisdiction, complementary to that of the flag State (see Section 1.3.1); and further it reinforced the authority of the flag State to set the terms and conditions whereby foreign vessels may be accepted in its ports and thus paved the way for their cooperation in furthering their respective enforcement powers (See Section 1.3.2).
The creation of a separate port State jurisdiction was understood as a necessary concomitant to the expansion of the coastal State’s jurisdiction over the Exclusive Economic Zone, especially in view of the obligations for the protection and preservation of the marine environment to be exercised therein.135 Given the vast marine areas that came inevitably under the purview of the coastal State and with a realistic assessment of its (in)capacity to effectively enforce its rules and regulations, the Convention gave to the port State the power to undertake enforcement action ‘in respect of any discharge from [a] vessel outside the internal waters, territorial sea and exclusive economic zone of that State in violation of applicable international rules and standards established through the competent international References(p. 25) organization or general diplomatic conference’,136 provided that ‘the violation has cause or is likely to cause pollution in the internal waters, territorial sea or exclusive economic zone of the State instituting the proceedings’.137 There is nothing novel in this approach: it is a typical exercise of coastal State powers, presumably with the consent of the flag State since the vessel chose to enter the port out of its own volition. Indeed, MARPOL has already given to the port State enforcement powers regarding inspection of certificates138 and reporting and prosecution ‘for the purpose of verifying whether the ship has discharged any harmful substances in violation of the provisions of the Regulations’.139 Priority, however, is accorded at all times to the flag State, which is called upon to act on the basis of such findings by the port State. The MARPOL Convention itself does not provide for any deviation from the traditional allocation of jurisdictional powers as set out in general international law and the UNCLOS.140 The powers given to the port State could well be found on the obligation under Article 6 paragraph 1 MARPOL to ‘cooperate in the detection of violations and the enforcement of the provisions of the present Convention, using all appropriate and practicable measures of detection and environmental monitoring, adequate procedures for reporting and accumulation of evidence;’ in other words, an extension of State sovereignty essentially complementary to that of the flag State.
In addition—and therein lies the innovation—the port State may exercise enforcement jurisdiction in respect of discharges in the internal waters, territorial sea, or exclusive economic zone of another State, at the request of that State, the flag State, or a third State damaged or threatened by the discharge violation.141 It is to a certain extent a delegation of power by the flag State or the coastal State concerned, a form of universal jurisdiction of the aut dedere aut iudicare variety. Inevitably, the empowerment of the port State is hedged in with safeguards in respect of the original jurisdictions. The port State may transfer the file to the coastal State concerned and any proceedings are to be suspended at the request of the coastal State victim of pollution.142 The flag State has priority in prosecuting such cases and thus proceedings already instituted by the port State would be suspended ‘upon the taking of proceedings by the flag State within six months of the date on which the proceedings were first instituted’,143 unless the pollution damage to the References(p. 26) coastal State was so major so as to maintain its priority claim;144 or ‘the flag State in question has repeatedly disregarded its obligation to enforce effectively the applicable international rules and standards in respect of violations committed by its vessels’,145 the only possible sanction in case of breach of the Article 94 UNCLOS obligations of the flag State.146
The essential element in this construction remains the permissive, not mandatory nature of port State jurisdiction. The Convention may authorize the port State to act as the neighbourhood constable, dispensing common sense and the rule of law, but this ability remains completely discretionary. There is nothing that would impose upon the port State the obligation to carry out such duties, to act as the conscience of the international community for the protection and preservation of the marine environment. In practice, certain States in specific areas of the world consider it politic to avail themselves of these powers albeit always with emphasis on the voluntary character of the duties thus undertaken. Equally, there is no question that the enforcement potential of this jurisdiction is immense and may indeed be pivotal in the evolution of environmental protection under the UNCLOS.147
The territorial sovereignty of the port State is fully respected by the UNCLOS as ports are to be found in the internal waters and thus are treated as land. Consequently, the sovereign powers of the coastal State are not to be restricted in any shape or form, as it happens with the innocent passage exception in the territorial sea. Nor is there any obligation for the State to accept foreign vessels in its ports without a prior conventional undertaking to that effect,148 in spite of traditional references to ius communicationis.149 There is no reference to the wider rule but the implication is clear in Article 211 paragraph 3 UNCLOS: the port State is presumed to ‘establish particular requirements for the prevention, reduction and control of pollution of the marine environment as a condition for the entry of foreign vessels into their ports or internal waters or for a call at their offshore terminals’.
Moreover, the port State is expressly obligated by the Convention not to allow a vessel to proceed once it has been ascertained that it ‘is in violation of applicable References(p. 27) international rules and standards relating to seaworthiness of vessels and thereby threatens damage to the marine environment’.150 The combination of absolute State discretion and the obligation to uphold international standards has converted the port State to the primary control point for all vessels entering its ports. The control obligation was initially perceived as complementary to that of the flag State (shades of MARPOL lingering…) and indeed the latter is to be notified ‘promptly’ of any action related to its vessel151 but clearly it has taken on over the years a life of its own. Port State control has developed into perhaps the most effective tool for environmental compliance available today:152 starting as a rather non-offensive list of technical requirements, it has expanded onto the ‘human element’ in international shipping and affects the whole operation of the ship.153 The IMO and the International Labour Organization have since come together to establish guidelines for inspections relating to labour rights154 whereas the World Health Organization has added its own health regulations155 into the mix. The effectiveness of the system has recommended its expansion to other areas of interest as well, especially in the fishing sector where it has developed into the primary tool to combat IUU fishing;156 or as a cultural protection tool, under the 2001 UNESCO Underwater Cultural Convention, which prohibits the use of the territory of States parties, ‘including their maritime ports’, ‘in support of any activity directed at underwater cultural heritage which is not in conformity with this Convention’.157
The effectiveness of the system has been further enhanced by regional agreements not at the port State level but rather at the port authorities level. As a result, the References(p. 28) Memoranda of Understanding (MoUs) instituting port State control cooperation procedures do not usually constitute international treaties; rather they operate on the sub-statal level coordinating administrative procedures and ensuring both that the quality of the controls performed in different ports around the world remains comparable and that there is a level playing field in the port services market.158 Starting with the 1982 Paris Memorandum of Understanding,159 which brought together the port authorities of twenty-seven European States, the method has proliferated to cover the Asian and Pacific waters (Tokyo MoU),160 the Latin American waters (Acuerdo de Viña del Mar),161 the wider Caribbean area (Caribbean MoU),162 the Atlantic waters in West and Central Africa (Abuja MoU),163 the Black Sea region (Black Sea MoU),164 the southern waters of the Mediterranean (Mediterranean MoU),165 the Indian Ocean (Indian Ocean MoU),166 and the wider Gulf area (Riyadh MoU).167 Most of these agreements remain voluntary undertakings although the coordinating efforts of the IMO have often imbibed them with a regulatory aspect as well. The conversion from an informal arrangement into a binding agreement is particularly striking in the European waters, where the procedures agreed under the Paris MoU are regularly incorporated into EU Directives and thus become endowed with the full regulatory and enforcement powers of the European Union. The latest instalment comprises Directive 2009/16/EC,168 applicable since 1 January 2011, as already amended by Directive References(p. 29) 2013/38/EU169 to include enforcement of the ILO 2006 Maritime Labour Convention, supervised by the European Maritime Safety Agency (EMSA).170
The strongest element of IMO involvement, however, is seen in practice as the different regional mechanisms come together to run coordinated campaigns on particular issues, eg currently a Concentrated Inspection Campaign (CIC) on STCW hours of rest, thus effectively overcoming the limitations of partial regulation in only some selected or even privileged parts of the world. To a certain extent, both the concept and the performance of MOUs accurately reflect the apportionment of jurisdictional powers at sea: those willing to make it work would find powerful tools within the UNCLOS system, as it has developed over the years; those unwilling to act continue to rely on the relative inability of the system to effectively supervise its rules and regulations and impose meaningful sanctions. At any rate, the UNCLOS continues to evolve and adjust and adapt to new exigencies as all living instruments do.References(p. 30)
1 A Mann, ‘The doctrine of international jurisdiction revisited after twenty years’ (1984) 196 RCADI III, 9-116, 20; C Staker, ‘Jurisdiction’ in MD Evans (ed.), International Law (4th edn, Oxford University Press, 2014) 309–35.
3 Crawford (n. 2) 457.
5 As enumerated in the ‘Introductory Comment to the Harvard Research Draft Convention on Jurisdiction with Respect to Crime’ (1935) 29 AJIL, Spec. Suppl., 443; although it considered the last one of questionable permissibility (at 579).
7 Note, however, that the human rights aspect of the Convention is further reinforced in the novel prompt release mechanism of the master and crew of arrested vessels under Art. 292 UNCLOS. In spite of its very limited scope, the mechanism has been proven successful, encompassing more than half the cases presented before the International Tribunal on the Law of the Sea. For an overview see J Akl, ‘Jurisprudence of the International Tribunal for the Law of the Sea in prompt release proceedings’ in H Hestermeyer et al (eds), Coexistence, Cooperation and solidarity: Liber amicorum Rüdiger Wolfrum (Martinus Nijhoff, 2012) vol. 2, 1591–1624; S Trevisanut, ‘The exercise of administrative functions by ITLOS: A comment on prompt release cases’ in N Boschiero et al (eds), International Courts and the Development of International Law: Essays in Honour of Tullio Treves (Asser Press, 2013) 311–23; T Mensah, ‘The Tribunal and the prompt release of vessels’ (2007) 22 TIJMCL 425–50; AG Oude Elferink, ‘The Arctic Sunrise incident: A multi-faceted Law of the Sea case with a human rights dimension’ (2014) 29 TIJMCL 244–89.
8 A Annoni and S Forlati (eds), The Changing Role of Nationality in International Law (Routledge, 2013); JF Rezek, ‘Le droit international de la nationalité’ (1986) 198 RCADI III, 333–400; RD Sloane, ‘Breaking the genuine link: The contemporary international regulation of nationality’ (2009) 50 Harvard ILJ 1–60.
9 S Forlati, ‘Nationality as a human right’ in Annoni and Forlati (n. 8) 18–36.
10 A Vermeer-Künzli, ‘Nationality and diplomatic protection: A reappraisal’ in Annoni and Forlati (n. 8) 76–95.
12 Case concerning the Barcelona Traction, Light and Power Company Limited, (Belgium v Spain), Second Phase,  ICJ Reports 3, 42; Elettronica Sicula SpA (ELSI) (USA v Italy) (1989) ICJ Reports 15, available at <http://www.icj-cij.org>. See also R Churchill (with C Hedley), The meaning of the ‘genuine link’ requirement in relation to the nationality of ships, A study prepared for the International Transport Workers’ Federation, October 2000.
13 G d’Agnone, ‘Determining the nationality of companies in ICSID arbitration’ in Annoni and Forlati (n. 8) 153–68; B Stern, ‘La protection diplomatique des investissements internationaux. De Barcelona Traction à Elettronica Sicula ou les glissements progressifs de l’analyse’ (1990) JDI 897–948.
17 UN Convention on Conditions for Registration of Ships (1987) 26 ILM 1229–50; G Kasoulides, ‘The 1986 UN Convention on the Conditions for the Registration of Vessels and the question of open registry’ (1989) 20 ODIL 543–76; H Wefers Bettink, ‘Open registry, the genuine link and the 1986 Convention on Registration Condition for Ship’ (1987) 18 Netherlands YBIL, 68–119.
18 CH Schreuer, ‘Nationality of investors: Legitimate restrictions v. Business interests’ (2010) 24 ICSID Review-Foreign Investment LJ 521–7; D D’Allaire, ‘The nationality rules under the Energy Charter Treaty: Practical considerations’ (2009) 10 The Journal of World Investment and Trade 39–68.
19 V Lowe, ‘The “complementary role” of ITLOS in the development of ocean law’ in H Schreiber and J-H Paik (eds), Regions, institutions and the Law of the Sea: Studies in Ocean Governance (Martinus Nijhoff, 2013) 29–36.
20 The M/V Saiga (No. 2) case (Saint Vincent & The Grenadines v Guinea, 1999), Judgment, 1 July 1999,  ITLOS Reports 10, para. 65, available at <http://www.ilos.org> (accessed 12 August 2014); David Anderson, ‘Freedoms of the high seas in the modern law of the sea’ in D Freestone, R Barnes, and D Ong (eds), The Law of the Sea. Progress and prospects (Oxford University Press, 2006) 327–46, 332–40.
21 The Grand Prince (Belize v France, 2001), Judgment 20 April 2001, ITLOS, available at www.itlos.org (accessed 12 August 2014); T Treves, ‘Flags of convenience before the Law of the Sea Tribunal’ (2004) 6San Diego ILJ 179–89.
22 The M/V Louisa case (St. Vincent v Spain, 2013), Judgment 28 May 2013, ITLOS, Individual Opinion of Judge Ndiaye, para. 124, available at <http://www.itlos.org> (accessed 12 August 2014); S Solomon, ‘The case of Bolivia v Chile in an era of transforming sovereignty’ (2013) 25 Florida JIL 332–57, 346.
26 Defined as ‘A vessel that, through its physical condition, its operation or activities of its crew, fails to meet basic standards of seaworthiness and thereby poses a threat to life and/or the environment’; OECD Maritime Transport Committee, Policy Statement on Substandard Shipping, 2002; available at <http://www.oecd.org/dataoecd/18/37/2080990.pdf> (my emphasis); T Mensah, ‘Flags of convenience: Problems and promises’ in MQ Mejia, Jr. (ed.), Selected issues in Maritime Law and Policy: Liber Amicorum Proshanto K. Mukherjee (Nova Science, New York, 2013) 25–52.
27 Case C-62/96 Commission v Greece (ECJ, 27 November 1997), point 22, available at <http://www.curia.eu> (accessed 12 August 2014).
28 Beldjoudi et al v France (ECtHR, 26 March 1992), available at www.hudoc.echr.coe.int (accessed 12 August 2014).
29 Stewart v Canada (UN Human Rights Committee, 1 November 1996), UN Doc. CCPR/C/58/D/538/1993, available at <http://www.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=8&Doc TypeID=17> (accessed 12 August 2014).
33 M McConnell, ‘Forging or foregoing the “genuine link”? A reflection on the Maritime Labour Convention, 2006 and other approaches’ in A Chircop et al (eds), The Regulation of International Shipping: International and Comparative Perspectives: Essays in Honour of Edgar Gold (Martinus Nijhoff, 2013) 401–25.
34 Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC), ITLOS, available at <http://www.itlos.org> (accessed 11 June 2015).
36 Request for an advisory opinion submitted by the SRFC, Order of 14 April, para. 140; see also The MOX Plant case (Ireland v United Kingdom), Provisional Measures, Order of 3 December 2001, ITLOS, para. 82.
38 MARPOL 73/78, Annex I, Prevention of pollution by oil. Such areas include the Mediterranean Sea, the Baltic Sea, the Black Sea, the Gulfs area, the Antarctic area, the North-West European waters, and the Southern South Africa waters whereas designated areas in the Red Sea, the Gulf of Eden, and the Sea of Oman are not operational due to the lack of reception facilities in the neighbouring coastal States; a complete list is available at <http://www.imo.org/OurWork/Environment/PollutionPrevention/SpecialAreasUnder MARPOL/Pages> (accessed 12 August 2014).
39 MARPOL 73/78, Annex II, Control of pollution by noxious liquid substances. The Antarctic area was designated in 1992 and became operative in 1994 (see list, n. 38).
40 MARPOL 73/78, Annex IV, Sewage. Although designated since 2011, the Baltic Sea area awaits confirmation by the bordering States that they have in place adequate reception facilities (see list, n. 38).
41 MARPOL 73/78, Annex V, Garbage. Such areas include the Mediterranean Sea, the Baltic Sea, the Gulfs area, the North Sea, the Antarctic area, and the Wider Caribbean region, including the Gulf of Mexico and the Caribbean Sea, while the Black Sea and the Red Sea areas still remain inoperative (see list, n. 38).
42 MARPOL 73/78, Annex VI, Prevention of air pollution by ships. Such Emission Control Areas (ECA) may be found (with different emission specifications) in the Baltic Sea, the North Sea, the North American waters, and the US-Caribbean Sea area (see list, n. 38).
43 K Scott, ‘Conservation on the high seas: Developing the concept of the High Seas Marine Protected Areas’ (2012) 27 TIJMCL 849–57; R Churchill, ‘The growing establishment of High Seas Marine Protected Areas: Implications for shipping’ in R Caddell and DR Thomas (eds), Shipping, Law and the Marine Environment in the 21st Century: Emerging Challenges for the Law of the Sea – Legal Implications and Liabilities (Lawtext Publishing, 2013) 53–88.
48 H Caminos, ‘Enforcement jurisdiction under the United Nations Convention on the Law of the Sea: An overview’ in H Hestermeyer et al (eds), Coexistence, Cooperation and Solidarity: Liber amicorum Rüdiger Wolfrum (Martinus Nijhoff, 2012) vol. 1, 737–76; cf. E Papastavridis, ‘Enforcement jurisdiction in the Mediterranean Sea: Illicit activities and the rule of law on the high seas’ (2010) 25 TIJMCL 569–99.
49 D König, ‘Flag of ships’ in R Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012), <http://opil.ouplaw.com/home/EPIL> accessed 13 August 2014. See also in general Catherine Redgwell, ‘The wrong trousers: State responsibility and international environmental law’ in M Evans and P Koutrakos (eds), The International Responsibility of the European Union: European and International Perspectives (Hart, 2013) 257–74.
52 Thus in The MOX Plant case (Ireland v United Kingdom), Provisional Measures, Order of 3 December 2001, paras 81–4 [request denied]; Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), Provisional measures, Order of 8 October 2003, ITLOS, operative para. 2 [request granted]; and most recently in Dispute concerning delimitation of the maritime boundary between Ghana and Côte d’Ivoire in the Atlantic, Provisional measures, Order of 25 April 2015, ITLOS, paras 67–8 and 99 (request partially granted and partially denied), all available at <http://www.itlos.org> (accessed 11 June 2015).
53 Southern Bluefin Tuna cases (New Zealand v Japan, Australia v Japan), Provisional measures, Order of 27 August 1999, ITLOS, para. 70, available at <http://www.itlos.org> (accessed 12 August 2014). Incidentally, for the purposes of the present chapter I chose not to deal with fisheries jurisdiction.
54 DM Ong, ‘The 1982 UN Convention on the Law of the Sea and marine environmental protection’ in M Fitzmaurice, DM Ong, and P Merkouris (eds), Research Handbook on International Environmental Law (Edward Elgar, 2010) 567–85, 572; BH Oxman, ‘The duty to respect generally accepted international standards’ (1991) 24 NYUJILP 109–59.
56 This is the system first created by the 1969 International Convention on Civil Liability for Oil Pollution Damage (CLC) and the 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution, as complemented by the 1992 Civil Liability Convention and the 1992 Fund Convention and eventually the 2003 Supplementary Fund Protocol; for an overview see <http://www.iopcfunds.org> (accessed 12 August 2014).AHE Popp, ‘The regime of liability and compensation for oil pollution damage from ships’ in MH Nordquist, JN Moore, A Chircop, and R Long (eds), The Regulation of Continental Shelf Development: Rethinking International Standards (Martinus Nijhoff, 2013) 297–307; D Gallo, ‘Civil liability, shipping and marine pollution: A critical appraisal’ in A del Vecchio (ed.), International Law of the Sea: Current Trends and Controversial Issues (Eleven International Publishing, 2014) 237–57.
57 Principle 4 para. 5; available at legal.un.org/ilc/texts/instruments/english/commentaries/9_10_2006.pdf (accessed 12 August 2014).
58 Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber), Advisory Opinion of 1 February 2011, ITLOS, paras 117–20; available at <http://www.itlos.org> (accessed 12 August 2014).D Freestone, Advisory Opinion of the Seabed Disputes Chamber of International Tribunal for the Law of the Sea on ‘Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area’ (2011) 105 AJIL 755–60; I Plakokefalos, ‘Seabed Disputes Chamber of the International Tribunal for the Law of the Sea: Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area Advisory Opinion’ (2012) 24 JEL 133–43; H Zhang, ‘The sponsoring State’s “obligation to ensure” in the development of the International Seabed Area’ (2013) 28 TIJMCL 681–99. See also Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC), ITLOS (n. 34) paras 131–2.
59 Pulp mills on the River Uruguay (Argentina v Uruguay)  ICJ Reports 14, para. 197 reads: ‘It is an obligation which entails not only the adoption of appropriate rules and measures, but also a certain level of vigilance in their enforcement and the exercise of administrative control applicable to public and private operators, such as the monitoring of activities undertaken by such operators…’ (my emphasis); available at icj-cij.org (accessed 12 August 2014).I Plakokefalos, ‘The Pulp Mills case’ (2011) 26 TIJMCL 169–83.
61 North Sea Continental Shelf cases (Federal Republic of Germany v Denmark, Federal Republic of Germany v the Netherlands)  ICJ Reports 3, para. 96; Aegean Sea Continental Shelf (Greece v Turkey)  ICJ Reports 3, para. 86; Maritime delimitation and territorial questions between Qatar and Bahrain (Qatar v Bahrain)  ICJ Reports 40, para. 185.
68 A Pozdnakova, Criminal Jurisdiction over Perpetrators of Ship-source Pollution: International Law, State Practice and EU Harmonization (Martinus Nijhoff, 2013); V Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level (Martinus Nijhoff, 2007).
69 Case C-308/06, The Queen on the application of The International Association of Independent Tanker Owners (Intertanko), The International Association of Dry Cargo Shipowners (Intercargo), The Greek Shipping Cooperation Committee, Lloyd’s Register, The International Salvage Union v The Secretary of State for Transport, (ECJ, Judgment of the Court (Grand Chamber) of 3 June 2008) available at curia.europa.eu (accessed 13 August 2014).
70 AK-J Tan, ‘The EU Ship-Source Directive and recent expansions of coastal State jurisdiction’ in D Vidas (ed.), Law, Technology and Science for Oceans in Globalisation. IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (Martinus Nijhoff, 2010) 291–305.
72 DD Caron and HN Schreiber (eds), The Oceans in the Nuclear Age: Legacies and Risks (Martinus Nijhoff, 2010); M Roscini, ‘The navigational rights of nuclear ships’ (2002) 15 Leiden JIL 251–65; L Marin, ‘Oceanic transportation of radioactive materials: The conflict between the law of the sea’s right of innocent passage and the duty to the marine environment’ (2001) 13 Florida JIL 361–78.
73 C Laly-Chevalier, ‘Les catastrophes maritimes et la protection des côtes françaises’ (2004) AFDI 581–606; Y van der Meensbrugghe, ‘De l’Erika au Prestige: La réaction de la Communauté européenne en matière de sécurité maritime et de protection de l’environnement marin en 2002’ (2003) ADM 33–345; J Juste-Ruiz, ‘Compensation for pollution damage caused by oil tanker accidents: From Erika to Prestige’ (2010) 1 Aegean Review of the Law of the Sea and Maritime Law 37–60.
74 Regulation (EC) 1726/2003 of the European Parliament and of the Council of 22 July 2003 amending Regulation (EC) 417/2002 on the accelerated phasing-in of double-hull or equivalent design requirements for single-hull oil tankers, OJ L 249, 1–4, 1 October 2003.A Proelss, ‘The “Erika III” package: Progress or breach of international law?’ in H-J Koch et al (eds), Climate Change and Environmental Hazards Related to Shipping: An International Legal Framework (2011) Proceedings of the Hamburg International Environmental Law Conference (Martinus Nijhoff, 2013) 129–56; M Höltmann, Schiffssicherheit und Meeresumweltschulz in der EU nach Erika und Prestige: die Vereinbarkeit der legislativen Maßnahmen der EU mit dem internationalen Seerecht (Nomos Verlag, 2012).
75 IMO Marine Environmental Protection Committee (MERC), Resolution MERC.111(50), Amendments to the Annex of the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973, adopted on 4 December 2003; text available at <http://www.imo.org/KnowledgeCentre/IndexofIMOResolutions/Pages/Marine-Environment-Protection-Committee-%28MEPC%29.aspx> (accessed 13 August 2014).
79 The M/V Saiga, ITLOS, para. 155; it then proceeded to set out the complete step-by-step procedure in para. 156. See also Guyana-Suriname Award, (2008) 47 ILM 164, para. 445; Fisheries Jurisdiction case (Spain v Canada)  ICJ Reports 432 (all accessed 13 August 2014).E Papastavridis, The Interception of Vessels on the High Seas. Contemporary Challenges to the Legal Order of the Oceans (Hart, 2013) 66–82; E Franckx and P Gautier (eds), The Exercise of Jurisdiction over Vessels: New Developments in the Fields of Pollution, Fisheries, Crimes at Sea and Trafficking of Weapons of Mass Destruction (Bruylant, 2010); P Jimenez-Kwast, ‘Maritime law enforcement and the use of force: Reflections on the categorization of forcible action at sea in the light of the Guyana/Suriname Award’ (2008) 13 Journal of Conflict & Security Law 49–91.
80 Art. 225 UNCLOS. See, for instance, the relevant Dutch argument in The ‘Arctic Sunrise’ case (The Netherlands v Russian Federation) Provisional Measures, order of 22 November 2013, ITLOS, para. 87, available at <http://www.itlos.org> (accessed 11 June 2015); D Guilfoyle and C Miles, ‘Provisional measures and the MV Arctic Sunrise’ (2014) 108 AJIL 271–87; A Oude Elferink, ‘The “Arctic Sunrise” incident: A multi-faceted Law of the Sea case with a human rights dimension’ (2014) 29 TIJMCL 244–89.
89 Adopted on 7 March 1996 and entered into force on 11 May 2008, it replaced the original 1980 Athens LBS Protocol; text available at 220.127.116.11/dbases/webdocs/BCP/ProtocolLBS96amendments_Eng.pdf (accessed 13 August 2014).
90 The latest one, the Regional Plan on Marine Litter Management in the Mediterranean was adopted in December 2013, entered into force on 8 July 2014 and is expected to run until 2025; for full details see <http://www.unepmap.org/index.php?module=news&action=detail&id=158> (accessed 13 August 2014).
91 Adopted in Madrid on 21 January 2008, it entered into force on 24 March 2011; text available at 18.104.22.168/dbases/webdocs/BCP/ProtocolICZM08_eng.pdf (accessed 13 August 2014).M Gavouneli, ‘Mediterranean challenges: Between old problems and new solutions’ (2008) 23 TIJMCL 477–97.
95 P Verlaan, ‘Current legal developments: London Convention and London Protocol’ (2011) 26 TIJMCL 185–94; A Rakestraw, ‘Open oceans and marine debris: Solutions for the ineffective enforcement of MARPOL Annex V’ (2012) 35 Hastings ICLR 383–409; A Akhtarkhavari, ‘Environmental principles and social change in the ocean dumping regime: A case-study of the disposal of carbon dioxide into the seabed’ in B Jessup and K Rubenstein (eds), Environmental discourses in public and international law (Cambridge University Press, 2012) 399–419.
96 Directive 2013/30/EU of the European Parliament and of the Council of 12 June 2013 on safety of offshore oil and gas operations and amending Directive 2004/35/EC, OJ L 178, 66–106, 28 June 2013;M Gavouneli, ‘Offshore installations: A comprehensive regime?’ MEPIELAN e-bulletin, 4 April 2013, available at <http://www.mepielan-ebulletin.gr/default.aspx?pid=18&CategoryId=4&ArticleId=137&Article=Offshore-Installations-A-Compehensive-Regime> (accessed 13 August 2014); S Vinogradov, ‘The impact of Deepwater Horizon: The evolving international legal regime for offshore accidental pollution, prevention, preparedness and response’ (2013) 44 ODIL 335–62.
97 See also D Johnson, ‘Regional regulation of offshore oil and gas industry decommissioning by the OSPAR Commission’ in Nordquist, Moore, Chircop, and Long (n. 56) 281–93.
107 Art. 234 UNCLOS.A Chircop, ‘Regulatory challenges for international Arctic navigation and shipping in an evolving governance environment’ (2014) 28 Ocean Yearbook 269–90; T Henriksen, ‘The future of navigation in ice-covered areas: a view from the Arctic’ in Caddell & Thomas (n. 43) 8–34.
113 E Franckx, ‘Pacta tertiis and the Agreement for the Implementation of the Straddling and Highly Migratory Fish Stocks Provisions of the United Nations Convention on the Law of the Sea’ (2000) 8 Tulane Journal of International and Comparative Law 49–81.
115 It seems to develop into a trend: see the ‘grey areas’ created in the Bay of Bengal by the International Tribunal on the Law of the Sea: Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Judgment, 14 March 2012, ITLOS, paras 474–6, available at <http://www.itlos.org> (accessed 14 August 2014); and by the Annex VII UNCLOS constituted arbitral tribunal: In the matter of the Bay of Bengal maritime boundary arbitration between the People’s Republic of Bangladesh and the Republic of India, Award of 7 July 2014, paras 503–8, available at <http://www.pca-cpa.org/BD-IN%2020140707%20Award2890.pdf?fil_id=2705> (accessed 14 August 2014).
116 The SPA & Biodiversity Protocol was adopted on 10 June 1995 and entered into force on 12 December 1999. It was a new distinct instrument and not an amendment of the previous 1982 Geneva SPA Protocol, which continues in force; for the text and more see 22.214.171.124/dbases/webdocs/BCP/ProtocolSPA95_eng.pdf (accessed 14 August 2014).
117 Art. 9 para. 2(b) and (c) of the SPA & Biodiversity Protocol. For an overview see T Scovazzi, ‘Marine protected areas on the high seas. Some legal and policy considerations’ (2004) 19 TIJMCL 1–17; N Oral, ‘Protection of vulnerable marine ecosystems in areas beyond national jurisdiction: Can international law meet the challenge?’ in A Strati, M Gavouneli, and N Skourtos (eds), Unresolved Issues and New Challenges to the Law of the Sea: Time before and Time after (Martinus Nijhoff, 2006) 85–108.
119 IMO Resolution A.982 (24), Revised Guidelines for the identification and designation of Particular Sensitive Sea Areas, adopted on 1 December 2005, replacing IMO Resolution A.927 (22), Guidelines for the designation of Special Areas under MARPOL 73/78 and Guidelines for the identification and designation of Particularly Sensitive Sea Areas, adopted on 29 November 2001, available at <www.imo.org/blast/blastDataHelper.asp?data_id=25322&filename=A982(24).pdf> (accessed 14 August 2014).
124 There are PSSAs in the Great Barrier Reef, Australia (1990); the Sabana-Camagüey Archipego, Cuba (1997); the Malpelo island, Colombia (2002); the sea around the Florida Keys, US (2002); the Wadden Sea, Denmark, Germany, and the Netherlands (2002); the Paracas National Reserve, Peru (2003); the Western European waters (2004); the extension of the Great Barrier Reef area to include the Torres Strait, Australia, and Papua New Guinea (2005); the Galapagos Archipelago, Ecuador (2005); the Baltic Sea area, Denmark, Estonia, Finland, Germany, Latvia, Lithuania, Poland, and Sweden (2005); the Papahānaumokuākea Marine National Monument, US (2007); the Strait of Bonifacio, France, and Italy (2011); the Saba Bank in the North-Eastern Caribbean area of the Netherlands Antilles (2012); full details available at <http://www.imo.org/OurWork/Environment/PollutionPrevention/PSSAs/Pages/Default.aspx> (accessed 14 August 2014).
125 Gavouneli (n. 4) 90–6.
126 Loi no. 2003-346 du 15 avril 2003 relative à la création d’une zone de protection écologique au large des côtes du territoire de la République, JO du 16 avril 2003, modifiant Loi no. 76-665 relative à la zone économique au large des côtes du territoire de la République, JO du 16 juillet 1976; text available at legisfrance.gouv.fr.
127 ThusC Deffigier, ‘La zone de protection écologique en Méditerranée, Un outil efficace de lutte contre la pollution par les navires? Commentaire de la loi no. 2003-346 du 15 avril 2003 relative à la création d’une zone de protection écologique au large des côtes du territoire de la République’ (2004) RJE 129–41 and 257–66, 131; S Wolf, ‘Neue Tendenzen zur Ausdehnung küstenstaatslicher Umweltkompetenzen auf See: Eine Untersuchung am Beispiel der französischen “zone de protection écologique” im Mittelmeer’ (2006) 66 ZaöRV 73–141.
128 Art. L218-21 de la Code de l’environnement, as amended by Art. 3 of Loi no. 2003-346 du 15 avril 2003; see n 125.
129 Legge no. 61 di 8 febbraio 2006, Istituzione di zone di protezione ecologica oltre il esterno del mare territoriale, Gazzetta Ufficiale no. 52 del 3 marzo 2006; available at <http://www.parlamento.it/parlam/leggi/06061l.htm> (accessed 14 August 2014).
130 UNESCO Convention on the Protection of the Underwater Cultural Heritage (Paris, 2 November 2001, entered into force 2 January 2009) 41 ILM 40. Applicable since April 2010, when the UNESCO Convention came into force for Italy; for the text see unesdoc.unesco.org/images/0012/001260/126065e.pdf (accessed 14 August 2014).T Scovazzi, ‘The Law of the Sea Convention and underwater cultural heritage’ (2012) 27 TIJMCL 753–61.
131 Decreto del Presidente della Repubblica 27 ottobre 2011, n. 209, Regolamento recante istituzione di Zone di protezione ecologica nel Mediterraneo nord-occidentale, del Mar Ligure e del Mar Tirreno, Gazzetta Ufficiale Serie Generale n. 293 del 17 dicembre 2011, in force since 1 January 2012; available at <http://www.gazzettaufficiale.it/eli/id/2011/12/17/011G0252/sg> (accessed 14 August 2014).
132 Decision of the Croatian Parliament for the extension of the jurisdiction of the Republic of Croatia in the Adriatic Sea, 3 October 2003, (2004) 55 Law of the Sea Bulletin 31. B Vukas, ‘State practice in the aftermath of the UN Convention on the Law of the Sea: The Exclusive Economic Zone and the Mediterranean Sea’ in Strati, Gavouneli, and Skourtos (n. 117) 251–8.
133 Act on the Ecological Protection Zone and the Continental Shelf of the Republic of Slovenia, 22 October 2005, (2006) 60 Law of the Sea Bulletin 56–126; D Vidas, ‘The UN Convention on the Law of the Sea, the European Union and the rule of law: What is going on in the Adriatic Sea?’ (2009) 24 TIJMCL 1–66.
134 E Roucounas, ‘Ενίσχυση του «κράτους λιμένος» κατά τη νέα Σύμβαση τωνΗνωμένων Εθνών για το Δίκαιο της Θάλασσας και το memorandum των Παρισίων[=Reinforcement of the port State under the new Law of the Sea Convention and the Paris memorandum], Offer to Ilias Krispis (Athens, 1995) 611–26, 614.
135 S Rosenne and A Yankov (eds), United Nations Convention on the Law of the Sea 1982. A Commentary, vol. IV: Articles 192 to 278, Final Act, Annex VI (Martinus Nijhoff, 1991), para. 218.9(f); TL McDorman, ‘A comment on Article 218 of the 1982 Law of the Sea Convention’ (1997) 28 JMCL 305–22.
141 G Kasoulides, Port State Control and Jurisdiction: Evolution of the Port State Regime (Martinus Nijhoff, 1993); T Stephens and RR Rothwell, ‘The UNCLOS framework for maritime jurisdiction and enforcement 30 years on’ (2012) 27 TIJMCL 701–9.
146 See the discussion under Section 1.1 above.
147 EJ Molenaar, ‘Port State jurisdiction: Towards mandatory and comprehensive use’ in Freestone, Barnes, and Ong (n. 20) 192–209.
149 Thus the 1923 Convention and Statute of the International Regime of Maritime Ports, concluded in Geneva on 9 December 1923, 58 LNTS 285, available at cil.nus.edu.sg/rp/il/pdf/1923%20Convention%20and%20Statute%20of%20the%20International%20Regime%20of%20Maritime%20Ports-pdf.pdf (accessed 14 August 2014).
152 ET Bulgherini, ‘Port State Control’ in Del Vecchio (n. 56) 205–19; B Ho-Sam, ‘Is Port State Control an effective means to combat vessel-source pollution? An empirical survey of the practical exercise by port States of their powers of control’ (2008) 23 TIJMCL 715–59.
153 IMO, International Safety Management Code (ISM Code) and Guidelines on Implementation, 2010, adopted by Resolution A.741(18) as amended by MSC.104(73), MSC.179(79), MSC.195(80) and MSC.273(85), available at <http://www.imo.org/OurWork/HumanElement/SafetyManagement/Pages/ISMCode.aspx> (accessed 14 August 2014).
154 ILO, Guidelines for port State control officers carrying out inspections under the Maritime Labour Convention, 2006, 2008; text available at <http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_101787.pdf> (accessed 14 August 2014). See also F Maupain, ‘Persuasion et contrainte aux fins de la mise en œuvre des normes et objectifs de l’OIT’ in J-C Javillier and B Gernigon with GP Politakis (eds), Les normes internationales du travail: Un patrimoine pour l’avenir. Mélanges en l’honneur de Nicolas Valticos (BIT, Genève, 2004) 687–709.
155 WHO, International Health Regulations, 2005; on the monitoring machinery see <http://www.who.int/ihr/procedures/en> (accessed 14 August 2014).
156 FAO, Agreement on port State measures to prevent, deter and eliminate illegal, unreported and unregulated fishing, approved by the FAO Conference at its 36th session on 22 November 2009; text available at <http://www.fao.org/fileadmin/user_upload/legal/docs/1_037t-e.pdf> (accessed 14 August 2014); E Witbooi, ‘Illegal, Unreported and Unregulated Fishing on the High Seas: The Port State Measures Agreement in context’ (2014) 29 TIJMCL 290–320.
157 Art. 15 of the UNESCO Convention. T Scovazzi, ‘Protection of the Underwater Cultural Heritage’ in Caddell & Thomas (n. 43) 293–306; R Garabello, La Convezione Unesco sulla protezione del patrimonio culturale subacqueo (Giuffrè, 2004).
158 I Christodoulou-Varotsi, ‘The Memoranda of Understanding (MOUs) on port State control’ in I Christodoulou-Varotsi and DA Pentsov (eds), Maritime Work Law Fundamentals; Responsible Shipowners, Reliale Seafarers (Springer, 2008) 707–43.
159 Memorandum of Understanding on Port State Control, Paris, 26 January 1982, as repeatedly amended, most recently on 1 July 2014; text available at <http://www.parismou.org/about-us/memorandum> (accessed 14 August 2014).
160 Established in 1993; information available at <http://www.tokyo-mou.org> (accessed 14 August 2014).
161 Established in 1992; information available at <http://www.acuerdolatino.int.ar> (accessed 14 August 2014).
162 Established in 1996; information available at <http://www.caribbeanmou.org/index.php> (accessed 14 August 2014).
163 Established in 1999; information available at <http://www.abujamou.org/index.php> (accessed 14 August 2014).
164 Established in 2000; information available at <http://www.bsmou.org> (accessed 14 August 2014).
165 Established in 1997; text available at <http://www.medeapsc.org/Med_MoU_Text.html> (accessed 14 August 2014).
166 Operational since 1999; information available at <http://www.iomou.org/moumain.htm> (accessed 14 August 2014).
167 Established in 2005; information available at <http://www.riyadhmou.org> (accessed 14 August 2014).
168 Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State control, OJ L 131, 57–98, 28 May 2009, further implemented by Commission Regulation (EU) No 428/2010 of 20 May 2010 implementing Article 14 of Directive 2009/16/EC of the European Parliament and of the Council as regards expanded inspections of ships, OJ L 125, 2–7, 21 May 2010; Commission Regulation (EU) No 801/2010 of 13 September 2010 implementing Article 10(3) of Directive 2009/16/EC of the European Parliament and of the Council as regards the flag State criteria, OJ L 241, 1–3, 14 September 2010; and Commission Implementing Regulation (EU) No 1205/2012 of 14 December 2012 amending Regulation (EU) No 802/2010 as regards the company performance, OJ L 347, 10–11, 15 December 2012.
170 For an overview see <http://www.emsa.europa.eu/implementation-tasks/port-state-control.html> (accessed 14 August 2014).