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21 The International Maritime Organization and the Law of the Sea

Gaetano Librando

From: The IMLI Manual on International Maritime Law: Volume I: The Law of the Sea

Edited By: David J Attard, Malgosia Fitzmaurice, Norman A Martínez Gutiérrez

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 28 February 2021

Subject(s):
UNCLOS (UN Convention on the Law of the Sea) — Ships / vessels — Flag state — Innocent passage — Territorial sea — International organizations, practice and procedure — Acts of international organizations — Specific treaties — Pollution

(p. 577) 21  The International Maritime Organization and the Law of the Sea

21.1  Introduction and Historical Background

The International Maritime Organization (IMO) is a specialized agency of the United Nations based in London, responsible for the safety and security of shipping and the prevention of marine pollution by ships. The origins of IMO may be traced back to the deliberations of the United Maritime Consultative Council (UMCC), a forum established in Washington in 1946 for the exchange of information and the discussion of mutual problems in the field of international shipping. The most notable item on the Council’s agenda was the possible establishment of an intergovernmental body capable of providing a permanent forum on shipping.

At the end of its deliberations, in October 1946, the UMCC recommended the establishment, through the machinery of the United Nations, of a permanent shipping organization. The United Nations Economic and Social Council (ECOSOC) then convened a conference of all interested governments for the purpose of adopting a constitution for this Organization, on the basis of a draft prepared by the UMCC.

The Convention on the Inter-Governmental Maritime Consultative Organization (IMCO)—later renamed International Maritime Organization1—was adopted in Geneva on 6 March 1948 by the United Nations Maritime Conference convened by ECOSOC. The twenty-one ratifications required to bring the Convention (p. 578) into force were, however, coming slowly, mainly due to the concern of some States that the treaty would lead to interference with their own national shipping interests and laws, particularly in matters of a purely commercial or economic nature.

This led to many States depositing declarations or reservations together with their instruments of ratification, the effect of which was, when the Convention entered into force on 17 March 1958, to restrict the Organization’s activity mainly to technical matters. These include maritime safety and security, efficiency of navigation, prevention and control of marine pollution from ships, and the legal matters related to these subjects.

By the time of the adoption of the 1982 United Nations Convention on the Law of the Sea (UNCLOS)2 by the Third United Nations Conference on the Law of the Sea, an intense treaty-making activity had taken place at IMO, leading to the adoption of most of the main IMO treaties, some of which were in force and widely ratified.

The Secretariat of IMO actively contributed to the work of that Conference in order to ensure that the elaboration of IMO instruments conformed with the basic principles guiding the elaboration of UNCLOS. Overlapping or potential conflict between the work of IMO and UNCLOS was avoided by the inclusion in several IMO conventions of provisions which state specifically that their text did not prejudice the codification and development of the law of the sea in UNCLOS, or any present or future claims and legal views of any State concerning the law of the sea and the nature and extent of coastal and flag State jurisdiction.

After the adoption of UNCLOS, the IMO Secretariat held consultations with the Office of the Special Representative of the Secretary General of the United Nations for the Law of the Sea, and later with the Division for Ocean Affairs and the Law of the Sea of the Office of Legal Affairs, of the United Nations (DOALOS), in connection with several matters relating IMO’s work to UNCLOS. Even before the entry into force of the Convention in 1994, explicit or implicit references to its provisions were incorporated into several IMO treaty and non-treaty instruments.

A comprehensive overview of the work of IMO as it relates to UNCLOS is contained in document LEG/MISC.8, prepared by the Secretariat of IMO, in consultation with DOALOS. This brief paper presents some aspects of the correlation IMO–UNCLOS, particularly with regard to the mandate of IMO, UNCLOS jurisdictional framework for the development of IMO treaties, port State, flag State, and coastal State jurisdiction.

(p. 579) 21.2  The Universal Mandate of IMO

Although IMO is explicitly mentioned only in Article 2 of Annex VIII of UNCLOS, several provisions in that Convention refer to the ‘competent international organization’ in connection with the adoption of international shipping rules and standards in matters concerning maritime safety, efficiency of navigation, and the prevention and control of marine pollution from vessels and by dumping.

In such cases, it is accepted that the expression ‘competent international organization’, when used in the singular, applies exclusively to IMO, bearing in mind the global mandate of the Organization as a specialized agency within the United Nations system established by the IMO Convention.

A number of provisions in UNCLOS refer to the mandate of several organizations in connection with the same subject matter. In some cases, activities set forth in these provisions may involve cooperation between IMO and other organizations.3

Article 1 of the IMO Convention establishes the global scope of IMO safety and anti-pollution activities. It also refers to other tasks such as the promotion of efficiency of navigation and the availability of shipping services based upon the freedom of shipping of all flags to take part in international trade without discrimination. Article 59 mentions IMO as the specialized agency within the United Nations system in relation to shipping and its effect on the marine environment. Articles 60 to 62 refer to cooperation between IMO and other specialized agencies as well as governmental and non-governmental organizations, on matters of common concern and interest.

The following factors indicate the wide acceptance and legitimacy of IMO’s universal mandate:

  • •  170 States representing all regions of the world are at present parties to the IMO Convention and therefore Members of IMO;

  • •  all Members may participate in meetings of all the IMO bodies responsible for drafting and adopting recommendations containing safety and anti-pollution rules and standards. These rules and standards are normally adopted by consensus;

  • •  all States, whether or not Members of IMO or the United Nations, are invited to participate in the conferences convened by IMO for the adoption of new conventions. So far, all IMO treaty instruments have been adopted by consensus.

(p. 580) 21.3  UNCLOS and IMO Instruments

UNCLOS being a ‘framework convention’, many of its provisions can be implemented only through specific operative regulations in other pertinent international agreements.

This is acknowledged in several provisions of UNCLOS which require States to ‘take account of’, ‘conform to’, ‘give effect to’, or ‘implement’ the relevant international rules and standards developed by or through the ‘competent international organization’ (this being IMO). The latter are referred to as ‘applicable international rules and standards’, ‘internationally agreed rules, standards, and recommended practices and procedures’, ‘generally accepted international rules and standards’, ‘generally accepted international regulations’, ‘applicable international instruments’, or ‘generally accepted international regulations, procedures and practices’.

The following UNCLOS Articles and provisions are of particular relevance in this context:

  • •  Article 21(2) refers to the ‘generally accepted international rules or standards’ on the ‘design, construction, manning or equipment’ of ships in the context of laws relating to innocent passage through the territorial sea; Article 211(6)(c) refers to the ‘generally accepted international rules and standards’ in the context of pollution from vessels; Article 217(1) and (2) refers to the ‘applicable international rules and standards’ in the context of flag State enforcement; and Article 94(3), (4), and (5) requires flag States to conform to the ‘generally accepted international regulations, procedures and practices’ governing, inter alia, the construction, equipment and seaworthiness of ships, as well as the manning of ships and the training of crews, taking into account the ‘applicable international instruments’:

  • •  Articles 21(4) and 39(2), and by reference Article 54, refer to ‘generally accepted international regulations’ in the context of prevention of collisions at sea;

  • •  Article 22(3)(a) refers to the ‘recommendations of the competent international organization’ (IMO) in the context of the designation of sea lanes, the prescription of traffic separation schemes (TSS), and their substitution. In the same context, Articles 41(4) and 53(9) provide for the referral of proposals by States to the ‘competent international organization’ (IMO) with a view to their adoption;

  • •  Article 23 refers to the requirements in respect of documentation and special precautionary measures established by international agreements for foreign nuclear-powered ships and ships carrying nuclear or inherently dangerous or noxious substances;

  • (p. 581) •  Articles 60 and 80 refer to the ‘generally accepted international standards established by the competent international organization’ (IMO) for the removal of abandoned or disused installations or structures to ensure safety of navigation (paragraph 3); the ‘applicable international standards’ for determination of the breadth of safety zones; the ‘generally accepted standards’ or recommendations of the ‘competent international organization’ (IMO) where the breadth exceeds a distance of 500 metres (paragraph 5); and the ‘generally accepted international standards’ regarding navigation in the vicinity of artificial islands, installations, structures, and safety zones (paragraph 6);

  • •  Article 94(3), (4), and (5), which regulates the duties of flag States, and Article 39(2), which concerns the duties of ships in transit passage, refer to the ‘generally accepted international regulations, procedures and practices’ for safety at sea and for the prevention, reduction, and control of pollution from ships;

  • •  Article 210(4) and (6) refers to the ‘global rules, standards, and recommended practices and procedures’ for the prevention, reduction, and control of pollution by dumping; Article 216(1) refers to the enforcement of such ‘applicable rules and standards established through competent international organizations or general diplomatic conference’;

  • •  Article 211 refers to the ‘international rules and standards’ established by ‘States acting through the competent international organization’ (paragraph 1) and ‘generally accepted international rules and standards established through the competent international organization’ (paragraphs 2 and 5) for the prevention, reduction, and control of pollution of the marine environment from vessels. Article 217(1) and (2), Article 218(1) and (3), and Article 220(1), (2) and (3), dealing with enforcement of anti-pollution rules, refer to the ‘applicable international rules and standards’. Articles 217(3) and 226(1) refer to the certificates (records and other documents) required by international rules and standards in the context of pollution control;

  • •  Article 211(6)(a), in connection with pollution from vessels, refers to such international rules and standards or navigational practices that are made applicable, through the competent international organization (IMO), for special areas;

  • •  Article 211(7) requires such ‘international rules and standards’ to include, inter alia, those relating to prompt notification to coastal States whose coastline or related interests may be affected by incidents, including maritime casualties, which involve discharges or probability of discharges;

  • •  Articles 219 and 226(1)(c) refer to ‘applicable international rules and standards’ relating to seaworthiness of vessels, while Article 94(5) refers to ‘generally accepted international regulations, procedures and practices’ governing seaworthiness of ships.

These provisions establish an obligation on UNCLOS States parties to apply IMO rules and standards. Such application relies to a great extent on the interpretation given by parties to UNCLOS to the expressions ‘take account of’, ‘conform to’, (p. 582) ‘give effect to’ or ‘implement’ in relation to IMO provisions. A distinction should also be made between the two main types of IMO instruments that contain such provisions: on the one hand, the recommendations adopted by the IMO Assembly, the IMO Maritime Safety Committee (MSC), and the IMO Marine Environment Protection Committee (MEPC), and on the other, the rules and standards contained in IMO treaties.

21.4  Recommendatory Measures

As stated, all IMO Members are entitled to participate in the adoption of resolutions of the Assembly, the MSC, and the MEPC, which contain recommendations on the implementation of technical rules and standards not included in IMO treaties. These resolutions are normally adopted by consensus and accordingly reflect global agreement by the IMO Members. States parties to UNCLOS are expected to conform to these rules and standards, bearing in mind the need to adapt them to the specific circumstances of each case. National legislation implementing IMO recommendations can be applied with binding effect to foreign ships.

Codes or guidelines included in the resolutions are frequently made mandatory by incorporation into national legislation. This was, for instance, the case of the International Maritime Dangerous Goods Code (IMDG Code), which became mandatory following the entry into force (on 1 Jan. 2004) of amendments to the 1974 International Convention for the Safety of Life at Sea (SOLAS)4 chapter VII.

In a number of cases, codes and guidelines initially contained in non-mandatory IMO resolutions are incorporated at a later stage into IMO treaties. For instance, the International Code for the Construction and Equipment of Ships carrying Dangerous Chemicals in Bulk (IBC Code) has been incorporated in both the 1974 SOLAS Convention and the International Conventions for the Prevention of pollution from ships (MARPOL) of 1973/1978.

21.5  IMO Treaty Instruments

In the case of IMO conventions and protocols, the general obligations established in UNCLOS regarding compliance with IMO rules and standards should be assessed with reference to the specific operative features of each treaty. These features relate not only to the way in which the rules and standards regulate substantive matters, such as the construction, equipment, or manning of ships, (p. 583) but also to the procedural rules governing the interrelations between flag, port, and coastal State jurisdiction in matters such as certificate recognition and enforcement of sanctions following violation of treaty obligations.

The application of IMO treaties should also be guided by the provisions contained in Articles 311 and 237 of UNCLOS. Article 311 concerns the relation between the Convention and other conventions and international agreements. Article 237 includes specific provisions on the relationship between UNCLOS and other conventions concerning the protection and preservation of the marine environment.

Against this background, compatibility between UNCLOS and IMO treaties can be established on the following basis:

  • •  Several provisions of UNCLOS reflect principles compatible with those already included in IMO treaties and recommendations adopted prior to the Convention. In this regard, mention should be made of provisions on collisions at sea, search and rescue of persons in distress at sea, TSS, exercise of port State jurisdiction for the protection and preservation of the marine environment, liability and compensation for oil pollution damage, and measures to avoid pollution arising from maritime casualties.

  • •  The active participation of the IMO Secretariat at the Third United Nations Conference on the Law of the Sea ensured that no overlapping, inconsistency or incompatibility existed between UNCLOS and IMO treaties adopted between 1973 and 1982. In some cases, compatibility was further ensured by the inclusion in IMO treaties of specific clauses indicating that the treaties should not be interpreted as prejudicing the codification and development of the law of the sea in UNCLOS.5 A similar provision was included in the 1972 London Convention,6 in respect of which IMO performs secretariat functions. These clauses also stipulate that nothing in these treaties should prejudice present or future claims and legal views of any State concerning the law of the sea and the nature and extent of coastal and flag State jurisdiction. In this way, legal certainty is provided, ensuring that IMO global regulatory activities do not overlap with developments in the field of codification of the law of the sea.

(p. 584) 21.6  The IMO Treaties in Accordance with International Law and the Law of the Sea

The degree of acceptability and worldwide implementation accorded to the rules and standards contained in IMO treaties is paramount in considering the extent to which parties to UNCLOS should, in compliance with obligations specifically prescribed in the Convention, apply IMO rules and standards. In this regard, it should be noted that reference to the obligation for States parties to the Convention to ‘take account of’, ‘conform to’, ‘give effect to’, or ‘implement’ IMO rules and standards is related to the requirement that these standards are ‘applicable’ or ‘generally accepted’. This means that the degree of international acceptance of these standards is decisive in establishing the extent to which parties to UNCLOS are under an obligation to implement them. This factor will also be important in determining the extent to which any obligation under UNCLOS to comply with generally accepted safety and anti-pollution shipping standards can bind parties to the Convention even if they are not parties to the IMO treaties containing those rules and standards.

Since 1982, formal acceptance of the most relevant IMO treaty instruments has increased greatly. As of August 2013, the three conventions that include the most comprehensive sets of rules and standards on safety, pollution prevention, and training and certification of seafarers, namely, SOLAS, MARPOL and the 1978 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW Convention), have been ratified by 160, 152, and 157 States, respectively (representing approximately 99 per cent gross tonnage of the world’s merchant fleet). The general degree of acceptance of these shipping conventions is mainly related to their implementation by flag States, which is strengthened by the fact that, under the principle of ‘no more favourable treatment’, port States which are parties to these conventions, respectively, are obliged to apply these rules and standards to vessels flying the flag of non-party States.

IMO treaties and amendments thereto are normally adopted by consensus. Technical rules and standards, as well as limits contained in several IMO treaties, can be updated through a procedure based on tacit acceptance of amendments. This procedure enables amendments to enter into force on a date selected by the conference or the competent body which adopted them, unless within a certain period of time after adoption, they are explicitly rejected by a specified number of States parties representing a certain percentage of the gross tonnage of the world’s merchant fleet.

The degree of implementation of IMO rules also tends to vary depending on the interpretation given by States parties to UNCLOS to the expressions found in the Convention, such as ‘give effect to’, ‘implement’, ‘conform to’, or ‘take account (p. 585) of’, in respect of IMO rules and standards. States parties should, in each case, assess the context of the UNCLOS provisions, establishing obligations in this regard and the specific IMO treaty and corresponding rules and standards referred to in UNCLOS.

On this point, States parties to UNCLOS should ensure that ships flying their flag or foreign ships under their jurisdiction apply generally accepted IMO rules and standards regarding safety and prevention and control of pollution. Non-compliance with these IMO provisions would result in substandard ships and violate the basic obligations set forth in UNCLOS concerning safety of navigation and prevention of pollution from ships.

The application by States parties to UNCLOS of IMO rules and standards should also constitute an incentive for them to become parties to the IMO treaties containing those rules and standards. Only as parties to those treaties, would they have specific entitlements in accordance with specific treaty law provisions in each case. A typical example would be the value accorded by States parties to IMO treaties to the certificates issued pursuant to those instruments. Also important would be the right of States parties to participate in the adoption of amends to treaties, or to interpret them.

Therefore, in principle, it seems beyond discussion that in many cases UNCLOS contains general obligations to apply rules and standards contained in IMO treaties. However, distinctions must be made: UNCLOS language is general and of necessity of a restricted operative character.

There seems to be consensus in support of an assertion of fundamental importance contained in the IMO document: ‘UNCLOS is acknowledged to be an “umbrella convention” because most of its provisions, being of a general kind, can be implemented only through specific operative regulations in other international treaties’. This assertion implies that IMO rules and standards are very detailed technical provisions which cannot be considered as binding among States unless they are parties to the treaties where they are contained.

UNCLOS provisions certainly aim at the effective implementation of substantive safety and anti-pollution rules, but they are provisions that regulate the features and extent of State jurisdiction, not the enforcement of measures regulated in other treaties. Compliance with IMO rules and standards cannot be delinked from the treaty framework in which these rules and standards are contained. Thus UNCLOS obligations to enforce IMO rules and standards should be understood as operative on condition that parties to UNCLOS also become parties to the IMO conventions which contain these rules and standards. SOLAS, MARPOL, or STCW rules and standards can only be properly implemented if flag and port States multilaterally bind each other in accordance with the terms of these treaties.

(p. 586) It follows that UNCLOS obligations to apply IMO rules and standards should be interpreted in accordance with the carefully drafted UNCLOS provisions on compatibility with other treaties in general (Article 311) and in connection with environmental treaties (Article 237). It is through the operation of these rules on compatibility that UNCLOS recognizes the importance of other treaties as a source of international obligations.

This interpretation qualifies the view according to which parties to UNCLOS are obliged to implement generally accepted IMO rules and standards, irrespective of whether or not they are parties to the treaty where these rules and standards are contained.

The unqualified view that parties to UNCLOS should implement IMO regulations even if they are not parties to the IMO treaties containing these rules could also result in the introduction of confusion in connection with the meaning of ‘general acceptance’. For instance: in the case of amendments regularly introduced in SOLAS and MARPOL in accordance with the tacit acceptance system, parties to these treaties have the right not to accept the amendments and preserve this right even if the new provisions come to be ‘generally accepted’. On the contrary, parties to UNCLOS that are not parties to SOLAS or MARPOL would theoretically be obliged to implement the new provisions.

In this case, it could even be argued that once regulations become generally accepted even parties to the corresponding IMO convention which have exerted the right not to apply these regulations would, in accordance with UNCLOS, have the duty to finally accept and implement them. An assessment of such a situation would imply considerations on how to balance, on the one hand, the character of UNCLOS as a convention imposing upon parties the need to implement measures which have become generally accepted, and, on the other, the preservation of basic treaty law principles of compatibility contained in Articles 311 and 237.

On the question of the real extent of UNCLOS obligations to apply IMO rules and standards, it could be concluded that there is a commitment for States parties to UNCLOS to comply with these shipping provisions as flag States, coastal States, and port States, and that UNCLOS needs to be complemented with further treaty law structure provided by the IMO conventions and protocols, in order to ensure that obligations to implement the extremely precise technical rules and standards contained in such conventions and protocols become binding in accordance with international law.

When of a general, customary, non-written character, international law can only rely on general practice as the sole source of obligations. Once international law is written into a detailed text full of technical specifications, the concept of general acceptance must be construed, bearing in mind the formal expression of consent (p. 587) given by States to be bound by the treaties in which those technical specifications are contained. This is particularly important in the case of IMO rules and standards which, by virtue of their own nature, can only be expressed in terms of written law. Hence, the criteria sustained in the IMO document, according to which the most important single element to consider in connection with the concept of general acceptance, is the degree of acceptance of a treaty expressed in the number of formal ratifications or accessions.

In the case of the main IMO shipping conventions, the requirement of general acceptance is ensured by combining two requirements, namely the number of States parties to them and the condition that these States should represent at least 50 per cent of the world tonnage. The most important IMO treaties have been ratified by a very high number of States, representing between 90 and 99 per cent of the world merchant fleet to which they apply.

21.7  Flag State Jurisdiction in Accordance with IMO Instruments

While UNCLOS defines flag, coastal, and port State jurisdiction, IMO instruments specify how State jurisdiction should be exercised so as to ensure compliance with safety and anti-pollution regulations. The enforcement of these regulations is primarily the responsibility of the flag State. One of the most important features reflecting the evolution of IMO’s work in the last decades is the progressive strengthening of port State jurisdiction with a view to correcting non-compliance with IMO rules and standards by foreign ships voluntarily in port. Voluntary access to port implies acceptance by the foreign ship of the port State’s powers to exert jurisdiction in order to ensure compliance with IMO regulations.

The notion of port State jurisdiction was initially developed by IMO as a limited set of procedures which port States can implement in order to correct deficiencies in the exercise of flag State jurisdiction, resulting in non-compliance with safety and anti-pollution regulations by foreign ships voluntarily in port. Being focused primarily on the need to achieve a balance between flag and coastal State jurisdiction, UNCLOS does not include general regulations on port State jurisdiction, but it does so in Part XII.7 Due to this peculiarity, the relationship between UNCLOS and IMO provisions changes in connection with the subject of the protection of the marine environment.

(p. 588) 21.8  Port State Jurisdiction to Correct Deficiencies and Power to Impose Sanctions

In certain cases, sanctions can be imposed on a foreign ship for violations committed outside port State jurisdiction, if the vessel is voluntarily in port. The power to impose sanctions conferred by IMO regulations on the port State (notably in MARPOL) should be related to the scope and characteristics of those jurisdictional powers as provided in part XII of UNCLOS.

In general, IMO treaties do not regulate the nature and extent of coastal State jurisdiction. The degree to which coastal States may enforce IMO regulations in respect of foreign ships in innocent passage in their territorial waters or in their exclusive economic zone (EEZ) is provided by UNCLOS. The same principle applies to transit passage in straits used for international navigation or to archipelagic sea lane passage in archipelagic waters. It should be noted that MARPOL includes provisions on monitoring and investigating illegal discharges of harmful substances into the marine environment.

Coastal State jurisdiction has been regulated by two IMO treaty instruments: the 1969 Intervention Convention,8 and the 1973 Intervention Protocol.9 These instruments specifically regulate the right of the coastal State to intervene on the high seas in the case of pollution casualties. The basic principles in these instruments are codified in Article 221(1) of UNCLOS.

21.9  Maritime Zones and the Implementation of IMO Regulations

States parties to IMO treaties must exercise jurisdiction over ships flying their flag, irrespective of the maritime zone where the ships may be. The differences in the rights and obligations of States in the various maritime zones do not change the obligations on flag States to implement safety and anti-pollution measures on board their vessels.

The existence of maritime zones is relevant, however, in determining the jurisdiction of a coastal State over foreign vessels. In this regard, IMO’s general provisions on ships’ routeing should be interpreted in the context of the corresponding provisions of UNCLOS. The legal status of the different maritime zones has (p. 589) also been taken into account in the IMO conventions, establishing a regime on civil liability and compensation for oil pollution damage.10 In these conventions, the entitlement of States parties to file claims for pollution damage depends on where the damage occurred, namely within their territory, their territorial sea, or their EEZ.

21.10  UNCLOS Jurisdictional Framework for the Development of IMO Treaties

The preceding paragraphs explain the interrelation developed throughout more than forty years between the international law of the sea and the international law of safety of navigation and prevention of marine pollution formulated by IMO. Main features governing this interrelation are the inclusion of clear references to IMO’s safety and anti-pollution standards and the strengthening of several important features related to questions of jurisdiction and enforcement.

The global mandate of IMO is implicitly but firmly acknowledged in cases where the expression ‘competent international organization’ is used in the singular, in connection with the adoption of international shipping rules and standards in matters concerning safety, efficiency of navigation, and the prevention and control of marine pollution from vessels and by dumping.

Paramount for the implementation of IMO regulations is the requirement contained in Article 94 UNCLOS that every State ‘shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag’ and the comprehensive set of references included in the same article to the duty of the flag State to implement regulations which, as it is explained in the IMO document, are recognized as being IMO shipping rules and standards.

UNCLOS has solved legal uncertainty in setting the jurisdictional features of IMO’s approval role related to the exercise of coastal State jurisdiction in the case of TSS, designation of sea lanes, ship reporting, and vessel traffic services, and, in general, adoption of routeing measures. In this respect it is important to note the different language used by UNCLOS to define the obligations of coastal States (p. 590) depending on the sea area where these measures apply. For instance, in the case of sea lanes and TSS applicable to the territorial sea, States must ‘take into account’ IMO recommendations. Instead, in the case of straits used for international navigation, the language is mandatory: the designation of sea lanes and TSS ‘shall conform to generally accepted international regulations’ (Article 41(3)).

21.11  The Environmental UNCLOS and IMO Rules and Standards

As mentioned, due to the peculiar features of UNCLOS Part XII, the relationship between UNCLOS and IMO provisions changes in connection with the subject of the protection of the marine environment.

The UNCLOS feature as ‘umbrella convention’ is greatly altered in Part XII, which includes provisions that are of an operative kind and as such should be read together with other operative provisions contained in IMO treaties, notably MARPOL.11

This apparent overlapping of provisions can be solved with an interpretation of both UNCLOS Part XII and MARPOL, which helps to avoid inconsistencies by pointing at the similarities and differences of both, bearing in mind their ultimate purpose. Both treaties aim at the protection of the marine environment by means of ensuring that anti-pollution preventive measures are properly implemented. However, UNCLOS focuses more on measures to be taken to prevent and penalize discharges in ocean spaces, while MARPOL violations are not only related to illegal discharges but also to non-compliance of preventive measures to be applied on board, irrespective of whether or not discharges take place.

The distinction has important consequences in connection with the application of penalties. It should not be forgotten that in accordance with UNCLOS (Article 230) penalties other than monetary ones can be imposed only in case of a wilful and serious act of pollution in the territorial sea. It is obvious that the expression ‘act of pollution’ should be interpreted bearing in mind the concept of ‘pollution of the marine environment’ established in Article 1(4) UNCLOS. In other words, there must be an act of wilful misconduct in the territorial sea, resulting in the introduction into the marine environment of polluting substances to authorize the imposition of a prison sentence. Violations to MARPOL resulting in substandard navigation, without both wilful misconduct and polluting discharges, can only be sanctioned with monetary penalties.

(p. 591) 21.12  Safety of Navigation

UNCLOS establishes the basic features relating to the exercise of flag State jurisdiction in the implementation of safety regulations. It also regulates the extent to which coastal States may interfere with navigation by foreign ships in different maritime zones for the purpose of ensuring proper compliance with safety regulations.

Several provisions of UNCLOS provide the jurisdictional framework for the adoption and implementation of safety of navigation rules and standards. As noted, the global mandate of IMO to adopt international regulations in this regard is acknowledged whenever there is a reference to the competent organization through which those regulations are adopted.

Enforcement of IMO regulations concerning construction, equipment, seaworthiness, and manning of ships relies primarily on the exercise of flag State jurisdiction. Other aspects such as communications, signals, ships’ routeing, prevention of collisions, and ship reporting involve the exercise of both flag and coastal State jurisdiction. In addition, several IMO instruments regulate the degree to which port States may enforce corrective measures to ensure that foreign ships voluntarily in port comply with international safety regulations. Such enforcement is limited to the conditions laid down in the main IMO safety conventions.

21.12.1  Flag State jurisdiction

Article 94 paragraphs (3), (4), and (5) UNCLOS requires flag States to take measures for ensuring safety at sea that conform to ‘generally accepted international regulations, procedures and practices’. On account of their global acceptance, the following IMO treaties may be deemed to fulfil the general acceptance requirement: SOLAS Convention; SOLAS Protocol 1988;12 Load Lines Convention 1966;13 1988 Load Lines Protocol;14 Tonnage Convention 1969;15 COLREG 1972;16 STCW Convention 1978, and the International Convention on Maritime Search and Rescue 1979 (SAR Convention).

(p. 592) Enforcement of IMO safety and anti-pollution provisions has been strengthened by the incorporation into the SOLAS Convention of the International Safe Management Code, under which companies operating ships are subject to a safe management system under the control of the Administration of the flag State.17

Part VII of UNCLOS dealing with the high seas contains the basic obligations of the flag State in relation to safety of navigation. In this case, enforcement of international safety regulations relies primarily on the exercise of flag State jurisdiction, irrespective of where the ship is sailing.

IMO’s Sub-Committee on Flag State Implementation (FSI) was set up by the MSC with the primary objective to identify the measures needed to ensure effective and consistent implementation of global instruments, including consideration of the special difficulties faced by developing countries. There is agreement in the Sub-Committee that the effectiveness of IMO safety and pollution-prevention instruments depends primarily on the application and enforcement of their requirements by the States that are parties to them, and that many had experienced difficulties in complying fully with the provisions of the instruments. The Sub-Committee has also been requested to assess problems relating to actions taken by the States parties to IMO instruments in their capacity as port States, coastal States, and as countries training and certifying officers and crews. Since its creation, the FSI Sub-Committee has produced important guidelines and recommendations, some of which have been adopted as resolutions by the IMO Assembly, the MSC, and the MEPC.

21.12.2  Coastal State jurisdiction

UNCLOS provides the enforcement framework for IMO instruments by establishing the degree to which coastal States may legitimately interfere with foreign ships in order to ensure compliance with IMO rules and standards. IMO treaty instruments do regulate the jurisdictional power of the coastal State, which is a subject exclusively within the scope of UNCLOS.

The following provisions of UNCLOS are relevant to the enforcement of IMO standards by coastal States:

21.12.3  Port State jurisdiction

Load Lines Convention, Load Lines Protocol 1988, Tonnage Convention, SOLAS Convention, SOLAS Protocol 1988, and STCW Convention contain provisions which regulate port State jurisdiction and the extent to which such jurisdiction should be exercised. As mentioned in the context of the implementation of IMO instruments, port State jurisdiction essentially aims to correct non-compliance or ineffective flag State enforcement of IMO regulations by foreign (p. 594) ships voluntarily in port, and constitutes a strong incentive for flag State compliance.

These treaties regulate the right of the port State to verify the contents of certificates issued by the flag State attesting compliance with safety provisions. They also entitle the port State to inspect the ship if the certificates are not in order, or if there are clear grounds to believe that the condition of the ship or of its equipment does not correspond substantially with the particulars of the certificates, or if they are not properly maintained. SOLAS provides that the port State may check operational requirements when there are clear grounds for believing that the master or the crew is not familiar with essential shipboard procedure relating to the safety of the ship or procedures set out in the ship’s safety management system.

STCW Convention regulates the control of certificates by the authorities of port States that are parties to that Convention, in order to ensure that seafarers serving on board are competent in accordance with the Convention. Measures similar to those referred to in SOLAS can be taken when there are clear grounds to believe that a certificate has been fraudulently obtained, or its holder has not been trained in accordance with the provisions of the Convention, or the ship is being operated in such a manner as to pose a danger to persons, property or the environment.

The IMO Assembly has adopted comprehensive sets of guidelines on port State control inspections, identification of contraventions, and detention of ships under the provisions of SOLAS Convention, Load Lines Convention, STCW Convention, Tonnage Convention, and MARPOL.

21.13  Prevention and Control of Marine Pollution

As referred to, the protection and preservation of the marine environment are addressed in Part XII of UNCLOS. Article 192 UNCLOS provides for the general obligation for States to protect and preserve the marine environment, which applies everywhere in the oceans. Article 194 elaborates further on the measures to be taken by States, consistent with UNCLOS, to prevent, reduce, and control pollution of the marine environment from any source.

‘Pollution of the marine environment’ is defined in Article 1(4) UNCLOS as the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water, and reduction of amenities. Article 1(5) reflects the definition of ‘dumping’ set out in Article III of the 1972 London Convention.

(p. 595) Pursuant to Article 197, States are also required to cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in elaborating international rules, standards, and recommended practices and procedures consistent with UNCLOS, for the protection and preservation of the marine environment. IMO is the competent international organization to adopt rules and standards relating to pollution from vessels and pollution by dumping.

The high standards in the IMO ship safety and security convention contribute to pollution prevention. Several IMO instruments exclusively relate to the prevention of marine pollution, irrespective of whether the introduction of polluting substances into the sea is the result of an accident involving a ship or derives from ship-related operational discharges. In this regard, the following instruments should be noted: Intervention Convention; London Convention; Intervention Protocol 1973; MARPOL; MARPOL Protocol 1997;21 OPRC 1990;22 London Convention Protocol 1996; OPRC-HNS Protocol 2000;23 AFS 2001;24 BWM 2004;25 and Hong Kong SRC 2009.26

In the case of MARPOL, general acceptance of the anti-pollution rules and standards established in the Convention is demonstrated by the fact that 152 States, representing 99 per cent of the world’s merchant fleet, are parties to this Convention and implement its two mandatory Annexes I and II, which regulate prevention of pollution by oil and noxious liquid substances, respectively. Annexes III (harmful substances in package form), IV (sewage from ships) and V (garbage) are optional. Annex VI, contained in a separate instrument (MARPOL Protocol 1997), contains provisions for the prevention of air pollution from ships. All Annexes to MARPOL are in force, and have been revised over the years. They are all widely ratified.

Prevention and control of pollution by dumping is regulated by two instruments: the London Convention 1972 and the London Convention Protocol 1996.

IMO’s anti-pollution instruments are to be applied in accordance with the compatibility clause provided in Article 237 UNCLOS, which establishes (p. 596) that provisions included in Part XII of UNCLOS are without prejudice to the specific obligations assumed by States parties under special conventions and agreements concluded previously, which relate to the protection and preservation of the marine environment and to agreements which may be concluded in furtherance of the general principles set forth in UNCLOS. The obligations previously assumed by States parties to UNCLOS are, however, to be implemented in a manner consistent with the general principles and objectives of UNCLOS.27

Part XII of UNCLOS includes several references to generally accepted international rules and standards established through the competent international organization or general diplomatic conference. With regard to pollution from vessels and from dumping, such rules and standards are contained in IMO instruments, some of which have been mentioned. In some cases, however, UNCLOS itself contains regulations of an operative kind that can be implemented in a way similar to IMO rules and standards. One such example is to be found in the provisions on enforcement of port State jurisdiction, and another in the special mandatory measures adopted for certain areas in the EEZ. Such subjects are regulated by both UNCLOS and MARPOL. Therefore, the provisions in the two treaties complement each other and should be read together in order to ensure proper and uniform implementation.

Article 9(3) of MARPOL requires that the term ‘jurisdiction’ be construed in light of international law in force at the time of application or interpretation of this Convention. Such international law, as reflected in UNCLOS, provides for different jurisdiction to coastal States, namely with respect to vessels within their ports, their territorial sea, and their EEZ, as well as to flag States and to port States. In an effort to enforce international rules and standards governing pollution prevention, UNCLOS and relevant IMO instruments allow port States to inspect foreign vessels while in ports.

21.14  Vessel-source Pollution

Article 211(1) UNCLOS lays down a general obligation for States, acting through the competent international organization (IMO), or general diplomatic conference, to establish international rules and standards regarding vessel-source pollution and to re-examine them from time to time, as necessary. As specified, the main IMO instrument in this area is MARPOL. Article 2(2) of MARPOL includes a definition of ‘harmful substance’ which is compatible with the (p. 597) definition of ‘pollution of the marine environment’ included in Article 1(4) UNCLOS. Both definitions cover actual or potential harm to living resources and marine life, hazards to human health, hindrance to legitimate uses of the sea, and reduction of amenities. While the definition in UNCLOS applies to all sources of marine pollution, including the introduction of energy into the marine environment, MARPOL only addresses ‘discharges’ from vessels, as defined in Article 2(3) of MARPOL.

In principle, MARPOL deals with operational discharges of harmful substances, namely those related to the normal operation of ships.

21.14.1  Relationship between flag, port, and coastal State jurisdiction

As in the case of IMO instruments relating to maritime safety and security, the enforcement of MARPOL relies primarily on the exercise of flag State jurisdiction with regard to the construction, design, equipment, and manning of ships. Flag States may not permit their ships to sail unless they comply with measures at least as effective as the generally accepted international rules and standards set forth in that regard. Article 5 of MARPOL also includes provisions on certificates and special rules relating to the inspection of foreign ships voluntarily in port, or at off-shore terminals under the jurisdiction of a Party, by officers duly authorized by that Party, to ensure that they comply with anti-pollution rules and standards and to prevent ships from sailing if these requirements are not met. In addition to the enforcement jurisdiction of the flag State to institute proceedings, MARPOL also provides for the possibility for port States to institute proceedings in accordance with their law. Provisions on the institution of proceedings in this respect should be read together with the safeguards included in Article 228 UNCLOS.

The provisions contained in UNCLOS and MARPOL on the exercise of flag and coastal State jurisdiction to adopt laws and regulations for the prevention, reduction, and control of pollution of the marine environment from vessels should be read in conjunction with the provisions in UNCLOS dealing with the respective jurisdiction of flag States, coastal States, and port States to enforce laws and regulations, as set out in Articles 217 to 220 UNCLOS.

21.14.2  Pollution incidents and emergencies at sea

In accordance with Article 198 UNCLOS, when a State becomes aware of cases in which the marine environment is in imminent danger of being damaged or has been damaged by pollution, it must give immediate notification to other States it deems likely to be affected by such damage and to the competent international organizations. Article 199 provides that States in the area affected, in accordance with their capabilities, and the competent international organizations shall cooperate to the greatest extent possible in eliminating the effects of pollution and (p. 598) preventing or minimizing the damage. To this end, States are required to jointly develop and promote contingency plans for responding to pollution incidents in the marine environment.

OPRC 1990 provides a global framework for international cooperation in combating major oil pollution incidents or threats of marine pollution. In Article 3(1)(a), OPRC 1990 establishes that each Party shall require that ships entitled to fly its flag have on board a shipboard oil pollution emergency plan as required by and in accordance with the provisions adopted by IMO for this purpose. In accordance with Articles 5(1)(c) and 3, parties are required to inform without delay all States concerned and IMO in cases of oil pollution incidents. Provisions concerning reports on incidents involving harmful substances are also contained in MARPOL, Article 8, and Protocol I.

Article 7 of OPRC 1990 further develops the main principles of international cooperation in pollution response. Paragraph 3 provides that, in accordance with applicable international agreements, each Party must take the necessary legal or administrative measures to facilitate the arrival and utilization in and departure from its territory of ships, aircraft, and other modes of transport engaged in responding to an oil pollution incident or transporting personnel, cargoes, materials, and equipment required to deal with such an incident.

Article 12 on institutional arrangements gives IMO important coordinating roles regarding the provision of information, education and training services, technical services, and technical assistance.

OPRC-HNS 2000 regulates international cooperation on preparedness and response to pollution incidents by HNS Substances.

21.15  Flag State Jurisdiction

The obligation for flag States to adopt and enforce laws and regulations for the prevention, reduction, and control of pollution of the marine environment is included in Articles 211(2) and 217 UNCLOS, respectively. Pursuant to Article 94(6) UNCLOS, a State that 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 investigate the matter and, if appropriate, take any action necessary to remedy the situation.

In accordance with Article 211(2), States must adopt laws and regulations for the prevention, reduction, and control of pollution of the marine environment from vessels flying their flag or of their registry. Such laws and regulations must at least have the same effect as that of generally accepted international rules and standards (p. 599) (i.e. those contained in MARPOL) established through the competent international organization (IMO).

Article 217 addresses the enforcement jurisdiction of flag States of international rules and standards established through the competent international organization (IMO) and their laws and regulations adopted in accordance with UNCLOS for the prevention, reduction, and control of pollution of the marine environment from vessels flying their flag or of their registry. Such enforcement must take place irrespective of where a violation occurs.

In accordance with Article 217(2) UNCLOS, the flag State must take appropriate measures to ensure that vessels flying its flag or of its registry are prohibited from sailing until they can proceed to sea in compliance with the requirements of the international rules and standards established through the competent international organization (IMO), including those on the design, construction, equipment, and manning of vessels.28

21.15.1  Investigation of an alleged violation and penalties

Article 217(4) sets out the obligation of the flag State to provide for immediate investigation and where appropriate institute proceedings in respect of the alleged violation by its ships of rules and standards established through the competent international organization (IMO), irrespective of where the violation occurred, or has been spotted. Likewise, Article 4 of MARPOL establishes the obligation of the flag State to institute proceedings as soon as possible with respect to any violation of the requirements of this Convention wherever it occurs, in accordance with its law.

Under Article 217(5), the flag State conducting an investigation of the violation may request assistance from other States, which in turn must endeavour to meet appropriate requests. Article 217(6) provides that flag States must, at the written request of any State, investigate any violation alleged to have been committed by vessels flying their flag. If satisfied that sufficient evidence is available to enable proceedings to be brought in respect of the alleged violation, flag States must institute proceedings without delay in accordance with their laws. Several provisions in Articles 4 and 6 of MARPOL elaborate in more detail the basic features of the cooperation between the flag State and other States parties. Both UNCLOS (Article 217(7)) and MARPOL (Article 4(3)) impose upon the flag State the obligation to promptly inform the requesting State and the competent international organization (IMO) of the action taken and its outcome. That information must be available to all States.

(p. 600) Article 217(8) UNCLOS establishes that penalties provided for by the laws and regulations of the flag States must be adequate in severity to discourage violations by their ships wherever they occur. A similar obligation is imposed on States parties to MARPOL (Article 4(4)).

21.16  Port State Jurisdiction

Several provisions of UNCLOS refer to the jurisdictional powers of States over foreign ships voluntarily in their ports in connection with the implementation of measures for the prevention, reduction, and control of pollution from vessels. These provisions, which are explicitly extended to offshore terminals of a State, should be considered together with MARPOL regulations relating to the exercise of port State control.29

Article 219 UNCLOS establishes that port States shall, as far as practicable, take administrative measures to prevent the sailing of a vessel which has been found to be in violation of applicable international rules and standards relating to seaworthiness of vessels and thereby threatens damage to the marine environment. The concept of seaworthiness should be understood not only as embracing provisions concerning the design, construction, manning, equipment, and maintenance of vessels regulated in IMO instruments relating to maritime safety and security, but also those contained in MARPOL. Bearing in mind the principle of no more favourable treatment contained in Article 5(4) of MARPOL, port States which are parties to this Convention are entitled to request compliance with preventive measures for the prevention, reduction, and control of pollution therein also from ships flying the flag of non-parties.

Article 217(3) UNCLOS establishes that the on-board certificates required by and issued pursuant to international rules and standards must be accepted by other States as evidence of the condition of the vessels and must be regarded as having the same force as certificates issued by them, unless there are clear grounds for believing that the condition of the vessel does not correspond substantially with the particulars in the certificates. Further provisions on the investigation of foreign vessels voluntarily in port are contained in Article 226. These provisions reproduce the basic features relating to the inspection of certificates and ships contained in MARPOL, Article 5. Paragraph 2 of this article refers to the inspection of certificates regulated in the technical annexes to this Convention.

(p. 601) Both UNCLOS (Articles 219 and 220) and MARPOL (Article 5(2)) establish the basic principles governing the detention in port of foreign vessels. According to Article 226(1)(c) UNCLOS, port States may refuse the release of a vessel whenever it would present an unreasonable threat of damage to the marine environment, or make the release conditional upon proceeding to the nearest appropriate repair yard. Upon removal of the causes of violation, ships must be permitted to continue immediately.

21.16.1  Discharge violations

UNCLOS provisions concerning measures to be taken by port States in the event of discharge in violation of international rules and standards are contained in Article 218. Paragraph 1 of this article expressly authorizes port States to institute proceedings in respect of any discharge from a vessel outside the internal waters, territorial sea, or EEZ zone of that State in violation of applicable international rules and standards established through the competent international organization (IMO). Paragraphs 2, 3, and 4 address situations involving requests to the port State from the flag State, as well as coastal States, regarding discharge violations of applicable international rules and standards. Violations of a port State’s laws and regulations for the prevention, reduction, and control of pollution from vessels by a foreign ship voluntarily in port, which have been committed within the territorial sea or EEZ of that State, are dealt with in Article 220 of the Convention. In both cases, the State into whose port the vessel has voluntarily come should apply MARPOL rules and standards.

Actions to be taken in the event of violations of regulations on discharges are contained in Article 6(2) of MARPOL. This provision establishes that ships to which this Convention applies may, in any port of a Party, be subject to inspection by officers appointed or authorized by that Party for the purposes of verifying whether the ship has discharged any harmful substances in violation of the provisions of the regulations. Other provisions in the same Article deal with communications with the Administration of the flag State and other States affected by the violation, as well as the rules governing institution of proceedings.

21.16.2  Reception facilities

MARPOL sets out requirements for port reception facilities. All parties to this Convention are obliged to provide reception facilities for ships calling at their ports. As recognized under Article 211(6) UNCLOS, the requirement for such reception facilities is particularly necessary in ‘special areas’ where, because of the vulnerability of these areas to pollution, more stringent discharge restrictions are required. MARPOL also provides that these reception facilities should, in each case, be adequate for the reception of wastes from ships, without causing undue delay to the ships using them.

(p. 602) The provision of adequate reception facilities worldwide is a matter of extreme complexity which involves the shipping industry, port operators, oil and chemical companies, and governments.30

21.17  Coastal State Jurisdiction

Article 211(1) UNCLOS provides that States, acting through the competent international organization or general diplomatic conference, must promote the adoption of routeing systems designed to minimize the threat of accidents which might cause pollution of the marine environment, including the coastline, and pollution damage to the related interests of coastal States. As mentioned in connection with safety of navigation, IMO is the competent international organization for developing guidelines and regulations on ships’ routeing systems, and comments made under that section apply to the prevention of marine pollution. In this regard, mention should be made of SOLAS Chapter V on Safety of Navigation. According to paragraph 1 of Regulation 10, ships’ routeing systems contribute to protection of the marine environment. Paragraph 9 of Regulation 10 requires that all adopted ships’ routeing systems and actions taken to enforce compliance with those systems be consistent with international law, including the relevant provisions of UNCLOS.

In accordance with Article 21(1) UNCLOS, the coastal State may adopt laws and regulations in conformity with the provisions of UNCLOS and other rules of international law, relating to innocent passage through the territorial sea in respect of, inter alia, the preservation of its environment and the prevention, reduction, and control of pollution thereof. In this connection, Article 211(4) establishes that coastal States may, in the exercise of their sovereignty within their territorial sea, adopt laws and regulations for the prevention, reduction, and control of marine pollution from foreign vessels, including vessels exercising the right of innocent passage. Such laws and regulations must not hamper the innocent passage of foreign vessels. Under Article 21(2), such laws and regulations adopted by the coastal State must not apply to the design, construction, manning, or equipment of foreign ships, unless they are giving effect to generally accepted international rules and standards.

Article 220(2) UNCLOS provides for the right of the coastal State to undertake physical inspection of a vessel navigating in its territorial sea where there are clear grounds for (p. 603) believing that the vessel has, during its passage therein, violated laws and regulations of that State adopted in accordance with UNCLOS, or applicable international rules and standards for the prevention, reduction, and control of pollution from vessels, namely those rules and standards adopted by IMO. Article 220(5) also allows physical inspection of a vessel navigating in the territorial sea or EEZ where there are clear grounds for believing that the vessel has committed, in the EEZ, a violation of applicable international rules and standards for the prevention, reduction, and control of pollution from vessels, resulting in a substantial discharge causing or threatening significant pollution of the marine environment. Where evidence so warrants, the coastal State may institute proceedings, including detention of the vessel in accordance with its laws.

Article 56(1)(b)(iii) UNCLOS provides that, in its EEZ, the coastal State has jurisdiction with regard to the protection and preservation of the marine environment. In exercising that jurisdiction, the coastal State is empowered to enact laws and regulations for the prevention, reduction, and control of pollution from vessels in the EEZ. Such laws and regulations must, in accordance with Article 211(5) UNCLOS, conform to and give effect to generally accepted international rules and standards established through the competent international organization (IMO).

Several provisions of UNCLOS address the rights of the coastal State in cases of violations to international rules and standards for the prevention, reduction, and control of pollution from vessels committed in the EEZ by vessels navigating either in the EEZ or the territorial sea:

  • •  If there are clear grounds for believing that such a violation has taken place in the EEZ, the State may, in accordance with Article 220(3), require the vessel to give information regarding its identity and port of registry, its last and next port of call, and other relevant information required to establish whether a violation has occurred.

  • •  If there are clear grounds for believing that a vessel has committed a violation in the EEZ resulting in a substantial discharge causing or threatening significant pollution of the marine environment, the coastal State may, in accordance with Article 220(5), undertake physical inspection of the vessel for matters related to the violation, if the vessel has refused to give information or if the information supplied by the vessel is manifestly at variance with the evident factual situation and if the circumstances of the case justify such inspection.

  • •  If there is clear objective evidence that a vessel has committed a violation in the EEZ resulting 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 of its territorial sea or EEZ, the State, in accordance with Article 220(6), may institute proceedings, including detention of the vessel.

21.17.1  Special areas and particularly sensitive sea areas

Special mandatory requirements for certain areas regarding the prevention of operational discharges of harmful substances are contained in Annexes I, II, and (p. 604) V to MARPOL. A ‘special area’ is defined in Annex I to MARPOL as ‘a sea area where for recognized technical reasons in relation to its oceanographical and ecological condition and to the particular character of its traffic the adoption of special mandatory methods for the prevention of sea pollution by oil is required’. Properly modified, the same definition is used to refer to special areas designated under Annexes II, IV, and V. Annex VI to MARPOL establishes the category of ‘Emission Control Areas’ (ECA), in which more stringent controls on emissions of sulphur oxide (SOx), nitrogen oxide (NOx) and particulate matter are required.31

A comparison of Article 211(6) UNCLOS and the provisions on special areas under MARPOL indicates that, while the areas established pursuant to Article 211(6) are restricted in jurisdictional scope to the EEZ, the MARPOL special area provisions cover enclosed or semi-enclosed areas which may include parts of the territorial sea, the EEZ, and the high seas. Implementation of MARPOL special areas is, however, subject to the jurisdictional limits provided in UNCLOS.

MARPOL special requirements apply only to the discharge of harmful substances. Pursuant to Article 211(6)(a), the coastal State may adopt laws and regulations for the prevention, reduction, and control of pollution from vessels implementing international rules and standards or navigational practices as are made applicable, through the Organization, for special areas. Pursuant to Article 211(6)(c), additional laws and regulations that may be adopted by the coastal State may relate to discharges or navigational practices, but shall not require foreign vessels to observe design, construction, manning, or equipment standards other than generally accepted international rules and standards, as noted.32

The IMO Assembly, at its twenty-fourth session, adopted revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas (PSSAs) (Resolution 982(24)). According to these guidelines, a PSSA is an area that needs (p. 605) special protection through action by 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 process, therefore, involves both the designation of the PSSA and the adoption of measures for their proper protection. An application for a PSSA designation may come from IMO Member States only and should contain, inter alia, a proposal for the relevant associated protective measures aimed at preventing, reducing, or eliminating the threat or identified vulnerability. Associated protective measures for PSSAs are limited to actions that are to be, or have been, approved and adopted by IMO, for example, a routeing system such as an area to be avoided.33

This Chapter should not come to an end without referring the reader to IMO document LEG/MISC.8 for a more in-depth and extensive analysis of this subject.

Footnotes:

Gaetano Librando is the Senior Deputy Director, Legal Affairs Office, Legal Affairs and External Relations Division, Interntional Maritime Organization.

1  The original name of ‘Inter-Governmental Maritime Consultative Organization’ was changed by IMO Assembly Res A.358(IX) and Res A.371(X), adopted in 1975 and 1977 respectively.

2  United Nations Convention on the Law of the Sea (Montego Bay, opened for signature 10 Dec. 1982, entered into force 16 Nov. 1994) 1833 UNTS 3 (UNCLOS).

3  To assist States and to contribute to a better understanding of the implications of the Convention for the organizations and bodies dealing with maritime affairs both within and outside the United Nations system, DOALOS has prepared a table on ‘Competent or relevant international organizations’ in relation to UNCLOS. Published in (1996) 3 Law of the Sea Bulletin, the table lists subjects and articles in the sequence in which they appear in the Convention, together with the corresponding competent organizations.

4  International Convention for the Safety of Life at Sea (London, adopted 1 Nov. 1974, entered into force 25 May 1980) 1184 UNTS 2 (SOLAS Convention).

5  See International Convention for the Prevention of Pollution from Ships (London, adopted 2 Nov. 1973, entered into force 2 Oct. 1983) 1340 UNTS 62, Art. 9(2) (MARPOL Convention); International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (adopted 7 July 1978, entered into force 28 April 1984, as amended 7 July 1995) 1361 UNTS 190 Art. V (STCW Convention); and International Convention on Maritime Search and Rescue (adopted 27 Apr. 1979, entered into force 22 June 1985) 1405 UNTS 97, Art. II (SAR Convention).

6  Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London, 13 Nov.1972) 1046 UNTS 120 (London Convention).

7  The relationship between flag and port State jurisdiction is further analysed in part II of the IMO document.

8  Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (concluded 29 Nov. 1969, entered into force 6 May 1975) 970 UNTS 211 (Intervention Convention).

9  Protocol Relating to Intervention on the High Seas in Cases of Marine Pollution by Substances Other than Oil (2 Nov. 1973, entered into force 30 Mar. 1983) 1313 UNTS 3.

10  International Convention on Civil Liability for Oil Pollution Damage (Brussels, 29 Nov. 1969, entered into force 19 June 1975) 973 UNTS 3 (Civil Liability Convention) as amended by the Protocol of 1992 to the Civil Liability Convention (London, 27 Nov. 1992, entered into force 30 May 1996) 1956 UNTS 225; Protocol of 1992 to amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971 (FUND Convention 1992); Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 (2003 FUND Protocol); International Convention on Liability and Compensation for Damage in connection with the Carriage of Hazardous and Noxious Substances by Sea (London, 3 May 1996, not in force) 35 ILM 1406 (HNS Convention); the Protocol of 2010 to amend the HNS Convention (HNS Protocol 2010); the International Convention on Civil Liability for Bunker Oil Pollution Damage (London, 27 Mar. 2001, entered into force 21 Nov. 2008) 40 ILM 1493 (Bunker Oil Convention); and Nairobi International Convention on the Removal of Wrecks (18 May 2007) 46 ILM 697 (Nairobi Wreck Removal Convention).

11  See e.g. the provisions on investigations of foreign vessels contained in UNCLOS, Art. 226 and compare them with those of MARPOL, Art. 5: both articles indicate how certificates should be inspected, measures to be taken when things are not in order, etc.

12  Protocol of 1988 relating to the International Convention for the Safety of Life at Sea (London, 11 Nov. 1988, entered into force 3 Feb. 2000) IMO Doc HSSC/CONF/11 (SOLAS Protocol 1988).

13  International Convention on Load Lines (London, 5 Apr. 1966, entered into force 21 July 1968, as amended 1971, 1975, 1987, and 1989) 640 UNTS 133 (Load Lines Convention 1966).

14  Protocol of 1988 relating to the International Convention on Load Lines (London, 11 Nov. 1988, entered into force 3 Feb. 2000) IMO Doc HSSC/CONF/12 (1988 Load Lines Protocol).

15  International Convention on Tonnage Measurement of Ships (opened for signature 23 June 1969, entered into force 18 July 1982) 1291 UNTS 3 (Tonnage Convention 1969).

16  Convention on the International Regulations for Preventing Collisions at Sea (London, adopted 20 Oct. 1972, entered into force 15 July 1977, as amended 1981, 1987, and 1989) 1050 UNTS 16 (COLREG).

17  IMO Res A.912(22) provides guidance to assist flag States in the self-assessment of their performance; IMO Assembly Res A.914(22) provides guidance on measures to further strengthen flag State implementation.

18  The participation in the main IMO conventions and their consequent incorporation into national legislation entitles coastal States to request that foreign ships in innocent passage through their territorial sea comply with the rules in these conventions, even if the flag State is not party to the relevant instrument.

19  In addition and in order to protect bordering States’ interests, UNCLOS has imposed on foreign ships in transit passage the obligation to comply with ‘generally accepted international regulations, procedures and practices for safety at sea, including the International Regulations for Preventing Collisions at Sea’ (UNCLOS, Art. 39(2)(a)). This expression seems to have a wider connotation in that it may cover also non-binding instruments. It should also be noted that elements of search and rescue are encompassed within the terms of UNCLOS, Art. 39.

20  These conventions should, however, be implemented with reference to the criteria of compatibility established in UNCLOS, Art. 311.

21  Protocol of 1997 to amend the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto, as amended.

22  International Convention on Oil Pollution Preparedness, Response and Cooperation, 1990.

23  Protocol on Preparedness, Response and Cooperation to Pollution Incidents by Hazardous and Noxious Substances, 2000.

24  International Convention on the Control of Harmful Anti-fouling Systems on Ships, 2001.

25  International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004.

26  Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009. Other instruments adopted by IMO, namely the International Convention on Salvage (London, 28 Apr. 1989) (Salvage Convention) and the Nairobi Convention on the Removal of Wrecks 2007 also contain provisions that contribute to protecting and preserving the marine environment.

27  These compatibility clauses are especially relevant with regard to the implementation of MARPOL Convention and the London Convention, the two main treaties regulating prevention of pollution from vessels and from dumping, which were adopted before UNCLOS.

28  This provision in fact extends the scope of flag State jurisdiction over the design, construction, equipment, and manning of vessels provided in Art. 94(3) UNCLOS to the protection of the marine environment.

29  IMO Res A.787(19) on Procedures for Port State Control, as amended, contains a detailed interpretation of applicable IMO rules and standards and includes an explanation of the meaning of basic concepts involved in the exercise of port State jurisdiction, such as ‘clear grounds’ (for believing that violations have taken place), ‘inspection’, and ‘detention’.

30  This problem has been the subject of a number of MEPC Resolutions and Guidelines. See MEPC 55, ‘The Action Plan for tackling the alleged inadequacy of port reception facilities’ (2006); MEPC 58, ‘Standard format for the advance notification form for waste delivery to port reception facilities’, MEPC.1/Circ.644 (2008); MEPC 59, ‘Guide to Good Practice for Port Reception Facilities’, MEPC.1/Circ.671 (2009); MEPC 62, Guidelines on Reception Facilities under MARPOL Annex VI, July 2011; FSI, Guide to Good Practice for Port Reception Facility Providers and Users MEPC.1/Circ.671/Rev.1, which provides guidance and easy reference to good practices related to the use and provision of port reception facilities, as well as a list of applicable regulations and guidelines; MEPC 63, Guidelines for the Development of a Regional Reception Facilities Plan (2012).

31  Guidelines for the designation of special areas under MARPOL are formulated in Resolution A.927(22) of 29 Nov. 2001.

32  To date, ten special areas have been designated under MARPOL Annex I (Mediterranean Sea, Baltic Sea, Black Sea, Red Sea, ‘Gulfs’ area, Gulf of Aden, Antarctic area, North West European Waters, Oman area of the Arabian Sea, and Southern South African waters). In these areas, any discharge into the sea of oil or oily mixtures from ships of 400 gross tonnage and above is prohibited, with few exceptions (Res MEPC.117(52) of 15 Nov. 2004). Under Annex II, the Antarctic area has been designated as a special area where any discharge into sea of noxious liquid substances or mixture containing such substances is prohibited (Res MEPC.118(52) of 15 Oct. 2004). As indicated previously, the MEPC, at its sixty-second session, introduced special areas into Annex IV of MARPOL and simultaneously designated the Baltic Sea as the first special area under that Annex. Eight special areas have been designated under Annex V (Mediterranean Sea, Baltic Sea, Black Sea, Red Sea, ‘Gulfs’ area, North Sea, Antarctic area, and Wider Caribbean region, including the Gulf of Mexico and the Caribbean Sea). Four SOx emission control areas (ECAs) have been designated under Annex VI (Baltic Sea (ECA for SOx), North Sea (ECA for SOx), North American area (ECA for SOx and NOx), and the United States Caribbean Sea area (ECA for SOx,, NOx, and particulate matter)).

33  The following 14 PSSAs have been designated to date: the Great Barrier Reef (Australia) (Res. MEPC.44(30)); the Sabana-Camagüey Archipelago (Cuba) (Res. MEPC.74(40)); Malpelo Island (Colombia) (Res. MEPC.97(47)); the sea around the Florida Keys (USA) (Res. MEPC.98(47)); the Wadden Sea (Denmark, Germany, and the Netherlands) (Res. MEPC.101(48)); Paracas National Reserve (Peru) (Res. MEPC.106(49)); Western European Waters (Belgium, France, Ireland, Portugal, Spain, and the UK) (Res. MEPC.121(52)); Extension of the existing Great Barrier Reef PSSA to include the Torres Strait (Australia and Papua New Guinea) (Res. MEPC.133(53)); Canary Islands (Spain) (Res. MEPC.134(53)); the Galapagos Archipelago (Ecuador) (Res. MEPC.135(53)); the Baltic Sea area (Denmark, Estonia, Finland, Germany, Latvia, Lithuania, Poland, and Sweden) (Res. MEPC.136 (53)); the Papahānaumokuākea Marine National Monument (USA) (Res. MEPC.171(57)); the Strait of Bonifacio (France and Italy) (Res. MEPC.204(62)); and the Saba Bank (the Kingdom of the Netherlands in the North-eastern Caribbean) (Res. MEPC.226(64)).