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Part 2 The objects of international law, Ch.6 The high seas, The Protection and Preservation of the Marine Environment

Sir Robert Jennings qc, Sir Arthur Watts kcmg qc

From: Oppenheim's International Law: Volume 1 Peace (9th Edition)

Edited By: Robert Jennings, Arthur Watts KCMG QC

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 26 October 2020

Subject(s):
Pollution — Coastal states — Ships / vessels — Innocent passage — Responsibility of states

The Protection and Preservation of the Marine Environment

Hargrove (ed), Who Protects the Ocean? Environment and the Development of the Law of the Sea (1975) Kiss, ‘La pollution du milieu marin’, ZöV, 38 (1978), pp 902–32 Okidi, Regional Control of Ocean Pollution: Legal Institutional Problems and Prospects (1978) de Mestral, Harv ILJ, 20 (1979), pp 469–518 M’Gonigle and Zacher, Pollution, Politics, and International Law (1979) Timagenis, International Control of Marine Pollution (2 vols, 1980) Kindt, Environmental Law, 11 (1980), pp 67–96 Hakapää, Marine Pollution in International Law (1981) Johnston (ed), The Environmental Law of the Sea (1981) van Reenen, Neth YBIL, 12 (1981), pp 1–44 Douay, ‘Le droit de la mer et la préservation du milieu marin’ in Le Nouveau Droit international de la mer (eds Bardonnet and Virally, 1983), pp 231–67 Garon, Ecology Law Quarterly, 19 (1982–83), pp 641–83 Handl, Can YBIL, 21 (1983), pp 85–117 Smets, Journal of Maritime Law and Commerce, 14 (1983), pp 23–43 Abecassis and Jarashow, Oil Pollution from Ships, International, United Kingdom and United States Law and Practice (2nd ed, 1985) Dupuy and Rémond-Gouilloud, ‘La préservation du milieu marin’ in Traité du nouveau droit de la mer (eds Dupuy and Vignes, 1985), pp 979–1045 Boyle, AJ, 79 (1985), pp 347–72 Soni, Control of Marine Pollution in International Law (1985) Shaw, Winslett and Cross, Natural Resources Journal, 27 (1987), pp 157–85 Meng Qing-Nan, Land-based Marine Pollution (1987) Kwiatkowska, Hague YBIL (1988), pp 111–40 The North Sea: Perspectives on Regional Environmental Cooperation in International Journal of Estuarine and Coastal Law, special issue (eds Freestone and Ijlstra, 1990) M Fitzmaurice, The International Legal Problems of the Environmental Protection of the Baltic Sea (1991) Freestone, The North Sea: Basic Legal Documents on Regional Environmental Cooperation (1991)

§ 353  Agreements on pollution

The problem of pollution of the sea presents many different facets, both practical and legal. Pollution may originate from the land,1 especially from rivers; or it may originate at sea, through dumping of oil or other wastes, or through accidents to carriers of polluting materials. The pollution, even when originating at sea, will often, even usually, affect the land by polluting beaches and destroying wildlife on land. The affected coasts may be far distant from the location of origin of the pollutant. In terms of legal control there is a crucial problem of alternative or competing jurisdictions: the primary flag (p. 817) jurisdiction and several other possible jurisdictions for certain aspects of control, such as the territorial jurisdiction of a port of call of the vessel, and indeed the jurisdiction of the state whose coastline is threatened. It is not surprising, therefore, that the international law for the protection of the maritime environment is predominantly in the form of treaties and conventions; and that these agreements reflect to a considerable extent the pattern of the increasing use and transport of oil as a major energy source.

The first of these conventions was the Convention for the Prevention of Pollution of the Sea by Oil 1954 (London), which came into force in 1958.2 This was concerned with what seemed at that time to be the major problem: the discharge of oily wastes, especially oily ballast water, into the sea, whether out at sea or in seaports with inadequate facilities for this kind of operation. The Geneva Convention on the High Seas 1958 also contains somewhat general provisions, which did, however, broaden the area of concern. In Articles 24 and 25, the parties undertook to draw up regulations to prevent pollution by discharge of oil, and/or radioactive waste, from ships of 500 tons and above, registered in contracting states (or polluting discharges from pipelines); to take account of any standards and regulations formulated by competent international organisations; and generally to cooperate with competent international organisations in the protection of the seas or of the airspace above it. The ‘seas’ in these provisions presumably applies to the high seas, including the contiguous zone, but not to the territorial sea, and the corresponding convention on the territorial sea has no corresponding provisions.

§ 354  The Torrey Canyon and the Brussels Conference

A new urgency resulted from the major accident to the Torrey Canyon, a Liberian flag tanker, carrying 117,000 tons of crude oil, which ran aground on the Seven Stones rocks off the Atlantic coast of Cornwall on 18 March 1967. The escaping oil polluted the sea and some 100 miles of British coastline of exceptional beauty, killed fish and birds, and eventually spread so far as also to pollute the coast of France.1 This raised in an acute form the question how far, and under what rubric of the law, a coastal state might lawfully intervene in such circumstances to deal with a foreign flag vessel. The British Government did attempt to set the oil slick on fire with bombs but without great success; they also requested an emergency meeting of IMCO,2 to consider changes in the existing law, which the British Government considered did not take adequate account of the interests of ‘countries which may have no direct interest in a ship or its cargo but the territory of which may be affected by accident to the ship’.3

(p. 818) A consequence was the Brussels Conference of 1969, which produced two new conventions: the Brussels International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties;4 and the Brussels International Convention on Civil Liability for Oil Pollution Damage.5 The first of these conventions granted to contracting states, subject to consultation with other affected states, the right to:

‘take such measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat of pollution of the sea by oil, following upon a maritime casualty or acts related to such a casualty, which may reasonably be expected to result in major harmful consequences’.

The second Brussels Convention provides for the civil liability of the shipowner for pollution damage, and that no claim against the owner for compensation shall be made ‘otherwise than in accordance with this Convention’.

A conference organised by IMCO in 1973 produced the London International Convention for the Prevention of Pollution from Ships,6 the major global convention of this kind. This applies not only to tankers and vessels over 500 tons but to other kinds of vessels including fixed or floating platforms. It has five technical annexes with regulations, and two protocols.

In the 1972 London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter an attempt was made to deal comprehensively with this dangerous problem of unregulated disposal from ships and from aircraft.8 Dumping for the purposes of the convention is defined as deliberate disposal, excluding however disposal incidental to the normal operation of ships and aircraft. Wastes are divided into three categories. First there is the ‘black list’ of Annex I which comprises very dangerous substances such as mercury, cadmium, oil, plastics and high-level radio-active wastes defined by the International (p. 819) Atomic Energy Agency (IAEA) as unsuitable for dumping in the sea. Second there is a ‘grey list’ (Annex II) of somewhat less harmful substances such as arsenic, lead, copper, zinc, organosilicon compounds, cyanides, fluorides, pesticides, scrap metal, and radio-active matter not included in the black list. Third there are all substances not included in either of the other two lists. Any dumping of black list substances is prohibited. Grey list substances may be dumped only in pursuance of a special permit issued by the authorities of the high contracting party. The third list substances may be dumped in pursuance of a general permit. Annex III necessarily sets out the factors which are to be taken into account by the authorities in the issuing of permits. In 1978 the parties to the London Convention adopted amendments to annexes dealing with the incineration of wastes at sea.9 Each party is of course under an obligation to legislate so as to give effect to the provisions of the convention. In 1983 the parties adopted a resolution for a two-year moratorium on the dumping of any radio-active waste, pending an investigation of the possible effects of such dumpings. This was renewed in 1985. The Convention does not deal with the problem of the sometimes advocated disposal of radio-active wastes by insinuation into the seabed, but the parties have agreed not to employ this means until more technical information is available on its possible effects.

In addition to these general conventions there have also been some significant regional treaties.10

§ 355  The 1982 Convention ‘General Provisions’

In addition to the above sets of conventions and agreements, there is now Part XII of the Convention on the Law of the Sea 1982 which, in 11 sections and 46 articles sets out to provide a (p. 820) general and comprehensive regime for the ‘protection and preservation of the marine environment’.1

The Stockholm Declaration 1972,2 with its 109 recommendations, had attempted to express general principles necessary for the protection of the environment. Section 1 of Part XII of the 1982 Convention, which is headed ‘General Provisions’, is in effect a transformation of Stockholm general principles into the language of a binding treaty. It begins with the general obligation of states to protect and preserve the marine environment;3 most interestingly, it then goes on to a restatement of the right of sovereignty over resources4 but linking it firmly with the ‘duty to protect and preserve the marine environment’;5 and then has a longer article of five paragraphs on the various measures which states ‘shall take, individually or jointly as appropriate’, which measures ‘shall deal with all sources of pollution of the marine environment’, and giving four kinds of pollution ‘inter alia’ which the measures shall be designed to ‘minimize to the fullest extent’.6 The other articles of this section deal with the ‘duty not to transfer damage or hazards or transform one type of pollution into another, and not to use polluting technologies nor to cause harmful changes by the introduction of harmful or new species’.7

Of the following sections of Part XII, Section 2 deals with various aspects of global and regional cooperation;8 Section 3 with technical assistance to developing states and giving them preferential treatment in allocation of any ‘appropriate funds’;9 Section 4 has some very general provisions about monitoring.10

§ 356  The 1982 Rules and Regulations

Section 5, headed ‘International Rules and National Legislation to prevent, reduce and control pollution of the marine environment’ states a number of obligations of great importance. It requires states to adopt laws and regulations ‘to prevent, reduce and control’ the several sources of pollution described in these articles:1 pollution from land-based sources, including rivers, estuaries, pipelines and outfall structures; from seabed (p. 821) activities subject to national jurisdiction; from activities in the Area;2 by dumping; and from vessels (including a right for coastal states, ‘in the exercise of their sovereignty within the territorial sea’, to adopt laws and regulations to prevent, reduce and control pollution from foreign vessels, ‘including vessels exercising the right of innocent passage’, though such laws and regulations are not to hamper innocent passage). Moreover, there is a provision3 giving considerable powers to ‘port States’ in respect of the observance of standards and requirements by vessels navigating within the territorial sea; and finally pollution from or through the atmosphere.4

§ 357  Enforcement of the 1982 regime

Section 61 deals with enforcement and is essentially a list of appropriate jurisdictions for dealing with particular kinds of pollution. Some of the provisions in Section 6 are interesting not only for pollution problems, but also in relation to the general question of jurisdiction. For instance the eight paragraphs of Article 217, headed ‘Enforcement by Flag States’, is in essence a list of situations in which the flag state is required to exercise its undoubted jurisdiction over flag vessels. This is to ‘ensure compliance by vessels flying their flag or of their registry with applicable international rules and standards, established through the competent international organization or general diplomatic conference’, as well as the flag state’s own ‘laws and regulations adopted in accordance with this Convention …’. This lending of a treaty obligation to international rules and standards established (‘through’ the competent international organisation in this instance, presumably the IMO) is an interesting innovatory technique for the development of the law.

The article on enforcement by port states2 provides for port state investigations, or proceedings where the evidence so warrants, over a vessel ‘voluntarily within a port or at an off-shore terminal’, in respect of ‘any discharge from that vessel outside the internal waters, territorial sea or exclusive economic zone of that State in violation of applicable rules and standards’.3 No proceedings are to be instituted ‘in respect of a discharge violation in the internal waters, territorial sea or exclusive economic zone of another State unless requested by that State, the flag State, or a State damaged or threatened by the discharge violation, or unless the violation has caused or is likely to cause pollution in the internal waters, territorial sea or exclusive economic zone of the State instituting the proceedings’.4 There are further provisions in the same article concerning investigations. This dense and ingenious formula is clearly a compromise between the interests of preventing pollution and the interests of the freedom of navigation. It provides very considerable powers of enforcement by the authorities of a port a (p. 822) vessel has voluntarily entered — ie normally a port it was scheduled to enter in any event in the course of its appointed voyage — and thereby avoids the other possibility of allowing a state which supposes its coast is threatened by pollution, from forcing a suspected vessel in course of innocent passage or transit into one of its ports. It should be added that the jurisdiction under the entire Article, is subject to Section 7 of Part XII, which lays down certain ‘safeguards’ to be described below.

Article 218 is to be read along with Article 220, which does indeed provide for enforcement by coastal states, in respect of a violation that has ‘occurred within the territorial sea or the exclusive economic zone of that State’. Paragraph 1 provides for this only against a vessel that ‘is voluntarily[5] within a port or at an off-shore terminal’ of that state. So, thus far, the vessel in passage or transit is not put in danger of being required to enter a port which for one reason or another it has planned not to enter.

Paragraph 2 of Article 220 goes rather further in conceding a measure of jurisdiction to the coastal state, in the case of ‘a vessel navigating in the territorial sea’ of that coastal state, and where there are ‘clear grounds for believing’ that the vessel, ‘during its passage therein’, has ‘violated laws and regulations of that State adopted in accordance with this Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels’. In this case the coastal state may ‘undertake physical inspection of the vessel relating to the violation and may, where the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws, subject again to the safeguards in Section 7 (and also paragraph 7 of Article 220 which requires the vessel to be allowed to proceed if compliance with certain appropriate procedures for bonding or other appropriate financial security has been assured). There is, however, a further qualification of this jurisdiction, of some importance. Any action of the coastal state under Section 7 is to be ‘without prejudice to the application of the relevant provisions of Part II, section 3’ of the Convention. This is the section of the Convention which deals with innocent passage. The effect of this laconic but obviously significant qualification is perhaps not wholly free from doubt. The right of innocent passage is there defined as being the right to traverse the territorial sea without calling at a port or roadstead, or proceedings to or from internal waters or a call at a port or roadstead (Article 18.1); which is precisely what is to be interfered with under Article 220.2. Nevertheless, Article 19(h) of Section 3 also defines as non-innocent passage ‘any act of wilful and serious pollution contrary to this Convention’. It would seem, therefore, that the effect of this ‘without prejudice’ clause of Article 220.2 is that the coastal state taking action under that paragraph, against a suspected vessel traversing its territorial sea, is put under a legal risk. If the vessel is after all not in fact guilty of a ‘wilful and serious’ pollution contrary to the Convention, it would appear that the coastal state is under risk of having unjustifiably interfered with innocent passage.

Paragraph 3 of Article 220 is concerned with the different case where ‘there are clear grounds for believing’ that a violation of pollution rules and standards has been committed in the exclusive economic zone; here the coastal state is limited (p. 823) to requiring 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’. (Paragraph 5 is an ancillary provision dealing with the case where the vessel refused the information, and then allowing ‘physical inspection’ subject to certain conditions.) These provisions of paragraphs 3–5 are obviously in contemplation of an exercise of port state jurisdiction under paragraph 1 of Article 220.

Nevertheless, paragraph 6 goes on to permit the coastal state to ‘institute proceedings, including detention of the vessel, in accordance with its laws’, where there is ‘clear objective evidence’ of a violation in the exclusive economic zone or in the territorial sea, ‘resulting in a discharge causing major damage or threat of damage to the coastline or related interests of the coastal State, or to any resources of its territorial sea of exclusive economic zone’.6

§ 358  Enforcement and transit passage

Article 233, the final article of Section 7 concerning safeguards, provides a rule for the transit regime of ‘straits used for international navigation’. Article 42 of Part II, Section 2 — the section dealing with transit rights through such straits — allows that, subject to conditions there stated, coastal states on such straits ‘may adopt laws and regulations relating to transit passage through straits’ in respect inter alia of:

‘the prevention, reduction and control of pollution, by giving effect to applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances in the strait’.

Foreign ships in transit are of course to comply with such laws and regulations.1

Article 233 deals with this question of violation of pollution laws and regulations by vessels in transit in a fashion that does not wholly dispense with doubts as to its purport. There are two sentences. The first says simply that, ‘Nothing in sections 5, 6 and 7 affects the legal regime of straits used for international navigation’. This seems clear indeed and in terms which cannot be qualified without an element of contradiction. Nevertheless, the second sentence begins (p. 824) with the word ‘however’, and provides that, if a ‘foreign ship’ (there is here no mention of aircraft), not one having jurisdictional immunity, has ‘committed a violation’ of the laws and regulations referred to in Article 42.1(a) and (b) (ie (a) in respect of safety of navigation and regulation of maritime traffic, and (b) the prevention, reduction and control of pollution from oil and other noxious substances), thus causing or threatening ‘major damage to the marine environment of the straits’, then the bordering states ‘may take appropriate enforcement measures and if so shall respect mutatis mutandis the provisions of this section’.

It remains to mention the remaining sections of Part XII (Sections 8, 9 and 10) each of which consist of only one article. Section 8 is important, dealing as it does with the special case of ice-covered areas.2 A well-known example is the Arctic waters of Canada. The special hazards of such areas are well-known and established; for instance that the prevailing low temperatures delay, or even permanently prevent, the biological degrading of pollution which occurs relatively readily in temperate waters. There is accordingly danger of ‘irreversible disturbance of the ecological balance’.

§ 359  Responsibility and liability

Section 9, Article 235 states in general terms the responsibility and liability of states in the matter of the protection and preservation of the marine environment. Paragraph 1 of Article 235 asserts:

‘States are responsible for the fulfilment of their international obligations concerning the protection and preservation of the marine environment. They shall be liable in accordance with international law.’

The point of this asseveration is presumably indicated by the use of the term ‘States’, and not merely ‘contracting parties’: the responsibility and the liability, in short, are stated in terms of general law and not only of contractual obligations. This statement though refers to ‘the fulfilment of their international obligations’ and there may indeed be a question as to precisely what, and how much of Part XII, creates international obligations for non-parties.

Paragraphs 2 and 3 of Article 235 are drafted in ecumenical terms, and make the link between international obligations and municipal law ‘recourse’ thereby ensuring ‘prompt and adequate compensation’ for all damage, ‘caused by pollution of the marine environment by natural or juridicial persons under their jurisdiction’.

Furthermore, in para 3, it is provided that, with the object of assuring ‘prompt and adequate compensation’ or other relief of all such damage, states shall co-operate in the implementation of existing international law and the further developing international law, appropriate criteria, and procedures for payment (p. 825) of adequate compensation, ‘such as compulsory insurance or compensation funds’. These paragraphs are interesting in so far as they recognise strongly the importance of an adequate and appropriate linkage between international laws and regulations, and municipal law and regulations if this kind of international law, ie international law ultimately concerned with the behaviour of individual persons, is to be adequately and justly enforced. Thus these provisions of Article 235 seem also to assume that even in so far as this part of the Convention may create general obligations, this can only be obligations for states, and not for individuals. Hence some movement of a state’s municipal law is necessary for the adequate implementation of these international obligations.

§ 360  Sovereign immunity

Section 10, Article 236 is confined to making the necessary reservation that ‘the provisions of the Convention regarding the protection and preservation of the marine environment’ (a wider category than those only of Part XII) do not apply to warships and others enjoying sovereign immunity.1 However, ‘each State’ is to ensure ‘so far as is reasonable and practicable’ that warships, naval auxiliaries, and other vessels or aircraft enjoying immunity, ‘act in a manner consistent’ with the Convention.2

§ 361  Legal status of Part XII

Part XII of the 1982 Convention presents the question of how far its provisions are a statement of existing general law and how far they consist of treaty obligations binding only on parties and only when the Convention comes into operation. This is a question on which there is a considerable margin for divergent views, and on which answers may change in course of time; for much might depend upon the trend of developing state practice. It may, however, be stated with some assurance that the ‘general’ section at the beginning is a statement of general principles of ecumenical value. And it may reasonably be supposed that some other sections, for example much of Sections 5 and 6, smack so evidently of compromise and the ‘package deal’ that they could forcibly be argued to be essentially contractual in legal nature. Even if this be so, there would still be room for a view perhaps that certain of these provisions have a wider validity. But to attempt any more precise answers on this question would need to be based upon a more detailed analysis of both the provisions and their legislative history, and the actual practice,1 than is possible in a general text book of this kind. All that is possible therefore is to call attention to the problem.

Footnotes:

See Paris Convention for the Protection of Marine Pollution from Land-based Sources 1974, TS No 64 (1978); ILM, 13 (1978), p 352. See Meng Qing-nan, op cit.

UNTS, 237, p 3; TS No 54 (1958); Cmnd 595. There were amendments in 1962, 1969 and 1971.

See the British Home Office Report, The Torrey Canyon, Cmnd 3246 (1967); Gill, The Wreck of the Torrey Canyon (1967); Brown, Current Legal Problems, 21 (1968), p 216ff; BPIL (1967), pp 90–92.

Inter-Government Maritime Consultative Organisation, created by a convention of 1948 (UNTS, 289, p 48); now IMO (International Maritime Organisation). See Juda, ICLQ, 26 (1977), pp 558–84.

Cited by Juda, loc cit, p 562; ref C/ES 111/3.

UN Juridical YB (1969), p 166; TS No 77 (1975); Cmnd 6056; AJ, 64 (1970), pp 471–80. See also the 1973 London Protocol (UN Juridical YB (1973), p 91; TS No 27 (1983); AJ, 68 (1974), p 577) which extends the right of intervention to pollution by substances other than oil; and the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 (London, Mexico City, Moscow and Washington) — a convention requiring prohibition of dumping under certain conditions: ILM, 11 (1972), p 1294; AJ, 67 (1973), p 626; TS No 43 (1976).

UN Juridical YB (1969), p 174; TS No 106 (1975); Cmnd 6183. Amended by the Draft London Protocol of 1984 (ILM, 23 (1984), p 177; IMO Doc LEG/CONF 6/66, Cmnd 9927). See the Brussels Convention of 1971, which established a fund for oil pollution compensation where full compensation has not been recoverable under the main convention of 1969; and the 1976 amending Protocol (ILM, 16 (1977), p 621), and the 1984 amending Protocol (IMO Doc LEG/CONF 6/67, Cmnd 9926); and the 1976 London Protocol amending the Civil Liability Convention 1969 (ILM, 16 (1977), p 617); also the 1976 London Convention relating to pollution from exploitation of seabed mineral resources (ILM, 16 (1977), p 1450). For London Protocols and the Amoco Cadiz accident, see Jacobsen and Yellen, Journal of Maritime Law and Commerce, 15 (1984), pp 467–88; Kbaier and Sebek, Marine Policy, 9 (1985), pp 269–79; Kiss, Clunet, (1976), 112, pp 575–89.

ILM, 12 (1973), pp 1319–43; see also the 1978 amending Protocol, dealing with such matters as segregated ballast tanks, Cmnd 5748. For the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal 1989, see Hackett, American University Journal of International Law and Policy, 5 (1990), pp 291–323.

UKTS, 43 (1976). It came into force 1975.

ILM, 18 (1979, pp 10–16.

10  See Bonn Agreement concerning Pollution of the North Sea by Oil 1969 (a cooperation regime, UNTS, 704, p 3; TS No 78 (1969), replaced by the Bonn Agreement of 1983, Cmnd 9104; the Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Area 1974 (a convention establishing a Baltic marine Environment Protection Commission to administer and enforce it), ILM, 13 (1974), p 546; the Oslo Convention 1972 for Prevention of Marine Pollution by Dumping from Ships and Aircraft (applies in the North Sea and North-East Atlantic regions), TS No 119 (1975); the Nordic Convention on the Protection of the Environment, Stockholm 1974 (ILM, 13 (1975), p 591); the Paris Convention for the Prevention of Marine Pollution from Land-based Sources 1974, a treaty complementing the Oslo Convention, TS No 64 (1978), ILM, 13 (1974), p 352; the Barcelona Convention for the Protection of the Mediterranean Sea against Pollution 1976 (ILM (1977), 15, p 290) and 4 Protocols, compulsory for parties to the 1976 Convention — Athens 1980 (ILM, 19 (1977), p 869) and Geneva 1982; the Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution 1978, ILM, 17 (1978), p 511; the Abidjan Convention for Cooperation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region and Protocol 1981, ILM, 20 (1981), p 746; the Lima Convention for the Protection of the Marine Environment and Coastal Area of the South East Pacific and Agreement 1981, UN Doc UNEP-CPPS/1G 32/4; the Jeddah Convention for the Conservation of the Red Sea and Gulf of Aden Environment and Protocol 1982; the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, with Protocol 1983, Cartagena de Indias, ILM, 22 (1983), p 227.

For North Sea generally see Freestone and Ijlstra (eds), The North Sea. Perspectives on Regional Cooperation, suppl to International Journal of Estuarine and Coastal Law; also Freestone, The North Sea. Bask Documents etc. (1991). For Baltic Sea, see Fitzmaurice op cit.

Article 237 (Section 11) recognises the existence of the ‘special conventions and agreements’ in respect of this matter, and states that Part XII of the Convention is without prejudice to ‘the specific obligations’ there assumed, and that these should be carried out ‘in a manner consistent with the general principles and objectives of this Convention’.

See § 125.

Article 192.

See § 106.

Article 193.

Article 194.

Articles 195 and 196.

Articles 197–201.

Articles 202 and 203.

10  Articles 204–206.

Articles 207–212. It is to be noted that in respect of pollution from land-based sources (Art 207) states shall adopt laws, etc ‘taking into account internationally agreed rules, standards and recommended policies and procedures’; whereas in respect of pollution by dumping (Art 210), ‘National laws, regulations and measures shall be no less effective in preventing, reducing and controlling such pollution than the global rules and standards’; and in relation to pollution from vessels (Art 211), such laws and regulations ‘shall at least have the same effect’ as ‘generally accepted international rules and standards’.

See § 350.

Article 211.3.

Article 212.

Articles 213–222. See also the IMO Convention 1990 on Oil Pollution Preparedness, Response and Cooperation, ILM, 30 (1991), p 735.

Article 218.

Article 218.1.

Article 218.2.

Article 220.1.

There are two further articles in Section 6. Article 221 deals with the rights of states to take ‘measures to avoid pollution arising from maritime casualties’, and is not rendered clearer from being drafted as a proviso, introduced by the words ‘Nothing in this part shall prejudice the right of States …’. Article 222 is concerned with enforcement with respect to pollution from or through the atmosphere.

Section 6 needs to be read together with Section 7 on ‘Safeguards’, which has 11 articles dealing with several important questions of detail in regard to enforcement procedures, such as facilitating the hearing of witnesses, the kind of person who may take enforcement measures, avoidance of unreasonable delays, non-discrimination, recognised rights of an accused, notifications to other concerned states, and so forth. Article 228 is important as providing for suspensions and restrictions on the institution of proceedings where, subject to conditions laid down in the article, the flag state itself institutes appropriate proceedings against the vessel.

Article 42.5 says that the flag state of a ship or aircraft entitled to sovereign immunity, which ‘acts in a manner contrary to such laws and regulations or other provisions of this Part shall bear international responsibility for any loss or damage which results to States bordering straits’. This seems to contemplate that such laws and regulations will be enforced against ships and aircraft not so entitled to immunity, and which offend against such laws and regulations.

Article 234 states:

‘Coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence.

The words in which the vessels enjoying immunity because used on government non-commercial service are described differ somewhat from those used elsewhere in the Convention. In Art 96 (Part VII on the High Seas) they are described as ‘ships owned or operated by a State and used only on government non-commercial service’ (see also Art 32), but in Art 236 as ‘vessels or aircraft owned or operated by a State and used, for the time being, only on government non-commercial service’.

For the Part XII, Section 11 see § 355, n 1.

For the practice of the European Community in this regard see Morvan in Essays on the New Law of the Sea 2 (ed Vukas, 1990), pp 143–70.