THE LAW OF THE SEA

POLLUTION PREVENTION REGULATIONS IN GENERAL

Section: Part XII, Articles 192-237

Full text with footnotes

This Part represents a constitution for the prevention of pollution of the seas on a global, regional, and local basis. Any obligations assumed by states under special conventions and agreements related to the protection and preservation of the marine environment are to be carried out in a manner consistent with the general principles and objectives of the Convention; consequently, these provisions should not be viewed solely as a text of law, as they are also a political document. This thread of thought can be found in many of the provisions, which require the states to undertake efforts to create a reliable and effective global system for the protection of the marine environment by means of international co-operation, including technical assistance and environment observation, and the application of international regulations and standards.

All states have the obligation to protect and preserve the marine environment and can be held liable for failure to fulfil their obligations, e.g., if pollution spreads beyond the area where a state exercises its sovereign rights. They are obliged to take measures to reduce to the fullest possible extent pollution from all sources, whether land-based sources, sea-bed activities, dumping, the atmosphere, or vessels; furthermore, plans must be made to prevent accidents and deal with emergencies that may occur during the operation of vessels and installations and devices used for exploration and exploitation. However, these provisions affect mostly the coastal states and the flag states; only those provisions dealing with the Area, dumping, and the atmosphere (which includes air navigation) affect all states, as these fields are either partly or wholly related to the high seas. A corollary to these provisions is the granting of investigative power to port states, which may even initiate proceedings in respect of unlawful discharge beyond their general jurisdiction against any vessel, which is voluntarily within a port or at an off-shore terminal of the port state.

The main responsibility for the protection of the marine environment lies with the states, which have a coastline. These states, which enjoy the benefits of being granted sovereign rights over living and non-living resources within the limits of an exclusive economic zone and a continental shelf, have also been given the corresponding duty to protect and preserve the marine environment within these areas. Significant in this context are the duties not to transfer damage or hazards, to provide necessary information, and control land-based sources of pollution, sea-bed activities, and vessels. The Convention distinguishes among varying levels of intensity of involvement, e.g., "taking into account," "not less effective," and "giving effect." This results from the Conference's aim of unifying pollution regulations on a global basis without overburdening the capabilities of developing states. However, the urgency of controlling marine pollution also caused the Conference to provide for scientific and technical assistance and preferential treatment for developing countries in their efforts to prevent, reduce, or control pollution and its effects on the environment.

FRAMEWORK FOR POLLUTION PREVENTION

Section: Part XII, Articles 192-237

The general application of the Convention: The Provisions of the Convention are without prejudice for other obligations assumed by the states to prevent pollution; however, all obligations are to be earned out in a manner consistent with the general principles and objectives of the Convention (Art 237).

Reprint from 1988 Edition

States are responsible

and liable with regard

to their international

Obligations (Art. 235)

GENERAL

OBLIGATION

States are to cooperate

on global and regional

Basis(Art. 197-201)

States have the

obligation to protect

and preserve the

marine environment

(Art 192) and must incorporate international law to various degrees, see

column. Legislation

below

States are to monitor

and report

(Art. 204-206

States must not

transfer hazard or

transform one type of

pollution to another

(Art. 195-196)

States must render technical

assistance to developing states

(Art. 202)

PARTICULAR OBLIGATION

Source of Pollution

Legislation

Art. 207-212, 237

Responsibilty and

Liability General: Art 304

Enforcement

Art. 213-222

Land-based source

207, State n

(taking into account)

213, Coastal state

Art 235

Sea-feed'Bctivities

rerntonal Sea

Exclusive Economic

Zone

208(1), Coastal state

208(2-3), States

(not less effective)

214, Costal state

Art. 235

Area

209(1), Authority

Annex III, Art 17

209(2), States

(not less effective)

215, Authority in

accordance with Part

XI, Annexffl,Art.47

Art 235

Dumping

210, States

(not less effective)

216(a), Coastal State

216(b), Flag state

216(c), Any state for

loading of wastes or

other matters

occurring in territory

Art. 235

Vessel

194, 3, States

211, 2, Flag State

(at least to the same

effect)

211, 4, Coastal state

211, 5, Coastal state

(giving effect)

211, 6, Coastal State

For details, including

safeguards, see next

two diagrams

Warship immunity,

Art 236

Art 232, 235-236

Atmosphere

212, States

(taking into account)

222, States

Art 235

Ice-covered area

234, Coastal state

(non-discriminatory)

Art. 235-236

POLLUTION LEGISLATION APPLICABLE TO VESSELS

Section: Part XII, Articles 192-237

ARTICLE 211

Whereas a flag state grants a vessel its nationality and therefore exercises sovereignty on board, a coastal state enjoys sovereignty in its territorial sea and jurisdiction in regard to pollution matters in the exclusive economic zone. During the last few decades, coastal states have become increasingly reluctant to accept common flag state jurisdiction and the consequent problems of enforcement and have sought more influence and control in pollution matters related to navigation, effective exercise of jurisdiction, and rights for prevention measures. The Convention therefore obliges shipping states to establish international rules and standards through competent organizations or diplomatic conferences. As far as agreements and standards have been established and practiced, they form the backbone of a legal framework for prevention of pollution. The Convention provisions in this Part contain the general principles, which the legal framework is to apply and according to which it will, if necessary, be re-examined from time to time.

The basic principles of the 1982 Convention concerning pollution matters provide that the primary responsibility for establishing measures for the prevention of pollution by vessels lies with the flag state. The flag state is to adopt laws and regulations for the prevention of pollution which are to have at least the same effect as generally accepted international rules and standards established through the competent organization (competent organization here means International Maritime Organization - IMO -) and take measures to ensure to the fullest possible extent the safety of operations at sea, including the regulation of design, construction, equipment, operation and manning of vessels, prevention of accidents, and prevention of intentional and unintentional discharges, and is to provide emergency measures. As the coastal states which cooperate in regional pollution prevention agreements may require information from foreign vessels navigating in their territorial sea, the flag state is to ensure that the master of a vessel flying its flag furnishes information as to whether his destination is a port of that region and, if so, whether his ship complies with port entry requirements. There is further the obligation to render information required in order to determine if a violation has occurred.

In exercising sovereignty in the territorial sea, the coastal states can take measures in regard to accidents, emergencies, safety of operations and discharge, and so on, except with respect to design, construction, manning, or equipment of foreign vessels on innocent passage. National measures may not hamper the right of innocent passage through the territorial sea. Where a ship is exercising its right of transit passage through straits, the bordering states may adopt laws only in respect to discharge of oil and similar substances and can only in part apply the provisions of Part XII. Archipelagic states, on the other hand, can apply Part XII for vessels in archipelagic sea lane passage, but in adopting laws have to keep in mind that the regulations for sea lane passage refer only to discharge.

For its exclusive economic zone, a coastal state may adopt only laws which give effect to generally accepted international rules, but may also tighten such rules for a particular, clearly defined area of the exclusive economic zone and in ice-covered areas.

GENERAL JURISDICTION FOR VESSELS

Section: Part XII, Articles 192-237

Note: (1) The regulations of the Convention for the prevention of pollution do not apply to

warships and other vessels owned by governments and in non-commercial service. However, states are to ensure that such ships act, as far as reasonable and practicable, in a manner consistent with the Convention (Art. 236).

(2) The provisions of the Convention do not affect

-the institution of civil proceedings in respect of any claim for loss or damage resulting from pollution of the marine environment (Art. 229), or

-the rights of states to take and enforce measures to, avoid pollution arising from maritime casualties (Art. 221).

STATES - Are obligated to protect and preserve the marine environment (Art. 192)

- Are to take measures to prevent pollution by vessels (Art. 194, Subpara. 3(b))

THE COASTAL STATE

- is sovereign in the territorial sea (Art 2)

- has jurisdiction in marine

environment matters (Art 56,

Subpara 1(b)(iii), Art 192)

- deals with emergencies and

safety of operation of vessels

(Art 194, Subpara 3(b)), but not for

construction, etc (Art 21, Para 2)

THE FLAG STATE ,

- has in general jurisdiction and control m

administrative, technical, and social

matters (Art 94, Para 1)

- takes pollution measures for emergencies,

design, etc (Art 194, Subpara 3(b)

- must adopt pollution regulations

which have at least the same effect as that

of international rules (Art 211, Para 2)

must ensure at all times the compliance with applicable international rules and

standards (Art 217, 194, Subpara 3(b), 211)

effective enforcement (Art 217, Para 1)

- detain vessel which is not

seaworthy

(Art 217, Para 2)

- ensure inspection

(Art 217, Para 3)

- conduct investigations,

institute proceedings

(Art 217, Para 4)

- information upon request (Art 217, Para 5)

- provide adequate penalities

(Art 217, Para 8)

- ensure that masters give adequate information

(Art 211, Para 3)

- air pollution matters (Art 212, Para 1) - ensure that masters give information whether pollution

has occurred (Art 220, Para 3)

High Seas

Port State Enforcement

(218)

Exclusive

Jurisdiction

(92, (1))

Exclusive

economic

zone

- May adopt laws, giving

effect to generally accepted

international rules and

standards (211, (5)) - may

adopt special mandatory

measures for clearly denned

areas (211, (6), 234)

- Exclusive jurisdiction

(58, 87-94) if compatible

with other provisions

of the Convention -

(See Art 228)

Territorial Sea

- may in the exercise of its

sovereignty adopt laws

which do not hamper

innocent passage

(211, (4), 21, (1)(f))

- Not with respect to

design,construction,

etc (21, (2))

flag state can enforce

physically its general

jurisdiction through

coastal state only

(with respect to

Innocent passage)

See Art 27 Subpara 1(c))

Archipelagic

Waters

Sea lane passage (53, 54, 42, 1(b))

Straits

- are to give effect to

international pollution

regulations regarding

discharge (Art 42, Subpara 1(b))

- further pollution regulations

by special greements

(Art 43, Subpara (b)) as

Art 207-232 not

applicable (Art 233)

See above, Territorial

Sea

Archipelagic Sea

Lanes

- are to give effect to

internationalb pollution

regulations regarding

discharge (Art 42,

Subpara 1(b), 54)

See above Territorial

Sea

Inland waters,

ports

These waters are not subject to the

Convention

See above Territorial

Sea

ENFORCEMENT OF POLLUTION LAWS APPLICABLE TO VESSELS

Section: Part XII, Articles 192-237

ARTICLES 217-233

The provisions of enforcement are carefully designed to balance the opposing interests of the flag states and the coastal states. Just as the flag state has primary legislative jurisdiction over its vessels, it also bears the primary responsibility for ensuring that its vessels comply with international law. In the event of a violation, the flag state is to institute investigations and proceedings. Penalties provided by the laws and regulations of the flag state must be sufficiently severe to discourage violations, wherever they might occur. Although official vessels are not subject to these Convention provisions, similar measures are to be implemented for such ships by each state, which is also liable for any damage caused by its vessels.

The coastal state, on the other hand, has been vested with rights (in varying degrees) to enforce pollution laws, although safeguards have been built in to ensure that this power can be exercised only to a limited extent. The measures, which can be taken, depend on the exact nature of the violation with regard to two sets of factors:

1) Location of violation: territorial sea, exclusive economic zone; location of vessel: territorial sea, exclusive economic zone, voluntarily in port

2) Intensity of violation: substantial discharge, major damage, any violation; reasons for acting: warranted by evidence, clear grounds for believing.

The measures the coastal state may take include request for information, physical inspection, proceedings, and even detention . With some generalization, it can be said that the coastal state jurisdiction is strongest when the vessel is voluntarily in port and weakens with increasing distance of the location of the violation from the coast (zone by zone) and the impact of the damage or the threat of damage.

All measures must be taken in compliance with the safeguards given in Articles 223 to 233, which prohibit undue delay of a foreign vessel, excessive physical inspection, and general disregard for accepted international rules and provide for the release of vessels, subject to reasonable procedures such as bonding or appropriate financial security. If a detaining state has not released a vessel, the question is subject to compulsory dispute settlement.

Finally, coastal states taking measures have obligations to other affected states, particularly the flag state, and to international organizations. The flag state must be notified of measures taken (although not in all circumstances), and all official reports concerning the measures must be submitted to the flag state. The flag state can institute proceedings itself, thus suspending -with certain exceptions - the proceedings in the coastal state. If a vessel has been detained, e.g., due to lack of seaworthiness, the flag state must be informed promptly.

States are liable for damages or loss resulting from such measures if the measures are unlawful or unreasonable. This provision also applies to a port state, which investigates or institutes proceedings against a vessel based on an allegation of unlawful discharge on the high seas or in zones of other states (on request).

Investigation reports are to be transmitted to the flag state or the coastal state upon request and instituted proceedings suspended.

GENERAL ENFORCEMENT CONCEPT

Section: Part XII, Articles 192-237

ARTICLES 217-220 (ENFORCEMENT): 223-233 (SAFEGUARDS)

Abbreviations TS = Territorial Sea, EEZ = Exclusive Economic Zone

COASTAL STATE: Rights and Obligations

FLAG STATE- Rights and Obligations

General

- Promptly notify flag state of any measures

taken and submit reports (Art. 231)

- Minimum standards of proceedings (Art 223)

- Enforcement by officials only (Art. 224)

- Safety of navigation must not be endangered

(Art 225)

- Foreign vessels may not be discriminated

(Art 227)

- Liability for unlawful measures (Art. 232, 304)

- Release of detained vessels on appropriate

security (Art 220(7), 226(l)(b))

- Ensure compliance of vessels

with international law (Art. 217) see.

previous layout

- Must be informed (in cases of

proceedings from matters in TS) and

given official reports (Art 218-220,231)

Must exercise penal jurisdiction and

institute investigations (Art 217 (4-8))

Information

- Vessels navigating in TS or EEZ

which have possibly committed violation

in EEZ must provide information (Art 220(3))

- Must ensure that vessels give required

information (Art 220(4))

Physical Inspection

(examination of certificates only,

for more extensive inspection, ee Art 226(l)(a))

- Vessels navigating in TS (Art 220(2)

- Vessels navigating in TS or EEZ and

substantial discharge in EEZ and

refusal to give information or

case justifies inspection (Art. 220(5))

Investigations by "port state"

- Vessel voluntarily in port and

discharge on high seas

(elsewhere, on request) (Art 218(3))

- Records on request (Art. 218(4))

Proceedings

- For possible violation by vessels voluntarily in port

(a) violation in TS and EEZ of law in accordance with

Convention (Art. 220(1))

(b) discharge on high seas and evidence to warrant

proceedings (Art 218(1)) or on request (Art 218(2))

- Vessel navigating in TS and evidence to warrant

proceedings (Art 220 (2))

- Vessel navigating in TS or EEZ and major damage or threat

of such in EEZ (220(6))

- Suspension (Art 228)

If violation beyond TS, proceedings to be suspended if flag state institutes

proceedings unless e.g. major damage in EEZ

- Port state proceedings (Art 218) to be suspended on request of affected

coastal state (Art. 218(4); subject to Art 228)

- Right of attendance (Art 223)

Detention

- Vessel navigating in TS and evidence so warrants

- Navigating in TS or EEZ and major damage or threat of

such in EEZ (Art. 220(6))

- Violation affecting the seaworthiness of vessel (Art 219,

226(1)(c))

- Release of vessels (Art

226(l)(b-c), 220(7), 292)

- Prompt notification (Art. 226(l)(c),

231)

Penalties

- Only monetary penalties can be imposed (Art 230)

except in cases of wilful and serious act of pollution in

TS (Art 230(2))

Suspension in case of violation beyond

TS (see above: Proceedings) (Art, 228)

Maritime casualties

- Take measures (Art. 221)

PORT STATE ENFORCEMENT (ARTICLE 218)

1st Condition: Vessel must be voluntarily in port

2nd Condition: There must be a violation of applicable international rules and standards

established through the competent international organization or

diplomatic conference

Discharge (as defined by the Convention for the Prevention of Pollution from Ships (MARPOL), 1973) means, in relation to harmful substances or effluents containing such substances, any release howsoever caused from a ship and includes any escape, disposal, spilling, leaking, pumping, emitting, or emptying (Three exceptions related to dumping, activities in the Area, and scientific research are not given here.)

Abbreviations TS = Territorial Sea, EEZ = Exclusive Economic Zone

PROCEEDINGS Where evidence so warrants

Location of

Violation

Location of Damage or

Threat of Same

Basis for Institution

of Action

Suspension

Any place

Request of flag state

Any place

Art 228

High seas

Rights of port state

Art 228

Internal waters,

TS, or EEZ of

foreign state

High seas or

Affecting the internal

waters, TS or EEZ of

port state

Rights of port state

Art 228

Internal

waters, TS, or

EEZ of any

state

In internal waters, TS,

or EEZ of another state

Request of affected

or threatened state

Art 218(4)

(Art 228)

Internal waters,

TS, or EEZ of

a state

Request of state

where violation

occurred

Art 218(4)

(Art 228)

INVESTIGATION: Believed to have occurred in, caused, or threatened damage to

Any place

Request of flag state

High seas

Rights of port state

Internal waters, TS, or EEZ

Request of state where

violation occurred

Internal waters, TS, or

EEZ

Upon request of

affected state

Records of investigation

are to to be transmitted

to flag state or state

requesting action

Art 218, Para 4

COASTAL STATE ENFORCEMENT (ARTICLE 220)

Location of

Vessel

Violation

Voluntarily

in port

(Art 220(1))

EEZ

Applicable Law

Type of charge or facts

Measures

Any violation

Proceedings

1) Clear grounds for

belief, but without

prejudice to right

of innocent passage

2) Where evidence

so warrants

- Physical inspection

(Art 226(l)(a)) or

- Further physical

inspection

(Art 226(l)(a)(i-iii)

- Proceedings

- Detention

(Art. 220(2))

Laws and regulations

of coastal state

- in accordance

with the

Convention (Art.

21 (2)(f), Art

211(4-7), Art 234)

- applicable

international rules

and standards

EEZ

(Art. 220(3))

EEZ

International rules

and standards

(or national law

conforming with or

giving effect to)

Clear grounds for

belief

Give information as

listed in Art 220(3)

- Identity

- Registry

- Last port

- Next port

- Information in

respect to incident

TS or

EEZ

(Art. 220(5))

EEZ

International rules

and standards

(As above)

Clear grounds for

belief

and

substantial discharge

causing or

threatening

significant pollution

and

vessel has refused to

give information

information supplied

obviously incorrect

Physical inspection

(Further physical

inspection (Art.226(l)(a))

or EEZ

(Art. 220(6)

EEZ

International rules

and standards

(As above)

Clear objective

evidence and

discharge is

- causing major damage

- or threat of major

damage to

- coastline or

- resources of TS/EEZ

and

provided that

evidence so warrants

- Proceedings

- Detention

(Release Art.

220(7))

EEZ

(Art. 220(8))

EEZ

(clearly

defined

area)

National law giving

effect to generally

accepted rules (Art.

211(5))

Applicable in cases of

Art. 220(3-6)

accordingly

Measures accordingly

(Art. 220(3-6))