Enforcing International Maritime Legislation on Air Pollution through UNCLOS

Jesper Jarl Fanø

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509927784
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book explores the scope and applicability of the United Nations Convention on the Law of the Sea (UNCLOS), relating to the enforcement of international maritime legislation on air pollution. It focuses on enforcement of Annex VI of the International Convention for the Prevention of Pollution from Ships (MARPOL Annex VI) and the strengthened global sulphur limit which comes into force in 2020. The first chapters in Part I provide an overall introduction to relevant regulations of MARPOL Annex VI, UNCLOS, Port State Control (PSC), the EU Sulphur Directive and basic jurisdictional principles of international law. Part II analyses the amplified enforcement and notifying obligations of UNCLOS chapter XII placed on flag States and the broadened jurisdictions for port and coastal States to enforce. This includes extraterritorial enforcement by port States on the high seas and how overlapping jurisdictions are resolved. These theoretical discussions on jurisdiction are tied to practical applications pertaining to PSC and sanctioning. Part III builds upon the conclusions of Part II in relation to the enforcement of other legislation adopted by the International Maritime Organization (IMO), including regulations on Greenhouse Gases (GHG) which the IMO is set to adopt through its GHG Strategy. Finally, with the increased environmental challenges relating to global warming, and given the special legal status of ships, Part IV offers an analysis of whether specific IMO regulations on GHG could, in the future, be considered peremptory norms of a 'jus cogens' character, and addresses the potential legal implications.

PART I

Enforcement of Emissions Legislation through UNCLOS

1

Introduction

Legislation that lowers the permissible sulphur content in marine fuel from a maximum of 3.5% to 0.5% may appear ordinary, rudimentary and unproblematic. This is, however, far from the reality. It is not ordinary or rudimentary, as such strengthened regulation can prevent 137,000 people worldwide from facing a premature death and 7.6 million children from developing asthma.¹ Nor is it unproblematic, as some shipowners can save billions of dollars each year by not adhering to this regulatory measure.

It is therefore essential that this sulphur limit, which is regulated in Annex VI to the International Convention for the Prevention of Pollution from Ships (‘the MARPOL Convention’),² can be enforced effectively so that the global health benefits can be achieved. This obviously necessitates that shipowners who violate the regulations are not rewarded with higher profits but instead are penalised – appropriately and dissuasively.

Ships have traditionally enjoyed a special status within international law, regarding the exercising of jurisdiction over them. This distinct status has led to speculation as to whether the strengthened sulphur regulations can be enforced, and by whom, particularly when a ship violates the rules mid-ocean, far from any State.

It is the purpose of this book to establish that the United Nations Convention on the Law of the Sea (UNCLOS)³ provides a legal basis for ensuring that the regulation of sulphur emissions by MARPOL Annex VI can be enforced effectively, regardless of where the violation occurs and which State the ship hails from.

The conclusions on enforcement through UNCLOS are also relevant and applicable for enforcing other international maritime legislation for protection of the environment, including impending legislative measures on reducing greenhouse gas (GHG) emissions from ships.

I.The Layout of the Book

This book is divided into five Parts consisting of 19 chapters.

Chapter 1 of Part I contains a brief introduction to the historic development of the MARPOL Convention and UNCLOS, the impact of sulphur pollution on human health and the potential savings for shipowners in not complying with the regulations. The challenges faced in detecting violations of and enforcing the regulations are also described.

The following chapters in Part I provide a basic introduction to the relevant regulatory frameworks of Annex VI of the MARPOL Convention (chapter 2) and UNCLOS (chapter 3). The practical enforcement of MARPOL, in accordance with UNCLOS, through Port State Control is analysed (chapter 4). The regional legislation under the European Union’s (EU’s) Sulphur Directive⁴ is also examined, as the Directive has strong ties to MARPOL Annex VI (chapter 5). The final chapter of Part I describes the basic jurisdictional principles of international law and how these relate to a State’s enforcement of international regulations (chapter 6).

Part II of the book contains a detailed analysis of the specific obligations and extended rights of different States to enforce rules for the protection and preservation of the marine environment, such as MARPOL Annex VI, in accordance with the special provisions of part XII of UNCLOS.

Following a general introduction to part XII of the Convention (chapter 7), the analysis will focus on the extended flag State obligations referred to in article 217 of UNCLOS (chapter 8) and the extended jurisdiction for coastal States according to article 220 (chapter 9) and for port States according to article 218 (chapter 10).

This gives way to an in-depth analysis of how UNCLOS, pursuant to article 228, governs questions of overlapping jurisdiction between States when enforcing environmental regulations in accordance with the legal basis of part XII (chapter 11).

The following chapter contains a brief overview of the procedural safeguards and general principles of dispute resolution found within UNCLOS (chapter 12). The final chapter of Part II offers a conclusion on the Part II analysis, including how the regulation of sulphur in marine fuels under Annex VI can be effectively enforced, irrespective of where a violation may occur (chapter 13).

In Part III of the book, the conclusions of the analysis in Part II are applied to enforcement of other international environmental maritime regulations (chapter 14). The conclusions of Part II are also put into perspective in relation to the enforcement of the anticipated future international regulation of GHG emissions from ships (chapter 15).

Part IV attempts to look at the enforcement of specifically international GHG regulation of ships from a completely different perspective. While Parts I–III of the book have a clear focus on analysing the enforcement of emissions regulations pertaining to sulphur and GHG through the ‘classical’ jurisdictional basis found in UNCLOS, Part IV discusses whether it is conceivable that the forthcoming GHG regulations pertaining to ships can, within the foreseeable future, attain the status of legislation protecting international recognised peremptory norms, that is jus cogens norms. The principles of jus cogens and erga omnes, and the ties to universal jurisdiction, are also explained (chapter 16).

The analysis itself is based on examined case law from the International Court of Justice (ICJ) and statements from the International Law Commission (ILC), read in conjunction with international scientific reports and predictions as to the negative climate developments due to continued release of GHG (chapter 17).

Finally, discussion is made of what the legal consequences would be if international regulations ensuring the reduction of GHG emissions from ships were to be deemed legislation protecting jus cogens norms, including the applicability of erga omnes enforcement principles (chapter 18).

In the last part of the book, Part V, an overall summary and conclusion is presented (chapter 19).

II.Man-made Pollution Emanating from Ships

Man-made pollution has resulted in the contamination of oceans from discharges of oil, chemicals, plastics, invasive species and other damaging substances, with devastating consequences for fragile undersea ecosystems and all living creatures therein.

One of the most harmful forms of man-made pollution is nevertheless air pollution, because it degrades the quality of the air on which living creatures and plants are so deeply dependent. For humans, inhalation of contaminated air may lead to the development of various diseases and disorders that, ultimately, can be life-threatening.

Some forms of air pollution can also lead to global warming, extreme weather, increased UV radiation, melting of the polar ice caps and rising sea levels, which can threaten the habitations and environment needed for the existence of most living things, including human survival. Furthermore, the socio-economic costs that such pollution can inflict on a society are gargantuan.

These are all examples of direct consequences resulting from anthropogenic air pollution, which includes such pollution emanating from ships.

As the destructive effects of man-made pollution became apparent, it naturally resulted in some States unilaterally attempting to reduce pollution through various measures, including national legislative measures. Yet much pollution, including air pollution, represents the total cumulative contamination emanating from various sources on land and at sea. Therefore, many international governing bodies, especially under auspices of the United Nations (UN), haven taken initiatives to seek the reduction of global air pollution, including the International Maritime Organization (IMO), which is the UN’s specialised agency responsible for ships and shipping. These initiatives include developing international rules and regulations through multilateral agreements⁵ such as conventions and treaties.

The enforcement of IMO regulations on air pollution have, however, been the subject of much debate, as such enforcement must be carried out in accordance with basic principles of international law respecting the sovereignty and jurisdiction of all relevant States. Ships have a special place and status within international law, as distinct jurisdictions apply depending on a ship’s flag and where it sails. This area of international law is usually referred to as the law of the sea.

Such jurisdictional principles pertaining to the international law of the sea are codified in UNCLOS, and consequently any State’s enforcement of the IMO’s environmental regulations must be exercised in accordance with the jurisdictional framework of UNCLOS, particularly the provisions of part XII of the Convention.⁶

III.The IMO

The IMO was established as a specialised UN agency in 1948, in accordance with article 57 of the UN Charter. It was founded as the Intergovernmental Maritime Consultative Organization (IMCO), but in 1982 its name was changed to the International Maritime Organization.

The IMO consists of a General Assembly and several permanent committees and sub-committees addressing different maritime topics, such as safety in the Maritime Safety Committee (MSC) and legal issues in the IMO Legal Committee (LEG).

Of particular relevance to this book is the IMO’s work on regulating environmental matters in the Marine Environmental Protection Committee (MEPC) and in the sub-committee on Pollution Prevention Response (PPR). The MEPC was created in 1973 and initially focused on regulating pollution of the sea in the form of spills and discharges of oil, toxic materials and other harmful substances. Yet in recent decades the MEPC has increasingly widened its legislative scope to encompass measures on the discharge of harmful substances into the atmosphere originating from ships. This includes regulations pertaining to sulphur and nitrogen, and, most recently, taking early steps towards regulating GHG emissions, including carbon dioxide (CO₂).

IV.Development of International Maritime Rules for the Protection of the Environment

The focus of international maritime laws changed significantly throughout the 1960s and 1970s. The rules of the IMO (then IMCO) had primarily dealt with ensuring the safety of ships in relation to the dangers for passengers, crews and other vessels.⁷ But several shipwrecks during those years,⁸ resulting in significant oil spills and extensive damage to the marine environment, prompted a change in the regulatory focus of the IMO.

Developments in the construction of ships had, after the Second World War, led to their carrying more cargo, including liquid cargoes such as oil. Consequently, when such transport ships (tankers) were lost at sea, it resulted in more damage to the marine environment.

Trying to mitigate the risk from transporting such dangerous cargoes, the IMO adopted several international conventions addressing these concerns. One of the first of these conventions for protection of the marine environment against oil pollution was the International Convention for the Prevention of Pollution of the Sea by Oil (OILPOL), which entered into force on 26 July 1958.⁹ OILPOL essentially banned tankers from discharging oil within 50 nautical miles of a coast. Also, from 1969, the Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (‘the Interve...

Table of contents

• Cover
• Dedication
• Title Page
• Preface
• Acknowledgements
• Contents
• PART I: ENFORCEMENT OF EMISSIONS LEGISLATION THROUGH UNCLOS
• PART II: SPECIAL OBLIGATIONS AND JURISDICTIONS UNDER UNCLOS PART XII TO ENFORCE AIR POLLUTION REGULATIONS
• PART III: ENFORCEMENT OF EXISTING IMO REGULATIONS AND THE IMO GHG STRATEGY
• PART IV: CAN IMO’S FUTURE GHG REGULATION BE PROTECTED BY JUS COGENS?
• PART V: CONCLUSION
• Index
• Copyright Page