Jurisdiction Marine Pollution International Fishing

Why the Oceans Matter 70% of the earth is covered in seas – Food source – Pollution assimilation – especially CO2 – Shipping and transportation We know very little about the oceans

Jurisdiction Background principle – Freedom of the seas Historically = free passage/ free fishing “tragedy of the commons” – Customary limitation: territorial seas 3 miles from coast “cannon shot rule”

Jurisdiction Continental shelf – After World War II – United States asserted jurisdiction over natural resources and seabed of contiguous continental shelf – Other countries followed Creeping jurisdiction + increasing disputes – UN Conference on the Law of the Sea 1958

Jurisdiction UNCLOS – United Nations Convention on the Law of the Sea – 1982 signed – 1994 entered into force – (but many elements were already customary law by then!)

Jurisdiction UNCLOS – Jurisdiction – Ports – Territorial Seas – Contiguous Seas – Exclusive Economic Zones – High seas

Jurisdiction

UNCLOS – Jurisdiction – Ports = internal waters Full national authority (with limited exceptions)

Jurisdiction UNCLOS – Jurisdiction – Territorial Seas = baseline to 12 nautical miles Baseline = coast/harbor walls – Subject to dispute Coastal state authority – = almost complete authority – Subject to right of innocent passage

Jurisdiction UNCLOS – Jurisdiction – Contiguous Seas = 12 to 24 nautical miles “Limited” coastal authority Except – Customs – Fiscal – Immigration – Sanitary legislation and regulations

Jurisdiction UNCLOS – Jurisdiction – Exclusive Economic Zones = Cover 30% of seas, 90% of commercial fisheries, and almost all minerals Coastal states have sovereign right to explore, exploit, conserve and manage natural resources – May pass laws exercising these rights – May board, inspect and arrest crews on ships violating the laws

Jurisdiction UNCLOS – Jurisdiction – Exclusive Economic Zones = Coastal states shall ensure the conservation and utilization of their living marine resources States shall take measures to prevent and reduce pollution States shall avoid activities under their jurisdiction that cause damage to other States and their environments

Jurisdiction UNCLOS – Jurisdiction – Exclusive Economic Zones = But, in preventing pollution in their own jurisdiction, States shall avoid interfering with activities carried out by other States in their exercise of their rights

Jurisdiction

UNCLOS – Jurisdiction – Territorial v. EEZ jurisdiction – tension Coastal state has regulatory jurisdiction over all sources of pollution in its territorial waters In EEZ, pollution regulations must comport with generally accepted international standards – typically based on technical standards set by the International Maritime Organization (IMO) Ship could be in compliance with IMO standards in EEZ, but violate State standards once in territorial waters

Jurisdiction UNCLOS – Jurisdiction – High seas – beyond 200 nautical miles No national jurisdiction

Jurisdiction Innocent passage – All jurisdictional zones are subject to “innocent passage”= transit passage of vessels on the sea

Jurisdiction Innocent passage – Qualifications Innocent passage does not protect – Any act of wilful and serious pollution in contravention of international law or – Any fishing activities Coastal state may adopt laws limiting right in regard to conservation of living marine resources, preservation of environment, and control/reduction of pollution – But not based on design, construction, crew or equipment, unless based on international standards

Jurisdiction Coastal states v. flag states – Coastal states = countries with actual coastal territory Have jurisdiction over ships when ships are in their territorial seas – Flag states = countries that license vessels to operate Have jurisdiction over ships that fly their flags Does not matter who owns the ship or what the nationality of the crew is – only relevant thing is the flag May create problems if dealing with “flags of convenience”

Oil Pollution

Oil pollution Oil pollution = most pervasive problem – 3,200 tankers per day – Huge: largest supertanker = 600,000 tons of oil Line of fuel trucks 320 kilometers long

Oil Pollution: The Notorious Spills Amoco Cadiz

Oil Pollution: Operational Discharges If oil and ballast tanks are the same, emptying tanks will discharge oil – 0.4% of total cargo = 400 tons per voyage

Oil Pollution: Operational Discharges

Oil pollution impacts Impacts vary depending on type of oil – Different chemical compounds – Natural seeps are different from refined oils Bacteria eat oil from natural seeps – Location, species, depth, etc., all matter

Oil Pollution Early Treaties International Convention for the Prevention of Pollution of Sea by Oil (OILPOL) – First – no discharges within 50 miles of coast – Then – no discharges unless Proceeding en route Discharge = less than 1/15,000 of capacity Rate = less than 60 liters per mile Distance = more than 50 miles from land – Neither worked

Oil Pollution Treaty: MARPOL 73/78 Covers operational discharges, spills, and unintentional releases

MARPOL 73/78 General requirements – States will establish international rules and standards – “flag states” shall adopt laws for the prevention and reduction of pollution from vessels flying their flags – Coastal states may adopt regulations to prevent pollution May apply them to vessels during innocent passage, so long as they don’t hinder innocent passage

Oil pollution MARPOL – 3 elements – Mandatory discharge standards – Construction, design, equipment, and manning specifications (CDEM) – Navigation standards

MARPOL 73/78 MARPOL – 3 elements – Mandatory discharge standards = limits on discharges Operating procedures for washing tanks and ballast water Port States must provide reception facilities

MARPOL 73/78 MARPOL – 3 elements – Construction, design, equipment, and manning specifications (CDEM) New ships must have segregated ballast tanks Other requirements for filters New ships need double hulls

Design Standards: Example

MARPOL 73/78 MARPOL – 3 elements – Navigation standards in special areas Special areas – oceanographical/ecological condition – Need special protection and standards – Examples: Mediterranean Sea, Baltic Sea, Black Sea, Red Sea, Gulf – No discharge allowed

Does MARPOL 73/78 work?

MARPOL 73/73 MARPOL – Compliance – Specific tanker standards – Reporting and documentation requirements

MARPOL 73/78 MARPOL – Compliance – Specific tanker standards Tankers > 150 tons Ships > 400 tons Must get International Oil Pollution Prevention (IOPP) Certificate – shows that ship meets technical standards Surveys at least every 5 years + intermediate inspection IOPPs issued by international classification societies – Not States – Is this good or bad?

MARPOL 73/78 MARPOL – Compliance – Specific tanker standards If ship doesn’t meet applicable standards and ship owner/operator does not take corrective action, IOPP withdrawn and Port state notified

MARPOL 73/78 MARPOL – Compliance – Reporting and documentation requirements Oil Record Book – Records every ballasting/discharge – Loading of oil – Transfer of oil – Etc.

MARPOL 73/78 MARPOL – Compliance – Certification societies Private companies Often have different standards What risks? – Pseudo-IOPPs

MARPOL 73/78 MARPOL – Compliance – Oil book and self-reporting What risks? What opportunities?

MARPOL 73/78 MARPOL – Compliance – Oil book and self-reporting What risks? – Would you report every time you drove over the speed limit? What opportunities? – Passengers – garbage discharges – Crew – “magic pipes”

MARPOL 73/78 – “Magic Pipe”

Oil Pollution: Sources of Spills

Oil pollution enforcement: flag states v. coastal states Flag states – Vessel is part of a flag state’s territory or nationality – Flag states can enforce against flagged vessel’s violations Except coastal state authority is more powerful in territorial seas

Oil pollution enforcement: flag states v. coastal states Coastal states – May use territorial authority to enforce against flagged vessels in their territorial seas, so long as they don’t infringe on innocent passage

Oil pollution enforcement: flag states v. coastal states Port states – Jurisdiction based on presence of vessel in port Port v. Coastal: – Coastal state jurisdiction – if pollution occurs in coastal waters, state acts as coastal state – If the only connection is based on ship’s presence, then state acts as port state

Oil pollution enforcement: MARPOL IOPP certificates – Port state may inspect to verify a valid IOPP exists – Port state may detain ship until ship can proceed to sea without presenting unreasonable threat of harm to marine environment if clear grounds for believing ship doesn’t conform to IOPP or that IOPP is not valid, Clear grounds for believing master or crew is not familiar with procedures – If ship doesn’t have IOPP, ok to inspect

Oil pollution enforcement: MARPOL Coastal states may detain and institute legal proceedings if ships violate rules and cause “major damage or threat of major damage” – If violation happens in territorial waters, coastal state may enforce – Otherwise, coastal state must pass along findings to flag State for enforcement Except: history of non-enforcement

Oil pollution enforcement: MARPOL Flag states – If violation alleged, flag state may Find vessel not guilty No action b/c insufficient evidence No action for “other and unspecified reason” Give a warning Levy a fine Take other unspecified actions

Oil pollution enforcement: MARPOL Flag states – Enforcement by Flag state preempts coastal or port State, except: If discharge caused major damage to coastal State If flag State has a history of non-enforcement

Oil pollution enforcement: MARPOL Flags of Convenience – Ship owners often register vessels in countries known for weak enforcement – 30% of world’s shipping carried by ships operating under Liberia or Panama flags Can employ foreign crews for cheap wages Corporate laws allow anonymity = prosecution is difficult

Oil pollution enforcement: MARPOL Flags of convenience – remedies? – Port state inspections + detention until repairs made – Port states may enforce violations outside of the EEZs – i.e., on the high seas Coastal states may enforce for violations within EEZs

Oil pollution enforcement: MARPOL Flags of convenience – remedies? – Limits on detention May detain ship to inspect and enforce But may not “unduly detain”