3.6 Conclusions
Because of the international nature of shipping, it has long been recognised that the regulation of the industry is more effective if carried out at an international level, rather than by individual countries acting unilaterally. To achieve this, a complex international framework has developed, consisting of well established customary international law, based on the premise of freedom of the seas; specific international conventions aimed at regulating specific aspects of ships’ operations; and a number of clearly identifiable actors. Most important among these is the IMO, which has developed a comprehensive range of conventional and soft law instruments aimed at ensuring the delicate balance between maritime and flag States’ rights of freedom of navigation and coastal States’ rights to protect their sovereign territory and resources from environmental damage, is maintained. However, while the IMO has developed a number of important international instruments, these do not define a State’s rights and obligations, since this is a matter for the LOSC. As such, the relationship between the IMO and its instruments and the LOSC is of critical importance in the ongoing development of the international legal regime governing international shipping.
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References
H. Grotius, On the Freedom of the Seas-Translated by Ralph Van Deman Magoffin (London: Oxford University Press, 1916). Mare Liberum was written to vindicate the claims of the Dutch East India company. It discusses the rights of England, Spain and Portugal to rule over the seas. If these countries could legitimately control the seas this would prevent the Dutch from sailing, for example, in the East Indies.
See for example E. Gold, “Pollution of the sea and international law: A Canadian perspective,” Journal of Maritime Law and Commerce 3 (1971), pp. 17–18; R.R. Churchill and A. V. Lowe, The Law of the Sea, 3rd Edition (Manchester, UK: Manchester University Press, 1999), pp. 5–13; E. Gold, “The future of maritime transit,” in J. M. Van Dyke, L. M. Alexander and J. R. Morgan (eds) International Navigation: Rocks and Shoals Ahead: A workshop of the Law of the Sea Institute (Honolulu: Law of the Sea Institute, 1986), pp. 237–259.
D. Bodansky, “Protecting the marine environment from vessel-source pollution: UNCLOS III and beyond,” Ecology Law Quarterly 18 (1991), p. 720. A well known example of this type of conflict can be seen with the establishment by Canada of shipping safety control zones extending across Canadian Arctic coastal waters. See J.A. Beesley, “Rights and responsibilities of Arctic coastal States: The Canadian view,” Journal of Maritime Law and Commerce 3 (1971), pp. 1–12; See also D. L. VanderZwaag, “Shipping and marine environmental protection in Canada: Rocking the boat and riding a restless sea,” in D. Rothwell and S. Bateman (eds) Navigational Rights and Freedoms and the New Law of the Sea, (The Hague/Boston: Martinus Nijhoff Publishers, 2000), p. 209.
Bodansky, p. 720 (note 3 above); See also E. Duruigbo, “Reforming the international law and policy on marine oil pollution,” Journal of Maritime Law and Commerce 31 (2000), pp. 65–88; W. L. Schachte, “The value of the 1982 UN Convention on the Law of the Sea: Preserving our freedoms and protecting the environment,” Ocean Development and International Law 23 (1992), pp. 55–69; H. Djalal, “The Law of the Sea Convention and navigational freedoms,” in D. Rothwell and S. Bateman (eds) Navigational Rights and Freedoms and the New Law of the Sea, (The Hague/Boston: Martinus Nijhoff Publishers, 2000), pp. 1–10.
Despite catastrophic oil spills resulting from tanker accidents, the principal source of ship-source pollution remains routine operational discharges. See for example the recent report of the Organization for Economic Cooperation and Development (OECD) Maritime Transport Committee: OECD, Cost savings stemming from non-compliance with international environmental regulations in the maritime sector, OECD Document DSTI/DOT/MTC(2002)8/FINAL, (Paris: OECD, 2003), pp. 10–11; See also the most recent estimates of oil inputs into the sea published by the US National Research Council: National Research Council, Oil in the Sea III: Inputs, Fates and Effects (Washington DC: National Academy Press, 2002), Chap. 3 generally.
G. Timagenis, International Control of Marine Pollution (Dobbs Ferry, NY: Oceana Publications, 1980), p. 18.
Since the introduction of severe restrictions on the disposal of residues containing oil and other harmful substances there has been a noticeable improvement in the quantities of these substances discharged to the marine environment. Nonetheless, oil is routinely discharged from the engine spaces of ships, and in the form of dirty ballast water and cargo residues from cargo tanks and numerous cases of non-compliance with these regulations are reported annually (See for example: OECD (note 5 above) at p. 20–21). Pollution levels measured along the main shipping routes in particular, still show considerable quantities of illegally discharged oil. See for example F. Wiese, Seabirds and Atlantic Canada’s Ship-Source Oil Pollution: Impacts, Trends, and Solutions, (Toronto: WWF Canada, 2002), p. 6.
The introduction of non-native species via the discharge of ballast water is well documented. See for example: J.T. Carlton, “Transoceanic and interoceanic dispersal of coastal marine organisms: the biology of ballast water,” Oceanography and Marine Biology: An Annual Review 23 (1985), pp. 313–371; J.T. Carlton, “Man’s role in changing the face of the ocean: Biological invasions and implications for the conservation of near-shore environments,” Conservation Biology 3 (1989), pp. 265–273; J.K. Kelly, “Ballast water and sediments as mechanisms for unwanted species introductions into Washington State,” Journal of Shellfish Research 12 (1993), pp. 405–410; J.T. Carlton, “The scale and ecological consequences of biological invasions in the world’s oceans,” in O. T. Sandlund, P. J. Schei and Å. Viken, (eds), Invasive Species and Biodiversity Management, (Dordrecht, The Netherlands: Kluwer Academic Publishers, 1999), pp. 195–212.
For examples of the impacts of antifouling substances see: G.W. Bryan, P.E. Gibbs, G.R. Burt and L.G. Hummerstone, “The decline of the gastropod Nucella lapillus around southwest England: evidence for the effects of tributyltin from anti-fouling paints,” Journal of the Marine Biological Association of the United Kingdom 66 (1986), pp. 611–640; S. J. de Mora (ed) Tributyltin: Case Study of an Environmental Contaminant, (Cambridge, UK: Cambridge University Press, 1996); C. Alzieu, “Tributyltin: case study of a chronic contaminant in the coastal environment,” Ocean and Coastal Management 40 (1998), pp. 23–36; R. Owen, A. Knap, M. Toaspern and K. Carbery, “Inhibition of coral photosynbook by the antifouling herbicide Irgarol 1051,” Marine Pollution Bulletin 44 (2002), 623–632; N. Kobayashi and H. Okamura, “Effects of new antifouling compounds on the development of sea urchin,” Marine Pollution Bulletin 44 (2002), pp. 748–751.
It is clear that a good deal of the garbage washed up on beaches is derived from land-based sources. However, in some areas most of the rubbish found comes from passing ships, which find it convenient to throw rubbish overboard rather than dispose of it in ports. See D. Johnson, “Environmentally sustainable cruise tourism: a reality check,” Marine Policy 26 (2002), pp. 261–270.
Fingus, provides a comprehensive list of 175 major oil spills that have occurred since the Torrey Canyon in 1967: M Fingus, Basics of Oil Spill Cleanup, 2nd Edition (Boca Raton, Florida: CRC Press LLC, 2001), pp. 10–14; For an overview of the impacts of oil spills see for example the reports of the International Petroleum Industry Environmental Conservation Association (IPIECA). Guidelines on Biological Impacts of Oil Pollution. IPIECA Oil Spill Report Series Volume 1 (London: IPIECA, 2000). Available at http://www.ipieca.org/publications/oilspill.html#IPIECAOSRS; S. Patin, Oil Spills in the Sea (East Northport, NY: EcoMonitor Publishing, 2001); W. Ritchie and M. O’Sullivan (eds) The Environmental Impact of the Wreck of the Braer (The Scottish Office, Edinburgh, 1994); The Environmental Impact of the Sea Empress Oil Spill: Final Report of the Sea Empress Environmental Evaluation Committee, (Government Stationary Office, London, 1998); P.G. Wells, J.N Butler, J.S. Hughes (eds) Exxon Valdez Oil Spill: Fate and Effects in Alaskan Waters (Ann Arbour, MI: ASTM, 1995).
Data from the International Tanker Operators Pollution Federation (ITOPF) suggests that in the period 1970–1979 3.14 million tonnes of oil was spilled in tanker accidents, whereas during the period 1990–1999 less than half that volume (1.14 million tonnes) was spilled. Furthermore, a few very large spills are responsible for a high percentage of the oil spilt in any one year. As such large accidents have the potential to contribute significantly to the overall data. See http://www.itopf.org/stats.html.
The International Tanker Operators Pollution Federation, The ITOPF Handbook 2005/2006, (London: ITOPF, 2005), p. 9.
For an overview of the impacts of noise on marine mammals see: C. Perry, A Review of the Impact of Anthropogenic Noise on Cetaceans, Report No.SC/50/E9 (London: Environmental Investigation Agency, 1998); W. Richardson, C. Greene, C. Malme and D. Thompson, Marine Mammals and Noise, (San Diego: San Diego Academic Press, 1995), Chap. 5 generally; J. Gordon and P. Tyack, “Sound and cetaceans,” in P. Evans and J Raga (eds) Marine Mammals: Biology and Conservation (New York: Kluwer Academic, 2001), pp. 139–196.
For example ship strikes. For a comprehensive overview of this issue see for example D.W. Laist, A.R. Knowlton, J.G. Mead, A.S. Collet and M. Podesta, “Collisions between ships and whales,” Marine Mammal Science 17 (2001), pp. 35–75.
In fragile marine environments such as coral reefs, ships may cause harm by running aground or by the use of anchors. See for example the submission made by the USA to the MEPC seeking designation of the Florida Keys as a PSSA which noted the incidence of coral damage by ship grounding and anchor use: MEPC 46/6/2 Designation of the marine area around the Florida Keys as a particularly sensitive sea area, submitted by the United States, 19 January 2001, paras. 5.1.2–5.1.3. On 2 November 2000, the 184m cargo ship Bunga Teratai Satu ran aground on Sudbury Reef, within the Great Barrier Reef Marine Park. Although no cargo or fuel was lost, the ship remained aground for 12 days and a large quantity of antifoulant paint containing TBT, zinc, and copper was scraped from the hull during the grounding and subsequent refloating operation. This resulted in extensive contamination of the reef sediments for up to 250m surrounding the grounding site.
C. C. Joyner, “The international ocean regime at the new millenium: a survey of the contemporary legal order,” Ocean and Coastal Management 43 (2000), p. 189. The main agencies with marine responsibilities are IMO, UNEP, IOC and FAO.
A. Blanco-Bazan, “The environmental UNCLOS and the work of the IMO in the field of prevention of pollution from vessels,” in A. Kirchner (ed) International Marine Environmental Law: Institutions, Implementation and Innovations (The Hague: Kluwer Law International, 2003), p. 31. As Blanco-Bazan notes the term “maritime” applies to the IMO in a restrictive sense. “IMO is a maritime organization as long as maritime relates to shipping”. This is somewhat oversimplifying the matter since a number of IMO instruments also relate to the operation of offshore oil and gas installations, while many of the safety related conventions apply to all vessels not just international shipping; For a general overview of the IMO and its work see generally M. Nordquist and J.N. Moore (eds) Current Maritime Issues and the International Maritime Organization (The Hague, Netherlands: Kluwer Law International, 1999).
The name of the organization was changed from the “Inter-Governmental Maritime Consultative Organization” (IMCO) to “International Maritime Organization” (IMO) by an amendment done at London 14 November 1975.
Several countries had proposed that a permanent international body should be established to promote maritime safety more effectively, but it was not until the establishment of the UN itself that these hopes were realised. In 1948 an international conference in Geneva adopted a convention formally establishing what is now known as the International Maritime Organization. For a general overview of the historical development of the Organization see generally R. M. M’Gonigle and M. W. Zacher, Pollution, Politics, and International Law: Tankers at Sea (Los Angeles: University of California Press, 1979), Chap. 3; L. Juda, “IMCO and the regulation of ocean pollution from ships,” International and Comparative Law Quarterly 26 (1977), pp. 558–584.
Convention on the Intergovernmental Maritime Consultative Organization, 6 March 1948. In force 17 March 1958. 289 U.N.T.S 4. As a result of the entry into force of amendments adopted by the IMCO Assembly in 1975 and 1977 respectively, the name of the IMCO was changed to International Maritime Organization and the title of the Convention modified accordingly. Convention on the International Maritime Organization, 14 November 1975, rectification 9 November 1977. In force 22 May 1982. 1276 U.N.T.S 468 (hereafter IMO Convention). See R. R. Churchill, “The role of the IMCO in combating marine pollution,” in D. J. Cusine and J. P. Grant (eds) The Impact of Marine Pollution (Montclair, New Jersey: Allanheld, Osmun & Co, 1980), p. 75.
M. Valenzuela, “International maritime transportation: Selected issues of the law of the sea,” in A.H. Soons (ed) Implementation of the Law of the Sea Convention Through International Institutions-23rd Annual Conference of the Law of the Sea Institute, Noordwijk aan Zee, The Netherlands, (Honolulu: Law of the Sea Institute, 1989), p. 189.
See T. Mensah, “The international regulation of maritime traffic: IMO approaches,” The UN Convention on the Law of the Sea: Impact and Implementation-19th Annual Conference of the Law of the Sea Institute, Cardiff, Wales, (Honolulu: Law of the Sea Institute, 1985), p 484; Article 1(a) The IMO Convention (note 21 above) defines the purpose of the organization as: To provide machinery for co-operation among Governments in the field of governmental regulation and practices relating to technical matters of all kinds affecting shipping engaged in international trade; to encourage and facilitate the general adoption of the highest practicable standards in matters concerning maritime safety, efficiency of navigation and the [prevention and control of marine pollution from ships]”.
D.M. Dzidzornu and B. M. Tsamenyi, “Enhancing international control of vessel-source oil pollution under the law of the sea convention, 1982: A reassessment,” University of Tasmania Law Review 10 (1991), p. 275.
M’Gonigle & Zacher, p. 43 (note 20 above).
See http://www.imo.org/HOME. At this time there was no mention of marine pollution among the IMO’s purposes and functions. As Churchill notes at p. 74 (note 21 above) “this is not surprising since in 1948 when the Convention was drafted, there was little concern about marine pollution”.
As of 25 January 2006. For a comprehensive overview of the current role and method of work of the IMO see S. Rosenne, “The International Maritime Organization interface with the Law of the Sea Convention,” in M.H. Nordquist and J.N. Moore (eds) Current Maritime Issues and the International Maritime Organization (The Hague, Netherlands: Kluwer Law International, 1999), pp. 251–268.
J.E. Vorbach, “The vital role of non-flag state actors in the pursuit of safer shipping,” Ocean Development and International Law 32 (2001), p. 29.
Dzidzornu & Tsamenyi, p. 275 (note 24 above).
See P. Birnie, “The status of environmental’ soft law’: trends and examples with special focus on IMO norms,” in. H. Ringbom (ed) Competing Norms in the Law of Marine Environmental Protection: Focus on Ship Safety and Pollution Prevention, (London/The Hague/Boston: Kluwer Law International, 1997), pp. 31–57.
E. J. Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (The Hague: Kluwer Law International, 1998), p. 38.
Blanco-Bazan, p. 32 (note 18 above).
As the then Secretary General of IMO noted in 1985: the [LOS] Convention gives legal and political confirmation to the regulatory regimes developed by IMO, and it implicitly recognises IMO as the legitimate international forum in which States are expected to develop new international standards and regulations... See T. Busha, “The response of the International Maritime Organization to references in the 1982 Convention to the ‘competent international organization’,” in J. M. V. Dyke, L. M. Alexander and J. R. Morgan (eds) International Navigation: Rocks and Shoals Ahead-A Workshop of the Law of the Sea Institute (Honolulu: Law of the Sea Institute, 1986), p. 237; See also generally P. Birnie, “Implementation of IMO regulations and oceans policy post-UNCLOS and post-UNCED,” in M.H. Nordquist and J.N. Moore (eds) Current Maritime Issues and the International Maritime Organization (The Hague, Netherlands: Kluwer Law International, 1999), pp. 361–390.
Birnie, p. 34 (note 31 above).
See Busha, pp. 238–240 L. M. Alexander and J. R. Morgan (eds) International Navigation: Rocks and Shoals Ahead-A Workshop of the Law of the Sea Institute (Honolulu: Law of the Sea Institute, 1986) (note 35 above); Vukas observes that: it is common knowledge that the singular used instead of ‘competent international organizations’ meant the reservation of the international legislation of the International Maritime Organization. B. Vukas, “Generally accepted international rules and standards,” in A.H. Soons (ed) Implementation of the Law of the Sea Convention Through International Institutions-23rd Annual Conference of the Law of the Sea Institute, Noordwijk aan Zee, The Netherlands, (Honolulu: Law of the Sea Institute, 1989), p. 411; See also J. W. Kindt, Marine Pollution and the Law of the Sea, (Buffalo, NY: William S. Hein & Co., 1986), p. 1174, who notes that “although the IMO is not mentioned per se in Article 211 of the LOSC, it is understood that the IMO is to govern vessel-sourced pollution”; See also generally D. M. McRae, “The new oceans regime: Implementing the convention,” Marine Policy 8 (1984), pp. 83–94. Analysis undertaken by the Legal Division of the IMO points out that although the IMO is explicitly referred to in only one of the LOSC Articles, it is implicitly recognised as the ‘competent international organization’ in respect of setting rules and standards for the protection of the marine environment from the impacts of vessel-sourced pollution and for maintaining safety of navigation. Furthermore, the use of the singular ‘competent international organization” reinforces that only one organization, the IMO, is competent for the purpose of establishing such rules and standards: LEG/MISC/3/Rev.1, Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization, prepared by the IMO Secretariat, 6 January 2003, p. 3. This interpretation is supported by Wolfrum. R. Wolfrum, “IMO interface with the Law of the Sea Convention,” in M.H. Nordquist and J.N. Moore (eds) Current Maritime Issues and the International Maritime Organization (The Hague, Netherlands: Kluwer Law International, 1999), p. 223.
See B. H. Oxman, “Environmental protection in archipelagic waters and international straits-The role of the International Maritime Organization,” International Journal of Marine and Coastal Law 10 (1995), p. 468.
Mensah, p. 488 (note 23 above).
Birnie, p. 43 (note 31 above).
Birnie, p. 45 (note 31 above).
Molenaar, p. 3 (note 32 above).
The International Convention for the Prevention of Pollution from Ships, 12 May 1954. In force 26 July 1958. 327 U.N.T.S 3 (hereafter OILPOL 1954) represented the first serious attempt to regulate some of the sources of marine pollution in a global context. The Convention established a permissive regime for the discharge of all oily waste beyond the limits of a prohibited zone which was to extend 50 nautical miles from the coast of States party to the convention. Within the prohibited zone however, only discharges with an oil content of less than 100 mg oil/litre of water were permitted. These prohibited zones encompassed both territorial waters and high seas in order to circumvent problems arising with the divergence in the territorial sea limits claimed by various States. The convention also included provisions requiring ships registered with contracting States to be fitted with certain pollution prevention facilities and the main ports of such States to provide waste oil reception facilities.
For a general discussion on the early development of oil pollution discharge standards see for example: R. H. Neuman, “Oil on troubled waters: The international control of marine pollution, “Journal of Maritime Law and Commerce 2 (1971), pp. 349–361; E. Gold, “The control of marine pollution from ships: responsibilities and rights,” The Law of the Sea: What Lies Ahead?-20th Annual Conference of the Law of the Sea Institute, (Honolulu: Law of the Sea Institute, 1986).
Molenaar, p. 22 (note 32 above).
See for example the OECD report, p. 40 (note 5 above).
Ibid.
After the Exxon Valdez tanker spill in 1989, the USA took unilateral action in the Oil Pollution Act 1990 (OPA’ 90), which included phasing out of oil tankers with single hulls, in favour of double hulls. Under pressure to maintain international standards the IMO adopted similar provisions in Regulation 13G of Annex 1 of MARPOL in 1993 although the IMO schedule for phasing out such tankers was more extended than the OPA’ 90 requirements. See L. de La Fayette, “Protection of the marine environment in 2000,” Environmental Policy and Law 31 (2001), p. 141; See also P. M. McGrath and M. Julian, “Protection of the marine environment from shipping operations: Australian and international responses,” in D. Rothwell and S. Bateman (eds) Navigational Rights and Freedoms and the New Law of the Sea, (The Hague/Boston: Martinus Nijhoff Publishers, 2000), pp. 198–199.
Duruigbo, p. 10 (note 4 above).
Following the Erika oil spill off Brittany in 1999, IMO adopted an accelerated phaseout schedule for single hull tankers under MARPOL Annex I Regulation 13F and 13G-See MEPC 46/23, Report of the Marine Environment Protection Committee on its forty sixth session, 16 May 2001, para. 2.55. See de La Fayette, p. 141 (note 77 above). These amendments were adopted in 2000 but were almost immediately revised following the sinking of the Prestige off the Spanish coast. As a result, a subsequent revised phaseout schedule for single hull tankers was adopted in 2004. See generally MEPC 50/3 Report of the Marine Environment Protection Committee on its fiftieth session, 8 December 2003.
Molenaar, p. 24 (note 32 above).
Ships routeing measures are set out in the General Provisions on Ships Routeing (GPSR): IMO Resolution A.572(14) General Provisions on Ships’ Routeing. Adopted 20th November 1985. As amended by Resolution A.827(19). Adopted 23rd November 1995. Those measure adopted by the IMO are published on a regular basis in the IMO’s Ships Routeing handbook. For the purposes of this book such routeing measures include traffic separation schemes, two-way routes, recommended tracks, no-anchoring areas, areas to be avoided, inshore traffic zones, roundabouts, precautionary areas, and deep water routes.
Bodansky, p. 730 (note 3 above).
Convention on the International Regulations for Preventing Collisions at Sea 1972, 20 October 1972. In force 15 July 1977. 1050 U.N.T.S 16 (hereafter COLREGS).
For a general discussion on the application of ship reporting schemes see for example: G. Plant, “The relationship between international navigation rights and environmental protection: A legal analysis of mandatory ship traffic systems,” in H. Ringbom (ed), Competing Norms in the Law of Marine Environmental Protection (London/The Hague/Boston: Kluwer Law International, 1997), pp. 11–27; and Joyner, p. 198 (note 17 above).
J. Roberts, “Protecting sensitive marine environments: The role and application of ships’ routeing measures,” International Journal of Marine and coastal Law 20 (2005), p. 107.
Many authors overlook the direct role SOLAS plays in terms of preventing marine pollution. See for example McGrath & Julian S. Bateman (eds) Navigational Rights and Freedoms and the New Law of the Sea, (The Hague/Boston: Martinus Nijhoff Publishers, 2000) (note 48 above), p. 195, who state that “control of pollution from ships essentially involves three IMO Conventions (MARPOL 73/78; The Intervention Convention and the 1990 OPRC Convention)”. In fact the 1990 OPRC Convention does not relate to the prevention of pollution from ships since it relates solely to response to oil spills; A similar view is put forward by Vanderzwaag at p. 214 (note 3 above); However, others recognise the direct role SOLAS plays in terms of pollution prevention. As Roberts notes, p. 98 (note 56 above): It is widely acknowledged that protection of the environment is a secondary benefit of the enhancement of navigational safety, since measures for the security of maritime traffic usually prevent environmental hazards as well; See for example the report of the Lord Donaldson Inquiry which concludes that “pollution control and safety are very closely linked, because the best way to maintain safety and to prevent pollution is to preserve the integrity of the ship”: HMSO, Safer Ships, Cleaner Seas. Report of Lord Donaldson’s Inquiry into the Prevention of Pollution from Merchant Shipping. (London: HMSO, 1994), para. 1.11.
Note 13, Chap. 1 of this book.
International Convention on the Control of Harmful Anti-Fouling Systems on Ships, 5 October 2001. Not yet in force.
International Convention for the Control and Management of Ships’ Ballast Water and Sediment, 13 February 2004. Not yet in force.
The first version was adopted in 1914, in response to the sinking of the SS Titanic, the second in 1929, the third in 1948 and the fourth in 1960. A completely new Convention was adopted in 1974, which included not only the amendments agreed up until that date but a new amendment procedure-the tacit acceptance procedure-designed to ensure that changes could be made within a specified (and acceptably short) period of time. Instead of requiring that an amendment shall enter into force after being accepted by, for example, two thirds of the Parties, the tacit acceptance procedure provides that an amendment shall enter into force on a specified date unless, before that date, objections to the amendment are received from an agreed number of Parties. As a result the 1974 Convention has been updated and amended on numerous occasions. The 1974 Convention is the principal convention dealing with maritime safety through CDEM and navigation standards. Molenaar, p. 70 (note 32 above).
IMO, IMO and the Safety of Navigation, Focus on IMO Paper (London: IMO, January 1998).
Joyner, p, 197 (note 17 above).
IMO Assembly Resolution A.572(14), para. 3.1 (note 52 above) recognises the IMO as: the only international body responsible for establishing and recommending measures on an international level concerning ships routeing”.
International Convention for the Prevention of Pollution from Ships, 2 November 1973. 1340 U.N.T.S 184. Not intended to enter into force without the 1978 Protocol.
See note 43 above.
Duruigbo, p. 7 (note 4 above).
Churchill, p. 80 J. P. Grant (eds) The Impact of Marine Pollution (Montclair, New Jersey: Allanheld, Osmun & Co, 1980) (note 21 above).
See L. B. Sohn, “Implications of the Law of the Sea Convention regarding the protection and preservation of the marine environment,” The Developing Order of the Oceans-18th Annual Conference of the Law of the Sea Institute, San Francisco, (Honolulu: The Law of the Sea Institute, 1984), p. 104; See also McGrath & Julian, p. 196 (note 48 above).
Mensah, p. 484 (note 23 above).
See for example B. O. Okere, “The technique of international maritime legislation,” International and Comparative Law Quarterly 30 (1981), pp 513–536; See also Neuman, generally (note 44 above); The terms ‘flag State’ and ‘maritime State’ are often used incorrectly and almost interchangeably. States which are characterised as ‘maritime’ commonly have large merchant fleets, the ships of which are usually registered in that State, in which case that State is the flag State with respect to those ships. Alternatively, ships are registered in another State (the so called ‘open registry’ or ‘flag of convenience’) while the controlling interest of the vessel is located in the maritime State — this explains the difference between maritime States and flag States. See also Molenaar, p. 30–31 (note 32 above).
Bodansky, p. 720 (note 3 above).
Gold, p. 20 (note 2 above).
I. J. Booth, “International ship pollution law: Recent developments at UNCLOS,” Marine Policy 4 (1980), p. 217.
Dzidzornu & Tsamenyi, p. 279 (note 24 above). Legault presents a different view by noting that: The ‘freedom of the seas’ is not an absolute principle and has never been applied in absolute terms... State practice, including the practice of the major maritime powers, amply demonstrates that coastal States may and do exercise jurisdiction and control over foreign vessels beyond territorial waters in order to prevent injury to their territory... L. H. J. Legault, “The freedom of the seas: A licence to pollute?” University of Toronto Law Journal 21 (1971), p. 218.
Dzidzornu & Tsamenyi, p. 279 (note 24 above).
See for example Booth generally (note 79 above). No example better highlights this than the claims by Canada for the establishment of shipping safety control zones (that may extend up to 100 nautical miles) to regulate the increasing tanker traffic transiting its arctic waters. See generally Beesley, (note 3 above); Gold (note 2 above); Neuman, (note 44 above); Legault, p. 219 (note 81 above).
Cited by L. Juda, International Law and Ocean Use Management, (New York/London: Routledge, 1996), p. 182.
Schachte, p. 60 (note 4 above).
Duruigbo, p. 12 (note 4 above).
Bodansky, p. 731 (note 3 above).
Bodansky, p. 736 (note 3 above). The duties of the flag State in respect of the high seas are set out in Article 94 LOSC. For a general discussion of the relationship between a ship and the flag State see Churchill & Lowe, Chap. 13 generally (note 2 above).
LOSC, Article 217; See Kindt, p. 1196 (note 37 above).
LEG/MISC/3/Rev.1, pp. 10–11 L. M. Alexander and J. R. Morgan (eds) International Navigation: Rocks and Shoals Ahead-A Workshop of the Law of the Sea Institute (Honolulu: Law of the Sea Institute, 1986) (note 37 above). For a discussion on the meaning of ‘generally accepted’ see A. Blanco-Bazan, “IMO interface with the Law of the Sea Convention,” in M.H. Nordquist and J.N. Moore (eds) Current Maritime Issues and the International Maritime Organization (The Hague, Netherlands: Kluwer Law International, 1999), pp. 282–284.
B. Kwiatkowska, The 200 Mile Exclusive Economic Zone in the new Law of the Sea (Dordrecht, The Netherlands: Martinus Nijhoff Publishers, 1989), p. 179. It should be noted that the obligation to establish laws giving effect to international standards is irrespective of whether the flag State is a party to the international instrument that promulgates those standards.
Ibid.
Bodansky, p. 742 (note 3 above).
See Molenaar, p. 98 (note 32 above).
LEG/MISC/3/Rev.1, p. 9 L. M. Alexander and J. R. Morgan (eds) International Navigation: Rocks and Shoals Ahead-A Workshop of the Law of the Sea Institute (Honolulu: Law of the Sea Institute, 1986) (note 37 above). For the purposes of this book, the relevant zones are ports and internal waters, the territorial sea and the EEZ. Since the focus of the discussion in this chapter relates to coastal State jurisdiction to regulate navigation and discharge standards, no analysis will provided on the rights of a State to intervene with a casualty. Accordingly, no reference will be made in this chapter, to a State’s powers of intervention in either the EEZ or the high seas.
Churchill & Lowe, p. 65 (note 2 above).
L.S Johnson, Coastal State Regulation of International Shipping (Dobbs Ferry, NY: Oceana Publications, 2004), p. 35.
For a discussion on the issue of port closure see Ibid, pp. 36–38.
Johnson, p. 35 (note 103 above).
Molenaar, p. 104 (note 32 above). Johnson (note 103 above) at p. 42, argues that if proper notification is given to a ship of the existence of such conditions and the vessel still voluntarily enters port, it can be argued that the vessel has agreed to be bound by such conditions. For a comprehensive overview of the rights of access to ports used for international trade see generally L. de La Fayette, “Access to ports in international law,” International Journal of Marine and Coastal Law 11 (1996), pp. 1–22.
Molenaar, p. 186 (note 32 above).
Innocent passage is broadly defined in Articles 18 and 19 of the LOSC. For a detailed discussion of the meaning of the term see for example K. Hakapaa and E. J. Molenaar, “Innocent passage-past and present,” Marine Policy 23 (1999), pp. 131–135; Molenaar, pp. 195–199 (note 32 above); Churchill & Lowe, pp. 81–92 (note 2 above).
B. Smith, “Innocent passage as a rule of decision: Navigation versus environmental protection” Columbia Journal of Transnational Law 21 (1982), p. 50.
Johnson, p. 61 (note 103 above).
See Hakapaa & Molenaar, p. 132 (note 110 above).
The subject of coastal State rights with respect to ships carrying hazardous cargoes has attracted a great deal of attention in recent times. High profile incidents such as the Prestige and the Erika have prompted several coastal States to propose ever increasingly stringent measures to protect their coastal waters. See for example J. Roberts, T. Workman, M. Tsamenyi and L. Johnson, “The Western European PSSA: A ‘politically sensitive sea area’,” Marine Policy 29 (2005), pp. 431–440.
Bodansky, pp. 750–751 (note 3 above).
For a broader discussion of this argument see Molenaar, pp. 203–204 (note 32 above).
Johnson, pp. 69–71 (note 103 above).
Roberts, p. 100 (note 56 above).
A.E. Boyle, “Marine pollution under the Law of the Sea Convention,” American Journal of International Law 79 (1985), p. 360.
G. Kullenberg, “The exclusive economic zone: some perspectives” Ocean and Coastal Management 42 (1999), p. 849. The EEZs cover approximately 8% of the earth’s surface and include approximately 25% of global primary production and 90% of total fish catch.
Dzidzornu & Tsamenyi, p. 280 (note 24 above).
See Kullenberg, p. 850 (note 125 above).
See Kwiatkowska, p. 160 (note 93 above); See also D. M. Dzidzornu, “Coastal State obligations and powers respecting EEZ environmental protection under Part XII of the UNCLOS: A descriptive analysis,” Colorado Journal of International Environmental Law 8 (1997), p. 284.
For a general discussion of coastal State rights and duties in the EEZ see Churchill & Lowe, pp. 166–169 (note 2 above).
Juda, p. 236 (note 85 above).
See however J. Van Dyke, “The disappearing right to navigational freedom in the exclusive economic zone,” Marine Policy 29 (2004), pp. 107–121, who argues strongly that the traditional rights of freedom of navigation have been severely eroded in the EEZ as a result of coastal State practice. He particularly notes the actions of certain States in respect of ships carrying harmful substances such as oil (pp. 109–110) and irradiated nuclear fuel (p. 111).
Dzidzornu, p. 301 (note 128 above).
See Boyle, p. 362 (note 124 above).
See for example Kwiatkowska, p. 160 (note 128 above). See also generally Dzidornu (note 128 above).
Roberts, p. 101 (note 56 above).
For a detailed discussion of this argument see Johnson, pp. 103–106 (note 103 above).
Roberts, p. 101 (note 56 above).
See Bodansky, pp. 766–767 (note 3 above).
Note 52 above.
NAV 46/3/2, Proposed amendments to the General Provisions on Ships’ Routeing to provide for a no anchoring area routeing measure, submitted by the United States, 5 April 2000, para. 2.
NAV 46/3/3, No anchoring areas for Flower Garden Banks in the Northwestern Gulf of Mexico, submitted by the United States, 5 April 2000.
NAV 47/3/1, No anchoring areas in the Tortugas Ecological Reserve and the Tortugas Bank in the Florida Keys, submitted by the United States, 15 February 2001.
NAV 44/14, Subcommittee on Safety of Navigation forty-fourth session: Report to the Maritime Safety Committee. 4 September 1998, Annex 8, para. 1.
See NAV 48/3/5, Amendment of the traffic separation scheme in the Bay of Fundy and approaches, submitted by Canada, 5 April 2002; MSC 76/23, Report of the Maritime Safety Committee on its Seventy-Sixth Session. 16 December 2002, para. 113.
Johnson, p. 132 (note 103 above).
Johnson, p. 106 (note 103 above).
Churchill & Lowe, p. 102 (note 2 above); Molenaar, p. 283 (note 32 above).
See B.H. Dubner, “On the interplay of international law of the seas and the prevention of marine pollution — How far can a State proceed in protecting itself from conflicting norms in international law?” Georgetown International Environmental Law Review 11 (1998), p. 147.
Churchill & Lowe, p. 102 (note 2 above).
See M. George, “Transit passage and pollution control in straits under the 1982 Law of the Sea Convention,” Ocean Development and International Law 33 (2002), p. 194.
Molenaar, p. 287 (note 32 above).
G. Galdorisi, “An operational perspective on the law of the sea,” Ocean Development and International Law 29 (1998), p. 79. Galdorisi argues that: Less restrictive than innocent passage, the transit regime permits ships and aircraft to pass through straits continuously and expeditiously in the normal mode. Accordingly, submarines may pass through straits submerged, naval task forces may conduct formation steaming, aircraft carriers may engage in flight operations, and military aircraft can transit unchallenged.
Churchill & Lowe, p. 107 (note 2 above).
Churchill & Lowe, p. 108 (note 2 above).
See Molenaar, p 287–289, for a discussion on what activities cannot be considered as exercises of the right of transit passage (note 32 above).
B. H. Oxman, p. 476 (note 38 above).
LOSC, Article 41(4). Given that coastal States have no jurisdiction to act unilaterally, and given that IMO approval of such measures is required, there does not appear to be any reason why the procedure set out in Article 41 could not equally apply to other internationally accepted measures such as ship’s routeing measures and SRS. Molenaar (note 32 above) at p. 295, elaborates on this argument. However, State practice in this area does not assist in clarifying whether this is the case, as the treatment by IMO of applications by coastal States for other measures has not been addressed in a consistent manner.
R. D. Brubaker, “Straits in the Russian Arctic,” Ocean Development and International Law 32 (2001), p. 268.
Article 47 is a complex Article of many paragraphs which defines the procedures for determining the limits and extent of archipelagic baseline. For a discussion on archipelagic baselines see for example Churchill & Lowe, pp. 123–125 (note 2 above).
Molenaar, p. 340 (note 32 above).
LOSC, Article 53. The approval role of the IMO is crucial in the designation of archipelagic sealanes. As such IMO has adopted procedures for the designation of archipelagic sea lanes. For a discussion of the IMO approval role see for example C. Johnson, “A rite of passage: The IMO consideration of the Indonesian archipelagic sealanes submission,” International Journal of Marine and Coastal Law 15 (2000), pp. 319–325; Oxman, generally (note 38 above).
Churchill & Lowe, p. 127 (note 2 above).
Johnson, p. 318 (note 103 above).
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(2007). International Regulation of Shipping for the Protection of the Marine Environment. In: Marine Environment Protection and Biodiversity Conservation. Springer, Berlin, Heidelberg . https://doi.org/10.1007/978-3-540-37699-6_3
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