Legal Framework on the Marine Environment Protection of Straits Used for International Navigation: Has It Been Effective in the Straits of Malacca and Singapore?

Rusli, Hazmi; Dremliuga, R.; Talaat, Wan I.

doi:10.1007/978-981-16-3195-5_18

Hazmi Rusli²,
R. Dremliuga³ &
Wan I. Talaat⁴

626 Accesses

Abstract

There are approximately 116 straits used for international navigation around the world. Some of them are important international maritime chokepoints, namely the Dover Strait, Hormuz Strait, Straits of Malacca and Singapore and the Russian straits across the Northeast Arctic Passage. Due to the high number of navigational traffic going through these straits, vessel-source pollution is endemic in these waters. This article examines the applicable international legal framework on protection of the marine environment of straits used for international navigation such as Part XII of the United Nations Convention on the Law of the Sea and other related legal measures like International Maritime Organization conventions on protection of the marine environment. This article concludes by stating that the present framework is not sufficient in properly balancing two vital interests in the maritime world―protection of the marine environment vis-à-vis shipping.

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Notes

1.
Article 192 of the UNCLOS reads: “States have the obligation to protect and preserve the marine environment.” Article 192 is an important component of the comprehensive approach of Part XII of the UNCLOS on safeguards of the marine environment; this provision reiterates the preamble of the UNCLOS and Principle 7 of the Stockholm Conference that all States have the obligation to protect and preserve the marine environment. The term ‘States’ in Article 192 refers to all States and does not only refer to State-parties to the UNCLOS. See M. NORDQUIST, IV UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982: A COMMENTARY 36–40 (M. Nordquist, et al. eds., 1991); HAZMI RUSLI, Protecting Vital Sea Lines of Communication: A Study of the Proposed Designation of the Straits of Malacca and Singapore as a Particularly Sensitive Sea Area, 57, OCEAN & COASTAL MGMT 79–80 (2012).
2.
Norquist contended that even though Articles 192, 194 and 197 of the UNCLOS employ the word ‘shall,’ the scope of the possible obligation is qualified and never absolute. Seeid. at 36.
3.
R. CHURCHILL, The UNCLOS regime for protection of the marine environment- fit for the twenty-first century?, in RESEARCH HANDBOOK ON INTERNATIONAL MARINE ENVIRONMENTAL LAW (R. Rayfuse ed., 2015).
4.
Article 211(1) reads: “States, acting through the competent international organization or general diplomatic conference, shall establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels…”.
5.
Article 211(4) of the UNCLOS states: “Coastal States may, in the exercise of their sovereignty within their territorial sea, adopt laws and regulations for the prevention, reduction and control of marine pollution from foreign vessels…Such laws and regulations shall, not hamper innocent passage of foreign vessels.” [Emphasis added].
6.
Article 211 (3) of the UNCLOS prescribes States to “establish particular requirements for the prevention, reduction and control of pollution of the marine environment as a condition for the entry of foreign vessels into their ports or internal waters…”; A port State has been defined as “a sheltered place where ships may load or discharge cargo and embark or disembark passengers, which makes use of both natural conditions and artificial installations, and which offers facilities for the movement of passengers and goods by water and land, subject to a special administration to secure this traffic functions.” See M. GEORGE, LEGAL REGIME OF THE STRAITS OF MALACCA AND SINGAPORE 359 (2008).
7.
Article 211(2) specifies the jurisdiction of flag States that: “States shall adopt laws and regulations for the prevention, reduction and control of pollution of the marine environment from vessels flying their flag or of their registry.”.
8.
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9.
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11.
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12.
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13.
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18.
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19.
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21.
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22.
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29.
G. Kasoulides, Global and regional port state regimes, in COMPETING NORMS IN THE LAW OF MARINE ENVIRONMENTAL PROTECTION 121 (H. Ringbom ed., 1997).
30.
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31.
On territorial sea, Article 220(2) of the UNCLOS reads: “Where there are clear grounds for believing that a vessel navigating in the territorial sea of a State has, during its passage therein, violated laws and regulations of that State adopted in accordance with this Convention … that State … may undertake physical inspection of the vessel relating to the violation and may … institute proceedings, including detention of the vessel.” On EEZ, Article 220(3) reads: “Where there are clear grounds for believing that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation of applicable international rules and standards for the prevention, reduction and control of pollution from vessels … that State may require the vessel to give information regarding its identity and port of registry, its last and its next port of call and other relevant information required to establish whether a violation has occurred.”.
32.
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33.
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34.
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35.
MOLENAAR,supra note 32, at 250.
36.
Article 25(3) of the UNCLOS provides: “The coastal State may…suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security”.
37.
M. KACHEL, PARTICULARLY SENSITIVE SEA AREAS: THE IMO’S ROLE IN PROTECTING VULNERABLE MARINE AREAS 55 (2008).
38.
Article 94 of the UNCLOS provides that: “Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag”.
39.
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40.
Id. at 157.
41.
D. VANDER ZWAAG et al., GOVERNANCE OF ARCTIC MARINE SHIPPING 10 (2008).
42.
Supra note 8, at 11–2.
43.
UNCLOS art. 92(1). For details, see D. MOMTAZ, A HANDBOOK ON THE NEW LAW OF THE SEA VOL. 1, 406–7 (R.-J. Dupuy & D. Vignes eds., 1991). See also INTERNATIONAL ORGANIZATIONS AND THE LAW OF THE SEA 40–1 (2000); M. KACHEL, PARTICULARLY SENSITIVE SEA AREAS: THE IMO’S ROLE IN PROTECTING VULNERABLE MARINE AREAS 54–5 (2008).
44.
UNCLOS art. 217(1). See also MOMTAZ, id. at 407.
45.
UNCLOS art. 217(4). See KINDT, supra note 11, at 1187–8.
46.
Supra note 39.
47.
The flag State has the responsibility to ensure that the vessel and its crew are fit for sailing. Article 217(2) of the UNCLOS reads: “States shall…take appropriate measures in order to ensure that vessels flying their flag or of their registry are prohibited from sailing, until they can proceed to sea in compliance with the requirements of the international rules and standards … including requirements in respect of design, construction, equipment and manning of vessels.”.
48.
Supra note 39.
49.
R. WARNER, PROTECTING THE OCEAN BEYOND NATIONAL JURISDICTION: STRENGTHENING THE INTERNATIONAL LAW FRAMEWORK 38 (D. Freestone ed., 2009).
50.
Nearly two-thirds of the world’s trade is carried on ships from open registries. Panama, Liberia, the Bahamas and the Marshall Islands are currently the four largest open registries in the world. See D.J.Mitchell, The Threat to Global Shipping from Unions and High-Tax Politicians: Restrictions on Open Registries Would Increase Consumer Prices and Boost Cost of Government, in IV Prosperitas: A Policy Analysis from the Center for Freedom and Prosperity Foundation 3–4 (2004).
51.
R. WARNER, PROTECTING THE OCEAN BEYOND NATIONAL JURISDICTION: STRENGTHENING THE INTERNATIONAL LAW FRAMEWORK (2009). See also J. MANSELL, FLAG STATE RESPONSIBILITY: HISTORICAL DEVELOPMENT AND CONTEMPORARY ISSUES 5–6 (2009); supra note 39, at 159–61; supra note 6, at 246–7, available athttp://www.malaysianbar.org.my/index.php?option=com_docman&task=doc_view&gid=2922; SHIPPING INDUSTRY GUIDELINES ON FLAG STATE PERFORMANCE4–5 (2003). available athttp://www.dohle-yachts.com/wp-content/uploads/2015/12/FlagStateperformanceGuidelines.pdf (all last visited on May 10, 2016).
52.
Supra note 39, at 159–60.
53.
Genuine link is defined in the United Nations Convention on Conditions for Registration of Ships of 1986 (hereinafter Registration Convention) as “the existence of a competent national maritime authority in the flag State,” and the effective control by the latter over the companies which own the ships flying its national flag will henceforth be “the obligatory minimum elements” for the link between the ship and the flag to be considered as genuine. The Registration Convention has been ratified by only a few States and has yet to enter into force. See D. Momtaz, The High Seas, in A Handbook on the New Law of the Sea vol. 1. 403–4 (R.-J. Dupuy & D. Vignes eds., 1991). See alsosupra note 39, at 159–60.
54.
Supra note 39, at 159–60.
55.
Supra note 53.
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Id.
58.
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61.
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62.
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63.
P. SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 136–8 (2d ed. 2003).
64.
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65.
Article 220(2) of the UNCLOS provides that: “Where there are clear grounds for believing that a vessel navigating in the territorial sea of a State has, during its passage therein, 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, that State … may undertake physical inspection of the vessel relating to the violation…”.
66.
See Limits Imposed on the Contents and Application of the Law and Regulations, in A HANDBOOK ON THE NEW LAW OF THE SEA, vol. 2, 967–70 (R.-J. Dupuy & D. Vignes ed.,1991).
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R. SATIVALE, Transit Passage in the Straits of Malacca, MIMA BULL 11–2 (2003).
68.
Supra note 68.
69.
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70.
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71.
Supra note 6, at 73–7. See J. A. DE YTURRIAGA, STRAITS USED FOR INTERNATIONAL NAVIGATION: A SPANISH PERSPECTIVE 180–3 (1991).
72.
Articles 42(1)(a) & (b) of the UNCLOS reads that: “States bordering straits may adopt laws on safety of navigation and on prevention, reduction and control of vessel-source of marine pollution by giving effect to applicable international regulations governing these matters”.
73.
GEORGE, supra note 6, at 77.
74.
H. Caminos, The Legal Regime of Straits in the 1982 United Nations Convention one the Law of the Sea in RECUEIL DES COURS 172 (1987-V).[Emphasis Added].
75.
Id. at 172–3.
76.
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79.
Supra note 76, at 171-2.
80.
There is existing co-operation mechanism between the littoral States and the users of the Straits of Malacca and Singapore as recommended in Article 43 of the UNCLOS. This ongoing co-operative mechanism is a good example to illustrate this. Due to the lack of support given on the part of the users particularly private stakeholders of the Straits, there have been calls back in 2007 to propose the littoral States to consider lodging a report to the International Tribunal of the Law of the Sea citing the users for violating Article 300 of the UNCLOS on good faith and abuse of rights. See Mohd Nizam Basiron, Special Focus: Symposium on the Enhancement of Safety of Navigation and the Environmental Protection of the Straits of Malacca and Singapore, 14 MIMA BULL. 23–5 (2007).
81.
The collective readings of Articles 42(1)(a) & (b), 42(2) and 233 of the UNCLOS have resulted in the regulatory powers of States bordering straits to be very limited, so that transit rights of vessels could not be suspended by utilizing a claim to protect the marine environment. See supra note 11, at 1193.
82.
Supra note 73, at 180.
83.
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84.
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85.
Id.
86.
Article 39(2) of the UNCLOS underlines the duties of ships while transiting straits used for international navigation. Ships exercising transit passage must comply with generally accepted international regulations, procedures and practices for safety at sea as well as for the prevention, reduction and control of pollution from ships.
87.
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88.
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Faculty of Syariah and Law, Universiti Sains Islam Malaysia, 71800, Bandar Baru Nilai, Nilai, Negeri Sembilan, Malaysia
Hazmi Rusli
School of Law, Campus Far Eastern Federal University, Ajax, Vladivostok, Russia
R. Dremliuga
Institute of Environment and Oceanography, University Malaysia Terengganu, Terengganu, Malaysia
Wan I. Talaat

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Hazmi Rusli
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YIJUN Institute of International Law, Seoul, Korea (Republic of)
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Rusli, H., Dremliuga, R., Talaat, W.I. (2022). Legal Framework on the Marine Environment Protection of Straits Used for International Navigation: Has It Been Effective in the Straits of Malacca and Singapore?. In: Lee, E.Y.J. (eds) ASEAN International Law. Springer, Singapore. https://doi.org/10.1007/978-981-16-3195-5_18

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