North Sea pollution from shipping: legal framework

Pollution and accidents should be prevented. Unfortunately, this is not always the case. International law, European law, regional law and national law govern marine pollution from ships. In this text, we discuss the applicable conventions of the International Maritime Organization (IMO), the general rules in the United Nations Convention on the Law of the Sea (UNCLOS), the initiatives taken by the European Union and the Bonn Agreement. Because the national situation is different in every country, this level is not discussed.

1 International maritime organization (IMO)
- 1.1 Pollution from ships and IMO conventions
  - 1.1.1 Operational pollution
  - 1.1.2 Accidental pollution
- 1.2 Bunker spills convention (2001)
2 UN Convention on the Law Of the Sea (UNCLOS)
3 European Community
4 The Bonn Agreement
5 Related articles
6 References
7 Further reading

International maritime organization (IMO)

Pollution of the marine environment from ships is mainly governed by conventions concluded under the auspices of the IMO, a specialized organisation of the United Nations.

There are two main types of IMO instruments in which legal provisions are contained, the resolutions adopted by the IMO and the rules and standards contained in IMO conventions and codes. The majority of conventions adopted under the auspices of IMO fall into three main categories:

maritime safety;
prevention of marine pollution; and
liability and compensation, especially in relation to damage caused by pollution.

In addition, there are a number of other conventions dealing with facilitation, tonnage measurement, unlawful acts against shipping and salvage. The application of IMO conventions depends upon the Contracting Parties to implement and enforce the provisions of IMO conventions as far as their own ships are concerned and to set the penalties for infringements, where these are applicable.

Port states and coastal states also have certain powers in respect of foreign ships sailing in seas under their sovereignty (territorial sea) or under their sovereign rights (exclusive economic zone). In general, IMO conventions do not regulate the nature and extent of coastal state jurisdiction, with the exception of two IMO instruments: the Convention Relating to the Intervention on the High Seas in Cases of Oil Pollution Casualties (1969) and its Protocol Relating to Intervention on the High Seas in Cases of Pollution by Substances Other than Oil (1973), which are international public law treaties regulating the right of the coastal state to intervene on the high seas in the case of pollution casualties. Besides these two conventions, the degree to which coastal states may enforce IMO regulations in respect of foreign ships in innocent passage in their territorial waters, or navigating the Exclusive Economic Zone (EEZ) is a subject to UNCLOS rules. The legal status of the different sea zones has also been taken into account in the four IMO conventions establishing a regime on civil liability and compensation for oil pollution damage (the Civil Liability Convention, the FUND Convention and the Bunker Oil Convention, 2001) and damage caused by hazardous and noxious substances (the HNS Convention, 1996). In these conventions, the legitimacy of states parties to file claims for pollution damage is dependent on where the damage occurred, whether within their territory, the territorial sea, or within the EEZ. While UNCLOS defines the features and extent of the concepts of flag, coastal and port state jurisdiction, IMO conventions, codes and resolutions specify how state jurisdiction should be exercised to ensure compliance with safety and antipollution regulations for shipping.

Pollution from ships and IMO conventions

Pollution from ships can be divided into operational pollution and into accidental/incidental pollution.

Operational pollution

Operational pollution at sea can be the result of tanker operations, usually associated with the cleaning of oil cargo residues (clingage). Not only oil cargo residues can be discharged at sea but also residues from chemical tankers. In the past, discharges of oil contaminated ballast water from oil tankers taking ballast water into the oil cargo spaces was a serious problem. Nowadays, most oil tankers are equipped with segregated or dedicated ballast tanks. All ships (also fishing vessels) can be potential dischargers of oil residues and/or oil contaminated residues (bilge water). Garbage and sewage from ships have traditionally been dumped or discharged into the sea as a matter of course. Pollution by operational discharges is regulated by the IMO in the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978, MARPOL73/78 ^[1], and amended from time to time.

MARPOL 73/78 and amendments, cover technical aspects to prevent and reduce pollution from ships. A new and important feature of the 1973 Convention was the concept of “special areas” that are considered so vulnerable to pollution by oil that oil discharges within them have been completely prohibited, with minor and well defined exceptions. Under Annex I and Annex V, the North Sea is a special area. In special areas more stringent discharge standards apply and ports bordering these areas have to supply sufficient receptions facilities.

Accidental pollution

Oil pollution arising from accidents with oil tankers, through oil spills (Torrey Canyon, Amoco Cadiz, Exxon Valdez, Erika, Prestige, etc.) contribute a comparatively small percentage of the total oil volume entering the sea each year (depending of the number of accidents and the volume spilt), but the consequences of an accident can be disastrous to the immediate sea area and coastline, particularly if the accident occurs close to the coastline. Although prevention of tanker accidents is mainly the task of the flag state (technical standards) and the owner of the ship (manning and maintenance of equipment), ports and coastal states have an important role to play in port state control and the issuing of navigation safety measures (the latter especially by applying the Convention on International Regulations for Preventing Collisions at Sea (COLREG 1972) and the routing measures of the International Convention for the Safety of Life at Sea (SOLAS 1974/78)).

Although most public concern about marine pollution from ships has concentrated on problems associated with oil, many of the chemicals carried by sea are far more dangerous to the marine environment and mostly the consequences are not well known. The amount of hazardous or noxious substances carried by sea is only a fraction of oil transported each year. Many hazardous or noxious substances are carried in bulk form in tankers especially designed for this purpose. These tankers are generally smaller in size than oil tankers, ranging from 500 BT tot about 40,000 BT. They are however extremely complex. Not only must the cargo be given maximum protection, the ship may also carry different substances at the same time with particular properties and requiring different handling. Other chemicals are carried in packaged form, such as in drums, portable tanks or containers. The environmental threat which some of these substances represents, bears no relation to the size of the unit in which they are carried.

Ships carrying dangerous cargo are subject to chapter VII of SOLAS, which regulates safety measures, including their safe packaging and stowage, applicable to the carriage of dangerous goods by sea. This chapter is supplemented by several IMO codes:

International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk (IBC Code), made mandatory under SOLAS in accordance with regulation VII/10 and under MARPOL 73/78;
International Code for the Construction and Equipment of Ships Carrying Liquefied Gases in Bulk (IGC Code) (regulation VII/13), made mandatory for Parties to SOLAS in accordance with regulation VII/13;
International Maritime Dangerous Goods Code (IMDG Code), mandatory under SOLAS and Annex III of MARPOL 73/78; and
Code for the Safe Carriage of Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Wastes in Flasks on Board Ships (INF Code), applies, in addition to SOLAS and IMDG regulations, to all ships carrying certain high level radioactive material, mandatory under SOLAS Chapter VII.

Building standards for oil tankers: double hull

MARPOL 73/78 contains various technical standards to prevent and minimize spills from oil tankers in case of groundings or collisions. A good example is the evolution in the double hull requirements. In 1992, MARPOL 73/78 was amended to make it mandatory for new oil tankers to have double hulls and obliged existing singe-hull tankers to fit double hulls at the latest 30 years after delivery. After the ERIKA incident in December 1999 when this tanker spilled about 14,000 tons of oil off the coast of Brittany in France, the European Union announced more stringent measures in regards to double hulls for ships entering European Union ports, finally resulting in EC Regulation 417/2002 phasing out single hull tankers. Under European pressure within IMO, the 2001 amendment to Annex I (in force since 1 September 2002) was accepted. This amendment introduced a new global timetable for accelerating the phase-out of single-hull oil tankers setting 2015 as the principal cut-off date for all single-hull tankers.

After the accident with the tanker Prestige in November 2002, polluting the coasts of Spain, Portugal and France with oil, the European Union immediately took legal action. Regulation 417/2002 has been amended by regulation 1756/2003. In this latter Regulation CAS applies from 2005 to all oil tankers of more than 15 years. Furthermore, category 1 vessels with single hulls will not be allowed to enter European Union ports after 2005; category 2 and 3 vessels with single hulls will not be allowed to enter European Union ports after 2010. In December 2003, the IMO’s MEPC amended Annex I again, following the deadlines introduced by the EU in its regulation 1756/2003, to ban single hull oil tankers in the future universally.

Reporting

Reporting obligations for ships are not restricted to cases of serious accidents, but are also mandatory in case of operational discharges in contravention with MARPOL 73/78 discharge limits. In accordance with UNCLOS, when a state becomes aware of cases in which the marine environment is in danger of being damaged or has been damaged by pollution, it must give immediate notification to other states likely to be affected by such damage and to the competent international organizations. Provisions regarding reporting of pollution or imminent threats of pollution from the ship to the nearest coastal radio station are contained in Protocol I to MARPOL.

Article 8, MARPOL 73/78 requires that:

A report of an incident shall be made without delay to the fullest extent possible in accordance with Protocol I;
Each party to the Convention shall make all arrangements necessary for an appropriate officer or agency to receive and process all reports on incidents;
Reports on incidents shall be relayed without delay to the administration of the ship involved and to any state which may be affected; and
Each party shall issue instructions to its maritime inspection vessels and aircrafts and to other appropriate services to report the incident to its authorities.

SOLAS 74/78 regulation V/8-1 enables states to adopt and implement mandatory ship reporting in accordance with guidelines and criteria developed by IMO. The regulation makes it mandatory for ships entering areas covered by ship reporting systems to report in to the coastal authorities giving details of sailing plans. Other information may also be required in the case of certain categories of ships and ships carrying certain cargoes.

Intervention on the High Seas by coastal States

INTERNATIONAL CONVENTION RELATING TO INTERVENTION ON THE HIGH SEAS IN CASES OF OIL POLLUTION CASUALTIES (1969)

The Convention applies to all seagoing vessels except warships or other vessels owned or operated by a state and used for this time being, only on governmental non-commercial services. The Convention affirms the right of a coastal state to take measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger to its coastline or related interests from pollution by oil (crude oil, fuel oil, diesel oil and lubricating oil) or the threat thereof, following upon a maritime casualty or acts related to such a casualty, which may reasonably be expected to result in major harmful consequences (art. I).

The coastal state is, however, empowered to take only such action as is necessary, and after due consultations with appropriate interests including, in particular, the flag state involved. In cases of extreme urgency, measure may be taken at once. In any case, the coastal state must endeavour to protect human life and assist persons in distress.

A coastal state which takes measures beyond those permitted under the Convention is liable to pay compensation for any damage caused by such measures that exceed those reasonably necessary to achieve the end mentioned in Article I (art. VI). Provision is made for the settlement of disputes arising in connection with the application of the Convention (art. VIII and Annex).

PROTOCOL RELATING TO INTERVENTION ON THE HIGH SEAS IN CASES OF POLLUTION BY SUBSTANCES OTHER THAN OIL (1973)

The 1973 Protocol extended the Convention to cover substances other than oil. "Substances other than oil" are:

(a) those substances enumerated in a list established by an appropriate body designated by the IMO and which shall be annexed to the present Protocol; and
(b) those other substances which are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.

The list mentioned in (a) has been updated in 1991, 1996 and 2002. If an intervening Party takes action with regard to a substance referred to in (b), that Party shall have the burden of establishing that the substance, under the circumstances present at the time of the intervention, could reasonably pose a grave and imminent danger analogous to that posed by any of the substances enumerated in the list referred to in (a).

Control of a pollution spill

Article 199 of UNCLOS provides that the affected states shall co-operate with the competent international organizations, to the extent possible, in eliminating the effects of pollution and preventing or minimizing the damage. States are further required jointly to develop and promote disaster plans for responding to marine pollution incidents.

Control and clean up of oil spills is subject to regional cooperation between coastal states in Europe (e.g. Bonn Agreement for the North Sea). On the universal level, there is the International Convention on Oil Pollution Preparedness, Response and Cooperation (OPRC-1990). In contrast to OPRC-1990, the Bonn Cooperation Agreement in the North Sea is not restricted to oil pollution incidents only. At the Conference on International Cooperation and Preparedness and Response to pollution Incidents by Hazardous and Noxious Substances (9-15 March 2000), the IMO adopted the OPRC/HNS Protocol on Preparedness, Response and Cooperation to pollution Incidents by Hazardous and Noxious Substances, aimed at providing a global framework for international cooperation in combating major incidents or threats of marine pollution from ships carrying hazardous and noxious substances, such as chemicals.

INTERNATIONAL CONVENTION ON OIL POLLUTION PREPAREDNESS, RESPONSE AND COOPERATION (OPRC 1990)

OPRC aims at providing a global framework for international cooperation in combating major incidents or threats of marine oil pollution and entered into force on 13 May 1995. Parties to the OPRC convention are required to establish measures for dealing with oil pollution incidents, either nationally or in cooperation with other countries. Parties are required to inform all states concerned and IMO in cases of major oil pollution incidents. Ships are required to carry a Shipboard Oil Pollution Emergency Plan (SOPEP), the guidelines for which have been developed by IMO. Operators of offshore units under the jurisdiction of Parties are also required to have oil pollution emergency plans or similar arrangements, which must be coordinated with national systems for responding promptly and effectively to oil pollution incidents. Ships are required to report incidents of pollution to coastal authorities and the convention details the actions that are then to be taken. The convention calls for the establishment of stockpiles of oil spill combating equipment, the organisation of oil spill combating exercises and the development of detailed plans for dealing with pollution incidents. Parties to the Convention are required to provide assistance to others in the event of a pollution emergency and provision is made for the reimbursement of any assistance provided. OPRC further develops the main principles of international cooperation in pollution response. It stipulates that, in accordance with applicable international agreements, each Party shall take the necessary legal or administrative measures to facilitate the arrival and utilization in and departure from its territory of ships, aircraft and other modes of transport engaged in responding to an oil pollution incident or transporting personnel, cargoes, materials and equipment required to deal with such an incident.

PROTOCOL ON PREPAREDNESS, RESPONSE AND COOPERATION TO POLLUTION INCIDENTS BY HAZARDOUS AND NOXIOUS SUBSTANCES (OPRC/HNS 2000 PROTOCOL)

The Protocol on Preparedness, Response and Cooperation to pollution Incidents by Hazardous and Noxious Substances, 2000 (OPRC/HNS Protocol) follows the principles of OPRC; this protocol will enter into force on 14 June 2007. Like the OPRC Convention, the OPRC/HNS Protocol aims to provide a global framework for international cooperation in combating major incidents or threats of marine pollution. Parties to the OPRC/HNS Protocol will be required to establish measures for dealing with HNS pollution incidents, either nationally or in cooperation with other countries. Ships will be required to carry a Shipboard Marine Pollution Emergency Plan (SMPEP) to deal specifically with incidents involving HNS. HNS are defined by reference to lists of substances included in various IMO Conventions and Codes. These include oils; other liquid substances defined as noxious or dangerous; liquefied gases; liquid substances with a flashpoint not exceeding 60°C; dangerous, hazardous and harmful materials and substances carried in packaged form; and solid bulk materials defined as possessing chemical hazards.

Regulations also require ships to establish on board disaster plans to deal with incidents involving oil or chemical spills from ships.

Liability and compensation for marine pollution caused by accidents

UNCLOS regulates the obligation for States to ensure that resources are available for adequate compensation or other relief in respect of damage caused by pollution of the marine environment under their jurisdiction. To this end, States have to co-operate in the development of international law setting out criteria and procedures for payment of adequate compensation, such as compulsory insurance or compensation funds. These provisions should be considered in connection with several treaty instruments adopted by IMO prior to and after the adoption of UNCLOS in the field of liability and compensation for damage related to the carriage of oil and other hazardous and noxious substances by sea.

OIL TANKERS UNDER 1992 CLC AND 1992 FUND

The 1969 International Convention on Civil Liability for Oil Pollution Damage (CLC 1969, as amended by the 1992 Protocol) governs compensation for marine pollution caused by spills of persistent oil from oil tankers introducing strict liability (i.e. liability even in the absence of fault) of the ship owner in cases of accidental oil pollution by oil tankers.

The 1992 Protocol covers pollution damage as before but environmental damage compensation is limited to costs incurred for reasonable measures to reinstate the contaminated environment. It also allows expenses incurred for preventive measures to be recovered even when no spill of oil occurs, provided there was grave and imminent threat of pollution damage. The Protocol extends the Convention to cover spills from sea-going vessels constructed or adapted to carry oil in bulk as cargo so that it applies to both laden and unladen tankers, including spills of bunker oil from such ships. Claims for compensation for oil pollution damage (including clean-up costs) may be brought against the owner of the tanker which caused the damage or directly against the owner's P&I insurer. The tanker owner is normally entitled to limit his liability to an amount, which is linked to the tonnage of the tanker causing the pollution. Under the 1992 Protocol, a ship owner cannot limit liability if it is proved that the pollution damage resulted from the ship owner's personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge, that such damage would probably result.

CLC 1969 is supplemented by the 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (Fund Convention (FC 1971), as amended by the 1992 Protocol). The 1992 Fund Protocol provides for the payment of supplementary compensation to those who cannot obtain full compensation for oil pollution damage under the 1992 CLC Protocol. An International Oil Pollution Compensation Fund (IOPC) was set up for the purpose of administering the regime of compensation created by the Fund Convention. By becoming Party to the 1971 Fund Convention and later the 1992 Fund Protocol, payments of compensation and administrative expenses are financed by contributions levied on companies in Protocol countries that receive yearly more than 150.000 tons of crude oil and heavy fuel oil after sea transport. In both the CLC and FC protocols (1992) the liability limits have been increased and the geographical coverage for damage has been extended to an area of 200 nautical miles from the baseline (EEZ or not), irrespective where the tanker caused the damage. In October 2000, the Contracting States to the 1992 CLC and Fund Protocol approved an increase of compensation available. This amendment came into effect on 1 November 2003.

The 2003 Protocol establishing an International Oil Pollution Compensation Supplementary Fund makes increased levels of compensation available for victims of oil pollution from oil tanker accidents (entered into force on 2 March 2005). The Fund is voluntary and to supplement the compensation available under the 1992 CLC/Fund Protocols with an additional, third tier of compensation. The 2003 Protocol is optional and participation is open to all Parties to the 1992 Fund Convention. Any person who, in any calendar year, has received total quantities of oil exceeding 150,000 tons will make annual contributions to the Fund in respect of each Contracting state. However, for the purposes of the Protocol, there is a minimum aggregate receipt of 1,000,000 tons of contributing oil in each Contracting State.

Ships carrying hazardous and noxious substances by sea

The International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious substances by Sea (HNS Convention) was adopted by the IMO in May 1996; though, it has not yet entered into force and for the moment, only eight states have ratified this convention. It aims to ensure adequate, prompt and effective compensation for damage that may result from shipping accidents involving hazardous and noxious substances. The Convention entitles claimants to compensation for loss or damage to persons, property and the environment caused by incidents involving cargoes of oil, gases and chemicals, plus other substances that are hazardous in packaged form. Pollution damage caused by persistent oils already covered by the CLC and Fund Convention is excluded, as is damage caused by radioactive materials and coal. The HNS Convention is modelled on the CLC and Fund Convention. Thus, the ship owner (and his P&I insurer) is strictly liable to pay the first tier of compensation whereas the second tier comes from a fund levied on cargo receivers in all contracting states on a post-event basis. The Convention also introduces a system of compulsory insurance and insurance certificates.

Limitation of Liability for Maritime Claims for other ships (LLMC - 1976).

As long as the HNS Convention has not entered into force, the liability regime for damage caused by dangerous and noxious substances falls within the Convention on Limitation of Liability for Maritime Claims (LLMC - 1976). This Convention provides the ship owner a right to limit his liability for two types of claims - claims for loss of life or personal injury, and property claims (such as damage to other ships, property or harbour works).

The Convention provides for a virtually unbreakable system of limiting liability. It declares that a person will not be able to limit liability only if "it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such a loss, or recklessly and with knowledge that such loss would probably result".

In 1996, a Protocol to the LLMC has been adopted. The Protocol increased the amount of compensation payable in the event of an incident and introduces a “tacit acceptance” procedure for updating these amounts.

CLC 1992 and FC 1992 cover compensation for:

costs of clean-up, including preventive measures;
property damage;
consequential economic loss;
pure economic loss; and
costs of reinstatement of the environment and post-spill studies.

Measures for reinstatement have to fulfil the following criteria in order to be admissible for compensation:

the cost of the measures should be reasonable;
the costs of the measures should not be disproportionate to the results achieved or the results which could reasonably be expected; and
the measures should be appropriate and offer a reasonable prospect of success.

The Fund Assembly approved additional specific admissibility criteria. Reinstatement measures should:

be likely to accelerate significantly the natural process of recovery;
seek to prevent further damage as a result of the incident;
as far as possible, not result in degradation of other habitats or in adverse consequences for other natural or economic resources;
be technically feasible; and
not be out of proportion of costs, to the extent and duration of the damage and the benefits likely to be achieved.

Bunker spills convention (2001)

Recognition of the problems that can be caused by spills of heavy bunker fuel from non-tankers led to the adoption of the International Convention on Civil Liability for Bunker Oil Pollution Damage (Bunker Spill Convention) at a diplomatic conference in March 2001. This IMO Convention seeks to ensure that adequate compensation is promptly available to persons who are required to clean up or who suffers damage because of spills of ships' bunker oil, who would not otherwise be compensated under the 1992 CLC. Although strict liability under the Bunker Spills Convention extends beyond the registered owner to the bareboat charterer, manager and operator of the ship, the Convention only requires the registered owner of ships greater than 1,000 GT to maintain insurance or other financial security. The level of cover must be equal to the limits of liability under the applicable national or international limitation regime, but in no case exceeding the amount calculated in accordance with the LLMC Convention (1976), as amended. The Bunkers Convention did not yet enter into force.

UN Convention on the Law Of the Sea (UNCLOS)

A broad legal framework for activities at sea, inter alia in terms of rights and duties of coastal states and port states, is provided in the 1982 UNCLOS . The UNCLOS clarifies and consolidates international law principles and customary law (e.g. innocent passage in the territorial sea, the duty to protect the marine environment, delimitation of maritime zones by agreement in order to achieve an equitable solution without any obligatory method, a territorial sea of 12 miles and a contiguous zone of 12 miles adjacent to the territorial sea), introduces the exclusive economic zone, establishes a Tribunal on the Law of the Sea in Hamburg, puts more emphasize on the protection of the marine environment from all sources of pollution, introduces the principles for the conservation and management of straddling fish stocks and highly migratory fish stocks, etc. The definition of the different maritime zones in the UNCLOS under jurisdiction of a coastal state are important to perform an adequate control at sea in cases of violations of international rules and national legislation, and to intervene in case of pollution arising from maritime casualties. The degree to which UNCLOS obliges parties to implement IMO regulations is expressed in a language which varies depending on subject matter: Parties must "take account of", "conform to", "give effect to" or "implement" "generally accepted international regulations" "applicable international instruments", "generally accepted international regulations, procedures and practices", etc. Some of these terms invite a wide interpretation of how the "umbrella" character of UNCLOS should operate as a tool to bind parties to apply IMO regulations effectively. One school of thought qualifies the view according to which parties to UNCLOS are obliged to implement generally accepted IMO rules and standards irrespective of whether they are party to the conventions where these rules and standards are contained and further elaborated.

Territorial sea

The territorial sea falls under the sovereignty of the coastal state, which means that the coastal state can enact laws and enforce these laws applicable in the territorial sea. These powers are comparable to the powers of a state on land territory, with the exception that ships of all states enjoy the right of innocent passage through the territorial sea. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state. Such passage shall take place in conformity with this Convention and with other rules of international law.

In its territorial sea, the coastal state may enact laws and regulations relating to innocent passage (article 21(1)), particularly with respect to: (a) safety of navigation and the regulation of maritime traffic; … (f) the preservation of the environment of the coastal state and the prevention, reduction and control of pollution thereof”. These laws and regulations must conform to the provisions of the Convention and “other rules of international law”. The adoption of the IMO conventions referred to above and their consequent incorporation into national legislation entitles coastal states to request that foreign ships in innocent passage through their territorial sea comply with the rules of these conventions, even if the flag state is not party to the relevant instrument.

However, UNCLOS provides in article 21(2) that the coastal state cannot impose on foreign ships in innocent passage through its territorial sea laws and regulations applicable to the design, construction, and equipment of foreign ships “unless they are giving effect to generally accepted international rules or standards”; in the case of antipollution measures also to those contained in IMO conventions (such as MARPOL 73/78). Regulations imposing either additional or more stringent requirements than those regulated by generally accepted international rules or standards could potentially violate the rules of innocent passage regulated by UNCLOS.

UNCLOS also regulates the right of intervention of the coastal state in the territorial sea in connection with the violation of international rules and standards for the prevention, reduction and control of pollution from vessels, namely those rules and standards adopted at IMO. The coastal state may undertake physical inspection of a vessel where there are clear grounds for believing that such vessel has committed a violation of the international rules and standards for the prevention, reduction and control of pollution from vessels while navigating in the territorial sea of the coastal state. Where evidence so warrants, the coastal state may institute proceedings, including detention of the vessel in accordance with its laws.

In conclusion: innocent passage and national regulations of the coastal states applicable to the design, construction and equipment of foreign ships, other than those in IMO Conventions and Codes, are the only limitations to the jurisdiction of coastal states in their territorial sea. It is accepted that a vessel polluting the territorial sea either as a breach of MARPOL 73/78 discharge standards or as a result of a maritime casualty with an effect or potential effect for the costal state’s interests (protection of the environment, fisheries, tourism, …), is not considered as an innocent passage anymore.

Exclusive Economic Zone (EEZ)

The exclusive economic zone has a different regime, since coastal states have "sovereign rights" and no "sovereignty" in this area. This means they have limited rights that have to be balanced with the freedom of navigation. The freedom of navigation in the EEZ is not absolute. In addition, flag states have to comply with IMO conventions, standards and the laws of the coastal state implementing them.

The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in UNCLOS, under which the rights and jurisdiction of the coastal state and the rights and freedoms of other states are governed by the relevant provisions. In the exclusive economic zone all states, whether coastal or land-locked, enjoy the freedoms of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms. In exercising their rights and performing their duties in the exclusive economic zone, states shall have due regard to the rights and duties of the coastal state and shall comply with the laws and regulations adopted by the coastal state in accordance with the provisions of the Convention and other rules of international law.

UNCLOS provides that in the exclusive economic zone the coastal state has jurisdiction with regard to the protection and preservation of the marine environment. In exercising this jurisdiction, the coastal state is empowered to enact laws and regulations for the prevention, reduction, and control of vessel-source pollution in the exclusive economic zone. Such laws and regulations must conform to and give effect to "generally accepted international rules and standards established through the competent international organization".

Furthermore, the coastal state may, in exercising its sovereign rights to conserve and manage the living resources in the exclusive economic zone, take such action, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with UNCLOS. Arrested vessels and their crew shall be promptly released upon the posting of a reasonable bond or other security. In case of arrest of detention of foreign vessels the coastal state shall promptly notify the flag state of the action taken and of any penalties subsequently imposed.

UNCLOS introduces the procedures for intervention by coastal states in cases of violations to international antipollution rules and standards or laws and regulations of that state conforming and giving effect to such rules and standards committed in the exclusive economic zone by vessels navigating in either the exclusive economic zone or the territorial sea. This mainly deals with MARPOL 73/78 discharge violations.

Intervention in case of a major incident beyond the territorial sea

Article 221(1) of UNCLOS recognizes the rights of states "pursuant to international law, both customary and conventional to take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their coastline or related interests, including fishing, from pollution or threat of pollution following upon a maritime casualty which may reasonably be expected to result in major harmful consequences".

This provision echoes the main features of the right of intervention by the coastal states regulated by the Intervention Convention of 1969 and its Protocol of 1973 (see supra), in respect of incidents involving, respectively, a major discharge of oil or of substances other than oil. These treaties refer solely to the right of intervention on the high seas because the concept of exclusive economic zone was not known at the time of their adoption. Following the entry into force of UNCLOS, the regulations on the right of the coastal state laid down in both IMO treaties should be considered as applicable both to the exclusive economic zone and to the high seas.

European Community

In the Communication "A Common Policy on Safe Seas" ^[2], the European Commission analysed the maritime safety situation in Europe and highlighted the main actions to be taken to improve maritime safety in Europe and to protect the European coasts better. Based on this programme the Commission presented between 1993 and 2002 more than 10 different proposals. The Council has adopted all of them, the last one in December 2001. One of these directives, Directive 93/75/EC or Hazmat directive (now repealed by the adoption of Directive 2002/59/EC), set up a notification system for ships carrying dangerous or polluting goods, regardless of their flag, bound for or leaving EU ports. This directive also set out a range of duties: the shipper and ship operator must provide the authorities with detailed information on the cargo carried. Precise and available at all time, this information contributes to preventing and minimising accidents at sea and it enables the relevant authorities to take the necessary precautions with regard to the presence of hazardous goods on board a ship.

Following the "Erika" accident off the Atlantic coast in December 1999, the European Commission prepared measures designed to increase maritime safety (the Erika I and Erika II package). The Erika I package strengthened the existing Directive 95/21/EC on port state control with the adoption of Directive 2001/106/EC, inter alia by refusing certain substandard vessels access to Community ports. EC Regulation 417/2002 set a timetable for phasing out single-hull oil tankers. The Erika II package completed the first package. EC Regulation 1406/2002 established a European Maritime Safety Agency (EMSA) responsible for improving enforcement of the EU rules on maritime safety. EMSA provides technical and scientific assistance to the Commission in the fields of maritime safety, maritime security, prevention of pollution and response to pollution caused by ships. Its assistance is particularly relevant in the continuous process of updating and developing new legislation, monitoring its implementation and evaluating the effectiveness of the measures in place. EMSA has the task to assist member states with regard to the practical implementation of Community legislation, organising appropriate training activities and favouring a dissemination of best practices in the Community. More important, with the entry into force of EC Regulation 724/2004 it has to assist member states, affected by pollution caused by ships, with antipollution means (specialised ships and equipment). A financial package allows EMSA to finance this specific task on a multi-annual basis and to combat pollution caused by ships in a more efficient way. The funds enable the Agency to make specialised anti-pollution vessels available to member states to recover pollutants. The Agency also develops satellite images to detect pollution in good time. Key areas where EMSA has already made valuable contributions are the monitoring of classification societies, port state control, the development of ship reporting systems in member states and the support to the European Commission to set up the SafeSeaNet project, a pan-European electronic information system dealing with ship movements and cargoes that is now operated by the Agency. In addition to the above, the concrete development of the pollution response task is one of the main challenges of EMSA for the next years. Directive 2002/59/EC (replacing Hazmat Directive) introduces a surveillance and information system to improve vessel monitoring in European waters. Ships sailing in EU waters have to be fitted with identification systems that automatically communicate with the coastal authorities, as well as VDRs to facilitate accident investigation. The directive improves the procedures for exchanging data on dangerous cargoes and allows the competent authorities to prevent ships from setting sail in very bad weather. It also requires each maritime member state to draw up plans to accommodate, in the waters under their jurisdiction, ships in distress (places of refuge).

Three years after the "Erika" accident, the "Prestige", a single hull tanker, sank off the Galicia coast polluting the Spanish, Portuguese and the French coasts with heavy fuel oil. On 20 December 2002, the Commission submitted to the European Parliament and the Council a proposal for a regulation to ban immediately the carriage of heavy fuel oil in single-hull tankers, speed up the timetable for phasing out single-hull oil tankers flying the flag of an EU Member State or operating in European ports, and tighten up the technical inspections for single-hull tankers over 15 years old entering EU ports. With the entry into force of EC Regulation 1726/2003 on 21 October 2003, single-hull tankers carrying heavy fuel oil are no longer allowed to enter or leave ports in the Member States. Under EU pressure, the same phasing out standards were adopted in IMO. On 12 July 2005, the European parliament and the Council adopted Directive 2005/35/EC on ship-source pollution and on the introduction of sanctions, including criminal sanctions for pollution offences. The Directive considers marine pollution by ships as an infringement. Sanctions will be applicable to any party - including the master, the owner, the operator, the charterer of a ship or the classification society - who has been found to have caused or contributed to illegal pollution intentionally or by means of serious negligence. The decision provides that in the most serious cases these infringements will have to be regarded as criminal offences, subject to criminal penalties.

Meanwhile a third Erika package is being discussed (COM(2005) 585), focusing on strengthened prevention of accidents and pollution and an even better treatment of pollution incidents. This is being translated into seven issues that are currently under discussion:

flag state requirements;
rules and standards for inspection and survey organisations;
port state control;
traffic monitoring;
investigation of accidents;
passenger rights and
civil liability.

These proposals are intended to supplement the European maritime safety rules by making the existing measures more effective.

The Bonn Agreement

The Agreement for cooperation in dealing with pollution of the North Sea by oil and other harmful substances of 1983 ^[3] is an agreement to combat such pollution and to stimulate active cooperation and mutual assistance among states bordering the North Sea in case of casualties or other incidents at sea that are of great concern for the protection of the coasts and related interests. For most North Sea countries, the Bonn Agreement is the most important international cooperation agreement to inform, assess and combat pollution because of casualties at sea.

The Agreement has two main objectives, this is to cooperate:

whenever the presence or the prospective presence of oil or other harmful substances polluting or threatening to pollute the sea within the North Sea area, presents a grave and imminent danger to the coast or related interests of one or more Contracting Parties; and
in surveillances conducted in the North Sea as an aid to detecting and combating such pollution and to preventing violations of anti-pollution regulations (art. 1).

There is a broad duty to exchange information (art. 4), of which the obligations in article 5 is most relevant for this study. According to article 5, when a Contracting Party is aware of a casualty or the presence of oil or other harmful substances in the North Sea area that is likely to constitute a serious threat to the coast or related interests of any other Contracting Party, it shall inform that Party immediately through the International Focal Point. Ships flying the flags of Parties have to report without delay:(a) all casualties causing or likely to cause pollution of the sea; (b) the presence, nature and extent of oil or other harmful substances likely to constitute a serious threat to the coast or related interests of one or more Contracting Parties (art. 5 (2)). A reporting system, called POLREP (Pollution Reporting) was accepted in 1996 (Recommendation 96/1).

The North Sea area is divided into the zones described in the Annex to the Agreement. In its zone, a Party has a surveillance duty and the responsibility to make the necessary assessments of the nature and extent of any casualty or, as the case may be, of the type and approximate quantity of oil or other harmful substances resulting in pollution and the direction and speed of movement thereof. This assessment and any action that it has taken to deal with the oil or other harmful substances shall immediately be communicated to all the other Contracting Parties through the International Focal Points. The Party concerned shall keep the substances under observation as long as they are present in its zone (art.6 and 6A). Some zones, for example the Belgian Part of the North Sea (BPNS) and the area surrounding it fall within a joint responsibility of Belgium, France and UK. The English Channel is another zone of joint responsibility of France and UK. The division into zones cannot be invoked as a precedent or argument in any matter concerning sovereignty or jurisdiction (art. 8).

A Contracting Party requiring assistance to deal with pollution or the prospective presence of pollution at sea or on its coast may call on the help of the other Contracting Parties. The Contracting Parties called upon for help shall use their best endeavours to assist, taking into the technological means available to them (art. 7). In the absence of an agreement concerning the financial arrangements governing actions of Contracting Parties to deal with pollution, Contracting Parties shall bear the costs of their respective actions in accordance with subparagraph (a) or subparagraph (b) below: (a) if the action was taken by one Contracting Party at the express request of another Contracting Party, the Contracting Party requesting such assistance shall reimburse to the assisting Contracting Party the costs of its action; (b) if the action was taken by a Contracting Party on its own initiative, this Contracting Party shall bear the costs of its action (art. 9.)

References

↑ MARPOL 73/78
↑ EU 1993. A Common Policy on Safe Seas COM(93) 66 final
↑ Bonn Agreement Counter Pollution Manual (2006) Bonn Agreement Secretariat, London. (also available here)

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