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

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international ocean law

International Ocean Law

Jurisdiction

Marine Pollution

International Fishing

why the oceans matter
Why the Oceans Matter
  • 70% of the earth is covered in seas
    • Food source
    • Pollution assimilation – especially CO2
    • Shipping and transportation
  • We know very little about the oceans
jurisdiction
Jurisdiction
  • Background principle
    • Freedom of the seas
      • Historically = free passage/ free fishing
      • “tragedy of the commons”
    • Customary limitation: territorial seas
      • 3 miles from coast
      • “cannon shot rule”
jurisdiction1
Jurisdiction
  • Continental shelf
    • After World War II
    • United States asserted jurisdiction over natural resources and seabed of contiguous continental shelf
    • Other countries followed
      • Creeping jurisdiction + increasing disputes
    • UN Conference on the Law of the Sea 1958
jurisdiction2
Jurisdiction
  • UNCLOS
    • United Nations Convention on the Law of the Sea
    • 1982 signed
    • 1994 entered into force
    • (but many elements were already customary law by then!)
jurisdiction3
Jurisdiction
  • UNCLOS – Jurisdiction
    • Ports
    • Territorial Seas
    • Contiguous Seas
    • Exclusive Economic Zones
    • High seas
jurisdiction5
Jurisdiction
  • UNCLOS – Jurisdiction
    • Ports = internal waters
      • Full national authority (with limited exceptions)
jurisdiction6
Jurisdiction
  • UNCLOS – Jurisdiction
    • Territorial Seas = baseline to 12 nautical miles
      • Baseline = coast/harbor walls
        • Subject to dispute
      • Coastal state authority
        • = almost complete authority
        • Subject to right of innocent passage
jurisdiction7
Jurisdiction
  • UNCLOS – Jurisdiction
    • Contiguous Seas = 12 to 24 nautical miles
      • “Limited” coastal authority
      • Except
        • Customs
        • Fiscal
        • Immigration
        • Sanitary legislation and regulations
jurisdiction8
Jurisdiction
  • UNCLOS – Jurisdiction
    • Exclusive Economic Zones = 12-200
      • Cover 30% of seas, 90% of commercial fisheries, and almost all minerals
      • Coastal states have sovereign right to explore, exploit, conserve and manage natural resources
        • May pass laws exercising these rights
        • May board, inspect and arrest crews on ships violating the laws
jurisdiction9
Jurisdiction
  • UNCLOS – Jurisdiction
    • Exclusive Economic Zones = 12-200
      • Coastal states shall ensure the conservation and utilization of their living marine resources
      • States shall take measures to prevent and reduce pollution
      • States shall avoid activities under their jurisdiction that cause damage to other States and their environments
jurisdiction10
Jurisdiction
  • UNCLOS – Jurisdiction
    • Exclusive Economic Zones = 12-200
      • But, in preventing pollution in their own jurisdiction, States shall avoid interfering with activities carried out by other States in their exercise of their rights
jurisdiction12
Jurisdiction
  • UNCLOS – Jurisdiction
    • Territorial v. EEZ jurisdiction – tension
      • Coastal state has regulatory jurisdiction over all sources of pollution in its territorial waters
      • In EEZ, pollution regulations must comport with generally accepted international standards – typically based on technical standards set by the International Maritime Organization (IMO)
      • Ship could be in compliance with IMO standards in EEZ, but violate State standards once in territorial waters
jurisdiction13
Jurisdiction
  • UNCLOS – Jurisdiction
    • High seas – beyond 200 nautical miles
      • No national jurisdiction
jurisdiction14
Jurisdiction
  • Innocent passage
    • All jurisdictional zones are subject to “innocent passage”= transit passage of vessels on the sea
jurisdiction15
Jurisdiction
  • Innocent passage
    • Qualifications
      • Innocent passage does not protect
        • Any act of wilful and serious pollution in contravention of international law or
        • Any fishing activities
      • Coastal state may adopt laws limiting right in regard to conservation of living marine resources, preservation of environment, and control/reduction of pollution
        • But not based on design, construction, crew or equipment, unless based on international standards
jurisdiction16
Jurisdiction
  • Coastal states v. flag states
    • Coastal states = countries with actual coastal territory
      • Have jurisdiction over ships when ships are in their territorial seas
    • Flag states = countries that license vessels to operate
      • Have jurisdiction over ships that fly their flags
      • Does not matter who owns the ship or what the nationality of the crew is – only relevant thing is the flag
      • May create problems if dealing with “flags of convenience”
oil pollution1
Oil pollution
  • Oil pollution = most pervasive problem
    • 3,200 tankers per day
    • Huge: largest supertanker = 600,000 tons of oil
      • Line of fuel trucks 320 kilometers long
oil pollution operational discharges
Oil Pollution: Operational Discharges

If oil and ballast tanks are the same, emptying tanks will discharge oil –

0.4% of total cargo = 400 tons per voyage

oil pollution impacts
Oil pollution impacts
  • Impacts vary depending on type of oil
    • Different chemical compounds
    • Natural seeps are different from refined oils
      • Bacteria eat oil from natural seeps
    • Location, species, depth, etc., all matter
oil pollution early treaties
Oil Pollution Early Treaties
  • International Convention for the Prevention of Pollution of Sea by Oil (OILPOL)
    • First – no discharges within 50 miles of coast
    • Then – no discharges unless
      • Proceeding en route
      • Discharge = less than 1/15,000 of capacity
      • Rate = less than 60 liters per mile
      • Distance = more than 50 miles from land
    • Neither worked
oil pollution treaty marpol 73 78
Oil Pollution Treaty: MARPOL 73/78
  • Covers operational discharges, spills, and unintentional releases
marpol 73 78
MARPOL 73/78
  • General requirements
    • States will establish international rules and standards
    • “flag states” shall adopt laws for the prevention and reduction of pollution from vessels flying their flags
    • Coastal states may adopt regulations to prevent pollution
      • May apply them to vessels during innocent passage, so long as they don’t hinder innocent passage
oil pollution2
Oil pollution
  • MARPOL – 3 elements
    • Mandatory discharge standards
    • Construction, design, equipment, and manning specifications (CDEM)
    • Navigation standards
marpol 73 781
MARPOL 73/78
  • MARPOL – 3 elements
    • Mandatory discharge standards
      • = limits on discharges
      • Operating procedures for washing tanks and ballast water
      • Port States must provide reception facilities
marpol 73 782
MARPOL 73/78
  • MARPOL – 3 elements
    • Construction, design, equipment, and manning specifications (CDEM)
      • New ships must have segregated ballast tanks
      • Other requirements for filters
      • New ships need double hulls
marpol 73 783
MARPOL 73/78
  • MARPOL – 3 elements
    • Navigation standards in special areas
      • Special areas – oceanographical/ecological condition
        • Need special protection and standards
        • Examples: Mediterranean Sea, Baltic Sea, Black Sea, Red Sea, Gulf
        • No discharge allowed
marpol 73 73
MARPOL 73/73
  • MARPOL – Compliance
    • Specific tanker standards
    • Reporting and documentation requirements
marpol 73 784
MARPOL 73/78
  • MARPOL – Compliance
    • Specific tanker standards
      • Tankers > 150 tons
      • Ships > 400 tons
      • Must get International Oil Pollution Prevention (IOPP) Certificate – shows that ship meets technical standards
      • Surveys at least every 5 years + intermediate inspection
      • IOPPs issued by international classification societies
        • Not States
        • Is this good or bad?
marpol 73 785
MARPOL 73/78
  • MARPOL – Compliance
    • Specific tanker standards
      • If ship doesn’t meet applicable standards and ship owner/operator does not take corrective action, IOPP withdrawn and Port state notified
marpol 73 786
MARPOL 73/78
  • MARPOL – Compliance
    • Reporting and documentation requirements
      • Oil Record Book
        • Records every ballasting/discharge
        • Loading of oil
        • Transfer of oil
        • Etc.
marpol 73 787
MARPOL 73/78
  • MARPOL – Compliance
    • Certification societies
      • Private companies
      • Often have different standards
      • What risks?
        • Pseudo-IOPPs
marpol 73 788
MARPOL 73/78
  • MARPOL – Compliance
    • Oil book and self-reporting
      • What risks?
      • What opportunities?
marpol 73 789
MARPOL 73/78
  • MARPOL – Compliance
    • Oil book and self-reporting
      • What risks?
        • Would you report every time you drove over the speed limit?
      • What opportunities?
        • Passengers – garbage discharges
        • Crew – “magic pipes”
oil pollution enforcement flag states v coastal states
Oil pollution enforcement: flag states v. coastal states
  • Flag states
    • Vessel is part of a flag state’s territory or nationality
    • Flag states can enforce against flagged vessel’s violations
      • Except coastal state authority is more powerful in territorial seas
oil pollution enforcement flag states v coastal states1
Oil pollution enforcement: flag states v. coastal states
  • Coastal states
    • May use territorial authority to enforce against flagged vessels in their territorial seas, so long as they don’t infringe on innocent passage
oil pollution enforcement flag states v coastal states2
Oil pollution enforcement: flag states v. coastal states
  • Port states
    • Jurisdiction based on presence of vessel in port
  • Port v. Coastal:
    • Coastal state jurisdiction – if pollution occurs in coastal waters, state acts as coastal state
    • If the only connection is based on ship’s presence, then state acts as port state
oil pollution enforcement marpol
Oil pollution enforcement: MARPOL
  • IOPP certificates
    • Port state may inspect to verify a valid IOPP exists
    • Port state may detain ship until ship can proceed to sea without presenting unreasonable threat of harm to marine environment if
      • clear grounds for believing ship doesn’t conform to IOPP or that IOPP is not valid,
      • Clear grounds for believing master or crew is not familiar with procedures
    • If ship doesn’t have IOPP, ok to inspect
oil pollution enforcement marpol1
Oil pollution enforcement: MARPOL
  • Coastal states may detain and institute legal proceedings if ships violate rules and cause “major damage or threat of major damage”
    • If violation happens in territorial waters, coastal state may enforce
    • Otherwise, coastal state must pass along findings to flag State for enforcement
      • Except: history of non-enforcement
oil pollution enforcement marpol2
Oil pollution enforcement: MARPOL
  • Flag states
    • If violation alleged, flag state may
      • Find vessel not guilty
      • No action b/c insufficient evidence
      • No action for “other and unspecified reason”
      • Give a warning
      • Levy a fine
      • Take other unspecified actions
oil pollution enforcement marpol3
Oil pollution enforcement: MARPOL
  • Flag states
    • Enforcement by Flag state preempts coastal or port State, except:
      • If discharge caused major damage to coastal State
      • If flag State has a history of non-enforcement
oil pollution enforcement marpol4
Oil pollution enforcement: MARPOL
  • Flags of Convenience
    • Ship owners often register vessels in countries known for weak enforcement
    • 30% of world’s shipping carried by ships operating under Liberia or Panama flags
      • Can employ foreign crews for cheap wages
      • Corporate laws allow anonymity = prosecution is difficult
oil pollution enforcement marpol5
Oil pollution enforcement: MARPOL
  • Flags of convenience – remedies?
    • Port state inspections + detention until repairs made
    • Port states may enforce violations outside of the EEZs – i.e., on the high seas
      • Coastal states may enforce for violations within EEZs
oil pollution enforcement marpol6
Oil pollution enforcement: MARPOL
  • Flags of convenience – remedies?
    • Limits on detention
      • May detain ship to inspect and enforce
      • But may not “unduly detain”
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