International Ocean Law

1. International Ocean Law Jurisdiction Marine Pollution International Fishing

2. 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

3. 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”

4. 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

5. 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!)

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

7. Jurisdiction

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

9. 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

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

11. 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

12. 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

13. 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

14. Jurisdiction

15. 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

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

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

18. 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

19. 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”

23. Oil Pollution

24. 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

25. Oil Pollution: The Notorious Spills Amoco Cadiz

26. 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

27. Oil Pollution: Operational Discharges

28. 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

29. 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

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

31. 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

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

33. 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

34. 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

35. Design Standards: Example

36. 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

37. Does MARPOL 73/78 work?

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

39. 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?

40. 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

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

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

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

44. 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”

45. MARPOL 73/78 – “Magic Pipe”

46. Oil Pollution: Sources of Spills

47. 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

48. 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

49. 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

50. 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