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The impact of the law of the sea convention on vessel-source pollution enforcement in the exclusive economic… Sarpong, George Agyemang 1984

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THE IMPACT OF THE LAW OF THE SEA CONVENTION ON VESSEL-SOURCE POLLUTION ENFORCEMENT IN THE EXCLUSIVE ECONOMIC ZONE By GEORGE AGYEMANG .SARPONG LL.B. (Hons.), The University of Ghana, 1981  A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in  THE FACULTY OF GRADUATE STUDIES (Faculty of Law)  We accept this thesis as conforming to the required standard  THE UNIVERSITY OF BRITISH COLUMBIA July, 1984  ©  George Agyemang Sarpong, 1984  In  presenting  requirements  this for  thesis  an  advanced  of  B r i t i s h Columbia,  it  freely  agree for  available  that  or  understood  that  financial  by  for  his  of  reference  and  study.  I  extensive  may b e her  shall  DE-6  a  (3/81)  t  e  J u l y 31,  copying of  granted  by  the  not  be  Columbia  further this  It  this  allowed without  Law  make  thesis  head o f  representatives. publication of  the  University shall  The U n i v e r s i t y o f B r i t i s h 1956 Main M a l l Vancouver, Canada V6T 1Y3  D  the  Library  permission.  Department  at  the  for  or  f u l f i l m e n t of  that  copying or  gain  degree  agree  purposes  department  for  I  permission  scholarly  in partial  my  is thesis my  written  ii  ABSTRACT The  enforcement  of  vessel-source  pollution,  a problem  of  significant global dimensions, had been l e f t entirely to flag-state competence  outside  unsatisfactory  the  arrangement,  territorial  seas.  This  was  an  since coastal states who were often  most affected by such pollution had no means of enforcement, but had to resort  to flag states who were often unwilling or even  unable to do so. The Convention on the Law of the Sea provides, in addition, coastal and port-state enforcement and prescribes the use of the I MO standards as the basis of enforcement. of  Since the main burden  enforcement action should occur before the vessel commits a  violation of pollution standards, much emphasis is s t i l l placed on flag-state enforcement under the Convention.  It is this idea, and  in particular, the right of pre-emption accorded flag-states that has raised doubts about the efficacy of the enforcement regime under the Convention.  It has been said that the UNCLOS III  scheme  of enforcement is unlikely to be effective given the poor record of flag state enforcement in the past. A contrary  view is presented in this  enforcement in the Exclusive Economic Zone. tripartite  scheme of f l a g ,  port,  study  in relation to  It is argued that the  and coastal - state enforcement  contains sufficient checks and balances to ensure a viable and  effective system of enforcement.  Furthermore, states that ratify  the Convention would have to ensure conformity of their legislation with the Convention's texts. consistency  in  national  cooperation  in the war  This would lead to uniformity and  legislation, against  thus  vessel-source  enhancing  states'  pollution.  To  illustrate this point, the study examines Canadian vessel-source legislation in the light of the Convention on the Law of the Sea.  - iv -  ACKNOWLEDGEMENTS  I take  this  opportunity  to express my sincere thanks to  Professor C.B. Bourne for his consistent helpful guidance, comments and criticisms throughout the preparation of this Thesis. James McConnell's  Seminar,  "Topics  in International  Transactions" was a valuable source of knowledge.  Mr.  Law and  Mr. McConnell  has also read earlier drafts of this work and has provided many valuable criticisms and comments. For these, I am grateful to him. I am also grateful to Ms. Alice Doell, graduate student, for typing several  drafts of this work.  My special  thanks to the Law  Foundation of British Columbia, without whose financial aid my stay at this University would have been impossible.  Finally, to my  family, I say thank you for your encouragement and tolerance.  - V -  ABBREVIATIONS  A.W.P.P.A  The Arctic Waters Pollution Prevention Act  A •W•P •P •C •  Arctic Waters Pollution Prevention Certificate  CDEM Standards  Construction, Design, Equipment, and Manning Standards  COLOREG 72  Convention on the International Regulations for Preventing Collisions at Sea, 1972  Convention  The United Nations Convention on the Law of the Sea  C.S.A.  Canada Shipping Act  E E Z.  Exclusive Economic Zone  E F Z.  Exclusive Fisheries Zone  I.C.J.  International Court of Justice  I C N T.  Informal Composite Negotiating Text  I L C.  International Law Commission  I L 0.  International Labour Organisation  I.O.P.P.C.  International Oil Pollution Prevention Certificate  I M 0  International Maritime Organisation  Intervention 69  International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969  L D C, 72  Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972  L L 66  International Convention on Load Lines, 1966  MARPOL 73/78  International Convention for the Prevention of Pollution from Ships, 1973, as amended by its Protocol of 1978  0 A U  Organization of African Unity  O.D.I.L.  Ocean Development and International Law Journal  OILPOL 54  International Convention for the Prevention of Pollution of the Sea by Oil, 1954  R•S•C •  Revised Statutes of Canada  R SN T  Revised Single Negotiating Text  S.C.  Statutes of Canada  S N T.  Informal Single Negotiating Text  SOLAS 74  International Convention for the Safety of Life at Sea, 1974  S T C W 78  International Convention on Standards of Training, Certification, and Watchkeeping for Seafarers, 1978  UNCLOS I  The First United Nations Conference on the Law of the Sea  UNCLOS II  The Second United Nations  Conference on the  Law of the Sea UNCLOS III  The Third United Nations Conference on the Law of the Sea  - vii -  UNCTAD  United Nations Conference on Trade and Development  -viii-  TABLE OF CONTENTS Page ABSTRACT  ii  ACKNOWLEDGEMENTS  iv  ABBREVIATIONS  v  CHAPTER I  INTRODUCTION  1  1. Background to the Study  1  2. Marine Pollution - An International Problem  3  3. The Exclusive Economic Zone  11  4. Prescription and Enforcement in Marine Pollution Law  25  5. Footnotes, Chapter I  II  28  THE PRE-UNCLOS III REGIME OF ENFORCEMENT 40 1. Flag-state Competence: Origin and Nature of the Rule  .....  40  International Conventions ...  42  2. Flag-state Enforcement of  3.  Coastal State Enforcement  4. Footnotes, Chapter II  48 56  -ix-  III  THE UNCLOS III REGIME OF ENFORCEMENT 1.  69  Background to the Convention's Texts  69  2. The UNCLOS III Scheme of Enforcement 3.  IV  69  Footnotes, Chapter III  109  IMPACT OF UNCLOS III ON CANADIAN VESSELSOURCE POLLUTION LEGISLATION  133  1. Evolution of the Canadian EFZ...  136  2. The Arctic Waters Pollution Prevention Act 3. The Canada Shipping Act  140 .....  145  4. C.S.A. and International Standards  148  5. Canadian Response to the Challenge  V  150  6. Footnotes, Chapter IV  155  CONCLUSION  162  BIBLIOGRAPHY  165  -1 CHAPTER I INTRODUCTION  Background t o the Study  The  enforcement  outside  the  competence.  territorial  vessel-source seas  has  enforce  been enforcement  by  pollution!  been l a r g e l y  In the p a s t , however,  even u n w i l l i n g t o has  of  of  one of  a particular  convenience  s t a t e s .2  has been one of i n t e n s e d i s c u s s i o n and c o n t r o v e r s y , International  Maritime Organisation  Nations  Conference  latter,  a  state  on the  tripartite  Law o f  approach  enforcement  together  flag-state  many s t a t e s have been unable or  these r e g u l a t i o n s ;  flag  regulations  (IMO) the  The  matter  both w i t h i n the  and a t the T h i r d  Sea (UNCLOS I I I ) . 3  involving with  problem  flag,  coastal  safeguard  and  United At  and  i n the A r c t i c and o t h e r s p e c i a l a r e a s , was a d o p t e d .  object  this  scheme of  study  is  enforcement  to  a s s e s s the  i n the E x c l u s i v e  impact of  this  port-  enforcement  provisions of  the  The  UNCLOS  Economic Zone ( E E Z ) ,  III  which  f o r m e r l y formed p a r t of the h i g h s e a s . This  chapter  marine p o l l u t i o n ,  considers  the  nature,  an i n t e r n a t i o n a l  sources,  problem of  and e f f e c t s  several  of  dimensions;  i t w i l l f o c u s on marine p o l l u t i o n by o i l , 4 as w e l l as the nature of the EEZ and j u r i s d i c t i o n  t h e r e i n , w i t h a view to p r o v i d i n g a c l e a r  setting  The  for  examination related  the of  problem  study. the of  second c h a p t e r w i l l  pre-UNCLOS flags  of  III  regime  convenience.  of  be devoted to  enforcement This  will  and  provide  an the a  - 2 -  background f o r a f u l l e r u n d e r s t a n d i n g o f the UNCLOS I I I enforcement. examination Committee, of  An a n a l y s i s o f the scheme i s f u r t h e r of  proceedings  at  UNCLOS,  mainly  preceded by an i n the  deal"  on the b a s i s m a i n l y o f c o n s e n s u s .  This  f u r t h e r l i g h t on the r a t i o n a l e behind the p r e s e n t  scheme of  Third  where these r u l e s were d i s c u s s e d and agreed upon as p a r t  a "package  throw  the  scheme of  enforcement.  The C o n v e n t i o n ' s  will  tripartite  provisions will  then be  analyzed. It  has been  said  that  i n view  of  the r i g h t  of  pre-emption  a c c o r d e d f l a g - s t a t e s under the scheme, the system i s u n l i k e l y to be effective past.5 to  g i v e n the poor  r e c o r d of f l a g - s t a t e  A c o n t r a r y view w i l l  enforcement  considerably  in  the  enforcement  i n the  be e x p r e s s e d i n t h i s study w i t h regard  EEZ:  the  flag-state  s t r e n g t h e n e d under the C o n v e n t i o n .  regime  has  been  F u r t h e r the scheme  must be viewed not merely i n terms of f l a g - s t a t e competence, b u t as a whole.  Moreover,  the p r e s c r i p t i v e as w e l l  as the  enforcement  p r o v i s i o n s of the Convention c o n s t i t u t e a norm o r benchmark  against  which  parties  to  national  l e g i s l a t i o n must be judged.6  the Convention  would have e i t h e r  legislation,  o r even adopt  Convention's  texts.  devoted  the l i g h t of UNCLOS I I I . a  much e a s i e r ,  state  t o change o r modify  new l e g i s l a t i o n  To i l l u s t r a t e t h i s  to an e x a m i n a t i o n  Hence,  i n conformity  point,  existing w i t h the  a chapter w i l l  be  of the e x i s t i n g Canadian l e g i s l a t i o n  in  The o v e r a l l e f f e c t of these i s t o p r o v i d e  consistent,  u n i f o r m and hence e f f e c t i v e  enforcement based on i n t e r n a t i o n a l  standards.  regime  of  - 3-  Marine Pollution - An International Problem. Marine Pollution has been defined as; "the introduction by man, directly or indirectly of substances or energy into the marine environment (including estuaries) resulting in such deleterious effects as harm to living resources, hazard to health, hindrance to marine activities including fishing, impairment of quality for use of sea water and reduction of ammenities." 7  This definition, emphasizing activities of "man," is said to ignore the general problem of other changes that might impede beneficial  uses  of the water,  irrespective  of perpetrators.  Further, the notion of "deleterious effects" is also said to be imprecise: " i t is unclear whether pollution may be deemed to occur when the substances or energy have been introduced, but before harm to living resources of the sea or hindrance to marine activities can be demonstrated  ... [T]he environment  may already be  biologically irreversibly deteriorated before the detrimental or deleterious change can be demonstrated."  8  Okidi defines pollution as the: Introduction in any manner whatsoever, of any substances or energy, into the marine environment", including estuaries, which may result in deleterious effects as harm to living resources, hazards to human health, "hindrance to activities including fishing, impairment of quality for use of sea water, and reduction of ammenities (emphasis added).9 This definition has the merit of emphasizing not only human conduct, but all undesirable changes that may occur in the marine environment.  However, in a study such as this  enforcement, i t is unhelpful  dealing with  since activities embraced in the  - 4 -  phrase "in any manner whatsoever" such as 'acts of God' cannot be prevented by man. For our purposes, pollution of the marine environment means: "the introduction by man, directly, or indirectly, of substances or energy into the marine environment including estuaries, which result or is likely to result in such deleterious effects as harm to living resources and marine life hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of ammenities (emphasis mine).10 This definition emphasizing activities of man excludes occurrences such as natural seepage of oil and other minerals from land into the  oceans as well as foreign chemicals like sulphur introduced  into the seas by phenomena such as volcanoes and earthquakes. These are matters currently beyond human control.H phrase "which results  or is likely  Further, the  to result" in deleterious  effects is an improvement on the earlier definition and provides a solution to the second criticism levelled against the definition.12 In  addition, i t serves to emphasize that the marine environment  could legitimately be used for the disposal of non-deleterious waste.  Enforcement measures must, therefore, be limited only to  disposal actions that are likely to have consequential damage to the  marine environment; and in this, doubts must be resolved in  favour of enforcement measures. effects  as harm to living  Also reference to "deleterious  resources and marine  life",  also  emphasizes that other aspects of marine life such as the ecosystem are equally important for purposes of pollution prevention.  - 5 -  Marine pollution is a problem of several  dimensions: i t  affects the quality of the oceans in all parts of the world, i t affects all states and all states contribute to some aspects of the problem.  In particular, i f one considers the effects of marine  pollution on the living resources of the sea, very few marine pollution problems can be considered matters exclusively of local interest.13  Pollutants know of no national frontiers so that even  when pollution is localized, the effects of winds, currents and waves almost invariably results in a spread of these pollutants to other areas.  Traces of DDT have been located in remote corners of  Antarctica, illustrating the global nature of oceanic pollution.! Pollution  4  from oil is, however, probably the most widespread.  Indeed, oil slicks and tarry residues have been encountered in the ocean even in areas remote from shipping routes.15 In recognition of the global nature of marine pollution, the Convention (directly  requires  states  to "co-operate  or through competent  formulating  and elaborating  on a global  basis  international organisations) in  international rules, standards, and  recommended practices and procedures ... for the protection and preservation characteristic  of the marine regional  environment, . taking  features."16  into account  The enforcement regime  provided under the Convention for vessel source pollution is a step in this direction. Pollution control measures could be most effectively applied at the sources where pollutants originate, and five "sources based on man's activities may be discerned:  disposal of domestic sewage;  - 6-  argicultural  and industrial  waste; deliberate and operational  discharge of ship borne pollutants; pollution from the exploration and exploitation of mineral resources; and disposal of radioactive waste resulting from the peaceful uses of the oceans.  17  These  correspond broadly to the Convention's classification of pollution from land-based sources; by dumping; from vessels; from activities in the area; ^ 1  a n (  j f  r o m  o r  through the atmosphere. These, however,  are by no means mutually exclusive. The present study, based on vessel-source pollution,! mainly 9  by o i l , then, is an aspect of the overall global pollution problem, albeit a minor one.  It has been estimated for example that vessel-  source oil pollution accounted for only about 27.9 percent of the estimated 2.95 million tonnes of oil that entered the oceans in 1978.  The remainder was from land-based and other sources. The Convention  land-based  20  on the Law of the Sea, however, deals with  and other sources of pollution in general terms, but  rather provides a comprehensive enforcement mechanism for vesselsource pollution. Land-based pollution, originating as i t does from land, is an area where the notion of national sovereignty is particularly strong. States are not willing to accept international limitations on issues of vital interest that might result in a slowing down of their  development.  This  developing  states  bent  concomitant  environmental  is particularly  on  rapid  the case  industrialization  with the with its  hazards and hence need for preventive  measures against, for example, industrial fumes. Pollution control  -  7  -  from land-based sources has thus largely been a subject of national competence.  There is, however, a trend towards regionalisation on  the matter.21  Different considerations apply to vessels.  Being  movables, the harm from them may affect third states more directly. Further, although subject to flag-state competence, vessels may be often  found  jurisdiction.  in other coastal Vessel-source  jurisdictional problems.  22  areas  subject to other states'  pollution  thus  raises  peculiar  Besides, vessel accidents in particular  those from tankers resulting in large spills, often have dramatic and devastating consequences, and they are certainly spectacular media events. The sight of a Torrey Canyon disaster involving some 120,000 tons of crude oil or an Amoco Cadiz grounding, involving a  spillage of over 200,000 tons of o i l , has provided impetus to act against this  type of pollution by the international community.  Pollution is one of the first environmental problems to have been tackled internationally and the IMO, a specialized agency of the United  Nations, has  over 20 years  history  in this  field of  regulation. Vessel-source pollution may be divided into two broad groups: accidental  and operational  discharges from vessels.  Accidental  discharges occur in the form of terminal spills during loading and unloading of tankers; there is, in addition, vessel accidents. These result from factors such as structural failures, groundings, collisions (in turn the result of navigational errors), breakdowns, fires, and rammings.  Even though these contribute less than 10  percent to the oil pollution problem, their impact has been most  - 8 -  spectacular.  By far, the worst accident record comes from old  vessels registered in flag of convenience states. control  of  this  type of  pollution  involves  Measures for the the  provision  of  adequate structural and equipment standards, the proper management of vessel  traffic,  the  technical  competence of crews arid the  control of flag of convenience vessels. Operational discharges result from ballasting of vessels,23 dry  docking, the discharge of oil from bilges, as well as the  intentional discharges of oil from vessels.  Operational discharges  account for the greatest percentage of vessel-source pollution. Control measures have thus largely focused on this problem whose elimination  depends on  design, equipment, and  the  provision  of adequate  manning standards  in  construction,  combination with  reception facilities. The  immediate effects  been most graphic: wild  24  of oil pollution on marine life has  birds, fisheries and marine flora all  suffer in varying degrees.  Tens of thousands of birds, their  feathers clogged with o i l , have died after each of the larger accidents such as the Torrey Canyon and Amoco Cadiz disasters. Studies carried out some six months after the latter disaster, revealed that some 30 percent of the local fauna and 5 percent of the flora had been destroyed.  The  long term effects of spills  depend on such factors as temperature, currents, winds, the volume, type and concentration of oil discharged and the location of the spill.  - 9-  Oil pollution, in particular large spills, have very harmful effects on fisheries; they provide an environment suitable for disease-producing bacteria or viruses; cause failure of individuals to survive and maintain the population species; lower the nutrition of organisms by affecting their ability to find prey; interfere with digestion or assimilation of food by contamination; and cause mutations  that are detrimental to the survival  of the young.  Further, pollution, in conjunction with climatic variables and exploitation,  over  imposes new  affects  marine  stock;  in particular, i t  stresses that could hamper the recovery of depleted  stock, make organisms more sensitive to climatic extremes, and have unpredictable long-term ecological impacts.  Soviet scientists have  argued that prolonged oil contamination causes a decline in primary productivity and a shift in the composition of the phytopiankton and ultimately a reduction in fisheries potential.  This could be  very harmful, especially in the frigid northern regions where the natural decompositon of spilled o i l , so essential to holding down its damage to living things, proceeds zones.  far slower than in warm  In addition, pollution concentrations tend to be highest in  coastal and landlocked seas, areas where migratory fish such as salmonids must pass through in order to reach their fresh water spawning sites. There could also be other kinds of physical and 'aesthetic damage consequent upon oil pollution.  These include the tainting  of nets and fishing gear, the contamination of pleasure yachts, lights, buoys, harbour works, and beaches and coastline, generally,  - 10 -  with consequent losses to the tourist industry. The Mediterranean, a premier tourist region with over 100 million tourists each year, is now threatened by offshore pollution.  Dozens of beaches in  Italy and Israel have had to be closed down for health reasons. Fishermen may be unable to fish in polluted waters or their catches may  be tainted, with consequent  Nigerian  fishermen lost  their  losses.  For example, certain  livelihood  for months in 1980  following an explosion at a Texaco rig which spread oil slicks over 60 miles of shore line and up into the Niger delta for 20 miles. Oil pollution could also affect human health.  The carcinogens  ingested by fisheries in polluted waters could get concentrated in the food chain. consumption  These agents become a hazard to man through the  of fish.  There is also the immense cost of taking  measures, both preventive and curative such as the spraying of detergents and the laying of booms. value of the lost cargo.  Equally significant is the  And yet, the picture has not changed  despite various attempts to control  the problem.  As the UNEP  report for the period 1972-82 concludes on the matter, "world wide oil pollution continued to be a potential threat to marine life and habitats in the 70s both as a result of major accidents and through persistent chronic pollution at specific localities."25 Conventions have been concluded under IM0 auspices to combat both operational and accidental discharges. The problem, however, has been their enforcement. enforcement  have  Based on flag-state competence, their  been largely  ineffective.  Besides, the  International Convention for the Prevention of Pollution from ships  - 11 -  as amended by its protocol of 1978 (MARPOL 73/78), the latest and most comprehensive Convention on vessel-source  pollution, leaves  the jurisdictional aspect, including enforcement measures, of the Convention  to UNCLOS III to resolve.  The effectiveness or  otherwise, of the UNCLOS texts on the matter, will thus determine the overall efficiency of MARPOL 73/78 in pollution prevention. The Exclusive Economic Zone (EEZ) This  study  is devoted  to the enforcement  regulations in the EEZ for a number of reasons. formed part of the high seas.  of pollution  The EEZ formerly  A study of enforcement by coastal  states of vessel source pollution measures in the zone thus gives an  idea  of the nature and extent of the expansion of states  jurisdiction beyond the territorial seas.  With the advent of the  EEZ, i t is estimated that as much as 40 percent of ocean space is placed under some form of national jurisdiction.  Further, much of  the world's shipping as well as resources are located in the zone. The  EEZ is the locus  of virtually  all exploitable  offshore  hydrocarbons, minerals such as sand, gravel, tin, polymetallic sulphide and cobalt crusts and manganese nodules; over 90 percent of commercially exploited living resources of the sea, nearly all marine plants and all known sites suitable for the production of energy from the sea. pollution  26  Hence, the effectiveness or otherwise of  enforcement measures  in the zone would reflect on  resource management and conservation which is of prime importance to states and the international community as a whole.  - 12 -  Also, the EEZ is neither the high seas, nor territorial seas, but a zone sui generis (discussed below).  A study of pollution  enforcement in the zone in the light of UNCLOS III, thus provides an idea as to the nature of jurisdiction in this novel regime under international  law.  The sui generis nature  particular, has been a controversial issue.  of the EEZ, in  We thus devote some  time to its examination and clarification. The EEZ, under the Convention,27 -j  S a n  starting at the  a r e a  outer edge of the territorial sea and extending up to a limit of 200 miles from the baseline from which the territorial measured.  There, coastal  sea is  states enjoy sovereign rights to the  resources of the seabed, of the subsoil and of the superjacent waters as well as jurisdiction with regard to marine scientific research, environmental  preservation, and the establishment of  artificial islands, installations and structures.  Interwoven with  these rights are the rights of all other states to the enjoyment of the traditional high sea freedoms of navigation, overflight, and the laying of submarine cables, and pipelines. enures special  to states without the requirement situation  or circumstances.  The 200 mile right  of any proof of any There  i s , however, a  requirement for a formal declaration of such a zone, unlike, for example, the continental shelf  whose existence needs not be  declared.28 The EEZ regime29 allows a two-fold utilization of the seas. It ensures coastal states' sovereignty over the resources adjacent to  its coast, whilst  guaranteeing  other states the necessary  - 13 -  facilities  of communication and  transit.  It is a compromise  between those who would deny the coastal state rights over the resources beyond the territorial sea limits and those who advocate full  or limited jurisdiction over the resources of those areas.  The concept is economic and not political.  Its roots lie in the  Truman proclamation of 194530 in which the United States asserted jurisdiction over the resources of its continental shelf.  This  proclamation, however, made i t clear that the United States did not intend to affect the character, as high seas, of the waters above the  continental  navigation. functional  shelf, and  It was  their  right to free and unimpeded  this proclamation, then, that initiated the  approach to jurisdiction  over the  seas; as Polard  observes, " i t would be difficult to deny that the claim advanced by President Truman on behalf of ... the United States in respect of the non-living resources of the continental shelf ... was a claim to  an  economic zone of exclusive coastal state jurisdiction"  (emphasis added) The  Truman proclamation  was  an  attractive  precedent,  especially for the Latin American states who  followed suit with  sometimes contradictory  claims.  movement, two  and  even fantastic  groups were discernible: the  In  moderates and  this the  extremists, one advocating a territorial sea of 12 miles; the other 200 miles.  Amongst the extremist states that declared a 200 mile  territorial  sea were Ecuador, Peru, and Uruguay.  However, an  accord was arrived at between the two groups in the Santo Domingo  - 14 -  Declaration of 1972 on the "Patrimonial Sea," which was adopted by an affirmative vote of 10 of the 15 states present.  32  The Declaration involved an assertion of jurisdiction up to 200 miles from the baseline; 12 miles of territorial seas and the remainder, an external patrimonial sea zone. asserted  their  sovereign  rights over the  There, the states renewable  and  non-  renewable resources found in the water, on the sea-bed, and in the subsoil of the patrimonial sea subject to high sea freedoms such as navigation and overflight. The considerations were, thus economic and  not  political.  extremists  view  territorial  sea  conceptualized territorial  Furthermore, a closer look  revealed of 200  that,  miles,  although " i t was  in. the traditional  sense.  they not  at even the  insisted  on  a territorial  It was,  a sea  in fact, a  sea with a differential juridical content, the first  twelve miles of which were assimilated to the territorial  sea in  the traditional sense, and the remaining one hundred and eightyeight, virtually indistinguishable in juridical configuration from the corresponding area in the patrimonial sea."33  Indeed, i t has  been said that the term "patrimonial sea" was adopted to afford the extremists of Latin America "a plausible opportunity  to abandon  their verbal extremism and to embrace the language of moderation without  significantly  policy."34  i  na n y  compromising  positions  of  principle  or  case, the effect of the negotiations at UNCLOS  III and developing states alliance under the banner of "The Group of 77" was a shift, in position in support of the EEZ concept which  - 15 -  was  in fact  not  radically  different  from the  concept of the  patrimonial seas.35 The EEZ originated in Africa.36 Kenya at the 1971  i t was first advocated by  Colombo session of the Afro-Asian Consultative  Committee. The concept was endorsed by the Organization of African Unity (OAU) Council of Ministers in their May 1973 Declaration on the issues of the Law of the Sea.  Subsequently, Kenya, together  with 13 other African states submitted draft articles on the EEZ to the U.N. Sea Bed Committee.  These articles form the basis of the  EEZ as enunciated under the Convention.37 In these articles, the emphasis was on the establishment of an EEZ  "for the  benefit of  their  peoples  and  their  respective  economies in which they shall have sovereignty over the renewable and non-renewable natural resources for the purpose of exploration and exploitation."38 jhe draft emphasized that "ships and aircraft of all states, whether coastal or not, shall enjoy the right of freedom of navigation and overflight and to lay submarine cables and pipelines ..."39 Again, like the patrimonial economic and  not  political.  sea concept, the emphasis was  Admittedly,  the  draft, and  the  Convention's provisions for that matter, referred to jurisdiction for the control, prevention, and elimination of pollution, as well as marine scientific research (article VII). matters  related  conservation.  to  resource  exploration,  These are, however, exploitation,  and  Indeed, to most of the delegates who supported the  EEZ regime at UNCLOS, environmental preservation was as important  - 16 -  as resource allocation.  As emphasized by a Canadian delegate, the  concept of the 200 miles EEZ "did not relate simply to control of resources: the support of her delegation and of many others for the economic  zone was  based on recognition of the fact that  environmental management was inseparable from resource management. Accordingly,  there  environmental  objectives against resource objectives, [or vice-  versa]".  could  be no question  of a trade-off of  40  The EEZ, then, is a product of states seaward expansion that arose out of factors like the growing demand for food (fisheries) and  industrial  and control.  raw materials and environmental  protection  This movement was accentuated by post World War II  emergence of states. Western powers.  Virtually all these had been colonies of the  Independence meant their ability to do away with  the conservative territorial sea breadths of their colonial masters in order to increase their wealth from the sea. The pre-UNCLOS III regime of territorial-high seas dichotomy was not a suitable medium for the attainment of these objectives. The notion of high seas meant that all states had rights to the resources of the area, whilst an expansion of the territorial seas out to 200 miles meant an infringement of navigational rights, something the maritime states were not willing to accept.  The resultant compromise was  the EEZ; "an accomodation that guarantees international rights." It trillions  is mainly  41  the resources  of dollars,  not only coastal, but  of the zone valued  at many  that have led states, particularly the  - 17 -  developing ones for whom they are so crucial for socio-economic development, to clamour for the zone. However, this means a sellout  of the  interests of the  landlocked  and  geographically  disadvantaged developing states (LL6DS). Furthermore, with the exception states  of a few South American states, the developing coastal  would  receive  narrow  slices  of  200  miles  that were  relatively resource poor and prospectively difficult to manage. In the circumstances the actual beneficiaries were developed states like Canada, the United States, the United Kingdom, Australia, and Norway.  42  The EEZ as a Customary Institution By late 1982, 56 states had established a 200 mile EEZ, and 36 had declared a related 200 mile Exclusive Fisheries Zone (EFZ). The  division of states into those claiming only EFZ and those  claiming  EEZ,  is  international law.  a  reflection  of  developments  in customary  43  With regards to the 200 miles fisheries zones, such states generally do recognize navigational rights by other states in the zone, with sovereignty limited to living resources. the EFZ is the conclusion  of bilateral and other agreements by  coastal states with other states. not  detract  from these states  rather they represent  A feature of  These arrangements, however, do sovereignty  over the  resources;  "practical instruments in the exercise of  sovereign rights: in particular insofar as [such] coastal state by its own will chooses to allocate fishing rights to other states." In  the  Fisheries  Jurisdiction  case 5 4  however,  44  the  - 18 -  International Court of Justice (ICJ) accorded recognition only to 12 mile EFZs.  It may be recalled that in that case, Iceland had  proclaimed a 50 mile EFZ, the effect of which was to exclude British fishermen who had traditionally fished in the waters of the zone.  The United Kingdom (U.K.) naturally challenged this. The  ICJ had to decide, inter alia, whether Iceland's claim to a 50 mile EFZ was contrary to international law, and whether i t was opposable to the U.K. The Court did not state expressly whether Iceland's action was contrary to International Law, although i t held that the 50 mile EFZ was not opposable to the U.K.  On the permissible extent of  the EFZ, i t said: Two concepts have crystallized as customary law in recent years arising out of the general consensus revealed at that conference. The first is the concept of the fishery zone, the area in which a state may claim exclusive fishery jurisdiction independently of i t s territorial sea; the extension of that fishery zone up to a 12 mile limit from the baseline appears now to be generally accepted (emphasis added)46 The  Court  conceded the fact that several states had asserted  jurisdiction beyond this limit and the matter was under discussion at UNCLOS III.  Its view, however, was that these assertions of  jurisdiction beyond 12 miles and various proposals and preparatory documents presented to UNCLOS III by states on the matter must be regarded as "manifestations of the views and opinions of individual states  and as vehicles of their  aspirations, rather than as  expressing principles of existing law".  47  Consequently, the Court  - 19 -  said i t could not "render judgment sub specie legis ferendae, or anticipate the law before the legislator had laid i t down."  48  The things,  Court's judgment has implying  that EFZ  been criticized as, among other  claims  in excess of 12 miles were  contrary to international law, a conclusion i t arrived at without proper regard to the prevalent negotiations  state practice and the on-going  at UNCLOS III which all pointed to a progressive  development of the emerging EEZ/EFZ concept.49 Fleischer points out:  j  n  any case, as  "Since 1974...state practice then existing  which in itself represented strong aguments in favour of rights (to 200 mile limits)has been supplemented by a vast amount of practice concerning 200 mile zones in the wake of UNCLOS III negotiations. These zones are either 200 mile fishery zones or economic zones ...There can be no doubt that...possibly the most important role of the Convention as its predecessors in the form of negotiating texts have...been instrumental in bringing about the larger amount of the new existing practice on coastal limit of 200 miles."5° Essentially then, the EEZ is a well established institution of customary international law. the  recent  Tunisia-Libya  This view was affirmed by the ICJ in continental  shelf case,51  albeit in  an obiter dictum: "the concept of the Exclusive Economic Zone...may be regarded as part of modern international law."52 However, in terms of  specific  authority  permitted  to be  exercised within the zone, there appears to be no agreement amongst coastal states. This is the view of Professor Burke53 who, after a study of state legislation on the subject, has stated that "some of  - 20 -  these states appear to regard the zone as simply another parcel of national territory...Although other claimants fall level  of acquisitiveness, they  short of this  demand potentially  harmful  certainly unjustified exclusive authority over navigation.  and Still  other zone claimants refrain from direct assertion of authority over navigation but nonetheless pose a threat because they claim exclusive authority for protection of the marine environment."  54  A lack of uniformity and consistency in a practice, elements which together with opinio juris are very vital to the establishment of a customary rule on a matter, casts doubts on the status of the EEZ as a customary norm of international law.  As emphasized in the  Asylum case55 "the party which relies on a custom...must prove that this custom is established in such a manner that i t has become binding on the other party. [The Party] must prove that the rule invoked by i t is in accordance with a constant and uniform usage..." (emphasis added) 56  However, with regard to these legislative acts on territorial sea claims, many are without pretence to sovereignty in the traditional sense.  Furthermore,  some of  the  developing  coastal states  proclaimed 200 mile territorial seas in the wake of UNCLOS III as a basis for negotiations and have shown readiness to settle to a 12 mile  territorial  sea,  if a comprehensive 200  economic zone is adopted.57  mile exclusive  yet s t i l l , for others, the assumed  rights to pollution control with its potential for infringement on navigational rights are nugatory; lacking as they do, the necessary resources and miles.  appropriate technology  to police these vast 200  In any case,si nee virtually all these states may become  - 21 -  parties to the Convention, they would have to modify or even change their  legislation to conform with the Convention's provisions.  Indeed, the Convention's against which  provisions  are the norm or benchmark  state legislation may be evaluated.58  £  v e n  t  n e  United States, a non-party to the Convention, has proclaimed an EEZ.59 under the Convention, the EEZ is neither the high seas, nor territorial  seas, but a zone "sui generis."  This view of the  matter is, however, not accepted by certain states.  Some maritime  states, like the U.K., argue that the EEZ is high seas, whilst certain  coastal  states  would want  to subsume i t under the  territorial seas regime. The issue was one on which delegates were most divided at UNCLOS III. The EEZ as High Seas A classic formulation of the nature of the high seas, with its corollary,  the freedom  of the seas, is that  of Professor  Schwarzenberger in his Hague lectures of 1955. "Under international customary law, the right of use of the high seas, the air space above them and the sea bed may be exercised for any purposes not expressly prohibited by international law as for instance for sea and air navigation, fishing, laying of submarine cables and pipelines, naval exercises and wartime operations."60 Implicit in this definition is a common use right of all states, of the  high seas.  Certain states, both in and outside UNCLOS III,  because of fear of creeping jurisdiction, argue that the EEZ has a high  seas  character.  The F i j i ,  Indonesia, Mauritius, and  Philippines draft articles on the high seas submitted to the UNCLOS III Second Committee, for example, simply stated that the high seas  - 22 -  meant "all parts territorial  of the sea that  seas or in the internal  are not included  in the  waters of a state..."  61  Admittedly, the EEZ is an area that formerly formed part of the high seas, but i t is not now the high seas.  For, in terms of  Schwarzenberger's common use understanding of the high seas, the resources  of the EEZ, both living and non-living, belong to the  coastal state. resources  Further, unlike the high seas whose non-living  are to be exploited under international arrangements,  these resources in the EEZ are exclusive to the coastal state in the sense that if i t does not choose to explore or exploit i t , that is  its own affair,  consent.  but no one else may do so without its  62  The view that the EEZ is not the high seas is also supported by certain provisions of the Convention: the exclusion of the high seas freedom of fisheries from the EEZ; the definition of the high seas, inter alia, as all parts of the sea not included in the exclusive economic zone... of a state (emphasis added); and the requirement that states in the EEZ shall have due regard for the rights and duties of the coastal state and shall comply with the laws and regulations  adopted  by the coastal  state; ^ the 6  attribution of rights by article 59 does not resolve doubts in favour of the high seas. basis of "equity". rights  Such doubts are to be resolved on the  In addition to fisheries, the more novel  of scientific  (although circumscribed)  research  and environmental  preservation  are also subject to the jurisdiction of  coastal states. Perhaps the only important high seas freedom left  - 23 -  in the EEZ is freedom of navigation; but even here, as will be seen later, coastal state enforcement of vessel-source pollution in the name of living  resource  conservation  is a potential source of  threat to freedom'of navigation in the zone. The EEZ, then, is not the same as the high seas, for the denudation of other states' high seas freedom in the zone as evidenced by the Convention's provisions on the matter, refute any notion of its being the high seas. The EEZ as a Territorial Sea As observed above, the EEZ in its origin was dictated mainly by economic considerations devoid of any pretences to sovereignty. In this i t differs from the territorial seas whose evolution was motivated especially by security considerations.  64  Under the 1958 Convention on the Territorial Seas which was said  to be declaratory of customary  international law, state  sovereignty over the air space, over the territorial sea as well as to its bed and subsoil was recognized albeit the Convention failed to establish the breadth of the zone.  This was made subject to  "innocent passage" couched in terms of its being non pre-judicial to the peace, good order, or security of the coastal state. The Convention on the Law of the Sea established a 12-mile territorial seas breadth as opposed to the EEZ's 200 mile limit. It elaborates in its article 19, a regime of innocent passage by itemizing activities that render passage non-innocent, as well as matters over which coastal states may legislate (article 21). With regard  to navigation, a significant  development  is the trend  -  24 -  towards international standards of enforcement; international, not national  construction  standards  only,  design,  equipment  are permitted.  and manning  In this wise,  there  (CDEM) is a  resemblance to pollution control in the EEZ where international standards are the rule. However, other features of the territorial sea, such as rights to submarine cables and pipelines, sovereignty over the airspace, sea-bed and sub-soil, as opposed to functional rights in the EEZ, and control over military activities, distinguish the territorial sea  from the EEZ.  Further,  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, including weapons exercise.65 constitutes  "temporary  suspension"  as well  what  as the necessary  security considerations are the discretionary competence of coastal states.  This rule is inapplicable in the EEZ where the prompt  release of vessels is required on the posting of a bond in the event  of violations of international standards.  The EEZ as "Sui Generis" The EEZ, then, cannot be assimilated to the territorial seas, neither can i t be subsumed under the high seas: i t is a zone sui generis; a multifunctional zone of jurisdictional competence that allows a two-fold utilization states  sovereignty  guaranteeing,  of the seas.  over the resources  at the same time,  other  facilities of communication and transit.  It ensures coastal of the zone whilst  states  the necessary  As Mr. Aguilar, UNCLOS  - 25 -  III Second Committee's chairman put i t : "It is a zone sui generis...the matter should be addressed in terms of residual rights.  In simple terms, the rights to resources belong to the  coastal state, and insofar as such rights are not infringed, all other states enjoy the freedoms of navigation and communication."66 The EEZ is thus a new entrant to the international scene. Consequently, the exercise of states' jurisdiction in the zone must not be viewed from the old terri tor iai-high seas distinction. The present study based on enforcement of vessel-source pollution in the zone provides an insight into an aspect of the nature and scope of this novel regime under international law. Prescription and Enforcement in Marine Pollution Law As observed, the Convention grants coastal states jurisdiction with regard to the protection and preservation  of the marine  environment in the EEZ. Jurisdiction has been defined as the power of a sovereign state to affect the rights of persons whether by legislation, executive decree, or by the judgment of a court.67 An aspect of jurisdiction is thus prescription and enforcement. Prescription of vessel-source pollution standards have, since 1959, been the responsibility of the IMO.  It develops standards  and gets them incorporated in Conventions. Flag-states are then responsible for ratifying these Conventions and applying them on their vessel, wherever they may be.68  Coastal state prescriptive  competence in the pre- UNCLOS III era had been limited generally to the  territorial  sea.  UNCLOS III endorses  the use of these  - 26 -  international  standards; and provides for in addition, coastal  state prescriptive competence in Arctic and other special areas. In the general context of marine pollution, enforcement means the process by which such legislative or other acts are made effective or the process designed to compel obedience to such rules.  69  A distinction is, however, drawn between enforcement lato  sensu and enforcement stricto sensu in the area of vessel-source pollution: Enforcement lato sensu comprises all measures or methods for the effective application of principal rules concerning marine pollution and may include the adoption of secondary rules providing for penalties, the punishment of violations, intervention on the high seas in cases of accidents, cleaning-up operations and even the establishment of the material conditions for the effective application of principal rules (for example, residue reception facilities for the elimination of discharges into the sea). In contrast, enforcement stricto sensu refers to the punishment of violations of the principal rules which prohibit discharges or establish certain standards for design, construction, equipment, etc.70 The Convention's provisions on vessel-source pollution are based on the assumption that i t refers to punishment of violations (enforcement stricto sensu).  There are, however, two exceptions  namely, flag-state enforcement, which is wider in scope, and intervention on the high seas in case of emergency.71 Enforcement  stricto sensu is a continuous and inseparable  process. In practice, i t is divided into the following stages: the reporting or the discovery of the violation which involves measures such as inspection and surveillance; the investigation involving the collection  of all evidence  and  material  surrounding the  - 27 -  violation; the judgment which  involves the evaluation  of such  evidence and the determination of sanction and finally, the process of giving effect to the sanction determined (enforcement of the judgment).  A related process is the obtaining of security in  advance for the purpose of facilitating the enforcement of the judgment.  Security is usually obtained by the arrest of the ship  or its subsequent release upon depositing adequate bond.  Arrests  or some cases also serve investigation purposes.  72  The pre-UNCLOS III regime of enforcement was based largely on flag-state enforcement.  UNCLOS III provides for, in addition,  coastal and port-state enforcement.73  The present study focuses  mainly on the efficacy or otherwise of the enforcement of these internationally prescribed standards; for i t is the Convention's approach to the enforcement of these standards that has been the subject of criticism.  - 28 -  FOOTNOTES Chapter I Vessel-source pollution in this study denotes pollution mainly by oil arising out of operational and accidental discharges from ships.  For this purpose, a ship is any sea-going vessel  of any type whatsoever and any floating craft, but does not include an installation or device engaged in the exploration and exploitation of the resources of the sea-bed and the ocean floor  and the subsoil  thereof.  See art. 11(2), Int'l  Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties 1969 (Intervention 69), 9 Int'l Leg. Mat., 25 (1970); cf art. 2(4), Int'l Convention for the Prevention  of Pollution  from ships  1973 (MARPOL  73) as  amended, 12 Int'l Leg. Mat., 1319 (1973). See chap. 2, infra. The decision by the United Nations to convene UNCLOS III to formulate a comprehensive convention on the International Law of the Sea was the result of widespread dissatisfaction with the pre-existing legal regime for the oceans or a lack of i t . In particular, there was concern over the increased expansion of  coastal  states  jurisdiction  with  its potential for  conflicts and the infringement of navigational  rights, the  rational utilization of the living and non-living resources of the oceans for the benefit of mankind as a whole, the awareness of the endangered marine environment, and the seabed arms race among the big powers.  -29 -  The initiative for convening UNCLOS III dates from the Maltese proposal before the United Nations General Assembly in 1967, urging the world community to regard the area beyond the limits of national jurisdiction as the "common heritage of mankind."  This proposal was  attractive, and received the  active support, especially of the developing states who saw in i t a means of sharing in the wealth of the oceans, lacking the technology to exploit the area by themselves.  A number of  resolutions on the question of the reservation of the sea-bed and ocean floor exclusively for peaceful purposes and the use of their resources in the interest of mankind as a whole were adopted.  By Resolution 2340 (XXII), the General Assembly  established an ad-hoc comittee to study the peaceful uses of the sea-bed and the ocean floor beyond the limits of national jurisdiction. pollution.  A sub-committee of this body dealt with marine  Further, by Resolution 2749, the General Assembly  adopted the "Declaration of Principles" governing the sea-bed and  the  ocean  floor,  and  the  subsoil  thereof, and  by  Resolution 2750 on the same day, decided to convene in 1973, a conference on the Law of the Sea.  Consequently, the sea-bed  committee was enlarged and requested to prepare draft treaty articles and a comprehensive l i s t of items, among others, on the preservation of the marine environment including, inter alia, the prevention of pollution, for UNCLOS III. Subsequent to the report of the sea-bed committee, the  - 30 -  General Assembly by Resolution 3029 requested the Secretary General to convene the first and second sessions of UNCLOS III.  Further, by  Resolution 3067 (XXVIII)  the General  Assembly, in recognition of the fact that the problems of the seas were closely  interrelated  and  thus  needed to be  considered as a whole, decided that the mandate of UNCLOS III was  the adoption of a convention dealing with all matters  relating to the Law of the Sea. Participating  in the conference were not only states  (numbering 157 at the close of the conference), but some specialized liberation  agencies  the  United  movements recognized by  League. Namibia was Namibia.  of  The  committees, and  represented by  work of  the  Nations the OAU the U.N.  conference  was  as and  well  as  the Arab  Council for conducted in  all decisions in accordance  with the  "gentleman's agreement", were arrived at by consensus with no voting on such matters until all efforts at consensus had been exhausted. was,  The final act of the adoption of the convention  however, by voting.  A record 119 states signed the  Convention at Montego Bay, Jamaica.  It enters into force 12  months after ratification by 60 states.  The United States,  Israel, Turkey, and Venezuela voted against the Convention. The Soviet Union as well as many EEC states abstained.  The  Soviet Union, however, signed the Convention at Montego Bay. The United States and some of the EEC states' stand is mainly  - 31 -  in  opposition to the regime of the sea-bed  environmental regime under the Convention.  and not  the  On this and  general background information on UNCLOS III see: 21 Int'l Leg. Mat. 1245 (1982); U.N. Press Release, Doc. SEA/494, April 30, 1982; Platz Oder, The Third United Nations Conference on the Law of the Sea XV (Hamburg, 1975); J.R. Stevenson and B. Oxman, "The Preparations for the Law of the Sea Conference," 68  A.J.I.L. 1 (1974); E .L. Richardson,  "The United States  Posture toward the Law of the Sea Convention: Awkward but not Irreparable,"  20 San Diego  L. Rev. 505 (1983).  The  proceedings of the sessions are recorded in "The Third United Nations Conference on the Law of the Sea, Official Records," (vols i-xv). "Oil" in this study means petroleum in any form including crude oil, fuel oil, sludge, oil refuse and refined products. See Annex I MARPOL 73, 12 Int'l Leg. Mat., supra note 1, at 1335. See, for example, J. Peter A. Bernhardt, "A Schematic Analysis of  Vessel-source  Pollution:  Prescriptive  and Enforcement  Regimes in the Law of the Sea Conference," 20 Va. J. Int'l L. 249 (1980) esp. 298, 307. Ibid., 274. See "The Sea: Prevention and Control of Marine Pollution," U.N. Doc E/5003, May 7, 1971, para 45 (hereinafter referred to as "The Sea").  The definition was originally prepared by a  - 32 -  special  committee on Ocean Research/Advisory Committee on  Marine Resources Research Working Group. It has been accepted (in this amended form) by the Joint Group of Experts on the Scientific  Aspects  authoritative.  of  Marine  Pollution  (GESAMP) as  For a critique of this definition see CO.  Okidi, Regional Control of Ocean Pollution, chap I, (Sijthoff and Noordhoff, 1978). 8.  Okidi, ibid.,10.  9.  Ibid., 12.  10. The  United Nations Convention  (Convention)  U.N.  Doc.  on  A/Conf.,  the Law  of  62/122, Oct.  the Sea, 7,  1982,  reproduced in 21 Int'l Leg. Mat., supra note 1, at 1261. 11.  See James E. Hickey Jr., "Custom and Land-Based Pollution of the High Seas," 15 San Diego L. Rev. 409 (1978).  12.  Okidi, op. cit. supra note 9.  13.  See Oscar Schachter and  Daniel  Sewer, "Marine pollution:  Problems and Remedies," 65 A.J.I.L. 84 (1971 ). 14.  See Erik P. Eckholm, Down to Earth 79 (New York, 1982).  15. The sea supra note 7, at 5.  See also Annex II, (ibid.) for a  graphic illustration of mid-Atlantic ocean pollution in Report Delivered to the Permanent Mission of Norway to the U.N. by Thor Heyerdahl. 16.  See Convention supra note 10, art. 197.  17. The Sea, supra note 7, at 15. 18.  See Convention, supra note 10, arts. 207-12.  - 33 -  19.  See M'Gonigle  and Zacher,  Pollution,  Politics, and  International Law, chap. 2 (Berkeley, 1979). 20. Cowell's update Council  of 1973 United States National  Research  data quoted from D. Cormack, Response to Oil  Chemical Marine Pollution 5 (London, 1983).  and  The 1973 figures  are reproduced in M'Gonigle and Zacher, ibid., at 17. 21.  See Martin w. Holdgate (et al. eds.) UNEP Report, The World Environment, 1972-82 105 (Dublin, 1982).  22.  See Gr. T. Timagenis, Marine Pollution and the Third United Nations Conference on the Law of the Sea: The Emerging Regime of Marine Pollution 5 (London, 1977).  23. When a tanker has discharged its cargo, i t has to f i l l some of its cargo tanks with ballast water in order to provide the necessary stability.  As a certain amount of cargo is left  clinging to the tank walls and bottoms, the ballast water becomes contaminated with oil and the discharge of this dirty water causes pollution.  The Load on Top (LOT) system was  devised in the 60's to deal with the problem.  The oily  ballast water and tank cleaning residues are placed in a special slop tank where i t is allowed to separate. When i t is clean enough, the water at the bottom of the tank can be pumped overboard and fresh oil loaded on top of the oil which remains. See: IMO News, November, 1982, p. 10. 24. On the effects of oil pollution see M'Gonigle and Zacher, op cit. supra note 19; The Sea, supra note 7; Eckholm, op cit.,  - 34 -  supra, note 14, at 79; David William Abecassis, The Law and Practice Relating to Oil Pollution from Ships 133 (London, 1978); Pollution: An International Problem for Fisheries (FAO Rome, 1971); UNEP Report, op_ ci_t. supra note 21. 25. UNEP Report, ibid., at 92. 26. See Al vi d Pardo, "The Convention on the Law of the Sea: A Preliminary Appraisal," 20 San Diego L. Rev. (1983), at 497. 27. See Convention, supra note 10, arts. 55-75. 28. See C.A. Fleischer, "The Exclusive Economic Zone under the Convention Regime and in State Practice," 17 Annual Conference of the Law of the Sea Institute 9 (Oslo, 1983). 29. On the EEZ and its evolution in general, see: Ann L. Hollick, U.S. Foreign Policy and the Law of the Sea (Princeton, N .J., 1981), passim; Nasi la S. Rembe, Africa and the International Law of the Sea 116 (Alphen, 1980); C. Odidi Okidi, "The Role of OAU Member States in the Evolution of the Concept of the Exclusive Economic Zone," 7 Dal. L.J. 39 (1982); Bernard H. Oxman, "An Analysis  of the Exclusive  Economic  Zone as  Formulated in the Informal Composite Negotiating Text," in Clingan (ed.), Law of the Sea: State Practice in Zones of Special Jurisdiction 57 (Hawaii, 1982); Nawaz, "On the Advent of the Exclusive Economic Zone: Implications for a New Law of the Sea," in Anand (ed.), Law of the Sea: Caracas and Beyond 63 (The Hague, 1980);  Kwamena Ahwoi, "The Exclusive Economic  Zone: An Analysis of the Concept as Contained in the Revised  - 35 -  Negotiations Text," 14 U.G.L.J. 137 (1977); G.B. Stanford, "Canadian Perspectives  on  the Future Enforcement  of the  Exclusive Economic Zone: A Paper in Diplomacy and the Law of the Sea,"  5 Dalh. L.J. 73 (1979), esp. 105; Duke E. Polard,  "The Exclusive Economic Zone. The Elusive Consensus," 12 San Diego L. Rev. 600  (1975); J. Castaneda, "The Concept of  I.  Patrimonial Seas in International Law," 12 Indian J. Int'l 535 (1972);  Lewis M.  Alexander, "Ocean Enclosure Movement:  Inventory and Prospects", 20 San Diego L.  Rev. 561 (1983);  UNCLOS III, Off. Recs., 2nd Committee Proceedings. 30. The Truman Proclamation on the continental shelf is reproduced in 4 Whiteman, Digest of International Law 756 (Washington, 1965). On the Proclamation on Fisheries, see ibid., at 945. 31. Polard, supra note 29, at 605. 32.  Ibid.: See also Castaneda, supra note 29, at 538.  33. Polard, ibid., 606. 34.  Ibid.  35. There were some initial  differences between the Latin and  African approaches. The former were tolerant of claims to the margin  beyond  200 miles.  The  Africans were not.  The  Africans also called for the right of the landlocked and geographically resources  disadvantaged states  of the zones  to exploit the living  of neighbouring states,  possible  regional or sub-regional arrangements for resource management, and resolution of boundary disputes on the basis of equity as well as equidistance. 29, at 253.  See Ann L. Hollick, op. cit supra note  36  36.  See for example Rembe Okidi, Nawaz supra note 29.  37. 12 Int'l Leg. Mat. 1246, 1973. 38. Ibid., art. 11. 39.  Ibid., art. iv.  40.  Statement by Mrs. Sauve in the Third Committee, UNCLOS III, Off.. Rees., vol. iv, 195.  41. J .R. Stevenson and Bernard H. Oxman, "The Third U.N. Conference on the Law of the Sea: 69 42.  The 19785 Geneva Session,"  A.J.I .L. 796 (1975).  See Ann L. Hoi lick, op. cit. supra note 29, at 286; reviewed in 20 Can. Yr. Bk. Int'l L. 398 (1982).  43.  For a comprehensive analysis on this, see Fleischer, supra, note 28.  44.  Ibid., 28  45.  Fisheries Jurisdiction Case (United Kingdom of Great Britain and  Northern Ireland v. Iceland, Merits Judgement, [1974]  I.C.J. Rep. 3. 46.  Ibid., para. 52.  47.  Ibid., para 53.  49. Ibid. 49.  See R.R. Churchill, "The Fisheries Jurisdiction Cases: The Contribution of the International Court of Justice to the Debate on Coastal States Fisheries Rights." 24 l.C.L. Q. 81 (1975).  50.  Fleischer, supra note 28, at 7.  51.  Continental Shelf (Tunisia/Libyan Arab Jamahariya), Judgment, [1982] I.C.J. Rep. 18.  - 37 -  52.  Ibid., para 100.  53.  William T. Burke, "National Legislation on Ocean Authority Zones and the Contemporary Law of the Sea," 9 O.D.I.L., 289 (1981).  54.  Ibid., 312.  55. The Asylum Case (Colombia v. Peru), [1950] I.C.J. Rep. 266. 56.  Ibid., 276.  57. See Rembe, op cit. supra note 29, at 126. 58.  See, supra note 6.  59. Although the U.S. Proclamation on the EEZ is based on the premise that the zone is recognized by "international law", at the same time the proclamation affirms that i t does not change existing U.S. policies on fisheries. significant  There are, however,  differences between the Convention's texts and  United States policy on fisheries.  For example, there is no  duty, as under the Convention, to give other states access to any surplus fish in the zone. allows for imprisonment  Furthermore, U.S. legislation  in fishery violations; this is not  permitted under the Convention (art. 73). U.S. policy on migratory texts.  species is also  inconsistent with UNCLOS Ill's  See Robert Hage, "Canada and the Law of the Sea," 8  Marine Policy 2 (1984) at 14;  George A.B. Peirce, "Selective  Adoption of the New Law of the Sea: The United States Proclaims its Exclusive Economic Zone," 23 Va. J. Int'l L. 581 (1983).  - 38 -  60.  See Schwarzenberger,  "The Fundamental  Principles of  International Law," 87 Recueil Des Cours 195, 360 (1955). See also E.D. Brown, "Freedom of the High Seas vs. Common Heritage of Mankind: Fundamental Principles in Conflict," 20 San Diego L. Rev. 521 (1983). 61. UNCLOS III, Off. Rees., Vol III 2nd C'tee, Doc. A/Conf. 62/c. 2/L. 69. 62.  See North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark: Federal Republic of Germany/Netherlands), [1969] I.C.J. Rep. 4, reproduced in 8 Int'l Leg. Mat. 340, para 19, (1969).  Art. 55 (on the EEZ) incorporates the  Convention's Continental Shelf's provision (Part VI) through the entire 200 mile zone. 63.  See arts. 55-75, and 8 of the Convention, supra, note 10.  64.  See for example, Rembe, op_. cit. supra note 29, at 86.  65.  Art. 25(3).  66.  Statement by Mr. Arguilar, chairman of the Second Committee whose responsibility was the EEZ, in his introductory note to Part 2 of the Revised Single Negotiating Text (RSNT), Doc. A/Conf. 62, WP. 8 Rev. 1.  67. J.H. Beale, "The Jurisdiction of a Sovereign State," 36 Harv. L. Rev. 241 (1923). 68.  There are in existence 28 IM0 International Conventions and protocols incorporating standards in nearly every aspect of shipping.  See 1 IM0 News 9 (1983).  - 39 -  69. On Enforcement in Marine Pollution, see Gr. T. Timagenis, International  Control  of Marine Pollution 57 (Dobbs Ferry,  N.Y., 1980). 70. Ibid., 58. 71. Ibid., 615. 72. Ibid., 58. 73. For purposes of enforcement, a "port-state" is a state in which a vessel which has violated a relevant rule in a sea area not under the jurisdiction of such state, enters port. The term "coastal-state" is used when the violation takes place in a sea area (for this purpose the EEZ) which falls under the jurisdiction of this state regardless of whether or not the vessel violating the rule enters port.  "Flag-state"  is the state of registry of the vessel.  Van Reenen,  See W.  "Rules of Reference in the New Convention on the Law of the Sea, in particular in connection with the Pollution of the Sea by Oil from Tankers," 12 Neth. Yr. Bk. Int'l L. 3 (1981).  - 40 -  CHAPTER II THE PRE-UNCLOS III REGIME ON ENFORCEMENT Flag-state Competence: Origin and Nature of the Rule One of the dominant principles of traditional international law is the "freedom of the seas": "In the era of small populations and  limited  technologies,  problems  of congestion  or  over exploitation rarely occured. The principal ocean activities of fishing and navigation could be pursued with little concern for the impact on other interests.  The legal regime that periodically  prevailed under these conditions came to be known as freedom of the seas."l  One of the foremost exponents of the rule was Hugo  Grotius, a Dutch lawyer of the seventeenth century.  In his Mare  Liberum,? he wrote: "The sea is common to all because i t is so limitless that it cannot become a possession of anyone, and because i t is adapted for the use of all, whether we consider i t from the point of view of navigation or fisheries.. .Therefore, the sea can in no way become the private property of anyone, because nature not only allows, but enjoins its common use."  3  The principle of the freedom of the seas was, however, not without an initial opposition. There were those who adhered to the doctrine of mare clausum or the closed seas which was the opposite 4  of the Grotian view.  Indeed, Anand describes the history of the 5  Law of the Sea as the story of the vicissitudes through which the doctrine for and against the freedom of the seas has gone through the ages.  It was freedom of the seas that eventually won the day.  This was confirmed by the Geneva Convention on the High Seas: "The 6  - 41 -  high seas being open to all nations, no state may validly purport to subject any part of them to its sovereignty.  Freedom of the  high seas ..comprises inter alia, both for coastal and non-coastal states: 1) Freedom of navigation, 2) Freedom of fishing,  (3)  Freedom to lay submarine cables and pipelines, 4) Freedom to fly over the high seas... "  7  The freedom of the high seas are, however, made subject to the consideration that they shall  be exercised by all states with  reasonable regard to the interests of other states. Freedom of the seas does not, therefore, mean the high seas are a lawless area of vacuum. The "reasonable regard" clause requires the maintenance of juridical order on the seas as states engage in various activities on the seas; and flag-state competence developed as a corollary of the freedom of the seas. competence  This functional basis for flag-state  is a more plausible view of  the  matter, and  is  preferable to the now discredited fiction of assimilating a ship on the  high  seas to the territory  of the flag which she  underlying the decision in the Lotus case^.  flies,  As Boczek has stated:  The high seas area subject to lawi and this idea lies at the basis of regulations for their utilization. The subjection of the high seas to juridical order is organised and effected by means of a permanent legal relation between ships flying a particular flag and the state whose flag they fly...In the peaceful utilization of the oceans, the institution of the nationality of ships is of primary importance. Owing to i t ships can be subject to the control and authority of the state which has ascribed its national character to them. This state takes responsibility for the lawful conduct of its ships and the use they make of maritime areas. This state is also their protector against any deprivations the ship may suffer on the part of other states.9  - 42 -  Flag-state competence is, thus, the rule on the high seas, and the  conclusive  test of  a  ship's  nationality 1s registration  accompanied by the issue of appropriate documents by the competent organ of the state. Flag-state Pollution Enforcement of International Conventions Article 24 of the Geneva Convention on the High Seas required states to legislate, subject to existing treaty provisions, to prevent pollution of the seas.  This is in reference to the  1954  Convention on the Prevention of Pollution of the Sea by Oil (OILPOL 54).10 with  indeed, marine pollution is an issue that has been dealt  solely on  treaty basis.  OILPOL 54 which has  now  been  superceded by the International Convention for the Prevention of Pollution from ships as amended by its Protocol of 1978 (MARPOL 73/78),11 was primarily aimed at pollution resulting from routine tanker operations which was, pollution from ships.  and s t i l l  is, the greater cause of  It established prohibited zones extending at  least 50 miles from the base lines in which the discharge of oil or of mixtures containing more than 100 parts of oil per million was forbidden.  Further  amendments were adopted in 1962  and  1969  extending the application to ships of a lower tonnage and further extended also the prohibited zones for oil tankers. The Convention put a complete ban on operational  discharges of oil from ships  except where the total discharge on a ballast voyage did not exceed 1/15,000 of the total cargo carrying capacity of the vessel and the rate of discharge did not exceed 60 litres per mile travelled by the ship.  OILPOL 54 also prohibited discharge of oil from cargo  - 43 -  spaces of tanks within 50 miles of the nearest land; and introduced a new form of oil record book designed to show the movement of cargo oil and its residue from loading to discharging, on a tankto-tank basis. Finally, for other ships, 0ILP0L 54 placed a limit x  on rate of discharge at not more than 60 litres per mile being travelled by the ship. With regard to the oil content of any bilge water discharged from ships, i t was not to be less than 100 parts per million. The 1971 amendments to 0ILP0L 54 provided greater protection to the Great Barrier Reef of Australia and also limited the size of tanks on oil tankers, thereby, minimizing the amount of oil that could escape in the event of an accident. In line with the prevailing doctrine of the freedom of the seas, OILP0L 54's enforcement - inspections, investigations, and prosecutions for violations on the high seas was left to the flagstate.  Coastal-states enforcement (discussed below) was limited to  violations occurring in the internal waters and territorial seas. For  its enforcement, 0ILP0L  54 had serious  limitations.  Detection of oil discharges was difficult and could be achieved only at the expense of visual  surveillance which in itself was  difficult in view of the vast amount of areas to be policed and the rapidity with which oil slicks break up into smaller particles. Furthermore, prosecution of offences beyond the territorial  seas,  as observed above, was in the exclusive competence of flag-states. Hence, if the state of the offending  vessel's  registry was  - 44 -  disinclined to prosecute, control.  This  invariably,  such vessels could effectively escape  was the case  the pollution  in many  instances;  did not affect  for almost  the flag-state's  territory, but that of some other coastal-state.  Besides, all  states encountered difficulties in getting the necessary to prosecute.  evidence  OILPOL 54's enforcement record was thus very poor.  Many flag-states refused to prescribe penalties against their offending vessels as provided under the Convention.  For example,  in a 10 year period ending 1977, of the 80 violations that were recorded  by Canadian authorities and reported to the offending  vessel's flag-states, almost half of the violations received no comment at a l l , and in only slightly  over 20 percent  reported violations did convictions result.12  of the  Similarly, of the  seven reported violations referred to flag-states from 1969 to 1972 by  the United  penalties.13  States authorities, only two violators received  A United Kingdom (U.K.) delegate at UNCLOS III also  disclosed, in the Third Committee, that the U.K. authorities had found i t difficult to obtain sufficient evidence prosecutions.  for successful  Over the previous five reporting years, i t had been  possible to link with particular vessels 203 of the 900 spillages occurring off U.K. coasts, but there had been only 18 successful prosecutions.14 Within the overall framework of flag-state competence, the enforcement record of 'flag of convenience states' in the preUNLC0S III era, in particular, was very dismal.15 to the registration  and operation  j  ne  term refers  under flags of states like  - 45 -  Liberia, Panama, and Honduras, of vessels that are beneficially owned and controlled by nations of other states, are manned usually by  foreign  registry.^  6  crews, and  hardly  ever put  in at their ports of  The registration is done under conditions convenient  and opportune to persons registering these vessels, in particular, lower operating costs; comparatively  lower wages are paid to the  seamen on these ships, and the laws regarding labour regulations, crew composition, and manning can be avoided.  Registration in the  convenience states also provides other advantages, such as low tax liability, secrecy, and greater mortgage security. The growth in the number of flag of convenience vessels, in particular in the period after World War II, has thus been largely owing to the specific competitive possessed over others.  advantage which these vessels  The ship owners of certain European states,  like Greece, also resorted to registration in convenience states for fear of nationalisation.  17  The features ** of the flags of convenience posed two problems: 1  firstly, special  the danger of unfair competition economic advantages, and  resulting from their  secondly, the  threat to the  maritime community as a whole in view of their inadequate standards and  ineffective enforcement.  focused  on  pollution.  In the present  study, concern is  the latter with its associated dangers of maritime As Meese has stated:  Essentially the flag-of-convenience countries lack the desire, power and administrative machinery to impose regulations [including pollution enforcement] that temper the narrowest economic concerns with social objectives. If they did try to impose stricter regulations, they would cease to  - 46 -  be "convenient". The revenues from registration would shift elsewhere. Because they are only tangentially affected by the actual operation of vessels registered under their flags, there is no interest in exercising responsible and effective control over vessel construction and operation or the certification of personnel qualification, training, and performance.. .19 Consequently, most vessel accidents with resultant pollution of the seas have in the past involved flags-of-convenience.  The  Torrey Canyon in 1967, the Pacific Glory and Allegro in 1970, and the 1978 Amoco Cadiz disaster are good examples. There were attempts at the 1958 United Nations Confernce on the Law of the Sea (UNCLOS I) to deal with the problems posed by flags of convenience by the provision of a "genuine link" requirement between ships and states whose flags they fly. The  "genuine link"  Nottebohm case.19  concept was  in that  case,  an extrapolation from the the  court  emphasized  that  nationality is a legal bond having as its base a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It constitutes the jurisdictional expression of the fact that the individual upon whom i t is conferred is in fact more closely connected with the population of the state conferring nationality than with that of any other state.20 The "genuine link" provision found expression in article 5 of the Convention on the High Seas: Each state shall fix the conditions for the grant of nationality to ships, for the registration of ships in its territory and for the right to fly its flag. Ships have the nationality of the state whose flag they are entitled to fly. There must exist a genuine link between the state and the ship, in particular the state must effectively exercise its jurisdiction and control in  - 47 administrative, technical, and social matters over ships flying its flag (emphasis added) A more potent clause of non-recognition of the nationality of ships lacking a genuine link with the state of registration was, however, not inserted.  The pre-UNCLOS III attempts to control  flags of convenience were not motivated by environmental protection considerations;  they  were  meant  to  curtail  the competitive  advantage possessed by the flags of convenience.  This, of course,  would have led to a reduction of the marine pollution problem since most vessel vessels.  accidents in the past have involved "convenience"  The attempts, however, were not successful.  As Boczek  concludes from a study of the subject: The genuine link concept in its application to ships has been devised by its framers as an international law medium to curb the practice of the flags-of-convenience which for those who stimulated this concept, are dangerous competition, or are inconvenient because of other economic reasons....No elements of the genuine link could be defined, but effective jurisdiction and control in adminsitrative, technical and social matters by the flag-state over its ships could be the result of this genuine link. The issue of flags-of-convenience are not solved by [UNCLOS I] and could not be solved because the root of the problem, lies not in the legal sphere, but in the complex economic structure of the shipping industry.21 During the last decade there was a resurgence of the flags of convenience controversy. The concerns, this time, have been both economic and environmental. UNCTAD, since its inception, has been concerned with the establishment and expansion of national and multinational states.  merchant marines, especially  those of developing  It has advocated the existence of a genuine link between  these merchant marines and their flags of registry, thus enabling  - 48 -  the  developing states to derive the full  economic and social  benefits from the expansion of their merchant fleets.  The ILO has  also been concerned with the relatively lower social and working conditions on these flags of convenience vessels. The greatest concern with flags of convenience  vessels have been from the  pollution point of view. As observed, most of the major tanker accidents have involved convenience vessels. the  I MO,  The issue attracted the attention first of  and subsequently UNCLOS III, and has prompted the latter  to devise regulatory measures governing not only convenience, but all  vessels.  The Convention  governing nationality requirement.  With  retains  the traditional  rules  of ships as well  as the "genuine  link"  regard to the latter,  i t spells  out  the  contents, and in addition, imposes elaborate obligations on states. By  so doing, i t strengthens flag-state enforcement  over their  vessels and, therefore, is a big improvement on the 1958 Geneva provisions (see Chapter III infra). Coastal-state Enforcement International law grants coastal-states sovereignty over their internal  waters  territorial sea.  and, subject 22  to innocent passage, over their  Under the 1958 Convention on territorial sea,  passage is defined as navigation through the territorial sea. As a rule, i t does not include stopping or anchoring. These activities are  only permitted if incidental to ordinary navigation or made  necessary  by force  majeure.  As observed,  so long as such  -  49 -  passage was not prejudicial to the peace, good order or security of the coastal-state, i t was to be considered "innocent". In terms of pollution, i t is acknowledged that a vessel's passage is not innocent i f i t does not conform to anti-pollution standards and poses a pollution threat to the coastal-state.  As  stated by the Institute of International Law: States have the right to prohibit any ship that does not conform to the standards set up...for the design and equipment and for the qualifications of the officers and members of the crews, from crossing their territorial seas and contiguous zones and from reaching their ports. 23 Thus, a prejudice to the marine and territorial environment of the coastal-state is tantamount to a prejudice to the peace, good order or security of that state.  In other words, a vessel that so  menaces the coastal-state constitutes a threat to its living in peace and security.24  A coastal-state could, however, be liable  for  for interference with passage  tortious conduct  considered  innocent.25 OILPOL 5 4 acknowledged the right of coastal-states pollution enforcement in the internal waters and territorial however, was a limited right.  seas.  This,  Inspections and prosecutions were  limited to violations in the territorial  seas.  States' parties  were allowed only to inspect a vesel's oil record book and were not to delay such vessels in the process.  The value of this right was  negligible as a record book was easily falsified by a recalcitrant crew. Flag-states were also required to furnish the then IMCO with details  of  such  discharges,  a  requirement  that  was  -  50 -  not c o m p l i e d w i t h by s t a t e s . territorial  In the case of v i o l a t i o n s o u t s i d e the  s e a s , t h e s e had t o be r e p o r t e d t o - f l a g s t a t e s who, as  o b s e r v e d , seldom r e a c t e d t o such r e p o r t s . 2 6 The  Convention  on  allowed  for  states'  fiscal,  immigration,  'sanitary' is  to  creation  include  disputed.29  \  n  territorial  or  of  sea  and  contiguous  sanitary  pollution  contiguous zones  purposes.  One  prevention.  any c a s e , the c o n t i g u o u s  beyond 12 m i l e s from the base l i n e s  for  2 7  customs,  could  This,  2 8  zone  read  however,  zone was not t o  extend  from which the t e r r i t o r i a l  sea  i s measured. From OILPCL  coastal  enforcement  54 was u n s a t i s f a c t o r y .  coastal-states' was  states  territorial  what OILPOL  High  and o t h e r  states'  powers  intervention their  to of  casualty;  customary  rule  is  seas  seas.  following  now  was  flag-  limited  Coastal-  to  This  International  view of  this  to prevent or e l i m i n a t e grave and imminent danger from p o l l u t i o n  high  as the U n i t e d Kingdom's bombing of  1967.30  in  and  to  seas  the  affected  limited  territorial  on  therefore,  The Convention  enforcement i n the t e r r i t o r i a l enforcement  view,  interests,  r e m e d y i n g , but  s t a t e competence, the aim was not a c h i e v e d . coastal-states  of  seas p o l l u t i o n o f t e n  waters  54 was aimed a t  point  upon  a maritime  the T o r r e y Canyon codified  under  in the  Convention R e l a t i n g t o I n t e r v e n t i o n on the High Seas  i n Cases of O i l P o l l u t i o n C a s u a l t i e s ( I n t e r v e n t i o n 6 9 ) . 3 1 I n t e r v e n t i o n 69 i n t r o d u c e s it  requires  experts  c e r t a i n improvements i n t o the  the S e c r e t a r y - G e n e r a l  who may be c a l l e d upon  of to  the IMO t o p r o v i d e  advise  law;  a list  of  the t h r e a t e n e d s t a t e on  - 51 -  the technical procedures  aspects of the remedy.  Secondly,  i t provides  for conciliation and arbitration of disputes in the  absence of which there must be resort to municipal courts with consequent  delays and bias.  OILPQL 54 has now been superceded by MARPOL 73/78 designed to eliminate the weaknesses of the former.  MARPOL 73/78 aims to  achieve the elimination of international pollution of the marine environment  by o i l and other  minimization of accidental entered  into  force  harmful  substances  and the  discharges of such substances.  in October  1983.  It  So far, 25 states, the  combined fleet of which constitutes approximately 67.5 percent of the gross registered tonnage of the world's merchant fleet, are parties to the Convention. In terms of standards, operational and construction, design, equipment and manning (CDEM), MARPOL 73/78 is widely acknowledged to be a big improvement on OILPOL 54 and capable of dealing with marine pollution.32 7  ne  problem with the Convention, however, has  been the question of its enforcement. Flag-states Pollution evidence  are required to provide International Oil  Prevention Certificates of conformity with  equipment standards. these documents. valid. condition  (IOPPCs) for their  the Convention's  ships as  construction and  Port-states have powers of inspection of  But i t is limited to ensuring that they are  Where there are valid grounds for believing that the of the ship or its equipment  does not correspond  substantially with the particulars of the certificate; or if the  - 52 -  vessel does not carry a valid certificate, the party inspecting shall take such steps as will ensure that the vessel does not sail until  i t can proceed to sea without presenting an unreasonable  threat of harm to the marine environment. Parties could also deny substandard vessels entry into their ports.  These actions are subject to the requirement to notify the  flag-state  of the actions  taken against  such  vessels.  requirements of the Convention are also to be enforced  The against  vessels of non-parties to ensure that no more favourable treatment is given such vessels. State parties, either on their own, or at the rquest of a party to the Convention, can also inspect vessels in its ports to ascertain  any discharge  occurred.  This, however, does not include powers of prosecution.  It is simply which  violations irrespective of where i t  one of inspection in order to provide evidence on  the coastal  or flag-state may be able  to institute  proceedings.  33  Even though MARPOL 73/78 strengthens the enforcement systemcompared  to OILPOL  contribution fell Exclusive  54, especially  rights,  its  far short of the revolution some called for.  flag-state  enforcement  unchallenged, and no shift coastal state occurred. article  inspection  on the high  seas  in authority from the flag  remained to the  This view is confirmed by MARPOL 73/78's  4 which provides  for flag-state jurisdiction  over  violations wherever they occur; and coastal-state jurisdiction over violations within their "jurisdiction".  -53 -  MARPOL 73/78 does not define "jurisdiction" but leaves the term to be construed "in the light of international law in force at the time of the application or interpretation of the Convention."34 Indeed, the whole question of jurisdiction,  both extent and  content, was not resolved by the Convention.  Coastal-states,  dissatisfied with flag-state enforcement, wanted stronger and more extensive powers of enforcement, whilst maritime states opposed these for fear that such powers would impede freedom of navigation. This was the "special measures controversy", since i t was concerned with the extent to which a coastal state should be allowed to set special  standards for its coastal zone, in terms of both the  content and the proper geographical extent of this jurisdiction. Several  proposals,  including  a compromise port-state  enforcement, put forward by Canada, Australia, and New Zealand allowing prosecutions, were not adopted.  The feeling was that the  IMO, in spite of its global nature, was not a suitable forum for the discussion of these matters.  UNCLOS III was scheduled to  commence proceedings that same year and i t was felt that i t was the  #  appropriate forum to deal with this jurisdictional problem. Consequently, article 9(2) of MARPOL 73/78 emphatically stated that  nothing  in i t was to prejudice the codification and  development of the Law of the Sea by UNCLOS III, "nor the present or future claims and legal views of any state concerning the Law of the Sea and the nature and extent of coastal jurisdiction.  and flag-state  And "jurisdiction" was to be construed as noted.  Further, in a resolution on the nature and extent of states'- rights  - 54 -  over the sea, the IMO conference declared inter alia that the decision of the present conference reflects a clear intention to leave the question of the nature and extent of states' rights over the sea to UNCLOS I I I .  35  There are other IMO Conventions that were concluded in the pre-UNCLOS III era. These are worth considering in this study even though they do not deal directly with the problem of oil pollution, but as they are concerned with vessel safety at sea, they have pollution reduction potential.  There is the Convention on Load  Lines (LL 1966) as amended;36 the International Convention for the Safety of Life at Sea (SOLAS 74) as amended and its Protocol of 1978;37  the  Convention  Preventing  Collisions  Convention  on Standards  on  the  International  (COLREG 1972)38  a s  Regulations for  amended; and  the  of Training, Certification, and Watch-  Keeping for Sea Farers (STCW 1978).39 There is also the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter (LDC 72).  In a strict sense, dumping is a land-  40  based source of pollution, but i t is being mentioned here inasmuch^ as vessels may be used as tools for dumping.41 These conventions in line with traditional international law, are generally modelled seas.  on  flag-state  enforcement  on the high  42  Thus, even though vessel-source pollution had been dealt with under  international  conventions,  these  conventions  following  traditional international law, had left their jurisdictional question to flag-state enforcement  outside the territorial seas.  - 55 -  This, as observed, had been ineffective since flag-states did not usually enforce reported violations of these rules.  In this, flags  of convenience states were the worst offenders as they even lacked the necessary administrative and other institutional structures to ensure compliance of these rules by their vessels. Besides, there were under OILPOL 54, technical problems such as detection of discharges.  MARPOL 73/78 is a big improvement on OILPOL 54 as i t  does introduce the requirement for facilities like oil monitoring devices, segregated ballast tanks and crude oil washing; facilities that help monitor, and lessen the incidence of oil pollution from vessels.  MARPCL 73/78's enforcement provisions, especially in the  area of inspections, even though an improvement on OILPOL 54, did not go far enough.  There was no power of prosecution, and that  meant such inspection reports ultimately had to be reported to flag-states;  and these could be ignored.  Besides, the question of  the geographical extent of coastal-states' jurisdiction could not be resolved. Indeed, the I MO was not the appropriate forum to deal with such issues. Thus even though the pre-UNCLOS III era had developed, in its latter stages, a technically sound international convention to deal with  o i l pollution,  enforcement.  i t lacked  What was required  an effective  machinery of  therefore was the necessary  jurisdictional framework to make these technical rules work. This was  what UNCLOS III was to provide.  - 56 -  FOOTNOTES Chapter II 1.  Ann L. Hoi lick, U.S. Foreign Policy and the Law of the Sea 4 (Princeton, N.J., 1981).  2.  James Brown Scott  (ed.),  The  Freedom of the Seas (Mare  Liberum): A Dissertation by Hugo Grotius (Washington, D.C, 1962). 3.  Ibid., 28-30.  4.  See for example John Selden, Of the Dominion or Ownership of the  Sea  (Leonard Silk  ed.)  (New  York, 1972).  Selden's  treatise, written at the request of the British Crown, was in opposition to the Grotian view above. 5.  See R.P. Anand, Origin and Development of the Law of the Sea 225-42 (The Hague, 1982).  6.  Geneva Convention on the High Seas 1958, New Directions in the Law of the Sea (Documents) Vol. 1, 257, (hereinafter referred to as "New Directions").  7.  Ibid., art. 2.  8.  The S.S. Lotus, [1927] P.C.I .J. Ser. No. 10.  For a critique  of the decision, see Colombos, The International Law of the Sea (6th ed.), 303 (New York, 1967); Chung Chi Cheng v. King, [1939] A.C 160. 9.  B.A. Boczek, Flags of Convenience 92 (Harvard, 1962).  10.  New Directions, vol. i i , 557.  OILPOL 54 was concluded under  British  and  government  initiative  its Bureau powers were  - 5 7 -  assigned Convention  to  the  then  IMCO (now  entered into  force  IMO)  when  the  latter's  in 1 9 5 9 . On the IMO,  see  M'Gonigle and Zacher, Pollution, P o l i t i c s , and International Law 1 2  3 9  (Berkeley,  1 9 7 9 ) .  I n t ' l Leg. Mat.  1 3 1 9 ( 1 9 7 3 ) , 1 7  I n t ' l Leg. Mat.  5 7 9 ( 1 9 7 8 ) .  Conventions dealing with vessel-source pollution have mainly been concluded under the auspices of  the IMO, which also  undertakes secretariat responsibilities in respect of some of these conventions.  A comprehensive l i s t of these conventions,  including signatories as at Dec. 3 1 , 1 9 8 3 is published in "Status of Multilateral Conventions and Instruments in Respect of  which  the  International  Maritime  Organisation  or  its  Secretary-General Performs Depository or other Functions" IMO Doc. Misc.  84(2).  On these conventions and their enforcement,  s e e M'Gonigle and Zacher, op c i t . supra note 1 0 , esp. chap v i , v i i i , David W. Abecassis, The Law and Practice Relating to Oil Pollution by Ships  8 0  (London,  1 9 7 8 ) ;  E. D .  Brown,  Prevention of Marine Pollution by Oil from Ships:  "The  Competence  to establish standards and competence to enforce standards," 2 8  Current Legal  Problems  1 9 9 ( 1 9 7 5 ) ;  L.J.H.  Legault,  "Freedom of the Seas: A Licence to Pollute?", 2 1 U. of T . L . J . 211 (1971);  Robin Churchill, "The Role of IMCO in Combating  Marine P o l l u t i o n , " and Patricia B i r n i e , "Enforcement of the International  Laws  for  Vessels," in Douglas (et Pollution  (London,  Prevention al.  1980);  of  Oil  Pollution  from  eds.), The Impact of Marine A.V.  Lowe,  "The Enforcement of  - 58 -  Marine  Pollution Regulations," 12 San Diego L. Rev. 625  (1975); E.D. Brown, "The Lessons of the Torrey Canyon," 21 Current Legal Problems 113 (1968); 4 IMO News, 10 (1982). 12.  See Ted L. McDorman (et al.), The Marine Environment and the Caracas Convention on the Law of the Sea 16 (Halifax, 1981).  13.  See Richard A. Legatski, "Port State Jurisdiction over Vesselsource Marine Pollution," Harv. Env't'l L. Rev. 449 (1977), at 455.  14.  Statement by Sir Roger Jackling (U.K.) UNCLOS III, Off. Rees., vol. IV, at 8.  15.  On flags of convenience, see Boczek, op. cit. supra note 9.  16.  Ibid., 287.  17. Ibid., 287-8. 18. These  have  been  listed  in "OECD  study  on flags of  convenience," 4 J. Mar. L. & Comm. 231 (1973), at 232 as: 1) The country of registry allows ownership and/or control of its merchant vessels by non-citizens; 2) Access to the registry is easy. A ship may usually be registered at a consul's office abroad. Equally important, transfer from the registry at the owner's option is not restricted; 3) Taxes on the income from the ships are not levied locally or are low. A registry fee and an annual fee, based on tonnage, are normally the only charges made. A guarantee or acceptable understanding regarding future freedom from taxation may also be given; 4) The country of registry is a small power with no national requirement under any foreseeable circumstances for all shipping registered (but receipts from very small charges on a large tonnage may produce a substantial effect on its national income and balance of payments);  - 59 -  5) Manning of ships by non-nationals is freely permitted;  and  6) The country of registry has neither the power not the administrative machinery effectively to impose any government or international regulations; nor has the country the wish or the power to control the companies themselves." On flags of convenience and the pollution problem, see Sally  A. Meese,  "When Jurisdictional  Interests  Collide:  International, Domestic, and State Efforts to Prevent Vesselsource Oil Pollution,"  O.D.I .L.  71 (1982); Ebere Osieke,  "Flags  Vessels:  Recent  of Convenience  Developments," 73  A.J.I .L. 604 (1979); L.L. Herman, "Flags of Convenience-New Dimensions to an Old Problem," 24 McGill L.J. 1 (1978); A.H.E. Popp, "Recent Developments in Tanker Control in International Law," 19.  18 Can. Yr. Bk. Int'l 3 (1980); OECD Study.  Nottebohm case (Liechtenstein Rep.,  20.  v. Guatemala), [1955] I.C.J.  4.  Ibid., 23. Nottebohm, i t may be recalled, Liechtenstein  instituted  was a case  in which  proceedings on behalf of  its  national, Friedrich Nottebohm and his property. Guatemala had disputed this on grounds, inter alia, that the nationality acquired was not in accordance with Liechtenstein  law and  contrary to the generally recognised principles in regard to nationality.  Besides, Nottebohm had lived and worked in  Guatemala for over 30 years.  It was thus a contested case of  nationality between two states; i t involved not a recognition of nationality for all purposes but merely for the purposes of the  admissibility  recognition  of the Application,  by all states  and, secondly, not  but only Guatemala.  For,  under  - 60 -  international law, i t is the right of every state to settle by its own legislation, the rules relating to the acquisiton of its nationality. A regard  decision  like Nottebohm, then, is inapposite with  to nationality of ships.  Besides, i t is also a  disguised mode of stating that because certain limits have been imposed on states with respect to individuals for some problems, other limits ought to be imposed with respect to ships for other problems. See McDougal 4 Burke, Public Order of the Oceans 1026 (New Haven, 1962). 21.  Boczek, op cit. supra note 9, at 292.  22.  On this discussion, see Donat Pharand, The Law of the Sea of the Arctic with Special Reference to Canada 1 (Ottawa, 1973).  23.  See art. vi of "Measures concerning accidental pollutions of the  seas," Institute of International  Law,  Geneva (1969),  quoted from Pharand, ibid., 12. The Convention on the Law of the Sea, as observed, (see Chapter I), radically alters the meaning of innocent passage: pollution must be serious and wilful to render passage noninnocent. However, limiting innocent passage only to cases of wilful  and  serious  pollution  is unsatisfactory  as  this  detracts from the pre-existing customary international rules on the matter.  Besides, irrespective of the polluter's state  of mind, pollution alone may constitute a sufficient threat to the coastal states' vital interests to demand the retention of  - 61 -  states unfettered legal authority to protect those interests. The "wilful and serious" provision, i t has been said, may not endure  time and practice and will  only contribute to an  eventual erosion of respect for the international law of the sea.  See Brian Smith, "Innocent Passage  as a Rule of  Decision: Navigation v. Environmental Protection," 21 Col. J. Transnat'nal L. 49 (1982). 24. Pharand, ibid. 25. M'Gonigle and Zacher, op cit. supra note 10, at 147. 26.  Ibid., 219.  27. Convention on the Territorial  Sea and Contiguous Zone 1958,  New Directions, vol. 1, art. 24. 28.  M'Gonigle and Zacher, op cit. supra note 10, at 202.  29.  See E.D. Brown, "The Lessons of the Torrey Canyon," supra note II.  30.  See E.D. Brown, ibid.  31. 9 Int'l Leg. Mat. 25 (1970). Its operative art 1 provides: Parties to the present Convention may take such measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat of pollution of the sea by o i l , following upon a maritime casualty which may reasonably be expected to result in major harmful consequences.  - 62 -  A power of intervention under the Convention would thus only arise when there is grave.and imminent danger from a maritime casualty. The interest threatened is widely defined. These include fishing activities, tourism, and the well-being of living marine resources and of wildlife; although these must be affected  directly  or threatened by the maritime  casualties. The IMO in 1973 adopted the Intervention Protocol of 1973 which extended the Convention to include substances other than o i l , 13 Int'l Leg. Mat. 605 (1974). The technical measures designed to achieve the Convention's objectives are contained in five annexes dealing with oil, noxious substances carried in bulk, harmful substances carried in packages, sewage, and garbage.  The annexes on oil  and  noxious liquid substances are compulsory, the rest optional. The  oil pollution regulations apply to all tanks and  ships of 150 and 400 gross tons and above respectively. MARPOL 73/78 maintains the oil discharge criteria contained in OILPOL 54 but limits, to half, the total amount of permissible oil discharged at sea (1/30,000 of the cargo). Oil is defined broadly to include petroleum in any form including crude, fuel sludge, oil refuse, and refined  products.  MARPOL 73/78  imposes an absolute prohibition on oil discharge in special areas (see below). The Convention also requires state parties to provide adequate  facilities  for the reception of oily  - 63 -  mixtures in places like loading terminals and ports.  In  addition, i t provides that oil tankers must be equipped with facilities like slop tanks, oily water separating equipment, or filtering systems for the discharge of machinery space bilges and oil monitoring devices. The latter help detect the amount of oil discharged by vessels upon inspection. MARPOL 73/78 also retains the limitations on tank size imposed by the 1971 amendment to OILPOL 54.  Furthermore, i t requires new oil  tankers of 20,000 tons dead weight and above to be provided with segregated ballast tanks (SBTS) of sufficient capacity to enable them to operate on ballast voyages without using cargo tanks for ballast purposes; and since SBTS are not used for carrying  o i l , there are no  oily  mixtures  and  hence no  pollution (see Chapter I). Provision is also made for crude oil washing (COW)  as an alternative requirement in SBTS on  existing tankers, and is an additional requirement for new tankers.  Under COW, tanks are washed with crude oil and not  with water.  The crude oil's solvent action makes the cleaning  process far more efective than when water is used. Besides, there is no mixture of the oil and water that caused so much operational pollution in the past. The system, however, poses operational  dangers  because  of the attendant build-up of  explosive gases in cargo tanks.  It is for this reason that  the SOLAS 74 protocol (see note 39 infra) prescribes the use of inert gas systems on such vessels. note II.  See IMO News, supra  - 64 -  To ensure that tankers in the event of accidents survive bottom damage, MARPOL 73/78 has introduced new subdivision and stability requirements based on ship lengths. The Convention also contains stricter regulations for the inspection and certification  of vessels: there is the requirement for an  initial survey before a ship is put into service or before an international oil pollution prevention certificate (IOPPC) is issued, as well as periodical surveys of vessels at intervals not exceeding five years. The application of MARPOL 73/78 s technical requirements 1  to "new tankers" has meant that most vessels ordered since December, 1975 have incorporated the requirements of MARPOL 73/78.  See IMO News 7 (1983).  "Special areas" under MARPOL  73/78 are those sea areas where the recognized technical reasons in relation  to the oceanographical and ecological  conditions and to the particular character of its traffic, the prevention of sea pollution  is required.  These are the  Mediterranean, the Baltic, and the Gulf Seas areas. See Annex I reg. 1(10) MARPOL 73/78. 33.  See E.D. Brown: "The Prevention of Marine Pollution by Oil from Ships" supra note 11, at 210.  34.  Art. 9(3).  35. Ibid. 36. Res. 23, IMCO Doc. MP/Conf. WP 46, 40 quoted from E.D. Brown, supra note 11, at 207.  - 65 -  37.  640 UNITS  133.  LL 1966, together with its amendments, is  designed to deal with the problem of overloading on vessels which  could  result  pollution of the sea.  in vessel  accidents  and  consequent  The enforcement of this Convention is  generally the responsibility of flag states.  LL 66 entered  into force on July 21, 1968. As at December, 1983, i t had 100 contracting state parties, the combined merchant fleet of which constitutes approximately 98 percent of the world's fleet. 38.  See IMO Doc. Misc. 84(2), 69, at 75.  14Int'l Leg. Mat. 959 (1975).  The Convention was amended in  1981 and again in 1983. These amendments enter into force on September 1, 1984 and July 1, 1986, respectively. As at December 31 , 1983, SOLAS 74 had 78 contracting state  parties,  the combined  merchant  fleet  of which  constitutes approximately 94 percent of the gross tonnage of the world's merchant fleet. See IMO Doc. MISC 84(2), 7 esp. 14.  The 1978 SOLAS protocol is reproduced in 17 Int'l Leg.  Mat. 579 (1978). 39.  12 Int'l Leg. Mat. 734 (1973). COL REG 72 entered into force on 15 July, 1977.  It has 86 contracting state parties, the  combined merchant fleets of which constitutes approximately 97 percent of the gross tonnage of the world's merchant fleet. The 1981 amendments to COLREG 72 entered into force on June 1, 1983. SOLAS 74 as amended and COLREG 72 deal with almost every  - 66 -  aspect  of vessel safety such as lighting and behaviour in  restricted  and unrestricted  stability,  machinery  safety,  life  saving  dangerous goods.  visibility,  and electrical requirements,  subdivision and  installations,  fire  and the carriage of  The SOLAS 78 protocol  strengthens the  requirements regarding the use of inert gas systems which is now mandatory on tankers of 20,000 dead weight and above. The measure  is designed  eliminating  to prevent  tanker  explosions by  dangerous gases from cargo areas.  The most  important of these regulations from the point of view of oil pollution is routeing.  Rule 10 of COLREG 72 makes traffic  separation schemes mandatory, but violations of these, as well as the navigational rules have to be reported to flag-states for action. IMCO Doc. STW/Conf./13 July 5, 1978.  STCW 78 deals with  training and personnel standards. The Convention was actually developed by the ILO but was adopted in the IMO because of the greater  acceptability of the latter institution.  It was  developed in recognition of the importance of vessel crew competence for navigational safety. STCW 78 which came into force on 28 April, 1984 has 30 contracting states, the combined merchant fleets of which constitutes approximately 64 percent of the gross registered tonnage of the world's merchant fleet. STCW 78 stipulates the type of special training officers and crews of vessels must  - 67 -  have. The Convention is enforceable by contracting parties on their flag ships and in their ports.  Seafarers certificates  must be accepted unless there are clear ground for believing that they have been fraudulently obtained. official  coming across  An inspecting  violations must inform either the  master or the flag-state's consul for appropriate action. It is only when the violation is not remedied and is likely to result in a danger to persons, property, or the environment, that the ship can be detained until  the situation can be  remedied. Again flag-state competence is the rule. 41.  11 Int'l Leg. Mat. 1291 (1972).  42.  Art. I l l , ibid, defines "dumping", inter alia, as: 1) any deliberate disposal at sea of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea, 2) any deliberate disposal at sea of vessels, aircraft, platforms or other man-made structures at sea. The Convention  emphasis  is on "deliberate".  does not regard  Consequently, the  as amounting to dumping, the  disposal at sea of wastes or other matter incidental to, or derived from, the normal operations of vessels at sea and their equipment. These are matters governed by MARPOL 73/78. Annex I of LDC 72 prohibits outright the dumping of such compounds as organohalogens, mercury, cadmium, plastics as well as crude fuel, heavy diesel, and lubricating oils.  A  - 68 -  special permit is required for the dumping of other materials listed in Annex II. The Convention requires state parties to issue permits in respect of matter intended to be dumped that is either loaded in its territory or loaded by a vessel flying its flag when the loading occurs in the territory of a state which is not a party to the Convention.  The Convention expressly recognises  the need by states to develop procedures for its effective application,  particularly  on  the  high  seas, thereby  acknowledging the shortcomings of flag-state jurisdiction as a basis  of  enforcement.  Although  adopted  following  the  Stockholm Conference, the IMO Secretariat acts as a depository for the Convention. Regulation 10 of Chapter I of SOLAS 74, however, empowers contracting states to verify whether the certificate of safety prescribed by the Convention is on board.  If i t is, i t must  be accepted unless there are clear grounds for believing that the condition  of the ship or of its equipment does not  correspond substantially with the particulars of the vessel. Should this be the case, the inspecting officer shall take such steps as will ensure that the ship shall not sail until i t can proceed to sea without danger to the crew. However, like  MARPOL  prosecution.  73/78, this  does  not  include  powers of  - 69 -  CHAPTER III  THE UNCLOS III REGIME OF ENFORCEMENT  Background to the Convention's Texts  Even though the sea-bed committee was to prepare draft treaty articles, among other things, on the preservation of the marine environment for UNCLOS III deliberations,! issues relating to marine pollution were largely ignored during the preparatory work of the committee. A working group on marine pollution was established late in the summer of the 1972 session.  It discussed proposals, but did  not reach any agreement on draft articles. It may be recalled that the 1973 IMO conference could not resolve  the issue as to whether or not coastal  establish  and enforce  anti-pol1ution  standards  states  could  beyond the  territorial seas. _The maritime states stuck to the prevailing rule of  flag-state competence  outside  the territorial  seas, whilst  coastal states, dissatisfied with this regime, wanted enforcement powers outside the territorial  seas. "The controversy was carried  over from the IMO conference through the sea-bed committee right into the substantive sessions of the Third Committee of UNCLOS III. The proposals that were submitted to the sea-bed committee reflected the stand of states on the issue. On enforcement, a proposal by the United States2 granted powers to flag-states over its vessels and port-state enforcement over vessels occurred.  entering  its ports  regardless  In addition, i t provided  of where the violation for enforcement powers in  - 70 emergency situations threatening major harmful damage to the coast. Port-state enforcement had been proposed at the 1973 IMO conference as a compromise between coastal and flag state enforcement but had been rejected. It was, however, to be adopted at UNCLOS III and the United  States  proposal  was one of the early initiatives on the  matter at UNCLOS III. The French3 and Japanese proposals allowed 4  for coastal state enforcement beyond the territorial limited  circumstances.  prosecution regarding  rights dumping  investigation prosecutions  seas but in  The Japanese proposed investigative and  for violations and discharges,  of international and the French,  for violations of international  standards a general  conventions with  limited to violations of the London Convention on the  Prevention of Marine Pollution by Dumping of Wastes and Other Matter (LDC 72). In  its draft  enforcement  "within  articles,  Canada5  the limits  proposed  coastal  of their national  including environmental protection  states  jurisdiction,  zones (maximum be  determined) adjacent to their territorial  sea."  6  This  was a  reflection of Canada's dissatisfaction with the then existing flag state  regime of enforcement  proposal, navigation.  however,  raised  beyond  the territorial  the question  sea. The  of the protection of  It was argued in opposition that shipping to and from a  majority of coastal states while en route, would have to pass within 200 miles of at least one other state. would be subject  to interference  Accordingly such shipping  i f coastal  states were given  jurisdiction to establish pollution standards for vessels transiting the area.  - 71 This conflicting interest between, coastal and maritime states was not considered in any depth or detail by subcommittee III. It was during the initial substantive sessions of UNCLOS III that the controversy raged most.  It was not easy to reach agreement on the  contents, both prescriptive and enforcement, of these anti-pollution standards  in relation to vessel source pollution.  The maritime  states were not willing to accord greater enforcement powers to coastal states for fear that these might impede navigational rights. This was emphasized by a Denmark delegate who said that: his country as a sea faring nation highly dependent on foreign trade, was keenly interested in securing adequate international enforcement measures. It adhered primarily to the principle that the flag state alone should have authority to enforce jurisdiction over its vessels especially with regards to their design, construction, equipment and manning  (emphasis  added)/ On the other hand, coastal states, dissatisfied with the preexisting flag state competence, wanted greater enforcement powers. Canada, for instance, had  enacted  the Arctic Waters Pollution  Prevention Act (A.W.P.P.A.)S to protect its fragile and sensitive Arctic environment and wanted international endorsement for this action.  Incidentally, Canada's enactment of A.W.P.P.A. was also  evidence of the correctness of the maritime states fears about the use of environmental legislation to extend sovereignty over the oceans to the detriment of freedom of navigation. Together with  nine  other  states, Canada  introduced  draft  articles on the "zonal approach to the preservation of the marine environment."  9  The proposal required states to take all measures,  in a zone contiguous to the territorial seas, to prevent pollution of the marine environment from any source using for this purpose  - 72 the best practicable means, in accordance with their capabilities and their own environmental policies.  With regard to vessel source  pollution in the EEZ, the proposal would allow a coastal state to take measures "relating to the prevention of accidents, the safety of operations at sea, and intentional or other discharges, including measures  relating  to the design,  equipment, operation and  maintenance of vessels, especially of those vessels engaged in the carriage of hazardous substances  whose release into the marine  environment, either accidentally or through normal operation of the vessel, would cause pollution of the marine environment."^ Article VII 3(b)H of the proposal was drafted with Canada's A.W.P.P.A. in mind.  This was a resurgence  of the special measure controversy  carried over from the IMO 1973 MARPOL Conference (Chapter II). Under the zonal approach, the rights and duties of coastal states in the EEZ were to be performed without undue interference with other legitimate uses of the sea including the laying of submarine cables and pipelines. to enjoy  Furthermore, ships and aircraft of all states were  freedom of navigation and overflight,  subject to the  exercise by the coastal state of its right within the zone.  12  The 'zonal approach' proposal received the support of coastal states like Australia  13  and Tanzania. .. 14  The need for the preservation of fisheries in the EEZ was a prime factor for the assertion of environmental jurisdiction in the zone. As pointed out by the German Democratic Republic delegate: It was natural that countries-especially those of Africa, Asia and Latin Americawhose supply of animal proteins depended on fishing were concerned about preserving or re-establishing an ecological balance of the seas which would help them to solve their economic problems more rapidly.  - 73 Combating pollution of the high seas and conducting marine research for peaceful purposes required the effective cooperation of all States.15 The EEZ principle had been widely accepted in Committee II. Indeed over 100 states at Caracas spoke 1n support of an economic zone extending up to a limit of 200 nautical miles as part of an overall treaty settlement.  With regard to its content, there was wide  support for, among other things, coastal states rights and duties with respect to pollution, the details of which were left to be specified in committee III.16 create  a link  between  The 'zonal approach' thus served to  coastal  state  pollution  prevention  responsibilities and the concept of the EEZ.17 The  proposal, however, was criticized  by certain  maritime  states which argued that i t gave coastal states too much power to the  detriment  of the convention  as a whole, and by some  environmentalists who criticized the double standard provision in favour of developing states. On the whole, however, the reception among the maritime states was mixed; ranging from partial acceptance by states like Liberia,18 to total opposition by the Soviet Unionl^and the United Kingdom.20 The Caracas session thus saw a wide gap between the maritime and coastal states on the question of enforcement of vessel-source pollution, the former desiring a shift from the pre-existing flagstate order, whilst the latter generally stuck to the idea. To  promote  consultations  progress  on marine  and consensus,  pollution  were  inter-sessional  conducted  within the  framework of the Informal Group of Juridical Experts on the Law of the Sea or the Evensen Group.21  Further, at the Third Session,  - 74 -  a compromise proposal on enforcement of vessel source pollution was introduced  by a group of nine maritime states led by the United  Kingdom.  22  The nine-power draft involved a tripartite enforcement by flag, coastal, and port-states, under stated conditions, of regulations established through the competent international organization (the IMO).  In line with previous conventions on the subject, the  proposal  exempted warships, naval, auxiliary, or other ships owned  or operated by states and used only on governmental non-commercial service.  Port-state enforcement, then, was the main basis of the  23  compromise.  Again the reaction to the proposal was mixed. The  United States delegate, for instance, "welcomed the draft articles in which careful attention was paid to certain specific problems and which would be useful in the final phase of the committee's work."  24  However, he felt the articles placed too many restrictions on the enforcement of international rules by port-states. effective  system of port  To him, a "truly  state enforcement should be given an  important place in the current negotiations." The U.S.S.R. delegate also said the sponsors had adopted the right approach towards reconciling national and international rules and had correctly evaluated various sources of pollution from the international point of view. He, however, reiterated his country's preference for flag-state jurisdiction.  25  Canada, the leader of the coastal states was also "in general agreement with sponsors."  26  some elements  of the approach  adopted by the  It was of the view, however, that coastal states  should retain the right of environmental self-protection and to  -  7 5  -  ensure effective enforcement of agreed standards, with participation in such enforcement by coastal states, port states, and flag states. It did not believe that standard-setting powers in the coastal state would lead to a pleothra of conflicting regulations, provided the relevant provisions contained appropriate  safeguards.  The coastal  states should have certain rights and obligations in its EEZ, and special provision should be made for pollution control in critically vulnerable areas.27 Similarly, the Egyptian delegation pointed out that the draft articles were concerned entirely with maintaining the powers of the flag state vis-a-vis the powers of other states, even in the waters of the jurisdiction of the latter.  That concept, he stressed, had  prevailed in earlier international treaties because of the dominance of international affairs by certain states, but such inequities had become unacceptable, and world opinion  had come to reject the  hegemony of one group of states over another. The delegation could, therefore, not accept those provisions of the nine-power draft which gave eminent rights to the flag state.28 The compromise nine-power draft, therefore, initially could not bridge the gap between the coastal and maritime states, the former desiring an extension of jurisdiction outside the territorial sea whilst the latter opposed this.  Further negotiations on the vessel  source pollution problem was conducted by the Evensen group, but the matter was not fully resolved.  A clear trend, however, emerged  against coastal state standard setting in the EEZ.29  j the course n  of the session, the conference President proposed that the chairman of the three committees should each prepare a single negotiating text (SNT) covering the subjects entrusted  to them.  This was to  - 76 take into account all the formal and informal discussions held. The texts would not prejudice the position of any delegation, but would be a basis for further negotiation.30 The SNT  draft31 on pollution incorporated all the texts the  main lines of which had been agreed upon in committee, while for vessel-source pollution, the basic idea of the nine-power draft were more or less foil owed. 31  The SNT, however, made provision on the  lines of the zonal approach draft, for enforcement in special areas in the EEZ in articles 4, 5 and  6.33  By article 5 above, Canada obtained recognition of its right to adopt and enforce its own laws for the prevention, reduction, and control of vessels in ice-covered areas.34 felt  to be so permissive  and  Article 5, however, was  vague, that many maritime states  expressed concern lest i t be applied too freely. exception  A specific Arctic  as well as another more restrictive article for other  areas of environmental vulnerability had, therefore, to be provided at the subsequent New York session.  35  The ISNT were presented on the very last day of the session. Between the third and fourth sessions, the Evensen Group met three occasions to consider these drafts. informal  meetings and  small  drafting alteration  group that was to the SNT.  36  At the fourth session,  groups discussed  chairmanship of J.L. Vallarta of Mexico.  on  the SNT The  under the  negotiating  and  formed effected some basic structural This was  done upon the basis of an  "outline of issues concerning vessel-source pollution" prepared by the Chairman of Committee III.  The results of the negotiations,  done in small groups, were subsequently approved by Committee III as a whole.  This formed the basis of the Revised Single Negotiating  - 77 Text (RSNT).  37  The  new  section on ice-covered areas, based on  consultations among Canada, the United States, and the Soviet Union, the delegations directly concerned with the question, read: Article 43: Coastal States have the right to establish and enforce non-discriminatory laws and regulations for the prevention, reduction, and control or marine pollution from vessels in ice-covered areas within the limits of the economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection of the marine environment based on the best available scientific evidence. In addition, the RSNT further elaborated on the previous SNT texts.  Further negotiations were conducted at the New York session,  where the President of UNCLOS III proposed the preparation of an Informal  Composite Negotiating Text (1CNT).  revision  of  38  This was  the RSNT, including in a co-ordinate  provisions of all parts of the RSNT.  to be a  manner, the  The text, prepared by the  President, assisted by a team composed of the chairmen of the three main committees, the chairman of the Drafting Committee and the Rapporteur General,  was  based on the experience,  judgment, and  assessment of the chairman in regard to the provisions that not only commanded the widest ascertainable support, but at the same time held out the prospect of consensus. The ICNT was  to serve purely as a procedural device and only  provide a basis for negotiations without affecting the right of any delegation to suggest a revision in the search for a consensus.  39  - 78 -  In spite of its informal character, "because i t was to be the third revision of the text in a conference working by consensus, no one could under-estimate the difficulty of amending its provisions and its influence on the development of the Law of the Sea, both in the conference and through State practice".40 in any case, the majority of delegations were in agreement on the provisions on vessel-source pollution.41 The seventh session met (March 21 to May 19, 1978) to revise the ICNT and formulate a draft convention.  The work of Committee  III was influenced by the "Amoco Cadiz" disaster.  This flag of  convenience vessel had gone out of control, and with only one system each of propulsion and steering, had gone aground.42  The incident  increased the awareness and the concern of the magnitude of possible hazards and the need to improve preventive measures by strengthening both standard setting procedure and the enforcement measures.43 Among the ICNT articles governing the matter, was article 222, modelled on the lines of the International Convention Relating to Intervention on the High Seas in cases of Oil Pollution Casualties (Intervention 69). It read: Nothing in this Chapter shall affect the right of States to take measures, in accordance with international law, beyond the limits of the territorial sea for the protection of coastalines or related interests, including fishing, from grave and imminent danger from pollution or threat of pollution following upon a martime casualty or acts related to such a casualty. Measures taken in accordance with this article shall be proportionate to the actual threatened damage. At the conference at which number of coastal  states  such  Intervention 69 was adopted, a as Canada refused  to sign the  - 79 convention  because they felt  the  restrictions  in i t were even  greater than those applicable under customary international law. proposal  was  strengthen  A  introduced by the French delegation to clarify and  this article.  As the delegate explained, the"obvious  lesson of the Amoco Cadiz and other disasters was that remedies for pollution were not enough. What was important was the prevention of pollution.  It must, therefore, be made clear that the measures  referred to in Article 222 could be taken at an early stage before i t was too late for them to be effective."44  This French proposal  led to what eventually became article 221 of the convention. provides  that the  Convention  are  right of  those  It  intervention exercisable under the  applicable  both  under  customary  and  conventional law.45 During the eighth session, at its 30th meeting of May 12, 1978, the Third Committee considered the report on informal negotiations which took place during the 7th session and indeed completed its work.46 was,  The protection and preservation of the marine environment  in fact, the  first  conference's negotiations.47  concluded item on  the  agenda of the  j these negotiations, an earnest n  effort was made "to keep a viable balance between the ecological considerations and the legitimate demands of expanding international navigation, between national legislation and enforcement measures on the one hand, and the international rules, standards and regulations on the other, between coastal State and flag State jurisdiction, between the interests of developed maritime powers and  developing  countries."48 That the marine environmental provisions were the first to be concluded is due partly to the fact that marine environmental issues had been the subject of discussion in previous international forums  - 80 -  such as the IMO  and Stockholm conferences.  Thus compared to an  issue like sea-bed mining, i t was not new to delegates, many of whom had participated in these international conferences.  With regard to  vessel source pollution, there already existed technical rules on the matter.  What was  required was  the necessary jurisdictional  framework to allow the technical expertise of the IMO to be brought to bear on these measures. Even on the question of jurisdiction, issues such as port-state enforcement and enhanced coastal-state competence outside the territorial  seas had been the subject of  intense discussion in previous conferences.  Besides, catastrophic  vessel accidents such as the Torrey Canyon and the Amoco Cadiz (the latter occurring right in the middle of the conference) brought clearly home to delegates the need for effective preventive measures against vessel-source pollution. Much credit also goes to the Chairman of the Third Committee Mr.  Yankow, and  his deputy Mr.  Vallarta, as well as the Evensen group for the able manner in which they conducted the business of the Third Committee.  Above a l l ,  there was the realisation on the part of delegates of the need for compromise.  Port-state enforcement emerged as the main basis of  this compromise.  The proposal, coming as i t did from the maritime  states, was evolved with the protection of navigational interests in mind.  In-port  navigation.  inspections constitutes minimal interference with  Besides, i t obviates the practical dangers inherent in  the stopping and boarding of vessels at sea.  Port-state enforcement  (discussed  co-operation  below), however, requires  coastal and flag-states.  the  of both  Once this is forthcoming, i t is a good  complement to coastal and flag-state  enforcement, especially for  states that lack the requisite technical and manpower requirements to police the vast expanse of the EEZ.  - 81 The result of this prolonged negotiation was that with regard to the EEZ coastal  states agreed to forego the right to enact  national laws to protect and preserve the marine environment, except in  limited circumstances, in return  for the right to enforce  internationally agreed standards covering vessel source pollution.49 To an examination of this, we now turn.  The UNCLOS III Scheme of Enforcement  As observed in chapter I, the Convention on the Law of the Sea crystallizes the EEZ as an established institution of international law.  The vessel-source pollution provisions of the Convention cover  the EEZ.50 This allows for the enforcement of international rules and  standards  established  through  the competent international  organisation or general diplomatic conference, for the prevention, reduction and control of pollution of the marine environment from vessels.51 The  Convention  competence  does not supplant  as regards  vessel-source  supplements these by providing  IMO  standard  setting  pollution. .Rather i t  solutions to the jurisdictional  questions necessary for the effective implementation and enforcement of the IMO standards, in particular MARPOL 73/78.52  p  o r )  e v e n  though the Convention does not expressly state what this "competent international  organization" i s , the IMO is acknowledged as the  organisation concerned.53  Therefore, the IMO rules, especially the  International Convention for the Prevention of Pollution from Ships, as amended by its 1978 protocol (MARPOL 73/78), are to be the basis of enforcement in the EEZ.  - 82 A problem that arises in connection  with this is whether non-  parties to these IMO conventions will be bound by such rules if they ratify UNCLOS; for pacta tertiis nec nocent nec prosunt.  As  54  emphasized by the International Court of Justice (ICJ) in the North Sea Continental Shelf Cases,  55  a "Convention is in force for any  individual state only insofar as having signed i t within the time limit provided for that purpose that state has also subsequently ratified  it;  or not having signed within that time limit, has  subsequently acceded to the Convention."56 with regard to these IMO conventions, however, i t is arguable that they could be customary rules on the matter.  57  For, as observed, these rules are in force  for a majority of ship owning states.  58  Further, i f the Convention  incorporates the IMO conventions, then signatories would be bound by them.59 This, in fact, appears to be the case.  It may be recalled  that MARPOL 73/78 and the London Dumping Convention (LDC 72) left their jurisdictional question  to be resolved by UNCLOS III.  A  reference to the enforcement of international rules and standards must necessarily refer to such rules. Moreover, the view prevailed at UNCLOS III that these international rules and standards were those established by the IMO. Indeed, "one delegation stated in an informal  negotiating  group  of the Third  Committee,  that the  applicable international rules and standards for the protection of pollution from vessels in the article on enforcement by port states, refer to the existing IMCO [now IMO] treaties of 1954 and 1973 and to future IMCO treaties; this was not contradicted."60 view also has the support of jurists.  This  Churchill61 for instance has  stated that: Although [the Convention] nowhere define such "generally accepted international rules  - 83 and standards", they are generally taken as referring to the rules and standards contained in the IMCO Conventions . . . Thus if the Convention were to enter into force and be widely ratified, the rules and standards of the IMCO Conventions would be applied more widely than at present, because they would also be applicable . . . to non parties of the Conventions and not just the parties as at present (emphasis added).tz Similarly, Van Reenen has stated that becoming a Party to the new Convention on the Law of the Sea entails being bound by rules and standards which are already binding on other states, viz., the states addressed by them. By becoming a Party to the new Law of the Sea Convention, a state acquires a series of additional rights and more importantly - duties. Most of the rules of reference in the Draft Convention call for the adoption of municipal laws and regulations which "conform to" certain rules and standards, which "give effect" to them or which "implement" them, or "ensure compliance with" those rules and standards. This is tantamount to creating a formal obligation to adhere to the rules and standards concerned. It is submitted that the rules of reference may therefore be q u a l i f i e d as rules of incorporation. The phenomenon of incorporating legal rules with a different origin into a treaty is not new. The incorporation of rules and standards in the new Convention on the Law of the Sea will certainly apply in relations between Parties to this Convention.63 After an exhaustive enquiry into the matter, he concludes with "an affirmative answer . . . to the Question whether a reference in the new Convention on the Law of the Sea to international rules and standards or to generally accepted international rules and standards would entail  these rules and standards being binding upon every  State which becomes a party to the new Convention."  64  Thus the IMO rules, especially MARPOL 73/78^become the norm or benchmark to which the validity of any national assessed.  State parties to the Convention  standard may be  would thus have to  - 84 change, modify, or even adopt, as the case may be, their legislation to be in conformity with UNCLOS III texts.65 The Convention marks a shift from the reliance on flag-state enforcement outside the territorial seas. In addition to flag-state jurisdiction, i t provides for coastal and port-state enforcement, and hence, a three "pronged assault" on the vessel-source pollution problem.  This, as observed, is the result  of consensus and  compromise at UNCLOS III. Since the main burden of enforcement action should occur before a ship commits a violation of pollution laws,66  m c  ]  n  emphasis is  s t i l l placed on flag-state enforcement under the convention.67 i t is this idea, and in particular, the right of pre-emption (discussed below) accorded flag-states,  that  has raised  doubts about the  efficacy of the enforcement regime under the convention. Professor Bernhardt^ for example, has commented: The practical effect of [flag state preemption] is to make flag State enforcement the lowest common denominator of mandatory enforcement under the vessel-source pollution chapter, notwithstanding the elaborate machinery which has been established for port State and coastal State enforcement. Given the poor record of flag State enforcement, this scheme is not likely to be effective (emphasis added).68 A contrary  view, however, is presented in this study.  Admittedly, the flag-state enforcement record in the past has been poor. However, flag-state jurisdiction under the Convention is radically different from the 1958 Geneva provisions.  69  The Convention on the Law of the Sea follows the Geneva texts on nationality and the requirement for a"genuine link" between a vessel  and the state  of its registry.  Mere requirement for  - 85 -  a "genuine link" i s , however, not enough.  "A detailed elaboration  of this requirement. . . is necessary in order to ascertain whether the maritime nations  and  in particular the flag of convenience  states satisfy the minimum standards of control and jurisdiction over their ships."70  jo this end, the Convention goes beyond the  mere requirement for a state to exercise  its jurisdiction  and  control in administrative, technical, and social matters over ships flying its flag (as provided by the 1958 Geneva provisions),71 by detailing  certain specific obligations in connection  requirements.  with these  The Convention provides specifically that states  maintain a register of ships containing the names and particulars of ships  flying  its flag  and  to  assume jurisdiction  under their  internal laws in respect of masters, crew, and other administrative . and  social matters connected with these vessels.  further  requires  states to take appropriate  Article  measures to ensure  safety at sea with regard to: a)  4.  94(3)  the construction, equipment and seaworthiness of ships: b) the manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments; c) the use of signals, the maintenance of communications and the prevention of collisions. Such measures shall include those necessary to ensure: a) that each ship, before registration and thereafter at appropriate intervals, is surveyed by a qualified surveyor of ships, and has on board such charts, nautical publications and navigational equipment and instruments as are appropriate for the safe navigation of the ship; b) that each ship is in the charge of a master and o f f i c e r s who possess appropriate qualifications, in particular in seamanship, navigation, communications and marine engineering, and that the crew is appropriate in qualification and numbers for the type, size, machinery and equipment of the ship; c) that the master, officers and, to the extent appropriate, the crew are fully conversant  - 86 and required to observe the applicable international regulations concerning the safety of life at sea, the prevention of collisions, the prevention, reduction and control of marine p o l l u t i o n , and the maintenance of communication by radio. These measures are not exhaustive and must conform to generally accepted international regulations. already discussed.72  These are the IMO Conventions  jhe effect of these provisions will be that as  seen above, even where a state is not party to the relevant IMO conventions, i t will be bound to exercise proper control over its vessels  by  virtue  of  overriding  obligations  imposed  by  the  Convention.73 Article 217 further imposes an obligation on flag-states to ensure  compliance  by their vessels, of international  rules and  standards established by the IMO for the prevention, reduction, and control of vessel-source pollution. adopt  laws  and  regulations including  implementation.  The  prohibited  sailing  from  In this connection, they are to measures  for  their  measures include ensuring that ships are until  they  can  comply  with  these  international standards, periodical inspections, the carrying aboard international  certificates,  and  immediate investigation  of, and  where necessary, institution of proceedings in respect of violations irrespective  of where they  proceedings must be promptly  occurred.  The  outcome of these  communicated to either the coastal  state or the IMO in cases where such proceedings are instituted at their request.  Penalties in the event of convictions are to be  "adequate  in  occur."74  The requirement by the flag-states to inform states and  the IMO  severity  to  discourage  violations  of the outcome of proceedings being now  obligation  imposed by the Convention,  wherever they  an overriding  i t is not likely  to be  - 87 ignored.  This  is because  governments do not want to have a  reputation for illegal or irresponsible behaviour.  The recording,  publication and discussion of enforcement records could thus put a substantial pressure on them to act.75 The Convention does not provide for sanctions in the event of non-compliance by flag-states with these provisions as certain delegations at UNCLOS and some publicists would have wished.76 However, this is a feature of international law which, among other things, has no police force to ensure compliance with its rules but defer to states to ensure such compliance.  In this regard, article  300 of the Convention requires states to fulfil in good faith the obligations  under  the Convention  and to exercise  the rights,  jurisidiction, and freedoms recognized in i t in a manner that would not constitute an abuse of rights.  This is a codification of the  pacta sunt servanda rule. Provision of sanctions for non-compliance  with conventional  obligations is likely to be frowned upon by states as inconsistent with their sovereignty. This does not mean that without this states will not comply with the rules provided by the Convention.77 For, as Henkin has stated: Violations of law attract attention and the occasional important violation is dramatic; the daily, sober loyalty of nations to the law and their obligations is hardly noted. It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.78 In spite of the lack of sanctions, there are other equally compelling  reasons  for state  observance  of the rules of  international law: That international law will be generally observed is an assumption built into international relations. Nations have a common interest in keeping the society running and keeping  - 88 -  international relations orderly.. -Every nation's foreign policy depends substantially on its "credit" - on maintaining the expectation that i t will live up to international mores and obligations.. Governments do not like to be accused or criticized. They know that violation will bring protest, will require reply, explanation, and justification. In our time, at least certain kinds of violations are likely to be brought to the United Nations., and few governments would face that prospect with equanimity. Law is commonly observed because nations desire their relations with other countries to be friendly. Any violation between two countries will disturb relations... 79  Besides, dimensions.  vessel-source  pollution  is  a  problem  of  global  It is thus in the interest of states to cooperate in  combating i t . This point has been brought fully home to states, during the last decade, following catastrophic vessel accidents like the Torrey  Canyon, the Argo Merchant and  activities  of various  environmental  the Amoco Cadiz;  pressure  groups and  the in  international forums such as the Stockholm conference, the IMO and UNCLOS III; as well as unilateral action by states like Canada and Iran.  States are thus more likely to obey such rules dealing with  issues affecting their interests.  Further, unlike the High Seas on  /  Convention that was not widely ratified, in total  80  '  a majority of states was  agreement with the Convention's texts on environmental  preservation.  It may be recalled that i t was through the initiative  of states such as the United States and the United Kingdom that the pollution enforcement regime was devised at UNCLOS III. The refusal of these states to sign the Convention is not because of the marine environment  provisions  negotiated,  but  Guruswamy, for provisions  of  which, in  rather of the instance, the  has  fact,  were the  sea-bed provisions. suggested  that  Convention, in view of  the  the  first  to  be  Indeed Dr. environmental  nearly complete  - 89 consensus by which they were arrived at, could be customary rules on the matter. He writes: Notwithstanding any difficulties obstructing the formation of customary law created by the requirements of a "package deal" and the context of "consensus" negotiation, i t would be erroneous to preclude the codification of customary law or its development . . . Indeed compromises and trade-offs are of the essence of negotiations at law making conferences. If the law codified at Geneva can be treated as customary law, i t is difficult to see why the same results should not follow the law codified by UNCLOS.81 Such a reliance on custom would appear to enable non-parties to  enjoy  benefits  from  the Convention's  marine environmental  provisions without becoming parties to i t . The United States for instance insists that most of the Convention's provisions including those  parts  dealing  with  navigation  and overflight, reflect  prevailing international practice and, therefore, can be invoked by non-parties as representing new customary international law. This view, however, was opposed by delegates, at the Convention's signing ceremony at Montego Bay, as inconsistent with the "package deal" nature of the Convention.82 Further, many of the maritime states that have not signed the Convention, have ratified MARPOL 73/78.83 7he latter relies on the Convention  to  resolve  its jurisdictional  question  including  enforcement.  These maritime states would thus have to rely on the  Convention's  provisions  on the matter  in implementing MARPOL  73/78.84 i addition, coastal and port-state enforcement (discussed n  below), in particular, the denial of entry into ports by states of vessels not conforming to international standards, is another potent means of ensuring vessels.  that flag-states maintain standards on their  - 90 The  problem, however, is with flag of convenience states.  These as noted, lack effective administrative, technical, and other institutional structures to ensure compliance by their vessels of anti-pollution  standards.  But even with these vessels, as the  Liberian example shows, there could be a way of enforcement.85 Most of the vessels registered under the Liberian flag seldom call at its ports.  Liberia has, therefore, instituted a system of  vessel inspection abroad.  It has set up a Marine Division made up  of inspectors and qualified surveyors and required its vessels to undergo a periodic inspection once a year.  For convenience, owners  or masters may request their annual inspection at a port convenient for the ship's purpose. investigation  The inspector's report could result in an  and eventual  revocation of licence.  prosecution  for an offence  or a  Liberia has also updated its procedures in  respect of enquiries in connection with vessel accidents.  These  usually turn up navigational and other offences and thus help to ensure that standards are maintained in the future.  Above a l l , the  growth of iron ore exports from Liberia has contributed  to a  modification of Liberia's position as a "pure" flag of convenience, since many of these ore combined carriers employed in the trade are owned by Liberian companies.  86  These developments in Liberia are  quite significant since about 21.3 percent  of the recorded 28.9  percent of the registered world shipping tonnage sailing under flags of convenience are registered in Liberia.87  y^tti the coming into  force of the Convention, the remaining flags of convenience states (about  7^6 percent) would  have  to follow  Liberia«s overseas  inspection example or face the sanctions of coastal and port-state enforcement.  For under  these  as we shall  see, substandard  - 91 vessels  could  be denied  entry  into  ports,  detained  or even  prosecuted  for non-compliance with  prescribed international  standards.  Thus, the significance of flags of convenience vessels  from the point of view of safety and protection of the marine environment is likely to decline. Besides, the enforcement regime provided by the Convention must not be viewed solely in terms of flag-state enforcement. tripartite  scheme involving as well, coastal  It is a  and port-states,  together with adequate checks and balances to ensure an effective and viable system. Port-state jurisdiction, in a strict sense, is not new.  States  in the past have had the right to set conditions for entry into and exit from their ports, although provision for access to ports have always been ensured by treaties and other means. This competence, however, has traditionally been limited to matters connected with, up  to and including, the territorial  seas.  Also  certain IMO  Conventions, in particular, MARPOL 73/78, i t may be recalled, incorporated  the concept of port-state enforcement even to the  extent of enforcing the discharge violation standards on the vessels of non-state parties. However, this jurisdictional question was not fully resolved.  MARPOL 73/78 also does not allow prosecutions by  port-states. Under the Convention, in addition to powers of inspection and investigations, port-states have powers to prosecute88 vessels that violate the established international standards.  The Convention  recognizes the right of states to set conditions for the entry into their ports subject to the requirement of due publicity.89 it  goes  beyond  this  by providing  for port-state  Further  enforcement  (including prosecutions) of international discharge violations up to  - 92 and including the high seas, when a vessel is voluntarily within its ports (article 218)90  Those violations occurring outside a coastal  state's own EEZ must, however, be enforced at the request of a state damaged or threatened by the discharge violation or by the flagstate. The  Convention  limits  states  certificates  inspections  examination  of  Conventions  such  Certificate  (1.0.P.P.C.) under MARPOL 73/78; and  as  the  or  in-port  documents issued  International  to  under the  Oil Pollution  an IMO  Prevention  the Cargo Ship  Safety Construction Certificate (C.S.S.C.C.) and Cargo Ship Safety Equipment  Certificate  (C.S.S.E.C.) under  SOLAS  74.91  These  certificates are issued by Classification Societies. To ensure the bona fides of these, MARPOL 73/78 requires states parties to furnish the IMO  with the details of Classification Societies which they  authorize to issue I.O.P.P.C.s to their vessels.92 Further  inr-port inspection may  be carried out only after an  inspection of these documents and when believing that the  there are clear grounds for  condition of the vessel  does not correspond  substantially with the particulars of those documents, the contents of  such  documents are  suspected  violation,  certificates violation  and of  not or  sufficient the  records.93  vessel  to confirm is not  where an  international  or  verify  carrying  a  valid  investigation reveals a  standards,  the  vessel  pending  proceedings, should be promptly released on the posting of a bond or other financial security.94  This provision is aimed at preserving a  balance between environmental protection and rights to navigation. However, the release of such a vessel may be refused "whenever i t would present enviroment . . .  an  unreasonable  threat  of  damage to  the marine  or made conditional upon proceeding to the nearest  - 93 repair yard."  95  This provision should enable port-states to prevent  substandard vessels from polluting the marine environment. Article 218 refers to discharge  violations but there is no  reason why port-state enforcement should not include construction, equipment  and manning  (CEM) standards  as well.  Article 219  provides: States which, upon request or on their own initiative, have ascertained that a vessel within one of their ports or at one of their off-shore terminals is in violation of applicable international rules and standards relating to seaworthiness of vessels and thereby threatens damage to the marine environment shall, as far as practicable, take administrative measures to prevent the vessel from sailing. Such States may permit the vessel to proceed only to the nearest appropriate repair yard and, upon removal of the cause of the violation, shall permit the vessel to continue immediately (emphasis added). CEM  standards,  i t is submitted,  relating to seaworthiness of vessels." permissive  form part  of "standards  Article 218 is couched in  terms ("may" instead of "shall") and this has been  criticized by Professor Bernhardt: ...Given that port-state enforcement initially was formulated as the viable compromise solution between the conflicting modes of coastal-State and flag-State enforcement, the failure to insist that i t be mandatory seems an unnecessary sacrifice of environmental interests. 96  The provision is designed so as not to place obligations on states; especially the developing ones that may lack the necessary technical  and other  institutional  obligations under MARPOL 73/78.  97  structures to carry out such  There is however, every incentive  for such states as well as the developed ones, to exercise this right of enforcement.  This is more so in view of the harm that  pollution does to marine life in the EEZ over whose resources these  - 94 states enjoy sovereign rights.  Besides, a coastal state is under  the general obligation to take the necessary measures to protect and preserve the marine environment,98 d this includes the requirement a n  to legislate to give effect to international rules." Port-state enforcement is quite significant in many respects. As Legatsi states: Port state jurisdiction may reduce the incentive of coastal states to extend unilaterally their powers over broad areas of the sea. In the past few years, coastal states have sought to widen the geographic reach of their vessel-source pollution control powers in order to protect their coastlines from environmental damage due to vessel activity. Coastal states may be induced to relinquish some of their power by allowing port states to conduct their enforcement proceedings. This relinquishment of enforcement power is largely motivated by safety and economic considerations; coastal states would be able to reduce their policing of coastal waters and the boarding at sea of vessels suspected of violating pollution standards. The port state has an incentive to accept its enforcement role because i t may later wish to request similar assistance from other states. Thus i t is to the reciprocal advantage of both the coastal state and the port state to assign enforcement powers to the port state.100 The issue is whether this reciprocal advantage is sufficient enough an inducement for states to spend time and scarce resources on the enforcement of violation of pollution regulations occurring in other states jurisdiction.  Contrary to doubts expressed on the  matter, i t appears that states are prepared to do this (as shown by the discussion below). This stems from the awareness of the global nature of marine pollution and the consequent need for international cooperation to combat i t .  1 0 1  MARPOL 73/78 which entered into force in October 1983 states  parties,  approximately 67.5  the  combined  fleet  of  which  has 25  constitutes  percent of the gross registered tonnage of the  world's merchant fleet.  These include leading maritime states such  - 95 as the United States, the United Kingdom and the Federal Republic of Germany.102  Even though MARPOL 73/78 does not allow for  prosecutions by port-states, the evidence gathered by these states during in-port inspections are to be submitted to coastal or flag states  for them to institute  detected.1°3  Several  proceedings when violations are  regional  agreements dealing with the  protection of the marine environment were concluded during the last decade in Europe.  104  Of these, the Helsinki Convention and Bonn  Agreement dealing with marine pollution by oil have adopted portstate enforcement. The  Helsinki Convention  is a formal  and comprehensive  intergovernmental arrangement on marine pollution, including both East and West European states.  For vessel source pollution, the  convention follows MARPOL 73/78 and the relevant IMO recommendations on  the subject  such  as ship  reporting  system  and port-state  inspection rights. These have been adopted and largely implemented especially by the Scandinavian countries. Under the Bonn Agreement, states bordering the North Sea are responsible for surveillance, reporting and combating of oil spills on  the basis  providing  of geographical  mutual  assistance  zones of responsibility, and for  when required.  To strengthen  this  Agreement, the parties decided "to turn i t into an instrument for a regional 'port statel enforcement system for vessel-source pollution as envisaged in the MARPOL Convention of 1973/78 and the Law of the Sea Convention."  105  The Paris Memorandum of Understanding on Port  State Control was concluded in July 1982.  106  During its first year  of operation, a total of 8839 vessels from 108 different states were inspected  by authorities  in the 14 states  which  signed the  - 96 Memorandum.  Of the 8839 vessels, 217 had "deficiencies serious  enough to result in their being delayed or detained. . . .30 per cent of all deficiencies were found in the life-saving appliances with 17 per cent involving fire fighting equipment."  Similarly,  107  there are plans to strengthen Canadian-United States cooperation on the  subject.  jurists,  109  108  Thus contrary  to fears expressed  by certain  port-state enforcement is in fact a viable institutional  mechanism for dealing with vessel-source pollution. Port-state enforcement should provide an alternative means of enforcement,  especially  for developing  states  that  lack the  necessary technical and manpower requirements to police the vast expanse of water in the EEZ. This is because many of the vessels that navigate  through the EEZ usually call  at ports.  110  The  technical and manpower limitations are not with developing states alone.  The cost of regular air and sea patrols is such that many  developed states have had to rely almost completely on reports of aircraft and vessels engaged in other duties. States  Coast Guard engages in little  harbours. to  111  surveillance outside the  Similarly, Canadian enforcement in the EEZ is limited  the Department  flights.  Even the United  of National  Defence  (DND) surveillance  112  Port-state enforcement underlies the global nature of pollution and the need for international means to combat i t . even i f a state could  eliminate  For without i t ,  pollution within  its EEZ by  effective standards and enforcement measures, i t could not protect itself from discharges  occurring just beyond this zone that are  carried landwards by winds and currents.  113  - 97 -  Article 220 provides for coastal state enforcement: When a vessel is voluntarily within a port or at an off-shore terminal of a State, that State may, subject to section 7, institute proceedings in respect of any violation of i t s laws and regulations adopted in accordance with this Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels when the violation has occurred within the exclusive economic zone of that State . . . This provision like that on port-state enforcement is couched in  permissive  and not mandatory language.  The criticisms and  commments on port-state enforcement regime apply mutatis mutandis to this  enforcement  surveillance,  regime.  inspections,  Coastal-state investigations  enforcement and  involves  prosecutions.  Inspections and investigations are to be carried out as is provided for under port-state enforcement.114  Outside its ports and within  the zone, the enforcement powers are circumscribed.  This is owing  to the sui-generis character of the zone which requires that a careful balance be maitained between the interests of coastal states and navigational rights as a whole. Coastal-state information  enforcement power in the EEZ is limited to  gathering  stated conditions.H5 that the vessel  and inspections,  the latter action under  There must be "clear grounds" for believing  has violated international rules and standards  governing vessel-source pollution. Further, the violation must have resulted  in "substantial  discharge  causing  or threatening  significant pollution of the marine environment."  In addition,  inspection is justified only when the vessel has refused to give information or " i f the information supplied is at variance with the evident  factual situation and i f the circumstances of the case  justify such inspection."  - 98 After inspection, and where violations are established, the coastal state may either await the arrival of the vessel in its ports  so as to commence proceedings, or transmit  the necessary  evidence to the next port of call for necessary action. connection, article information  regarding  220(3) allows the coastal-state  In this  to require  the identity and port of registry, the last  and next port of call, and other relevant information establish whether a violation has occurred.  required to  As observed, the  Convention requires port-states to act as far as practicable on this request.  Flag-states are also to adopt laws and regulations and to  take measures to-ensure that vessels flying their flags comply with such requests (article 220(4)). Admittedly, the success of the system depends on cooperation between states, but, as seen above, in view of the global nature of the  pollution problem, there is every incentive  collectively  act against  Convention obligations.  i t ; and also  in fulfilment of their  In addition, coastal  stronger powers of enforcement in the EEZ. objective  for states to  states have other  Where there is "clear  evidence" that a violation has resulted in "discharge  causing a major damage or threat of major damage" to the EEZ or its resources, the coastal  state may institute proceedigs including  detention  of the vessel  220(6)).  In this connection, i t may exercise the right of hot  pursuit.  116  in accordance with  The Convention  neither  defines  its laws (article  "clear  grounds,"  "objective evidence," nor "substantial discharge."  Presumably i t  leaves that for the determination of coastal states.  In view of the  rights that these states have over the resources of the zone, and in spite of the circumscribed  nature of coastal  state enforcement  powers, there is immense potential for coastal states to determine  - 99 these standards in such a manner as to enable them to exercise greater enforcement powers than the Convention's stipulation in the name of resource conservation.117 The  Convention  also  provides for enhanced  coastal  state  enforcement with regard to dumping, rights of intervention, as well as enforcement in "special" and "Arctic areas."  At the conference  that adopted LDC 72, delegates were unable to agree on specific coastal state jurisdiction over dumping in off-shore areas other than territorial provided  seas.H8  for enforcement  Although  article  by a state  VII(l) of LDC 72  of vessels  under i t s  "jurisdiction" believed to be engaged in dumping, this was not viewed by many delegates as extending beyond the territorial seas. Consequently, like MARPOL 73/78, this jurisdictional question was left to be resolved by UNCLOS III. Article 216 of the Convention provides an answer to this jurisdictional problem by providing for coastal state enforcement of this anti-dumping law in the EEZ.H9 Article 221, as seen above, also provides for a much broader and enhanced coastal  state  right  of intervention  in the event of  maritime casualties. Coastal  states,  i t may be recalled,  agreed  to forego  prescriptive rights in the EEZ in return for the right to enforce internationally agreed standards in the EEZ.  However, there are two  exceptions to this arrangement, namely enforcement in "special" and "Arctic areas". These as seen above, originated from the "special measure controversy" at the 1973 conference and the "zonal approach" proposal of enforcement presented by a group of coastal states led by Canada at UNCLOS. Article 211(6)120  o n  special areas enables coastal states to  adopt "special mandatory measures" of enforcement in areas of its  - 100 EEZ where international  standards are inadequate for "recognized  technical reasons in relation to its oceanographical and ecological conditions, as well as its utilization or the protection of its resources and the particular character of its traffic."  These  measures are subject to prior notification to, and approval by the IMO; and must be duly publicized.  Such additional laws may relate  to discharges as well as international CEM standards. The provision is an improvement on MARPOL 73/78 which is limited to discharge violations mainly in the Baltic, Gulf and Mediterranean Seas areas. The requirement to consult with the IMO should not detract from the effectiveness of the provision since the latter is unlikely to disagree with the establishment of such an area when the stated conditions exist.  Rather, they must be viewed as a check on coastal  states that might act arbitrarily or even capriciously in the name of environmental protection and preservation in the EEZ to the detriment of the freedom of navigation. enforcement This  Provision is also made for  in Arctic areas under article 234 of the Convention.  provision  was  at the instance of Canada to justify its  A.W.P.P.A. (See Chapter IV).  Outside these areas, coastal states  are limited to the enforcement  of IMO  standards, which as seen  above, thus become the norm or benchmark to which the validity of any national standard may be assessed.  As observed, state parties  to the Convention would thus have to change, modify or even adopt, as the case may prescribed  be, their legislation  UNCLOS standards.  in conformity with these  Consequently,  there would be  uniformity and consistency in national legislation. would engender a much more efficient  and  This in turn  effective  regime of  enforcement since, as in the European example, i t would be easier  - 101 for  states  to cooperate on the matter.  Indeed, reliance on  international standards is a highly desirable thing especially in a sui-generis zone such as the EEZ. Abecassis sums up the matter as follows: First, i t is clear that marine-based o i l pollution is an international problem, and so should be solved by international agreement. Secondly, unilateral measures can affect fair competition in an open market. For instance, i f State A alone enacts that all ships flying her flag shall be fitted with segregated ballast tanks, or oily water separators, or shall comply with other such regulations, such ships will bear economic and operational burdens unknown to ships registered elsewhere. Thirdly, i t is most important to shipowners and to personnel aboard that a different set of regulations do not have to be complied with at each different port visited on a voyage. It makes for simpler and more efficient ship management to know exactly where the ship stands legally at any one moment and in any given situation, and uncertainty or confusion over local law can have serious effects.121 Both coastal and port-state enforcement are subject to the "Safeguard" provisions in section 7122 f the Convention. 0  provide  guidelines  on enforcement.  They  are also  These  aimed at  protecting international navigation from abuse and thus help ensure that careful balance required between coastal states' rights and navigational interests. The Convention provides for the observance of the "due process" requirement in proceedings; that enforcement may only be exercised by states' officials, warships, military aircraft, or other ship or air craft marked and identifiable as being on government service; that enforcement should not cause hazard to vessels or their crew; and that a vessel should be promptly released on the posting of a bond.  Section 7 also provides, in addition, that states shall not  delay a foreign vessel longer than necessary.  Inspections as seen  - 102 above, are limited generally to those documents required under the IMO Conventions.  Furthermore, enforcement is to be exercised in a  non-discriminatory  way, and only monetary penalties may be imposed  upon foreign  vessels.  A three-year  period  of  limitation for  proceedings as well as a "double jeopardy" clause are also provided for under the safeguard provisions. The  most important and  also the most controversial of the  safeguard provisions is the flag-state pre-emption clause.  This  provision enables flag-states to suspend proceedings instituted by coastal or port-states, within six months of the institution of such proceedings, and to undertake its own proceedings.  This provision  must, however, not be viewed as detracting from the effectiveness of the enforcement regime. before  allowing  coastal  The  rationale behind the  rule is that  or port-states to take proceedings and  impose penalties on foreign vessels, the flag-state should be given reasonable opportunity to exercise its enforcement rights and carry out its obligations which are directly derived from the relation of the ship to this state.123. Article 228(1), the relevant provision reads: Proceedings to impose penalties in respect of any violation of applicable laws and regulations or international rules and standards relating to the prevention, reduction and control of pollution from vessels committed by a foreign vessel beyond the territorial sea of the State instituting proceedings shall be suspended upon the taking of proceedings to impose penalties 1n respect of corresponding charges by the flag State within six months of the date on which proceedings were first instituted, unless those proceedings relate to a case of major damage to the coastal State or the flag State 1n question has repeatedly disregarded i t s obligations to enforce effectively the applicable international rules and standards in respect of violations committed by its vessels. The flag State shall in due course make available to the State previously instituting proceedings a full dossier of the  - 103 case and the records of the proceedings, whenever the flag State has requested the suspension of proceedings in accordance with this article. When proceedings instituted by the flag State have been brought to a conclusion, the suspended proceedings shall be terminated. Upon payment of costs incurred in respect ofsuch proceedings, any bond posted or other financial security provided in connection with the suspended proceedings shall be released by the coastal State. As formulated, the provision is not an immutable precept that allows flag-states to pre-empt proceedings anyhow. pre-emption  The right of  does not apply in the case of "major damage."  amounts to a major damage is not defined.  What  Hence a coastal state  could deny a flag-state pre-emption rights on the ground that the polluting vessel's damage amounts to "major damage."  Secondly, i t  does not apply where a flag-state has repeatedly disregarded its enforcement obligations.  A flag-state that "pre-empts" proceedings  without imposing any sanctions on its vessels could find itself being denied this right in subsequent vessels.  proceedings involving its  This is more so since flag-states are obliged to inform  coastal or port-states of the outcome of such proceedings. all,  Above  states parties would have to ensure that their legislation  conform  with  the Convention's  texts.  So long as the rules,  especially penalties are uniform, flag-state pre-emption pales into insignificance.124 The  Convention's  environmental  protection  and preservation  provisions are made subject to the "Sovereign immunity" provision under article 236. The issue of immunity for warships and other government vessels was not much discussed at UNCLOS III. Convention  merely  follows the example  of other  conventions^ by granting immunity to such vessels.  The  pre-existing  - 104 The doctrine of immunity of government ships is derived from the wider principle of jurisdictional immunity of sovereign states under traditional foreign  international law.  state from jurisdiction  It is the immunity of a  or execution  in respect of its  maritime property that entitles a state's vessel to immunities while outside its waters.126  The basis of the rule, i t has been said, is  the independence, equality, and dignity of states expressed in the maxim par in parem non habet imperium.  As stated by Lord Atkin in  t h e Cristina:127 The courts of a country will not implead a . . . sovereign; that is they will not by their process make him, against his will, a party to legal proceedings . . . The second is that they will not by their process . . . seize property which is his or of which he is in possession or control.128 For a long time, absolute immunity remained the rule. However, with states entry into commercial or other private law transactions, there developed a theory of restrictive immunity that distinguishes between acts jure imperii and  acts jure gestionis, recognising  immunity in the former and denying i t in the latter. The  restrictive theory  is thus the predominant rule in the  contemporary international scene. The Convention follows this trend by providing immunity for warships and other government vessels. Article 236 reads: The provisions of this Convention regarding the protection and preservation of the marine environment do not apply to any warship, naval auxiliary, other vessels or aircraft owned or operated by a State and used, for the time being, only on government non-commercial service. However, each State shall ensure, by the adoption of appropriate measures not impairing operations or operational capabilities of such vessels or aircraft owned or operated by i t , that such vessels or aircraft act in a manner consistent so far as is reasonable and practicable, with this Convention (emphasis added).  - 105 Thus, these vessels navigating the zone are immune from the enforcement regime discussed  above.  identification of such vessels. auxiliary vessels, there  A related problem is the  With regard to warships, naval or  is not likely  to be a problem.  usually such vessels have identification marks.  For,  In any case, once  established that such vessels are naval vessels of a state, absolute immunity prevails. In the words of Delupis: i t is indeed a well established rule of international law that warships are immune from legal process, execution or other jurisdictional measures of foreign authorities. This immunity applies to the commander and the crew as well as to the ship itself. Thus as the Institute of International Law phrased in its "Stockholm Rules," "warships cannot form the subject of seizure, arrest or detention by any legal means whatsoever or by any jurisdictional process." These rules codify relevant norms with regard to the immunity of warships as accepted in State practice . . . 129 The problem i s , however, determining vessels owned or operated by  a state and  used only  on government non-commercial service  within the meaning of article 236 above.  Stated differently, the  problem is how to draw a distinction between acts jure imperii and acts jure gestionis.  For as Professor Lauterpacht concludes from a  study of the subject, "in a real sense all acts jure gestionis are acts jure imperii  . . . i n modern conditions, the distinction  between acts jure gestionis and acts jure imperii cannot be placed on a sound logical basis."  130  The problem is further compounded by state legislation on the matter that fails to provide satisfactory definitions as to what constitutes commercial activity. if  This is, however, important, for  the plea of immunity is accepted anytime i t is raised, the  restrictive  theory would cease to have any content and  trading  - 106 relations  as  to  state  owned  ships  would  become impossible.  Legislatures have thus shifted the determination of the issue to the courts. An attempt has been made by the House of Lords to provide guidelines on the matter.  In the Congreso case, the court said (per  Lord Wilberforce) that faced with such a situation: Under the restrictive theory the court has first to characterise the activity into which the defendant state has entered. Having done this, and (assumedly) found i t to be of a commercial, private law, character, i t may take the view that contractual breaches or torts, prima facie fall within the same sphere of activity. It should then be for the defendant state to make a case that the act complained of is outside that sphere, and within that of sovereign action.131 In so doing, the existence of a governmental purpose or motive will not convert what would otherwise be an act jure gestionis or an act of  private law into one done jure imperii.132  j  n  e  court then  stressed: Whether State immunity should be granted or not, the court must considser the whole context in which the claim against the State is made, with a view to deciding whether the relevant act(s) on which the claim is based should, in that context, be considered as fairly within an area of activity, trading or commercial or otherwise of a private law character, in which the State has chosen to engage or whether the relevant act(s) should be considered as having been done outside that area and within the sphere of governmental or sovereign activity. 133 Thus, a polluting vesel confronted in the EEZ of a coastal state cannot just raise a claim of sovereign immunity on the ground of being on government non-commercial service. initially  have to be determined  The matter would  by the municipal courts of the  coastal state with consequent loss of time and expense.134 That in itself is enough to ensure compliance source arrest  pollution and  regulations.  prosecution and  by vessels with the vessel  Above a l l , the immunity is from not  immunity  from 1iabi1ity.135  - 107 Consequently, such vessels, be they warships, naval  auxiliary or  other vessels, or those used on government non-commercial service, are  legally  regulations.  bound  to  observe  the  vessel-source  pollution  Indeed, article 236 provides that states should ensure  that such vessels act in a manner consistent with the Convention. The Convention also provides that states shall be liable in the event of default of compliance with obligations concerning the protection and preservation of the marine environment. Provision of immunity under article 236 state  could,  through  is no licence to pollute.  diplomatic  or  other peaceful  A coastal means, seek  reparation for damage done to its resources or other interests in the EEZ by pollution caused by such vessels.  This should lead flag-  states to ensure that standards are maintained on their vessels. Altogether then, the UNCLOS III regime of enforcement is a big improvement on the pre-existing order of flag-state enforcement. For, apart from the merits in the use of international standards, the tripartite scheme of flag, port, and coastal-state enforcement contains efficient  sufficient checks and system  of  balances to ensure a viable and  enforcement.  The  strengthened flag-state  enforcement regime together with possible sanctions by port-states should ensure that flag-states maintain standards on their vessels. Further, as the Liberian example shows, the flag of convenience problem in the matter of vessel-source pollution is capable of being surmounted. In any case, the flag of convenience vessels constitute only a small percentage of the existing world fleet. Coastal state enforcement is admittedly circumscribed, limited largely to information  gathering and inspections.  However, given  the goodwill and cooperation of port and flag-states, the evidence  - 108 gathered could form the basis for further enforcement action by these  states.  intervention threatening  The Convention  also  provides  for enhanced  rights in the event of maritime casualties in or the zone, as well  as the application  of LDC 72  throughout the 200 mile zone. The  universal nature of port-state enforcement is a welcome  inroad into the enforcement system. check  on flag-state enforcement,  For, apart form acting as a i t should  provide  a viable  alternative basis of enforcement, especially for states that lack the required technical and manpower requirements to police the vast waters of the EEZ.  In addition, inspections  in port,  unlike  inspection on the seas, constitutes minimal interference with vessel navigation. Above a l l , flag-state pre-emption is not an immutable precept that allows flag-states to act arbitrarily or even capriciously. As formulated, the conditions for its invocation are such as to prevent their abusing i t . Similarly, the sovereign immunity provision is no licence for state owned vessels to pollute the zone; i t entails liability in the event of pollution damage. The Convention, i t is submitted, provides an effective means of fighting vessel-source pollution.  - 109 -  FOOTNOTES - CHAPTER III  1.  For background information on the decision to convene UNCLOS III and other related matters, see chapter 1 note 3. The proceedings of the sessions are recorded in "The Third United Nations Conference on the Law of the Sea, Official Records (vols.  1-xiv), (hereinafter referred to as "Off. Rees.").  However, much of the informal proceedings are not recorded. In this section, the works of authors referred to were either participants in or had insight into the proceedings; in particular the following: Gr.T.  Timagenis, "International  Control of Marine Pollution 577 (Dobbs Ferry, N.Y., 1980); Robert Hage, "Canada and the Law of the Sea", 8 Marine Policy 2 (1984); Stevenson and Oxman's accounts on UNCLOS III in 68 A.J .I.L. 1 (1974). 2.  United States: Draft Articles on the Protection of the Marine Environment and Prevention of Marine Pollution. U.N. Doc. A/AC.138/sc. 111/L.40, July 13; see Stevenson and Oxman, ibid., 68 A.J.I.L. 1 (1974).  3.  France: Draft articles concerning the rights exercisable by coastal states for the purpose of preventing marine pollution. UN Doc. A/AC.138/sc.Ill L.49, July 1973.  4.  Japan: Proposal on enforcement measures by coastal states for the purpose of preventing marine pollution. UN Doc. A/AC. 138/sc.111/L.49.  - 110 5.  Canada: Draft articles for a comprehensive marine pollution convention. U.N. Doc. A/AC.138/SC.111/L.28, reproduced in 12 Int'l Leg. Mat. 564 (1973)  6.  Ibid., art. X.  7.  See statement by Mr. Buhl (Denmark), Off. Recs. vol. II, 312.  8.  Discussed in Chap. IV, infra.  9.  Canada, F i j i , Ghana, Guyana, Iceland, India, Iran, Mew Zealand, Philippines and Spain: Draft articles on zonal approach to the preservation of the marine environment.  Ooc.  Conf. 62/C.3/L.6 July 31, 1974. 10.  Ibid., art. 3(b).  11.  Art. VII  3(b) provided:  In respect of ship-generated pollution, the laws and regulations of the coastal State shall conform to internationally agreed rules and standards. Where internationally agreed rules and standards are not in existence or are inadequate to meet special circumstances, coastal states may adopt reasonable and non-discriminatory laws and regulations additional to or more stringent than the relevant internationally agreed rules and standards. However, coastal states may apply stricter design and construction standards to vessels navigating in their zones only in respect of waters where such stricter standards are rendered essential by exceptional hazards to navigation or the special vulnerability of the marine environment, in accordance with accepted scientific criteria. States which adopt measures in accordance this sub-paragraph shall notify the competent international organization without delay, which shall notify all interested states about these measures. 12.  See art. VIII, ibid.  13.  In the words of the Australian delegate: "Australia favoured a zonal approach under which a coastal state would have the right, under  - Ill -  international law, to exercise effective anti- pollution control in a broad zone contiquous to its territorial sea." Specifically on vessel source pollution, his delegation was of the belief that the matter required the fullest co-operation of both the shipping and coastal interests. Further he stressed: The total environment would be best protected i f shipping was subject to internationally agreed regulations between all interested parties which flag states were obliged to enforce on their own vessels. But, in addition, coastal states must remain able to protect their own environment, including that of the economic zone for which they were responsible, and must therefore be able to enforce the internationally agreed regulations. 'Considerations of time, evidence and distance made local enforcement essentiaTT " Existing regulations, however, might not always be adequate: the 1973 London Conference on Marine Pollution had itself recommended that intentional pollution be completely eliminated by the end of the decade, thus recognizing the need for stricter international regulations. Since, however, amendment procedures could be slow, the convention currently being drafted must provide for the right of a coastal State, where necessary, to act on its own. .. For both normal and exceptional cases, a balance must be struck between on the one hand, a coastal state's ability to protect its environment, including that of its economic zone and, on the other, safeguards against unreasonable interference with shipping. Those who gave so much emphasis to the problem of preventing unreasonable interference with shipping and international trade must be prepared to discuss seriously the interest o coastal states in a pollution zone. (Emphasis Added) See statement by Mr. Petherbridge (Australia), Off. Rec II, 314.  - 112 -  14.  See statement by Mr. Warioba (United Republic of Tanzania, Off. Recs. ibid., 320-1. See also statements by New Zealand, ibid., 326; Ecuador 329; Chile 330.  15.  Statement by Mr. Braune (German Democratic Republic), Off. Recs. ibid., 311.  16.  Stevenson and Oxraan, supra 69 A.J. I.L. 16 (1975).  17.  Hage, supra note 1, at 7.  18.  The Liberian delegate said that: as a developing coastal state his country was fully aware of the problems of marine pollution, while appreciating the tremendous relative cost of anti-pollution measures. As a maritime state Liberia recognized the special responsibility of flag states to support and enforce the highest attainable standards for inclusion in multinational agreements to combat marine pollution. Such pollution was no longer a local problem: i t was a global threat, requiring truly international solutions. In dealing with i t , unilateralism would be destructive. Nevertheless, Liberia did not exclude the concept of specially sensitive ecological areas of the oceans requiring special anti- pollution measures, such areas and the special measures to be taken must, however, be determined internationally. .. Liberia was not opposed to the concept of a coastal or port state enforcing jurisdiction over marine pollution offences committed outside its territorial waters; but i t did believe that the primary responsibility for enforcement lay with the flag state, and that coastal or port state jurisdiction should come into play only in cases when the flag state failed to take action within a reasonable time. If the flag state had in fact initiated action, no other action should be permitted unless and until i t had been determined, according to the agreed mechanism for international dispute settlement, that the flag state action was inadeqsuate. See statement by Mr. Collins (Liberia), Off. Recs. ibid., 314.  - 113 19.  The Soviet delegation denied the coastal states any  enforcement measures beyond the territorial seas. It took the view that: the 1973 Convention contained adequate provisions for the prevention of pollution from ships. If they were strictly observed, there would be no need for additional measures to be adopted on a national basis; moreover, they should be incorporated in a future convention in such a way as to form the basis for future work by IMCO and by specialized conferences for the formulation of specific technical rules and recommendations for the prevention of pollution from ships. .. In case of infringement of those rules by foreign vessels, the coastal state should have the right to inform the flag state, or to take appropriate legal or administrative action in accordance with its own legislation. The captain or other officers of the ship should be liable to fines on a non-discriminatory basis. Punishment in the form of deprivation of liberty should be imposed only by the flag State, which would be responsible for informing the coastal state of the measures taken. A future convention should, of course, also lay down more general obligations for all States to ensure the cleanliness of the seas and oceans of the world. In particular, states should have the obligation to ensure that ships flying their flags refrained from causing marine pollution, and to co-operate with other states and competent international organizations in elaborating and applying more progressive standards. See: Statement by Mr. Kovalev (U.S.S.R.) Off. Rees., ibid., 320. The United Kingdom delegation also expressed fears about possible infringegement of navigational rights entailed in increased coastal state jurisdiction.  It said:  The United Kingdom had a very extensive coastline and was much exposed to pollution from what was probably the world's busiest shipping lane, the English Channel and the Dover Straits. It therefore needed to be able to protect its shores and waters against marine pollution, like any other coastal State. Indeed, i t had been one of the  -  114 -  victims of the largest ship-pollution incident ever known. However, preservation of the right of innocent passage was vital to the United Kingdom, with its dependence on long-distance trade. It was essential and quite possible for the new convention to balance the need to prevent and control pollution with the need to preserve freedom of navigation. The Committee must ensure that the steps i t took or the measures i t invited states to take should be clearly designed to that effect. On the specific question of vessel source pollution enforcement the delegation emphasized that: the interests of all nations were involved and an international approach was best because consistency was needed. As the potential danger of vessel-source pollution had been recognized, the willingness of the flag states to make stricter regulations to control such pollution had increased, culminating in the 1973 International Convention, which went a long way towards eliminating deliberate vessel-source pollution. The combination of firm flag state obligation allied with the arrangements in the 1973 Convention, for inspection in port should enable violations to be discovered and punished without creating additional hazards by interventions outside the territorial sea that could not be justified under the International Convention or an extension of i t . . . . The United Kingdom was pleased that the 1973 Convention embodied the idea of especially vulnerable areas and measures, to be decided internationally. National discharge regulations more stringent than those currently required under the 1973 Convention would in practice have much the same effect as special construction requirements, since a ship had to be built and equipped to meet such requirements. See statement by Mr. Simms (United Kingdom) Off. Recs., ibid., 322. The group was formed between the first and second sessions of UNCLOS III on the initiative of Jens Evenson, head of the  - 115 -  Norwegian Delegation.  See TimageniSj op. cit supra note 1, at  585. 22.  Belgium, Bulgaria, Denmark, 6DR, FDR, Greece, Netherlands, Poland and United Kindom of Great Britain and Northern Ireland: Draft articles on the prevention, reduction and control of marine pollution. Doc. A/Conf. 62/6.3/L.24, March 21 1975 (hereinafter referred to as the "nine-power draft").  23.  Introducing the draft on behalf of the sponsors, the United Kingdom delegate said among other things that: With regard to the effective enforcement of international regulations, his delegation had submitted at the second session proposals which had stressed the primary responsibility of the flag state for ensuring the safety of its ships. It had, however, recognized that in the mater of vessel-source pollution many countries wished to introduce greater enforcement powers for states other than the flag state. In the light of those views and of the fact that many ships passing the coast of the United Kingdom did not call at its ports, his delegation had reached the conclusion that additional enforcement powers would be useful, provided there were sufficient safeguards against abuse. In practice, enforcement took the form of surveying the ship and issuing i t with an international certificate which was normally accepted in ports of countries parties to the relevant convention. The convention, however, also provided for inspection in ports of call in cases where there were grounds for suspecting that a ship or its equipment did not correspond with its certificate. ... United Kingdom authorities had found i t difficult to obtain sufficient evidence for successful prosecutions, either at home or abroad. Over the pregvious five years, i t had been possible to link with particular vessels 203 of the 900 spillages occurring off United Kingdom coasts, but there had been only 18 sauccessful prosecutions. It was therefore clear that the main burden of enforcement action should occur before a ship  - 116 -  committed a violation of pollution provisions, and for that reason his delegation had started from the premise that the flag state was initially responsible for its own ships. That position was made clear in article 3 of the draft articles. In his country's experience, there was a good deal of co-operaiton from flag states in the case of ships which had violated regulations inside or outside territorial waters. Vessels did, however, escape prosecution because they passed the coast of the United Kingdom without calling at its ports. In such instances, there would obviously be an advantage in establishing a system of obligations on other states at whose ports such vessels subsequently called. Paragraphs 9-19 of draft aricle 3 therefore proposed a system of port state inspection and en- . forcement, and the right of a coastal state to require information from a passing vessel. The coastal state would then have the option of asking, at its choice, either the flag state or the port state to take action. Draft article 3 imposed an obligation on both to comply with the request from the coastal state. Although such changes in jurisdiction would not be a panacea, he was confident that the system of port state jurisdiction would be of value in the war against pollution by complementing better control by the flag state - provided for in draft article 3, paragraphs 6-8. ... Draft article 3, paragraph 12 proposed that such evidence should be collected at the next port of call, either at the initiative of the port state itself or at the request of a coastal state. Furthermore, in order to assist a coastal state in obtaining the relevant information on which to base such requests, draft article 3, paragraphs 20-22 established its right to require information from any vessel; paragraph 21 imposed an obligation on the flag state to ensure that its ships supplied such information. Some countries were attracted by the idea of empowering coastal states to inspect arrest ships at sea. However, there were practical difficulties in stopping and boarding large ships in a busy sea lane, and any evidence so obtained would be equally available at the next port of call. Draft article 3 built up a system of enforcement from the initial obligation of the flag state, through port state inspection and enforcement, to the right of the coastal state to require  - 117 -  information from passing ships. Throughout, obligations and rights had been matched by suitable safeguards. It would be noted that the article showed a distinct shift in the United Kingdom position, partly as a result of reassessment of its requirements as coastal state and partly in order to meet the position of many other countries. See statement by Sir Roger Jackling (U.K.) Off. Rees., vol. IV, p. 82. 24.  See statement by Mr. Moore (United STates) Off. Rees., ibid., 86.  25. The U.S.S.R. delegate however added that; in order to reach agreement, i t was prepared to accept the proposal in the draft articles for an amplification of that principle by a limited grant of competence to the coastal state over any foreign ship coming into its ports. An essential condition should be the establishment of safeguards against the abuse of power by the port state and the avoidance of unnecessary international complications. In particular the articles should include the flag state's primary right to take proceedings within a fixed period against any persons in breach of the rules; the imposition of only monetary fines for such breaches; the immediate release of the ship on paying a deposit or giving some other guarantee for payment of the fine and full compensation for any damage caused by unjustified measures taken against the ship. ... In that connexion, his delegation had some doubts about article 3, paragraphs 11 and 12 of which enabled the port state to take proceedings against a foreign ship even when i t had committed a breach of international rules many hundreds of miles from the coast of any state. ... Statement by Mr. Tikhnov (U.S.S.R.), Off. Rees., ibid., 87. 26. See statement by Mr. Legault (Canada) Off. Rees., ibid., 86. 27.  Ibid.  - 118 28.  See statement by Mr. Abd Rabon (Egypt) Off. Recs., ibid., 91. See also statements by Indonesia, New Zealand and Iran, ibid., 90.  29.  See Stevenson and Oxman, supra 69 A.J.I.L. (1975), at 788.  30.  See Off. Recs., Vol. IV, 26.  31.  Informal Single Negotiating Texts. Doc. A/Conf./62/W.P. 8, May 7, 1975, reproduced in 14 Int'l Leg. Mat. 682 (1975)  32.  See Timagenis, op. cit  supra note 1, at 589.  33. Arts 4, 5 and 6 provide: 4. Where internationally agreed rules and standards are not in existence or are inadequate to meet special circumstances and where the coastal state has reasonable grounds for believing that a particular area of the economic zone is an area where, for recognized technical reasons in relation to its oceanographical and ecological conditions its utilization, and the particular character of its traffic, the adoption of special mandatory measures for the prevention of pollution from vessels is required, the coastal state may apply to the competent international organization for the area to be recognized as a "special area". Any such application shall be supported by scientific and technical evidence and shall, where appropriate, include plans for establishing sufficient and suitable land-based reception facilities. 5. Nothing in this Article shall be deemed to affect the establishment by the coastal state of appropriate non-discriminatory laws and regulations for the protection of the marine environment in areas within the economic zone, where particularly severe climatic conditions create obstructions or exceptional hazards to navigation, and where pollution of the marine environment, according to accepted scientific criteria, could cause major harm to or irreversible disturbance of the ecological balance. 6. Laws and regulations established pursuant to the internationally agreed rules and standards referred to in paragraph 4 of this Article, shall  - 119 not become applicable in relation to foreign vessels until six months after they have been notified to the competent international organization. 34. Hage, supra note 1, at 8. 35.  See M'Gonigle and Zacher, Pollution Politics and International Law 246 (Berkeley, 1979).  36.  See Timagenis, op. cit supra note 1, at 589.  37. Doc. A/Conf.62/WP.8 Rev. I. 38.  16 Int'l Leg. Mat. 1108 (1977).  39. See Memorandum by the President of the Conference, Doc. A/Conf. 62/WP. 10, July 22 1977, Off. Rees., Vol. VIII, p. 65. 40. Timagenis, op. cit , supra, note 1. at 593. 41.  Statement by Mr. Vallarta (Mexico), speaking as chairman of the Informal Meetings on Protection and Preservation of the Marine Environment.  42.  Off. Rees., (seventh session), Vol. IX, p. 152.  See statement by Mr. De Iacharriere (France). Off. Rees., Vol. IX, p. 144.  43.  See Chairman's report to the plenary; Off. Rees., Vol. X, p. 96.  44.  Statement by Mr. De Iacharriere supra note 42.  45. Article 221 provides: Nothing in this Part shall prejudice the right 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 or acts relating to such a casualty, which may reasonably  - 120 be expected to result in major harmful consequences. For the purpose of this article, "maritime casualty" means a collision of vessels, stranding or other incident of navigation, or other occurrence on board a vessel or external to i t resulting in material damage or imminent threat of material damage to a vessel or cargo. 46.  Statement by Committee III Chairman; Off. Recs. VOL. X, p. 97.  47.  Timagenis, op. cit. supra note 1, at 596.  48.  See Committee III Chairman's report, Off. Recs., VOL X p. 97.  49.  See Hage, supra note 1, at 7.  50.  On the Convention and Vessel-source pollution control, see L. Herman, "Flags of Convenience - New Dimensions to an Old Problem," 24 McGill L.J., 1 (1978), esp. 15-25; J.P.A. Bernhardt, "A Schematic Analysis of vessel-source Pollution: Prescriptive and Enforcement Regimes in the Law of the Sea Conference," 20 Va. J. Int'l L. 265 (1979); Ebere Osieke, "Flags of Convenience Vessels:  Recent Developments", 73  A.J.I.L. 604 (1979); R.M. M'Gonigle and M. Zacher, op. cit. supra  note 35, Chaps. VI & VIII; A.H.E. Popp, "Recent  Developments in Tanker Control in International Law," 18 Can. Yr. Bk. Int'l 3 (1980); Gr. T. Timagenis, op. cit. supra note 1, at 609; Ian J. Booth, "International Ship Pollution Law: Recent Developments at UNCLOS," 4 Marine Policy 217 (1980); Sally A. Meese, "When Jurisdictional Interests Collide:  International, Domestic and State Efforts to Prevent  Vessel-source Oil Pollution," Ocean Dev. and Int'l 71 (1982); W. Van Reenen, "Rules of Reference in the New Convention on  - 121 the Law of the Sea, in Particular in Connection with the Pollution of the Sea by oil from Tankers," 12 Neth. Yr. Bk. Int'l 3 (1981); Ted L. McDorman (et al.), The Marine Environment and the Caracas Convention on the Law of the Sea 30 (Halifax, 1981). 51.  See Convention, arts. 211, 217, 218, 220.  52.  See Meese, supra note 50, at 89.  53.  See for example, J.D. Kingham and D.M. McRae, "Competent International Organisations and the Law of the Sea," 3 Marine Policy 106 (1979); Booth, Van Reenen, supra note 50; Timagenis, op.cit. supra note 1 at 610.  54.  A convention does not create either obligations or rights for a third state without its consent. See art. 34, Vienna Convention on the Law of Treaties, reproduced in 63 A.J.I.L. 875 (1969). On this principle in relation to UNCLOS III especially on international straits, see Luke T. Lee, "The Law of the Sea Convention and Third States," 77 A.J.I.L. 541 (1983).  55.  North Sea Continental Shelf Cases (Fed. Rep, of GermanyDenmark; Fed. Rep, of Germany/Netherlands), [1969] I.C.J. Rep. 4.  56.  Ibid., 25.  57.  See for example L.D. Guruswamy, "Environmental Protection and the United Nations Convention on the Law of the Sea," 4 Lloyds Mar. & Comm. L. Q. 705 (1983); Popp, supra note 50. is discussed further below.  58.  See Chapter II.  This view  - 122 59.  Under article 35 of the Vienna Convention: An obligation arises for a third state from a provision of a treaty i f the parties to the treaty intend the provision to be the means of establishing the obligation and the third state expressly accepts that obligation in writing. Thus a state party that ratifies the Convention, by the very act of ratification, would be "expressly" accepting the vessel source pollution obligations under the IMO rules. See R.R. Churchill, "The role of IMCO in Combating Marine Pollution," in Douglas J. (et al. eds.), The Impact of Marine Pollution 73 (London, 1980).  60.  Quoted from W. Van Reneen, supra note 50, at 21.  61.  Churchill, supra note 59.  62.  Ibid., 84.  The statement is in relation to the ICNT's texts  on the subject.  These, as seen above, are virtually the same  as the Convention's texts. 63.  W. Van Reneen, supra note 50, at 15.  64.  Ibid., 38-9.  65.  To illustrate this point, the next chapter is devoted to an examination of existing Canadian vessel source legislation in the light of UNCLOS III.  66.  See supra note 23.  67.  See Convention, arts. 217, 228.  68.  Bernhardt, supra note 50, at 298.  69.  See on this Osieke; Herman; Popp; supra note 50.  70.  See Boleslaw Adam Boczek, Flags of Convenience 292 (Harvard, 1962).  - 1 2 3 -  71.  See art. 5 and 6 Geneva Convention on the High Seas; arts. 91, 92, U.N. Convention on the Law of the Sea.  72.  Chap. II ante.  73.  See also Popp, supra note 50, at 9.  74.  Art. 217 (8).  75.  See M'Gonigle and Zacher, op. cit supra note 35, at 336.  76.  See for example M'Gonigle and Zacher, ibid 244; Osieke supra note 50 at 609; UNCLOS III proceedings.  77.  See Louis Henkin, How Nations Behave 31 (New fork, 1968).  78.  Ibid.,42.  79.  Ibid., 48.  80.  The Convention on the High Seas entered into force on Sep. 30, 1962. As of January 1963, there were only 25 signatories. Flags of Convenience states like Liberia and Panama did not sign. As of Jan. 1, 1983 there were only 57 signatories (see "Treaties in Force" (1983), compiled by the Office of the Legal Advisor, U.S. Dept. of State. The Convention, as observed, was signed by a record 119 states. So far 10 states including Namibia have ratified i t . Guruswamy, supra note 57, at 716.  82.  For a useful discussion on this, see Bernado Zuleta, "The Law of the Sea After Montego Bay/ 20 San Diego L. Rev. 475 (1983).  - 124 83.  For example the United States, the United Kingdom, The Federal Republic of Germany, Netherlands and Italy.  See IMO Doc.  Misc. (84)2. 84.  If the "package deal" view of the convention prevails, then non parties may not be able to rely on these provisions. MARPOL 73/78's technical standards would then have to be implemented by these states under the old flag-state regime, which as observed, is ineffective.  MARPOL 73/78 provides for  inspections in port, however, unlike the Convention, i t does not provide for powers of prosecution (see discussion on this bel ow). 85.  See on this, David W. Abecassis, The Law and Practice Relating to Oil Pollution from Ships 56 (London, 1978).  86.  See "O.E.C.D. Study on Flags of Convenience", 4 J. Mar. L. & Comm. 231 (1973).  87.  Eurostat (1977), quoted from UNEP Report, The World Environment 1972-82, p. 515.  88.  Although the Convention grants powers of prosecution to both coastal and port states, these are made subject to the "Safeguard" provisions of the Convention.  This is discussed  below. 89.  Art. 25.  90.  Art. 218 provides, inter alia, that: 1. When a vessel is voluntarily within a port or at an off-shore terminal of a State, that State may undertake investigations and, where the evidence so warrants, institute proceedings in respect of any discharge from that vessel outside  - 125 the internal waters, territorial sea or exclusive economic zone of that State in violation of applicable international rules and standards established through the competent international organization or general diplomatic conference. 2. No proceedings pursuant to paragraph 1 shall be instituted in respect of a discharge violation in the internal waters, territorial sea or exclusive economic zone of another State unless requested by that State, the flag state, or a state damaged or threatened by the discharge violation, or unless the violation has caused or is likely to cause pollution in the internal waters, territorial sea or exclusive economic zone of the state instituting the proceedings. On port-state jurisdiction, see Richard A. Legatski, "Port State Jurisdiction of Vessel-Source Marine Pollution,' 2 Harv. Envt'l L. Rev. 448 (1977); Bernhardt, supra note 50, at 284. 91. Art. 226. 92.  On this, see M'Gonigle and Zacher, op. cit. supra note 35, at 336.  93. Art. 226. 94.  Ibid.  95.  Ibid.  96.  Bernhardt, supra  97.  See Chapter II, ante.  98.  Under article 192, states have the obligation to protect and  note 50, at 286.  preserve the marine environment.  Art. 194 also provides  that: 1. States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall  - 126 endeavour to harmonize their policies in this connection. 2. States shall take all measures necessary to ensure that activities under their jurisdction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention. 3. The measures taken pursuant to this Part shall deal with all sources of pollution of the marine environment. These measures shall include, inter alia, those designed to minimize to the fullest possible extent: (b) Pollution from Vessels, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional discharges, and regulating the design, construction, equipment, operation and manning of vessels; (c) pollution from installations and devices used in exploration or exploitation of the natural resources of the sea-bed and subsoil, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices; (d) pollution from other installations and devices operating in the marine environment, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices. (4) In taking measures to prevent, reduce or control pollution of the marine environment, States shall refrain from unjustifiable interference with activities carried out by other states in the exercise of their rights and in pursuance of their duties in conformity with this Convention. (5) The measures taken in accordance with this Part shall include those necessary to protect and preserve rare or fragile ecosystems as well as the  - 127 habitat of depleted, threatened or endangered species and other forms of marine life. 99.  See Ted L. McDorman (et al.), op. cit. supra note 50, at 33.  100.  Legatski, supra note 90, at 467.  101.  Chap. 1, ante.  102.  Chap II, ante.  103.  Ibid.  104.  These arrangements are as a result of the Stockholm Conference on the Environment and the deliberations at UNCLOS III. The Agreements include the Bonn Agreement for Cooperation in Dealing with the Pollution of the North Sea by Oil (Bonn Agreement), the Oslo Convention for the Prevention of Pollution by Dumping from Ship and Aircraft (Oslo Convention), the Paris Covnention for the Prevention of Marine Pollution from Land-based Sources (Paris Convention) and the Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention). On these, see Sonia Boehmer-Christiansen, "Marine Pollution control in Europe: regional approaches, 1972-80," 8 Marine Policy 44 (1984). The discussion on the Helsinki Convention and the Bonn Agreement dealing with marine polution by oil is based on this article.  105.  Ibid. 45.  106. The 14 signatories are Belgium, Denmark, Finland, France, the Federal Republic of Germany, Greece, Ireland, Italy, the  - 128 Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom. These states have committed themselves to inspect by July 1, 1985, 25 per cent of the estimated number of foreign flag merchant vessels that enter their respective ports each year.  Inspections are carried out on the basis of six IMO  Conventions and protocols, and one convention (No. 147) adopted by the International Labour Organization (see Chap. 2).  On this, see 4 IMO News 16 (1983).  107.  Ibid.  108.  See Chap. IV, infra.  109. McDorman, for example, has stated: "Port state enforcement has emerged at UNCLOS III as a compromise between flag state and coastal state enforcement. Although promising much, i t adds l i t t l e to ensure enforcement of international vessel-source pollution regulations."  See Ted L. McDorman, "National  legislation and Convention obligations: Canadian vessel-source pollution law," 7 Marine Policy 302 (1983), at 308. This certainly is an understatement in view of the European experience above. 110.  It is estimated that 96 per cent of vessel traffic in the United States waters call at U.S. ports. See Meese, supra note 50, at 292.  Similarly, majority of the vessels  navigating through Canadian waters end up in Canadian ports. See M'Gonigle and Zacher, op. c i t supra note 35,at 234. 111.  Ibid., 332.  - 129 112.  See Chap. IV, infra.  113.  Meese, supra note 50, at 92.  114.  Art. 226.  115.  Art. 220 (5).  116.  Under art. 111(2), the right of hot pursuit shall apply mutatis mutandis to violations in the EEZ.  117.  This view might sound revolutionary, but i t stems from the rights which coastal states have over living resources in the EEZ.  Even though these states are to allow other states to  fish in the zone under stated conditions, this discretionary power is not subject to review. Besides, fisheries disputes are not covered by the compulsory dispute settlement procedure (under Part XV of the Convention).  A coastal state could  couch its anti-pollution actions in the form of resource conservation, thereby excluding the applicability of the compulsory dispute settlement procedure. See Shigeru Oda, "Fisheries under the United Nations Convention on the Law of the Sea", 77 A. J.I.L. 739 (1983), for a discussion of the Convention in relation to Fisheries. 118.  See on this Booth, supra note 1, at 225.  119.  Art. 216 provides, inter alia that 1. Laws and regulations adopted in accordance with this Convention and applicable international rules and standards established through competent international organizations or diplomatic conference for the prevention, reduction and  - 130 control of pollution of the marine environment by dumping shall be enforced: (a) by the coastal state with regard to dumping within its territorial sea or its exclusive economic zone or onto its continental shelf; (emphasis added) Art. 211(6) and (7) provide that: 6. (a) Where the international rules and standards are inadequate to meet special circumstances and coastal states have reasonable grounds for believing that a particular, clearly defined area of their respective exclusive economic zones is an area where the adoption of special mandatory measures for the prevention of pollution from vessels is required for recognized technical reasons in relation to its oceanographical and ecological conditions, as well as its utilization or the protection of its resources and the particular character of its traffic, the coastal states, after appropriate consultations through the competent international organization with any other states concerned, may, for that area, direct a communication to that organization, submitting scientific and technical evidence in support and information on necessary reception facilities. Within 12 months after receiving such a communication, the organization shall determine whether the conditions in that area correspond to the requirements set out above. If the organization so determines, the coastal states may, for that area, adopt laws and regulations for the prevention, reduction and control of pollution from vessels implementing such international rules and standards or navigational practices as are made applicable, throught the organization, for special areas. These laws and regulations shall not become applicable to foreign vessels until 15 months after the submission of the communication to the organization. (b) The coastal States shall publish the limits of any such particular, clearly defined area. (c) If the coastal states intend to adopt additional laws and regulations for the same area for the prevention, reduction and control of pollution from vessels, they shall, when submitting the aforesaid communication, at the same time notify the organization thereof. Such additional laws and regulations may relate to discharges or  - 131 navigational practices but shall not require foreign vessels to observe design, construction, manning or equipment standards other than generally accepted international rules and standards; they shall become applicable to foreign vessels 15 months after the submission of the communication to the organization, provided that the organization agrees within 12 months after the submission of the communication 7. The international rules and standards referred to in this article should include inter alia those relating to prompt notification to coastal states, whose coastline or related interests may be affected by incidents, including maritime casualties, which involve discharges or probability of discharges. 121.  Abecassis, op. cit, supra note 85, at 24.  122.  Arts. 223-33. See on this, Timagenis, op. cit supra note 1, at 622.  123.  Ibid., 623.  124.  See Abecassis, op. cit supra note 85, at 81.  125.  See for example art. VII (4) of LDC 72; art. 3(3) of MARPOL 73/78. See: T.K. Thommen, Legal Status of Government Merchant Ships (the Hague, 1962); Lauterpacht, "The problem of jurisdictional immunities of foreign States," 28 B.Y.B. l.L 220 (1951); H.L. Molott and M.L. Jewett, "The State immunity Act of Canada", 20 Can. Yr. Bk. Int'L. 79 (1982); Ingrid Delupis, "Foreign Warships and Immunity from Espionage," 78 A.J.I.L. 53 (1984); I Congreso del Partido, [1981] 2 All E.R. 1064 (I Congreso).  126.  Thommen, ibid., 27.  127.  [1938] A.C. 485.  128.  Ibid., 490.  129.  Delupis, supra note 125, at 55.  -  1 3 2  -  130.  Lauterpacht, supra note 125, at 224.  131.  I Congreso, supra note 125, at  132.  Ibid., 1074.  133.  Ibid. The Congreso judgment is quite significant coming as i t  1072.  ;  does, from the highest court of England, on an issue in which English law is said to be in accordance with International law (judgment, ibid., 1072). Besides, the judgment was delivered with due consideration "to foreign courts of authority and writings of reputed publicists."  It is thus a source of  International law within the meaning of article 38(1)(b) and (d) of the I.C.J, statute. See Brown?ie, Basic Documents in International Law 276 (Oxford, 1972). 134.  In the event of disagreement with the coastal state's action by the flag state, the matter would have to be resolved under the compulsory dispute settlement procedure (Part XV) of the Convention.  135.  See Brierly, The Law of Nations 267 (Waldock ed.) (Oxford, 1963).  - 133 CHAPTER IV IMPACT OF UNCLOS III ON CANADIAN VESSEL-SOURCE POLLUTION LEGISLATION  In the preceding chapter, the point was made that states that ratify the Convention would have to take steps to ensure that their enactments on vessel-source pollution conform to the Convention's prescribed  standards.  This  point  requires  clarification.  An  enactment which is inconsistent with the Convention's texts may be perfectly valid under the municipal it  laws of the states concerned;  is at the international level that problems are encountered.  States'attitudes towards international norms are determined largely by  the  standing  of  international  law  in the  legal  system  concerned.^ Under English law and for those states like Canada that adhere to a large extent to the English tradition on the subject,domestic statutes invariably prevail over international norms in accordance with the doctrine of parliamentary  sovereignty.  Thus in Mortensen  v.  Peters,2 a conviction of a Danish captain of a Norwegian ship  for  fishing  in the Moray Firth  argument that the  conviction was  was  upheld, despite counsel's  contrary  to international law  because i t involved a claim to jurisdiction over a foreign ship on the high seas. Said the court: It is a trite observation that there is no such thing as a standard international law extraneous to the domestic law of a Kingdom, to which appeal may be made. International Law, so far as this court is concerned, is the body of doctrine regarding the international rights and duties of States which has been adopted and made part of the law of Scotland...3  - 134 -  In these states, customary rules would be considered as part of the law of the land and enforced as such where such rules are not inconsistent with Acts of Parliament.  4  With regard to conventions,  however, the courts of these states would enforce them only where these  conventions  legislation.  have  been  implemented  There could be exceptions  treaties or sovereign rights.  or sanctioned by  in respect of executed  In Francis v. The Queen,5 the Supreme  Court of Canada (per Rand J.) said: A treaty is primarily an executive act establishing relationships between what are recognized as two or more independent states acting in sovereign capacities; but as will be seen, i t s implementation may call for both legislative and judicial action. Speaking generally, provisions that give recognition to incidents of sovereignty or deal with matters in exclusively sovereign aspects, do not require legislative confirmation: for example, the recognition of independence, the establishments of boundaries and, in a treaty of peace, the transfer of sovereignty over property, are deemed executed and the treaty becomes the muniment or evidence of the political or proprietary title . . . Except as to diplomatic status and certain immunities and to beligerent rights, treaty provisions affecting matters within the scope of municipal law, that is, which purport to change existing law or restrict the future action of the Legislature, including, under our Constitution, the participation of the Crown, and in the absence of a constitutional provision declaring the treaty itself to be law of the state, as in the United States, must be supplemented by statutory action. 6  Hence, since the Convention on the Law of the Sea does not fall within any of the above exceptions and would affect the scope of municipal  law, there  would be the requirement  of domestic  legislation in these states to make i t binding. On  the other hand, in other  systems, conventions  jurisdictions with civil law  are usually given precedence over domestic  legislation; at least over prior, i f not later legislation.  Some of  - 135 these states, such as West Germany, also give customary law this status.  In these states, therefore, assuming they have ratified the  Convention and i t is in force, i t could be invoked so as to oust an inconsistent domestic law. Between the 'nationalist' approach of the English courts and the 'internationalism' of the German courts, is the position of a third group of states; these adopt a position between those of the first two groups of states.  In the United States for example,  treaties, i f they are self-executing, overrule inconsistent prior, but not later, statutes.  For, under article 6 of the United States  Constitution, "all treaties made or which shall be made, under the Authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in  the Constitution  or laws of any state to the contrary not  withstanding."  7  It is, however, the usual practice of courts of all states to construe domestic statutes so as not to conflict with international law.  Thus in Post Office v. Estuary Radio Ltd.,8 the English Court  of Appeal held that an ambiguity in the order defining British territorial  waters should be resolved  so as to accord with the  provisions of the Territorial Sea Convention. At the international level, however, international law, (both customary  and conventional) prevail  over  domestic  legislation.  Pacta sunt servanda is the rule, and a state may not invoke domestic legislation obligations.  as an excuse for non-fulfilment  of its conventional  This point was emphasized by the International Law  Commission (ILC) in its article 13 of the Draft Declaration on Rights and Duties of States: Every State has the duty to carry out in good faith its obligations arising from treaties and  - 136 other sources of international law, and i t may not invoke provisions in i t s Constitution or its laws as an excuse for failure to perform its duty.9 The rule now is codified under articles 26 and 27 of the Vienna Convention on the Law of Treaties. 10 Canada has signed, but not yet ratified the Law of the Sea Convention.  As a signatory, Canada is obliged to refrain from acts  which would defeat the object and purpose of the Convention.H  This  requirement does not appear to impose an obligation on Canada to alter or review its legislation Convention's  texts.12  to ensure  conformity with the  Assuming Canada were to ratify  the  Convention, however, i t would have to ensure that its vessel-source pollution laws conform to the Convention's text. Canada has not yet claimed an EEZ, i t has declared 200 mile Fishery Zones (EFZ).13 The evolution of the present Canadian fishery jurisdiction will now be examined.  Evolution of Canadian EFZ  14  Canada has one of the longest coastlines in the world; i t is bordered by three oceans  and has a long history rooted in the  maritime traditions of Western Europe; i t therefore has an interest in  the rules  pollution  governing the oceans.  flows naturally  Its concern with marine  from the possession of extensive and  actively used coastal areas and the need to protect fisheries and other vital resources and amenities. This concern is heightened by large  areas  in the Arctic,  whose severe  climate and  fragile  ecosystem raise the likelihood of severe pollution damage. Canadian concerns over fisheries, however, goes back much farther than its  - 137 marine environmental  interests,  although  the two are directly  related. In spite of its large coastal fisheries, Canada did not join in the expansion  of state fishery jurisdiction in the wake of the  Truman Proclamation.  Its first step in that direction was taken in  1956 when i t proposed a retention of the three-mile territorial sea but the addition of nine mile fishing zone to the ILC which was then working on preparatory Conference  documents for the First  on the Law of the Sea (UNCLOS I).  reiterated at the Conference  in 1958.  United Nations  This position was  It, however, switched its  support to a 'six-plus-six formula" (six mile territorial sea and six mile fishery zone) as the one most likely to command a majority support.  This position was maintained  at UNCLOS II, where the  formula failed to gain acceptance by a narrow margin.  Subsequently,  Canada mounted a private campaign in pursuit of a sub-global treaty based on the "six-plus-six" formula.  Even though this gained the  support of some forty states, i t failed owing to the United States refusal to back i t .  Canada then turned to unilateral action in  pursuit of its goal. In 1964, Canada enacted the Territorial Seas and Fishing Zone Act  15  which provided for a three-mile territorial sea plus a nine  mile fishery zone; i t also authorized the use of straight baselines. The introduction of baselines had the effect of greatly increasing the  area  of Canadian  internal this  waters.  legislation.  The maritime  states  understandably  opposed  In any event, the  implementation  of the legislation was so weak that i t had very  little impact on the level of foreign fishing off Canadian coasts.  - 138 In 1970, by amendment to the Territorial Seas and Fishing Zones Act, Canada extended its territorial sea to 12 miles.*  6  Although a  unilateral act, more than 60 states had already done so; i t was thus compatible with international standards.  At the same time, Canada  enacted the Arctic Waters Pollution Prevention Act (A.W.P.P.A.) which established a pollution control zone in areas north of the 60th parallel and extending from the coast 100 miles out to sea.  17  With the convening of UNCLOS III, Canada focused its attention on this international forum as a means of advancing its maritime interests.  This began, i t may be recalled, in the Sea-bed Committee  where Canada championed a functional/custodian cause for coastal States with regard to issues governing living resources in return for their management and conservation. This approach was in tune with the then evolving EEZ which, as noted, had broad acceptance by 1974.18  Canada also conducted an energetic campaign on the salmon  question and secured the inclusion of article 66 on salmon in the Convention.  This article puts a virtual ban on high seas salmon  fishing and gives recognition to the fact that the responsibility for the conservation and management of salmon stocks rests with the state where the salmon originate. In the mid-70's, domestic pressure for the implementation of a 200 mile zone in relation to fisheries grew as foreign fleets continued to undermine the viability of coastal fishermen.  Canada  thus joined in the implementation of the 200 mile fishery zone along the lines more or less agreed on at UNCLOS III in early 1977.1  9  This action was accompanied by a series of bilateral negotiations with  such  states  as Norway, Poland, the Soviet Union, Spain,  Portugal and France.  These states had traditionally fished in what  - 139 was to become the Canadian EFZ.  Agreements were arrived at under  which these states were granted access to the catch that Canadians did not take in the 200 mile-zone in return for those states' acceptance  of Canadian extension  of jurisdiction.20  These  agreements were arrived at with little difficulty in view of the favourable international trend towards coastal states' rights to the living resources of the sea within 200 miles of their coasts.21 The evolution of the Canadian EFZ may thus be seen as part of the general shift in favour of increased coastal state power and authority over the oceans, a process that was greatly accelerated by UNCLOS III.  The improved Canadian access to fisheries consequent on  the declaration of the EFZ has resulted in an industry whose product value is estimated at some two billion dollars. become the world's largest exporter of f i s h .  By 1981, Canada had  22  Pollution of the oceans was important in the evolution of the Canadian 200 miles fisheries zone.  The concern for fisheries  brought with i t a concomitant interest in preserving the quality of the marine environment and ensuring that Canada's coastline was not marred by oil pollution. significant: the trial  In this, two main incidents were quite  run through the Northwest passage of the  American vessel, the S.S. Manhattan, to determine the prospect of the use of the passage as a commercial route; and the sinking of the tanker Arrow off the coast of Nova Scotia.  These incidents prompted  the passage of the two major Canadian pieces of legislation dealing with  vessel-source  pollution:23  the  Arctic  Waters  Pollution  Prevention Act (A.W.P.P.A.)24 and Part XX of the Canada Shipping Act (C.S.A.).  - 140 The Arctic Waters Pollution Prevention Act The trial passage of the S.S. Manhattan aroused deep Canadian concern;  in particular about  its implications  for Canadian  sovereignty over the Arctic well as about pollution damage to the fragile Arctic environent as a result of such vessel traffic. Rather than legislate a direct sovereignty claim over the zone, the Canadian  government adopted  the pollution control  approach by  unanimously enacting A.W.P.P.A. This Act and the regulations made thereunder, i t may be recalled,25 established a 100 nautical mile pollution control zone in waters adjacent north of the 60th parallel. discharge  to the Canadian coast  The Act put a complete ban on the  of wastes including oil in these waters subject to  exceptions  granted  by an order-in-council; i t makes violators  strictly liable for illegal discharges and the cost of clean up;26 and  i t requires  vessels  evidence of financial liability.  ability  to provide  to the extent  satisfactorily  of their potential  In addition, A.W.P.P.A. provides for the construction,  design, and operation shipping  in the area  of vessels within  safety control  zones  a framework of sixteen  (S.S.C.A.).  In the absence of  contrary evidence, Arctic Waters Pollution Prevention Certificates (A.W. P.P.C.) issued  by the Department  of Transport  annually,  constitutes proof of compliance with these regulatory requirements. Enforcement of the Act is the responsibility of pollution prevention officers who possess extensive power under the Act. They can revoke an A.W.P.P.C. if an inspection of a vessel shows that A.W.P.P.A.  requirements are not being met or there is a possible  danger of an illegal discharge;  prohibit sub-standard vessels from  navigating in the Arctic waters; order any ship to participate in a  - 141 clean-up operation in the event of spills; board for inspection any vessel within the zone;  order a vessel out of the zone, or even  seize the vessel and its cargo, although  the latter action is  subject to confirmation by an order in council. The Act was passed at a time when pollution control on the high seas was one of flag-state competence.  It was thus viewed by many  states as contrary to international law. The opposition to i t came mainly from the United States which viewed the action, among other things, as an infringement of the freedom of the high seas and one capable of being a precedent in other parts of the world for other unilateral infringement of the freedomm of the seas. an international  conference  subject, or failing determination  to agree on rules dealing with the  that, a submission  by the ICJ.  It called for  27  of the dispute for  Canada responded  28  with arguments  ranging from self-defence to its being the custodian of the seas off its coast on behalf of the international community.  In its view,  A.W.P.P.A. was a reflection of "the determination of the Canadian Government to fulfill its responsibilities to its own people and to the international community to preserve the ecological balance of Canada and to protect and conserve marine environment."  29  the living resources of its  It refused to submit the issue to the ICJ  having modified its declaration under article 36 of the Court's statute to decline the Tatter's compulsory jurisdiction with regard to  issues arising out of its anti-pollution measures.30 Canada promised to seek internationally  accepted  Arctic navigation within the framework of A.W.P.P.A. was,  rules for UNCLOS III  thus, an appropriate forum for Canada to seek international  - 142 endorsement for its action.  Indeed, the 1970 General Assembly  resolution convening UNCLOS III was introduced by the Canadian head of delegation, Alan Beesley.  Through intense and skilful diplomatic  negotiations at UNCLOS III, Canada secured the inclusion of article 234  of the Convention which is widely  A.W.P.P.A.31 "Ice-covered  acclaimed  as legitimizing  Section 8, article 234, of the Convention entitled areas"-provides:  Coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence. With the inclusion of this article, not only is A.W.P.P.A. legitimized  under  international  addition, its extension opposed  law; the article  throughout the entire 200 mile zone, as  to the original  100 miles.  This  Convention's sovereign immunity provision. x  the  permits, in  is subject  to  the  32  Other jurists, however, hold a different view.  They concede  fact that since article 234 was drafted with  the Canadian  legislation in mind, i t could be understood to support the Arctic waters  legislation.  At the same time, they  point  out that  significant interpretative problems exist with article 234, and this might affect the applicable legislative regime in Arctic waters.33 Professor McRae and Mr. Goundrey34  a r e  of the view that article 234  is susceptible to two interpretations: a broad interpretation under which  i t would be consistent with  A.W.P.P.A. and a narrow  - 143 interpretation which limits the permissible scope of the article. After an examination of the issue, they conclude that even though article 234 has been hailed as legitimizing A.W.P.P.A., the matter is not free from doubt.  Under the broad interpretation of the  article, coastal states have the greatest amount of freedom; they can legislate and enforce anti-pollution measures without reference to the usual rules applicable to the jurisdiction of coastal states within the EEZ.  Under this interpretation therefore, i t would be  irrelevant whether the waters concerned constituted an international strait.  They argue, however, that under the narrow interpretation  of article 234, the legislative and enforcement authority of the coastal  state  is confined  to those matters  that  are rendered  necessary by the conditions  referred to in the article such as  severe  and the presence  climatic  conditions  obstructions or exceptional  of ice creating  hazards to navigation.  To the extent  that the marine pollution sought to be prevented or controlled does not result from these conditions, so the argument goes, then the normal  rules applicable to the EEZ would apply, including where  appropriate, those applicable to international straits.35 The view of these jurists is based largely on their analysis of the extent of permissible prescriptive and enforcement powers of the coastal states in the territorial seas, vis-a-vis the EEZ.  As they  point out, i t is unlikely that i t was ever intended that the coastal state would have greater  power to regulate  and control marine  pollution within its EEZ than i t would have within its territorial sea.36 The validity of the above statement is unassailable. however, submitted that i t is inapplicable to article 234. provision must be viewed as existing on its own.  It is, This  It is the end  - 144 product  of  Canadian  international  endorsement  i n t e r p r e t a t i o n must, of  negotiations for  of  A.W.P.P.A.,  therefore,  well  t h e EEZ.  This  III  a  to  obtain  provision  whose  not be encumbered by c o n s i d e r a t i o n s  the e x t e n t or p r e s c r i p t i v e powers  vis  UNCLOS  i n the t e r r i t o r i a l seas v i s - a -  stand i s based on the h i s t o r y o f a r t i c l e 234 as  as i t s l o c a t i o n i n the e n v i r o n m e n t a l  p r o v i s i o n s e c t i o n s of the  Convention. Article "special  it  measure"  subsequent Single  234,  "zonal  (article  legislate  special  Text  measures  e x c e p t i o n a l hazards  gave  for  the  right  in  "areas  of  climatic  conditions  to n a v i g a t i o n . "  its  recognition  special  was thus  wording  provided  so  of  vague  under  to,  what  eventually  by  coastal  simply  states  the economic create  and the  zone  to  where  obstructions  or  The p r o v i s i o n was f e l t to be so that  many  maritime  states  A specific Arctic  a r t i c l e 43 o f the RSNT under a  heading " i c e - c o v e r e d a r e a s " .  addition  i n the  The Informal  to t h i s  e x p r e s s e d concern l e s t i t be a p p l i e d t o o f r e e l y . exception  genesis  a t the 1973 IMCO c o n f e r e n c e ,  (SNT)  20(5))  severe  and  had i t s  approach" p r o v i s i o n s o f UNCLOS I I I .  providing  permissive  recalled,37  controversy  Negotiating  particularly  may be  T h i s was d i s t i n c t f r o m , and i n  became  article  211(6)(a)  of  the  C o n v e n t i o n where such s p e c i a l measures t a k e n must be endorsed by the IMO. The'Mce-covered  areas"  provision  of  the Convention  remained  unchanged under the ICNT and appears i n the p r e s e n t form as a r t i c l e 234.  Thus,  although  article  234 began  measure p r e s c r i p t i v e regime i n the EEZ, negotiations Consequently, consideration  has its  been  to  place  interpretation  it  part  of  the  special  the end r e s u l t o f UNCLOS in  should  of p e r m i s s i b l e standards  as  a  class  not  be  of  III  i t s own.  fettered  by  a  i n the t e r r i t o r i a l s e a s , the  - 145 EEZ or even in international straits.  Article 234, in other words,  may be termed a provision sui generis. As Pharand points out: Insofar as the Northwest Passage is concerned, i t would seem that, even i f i t becomes an international strait, the special provision on ice-covered areas (Article 234) would continue to apply. Indeed, Article 234 constitutes a special section (Section 8 of Part XII) by itself. . . If i t had been the intention to apply the legal regime of straits used for international navigations to those lying in ice-covered areas, Section 8 would have been added to the excluded sections specifically mentioned in Article 233... Article 234 stands in a completely independent position and_is unaffected by the provisions of standards, enforcement, and safeguards. The article validates Canada's Arctic Waters Pollution Act, both as to standard-setting powers and as to their enforcement.38 Needed changes in international law have often been effected through  the initiative  Proclamation  of interested states.  The Truman  on the Continental Shelf initiated the present regime  of the Continental Shelf; Norway introduced the straight baseline concept which was sanctioned in the Anglo-Norwegian Fisheries case; the United States and Canadian Air Defence Zones are also cases in point.39  Likewise, A.W.P.P.A. may be regarded as giving birth to  article 234 of the Convention. Canada's  A.W.P.P.A., there  Inasmuch as article 234 legitimizes would  be no need,  upon Canadian  ratification of the Convention, to amend i t . The Canada Shipping Act. (C.S.A.) The other major Canadian vessel-source legislation is part XX of C.S.A.40 This was enacted in the early 1970's partly as a result of the Manhattan incident but more directly in response to the Arrow oil  tanker  disaster off the coast  of Nova Scotia.  Canadian  - 146 vessel-source section  legislation, however, dates as far back as 1956 when  459A of the C.S.A. was enacted  to provide  statutory  authority for the introduction of the International Convention for the Prevention of Pollution of the Sea by Oil (1954) (OIL PCL 54). Part XX of C.S.A. was thus a further development on the old rules. Initially, C.S.A. was applicable only in the territorial sea where i t placed an absolute ban on vessel discharges. have also been passed regarding operation, and construction. lines  vessel  officers for their enforcement. jurisdiction  4  to pollution  With the extension  to 200 miles,  applied to these waters. !  equipment, manning,  Similar enforcement powers along the  of A.W.P.P.A. have been granted  fisheries  Regulations  prevention of Canadian  the C.S.A. automatically  Consequently C.S.A. now applies to all  Canadian waters south of the 60th parallel, as well as 100 miles from the limits of A.W.P.P.A. north of the 60th parallel. The zero discharge standard set by C.S.A. was inconsistent with (OIL PCL 54), to which Convention Canada was bound as a party. In view of the possible international opposition from the enforcement of  the zero discharge  standards outside  Canadian pollution prevention 1977  the territorial  seas,  officers were instructed in January  to refrain from exercising the full  under the C.S.A. in the Canadian EFZ.  extent of their powers  42  Enforcement of the C.S.A. involves surveillance, inspections, and prosecution of offenders.  43  The Department of National Defence  (DND), as part of its fisheries and aerial surveillance program, report polluting incidents to the Coast Guard for necessary action. On the whole, some 5000 hours of aerial surveillance is carried out  - 147 annually by the DND over waters frequented by shipping. supplemented  by  some 2000 hours of annual  This is  surface suveillance  involving patrol craft of the Department of Fisheries and Oceans. These activities have important deterrent effects. violations  are  followed  up  by  appropriate  enforcement action (discussed below).  In addition,  investigative  and  Vessel Traffic Management  (VTM) systems also monitor vessel compliance with national antipollution standards and thereby facilitate enforcement. On the first arrival of a foreign vessel in a Canadian port, i t is  inspected for compliance with Canadian standards by steamship  inspectors  who  are also pollution  thereafter, at least once annually. checked whenever practicable.  prevention  officers, and  Other foreign vessels are spot  Canadian flag  vessels are also  required to undergo annual and periodic inspection by steamship inspectors to ensure compliance with all applicable anti-pollution standards. Enforcement action against violators of Canadian anti-pollution standards is carried out in two ways.  In the first place, where  investigations of a pollution incident reveals an infraction of Canadian laws, the government may choose to prosecute such offenders in Canadian courts.  Fines imposed for pollution related offences  amounted to about 121,000 dollars in 1978. contravention  of OILPOL  54  by  Secondly, in the case of  a 'foreign  flag  vessel, where  enforcement of a violation is beyond the jurisdiction of a Canadian court, evidence gathered by Canadian authorities is provided to the flag-state observed,44  for appropriate n a v e  n o  enforcement.  These  violations, as  t been usually enforced by these states.  Under  the Convention on the Law of the Sea, Canada can, in the exercise of  - 148 port-state jurisdiction, punish such violators in its own courts. Alternatively, i t could pass on such evidence to the vessel's next port of call for the necessary enforcement action. the  Eastern  movement  Canada Traffic  reporting  System  system.  There is also  (ECAREG), a mandatory ship-  This  further enhances in-port  enforcement by identifying substandard vessels before they enter Canadian waters.45 The  above relates to violations that mainly occur  territorial  in the  seas and for those violations in the EFZ where such  ships voluntarily enter Canadian ports.  In the EFZ, enforcement of  anti-pollution standards based on a permissible discharge rate of 60 litres per mile is carried out mainly by DND  surveillance flights.  Pictures of polluting vessels encountered during such flights are taken with the high speed cameras mounted on these aircraft.  Such  evidence is eventually reported through the Department of External Affairs to the flag-state of the ship for necessary action.  A  limitation of DND surveillance is that i t is not operational during dark hours or bad weather when cloud or fog cover makes detection of ship source pollution impossible.  There is also the problem of  adequate manpower for the policing of the vast expanse of waters. The Canadian pollution prevention officers (Coast Guard) on the West Coast work in close  cooperation  with  their  United  State's  counterparts, especially in the Juan de Fuca Straits. C.S.A. and International Standards As observed, the total ban on discharges under Part XX of the C.S.A. is inconsistent with OIL POL 54's permissible standards.  The  latter Convention has been superseded by MAR POL 73/78, which is the norm or benchmark endorsed by UNCLOS III  against which national  - 149 vessel-source pollution standards may be judged.  Compared to MAR  POL 73/78, C.S.A. standards are still stringent in many respects. Firstly, C.S.A.'s total prohibition against the discharge of oil conflicts with those permitted by MARPOL 73/78, both as to amount and  kinds  of  oil.  Secondly,  even  though  Canada  applies  international standards with respect to design and contruction of foreign ships, i t applies more stringent manning and equipment standards under Part XX of C.S.A. to all vessels navigating the EFZ contrary to the applicable international rules in MAR 73/78.  Also the  powers of pollution  POL  prevention officers,  particularly those relating to the seizure of ships if exercised in the EFZ would be inconsistent with UNCLOS Ill's safeguard provisions.46 In  the  Convention  light  of  the  above, Canada  on  ratifying  the  would have to take measures to ensure C.S.A.'s  conformity with MAR POL 73/78. Canada's failure to so act would amount to a breach of international law.  Besides, such inaction  would be incompatible with the Canadian environmental posture on the international scene. As McDorman points out, "Canada has expended much diplomatic capital on the environmental regime and such an approach would indicate a lack of good faith in adopting the LOS Convention. Canada's prominent  environmentalist profile means that other  States will be scrutinizing Canada's response to the obligations and expectations created by the LOS Convention . . . Canada could not argue  that its legislation was  the "generally accepted"  international norm, since the most advanced international vesselsource pollution  regulations are in MARPOL, and the Canadian  legislation is more stringent than that permitted by MARPOL or  - 150 its 1978 protocol required  . . .  (U)nder International law, a State is  to alter its legislation  international  treaty,  thus  to conform with an accepted  Canada  might  be in breach of  international law in this regard."47 Canadian Response to the Challenge The Canadian government is alive to its responsibility on the matter.  In order  to ensure compatibility of Canada's marine  pollution  regime with  international standards and to formulate  appropriate policy and programme options, the government set up an interdepartmental working group in 1978 The working group reviewed all aspects of Canada's current marine  pollution  control  programmes,  and the advantages and  disadvantages of Canadian participation in international pollution control measures in the light of developments, among other things, at UNCLOS III. The working group recommended that Canada should ratify MARPOL 73/78 and the 1978 protocol  to SOLAS 74.  The report in part  states: There are considerable benefits to be derived from accessions to MARPOL '73. A comprehensive international approach offers the most effective long-term methods for dealing with ship-source pollution and with the substandard ships that constitute the major environmental threat. Flag and port state protection to coastal states against convention violators is considerably improved over the previous international regime, and provides additional protection as opposed to a unilateral regime outside the convention framework. It is expected that the great majority of maritime states will accept these Conventions and implement their provisions. Canadian refusal to participate would reduce multilateral flag and port-state enforcement protection. The commonality of standards of a global regime "provides for easier and more costeffective administration and enforcement, particularly with respect to the certification and inspection of shipboard equipment. Finally, participation 67 contracting states is important  - 151 not only with respect to improving the pollution control framework, but also with respect to other maritime interests, such as safety. (emphasis added). 49  This is an affirmation of the impact of IMO rules on pollution prevention on the global scene, rules whose jurisdictional basis are provided for under the Convention. The Working Group also recommended50 that Canadian ratification of MARPOL be subject to a reservation that would protect Canada's application of higher standards to Arctic waters.  This reservation  would seem unnecessary in view of article 234 of the Convention. Another recommendation of the Working Group was that bilateral cooperative arrangements be pursued with the United States in areas of  mutual  concern  dealing  with  marine  pollution.  Canadian  ratification of MARPOL 73/78 will add a new dimension to CanadianUnited States cooperation. MARPOL 73/78.  The United States is already a party to  Canada's ratification of this Convention will thus  provide a common basis of enforcement; this in spite of the United States' refusal to sign the Convention.51 The Working Group also recommended that changes be made to C.S.A.  to ensure its conformity  with MARPOL 73/78.  It observed  that any attempt by Canada to apply and exercise enforcement powers authorized under Part XX of C.S.A. in a manner inconsistent with MARPOL 73/78 and UNCLOS III jurisdictional framework would meet with strong international opposition and severe enforcement difficulties. In its view the coastal and port-state enforcement provisions of the Convention together with the discharge limits in MARPOL 73/78 should constitute a satisfactory overall regime against operational ship pollution.  Pending the entry into force of the Maritime Code Act,52  and in line with the Working Group's recommendations, a draft  -  152  -  Bill53 that seeks to make changes of an urgent nature to the C.S.A. that cannot await the adoption and entry into force of the Code has been prepared.  These proposed amendments to the C.S.A. would be  incorporated into the Maritime Code Act when the latter enters into force. Proposals under the Draft Bill include: the implementation and adoption of the 1978 protocol to SOLAS 74, thus enabling Canada to become a party to i t ; updating Part II of C.S.A. to enable Canada to become a party to the 1978  Convention on Standards of Training,  Certification and Watchkeeping for Seafarers, but with a reservation with respect to the compulsory knowledge of the English language (in conformity with the spirit of the Official Languages Act); amendment of Part XX of the C.S.A. on design, construction, equipment and operational standards to enable Canada to become a party to MARPOL 73/78 and to implement it).  In addition, the Bill would make fully  effective the Vessel Traffic Services  agreement with the United  States for the Juan de Fuca Strait concerning transit of ships to and from U.S. and Canadian ports.54 The Bill would also extend the powers of pollution prevention officers by permitting them to board vessels in Canadian ports to ensure compliance with MARPOL 73/78; to detain a ship on reasonable and probable grounds for believing an offence has been committed under Part XX by such vessels. This replaces the existing provision for  seizure.  Admittedly, detention of a vessel with its attendant  inconvenience and costs could be an effective means of ensuring compliance with standards; i t must, however, be effected with the Convention's safeguard provisions in mind. should be released on the posting of a bond.  Under this, a vessel  - 153 On the whole, the effect of the B i l l , when passed, would be to ensure Canada's compliance with SOLAS MARPOL 73/78, and STCW 78.  These  74 and its 1978 protocol, are the most important IMO  Conventions dealing with marine pollution. Article 210 of the Convention on the Law of the Sea requires states to adopt laws and regulations to prevent, reduce and control pollution of the environment by dumping. LDC  72 which  This is in reference to  Canada signed and ratified  in 1975.  implemented LDC 72 through the Ocean Dumping Act,55 compliance  with the Convention.  a n  Canada has  d is thus in  With these measures, Canadian  compliance with the vessel-source pollution requirements under the Convention  would  be assured.  Canadian  Convention would thus ensure, especially  ratification  of the  by way of port-state  enforcement, an enhanced enforcement of pollution control measures in the EFZ. In conclusion, a study of the evolution of the Canadian EFZ and the applicable vessel-source pollution legislation is instructive in several respects.  It shows the extent to which a state could go in  enacting and enforcing unilateral measures for a global problem such as marine  pollution.  Even though  A.W.P.P.A. was a unilateral  action, Canadian efforts to obtain international endorsement for the Act  shows that  unilateral  measures without  the acceptance or  acquiescence of the international community could be ineffective. Canada succeeded in this at UNCLOS III largely because  of its  diplomatic skill at the conference and the fact that the Arctic is an area not of much importance navigationally for many states. The successful implementation of the Canadian EFZ in the 70' s is also testimony of international acceptability of the idea at the time.  - 154 Secondly, unilateral measures are likely to be opposed where they conflict with international standards, especially treaties on the matter.  The Canadian unwillingness or inability to enforce the zero  discharge standards under the C.S.A. in its EFZ, attests to this. Also, much concession had to be granted to insurers of vessels plying the Arctic waters before A.W.P.P.A. could be implemented. This shows that in a world of interdependence, states actions are limited by the bonds of permissible tolerance on an issue.  Finally,  a state that ratifies a Convention such as UNCLOS, cannot use its domestic laws as an excuse for non-compliance of its vessel-source legislation with international standards. Canada has taken steps to ensure compliance  of its vessel-source pollution legislation with  international standards.  Being a state with a strong environmental  stature on the international scene, its action would be watched by other states;  indeed, i t could even be a basis for emulation by  these states.  Given similar action by other states, which they  should take by virtue of a binding obligation under the Law of the Sea Convention (assuming i t is in force), there would be consistency and uniformity in national legislations. cooperation  in the war against  This would enhance states'  vessel-source  consequent effectiveness and savings in cost.  pollution  with  - 155 FOOTNOTES Chapter IV 1.  See R.R.  Churchill and A.V. Lowe, Law of the Sea 291 (Manchester,  1983). 2.  (1906) 8 F. (J.C.) 93, reproduced in L.C. Green, International Law Through the Cases (I .T -C.) 420 (London, 1959).  3.  I .T .C., ibid, 421.  4.  See  Ian  Brownlie, Principles of  Public  International  Law  45  (Oxford, 1979). On prior judicial decisions of final authority, see 1 Congress del Partido, [1981] 2 All E.R. 1064, at 1072; Trendtex Trading Corporation v. Central Bank of Nigeria [1977] 1 All E.R. 881 , at 888-9. 5.  [1956] 3 D.L.R. (2d), 641. Relationship  See  between International  also R st.J. Mcdonald, "The Law  and  Domestic  law  in  Canada," in R. St. J. Mcdonald (et al eds.), Canadian Perspectives on International Law and Organisation 88 (Toronto, 1974). 6.  Ibid.,647.  7.  Constitution of the United States, Am. Jur. 2d Desk Book, 13, Item No. I; See also State of Missouri v. Ray P. Holland (1920), 252 U.S.  416.  8.  [1967] 3 All E.R.  679.  9.  44 A.J.I .L., supp., 13 (1950).  10.  Art. 26: Every treaty in force is binding upon the Parties to i t and must be performed by them in good faith. Art. 27: A party may not invoke the provisions of its internal law for  its failure  prejudice  to perform a treaty.  to article 46.  This  rule is without  Art. 46 makes exceptions "where the  violation is manifest and concerned a rule of its internal law of fundamental importance." The Vienna Convention on the Law of Treaties (Vienna Convention) is reproduced in 63 A.J.I.L 875 (1969).  - 156 11.  Art. 18 of the Vienna Convention provides inter alia, that: A state is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) i t has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until i t shall have made its intention clear not to become a party to the teaty; . .  12.  See  Ted  L.  obligations:  McDorman, Canadian  "National  legislation  and  Convention  Vessel-Source pollution Law,"  7 Marine  Policy 302 (1983). 13.  See  Fishing Zones of Canada (Zones 4 and 5) Order", Canada Gazette  Part II, Jan 1, 1977.  Although Canada has not claimed a full EEZ  within the meaning of the Convention, the effect of the Fishery zone and rights to the non-living resources in the shelf enable Canada to obtain substantial EEZ rights under the terms of the Convention.  This, however, does not cover other rights such as  scientific research and environmental protection and preservation. Even with these, i t is arguable that Canada can claim these by virtue of customary international law. 14.  See chap. 1, ante.  See Barry G. Buzan, "Canada and the Law of the Sea," IIO.D.I.L. 149  (1982);  Barbara  Johnson,  "Canadian  Foreign  Policy  and  Fisheries," in Barbara Johnson and Mark Zacher (eds.), Canadian Foreign Policy and the Law of the Sea 52 (Vancouver, 1977). 15.  See An Act Respecting the Territorial Sea and Fishing Zones of Canada, 13 Eliz. 2, ch. 22, July 16, 1964.  16.  See Act to amend the Territorial  Sea and Fishing Zones Act,  Revised Statutes of Canada (R.S.C.) 1970, c. 68. 17.  Both pieces of legislation, especially A.W.P.P.A. were, however, opposed by the United States. On A.W.P.P.A., see below  - 157 18. See chap. I l l ante. 19. Fishing Zones of Canada Order, supra note 13. 20.  Barbara Johnson, supra note note 14, at 87.  The practical result  of these Agreements, however, was that many of these states were "phased out" of the zone.  On the Pacific Coast for example, the  Agreements resulted in the phasing out of the Japanese, Koreans and the Soviets.  The only state allowed to fish in the zone is  Poland, which is limited to Pacific Hake fishing.  (Interviews,  Fisheries and Oceans, Vancouver). 21. Barbara Johnson, supra note 14, at 94. 22. On this see Robert Hage, "Canada and the Law of the Sea," 8 Marine Policy 2 (1984), at 6. 23. On Canadian vesel-source legislation Robert Hage, ibid.; R.M.  and their evolution, see  M'Gonigle and M.W.  Zacher, "Canadian  Foreign Policy and the Control of Marine Pollution," in Johnson and Zacher (eds.) op. cit supra note 14, at 10; Donat Pharand, The Law of the Sea of the Arctic (Ottawa, 1973) esp. 206-44; Ted L. McDorman (et. al.), The  Marine Environment  and the Caracas  Convention on the Law of the Sea (Halifax, 1981), esp. 57-95; Donat Pharand, "The Northwest Passage in International Law", 18 Can Yr. B. Int'l 99 (1979) (hereinafter referred to as "Northwest Passage");  D.M.  McRae and  Jurisdiction in Arctic Waters.  D.J.  Goundrey,  "Environmental  The Extent of Article 234," 16  U.B.C. L. Rev. 197 (1982), esp. 205-28; Transport Canada, Coast Guard,  "Control  of Pollution  from Shipping  in Waters  under  Canadian Jurisdiction, Doc TP 2937 E (Ottawa, 1981); Ted L.  - 158 McDorman, "National legislation and Convention Obligations," supra note 12, This discussion on Canadian vessel source legislation is based on these texts as well as clarifications sought from Canada Coast Guard (Vancouver). 24.  R.S.C., 1970, (1st supp.) c. 2, amended; S.C. 1977-78, c. 41.  25.  See  supra note 23.  26. The Act originally imposed absolute liability on shippers, (ss. 6(1) and (1)).  Insurers were not willing to insure vessels under  those terms. Following consultations with marine underwriters and the international shipping community, the section was modified by a number of sections in the regulations so as to bring the provisions in line with strict liability principles.  This was the  cause of the delay of the implementation of the Act. See Pharand, The Law of the Sea of the Arctic op. cit supra note 23, at 227. 27.  See "U.S. statement on Canada's proposed legislation," 9 Int'l Leg. Mat. 605 (1970).  28.  See "Canadian Reply to the U.S. Government,"  9 Int'l Leg. Mat.  607. 29.  Ibid. ,,615.  30. The  controversy was  commentators.  a field  A comprehensive  day list  for legal  scholars  and  of the literature on the  subject is reproduced in Timagenis, Marine Pollution 50 (Dobbs Ferry, N.Y., 1980). 31. This is the view of such jurists as Pharand, M'Gonigle and Zacher, Robert Hage and Barry Buzan, as well as the Canadian Government. 32.  See chap. I l l , ante.  - 159 33.  See Ted Mcdorman, National Legislation, supra note 12, at 308.  34.  D.M. McRae and D.J. Goundrey, supra note 23.  35. Ibid. , 227. 36.  Ibid., 221.  37.  Chapter III ante; M'Gonigle and Zacher, "Control of Marine Pollution," supra note 23 at 123.  38.  Pharand, "Northwest Passage", supra note 23, at 123.  39.  But see Henkin, "Arctic Anti-pollution:  Does Canada Make - or  Break-International Law," 65 A.J.I.L. 131 (1971), esp. 133 where he argues that unlike A.W.P.P.A., such earlier legislation as the Truman  Proclamation  did not infringe  deeply  on bona  fide  interests, "they slowly added up to custom, modifying previous fluid custom." 40.  R.S.C., 1970, c. S-9 as amended by R.S.C., 1970 (1st supp.) c. 38; R.S.C., 1970, (2nd supp), c. 10 and c. 27 (parts  not yet in  force);" and S.C. 1978-79, c. 11 and c. 13. 41. The C.S.A. applies to all Canadian waters and the Fishing Zones, except those areas under the jurisdiction of A.W.P.P.A., and all vessels therein.  See Part XX, C.S.A., s. 727 (2).  42.  See Doc TP 2937 E, supra note'23 at 3.  43.  Ibid., 2-3; interview with Coast Guard (Vancouver)  44.  See Chapter II.  45.  For details, see: Doc. TP 2937 E, 186.  46.  I b i d .,  47.  McDorman, supra note 12, at 309.  102;  See  also  Chap.  I l l , ante .  - 160 48. The Working Group's Report is pub. in Doc. TP 2937 E together with a  summary entitled,  "Control  "Executive Summary of Publication TP2937  of Pollution  from Shipping in Waters under Canadian  Jurisdiction." 49.  Ibid., 10.  50.  A set of recommendations based on the Working Group's Report is contained in the "Executive Summary."  51. The Convention prescribes the IMO rules, especially MARPOL 73/78 as the basis of vessel-source pollution enforcement (Chap. I l l , ante).  Consequently,  assuming  Canada  were  Convention, i t will be bound by MARPOL 73/78.  to ratify the The United States  is a non-signatory to the Convention, but having ratified MARPOL 73/78 is also bound by it; hence this common basis of enforcement. 52. The Maritime Code Act (S.C. 1977-78, c. 41) is intended to amend and/or replace the C.S.A.  It has been passed by the House of  Commons but has not yet been proclaimed in force (see Ted L. McDorman (et al.), op. c i t . supra note 23, at 63).  It is a  comprehensive Act dealing with various aspects of shipping such as  vessel  registration,  certification  and flag  requirements;  mortgages and sale of ships; judicial proceedings; as well as the regulation of shipping for the protection of the environment. The most significant provisions from the enforcement point of view are those allowing for detention, forfeiture and sale of vessels (sections Bl, 15-24) for violations under the Code.  With regard  to marine pollution offences, such powers are inconsistent with  - 161 UNCLOS Ill's safeguard provisions (Chap. III). The provisions are to be amended by the Draft Bill (Doc. TP 4888, Sep. 19, 1983). See below. 53. See Proposals  to Amend the Canada Shipping Act, (Information  Paper) Doc. TP 4888, Sept. 19, 1983. 54. The agreement was signed provides  in December, 1979.  that where Canada enters  The agreement  into a VTS agreement with  another state for a specific area, ships en route to ports in that state and transiting Canadian waters but not calling at Canadian ports  would  requirements. reciprocity.  be exempted  from  compliance with  Canadian  Such exemptions would be granted on the basis of See Doc. TP 4888, 7.  55. S.C. , 1975, c. 55.  - 162 -  CHAPTER V CONCLUSIONS The Convention on the Law of the Sea has crystallized the EEZ into an established institution of international law. neither the high seas nor the territorial seas.  The zone is  It is a zone sui  generis; a multifunctional zone of jurisdictional competence that allows a two-fold utilization of the seas. states'  sovereignty over  guaranteeing,  the resources  at the same time,  It ensures coastal in the zone  other states  whilst  the necessary  facilities of communication and transit. In the evolution of the EEZ, concern for fisheries brought with i t concomitant interest in preserving the quality of the marine environment.  Consequently, the Convention provides for,  among, others, an enforcement regime against vessel-source pollution as part of the EEZ package. IMO rules on the matter. in its provisions.  The Convention does not supplant the  It endorses and indeed incorporates them  In addition, i t provides the much needed  jurisdictional framework for the implementation of these rules. The  enforcement  of vessel-source pollution,  a problem  of significant global dimensions, had been left entirely to flagstate competence outside the territorial unsatisfactory arrangement,  seas.  This was an  since coastal-states, who were most  often affected by such pollution had no means of enforcement, but had to resort to flag-states who were often unwilling or even unable to do so. Now under the Convention, there has been provided  - 163 -  for in addition, coastal and port-state enforcement in the EEZ.  In  so doing, the Convention has revolutionized vessel-source pollution enforcement, for the EEZ  formerly  formed part of the high seas  where flag-state competence was the rule. Contrary  to other opinions,  i t is submitted that  the  tripartite scheme of flag, port, and coastal-state enforcement contains sufficient checks and  balances to ensure a viable and  effective system of enforcement. careful  balance required  navigational  rights.  The regime also maintains that  between coastal  states' interests and  As the analysis has shown, flag-state pre-  emption under the regime is not an immutable precept that allows these states  to  detriment of  the  provision zone;  act  arbitrarily  regime.  or even capriciously  Similarly, the  sovereign  to  the  immunity  is no licence for state-owned vessels to pollute the  i t entails liability  in the event of pollution damage.  Further, as the Canadian legislation shows, states that ratify the Convention would have to ensure conformity of their legislation with the Convention's texts; for pacta sunt servenda. lead to uniformity and consistency  This would  in national legislation, thus  enhancing states' cooperation in the war  against  vessel-source  pollution. The future of the Convention is quite bright, despite United States' opposition.  It was signed by some 119 States the very day  i t was opened for signature. states and the Soviet block. widespread Western support.  The majority of these were developing In addition, the Convention enjoys Canada, Japan, and France have all  - 164  -  signed i t , whilst the Federal  Republic of Germany, the United  Kingdom, and Italy are currently assessing their positions.  Even  i f the Convention does not enter into force, i t is arguable that its rules on environmental preservation have become customary rules of international law. been incorporated  These rules on vessel-source pollution have  into many national enactments.  This appeal to  custom coupled with ratification of MARPOL 73/78, as the United States  has  benefits  done, would appear to enable non-parties to enjoy  from the  Convention's marine environmental  without becoming parties to i t . inconsistent  with the  provisions  This course of action is, however,  "package deal" nature of the Convention.  Besides, as Hage points out, unlike the Convention, customary law offers few effective mechanisms for the resolution of disputes. The  and  efficient  jurisdictional basis for the enforcement of IMO rules.  In the pre  UNCLOS III  Convention  provides  an  effective  era, there were rules without a strong jurisdictional  basis for their enforcement. needed jurisdictional basis.  UNCLOS III has provided this much What is required now is the political  will of states to ratify the agreements and rules.  With that,  success  in the  pollution in the EEZ is assured.  war  to implement these  against  vessel-source  - 165 -  BIBLIOGRAPHY A. Conventions. Agreement for co-operation in dealing with pollution of the North Sea by o i l , 9 Int'l Leg. Mat. 359 (1970). Convention on the High Seas 1958, reproduced in Lay (et al eds.), New Directions in the Law of the Sea (New Directions) Documents), Vol.1, 257. Convention  on  International  Regulations for Preventing  Collisions at Sea 1972, 12Int'l Leg. Mat. 734 (1973). 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