The most comprehensive set of laws and regulations covering the law of the sea is the 1982 UN Convention on the Law of the Sea (UNCLOS). Marine environmental protection instruments are divided into two broad categories – global instruments and regional instruments.
Modern Early History of the Law of the Sea
The first attempt at codification of the law of the sea was the Hague Conference of 1930. It largely failed in its efforts. However, Geneva UNCLOS 1 – in 1958, led to four conventions:
- The Convention on the Territorial Sea and Contiguous Zone
- The Convention on the Continental Shelf
- The Convention on the High Seas, and
- The Convention on Fishing and Conservation of the Living Resources of the High Seas
The Geneva Conventions of 1958 required states to prevent oil pollution from ships, pipelines, seabed operations, and radioactive pollution. Challenges with UNCLOS I and II were predicated on states’ failure to agree on the breadth of the territorial sea.
1982 United Nations Convention on the Law of the Sea (UNCLOS, or UNCLOS III)
The 1982 UNCLOS III – which met from 1973 to 1982, was the first significant breakthrough in the codification of the law of the sea. The Convention has over 160 signatories and represents most of the nations of the world. The scheme includes “flag states” – those countries whose state the vessel flies the flag of, and “coastal states” – those states that are more concerned with internal security and pollution.
- A flag state is a state of the nationality of the vessel
- A coastal state is a state in whose marine zone a vessel lies
- A port state is a state in whose port a vessel lies
1982 UNCLOS had two key objectives:
- Prevent, reduce and control marine pollution
- Conserve and manage marine living resources
The 1982 UNCLOS allows coastal states to regulate their territorial seas, straits, archipelagic sea lanes, and protecting and preserving the marine environment in their exclusive economic zone.
Pollution of the seas is no longer implied in the freedom of the seas, and control of pollutants is required of all sources. It does not focus on liability for environmental damage but does focus on international regulation and cooperation on the use of the oceans.
Liability for Oil Pollution
Liability for oil pollution is covered by:
- 1969 International Convention on Civil Liability for Oil Pollution Damage
- 1992 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage
- 2001 International Convention on Civil Liability for Bunker Oil Pollution Damage
- 1996 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea
The 1992 protocol establishes liability for a shipowner for pollution damage for oil escaping from a ship due to an accident on the territory of a party. Liability levels were established and widened the scope to cover pollution damage caused in the EEZ or equivalent area.
The 1992 Oil Fund Protocol established the International Oil Pollution Compensation Fund (IOPC Fund) to provide adequate compensation for pollution damage.
The 2003 Protocol added a third tier of compensation and is open to all state parties to the 1992 Convention.
The 2001 Bunker Convention established adequate compensation is available for those who suffer damage caused by oil spills carried in ship bunkers. The convention applies to damage caused on the territory and EEZ of state parties. The registered owners of vessels are required to maintain compulsory insurance to cover liabilities.
Maritime Zones Under 1982 UNCLOS
The following zones are defined in UNCLOS:
- Baseline – a line contiguous to the coast
- Internal Waters – Waters within the baseline – countries are free to determine conditions of entry for foreign vessels, and freedom of navigation or innocent passage does not apply.
- Territorial Sea – 12 nautical miles from the baseline – the coastal state has sovereignty. Coastal states may set additional pollution standards, but regulation must not be contrary to the right of innocent passage of foreign vessels.
- Exclusive Economic Zone (EEZ)- the area adjacent to the Territorial Sea – 188 nautical miles beyond the Territorial Sea and 200 nautical miles past the baseline. This does not arise automatically and must be claimed. Coastal states have sovereign rights for exploring, exploiting, conserving, and managing natural resources. The coastal states have an obligation to establish management and conservation regimes for living resources. These areas have a right to freedom of navigation, and conservation measures must not exceed those sent at the international level.
- Continental Shelf – the seabed adjacent to and beyond the territorial sea – a minimum of 200 nautical miles and up to 350 nautical miles when the shelf extends out that far. The coastal state has the inherent right to the natural resources in the continental shelf area, regardless of whether it explores or exploits them.
- High Seas – waters that are not otherwise classified above and not under the exclusive jurisdiction of any state. There are few restrictions on the high seas. Flag states have exclusive jurisdiction to prescribe and enforce their regulations on the high seas. International environmental protection standards apply. Fishing is subject to UNCLOS and the 1995 UN Fish Stocks Agreement.
- Area – the deep seabed beyond any national jurisdiction. The International Seabed Authority governs the exploration and exploitation of natural resources in the area.
When there is a dispute due to overlapping state claims, the International Court of Justice will resolve the conflict using principles of equity. UNCLOS does not endorse any particular method of delimitation. Considered within the equity elements include the presence of natural resources in continental shelf areas. Emerging law requires coastal states to develop common oil deposits jointly. The ICJ used this in the 1999 Eritrea – Yemen award.
In the North Sea Shelf Cases (1969), the ICJ first applied these principles of equity over the prior “equidistant” dominant position for dispute resolution. This was further reinforced in the Caribbean Sea – Nicaragua v. Honduras (2007), noting that the equidistance line may be abandoned for equitable circumstances, the Tunisia-Libya Continental Shelf Case (1982), Bangladesh v. Myanmar (2012), Peru v. Chile (2014).
According to the MARPOL Convention, flag states have a duty to apply the convention pollution standards to vessels under their flag in territorial seas and the EEZ. Port states may adopt any pollution prevention legislation for foreign vessels in their ports. Flag states have general jurisdiction over their vessels anywhere and may institute criminal proceedings in all zones, including other territorial seas and ports as well as the high seas.
Under MARPOL, the flag state has a duty to institute criminal proceedings against any vessels suspected of violating the convention. The coastal state may also enforce its laws, institute criminal proceedings in their territorial seas, and inform the flag state that a violation has occurred. The coastal state may also detain the vessel until the environmental hazard has been abated.
The 1982 UNCLOS mandates that flag states deal with violations by their vessels wherever they occur and extends the jurisdiction for enforcement of coastal states to the extent of the EEZ to the extent of international environmental law. UNCLOS gives coastal states the right to physically inspect vessels and arrest in the event of a breach, and the vessel enters the port and declines or supplied misleading information. That includes detaining any ship where the seaworthiness of a vessel is in question.