User:Kaihsu/EnvC2

C2: Protection of the marine environment

Jurisdiction
... for prescribing and enforcing pollution standards. Think also of freshwater/watercourses law and marine living resources e.g. 1995 Fish Stocks Agreement.

Customary law
Flag state prescribes pollution prevention rules for its vessels; but a coastal state can prescribe standards in its territorial seas without hampering innocent passage, and a port state for vessels in port. Flag state has jurisdiction on offences anywhere, but it cannot arrest a vessel in port or territorial sea of another state.

Coastal/port state can enforce breaches by a foreign vessel and arrest it; it must then either itself prosecute or inform the flag state, which should then prosecute and inform IMO (MARPOL arts. 4 to 7, 11).

MARPOL on jurisdiction
The 1973 International Convention for the Prevention of Pollution by Ships with 1978 Protocol prohibits non-party having more favourable treatment: art. 5(4). MARPOL standards apply to parties’ territorial seas and EEZ: art. 4(2). Flag state must prosecute MARPOL violations: arts. 4(1), 6(4). MARPOL has almost universal participation/coverage.

UNCLOS on jurisdiction
1982 United Nations Convention on the Law of the Sea Part XII relates to marine environment protection. Based on obligation to protect the environment. (art. 192 &larr; customary law) but also right to resources (art. 193); organic law for states to be co-legislators and co-enforcers: arts. 197, 211. Uses existing (e.g. MARPOL) and emerging (IMO) rules and standards.

Art. 211(2) obliges flag states to regulate their vessels to MARPOL standard. Coastal states can regulate pollution if such rules are duly publicized, not discriminatory, and not hamper innocent passage: arts. 21(3), 24, 211; this extends to EEZ (also Particularly Sensitive Sea Areas), and can be stricter than IMO rules esp. for ice-covered areas (e.g. Arctic). EU single-hull ban in EEZ after Prestige was more controversial than US ban in territorial waters after Exxon Valdez.

Flag state must prosecute breaches, with exclusive jurisdiction on the high seas (art. 92), and can arrest its vessels in another state’s EEZ. Coastal state can request for information from, inspect, and arrest (if information misleading or request declined) a foreign vessel even in EEZ (if major damage): art. 220. A port state can prosecute a vessel upon the request of another state: art. 219. There are procedural safeguards (arts. 223 to 232) and immunities for state-owned/warships (art. 236). These have enjoyed limited effect: S. China Sea arbitration (environmental impact assessment, due diligence, duty to cooperate).

For dumping, coastal state jurisdiction extends to EEZ: art. 216.

Regional arrangements
1972 Stockholm Conference started the 14 UNEP Regional Seas Programmes, totalling 32 conventions and protocols, e.g. 1992 Helsinki Convention on ... Baltic Sea Area (with HELCOM, Baltic Sea Action Plan), OSPAR, environmental emergency response.

Dumping
10 % of marine pollution. Coastal states must have dumping rules ≥ global standards: UNCLOS art. 210. Art. 216 UNCLOS extends coastal state jurisdiction to EEZ. Regional treaties e.g. OSPAR and Helsinki Convention also deals with dumping and may ban incineration at sea.

IMO 1972 London Convention, 1996 Protocol
The Convention allows dumping unless prohibited; the Protocol reverses this (Annex I). Most industrial states except USA and Russia are parties to Protocol. 1996 Protocol (in force since 2006) is based on precationary and polluter-pays principles, and bans incineration at sea. State where loading happens and (if loading at non-party) flag state have responsibility (Convention art. VI); coastal state may regulate in EEZ (Protocol art. 10.1.3).

Under the Convention, wastes are categorized as blacklisted, prior special permit (grey list), general permit: Convention art. IV. There must be post hoc monitoring of dump site. Sovereign vessels and aircrafts are immune but must be consistent: art. VII(4). Dumping radioactive wastes under moratorium 1985, prohibited 1993, in force for all 2005.

The Protocol was amended 2006 to allow CO2 sequestration (in force since 2007); amended 2013 by Resolution LP.4(8) to regulate marine geoengineering and ban ocean fertilisation except for research (art. 6bis, Annexes 4 and 5; not yet in force).

Land-based sources
44 % to 80 % of all marine pollution (also via atmosphere) &rarr; SDG 14.1, regulated by e.g.:
 * Arts. 194, 207, (atmospheric) 212 UNCLOS.
 * Regional treaties: 1992 OSPAR Convention (NE Atlantic): substantive annexes, black/grey list &rarr; uniform approach, precautionary and polluter-pays, best available technique/environmental practice, environmental impact assessment, rulemaking/supervising OSPAR Commission. Similar, plus atmospheric (best available technique, best environmental practice) and coastal ecosystems: Article 2(2) 1992 Helsinki Convention (Baltic) with HELCOM. Cf. Mediterranean and elsewhere.
 * Soft law: 1985 Montreal Guidelines for the Protection of the Marine Environment Against Pollution from Land-based Sources; 1995 Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (and Washington Declaration) &larr; Rio Agenda 21 &rarr; Stockholm POP Convention.
 * Law of international watercourses: see User:Kaihsu/EnvD6.

Vessels
12 % of marine pollution. Torrey Canyon 1967 was a prominent early case. Probo Koala 2006 shows shift of pollution from sea to land. There are also 2001 IMO Antifouling Systems Convention in force 2008, 2004 Ballast Water Convention, 2007 Nairobi Wrecks Convention, 2014 Polar Code (in force 2017).

Liabilities: see User:Kaihsu/EnvB3. Emergency response: IMO 1990 OPRC Convention, 2000 OPRC-HNS Protocol – coastal state intervention allowed.

Enforcement: e.g. Paris MoU on port state control.

UNCLOS on vessels
States must adopt routing systems and regulate own-flag vessels ≥ international standards (i.e. MARPOL): UNCLOS art. 211. They may establish rules for foreign vessels in port and for EEZ (navigation practices but not ship construction, design, equipment, manning). Port state can enforce against discharge violations on high sea: art. 218(1), dédoublement fonctionnel.

Environmental emergency response: arts. 198, 199.

MARPOL on vessels
1973 Convention and 1978 Protocol aim for no marine pollution from oil, hazmat and minimizing accidents, through flag-state-issued certificates and port inspections (arts. 6, 8, 11, 17). Annexes: I (oil, double-hull required), II (bulk noxious liquids) (both binding on all parties), optional annexes: III (packaged harmful substances), IV (sewage, e.g. Baltic Sea Special Area), V (garbage, ban unless exempt e.g. food wastes, animal carcasses, harmless cargo residues and washing water), VI (air pollution).

Annex VI (air pollution) came into force 2005. Release of volatile organic compounds is regulated and of ozone-depleters banned. IMO Marine Environment Protection Committee revised it, with NOx Technical Code 2008 (in force from 2010). NOx and SOx are progressively reduced in emission control areas (ECAs): e.g. US–Caribbean Sea ECA took effect in 2014. Global sulfur cap will be 0.50 % from 2020: “IMO Sulphur 2020”. NOx is controlled by diesel engine design requirements. For reducing greenhouse gases: New Chapter 4 was added to Annex VI in 2011 to make mandatory the Energy Efficiency Design Index (EEDI) for new ships, and the Ship Energy Efficiency Management Plan (SEEMP) for all ships.

Hong Kong Convention
2009 International Convention for the Safe and Environmentally Sound Recycling of Ships is not yet in force. It requires ships for recycling to carry an inventory of hazardous materials and bans some hazardous materials from shipyards, repair yards and ships of Parties. It provides for an initial survey for ships and a final one before recycling. IMO adopts guidelines.

Seabed activities
States must control seabed activities within their jurisdiction with rules ≥ international standards: UNCLOS art. 208. OSPAR and Helsinki Conv., too.

International Seabed Authority (UNCLOS art. 145) regulates “the Area” and contracts with sponsoring States to ensure due diligence and apply precautionary principle: 2011 Advisory Opinion of the Seabed Dispute Chamber Activities in the Area. Helsinki Conv. also regulates such activities.

E.g. Deepwater Horizon explosion. Arctic Sunrise ITLOS provisional measures 2013, merits 2015 in favour of right to protest against coastal state.