The coastal state's Prescriptive and Enforcement jurisdiction in relation to ship source pollution in Territorial Sea, Archipelagic Waters and Straits

  I.           Introduction

Coastal state jurisdiction is the jurisdiction enjoyed by the coastal state in relation to breaches of regulations and laws by foreign flagged ships that take place within its jurisdictional zones. The prescriptive and enforcement jurisdiction comprise the main power of a coastal state. Prescriptive is the jurisdiction to prescribe laws and regulations, while Enforcement is the jurisdiction to enforce such laws.

The rights and obligations of states in relation to navigation and pollution are determined primarily by international conventions and customary international law. The 1982 Law of the Sea Convention (UNCLOS) is the most widely ratified convention in this field of law, outlining the rights and obligations of states in relation to their jurisdictional zones as well as with respect to environmental protection.

 II.           The Customary International Law

The Customary International Law is one of the main sources of International Law, involving the principle of custom. Article 38(1) (b) of the International Court of Justice Statute defines customary international law as an "evidence of a general practice accepted as law”. This is generally determined through two factors: Firstly, the general practice of states (the objective element) and secondly, the opinio juris i.e. what states have accepted as law (subjective element).

The North Sea Continental Shelf Cases confirmed that both the state practice (the objective element) and the opinio juris (the subjective element), are essential pre-requisites for the formation of a customary law rule. 

III. The United Nations Convention of the Law of the Sea

As mentioned above, UNCLOS is the most widely ratified convention in this field of law. States have under UNCLOS the obligation to protect and preserve the marine environment pursuant to Article 192. They are also under an obligation to take measures jointly or individually to reduce and prevent, control and reduce pollution of the marine environment from any source including the atmosphere and from vessels.

In relation to ship source pollution there are various obligations. A first obligation is that of cooperation through the IMO or other general international conference to “establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels and promote the adoption, in the same manner, wherever appropriate, of routeing systems designed to minimize the threat of accidents which might cause pollution of the marine environment, including the coastline, and pollution damage to the related interests of coastal States. Such rules and standards shall, in the same manner, be re-examined from time to time as necessary”.

It is noticeable to say that article 1(4) Unclos defines what the pollution of marine environment is. According to article 1(4), pollution of the marine environment means ‘‘the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results 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 amenities’’.

Moreover, article 237 Unclos includes specific provisions on the relationship between UNCLOS and other conventions on the protection and preservation of the marine environment. Thus, the obligations under other conventions regarding the prescriptive and enforcement jurisdiction of a coastal state, are without prejudice the Unclos’s provisions, however should be carried out in a manner consistent with the general principles and objectives of the Unclos Convention. 

IV. Territorial sea

a)       Prescriptive rights

In territorial sea there is a general position that the jurisdiction of a costal state extends to 12 nautical miles, in an area called territorial sea (Art.3), while article 2 states the legal status of the territorial sea. This means that if any foreign vessel sails within the territorial sea, the coastal state has rights to prescribe law for its entry (Art. 25). The most significant constrain of this area is the concept of ‘‘innocent passage’’ (Art.17). Article 18 refers to the meaning of the innocent passage, emphasising that the foreign vessels enjoy a contiguous and expeditious passage, which in accordance with article 19, is not prejudicial to the peace, good order or security of the coastal state. It is interesting to say that the innocent passage applies also to warships and therefore, they are entitled to enjoy the right of innocent passage, during peace (this was seen in Corfu Case). More specifically, article 19 defines what not innocent passage is. The coastal state according to article 24 shall not hamper the innocent passage of foreign vessel, nor impose requirements impairing it. However, through article 21 the costal state has the right to prescribe and adopt laws regarding the innocent passage. In addition, article 22 (1) gives the right to the coastal state to prescribe regulations with respect to sea lanes and traffic separation scheme. Another restriction is in paragraph 1(1) of Article 21, where the coastal state cannot prescribe laws or regulations, regarding the equipment, construction, design and manning (ECDM standards given by IMO) of foreign ships. Hence, one can argue that the violation of such laws in article 21 it is likely to make the passage not innocent. Similarly, under article 211(4), regarding the measures that a coastal state can adopt in relation with the pollution from vessel, the coastal state may exercise its sovereignty within the territorial sea, adopting laws and regulations, including the vessels exercising the right of innocent passage. Nevertheless, such laws and regulations shall not hamper the innocent passage of the foreign vessels, constraining the power of coastal state regarding the innocent passage. 

 b)      Enforcement right

Regarding the enforcement power that the coastal state has, as mentioned above the foreign ships within the territorial sea enjoy the right of innocent passage subject to the requirements contained in Articles 17 and 19. This means that the coastal state cannot have any enforcement right on such ships. However, if the correct interpretation of Article 21 is that any violation of such laws makes the passage non innocent, then the coastal state has enforcement jurisdiction as per article 25(1). According to article 25(1) the coastal state may take the necessary measures in its territorial sea to prevent its passage which is not innocent (for instance it could deny the access of the ship in its territorial sea). Article 25 (3) refers to the right of coastal state to suspend temporarily in specified areas of its territorial sea the innocent passage, if such suspension is required for security measures and if it is duly published. Additionally, pursuant to article 220(2), when there is an indication that a vessel navigating in the territorial sea has acted in violation of the national laws and regulation of that state (Art. 19 and 21) and the international rules and standards under IMO, the coastal state may take steps, including search, arrest and detention of the ship, without prejudice to the provisions of Part II, section 3, regarding the innocent passage. The only case that a coastal state can hamper a vessel being on innocent passage is in the event of a serious incident of pollution. Lastly, under article 230(2) monetary penalties may be imposed, with respect to marine pollution violations committed by foreign vessels in the territorial sea.

 c)       Customary International Law

Regarding the prescriptive powers, under customary international law, there was the right of innocent passage for the foreign vessels. In Corfu Channel Case, the ICJ held that the right to innocent passage through territorial seas existed for warship.

Furthermore, it is of great importance to be mentioned that the non-innocent passage before 1982 included environmental threats. Generally, the UNCLOS’ provisions on the territorial sea did not change, in essence, the pre-existing norms of customary international law described in the 1958 Territorial Sea Convention, which defines the “foundations of the territorial sea regime”. Also, customary international law can be seen in Territorial Sea at the Hague Codification Conference of 1930.

Similar with prescriptive power, the coastal state did have enforcement right regarding the innocent passage. There are old cases where, vessels were arrested in territorial sea by the coast guard, but not for environmental reasons. Also, there were enforceable rights that affected the innocent passage, however, it is not 100% clear when someone can interfere a vessel under customary international law and thus, the position is unclear.  

In addition, one can argue that Unclos exists now and Customary International Law has been modified because Unclos has been widely ratified (168 countries have ratified Unclos on June 2016). The particular provisions in the territorial sea before Unclos (1958 Territorial Sea Convention) are not doubted, but are part of Customary International Law. Hence, one other can argue that the customary International law is not binding anymore.

 V. Straits

a)     Prescriptive rights

In accordance with the United Nations Convention on the Law of the Sea (UNCLOS) 1982 the regime that applies in straits is that ships have the right of ‘‘transit passage’’. Article 38(1) states that all ships enjoy the right of transit passage. Transit passage is the concept which a vessel enjoys the freedom of navigation, having, without delay (Art 39(1) ), continuous and expeditious transit (Art 38(2) ), from the straits to either the Exclusive Economic Zone (‘‘EEZ’’), or the High sea (Art 37 & 38(2) ), however, it does not apply to ships entering, leaving or returning from a state bordering the strait. Furthermore, a ship in transit must comply at the same time with international generally accepted regulations and procedures for navigation and pollution from ships (Art 39(2) ), such as Safety of Life at Sea (SOLAS) and the IMO pollution conventions. This passage is at least as liberal as innocent passage, but it does not have the character of those water (Art 45(1) ). These straits are used for International navigation (Art 37). Also, according to Art. 45(1b) the regime of innocent passage, shall apply in straits used for international navigation, between a part of the high seas or EEZ and the territorial sea of a foreign state. During the transit passage, the ship should not be hampered, nor can be suspended (Art. 45(2) regarding innocent passage & Art 44 regarding the states bordering straits) ) and the coastal state must give appropriate notification of any dangers to navigation (Art 44). Additionally, pursuant to article 42(1) the coastal state has the prescriptive jurisdiction to establish sea lanes and traffic separation schemes, conforming to generally accepted international regulations, for the purposes of the safety of navigation. Nevertheless, such laws and regulations shall not hamper the right of transit passage of the foreign vessels.

Lastly, regarding the straits used not for international navigation (any activity which is not an exercise of the right of transit passage), article 38(3) mentions that these straits remain subject to the other applicable provisions of the Convention. Thus, the prescriptive jurisdiction of that straits and their legal regime are completely different and the coastal state has to activate other applicable provisions, in order to prescribe its jurisdiction.

b)    Enforcement right

The level of enforcement action is not made clear by UNCLOS. Regarding the straits used for international navigation, article 38(1) states that all ships enjoy the right of transit passage, which gives to a vessel the right to enjoy the freedom of navigation, having, continuous and expeditious transit (Art 38(2) ). During the transit passage, the ship enjoys the regime of innocent passage, thus, it should not be hampered, nor can be suspended (Art. 45(2) regarding innocent passage & Art 44 regarding the states bordering straits). According to art 45(1), the enforcement provisions of innocent passage in territorial sea, seem to have analogous application in straits used for international navigation (articles17-26). Thus, according to article 25(3), which defines the regime of innocent passage in territorial sea, the coastal state has the enforcement jurisdiction and right to temporarily suspend innocent passage of a foreign vessel (in transit passage), if this is essential for the security of the coastal state. In addition, article 34 states that straits used for international navigation does not affect the legal status of the waters of the strait nor the coastal state’s sovereignty and jurisdiction over such waters and their air space. 

Regarding the straits used not for international navigation, article 38 (3) makes clear that ships not undergoing transit passage will be subject to other applicable provisions of the convention. Thus, the enforcement jurisdiction of that straits and their legal regime are completely different and the coastal state has to activate the applicable enforcement provisions, of the non-innocent passage in territorial sea, in order to enforce its jurisdiction (articles 25(1), 220(2) and 230(2) ). Lastly, under article 233, ships that commit marine environment violations, during their transit passage are subject to “appropriate enforcement measures” by strait states.

c)     Customary International law

There are straits, which are regulated by UNCLOS, but also there are straits, which are regulated by other separated conventions. For instance, the Turkish straits, the straits of Gibraltar, the straits of Malacca and Singapore, the Torres Strait and lastly the Bering Strait are regulated by other separated regional or international conventions. Therefore, these specific international Straits may have different regulations regarding the prescriptive and enforcement jurisdiction.

The Coastal state has very limited rights regarding the closing of the straits to ships. The rule of transit passage through straits used for international navigation was introduced by customary international law in Corfu Channel Case. In Corfu case the ICJ made clear that in a time of peace states had a right to send their worships through straits used for international navigation between the two parts of the high seas. Thus, the decision made clear that the right of innocent passage existed in straits.

 VI. Archipelagic waters

a)       Prescriptive rights

UNCLOS recognised a new type of jurisdictional zone applicable to archipelagic states. Article 46 defines what an archipelagic state is, while, article 49 states the legal status of archipelagic waters, where the sovereignty of an archipelagic state extends to the waters enclosed by the archipelagic baselines. Article 47, gives the prescriptive right to an archipelagic state to draw its baselines. According to article 52(1), all ships enjoy the right of innocent passage through archipelagic waters subject to the right of the archipelagic state to designate archipelagic lanes (Art 53). Where archipelagic lanes are designated passing ships enjoy rights and have obligations equal to transit passage (Art 54). These rights are equal with those ones of the coastal state within an international strait (Art 39, 40, 42, 44). Therefore, according to article 42, the archipelagic state has the right to prescribe laws, relating to transit passage. Moreover, where the archipelagic state has not designated archipelagic lanes then “the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation” (Art 53 (12) ). Thus, passage through archipelagic sea lanes must only conform with international standards for navigation and pollution and coastal state laws will not be applicable. Also, according to article 211(1), regarding the pollution from ship, an archipelagic state can derive prescriptive jurisdiction establishing international rules and standards.

An archipelagic state has much capacity to control and regulate innocent passage of foreign ships within its archipelagic waters as does the coastal state within the territorial sea (Art 17-32). This extends to stopping, detention, arrest and prosecution of vessels engaging in actions which are contrary to the legitimate laws and regulations of the archipelagic state and also, taking necessary steps, to prevent passage which is not innocent.

However, the only limitation which may exist upon the archipelagic state in this regard would arise from the recognition of traditional fishing rights and other legitimate activities of neighbouring states within the archipelagic waters (art 51).

b)      Enforcement right

There is no clear and express enforcement jurisdiction to archipelagic waters under UNCLOS, however article 52(1) states that all ships enjoy the right of innocent passage, which gives to a vessel the right to enjoy the freedom of navigation, having, continuous and expeditious transit. Thus, it should not be hampered, nor can be suspended. The enforcement provisions of innocent passage in territorial sea (provisions 17-26), seem to have analogous application in archipelagic waters, (similar with straits used for international navigation, art 45 (1) ). Thus, according to article 25(3) (regime of innocent passage in territorial sea) the coastal state has the enforcement jurisdiction and right to temporarily suspend innocent passage of a foreign vessel, if this is essential for the security of the coastal state.

Regarding the archipelagic waters which do not enjoy the right of innocent passage it makes sense that are subject to other applicable provisions of the convention. Thus, in order for the archipelagic state to enforce its jurisdiction, has to activate the applicable enforcement provisions, of the non-innocent passage in territorial sea (articles 25(1), 220(2) and 230(2) ). In addition, someone can argue that the archipelagic state derives enforcement jurisdiction from article 233, where ships that commit marine environment violations, during their transit passage are subject to “appropriate enforcement measures” by strait states.

Lastly, regarding the archipelagic sea lanes passage (art 53), the rights of the archipelagic states to engage in enforcement within those waters is equated with the rights of the coastal state within an international strait (Art 54).

c)     Customary International Law

As far as the customary international law is concerned, due to archipelagic waters is a new type of jurisdictional zone and did not exist before Unclos, there is no source or customary international law, describing what it was enforceable and what it was not.

However, in the case on merits Qatar v Bahrain 2001, Bahrain had not declared its self an archipelagic state and was therefore unable to avail itself of the provisions of Part IV. The ICJ in Qatar v Bahrain, made it clear that part IV straight archipelagic baselines can only be relied upon by a state which has declared itself to be an archipelagic state.

Also, there are some state practises regarding the archipelagic waters. For instance, Indonesia and Philippines follow and share common principles with respect to the drawing of straight baselines, different than those lied in both articles 7 and 47. Furthermore, some archipelagic states such as Australia, Cuba, Iceland, Ireland, Japan, Malta, New Zealand, Singapore and the UK prevented from drawing archipelagic baselines under article 47, because they could not enclose an area of water equal to the area of land. However, this does not bar those states from drawing straight baselines consistent with article 7.