Regulatory layers in shipping

The World Ocean In Globalisation: Climate Change, Sustainable Fisheries, Biodiversity, Shipping, Regional Issues

Volumn , Issue , 2011, Pages 345-370

  Ringbom, Henrik ^a  

^a EUROPEAN MARITIME SAFETY AGENCY   (Portugal)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84874348874     PISSN: None     EISSN: None     Source Type: Book    
DOI: 10.1163/9789004204225     Document Type: Chapter

References (81)

1. S. Sadowski, 'Protection of the Marine Environment of the North Sea: "The Russian Doll" Effect', in H. Ringbom (ed.), Competing Norms in the Law of Marine Environmental Protection: Focus on Ship Safety and Pollution Prevention (London: Kluwer Law International, 1997), pp. 109-119.
2. The LOS Convention, Art. 211(5). See also the regime for specific environmentally sensitive areas of the exclusive economic zone in Art. 211(6) and the exception provided for ice-covered waters in Art. 234.
3. The LOS Convention, Art. 21(2).
4. See also the Final Report of the International Law Association's Committee on Coastal State Jurisdiction relating to Marine Pollution over Vessel-Source Pollution, International Law Association, London Conference (London: International Law Association, 2000), pp. 443-500 (hereinafter ILA Final Report 2000).
5. For an overview see V. Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level (Leiden: Martinus Nijhoff, 2007), pp. 331-363.
6. The main examples are 'Special Areas' and 'Emission Control Areas' in the International Convention for the Prevention of Pollution by Ships (MARPOL); ships' routeing measures in Regulation V/10 of the International Convention for the Safety of Life at Sea (SOLAS) and related resolutions and the concept of PSSAs, which is discussed below; see also Sainlos, chapter 19 in this book.
7. Convention on the Control of Transboundary Movements of Hazardous Waste and Their Disposal, Basel, 1989; see also . 9 For a more detailed study of the extent of port-state regulatory jurisdiction, see H. Ringbom, The EU Maritime Safety Policy and International Law (Leiden: Martinus Nijhoff, 2008), pp. 204-237.
8. See in particular Regulations V/10 on ships' routeing systems, V/11 on ship reporting systems and V/12 on vessel traffic services.
9. Generally on IMO policy in respect of coastal state jurisdiction, see A. Blanco-Bazán, 'The Environmental UNCLOS and the Work of IMO in the Field of Prevention of Pollution from Vessels', in A. Kirchner (ed.), International Maritime Environmental Law, Institutions, Implementation and Innovations (The Hague: Kluwer Law International, 2003); and IMO doc. LEG/MISC/4, p. 8.
10. For example, Regulations V/10 and V/11 provide for the adoption by IMO of mandatory routeing and reporting systems in the exclusive economic zone. See also G. Plant, 'The Relationship between International Navigation Rights and Environmental Protection: A Legal Analysis of Mandatory Ship Traffic Systems', in Ringbom (ed.), Competing Norms, pp. 26-27;
11. ILA Final Report 2000, p. 453.
12. Arts 311(2) and (3) place limits on inter se agreements among the LOS Convention parties which may affect the object and purpose or 'basic principles' of the Convention or the enjoyment by other states parties of their rights and obligations. See also the somewhat more liberal Article 237 of the Convention, which deals specifically with environmental agreements.
13. See L. Shi, 'Successful Use of the Tacit Acceptance Procedure to Effectuate Progress in International Maritime Law', University of San Francisco Maritime Law Journal, Vol. 11, 1998/99, pp. 299-332.
14. As per 31 January 2011, 159 states had ratified or acceded to the 1974 SOLAS, together representing more than 99.16 per cent of the world's tonnage.
15. The most recent guidelines are to be found in the Annex to IMO Resolution A.982(24) 'Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas' (hereinafter 'the PSSA Guidelines').
16. See also V. Frank, 'Consequences of the Prestige Sinking for European and International Law', IJMCL, Vol. 20, 2005, p. 29
17. noting that while the first two categories can be applied independently of the PSSA designation, it is with respect to the third category of measures that 'the PSSA concept plays its major role'. M. Detjen, 'The Western European PSSA - Testing a Unique International Concept to Protect Imperilled Marine Ecosystems, Marine Policy, Vol. 30, 2006, p. 449
18. takes the view that the third category 'only makes sense if it allows for measures beyond generally accepted international rules'.
19. Article 211(6)(a) refers to 'special mandatory measures', whereby a state, following IMO approval, may adopt laws and regulations 'implementing such international rules and standards or navigational practices as are made applicable, through the organization, for special areas'. As to the 'additional laws and regulations' foreseen under Article 211(6)(c), it is specifically stated that they may relate to discharges and navigational practices but shall not cover design, construction, manning or equipment standards other than generally accepted international rules and standards. The latter subparagraph encompasses a potentially very wide range of measures, the scope of which is uncertain. See Molenaar, Coastal State Jurisdiction, pp. 404-407;
20. Blanco-Bazán, Environmental UNCLOS, p. 43;
21. A. Merialdi, 'Legal Restraints on Navigation in Marine Specially Protected Areas', in T. Scovazzi (ed.), Marine Specially Protected Areas (The Hague: Kluwer Law International, 1999), p. 34.
22. See IMO doc. MEPC 53/24, para. 8.25.11.
23. See the comments made at the IMO Legal Committee, referred to in IMO doc. LEG 87/17, para. 199. The UN Division for Ocean Affairs and the Law of the Sea was particularly clear on this point in IMO doc. LEG 87/17, Annex 7, p. 2: 'if NAV approves the measure as being in conformity with IMO requirements, then it would also be in conformity with UNCLOS, as UNCLOS defers to IMO on navigational rules, regulations and standards'.
24. Merialdi, 'Legal Restraints on Navigation', p. 32, refers to the drafting history of the special area regime in the LOS Convention and notes that the states opposing the notion of special areas 'did not object to the idea of special areas itself. It was the unilateral method put forward by coastal States for the designation of such areas that they saw as unacceptable'.
25. See also L.S. Johnson, Coastal State Regulation of International Shipping (Dobbs Ferry, NY: Oceana, 2004), at p. 110
26. 'Article 211(6) is confusing and is unlikely to provide a reliable vehicle to address coastal State concerns'; and L. de La Fayette, 'The Marine Environment Protec tion Committee: The Conjunction of the Law of the Sea and International Environmental Law', IJMCL, Vol. 16, 2001, at p. 191
27. '[i]n no case should Article 211(6) be interpreted to restrict the protection of the marine environment and the living resources of the sea'. 24 This applies both for flag states (Art. 211(2)) and for coastal states when introducing rules for foreign ship in the territorial sea or the exclusive economic zone (Arts 21(2) and 211(5)).
28. While the idea is gaining ground that formally non-binding instruments such as IMO resolutions may also qualify as 'generally accepted rules and standards', a key criterion for general acceptance is linked to their support in state practice. See ILA Final Report 2000, pp. 479-480
29. with further references. It may also be noted that a separation between the requirements of 'general acceptance' and regular IMO decisions on special areas is implicit in the text of Art. 211(6)(c) of the LOS Convention.
30. PSSA Guidelines, para. 9.2.
31. See Ringbom, EU Maritime Safety Policy, pp. 457-470, with further references.
32. Merialdi, 'Legal Restraints on Navigation', p. 38.
33. Those regions are the Baltic Sea, the North-East Atlantic (and for certain subject matters, only the North Sea), the Mediterranean Sea, the Black Sea.
34. On the Black Sea, see Oral, chapter 25 in this book.
35. See in particular Arts 30-32 of the 1969 Vienna Convention on the Law of Treaties.
36. See Case C-344/04 (IATA), European Court Reports 2006, I-403, para. 35.
37. For analyses of the EU-law relationship between international and EU shipping law, see Ringbom, EU Maritime Safety Policy, pp. 53-143
38. Frank, The European Community, pp. 257-269.
39. The new instruments cover flag-state obligations (Directive 2009/21), common principles for accident investigation (Directive 2009/18), liability insurance obligations (Directive 2009/20) and ship-operators' liabilities with respect to passengers (Regulation 392/2009). In addition, the package entails significant alterations of the existing directives on port-state control (Directive 2009/16), classification societies (Regulation 391/2009 and Directive 2009/15) and traffic monitoring (Directive 2009/17).
40. The prime example is the Port State Control Directive (Directive 95/21) which represents one of the cornerstones of the EU's maritime safety policy. The control and enforcement of international standards adopted by the IMO and the International Labour Organisation (ILO) was the original objective of the Directive; this remains so, despite numerous subsequent amendments of it.
41. An example is the enforcement of ILO Convention No. 180 on working time through Directive 1999/95. In this case, the basis for the application of the rule lies in the international entry into force of that ILO Convention, even though the Convention was brought into force through the ratification of only five states, which casts doubts on its truly international reach.
42. See Regulation No 3051/95 on the safety management of ro-ro passenger vessels.
43. Council Directive 97/70 setting up a harmonised safety regime for fishing vessels of 24 metres in length and over. This Directive implements, and to some extent exceeds, the 1993 Torremolinos Protocol on the Safety of Fishing Vessels, which has not entered into force.
44. For example, Directive 2001/96 establishing harmonised requirements and procedures for the safe loading and unloading of bulk carriers.
45. See, e.g., Council Directive 98/18 on safety rules and standards for passenger ships.
46. Directive 2000/59 on port reception facilities for ship-generated waste and cargo residues.
47. The phased-in requirements of Article 10 and Annex II(II) of Directive 2002/59 establishing a Community vessel traffic monitoring and information system encompassed a broader range of ships than SOLAS Regulation V/20 and had the effect of requiring existing cargo ships, which had specifically been excluded from the coverage of the international obligation, to be equipped with a VDR when calling at EU ports. Subsequently, however, SOLAS Regulation V/20 was amended, thereby reducing the differences with the EU VDR requirements on this point.
48. Directive 2003/25 on specific stability requirements for ro-ro ships.
49. Article 4b. These rules entered into effect on 1 January 2010.
50. Regulation 417/2002 on the accelerated phasing-in of double-hull or equivalent design requirements for single-hull oil tankers.
51. Regulation 1726/2003 amending Regulation 417/2002 on the accelerated phasing-in of double-hull or equivalent design requirements for single-hull oil tankers.
52. Directive 95/21, Art. 11(4).
53. See Directive 2009/16, Art. 16. A list of ships currently banned from EU ports is available at .
54. The original Port State Control Directive foresaw this type of enforcement solution with respect to non-compliance with Council Directive 93/75 concerning minimum requirements for vessels bound for or leaving Community ports and carrying dangerous or polluting goods (Annex I) or non-compliance with Article 8 of Council Directive 94/58/EC on the minimum level of training of seafarers (Annex III).
55. Concerning US legislation and practice, see R.A. Udell, 'United States Criminal Enforcement of Deliberate Vessel Pollution: A Document-Based Approach to MARPOL', in D. Vidas (ed.), Law, Technology and Science for Oceans in Globalisation (Leiden: Martinus Nijhoff, 2010), pp. 269-290.
56. Case C-440/05, European Court Reports 2007, I-9097.
57. Directive 2009/123.
58. Directive 2002/59 establishing a Community vessel traffic monitoring and information system, as amended by Directive 2009/17.
59. Art. 8(b) represents an exception by stipulating that foreign ships are to comply with vessel traffic services established beyond the territorial sea of member states, insofar as those ships are bound for a member state.
60. See the 1969 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties and Art. 221 of the LOS Convention.
61. The more stringent standards for the North Sea under the Directive applied as from 11 August 2007, while the corresponding amendment of MARPOL Annex VI became applicable on 22 November 2007.
62. Case C-308/06, (Intertanko et al.), European Court Reports 2008, I-4057. See also the referral by the High Court of Justice of England and Wales, Queen's Bench Division, in Intertanko et al. v. Secretary of State for Transport of 4 July 2006.
63. The judgment by the European Court of Justice was delivered on 3 June 2008. See A. K.-J. Tan, 'The EU Ship-Source Pollution Directive and Recent Expansions of Coastal State Jurisdiction', in Vidas (ed.), Law, Technology and Science for Oceans in Globalisation, pp. 291-305.
64. Art. 4a(4), emphasis added.
65. Art. 4a(3), emphasis added.
66. Examples of this trend include Article 6(4) of the 1996 Izmir Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements of Hazardous Wastes and their Disposal, which embraces a right of prior notification in the territorial sea; the 2002 Malta Protocol Concerning Cooperation in Preventing Pollution from Ships and, in Cases of Emergency, Combating Pollution of the Mediterranean Sea, which includes coastal requirements on issues such as post-accident reporting (Art. 9(2)) or 'measures aimed at reducing the risk of accidents' (Art. 15). See also the new Regulations 4 and 10-12 to Annex IV of the Helsinki Convention, which were introduced through Recommendation 22E/5 in 2001, which included requirements on double-hulled tankers, automatic identification systems, port state control, safety management and places of refuge, sometimes with express reference to the relevant EU legislation.
67. See Regulation 6 of Annex IV to the 1992 Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Area on the mandatory discharge of all waste to a port reception facility.
68. See Helcom Recommendations 25/7 and 28E/11 on the navigation in Baltic Sea ice conditions.
69. See Art. 4(2) of Annex V to the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic and the preamble and Arts 1(e) and 15 of the 2002 Malta Protocol.
70. See the detailed discussion by Raftopoulos, chapter 27 in this book. For an overview of activities in the Baltic Sea, North-East Atlantic and the Mediterranean Sea regions, see Frank, European Community, pp. 214-225.
71. E.g., the SAFEMED projects which cover the Mediterranean Sea and the pre-accession activities in respect of EU candidate and potential candidate countries.
72. See Article 8(2) of the Helsinki Convention and Regulation 6 of its Annex IV.
73. See Helcom Recommendation 19/14 and Baltic Sea Environment Proceedings No. 78 (2000), 'Guidelines on ensuring successful convictions of offenders of anti-pollution regulations at sea'.
74. See Vidas and Markovčić Kostelac, chapter 21 in this book.
75. In November 2008, the EMSA hosted a workshop to identify how the EU member states, the European Commission and EMSA can work together to provide a cohesive approach in implementing the ballast water management strategies of the regional forums and ratifying the Ballast Water Convention. See also .
76. IMO Resolutions A. 973(24) and A.974(24).
77. See IMO Resolution A.946(23), para. 1.
78. See and . See also O. Trieschmann, 'Illegal Oil Spills from Ships: Monitoring by Remote Sensing', in Vidas (ed.), Law, Technology and Science for Oceans in Globalisation, pp. 213-229;
79. K. Tahvonen, 'Monitoring Oil Pollution from Ships: Experiences from the Northern Baltic Practice, in ibid., pp. 231-244.
80. See .
81. Sadowski, 'Protection of the Marine Environment of the North Sea', at p. 110.