The EU ship-source pollution directive and recent expansions of coastal state jurisdiction

Law, Technology and Science for Oceans in Globalisation: IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf

Volumn , Issue , 2010, Pages 291-305

  Tan, Alan Khee Jin ^a  

^a NATIONAL UNIVERSITY OF SINGAPORE   (Singapore)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84882570605     PISSN: None     EISSN: None     Source Type: Book    
DOI: 10.1163/ej.9789004180406.i-610     Document Type: Chapter

References (51)

1. Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on Ship-source Pollution and on the Introduction of Penalties for Infringements, Official Journal of the European Union, L 255, 2005, p. 11.
2. corrigenda at L 33, 2006, p. 87, and L 105, 2006, p. 65 (hereinafter: Directive 2005/35/EC).
3. The International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto; for the Convention with Annexes, including unified interpretations and amendments, see MARPOL 73/78 - Consolidated Edition 2006 (London: IMO, 2006).
4. Intertanko and others v. Secretary of State for Transport, High Court of Justice of England and Wales (Queen's Bench Division), Case Number: CO/10651/2005, [2006] EWHC 1577 (Admin), 30 June 2006; available at .
5. The wording of Regulation 11, Annex I is similar to that in Regulation 6, Annex II. The Annexes contain regulations for the prevention of pollution by oil and noxious liquid substances in bulk, respectively. These regulations now appear as Regulation 4(2), Annex I and Regulation 3(2), Annex II in the revised versions of the two Annexes that came into force on 1 January 2007. This chapter uses the old numbering, as did the ECJ.
6. MARPOL 73/78, Annex I, Regulation 11(b)(ii).
7. Directive 2005/35/EC, Art. 4.
8. Directive 2005/35/EC, Art. 5(2), read with MARPOL 73/78, Annex I, Regulation 11.
9. Directive 2005/35/EC, Arts. 4 and 5(1).
10. Case C-308/06 The Queen on the application of International Association of Independent Tanker Owners (Intertanko) and Others v Secretary of State for Transport (Reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen's Bench Division (Administrative Court)), Judgment of 3 June 2008, Official Journal of the European Union, C 183, of 19 July 2008, pp. 2-3 (hereinafter: ECJ Judgment).
11. Opinion of Advocate General Julianne Kokott, 20 November 2007 (original in German), available at .
12. See the criticisms in the industry coalition Joint Press Release, 3 June 2008, available at (last accessed 2 April 2009).
13. S. Speares, 'ECJ Rejects Pollution Directive Plea', Lloyd's List, 3 June 2008.
14. For political reasons, a challenge by a non-EU member state is unlikely to materialise.
15. Arts. 211(4) and 21(2) of the LOS Convention. Note, though, that the position in the territorial sea may not be that simple. There is an argument to the effect that parties to MARPOL 73/78 must be taken to have accepted its provisions in their entirety, even to the territorial sea, and that the LOS Convention does not change this.
16. C. de la Rue, Shipping and the Environment (Lloyd's of London Press, 2009), pp. 1124-1127.
17. See, however, other commentators' interpretation of Arts. 19(2)(h) and 211(4) of the LOS Convention, to the effect that a lower threshold of 'serious negligence' has the effect of hampering innocent passage, e.g. T. Mensah, 'Sovereign Rights in Legislation of Member States under UNCLOS and MARPOL', Eighth Cadwallader Annual Memorial Lecture, 4 October 2005, transcript available at (last accessed 2 April 2009).
18. Art. 19(2)(h) of the LOS Convention.
19. Arts. 42(1)(b) and 211(5) of the LOS Convention.
20. It is not altogether clear that Art. 218(1) provides for prescriptive jurisdiction, given that it appears in the section on enforcement jurisdiction. Most commentators agree that prescriptive jurisdiction can be implied for the port state, though it would appear that this must be limited to the prescription of applicable international rules and standards.
21. T.L. McDorman, 'Port State Enforcement: A Comment on Article 218 of the Law of the Sea Convention', Journal of Maritime Law and Commerce, Vol. 28, 1997, p. 315.
22. Art. 218(1) of the LOS Convention.
23. H. Ringbom, The EU Maritime Safety Policy and International Law (Leiden: Martinus Nijhoff, 2008), p. 358.
24. Division for Ocean Affairs and the Law of the Sea (DOALOS), Enforcement by Coastal States: Legislative History of Article 220 of the United Nations Convention on the Law of the Sea (New York: United Nations, 2005).
25. M.H. Nordquist (ed.), United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. IV (Leiden: Martinus Nijhoff, 1991), pp. 279-302. For details, see the forthcoming article by the present author, 'The EU Ship- Source Pollution Directive and Coastal State Jurisdiction over Ships', Lloyd's Maritime and Commercial Law Quarterly (forthcoming 2010).
26. Similarly, enforcement jurisdiction in straits used for international navigation would be conditioned by Art. 233 of the LOS Convention, which refers to the international rules contemplated by Art. 42(1). Even then, enforcement would be permitted only when 'major damage to the marine environment of the straits' is caused or threatened. On how the straits state's powers cannot be broadened by reference to Art. 220(1).
27. E.J. Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (The Hague: Kluwer Law International, 1998), p. 190.
28. Ringbom, The EU Maritime Safety Policy and International Law, pp. 360-366.
29. C.P. Mooradian, 'Protecting "Sovereign Rights": The Case for Increased Coastal State Jurisdiction over Vessel-Source Pollution in the Exclusive Economic Zone', Boston University Law Review, Vol. 82, 2002, pp. 783-794.
30. McDorman, 'Port State Enforcement: A Comment on Article 218', pp. 321-322.
31. It is conceivable that to avoid the limitations of the Art. 220 enforcement provisions, coastal states might seek to characterise any national measure within the EEZ as a strictly resource protection measure, as opposed to merely for pollution control.
32. D. Bodansky, 'Protecting the Marine Environment from Vessel-Source Pollution: UNCLOS III and Beyond', Ecology Law Quarterly, Vol. 18, 1991, p. 766, citing US practice to this end. As to US practice.
33. Udell, chapter 14 in this book. Another strategy could be to re-characterise the offence by making the entry into port or the territorial sea itself the relevant offence if the ship has not complied with national requirements on discharge or operational procedures while in the EEZ.
34. Ringbom, The EU Maritime Safety Policy and International Law, p. 365.
35. The same limitation applies even to violations committed within the territorial sea, except if the act of pollution is wilful and serious; Art. 230(2) of the LOS Convention.
36. Directive 2005/35/EC, Art. 9.
37. Ringbom, The EU Maritime Safety Policy and International Law, p. 442. The present author deals with this point further in the article 'The EU Ship-Source Pollution Directive and Coastal State Jurisdiction over Ships' (see footnote 26 above).
38. And here, if the European Commission or the EU member states do not agree, they would simply suggest that it is up to other states to challenge their interpretation in this matter. But note my reservation in footnote 15 above.
39. For the 1974 International Convention for the Safety of Life at Sea, with its Protocol of 1988, annexes and amendments, see: SOLAS - Consolidated edition 2004 (London: IMO, 2004).
40. For fuller analysis, see R.C. Beckman, 'PSSAs and Transit Passage-Australia's Pilotage System in the Torres Strait Challenges the IMO and UNCLOS', ODIL, Vol. 38, 2007, pp. 325-357.
41. IMO Resolution MEPC.133(53), of 22 July 2005.
42. Marine Notice No. 8/2006, May 2006, available at (last accessed 2 April 2009).
43. Marine Notice No. 16/2006, October 2006, available at (last accessed 2 April 2009).
44. Beckman, 'PSSAs and Transit Passage', p. 337. See also statement of the Singapore Permanent Representative to the United Nations at the UN General Assembly Debate on Agenda Item 77(A), 'Oceans and the Law of the Sea', 10 December 2007, available at (last accessed 2 April 2009).
45. Beckman, 'PSSAs and Transit Passage', p. 345.
46. See Art. 42(1)(b) of the LOS Convention. Australia may argue that as a matter of interpretation, its actions are well within the generally-accepted international rules and standards, and thus there is no excess of jurisdiction; see also footnote 33 above.
47. Marine Notice No. 7/2009, April 2009, available at (last accessed 27 April 2009).
48. As argued above, coastal states retain their sovereign prerogative to deny access into port or to impose conditions for entry, but it remains questionable if they can admit the ship into port and then impose penalties for offences taking place outside their jurisdiction.
49. Among other initiatives, the adoption of new pro-environmental measures relating to PSSAs, ballast water organisms, anti-fouling paints, enhanced liability and compensation, pollution by hazardous noxious substances and bunker fuel, wreck removal and soon, ship recycling and possibly greenhouse gas emissions from ships, cannot but testify to a fairly high level of active international rule-making.
50. See the points made by the present author to those ends, in Alan Khee-Jin Tan, Vessel Source Marine Pollution: The Law and Politics of International Regulation (Cambridge University Press, 2006), pp. 358-363 and 379-383.
51. The broader question of lack of incentives (or 'dissuasive effects') for actors in the maritime industry is well known to the European Commission, and there is every reason to believe that the dispute over the Ship-Source Pollution Directive may well relate to the shipping industry's fear that the European Commission is seeking to weaken the notion of limitation of liability, even for the civil liability regimes. This is captured by the introduction of 'serious negligence' as a relevant liability threshold, first for criminal liability, and perhaps eventually for breaking limits in the civil liability regimes.