Obligations Of Flag States To Protect The Marine Environment From Vessel Source Pollution Under International Laws, Australian Laws And Experiences For Vietnam.pdf

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LIST OF ABBREVIATIONS

The Convention on the Protection of the Marine Environment of the

Baltic Sea Area

The Protection of the Sea (Prevention of Pollution from

Ships) Act 1983

Authority

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1.1. Marine environment and marine environmental protection ... 10

1.1.1. Definition of marine environment ... 10

1.1.2. The roles of marine environment ... 13

1.1.3. The matter of marine pollution nowadays ... 14

1.1.4. The urgent of marine environmental protection ... 18

1.2. Marine pollution and vessel source pollution ... 22

1.2.1. Definition of marine pollution ... 22

1.2.2. Vessel source pollution – a category of marine pollution ... 23

1.3. Flag States ... 24

1.3.1. Definition of Flag States ... 24

1.3.2. Flag States prescriptive and enforcement jurisdiction ... 26

1.3.3. Flag States role in protection of the marine environment from vessel source pollution ... 28

1.4. Flag States obligations to protect the marine environment from vessel source pollution under the United Nations Convention on Law of the Sea or UNCLOS 1982 ... 29

1.4.1. Flag States prescriptive jurisdiction over protection of the marine environment from vessel source pollution under UNCLOS 1982 ... 29

1.4.2. Flag States enforcement jurisdiction over protection of the marine environment from vessel source pollution under UNCLOS 1982 ... 30

1.5. Flag States obligations to protect the marine environment from vessel source pollution under the International Convention for the Prevention of Pollution from Ships or MARPOL 73/78 ... 30

1.5.1. Flag States prescriptive jurisdiction over protection of the marine environment from vessel source pollution under MARPOL 73/78 ... 31

1.5.2. Flag States enforcement jurisdiction over protection of the marine environment from vessel source pollution under MARPOL 73/78 ... 34

1.6. Flag States obligations to protect the marine environment from vessel source pollution under the Convention on the Protection of the Marine Environment of the

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Baltic Sea Area or Helsinki Convention ... 47

1.6.1. Overview of Helsinki Convention ... 48 1.6.2. Flag States obligations to protect marine environment from vessel source pollution under Helsinki Convention ... 50 1.6.3. Flag States enforcement jurisdiction over protection of the marine environment from vessel source pollution under Helsinki Convention ... 51

CONCLUSION TO CHAPTER 1 ... 54 CHAPTER 2. FLAG STATES OBLIGATIONS TO PROTECT THE MARINE ENVIRONMENT FROM VESSEL SOURCE POLLUTION UNDER THE COMMONWEALTH AUSTRALIAN LAWS ... 57 2.1. Reasons for choosing the Commonwealth Australian laws ... 57 2.2. The Commonwealth Australian legal framework for the protection of the marine environment from vessel source pollution ... 57 2.3. The implementation of Flag States obligations to protect the marine environment from vessel source pollution by Australia ... 59

2.3.1. Flag State prescriptive jurisdiction over protection of the marine environment from vessel source pollution under the Commonwealth Australian laws ... 59 2.3.2. Flag State enforcement jurisdiction over protection of the marine environment from vessel source pollution under the Commonwealth Australian laws ... 59

CONCLUSION TO CHAPTER 2 ... 71 CHAPTER 3. FLAG STATES OBLIGATIONS TO PROTECT THE MARINE ENVIRONMENT FROM VESSEL SOURCE POLLUTION UNDER VIETNAMESE LAWS AND RECOMMENDATIONS TO IMPROVE THEM .. 73 3.1. The participation of Vietnam in MARPOL 73/78 and its role to implement MARPOL 73/78 ... 73 3.2. The implementation of Flag State obligations to protect marine environment from vessel source pollution by Vietnam ... 74

3.2.1. Flag State prescriptive jurisdiction over protection of the marine environment from vessel source pollution under Vietnamese laws ... 74 3.2.2. Flag State enforcement jurisdiction over protection of the marine environment from vessel source pollution under Vietnamese laws ... 74

3.3. Comments on the implementation of Flag State obligations to protect the marine environment from vessel source pollution by Vietnam ... 81

3.3.1. Comments based on the legal forms ... 81 3.3.2. Comments based on the legal contents ... 81

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3.4. Recommendations to improve the implementation of Flag State obligations to

protect the marine environment from vessel source pollution by Vietnam ... 83

3.4.1. Recommendations based on the legal forms ... 83

3.4.2. Recommendations based on the legal contents ... 84

CONCLUSION TO CHAPTER 3 ... 87

SUMMARY OF CONCLUSIONS ... 89

BIBLIOGRAPHY ... 91

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INTRODUCTION 1. Problem statement

Marine environment is essential for our planet’s ecosystem. The most important role of the marine environment is to ensure life conditions for humans. The marine environment has a strong interaction with other natural factors such as air, coastal land, rivers, lakes and bays. It is also important for the bio-geo-chemical cycle creating elements for human life such as water, carbon, sulfur, phosphorus, oxygen and nitrogen. The marine environment acts as an oxygen refueling apparatus for the atmosphere, a place to absorb carbon dioxide emissions, and a constant supply of fresh water. The second important role of the marine environment is to provide resources. The marine is not only rich in biological resources but also has extremely large non-biological reseources which are mineral reserves. Other important roles of the marine are ensuring facilities for human activities such as tourism, sports and relaxation; providing marine

traffic; absorbing and assimilating land-based discharges.

Although the marine environment is essential for our planet, sadly it is polluted heavily and if nothing were to be done, the marine environment would be destroyed and there would be no guarantee for human and other species’ life on Earth. The earliest source of marine pollution that humans were aware of was pollution from vessels. Pollution from vessels became a potential threat in the 1950s of the twentieth century. On 18/3/1967, the oil tanker Torrey Canon sank in the Manche Strait between Cornwall (England) and Bretagne (France) dumping 120,000 tons of oil into the sea and seriously polluting the marine environment. The Torrey Canon case marked a turning point in people’s awareness of pollution disasters, measures to prevent oil pollution spilled from ships as well as the weakness of the compensation system at that time that motivated people to perfect the legal system for the prevention of marine pollution.

Pollution from vessels comes in two kinds, including accidental and operational. Whether it is accidental or operational pollution from vessels, the role of Flag States always comes first in order to protect marine environment from vessel-source pollution. Our maritime zones are divided into two parts. The first one which is under national jurisdiction include internal water, territorial sea, contiguous zone, exclusive economic zone, and continental shelf. The second one which is beyond national jurisdiction include the high sea and the Area. As going seaward further, the jurisdiction of Coastal States decreases while the jurisdiction of Flag States increases. Flag State is the State whose flag the vessel flies under; therefore the vessel has to comply with the laws and regulations of the State which it flies the flag. Flag States can lay down legal norms (legislative/prescriptive jurisdiction) and validly enfore the laws (enforcement

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jurisdiction). It cannot be denied that Flag States play such an important role in protecting the marine environment from vessel-source pollution.

The International Maritime Organization (IMO) has adopted so far many treaties, one of which is the International Convention for the Prevention of Pollution from Ships (MARPOL) in 1973 and its protocol in 1978. This Convention specializes in the obligations of Flag States to prevent vessel-source pollution. Moreover, the third United Nations Conference on Law of the Sea adopted the UNCLOS 1982 which also regulates the obligations of Flag States in Article 211 and 217. Being a member of these two global multilateral Conventions, Vietnam – as a Flag State – has to comply with the regulations of both MARPOL 73/78 and UNCLOS 1982. However, Vietnam has not paid enough attention to the laws and regulations in the field of environment in general and marine environment in particular. Vietnamese laws still lack several Flag State obligations. As a Flag State whose laws and regulations are complied with by vessels flying under Vietnamese flag, our laws and regulations on Flag State obligations must be clear, in detail, in accordance with international Conventions that Vietnam is a member of and must be effectively validly enforced. Therefore, it is necessary to analyze the obligations of Flag States to prevent vessel source pollution under international laws, as well as under a foreign national law in order to see how that nation develops its laws on Flag States obligations and validly enforces them. This will be experiences for perfecting Vietnamese laws.

From those reasons above, we decided to choose the topic of “Obligations of Flag States to protect marine environment from vessel – source pollution under international laws, Australian laws, and experiences for Vietnam”.

2. Literature of review

Researches on marine environmental pollution have been conducted by many authors in the world. Most of these researches are about land-based pollution sources. Since land-based sources account for the most significant amout causing marine pollution, the role of coastal States to protect marine environment is the most important. Therefore, most of the researches concentrate on marine pollution from the land and the obligations of coastal States.

However, apart from the land-based marine pollution, there are also other five categories of marine pollution, one of which is pollution from vessels. Unlike land-based pollution and the obligations of Coastal States having become a “hot” topic of abundant studies, vessel-source pollution and the obligations of Flag States only appear in a few studies. It is very difficult to find a complete study that discusses deeply and clearly the obligations of Flag States to protect marine environment from vessel-source

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pollution. Following are the highlight documents that relate to our academic study’s topic.

Yoshifumi Tanaka (2019), The International Law of The Sea, Cambridge University Press: This book specializes in international law of the sea and consists of a

chapter of protecting the marine environment (Chapter 8). In this chapter, the book indicates MARPOL but as a whole. It only introduces how many Annexes MARPOL has and which category of vessel - source pollution each Annex regulates. It does not analyze Flag State obligations to prevent pollution from ships in detail. However, the book does analyze clearly Flag State obligations under UNCLOS 1982. It clarifies Flag State prescriptive jurisdiction and enforcement jurisdiction in accordance with UNCLOS regulations.

Hanoi Law University (2019), International Law of the Sea, Judicial Publisher; and Ho Chi Minh City University of Law (2020), Public Interntional Law (Second book), Hong Duc Publisher: Both books have the content of protecting marine

environment. However, these books do not analyze Flag State obligations under MARPOL 73/78. They only mention Flag States obligations under UNCLOS 1982 but in such a general way by “listing out” Flag State obligations regulated in UNCLOS 1982 rather than analyze them. Moreover, these books do not indicate the division between prescriptive and enforcement jurisdiction of Flag State to prevent vessel source pollution. The Hanoi Law University does mention Vietnam’s legal framework of marine environmental protection but still in a very general way.

Nguyen Hong Thao (2004), “Bao ve moi truong bien – Van de va Giai phap”, National Political Publisher: This book indicates MARPOL. It first introduces the aim

and structure of MARPOL. It also depicts Flag State right to inspect equipment and structure of vessels and the right to conduct itself or to cooperate with other port and coastal States in investigating, prosecuting and sanctioning in accordance with its domestic laws to prevent violations of the Convention. The book then analyzes each Annex of MARPOL but rather in a way of repeating what have been regulated in MARPOL. It does not distinguish between Flag State prescriptive and enforcement jurisdiction to prevent vessel source pollution and also it does not group the regulations into different categories in order to clarify Flag State obligations. However, this book has clarified Vietnam’s legal frameworks of protection of marine environment and prevention of marine pollution. It also analyzes the implementation of international Conventions on marine environment in Vietnam. The book states that although Vietnam has published several national legal documents in order to give effect to MARPOL, there are still many difficulties and the awarness in this field is not yet enough. The Vietnam’s legal frameworks and Vietnam’s implementation of

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international Conventions on marine environment in the book can be references for our study.

Patricia Birnie, Alan Boyle, and Catherine Redgwell (2009), International Law and the Environment, Third Edition, Oxford University Press: This book clarifies

regulations of vessel pollution in which it indicates jurisdiction under MARPOL. However the indication does not clarify Flag States prescriptive and enforcement jurisdiction to prevent vessel-source marine pollution but rather surrounding the problem that although MARPOL does go some way towards promoting more effective enforcement by flag states, it does not entirely remove the practical problem which in many cases have made port-state control the more realistic method of ensuring higher levels of compliance. Moreover, this book introduces the Baltic regional seas agreement, which is the Helsinki Convention for the Protection of the Marine Environment of the Baltic Sea Area. It states that Helsinki Convention is the first regional-seas treaty to cover control of marine pollution from all sources and had an important influence on the formulation of the marine pollution provisions of the 1982 UNCLOS and of UNEP’s regional seas treaties. It also mentions that the Helsinki Convention incorporates many of the Rio principles such as the precautionary principle and the polluter-pays principle and is also the first regional-seas agreement to be revised in accordance with Agenda 21 commitments. These information has a deep affection for us because we see the Helsinki Convention as a well-developed and worth-analyzing regional sea treaty for our study. However, the book only introduces the general information of the Helsinki Convention but does not analyze how Flag State obligations to prevent vessel source pollution are regulated in this Convention.

Abdulla Ahmed Adham (2011), “Flag, coastal and port state jurisdiction over the prevention of vessel source pollution in International Law: analysis of implementation by the Maldives”, Doctor of Philosophy thesis, Faculty of Law, University of Wollongong: This is the only thesis so far that clarifies clearly Flag State

prescriptive and enforcement jurisdiction over the prevention of vessel source pollution under MARPOL 73/78. The thesis stated that under its prescriptive jurisdiction, Flag State has the general obligation to protect and preserve the marine environment from vessel source pollution; the obligation to formulate national laws for the prevention of vessel source pollution; and the obligation to communicate national laws and relevant information to the IMO. Moreover, under its enforcement jurisdiction, the thesis divides Flag State obligations into six categories: the obligation to regulate discharge of pollutants from vessels; the obligation to detect unlawful discharges from vessels; the obligation to conduct statutory surveys; the obligation to issue and endorse onboard documentation on pollution control; the obligation to ensure harmful substances are

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appropriately packaged, labelled and stowed onboard; and the obligation to investigate reports by other states of non-compliance by vessels. After consideration, we come to the conclusion that these categories are clear and accurate and we decide to follow them as reference. Furthermore, the thesis also analyses the implementation of Flag State prescriptive and enforcement jurisdiction by the Maldives, which the author clarifies Maldives’ laws and regulations on Flag State obligations to prevent vessel source pollution. The Maldives’ laws and regulations on Flag State obligations still lack many provisions and it is the same as Vietnam’s laws and regulations on Flag State obligations. Therefore, we decided to analyze Australian law on Flag State obligations to prevent vessel source pollution, which is a well-developed law in this field and use it as experiences or references for our Vietnamese laws.

Michael White (2007), Australasian Marine Pollution Laws 2nd Edition, The Federation Press: This book analyzes both Australian and New Zealandic laws on

marine pollution, including vessel source pollution. It also specifies in introducing the Australian Protection of the Sea (Prevention of Pollution from Ships) Act 1983 and the Australian Navigation Act 2012, which are the two most important Australian Commonwealth laws on preventing vessel source pollution. Through the analysis, it shows that the Australian Commonwealth laws on prevetion of vessel source pollution are effective. They have implemented MARPOL regulations and are applied reasonably well. This book has given us the idea of comparing between Australian laws and Vietnamese laws on prevention of vessel source pollution; see how the former are considerably more well-developed than the latter; and use the former as experiences for the latter. This book is our guide to analyze Flag State obligations under Australian laws to protect marine environment from vessel source pollution.

Above are the highlight documents of protecting marine environment and preventing vessel source pollution. There are also other documents that may be relevant to the topic:

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Atsuko Kanehara (2008), “Environmental Protection of Ocean and Flag State Jurisdiction”, 8th Conference of SCA Qingdao China, Joint Project “Security of Ocean in Asia” – Building Cooperative Scheme for Environmental Protection in Asian Seas, Second Day May 29, 2008.

Douglas M. Johnson (1981), “The environmental Law of the Sea”, International Union for Conservation of Nature and Natural Resources Gland, Switzerland, No. 1247.

Tamo Zwinge (2011), “Duties of Flag States to implement and enforce international standards and regulations – and measures to counter their failure to do so”, Journal of International Business and Law, Vol. 10, Issue 2, Article 5.

3. Purpose of the study

This study aims to analyze the obligations of Flag States to protect marine environment from vessel source pollution under international laws and foreign national law, thereby providing recommendations for improvement of Vietnam (as a Flag State) on marine environmental protection from vessel source pollution.

To accomplish those purposes, this study performs three following tasks:

First, analyze the obligations of Flag States to protect marine environment from

vessel-source pollution under international laws. The two global multilateral Conventions that regulate the obligations of Flag States are the United Nations Convention on the Law of the Sea (UNCLOS) and the International Convention for the Prevention of Pollution from Ships (MARPOL). By examining these international Conventions, our study will clarify both Flag States legislative jurisdiction and enforcement jurisdiction over the prevention of vessel-source pollution. Besides examing UNCLOS and MARPOL, our study also examines regional treaty that regulates the obligations of Flag States to prevent pollution from ships as regional treaties also play an important role in enhancing global multilateral international treaties. Among many regional treaties in the world, our study selects the Convention on the Protection of the Marine Environment of the Baltic Sea (Helsinki Convention). Analyzing the Helsinki Convention will show how this regional treaty shapes the

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obligations of their member Flag States to protect the marine environment from source pollution and whether new provisions are included in order to suit the regional concerns.

vessel-Second, analyze the obligations of Flag States to protect marine environment

from vessel-source pollution under foreign national legal system. This study cannot be completed without the analyse of national laws as Flag State is the one establishes legislative jurisdiction and ensures the enforcement jurisdiction over vessels flying under its flag. Among more than hundreds of national laws in the world, our study selects Australian Commonwealth Act on the protection of the sea (prevention of pollution from ships). Analyzing Australian Commonwealth Laws will show legislative and enforcement jurisdiction over vessels flying Australian flag on the prevention of vessel source pollution.

Third, offering recommendations for improving Vietnamese Laws on marine

environmental protection from vessel source pollution.

4. Objectives and Scope of the study 4.1. Objectives of the study

The obligations of Flag States to protect marine environment from vessel source pollution under international laws.

The obligations of Flag States to protect marine environment from vessel source pollution under a foreign national laws.

The obligations of Flag States to protect marine environment from vessel source pollution under Vietnamese laws.

4.2. Scope of the study

The scope of this study is only within Flag States which under whose flag the vessel flies. Coastal States and Port States are beyond the scope of this study. Moreover, this study only covers vessel source pollution which is a type of marine pollution originating from the operation of vessels. Other types of marine pollution such as pollution from land-based sources, pollution from seabed activities within and beyond national jurisdiction, pollution from dumping, and pollution from or through the atmosphere do not belong to the scope of this study. Furthermore, the legal documents which regulates the obligations of Flag States to protect marine environment from vessel source pollution will be examined in this study are UNCLOS 1982, MARPOL 73/78, Helsinki Convention (a regional treaty), Australian Commonweath Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (a foregin national law), and Vietnamese laws.

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The comparative method is significantly conducted to compare among international laws, the Commonwealth of Australian law, and Vietnamese laws on protecting marine environment from vessel source pollution. By comparison, it will be shown how Vietnamese laws lack so many regulations on protecting the marine environment from vessel source pollution

The synthetic method is applied to synthesize the analyses and comparisons, thereby clarifying the matters from a legal perspective and providing recommendations.

6. Scientific and pratical values of the study

The study clarifies Flag States obligations within legislative and enforcement jurisdiction to prevent marine pollution from vessels. By comparing Australian Commonwealth laws and Vietnamese laws on protecting the sea from vessel source pollution, it will be shown that Vietnamese laws on protecting marine environment from vessel source pollution still have many shortcomings. As a member of global multilateral treaties such as UNCLOS 1982 and MARPOL 73/78 and also as a role of a Flag State that creates legislation and validly enforces its laws over vessels flying under Vietnamese flag, Vietnamese laws on protecting marine environment from vessel-source pollution need improving. This whole study can also be a helpful reference for those who study, research or work in the field of law of the sea or marine environment.

7. Structure of the study

In addition to the Introduction and the Bibliography, this study consists of 03 chapters as follow:

Chapter 1. General comprehensions and Flag States obligations to protect

marine environment from vessel source pollution under international laws

Chapter 2. Flag States obligations to protect marine environment from vessel

source pollution under the Commonwealth Australian laws

Chapter 3. Flag States obligations to protect marine environment from vessel

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source pollution under Vietnamese laws and recommendations to improve them

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CHAPTER 1: GENERAL COMPREHENSIONS AND FLAG STATES OBLIGATIONS TO PROTECT MARINE ENVIRONMENT FROM VESSEL

SOURCE POLLUTION UNDER INTERNATIONAL LAWS

PROTECTION

1.1.1. Definition of the marine environment

There is currently no standardized definition of “marine environment” in

international law. Therefore, the research team will make use of the legal definition of

“marine environment” included in various national laws while discussing this topic. In order to provide the most precise and comprehensive definition of “marine environment”, we will also include the opinions of some Western and Vietnamese

scholars.

Firstly, the research team will discuss the term of “marine environment” as it

appears in several nations’ legal systems.

The term “marine environment” means any or all of the following: the coastal

zone, as defined in section 304(1) of the Coastal Zone Management Act of 1972 (16 U.S.C. 1453(1)); the seabed, subsoil and waters of the territorial sea of the United States, including the Great Lakes; the waters of any zone over which the United States asserts exclusive fishery management authority; the waters of the high seas; and the seabed and subsoil of and beyond the Outer Continental Shelf1.

In the International Seabed Mineral Management Decree 2013 of the Goverment of Fiji2, the term “marine environment” means the environment of the sea,

and includes the physical, chemical, geological, biological and genetic components, conditions and factors which interact and determine the productivity, state, condition and quality of the marine ecosystem, the waters of the seas and oceans and the airspace above those waters, including the seabed and ocean floor and subsoil thereof.3

Vietnamese law as it stands does not define legal words pertaining to “marine environment”. Vietnam’s Law on Natural Resources and Environment of the Sea and Islands 2015 also does not have a definition of the “marine environment”. Starting from the concept of “environment” with its overall characteristics, Vietnam’s Law on

1 Cornell Law School – Legal Information Institute, “Definition: Marine Environment (accessed on 28/02/2023).

2 The Republic of Fiji is an island country in Melanesia, part of Oceania in the South Pacific Ocean. 3 See more at

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Environmental Protection 2014 defines: “The environment is a system of natural and man-made material factors that have an impact on the existence and development of humans and organisms”. In our perspective, this definition of the environment is quite

completed, which affirms that not only people but also living things are at the center of protection activities. Different from the definition in the Law on Environmental Protection in 2005, this definition recognizes and evaluates environmental factors and

interactions in a “system”. From the perspective of territorial space, the environment

can be classified into marine environment, land environment, air environment, water environment... Thus, the marine environment is an integral part of the general environment.

Secondly, the research team will present some Western and Vietnamese

scholars' perspectives on the term “marine environment”. From these standpoints, we will conclude a definition of “marine environment” that is quite adequate and

appropriate so that we will be able to use this definition throughout the scientific research thesis.

From our perspective, the maritime environment serves as a site for waste disposal, communication, and the exploitation of biotic and non-living resources. It also plays a crucial part in preserving Earth’s livability. As a result, it is clear that the marine environment also comprises estuaries, mangrove areas, tidal zones, swamps, intertidal flats, wet soils, and other living and non-living resources in addition to sea areas with their physical and chemical properties. Therefore, in addition to the need to preserve the main component of the marine environment, which is the sea, attention to the areas mentioned above cannot be ignored because of any degradation in the estuaries, lagoons, coastal areas, uncontrolled development, can adversely affect the entire marine environmental system. Besides, the marine environment is also a system of physical, chemical, biological processes that interact and operate to maintain the balance of marine flora and fauna ecosystems and ensure different uses of the sea by humans.

The above definitions are collected from the reference book named “Bao ve moi truong bien – Van de va Giai phap”, which was summarized by Dr. Nguyen Hong

Thao from analyzing the marine environment based on two aspects. First, in terms of geographical extent, the marine environment is the entire ocean water area of the Earth with all that is in it. The marine environment of a country can be understood as an area of sea or ocean extending from the coast and islands up to the agreed maritime boundary or to the limit of 200 nautical miles of the exclusive economic zone or to the outermost limit of its continental shelf. Second, in terms of environmental scope, the definition of marine environment is much broader. Pursuant to Article 1.4 of the

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United Nations Convention on the Law of the Sea 1982 (UNCLOS 1982), the marine environment is understood to include biological resources, marine ecosystems and sea water quality and marine landscape.

However, the definition of marine environment can be extended because there is now a lot of consensuses with the view that sea and ocean should not be considered as an independent entity because they also interact with the atmosphere above the sea

surface, with the seafloor, and with the continent from which materials enter the sea.

Therefore, the expansion of the definition of marine environment is extremely urgent to meet the requirements of accurately assessing sources of marine environmental pollution, factors that degrade and destroy the marine environment in the Earth environment.

In addition, human activities are also part of the marine environment, and they directly affect the quality of coastal areas, causing environmental degradation within the coastal zone. In Chapter 17 of Action Program 21, the marine environment definition has also been updated in a timely manner so that it is more and more

complete and consistent with human perception: “The marine environment is the region comprising the oceans and seas and coastal areas forming a whole, a fundamental component of the global life-sustaining system, and a useful asset that provides opportunities for sustainable development”. We see that although this

definition is brief, it focuses on emphasizing the link between environment and people and development. The marine environment here is understood as the natural environment of the sea under the influence of human activities in the development process. Therefor the promotion and facilitation of education and training programs in integrated coastal and marine management and sustainable development for leaders, indigenous peoples, fisherfolk, women, and youth, among others, should be a priority for coastal states. With adequate consideration for traditional ecological knowledge and socio-cultural values, management and development challenges should be included in school curriculum and public awareness initiatives. Besides, international institutions, whether subregional, regional, or global, should assist coastal States when they request assistance in the aforementioned areas, paying particular attention to developing nations.

After researching and referring to the points introduced above, the research team would want to provide a succinct and comprehensive summary of the maritime environment's definition. The marine environment is an essential component of the general environment, it includes conditions and factors which interact and determine the productivity; the continent from which materials enter the sea; condition and quality of the marine ecosystem; the waters of the seas and oceans and the airspace above those

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waters, including the seabed and ocean floor and subsoil them. Additionally, human existence and their development also have an impact on the marine environment.

1.1.2. The roles of marine environment.

The ocean and its estuaries, the seabed and its subsoils, all marine wildlife, sea and coastal habitats are all components of the marine ecosystem. The marine environment, which comprises 90% of the biosphere and accounts for 70% of the Earth's surface, is the major and the greatest source of biodiversity4.

The environment of Earth is fundamentally different from that of other planets in the solar system since 71% of its surface is covered by oceans and seas. Scientists agree that the Earth's oceans and seas are where life first began; without them, modern life as we know it may not have existed. Because seas and oceans play a significant role in supporting life on Earth. It acts as a massive "heater" and "air conditioner" that balances the prevailing temperature magnetic poles on Earth and softens the fierce effects of the weather such as storm, flood, flood, drought, etc. It provides an endless source of water vapor for the atmosphere, which creates clouds and rain to support all living species, including human beings. Without seas and oceans, the continents will become arid deserts, the habitat of humans on Earth will be harsher.

The marine ecosystem performs a variety of essential environmental roles, including regulating the climate, preventing erosion, storing, and dispersing solar energy, absorbing carbon dioxide, and maintaining biological control. Seas and oceans have once again demonstrated their crucial worldwide role in the backdrop that humanity is experiencing and attempting to cope with the unforeseen repercussions of climate change. The capability of oceans and seas to absorb and store excess CO2 in the greenhouse gas group from the Earth’s atmosphere is currently 30%, and if they are kept healthier, this capacity will rise5.

In addition to being the origin of life on Earth, the marine environment serves a number of other crucial roles for humans: With more than 160,000 animal species and 10,000 plant species, the marine and ocean ecosystem offers an unending source of resources. Additionally, there are a lot of minerals, particularly oil and gas. Many nations are using tides more and more to create clean, renewable electricity. The marine 4 “Ocean”, NOAA – National Oceanic and Atmospheric

Administration,

[ (accessed on 31/01/2023).

5 Wayne Lewis (2021), “Could the ocean hold the key to reducing carbon dioxide in the atmosphere?”, University of California, Los Angeles [ (accessed on 20/01/2023).

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environment and the ocean become a highly significant transit route when they are regarded as a “bridge connecting the continents”. Additionally, the sea and ocean are also attractive resorts and tourist destinations. It is also a significant driver of economic growth, social progress, and quality of life.

Because the maritime environment is so essential to the ecosystem, it needs to be safeguarded, conserved, and valued appropriately. Seas and oceans must be maintained so that they are ecologically diverse, dynamic, safe, healthy, and productive.

1.1.3. The matter of marine pollution nowadays

The ship accidents that have damaged the maritime environment were examined through the collecting and classification of a sizable amount of accident information. These incidents primarily involved cargo or commercial ships. Data on ship accidents from 2012 to 2021 was gathered from a variety of international sources, including the Global Integrated Shipping Information System (GISIS) of the IMO6, press stories, and investigative reports, showed that the marine environment was negatively impacted by 582 container ship accidents in the last ten years, with a majority of incidents taking place in ports, harbors, piers, anchorages, berths, and open waters. Accidents generally fell into the collision, grounding, and fire categories. Because of the wide diversity of containerized goods, the risk of marine contamination from ship accidents is complicated. Heavy metal, plastic fiber, fuel leaks, and dangerous and noxious compounds from accidents can contaminate entire marine habitats and continue to build up in the food chain, posing a threat to human health over time.

Rapid innovation in maritime transportation has been a result of the energy revolution. Diesel supplanted coal as the primary energy source in the 1940s, advancing the growth of the maritime sector7. Ninety percents of cargo is still shipped, despite a substantial increase in the amount of cargo being moved8. A significant turning point in marine transportation was the introduction of container ships. From the 1960s on, container ships gradually entered the liner sector as a result of technological advancements in the maritime business9. Since there is no need to unload 6 International Maritime Organization.

7 Gelina Harlaftis (2020), “What is maritime history?”, Volume 32, Issue 2, International Journal of

Maritime History [ (accessed on

20/01/2023).

8 Kezhong Liu (2021), “A systematic analysis for maritime accidents causation in Chinese coastal waters using machine learning approaches”, Volume 213, Ocean & Coastal Management [ (accessed on 20/01/2023).

9 Frank Broeze (2002, updated in 2017), “The Globalisation of the Oceans: Containerisation from the

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or reload cargo from a truck before transferring it to a container ship, container ships are now the most popular seaborne vehicles for non-bulk cargo. Due to their practicality for intermodal freight transportation, container ships are frequently utilized in maritime commerce.

Despite the success of seaborne trade, there have been numerous cargo vessel mishaps. The International Maritime Organization (IMO) - Global Integrated Shipping Information System (GISIS) data on container vessel accidents displays the spatial distribution of container vessel incidents from 2010 to 202010. According to the aforementioned data, East Asia has the highest rate of maritime accidents, followed by Southeast Asia’s coast and Europe. The sites of the top container ports in the world are also in the accident-prone marine zones. The more successful the container trade is in a given port, the more frequently accidents take place there. As a result, there has to be more focus on the problem of container ship mishaps and planning for emergency response in the busy inshore waterways.

Using the data, calculations revealed that 82.98% of container vessel incidents were classified as serious or higher, with 54.49% of those being very serious. Accidents at these depths are quite likely to result in containers sinking, damaging the nearby marine environment, and even having larger effects because of ocean currents. As a result, whenever an accident happens, it may pose a serious hazard to the marine ecosystem and should be handled carefully. The X-Press Pearl container ship catastrophe in Sri Lanka in May 2021, which resulted in a spill of about 1680 tons of needles, caused a sensation around the world. It is more difficult to clean up after substances have been exposed to combustion and chemicals and to analyze the damage because of the increased chemical complexity that results11. Additionally, during the COVID-19 pandemic, when cleanup was sluggish, nurdles were carried by southwest monsoon currents all the way to Sri Lanka's east coast12. Due to their ability to be 1950s to the Present”, Liverpool University Press; Marc Levinson (2006), “The box: how the shipping container made the world smaller and the world economy bigger”.

10 The data mentioned in this paragraph were collected and researched by the author Shuyan Wan (2022), “Emerging marine pollution from container ship accidents: Risk characteristics, response strategies, and regulation advancements”, Volume 376, Journal of Cleaner Production

[ (accessed on 15/01/2023).

11 A. De Vos (2021), “The M/V X-Press Pearl nurdle spill: contamination of burnt plastic and unburnt nurdles along Sri Lanka's beaches”, American Chemical Society [ (accessed on 15/01/2023).

12 Charitha Pattiaratchi and Sarath Wijeratne (2021), “Oceanographic aspects of the X-Press Pearl maritime disaster”, University of Western Australia

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consumed by, injure, or kill marine organisms, these nurdles can be transported and bioaccumulated in the food chain.

Thus, given the complicated conditions of maritime catastrophes, even the sinking of non-dangerous goods, such as nurdles, might represent a hazard to marine and coastal ecosystems. The lack of a reporting requirement for the loss of non-hazardous cargo, the concealing of the loss of dangerous cargo, or other management or regulatory violations has made it more challenging to calculate the environmental risks associated with container sinking13. There is a lag in the detection of marine pollution as a result of the aforementioned circumstance as well as the latent nature of some ecological dangers. When pollutants are found, irreparable damage will have been done, which makes it more challenging to perform a spill response effectively.

The cruise lines do not even matter in the maritime sector. Cruise ships, despite making up a relatively minor portion of the industry, contribute significantly to marine and ocean pollution in addition to offering entertainment. The carbon emissions from all of Europe's cars are ten times lower than those from a luxurious cruise ship.

A cruise ship with a 3000-passenger capacity produces 150,000 gallons of sewage and graywater, which is enough to fill 10 swimming pools14. On a cruise, numerous other hazardous pollutants are produced, including bio-waste that contains viruses and oily bilge water.

Carnival Cruise Lines was penalized with a 60 million dollars punishment in 2019 for evading justice and illegally discharging large amounts of oil, plastics, and trash into the ocean15.

More than 26 million people received services from the cruise sector in 201816. In the upcoming years, it is anticipated that the industry will continue to expand. According to environmental organizations, taking a cruise excursion causes the passenger's carbon footprint to triple because these “floating towns” generate about 15 [ aster] (accessed on 15/01/2023).

13 B. Adele (2019), “Lost at Sea: How Shipping Container Pollution Affects the Environment”, Ship Technology [ (accessed on 15/01/2023).

14 Zahra Ahmed (2022), “8 Ways Cruise Ships Can Cause Marine Pollution”, Marine Insight [

%20luxury%20cruise%20ship%20releases,generated%20on%20a%20cruise%20trip] (accessed on 22/01/2023).

15 Ibid [10] 16 Ibid [10]

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gallons of hazardous chemical waste every single day.

For Vietnam, the situation of marine pollution from ships (mainly oil) is no better. According to statistics, from 1992 to November 2021, 190 oil spill incidents occurred in Vietnam (of which 37 cases were offshore accounted for 19%, 88 cases were inshore accounted for 47% and 65 cases were on land accounted for 34%)17, causing serious damage to ecosystems and biological resources in sea areas, negatively affecting the sustainable development of the economy and the stability of society. In the waters of the Truong Sa archipelago and the sea area with international shipping lanes, the oil content of the sea water is high, second only to the Gulf of Tonkin. Through studying satellite images, many oil slicks can be seen on international maritime routes along Vietnam's waters. This is the amount of oil released from the tanker (functional waste) that accounts for 0.7% of the vessel's tonnage during normal transportation. In addition, marine accidents causing oil spills have also been recorded, such as18:

A typical example is the oil spill of the ship Formosa One that occurred in 2001 at Ganh Rai Bay, Ba Ria-Vung Tau Province. Due to not complying with the instructions of the Vung Tau Port Authority, the Formosa One ship crashed into the Petrolimex-01 vessel, spilling about 900m3 of oil, equivalent to 750 tons of DO oil. Another case which was happened in 2003, the ship Hong Anh (Vietnam), carrying 600 tons of oil from Cat Lai to Vung Tau, was sunk by waves, causing an oil spill that polluted Can Gio waters. Or in October 2007, the New Oriental ship was wrecked in the waters of Tuy An (Phu Yen), oil spilled on the sea covering an area of about 25 hectares. It is not over yet, in November 2017, 9 cargo ships were sunk and ran aground due to typhoon No. 12 knocking into the waters of Quy Nhon (Binh Dinh). After being hit or sunk, oil from these ships was spilled into the Quy Nhon Sea. And in 2019, in the area of Long Tau River, Can Gio District, Ho Chi Minh City, there was an oil spill incident of the Vietsun ship carrying 150 tons of oil sunk, 150m3 of FO oil and 20 m3 of DO oil from this ship directly affect the Can Gio protection forest area and aquaculture areas. In addition, many oil spill incidents have occurred such as the incident of an 8,000-ton cargo ship sinking on Long Tau River, Can Gio district, Ho

17Mr. Pham Van Son, General Secretary of the Vietnam Association for Conservation of Nature and Environment said.

18 To Thi Hoa (2022), “What is marine pollution? Law on marine pollution caused by liquid waste”, Minh Khue law firm [ (accessed on 22/01/2023).

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Chi Minh City on October 18, 2019; The sinking of the Thai Nordama Sophia in the Ha Tinh Sea on November 28, 2019 caused the phenomenon of oil clumps drifting on the coast of Ky Loi Commune, Ky Anh District, Ha Tinh Province…

Thus, it can be seen that marine pollution from ships engaged in oil and gas activities is one of the most common causes of marine pollution, but this is not the only cause of marine environmental pollution in our country. According to the authorities, along the coast of Vietnam appeared oil slicks of unknown origin and cause. According to experts, the “culprit” of oil spills in the East Sea may be Vietnamese or foreign oil drilling rigs, oil following ocean currents, or monsoons washed up on Vietnam’s coast. Besides, it is also possible that when the rigs are dismantled, they do not declare otherwise, the oil mouths are not sealed, causing oil spills to pollute the surrounding marine environment.

Despite its size, the ocean shouldn't be used as a landfill. The annual shipping mishaps that result in sunken containers polluting the sea cannot be understated. At the 73rd Marine Environment Protection Committee (MEPC) meeting, the seriousness of the growing marine pollution brought on by sinking containers was acknowledged, but this subject is still in the early stages of discussion. As a result, the goal of our research is to present a thorough analysis of vessel-source marine pollution.

1.1.4. The urgent of marine environmental protection

Marine environmental contamination is currently a problem that affects the entire world. There is still no perfect answer to the severe pollution of the world's oceans. The health and way of life of both humans and animals have been harmed by this. We must take action to avert this predicament as we face the effects and dangers of marine contamination. Here are some methods that we want to suggest in order to somehow protect the marine environment.

Firstly, they have to take strict regulations on fishing activities at sea, a ban on fishing with explosives, electricity, or harmful chemicals are all necessary to prevent the mass death of seafood, which will likely lead to the extinction of some species. As a result, severe penalties must be imposed for purposeful behavior and disregard for the law.

Secondly, it is necessary to plan fishing activities according to zones, clusters, industrial spots, craft villages, etc. To avoid the current situation of rampant, inappropriate, and difficult-to-manage fishing. And so, we need to severely penalize acts of rampant, excessive, non-standard, and legal exploitation.

Thirdly, building a standard wastewater and waste treatment system before being discharged into the environment is also a great idea. Wastewater, waste from agricultural and industrial production activities is a very noticeable source of marine

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water pollution. Therefore, the state needs to require companies to build waste and wastewater treatment systems before discharging into the environment.

Besides the aforesaid ideas, we can also strengthen environmental inspection, examination and supervision, build a monitoring system, assess the level and scope of pollution sources to take timely remedial measures, build systems of embankments, ditches, dikes... to control natural disasters, floods. In addition, it is necessary to use some materials capable of decontamination and disinfection of natural origin to clean the environment, such as: lime, activated carbon… And the most important method is each of us needs to have a sense of preserving the marine environment, not littering the sea, propagating and carrying out coastal garbage clean-up activities.

The sea is a homogeneous environment, a common property of mankind, requiring a close cooperation between countries in order to keep the sea and marine environment clean, so the signing and joining of treaties international in the field of marine environmental protection is inevitable. Some basic international legal frameworks for marine environmental protection can be mentioned as follows:

For Documents, United Nations Convention on the Law of the Sea 1982; 1994

Agreement on the application of part XI of the Convention; Rio de Janeiro Declaration on Environment and Sustainable Development 1992; Action Program 21 (Chapter 17) in 1992; Declaration of the Johannesburg Environmental Summit 2002.

For IMO International Conventions on Marine Pollution: Convention for the

Prevention of Pollution by Ships MARPOL 73/78; Convention for the prevention of pollution of the sea by dumping of wastes and other substances of 1972 (London Convention 1972), and the Protocol of 1996; The 1990 Oil Pollution Preparedness and Cooperation Convention (OPRC); Convention on Civil Liability for Oil Damage of 1969 and Supplementary Convention of 1992 (CLC); Convention on Establishing Compensation Fund for Oil Damage of 1971 and Supplementary Convention of 1992

(FUND); …

The Global Program of Action for the Protection of the Marine Environment from Land-based Activities (GPA) was also developed as a special intergovernmental instrument to address the problem of land-based pollution in addition to providing the fundamental legal frameworks already discussed. With 108 Governments, including the European Commission, adopted the GPA in 1995 in an intergovernmental conference held in Washington, D.C.

The parties agreed that their shared objective was to take sustained and efficient action to address all land-based impacts on the marine environment, in particular those brought on by sewage, persistent organic pollutants, radioactive materials, heavy metals, oils (hydrocarbons), nutrients, sediment mobilization, litter, and physical

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alteration and habitat destruction. Governments are largely responsible for implementing the GPA in close collaboration with all parties involved, including local communities, non-governmental organizations, international organizations, and the commercial sector. The GPA is facilitating and supporting governments in their tasks through the three global partnerships on marine litter, fertilizer, and wastewater management with the help of its partners.

The Intergovernmental Review Meeting, or IGR, has historically been held every five years and serves as a venue for governments and other stakeholders to discuss the GPA’s implementation status and decide what steps should be made to improve it.

As for our country, Vietnam has always actively developed relations with countries around the world, thereby constantly expanding and strengthening international cooperation on the sea. Up to now, Vietnam has had diplomatic relations with 189 countries, of which 3 comprehensive strategic partnerships have been established, 13 strategic partnerships and 12 comprehensive partnerships have been established. In which, it is worth noting that the partnership with many countries covering various fields related to the sea, creating a good basis for cooperation as well as taking advantage of the support for economic and scientific development – technology and marine environmental protection. Forms of international cooperation on the sea are diverse, through participation in international treaties on the sea, including 28 bilateral international treaties and 29 multilateral international treaties. Vietnam also actively cooperates with countries with strong marine potential to take advantage of experience, science - technology and aid from other countries to build cooperation projects in the field of environmental protection.

In addition, Vietnam also actively participates in international scientific conferences and seminars, forums related to sea and ocean such as marine environmental protection, science and technology cooperation, human resource training, capacity building, etc. Most notably, at the United Nations, Vietnam has joined and approved the Sustainable Development Goals (SDGs) including Goal 14 on conservation and sustainable use of the sea and oceans. Vietnam also took the initiative to establish an expanded cooperation forum between G7 countries and coastal countries in response to climate change, sea level rise and protection of the marine ecological environment.

And what would happen if the aforementioned steps to protect the maritime environment were not implemented or carried out properly?19 Along with climate 19 The data mentioned in this section are collected from Hoang Nam (2021), “Protecting the marine environment: Pollution is at an alarming level”, Thai Nguyen Portal

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change and sea level rise, rising emissions from the continent are having a significant negative impact on the marine and island environments, leading to significant losses in human life, material goods, infrastructure, and marine environmental incidents with serious repercussions.

According to statistics provided by the General Department of Seas and Islands of Vietnam (Ministry of Natural Resources and Environment), organic waste is waste generated by industrial processes that adversely affect the marine environment, degrade the quality of seafood and some other marine species, and taint the seawater, particularly in our nation's bays and estuaries.

Particularly in the estuaries in the provinces, cities in the North, and along the coast of the Mekong Delta, pollution of organic matter, oil, and grease is occurring at a fairly high level and exceeding the allowable level close to tourist destinations and densely populated areas stretching from the North to the South.

Approximately 272 seaports are involved in marine mining and shipping operations, which have an annual capacity of more than 550 million tons. This activity produces around 5,600 tons of petroleum waste annually, over 15,000 tons of floating oil and grease, of which 23-30% is untreated hazardous solid waste, in addition to substantial volumes of wastewater that contain oil.

Aquaculture operations significantly increase the amount of waste, mainly from fertilizers and feed. With a total shrimp farming area of more than 600,000 hectares across the country, nearly 3 million tons of solid waste are discharged into the environment every year.

Besides, marine natural resources are being over-exploited and unsustainable. Seagrass in the whole sea of our country from Quang Ninh to Ha Tien has lost about 40-60%; Mangroves lost up to 70% and about 11% of coral reefs were completely destroyed, unable to recover. Seagrass beds are distributed from the North to the South and along the islands, at a depth of 0-20 m, currently only about over 5,583 ha. In some areas such as Cat Ba Island (Hai Phong City), Ha Long City (Quang Ninh), the waters of Quang Nam province... seagrass beds have almost no chance to recover naturally due to the impacts from tourism, aquaculture, etc. In the past 20 years, Vietnam has lost 12% of coral reefs, 48% of other coral reefs are in a state of serious degradation, mainly in densely populated areas such as Ha Long Bay (Quang Ninh), central coastal provinces and cities and some other islands.

Marine ecosystems are being exploited unsustainably leading to biodiversity loss. Up to now, the Red Book of Vietnam and the Red List of the World Conservation [ rang-o-nhiem-o-muc-ang-bao-ong/20181] (accessed on 10/012023).

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Organization have recorded about 100 species of sea creatures in our country at risk of extinction.

A study by the Food and Agriculture Organization of the United Nations and a number of other international organizations also shows that more than 80% of fish in the coastal and offshore waters of Vietnam have been exploited. In which, up to 25% of the fish is over-exploited or exhausted, and the catch is significantly reduced. Many other marine species are in danger of extinction.

In addition, the discharge of untreated wastewater into the coastal marine environment has caused serious consequences. Typically, the marine environmental incident caused by Hung Nghiep Formosa Ha Tinh Iron and Steel Company Limited caused the unusual death of seafood in some central provinces, especially in the 4 central provinces of Ha Tinh and Quang Binh, Quang Tri, Thua Thien-Hue occurred in early April 2016, leaving very serious consequences in many aspects and fields, causing great damage to the country's economy.

Action to protect the environment in general and to protect the marine environment in particular is an urgent issue not only of each country, each organization but also of each of us individually. It can be seen that if each individual does not join hands in solidarity with the whole community, it will cause marine pollution to occur and some obvious serious consequences may also appear as analyzed.

1.2. Marine pollution and vessel source pollution 1.2.1. Definition of marine pollution

We will not provide any new viewpoints on this subject because “marine pollution” has already been defined in several scientific research and international

treaties.

Firstly, in terms of the fundamentals, “Marine pollution is a combination of chemicals and trash, most of which comes from land sources and is washed or blown into the ocean. This pollution results in damage to the environment, to the health of all organisms, and to economic structures worldwide.”20

Secondly, from an academic point of view, more specifically we will focus on studying marine pollution in terms of law. According to Article 1.1.4 of the UNCLOS

1982 defines “marine pollution” as: “the introduction by man, directly, of substances 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 seawater and reduction of amenities.”

20 “Marine Pollution”, National Geography (2022)

[ (accessed on 03/02/2023

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The clause specifies three succinct comments. First off, this term is open-ended and might cover both old and new causes of marine pollution. Second, the concept includes substances or energies that could have harmful effects. Therefore, possibly detrimental effects on the marine ecosystem could also be regulated. Third, this definition makes it apparent that “the maritime environment” includes marine living organisms, as evidenced by the reference to “living resources and marine life”. As a result, safeguarding marine species also requires safeguarding the maritime ecosystem.

1.2.2. Vessel source pollution – a category of marine pollution

In addition to the UNCLOS 1982’s definition of marine pollution, which was mentioned in 1.2.1, the UNCLOS lists six additional sources of marine pollution:

(i) pollution from land-based sources, (ii) pollution from seabed activities subject to national jurisdiction, (iii) pollution from activities in the Area, (iv) pollution by dumping, (v) pollution from vessels, and (vi) pollution from or through the atmosphere.

These sources of marine pollution can be roughly categorized into four main groups: (i) land-based marine pollution, (ii) vessel-source marine pollution, (iii) dumping at sea, and (iv) pollution from seabed activities. Since the scope of this research is within vessel-source pollution, we only focus on the vessel – source marine pollution as following.

Vessel-source pollution, also called as pollution from vessels/ships, is any type of pollution originating from vessels engaged in navigation or transportation by either operational or accidental. There are two types of vessel-source pollution: operational and unintentional. The regular operation of ships results in pollution from operational vessels. Ships with oil-burning diesel engines release some oil with their bilge water, and the fumes that are released into the atmosphere through their funnels eventually find their way back to the water. Oil tankers would frequently wash their tanks with seawater jets in the early days of tanker operation and discard the resulting greasy residue at sea. As a result, a sizable volume of oil was released into the ocean,

contributing to oil pollution. Currently, the “load on top” and “crude oil washing”

approaches have virtually eradicated this issue.21

By definition, “vessel-source pollution” includes pollution from a variety of

sources in addition to oil spills from maritime mishaps like the Amoco Cadiz. Pollutants released from vessels engaged in navigation or transportation are referred to

as “vessel-source pollution” as opposed to pollutants released from ships engaged in

ocean dumping. Approximately 80% of the global oil pollution from vessels is caused by these international operating discharges, which include tank cleaning and 21 P. Birnie, A. Boyle and C. Redgwell (2009), International Law and the Environment, 3rd edn, Oxford University Press, p. 399.

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reballasting. Even pollution produced by vessels engaged in deep-sea mining can and ought to be classified as vessel-source pollution and subject to regulation. Additional examples of potential pollutants that could be subject to regulations governing vessel-source pollution include toxic compounds, liquefied natural gas (LNG), and other dangerous materials.22

For the prevention of pollution from vessels, tougher standards and stronger regulations are however required. We shall see that the main legal framework for the control of vessel-source pollution is provided by the UNCLOS and MARPOL. Injuries to vessels can potentially contribute to marine pollution. Torrey Canyon (1967), Amoco Cadiz (1978), Exxon Valdez (1989), Erika (1999), and Prestige (2002) are just a few of the oil tanker-related disasters that serve as examples of the scope and severity of the harm done to marine ecosystems and coastal communities.23

Additionally, the introduction of alien species through the release of ballast water is receiving more and more attention. Additionally, there are growing worries that excessive amounts of man-made noise could affect marine mammals and other living things in the ocean24.

1.3. Flag States

1.3.1. Definition of Flag States

Article 90 of UNCLOS 1982 stated that “Every State, whether coastal or locked, has the right to sail ships flying its flag on the high seas”. That is, when

land-operating on the high seas, ships of countries with sea or without sea have the right to fly the flag of the country of nationality. And that is also the foundation for us to

understand “Flag State” with the following definition: The nation under whose laws

the vessel is registered or licensed is considered to be its nationality and is known as the Flag State. A vessel must be registered, and it can only be registered in one country or territory. However, it is allowed to switch the registry where it is registered. The Flag State has the power and duty to impose rules on ships flying its flag, including rules governing certification, certification inspection, and the issuance of safety and pollution prevention certificates. A ship is governed by the laws of its Flag State since it is operating under those laws when it is involved in an admiralty action.

22 John W. Kindt (2021), “Vessel-Source Pollution and the Law of the Sea”, Vol. 17, Vanderbilt Journal of Transnational Law [ (accessed on 08/01/2023).

23 Data concerning major oil spill incidents at sea is available at: www.cedre.fr/en/cedre/index.php. 24 Generally on this issue, see K. N. Scott (2004), “International Regulation of Undersea Noise” 53 ICLQ, p. 287–324; J. M. Van Dyke, E. A. Gardner and J. R. Morgan (2004), “Whales, Submarines, and Active Sonar”, 18 Ocean Yearbook, p. 330–363.

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In addition, the phrase “Flag State” is also defined by Cornell Law School as follows: “Flag State means the authority under which a country exercises regulatory control over the commercial vessel which is registered under its flag. This involves the inspection, certification, and issuance of safety and pollution prevention documents.”25

Besides, based on the Lotus-case (1927), the Permanent Court of International Justice defined the basic principle that the Flag State alone may exercise jurisdictional

powers over its ships “vessels on the high seas are subject to no authority except that of the state whose flag they fly”.

Furthermore, Article 92.1 of UNCLOS 1982 also states that “Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry”. According to this, ships must only fly the flag of one nation, and they are

generally subject to that nation's sole legal authority on the high seas. Each state has its own requirements for granting ships its nationality, registering ships, and having the ability to fly its flag. In the M/V Saiga (No. 2) case, the International Tribunal for the Law of the Sea decided that the setting of the standards and processes for awarding and revoking nationality to ships are exclusively within the purview of the flag state.26

We can see that a ship’s nationality is directly related to the flag it flies, but there must be a real connection between the state and the ship. The necessity of a true link was created to combat the use of flags of convenience27, which are frequently used by nations like Liberia and Panama to confer their nationality to ships seeking advantageous tax, labor, and social policies. However, if a ship flies the flags of multiple countries for practical reasons, the ship lacks legal nationality and can therefore be boarded and taken on the high seas by any state. And when this is compared to ships that do fly a flag, which can typically only be boarded and detained on the high seas by its own flag state. Based on the ship’s flag, the ship must obey international and maritime law of the registered country when at sea, and it can be utilized in a range of ocean conflicts. Such as in case that when a coastal state simply 25 Article 405, Subpart D, Part 156, Subchapter O, Chapter I, Title 33. Electronic Code of Federal Regulations (e-CFR), Legal Information Institute of Cornell Law School.

26 UKEssays (2021), “Flag State Jurisdiction on The High Seas”

essay.php?vref=1] (accessed on 03/02/2023).

[ Flag of convenience (FOC) is a business practice whereby a ship’s owners register a merchant ship in a ship register of a country other than that of the ship's owners, and the ship flies the civil ensign of that country, called the flag state (Bernaert, 2006, p104).

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enacts rules to safeguard the marine environment in the waters over which it has control, it will find it difficult to administer when it reaches further seas. As a result, the flag state will now bear responsibility for protecting the country whose flag is flying on that ship. And that reason also explain how important the ship registry is. By associating a ship with a State, the ship registration system implies that that State has the right to defend that ship under international law.

It is really important to note that the flag state has additional obligations28, including the need to enact laws that make it illegal to damage or break underwater cables and pipelines beneath the high seas. Additionally, in order to comply with international obligations involving maritime safety, the flag state must pass and implement legislation addressing assistance to ships in distress, as well as give compensation in the event that such an offense happens.

The exclusivity of the Flag State - principle is always applicable to warships and ships owned or operated by a state that are only employed for governmental, non-commercial service. According to Articles 95 and 96 of the UNCLOS, these ships are totally exempt from the authority of all states other than their flag state. However, the notion of Flag State dominance on the high seas is not unqualified. With certain exceptions, third states may jointly exercise legislative or enforcement authority (or both) with the Flag State.

1.3.2. Flag States prescriptive and enforcement jurisdiction

Jurisdiction is critical for keeping order and ensuring that legal issues are treated effectively within a specified framework. It also aids in the prevention of disputes caused by various authorities claiming authority over the same subject matter or geographical region. However, there is currently no legal document that defines what jurisdiction is. Above that, it is also clear that jurisdiction is a right that is inextricably linked to the national territory. As a result, jurisdiction is the legal authority and power of a governing body, such as a court or government, to hear and decide legal cases or make and enforce laws. It establishes the limits and boundaries within which a particular entity has the right to exercise its authority. More specifically, jurisdiction refers to the amount of legal authority that a court or judicial system has. It specifies the geographical breadth, the scope of the matter, and the court's or legal system's jurisdiction. It ensures that a team can only address instances or disagreements that fall under its purview.

Besides, the ability of a state to create and enforce laws is referred to as jurisdiction. While typically associated with sovereignty and intimately linked to its

28 Described in detail in Article 94 of UNCLOS 1982.

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area, jurisdiction can exist independently of territory. Jurisdiction can be established in a variety of scenarios, depending on the location of events, the nationality of participants, or the surrounding circumstances, and will also show whether a State can take enforcement action to protect its law29.

Prescriptive jurisdiction and enforcement jurisdiction are the two primary categories of jurisdiction.

First, the capacity to regulate an activity and to prescribe specific behavior is

referred to as prescriptive jurisdiction. To put it another way, prescriptive jurisdiction is the power to enact laws that can legitimately profess to regulate persons and situations regardless of their location30. A sovereign body has the authority to impose rules and regulations on persons and entities within its control. Prescriptive jurisdiction has the authority to define and prohibit specific acts, set rules for legal proceedings, and impose penalties for violations of the law. This jurisdiction applies to both persons and organizations working inside the governing body's territorial borders. Civil law, criminal law, taxation, environmental laws, and commercial practices are all examples of prescriptive jurisdiction. The breadth and reach of prescriptive jurisdiction may differ between nations, with some having broader powers than others. It is vital to highlight that prescriptive jurisdiction is subject to international law and sovereignty norms. Jurisdictional conflicts can develop when many jurisdictions claim authority over a certain topic, necessitating the use of legal institutions such as extradition treaties or international courts to resolve disputes and keep the global legal structure in order.

Second, the ability of a state to legitimately enforce its law through the exercise

of executive and judicial power is referred to as enforcement jurisdiction. That is, it is a State’s legal authority to arrest, try, convict, and imprison an individual for violating its laws31. It entails the ability to take action, execute measures, and guarantee compliance with the governing body's stipulated rules and punishments. Typically, enforcement jurisdiction encompasses a variety of methods and entities tasked with maintaining the law. This may include, among other things, law enforcement agencies, courts, regulatory organizations, and administrative authorities. These organizations are in charge of investigating suspected infractions, gathering evidence, following legal processes, and implementing appropriate punishments or remedies on individuals found to be in violation of the law. The nature of the offense and the legal system 29 Donald R. Rothwell, Stuart Kaye, Afshin Akhtarkhavari and Ruth Davis (2010), International Law Cases and Materials with Australian Perspectives, Cambridge University Press, p. 294 - 377.

30 Ibid [29]. 31 Ibid [29].

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determine the area of enforcement jurisdiction. Some jurisdictions have extensive enforcement powers that allow them to intervene in all sectors of public and private life, whilst others may have more restricted enforcement capabilities that focus solely on certain domains such as criminal crimes or regulatory infractions. Enforcement jurisdiction is critical to sustaining social order, defending individual rights, and assuring rule of law compliance. It serves as a deterrent to illegal action and offers a structure for resolving disputes and administering justice.

Flag States as the States whose flag vessels fly under have both prescriptive jurisdiction over formulating national laws for the prevention of vessel source pollution and enforcement jurisdiction over validly implementing the laws on prevention of vessel source pollution.

1.3.3. Flag States role in protection of the marine environment from vessel source pollution

Ships flying the flag of any country play a very important role in protecting the maritime environment by establishing legislation and ensuring that the law is enforced. Ships flying the flag of any country must abide by that country’s laws. The flag state has the greatest level of jurisdiction, particularly when ships enter international seas (which are not under the control of any nation).

Therefore, The UNCLOS 1982 also creates some Flag State obligations in this area and also concerns the preservation and protection of the marine environment.

It states, among other things, that States have a general duty “to safeguard and preserve the marine environment”32. States are moreover required to take “all measures…that are necessary to prevent, reduce and control pollution of the marine environment from any source”33 including from vessels flying their flag.34 States must pass the required laws and rules to accomplish this.35 Article 217 of UNCLOS 1982 governs how these environmental standards are enforced by the Flag State, the text emphasizes once more that Flag States have a responsibility to make sure that their ships abide by international laws and regulations.36 It is necessary to stop noncompliant vessels from sailing37, according to Paragraph 3, Flag States are required to supply their vessels with certificates that were issued in accordance with international norms. Additionally, it 32 Article 192 of 1982 United Nations Convention on the Law of the Sea (UNCLOS 1982), adopted on 10/12/1982, 1833 UNTS 397, 21 ILM 1261 (1982). The formulation "States" addresses naturally also Flag States.

33 Article 194.1 of UNCLOS 1982. 34 Article 194.3.b of UNCLOS 1982. 35 Article 211.2 of UNCLOS 1982. 36 Article 217.1 of UNCLOS 1982. 37 Article 217.2 of UNCLOS 1982.

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stipulates that other States must accept those credentials “unless there are clear grounds for believing that the condition of the vessel does not correspond substantially with the particulars of the certificates”.38

The IMO is in charge of carrying out the rules, but it doesn’t monitor their application. The Flag State is in charge of doing this with assistance from Classification Societies and Port State Control. The UNCLOS 1982 also lays forth a non-exhaustive list of responsibilities for Flag States, including safeguarding maritime safety and preventing, mitigating, and managing marine environmental contamination. Additionally, Flag States are bound by other international treaties. For instance, Flag States are required by MARPOL to protect and conserve the marine environment. This dual responsibility is necessary because, unlike UNCLOS 1982, MARPOL 73/78 is frequently updated to reflect new technology advancements.

1.4. Flag States obligations to protect marine environment under United Nations Convention on Law of the Sea or UNCLOS 1982

The most comprehensive laws pertaining to the control of vessel-source pollution are included in Part XII of the UNCLOS 1982. According to Article 211.1, States have a general obligation to create international regulations and standards to prevent, reduce, and control marine environment pollution from vessels and to encourage the adoption of routing systems that reduce the risk of accidents that could result in marine environment pollution. This is done through the appropriate international organization or general diplomatic conference. While the IMO is a part of the competent international organization, other international bodies may also be present. According to the UNCLOS 1982, Flag States, coastal states, and port states are responsible for regulating vessel-source pollution. However, for the sake of this discussion, we will solely analyze the Flag States’ obligations under the legislative and prescriptive jurisdictions as well as their obligations under the enforcement jurisdiction.

1.4.1. Flag States prescriptive jurisdicton over protection of marine environment from vessel-source pollution under UNCLOS 1982

The primary duty to control marine pollution from vessels rests on the Flag State. This follows from the idea of the Flag State's exclusive jurisdiction. In terms of

legislative authority, Article 211.2 requires the Flag State to enact laws that “at least have the same effect as that of generally accepted international rules and standards established through the competent international organization or general diplomatic conference” (The competent international organization means the IMO). While there

38 David Anderson (2009), “Modern law of the sea”, Volume 59, Ocean Development, p.256.

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is no clear definition of “generally accepted international rules”, it can reasonably be

given that the first two Annexes of MARPOL have been extensively ratified, it can be assumed that those rules apply as well.39 The penalties stipulated by the laws and rules of flag States must be severe enough to deter infractions wherever they take place.40

1.4.2. Flag States enforcement jurisdiction over protection of marine environment from vessel-source pollution under UNCLOS 1982

Flag States have enforcement jurisdiction under Article 217. According to Article 217.1, Flag States are obligated to make sure that their ships abide by all applicable international laws, standards, and regulations pertaining to the control of vessel-source pollution. Regardless of where a violation occurs, Flag States must also ensure that these laws and regulations are effectively enforced. Flag States are required by Article 217.2 to take the necessary steps to guarantee that their vessels are not allowed to sail until they can do so in accordance with the requirements of the international rules and standards. In this regard, Article 217.3 places a duty on flag States to make sure that their ships have certificates on board that are required by and issued in accordance with international laws and standards, and that their ships are routinely examined to verify such certificates.

Regardless of where the violation occurred or where the pollution caused by the violation has occurred or has been spotted, if a vessel violates rules and standards, the flag State is required to provide for an immediate investigation and, where appropriate, institute proceedings in regard to the alleged violation.41 Flag States are required to look into any alleged breach committed by their vessels upon written request from any State. Flag States must immediately start legal action in line with their laws if they believe there is adequate evidence to support proceedings over the alleged infringement.42 Flag States must also quickly report the measure taken and its results to the requesting State and the relevant international institution. All States will have access to this information due to Article 217.7.

1.5. Flag States obligations to protect marine environment from vessel source pollution under the International Convention for the Prevention of Pollution from Ships or MARPOL 73/78

The previous part has analyzed Flag States obligations to protect marine environment from vessel source pollution under UNCLOS 1982. However, UNCLOS 1982 is not a specializing Convention on prevention of pollution from ships. Therefore, 39 Churchill and Lowe, Law of the Sea, p. 346.

40 Article 217.8 of UNCLOS 1982. 41 Article 217.4 of UNCLOS 1982. 42 Article 217.6 of UNCLOS 1982.

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UNCLOS 1982 only covers the most general and important Flag States obligations. When it comes to Flag States obligations to prevent pollution from ships, the International Convention for the Prevention of Pollution from Ships or MARPOL

73/78 is the priority to be analyzed.

The International Convention for the Prevention of Pollution from Ships (MARPOL) is the main international convention covering prevention of pollution of the marine environment by ships from operational or accidental causes. The MARPOL Convention was adopted on 2 November 1973 at IMO. The Protocol of 1978 was adopted in response to a spate of tanker accidents in 1976-1977. As the 1973 MARPOL Convention had not yet entered into force, the 1978 MARPOL Protocol absorbed the parent Convention. The combined instrument entered into force on 2 October 1983. In 1997, a Protocol was adopted to amend the Convention and a new Annex VI was added which entered into force on 19 May 2005. MARPOL has been updated by amendments through the years43.

1.5.1. Flag States prescriptive jurisdiction over protection of marine enviroment from vessel-source pollution under MARPOL 73/78

Under MARPOL Convention, the legislative jurisdiction of Flag States to protect marine environment from vessel-source pollution is the Obligation to formulate National Laws in accordance with MARPOL 73/78. In accordance with international law, Flag States are required to enact national legislation to guarantee that the ships registered under their flag abide by the standards set forth in multilateral treaties like MARPOL 73/78.44 Flag States in MARPOL 73/78 and its six annexes, state jurisdiction over the prevention of maritime source pollution is outlined. The basic language of MARPOL 73/78 imposes two duties on Flag States in this regard: (i) they must draft national laws to implement MARPOL 73/78; and (ii) they must employ their enforcement authority to impose monetary and administrative penalties on boats that violate the convention. The first obligation, which concerns the power of States to enact national legislation to implement MARPOL 73/78, will be examined in this section. In part 1.4.2.2 of this thesis, the second obligation, which deals with enforcement jurisdiction, will be

examined.

According to MARPOL 73/78, States must pass national legislation to ratify the 43 International Maritime Organization – IMO, International Convention for the Prevention of Pollution from Ships (MARPOL), [ (accessed on August 11, 2023). 44 W. K. Talley, “Regulatory Issues: The Role of International Maritime Institutions”, Department of Economics, Old Dominion University, Norfolk, Virginia USA [ (accessed on 27/01/2023).

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agreement and exercise their authority over the protection and reduction of vessel source pollution.45 The numerous issues covered by MARPOL 73/78 must be governed by national laws passed by States.46 In order to prevent the pollution of the marine environment by the discharge of harmful substances or effluents containing such substances in violation of the convention, MARPOL 73/78 states that national laws must: give effect to the provisions of [the convention] and those Annexes thereto by which they are bound.47

Regarding the breadth of national laws necessary to implement the pact, MARPOL 73/78 offers little guidance. As a result, State practices diverge significantly from the national legislation passed to implement MARPOL 73/78 and the rules laid down in the relevant annexes to the convention. Furthermore, MARPOL 73/78 does not prevent States from enacting legislation and rules for vessels flying their own flag that go beyond those outlined in the convention. Higher requirements can, however, only be applied to a State's domestic boats; foreign vessels, on the other hand, cannot be subject to them unless the IMO has raised the relevant norm internationally.48

Many nations have passed anti-pollution legislation that prescriptively implement the generally recognized international guidelines and standards outlined in MARPOL 73/78, such as the restriction of operational discharge and periodic surveys.49 In part 1.4.2.2 of this thesis, the generally accepted international regulations and standards outlined in MARPOL 73/78 are examined.

For instance, the Protection of the Seas (Pollution Prevention) Act 1983 was passed in Australia to make MARPOL 73/78 effective. The six categories of compounds covered by MARPOL 73/78 are extensively covered under this piece of 45 Yann-Huei Song (2008), “The Potential Marine Pollution Threat from Oil and Gas Development Activities in the Disputed South China Sea/Spratly Area: A Role that Taiwan Can Play”, Ocean Development & International Law 150, p.164; The obligation of States to protect and preserve the environment is confined by the national rules and standards they adapt to conform with rules and standards established through competent international organizations or diplomatic conferences; D. Dzidzornu and M. Tsamenyi (1991), “Enhancing International Control of Vessel-Source Oil Pollution Under the Law of the Sea Convention, 1982: A Reassessment”, University of Tasmania Law Review 270, p.281.

46 Article 11.1.a of MARPOL 73/78. 47 Article 1.1 of MARPOL 73/78.

48 R Churchill and A.V. Lowe (1999), “The Law of the Sea”, 3rd edition, Manchester University Press, p.346; Christian Pisani (2002), “Fair at Sea: The Design of a Future Legal Instrument on Marine Bunker Fuels Emissions within the Climate Change Regime”, Ocean Development & International Law. 49 W Quan (2005), “UNDP/GEF Project titled "Reducing Environmental Stress in the Yellow Sea Large Marine Ecosystem". UNDP/GEF/YS/RWG-P.2/6', Paper presented at the Second Meeting of the Regional Working Group for the Pollution Component, Busan, Republic of Korea.

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national legislation.50 The Protection of the Seas (Pollution Prevention) Act of 1983 outlines specific technical requirements for matters covered by MARPOL 73/78, including the dumping of oil or oily mixtures into the ocean, the dumping of oil residues into the ocean, shipboard pollution emergency plans, the transport of hazardous materials, the obligation to report incidents involving specific substances, cargo record books, and tank cleaning on vessels. Additionally, the Power to Require Pollutant Discharge at Reception Facilities and Laws for Preventing Air Pollution are all covered by the Protection of the Seas (Pollution Prevention) Act of 1983's regulations on signs relating to requirements for the disposal of rubbish. Fines for infractions of the Act are also outlined in the Protection of the Seas (Pollution Prevention) Act of 1983. These penalties are applicable upon conviction.

The obligations and responsibilities that States incur upon ratifying the treaty are outlined in several articles of MARPOL 73/78. Notifying the IMO of new laws pertaining to the numerous issues covered by MARPOL 73/78 is one of these responsibilities.51 Examples of certificates52, lists of receiving facilities (with their locations)53, reports on the application of the convention54, and yearly statistical reports of fines imposed for violations of MARPOL 73/78 requirements are among the items that must be included in the message.

Numerous scholars have come to the conclusion that the majority of MARPOL 73/78 contracting parties are not abiding by their duty to inform the IMO of national laws and other pertinent information. This casts considerable doubt on whether States will implement MARPOL 73/78 requirements. The failure to comply with MARPOL 73/78's reporting requirements could be due to a number of factors. If no discharges have been found or no vessels flying the flag of State parties have been involved in discharges, for instance, there might be nothing to report to the IMO. Given that no discharges have been found, it might make sense in this case to refrain from sending any reports. However, reports indicating that no purported discharges have been identified must be sent to the IMO in order for an evaluation of MARPOL 73/78's effectiveness to be made. The second reason might be that States have actively participated in MARPOL 73/78 implementation but have not provided any reports to

50 The six categories of substances are oil, noxious liquid substances in bulk, harmful substances carried by sea in packaged form, sewage, garbage and air pollution from vessels.

51 Article 11.a of MARPOL 73/78. 52 Article 11.c of MARPOL 73/78. 53 Article 11.d of MARPOL 73/78. 54 Article 11.1.e of MARPOL 73/78.

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In order to safeguard and preserve the maritime environment from vessel source pollution, Flag States are obligated to uphold six commitments under MARPOL 73/78 over vessels that are permitted to fly their flags. The following obligations must be met by all vessels: (i) the obligation to regulate the discharge of pollutants from vessels; (ii) the obligation to detect unlawful discharges from vessels; (iii) the obligation to conduct statutory surveys to ensure that vessels comply with laws on the prevention of pollution; (iv) the obligation to issue and endorse shipboard documentation; (v) the obligation to ensure that harmful substances are appropriately packaged, labeled and stowed onboard vessels; and (vi) the obligation to investigate reports of non-compliance by vessels under their registry by other States. We shall now examine each of these commitments individually.

(i) The obligation to regulate the discharge of pollutants from vessels

The leakage of hazardous, damaging, or noxious chemicals from vessels must be minimized to the greatest extent practicable by the steps that states must take59. Despite this overarching requirement in the UNCLOS 1982 to reduce maritime pollution, the treaty lacks clear technical criteria to direct States in this area. Instead, the six annexes of MARPOL 73/78 include the technical requirements governing the 55 Gerard Peet (1994), “International Co-operation to Prevent Oil Spills at Sea: Not Quite the Success It Should Be” in Helge Ole Bergesen and Georg Parmann (eds), Green Globe Yearbook of International Co-operation on Environment and Development, Oxford University Press, p.47.

56 Andrew Griffin (1994) “MARPOL 73/78 and Vessel Pollution: A Glass Half Full or Half Empty?”, Indiana Journal of Global Legal Studies 489, p.501.

57 Haijiang Yang (Springer, 2006), “Jurisdiction of the Coastal State over Foreign Merchant Ships in Internal Waters and the Territorial Sea; L.C. Sahatjian and D.E. Joseph (1998), “MARPOL - An Adequate Regime? : A Questioning Look at Port and Coastal State Enforcement”, Paper presented at the International Oil Spill Conference, Washington, p.2.

58 Article 94.2 of UNCLOS 1982. Under this article, Flag States must exercise jurisdiction under their internal laws over vessels flying their flag; Mary George (2002), “Transit Passage and Pollution Control in Straits under the 1982 Law of the Sea Convention”, Ocean Development & International Law, p.189. 59 Article 194.3 of UNCLOS 1982.

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discharge of contaminants from vessels60.

A specific material or group of substances is addressed in each annex of MARPOL 73/78, including oil, noxious liquids transported in bulk, dangerous commodities transported in packages, sewage, waste, and hazardous compounds released through vessel exhausts. All States Parties to MARPOL 73/78 are required to implement Annexes I and II, which govern the discharge of oil and hazardous liquids transported in bulk61. However, not all Flag States must abide by the rules in Annexes III, IV, V, and VI. Instead, the next four annexes of MARPOL 73/78 are optional for States to select all, some, or none at all.62 The six annexes of MARPOL 73/78 comprehensive regulations have been divided into four major groups of compounds. They are: (1) oil and oily waste; (2) noxious and harmful substances (both liquid and packaged); (3) garbage and sewage; and (4) harmful substances emitted through vessel exhausts.

- The Obligation to Regulate Discharge of Oil and Oily Waste from Vessels

Oil contamination is a serious hazard to marine life and the environment. Oil spills at sea, and the resultant damage to coasts throughout the world, are a high-profile issue that draws a lot of public attention.

As part of their usual operations, ships dump oil wastes into the maritime environment. Oily bilge wastes and oily sludge wastes are the two forms of oily residues or waste that collect aboard boats during regular operations. Oily bilge wastes form when oil drippings from a vessel's complicated equipment gather and mix with saltwater in the vessel's bilge (bottom). As a byproduct of the fuel and lube oil purification operations required for vessel operation, a thick and oily waste known as sludge is produced. Because oily waste is constantly created, controlling it is a constant issue for vessel operators, and operating and maintaining pollution protection systems takes time 60 MARPOL 73/78 seeks to reduce vessel source pollution by requiring flag States to regulate the discharge of pollutants from vessels; Andrew Griffin (1994), “MARPOL 73/78 and Vessel Pollution: A Glass Half Full or Half Empty?”, Indiana Journal of Global Legal Studies, p.496.

61 Although Annex II is mandatory, the 1978 Protocol separated it from Annex I and allowed States to defer implementation of Annex II, as Annex II was lacking in State support for at least three years after the Protocol’s entry into force. The delay in implementing Annex II was to facilitate the ratification of MARPOL 73/78 by States and its entry into force; Alan Khee-Jin Tan (2006), “Vessel-Source Marine Pollution: The Law and Politics of International Regulation”, Cambridge University Press, p.138. 62 Article 14.1 of MARPOL 73/78; To complement the six Annexes, two protocols were adopted, dealing with Reports on Incidents involving Harmful Substances and Arbitration. Articles 8 and 10 of MARPOL 73/78 respectively give effect to the two protocols; Annex VI was added to MARPOL 73/78 by the 1997 Protocol to the Convention; Annexes to MARPOL 73/78 are generally developed in response to vessel source pollution incidents.

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and effort. Moreover, shore-based disposal solutions might be pricey. As a result, several ships have discharged oily trash overboard.

Excessive oil disposal by vessels is frequently incompatible with other users of the maritime environment, such as the general public. Likewise, reducing or preventing oil spills from boats is better for the environment and the people than after clean-up and restoration activities. This section examines the provisions contained in Annex 1 of MARPOL 73/78 that are intended to limit vessel discharges of oil and oily waste into the maritime environment.

Several strategies have been developed to help vessels dump oil at sea and along coastlines. This thesis does not examine these strategies or the overall effects of oil on the marine environment since they are not immediately relevant to flag State enforcement jurisdiction for the conservation and preservation of the marine environment from vessel source pollution. Mattson provides a comprehensive account of the consequences of various types of oil on the maritime environment.

MARPOL 73/78's applicability is generally determined by the size, type, and age of the vessel. Some classes of vessels may be exempted from the technical provisions of MARPOL 73/78 Annexes. Any exemptions, however, must be properly advertised and communicated to the IMO. Annex I of MARPOL 73/78, as a general rule, applies to oil tankers of 150 gross tonnage and above, as well as other vessels (non-tankers) of 400 gross tonnage and above.

Flag States are required to enforce the operational discharge rules outlined in Annex I of MARPOL 73/78, which apply to both tankers and non-tankers. According to the guideline, a tanker may not leak more than 1/30,000th of its total carrying capacity into the water. Additionally, the rate of discharge of oil from a tanker shall not exceed thirty liters per mile traveled. Annex I of MARPOL 73/78 additionally states that a tanker may not discharge any oil within fifty miles of land or in certain designated regions. The regulations for non-tankers are less strict.

Flag States must also enforce the maximum permissible discharge rate (or Instantaneous Rate of Discharge) of 15 parts per million (ppm) while non-tankers are en route outside of special regions. With the exception of the maximum rate of allowable discharge in Annex I of MARPOL 73/78, flag States have power to approve the discharge of substances containing oil into the sea, for the purpose of combating specific pollution incidents in order to minimize damage to the marine environment from oil pollution.

Flag States shall guarantee that vessels are outfitted with shipboard technology capable of managing and retaining onboard oil wastes that exceed the maximum level permitted for release into the maritime environment under Annex I of MARPOL 73/78.

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Obligations Of Flag States To Protect The Marine Environment From Vessel Source Pollution Under International Laws, Australian Laws And Experiences For Vietnam.pdf

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