1

MASTER OF SCIENCE IN MARITIME SCIENCE

MASTER DISSERTATION

Academic year 2015 – 2016

How can the current legislation on the high seas be

improved, in order to secure the control and supervision of

this legislation to protect biodiversity in the high seas?

R.M. Gonggrijp

Submitted in partial fulfillment of the requirements for

the degree of: Master of Science in Maritime Science

Master of Science in Maritime Science

Supervisor: F. Maes

Assessor: K. Willaert

2

Table of content

List of abbreviations ................................................................................................................................ 4

Introduction ............................................................................................................................................. 5

1. Current legal regime ............................................................................................................................ 8

1.1 United Nations Convention on the Law of the Sea 1982 ............................................................. 8

1.1.1 History of the law of the sea convention................................................................................. 8

1.1.2 The baseline ............................................................................................................................ 9

1.1.3 Establishment of different maritime zones............................................................................ 11

1.1.4 The high seas ........................................................................................................................ 11

1.1.5 Right of visit on the high seas ............................................................................................... 12

1.1.6 Hot pursuit ............................................................................................................................ 13

1.1.7 The Area ............................................................................................................................... 14

1.1.8 Protection of the biodiversity in the Law of the Sea Convention ......................................... 15

1.1.9 Enforcement powers of the States ......................................................................................... 16

1.2 The International Convention for the Prevention of Pollution from Ships 1973 ........................ 20

1.2.1 Annex I .................................................................................................................................. 20

1.2.2 Annex II ................................................................................................................................ 24

1.2.3 Annex III ............................................................................................................................... 26

1.2.4 Annex IV ............................................................................................................................... 27

1.2.5 Annex V ................................................................................................................................. 27

1.3 Fish Stocks Agreement relating to the conservation and management of straddling fish stocks

and highly migratory fish stocks 1995 .............................................................................................. 29

1.3.1 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas

1958 ............................................................................................................................................... 31

1.3.2 Fish Stocks Agreement relating to the conservation and management of straddling fish

stocks and highly migratory fish stocks 1995 ................................................................................ 31

1.3.3 Agreement to Promote Compliance with International Conservation and Management

Measures by Fishing Vessels on the High Seas 1993 .................................................................... 32

1.4 Other relevant conventions .......................................................................................................... 34

1.4.1 International Convention on the Control of Harmful Anti-fouling Systems on Ships 2001 . 34

1.4.2 Ballast Water Management Convention 2004 ...................................................................... 35

1.4.3 Convention on Biological Diversity 1992 ............................................................................ 36

2. Actual and potential difficulties ....................................................................................................... 37

2.1 Sovereignty of States ................................................................................................................... 37

2.2 Solving international disputes ..................................................................................................... 38

2.2.1 International court of Justice ............................................................................................... 39

2.2.2 International Tribunal for the Law of the Sea ...................................................................... 39

3

2.2.3 Arbitration ............................................................................................................................ 40

2.3 Application of the conventions by State parties and non-State parties ....................................... 41

2.4 Enforcement of international law by States. ................................................................................ 45

2.5 The tragedy of the commons ....................................................................................................... 47

3. What could be a legal structure for the high seas .............................................................................. 48

3.2 A new convention to protect the biodiversity on the high seas .................................................. 49

3.2 Separate organisation for the biodiversity in the high seas. ........................................................ 52

3.3 New provisions for a new regime. ............................................................................................... 54

Conclusion ............................................................................................................................................. 56

Biography .............................................................................................................................................. 58

4

List of abbreviations

Cedre: The Centre of Documentation, Research and Experimentation on Accidental Water

Pollution

EEZ: The Exclusive Economic Zone

EC: The European Commission

EU; The European Union

ICJ: The International Court of Justice

IMDG Code: The International Maritime Dangerous Goods Code

PSC: Port State Control

IMO: The International maritime Organisation

ITLOS: The International Tribunal for the Law of the Sea

FAO: The Food and Agriculture Organisation

LOSC: The Law of the Sea Convention

MARPOL: The International Convention for the Prevention of Pollution from Ships

MEPC: The Marine Environmental Protection Committee

SOLAS: The International Convention for the Safety of Life at Sea

UN: The United Nations

UNCED: United Nations Conference on Environment and Development

UNCLOS: United Nations Convention on the Law of the Sea

5

Introduction

Water covers over 75% of the earth’s surface and provides a home to almost 97% of all life on

earth, most of it is salt water and just a few percentages is fresh water. These numbers show

that the water on our planet is very important and that it is very valuable to all life. Besides the

value of water to all life on earth, the economic is also immense. The value of resources in the

water is calculated in economic terms and its value is estimated around 7 trillion dollars per

year. The economic value is calculated on the basis of fisheries, oil and sea bed resources,

transport on the sea and recreational uses of the sea. Of this value we destroy approximately

428 billion each year until 2050, this will be much more in the years after. The impact of human

life on earth is calculated at a value of 1.979 trillion dollar in 2100. This impact is due to the

high quantities of fish that is being caught, the exhaustion of the earth resources and the

pollution of the waters. Approximately 60% of all fish stock is fully exploited and 30% of all

fish stock is over-exploited, this is a total of 90% of all fish stock. From all the oil in the world

about 30% comes from offshore oil installations. From all gas in the world about 50% is coming

from offshore gas installations. These offshore installations need transportation and pipelines

to bring the product to the consumer on land. Every year there are new wells discovered, mostly

in Africa and South America. Another danger that comes with these oil and gas installations

and the transport of the resources, is water pollution. In the last 50 years tonnes of oil spilled

into the sea, from installations or pipelines during transportation. Not only transport through

pipelines can put pressure on the marine environment, also the transport by vessels over sea

creates pollution. This weighs heavily on the biodiversity in the sea and the seabed. (Beaudoin,

Y. et al. (2015). Why Value the Oceans, UNEP/GRID-Arendal & Duke University)

In the last decade many rules and regulations have been made to put a stop to the demolition of

the sea and the seabed. Rules are made for oil installations and the transport of oil products to

avoid oil spills and pollution of the sea. Rules and regulations are made to prevent discharges

by vessels in the sea, emissions by vessels and disposal of garbage and plastic. Besides pollution

caused by vessels and other transportation systems, the sea is polluted by land based sources.

Recent developments in conventions and agreements address the protection of biodiversity in

the sea and the protection of fish stock. Even a new maritime zone was established with the

Law of the Sea Convention 1982 to protect the fish stock in the sea.

These conventions have to be implemented by the member States on a national level. This

means that on a national level the States have to create their own rules and regulations to

implement these conventions. Every State can implement these rules and regulations in their

national laws, it is more challenging to supervise, regulate and enforce these rules and

regulations. This is the problem with many conventions. For example the Law of the Sea

Convention 1982 has been ratified by 167 States. These member States are located in Europe,

America, Africa and Asia. Member States in Europe have better sight on the enforcement of

their national rules and regulations than member States in Asia. States in Asia have problems

with the enforcement of their own rules, let alone the rules and regulations that have to be

implemented from an international level. The enforcement and supervision on the conventions

is the biggest problem concerning the implementation of these multilateral conventions,

especially when the protection of the seas is concerned. If the States do not have the capacity

or the national motivation to implement and enforce these conventions, then the conventions

are hollow agreements.

6

In this Master thesis the problems surrounding the protection of the high seas will be unfolded.

The sea contains the most resources and animal life on earth, whereby the high seas contribute

a big part. Most resources and marine life in the high seas has yet to be discovered. This is the

main reason to protect the seas from human activities. Besides the protection of the rich

biodiversity in the high seas, many parts of the high seas are not yet fully explored; if we delay

the protection of the high seas for too long, than there will be no biodiversity left to explore.

The high seas has an unique concept of laws and regulations. Not one State has territorial rights

on the high seas itself, so the rules and regulations that have been created are difficult to enforce.

The high seas is governed by the concept of freedom, the States have freedom of navigation,

fisheries, laying pipelines and cables and creating artificial islands and installations. On the

high seas the territorial rights of States can be exercised only on the vessels that fly under the

State’s flag or installations that belong to that State. This concept of freedom is highly utilized.

Therefore it is necessary to create restrictions to those freedoms, which is already done in some

conventions and international agreements. These conventions and international agreements are

a great help to set boundaries on this concept of freedom and protect the biodiversity in the high

seas. However in the last year the prospect of the high seas and the enforcement of these

conventions by the member States is being reviewed. One State does more than the other and

can do more than the other, due to the political and economic status of that State.

In this thesis the concept of freedom on the high seas and the surrounding problems will be

discussed and unfolded. In specific, the rules and regulations that upheld the high seas until this

moment and the rules and regulations that could uphold the high seas in the future. The main

question of this thesis will be: ‘’How can the current legislation on the high seas be improved,

in order to secure the control and supervision of this legislation to protect biodiversity in the

high seas?’’ This will be investigated through various questions, for example:

- What is the current legal structure that protects the biodiversity in the high seas?

- What are the problems concerning this legal structure?

- What could be the legal structure to protect the biodiversity in the high seas?

These questions will be answered by examining the current legal regime and the current

problems concerning this legal structure. With the information about the current legal structure

and the problems that derive from this, the different possibilities that could solve these problems

for the future will be discussed. For the current legal regime and structure, the United Nations

Convention on the Law of the Sea 1982, The International Convention for the Prevention of

Pollution from Ships 1973, the Fish Stocks Agreement relating to the conservation and

management of straddling fish stocks and highly migratory fish stocks 1995 and other relevant

conventions will be examined in the first chapter. In the second chapter the problems relating

to these conventions will be discussed by examining the sovereignty of States, the different

international dispute settlement bodies, the application of the conventions by State parties and

non-State parties and the enforcement of international law by States. In chapter three the

possible solutions for these problems will be discussed. The first solution is focussed on a

possible new convention that will protect the biodiversity in the high seas. The second focus

will be on a possible new organisation that will be responsible for the protection of the

biodiversity in the high seas. The last solution will concern the possibility of new provisions in

the conventions or international rules and standards that will focus mainly on the enforcement

7

of the international rules and regulations concerning the protection of the biodiversity in the

high seas.

8

1. Current legal regime

The sea is ‘one single unit and is essentially characterized by the continuity of marine spaces’.1

This means that all States have to work together to govern the seas. At first the rules and

regulations governing the sea existed out of customary law, now States have created

conventions and agreement to codify the law of the sea. Because the seas concern a lot of States,

the legislation about the sea is most of the time laid down in conventions. The United Nations

(UN) has created a big part of all conventions concerning the sea. The European Union (EU) is

member of conventions and has created legislation concerning the seas for its Member States.

Most of the time States must implement these conventions and regulations in their national law

if they do not have similar national law yet.

There are many concerns about the high seas. Concerns about the protection of the sea and the

biodiversity, but also concerns about the sovereignty of States. Many States tried to make proper

legislation to limit these concerns. The main convention about the high seas is the United

Nations Convention on the Law of the Sea 1982. In this convention the States tried to find a

good balance between the biggest concerns of States; the sovereignty of States, the freedoms

on the high seas and the protection of the sea and its biodiversity. In addition to this convention

there are conventions from the International Maritime Organisation (IMO), an institution of the

UN, that is concerned with creation of conventions and guidelines for the safety of vessels, the

prevention of pollution and protection of the marine environment. The IMO created the

MARPOL convention, the SOLAS convention and many other important conventions. These

conventions have their own bodies and regulations to supervise the compliance of States. All

these conventions have one purpose; compliance by Member States and compliance of the

population of those States. If the Member States do not supervise the compliance of the

conventions, those conventions become meaningless and void. In the next paragraphs all the

important conventions will be discussed.

1.1 United Nations Convention on the Law of the Sea 1982

1.1.1 History of the law of the sea convention

The United Nations Convention on the Law of the Sea 1982 (UNCLOS III / LOSC) is the main

convention about the sea and covers all general aspects of the sea. The LOSC is a product of

previous conventions, state practise, general principles and long-lasting negotiations. The first

UN conference on the Law of the Sea in 1985 began at the end of World War II. This conference

adopted four conventions:

- The convention on the territorial sea and the contiguous zone2

- The convention on the high seas3

- The convention on fishing and conservation of the living resources of the high seas4

- The convention on the continental shelf5

- Optional protocol of signature concerning the compulsory settlement of disputes6

1 Y. Tanaka, ‘The international law of the sea’, Cambridge, 2015, p 5 2 516 UNTS 205, that entered into force 10 September 1964. 3 450 UNTS 11, that entered into force 30 September 1962. 4 559 UNTS 285, that entered into force 20 March 1966. 5 499 UNTS 311, that entered into force 10 June 1964. 6 450 UNTS 169, that entered into force 30 September 1962

9

- Several resolutions concerning radioactive materials, fisheries, nuclear testing, historic

waters and cooperation in conservation matters.

The previous convention on the law of the sea was divided in different subjects; the Territorial

Sea Convention 1958, the High Seas Convention 1958 and the Continental Shelf Convention

1958. There were still issues left unfinished with UNCLOS I, so there was another conference

for an UNCLOS II in 1960. With the conference for the UNCLOS II the outer limits of the

territorial sea were discussed, unfortunately there were not enough votes for the proposal and

the UNCLOS II was a failure. In 1973 the conference for the UNCLOS III began and had to

fill up a lot of gaps in the UNCLOS I. In the UNCLOS III the outer limits of territorial sea

were set on 12 miles from the baseline. Secondly a new zone was established, the Exclusive

Economic Zone (EEZ), a zone 200 mile from the baseline, this zone was created for protection

and economic purposes. Furthermore the Area had the protection of the International Seabed

Authority (ISA) under the UNCLOS III and the UNCLOS III has established its own dispute

settlement body, the International Tribunal for the Law of the Sea (ITLOS). Last but not least

the UNCLOS III deals with the protection of the oceans and seas in more depth than the

previous conventions. The United Nations Law of the Sea Convention 1982 (UNCLOS

III/LOSC) entered into force in November 1994, has 167 State Parties and has two

supplementary agreements;

1. 1994 Agreement, relating to the implementation of part XI of the United Nations Law

of the Sea Convention, adopted on 28 July 1994 and entered into force on 28 July 1996

2. 1995 Fish Stocks Agreement, relating to the conservation and management of

straddling fish stocks and highly migratory fish stocks, entered into force on 28 July

1994

The LOSC sets the stage for all rules and regulations concerning the sea. The LOSC divides the

seas in zones; the territorial sea, the contiguous zone, the exclusive economic zone and after

that the high seas. The territorial sea is measured 12 nautical miles from the baseline.7 The

contiguous zone is measured 24 nautical miles from the baseline.8 The exclusive economic zone

is measured 200 nautical miles measured from the baseline.9 The continental shelf 10is the

seabed and the subsoil thereof and is measured 200 nautical miles from the baseline. The

continental shelf can be extended up till 350 nautical miles from the baseline in special

situations, the claims of an extended continental shelf can be submitted to the Commission on

the Limits of the Continental Shelf. 11

1.1.2 The baseline

The baseline is measured by the low water lines along the coastline.12 The Member States have

a wide discretionary power if it comes to low water lines. The low water lines can vary in every

Member State according to tidal data that is being used, there is no uniform standard.13 There

are different kinds of baselines, normal baselines, straight baselines, baselines for river mouths

7 Article 3 LOSC 1982 8 Article 33 LOSC 1982 9 Article 56 LOSC 1982 10 Article 77 LOSC 1982 11 The continental shelf can be extended to a maximum of 350 nautical miles measured from the baseline in two

ways, as stated in article 76 (4,a, I) LOSC 1982: ‘a line delineated (..) to the outermost fixed points at each of

which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot

of the continental slope’. And as stated in article 76 (4, a, II): ‘ a line delineated in accordance with paragraph 7

by reference to fixed points not more than 60 nautical miles from the foot of the continental slope’, until the

isobath of 2500 meters depth or the 350 mile limit. 12 Article 5 LOSC 1982 13 ICJ, ‘’Anglo-Norwegian Fisheries case’’, 18 December 1951, http://www.icj-cij.org

10

and bays and archipelagic baselines. Normal baselines are measured from the low tide

elevations along the coastline. The baseline can be further towards the sea, if low tide elevations

are located within 12 miles from the coastline.14 Straight baselines are baselines drawn into a

straight line from low water line to low water line, where the coastline is deeply indented or cut

into or if there is a fringe of islands along the coast in its immediate vicinity between a river

mouth or a bay.15 The International Court of Justice (ICJ) has decided in the Anglo Norwegian

Fisheries case that straight baselines can be drawn: 16

1. where the coastline is deeply indented or cut into or if there is a fringe of islands along

the coast in its immediate vicinity;

2. the baseline may not depart from the direction of the coastline;

3. certain areas are sufficiently closely linked to the land domain to be part of internal

waters;

4. certain economic interest of the region should be taken in consideration.

The part that goes land inwards of a baseline, marks the internal waters. The States have full

sovereign rights in their internal waters.17 The straight baselines can give more internal water,

that is why many States claim that they may draw straight baselines. Baselines along a river

mouth is a straight baseline drawn from low water line to low water line at the mouth of the

river, that directly flows into the sea.18 There is no limitation of the length of the straight line

along the river mouth. For bays the regime is almost the same, at a bay a straight baseline can

be drawn at the mouth of the bay if the circle of the bay is in the same proportion as the width

of the mouth.19 The width of the mouth cannot be larger than 20 nautical miles.20 If there is a

port at the coast, the outermost harbour works form a part of the coast.21

Islands have their own territorial sea, contiguous zone, EEZ and rights under the LOSC.22 This

is very important for a lot of States, the islands give them extra sovereign rights.23 Article 121

LOSC 1982 states that : ‘Rocks which cannot sustain human habitation or economic life of their own

shall have no exclusive economic zone or continental shelf.’ Islands must sustain human habitation

and economic life of their own and it must be terra firma, which means the island must be

attached to the seabed.24 If the territory of a State only exists out of a group of islands, then the

14 Article 13 LOSC 1982 15 Article 7 (1) UNCLOS 1982 16 In article 7 of the LOSC 1982 the first two criteria are codified after the ICJ ruling in the ICJ, ‘’Anglo-

Norwegian Fisheries case’’, 18 December 1951, http://www.icj-cij.org 17 Article 8 LOSC 1982 18 Article 9 LOSC 1982 19 The baseline along the mouth of the bay can only be drawn if the bay is bordering one State, in the case two

States are bordering a bay an agreement can be made. If there are more than two States bordering the bay, the

regime of 10 LOSC 1982 cannot be applied. 20 Article 10 LOSC 1982 states that if he mouth consist of islands, those islands can be used for the measuring of

the 20 nautical miles and can both be at a distance of 20 nautical miles. Historical bays are an exception in article

10 (6) LOSC 1982, if that bay is an historical bay , that bay can be treated as internal waters if the State

exercising the authority over that waters is the one that claimed the title. The title of historical bay can be

claimed if the State exercises this authority continues and foreign States acknowledge this historical bay. 21 The harbour works have been a point of discussion in the ICJ, ‘’ Maritime Delimitation in the Black Sea

case’’, Romania v. Ukraine, 3 February 2009, www.icj-cij.org and the Ad Hoc Court of Arbitration, ‘’Dubai/

Sharjah Border case’’, Dubai v. Sharjah, 19 October 198, 91, international law report 543, the harbour works are

used as a tool for States to increase their internal waters. 22 Article 121 LOSC 1982 23 Artificial islands do not have any rights under the LOSC, an artificial island does not have its own territorial

sea, contiguous zone an EEZ. 24 In the ICJ, ‘’Maritime Delimitation in the Area between Greenland and Jan Mayen’’, Denmark v. Norway, 14

June 1993, www.icj-cij.org the court stated that economic life can be realised if the people that life on that island

11

territory falls under the provisions of the archipelagic States.25 Archipelagic States can draw

its baseline along the outer limits of the group of islands and the waters within the baseline are

internal waters, with a special regime for innocent passage through those waters.26

1.1.3 Establishment of different maritime zones

The establishment of the different zones, the territorial sea, the contiguous zone, the exclusive

economic zone and the continental shelf, is important for the sovereign rights of the coastal

State and rights of the flag State. The territorial sea, contiguous zone and EEZ must be claimed

and established by States, otherwise they cannot enjoy any sovereign rights, the continental

shelf is the only one that is established automatically.27 The sovereign rights of the States are

important for the enforcement of international rules and regulations. For example; who may

take action against foreign vessels? Who may take action against foreign vessels depends on

the rights that have been given to States by international rules and regulations, such as the

LOSC. After the exclusive economic zone the high seas begin, the waters of the high seas may

be above the extended continental shelf of the coastal State. The sovereign rights of the coastal

State differ in each zone. The territorial sea gives the coastal State full sovereign rights as an

extension of the sovereign rights on land and over the internal waters.28 The sovereign rights of

the coastal State can only be limited by the right of innocent passage. The contiguous zone is a

zone continuous to the territorial sea and the coastal State has rights to prevent and punish

infringements.29 The exclusive economic zone gives the coastal State the right of exploitation,

exploration, management and conservation of the natural resources in this zone.30 The

continental shelf is the seabed and the subsoil measured 200 nautical miles from the baseline,

this can be exploited and explored by the coastal State for its natural resources.31 The rights of

the coastal State over the continental shelf do not affect the rights of the waters above the

continental shelf.32

1.1.4 The high seas

The high seas is governed by the principle of freedom. In article 87 LOSC all freedoms of the

high seas are laid down. The definition of the high seas in the convention on the high seas 1958

was very clear, everything that is not territorial sea or internal waters is the high seas. In the

LOSC there is no definition, article 86 states that the provisions are applicable to all parts of

the sea that is not territorial sea, internal waters, archipelagic waters. 33 The same issue arises

are provided with food and other supplies from the mainland, economic life does not mean that this must be from

a commercial perspective. 25 Article 46 LOSC 1982 26 Article 49 (4) LOSC 1982 and 47 LOSC 1982 27 Italy for example did not establish an EEZ. 28 Article 2 LOSC 1982 29 Article 33 LOSC 1982 gives the coastal States limited sovereign rights to punish and prevent infringements,

but the coastal State does not have legislative rights in this zone, the coastal State can prevent and punish

infringements committed in the territorial sea. In the exclusive economic zone the coastal State has legislative

rights to govern the exclusive economic zone in accordance with the LOSC. Some say that because the coastal

State has legislative right over the exclusive economic zone, the coastal State also has the legislative right over

the contiguous zone. 30 Article 56 LOSC 1982 31 Article 77 LOSC 1982 32 There can be a continental shelf without the exclusive economic zone above the continental shelf according to

article 78 LOSC 1982, but there cannot be an exclusive economic zone without a continental shelf beneath it as

stated by Yoshifumi Tanaka in the book International Law of the Sea, 2015, Cambridge, page 139 33 If a State does not establish the EEZ, as the case with Italy, the high seas begins after the contiguous zone.

12

with the EEZ in article 55 of the LOSC. This issue arose with the establishment of the EEZ in

the UNCLOS III, some States thought that the EEZ was part of the high seas with a special

regime for coastal States and some States thought that the EEZ was part of the jurisdiction of

the coastal States with a few freedoms of the high seas. This discussion could not be resolved

and non-definitions were created for the EEZ and the high seas, whereby the EEZ has three of

the six freedoms. The high seas is governed by six freedoms; freedom of navigation, freedom

of overflight, freedom to lay submarine cables and pipelines, freedom to construct artificial

islands and other installations permitted under international law, the freedom of fishing with

restrictions under the LOSC and the freedom of scientific research.34 The high seas is under no

circumstance subjected to the sovereignty of a single State, States may only subject their vessels

flying their flag under their sovereignty and the flag State may only exercise their sovereignty

over the vessel flying their flag.35 Every State has the right to sail vessels flying their flag, but

not every State exercises their duties of flag State.36 There are several States that are so called

‘‘flags of convenience’’ or ‘’open registry States’’, these States grant vessels their flag, but do

not supervise these vessels and most of the time these vessels do not have a real connection to

this State. A connection between the flag State and the vessel could be in the form of nationality

of the owner of the vessel, if the vessel is built in the flag State or if the company that owns the

vessel is situated in the flag State. This real connection with the flag State is also called the

‘’genuine link’’.37 Most of the time these States are developing States, for example Bermuda,

Marshall Islands, Malta, Cyprus, Panama, Liberia or the Bahamas.38 For the shipowners it is

very cheap to register at one of these States. The registry proceedings are cheap and after

registry there is little to no supervision. These States do not comply with the duties laid down

in article 94 of the LOSC 1982, they do not survey the quality and the safety of the vessel and

crew. The vessels flying a ‘’flag of convenience’’ is a big problem for the States that do comply

to all the duties laid down in the LOSC and other international rules and regulations. If this

vessel polluted the sea or is fishing contrary to international rules and regulations, there is no

supervision of these activities on the high seas.

1.1.5 Right of visit on the high seas

The only protection on the high seas are the warships of other States, they may intervene if they

have reasonable ground. Warships of other States have the right to visit another vessel on the

high seas if they have reasonable ground, this right of warships is an exception to the exclusive

jurisdiction of the flag State.39 A warship is a non-commercial vessel acting in the name of a

State, belonging to the armed forces of that State and makes this recognizable to the outside

world with external marks that distinguishes that vessel from commercial vessels. A warship of

any State has the right to visit a commercial vessel of any State on the high seas, if there is

reasonable ground. There is an exhaustive list for these reasonable grounds; the warship must

suspect that the other vessel is engaged in piracy, engaged in slavery or engaged in unauthorized

broadcasting,40 or if the warship suspects that the other vessel is without a nationality, the other

34 All these freedoms of article 87 LOSC 1982 can have restrictions within the LOSC, such as the freedom to

construct artificial islands and other installations are under the restriction of part VI of the LOSC. 35 Article 89 and 94 LOSC 1982 36 Article 90 and 84 LOSC 1982 37 Article 91 (1) LOSC 1982 38 Y. Tanaka, ‘The international law of the sea’, Cambridge, 2015, page 162. 39 Article 110 LOSC 1982 states that the warship has the right to visit another commercial vessel with reasonable

grounds, a warship does not have the right to visit another warship. Warships and other governmental vessels

have international immunity on the seas in accordance with article 32 LOSC 1982. 40 If the warship suspects that a vessel is engaged in unauthorized broadcasting the flag State of the warship must

have jurisdiction under article 109 LOSC 1982.

13

vessel is refusing to fly its flag and is therefore flying the same flag as the warship. A warship

is also allowed to visit another vessel if this power derives from other treaties, for example

fisheries treaties that try to protect the fish stock.41 The first sentence in article 110 (1) LOSC

states that; ‘Except where acts of interference derive from powers conferred by treaty, a warship that

encounters on the high seas a foreign ship, (..), is not justified in boarding it unless there is reasonable

ground for suspecting that.’, is very important for the protection of the biodiversity in the sea. In

the exhaustive list of article 110 (1) LOSC protection of the biodiversity in the sea is not

mentioned in any aspect, while it is a very important and a well-known problem on the high

seas.

1.1.6 Hot pursuit

Another exception to the exclusive jurisdiction of the flag State is the right of hot pursuit of the

coastal State.42 If a foreign vessel commits an act violating the law of the coastal State in the

coastal State’s jurisdiction, the internal waters or in the territorial sea, the coastal State has the

right to pursuit this vessel, even on the high seas. Hot pursuit is only permissible under certain

circumstances, the hot pursuit may only be undertaken by a warship authorized by the State, if

there are good reasons to believe that a violation of the laws and regulations of the coastal State

has taken place43, the hot pursuit must start in the internal waters, the territorial sea, contiguous

zone or exclusive economic zone44, the pursuit may only start after a signal sent to the vessel

that can be heard or seen by the vessel, the pursuit of the vessel must be continuous until the

vessel is arrested45 and the warship or aircraft must stop the pursuit if they pursuit into the

territorial waters of a foreign State or its own territorial water. In the case of the Tenyu Maru in

1910, a Japanese vessel had sent boats out hunting for seal at the Pribilof Seal Island, the boats

were caught by a United States (US) revenue cutter.46 The court in this case ruled that the

‘’mother vessel’’ that had sent out its boats to slaughter the seals was just as guilty for the act

as the boats acting on it, this is called constructive presence. With constructive presence the

own boats of the mother vessel are used for the illegal activities while the mother vessel stays

at a safe distance in the high seas, if the boats acting under the command of the mother vessel

are on their own standing vessels, this is called extensive constructive presence. The US could

arrest the mother vessel Tenyu Maru for constructive presence and the acts of the boats that

killed the seals.

41 Y. Tanaka, ‘The international law of the sea’, Cambridge, 2015, page 165 states that if powers derive from

other treaties, the warship also has an right to visit in accordance to article 110 (1) LOSC 1982 42 Article 111 LOSC 1982 43 In the circumstance that the warship has good reasons to believe that the foreign vessel has committed an act

violating the rules and regulations of the coastal State in its jurisdiction, this act can also be an attempt to act in

violation with the rules and regulations. In the draft of article 23 of the Geneva Convention on the law of the sea,

an equivalent of article 111 LOSC 1982, this issue arose and the draft confirmed that an attempt is implied in this

article as stated in the book Y. Tanaka, ‘The international law of the sea’, Cambridge, 2015, page 169. 44 Y. Tanaka, ‘The international law of the sea’, Cambridge, 2015, page 165 ‘the right of hot pursuit is to apply

mutatis mutandis to violations of laws and regulations of the coastal State in the exclusive economic zone or on

the continental shelf, including safety zones surrounding continental shelf installations.’ This means that the hot

pursuit can also start from the exclusive economic zone if there is a violations of the rules and regulations of the

exclusive economic zone instead of only the internal waters, territorial sea and contiguous zone in accordance

with article 111 LOSC 1982. 45 The warship or aircraft that had given the stopping sign to the vessel must pursuit the vessel hot and

continuous, the pursuit is still continues if another warship or aircraft takes over. 46 Y. Tanaka, ‘The international law of the sea’, Cambridge, 2015, page 171

14

1.1.7 The Area

The Area is the bottom of the sea and the subsoil thereof beyond the continental shelf of States.47

The Area begins where the continental shelf of the States end. The Area is governed by the

principle of common heritage of mankind and is protected in a great extend through a body

established by the LOSC, the International Seabed Authority (ISA). The Area was an issue of

discussion during the preparation of the UNCLOS III, due to the growing technological

possibilities to extract natural resources from the seabed in the high seas. First it was impossible

to reach a great part of the seabed in the high seas, but due to this new technological discoveries

the seabed and the ocean floor is in reach. This brings a lot of new problems for the protection

of the resources on and in the seabed and the ocean floor. There are a lot of resources that States

want to extract from the seabed and the ocean floor, for example the polymetallic nodules.

These polymetallic nodules are round stones, the size of a golf ball, that consist of metallic

elements such as copper, nickel, cobalt and other expensive metals. If these nodules are

extracted from the seabed, the seabed itself will be disrupted and the marine life that is living

there will be affected. For these reasons the States and organisations participating in the

preparation of the UNCLOS III wanted to protect the seabed and the ocean floor beneath the

waters of the high seas. The ISA is responsible for the protection of this Area. Not one State

may exploit the Area at this moment, the ISA only gives exploration contracts to States and

companies. It is the intention of the ISA to give exploitation contracts in the future, but that will

not be the case in the next few years.

Today the ocean floor is governed by the principle of the common heritage of mankind and

protected from exploitation by States, while the waters above the seabed are governed by the

principle of freedom. These two principles are the complete opposite of each other. Is there a

great difference between the high seas and the seabed? In both spaces live a wide range of

species and natural resources. What is the difference between the destruction of the seabed and

its biodiversity by exploitation of the natural resources and the destruction of the marine spaces

and its biodiversity in the high seas by exploiting the high seas? In the time the polymetallic

nodules were discovered48 The biggest concerns of States were not the destruction of the

biodiversity, but that the exploitation of the nodules would give inequality between developing

and developed States. In that time there was not any technology that could harvest these

nodules, but when the technology would be available the developed countries would be the first

to harvest the nodules. This would raise inequality between States and the companies that could

not harvest nodules from the seabed, therefore the States decided during the discussion of the

draft for the UNCLOS III that the Area needed the protection of the principle common heritage

of mankind. The regime of the high seas is a very old, in contrary to the common heritage of

mankind applicable to the Area. The freedom of the sea was addressed by Hugo Grotius in 1609

already.49 Hugo Grotius argued for the freedom of the seas and the international free trade over

the seas. The freedom of the seas is banned to the outer limits of the coastal State jurisdiction,

the high seas. The freedom of the seas is carved into the law of the sea and one could not

imagine that the freedom of the high seas would not exist. Yet the freedom of the seas is not

47 The regime of the Area is laid down in part XI of the LOSC, while the definition of the Area is to be found in

article 1 (1) LOSC 1982. 48 The nodules were found for the first time in the Arctic Ocean of Siberia as stated in the article of the ISA

‘polymetallic nodules’ and in 1872-77 expedition HMS Challenger, later researchers discovered that the

polymetallic nodules could be found in oceans all over the world. 49 H. Grotius, ‘Mare Librium’, Leiden, 1609 or the translation H. Grotius, ‘The freedom of the high seas or the

right which belongs to the Dutch to take part into the East Indian trade’, Oxford University press, 1916

15

what it used to be anymore, the freedom exists but with more restrictions every year, due to

new conventions that govern the high seas.50 Is the freedom of the high seas outdated? Should

the high seas be protected from human activities just like the Area? The marine spaces and the

biodiversity in the high seas and oceans are degrading at such a speed, that the protection of the

high seas is not a question any longer.

1.1.8 Protection of the biodiversity in the Law of the Sea Convention

In section 2 of part VII of the LOSC the protection of the marine environment is taken into

account, article 116, 117 and 118 state that the States must adopt legislation to protect the living

resources in the high seas, that States must co-operate in making legislation to protect the living

resources in the high seas and that all data and information about the living resources and

exploitation of them must be exchanged. The States must finally determine an allowable catch,

the maximum amount of a fish species that may be caught by the fishing industry. This

maximum amount, the sustainable yield, is based on the best scientific research available and

the food chain must be taken into account. If there is such a situation, than not only the shrimp

will be overexploited and almost extinct, also the fish depending on the shrimp will be extinct,

eventually the whole ecosystem is out of balance. If an ecosystem is out of balance, this could

have devastating effects on hundreds of species that cannot be repaired easily.51 If the State

itself is not capable to reach the allowable catch, the State must give other surrounding States

the opportunity to catch their fish in their exclusive economic zone in agreement with the coastal

State, this does not apply to the high seas.52 In the eyes of the protection of the sea, this is a

rather unsatisfying obligation. This gives the States a reason to exploit the full fish stock every

year, otherwise the fish stocks are not fully utilized according to article 62 of the LOSC 1982.53

States are also concerned about the highly migratory fish stock, because States have to work

together to preserve the fish stock. If the fish first swims in the jurisdiction of State A where

the fish is caught in large numbers, State B has not many fish left when the stock swims through

their jurisdiction. The Parties discussing the UNCLOS III acknowledge the high demand for

regulatory legislation on this subject for the exclusive economic zone, not for the high seas

unfortunately. In article 63 until 66 the LOSC deals with the migratory fish stock, the States

must co-operate with each other to ensure the protection of these fish stock. The articles are

divided in different kind of migratory forms or kind of species. In article 63 and 64 of the LOSC

the migratory and highly migratory species are mentioned, these migratory stock live in the

exclusive economic zone of two or more States, these States have to make agreements on the

preservation of these fish stock. Marine mammals are specific species living in the water, such

as dolphins, whales, seals, killer whales and many more, these marine mammals are very

sensitive for extinction and therefore these marine mammals must be the centre of agreements

50 UN, Resolution A / RES / 69/292, ‘Development of an International Legally binding instrument under the

United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological

diversity beyond areas of national Jurisdiction’, 19 June 2015, www.un.org 51 Article 119 (1) (b) LOSC 1982 states that the species associated with or depend upon harvested species must

be taken in consideration. 52 The surrounding States have a right to catch their fish in jurisdiction the coastal State, but only if the coastal

State is not capable to reach the allowable catch under article 65 LOSC 1982, this must be done in agreement

with the coastal State. If other States catch fish in the exclusive economic zone of the coastal State, the foreign

vessels must apply to all rules and regulations made by the coastal State for the purpose of fishing, for example

the kind of fish, how many fish, what kind of vessel can be used or the fees that have to be paid to the coastal

State. 53 In article 62 of the LOSC 1982 the utilization of the fish stock is laid down, other States must be able to catch

the surplus of the allowable catch of the coastal State to fully utilize all fish stock.

16

between States, where these mammals live in or migrate through.54 Finally the distinction is

made between anadromous species and catadromous species; the anadromous species migrate

from the sea to fresh water to spawn. An example of an anadromous species is salmon. The

catadromous species move the other way around. The catadromous species migrate from fresh

water to sea water to spawn, such as eels.55 These fish need extra agreements between the States

in which they migrate, to secure the spawn for the next generations and prevent over-

exploitation.

In section 5 of part XII the LOSC stipulates that States must adopt legislation to prevent

pollution of the seas,56 which is a great danger to the marine environment and the biodiversity

in the seas. Section 6 of part XII of the LOSC states that States must adopt legislation to enforce

the rules and regulations of pollution in section 5.57 In all these articles the LOSC commands

the States to adopt legislation, to make sure the protection of the sea is ensured in national

legislation. The LOSC wants States to protect the sea bottom up, this gives the States freedom

to make sure the legislation is integrated and implemented in national law. The LOSC is flexible

to future problems; if States adopt a convention for a specific problem not foreseen. In the way

the LOSC composed these articles it could also give problems; the States have discretionary

power to adopt the legislation that they think is suitable. The States can also adopt their own

legislation to enforce this legislation, which could be milder in one State than another. The

articles also mention that the States must adopt and enforce legislation in accordance with

international rules and regulations, this gives room for international agreements and

conventions. The LOSC leaves room for conventions that specialize in the protection of specific

species and regions through these articles. This room in the LOSC gives a wider scope to this

convention and even better protection of the sea, if these additional conventions are more

specific than the LOSC. The LOSC can also be viewed as an umbrella convention for the law

of the sea and the protection of its biodiversity.

1.1.9 Enforcement powers of the States

There are three groups that can have juridical powers over the vessels navigating through

international waters. The flag State, the port State and the coastal State. The first group is the

flag State that has jurisdiction over vessels, most of the time the vessel is registered in the flag

State and so the flag State has jurisdiction over the vessel. The flag State is the one that has

jurisdiction, but often that means a burden for the flag State to have the responsibility over the

vessel. The flag State has the responsibility that the vessel is registered, seaworthy, fulfilling

all international legal responsibilities, does not participate in illegal activities and carries all

certificates and document that can verify the conditions of the vessel and its crew.58 If the vessel

flying their flag has committed a violation, the flag State must investigate this violation and if

54 Article 65 LOSC 1982 55 Article 66 and 67 LOSC 1982 56 For example article 210 (1) LOSC states that:’ States shall adopt laws and regulations to prevent, reduce and

control pollution of the marine environment by dumping’. 57 Article 213 (1) LOSC 1982 58 Article 217 (1), (2) and (3) LOSC 1982 lays down the responsibility of the flag State, the flag State must

ensure that vessel flying their flag do not sail the sea before the vessel applies to all international rules and

regulations. The flag States will ensure effective enforcement of those rules and execute inspections to verify

the vessel’s documents and certificates.

17

necessary take measures.59 The problem with flags of convenience is that those States do not,

do not want to, or cannot fulfil their responsibilities under international law. The vessels flying

their flag do not have an annual inspection of the crew, seaworthiness of the vessel or the

documents and certificates of that vessel. Flags of convenience are most of the time developing

countries such as Panama, Bermuda, Marshall Islands or Malta. Shipowners choose for these

flags of convenience when they do not want regular inspections or want to lower the financial

costs of the vessel.

In article 218 LOSC the port State gets competences to enforce international rules and

regulations. The port State may investigate a vessel that enters the port voluntarily if there is

evidence to support a discharge by the vessel in violation of international rules and

regulations60, or a vessel may be upheld in that port if the port State detected that the vessel is

not seaworthy.61 There are many cases known in which the States give fines for un -

seaworthiness or upheld vessels for inspections, while the vessels have an excellent state of

record. Not only the LOSC provides for rules and regulations on port State control, the

International Maritime Organisation (IMO) created many conventions with port State control

regulations. There is a reference in article 218 of the LOSC to the IMO: ‘’(..) in violation of

applicable international rules and standards established through the competent international

organization(..)’’. This phrase in article 218 (1) of the LOSC is important, because the competent

international organisation is the IMO. The competent international authority is one folded, this

means that the reference is to one organisation in particular. The LOSC has established only

one competent international organisation that creates international rules and standards, the

IMO. In article 60 (3) the IMO is also mentioned; ‘’ the competent international organization’’.

The IMO created in particular legislation for protection of the sea against polluting discharges

from the operation of vessels at sea, the MARPOL convention 1973.62 The reference indicates

that the MARPOL Convention could be used as a legal ground for the application of article 218

of the LOSC. The MARPOL Convention will be discussed in paragraph 3.1.2. The

investigation of the port State is mostly done by the Port State Control. Port State Control

(PSC) is the inspection of foreign vessels in national ports to verify that the condition of the

vessel and its equipment comply with the requirements of international regulations and that the

vessel is manned and operated in compliance with these rules. For an uniform and effective

PSC, legislation is made between different States, such as the Paris Memorandum of

Understanding (Paris MoU).63 The Paris MoU comprises out of 27 participating States of which

mainly European States joint forces on port state control to unify their activities.64 59 Article 217 (4), (5), (6) LOSC 1982 gives other States also responsibility to address violations to the flag State

of the vessel that commits the violation, so the flag State can start an investigation. When necessary, the flag

State can ask the assistance of another State in order to investigate the vessel that committed a violation. 60 If the discharge is committed in jurisdiction of another State than investigation is only possible upon request of

that other State, in accordance with article 218 (1) LOSC 61 Article 219 LOSC gives the port State enforcement power to take administrative measures against vessels that

do not seem seaworthy and thereby could harm the marine environment, the vessel can be upheld in the port or at

an offshore installation or be sent to the nearest repairing facility. 62 IMO, ‘’ International Convention for the Prevention of Pollution from Ships’’, 2 November 1973 (MARPOL

convention) 63 ‘’The Paris Memorandum of Understanding on Port State Control’’, 1 July 1982, www.parismou.org 64 In addition to the Paris MoU there are other agreements, such as ‘’the Memorandum of Understanding on Port

State Control in the Asia-Pacific Region’’, amended 20 November 2008 http://www.tokyo-mou.org, ‘’Latin

American Agreement on Port State Control of Vessels’’, 1992, amended 2008, http://www.acuerdolatino.int.ar,

‘’Caribbean Memorandum of Understanding on Port State Control’’, 1996, http://www.caribbeanmou.org,

‘’Memorandum of Understanding on Port State Control in the Mediterranean Region’’, amended 27 November

2006, http://www.medmou.org, ‘’Indian Ocean Memorandum of Understanding on Port State Control’’,

amended October 2003, http://www.iomou.org, ‘’Memorandum of Understanding on Port State Control for the

West & Central African Region’’, 30 October 1998, http://www.abujamou.org, ‘’Black Sea Memorandum of

18

Control by the coastal State is rather similar to port State jurisdiction in article 220. Article 220

distinguishes three situations, first the situation that the vessel is in a port or offshore terminal

of a coastal State, second that the vessel violates rules and regulation of the coastal State while

navigating through the territorial sea and the last distinction is made by vessels that navigate

through territorial sea or exclusive economic zone but have violated international rules and

standards in the exclusive economic zone. The first situation gives the coastal State the power

to institute proceedings if the vessel is voluntarily in a port or offshore terminal of that State.65

The second situation gives the coastal State power to institute physical inspection of the vessel.

The vessel must be violating rules and regulations of the coastal State in respect to pollution,

during the voyage through the territorial sea and the coastal State must have clear grounds for

believing that vessel violated those rules.66 The last situation covers vessels navigating through

territorial sea or exclusive economic zone of the coastal State, but violating the international

rules and standards in respect with pollution in the exclusive economic zone.67 The last situation

could give the coastal State three jurisdictional powers over the vessel. The first is the power to

request information, the second the power to physically inspect the vessel and the last power of

the coastal State is to detain that foreign vessel.

For all violations applies that the vessel must have violated:’’ laws and regulations adopted in

accordance with this Convention or applicable international rules and standards for the prevention,

reduction and control of pollution from vessels’. In the phrase of the first subsection of article 220

of the LOSC the competent international organisation is not mentioned, the State is to be

expected to implement all international rules and standards into its national law. What are these

international rules and standards? The LOSC mentions these applicable international rules ,

standards, regulations and practices in different articles throughout the LOSC. For example

article 21 (2) ‘’international rules or standards’’, article 197 ‘’international rules, standards and

recommended practices and procedures’’, article 208 ‘’international rules, standards and

recommended practices and procedures’’, article 209 ‘’international rules, regulations and

procedures’’ or 211 (6) ‘’international rules and standards or navigational practices’’. These

international rules , standards, regulations and practices do not refer to the LOSC, because the

State is already a party to the LSOC and therefore the LOSC is already applicable. Customary

international law would not be effective, now all States are already bound by these customary

rules. Then the last option would be conventions and agreements whereby the party States are

not yet a party to, such as the IMO conventions. But why use international rules and standards

instead of the competent international organization? The only explanation for the difference

between those two phrases is that the one is stricter than the other, the competent organisation

refers to the IMO and the international rules and standards must be wider interpreted.

Understanding on Port State Control’’, amended 1 January 2006, http://www.bsmou.org, ‘’Riyadh

Memorandum of Understanding on Port State Control in the Gulf Region’’, June 2005,

http://www.riyadhmou.org. 65 Article 220 (1) LOSC 1982 gives the coastal State power to institute proceedings over a foreign vessel

entering its port, these proceedings must be in accordance with Section 7 of the LOSC 1982. 66 Article 220 (2) LOSC 1982 67 Article 220 (3), (5) and (6) LOSC 1982

19

To request information from and of that vessel,68 the coastal State must have clear grounds that

the foreign vessel violated international rules and standards in respect with pollution or laws

and regulations of the coastal State in accordance with international rules and regulations.69 The

coastal State may undertake physical inspection on a vessel when the conditions are met in

subsection 5 of article 220 LOSC. There must be clear grounds of a violation, the violation

must be of applicable international rules and standards, there must be a substantial discharge

that is causing threatening significant pollution and the vessel is refusing to give any

information or that information is not correct or insufficient. The conditions for the detention

of a foreign vessel are; that there must be clear objective evidence of a violation of international

rules and standards or State rules and regulation, the vessel made an illegal discharge and that

discharge is causing major damage to or creates a threat of major damage to interest of the

coastal State or the resources in its seas.70 The different stages in article 220 LOSC is clarified

in the following graph.

68 The coastal State can request information about the vessel and from the vessel, but only information relating to

that violation, regarding the identity, port of registry and the last port of call, to next port of call and all other

information that could be of relevance to the violation. 69 International rules and regulation or standards in respect to pollution could be for example the IMO,

‘’International Convention for the Prevention of Pollution from Ships’’, 2 November 1973 (MARPOL)

Convention, the upcoming IMO, ‘’The International Convention for the Control and Management of Ships

Ballast Water and Sediments’’, 13 February 2004, ‘’Convention or the Prevention of Marine Pollution by

Dumping of Wastes and Other Matter, London’’, 13 November 1972 70 The interest of the coastal State is the coastline, the waters adjacent to the coastline and the particular maritime

zones measured from the coastline. The damage to resources could be in the territorial sea or the exclusive

economic zone of the coastal State.

Article 220 enforcement by coastal States

Subsection 1:

vessel is voluntarily in a port or offshore

terminal of a coastal State and violated any

law or regulation adopted in accordance with the convention.

The power of the coatsal State may

institute proceedings, in acccordance with

section 7, against that vessel.

Subsection 2:

the vessel violates rules and regulation of

the coastal State or international rules

concerning pollution from vessels, while

navigating through the territorial sea.

The power of the coastal State to

undertake physical inspection and

institute proceedings against that vessel.

Vessels that navigates through territorial sea or exclusive economic zone and violated international rules and standards on prevention of pollution from vessels in the exclusive economic zone of the coastal

State.

Subsection 3:

the power of the coastal State to

request information from that foreign

vessel to determine a violation.

Subsection 5:

the power of the coastal State to

physically inspect the foreign vessel when comitted a

substancial discharge causing a threat of significant

pollution

Subsection 6:

power of the coastal State to

detain that foreign vessel

whereby a discharge causes major (threat of)

damage.

20

A discharge could be exhaust gasses, discharge of chemicals or oil, discharge of sewage or

garbage, oil spills from the engine room or from tank washing, discharge of ballast water or

antifouling discharge from the hull. These discharges are regulated in the MARPOL

convention that will be discussed in the following paragraph.

1.2 The International Convention for the Prevention of Pollution from Ships 1973

The International Convention for the Prevention of Pollution from Ships 1973 (MARPOL

convention) is one of the main conventions relating to pollution from the operation of vessels

that could harm the marine environment and the biodiversity in the sea. The MARPOL

convention is divided into several annexes, every subject has its own annex. Since the adoption

of the MARPOL convention on November 2nd 1973 at the IMO, the convention has been

amended by several conventions and protocols. The convention applies to vessels flying the

flag or is under the authority of a party State. The convention does not apply to any

governmental vessel for non-commercial purposes.71 The MARPOL convention is divided in 6

annexes, the first annex covers the prevention of oil pollution, annex II covers the prevention

of pollution by liquid chemicals, annex III covers the prevention of pollution of dangerous

substances in packaged form, annex IV covers the prevention of pollution by sanitary waste,

annex V covers the prevention of pollution of garbage and the last annex covers the prevention

of air pollution. States can however create more extensive national legislation, to comply with

the MARPOL convention and the implementation of this convention into national law. Not all

annexes will be discussed in this paragraph, only the annexes relevant to the protection of the

biodiversity in the high seas. Annex VI prevents air pollution, this annex will not be discussed

in this paragraph. Air pollution does not directly harm the biodiversity in the sea.

1.2.1 Annex I

In the first Annex the prevention of oil pollution by operation of vessels or oil tankers is

covered. In Annex I the distinction is made between the discharge from operating a vessel or

the discharge from an oil tanker and the distinction between special areas and other parts of the

sea. The oil tankers must fulfil more requirements than other vessels and the special areas are

more protected than the other parts of the sea. Those special areas for Annex I are the North

Sea, the Irish Sea, the Celtic Sea, the English Channel, the Mediterranean Sea, the Baltic Sea,

the Black Sea, the Gulfs area, the Red Sea, the Gulf of Aden and the Arctic region. The

discharge of vessels navigating through normal waters is prohibited, unless all conditions of

regulation 16 of the MARPOL convention are met, moreover there are different conditions set

for oil tankers and other vessels.72 For a vessel above the 400 gross tonnage or if an oil tanker

71 Regulation 3 MARPOL convention 1973 72 For example the conditions for oil tankers are that the tanker is more than 50 nautical miles from land, the tanker

is not in a special area, the tanker is navigating continuously, the oil content does not exceed 30 litres per nautical

mile, cannot exceed 1/15,000 of the total cargo or 1/30,000 for new tankers and the tanker has an oil discharge

monitoring and control system to ensure the requirements are met. For vessels of 400 gross tonnage and more or

other than oil tankers, the conditions are that the tanker is not in a special area, the tanker is navigating continuously

which is not a requirement for oil tankers under 400 gross tonnage or other than oil tankers, the discharge does not

exceed 15 parts per million and the vessel must have operation equipment as required by regulation 16 of this

Annex, for vessels under the 400 gross tonnage and other than oil tankers the vessel needs to have installations to

store all oil residue and bring it to the port reception facilities.

21

does not have an oil discharge monitoring and controlling system and oil filtering equipment,

the vessel may not discharge any oil except when the special conditions are met.73 Not only

does annex I regulate the discharge of oil and oily mixtures, annex I also regulates the ballast

tanks and building requirements. Putting ballast tanks in the position of the most vulnerable

parts of the vessel could make a great difference in case of damage to those parts of the vessel.

Another method used by this Annex is to minimise the amount of cargo into the tanks, if there

is less oil in one tank, in case of damage to that tank, the total amount of oil discharge cannot

be more than the total amount in that tank. Furthermore annex I provides prescriptions for the

cleaning of the cargo holds, but also the separation of ballast tanks and cargo tanks, the ballast

tanks and ballast water is discussed in paragraph 1.3.3.74 For the prevention of oil pollution

caused by accidents, annex I made a double hull mandatory for all oil tankers. This started in

1973 and was amended three times since. After every major accident with an oil tanker the time

table for phasing-in of the double hull was limited and had to be installed quicker. The

introduction of the mandatory double hull for oil tankers was in 1992, they made a distinction

between pre MARPOL tankers, oil tankers built before 1982, and MARPOL tankers, tankers

dating after 1982.75

The first accident that brought change to this regulation was the Exxon Valdez in 1989. This

incident was a major oil tanker accident near the coast of Alaska. The Exxon Valdez stranded

on the Bligh Reef and spilled up to 132 million litres of crude oil in the sea, due to rupture of

the hull of the vessel.76 The biodiversity near the coast was destroyed, approximately 500.000

seabirds, 5.000 otters, many whales and a lot of other animals, living near the coast, were

killed.77 Not even all oil could be removed, a report from the American Department of

Commerce noted: ‘’NOAA and other scientists estimated that the clean-up itself removed only a small

portion (a little more than 10 percent) of the spilled oil from the environment. By far, the largest part of

the total was naturally weathered or degraded ‘’ 78 After the Exxon Valdez accident, not only the

MARPOL was amended but also the American legislation changed. In the United States of

America (US) the Oil Pollution Act 1990 (OPA) was adopted with the introduction of the

double hull for oil tankers, the US is not a party to the MARPOL convention or the LOSC.79 In

1992 annex I of the MARPOL convention was amended in regulation 13 F and G. The oil

tankers that were built before July 6th 1996 are obliged to have a double hull within 25 till 30

73 Those conditions are that the vessel in not in a special area, the vessel is more than 12 nautical miles from land,

the vessel is navigating continuously, the discharge does not exceed 100 parts per million, the discharge is not

coming from the cargo pump room or from oil cargo residues and the vessel has an operative oily-water separating

system with the approved design according to regulation 9 (7) MARPOL convention 1973 74 Regulation 13 MARPOL convention 1973 75 The MARPOL convention entered into force in 1982. The year that the keel of the vessel is laid, is the year

that must be taken into account for this provision. This means that the oil tanker of which the keel was laid

before 1982 is categorized as a pre-MARPOL tanker. 76 After the accident in 1989, the Exxon Valdez was repaired and taken into use again under different names and

under different owners, the vessel was finally put out of service in 2012. 77 After the oil spill, the American authorities investigated under the Department of Commerce the Office of

response and recovery, the biodiversity in the region of the oil spill. The research concluded that after 25 years

the biodiversity in the region was still not totally recovered from the oil spill. 78 NOAA’s Scientific Support, Monitoring, and Research ‘’ Twenty-Five Years After the Exxon Valdez Oil

Spill.’’, March 2014, page 5 and 6,

http://response.restoration.noaa.gov/sites/default/files/Exxon_Valdez_25YearsAfter_508_0.pdf 79 The aim of the Oil Pollution Act (OPA), 1990, 101 H.R.1465, P.L. 101-380, amended by P.L. 106–580, 29

December 2000, was to prevent and respond better and act quicker to prevent major oil spills and pollution. The

Exxon Valdez was a wake-up call for the US Government, during the accident of the Exxon Valdez the response

and the clean-up activities were poorly organized. After the investigation of the cause of the Exxon Valdez led to

the pore state of the vessel and poor state of the crew, the Oil Pollution Act of 1990 (OPA) had to make a change

in all that, to prevent accidents and to respond immediately in case there is an accident,.

22

years from that moment on. The oil tankers that were built on or after July 6th 1996 are required

to have a double hull or other system that would ensure the same amount of security against oil

pollution.80

10 years after the accident of the Exxon Valdez, the Erica had an accident near the coast of

France in December 1999, after departure from Dunkerque. The Erica had heavy weather

conditions during that night and eventually split in two, this caused a spill of 20.000 tons of

heavy fuel oil into the sea.81 The MARPOL was amended in 2001, regulation 13 F & 13 G of

annex I where changed and entered into force in September 2002. The single hull of all oil

tankers pre MARPOL and MARPOL must be phased out in 2015.82 The single hull for oil

tankers entering European ports were phased out differently, pre MARPOL oil tankers with

single hull were not allowed in European ports after 2007 and MARPOL oil tankers or oil

tankers with less than 5.000 DWT83 were not allowed with a single hull in European ports after

2015.84

The last big oil tanker accident caused an oil spill of major proportions, this was the accident

of the Prestige in November 2002. The Prestige broke in two near the coast of Spain This

accident caused pollution along coast with nearly 11.000 tons of oil spilled into the sea. This

disaster could have been minimized if the Spanish authorities had authorized the vessel to

enter its ports. The Spanish authorities denied the Prestige access to the port for repair

activities. After denied access by the Spanish authorities, the Prestige was denied access by

the France authorities to enter its ports, after that the Prestige was denied access by the

Portuguese authorities to enter the Portuguese waters. Besides the pollution caused by the

accident, another problem that had to be solved was the attitude of the authorities towards the

vessels in distress. Port authorities that deny access to a vessel in distress and do not give a

place of refuge to vessels in distress is incompatible with international rules and regulations.85

80 Regulation 1 (2) of the 1973 version of the MARPOL convention states:’’ in Paragraph (5) of the regulation

specifies that other designs may be accepted as alternatives to double hull, provided they give at least the same

level of protection against oil pollution in the event of collision or stranding and are approved in principle by the

MEPC based on Guidelines developed by the Organization’’ 81 Transaction of Maritime Science (ToMS), I. Čović, A. Šimunac, J. Veža, M.Slišković, G. Jelić-Mrčelić:

‘Methods of Pollution Removal after Tanker “Erika” Accident’ 2013, https://scholar.google.hr 82 There are 3 categories introduces by the second amendment of the MARPOL, category 1 are pre-MARPOL oil

tankers build before 1982 and have 20.000 DWT or more carrying crude oil or 30.000 or more carrying

petroleum oil. Category 2 exist out of so called MARPOL tankers, build in or after 1982 and have 20.000 DWT

or more carrying crude oil or 30.000 DWT carrying petroleum oil. The last category 3 exist out of oil tankers

with a DWT of 5.000 or more but less than the other categories. 83 Dead weight tonnage, the weight of the vessel with cargo on aboard in tonnages. 84 EC, Regulation 417/2002 ,‘’Accelerated phasing-in of double hull or equivalent design requirements for

single hull oil tankers’’, 18 February 2002, www.eur-lex.eu 85 The attention of the IMO was drawn when the Erica sunk in 1999, in the reports about the Erica the problem

of the place of refuge became clear. After the incident in 2000 with the Castor in the Mediterranean sea, the

place of refuge became a structural problem that had to be addresses by the IMO. The Castor faced heavy

weather and the hull was damaged on the first of January 2000, afterwards they determined that the damage was

due to accelerated corrosion. The Castor asked for refuge at the authorities of Morocco, Algeria, Greece, Tunisia,

Gibraltar and Spain, all States refused the request for refuge. The Castor was towed along the coast during those

requests, after a month another vessel had received the cargo of the Castor. After the Prestige incident, the IMO

created two resolutions on this subject to address this issue; IMO, Resolution ‘Guidelines on places of refuge for

ships in need of assistance’, A.949(23), November 2003 and IMO, Resolution, ’Maritime Assistance Services’

(MAS) A.950 (23), 5 December 2003. Before these resolutions, giving a vessel in distress a place of refuge was

custom international law, however not State practise as noticed. The power of the State’s authorities to protect its

coast from pollution is however laid down in several convention and regulations. In a battle of those two

conflicting rules, the rules for protecting the jurisdiction of a State is probably going to overrule, merely because

the rule is laid down in several conventions. The right for States to protect their jurisdiction from pollution is laid

23

Aside from the place of refuge and other issues the Prestige confirmed, the MARPOL

amended its Annex I again. The last adjustment stated that all single hull oil tankers from

category 1, the pre-MARPOL tankers should have a double hull in 2005 and all MARPOL

tankers or tankers with 5.000 DWT or more but less than category 1 or 2, category 2 and 3,

should have a double hull from 2010. The similar European regulation made the same change

and single hull oil tankers of category 1 are not allowed in European ports after 2005 and

tankers of category 2 and 3 are not allowed in European ports after the year 2010.86 In 2016,

all oil tankers are equipped with a double hull. Since the introduction of the MARPOL safety

requirements against oil spills the number of oil spills went down drastically. The following

graphs confirm this drop in oil spills around the world.

Source; UNEP FAO, IMO, UNDP, IUCN, WorldFish Center, GRIDArendal ‘’Green Economy in a Blue World’’,

2012, ISBN: 978-82-7701-104-2, www.unep.org/greeneconomy and www.unep.org/ regionalseas

Source; UNEP FAO, IMO, UNDP, IUCN, WorldFish Center, GRIDArendal ‘’Green Economy in a Blue World’’,

2012, ISBN: 978-82-7701-104-2, www.unep.org/greeneconomy and www.unep.org/ regionalseas

The port State authorities of a party State are obliged under regulation 8A of Annex I to

investigate the vessels entering their ports, if they have the mandatory certificate to confirm

compliance with the Annex I of the MARPOL Convention.87 The port State authorities may

undertake proceeding when the master and crew of the vessel do not seem to have the

down in the LOSC, the salvage Convention of 1989 and the Facilitation Convention. Which right has more

leverage? The IMO made it very clear that the right of refuge of a vessel in distress is more important than the

protection of State territory, especially in case of a possible oil pollution disaster. 86 EC, Regulation 1726/2003, ‘’ accelerated phasing-in of double-hull or equivalent design requirements for

single-hull oil tankers’’, 22 July 2003 changing the EC, regulation 17/2002, ‘’Phasing out single hull tankers

visiting European ports’’ www.eur-lex.eu 87 The certificate issued by the State party is accepted by all other State parties and must fulfil the requirements

of regulation 5, 6, 7 and 8 of Annex I

24

mandatory knowledge of the safety measures and the port authorities have clear ground for

believing so. The port State authorities may undertake physical inspection on the vessel and

when the situation requires it, detain the vessel for as long the vessel and its crew do not comply

with the regulations. The authorities of a State are obliged to investigate all information possible

to determine if the vessel is in violation with the MARPOL convention.88 If a vessel is

navigating through a special area this vessel must apply to stricter conditions or not discharge

at all.89 Only if there are special circumstances the vessel can be exempted from a violation of

the MARPOL convention. These circumstances could be an emergency situation, whereby the

safety of the vessel or people were at stake, the discharge is due to damage to the vessel or if

the discharge prevented a larger discharge into the sea. 90

1.2.2 Annex II

Annex II of the MARPOL convention prevents the pollution of the sea by liquid noxious

substances. Those liquid noxious substances could be petrochemicals,91 solvents, waxes,

additives for lubrication oil, vegetable oils and animal fat. These substances are mostly carried

in chemical tankers, these chemical tankers must fulfill all building requirements of the

International Bulk Chemical Code 1983 (IBC).92 Chemicals and noxious substances may also

be transported in packaged form on a container carrier or other general cargo carrier as will be

discussed in paragraph 1.2.3. For Liquefied Natural Gas (LNG) special tankers are made to

carry this gas in special cooled holds. Chemical discharges or spills could be even more

devastating for the environment than oil discharges and spill.93 Despite the devastating effects

of chemicals to the sea and its biodiversity, there is very little data recorded of chemical spills

and discharges. The Centre of Documentation, Research and Experimentation on Accidental

Water Pollution (Cedre) is an Organization that collects all data possible of spills and discharge

of vessels.94 The Cedre reported that more incidents happened during the carriage of chemicals

and hazardous substances in bulk (65% of all incidents registered in this report) than during the

carriage of chemicals or hazardous substances in packaged form (35% of all registered incidents

in the report).95 Incidents with chemicals happen with all kinds of chemicals, some substances

that sink in contact with water such as coal, rice, lead sulphur, wheat and deoxidized iron balls

are not commonly referred to as a pollutant or a danger to the environment, but those innocent

88 In (4) of the regulation the investigation should include: ‘’(..) in particular, the wind and sea conditions, the

track and speed of the ship, other possible sources of the visible traces in the vicinity, and any relevant oil

discharge records.’’ 89 Regulations 10 (2) MARPOL convention 1973, an exemption is made for the Arctic region, which is subjected

to subparagraph 2(a). If the discharge contains more than 15 parts per million, this must be delivered by the port

reception facilities. 90 Regulation 11 MARPOL convention 1973 states that if any discharge is made by the master or owner of that

vessel with wilful misconduct or gross / repeated negligence, the exemptions of article 11 do not apply. 91 Petrochemicals are not the same substances as petroleum oils, the petroleum oils fall under annex I and

petrochemicals fall under annex II, article 2 (3) of Annex I states that: ‘Where a cargo subject to the provisions

of Annex II of the present Convention is carried in a cargo space of an oil tanker, the appropriate requirements

of Annex II of the present Convention shall also apply.’ 92 IMO,’’ International Code for the Construction and Equipment of Ships carrying Dangerous Chemicals in

Bulk ‘’17 June 1983 (IBC) 93 J.M. Häkkinen & A.I. Posti, ‘Review of Maritime Accidents Involving Chemicals – Special Focus on the Baltic

Sea’, TransNav, June 2014, page 1, www.transnav.eu 94 The Cedre is an organisation established on 25 January 1979, after the accident of Amoco Cadiz that spilled

oil in the sea for the coast of Spain. 95 Cedre, E.Mamaca, M. Girin, S.le Floch, R.el Zir, ‘’Review of chemical spills at sea and lessons learnt’’, 31

July 2008, a technical appendix to the Interspill 2009 Conference White Paper ‘’Are HNS spills more dangerous

than oil Spills?" Cedre, Page 6, http://archimer.ifremer.fr/doc/00210/32092/30515.pdf

25

products as wheat or corn could have a devastating effect on the marine life and the biodiversity

in the sea. The Cedre stated that: ‘’Even a substance as insolvent as wheat, a food product, as

happened with the incident of the Fenes in 1997, can cause risks. Wheat fermentation in the

marine environment , in a toxic reaction, results in a release of hydrogen sulphur, a highly toxic

gas which makes it necessary for intervening personnel to wear respiratory protection at site.’’

The International Code for the Construction and Equipment of Ships Carrying Liquefied Gases

in Bulk (IGC Code) and the International Code for the Construction and Equipment of Ships

carrying Dangerous Chemicals in Bulk (IBC Code) created by the IMO, regulates the building

specifics for vessels carrying chemicals, to prevent any incidents relating to chemical pollution

in the sea from happening. Both codes are made mandatory by the Convention for the Safety

of Life at Sea 1974 (SOLAS) and the MARPOL. Chapter VII of the SOLAS Convention

regulates the carriage of chemicals in bulk.96

In the MARPOL Annex II the carriage of chemicals or hazardous substances, referred to as

liquid noxious substances in Annex II, in bulk is regulated. Annex III of the MARPOL

Convention regulated the carriage of liquid noxious substances in packaged form. In Annex II

chemical tankers are divided into categories: Category X, all substances that could present a

major hazard to human health or the sea and the resources thereof. Category Y, substances that

would present a hazard to the human health or the sea and the resources thereof. Category Z,

substances that would present minor hazard to the human health or the sea and the resources

thereof. In principle Annex II prohibits the discharge of all listed chemicals into the sea. All

residues and discharges of ballast water and tanks cleaning is prohibited, unless certain

conditions are met. Substances other than category X,Y and Z may be discharged into the sea,

because they do not form a hazard to the human health and the sea and the resources thereof.

One major exception is made for the Arctic region, all discharges are prohibited without any

exceptions.97 In 2007 an amendment introduced the new regulation 3 of Annex II,98 with the

introduction of the liquid noxious substances divided into categories. This concept was based

on the United Nations Globally Harmonized System for Hazard Classification and

Communication 2002 (GHS).99 With this amendment also vegetable oils were considered as a

chemical pollutant to the sea. Vegetable oils are definitely a pollutant to the sea and its

biodiversity, this is confirmed by the accident in Hawaii in 2013. The Matson cargo vessel

96 The first edition of the SOLAS was adopted in 1914, as a reaction to the Titanic incident. After several

amendments the SOLAS is one of the main conventions for the regulation of the safe operation of all kinds of

vessels, including vessels carrying chemicals or hazardous cargo. The main purpose of the convention is to

regulate the construction, equipment and the operational aspects of a vessel and give the flag State responsibility

for the compliance of these regulations or responsibilities for port State to verify and enforce compliance of

vessels entering their ports. Annex VII of the SOLAS convention regulates the carriage of dangerous goods by

vessels and is divided in smaller parts: part A regulates the carriage of dangerous goods in package form; part A-

1 regulates the carriage of solid dangerous goods in bulk; part B regulates the construction an equipment of the

vessels carrying dangerous liquid substances in bulk and made it mandatory for vessels to comply with the IBC

Code; part C regulates the carriage of liquid gas in bulk form and made it mandatory for vessels to comply with

the IGC code; part D covers the irradiated nuclear fuel and other radioactive substances carried in package form

and made it mandatory to comply with the IMO, ‘’International Code for the Safe Carriage of Packaged

Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Wastes on Board Ships’’, 1993, mandatory

since 2001 (INF Code). 97 Regulation 13 of Annex II of the MARPOL convention 1973. 98 The 2004 amendments changed the MARPOL, whereby vegetable oils must be carried as chemical substances

from that moment on, after a revision of all chemical substances and the effect of the sea and its biodiversity and

the human health. With the changes in Annex II also the IMO, ‘’International Bulk Chemical Code’’, 17 June

1983 (IBC Code) had an amendment in 2007. 99 UN, ‘’Globally Harmonized System for Hazard Classification and Communication’’, 13 December 2002

(GHS), www.unec.org

26

leaked over 233,000 gallons of vegetable oil into the sea. This accident caused major damage

to the sea and its biodiversity. This very viscous substance suffocated the biodiversity in the

water, and caused death immediately.100 The viscous substance drops to the sea bottom and

is very difficult to clean up. The only way to clean up these vegetable oils is to let bacteria

digest these substances. This is one of the differences between oil and vegetable oil spills, oil

is very difficult for nature to clean up itself, while vegetable oils have a sugary base that can

be digested easier by bacteria. The bacteria can clean up the vegetable oils from the water

eventually. The only solution the authorities had for the spill in Hawaii was pumping oxygen

into the water, so the animals could breathe.

1.2.3 Annex III

The previous mentioned annex II of the MARPOL convention 1973 regulates all chemicals in

bulk form, annex III of the MARPOL convention 1973 regulates the chemical cargo in

packaged form. In packed form could mean, carried in containers, cylinders, bottles, barrels,

crates or sealed casing. The MARPOL Annex III regulates the carriage of hazardous substances

in packed form, those hazardous substances are specified in the International Maritime

Dangerous Goods Code (IMDG Code). The IMDG Code must be applied under the SOLAS

Annex II for the identification of hazardous substances. The IMDG Code has also a link to the

MARPOL Annex III, because the code identifies the dangerous goods in packed form and

specifies all forms of packaging. 101 The carriage of harmful substances identified by the IMDG

Code is prohibited, unless regulated otherwise under the IMDG Code, the MARPOL Annex III

and the SOLAS Annex VII. Annex III of the MARPOL regulates the packaging, marking and

labelling, documentation, stowage, quantity limitations of harmful substances and the

enforcement of the regulations. The substances that are identified as harmful substances in

packed form are prescribed in the appendix of Annex III, whereby the IMDG Code is used as

an addition to this appendix. For the application of almost every regulation in Annex III there

is made a reference to the IMDG Code, this means that for further specifications of Annex III

the IMDG Code must be informed .

Furthermore regulation 8 of Annex III prescribes the competences and responsibilities of the

port State authorities of the party State, to enforce the regulations of Annex III and, due to the

references to the IMDG Code, also the enforcement of the relevant IMDG Code regulations.

The IMDG Code divides every hazardous substance in the level of hazard that they can cause

to the human health and the marine life and does so in classes. The hazardous substances are

divided into nine classes.102 These classes are further subdivided into divisions, those divisions

are marked with numbers that indicate, similarly to division of the classes, the level of hazard

that it presents to the human health and marine life. These divisions are indicated on the list of

dangerous goods in part 3, this list presents all goods that are certified as dangerous goods under

the IMDG Code. Part 3 regulates the dangerous goods and the requirements for transport.

100 T. Basu, National Geographic, ‘Hawaii Molasses Spill: Better or Worse Than Oil?’, 17 December 2013,

http://news.nationalgeographic.com 101 Regulation 1 (3) IMDG Code 102 The prescription of the different hazardous substances in all nine classes are located in part 2 of the IMDG

Code, every class has its own chapter. explosives; hazardous gasses; flammable liquids; flammable solids,

flammable solids, substances liable to spontaneous combustion; substances which, in contact with water emit

flammable gases; oxidizing substances and organic peroxides; toxic and infectious substances; radioactive

substances; corrosive substances; miscellaneous dangerous substances and environmentally hazardous substances.

27

Under regulation 8 of Annex III of the MARPOL Convention the port State authorities may

undertake proceedings, when the master and crew of the vessel do not seem to have the

mandatory knowledge of the safety measures and have clear ground for believing so. The port

State authorities may undertake physical inspection on the vessel and when the situation

requires it, detain the vessel for as long as the vessel and its crew do not comply with the

regulations. All the measures taken by the port authority must be in accordance with regulation

5 of the MARPOL Convention.103 Regulation 5 states that all certificates to indicate the

compliance with the MARPOL Convention issued by a party State, must be accepted by other

party States. Port State control of another party State may investigate if a vessel has a certificate,

further inspection may only take place if there are clear grounds for believing that the certificate

does not reflect the state of the vessel and its crew.

1.2.4 Annex IV

Annex IV of the MARPOL Convention regulates the sewage discharge from a vessel in

operating conditions. The latest amendment of this Annex was in 2004 and entered into force

in 2005. Sewage means: the drainage from any toilet, from medical facilities and the washing

spaces, from the living space of animals or from water mixed with drainage.104 Sewage can

have the same effect as chemicals on the environment, the human health and marine life.

Sewage that comes into the water pollutes the water in many ways; first the sewage contains

faeces and food residues that decompose and during that process exhaust toxic gases and

chemicals contaminate the water; second the sewage contains all kinds of soap chemicals and

other household chemicals that are used for the cleaning of compartments or laundry; third the

sewage can contain a lot of bacteria that cause diseases; the fourth main issue is the quantity, if

large quantities of sewage come into the water the volumes of oxygen will go down and marine

life will suffer from this. Annex IV regulates the sewage disposal into the sea by vessels, 105

discharge of sewage into the water is prohibited, unless certain conditions are met.106

1.2.5 Annex V

Annex V regulates the garbage disposal by vessels. Plastic pollution is mainly land based, that

means that the pollution is caused by activities on land and not by garbage thrown into the sea

by vessels, but this does not mean that the garbage thrown in by vessels does not have an effect

103 Regulation 8 (3) of Annex III states that article 5 of the ‘’present convention’’ applies to regulation 8, with

present convention the article refers to the general articles of the MARPOL Convention. 104 Regulation 1 (3) Annex IV of the MARPOL Convention 1973. 105 The scope of application is limited to new vessels, meaning vessels that are built before 1973, and have 400

gross tonnage and more or less than 400 gross tonnage and have a minimum of 15 people on board. For existing

vessels, meaning vessels built after 1973 , the same rules apply but only after five years from entering into force

of the regulation and that is 1 august 2005, from 1 august 2010 all vessels must comply with these regulations. 106 The vessel is navigating continuously and not less than 4 knots, the sewage is treated by a certified sewage

treatment plant or sewage comminuting and disinfecting system, the sewage is discharged more than 3 nautical

miles from land or 12 nautical miles if the sewage cannot be treated by the sewage comminuting or disinfecting

system, the water will not visibly contain any sewage residues or floating solids and all test result are in the vessel’s

International Sewage Pollution Prevention Certificate the vessels is navigating continuously and not less than 4

knots. All vessels that have to comply with this Annex must have a sewage treatment plant, or a sewage

comminuting and disinfecting system, or a sewage holding tank (the sewage holding tank must be emptied in a

port reception facility), built in accordance to the capacity needed for the number of persons on board according

to Regulation 9 of Annex IV of the MARPOL Convention 1973.

28

on the marine life. Every piece of plastic must be banned from the sea, plastics cannot be fully

degraded by water or animals living in the water, so the plastics will accumulate. Plastic is made

from oil products and can be degraded in some sea areas, mostly warm water. The drawback

with the degradation of plastic in water is that during this process toxic substances come into

the water and into the fish. Furthermore the little pieces that stay behind form a carpet on the

seabed. Another problem is the duration of the degradation process, the fish, bacteria and other

marine life have a very difficult time to degrade the plastic and this process takes a very long

time. The plastic and garbage pollution has already done major damage to the sea. Every minute

a garbage truck full of plastics ends up in the sea.107 There are initiatives to remove so called ‘’

plastic soup’’ from the sea, those plastic soups are long stretched plastic masses containing tons

of plastic and garbage.108 Annex V prohibits all vessels to dispose of their plastic garbage in the

sea. The garbage must be disposed of at shore in port reception facilities. Only the food wastes,

animal carcasses, cargo residues and washing water may be disposed of in the sea under certain

conditions. None of these kinds of garbage may be disposed of within 12 nautical miles from

land.

Another convention that regulates the dumping of garbage in the sea is the London dumping

convention 1972.109 The London dumping convention regulates all dumping activities that

concern the dumping on sea that could pollute the environment. Dumping under the London

Dumping Convention means; the disposal of wastes from vessels, aircrafts or other man-made

structure into the sea, this does not include the normal operation of vessels, aircrafts or man-

made structure or other placement of matter without the purpose of mere disposal. This

convention is based on the polluter pays principle and the precautionary approach, as is stated

in article 3.110 The dumping of waste is prohibited, unless the waste is listed in Annex 1. The

wastes in Annex 1 can be dumped if the States have authorized the dumping with a permit.

The incineration of waste at sea is also prohibited and the transport to other States of wastes to

be incinerated or dumped at sea. Measures to enforce this convention must be taken by the

flag State, State where the waste is loaded on board and the State in whose jurisdiction the

waste is dumped into. Since, the 1996 protocol the storage of CO2 in the sea is dumping,

unless the CO2 is stored into the seabed and its subsoil, it contains no other substances than

CO2 and is well regulated and supervised as stated in Annex I. CO2 storage in the seabed is a

new solution to ensure less CO2 comes into the air, the seabed consist out of layers that could

contain gas or oil, these eventually empty spaces can be used to store CO2.

107 The Guardian, G. Wearden, ‘’More plastic than fish in the sea by 2050, says Ellen MacArthur’’, 19 January

2016, https://www.theguardian.com, points out that since the 60’s the plastic production has increase to 311

million tons in 2014, 20 times its original size and will increase to twice as much of that in 2035. Of all that

produced plastic 5 % is recycled, 40% ends up in landfills, about 30% ends up in the sea and the rest of the

plastics is burned. 108 The Ocean Clean Up organisation has created floating barriers to catch all floating plastics coming in its way,

which can collect a large part of the sea’s plastic in the future, www.oceancleanup.com 109 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 currently

has 87 State parties and entered into force 1975, this convention was replaced by the London Protocol in 1996

which entered into force in 2006 with 47 party States. 110 The polluter pays principle means that the person responsible for the pollution will bear the costs of the

pollution and the clean- up activities. The precautionary approach means that the States have to take

precautionary measures when there is a great likelihood that certain activities will cause pollution or threat the

environment, the evidence for this likelihood does not have to prove that the activities will actually cause this

pollution or threat.

29

1.3 Fish Stocks Agreement relating to the conservation and management of straddling fish

stocks and highly migratory fish stocks 1995

Depletion of the fish stock in the sea is another major problem besides pollution. During the

negotiations of the LOSC 1982, the States parties were trying to find a solution to the problem

of overexploitation of the seas. The fishing activities become more extensive every year, as is

shown in the following graphs.

Source: UNEP FAO, IMO, UNDP, IUCN, WorldFish Center, GRIDArendal ‘’Green Economy in a Blue

World’’, 2012, ISBN: 978-82-7701-104-2, www.unep.org/greeneconomy and www.unep.org/ regionalseas

Source: UNEP FAO, IMO, UNDP, IUCN, WorldFish Center, GRIDArendal ‘’Green Economy in a Blue

World’’, 2012, ISBN: 978-82-7701-104-2, www.unep.org/greeneconomy and www.unep.org/ regionalseas

30

Source; UNEP FAO, IMO, UNDP, IUCN, WorldFish Center, GRIDArendal ‘’Green Economy in a Blue

World’’, 2012, ISBN: 978-82-7701-104-2, www.unep.org/greeneconomy and www.unep.org/ regionalseas

The States eventually came up with the EEZ as a solution, the EEZ was established for the

protection of the fish in the seas by the coastal State, with the thought in mind that if the coastal

State would have more rights over a prolonged area of water, they could protect the fish more

extensively.111 In the EEZ the natural resources belong to the coastal State with all

responsibilities that come with that, such as the protection of the fish stock in the EEZ.

Fishermen that used to fish in waters that now is the EEZ of the coastal State could not fish

there anymore, unless there is an agreement between the two States. In reaction to the

establishment of the EEZ, the fishermen went to the high seas to catch fish. The fish in all the

EEZ zones accommodate nearly 85% of all fish in the seas, while 5% of all fish is to be found

in the high seas. If a great number of all fishing vessels fish in the high seas, that 5% will quickly

be less. The phenomenon of the fish as a ‘res nullius’ is one of the reasons that fish stocks are

overexploited.112 Fish in the sea are nobody’s property and therefore the first man that can catch

the fish is the owner of the fish. This phenomenon causes the fishing vessel to want to catch the

most fish in the least amount of time. This problem will be discussed in more depth in paragraph

2.5. Not only the amount of fish that is caught harms the fish stock, also the equipment that is

used and the manner in which the fish is caught harms the fish stock. The equipment that is

used by most of the fishing vessels is designed to catch the highest amount of fish at once.

Fishing vessel can enlarge their amount of fish by designing bigger fishing nets and other

constructions that catch more fish at once. These nets and other fishing gear catch all fish in

their path, this means that a lot of other kinds of fish are also caught, such as turtles and

dolphins. The fish that are not meant to be caught by the fishermen, also called bycatch, is

thrown overboard dead or alive. Trawlers drag their fishing nets over the bottom of the sea, to

catch the sedimentary species and bottom fish. These trawlers cause the same problem of

111 The United States started this fisheries zone with the Presidential proclamation No. 2668, 28 September 1945,

10 Fed. Reg. 12304, 13 Dept. State Bull. 486,Truman Proclamation Regarding Fisheries, Truman created a

statement for the US concerning fisheries conservation zones in 1995, whereby the United States did not claim

any exclusive fisheries zone. Chilli claimed in 1947 an exclusive fisheries zone, with exclusive fishing rights for

the coastal State, on the basis of this Truman proclamation , which did not mirror the intentions of the US. The

US merely wanted to conserve the fish stock through bilateral agreements within those conservation zones, while

Chilli and later also other States claimed exclusive rights in these fishery zones. 112 A res nullius is the Latin term for an object that is nobody’s property and is used as a legal term for an animal

or object that does not have an owner. A res nullius becomes property if the res nullius is claimed as property by

a person.

31

bycatch.113 If the fishing vessel is authorized to catch the bottom fish in the EEZ of another

coastal State, but not the sedimentary species, than the fishing vessel that will catch both with

its trawlers cannot go to the port with both species. The fishing vessel will throw one of the

species overboard. These sedimentary species will not survive these activities and the bottom

of the sea itself will also be destroyed by the trawlers. Besides the amount of fish that is caught

and the design of the fishing gear, the manner in which the fish is caught is also contributing to

the fish stock depletion. There is a huge problem with the illegal fishing activities or

undocumented or unregistered fishing activities.

1.3.1 Geneva Convention on Fishing and Conservation of the Living Resources of the High

Seas 1958

In 1958 the first convention was adopted to protect the fish in the high seas, the Geneva

Convention on Fishing and Conservation of the Living Resources of the High Seas 1958. This

convention was established at the same time as the UNCLOS I in 1958, the 1958 convention

on the continental shelf, 1958 convention on the high seas and 1958 convention on the territorial

sea. This convention tries to protect the fish stock that are overexploited. For a very long time

people thought that the resources in the sea where in-exploitable. In 1958 States where all well

aware of the fact that the fish stock were depleting rapidly. At that time the high seas was the

area after the contiguous zone or territorial sea of the coastal States. To protect the fish stock in

the high seas, the coastal states had the obligation under this convention to create measures

protecting the fish stock just outside their territorial sea or contiguous zone, if the fish stock

where overexploited based of the best scientific research available. These measures could be

contradicted by other States, whereby a conflict resolution would be provided for in article 9

and States could come to an agreement for the measures taken by the coastal State.

1.3.2 Fish Stocks Agreement relating to the conservation and management of straddling fish

stocks and highly migratory fish stocks 1995

In the 1982 convention, UNCLOS III, an update of the Geneva Convention on Fishing and

Conservation of the Living Resources of the High Seas 1958 was adopted into an annex of the

LOSC, 1995 Fish Stocks Agreement relating to the conservation and management of straddling

fish stocks and highly migratory fish stocks that entered into force on 28 July 1994. This

convention gives, besides the rights and duties of the flag State, rights to the coastal States for

fish stock in the high seas just outside the national jurisdiction of the coastal State.114 The

agreement shifts competences from the flag State towards the coastal States and subregional or

regional fisheries management organization or arrangement, to facilitate more supervision and

compliance. The flag State does not always have the means and the will to supervise vessels

flying their flag, such as the flags of convenience. The flag State’s responsibilities are of great

importance and are laid down in article 18 of the agreement, the coastal State and subregional

or regional fisheries management organization or arrangement responsibilities are of additional

nature to ensure better protection of the fish stock. Therefore the agreement wants to shift

responsibilities towards other parties to ensure more compliance with the international rules

and regulations. The subregional or regional fisheries management organization or arrangement

113 Bottom fish are species that live near the bottom of the sea in contrast to sedimentary species that live in the

sediment of the bottom of the sea and therefore are part of the resources of the continental shelf that belong to

the coastal State. 114 Article 7 UN, ‘’Fish Stocks Agreement relating to the conservation and management of straddling fish stocks

and highly migratory fish stocks’’, 24 July 1995, www.unec.org

32

are of great importance to this agreement. States have to make sure when highly migratory fish

or straddling fish stock enter part of their territory or near their territory, that those States

become part of subregional or regional fisheries management organization or arrangement. The

subregional or regional fisheries management organization or arrangement will create

mechanisms for the supervision, enforcement and control of the international rules and

agreements, do research on the fish stock, gather the best scientific research available, create

measures concerning the straddling fish stocks and highly migratory fish stocks and even

mitigate any disagreements within the organisations and between States. 115 If a vessel on the

high seas engages in illegal fishing activities, whereby that region is under supervision of an

subregional or regional fisheries management organization or arrangement, members of that

organisation may board and inspect that vessel to ensure the compliance with the measures

taken by that organisation. The subregional or regional fisheries management organization or

arrangement shall create the necessary measures that prescribes the procedure for enforcement

for States.

1.3.3 Agreement to Promote Compliance with International Conservation and Management

Measures by Fishing Vessels on the High Seas 1993

Besides this convention the Food and Agriculture Organisation (FAO), a special organisation

of the UN, concerned with the protection of the food supply in the world, created an agreement

to protect the fish in the high seas, the Agreement to Promote Compliance with International

Conservation and Management Measures by Fishing Vessels on the High Seas 1993.116 The

FOA does research on all aspects of the food industry, whereof the fishing industry is an

important subject. They publish their data collected by this research and also try to create

agreements and codes to protect the food supply in the world. The FAO created the Agreement

to Promote Compliance with International Conservation and Management Measures by Fishing

Vessels on the High Seas, 1993, and a Code, Code of Conduct for Responsible Fisheries, that

is created in addition to this agreement and refers to the agreement and the LOSC.117 The code

is not legally binding for States and is voluntary, whereas the agreement or the convention is

legally binding for States. Most of the time codes are created in the hope these codes will be

adopted into legally binding document someday, such as the Dangerous Goods Code of the

IMO. The Code of Conduct for Responsible Fisheries is accompanied by the Technical

Guidelines for Responsible Fisheries 1995 and is created to help the States to implement the

Agreement.118 Besides the agreement, the code and the guidelines, the FOA also created

International Plans of Actions (IPOA) to address high priority problems concerning fisheries,

the International Plan of Action for Conservation and Management of Sharks, the International

Plan of Action for reducing incidental catch of seabirds in longline fisheries, the International

Plan of Action for managing fisheries capacity and the International Plan of Action to prevent,

deter and eliminate illegal, unreported and unregulated fishing.

115 Article 8, 9 and 10 UN, ‘’Fish Stocks Agreement relating to the conservation and management of straddling

fish stocks and highly migratory fish stocks’’, 24 July 1995, www.unec.org 116 FAO, ‘’Agreement to Promote Compliance with International Conservation and Management Measures by

Fishing Vessels on the High Seas’’, 24 November 1993, www.fao.org 117 FAO, ‘’Code of Conduct for Responsible Fisheries’’, 31 October 1995, www.fao.org 118 The FOA created 29 Technical Guidelines to assist State with the implementation of the Code of Conduct for

Responsible Fisheries, www.fao.org

33

The agreement is applicable to all fishing vessels, the State party can make an exemption for

vessels under 24 meters in length.119 This agreement mainly gives States the responsibility to

record all fishing vessels, including their measurements and characteristics, fishing on the high

seas and the exchange of all this information with other States and the FAO. The Code of

Conduct for Responsible Fisheries is accompanied by the Technical Guidelines for Responsible

Fisheries 1995 and contains provisions that are more extensive than the Agreement. Because

the Code is voluntarily, the code can be more extensive than the agreement which is mandatory

for the party States. However the code has implemented the agreement and parts of the LOSC,

hereby parts of the code are also mandatory. Under the code, States have the responsibility to

co-operate in the protection and conservation of highly migratory and straddling fish stock

through the establishment of a bilateral, subregional or regional fisheries organization or

arrangement. All States should adopt measures to ensure the conservation of fish stock, the

recovering of depleted stocks and biodiversity of aquatic habitats and ecosystems is conserved.

All States should assess the impact of the fishing activities on the environment. These objectives

should be reached with the best scientific research available, so States can create adequate

measures to ensure the conservation of the fish stock and to supervise the fishing vessels. The

duties of all States, the flag State, port State and coastal State are mentioned in part 8 of the

code. All States must keep record of all authorized fishing vessels, ensure only allowed fishing

activities in their waters, record all these fishing activities in their waters, co-operate to create

systems to monitor, control and supervise and enforce all measures through the subregional or

regional fisheries management organizations or arrangements and that international standards

for employment and labour conditions are applied. The flag State has the obligation to keep

records of all fishing vessels flying its flag, that all these fishing vessels have documentation of

registry and authorization, the fishing gear must be in accordance with international legislation,

to ensure their vessels comply with all safety measures and that the flag State must enforce all

these measures when a violation with a vessel flying its flag occurred. The duty of the port

State is to ensure the co-operation with other States that are in need of assistance. The coastal

State’s duties are not mentioned separately, the duty for all States to ensure that only allowed

fishing activities take place in their waters is the coastal State’s duty. Besides all these duties

all States must take into account the aquatic development under national jurisdiction, this means

that States must create legislation for the development of the aquatic development, should create

plans and strategies for aquatic development, take into account transboundary effects in all

aspects and co-operate with other States. These duties under the Code are of great importance

besides the agreement and the LOSC.

The main goal of the FOA is to create better enforcement and supervision on the fishing vessels

and their activities. The FOA tries to go around the flag State and give more competences to

the coastal State, the port State and subregional organisations or agreements. The coastal state

has the competence to regulate and protect the fish stock moving over national jurisdiction into

the high seas, if this is necessary on basis of scientific research. The port State gets more

competences, they must be able to search and board a vessel that engages in illegal fishing

activities. The port State is very important, because the fishing vessels need to get their fish to

shore. The fish need to be sold and sometimes cleaned and prepared at shore, if the fishing

vessels do not have that equipment on board. The need for fishing vessels to get their fish on

shore is a great opportunity for port States to supervise and control the fishing activities by

supervising vessels and their fish on board, that come to their port to unload their fish. An

example of the difficult position of the coastal States concerning fish stock is the ‘’Fisheries

Jurisdiction Case’’ between Canada and Spain. Canada created special conservation measures

119 Article II of the FAO, ‘’Agreement to Promote Compliance with International Conservation and

Management Measures by Fishing Vessels on the High Seas’’, 24 November 1993, www.fao.org

34

concerning special banks in their EEZ where specific fish live. Canada depends on the fish from

those banks, the difficulty is that those fish later swim out of the EEZ of Canada into the high

seas. Spanish fishing vessels know that those banks create rich fishing grounds and fish at the

border of the Canadian EEZ in the high seas. The Canadian authorities created enforcement

measures applying to those conservation areas and boarded a Spanish fishing vessel fishing on

the high seas near the EEZ of Canada, while the flag State has exclusive jurisdiction of vessels

on the high seas. The ICJ decided that Canada has no right to board a vessel on the high seas

on basis of fisheries conservation measures. The North Atlantic Fishing Organization (NAFO),

a subregional fishing organisation, does not authorise such enforcement measures on the high

seas. Another issue in this case is the jurisdiction of the ICJ, both States are member to the ICJ,

only Canada made a facultative exemption to the jurisdiction of the ICJ and that facultative

exemption concerned exactly this matter. Canada was not a member of the LOSC yet, so

eventually the ICJ did not have jurisdiction and Canada could go on with these activities.

1.4 Other relevant conventions

1.4.1 International Convention on the Control of Harmful Anti-fouling Systems on Ships 2001

Anti-fouling paint is used to protect the hull of a vessel. The vessel needs a smooth hull to get

a good speed, if the hull of the vessel is not smooth the hull would create friction and

resistance in contact with the water. If the hull of the vessel is in the water for a longer period

of time, nautical organisms would settle on the hull and create resistance in the water if the

vessel is sailing. The anti-fouling paint on the hull of the vessel protects the hull from the

nautical organisms that settle on the hull. The anti-fouling paint is actually a biocide that not

only causes the nautical organisms to avoid settling on that hull, but also destroys the nautical

organisms with the chemicals it releases. Anti- fouling paint can do serious harm to the

marine environment and the biodiversity in the sea with the release of these chemicals into the

water. Before the prohibition of anti-fouling paint on vessels, shipowners would use

tributyltin (TBT) in anti-fouling paints, a lead based paint that formed a major hazard to the

sea.

International Convention on the Control of Harmful Anti-fouling Systems on Ships 2001,120

adopted on 5 October 2001 and entered into force on 17 September 2008, is a convention for

the protection of the marine environment from lead as a biocide in anti-fouling paint, tributyltin

(TBT) a hazardous chemical paint with lead. The predecessor of this convention was the non -

binding resolution of the IMO in 1999, 121 that addresses the importance of a total prohibition

of anti- fouling paint with biocides. The EU already had adopted a directive on this subject in

1989, which prohibited the use of anti-fouling paint (TBT) for vessels longer than 25 meters.122

In 1999 the EU created another directive, that vessels for inland navigation were also prohibited

from using the anti-fouling paint, in 2002 the prohibition was extended to all vessels.123 The

120 IMO, ‘’International Convention on the Control of Harmful Anti-fouling Systems on Ships’’, 5 October 2001 121 IMO, Resolution, A.895(21), ’Anti-Fouling Systems used on Ships’’, 25 November 1999 122 EU, Directive 89/398/EC, www.eur-lex.europa.eu 123 EU, Directive 1999/51/EC,’’ elating to restrictions on the marketing and use of certain dangerous substances

and preparations’’,26 May 1999, www.eur-lex.europa.eu and EU, Directive 2002/62/EC, ‘’Restrictions on the

marketing and use of certain dangerous substances and preparations (organostannic compounds)’’9 July 2002,

www.eur-lex.europa.eu

35

convention prohibits the use and application of anti-fouling paint, an organotin compound

which acts as biocides in anti-fouling systems, on a vessel from 1 January 2003 and prohibits

all vessels to have anti-fouling paint on the hull of their vessels and prohibits the use of anti-

fouling paint on the hull of their vessel protected by any coating as a barrier from 1 January

2008.124

1.4.2 Ballast Water Management Convention 2004

Ballast water has a big impact on the biodiversity in the sea. Vessels use ballast water to

stabilize their vessel during their voyage. The ballast tanks that contain the ballast water are

filled with water from the port where the cargo is delivered. When the cargo is put overboard

the vessel is out of balance, the point of gravity and point of buoyancy should create a stable

equilibrium. When the cargo is unloaded the point of gravity and point of buoyancy shift and

could disrupt the balance of the vessel. The ballast water replaces the cargo and stabilizes the

vessel. There are two major problems with ballast water from ballast tanks, the first is the

residue from the ballast tanks and the second problem are the aquatic organisms that live in the

water of the ballast tanks. The normal cargo tanks and holds were used to store ballast water

when the vessel had unloaded its cargo. These tanks or holds could still contain oil residue,

chemical residue or other residues. Now the tanks must be cleaned or the vessel must have

separate ballast tanks. The MARPOL had phasing out regulations for the cleaning of the cargo

tanks that would be filled with ballast water and later the separation of cargo tanks and ballast

tanks. Furthermore Annex I has requirements for the clean ballast tanks, the cargo tanks that

are clean and re-used for the carriage of ballast water, and the segregated ballast tanks, the tanks

permanently used for the carriage of ballast water, for the size, the location and the total of

capacity of the ballast tanks.125

A big problem with ballast water is not merely the cargo residue that can contaminate the sea,

but the species the ballast water carries and discharges into the sea. The ballast water contains

water from the port and aquatic organisms from that port end up in the ballast tank. Some

organisms survive and travel along with the vessel on their voyage to another port, if the vessel

empties its ballast tanks in another port, the aquatic organisms that survived will come into the

water of the other port. This means in practice, that the crabs from a Chinese port and marine

environment could end up in the port of Rotterdam. If these crabs would survive, this mostly

means that the crabs are strong species and could invade the marine environment in and around

the port of Rotterdam. The crabs are used to another environment and could take over the more

quiet and less aggressive organisms living in and near the port of Rotterdam. This situation has

presented itself in multiple areas around the world. Whole marine environments are disrupted

and even extinct because of invasion of nautical organisms released by vessels from their ballast

tanks. The introduction of foreign species in the marine environment is one of the fourth biggest

threats to the marine environment and biodiversity in the sea.126 For example the North Pacific

Sea star, this sea star comes from northern pacific and is invading Southern Australia, the sea

stars are able to multiply in abnormal proportions, are a plague in this part of the sea and eat

shellfish that are needed for the human consumption. Another example are the Toxic Algae, or

124 Annex 1 to the International Convention on the Control of Harmful Anti-fouling Systems on Ships 2001 125 The definitions of clean ballast tank and the segregated ballast tank can be found in article 1 of Annex I. 126 Maria Cecilia Trindade de Castro The United Nations-Nippon Foundation Fellowship Programme 2012

‘’Implementation of Ballast Water Management Convention, 2004; Background Information on the Subject and

Enforcement Procedures’’, Division for Ocean Affairs and the Law of the Sea Official Legal Affairs, UN, New

York, 2012 , www.un.org

36

also called the Red/Brown/Green Tides, they have been introduced in several places through

ballast water, these toxic algae could form massive proportions that look like red tides due to

the large numbers just below the surface of the water. These toxic algae tides destroys all

biodiversity underneath, by draining all oxygen from the water and releasing toxins that harm

the biodiversity. 127

The Marine Environmental Protection Committee (MEPC) of the IMO adopted a resolution on

the International Guidelines for preventing the introduction of unwanted aquatic organisms and

pathogens from vessels ballast water and sediment discharges in 1991.128 A year after, in 1992,

the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro

addressed this issue as a major international concern.129 The IMO created a convention for the

protection of destruction of the sea by ballast water of vessels, the Ballast Water Management

Convention 2004, which did not yet enter into force. The International Convention for the

Control and Management of Ships Ballast Water and Sediments 2004 was adopted by the IMO

after fourteen years of negotiating.130 After the adoption of this convention the MEPC created

14 guidelines adopted in a resolution to implement the ballast water management convention.131

The criteria for entering into force of this convention are not yet reached, the convention will

enter into force twelve months after 30 States that present 35% of the total gross tonnage have

ratified the convention. This convention requires all vessels to have a vessel-specific ballast

water management plan, ballast water record book and international ballast water management

certificate. The requirements for the ballast water management standard have a phase in period,

whereby the vessels at this moment are obliged to exchange ballast water in the mid-ocean and

in the latest stage the vessel should have a ballast water treatment system on board of the vessel.

The guidelines of the Ballast Water Management Convention provide clear recommendations

to implement the convention with extended information and requirements for the port reception

facilities, ballast water management plan, ballast water management systems and the treatment

of ballast water by vessels.

1.4.3 Convention on Biological Diversity 1992

The Convention on Biological Diversity 1992 is created by the UN and is adopted by 150

member States.132 This convention protects all biodiversity, whereof the biodiversity in the sea

is a special aspect. The convention focuses mainly on the obligation of States in their own

territories. The States must protect the biodiversity in their territory by adopting the appropriate

measures. The convention addresses the need for information, scientific research and exchange

of the information and scientific research between States. Besides those main points the

convention addresses the importance of public education on this subject and the proper training

for research activities. In article 22 (2) the convention states that: ‘’Contracting Parties shall

implement this Convention with respect to the marine environment consistently with the rights

and obligations of States under the law of the sea’’. This provision means that all provisions of

the convention on Biological Diversity must be implemented in national law and not contradict

127 http://globallast.imo.org/wp-content/uploads/2015/01/TenMostWanted_English.pdf 128 MEPC, ‘’International Guidelines for preventing the introduction of unwanted aquatic organisms and

pathogens from ships' ballast water and sediment discharges’’ resolution MEPC.50(31), 5 July 1991 129 UN, ‘’Report of the United Nations Conference on Environment and Development’’ (UNCED), Rio, 3-14 June

1992, www.un.org 130 IMO,’’ International Convention for the Control and Management of Ships' Ballast Water and Sediments’’,

13 February 2004 131 MEPC,’’ 14 guidelines for the implementation of the ballast water management convention’’, resolution

MEPC.173(58), October 2008 132 UN,’’ Convention on Biological Diversity’’, 5 June 1992, https://www.cbd.int/doc/legal/cbd-en.pdf

37

the law of the sea. This provision is a link to the biodiversity in the sea. Hence the law of the

sea is international customary law, States are not allowed to contradict the law of the sea which

is codified in the LOSC.

2. Actual and potential difficulties

2.1 Sovereignty of States

The conventions give rights to States and take rights from States, on the one hand to secure the

sovereignty of States and on the other hand to secure and protect the seas and its biodiversity.

If a State violates the rights laid down in one of the conventions, other States may intervene if

those conventions provide rights that undermine the sovereignty of another State. Sovereignty

means that a State may exercise its power over its territory and may do so solely. The difficulty

with conventions is the balance between those rights. Most conventions, especially conventions

that address environmental issues, have problems with the enforcement of the provisions in

those conventions. The biggest problem is that States sometimes have to overrule the

sovereignty of other States to enforce the rules of conventions. States do not like to overrule the

sovereignty of other States mostly because of political reasons. If State A enforces article 118

of the LOSC, because a vessel of State B does not comply with the discharge limits of the

MARPOL, it must bring the charges to the national court of State A. State A has to inform State

B about the violation committed by that vessel. In most cases State B wants to prosecute the

vessel themselves at their own national court, especially when the crew has the nationality of

State B. This results in consultations between the two States about whom is going to institute

proceedings. If States that enforce rules and regulations of international conventions must go

through a lot of difficulties and time consuming negotiations, the incentive to take actions for

States against violations will disappear. The main incentive at this moment for States to take

action, is to protect their land, ports and water under their jurisdiction, as seen in the Prestige

case and the problems concerning the place of refuge. On the high seas where only the flag

State has jurisdiction, there is no incentive for States to protect the high seas, if the proceedings

are that difficult.

In paragraph 1.1 the different maritime zones are explained. The different maritime zones are

important for the determination of the sovereign rights of the States involved. To recapitulate

the rights in the different maritime zones explained in that paragraph, the territorial sea is an

extension of the land and therefore gives full sovereignty to the coastal State.133 The contiguous

zone entitles the coastal State to protect their territory and enforce rules and regulations

applicable to the land, internal waters and territorial sea.134 The EEZ entitles the coastal State

to exploit the natural resources in this maritime zone and regulate and enforce the exploitation

and exploration.135 The continental shelf entitles the coastal State to explore and exploit the

natural resources in the seabed and the subsoil.136 The flag State has full sovereign rights on

133 Article 2 LOSC 1982 134 Article 33 LOSC 1982 135 Article 56 LOSC 1982 136 Article 77 LOSC 1982

38

board of the vessel flying its flag.137 The port State has enforcement rights of international rules,

regulations and standards in its port, such as the violation of the MARPOL convention through

article 218 LOSC. The discussion point is the moment two States can affect their sovereign

rights at the same time. For example the M/V Saiga case whereby a tanker flying the flag of

Saint Vincent and the Grenadines was bunkering oil to fishing vessels in the EEZ of Sierra

Leone and was arrested by the port state control of Guinea.138 Saint Vincent and the Grenadines

submitted the request of prompt release of the vessel and its crew to the court. Saint Vincent

and the Grenadines argued that the vessel was navigating through the EEZ and therefore was

using its freedom of navigation. Guinea argued that the vessel was not navigating through the

EEZ , but bunkering fishing vessels. In this perspective the bunkering of fishing vessels is a

fishing activity and therefore regulated by the coastal State. In addition Guinea argued that there

was no genuine link between the vessel and the flag State. The ITLOS decided that there is not

one article in the LOSC that gives right to other State to refuse recognition of the flag of the

vessel if there is not a genuine link, the genuine link is for the mere purpose to create

responsibility for the flag State to effectively supervise their vessels. The other claim was not

supported by the right arguments and evidence. Therefore the ITLOS decided that the vessel

and its crew had to be released.139 In the Saiga case the flag State had jurisdiction over the

vessel and the coastal State could not interfere with the freedom of navigation in their EEZ.

2.2 Solving international disputes

International disputes on the law of the sea can be resolved through multiple channels. First,

States that have a dispute about the explanation of law or about the applicability of sovereign

rights, will enter into peaceful negotiation to negotiate a solution. If the negotiations are not

fruitful, the States will go to court. The courts that solve disputes relating to the law of the sea

are the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea

(ITLOS) or States can establish a Tribunal of arrange Arbitration. The LOSC gives States the

opportunity to select their preferred court for disputes arising with the LOSC convention. In

part XV the LOSC obligates States to settle disputes by peaceful means.140 If no agreement is

reached between the States concerning the interpretation or application of the LOSC, then the

States can submit the dispute to a court with jurisdiction under the LOSC. 141 States can list

their court of choice and this list will create jurisdiction for that court, whereby article 287

LOSC gives four choices; the ICJ, the ITLOS, an tribunal or arbitration. If State parties have

submitted the same choice of procedure, that court will have jurisdiction for disputes concerning

the LOSC, otherwise State parties will agree on arbitration. If States determine a violation of a

foreign vessel, in some situations that State can institute proceedings at the national court in

accordance with international law. If the flag State does not agree with the proceedings at the

national court of that other State, it can go to an international court, tribunal or arrange

137 Article 94 LOSC 1982 138 ITLOS, ‘’The M/V Saiga case’’, Saint Vincent and the Grenadines v. guinea, case No. 2 , 1999, 3 ITLOS rep.

10, 120 Intl. L. Rep. 143, 38 Intl. Leg. Materials 1323, www.itlos.org 139 In another case, ITLOS, ‘’M/V Virginia G. Case’’, Panama v. Guinea-Bissau, 14 April 2014, www.itlos.org,

the issue of the bunkering vessel was addressed, a vessel bunkering fishing vessels is also a fishing activity

which may be regulated by the coastal State. 140 Article 279 and 280 LOSC 1982 141 Article 286 LOSC 1982

39

arbitration. This process makes it even more complicated for States to act upon violations of

foreign vessels.

2.2.1 International court of Justice

The ICJ is established by the UN charter in 1945 and is an organ of the UN. The ICJ is not

specifically established for cases concerning the law of the sea. The ICJ rules on disputes

between States on basis of international law and gives advisory opinion to other organs of the

UN. Any international disagreement can be brought before the ICJ. Many disputes between

States concern the determination of State territory or sovereign rights that involve the law of

the sea, therefore the ICJ has ruled on many cases concerning the law of the sea. The ICJ has a

lot of experience with law of the sea, such as delimitation cases142 but also other cases

concerning jurisdiction143 or war situations. In the Corfu Channel case the ICJ had to rule on a

very particular situation, whereby war vessels of the United Kingdom (UK) were attacked by

Albanian military forces, while navigating through the Corfu Channel that lies between Albania

and Greece.144 UK protested to Albania with the argument that the war vessels were going

through an international strait and could exercise their right of innocent passage. Albania

claimed that war vessels must give prior notice before Albania would give permission to

navigate through the strait. The UK vessel went back with the prior notice to Albania that they

would fire back if they were attacked. The UK vessels were hit by mines when navigating

through the Corfu Channel the next time and the UK went to the ICJ. At that time Albania was

still part of the Soviet Union. Eventually the ICJ ruled that the Corfu Channel was a strait and

there was no need for prior notice; there was no violation of the sovereign rights by the UK.

2.2.2 International Tribunal for the Law of the Sea

To make the proceedings less difficult and more efficient, the LOSC has its own judicial body

to settle disputes between States concerning the LOSC, the International Tribunal for the Law

of the Sea (ITLOS). The ITLOS is open to all States145, even non-party States of the LOSC and

is open to all proceedings concerning the LOSC and other agreements were the ITLOS has been

given jurisdiction over the settlement of disputes. 146 The decision of the court is final and

binding for the States in that particular case and must be applied by those States.147 Beside the

ITLOS, the LOSC has established the International Seabed Authority (ISA).148 The State Parties

to the LOSC have access to the ISA and its Seabed Disputes Chamber. The Seabed Disputes

142 ICJ, ‘’Delimitation of the Maritime Boundary in the Gulf of Maine Area ‘’, Canada v. United States, 12

October 1984, 246, 294, ICJ, ‘’Continental Shelf Case’’, Libya v. Tunisia, 24 February 1982, ICJ, 18 and

‘’Continental Shelf Case’’, Libya v. Malta, 21 March 1985, 13, www.icj-cij.org 143 ICJ, ‘’Fisheries Jurisdiction Case’’, United Kingdom v. Iceland, 24 July 1974, 3, www.icj-cij.org 144 ICJ, ‘’Corfu Channel case’’, United Kingdom v. Albania, 25 March 1948, 4, www.icj-cij.org 145 Article 20 Statute of the ITLOS, www.itlos.org 146 Article 21 Statute of the ITLOS, www.itlos.org 147 Article 33 Statute of the ITLOS, www.itlos.org 148 Part XI of the LOSC covers the establishment of the ISA. Part XI of the LOSC was adopted on 28 July 1994

and entered into force on 28 July 1996

40

Chamber has jurisdiction over all disputes that concern activities in the Area that do not fall

under the jurisdiction of the Authority, a body of the ISA.149

When a dispute arises between States concerning the LOSC, those States must follow the

procedures laid down in part XV of the LOSC. Before settling the case at the ITLOS, States

must try to settle the dispute with peaceful means, such as negotiations between the States,

mediation or other peaceful means. If those peaceful means do not settle the dispute, the parties

can ask the ITLOS to give a ruling about the case.150 The only problem with part XI of the

LOSC is that the articles only mention the ‘’disputes concerning the interpretation or application

of this convention’’. 151 The court apparently only rules about the interpretation or application of

the LOSC or other agreement. What must a State do, when the warship of that State encounter

a foreign vessel on the high seas that is in violation with international rules and regulations?

This situation does not always need the clarification and interpretation of any article of the

LOSC, neither the explanation of the application of the LOSC. If the warship arrests the foreign

vessel in accordance with article 110 and 111 of the LOSC, that foreign vessel will be brought

to a national court. Only disputes between States about the interpretation or application of

certain articles or provisions of the LOSC or other agreement can be brought before the ITLOS.

The foreign vessel that has been detained, due to violations detected by the State, can however

bring a case before the ITLOS to ask for prompt release of the vessel.152 The Flag State of that

vessel must submit the case to the court on behalf of the vessel. The same rule applies for

provisional measures, the State can ask for provisional measures also on behalf of a vessel.153

All other cases must be brought to the national court or must be solved between States. This

means that the LOSC regulations are as strong as the weakest link, and therefore depends on

the strength of the States to enforce the regulations, to legislate the appropriate national law and

to use its judicial power.

The ITLOS ruled on 23 cases so far. For example the Anglo Norwegian Fisheries case

mentioned in paragraph 1.1.2, the Saiga Case mentioned in paragraph 2.1, cases on the

preservation of marine life, the court also decided on delimitation cases such as the Dispute

Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar154 and

the ITLOS has ruled on a lot of prompt release cases.

2.2.3 Arbitration

If States do not find any common ground for the choice of a court or tribunal, the States can

only settle their disputes through arbitration. Arbitration is a court composed by the States

themselves, they can choose their judges and location. The States can choose from a list of

149 Article 187 LOSC 1982 150 The ITLOS is not a mandatory court, State parties can choose if they want to settle their dispute before the

ITLOS or another tribunal or court, as regulated in article 287 of the LOSC. Most States have given their

preference in accordance with article 287 of the LOSC 1982, this could be the ITLOS, the ICJ, an arbitral

tribunal under Annex VII or a special arbitral tribunal under Annex VIII. 151 Article 279, 280 and 286 of the LOSC 1982 152 Article 292 LOSC 1982 153 Article 290 LOSC 1982 154 ITLOS, ‘’Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar’’,

Bangladesh v. Myanmar, 14 March 2012, case No. 16, www.itlos.org

41

arbiters, the judges that are qualified for a specific subject, and compose their own court. The

States can choose judges from their own country, only one judge must be chosen by both

States to create an uneven amount of judges. The Permanent Court of Arbitration situated in

The Hague used to rule on arbitration cases. The Permanent Court of arbitration was

established in 1899 by the Hague peace Conference and is situated in the Hague and ruled on

a few important cases, now the Permanent Court of Arbitration provides States with help for

arbitration cases. The Permanent Court of Arbitration now fulfils a secretariat role in

arbitration cases, they provide specialised arbiters, act as a register or receive and collect all

documents as a centralized point for both States. An example of an arbitration case is the

notorious delimitation case between Canada and France.155 In this case French islands near

the coast of Canada were the object of discussion, the continental shelf of the islands needed

to be delimitated. Eventually the court had decided a very unique delimitation structure that

was based on their own interpretation of international law by the court. The court got a lot of

criticism on their ruling. An example of an arbitration case ruled by the Permanent Court of

Arbitration is the case of the Muscat Dhows, this old case from 1905 concerned the

elimination of slavery by the UK. Dhows are little vessels belonging to Muscat. The UK was

trying to eliminate all slave trade, but the French Authorities had an opposite opinion. To

protect Muscat Dhows that were transporting slaves for the French Authorities from the

jurisdiction of the Sultan, the French Authorities let the Muscat Dhows fly the French flag, so

the Muscat Authorities could not board and search the vessels. Eventually this turned into a

case whereby the UK represented the Sultan of Muscat and argued that the Sultan had

sovereignty over its nationals. The French Authorities argued that they have sovereignty over

the nationals on board the vessels with the French flag. The court decided that the Muscat

dhows flying a French flag could not be boarded or searched by the Muscat Authorities in the

territorial sea of Muscat.

2.3 Application of the conventions by State parties and non-State parties

States can have a different approach towards international law and conventions. There are two

different approaches, States can be monistic or dualistic. If a State is monistic, the State has

accepted that international law has supremacy over national law. In this case international law

does not have to be implemented in national law, because it already has supremacy. If a State

is dualistic, this State gives supremacy to national law and therefore all international law needs

to be implemented into national law before it can be used as law in that State. For example, the

US is a dualistic State and the Netherlands is a monistic State. If a convention obligates State

parties to create measures or legislation concerning certain subjects, all States must create

measures and legislation according to the convention.

Another important question is: ‘In which cases are States bound by international rules and

conventions’’? In paragraph 1.2 the possibility is discussed that States are bound by the

MARPOL convention through the LOSC convention, in this case article 218 LOSC. There is a

reference in article 218 of the LOSC to the IMO: ‘’(..) in violation of applicable international rules

and standards established through the competent international organization(..)’’. This phrase in

155 Court of Arbitration, ‘’Case Concerning Delimitation of Maritime Areas St. Pierre and Miquelon’’, Canada

v. France, 31 Intl. Leg. Materials 1145, No. 5, September 1992, https://www.jstor.org

42

article 218 (1) of the LOSC is important, because the competent international organisation is

the IMO. The other link imbedded in the LOSC, discussed in paragrapf 1.1.9., is the referral to

the ‘’international rules, regulations, standards and practices’’ not meaning the LOSC or

international customary law. This is the link between the LOSC and the MARPOL convention

as already mentioned; if a party State to the LOSC is not a party to the MARPOL, that State

could be bound to the MARPOL anyway. The LOSC refers to the regulations created by the

‘’competent international organisation’’ and therefore refers to the conventions and regulations

created by the IMO. This means that the regulations created by the IMO in addition to the

subject the LOSC article covers, could be mandatory for all the LOSC party States. Furthermore

the international rules, regulations, standards and practices could refer to the IMO conventions,

resolutions or codes. The only problem with this link is; how far may this go? Can you create a

link for all IMO regulations? And what if the IMO regulations refer to other conventions? Are

the non -party States to the LOSC bound to the regulations of the LOSC due to the customary

law of the LOSC? Are those States thereby bound to the IMO conventions and regulations due

to the customary law codified in the LOSC?

International customary law does not depend on the implementation into national law, if there

is a rule of international customary law all States are bound by it, unless that State is a

persistent objector. The articles of the LOSC are not only codification of customary law, it

also creates customary law. The LOSC has 167 State parties that present the far majority of

the total amount of States.156 The LOSC has 167 party States of the 195 acknowledged

independent States of the world’s total and the 193 State parties to the United nations,

whereof about 2/3 coastal States. 26 States are not a party to the LOSC, such as the United

States. All these States are accepting this convention with its provisions and apply them in

day to day activities, if this many States accept this convention than this can become

international customary law. Most of the States that are not a party to the LOSC have agreed

that most of the articles laid down in the LOSC are codifications of customary law. In the

Vienna Convention on the Law of the Treaties 1969 international customary law is codified as

international binding law for all States.157 Furthermore the statute of the ICJ defines

customary law as: ‘’international custom, as evidence of a general practise accepted as law’’.

158 This sentence is translated in the combination of opinio juris and State practice.159 Opinio

juris means ‘’ a believe in the legally permissible or obligatory nature of the conduct in question, or

of its necessity’’ as Mendelson prescribed it.160 Opinio juris is only applicable if there are more

States that believe in the legality of the rule. To create a rule of international customary law, it

needs to have the opinio juris of the most important States concerning that subject, with the

LOSC this would be the great naval powers, the States who have the most tonnage registered

in their State or the States that have jurisdiction over many miles of sea. State practice means

156 UN Division on Ocean Affairs and the Law of the Sea, ‘’Chronological lists of ratifications of, accessions

and successions to the Convention and the related Agreements as at 02 January 2015’’, 3 May 2016,

http://www.un.org/depts/los/reference_files/chronological_lists_of_ratifications.htm 157 Article 38 of the UN, ‘’Vienna Convention on the Law of the Treaties’’, 23 May 1969, https://treaties.un.org 158 Article 38 (1)(b) Statute of the ICJ, http://www.icj-cij.org 159 International Law Commission, A. De Rocha Ferreira, C. Carvalho, F. G. Marchy, P. B.V. Rigon,

‘’Formation and evidence of customary international law’’, UFRGS Model United Nations Journal, 2013, page

183, http://www.ufrgs.br 160 F. Maes, , ‘’Over MARPOL en het gemeenschapsrecht, noot bij de zaak Peralta, Europees Hof van Justitie,’’,

Tijdschrift voor Milieurecht (T.M.R), page 111-125 , 1995

43

a constant and uniform usage of particular practice or rules that eventually bounds the

practitioner for the future. Only States can create State practice, no organisations or

individuals. The form of the practice is preferably not a statement of any kind, only the

actions or omissions of a State. Furthermore the State must make it public, so more States

know the practice of that State. There is no rule about the duration of the practice, it only has

to be consistent and most of the time this can only be achieved through the passing of time.161

Besides opinio juris and State practice, a convention can also establish customary

international law, due to the amount of States that agree to the rule, the States that act in

accordance with this rule and States that do not act to prevent the enforcement of this rule.

The United States also acknowledges the formation of customary international law by the

LOSC and has been a persistent objector to several articles of the LOSC. It is necessary for a

non-party State to be a persistent objector to many articles of the LOSC. The reason for this is

that 164 States are going to acknowledge these articles in the convention and this could result

in customary law. If a State does not want to be subjected to customary law this State must

persistently object to the customary rule that they do not want to be subjected to. In the Anglo

Norwegian Fisheries case the court ruled that several conditions had to be met for the rule of

customary law to apply.

- it must have a fundamentally norm -creating character, that can be regarded as the basis

of the general rule of law;

- it must enjoy a widespread and representative participation in the treaty, including that

of States whose interests are a specially affected;

- it must enjoy extensive and general uniformity of State practice evidencing a general

recognition that a rule of law or legal obligation is involved;

- the passage of time, though on certain occasions it may be a short one.162

The judgement of the ICJ in this case recapitulates all necessary elements mentioned in this

paragraph to create international customary law.

The next question would be if the LOSC creates international customary law. E. Egede stated

in his book concerning the creation of customary law by the LOSC; ‘’In view of the widespread

acceptance of the LOSC and the 1994 agreement, it is perhaps safe to conclude that there is sufficient

state practice to transform the treaty provisions into customary international law binding on both state

parties and non-state parties.’’163 If some articles of the LOSC are formed into customary

international law, those articles will be applicable in every State, unless the State persistently

objects to that specific article or rule that could bind the State through customary international

law. This means that article 218 of the LOSC could be a rule of customary international law. If

article 218 of the LOSC is formed into customary international law, this article could not only

bind the non-party States to article 218 of the LOSC but also the MARPOL convention and if

that would be the case even bind the States to other IMO conventions applicable through the

articles of the LOSC. The same reasoning is applied to the common heritage of mankind used

for the protection of the Area in the LOSC, the 1994 Agreement, in the book of E. Egede he

161 International Law Commission , A. De Rocha Ferreira, C. Carvalho, F. G. Marchy, P. B.V. Rigon,

‘’Formation and evidence of customary international law’’, UFRGS Model United Nations Journal, 2013, page

190, http://www.ufrgs.br 162 E. Egede, ‘’Africa and the Deep Seabed Regime: Politics and International Law of the Common Heritage of

Mankind’’, Springer, 2015, page 68 163 E. Egede, ‘’Africa and the Deep Seabed Regime: Politics and International Law of the Common Heritage of

Mankind’’, Springer, 2015, page 69

44

stated that; ‘’The widespread ratification of the LOSC and the 1994 Agreement, evinces the necessary

state practice and the opinion JURIS are binding on all States (both State parties and non-State parties)

and consequently no state, not even non- State parties may unilaterally embark on mining activities in

the Area. In addition, it is posited that all States (both State parties and non-State parties)are entitled

to participate in the enjoyment of the benefits of the activities in the Area based on customary

international law. Hence, it is contended that even African non-State parties are bound by the obligation

set out in part XI of the 1994 agreement (except such obligations related to the institutional framework)’’

The only difference with article 218 and the common heritage of mankind is that the common

heritage of mankind is a principle that governs a specific subject, article 218 is not a principle

but a practical rule to enforce the other articles of the LOSC. Because of the wide discussion

on part XI during the negotiations of the UNCLOS III between States and the package deal

treatment of the LOSC for ratification, many developed States did not want part XI in the

LOSC, while developing States did want part XI. The discussion about part XI to be customary

international law is not yet clarified in international law.

Non-party States to the LOSC can be bound by the LOSC through customary law, can vessels

flying the flag of a non-party States now also be bound by the MARPOL? When a vessel flying

the flag of a non-party State to the LOSC is navigating in the territory of the coastal state, the

coastal State can detain the vessel if this vessel is violating the MARPOL. States that apply the

LOSC and the MARPOL, because that State is a member to those conventions, may not apply

those conventions in a discriminatory manner. If the coastal State applies the conventions to the

vessels flying a flag of a State that is a member to those conventions and not apply those

conventions to vessels flying the flag of a State that is not member to those conventions, this

would be discriminatory. If States do not apply those conventions to all vessels coming in their

territory, this will be discrimination. Discrimination is prohibited under the LOSC.164

That non-party States are bound by the LOSC or the MARPOL is against two principles; "res

inter alios acta" and "pacta tertiis nec nocent nec prosunt". Res inter alios acta means that a

contract between parties cannot create rights and obligations for non-parties. Pacta tertiis nec

nocent nec prosunt means in principle the same, a treaty between parties cannot create rights

and obligations for third parties.165 Despite these principles of international law, customary

international law seems to prevail over these principles, mainly because customary law reflects

the general view of all States.

In a different situation the question must be asked, if the LOSC and the MARPOL convention

are conflicting each other, which one prevails? The LOSC states that the LOSC prevails in all

situations and must be applied above other conventions.166 However the principle of "lex

specialis derogat lege generali’’ means that the specific treaty prevails over general treaties.167

The MARPOL convention is a very specific treaty and an elaboration of the LOSC.168

Furthermore the principle "lex posterior derogat lege priori" can be applied to this situation,

which has the opposite effect of the ‘’lex specialis derogate lege generali’’. Lex posterior

derogat lege priori means that the oldest prevails over the younger conventions or agreements.

164 Article 25, 52, 141 and 227 LOSC 1982 165 F. Maes, , ‘’Over MARPOL en het gemeenschapsrecht, noot bij de zaak Peralta, Europees Hof van Justitie,’’,

Tijdschrift voor Milieurecht (T.M.R), page 111-125 , 1995 166 Article 38 (9) LOSC 167 This general principle can be applied on articles of national, international or on treaties. 168 F. Maes, , ‘’Over MARPOL en het gemeenschapsrecht, noot bij de zaak Peralta, Europees Hof van Justitie,’’,

Tijdschrift voor Milieurecht (T.M.R), page 111-125 , 1995

45

Than the LOSC would prevail over the MARPOL convention. In general the LOSC will prevail

over the IMO convention, hence the IMO conventions are an elaboration of the LOSC. In many

cases the general rules of the LOSC will not contradict the specific rules of the IMO

conventions. When such as situation would occur, all circumstances must be taken into account

and eventually the LOSC article would probably contain customary law whereby the LOSC

would prevail.

2.4 Enforcement of international law by States.

All States that have to apply the conventions in day to day operations must make sure they

enforce and apply all rules and regulations in their territory. Port States and coastal States have

port State control that supervises the day to day operations.169 The flag State must make sure

all documents and certificates are in order.170 The vessel must obtain a certificate from the

certification organisation to certify vessels and make sure the documents are in order, such as

Bureau Veritas or Lloyds register. These are international organisations whereby every vessel

can choose where to register and receive a certificate. Every vessel needs to have a certificate

for seaworthiness and all other specifications mentioned in the LOSC. Aside the need for proper

documentation and regular checks of compliance with the regulations, the certificate is needed

for obtaining an insurance, without a certificate obtaining an insurance is almost impossible.

The coastal State, Port State and Flag State are also responsible for the activities of vessels on

the high seas. If a vessel discharges substances into the high seas, the flag State must intervene

because the flag State has jurisdiction over the vessel on the high seas. The coastal State is

responsible for foreign vessels entering their territorial waters, EEZ or internal waters. The port

State is responsible for the foreign vessels and its activities on the high seas when the vessel

enters a port of the port State. Responsibility does not mean the jurisdiction of a foreign vessel,

even if the foreign vessel is entering the territorial sea or the port of another State, the flag State

has jurisdiction over the vessel. A major problem concerning illegal activities of vessels on the

high seas is that, the flag State of a vessel often does not intervene, the port State cannot

investigate properly and the coastal State does not have the jurisdiction. The flag States are

most of the time flags of convenience, so the flag State does not control and supervise their

vessels properly and vessels can abuse these circumstances on the high seas. The port State can

investigate a vessel entering their port, but if the illegal activities took place on the high seas,

the port State has not always the means to investigate on the place of the illegal activities on

the high seas. The port State must investigate with the means they have, which is the vessel.

The port State will investigate the activities of the vessel by investigating the documents,

vessels installations and vessels reports. The coastal State has the same problems as the port

State, when the illegal activities take place on the high seas and they mostly do not have

jurisdiction.

This problem will be explained with the following example. A vessel with the flag of State A

has dumped radioactive chemicals into the sea. The place of the dumping was outside the EEZ

of any State, this means that the freedoms of the high seas are at force. The coastal State also

169 Article 218 and 219 LOSC 1982 170 Article 94 and 217 LOSC 1982

46

has enforcement power, established by the previous mentioned International Convention

Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties 1969 to intervene

in case of an incident on the high seas or article 221 LOSC, whereby the coastal State may take

action if their territory will be affected by an incident that could cause major pollution to the

coastline of the coastal State. if it was a commercial vessel that encountered the vessel with the

flag of State A, this vessel could not act against this vessel under international law. Only

warships are authorized to board and search a vessel on the high seas in accordance with

international law. In article 110 LOSC a number of rights are given to warships of States, to

board and search a foreign vessel. Article 110 LOSC states that the warship may board a foreign

vessel on the high seas when it is engaged in act of piracy, slave trade, unauthorized

broadcasting or if the vessel is stateless, with two nationalities, or refusing to show its flag. If

the crew of that commercial vessel would try to board that vessel with flag A, the commercial

vessel would act against international law and could be suspected of piracy. The previous

mentioned situation has occurred once with the Greenpeace vessel, the Arctic Sunrise.171 In the

case of the Arctic Sunrise Russia boarded, investigated, inspected and detained the Artic

Sunrise in the EEZ of Russian Republic. The Arctic Sunrise presumably was interfering with

an offshore oil platform of a Russian company situated in the EEZ of Russia. The organisation

Greenpeace, the owner of the vessel Arctic Sunrise, was protesting against the arctic oil drillings

by putting up a banner on the Russian oil platform. While the vessel was navigating through

the EEZ of Russia, the Russian authorities seized the vessel and arrested the crew. The vessel

had the Dutch flag and so the Dutch Authorities ordered the release of the vessel and its crew. 172 The Russian republic stated that the attempt to place the banner on the oil platform was an

act of piracy under the LOSC, but the ITLOS decided that this was not an act of piracy and the

crew and the vessel must be released with compensation.

Another example is, when a warship with the flag of State A encounters a foreign vessel with

the flag of State B during illegal fishing activities of that foreign vessel on the high seas, what

can that warship do? If the flag State asks the warship to intervene on behalf of the flag State,

the warship may act in accordance with the authorisation given by the flag State. If there is a

bilateral or multilateral agreement that gives the right to the warship to board and/or search

and/or prosecute the vessel than the warship may act in accordance with these agreements. If

there is not any agreement or request of the flag State, the warship can only try to obtain

evidence. The warship can act without authorization of the flag State in case the region is

supervised and regulated by an subregional or regional fisheries management organizations or

arrangements, whereby this subregional or regional fisheries management organizations or

arrangements created measures and regulations that specifies the enforcement of applicable law

concerning illegal fishing activities. These subregional or regional fisheries management

organizations or arrangements can create enforcement measure that would allow warships with

the flag of a State that participates in these the subregional or regional fisheries management

organizations or arrangements to board and search the vessel in accordance with the Fish Stocks

Agreement relating to the conservation and management of straddling fish stocks and highly migratory

fish stocks 1995.

171 ITLOS, ‘’Artic Sunrise Request for the prescription of provisional measures’’, Russian Federation vs The

Kingdom of the Netherlands, 22 November 2013, www.ITLOS.org 172 ITLOS, ‘’Artic Sunrise Request for the prescription of provisional measures’’, Russian Federation vs The

Kingdom of the Netherlands, 22 November 2013, www.ITLOS .org

47

The last example will be the illegal discharge in the high seas. If there is a vessel of State A

discharging a large amount of oil into the seas that is larger than the amount permissible by

the MARPOL Annex I, what can a warship do? In article 110 of the LOSC the illegal

discharge by any vessel on the high seas is not mentioned as a right for a warship to board and

search a vessel. The only thing the warship can do in this situation is inform the nearest ports,

coastal States and inform the flag State of the situation and the illegal discharge. If the vessel

arrives in the nearest port, the port State control of the port State can take action under article

218 LOSC. In accordance with article 218 LOSC, when a foreign vessel is voluntarily in a

port, the port State may investigate a vessel or institute proceedings if the evidence proves any

discharge that took place outside the territorial sea, contiguous zone or EEZ and thereby took

place on the high seas. Port State control can institute proceedings against the crew or

determine a bond. National law will apply to the proceedings and measures that will be taken

and the national law must be in accordance with international law. The coastal State may

intervene if the discharge could harm the coast of the coastal State. The coastal State

determines an illegal discharge prohibited by the MARPOL convention, the coastal State can

proceed with criminal charges against the foreign vessel on basis of article 221 LOSC.

Article 221 LOSC gives the right to the coastal State to protect their territory of fish from

pollution caused by maritime casualties outside their territorial sea. Unfortunately this article

does not cover the deliberate pollution from vessels, such as illegal discharges. Maritime

casualties means the incident with a vessel, such as a collision, stranding or other accident

with or on board of the vessel.

Contrary to the powerlessness of States concerning illegal activities of foreign vessels on the

high seas, the combat of illegal activities of foreign vessels in the territorial sea, contiguous

zone or EEZ is much easier. The coastal State has sovereign rights and jurisdiction in these

zones. At this moment States are still very dependent on the flag States. First the flag State must

make sure the vessels flying their flag are complying with all the duties and international rules

and regulations under the LOSC, IMO conventions and other conventions. Secondly the flag

State must take action when vessels flying their flag do not comply with all these international

rules and regulations. Such as in the situation that another State is informing that State

concerning the illegal fishing activities or discharges committed by that vessel. If the flag State

does not institute proceedings, the other States cannot institute proceedings without the consent

of the flag State. The IMO was also concerned about this problem and created audit schemes to

investigate if member States have implemented the conventions. At first these audit schemes

were done at the free will of the States, later the IMO made the audit schemes mandatory.173

2.5 The tragedy of the commons

In paragraph 1.3.1 the ‘’res nullius’’ has been discussed briefly. A res nullius is a good or an

animal that belongs to nobody and is nobody’s property. If a person brings its garbage outside

their home to make sure the garbage man will pick up their garbage; the garbage is res nullius,

173 The audit schemes of the IMO are not mandatory for the most conventions. The IMO made the audit schemes

mandatory for a few conventions after 2014 with an amendment to the following conventions; SOLAS, 1974,

‘’the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers’’, 1978,

and ‘’the Seafarers' Training, Certification and Watchkeeping’’ (STCW); the Protocol of 1988 relating to the

‘’International Convention on Load Lines’’, 1966 (1988 Load Lines Protocol)

48

the owner has waived its property right. If someone encounters a wild animal, that animal would

be a res nullius; anyone can grab the animal and take it home. The phrase ‘’finders keepers’’

applies to the res nullius. This phenomenon of the res nullius also applies to fish and the

biodiversity in the sea.174 Fish in the sea is nobody’s property and therefore the first man that

can catch the fish is the owner of the fish. This phenomenon causes the fishing vessel to want

to catch the most fish in the least amount of time. With the world population growing and the

biodiversity in the sea diminishing, the race to the bottom begins. Everybody want to protects

its own interest and therefore want to catch the fish that is left.

Garrett Hardin wrote an article on the same subject, the tragedy of the commons, in 1968.175

Garrett Hardin analysed the commons and determined that if a good or animal would belong to

everybody, people will only act out of self-interest and take as many as they can. To let everyone

be free to take from the commons would lead to destruction. The article of Garrett Hardin is

used as an motivation to establish the EEZ during the UNCLOS III negotiations. The fish in the

EEZ are now the property of the coastal State and therefore protected by the coastal State.176

Now the fish and the biodiversity in the EEZ have an owner, is it not time to create an owner

for the biodiversity in the high seas?

There is a great difference between a res nullius and a common good, a res nullius belongs to

nobody and a common good belongs to everybody. A common good has an owner, the

community as a whole. If there is an owner of a good or animal this owner may protect its

property. It would be much better for the biodiversity in the high seas if that biodiversity is not

labelled as res nullius but as a common good. If the biodiversity in the high seas has an owner,

the community as a whole, than the biodiversity in the high seas may be protected by that owner

or a representative of that owner. This representative could be an organisation that would stand

up for the community as a whole. The biodiversity in the high seas would first be relabelled as

a common good before this organisation could protect its interests and preserve the common

good for future generations.

3. What could be a legal structure for the high seas

3.1 Introduction

There are many conventions that protect the biodiversity in the sea from pollution,

overfishing, introduction of foreign species and dumping. Many of these conventions give the

States the responsibility to create measures to comply with these conventions and some even

oblige States to create enforcement measures such as the Fish Stocks Agreement relating to

the conservation and management of straddling fish stocks and highly migratory fish stocks

1995. The LOSC and the MARPOL have enforcement measures of their own and States can

rely on the enforcement rights provided for in these conventions. With this in mind it would

be much easier to create uniform enforcement measures that would apply in the high seas to

174 A res nullius is the Latin term for an object that is nobody’s property and is used as a legal term for an animal

or object that does not have an owner. A res nullius becomes property if the res nullius is claimed as property by

a person. 175 G. Hardin, ‘’The tragedy of the commons’’, 1968, 162 Science 1243,

http://science.sciencemag.org/content/162/3859/1243 176L.B. Sohn, J.E. Noyes, E. Franckx, K.G. Juras, ‘’Cases and materials on the law of the sea’’, 2014, second

edition, Brill Nijhof, Leiden, p. 54

49

protect its biodiversity. Furthermore the biodiversity in the high seas is currently labelled as a

‘’res nullius’’, if this would change the protection of the biodiversity would be easier and the

mind-set of States would also shift. If the biodiversity in the high seas would be labelled as a

common resource, whereby all States have the responsibility to protect this common resource

for future generations. Besides the idea of a common resource, the necessity to protect the

biodiversity in the high seas is extremely high and if States would wait with the protection of

the biodiversity in the high seas, there is no biodiversity left for the future generations. The

world population already demands a very large amount of fish for nutrition every year, the

future generation would ask for a lot more. The UN calculated the world population in 2100

and this would almost be twice as much as in 2015.177 If all States would make sure all

unnecessary destructive activities would stop, then perhaps the future generation will have

enough resources to provide the world population with food. It is important to create uniform

measures, whereby all States have rights to enforce those measures and the incentive to

enforce those measures. With these problems in mind, what could be a better legal structure to

ensure the protection of the biodiversity in the high seas? The high seas is covered by the

freedoms of article 87 LOSC with restrictions in respect to those freedoms. The main problem

is that these restrictions do not cover most of the problems concerning the protection of the

biodiversity in the high seas. Secondly when a vessel violates these restrictions it is almost

impossible for other States to intervene. The last main problem is that when States have the

right to intervene it is almost impossible to prove that illegal activities have taken place on the

high seas. In this paragraph a few solutions to this problem will be investigated, first the

possibility of a new convention to regulate and protect the biodiversity in the high seas,

secondly the possibility of an international organisation that regulates the high seas to protect

its biodiversity and at last the specific provisions that could be used in order to simplify the

enforcement procedure for States.

3.2 A new convention to protect the biodiversity on the high seas

To create a solution for the first problem, that restrictions of the freedoms on the high seas do

not cover most of the problems concerning the protection of the biodiversity in the high seas,

States could create a new convention with provisions on the subject of the protection and

conservation of the biodiversity on the high seas. These provisions would clearly state the

rights and duties of the coastal State and the port State in case of illegal activities of foreign

vessels. Now that it is clear that the flag State is most of the time not able to enforce the rules

set out in international law or is not even a member to the main conventions, the port State,

coastal State and warships on the high seas should get more competences to act instead of the

flag State. The Fish Stocks Agreement relating to the conservation and management of

straddling fish stocks and highly migratory fish stocks 1995 and the Agreement of the FAO as

already mentioned in paragraph 1.3 has pointed out this situation and tries to give the coastal

State and the subregional organisations and agreements more competences to ensure the

177 UN Department of Economic and Social Affairs, ‘’World population projected to reach 9.7 billion by 2050’’,

29 July 2015, New York, http://www.un.org/en/development/desa/news/population/2015-report.html

50

protection of the fish stock in the seas.178 This new convention on the protection of the

biodiversity in the high seas, is first especially for the biodiversity as a whole, secondly for

activities on the high seas and third especially for the effective enforcement of international

rules and regulations.

The difficulty with this convention is that the provisions would mostly not contain customary

law, in contrary to the LOSC. This convention would address issues States would mostly

avoid to address. The fish in the high seas is very important to most States, especially after the

EEZ was created by the UNCLOS III. The freedom of navigation is also a very important

topic that is protected by a lot of States, such as the US and the UK, two big naval forces.

The freedom of navigation would not be restricted by this convention, only in cases whereby

the vessel is in violation of the provisions. These restrictions for vessels in violation could be

a concern for States in big favour of the freedom of navigation. The freedom of navigation

could only be restricted for vessels in violation of international rules and standard concerning

the other goal of this convention, the prevention of illegal activities by vessels and other

sources that could damage the marine environment. The freedom of navigation does not have

to be restricted if vessels do not violate any provisions of this convention.

The next issue is the functional aspect of this convention. The main goal of this convention is

to simplify and improve the enforcement of rules and regulation. This goal must be held in

mind with all provisions in this convention. The provisions of this convention could refer to

already existing conventions such as the IMO conventions or the conventions and agreements

on fish stock conservation. This convention could be applied as an umbrella convention, in

the same manner as the LOSC. The first part of the convention would have definitions of

every important word. The second part would contain all factors that could harm the

biodiversity in the high seas, such as fishing activities, pollution caused by vessel activities

and accidents, ballast water from vessels, pollution and harmful activities from platforms,

installations, cables and pipelines or pollution or damage caused by scientific experiments

executed in the high seas. The third part would contain the provisions, whereby all harmful

activities will be made illegal with references to other conventions and guidelines that already

deals with such issues, for example the conventions discussed in chapter 1. The fourth part

will have provisions that would contain clear rules about the enforcement and supervision on

the previous part. The fifth and last part would contain civil and criminal punishment, such as

fines, seizure or imprisonment.

This possible new convention could be created by the UN, since they have created many

important conventions and already decided upon a resolution to create a new international

legally-binding instrument for the conservation and sustainable use of marine biological

diversity of areas beyond national jurisdiction. The UN has 193 party States and impressing

experience in developing conventions. The UN has a department for Ocean Affairs and the

Law of the Sea, moreover the UN created the LOSC which now counts 167 party States. ’The

IMO as an international organisation to protect the seas from pollution and other destructive

activities of vessels, would be another qualified organisation to create such a convention. The

IMO is an institution of the United Nations, that is concerned with creation of conventions

and guidelines for the safety of vessels, the prevention of pollution and protection of the

178 UN, ‘’Fish Stocks Agreement relating to the conservation and management of straddling fish stocks and

highly migratory fish stocks’’, 24 July 1995, www.unec.org

51

marine environment from shipping activities. Besides the experience of the IMO with the

creation of other important conventions and guidelines, the new convention on the protection

of the biodiversity in the high seas could automatically apply through the LOSC, as discussed

in paragraph 4.3. One example is article 218 LOSC, whereby the rules created by the

‘’competent international organisation’’ apply. Many articles of the LOSC mention the

international rules, regulations, standards and practices apply, such as article 220 LOSC.

Through these provisions the new convention could be applicable.

The UN is aware of the problems relating to the biodiversity in the high seas. The general

assembly of the UN created a resolution in 2015 to address this problem and establish an Ad

Hoc Open-ended Informal Working Group to create a new convention to protect the

biodiversity in the high seas.179 The title of the resolution is; ‘’ Development of an international

legally-binding instrument under the United Nations Convention on the Law of the Sea on the

conservation and sustainable use of marine biological diversity of areas beyond national

jurisdiction’’. the UN General Assembly decides to create an international legal binding

document under the LOSC that would protect the biodiversity in the high seas. A preparatory

committee is responsible for the draft text of the convention and this preparatory committee

should consider all relevant information and recommendations of the Ad Hoc Open-ended

Informal Working Group. The Ad Hoc Open-ended Informal Working Group was created to

study issues relating to the conservation and sustainable use of marine biological diversity

beyond areas of national jurisdiction The Ad Hoc Open-ended Working Group was

established by another resolution, resolution 66/231 of December 24 2011, and resolution

67/78 of December 11 2012 resolution to determine the scope, parameters and feasibility of

an international instrument. The Ad Hoc Open-ended Informal Working Group

recommended to the preparatory committee that an international binding instrument was

feasible, because there is a need for a global and coherent approach instead of a more

fragmented approach that is the current status of many conventions.180 They underlined the

idea of an additional agreement to the LOSC, whereby the agreement would create an

addition to the LOSC articles and create a stronger protection for the biodiversity in the high

seas. Other delegations questioned whether or not the convention should be an addition to the

LOSC, or the Convention on Biological Diversity, or the Nagoya Protocol on Access to

Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their

Utilization to the Convention on Biological Diversity, because all States should be able to be

a party to this convention. Furthermore there is a need for an uniform legal system to avoid

that a few States or organisations would take responsibility for the biodiversity in the high

seas. Besides the feasibility of the convention, the problems relating to the implementation

and enforcement were addressed, in particular the question if it would be better to strengthen

already existing conventions concerning the implementation and enforcement instead of

creating another conventions with the same problems. The Ad Hoc Open-ended Informal

Working Group preferred to focus on existing instruments and better implementation of these

instruments and should fill in the gaps where no instrument exists. Moreover the Ad Hoc

Open-ended Informal Working Group pointed out that there is no clarity in the rights and

179 Resolution, UN General Assembly, UNGA 99/292, ‘’Oceans and the law of the sea’’, 11 May 2015,

A/69/L.65, www.un.org 180 UN, Ad Hoc Open-ended Informal Working Group recommendations, ‘’Issues relating to the conservation

and sustainable use of marine biological diversity beyond areas of national jurisdiction’’, 13 February 2015

A/69/780 , www.un.org

52

duties of States in this new instrument. A very important issue concerning the creation of an

uniform convention that would build on already existing conventions relating to the

preservation of the biodiversity in the high seas, as already mentioned above in the beginning

of this paragraph with the idea of a possible new convention referring to other important

conventions. The scope of the convention should be all biodiversity in the high seas, including

biodiversity that still needs to be discovered, but some delegations want to exclude fish, now

that fish is already regulated by the Fish Stocks Agreement relating to the conservation and

management of straddling fish stocks and highly migratory fish stocks 1995. In addition to the

biodiversity not yet discovered and the biodiversity and the habitat as a whole, scientific

research should be a key element of the convention. A second very important issue that was

addressed is the establishment of a supervising body to help States implement the new

convention, whereby this body could be a new established one or an already existing one such

as ISA. All these recommendations and opinions are used by the preparatory committee

during the draft of the convention text. When the draft text is finished by the preparatory

committee, the States and relevant organisations can comment in an intergovernmental

conference. The sessions of the preparatory committee will take place from 28 March to 8

April in 2016 and from 29 August to 12 September in 2016, so today there is no other

information available concerning the new convention to protect the biodiversity beyond State

territory.

3.2 Separate organisation for the biodiversity in the high seas.

For the second problem, that when a vessel violates the restrictions of the freedoms on the

high seas, it is almost impossible for other States to intervene, an international organisation

could be a solution. If the States themselves would not have to intervene because an

organisation intervenes for the States instead, than the problem is solved. Whether an

organisation could intervene depends on the competences State parties would give to such an

organisation. States are mostly very reluctant to give away rights or freedoms that they would

otherwise enjoy. The organisation would have one major responsibility, the protection of the

biodiversity in the high seas. Before the organisation would get this responsibility the

biodiversity in the high seas must be labelled as a common good instead of a ‘res nullius’,

whereby the organisation would protect the common good for future generations.

An example of an organisation that has been successful is the International Seabed Authority

(ISA). This organisation as explained in paragraph 3.1 protects the Area, the seabed and its

subsoil after the continental shelf of the coastal States. The Area is governed by the principle

of common heritage of mankind in the LOSC, which means that the Area belongs to the

international community as a whole and not to States. The ISA protects the Area mainly by

controlling and regulating the resources in the Area. The ISA was established in the 1982

UNCLOS III in part XI. The ISA is divided into several organs, the leading department is the

Secretariat, other organs are the Assembly, the Counsel, the Financial Committee and the

Legal and Technical Commission. The ISA regulates the applications of States and companies

to explore or exploit the Area through permits. The permits at this moment are for exploring

only, in a later stadium the ISA could give exploitation permits. The big difference between

the waters superdjacint to the seabed and the Area, is that States already overexploit the

waters superdjacint to the seabed, while the Area was not exploited at all due to lack of

advanced technology in that time. The high seas can still be governed by an international

53

organisation if states recognize the necessity of this organisation and the protection of the

biodiversity in the high seas. An important factor for States would be the competences and

power this organisation would get that could undermine the sovereignty of the States. If the

organisation would regulate the high seas similar to a sovereign right, States would certainly

not agree. The organisation should be in between two extremes, it may not be too powerful to

undermine the sovereignty of States while is must be powerful enough to regulate and enforce

illegal activities on the high seas.

This organisation could be established as an addition to the LOSC. The organisation will be

managing the resources in the high seas in the same manner the ISA coordinates and controls

the resources in the Area, only in a more in-depth way. The freedoms of the high seas should

be in force, only the organisation would keep strict control and supervision over execution of

these freedoms. The freedoms of the high seas are already restricted by several conventions

and provisions. For example the freedom of navigation applies but is limited in safety zones

around platforms and installations or by the war zone. 181 The organization would restrict

these freedoms through own regulations or through a new convention. These regulations

would prohibit certain activities. For example ballast water from ballast tanks, treated or not,

may not be filled or dumped in the high seas, ballast water from ballast tanks should be filled

and dumped in port reception facilities. The organisation should get the competence to create

fishing quotas in cooperation with States and subregional or regional fisheries organization or

arrangement and divide this under the States and subregional or regional fisheries

organization or arrangement if States would not want to catch any fish, other States can buy

the part of fish from that State comparable to the CO2 emission trade.182 These quotas would

carefully be calculated based on the best scientific research available. The quotas would first

be in the crisis position, this means that every stock can be caught up to the allowable catch

whereby the stock can develop in a quick flow, this means that the quota would be very low

and can only go up when the fish stock is growing again. When the situation is stable, the

quotas will be adjusted according to the situation and circumstances. The quotas will be

given to the States or subregional or regional fisheries organization or arrangement and the

States would have to divide the quota to national fishing vessels. Furthermore the fishing

vessels can only fish on the high seas with the right equipment certified by the organisation. If

a vessel pollutes the seas, the organisation can take action against this vessel. These actions

would not comprise institute proceedings, but deny access to the high seas for a period of

time. The flag State can still prosecute the vessel for its violations, the organisation will not

intervene with the flag State jurisdiction. If the patrols of the organisation would encounter a

vessel during illegal activities, these patrols can provide evidence for the organisation. When

a vessel violates international rules and standards on the high seas, the flag State will be

informed immediately, so the flag State can institute proceedings. The flag State will receive a

fine for every vessel that is registered in that State while violating international rules and

regulation, after the organisation confirms the illegal activities of that vessel through

evidence and investigation. The whole concept of flag State will be less interesting for

convenience flag States, that do not supervise their vessels and comply with the duties of flag

State. In addition, the organisation would control and supervise scientific research or

experiments in the high seas. If research or experiments could harm the biodiversity in the

high seas on basis of the Environmental Impact Assessment (EIA),183 the party involved

181 Article 60 (5) LOSC 1982 182 http://ec.europa.eu/clima/policies/ets/index_en.htm 183 EAI is an assessment of the environmental impact a project or activity performed by the government,

organisation or company. In an EAI, all possible consequences of the project or activity are assessed to

determine the impact on the environment and thereby if the project or activity should be authorised. The EIA

54

would not get permission for these activities. The same would apply to war zones and military

practice zones.

This organisation can collect money from variable sources, such as donations from State

parties, fines given to States and other parties and permit structures for fishing activities or

research activities. Every State party should get the possibility to point out a representative for

the organisation, so every State is represented in the organisation. Furthermore the States are

obliged to give military aid to enforce the regulations.

3.3 New provisions for a new regime.

To find a solution to the problem that when a foreign vessel is suspected of committing an

illegal discharge under the MARPOL on the high seas and that vessel is voluntarily in a port,

the port authorities of that port must prove that this illegal discharge actually happened. When

the suspicion arises at the moment the vessels enters a port it is very difficult and almost

impossible for the port authorities to prove the illegal discharge committed miles away. By

the time they would arrive at the place of the crime the illegal discharge could be gone into

the waves and sea. The only prove the port authorities have is the vessel itself. If the port

authorities have seen the logbook after a search on board of the vessel that further improve the

suspicion but do not prove the actual discharge, the port authorities cannot institute

proceedings. The solution for this problem could be the reversal of the burden of prove. If the

port authorities cannot prove the actual discharge at the high seas due to the circumstances,

but the port authorities have sufficient prove to establish great suspicion, then this would be

enough to reverse the burden of prove to the foreign vessel. The foreign vessel then must

evidence that they did not violate any international law. If the foreign vessel cannot prove

they did not violate an international law, then the port State can institute proceeding.

Another provision could be a change in jurisdiction. At this moment the flag State has

jurisdiction over vessels flying its flag. The only State that has jurisdiction over the vessels

navigating the high seas, is the flag State. The only exception to the jurisdiction of the flag

State is universal jurisdiction. The only situation whereby States have universal jurisdiction is

vessels engaging in an act of piracy. Every State has jurisdiction over a vessel engaged in

piracy activities according to article 105 LOSC. This means that every State has the right to

board, search and detain the vessel that is engaged in piracy on the high seas. This is called

universal jurisdiction. Universal jurisdiction is only applied to piracy and not to slave trade or

other illegal activities on the high seas. The reason that universal jurisdiction only applies to

piracy is the broader concept of the protection of universal trade and the fact that the vessel

engaged in piracy does not have a flag State. If a vessel is engaged in slave trade and is

should contain the description of the project, the environmental effects of the project, measures to avoid any

significant effects on the environment and reasonable alternatives for the activities that could have an effect on

the project. The UN-ECE-Convention on Environmental Impact Assessment in a Transboundary Context

(Espoo) convention, Finland, 25 February 1991, this convention is in force since 10 September 1997 and is

amended by MOP Sofia 2001 and MOP Cavtat 2004. This Convention made it mandatory for all parties to make

such an assessment of every project that could have an impact on the environment. The ESPOO Convention is

merely focused on the exchange of information in transboundary context. If there would be a significant effect

on the environment due to the activities taking place in a party State, that State must inform the possible effected

States before any decision is made about the activities. Furthermore States and the public can participate in the

procedure and this will be taken into account during the decision making process.

55

transporting slaves, this vessel would have a flag State and therefore the flag State should

intervene. Vessels that engage in illegal activities on the high seas do not interfere with other

vessels and therefore do not interfere with the universal trade. If a vessel is engaged in illegal

fishing activities, one could say that this vessel is interfering with international fish trade. In

order to give all States more power to act upon illegal activities on the high seas, this State

must have jurisdictional powers. In order to give all States jurisdictional powers over vessels

engaged in illegal activities on the high seas, universal jurisdiction could be a solution.

Universal jurisdiction would be a very far reaching solution, but it could be a solution to the

illegal activities on the high seas if States are willing to address those issues.

56

Conclusion

The biodiversity in the high seas is very vulnerable and should be protected from human

interference. The pollution from vessels and the exploitation of the high seas are destroying

the biodiversity in the high seas. Since the LOSC 1982 the high seas are even under more

pressure than before. With the establishment of the EEZ, the high seas became the only part

where the full freedoms, and especially the freedom of fishing, was still in force. Vessels that

could not go to the EEZ of other States, went to the high seas for their activities. The EEZ was

an idea to protect the fish stock outside the coastal State jurisdiction. After the Truman

Proclamation, several States established fisheries protection zones until the LOSC 1982

established the EEZ for this purpose. Not only the shift of fishing activities towards the high

seas creates destruction of the biodiversity in the high seas, the pollution of vessels, pollution

and harmful activities from platforms, installations, cables and pipelines or pollution scientific

experiments, military activities, ballast water and pollution from land based sources have a

great impact on the biodiversity in the high seas.

The pollution in the high seas, overexploitation of fish resources, scientific experiments,

military activities, ballast water and pollution from land based sources have driven most fish

stock nearly to extinction. If the world population would double in the next 100 years there

will be not enough fish resources to supply the world population. The fish stock are depleting

while the world population grows. Are the freedoms of the high seas more important than the

biodiversity in the high seas? If there is almost no biodiversity left in the high seas, then a

right to freely fish in the high seas is meaningless. This brings us to the problem of the res

nullius, if there is not enough fish for all fishing vessels to catch, the price of fish will go up

and the race for the bottom will begin. If the biodiversity in the high seas will be labelled as

common goods that need protection for future generations, it will be easier to address this

problem and protect the common good. The biodiversity in the high seas belongs to the

community as a whole and could be protected by a convention or organisation that will be the

manager of the common goods.

The flag State is the one that should address these activities with vessels flying their flag

under international law. Unfortunately the flag State does not address these issues in the

desired manner. It is important to give the port State, the coastal State and subregional or

regional fisheries organization or arrangement more competences to address these problems

when they encounter them, as the Fish Stocks Agreement relating to the conservation and

management of straddling fish stocks and highly migratory fish stocks 1995 already does.

Warships that encounter a vessel on the high seas that is participating in illegal activities of

any kind, should be able to board, search and detain that vessel immediately. If States are

willing to address these issues with their warships, most of the time this is not the case, than

the States must have the competences and rights to address these issues immediately.

The solution for these problems could be offered by a new convention addressing all these

issues at once for the high sea. This new convention on the protection of the biodiversity in

the high seas, is first especially for the biodiversity as a whole, secondly for activities on the

high seas and third especially for the effective enforcement of international rules and

regulations and will function as an umbrella convention. All conventions relating to these

issues will be referred to in this convention and it will try to bring all issues that are a threat to

the biodiversity in the high seas together under one convention, such as pollution in the high

57

seas, overexploitation of fish resources, scientific experiments, military activities, ballast

water and pollution from land based sources. The convention will create strict enforcement

rules and shift the enforcements rights to other States than the flag State, such as the coastal

State, the port State and subregional or regional fisheries organization or arrangement. The

downside of such a convention is that the enforcement of these provisions will end up with

States that also do not want to clean up the mess of other States and States that did nothing in

the first place. There will probably not be enough enthusiasm by States to actively enforce

the provisions of the convention, while the high seas is in great need of more regulations,

control, supervision and enforcement of international rules and standards. The convention

would refer to all other relevant conventions and create uniformity amongst those conventions

as an umbrella convention. The convention will create clear and easy enforcement measures

to create the possibility for States to act upon illegal activities. The UN is already drafting an

international instrument for the protection of the biodiversity in the sea beyond State’s

jurisdiction.

Another option that would solve this problem is the establishment of an international

organisation that protects the biodiversity in the high seas. This organisation would have the

competence to address all issues concerning the high seas and enforce the international rules,

regulations, standards and practices. This organisation would supervise all activities in the

high seas and intervene when necessary. If the organisation detects a vessel committing a

violation, the organisation could detain the vessel and ban this vessel from the high seas for a

period of time and determine a fine for the flag State. The organisation would be the manager

and protector of the common good for future generations.

The ultimate solution would be the combination of a new convention that protects the

biodiversity in the high seas and the establishment of a new organisation that would protect,

control, supervise and enforce this legislation to protect the biodiversity in the high seas. The

organisation and its competences could be established by the convention itself. In this

situation the convention would create the legal framework and the organisation would control,

supervise and enforce the provisions of the convention. The combination of the convention

and the organisation would give the best protection of the biodiversity in the high seas for

future generations.

58

Biography

Legislation

Conventions

International Maritime Organisation, ‘’International Bulk Chemical Code’’, 17 June 1983 (IBC Code)

International Maritime Organisation,’’ International Code for the Construction and Equipment of

Ships carrying Dangerous Chemicals in Bulk ‘’17 June 1983 (IBC)

International Maritime Organisation, ‘’International Convention on the Control of Harmful Anti-

fouling Systems on Ships’’, 5 October 2001

International Maritime Organisation, ‘’International Convention for the Control and Management of

Ships Ballast Water and Sediments’’, 13 February 2004

International Maritime Organisation, ‘’International Convention for the Prevention of Pollution from

Ships’’, 2 November 1973

International Maritime Organisation, ‘’International Convention for the Safety of Life at Sea’’ 1

November 1974 (SOLAS)

Food Agriculture Organisation, ‘’Agreement to Promote Compliance with International Conservation

and Management Measures by Fishing Vessels on the High Seas’’, 1993

United Nations,’’ Convention on Biological Diversity’’, 5 June 1992

United Nations, ‘’Convention on Environmental Impact Assessment in a Transboundary Context’’

(Espoo), Finland, 25 February 1991

United Nations, ‘’Globally Harmonized System for Hazard Classification and Communication’’, 13

December 2002 (GHS)

United Nations, ‘’Convention or the Prevention of Marine Pollution by Dumping of Wastes and Other

Matter’’, London, 13 November 1972

United Nations, ‘’Vienna Convention on the Law of the Treaties’’, 23 May 1969, https://treaties.un.org

United Nations, ‘’Fish Stocks Agreement relating to the conservation and management of straddling

fish stocks and highly migratory fish stocks’’, 24 July 1995, www.unec.org

United Nations, ‘’United Nations Convention on the Law of the Sea’’, 10 December 1982

Directives and Regulations

European Commission, Regulation 1726/2003, ‘’ Accelerated phasing-in of double-hull or equivalent

design requirements for single-hull oil tankers’’, 22 July 2003

European Union, Directive 89/398/EC

European Commission, Regulation 17/2002, ‘’Phasing out single hull tankers visiting European

ports’’ , 2002

European Union, Directive 1999/51/EC, ’’Restrictions on the marketing and use of certain dangerous

substances and preparations’’,26 May 1999

59

European Union, Directive 2002/62/EC, ‘’Restrictions on the marketing and use of certain dangerous

substances and preparations (organostannic compounds)’’9 July 2002

Resolutions and codes

International Maritime Organisation, ‘’International Code for the Safe Carriage of Packaged

Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Wastes on Board Ships’’, 1993, (INF

Code).

International Maritime Organisation, Resolution ‘Guidelines on places of refuge for ships in need of

assistance’, A.949(23), November 2003

International Maritime Organisation, Resolution, ’Maritime Assistance Services’ (MAS) A.950 (23), 5

December 2003.

International Maritime Organisation, ‘’Anti-Fouling Systems used on Ships’’, Resolution, A.895(21),

25 November 1999

Marine Environmental Protection Committee, Resolution, ‘’International Guidelines for preventing

the introduction of unwanted aquatic organisms and pathogens from ships' ballast water and sediment

discharges’’ MEPC.50(31), 5 July 1991

United Nations, General Assembly, Resolution A / RES / 69/292, ‘Development of an International

Legally binding instrument under the United Nations Convention on the Law of the Sea on the

conservation and sustainable use of marine biological diversity beyond areas of national

Jurisdiction’, 19 June 2015

United Nations, General Assembly, Resolution UNGA 99/292, Sixty-ninth session Agenda item 74 (a)

‘’Oceans and the law of the sea’’, 11 May 2015, A/69/L.65

Case law

Arbitration

Court of Arbitration, ‘’Case Concerning Delimitation of Maritime Areas St. Pierre and Miquelon’’,

Canada v. France, 31 Intl. Leg. Materials 1145, No. 5, September 1992

International Court of Justice

International Court of Justice, ‘’Anglo-Norwegian Fisheries case’’, 18 December 1951

International Court of Justice, ‘’Corfu Channel case’’, United Kingdom v. Albania, 25 March 1948, 4

International Court of Justice, ‘’Continental Shelf Case’’, Libya v. Malta, 21 March 1985, 13

International Court of Justice, ‘’Continental Shelf Case’’, Libya v. Tunisia, 24 February 1982

International Court of Justice, ‘’Delimitation of the Maritime Boundary in the Gulf of Maine Area ‘’,

Canada v. United States, 12 October 1984, 246, 294

International Court of Justice, ‘’Fisheries Jurisdiction Case’’, United Kingdom v. Iceland, 24 July

1974, 3

60

International Tribunal for the Law of the Sea

International Tribunal for the Law of the Sea, ‘’Artic Sunrise Request for the prescription of

provisional measures’’, Russian Federation vs The Kingdom of the Netherlands, 22 November 2013

International Tribunal for the Law of the Sea, ‘’Dispute Concerning Delimitation of the Maritime

Boundary between Bangladesh and Myanmar’’, Bangladesh v. Myanmar, 14 March 2012, case No. 16

International Tribunal for the Law of the Sea, ‘’M/V Saiga case’’, Saint Vincent and the Grenadines v.

guinea, case No. 2 , 1999, 3 ITLOS rep. 10, 120 Intl. L. Rep. 143, 38 Intl. Leg. Materials 1323

International Tribunal for the Law of the Sea, ‘’M/V Virginia G. Case’’, Panama v. Guinea-Bissau, 14

April 2014

Literature

Articles

International Law Commission , A. De Rocha Ferreira, C. Carvalho, F. G. Marchy, P. B.V. Rigon,

‘’Formation and evidence of customary international law’’, UFRGS Model United Nations Journal,

2013, page 190

Cedre, E.Mamaca, M. Girin, S.le Floch, R.el Zir, ‘’Review of chemical spills at sea and lessons

learnt’’, 31 July 2008, a technical appendix to the Interspill 2009 Conference White Paper ‘’Are HNS

spills more dangerous than oil Spills?" Cedre

F. Maes, , ‘’Over MARPOL en het gemeenschapsrecht, noot bij de zaak Peralta, Europees Hof van

Justitie,’’, Tijdschrift voor Milieurecht (T.M.R), page 111-125 , 1995

G. Hardin, ‘’The tragedy of the commons’’, 1968, 162 Science 1243,

I. Čović, A. Šimunac, J. Veža, M.Slišković, G. Jelić-Mrčelić: ‘Methods of Pollution Removal after

Tanker “Erika” Accident’’, 2013

J.M. Häkkinen & A.I. Posti, ‘Review of Maritime Accidents Involving Chemicals – Special Focus on

the Baltic Sea’’, TransNav, June 2014

NOAA’s Scientific Support, Monitoring, and Research ‘’ Twenty-Five Years After the Exxon Valdez

Oil Spill.’’ 2014

T. Basu, National Geographic, ‘Hawaii Molasses Spill: Better or Worse Than Oil?’, 17 December

2013

The Guardian, G. Wearden, ‘’More plastic than fish in the sea by 2050, says Ellen MacArthur’’, 19

January 2016

United Nations Department of Economic and Social Affairs, ‘’World population projected to reach

9.7 billion by 2050’’, 29 July 2015, New York

United Nations Division on Ocean Affairs and the Law of the Sea, ‘’Chronological lists of

ratifications of, accessions and successions to the Convention and the related Agreements as at 02

January 2015’’, 3 May 2016

United Nations Division for Ocean Affairs and the Law of the Sea Official Legal Affairs, Maria

Cecilia Trindade de Castro, The United Nations-Nippon Foundation Fellowship Programme 2012

61

‘’Implementation of Ballast Water Management Convention, 2004; Background Information on the

Subject and Enforcement Procedures’’, UN, New York, 2012

Books:

E. Egede, ‘’Africa and the Deep Seabed Regime: Politics and International Law of the Common

Heritage of Mankind’’, Springer, 2015, page 69

H. Grotius, ‘Mare Librium’, Leiden, 1609 or the translation H. Grotius, ‘The freedom of the high seas

or the right which belongs to the Dutch to take part into the East Indian trade’, Oxford University

press, 1916

L.B. Sohn, J.E. Noyes, E. Franckx, K.G. Juras, ‘’Cases and materials on the law of the sea’’, 2014,

second edition, Brill Nijhof, Leiden, p. 54

Y. Tanaka, ‘The international law of the sea’, Cambridge, 2015, p 5

Other sources

Food Agriculture Organisation, ‘’Code of Conduct for Responsible Fisheries’’1995

United Nations, Ad Hoc Open-ended Informal Working Group, Recommendations, ‘’Issues relating to

the conservation and sustainable use of marine biological diversity beyond areas of national

jurisdiction’’, 13 February 2015 A/69/780

United Nations, ‘’Report of the United Nations Conference on Environment and Development’’

(UNCED), Rio de Janeiro, 3-14 June 1992

United States, Presidential proclamation, ''Truman Proclamation Regarding Fisheries’’, No. 2668, 28

September 1945, 10 Fed. Reg. 12304, 13 Dept. State Bull. 486,

United States, ‘’Oil Pollution Act’’ (OPA), 1990, 101 H.R.1465, P.L. 101-380, amended by P.L. 106–

580, 29 December 2000