Reduction of Emissions of Greenhouse Gas (GHG) from Ships - Prevention of Pollution of the Marine Environment from Vessels - page 111

Director of the IMO Legal Office opined that “article 2 of the [MARPOL] Con-
vention defines “discharge” as meaning “any release howsoever caused from a ship
and includes any escape, disposal, spilling, leaking, pumping, emitting or empty-
ing.” Emissions from inefficient ships

engines burning low grade fuel would
appear to fall squarely within this definition.” In the MEPC meeting, it was agreed
by a majority of 60 member States that the MARPOL Convention Annex VI was
the appropriate vehicle for enacting energy efficiency requirements for ships. 43 The
MARPOL Convention is the most important international treaty for the prevention
of marine pollution by ships. Inclusion of these energy-efficiency regulations within
the MARPOL Convention may arguably call for the acceptance of these regulations
as GAIRS. However, persistent opposition from some countries from the beginning
may cause problems for the recognition of these regulations as GAIRS.
One of the ways in which a vessel flying the flag of a non-party to the Energy
Efficiency Regulations may be bound by the regulations is arguably the coastal
State jurisdiction. Coastal States may, in the exercise of their sovereignty within
their territorial sea, adopt laws and regulations for the prevention, reduction and
control of marine pollution from foreign vessels, including vessels exercising the
right of innocent passage. However, such laws and regulations shall not hamper
innocent passage of foreign vessels. 44 UNCLOS affirms the right to innocent
passage for vessels of all countries in the territorial sea of other countries. 45 To
control ship-generated pollution, a coastal State may enact laws for controlling
innocent passage through the territorial sea, provided that its national laws are in
conformity with international law. 46 Moreover, “such laws and regulations shall not
apply to the design, construction, manning or equipment of foreign ships unless
they are giving effect to generally-accepted international rules or standards”. 47
UNCLOS also grants the coastal states a right and jurisdiction for protecting and
preserving the marine environment in Exclusive Economic Zones (EEZ). 48
UNCLOS limits the prescriptive jurisdiction of coastal States in respect of their
EEZ to adopting laws and regulations conforming to and giving effect to generally-
accepted international rules and standards. 49 UNCLOS also provides that, in straits
used for international navigation, ships in transit passage shall comply with gener-
ally-accepted international environmental rules and procedures. 50 A coastal State ' s
regulations introducing EEDI and SEMP may be justified as implementation of the
generally accepted international

'

rules or standards under MARPOL 73/78

Convention.

43

Ibid at p. 29.

44

UNCLOS, art. 211(4).
45 UNCLOS, art. 17.
46 UNCLOS, art. 21.
47 UNCLOS, art. 21(2).
48 UNCLOS, art. 56.
49 UNCLOS, art. 211(5).
50 UNCLOS, art. 39(2)(b).