IMO Institutional Structure and Law-Making Process - Prevention of Pollution of the Marine Environment from Vessels - page 31

flag states and coastal states. 61 Finally, UNCLOS changes the focus from State s

responsibility for environmental damage to international cooperation for the pro-
tection of the marine environment. 62
Article 211 of the UNCLOS in particular deals with vessel-source pollution.
This article imposes a general obligation on States to establish international rules
and standards for prevention, reduction and control of vessel-source marine pollu-
tion. 63 The convention also obligates the State parties to adopt laws and regulations
for the prevention, reduction and control of pollution of the marine environment
from vessels flying their flag or of their registry. Such laws and regulations shall
have at least have the same effect as that of “generally accepted international rules
and standards”. 64 This indicates that “generally accepted international rules and
standards” is a minimum level of control. Flag States can make more stringent laws
for the ships which are entitled to fly their flag.
Like previously adopted legal instruments, UNCLOS mainly relies on flag
States

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prescriptive jurisdiction and enforcement power. This is one of the main
causes of the present unsatisfactory status of the implementation of international
marine environmental conventions. Many ships, particularly those from FOC
countries and land-locked countries, never visit their own country. Most of the
flag States do not see any benefit in making stringent regulations. On the other hand,
coastal States have a genuine interest to protect their marine environment; although
UNCLOS gives them a very restricted prescriptive and enforcement jurisdiction. 65
However, in the exercise of their sovereignty within their territorial sea, coastal
States may adopt laws and regulations for the prevention, reduction and control of
marine pollution. 66 The convention affirms the right to innocent passage for vessels
of all countries in territorial seas of other countries. 67 Nevertheless, any act of
'

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is illegal while a ship is in innocent passage. 68 wilful and serious pollution '

ability to
control vessel-source marine pollution while a ship is in innocent passage. The
coastal State can take action only if there is wilful and severe pollution; no
preventive action can be taken, even if the vessel is not equipped with the necessary
equipment for pollution prevention. For control of ship-generated-pollution a
coastal State may enact laws for controlling innocent passage through the territorial
sea, provided that the national laws are in conformity with international law. 69

The term ' wilful and serious pollution ' severely limits coastal States '

61

Ibid.

62

Ibid.

63

UNCLOS, art 211(1). See generally Bodansky ( 1991 ), Kindt ( 1984 ), and Dzidzornu and
Tsamenyi ( 1991 ).
64

UNCLOS, arts 211 (2) and 94.
65 See generally: Molenaar ( 1998 ), Johnson ( 2004 ), pp. 2 and 3; and Hakap¨¨ ( 2005 ).
66 UNCLOS, art 211(4).
67 UNCLOS, art 17. On innocent passage see generally Agyebeng ( 2006 ) and Hakap¨¨ and
Molenaar ( 1999 ).
68 UNCLOS, art 19.