IMO Institutional Structure and Law-Making Process - Prevention of Pollution of the Marine Environment from Vessels - page 32

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”. 70 These provisions are somewhat ambig-
uous. It is clear that a coastal State can enact national laws to give effect to
international law regulating design, construction, manning or equipment of ships.
However, it is not very clear whether a coastal State can take action against a
foreign ship not conforming to these requirements but not engaged in any wilful and
severe pollution while in innocent passage.
Finally, the Convention grants the coastal States a right and jurisdiction for
protection and preservation of the marine environment in Exclusive Economic
Zones (EEZ). 71 The convention limits the prescriptive jurisdiction of coastal States
in the EEZ to giving effect to international law and enacting national laws which are
in conformity with international law and standards. 72 If the international rules and
standards are inadequate to meet the special conditions of certain areas, coastal
States can declare defined areas of their respective EEZs as a special area and adopt
special mandatory measures for the prevention of pollution from vessels after
consultations through the competent international organization. 73 The UNCLOS
also provides that ships in transit passage in straits used for international navigation
shall comply with generally-accepted international environmental rules and

procedures. 74
The Port State enforcement jurisdiction is the most innovative provision of the
UNCLOS. The UNCLOS, for the first time, provided power to port States to
investigate or prosecute any violation of international standards outside their
jurisdictions; namely, internal waters, territorial seas and EEZ. But the vessel
must be voluntarily within its port. 75 As will be seen in the next chapter, MARPOL
73/78 granted jurisdiction to coastal States only to take action against any discharge
within its jurisdiction. Providing ample jurisdiction only upon flag States created
some practical problems. As noted earlier, a huge number of ships operate with
FOCs registered in the open registries. Many of these open registry countries have
no meaningful connection with the ships entitled to fly their flags. Moreover, FOCs
ships very rarely or never visit their own marine area. These countries find no
incentive to prescribe stringent national regulation or proper implementation of
international instruments.
The issue of vessel-source air pollution has been handled separately to pollution
from or through the atmosphere. The UNCLOS imposed an obligation on both

70

UNCLOS, art. 21(2).

71

UNCLOS, art. 56.
72 UNCLOS, art. 211(5). See generally Dzidzornu ( 1997 ) and Berret ( 1995 ).
73 UNCLOS, art. 211(6). See generally Molenaar ( 1998 ), pp. 402-418.
74 UNCLOS, art. 39(2)(b). See generally Beckman ( 1998 ).
75 UNCLOS, art. 218. See generally McDorman ( 1997 ), Legatski ( 1977 ), Anderson ( 1999 ), and
Kasoulides ( 1997 ).