Enforcement of the 2020 sulphur limit for marine fuels: Restrictions and possibilities for port States to impose fines under UNCLOS
| Date | 01 November 2019 |
| Author | Jesper Jarl Fanø |
| Published date | 01 November 2019 |
| DOI | http://doi.org/10.1111/reel.12306 |
278
|
RECIEL. 2019;28:278–288.
wileyonlinelibrary.com/journal/reel
1 | INTRODUCTION
When the champ agne corks go off on New Year’s Eve in 2019, it will
not only mark the b eginning of a new decade, b ut also the entry into
force of the most am bitious and life‐saving enviro nmental maritime
regulations in recent years. A change in existing regulation will on 1
January 2020 d rastically lower th e allowed amount of sulphu r in ma‐
rine fuels.1 This rule has the potent ial of annually prevent ing 137,000
people worldw ide from facing a p remature death a nd prevent 7.6
million children from developing asthma.2
Complying with this sulphur regulation to achieve these global
health benef its might seem li ke the most logica l thing to do, but it
could – just like the s ulphites of the proverbia l New Year’s Eve cham‐
pagne – result in se vere headache for s hipowners as com pliance
with the regulat ion will be expen sive.3 This headache can quickly
turn in to a throbb ing migraine for co mpliant shipowne rs if
non‐compliant competitors can distort the competitive playing field
by infringing on th e regulation without be ing effectively sa nctioned,
which is a real risk .
Violations of the current sulphur regulation are often met by
fines rangin g from US$10,000 to 50,0 00, imposed by the au thorities
in the port wh ere a foreign ship, during so‐c alled port State contr ols
(PSCs), is found not to b e compliant.4 These levels of f ines will how‐
ever be inadequat e to sanction violation s of the upcoming 2020 sul‐
phur regulatio n as a single infringement c an easily result in sav ings of
several hundre ds of thousands of d ollars, and in cer tain situat ions
close to a million do llars. Despite this obviou s discrepancy between
the current level of f ines and the potentia l gains made through il legal
behaviour, it is uncer tain whether t he amount of such fi nes will be
corrected to deter non‐compliance.
This bleak assum ption is not based on por t States being unwilling
to enforce effic iently, but instead fo unded in a genera l belief that
they are unable to do so due to a li mited jurisdiction relating to t he
1 Internatio nal Convention f or the Preventio n of Pollution fro m Ships (adopted 11
February 1973 , as modified by th e Protocol of 17 Febru ary 1978, entered i nto force 2
October 1983) 13 40 UNTS 61 (MARPO L) Annex VI, Reg ulation 14.1.
2 M Sofiev et al, ‘C leaner Fuels fo r Ships Provide Pu blic Health Be nefits with Cl imate
Tradeoffs’ (2 018) 9 Nature Commu nications 4.
3 J Wittels, ‘ Maersk sees Fue l Bill Soaring by $2 B illion from 202 0 Rules’ (Bloomb erg, 29
August 2018).
4 Pacific Gre en Technologies G roup, ‘The IMO 2 020 Regulator y Jungle – Who Wil l
Enforce the Su lphur Cut?’ (22 A pril 2019) entec hnolo gies.com/
artic les/imo-2020-regul atory-jungle-who-will-enfor ce-sulph ur-cut/>. See also HM
Ringbom, ‘ Enforcement of th e Sulphur in Fuel Re quirements : Same, Same but D ifferent’
(2017)
om.pdf?seque nce=4&isAll owed=y> 21.
Received: 19 Febru ary 2019
|
Revised: 17 June 2019
|
Accepted: 28 June 2019
DOI: 10 .1111/reel .12306
SPECIAL ISSUE ARTICLE
Enforcement of the 2020 sulphur limit for marine fuels:
Restrictions and possibilities for port States to impose fines
under UNCLOS
Jesper Jarl Fanø
© 2019 John Wiley & Sons Ltd, 9600 Garsi ngton Road, Oxford OX4 2DQ, UK and 350 Main Stre et, Malden, MA 02148, USA.
Correspondence
Email: jesper.fanoe@maersk.com Sulphur pollution e manating from the exhaust g ases of ships has a negative impact o n
the environment and on h uman health, in particu lar resulting in early deaths an d child
asthma. On 1 Januar y 2020, internatio nal regulation lowering t he allowed amount
of sulphu r in marin e fuels w ill come into force. However, compliance with, and ef‐
fective enforcement of, this r egulation is very uncertain due to t he vast savings that
shipowners can ac hieve by not complying. The l ack of effective an d deterring fines
is often attribu ted to the lack of jurisdiction when a viol ation takes place on the high
seas. This arti cle aims to provide an analys is of the special jurisdic tional basis codi‐
fied in the United Nati ons Convention on the Law of the Sea for por t States to assert
jurisdiction over vio lations of the streng thened 2020 sulphur limit on the high seas,
encompassing the rig ht to impose dissuasive fines.
|
279
FANØ
parts of a viol ation which take place outsid e own waters, for exam‐
ple on the high sea s. Discussions have been ongoing on t his matter
for several year s among authori ties, with some of t hem expressing
views that a (por t) State must have ex traterritor ial jurisdict ion for
sanctioning infringements in these areas.5
The basic princ iples of international law w hich govern and deter‐
mine the jurisdi ction of a State on the sea , including over vessels , are
to a large extent co dified in the Unite d Nations Convention on the
Law of the Sea (UNC LOS).6 Article 927 of UNCLOS reite rates a basic
principle of the l aw of the sea, often r eferred to as the fl ag State
principle.8 This principle stipulates that flag States9 have an unques‐
tioned jurisdi ction on the hig h seas over vessels fl ying their flag.10
This can, none theless, present a pr oblem if the flag State is re luctant
to sanction these violations.11
The undispute d nature of the flag State’s jurisdic tion might have
certain merits when dealing with high seas enforcement of different
international r egulations on saf ety, navigation, man ning or labour
conditions.12 However, Part XII of UNCLOS provide s some excep‐
tional possibil ities for non‐flag States (i.e . coastal and port State s) to
enforce internat ional environmental legisla tion on the high seas if a
flag State fails to d o so.13
This article a rgues that som e of these exceptions t o the flag
Sta te prin cipl e, foun d in Par t XII of UNCLO S, prov ide th e nece ssar y
jurisdictio n to enable port S tates to impose fi nes that adequa tely
sanction vio lations of the 2020 su lphur rules on t he high seas.14
This is p rimarily based on an interpret ation of the term ‘discharge’
used in Artic le 218 of UNCLOS to encompass emissions.15 This in‐
terpretatio n is based on an application of the ge neral principles of
international l aw codified in Ar ticles 31 and 32 of the V ienna
Convention on the L aw of Treaties (VCLT),16 suppor ted by refer‐
ences to how the ter m is defined and use d in other mariti me
regulations.
First, Section 2 presents the strengthened sulphur regulation
of Ann ex VI of the In ternational Co nvention for the Prevent ion of
Pollution from S hips (MARPOL), i ncluding the pr actical cha llenges
associated with d etecting and enforcin g violations of this regula tion.
Section 3 discusses the relevant p rovisions of Par t XII of UNCLOS,
as this part entails regulation which provides the different types of
States with spe cial obligations and right s for enforcing environmen‐
tal regulation s. It examines the specia l enforcement and notific ation
obligations for f lag States under A rticle 217 of UNCLOS, fo llowed
by a discussion of the e xtraterrito rial right for por t States to en‐
force on the high se as pursuant to Ar ticle 218. Secti on 4 clarifies
how the overlappi ng jurisdicti on between flag a nd port State s can
be resolved in acc ordance with Ar ticle 228 of UNCLOS. S ection 5
concludes.
2 | MARPOL ANNEX VI: REGULATING THE
MAXIMUM SULPHUR CONTENT IN MARINE
FUELS
In addition to a basic set of articl es, MARPOL includes six annexe s
addressing different voluntary or accidental discharges from ships
through regula tions for the preven tion of pollution f rom: oil
(Annex I); noxious liquid substances in bulk (Annex II); harmful
substances carried by sea in packaged form (Annex III); sewage
(Annex IV); g arbage (Annex V); and air poll ution (Annex VI).17
While the regul atory focus of the first f ive annexes of MARPOL is
on preventing an of ten visible and t angible, but als o delimited,
pollution of the environm ent, Annex VI attempts to achieve a
global reduction of air pollution emanating from ships by regulat‐
ing certain ai rborne pollutant s, primarily arising f rom the combus‐
tion of marine fue ls.18 This covers emissi ons of sulphur dioxid e,
nitrogen dioxide, volatile organic compounds and ozone‐depleting
substances.19
In MARPOL Annex VI, the global sulphur limit is specified in
Regulation 14.1, which states:
The sulphur conten t of any fuel oil used on bo ard ships
shall not exceed the following limits:
4.50% m/m [by mass] prior to 1 Januar y 2012;
5 For example, i n Denmark wher e the Danish Envir onmental Prot ection Agen cy, the
Danish Marit ime Authorit y, public prosec utors and the Da nish Attorney G eneral forme d
a ‘sulphur enfo rcement task fo rce’, where this mat ter was discusse d; see
ft.dk/samli ng/20161/ almde l/mof/spm/738/svar/14135 65/17680 08/index.htm>.
6 United Natio ns Convention on t he Law of the Sea (ad opted 10 Decembe r 1982, entered
into force 16 Novem ber 1994) 1833 UNTS 3 (UN CLOS).
7 ibid art 92(1).
8 A Henrikse n, International Law (Oxford University Press 2017) 165.
9 The term ‘fl ag State’ refers to t he State in which a s hip is registere d. UNCLOS (n 6) art s
90–91.
10 ME Davies et al, ‘ Study on the Econ omic, Legal, E nvironmenta l and Practic al
Implicati ons of European Un ion System to Redu ce Ship Emissions o f SO2 and NOx’
(European Commission 2000) 13.
11 They are at tim es also referre d to as ‘open regist ry flag States’ o r ‘flags of conve nience’.
See JNK Manse ll, Flag State Resp onsibility: H istorical Deve lopment and Co ntemporary Is sues
(Springer 20 09) 18, fn 14; and Henr iksen (n 8) 165.
12 UNCLOS (n 6) art 94.
13 M Dixon, International Law (Oxford Un iversity Pre ss 2007) 235.
14 KM Gjerde et a l, ‘Regulator y and Governan ce Gaps in the Inter national Regim e for the
Conserva tion and Susta inable Use of Mar ine Biodivers ity in Areas beyo nd National
Jurisdict ion’ (IUCN 200 8) 11.
15 Y Tanaka, The Intern ational Law of th e Sea (2nd edn, Ox ford Univers ity Press 2015) 296 .
16 Vienna Conve ntion on the Law o f Treaties (adopted 23 M ay 1969, entered into force
27 January 1980 ) 1155 UNTS 331 (VCLT) ar t 31; see Henrikse n (n 8) 53–56.
17 The first f ive annexes to the M ARPOL Convent ion were draft ed simultane ously
alongside t he convention, a lthough they c ame into force at sep arate times. A b etter
knowledge of d ifferent form s of air pollutio n, including su lphur polluti on and its adver se
effects o n the human heal th and the enviro nment, showed i n the 1970s and 1980s th at
there was a cle ar need for the gove rning of such emis sions from ship s. The IMO
instigate d such regulator y work at the begi nning of the 1990s . This regulator y process
culminated i n the adoption of a n ew annex (Anne x VI) to the MARPO L Convention
dealing wit h air pollution , which entered i nto force on 19 May 2005 .
18 Tanaka (n 15) 291.
19 In 2011, throug h the adoption of r esolution MEP C.203(62), An nex VI was expan ded to
include regulations which aim to increase the energy efficiency of ships resulting in
reduced emis sions of harmful s ubstances , such as carbon d ioxide (CO2) from shi ps; IMO,
‘Amendment s to the Annex of the P rotocol of 1997 to Amen d the Internati onal
Convention fo r the Preventio n of Pollution fro m Ships, 1973, as Modi fied by the Protoc ol
of 1978 Relating The reto’ MEPC Resol ution MEPC. 203(62) (15 July 2011).
280
|
FANØ
3.50% m/m on and after 1 Janu ary 2012; and
0.50% m/m on and after 1 Janua ry 2020.20
This means that on 1 J anuary 2020 the allowed sulp hur content
in marine fuels w ill need to be lowere d significantl y from 3.50 to
0.50 percent .21 This limit will a pply on a global sc ale, includin g the
high seas.22
The potential environmental and health benefits from this
regulation are ma ny, but some of the most not iceable are the
expected pr evention of around 137,000 e arly deaths and 7.6
million asthma c ases amongst children per ye ar, m entioned ear‐
lie r.23 The 0.50 p ercent fuel is, howeve r, expected to be vastly
more expensive than the cur rent 3.50 percent. It has been calcu‐
lated that a contai ner vessel, which infringe s on the new sulphur
regulation whilst sailing a normal commercial roundtrip route
from a port in A sia to a port in Europe, could result i n saving of
as much as US$1 million.24 This may even go up to US$700, 000
for a single voyage, me aning savings of US$1.4 mil lion for a
roundtrip.25
Nonetheless , the 3.50 percent fuel wil l still be an available prod‐
uct on the glob al fuel market after 202 0 because ships are pe rmitted
to use (non‐complia nt) high‐sulphur fuel i f they are equipped wit h an
approved exhaus t gas cleaning system (EGC S).26
Unless equippe d with an EGCS, all ships will have to comply with
the 0.50 percent sulp hur limit, also when calling at a foreign port in a
State that is party to MARPOL Annex VI, irre spective of whether the
ship’s flag State is party to Annex VI .27 This is based on the pr inciple
of ‘no mo re favou rable treatment’, which stipulates that all ships
must comply with the regulation of an In ternational Maritime
Organizatio n (IMO) convention that e mbodies t his princi ple when
voluntary c alling at a port in a State that is par ty to such a conven‐
tion. With regard to MARP OL Annex VI, Regulat ion 10.3 r efers to
Article 5.4 of t he MARPOL Convent ion, which codif ies this
principle.28
In additi on, MARPOL Ann ex VI allows for th e designation of ce r‐
tain areas as Emis sion Control Are as (ECAs).29 Regulation 14.4 of
MARPOL Annex VI specifies th at a stre ngthened 0.10 perce nt sul‐
phur limit appli es in areas defined as Sul phur Emission Control A reas
(SECAs). H ere, it is relevant to n otice that a large part of European
Union (EU), Canad ian and North A merican water s (including th e
Caribbean) a re designated as SECAs.30
At the regional leve l, the EU has adopte d rules for sulphu r emis‐
sions, incl uding the 0.10 and 0.50 percent limi ts, through t he Sulphur
Directive.31 The Directive introduces additional obligations compared
to MARPOL Annex VI, for instance requiri ng that ships at berth in an
EU port for over two h ours use 0.10 p ercent fuel, also outside SECAs.32
It also obliges pass enger ships operating on reg ular services to or from
any EU Member State to use a maximum of 1.50 percent sulphur
fuel.33 However, the Directive is limited in its geographical application
compared to Annex VI as it solely app lies to internal and ter ritorial wa‐
ters and the exclu sive economic zones (EE Zs)34 of EU Member State s.35
Since this article focuses on determining whether non‐flag States
can assert juri sdiction over infringement s of the 0.50 percent sul‐
phur limit on the hi gh seas, the following will not f urther examine the
0.10 percent SECA limit or the specific requireme nts of the EU S ulphur
Directive. Instead, this section will examine two distinct challenges
pertaini ng to ensuring ef fective enforcem ent of the 0.50 p ercent sul‐
phur limit. Th ese challenges ar e, first, th e ability to detec t violations
occurring on th e high seas; and, secon d, the jurisdict ional basis for non‐
flag States to san ction violations aft er detection.
2.1 | Detec ting violations
Violations of sulphur regulations are primarily detected by draw‐
ing fuel sampl es from fuel tanks of ships d uring PSCs. The sulphur
content of the samp led fuel is subse quently measur ed at an ac‐
credited labor atory. Althoug h this fuel sampl ing method is ver y
20 MARPOL (n 1).
21 Regulation 14.1 (i bid) refers to th e maximum allowe d sulphur conte nt in terms of ‘%
m/m’. The abbreviat ion ‘m/m’ means ‘mass/m ass’, wherefore ‘% m /m’ refers to ‘mass/
mass percent ’. For reasons of simp licity, this ar ticle will refer t o the percenta ge of
sulphur, i.e., ‘ 0.50%’ when ref erring to the glo bal limit in Regu lation 14.1.3.
22 An editorial a mendment to Reg ulation 14.1 will on 1 Ma rch 2020 delete th e references
to the previou s limit values of 4 .50% and 3.50 % pursuant to Reg ulations 14.1.1 and
14.1.2. Regulat ion 14.1 will hereaf ter only consis t of one subparag raph (14.1) and one
limit value in t he form of the 0.5 0% limit, whic h at that time will ha ve entered into for ce
two months earlier.
23 These calcu lated benefit s relate to – and ar e achieved by – the gl obal drop of allowe d
sulphur in mar ine fuel from 3 .50 to 0.50 perce nt.
24 G Bowman, ‘Ful l Steam Ahead: A s IMO 2020 Approa ches, How is the S hipping Indus try
Preparing? ’ (Ocorian, 11 Apr il 2019).
25 Wittels (n 3).
26 An EGCS is a tech nical device th at reduces the am ount of sulphur e mitted to the
atmospher e to a level equival ent to compliant 0 .50 percent fu el. The most pop ular of
these syst ems are the so-ca lled scrubbe r systems, whi ch ‘wash’ (scrub) c ertain
pollutant s, including s ulphur part icles, from the e xhaust gas. S ee MARPOL (n 1) Ann ex
VI, Regulat ion 4.1; and IMO, ‘20 09 Guideline s for Exhaust G as Cleaning Syst ems’ MEPC
Resolutio n MEPC.259(68) (15 Ma y 2015).
27 Crucially, 94 St ates have ratifie d MARPOL Anne x VI. See IMO, ‘St atus of Conventi ons’
lt.a spx>.
28 Other IMO Co nventions codif ying the ‘no mor e favourable tr eatment prin ciple’ include
the SOLA S Convention (Inte rnational Co nvention for the S afety of Life at Se a (adopted 1
November 1974, enter ed into force 25 May 1980 ) 1184 UNTS 278 art 1(3)), t he Ballast
Water Managem ent Convention (I nternationa l Convention for t he Control and
Management o f Ship’s Ballast Wate r and Sediment s (adopted 13 Febr uary 2004 , entered
into force 8 Sept ember 2017 30 ILM 1455 ar t 3(3)) and the STC W convention
(Internati onal Conventio n on Standards of Trai ning, Certif ication and Wat chkeeping for
Seafarers ( adopted 7 July 1978, e ntered into force 2 8 April 1984) 2300 1 UNTS art 10(5)).
29 Ringbom (n 4).
30 See MARPOL (n 1) A nnex VI, Regula tion 14.3.
31 Directive ( EU) 2016/802 of the Euro pean Parliam ent and of the Coun cil of 11 May
2016 relating to a r eduction in th e sulphur conten t of certain liq uid fuels [2016] OJ
L132/58 (Sulphur Directive).
32 ibid art 7.
33 ibid art 6(5). T his particul ar regulation wi ll cease to exist o n 1 January 2020 , as it will be
covered by the gl obal 0.50 perc ent limit. This r equirement wa s the subject of t he 2014
Manzi case, whic h among others br ought the compa tibility of thi s obligation wi th
MARPOL Ann ex VI before the C ourt of Justic e of the European Un ion; Case C-537/11,
Manzi and Compagnia Naviera Orchestra, ECLI:EU:C:2014:19.
34 For a descripti on of the regulato ry aspect s of EEZs, see Dixo n (n 13) 215.
35 Sulphur Dire ctive (n 31) art (2) S ulphur Direc tive.
|
281
FANØ
effective fo r proving if a ship is com pliant while at ber th, it can
be a somewhat inef fective tool for detec ting violations commi tted
while sailing. Larger commercial vessels of ten have several fuel
tanks on boar d, which they can switch bet ween, but the fuel sam‐
ple is almost alw ays drawn from the tank feedi ng directly into the
engine.
A breakthro ugh for detecting non‐comp liant vessels was how‐
ever achieved in October 2018, wh en the IMO’s Mari ne
Environment Protection Committee (MEPC) adopted an amend‐
ment to Regu lation 14.1 of MARPOL Annex VI.36 The so‐called
‘carriage ban’, which comes into force in March 2020, strengthens
the prohibition by not o nly coveri ng the ‘use’ of non-compliant
fuel but also fuel ‘carried for use’.37 In a nutshell, this change in
word ing in MARPO L Annex VI will make it i llega l for a sh ip wit hout
an approved EGC S to carry non-comp liant fuel in any fuel t ank on
board, there by also allowing fue l samples to be dr awn from all
tanks.
Still, proving vio lations on the high seas may req uire using fuel
sampling in conj unction with ot her methods of det ection.
Different solutions38 are in the ma king for solving t his problem,
many of which are of a tech nical nature, su ch as the so‐call ed
‘sniff ers’. Such dev ices measu re the sulph ur content in a ship’s ex‐
haust gas, the reby determinin g if the ship uses a com pliant fuel.
Sniffers c an be attache d to drones, plane s, helicopters , bridges
and so on, from wh ere they can dete ct violations. 39 The use of
satellites and the development of handheld measuring devices (al‐
lowing for inst ant sulphur measuring in a P SC fuel sample) are also
underway.
If a detection is made during a PSC, the port State will often de‐
tain the ship an d require it to unload (de‐bunker) th e non‐compliant
fuel and take on b oard (bunker) compliant fuel .40 The port State will
also issue a fine. T he question is whether th ese port State fines will
be able to deter any fu ture violations a nd hold up in cour t if con‐
tested by a shipown er or flag State.
2.2 | The challenge of enfo rcing MARPOL Annex VI
through UNCLOS
A second challenge with enforcing Annex VI is the iss uing of effec‐
tive fines by non‐fl ag States. While t he first par t relating to detec‐
tion is a multimill ion‐dollar indu stry and has b een the subjec t of
many years of work within the IMO,41 effec tive sanctioning has re‐
ceived very little attention at the IMO and in the legal literature.
Molenaar and R ingbom are a few of the schol ars that have described
the juris dictional chal lenges with enforcing MARPOL Annex VI, of‐
fering insight s into how this can be achieved.
Molenaar refers inter alia to Regulation 11.6 of MARPOL Ann ex
VI as the solution f or enforcement of the sulphur lim its.42 This regu‐
lation states:
The international law concerning the prevention, reduc‐
tion, and control of p ollution of the marine environm ent
from ships, including that law relating to enforcement
and safeguards, i n force at the time of application or in ‐
terpretation of this An nex, applies, mutatis muta ndis, to
the rules and sta ndards set forth in this Ann ex.43
Molenaar argu es that all States, ir respective of the se being party t o
this regulation o r not, are bound by this given it s erga omnes nature.44
Molenaar concl udes that the reference to th e mutatis mutandis princi‐
ple45 in this regulat ion allows for the releva nt provisions of UNCLOS to
be interpreted to cove r the release of emissions: ‘Emp hasizing that the
incorporati on of the phrase “mut atis mutandi s” serves no othe r pur‐
pose than that re levant articl es of UNCLOS refer to “discha rge” and
that this Annex addresses emissions.’46 This allows for the application
of Article 218 of UNCLOS to e mission regulatio n, even though this pr o‐
vision specifically refers to ‘discharge’.47 Ringbom reiterates this ap‐
proach,48 supporting th e application of the mutatis mutandis principle
inter alia by referring to the conclu sions of Molenaar.49 Ringbom, as
Molenaar, finds tha t this allows Articl e 218 of UNCLOS to provide port
States with the n ecessary jur isdiction to enforce emissions vi olations
on the high seas.
While there is val ue in the theore tical methods d eveloped by
Molenaar and Ringbom, this article focuses on another approach
that offers a leg al basis which authori ties and public prosec utors can
rely upon when s anctioning su lphur violation s. This articl e also
36 Besides Regu lation 14.1, this ame ndment change s other relevan t regulations of A nnex
VI, includi ng Regulation 14.4 a nd the Internat ional Air Pollu tion Preventio n Certifica te.
An editoria l change to the word ing of Regulation 14. 3.1 will also come i nto force as part
of the entry i nto force of the car riage ban as the re ferences to Regu lation 1.11.2 in
MARPOL Ann ex I and Regulati on 1.14.6 of MARPOL An nex V defining t he Baltic and
North Seas a s ‘emission contr ol areas’ is change d, as MARPOL An nex I and V define
these areas a s ‘special areas’. EC As are only refe renced, and the refore define d, in
MARPOL Ann ex VI, requiri ng this change in Re gulation 14.1.3.
37 See IMO, ‘Imp lementation o f Sulphur 2020 Li mit – Carriage B an Adopted’ (26 Oc tober
2018) /ww w.imo.org/en/Media Centr e/Press Brief ings/Pages/ 19-Imple menta
tion‐of‐sulph ur‐2020‐limit‐.aspx>.
38 See IMO, ‘Indi cative Sugges tions to Assis t the Interses sional Meeting i n Preparing
Draft Guid elines for Con sistent Implem entation of Reg ulation 14.1.3 of MAR POL Annex
VI’ ISWG-AP 1/2 ( 3 May 2018). The IMO’s MEP C has through th is ongoing work tr ied to
strength en enforcemen t of the sulphur reg ulation and clo se potential lo opholes by inter
alia amending gui delines on PSC a nd EGCSs. For ins tance, it has cre ated unified
templates fo r Fuel Oil Non‐avail ability Repo rts in accord ance with Regula tion 18 of
Annex VI and by c reating repor ting obligat ions under the I MO’s reportin g system, the
Global Inte grated Shippi ng Information Sy stem (GISIS).
39 ‘Sulfur-snif fing Drone to Pa trol Danish Water s’ (Maritime E xecutive, 13 Apr il 2019)
ing‐drone‐to‐patrol‐danish‐waters>.
40 Ringbom (n 4) 32.
41 It has among ot hers formed th e basis of the ongoi ng work of the MEPC (a nd Pollution
Prevention a nd Response sub committee) on gu idelines for t he consistent im plementa‐
tion of Regulat ion 14.1.3 of MARPO L Annex VI. See a lso n 38.
42 EJ Molenaa r, Coastal State Jurisd iction over Vesse l‐source Pollut ion (Kluwer L aw
International 1998).
43 See MARPOL (n 1) A nnex VI, Regula tion 11.6.
44 Molenaar (n 42) 507–508.
45 ‘Mutatis mutandis’ basically mean s ‘with the nece ssary chang es applied’ or ‘h aving
changed what needs to be changed’.
46 Molenaar (n 42) 50 6.
47 ibid 508–509.
48 Ringbom (n 4).
49 ibid 9 and 14, fn 55.
282
|
FANØ
suggests usi ng Article 218 of UNCLOS as the legal b asis for enforc‐
ing the 0. 50 percent sulphur lim it on the high seas . However, it sets
itself apar t from the conclu sions of Molenaar a nd Ringbom as this
application i s not based on Article 218 of UN CLOS being interpreted
mutatis mutandis in accordance with Regul ation 11.6 of Ann ex VI.
Instead, as described in S ection 3.2, it is based on an interpretation
of the term ‘discharge’ in Art icle 218 in accordance with basic princi‐
ples of interpret ation of international law as c odified in Article 31 of
the VCLT, supported by how the ter m is defined in Article 2 of the
MARPOL Convention50 and already applied i n Regulation 12.7 of
MARPOL Anne x VI.
The differen t views on how Art icle 218 of UNCLOS is applied
might seem incons equential, but they a re of great importan ce for the
practical application, for insta nce ensuring a sufficient jurisdictional
basis for author ities to impose fines. R ecalling in particu lar the previ‐
ously mentioned apprehension by some authorities51 to assert extra‐
territorial jurisdiction when imposing fines, using the reference to
the mutatis mutandis principle in Regulat ion 11.6 of MARPOL Annex
VI to int erpret A rticle 218 of UNCLOS to en compas s emissio ns is too
unsubstanti ated to – for a lack of a better ter m – hold up in court, as it
could be met with s everal legal argument s by an opposing council.
First, UNCLOS i s a framework convention wit h 168 parties52 that
codifies basic p rinciples of intern ational law, that is, the law of t he sea.
It is doubtful, and poss ibly inconsistent with the lex superior principle,
that a regulation i n an annex to an environment al convention with 94
participat ing States can interpr et and change the appli cation of a pro‐
vision of UNCLOS. Thi s is especially the case if o ne recalls the princi‐
ple of no more favour able treatme nt that dictates t hat ships from
States not part y to Annex VI must also adhere to t he regulation.
Second, if the mutatis mutandis principl e allows for all discharge
provisions of UNCLOS to e ncompass emissio ns, it could lead to
strange and unwanted result s. The term ‘di scharge’ is used in Articles
42, 218 and 220 of UNCLOS, but o nly Article 218 allows for a n inter‐
pretation of the t erm to its full extent by refer ring to any discharge.
Article 42(1)(b) uses t he term in a fixed form per taining to discharge
of ‘oil, oily wastes and other noxious sub stances in the strait’ and
Article 220 (5–6) uses it to describe discharg e in an EEZ that causes
(or thr eatens to cause) ‘signi ficant pol lution or major da mage’ to a
coastal State. The term ‘discharge’ used in Artic le 42 is clea rly incom‐
patible with it en compassing emission regulat ions as it explicitly re‐
fers to pollution by specific substances.53 I t is also dif ficult to
interpret the te rm as used in Article 220 so a s to allow the inclusion
of emissions: it is dou btful that emissions of sul phur or other air pol‐
lutant substances can meet the criteria of causing ‘significant’ or
‘major’ pollution to a coastal State, as such pollution must be tangib le
and have a causal li nk to the ship which co mmits the viola tion.
Molenaar,54 as well as a 2000 stud y carried out for t he European
Commission,55 argue other wise, again rely ing on the wording of
Regulation 11.6 of Annex VI to allow Article 2 20(5–6) to cover air
emissions. Rin gbom, however, also favou rs the above‐ment ioned
conclusion, for instance that those provisions cannot encompasses
emissions.56 Such violat ions contribute t o overall air pollut ion, but
do not result in spe cific damages to a coastal St ate.57
Third, Regul ation 11.6 not only refers to ‘enforcement ’ in accor‐
dance w ith internatio nal law, bu t also ‘safeguards’, which could in‐
clude the prin ciple nulla poena sine lege, also referred to as the
principle of legality, which inter alia entails that criminal sanctioning
should only be ba sed upon infring ements of writ ten legislation (l ex
scripta) that is exp ressed with adequat e precision and clarit y.58 Using
a re gulation in MARPOL Annex VI to mutatis mutandis interpret a
provision in UNCLOS mi ght not fulfil this requireme nt, whereas the
application of A rticle 31 of the VCLT will, due the VCLT’s recognize d
status within international law.
Thus, there ar e clear argument s against allowing Article 218 of
UNCLOS to apply to emis sion violations e xclusively by way of
Regulation 11.6 of MARPOL Annex VI.59 Such arguments would
likely be used by any cou nterpart in a ju dicial dispute, b e it a com‐
pany in a national cou rt contesting a fine, or by a (flag ) State at the
International C ourt of Justice or at the Inte rnational Tribunal for the
Law of the Sea.60
3 | JURISDICTION FOR ENFORCING THE
SULPHUR REGULATION ON THE HIGH SE AS
The flag State pr inciple is codifi ed in Article 92 of U NCLOS, which
states that shi ps are subjected to the exclus ive jurisdiction of its fl ag
50 ibid 14, fn 54 (maki ng a brief referen ce to the content of A rticle 2(3) of th e MARPOL
Convention).
51 See n 7 (referr ing to the Danish go vernmental su lphur enforcem ent task force).
52
I6&chapt er=21&Temp=mtdsg 3&clang=_en>.
53 Davies et al (n 10) 15. T he study refer s to Article 233 of U NCLOS which dire ctly refers
to Article 42 (1)(a)(b) of UNCLOS.
54 Molenaar (n 42) 510.
55 Davies et al (n 10) 13. T his study cont ains no referen ce to the applica tion of Articl e 218
of UNCLOS.
56 Ringbom (n 4) 10–11.
57 See the simil ar discussion re garding energ y efficien cy measures an d Article 220 (5–6)
of UNCLOS, in Y Tanak a, ‘Regulation o f Greenhouse G as Emissions fro m Internationa l
Shipping an d Jurisdicti on of States’ (2016) 25 Rev iew of European , Comparative a nd
Internatio nal Environmen tal Law 333, 339.
58 See, e.g., C Per isteridou, T he Principle o f Legality in Euro pean Crimina l Law (Intersentia
2015) 6.
59 This includ es the referenc e by Molenaar (n 42) to Re gulation 11.6 of An nex VI as
representing an erga omnes obligation for enfo rcement of the sul phur regulatio n. This
would requir e that the sulphu r limit of Regulat ion 14 represent s an obligation ow ed to
the internat ional communi ty as whole, as st ated by the Inter national Cour t of Justice in
the Barcelona Traction case (Case Concerning the Barcelona Traction, Light and Power
Company Limi ted (Belgium v Spa in) (Judgmen t) [1970] ICJ Rep 3). This con clusion is not a
given. Perha ps, applying t he erga omnes principle to IM O regulation of gr eenhouse gas es,
particul arly carbon di oxide, might be a b etter star ting point for suc h environment al
reflectio ns on the applic ation of the erga omnes princi ple, as greenh ouse gas emissio ns
must be viewe d as a bigger overal l threat to the inte rnational com munity as a whol e
compared to su lphur dioxide p ollution, con sidering the gl obal adverse ef fects of clim ate
change. For mo re on this, also in te rms of applyin g the jus cogens principle , see J Fanø,
Enforcing International Maritime Legislation on Air Pollution through UNCLOS (Hart 2019)
Chapters 16–18.
60 Both the Inter national Cour t of Justice and t he Internation al Tribunal for the L aw of
the Sea can be c hosen as means of d ispute settl ement for the inte rpretation of U NCLOS,
cf UNCLOS (n 6) ar t 287(1). See Henriks en (n 8) 174.
|
283
FANØ
State whilst sai ling on the high seas, exc ept when otherwis e explicitly
provided for in inte rnational tre aties or in UNCLOS.61 Such explicit
exceptions are foun d in Part XII of UNC LOS, which gives no n-flag
States special r ights and obligatio ns to adopt and enforce regul ations
for protectio n of the marine environment ag ainst pollution.62
Here it is impor tant to em phasize that the term ‘pollution of the
marine environment’ under UNCLOS covers pollution which inter alia
can pr esent ‘hazards to human health’ a ccording to the definiti on in
Article 1(1)(4) of UNCLOS. 63 This means that the enforcement of
MAR POL Ann ex VI, wh ose mai n objec tive is to impro ve the co nditi ons
for human health by reduci ng air pollution , is covered by th e Part XII
regulations.64 This has also been state d by IMO’s Legal Committee.65
One of the codifi ed exceptions, refer red to in Article 92, i s Article
218(1) of UNCLOS which, unde r certain cond itions, allows po rt
States to exercise ex traterrito rial jurisdic tion over foreign vess els
on the high seas. Before ex amining this port State jurisdiction , the
obli gation s for fla g States to enforc e Annex VI should be consid ered.
3.1 | Flag State obligat ions for the protection of the
marine environment
Article 217 of UNCLOS con sists of eight paragr aphs providing lex sp e‐
cialis obligations fo r flag States to ensure the effec tive enforcement
of regulations for p rotection of the e nvironment, su ch as MARPOL
Annex VI.66 In particular, Article 217(1) stipulates that ‘[f]lag States
shall provide for t he effective enforcement of su ch rules, standards,
laws and regulations, irrespective of where a violation occurs’.67 Flag
Stat es that are par ty to Ann ex VI are there fore re quire d to effe ctive ly
enforce the 0. 50 percent sulphur li mit when it enters i nto force on 1
January 2020 , also when violations occu r on the high seas.68
It is in that context im portant to de fine what const itutes ‘effec‐
tive enforce ment’, as ‘effec tive’ is a ver y open-ended term. For t he
enforcement of the 2 020 sulphur limit , one of the most imp ortant
sanctionin g criteria is ensuring tha t all profits gained by th e infringe‐
ment are removed, e specially in light of the m assive potential savin gs
that such violati ons can give a shipowner. Therefore, f ines imposed
by a flag State shoul d always confiscate all savin gs. These fine s
should also cont ain a punitive element, which embodies other cr iteria,
such as being eff ective, proportion ate and dissuasive, and gradu ally
increasing in case of repeated infringements.69
Besides confi scating all achieved s avings, the punitive element of
the fine is an essential element for removing shipowners’ incentives
to be non-compliant. If a fine merely removes the savings from a vi‐
olation, or the supplementing punitive element is too diminutive, it
could lead to ship owners weighing the r isk of being caught up a gainst
the potential fi ne. Thus, a flag St ate fine must be dissuasive as th is
would mean that it is a lso effective, thereby me eting the obligations
of Article 217(1) of UNCLOS.70
Paragraphs 6–8 of A rticle 217 should also br iefly be highlighted in
this context, a s they relate to effe ctive enforcem ent. All suspec ted
violations, br ought to the attention of t he flag State by an offi cial writ‐
ten request fr om another State, m ust, according t o paragraph 6, b e
investigated an d, if the evidence s o warrants, b e prosecuted.71
Pursuant to par agraph 7, the flag State must promptly i nform the re‐
ques ting Sta te (menti oned in par agrap h 6) and the IM O of its enfo rce‐
ment72 and afterward s make the same infor mation available t o all
States.73 Importantly, a flag State, which is party to UNCLOS, cannot
excuse itself f rom complying wi th this obligatio n by referring to it s
national laws bar ring the disclosure of such infor mation, as stated by
Article 27 of the VCLT: ‘A par ty may not invoke the provi sions of its
internal law as jus tification for its f ailure to perform a t reaty.’74 Fin ally,
paragraph 8 r equires th at ‘[p]enaltie s provided for by the laws and
regulations of St ates for vessels flying their fla g shall be adequate in
severity to discourage violations wherever they occur’,75 for instance
a flag State’s nationa l legislation must allow f or discouraging san ction‐
ing which there by meets the condi tions of Articl e 217(1) of UNCLOS.76
3.2 | Port State jurisdi ction on the high seas for
discharge violations
Article 218(1) est ablishes an important leg al basis for port States to
exercise extr aterritorial ju risdiction over d ischarge violat ions com‐
mitted outs ide the State’s territory, for ins tance on the high seas77 or
in waters of anothe r State.78 Article 218(2–4) clarifies the overlapping
61 UNCLOS (n 6) art 92 .
62 ibid art 1(1)(4); s ee Dixon (n 13) 235.
63 Tanaka (n 57) 337. Tanaka argue s here that green house gas emiss ions can also fa ll
under the def inition of Ar ticle 1(4) of UNCLOS.
64 A Mihneva-Natov a, ‘The Relati onship betwe en United Nation s Convention on th e Law
of the Sea and th e IMO Convention s’ (2005) ://www.u n.org/depts/ los/nippo n/
unnff_progr amme_home/fello ws_pages/ fello ws_paper s/natova_0506_bulga ria.pdf> 6.
65 IMO, ‘Implic ations of the Uni ted Nations Conve ntion on the Law o f the Sea for the
Internatio nal Maritime O rganization’ L EG/MISC.8 (30 Ja nuary 2014) 57.
66 It has been asse rted that desp ite Article s 212 and 222 of UNCLOS ex plicitly refe rring
to adoption an d enforcement of l egislation on ai r pollution, f or instance by fl ag States,
these provi sions offer no ins ight or guidance o n how this is to be ach ieved, nor do they
convey any extr aterritoria l jurisdicti on for non‐flag St ates to enforce. Se e Molenaar (n
42) 512; Ringbom (n 4) 8–9.
67 UNCLOS (n 6) art 217(1).
68 This obligati on is supporte d by MARPOL (n 1) ar t 4(4) which state s that all penalt ies
must be ‘adequ ate in severity t o discourage vio lations of the pr esent Conventi on and
shall be equa lly severe irres pective of whe re the violatio ns occur’. This als o applies to
violations o f the annexes to th e MARPOL Conven tion (includi ng Annex VI), acco rding to
ibid art 1(2).
69 These prin ciples are also d irectly sta ted in the Sulphu r Directive (n 31) ar t 18.
70 A dissuasive fi ne also fulfil s the criteria se t out in MARPOL (n 1) ar t 4(4).
71 A flag State cou ld receive such wr itten inform ation as a result of a P SC in a foreign
State or a detec tion made on th e high seas by a snif fer attached t o a drone or plane.
72 This enforcem ent by the flag St ate must be effecti ve pursuant to UN CLOS (n 6) art
217(1).
73 The IMO could f acilitate sha ring this inform ation with all St ates by making th e received
informatio n available thro ugh its GISIS d atabase.
74 VCLT (n 16) art 27.
75 UNCLOS (n 6) art 217(8) .
76 Thereby al so meeting the on us of MARPOL (n 1) ar t 4(4).
77 A Pozdnakova, Criminal Jurisdiction over Perpetrators of Ship‐source Pollution (Martinus
Nijhoff 2012 ) 153.
78 SA Meese, ‘W hen Jurisdic tional Intere sts Collide: I nternational , Domestic an d State
Efforts to P revent Vessel Sou rce Oil Pollutio n’ (1982) 12 Ocean Develo pment and
Internatio nal Law 71, 149.
284
|
FANØ
jurisdictio n that may arise if a discharge violatio n takes place within
another State’s ter ritory as both that (coa stal) State and the p ort State
will have jurisdic tion over this violation. As t he focus of this article is
on enforcement of the 0.50 percent sulphur limit of MARPOL Annex
VI on the high seas, Article 218( 2–4) will not be addressed i n further
detail.79 The overlapping j urisdiction betwee n a port State and a flag
State for a violatio n taking place on the high sea s is resolved accord‐
ing to Article 2 28(1), which will be examined in S ection 4.
Article 218(1) stipulates:
When a vessel is volunta rily within a por t or at an off‐
shore terminal of a State , that State may underta ke in‐
vestigations and , where the evidenc e so warrants,
institute proceedi ngs in respect of any d ischarge from
that vessel outsid e the internal waters, territorial sea or
exclusive economi c zone of that State in violation of ap‐
plicable international rules and standards established
through the competent international organization or
general diplomatic conference.80
Here, four initial conditions are found for port States th at wish to
use Article 218 (1). First, the fore ign ship must volunt arily call upon a
port or off shore terminal of the por t State. Second, the p ort State may
only initiate leg al proceedings where the ev idence so warrants. Thi rd,
the violation mu st have taken place outside the p ort State’s own wa‐
ters. And fin ally, an international accepte d rule or standard mus t be vi‐
olat ed. If the se condi tions ar e met, a por t State can enfor ce a discha rge
violation tak ing place outside its w aters, including on the h igh seas.
Regulation 14.1.3 of M ARPOL Annex VI, e ntailing the 2020
global sulphur l imit, is an interna tional accepted r ule. A violation
hereof on the high s eas could, in prin ciple, be enforce d through
Article 218(1) if a ship vo luntary goes to po rt and is proven non‐com ‐
pliant.81 Recalli ng the wording of Ar ticle 218(1), this enforce ment
presupposes that infri ngements of the 0.50 percent sulphur limit can
be deemed a disch arge violation. Establi shing that emissions of sul‐
phur can be rega rded as a discharge is th erefore essential. N umerous
factors sug gest that this is conceivab le.
Discharge violations are often considered violations that result in
oil, chemicals or other liquid substances being released or escaping
from a ship into the se a,82 such as provided for in Ar ticle 42(1)(b) of
UNCLOS. Sulphur particles which are released into the atmosphere
from the exhaus t gas of a ship, are norm ally referred to as e mis‐
sions.83 Em issions can , however, fall und er the term ‘disc harge’ of
Art icle 218(1 ).
Initially, it should be u nderlined t hat UNCLOS does n ot define
‘discharge’. So, to clarify the scope and conten t of the term, it must
be interpreted i n accordance with the basic cust omary principles of
international l aw for the interpretat ion of treaties codif ied in Articles
31 and 32 of the VCLT.84 To that end, it should be noted th at the
term ‘discharge’ in Article 218(1) is intended to be applied and under‐
stood in the bro adest possibl e sense, as the provision refers to any
discharge. Ar ticle 218(1) is the only ar ticle in UNCLOS wh ere the
term is used in such a n open‐ended context, for i nstance compared
to Article 220 (5–6) where the disch arge must – as previ ously dis‐
cussed – cause (or t hreaten to cause) sig nificant poll ution or major
damage. That such emphasis should be placed on the word ‘any’
when determining the scope of the following word when interpret‐
ing in accordance wi th Article 31 of the VCLT correspon ds with how
the Court of Justice of the EU interpret ed the term ‘any resources’ in
Article 220 (6) of UNCLOS in the 2018 Bosphorus Queen case, in
which it stated:
It must be obser ved that Article 220 (6) of t he Montego
Bay Convention refer s to damage caused or the threat of
damage to ‘any’ resource s of the territorial sea or the EEZ
of the coastal State. Th erefore, that provis ion must be
interpreted broadl y in that regard, which is clear f rom its
wording, and must not be understood as excluding cer‐
tain resources fro m the scope of that provision.85
The use of the word ‘any’ thus opens up the applicat ion of the
broadest possible meaning of the word ‘discharge’ when determining
the scope of Ar ticle 218(1).
When interpret ing a word or term in accordance with t he VCLT,
Article 31 ta kes precedence over A rticle 32 as the l atter clearly
states it offers ‘supple mentary means of interpretati on’ compared to
the former. Arti cle 31 therefore for ms the basis for the in terpreta‐
tion, which cor responds with how the Cour t of Justice of the EU in‐
terpreted Ar ticle 220 of UNCLOS in the aforement ioned Bosphorus
Queen case. The Cour t assert ed that: ‘ In order to interpr et the prov i‐
sions of the Montego Bay Convention it is necessary to refer to the
rules of customa ry internatio nal law reflecte d by Article 31 of the
Vienna Convention.…’86
Article 31(1) of the VCLT inter alia stipulates that the interpreta‐
tion must be ‘in accordance with the ordinary meaning’ of the treaty,
word or term. The o rdinary meaning of a word or ter m can be found
in di ctionaries and thesa uruses. He re, the ordinary meaning of the
word ‘discharge’, using the English ver sion of UNCLOS,87 can be
79 For more on overl apping jurisd iction betw een a coastal an d port State und er UNCLOS
(n 6) art 218(2–4), see Fa nø (n 59) Chapter 10.
80 UNCLOS (n 6) art 218(1).
81 A violation on t he high seas pri or to going into por t could for examp le be proven by a
sniffer at tached to a dron e used in combinat ion with fuel sa mpling during a P SC,
especiall y recalling th e effect of the c arriage ban whic h enters into for ce in March 2020.
82 Tanaka (n 15) 296. See al so A Kanehara, ‘ Environment al Protection o f Ocean and
Flag-state Ju risdiction’, 8th Conf erence of SCA, Qingd ao, China (2008)
go.jp/en/sca/act iv ities/ confe rence s/conf_8_proje cts/pdf/o1.pdf> 5.
83 See, e.g., MA RPOL (n 1) Annex VI , Regulations 14. 3 and 14.4.
84 Internation al Law Commissi on, ‘Fragment ation of Interna tional Law: Dif ficulties
Arising fro m the Diversifi cation and Ex pansion of Inter national Law, Rep ort of the Study
Group of the In ternational L aw Commission on i ts 58th Sessio n’ UN Doc A/CN.4/L .682
(13 April 2006) 8 9.
85 Case C-15/17, Bosphorus Queen, ECLI:EU:C:2018:557 par a 89.
86 ibid para 67.
87 The English ve rsion of UNCLOS is on e of the confirme d authentic or iginal texts , cf
UNCLOS (n 6) art 320 , which should fo rm the basis of an in terpretatio n, cf. VCLT (n 16)
art 33(2).
|
285
FANØ
derived from, f or instance, th e Oxford, Ca mbridge and Mer riam‐
Webster’s online dictionaries. The definitions discussed below are
limited to those relating to emiss ions, as the term ‘discharge’ for obvi‐
ous reasons can a lso encompasses other act ions such as the pouring
or spilling of liquids, etc. The dictionaries define ‘discharge’ as inter alia
to: ‘[a]llow a liquid, gas, or other substance to flow out’ or as to ‘emit’
a substance. The term is exemplified with ‘carbon emission s’, ‘ vehicles
discharging exhaust fumes’ and ‘chimney discharges smoke’.88 Based
on these defin itions – referring to the te rm as something encomp ass‐
ing emissions, t he release of gase s and the release of f umes and
smoke coming from ve hicles and chimneys – an inter pretation of the
term ‘discharge’ in Article 218(1) of UNCLOS l eads to it covering
emissions from sh ips, for example sulph ur emissions emitted a s gas in
the smoke and fume s from the ‘chimney’ (funnel) of a ship.
A ship’s emissions of sulphur, and other regulated airborne pol‐
lutants such a s nitrogen dioxide , are therefore cover ed by Article
218(1), allowing port St ates to exercise ex traterritori al jurisdictio n
over viol ations of th e 0.50 percent sulphur lim it committed by for‐
eign ships on the hig h seas. This conclusion is sup ported by how the
term ‘discharge’ is de fined in other relevant in ternational legislatio n,
such as Artic le 2(3) of the MARPOL Conventi on,89 and how the term
is already a pplied in Regulation 12 of MARPOL Annex VI. The
MARPOL Convention defines ‘discharge of harmful substances’ in
Article 2(3)(a–b), wit h paragraph 3 (a) stating what the t erm covers,
and paragrap h 3(b) providing what the term doe s not cover, namely
‘dumping’.90 Article 2(3)(a) inter alia defines dischar ge as ‘any release
howsoever caus ed from a ship and inc ludes any escap e, disposal,
spilling, leaking, pumping, emitting or emptying’.91 The mentioning
of disposal, spil ling, leaking , pumping and emp tying refers to t he
‘classical’ understandin g of the term. The reference to ‘emitt ing’ is
however extremely relevant when determining if the term can cover
emissions, as emi tting is a verb conjugated fro m the word emit. The
word emit can be con jugated into diff erent forms whic h – besides
emitting – als o encompasses em issions. This is sup ported by how
the term is defin ed and used in dictionarie s, for instance once again
using the interp retational principl es of Article 31(1) of the VCLT. The
Oxford, Cambridge and Merriam‐Webster’s online dictionaries de‐
fine ‘emitting’ (‘emit’) as to: ‘[p]roduce and discharge something, (es‐
pecially gas or rad iation)’, and exem plify it w ith ‘even the best cars
emit carb on dioxide’ and ‘chimneys emitting thick, black smoke’.92
Thus, t he definition of ‘discharge’ in Article 2(3)(a) of t he MARPOL
Convention, thr ough a reference to t he term emitti ng, also covers
emissions released from ships.
The definitio n of discharge in the MARPOL Co nvention also ap‐
plies to the annexe s of the Convention , pursuant to Ar ticle 1(2) of
the Convent ion. This is emphasized by how MARPOL Annex VI al ‐
ready uses the term ‘discharge’ to describe the release of emissions
in Regulation 12 relating to the release of ozone‐depleting sub‐
stances (ODS). Re gulation 12.7 stipulates that a shi p must carry an
‘ozone-depleting substance record b ook’ in case inform ation of any
release of ODS into th e atmosphere is logge d by the ship. Regulation
12.7.3 specifies that th is record book shal l include informa tion on
the ‘discharge of ozone-depleting substances to the atmosphere’.93
This indisputably establishes that the release of emissions regulated
in MARPOL Ann ex VI, including sulphu r emissions in Regulation 14,
can be describ ed as the discharge of emiss ions into the atmosphere .
This again stre ngthens and su pports th e conclusion that A rticle
218(1) of UNCLOS, through an i nterpretation follo wing Article 31 of
the VCLT, covers a ship’s release of emissio ns.
This extrate rritorial juris diction allows p ort States to ins tigate
legal proceed ings against the ship(owner) a nd impose a fine.94 Such
a fine can be covere d by the port Stat e utilizing any previ ously
posted economic security (bail).
4 | RESOLVING THE OVERLAPPING
JURISDICTION BETWEEN A PORT A ND
FLAG S TATE IN THE HIGH SEAS FOR THE
SULPHUR REGULATION
A port State’s juris diction on the h igh seas pursua nt to Article
218(1), for example wit h respect to violati ons of th e 0.50 percent
sulphur limit, c an overlap with the flag State’s pr eviously described
jurisdictio n under Arti cle 217. Article 228(1) of UNCLOS has the
potential to reso lve the problem of su ch overlapping jur isdictions.
Furthermor e, Article 228 (1) is also relevant for re solving overlap ‐
ping jurisdic tion between a flag State (pur suant to Article 217) and
a coastal State (p ursuant to Article 220) for vi olations occurring in
the EEZ of the lat ter.95 This issue will, however, not be ex amined
further.96
The applicat ion and scope of Ar ticle 228 is clarif ied in Artic le
217(4), which asserts th at flag States must respect p ort and coastal
States’ rights:
88 See ://en.oxfor ddict
ionar ies.com/thesa urus/disch arge>;
sh/disch arge?q=disch arge>; and
arge>.
89 Mihneva-Nat ova (n 64) 16.
90 D Bodansky, ‘Pr otecting the M arine Environm ent from Vessel So urce Pollution :
UNCLOS III and Beyon d’ (1991) 18 Ecology Law Quarterl y 719, 729.
91 MARPOL (n 1) ar t 2(3)(a).
92 See ://dicti onary.cambr
idge.org/dicti onary/ engli sh/emit?q=emitting>; and
dicti onary/ emitting>.
93 MARPOL (n 1) Ann ex VI, Regulati on 12.7.3.
94 According to UN CLOS (n 6) art 230, a po rt State would o nly be able to sanc tion with a
monetar y penalty (i.e . a fine), as it concer ns a violation wh ich took place on t he high seas.
See, e.g., Tanak a (n 15) 295.
95 Such matter s of overlappin g jurisdictio n between a flag S tate and anothe r State are
usually sol ved by diplomati c and politica l ad hoc agreeme nts, as stated b y Kate Lewins:
‘The result , more often th an not, is that the re might be multi ple [countries] en titled to
claim jurisd iction over a par ticular crim inal act, bas ed on the flag and l ocation of the sh ip
and the natio nalities of the p eople involved . [Which count ry will take the l ead] may well
end up being on e negotiated thr ough diplomat ic channels, la rgely based on p ragmatism.’
As quoted in Ho use of Represen tatives, Stan ding Committ ee on Social Poli cy and Legal
Affairs, T he Parliamen t of the Commonwea lth of Austral ia, ‘Troubled Water s: Inquiry
into the Arra ngements Sur rounding Crim es Committe d at Sea’ (2013) 24.
96 As mention ed earlier, the que stion of a coast al State’s overlap ping jurisdic tion with a
port State’s j urisdiction i s resolved thro ugh UNCLOS (n 6) art 218 (2–4).
286
|
FANØ
If a vessel commits a vi olation of rules and s tandards estab‐
lished through the competent international organization
or general diplomatic conference, the flag State, without
prejudice to arti cles 218, 220 and 228, shall provide for
immediate investigation and where appropriate institute
proceedings in respect of the alleged violation irrespec‐
tive of where the violati on occurred or where the poll ution
caused by such viola tion has occurred or has be en spotted.
Given its len gth and detailed cont ent, Article 228(1) nee ds to be
dissected for i ts analysis. Th e provision consis ts of four sentence s.
The first sen tence contains the main rule a nd two exceptions.97 The
second sentence e laborates on th e application of t he main rule by
setting obli gations, which must be met by t he flag State.98 The third
and fourth se ntences provide procedu ral requirements tha t must be
met by the non‐flag St ate (i.e. coastal or port Stat e) if the flag State
rightfully invo kes the main rule.99
The main rule of Ar ticle 228(1) specifie s that if a non‐flag State ins ti‐
gates legal proc eedings, for instance a po rt State enforcing a high seas
violation of Regulation 14.1.3 of MARPOL Annex VI, it can be required
to suspe nd these pr oceeding s if the ship’s fl ag State brin gs ‘corres pond‐
ing charges … with in six months of the date on whi ch proceedings were
first instituted’.100 Th is means that a flag State, in order to invo ke this
main rule, must f ulfil two condition s: (i) to make the request for s uspen‐
sion within six months af ter having received a notif ication from the por t
State; (ii) to bring corresponding charges for the same violation.101
Regarding the f irst condition, the s ix‐month deadline shoul d be
understood i n light of the obligation found in A rticle 231 for non‐
flag States to prom ptly inform the flag State of any insti gated in‐
vestigations a nd proceedings. S ome flag States can be ve ry passive
when it comes to enforcement.102 Such an inactive approach might
lead to flag State s not reacting in time, for ins tance within the six‐
month deadlin e, which would enable the non‐fla g State to finalize
its legal proc eedings and imp ose a fine, for exa mple a port Stat e
fine for a violation of the 0.50 p ercent sulphur limit. A fl ag State,
which reacts within the six‐month deadline, must also meet the
second conditi on for invoking the ma in rule, by bringi ng corre‐
sponding char ges. The flag Stat e’s prerogative to susp end pro‐
ceedings with in six months is therefore not a car te blanche option.
The flag State mus t assure the port State of it s intentions to sanc‐
tion the same discharge violation.
Although pen al systems differ from jur isdiction to jurisdict ion,
it should be pres umed that the flag State is re quired to ensure that
such violations a re effectively enfor ced pursuant to Artic le 217(1),
wherefore a corresponding charge for a violation of Regulation
14.1 of Annex VI on the high seas mus t, at a mini mum, result in a
fine which remove s all savings and i mposes a dissuasi ve punitive
element.
Moreover, Articl e 228(1) has a follow‐up proce dure for en‐
suring that the f lag State actual ly brings corre sponding char ges.
The second sente nce of Article 2 28(1) states that the f lag State
must make a full dos sier of the case and m ake the records of the
proceedings av ailable for the no n‐flag State that susp ended its
proceedings . That non‐flag State s hall, after rece iving this infor‐
mation, termin ate its proceedi ngs and release a ny posted eco‐
nomic securit y or bail on the ship accordi ng to the third and fourt h
sentences of the provision.
Consequentl y, a n implicit right is conferred here o n the non‐
flag State to exami ne the provided dossiers a nd records from the
case to confirm t hat the flag State br ought correspo nding
charges and these resulted in effective enforcement. Should the
non‐flag State dee m that these obligations were not f ulfilled, or
if the flag State neve r provided thes e mandatory do ssiers and
records, a revers e conclusion of Ar ticle 228(1) allows th e non‐
flag State to resum e its suspende d proceedings , and impose its
own effecti ve fine, using any posted economi c security to cover
this fine.103
The initial conc lusion here is that a flag State ca n assert primary
jurisdictio n over a vio lation of MARP OL Annex VI on the hig h seas
by invoking the main r ule of Article 228(1). Crucial ly, this initial con‐
clusion on appli cation of the main rule is subjec t to two exceptions,
which enable no n‐flag States to deny a f lag State’s request for sus‐
pension despit e the flag State ful filling all the me ntioned requir e‐
ments for invoki ng the main rule. T he first excepti on relates to
violations that h ave caused major da mage to a coastal St ate which
allows it to deny a flag St ate’s request for suspensio n. Evidently, this
exception is not rele vant for the discussion relating t o enforcement
of the 2020 sulphur l imit, as it is unlikel y that a single violat ion of
the sulphur regulation can result in a tangible instance of pollution
constituting m ajor damage to a coas tal State. Sulph ur pollution
97 The first se ntence of UNCLOS , ibid, art 228(1) re ads: ‘Procee dings to impose p enalties
in respect of a ny violation of ap plicable laws a nd regulation s or internation al rules and
standard s relating to the p revention, red uction and con trol of pollutio n from vessels
committed b y a foreign vessel b eyond the terri torial sea of the St ate institut ing
proceedin gs shall be suspe nded upon the t aking of procee dings to impose p enalties in
respect of co rrespondin g charges by the fl ag State within si x months of the date o n
which proce edings were fir st institute d, unless thos e proceedings r elate to a case of
major damage t o the coastal St ate or the flag Stat e in question ha s repeatedly
disregarde d its obligati on to enforce eff ectively the a pplicable int ernational ru les and
standard s in respect of vio lations commi tted by its vess els.’
98 The second se ntence of art 228 (1), ibid, reads: ‘ The flag State sh all in due course m ake
available to t he State previou sly institut ing proceedin gs a full dossier of t he case and the
records of the p roceedings , whenever the fl ag State has reque sted the suspe nsion of
proceedin gs in accordance w ith this artic le.’
99 The third and fo urth senten ces of art 228(1), ibi d, read: ‘Whe n proceedings i nstituted
by the flag Stat e have been broug ht to a conclusion , the suspended p roceedings s hall be
terminated . Upon payment of co sts incurre d in respect of su ch proceeding s, any bond
posted or oth er financial se curity provi ded in connect ion with the susp ended
proceedin gs shall be relea sed by the coast al State.’
100 For insta nce, port Stat e proceedings i nstigated acc ording to art 218(1) of U NCLOS,
ibid.
101 Tanaka (n 15) 295.
102 Flag States t hat continual ly do not ensure th at vessels under t heir flag live up t o
international safety and environmental regulations and standards, established during
PSCs, are lis ted on a ‘blackli st’. The Paris an d Tokyo Memorand a of Understan ding
manage such wh ite‐, grey‐ and bla cklists. Se e /w ww.paris mou.org/deten
tions‐banni ng/white‐grey‐and‐black‐list> and www.tokyo‐mou.org/inspe
ctions_deten tions/ NIR .php>.
103 Althoug h, most detenti ons during PSC s are used to rect ify deficien cies, Artic le 226(1)
(b) of UNCLOS allow s port States to a lso detain non ‐compliant shi ps until an adequ ate
economic se curity or bail i s posted.
|
287
FANØ
contributes, a s stated earlie r, to overall air pollutio n and the wors‐
ening of air quality.
The second except ion of Article 228(1) allows a n on‐flag State to
deny a f lag State’s reque st for suspensi on if ‘the flag State in ques‐
tion has repeate dly disregarded its oblig ation to enforce effectivel y
the applicab le international rules and st andards in respect of viola‐
tions committe d by its vessels’.104 Hence, this exc eption could allow
a port State to de ny a flag State’s request for suspe nsion of its insti‐
gated pr oceedings for a violation of the 0 .50 percent sulph ur limit,
provided the fl ag State in questi on repeatedly ha s disregarded it s
obligation to enforce Regulat ion 14 of Annex VI effectively. Even if
the flag State me ets all mentioned condition s for invoking the main
rule.
‘Repeatedly ’ is a very o pen-ended term that is not defined in
UNCLOS. It has been suggested that the term shou ld refer to an
above‐average recor d of deficiencies d etected durin g PSCs and of
lack of enforcemen t pursuant to Article 217.105 Using this appro ach,
it could be calcu lated on an individual flag State ba sis. To some ex‐
tent, it could the reby use the same p rinciples use d to calculate
whether a flag St ate is considered a white‐, grey‐ or black listed flag
State relating to P SC.106
What constitut es a disregard of it s obligation to enfo rce effec‐
tively must inter alia refer to Ar ticle 217107 and the obligati ons of that
provision for the f lag State to enforce all violations ef fectively irre‐
spective of where they occur and to inform th e IMO an d all ot her
States of this enforcement.108 Thus, if a fla g State, after 1 Jan uary
2020, repeated ly disregards its oblig ation to effectivel y enforce vio‐
lations of Regulation 14 of MARPOL Annex VI109 it wo uld lose its
right to invoke the main r ule of Article 228(1). Por t States could deny
any suspension re quest by the flag State by referri ng to the second
exception of the prov ision, even thoug h the flag State req uest is
made within six m onths and promises the invo king of corresponding
charges.110
5 | CONCLUSIONS
The strengthe ned 0.50 percent sulphur limit can from 2020 onwards
potentially prev ent hundreds of thousands of peo ple annually from
experiencin g a premature death and milli ons of children from devel‐
oping asthma. Howeve r, strong enforcement of this regulation is key
to achieve these be nefits, inc luding when viol ations take place on
the high seas. Such enforcement not only relies on the development
of technologies f or detecting violations, b ut also on detected viola‐
tions being met wi th dissuasive fines.
According to Ar ticle 217 of UNCLOS, the flag State is oblig ed to
ensure effec tive enforcement of h igh seas violatio ns of Regulation
14.1.3 of MARPOL Annex VI111 and to infor m the IMO and other
States of this eff ective enforcem ent. Port Stat es can also assume
jurisdictio n over such violations on th e high seas according to Ar ticle
218(1) of UNCLOS, since the term ‘dis charge’ in the p rovision argu‐
ably covers emissi ons.112
The overlapping h igh seas jurisdic tion betwee n flag and por t
States over such vio lations can be re solved in accordan ce with
Article 228 (1), which allows the flag State, wit hin six months, to sus‐
pend a port St ate’s initiated proceedings . The flag State must subse ‐
quently prove the i nstigation of corres ponding charges an d effective
enforcement to the p ort State by sending a full dossie r of the case
and records of the p roceedings. O therwise, t he port State c an re‐
sume the suspen ded proceedin gs. Further, a por t State can deny a
request for sus pension in accordance with the se cond exception of
Article 228 (1) if a flag State repeate dly has disregard ed its Arti cle
217 obligations to effe ctively enforce violation s of Regulation 14 of
Annex VI and info rm other States thereof.
This article h as argued that Art icle 218(1) of UNCLOS, along with
Article 228 (1), can provide port State s with the necessar y extraterri‐
torial jurisdic tional basis for enfor cing violations of Regula tion 14.1.3
of MARPOL A nnex VI which occur o n the high seas. Th is legal basis
allows port St ates to impose fines whic h remove all savings and con‐
tain a punitive element.
Although this a rticle focuses on the enfo rcement of the sulphur
regulation of MARPOL Annex VI, the principl e and rule s described
here will presumably be applicable when considering t he enforce‐
ment of other measu res on critical i ssues, such as gre enhouse gas
emissions.113 Existing and future regulations of emissions from ships
must be effec tively enforced to achieve the in tended human health
and environmen tal benefits. UNCLOS is key fo r ensuring this.
ORCID
Jesper Jarl Fanø https://orcid.org/0000‐0001‐6307‐3176
104 UNCLOS (n 6) ar t 218(1).
105 B Kwiatkowska e t al, Internation al Organizati ons and the Law of th e Sea 1996 (Brill 1996)
56.
106 See
wgb‐list‐and‐excess‐factor‐calcu lator >.
107 Bodansk y (n 90) 742–743.
108 The oblig ation for the flag S tate to notify t he IMO and other St ates pursuant to A rticle
217(7) concern s situations whe re a flag State’s inve stigation an d proceedings o riginated
from a writt en request fro m another State p ursuant to Art icle 217(6).
109 This would b e the case if a flag St ate refuses or n eglects to imp ose fines, whi ch
confiscate a ll savings achi eved from using no n‐compliant fu el and impose a di ssuasive
punitive ele ment, or if it neg lects its ob ligation to subs equently info rm the IMO and
other States o f its effecti ve enforcement .
110 For a more thor ough analysis of t he applicati on of Article 22 8(1) on the enforce ment
of MARPOL An nex VI, in part icular pert aining to the seco nd exception, s ee Fanø (n 59)
Chapter 11.
111 Such flag St ate enforcement i s also fulfilli ng the requirem ent of MARPOL (n 1) ar t 4(4).
112 It is recall ed that the appl ication of UNCLO S (n 6) art 218(1) is condit ioned, inter ali a,
by the foreign s hip voluntar y going into a port o r offshore ter minal in the por t State.
113 See also Tanaka (n 57 ).
288
|
FANØ
Jesper Jarl Fanø is Senior Regulatory Af fairs Manager at Maersk
and external lec turer in Public International Law at the Facul ty of
Law of the Univer sity of Copenhagen. H e has previously worked
with impl ementation and enforcement of MARPOL Annex VI at
the Danish Environ mental Protection Agenc y and at the Danish
Maritime Auth ority. This art icle was presente d in Copenhagen
at t he second TRAMER EN Internati onal Confer ence on Ocean
Environmenta l Governance in Septe mber 2018. The autho r
wants to thank t he participants to the conf erence for invaluable
feedback, i n particular Beat riz Martinez Rome ra. The author
wishes to dedic ate this article to Esth er and Arendse.
How to cite this arti cle: Fanø JJ. Enforcement of the 2020
sulphur limit for marine fuels: Restrictions and possibilities
for port State s to impose fines under UN CLOS. RECIEL.
2019;28:278–288. http s ://doi. org/1 0.1111/re el.12 306
To continue reading
Request your trial