UNCLOS

The purpose of this image (picture) is to underline that this website is focused on informing about the United Nations Convention on the Law Of the Sea (UNCLOS) and how the provisions of this convention (especially those found in PART XII of UNCLOS regarding port State, flag State and coastal State jurisdiction for enforcement of environmental regulation, such as articles 217, 218, 220 and 228) can be used to effectively enforce international maritime rules for protection of the environment and climate, adopted by the UN’s International Maritime Organization (the IMO). Especially, focusing on UNCLOS allowing for port States to enforce IMO rules on GHG, irrespective of where the emission violations occur. For example, through Port State Control (PSC). This is relevant for current adopted GHG rules by the IMO, including CII, SEEMP, EEDI and EEXI but also in relation to the adoption of a “fuel standard” following the IMO’s revised GHG strategy. It also analysis how UNCLOS applies to EU regulation addressing GHG from shipping, implemented as part of the EU’s “Fit For 55” legislative package, including adoption of the FuelEU Maritime, including shipping in the Emission Trading Scheme (ETS maritime) and setting reduction goals for shipping in the third version of the Renewable Energy Directive (REDIII). The website also discusses, through the analysis of the ILC texts and ICJ caselaw, whether a Fuel Standard rule for not allowing GHG emissions, could be considered the first accepted peremptory environmental norm of a jus cogens character. This would have immense consequences in terms of enforcement, for example by not only conferring jurisdictional rights for all States to enforce following the principle of Universal Jurisdiction, but also by obligating all States (including flag States) to enforce due to such a “jus cogens” norm due to the principle of Erga Omnes. Thus, all States would, irrespective of them being party to international (IMO) legislation and/or UNCLOS, be subject to State Responsibility under the convention of Article on Responsibility of States for International Wrongful Acts (ARIWA) if falling to do so. The website also has blog where posts are made about developments in relation to UNCLOS, for example the BBNJ agreement, Seabed mining through the International Seabed Authority, ITLOS decisions and advisory opinions, including on climate. All this, and more, is also described in my book “Enforcing International Maritime Legislation on Air Pollution through UNCLOS” which is also promoted on this website and links are made to where it can be bought, e.g. at Amazon and Hart Publishing from Oxford. My background for making the conclusions on this website and writing the book (“Enforcing International Maritime Legislation on Air Pollution through UNCLOS”) stems from both working with this subject matter at different Danish authorities (Environmental Protection Agency and the Maritime Authority), but also from teaching International Law (which includes Law of the Sea and UNCLOS and ARSIWA and Jurisdiction and Jus Cogens and Erga Omnes) at Copenhagen University for over 10 years as an associated professor. I have also written articles on this and contributed with chapters for other legal works.

Provisions of Part xII of UNCLOS on enforcement of IMO GHG rules (MARPOL Annex VI)

This page lays out how the provisions found in Part XII of UNCLOS for protection of the environment, focusing on articles 217, 218, 220 and 228, can form the basis for effective enforcement of IMO rules on GHG found in MARPOL Annex VI (EEXI, EEDI, CII)) and in a fuel standard as set out in the IMO’s GHG Strategy)

Art. 92 of UNCLOS reiterates a basic principle of the law of the sea, often referred to as the flag state principle. This principle stipulates that flag States have an unimpeached jurisdiction on the high seas over vessels flying their flag. This can, nonetheless, present a problem if the flag State is reluctant to probably enforce violations of international (IMO) regulations.

The undisputed nature of the flag State’s jurisdiction might have certain merits when dealing with high seas enforcement of different international regulations on safety, navigation, manning or labor conditions. However, UNCLOS provides in its twelfth chapter (Part XII) some exceptional possibilities for non-flag States to enforce international environmental legislation on the high seas if a flag State fails do so.

The book (“Enforcing International Maritime Legislation on Air Pollution through UNCLOS”) lays out that some of these exceptions to the flag State principle, found in Part XII of UNCLOS, provide the necessary jurisdiction to enable port States to impose fines that adequately sanction violations of international (IMO) emission regulations on GHG and sulphur, also for violations that occur on the high seas.

Initially, it should be stated that the term pollution of the marine environment under UNCLOS covers pollution which inter alia can present “…hazards to human health…” according to the definition in article 1 (1) (4) of UNCLOS.

This means that the enforcement of GHG (and SOx, NOx, ODS’ and VOCs) in MARPOL Annex VI, which main objective is to improve the conditions for human health by reducing air pollution, is covered by the Part XII regulations. This assumption also been confirmed by IMO’s Legal Committee and ITLOS in Advisory opinion 31 of 24 May 2024 regarding impact of Climate Change on Small Island States which clearly establishes that the term “Pollution of the marine environment” in art. 1 (1) (4) of UNCLOS – and thus covering the scope of Part XII – includes pollution by GHG emissions.

It should be noted that the relevant special provisions of Part XII of UNCLOS confer special obligations and rights for enforcing environmental regulations. The special enforcement and notification obligations for flag States stipulated in article 217 of UNCLOS is examined, followed by the extraterritorial right for port States to enforce on the high seas pursuant to article 218

This is primarily based on an interpretation of the discharge-term used in article 218 of UNCLOS to encompass emissions. An interpretation which applies the general recognized principles of international law codified in article 31-32 in the Vienna Convention on the Law of Treaties (VCLT) supported by references to how the term is defined and used in other international maritime regulations, for example in the MARPOL Convention itself and in Annex VI of this convention (MARPOL).

Other conditions must be met to have art. 218 apply, which the book describes in full.

Finally, article 228 (1) of UNCLOS clarifies how the overlapping high-seas jurisdiction between flag and port States in article 217 vs. 218 is resolved.

In short, article 228 (1) has a main rule which allows the flag State to, within six months, request suspension of a port State’s initiated proceedings. The flag State must subsequently prove the instigation of corresponding charges and effective enforcement to the port State by sending a full dossier of the case and records of the proceedings. Otherwise, the port State can resume the suspended proceedings.

Further, a port State can deny a request for suspension in accordance with the second exception of article 228.1 if a flag State repeatedly has disregarded its article 217-obligations to effectively enforce violations of an international regulation, for example MARPOL Annex VI and/or to inform hereof.

For more information on how the above is laid out in the the different chapters in the book “Enforcing International Maritime Legislation through UNCLOS” see here: Book About UNCLOS