Flag State, Coastal State And Port State Jurisdiction In Preventing Vessel Sourced Marine Pollution

Author: LawSphereX

Category: Environmental Law

Published: 2026-08-23T19:50:14.811356+00:00

Updated: 2026-08-26T17:11:26.901+00:00

FLAG STATE, COASTAL STATE AND PORT STATE

JURISDICTION IN PREVENTING VESSEL SOURCED

MARINE POLLUTION

Mehak Batra & Dr. M. Imran, Ph.D. Scholar, School of Law and Constitutional Studies, Shobhit Institute of Engineering & Technology (NAAC ‘A’ Accredited Deemed to be) University, Meerut & Professor

ABSTRACT

The marine environment's quality is deteriorating at a rapid pace, and there is a growing environmental awareness that the oceans are no longer an inexhaustible resource. Consequently, a complex system of integrated oceans policies has been established, as well as an international legal framework for the protection and preservation of the marine environment from vessel-source pollution. The United Nations Convention on the Law of the Sea 1982 and multilateral regulatory conventions administered by the International Maritime Organization comprise the international legal framework. Large-scale vessel source pollution incidents are primarily caused by ineffective flag, coastal, and port State jurisdiction. Flag States are legally obligated to guarantee that their vessels adhere to international law, regardless of their location, based on the international legal framework.

Foreign-flagged vessels that are operating in the high seas, exclusive economic zone, territorial sea, special pollution prevention areas, and archipelagic waters are subject to the jurisdiction of coastal states. The rights of passage of the vessels should not be unduly impeded by the exercise of this jurisdiction. Additionally, port States are allowed to inspect vessels that are voluntarily entering their ports and internal waters to enforce internationally recognized and generally accepted standards for the preservation of the marine environment. Keywords: Vessel Sourced Pollution, Marine Environment, Flag State, Port State, Coastal State

States typically have wide-ranging authority to establish rules and regulations within their very own boundaries, including their territorial waters and internal waters. Therefore, when it comes to controlling marine pollution, states are usually allowed to establish their own discharge standards for their inner waters and territorial seas, with the exception of ships having the right to innocent passage1. International law should clearly state that countries have the authority to make laws and regulations beyond their territorial waters, specifying the extent and subject matter of this jurisdiction. Another important facet of jurisdiction is the capability of states to uphold established standards, whether they are domestic or international2. What are the two key issues affecting enforcement jurisdiction?

who is responsible for ensuring compliance with the specified laws; The method and timing for completing this task. Under international law, the first question is usually resolved by clearly defining what state or states has enforcement authority. Enforcement jurisdiction, much like prescriptive jurisdiction, can be assigned to one or a number of entities from flag, coastal, and port states in the maritime environment3. After establishing which state is responsible for enforcement, the next question is how exactly the enforcement will be implemented. The answer to that question is directly related to capacity, since the effective enforcement of optimal regulations may fall outside of the powers of the lawful enforcing authority.

In this context, three primary categories of enforcement measures have typically been utilized in IMO regulations: Examining ships, looking into potential breaches, and recording adherence to regulations4. In the end, when a ship releases pollutants into the ocean, whether intentionally or unintentionally, two main questions arise concerning who has the authority to set rules and enforce them. What state law governs the conduct of the ship? What specific information is outlined in the applicable laws? Are they laws set by a country or are they regulations established by the International Maritime Organization (IMO)? Which state or states have the power to enforce those laws and bring charges against the vessel for just about any violations? 1 Ivan Shearer, Problems of Jurisdiction and Law Enforcement Against Delinquent Vessels, (35 International and Comparative Law Quarterly 1986)

2 R.R Churchill et al, “The Law of the Sea”, (Manchester University Press, UK, 2nd ed. 1988)

3 Natalie Klein, Maritime Security and the Law of the Sea (Oxford University Press, Oxford, 2011)

4 Robin R. Churchill, “The Impact of State Practice on the Jurisdictional Framework Contained in the LOS Convention”, (Leiden, Martinus Nijhoff, 2005)

The traditional stance of maritime powers on this issue is that flag states have the sole responsibility to establish and enforce international standards for their very own vessels5. Therefore, according to the guidelines set forth in OILPOL 54 and MARPOL 73/78, countries must fulfil numerous responsibilities including setting global standards for vessels flying their flag, conducting inspections to verify adherence to these standards, and also taking legal action against non-compliant vessels, regardless of where infraction took place. The laws of the country where the flag of the vessel is registered are the main criteria used to assess the behavior of a violating vessel, as it is expected to have adopted the appropriate international regulations into its own laws.

The IMCO treaties before the LOSC benefited countries with strong maritime presence by giving the flag state authority over vessels when it comes to regulations and enforcement6. The UNCLOS generally reiterated this position, as will be seen in the following analysis. The previous paragraphs outlined the responsibilities that flag states are able to impose and uphold, but in general, these states are required by international conventions to integrate the standards established by IMCO / IMO into their very own laws. Flag state regulations are commonly believed to have a comparable level of influence as global standards. The flag states are not limited to only meeting the international standards; they have the option to establish more stringent standards.

The concept of a country having authority over its citizens is demonstrated by the flag state's power to create rules that are stricter than those set by international regulations. In this particular scenario, the flag state is given authority because vessels that display its flag are considered to be under its nationality. There has been no increase in the implementation of strict and inconsistent flag state regulations. In reality, the opposite is often true: flag state regulations typically fall short of international standards because these states are usually not required to oversee their ships. Many flag states, particularly those with open registries, rarely see ships flying their flag entering their ports. Therefore, any harm that may result from these ships would affect the marine ecosystems in international waters or in territories governed by other countries.

5 Sam Bateman and Michael White, 'Compulsory Pilotage in the Torres Strait: Overcoming Unacceptable Risks to a Sensitive Marine Environment' (40 ODIL 184 (2009) 6 Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge University Press, Cambridge, 2009)

Additionally, numerous developing countries with flags of convenience struggle to adequately enforce regulations due to limited resources and personnel. Frequently, the primary concern of the flag state is the income generated from registering ships under its flag. The reason why flag states have been required to adhere to minimum pollution control standards through regulations like MARPOL 73/78 and the UNCLOS is simply because they do not have incentives to voluntarily enforce such measures7. For coastal states, the reverse is true. Usually, these performers are driven by the ambition and aspiration to regulate maritime activities within their territories, particularly when ships are under foreign ownership.

Coastal states have a strong motivation to create and uphold more stringent rules to prevent and reduce pollution from ships, as it can harm the oceans and shorelines of their states, as well as the marine life that relies on them8. The safeguarding of territorial seas and internal waters may be justified in international law by the coastal states' sovereignty over these bodies of water. The coastal state asserts a wide jurisdiction over pollution extending beyond its territorial sea, citing potential negative effects on its environment or security. Yet, it is recognized that extending a coastal state's jurisdiction beyond the territorial sea could limit the freedom of navigation. It is not practical for coastal states to enforce various individual standards on ships without aligning their laws.

The idea that ships should adhere to varying regulations for discharge, equipment, design, construction, or crewing depending on the country they are in is illogical. This would likely hinder the smooth passage of military and commercial ships across the globe. In order to prevent this situation, international regulations typically limit the power of coastal countries to enforce individual national measures outside of their territorial waters. As we will talk about further, the regulations on marine pollution set by the IMO and UNCLOS typically stipulate that coastal states are limited in their ability to pass laws that meet or exceed the current internationally recognized regulations and norms. The criteria outlined above represent the most stringent regulations set by a coastal state beyond its territorial waters.

In rare cases, coastal states are allowed to enforce domestic regulations outside of their territorial waters that 7 Jon M. Van Dyke, 'The Disappearing Right to Navigational Freedom in the Exclusive Economic Zone' (29 Marine Policy 107 2005) 8 Brubaker, Douglas, “Marine Pollution and International Law, Principles and Practice”, (Balhaven Press, London 1993)

exceed globally recognized standards9. Special measures refer to actions taken to protect environmentally sensitive sea regions such as ice-covered areas and designated "special areas. " The IMO and UNCLOS instruments have acknowledged the significance of including port states as a third type of state alongside coastal states and flag. Port state jurisdiction can serve as a check against the possible abuse of power by coastal states and was created to respond to their demands for expanded authority10. The UNLCOS put into action a method that included defining territorial boundaries over the oceans to distribute the rights and responsibilities for regulating and enforcing laws among the states involved.

The flag, coastal, as well port states share prescriptive as well as enforcement powers across different zones of the ocean, such as the contiguous zone, exclusive economic zone, and high seas, to be able to effectively carry out their duties. Below will be a detailed discussion of how jurisdiction is divided among the states. The basic idea is that the country with a coastline has greater authority over the ocean areas close to its shores, while the authority of countries whose ships are sailing in those areas increases as they move farther away from the coastline. The goal of the global regulatory framework is to look for a middle ground between the interests of countries with coastlines as well as those with maritime territories.

4.1 FLAG STATE JURISDICTION

The term "flag State" denotes the nationality of a specific vessel and also the administration or government of the State under which the vessel is authorized to fly its flag11. The ships need to be officially registered by a governing body that has the power to enforce regulations outlined in the LOS Convention, both within its very own jurisdiction and in the territories of other nations. This is known as the jurisdiction of the flag State. In most cases, Flag State jurisdiction is the main authority on the high seas and takes precedence over other forms of jurisdiction, such as coastal and port State jurisdiction. A flag State must enforce its laws on a vessel that is registered under its flag.

This includes taking responsibility for administrative, technical, as well as social issues related to the vessel, in 9 Jin-Tan, Alan Khee, “Vessel-Source Marine Pollution”, (Cambridge University Press, Cambridge, 2006)

10 Id.

11 Article 94, Part VII, UNCLOS III

accordance with global regulations and standards12. Flag States have authority over the building, design, and crewing of ships registered under their flag. Yang contends that jurisdiction is commonly used for describing a State's legal power to set and uphold the rights and responsibilities of individuals, as well as govern their behavior. He suggests that jurisdiction includes certain elements of legal authority, such as sovereignty, including rights, freedoms, and abilities13. The distinction must be made between legislative jurisdiction, which is the ability of a State to enact laws for vessels or individuals, and enforcement jurisdiction, which is the ability to enact laws and penalties in accordance with State law14. Enforcement jurisdiction is often combined with legislative jurisdiction.

The extent of control a State has over a specific vessel is determined by its role as a flag, coastal, or port State, as outlined in the LOS Convention. Flag States are required to enforce laws, while port and coastal States have the option to enforce them. However, port, flag, as well as coastal States have the option to prescriptive jurisdiction. The LOS Convention sets strict boundaries on the regulatory and enforcement authority of coastal and port States in comparison to flag States. The agreement comes with a comprehensive solution by setting minimum regulations for flag States and maximum regulations for coastal and port States. The LOS Convention aims to establish a legal framework of the seas and oceans by establishing both maximum and minimum standards in order to promote peaceful use of these areas.

In general, the LOS Convention mandates that flag States uphold environmental protection in three primary methods to prevent pollution in the marine environment. The initial responsibility is to actively safeguard and maintain the marine ecosystem15. Flag States are required to prevent marine pollution and cannot support other nations' actions that do so. They must also create and enforce laws and regulations to protect the marine environment, as well as uphold international standards for marine environmental protection.

12 The Appollon, 22 U.S. 362 (1824)

13 Article 94(4), Part VII, UNCLOS III

14 M/V Saiga (No.2) Case (St. Vincent and the Grenadines v. Guinea), ITLOS, Judgement of 4 Dec. 1999, Case No. 1 15 “Report of the International Law commission to the General Assembly”, Yearbook of the International Law Commission 1956, Vol.II, p.253, Commentary on draft art.30 on status of ships, M.H. Nordquist (ed.), United Nations Convention on the Law of the Sea 1982: A Commentary

Countries that are part of the Law of the Sea Convention have a responsibility to create plans to reduce the negative effects of ships on the ocean environment. States must implement measures to prevent accidents and emergencies, protect vessel safety, and regulate vessel design, construction, equipment, operation, and crewing standards. The goal is to minimize marine pollution by preventing, reducing, and controlling the release of harmful substances into the atmosphere or through dumping16. States have to also put into action preventive measures to regulate vessel source pollution and deter both accidental and deliberate discharges into the sea. Some argue that the Law of the Sea Convention forbids intentional release of pollutants from ships, but it does allow for operational discharges as long as they do not harm marine life or the environment17.

The LOS Convention states that marine environment pollution occurs only in cases where the deliberate or unintentional release of substances or energy into marine environments, like estuaries, by humans can harm marine ecosystems, pose health risks, disrupt recreational activities, and diminish marine resources. The ability of flag States to carry out their responsibilities under international law is greatly influenced by having strong legislation that requires vessels to strictly follow regulations. The Law of the Sea Convention mandates that flag States create national laws to prevent pollution from vessels in three different articles.

One important aspect outlined in article 211 of the LOS Convention would be the obligation for flag States to establish laws and regulations aimed at preventing, minimizing, and controlling pollution of the marine environment brought on by vessels registered under their flag. This authority allows flag States to regulate various forms of pollution originating from vessels, such as oil spills, sewage, waste disposal, hazardous liquids, along with emissions of harmful substances into the air. In addition, article 211 of the LOS Convention promotes the adoption of national laws and regulations with over seven references in its various paragraphs18. Additionally, the Law of the Sea Convention mandates that flag States create their own regulations aimed at preventing pollution from vessels emitting harmful substances into the environment through exhaust.

The Law of the Sea Convention also requires that countries enact laws and regulations to prevent, reduce, as well as manage pollution of the marine environment

16 Justice John Middleton in “Ship Registration and the Role of the Flag”p.8, 345 US at 584,1953

17 Nagendra Singh, Maritime Flag and International Law, Sitjthoff Leyden p.39, P.C.I.J. A 10 1978

18 Article 213, Part XII, UNCLOS III

brought on by and through the air, within their sovereign airspace. This obligation covers the airspace over territorial seas, archipelagic waters, and internal waters of flag States. In the third and most crucial aspect, flag States must establish laws and regulations and take actions to make certain that vessels flying their flag comply with them, as mandated by Article

217 of the LOS Convention19. This grants flag States the power to enforce these laws and

regulations to ensure compliance by vessels under their flag. The LOS Convention includes phrases such as "other measures required," but does not shed light on the specific meaning or implementation of these measures for flag States to enforce vessel compliance. The LOS Convention mandates an examination of what is meant by the phrase "additional actions needed. " States have the flexibility to figure out what actions are needed so long as they adhere to the obligations outlined in the LOS Convention. These obligations include rules related to flag State jurisdiction and preventing marine pollution. Government policies and regulations on ship registration and nationality must be in place to guarantee a genuine connection between the State as well as the ship. The UNCLOS Article 211 grants the Flag State prescriptive or even legislative jurisdiction.

States have to implement laws and regulations which are in line with international standards, as stated in Article 211 (1). Paragraph 2 discusses the responsibilities of flag states in regulating pollution from vessels under their jurisdiction. It requires flag states to implement laws and regulations that are at least as effective as international standards set by competent international organizations or diplomatic conferences for preventing, reducing, and controlling pollution from ships flying their flag20. The flag state has the authority to choose to implement standards that exceed the minimum global standards. UNCLOS Article 217 (1) not only gives the flag state the power to enforce laws and regulations related to preventing pollution from ships, but also prescriptive jurisdiction21. Whenever a violation occurs, enforcement powers may be exercised there.

The country that a ship is registered to must make sure that the vessel follows international regulations and standards, as well as its own laws and rules based on UNCLOS, to prevent, lessen, and manage pollution

19 Article 217, Part XII, UNCLOS III

20 Article 211(1), Part XII, UNCLOS III

21 Article 217(1), Part XII, UNCLOS III

caused by ships. Furthermore, the Flag State must also carry out additional actions to enforce these regulations. The Flag State is in charge of upholding Article 217 by stopping ships from sailing and making sure they follow international regulations. This involves verifying that ships have the required certificates and conducting regular inspections to confirm they are in line with the ship's actual state22. If any breaches occur, the Flag State will launch prompt investigations and take appropriate action. Additionally, Article 94 of the UNCLOS grants the Flag State authority for administration and enforcement23. The country in which a ship is registered is responsible for carrying out safety measures to protect the environment and prevent pollution at sea.

This duty also includes taking action to prevent, reduce, and control marine pollution, as outlined in Article 217 which expands on the responsibilities outlined in Article 94(3).

4.1.1 FLAG STATE JURISDICTION UNDER MARPOL

Flag States are required by law to implement national legislation to make certain that ships flying their flag adhere to internationally recognized rules and standards outlined in agreements like MARPOL 73/78. The authority of the flag State regarding the prevention of pollution from ships is outlined in the primary document of MARPOL 73/78 and its 6 additional annexes. The primary content of MARPOL 73/78 outlines two responsibilities that flag States have to adhere to in this regard. They are responsible for creating national laws that implement MARPOL 73 / 78, and (ii) to enforce regulations and impose penalties on vessels that do not comply24. In this section, we are going to explore the first duty, which pertains to the power of States to create domestic legislation to be able to enforce MARPOL 73/78.

State legislation must enforce the MARPOL 73/78 convention in order to empower States to prevent and control pollution from vessel sources. States must pass laws that regulate all areas covered by MARPOL 73/78, as specified by the convention. Implement the regulations outlined in the convention along with its attached annexes to prevent marine pollution from

22 Article 217, Part XII, UNCLOS III

23 Article 94, Part XII, UNCLOS III

24 The International Convention for the Prevention of Pollution from Ships, available at:

https://www.imo.org/en/KnowledgeCentre/ConferencesMeetings/pages/Marpol.aspx

harmful substances or effluents that violate the terms of the convention. MARPOL 73 / 78 does not state what type of national legislation is required for the implementation of the convention. As a result, there are significant variations among different states in how they implement national laws in accordance with MARPOL 73/78 and its associated annexes. Additionally, States have the freedom to enforce laws and regulations on their domestically registered ships that go beyond the guidelines outlined in the convention, in accordance with MARPOL 73/7825. The regulations and guidelines that govern state-owned ships do not necessarily apply to foreign ships, unless they have been adopted internationally through the IMO26.

Many countries have passed laws to prevent pollution that align with the global standards outlined in MARPOL 73/78, like conducting regular surveys and monitoring discharges during operations. A number of articles within MARPOL 73/78 outline the obligations as well as roles that States

agree to when they ratify the convention. One such obligation is informing the IMO about the legislation implemented regarding the issues covered by MARPOL 73/78. The communication will include certificates samples, lists of reception facilities and their locations, reports on convention implementation, and yearly statistical reports on penalties for violations of MARPOL 73/78 regulations, among other information. Both the Law of the Sea Convention and MARPOL 73 / 78 rely upon flag States to be the main enforcer of their responsibilities on ships operating internationally27. Flag States are required to make sure that enforcement responsibilities are carried out in a practical and reasonable manner, following the guidelines set by the LOS Convention, MARPOL 73/78, and their own laws.

The Law of the Sea Convention and MARPOL 73/78 outline six responsibilities which flag States must uphold for ships under their jurisdiction to prevent and reduce pollution from vessel sources in the marine environment. They are the following: (i) the requirement to control the release of contaminants from ships (ii) the responsibility to identify illegal emissions from 25 Alex G. Oude Elferink, “Governance Principles for Areas Beyond National Jurisdiction”, (27 IJMCL 205 2012)

26 Id.

27 Briand Smith, “State Responsibility and the Marine Environment”, The Rules of Decision, (Clarendon Press, Oxford 1988)

ships; The responsibility to conduct mandatory inspections to make sure that ships comply with environmental laws in order to prevent pollution. (iv) the requirement to provide and approve documentation on board the ship; (v) the responsibility to make sure that dangerous materials are properly packaged, labelled, and stored on ships. (vi) Responsibility to examine reports of violations by ships registered with foreign countries under their flag.

4.2 COASTAL STATE JURISDICTION

The Law of the Sea Convention is the main authority for the legal rights and responsibilities of coastal States in international law. Coastal States are not defined in the LOS Convention. A vessel is located within the maritime zones of a specific State which is known as a coastal State. The idea of coastal States, similar to port States but different from flag States, always involves having authority over foreign ships. Coastal States have the authority to take action against vessels that breach maritime boundaries and may also pursue legal action against foreign vessels that discharge substances in violation of international norms or the coastal State's laws, if supported by evidence28. Martens and Legatski offer a detailed explanation of how the idea of coastal State jurisdiction has developed over time.

This section aims to examine the power of coastal States to protect and maintain the marine environment in their territorial seas from pollution originating from vessels. The territorial sea is a region of the ocean that starts at a State's baseline and goes out to a distance of twelve nautical miles. The LOS Convention sets out the authority of coastal States over their territorial sea in two general categories. One aspect is the authority of coastal nations to create and enforce laws and rules to prevent, lessen, and manage marine pollution brought on by foreign ships traveling in their territorial waters. The coastal states have the power to enforce laws on vessels sailing within their territorial waters29. The Law of the Sea Convention includes the idea of coastal State authority to balance the conflicting interests of coastal States and flag States.

The Law of the Sea Convention includes a distribution of jurisdictional power that has led to differing opinions among researchers. As a result, it is important to examine the distribution of authority in the Law of the Sea Convention 28 Chelsea Purvis, Coastal State Jurisdiction Under UNCLOS: The Shen Neng 1 Grounding on the Great Barrier Reef, (36 YJIL 207 2011)

29 Lakshman Guruswamy, The Promise of the United Nations Convention on the Law of the Sea (UNCLOS):

Justice in Trade and Environment Disputes, (25 ECOLOGY L.Q. 189, 209 1998)

before looking at how States exercise their legal and enforcement powers within their territorial waters. The enforcement authority of coastal States is not specifically governed by international law. Coastal States have a wide range of freedom in this field, resulting in variations in how such jurisdiction is applied. The Law of the Sea Convention does not provide clear guidance on the level of force coastal States are able to make use of against foreign vessels, as it is vague and lacks specific details on the matter30. Also, the specific actions that coastal States need to take to be able to fulfill their enforcement duties as outlined in the LOS Convention are not clearly defined, and there is uncertainty about the timelines for meeting these obligations. Coastal States must act reasonably when exercising their jurisdiction and must not infringe upon their rights.

Each State is obligated to show restraint and moderation when asserting their jurisdiction in cases involving foreign elements, in order to prevent excessive interference with the jurisdiction of other States. Coastal States should avoid unnecessary interference with the actions and responsibilities of other States when implementing measures to avoid, minimize, or manage pollution of the environment31. In principle, creating an abundance of laws can be seen as giving permission for strict enforcement. While States may not focus as much on limiting prescriptive jurisdiction, exceeding enforcement jurisdiction under such laws would violate international law32.

The LOS Convention allocates responsibility for preventing vessel-source pollution in territorial seas among four categories determined by coastal States33: (i) The authority of a coastal State to restrict the passage of non-innocent foreign vessels in its territorial sea. Coastal States have the power to conduct physical inspections of foreign vessels and take legal action against them when they are sailing in the territorial sea. (iii) the responsibility of coastal nations to keep close track of the potential for pollution in the ocean environment and inform any impacted nations. (iv) restrictions on the authority of coastal nations according to the Law of the Sea Convention.

30 Supra Note 241

31 Lewis M. Alexander, The Ocean Enclosure Movement: Inventory and Prospect, (20 SAN DIEGO L. R EV .

561, 566-67 1982).

32 Daniel Bodansky, Protecting the Marine Environment from Vessel-Source Pollution: UNCLOS III and

Beyond, (18 ECOLOGY L.Q. 719, 738 1991).

33 Article 211, Part XII, UNCLOS III

The Coastal State is empowered by Article 211, paragraphs 4 and 5, to make laws and regulations relating to the territorial sea and exclusive economic zone to stop pollution from international vessels. Paragraph 6 focuses on specific regions within the Coastal State that call for unique laws and regulations to safeguard the marine environment in those places. The paragraph outlines the specific steps that must be followed in order to implement special mandatory rules within a country's exclusive economic zone. This includes submitting the rules to the appropriate international organization for approval. The Coastal State has limited authority to enforce regulations on pollution from vessels in certain situations.

Article 220 (2) permits the state to carry out a physical examination, take legal action, and hold a vessel if there are clear indications that it has breached international and domestic laws and rules to prevent pollution while traveling. However, this action will not impact the enforcement of the applicable regulations in Part II - Section 3. If there are obvious signs that a ship has violated the applicable international regulations within the Exclusive Economic Zone (EEZ), the government has the right to request the vessel to disclose details such as its country of origin, registered port, previous and upcoming ports of call, and any other relevant information to determine if it has indeed violated the rules and requirements for protecting against pollution34.

In the event that a ship breaks this rule within the EEZ and results in a large discharge of pollution without giving necessary information, the State has the right to inspect the vessel for violations related to the incident. Furthermore, if the pollution leads to significant harm to the Coastal State's coastline, the State is able to take legal action, such as detaining the vessel, based on the evidence35.

4.2.1 COASTAL STATE JURISDICTION UNDER MARPOL

Coastal states (Parties) are obligated to ban infractions and implement consequences for any Convention violation that takes place within their authority according to MARPOL 73/78, article 4(2). Sovereignty and the authority to apply domestic law, within the bounds of international law, are enjoyed by the coastal state in the territorial sea. Following the guidelines laid out in UNCLOS Part V, a number of coastal states have staked claims to what is known as an Exclusive Economic Zone (EEZ). The responsibility for safeguarding and preserving the maritime environment inside the Exclusive Economic Zone

34 Article 220(2), Part XII, UNCLOS III

35 Id.

(EEZ) lies with the coastal state. Given this delegation of authority, MARPOL 73/78 can be implemented as intended. Except for the obligation in article 4(2) to either inform the flag State Administration of the offending ship of the facts and circumstances surrounding the violation or to initiate proceedings in compliance with the laws of the coastal state, MARPOL 73/78 makes no mention of the enforcement authority of coastal states. Any coastal state that is harmed by MARPOL 73/78 violations that occur within its territorial sea or EEZ may initiate actions against the foreign ship if it voluntarily docks in that state's port. A coastal state has the authority to inspect a foreign ship and, if necessary, initiate legal

proceedings if there is reasonable suspicion that the ship violated the coastal state's laws implementing MARPOL 73/78 while it was in its territorial sea. In the event that a foreign vessel is believed to have violated the coastal state's laws implementing MARPOL 73/78 in its exclusive economic zone (EEZ), the coastal state may request the ship to disclose its identity, ports of call, and other pertinent information in order to determine if a violation has taken place. In the event that the infraction leads to a considerable discharge or poses a serious threat of pollution to the maritime environment within the EEZ, the coastal state has the authority to conduct an inspection of the vessel in question if either the ship refuses to provide the needed information or if the sought information is clearly at odds with the evidence.

The coastal state has the authority to initiate legal procedures where there is undeniable, objective proof that the breach has really caused a major discharge or poses a serious threat of contamination to the maritime environment within the exclusive economic zone (EEZ). The coastal state is required to halt legal action and hand over the case to the flag state in the event that the flag state initiates legal action within the allotted time frame for infractions that occur within the exclusive economic zone (EEZ).

If a coastal state takes action against a foreign ship for a breach of MARPOL 73/78, they must inform both the flag state and the IMO of their decision. The sole exception to this rule is when the infringement occurs in territorial sea, in which case just the proceedings themselves need to be notified.

4.3 PORT STATE JURISDICTION

In general, port state jurisdiction is established solely by the vessel being present in the port. A

pollution incident that takes place in or impacts coastal waters may fall under the jurisdiction of a coastal state. If the only link to the incident is the presence of the delinquent vessel, it functions as a port state36. From a policy perspective, port state enforcement is a compromise between enforcing laws in coastal waters and enforcing laws under a ship's flag. Port states, being coastal states, might be more motivated to enforce environmental regulations compared to flag states because they are directly affected by poorly regulated vessels. This makes port state jurisdiction a valuable tool in ensuring that environmental standards are met. Alternatively, enforcement by port states is more favorable when compared with enforcement by coastal states as it minimizes disruptions to navigation and can be carried out securely37.

Stopping and boarding a ship at sea for inspection can impede its progress and potentially create hazards, depending on external factors such as weather conditions as well as the ship's location. On the other hand, examining a ship while it is docked is much easier and may be conducted without any significant effect on the ship's course38. Initiating legal action against the ship does not interfere with its ability to navigate as long as it can be released after posting a bond. The vessel's freedom of movement is only compromised when the port state detains it for an investigation or proceeding. Port states have an important economic stake in shipping and acquiring goods, making them more prone to balancing environmental concerns against maritime commerce than coastal states39.

Because a port state's jurisdiction over a pollution violation is solely based on the vessel being in port, it cannot enforce regulations based on territoriality, protective principles, nationality, or passive personality principles. Port state prescriptive jurisdiction could only tke place if the universality principle applied to pollution brought about by vessels, indicating that virtually any state can prohibit vessel-source pollution as a universal offense40. Port state jurisdiction is generally restricted to enforcement actions because there is not enough backing for this idea, and the vessel's location will be the main factor during enforcement while 36 Jon M. Van Dyke, Balancing Navigational Freedom with Environmental and Security Concerns, (15 C OLO . J. INT ’ L ENVTL . L. & P OL ’Y 19, 28 2004)

37 Paul Stephen Dempsey, Compliance and Enforcement in International Law—Oil Pollution of the Marine

Environment by Ocean Vessels, (6 NW . J. INT ’L L. & B US. 459, 542 1984) 38 Andrew W. Anderson, National and International Efforts To Prevent Traumatic Vessel Source Oil Pollution,

(30 U. MIAMI L. R EV . 985, 1000 1975)

39 Malcolm N. Shaw, International Law (6th edn Cambridge University Press, Cambridge 2008)

40 Ted L. McDorman, Regional Port State Control Agreements: Some Issues of International Law, (5 Ocean & Coastal L.J. 207 (2000)

in port. Nonetheless, whenever a port state carries out enforcement measures like inspecting a ship to check for discharge violations in international waters, it is actually probing an infringement of another country's laws, rather than its own, over which it has no jurisdiction. In various sections of UNCLOS, the treaty deals with the authority of States to regulate foreign vessels in their ports and the enforcement of measures to mitigate and manage ship pollution. Article 211(3) allows countries to set specific regulations to prevent, reduce, and manage marine pollution in order to access their ports and internal waters. These regulations must be made public and shared with the relevant organization. Port State Control measures may also be referred to as such.

When we talk about Port State Controls, the focus is on the importance of innocent passage rights or the implementation of Article 25 (2) of UNCLOS41. The implementation of these laws and regulations is discussed in Article 218 of UNCLOS. The Port State has the authority to investigate discharges from ships outside of its territorial waters that breach international regulations and standards if there is sufficient evidence to do so. Furthermore, if a ship in a port is not in compliance with international safety regulations and poses a risk to the marine environment, port authorities must take appropriate actions to prevent the ship from leaving until the issue is resolved, as outlined in Article 21942.

According to Article 226 (1) (c) of UNCLOS, Port States have the option to deny a vessel's release if it would provide an unacceptable threat to the marine environment, or they are able to require the vessel to go to the closest suitable repair facility before being released. Once the reasons for the violation have been addressed, ships should be allowed to resume their activities without delay. The Port State has the authority to enforce penalties under its own laws for breaches of regulations aimed at preventing pollution from ships, even if no actual discharge of pollutants occurs43.

4.3.1 PORT STATE JURISDICTION UNDER MARPOL

The IMO has included provisions for port State jurisdiction in almost all multilateral regulatory conventions related to preventing and controlling marine pollution. The research on the scope and legality of port State jurisdiction in these conventions administered by the IMO discovered 41 Ho-Sam Bang, ‘Port State Jurisdiction and Article 218 of the UN Convention on the Law of Sea’ (40 J. Mar.

L. & Com. 292 2009)

42 Id.

43 Article 226 (1) (c), Part XII, UNCLOS III

that port State rights and responsibilities are outlined in specific regulations within SOLAS 74. In addition, the International Convention on Load Lines 1966 (as amended by the 1988 Protocol) includes regulations regarding the authority of port States as outlined in Article 2144. The regulations outlined in Annexes 1, 2, 3, and 5 of MARPOL 73/78 also consist of rules regarding port State jurisdiction. The rules for establishing jurisdiction by port States can be found in Article X of the STCW 1978 and Article 12 of the International Convention on Tonnage Measurement of Ships 1969. The port State jurisdiction established by MARPOL 73/78 is closely linked to protecting and maintaining the marine environment by preventing pollution from ships45. As mentioned in earlier paragraphs, the main challenge in enforcing MARPOL 73/78 is the dependence on flag States for enforcement.

In order to address this issue and meet MARPOL 73/78's main obligation, the IMO transferred the enforcement responsibilities from flag States to port States. Similar to the law of the sea convention, the enforcement of port State jurisdiction under MARPOL 73/78 isn't mandatory. The concept of "flags of convenience" may be compared to the idea of "ports of convenience" that arise from the voluntary jurisdiction of port States46. There are many reasons why States choose to run ports that offer convenience. This can sometimes result in lax enforcement or even a lack of enforcement of internationally agreed standards to attract ships that may not meet these standards.

This section looks at Port State jurisdiction under MARPOL 73/78, which aims to safeguard the marine environment against pollution from vessels, using the exact same three requirements outlined in the Law of the Sea Convention. They are the following: (i) the authority of port States to govern and refuse entry into ports; (ii) Port State control and enforcement in ports are essential for protecting and maintaining the marine environment by protecting against pollution from ships; (iii) Port States have a duty to collaborate in enforcing consistent regional regulations and to promote mutual reliance among them47.

CONCLUSION

UNCLOS is a major accomplishment that serves as a foundation for creating different legal 44 Brian F. Fitzgerald, ‘Port State Jurisdiction and Marine Pollution Under UNCLOS III’ (11 MLAANZ Journal

37 1995)

45 David Freestone, Richard Barnes and David Ong, “The law of the Sea: Progress and Prospects” (Oxford University Press, Oxford 2006)

46 Id.

47 George C. Kasoulides, Port State Control and Jurisdiction (Martinus Nijhoff publishers, London 1993)

tools to prevent marine pollution. The jurisdictional framework was established. The regime has its limitations. This may be because it attempted to reconcile the rights of navigation with preventive actions. The States that were granted jurisdictional duties and powers under UNCLOS face challenges in implementing and enforcing those powers and duties. Regrettably, Flag State responsibilities are not carried out efficiently. The Flags of Convenience Registries have very lenient regulations when it comes to their global obligations. In spite of efforts to address these issues, there remain gaps in the global legal system. Some writers argue that this exclusion was intentional.

Moreover, UNCLOS aimed to include current and upcoming agreements through reference, and the Convention includes phrases such as "relevant international regulations and norms" and "widely recognized international regulations and norms. " The exact interpretation of these referencing rules is unclear, which can lead to disagreements about meeting responsibilities. Flag States are allowed by law to enact regulations that are equivalent to international standards. The international standards provide a foundation for Flag States to establish even stricter standards. Using phrases like "best practicable means" weakens the enforcement process and also permits different enforcement methods to be used at varying levels.

Furthermore, the Flag States lack the motivation to effectively implement and enforce pollution control laws due to the introduction of the introduction of the "Flag of Convenience. " The issue with the authority of both the Port State and the Coastal State is rooted in the inconsistency of enforcement measures. This area is not covered by state practice. Only a small number of states have enacted regulations granting particular jurisdiction over coastal areas, and some of these regulations do not adhere to UNCLOS criteria. UNCLOS is seen as a foundational treaty that set the stage for future international agreements and regulations, despite its limitations.