Vessel-Source Marine Pollution and the Non-Suspension of Coastal State or Port State Proceedings: Pinpointing Flag States of Repeat Disregard in Article 228 of UNCLOS?

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As we straddle the 40th Anniversary of the United Nations Convention on the Law of the Sea (UNCLOS) and the 50th Anniversary of the International Convention for the Prevention of Pollution from Ships (MARPOL), State and academic attention re-focuses on tackling marine pollution. Indeed, an ITLOS Advisory Opinion concerning Part XII will likely address MARPOL’s incorporation through the UNCLOS ‘rules of reference’. Time is thus ripe to explore the less trodden and more fluid provisions in Part XII of UNCLOS.

This post reflects on Article 228(1) of UNCLOS, which preserves the primacy of flag State enforcement concerning extraterritorial vessel-source pollution. Flag States are granted a right to pre-empt certain infringement proceedings brought by port States or coastal States against their vessels if conditions are met and neither of two limitations applies. Let us focus on the second limitation, namely the loss of flag State pre-emption when the flag State “has repeatedly disregarded its obligation to enforce effectively the applicable international rules and standards in respect of violations committed by its vessels”. How do we assess and establish a flag state of repeat disregard? We discuss MARPOL, but other conventions also provide applicable international rules and standards (e.g., AFS Convention; Section 21 of Australia’s Protection of the Sea (Harmful Anti-fouling Systems) Act 2006).

Article 228 – A Double-Edged Shield

Article 228 is a ‘safeguard’ within Part XII of UNCLOS concerning the protection and preservation of the marine environment. It balances the interests of States with concurrent jurisdiction and the community interest in upholding international rules and standards as minimum global standards:

Article 228

  1. Proceedings to impose penaltiesin respect of any violation of applicable laws and regulations or international rules and standards relating to the prevention, reduction and control of pollution from vessels committed by a foreign vessel beyond the territorial sea of the State instituting proceedings shall be suspended upon the taking of proceedings to impose penalties in respect of corresponding charges by the flag State within six months of the date on which proceedings were first instituted, unless those proceedings relate to a case of major damage to the coastal State or the flag State in question has repeatedly disregarded its obligation to enforce effectively the applicable international rules and standards in respect of violations committed by its vessels … [further conditions apply beyond the scope of our discussion].

Flag State pre-emption is a mechanism to safeguard against possible abuses of port State jurisdiction on vessel discharges (Article 218) or coastal State jurisdiction on vessel discharges/emissions (Article 220) (Somers (1990)). Shielding vessels from foreign proceedings can preserve the freedom of navigation and the priority of flag State enforcement for extraterritorial vessel-source pollution (UNCLOS, Articles 92, 94, 211(2) & 217). Nonetheless, the existence of the repeat disregard limitation to flag State pre-emption already signals States’ dissatisfaction with flag States of non-compliance (Anderson (1998)). By contrast, coastal State pre-emption of port State proceedings includes no comparable limitation (UNCLOS, Article 218(4)).

For port and coastal States, Article 228 affirms their expanded jurisdiction. They have a continuing right to implement punitive proceedings should flag States fail to investigate and, where appropriate, institute proceedings concerning a violation of MARPOL (UNCLOS, Article 217(4)). Residual port State jurisdiction (below) or coastal State jurisdiction in ice-covered areas of the EEZ (Article 234) fall outside the scope of Article 228, sidestepping any possible flag state pre-emption. Coastal States can shield their proceedings from suspension concerning “a case of major damage to the coastal State”, while coastal and port States may shield proceedings from suspension in cases of a flag State’s repeat disregard to fulfil its obligations. The risk in both cases is that ‘major damage’ or ‘repeat disregard’ are open to differing interpretations (Molenaar (1998) p. 464). Flag State objections to the utilisation of these limitations could result in compulsory third-party dispute settlement proceedings (UNCLOS, Articles 286 and 288(1)).

Given that Article 228 balances competing interests and provides a threshold limiting a State’s treaty rights, there should be some accepted criteria or guiding principles in establishing repeat disregard. A shared understanding could also be more effective than unilateral identifications, thereby better serving Article 228’s objectives (Pozdnakova (2012) p. 253). This would better preserve the pre-emption rights of diligent flag States, while increasing pressure on non-compliant flag States to resume effective implementation. As an exception to flag State primacy, the objective is not to promote port or coastal State proceedings, which would shift the regulatory burden, but rather reinforce flag State investigations and enforcement in cases of suspected violation. Finally, a shared understanding or tool in identifying flag States of repeat disregard would provide vessel owners greater awareness of the advantages and disadvantages of each flag State, i.e., the potential (lack of) protection from foreign proceedings. This could result in generally greater flag State oversight and thus the avoidance of violations. Pollution avoidance is superior to reactive punishment and the need to assess flag State vigilance.

Flag States party to UNCLOS are obliged to prescribe domestic laws as effective as MARPOL standards, regardless of if they are also party to MARPOL (UNCLOS, Articles 94(5) & 211(2); Ringbom (2015)). On enforcement obligations –which Article 228 addresses– flag States must ensure compliance by their vessels with MARPOL standards, including through the prevention of non-compliant vessels sailing; periodic inspections; certification schemes; investigations of suspected violations; prosecution of evidenced violations; information exchange on enforcement; and the imposition of penalties adequate in severity to discourage violations wherever they occur (UNCLOS, Article 217; MARPOL, Article 4). This represents a mix of strict liability and due diligence obligations.

The repeat disregard limitation is framed in the past tense. Port and coastal States may only reject suspension of their proceedings as a response to previous flag State failings in respect of violations committed by its vessels. The benefit of the doubt towards flag State enforcement therefore includes cases where it is foreseeable that no effective enforcement will occur, e.g., due to a lack of adequately prescribed domestic law. Concerns about preserving the freedom of navigation trump environmental protection concerns until concrete examples of violations, unaddressed by the flag State, have demonstrated a failure to fulfil Article 217(4) of UNCLOS. Finally, repeat failures must be on the part of the flag State, not a particular vessel, owner, operator etc.

Identifying Flag States of Repeat Disregard: Guidance?

Of the two kinks in the flag State’s Article 228 armour, sources have explored ‘major damage to the coastal State’ (Virginia Commentaries (1990)M/T Erika (2012)), but less so what would qualify as a flag State of repeat disregard (e.g., Becker-Weinberg (2017) focusing instead on its contributions to environmental protection). Cot (2010) highlights the silence or scepticism of literature on coastal States concerning Article 228 (since Andreone (2016)). Port State literature similarly demonstrates the importance of Article 228 (McDorman (1997)Fitzgerald (1998)Bang (2009)) but focusing elsewhere than the repeat disregard exception. IMO guidance on enforcing MARPOL repeats Article 228 without elaboration (IMO (2013)).

Within State practice, Regulation 46(3)(b) of the UK Merchant Shipping (Prevention of Oil Pollution) Regulations 2019 and Section 29(2)(b) of Australia’s Protection of the Sea (Prevention of Pollution from Ships) Act 1983 are examples of domestic implementation. They include the applicable wording from UNCLOS but leave its determination to the executive or prosecutor.

Judicial practice has however shed some light. US v. Royal Caribbean Cruises (1998) affirmed that flag State pre-emption in Article 228 only applies to port or coastal State proceedings utilising the jurisdiction in Articles 218 or 220 of UNCLOS respectively. Port States prosecuting a foreign vessel for an extraterritorial discharge violation could have their proceedings suspended, while a port State prosecuting said foreign vessel for the subsequent offence of presenting a false Oil Record Book to port authorities could not. The necessity of invoking the repeat disregard exception can be avoided by port States if an alternative jurisdictional basis beyond Article 218 of UNCLOS is available. This avoids flag State pre-emption altogether.

M/T Trans Arctic (2009) suggested that once a flag State meets the conditions of Article 228, the coastal or port State shall suspend proceedings. The court of the coastal State was not to assess the punitive fines of the flag State, nor introduce new factors (i.e., distinguishing proceedings concerning the master or owner). Instead, the coastal State government had discretion over invoking the repeat disregard exception. On the same day, RoRo Fast Indépendence (2009) directly concerned the question of a flag State of repeat disregard. The appeal court had suggested an assessment of the flag State’s legislation and practice could display a lack of enforcement or deterrence (UNCLOS, Article 217(8)). The Cour de Cassation did not dismiss this analysis, but extinguished proceedings as again the repeat disregard exception was for the executive to invoke. 

Cot (2010) highlighted the possible chilling effect M/T Trans Arctic and RoRo Fast Indépendence could have on port States or coastal States considering a flag State as one of repeat disregard, skewing the balance of Article 228 in favour of flag States. Nonetheless, vice versa, in BC Thisseas (2019), when the executive has decided to reject a flag State’s request for suspension under Article 228 –on the basis of not being able to envisage an effective prosecution– that decision is not subject to judicial review in France (Chaumette (2020)). This preserves the scope for France’s international relations but does not assist in providing comparative reasoning to identify flag States of repeat disregard or promote collective application.

Finally, The Alambra (2004) noted that at-sea enforcement was not a precondition for coastal State jurisdiction over pollution in the EEZ. Jurisdiction to impose subsequent administrative penalties against the ship owner was not prohibited by UNCLOS (Pozdnakova (2012) p. 143), and Article 228 did not affect this conclusion. Indeed, a proceeding can be initiated up to 3 years after a violation.

Identifying Flag States of Repeat Disregard: Tools?

Decisions of the executive identifying repeat disregard may satisfy domestic proceedings in certain States. But what of States where judicial review of the reasoning behind acceptance/rejection of a flag State request for suspension is possible? Or as evidence during discussions with rejected flag States to maintain otherwise strong relations? Or in international dispute settlement concerning Article 228? Or in demonstrating due regard and process? Or in communal application of Article 228 for more effective, consistent and balanced application? Beyond unilateral assessment, there could be more clear and objective international tools to assist States and academia in identifying flag States who repeatedly disregard their obligations to enforce MARPOL standards. Anderson (1998) foresaw two examples which have since significantly developed, namely the IMO self-assessment process (since evolved into the Mandatory Audit Scheme) and the use of lists developed by the Secretariats of regional Port State Control Memorandums of Understanding (MoU) (further, Pozdnakova (2012) pp. 183-184). Unfortunately, these are arguably still work-in-progress if States wish to tweak them so as to better serve Article 228-based assessments of flag State enforcement.

The Tokyo MoU coordinates port State control measures on maritime shipping in Asia-Pacific, including verification of MARPOL compliance. The Annual Report (2021) notes that 7.31% of vessel deficiencies are related to international standards on pollution prevention, with three flag States ‘black listed’ (Tokyo MoU (2022), Annex 2.1 1)). In establishing repeat disregard, one must separate vessel non-compliance (not relevant) and subsequent flag State non-compliance (relevant). The ‘black list’ is utilised in a risk assessment of vessels seeking port entry, but the recorded three years of poor flag State performance –which result in a high degree of inspections and detentions– may also demonstrate a lack of flag States upholding their enforcement obligations. Other regions adopt the same flag State performance methods (e.g., Paris MoU (2022)), so a systemic review of MARPOL deficiencies and blacklisted flag States could shed light on identifying flag States of repeat disregard.

Furthermore, greater evidence on blacklisted Member Authorities may arise because they must commit to taking all necessary measures to decrease the detention rates of their flagged vessels, as well as report to the Tokyo MoU Committee on their improvement efforts (Tokyo MoU (2022), para 2.8). Substantial non-compliance with membership criteria can trigger a review procedure, which can consider the lack of improvement in detentions, or a failure to report on improvement efforts (Tokyo MoU (2022), para 3.4.2).

However, of greater interest is the IMO Member State Mandatory Audit Scheme (IMSAS) which seeks to determine the extent to which IMO Member States are effectively fulfilling their obligations and responsibilities under IMO instruments – including MARPOL (IMO Assembly Resolution A.1067(28) (2013)IMO Assembly Resolution A.1070(28) (2013)). An Implementation Code provides the audit standard for IMSAS, which includes reviewing the flag State’s enforcement following any port State inspections or detentions that raise questions of vessel non-compliance (IMO Assembly Resolution A.1070(28) (2013), paras 24.3-24.4 & 25). In light of foreign port State control IMSAS also audits whether a flag State has sufficient resources and procedures in place to ensure vessel compliance (IMO Assembly Resolution A.1070(28) (2013), paras. 43 & 44.4). Finally, IMO guidance on IMSAS and flag State obligations in MARPOL includes enforcement guidance (IMO Assembly Resolution A.1157(32) (2022).

Arguably, if a Member State’s Audit Final Report, Corrective Action Plan and Audit Follow-Up Reports demonstrate a lack of response to any findings on flag State enforcement of MARPOL, this could demonstrate a repeat disregard to effectively enforce international standards on vessel-source pollution. A port or coastal State could then consider exercising its rights under Article 228 to not suspend domestic proceedings, should said flag State request suspension. IMSAS documentation could be used in discussions to justify non-suspension.

As of 2019, an anonymised consolidated report of 68 audits suggested 25% of findings concerned a lack of full MARPOL implementation (IMO Secretariat (2021), in particular not giving MARPOL full effect in domestic law. 42% of total findings concerned flag State responsibilities, so we can expect some overlap, including on enforcement (17.2% of flag State findings) and specifically on a lack of flag State enforcement following possible non-compliance raised by port States (11% of enforcement findings). Examples in the first consolidated report (IMO Secretariat (2017)) include a State with no legislation to impose sanctions on MARPOL violations, as well as two other States who established sanctions insufficient to discourage its vessels from violating MARPOL.

However, moving beyond anonymous findings to identify particular flag States requires access to the Audit Reports and Action Plans. A significant barrier to using the IMSAS process and reports in assessing flag States of repeat disregard is its default confidentiality (IMO Assembly Resolution A.1067(28) (2013) paras 5.1.3, 6.2.4 & 6.3.2). Confidentiality exists to encourage full and effective participation in IMSAS. Audit reports are only released to other Member States with the express authorisation of the audited Member State, prior to the audit (IMO Assembly Resolution A.1067(28) (2013) para 6.3.4). Given the sensitivities of releasing a document that indicates how a State fulfils –and does not fulfil– its legal obligations, one might expect a degree of reluctance in publication. Nonetheless, club pressure towards transparency among IMO Member States may play a role. As of January 2023, GISIS records IMO Members providing other IMO Members access to 76 Final Audit Reports (0 have granted public access). This represents 51% of the total 147 audits, a sizable chunk for review by port and coastal States.

Conclusion

Exceptions to the primacy of flag State jurisdiction are strictly construed. Article 228 of UNCLOS preserves this primacy through a right of pre-emption against defined foreign State proceedings (Articles 218 and 220) – equally motivating flag States to address violations within six months of said foreign proceedings so as to preserve their primacy. Scepticism in applying the Article 228 exceptions would dissipate with guidance and multilateral tools of common and objective application. However, to date, the rare practice on repeat disregard focuses on opaque executive decisions at the unilateral level (France) or sidestepping Article 228 altogether (US v. Royal Caribbean Cruises (1998)). Anticipated multilateral tools that might lend weight to a repeat disregard test have significantly developed, but as yet are insufficiently specific or public to demonstrate a proof of concept in the shared application of Article 228. Perhaps revisiting Article 228 as part of 2023’s focus on marine pollution is in order.

Author’s disclaimer: Views expressed are personal, and do not necessarily reflect the views of the Foundation or any other institution.

Photo: CPL Sam Shepherd/NZ Defence Force (2011).

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