12.4 Extraterritorial prescription – restrictions originating in the
However, through an incorporation of a reference to UNCLOS in MARPOL Annex VI, Regulation 11 (6)68, the general regime of jurisdiction applying to pollution from vessels in general applies to pollution from and through the atmosphere, at least between the parties to MARPOL Annex VI (BAT 2000). This means that especially Art. 211 (3) UN-CLOS69 is of relevance for the question of whether UNCLOS does restrict its member states in enacting legislation relating to emissions on the high seas or the EEZ.
In addition even if there is no direct conflict with Art. 211 UNCLOS, there could be re-strictions if and to the extent to which an ETS regime tries indirectly to influence con-struction, design, equipment or manning (CDEM standards), as Art. 2170 and Art. 211
68 Reg. 11 (6) MARPOL Annex VI states:The international
law concerning the prevention, reduction, and control of pollution of the marine environment from ships, in-cluding that law relating to enforcement and safeguards, in force at the time of application or interpretation of this Annex, applies, mutatis mutandis, to the rules and standards set forth in this Annex.
69 Art. 211 (3) UNCLOS states:
3. States which establish particular requirements for the prevention, reduction and control of pollution of the marine environment as a condition for the entry of foreign vessels into their ports or internal waters or for a call at their off-shore terminals shall give due publicity to such requirements and shall communicate them to the competent international organization. Whenever such requirements are established in identical form by two or more coastal States in an endeavour to harmonize policy, the communication shall indicate which States are participating in such cooperative arrangements. Every State shall require the master of a vessel flying its flag or of its registry, when navigating within the territorial sea of a State participating in such cooperative arrangements, to furnish, upon the request of that State, information as to whether it is proceeding to a State of the same region participating in such cooperative arrangements and, if so, to indi-cate whether it complies with the port entry requirements of that state. This article is without prejudice to the continued exercise by a vessel of its right of innocent passage or to the application of article 25, para-graph 2.
70 Article21 states:
Laws and regulations of the coastal State relating to innocent passage
1. The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following:
(a) …
(d) the conservation of the living resources of the sea;
…
(f) the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof;
…..
2. Such laws and regulations shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards.
3. The coastal State shall give due publicity to all such laws and regulations.
UNCLOS both acknowledge that the state’s legislative competence to prescribe CDEM standards is restricted.
12.4.1 CO2 emissions and pollution under UNCLOS and MARPOL
According to Art. 211 UNCLOS flag states are obliged to adopt rules and regulations to prevent, reduce and control marine pollution which “shall at least have the same effect as that of generally accepted international rules and standards”. Furthermore, coastal states may “in exercise of their sovereignty within their territorial sea” adopt pollution laws and regulations concerning foreign vessels. However, in this context it is empha-sized that coastal states’ laws and regulation “in accordance with Part II, section 3, shall not hamper innocent passage of foreign vessels”. The reference to Part II, section 3 of UNCLOS makes clear that the general provisions for the jurisdiction of coastal states, especially Art. 21 UNCLOS, shall apply to pollution from vessels as well. Ac-cording to Art. 21 UNCLOS coastal states may adopt laws and regulations in respect of the preservation of the environment and the prevention, reduction and control of pollu-tion thereof. Such laws and regulapollu-tions however shall not apply for construcpollu-tion, de-sign, equipment and manning (CDEM standards) of foreign ships “unless they are giv-ing effect to generally accepted international rules and standards” (Art. 21 (2) UN-CLOS). Yet Art. 211 para. 3 UNCLOS makes clear that port states are free to establish further requirements for the prevention of pollution as a condition of port entry. (BAT 2000).
The first question in this context is whether CO2 emissions can be characterized as
“pollution of the marine environment” in the sense of Art. 211 UNCLOS. Art. 1 UN-CLOS defines pollution of the marine environment as follows:
“’pollution of the marine environment’ means the introduc-tion by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to hu-man health, hindrance to marine activities, including fish-ing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities;”
Some authors argue that – as greenhouse gases lead to a warming of the atmosphere and may in turn lead to a warming of the oceans – greenhouse gases would fall within
4. Foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations and all generally accepted international regulations relating to the prevention of collisions at sea.
the definition of marine pollution, as the emission of greenhouse gases results in the in-troduction of energy into the oceans. Furthermore, an “effects-based” view of marine pollution should include the release of any substance that causes harm to the marine environment (Doelle 2006, Jaén 2007)71. As UNCLOS aims at a comprehensive pro-tection of the marine environment and with a view to the direct negative impact of in-creased CO2 concentrations in the sea water (WBGU 2006) there can be no serious doubt that greenhouse gas emissions can be subsumed under the term “pollution”.
Therefore the question of whether an ETS regime with extraterritorial aspects is justifi-able has to be examined in the light of Art. 211 UNCLOS.
As MARPOL has so far been silent on the question of CO2 emissions, it cannot be ar-gued that MARPOL imposes any restrictions on member states not to impose any uni-lateral measures to regulate greenhouse gas emissions. However, due to the reference to Art. 21 UNCLOS, the following limitation of jurisdiction has to be respected: Unilat-eral laws and regulations shall not apply for construction, design, equipment and man-ning standards.
Therefore the question arises as to whether an EU ETS can be interpreted as pre-scribing construction, design, equipment and manning standards. Although an EU ETS may disincentive – depending on the design of the EU ETS – the use of certain CDEM standards an ETS can not be interpreted as to prescribe a certain CDEM stan-dard. Vessels will remain free to use CDEM standards as they see fit under an EU ETS and. Although the EU ETS has only will have economic impact on the choice of the CDEM standards used, the EU ETS cannot be interpreted as prescription of a CDEM standard itself, even if certain standards will de-facto have to be used in order to re-duce CO2 emissions.
Neither UNCLOS nor MARPOL therefore restrict the introduction of an extraterritorial EU ETS scheme.
12.4.2 Restrictions stemming from bilateral treaties on navigation?
The very common treaties on navigation72 should pose no problems with respect to in-troduction of an ETS regime, as these treaties generally do not guarantee an unre-stricted right to visit ports of the other party. For example the treaty of friendship, com-merce and navigation between Germany and the United States provides that both par-ties “shall have liberty on equal terms with vessels of the other Party and on equal terms with vessels of any third country, to come with their cargoes to all ports, places and waters of such other Party open to foreign commerce and navigation.” As the
71 The rising concentration of CO2 in the seas does lead to severe acidification of the seas. The chemical causes and the implications are analyzed in detail in WBGU 2006. This means that CO2 emissions have not only an indirect effect – global warming – but also a very direct effect on the marine environ-ment.
72 Most treaties on navigation provide for national treatment of the vessels of the other party in ports and territorial sea.
eral treaties are generally restricted to national treatment and most-favored-nation treatment, an ETS regime poses no problems as long as it is applied in a non-discriminatory manner.
12.4.3 Interim result
Although Art. 211 UNCLOS and Art. 21 UNCLOS are applicable to any regulation that aims at the reduction of CO2 emissions, and therefore a unilateral prescription of CDEM-standards is not allowed, neither Art. 211 UNCLOS nor Art. 21 UNCLOS restrict their member states from enacting an ETS. Art. 211 UNCLOS does not prescribe cer-tain CO2 emission limits and is therefore neutral vis-à-vis an instrument like the ETS.
As an ETS does not prescribe the methods that should be used in order to achieve the objectives of an ETS scheme there is no prescription of any CDEM standards. As MARPOL so far does not cover CO2 emissions MARPOL does contain no restrictions for the establishment of an EU ETS.