Running head: CONSTRAINTS OF FLAG, PORT AND COASTAL STATES

THE UNIVERSITY OF TRINIDAD AND TOBAGO

Masters of Science in Operational Maritime Management

LAW 1

Course Leader: Captain Sukhjit Singh

ASSIGNMENT: 1

STUDENT NAME: Anika Ouditt

STUDENT #:
CONSTRAINTS OF FLAG, PORT AND COASTAL STATES 2

Introduction
The preservation and protection of an aquatic surrounding from vessel-source
contamination is a crucial ecological concern that has captured globe focus in the previous five
decades. Ship-source contamination not only places an enormous economic weight on the local
populace but also endangers the feasibility of those parties accountable for the occurrence. A
rising ecological cognizance that waters are no longer an unlimited reserve, and that the value of
the maritime surrounding is worsening quickly, has caused a multifaceted scheme of cohesive
oceans policies as well as the progress of a global legitimate framework for the defense and
protection of an aquatic surrounding from the vessel basis contamination (Chen, 2015).

Ineffectual flag, coastal and port state power is a major issue backing large-scale vessel
source contamination events. Under the global legal context, flag states have a legitimate
accountability to make sure that their vessels conform with intercontinental regulation, wherever
the vessels are situated. Coastal states have control over oversea-flagged vessels
circumnavigating in archipelagic seawaters, regional sea, distinct contamination deterrence
zones, and limited financial zones and on the high sea. This authority ought to be applied without
overly vexing the rights of the way of the vessels. Moreover, port states have authority to
scrutinize vessels willingly visiting their ports and interior water in order to apply universally
recognized and usually recognized standards for the shield of the maritime surrounding.

Over the past decades, the regulations in regards to vessel-source contamination has
threatened the battle between coastal states in search of protecting their coastal waters by using
severe ecological control. States with substantial marine, commercial interest (maritime states)
who outlook coastal state ecological guidelines as a peril to orthodox rights of cleared
passageway and liberty of navigation (Dafforn et al., 2015). The vessel-source contamination
provision of the 1982 U.N conventions on the Law of the Sea, seeks to solve this battle by
defining more correctly the jurisdictional right and duties of the states. But, even though the pact
is less than four decades old, its compromises on ecological authority are already starting to
display ciphers of tension (David & Gollasch, 2014).
CONSTRAINTS OF FLAG, PORT AND COASTAL STATES 3

The vessel-sources contamination necessities of UNCLOS III have become the locus
point for practically all topics of maritime conservational authority and, even though the
agreement is not yet in power, have debatably become standards of customary international
decree. Vessel-source pollution accounts for about 12% of all aquatic pollution as matched to
atmospheric sources and land-based sources, ocean dumping and offshore production (Gjerde,
Currie, Wowk & Sack, 2013). The quantity of vessel-source pollution results from routine
operations releaser such as disposing of garbage’s and sewages and washing cargo tanks. On the
contrary, in spite of communal importance of occurrence such as the Exxon Valdez oil leak, the
maritime casualties are accountable for less than a quarter of all vessel-source contamination.

In spite of the progression of global vessel-source contamination standard, the execution

of these criterions has been mainly the accountability of entity’s states since the worldwide web
lacks operative execution gears. This increases a number of prerogative inquiries: to what range
may state establish a more stringent environmental standard if they consider the international
agreed-upon principles are adequate? To what degree must state execute intercontinental
contamination principles? What other states have the will to execute those standards? Unlike the
worldwide vessel-source effluence guidelines, which have been recognized almost wholly by
universal standards, the jurisdictional duties and rights of states have been well-defined majorly
by customary internal law. The 1958 Law of the sea conventions embraced at the first UN forum
on the Law of the Sea partly deliberated the customary duties on jurisdictions before UNCLOS
III (Pallis, 2017).  Questionably, these jurisdictional standards been altered and substituted by
more comprehensive guidelines enclosed in UNCLOS III through a procedure of customary
legislative that happened due to its concession and extensive acquiescence with its necessities
(Gjerde, 2012).

Execution of these numerous types of vessel-source contamination principles comprises

the exercise of three different kinds of authority: jurisdiction to adjudicate, impose and prescribe.
Adjudicative authority is the administrative or influence of a court to hear an incident related to a
person or vessel. Prescriptive authority is jurisdiction to directive a vessel’s acquiescence with
specific contamination standards. Finally, the execution involves punishing or preventing
defilements of those principles, for instance, the delaying the boats investigating offence,
indicting, sanctioning and arresting the offender.
CONSTRAINTS OF FLAG, PORT AND COASTAL STATES 4

One of the greatest outstanding aspects of UNCLOS III’s necessities on the vessel-source
contamination is limits on the port and coastal state jurisdiction. In other realm, states have huge
controls to check conduct outside their region that severely impacts them, at least if the impact is
straightforward. For instance, the United States attempts to plan its security and antitrust rules
into other nations on these foundations (Kraska & Pedrozo, 2013). In fact, if an action is
deliberated to have its focus not just where it was done but also where its influence is touched,
declarations of effects of authority would be regarded as regional rather than extraterritorial in
kind (Huntington et al., 2015).

The global law of the sea has yet been unwilling to permit coastal starts to manage
actions in their coastal seawaters which may influence their territory or resources. Therefore,
under UNCLOS III, in spite of the acknowledgment of a broader coastal state capability, a
coastal state is still not permitted to use any prescriptive power in waters beyond 500 miles from
the coast, even though it's likely that an occurrence in those seawaters might contaminate shelf
resources (Kristiansen, 2013). This above-mentioned gap between the jurisdictional competence
in other spheres and competence of states to safeguard the marine surrounding appears to be
broadening. For the past few years, state control to propose and implement global guidelines has
undergone a extraordinary growth, intended to back better acquiescence with worldwide decree.

Contrary, the jurisdiction expansion to shield the marine environment has been more
uncertain. As earlier mentioned, UNCLOS III offers coastal states somewhat huge prescriptive
and enforcement power than earlier. Ports state may take part in investigating and to a minimal
scope, indicting aquatic contamination desecrations. However, the part of the flag states remains
key point. For instance, consider the authority of ports to indict defilements of vessel-source
contamination guidelines. Even though port state enforcement, unlike execution at marine, does
not levy a direct load on the navigation, UNCLOS III, however, provides primacy to the flag
state, by permitting it to obstruct port state wrong proceeding in most occasions. The only
exclusions are for desecrations that result to a main damage to the port state or when the flag
state has recurrently ignored its duty to impose efficiently the appropriate global guidelines and
rules. Similarly, the port states implementation is noncompulsory rather than obligatory (van
Leeuwen, 2015).
CONSTRAINTS OF FLAG, PORT AND COASTAL STATES 5

Disparity this with the command recognized by the presently embraced Torture
Convention. Functionally, a port state is similar to a state that discovers an oppressor within its
terrain must declare authority. Similarly, its power is not minor to the influence of any other
state. While it is allowed to deport the torture to other states, it may also decline repatriation and
bring the trial itself. The motive behind many restrictions on authority outside the flag state is the
interest of marine states in free navigation. Interestingly, this interest in free navigation has been
accorded heavyweight by the United States than the attention regarding regional dominion of
other states. The United States declares that it can monitor conduct happening in other sovereign
nations if that conduct influences the US.

For instance, piracy was the first offense to be recognized in marine. Any republic could
capture and indict pirates. The ban of piracy and suit was not reflected as trespass sign on the
regional sovereignty of any other states. If any activities instituted piracy on the high seas was
done in other states, worldwide authority did not occur. Contrarily, currently, the US appears to
take the contradictory tactic. It shows a bigger will to exercise prescriptive and enforcement
authority within another country's boundaries than to hinder with the liberty of navigation on the
high oceans.

With few exceptions, UNCLOS III in expounding the jurisdictional competence of

coastal countries does not address for an evaluation of either the impact of rules on liberty of
navigation or strength of the coastal state interest in specific types of regulations. However, the
convention outlines coastal state power in terms of huge geographic regions of the waters.
Therefore, in its provision on the regional sea, the pact makes no assertions to differentiate
between the guidelines that deny cleared passageway altogether. For instance; preventing the
passage of vessel with lethal matters and hamper passageway, by prescribing stricter CDEM
guidelines (King, 2013). 

As earlier discussed, this generalization means that the convention does not offer a
conclusive answer to a number of concerns. It also denotes that where the conventions do offer
flawless responses, setting forward bright-line experiments, those reactions are not prospective to
be precisely tailored to the solid interest involved. For instance, the conventions forbid the
obligation of nationwide CDEM principles in the EEZ without respect to either is very huge and
CONSTRAINTS OF FLAG, PORT AND COASTAL STATES 6

the marine state’s attention is low, the agreement impedes the coastal state from working beyond
generally recognized global standards and rules (Visbeck et al., 2014).

Oceanic states have been futile to show attention in developing novel worldwide
standards and rules that take into account legitimate coastal state apprehensions. Similarly, the
convention does not give a sign of how the opposing rights should be acquiescent in the setting
of specific concerns, such as the way of vessel over the subtle coral reefs (Ferrario et al., 2014).

Another problem apart from the rules and standards are detecting vessel-sources contaminating
violations and determining what really occurred which is one of the key hindrances to
implementation. It is very hard to notice defilements and decide who is accountable, specifically
in great seas zones such as EEZ. If the marine is serious in governing contamination, they need
to invent and motivate more easily and effectively used analytical techniques. The challenges
are to pinpoint those exploratory measures that least inhibits with the navigational benefits
(Sage-Fuller, 2013). 

Conclusion
To the scope that UNCLOS III does not equilibrate the interest of coastal and marine
states justly, it will not offer a rigid rule for the ocean. If it is not a steady command, the query is
whether the equilibrium set out in the UNCLOS III will be reviewed by independent declarations
of authority by coastal states, capitalizing on the conflict and instability, or over the many-sided
discussions. Given this certainty, it is in the welfares of marine and coastal states to collaborate
in advancing improved ways of shielding the aquatic situation. The agreement offers a worthy
beginning with more detailed international standards and guidelines, in more robust terms, the
competing interest among states, so that development of coastal state specialist are embarked on
in a systematic way with the least load on navigation (Juda, 2013). Additionally, the number of
observing gears could likely assist the coastal states to keep trajectory of what is happening in
their seawaters and therefore minimize the requirement to take invasive measures. The gears may
comprise the vessels registries; transponders that can transmit info on the vessel's location
automatically; and reporting needs concerning, for instance, the ship's entrance into a certain
position, regions and path. The above checking gears have increasing prominence in the fisheries
setting, where the coastal states have been capable to apply their regulation of EEZ fisheries
access as a negotiating mark to have flag state acquiescence (Lam & Notteboom, 2014). In the
CONSTRAINTS OF FLAG, PORT AND COASTAL STATES 7

absence of flag state consent, nevertheless, numerous views of these controlling needs are
inconsistent with the ancient high sea freedom of navigation.

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