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Copyright (c) 2002 Trustees of Boston University

Boston University Law Review

June, 2002

82 B.U.L. Rev. 767

LENGTH: 20822 words

NOTE: PROTECTING "SOVEREIGN RIGHTS": THE CASE FOR INCREASED COASTAL STATE JURISDICTION
OVER VESSEL-SOURCE POLLUTION IN THE EXCLUSIVE ECONOMIC ZONE

NAME: Christopher P. Mooradian*

BIO: * I would like to thank Professor Daniel G. Partan, Boston University School of Law,
for his insight and much-welcomed comments on an earlier draft of this Note. I also would
like to thank the editors and staff of the Boston University Law Review, especially
Christopher Jennings, Brett Budzinski, and Howard Lipton for their suggestions and hard
work in preparing this Note for publication. I also would like to thank my wife and children
for their patience, not only while I wrote this Note, but also throughout the three years of
law school. It goes without saying that responsibility for all remaining errors in this Note,
both in substance and form, remains solely with me.

SUMMARY:
... Like the Torrey Canyon, Amoco Cadiz, and Exxon Valdez oil spills before it, this maritime
catastrophe briefly refocused public attention on vessel-source pollution in the maritime
environment. ... Notwithstanding these expansions of coastal state jurisdiction, the
UNCLOS framework, in large part, maintains the existing balance and tension that
historically has existed between maritime and coastal States with respect to jurisdictional
control over the ocean and the activities conducted thereon. ... This is not to say, however,
that in limiting coastal state prescriptive jurisdiction UNCLOS in some way prohibits further
expansion of coastal state jurisdiction - either prescriptive or enforcement - through
newly developed customary international law. ... Finding themselves inadequately protected
by the existing framework, coastal States, that is to say, non-port state coastal States,
may seek to unilaterally increase their own prescriptive and enforcement jurisdiction
through customary international law principles, thus eroding the stability and balance that
UNCLOS seeks to preserve. ... Given that the two other sources of prescriptive jurisdiction
theoretically could serve as the basis for expanding coastal state jurisdiction over vessel-
source pollution in the EEZ, a second question must be asked: has there been a change in
customary international law that would allow coastal States to assert such jurisdiction? ...
Admittedly, coastal States' assertions of prescriptive jurisdiction over vessel-source
pollution are in tension with the limited prescriptive jurisdiction afforded such States by the
UNCLOS framework. ...  

TEXT:
 [*768] 

Introduction

1
  
On December 12, 1999, the Maltese-flagged tanker Erika sank off the Coast of France,
spilling between 12,000 and 15,000 tons of fuel oil. n1 Like the Torrey Canyon, n2 Amoco
Cadiz, n3 and Exxon Valdez n4 oil spills before it, this maritime catastrophe briefly
refocused public attention on vessel-source pollution in the maritime environment. The
spill quickly prompted calls - primarily from France, the country most directly affected
by the spill - for new measures to prevent pollution at sea. France proposed a variety
of measures, including an acceleration of the phase-in of double-hulled tanker
requirements, requirements that tankers transporting hazardous cargoes identify
themselves and their routes when traveling within 200 nautical miles of the European
coast, and increased safety standards. n5 On September 6, 2000, European Parliament
deputies voted to accept compromise measures to reduce vessel-source pollution. n6
Among the measures that European Union deputies adopted were requirements that
European ports and marinas provide waste collection facilities and monitoring
programs to identify tankers that illegally flush their tanks at sea. n7

Although France was not successful in obtaining the more austere measures that it
sought, these events - the spill and the subsequent governmental reaction - highlight
two continuing truths about preventing vessel-source pollution in the ocean space.
First, catastrophic oil spills galvanize public opinion and increase calls for States to
take measures to prevent vessel-source discharge. n8 Second, despite the fact that the
catalytic event is often an  [*769]  accidental discharge, the actions that governments
take are often designed to prevent operational - that is, intentional - discharges of
pollution. n9 These seemingly paradoxical truths exist in part because there are only a
limited number of ways in which States can prevent accidental discharges. It is true
that efforts such as vessel design, manning, and crew-training requirements can
reduce the likelihood that accidents will occur. Such measures also help ensure that
when accidents do occur they result in less environmental damage. Similarly, various
traffic systems help prevent collisions between vessels that might otherwise lead to
accidental discharges. Nonetheless, given the inhospitable nature of the marine
environment, it is unlikely that mankind will ever completely eliminate marine
disasters. One would surmise that it would be practically impossible to completely
eliminate, through legislative edict, human error and the incalculable element of
misfortune. On the other hand, although their effectiveness remains somewhat of an
open question, n10 a panoply of legal measures is available to States to prevent
operational discharges. These legal measures are limited only by the extent to which
existing jurisdictional perimeters limit States' actions.

This Note focuses on coastal state concerns with respect to operational vessel-source
pollution in the Exclusive Economic Zones ("EEZ"). n11 Part I of  [*770]  this Note
briefly describes the problem presented by vessel-source operational discharges and
the existing international environmental law framework with respect to vessel-source
pollution. Part II explores the possible bases of coastal state jurisdiction, principally
prescriptive, n12 over vessel-source pollution and  [*771]  discusses various theoretical
bases in customary international law for increasing coastal state jurisdiction. Part
III identifies examples of increased coastal state jurisdiction over vessel-source
pollution in the EEZ and discusses whether there has been a change in customary
international law by which coastal States may assert increased jurisdiction over
vessel-source pollution in the EEZ. Part III also explores how coastal States' attempts
to expand their jurisdiction continues to challenge the existing international law of the
sea framework.

Part IV, building on arguments advanced by Professor Daniel Bodansky in 1991, n13

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 argues that the international community should respond to coastal state concerns by
adopting new rules that increase coastal state prescriptive jurisdiction over vessel-
source pollution in the EEZ. n14 Drawing on the principles articulated in the recently
developed mandatory ship reporting systems, Part IV posits that the international
community could establish a set of objective criteria - a new set of "generally accepted
international rules and standards," so to speak - under which coastal States could
assert expanded prescriptive jurisdiction over vessel-source discharges in the EEZ.
Such a framework would not only give coastal States more confidence in the
international regulatory system's ability to protect their interests, but would also
preserve the regulatory system's - principally, the International Maritime
Organization's ("IMO") n15 - ability to control the pace and degree of expanded coastal
state jurisdiction. Lastly, this Note concludes that by responding to coastal state
concerns in this fashion, the international community can make substantial progress in
preventing damage to the international marine environment in a way that will help
ensure the continuing stability of the existing legal framework.

I. Background

A. Operational Discharges: A Continuing Source of Vessel-Source Pollution and

Regulation
 
There are three principal sources of vessel-source pollution in the marine environment:
accidental (unintentional), operational (intentional), and  [*772]  emissions (vessel-
source air pollution). n16 Although accidental discharges such as the Exxon Valdez and
Erika oil spills are the most publicly visible signs of vessel-source pollution and are the
events most likely to lead to substantial demands for increased regulation, operational
discharges remain a significant source of vessel-source pollution. n17 While it is difficult
to accurately quantify the magnitude of operational discharges, and existing estimates
vary, operational discharges account for at least 400,000 tons of oil discharged into
the sea annually. n18 By some estimates, operational discharges account for anywhere
from two-thirds to 85% of all vessel-source oil discharged into the oceans. n19 While it
is true that operational discharges are the object of longstanding, extensive regulation,
not to mention an enduring topic of legal scholarship, n20 they are regulated more than
accidental discharges primarily  [*773]  because only so much can be done to prevent
accidental discharges. Intentional discharges, however, appear to be more governable
by prescriptive rules. Lastly, other significant sources of oil pollution in the ocean, such
as land-based pollution, are much more difficult to regulate due to issues related to
national sovereignty, economic development, domestic political opposition, and
national security. n21

B. Maritime-Coastal State Jurisdiction: Inherent Conflict Between Users and Non-

Users
 
Beginning with Hugo Grotius' elaboration of the doctrine of the open seas and the
principle of freedom of the seas in Mare Liberum, n22 the international law of the sea
has given flag States primary - bordering on exclusive - jurisdiction to regulate vessel
activity. n23 Although freedom of the seas has long been limited by the concept of the
territorial sea, it was not until the mid-twentieth century that States began asserting
greater jurisdiction over larger parts of, and over more and varied activity upon, the
ocean. n24 The international law of the sea has always reflected a tension between
maritime States - principally flag States - that use the ocean space and coastal States
- i.e., those States that border the ocean space. n25 The balance in jurisdictional
[*774]  competences established in customary international law has largely favored

3
 the maritime States, with coastal States having jurisdiction over activity within
limited portions of the ocean, namely the territorial sea, and over only very limited
activity upon the ocean beyond the territorial sea, namely piracy and slave trading. n26
The primacy of flag state jurisdiction has been consistently  [*775]  affirmed in
treaties such as the Convention on the Territorial Sea and the Contiguous Zone n27 and
the Convention on the High Seas. n28

With respect to environmental protection specifically, this jurisdictional balance masks

an inherent conflict between coastal States and maritime States. n29 Inadequate flag
state regulation of vessels, the increased use of flags of convenience, and the inability
of the IMO to substantially increase flag state implementation of existing standards are
all factors that have led many coastal States to initiate actions through port state
control regimes to better ensure protection of their marine environments. n30

 [*776] 

C. The Existing International Legal Regime Regulating Vessel-Source Pollution

 
As knowledge and awareness of the ecological consequences of marine pollution
increased, coastal States increasingly exercised jurisdiction over marine pollution
through international conventions and organizations prescribing regulations, and
through port state control enforcement regimes. n31 UNCLOS, in turn, represented a
monumental effort both to codify much of the existing customary international law of
the sea and to establish new treaty law covering topics that had been inadequately
addressed by then existing customary international law. n32 The UNCLOS legal
framework with respect to marine pollution and marine environmental protection
generally, and vessel-source oil pollution specifically, attempted to resolve the tension
between the flag and coastal States by clarifying the States' respective jurisdictional
rights and responsibilities. n33

UNCLOS Part XII, "Protection and Preservation of the Marine Environment," is the
principal section addressing vessel-source pollution. n34 Part XII establishes different
jurisdictional competences over vessel-source pollution according to the three general
categories of States - flag, coastal, and  [*777]  port n35 - that have varying levels of
jurisdiction across the different maritime zones. n36 This framework attempts to balance
the competing interests of the three categories of States. n37 Although UNCLOS does
provide expanded coastal state jurisdiction over vessel-source oil pollution in the
EEZ, the conventional interpretation is that the Convention also places significant
limits on that jurisdiction. n38 In terms of expanding coastal state jurisdiction,
UNCLOS allows coastal States to prescribe rules for environmental protection
applicable to vessels operating in the EEZ, but they must adopt regulations that give
effect to international standards. n39 Under UNCLOS coastal States also have greater
enforcement jurisdiction over vessel pollution in the EEZ than was thought to exist
under pre-UNCLOS customary international law. n40 Notwithstanding these expansions
of coastal state jurisdiction, the UNCLOS framework, in large part, maintains the
existing balance and tension that historically has existed between maritime and
coastal States with respect to  [*778]  jurisdictional control over the ocean and the
activities conducted thereon.

UNCLOS also expands the notion of port state jurisdiction to allow port States to
exercise enforcement jurisdiction over pollution occurring on the high seas or in other
States' waters. n41 Article 218 specifically provides that when a vessel is voluntarily
within a port, the port State may investigate pollution and institute proceedings "in

4
 respect of any discharge from that vessel outside the internal waters, territorial sea or
exclusive economic zone of that State in violation of applicable international rules and
standards established through the competent international organization or general
diplomatic conference." n42 It is generally agreed that the discharge standards that the
port States can enforce are those articulated in the International Convention for the
Prevention of Pollution from Ships (MARPOL 73/78). n43

Extending port state jurisdiction in this manner does increase the likelihood that
operational discharges will result in some sort of governmental enforcement action. It
does not, however, completely foreclose the possibility that a discharge will go
unregulated. First, port and coastal States' interests are not always mutually
inclusive. Second, although UNCLOS, Article 218(3), indicates that a port State has an
obligation to investigate discharges upon an affected State's request, that obligation is
modified by the term "as far as practicable." n44 Thus, the port State has no actual
treaty-imposed duty to enforce - through prosecution - the regulations against a
violating vessel.

More generally, UNCLOS emphasizes, as a principal value, the adoption of international

standards with respect to vessel-source pollution. n45 In doing so,  [*779]  UNCLOS
seeks to ensure general harmonization of States' national standards and international
standards. n46 Accordingly, coastal States face limitations as to the rules that they may
unilaterally prescribe with respect to vessel-source pollution. With respect to the EEZ,
coastal States may adopt "laws and regulations for the prevention, reduction and
control of pollution from vessels conforming to and giving effect to generally accepted
international rules and standards established through the competent international
organization or general diplomatic conference." n47 Thus, through these rules of
reference - "generally accepted international rules and standards" ("GAIRAS") - the
international community controls coastal States' ability to prescribe rules. n48 A
coastal State, however, may adopt standards more stringent than GAIRAS for its EEZ
when GAIRAS are "inadequate to meet special circumstances" and the State has

 
reasonable grounds for believing that a particular, clearly defined area of their
respective exclusive economic zones is an area where the adoption of special
mandatory measures for the prevention of pollution from vessels is required for
recognized technical reasons in relation to its oceanographical and ecological
conditions, as well as its utilization or the protection of its resources and the particular
character of its traffic ... . n49

 
Adoption of such regulations can only be done with the IMO's approval. n50 As it
presently exists, therefore, UNCLOS places substantial limits on a coastal  [*780] 
State's ability to prescribe the regulations it views as necessary and appropriate to
protect its EEZ. n51 This is not to say, however, that in limiting coastal state
prescriptive jurisdiction UNCLOS in some way prohibits further expansion of coastal
state jurisdiction - either prescriptive or enforcement - through newly developed
customary international law. Reading UNCLOS in such a way does not appear to be
supported by the UNCLOS text itself. Further, reading the convention in such a way
would require finding significant ambiguity in the text and "context" of the convention.
n52
That UNCLOS does not freeze coastal state jurisdiction makes the customary
international law bases of jurisdiction, discussed below, all the more important.

Although the expanded jurisdiction under UNCLOS is a significant advancement in the

5
 prevention of vessel-source pollution, it is most effective when the coastal and port
State are one in the same. Where two States are involved, it is less likely that
enforcement procedures will be taken, thus leaving coastal States without adequate
legal protection. Finding themselves inadequately protected by the existing framework,
coastal States, that is to say, non-port state coastal States, may seek to unilaterally
increase their own prescriptive and enforcement jurisdiction through customary
international law principles, thus eroding the stability and balance that UNCLOS seeks
to preserve.

II. Theoretical Bases for Increased Coastal State Jurisdiction Over Vessel-Source
Pollution
 
At first glance it might appear irrelevant to discuss the theoretical bases for increased
coastal state jurisdiction over vessel-source pollution, given that existing treaty law
extensively regulates the subject. There are, however, four reasons why such a
discussion is appropriate. First, treaty, or conventional, international law can, and
often does, overlap with customary international law; that is to say, an international
law rule can exist both in treaty and customary international law. n53 In fact, the United
States has relied on the parallel existence in customary international law of many of
the specific UNCLOS provisions, rather than becoming a party to the Convention. n54
[*781]  Second, if coastal States determine that international treaty law does not
afford adequate protection of their EEZs, they may seek to expand their jurisdiction
through unilateral action based on customary international law doctrines. Third, those
States that have already asserted jurisdiction not authorized by UNCLOS appear to
have done so based on customary international law doctrines and general international
law jurisdictional principles. For example, both Canada's Arctic Waters Pollution Act of
1970 n55 and the United States' Oil Pollution Act of 1990 n56 can be seen as assertions of
jurisdiction based on the protective principle. n57 Finally, by looking to the theoretical
bases for increased coastal state jurisdiction, the international community might
find a foundation - perhaps inspiration would be a better description - upon which it
could modify the existing UNCLOS framework so as to accommodate coastal state
concerns, while preserving the overall stability and balance of the UNCLOS system.

Although it is widely accepted that the general concept of the EEZ and its basic
governing rules have become part of customary international law, some of the detailed
provisions may not be reflected in customary international law. n58 Moreover, the exact
legal status of the EEZ continues to be debated, with most commentators regarding
the EEZ as a "separate functional zone of a  [*782]  sui generis character, situated
between the territorial sea and the high seas." n59 Due to the unique nature of the EEZ,
one commentator has indicated that the EEZ is "not altogether free from territorial
elements" and that jurisdiction over the EEZ is based on a "quasi-territorial principle."
n60
Notwithstanding the notion that coastal state jurisdiction could be based on a
quasi-territorial concept, coastal States may find a basis for asserting jurisdiction over
activity occurring in the EEZ - e.g., oil discharges - through the principle of
extraterritorial jurisdiction. That principle, as articulated by the Permanent Court of
International Justice, is as follows:

 
Far from laying down a general prohibition to the effect that States may not extend
the application of their laws and the jurisdiction of their courts to persons, property
and acts outside their territory, it leaves them in this respect a wide measure of
discretion which is only limited in certain cases by prohibitive rules; as regards other

6
 cases, every State remains free to adopt the principles which it regards as best and
most suitable.
 
... .

 
In these circumstances, all that can be required of a State is that it should not
overstep the limits which international law places upon its jurisdiction; within these
limits, its title to exercise jurisdiction rests in its sovereignty. n61

 
States seeking to extend their prescriptive jurisdiction through extraterritorial
jurisdiction might do so through the principles of effects-based, protective, or universal
jurisdiction. Although both the effects-based and protective principles have their roots
in other fields of the law, each is applicable, and in fact has been applied to some
degree, in the maritime context.

 [*783] 

A. Coastal State Jurisdiction Through the Effects Principle of Extraterritorial

Jurisdiction
 
Effects-based prescriptive jurisdiction occurs when a State prescribes laws concerning
acts that take place outside the State's territory but have legally "significant effects"
within the State's territory. n62 In American law, the modern formulation of the effects
principle was first substantially developed in the economics field when Judge Learned
Hand, writing in United States v. Aluminum Co. of America, declared the "settled
law ... that any state may impose liabilities, even upon persons not within its
allegiance, for conduct outside its borders that has consequences within its borders
which the State reprehends." n63 Under the Restatement's view, the actor's intent to
have effects on the United States is a factor, although not a necessary one, in
considering whether to extend jurisdiction extraterritorially. n64 Additionally,
prescriptive jurisdiction should not be exercised if doing so would be unreasonable, n65
that it is, it should be exercised according to the principle of international comity.
Admittedly, assertion of prescriptive jurisdiction under the effects principle is highly
controversial. n66 Effects-based jurisdiction nonetheless could explain many of the
current assertions of increased coastal state jurisdiction over the EEZ that are not
authorized by UNCLOS.

Although used substantially in antitrust litigation, effects jurisdiction has significant

potential application for the protection of the marine environment. n67 For example, a
State with a substantial aquaculture industry dependent on the EEZ might be justified
in prohibiting the discharge of oil by vessels on the high seas if the State could prove
that the vessel-source oil pollution had an effect on the cultivation of the marine
species, which in turn had an impact on  [*784]  the economy of the prescribing State.
Key requirements for asserting extraterritorial jurisdiction in this manner would include
identifying a "substantial and bona fide connection between the subject-matter and the
source of the jurisdiction," adhering to the principle of non-intervention in another
State's domestic or territorial jurisdiction, and applying the principle with "elements of
accommodation, mutuality, and proportionality" - in other words, comity. n68 States
might also make the more attenuated argument that given the legal attributes of the
territorial sea, effects jurisdiction over activity occurring within the EEZ should be
allowed when there is a subsequent impact on the coastal State's territorial waters.

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 Such an argument might be more acceptable, however, where unique geographic or
oceanographic conditions exist, such as ocean currents, that cause oil discharged in
the EEZ to accumulate in, and have effects on, the territorial sea. Nonetheless,
establishing effects-based jurisdiction using the territorial sea is more difficult than
establishing effects-based jurisdiction based on the effects felt within the coastal
State's actual territory.

The United States has used extraterritorial prescriptive - and enforcement n69 -
jurisdiction to extend its jurisdiction in traditional admiralty and maritime fields, as
well as in the marine environmental context. n70 In some cases this assertion of
extraterritorial jurisdiction is explicit in legislative language. n71 For example, the
Congress has extended the United States Coast Guard's investigative powers
concerning maritime accidents to certain portions of the high seas. n72 And at least one
court has upheld these powers, notwithstanding a potential conflict with international
law, which would  [*785]  ordinarily give the flag State exclusive jurisdiction over the
incident. n73

An example of effects-based prescriptive and enforcement jurisdiction that is closer to

the type of jurisdiction that would be exerted in the vessel-source pollution context is
Canada's enforcement actions concerning high seas fisheries stocks that are on the
verge of collapse. n74 Because of the significant effects that a collapse of certain
fisheries stocks would have on the Canadian domestic economy, these actions can
rightly be characterized as an assertion of jurisdiction based on the effects principle.

The laws against unauthorized broadcasting - pirate radio - developed by European

Nations in the 1960s address similar jurisdictional issues over acts committed on the
high seas. Although such laws are often identified as an exercise of objective territorial
jurisdiction, n75 they can be seen quite persuasively as conceptually rooted in the
effects principle of extraterritorial jurisdiction. n76 UNCLOS later codified this developing
international law and  [*786]  now provides affected States with both prescriptive and
enforcement jurisdiction over unauthorized radio broadcasts originating on the high
seas. n77 The distinction between objective territorial jurisdiction and effects
jurisdiction, however, may be only one of degree. It is generally accepted that
objective territorial jurisdiction may be applied when "any essential constituent
element of a crime is consummated on state territory." n78 If the effect in question
"cannot be classified as a constituent element, a State would have to resort to the
effects principle instead of the objective territorial principle." n79

UNCLOS's provisions concerning unauthorized broadcasting appear to reflect both the

objective territorial and the effects-based principles. UNCLOS Article 109(3)(d)
authorizes jurisdiction by a State "where the transmissions can be received," n80 while
Article 109(3)(e) gives jurisdiction to "any State where authorized radio
communication is suffering interference." n81 Article 109(3)(d), therefore, reflects the
objective territorial principle more clearly, as the receipt of transmissions is analogous
to the receipt of a cannonball - fired from one State or an area outside the sovereignty
of any State - by the State exercising jurisdiction. n82 It is less clear that the jurisdiction
authorized by Article 109(3)(e) is based on the objective territorial principle because it
does not indicate the degree of interference necessary for a State to invoke the
[*787]  jurisdiction. Rather, it allows a State to assert jurisdiction when there is
interference, apparently of any type or degree. n83 The triggering activity, in this case,
appears to be analogous to a cannon ball being shot past the State's territory, without
actually breaking the territorial plane, and having a subsequent affect. Because even
minimal or indirect interference with a State's authorized radio communication

8
 presumably could be a basis for jurisdiction under the UNCLOS provisions, Article
109(3)(e) can be viewed as embodying the effects-based principle of jurisdiction.
Irrespective of whether laws against pirate radio broadcasts are correctly viewed as an
exercise of jurisdiction based on the objective territorial principle or the effects
principle, they are significant in that they show that the international community is
willing to allow States to exercise extraterritorial prescriptive and enforcement
jurisdiction over vessels on the high seas, even when the exercise of that jurisdiction
arguably has an impact on freedom of the seas. n84

B. Coastal State Jurisdiction Through the Protective Principle of Jurisdiction

 
The protective, or security, principle of jurisdiction is a longstanding principle allowing
States to "exercise jurisdiction over aliens who have committed an act abroad which is
deemed prejudicial to the security of the particular state concerned." n85 Although the
protective principle has been applied to a variety of political offenses, the principle is
not confined to political acts and has been applied to offenses involving a nation's
currency or seals (e.g., passports or public documents), immigration, and economic
activities. n86 Although application of the protective principle is well established in
international law for the issues identified above, it is unclear how far the  [*788] 
principle may be applied to other areas of international law. n87 More recently, States
have extended the principle to more controversial subjects such as drug trafficking. n88
As noted earlier, protective jurisdiction is also evident in the vessel-source pollution
context, as exemplified by Canada's 1970 Arctic Waters Pollution Prevention Act and
the United States' Oil Pollution Act of 1990. n89

States are increasingly defining the notion of national security in new ways, no longer
exclusively in terms of military or naval security, and they are broadening the concept
to address issues involving organized crime, economic issues, and in some cases
environmental concerns. n90 As EEZ resources play an ever-increasingly important role
in States' economic well-being, and as States place greater emphasis on both
economic and ecological security, States will continue to redefine their concept of
national security. Subsequently, these States will likely turn increasingly to the
protective principle as a source of legal jurisdiction to protect their EEZs from a variety
of activities, including vessel-source pollution. Given the continually developing nature
of international law, UNCLOS cannot be considered the final word on what constitutes
a State's security interest under the protective principle with respect to the ocean and
its uses. n91

 [*789] 

C. Coastal State Jurisdiction Through the Universality Principle

 
Unlike the effects and protective principles of jurisdiction, universal jurisdiction has a
long-standing and uncontroversial association with the law of the sea. This association
arose in the context of piracy. n92 Historically, however, there has not been a consistent
legal definition of piracy, and individual States have generally developed municipal law
definitions of piracy to meet their different interests and goals. n93 Although UNCLOS
codifies an international law definition of piracy, n94 distinctions between the
international  [*790]  law definition and many municipal law definitions remain. n95
Notwithstanding this lack of harmony between international law and municipal law
definitions of piracy, the international community has accepted universal jurisdiction to
enforce the international law against piracy. n96 The international community has also
generally accepted universal jurisdiction over war crimes, genocide, and the

9
 suppression of slavery, n97 although the entire international community's commitment
to such rules is sometimes dubious. States also have relied on universal jurisdiction to
prosecute hijacking and drug trafficking offenses, although this use of universal
jurisdiction is more controversial and not as widely accepted as are more traditional
applications. n98

By looking at the range of acts to which universal jurisdiction has been applied, one
can deduce a thread of common elements that appear in the exercise of such
jurisdiction. First, thus far all acts subjected to universal jurisdiction have an element
of violence, which by implication includes an intent - i.e., mens rea - requirement. n99
Presumably, one does not accidentally become a pirate, participate in genocidal
activities, or engage in the commercial enterprise of slavery. Second, universal
jurisdiction is often, though not always, extended to areas where there are no other
bases for jurisdiction. For example, universal jurisdiction over piracy, as defined by
[*791]  international law, exists because it occurs on the high seas by a stateless
vessel and because there is no other basis for a State to exercise jurisdiction over such
vessels. n100 For example, if a U.S. vessel on the high seas conducted a piratical act,
then the United States would have flag state jurisdiction. Similarly, if a stateless
vessel engaged in "piracy" in the territorial waters of the United States, then the
United State would have territorial jurisdiction. If, on the other hand, the scenario
included a Chinese-flagged vessel engaging in piratical activities in the United States'
territorial waters - or vice versa - China and the United States would likely have
concurrent jurisdiction. Although concurrent jurisdiction would exist, any action that
China would take inside the United States' territorial waters would constitute a breach
of United States sovereignty; therefore, China would have to take enforcement action
on the high seas, under a flag state jurisdictional claim. Either way, however, one
State or of the other would have jurisdiction to enforce laws prescribing the piratical
activities, although such activities would not be piracy as defined in international law.
Third, States exercise universal jurisdiction where the circumstances, including the
nature of the act, justify universal jurisdiction as a matter of public policy, n101 or
because the act, usually identified as a crime, is "particularly offensive to the
international community as a whole." n102

With respect to environmental issues, in 1991 the International Law Commission

adopted the Draft Code of Crimes Against the Peace and Security of Mankind, which
included universal jurisdiction over individuals responsible for willful and severe
damage to the environment. n103 The controversy surrounding the extension of
universal jurisdiction to these acts, however, has  [*792]  thus far prevented
international agreement on the proposed code. n104 Although there is nothing that
prevents the extension of universal jurisdiction to acts affecting the environment,
including vessel-source oil discharge, a necessary precondition for determining that
this legal basis for exercising such jurisdiction exists in customary international law is
the presence of consistent state practice and opinio juris. Accordingly, there appear to
be two contexts in which universal jurisdiction concerning environmental pollution
might be found to exist. First, if the international community were to view threats of
environmental damage as threats to the international order - in the same vein as it
views piracy and war crimes - then universal jurisdiction might be found to exist. n105
Second, consistent state practice and opinio juris can lead to the formation of universal
jurisdiction with respect to an activity - for example, hostage taking - that does not
quite rise to the level of a threat to international order. n106 In the environmental
context, it is theoretically possible that States might come to view unnecessary
intentional acts of pollution as offensive to international public policy and thus subject

10
 to regulation through universal jurisdiction, notwithstanding the absence of a threat to
the international order. "Unnecessary" intentional acts of pollution are acts for which
economically viable alternatives exist. For example, whereas operational oil discharges
might be viewed as unnecessary, some level of air pollution would be viewed as
necessary in that it is not currently feasible to completely eliminate air pollution
emissions.

Nonetheless, because of the overwhelming state interest in freedom of the seas and
flag state sovereignty over vessels, the international community has yet to raise
environmental concerns to the level that would justify universal jurisdiction over
vessel-source pollution. n107 This is not to say, however, that  [*793]  the international
community might not do so in the future. The same factors that might lead States to a
consensus as to the appropriateness of applying the protective principle to
environmental damage in the EEZ, might similarly lead States to develop a consensus
as to the acceptability of universal jurisdiction as a basis for protecting the marine
environment from vessel-source pollution, at least in those cases where the activity
resulting in environmental damage provides few benefits. Thus, international law
might view the intentional discharge of oil in routine operations as offensive to public
policy because of the costs and benefits of the operational discharges relative to the
resulting environmental harm, the externalization of those costs to coastal States,
and the viability of alternatives, such as discharging the oil residue into collection
tanks for processing. It is worth noting, lastly, that although universal jurisdiction over
piracy has a long history, the extension of universal jurisdiction over other activity is
relatively new, having developed only in the last half century. n108 We are thus likely to
see more extensions of this principle of jurisdiction in the future, although immediate
extension in the marine environmental context is very unlikely.

D. Coastal State Enforcement of Its Laws

 
Assuming, arguendo, that a coastal State could exercise prescriptive jurisdiction over
vessel-source pollution in the EEZ under either the effects, objective territorial, or
protective principles of jurisdiction, a secondary question follows as to whether that
same coastal State would have jurisdiction to enforce its laws. Admittedly,
jurisdiction to enforce is far more controversial than merely jurisdiction to prescribe
because measures allowing at-sea enforcement would be a significant infringement on
freedom of navigation. n109 Coastal state enforcement of its prescriptive rules would
only be allowed if international law allowed such enforcement. Therefore, a change in
international law, either through customary international law or treaty law, would be a
prerequisite to coastal state enforcement. n110

UNCLOS already sanctions limited coastal state enforcement in certain cases. n111
Likewise, UNCLOS Article 218 gives port States jurisdiction to  [*794]  enforce
"applicable international rules and standards" for vessel-source pollution discharged in
another State's EEZ, at the request of the affected State. n112 The prescriptive rules that
the port State may enforce are the applicable international laws, as determined by the
competent organization - the IMO - or general diplomatic conference. n113 Thus, if
international law changed so as to give coastal States greater jurisdiction to prescribe
rules governing vessel-source pollution discharge in the EEZ, it logically follows that
the new prescriptive rules could become generally accepted rules and standards under
Article 220(3) or "applicable international rules" under Article 218. In this way, the
new prescriptive rules could be given effect within the existing enforcement provisions
of UNCLOS, without increasing coastal state enforcement jurisdiction as defined by
UNCLOS. In other words, given the existing enforcement framework under UNCLOS, a

11
 change in the coastal States' prescriptive jurisdiction would seem to be sufficient to
give coastal States greater control over measures to prevent pollution in their EEZs.

As this section has articulated, there is a theoretical basis for expanded coastal state
prescriptive jurisdiction - and flowing through it, perhaps enforcement jurisdiction -
drawn from the objective territorial, effects, or protective principles of jurisdiction.
Moreover, there is a theoretical, albeit less likely, basis for asserting universal
jurisdiction over vessel-source pollution. Currently, however, no state practice exists
that would support finding a customary international law principle of universal
jurisdiction over vessel-source pollution in the EEZ. Given that the two other sources
of prescriptive jurisdiction theoretically could serve as the basis for expanding coastal
state jurisdiction over vessel-source pollution in the EEZ, a second question must be
asked: has there been a change in customary international law that would allow
coastal States to assert such jurisdiction?

III. Toward a Rule of Customary International Law?

 
Admittedly, coastal States' assertions of prescriptive jurisdiction over vessel-source
pollution are in tension with the limited prescriptive jurisdiction  [*795]  afforded such
States by the UNCLOS framework. Nonetheless, such assertions are consistent with
the long-term historical trends in international law of the sea. Both under pre-UNCLOS
customary international law of the sea and under the specific provisions of UNCLOS,
the law of the sea framework has slowly shifted the balance of jurisdictional
competence from exclusive flag state jurisdiction to increased coastal and port
state jurisdiction. n114 Changes in the framework were the result of a combination of
factors, including the emergence of new, post-colonial states with different marine
interests and advances in marine-related technology. n115 Thus, following World War II,
the framework began to be modified, and coastal state jurisdiction increased
through the developments of exclusive fishery zones, exclusive economic zones, and
the extension of greater coastal state jurisdiction over seabed resources. n116

The first dramatic shift in this balance in the environmental context was the assertion
of increased jurisdiction over fisheries by States such as Iceland in the early 1970s.
Thus, even pre-UNCLOS international law was opening to such expansions of
jurisdiction. In the fisheries management context, the International Court of Justice
("ICJ"), although holding that Iceland's unilateral extension of a fisheries zone was not
opposable to the United Kingdom and inconsistent with existing international law with
respect to the "due regard" standard, n117 expressed the view that the concept of
preferential rights was not a static concept and was subject to change. n118 The Court
further expressed the view that international law, at least to the extent it involved
fisheries, had advanced such that "the former laissez-faire treatment of the living
resources of the sea in the high seas has been replaced by a recognition of a duty to
have due regard to the rights of other States and the needs of conservation for the
benefit of all." n119

 [*796]  Although these changes have mostly retained the primacy of the flag state
jurisdiction and freedom of the seas, the shift has expanded coastal States'
jurisdiction. As coastal States increasingly realize the importance of the ocean
resources contained within their EEZs and the importance of protecting those
resources, it is likely that disputes between coastal and maritime States will increase.
n120
Coastal States desiring to protect their EEZ resources may find that the existing
conventional framework is inadequate to protect their interests. These States might
therefore unilaterally assert expanded jurisdiction, drawing on the customary

12
 international law principles identified above. Some States have already done so; this,
in turn, threatens to realign the jurisdictional balance that UNCLOS creates.

Unlike international treaty law, which is both definable and readily identifiable,
customary international law is easier to define than it is to identify. The Statute of the
International Court of Justice defines customary international law as "international
custom, as evidence of a general practice accepted as law." n121 For a rule of customary
international law to develop there must be uniform and consistent state practice that is
conducted out of a sense of legal obligation , or "opinio juris." n122 Determining whether
a rule of customary international law in fact exists is easier said than done, and
conducting the detailed level of analysis necessary to accurately say whether  [*797] 
there has been a development in customary international law that would allow greater
coastal state prescriptive jurisdiction over vessel-source pollution in the EEZ is
beyond the scope of this Note. n123 Nonetheless, it is helpful to trace the outlines of how
States might be seeking to increase their jurisdiction, and how these efforts might
reflect the first seeds of changing customary international law. Moreover, briefly
discussing these efforts lays the foundation for discussing how UNCLOS might be
changed to reflect these coastal States' concerns.

One reason that state practice with respect to the exercise of jurisdiction in the EEZ
has been difficult to identify is because not all of the States that have claimed an EEZ
have taken the further step of claiming jurisdiction to protect and preserve the marine
environment. n124 Of the 102 States that had established an EEZ by 1998, sixty-four
had made jurisdictional claims regarding the protection and preservation of the marine
environment consistent with the UNCLOS framework, twenty-five had claimed
""exclusive jurisdiction' to preserve and protect the marine environment or to prevent
and control marine pollution," and twelve had not yet made a claim of jurisdiction with
respect to protection and preservation of the marine environment. n125 It is worth
noting, however, that among those States whose jurisdictional claims are generally
consistent with UNCLOS's provisions, some have made specific claims of prescriptive
jurisdiction in apparent, if not actual, conflict with the convention's provisions. n126
Although most coastal state action conforms to the UNCLOS provisions, reflecting the
continuing "predominance of internationalism above unilateralism," n127 there are
several important instances of States' action that the convention seemingly does not
authorize. Not only can those States' actions be explained by reference to the
jurisdictional bases for increased coastal jurisdiction identified in Part II above, such
actions demonstrate the continuing possibility that States will take action beyond that
authorized by UNCLOS to fill perceived or actual gaps in the international  [*798] 
framework. These examples provide the nucleus around which future assertions of
coastal state jurisdiction in the EEZ might be made, leading to the formation of a
new customary international law rule, as other States respond either by accepting
these assertions or by asserting their own similar jurisdictional claims. Because these
examples could lead to the formation of a new customary international law rule, it is
appropriate to discuss some of the more prevalent examples.

States have asserted increased jurisdiction over vessel-source pollution in the EEZ that
is not authorized by UNCLOS in two general ways. The first is through direct specific
claims of prescriptive jurisdiction that are not authorized by UNCLOS. n128 The second is
by claiming special pollution prevention areas that, although theoretically permissible
under UNCLOS, n129 are nonetheless not authorized by the convention's specific
provisions or are not enacted through the regulatory procedures that the convention
provides.

13
 A. Assertions of State Prescriptive Jurisdiction in the EEZ Not Authorized Under
UNCLOS
 
Some States do not distinguish between the prescriptive jurisdiction regimes for their
territorial sea and their EEZs. n130 Although a State's failure to make such distinctions
may not be incompatible with UNCLOS, what matters is the application of the
particular legislation through which the coastal State asserts its jurisdiction. For
example, India's claim of jurisdiction allowing it to "extend, with such restrictions and
modifications as it thinks fit, any enactment for the time being in force in India or any
part thereof to the exclusive economic zone or any part thereof" n131 may be
unauthorized by UNCLOS, depending on the referenced legislation that is extended to
have affect in the EEZ. n132 For example, if India were to extend domestic criminal
statutes to the EEZ, it would likely be inconsistent with UNCLOS. Other States have
made jurisdictional claims similar to India's. n133 Several States, Cape Verde for
[*799]  example, have specific legislation that appears to prescribe rules concerning
discharges that are beyond that authorized under the UNCLOS framework, in that they
do not appear to give effect to GAIRAS. n134 The particular wording of Cape Verde's
legislation, n135 whether intentional or not, appears to extend its jurisdiction to the EEZ
based on the protective or the effects principles of jurisdiction, especially given the
reference to prejudice to the country's "economic interests." n136 Similarly, Spanish
regulations requiring that any tankers that intend to anchor temporarily in the Spanish
EEZ must apply for authorization to do so, must be subject to Spanish inspection, and
must refrain from cleaning tanks, may also be an extension of prescriptive rules in the
EEZ beyond that which is contemplated by UNCLOS, as such rules are not GAIRAS. n137

Both Canada and the United States have legislation asserting claims of prescriptive
jurisdiction that may not be authorized by UNCLOS. n138 The relevant legislation is
particularly noteworthy because the United States and Canada are large States that
retain characteristics of both coastal - including port - and maritime States. Canada
was one of the first countries to take early and substantial steps in regulating vessel-
source pollution in the area that is now part of its EEZ, resulting in the enactment of
the 1970 Arctic Waters  [*800]  Pollution Prevention Act ("AWPPA"). n139 This act
extended Canadian prescriptive jurisdiction much further than allowed under then-
existing international law. n140 Although the adoption of UNCLOS legitimized AWPPA
from an international law standpoint, n141 this legislation indicates Canada's willingness
to assert extraterritorial jurisdiction based on either the effects or protective principles.
Also, Canada has long exercised jurisdiction over the portion of the ocean now part of
the EEZ through the Canadian Shipping Act, n142 which further blurs Canada's
jurisdictional competences in the territorial sea and the EEZ. n143 Canada's assertion of
prescriptive jurisdiction over vessel-source discharges in the EEZ may or may not be
beyond the limits established by UNCLOS, depending on the specific regulations
Canada adopts and whether those regulations are GAIRAS. The Canadian legislation
does have the potential, however, to go beyond existing international law. n144
Irrespective of whether Canada's legislation is consistent with UNCLOS, the  [*801] 
legislation appears to be based on the effects or protective principles of extraterritorial
jurisdiction and clearly indicates Canada's willingness to assert greater jurisdiction to
protect the environment in its EEZ where it determines that existing international law
inadequately protects Canadian interests.

Although generally the United States exercises its prescriptive jurisdiction in the EEZ in
accordance with UNCLOS provisions, certain parts of the Oil Pollution Act of 1990
("OPA") n145 are a clear example of a State exercising extraterritorial jurisdiction based

14
 on either the effects principle or the protective principle. n146 Of particular importance is
OPA's requirement that foreign vessels lightering in the United States' EEZ - even
those not intending to enter United States waters - maintain certificates of financial
responsibility if some of the oil is destined for the United States, n147 which is not
GAIRAS. Moreover, OPA imposes a series of additional requirements for vessels
transferring oil or hazardous materials in the marine environment. n148 Although vessels
transiting through the EEZ are not required to meet these requirements, the
requirements nonetheless constitute a "far-reaching impact on the freedom of
navigation," n149 which may go beyond the limitations on coastal state jurisdiction
under UNCLOS, Article 211(5). n150

 [*802]  Although inconsistency between OPA and UNCLOS is neither immediately

apparent nor absolutely certain, n151 the United States' asserted prescriptive jurisdiction
over vessel-source pollution in this context goes beyond merely giving effect to
GAIRAS. Further, the actions of Canada and the United States are evidence that
States, even traditional maritime States, will assert greater jurisdiction over the EEZ
when they find that the international regulatory regime's provisions provide
inadequate protection to their marine environment. n152 As coastal States increasingly
turn to the ocean and their respective EEZs as a source of economic wealth, it is clear
that States will increasingly take action to protect those economic interests.
Notwithstanding the existence of UNCLOS framework, protecting those interests may
lead States to assert even greater jurisdiction over vessel-source pollution in the EEZ.

B. Assertions of State Prescriptive Jurisdiction: Claims of Special Areas in the EEZ

 
The second way that States have asserted prescriptive jurisdiction over vessel-source
pollution is through unilateral claims of "special pollution prevention areas" ("SPPAs")
that either substantively go beyond claims contemplated by UNCLOS or are not
enacted through the regulatory provisions provided by the convention. UNCLOS
provides that where pollution control rules and standards established under UNCLOS
are inadequate to meet "special circumstances," coastal States having "reasonable
grounds for believing that a particular, clearly defined area of their respective
exclusive economic zones is an area where the adoption of special mandatory
measures for the prevention of pollution from vessels is required" may adopt such
measures upon approval of the IMO. n153 Special areas are generally intended to cover
only part of the EEZ, though nothing in the convention's language precludes adoption
of a special area covering the entire EEZ. n154

 [*803]  Although by 1998 no State had requested that the IMO designate SPPAs,
several States unilaterally had adopted legislation designating SPPAs in their EEZ,
which may not be authorized by UNCLOS. n155 For example, Bangladesh, Canada,
Estonia, the Russian Federation, and Sri Lanka all have legislation permitting the
establishment of special marine areas that partly extend beyond the territorial sea. n156
Although the legislative acts in question vary in degree of purported prescriptive
jurisdiction over areas outside their territorial waters, these laws do not indicate an
obligation to follow the designation procedure in UNCLOS, Article 211(6). n157 Because
there is no reference to the UNCLOS designation procedures, such acts may or may
not be consistent with UNCLOS, depending on the manner in which these areas are
eventually established. n158 Absent state action on this legislation, the question remains
whether such legislation is beyond that authorized under UNCLOS.

The United States is the only State thus far to both enact legislation and unilaterally
designate SPPAs, thus exercising prescriptive jurisdiction in a manner beyond that

15
 contemplated by UNCLOS. n159 Considering the United States' traditional role as a
maritime State and an ardent proponent of the freedom of navigation, this sole
unilateral act in this context is particularly relevant. Under the Marine Protection,
Research, and Sanctuaries Act of 1972 n160 the United States may designate marine
sanctuaries that extend into the EEZ. n161 The Act indicates that it is to be applied "in
accordance with generally recognized principles of international law, and in accordance
with treaties, conventions, and other agreements to which the United States is a
party." n162 The Act further states that "no regulation shall apply to or be enforced
against a person who is not a citizen, national, or resident alien of the United  [*804] 
States, unless in accordance with ... generally recognized principles of international
law," or relevant agreements between the United States and the citizen's country or
the vessel's flag State. n163 While this statutory language accords with international law,
some of the regulatory provisions implementing the specific marine sanctuaries may
be beyond that which is authorized by UNCLOS. Regulations governing the Gray's
Reef, n164 Cordell Bank, n165 Flower Garden Banks, n166 Monterey Bay, n167 and Olympic
Coast n168 marine sanctuaries all prescribe vessel discharge standards that are more
extensive than the prescriptive jurisdiction provided for under the UNCLOS framework.
n169
The Flower Garden Banks sanctuary raises specific concerns, as its anchoring
regulations also appear to be inconsistent with UNCLOS. n170 Although the United States
has argued that anchoring restrictions are resource protection, n171 which would be
evaluated under UNCLOS Articles 59 n172 and 78, n173 such a position raises concerns
about whether justifications under these Articles would nonetheless exceed the
prescriptive jurisdiction authorized by Article 211. n174 There is, however, one
interesting aspect of the United States'  [*805]  position. Irrespective of whether the
anchorage regulations are correctly categorized as pollution control measures or
resource protection measures, the United States' view may be indicative of a larger
truth, namely that coastal state jurisdiction to protect and conserve its EEZ
resources cannot logically be severed from that State's jurisdiction to control or
prevent vessel-source pollution in the same maritime zone. If the two concepts are not
in fact mutually exclusive, then it is more apparent that UNCLOS has inadequately
addressed coastal state interests in protecting the marine environment. This would
lend further support to the idea that there is a need to increase coastal state
prescriptive jurisdiction with respect to the EEZ.

From the coastal state perspective, UNCLOS significantly advanced international law
by increasing coastal state prescriptive jurisdiction over vessel-source pollution in that
part of the ocean space now consisting of the EEZ. At the same time, however,
UNCLOS restricted coastal state prescriptive jurisdiction by requiring coastal States
to implement or give effect to GAIRAS adopted at the international level. n175 Maritime
States - which dominate the IMO, the principal international law-making body in this
area - may have seen that restriction on coastal state jurisdiction as necessary to
ensure a proper balance between maritime and coastal States' authority, which was a
precondition for maritime States' accession to the treaty. n176 State practice with
respect to prescriptive jurisdiction in the EEZ has thus far been limited, and assertions
of jurisdiction generally have been consistent with the general provisions of UNCLOS.
n177
Despite general adherence to UNCLOS, however, there are several notable
instances where States' assertions of prescriptive jurisdiction make no distinction
between the territorial sea and the EEZ. This raises the possibility that such States
intend to exercise jurisdiction in the EEZ in a manner beyond that contemplated by
UNLOS Part XII - or at least want to leave open the option of doing so in the future. n178
Thus far, however, there are very few instances of assertions of prescriptive
jurisdiction  [*806]  over vessel-source discharge in the EEZ beyond UNCLOS as it is

16
 generally interpreted. n179

Given the extent of, and lack of consistency in, State practice, one cannot conclude
that there has been a change in customary international law such that there is a norm
under which States may assert greater prescriptive jurisdiction over vessel-source
discharge in the EEZ. n180 Nonetheless, State assertions of prescriptive jurisdiction not
authorized by UNCLOS are relevant in that they lead to a few important conclusions.
First, where coastal States have increased prescriptive jurisdiction over vessel-source
discharge in a manner not authorized by UNCLOS, those claims of jurisdiction appear
to be based on - or at least can be explained by reference to - the principles of
extraterritorial jurisdiction identified in Part II above, namely the effects and protective
principles of jurisdiction. Second, those States that have exercised prescriptive
jurisdiction in such a manner have often done so because they have found that the
existing framework, based on either flag or port state enforcement, inadequately
protects their interests. As coastal States increasingly look to the ocean as a source of
economic wealth, they also likely will increase their interest in redefining and
expanding the definition of coastal state prescriptive jurisdiction with respect to
"sovereign rights" in the EEZ. n181 Supporting this conclusion is the 1992 United Nations
Conference on Environment and Development ("UNCED"), n182 which sanctioned the
new principles of the precautionary approach and sustainable development. n183 As
coastal States seek to integrate UNCED's principles into EEZ management, and as
these principles become new rules of international law, coastal States might find it
desirable to assert more prescriptive jurisdiction over vessel-source pollution. Finally,
coastal State assertions of jurisdiction increase the likelihood of conflict between
coastal and maritime States, as these jurisdictional claims have a greater perceived -
and sometimes actual - effect on freedom of  [*807]  navigation. Given the historical
trend of ever increasing coastal state assertions of jurisdiction over the ocean space,
n184
the question may not be whether greater jurisdictional claims will be made, but
when will they be made. n185 Coastal state assertions of expanded prescriptive
jurisdiction, in the end, not only have the effect of altering the existing balance found
in the existing law of the sea framework, but they may be the first barometers
indicating that a change in the framework is necessary.

IV. Reasserting UNCLOS Leadership: Lessons from the Mandatory Ship Reporting
Systems
 
UNCLOS is at its core a constitutional framework n186 that establishes States' general
jurisdictional competences, while providing the necessary flexibility to develop new
rules for exercising that jurisdiction - for example, by reference to GAIRAS - in
reaction to changing circumstances. n187 As such, in order to address new concerns such
as vessel-source pollution in EEZs, the UNCLOS framework should be subject to
modifications that reflect changing conditions in the marine environment and the
international community's understanding of, and concerns for, marine environmental
issues. n188 The convention itself  [*808]  contemplates that it and the associated
regulatory framework it established may have to be modified in response to changing
circumstances. n189 These changes may be made through either general diplomatic
conference or the competent international organization, n190 in this case the IMO. Given
the past assertions of increased jurisdiction over vessel-source pollution and the
likelihood that pressures for change will continue to build, the international community
should accommodate coastal States' environmental protection concerns either by
changing the existing jurisdictional balance through a change to UNCLOS itself, n191 or
by modifying the existing jurisdictional framework by adopting new and more flexible

17
 GAIRAS. n192 With regard to this latter alternative, recent trends concerning ship
reporting systems offer some useful insights.

A. Mandatory Ship Reporting Systems

 
One way in which coastal States have recently sought to increase preventative
measures to prevent vessel-source pollution is through the adoption of mandatory
"ship reporting systems" ("SRSs") regulations promulgated by the IMO. n193 Such
systems are designed to increase safety,  [*809]  promote efficient navigation, and
protect the marine environment. n194 Since 1996, several IMO-approved SRSs have
been created. The first two approved systems were the "In the Torres Straight Region
and Great Barrier Reef (Australia and Papua New Guinea)" system and the "Off
Ushant" (France) system. n195 Three other systems were approved at the following
meeting of the IMO Marine Safety Committee. n196 More recently, in December 1998,
the IMO approved, at the United States' request, two mandatory SRSs specifically
designed to increase protection of the endangered northern right whale against ship
strikes. n197 In addition to these ship reporting systems, the IMO has adopted one ship
routing system, the system "Off the Frisian Islands in the North Sea," at the request of
Germany and the Netherlands. n198

The northern right whale SRSs are particularly interesting for three reasons. First, they
were proposed by the United States, a traditional maritime power that often opposes
efforts by coastal States to increase prescriptive jurisdiction that might lead to
decreased freedom of navigation. Second, the United States' submission caused
significant controversy within the IMO about to the proper use of existing regulatory
mechanisms. n199 Third, the right whale mandatory SRSs are the first such systems that
were designed exclusively to protect a single species, with negligible, if any,
contribution to increased vessel safety, since most large vessel whale strikes have little
impact on the vessel itself. n200

Although these mandatory reporting and routing systems are significant advances in
improving vessel safety and enhancing environmental protection  [*810]  by
preventing accidental discharges, they do nothing to reduce or prevent operational
discharges. n201 Nonetheless, they do provide valuable lessons to the international
community by presenting a model for expanding, albeit in a controlled fashion,
coastal state prescriptive jurisdiction over vessel discharge.

In the first place, the adoption of these systems shows that the international
community - including maritime States - is willing to adopt increased measures to
enhance environmental protection, even where those measures impinge on traditional
notions of freedom of navigation. n202 What is more, any theoretical coastal state
prescriptive rules over vessel pollution discharge in the EEZ - e.g., rules identifying
where in the EEZ such discharges can be made or prohibiting such discharges in the
EEZ altogether, which is not GAIRAS - would restrict navigational freedom less than
would a routing system. Routing systems clearly restrict the freedom of navigation
that vessels currently enjoy in the EEZ, which is currently no less than the navigational
freedoms enjoyed on the high seas. n203 Mandatory routing systems might even be
more restrictive than the general innocent passage regime that exists in the territorial
sea, n204 where the transiting vessel at least presumably has the choice of what route to
use as long as the passage meets the definitional requirements of "innocent." n205 In
contrast, rules prohibiting oil discharges in the EEZ do not inhibit a vessel's freedom to
navigate - that is, the freedom of movement - which is the central concept of freedom
of seas.

18
 Some might argue that allowing States to prohibit discharges would lead  [*811] 
inevitably to coastal State at-sea enforcement in the EEZ. This, however, is not
necessarily so. Giving states jurisdiction to prescribe does not necessarily need to
automatically trigger jurisdiction to enforce. Enforcement jurisdiction could be framed
so that it is conducted by port States, by agreement with the prescribing coastal
State. n206 A related concern might be that giving coastal States greater jurisdiction to
prescribe regulations - including prohibiting - over discharges in the EEZ would give
coastal States the opportunity to interfere with military vessels, under the guise of
enforcing prescriptive rules, thus threatening other States' national security interests.
There are, however, two principal reasons to suggest that such concerns are
unfounded. First, the type of discharges that are the object of most coastal States'
concerns and regulations are intentional discharges of oil by oil tankers, conducted as
part of cleaning cargo tanks or flushing cargo tanks that were used for ballast. n207 It is
unlikely that military vessels would be engaged in such activity. Second, the rules
giving coastal States greater jurisdiction to prescribe could be drafted in such a way
to specifically exempt military or national vessels. n208

The willingness of States to accept greater coastal state jurisdiction over more of
the ocean space to prevent further degradation of the marine environment is reflected
not only in the historical trends in international law, n209 but in UNCLOS itself. n210 Just as
freedom of the seas can no longer be seen to allow a State to exploit the natural
resources of the high seas irrespective of other States' interests, freedom of navigation
- even on the high seas - can no longer be seen as giving States the unfettered right
to operate vessels irrespective of possible damage to the environment. n211

The adoption of SRSs also highlights the IMO's ability to act as an international
"legislative body," capable not only of developing specific substantive rules, standards,
and procedures, but also of adopting broader,  [*812]  more flexible GAIRAS rules that
allow coastal States to exercise greater prescriptive jurisdiction in response to
changing environmental circumstances. n212 In this sense then, UNCLOS provides a yet
to be defined limit to the prescriptive jurisdiction of the coastal State. n213 The IMO,
acting within its regulatory - or legislative - capacity, then adopts rules that give some
shape to this undefined limit. n214 Although the IMO usually adopts specific substantive
rules or standards, for example, the amount of oil allowed to be discharged in specific
geographical areas, n215 nothing appears to prevent the IMO from adopting more
flexible rules. For example, the IMO could adopt rules that would establish specific
conditions that when met would trigger a coastal State's authority to prescribe more
stringent standards. n216 If adopted by the IMO, such rules would become GAIRAS.
Thus, these new rules would have the effect of expanding coastal prescriptive
jurisdiction within the existing UNCLOS framework without readjusting the
jurisdictional competence. The existence of broader, more jurisdictional-like GAIRAS
would allow coastal States to adopt more stringent and specific substantive rules
when the triggering criteria were met, thus obviating the need for the coastal State to
expand its jurisdiction beyond that which UNCLOS authorizes.  [*813]  This flexibility
not only appears to be contemplated by UNCLOS, n217 but it also provides the UNCLOS
framework the malleability necessary to prevent it from breaking down in the face of
changing circumstances and new state interests. n218

Finally, the language the IMO used in describing the need for establishing SRSs
appears to be an attempt to readjust the balance between coastal States' interests in
environmental protection and maritime States' interests in navigational freedoms. n219
For example, the Australo-Papua New Guinean mandatory SRS was adopted "in view
of the unique environment and navigational hazards in the area." n220 Similarly, the IMO

19
 adopted France's mandatory SRS Off Ushant "because of the density of maritime
traffic and the potential environmental consequences of any accident in the area." n221
The IMO, moreover, adopted the "In the Finisterre Traffic Separation Scheme" and the
"In the Strait of Gibraltar Traffic Separation Scheme" to increase marine traffic safety
and efficiency and to "improve environmental protection in ... particularly sensitive
areas of high traffic density." n222 The IMO's approval of the northern right whale
mandatory SRS was similarly given "in light of the exceptional circumstances"
supporting the United States' position that a mandatory SRS, subject to three specific
limitations and based on peer-reviewed scientific research, was justifiable under
existing SOLAS Convention regulations. n223

IMO approval of the traffic reporting and routing systems indicates a shift in  [*814] 
the balance between coastal and maritime States' relative interests. n224 As the
coastal States' interests in environmental protection increase relative to the maritime
States' navigational interests, the IMO appears willing to allow broader exercises of
coastal state prescriptive jurisdiction. This, of course, presumes that the IMO
maintains some influence over the shape and character of the prescriptive rules, since
the coastal States must seek IMO approval for these systems. n225 When viewed in the
larger context of international law's changing concerns regarding environmental
protection, these examples provide important lessons for changing the jurisdictional
balance between coastal States and maritime States with respect to vessel-source
discharge in the EEZ.

B. Mandatory Ship Reporting Systems, Special Protection Areas, and a Prescription for
Change
 
In anticipation of increased coastal state demands for enhanced environmental
protection, the IMO should seek to establish a set of objective criteria under which it
would be permissible for coastal States to implement more restrictive prescriptive
rules regulating, and even prohibiting, vessel discharges in their EEZs. These criteria
would in effect become new GAIRAS, and UNCLOS Article 211(5) would then authorize
States to prescribe the new oil discharges rules. n226 These criteria could, for example,
require coastal States to provide evidence, subject to peer review, identifying the
impact of existing discharge standards upon their EEZ resources, including certain
marine species.

Alternatively, the IMO could establish a specific threshold level of allowable marine
pollution. Under such rules, if a portion of a coastal State's EEZ exceeded this
predetermined level then provisions would be triggered that allow the affected coastal
State to prescribe more stringent discharge standards. n227 Under such a jurisdictional
framework, States would know in advance what criteria would have to exist before
they could implement additional standards. In one sense, then, the IMO would be
creating new GAIRAS that are not specific, technical rules - such as the parts per
million allowable oil discharge or specific design standards - but rather that are new,
broader rules that establish conditions under which coastal States may exercise
expanded jurisdiction over activity in the EEZ. Identifying the criteria under  [*815] 
which a coastal State could implement more stringent regulations would provide both
coastal and maritime States advance notice of the criteria, thus providing an
opportunity to debate the necessity - and the threshold - of the triggering criteria.
Moreover, since peer review would presumably be conducted through the IMO, that
body would maintain the clearinghouse role that it currently has with respect to the
adoption of routing and reporting systems. Establishing such threshold standards
would be particularly important for those coastal States whose EEZs are in

20
 geographically sensitive areas, which, due to the geographical nature of the marine
areas - for example, the existence of fragile reef systems - are particularly vulnerable
to oil pollution. n228 Establishing threshold standards would also be particularly
important for EEZs that are particularly susceptible to accumulated oil pollution
because the geographic or oceanographic factors result in less effective natural
cleansing of the waters.

Other criteria might include economic considerations. Coastal States that conduct
significant activities affected by pollution discharge might be allowed to prescribe more
stringent regulations for their EEZs than States that do not have similar activity. For
example, a coastal State that has a significant aquaculture industry might be
permitted to establish more stringent standards than a coastal State that does not.
The economic value of the coastal State's EEZ resources and activities might be
balanced against the economic value that the shipping interests gain from being able
to discharge oil into the EEZ. Where the economic value the coastal State derives
from a cleaner EEZ is greater than the maritime States' interest in operational oil
discharges, the coastal State would have the option of regulating or prohibiting such
discharges. Alternatively, rather than evaluating coastal States' requests on an ad hoc
basis, the IMO could establish a set of criteria that would automatically trigger
permission for the coastal State to designate portions of its EEZ as a Particularly
Sensitive Sea Area ("PSSA") under UNCLOS, Article 211. n229 Coastal States may view
an established set of criteria that triggers designation of a PSSA, in contrast to a case-
by-case evaluation of each State's request, as a more objective way to establish such
areas, free from the influence of larger maritime States.

Irrespective of the manner in which coastal state jurisdiction is expanded, doing so

could be expected to have at least one significant collateral benefit. One would expect
that expanded coastal state prescriptive jurisdiction would have an action-forcing, and
perhaps technology-advancing, affect on the shipping industry itself. When faced with
more stringent vessel-discharge standards, the shipping industry would have the
necessary economic incentives  [*816]  to take more proactive measures in developing
technology or operational procedures that obviate the need for operational discharges
that exist today.

The specific measures the IMO might adopt are, in the end, less important than the
application of an overall criterion of reasonableness, a principle interwoven through all
previous modifications to the law of the sea regime. What constitutes a reasonable
jurisdictional balance, however, must be defined by the context and circumstances of
the times in which that balance exists. The framework that constituted a reasonable
balance prior to UNCLOS was significantly different from what is currently viewed as
reasonable under UNCLOS today. Similarly, what constitutes a reasonable balance in
the future will likely be different from the present balance.

Conclusion
 
As is the case in most international environmental law issues, identifying the problem
is easier than crafting a solution. With respect to coastal state jurisdiction over
vessel-source pollution in the EEZ, there are no easy answers. What appears clear,
however, is that coastal States will increasingly seek to increase their prescriptive,
and perhaps enforcement, jurisdiction over vessel-source pollution in the EEZ. This is
already evident in actions taken by some of the countries with strong environmental
movements, such as Canada and the United States. Moreover, the assertions of
increased jurisdiction reflect - or at least can be explained by reference to - customary

21
 international law principles of jurisdiction, such as the effects, objective territorial, and
protective principles of jurisdiction. It is also equally clear that such unilateral
assertions of expanded jurisdiction jeopardize the already delicate balance established
by the existing law of the sea regime. If, as has been argued above, increased coastal
state jurisdiction is in a sense inevitable - reflecting the long-term trend in
international law of the sea - then adjusting the jurisdictional balance to address
coastal States' concerns may be the most important step toward preserving the more
fundamental elements of the existing framework. Such a shift in the jurisdictional
balance between coastal and maritime States is not only consistent with the long-
term historical trend in the law of the sea, but is furthered by UNCLOS itself. UNCLOS,
however, cannot be seen as the final destination; rather, it is the vessel upon which
future change should be made.

Legal Topics:

For related research and practice materials, see the following legal topics:
Admiralty LawPractice & ProcedureJurisdictionAdmiralty LawShippingRegulations &
StatutesPollution From ShipsInternational Trade LawTrade AgreementsEnvironmental
ProvisionsGeneral Overview

FOOTNOTES:

n1. See generally Michelle Baldwin et al., Recent Developments, A Review of

Developments in Ocean and Coastal Law 1999-2000, 5 Ocean & Coastal L.J. 367,
367-69 (2000) (reporting on the Erika oil tanker spill).

n2. See Ian Brownlie, Principles of Public International Law 247-48 (5th ed. 1998)
(noting that the Torrey Canyon, a Liberian-registered tanker, ran aground off the
British coast in 1967, spilling 60,000 tons of oil).

n3. See Douglas Brubaker, Marine Pollution and International Law 10 (1993)
(reporting that the Amoco Cadiz accident off the French coast in 1977 spilled 230,000
tons of oil).

n4. See id. (estimating that the Exxon Valdez accident in Alaska in 1989 spilled 30,000
to 40,000 tons of oil).

n5. See Baldwin et al., supra note 1, at 367-68 (outlining the proposed changes). With
respect to the double-hulled tanker requirement, France proposed accelerating the
timetable for requiring double-hulled tankers from 2019 to 2008. Id. at 367.

n6. See EU Deputies Accept Compromise Version of Legislation on Pollution from

Ships, 23 Int'l Env't Rep. (BNA) 707 (Sept. 13, 2000) [hereinafter EU Deputies].

n7. See id.

n8. See Ronald B. Mitchell, Intentional Oil Pollution at Sea: Environmental Policy and
Treaty Compliance 108 (1994) (identifying oil tanker accidents as playing a major role
in mobilizing public opinion in favor of action, which subsequently results in public
action); Paul Stephen Dempsey & Lisa L. Helling, Oil Pollution by Ocean Vessels - An
Environmental Tragedy: The Legal Regime of Flags of Convenience, Multilateral
Conventions, and Coastal States, 10 Denv. J. Int'l L. & Pol'y 37, 42 (1980) ("While

22
 routine deballasting and cleaning operations are responsible for the bulk of the oil
which has been lost or dumped at sea, it is the major spills which have become the
focus of world press and public attention.").

n9. See EU Deputies, supra note 6, at 707 (noting that the executive European
Commission framed draft legislation that targets the purposeful flushing of oil tankers,
which causes "far more marine oil pollution than spillages from occasional, spectacular
tanker accidents"). Operational, or intentional, discharges are purposeful discharges by
vessels during routine operations. Such discharges may occur as a result of cleaning
the cargo tanks in preparation for carrying a new or different load of cargo or carrying
water in the cargo tanks as ballast. See Mitchell, supra note 8, at 72-73. The terms
"operational" and "intentional" with respect to oil discharges are often used
interchangeably and are distinguished from accidental spills. See, e.g., id. at 71 n.6.

n10. See generally Mitchell, supra note 8, at 147-88 (examining advantages and
disadvantages of various methods for inducing governments to enforce environmental
rules that effectuate compliance by private actors).

n11. See United Nations Convention on the Law of the Sea, opened for signature Dec.
10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS] (entered into force Nov. 16,
1994). UNCLOS establishes a legal framework that divides the oceans into various
zones corresponding to levels of state jurisdictional competences. See generally 1 E.D.
Brown, The International Law of the Sea 18 (1994) (identifying nine jurisdictional
zones, the first four of which existed prior to UNCLOS: internal waters, the territorial
sea, the contiguous zone, the high seas, the continental shelf, the exclusive fishing
zone, the exclusive economic zone, archipelagic waters and the "Area"). An individual
State's jurisdiction over the ocean is generally inverse to the proximity of that
portion of the ocean space to the State's territory; that is, the further one moves from
the State's territory, the jurisdiction of the State in question decreases, while the
corresponding rights of other States increase. The waters immediately adjacent to a
State constitute the State's territorial sea, within which the coastal State exercises
sovereignty over the water, airspace, seabed, and seabed subsoil. UNCLOS, supra, art.
2(1), (2), at 400. The territorial sea may not extend beyond twelve nautical miles, as
measured by the State's baseline - marked as the low-water line along the coast. Id.
art. 3, at 400. The State's sovereignty over its territorial sea is limited by different
legal regimes including the right of innocent passage, laws governing international
navigation straights, and the regime governing archipelagic States. See generally id.
pts. II, III, IV, at 400-18. Proceeding seaward, the next principal zone is the
contiguous zone, not to extend beyond twenty-four nautical miles from the baseline, in
which the coastal State may "exercise the control necessary to ... prevent
infringement of its customs, fiscal, immigration or sanitary laws and regulations within
its territory or territorial sea." Id. art. 33(1)(a), at 409. The next zone, the exclusive
economic zone, "shall not extend beyond 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured." Id. art. 57, at 419. In the EEZ,
the coastal State exercises

 
sovereign rights for the purpose of exploring and exploiting, conserving and managing
the natural resources, whether living or non-living, of the waters superjacent to the
sea-bed and of the sea-bed and its subsoil, and with regard to other activities for the
economic exploitation and exploration of the zone, such as the production of energy
from the water, currents and winds.

23
  
Id. art. 56(1)(a), at 418. This geographical distribution of jurisdiction is distinct from
activity-based jurisdiction, under which States may exercise jurisdiction over the
activities over certain activities of its citizens on parts of the ocean where the State
normally would otherwise not have jurisdiction. For example, a flag State would have
primary jurisdiction for activity conducted by one of its vessels on the high seas or
over activity occurring on the ship on the high seas. See, e.g., id. art. 92, at 433
("Ships shall sail under the flag of one State only and, save in exceptional cases
expressly provided for in international treaties or in this Convention, shall be subject to
its exclusive jurisdiction on the high seas."); id. art. 94, at 434 ("Duties of the flag
state."); id. art. 97, at 435 ("Penal jurisdiction in matters of collision or any other
incident of navigation.").

n12. As used in this Note, prescriptive jurisdiction is the power to prescribe, or

legislate, rules of behavior. This is in contrast to enforcement jurisdiction, which is the
power to enforce those rules. Brownlie, supra note 2, at 301; Malcolm N. Shaw,
International Law 452 (4th ed. 1997). This Note also treats the jurisdiction to
adjudicate as enforcement jurisdiction, since it is the "capacity to ensure compliance"
with the prescribed law. Id.; see also Erik Jaap Molenaar, Coastal State Jurisdiction
over Vessel-Source Pollution 75-76 (1998) (treating adjudication similarly). Contra
Restatement (Third) of the Foreign Relations Law of the United States 401 (1987)
(identifying three separate categories of jurisdiction: prescription, adjudication, and
enforcement). The Restatement, however, recognizes that jurisdiction to enforce
includes the ability to compel compliance through "the courts or by use of executive,
administrative, police, or other nonjudicial action." Id. 401(c); see also id. pt. IV, at
231 ("These categories of jurisdiction are often interdependent, and their scope and
limitations are shaped by similar considerations."). Within the specific context of
pollution standards, some authors "sub-divide enforcement jurisdiction into the
competence to arrest (arrest jurisdiction) and the competence of courts to deal with
alleged breaches of the law (judicial jurisdiction)." R. R. Churchill & A. V. Lowe, The
Law of the Sea 344 (3d ed. 1999).

n13. Daniel Bodansky, Protecting the Marine Environment from Vessel-Source

Pollution: UNCLOS III and Beyond, 18 Ecology L.Q. 719 (1991).

n14. See id. at 775 (discussing the development of new jurisdictional rules as one way
the international community could address coastal States' concerns over vessel-
source pollution).

n15. The IMO, which until 1982 was known as the International Maritime Consultative
Organization ("IMCO"), was established in 1958. See Convention on the
Intergovernmental Maritime Consultative Organization, opened for signature Mar. 6,
1948, 9 U.S.T. 621, 289 U.N.T.S. 3 (entered into force Mar. 17, 1958) (establishing
the IMCO).

n16. Molenaar, supra note 12, at 19.

n17. See Mitchell, supra note 8, at 69 ("Intentional oil discharges from tanker
operations have consistently overshadowed accidents as the major source of ship-
related oil pollution."); see also id. at 70 tbl.3.1 (identifying sources of oil discharge
into the sea); James B. Morell, The Law of the Sea: An Historical Analysis of the 1982
Treaty and Its Rejection by the United States 199-200 (1992) ("A series of accidental
oil spills and tanker wrecks brought the problem of vessel-source pollution inescapably

24
 to the attention of national delegations [to UNCLOS], yet four times as much oil was
being intentionally discharged into the sea from ships in the absence of an effective
prohibitory rule of international law." (footnote omitted)); The Oceans Inst. of Can.,
Maritime Affairs: A World Handbook 241 (Edgar Gold ed., 2d ed. 1991) [hereinafter
Maritime Affairs] (noting that maritime transportation, although contributing only 12%
of all potential ocean pollution, accounts for "46 per cent of the total input of oil into
the sea").

n18. See, Molenaar, supra note 12, at 19 n.14 (noting that despite the public attention
given to accidental discharges, such discharges only account for approximately 21% of
the vessel-source discharges - about 121,000 of 570,000 tons); cf. Mitchell, supra
note 8, at 72 (noting that an upper range estimate of the amount of oil operationally
discharged could be as high as five million metric tons annually).

n19. See Mitchell, supra note 8, at 72 (reporting that two-thirds of the ship-generated
oil pollution is intentional); Dempsey & Helling, supra note 8, at 42 n.15 (identifying
estimates that 80 to 85% of the oil discharged into the ocean is intentional); see also
Maritime Affairs, supra note 17, at 241 (noting that although oil tanker accidents
attract the most public attention, they account only for about 10% of the oil entering
the marine environment); Bodansky, supra note 13, at 724 (noting that "vessel-source
pollution accounts for approximately twelve percent of all marine pollution" and that
the "bulk of vessel-source pollution results from routine operational discharges").

n20. See, e.g., George C. Kasoulides, Port State Control and Jurisdiction: Evolution of
the Port State Regime (1993) (tracing the evolution of the port state regime, with
particular attention paid to the contribution of UNCLOS and the improvements that are
possible within the new regime); Molenaar, supra note 12 (studying coastal state
prescriptive and enforcement jurisdiction over vessel-source in international law);
Bodansky, supra note 13 (discussing the laws surrounding vessel-source pollution,
especially under UNCLOS, and the possibility of additional rules and standards
necessary to protect the maritime environment).

n21. See Molenaar, supra note 12, at 19.

n22. Hugo Grotius, The Freedom of the Seas (Ralph Van Deman Magoffin trans.,
James Brown Scott ed., Oxford University Press 1916) (1608). Grotius' treatise,
published anonymously in November 1608, had originally been Chapter XII of his
anonymously published De Jure Praedae. Id. at v.

n23. See 1 Brown, supra note 11, at 7-8 (tracing the shift in freedom of the seas as
advocated by new maritime powers of England, the United States, and Russia). A flag
State is the country in which a vessel is registered; a vessel is generally subject to the
laws and regulations of its flag State. See Shaw, supra note 12, at 420 ("Each state is
required to elaborate the conditions necessary for the grant of its nationality to ships,
for the registration of ships in its territory and for the right to fly its flag."); see also
UNCLOS, supra note 11, art. 217(1), at 486 ("States shall ensure compliance by
vessels flying their flag or of their registry with applicable international rules and
standards ... ."); Convention on the High Seas, Apr. 29, 1958, art. 5(1), 13 U.S.T.
2312, 2315, 450 U.N.T.S. 82, 84 ("Each State shall fix the conditions for the grant of
its nationality to ships, for the registration of ships in its territory, and for the right to
fly its flag... . [It] must effectively exercise its jurisdiction and control in
administrative, technical and social matters over ships flying its flag."). For example, a
vessel registered in the United States is subject to U.S. laws and regulations.

25
 n24. See 1 Brown, supra note 11, at 19 (citing President Truman's assertion of
jurisdiction and control over the natural resources as the first development in
increasing coastal state jurisdiction over the ocean). The second major
development was the establishment of exclusive fisheries zones, as zones distinct from
the territorial sea. See id.; see also Fisheries Jurisdiction (U.K. v. Ice.) 1974 I.C.J. 3,
23, 29 (July 25) (noting that the concept of exclusive fishery zones, independent of
the territorial sea, had by then crystallized as customary international law, but holding
that Iceland's unilateral extension beyond twelve and out to fifty nautical miles was
not consistent with international law).

n25. This Note divides States into three broad definitional categories: flag States,
coastal States, and port States. A flag State is a country under whose flag a vessel
operates. A United States-flag vessel, for example, flies the United States flag,
operates under United States law, and is generally subject to United States
jurisdiction. See Convention on the High Seas, art. 5(1), supra note 23, 13 U.S.T. at
2315, 450 U.N.T.S. at 84 ("Each State shall fix the conditions for the grant of its
nationality to ships, for the registration of ships in its territory, and for the right to fly
its flag ... . [Each] State must effectively exercise its jurisdiction and control in
administrative, technical and social matters over ships flying its flag."); see also id.
art. 6, 13 U.S.T. at 2315, 450 U.N.T.S. at 86 ("Ships shall sail under the flag of one
State only and, save in exceptional cases expressly provided for in international
treaties or in these articles, shall be subject to its exclusive jurisdiction on the high
seas.").

A Coastal State is a State adjacent to an ocean area. See UNCLOS, supra note 11,
art. 2(1), at 400 ("The sovereignty of a coastal State extends, beyond its land
territory and internal waters and, in the case of an archipelagic State, its archipelagic
waters, to an adjacent belt of sea, described as the territorial sea."). A port State,
simply put, is a State that is visited by ships. Port States are in one sense a special
category of coastal States. Hence, a State could at the same time be a flag State, a
coastal State, and a port State. Port States have significantly more jurisdictional
authority over foreign flagged vessels than do coastal States because visiting vessels
must generally comply with the port State's regulations when in that State's territorial
or internal waters. Further, it is generally accepted that under most circumstances port
States can deny port access to non-compliant vessels. As Professor Molenaar has
noted:

 
Based on the principle of territoriality, this jurisdiction allows a port State not only to
deny in principle access but also to prescribe non-discriminatory laws and regulations
that determine conditions for the entry into its ports. Even though state practice
indicates that ports are commonly open, there is no legal right of access under general
international law.
 
Molenaar, supra note 12, at 101 (footnotes omitted). This Note distinguishes between
port and coastal States, reflecting their different jurisdictional competences; thus a
coastal State is one who is not visited by the vessel in question. See id. at 92 (noting
that "port or coastal State jurisdiction always implies jurisdiction over foreign
vessels").

The term maritime State, as used in this Note, denotes a State that, because either of
its historically significant role as a flag State or of its maintenance of a large naval

26
 force, has a historically strong interest in freedom of the seas. The United States and
the United Kingdom are typically viewed as maritime States. Although the conflict
between maritime States and coastal States may be analogized to users and non-
users - or users and abutters - this analogy is admittedly imperfect because coastal
States may in fact be users and maritime States may in fact also be coastal States.
Nevertheless, the user/non-user analogy is meant to convey the notion that States
have different interests based on the extent and character of their use of the ocean
and their geographical proximity to the ocean. The analogy also conveys the notion
that the costs associated with the maritime States' use of the ocean may be
externalized to the coastal States. These externalities, in turn, are the root source of
conflict between the maritime and coastal States.

n26. See Shaw, supra note 12, at 423-24 (describing the concept of piracy as the
"most formidable of the exceptions to the exclusive jurisdiction of the flag state and to
the principle of the freedom of the high seas"); see also 1 Brown, supra note 11, at
299 ("It has long been recognised in international customary law that all States may
exercise an extraordinary jurisdiction over pirate vessels, irrespective of their flag or
want of it."); cf. id. at 310 (noting that there has historically been less authority for
States to take action against slave trading as opposed to piracy). As Professor Shaw
notes:

 
The original stipulation linked the width of the territorial sea to the ability of the
coastal state to dominate it by military means from the confines of its own shore. But
the present century has witnessed continual pressure by states to enlarge the
maritime belt and thus subject more of the oceans to their exclusive jurisdiction.
 
Shaw, supra note 12, at 391. The coastal State's sovereignty over its territorial sea is
not exclusive, however, being modified by the right of innocent passage, whereby
under customary international law, a foreign merchant vessel may pass through a
territorial sea. Id. at 403 (identifying the right of merchant ships, but not warships, to
pass unhindered through a State's territorial sea as a long-accepted principle in
customary international law). UNCLOS codifies the right of innocent passage. See
UNCLOS, supra note 11, art. 17, at 404 ("Subject to this Convention, ships of all
States, whether coastal or land-locked, enjoy the right of innocent passage through
the territorial sea.").

n27. Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, 15
U.S.T. 1606, 516 U.N.T.S. 205.

n28. Convention on the High Seas, supra note 23, art. 6(1), 13 U.S.T. at 2315, 450
U.N.T.S. at 86 ("Ships shall sail under the flag of one State only and, save in
exceptional cases expressly provided for in international treaties or in these articles,
shall be subject to its exclusive jurisdiction on the high seas.").

n29. See, e.g., Bodansky, supra note 13, at 720. Professor Bodansky notes that:

 
Historically, regulation of vessel-source pollution has engendered conflict between
states seeking to protect their coastal waters by adopting strict environmental
controls (coastal states) and states with significant naval, commercial, or both

27
 maritime interests (maritime states) who view coastal state environmental regulation
as a threat to traditional rights of innocent passage and freedom of navigation.
 
Id. (footnotes omitted); see also Kari Hakap<um a><um a>, Marine Pollution in
International Law: Material Obligations and Jurisdiction 68-71 (1981) (discussing the
confrontation of interests in the maritime pollution field between marine and coastal
States).

n30. See J. Ashley Roach, Salient Issues in the Implementation of Regimes under the
Law of the Sea Convention: An Overview, in Order for the Oceans at the Turn of the
Century 435, 441 (Davor Vidas & Willy <sl O>streng eds., 1999) [hereinafter Order
for the Oceans] (discussing recent developments that tend to tip the balance of
interests of the international community in favor of the coastal States). Port State
control regimes are created by States or groups of States that agree to establish and
enforce specific regulations, including safety and environmental protection standards.
See generally Kasoulides, supra note 20 (tracing the evolution of the port state control
regime and evaluating the extent of port state jurisdiction).

n31. See Kasoulides, supra note 20, at 113 (identifying the 1973 IMO Conference on
Marine Pollution as the place where the concept of port state jurisdiction was first
introduced); cf. Molenaar, supra note 12, at 89 ("In response to [the flag of
convenience problem] coastal States felt increasingly drawn towards extending their
jurisdiction over vessel-source pollution beyond the territorial sea."). See generally
1982 Paris MOU, Memorandum of Understanding on Port State Control in
Implementing Agreements on Maritime Safety and Protection of the Marine
Environment, Jan. 26, 1982, 21 I.L.M. 1 (entered into force July 1, 1982) (calling for,
and agreeing to implement, an improved and harmonized system of port state
control).

n32. See Molenaar, supra note 12, at 50 (noting two reasons for updating the law of
the sea through UNCLOS: (1) a change in the international community due to
decolonization; and (2) coastal state pressure against the primacy of flag state
jurisdiction). See generally Churchill & Lowe, supra note 12, at 13-22. As it exists in
its present form, the United Nations Convention on the Law of the Sea is the
culmination of two earlier attempts at codification at UNCLOS I (1958) and UNCLOS II
(1960). Id. at 15. This Note refers to the Convention using the more general acronym
UNCLOS, rather than UNCLOS III.

n33. See Churchill & Lowe, supra note 12, at 346 (discussing the balanced
compromise that UNCLOS creates between coastal States seeking to expand their
authority and maritime States seeking to limit coastal States' legislative discretion);
Bodansky, supra note 13, at 720 (noting that UNCLOS seeks to resolve the conflict
between coastal and maritime States by delineating jurisdictional rights and
responsibilities).

n34. UNCLOS, supra note 11, pt. XII, arts. 192-237, at 477-94.

n35. Id. art. 211(2), at 483 (indicating that flag States "shall adopt laws and
regulations for the prevention, reduction and control of pollution of the marine
environment from vessel flying their flag or of their registry"); id. art. 211(4), at 484
("Coastal States may, in the exercise of their sovereignty within their territorial sea,
adopt laws and regulations for the prevention, reduction and control of marine
pollution from foreign vessels, including vessels exercising the right of innocent

28
 passage."). With respect to coastal state authority in the EEZ, Article 211(5) states
that:

 
Coastal States, for the purpose of enforcement as provided for in section 6, may in
respect of their exclusive economic zones adopt laws and regulations for the
prevention, reduction and control of pollution from vessels conforming to and giving
effect to generally accepted international rules and standards established through the
competent international organization or general diplomatic conference.
 
Id. art. 211(5), at 484.

n36. See supra note 11.

n37. See generally Molenaar, supra note 12, at 50-54 (outlining the provisions of
UNCLOS).

n38. See UNCLOS, supra note 11, art. 211(5), at 484 (requiring coastal States
adopting laws for the prevention of pollution to conform and give effect to "generally
accepted international rules and standards established through the competent
international organization or general diplomatic conference"); see also Churchill &
Lowe, supra note 12, at 347 ("The legislative competence of coastal States has been
reduced by the Law of the Sea Convention in respect of the kind of pollution
regulations which may be adopted, but increased in respect of the geographical area
to which such regulations may be applied."); Molenaar, supra note 12, at 398
("[UNCLOS] restricts coastal State prescriptive jurisdiction over vessel-source
pollution in the EEZ to implementing GAIRAS adopted at the international level.");
Bodansky, supra note 13, at 756 ("While UNCLOS III's provisions on the EEZ represent
a considerable expansion of coastal state jurisdiction, that jurisdiction remains
highly circumscribed."). It is beyond the scope of this Note to delve more deeply into
the drafting history of UNCLOS's provisions to determine the strength of the
conventional interpretation; this Note therefore adopts this interpretation.

n39. UNCLOS, supra note 11, art. 211(5), at 484.

n40. Id. art. 211(6), at 484.

n41. Bodansky, supra note 13, at 760 (recognizing that "UNCLOS III gives port states,
for the first time, authority over pollution incidents occurring on the high seas or in
another state's coastal waters"); see also Molenaar, supra note 12, at 93 ("Port State
jurisdiction ... is in principle exercised over violations committed beyond the
maritime zones of the coastal State to which it belongs... . The basic idea of port
state jurisdiction is "the exercise of enforcement authority over violations not
physically affecting the port state.'" (quoting Hakap<um a><um a>, supra note 29, at
174).

n42. UNCLOS, supra note 11, art. 218(1), at 487. See generally Churchill & Lowe,
supra note 12, at 350 (discussing port state enforcement of violations of "applicable
international rules and standards established through the competent international
organization or general diplomatic conference" under UNCLOS).

n43. Protocol of 1978 Relating to the International Convention for the Prevention of
Pollution from Ships, Feb. 17, 1978, 1340 U.N.T.S. 61. The 1978 Protocol amended,

29
 and merged with, the International Convention for the Prevention of Pollution from
Ships, 1973, 1340 U.N.T.S. 184, resulting in MARPOL 73/78. See Bodansky, supra
note 13, at 760 (noting that the discharge standards to be enforced pursuant to Article
218 are "presumably those reflected in MARPOL").

n44. UNCLOS, supra note 11, art. 218(3), at 488.

n45. Id. art. 211(1), at 483. This Article states that "States, acting through the
competent international organization or general diplomatic conference, shall establish
international rules and standards to prevent, reduce and control pollution of the
marine environment from vessels ... ." Id. (emphasis added). The competent
organization to which the Convention refers is the IMO. Churchill & Lowe, supra note
12, at 346-47; Bodansky, supra note 13, at 740; see also Impact of the Entry Into
Force of the 1982 UN Convention on the Law of the Sea on Related Existing and
Proposed Instruments and Programmes - Report of the UN Secretary-General, J, P 9,
UN Doc. A/52/491 (1997), reprinted in International Organizations and the Law of the
Sea: Documentary Yearbook 1997, at 99, 111 (Barbara Kwiatkowska et al. eds., 1999)
(stating that "the expression "competent international organization', when used in the
singular in UNCLOS, applies exclusively to IMO, bearing in mind the global mandate of
the organization as a special agency within the United Nations system ... .").

n46. See Molenaar, supra note 12, at 135 (noting that UNCLOS "not only harmonizes
national legislative activity with the establishment of rules and standards at the
international level, but also brings these rules and standards under the scope of
[UNLOS]").

n47. UNCLOS, supra note 11, art. 211(5), at 484 (emphasis added). See generally
Molenaar, supra note 12, at 136-43 (outlining existing regime of coastal state
jurisdiction).

n48. See Molenaar, supra note 12, at 140 ("The technique of using rules of reference
gives ... effective content to the regulatory duties of flag States, and limits coastal
State regulatory power."); see also id. at 150-51 (noting that the concept of GAIRAS,
when addressed to flag States, has the effect of establishing a minimum set of rules
the flag State must implement, i.e., a floor, but when addressed to coastal state
prescriptive jurisdiction it establishes a ceiling to coastal state authority).

n49. UNCLOS, supra note 11, art. 211(6)(a), at 484.

n50. See id. (articulating the procedure for coastal State submissions of mandatory
measures for approval).

n51. See supra note 38 and accompanying text; Molenaar, supra note 12, at 135
("Coastal States may prescribe and enforce national legislation wholly independent of
international rules and standards in only a very limited number of situations.").

n52. Vienna Convention on the Law of Treaties, May 23, 1969, arts. 31-32, 1155
U.N.T.S. 331, 340 (entered into force Jan. 27, 1980). See generally Rosalyn Higgins,
Problems and Process: International Law and How We Use It 28-32 (1994) (discussing
the interaction between customary and international law).

n53. See Higgins, supra note 52, at 28-29.

n54. E.g., Proclamation No. 5030, 3 C.F.R. 22 (1983 Comp.), reprinted in 3 U.S.C.

30
 1453 (2000) (delineating the EEZ of the United States consistent with that allowed by
customary international law and UNCLOS); Restatement (Third) of the Foreign
Relations Law of the United States 514 cmt. a (1987) (stating that state practice,
supported by the broad consensus of UNCLOS, has "effectively established as
customary law the concept of the exclusive economic zone, the width of the zone (up
to 200 nautical miles), and the basic rules governing it"); see also J. Ashley Roach &
Robert W. Smith, Excessive Maritime Claims 113-15 (1994) (discussing the United
States' proclamation of an EEZ); cf. George V. Galdorisi & Kevin R Vienna, Beyond the
Law of the Sea: New Directions for U.S. Oceans Policy 85 (1997) (advocating that the
United States ratify UNCLOS, and noting further that it will be increasingly difficult for
the United States to sustain the argument that the laws are embodied in customary
international law). The United States has not become a party to UNCLOS. See U.N.
Div. for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, Law of The Sea
Bulletin No. 46, at 9 (2001) [hereinafter Law of the Sea Bulletin] (listing countries that
have signed and ratified UNCLOS).

n55. Arctic Waters Pollution Prevention Act (AWPPA), R.S.C., ch. A-12 (1993) (Can.)
(prohibiting "pollution of areas of the artic waters adjacent to the mainland and islands
of the Canadian arctic"); see also infra notes 138-43 and accompanying text
(discussing AWPPA in more detail).

n56. Oil Pollution Act (OPA) of 1990, Pub. L. No. 101-380, 104 Stat. 484 (codified as
amended in scattered sections of 14, 16, 23, 26, 33, 43, and 46 U.S.C.); see also infra
notes 144-49 and accompanying text (discussing OPA in more detail).

n57. See Molenaar, supra note 12, at 84 (identifying the two statutes as examples of
jurisdiction based on the protective principle); see also id. at 84 n.50 (noting that the
1945 Truman Proclamations justified assertion of jurisdiction over the resources of its
continental shelf by appealing to the protective principle).

n58. See Restatement (Third) of The Foreign Relations Laws of the United States 514
cmt. a (commenting that although the concept of an EEZ has been established as part
of customary international law, "some of the detailed provisions in the Convention,
however, do not reflect customary law (as of 1987) and will be binding only when the
Convention comes into effect and only on states parties to the Convention").

n59. Churchill & Lowe, supra note 12, at 166; see also Molenaar, supra note 12, at
362 (describing the debate over the legal status of the EEZ during the early stages of
UNCLOS, and concluding that the dominant view is to treat the EEZ as a zone sui
generis).

n60. Molenaar supra note 12, at 79. Similarly, Professor Brown notes that:

 
While it is true that extensive freedoms will continue to be enjoyed by the international
community in [the EEZ], it is no longer part of the high seas and there is no longer
any presumption in favour of the principle of the freedom of the high seas. The EEZ is
rather a zone sui generis in which the coastal State and other States enjoy the rights
accorded to them in the Convention but in which there is no longer any governing,
residual, fundamental principle.
 
1 Brown, supra note 11, at 21. The text of UNCLOS Articles 56 and 86 appear to
support this view as well. See UNCLOS, supra note 11, art. 56, at 418 (describing

31
 coastal States' jurisdiction over the EEZ and its limits vis-a-vis the rights of other
States); id. art. 86, at 432 (explicitly excepting the EEZ from principles governing the
high seas).

n61. S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 19 (Sept. 7) (emphasis
added).

n62. See Shaw, supra note 12, at 484 (describing effects-based jurisdiction as where a
State assumes jurisdiction on the grounds that a party's actions outside of the State's
territory produce "effects" within the State's territory).

n63. United States v. Aluminum Co. of Am., 148 F.2d 416, 443 (2d Cir. 1945).

n64. See Restatement (Third) of Foreign Relations Law of the United States 402
(1987) ("Subject to 403, a state has jurisdiction to prescribe law with respect to ...
conduct outside its territory that has or is intended to have substantial effect within its
territory ... ." (emphasis added)); id. 402 cmt. d ("Jurisdiction with respect to activity
outside the state, but having or intended to have substantial effect within the state's
territory, is an aspect of jurisdiction based on territoriality, although it is sometimes
viewed as a distinct category." (emphasis added)).

n65. See id. 402 cmt. d ("This Restatement takes the position that a state may
exercise jurisdiction based on effects in the state, when the effect or intended effect is
substantial and the exercise of jurisdiction is reasonable under 403."); id. 403
(establishing factors to consider in determining the reasonableness of an exercise of
prescriptive jurisdiction).

n66. See Higgins, supra note 52, at 74.

n67. See Molenaar, supra note 12, at 83 (concluding that "although the effects
principle seems particularly suitable for applications in the economic sphere, similar to
the objective territorial principle it also has potential for the protection and
preservation of the marine environment").

n68. Brownlie, supra note 2, at 313.

n69. Here enforcement jurisdiction is equated with jurisdiction to apply, in the sense of
jurisdiction to adjudicate an outcome using laws of the State asserting the
extraterritorial jurisdiction. See supra note 12 (discussing the conceptual differences
between prescriptive and enforcement jurisdiction).

n70. Recognizing the conceptual differences between international law of the sea and
admiralty law, the discussion of admiralty law is appropriate for the way in which it is
applied extra-territorially.

n71. See EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 258-59 (1991) (noting that
"when it desires to do so, Congress knows how to place the high seas within the
jurisdictional reach of the statute," and citing numerous examples of legislation that
explicitly applies overseas (internal quotation marks omitted)).

n72. See 46 U.S.C. 6101(e)(1) (1994). This legislation may be viewed as based on the
passive personality principle because it is premised upon the vessel having embarked
or disembarked passengers in the United States or transported "passengers traveling
under any form of air and sea ticket package marketed in the United States." Id.
6101(e)(1)(A), (B). This legislation may also be viewed as based on the passive

32
 personality principle in that it is premised on the vessel having U.S. passengers. See
Shaw, supra note 12, at 467 ("Under [the passive personality principle], a state may
claim jurisdiction to try an individual for offences committed abroad which have
affected or will affect nationals of the state.").

n73. See Veldhoen v. United States Coast Guard, 838 F. Supp. 280, 283 (E.D. La.
1993) (holding that the Coast Guard was authorized to conduct an investigation of a
collision between two foreign vessels on the high seas, and noting that Congress
intended to depart from the principle of international law prohibiting any country from
asserting jurisdiction over foreign vessels on the high seas), aff'd on other grounds, 35
F.3d 222, 226 (5th Cir. 1994) (holding that district court lacked jurisdiction to review
the investigation because there was no final agency action). Even in the absence of a
statutory command, United States' courts occasionally may be inclined to exercised
extra-territorial jurisdiction in other maritime-related contexts. E.g., Neely v. Club
Med. Mgmt. Servs., Inc., 63 F.3d 166, 171 (3d Cir. 1995) (applying United States law
where a diving instructor employed at a foreign resort was injured by a charter boat's
propeller even though the accident occurred in the territorial waters of a foreign
country).

n74. See David VanderZwaag, Shipping and Marine Environmental Protection in

Canada: Rocking the Boat and Riding a Restless Sea, in Navigational Rights and
Freedoms and the New Law of the Sea 209, 210 (Donald R. Rothwell & Sam Bateman
eds., 2000). Specifically, Canada passed regulations prohibiting Spanish and
Portuguese vessels from fishing for Greenland Halibut on portions of the high seas,
beyond Canada's EEZ. Id. Canada's efforts to protect the Halibut stock reached their
apex when it seized the Spanish fishing vessel Estai in March 1995. Only after Canada
and the European Union negotiated a new fisheries agreement - establishing new
fishing quotas and placing observers on all vessels in the area - did Canada cease to
enforce its new regulations. Id.

n75. Brownlie, supra note 2, at 304 (defining the objective territorial principle as the
principle "according to which jurisdiction is founded when any essential constituent
element of a crime is consummated on state territory." (emphasis added)).

n76. See Horace B. Robertson Jr., The Suppression of Pirate Radio Broadcasting: A
Test Case of the International System for Control of Activities Outside National
Territory, Law & Contemp. Probs. 71, 84-94 (Winter 1982) (discussing the principles of
jurisdiction that supported taking action against pirate broadcasting and concluding
that objective territorial and protective principles were the strongest bases of
jurisdiction); see also N. March Hunnings, Pirate Broadcasting in European Waters, 14
Int'l & Comp. L.Q. 410, 430-32 (1965) (noting the application of extraterritorial
jurisdiction over vessels on the high seas in the pirate broadcasting context). See
generally H.F. van Punhuys & Menno J. van Emde Boas, Legal Aspects of Pirate
Broadcasting: A Dutch Approach, 60 Am. J. Int'l L. 303, 315-17 (1966) (discussing
bases for legal action against pirate broadcasting on the high seas).

n77. UNCLOS, supra note 11, art. 109, at 438 (delineating international rules against
unauthorized broadcasting from the high seas). UNCLOS authorizes prosecution of a
person engaged in broadcasting "before the court of" the flag State of the ship, the
State of registry of the installation, the State of which the person is a national, any
State where the transmissions can be received, or any State where authorized radio
communication is suffering interference. Id. art. 109(3), at 438.

33
 n78. Brownlie, supra note 2, at 304; see also Molenaar, supra note 12, at 81 (noting
that the distinction between these two principles of jurisdiction is "often only gradual
since the "significant effect' shows much similarity with the "constituent' element").
The objective territorial principle was first articulated and applied in the Lotus case.
See S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 23 (Sept. 7)
(assimilating a Turkish vessel to Turkish territory, the Permanent Court of
International Justice held that international law did not prohibit Turkey from
prosecuting the French watch officer, Lieutenant Demons, since the effects of the
offense - a collision - occurred on Turkish territory); see also Brownlie, supra note 2,
at 304 ("The objective principle received general support, and a controversial
application to collisions on the high seas in the Lotus case ... .").

n79. See Molenaar, supra note 12, at 82. This result occurs in economic effects cases
such as Alcoa. See United States v. Aluminum Co. of Am., 148 F.2d 416, 443 (2d Cir.
1945) (applying the effects principle to alleged violations of antitrust laws).

n80. UNCLOS, supra note 11, art. 109(3)(d), at 438.

n81. Id. art. 109(3)(e), at 438.

n82. See Brownlie, supra note 2, at 304 (describing the "classical illustration" of
objective territorial principle as the "firing of a gun across a frontier causing a homicide
on the territory of the forum").

n83. UNCLOS, supra note 11, art. 109(3)(e), at 438.

n84. See Bodansky, supra note 13, at 776 (questioning why oil pollution on the high
seas is less worthy of greater coastal state jurisdiction than is pirate radio
broadcasts); id. at 776 n.291 (quoting Robertson, supra note 76, at 100-01, for the
proposition that the pirate radio laws are significant because States accepted a "drastic
departure" from the traditional notions of freedom of the sea and exclusive flag state
jurisdiction despite its "weak justification to solve a largely nonexistent problem").

n85. Shaw, supra note 12, at 468-69.

n86. Brownlie, supra note 2, at 307 (identifying currency, immigration, and economic
offenses as common areas to which the protective principle is extended). The
Restatement adopts the position that the protective principle may be used to punish
offenses

 
directed against the security of the state or other offenses threatening the integrity of
governmental functions that are generally recognized as crimes by developed legal
systems, e.g., espionage, counterfeiting of the state's seal or currency, falsification of
official documents, as well as perjury before consular officials, and conspiracy to
violate the immigration or customs laws.
 
Restatement (Third) of the Foreign Relations Law of the United States 402 cmt. f
(1987).

n87. See Shaw, supra note 12, at 469 (noting that although the protective principle is
"well-established," there are "uncertainties as to how far it extends in practice and
particularly which acts are included within the net of claimed jurisdiction").

34
 n88. See, e.g., United States v. Felix-Gutierrez, 940 F.2d 1200, 1205-06 (9th Cir.
1991) (holding that the protective principle represented one ground for asserting
jurisdiction over an alleged accessory to the murder of a DEA agent in Mexico); United
States v. Benitez, 741 F.2d 1312, 1316 (11th Cir. 1984) (finding jurisdiction over
crimes committed in Columbia that adversely affected the security and governmental
functions of the United States); United States v. King, 552 F.2d 833, 851 (9th Cir.
1976) (noting that the protective principle is one legal basis for asserting jurisdiction
over extraterritorial activity).

n89. See Molenaar, supra note 12, at 84 (citing the Canadian and United States acts
as examples of jurisdiction over vessel-source pollution based on the protective
principle). UNCLOS itself might be seen to embrace the notion of the protective
principle by linking "sovereign rights" to jurisdiction to protect and preserve the
marine environment in the EEZ. See UNCLOS, supra note 11, art. 56(1)(b)(iii), at 418;
id. art. 193, at 478.

n90. See Sergei Vinogradov, "Tightening the Regulatory Web': Issues and Trends in
Navigation Regimes, in Order for the Oceans, supra note 30, at 471, 472 (noting that
the concept of security at sea has been broadened beyond military or naval security
issues).

n91. See id.; see also Bodansky, supra note 13, at 776 (noting that international law
jurisdiction has changed throughout the course of history in reaction to changing
circumstances, and suggesting that a reexamination of enforcement jurisdiction in the
marine pollution context may be warranted); Glenn Plant, The Relationship between
International Navigation Rights and Environmental Protection: A Legal Analysis of
Mandatory Ship Traffic Systems, in Competing Norms in the Law of Marine
Environmental Protection - Focus on Ship Safety and Pollution Prevention 27-28
(Henrik Ringbom ed., 1997) [hereinafter Competing Norms] (discussing the possible
pressures that coastal States might exert on the international legal system with
respect to marine environmental protection and the legal consequences of such
pressure).

n92. See Brownlie, supra note 2, at 308 (noting the application of universal jurisdiction
to cases of piracy); Shaw, supra note 12, at 470 (same). Judge Moore, dissenting in
the Lotus case, articulated universal jurisdiction over piracy thus:

 
Piracy by law of nations, in its jurisdictional aspects, is sui generis. Though statutes
may provide for its punishment, it is an offence against the law of nations; and as the
scene of the pirate's operations is the high seas, which it is not the right or duty of any
nation to police, he is denied the protection of the flag which he may carry, and is
treated as an outlaw, as the enemy of all mankind - hostis humani generis - whom any
nation may in the interest of all capture and punish.
 
S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 70 (Sept. 7) (Moore, J.,
dissenting).

n93. See S.S. Lotus, 1927 P.C.I.J. at 70 (Moore, J., dissenting) ("I say "piracy by law
of nations', because the municipal laws of many States denominate and punish as
"piracy' numerous acts which do not constitute piracy by law of nations, and which
therefore are not of universal cognizance, so as to be punishable by all nations."); see

35
 also P. W. Birnie, Piracy Past, Present, and Future, in Piracy at Sea 131, 133 (Eric Ellen
ed., 1989) ("The definition [of piracy] has evolved over the years in response to
states' needs as evidenced in state practice."); Barry Hart Dubner, The Law of
International Sea Piracy 40 (1980). As Professor Dunbar has articulated:

 
Under the municipal laws, nations define acts of piracy in order to meet their different
needs with the result that the various municipal laws regarding piracy differ in
definition and extent of coverage. There is no uniformity of definition in the municipal
legislation of different states. The municipal legislation will cover areas within which
the particular state has the jurisdictional competence to legislate (for example its right
to prescribe and enforce its domestic laws). Thus, the characteristics of the definitions
of acts of piracy will vary.
 
Id. (footnotes omitted).

n94. UNCLOS, supra note 11, art. 101, at 436. UNCLOS's codified international law
definition of piracy is as follows:

 
Piracy consists of any of the following acts:
 

 
(a) any illegal acts of violence or detention, or any act of depredation, committed for
private ends by the crew or the passengers of a private ship or a private aircraft, and
directed:
 

 
(i) on the high seas, against another ship or aircraft, or against persons or property on
board such ship or aircraft;
 

 
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of
any State;
 

 
(b) any act of voluntary participation in the operation of a ship or of an aircraft with
knowledge of facts making it a pirate ship or aircraft;
 

 
(c) any act of inciting or of intentionally facilitating an act described in subparagraph
(a) or (b).
 
Id.

n95. See Shaw, supra note 12, at 470 ("Offenses that may be characterised as

36
 piratical under municipal laws do not necessarily fall within the definition of piracy in
international law, and thus are not susceptible to universal jurisdiction (depending of
course upon the content and form of international conventions).").

n96. See UNCLOS, supra note 11, art. 105, 437 (authorizing any State to seize
pirates, pirate vessels, or vessels controlled by pirates on the high seas or any other
place outside a State's jurisdiction, and authorizing the State to impose penalties
and take action with respect to the seized property "subject to the rights of third
parties acting in good faith").

n97. See Higgins, supra note 52, at 58 (identifying piracy and slavery as offenses
generally regarded as subject to universal jurisdiction); Daniel G. Partan, The
International Law Process: Cases and Materials 401 (1992) (identifying piracy and
slave trading as falling under universal jurisdiction); Shaw, supra note 12, at 470
(identifying piracy and war crimes as clearly belonging within the "sphere of universal
jurisdiction").

n98. See Brownlie, supra note 2, at 308 (noting that drug trafficking and hijacking are
probably subject to universal jurisdiction); Partan, supra note 97, at 401 ("In the past
25 years the universal crime and universal jurisdiction idea has been extended from
piracy to a host of additional crimes: aircraft hijacking, assaults on diplomats, drug
trafficking, hostage-taking, torture, and perhaps other forms of international
terrorism."); cf. Shaw, supra note 12, at 473-78 (noting that many of the more
controversial applications of universal jurisdiction are usually based on treaty
obligations, which would only bind those States party to the treaty in question).

n99. See Higgins, supra note 52, at 58 (stating that acts subject to universal
jurisdiction are "commonly treated as criminal in the local jurisdiction of most states"
(footnote omitted)).

n100. See Birnie, supra note 93, at 135. Professor Birnie notes that:

 
Clearly by the 20th century piracy under the jus gentium was confined to the high
seas. In the territorial sea the concept of the jus gentium did not apply, unless
specifically enacted (as by the USA), because crimes committed within territorial
jurisdiction are perceived as crimes against the state, not the international community.
 
Id. at 135-36 (footnote omitted).

n101. See Brownlie, supra note 2, at 307 ("A considerable number of states have
adopted, usually with limitations, a principle allowing jurisdiction over acts of non-
nationals where the circumstances, including the nature of the crime, justify the
repression of some types of crime as a matter of international public policy."
(emphasis added)).

n102. Shaw, supra note 12, at 470. The activity to which universal jurisdiction is
extended, however, does not necessarily have to rise to the level of "criminal activity."
See Restatement (Third) of Foreign Relations Law of the United States 404 cmt. b
(1987) ("In general, jurisdiction on the basis of universal interests has been exercised
in the form of criminal law, but international law does not preclude the application of
non-criminal law on this basis ... .").

37
 n103. Report of the International Law Commission on the Work of its Forty-Third
Session (29 April-19 July 1991), Draft Code of Crimes Against the Peace and Security
of Mankind, arts. 6, 26, U.N. GAOR, 46th Sess., Supp. No. 10, at 198, 240, 250, U.N.
Doc. A/46/10, reprinted in [1991] 2 Y.B. Int'l L. Comm'n 79, U.N. Doc.
A/CN.4/Ser.A/1991/Add.1 (Part 2); Shaw, supra note 12, at 472-73 (discussing the
1991 Draft Code of Crimes Against the Peace and Security of Mankind).

n104. See Shaw, supra note 12, at 473 (noting that references to universal jurisdiction
with respect to subjects such as apartheid, mercenaries and the environment must be
considered as de lege ferenda).

n105. See Higgins, supra note 52, at 58 (noting that acts normally subject to universal
jurisdiction are perceived as "an attack upon international order").

n106. See Brownlie, supra note 2, at 308 (noting that universal jurisdiction probably
exists over drug trafficking and hijacking); cf. Partan, supra note 97, at 401
(discussing the expansion of universal jurisdiction through treaty-making over the past
twenty-five years to diverse crimes such as hostage-taking).

n107. See Molenaar, supra note 12, at 85 (discussing the limited potential of applying
universal jurisdiction over pollution, and noting the possible extension of such
jurisdiction in the International Law Commission's Draft Articles on State
Responsibility); Shaw, supra note 12, at 473 (noting that references to universal
jurisdiction with respect to subjects such as apartheid, mercenaries, and the
environment must be considered as de lege ferenda). But see Bodansky, supra note
13, at 776 ("It is not at all clear, though, why pollution on the high seas is of less
concern to the world community than say, unauthorized radio broadcasting or
piracy ... ."); Ludwik A. Teclaff, International Law and the Protection of the Oceans
from Pollution, in International Environmental Law 104, 139 (Ludwik A. Teclaff &
Albert E. Utton eds., 1974) (concluding that although pollution has not been made an
international crime, the "present-day polluter is more dangerous to the order of the
oceans than the pirate has ever been").

n108. See generally Higgins, supra note 52, at 56-65 (discussing the recent
extensions, and current limits, of universal jurisdiction); Shaw, supra note 12, at 471-
73 (same).

n109. See Bodansky, supra note 13, at 775 (noting that coastal state enforcement,
especially at-sea enforcement, "clearly [has] the greatest potential for infringing upon
navigational freedoms").

n110. See Molenaar, supra note 12, at 85 (noting that "enforcement, whether
territorial or extra-territorial, is only lawful if based on legislation that has been
enacted in accordance with international law").

n111. UNCLOS, supra note 11, art. 220(3), at 489. UNCLOS authorizes a coastal
State to take limited enforcement measures - for example, requesting information and
inspecting the vessel involved - where the State has "clear grounds for believing that a
vessel navigating in the exclusive economic zone or the territorial sea of [the] State
has, in the exclusive economic zone, committed a violation of applicable international
rules and standards" governing vessel-source pollution. Id. art. 220(3), (5), at 489. In
rare cases - where "major damage or threat of major damage" exists - the coastal
State may arrest and prosecute the vessel. Id. art. 220(6), at 489. See generally
Molenaar, supra note 12, at 385 (discussing these UNCLOS provisions).

38
 n112. See UNCLOS, supra note 11, art. 218(1), (2), at 487-88 (outlining conditions
governing port state enforcement).

n113. See Churchill & Lowe, supra note 12, at 346-47 (noting that the competent
international organization is the IMO); Bodansky, supra note 13, at 740 (same); see
also Molenaar, supra note 12, at 105 (noting that the rules and standards to be
enforced under UNCLOS would have to be established by either the competent
international organization or general diplomatic conference).

n114. See Roach & Smith, supra note 54, at 3 (citing the expansion of the territorial
sea and the EEZ as examples of the "historic trend ... for the commonly shared rights
of all users of the seas to be diminished by coastal State claims to exercise rights
further from shore").

n115. See 1 Brown, supra note 11, at 9-10 (identifying factors causing shifts in the
international law of the sea framework).

n116. See id. at 8-9. Professor Brown identifies two periods of change in the
international law of the sea framework. The first period, 1945-1960, was principally a
period of consolidation, clarification, and codification of existing law and partly a period
of progressive development of the law in response to technological change. Id. at 9.
The second period, beginning in the 1960s and continuing today, saw the extension of
fisheries zones and exclusive economic zones and the establishment of the regime for
the "Area," beyond the limits of traditional national jurisdiction. Id. at 9-10. UNCLOS
defines the "Area" as the "sea-bed and ocean floor and subsoil thereof, beyond the
limits of national jurisdiction." UNCLOS, supra note 11, art. 1(1)(1), at 399.

n117. Fisheries Jurisdiction (U.K. v. Ice.), 1974 I.C.J. 3, 29 (July 25).

n118. See id. at 30.

n119. Id. at 31.

n120. See Alexander Yankov, The International Tribunal for the Law of the Sea: Its
Place Within the Dispute Settlement System of the UN Law of the Sea Convention, 37
Indian J. Int'l L. 356, 360 (1997) ("The extension of the exploration and exploitation of
the marine resources, and the pollution from navigation and land-based resources may
also lead to disputes arising out of claims concerning responsibility and liability for
harm to the marine environment."). Judge Yankov, a member of the International
Tribunal for the Law of the Sea, also notes that the number of cases relating to
maritime disputes brought in international courts (PCIJ and the ICJ) as a ratio of the
total cases brought in those courts increased from about 10% in the periods of 1922-
1940 (PCIJ) and 1946-1968 (ICJ) to about 40 to 43% of all cases in the 1980s and
1990s. Id. at 359. Another commentator has noted that "violations of the Convention
increase year by year. They are connected, in particular, to the attempts of certain
countries to extend their jurisdictions beyond what is permitted in the Law of the Sea
Convention." Igor K. Kolossovsky, The Future of the UN Law of the Sea Convention
and Maintenance of Legal Order and Peace in the Oceans in the 21st Century, Address
Before The Law of the Sea Institute: Twenty-Seventh Annual Conference (July 1993),
in The Role of the Oceans in the 21st Century 321, 321 (Seoung-Yong Hong et al.
eds., 1995); see also Thomas A. Mensah, The Role of Peaceful Dispute Settlement in
Contemporary Ocean Policy and Law, in Order for the Oceans, supra note 30, at 81,
86-87 (identifying potential sources of disputes regarding Law of the Sea issues).

39
 n121. Statute of the International Court of Justice, art. 38(1)(b), Doc. 932, IV/1/79,
13 U.N.C.I.O. Docs. 396, at 405 (1945).

n122. See Asylum (Colom. v. Peru) 1950 I.C.J. 266, at 276-77 (Nov. 20) (noting that
a rule of customary international law develops from "constant and uniform usage
practiced by the States in question"); Brownlie, supra note 2, at 4-7 (discussing the
elements of "custom" and its effect on States' conception of legal obligation).

n123. One of the single most comprehensive studies of coastal state jurisdiction
over vessel-source pollution to date is Erik Jaap Molenaar's Coastal State
Jurisdiction over Vessel-Source Pollution, supra note 12. The conclusions in this Note
are extensively and predominately drawn from the data Professor Molenaar has
collected.

n124. See Molenaar, supra note 12, at 367-71 (tabulating the number of States that
have established an EEZ, and noting the further jurisdictional steps, if any, they have
taken). As of July 31, 2001, the number of countries that have ratified UNCLOS stands
at 136. Law of the Sea Bulletin, supra note 54, at 1.

n125. See Molenaar, supra note 12, at 367. This list, compiled by Professor Molenaar,
does not include the last state, Congo, whose legislation was not available to be
analyzed. Id. n.27.

n126. See id. at 373 (noting that Canada's exercise of prescriptive jurisdiction,
enacted before it adopted an EEZ, does not distinguish between the territorial sea and
the EEZ and could therefore lead to conflicts with UNCLOS); see also id. at 376-78
(identifying potential conflicts between the United States Oil Pollution Act of 1990 and
UNCLOS provisions).

n127. Id. at 398.

n128. Id. at 381 (concluding that state practice indicates that some States claim
""exclusive' jurisdiction or other formulations to that effect" or have legislation that
contains vague terminology that may not be consistent with UNCLOS).

n129. See UNCLOS, supra note 11, art. 211(6), at 484 (authorizing coastal States to
prescribe special mandatory measures to prevent pollution in particular areas, with
approval by the IMO, where generally accepted rules and standards are inadequate).

n130. See Molenaar, supra note 12, at 370 (arguing that applying the same
prescriptive language to the two zones is not "automatically incompatible" with
UNCLOS).

n131. The Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other
Maritime Zones Act, 1976, Act No. 80 of 28 May 1976, art. 7(7)(a), in U.N. Div. for
Ocean Affairs and the Law of the Sea, Office of Legal Affairs, The Law of the Sea:
National Legislation on the Exclusive Economic Zone at 135, 137, U.N. Sales No.
E.93.V.10 (1993).

n132. See Molenaar, supra 12, at 370-71 (identifying the possible conflict between the
Indian legislation and UNCLOS).

n133. See id. at 371 (identifying Barbados, Grenada, Guyana, Mauritius, Pakistan,
Samoa, Seychelles, Sri Lanka, and Vanuatu as having legislation similar to India's).

40
 n134. See id. at 372 (identifying in particular Cape Verde's legislation prohibiting
activities that "cause pollution or harm the marine environment, or are prejudicial to
the resources in the national maritime areas or to the economic interests of the
Republic of Cape Verde" as possibly inconsistent with the obligation to prescribe
regulations consistent with GAIRAS); see also id. at 372 n.37 (identifying Bulgaria,
Gabon, Morocco, Romania, the Russian Federation, and Yemen as countries that have
legislation that is similarly broad and that thus raises concerns about consistency with
UNCLOS and MARPOL 73/78).

n135. The legislation in question, Article 27 of Law No. 60/IV/92 delimiting the
maritime areas of the Republic of Cape Verde and revoking Decree-Law No. 126/77
and all legal provisions which contravene this law, states: "Any activities which cause
pollution or harm the marine environment, or are prejudicial to the resources in the
national maritime areas or to the economic interest of the Republic of Cape Verde shall
be prohibited." U.N. Div. for Ocean Affairs and the Law of the Sea, Office of Legal
Affairs, The Law of The Sea: Current Developments in State Practice No. IV, at 34, 40,
U.N. Sales No. E.95.V.10 (1995) [hereinafter Current Developments in State Practice
No. IV].

n136. Id.

n137. See Molenaar, supra note 12, at 376 (noting that Article 2, 1991 Order of Spain,
requires tankers to request permission to anchor temporarily in the Spanish EEZ,
Article 3 subjects the vessel to inspection, and Article 4 prohibits the cleaning of
tanks); see also Act No. 27/1992 of 24 November 1992 Concerning National Ports and
Merchant Shipping, in Current Developments in State Practice No. IV, supra note 135,
at 90, art. 112, at 102 (identifying measures that Spain reserves the right to take to
protect the marine environment).

n138. See Molenaar, supra note 12, at 373, 376-78 (discussing the possible conflicts
between UNCLOS and Canadian and United States legislation).

n139. Arctic Waters Pollution Prevention Act (AWPPA), R.S.C., ch. A-12 (1993) (Can.)
(prohibiting "pollution of areas of the artic waters adjacent to the mainland and islands
of the Canadian arctic").

n140. Molenaar, supra note 12, at 421-22 (noting that the Canadian legislation was
the subject of much commentary because it extended jurisdiction beyond international
law limits). Under AWPPA, Canada also asserts extensive jurisdiction to enforce the
Act's provisions. See id. at 423 (delineating various enforcement provisions in AWPPA).

n141. See UNCLOS, supra note 11, art. 234, at 493 (providing coastal States the
right to "adopt and enforce non-discriminatory laws and regulations for the prevention,
reduction and control of marine pollution from vessels in ice-covered areas within the
limits of the exclusive economic zone" pursuant to specific conditions). Of particular
note, Article 234 differs from Article 211(5) in that GAIRAS are not required under
Article 234. Compare id. art. 211(5), at 484, with id. art. 234, at 493.

n142. Canadian Shipping Act (CSA), R.S.C., ch. S-9 (1993) (Can.); see Molenaar,
supra note 12, at 373 (noting that Canada has "exercised jurisdiction over vessel-
source pollution within (practically)" what is now its EEZ through the CSA, which was
enacted in 1972). Canada did not officially establish its EEZ until 1996. Oceans Act, ch.
31, 1996 S.C. 13(1) (Can.).

41
 n143. See Ted L. McDorman, Canada's Ocean Limits and Boundaries: An Overview, in
Oceans Law and Policy in the Post-UNCED Era: Australian and Canadian Perspectives
113, 119 (Lorne K. Kriwoken et al. eds., 1996) [hereinafter Australian and Canadian
Perspectives] (noting that Canada's vessel-source pollution laws make no distinction
between the territorial sea and the 200 nautical mile zone, previously called the EFZ
but now identified as the EEZ); see also Aldo Chircop, Canada and the Law of the Sea:
Perspectives and Issues for Canadian Accession, in Australian and Canadian
Perspectives, supra, at 75, 84 (noting that the Canadian Committee on Oceans and
Coasts of the National Advisory Board on Science and Technology has recommended
that Canada extend its environmental regulations to the EEZ). Contra VanderZwaag,
supra note 74, at 212 (stating that Canada's maritime claims are in line with
UNCLOS).

n144. See Molenaar, supra note 12, at 373 (concluding that because the Canadian
Shipping Act does not distinguish between applicability to the territorial sea and the
EEZ, there exists the potential for conflict between the Canadian act and UNCLOS).

n145. Oil Pollution Act (OPA) of 1990, Pub. L. No. 101-380, 104 Stat. 484 (codified as
amended in scattered sections of 14, 16, 23, 26, 33, 43, and 46 U.S.C.). OPA was
enacted in the wake of the 1989 Exxon Valdez grounding, which spilled 30,000 to
40,000 tons of oil in Prince William Sound, Alaska. Brubaker, supra note 3, at 10;
Mitchell, supra note 8, at 69 n.2.

n146. See Molenaar, supra note 12, at 84 (citing OPA as an example of jurisdiction
based on the protective principle); id. at 377 ("In exercising this extra-territorial
jurisdiction the United States might feel justified by the effects or impact doctrine.").

n147. See 33 U.S.C. 2716(a)(2) (1994 & Supp. V 1999).

n148. See 46 U.S.C. 3715(a) (1994). Section 3715(a) requires, inter alia, transferring
ships to have certificates of compliance and certificates of financial responsibility in
order to "transfer oil or hazardous material in a port or place subject to the jurisdiction
of the United States, when the cargo has been transferred from another vessel on the
navigable waters of the United States or in the marine environment." Id. Professor
Molenaar asserts that the term "marine environment" includes the EEZ in the context
of the legislation. See Molenaar, supra note 12, at 377 n.61.

n149. Molenaar, supra note 12, at 376-77 (noting that the impact on the freedom of
navigation is arguably an "unjustifiable interference with activities carried out by other
States in the exercise of their rights" under UNCLOS, Article 194(4) (internal quotation
marks omitted)).

n150. See Erik Franckx, The ILA Survey on Coastal State Jurisdiction with Special
Reference to Regional Rules, in Competing Norms, supra note 91, at 59, 74 (noting
that the United States' assertion of prescriptive jurisdiction in the EEZ is greater than
UNCLOS allows); see also John E. Noyes, Case Study of the United States of America,
in Vessel-source Pollution and Coastal State Jurisdiction: The Work of the ILA
Committee on Coastal State Jurisdiction Relating to Marine Pollution (1991-2000)
357, 384 (Erik Franckx ed., 2001) ("Despite these statutory assurances [directing that
United States statutes be applied in accordance with principles of international law or
United States treaties], one may anticipate a few concerns about the compatibility of
US practice relating to marine pollution with international law, and especially with
provisions in [UNCLOS]."); cf. Molenaar, supra note 12, at 377 (characterizing the
United States' assertion of prescriptive jurisdiction in this case as a "very extensive

42
 and unusual exercise of port State jurisdiction").

n151. See Molenaar, supra note 12, at 381 (concluding that the consistency between
the United States' legislation and UNCLOS is "not evident," but that the "absence of
other inconsistencies suggests a large measure of conformity with [UNCLOS]").

n152. See Morell, supra note 17, at 199-200 (discussing the United States' interest in
including environmental protection measures in UNCLOS).

n153. See UNCLOS, supra note 11, art. 211(6)(a), at 484. See generally Molenaar,
supra note 12, at 402-19 (describing the regulatory procedures for implementing
special areas under Article 211(6)).

n154. See UNCLOS, supra note 11, art. 211(6), at 484; see also Molenaar, supra note
12, at 403 ("Although it seems that special areas established pursuant to Article
211(6) are intended to cover only part of an EEZ, and not entirely, there would be no
fundamental reasons against this.").

n155. See Molenar, supra note 12, at 408.

n156. See id. at 410-12 (identifying the countries' legislation as examples). Australia
designated the Great Barrier Reef Region as a designated park, which the IMO later
identified as a Particularly Sensitive Sea Area under the regulatory regime, id. at 413,
but the vessel-discharge requirements seem consistent with MARPOL 73/78, id. at 415
n.45.

n157. See id. at 418 ("None of the States with legislation allowing for the designation
of special pollution prevention areas that (partly) extend beyond the territorial sea,
refer to the need of following the designation procedure envisaged in Article 211(6).").

n158. See id. (noting that UNCLOS procedures might be followed or that another type
of international recognition of the protected areas might be sought).

n159. See id. ("The discharge and anchoring regulations which apply in several of [the
United States'] marine sanctuaries do not seem consistent with [UNCLOS].");
Bodansky, supra note 13, at 766 & n.242 (noting that some United States regulations
concerning anchoring may be inconsistent with Article 211 of UNCLOS).

n160. Marine Protection, Research, and Sanctuaries Act of 1972, 16 U.S.C. 1431-1447
(2000), 33 U.S.C. 1401-1445, 2801-2805 (1994 & Supp. V 1999).

n161. 16 U.S.C. 1432(3) (defining the "marine environment" for the purposes of the
act to include "the exclusive economic zone, consistent with international law").

n162. Id. 1435(a).

n163. Id. 1435(a)(1)-(3).

n164. 15 C.F.R. 922.91(a)(2) (2002).

n165. Id. 922.111(a)(1).

n166. Id. 922.122(a)(3).

n167. Id. 922.132(a)(2).

43
 n168. Id. 922.152(a)(2).

n169. See Molenaar, supra note 12, at 417 (noting that the discharge standards are
more stringent than MARPOL 73/78 standards and therefore exceed GAIRAS).

n170. See id. (noting that such regulations cannot be regarded as "generally
accepted"); see also Bodansky, supra note 13, at 766 ("Since ship anchoring is an
incident of navigation and the suggested U.S. regulations do not conform and give
effect to any generally accepted international rules and standards, the regulations are
inconsistent with article 211.").

n171. See Molenaar, supra note 12, at 417-18; see also Bodansky, supra note 13, at
766 & n.241 (citing the U.S. Department of Commerce Environmental Impact
Statement for the Flower Garden Banks National Sanctuary, which indicates that the
U.S. may, under international law, prohibit foreign flag vessels from anchoring in the
sanctuary in the EEZ).

n172. UNCLOS, supra note 11, art. 59, at 419 (noting that where UNCLOS does not
delineate rights and jurisdictional competences within the EEZ as between the coastal
State and other States, "conflicts should be resolved on the basis of equity and in the
light of all the relevant circumstances, taking into account the respective importance of
the interests involved to the parties as well as to the international community as a
whole").

n173. Id. art. 78(2), at 430 ("The exercise of the rights of the coastal State over the
continental shelf must not infringe or result in any unjustifiable interference with
navigation and other rights and freedoms of other States as provided for in this
Convention.").

n174. See Molenaar, supra note 12, at 418 (arguing that acceptance of the U.S.
interpretation threatens to undermine the navigation/environmental protection balance
struck in UNCLOS Part XII); Bodansky supra note 13, at 766-67 (noting that if the U.S
position is correct then "it opens the door to other assertions of "protective jurisdiction'
by coastal states in their EEZ, and the issue again becomes one of assessing the
impact of these regulations on the navigational interests of maritime states"); Scott A.
Hajost, The United States Marine Sanctuaries Program and Freedom of Navigation, in
International Navigation: Rocks and Shoals Ahead? 283, 293-94 (Jon M. Van Dyke et
al. eds., 1988) (discussing and agreeing with United States' justification for
establishing anchorage restrictions, but recognizing that "a precedent has been
established which may be awkward if followed in another factual situation" if the
implementing coastal State was not sensitive to navigational freedom concerns).

n175. See supra notes 47-51 and accompanying text (describing limits on a State's
ability to prescribe additional rules to protect its EEZ beyond those provided by
UNCLOS).

n176. See Franckx, supra note 150, at 67 (noting that Part XII of UNCLOS "represents
a balancing exercise between those willing to safeguard the freedom of navigation and
those pressing for a greater protection and preservation of the marine environment").

n177. See Molenaar, supra note 12, at 399 (summarizing the general trend of state
practice regarding claims of prescriptive and enforcement jurisdiction).

n178. See id. at 381 (concluding that two, and possibly five, States assert prescriptive

44
 jurisdiction over vessel-source pollution in the EEZ).

n179. See id. (noting the large measure of conformity with UNCLOS).

n180. See id. (discussing the lack of consistency among state practice with respect to
legislation governing marine pollution in the EEZ area); Bodansky, supra note 13, at
723 (noting that UNCLOS's vessel-source pollution provisions "have arguably become
norms of customary international law").

n181. See, e.g., Bodansky, supra note 13, at 766 & n.241 (noting that the United
States' justification for its jurisdiction to prohibit anchoring in the Flower Garden Banks
sanctuary is one of resource protection).

n182. U.N. Conference on Environment and Development: Rio Declaration on

Environment and Development, U.N. Doc. A/CONF.151/5/Rev.1 (June 14, 1992), 31
I.L.M. 874 (1992).

n183. See 1 Brown, supra note 11, at 339-340 (discussing the role of the sustainable
use and precautionary principles developed at UNCED as applied in the law of the sea
context); Lynne M. Jurgielewicz, Global Environmental Change and International Law:
Prospects for Progress in the Legal Order 63-65 (1996) (discussing the development of
the precautionary principle and its inclusion in the Rio Declaration, but concluding that
it "is not yet an accepted principle of international law"); Molenaar, supra note 12, at
55-56 (discussing UNCED's relationship to international marine environmental
protection).

n184. See Roach & Smith, supra note 54, at 3 ("Since 1945 the trend has been clearly
toward enclosing the oceans with ever broader coastal State claims of sovereignty or
other competence to exclude other users of the oceans."); Biliana Cicin-Sain & Robert
W. Knecht, The Future of U.S. Ocean Policy: Choices for the New Century 33-34
(2000) (discussing the "enclosure movement" by coastal States with respect to
resource and environmental protection).

n185. See Henrik Ringbom, Introduction, in Competing Norms, supra note 91, at 2
(noting that compromises resulting from the international negotiation of regulations
may cause the losing States to become frustrated with the inability of the international
community to meet their expectations, thus increasing the pressure for national or
regional regulatory alternatives); see also id. at 4 (discussing the tendency towards
decentralization with respect to rulemaking).

n186. See Satya N. Nandan, An introduction to the 1982 United Nations Convention on
the Law of the Sea, in Order for the Oceans, supra note 30, at 9 & n.1 (identifying
Ambassador Tommy T.B. Koh of Singapore, President of the Third United Nations
Conference on the Law of the Sea, as describing UNCLOS as a "Constitution for the
Oceans").

n187. See Ringbom, supra note 185, at 2 (noting that the fact that UNCLOS led to a
certain degree of settlement of the law of the sea does not imply that all matters
related to jurisdictional rights and duties are now solved); see also Richard Falk & Hilal
Elver, Comparing Global Perspectives: The 1982 UNCLOS and the 1992 UNCED, in
Order for the Oceans, supra note 30, at 145, 149 (stating that the public order of the
ocean is "an evolving process that cannot be comprehended by ignoring major global
developments subsequent to UNCLOS III").

45
 n188. See Bodansky, supra note 13, at 771-72 (arguing that increased concerns by
coastal States regarding the marine environment increase pressure to change the
UNCLOS framework).

n189. See UNCLOS, supra note 11, art. 211(1), at 483 ("Such rules and standards
shall, in the same manner, be re-examined from time to time as necessary."); see also
Bodansky, supra note 13, at 772 (noting that UNCLOS provides flexibility for
evaluating and modifying international rules and standards).

n190. See UNCLOS, supra note 11, art. 211(1), at 483.

n191. See Bodansky, supra note 13, at 771-77 (suggesting the possibility of such
changes). But see Plant, supra note 91, at 11, 28 (noting that such changes are
"probably unrealistic").

n192. See Bodansky, supra note 13, at 772 (presenting increased coastal state
jurisdiction as one of two alternative ways to increase coastal States' ability to
protect the environment, while preserving the UNCLOS framework). Professor Plant
notes that since the entry into force of UNCLOS there has been little evidence of a
reversal of the trend of coastal States increasingly seeking to protect their coasts
from vessel-source pollution. States have sought to increase protection through such
measures as regulatory traffic measures, requiring vessels to notify the coastal State,
or, in extreme cases, seek permission to enter the coastal State's territorial seas,
EEZ, or other jurisdictional waters. Plant, supra note 91, at 11-12.

n193. See Plant, supra note 91, at 15 (noting that since January 1996 Safety of Life at
Sea ("SOLAS") Regulation V/8-1 has authorized the IMO to adopt state-designated
SRSs, which are mandatory for foreign ships, that extend even beyond the responsible
State's territorial sea). The IMO - since January 1997 - also has been empowered to
adopt mandatory state-designated ship routing systems. Id. A "ship reporting system"
("SRS") is a system in which vessels report certain information to the coastal State
maintaining the SRS; information might include the vessel name, radio call signs,
position, speed, and course. See id. at 20. By contrast, a ship routing system requires
vessels meeting certain criteria - for example, vessel size or type of cargo carried - to
use specific traffic routes. See id. at 21-22, 24-25. Thus, ship routing systems are
more restrictive than are reporting systems in that they allow the coastal State to
actually direct the routes vessels use, an inherently greater restriction on the freedom
of navigation. In between is the Vessel Traffic System ("VTS"), in which two-way
communication occurs between the vessel and the coastal State; the vessel reports
the same information given in a SRS, while the coastal State gives the vessel
information (on the location of other vessels or activity), advice on routes to take or
areas to avoid, and, on some (rare) occasions, instructions. See id. at 20.

n194. See id. at 17.

n195. See id. at 15 & n.15.

n196. See id. at 15 & n.16 (identifying the new systems of "The Great Belt Traffic VTS
(Denmark)," the "In the Finisterre Traffic Separation Scheme (Spain)," and the "In the
Strait of Gibraltar Traffic Separation Scheme (Spain and Morocco)" that were approved
in December 1996).

n197. See Jeffrey P. Luster, The International Maritime Organization's New Mandatory
Ship Reporting System for the Northern Right Whale's Critical Habitat: A Legitimate

46
 Approach to Strengthening the Endangered Species Act?, 46 Naval L. Rev. 153, 153
(1999). The northern right whale mandatory reporting system regulations are found at
33 C.F.R 169 (2001).

n198. See Plant, supra note 91, at 15 n.19 (citing IMO Doc NAV 42/4/4, 15 April
1996).

n199. See Luster, supra note 197, at 164-65 (noting that the United States' original
legal justification for the SRSs was exclusively in terms of protecting the right whale,
which many IMO member states argued was "improper and inconsistent with the
purpose of MSR systems").

n200. The United States eventually modified its proposal to reduce concerns that the
system would lead to identification of vessels involved in ship-strikes of whales for
prosecution, would be used as a restraint on freedom of navigation, and would cause a
proliferation of similar systems. See id. at 166.

n201. See Plant, supra note 91, at 27 ("[Traffic measures] do little, if anything, to
ensure that the ship is seaworthy in the first place and properly operated in the waters
in question or to prevent operational discharges.").

n202. Professor Plant notes that although it can be argued that such systems may in
fact facilitate navigation, the distances added to voyages by requiring vessels to divert
in order to use a mandatory routing system can be costly to ship operators and
therefore appears inconsistent with the notion that such systems do not hinder
freedom to navigate. Id. at 26-27. These actions nevertheless show that the
international community is willing to take steps to reduce oil pollution, even at the cost
of restricting freedom to navigation. As professor Plant points out, "even strongly
traditional maritime states have demonstrated a willingness to act in the aftermath of
three major shipping casualties at the end of 1992 and at the beginning of 1993 [the
Braer, Aegean Sea, and Maersk Navigator incidents], which resulted in major pollution
and widespread political reactions thereto, especially in Western Europe." Id. at 12 &
n.5. Although such States have been willing to accept some change in the
responsibilities and jurisdictional balances between maritime and coastal States, that
willingness has thus far only extended to the adoption of traffic measures, as opposed
to discharge or "construction, design, equipment and manning" ("CDEM") standards.
Id. at 12.

n203. See UNCLOS, supra note 11, art. 58(1), at 419 (providing all States with the
freedom to enjoy "internationally lawful uses of the sea" in the EEZ).

n204. See id. arts. 17-19, at 404-05 (outlining the innocent passage regime in the
territorial sea).

n205. See id. art. 19, at 404-05 (defining "innocent" passage). Coastal States,
however, may, and often do, prescribe traffic separation or routing schemes in their
territorial seas.

n206. See supra notes 41-44 and accompanying text (discussing port State
enforcement under UNCLOS).

n207. See supra note 9 (describing intentional discharges).

n208. UNCLOS often establishes separate and distinct rules for warships as opposed to

47
 other vessels. Compare UNCLOS, supra note 11, Part II, section 3, subsection A, at
404 ("Rules Applicable to All Ships"), and subsection B, at 407 ("Rules Applicable to
Merchant Ships and Government Ships Operated for Commercial Purposes"), with
subsection C, at 408 ("Rule Applicable to Warships and Other Government Ships
Operated for Non-commercial Purposes"). See also id. art. 95, at 435 ("Warships on
the high seas have complete immunity from the jurisdiction of any State other than
the flag State.").

n209. See supra notes 115-21 and accompanying text (discussing how changing
notions of customary international law have led to a shift in the jurisdictional authority
from flag States to coastal States).

n210. See UNCLOS, supra note 11, art. 192, at 477 ("States have the obligation to
protect and preserve the marine environment.").

n211. See Molenaar, supra note 12, at 42 (noting that the negative terms of Article
192 prohibit "deliberate, or even careless degradation of the marine environment" and
that "operational discharges can no longer be seen as an (implicit) freedom of the high
seas").

n212. See id. at 518 (identifying the IMO's role in readjusting the jurisdictional
balance).

n213. See supra notes 47-51 and accompanying text (arguing that in limiting coastal
state prescriptive jurisdiction, UNCLOS does not necessarily prohibit further expansion
of coastal state jurisdiction through customary international law).

n214. The IMO is one of the competent organizations contemplated by UNCLOS Article
211, at least with respect to the oil pollution standards. See Churchill & Lowe, supra
note 12, at 346-47. Here the constitution-statute metaphor begins to break down.
Although UNCLOS is described as a "Constitution for the Oceans," it is a codification of
then existing and new international law of the sea, not unlike a statute. Nonetheless, if
UNCLOS is viewed as a "constitution" of sorts, setting the yet to be defined
jurisdictional perimeter, then IMO regulations or other GAIRAS can be viewed as
"statutes," helping to provide content to that jurisdictional perimeter.

n215. See generally Protocol of 1978 Relating to the International Convention for the
Prevention of Pollution from Ships, Feb. 17, 1978, 1340 U.N.T.S. 61 (specifying
discharge standards in specific geographical areas); Bodansky, supra note 13, at 760
(noting that the discharge standards to be enforced pursuant to Article 218 are
"presumably those reflected in MARPOL"). See also supra note 43 and accompanying
text (discussing the genesis of MARPOL 73/78). For a comprehensive table outlining
the existing oil pollution standards, see Molenaar, supra note 12, at 68-69 tbl.III.1.

n216. See UNCLOS, supra note 11, art. 211(1), (5), at 483, 484 (delineating States'
rights to adopt, through the competent international organization or the general
diplomatic conference, laws and regulations for the "prevention, reduction and control
of pollution" that are consistent with GAIRAS); see also Molenaar, supra note 12, at
531 ("In view of the failure of flag States to adequately deal with vessel-source
pollution, it is in principle not objectionable that those facing the environmental
consequences of this failure, viz. coastal States, exercise existing powers more
determinedly and, in certain instances, are granted more extensive jurisdiction.").

n217. UNCLOS, supra note 11, art. 211(1), at 483 (directing that "international rules

48
 and standards to prevent, reduce and control pollution of the marine environment from
vessels ... be re-examined from time to time as necessary"); see also Bodansky, supra
note 13, at 772 (noting that the UNCLOS framework includes such a process).

n218. Cf. Bodansky, supra note 13, at 772 ("In this manner, the international
community could address new concerns and problems without altering the
jurisdictional balance set forth in UNCLOS III.").

n219. Cf. id. at 775 (arguing that new prescriptive jurisdictional rules could take
account of relevant state interests).

n220. Plant, supra note 91, at 23 (internal quotation marks omitted).

n221. Id. (internal quotation marks omitted).

n222. Id. at 24 (internal quotation marks omitted) (omissions and brackets in

original). Professor Plant identifies these traffic separation schemes as ship reporting
systems, but notes that when they were submitted to the IMO's Marine Safety
Committee, Russia reserved its position on them on the ground that they are "in
reality all mandatory VTS systems." Id.

n223. See Luster, supra note 197, at 167 (internal quotation marks omitted). The
three limitations were: (1) the population of marine species was threatened with
immediate extinction; (2) major shipping routes pass through the species' critical
habitats; and (3) the "greatest known threat" to the population's survival and recovery
was direct physical impact of vessels. Id. SOLAS is the International Convention for
the Safety of Life at Sea, opened for signature Nov. 1, 1974, 32 U.S.T. 47, 1184
U.N.T.S. 278 (entered into force May 25, 1980). SOLAS generally regulates vessel
safety.

n224. See Bodansky, supra note 13, at 775 (arguing that new jurisdictional rules could
be fashioned in such a way that some regulations, which had a severe impact on
navigational freedoms relative to the coastal state interests would be prohibited,
while less severe rules when the coastal state interest was high, would be viewed
more favorably).

n225. See UNCLOS, supra note 11, art. 211(6)(a), at 484; see also supra notes 129,
216 (discussing IMO's role under UNCLOS Article 211).

n226. See UNCLOS, supra note 11, art. 211(5), at 484. If such rules were adopted
within this framework, UNCLOS would presumably authorize limited enforcement as
well. Id. art. 220(3), (6), at 489.

n227. Id. art. 211(6), at 484.

n228. See Plant, supra note 91, at 28 (arguing that allowing departures from the
existing navigation/environmental balance in areas that are objectively determined to
be sensitive or vulnerable might not be unrealistic).

n229. See id. at 28 (discussing the possibility of using PSSAs as a way of increasing
coastal state jurisdiction).

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 Source [Boston University Law Review]

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