The regulation of international navigation for the purposes of environmental protection

Abstract

This study aims to assess the relationship between the freedom of navigation, asserted mainly by maritime states and the right to a healthy marine environment, claimed primarily by coastal states. The Law of the Sea Convention (1982), regulates navigational rights of foreign ships in the various maritime zones of the respective coastal states. Therefore, the freedom of navigation is qualified. The right to a clean marine environment is firmly established under treaty law. Various Conventions, both on the global level as well as on the regional plane, have been entered into in this respect. MARPOL 73/78 establishes certain technical considerations to which ships must comply before being considered seaworthy. Thus, no state has the right to sail any vessel, which could be a potential environmental hazard, on the pretext that the right of the freedom of navigation should not depend on the technical characteristics of the vessel. Other Conventions establish the principle that once a vessel is guilty of damage to the marine environment, it must pay damages. This is another restriction on the freedom of navigation - a polluting vessel is free to navigate in certain waters but it is certainly not fee to pollute them. In enforcing environmental laws and regulations, the international community has been somewhat lacking. Enforcement jurisdiction is chiefly entrusted to the flag states which do · not necessarily have an interest in enforcing regulations on their vessels. Routeing measures, such as traffic separation schemes and Vessel Traffic Systems adopted by coastal state, which usually have the best information about the topography of their maritime zones, seem to bridge the difference in the interests of maritime states and coastal states. Indeed, while allowing foreign vessels to navigate within their zones, coastal states ensure that by compliance to their routeing measures environmental harm is minimized or avoided. However, such measures are only mandatory in the territorial seas. With respect to nuclear powered vessels and vessels carrying nuclear and hazardous substances, the main question addressed is whether such vessels have the obligation to seek notification or authorisation of the coastal state before entering its territorial waters, in line with the precautionary principle. It is submitted that there is increasing state practice that such notification or authorisation is becoming a customary rule of international law.