4.2 Pollution 'from or through the atmosphere'
An initial question that arises when seeking to analyse the jurisdictional rights and obligations relating to ships' air emissions is that UNCLOS is not drafted with this kind of pollution in mind. The convention's detailed provisions on ship-source pollution address 'pollution from vessels' which is not defined but broad enough to encompass any type of pollution from ships. However, the rules referred to are those aimed at preventing, reducing or controlling 'pollution of the marine environment', which is broadly defined in UNCLOS article 1(4), but still only encompass pollution that ends up in the marine environment. Apart from this, the convention includes two specific articles in Part XII which deal with ‘pollution from or through the atmosphere’.
A first issue is therefore to establish whether air emissions from ships is governed by the provisions on vessel-source marine pollution or by the rules on ‘pollution from or through the atmosphere’ in the convention’s articles 212 and 222. In the latter case, the coastal state would have more liberty to exceed international rules, but jurisdiction would be limited to their territorial sea. (1) See e.g. E.J. Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, Kluwer Law International, The Hague/Boston/London, 1998, pp. 501—504. A study prepared for the European Commission in 2000 has also addressed this relationship in some detail (BMT Murray Fenton Edon Liddiard Vince Limited, ‘Study on the economic, legal, environmental and practical implications of a European Union System to reduce ship emissions of SO2 and NOx’, No. 3623, Final Report, August 2000, Appendix 4, paras. 76-87).
For several reasons, however, articles 212 and 222 are unlikely to be relevant for governing the extent of states' jurisdiction with respect to MARPOL’s air emissions and fuel quality requirements. The wording of the articles only refer to pollution of the marine environment, which is not the primary target of the MARPOL sulphur requirements. Substance-wise, too, the two articles seem incomplete. For example, in contrast to the more specific rules on at-sea enforcement against ships in UNCLOS Part XII, the enforcement regime outlined in article 222 contains no guidance as to how the enforcement jurisdiction is to be exercised, which in itself suggests that it is not apt for deciding the more precise jurisdictional limits of coastal State enforcement. Moreover, the drafting history illustrates that very little reference was made to ship-source air pollution when these articles were being drafted, the focus being mostly on pollution caused by air traffic. (2) See United Nations Convention on the Law of the Sea 1982 A Commentary. Volume IV. Editor-in-chief: Myron H. Nordquist. Martinus Nijhoff Publishers, Dordrecht 1991, pp. 208—213. Finally, the two articles have not been relevant in in practice when air emission rules have been developed. Both the international negotiations on MARPOL Annex VI as well as the European debate on the Directive have largely ignored the two articles when the jurisdictional limits on the regulation of ship emissions have been discussed.
In order to clarify the relationship of MARPOL Annex VI to UNCLOS, a specific provision was introduced to the Annex in 1997. Regulation 11(6) specifically ties the Annex to the jurisdictional regime for ship-source pollution rather than to that for atmospheric pollution:
[t]he international law concerning the prevention, reduction or control of pollution of the marine environment from ships, including that law relating to enforcement and safeguards, in force at the time of application or interpretation of this Annex, applies, mutatis mutandis, to the rules and standards set forth in this Annex.
For these reasons, the remainder of the article will assess the law of the sea aspects of a prospective air emission fee through the ‘regular’ UNCLOS rules on coastal state jurisdiction over ship-source pollution.(3) See e.g. IMO Doc. MP/CONF.3/RD/3, para. 6, Molenaar note 29, p. 512 and the BMT Study, n 29, Appendix 4, paras. 108, 113—115.