4.3 Flag state jurisdiction
International law does not limit a state’s jurisdiction over ships flying its own flag. The flag state obligations provided in UNCLOS articles 94(5) and 211(2), with respect to, inter alia , the duty to ensure that its ships comply with “generally accepted” rules and standards on maritime safety and environmental protection, are laid down in the format of minimum requirements. Those international standards may accordingly be exceeded by flag states, e.g. by requiring their ships to use SECA-compliant fuel even beyond SECA areas. Flag states’ jurisdiction over their ships is not limited in geographical terms, meaning that laws and standards laid down by the flag state as a rule apply wherever the ship is located, including in foreign states’ ports and coastal waters (alongside applicable standards imposed by the coastal/port state).
It seems largely uncontested that the standards introduced in MARPOL Annex VI by now represent 'generally accepted' international rules for this purpose. (1) See e.g. IMO Doc. LEG/MISC/8, pp. 9-12. The final report of the International Law Association’s Committee on Coastal State Jurisdiction Relating to Marine Pollution (2000) concluded that the purpose of the reference to 'generally accepted' rules is “to make compulsory for all states certain rules which had not taken the form of an international convention in force for the states concerned, but which were nevertheless respected by most states” (Conclusion No. 2). See also Molenaar note 29, pp. 157-158 and L.S. Johnson: Coastal State Regulation of International Shipping, Oceana Publications, Inc., Dobbs Ferry, 2004, pp. 75-77. The significance of this lies in that any flag state, at least the ones that are parties to UNCLOS,(2) As was noted above at note 27 above, UNCLOS enjoys very widespread formal ratification. In addition, its provisions on vessel-source pollution widely considered to represent customary law, and hence represent binding international law even on the non-parties to UNCLOS. needs to implement the MARPOL Annex VI requirements, including the SECA requirements, irrespective of whether it has formally ratified the Annex. The more stringent sulphur in fuel requirement hence apply to all ships present in the SECA, irrespective of their flag state, destination or maritime zone concerned.