4.7 Conclusion
Lawful enforcement presupposes that there is both prescriptive and enforcement jurisdiction. These two aspects of jurisdiction are considered separately in Part XII of UNCLOS. The prescriptive jurisdiction of states to require compliance by foreign ships with the MARPOL's fuel quality requirements in their territorial sea and EEZ is not in doubt. However, states' rights to exercise enforcement jurisdiction over foreign ships that merely transit their waters is heavily circumscribed in all sea areas except their internal waters.
For this and a number of practical reasons, enforcement of the sulphur in fuel requirement will primarily be exercised by states with respect to ships that are voluntarily present in their ports. Since enforcement takes place in port, the port states have wide enforcement powers, limited mainly by various safeguards enumerated in UNCLOS. A more complex question relates to the extent of port states' prescriptive jurisdiction, i.e. how far from the port state may the requirements to comply with the rules extend. Is the port state's enforcement limited to violations that have taken place in the state's own maritime zones or may its measures cover the entire SECA or even beyond?
The Sulphur Directive only requires application of the rules within the individual member states' coastal waters.(1) Article 6(2). This scope is unproblematic for the port state to maintain in view of inter alia UNCLOS article 220(1) and the related prescriptive rules in article 211. However, thanks to close link to the internationally accepted MARPOL Annex VI standards, the obligation to comply with the rules can go beyond that to be extended to cover any part of the SECA.
The most obvious justification for such a broad geographical coverage of the port state requirements is UNCLOS article 218(1) which establishes jurisdiction for port states to prosecute ship-source pollution offences, almost wherever they occur, as long as there is a strong international foundation of the requirement in question. A question mark still relates to the reference to ‘discharges’ in that article, but that the drafters of MARPOL Annex VI seem to have settled that question by introducing regulation 11(6), which serves to ensure a close jurisdictional link air emissions and other forms of ship-source pollution and, hence a broad understanding of the term to include emissions.
More generally, too, a broad prescriptive jurisdiction may be argued on the basis of the general jurisdiction that port states have under general international law to impose requirements on ships that voluntarily visit their ports, even if the requirements in question extend beyond the coastal waters of the port state. This includes powerful enforcement measures such as denial of (future) access of the ship in question, limited only by more general principles of international law aimed at ensuring reasonable and proportionate enforcement. If enforcement takes the form of penalties, the requirements for a solid prescriptive jurisdiction are higher, but even there, jurisdiction may be found in the principles of extra-territorial jurisdiction in international law.
It may also be noted that even if the prescriptive jurisdiction was considered to prevent a geographic extension of the requirement, the hurdle could possibly be circumvented by means of drafting. By altering the way in which the violation is defined it may be quite possible to ‘territorialize’ the violation of the air emission and fuel quality standards. For example, a rule imposing an obligation on all ships entering ports to present a record in the port of the actual emissions levels throughout their presence in the SECA, or for the last 10 days, or otherwise face a fine, would technically be violated in the port even if it would in effect have a very widespread geographical coverage.(2) Techniques for territorializing ship-source pollution offences have been particularly used in the United States, for example relating to sanctions concerning failure by the crew to provide adequate records of fuel consumption, inadequate or falsification of oil record books or bunker delivery notes, failure to co-operate with port State enforcement officials, etc. See also R.A. Udell, ‘United States Criminal Enforcement of Deliberate Vessel Pollution: A Document-Based Approach to MARPOL’, in: D. Vidas (ed.) Law, Technology and Science for Oceans in Globalisation—IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf, Martinus Nijhoff Publishers, The Hague, 2010, pp. 269–290.
Finally, even if the port state's jurisdiction to prescribe the sulphur in fuel requirements for the high seas or other states' coastal waters were in doubt, that would not in itself rule out that a penalty for any violation takes into account (supposed or real) non-compliances in such sea areas. UNCLOS and MARPOL leave considerable discretion for states to establish their own principles for penalties and taking into account violations beyond the own sea areas as a mechanism to ensure the effectiveness and dissuasiveness of the penalty would clearly appear to fall within this discretion.
Any final assessment on the legality of port states’ enforcement measures, in the form of penalties or otherwise, is ultimately likely to boil down to questions relating the reasonableness and legitimacy of the state’s claim to jurisdiction and the balancing of interests between the competing jurisdictions of the port state and the flag state. This matter is reverted to in section 8.