2.4 International law gaps in the regulation of shipping on the high seas
A persistent issue is the ineffective monitoring and implementation of IMO commitments by flag States, since implementation and compliance on the high seas is the responsibility of individual flag States. Insufficient implementation of the IMO instruments is mentioned as a serious hindrance to the effectiveness of the IMO’s work.(1) See, e.g., Lost-Sieminska (n 44). In addition, there is reportedly very little information about vessel-source pollution and insufficient follow-up of high seas pollution incidents by flag or port States.(2) Robin M Warner, ‘Marine biodiversity beyond national jurisdiction’ in Rothwell, Elferink, Scott and Stephens (n 33) 763.
Another continuing issue is the liability and compensation for marine environmental and biodiversity damage on the high seas. Notably, existing agreements on civil liability for vessel-source pollution do not apply to damage caused only on the high seas, where not affecting coastal waters (EEZs and territorial sea).(3) See generally, Robert C. Beckman, Millicent McCreath, J Ashley Roach, Zhen Sun, High seas governance: gaps and challenges (Brill Nijhoff, 2018).
Special areas under MARPOL are not envisaged for all sources of pollution, but only for oil, noxious liquid substances, sewage, garbage, and SOx emissions, and these cover only negligible sections of the high seas. An issue to which we return in the next section is the absence of marine protected areas and similar area-based management tools on the high seas which would be established on a global basis; preferably, through the IMO as the global shipping organization. Protection of particularly vulnerable marine ecosystems at the regional level (e.g., OSPAR(4) OSPAR Commission – Marine Protected Areas < Marine Protected Areas | OSPAR Commission>.) does not ensure an effective protection from international shipping, due to freedom of navigation enjoyed by ships under the law of the sea.