The problem of pollution caused by ships is becoming graver by the day. Oil spills from supertanker accidents cause grievous damage to coastal states, while spills of fuel oil from large ships have grown beyond the ability of the oceans to sustain. Since the latter half of the 20th century, this problem has been one of the most pernicious confronting the rule of law at sea. Another disturbing recent trend is the increasing problem of shipment of materials that are hazardous or harmful by nature, such as nuclear or chemical materials. The transport by sea of these industrial raw materials, resources and energy supplies forms a crucial underpinning of the world's economy, indicating that the interests of international shipping will have to be protected more than ever in the years ahead. Accordingly, we must avoid creating an environment in which coastal states recklessly interfere in the passage of foreign cargo vessels. At the same time, it is absolutely essential that the marine environment be protected to the fullest extent and that the safety of shipping, especially for the sake of coastal states, be preserved. Hitherto the international community has, through the IMO, established a number of important international standards, including criteria for the structure and design of vessels as well as criteria for the emission of oil. In addition, the IMO is considering the development of an oil register and has developed a number of valuable initiatives, such as the overhaul of land-based refining facilities, a ship voyage reporting system and port state control governing the seaworthiness of vessels. The organization is working hard to put international standards into effect and to standardize a variety of preventive measures. Progress is also being made in the adjustment of standards through a series of treaties. These include the CLC treaty on liability for civil damages from oil pollution, the Fund treaty, the HNS treaty on hazardous and harmful substances and treaties empowering states to seize vessels connected with such environmental damage.

　

With the passage of UNCLOS, the law of the sea has entered a brave new era. Previously, the order of the seas was two-dimensional, as the oceans consisted of the completely free international or high seas and exclusive marine territories. This framework was ill suited to the urgent task of preserving fish stocks and protecting the earth's environment, so a new element was added the 200-mile EEZ. This functional system of marine territorial jurisdictions, generated by the various coastal states, strengthens the regulatory authority of the coastal states EEZs provide for coastal states' sovereign authority over fishing, for example, as well as the protection of the marine environment. Under the former system of exclusive control by the flag state on high seas, order on the high seas was enforced exclusively according to the domestic law of the flag state to which each vessel belonged. The problem with this system was the difficulty of controlling effectively violations of a country's laws in seas far removed from the homeland. The new system was recognized when it became clear that this state of affairs was untenable. In other words, it was judged that the most effective way of protecting fish stocks and the marine environment was to entrust authority to the coastal states, whose relation with the advantages and disadvantages of shipping in nearby waters was more direct. One implication of this new arrangement, however, is that the widespread acceptance of regulatory authority of coastal states over the protection of the marine environment is likely to come into direct confrontation with the interests of international shipping. The provisions for mediation of such disputes are by no means complete in UNCLOS, leaving considerable room for adjustment. Many areas remain in which the specific details of such mechanisms need to be progressively demarcated through the exercise of the regulatory authority of the coastal states.

　

　

This report deals with some of the problems raised by this conflict. It explores the scope of coastal states' regulatory authority over the protection of the marine environment in territorial waters and EEZs.

　

Turning first to territorial waters, foreign vessels are granted the right of innocent passage through territorial waters. As long as such passage is not injurious to the peace, safety and order of the coastal state, coastal states must permit the passage of foreign ships. This system is traditionally recognized for the sake of linking the world together through international shipping. According to Article 19, Section 2 of UNCLOS, in the event that certain new actions are taken to enumerate foreign vessels traveling through territorial waters, such actions shall as a matter of course be deemed injurious to the free passage of the vessel. Included in this section is the specification of "deliberate and major acts of pollution in violation of this treaty." Although interpretation of the terms "deliberate" and "major vary according to the laws of coastal states, the definition of what constitutes harmful passage of foreign vessels has arguably become more objective. The enumeration described above is not a limited measure but an unrealistic attempt at regulation. In individual cases, if a coastal state can prove that the passage of a given ship is harmful to that state, that state can press such a claim and demand that the vessel remove itself from its territorial waters and can seize the vessel and enforce penalties under its domestic law.

　

A separate provision recognizes the enactment of specific items of law by coastal states with regard to innocent passage. Vessels passing through the territorial waters of coastal states are obliged to obey these laws, some of which deal with the protection of the marine environment and prevention of pollution. However, declaring such passage to be "harmful" is not as simple as finding that a violation of these laws has been committed. Unless the violation is generally recognized to constitute harmful passage, or the coastal state is able to prove that the passage is harmful, a finding of violation does not immediately implicate the vessel in harmful passage. In the past, if the passage was not deemed to be harmful, the coastal state could not intervene in its passage. Its only recourse was to report the ship's violation to the flag state so that the flag state could apply the necessary sanctions under its own laws. As described in greater detail below, on this point UNCLOS introduced a new enforcement mechanism for flag states. Finely balanced with the interests of shipping, this provision broadened the scope of application of coastal states' domestic laws for the protection of the marine environment.

　

In terms of the criteria by which passage is deemed harmful, only regulations focusing on the actions and status of the foreign vessel are recognized. Regulations focusing on the type of vessel, such as battleship or nuclear-powered vessel, or type of cargo, such as chemicals, petroleum or plutonium, are not permitted. This is the point that caused trouble in Japan with regard to plutonium cargo vessels. To the extent that Japan has undertaken preventive measures stipulated in international agreements, it is not in a position to refuse passage through its territorial waters, let alone its EEZ. On the contrary, even the refusal of passage to vessels bearing nuclear weapons, based on Japan's three anti-nuclear principles, faces formidable obstacles under the law of the sea.

　

Clearly this state of affairs is insufficient to put the coastal states' minds at ease. To ensure the safe passage of vessels, UNCLOS introduced a separate-lane system, providing for coastal states' right to designate shipping routes. Under certain conditions, based on the counsel of international organizations, coastal states can demand that tankers, nuclear-powered vessels and ships carrying nuclear or other hazardous cargoes transit only through designated shipping lanes. It is not generally accepted that such vessels failure to adhere to the designated shipping lanes implies a loss to the right of innocent passage. The right to establish separate shipping lanes in international straits is recognized (Article 41), but in international straits coastal states' discretion in applying those rights is limited by a requirement of interpretation by international bodies. Even so, use of shipping lanes other than the designated ones does not constitute sufficient grounds to refuse passage.

　

Although these stipulations appear absurd, the law of the sea is rooted in the belief that the basis of safety of ships at sea rests with the character and good seamanship of their crews. This is why coastal states' powers to interfere in the interests of international shipping are so closely circumscribed. In narrow waters such as international straits, although it may seem unduly harsh to the coastal states, it is also true that the establishment of vessel reporting systems and passage support facilities has greatly strengthened the coastal states' responsibility in providing for the safe passage of vessels. Also, in cases where coastal states do not possess the financial or technical resources to furnish such services, the flag states of vessels that frequently pass through said straits are obliged to cooperate with the coastal state to ensure the safe passage of their own vessels. Most recently, it has been proposed that mandatory ship routing must be recognized, not only in international straits but in territorial waters and even larger areas of sea as well. Such measures are surely necessary in some areas, depending on the degree of congestion of ships in the sea area and its geographical characteristics. To ensure that such measures do not excessively harm the interests of international shipping, a system must be established for an international body with due authority to rule on each case, rather than leaving the matter to coastal states to impose unilaterally. Nonetheless, it is doubtful whether coastal states have the right to refuse passage to ships that do not abide by mandatory ship routing.

　

Another unique recent example is the Sellafield MOX reprocessing-plant case before the International Tribunal on the Law of the Sea. In this incident, the United Kingdom unilaterally decided to build a nuclear-fuel reprocessing plant at Sellafield in its own territorial waters. The Republic of Ireland demanded that the Tribunal enforce a temporary ban on construction and the shipment of nuclear fuel to and from the site. Ireland's claim was that such hazardous materials must not be shipped through those waters, including British territorial waters and certain waters beyond. According to Article 290 of UNCLOS, where urgently needed to protect rights or to prevent major harm to the marine environment, the International Tribunal on the Law of the Sea is empowered to order a temporary ban. In the Sellafleld case, however, the transit of ships carrying nuclear fuel was not accepted as valid grounds for urgency requiring a halt on shipping. In the event, the Tribunal simply exhorted the two countries to cooperate and discuss the issue to attempt to resolve the dispute. Two characteristics of Ireland's demand for temporary measures deserve close attention. The first is that, rather than demand a ban on passage through Irish territorial waters, the Irish side insisted that the United Kingdom cease shipping of nuclear materials through British waters and surrounding waters. Ireland's reason was that the Irish Sea is a partially enclosed sea and therefore required the protection of the sea's environment as a single body of water. A demand of this kind is without precedent in international cases The second interesting aspect is that the demand for a ban on shipping was directed specifically at Britain's shipments to the Sellafield plant Logically, Ireland's demand was an unlimited insistence on the general prohibition of passage of ships laden with cargo that could visit grievous harm on the environment of the Irish Sea. The implication was that the United Kingdom could be forced to ban the passage through British waters even of ships not bound from or to the Sellafield plant, provided they were carrying hazardous cargo. Ireland's demands would have required the establishment of an independent, international cooperative framework to create a special type of shipping regime for the protection of the marine environment in certain (partially enclosed) seas (although the case did not touch on the issue of hazardous cargoes incoming from other countries). The dispute between Ireland and the United Kingdom regarding the Sellafield plant is currently pending legal arbitration as a dispute concerning disclosure requirements under the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention).