GENERAL COMPREHENSIONS AND FLAG STATES
Marine environment and marine environmental protection
1.1.1 Definition of the marine environment
There is currently no standardized definition of “marine environment” in international law Therefore, the research team will make use of the legal definition of
“marine environment” included in various national laws while discussing this topic
In order to provide the most precise and comprehensive definition of “marine environment”, we will also include the opinions of some Western and Vietnamese scholars
Firstly, the research team will discuss the term of “marine environment” as it appears in several nations’ legal systems
The term “marine environment” means any or all of the following: the coastal zone, as defined in section 304(1) of the Coastal Zone Management Act of 1972 (16 U.S.C 1453(1)); the seabed, subsoil and waters of the territorial sea of the United States, including the Great Lakes; the waters of any zone over which the United States asserts exclusive fishery management authority; the waters of the high seas; and the seabed and subsoil of and beyond the Outer Continental Shelf 1
In the International Seabed Mineral Management Decree 2013 of the Goverment of Fiji 2 , the term “marine environment” means the environment of the sea, and includes the physical, chemical, geological, biological and genetic components, conditions and factors which interact and determine the productivity, state, condition and quality of the marine ecosystem, the waters of the seas and oceans and the airspace above those waters, including the seabed and ocean floor and subsoil thereof 3
Vietnamese law as it stands does not define legal words pertaining to “marine environment” Vietnam’s Law on Natural Resources and Environment of the Sea and
Islands 2015 also does not have a definition of the “marine environment” Starting from the concept of “environment” with its overall characteristics, Vietnam’s Law on
1 Cornell Law School – Legal Information Institute, “Definition: Marine Environment https://www.law.cornell.edu/definitions/index.php?width0&height0&iframe=true&def_id 5b09c1fb33006165bd4aba6cccf4f&term_occur9&term_src=Title:15:Subtitle:B:Chapter:IX:Subch apter:A:Part:918:918.2 (accessed on 28/02/2023)
2 The Republic of Fiji is an island country in Melanesia, part of Oceania in the South Pacific Ocean
3 See more at https://isa.org.jm/files/documents/EN/NatLeg/Fiji2013.pdf
Environmental Protection 2014 defines: “The environment is a system of natural and man-made material factors that have an impact on the existence and development of humans and organisms” In our perspective, this definition of the environment is quite completed, which affirms that not only people but also living things are at the center of protection activities Different from the definition in the Law on Environmental Protection in 2005, this definition recognizes and evaluates environmental factors and interactions in a “system” From the perspective of territorial space, the environment can be classified into marine environment, land environment, air environment, water environment Thus, the marine environment is an integral part of the general environment
Secondly, the research team will present some Western and Vietnamese scholars' perspectives on the term “marine environment” From these standpoints, we will conclude a definition of “marine environment” that is quite adequate and appropriate so that we will be able to use this definition throughout the scientific research thesis
From our perspective, the maritime environment serves as a site for waste disposal, communication, and the exploitation of biotic and non-living resources It also plays a crucial part in preserving Earth’s livability As a result, it is clear that the marine environment also comprises estuaries, mangrove areas, tidal zones, swamps, intertidal flats, wet soils, and other living and non-living resources in addition to sea areas with their physical and chemical properties Therefore, in addition to the need to preserve the main component of the marine environment, which is the sea, attention to the areas mentioned above cannot be ignored because of any degradation in the estuaries, lagoons, coastal areas, uncontrolled development, can adversely affect the entire marine environmental system Besides, the marine environment is also a system of physical, chemical, biological processes that interact and operate to maintain the balance of marine flora and fauna ecosystems and ensure different uses of the sea by humans
The above definitions are collected from the reference book named “Bao ve moi truong bien – Van de va Giai phap”, which was summarized by Dr Nguyen Hong
Thao from analyzing the marine environment based on two aspects First, in terms of geographical extent, the marine environment is the entire ocean water area of the Earth with all that is in it The marine environment of a country can be understood as an area of sea or ocean extending from the coast and islands up to the agreed maritime boundary or to the limit of 200 nautical miles of the exclusive economic zone or to the outermost limit of its continental shelf Second, in terms of environmental scope, the definition of marine environment is much broader Pursuant to Article 1.4 of the
United Nations Convention on the Law of the Sea 1982 (UNCLOS 1982), the marine environment is understood to include biological resources, marine ecosystems and sea water quality and marine landscape
However, the definition of marine environment can be extended because there is now a lot of consensuses with the view that sea and ocean should not be considered as an independent entity because they also interact with the atmosphere above the sea surface, with the seafloor, and with the continent from which materials enter the sea Therefore, the expansion of the definition of marine environment is extremely urgent to meet the requirements of accurately assessing sources of marine environmental pollution, factors that degrade and destroy the marine environment in the Earth environment
In addition, human activities are also part of the marine environment, and they directly affect the quality of coastal areas, causing environmental degradation within the coastal zone In Chapter 17 of Action Program 21, the marine environment definition has also been updated in a timely manner so that it is more and more complete and consistent with human perception: “The marine environment is the region comprising the oceans and seas and coastal areas forming a whole, a fundamental component of the global life-sustaining system, and a useful asset that provides opportunities for sustainable development” We see that although this definition is brief, it focuses on emphasizing the link between environment and people and development The marine environment here is understood as the natural environment of the sea under the influence of human activities in the development process Therefor the promotion and facilitation of education and training programs in integrated coastal and marine management and sustainable development for leaders, indigenous peoples, fisherfolk, women, and youth, among others, should be a priority for coastal states With adequate consideration for traditional ecological knowledge and socio-cultural values, management and development challenges should be included in school curriculum and public awareness initiatives Besides, international institutions, whether subregional, regional, or global, should assist coastal States when they request assistance in the aforementioned areas, paying particular attention to developing nations
After researching and referring to the points introduced above, the research team would want to provide a succinct and comprehensive summary of the maritime environment's definition The marine environment is an essential component of the general environment, it includes conditions and factors which interact and determine the productivity; the continent from which materials enter the sea; condition and quality of the marine ecosystem; the waters of the seas and oceans and the airspace above those waters, including the seabed and ocean floor and subsoil them Additionally, human existence and their development also have an impact on the marine environment
1.1.2 The roles of marine environment
The ocean and its estuaries, the seabed and its subsoils, all marine wildlife, sea and coastal habitats are all components of the marine ecosystem The marine environment, which comprises 90% of the biosphere and accounts for 70% of the Earth's surface, is the major and the greatest source of biodiversity 4
The environment of Earth is fundamentally different from that of other planets in the solar system since 71% of its surface is covered by oceans and seas Scientists agree that the Earth's oceans and seas are where life first began; without them, modern life as we know it may not have existed Because seas and oceans play a significant role in supporting life on Earth It acts as a massive "heater" and "air conditioner" that balances the prevailing temperature magnetic poles on Earth and softens the fierce effects of the weather such as storm, flood, flood, drought, etc It provides an endless source of water vapor for the atmosphere, which creates clouds and rain to support all living species, including human beings Without seas and oceans, the continents will become arid deserts, the habitat of humans on Earth will be harsher
The marine ecosystem performs a variety of essential environmental roles, including regulating the climate, preventing erosion, storing, and dispersing solar energy, absorbing carbon dioxide, and maintaining biological control Seas and oceans have once again demonstrated their crucial worldwide role in the backdrop that humanity is experiencing and attempting to cope with the unforeseen repercussions of climate change The capability of oceans and seas to absorb and store excess CO2 in the greenhouse gas group from the Earth’s atmosphere is currently 30%, and if they are kept healthier, this capacity will rise 5
In addition to being the origin of life on Earth, the marine environment serves a number of other crucial roles for humans: With more than 160,000 animal species and 10,000 plant species, the marine and ocean ecosystem offers an unending source of resources Additionally, there are a lot of minerals, particularly oil and gas Many nations are using tides more and more to create clean, renewable electricity The marine
4 “Ocean”, NOAA – National Oceanic and Atmospheric
[https://web.archive.org/web/20130424102601/http://www.noaa.gov/ocean.html] (accessed on 31/01/2023)
5 Wayne Lewis (2021), “Could the ocean hold the key to reducing carbon dioxide in the atmosphere?”, University of California, Los Angeles [https://phys.org/news/2021-01-ocean-key-carbon-dioxide- atmosphere.html] (accessed on 20/01/2023) environment and the ocean become a highly significant transit route when they are regarded as a “bridge connecting the continents” Additionally, the sea and ocean are also attractive resorts and tourist destinations It is also a significant driver of economic growth, social progress, and quality of life
Marine pollution and vessel source pollution
We will not provide any new viewpoints on this subject because “marine pollution” has already been defined in several scientific research and international treaties
Firstly, in terms of the fundamentals, “Marine pollution is a combination of chemicals and trash, most of which comes from land sources and is washed or blown into the ocean This pollution results in damage to the environment, to the health of all organisms, and to economic structures worldwide.” 20
Secondly, from an academic point of view, more specifically we will focus on studying marine pollution in terms of law According to Article 1.1.4 of the UNCLOS
1982 defines “marine pollution” as: “the introduction by man, directly, of substances into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of seawater and reduction of amenities.”
[https://education.nationalgeographic.org/resource/marine-pollution] (accessed on 03/02/2023
The clause specifies three succinct comments First off, this term is open-ended and might cover both old and new causes of marine pollution Second, the concept includes substances or energies that could have harmful effects Therefore, possibly detrimental effects on the marine ecosystem could also be regulated Third, this definition makes it apparent that “the maritime environment” includes marine living organisms, as evidenced by the reference to “living resources and marine life” As a result, safeguarding marine species also requires safeguarding the maritime ecosystem
1.2.2 Vessel source pollution – a category of marine pollution
In addition to the UNCLOS 1982’s definition of marine pollution, which was mentioned in 1.2.1, the UNCLOS lists six additional sources of marine pollution:
(i) pollution from land-based sources, (ii) pollution from seabed activities subject to national jurisdiction, (iii) pollution from activities in the Area, (iv) pollution by dumping, (v) pollution from vessels, and (vi) pollution from or through the atmosphere
These sources of marine pollution can be roughly categorized into four main groups: (i) land-based marine pollution, (ii) vessel-source marine pollution, (iii) dumping at sea, and (iv) pollution from seabed activities Since the scope of this research is within vessel-source pollution, we only focus on the vessel – source marine pollution as following
Vessel-source pollution, also called as pollution from vessels/ships, is any type of pollution originating from vessels engaged in navigation or transportation by either operational or accidental There are two types of vessel-source pollution: operational and unintentional The regular operation of ships results in pollution from operational vessels Ships with oil-burning diesel engines release some oil with their bilge water, and the fumes that are released into the atmosphere through their funnels eventually find their way back to the water Oil tankers would frequently wash their tanks with seawater jets in the early days of tanker operation and discard the resulting greasy residue at sea As a result, a sizable volume of oil was released into the ocean, contributing to oil pollution Currently, the “load on top” and “crude oil washing” approaches have virtually eradicated this issue 21
By definition, “vessel-source pollution” includes pollution from a variety of sources in addition to oil spills from maritime mishaps like the Amoco Cadiz Pollutants released from vessels engaged in navigation or transportation are referred to as “vessel-source pollution” as opposed to pollutants released from ships engaged in ocean dumping Approximately 80% of the global oil pollution from vessels is caused by these international operating discharges, which include tank cleaning and
21 P Birnie, A Boyle and C Redgwell (2009), International Law and the Environment, 3rd edn, Oxford University Press, p 399 reballasting Even pollution produced by vessels engaged in deep-sea mining can and ought to be classified as vessel-source pollution and subject to regulation Additional examples of potential pollutants that could be subject to regulations governing vessel- source pollution include toxic compounds, liquefied natural gas (LNG), and other dangerous materials 22
For the prevention of pollution from vessels, tougher standards and stronger regulations are however required We shall see that the main legal framework for the control of vessel-source pollution is provided by the UNCLOS and MARPOL Injuries to vessels can potentially contribute to marine pollution Torrey Canyon (1967), Amoco Cadiz (1978), Exxon Valdez (1989), Erika (1999), and Prestige (2002) are just a few of the oil tanker-related disasters that serve as examples of the scope and severity of the harm done to marine ecosystems and coastal communities 23
Additionally, the introduction of alien species through the release of ballast water is receiving more and more attention Additionally, there are growing worries that excessive amounts of man-made noise could affect marine mammals and other living things in the ocean 24
Flag States
Article 90 of UNCLOS 1982 stated that “Every State, whether coastal or land- locked, has the right to sail ships flying its flag on the high seas” That is, when operating on the high seas, ships of countries with sea or without sea have the right to fly the flag of the country of nationality And that is also the foundation for us to understand “Flag State” with the following definition: The nation under whose laws the vessel is registered or licensed is considered to be its nationality and is known as the Flag State A vessel must be registered, and it can only be registered in one country or territory However, it is allowed to switch the registry where it is registered The Flag State has the power and duty to impose rules on ships flying its flag, including rules governing certification, certification inspection, and the issuance of safety and pollution prevention certificates A ship is governed by the laws of its Flag State since it is operating under those laws when it is involved in an admiralty action
22 John W Kindt (2021), “Vessel-Source Pollution and the Law of the Sea”, Vol 17, Vanderbilt Journal of Transnational Law [https://scholarship.law.vanderbilt.edu/vjtl/vol17/iss2/2/] (accessed on 08/01/2023)
23 Data concerning major oil spill incidents at sea is available at: www.cedre.fr/en/cedre/index.php
24 Generally on this issue, see K N Scott (2004), “International Regulation of Undersea Noise”
53 ICLQ, p 287–324; J M Van Dyke, E A Gardner and J R Morgan (2004), “Whales, Submarines, and Active Sonar”, 18 Ocean Yearbook, p 330–363
In addition, the phrase “Flag State” is also defined by Cornell Law School as follows: “Flag State means the authority under which a country exercises regulatory control over the commercial vessel which is registered under its flag This involves the inspection, certification, and issuance of safety and pollution prevention documents.” 25
Besides, based on the Lotus-case (1927), the Permanent Court of International Justice defined the basic principle that the Flag State alone may exercise jurisdictional powers over its ships “vessels on the high seas are subject to no authority except that of the state whose flag they fly”
Furthermore, Article 92.1 of UNCLOS 1982 also states that “Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry” According to this, ships must only fly the flag of one nation, and they are generally subject to that nation's sole legal authority on the high seas Each state has its own requirements for granting ships its nationality, registering ships, and having the ability to fly its flag In the M/V Saiga (No 2) case, the International Tribunal for the Law of the Sea decided that the setting of the standards and processes for awarding and revoking nationality to ships are exclusively within the purview of the flag state 26
We can see that a ship’s nationality is directly related to the flag it flies, but there must be a real connection between the state and the ship The necessity of a true link was created to combat the use of flags of convenience 27 , which are frequently used by nations like Liberia and Panama to confer their nationality to ships seeking advantageous tax, labor, and social policies However, if a ship flies the flags of multiple countries for practical reasons, the ship lacks legal nationality and can therefore be boarded and taken on the high seas by any state And when this is compared to ships that do fly a flag, which can typically only be boarded and detained on the high seas by its own flag state Based on the ship’s flag, the ship must obey international and maritime law of the registered country when at sea, and it can be utilized in a range of ocean conflicts Such as in case that when a coastal state simply
25 Article 405, Subpart D, Part 156, Subchapter O, Chapter I, Title 33 Electronic Code of Federal Regulations (e-CFR), Legal Information Institute of Cornell Law School
26 UKEssays (2021), “Flag State Jurisdiction on The High Seas”
[https://www.ukessays.com/essays/law/flag-state-jurisdiction-on-the-high-seas-international-law- essay.php?vref=1] (accessed on 03/02/2023)
27 Flag of convenience (FOC) is a business practice whereby a ship’s owners register a merchant ship in a ship register of a country other than that of the ship's owners, and the ship flies the civil ensign of that country, called the flag state (Bernaert, 2006, p104) enacts rules to safeguard the marine environment in the waters over which it has control, it will find it difficult to administer when it reaches further seas As a result, the flag state will now bear responsibility for protecting the country whose flag is flying on that ship And that reason also explain how important the ship registry is By associating a ship with a State, the ship registration system implies that that State has the right to defend that ship under international law
It is really important to note that the flag state has additional obligations 28 , including the need to enact laws that make it illegal to damage or break underwater cables and pipelines beneath the high seas Additionally, in order to comply with international obligations involving maritime safety, the flag state must pass and implement legislation addressing assistance to ships in distress, as well as give compensation in the event that such an offense happens
The exclusivity of the Flag State - principle is always applicable to warships and ships owned or operated by a state that are only employed for governmental, non- commercial service According to Articles 95 and 96 of the UNCLOS, these ships are totally exempt from the authority of all states other than their flag state However, the notion of Flag State dominance on the high seas is not unqualified With certain exceptions, third states may jointly exercise legislative or enforcement authority (or both) with the Flag State
1.3.2 Flag States prescriptive and enforcement jurisdiction
Jurisdiction is critical for keeping order and ensuring that legal issues are treated effectively within a specified framework It also aids in the prevention of disputes caused by various authorities claiming authority over the same subject matter or geographical region However, there is currently no legal document that defines what jurisdiction is Above that, it is also clear that jurisdiction is a right that is inextricably linked to the national territory As a result, jurisdiction is the legal authority and power of a governing body, such as a court or government, to hear and decide legal cases or make and enforce laws It establishes the limits and boundaries within which a particular entity has the right to exercise its authority More specifically, jurisdiction refers to the amount of legal authority that a court or judicial system has It specifies the geographical breadth, the scope of the matter, and the court's or legal system's jurisdiction It ensures that a team can only address instances or disagreements that fall under its purview
Besides, the ability of a state to create and enforce laws is referred to as jurisdiction While typically associated with sovereignty and intimately linked to its
28 Described in detail in Article 94 of UNCLOS 1982 area, jurisdiction can exist independently of territory Jurisdiction can be established in a variety of scenarios, depending on the location of events, the nationality of participants, or the surrounding circumstances, and will also show whether a State can take enforcement action to protect its law 29
Prescriptive jurisdiction and enforcement jurisdiction are the two primary categories of jurisdiction
First, the capacity to regulate an activity and to prescribe specific behavior is referred to as prescriptive jurisdiction To put it another way, prescriptive jurisdiction is the power to enact laws that can legitimately profess to regulate persons and situations regardless of their location 30 A sovereign body has the authority to impose rules and regulations on persons and entities within its control Prescriptive jurisdiction has the authority to define and prohibit specific acts, set rules for legal proceedings, and impose penalties for violations of the law This jurisdiction applies to both persons and organizations working inside the governing body's territorial borders Civil law, criminal law, taxation, environmental laws, and commercial practices are all examples of prescriptive jurisdiction The breadth and reach of prescriptive jurisdiction may differ between nations, with some having broader powers than others It is vital to highlight that prescriptive jurisdiction is subject to international law and sovereignty norms Jurisdictional conflicts can develop when many jurisdictions claim authority over a certain topic, necessitating the use of legal institutions such as extradition treaties or international courts to resolve disputes and keep the global legal structure in order
Second , the ability of a state to legitimately enforce its law through the exercise of executive and judicial power is referred to as enforcement jurisdiction That is, it is a State’s legal authority to arrest, try, convict, and imprison an individual for violating its laws 31 It entails the ability to take action, execute measures, and guarantee compliance with the governing body's stipulated rules and punishments Typically, enforcement jurisdiction encompasses a variety of methods and entities tasked with maintaining the law This may include, among other things, law enforcement agencies, courts, regulatory organizations, and administrative authorities These organizations are in charge of investigating suspected infractions, gathering evidence, following legal processes, and implementing appropriate punishments or remedies on individuals found to be in violation of the law The nature of the offense and the legal system
29 Donald R Rothwell, Stuart Kaye, Afshin Akhtarkhavari and Ruth Davis (2010), International Law Cases and Materials with Australian Perspectives, Cambridge University Press, p 294 - 377
31 Ibid [29] determine the area of enforcement jurisdiction Some jurisdictions have extensive enforcement powers that allow them to intervene in all sectors of public and private life, whilst others may have more restricted enforcement capabilities that focus solely on certain domains such as criminal crimes or regulatory infractions Enforcement jurisdiction is critical to sustaining social order, defending individual rights, and assuring rule of law compliance It serves as a deterrent to illegal action and offers a structure for resolving disputes and administering justice
Flag States as the States whose flag vessels fly under have both prescriptive jurisdiction over formulating national laws for the prevention of vessel source pollution and enforcement jurisdiction over validly implementing the laws on prevention of vessel source pollution
1.3.3 Flag States role in protection of the marine environment from vessel source pollution
Ships flying the flag of any country play a very important role in protecting the maritime environment by establishing legislation and ensuring that the law is enforced Ships flying the flag of any country must abide by that country’s laws The flag state has the greatest level of jurisdiction, particularly when ships enter international seas (which are not under the control of any nation)
Therefore, The UNCLOS 1982 also creates some Flag State obligations in this area and also concerns the preservation and protection of the marine environment
Flag States obligations to protect the marine environment from vessel source
2.1 Reasons for choosing the Commonwealth Australian laws
Many States have domesticated MARPOL 73/78 and UNCLOS 1982 into their national laws We have done a general research on several national laws that relate to marine environmental matter and we ended up by selecting Australian Laws The Australian Laws that we analyze in this part is the Commonwealth Australian Laws The scope of this part does not contain Australian States and Northern Territory Laws Hereinafter, to be short, we use the term “Australian laws” which refers to the Commonwealth Australian Laws
Following are the reasons why we chose Australian laws on marine environmental protection from vessel-source pollution
First, Australia is a member State of MARPOL 73/78 and its Commonwealth legislation has given effect to MARPOL’s regulations The domestic Australian laws that implement MARPOL Convention include The Protection of the Sea (Prevention of Pollution From Ships) Act 1983 and The Navigation Act 2012 These laws apply to Australian vessels and strictly govern the protection of marine environment
Second, Australia has been playing a key role at IMO as a founding member and elected representative on the 40-member IMO governing Council for more than 50 years 138 Australia’s approach to the IMO not only is shaped by the need to influence international standards and obligations to benefit their national interest, but Australia also continues to implement international obligations by ensuring the obligations are reflected in their domestic legislation or administrative processes 139
Third, the Commonwealth legislation is by and large fairly effective and competent and it is backed by a Commonwealth administration that applies it reasonably well 140
From those reasons above, we believe that Australian laws on marine environmental protection are well-developed and ideal to be discussed in this chapter
2.2 The Commonwealth Australian legal framework for the protection of the marine environment from vessel source pollution
Australia is a federal country and follows common law legal system At the
138 Australian Maritime Safety Authority, “Our International Engagement”, https://www.amsa.gov.au/about/who-we-work/our-international-engagement (access on 02/02/2023)
140 Michael White (2007), Australasian Marine Pollution Laws 2nd Edition, Federation Press, pg 135.
FLAG STATES OBLIGATIONS TO PROTECT THE MARINE
Reasons for choosing the Commonwealth Australian laws
Many States have domesticated MARPOL 73/78 and UNCLOS 1982 into their national laws We have done a general research on several national laws that relate to marine environmental matter and we ended up by selecting Australian Laws The Australian Laws that we analyze in this part is the Commonwealth Australian Laws The scope of this part does not contain Australian States and Northern Territory Laws Hereinafter, to be short, we use the term “Australian laws” which refers to the Commonwealth Australian Laws
Following are the reasons why we chose Australian laws on marine environmental protection from vessel-source pollution
First, Australia is a member State of MARPOL 73/78 and its Commonwealth legislation has given effect to MARPOL’s regulations The domestic Australian laws that implement MARPOL Convention include The Protection of the Sea (Prevention of Pollution From Ships) Act 1983 and The Navigation Act 2012 These laws apply to Australian vessels and strictly govern the protection of marine environment
Second, Australia has been playing a key role at IMO as a founding member and elected representative on the 40-member IMO governing Council for more than 50 years 138 Australia’s approach to the IMO not only is shaped by the need to influence international standards and obligations to benefit their national interest, but Australia also continues to implement international obligations by ensuring the obligations are reflected in their domestic legislation or administrative processes 139
Third, the Commonwealth legislation is by and large fairly effective and competent and it is backed by a Commonwealth administration that applies it reasonably well 140
From those reasons above, we believe that Australian laws on marine environmental protection are well-developed and ideal to be discussed in this chapter.
The Commonwealth Australian legal framework for the protection of the
Australia is a federal country and follows common law legal system At the
138 Australian Maritime Safety Authority, “Our International Engagement”, https://www.amsa.gov.au/about/who-we-work/our-international-engagement (access on 02/02/2023)
140 Michael White (2007), Australasian Marine Pollution Laws 2nd Edition, Federation Press, pg 135 federal level, Australia has the Commonwealth laws; while at states and territories level, each state and territory has its own laws In this part, we only concentrate on the Commonwealth laws that bind across the nation The scope of this part does not contain state and territory laws
In Australia, as a common law country, international convention only has the force of law when it is given effect through one or more Acts of the Parliament The two main Commonwealth legislations implementing MARPOL Convention is the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 and the Navigation Act 2012
The main Australian law that gives effect to MARPOL 73/78 is the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 The Pollution from Ships Act
1983 has wide application as it binds the Crown in right of the Commonwealth, each of the States and Norfolk Island, has application within and outside Australia and extends to the outer limits of the EEZ It applies to Australian flagged ships wherever they may be and to foreign flagged ships in Australian ports or the territorial sea The Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (hereinafter “POTS Act”) implements the obligation to regulate discharge of pollutants from vessels; the obligation to detect unlawful discharges from vessels; the obligation to ensure vessels carry shipboard emergency plans and complete cargo record books; and the obligation to ensure that harmful substances are appropriately packaged, labelled and stowed onboard vessels
Besides the POTS Act 1983 (the main law giving effect to MARPOL), another Australian law that also implements MARPOL 73/78 obligations is the Navigation Act
2012 The Navigation Act 2012 is different from the POTS Act 1983 as the Navigation Act 2012 mainly focuses on particular construction requirements for ships, espcially tankers, and such ships are obliged to carry special equipment These requirements are considered to be best all contained in a separable Act (the Navigation Act 2012) rather than being included in the POTS Act 1983 141 The Navigation Act regulates the obligation to conduct statutory surveys to ensure that vessels comply with laws on pollution prevention and the obligation to issue and endorse pollution certificates
Notably, the obligation to conduct statutory surveys is not regulated in the POTS Act 1983 although the Act is the main one giving effect to MARPOL This obligation is not regulated in the Navigation Act 2012 as well The obligation to conduct statutory surveys is, instead, regulated in the Marine Order 503 of the Australian Marine Safety Authority (or AMSA) AMSA was established by the Australian Maritime Safety Act
1990 and acts as an administrative machinery for combating marine pollution AMSA
141 Michael White (2007), Australasian Marine Pollution Laws, 2nd edition, The Federation Press, page
121 maintains Commonwealth navigational structures and its duties include administering MARPOL, so it can be seen as the major administrator for matters directly concerning most aspects of the marine environment in relation to shipping
In a word, the main Australian law that gives effect to MARPOL 73/78 is the POTS Act 1983 It can be said that the POTS Act 1983 domesticates almost all of Flag States obligations to protect marine environment regulated in MARPOL 73/78 However, a few obligations in MARPOL 73/78 can also be found in the Navigation Act
2012 and the Marine Order 503 of AMSA.
The implementation of Flag States obligations to protect the marine
In this part, we will discuss the obligations to protect marine environment from vessel-source pollution in accordance with Australian Commonwealth laws based on the prescriptive jurisdiction and enforcement jurisdiction
2.3.1 Flag State prescriptive jurisdiction over protection of the marine environment from vessel source pollution under the Commonwealth Australian laws
The Protection of the Sea (Prevention Pollution from Ships) Act 1983 was enacted to give force to MARPOL 73/78 This piêc of national legislation contains extensive provisions in relation to the six categories of substances regulated by MARPOL 73/78 This Act provides detailed technical standards on issues regulated by MARPOL 73/78 Furthermore, this Act also provides regulations on placards relating to requirements for the disposal of garbage, the power to require discharge of pollutants at reception facilities and regulations for preventing air pollution This Act also sets out penalties applicable upon conviction, for violations of the Act 142
2.3.2 Flag State enforcement jurisdiction over protection of the marine environment from vessel source pollution under the Commonwealth Australian laws
(i) The obligation to regulate discharge of pollutants from vessels
- The Obligation to Regulate Discharge of Oil and Oily waste from Vessels
Discharges from a vessel of oil or oily mixture into sea is strictly regulated under section 9 of POTS Act 1983 Subsection 9(1B) generally proscribes the discharge of oily water mixtures from a ship into the sea and creates an offence of strict liability However, there are three specific circumstances in which the discharge of oil or oily mixture from a ship into sea is allowed First, the discharge of oil or oily mixture from
142 Abdulla Ahmed Adham (2011), “Flag, coastal and port state jurisdiction over the prevention of vessel source pollution in International Law: analysis of implementation by the Maldives”, Doctor of Philosophy thesis, Faculty of Law, University of Wollongong, page 88 a ship is allowed only for the purpose of securing the safety of a ship or saving life at sea Second, if the oil or oily mixture, as the case may be, escaped from the ship in consequence of non-intentional damage to the ship or its equipment, and all reasonable precautions were taken after the occurrence of the damage or the discovery of the discharge for the purpose of preventing or minimizing the escape of oil or oily mixture, as the case may be Third, if the oily mixture is discharged for the purposes of combating specific pollution incidents in order to minimize the damage from pollution, and the action has been approved by a prescribed officer, is exempt from further action
The applicability of Section 10 depends on size, type and age of vesels However, the regulations on discharging of oil or oily mixture into the sea among such vessels are quite the same Section 10 provides that the total quantity of oil discharged into sea does not exceed one part in 30,000 parts of the total quantity of the cargo of oil; the instantaneous rate of discharge of oil content does not exceed 30 liters per nautical milean Australian tanker may not leak more than; the tanker is more than 50 nautial miles from the nearest land
Section 10 also governs the obligation of Flag States to enforce the maximum allowable discharge rate that the discharge of oil or oily mixture from an Australian ship is allowed when the oil content of the effluent without dilution does not exceed 15 parts per 1,000,000 parts and the ship is proceeding en route
- The Obligation to Regulate Discharge of Noxious Liquid Substances and Harmful Substances in Packaged Form from Vessels
Part III of the 1983 Act implements MARPOL Annex II in the case of noxious liquid substances emission If a person is reckless or negligent, it is an offense to discharge a “liquid substance, being a substance or mixture carried as cargo or part cargo in bulk” into the sea If an Australian ship discharges a liquid substance, or mixture, into any sea, the master and the owner each commit an offence The exceptions and defenses are the same as in Part II There are comprehensive provisions for releasing chemical tank washings from cargo tanks, discharging while the ship is in motion if the ship is not sufficiently far from the nearest shore as follow
The tank of an Australian ship carries substance in Category X, high-viscosity or solidifying substance in Category Y, other substances in Category Y, substances in Category Z can only be discharged when it fulfills three standards 143 : (i) the ship is proceeding en route at a speed of at least 07 knots if the ship is self-propelled or at least
04 knots if the ship is not self-propelled; (ii) the discharge is made below the ship’s waterline through the ship’s underwater discharge outlets at a rate not exceeding the
143 Section 21(4), (5), (6), (7), (8) POTS Act maximum rate for which each underwater discharge outlet is designed; (iii) the discharge is made when the ship is at least 12 nautical miles from the nearest land and is in water at least 25 metres deep
Discharges of harmful substances in packaged form is strictly regulated under section 26AB of the Australian Protection of the Sea Act 1983 This section governs Prohibition of discharge by jettisoning of harmful substances into the sea Subsection 3 and 4 generally proscribes the discharge of harmsul substances from a ship into the sea and creates an offence of strict liability However, jettisoning of a harmful substance from a ship is allowed only for the purpose of securing the safety of the ship or saving life at sea
The “packaged harmful substances” section of Part IIIA of the Pollution from Ships Act 1983 implements MARPOL Annex III Its terms are equivalent to those in that annex These provisions are intended to address toxic cargo (harmful substance) that is likely to be contained in some way, is dangerous to the marine environment, and may also be hazardous to the ship Subsection 26A(1) provides definitions of harmful substance as it means a substance which either is identified as a marine pollutant in the International Maritime Dangerous Goods (IMDG) Code including thousands of listed substances; or meets the criteria in the Appendix of Annex III of the Convention Subsection 26A(1) also gives definition of packaged form which means a form of containment specified for harmful substances in the International Maritime Dangerous Goods (IMDG) Code
If an Australian ship carries harmful substance as cargo and jettisons it into the sea, anywhere in the water, the master and owner of that ship each commit an offence The usual defenses apply, such as jettisoning to ensure the ship's safety or to save a life at sea The Act also makes a person accountable who participates in activity that causes harmful substances to be ejected as a result of the person's recklessness or negligence There is one distinction to be made: if the container leaks a harmful substance and the ship discharges the substance into the sea, it is considered 'jettisoned' for liability reasons if it was not washed overboard in accordance with the conditions set out It is considered a 'strict liability' offense
- The Obligation to Regulate Discharge of Sewage and Garbage from Vessels
In terms of the “ship” category to which Annex IV applies, statements in the Act have the same meaning as those in Annex IV and that the regime applies to new ships of 400 gross tonnage or over, or new ships of less than that tonnage that are approved to transport more than 15 people Existing ships in either of these two classes have five years to comply
If sewage is discharged from a ship into the sea off Australia up to the outer borders of the EEZ, the master and owner are both accountable, and an Australian ship is liable in those seas and beyond These are considered'strict liability' offenses A person is held accountable if he or she participates in reckless or careless behavior that results in a discharge into the sea to the outside borders of the EEZ
The normal exceptions and defenses apply, such as ensuring the ship's safety or saving lives at sea, or sewage escaping as a result of 'damage' and all reasonable safeguards were taken before and after the escape Furthermore, if the ship is in motion, it may release sewage if it is steaming at the authorized pace, the sewage has been comminuted and disinfected, and the discharge rate is not greater than the allowed rate
A designated officer has the customary authority to order that sewage be released into a receiving area
FLAG STATES OBLIGATIONS TO PROTECT THE MARINE
The participation of Vietnam in MARPOL 73/78 and its role to implement
On 18 March 1991, Vietnam joined Annexes I and II of MARPOL 73/78 More than 20 years later, on 06 August 2014, the Vietnam Ministry of Transports recommended joining Annexes III, IV, V, and VI of MARPOL 73/78 On 16 October
2014, the President of Vietnam officially agreed to join the remaining Annexes
On May 11 2016, the Prime Minister signed Decision No 795 approving the Plan to implement Annexes III, IV, V, VI of MARPOL 73/78 Accordingly, the Ministry of Transports is assigned to assume the responsibility for, and coordinate with other ministries and branches in, implementing the Convention When joining MARPOL 73/78, Vietnam has to perform its committed obligations As a Flag State, Vietnam’s obligations are specifically as follows : (i) Taking measures to ensure the full implementation of the provisions under the Annexes of MARPOL 73/78; (ii) Establishing legal instruments governing the assessment, inspection and control of seagoing ships in accordance with the provisions of MARPOL 73/78; (iii) Ensuring adequate resources are provided to carry out inspection and certification of ships flying the Vietnamese flag, conducting accident investigations, and fully and promptly handling violations; (iv) Taking necessary measures to ensure compliance by ships flying the Vietnamese flag; (v) Developing and implementing appropriate ship monitoring and control procedures to assist in the prompt and accurate investigation of marine accidents involving pollution incidents
Being a member of MARPOL 73/78, Vietnam is committed to implement fully and comprehensively the provisions of MARPOL Convention to ensure the rights and interests of flag states and protection of the marine environment from vessel-source pollution Flag States obligations to prevent vessel-source pollution are regulated scatterly in various Vietnamese laws and sub-laws For laws, Flag States obligations can be found in the Vietnam’s Law on Protection of the Environment 2020; the Vietnam’s Law on Natural Resources and Environment of Sea and Islands 2015; and the Vietnam’s Maritime Code 2015 For sub-laws, Flag States obligations can be found in the Circular 23/2010 of the Ministry of Transports
The Vietnam’s Law on Protection of the Environment, the Law on Natural Resources of Sea and Islands, and the Maritime Code only regulate fundamental principles and general obligations to prevent vessel-source pollution Meanwhile, the
Circular 23/2010 (subordinate law) of the Ministry of Transports provides in detail some obligations to prevent vessel-source pollution This can be explained because the agency assigned to manage, monitor and implement the Convention on Marine Pollution is the Ministry of Transport 167
The implementation of Flag State obligations to protect marine environment
This part shows how Flag State obligations to protect marine environment from vessel source pollution are implemented in Vietnamese legal documents based on prescriptive jurisdiction and enforcement jurisdiction
3.2.1 Flag State prescriptive jurisdiction over protection of the marine environment from vessel source pollution under Vietnamese laws
There is currently no legislation in Vietnam implementing Flag State prescriptive jurisdiction for the protection of the marine environment from vessel source pollution There is no law in Vietnam that gives effect to the formulation of national laws for the prevention of vessel source pollution
The obligation to formulate laws on environmental protection can only be found in Article 63.1 of the Vietnam’s Constitution 2013, “The State shall adopt environmental protection policies; manage and use natural resources in an efficient and sustainable manner; conserve nature and biodiversity; and take the initiative in preventing and controlling natural disasters and responding to climate change” The Constitution is the law that has the highest legal effect in Vietnam but it only provides general regulations Therefore, it can be noticed that the Article 63.1 of the Constitution only indicates the obligation to formulate laws on environmental protection as a whole but does not specify the formulation laws on marine environmental protection from vessel source pollution Other specializing laws and subordinate laws in the field of environment in general and marine environment in particular such as the Vietnam’s Maritime Code 2015, the Vietnam’s Law on Protection of the Environment 2020, the Vietnam’s Law on Natural Resources and Environment of Seas and Islands 2015, and the Circular 23/2010/Ministry of Transport do not regulate any obligation to formuate national laws for the protection of the marine environment from vessel source pollution
3.2.2 Flag State enforcement jurisdiction over protection of the marine environment from vessel source pollution under Vietnamese laws
(i) The obligation to regulate discharge of pollutants from vessels
Under Article 11.1 of the Vietnam’s Law on Environmental Protection 2020, sources of waste discharged into seawater must be investigated and assessed and subject
167 Nguyen Hong Thao (2004), “Bao ve moi truong bien – Van de va Giai phap”, National Political Publisher, page 359 to any measure to be taken to prevent, minimize, control and treat them to satisfy the environmental protection requirements
Under Article 45 of the Vietnam’s Law on Natural Resources and Environment of Seas and Islands 2015, the obligation to regulate discharge of pollutants from vessels is as following
First , hazardous waste from sea activities must be collected, classified, stored, transported and treated according to regulations on environmental protection 168
Second , owners of vehicles transporting and storing petrol, oil, chemicals, radioactive substances, toxins and other substances running the risk of sea environment emergencies must have a plan for prevention and coping with environmental emergencies, ensuring no leakage, loss and spilling 169
Third , wastewater from ships, drilling rigs, and other works and facilities on the sea; oil sludge and mud containing toxic mixtures from petroleum exploration and extraction must be treated to meet technical regulations on environment before being discharged to sea 170
Fourth , ballast water, rinses, washing water, bilge water must be treated to meet technical regulations on environment before being discharged to sea 171
Fifth , discharge of ballast water, rinses, washing water, bilge water and other wastewater from ships is instructed in accordance with regulations of the laws on maritime, environmental protection, relevant law provisions and the international agreements to which the Socialist Republic of Vietnam is a signatory 172
Sixth , solid waste from ships, drilling rigs, works and other facilities on sea must be closely managed under the laws; mud dredged from navigable channels, ports must be transported to mainland or dumped at sea as prescribed hereof and relevant law provisions 173
Besides the Vietnam’s Law on Protection of the Environment 2010 and the Vietnam’s Natural Resources and Environment of Seas and Islands 2015, the Protocol of Circular 23/2010/Ministry of Transport also regulates the discharge of pollutants from vessels However, this Protocol only regulates the discharge of noxious liquid substances and harmful substances in packaged form from vessels as follows:
First , The discharge into the sea of noxious liquids while the ship is in transit is
168 Article 45.1 of Vietnam Law on Marine and Island Resources
169 Article 45.3 of Vietnam Law on Marine and Island Resources
170 Article 45.4 of Vietnam Law on Marine and Island Resources
171 Article 45.5 of Vietnam Law on Marine and Island Resources
172 Article 45.6 of Vietnam Law on Marine and Island Resources
173 Article 45.7 of Vietnam Law on Marine and Island Resources prohibited unless all of the following conditions are met:
(1) The vessel is sailing at a speed of at least 7 knots for a self-propelled vessel or 4 knots for a non-self-propelled vessel;
(2) Discharge shall be carried out under the waterline through discharge holes under the waterline which shall not exceed the maximum designed discharge intensity However, for ships built before 1 January 2007 the discharge into the sea of Class Z substances or substances provisionally assessed as Class Z substances as well as ballast water, tank washings or other mixtures containing substances that below the waterline may be exempted;
(3) Discharge must be carried out at a distance of not less than 12 nautical miles from the nearest shore;
(4) Discharge must be carried out at a place where the water depth is not less than
Second , discharge of noxious liquid substances of Class X into the sea is prohibited If tanks containing noxious Class X liquids or mixtures are to be washed, the resulting residue should be discharged into the receiving facility until the concentration of the hazardous liquid is reached in the discharge stream to the receiving vehicle equal to or less than 0.1% by weight and until the cellar is empty It is specified that the residue remaining in the cellar after dilution with water may be discharged into the sea provided that it is in accordance with the discharge standard
Third , apply the discharge standard for the discharge process of noxious liquid residues of low viscosity and non-solidification of categories Y and Z If Class Y and Class Z substances are not carried out in accordance with approved procedures and equipment for the discharge of hazardous liquids, a prewash must be carried out and discharged into the receiving vehicle at the port of discharge When the receiving facility of another port is capable of receiving it, it can be discharged into that vehicle A highly viscous or solidified substance of Class Y shall not be discharged into the sea A prewash in accordance with 4.2 Part 4 shall be carried out, and the water residue mixture obtained during the prewash shall be discharged into the sea means of receiving until the tunnel runs dry The water then taken into the cargo tank may be discharged into the sea in accordance with the discharge standard
Fourth , Discharge into the sea of noxious liquids or mixtures thereof into the
Antarctic region is prohibited “Antarctica” means the sea area south of the 600th parallel south
Fifth , discharge into the sea of substances deemed harmless to human health, marine biological resources and other lawful uses of the sea are not subject to control under this regulation These substances are listed in Table 8E/17.1 and Table 8E/18.1 of
Part 8E - National Technical Regulation on Classification and Construction of Steel Shell Ships, with the letter “OS” column ‘C’ of each table
As can be seen from the above, only the Circular 23/2010/Ministry of Transport provides in detail the obligation to regulate discharge of noxious liquid substances and harmful substances in packaged form from vessels However, the noxious liquid substances and harmful substances in pacakaged form are only one of the pollutants from vessels Other pollutants such as oil and oily waste, sewage, garbage, emissions from the exhaust of vessels are not regulated in this Circular
(ii) The obligation to detect unlawful discharges from vessels
The obligation to detect unlawful discharges from vessels is regulated in Circular 23/2010/Ministry of Transport
Part 3 provides regulations of construction and equipment to prevent oil pollution Chapter 2 of Part 3 clarifies installation requirements of equipment to prevent oil pollution from the engine room, including the General rules; Contain and discharge oil residue; Oil filter system (15ppm separator), oil discharge recording and control system for bilge water, and bilge storage tanks Moreover, Chapter 3 of Part 3 provides regulation of construction and equipment to prevent pollution caused by oil in bulk, including the General rules; Ship hull structure; Arrangement of equipment and piping system; Crude oil washing system
Part 4 provides regulations of construction and equipment to prevent pollution caused by the discharge of hazardous liquids in bulk Chapter 4 of Part 4 regulates the equipment to prevent discharge of hazardous liquids, including 6 types of equipment such as (1) Pre-washing system; (2) Dredge suction system; (3) Underwater drainage system; (4) Discharge system to receiving vehicle; (5) Air cleaning system; and (6) Isolate ballast tank
Comments on the implementation of Flag State obligations to protect the
3.3.1 Comments based on the legal forms
First , Vietnam does not have an Act that specifically implements MARPOL
73/78 The implementation of MARPOL Convention is distributed scatterly in different laws and subordinate laws of Vietnam This has led to difficulty in finding the regulations since they are not concentrated in a single legal document Even more, Vietnam only adopts the general regulations but for other specific regulations, Vietnam links to “relevant law provisions and the international agreements to which the Socialist
Republic of Vietnam is a signatory” 178 This is an indirect way as we have to look up other international treaties to collect further regulations This even makes the work of finding regulations much more difficult and disturbing
Second , the Circular 23/2010/Ministry of Transport is the only Vietnamese legal document that significantly implements MARPOL regulations However, under Vietnam’s legal system, since Circulars are subordinate laws, they have lower legal effect than laws Flag State obligations should be given effect by laws rather than subordinate laws because laws always have higher legal effect than subordinate laws This can be explained because laws are adopted by the General National Assembly, which is the highest competent authority in Vietnam; while subordinate laws are adopted by the Goverment, the Ministries, the Local People’s Committe, etc which are all below the General National Assembly Subordinate laws should only be a supportive tool or guidance to implement laws, which means subordinate laws cannot replace laws to formulate Flag States obligations in our legal system
3.3.2 Comments based on the legal contents
First , Vietnamese laws on protecting marine environment from vessel source pollution still lack several obligations These lacking obligations include the obligation to formulate laws on pollution prevention (prescriptive jurisdiction); the obligation to ensure that harmful substances are appropriately packaged, labelled, and stowed onboard vessels and the obligation to investigate reports by other States of non- compliance by vessels (enforcement jurisdiction) As a member State which has ratified all 6 Annexes of MARPOL 73/78, Vietnam shall give effect to all MARPOL regulations through our national laws It is urgent for Vietnam to adopt fully the obligations of Flag
178 Article 45.6 Vietnam’s Law on Natural Resources and Environment of Sea and Islands 2015
States to protect marine environment from vessel-source pollution in accordance with MARPOL 73/78
Second , some Flag States obligations under Vietnamese laws are not well clarified, such as the regulation of Flag States obligation to regulate discharge of pollutants from vessels Unlike MARPOL and the Australian laws that have been analyzed in the previous chapter, our laws do not distinguish various pollutants into different categories, such as (1) oil and oily waste; (2) noxious liquid substances and harmful substances in packaged form; (3) sewage and garbage; and (4) emissions from the exhaust of vessels The Vietnam’s Law on Protection of the Environment 2020 only uses the general term “sources of waste discharged into seawater” Moreover, the
Vietnam’s Law on Natural Resources and Environment of Sea and Islands 2015 tends to list out various pollutants such as hazardous wastes, petrol, oil, chemicals, radioactive substances, toxins, ballast water, rinses, washing water, bilge water, and solid waste rather than classify them into different categories Each pollutant category has its own regulations and is different from the others Without dividing pollutants from vessels into distinguished group, it makes the Flag State obligations to regulate discharge of pollutants under Vietnamese laws so unclear and vague
From the first and second aformentioned comments on the lack of several Flag States obligations and some vague regulations of Flag States obligations under Vietnamese laws, the authors want to make comparisons between Vietnamese laws and Australians laws on prevention of vessel source pollution Vietnam is a country following the socialist law legal system According to the nature of comparative laws, the characteristic of socialist legal system is that written law is the main source of law, so the level of codification is very high 179 Codification is the process of bringing together a legal act (or several related acts) and all its amendments into a single new act
It means the development and drafting of a new legal document on the basis of reviewing, systematizing and gathering provisions in many existing legal documents Only the Circular 23/2010/Ministry of Transport has clarified the obligation to regulate discharge of noxious liquid substances and harmful substances in packaged form from vessels (which is a small part of the main obligation to regulate discharge pollutants from vessels); the obligation to detect unlaw discharges; the obligation to conduct statutory surveys; and the obligation to issue and endorse onboard documentation on pollution control The remaining Flag States obligations either have not regulated yet or have regulated but in a very “vague” way Australia, on the other hand, is a country following the common law legal system According to the nature of comparative laws,
179 Peter De Cruz (1999), Comparative Law in A Changing World, Second Edition, Cavendish Publishing Limited, page 183 – 212 the characteristic of the common law legal system is that case laws (or precedents) are the main source of law, so the level of codification is still limited and to a lesser extent because they focus on developing a system of precedents 180 However, Australia has developed the Protection of the Sea (Prevention of Pollution from Ships) Act 1983, along with the Navigation Act 2012 and the supportive Marine Order 503 by the Australian Maritime Safety Authority that significantly implement MARPOL regulations Their federal laws on the protection of marine environment from vessel source pollution are clear and detailed Comparing between Vietnamese and Australian laws have shown that it is surprising although Vietnam follows the socialist law legal system while Australia follows the common law legal system, the substantive laws of Vietnam on protecting the marine environment from vessel-source pollution are less developed than those of Australia
Third , Vietnamese laws lack definitions of Flag States, vessel-source pollution, and even marine environment Definitions always come first, then followed by contents The definitions are the base to take a deep step into the nature of the matter The Vietnam’s Law on Protection of the Environment 2020 only explains the terms of environment, environmental pollution, environmental monitoring, pollutant, and waste The Vietnam’s Law on Natural Resources and Environment of Sea and Islands 2015 only gives explanations of natural resources of seas and islands; oil and toxic chemincal spill, and risk of environmental pollution Moreover, the Vietnam’s Maritime Code 2015 only explains terms of various kinds of vessels As can be seen, among the Vietnam’s Law on Protection of the Environment, Law on Natural Resources and Environment of Sea and Islands, and the Maritime Code, there are no definitions of Flag States and vessel-source pollution Even only the definition of environment in general is given but no definition of the term “marine environment” can be found in those laws By knowing the meaning of marine environment, Flag States, and vessel-source pollution, we can understand the relationship between Flag States and vessel source pollution that a Flag State has such an important role over ships flying under its flag in protecting the marine environment from vessel-source pollution
3.4 Recommendations to improve the implementation of Flag State obligations to protect the marine environment from vessel source pollution by Vietnam
3.4.1 Recommendations based on the legal forms
Vietnam should implementing Flag States obligations to protect marine environment from vessel - source pollution in accordance with MARPOL 73/78 through a single Act on Prevention of Pollution from Ships A single Act specializing in Flag
States obligations to protect marine environment from vessel-source pollution must be established in order to replace scattered regulations in various laws and subordinate laws This is an effective solution as it helps us to find all the information relevant to Flag State obligations in a quick and easy way Currently, Vietnamese laws on environment adopted by the National General Assembly only provides fundamental principles and the most general obligations, while specific obligations are regulated in subordinate laws – the Circulars adopted by the Ministry of Transport It should be paid attention that a law always has a higher legal effect than a subordinate law because laws are adopted by the General Assembly which is the most powerful organ in Vietnam; while subordinate laws are adopted by the Government, the Ministries, or the People’s Committee, etc which are all the subordinate bodies of the General Assembly Therefore, subordinate laws should only be a supportive tool to implement the laws They cannot be replaced by laws to adopt regulations Hence, the regulations of Flag States obligations must be adopted in laws rather than subordinate laws Therefore, we highly recommend that a single law on Flag State obligations to protect marine environment from vessel source pollution must be developed in order to synchronize all the current scattered regulations in different laws and subordinate laws and to have a high legal effect in the legal system of Vietnam
3.4.2 Recommendations based on the legal contents
First , Vietnamese laws must fulfill any lacking Flag States obligations to protect marine environment from vessel source pollution The lack of the obligation to formulate national laws for the prevention of vessel source pollution (prescriptive jurisdiction); the obligation to ensure harmful substances are appropriately packaged, labelled, and stowed onboard vessels and the obligation to investigate reports by other states of non-compliance by vessels (enforcement jurisdiction) needs to be fulfilled in accordance with MARPOL 73/78 Vietnam joined Annex I and II of MARPOL on 18 March, 1991 and the other Annexes of MARPOL on 16 October, 2014 Being a member of MARPOL, Vietnam is committed to implement fully and comprehensively the provisions of MARPOL Convention to ensure the rights and interests of flag states and protection of the marine environment from vessel-source pollution Lacking any Flag States obligations under MARPOL is unacceptable
Second , Flag States obligations to protect marine environment from vessel source pollution under Vietnamese laws must be clarified in detail Among the three Vietnamese laws including the Law on Protection of Environment, the Law on Natural Resources and Environment of Seas and Islands, the Maritime Code and the subordinate law Circular 23/2010/Ministry of Transport, only under the Circular 23/2010 do we find Flag States obligations being regulated clearly and specifically The three mentioned laws only provide a few Flag State obligations in such a general way that cannot reflect fully the implementation of MARPOL 73/78 Therefore, we can adopt directly the regulations of MARPOL 73/78 into our domestic laws as it is the way not only can we ensure that MARPOL regulations are domesticated into Vietnamese legal system but we can also ensure that our domestic regulations reflect MARPOL thorougly Some MARPOL regulations when being given effect through Vietnamese legal frameworks can be amended in order to suit the concerned situations in Vietnam; however, these amendments should act in a manner consistent, so far as is reasonable and practicable with MARPOL 73/78
Third , definitions of marine environment, Flag States, and vessel-source pollution must be clarified in the law Definitions are the base in order to understand the nature of the matter Understanding the meaning of marine environment, we can know that the marine environment is not only the waters of the seas and oceans, the seabed and the subsoil but it also counts the airspace above the waters Therefore, protecting marine environment also means to protect the airspace above the waters It should not be confused that the airspace above waters belong to the atmospheric environment but it is also a part of the marine environment That is the reason why MARPOL 73/78 adopted its Protocol which is the latest Annex VI on prevention of air pollution from ships in 1997 and it entered into force on 19 May, 2005 Emissions from the exhaust of vessels are treated as pollutants from vessels; hence Flag States have the obligation to regulate emissions from the exhaust of vessels Moreover, definitions of Flag States and vessel-source pollution must be provided so that we can understand the essential role of Flag States to prevent pollution from ships because a ship flying under whose flag has to comply with that State’s laws and regulations and by laying down laws and validly enforces them, Flag States can ensure that their vessels protect the marine environment The definitions of these terms can be as follows: