Japanese Measures against Marine Pollution under UNCLOS and the IMO Treaties

marpol 73/78. 2 unclos, arts. 207-211. city, hiroshima 737-8512 japan. 382 ug�tvsvu iii. japanese enforcement of laws and regulations for use the fuel of vessels compatible with the standards on sulfur oxide.34 the 2004 rules and standards."33 in the meantime, japan amended the marine pollution foreign vessels, such as giving careful consideration to the interests of navigation investigation and the collection of evidence concerning polluting activities at the early pollution arising out of vessel operations and accidents. the marpol 73/78 is a adopts the"precautionary approach"and the"polluter-pays principle."14 in addition, there are only a limited number of grounds recognized by international law for states 4 entered into force in 1975; japan acceded in 1980. london protocol of 1996 is an example of application of the precautionary approach, accordance with article 17 of the jcg act. article 17 is an enforcement procedure to stipulates the adoption and enforcement of domestic laws and regulations for the application, the act applies to any vessel in japanese internal waters and territorial 37 id. at art. 218, para. 1. annexes and the protocol of 1997 may be considered as de facto"generally accepted 40 japan coast guard act, art. 5(11). 2009). states in case of dumping or discharge from foreign vessels in local waters in violation of the coastal states'laws and regulations. it can be interpreted that coastal states, on the shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, rules, standards and recommended practices and procedures"especially through 38 act no. 131 of 1948. article 17 of the jcg act provides three authorities for officers of the jcg as follows: the japanese government may, at sea, apply and enforce its laws and regulations, 10 entered into force in 2007; japan acceded in 2007. 73/78 sets out the standards and methods for permissible discharges, and contains the international treaties including unclos. 12 annex i includes intermediate and high-level radioactive wastes, and wastes containing heavy metals such as 18 id. at 188. list"),13 and"a prior general permit"regarding dumping of any other wastes or other in case of dumping or discharge from foreign vessels in the territorial sea the coastal that of the flag state, that of the coastal state, and that of the state of a port into which a imo treaties 21 marine pollution prevention act, art. 1. copper, lead, nickel and vanadium, etc. passage, and take"the necessary steps"43 which includes the exercise of enforcement in accordance with international law need to be established. through the bond system, are interpreted to be in accordance with international law and 13 annex ii includes wastes containing a significant amount of the matters, such as arsenic, beryllium, chromium, undertake investigation and institute proceedings in case of discharge from a foreign but instead adopt an form of international minimum harmonization standard based on detailed provision as to the way to send a stop signal to a foreign vessel when exercising detailed treaties related to the marine environment to be adopted by the international natural origin.16 (1) the authority to order the production of the official papers on the vessel; (2) the option presents no danger to the freedom of navigation, and affords better facilities for the japanese practices of exercising jurisdiction over marine polluting activities by preparedness, response and co-operation of 1990 ("oprc convention");9 and the made structures at sea, inert and inorganic geological material, and organic material of and regulations, exercise criminal jurisdiction in accordance with the code of criminal however, these articles do not set any absolute standards to prevent marine pollution, addresses pollution by dumping, and stipulates that domestic laws and regulations apply to any vessel, including foreign vessels in japanese internal waters and territorial prosecutors office, etc., in accordance with the code of criminal procedure.38 26 entered into force in 1983. environment, and to obtain a confirmation of actual dumping from the commandant of marine pollution regulations for exercising jurisdiction at sea. article 1 of the jcg act provides the iv. conclusion adopted as japanese policy and in no way as implementation of an obligation under 23 unclos, art. 210, para. 6. addresses such illegal activities in internal waters by means of"the bond system."this competent international organizations or diplomatic conference."the imo is generally except according to procedure established by law."under such a constitutional analysis is divided into three sections. firstly, the relationship between part xii of (2002). tt�upftw�q�aqiixb uqoftf�xftvsft�hjotu�xsjujnf�pmmvujpo 383 codified the rules on jurisdiction, and recognizes three forms of national jurisdiction; proceedings regarding any discharge from foreign vessels in violation of"applicable "shall be no less effective in preventing, reducing and controlling such pollution than marine pollution by dumping of wastes and other matter of 1972 ("london and reverses the regulatory approach, from"permitted unless prohibited"to this right in the way that it does not hamper the innocent passage of its vessels. sea,22 as well as to any japanese vessel outside these areas. japan amended the marine by means of the bond system, which is also adopted as japanese policy. even if a coastal the london convention of 1972, its following protocol and the london protocol of 1996 the prevention of pollution from ships of 1973 ("1973 marpol");6 the protocol of 1978 annex i: regulations for the prevention of pollution by oil;26 vessel entered voluntarily.35 request from the state concerned. see patricia birnie and alan boyle, international law & the environment 375 marine pollution prevention act. the officers may, in the event of violation of such laws marine environment, unclos, imo, japan coast guard, london unclos authorizes coastal states to enforce their domestic laws and regulations the high seas, japan will inspect the vessel and investigate any polluting activities only the ratio of the combined merchant fleets of the contracting parties to the gross the right of hot pursuit against that vessel. the freedom of navigation. however, in order to take more effective measures against establishment and purpose of the japan coast guard ("jcg"). article 2 defines the mercury and cadmium, etc. 16 annex i of the london protocol 1996, article 1, paragraph 1 stipulates as follows:"the following wastes or other "matters concerning prevention of marine pollution." carried by sea in packaged form;28 one of he contented issues regarding the enforcement of laws and regulations the japan coast guard act ("jcg act")39 is one of the most important set of laws and within a port of the state. 37 annex v: regulations for the prevention of pollution by garbage from ships;30 and annex iv: regulations for the prevention of pollution by sewage from ships;29 386 ug�tvsvu regulations with penalties, the japan coast guard may, in the event of violation of such convention for the prevention of pollution from ships, 1973, as modified by the marpol 73, art. 14, para. 1. the objective of the marpol 73/78 is to prevent, reduce and minimize marine amendment of the act entered into effect on 19 may 2005, the same date the protocol of 22 since the definition of"vessel"excludes warships and ships used only in governmental non-commercial service 27 entered into force in 1983. system requires prompt release of vessels or crew arrested for such illegal activities secondly, japanese implementation of the imo treaties will be addressed in the convention of 1972");4 the 1996 protocol on the london convention of 1972 with regard laws and regulations, arrest, seize property, and bring or refer a suspect to the public 1996, japan amended the marine pollution prevention act in accordance with"the 33 unclos, art. 211, para. 2. 7 entered into force in 1983; japan acceded in 1983. sewage sludge, fish remnants, residue from fish-processing, vessels, platforms and man- if japanese laws and regulations have been established in such a way as to amend 9 entered into force in 1995; japan acceded in 1995. comprehensive enforcement jurisdiction in order to manage all sorts of activities at sea. incidents by hazardous and noxious substances of 2000 ("oprc-hns protocol").10 international rules and standards"on the high seas, when the vessel is voluntarily the perspective of international law and japanese domestic laws and regulations. the tt�upftw�q�aqiixb uqoftf�xftvsft�hjotu�xsjujnf�pmmvujpo 381 46 the exercising of the port states'jurisdiction covers polluting activities both on the high seas outside an eez and prevention, reduction and control of pollution of the marine environment, such as pollution prevention act in 1980 to ratify the london convention of 1972, and then owners to install and operate their engines compatible with such standards, as well as to combination of two treaties adopted in 1973 and 1978 respectively and updated by 34 marine pollution prevention act, art. 19(3 & 21). 384 ug�tvsvu vessels basis of their sovereignties or sovereign rights, may exercise such jurisdiction freely by control pollution of the marine environment by dumping.11 in order to regulate dumping of only the wastes or other matter listed in annex i, such as dredged material, dumping of five types of wastes and other matter, such as: (1) red mud; (2) sand and 8 entered into force in 2005; japan acceded in 2005. relating to the international convention for the prevention of pollution from ships of to prepare for entry into force of the protocol of 1997 which prevents air pollution via enforced by the japanese government. for example, japanese laws and regulations do annex vi: regulations for the prevention of air pollution from ships.31 matter are those that may be considered for dumping being mindful of the objectives and general obligations of this and ii, 95.76% for annex iii, 81.62% for annex iv, 97.18% for annex v, and 80.46% for lees); and (5) animal dung.24 serious pollution"42 in the territorial sea, its coastal state may deny the innocence of is prohibited.19 32 these rations are published at"summary of status of convention"of the imo website, available at http://www.imo. territorial sea, but also in their exclusive economic zones ("eez").36 and, under 2006 to august 2009, the japanese ministry of environment issued 60 permissions on measures against the protection and preservation of the marine environment from 5 entered into force in 2006; japan acceded in 2007. japan is a contracting party to many marine environmental treaties adopted by the 20 act no. 136 of 1970. 24 this data of permissions issued by the ministry of environment is published at the homepage of the ministry of within the coastal zones of another state, although in the latter case the port state may only act in response to a "prohibited unless permitted."18 under the negative listing approach, only listed its proceeding is suspended if the flag state of that vessel invokes similar judicial the protocol prohibits dumping in principle, stipulating as follows:"contracting parties ("black list").12 the convention further requires states to obtain"a prior special the discharge of oil, noxious liquids and other noxious wastes and gas. the marpol 29 entered into force in 2003. against marine pollution from foreign vessels, not only in their internal waters and reconsider japan's"moderate exercise of jurisdiction."at the least, the exercising of the 6 not yet entered into force. 41 unclos, art. 292. port states jurisdiction to marine polluting activities is a very attractive alternative. this stage, wherever such activities have taken place.46 environmental treaties of criminals at sea."40 article 15 stipulates as follows:"when officers of the jcg are while some provisions presuppose that japan has such rights. for example, there is a accordance with this convention"and the"applicable international rules and standards 30 entered into force in 1988. regarding the japanese implementation of marine environmental treaties. nitrogen oxide ("nox") emitting from engines of vessels. this amendment obliges ship under unclos and the protocol set out in articles 2 and 3." sea whether its flag state is a contracting party to the protocol or not. from december the japanese coast guard. as mentioned above, when ratifying the london protocol of proceedings within six months. 35 supra note 19, at 343-344. dumping, pollution from vessels and pollution from or through the atmosphere etc.2 to exercise jurisdiction in order to regulate marine pollution. unclos has largely matter into the sea to obtain permission for dumping from the minister of the in general is referred to as the marpol 73/78, and it entered into force in 1983. the global rules and standards."it further requires states to establish goals and regional established through the competent international organization or general diplomatic to be based on the high considerations of the interests of comity with other states and gravel on the bottom; (3) construction sludge; (4) waste acid (distilled spirit [shochu] 42 id. at art. 19, para. 2(h). keywords tt�upftw�q�aqiixb uqoftf�xftvsft�hjotu�xsjujnf�pmmvujpo 387 and passengers of the vessel. convention on the prevention of marine pollution and maritime disaster."21 although japan faces difficulties in implementing the rights and duties provided under or regulations."this provision authorizes jcg officers to exercise general and dumping of wastes or other matter originating from land into the sea, the london unclos) does not prohibit dumping but rather subjects it to a system of express prior the particular administrative office charged with the administration of the particular law conference"as mentioned in part xii of unclos. for example, article 210 of unclos 1 un doc.a/conf.62/122. unclos came into force in 1994 and was ratified by japan in 1996. author may be contacted at: tsuruta@jcga.ac.jp/address: the japan coast guard academy, 5-1 wakaba-cho, kure pollution prevention act also excludes such ships. marpol 73/78; the protocol of 1997; the international convention on oil pollution the marine environment, the law of the sea: progress and prospects 188-189(david freestone, richard barnes & however, article 31 of the constitution of japan stipulates as follows:"no person context of the regulations regarding both dumping waste into the sea from vessels david m. ong eds., 2006). in 1970, japan adopted the act on the prevention of marine pollution and maritime substances may be permitted to be dumped, while the dumping of all other substances basis of the"enforcement of laws and regulations at sea"under article 2, paragraph 1 of unclos, port states are also entitled to undertake investigations and institute imo, including: the london convention of 1972; the london protocol of 1996; the 11 unclos, art. 210, para. 6. org (last visited on oct. 14, 2009). existing laws or legislating new laws, etc. in order to implement international treaties, b. enforcement of the marine pollution prevention act pollution from land-based sources, pollution from seabed activities, pollution from the protection and preservation of the marine environment, the time has come to matter. 28 entered into force in 1992. approval.17 on the other hand, the so-called"negative listing approach"adopted by the stipulates the twenty-nine definite missions that the jcg shall carry out, including applying domestic laws and regulations to those polluting activities in internal waters unclos, as it does not necessarily have sufficient domestic laws and regulations to part xii of the united nations convention on the law of the sea ("unclos")1 state commences its judicial proceedings, it may only impose a pecuniary penalty, and upon the posting of a reasonable bond or other financial security.41 this system has been in order to prevent marine pollution, the jcg officers may inspect vessels in 43 id. at art. 25, para. 1. the marine pollution prevention act has no explicit provision on its scope of prevention act in 1983 and the related ministerial ordinances in order to ratify the marine environmental protection and its policy 44 id. ii. japanese implementation of the imo marine the jcg is authorized to exercise administrative enforcement jurisdiction on the annex vi.32 the international rules and standards set forth in the marpol 73/78, its the jcg act. moreover, the jcg could exercise judicial enforcement jurisdiction on the unclos stipulates that, in case a foreign vessel commits"any act of willful and environmental law 343-344(daniel bodansky, jutta brunnee & ellen hey eds., 2007). to dumping into the sea ("london protocol of 1996");5 the international convention for 14 the london protocol 1996, art. 3, paras. 1-2. activities at sea, japanese laws and regulations stipulating prohibition and punishment implement such rights and duties. some of those are directly or indirectly applied and accordingly, before japanese government exercises criminal jurisdiction over 36 unclos, art. 220, paras. 5-6. jun tsuruta marine environmental treaties are generally interpreted to be"global rules and standards"to prevent, reduce and prevent and suppress crimes, and detect and arrest criminals. for example, if each of the authority to stop, visit and inspect the vessel; and (3) the authority to question the crew protocol of 1978 relating thereto ("protocol of 1997").8 subsequent protocol on preparedness, response and co-operation to pollution 25 while annexes i and ii are obligatory for contracting parties to accept, the other annexes are optional. the and marine pollution from vessels. finally, this paper will clarify the problems japanese measures against basis of the"prevention and suppression of crimes at sea"and the"detection and arrest global rules and standards"23 as set forth in the protocol. these rules and standards 31 entered into force in 2005. ascertain the compliance of marine environmental laws and regulations including the 1973 ("marpol 73/78")7 and the protocol of 1997 to amend the international procedure. under the imo treaties concerning marine environment, it is generally interpreted that"vessel"in the marine rights granted to contracting parties of unclos is accepted by japanese laws and and displaying, and international certificates, etc. the following are six technical a. japanese implementation of international maritime treaties amendments through the years. as the 1973 marpol had not yet entered into force, 3 catherine redgwell, from permission to prohibition: the 1982 convention on the law of the sea and protection of state has the right to inspect foreign vessels. however, the coastal state shall exercise the purpose of this paper is to clarify the present state and problems of japanese the 1978 marpol protocol absorbed the parent convention. the combined instrument a. japanese measures against dumping into the sea from pollution prevention act is to"secure appropriate enforcement of international maritime organization ("imo"). missions of the jcg in general, including the"prevention of marine pollution."article 5 39 act no. 28 of 1948. detailed rules and standards on designs and equipment of vessels, methods of storage against foreign vessels is the interpretation of the"laws and regulations adopted in after its voluntary entry into a japanese port.44 whereas unclos allows port states to 45 id. at art. 218, para. 1. only seek information regarding the vessel, and notifies the vessel's flag state of such a engaged in enforcing laws or regulations, they shall be deemed to be acting as agents of regarded as a good example of a"competent international organization."the rules and convention of 1972 prohibited dumping of the wastes or other matter listed in annex i and deciding the legality of such acts. the marine pollution prevention act, however, annexes of the marpol73/78: listed in annex i,"15 and allows the parties to consider granting a permit regarding an obligation of result.3 absolute standards to prevent marine pollution can be found in the london protocol of 1996 represents a major change of the system to regulate bulk;27 tt�upftw�q�aqiixb uqoftf�xftvsft�hjotu�xsjujnf�pmmvujpo 389 the contrast between the london convention of 1972 and the london protocol of vessel in violation of"applicable international rules and standards"in eez,45 japan will not have provisions recognizing japan's right of hot pursuit under international law, permit"regarding dumping of the wastes or other matter listed in annex ii ("gray amendment of the act in 2004 obliged any person who will dump wastes and other annex ii: regulations for the control of pollution by noxious liquid substances in 1997 entered into force. i. the relationship between unclos and the imo tonnage of the world's merchant shipping at october 2, 2009 is 99.14% for annexes i 17 redgwell, supra note 3, at 187-188. 1996 is in regards to the regulations of dumping. the london convention of 1972 (and in principle, the annexes of the marpol73/7825 and the protocol of 1997 prohibit tt�upftw�q�aqiixb uqoftf�xftvsft�hjotu�xsjujnf�pmmvujpo 385 prohibition and punishment. 19 david freestone and salman m.a. salman, ocean and freshwater resources, in handbook of international b. japanese measures against marine pollution from vessels annex iii: regulations for the prevention of pollution by harmful substances environment, available at http://www.env.go.jp/earth/kaiyo/ocean_disp/3hakkyu/index.html (last visited on oct. 14, 388 ug�tvsvu 15 id. at art. 4, para. 1. jurisdiction. the marine pollution prevention act, however, addresses such pollution japan passed the 2004 amendment of the marine pollution prevention act in order discharge. unclos has no provisions on the exercising of enforcement jurisdiction by coastal dumping of wastes or other matter originating from land into the sea. the protocol principle, prohibition and punishment against certain activities that contracting parties protocol additionally, in case of dumping or discharge from a foreign vessel in an eez or on unclos and the imo marine environmental treaties will be addressed in brief. shall prohibit the dumping of any wastes or other matter with the exception of those associate professor of international law at the japan coast guard academy. ll.b.(sophia), ll.m.(tokyo). the standards adopted by the imo are as follows: the convention on the prevention of revised the act in 2004 and 2007 in order to ratify the london protocol of 1996. the are permitted to regulate under unclos may not be applied and enforced against any person under japanese jurisdiction, without a legal provision stipulating any disaster ("marine pollution prevention act").20 the primary purpose of the marine