선박기인대기오염에 대한 기국의 국제책임에 관한 연구

Abstract

In the international law, two main efforts have been made to protect the environment in terms of rule-making process. One is to enact substantive laws imposing obligations to prevent the environmental pollution. The other is to impose the international responsibilities on States which cause transboundary pollutions. These kinds of efforts are also made in the air pollution prevention area.

In the international shipping, International Maritime Organization has been enacting substantive laws to prevent the ship-sourced air pollution. MARPOL 73/78 Annex VI adopted by 1997 Protocol is the representative substantive law regarding the prevention of air pollution from ships. The Annex VI regulates emission of air pollutants such as nitrogen oxides, sulphur oxides, volatile organic compounds, ozone depleting substances, etc. In addition, the Marine Environment Protection Committee, at its 62nd session, adopted regulations on energy efficiency for ships which regulate emission of greenhouse gas from ships, which will enter into force on 1 January 2013. Parties to MARPOL 1997 Protocol shall discharge their obligations with regard to the protection of air pollutions through regulating emission from their flagged ships in accordance with MARPOL 73/78 Annex VI. However, there exist no provisions regarding flag States' responsibilities in cases where harm occurs as a result of the breach of obligations such as failing to regulate emission from their flagged ships. For this reason, the international responsibility of flag States has not been studied yet. Unlike fixed land facilities, emission from ships, due to their mobility, can cause pollution in internal waters, the territorial sea and the exclusive economic zone of other States. Furthermore, it may affect the high sea and the environment globally. Bearing in mind the fact that a ship falls into a jurisdiction of a flag State, the ship-sourced air pollution can be considered the transboundary air pollution and accordingly, it is subject to the international responsibility of the flag State. Therefore, it is necessary to study the international responsibility of a flag State in the international shipping in the same way as in the international law where efforts have been made to impose the international responsibilities to States which cause transboundary pollutions.

In cases where a State breaches its international obligations, this entails the international responsibility of that State. A State assumes the general obligation to prevent from causing harm to the other States in accordance with, so called, the "no-harm" (sic utere tuo ut alienum non laedas) rule. This "no-harm" rule takes various forms and is also applicable to the flag State. First of all, the flag State shall effectively exercise its jurisdiction and control over ships flying its flag in accordance with regulations to prevent ship-sourced air pollution. There exist those regulations in various treaties. The flag State shall ensure that its flagged ships comply with requirements under MARPOL 73/78 Annex VI. Treaties such as Convention on Long-range Transboundary Air Pollution, Vienna Convention for the Protection of Ozone Layer, United Nations Framework Convention on Climate Change may apply to ships and consequently impose international obligations on the flag State. Nonetheless, the best way to prevent the ship-sourced air pollution is through MARPOL 73/78 Annex VI. In cases where the flag State breaches international obligations regarding the prevention of the ship-sourced air pollution in MARPOL 73/78 Annex VI, this entails the international responsibility of the flag State. In addition, the obligation with regard to the "no-harm" rule is also discharged in the form of the co-operation between States and futhermore through carrying out the procedural duties. These co-operation and procedural duties can be applied to the flag State as its international obligations. In cases where the flag State breaches these international obligations, this also entails the international responsibility of the flag State.

With regard to the implementation of the flag State's responsibility, there exist the inherent limitations in discharging the international obligations due to a lack of genuine link between the State and the ships. In addition, there exist limitations in implementing the consequent compensation due to the scientific uncertainty, the difficulty in proving the causal link, no existence of the applicable State responsibility related provision, etc. Taking into account the characteristics of the ship-sourced air pollution where it is extremely difficult in proving the causal link, etc., it may be more realistic to improve the former limitations than the latter. In this context, the inherent limitations in effectively exercising the flag State's jurisdiction and control over ships flying its flag can be overcome through introducing the precautionary principle under MARPOL 1997 Protocol, introducing the State responsibility related provision under the same Protocol, and introducing Flag State Control Scheme under MARPOL Convention. In addition, these suggested measures can be ensured, in terms of their implementation, through IMO Member State Audit Scheme. Furthermore, it is necessary to extend the jurisdiction of coastal State regarding ship-sourced air pollution for them to involve in regulating emission of ozone depleting substances and greenhouse gases in a responsible manner.

Imposing the responsibility on States which cause harm to the environment plays very important role in forcing States to comply with the substantive laws regarding the environmental protection. The purpose of this study is to identify and provide the improved measures in implementing the international responsibility of the flag State in relation to ship-sourced air pollution, which will, in turn, lead to the effective implementation by the flag State of the substantive laws regarding the prevention of the ship-sourced air pollution.