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International Legal Framework Applicable To Marine Pollution by Ultra Hazardous Wastes Introduction Recent advancements in shipping technology have made unmanned or remote controlled merchant ships a realistic possibility in the near future. Currently, there are light vessels or small ships which use remote systems in navigation. These ships can be catagorised into (1) Unmanned Aerial Vehicles (UAVs), (2) Unmanned Ground Vehicles (UGVs) and (3) Unmanned Marine Vehicles (UMVs). These ships or vessels can also be classified into remotely operated vehicles (ROVs) and autonomous vehicles (AVs). The operation of these types of vehicles presents new challenges to regulators and policy makers. For instance, the current international and national marine legal frameworks did not anticipate these types of ships or vessels. In this case, regulators must find ways in which unmanned ships can be integrated within the existing maritime regulatory framework. Due to this, the author argues that international marine environment regulations should take precedence over domestic Mongolian marine laws if the Mongolian-flagged remotely controlled ships operate in international waters such as the Atlantic Ocean. Part 1: Requirements under International Maritime and Environmental Law for remotely controlled Ships Registered in Mongolia Mongolia is one of the countries that offer flags of convenience to shipping companies. Under this legal arrangement, a merchant ship can be registered in a ship registry created in Mongolia so that the ship is subjected to the laws of Mongolia. Since Mongolia is a landlocked country, ships flying its flags will be subjected to laws of other coastal states and international conventions. As a flag state, Mongolia may provide a buffer to ship owners in terms of taxes, strict regulations, and insurance requirements but will not shield ship owners from complying with the international marine environment regulations. In some cases, fleets of ships bearing flags of convenience have been characterized by poor conditions, inadequately trained crew and frequent collisions which have resulted in disastrous oil spills. In this case, regulating unmanned ships by countries such as Mongolia can be very tricky given the extent of challenges they are faced with already. Mongolian maritime legislation consists of the Constitution of Mongolia and other legislative acts which conform to the constitution. The laws of Mongolia apply to all types and forms of ship ownership that engage in marine activities while flying the state flag of Mongolia. Mongolian vessels are registered at the registration port located in the city of Ulaanbaatar. Under the laws of Mongolia, it is the duty of the government to establish, transfer and close registration port. Furthermore, the government develops procedures for registering vessels flying the Mongolian flag. However, the register of Mongolian vessels is open to both citizens and non-citizens. Meanwhile, flags of convenience are a legal framework which can be used by ships to hide ownership and to cloud maritime transparency. The FOC system and the layers of corporate ownership and front companies that accompany it provide a veil of anonymity for criminals and terrorists. The flag of convenience system is also one of the primary ways oil companies avoid paying taxes by hiding the actual location of crude oil production and refining. So Mongolia may be arranging territorial access for shipping, but it is also entering into questionable international shipping operations. Basically, unmanned ships or craft are remote controlled by a controller from either side of the shore or from the mother vessel using a computer. The controllers use radio communication and the global positioning systems (GPS) to help in navigation and information access about the ship. The remote controller is also aided by live streaming of visual, audio and infrared images of the craft’s vicinity. Though these ships are seen as the future of shipping industries, questions have emerged regarding issues such as determination of liability and compensation framework. According to theUnited Nations Convention on the Law of Sea (UNCLOS), the ship’s nationality is that of the flag state. Just like with conventional ships, flag states such as Mongolia have a duty as set out in Article 94 of UNCLOS to exercise its jurisdiction and control over the ships flying its flag. Nevertheless, it can be challenging for the flag states to determine the extent of this responsibility from the perspective of unmanned shipping. Despite this challenge, UNCLOS gives particular flag states the authority to ensure safety at sea, construction and sea worthiness of all types of vessels as well control over the use of signals and maintenance of communication at sea. Existing international and national regulations contemplated existence of master and crews in the operation of the ship. In this case, these regulations, it can be argued, did not contemplate unmanned ships. To integrate unmanned ships within the conventional legal framework, the definition of the term ‘ship’ must be refined to include these types of vessels unless there is sufficient reason to treat them differently. According to English law, a ship is defined as ‘any vessel used in navigation’. Using this general definition, unmanned ships will fall under the broad category of ships and other navigational vessels. This definition is also consistent with other international conventions definitions such as MARPOL Convention that defines a ship as a ‘vessel that operates in the marine environment and includes hydrofoil boats, air-cushion vehicles, submersibles, floating craft and fixed or floating platforms. In addition, the 2005 SUA Convention includes vessels which are not permanently attached to the sea bed including dynamically supported craft. Elsewhere, MARPOL and SOLAS conventions oblige ships of the non-contracting states to comply with the rules of the port state or face the consequences as if they were non-compliant ships. Elsewhere, Article 15 of the 2001 Underwater Cultural Heritage Convention empowers state parties to “prohibit the use of their territory, including their maritime ports … in support of any activity directed at underwater cultural heritage which is not in conformity with this Convention .” Under MARPOL, the flag state, Mongolia can initiate proceedings against the ship if it violates the convention under the jurisdiction of the state party. Mongolia is also obligated by MARPOL to inspect or investigate concerns for violations. It is also the duty of the flag state to decide the sufficiency of evidence and proceedings against the ship. In the case of ships of non-parties to the convention, the requirements of the current convention would still apply to reduce cases of favoritism and enhance fairness. Meanwhile, international marine environment laws limit the powers and authority of the flag state such as Mongolia in relation to operations across the Atlantic Ocean. For instance, in the case of Wilmina shipping AS v. United States Department of Homeland Security, the District Court judge ruled that the Coast Guard did not violate the right of the plaintiff in issuing an order to inspect a ship that had docked in Corpus Christi, Texas. In this case, Wilmina Shipping AS, a Norwegian flagged tank vessel had argued that the defendant violated its rights by revoking its Certificate of Compliance and its access to U.S waters for a period of three years. The plaintiff argued that the Coast Guard did not have a statutory authority to issue such an order. Despite these arguments, the Court upheld the order. Despite the consistency in the definition of conventional and unmanned ships, there are some legal challenges faced with the developments in unmanned shipping technologies. For example, there are no international or domestic legal provisions which highlight how the operations of unmanned ships can be conducted safely. In the absence of such regulatory framework, there is no means in which the safety of unmanned ships operations can be determined. Consequently, the liability and compensation regime should, therefore, include measures to prevent and minimize pollution damage within a particular territory, territorial sea, EEZ or area of a state party to the convention regardless of the type of ship. According to UNCLOS, the coastal state has full prescriptive and enforcement jurisdiction over the internal waters. UNCLOS defined internal waters as the landward side of the coastline of a country’s territorial waters. They include rivers, canals, and waters within small bays. In internal waters, the state has the authority to make navigation regulations as well as develop rules for ships using the waters without any restrictions. Since most of the states share coastlines, it is essential for them to cooperate in development and implementation of marine protection regulations. As a result, several multilateral environmental conventions have adopted enabling clauses that promote international cooperation among states in establishing liability and compensation mechanism due to marine pollution. The liability and compensation regime also provides a framework for determining the pollution damage. The pollution damage is basically defined as losses occasioned by the contamination of the marine environment. Alternatively, pollution damage can be described as the loss of profit or environmental impairment caused by pollution. Compensation is normally limited to the cost actually incurred or the cost to be incurred in reinstating the contaminated environment. In most of the conventions, polluter pays principle has been enacted to ensure that the party responsible for the pollution pays for the damages done to the environment. This principle is common with most of the Organization for Economic Cooperation and Development (OECD), and European Union (EU) countries. In the United States, it is a fundamental principle guiding liability and compensation regime in marine environment pollution cases. During the 3rd UN Conference on the Law of the Sea (1973-1982) some provisions with the IMO conventions regulating state’s obligations were enacted. De La Rue and Anderson indicated that these provisions required the states to cooperate in enforcing polluter pays principle in relation to liability and compensation for the loss, damage, and preventive measures. These conventions developed criteria and procedures through which the polluter would pay adequate compensation. To do so, there is a need for shipping companies using the Atlantic Ocean to have a compulsory insurance and compensation funds. In this case, a ship operating within the Atlantic Ocean should be prepared to pay for the damages in case its activities lead to pollution of the ocean. However, depending on the extent and seriousness of the marine pollution, some regimes adopt polluter pays principle along with other flexible liability and compensation regulatory clauses. For instance, there are circumstances where the polluter pays principle application will be limited. The aim of enacting this principle is to help in the enforcement of the environmental standards and the liability and compensation mechanism. The coastal states apply different laws in addressing vessel-source pollution. Despite having different local laws, these states can be members of a single international regime. As such, the domestic laws tend to be consistent with the requirements, principles, and provisions of the international legal regime. The International Convention for the Safety of Life at Sea (SOLAS) highlighted that the signatory states must implement the convention requirements to ensure a safer and well protected marine environment. For example, Mongolia will be required to provide the International Maritime Organisation (IMO) with the details of non-governmental agencies authorized to act on behalf of the coastal state, national laws documents enacting SOLAS and specimens of certificates provided to their ships in order to have these circulated to other contracting states (Art.3). According to UNCLOS, there is need for operators of unmanned ships to be conversant with the provisions of the International Regulations for the Prevention of Collisions at Sea 1972 (COLREGS). According to COLREGS under Rule 2, the owner, the crew or the master of any vessel is responsible for its operations and any other liability that may arise as a result of the operations of the vessel. Part 2: Powers a Coastal State Has To Prohibit the Operation of Such Ships in Its Jurisdictional Zones or Detain Them When They Enter Its Ports Normally, every state has a right to define and implement its own regulations within the breadth of its territorial sea up to the limit not exceeding 12 nautical miles. In this regard, the coastal state has exclusive powers to explore, exploit, conserve and manage natural resources within an Exclusive economic zone of a maximum of 200 nautical miles from the baselines. Beyond this region, no state can exercise its full sovereignty, i.e., within the high seas. However, the high seas are not ‘legal vacuums’ as the flag state’s rights and obligations applies in these areas. From the perspective of legal jurisdiction, ships which are sailing on the high seas are subject to the exclusive jurisdiction of the flag state. The coastal states’ rights were however limited with the introduction of a liberal regime of navigation. That is, the ship owners or operators have the right to navigate the territorial sea. However, within the context of protecting the marine environment, the navigational rights may be restricted by an individual coastal state. In this regard, it is the responsibility of the coastal state to give permission to ships in relation to navigational matters. That is, the coastal state has full authority to enact domestic laws that will prevent potential degradation of the marine environment. Elsewhere, the international laws give the state full authority with respect to the administration of ports within its territory. Given these powers and rights, the states can deny access to foreign vessels, impose conditions for access and the use of the port, board and inspect the ship that entered its port, detain the ship and impose fines on the ships within its port. However, the international laws require the state to exercise moderation and restraint when exercising its authority over its ports and internal waters. Elsewhere, the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS Convention) was adopted in 1996. The HNS Convention was passed by signatory states to add strength and bridge the gaps of earlier conventions in relation to marine pollution. Since the HNS Convention failed to address all the issues in relation to transport or shipping of hazardous and noxious substances, a new Protocol was passed in 2010 which was intended to address the practical problems which hindered ratification of the original Convention by various states. The HNS Convention is regulatory framework guiding compensation for damages associated with transport or shipping of hazardous and noxious substances by sea. The goal of this convention was to provide adequate and effective compensation for loss or damages that may occur to persons, property or environment. The HNS Convention model is similar that established under the CLC Convention and Fund Convention where compensation fund is created as a supplementary mechanism. Consequently, judgments regarding liability and compensation are delivered based on the 1992 CLC. The cases are heard in the courts of the states that have suffered damage within their territory, territorial seas or their EEZ. These states have the jurisdiction to hear the claims against the ship owner and the insurer or the provider of the security. Though the Convention does not clearly indicate the period of notice of a commenced action to the defendant, this period is required to be reasonable. The final judgments from the courts of the contracting states should be recognizable and enforceable. For example, in the case of D'Amico Dry Limited, v. Primera Maritime (Hellas) Limited, the United States District Court for the Southern District of New York dismissed the plaintiff’s argument that court lacked subject matter jurisdiction. In this case, Primera was sued by D’Amico for refusing to pay the agreement they had on a futures contract. English Court had rendered the judgment in favor of D’Amico. D’Amico then brought the case to the United States for enforcement of the English court’s decision. From this case, one can conclude that United States courts have powers to enforce judgment issued by a foreign non-admiralty court if the underlying claim would be deemed maritime under the standards of U.S. law. Nevertheless, the defendant must be given a fair opportunity to defend and recognize the foreign judgment. Conclusion A flag of convenience is a concept common in the shipping industry where ships can register in countries like Mongolia to avoid strict regulations or tax legislations. However, in this paper, the author argued that international marine environment regulations take precedence over domestic Mongolian marine laws if the Mongolian-flagged remotely controlled ship operates in international waters such as the Atlantic Ocean. Under the UNCLOS, the laws of the flag state will only be effective within its EEZ and on the high seas. Beyond these regions, the Mongolian-flagged ship will be subject to the laws of the coastal state. In this regard, the coastal state or the port state will have the authority to inspect or send back the ship. Subsequently, the application of marine laws on the operations of remotely controlled ships is limited as the international conventions and legal principles usually apply outside the legal jurisdiction of Mongolia. Considering various aspects of maritime laws and challenges of unmanned shipping, it is important to review the liability of the ship owner and the operator in the case of unmanned ships. Furthermore, these changes should also be accompanied with the generalized objective liability on the part of the owner or strict liability in the case of ships controlled by artificial intelligence. Moreover, there is need to demarcate the extent of liability between the user and the vessel controller.

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