On the Interplay of International Law of the Sea and the Prevention of Maritime Pollution - How Far Can a State Proceed in Protecting Itself from Conflicting Norms in International Law

Abstract

International law is evolving. While states recognize consensual "norms" established by years of traditional practice, there are times when these norms reached by states need to be revisited; for example, in order to prevent damage to fragile ecosystems. At the heart of this article is the following question: may a coastal state enact anti-pollution standards that go beyond those agreed upon in international conventions and enforce said standards even if they hamper innocent passage of vessels either in international straits or in territorial and internal waters?

In addressing this question, this article will analyze two examples in which the evolution of treaty concepts might be necessary to accomplish consistency between national and international law. The case studies of the State of Washington's efforts to protect its coastal environment and Turkey's right to monitor traffic in the Bosporus Straits provide the focus of discussion. These two case studies will demonstrate that, in order to achieve national and international legal congruity, depending on the urgency of the danger, unilateral actions of various states may need to occur first.

There have been numerous incidents regarding oil spills and ships losing their bearings and crashing into seaside homes. As a result, Turkey is desirous of "regulating" ships passing "innocently" through the Bosporus, i.e., a unilateral action proposed to prevent environmental and property damage to its citizens. Other states complain that Turkey wants to profit from the Caspian oil and gas boom, even though the ships may wind up bumper to bumper in the not-so distant future. However, Turkey's complaint is political. It is obvious that the 1936 Montreux Treaty never envisioned this amount of traffic by such large tankers. There remains the question of how Turkey can protect itself without limiting the flow of traffic. Is placing pilots aboard ships in "innocent passage" the answer? Is the passage still "innocent" if it can create a disaster? Certain principles of international law will be explored in conjunction with these two problems: unilateral actions in international law, reciprocity, self-defense and uniformity. Before proceeding with this exploration, it will be necessary for the reader to have an understanding of law of the sea terminology as utilized in this article.

Keywords: International law, law of the sea, international straits, Bosporus Straits, Turkey, environmental damages, property damages, Washington, ecosystem, pollution, anti-pollution standards, international convention, Caspian, oil, oil boom, gas boom, Montreux Treaty, coastal, innocent passage, tanker