Critical Review of the Concept of Significant Pollution and Its Impact on Flag State Pre-Emption Rights in Legal Proceedings Against Foreign Vessels
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Abstract
The Law of the Sea grants primary enforcement over polluting ships to the flag state, protecting them from foreign jurisdiction, as stated in Article 228 of UNCLOS as a pre-emption action. However, the jurisdiction beyond territorial waters has proven ineffective in preventing ship-source pollution or protecting coastal states. Pre-emption actions risk undermining the enforcement rights of coastal and port states under Articles 218 and 220 of UNCLOS. Pre-emption can only be overridden in certain situations, such as when ship pollution causes “significant damage” to a coastal state. A broader view of "significant damage" strengthens Coastal States' legal basis to tighten marine pollution regulations and enforce actions against foreign vessels in their EEZ. The method used in this research is normative juridical. The article concludes that “significant damage” links to “significant pollution,” shown by “clear evidence” of its impact on the “coastline or related interests” of the coastal state. Furthermore, all evidence and scientific data must show actual or potential harm, considering the cumulative impact on the coastal state's resources and interests. Therefore, a comprehensive and well-defined threshold for "significant damage" is essential to strengthen the legal framework for coastal states to ensuring effective enforcement measures against marine pollution.
Article Details
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Widodo, M. (2025). Critical Review of the Concept of Significant Pollution and Its Impact on Flag State Pre-Emption Rights in Legal Proceedings Against Foreign Vessels. Padjadjaran Journal of International Law, 9(1), 34-48. https://doi.org/10.23920/pjil.v9i1.1779
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References
Books
Alexander Proelss (eds), United Nations Convention on the Law of the Sea: A Commentary, Munich: Oxford and Baden-Baden, 2017.
Erik J. Molenaar, "Port and Coastal States," dalam Donald Rothwell, The Oxford Handbook of the Law of the Sea, Oxford: Oxford University Press, 2015.
Erik Jaap Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, The Hague: Kluwer Law International, 1998.
Hazmi Rusli, R. Dremliuga, and Wan I. Talaat, “Legal Framework on the Marine Environment Protection of Straits Used for International Navigation: Has It Been Effective in the Straits of Malacca and Singapore?”, dalam Eric Yong Joong Lee (ed), ASEAN International Law, Singapore: Springer Nature Singapore, 2021.
Mary George, An Alternate Regime of Liability and Compensation for Oil Pollution from Tankers in The Straits of Malacca and Singapore, A Doctorate Thesis, Sydney: Faculty of Law, University Of Sydney, 2000
Patricia Birnie (et al.), International Law and The Environment 3rd edition, Oxford: Oxford University Press, 2009.
R. Michael M’Gonigle, and Mark W. Zacher, Pollution, Politics, and International Law, Berkeley: University of California Press, 1979.
Other Documents
Alan E. Boyle, “Marine Pollution under the Law of the Sea Convention”, The American Journal of International Law, Vol. 79, No. 2, 1985.
Alexeeff GV, Faust JB (et.al), “A Screening Method for Assessing Cumulative Impacts”, International Journal of Environmental Research and Public Health, Vol. 9 Issue 2, 2012.
Arron N. Honniball, “Vessel-Source Marine Pollution and the Non- Suspension of Coastal State or Port State Proceedings: Pinpointing Flag States of Repeat Disregard in Article 228 of UNCLOS?”,
Baven Marten, "The enforcement of shipping standards under UNCLOS," WMU Journal of Maritime Affairs, Volume 10, 2011.
Case C-15/17: Judgment of the Court (Third Chamber) of 11 July 2018 (request for a preliminary ruling from the Korkein oikeus — Finland) — Bosphorus Queen Shipping Ltd Corp. v Rajavartiolaitos,.
Daniel Bodansky, "Protecting the Marine Environment from Vessel-Source Pollution: UNCLOS III and Beyond," Ecology Law Quarterly, Vol. 18, 1991.
David M. Dzidzornu, “Four Principles in Marine Environment Protection: A Comparative Analysis," Ocean Development & International Law, Volume 29, Issue 2, 1998.
Gonzalo Caballero and David Soto-Oñate, “Environmental crime and judicial rectification of the Prestige oil spill: The polluter pays”, Marine Policy, Vol. 84, 2017.
Ho Sam Bang, “Port State Jurisdiction and Article 218 of the UN Convention on the Law of Sea”, Journal of Maritime Law & Commerce, Vol. 40, No. 2, 2009.
I. A. Shearer, “Problems of Jurisdiction and Law Enforcement against Delinquent Vessels”, International and Comparative Law Quarterly, Vol. 35, No. 2, 1986,
Jiang Jiadong and Jiang Wei, "Port State Responsibility for Combating Vessel-Source Pollution: Enforcement and Safeguard Mechanisms," China Oceans Law Review, Vol. 2016 No. 1, 2016.
Jose Juste Ruiz and Valentín Bou Franch, “After the Prestige Oil Spill: Measures Taken by Spain, in an Evolving Legal Framework,” in Spanish Yearbook of International Law Online · January 2004.
J. Peter A. Bernhardt, "A schematic analysis of vessel-source pollution: prescriptive and enforcement regimes in the law of the sea conference." Virginia Journal of International Law, Volume 20, 1979.
Lan Ngoc Nguyen, “Coastal States Rights and Obligations under the Law of the Sea," in The Development of the Law of the Sea by UNCLOS Dispute Settlement Bodies, Cambridge University Press; 2023.
Lan Ngoc Nguyen, "Expanding the Environmental Regulatory Scope of UNCLOS Through the Rule of Reference: Potentials and Limits," Ocean Development & International Law, volume 52, issue 4, 2021.
McDougal and Myres Smith, The Public Order of the Oceans: A Contemporary International Law of the Sea, New Haven: Yale University Press, 1962.
Ricardo, “Evaluation of Directive 2005/35/EC on ship-source pollution”, Directorate-General for Mobility and Transport Maritime Safety European Commission, 2023.
Robert Rienow, The Test of the Nationality of a Merchant Vessel, New York Chichester, West Sussex: Columbia University Press, 1937.
Sophia Kopela, "Port-State Jurisdiction, Extraterritoriality, and the Protection of Global Commons," Ocean Development & International Law, Vol. 47 No. 2, 2016.
Ted L. McDorman, "Regional Port State Control Agreements: Some Issues of International Law," Ocean and Coastal Law Journal, Vol. 5, No. 2, 2000
Theodore Okonkwo, “International Maritime Legal Regime and The Escalation Of Flags Of Convenience Practices”, International Journal of Law, Volume 4 Issue 1, 2018.
UN Doc A/59/63 5 March 2004, United Nations General Assembly, Oceans and the law of the sea, Consultative Group on Flag State Implementation Report of the Secretary-General, available at.
UN Doc. A/CONF.62/WP.8/REV.1/PART III (1976), Art. 38, at. 179-180,.
Virginie Terrie, "Are "Black Tides" Inevitable?" Coventry Law Journal, Vol. 6, No. 2, 2001.
Yaodong Yu, Yue Zhao & Yen-Chiang Chang, "Challenges to the Primary Jurisdiction of Flag States Over Ships," Ocean Development & International Law, vol. 49, Issue 1, 2018.
Zacharias L. Kapsis, “The Prescriptive and Enforcement Jurisdiction of A Coastal State In Relation To Ship Source Pollution Occurs In Its Various Maritime Zones, Under The United Nations Convention On The Law Of The Sea And The Customary International Law," International Journal of Advanced Research, Vol. 8, Issue 11, 2020
Zhang Xianglan and Ye Quan, “Coastal State Prescriptive Jurisdiction over Pollution from Ships within Its Exclusive Economic Zone," Contemporary Law Review, No. 3, 2013.
2023 Joint NSN-OTSOPA Seminar on Maritime Environmental Crimes, Recommendation, available at.
Legal Documents
Basel Convention on the Control of Transboundary Movements of Wastes and their Disposal, 1991
Convention on the Continental Shelf, 1958
Convention on the High Seas, 1958
International Convention for the Prevention of Pollution from Ships, 1973 and, Protocol of 1978, And Protocol of 1998
International Convention on Civil Liability for Oil Pollution Damage, 1969
International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971
International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969
The United Nations Convention on the Law of the Sea, 1982
Alexander Proelss (eds), United Nations Convention on the Law of the Sea: A Commentary, Munich: Oxford and Baden-Baden, 2017.
Erik J. Molenaar, "Port and Coastal States," dalam Donald Rothwell, The Oxford Handbook of the Law of the Sea, Oxford: Oxford University Press, 2015.
Erik Jaap Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, The Hague: Kluwer Law International, 1998.
Hazmi Rusli, R. Dremliuga, and Wan I. Talaat, “Legal Framework on the Marine Environment Protection of Straits Used for International Navigation: Has It Been Effective in the Straits of Malacca and Singapore?”, dalam Eric Yong Joong Lee (ed), ASEAN International Law, Singapore: Springer Nature Singapore, 2021.
Mary George, An Alternate Regime of Liability and Compensation for Oil Pollution from Tankers in The Straits of Malacca and Singapore, A Doctorate Thesis, Sydney: Faculty of Law, University Of Sydney, 2000
Patricia Birnie (et al.), International Law and The Environment 3rd edition, Oxford: Oxford University Press, 2009.
R. Michael M’Gonigle, and Mark W. Zacher, Pollution, Politics, and International Law, Berkeley: University of California Press, 1979.
Other Documents
Alan E. Boyle, “Marine Pollution under the Law of the Sea Convention”, The American Journal of International Law, Vol. 79, No. 2, 1985.
Alexeeff GV, Faust JB (et.al), “A Screening Method for Assessing Cumulative Impacts”, International Journal of Environmental Research and Public Health, Vol. 9 Issue 2, 2012.
Arron N. Honniball, “Vessel-Source Marine Pollution and the Non- Suspension of Coastal State or Port State Proceedings: Pinpointing Flag States of Repeat Disregard in Article 228 of UNCLOS?”,
Baven Marten, "The enforcement of shipping standards under UNCLOS," WMU Journal of Maritime Affairs, Volume 10, 2011.
Case C-15/17: Judgment of the Court (Third Chamber) of 11 July 2018 (request for a preliminary ruling from the Korkein oikeus — Finland) — Bosphorus Queen Shipping Ltd Corp. v Rajavartiolaitos,
Daniel Bodansky, "Protecting the Marine Environment from Vessel-Source Pollution: UNCLOS III and Beyond," Ecology Law Quarterly, Vol. 18, 1991.
David M. Dzidzornu, “Four Principles in Marine Environment Protection: A Comparative Analysis," Ocean Development & International Law, Volume 29, Issue 2, 1998.
Gonzalo Caballero and David Soto-Oñate, “Environmental crime and judicial rectification of the Prestige oil spill: The polluter pays”, Marine Policy, Vol. 84, 2017.
Ho Sam Bang, “Port State Jurisdiction and Article 218 of the UN Convention on the Law of Sea”, Journal of Maritime Law & Commerce, Vol. 40, No. 2, 2009.
I. A. Shearer, “Problems of Jurisdiction and Law Enforcement against Delinquent Vessels”, International and Comparative Law Quarterly, Vol. 35, No. 2, 1986,
Jiang Jiadong and Jiang Wei, "Port State Responsibility for Combating Vessel-Source Pollution: Enforcement and Safeguard Mechanisms," China Oceans Law Review, Vol. 2016 No. 1, 2016.
Jose Juste Ruiz and Valentín Bou Franch, “After the Prestige Oil Spill: Measures Taken by Spain, in an Evolving Legal Framework,” in Spanish Yearbook of International Law Online · January 2004.
J. Peter A. Bernhardt, "A schematic analysis of vessel-source pollution: prescriptive and enforcement regimes in the law of the sea conference." Virginia Journal of International Law, Volume 20, 1979.
Lan Ngoc Nguyen, “Coastal States Rights and Obligations under the Law of the Sea," in The Development of the Law of the Sea by UNCLOS Dispute Settlement Bodies, Cambridge University Press; 2023.
Lan Ngoc Nguyen, "Expanding the Environmental Regulatory Scope of UNCLOS Through the Rule of Reference: Potentials and Limits," Ocean Development & International Law, volume 52, issue 4, 2021.
McDougal and Myres Smith, The Public Order of the Oceans: A Contemporary International Law of the Sea, New Haven: Yale University Press, 1962.
Ricardo, “Evaluation of Directive 2005/35/EC on ship-source pollution”, Directorate-General for Mobility and Transport Maritime Safety European Commission, 2023.
Robert Rienow, The Test of the Nationality of a Merchant Vessel, New York Chichester, West Sussex: Columbia University Press, 1937.
Sophia Kopela, "Port-State Jurisdiction, Extraterritoriality, and the Protection of Global Commons," Ocean Development & International Law, Vol. 47 No. 2, 2016.
Ted L. McDorman, "Regional Port State Control Agreements: Some Issues of International Law," Ocean and Coastal Law Journal, Vol. 5, No. 2, 2000
Theodore Okonkwo, “International Maritime Legal Regime and The Escalation Of Flags Of Convenience Practices”, International Journal of Law, Volume 4 Issue 1, 2018.
UN Doc A/59/63 5 March 2004, United Nations General Assembly, Oceans and the law of the sea, Consultative Group on Flag State Implementation Report of the Secretary-General, available at
UN Doc. A/CONF.62/WP.8/REV.1/PART III (1976), Art. 38, at. 179-180,
Virginie Terrie, "Are "Black Tides" Inevitable?" Coventry Law Journal, Vol. 6, No. 2, 2001.
Yaodong Yu, Yue Zhao & Yen-Chiang Chang, "Challenges to the Primary Jurisdiction of Flag States Over Ships," Ocean Development & International Law, vol. 49, Issue 1, 2018.
Zacharias L. Kapsis, “The Prescriptive and Enforcement Jurisdiction of A Coastal State In Relation To Ship Source Pollution Occurs In Its Various Maritime Zones, Under The United Nations Convention On The Law Of The Sea And The Customary International Law," International Journal of Advanced Research, Vol. 8, Issue 11, 2020
Zhang Xianglan and Ye Quan, “Coastal State Prescriptive Jurisdiction over Pollution from Ships within Its Exclusive Economic Zone," Contemporary Law Review, No. 3, 2013.
2023 Joint NSN-OTSOPA Seminar on Maritime Environmental Crimes, Recommendation, available at
Legal Documents
Basel Convention on the Control of Transboundary Movements of Wastes and their Disposal, 1991
Convention on the Continental Shelf, 1958
Convention on the High Seas, 1958
International Convention for the Prevention of Pollution from Ships, 1973 and, Protocol of 1978, And Protocol of 1998
International Convention on Civil Liability for Oil Pollution Damage, 1969
International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971
International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969
The United Nations Convention on the Law of the Sea, 1982