BÉNÉDICTE SAGE- FULLER, FACULTY OF LAW, UNIVERSITY COLLEGE CORK, 25 APRIL 2013 LAW AND ENVIRONMENT CONFERENCE How can coastal States protect their environment.

BÉNÉDICTE SAGE-FULLER,

FACULTY OF LAW, UNIVERSITY

COLLEGE CORK, 25 APRIL 2013

LAW AND ENVIRONMENT CONFERENCE

How can coastal States protect their environment from

accidental ship-source pollution?A Jurisprudential Note

High Risk Vessels: a Recurring Problem

Erika, December 1999, 30 miles off Brittany Coast. Princess Eva incident, 2003, Donegal. MV Pacific Adventurer, 2009, Queensland. Shen Neng 1, Gladstone, ran aground Douglas Shoal in GBR,

April 2010. TK Bremen, December 2011, Lorient/Etel. CMA-CGM Normandie, Singapore, March 2011. MSC Flaminia, July-September 2012, Atlantic Ocean/Ireland. Pacific Pintail and Pacific Egret, 2013, France-Japan.Þ Yet UNCLOS limits the possibilities of action on the part of

coastal States.Þ Requirements of evidence of violations of international standardsÞ Article 221 requires a “maritime casualty” to have occurred

before coastal States acquire the “right” to intervene.

Shen Neng 1

Erika

Without a Definite Solution

Traditional approach in the Law of the Sea, since 1609 in Grotius’ The Free Sea: ‘By the law of nations, navigation is free for any to whomsoever.’

Freedom of navigation: freedom of the high seas, freedom of innocent passage, freedom of transit passage.

Coastal States operate a delicate balance, legally not entitled to interfere unless in case of evidenced violation of standards or maritime casualty.

Flag States’ Reluctance

Australian example of the Torres Strait/ GBR compulsory pilotage requirement: direct opposition at IMO.

Recent collective manifestation of opposition at UN by Caribbean States to passage of ships carrying nuclear cargo – literally ignored by France and the UK.

Direct personal encounter in an EU-funded project where French and Norwegian public institutions (Institut Français de Navigation, Norwegian Maritime Directorate) participated in HRV research, but eventually distanced themselves from the findings of the project (separate declaration annexed to the Final Public Report, tensions).

Current Coastal States Powers

Request informationBoardDetainRegulate innocent passageDeny innocent passageIntervention but only upon occurrence of a maritime casualtyCooperate with flag States to set up VTS, Mandatory Ship

Reporting, Ship Routeing Measures, Particularly Sensitive Sea Areas, Traffic Separate Schemes.

Þ But in practice, these powers are not easily applicable. They depend on the availability of evidence that a violation of shipping safety and environmental standards has occurred, or occurrence of a maritime casualty.

High Risk Vessels: Definition

“Vessels that may cause a threat to their crew, their cargo, the environment, the interests of coastal States through any combination of circumstances, such as structure or mechanical faults to the ship, nature of the cargo, inadequate crewing, severe weather conditions, proximity to navigational hazard regions and regions of environmental sensitivity, density of the surrounding traffic” (EMBARC, 2005).

“Risks are caused by the design, construction and use of a vessel, and they may be aggravated by weather conditions, heavy traffic, and specific cargo to a level that is considered too high...the maintenance of the vessel as well as the competence of the crew are major issues affecting the risk of a vessel. Under certain circumstances the change of ownership or the flag may also constitute an indication of additional risk”. (MARNIS, 2008).

High Risk Vessels Criteria

In UNCLOS, the balance of powers between coastal and flag States is defined and operated on the basis of technical criteria, Generally Accepted International Rules and Standards, and Applicable International Rules and Standards (GAIRS/AIRS: articles 197, 201, 211, 218, 219, 220, 226 and 228).

GAIRS and AIRS are the minimum technical standards of safety and environmental protection that the international community expects to be applied by all commercial ships: they are rationally believed to be good for shipping.

The point is that they are widely supported by States as they are objectively, and to the best of scientific knowledge, believed to be good for the regulation of international relations in the shipping sector.

Interdisciplinary Approach to the Problem

The risk to coastal States posed by HRV is defined with reference to standards intrinsic to vessels, and external standards, relating to the environmental conditions (including sea state, weather, environmental sensitivity).

The ship-safety and environmental standards can be found in the Port State Control standards, now accepted by 131 States (through 9 PSC Agreements).

These standards in effect constitute the GAIRS and AIRS of UNCLOS.

All based on international conventions drafted, negotiated and adopted under IMO’s auspices.

All applicable to all ships, arguably regardless of their conventional status.

Other Standards to Identify High Risk Vessels

What are the risks to its society posed by HRVs that the coastal State is prepared to accept? (ecological, socio-economic, environmental risks).

Those risks are very different from what they were 500 years ago, and we know a lot about them.

The assessment of the risk requires an interdisciplinary approach: ship-safety and environmental standards but also ecological, biological, oceanographic, sociological, economic standards.

Interdisciplinary collaboration essential for the disciplined acquisition of knowledge about the coastal and marine environment and how it is affected by accidental ship-source pollution.

Consistent research that is attentive to all aspects of environmental protection and its impact on human well-being and flourishing (socio-economic and cultural in particular).

HRV and Environmental Research

Þ UNCLOS itself requires the acquisition and sharing of knowledge about the marine and coastal environment:

- Cooperation to obtain scientific information (article 201)- Cooperation to set rules, standards, practices and procedures

(article 197) - Carrying out scientific studies (article 200)- Notification (article 198)- Contingencies plans (article 199)- EIA (articles 204-206)Þ The unprecedented development of International Environmental

Law is linked to the work done in environmental research.Þ Regional initiatives and conventions specifically mandate marine

and coastal research. Þ Ecosystem approach and area-based management are the result

of such research.

PSC Ship Safety and Environmental Standards

Paris

MOU

Tokyo

MOU

Indian

Ocean

MOU

Viñar Mar

MOU

Mediter

ranean

MOU

Black Sea

MOU

CaribbeanM

ou

Abuja

MOU

Riyadh

MOU

Load Lines

ConventionX X X X X X X X X

Load Lines

ProtocolX X X X X

SOLAS

ConventionX X X X X X X X X

SOLAS

Protocol

1978

X X X X X X

SOLAS

Protocol

1988

X X X X X x

MARPOL

73/78X X X X X X X X X

STCW

ConventionX X X X X X X X X

COLREG

72

Convention

X X X X X X X X X

Port State Control Agreements’ 131 Parties

AGREEMENT STATE PARTIES (as of 15 December 2012)

Paris Memorandum of

Understanding

(2nd December 1980)

Belgium, Bulgaria, Canada, Croatia, Cyprus, Denmark, Estonia, Finland, France, Germany,

Greece, Iceland, Ireland, Italy, Latvia, Lithuania, Malta, the Netherlands, Norway, Poland,

Portugal, Romania, Russian Federation, Slovenia, Spain, Sweden, the United Kingdom of Great

Britain and Northern Ireland

Tokyo Memorandum of

Understanding

(1st December 1993)

Australia, Canada, Chile, China, Fiji, Hong-Kong China, Indonesia, Japan, Republic of Korea,

Malaysia, New Zealand, Papua New Guinea, Philippines, Russian Federation, Singapore,

Thailand, Vanuatu, Vietnam.

Vina del Mar Memorandum of

Understanding (5th November 1992)

Argentina, Bolivia, Brazil, Chile, Colombia, Cuba, Ecuador, Honduras, Mexico, Panama, Peru,

Uruguay, Venezuela

Indian Memorandum of

Understanding (5th June 1998)

Australia, Bangladesh, Djibouti, Eritrea, France (La Réunion Island) India, Iran, Kenya, Maldives,

Mauritius, Mozambique, Myanmar, Oman, Seychelles, South Africa, Sri Lanka, Sudan, Tanzania,

Union of Comoros, Yemen

Mediterranean Memorandum of

Understanding

(11th July 1997)

Algeria, Cyprus, Egypt, Israel, Jordan, Lebanon, Malta, Morocco, Tunisia, Turkey, Palestinian

Authority

Caribbean Memorandum of

Understanding

(9th February 1996)

Antigua and Barbuda, Aruba, The Bahamas, Barbados, Belize, The Cayman Islands, Cuba, Caraçao,

Grenada, Guyana, Jamaica, The Netherlands, St Christopher and Nevis, Suriname, Trinidad and

Tobago.

Abuja Memorandum of

Understanding (22nd October

1999)

South Africa, Angola, Benin, Cameroon, Cape Verde, Congo, Côte d’Ivoire, Democratic Republic of

the Congo, Equatorial Guinea, Gabon, Ghana, Guinea Conakry, Guinea Bissau, Liberia, Mauritania,

Nigeria, Sao Tome and Principe, Sierra Leone, Senegal, Togo.

Black Sea Memorandum of

Understanding (1st April 2000)Bulgaria, Romania, Georgia, Russian Federation, Turkey and Ukraine.

GCC Memorandum of

Understanding (30th June 2004,

MoU)(Arab States of the Gulf)

Kingdom of Bahrain, State of Kuwait, Sultanate of Oman, State of Qatar, United Arab Emirates and

Kingdom of Saudi Arabia.

Selected Examples of Conventional and Institutional Marine and Coastal

Research

Antarctic Treaty System article 3(2) of

the Madrid Environmental

Protection Protocol.

UNEP Regional Seas Programme and Regional Seas Action Plan:

environmental assessment, legislation and institutional arrangement. 10 regional conventions + 3 regions where the Action Plan applies w/o

convention.

Convention on Biological Diversity: obligations exchange of information

(article 17) and technical and scientific cooperation (article 18) to

achieve in-situ conservation of ecosystems (article 2). Set up of the

Subsidiary Body on Scientific, Technical and Technological Advice

(SBSTTA). Jakarta Mandate on Marine and Coastal Biological Diversity.

UNEP Global Programme of Action for the Protection of the Marine Environment from Land-Based

Activities: “The only global action programme that addresses the

interlinkages between the freshwater and coastal

environments” (2007-2011 Guidance for Implementation adopted in 2006,

Beijing).

HELCOM: “The Baltic Sea is one of the most studied areas of the

world” (Birnie and Boyle). 1993 Joint Comprehensive

Environmental Action Programme (JCP) to comprehensively study the state of the Baltic Sea Area from

all sources of environmental degradation. 2003 Ecosystem

Approach (Bremen Declaration).

OSPAR: Annex V, obligation to collect

scientific information on the effects of

identified activities on ecosystems (article 3)

The Making of the Rule of the Law in International Relations

Many initiatives converge to give coastal States as much power as possible without crossing the “sacrosanct line of flag-State jurisdiction” in the absence of evidence of violations or of a “maritime casualty”... YET...

Unprecedented development of Marine Environmental Law since the 1972 Stockholm Declaration.

Hundreds of international and regional conventions, initiatives, programmes, declarations, programmes of scientific research, disciplined accumulation of knowledge.

Mostly all incorporating a version of the precautionary principle, which, let us remind ourselves, is conceptually designed to deal with RISK, and includes the requirement to make decision on the basis of best available scientific knowledge, even in situations of scientific uncertainty.

What can be discerned in all this is a willingness to develop law and policy on the basis of practical and rational knowledge.

The Making of the Rule of Law inInternational Relations

What this further shows is that coastal States consider that it is good that their relationships should be regulated by the common respect for shared societal values.

Societal values are clearly identified as the reason for these many environmental protection initiatives.

Moreover, these values are supported by the various research programmes for the protection of the marine environment. New information, new data is brought to light everyday about the state of the environment, about ecosystems, about biological interdependency relationships, etc.

Þ The societal values protected by States are confirmed in their very existence by the scientific evidence about the importance of the marine environment uncovered by environmental scientific research.

Examples of Societal Values Shared by Coastal and Maritime States

Convention on Biological Diversity: - COP 2003: “The objectives of management of land, water and living resources are a matter of societal choice”. - COP 2008: “the ecosystem approach remains a useful normative framework for bringing together social, economic, cultural and environmental values”- Addis Ababa Principle 10: policies to take account of “intrinsic and other non-economic values of biological diversity”

HELCOM : - 2004 Baltic Sea Action Plan, Ecological Vision: “Healthy Baltic Sea environment, with diverse biological components functioning in balance, resulting in a good ecological status and supporting a wide range of sustainable human economic and social activities”.- The “socio-economic value [of the Baltic Sea] interpreted in the widest possible sense (including social values)”.

Global Environmental Action Programme

addresses “problems created by environmental

degradation relating to...the economic and social, and including cultural, values of the

coastal and marine environment”

OSPAR 2010 Bergen Ministerial Statement: “we also acknowledge the intrinsic value of the North-East Atlantic and its role as a natural asset that contributes to our well-being far beyond material benefits. We Stress the economic and social value of marine ecosystem goods and services provided by the North-East Atlantic.”

The Making of the Rule of Law inInternational Relations

The will of States is the expression of what they rationally believe to be good to regulate their relations.

Their consent to create new norms of environmental protection is rational, being supported by scientific evidence.

Of course the state of scientific knowledge is constantly evolving and there are many uncertainties, but there is also a lot of certainty, a lot of elements that we know and can prove.

The core of marine environmental law is therefore based on States’ consent, like any other part of Public International Law, but this consent is itself grounded in a rational choice to protect real societal values.

International Environmental Law and Law of the Sea

Objective and scientifically proven criteria for the identification of High Risk Vessels can be rationally justified to give powers to coastal States to intervene towards foreign flagged ships.

Instead of the blunt opposition between coastal and flag States, we could envisage a goal-oriented cooperation.

It is already happening at a micro level, where scientific evidence is accepted by the law to justify coastal/port States action towards foreign ships suspected of having violated international discharge standards.

Evolution of Law of the Sea

This approach is also happening in the area of maritime security, where the PSI allows extensive coastal intervention when objective issues of terrorism are suspected or proven. This is a clear example of societal values being protected even when it means interfering with century-established freedoms of the seas.

Þ Philosophically, therefore, the move is entirely rational.

Þ The matter becomes one of practical rationality.

What can coastal States do...?

Continue to be actively involved in inter-disciplinary scientific research about the marine and coastal environment.

Continue to acquire systematic knowledge.Continue to cooperate at regional and global level. Declare openly the value that their coastal and

marine environment represents for them: socially, economically, culturally.

Þ All this strengthens the argument for rational intervention towards foreign flagged ships if and when the need arises.

Amoco Cadiz