International Environmental Law Course

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1 1 International Environmental Law Course Professor Hans Chr. Bugge Jurisdiction issues and main international instruments to prevent marine pollution from ships and land based sources I Pollution from ships 1. Introduction. 1.1 General obligations in the UNCLOS The general obligation to prevent marine pollution from all sources (Part XII, section 5 arts ). Art. 211 concerns pollution from vessels. General obligation to establish international rules to prevent and reduce pollution from ships (art. 211 (1)). Generally accepted rules and standards. The International Maritime organization (IMO) as the standard-setting body. IMO is the main rulemaking body, with broad global membership. (However, USA has some national rules, and EU is increasingly developing its own rules mainly based on port state jurisdiction.) 1.2. Special conventions A broad specter of global conventions with protocols. A complex field as it interacts with the general international regulation of shipping, and with complicated issues of international marine insurance. The main idea: harmonization of rules for all international shipping. Aim at both regular operations and accidents. Objectives: prevention of pollution, emergency and repair, compensation for pollution damage (liability). Balance environmental concerns and international shipping interests.

2 2 Create both obligations and rights for the states that are parties. But not all states are parties. The problem of flags of convenience. Much of the rules and regulations have come as the result of serious accidents (1968 Torrey Canyon (UK), 1978 Amoco Cadiz (France), 1989 Exxon Valdez (Alaska, USA), 1999 Erika (France), 2002 Prestige (Spain)). 2. Jurisdiction over pollution from ships main lines in UNCLOS 2.1 Introduction: Detailed rules the Law of the Sea Puzzle Flag state: Starting point: Ships shall sail under the flag of one state only and are subject to its exclusive jurisdiction except according to other special rules (art. 92) Important obligations, such as Shall adopt laws to prevent pollution that at least have the same effect as that of generally accepted rules and standards (art. 211 (2)). Shall enforce general rules of administrative, technical and social matters applicable to their ships (art. 94). Obligation to enforce ( shall ensure compliance ) international rules and standards in the field of pollution applicable to their ships (art. 217) Port state/coastal state Port state is always coastal state and vice versa. But some distinctions as regards the rights over foreign vessels Internal waters and in ports (inside the baseline ): Full jurisdiction as on land territory. May issue such national rules as seen necessary to protect the marine environment.

3 3 Port state has the right to ( may ) undertake investigations, institute proceedings for violation of applicable international rules and standards, also outside internal waters, even on the high seas (art. 218 (1)) - when a vessel is voluntarily within a port. Nuances and details in art. 218 (2-4) Territorial sea (12 nautical miles). Starting point: UNCLOS art 2: The coastal state has full sovereignty in the territorial sea: lawmaking, control and enforcement. But an important exception: ships right to innocent passage in the territorial sea (arts ). Innocent passage: passage not prejudicial to the peace, good order or security of the coastal state (art. 19). Any act of willful and serious pollution is not innocent (art. 19, 2 (h)). Coastal state may issue regulations, including for environmental purposes (art. 21 (1)), - but not rules concerning design, construction, manning and equipment unless in accordance with generally accepted international rules and standards. Se further in particular Article 211 no. 4. Detailed enforcement rules (arts ). For example: right to inspection of a foreign ship if clear grounds to believe that it has violated rules applicable in the territorial waters Exclusive Economic Zone (EEZ) (200 nautical miles). Coastal state jurisdiction on issues for the protection and preservation of the marine environment (art. 56, 1 b) (iii)). Coastal state may issue pollution rules in accordance with generally accepted international rules and standards. See furhter in particular Article 211 no. 5.

4 4 However: generally speaking little restrictions on the freedom of the seas for shipping, as far as enforcement is concerned (see art. 220, in particular 220 (3) and (5)) The High Seas. Basically flag state control (arts. 94, 211(2) and 217). Otherwise freedom of the seas for navigation etc. But port state/coastal state may take action when a ship is voluntarily within a port (Art. 218 no. 1) against violations of applicable international rules and standards, also violations on the high seas. In case of a pollution accident: the 1969 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (later extended to other forms of pollution): Coastal states may take such measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution. (art. 1). 3. Prevention: The 1973/76/92 MARPOL Convention. 3.1 MARPOL: Convention on the Prevention of Marine Pollution from Ships, with annexes. Detailed technical standards related to construction, equipment and technical installations to control pollution, and restrictions on discharge into sea areas. Supplement the enforcement rules in UNCLOS, in particular as regards port state jurisdiction, based on port states right to regulate conditions of entry to internal waters and ports: inspection of MARPOL Certificates in compliance with certificate rules? right and duty to hold back the ship in case of non-compliance inspection to supply evidence of a possible violation elsewhere ( in any place ).

5 5 Europe (in particular after the Erika accident): Paris Memorandum of Understanding : increased port state control and enforcement. Port state enforcement more effective than flag state enforcement (?) Convention on Hazardous and Noxious Substances (HNS). A Convention along the same lines as MARPOL Convention for the Control and Management of Ships ballast Water and Sediments. The problem and the solution. 4. Preparedness, emergency action (Torrey Canyon) Convention on Intervention on the High Seas in Cases of Oil Pollution Casualties (with a 1973 protocol for other substances). Main point: coastal states may take all necessary measures also on the high seas - to prevent, mitigate and eliminate grave and imminent danger to their coastline or related interests (Exxon Valdez) Convention on Oil Pollution Prevention, Response, and Cooperation (OPPRC). 5. Liability for pollution damage. 5.1 The need for international rules on liability for pollution damage. 5.2 The difficult issues of liable subject(s): Who is the polluter? Who shall pay? conditions of liability, and possible exceptions liability with or without limitations?

6 (1969) Convention on Civil Liability for Oil Pollution Damage Obligation of the state parties: to legislate according to the international rules, as flag state. Right of the state parties: to be compensated for pollution damage on the basis of the international rules, as coastal state victim of oil pollution. Apply to oil tankers: ships transporting oil in bulk. The owner of the ship at the time of the accident is strictly liable (art. III no 1). Certain exceptions of force majeure type (art. III no. 2). Other possible actors are explicitly exempted from possible liability (Art. III no. 4), including the charterer (usually, but not necessarily the owner of the transported oil). The cargo owner is not clearly exempted. Limitation of the liability (varying with the ship s size, etc. maximum some 120 mill. USD), unless the owner intentionally or through recklessness has caused the damage (art. V). Liability covers direct and to some extent indirect damage and costs of clean-up. A topic for discussion: Is the Convention really protecting the environment, or protecting the shipping industry? EU has been particularly critical and tried to develop its own rules. Some words on the 2010 Erika case before the French courts. The French oil company Total was found guilty as cargo owner of negligence in chartering Erika for oil transport, and liable for the pollution damage. News 30 March 2010: French oil giant Total on Tuesday lost a bid to overturn a Paris court decision finding it guilty of negligence over a 1999 shipwreck and oil spill off the coast of Brittany.The Paris appeals court confirmed the conviction and a fine of 375,000 euros (500,000 dollars) that was imposed on Total in the 2008 ruling. Total was found guilty of failing to take into account the age of the tanker Erika and of ignoring maintenance problems when it chartered the rusty 25-year-old vessel. The Erika was carrying 30,000 tonnes of heavy fuel oil when it broke in two and sank off the Brittany coast on December 12, 1999, polluting a large stretch of coastline and killing tens of thousands of seabirds.the Paris criminal court had also ordered Total and three other parties in its initial ruling in 2008 to pay 192 million euros in compensation to civil plaintiffs in the case.

7 (1971) Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage. A Fund financed by a small tax levied on the purchase of oil transported by ship (oil companies). Supplement to the shipowner liability, if necessary to cover the costs (the damage exceeds the limit, owner cannot be identified, etc ) Also limited, but the maximum today amounts to some 1 billion USD International Convention on Civil Liability for Bunker Oil Pollution Damage Similar principles as for oil in bulk, but different in details International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS). Similar principles.

8 8 II. Pollution from land-based sources (briefly). This field is dominated by regional seas conventions 1992 OSPAR Convention as a case. Full title: Convention for the Protection of the Marine Environment of the North-East Atlantic: A combination of the earlier Oslo Convention on dumping of waste in the North Sea, and the Paris Convention on marine pollution from land-based sources. Treats: pollution from land-based sources pollution for off-shore installations pollution by dumping and incineration at sea An annex and detailed rules for each of these. Plays a major role in reducing marine pollution by hazardous substances. General obligation: States shall take all possible steps to prevent and eliminate pollution. Principles: the precautionary principle the polluter pays principle latest technological developments and practices Minimum regulation: States can take stricter measures than agreed pursuant to the convention. A typical framework convention: Detailed rules in annexes and subsequent decisions and recommendations: gradual reduction and prohibitions of discharge of various hazardous substances.

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