How can coastal States protect their
environment from
accidental ship-source pollution?
A Jurisprudential Note
BÉNÉDICTE SAGEFULLER,
FACULTY OF LAW,
UNIVERSITY
COLLEGE CORK,
25 APRIL 2013
LAW AND
ENVIRONMENT
CONFERENCE
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.
 Yet UNCLOS limits the possibilities of action on the part of coastal
States.
 Requirements of evidence of violations of international standards
 Article 221 requires a “maritime casualty” to have occurred before
coastal States acquire the “right” to intervene.
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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 information
Board
Detain
Regulate innocent passage
Deny innocent passage
Intervention but only upon occurrence of a maritime casualty
Cooperate with flag States to set up VTS, Mandatory Ship
Reporting, Ship Routeing Measures, Particularly Sensitive Sea
Areas, Traffic Separate Schemes.
 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.
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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
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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
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coastal State is prepared to accept? (ecological, socioeconomic, 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
 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)
 The unprecedented development of International Environmental
Law is linked to the work done in environmental research.
 Regional initiatives and conventions specifically mandate marine
and coastal research.
 Ecosystem approach and area-based management are the result of
such research.
PSC Ship Safety and Environmental Standards
Load Lines
Convention
Load Lines
Protocol
SOLAS
Convention
Indian
Tokyo
MOU
MOU
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Ocean
MOU
X
Viñar
MOU
X
Mar
Mediter
Paris
ranean
MOU
X
Black
Sea
Caribbean
Abuja
Riyadh
MOU
Mou
MOU
MOU
X
X
X
X
X
X
X
X
X
X
X
x
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
SOLAS
Protocol
X
1978
SOLAS
Protocol
1988
MARPOL
73/78
STCW
Convention
COLREG
72
Convention
Port State Control Agreements’ 131 Parties
AGREEMENT
Paris
STATE PARTIES (as of 15 December 2012)
Memorandum
of
Understanding
Memorandum
Greece, Iceland, Ireland, Italy, Latvia, Lithuania, Malta, the Netherlands, Norway, Poland,
Portugal, Romania, Russian Federation, Slovenia, Spain, Sweden, the United Kingdom of Great
(2nd December 1980)
Tokyo
Belgium, Bulgaria, Canada, Croatia, Cyprus, Denmark, Estonia, Finland, France, Germany,
Britain and Northern Ireland
of
Australia, Canada, Chile, China, Fiji, Hong-Kong China, Indonesia, Japan, Republic of Korea,
Understanding
Malaysia, New Zealand, Papua New Guinea, Philippines, Russian Federation, Singapore,
(1st December 1993)
Thailand, Vanuatu, Vietnam.
Vina
del
Mar
Memorandum
of
Understanding (5th November 1992)
Indian
Memorandum
of
Understanding (5th June 1998)
Mediterranean
Understanding
(11th July 1997)
Memorandum
Argentina, Bolivia, Brazil, Chile, Colombia, Cuba, Ecuador, Honduras, Mexico, Panama, Peru,
Uruguay, Venezuela
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
of
Algeria, Cyprus, Egypt, Israel, Jordan, Lebanon, Malta, Morocco, Tunisia, Turkey, Palestinian
Authority
Caribbean
Memorandum
of
Antigua and Barbuda, Aruba, The Bahamas, Barbados, Belize, The Cayman Islands, Cuba, Caraçao,
Understanding
Grenada, Guyana, Jamaica, The Netherlands, St Christopher and Nevis, Suriname, Trinidad and
(9th February 1996)
Tobago.
Abuja
of
South Africa, Angola, Benin, Cameroon, Cape Verde, Congo, Côte d’Ivoire, Democratic Republic of
October
the Congo, Equatorial Guinea, Gabon, Ghana, Guinea Conakry, Guinea Bissau, Liberia, Mauritania,
Memorandum
Understanding
(22nd
1999)
Black
Nigeria, Sao Tome and Principe, Sierra Leone, Senegal, Togo.
Sea
Memorandum
of
Understanding (1st April 2000)
GCC
Memorandum
of
Understanding (30th June 2004,
MoU)(Arab States of the Gulf)
Bulgaria, Romania, Georgia, Russian Federation, Turkey and Ukraine.
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.
OSPAR: Annex V,
obligation to collect
scientific information on
the effects of identified
activities on ecosystems
(article 3)
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).
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.
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).
The Making of the Rule of the Law
in International Relations
 Many initiatives converge to give coastal States as much power as
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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 in
International 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.
 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 noneconomic values of biological diversity”
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.”
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)”.
The Making of the Rule of Law in
International 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.
Philosophically, therefore, the move is entirely
rational.
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.
 All this strengthens the argument for rational
intervention towards foreign flagged ships if and
when the need arises.
Amoco Cadiz