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Maritime Safety and Environmental Protection in Europe: a role for international courts and tribunals?Ph. Gautier • UNCLOS (part XV) • Other conventions • European Court of Justice
Environmental Cases • 1956 Arbitration – Lake Lanoux (France v. Spain) • 1993 ICJ - Gabčíkovo-Nagymaros Project (Hungary/Slovakia) • 1995 ICJ - Fisheries Jurisdiction (Spain v. Canada) • 1999 - ITLOS - Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures - Annex VII Arbitration - Southern Bluefin Tuna Case (New Zealand and Australia v. Japan) • 2000 ITLOS - Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community) • 2001 - ITLOS - The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures - Annex VII Arbitration - MOX Plant Case (Ireland v. United Kingdom) - OSPAR Arbitration - MOX (Ireland v. United Kingdom) • 2003 - ITLOS - Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures - Annex VII Arbitration - Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore) - Arbitration - Iron Rhine (Belgium v. Netherlands) • 2006 ICJ - Pulp Mills on the River Uruguay (Argentina v. Uruguay) • 2008 ICJ - Aerial Herbicide Spraying (Ecuador v. Colombia) • 2010 - Annex VII Arbitration - Marine Protected Area around the Chagos Archipelago (Mauritius v. United Kingdom) - ICJ - Whaling in the Antarctic (Australia v. Japan) • 2011 ICJ - Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica)
Article 287Choice of procedure 1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention: (a) the International Tribunal for the Law of the Sea established in accordance with Annex VI; (b) the International Court of Justice; (c) an arbitral tribunal constituted in accordance with Annex VII; (d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein. (…) 3. A State Party, which is a party to a dispute not covered by a declaration in force, shall be deemed to have accepted arbitration in accordance with Annex VII.
Limitations and exceptions • Article 297 (limitations): certain disputes relating to scientific research and fisheries in the EEZ • Article 298 (optional exceptions): disputes relating to maritime delimitation, military activities, and in respect of which the United Nations Security Council is exercising its functions under the Charter
Mox Case ECJ (2006) C-459/03 111 . Thus, with regard to the head of complaint alleging failure to meet the obligation to carry out a proper assessment of the environmental impact of all of the activities associated with the MOX plant on the marine environment of the Irish Sea, based on Article 206 of the Convention, it must be stated that this matter is the subject of Directive 85/337 (...) 114 The same observation also holds true for the complaint which Ireland bases on Articles 192, 193, 194, 207, 211 and 213 of the Convention, in so far as that complaint relates to the obligation to take the measures necessary to prevent, reduce and control pollution in the Irish Sea. 117 Furthermore, with regard to the complaint derived from Articles 123 and 197 of the Convention concerning the lack of cooperation on the part of the United Kingdom and, in particular, its refusal to provide Ireland with certain information, such as the full version of the PA report, it must be held that the provision of information of this kind comes within the scope of Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment (...).
Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community) On behalf of Chile:(a) whether the European Community has complied with its obligations under theConvention, especially articles 116 to 119 thereof, to ensure conservation ofswordfish, in the fishing activities undertaken by vessels flying the flag of any of itsmember States in the high seas adjacent to Chile’s exclusive economic zone; On behalf of the European Community: (…) (e) whether the Chilean Decree 598 which purports to apply Chile’s Unilateral conservation measures relating to swordfish on the high seas is in breach of, Inter alia, articles 87, 89 and 116 to 119 of the Convention;
Annex IX, art. 5 1. The instrument of formal confirmation or of accession of an international organization shall contain a declaration specifying the matters governed by this Convention in respect of which competence has been transferred to the organization by its member States which are Parties to this Convention. 3. States Parties which are member States of an international organization which is a Party to this Convention shall be presumed to have competence over all matters governed by this Convention in respect of which transfers of competence to the organization have not been specifically declared, notified or communicated by those States under this article. 5. Any State Party may request an international organization and its member States which are States Parties to provide Information as to which, as between the organization and its member States, has competence in respect of any specific question which has arisen. The organization and the member States concerned shall provide this information within a reasonable time. (...)
Annex IX, art. 6 2. Any State Party may request an international organization or its member States which are States Parties for information as to who has responsibility in respect of any specific matter. The organization and the member States concerned shall provide this information. Failure to provide this information within a reasonable time or the provision of contradictory information shall result in joint and several liability.
Compulsory jurisdiction of the Tribunal • Prompt release (Convention, article 292) • Provisional measures (Convention, article 290, paragraph 5) • Disputes concerning deep seabed area submitted to the Seabed disputes Chamber under article 187 of the Convention
UNCLOS, art. 73 Enforcement of laws and regulations of the coastal State 1. The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention. 2. Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security. […]
THE “GRAND PRINCE” CASE • Belize vs. France • Prompt release • Judgment of 20 April 2001
Article 226 (Investigation of foreign vessels) 1. (a) States shall not delay a foreign vessel longer than is essential for purposes of the investigations provided for in articles 216, 218 and 220. […] (b) If the investigation indicates a violation of applicable laws and regulations or international rules and standards for the protection and preservation of the marine environment, release shall be made promptly subject to reasonable procedures such as bonding or other appropriate financial security. (c) Without prejudice to applicable international rules and standards relating to the seaworthiness of vessels, the release of a vessel may, whenever it would present an unreasonable threat of damage to the marine environment, be refused or made conditional upon proceeding to the nearest appropriate repair yard. Where release has been refused or made conditional, the flag State of the vessel must be promptly notified, and may seek release of the vessel in accordance with Part XV.
Article 220Enforcement by coastal States 6. Where there is clear objective evidence that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation referred to in paragraph 3 resulting in a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal State, or to any resources of its territorial sea or exclusive economic zone, that State may, subject to section 7, provided that the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws. 7. Notwithstanding the provisions of paragraph 6, whenever appropriate procedures have been established, either through the competent international organization or as otherwise agreed, whereby compliance with requirements for bonding or other appropriate financial security has been assured, the coastal State if bound by such procedures shall allow the vessel to proceed.
Obligations of flag States Article 94 (3): “ Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to: (a) the construction, equipment and seaworthiness of ships; (b) the manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments; (…) ” Article 217 (2): “States shall, in particular, take appropriate measures in order to ensure that vessels flying their flag or of their registry are prohibited from sailing, until they can proceed to sea in compliance with the requirements of the international rules and standards referred to in paragraph 1, including requirements in respect of design, construction, equipment and manning of vessels”.
Provisional measures(article 290) • 1. If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction … the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision. • 5. Pending the constitution of an arbitral tribunal to which a dispute is being submitted …, any court or tribunal agreed upon by the parties or, failing such agreement within two weeks from the date of the request for provisional measures, the International Tribunal for the Law of the Sea …may prescribe, modify or revoke provisional measures in accordance with this article if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires. …
Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional Measures (1999)
THE MOX PLANT CASE • Ireland vs. United Kingdom • Provisional measures (ITLOS) • Annex VII arbitral tribunal
THE STRAITS OF JOHOR CASE • Malaysia vs. Singapore • Provisional measures • Order of 8 October 2003
MOX Plant, Ireland v UK (2001) THE TRIBUNAL, 1. Unanimously, Prescribes, pending a decision by the Annex VII arbitral tribunal, the following provisional measure under article 290, paragraph 5, of the Convention: Ireland and the United Kingdom shall cooperate and shall, for this purpose, enter into consultations forthwith in order to: (a) exchange further information with regard to possible consequences for the Irish Sea arising out of the commissioning of the MOX plant; (b) monitor risks or the effects of the operation of the MOX plant for the Irish Sea; (c) devise, as appropriate, measures to prevent pollution of the marine environment which might result from the operation of the MOX plant.
Disputes concerning other agreements (part XV) • Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas; 24 November 1993; • Straddling Fish Stocks Agreement; 4 August 1995; • 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972; 7 November 1996; • Framework Agreement for the Conservation of the Living Marine Resources on the High Seas of the South-Eastern Pacific; 14 August 2000; • Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean; 5 September 2000; • Convention on the Conservation and Management of Fishery Resources in the South-East Atlantic Ocean; 20 April 2001; • Convention on the Protection of the Underwater Cultural Heritage; 2 November 2001; • Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries; 18 November 1980, as amended; • IMO Wreck Removal Convention, 2007.
OSPAR, art. 9 Access to information 1. The Contracting Parties shall ensure that their competent authorities are required to make available the information described in paragraph 2 of this Article to any natural or legal person, in response to any reasonable request, without that person's having to prove an interest, without unreasonable charges, as soon as possible and at the latest within two months. 2. The information referred to in paragraph 1 of this Article is any available information in written, visual, aural or data-base form on the state of the maritime area, on activities or measures adversely affecting or likely to affect it and on activities or measures introduced in accordance with the Convention. 3. The provisions of this Article shall not affect the right of Contracting Parties, in accordance with their national legal systems and applicable international regulations, to provide for a request for such information to be refused where it affects: (a) the confidentiality of the proceedings of public authorities, international relations and national defence; (...) 4. The reasons for a refusal to provide the information requested must be given.
OSPAR arbitration:« (A) Estimated annual production capacity of the MOX facility; (B) Time taken to reach this capacity; (C) Sales volumes; (D) Probability of achieving higher sales volumes; (E) Probability of being able to win contracts for recycling fuel in ‘‘significant quantities’’; (F) Estimated sales demand; (G) Percentage ofplutonium already on site; (H) Maximum throughput figures; (I) Life span of the MOX facility; (J) Number of employees; (K) Price of MOX fuel; (L) Whether, and to what extent, there are firm contracts to purchase MOX from Sellafield; (M) Arrangements for transport of plutonium to, and MOX from,Sellafield; (N) Likely number of such transports » ITLOS: ‘‘Initial and Non-Exhaustive List of Questions put by Ireland to theUnited Kingdom in the context of the Provisional Measure prescribed by the International Tribunal in its Order of 3 December 2001” - Projected operational life of the MOX plant • Transport of nuclear fuel from and to the Mox plant
OSPAR Art. 32 Settlement of disputes6. (a) The arbitral tribunal shall decide according to the rules of international law and, in particular, those of the Convention. UNCLOS Art. 293 Applicable law 1. A court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention. (...)
“... The first duty of the tribunal is to apply the OSPAR Convention. An international tribunal ... Will also apply customary international law and general principles unless and to the extent that the Parties have created a lex specialis. Even then, it must defer to a relevant” “Interpreting Article 32 (6) (a) otherwise would transform it into an unqualified and Comprehensive jurisdictional regime, in which there would be no limit ratione materiae to the jurisdiction of a tribunal established under the OSPAR Convention”
Southern Bluefin Tuna Cases (Australia and New Zealand v. Japan) Convention for the Conservation of Southern Bluefin Tuna (1993) Article 16 : “1. If any dispute arises between two or more of the Parties concerning the interpretation or implementation of this Convention, those Parties shall consult among themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice. 2. Any dispute of this character not so resolved shall, with the consent in each case of all parties to the dispute, be referred for settlement to the International Court of Justice or to arbitration; but failure to reach agreement on reference to the International Court of Justice or to arbitration shall not absolve parties to the dispute from the responsibility of continuing to seek to resolve it by any of the various peaceful means referred to in paragraph 1 above. (...)”
SBT arbitration “To find that, in this case, there is a dispute actually arising under UNCLOS which is distinct from the dispute that arose under the CCSBT would be artificial.” “Article 16 of the 1993 Convention as an agreement by the Parties to seek settlement of the instant dispute by peaceful means of their own choice”
Article 281Procedure where no settlement has been reached by the parties 1. If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure. 2. If the parties have also agreed on a time‑limit, paragraph 1 applies only upon the expiration of that time‑limit.
European Court and potential conflicts between international law and European law It is clear from Article 300(7) EC that the Community institutions are bound by agreements concluded by the Community and, consequently, that those agreements have primacy over secondary Community legislation (Intertankoe.a. (Case C-308/06) , para. 42)
Article 230 1. Monetary penalties only may be imposed with respect to violations of national laws and regulations or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment, committed by foreign vessels beyond the territorial sea. 2. Monetary penalties only may be imposed with respect to violations of national laws and regulations or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment, committed by foreign vessels in the territorial sea, except in the case of a wilful and serious act of pollution in the territorial sea. (…)
Marpol 73/78 44 First, the Community must be bound by those rules (see Joined Cases 21/72 to 24/72 International Fruit Company and Others  ECR 1219, paragraph 7). (…) 50 Since the Community is not bound by Marpol 73/78, the mere fact that Directive 2005/35 has the objective of incorporating certain rules set out in that Convention into Community law is likewise not sufficient for it to be incumbent upon the Court to review the directive’s legality in the light of the Convention.
Marpol 73/78 • Legal situation of member States vis-à-vis Marpol? • Customary law • Art. 220 and its effect on the UE
Article 220 Enforcement by coastal States 1. When a vessel is voluntarily within a port or at an off‑shore terminal of a State, that State may, subject to section 7, institute proceedings in respect of any violation of its laws and regulations adopted in accordance with this Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels when the violation has occurred within the territorial sea or the exclusive economic zone of that State. 2. Where there are clear grounds for believing that a vessel navigating in the territorial sea of a State has, during its passage therein, violated laws and regulations of that State adopted in accordance with this Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels, that State, without prejudice to the application of the relevant provisions of Part II, section 3, may undertake physical inspection of the vessel relating to the violation and may, where the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws, subject to the provisions of section 7. (...)
Intertankoe.a. (case C-308/06) 45 Second, the Court can examine the validity of Community legislation in the light of an international treaty only where the nature and the broad logic of the latter do not preclude this and, in addition, the treaty’s provisions appear, as regards their content, to be unconditional and sufficiently precise (…) 64 In those circumstances, it must be found that UNCLOS does not establish rules intended to apply directly and immediately to individuals and to confer upon them rights or freedoms capable of being relied upon against States, irrespective of the attitude of the ship’s flag State. 65 It follows that the nature and the broad logic of UNCLOS prevent the Court from being able to assess the validity of a Community measure in the light of that Convention.
UNCLOS Article 17 Right of innocent passage Subject to this Convention, ships of all States, whether coastal or land‑locked, enjoy the right of innocent passage through the territorial sea. Article 110, paragraph 3 Right of visit 3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained. Article 111, paragraph 8 Right of hot pursuit 8. Where a ship has been stopped or arrested outside the territorial sea in circumstances which do not justify the exercise of the right of hot pursuit, it shall be compensated for any loss or damage that may have been thereby sustained
UNCLOS Article 97 Penal jurisdiction in matters of collision or any other incident of navigation 1. In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. Article 73, paragraph 3 : 3. Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment. Article 230, paragraph 1 1. Monetary penalties only may be imposed with respect to violations of national laws and regulations or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment, committed by foreign vessels beyond the territorial sea.
21 December 2011 - Case C‑366/10 To what extent principles of customary international law and provisions of international treaties may be relied upon in the context of a reference for a preliminary ruling on the validity of European directive 2003/87/CE to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community “(b) the principle of customary international law that no State may validly purport to subject any part of the high seas to its sovereignty;” [Article 89 Invalidity of claims of sovereignty over the high seas No State may validly purport to subject any part of the high seas to its sovereignty.] “(c) the principle of customary international law of freedom to fly over the high seas;” [Article 87 “Freedom of the high seas ...comprises, inter alia, both for coastal and land‑locked States: (1) (b) freedom of overflight;]
Case C‑366/10 104 These three principles are regarded as embodying the current state of customary international maritime and air law and, moreover, they have been respectively codified in Article 1 of the Chicago Convention (see, on the recognition of such a principle, the judgment of the International Court of Justice of 27 June 1986 in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1986, p. 392, paragraph 212), in Article 2 of the Geneva Convention of 29 April 1958 on the High Seas (United Nations Treaty Series, Vol. 450, p. 11) (see also, on the recognition of this principle, the judgment of the Permanent Court of International Justice of 7 September 1927 in the Case of the S.S ‘Lotus’, PCIJ 1927, Series A, No 10, p. 25) and in the third sentence of Article 87(1) of the United Nations Convention on the Law of the Sea, signed in Montego Bay on 10 December 1982, which entered into force on 16 November 1994 and was concluded and approved on behalf of the European Community by Council Decision 98/392/EC of 23 March 1998 (OJ 1998 L 179, p. 1).
Case C‑366/10 110 However, since a principle of customary international law does not have the same degree of precision as a provision of an international agreement, judicial review must necessarily be limited to the question whether, in adopting the act in question, the institutions of the European Union made manifest errors of assessment concerning the conditions for applying those principles (...).
17 January 2012 (Case C‑347/10) Reference for a Preliminary Ruling , Regulation (EC) 1408/71 (Social Security - Worker employed on gas-drilling platform on the continental shelf adjacent to the Netherlands ) 33 It follows from Article 77 of the Convention on the Law of the Sea that the coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. Those rights are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without its express consent. 34 In accordance with Article 80 of the Convention on the Law of the Sea, in conjunction with Article 60 thereof, the coastal State has the exclusive right to construct the artificial islands, installations and structures on the continental shelf, to authorise them and to regulate their construction, operation and use. The coastal State has exclusive jurisdiction over such artificial islands, installations and structures. 35 Since a Member State has sovereignty over the continental shelf adjacent to it — albeit functional and limited sovereignty (see, to that effect, Case C‑111/05 Aktiebolaget NN  ECR I‑2697, paragraph 59) — work carried out on fixed or floating installations positioned on the continental shelf, in the context of the prospecting and/or exploitation of natural resources, is to be regarded as work carried out in the territory of that State for the purposes of applying EU law
Conclusions - Contribution of Part XV - comprehensivemechanism - jurisprudence • Role of settlement of dispute mechanismsincluded in other conventions (interpretation) • Role of ECJ (Validity/interpretation/direct applicability)