Maritime Safety and Environmental Protection in Europe: a role for international courts and tribunals? Ph. Gautier

1
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

2
Environmental Cases

• 1956 Arbitration Lake Lanoux (France v. Spain)
• 1993 ICJ - Gabcíkovo-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)

3
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.

4
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

5
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 (...).

6
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 Chiles exclusive economic zone

• On behalf of the European Community
• ()
• (e) whether the Chilean Decree 598 which purports
  to apply Chiles
• 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

7
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. (...)

8
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.

9
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

10

• 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.

11
THE GRAND PRINCE CASE

• Belize vs. France
• Prompt release
• Judgment of 20 April 2001

12

• 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.

13
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.

14
(No Transcript)
15
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.

16
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.

17
Southern Bluefin Tuna (New Zealand v. Japan
Australia v. Japan), Provisional Measures (1999)
18
THE MOX PLANT CASE

• Ireland vs. United Kingdom
• Provisional measures (ITLOS)
• Annex VII arbitral tribunal

19
THE STRAITS OF JOHOR CASE

• Malaysia vs. Singapore
• Provisional measures
• Order of 8 October 2003

20
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.

21

• 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.

22
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.

23
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

24
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. (...)

25
... 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

26
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. (...)

27
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

28
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.

29
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 (Intertanko e.a. (Case
  C-308/06) , para. 42)

30
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.
• ()

31
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 1972 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
  directives legality in the light of the
  Convention.

32
Marpol 73/78

• Legal situation of member States vis-à-vis
  Marpol?
• Customary law
• Art. 220 and its effect on the UE

33
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.
  (...)

34
Intertanko e.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 treatys 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 ships 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.

35
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

36
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.

37
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

38
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).

39
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 (...).

40
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 2007 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

41
Conclusions

• - Contribution of Part XV
• - comprehensive mechanism
• - jurisprudence
• Role of settlement of dispute mechanisms included
  in other conventions (interpretation)
• Role of ECJ (Validity/interpretation/direct
  applicability)