Precautionary coastal states' jurisdiction

Ocean Development and International Law

Volumn 37, Issue 3-4, 2006, Pages 359-387

  Sage, Bénédicte ^a  

^a UNIVERSITY COLLEGE CORK   (Ireland)

Author keywords

Coastal states; International Maritime Organization; Jurisdictional powers; Precautionary principle

Indexed keywords

COASTAL PROTECTION; COASTAL ZONE; INTERNATIONAL ORGANIZATION; LAW OF THE SEA; LEGAL SYSTEM; PRECAUTIONARY PRINCIPLE;

EID: 33750067392     PISSN: 00908320     EISSN: 15210642     Source Type: Journal    
DOI: 10.1080/00908320600801059     Document Type: Article

References (151)

1. The 1992 Rio Declaration on Environment and Development, 31 I.L.M. 874 (1992).
2. For studies on the meaning and status of the precautionary principle see, P. Birnie and A. Boyle, International Law and the Environment, 2nd ed. (Oxford University Press, 2002), 115-121;
3. D. Freestone, "The Road from Rio: International Environmental Law after the Earth Summit," Journal of Environmental Law 6 (1994): 193;
4. J. Cameron and J. Abouchar, "The Status of the Precautionary Principle in International Law," in eds. D. Freestone and E. Hey, The Precautionary Principle and International Law (The Hague: Kluwer Law International, 1996), 29-52; and
5. O. McIntyre and T. Mosedale, "The Precautionary Principle as a Norm of Customary International Law," Journal of Environmental Law 9, no. 2 (Oxford, 1997): 221.
6. D. Bodansky, "Scientific Uncertainty and the Precautionary Principle," Environment 33, no. 7 (1991): 4.
7. United Nations Convention on the Law of the Sea, 1833 U.N.T.S. 397.
8. For instance, in France, following a recommendation from the Comité Interministériel de la Mer of 28.2.2000, shortly after the Erika disaster, a law was passed designating an ecological protection zone in the Mediterranean on the model of the exclusive economic zone prescribed by UNCLOS, Loi N. 2003-346 sur la creation d'une zone de protection écologique au large des ĉotes du terriroire de la République, JO N. 90 of 16 April 2003, at 6726.
9. The survey was carried out under work package 8 of E.M.B.A.R.C, on file with the author.
10. The legislation includes: Regulation (EC) 417/2002 of the European Parliament and of the Council of 18 February 2002 on the accelerated phasing-in of double hull or equivalent design requirements for single hull oil tankers and repealing Council regulation (EC) 2978/94, OJ L064, 07.03.2002, at 1; Directive 2001/106/EC of the European Parliament and of the Council of 19 December 2001 amending Council Directive 95/21/EC concerning the enforcement, with respect to shipping using Community ports and sailing in the waters under the jurisdiction of the member states, of international standards for ship safety, pollution prevention, and shipboard living and working conditions (port state control), OJ L019, 22.01.2002, at 17; and Directive 2001/25/EC of the European Parliament and of the Council of 4 April 2001 on the minimum level of training of seafarers, OJ L136, 18.05.2001, at 17.
11. Directive 2002/59/EC of the European Parliament and of the Council establishing a Community vessel traffic monitoring and information system and repealing Council directive 93/75/EEC, OJ L208, 05.08.2002, at 1 (hereinafter referred to as the VTMIS Directive).
12. More information on Safe Sea Net, is available at www.emsa.eu.int/ end801.html.
13. The European Commission decided on Dec. 15, 2004, to institute proceedings against France, Belgium, Greece, Italy, the Netherlands, Austria, Finland, and the United Kingdom for failing to implement key provisions of Directive 2002/59/EC on VTMIS, EMSA press release IP/04/ 1488, Dec. 15, 2004.
14. Sirenac and Equasis, available at www.parismou.org.
15. The Web site for the EMSA is at www.emsa.eu.int.
16. "In jurisdictional considerations the territorial sea falls under full coastal authority limited only by the rules of innocent passage." K. Hakapää, Marine Pollution in International Law (Helsinki; Suomalainen Tiedeakatemia, 1981), 183.
17. Jennings and Watts (Eds.), Oppenheim's International Law, 9th ed. (London; Longman, 1992), 615.
18. Articles 17 to 32 of UNCLOS lay down the rules relating to innocent passage. This right had already been codified in the Geneva Convention on the Territorial Sea and Contiguous Zone, 516 U.N.T.S., art. 14 to 23.
19. UNCLOS, art. 25.
20. See Hakapää, supra note 13, at 184-185.
21. This phraseology is discussed below, infra notes 43-48.
22. UNCLOS, art. 25(1).
23. UNCLOS, art. 18.
24. UNCLOS, art. 19.
25. International LawAssociation, Committee on Coastal State Jurisdiction Relating toMarine Pollution, "Final Repor (E. Franckx rapporteur, E. J. Molenaar, assistant rapporteur) in International Law Association, Report of the 69th Conference (London, 2000), 443-500, at 493.
26. See J. Van Dyke, "The Legal Regime Governing Sea Transport of Ultrahazardous Radioactive Materials," Ocean Development and International Law 33 (2002): 78-80, and J. Van Dyke, "Applying the Precautionary Principle to Ocean Shipments of Radioactive Materials," Ocean Development and International Law 27 (1996): 379-397.
27. Routeing of ships, ship reporting and related matters. Results of a safety of navigation assessment conducted for the Torres Strait, submitted by Australia, NAV 50/INF.2, Apr. 2, 2004.
28. More specifically on PSSAs, see subsection below, Particularly Sensitive Sea Areas.
29. Torres Strait Assessment, supra note 24, Annex 1.
30. UNCLOS, art. 37-38.
31. Reports of Sub-Committees, outcome of Nav 50, MEPC 52/10/2, July 30, 2004.
32. IMO Assembly Resolution A.710(17) (1991).
33. Torres Strait PSSA Associated Protective Measure-Compulsory Pilotage, submitted by Australia and Papua New Guinea, LEG 89/15, Aug. 24, 2004, at 2.
34. Ibid., at 1.
35. IMO Legal Committee, 89th Session, LEG 89/16, Nov. 4, 2004.
36. Designation of the Torres Strait as an Extension of the Great Barrier Reef Particularly Sensitive Sea Area, MEPC 53/24/Add.2, July 22, 2005.
37. See further, J. Roberts, "Compulsory Pilotage in International Straits: The Torres Strait PSSA Proposal," Ocean Development and International Lawb 37 (2006): 93-112.
38. UNCLOS, art. 21(1)(f).
39. Convention on the International Regulation for Preventing Collisions at Sea, 1972, 1977 U.K.T.S. 77.
40. UNCLOS, art. 22. For a more detailed discussion, see subsection below, Ships Routeing Measures in Marine Protected Areas.
41. UNCLOS, art. 23.
42. UNCLOS, art. 24.
43. Hakapää, supra note 13, at 195-196, noted that there is a contradiction in this situation. Indeed, this interpretation of Article 220 means that when a ship is in noninnocent passage, a coastal state may expulse it from territorial waters. On the other hand, a ship in innocent passage may be subject to other types of measures which could impair passage more than simply being denied access to territorial waters.
44. E. J. Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (The Hague: Kluwer Law International, 1998), 246.
45. Australia is at the leading edge of many of these technologies. See "Oil Spills in the Australian Marine Environment: Environmental Consequences and Response Technologies," paper presented by the Australian Maritime Safety Authority, Australasian Oil and Gas Conference, 22-23 April 1999, Perth, Western Australia, available at www.amsa.gov.au/Marine Environment Protection/National Plan/Contingency Plans and Management/Research Development and Technology/. A representative of the Australian Maritime Safety Authority (AMSA) indicated that chemical fingerprinting has been used and accepted by the courts as evidence of discharges for many years. Oil spill trajectory modeling is also now accepted by courts and satellite remote sensing has recently been accepted as valid evidence by a court. Information obtained by e-mail from AMSA to the author, Feb. 17, 2005, on file with the author.
46. UNCLOS, art. 21(2).
47. For example, see UNCLOS, art. 21(2).
48. See, for example, UNCLOS, art. 220(1). See, more generally, E. Franckx, "Marine Environment Jurisdictional Issues: Coastal States," in The Stockholm Declaration and Law of the Marine Environment ed.M. Nordquist, J.N.Moore and O. Mahmoudi (The Hague:MArtinus Nijhoff, 2003), 292.
49. Coastal State Jurisdiction Committee, supra note 22, at 475.
50. Ibid., at 482.
51. Ibid., at 487: "By becoming party to the 1982 Convention, States ipso facto accept the legal technique of law making by reference inherent in the very notion of generally accepted international rules and standards."
52. UNCLOS, art. 220(3), (5), and (6).
53. UNCLOS, art. 220(5).
54. UNCLOS, art. 220(6).
55. UNCLOS, art. 220(6).
56. UNCLOS, art. 221(1).
57. UNCLOS, art. 221(2).
58. InternationalConventionRelating to Intervention on the High Seas in Cases ofOil Pollution Damage, 9 I.L.M. 25 (1970). The 1973 Protocol to the Intervention Convention is reprinted in American Journal of International Law 68 (1974): 577.
59. See J. F. Levy, "France and the Right of Intervention on the High Seas," in Proceedings of International Oil Spill Conference (Achieving and Maintaining Preparedness) (Washington DC: American Petroleum Institute, Publication number 4620, 1995), 719-720.
60. International Convention for the Safety of Life at Sea, (SOLAS) 1184 U.N.T.S. 2.
61. UNCLOS, art. 220(5).
62. UNCLOS, art. 220(6).
63. UNCLOS, art. 221(1).
64. See, for example, the "Biological Diversity and Ecosystem Strategadopted by the OSPAR Commission for the Protection of the Marine Environment of the North-East Atlantic, available at the OSPAR Web site, www.ospar.org/Eng/html/welcome.html.
65. See supra notes 43-48.
66. For instance see, A. Boyle, "Further Development of the Law of the Sea Convention: Mechanisms for Change," International and Comparative Law Quarterly 54 (2005): 563.
67. Agenda 21, adopted by the U.N. Conference on Environment and Development, Rio de Janeiro, June 14, 1992, U.N. Doc. A/Conf.151/26, vol. I-IV.
68. Agenda 21, supra note 64, para. 17.1.
69. L. de La Fayette, "TheMarine Environment Protection Committee: The Conjunction of the Law of the Sea and International Environmental Law," International Journal of Marine and Coastal Law 16 (2001): 155, 157-158.
70. Stockholm Declaration of the 1972 U.N. Conference on the Human Environment, 11 I.L.M. 1416 (1972).
71. Agenda 21, supra note 64, para. 17.18-17.43.
72. Ibid., para. 17.22(a).
73. International Convention for the Prevention of Pollution by Ships (MARPOL), amended by the 1978 Protocol, 1374 U.N.T.S 61.
74. Ibid., para. 17.30(a).
75. Ibid., para. 17.31.
76. Ibid.
77. As reported in S.A. Lentz, "The Precautionary Approach and the IMO," in 1995 International Oil Spill Conference, supra note 56, at 669.
78. MEPC Resolution 67(37), 37/22/Add. 1 of 15th September 1995.
79. Ibid., parag. 3. Respecting the International Ship Management Code, see the Web site of the IMO at www.imo.org.
80. Ibid., para. 4.
81. Ibid., para. 4.1.
82. G. Peet, "Particularly Sensitive Sea Areas: A Documented History," 9 I.J.M.C.L. (1994): 469-507, at 471.
83. MARPOL above note, Annexes I, II, and III.
84. IMO Resolution A.720(17) containing the Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas.
85. Report of the Marine Environment Protection in its 30th Session, Jan. 8, 1991, MEPC 30/24, Annex 17.
86. Ibid., Annex 18.
87. IMO Resolution A.982 (24), Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas, adopted Dec. 1, 2005. Resolution A.982(24) replaces the earlier IMO Resolution A.927(22), adopted on Nov. 29, 2001, Guidelines for the Designation of Special Areas under MARPOL 73/78 and Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas.
88. Resolution A.982(24), supra note 83, para. 6.1. It is noted that, under the 2005 Resolution, reference to compulsory pilotage and vessel traffic management systems which was explicit in Resolution A.927(22), has been removed.
89. PSSA Guidelines, supra note 83.
90. Supra note 83.
91. Under the 2001 Guidelines, there needed to be shown the presence of only one criterion in the area, without reference to its geographical scope. The 2005 Guidelines require that: "information and supporting documentation should be provided to establish that at least one of the criteria exists throughout the entire proposed area, though the same criterion need not be present throughout the entire area." Resolution A.982(24), supra note 83, para. 4.4.
92. Ibid, para. 5.1.1.
93. Ibid., para. 5.1.2.
94. Ibid., para. 5.1.3.
95. Ibid., para. 5.1.5.
96. Ibid., para. 5.1.6.
97. Ibid., para. 5.1.7.
98. Ibid., para. 5.1.2.
99. Ibid., para. 5.2.1.
100. Ibid.
101. Ibid.
102. Ibid.
103. Ibid., para. 3.2.
104. MARPOL, supra note 79, Annexes I, II, and V.
105. SOLAS, supra note 57, Regulation 10(2) of chap. V.
106. Resolution A.982(24), para. 7.4.
107. See, for instance, Comments on MEPC 52/8 submitted by WWF, on the Proposed Amendments to Assembly Resolution A.927(22) to Strengthen and Clarify the Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas (PSSAs), MEPC 52/8/4, Aug. 18, 2004.
108. For a report and analysis of this debate, see J. Roberts, M. Tsamenyi, T. Workman, and L. Johnson, "The Western European PSSA Proposal: A 'Politically Sensitive Sea Area,'" Marine Policy 29 (2005): 431.
109. Supra note 81.
110. Report of the Marine Environment Protection Committee at its 53rd Session, 18-22 July 2005, MEPC 53/24, para. 8.33.2.
111. MEPC 74/40, Identification of the Archipelago of Sabana-Camaguey as a Particularly Sensitive Sea Area.
112. MEPC 97/47, Identification of the sea area around Malpelo Island as a Particularly Sensitive Sea Area.
113. MEPC 98/47, Identification of the sea area around the Florida Keys as a Particularly Sensitive Sea Area.
114. MEPC 101/48, Identification of the Wadden Sea as a Particularly Sensitive Sea Area.
115. MEPC 106/49, Designation of the Paracas National Reserve as a Particularly Sensitive Sea Area.
116. MEPC 135/53, Designation of the Galapagos Archipelago as a Particularly Sensitive Sea Area.
117. MEPC 136/53, Designation of the Baltic Sea as a Particularly Sensitive Sea Area.
118. MEPC 134/53, Designation of the Canary Islands as a Particularly Sensitive Sea Area.
119. MEPC 121/52, Designation of the Western European waters as a Particularly Sensitive Sea Area.
120. 1971 Convention onWetlands of International Importance (Ramsar Convention), 11 I.L.M. 963 (1972).
121. See Identification and Protection of Special Areas and Particularly Sensitive Sea Areas, Designation of theWadden Sea as a Particularly Sensitive Sea Area, submitted byDenmark,Germany, and the Netherlands, MEPC 48/7/2, June 28, 2002.
122. See Identification and Protection of Special Areas and Particularly Sensitive Sea Areas, Designation of the Baltic Sea Area as a Particularly Sensitive Sea Area, submitted by Denmark, Estonia, Germany, Latvia, Lithuania, Poland, and Sweden, MEPC 51/8/1, Dec. 19, 2003.
123. Proposed Wadden Sea Designation, supra note 117, at 3.
124. Convention on the Protection of the Marine Environment of the Baltic Area, 13 I.L.M. 546 (1974).
125. Proposed Baltic Sea Designation, supra note 118, at 13.
126. Ibid., at 11.
127. Identification and Protection of Special Areas and Particularly Sensitive Sea Areas, Extension of Existing Great Barrier Reef PSSA to include the Torres Straight Region, submitted by Australia and Papua New Guinea, MEPC 49/8, Apr. 10, 2003, at 13.
128. Identification and Protection of Special Areas and Particularly Sensitive Sea Areas, Designation of the marine area of the Paracas National Reserve as a "particularly sensitive sea area," submitted by Peru, MEPC 48/7, Apr. 18, 2002, at 16.
129. Proposed Torres Strait Designation, supra note 123, at 15.
130. Ibid., at 12.
131. Identification and Protection of Special Areas and Particularly Sensitive Sea Areas, Designation of a Western European Particularly Sensitive Sea Area, submitted by Belgium, France, Ireland, Portugal, Spain, and the United Kingdom, MEPC 49/8/1, Apr. 11, 2003, at 43.
132. See MSC/Circ.1060, Jan. 6, 2003, Ref. T2/8.03, available at the IMO Web site.
133. SOLAS Convention, supra note 57, Regulation 10(1) of chap. V.
134. Ibid., Regulation 10(2) of chap. V.
135. MSC/Circ. 1060, supra note 128.
136. Ibid., para. 3.1.
137. Ibid.
138. Routeing Measures other than Traffic Separation Schemes, SN/Circ.220, May 27, 2002, Ref. T2/2.07, available at the IMO Web site.
139. Ibid., at 3.
140. SOLAS Convention, supra note 56, Regulation 12(1) of chap. V.
141. Ibid., Regulation 12(2) of chap. V.
142. IMO Resolution A. 857(20), Guidelines for Vessel Traffic Services, para. 1.1.9.2.
143. Ibid., para. 1.1.9.3
144. Ibid., para. 1.1.9.4.
145. Ibid., para. 1.1.9.5.
146. Available at www.iala-aism.org
147. Available at the IALA Web site, supra note 142.
148. IALA Recommendation V-119 of September 2000, available at the IALA Web site, supra note 142.
149. Ibid., para. 1.1.
150. IALA, Guidelines on Risk Management, Dec. 2000, available at the IALAWeb site, supra note 142, divides the Risk Management process into five clearly identifiable steps: Risk Identification; Risk Assessment; Risk Control Options; Decision Making; and Take Action. It recommends that a Feasibility Study should be carried out in five phases, each addressing the Risk Management Process steps.
151. The recent changes brought to PSSA Guidelines have had the effect of restricting coastal states' possibilities within the IMO to adopt innovative and proactive measures to control environmental risk in areas under their jurisdiction. The debate that took place at IMO level reflects the conflict of interests that exist between flag and coastal states with respect to the freedom of navigation, and innocent and transit passage in particular. See Roberts, supra note 34. This author, however, is of the opinion that these restrictions introduced at the IMO level will not deter coastal states from seeking to expand their legal jurisdication over coastal areas and that the debate will simply move away from the IMO.