New approaches for addressing damage to the marine environment

International Journal of Marine and Coastal Law

Volumn 20, Issue 2, 2005, Pages 167-224

  De La Fayette, Louise Angélique ^a  

^a Division of Ocean Affairs and the Law of the Sea   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

INTERNATIONAL LAW; LAW OF THE SEA; LIABILITY; MARINE ENVIRONMENT; MARITIME TRADE; MINERAL EXPLORATION; OIL POLLUTION;

EID: 34547970275     PISSN: 09273522     EISSN: 15718085     Source Type: Journal    
DOI: 10.1163/157180805775094472     Document Type: Review

References (174)

1. The latest is the UN/ECE Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Tranboundary Waters, adopted at Kiev, 21 May 2003; text at http://www.unece.org/ env/civil-liability/protocol.html. On the utility of liability regimes in general, see Brunée, "Of Sense and Sensibility: Reflections on International Liability Regimes as Tools for Environmental Protection", (2004) 53 ICLQ 351;
2. Churchill, "Facilitating Civil Liability Litigation for Environmental Damage by Means of Treaties", (2001) 12 YbIEL 3.
3. Report of the International Law Commission on its Work at the 55th Session, Official Records of the General Assembly, 58th Session, Supp. 10 (A/58/10);
4. Topical Summary of the Discussion held in the Sixth Committee of the General Assembly, UN Doc. A/CN.4/537;
5. Report of the International Law Commission on its Work at the 56th Session, Official Records of the General Assembly, 59th Session, Supp. 10 (A/59/10), pp. 143-217.
6. Rac PS., "International liability for Transboundary Harm", Enc. Policy and Law, 34/6 (2004), 224.
7. For a critique of the ILCs earlier efforts, see, by the same author, "The ILC and International Liability: A Commentary", (1997) 6 Review of European Community and International Environmental Law 321.
8. Endorsed in UN General Assembly Resolution 47/190 (1992).
9. Although both UNCLOS and Principle 16 use the term, "pollution" , in line with the evolutionary principle of the interpretation of international instruments espoused by the ICJ in the Namibia, Aegean Sea and Gabcikovo-Nagymaros Dam cases, the word "pollution" should be interpreted in accordance with subsequent developments in science and law to refer to all forms of environmental degradation. See also discussion in note 30 below.
10. The Convention on Civil Liability for Oil Pollution Damage Resulting From Exploration for and Exploitation of Seabed Mineral Resources was adopted in 1977 to provide compensation for damage caused by the exploration for and the exploitation of oil and gas resources on the continental shelf in the North Sea area. Done at London, 1 May 1977, not in force (Cmnd. 6791). It is not considered in this paper because it is only regional, will never enter into force and uses the outmoded 1969 CLC definition of "pollution damage".
11. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, 1972; and Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, 1996.
12. Louise de La Fayette, "The London Convention 1972: Preparing for the Future", (1998) 13 International Journal of Marine and Coastal Law 515-536.
13. In force since 1975; text in (1972) 11 ILM 277. This Convention refers the question of liability for nuclear damage caused by maritime carriage to the nuclear liability conventions (see discussion below). The 1962 Convention on the Liability of Operators of Nuclear Ships ((1963) 57 AJIL 268) most probably will never come into force.
14. The International Convention for the Control and Management of Ships' Ballast Water and Sediments was adopted on 13 February 2004 by a diplomatic conference held at IMO headquarters in London. Its purpose is to prevent harm to human health and the environment from alien species and pathogens carried in ships' ballast water.
15. For further discussion, see the sub-section below headed "Mining in the Area".
16. This definition is adapted from that in the Lugano Convention (see note 63 below). The recent Report of the International Law Commission contains a similar definition (op, cit., note 2). On defining and valuing environmental damage, see generally Wetterstein (ed.), Harm to the Environment (Oxford, 1997);
17. Bowman and Boyle (eds.), Environmental Damage in International and Comparative Law (Oxford, 2002).
18. International Convention on Civil Liability for Oil Pollution Damage, done at Brussels, 29 November 1969, in force 19 June 1975; 973 UNTS 3. For an account of the background to the conclusion of the CLC, see Balkin, "The Establishment and Work of the IMO Legal Committee" in Nordquist and Moore (eds.), Current Maritime Issues and the International Maritime Organization (Martinus Nijhoff Publishers, 1999).
19. International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (Fund Convention), done at Brussels, 18 December 1971, in force 16 October 1978, (1972) 11 ILM 284.
20. US Oil Pollution Act of 1990, 33 USC 2706. Liability and compensation for natural resource damage were available under a number of earlier statutes, primarily the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (known as CERLA or Superfund), codified at 42 USC 9601 ff. and 33 USC.
21. In s. 2701(20), natural resources are defined as including "land, fish, wildlife, biota, air, water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States (including the resources of the exclusive economic zone), any state or local government or Indian tribe, or any foreign government".
22. 61 Fed. Reg. 504 (5 January 1966).
23. Ibid., s. 2706(d).
24. For detailed explanations of how the system actually works, see: (i) a CD ROM produced in August 1996, entitled "Guidance Documents for Natural Resource Damage Assessment Under the Oil Pollution Act of 1990";
25. an information package produced by NOAA, which includes a number of explanatory documents, such as "Reversing the Tide: Restoring the Nation's Coastal and Marine Natural Resources" (June 1998), technical documents produced by the Hazardous Materials Response Division in March 2000, and descriptions of actual cases in which restoration has been undertaken;
26. and (iii) the NOAA website, at http://response.restoration.noaa.gov, which also contains legislative texts.
27. For details, see Brighton and Askman, op. cit., note 5 above (No reference elsewhere).
28. For a comprehensive study, see "Study on the Valuation and Restoration of Damage to Natural Resources for the Purpose of Environmental Liability", prepared by MacAllister Elliott and Partners Ltd, May 2001, for the European Commission, Doc. B4-3040/2000/265781/MAR/B3.
29. Some deal with damage caused by maritime transport incidentally; see discussion of the Basel Convention Liability Protocol and the nuclear liability conventions below.
30. IMO Doc. AFS/CONF/26, 18 October 2001.
31. IMO Doc. BWM/CONF/36, 16 February 2004.
32. See IOPC Doc. 92FUND/EXC.28/5, 22 February 2005.
33. Information taken from IOPC Fund Doc. 92FUND/EXC.28/5, 22 February 2005. For more information, see: "Information Resources on the 'Prestige'", by IMC Library Services, 13 April 2005. For more recent information, see 92FUND/EXC.26/8/8/Add.1, /8/1 and /8/2, and for the latest information on the earlier Erika disaster, see 92FUND/EXC.28/4. For additional information and comments and conclusions on oil tanker accidents, see draft Report on improving safety at sea (2003/2235(INI)), Report of the committee established by the European Parliament to investigate the Prestige and other environmental disasters at sea, "Temporary Committee on Improving Safety at Sea", 23 February 2004, as well as the Resolution on Safety at Sea adopted by the European Parliament on 20 April 2004. Complete information on MARE website at http://www.europarl.eu.int/comparl/tempcom/mare/default_en.htm.
34. Although the 1971 Fund Convention ceased to be in force on 24 May 2002, the Administrative Council of the Fund will continue to meet until all outstanding claims from incidents before that date have been settled.
35. For information, see IOPC Fund website at http://www.iopcfund.org.
36. Liability is limited according to the size of the vessel, not the amount of pollution damage.
37. For more details, see the Annual Reports of the Funds and visit the website at http://www.iopcfund.org.
38. In the 1982 Law of the Sea Convention, pollution of the marine environment is defined as "the introduction by man of substances or energy into the marine environment, which results or is likely to result in certain deleterious effects". This definition was an advance on the work of GESAMP, the IMO/FAO/UNESCO-IOC/WMO/WHO/IAEA/UN/UNEP Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (formerly Marine Pollution). It has since been modified and expanded in more recent conventions in the light of further scientific research. The more recent and much broader term now in current use is "marine environmental degradation", which includes all forms of impairment of the marine environment, of which pollution is only one.
39. A more accurate term might be "response measures"; however, the initial cleaning up of the oil from sea or land might also be considered as the first stage of reinstatement or restoration of the environment to its pre-spill condition.
40. For basic information about the work of ITOPF, see the ITOPF website http://www.itopf.com and The Intentional Tanker Owners Pollution Federation Limited, ITOPF Handbook 2000/2001. Consultants and academic experts are also relied upon, including some engaged locally because they are familiar with the area, the oceanography or the state of the fisheries.
41. It might also be noted here that as the definition of "pollution damage" does not expressly exclude personal injury, the Fund has admitted that claims for personal injury cannot be excluded in principle. However, in practice, the Fund has not admitted claims for injury by inhalation of fumes or for risk to health. In one recent case arising out of the Braer spill, a local landowner claimed for stress and depression resulting from pollution of his property. While admitting that "pollution damage" could include physical injury, the Fund rejected the claims for "stress", asserting that the stress had not been caused by contamination and that it could not pay claims for anxiety or speculative damage.
42. Report on the Activities of the International Oil Pollution Compensation Fund in the Calendar Year 1979.
43. Hereinafter referred to as "the 1984 oil pollution definition".
44. The only instrument with a definition of pollution damage taken from the original 1969 CLC is the 1977 Convention on Civil Liability for Oil Pollution Damage Resulting From Exploration for and Exploitation of Seabed Mineral Resources.
45. Protocol to the 1969 CLC, done at London, 27 November 1992, in force 30 May 1996; Protocol to the 1971 Fund, done at London, 27 November 1992, in force 30 May 1996. The 1992 Protocols incorporated the unamended text of the earlier Conventions to produce two new conventions. Consolidated versions have been published by the Fund. The definition of "pollution damage" originating in the 1984 Protocols and repeated in the 1992 Protocols will hereinafter be referred to as the "1984 oil pollution definition".
46. In the event, in the Patmos case, because the claims did not exceed the shipowner's liability the Fund did not have to pay anything. In the Haven case, the Fund and the Italian government agreed to a global settlement of all claims, with the Fund specifically stating that it would not pay anything for compensation to the marine environment per se. For a summary of the judgment of the Court of Appeal in the Patmos case, see IOPC Doc. FUND/Exc.30/2, para. 4.15, 29 November 1991. For details, see the account in Report on the Activities of the International Oil Pollution Compensation Fund in the Calendar Year 1994, pp. 36-39.
47. For a discussion, see Maffei, "The Compensation for Ecological Damage in the Patmos Case" in Francioni and Scovazzi (eds.), International Responsibility for Environmental Harm (Graham and Trotman, 1991);
48. and Bianchi, "Harm to the Environment in Italian Practice: The Interaction of International Law and Domestic Law" in Wetterstein (ed.), op. cit., note 11 above, p. 103.
49. For a report on the settlement in the Haven case, see IOPC Funds, Annual Report (1999), pp. 42-48.
50. According to "Guidelines on Biological Impacts of Oil Pollution" (International Petroleum Industry Conservation Association, 1991), "Recovery is marked by the re-establishment of a healthy biological community in which the plants and animals characteristic of that community are present and are functioning normally", quoted in "Admissibility and Assessment of Claims for Oil Pollution Damage", Report of the Chairman of the International Sub-Committee, Comité Maritime International, (1993) Yearbook.
51. This is the term, used in the report of the Working Group. Apparently, it considered "impairment of the environment" and "environmental damage" to be synonymous.
52. Despite this firm conclusion, claims for damage to the environment have not entirely disappeared. For example, in the Nissos Amorgos case, the Republic of Venezuela submitted a claim, for over US$60M for damage to the environment. At its July 2003 Session, the Administrative Council of the 1971 Fund recalled its previous decisions regarding environmental damage and decided that certain elements of the Venezuelan claim did not fall within the definition of pollution damage in the Conventions and therefore were not admissible (IOPC Fund, Annual Report (2003), pp. 66-67).
53. To a certain extent, however, this may be a semantic question, for it would appear reasonable to refer to clean-up activities to remove oil from the coast as the first stage of reinstatement or restoration of the environment, while the replacement of any sand or soil removed and the re-introduction of any flora and fauna destroyed could be regarded as the second stage. See Conclusions, below.
54. The phrase "to be undertaken" means that Fund will provide funding in advance if the state concerned cannot afford to engage in the reinstatement without first receiving the compensation.
55. Personal communication by IOPC Fund Secretariat. The same assertion has been made by ITOPF in its letter dated 26 June 2000 to the European Commission commenting upon the White Paper on Liability (available on the ITOPF website at http://www.itopf.com).
56. Report on the Activities of the International Oil Pollution Compensation Fund in the Calendar Year 1994, pp. 24-29.
57. The CMI is a private organisation, comprising national maritime law associations from all over the world. It has prepared a number of draft conventions for the IMO, as well as providing expert input on a variety of issues over the years.
58. "Guidelines on Admissibility and Assessment of Claims for Oil Pollution Damage", Comité Maritime International, (1994) Yearbook, Sydney Conference.
59. An example of this was a decision in the Scottish courts in relation to the Braer oil spill, in which the court's decision on a question of pure economic loss was much more restrictive than the practice of the Fund. See "Braer", IOPC Funds, Annual Report (1999), pp. 56, 57-59, regarding the Landcatch case.
60. Erika broke up in heavy seas off the western coast of France, spilling around half its cargo of heavy fuel oil. The casualty attracted a great deal of attention, because clean-up operations were difficult, expensive, and protracted; because thousands of seabirds were killed; because the vessel had been old and in poor condition; and because the amount of damage far exceeded the capacity of the shipowner and the Fund to pay. For reports on the Erika incident, see IOPC Funds, Annual Report (1999), pp. 118-120 and most recently 92FUND/EXC.28/4 and Add.1. IOPC Fund Docs. 92FUND/EXC.6/2, 92FUND/EXC.6/2/Add.1, 92FUND/EXC.7/4, 92FUND/EXC.7/4/Add.1.
61. Fund. Doc. 92FUND/A/ESA/7, 6 April 2000, paras. 5.3.1-5.3.8.
62. Cmnd. 3580; also published by IMO in 1997. Not yet in force. The author was involved as a legal advisor in the Canadian Department of Foreign Affairs.
63. For the most recent information on the status and implementation of the Convention, see IMO Docs. LEG 89/10, LEG 89/16, paras. 201-205, LEG 90/9 and IOPC Fund Doc. 92FUND/A.8/26, 10 October 2003.
64. Except in the case of tankers in the 1992 CLC and Fund Conventions.
65. The author.
66. The text was similar to that proposed by the author for the Liability Protocol to the Basel Convention, discussed below.
67. IMO Doc. LEG 79/6/3.
68. Report of the Legal Committee on its 79th Session, IMO Doc. LEG 79/11. In addition, many delegations stated privately that they preferred the vagueness of the old definition, as it permitted more scope for interpretation, and for "flexibility" in the determination of the admissibility of claims.
69. IMO Doc. LEG 90/5.
70. Although the definition is still not fully agreed, it includes parts of ships and objects lost at sea, as well as entire sunken or stranded ships (Art. 1(1)), ibid.
71. In the terms of the draft convention, "the Affected State", which means "the State in whose Convention area the wreck is located".
72. For latest Legal Committee discussion, see LEG 89/16, paras. 117-156.
73. Other forms of damage besides pollution that might be caused by wrecks include smothering benthic organisms or crushing coral reefs.
74. Done at Lugano, 21 June 1993, not in force, (1993) 32 ILM 1228; see also Council of Europe website at http://www.coe.fr/eng/legaltxt.
75. See below and the latest Report of the International Law Commission, note 2 above.
76. In the words of the Explanatory Report: "40. Measures of reinstatement consist above all and whenever possible in environmental reinstatement or restoration. This concerns the establishment of an environmental situation identical to the one which existed before the damage. When it is possible to restore or re-establish the environment, the measures of reinstatement may be in the form of the reintroduction of equivalent components into the environment. This applies for example in the case of the disappearance of an animal species or the irreparable destruction (sic) of a biotope. Such damage cannot be evaluated financially and any reinstatement of the environment is in theory impossible. Since such difficulties must not lead to a complete absence of compensation, a specific method of compensation has been introduced. This method of compensation is based on achieving an equivalent instead of an identical environment." This notion relies on the given circumstances of each individual case of damage and is not defined in the Convention itself.
77. Due to the adoption of the EU Directive on Environmental Liability, which applies to many of the same states, the Lugano Convention will probably never enter into force. Therefore, although there is a potential conflict with the Basel Convention Liability Protocol, this conflict may never be realised. At an Expert Meeting held by UNEP on Liability and Compensation for Environmental Damage, the Chair for the development of the Joint Liability Protocol under two UNECE conventions reported that the question why the Lugano Convention had failed to attract support and to come into force had been posed in a questionnaire sent to states that had not signed the Convention. Some responses had attributed the failure to enter into force to a lack of specificity and to the scope of the matters covered (UNEP Doc. UNEP/DEPI/L&C Expert Meeting 1/1, 8 August 2002, para. 6; the UNECE Protocol, on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes and to the 1992 Convention on the Transboundary Effects of Industrial Accidents, Kiev, 21 May 2003, text on UNECE website at www.unece.org/env/civil-liability/protocol.html). Many provisions echo those in the Basel Convention Liability Protocol.
78. Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and Their Disposal, the Liability Protocol to the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. The Basel Convention was adopted at Basel, 22 March 1989, in force 24 May 1992, (1989) 28 ILM 657. The Protocol on Liability and Compensation was adopted at Basel on 10 December 1999 by Decision V/29 and opened for signature in Bern from 6-17 March 2000, as well as at United Nations Headquarters from 1 April-10 December 2000. The text is on the website of the Basel Convention Secretariat at www.basel.int.
79. The author served as head of the Canadian delegation to the negotiations from 1994 to 1996. In 1997-98, she advised the UK government on the conduct of the negotiations. Any opinions expressed are personal and do not reflect the views of either government.
80. This was not accurate, because the 1988 Convention on the Regulation of Antarctic Mineral Resource Activities did provide compensation for such damage, and the 1993 Lugano Convention could be interpreted as doing so. (For the situation in Antarctica, see below.)
81. This change would enable employees to claim for compensation as well as employers. The IOPC Fund has consistently refused to pay compensation to employees who have been laid off as a consequence of contamination by oil, e.g. those working in a fish-processing plant. The owner, of course, may claim compensation for loss of profit. To many, this would appear to be unfair.
82. In fact, this had always been done in the assessments by the IOPC Fund, even though not set out in the Convention. When calculating the costs of business disruption as a consequence of oil pollution, the Fund takes into consideration that there will be fewer costs if the business is not functioning.
83. The Official Report of the Fifth Session of the Ad Hoc Group of Legal and Technical Experts is found in UNEP Doc. UNEP/CHW.1/WG.1/5/5.
84. Interim Guidelines for the Implementation of Decision V/32, "Enlargement of the Scope of the Technical Cooperation Fund", at http://www.baselint/meetings/interguide00.html.
85. Paris Convention, on Third Party Liability in the Field of Nuclear Energy of 29 July 1960, as amended by the Additional Protocol of 28 January 1964 and by the Protocol of 16 November 1982; text reproduced in Louise de La Fayette, Liability and Compensation for Nuclear Damage: An International Overview (OECD, 1994), pp. 154-155.
86. Compensation under the Paris Convention is supplemented by funds provided by states under the Brussels Convention of 31 January 1963, Supplementary to the Paris Convention of 29 July 1964 and the Additional Protocol of 28 January 1964 and by the Protocol of 16 November 1982, reproduced in de La Fayette, ibid., p. 170.
87. See IAEA website at http://www.iaea.org/worldatom/Documents/Legal/ liability.html.
88. In addition to clauses in specific conventions exempting liability for nuclear damage, a general precedence to the nuclear liability conventions is given in the 1971 Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material.
89. Recently, the US has also shipped radioactive material to France for reprocessing. See, e.g., "US Nuclear Cargo Draws Protests in France", New York Times, 5 October 2004, p. A11. Two vessels carried weapons-grade plutonium-from South Carolina to Cherbourg for eventual reprocessing in facilities operated by Aveva/Cogema into mixed-oxide fuel rods that would be shipped back to the US.
90. For an overview of the modernised IAEA liability regime see IAEA doc. GOV/INF/2004/9-GC (48)/INF/S. The explanatory texts are available at www.iaea.org/About/Policy/GC/GC48/Documents/gc48inF-5 explanatory texts.pdf.
91. See Reports of the Secretary General on Oceans and the Law of the Sea, UN Doc. A/58/65, paras. 53-55 and Add.1, paras. 37-40; A/59/62, paras. 146-147; A/59/62/Add/1 and A/60/63, paras. 69-74 for summaries of recent developments. For example, during the International Meeting on the Ten-Year Review of the Barbados Programme of Action, concern was expressed about the environmental implications of the maritime transport of radioactive materials and the lack of adequate liability and compensation regimes CA/COWF.207/CRP.7, para 20 quater. During the Preparatory Committee for the 2005 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), states parties emphasised that all transport of nuclear and radioactive material, including maritime transport, should be carried out in a safe and secure manner, in strict conformity with international standards established by the relevant international organizations, such as IAEA and the IMO. Some states parties called for effective liability arrangements, prior notification and consultation. States carrying out international transport stated that those transports are carried out in a safe and secure manner and in strict conformity with all relevant international standards.
92. The author was involved in this process as a legal advisor in the Canadian Department of Foreign Affairs. She also worked as a consultant at the OECD Nuclear Energy Agency in 1992-93. Any opinions expressed are purely personal. For further information on the OECD and IAEA nuclear liability regimes, see, by the same author, International Liability for Damage Arising from Nuclear Accidents (External Affairs and International Trade Canada, 1988);
93. Liability and Compensation for Nuclear Damage: An International Overview (OECD, 1994);
94. "Towards a New Regime of State Responsibility for Nuclear Activities", (1992) Nuclear Law Bulletin 50, 7;
95. "Nuclear Liability Revisited", (1993) 1 RECIEL 2443;
96. "International Environmental Law and the Problem of Nuclear Safety", (1993) 5 JEL 3;
97. "The Complex of Issues Involved in the Revision of the Vienna Convention" (Panel), Proceedings of the Helsinki Symposium on Nuclear Accidents-Liabilities and Guarantees (OECD/NEA, Paris, 1993), p. 320;
98. "Nuclear Waste Management", (1993) 4 YbIEL 188; "Nuclear Waste Management", (1995) 5 YbIEL 200.
99. (1997) 36 ILM 1454. Also adopted was the Convention on Supplementary Compensation for Nuclear Damage, establishing a system of intergovernmental supplementary funding for compensating nuclear damage where compensation by the operator is insufficient or unavailable.
100. For a recent discussion of these provisions, see "The New Definition of Nuclear Damage in the 1997 Protocol, to Amend the 1963 Vienna Convention on Civil Liability for Nuclear Damage" in Reform of Civil Nuclear Liability, Budapest Symposium 1999 (OECD Nuclear Energy Agency, 1999). The Proceedings of the Budapest Symposium contain expert views on the current state of nuclear liability law.
101. In preparation for the revision of the Paris Convention, the OECD held a conference to discuss all the issues, including environmental damage, at which one of the main speakers was the Director of the IOPC Fund. See Proceedings, op. cit., note 63 above (Query re ref to note 63).
102. See Press Release on NEA website at http://www.nea.fr.
103. All relevant texts may be accessed through the NEA website at www.nea.fr/html/legal-documents. More precisely, the Protocol revising the Paris Convention is at www.nea.org.fr/html/law/parisconvention.pdf; while the Protocol revising the Brussels Convention is at www.nea.org.fr/html/law/ brussels_supplementary_convention.pdf.
104. Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, in force 1 September 1972, 961 UNTS 187.
105. On 24 January 1978, a Soviet satellite powered by a small nuclear reactor disintegrated over the Canadian North-West Territories. Canada claimed compensation for damage caused by the radioactive fragments of the satellite pursuant to the Space Liability Convention, to the Outer Space Treaty and to the general principles of international law. Although the fragments did not cause any damage by impact, their radioactive properties meant that they could cause radiation harm to persons and animals coming in contact with them. In its claim, Canada explained that the "purpose of these operations was to identify the nature and the extent of the damage caused by the debris, to limit the existing damage and to minimise the risk of further damage and to restore to the extent possible the affected areas to the condition that would have existed if the intrusion of the satellite and the deposit of the debris had not occurred" (Canada, Claim Against the USSR for Damage Caused by Soviet Cosmos 954, 23 January 1979, para. 8 in (1979) 18 ILM 899, 904).
106. "Principles Relevant to the Use of Nuclear Power Sources in Outer Space", adopted by the United Nations General Assembly in 1992 (Resolution 47/68; text at http://www.un.or.at/OOSA/treat/nps/npstxt.html).
107. Excerpt from ITAR-TASS News Agency, Moscow, relayed by BBC News, 2 August 2004. This was actually a deliberate dumping of waste rather than an accident.
108. The Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, adopted 28 July 1994, in force 28 July 1996 in (1994) 33 ILM 1154.
109. Available on the ISA's website at http://www.isa.org.jm and in ISA Doc. ISBA/6/A/18. See also "Recommendations for the Guidance of the Contractors Form the Assessment of the Possible Environmental Impacts Arising from Exploration for Polymetallic Nodules in the Area", issued by the Legal and Technical Commission, ISBA/7/LTC/1/Rev.1, 13 February 2002 and the Draft Regulations on Prospecting and Exploration for Polymetallic Sulphides and Cobalt-Rich Ferromanganese Crusts in the Area, proposed by the Legal and Technical Commission of the ISA in Doc. ISBA/10/C/WP.1, 24 May 2004.
110. The annotated version of the Draft Regulations prepared by the Secretariat (ISBA/6/C/CRP.2) refers in the notes to the definitions to para. 3.1 of "Guidelines for Marine Environmental Assessments", prepared by GESAMP; the Introduction, para. 1 of the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities; Art. 1(3) of the Convention on the Conservation of Antarctic Marine Living Resources;
111. and the definitions reproduced in the Executive Summary of a Workshop on Deep-Seabed Polymetallic Nodule Exploration, "Development of Environmental Guidelines", held by the ISA in China, 1-5 June 1998.
112. This is reminiscent of the term, "observable or measurable adverse change" in the NOAA definition, of "injury to natural resources", in the rules implementing OPA 90 referred to in the Introduction to this paper.
113. The annotated version of the Draft Regulations refers to the definition of "pollution" in LOSC, Art. 1(4), as well as in several of the regional seas conventions.
114. (1988) 27 ILM 859.
115. (1991) 30 ILM 1461, in force 14 January 1998.
116. The only substantial shipping incident thus far has been the release of diesel fuel and lubricants from the Argentine vessel Bahia Paraiso, which ran aground near Palmer Station in 1989 ("Worst Case and Less Than Worst Case Environmental Scenarios", XXVI ATCM, Working Paper WP-9, p. 13).
117. The author was involved in an earlier phase of the negotiations while in the Canadian Department of Foreign Affairs. Any opinions expressed are strictly personal.
118. Statement of Ambassador of Poland to the United Nations General Assembly on 30 October 2002.
119. Chairman's Draft of Annex VI to the Protocol on Environmental Protection to the Antarctic Treaty, "Liability Arising from Environmental Emergencies", XXVI ACTM Working Paper, WP-033-NZ;
120. Amendment to the Chairman's draft Annex VI, "Liability Arising from Environmental Emergencies-Article 14", RCTA Working Paper WP-042-G;
121. "Worst Case and Less Than Worst Case Environmental Scenarios", XXVI ATCM Working Paper by CONMAP.
122. Discussion summarised, in Final Report of the XXVI ATCM, Item 7, "The Question of Liability as Referred to in Article 16 of the Protocol", paras. 82-110.
123. Chairman's Draft Annex VI to the Protocol on Environmental Protection to the Antarctic Treaty: Liability Arising from Environmental Emergencies", XXVII ATCM, Working Paper WP006.
124. The report of the Working Group is in the Final Report of XXVII ATCM, pp. 19-24, paras. 97-127.
125. On behalf of the Antarctic Treaty Consultative Parties that are also Member States of the European. Union, the Netherlands introduced WP-34, which drew attention to recent developments in European Community Law relating to the division of competence between the European Community and the Member States of the European Union in respect of actions for compensation. The matter was put to one side until it was clear that there was an issue at stake.
126. At the Capetown meeting, it was noted that there was a general understanding that only states parties could take response action under Art. 5(2).
127. For recent information about marine insurance, see Report on the Removal of Insurance from Substandard Shipping, OECD Maritime Transport Committee, June 2004.
128. See IOPC Doc. 92FUND/EXC.24/2, 23 January 2004, for description of damage
129. For more details, see by the same author, "The Protection of the Marine Environment in 2000", (2001) 31 Environmental Policy and Law 140-149.
130. Report of the Legal Committee on the Work of its 82nd Session, IMO Doc. LEG 82/12, 6 November 2000, paras. 104-129. The texts of Resolution LEG. 1(82) and Resolution LEG.2(82) are in Annexes 2 and 3. Parties to the two Conventions not members of IMO were invited to participate in the discussion and vote on this issue.
131. Proposal for a Regulation of the European Parliament and of the Council on the Establishment of a Fund for the Compensation of Oil Pollution Damage in European Waters and Related Measures, 2000/0326(COD); amendment by the European Parliament in Doc. A5-0201/2001; both reproduced in Fund. Doc. 92FUND/A.6/5, 24 September 2001.
132. Fund Doc. 92FUND/WGR.3/8/4, 1 June 2001.
133. Protocol of 2003 to the 1992 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, text in IMO Doc. LEG/CONF. 14/20.
134. This is because increasing the liability of shipowners would require an amendment to the CLC and the increase would only apply to ships registered in states parties to the amendment. The consequence would likely be that shipowners in such states would re-register to another state not party to the amendment to avoid the additional liability.
135. IOPC Fund Docs. 92FUND/A.6/4/3, 2 October 2001 and 92FUND/WGR.3/11/1, 20 March 2002.
136. IOPC Fund Press Release of 16 May 2003, "The International Community Adopts Protocol on the Establishment of a Supplementary Fund for Compensation for Oil Pollution";
137. EU Institutions Press Release DN:IP/03/701, 16/05/2003, "Maritime Safety: Loyola de Palacio Welcomes the Agreement for New Levels of Oil Pollution Compensation".
138. See also: "The International Regime for Compensation for Oil Pollution Damage", Explanatory.
139. IOPC Fund Doc. 92FUND/WGR.3/8/13.
140. IOPC Fund Doc. 92FUND/A.6/4/5.
141. IOPC Fund Doc. 92FUND/WGR.3/11/3, 28 March 2002.
142. IOPC Fund Docs. 92FUND/WGR.3/11/4 and 92FUND/WGR.3/11/4/Add.1.
143. Text in IOPC Fund Doc. 92FUND//A.7/4, Annex.
144. See below for a description of the new EU Liability Directive.
145. At the ACTM held in Madrid in June 2003, the representative of the P&I Clubs stated that the Clubs would pay for restoration of an equivalent site in suitable cases. Final Report of XXVI ACTM, para. 96.
146. NRC Report available at http://www.nap.edu; News Report at http://ens-news.com/ens/may2002/2002-05-27-02.asp.
147. (2003) 5653 Science 21/12, 2082-2086. This report was noted by the European Parliament Committee studying the causes and consequences of the Prestige disaster, see note 25 above.
148. See Press Release and text of Claims Manual on IOPC Fund website http://www.iop-fund.org.
149. Report on the 7th Meeting of the Third Intersessional Working Group, "Review of the International Compensation Regime", 6 April 2004, IOPC Fund Doc. 92FUND/WGR.3/20.
150. IMO Doc. MEPC-OPRC/OPRC-HNS/TG 2/11, 3 September 2004. At the 52nd Session of the IMO Marine Environment Protection Committee (MEPC 52), delegations agreed to study the draft manual with a view to its adoption at MEPC 53, IMO Doc. MEPC 52/24, para. 7.4.
151. Proposal for a Directive of the European Parliament and of the Council on Environmental Liability With Regard to the Prevention and Remedying of Environmental Damage, COM(2002)17 final, 2002/0021(COD), Brussels, OJ 2002 No. C151 E/06; reported to the Fund Assembly in IOPC Fund Doc. 92FUND/A/ES.6/6, 15 March 2002.
152. This was a formality only, as a representative of the Commission regularly attends Fund meetings as an observer.
153. P5_TA-Prov(2004)0233, Environmental Liability ***III, European Parliament Legislative Resolution on the Joint Text approved by the Conciliation Committee for a European Parliament and Council Directive on Environmental Liability With Regard to the Prevention and Remedying of Environmental Damage (PE-CONS3622/2004-C5-0079/2004-2002/0021(COD)), adopted 31 March 2004.
154. Council Decision of 30 March 2004.
155. Directive 2004/35/CE of the European Parliament and the Council of 21 April 2004 on Environmental Liability With Regard to the Prevention and Remedying of Environmental Damage, OJ No. L143, 30.4.2004, p. 56.
156. Termed "reinstatement" in the CLC/Fund system.
157. Art. 2 defines species and habitats with reference to Directive 79/409/EEC and Directive 92/43/EEC and any relevant national designation.
158. Water Framework Directive (2000/60/EC).
159. Activities that are considered to pose a threat to the environment in Community legislation listed in Annex I.
160. By reference to Annex IV, which lists the CLC, Fund, Bunkers and HNS Conventions, as well as the nuclear liability conventions.
161. See European Parliament, texts adopted at the sitting of Wednesday, 17 December 2003, P5_TA-PROV(2003)12-17, provisional ed., PE 339.904; P5_TA-PROV(2003)0575, Environmental Liability ***II, Amendment 27 to Art. 18; accepted by the Council by exchange of letters in the conciliation procedure, EU Council Press Release 5910/1/04 REV 1(en) (Presse 44), Brussels, 23 February 2004, Parliament and Council Conciliation Committee, Agreement on Environmental Liability.
162. The final version of the EU Directive together with the draft Directive on Ship-Source Pollution, were reported to the IOPC Funds in Doc. 92FUND/A.9/28, 25 August 2004.
163. Preambular para. B and operative para. 59. See section xxx and note 101 above.
164. Operative para. 9.
165. The Environmental Liability Directive does not provide for mandatory insurance. This was a contentious issue.
166. Operative paras. 20-21.
167. There are 63 recommendations in all.
168. Proposal for a Directive of the European Parliament and of the Council on Ship-Source Pollution and on the Introduction of Sanctions, Including Criminal Sanctions, for Pollution Offences, 2003/0037 (COD), 7 March 2003.
169. The problem related to the legal basis for the Directive under EU law, which is not relevant for this paper.
170. Report from the Council, 10503/04, 14 June 2004, concerning the above Proposal (note 134 above), recording the political agreement of the TTE Council.
171. See new text on environmental liability in the Claims Manual, as described above.
172. See, e.g., "The Cost to Users of Substandard Shipping", prepared for the OECD Maritime Transport Committee by SSY Consultancy & Research Ltd, January 2001; the Report of the OECD Maritime Transport Committee, "Cost Savings Stemming from Non-Compliance with International Environmental Regulations in the Maritime Sector", DSTI/DOT/MTC(202)8/ FINAL, 2003.
173. See OECD, Report on the Removal of Insurance from Substandard Shipping, op. cit.
174. See proposals by various organisations in "Consultative Group on Flag State Implementation", Report of the Secretary-General, UN Doc. A/59/63, and Corr.1.