Centre for Oceans Law & Policy Global Challenges and Freedom of Navigation. Panel VI: Balancing Marine Environment and Freedom of Navigation

Similar documents
RESOLUTION A.718(17) adopted on 6 November 1991 EARLY IMPLEMENTATION OF THE HARMONIZED SYSTEM OF SURVEY AND CERTIFICATION

Submarine Cables & Pipelines under UNCLOS

IMO. adopted on 25 November 1999 GLOBAL AND UNIFORM IMPLEMENTATION OF THE HARMONIZED SYSTEM OF SURVEY AND CERTIFICATION (HSSC)

The 1982 United Nations Convention on the Law of the Sea and maritime safety in the fishing sector

Introduction to IMO. Dr Evangelos Boulougouris

HELCOM RECOMMENDATION 19/14 ON A HARMONIZED SYSTEM OF FINES IN CASE A SHIP VIOLATES ANTI-POLLUTION REGULATIONS. Note by the European Union SUMMARY

Can the COC Establish a Framework for a Cooperative Mechanism in the South China Sea? Robert Beckman

IMPLICATIONS OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA FOR THE INTERNATIONAL MARITIME ORGANIZATION

SHIPPING (MARPOL) (JERSEY) REGULATIONS 2012

EnviroLeg cc MARINE POLLUTION (PREVENTION OF POLLUTION FROM SHIPS) Reg p 1

==-f=-pl u- DEPARTMENT OF MARINE ADMINISTRATION MINISTRY OF TRANSPORT AND COMMUNICATIONS

ANTARCTIC TREATIES ACT NO. 60 OF 1996

Circular. Notice on the Updated Chronogram of IMO Instruments Adopted by. the Panamanian Maritime Administration

MARPOL: The role of the Flag State. Angus McLean Maritime Authority of the Cayman Islands

Annex 1 - Fragmented Ocean Governance: Positioning UN Environment within the Ecosystem of Ocean Management Arrangements

Michelle Scobie, LLb, LEC, PhD Institute of International Relations University of the West Indies, St. Augustine

REGULATIONS FOR THE ISSUE OF STATUTORY CERTIFICATES CONTENTS

SHIPPING LAWS AMENDMENT ACT

Marine Pollution Act 2012

Resolution A.1056(27) Adopted on 30 November 2011 (Agenda item 10)

THE LEGAL REGIME OF STRAITS USED FOR INTERNATIONAL NAVIGATION

ANNEX 7. RESOLUTION MEPC.246(66) Adopted on 4 April 2014

Official Journal of the European Communities. (Acts whose publication is obligatory)

DISSENTING OPINION OF JUDGE GOLITSYN

Official Journal of the European Union

Resolution LEG.3(91) adopted on 27 April 2006 ADOPTION OF GUIDELINES ON FAIR TREATMENT OF SEAFARERS IN THE EVENT OF A MARITIME ACCIDENT

The International Code for Ships Operating in Polar Waters: Finalization, Adoption and Law of the Sea Implications

A discussion paper prepared for IUCN-MED. Philomène A. Verlaan, J.D., Ph.D.

The SCS Arbitration & the Marine Environment. Robert Beckman Centre for International Law National University of Singapore

IMO. Submitted by the Secretariat

Act amending the merchant shipping act and various other acts

Protocol Concerning Cooperation in Combating Pollution of the Mediterranean Sea by Oil and other Harmful Substances in Cases of Emergency 1

Jurisdiction and control at sea: the case of evidence from satellites

International Environmental Law JUS 5520

PROTOCOL CONCERNING COOPERATION IN PREVENTING POLLUTION FROM SHIPS AND, IN CASES OF EMERGENCY, COMBATING POLLUTION OF THE MEDITERRANEAN SEA

The Legal Regime Governing Passage on Routes used for International Navigation through Indonesian Waters. Robert Beckman

Decree on Marine Equipment (925/1998; amendments up to 528/2004 included)

Technical Information

Environmental Protection in Archipelagic Waters and International Straits-The Role of the International Maritime Organisation

Tokyo, February 2015

COOPERATION AGREEMENT for the protection of the coasts and waters of the north-east Atlantic against pollution

RESOLUTION MEPC.246(66) (adopted on 4 April 2014) AMENDMENTS TO THE ANNEX OF THE PROTOCOL OF 1978 RELATING TO THE INTERNATIONAL CONVENTION FOR THE

Resolution adopted by the General Assembly. [on the report of the Sixth Committee (A/56/589 and Corr.1)]

INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

Guidelines on fair treatment of seafarers in the event of a maritime accident

This report is published and distributed by America s Survival, Inc. Cliff Kincaid, President

MERCHANT SHIPPING (SAFETY SIGNS AND SIGNALS) REGULATIONS 2004 BR /2004 MERCHANT SHIPPING ACT : 35

owner, in relation to a ship, means the person or persons registered as owner of the ship, or, in the absence of registration, the person or persons

IMO MONITORING THE IMPLEMENTATION OF THE HNS CONVENTION: DEVELOPMENT OF A POSSIBLE DRAFT PROTOCOL TO THE CONVENTION TEXT OF THE DRAFT PROTOCOL

PRESS RELEASE. EUR 1,695, as compensation for damage to the Arctic Sunrise;

Third session of the Sub-Committee on Pollution Prevention and Response (15 to 19 February 2016)

REQUEST FOR THE PRESCRIPTION OF PROVISIONAL MEASURES SUBMITTED BY SAINT VINCENT AND THE GRENADINES

PCA Case Nº IN THE MATTER OF THE ARCTIC SUNRISE ARBITRATION. - before -

AGREEMENT BETWEEN DIREÇÃO-GERAL DE RECURSOS NATURAIS, SEGURANÇA E SERVIÇOS MARÍTIMOS AND [RECOGNIZED ORGANIZATION]

ASEAN & the South China Sea Disputes

Baltic Marine Environment Protection Commission

TRACECA Workshop Ratification of Conventions Part 1 - Background

THE MARINE POLLUTION MANAGEMENT ACT, 2002 ST. CHRISTOPHER AND NEVIS PART II - MANAGEMENT OF HAZARDOUS WASTES

MARITIME BOUNDARY DISPUTES AND ARTICLE 298 OF UNCLOS. Christine Sim 24 August 2017

The Merchant Shipping (Marine Pollution) Law 2001

IMO PLACES OF REFUGE. Report on places of refuge. Submitted by the Comité Maritime International (CMI)

Date: 05 Nov2015. Background. BohaiBay. garbage or to Marine. was. and issue ports security. crewmembers

INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR OIL POLLUTION DAMAGE. (Brussels, 29 November 1969)

PEACEFUL SETTLEMENT OF DISPUTES IN OCEAN CONFLICTS: DOES UNCLOS III POINT THE WAY?

Commonwealth of Dominica CDP102Rev02-1- International Maritime Regulations

Official Journal L 131, 28/05/2009 P

BAMAKO CONVENTION ON THE BAN OF THE IMPORT INTO AFRICA AND THE CONTROL OF TRANSBOUNDARY MOVEMENT AND MANAGEMENT OF HAZARDOUS WASTES WITHIN AFRICA

Pollution of Waters by Oil and Noxious Substances (Amendment) Act 1991

Proposal for a COUNCIL DECISION

at a lunch for diplomats 25 th November 2003 Shippingklubben, Oslo

UNITED NATIONS HEADQUARTERS, NEW YORK SEPTEMBER 2002

STATE RESPONSIBILITY MR. SANTIAGO VILLALPANDO. Santiago, Chile 24 April 19 May 2017

Official Journal of the European Union. (Acts whose publication is obligatory)

MEMORANDUM OF UNDERSTANDING ON PORT STATE CONTROL IN THE BLACK SEA REGION

STATEMENT BY JUDGE HUGO CAMINOS, OBSERVER OF THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA.

Florida Senate (Reformatted) SB 326 By Senator Constantine

Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region

RESOLUTION MEPC.65(37) (adopted on 14 September 1995) AMENDMENTS TO THE ANNEX OF THE PROTOCOL OF 1978 RELATING TO THE INTERNATIONAL CONVENTION FOR

State responsibility and State liability in international law. Sigmar Stadlmeier

BERMUDA MERCHANT SHIPPING (PREVENTION OF POLLUTION FROM NOXIOUS LIQUID SUBSTANCES IN BULK) REGULATIONS 2019 BR 17 / 2019

INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA (CASE NO.17)

INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

CME Provisions in BWM Convention

Possible ways to highlight to the international community the need for a new instrument regulating the laying and protection of submarine cables

OVERVIEW. Introduction Implementation Current Issues and Concerns Future Issues and Concerns Prospects for the Future

INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR OIL POLLUTION DAMAGE

IMO. Resolution A.973(24) Adopted on 1 December 2005 (Agenda item 9) CODE FOR THE IMPLEMENTATION OF MANDATORY IMO INSTRUMENTS

INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA STATEMENT BY MR. RÜDIGER WOLFRUM PRESIDENT OF THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

DISSENTING OPINION OF JUDGE COT

South China Sea: Realpolitik Trumps International Law

Liability and Compensation for Oil Pollution Damage Edition

INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR OIL POLLUTION DAMAGE,

PORT STATE CONTROL: A TOOL FOR SUSTAINABLE MANAGEMENT OF MARITIME SAFETY AND MARINE ENVIRONMENT

The Evolving Balance Between Coastal State Rights and High Seas Freedoms: Current Developments and Future Prospects ABLOS Monaco, Oct.

Legal obligations of the sponsoring State. Brussels, 5 June 2018 Prof. Ph. Gautier

AUTHORIZATION AND AGREEMENT GOVERNING THE DELEGATION OF STATUTORY FUNCTIONS FOR VESSELS REGISTERED IN CANADA. between THE MINISTER OF TRANSPORT.

Commonwealth of Dominica. International Maritime Registry

Marine Pollution Control Law. Decree No.34 of The Sultanate of Oman MARINE POLLUTION CONTROL LAW CHAPTER ONE

Transcription:

Centre for Oceans Law & Policy Global Challenges and Freedom of Navigation Panel VI: Balancing Marine Environment and Freedom of Navigation Responsibility of Flag States for Pollution of the High Seas Robert Beckman Director, Centre for International Law National University of Singapore 1

Question to be examined Are Flag States internationally responsible if vessels flying their flag pollute the high seas by dumping or illegal discharges? 2

General Principles Governing Ships on the High Seas Freedom of navigation is a freedom of the high seas Ships on the high seas are subject to the exclusive jurisdiction of the flag State No State may exercise jurisdiction over a foreign ship on the high seas without the consent of the flag State 3

State Responsibility for Pollution of the High Seas by Dumping 4

Global Rules and Standards on Ocean Dumping UNCLOS Article 210 1. States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment by dumping. 2. States shall take other measures as may be necessary to prevent, reduce and control such pollution. 6. National laws, regulations and measures shall be no less effective in preventing, reducing and controlling pollution than the global rules and standards. 5

Enforcement of Global Rules and Standards on Dumping UNCLOS Article 216 1. Laws and regulations adopted in accordance with this Convention and applicable international rules and standards established through competent international organizations or diplomatic conference for the prevention, reduction and control of pollution by dumping shall be enforced: (b) by the flag State with regard to vessels flying its flag 6

Global Rules and Standards on Ocean Dumping 1972 London Convention: Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter EIF 30 August 1975 / Parties: 87 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 EIF 24 March 2006 / Parties 42 Bottom Line: all parties to UNCLOS must have laws and regulations regulating or preventing the dumping waste in the high seas by vessels flying their flag 7

Article 48 of 2001 ILC Articles on the Responsibility of States Article 48. Invocation of Responsibility by a State other than an Injured State 1. Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: (a) The obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) The obligation breached is owed to the international community as a whole. 8

Remedies available to the State invoking responsibility 2. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State: a) Cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in accordance with article 30; and b) Performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached. 9

Invocation of UNCLOS Dispute Settlement Procedures UNCLOS Article 286 Any dispute concerning the interpretation or application of this Convention shall, where no settlement has been reached by recourse to the section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section In other words, the compulsory procedures entailing binding decisions can be unilaterally invoked by either party to the dispute 10

Responsibility for Dumping on the High Seas If a State Party to UNCLOS fails to pass laws and regulations governing the dumping of waste at sea, and a ship flying its flag dumps prohibited waste in the high seas, the flag State is responsible for its failure to regulate the activity Any State Party to UNCLOS can invoke the responsibility of the flag State If a dispute arises between the two States concerning the interpretation or application of Articles 210 and 216, the dispute can be referred to arbitration or adjudication as provided in section 2 of Part XV 11

State Responsibility for Pollution of the High Seas by Illegal Discharges of Oil or Noxious Substances 12

International Rules and Standards on Ship-Source Pollution UNCLOS Art 211 (1) States, acting through the competent international organization or general diplomatic conference, shall establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels and promote the adoption, in the same manner, wherever appropriate, of routeing systems designed to minimize the threat of accidents which might cause pollution of the marine environment,... Such rules and standards shall, in the same manner, be re-examined from time to time as necessary. 13

Flag States and International Rules and Standards UNCLOS Art. 211 (2) 2. States shall adopt laws and regulations for the prevention, reduction and control of pollution of the marine environment from vessels flying their flag or of their registry. Such laws and regulations shall at least have the same effect as that of generally accepted international rules and standards established through the competent international organization or general diplomatic conference. 14

Generally Accepted International Rules and Standards MARPOL Convention: International Convention for the Prevention of Pollution from Ships, 1973, which has been amended by the Protocols of 1978 and 1997 and kept updated by other amendments International Convention for the Safety of Life at Sea (SOLAS) International Bulk Chemical Code (IBC Code) 15

Annexes to MARPOL Annex I. Prevention of pollution by oil Annex II. Control of pollution by noxious liquid substances Annex III: Prevention of Pollution By Harmful Substances In Packaged Form Annex IV. Prevention of pollution by sewage from ships Annex V. Prevention of pollution by garbage from ships Annex VI. Regulations for the Prevention of Air Pollution from Ships 16

UNCLOS Article 217. Enforcement by Flag States 1. States shall ensure compliance by vessels flying their flag or of their registry with applicable international rules and standards... and shall accordingly adopt laws and regulations and take other measures necessary for their implementation. Flag States shall provide for the effective enforcement of such rules, standards, laws and regulations, irrespective of where a violation occurs. 17

UNCLOS Article 217. Enforcement by Flag States 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. 3. States shall ensure that vessels flying their flag or of their registry carry on board certificates required by and issued pursuant to international rules and standards referred to in paragraph 1. 18

UNCLOS Article 217. Enforcement by Flag States 6. States shall, at the written request of any State, investigate any violation alleged to have been committed by vessels flying their flag. If satisfied that sufficient evidence is available to enable proceedings to be brought in respect of the alleged violation, flag States shall without delay institute such proceedings in accordance with their laws. 19

Remedies for Illegal Discharges on the High Seas If a vessel of State A illegally discharges oil or noxious substances into the high seas in violation of the international rules established in UNCLOS and MARPOL, another State Party to UNCLOS can request the flag State to investigate The Flag State is required to inform the requesting State and the IMO of the action taken and its outcome If a dispute arises between the Flag State and the requesting State concerning the interpretation or application of the provisions of UNCLOS on vessel-source pollution, the requesting State could invoke the compulsory binding dispute settlement procedures in Section 2 of Part XV 20

Flag State Responsibility If a Flag State fails to adopt laws and regulations as required by Article 211, or if it fails to enforce such laws and regulations as required by Article 217, and as a result of such failure, ships flying its flag illegally discharge oil or noxious substances into the high seas, any State party to UNCLOS can invoke the responsibility of the flag State In such case, the analysis would be the same as in the case of pollution of the high seas by dumping 21

Conclusions 22

Conclusions It is often assumed that it is not possible to take measures against Flag States who do not take their responsibilities under UNCLOS seriously and whose vessels pollute the high seas by dumping or illegal discharges If States interested in protecting the marine environment of the high seas are willing to incur the cost, it is possible to invoke the responsibility of Flag States and hold them to account This requires States to utilize the provisions of UNCLOS together with the 2001 ILC Articles on the Responsibility of States for Internationally Wrongful Acts 23

Thanks for Your Attention Robert Beckman Director, Centre for International Law National University of Singapore Email: cildir@nus.edu.sg Website: www.cil.nus.edu.sg 24