The Precautionary Principle in Marine Environmental Law

With Special Reference to High Risk Vessels

Bénédicte Sage-Fuller

• Publisher: Routledge
• Year: 2013
• eBook ISBN: 9781135020019
• Edition: 1
• Topic: Law
• Subtopic: Commercial Law
• Index: Law

The book examines whether the jurisdiction of coastal States under international law can be extended to include powers of intervention towards vessels posing a significant risk to their coastal and marine environment, but which have not yet been involved in any incident or accident. The books sets out how it is that coastal State jurisdiction can indeed be seen as including powers of intervention towards High Risks Vessels before an incident or accident happens, on the basis of the precautionary principle. The precautionary principle requires taking action when a risk of damage to the environment is suspected, but cannot be confirmed scientifically.The book thus considers the potential opportunities for the coastal state under international law to regulate international shipping where they consider vessels to an unacceptable risk to the environment, in order to prevent or minimise the risk of occurrence of the accident or incident leading to damage. The book acknowledges that this puts into question some very old and established principles of the law of the sea, most importantly the principle of freedom of navigation. But Bénédicte Sage-Fuller contends that this change would itself be a consequence of the evolution, since the end of WWII, of on the one hand international law of the sea itself, and of international environmental law on the other hand.

1

High Risk Vessels

1.1 The protection of coastal States against risks posed by High Risk Vessels

The objective of this project is to determine the extent of the influence of the precautionary principle and the role it could play in extending the powers of coastal States in relation to ships posing a threat to their marine and coastal areas. For the purpose of this study, such ships posing a particular risk to the interests of coastal States will be referred to as High Risk Vessels,¹ defined as:

Vessels that may cause a threat to their crew, their cargo, the environment, the interests of coastal States through any combination of circumstances, such as structural or mechanical faults to the ship, nature of the cargo, inadequate crewing, severe weather conditions, proximity to navigational hazard regions and regions of environmental sensitivity, density of the surrounding maritime traffic.²

The definition of High Risk Vessels (HRV) includes elements intrinsic to the ships (the condition of the ships, their crew, cargo) and elements external to the ships (marine environment, sea and weather conditions, particular interests of coastal States, etc.). It is further noted that:

risks are caused by the design, construction and use of a vessel, and they may be aggravated by weather conditions, heavy traffic, and specific cargo to a level that is considered too high … The maintenance of the vessel as well as the competence of the crew are major issues affecting the risk of a vessel. Under certain circumstances the change of ownership or of the flag may also constitute an indication of additional risk.³

The international legal framework regulating the rights and powers of coastal States to monitor vessels in the waters under their jurisdiction is principally enshrined in the UN Convention on the Law of the Sea (UNCLOS).⁴ The protection of the marine environment by coastal States against risks posed by international shipping is thus governed by Part XII of UNCLOS, which covers ‘Protection and Preservation of the Marine Environment’, and by Parts II, V and VII respectively, regulating rights and duties of States in the territorial sea and contiguous zone, in the EEZ and on the high seas.

The determination of the jurisdictional rights of coastal States is dependent on the combination of two factors: on the one hand, the compliance by ships with international technical rules, and on the other hand, the sea area where they sail (internal waters, territorial sea, EEZ or high sea). This project sets out to demonstrate that the precautionary principle can act upon these jurisdictional rights of coastal States to extend them, and to allow proactive measures on the basis of precautionary thresholds of risk of damage to the marine environment.

Two European research projects, EMBARC⁵ and MarNIS,⁶ were co-funded, under FP5 and FP6 respectively, by the European Commission to precisely examine the reinforcement of coastal States’ capacities to protect their marine environment, from an operational and legal standpoint. Both these projects were carried out by research teams composed of European maritime safety agencies, the maritime units of several government departments throughout Europe, and specialised maritime consultancy offices. The lifetime of these projects coincided with major ship-pollution events that occurred on the French Atlantic Coast (the sinking of the Erika in 1999), and in the Bay of Biscay (the loss of the Prestige in 2002). These events, and the outcry of public opinion that ensued, had the effect of bringing into the limelight the problem of accidental ship-based pollution. EMBARC and MarNIS therefore evolved in a political environment favourable to the idea of expanding coastal States’ powers with a view to preventing marine pollution from ships. The results of these projects were tested and presented to several national marine government departments and maritime safety agencies and to the European Commission. All received them favourably. These results are essential to this book. Indeed, they constitute empirical evidence collected while working with stakeholders, and as such they support the doctrinal argument developed throughout the forthcoming chapters.

The MarNIS project provided advances in research in functionalities carried out by coastal maritime authorities towards ships, namely Search and Rescue (SAR), Vessel Traffic Management and Pollution Prevention and Abatement. In particular, MarNIS developed a system architecture for maritime operational services (MOS), which would combine these three functionalities. More effective coastal States’ support for safety, security and environmental protection can be achieved, according to the final project report, by shifting from remedial to proactive services. In order to achieve this, MarNIS recommended that there should be more ‘structured and harmonized cooperation between the member States [of the European Union], and exchange of information’.⁷ Significantly, it also recommended that the approach by European coastal States should ‘cover all public interests with respect to maritime traffic and transport’.⁸ MOS therefore would include SAR, OPRC (Oil Pollution Response Coordination), Maritime Assistance Services (MAS), Vessel Traffic Management (VTM), flag State responsibilities and assistance to other authorities competent for safety of life at sea, environmental protection, security, but also customs and public health. MarNIS recommended that these functions could be deployed in MOS Centres, with areas of operations well within the traditional jurisdictional powers of coastal States. However, what is of interest for the purpose of this book is that MarNIS also considered situations where a ship would be identified as a HRV and a coastal State would consider intervention outside the clear scope of UNCLOS. The possibility of intervention would be calculated in the context of a risk-management approach. VTM in this respect, if carried out at a MOS Centre, would fulfil three important functions. First, it would allow the consideration of dynamic environmental and other factors to enhance normal routeing measures based solely on AIS information. Second, it would improve ETA information for ships bound for European ports. Third, it would mean the MOS Centre would retrieve AIS information for regional depository centres. Based on information available through MOS Centres, coastal States would be in a position to identify High Risk Vessels and to anticipate incidents and accidents. On this basis, the question is whether they can take intervention measures in anticipation of such incidents or accidents.

Coastal State jurisdiction is limited by requirements of international law of the sea, therefore proactive monitoring and management of HRV is also limited. Where the risk-based approach of the MarNIS project would recommend intervention towards HRV, under various forms, commensurate with what is needed for coastal protection, intervention rights for coastal States are strictly regulated. The obstacle for VTM is therefore to define coastal jurisdictional powers in accordance with international law, including law of the sea, and also international environmental law.

The definition of what constitutes a High Risk Vessel is critical. Indeed, HRV, once identified, could trigger intervention by a coastal State. In order to place coastal intervention within the framework of the law of the sea, it is necessary that HRV are defined in accordance with legal criteria. Two approaches were considered successively by the EMBARC and MarNIS projects. The first approach, in EMBARC, was based on criteria used for Port State Control (PSC) to identify HRS. The advantage of using PSC criteria is that, as demonstrated below, they can be inserted in the general framework of UNCLOS. The second approach, in MarNIS, took into account the EMBARC method, but sought to improve it. Indeed, in addition to the methodology for identification of HRV under PSC agreements, the Paris Memorandum of Understanding (Paris MOU) in particular, MarNIS argues that data on casualties relating to ships must be included. Current PSC methodology involves different categories of criteria, but not casualties. MarNIS states carefully that ‘the approach described in this work, which is risk-oriented, is not in opposition to the one chosen by the Paris MOU but must be considered as complementary’.⁹

This issue of defining HRV is highly sensitive for coastal and flag States alike. The balance of powers between coastal and flag States is at stake, and States are careful not to make public statements that may be interpreted as their official position on the matter. The two research projects EMBARC and MarNIS included as participants maritime safety agencies of various European Member States. Yet, their participation cannot be equated with an official position statement about the issue of coastal State intervention. For example, in the context of the EMBARC project a survey document was circulated to the Port State Control authorities of Finland, Sweden, Norway, France, Ireland, Greece and Russia, asking a series of questions relating to Port State Control criteria and their suitability to identify High Risk Vessels.¹⁰ The results of this survey were published in 2005,¹¹ but anonymity as to the particular respondents was preserved. Similarly, in MarNIS, key participants in the project included maritime administrations from Belgium, the Netherlands, Norway, Sweden, the UK, France and Spain. The participation of these State administrations in the project cannot be interpreted as representing their official views. As though to emphasise this point, representatives of the Institut Français de Navigation and of the Norwegian Maritime Directorate included Additional Statements in an annex to the MarNIS Final Report, in which they clarify their position in relation to the concept of High Risk Vessels, and somehow distance themselves from the findings of the MarNIS project in this respect.¹²

In this context, the following sections will explain why on the one hand Port State Control criteria can be useful to identify High Risk Vessels in the framework of existing international law of the sea. State support and practice is important, and is explained from a theoretical point of view. On the other hand, the technical shortcomings of PSC identification of HRV as pointed out by MarNIS will be explained with a view to suggesting that the important considerations from a legal point of view are twofold. First, the law relating to HRV and coastal States’ jurisdiction should be based on sound scientific methods and criteria. Second, international law of the sea is organically enshrined in States’ will but also in such sound scientific methods and criteria. The two aspects are inextricably linked with one another, and with the approach advocated by the precautionary princip...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Preface
• Introduction
• 1. High Risk Vessels
• 2. Coastal States’ jurisdiction under the United Nations Convention on the Law of the Sea
• 3. Significance of the precautionary principle in marine law
• 4. Practical applications of the precautionary principle in marine law
• 5. Application of the precautionary principle to vessel-source pollution
• Conclusion
• Epilogue: prudence or precaution?
• Bibliography
• Index