International law, Sixth edition
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International Law MALCOLM N. SHAW
the Sea, chapter 15, and O’Connell, International Law of the Sea, vol. II, chapter 25. See
also below, chapter 15. t h e l aw o f t h e s e a 621 as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat of pollution of the sea by oil, following upon a maritime casualty or acts related to such a casualty, which may reasonably be expected to result in major harmful consequences. This provision came as a result of the Torrey Canyon incident in 1967 346 in which a Liberian tanker foundered off the Cornish coast, spilling mas- sive quantities of oil and polluting large stretches of the UK and French coastlines. As a last resort to prevent further pollution, British aircraft bombed the tanker and set it ablaze. The Convention on Intervention on the High Seas provided for action to be taken to end threats to the coasts of states, while the Convention on Civil Liability for Oil Pollution Damage, also signed in 1969 and which came into effect in June 1975, stipulated that the owners of ships causing oil pollution damage were to be liable to pay compensation. The latter agreement was supplemented in 1971 by the Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage which sought to provide for compensation in circum- stances not covered by the 1969 Convention and aid shipowners in their additional financial obligations. These agreements are only a small part of the web of treaties covering the preservation of the sea environment. Other examples include the 1954 Convention for the Prevention of Pollution of the Seas by Oil, with its series of amendments designed to ban offensive discharges; the 1972 Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft and the subsequent London Convention on the Dumping of Wastes at Sea later the same year; the 1973 Convention for the Prevention of Pollution from Ships; and the 1974 Paris Convention for the Prevention of Marine Pollution from Land-Based Sources. 347 Under the 1982 Convention nearly fifty articles are devoted to the pro- tection of the marine environment. Flag states still retain the competence to legislate for their ships, but certain minimum standards are imposed 346 6 ILM, 1967, p. 480. See also the Amoco Cadiz incident in 1978, e.g. Churchill and Lowe, Law of the Sea, p. 241, and the Aegean Sea and Braer incidents in 1992–3, e.g. G. Plant, ‘ “Safer Ships, Cleaner Seas”: Lord Donaldson’s Inquiry, UK Government’s Response and International Law’, 44 ICLQ, 1995, p. 939. 347 Also a variety of regional and bilateral agreements have been signed, Churchill and Lowe, Law of the Sea, pp. 263–4. 622 i n t e r nat i o na l l aw upon them. 348 It is also provided that states are responsible for the ful- filment of their international obligations concerning the protection and preservation of the marine environment and are liable in accordance with international law. States must also ensure that recourse is available in ac- cordance with their legal systems for prompt and adequate compensation or other relief regarding damage caused by pollution of the marine envi- ronment by persons under their jurisdiction. 349 States are under a basic obligation to protect and preserve the marine environment. 350 Article 194 of the 1982 Convention also provides that: 1. States shall take, individually or jointly as appropriate, all measures con- sistent with this Convention that are necessary to prevent, reduce and con- trol pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonise their policies in this connection. 2. States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention. 3. The measures taken pursuant to this Part shall deal with all sources of pollution of the marine environment. These measures shall include, inter alia, those designed to minimise to the fullest possible extent: (a) the release of toxic, harmful, or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping; (b) pollution from vessels, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional discharges, and regulating the design, construction, equipment, operation and manning of vessels; (c) pollution from installations and devices used in exploitation of the natural resources of the seabed and subsoil, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices; 348 See article 211. See also generally articles 192–237, covering inter alia global and regional co-operation, technical assistance, monitory and environmental assessment, and the de- velopment of the enforcement of international and domestic law preventing pollution. 349 Article 235. 350 Article 192. t h e l aw o f t h e s e a 623 (d) pollution from other installations and devices operating in the marine environment, in particular for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices. 4. In taking measures to prevent, reduce or control pollution of the marine environment, states shall refrain from unjustifiable interference with activities carried out by other states in the exercise of their rights and in pursuance of their duties in conformity with this Convention. 351 Straddling stocks 352 The freedom to fish on the high seas is one of the fundamental freedoms of the high seas, but it is not total or absolute. 353 The development of 351 See also the Mox case, the International Tribunal for the Law of the Sea, Provisional Measures Order of 3 December 2001, www.itlos.org/start2 en.html; the OSPAR award of 2 July 2003, see www.pca-cpa.org/upload/files/OSPAR%20Award.pdf; the arbitral tri- bunal’s suspension of proceedings, Order No. 3 of 24 June 2003 and Order No. 4 of 14 November 2003, see www.pca-cpa.org/upload/files/MOX%20Order%20no3.pdf and www.pca-cpa.org/upload/files/MOX%20Order%20No4.pdf and 126 ILR, pp. 257 ff. and 310 ff. See also the decision of the European Court of Justice of 30 May 2006, Case C- 459/03, Commission v. Ireland, 45 ILM, 2006, p. 1074, where the Court found that by instituting proceedings against the UK under the Law of the Sea Convention dispute settlement mechanisms, Ireland had breached its obligations under articles 10 and 292 of the European Community Treaty and articles 192 and 193 of the European Atomic Energy Treaty. 352 See e.g. Brown, International Law of the Sea, vol. I, p. 226; Churchill and Lowe, Law of Download 7.77 Mb. Do'stlaringiz bilan baham: |
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