Maritime Safety and Environmental Protection in Maritime Safety and Environmental Protection in Europe: a role for international courts and tribunals?Europe: a role for international courts and tribunals?

Ph. GautierPh. Gautier

• UNCLOS  (part XV)UNCLOS  (part XV)

• Other conventionsOther conventions

• European Court of European Court of Justice Justice

Environmental CasesEnvironmental Cases• 1956 1956 Arbitration – Lake Lanoux (France v. Spain)• 1993 ICJ - Gabčíkovo-Nagymaros Project (Hungary/Slovakia)• 11995 ICJ - 995 ICJ - Fisheries Jurisdiction (Spain Fisheries Jurisdiction (Spain v.v. Canada) Canada)• 1999 1999

- - ITLOS - Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), ITLOS - Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional MeasuresProvisional Measures- - Annex VII Arbitration - Southern Bluefin Tuna Case (New Zealand and Australia v. Japan) Annex VII Arbitration - Southern Bluefin Tuna Case (New Zealand and Australia v. Japan)

• 2000 2000 ITLOS - Case concerning the Conservation and Sustainable Exploitation of ITLOS - Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community)Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community)

• 2001 2001 - - ITLOS - The MOX Plant Case (Ireland v. United Kingdom), Provisional MeasuresITLOS - The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures- - Annex VII Arbitration - MOX Plant Case (Ireland v. United Kingdom)Annex VII Arbitration - MOX Plant Case (Ireland v. United Kingdom)- - OSPAR Arbitration - MOX (Ireland v. United Kingdom)OSPAR Arbitration - MOX (Ireland v. United Kingdom)

• 2003 2003 - - ITLOS - Case concerning Land Reclamation by Singapore in and around the Straits of ITLOS - Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional MeasuresJohor (Malaysia v. Singapore), Provisional Measures- - Annex VII Arbitration - Case concerning Land Reclamation by Singapore in and around Annex VII Arbitration - Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore)the Straits of Johor (Malaysia v. Singapore)- Arbitration - Iron Rhine (Belgium v. Netherlands)- Arbitration - Iron Rhine (Belgium v. Netherlands)

• 2006 ICJ - Pulp Mills on the River Uruguay (Argentina 2006 ICJ - Pulp Mills on the River Uruguay (Argentina v.v. Uruguay) Uruguay)• 2008 ICJ - 2008 ICJ - Aerial Herbicide Spraying (Ecuador Aerial Herbicide Spraying (Ecuador v.v. Colombia) Colombia)• 2010 2010

- - Annex VII Arbitration - Annex VII Arbitration - Marine Protected Area around the Chagos Archipelago (Mauritius v. United Kingdom)- - ICJ - Whaling in the Antarctic (Australia ICJ - Whaling in the Antarctic (Australia v.v. Japan) Japan)

• 2011 ICJ - Construction of a Road in Costa Rica along the San Juan River (Nicaragua 2011 ICJ - Construction of a Road in Costa Rica along the San Juan River (Nicaragua v.v. Costa Costa Rica) Rica)

Article 287Article 287Choice of procedureChoice of procedure

1.1. When signing, ratifying or acceding to this Convention or at When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means of a written declaration, one or more of the following means for the settlement of disputes concerning the means for the settlement of disputes concerning the interpretation or application of this Convention:interpretation or application of this Convention:

(a)(a) the International Tribunal for the Law of the the International Tribunal for the Law of the Sea established in accordance with Annex VI;Sea established in accordance with Annex VI;

(b)(b) the International Court of Justice;the International Court of Justice;(c)(c) an arbitral tribunal constituted in accordance an arbitral tribunal constituted in accordance

with Annex VII;with Annex VII;(d)(d) a special arbitral tribunal constituted in a special arbitral tribunal constituted in

accordance with Annex VIII for one or more of the accordance with Annex VIII for one or more of the categories of disputes specified therein. (…)categories of disputes specified therein. (…)

3.3. A State Party, which is a party to a dispute not covered by a A State Party, which is a party to a dispute not covered by a declaration in force, shall be deemed to have accepted declaration in force, shall be deemed to have accepted arbitration in accordance with Annex VII.arbitration in accordance with Annex VII.

Limitations and exceptionsLimitations and exceptions

• Article 297 (limitations): certain disputes Article 297 (limitations): certain disputes relating to scientific research and relating to scientific research and fisheries in the EEZ fisheries in the EEZ

• Article 298 (optional exceptions): Article 298 (optional exceptions): disputes relating to maritime disputes relating to maritime delimitation, military activities, and in delimitation, military activities, and in respect of which the United Nations respect of which the United Nations Security Council is exercising its Security Council is exercising its functions under the Charterfunctions under the Charter

Mox Case ECJ (2006) C-459/03Mox Case ECJ (2006) C-459/03

111 . Thus, with regard to the head of complaint alleging failure to meet the111 . Thus, with regard to the head of complaint alleging failure to meet the

obligation to carry out a proper assessment of the environmental impact of all obligation to carry out a proper assessment of the environmental impact of all of theof the

activities associated with the MOX plant on the marine environment of the Irish activities associated with the MOX plant on the marine environment of the Irish Sea,Sea,

based on Article 206 of the Convention, it must be stated that this matter is thebased on Article 206 of the Convention, it must be stated that this matter is the

subject of Directive 85/337 (...)subject of Directive 85/337 (...)

114    The same observation also holds true for the complaint which Ireland 114    The same observation also holds true for the complaint which Ireland bases on Articles 192, 193, 194, 207, 211 and 213 of the Convention, in so bases on Articles 192, 193, 194, 207, 211 and 213 of the Convention, in so far as that complaint relates to the obligation to take the measures far as that complaint relates to the obligation to take the measures necessary to prevent, reduce and control pollution in the Irish Sea.necessary to prevent, reduce and control pollution in the Irish Sea.

117    Furthermore, with regard to the complaint derived from Articles 123 and 117    Furthermore, with regard to the complaint derived from Articles 123 and 197 of the Convention concerning the lack of cooperation on the part of the 197 of the Convention concerning the lack of cooperation on the part of the United Kingdom and, in particular, its refusal to provide Ireland with certain United Kingdom and, in particular, its refusal to provide Ireland with certain information, such as the full version of the PA report, it must be held that information, such as the full version of the PA report, it must be held that the provision of information of this kind comes within the scope of Council the provision of information of this kind comes within the scope of Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment (...).information on the environment (...).

Case concerning the Conservation and Sustainable Exploitation of Swordfish Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European CommunityStocks in the South-Eastern Pacific Ocean (Chile/European Community) )

On behalf of Chile:On behalf of Chile:(a) whether the European Community has complied with its (a) whether the European Community has complied with its obligations under theobligations under theConvention, especially articles 116 to 119 thereof, to ensure Convention, especially articles 116 to 119 thereof, to ensure conservation ofconservation ofswordfish, in the fishing activities undertaken by vessels flying swordfish, in the fishing activities undertaken by vessels flying the flag of any of itsthe flag of any of itsmember States in the high seas adjacent to Chile’s exclusive member States in the high seas adjacent to Chile’s exclusive economic zone;economic zone;

On behalf of the European Community:On behalf of the European Community:

(…)(…)

(e) whether the Chilean Decree 598 which purports to apply Chile’s (e) whether the Chilean Decree 598 which purports to apply Chile’s

Unilateral conservation measures relating to swordfish on the high Unilateral conservation measures relating to swordfish on the high seasseas

is in breach of, is in breach of, Inter alia, Inter alia, articles 87, 89 and 116 to 119 of thearticles 87, 89 and 116 to 119 of the

Convention;Convention;

Annex IX, art. 5Annex IX, art. 5

1. The instrument of formal confirmation or of accession of an1. The instrument of formal confirmation or of accession of an

international organization shall contain a declaration specifying international organization shall contain a declaration specifying the matters governed by this Convention in respect of which the matters governed by this Convention in respect of which competence has been transferred to the organization by its competence has been transferred to the organization by its member States which are Parties to this Convention. member States which are Parties to this Convention.

3. States Parties which are member States of an international 3. States Parties which are member States of an international organization which is a Party to this Convention shall be organization which is a Party to this Convention shall be presumed to have competence over all matters governed by presumed to have competence over all matters governed by this Convention in respect of which transfers of competence to this Convention in respect of which transfers of competence to the organization have not been specifically declared, notified the organization have not been specifically declared, notified or communicated by those States under this article.or communicated by those States under this article.

5. Any State Party may request an international organization and 5. Any State Party may request an international organization and its member States which are States Parties to provide its member States which are States Parties to provide Information as to which, as between the organization and its Information as to which, as between the organization and its member States, has competence in respect of any specific member States, has competence in respect of any specific question which has arisen. The organization and the member question which has arisen. The organization and the member States concerned shall provide this information within a States concerned shall provide this information within a reasonable time. (...)reasonable time. (...)

Annex IX, art. 6Annex IX, art. 6

2.2. Any State Party may request an Any State Party may request an international organization or its international organization or its member States which are States member States which are States Parties for information as to who has Parties for information as to who has responsibility in respect of any specific responsibility in respect of any specific matter. The organization and the matter. The organization and the member States concerned shall member States concerned shall provide this information. Failure to provide this information. Failure to provide this information within a provide this information within a reasonable time or the provision of reasonable time or the provision of contradictory information shall result contradictory information shall result in joint and several liability.in joint and several liability.

Compulsory jurisdiction of the Compulsory jurisdiction of the TribunalTribunal

•Prompt release (Convention, article 292)

•Provisional measures (Convention, article 290, paragraph 5)

•Disputes concerning deep seabed area submitted to the Seabed disputes Chamber under article 187 of the Convention

UNCLOS, art. 73 Enforcement of laws and UNCLOS, art. 73 Enforcement of laws and regulations of the coastal Stateregulations of the coastal State

1.1. The coastal State may, in the exercise of The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve its sovereign rights to explore, exploit, conserve and manage the living resources in the and manage the living resources in the exclusive economic zone, take such measures, exclusive economic zone, take such measures, including boarding, inspection, arrest and including boarding, inspection, arrest and judicial proceedings, as may be necessary to judicial proceedings, as may be necessary to ensure compliance with the laws and ensure compliance with the laws and regulations adopted by it in conformity with this regulations adopted by it in conformity with this Convention.Convention.

2.2. Arrested vessels and their crews shall Arrested vessels and their crews shall be promptly released upon the posting of be promptly released upon the posting of reasonable bond or other security.reasonable bond or other security.

[…][…]

THE THE ““GRAND PRINCEGRAND PRINCE”” CASE CASE

• Belize vs. FranceBelize vs. France

• Prompt releasePrompt release

• Judgment of 20 April Judgment of 20 April 20012001

Article 226 (Investigation of foreign vessels)Article 226 (Investigation of foreign vessels)1.1. (a)(a) States shall not delay a foreign vessel longer States shall not delay a foreign vessel longer than is essential for purposes of the investigations provided than is essential for purposes of the investigations provided for in articles 216, 218 and 220. […] for in articles 216, 218 and 220. […]

(b)(b) If the investigation indicates a violation of If the investigation indicates a violation of applicable laws and regulations or international rules and applicable laws and regulations or international rules and standards for the protection and preservation of the marine standards for the protection and preservation of the marine environment, environment, release shall be made promptly subject to release shall be made promptly subject to reasonable procedures such as bonding or other reasonable procedures such as bonding or other appropriate financial security.appropriate financial security.

(c)(c) Without prejudice to applicable international Without prejudice to applicable international rules and standards relating to the seaworthiness of vessels, rules and standards relating to the seaworthiness of vessels, the release of a vessel may, whenever it would present an the release of a vessel may, whenever it would present an unreasonable threat of damage to the marine environment, unreasonable threat of damage to the marine environment, be refused or made conditional upon proceeding to the be refused or made conditional upon proceeding to the nearest appropriate repair yard. Where release has been nearest appropriate repair yard. Where release has been refused or made conditional, refused or made conditional, the flag State of the vessel the flag State of the vessel must be promptly notified, and may seek release of must be promptly notified, and may seek release of the vessel in accordance with Part XV.the vessel in accordance with Part XV.

Article 220Article 220Enforcement by coastal StatesEnforcement by coastal States

6.6. Where there is clear objective evidence that a vessel Where there is clear objective evidence that a vessel navigating in the exclusive economic zone or the territorial navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, sea of a State has, in the exclusive economic zone, committed a violation referred to in paragraph 3 resulting in committed a violation referred to in paragraph 3 resulting in a discharge causing major damage or threat of major a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal damage to the coastline or related interests of the coastal State, or to any resources of its territorial sea or exclusive State, or to any resources of its territorial sea or exclusive economic zone, that State may, economic zone, that State may, subject to section 7subject to section 7, provided , provided that the evidence so warrants, institute proceedings, that the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws.including detention of the vessel, in accordance with its laws.

7.7. Notwithstanding the provisions of paragraph 6, whenever Notwithstanding the provisions of paragraph 6, whenever appropriate procedures have been established, either appropriate procedures have been established, either through the competent international organization or as through the competent international organization or as otherwise agreed, whereby compliance with requirements for otherwise agreed, whereby compliance with requirements for bonding or other appropriate financial security has been bonding or other appropriate financial security has been assured, the coastal State if bound by such procedures shall assured, the coastal State if bound by such procedures shall allow the vessel to proceedallow the vessel to proceed..

Obligations of flag StatesObligations of flag StatesArticle 94 (3): Article 94 (3): ““ Every State shall take such Every State shall take such measures for ships flying its flag as are necessary measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to:to ensure safety at sea with regard, inter alia, to:(a)(a) the construction, equipment and the construction, equipment and seaworthiness of ships;seaworthiness of ships;(b)(b) the manning of ships, labour conditions and the manning of ships, labour conditions and the training of crews, taking into account the the training of crews, taking into account the applicable international instruments; (…) applicable international instruments; (…) ””

Article 217 (2): Article 217 (2): ““States shall, in particular, take States shall, in particular, take appropriate measures in order to ensure that appropriate measures in order to ensure that vessels flying their flag or of their registry are vessels flying their flag or of their registry are prohibited from sailing, until they can proceed to prohibited from sailing, until they can proceed to sea in compliance with the requirements of the sea in compliance with the requirements of the international rules and standards referred to in international rules and standards referred to in paragraph 1, including requirements in respect of paragraph 1, including requirements in respect of design, construction, equipment and manning of design, construction, equipment and manning of vesselsvessels””..

Provisional measuresProvisional measures(article 290)(article 290)• 1. If a dispute has been duly submitted to a court or 1. If a dispute has been duly submitted to a court or

tribunal which considers that prima facie it has tribunal which considers that prima facie it has jurisdiction … the court or tribunal may prescribe any jurisdiction … the court or tribunal may prescribe any provisional measures which it considers appropriate provisional measures which it considers appropriate under the circumstances under the circumstances to preserve the respective to preserve the respective rights of the parties to the dispute or to prevent rights of the parties to the dispute or to prevent serious harm to the marine environmentserious harm to the marine environment, pending the , pending the final decision.final decision.

• 5. 5. Pending the constitution of an arbitral tribunal to Pending the constitution of an arbitral tribunal to which a dispute is being submitted …, any court or which a dispute is being submitted …, any court or tribunal agreed upon by the parties or, failing such tribunal agreed upon by the parties or, failing such agreement within two weeks from the date of the agreement within two weeks from the date of the request for provisional measures, the International request for provisional measures, the International Tribunal for the Law of the Sea …may prescribe, Tribunal for the Law of the Sea …may prescribe, modify or revoke provisional measures in accordance modify or revoke provisional measures in accordance with this article if it considers that prima facie the with this article if it considers that prima facie the tribunal which is to be constituted would have tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so jurisdiction and that the urgency of the situation so requires. …requires. …

Southern Bluefin Tuna (New Zealand v. Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional Japan; Australia v. Japan), Provisional

Measures (1999)Measures (1999)

THE MOX PLANT CASE THE MOX PLANT CASE

• Ireland vs. United Ireland vs. United KingdomKingdom

• Provisional Provisional measures (ITLOS)measures (ITLOS)

• Annex VII arbitral Annex VII arbitral tribunal tribunal

THE STRAITS OF JOHOR CASETHE STRAITS OF JOHOR CASE

• Malaysia vs. SingaporeMalaysia vs. Singapore

• Provisional measuresProvisional measures

• Order of 8 October Order of 8 October 20032003

MOX Plant, Ireland v UK (2001) MOX Plant, Ireland v UK (2001) THE TRIBUNAL, 1. Unanimously,THE TRIBUNAL, 1. Unanimously,

Prescribes, pending a decision by the Annex VII Prescribes, pending a decision by the Annex VII arbitral tribunal, the following provisional measure arbitral tribunal, the following provisional measure under article 290, paragraph 5, of the Convention:under article 290, paragraph 5, of the Convention:

Ireland and the United Kingdom shall cooperate and Ireland and the United Kingdom shall cooperate and shall, for this purpose, enter into consultations shall, for this purpose, enter into consultations forthwith in order to:forthwith in order to:

(a) exchange further information with regard to (a) exchange further information with regard to possible consequences for the Irish Sea arising out possible consequences for the Irish Sea arising out of the commissioning of the MOX plant;of the commissioning of the MOX plant;

(b) monitor risks or the effects of the operation of (b) monitor risks or the effects of the operation of the MOX plant for the Irish Sea;the MOX plant for the Irish Sea;

(c) devise, as appropriate, measures to prevent (c) devise, as appropriate, measures to prevent pollution of the marine environment which might pollution of the marine environment which might result from the operation of the MOX plant.result from the operation of the MOX plant.

Disputes concerning other agreements (part XV)

• Agreement to Promote Compliance with International Conservation andManagement Measures by Fishing Vessels on the High Seas; 24 November1993;• Straddling Fish Stocks Agreement; 4 August 1995;• 1996 Protocol to the Convention on the Prevention of Marine Pollution

byDumping of Wastes and Other Matter, 1972; 7 November 1996;• Framework Agreement for the Conservation of the Living Marine

Resourceson the High Seas of the South-Eastern Pacific; 14 August 2000;• Convention on the Conservation and Management of Highly Migratory

FishStocks in the Western and Central Pacific Ocean; 5 September 2000;• Convention on the Conservation and Management of Fishery Resources

inthe South-East Atlantic Ocean; 20 April 2001;• Convention on the Protection of the Underwater Cultural Heritage;2 November 2001;• Convention on Future Multilateral Cooperation in North-East AtlanticFisheries; 18 November 1980, as amended;• IMO Wreck Removal Convention, 2007.

OSPAR, art. 9 Access to informationOSPAR, art. 9 Access to information1. The Contracting Parties shall ensure that their competent authorities 1. The Contracting Parties shall ensure that their competent authorities

are required to make available the information described in are required to make available the information described in paragraph 2 of this Article to any natural or legal person, in paragraph 2 of this Article to any natural or legal person, in response to any reasonable request, without that person's having to response to any reasonable request, without that person's having to prove an interest, without unreasonable charges, as soon as prove an interest, without unreasonable charges, as soon as possible and at the latest within two months. possible and at the latest within two months.

2. The information referred to in paragraph 1 of this Article is any 2. The information referred to in paragraph 1 of this Article is any available information in written, visual, aural or data-base form available information in written, visual, aural or data-base form on on the state of the maritime area, on activities or measures adversely the state of the maritime area, on activities or measures adversely affecting or likely to affect it and on activities or measures affecting or likely to affect it and on activities or measures introduced in accordance with the Conventionintroduced in accordance with the Convention. .

3. The provisions of this Article shall not affect the right of Contracting 3. The provisions of this Article shall not affect the right of Contracting Parties, in accordance with their national legal systems and Parties, in accordance with their national legal systems and applicable international regulations, to provide for a request for such applicable international regulations, to provide for a request for such information to be refused where it affects: information to be refused where it affects:

(a) the confidentiality of the proceedings of public authorities, (a) the confidentiality of the proceedings of public authorities, international relations and national defence; international relations and national defence;

(...)(...)

4. The reasons for a refusal to provide the information requested must 4. The reasons for a refusal to provide the information requested must be given. be given.

OSPAR arbitration:OSPAR arbitration:« (A) Estimated annual production capacity of the MOX facility; (B) « (A) Estimated annual production capacity of the MOX facility; (B) Time taken to reach this capacity; (C) Sales volumes; (D) Probability Time taken to reach this capacity; (C) Sales volumes; (D) Probability of achieving higher sales volumes; (E) Probability of being able to win of achieving higher sales volumes; (E) Probability of being able to win contracts for recycling fuel in ‘‘significant quantities’’; (F) Estimated contracts for recycling fuel in ‘‘significant quantities’’; (F) Estimated sales demand; (G) Percentage ofsales demand; (G) Percentage ofplutonium already on site; (H) Maximum throughput figures; (Iplutonium already on site; (H) Maximum throughput figures; (I) Life ) Life span of the MOX facilityspan of the MOX facility; (J) Number of employees; (K) Price of MOX ; (J) Number of employees; (K) Price of MOX fuel; (L) Whether, and to what extent, there are firm contracts to fuel; (L) Whether, and to what extent, there are firm contracts to purchase MOX from Sellafield; (M) purchase MOX from Sellafield; (M) Arrangements for transport of Arrangements for transport of plutonium to, and MOX from,plutonium to, and MOX from,Sellafield; (N) Likely number of such transports Sellafield; (N) Likely number of such transports »»

ITLOS: ‘‘Initial and Non-Exhaustive List of Questions put ITLOS: ‘‘Initial and Non-Exhaustive List of Questions put by Ireland to theUnited Kingdom in the context of the by Ireland to theUnited Kingdom in the context of the Provisional Measure prescribed by the International Provisional Measure prescribed by the International Tribunal in its Order of 3 December 2001Tribunal in its Order of 3 December 2001””

-- Projected operational life of the MOX plant Projected operational life of the MOX plant

- Transport of nuclear fuel from and to the Mox Transport of nuclear fuel from and to the Mox plantplant

OSPAR Art. 32 Settlement of disputesOSPAR Art. 32 Settlement of disputes

6. (a) The arbitral tribunal shall decide 6. (a) The arbitral tribunal shall decide according to the rules of international according to the rules of international law and, in particular, those of the law and, in particular, those of the Convention. Convention.

UNCLOS Art. 293 Applicable lawUNCLOS Art. 293 Applicable law

1.1. A court or tribunal having jurisdiction A court or tribunal having jurisdiction under this section shall apply this under this section shall apply this Convention and other rules of Convention and other rules of international law not incompatible with international law not incompatible with this Convention. (...)this Convention. (...)

““... The first duty of the tribunal is to apply ... The first duty of the tribunal is to apply the OSPAR Convention. An international the OSPAR Convention. An international tribunal ... Will also apply customary tribunal ... Will also apply customary international law and general principles international law and general principles unless and to the extent that the Parties unless and to the extent that the Parties have created a lex specialis. Even then, it have created a lex specialis. Even then, it must defer to a relevant”must defer to a relevant”

““Interpreting Article 32 (6) (a) otherwise would Interpreting Article 32 (6) (a) otherwise would

transform it into an unqualified and Comprehensivetransform it into an unqualified and Comprehensive

jurisdictional regime, in which there would be no jurisdictional regime, in which there would be no

limit ratione materiae to the jurisdiction of a tribunallimit ratione materiae to the jurisdiction of a tribunal

established under the OSPAR Convention”established under the OSPAR Convention”

Southern Bluefin Tuna Cases (Australia and New Zealand v. Southern Bluefin Tuna Cases (Australia and New Zealand v. Japan) Japan)

Convention for the Conservation of Southern Bluefin Tuna Convention for the Conservation of Southern Bluefin Tuna (1993)(1993)

Article 16 : “1. If any dispute arises between two or more Article 16 : “1. If any dispute arises between two or more of the Parties concerning the interpretation or of the Parties concerning the interpretation or implementation of this Convention, those Parties shall implementation of this Convention, those Parties shall consult among themselves with a view to having the consult among themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other conciliation, arbitration, judicial settlement or other peaceful means of their own choice. 2. Any dispute of peaceful means of their own choice. 2. Any dispute of this character not so resolved shall, with the consent in this character not so resolved shall, with the consent in each case of all parties to the dispute, be referred for each case of all parties to the dispute, be referred for settlement to the International Court of Justice or to settlement to the International Court of Justice or to arbitration; but failure to reach agreement on reference arbitration; but failure to reach agreement on reference to the International Court of Justice or to arbitration to the International Court of Justice or to arbitration shall not absolve parties to the dispute from the shall not absolve parties to the dispute from the responsibility of continuing to seek to resolve it by any responsibility of continuing to seek to resolve it by any of the various peaceful means referred to in paragraph of the various peaceful means referred to in paragraph 1 above. (...)”1 above. (...)”

SBT arbitrationSBT arbitration

““To find that, in this case, there is a To find that, in this case, there is a dispute actually arising under dispute actually arising under UNCLOS which is distinct from the UNCLOS which is distinct from the dispute that arose under the CCSBT dispute that arose under the CCSBT would be artificial.” would be artificial.”

““Article 16 of the 1993 Convention as Article 16 of the 1993 Convention as an agreement by the Parties to seek an agreement by the Parties to seek settlement of the instant dispute by settlement of the instant dispute by peaceful means of their own choice”peaceful means of their own choice”

Article 281Article 281Procedure where no settlement has been reached Procedure where no settlement has been reached

by the partiesby the parties

1.1. If the States Parties which are parties to a dispute If the States Parties which are parties to a dispute concerning the interpretation or application of concerning the interpretation or application of this Convention have agreed to seek settlement this Convention have agreed to seek settlement of the dispute by a peaceful means of their own of the dispute by a peaceful means of their own choice, the procedures provided for in this Part choice, the procedures provided for in this Part apply only where no settlement has been reached apply only where no settlement has been reached by recourse to such means and the agreement by recourse to such means and the agreement between the parties does not exclude any further between the parties does not exclude any further procedure.procedure.

2.2. If the parties have also agreed on a time‑limit, If the parties have also agreed on a time‑limit, paragraph 1 applies only upon the expiration of paragraph 1 applies only upon the expiration of that time‑limit.that time‑limit.

European Court and potential conflicts European Court and potential conflicts between international law and European lawbetween international law and European law

It is clear from Article 300(7) EC that It is clear from Article 300(7) EC that the Community institutions are the Community institutions are bound by agreements concluded by bound by agreements concluded by the Community and, consequently, the Community and, consequently, that those agreements have primacy that those agreements have primacy over secondary Community over secondary Community legislation (legislation (Intertanko e.a. (Case C-308/06) , para. 42)

Article 230Article 230

1. Monetary penalties only may be imposed with respect to1. Monetary penalties only may be imposed with respect to

violations of national laws and regulations or applicable violations of national laws and regulations or applicable

international rules and standards for the prevention, reductioninternational rules and standards for the prevention, reduction

and control of pollution of the marine environment, committed and control of pollution of the marine environment, committed

by foreign vessels beyond the territorial sea.by foreign vessels beyond the territorial sea.

2. Monetary penalties only may be imposed with respect to 2. Monetary penalties only may be imposed with respect to

violations of national laws and regulations or applicableviolations of national laws and regulations or applicable

international rules and standards for the prevention, reduction international rules and standards for the prevention, reduction

and control of pollution of the marine environment, committedand control of pollution of the marine environment, committed

by foreign vessels in the territorial sea, except in the case of aby foreign vessels in the territorial sea, except in the case of a

wilful and serious act of pollution in the territorial sea.wilful and serious act of pollution in the territorial sea.(…)(…)

Marpol 73/78 Marpol 73/78

44      44      First, the Community must be bound by those First, the Community must be bound by those rules (see Joined Cases 21/72 to 24/72 rules (see Joined Cases 21/72 to 24/72 International Fruit Company and OthersInternational Fruit Company and Others [1972] [1972] ECR 1219, paragraph 7).ECR 1219, paragraph 7).

(…)(…)

50      50      Since the Community is not bound by Marpol Since the Community is not bound by Marpol 73/78, the mere fact that Directive 2005/35 has 73/78, the mere fact that Directive 2005/35 has the objective of incorporating certain rules set out the objective of incorporating certain rules set out in that Convention into Community law is likewise in that Convention into Community law is likewise not sufficient for it to be incumbent upon the not sufficient for it to be incumbent upon the Court to review the directive’s legality in the light Court to review the directive’s legality in the light of the Convention.of the Convention.

Marpol 73/78Marpol 73/78

- Legal situation of member States vis-Legal situation of member States vis-à-vis Marpol?à-vis Marpol?

- Customary lawCustomary law

- Art. 220 and its effect on the UEArt. 220 and its effect on the UE

Article 220 Article 220 Enforcement by coastal StatesEnforcement by coastal States1.1. When a vessel is voluntarily within a port or at an off‑shore When a vessel is voluntarily within a port or at an off‑shore

terminal of a State, that State may, subject to section 7, terminal of a State, that State may, subject to section 7, institute proceedings in respect of any violation of its laws institute proceedings in respect of any violation of its laws and regulations adopted in accordance with this Convention and regulations adopted in accordance with this Convention or applicable international rules and standards for the or applicable international rules and standards for the prevention, reduction and control of pollution from vessels prevention, reduction and control of pollution from vessels when the violation has occurred within the territorial sea or when the violation has occurred within the territorial sea or the exclusive economic zone of that State.the exclusive economic zone of that State.

2.2. Where there are clear grounds for believing that a vessel Where there are clear grounds for believing that a vessel navigating in the territorial sea of a State has, during its navigating in the territorial sea of a State has, during its passage therein, violated laws and regulations of that State passage therein, violated laws and regulations of that State adopted in accordance with this Convention or applicable adopted in accordance with this Convention or applicable international rules and standards for the prevention, international rules and standards for the prevention, reduction and control of pollution from vessels, that State, reduction and control of pollution from vessels, that State, without prejudice to the application of the relevant provisions without prejudice to the application of the relevant provisions of Part II, section 3, may undertake physical inspection of the of Part II, section 3, may undertake physical inspection of the vessel relating to the violation and may, where the evidence vessel relating to the violation and may, where the evidence so warrants, institute proceedings, including detention of the so warrants, institute proceedings, including detention of the vessel, in accordance with its laws, subject to the provisions vessel, in accordance with its laws, subject to the provisions of section 7. (...)of section 7. (...)

Intertanko e.a. (case C-308/06)

45      Second, the Court can examine the validity of Second, the Court can examine the validity of Community legislation in the light of an international treaty Community legislation in the light of an international treaty only where the nature and the broad logic of the latter do only where the nature and the broad logic of the latter do not preclude this and, in addition, the treaty’s provisions not preclude this and, in addition, the treaty’s provisions appear, as regards their content, to be unconditional and appear, as regards their content, to be unconditional and sufficiently precise sufficiently precise (…)

64      In those circumstances, it must be found that UNCLOS In those circumstances, it must be found that UNCLOS does not establish rules intended to apply directly and does not establish rules intended to apply directly and immediately to individuals and to confer upon them rights immediately to individuals and to confer upon them rights or freedoms capable of being relied upon against States, or freedoms capable of being relied upon against States, irrespective of the attitude of the ship’s flag State.irrespective of the attitude of the ship’s flag State.

65     It follows that the nature and the broad logic of UNCLOS It follows that the nature and the broad logic of UNCLOS prevent the Court from being able to assess the validity of a prevent the Court from being able to assess the validity of a Community measure in the light of that Convention.Community measure in the light of that Convention.

UNCLOSUNCLOSArticle 17 Right of innocent passageArticle 17 Right of innocent passage

Subject to this Convention, ships of all States, whether coastal orSubject to this Convention, ships of all States, whether coastal or

land‑locked, enjoy the right of innocent passage through the land‑locked, enjoy the right of innocent passage through the territorial sea.territorial sea.

Article 110, paragraph 3 Right of visit

3.3. If the suspicions prove to be unfounded, and provided that the If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have shall be compensated for any loss or damage that may have been sustained.been sustained.

Article 111, paragraph 8 Right of hot pursuit

8.8. Where a ship has been stopped or arrested outside the Where a ship has been stopped or arrested outside the territorial sea in circumstances which do not justify the territorial sea in circumstances which do not justify the exercise of the right of hot pursuit, it shall be compensated for exercise of the right of hot pursuit, it shall be compensated for any loss or damage that may have been thereby sustainedany loss or damage that may have been thereby sustained

UNCLOSUNCLOSArticle 97 Penal jurisdiction in matters of collision or any other Penal jurisdiction in matters of collision or any other

incident of navigationincident of navigation

1. In the event of a collision or any other incident of navigation 1. In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of administrative authorities either of the flag State or of the State of which such person is a national.which such person is a national.

Article 73, paragraph 3 : 3.3. Coastal State penalties for violations of fisheries laws and Coastal State penalties for violations of fisheries laws and

regulations in the exclusive economic zone may not include regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment.the States concerned, or any other form of corporal punishment.

Article 230, paragraph 1

1.1. Monetary penalties only may be imposed with respect to Monetary penalties only may be imposed with respect to violations of national laws and regulations or applicable violations of national laws and regulations or applicable international rules and standards for the prevention, reduction and international rules and standards for the prevention, reduction and control of pollution of the marine environment, committed by control of pollution of the marine environment, committed by foreign vessels beyond the territorial sea.foreign vessels beyond the territorial sea.

21 December 2011 - Case C‑366/1021 December 2011 - Case C‑366/10To what extent principles of customary international law and To what extent principles of customary international law and

provisions of provisions of international treaties may be relied upon in the context of a reference international treaties may be relied upon in the context of a reference

for for a preliminary ruling on the validity of European a preliminary ruling on the validity of European directive 2003/87/CE directive 2003/87/CE to to include aviation activities in the scheme for greenhouse gas emission include aviation activities in the scheme for greenhouse gas emission allowance trading within the Communityallowance trading within the Community

““(b)      the principle of customary international law that no State may (b)      the principle of customary international law that no State may validly purport to subject any part of the high seas to its validly purport to subject any part of the high seas to its sovereignty;”sovereignty;”

[Article 89 Invalidity of claims of sovereignty over the high seas[Article 89 Invalidity of claims of sovereignty over the high seas

No State may validly purport to subject any part of the high seas to its No State may validly purport to subject any part of the high seas to its sovereignty.]sovereignty.]

““(c)      the principle of customary international law of freedom to fly (c)      the principle of customary international law of freedom to fly over the high seas;”over the high seas;”

[Article 87 “Freedom of the high seas ...comprises, inter alia, both for [Article 87 “Freedom of the high seas ...comprises, inter alia, both for coastal and land‑locked States:coastal and land‑locked States: (1) (b) freedom of overflight;](1) (b) freedom of overflight;]

Case C‑366/10Case C‑366/10104    These three principles are regarded as embodying 104    These three principles are regarded as embodying

the current state of customary international maritime the current state of customary international maritime and air law and, moreover, they have been respectively and air law and, moreover, they have been respectively codified in Article 1 of the Chicago Convention (see, on codified in Article 1 of the Chicago Convention (see, on the recognition of such a principle, the judgment of the the recognition of such a principle, the judgment of the International Court of Justice of 27 June 1986 in International Court of Justice of 27 June 1986 in Military Military and Paramilitary Activities in and against Nicaragua and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports (Nicaragua v. United States of America), I.C.J. Reports 19861986, p. 392, paragraph 212), in Article 2 of the Geneva , p. 392, paragraph 212), in Article 2 of the Geneva Convention of 29 April 1958 on the High Seas (Convention of 29 April 1958 on the High Seas (United United Nations Treaty SeriesNations Treaty Series, Vol. 450, p. 11) (see also, on the , Vol. 450, p. 11) (see also, on the recognition of this principle, the judgment of the recognition of this principle, the judgment of the Permanent Court of International Justice of 7 September Permanent Court of International Justice of 7 September 1927 in 1927 in the Case of the S.S ‘Lotus’the Case of the S.S ‘Lotus’, PCIJ 1927, Series A, , PCIJ 1927, Series A, No 10, p. 25) and No 10, p. 25) and in the third sentence of Article 87(1) of in the third sentence of Article 87(1) of the United Nations Convention the United Nations Convention on the Law of the Sea, on the Law of the Sea, signed in Montego Bay on 10 December 1982, which signed in Montego Bay on 10 December 1982, which entered into force on 16 November 1994 and was entered into force on 16 November 1994 and was concluded and approved on behalf of the European concluded and approved on behalf of the European Community by Council Decision 98/392/EC of 23 March Community by Council Decision 98/392/EC of 23 March 1998 (OJ 1998 L 179, p. 1).1998 (OJ 1998 L 179, p. 1).

Case C‑366/10Case C‑366/10

110    However, since a principle of customary 110    However, since a principle of customary international law does not have the same degree international law does not have the same degree of precision as a provision of an international of precision as a provision of an international agreement, judicial review must necessarily be agreement, judicial review must necessarily be limited to the question whether, in adopting the limited to the question whether, in adopting the act in question, the institutions of the European act in question, the institutions of the European Union made manifest errors of assessment Union made manifest errors of assessment concerning the conditions for applying those concerning the conditions for applying those principles (...).principles (...).

17 January 2012 (Case C‑347/10) Reference for a Preliminary Ruling , 17 January 2012 (Case C‑347/10) Reference for a Preliminary Ruling , Regulation (EC) 1408/71 (Social Security - Worker employed on gas- Regulation (EC) 1408/71 (Social Security - Worker employed on gas-

drilling platform on the continental shelf adjacent to the drilling platform on the continental shelf adjacent to the Netherlands Netherlands ))

33      It follows from Article 77 of the Convention on the Law of the Sea 33      It follows from Article 77 of the Convention on the Law of the Sea that the coastal State exercises over the continental shelf sovereign that the coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural rights for the purpose of exploring it and exploiting its natural resources. Those rights are exclusive in the sense that if the coastal resources. Those rights are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without its express resources, no one may undertake these activities without its express consent.consent.

34      In accordance with Article 80 of the Convention on the Law of the 34      In accordance with Article 80 of the Convention on the Law of the Sea, in conjunction with Article 60 thereof, the coastal State has the Sea, in conjunction with Article 60 thereof, the coastal State has the exclusive right to construct the artificial islands, installations and exclusive right to construct the artificial islands, installations and structures on the continental shelf, to authorise them and to regulate structures on the continental shelf, to authorise them and to regulate their construction, operation and use. The coastal State has exclusive their construction, operation and use. The coastal State has exclusive jurisdiction over such artificial islands, installations and structures.jurisdiction over such artificial islands, installations and structures.

35      Since a Member State has sovereignty over the continental shelf 35      Since a Member State has sovereignty over the continental shelf adjacent to it — albeit functional and limited sovereignty (see, to that adjacent to it — albeit functional and limited sovereignty (see, to that effect, Case C‑111/05 effect, Case C‑111/05 Aktiebolaget NNAktiebolaget NN [2007] ECR I‑2697, paragraph [2007] ECR I‑2697, paragraph 59) — work carried out on fixed or floating installations positioned on 59) — work carried out on fixed or floating installations positioned on the continental shelf, in the context of the prospecting and/or the continental shelf, in the context of the prospecting and/or exploitation of natural resources, is to be regarded as work carried exploitation of natural resources, is to be regarded as work carried out in the territory of that State for the purposes of applying EU law out in the territory of that State for the purposes of applying EU law

ConclusionsConclusions

- Contribution of Part XV - Contribution of Part XV

- comprehensive mechanism- comprehensive mechanism

- jurisprudence- jurisprudence

- Role of settlement of dispute mechanisms Role of settlement of dispute mechanisms included in other conventions (interpretation)included in other conventions (interpretation)

- Role of ECJ (Validity/interpretation/direct Role of ECJ (Validity/interpretation/direct applicability)applicability)