This case study presents two critical questions: What are the dangers of exposing a distressed tanker to the open seas over extended period of time? To what extent would providing relief (access to port) to a ship in distress harm the coastal state rendering such assistance?
These two questions present one of the most controversial and pressing legal issue within law of the sea in the wake of high profile incidents of vessel-source pollution. The unwillingness of coastal states to grant access to their ports to vessels in distress at sea has attracted parallel opinions from different schools of thought. This could perhaps be attributed to the fact that UNCLOS (1982) which is considered as the constitution of the ocean; fails to provide an express legal order to matters relating to such access.
An analysis of the shortcomings within the 1982 LOSC on issues relating to refuge for ships in distress at sea forms the basis of this discussion. Build-up to the discussion will include a brief overview to the customary law perspective on issues of refuge for such ships and the international attitude to this issue through present state practices.
Table of content
Introduction
What defines a place of refuge for ships in international law
Access to ports for ships in distress at sea and customary international law
State practices on access to ports by ships in distress
LOSC 1982 and refuge for ships in distress at sea
Conclusion and recommendations
Bibliography
Introductory statement
Perhaps the aftermath of the MV Prestige vessel-source pollution would be less catastrophic had Spanish or Portuguese authorities granted the ship safe harbor in their respective ports. Despite repeated requests for a place of refuge by the ship master, neither Spain nor Portugal found it fit to admit MV Prestige. The decision to deny MV Prestige access to a port condemned the vessel to its fate 133 miles off the north-west coast of Spain. Considered as one of the worst environmental disasters in history, it recorded an approximate oil spill of 63,000 tones; contaminated a distance of 1900 kilometers of Spanish and French shoreline; and severely crippled fishing and tourism industries of Spain, France and Portugal.1
Out of fear of polluting their coastlines, Spain and Portugal chose not to sanction access to their ports for a ship with potential to cause grave and immediate danger to their marine and terrestrial environment. However, denying MV Prestige safe harbor did not sideline either the countries from the environmental and economic burdens caused after the vessel sank and spilled cargo in the sea. This nature of the MV Prestige case study presents two critical questions:
a) What are the dangers of exposing a distressed tanker to the open seas over extended period of time?
b) To what extent would providing relief (access to port) to a ship in distress harm the coastal state rendering such assistance?
These two questions present one of the most controversial and pressing legal issue within law of the sea in the wake of high profile incidents of vessel-source pollution. The unwillingness of coastal states to grant access to their ports to vessels in distress at sea has attracted parallel opinions from different schools of thought. This could perhaps be attributed to the fact that UNCLOS (1982) which is considered as the constitution of the ocean; fails to provide an express legal order to matters relating to such access.
An analysis of the shortcomings within the 1982 LOSC on issues relating to refuge for ships in distress at sea forms the basis of this discussion. Build-up to the discussion will include a brief overview to the customary law perspective on issues of refuge for such ships and the international attitude to this issue through present state practices.
What defines a place of refuge for ships in international law
The concept of what is now referred as a place of refuge has existed for over 200 years under various labels such as haven, sanctuary, asylum, harbor, place of safety, port of refuge and shelter. It is only during the last two centuries that, for various reasons, increased attention has been given to what it is and what it attempts to do.2
‘Place of refuge’ has received a number of definitions from various scholars in marine related disciplines. Because the environmental concerns form the central part of this discussion, the definition by the International Maritime Organization fits in context. In accordance to IMO guidelines, a ‘place of refuge’ represents a location where a ship in need of assistance can take action to enable it to stabilize its condition and reduce the hazards to navigation; as well as to protect human life and the environment.3 Practically, many will agree that suitable places of refuge are within the internal waters or territorial sea of a coastal state. Only ships in a situation that could give rise to loss of the vessel or an environmental or navigational hazard are to be granted a ‘place of refuge’ according to the IMO guidelines.4
Customary international law and places of refuge for ships in distress
In the 19th and early 20th century, it was generally accepted on a customary legal basis to allow ships in distress a right of entry into maritime ports. This is not the case in contemporary public international law today. Why the parallel positions? Scholars and legal jurists will attribute this shift to geopolitical events, increased demand of goods and technological evolution that made globalization a reality and changed the nature of the entire shipping industry.
As opposed to the 21st century, ships in the 19th and early 20th centuries were much smaller and didn’t carry inherently dangerous substances in bulk such as nuclear materials and toxic waste or chemicals. It was then possible for the regime of access to ports by ships in distress to attract uniform state practice on the basis of humanitarian concerns as a general principle of international law (Tanaka, 2015)5
However, concerns and reservations would be raised on issues relating to access to ports by ships in distress after World War II; that saw the rise of the industrial revolution movement. This saw the induction of an era where technological advancement and innovation launched several new types of vessels steadily growing in size. This meant two things; increased quantities of cargo being transported (including hazardous substances), and the use of heavy fuels for the propulsion of vessels. This shift of realities made states apprehensive about the risks associated with marine pollution within their territorial waters, a reservation that crippled the development of access into ports by ships in distress into customary law by failing to meet three principles criteria for customary law development; state practice, consistency of practice and duration of practice.
Present state practices on access to ports for ships in distress
While it is true that most ports are open to foreign merchant vessels, the freedom of entry is only a presumption, subject to the coastal state’s decision to close its ports for whatever reason and for whichever vessel it chooses to.6 Whether or not a request for refuge in a distress scenario at sea is granted largely depends on the coastal state’s discretion to the relative merits of its interests. In most cases if not all, whenever the interests of the ship are subordinate to those of the coastal state, a call of distress is often denied. Such interests may range from economic to environmental. For example, MV Erika (1999) and MV Prestige (2002) share a commonality for which they were denied access to ports. The hazardous nature of cargo on board.
States such as Canada have adopted legislation permitting their authorities to deny access into internal waters as a regulatory measure.7 The lack of a customary legal basis on the subject of the right of access to ports by foreign vessels in distress, together with indirect or rather vague provisions in existing multilateral conventions has seen states concluding bilateral and trilateral treaties to open their ports to each other. In relation to national treatment clauses, under a draft 2006 Trilateral Agreement between South Africa, Brazil and India, each Party accords “vessels of the other Party in its ports the same treatment as is accorded to its own vessels in matters of access to ports…”
LOSC 1982 and the regime of refuge to ships in distress at sea?
This section covers the central theme of this discussion. It intends to answer the question relating to whether or not the 1982 Law of the Sea Convention sufficiently addresses issues of safe refuge to ships in distress at sea.
Through an analysis of existing provisions in LOSC and general rules of international law, one can conclude that LOSC is not directly ‘concerned’ with internal waters of coastal states leave alone ships in distress. There are no precise provisions relating to access to ports in general.
LOSC introduces a number of ambitious stipulations that obligates coastal states and flag states to pursue the preservation, conservation and protection of the environment. Not granting entry to a port for a ship in distress would be interpreted as an act contrary to the good-will of preserving and protecting marine environment. For instance, Art. 195 of LOSC requires states to take measures so as to prevent, reduce and control the transfer of damage or hazards from one area to another. However, lack of direct obligations to compel coastal states to provide a ‘place of refuge’ for ships in distress carrying hazardous substances has seen vessels being ordered to move out to the sea away from the coast. Considering that discharge of harmful substances into the sea may already be happening by the time a ship in distress requests refuge (MV Prestige), many coastal state choose to send the already discharging vessel back to the sea in violation of Art. 195 LOSC.
Principe of Preventive Action exists as one of the most fundamental principles of international environmental law. Under this principle, a state may be under an obligation to prevent damage to the environment within its jurisdiction through a range of measures; including taking appropriate regulatory and administrative measures to reduce, limit or control activities that might cause or risk such damage.8 It is correct to conclude that this principle justifies a state’s position to deny a ship in distress (with potential to cause massive environmental harm to the marine ecosystem) entry into its port. It is equally correct to conclude that such denial blocks an opportunity to possibly prevent, contain or stabilize an impending source of vessel pollution. Art. 211 (3) and Art. 25 (2) of UNCLOS operate within the framework of the preventive action principle. Neither of these two provisions grant foreign ships (including ships in distress) express rights of access to a port. It simply requires communication as a prerequisite for entry. Article 211(3) does not grant a right of access but simply requires communication of any conditions for entry.
As mentioned earlier, it is evident that LOSC is not directly concerned with the affairs of internal waters and had no intention of regulating ports; as they are found within internal waters of a coastal state which is subject to territorial sovereignty by virtue of Art. 8 and Art. 11 of UNCLOS. This provision place no obligations for coastal states to keep their ports open for entry by ships in distress but instead gives them liberty to either allow or deny such ships entry.
In accordance to Art. 19 (2) LOSC, a ship in distress no longer proceeding on a direct passage through the territorial sea to a place of refuge could be viewed as being involved in an activity “not having a direct bearing on passage” in as far as the right of innocent passage is concerned. Again we the see Art. 25 (2) LOSC acting as an avenue through which a ship in distress can be denied entry into internal waters. Morrison (2012) argues that the combined impact of Articles 18 and 19 of LOSC could have the effect of preventing a ship in distress from accessing a place of refuge in the internal waters of a coastal State.9
Lack of direct provisions in the law of the sea convention dealing with access to a place of refuge by ships in distress entirely undermines the primary objective Part XII of UNCLOS depicts. Art. 192 LOSC obligates states to protect and preserve the marine environment. The totality of a marine environmental scope covers both areas of marine spaces under and beyond national jurisdiction. So, even though Spain and Portugal might argue that they acted within the limits established by international law of the sea, denying MV Prestige safe harbor could be interpreted as a failure in their duties as stipulated in Articles 192, 194 and 195 of UNCLOS. School of thoughts in favor of granting access to ships in distress based on these three articles claim that the rest of Part XII to LOSC does not assist the concept of environmental necessity for ships in distress. In fact the more specific obligations set out in Part XII apply in a positive sense to flag States and only in a discretionary sense to coastal states.10 Far from creating a duty on coastal States to grant access to ships in distress, Part XII of LOSC arguably does the opposite. It continues and codifies the existing law in relation to the responsibilities of flag States and imposes positive duties on them.11 LOSC extends these powers to include the right of the coastal State to investigate and enforce pollution offfences that have occurred outside its jurisdiction if the ship is voluntarily within its jurisdiction. Art. 218 of LOSC presents an enforcement package by port states to environmental violations committed by a foreign ship in distress that has been granted access to the port. However, the wording of this stipulation depicts then non-obligatory nature of the provision. Personally, I found Art 218 to be the only provision in LOSC to provide pragmatic solutions to ‘places of refuge’ for ships in distress. According to Art. 218 (1) of LOSC, a port state may undertake investigations when a vessel is voluntarily within a port or at an off-shore terminal (it is assumed that this is after access to port has been granted by a coastal state); where their exists burden of proof, such an investigation may result criminal proceedings in respect to any discharge from a vessel in question outside the internal waters, territorial sea or the exclusive economic zone. The language of this provision clearly paves way for liability claims by a coastal state in case a ship it offered refuge caused any form of pollution outside its internal water; a discharge that later negatively impacted the marine ecosystem of its internal waters.
[...]
1 Veronica Frank, ‘ Consequences of the Prestige Sinking for European and International Law ’ (2005) International Journal of Marine and Coastal Law 1, 2-3
2 Aldo Chircop , ‘Ships in Distress, Environmental Threats to Coastal State and Places of Refuge: New Directions for an Ancient Regime’ (2002)
3 IMO Assembly, 23rd Session, Resolution A 949 (23) Guidelines on Places of Refuge for Ships in Need of Assistance adopted on 5 December 2003 (IMO Guidelines)
4 IMO (n 3)
5 Yoshifumi Tanaka, The International Law of the Sea (2nd edn, Cambridge University Press 2015)
6 Louise de la Fayette, ‘Access to Ports in International Law’ (1996) The International Journal of Marine and Coastal Law Vol. 11, No. 1
7 Canada Shipping Act 2001
8 Philippe Sands and others, Principles of International Environmental Law (3rd edn, Cambridge University Press 2012) 201
9 Anthony P. Morris, ‘ Places of Refuge for Ships in Distress: Problems and Methods of Resolutions’ in David Freestone, Legal Aspects of Sustainable Development: Volume 12 (Martinus Nijhoff Publishers 2012)
10 Christopher Mooradian, ‘Protecting Sovereign Rights: The Case for Increased Coastal State Jurisdiction over Vessel-Source Pollution in the Exclusive Economic Zone’ (2002)
11 Morris (n 8)
- Citar trabajo
- Ronald Bulimu (Autor), 2019, Refuge for ships in distress at sea. Limitations within Law of the Sea Convention, Múnich, GRIN Verlag, https://www.grin.com/document/1006819
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