Continued from last week
States bordering the straits in question are not to hamper or suspend transit passage which is, however, subject to exceptions. Thus although there is no formal requirement for ‘innocent’ transit passage, the effect of articles 38 and 39 would appear to be to render transit passage subject to the same constraints.
Under article 45 the regime of innocent passage will apply with regard to straits used for international navigation excluded from the transit passage provisions by article 38(1) and to international straits between a part of high seas or economic zone and the territorial sea of a foreign state.
In such cases there will be no suspension of the right to innocent passage (45(2)). The regime of transit passage specifically allows for passage of aircraft and probably for underwater submarines, while there are fewer constraints on conduct during passage and less power for the coastal state to control passage than in the case of innocent passage. Transit passage cannot be suspended for security or indeed any other reasons.
It is unclear whether the right of transit has passed into customary law. Practice is as yet ambiguous (Shaw (2003) p 514). Some states have provided explicitly for rights of passage through international straits. When the UK extended its territorial sea in 1987 to 12 miles, one of the consequences was that high sea corridor through the Straits of Dower disappeared. The following year, an agreement was signed with France which related to the delimitation of the territorial sea in the Straits of Dower and a joint declaration was issued in which both governments recognised:
“The rights of unimpeded transit passage for merchant vessels, state vessels and in particular, warships following their normal mode of navigation as well as the right of overflight for aircraft, in the Straits of Dower. It is understood that in accordance with the principles governing this regime under the rules of international law, such passage will be exercised in a continuous and expeditious manner.”
Marine pollution
Marine pollution can arise from a variety of sources including the operation of shipping, dumping at sea, activities on the sea board and the effects of pollution originating on the land and entering the seas.
Article 24 of the 1958 Convention on the High Seas called on states to draw up regulations to prevent the pollution of the seas by the discharge of oil or dumping of radioactive waste, while article 1 of the Convention on the Fishing and Conservation of the Living Resources of the High Seas, of the same year declared that all states had the duty to adopt or cooperate with other states in adopting such measures as may be necessary for the conservation of the living resources of the high seas. Although these provisions have not proved an unqualified success, they have been reinforced by an interlocking series of additional agreements covering the environmental protection of the seas.
Under the 1982 Convention, nearly 50 articles are devoted to the protection of the marine environment. Flags states still retain the competence to legislate for their ships but certain minimum standards are imposed upon them. It is also provided that states are responsible for the fulfillment of their international obligations concerning the protection and preservation of the maritime environment and are liable in accordance with international law.
States must also ensure that recourse is available in accordance with their legal systems for prompt and adequate compensation or other relief regarding damage caused by pollution of the marine environment by persons under their jurisdiction. States are under a basic obligation to protect and preserve the maritime environment. Here article 194 of the 1982 Convention is also important.
Article 211 (2) of the Convention on the Law of the Sea, 1982 provides that the states are to legislate for the prevention, reduction and control of pollution of the marine environment from vessels flying their flag or of their registry. Such rules are to have the same effect at least as that of generally accepted international rules and standards established through the competent international organisation or general diplomatic conference.
States are also to ensure that the ships of their nationality or of their registry comply with applicable international rules and standards and with domestic rules governing the prevention, reduction and control of pollution.
In addition, coastal states have jurisdiction physically to inspect and where the evidence so warrants, commence proceedings against ships in their territorial waters where there are clear grounds for believing that the ship concerned has violated domestic or international pollution regulations.
A state in whose port a vessel is may take legal proceedings against that vessel not only where it is alleged to have violated that state’s pollution laws or applicable international rules in its territorial sea or economic zone, (Article 220(1)) but also in respect of any discharge outside its internal waters, territorial sea or exclusive economic zone in violation of applicable international rules and standards (article 218).
Pollution from ships
The International Convention for the Prevention of Pollution of the Sea by Oil, 1954 basically prohibits the discharge of oil within 50 miles of land and has been essentially superseded by the International Convention for the Prevention of Pollution from Ships, 1973 (Known as MARPOL Convention, this was modified by Protocols of 1978 and 1997 and has been further amended) which is concerned with all forms of non- accidental pollution from ships apart from dumping.
In Annexes and other amendments and Protocols to the Convention detailed standards are laid down covering oil, noxious liquid substances in bulk, harmful substances carried by sea in packaged form, sewage and garbage. The Convention covers ships flying the flag of, or operated under the authority of a state party, but does not apply to warships or state owned ships used only on governmental non commercial service.
Where an accident takes place, the Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969 permits states parties to take such measures on the high seas 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. This was extended by a Protocol of 1973 to cover pollution from substances other than oil.
The International Convention on Salvage, 1969 seeks to integrate environmental factors into the salvage rewards system. An International Convention on Oil Pollution Preparedness, Response and Co-operation was signed in London in November, 1990, with the purpose of ensuring prompt and effective action in the event of a pollution accident. It requires ships to carry detailed plans for dealing with pollution emergencies.
Pollution accidents must be reported without delay and in the event of a serious accident, other states likely to be affected must be informed and details given to the International Maritime Organization. National and regional systems for dealing with such accidents are encourgaged and the contracting parties agree to co-operate and provide advisory services, technical support and equipment at the request of other parties. (See, e.g. Bonn Agreement for Co-operation in Dealing with Pollution of the North Sea by Oil, 1969).
As far as liability is concerned, the Convention on Civil Liability for Oil Pollution Damage, 1969 provides that where oil escaping from a ship causes damage on the territory or territorial sea of a contracting party, the ship owner is strictly liable for such damage, which includes the costs of both preventive measures and further loss or damage caused by such measures. (Except where the damage results from war or acts of God; is wholly caused by an act or omission done as 3rd party with intend to cause damage; or where the damage is wholly caused by the negligent or other wrongful act of any government or other authority responsible for the maintenance and navigational aids; see articles II and III.
See also the Convention on Civil Liability for Oil Pollution damage resulting from Explorations and Exploitation of Seabed Mineral Resources, 1977, which establishes the liability of the operator of an installation under the jurisdiction of a party for pollution damage resulting from incidents taking place beyond the coastal water line).
This liability is limited, however, unless the pollution is the result of the fault of the ship owner (Article V). The ship owner must maintain insurance or other financial security to cover its liability. Claims may be brought in the courts of party in which loss or damage has occurred or preventive measures taken and the judgments of such courts are generally recognisable and enforceable in the courts of all parties.
The 1969 Convention was amended by the Protocol on Liability, 1992, which includes in the definition of damage compensation for impairment of the environment provided that this is limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken. The Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage was adopted in 1971 and enables compensation to be paid in certain cases not covered by Civil Liability Convention.
The Convention and Protocols of 1976 and 1984 were superseded by a Protocol of 1992 and the Convention ceased to be in force as from 24 May 2002. The 1992 Protocol established a separate, 1992 International Oil Pollution Compensation Fund, known as the 1992 Fund (Amendments adopted in 2000 raised the amounts of compensation). (See, P. Birnie and A. Boyle, International Law and the Environment, 2ndedn, Oxford, 2002. R. Churchill and A.V. Lowe, The Law of the Sea, 3rdedn. Manchester, 1999.
Sri Lanka and the Pollution Prevention Zone
The Maritime Zones Law of 1976 (by section 7 (1)) provides for the establishment of a pollution prevention zone. It states that such zone shall lie adjacent to the territorial sea and within such zone the relevant Minister shall take steps to control and prevent pollution and preserve the ecological balance. Under the Maritime Zones Proclamation, the limits of this zone were set at a distance of 200 nautical miles from the baselines from which the territorial sea is measured. Although various IMCO sponsor conventions had made provision for the control of pollution, it was only in 1981 that specific provision regarding marine pollution was made in Sri Lanka legislation, with the passage of the Marine Pollution Prevention Act.
The Marine Pollution Prevention Act of 1981
The preamble to the Act as amended by Act No. 35 of 2008 states that it is ‘An Act to provide for the prevention, reduction and control of pollution in Sri Lanka’s water; to give effect to international conventions for the prevention of pollution of the sea and for matters connected with or incidental thereto.’ The main features of the Act are imposition of criminal liability on the master of a ship or owner of an installation or land from which oil or pollutants have escaped into Sri Lanka waters, for which a fine may be imposed, and the imposition of civil liability where such escape has resulted in damage. To be continued next week.
Provision is also made for preventive measures such as carrying of record books relating to oil and pollutants and restrictions on transfer of oil to or from a ship. Where there is threat of pollution as a result of a maritime casualty, the Minister concerned has very wide powers including that of the sinking or destruction of the ship. The Act also gives authorised person powers to inspect and survey as well as board ships, also to order any ship to proceed out of Sri Lanka waters where he suspects on reasonable grounds that the ship fails to comply with any regulations made under the Act or under the grounds of poor weather where the poor conditions of the ship itself may result in pollution.
The Act also provides for power to detain a ship where there are reasonable grounds to believe that the ship has discharged oil or other pollutants. This provision now may be subjected to the conditions relating to prompt release of a vessel on posting of bond which apply to the exclusive economic zone, as the two zones are co-extensive. Where a fine has been imposed on the owner or master, which has not been paid, the offending ship may be sold and the fine recovered.
Powers of arrest are also conferred upon authorised persons. Under the Act, the Minister is given power to implement international conventions relating to marine pollution, which the Government of Sri Lanka may ratify, accept, accede to or approve. Later the Marine Environmental Protection Authority was set up in 2008. Sri Lanka’s marine pollution prevention law is also supplemented by the various international conventions on control of pollution, as also by the provisions of the 1982 Convention.
International seabed
In 1969, the UN General Assembly adopted resolution 2574 (XXIV) calling for a moratorium on deep seabed activities and a year later Declaration of Principles Governing the Seabed and Ocean Floor and the Subsoil Thereof, beyond the limits of National Jurisdiction (‘the Area’) was adopted. This provided that the Area and its resources were the ‘common heritage of mankind’ and could not be appropriated and that no rights at all could be acquired over it except in conformity with an international regime to be established to govern its exploration and exploitation. To be continued
Last week’s edition of the series had inadvertently been numbered as Part 3 whereas it should have read as Part 5. The error is regretted.
