Intervention on the High Seas in Cases of Pollution Casualties (Agustin Blanco-Bazán)
INTERVENTION IN THE HIGHS SEAS IN CASES OF MARINE POLLUTION CASUALTIES
Agustín Blanco-Bazán
8.1 Introduction
The right of a coastal State to intervene within its territorial sea to counteract accidental pollution caused by foreign ships is widely accepted as an entitlement related to that State’s sovereignty over the belt of sea adjacent to its land territory and its internal waters. In this case, limitations to coastal State sovereignty are drawn by the universally accepted treaty rules governing innocent passage.
However, the right to intervene beyond the territorial sea is acknowledged only as an exceptional remedy related to the concept of self-defence, in this case the need to protect vital maritime living and non-living resources and coastal interests against imminent and grave risks of pollution resulting from an accident involving foreign ships.
Historically, most accidents occurring beyond the territorial sea did not pose a pollution risk justifying intervention by the coastal State on grounds of self-defence against pollution, although this intervention could take place at the request of the flag State of the ship involved in an accident or for overwhelming humanitarian reasons, such as the need to save human lives in danger on board a ship in distress. This situation changed as a result of the risk created by supertankers carrying increasing quantities of heavy crude oil in bulk. If accidentally released in large quantities this type of oil could damage resources within an extensive sea area, including resources within the territorial sea, even if the ship in distress was far beyond its limits.
Oil spill incidents causing massive pollution of sea areas began occurring in the mid- sixties of the twentieth century, but only the Torrey Canyon incident (1967) triggered the process towards enshrining in treaty law the right of intervention by a coastal State beyond the boundaries of its territorial sea. The need to adopt treaty regulations in this regard became a pressing one, as a result of the transboundary damage provoked by this incident along the coasts of the United Kingdom and France. Further incidents affecting the coast of Western Europe have since led to similar interventions by one or more coastal States affected. Among them, mention should be made of the Amoco Cadiz (1978), Erika (1999), and Prestige (2002).
Features of the right to intervene, and procedures for its exercise, were first enshrined in the International Convention relating to the Intervention on the High Seas in cases of Oil Pollution Casualties1 (the ‘Intervention Convention’), adopted in 1969. The scope of this treaty was expanded to substances other than oil by a Protocol adopted in 1973.
The United Nations Convention on the Law of the Sea2 (UNCLOS) recognizes the right of intervention by a coastal State beyond its territorial sea in its Article 221.
While the legality of the right of intervention is now universally acknowledged by reference to both the Intervention Convention and UNCLOS, its implementation frequently leads to conflicts of interests. Very frequently, measures taken by a coastal State in the face of an emergency have become the source of legal action aimed at establishing whether the authorities and the coastguard services acted correctly and in accordance with international and municipal law in the implementation of intervening measures. Such measures include not only consultation with all States likely to be affected by a contaminating spill, but also private parties directly and indirectly involved in the incident, such as the ship owner, the shipmaster, the crew, the salvors, and the insurer. Following the Prestige incident, the question of whether the intervening coastal State should or should not grant refuge to a ship in distress has become a major issue of contention in connection with the exercise of the right of intervention.
The following sections explain the treaty law provisions regulating the exercise of coastal State intervention beyond territorial boundaries. Some comments will then be made regarding the way in which the right of intervention can be regulated into the domestic law of coastal States, so as to ensure that any emergency compelling intervention can be counteracted within the limits of a regulatory framework able to avoid legal uncertainties.
8.2 The Intervention Convention and UNCLOS Article 221: The EEZ factor
In the field of international law of the sea, the right of a coastal State to intervene beyond its territorial sea was first regulated by the International Convention relating to the Intervention on the High Seas in cases of Oil Pollution Casualties (the ‘Intervention Convention’). This multilateral treaty was adopted on 29 November 1969 by the International Legal Conference on Marine Pollution Damage convened by IMCO (now IMO) and held in Brussels.
The scope of this treaty was extended to pollution casualties other than oil by the Protocol Relating to the Intervention on the High Seas in Cases of Pollution by Substances other than Oil. The Protocol was adopted on 2 November 1973 by the International Conference on Marine Pollution convened in London by the Inter-Governmental Maritime Consultative Organization (IMCO).
Years later, this right of intervention became regulated by Article 221 (1) of UNCLOS. This provision echoes the main features of the right of intervention by the coastal States regulated by the Intervention Convention of 1969 and its Protocol of 1973, in respect of incidents involving, respectively, a major discharge of oil or of substances other than oil.
A major difference between the Intervention Convention and UNCLOS Article 221 reflects the consequences of the incorporation into UNCLOS of the notion of the Exclusive Economic Zone (EZZ). While the Intervention Convention defines the right to intervene beyond the territorial sea as a right of intervention ‘in the high seas’, UNCLOS Article 221 defines the right of the coastal State to intervene within a legal and geographical context fundamentally different, namely to intervention ‘beyond the territorial sea’ without any further distinction, thus including not only the high seas but the EEZ as well.
The importance of this distinction is obvious. In the EEZ the hybrid status of the coexistence of sovereign rights over natural resources with a residual high sea status otherwise, works in favour of a robust type of coastal State intervention: up to 200 miles from the coastline the coastal State can intervene to protect resources which have a similar status as those within the territorial sea. Hence, for most coastal States, the high seas addressed by the Intervention Convention has become, up to 200 miles from the coast, a sea zone over which it has sovereign jurisdiction to exploit and defend its natural resources.
An important question to be considered is whether the Intervention Convention has been superseded by Article 221 of UNCLOS (Measures to avoid pollution arising from maritime casualties) or whether both the Intervention Convention and UNCLOS Article 221 can be read together, so that the old Intervention Convention can provide a residual or added value to the application of UNCLOS Article 221. This question is particularly relevant for any domestic lawmaker in countries party to both treaties.
8.3 Historical Background Leading to the Adoption of the Intervention Convention
The Intervention Convention was adopted in the wake of the first major maritime casualty involving a supertanker carrying heavy crude oil. The Torrey Canyon ran aground on 18 March 1967 beyond the territorial sea around the Southwest coast of England. The coastal State intervened only ten days later, by means of bombing the wreck and making the oil blaze. By then the oil spill had progressed to become a major environmental catastrophe: nearly 100,000 tonnes of crude oil were estimated to have spilled into the sea, causing the first man-made environmental catastrophe around the South Coast of England and the West Coast of France.
It is difficult to understand today why a treaty was needed to regulate a right that amounted to no more than self-defence. Why, indeed, should States need a treaty to justify intervention beyond their boundaries when the purpose of such intervention was justified by the need to counteract the effects of a catastrophic event threatening to destroy its vital coastal interests? The answer is that the Torrey Canyon was the first great man-made catastrophe, and accordingly rights and obligations relating to coastal State intervention had to be balanced with the rights and interests of other parties that would be affected by any intervention. In legal terms these rights and interests could be classified as the subject matter of public and private international law:
•Public international law rules would be required to establish the features and extent of the right of intervention of the coastal State measured against the rights of the flag State of the ship in distress, this being a major public law issue as long as the ship had not been abandoned as a wreck.
•Private international law international rules would be needed to balance the interests of the coastal State with those of the private parties involved in the incident such as the shipowner, master, salvors, and insurers.
•International rules to deal with these vital questions were required in the period of legal uncertainty created by the failure of the 1958 Convention on the Territorial Sea and Contiguous Zone, and the Second United Nations Conference on the Law of the Sea (1960) to define the breadth of the territorial sea and fishery limits.
The right to prompt intervention to neutralize the damage being caused by the continuous leaking of oil from the Torrey Canyon was further hindered by an interpretation of admiralty law according to which there should be a waiting period before any party other than the shipowner or the salvors could intervene in cases of a maritime casualty occurred beyond the territorial sea. This meant that the urgent need to prevent damage to the marine environment adjacent to the coast was not considered as a public law and order issue taking immediate precedence over the deliberations of private parties on how to best deal with their own interests.
Under such circumstances, the obligation not to intervene was associated with the concept of freedom of navigation, which in the view of many should take precedence over any right of the coastal State to take action beyond the limits of its territorial sea: better to suffer some damage than to invade international waters and interfere with the interests of the flag State and the private parties involved, until the inaction of the latter resulted in a catastrophe of major proportions. Only in cases of substantial, grave, and imminent damage could the coastal State interfere with the flag State of a ship in distress, the private domain of shipowners, salvors, and insurers. A conceptual vicious circle could therefore develop: damage would not seem significant in the beginning and, accordingly, reasons for immediate coastal State intervention would not become obvious: the best way forward was to avoid unnecessary interference by the coastal State with the flag State and the private interests involved, and to first allow shipowners, salvors, and insurers to negotiate on how to solve the problem and intervene only when negotiations did not progress as they were expected to do. However, by then it could be too late to avoid catastrophic damage.
A further legal uncertainty that played against prompt intervening action by the coastal State was the geographic position of the casualty. The Torrey Canyon ran aground on rocks beyond the 3 miles between Land’s End and the Scilly Isles, beyond the British territorial sea but still within the continuous zone set by the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone. However, it was not clear whether the right of the coastal State to intervene in order to stop pollution damage could be exerted as a means to prevent infringement of ‘sanitary regulations’, referred to in Article 24.1(a) of that treaty as a reason for the coastal State to exert its ‘control’ over the contiguous zone. This last expression seemed too narrow to cover damage to coastal interests.
The difficulties in assessing the legitimacy of the right of coastal State intervention beyond the territorial sea in the 1960s are illustrated by the language used in the directives issued by the IMCO Council on the tenor of the travaux preparatoires leading to the drafting of the Intervention Convention. Deliberations should consider ‘The extent to which a State directly threatened or affected by a casualty which takes place outside its territorial sea can, or should be enabled to, take measures to protect its coastline, harbours, territorial sea, or amenities … even when such measures may affect the interests of shipowners, salvage companies and insurers and even of a flag government’.
The caution and care invested in the consideration of such issues is reflected in the clear restrictions imposed on the action to be taken by the coastal State by the Intervention Convention. In accordance with Article I.1, the exercise of the right of intervention is restricted to the need to prevent a grave and imminent danger in face of a casualty which may be reasonably expected to result in major harmful consequences. Article III (d) imposes upon the intervening State the obligation to consult with other States, in particular the flag State, before the intervention takes place, unless ‘extreme urgency’ compels intervention without consultation of any kind. Article V provides that intervening measures must be proportionate to actual or threatened damage, shall not go beyond what is reasonably necessary, and shall cease as soon as its end has been achieved. Article V paragraph 2 specifically requires that measures taken by the coastal State ‘shall cease as soon as that end has been achieved’ and ‘shall not unnecessary interfere with the rights and interests of the flag State, third States and of any persons, physical or corporate concerned’.
8.4 The Right to Intervention in UNCLOS and its Relationship with the Intervention Convention
Article 221(1) UNCLOS recognizes the rights of States, ‘pursuant to international law, both customary and conventional, to take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their coastline or related interests, including fishing, from pollution or threat of pollution following upon a maritime casualty … which may reasonably be expected to result in major harmful consequences’.
Before the pertinent texts of Intervention Convention and UNCLOS are compared in more detail, it is important to establish the way in which the first relates to the second in terms of treaty law.
In its text, UNCLOS not only recognizes the existence of IMO’s work through continuous references to the obligation to abide by rules and standards adopted by ‘the competent international organization’. It also enhances the effectiveness of these rules and standards by incorporating them into a comprehensive jurisdictional framework. UNCLOS is acknowledged to be an ‘umbrella convention’ because most of its provisions, being of a general kind, can be implemented only through specific operative regulations contained in other international agreements. There is widespread consensus that references in UNCLOS to generally accepted shipping international rules and standards on safety of navigation and prevention of marine pollution from vessel source means references to IMO rules and standards.3
In the case of prevention of marine pollution from vessels’ source, the relationship between UNCLOS and IMO rules and standards becomes particularly interdependent due to the peculiar features of UNCLOS Part XII, which deals exclusively with the protection and preservation of the marine environment: UNCLOS Part XII is more than an ‘umbrella convention’ vis-à-vis IMO rules, because it contains provisions which are in themselves of an operative kind: they can be directly implemented and, as such, should be read together with other operative provisions contained in IMO treaties and recommendations dealing with the protection of the marine environment.
The possibility of ‘reading together’ the Intervention Convention and UNCLOS is further reaffirmed by UNCLOS, Article 237. In accordance with paragraph 1 of this Article, the provisions contained in UNCLOS, part XII are applicable:
without prejudice to the specific obligations assumed by States under special conventions and agreements concluded previously which relates to the protection and preservation of the marine environment and to agreements which may be concluded in furtherance of the general principles set forth in this Convention.
The Intervention Convention should be included among the conventions and agreements concluded before the adoption and entry into force of UNCLOS. Moreover, the correspondence between the text of the Intervention Convention and the general principles set forth in UNCLOS is reaffirmed by the fact that Article 221, paragraph 1 of UNCLOS in fact reproduces the essential features of the right to intervene regulated Article I, paragraph 1 of the Intervention Convention. There is therefore no doubt that the provisions contained in the Intervention Convention can be carried out ‘in a manner consistent with the general principles and objectives’ of UNCLOS in accordance to its Article 237, paragraph 2.
In spite of this compatibility, the question arises whether in the cases of States Parties to both the Intervention Convention and UNCLOS the exercise of the right to intervene conferred by UNCLOS Article 221 needs to be necessarily complemented with the regulations included in the Intervention Convention. Even a superficial reading of both texts shows that while the Intervention Convention conditions the right to intervention with the application of carefully regulated restrictions, the text of UNCLOS Article 221 is strikingly more flexible and comprehensive. Rather than defining the right of intervention as a treaty law restrictive exception to the rule of non-intervention, UNCLOS appears to acknowledge the existence of such a right in terms of both customary and conventional international law. Certainly, UNCLOS Article 221 implicitly refers to the Intervention Convention when it acknowledges the rights of States to intervene ‘pursuant to international law’. However, UNCLOS immediately indicates that international law in this regard can be ‘both customary and conventional’, thereby indicating the legality of the right to intervene not only in accordance with treaty law but also customary law. It seems as if, unlike the Intervention Convention, UNCLOS explicitly recognized the right to protect coastline or related interests as customary law.
The distinctions made in the preceding paragraph can be easily reconciled in the ‘reading together’ of both the Intervention Convention and UNCLOS. The first was adopted at a time of legal uncertainty arising not only from the fact that there was no consensus as to the geographical extent of the territorial sea, but also bearing in mind that no consuetudinary practice of intervention had been developed in the face of a phenomena then relatively new, as was the navigation of supertankers carrying oil and the catastrophic risks involved in the occurrence of an accidental oil spill. Against this background, the Intervention Convention could only regulate rights to be exercised under exceptional circumstances that needed to be properly defined. What it could not do was to proclaim the existence of a regime of consuetudinary international law. Only a general treaty regulating fundamental principles of the law of the sea and adopted after coastal State interventions had become customary could do so, and this is what UNCLOS did thirteen years after the birth of the Intervention Convention.
Bearing in mind the preceding distinctions, coastal States may intervene beyond their territorial sea irrespective of whether or not they are party to the Intervention Convention or indeed, to UNCLOS:
•If they are party to the Intervention Convention they may apply the mechanism of consultation and notification regulated by this treaty.