Public Shipping Law: The Cases of the Corfu Channel and Anglo-Norwegian Fisheries - Case Study Example

PUBLIC SHIPPING LAW II Marine pollution and the environment - Case study. Introduction- This paper discusses the marinepollution and aspects of marine environment cases and the legislative regulations that have been cited in support of each party's claims and responses. International law confers sovereignty to coastal states over territorial waters. However, other states have a right to innocent passage in the territorial waters. Disputes arising on the right to innocent passage in territorial waters are many and two such cases, the Corfu Channel case and the Anglo-Norwegian case are evaluated with respect to the regulations in the different articles of International law. It is observed that disputes that arise in territorial waters have seen the port states exercise their special rights on territorial waters and claim to do so for the safety and security in their national interests. Marine environment and pollution is a concern for those holding rights over the territorial waters as well as on high seas, particularly in territorial waters due to its utilization for various activities like fishing, sea-bed activities, etc. The subject of Marine environment and pollution encompasses marine environmental activities and related principles, jurisdiction of port states over ships moving in the territorial region, and other sea-bed activities by the port state. In the particular cases of Corfu Channel and Anglo-Norwegian Fisheries conflict, marine pollution and environmental issues have been raised in the political, economic and historical contexts. It also seen that the port states have a rather diligent advantage over the claimant states in both the cases wherein in Corfu Channel case, the court put the responsibility of proof on the British government which is the claimant (Kazazi, 1995, p 86), while in the case of Anglo-Norwegian Fisheries case, the courts ruled that Norwegian government has the right to exercise its sovereignty on its territorial waters keeping in view the geo-socio custom of the Norwegians in depending on sea waters for fishing as an occupation by a majority (Wise, 1984, p 70). The Corfu Channel case- In 1946, two United Kingdom's ships have been damaged with loss of life of over 40 naval staff in the ships in the territorial waters of Albania. It is alleged by the United Kingdom that Albania has violated International law and had planted or was aware of the presence of mines in its territorial waters which caused loss of life and damage to two of its ships Soumarage and Volage when they struck mines lying under the sea. Earlier in 1944 and 1945 when the British seamen along with a team of international bodies swept the territorial waters of Albania, they had acted according to the law and had promptly informed and taken safety measures to keep the ships away during the minesweeping operations. However, on 15th May 1946 and again on 22nd October 1946, the British ships were shot at by the Norwegian authorities as a defensive attack alleging that the British ships were violating their orders and regulations in the international law to inform the port of their entry. In the second attack, in October, two of the ships that were sent by the British government after informing the Norwegian government of mine sweeping operations with the permission of the International Court of Justice (ICJ), were attacked and they stuck mines that lay under the sea resulting in loss of life and damage to the ships. The British government claimed that the Albanian government deliberately laid mines in the sea to disrupt the innocent passage rights of other nations. Also, since it had sent the two ships for mine sweeping operations, it alleged that Albania had violated the regulations in International law. It cites the articles 3 and 4 of the 8th convention of Hague of 1997 noting that Albania had violated the International law and failed to inform the other nations of the impending dangers due to the mines present in the territorial waters of Albania for which it is solely responsible (ICJ, 1949, p 14). It is to be noted that the Norwegian government has sovereign rights over the strait which falls in its territorial waters, and according to international law, can exercise its rights over ships of other nationalities even though they have a right to innocent passage through the strait. Jennings, et al (1996) observe that the sovereign rights over the territorial waters of a state were not without restriction. They noted that in this case, the court held the Albanian government responsible for not knowingly to allow its territory to be used for acts contrary to the rights of other states. However, they observe that the application of this principle to environmental law is somewhat unclear and that the court did not specify the exact contents of the rights concerned (p 296). Also, the Albanian government's response to the allegation by the British government that it is liable for a reply and take responsibility for the loss of life and damage to property and its breach of international law in failing to protect the interests of the countries that have a right to innocent passage has not been considered by the courts. Further, the court ordered the Albanian government to respond to the allegation and be liable for an explanation as to its duties in accordance with the International law which requires it not to endanger the life of the seafarers in the territorial waters either during war or peace. The courts further ordered the Albanian government to give explanation of the use of its territorial waters as required by the International law (Kazazi, 1995, p 133). It is also noted that although the territorial waters have been used to place the mines, the Albanian government pleaded innocence to knowledge of the same. It responded to the British government's communication on earlier accounts that it did not find the need to minesweep its waters after the minesweeping efforts during 1944-1945 based on orders from International Court of Justice (ICJ). However, with the British going ahead with the minesweeping and unearthing mines that it found were placed freshly, the courts did not rule the Albanian government guilty of planting them but nevertheless held it responsible for safeguarding the territory and informing the ships of any dangers, particularly after the first ship had been damaged. It is to be noted that there was a time gap of about two hours between the two accidents and the Albanian government failed to alert the ships of the dangers, which is a breach of Article 15(2) of the 1958 Territorial Sea Convention (Levie, 1992, p 140). This deliberate attempt to refrain from restricting the ships in the strait can be seen as a breach of Articles 3 and 4 of International law. Also, there is confusion in the court stressing on the British version of the innocence of passage but neglecting Albanian's version of the same (McDougal, Burke, 1987, p 243). The court ordered the Albanian government to compensate the British government for the losses and damages. Another important outcome of the case was that the court ruled that the presence of mines in the sea was not a danger to shipping (Levie, 1992, p 140). It can be concluded that although the courts ordered Albania to recompense the damages to the British government, the court did not deny the rights of the Albanian government's actions of denying innocent passage in the strait as it was observed that the British ships failed to display the flag and tried to forcibly enter the territorial waters in a manner that could not be considered innocent passage. Further, this case was considered as a rare one and that it could be considered more of a breach of humanitarian trust rather than marine pollution or an environmental issue. Anglo-Norwegian Fisheries case- This case is concerning the marine environmental issues in the Norwegian territorial waters. Here, the geo-social context of the state gains importance while considering any issues relating to shipping. The baseline of the state covers a highly curved coast, and the decision of the Norwegian government to extend to a 12 NM, its internal waters for fishing has been the bone of contention in this case. This is considered as a problem with defining a bay (McDouglas, Burke, 1987, p 345). Norway's decision to make a straight baseline for its curved coast implies that a large area would go into the internal waters and a further expansion of the internal waters by 12 miles with exclusive rights for fishing meant that the other fish-deficient nations would lose their rights in the extended area. The resolution of 1958 UN Geneva Convention was cited by the state, which gives the coastal states dependent on fishing, special rights (Wise, 1984, p 71). This delimitation of the internal waters by Norway for special rights over fishing was challenged by the British government where it refused to recognize the extended baselines. Further, it alleged that the straight baseline claimed by Norway was illegal according to customary international law which required it to define a baseline in accordance with the low-water mark on permanently dry land. It also quoted that Norway should draw proper baselines so it does not cover the entrances to the fjords and sunds, and it needs to establish its rights to the expanding of the internal waters and claims of special rights over the same for fishing (Jayewardane, 1990, p 48). These concerns raised by the British government on the special rights of the Norway led to two exceptions in the laws by the International Court of Justice. The 1958 Geneva Convention on the Territorial Sea had included Article 4 and the 1982 Law of Sea Convention included a slightly changed version of the same in Article 7 (Jayewardane, 1990, p 43). These changes set out the relevant rules for straight baselines that were to the advantage of Norway as its coastal line is highly indented. Although the British government argued the right to delimit the baseline was restricted to 10 miles and not 12 miles as Norway decreed, was rejected by the court on the reason that International law has no such provision in place (Jayewardane, 1990, p 117). Further, the court also referred to 1958 and 1982 Geneva Conventions on the Territorial Sea to allow the straight baselines for highly indented coastlines and also the special rights in the economic zones for marine related activities like fishing for owing to its history and socio-economic practices (Schrijver, 1997. p 206). McDouglas and Burke note that the court declared that the delimitation of the sea areas is an international aspect (1987, p 418). Further, the unique coastline of Norway gives it an advantage to define straight baselines (1987, p 383). In the court's judgment on this case, it can be seen that it had considered the realistic need of the state for extending the internal waters for local interests for economic and environmental benefits and not merely for extending the territorial waters (1987, p 387-388). Conclusion- The two cases of concerns in the territorial waters of the coastal states and their rights and duties are studied. The case of Corfu Channel relating to the issue of publicity of dangers to the ships of other nations by the coastal states and the rights to innocent passage has been the main focus points. The court considered that the Albanian government was liable for compensating the British government for loss of life and damage to the ships in violation of the Articles 3 and 4 of International law, but denied the allegation of the British government the right to innocent passage without permission from the coastal state and without a flag, where the coastal state had the right to restrict forcible entry into its territorial waters. This case is noted as a case of humanitarian nature and does not make the Albanian government to restrain from using mines in the sea. In the case of Anglo-Norwegian Fisheries, the court makes amendments to the 1958 and 1982 Geneva Conventions on the Territorial Sea, to ascertain that the unique indentation of Norway allows it to form a straight baseline and the historical and socio-economic practices of the state confer it with special rights to extend its internal waters by 12 miles for local interest of the state which depend on inshore fishing, keeping with the environmental interests as well. In this case, the International law has no particular regulation for the extension of baselines with high indentations and it is considered that the expansion of territorial waters is according to this law, always international. The ruling of the court in case of Albania's right to plant mines raises questions of safety as it can be interpreted and used to deliberately endanger and pollute the environment, which the British was suspecting. In the case of Anglo-Norwegian Fisheries, the special provision for curved coastline states to draw a straight baseline and further extension of the same sounds reasonable considering the socio-economic practices of depending on fishing as a major occupation. In these two cases, although the individual states would be right in exercising their rights in the interests of the respective states, communication of the same to member states probably could reduce the litigations due to the same. References- 1. Kazazi, Mojtaba. Burden of proof and related issues: a study on evidence before international tribunals. Martinus Nijhoff Publishers. 1995. pp 86-133. 2. McDougal, M. Smith, Burke, T. William. The public order of the oceans: a contemporary international law of the sea. Martinus Nijhoff Publishers. 1987. p 243. 3. Levie, S. Howard. Mine warfare at sea. Martinus Nijhoff Publishers. 1992. pp 140. 4. Jennings, R. Yewdall, et al. Fifty years of the International Court of Justice: essays in honor of Sir Robert Jennings. Cambridge University Press. 1996. p 296. 5. The Corfu Channel Case- Pleadings, Orals, Arguments. International Court of Justice. Vol I. 1949. p 14. 6. Wise, Mark. The common fisheries policy of the European Community. Taylor & Francis. 1984. p 70. 7. Schrijver, Nico. Sovereignty over natural resources: balancing rights and duties. Cambridge University Press. 1997. p 206. 8. Jayewardane, W. Hiran. The regime of islands in international law. Martinus Nijhoff Publishers. 1990. pp 43-117. Read More