Maritime Transport of the Environmentally Damaging Materials
(A Balance Between Absolute Freedom and Strict Prohibition).

Dr. Thaqal S. Al-Ajmi

<[email protected]>

International Law Department

Kuwait University - Law School

Copyright © Thaqal S. Al-Ajmi 2007
First Published in Web Journal of Current Legal Issues.

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Summary

This study is intended to balance the rights of free navigation in all of its forms whether in the high seas or in the territorial waters of other States by resorting to the right of innocent passage and right of transit passage, which is enjoyable by all States and the obligation to protect the environment from any damaging materials as imposed upon all States at the same time, when such damaging materials are shipped from one State to another via seas or oceans. According to this study, which presented many evidence from international law and regional and even national practice, the obligation to protect the environment supersedes the right of free navigation, therefore restricting the right to ship or transport materials that could cause damage to the environment.

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Contents

Introduction
Free Navigation Is Always Free

Freedom of Navigation
The Right of Innocent Passage
The Right of Transit Passage
The Right of Secrecy

Freedom Of Navigation Is Not Always Free

The Obligation to Protect the Environment
The Obligation to Take Precautionary Measures
The Obligation to Give Prior Notification
At The International Level
At The Regional Level
At The National Level

Conclusion

Bibliography

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Introduction

Trading in the environmentally damaging materials whether hazardous wastes, radioactive substances, or any inherently dangerous articles has become a prosperous business.  In fact, more than fifty percent of all cargo shipped by sea, whether solid, liquid, or gas consists of hazardous or noxious substances (Schuda 1992, p 1010).

The reasons that shipping of these substances has become so frequent include the following:

One obvious reason, especially if these substances contain materials that can be used as a source of energy whether recycled or not, is that such export means gaining huge financial profits for the exporter. The importer will also possess an important source of energy that can be, to a certain extent, used as a clean and cheap substitute to oil, which is subject to daily fluctuations of price.

Other reasons that States, industrial States in this case, export hazardous wastes include the following:

First, these States, by exporting these hazardous wastes to other States, will free themselves of potential danger that can be caused to their people and the environment (Choksi 2001, p 512). Statistics show that the world produced five million metric tons of hazardous wastes in 1947.  By 1990, this amount had increased to 300 millions.  As of 1997, these estimates had risen to over 400 million metric tons of hazardous wastes. Secondly, by sending these hazardous wastes overseas for disposal, these States or the local companies will save a tremendous amount of money that would have been required, if they had decided to dispose these hazardous wastes locally.  For example, incinerating wastes in the United States may cost more than $2,000 per ton, whereas in developing countries it costs no more than $40 per ton Choksi 2001, p 513).  Therefore, these States or their local companies choose the least expensive way by sending these hazardous wastes overseas. Thirdly, in many cases the decision by the local companies to export hazardous wastes might be made to avoid the strict environmental regulations in the producing countries for the local disposal.  Thus, these companies choose to export these hazardous wastes to countries with loose regulations or less effective monitoring systems (Kiss 1991, p 529; Choksi 2001, p 512).  An example of a national law that is very strict on the issue of  local disposal of hazardous wastes is the US Resource Conservation and Recovery Act of 1976 (Waugh 2000, p 483-484).  Lastly, by exporting hazardous wastes to developing countries, where environmental regulations are toothless, exporting companies will evade any liability concern (Choksi 2001, p 512) when such disposal causes pollution, and therefore, damage to the people or the environment of the disposal country.   It is thus not surprising that a large quantity of the approximately 400 million tons of hazardous wastes produced every year is transported to underdeveloped and developing countries, some of which are more than half way across the globe from the place where wastes are produced.  For example, the US industries alone export over 160,000 tons of hazardous wastes each year (Webster-Main 2002, p 67; Sundram 1997, p 4).

There is no doubt that the carriage of such material results in vessels carrying environmentally damaging materials passing through the territorial seas of various States, straits and canals, and call at ports of other States, therefore creating severe risks to these coastal States and to the marine environment in general.  For this reason, this paper will discuss the issue of transportation of these environmentally damaging materials and will present the rules stated in international law in this regard.  This paper consists of two parts: The first part argues that the exporting States have the full right, in accordance with the international law, to export these materials and have no restriction in this respect.  The other part of this paper seeks to prove that transportation of any materials that may have any adverse effects whether on the marine environment of the coastal States or on the marine environment in general, has a special status, and thus it is not unlimited.

Free Navigation Is Always Free

Shipping States usually argue that they have the right to export hazardous materials overseas and such a right is absolute and cannot be banned.  This argument can be based on the following:

 

Freedom of Navigation

One of the most common arguments that shipping States have is that the high seas are open to all States. No State has any sovereignty over them and, therefore, it cannot prevent other States from sailing into these areas.  This argument is as old as the Roman saying which holds that oceans were communis omnium naturali jure (open to all persons by the operation of natural law) (Clingan, 1994, 10). Hugo Grotuis also spoke about this freedom and said that oceans belong to no one; they are free to any one who wishes to cross them (Clingan, 1994, 12-18).  This principle has been reflected in Article 2 of the Geneva Convention on the High Sea of 1958. Article 2 states that:

The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty.  Freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law.  It comprises, inter alia, both for coastal and non-coastal States:
freedom of navigation;
freedom of fishing;
freedom to lay submarine cables and pipelines;
freedom to fly over the high seas …(See, U.N.T.S. V. 450, P. 82 (came into force on 30 September 1962)

Article 87 (1) of United Nations Convention on the Law of the Sea provides that

The high seas are open to all States, whether coastal or land-locked.  Freedom of the high seas is exercised under conditions laid down by this Convention and by other rules of international law.  It comprises, inter alia, both for coastal and land-locked States:
freedom of navigation;
freedom of overflight.

Article 90 states that “Every State, whether coastal or land-locked, has the right to sail ships flying its flag in the high seas".

The Right of Innocent Passage

Not only has international law given the right to shipping States to freely sail in high seas as stated above, but it has given them the right to sail in the territorial waters of coastal States which have sovereignty over them.  This is because this sovereignty has been restricted by rules of international law as articulated very clearly in UNCLOS, most provisions of which are considered by many writers of international law as a codification of customary international law (Marin 2001, pp 362-378).  According to UNCLOS, it is not only coastal States that have the right of access to territorial waters. Other States also have the right of innocent passage.  This right means that ships of all States shall:

"enjoy the right of innocent passage through the territorial sea" of the coastal States for the purpose of "(a)- traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or (b)- proceeding to or from internal waters or a call at such roadstead or port facility" (UNCLOS Article 18).

However, not all passages through the territorial waters of the coastal States are considered to be innocent. The innocent passages are those which are not prejudicial to the peace, good order or security of the coastal States.  Article 19 of UNCLOS defines innocent passage as

"1- passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State.  Such passage shall take place in conformity with this Convention and with other rules of international law.  2- passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:
any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;
any exercise or practice with weapons of any kind;
any act aimed at collecting information to the prejudice of the defence or security of the coastal State;
any act of propaganda aimed at affecting the defence or security of the coastal State;
the launching, landing or taking on board of any aircraft;
the launching, landing or taking on board of any military device;
the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;
any act of willful and serious pollution contrary to this Convention;
any fishing activities;
the carrying out of research or survey activities;
any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;
any other activity not having a direct bearing on passage".

Hence, the question here is whether a passage of a ship carrying hazardous materials or substances through the territorial waters of the coastal States cannot be considered an innocent passage because it is prejudicial to the peace, good order or security of the coastal States.

Looking through the relevant provisions of UNCLOS, one may say that carrying hazardous materials on board a ship traversing the territorial waters of coastal States cannot be considered as a non-innocent passage per se.  This is attributable to two reasons.  The first reason is that carrying hazardous materials only for the purpose of passing the territorial waters of coastal States is not among the acts enumerated in Article 19 (2) of UNCLOS, which make such passing prejudicial to peace, good order and security of the coastal States, and therefore not innocent passage.  One of the acts that is listed in this article for the protection of the marine environment, and which has been cited by some writers concerning ships carrying hazardous materials, is the act mentioned in Subparagraph (h) of Article 19 (2) of UNCLOS which states that "any acts of wilful and serious pollution is contrary to this Convention" (Pedrozo, 1997 p 223).  Nonetheless, this provision is about intentional and serious pollution and does not apply to the mere passage of hazardous materials on board of a ship destined to another State for commercial reasons and which has no intention whatsoever to cause any pollution to any coastal State.  The other reason is that the drafters of UNCLOS have foreseen such a scenario and still consider the case to be a case of innocent passage.  According to Article 23 of UNCLOS ships carrying:

nuclear or other inherently dangerous or noxious substances shall, when exercising the right of innocent passage through the territorial sea, carry documents and observe special precautionary measures [e.g. sea lanes] established for such ships" (Marin, 2001 p 362; Tanaka, 2004 p 350).

The Right of Transit Passage

Though it can be considered as part of the general principle of freedom of navigation mentioned above, the concept of transit passage has some special attributes since, according to Article 37 of UNCLOS, it is only applicable to straits:

which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an economic exclusive zone".

Pursuant to this right, shipping States may argue that all ships must enjoy unimpeded freedom of navigation when traversing international straits.  Hence, any procedures or measures contemplated by coastal States must include this right and must not, in any manner, hamper it.  Nonetheless, this right must be used in a way that does not harm the environment as will be discussed later.

The Right of Secrecy

One argument that can be cited by States shipping hazards, especially against the requirement of prior notification to transit States, is that such a disclosure will expose such shipments, including nuclear shipments, to possible terrorist attacks, therefore, this will undermine the security of the Shipping States (Van Dyke, 2002).  This argument may be very logical especially nowadays, when acts of terrorism are spread and many States are accused of being involved in terrorist activities. In this respect, reference can be made to Article 302 of UNCLOS, which acknowledges this fact and stipulates that:

nothing in this Convention shall be deemed to require a State Party, in the fulfillment of its obligations under this Convention, to supply information the disclosure of which is contrary to the essential interests of its security.

Another international instrument that also accepts the importance of secrecy in some cases, is the Convention on the Physical Protection of Nuclear Materials of 1980.  According to Article 6(1) of this Convention, States Parties:

shall take appropriate measures consistent with their national laws to protect confidentiality of any information which they receive …. through participation in any activity carried out for the implementation of this Convention.

One more recent international instrument, though not yet in force, can be considered, if not as a codification of customary international law, at least it is a reflection of the desired international law in relation to the environment.  This instrument contains the Draft Articles on Prevention of Transboundary Harm from Hazardous Activities adopted by the International Law Commission in its fifty-third session (2001) (hereinafter ILC Draft Articles).  Article 14 of the ILC Draft Articles states that "data and information vital to the national security of the State of origin …. may be withheld". (Draft Articles on Prevention of Transboundary Harm from Hazardous Activities adopted by the International Law Commission at its fifty-third session (2001), UN GAOR, 56^th Sess., Supp. No. 10, at 370-436, UN Doc. A/56/10 (2001)). The right to withhold what is considered to be secret information for the protection of national security has been relied upon by the United Kingdom against Ireland in the MOX Plant Case (Memorial of the United Kingdom, MOX Plant (Ireland v. United Kingdom of Great Britain and Northern Ireland), ITLOS 15 Nov., 2001, at 174-179).

Freedom Of Navigation Is Not Always Free

There is an argument which says that although the right of free navigation is well established, this right is not always absolute.  Instead, it is restricted in some cases where transportation of environmentally damaging materials is involved.  These restrictions follow from the following obligations:

The Obligation to Protect the Environment

One of the most persuasive arguments that can be held against the right of unlimited freedom of navigation is that such a right must not be exercised in a way that would cause damage or harm to the environment.  The reason this obligation is very significant with regard to the issue of the transportation of hazardous materials is that this action takes place in the oceans.  These oceans by their nature are in constant flow and their currents spread throughout the earth.  Therefore, unlike incidents on land which can be controlled, incidents in the oceans cannot be easily traced (Marin, 2001, p 366).

Some writers on international law think that, under UNCLOS, the balance between the right of free navigation and the obligation to protect the environment is not always clear Marin, 2001 p 366). However I would argue that the obligation to protect the environment supersedes the right of free navigation based on these reasons, some of which are included in UNCLOS:

(A)- All provisions of UNCLOS which address the right of the maritime State of freedom of navigation, innocent passage or transit passage had been conditioned by the requirement of not causing any harm to the environment of other States whether coastal or not.  For example, Article 87 which deals with the freedom of the high seas, states in its concluding paragraph that "this freedom [i.e. freedom of navigation] shall be exercised by all States with due regard to the interest of other States" (Article 87(2).  Clearly, having unpolluted marine environment is one of these interests.  A similar provision can be found in Article 2 of the 1958 Convention on the High Seas. Another example of a treaty that requires its States Parties to pursue their goals, but taking into account the environment, is the North America Free Trade Agreement (NAFTA).  During the development of this treaty, many thought that the attraction of investment will prevail over any other matter.  However, the preamble of NAFTA requires its States Parties to pursue trade objectives in a manner consistent with environmental standards.  Article 1114 also prohibits the relaxation or waiver of environmental standards in order to attract foreign investment (Waugh * 510-511).

Any act of wilful and serious pollution of the territorial sea of the coastal State will make the passage of a foreign ship prejudicial to the peace, good order or security of that State and will therefore, under Article 19 of UNCLOs, be non-innocent passage.  Should this happen, the coastal State concerned may, under Article 25 of UNCLOS, take all the necessary measures in its territorial sea to prevent such a passage that is not innocent.  The same rule is applicable to the right of transit passage, that is that transit ships shall, under Article 39(2)‘b’ of UNCLOS "comply with generally accepted international regulations, procedures and practice for the prevention, reduction and control of pollution from ships ..".

(B)- Not only had the drafters of UNCLOS restricted the rights of the maritime state as argued above, but they also added in very clear terms that protection of the marine environment is an obligation upon all States Parties to the Convention.  Article 192 of UNCLOS provides that "States have the obligation to protect and preserve the marine environment".  UNCLOS even goes further to specify this obligation by stating, under Article 194, that States Parties shall take all measures, in accordance with their capabilities, to prevent, reduce and control pollution in the marine environment.  Consequently, the question as to whether the coastal State has the right to protect its marine environment should not be considered the main issue here, since, as stated above, it has become an international obligation upon all States Parties to UNCLOS.

(C)- Recognizing that the obligation to protect the marine environment must be implemented by States Parties by means of national laws and regulations, UNCLOS has given coastal States the right to adopt laws and regulations for the sole purpose of protecting their marine environment.  At the same time, it requires, under Article 58(3) all States Parties to comply with these laws and regulations "provided that they are compatible with UNCLOS and other rules of international law".  Article 21 of UNCLOS states that

(1) the coastal State may adopt laws and regulations, in conformity with the provisions of the Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following: 
….
'f' the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof.

Another example is Article 17 of the Convention on the Territorial Sea and Contiguous Zone, which provides that:

foreign ships exercising the right of innocent passage shall comply with the laws and regulation enacted by the coastal State in conformity with these articles and other rules of international law, in particular, with such law and regulations relating to transport and navigation. (Convention on the Territorial Sea and the Contiguous Zone (29 April 1958), U.N.T.S. Vol. 516, p. 205 (1958))

Because of this, many States Parties to UNCLOS have adopted laws and regulations requiring prior notification from the State exporting the hazardous materials, as will be discussed later, before their ships pass through the territorial waters of these States.  Furthermore, no State Party to UNCLOS has yet brought any claim against States requiring prior notification, and this can be taken as an implicit approval from the exporting States that such rules and regulations adopted by the coastal States conform with the provisions of UNCLOS and other rules of international law.

(D)- In addition, practices of some States support the argument that the obligation to protect the marine environment supersedes the right of free navigation: first, the Torry Canyon case of 1969, which represents a precedence of action taken by the a coastal State to protect its marine environment, when Britain bombed and destroyed the Liberian oil tanker after it ran aground in the English Channel (Van Dyke, 2002).  Another example was the 1995 Canadian use of force to seize a Spanish fishing vessel in the high seas because of its over-fishing activities of stocks that straddle Canada's exclusive economic zone (Van Dyke, 2002).  One more example is the Chilean forced expulsion of the British ship (Pacific Pintail) loaded with radioactive plutonium wastes and heading for Japan out of its economic exclusive zone (EEZ) in 2005 (Marin, 2001 p 362).   These kinds of actions can be based on Article 221 (1) of UNCLOS, which gives States the right to:

take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their …. interests, including fishing,  from pollution or threat of pollution.

Another provision that also contemplates such measures can be found in Article 1 of the 1973 Protocol Relating to Intervention on the High Seas in Cases of Substances Other than Oil.   This article entitles coastal States to take aggressive action in high seas to prevent or mitigate

grave and imminent danger to their coastline or related interests from pollution by substances other than oil following upon a maritime casualty or acts related to such a casualty which may reasonably be expected to result in harmful consequences.

Although the aggressive action taken by the coastal States may be based on the inherent right of self-defence, this Protocol, which was adopted after the Torry Canyon disaster, allows States concerned to intervene on the high seas to prevent damage to their coastal marine resources.  It can also be said that this Protocol is applicable to situations where damage did not occur yet but is foreseen because the ship carrying hazardous materials did not take some precautionary measures, one of which, is to have prior consultation with the coastal States.  Therefore, such States are allowed to intervene on order to block this shipment (Van Dyke, 2002).

(E)- Last but not least, according to Principle 21 of Stockholm Declaration, States have the:

responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limit of national jurisdiction. (Declaration of the United Nations Conference in the Human Environment at Stockholm (Stockholm Declaration), UN Doc. A/CONF. 48/14, 7, 11 I.L.M. 1416, 1420 (1972))

Consequently, the obligation not to cause harm to the environment, whether marine environment or not, is well established under international law upon all States, whether maritime or not.  Many writers of international law have argued that this principle is considered to be common in international law.  Indeed, this principle has been described as the "cornerstone of international environmental law" (Knox, 2002 p 292).

The International Court of Justice, in its 1996 advisory view on the Legality of the Threat or Use of Nuclear Weapons, stated that:

the existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment. (International Court of Justice Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996), ICJ Rep. 226, 241-42, Para. 29 (8 July 1996))

Moreover, the drafters of UNCLOS took this general obligation into consideration and reincorporated it in Article 194 (2), which states that States must take "all measures necessary to ensure that activities are under their jurisdiction or control and conducted so as not to cause damage by pollution to other States and their environment …".

The Obligation to Take Precautionary Measures

Another obligation that the maritime State must take into account, before making the decision to export hazardous materials via oceans, is that, in so far as possible, it has studied all possible consequences of such shipment to the marine environment ((Rio Declaration 1992, Principle 15).  Principle 15 states that "in order to protect the environment the precautionary approach shall be widely applied by States according to their capabilities…". These precautionary measures are meant to protect the environment and therefore restrict, to a certain extent, the freedom of navigation of the maritime States.  These measures include the following:

(A) The shipping State must conduct an environmental impact assessment (EIA) before permitting the shipment of hazardous materials.  The EIA is a process to examine, analyze, and evaluate planned activities in order to attain sustainable development through environmentally informed decision-making (Tanaka, 2004, p 353).

Principle 17 of Rio Declaration, the requirement to conduct an EIA for any "proposed activity that are likely to have adverse impact on the environment", has been widely adopted by many international instruments, including the following:

UNCLOS which states in Article 204 that "States shall …… endeavor, as far as practicable, directly or through the competent international organizations, to observe, evaluate and analyze, by recognized scientific methods, the risks or effects of pollution of the marine environment".

The Convention for the Protection of Natural Resources and Environment of the South Pacific Region, which in Article 16 requires States Parties to assess "the potential effects of projects on the marine environment". 

The Convention for the Protection of the Marine Environment of the Wider Caribbean Region (The Cartagena Convention), which in its Article 12 calls for the preparation and dissemination of EIA.

The Caribbean's Protocol concerning Specially Protected Areas and Wildlife (SPAW) also mandates in Article 13 each State party to prepare EIA on "industrial and other projects and other activities that would have a negative environmental impact".  

The Espoo Convention requires its States Parties to assess the transboundary environmental effects of certain activities within their jurisdiction and communicate with other States that may be affected by such activities.

The Organization for Economic Cooperation and Development (OECD) issued a document in 1995 requiring that "projects and programs which could significantly affect the environment be comprehensively assessed from an environmental standpoint by Member States at the earliest Stage" (Van Dyke, 1996 p 381).

The ILC Draft Articles stipulate in Article 7 that decision to authorize any activity shall "be based on an assessment of the possible transboundary harm caused by that activity, including any environmental impact assessment".

(B) Another precautionary measure that must be taken by the Shipping State, and is indeed a direct result of the EIA, is that, under Article 205 of UNCLOS, the Shipping State must make available to all concerned States, including the transit States, all information it obtained from the EIA on the activities it is about to carry out. The dissemination of this information is required because of the following reasons:  First of all, this dissemination will give assurance to all States concerned that such shipments are properly managed and have very limited risks or no risk at all either to the states concerned or to the environment in general.  This is as stated by the UN General Assembly, in its Resolution 43/212 (December 1988), (Responsibility of States for the Protection of the Environment: Prevention of the Illegal International Traffic in, and the Dumping and Resulting Accumulation of, Toxic and Dangerous Products and Wastes Affecting the Developing Countries in Particular), in which it urges all States to

prohibit [all transboundary movement of toxic and dangerous wastes] without prior notification in writing of the competent authorities of all countries concerned, including transit countries, and to provide all information required to ensure the proper management of the wastes and full disclosure of the nature of the substances to be received on transportation". (UNGA A/RES/43/212 (20 December 1988), 83^rd Plenary Meeting)

Furthermore, such dissemination of information will give all States concerned, especially those which are likely to be affected by these shipments, the chance to prepare and develop contingency plans for emergencies with or without the help of the shipping State.  Article 8 of the ILC Draft Articles that:

if the assessment referred to in Article 7 [i.e. the EIA] indicates a risk of causing significant transboundary harm, the State of origin shall provide the State likely to be affected with timely notification of the risk and the assessment and shall transmit to it the available technical and all other relevant information on which the assessment is based.

Finally, the dissemination of information may, in some situations, especially those involving the transportation of nuclear materials, give the States concerned the right to prevent the transit of these materials in its territories or internal waterways, if they believe (based on the information they have) that these shipments are not properly managed.  Article 4 (3) of the Convention on the Physical Protection of Nuclear materials, states that:

[a] State Party shall not allow the transit of its territory by land or internal waterways or through its airports or seaports of nuclear material between States that are not parties to the Convention unless the State Party has received assurances as far as practicable that this material will be protected during international nuclear transport.

(C) The third measure or action that the shipping State should take is to prevent exportation. This is where, based on the findings of the EIA, it has a reason to believe that the importing country has not have the necessary capability to deal with such hazardous shipments in a proper manner that would preclude any adverse effects on the environment.  This has been taken into consideration by the drafters of the Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their disposal (hereinafter Basel Convention) in Article 4 (2)'c' which states that each State Party shall take the appropriate measure:

not to allow the export of hazardous wastes or other wastes to a state or a group of states …. if it has a good reason to believe that the wastes in question will not be managed in an environmentally sound manner.

The Basel Convention even goes further by requiring States Parties to re-import the hazardous wastes, if they discovered after exportation that the importing country cannot manage the hazardous wastes in an environmentally sound manner. Article 8 provides that

[w]hen a transboundary movement of hazardous wastes or other wastes to which the consent of the States concerned has been given, subject to the provisions of this Convention, can not be completed in accordance with the terms of the contract, the State of export shall ensure that the wastes in question are taken back into the Sate of export, by the exporter, if alternative arrangements can not be made for their disposal in an environmentally sound manner ... (Choksi, 2001 p 517)

The Obligation to Give Prior Notification

As mentioned briefly above, the shipping State must transmit all relevant information it has about its shipment to all States concerned, including the transit States.  The obligation to give prior notification regarding hazardous cargo will help in serving these objectives:

Firstly, this notification will enable all States concerned to prepare contingency plans in order to deal with emergencies and accidents.  Hence, if the notification is not included in all relevant information, the States concerned may solicit additional information.  Secondly, such notification will give the States concerned, as stated in Article 6(4) of the Basel Convention, the options whether to give consent or reject such a shipment. Thirdly, this notification will provide the States concerned the right to give consent with stipulated conditions for the purpose of protecting their marine environment.

The contention that the obligation to give prior notification to all the States concerned is in contravention of the shipping State's unrestricted right of free navigation cannot be sustained.  This is because the obligation to give prior notification has become part of international law. The State's commitment to notify all States concerned can be found in numerous treaties, resolutions, and judicial decisions and at all international, regional, or national levels.

At The International Level

At the international level, there are many international instruments that have given consent to the obligation of the State shipping hazards to give prior notification to all the States concerned, including the transit States.  Among these instruments are the following:

UNCLOS

According to this convention, in which most all States of the worlds are parties to (149 States Parties), under Article 198, a State is obliged to give notification where it is aware of any imminent danger of pollution (carrying hazardous materials can be considered as such) to "other States it deems likely to be affected by such damage ...".

Basel Convention

This Convention is considered by many scholars as the first truly global attempt to regulate the hazardous wastes trade and to set binding international standards for the protection of countries with inadequate hazardous wastes management systems (Abrams, 1990 p 803; Okaru, 1993).

According to Article 6 (1) of this Convention the exporting State must:

notify, or shall require the generator or exporter to notify, in writing, through the channel of the competent authority of the state of export, the competent authority of the States concerned of any proposed transboundary movement of hazardous wastes or other wastes ….

Rotterdam Convention

This Convention entered into force on 24 February 2004 and has 116 States Parties. The Rotterdam Convention was adopted in 1998 for the purposes, as laid out in Article 1, of promoting shared responsibility and cooperative efforts among Parties in the international trade of certain hazardous chemicals in order to protect human health and the environment from potential harm and to contribute to their environmentally sound use, by facilitating information exchange about their characteristics, by providing for a national decision-making process on their import and export and by disseminating these decisions to Parties.  Hence, one of the main obligations this Convention imposed upon its States Parties is, under Article 12(1), the requirement for a Party that plans to export a chemical that is banned or severely restricted for use within its territory, to inform the importing Party that such export will take place, before the first shipment and annually thereafter.

Principle 19 of Rio Declaration

Pursuant to this principle, which is widely considered as part of customary international law, States, under note 43 of Principle 19, are obliged to give

prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect and shall consult with those States at an early stage and in good faith.(See further Van Dyke, 1996)

Principle 5 of the International Atomic Energy Agency (IAEA) Code of Practice

According to this principle every State should take all necessary measures to ensure that "the international transboundary movement of radioactive wastes takes place only with the prior notification and consent of the sending, receiving and transit States in accordance with their respective laws and regulations".

Although this code is advisory, it can be taken as an evidence of a developing customary international law especially if coupled with States' practice.  Also, one may say that the provision of this principle is only applicable to radioactive cargo, therefore has not any bearing on other hazardous materials.  Though the latter argument is correct and the same can be said with regard other instruments like the Basel Convention which is only applicable to hazardous wastes listed therein, these instruments will help to prove that the right of freedom of navigation is not absolute.

UNGA Resolutions

In various UNGA resolutions, the requirement to give prior notification to all States concerned, including the transit States, had been clearly stipulated.  For example, in Resolution 43/212 (1988), the General Assembly:

urge all States …. to prohibit such movement  [transboundary movement of toxic and dangerous wastes] without prior notification in writing of the competent authority of all countries concerned, including transit countries…

IMO International Maritime Dangerous Goods Code (IMDG)

The IMDG, which was adopted by the IMO in 1965, governs the vast majority of shipments of hazardous materials by water.  The IMDG is intended to provide for the safe transportation of hazardous materials by vessels, protect crew members and prevent marine pollution.  The Code is based on the UN Model Regulation, but also includes more requirements that are applicable to the transport of hazardous materials by sea (e.g. requirement for marine pollutants, stowage and loading procedures etc.).  Implementation of the Code is mandatory in conjunction with the States' obligation under the International Convention for the Safety of Life at Sea (Solas) and the International Convention for the Prevention of Pollution from Ships (Marpol).  Today at least 150 countries whose combined merchant fleets account for more than 98 per cent of the world's gross tonnage use the IMDG Code as a basis for regulating sea transport of hazardous materials.  Among the provisions that this Code includes is the requirement imposed upon all ships carrying dangerous or polluting goods to give notification prior to the entry of ports of other States.  

ILC Draft Articles

According to ILC Draft Articles, which can be viewed as a reflection of the existing norms of international environmental law, States are required, under Article 8, to provide "the State likely to be affected with timely notification of the risks [of its activities]".

International Judicial Decisions

There are some of the international cases where the obligation to give notification can be inferred from:

(a) The Corfu Channel Case in 1949, in which Albania was held to have had a duty to disclose the presence of mines in the Channel (Corfu Channel Case (United Kingdom v. Albania), ICJ Reports 4 (1949); and

(b)- The Lac Lanoux Arbitration in 1957, in which France was required to consult in good faith with Spain over riparian rights (Lac Lanoux Arbitration, (1957) 24 I.L.R. 101, 128) (see further, Van Dyke. 2002). 

At The Regional Level

Not only have States resorted to multilateral instruments for the provision of the obligation to give prior notification, but also, for understandable reasons, included this obligation in many of their regional instruments which they have concluded.  Examples of these regional instruments include the following:

The Bamako Convention on the Ban of the Import in the African and the Control of Tranboundary Movement and Management of Hazardous Wastes within Africa (1992)

In addition to the total ban of importation of hazardous wastes into Africa, as the main focus of this Convention, Article 6 (4) of it proscribes that the exporting State must notify and receive the consent of all States concerned, including the transit States, before commencing the hazardous wastes shipment (see further Webster-Main, 2002). Nonetheless, this provision is only applicable to States Parties and does not apply to non-States Parties and, of course, not applicable if the receiving State is outside the African continent.  However, this criticism should not be overstated because African States are not among the main the hazardous wastes producers; instead they are among the main disposers of hazardous waste.

The Convention To Ban The Importation Into Forum Island Countries Of Hazardous And Radioactive Wastes And To Control The Transboundary Movement And Management Of Hazardous Wastes Within The South Pacific Region (1995) (The Waigani Convention).

According to Article 6 of this Convention, which is not yet enforceable, the exporting State must notify all States concerned of the intended transboundary movement of hazardous wastes and must give all full details of such shipment.

The Protocol on the Prevention of Pollution of the Mediterranean Sea by Tranboundary Movement of Hazardous Wastes and Their Disposal,1996, (Izmir Protocol)

Pursuant to Article 6 of this Protocol, the exporting State must notify the transit State and have its prior writing consent before hazardous wastes can be moved into its territory.

European Regulations

According to the European Community Directive 84/631, the exporting State must notify all transit States that the ship carrying hazardous wastes will pass through.  Moreover, this Directive was later amended in 1986 by Directive 86/279 (29 O.J. EUR. Comm (No. L 181), 13, 1986) in order to be equally applicable to movement of hazardous wastes leaving the European Community (Kiss, 1991 p 531). Furthermore, EU Regulation No. 259/93, which was adopted on 1 February 1993 in order to implement the Basel Convention in the EU, set several rules that apply to shipments of wastes within, into out of the European Community (EC), and whether these wastes are destined foe disposal or recovery.  One of the most significant obligation this Regulation included is the commitment of the notifier, defined in detail in Article 2(g), who intends to ship wastes whether for disposal or recovery to "notify the competent authority of dispatch and to transit and to the consignee".  

The most stringent international agreement regarding hazardous waste is the Convention on the Protection of the Environment Through Criminal Law, which was adopted by the Council of Europe on 4 November 1998.  1998. (It has been ratified by 3 States and needs 3 more ratifications to enter into force.) This Convention has established a severe penalty system for environmental violations that occur in the transportation and disposal of hazardous wastes.  For example, Article 2 and 3 of the Convention criminalize the unlawful transportation of hazardous waste that is likely to cause a severe human injury or environmental damage.  Furthermore, this Convention requires States Parties to impose imprisonment and financial sanctions for the most serious environmental offences.  Last but not least, this Convention applies outside the territorial jurisdiction of States Parties as provided by Article 5, which states that offences committed on the ship or aircraft are subject to the Convention's requirements, even if the offence occurred outside the territorial jurisdiction of the State Party.

When considering European regulation mention should be also made to the EU Directive 92/3/Euratom of 3 February 1993 on the Supervision and Control of Shipments of Radioactive Wastes between Member States and into and out of the EC, which established a community system of strict control and prior authorization for shipments of radioactive wastes.  According to this Directive the holder of radioactive wastes who intends to ship them either to Member States or non-member State must inform the competent authorities of all States concerned before such shipment takes place.

At The National Level

In dealing with ships carrying hazardous materials, States can be divided into three groups:

The first group is of States that require prior notification before hazardous wastes' shipping vessels can pass through their territorial wasters.  This includes, inter alia, Canada, Djibouti, Libya, Malta, Pakistan, Portugal, and United Arab Emirates (Hakapaa and Molenaar, 1999, p 131 and 141).

The second group is of States that even go further and require prior authorization for such passage.  Examples of these states are: Egypt, Guinea, Iran, Malaysia, Oman, Saudi Arabia, Turkey, and Yemen (Hakapaa and Molenaar, 1999).

The third group is of States that have taken the most extreme position with regard to ships that are carrying hazardous materials.  These States strictly prohibit the passage of such ships through their territorial waters.  Examples of these states are: Argentina, Haiti, the Ivory Coast, Nigeria, the Philippines, and Venezuela (Hakapaa and Molenaar, 1999).

Other States practices that should be noted here include Japan declaring that it would announce the routes of its 1998 shipment the day after it left France and Great Britain providing prior notification to the Panama Canal Commission regarding its 1998 shipment through the Canal (O’Keefe, 1990). More recently, in the aftermath of the breakup of the oil tanker Prestige, Spain and France issued, in November 2002, a joint decree stating, inter alia, that "all oil tanker traversing through these two countries' EEZ will have to provide prior notice to the coastal countries about the cargo, destination, flag, and operation " (Van Dyke, 2003). Though this statement is about oil shipments, it can be applicable to hazardous shipment as well.  This simply because the latter shipment is even more dangerous than the oil shipment.  Additionally, if these countries required prior notification before their EEZ, one would expect the same requirement for ships passing through their territorial waters.

Conclusion

It is very clear from the above that though the right of free navigation is guaranteed to all States, whether coastal or land-locked States, this right is not always absolute.  Rather, it is very restricted, especially when the use of such a right is in violation of the obligation to protect and preserve the environment, which is of high priority over the right of free navigation. Therefore, the right of free navigation, though indisputable, is accompanied by some conditions all of which are meant to protect the environment.  These conditions (i.e., the obligation to take precautionary measures and the obligation to give prior notification of all States concerned) are vital when the transportation of environmental damaging materials is involved.  The reasons for the requirement of these conditions are very obvious: such transportation carries a very high potential risk to the environment in general and to the environment of the States concerned in particular. Practice at all levels, whether international, regional or national, show that transportation of hazardous materials has been, in many cases, restricted by these conditions, especially with regard the obligation to give prior notification to the States concerned, including transit States, for the sole purpose of protecting the environment.

There is no total prohibition of the export of hazardous materials  because of many reasons.  First, such a prohibition will be considered by some States, especially the United States, as in contradiction with the right of free trade and freedom of contract; secondly, some States that produce such hazardous materials, like hazardous wastes, do not have the appropriate environmental conditions foe safe disposal, therefore they find exportation as the only viable solution.  An example of such a State is the Netherlands; and thirdly, some States rely on the importation of hazardous wastes as a source of workable recycled resources.

It is, hence, better for all States concerned, whether exporting States, transit States or importing States and the environment in general, to regulate this issue in a universal manner, rather than leaving this issue to be one for actions taken by States either unilaterally or on a regional level.  These kinds of action either do not solve the problem at all, but lead to more disputes between States concerned, especially if the unilateral action involves the use of force in order to expel a ship carrying hazardous materials from the territorial waters of other States, or do solve the problem but only partially between States of that region only.

A universal solution, which had already been proposed by Marin, is to delineate one universal sea lane for all ships carrying hazardous materials (not only radioactive shipments as Lawrence proposed) (Marin, 2001 pp 375-377).  Thus, rather than leaving such ships searching for a friendly route that would allow them to reach their final destinations, they could sail through one predetermined route passing through territorial seas of States that approved such shipments and are prepared to deal with any emergencies that might occur during the travel of these ships. Although such a universal lane may make this transport more expensive and farther in distance, these problems are not so important as the benefits of such lane.  First, such a lane would avoid the territorial waters of coastal States that do not allow such shipments to pass through their territorial waters, therefore it would help in reducing the potentiality of any possible disputes between shipping States and coastal States. Secondly, such a universal sea lane would try to avoid all areas of sea that are known to be where there is severe weather or unsafe conditions, therefore reducing the risk of accidents or disasters that might occur in such areas. Thirdly, such a universal sea lane can be monitored by States concerned with the help of non-governmental organizations, like Green Peace, thus establishing a global monitoring system along with the universal sea lane that can check upon the safety requirements which the shipping vessels must satisfy. 

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