2007 Law of the Sea Institute ConferenceTexas A&M University -- Corpus Christi

Harte Research Institute for Gulf of Mexico Studies

March 23, 2007

Maritime Transportation of Hazardous Materials Through the Caribbean and the Panama Canal

Jon M. Van DykeWilliam S. Richardson School of Law

University of Hawaii at Manoa

The Disappearing Right to Navigational Freedom in the Exclusive Economic Zone

* Restrictions on Navigation Related to Coastal-State Exploitation of the Living Resources of the EEZ

* Restrictions on Navigation Related to Protecting Coasts and the Marine Environment from Pollution

* Restrictions on Navigation Related to Security and Military Concerns

Can a Coastal State Limit Navigation in the EEZ Based on the Cargo and Nature of the Ship?

The Prestige (November 2002)

Cleaning Up After the Prestige Disaster

Restrictions on Navigational Freedoms Based on the Cargo Being Transported

After the oil spill caused by the break up of the tanker Prestige in November 2002, Spain, France, and Portugal decreed that all single-hulled oil tankers more than 15 years old passing through their exclusive economic zones would be subject to being stopped and inspected, and that those ships found to be not seaworthy would be prohibited completely from their EEZs.

Is this legitimate under the Law of the Sea Convention?

European Restrictions on Navigational Freedoms

• In the spring of 2003, the European Union banned large single-hulled tankers carrying heavy grade oil from coming into any European ports.

• Then, on April 3, 2003, the French National Assembly unanimously adopted a new law asserting the right to intercept ships out to a distance 90 miles from its Mediterranean coast that release polluting ballast waters and also imposing stricter controls on transient oil tankers.

Sea Shipment of Radioactive Materials

San Onofre Nuclear ReactorA dismantled nuclear reactor was to be moved

from California to South Carolina for burial, entailing a 90-day journey around Cape Horn at the tip of South America, one of the world’s most dangerous nautical passages.

After an Argentine court prohibited the passage, and in light of the Chilean law, the US decided against this move on February 3, 2004, and the reactor will stay in California.

Canals Are Not Straits.* Canals are human-made and present unique

problems of management, maintenance, financial integrity, and control.

* Like Rivers, Canals Are “Internal Waters”(Completely Subject to the Sovereignty of the State in Which They Are Located).

* No right of innocent passage through canals* Canals are frequently governed by international canals

prohibiting discrimination, but allowing restrictions based on safety, and allowing tolls to be charged.

* Internationalization of Kiel Canal has been abandoned.

* Suez Canal requires unlimited insurance for passage of radioactive cargoes.

The 1977 Panama Canal Neutrality Treaty Requires Panama to Treat the Ships of All Nations Equally,

But It Does Not Prohibit Panama from Imposing Reasonable Safety Requirements on All Ships to Protect the Canal, Its Population, and Its Environment.

Suez Canal

Why Don’t the Ultrahazardous Radioactive Cargoes Go Through the Suez Canal?

Because the Suez Canal regulations (Article 146):

(A) require the shippers to provide a guarantee of “unlimited compensation,” and

(B) establish a regime of strict liabilityimposed on the shipper, without regard to cause or fault.

GulfofMaine

Passamaquoddy Bay

Liquid Natural Gas Terminal, Lake Charles, Louisiana

Article 45 -- Innocent Passage1. The regime of innocent passage, in

accordance with Part II, section 3 shall apply in straits used for international navigation:

(a) excluded from the application of the regime of transit passage under article 38 , paragraph 1; or

(b) between a part of the high seas or an exclusive economic zone and the territorial sea of a foreign State.

2. There shall be no suspension of innocent passage through such straits.

Head Harbor Passage – Passamaquoddy BayCanada:* These are internal waters* Canada can block the

shipments of Liquid Natural Gas because they are dangerous cargoes.

United States:* Argues that it has the right of nonsuspendable

innocent passage through this strait.* And that Canada must permit such passage

because Canada ratified the Law of the Sea Convention (in 2003), even though the United States has not yet ratified the Convention.

Should International Straits Be Viewed as Shared Rivers?

Can we extract governance ideas from those that apply to rivers?

The Danube River

Former ITLOSJudge DavidAnderson

EEZ Group 21Under the

auspices of Japan’s Ocean Policy Research Foundation(with funding from the Nippon Foundation), a group of 15 experienced ocean law scholars and officials prepared “Guidelines for Navigation and Overflight in the Exclusive Economic Zone” in September 2005 after a series of meeting discussing these issues. Among the Guidelines adopted by this group is the following:

II. RIGHTS AND DUTIES OF THE COASTAL STATE

a. A coastal State may, in accordance with international law, regulate navigation in its EEZ by ships carrying inherently dangerous or noxious substances in their cargo....

A New Principle of International Law Is Emerging Allowing Coastal States to Limit Navigation Through the EEZ Based on the Cargo and Nature of the Ship

* Fishing vessels can be stopped and inspected* Single-hulled oil tankers can be stopped and

inspected* Ships transporting nuclear cargoes must

comply with coastal state safety requirements* Ships transporting weapons of

mass destruction may be subject to inspection