Settlement of Disputes under UNCLOS with respect to High Seas Environmental Concerns

This article deals with the settlement of disputes under UNCLOS [United Nations Convention on the Law of the Sea] with respect to High Seas Environmental Law concerns.

I. Introduction

International law has been considered as the law of international communities of states as per its traditional view and its principles govern the relation among states. International law originated from the maritime affairs and it also generally accepted that it has undergone the process of drastic change, because of change in climate, impact of human activities on ocean etc.

So before going into the realm of dispute settlement mechanism of the High Seas we need to focus on freedom of high seas from its historical perspective. The sea is neither considered as mare liberum nor mare clausum but it is mare nostrum, the sea bed is known as res nullius which is similar to the law governing the territorial acquisition of lands that belongs to no one (terra nullius).

It was not expected to the ancient era of Greece and Rome that the sea is for their own by force whichever served their political or economic ends and so long as no stronger than they came to rule. When Alexander the Great relied on sea power to conquer nation Greece started to consider the Mediterranean their own. Then Rome declared the Mediterranean its own, or mare nostrum. Thousand years later Dutch jurist Hugo Grotius said that any state does not have sovereignty over high seas.

In early 17^th century, he advocated the open access to the ocean for all nations ( mare liberum ) but other scholars like seldom believed that ocean should be divided upon coastal states or naval powers ( mare clausum ) which refers that any sea which is under the jurisdiction of any particular country are closed to others. But the modern concept of the high sea was propounded by Grotius.

The codification has started under the auspices of the League of Nation. It conducted the Hague conference in the year of 1930. In 1956 United Nation held its first conference on Law of sea at Geneva which stated the right to use or exploit its natural resources and incorporated in the 1958 Geneva convention where Article 2 states that high seas are open to all nations.

It includes:

1. Freedom of navigation
2. Freedom of fishing
3. Freedom to lay submarine cables and pipelines
4. Freedom to fly over the high seas.

But the crucial drawback of this convention was that there was no uniformity, where the rules of maritime law were based on the practices of new dominant maritime power. So many times only because of their different interest practices were not uniform.

So again in the year of 1982 United Nation held its third conference on laws of the sea where Art 87 states that high seas are open for all nations whether for coastal or landlocked but it laid down certain conditions which includes:

1. Freedom of navigation.
2. Freedom of over flight.
3. Freedom to lay submarine cables and pipelines subject to part VI.
4. Freedom to construct artificial islands.
5. Freedom of fishing.
6. Freedom of scientific research.

These shall be exercised by all states but for the interest of other states in their exercise of the freedom of high seas that considered as a right under the convention with respect to activities in the area. [1]

II. Dispute Settlement Mechanism Under UNCLOS

There are a number of procedures mentioned under United Nations Convention on the Law of the Sea that impose a basic obligation on a member state to settle the dispute by peaceful means but it allows parties to choose the manner of dispute and choice the forum to settle the dispute. These three tribunals are Law Of Sea Tribunal ( LOST), Sea Bed dispute chamber under the law of sea tribunal mentioned under Art 186 of the convention, The International Court of Justice mentioned under Art 287 (1) (b), a special arbitral tribunal mentioned under Article 287 ( 1) (d), conciliation under Article 284 and any other procedure agreed by the parties.

The functional system of these procedure allows a party to specific dispute access to a forum that is specialised of that disputes which parties have. So the functional system contained in two places one is special arbitration procedure mentioned under annex viii and the sea bed dispute chamber under section 6 of part xi.

Annex viii states that parties having dispute relating to fisheries, protection and preservation of the marine environment, marine scientific research and navigation including pollutions from vessels can submit their contention under this Annex viii. It also provides a separate list of expert for each of the areas mentioned earlier.

The SBDC is for the dispute arising out of the area. But this is having jurisdiction over the dispute between member states that concerns about interpretation or application of part xi mention under Art 187 (a) if any act or omission which are allegedly a violation of part xi by any member state and the authority mentioned or misuse of power mentioned under Art 187 (b) etc. This chamber is composed of eleven members, selected by majority votes of LOST, under Article 4(5) of Annex vi.

The general system allows party for the dispute arising out of the draft convention and settled by the general forum of the parties choice that includes LOST, ICJ and arbitral tribunal constituted under Annex vii.

But in case if there is any dispute arising out of High Seas for that no international body has been created under the convention. But the convention mentioned about national jurisdiction for criminal punishment that includes penal jurisdiction in matters to a collision, under Art 97 of this convention. Jurisdiction for the act of piracy is mentioned under Art 105, transport of slaves is mentioned under Article 99, the unauthorised radio broadcast is stated under Article 109(2).

Dispute arising out of national jurisdiction includes freedoms of navigation (Art 87 (1a)), over flight Art (87 (1b)), laying of submarine cables and pipelines Art 87 ( 1 ) (c), construction of artificial island Art (87(1d)), fishing Art (87(1e) and scientific research (87(1f). [2]

In case of settlement of a dispute regarding high sea fisheries dispute, it is divided into four sections under UNCLOS:

• Procedures under regional arrangement: If states have the management regimes for stocks is preliminary regional dispute settlement then it is appropriate to go for regional dispute settlement. Under Art 282 Convention recognises the mechanisms and procedures, its importance under regional agreements. If regional procedures are not applying upon any state then alternative means for dispute resolution should be provided as states fishing on high seas does include these too.
• Compulsory Conciliation: This is for highly migratory fish stocks on the high seas that interact with exclusive economic zone regime for such fisheries. It has been mentioned under Art 297.3(b) (i) of UNCLOS that if any dispute arises relating to sovereign rights of coastal states in exclusive Economic Zone with respect to living resources that are not subject to this procedure but if the coastal state failed to comply with its obligation to ensure through proper conservation and management measures that the maintenance of the living resources in the EEZ is not seriously endangered.
• Special Arbitration: This is the special procedure that is flexible and permits various procedure by agreement on an ad hoc basis for each case.
• Fact Finding Approach: This procedure can be either conclusive or persuasive depending upon parties. Recommendations can also be formulated by the special Arbitral Tribunal based on the finding of the fact mentioned under ANNEX VIII, Art 5.3. [3]

III. Southern Bluefin Tuna Case

This cases arose out of fishing for southern bluefin tuna of Australia, Japan and New Zealand. In may 1993 these three states signed the convention for the conservation of southern bluefin tuna as they realised the dramatic reduction of SBT. The objective of this convention was to decide measure for management of SBT that allows catching fishes of 11,750 tonnes. In the year of 1998, Japan decided to start experimenting fishing programme for the uncertainty of stock assessment but New Zealand and Australia did not allow because that violates the framework of the existing convention which leads to the dispute among them.

They filed a claim against Japan and filed the request for provisional measure with ITLOS but Japan challenged the jurisdiction. Because under that convention Japan stated that there was not any risk of irreparable injury of the fishes for their action and Japan will compensate to those state if anything happens.[4]

It was found by the arbitral tribunal that if any dispute arises among parties to the convention regarding interpretation or implementation of this convention then they can resolve the dispute by negotiation, inquiry, conciliation, mediation, arbitration, judicial settlement or any other peaceful means. Japan’s action violated the Art 64, 116 to Art 119 and 300 of the law of the sea. According to Japan, the arbitral tribunal should be established as per Art 290 (1) of the law of sea convention.

It was decided that conditions laid down under Art. 290 (5) of the law of the sea convention was met by the applications submitted by other two states and it had prima facie jurisdiction over this case. But tribunal failed to raise the issue under the compulsory conciliation mentioned under the Art 297 ( 3) of the convention. [5]

IV. Criminal Jurisdiction for ship collision and marine pollution in high seas: M/V Earnest Hemingway case 2015

There was a collision between Liberian Container carrier, M/V Earnest Hemingway and a Korean fishing boat which was headed towards N-5 Cemetery on 16 January 2015, about 10 miles east of Busan South Korea where M/V Earnest Hemingway headed towards N-5 Cemetery in Busan at 14 knots speed. At around 2 O’clock in the direction about 8 miles a Korean fishing boat Geunyang ho was operating sailing at a speed of approximately 8 knots to 14 knots but it was misunderstood by the M/V Hemmingway’s second officer and an able seaman, Philippine nationals that the Korean fishing boat was there and continuing its sailing which leads to a collision between them around 3:31.

This accident resulted in the death of the captain and a fisherman of Geunyang ho, Korean nationals due to falling into the sea. The boat was also sunk at sea and around 600 litres of fuel oil were spilt into the sea. After that incident, M/V Earnest Hemingway cast its anchor at N-5 Cemetery in Busan, South Korea at around 4:54 and departed toward Qingdao port, China, around 11 O’clock but it came back in Busan as per the direction given by the coast guard.

In respect to this incident the second officer of M/V Earnest and the seaman prosecuted by the Bussan District court for not meeting the obligations to change the sailing direction or decelerating to prevent the ship collision for not using the sound signals, light emission signals and communication device as warning signs. The ship also escape from that place after that incident and did not felt to rescue which violates the Act on “Aggravated punishment etc, of specific crimes, “the specific crimes Act”.

Further, it also violates the Marine Environment Management Act for oil spills. The district court imposed a fine of two million of two defendants but on the other charges, the ruling was dismissed due to the lack of jurisdiction.

As per the decision of Permanent Court of International Justice south Korea lacks the jurisdiction under Article 97 (1) of UNCLOS because the court stated that it applies for all criminal and crew members who are liable for the collision and other navigational accidents and physical damage exercised by the flag state and the state of the alleged offender’s nationality so the exclusive jurisdiction of the flag state on high seas has the superior position than other states. So in this situation, it would be reasonable for them to exercise complementary jurisdiction if the flag state and the state of the alleged offender’s nationality did not exercise criminal jurisdiction.

UNCLOS also prescribes that if any vessel voluntarily enters into the state’s port or offshore terminal and caused marine pollution in state’s territorial sea or EEZ.

If marine environment pollution is tried by South Korea as per the jurisdiction of the flag state of the violated vessel and UNCLOS prescribed the jurisdiction of coastal state based on the severity of pollution and damages marine lives then it must be said that we should look into this matter more seriously and we need to implement UNCLOS more efficiently and it needs an amendment regarding this matter.[6]

Conclusion and Suggestions

This marine life is an asset likewise our environment. It is our responsibility to protect it, to conserve it. Laws have no life until and unless we implement it properly and we deliberately fails to do it. It means that we have a lack of awareness and lack of consciousness. We are also not willing to protect and preserve it because we are trapped in a curse of high commercial value.

As quoted by William Shakespeare “Fishes live in the sea, as men do a-land; the great ones eat up the little ones” it is the common phenomena in today’s world, people are always running behind to earn millions of dollar annually and for that, they are ready even destroy the natural resources. They don’t bother to follow the laws and policies implemented by the states and on the other hand, states are also failed to implement these because they are very weak and fragile in nature.

It is required to implement laws and policies properly and amend UNCLOS to make its penalty more strict so that states can think twice before violating any provisions. UNCLOS needs to establish a special tribunal for high sea matters “International Tribunal For High Sea” that should exclusively function for high sea cases. Because other bodies are already overburdened with other issues that arise from other matters so this body shall only focus onto the high sea matters for resolving the issue in a more efficient manner. Though the high sea is closed for fishing now. Because it has been reported that there are almost 61% catch and capture from high seas having 71% of landed values.

This is the main reason to propose for closing the high seas to illegal fishing and needs to be governed by a new implementing agreement added to the UNCLOS with some supporting measure by other UN bodies that is FAO and the convention on biological diversity.

It also needs a co-operation from geographically dispersed and technologically equipped coastal states or it needs to be created a new global policing agency funded and established under the United Nation or by International Criminal Police Organisation (INTERPOL) that impose penalties on violators and take certain other measures in regard to this issue. It may also help violators to reach before “International Tribunal For High Sea” and resolve the case in the easiest manner as much as it can. [7]

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[1] Historical overview, Chapter 2: shodhganga.inflibnet.ac.in, Pg No. – 50 to 57

[2] George A. Pierce, Denver Journal of International Law and Policy, Volume 10, Pg No. – 332 to 346

[3] https://enb.iisd.org/vol07/0710002e.html, Dispute settlement (15/11/2020, 12:18 P.M)

[4] Courses.kvasaheim.com ( 15/11/2020, 12:34 pm )

[5] Simon Marr, The Southern Bluefin Tuna Cases: The Precautionary Approach and Conservation and Management of Fish Resources , EJIL ( 2000) , Vol11, No. 4 , PG NO – 817

[6] https://www.tandfonline.com/doi/full/10.1080/25725084.2020.1717304 ( 15/11/2020 , 12:42 pm )

[7] U. Rashid Sumaila, Vicky W.Y. Lam, Dana. D Miller, et.al: Winners and losers in a world where the high seas is closed to fishing, scientific reports, 5: 8481 , DOI : 10, 1038/ srep08481 , PG NO 2 And 4.

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