Anthony Aust. Handbook of International Law

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to notify immediately any state (not necessarily a party) which is or might be physically affected by a

nuclear accident in its territory, or on a ship or aircraft on its register, from which a release of

radioactive material occurs, or is likely to occur, if the material has entered, or may enter, the

territory of another state and cause significant radiological safety concern. The Convention entered

into force in 1986 and now has ninety-two parties, including most nuclear energy states. The

Convention on Nuclear Safety 1994

does not materially add to the powers of the IAEA.

The marine environment

The forty-six Articles of UNCLOS devoted to this subject demonstrate the importance given to

preventing pollution of the marine environment. As with other environmental matters, the rules are

detailed and complex, and here one can only sketch in the principal points.

Most of the law is to

be found in general provisions of UNCLOS and detailed provisions in numerous general, regional

and bilateral treaties dating from the 1960s onwards. The most important general treaty is the

International Convention for the Prevention of Pollution from Ships (MARPOL) adopted by IMO in

1973. It now has 130 parties representing 97 per cent of the world’s shipping tonnage. This covers

all types of intentional pollution of the sea by ships, except dumping of waste. The all-important

annexes to it are frequently amended.

Regional treaties follow MARPOL.

UNCLOS lays down the rules under which such international standards can be enforced. Flag

states have a duty to enact laws applicable to their flag ships for the prevention, reduction and

control of pollution. These must embody at least generally accepted international rules and

standards, such as those laid down by MARPOL Annexes and . Flag states have a duty to

enforce the legislation wherever the infringement occurs (Article 217). Coastal states have certain

powers to legislate for foreign ships in their territorial sea or EEZ. A coastal state has the right to

arrest foreign ships for certain breaches of its anti-pollution laws in its territorial sea and EEZ

(Article 220); otherwise the flag state can effect the arrest. A

56. ILM (1994) 1518; UKTS (1999) 49; B&B Docs. 307. See Birnie and Boyle, pp. 461–3.

57. For a detailed, but not exhaustive, account, see Churchill and Lowe, pp. 328–99. See also Birnie and

Boyle, pp. 347–403.

58. ILM (1973) 1319; UKTS (1983) 27; B&B Docs. 189. Given the frequent amendments to MARPOL,

particularly its annexes, the best source is the regularly reprinted text of the treaty published by the IMO,

available on its website, www.imo.org/imo/links/lnkstart.htm.

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port state has wider powers over a foreign ship: when it is in its ports, the state can arrest and

prosecute the ship for violation of its anti-pollution laws committed while in its territorial sea or

EEZ (Article 220). It can also do so in respect of pollution of the high seas (Article 218). Moreover,

if it is unseaworthy and therefore a threat to the marine environment, the port state can prevent it

sailing (Article 219).

None of the above applies to warships or other state vessels on government, non-commercial

service (Article 236).

Emergencies

If as the result of an incident at sea (collision, stranding etc.) a foreign ship is causing or is

threatening to cause, major pollution a coastal state may in its territorial sea or EEZ, or even on the

high seas, take such direct measures as may be necessary to prevent, mitigate or eliminate an

imminent danger to its coastline.

In 1967, the oil tanker Torrey Canyon was stranded on the high

seas off the United Kingdom spilling all its 120,000 tons of crude oil. The Royal Air Force bombed

it. The International Convention on Oil Pollution Preparedness, Response and Co-operation 1990

provides for co-operation to deal with oil pollution incidents, including the sharing of costs.

Liability

The International Convention on Civil Liability for Oil Pollution Damage 1969

was replaced in

1992 by a Convention bearing the same title.

It imposes liability on a shipowner if oil from his

ship damages the territory, territorial sea or EEZ of a party. The liability is generally limited. The

International Convention on the Establishment of an International Fund for Compensation for Oil

Pollution Damage 1971

supplemented the 1969 Convention, but was replaced in 1992 by a

Convention, again of

59. See Article 221 and the International Convention relating to Intervention on the High Seas in Cases of

Oil Pollution 1969, 970 UNTS 212 (No. 14049); ILM (1970) 25; UKTS (1975) 77, which also applies to

the EEZ.

60. 1891 UNTS 78 (No. 32194).

61. 973 UNTS 3 (No. 14097); ILM (1970) 45; UKTS (1975) 106

62. B & B Docs. 91; but see www.imo.org/imo/links/lnkstart.htm for the up-to-date text.

63. 1110 UNTS 57 (No. 17146); ILM (1972) 284; UKTS (1978) 95.

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the same name.

If the shipowner is not liable or is unable to pay in full, or the limit of liability is

exceeded, compensation may be payable by the Fund. There are also treaties imposing strict liability

for damage to the marine environment by hazardous and noxious substances and by radioactive

material.

Dumping

The Convention on the Prevention of Marine Pollution by the Dumping of Wastes and Other Matter

1972 (previously known as the ‘London Dumping Convention’, and now, as amended by a 1996

Protocol, known as the ‘London Convention’)

prohibits the dumping of waste at sea. The main

exceptions are dredged materials, sewage sludge, fish-processing wastes, ships, and continental shelf

oil and gas installations. Incineration of waste at sea is also prohibited

Hazardous wastes

The (Basel) Convention on the Control of Transboundary Movements of Hazardous Wastes and

their Disposal 1989

is particularly successful, now having 165 parties, but not yet Afghanistan,

Haiti or the United States. It covers most waste, with the exception of radioactive waste. If a party

prohibits the import of hazardous waste, another party must not permit its export to that party. Even

if a party has not prohibited the import, other parties must not permit export of the waste to that

party if the latter has not given written consent to the specific import or if it does not have the

capacity to dispose of the waste in an environmentally friendly manner. Illegal traffic in hazardous

wastes is made a criminal offence. If wastes are illegally exported, the state of export must ensure

that the wastes are taken back. If this is impracticable, the state of export must ensure that the wastes

are disposed of properly.

64. UKTS (1996) 87; B&B Docs. 107, but see www.imo.org/imo/links/lnkstart.htm for the up-to-date text.

65. See Churchill and Lowe, pp. 361–3.

66. ILM (1972) 1294 and ILM (1997) 7, but see www.imo.org/imo/links/lnkstart.htm for the up-to-date

text.

67. 1673 UNTS 126 (No. 28911); ILM (1989) 657; UKTS (1995) 100; B&B Docs. 322 or www.basel.int.

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Liability for environmental damage

In the Trail Smelter case, Canada was held liable for damage in the United States caused by the

fumes from a Canadian smelter.

This was only an application of the long-established international

law principle of state responsibility.

Most treaties do not include anything about liability, the

general principle being enough. However, in the case of international environmental damage, some

treaties have attempted to set out expressly what constitutes damage and how it is to be assessed,

what sort of liability should apply (absolute, strict or fault), and what remedy should be available

(compensation, remedial work or restoration). The issues are highly charged, not least because a lot

of money may be at stake. Success has been limited because damage to the environment is a much

more complex matter than, say, loss of business or personal injury. Attempts to agree general

principles of liability have met with only limited success (for example, with respect to Antarctica)

or have led to treaties that will never enter into force or will have few parties. Although the treaties

on liability for maritime pollution and nuclear accidents (see above) are quite successful, devising

and agreeing on liability regimes for other environmental damage has been much more difficult.

The Council of Europe’s Convention on Civil Liability for Damage Resulting from Activities

Dangerous to the Environment 1993

needs only three ratifications to bring it into force. By the end

of 2004, it had received only nine signatures and no ratifications. In view of developments in the last

ten years, it is most unlikely ever to enter into force. By the end of 2004, the 1999 Protocol to the

Basel Convention on Liability and Compensation for Damage Resulting from the Transboundary

Movement of Hazardous Wastes

had been signed by only thirteen states, and six (all developing

countries) had ratified, twenty being needed to bring it into force. The 2001 ILC draft Articles on the

Prevention of Transboundary Harm from Hazardous Activities are controversial and have not been

adopted as a treaty.

68. See p. 329 above.

69. See p. 410 below.

70. See p. 358 below.

71. See generally Birnie and Boyle, pp. 279–82.

72. B&B Docs. 132; ILM (1993) 1228.

73. See www.basel.int.

74. Birnie and Boyle, pp. 106–7.

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17 International civil aviation

An airline ticket to romantic places; and still my heart has wings.

Cheng, The Law of International Air Transport, London, 1962

Matte, Treatise on Air-Aeronautical Law, Montreal, 1981

Gardiner, International Law, London, 2003, Ch. 10

Shawcross and Beaumont, Air Law, London, 1977 (includes the texts of many treaties and legislation)

www.icao.int (includes the current status of most multilateral aviation treaties)

www.iasl.mcgill.ca/airlaw/index.htm (for a specific collection of air law instruments)

International civil aviation is not regulated in the same way as shipping. As well as being quite

different in character, air travel is a much newer form of transport and has been regulated by treaty

almost from the beginning. The Chicago Convention on International Civil Aviation 1944 (in this

chapter, ‘the Convention’)

provides the essential framework and established the International Civil

Aviation Organization (ICAO). The Convention has 188 parties.

(References to numbered Articles and annexes are to those of the Convention, unless otherwise

indicated.)

International Civil Aviation Organization

The International Civil Aviation Organization (ICAO) is a UN specialised agency with headquarters

in Montreal, Canada. Its general purpose is the planning and development of international air

navigation. It has wide and comprehensive regulatory functions, especially with regard to the safety

1. Holt Marvell, These Foolish Things (song, 1935).

2. 15 UNTS (1948) 295 (No. 102); UKTS (1953) 8. The Convention has been amended several times: see

Shawcross and Beaumont, Vol. 2 or the (hard-to-navigate) ICAO, website, www.icao.int.

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of aircraft, although their implementation is for national aviation authorities. The ICAO Council

adopts, by a two-thirds majority, International Standards and Recommended Practices and

Procedures. These are contained in eighteen detailed Annexes to the Convention, which take effect

unless a simple majority of states reject them within three months (Article 90).

The Standards are

regarded as legally binding on the parties to the Convention, although a party can depart from a

Standard by notifying ICAO.

Civil and state aircraft

The Convention governs only civil aircraft, that is, all aircraft other than ‘state aircraft’, which are

defined as ‘aircraft used in military, customs and police services’ (Article 3). State aircraft need

special authorisation (known as ‘diplomatic clearance’) to fly in the airspace over, or land in, the

territory of another state. An ‘aircraft’ is defined in Annex 7 to the Convention as ‘any machine that

can derive support in the atmosphere from the reactions of the air other than the reactions of the air

against the earth’s surface’. They include balloons, dirigibles (airships) and gliders, but not

hovercraft, rockets, missiles or orbiting satellites.

National airspace

The Convention recognises that ‘every state has complete and exclusive sovereignty over the

airspace above its territory’,

and that the territory of a state is the land and territorial sea (but not the

contiguous or exclusive economic zones) under the sovereignty, suzerainty, protection or mandate of

the state (Articles 1 and 2). Article 6 thus provides that no scheduled international air service may be

operated over or into the territory of another state except with its permission or authorisation,

although there is a right of transit over archipelagic waters and some straits.

These provisions are

fundamental to the regulation of international air services. Permission can be given in three ways:

If the two states are parties to the International Air Services Transit Agreement 1944

(IASTA).

(IASTA must not be confused with IATA

3. Published by the ICAO. See the ICAO website, www.icao.int, for a list of Depositary Libraries.

4. As to the distinction from outer space, see p. 367 below.

5. See pp. 306 and 308 above.