Part ?.
Legal problems associated with:
a. Response to oil spill incidents in open waters caused by foreign flag vessels
b. Response to oil spill incidents within your territorial waters caused by foreign flag vessels
Introduction
Freedom of navigation is traditionally the general principle laid down in customary international law. However, several major acute oil spill incidents from such as the TORREY CANYON (1967), AMOCO CADIZ, EXXON VALDEZ (1988), BRAER (1993) and now the NAKHODKA incident, emphasised that there must be a limitation to this principle on the basis of the interests of the coastal state. This part of the paper will focus upon those limitations related to oil spill incidents caused by foreign flag vessels.
a. Open waters
The term <> is understood as the sea area beyond the outer limit of the territorial sea, which will include the High Seas and the Exclusive Economic Zone (EEZ). According to Art. 3 of the UN Convention of the Law of the Sea of 10 December 1982 (UNCLOS) <>. Several coastal states has declared a territorial sea of 12 nautical miles. Norway has an outer limit at 4 nautical miles. In the open waters there is according to UNCLOS Art. 87 no.1 and Art. 58 no.1 freedom of navigation.
However, customary international law on the basis of the principle of necessity in a situation of distress gives a coastal state a right which is superior to the freedom of navigation. This right is in particular expressed through the International Convention relating to Intervention on the High Seas in cases of Oil Pollution Casualties of 29 November 1969. The adoption of the Convention was a direct follow-up of the TORREY CANYON oil spill outside Cornwall in the English Channel in 1967. The Convention has been ratified by at least 59 countries. It entered into force 6 May 1975. The International Maritime Organisation is the secretariat for the Convention.
According to Art. 1 of the Convention the Contracting Parties <>.
The Convention defines its geographical application to the High Seas. However, because the concept of Exclusive Economic Zone was developed after the Convention was adopted, the Convention must be interpreted also to cover the EEZ.
There are several conditions that have to be fulfilled before an intervention may take place:
・ maritime casualty; which according to Art.?.1 means <>. In general the casualty will have to be considered as severe and difficult to master for the crew.
・ danger to their coastline or related interests; a coastal state can only intervene if the accident threatens its own coastline. <> will according to Art. ?. 4 mean for instance important fisheries, tourist attractions or conservation of wildlife. Probably it will also include offshore installations such as oil rigs.
・ expected to result in major harmful consequences; it is not indifferent what kind of consequences the oil spill may have on the coastline or related interests. The consequences will have to be grave. However, probably this evaluation may be undertaken on the basis of a worst case scenario. It can not be justified that the coastal state will have to refrain from intervening because of uncertainty of the real consequences.
・ grave and imminent danger.....reasonably be expected; the danger of the harmful consequences must be <> and there must be a clear causal link between the casualty and the expected consequences. In addition to these conditions there is in Art. ? an extensive procedure that the coastal state have to
