Many CourtsLittle Jurisdiction No Settled Law?

Dr. Irini PapanicolopuluSenior Researcher, University of Milano-BicoccaLecturer in International Law, University of Glasgow

Porto, 23 May 2014

Pollution of the marine environment

ConsequencesDegradation/destruction may concern all aspects of the natural environment:• Animals• Vegetation• Soil• Water systems• Ecosystems

Costs• Exxon Valdez (Alaska, 1989): Cleanup cost in the region of

US$2.5 billion and total costs (including fines, penalties and claims settlements) estimated up to US$7 billion

• Amoco Cadiz (France, 1978): cost about US $282 million, of which about half was for legal fees and accrued interest

• Erika (France, 1999): total of 76 million FF (11.4 million euros) was allocated to compensating potential victims, through the ship owner's insurance. Additional compensation was made available through IOPC funds, reaching up to 1.119 billion FF (168 million euros), making a total of 1.195 billion FF (179 million euros)

• Prestige (Galicia, 2002): clean-up costs amounting to some US $2.8 billion

Actors

•States▫Flag▫Coastal ▫National

•International Organisations▫EU▫Regional IOs▫Subject-specific

IOs

•Local communities•Individuals

▫Master/crew/operators

▫Affected▫Victims

•Classifications societies

•P&I and insurers•NGOs

Courts

•ITLOS•CJEU•Arbitral Tribunal (Annex VII)•Arbitral Tribunal (OSPAR) •ECHR•Domestic tribunals

Jurisdiction

•Sources ▫UNCLOS▫EU law▫Other treaties▫National legislation

•Limitations▫Ratione materiae▫Ratione personae▫Ratione loci

Law?

Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein.

Article 344 TFEU (ex Article 292 TEC)

Law?If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree.

Article 282 UNCLOS (Obligations under general, regional or bilateral agreements)

Law?

‘it is interesting to examine the approach taken by the Tribunal in cases relating to the detention of a foreign national by the coastal State and the fixing of the amount of bail’

ECtHR, Mangouras v Spain

Law?•Conflict of jurisdictions

▫Primacy (prohibition to submit disputes to other courts)

▫Subsidiarity (prevalence of other dispute settlement mechanisms

•Conflict of legal rules▫Primacy▫Subsidiarity▫Taking into account▫Factual relevance

‘The environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn.’ICJ Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996, para. 29

Thank you!