| Digesta 2004 |
THE CASE CONCERNING INTERDICTION OF MARITIME TRAFFIC IN THE SEA OF TRANQULLITY
Memorial submitted on behalf of the Government of the Peoples’ Republic of Industria
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THE CASE CONCERNING INTERDICTION OF MARITIME TRAFFIC IN THE SEA OF TRANQULLITY
Memorial submitted on behalf of the Government of the Protectorate of Hedonista
It is the submission of Hedonista that the Court has no jurisdiction to entertain the dispute pursuant to Art. 287 (1 b) of the United Nations Convention on the Law of Sea[1] on three grounds. First, it is submitted that, since the merits of the present dispute arise under the Treaty On the Protection of the Marine Environment (TOPMEN), the dispute settlement procedure shall be determined under this treaty. Secondly, under Art. 282 of the UNCLOS, it is submitted that the dispute settlement procedure of the TOPMEN prevails over the one of the UNCLOS. Finally, it is submitted that Industria is not a party to the UNCLOS, until its final position with regard to its Declaration, is clarified.
The regime on successive treaties is regulated under Art. 30(3) of the Vienna Convention[2], where it is provided that the earlier-in-time treaty, if it is not terminated or suspended by the later-in-time treaty, still applies to the extent that its provisions are compatible with the later-in-time one. Article 311(2) of the UNCLOS expressly permits other agreements as long as they are compatible with the UNCLOS and the rights and obligations of other States are not affected. Applied in the present dispute, these Articles preclude the termination of the TOPMEN since it is compatible with the UNCLOS.
TOPMEN is a special treaty dealing with the EEZ of the parties within the Sea of Tranquillity. It is a distinct treaty regime, regulating relations between parties in a specific area, and provides for a specific dispute settlement procedure.
The question of jurisdiction in the present dispute is closely related to the treaty to be applied. The issue is under which treaty the merits of the present dispute shall be adjudicated. It is under this treaty (TOPMEN) that the dispute settlement procedure will be applied. This was upheld by the ICJ in the Ambatielos case[3].
It is alleged that Hedonista has restricted freedom of navigation of Industria under the UNCLOS. However, the reasons of this restriction are of great importance in the context of the present dispute. It is the submission of Hedonista that this dispute does not concern freedom of navigation, but the protection of the marine environment of the Sea of Tranquillity. Consequently, the merits of the dispute arise under the TOPMEN and it is arbitration provided in TOPMEN that is competent to deal with matters of fact and law. Thus, it is submitted that the Court has no jurisdiction to address the dispute.
In the event that the Court finds that UNCLOS is applicable in the present dispute, it is submitted that the dispute settlement procedure of the TOPMEN prevails over the one of the UNCLOS. A dispute concerning the interpretation or application of the UNCLOS may be subject to a procedure different from those provided for in the UNCLOS, by virtue of another agreement of the parties. Under Art. 282 of the UNCLOS, in such a case, this procedure shall apply in lieu of those provided for in the UNCLOS, so long as it entails a binding decision and the parties have not agreed otherwise. In this sense, such a procedure prevails over those established in the UNCLOS which revive only if it does not finally lead to a binding decision[4].
It is submitted that Art. 282 is applicable in the present dispute. Both Industria and Hedonista have agreed, by virtue of the TOPMEN, to refer such disputes to peaceful means or, in case of disagreement, to arbitration. The present dispute, therefore, has to be submitted to this procedure first. The procedure of the UNCLOS may be revived only if no binding decision is not reached through the procedure of the TOPMEN.
4.1. The declaration of Industria consists in essence a disguised reservation
Entry into a multilateral treaty is often accompanied with declarations amounting to policy statements, interpretative declarations or reservations. The legal character of a declaration is defined by means of interpretation in accordance with general international law[5], the original intention of the State issuing the declaration and its substantive concept[6]. The object of interpretative declarations is the clarification of the scope of a treaty or of certain of its provisions, aiming at expressing the interpretation most favoured by the declarant[7].
However, a declaration may amount to a disguised reservation. The characterization of a declaration is then a matter of substance and not of form[8]. In fact, under Art. 2 (1 d) of the Vienna Convention, the scope of a reservation is to restrict or alter the legal application of certain provisions with respect to the reserving State[9]. While interpretative declarations are deprived of any binding effect[10], reservations – even disguised ones – enjoy the respective legal effects.
On ratification, Industria introduced a declaration on Articles 122 and 123 of the UNCLOS. It is the purpose of these Articles to promote the co-operation with respect to enclosed or semi-enclosed seas. According to the declaration, the only obligation understood is that of publishing in the Official Gazette details of any action which may have an impact on the environment or natural resources of the Sea of Tranquillity or of any legitimate use of that sea. The effect of the declaration is to eliminate the obligations arising from these Articles.
The obligations provided for in these Articles are limited and, thus, certain stipulations are excluded. This, in fact, is not within the scope of an interpretative declaration, but within the scope of a reservation. The engagements resulting from Articles 122 and 123 cannot be interpreted under any circumstances as to refer only to the duty of publication. It is evident that such a limitation can only constitute an unlawful right to the reserving State to ignore its undertaken obligations. Therefore, it is submitted that the declaration, which accompanied the instrument of ratification of Industria, is, in essence, a reservation.
4.2 The reservation of Industria is inadmissible
There is no unlimited freedom of participation in a treaty. States cannot become parties to a convention on their own terms[11]. The formulation of reservations is subject to articles 19 to 23 of the Vienna Convention. Under Art. 19 (a) of the Vienna Convention, a treaty may prohibit the making of reservations. Such a clause aims to ensure the integrity of the treaty. However, States may proceed to establish reservations notwithstanding the prohibition. In such a case, the question arises as to the legal status of the prohibited reservation. Such a reservation is contrary to the terms of the convention, making the undertaking of an obligation conditional upon the State’s position. Thus, such a reservation is inadmissible and it cannot produce any legal effects[12].
Mutatis, mutandis this is the case in the present dispute. Under Art. 309 of the UNCLOS, reservations are prohibited. Due to this prohibition, the reservation of Industria is inadmissible. Consequently, the desired legal effects cannot be produced thereby.
4.3. The ratification of Industria is affected by the inadmissibility of the reservation
Ratification expresses the final consent of a State to be bound by a treaty[13]. Henceforth, the State is a party to the convention having officially accepted the obligations arising from that convention. The question, however, is the legal status of a ratification including a prohibited reservation[14].
Instances of State practice in this respect are rare. The question has not been authoritatively answered. Both in the Norwegian Loans case[15], and in the Interhandel case[16], the Court reached its decision on different grounds. In the Right of Passage over Indian Territory[17] and in the Reservations to the Genocide Convention case[18], there was no application of Art. 19 (a) Vienna Convention. In conclusion, the admissibility of a reservation and its legal consequences are an issue to be decided in concreto[19].
It is submitted that either the reservation is severed and treated as a nullity, or the effect of the inadmissibility is extended to the entire instrument of ratification. In the first place, severance is both rational and desirable, only if the reservation in question does not constitute an essential part of the legal instrument. Nevertheless, the doctrine of severance is applicable only to provisions which are not relative to the undertaking of obligations[20]. On the contrary, if the reservation is indeed an integral part of the State’s consent to be bound, it cannot simply be erased. Subsequently, the ratification will stand or fall as it is without the option of separability[21]. It is a general principle of the law of treaties that obligation is based on consent. A legal instrument which in essence avoids the undertaking of an obligation, but determines the very existence of that obligation is not a cognizant legal instrument. It is not a legal instrument at all[22].
Moreover, the same conclusion, namely the subsequent inadmissibility of the ratification, can be reached on different grounds. Under Article 17(1) of the Vienna Convention, partial ratification is impermissible when reservations are prohibited. If such a reservation as those envisaged in Article 19(1) of the Vienna Convention is in fact part of the ratification, the ratification is considered inadmissible as a whole.
In respect of the case in question, the fact that Industria does not interpret the provisions as imposing upon Industria any obligation beyond that of publication, cannot be disregarded. The object of the declaration is to exclude the legal effects of Articles 122 and 123. These Articles establish specific undertakings about semi-enclosed seas. The undertakings in question define the necessity and the terms of co-operation on matters relating mainly to the protection of the marine environment. It is noteworthy that Hedonista and Industria are the only States with coastlines abutting onto the Sea of Tranquillity and the reservations were made upon the only two Articles dealing with semi-enclosed seas. Thus, it may be presumed that without this proviso, Industria would not have ratified the UNCLOS.
These Articles are premised on co-operation, one of the most prominent purposes of the UNCLOS, as stated in its preamble. As such, a reservation of this kind directly impinges on the substantive context of UNCLOS. Finally, the UNCLOS is not premised on the widest possible acceptance but on the maintenance of its integrity[23]. This is also the reason why every possible effort was made to achieve consensus and not leave any room for making reservations[24].
In conclusion, since the reservation of Industria was made with respect to Articles 122 and 123, it affects the whole instrument of ratification. It is, therefore, submitted that the ratification of Industria is inadmissible.
4.4. Industria is not a party to the UNCLOS until the final clarification of its position regarding the reservation
In case of an impermissible ratification, the issue is whether the reserving State is a contracting party to the convention. Under Art. 16 of the Vienna Convention, ratification indicates the entry of a State in a treaty. In this sense, the participation of a State to a treaty is prevented by an impermissible ratification. Accordingly, impermissibility means mere incapacity to achieve the legal effects of participation[25], at least until it is withdrawn[26].
Article 306 of the UNCLOS provides that this Convention is subject to ratification. Industria, having formulated an inadmissible ratification, is not considered to be a party to the UNCLOS, unless the impermissible reservation is withdrawn.
4.5. The lack of objection on behalf of Hedonista does not constitute tacit agreement
In general, lack of objection constitutes tacit agreement on the international plane. This is provided in Articles 20 and 21 of the Vienna Convention which set out the rules governing the legal effects of a reservation in relation to another party. If an objecting State has not expressed its opposition or has not expressly precluded the entry into force of a treaty as between the two States, then these provisions will apply to the extent of the reservation.
The question is whether the regime of Articles 20 and 21 is applicable to prohibited reservations. It does not appear either legitimate or likely that there was intention of application of these Articles to reservations prohibited under Article 19. It is difficult to see how a contracting State could accept, even tacitly, a prohibited reservation, an invalid instrument deprived of any legal effects. Nevertheless, the rules of Article 21 apply to reservations made in respect of Article 19 and not in violation of it.
State practice has disputed the stipulation of Article 20(5) as codifying customary law[27]. The admissibility of a reservation cannot be assumed by the lack of protest by States. Generally, the practice concerning objections is unclear. It would not, therefore, be safe to regard non-objecting States as having actually acquiesced to a particular reservation[28].
Finally, a State having unlawfully formulated a reservation can neither invoke nor rely on the lack of protest to assert the opposability of its inadmissible instrument. It is reasonable that a State which has entered into a treaty without setting any further limitations cannot bear the burden of objecting to something that, under the terms of the treaty, is not admissible. Preserving the integrity of a treaty is an obligation rather than a privilege[29].
In the present case, the lack of objection on behalf of Hedonista cannot be deemed as acceptance. The relevant provisions of the Vienna Convention regarding the right of objection apply to admissible reservations. Hedonista does not consider it necessary to react towards an unlawfully established reservation.
In any case, Hedonista has preserved its specific interests through the 1990 Treaty, leaving no room for unregulated issues in relation to Industria. It is therefore submitted that Hedonista, in spite of its non-objecting attitude, has never regarded Industria as a party to the UNCLOS.
As the ICJ held in the Case concerning the Appeal relating to the Jurisdiction of the ICAO Council, arguments adduced in the preliminary objections shall not prejudice the merits of a case[30]. In the event, therefore, that the Court finds that it has jurisdiction, it is submitted that Industria was in breach of its obligations under Parts IX and XII of the UNCLOS, under the 1990 Treaty and under customary international law. Furthermore, it is submitted that Hedonista acted in conformity with the UNCLOS, TOPMEN and that, in any event, the state of necessity, under which Hedonista acted, precludes the wrongfulness of its action.
International jurisprudence on environmental protection was rare until recently[31]. The basic principles were stated in the Trail Smelter Arbitration[32], the Lac Lanoux Arbitration[33], the Corfu Channel case[34] and the 1972 Stockholm Declaration[35]. Since then, protection of the environment has drawn extensive legal attention[36]. This is indicated by a number of instruments, notably the Rio Declaration[37] and also upheld by the ICJ in the Gabčíkovo - Nagymaros case[38], and the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons[39]. Protection of the marine environment has grown to become a controversial legal issue[40], composed of a cluster of bilateral, regional and multilateral treaties[41].
2.1. Industria violated its obligations under the UNCLOS
2.1.1. Industria violated its obligations under Part IX of the UNCLOS
It is submitted that Industria has violated Article 123(b) of the UNCLOS, under which States bordering semi-enclosed seas shall co-operate in the exercise of their obligations, observing their duty to protect the marine environment. This Article takes into account the geographic reality of a semi-enclosed sea where the effects of the marine pollution are to be suffered on a great scale, due to the inability of waters to scatter pollution.
Given the fact that Hedonista’s extensive beaches are fringed with world class coral reefs[42], inhabited by specially protected marine mammals[43] and other marine and coastal wildlife, a potential oil-spill becomes a major threat. It is submitted that Industria failed to fulfill the duty to co-operate with the only other State bordering the Sea of Tranquillity. No co-ordination took place as regards the route of ships. Industria failed even to inform Hedonista about the intention to carry dangerous material[44] within its EEZ.
Furthermore, the declaration made by Industria with respect to Articles 122 and 123 of the UNCLOS falls short of the essential concept of co-operation envisaged in those Articles. The publication only of the activities of Industria is inadequate to fulfill its obligations for co-operation in the Sea of Tranquillity.
2.1.2. Industria violated its obligations under Part XII of the UNCLOS
Article 58(3) may serve as general guideline as to the reciprocal rights and duties of the coastal State and of other States in the EEZ after a balancing process. Therefore, the exercise of the rights of other States is subject to limitations set by the coastal State[45]. The activity in which a vessel is engaged and its effects are the criteria of these limitations[46].
2.1.3. Industria violated its obligations under Articles 192 and 194(2, 3b, 5)
The general section of Part XII stipulates the general principles on the protection of marine environment[47]. It is noteworthy that it was difficult for the Committee that prepared this Part to achieve the right balance[48]. Article 192 imposes on contracting parties a general duty to protect and preserve the environment. This is elaborated in Article 194(2), (3b), (5).
Under Article 194(2), States shall take all necessary measures to ensure that their activities will not cause pollution to other States. Article 194(3b) provides particular measures for the prevention of pollution by vessels. Finally, Article 194(5) stresses out the need for stricter measures about fragile ecosystems, threatened or endangered species. The structure of these articles reflects a fundamental change from discretion to duty as the basic anti-pollution principle[49].
It is submitted that the conduct of Industria is not in conformity with these Articles. Industria ignored the possibility of an accident with devastating effects for the marine wildlife. The Victoria Becham accident proves that the standards set out in MARPOL and SOLAS[50] can minimize the risk, but not totally erase it. Furthermore, Industria did not adopt further measures in view of the fragile ecosystem[51] of the Sea of Tranquillity. Therefore, Industria ignored Article 194(5) which expressly introduces stricter measures than these described in MARPOL and SOLAS. In this way, the whole ecosystem has been jeopardized.
2.1.3.1. Industria has violated Articles 198 and 199
Article 198 places upon States the duty of notification of imminent damage likely to pollute other States. In addition, Article 199 sets the obligation of co-operation through contingency planning for responding and eliminating the risk.
Industria, however, did not inform Hedonista about the transport of oil through its EEZ. The number of the ships carrying heavy fuels oil, sailing each week through Hedonista’s EEZ, is, in the event of an accident, an imminent danger for the marine environment. Nevertheless, no joint contingency plans were made to co-ordinate the States’ actions and reach a solution satisfactory to both parties.
2.1.3.2. Industria has violated Articles 204-206
Under these Articles, States shall evaluate the effects of their activities in relation to marine pollution. Article 204 provides for the observation and analysis of the activities in which States are engaged in order to determine the probability of their being harmful to the environment. Article 205 provides for the publication of reports on the effects of such activities. Furthermore, under Article 206, States have the duty to assess the effects of such activities and communicate the reports of the results in the manner described.
These Articles provide for the conduct of an Environmental Impact Assessment[52]. The EIA Principle has gathered general recognition and is to be found in the World Charter of Nature[53], the Rio Declaration[54], in ICJ’s cases[55] and in UNEP documents[56]. EIA is not only a pro-project evaluation, but also a continuous evaluation stressed along with the duty for an appropriate period to elapse before taking any decision for hazardous action and that of notification. It is also noteworthy that 70% of States have espoused the process[57].
Industria did not conduct an EIA on the transport of oil. The effects of the transportation were not thoroughly examined. Besides, no monitoring of the risks of pollution and no reports were made. Thus, Industria failed to meet the standards set in the UNCLOS.
2.1.3.3. Industria has violated Article 211(1) and (2)
Article 211 addresses the issue of pollution from vessels. Article 211(1) establishes the obligation for States to adopt international rules and standards along with routening systems, to cope with the risk of accidents. In addition, Article 211(2) is dealing with the laws and regulations that a State has to incorporate regarding vessel-source pollution, which have to be at least as effective as generally accepted international rules and standards. This is, thus, a process of incorporation of regulations within the legal framework of UNCLOS[58], taking into account the area’s geography and specialized measures justified thereby.
Industria did not meet the requirements provided in Article 211(1) and (2). Industria failed to take one more step beyond MARPOL’s minimum standards, disregarding the fact that the Sea of Tranquillity is a semi-enclosed sea. Moreover, Industria could have chosen a different route for its ships sailing west of the Extra Virgin Islands, avoiding this way any further interference with the sensitive ecological balance of the area.
2.2. Industria has violated the TOPMEN
It is submitted that Industria has also violated Articles 11 and 15 of the 1990 Treaty (TOPMEN), which put an even greater burden upon parties to prevent, by all means necessary, pollution than UNCLOS. Under Article 11 of the TOPMEN, each party has to take all necessary steps to prevent vessel source pollution respectively. Industria did not proceed to adopt all means necessary to prevent pollution from its vessels.
Under Article 15, the parties in exercising their right to implement their environmental policies shall have regard to the respective interests of the other party. Industria’s conduct is not in accordance with this obligation. The route of the vessels, the dangerous freight, the failure to conduct an EIA, the lack of any information, all combined together in the view of Hedonista’s touristic economy show no consideration of Hedonista’s interests.
2.3. Industria has violated customary international law
2.3.1. Industria has violated the principle sic utere tuo ut alienum non laedas
Under this principle, in the field of international environmental law, a State cannot endanger the environment of another State through its activities. This was held in the Trail Smelter and Lac Lanoux arbitrations[59] the Corfu Channel case[60] and recently upheld in the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons[61]. This principle purports to protect the environment as a common amenity[62].
It is submitted that Industria acted in contravention of this principle. Navigation of vessels carrying heavy fuels oil near Hedonista’s coastline endangered the ecosystem not only within Hedonista’s EEZ, but also of the whole Sea of Tranquillity. Therefore, the activities undertaken were in breach of customary international law.
2.3.2. Industria has violated its obligation for co-operation
Under international law, States have the duty to co-operate in order to protect and preserve the environment. This was first held by the tribunal in the Lac Lanoux Arbitration[63] and it has been incorporated in a series of treaties and other instruments.[64]
It has been accepted that the obligation to co-operate entails the notification of measures or activities which might have an impact on other States and the subsequent obligation to enter into negotiations. Notification has emerged in customary law in an attempt to protect the environment from accidents[65], such as the Chernobyl nuclear accident in 1986[66].
At the very minimum, the duty to co-operate involves the taking into consideration of the legitimate interests of other States, as held by the arbitral tribunal in the Lac Lanoux Arbitration[67]. In the Fisheries Jurisdiction case, the Court held that States engaged in activities potentially harmful to the environment are obliged to take into account the rights of other States and the needs of conservation[68]. This formulation applies, mutatis mutandis, to the prevention of pollution of the marine environment by vessels.
In view of the above, Industria was obliged to co-operate with Hedonista in good faith in order to protect the marine environment as the geographical circumstances of the Sea of Tranquillity require. Industria failed to notify Hedonista of the activities it authorized. To this day, Hedonista has not been officially notified as to the route of the ships, their cargo and the number of transports entering the Sea of Tranquillity in close proximity to Hedonista. Industria has not even notified Hedonista of any emergency response plans in relation to accidents.
In addition, Industria did not take into account the legitimate interests of Hedonista in the protection of the marine environment. Hedonista’s economy is largely based on tourism and Industria has systematically ignored this fact. This choice constitutes a further violation of Industria’s duty of co-operation.
2.3.3. Industria has violated the precautionary principle
Under this principle, States are obliged to take action in order to deal with an actual foreseeable risk and subsequent or potential pollution[69]. It has also the effect of reversing the burden of proof. A State carrying out an activity allegedly harmful to the environment has to prove that this activity will not cause harm[70].
It has been argued that the precautionary principle is now accepted in customary international law, and is well established in its application to the protection of the marine environment[71]. The precautionary approach began in the mid 1980’s as guidance in environmental issues[72] and it has, ever since, been incorporated in a series of instruments[73] and treaties[74].
Recent international jurisprudence also confirms this principle. In the Nuclear Tests II case[75], although the issue was not directly addressed by the Court, many judges upheld this principle as part of international environmental law[76]. In the Gabčíkovo - Nagymaros Case, the Court urged States to take into account new environmental norms and standards before and during their activities[77]. By that, it indicated that the parties might rely on newly developed principles of environmental law, including the precautionary principle, if necessary[78]. It was also implicitly applied by the tribunal in the Southern Bluefin Tuna cases[79].
It is submitted a fortiori that the precautionary principle is accepted with regard to semi-enclosed seas. It is notable that this is included in almost every Convention with regard to semi-enclosed seas[80]. This fact indicates the conventional formulation of the need for extensive protective measures in semi-enclosed seas.
It is submitted that Industria has acted in violation of the precautionary principle. Industria did not act with prudence and caution to ensure that effective measures are taken to prevent serious harm to the Sea of Tranquillity. The requirements of prudence and caution are even more relevant for activities held within a semi-enclosed sea. Industria should have taken preventive measures even where there was no conclusive evidence of the possibility of an accident. It is, furthermore, submitted that the onus of proof is placed upon Industria to demonstrate that its activities do not constitute a threat to the environment.
3.1. Hedonista has acted in conformity with the UNCLOS
It is alleged by Industria that Hedonista violated the UNCLOS by restricting the freedom of navigation unjustifiably. On the contrary, it is submitted that Hedonista exercised its rights under Articles 56(1) (b) (iii), 194(1) and 211(5) of the UNCLOS.
Article 56(1) (b) (iii) permits the coastal State to exercise jurisdiction with regard to the protection and preservation of the marine environment. To what degree a State may exercise this jurisdiction is a matter of great controversy[81] It was, therefore, within the jurisdiction of Hedonista to issue Presidential Decree Number 23.
Furthermore, under Article 194(1) States shall take all necessary steps within their capabilities to prevent pollution. Under this Article, coastal States are given significant rights regarding pollution[82]. It is submitted that restriction of navigation under Presidential Decree No. 23 was the ultimate protective measure within the capabilities of Hedonista. The likelihood of another accident along with the lack of cooperation on behalf of Industria forced Hedonista to adopt not a general measure of unjustifiable interference with navigation, but a specialized one applicable only to heavy fuel oil vessels.
Finally, Hedonista exercised its rights under Article 211(5) under which legislative power is prescribed to the coastal State for the prevention of vessel-source pollution[83]. It is unquestionable that the laws and regulations must be compatible with reasonable exercise of their rights by other States, and minimum demands of international organizations[84].
However, particular circumstances require particular and perhaps differentiating treatment. The jurisdictional competence introduced by the UNCLOS is considered inadequate[85]. On the international plane, only a dozen States have enacted legislation modeled entirely or partly on the provisions of the UNCLOS while many States claim extended rights on preventing pollution in their EEZ[86], underlining the modern tendency of coastal States to adopt stricter measures. Frequent ecological disasters leave no other choice to coastal States than to try to utilize the existing legal instrument to the fullest possible extent[87].
Traffic within a semi-enclosed sea along with highly risky cargo multiply the possibility of an accident with devastating effect on marine environment and wildlife. Nevertheless, Industria failed to adopt protective measures. Action had to be taken before it was too late and, therefore, Hedonista was left with no alternative than to adopt strict national legislation.
3.2. Hedonista has acted in conformity with the TOPMEN
It is submitted that Hedonista acted in conformity with Article 15 of the TOPMEN. Hedonista pursued its environmental policy without interfering into the interests of Industria. It is true that all vessels carrying heavy fuels oil were banned from the EEZ of Hedonista. However, it is also true that there is yet another route which all vessels may follow. Thus, no irreversible damage occurred.
3.3. Hedonista has acted under a state of necessity
It is submitted that the state of necessity under which Hedonista acted precludes the wrongfulness of its action. Necessity is part of customary law, it is invoked by States and applied by international tribunals. In the Société Commerciale de Belgique Case[88], necessity was implicitly upheld and in the Gabčíkovo - Nagymaros Case[89], it was accepted as part of customary international law.
The conditions under which necessity may be invoked are provided in Art. 25 of the ILC Articles on State Responsibility. It presupposes that the wrongful act is the only measure against a grave and imminent peril threatening an essential interest of the State. The meaning of essential interest rests upon the circumstances, the particular interests of the State as well as of the whole international community[90]. An imminent peril is considered as such, which no matter how remote it seems, is not thereby less certain and unavoidable[91]. Other lawful means available, however more costly or less convenient, exclude the plea.
Furthermore, necessity may not be invoked if it harms an essential interest of another State or of the international community. In any case, it may not be invoked if the obligation in question precludes the possibility of invoking necessity or the State itself has contributed to it.
Hedonista acted under the state of necessity banning all vessels carrying heavy fuels oil from its EEZ. This act is justified because the grave and imminent peril of a major oil spill in the Sea of Tranquillity threatened essential economic and ecological interests of the State. The only means effective at that time for safeguarding Hedonista’s interests was to intervene promptly. Moreover, this act did not seriously impair the interests of Industria because another route for its vessels was available.
(i) Submissions
In view of the above, the Protectorate of Hedonista respectfully requests the Court to adjudge and declare that:
In view of the fact that the 1990 Treaty imposes on the High Contracting Parties thereto a binding obligation to refer any disputes arising in relation to the marine environment in the Marine Area to a tribunal to be established under Article 23 of the Treaty and that that jurisdiction is an exclusive one, the Court has no jurisdiction to address the dispute; and in the event that the Court finds it has jurisdiction; that Industria was in breach of its obligations under the UNCLOS in particular Chapter IX and XII, of the 1990 Treaty and under customary law.
LIST OF ABBREVIATIONS
Add. Addendum
AJIL American Journal of International Law
Art Article
ASIL American Society of International Law
BYIL British Year Book of International Law
Doc. Document
eds editors
ECHR Pub. European Court of Human Rights Publications
EEZ Exclusive Economic Zone
EHRR European Human Rights Reports
EIA Environmental Impact Assessment
EJIL European Journal of International Law
Ibid. Ibidem
ICAO International Civil Aviation Organisation
ICJ International Court of Justice
ICJ Reports International Court of Justice Reports of Judgements, Advisory Opinions and Orders
ICLQ International and Comparative Law Quarterly
IJMCL International Journal of Marine and Coastal Law
ILC International Law Commission
ILM International Legal Materials
ILR International Law Reports
Indian JIL Indian Journal of International Law
MARPOL International Convention for the Prevention of Pollution from Ships
No. Number
ODIL Ocean Development and International Law
para paragraph
paras paragraphs
PCIJ Permanent Court of International Justice
PCIJ Series A/B Publications of the Permanent Court of International Justice, Judgements, Orders and Advisory Opinions
RCADI Recueil des Cours de l’Academie de Droit International de La Hague
RIAA Reports of International Arbitral Awards
SOLAS International Convention for the Safety of life at Sea
TOPMEN Treaty on the Protection of the Marine Environment
UN United Nations
UNCLOS United Nations Convention on the Law of the Sea
UNEP United Nations Environmental Program
UNGA Res. United Nations General Assembly Resolution
UNTS United Nations Treaty Series
Va JIL Virginia Journal of International Law
Vol. Volume
LIST OF SOURCES
1969 Convention on the Law of Treaties, Vienna, 22 May 1969, 1155 UNTS 331.
1973 International Convention for the Prevention of Pollution from Ships, London, 2 November 1973, 12 ILM 1319 (1973).
1974 International Convention for the Safety of Life at Sea, London, 1 November 1974,14 ILM 959 (1975).
1982 United Nations Convention on the Law of the Sea, Montego Bay, 10 September 1982, 1833 UNTS 397.
The Stockholm Declaration of the United Nations Conference on the Human Environment, adopted on 16 June 1972, 11 ILM 1416 (1972).
Charter of Economic Rights and Duties, UNGA Res. 3281 (XXIX) of 12 December 1974.
World Charter of Nature, 28 October 1982, 22 ILM 455 (1983).
The Rio Declaration of the United Nations Conference on Environment and Development, adopted on 14 June 1992, 31 ILM 874 (1992).
UNEP Goals and Principles of Environmental Impact Assessment, 17 June 1987, in Birnie P.W. and Boyle A.E., Basic Documents on International Law and the Environment, Clarendon Press, Oxford, 1995.
Pellet A., Special Rapporteur of the ILC, 3rd Report on Reservations to Treaties, UN Doc. A/Cn 4/491/Add. 4.
Commentary on Article 25 of the Articles on State Responsibility, in Crawford J., The International Law Commission’s Articles on State Responsibility, Cambridge University Press, 2002.
Report of the Secretary General, Fifty-eight Session, Oceans and the Law of the Sea, 3 March 2003, UN Doc. A/58/65 www.un.org/Depts/los.
Société Commerciale de Belgique case, 1939 PCIJ Series A/B, No. 78, p. 160.
CASES
Corfu Channel case, (United Kingdom v. Albania), Merits, ICJ Reports 1949, p. 4.
Ambatielos case, (Greece v. United Kingdom), Merits, ICJ Reports 1953, p. 10.
Case of certain Norwegian Loans, (France v. Norway), Preliminary Objections, ICJ Reports 1957, p. 9.
Case concerning Right of Passage over Indian Territory, (Portugal v. India), Preliminary Objections, ICJ Reports 1957, p. 125.
Interhandel case, (Switzerland v. United States of America), Preliminary Objections, ICJ Reports 1959, p. 6.
Case concerning the Appeal relating to the Jurisdiction of the ICAO Council, (India v. Pakistan), Preliminary Objections, ICJ Reports 1972, p. 46.
Fisheries Jurisdiction case, (United Kingdom v. Iceland), Merits, ICJ Reports 1974, p. 3.
Request for an Examination of the situation in accordance with paragraph 63 of the Court’s Judgement of 20 December 1974 in the Nuclear Tests (New Zealand v. France) case, ICJ Reports 1995, p. 288.
Case concerning the Gabčíkovo - Nagymaros Project, (Hungary v. Slovakia), Merits, www.icj-cij.org/icjwww/idocket/ihs/ihsjudgement/ihs_ijudgement_970925_frame.htm.
ADVISORY OPINIONS
Advisory Opinion on Reservations to the Convention on Genocide, ICJ Reports 1951, p. 15.
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, p. 226.
Temeltasch v. Switzerland, Reservations & Interpretative Declarations, 5 EHRR 1983, p. 417.
Belilos case (1987), ECHR Pub. Series A vol. 132, p. 1.
Advisory Opinion with regard to Questions Relating to Interpretation of Provisions in the American Convention on Human Rights concerning the Death Penalty, 8 September 1983, 23 ILM 320 (1984).
Southern Bluefin Tuna cases, (New Zealand v. France), 38 ILM 1624 (1999).
Trail Smelter Arbitration, (Canada v. United States), 3 RIAA 1905 (1941).
Lac Lanoux Arbitration, (France v. Spain), 24 ILR 101 (1957).
Akehurst’s Modern Introduction to International Law, 7th ed., (by Malanczuk P.), Routledge, London, 1997.
Attard D.J., The Exclusive Economic Zone in International Law, Clarendon Press, Oxford, 1987.
Aust A., Modern Treaty law and Practice, Cambridge University Press, 2001.
Birnie P.W. and Boyle A.E., Basic Documents on International Law and The Environment, Clarendon Press, Oxford, 1995
Brownlie I., Principles of Public International Law, 6th ed., Oxford University Press, 2003.
Cassese A., International Law, Oxford University Press, 2001.
Christian C.C, Joyner C.C. (eds), The United Nations and International Law, ASIL and Cambridge University Press, Washington, 1997.
Churchill R.R and Lowe A.V, The Law of the Sea, 3rd ed., Manchester University Press, Manchester, 1999.
Crawford J., The International Law Commission’s Articles on State Responsibility, Cambridge University Press, 2002.
Evans M.D., International Law, Oxford University Press, 2003.
Fitzmaurice G., The Law and Procedure of the International Court of Justice, (Vol. II), Grotius Publications Limited, Cambridge, 1986.
Harris D.J., Cases and Materials on International Law, 5th ed., Sweet & Maxwell, London, 1998.
Kiss A. and Shelton D., International Environmental Law, Transnational Publishers, 1991.
McNair A., Law of Treaties, Clarendon Press, Oxford, 1961.
Oliver C.T., Firmage E.B., Blakesley C.L., Scott R.F., Williams S.A., Cases and Materials on the International Legal System, 4th ed., Foundation Press INC, Westbury, New York, 1995.
Oppenheim’s International Law, Vol. 1, 9th ed., (by Jennings R. and Watts A.), Longman, 1992.
Rosenne S., The Law and Practice of the International Court, 2nd ed., Martinus Nijhoff Publishers, Dordrecht, 1985.
Shaw M.N., International Law, 4th ed., Grotius Publication, Cambridge University Press, 1997.
Sinclair I.,The Vienna Convention on the Law of Treaties, 2nd ed., Manchester University Press, Manchester, 1984.
Anderson D.H., Legal Implications of the entry into force of the UN Convention on the Law of the Sea, 44 ICLQ 313 (1995).
Boyle A.E., Marine Pollution under the Law of the Sea Convention, 79 AJIL 347 (1985).
Dzidzornu D.M., Four Principles in Marine Environment Protection: A Comparative Analysis, 29 ODIL 91 (1998).
Fitzmaurice G., Reservations to Multilateral Treaties, 2 ICLQ 1 (1953).
Fitzmaurice M.A., International Protection of the Environment, 293 RCADI 21 (2001).
Franckx E., Coastal State Jurisdiction with respect to Marine Pollution - Some recent Developments and future Challenges, 10 IJMCL 253 (1995).
Gamble J.K., Reservations to Multilateral Treaties - A Macroscopic View of State Practice, 74 AJIL 372 (1980).
Koh T.T., Negotiating a New World Order for the Sea, 24 Va JIL 761 (1984).
McRae D.M., The Legal Effect of Interpretative Declarations, 49 BYIL 153 (1978).
Robertson H.B., Navigation in the Exclusive Economic Zone, 24 Va JIL 865 (1984).
Ruda J.M., Reservations to Treaties, 146 RCADI 95 (1975-III).
Sand P., The Precautionary Principle: Coping with risk, 40 Indian JIL 1 (2000).
Simon M., The Southern Bluefin Tuna Cases: The Precautionary Approach and Conservation and Management of Fish Resources, 11 EJIL 815 (2000).
Stevenson R.J. and Oxman B.H., The Preparations for the Law of the Sea Convention, 68 AJIL 1 (1974).
STATEMENT OF RELEVANT FACTS
Industria and Hedonista are neighbouring States with coastlines abutting onto the Sea of Tranquillity, a semi-enclosed sea, ecologically diverse and rich in marine living resources. The economy of Hedonista is largely based on tourism due to its extensive beaches rich in marine and coastal wildlife. Industria, on the other hand, is rich in mineral resources and hitherto, has been exporting oil and gas to its eastern neighbours, through overland pipelines.
Both Industria and Hedonista are members of the United Nations and parties of the statute of the International Court of Justice. They have also ratified the 1982 United Nations Convention on the Law of the Sea (UNCLOS) opting for any dispute relating to it to be referred to the International Court. Industria accompanied its instrument of ratification with a declaration on Articles 122-123, thus restricting its obligations under these articles to publishing in its Official Gazette details of any activities which may have an impact on the environment of the Sea of Tranquillity or of any legitimate use of that sea. Both Industria and Hedonista have declared an Exclusive Economic Zone (EEZ) of 200 nautical miles in breadth. They are also members of the International Maritime Organisation and parties to the International Convention on Prevention of Pollution from Ships 1973 (MARPOL) (as amended) and the Safety of Life at Sea Convention (SOLAS).
In 1990, Hedonista and Industria entered into the TOPMEN, a bilateral treaty concerning the protection of the marine environment of the Sea of Tranquillity. Under this treaty, all necessary measures shall be taken by the parties to prevent pollution from vessels and in pursuing their own environmental policies, the parties shall have due regard to the interests of the other party. Furthermore, any dispute arising under the TOPMEN not resolved by recourse to other peaceful means of the choice of the parties shall be referred to arbitration.
Over the last years, oil companies in Industria have been evaluating the market for exporting heavy fuels oils to trading partners to west. In 1999, an Industrian company, Coagulate Oil Corporation, proposed to ship the heavy fuels oils in tankers through the Sea of Tranquillity. An Environmental Impact Assessment was conducted for the constuction of an oil loading terminal at Blackwater Bay and no non-Industian persons participated.
In December 2001, the activity of oil-transportation started, giving rise to anxiety in Hedonista in view of the devastating effects of a major oil spill to the fragile ecosystem of the area and its touristic economy. In fact, an accident did happen in November 2002. This time no damage was done to the marine environment.
In 2003, Hedonista issued Presidential Decree Number 23 of 2003 banning all vessels carrying heavy fuels oils from its EEZ, as an attempt to prevent another accident. Several Industrial ships were intercepted and returned to Industrial ports. It was agreed that the Industrial vessels complied with the standards set out in MARPOL and SOLAS. Industria brought an application against Hedonista before the Court on the 29th of September 2003.
ISSUES
iii) Has Industia violated Art. 204-206?
SUMMARY OF ARGUMENTS
iii) Industria has violated Articles 204-206 by not conducting an EIA on the transport of oil.
JURISDICTION OF THE COURT
It is the submission of Hedonista that the Court has no jurisdiction to entertain the dispute pursuant to the Article 287(1b) of the United Nations on the Law of the Sea. In view of the fact that the 1990 Treaty imposes on the High Contracting Parties thereto a binding obligation to refer any dispute arising in relation to the marine environment in the Marine Area to a tribunal to be established under Article 23 of the Treaty and that, that jurisdiction is an exclusive one, the Court has no jurisdiction to address the dispute.
[1]. United Nations Convention on the Law of the Sea, Montego Bay, 10 September 1982, 1833 UNTS 397 (hereinafter referred to as the UNCLOS).
[2]. Convention on the Law of Treaties, Vienna, 22 May 1969, 1155 UNTS 331 (hereinafter referred to as the Vienna Convention).
[3]. Ambatielos case, (Greece v. United Kingdom), Merits, ICJ Reports 1953, p. 10 at pp. 15-16.
[4]. Koh T.T., Negotiating a New World Order for the Sea, 24 Va JIL 761 (1984), p.779.
[5]. Advisory Opinion with Regard to Questions relating to Interpretation of Provisions in the American Convention on Human Rights concerning the Death Penalty (Inter-American Court of Human Rights), 8 September 1983, 23 ILM 320 (1984), p. 341.
[6]. Belilos case (1987) ECHR Pub. Series A Vol. 132, p. 1 at p. 23; Temeltasch v. Switzerland Reservations & Interpretative Declarations, 5 EHRR 1983, p. 417 at p. 433, paras. 75-76.
[7]. Pellet A., Special Rapporteur of the ILC, 3rd Report on Reservations to Treaties, UN Doc. A/Cn 4/491/Add. 4, para 691; Aust A., Modern Treaty Law and Practice, Cambridge University Press, 2001, pp. 101-102.
[8]. Aust A., supra note 7, p. 54.
[9]. Sinclair I., The Vienna Convention on the Law of Treaties, 2nd ed., Manchester University Press, Manchester, 1984, p. 54; Ruda J.M., Reservations to Treaties, 146 RCADI 95 (1975-III), pp. 106-107.
[10]. McRae D.M., The Legal Effect of Interpretative Declarations, 49 BYIL 153 (1978), pp. 160-161.
[11]. Fitzmaurice G., The Law and Procedure of the International Court of Justice (Vol. II), Grotius Publications Limited, Cambridge, 1986, p. 831.
[12]. Separate Opinion of Judge Sir Hersch Lauterpacht in the case of certain Norwegian Loans (France v. Norway), Preliminary Objections, ICJ Reports 1957, p. 9 at pp. 43-44.
[13]. McNair A., Law of Treaties, Clarendon Press, Oxford, 1961, p. 129.
[14]. Aust A., supra note 7, p. 80.
[15]. Case of certain Norwegian Loans, supra note 12.
[16]. Interhandel case (Switzerland v. United States of America), Preliminary Objections, ICJ Reports 1959, p. 6.
[17]. Case concerning Right of Passage over Indian Territory (Portugal v. India), Preliminary Objections, ICJ Reports 1957, p. 125.
[18]. Advisory Opinion on Reservations to the Convention on Genocide, ICJ Reports 1951, p. 15.
[19]. Rosenne S., The Law and Practice of the International Court, 2nd ed., Martinus Nijhoff Publishers, Dordrecht, 1985, pp. 390-391.
[20]. Separate Opinion of Judge Sir Hersch Lauterpacht, supra note 12, pp. 55-58.
[21]. Harris D.J., Cases and Materials on International Law, 5th ed., Sweet & Maxwell, London, 1998, p. 797.
[22]. Ibid, pp. 1010-1011.
[23]. Gamble J.K., Reservations to Multilateral Treaties -A Macroscopic View of State Practice, 74 AJIL 372 (1980), p. 373.
[24]. Churchill R.R. and Lowe A.V., The Law of the Sea, 3rd ed., Manchester University Press, Manchester, 1999, p. 17.
[25]. Fitzmaurice G., supra note 11, p. 827.
[26]. Fitzmaurice M. A., The Practical Working of the Law of Treaties in Evans M. D. International Law, Oxford University Press, 2003, p. 194.
[27]. Aust A., supra note 7, pp. 115-117.
[28]. Harris D.J, supra note 21, p. 801, para. 17.
[29]. Fitzmaurice G., Reservations to Multilateral Treaties, 2 ICLQ 1 (1953), p. 18.
[30]. Case concerning the Appeal relating to the Jurisdiction of the ICAO Council (India v. Pakistan), Preliminary Objections, ICJ Reports 1972, p. 46 at p. 52.
[31]. Oliver C.T., Firmage E.B., Blakesley C.L., Scott R.F., Williams S.A., Cases and Materials on the International Legal System, 4th ed., Foundation Press INC, Westbury, New York, 1995, p. 417.
[32]. Trail Smelter Arbitration, (Canada v. United States), 3 RIAA 1905 (1941).
[33]. Lac Lanoux Arbitration, (France v. Spain), 24 ILR 101 (1957).
[34]. Corfu Channel case, (United Kingdom v. Albania), Merits, ICJ Reports 1949, p. 4.
[35]. The Stockholm Declaration of the United Nations Conference on the Human Environment, adopted on 16 June 1972, 11 ILM 1416 (1972) (hereinafter referred to as the Stockholm Declaration).
[36]. Cassese A., International Law, Oxford University Press, 2001, p. 375.
[37]. The Rio de Janeiro Declaration of the United Nations Conference on the Environment and Development, adopted on 16 June 1992, 31 ILM 874 (1992) (hereinafter referred to as the Rio Declaration); Akehurst’s Modern Introduction to International Law, 7th ed., (by Malanczuk P.), Routledge, London, 1997, p. 245.
[38]. Case concerning the Gabčíkovo - Nagymaros Project, (Hungary v. Slovakia), Merits, www. icj-cij.org/ icjwww/idocket/ihs/ihsjudgement/ihs_ijudgement_970925_frame.htm.
[39]. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, p. 226.
[40]. Franckx E., Coastal State Jurisdiction with respect to Marine Pollution - Some recent Developments and future Challenges, 10 IJMCL 253 (1995), p. 257.
[41]. Churchill R.R. and Lowe A.V., supra note 24, p. 333.
[42]. Report of the Secretary General, Fifty-eight Session, Oceans and the Law of the Sea, UN Doc. A/58/65, 3 March 2003,p. 54, para 172, www.un.org/Depts/los.
[43]. Art. 65 of the UNCLOS.
[44]. Report of the Secretary General, supra note 42, p. 42, para 56.
[45]. Robertson H.B., Navigation in the Exclusive Economic Zone, 24 Va JIL 865 (1984), p. 883; Shaw M.N., International Law, 4th ed., Grotius Publication, Cambridge University Press, 1997, p. 413.
[46]. Attard D. J., The Exclusive Economic Zone in International Law, Clarendon Press, Oxford, 1987, pp. 78-79.
[47]. Oppenheim’s International Law, Vol. 1, 9th ed., (by Jennings R. and Watts A.), Longman, 1992, pp. 820-821, 825.
[48]. Anderson D.H., Legal Implications of the entry into force of the UN Convention on the Law of the Sea, 44 ICLQ 313 (1995), p. 323; Robertson H.B., supra note 45, p. 898.
[49]. Boyle A.E., Marine Pollution under the Law of the Sea Convention, 79 AJIL 347 (1985), pp. 350, 357.
[50]. International Convention for the Prevention of Pollution from Ships, London, 2 November 1973, 12 ILM 1319 (1973), (hereinafter referred to as the MARPOL); International Convention for the Safety of Life at Sea, London, 1974, 14 ILM 959 (1974), (hereinafter referred to as the SOLAS).
[51]. Report of the Secretary General, supra note 42, p. 53, para 172 and p. 54, para 176.
[52]. Fitzmaurice M.A., International Protection of the Environment, 293 RCADI 21 (2001), p. 280.
[53]. World Charter of Nature, 28 October 1982, 22 ILM 455 (1983).
[54]. Principle 17 of the Rio Declaration, supra note 37, p. 879.
[55]. Dissenting Opinion of Judge Weeramantry in the Request for an Examination of the situation in accordance with paragraph 63 of the Court’s Judgement of 20 December 1974 in the Nuclear Tests (New Zealand v. France) case, ICJ Reports 1995, p. 288 at p. 344 (hereinafter referred to as Nuclear Tests II case); Separate Opinion of Vice-President Weeramantry in case concerning the Gabčíkovo - Nagymaros Project, supra note 38.
[56]. UNEP Goals and Principles of Environmental Impact Assessment, 17 June 1987, in Birnie P.W. and Boyle A.E., Basic Documents on International Law and the Environment, Clarendon Press, Oxford, 1995, pp. 27-31.
[57]. Fitzmaurice M.A., supra note 52, p. 284.
[58]. Kiss A. and Shelton D., International Environmental Law, Transnational Publishers, New York, 1991, p. 170.
[59]. Trail Smelter Arbitration, supra note 32, p. 1965; Lac Lanoux Arbitration, supra note 33, p. 124.
[60]. Corfu Channel case, supra note 34, p. 22.
[61]. Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, supra note 39, pp. 241-242, para 29.
[62]. Gabčíkovo-Nagymaros case, supra note 38, para 53.
[63]. Lac Lanoux Arbitration, supra note 33, p. 133.
[64]. Principle 24 of the Stockholm Declaration, supra note 35, p. 1420; Article 3 of the Charter of Economic Rights and Duties, UNGA Res. 3281 (XXIX) of 12 December 1974.
[65]. Boyle A.E., supra note 49, p. 367.
[66]. Cassese A., supra note 36, p. 382.
[67]. Lac Lanoux Arbritration, supra note 33, p. 140.
[68]. Fisheries Jurisdiction case, (United Kingdom v. Iceland), Merits, ICJ Reports 1974, p. 3 at p. 31, para 71.
[69]. Churchill R.R. and Lowe A.V, supra note 24, p. 336; Brownlie I., Principles of Public International Law, Oxford University Press, 2003, p. 276.
[70]. Fitzmaurice M.A., supra note 52, p. 269.
[71]. Simon M., The Southern Bluefin Tuna case: The Precautionary Approach and Conservation of Fish Resources, 11 EJIL 815 (2000), p. 820.
[72]. Dzidzornu D.M., Four Principles in Marine Environment Protection: A Comparative Analysis, 29 ODIL 91 (1998) p. 98.
[73]. Stocholm Declaration, supra note 35, Rio Declaration (Principle 15), supra note 37, p. 879, World Charter of Nature, supra note 53.
[74]. For an overall review of such treaties, see Sand P., The Precautionary Principle: Coping with risk, 40 Indian JIL 1 (2000), pp. 5-8.
[75]. Nuclear Tests II case, supra note 55.
[76]. Dissenting Opinion of Judge Weeramantry in the Nuclear Tests II case, supra note 55, p. 342.
[77]. Gabčíkovo - Nagymaros case, supra note 38, para 140.
[78]. Fitzmaurice M., supra note 52, p. 267.
[79]. Southern Bluefin Tuna cases, (New Zealand v. France), 38 ILM 1624 (1999), p. 1634, paras 77-80.
[80]. For an overall review of such treaties, see Churchill R.R. and Lowe A.V., supra note 24, p. 336.
[81]. Stevenson R.J. and Oxman B.H., The Preparations for the Law of the Sea Convention, 68 AJIL 1 (1974), p. 26; Attard D.J., supra note 46, p. 99.
[82]. Christian C., Joyner C.C. (eds), The United Nations and International Law, ASIL and Cambridge University Press, Washington, 1997, p. 326.
[83]. Akehurst M., supra note 37, p. 242.
[84] Kiss A. and Shelton D., supra note 58, p. 171; Oppenheim’s International Law, supra note 47, p. 803.
[85]. Churchill R.R. and Lowe A.V., supra note 24, p. 332.
[86]. Ibid., pp. 171-172, 351-352.
[87]. Franchx E., supra note 40, p. 257.
[88]. Société Commerciale de Belgique case, 1939 PCIJ Series A/B, No. 78, p. 160.
[89]. Gabčíkovo - Nagymaros case, supra note 38, paras 51-52.
[90]. Commentary on Article 25 of the Articles on State Responsibility in Crawford J., The International Law Commissions’ s Articles on State Responsibility, Cambridge University Press, 2002, p.183, para 15.
[91]. Gabčíkovo - Nagymaros case, supra note 38, para 38.