FACULTAD DE INGENIERIA CIVIL CAPITULO VI ANAL/SIS Y PRESENTACION DEL R.O

The exercise of high seas freedoms close to UK shores

One of Grotius' principal arguments in favour of relatively unfettered navigation was that it was not dangerous. Increasingly this assumption was demonstrated not to be invariably the case in UK waters. UK shores and waters suffered shipborne pollution, both accidental and deliberate; lives were wasted through the careless conduct of vessels, especially in the Channel, and dangerous cargoes found their way into British coastal waters. In addition vessels continued to dump unstable waste on the UK continental shelf. The thrust of these developments, coupled with an increasing public concern about safety and environmental pollution, was to raise the relative importance of coastal concerns in UK policy making. Although fish stocks have been shown to be adversely affected by water quality the complaints of fishermen about pollution were not specificially responsible for this change in governmental attitude, because of fishermen's relative lack of organization and political influence. Fisheries policy was affected because the government position on fisheries limits was largely a spinoff from its view on navigational issues. A change in the relative importance to the UK of coastal and maritime factors had considerable implications for UK policy on navigation, and thus incidentally on fisheries limits.

The paradox of the UK's situation was that as well as having a very large merchant fleet, she had off her shores one of the world's busiest straits - the Dover Strait. In addition to the hundreds of

vessels each week plying the Strait, there was a considerable traffic between the opposite shores, with a constant possibility of collision. With both the UK and France claiming only a three-mile territorial sea, the bulk of the strait lay within the High Seas. The vagueness of the extent and nature of the Contiguous Zone meant that it was difficult to institute any permanent traffic-separation schemes in the Dover Strait without giving other states spanning straits a precedent for expanding their own maritime jurisdiction.

Despite the success of IMCO in combating pollution, there remained a number of problems which had not been solved by 1967 and which argued either for tighter arrangements to enforce regulations or for limiting the freedom of navigation. One of these was the problem of mariners and states w h o flouted IMCO procedures. A small number of vessels continued to discharge oily water into the sea. Where this took place outside the territorial sea and contiguous zone, there was nothing which a state suffering pollution as a result of such discharge could do except notify the flag state of the offending vessel, and some states had very bad records in punishing their vessels for breaches of IMCO regulations .

Another problem lay in the sheer size of supertankers, and the increased pollution which a single collision or foundering could cause. From the mid-1960s onwards there was a very rapid increase in the size of new individual tankers as it became obvious that there were economies of scale in transporting oil in large vessels. It also became obvious that the foundering of a giant tanker could produce oil pollution on an immense scale and that if an accident should occur on the High Seas effective measures by the coastal state could be delayed. In March 1967 such fears became a reality when

the Liberian-registered supertanker Torrey Canyon was wrecked beyond the territorial sea off Cornwall, gradually releasing a cargo of crude oil which coated holiday beacnes as far East as the Channel Islands and killed over 50,000 seabirds.

The disaster presented three important challenges for policy. It showed that three miles was now inadequate to safeguard UK shores from the effects of activities on the High Seas. It also emphasised the limitations of the sectoral approach to marine issues, especially in relation to an emergency. Since oil leaked slowly from the damaged vessel, BP experts suggested that the government should bomb the wreck and destroy the oil remaining aboard. The extra-territorial location of the wreck and its Liberian registration meant that there was a reluctance to take such action- The duty officer in the Ministry of Defence was from the earliest stages of the disaster in regular receipt of Coastguard reports concerning the potential size of the pollution problem, but although he telephoned a succession of government departments he was unable to obtain a directive. This was partly because the wreck occurred late on a Friday, and only when he contacted the Cabinet Office on the Sunday morning was some relevant action initiated. Attempts to contain the oil were hampered by the fact that the necessary detergents and booms did not exist in sufficient quantities, and valuable time was lost in making new manufacturing arrangements. After a week in which tne oil continued to spread, the Cabinet reluctantly decided to bomb the vessel in order to destroy the small amount of oil remaining aboard.

The Torrey Canyon affair also highlighted another problem. A supertanker had foundered with disastrous consequences in the relatively-uncluttered Western approaches, it was perhaps quite

likely that a similar accident might occur in the crowded and shallow Dover Strait. Compulsory pilotage or traffic routeing would reduce the probability of such an accident, and yet the narrowness of the strip of coastal state jurisdiction prevented such schemes. The disaster provided a clear indication to public opinion and civil servants alike that the freedom of navigation cherished by UK shipowners for the Straits of Gibraltar, Malacca and Hormuz might contain disadvantages when exercised in the Channel. This sentiment was subsequently reinforced by a growing number of vessel casualties in the Dover Strait, as Figure 6.1 shows. Concern mounted not only about these accidents, but about the lack of an authoritative means of directing traffic in the aftermath of a shipwreck. For instance a period of several months in the Winter of 1970-1 saw a succession of four vessels collide with the wreckage of a single ship in the Strait, with the loss of sixty-four lives. The position of the wrecks was clearly marked with lights, but many captains apparently chose to ignore the voluntary routeing system around the area.

Figure 6.1: Collisions in the Straits of Dover, 1966-71 3 .

June-May 1966- 67 3 1967- 68 5 1968- 69 13 1969- 70 9 1970- 71 14

To the problems of oil pollution resulting from founderings beyond the territorial sea and of collisions due to the lack of authoritative traffic control schemes was added the problem of vessels carrying hazardous cargoes in transit close to UK shores. The Geneva Convention accorded the coastal state no control over, or even right to be notified about, the cargoes passing through its territorial sea. Two serious incidents occurred in December 1971:

the Somali motorship "Atlantic Ocean" lost drums of dimethylene from her deck and the "Germania" went down off Cornwall with a cargo of chemicals. MAFF had to warn fishermen to examine their hauls for drums before taking them aboard. The foreign registration of the ships, together with the use of trade names in the Germania's cargo manifest, meant that it was 14th January before the Department of the Environment was made aware that her cargo was dangerous Two years later thousands of rounds of ammunition were washed into the Western Channel from the decks of the Israeli ship "Galila" Such developments tended to develop within the Board of Trade support for greater coastal state control over routeing, and to clarify the legitimate concern of maritime states as being for swift and expeditious transit rather than unrestricted navigation.

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Another problem was the dumping of waste material at sea. Dumping fell largely into three categories: the discharge of routine (catering, sewage, etc.) waste from vessels in transit; the disposal of obsolete equipment by persons involved in the continental shelf oil industry; and the deliberate placing of toxic waste onto the sea floor. Jettisoning waste from passing ships, although unsightly, posed no serious threat either to marine life or to holiday beaches, while abandoned industrial equipment was a problem which inflicted itself almost solely on fishermen, who suffered snagged nets. It was the deliberate disposal of toxic waste at sea which presented the most complete threat to the ecosystem, and it was accordingly this type of dumping which created the most intense parliamentary and media pressure for reducing the freedom of waste disposal. There was no system of recording which pollutants had been dumped, or their location.

Graat public concern about dumping developed in the late 19ô0s, largely a spinoff from a wave of environmental concern in that period0 , together with the work of Agencies of the UK Government and of the House of Commons Sub-Committee on Science and Technology, wr.ich took up marine pollution following the wreck of the Torrey Canyon As the vast majority of dumped wastes resulted from the Second World War or later, there was as yet little evidence of leakage on a sufficient scale to alarm fishermen, who were in general far angrier about discarded oil-related equipment.

The government's solution to all these problems was to contain change within existing institutions. The fact that the marine environment was becoming a matter of concern to other states raised the possibility of new local and regional arrangements which did not accord with either the existing law of the sea or the UK's perceived marine interests. Even some of the UK's maritime IMCO partners were beginning to look for alternative arrangements to flag state controlsd . The FCO was anxious to prevent the emergence of a new and inexperienced international organisation to control marine pollution, or even worse to hand powers to coastal states in such a way as to provide for differential regimes off different coasts, and lobbied hard for the establishment of international rules on marine pollution to remain the preserve of IMCO

Thus the problem of vessel-source pollution was faced by tightening IMCO rules. Aware of the implications for increased coastal state discretion of its own bombing of a foreign-registered vessel beyond its territorial sea HMG moved swiftly to limit the circumstances in which a coastal state might take action against a foreign vessel on the High Seas- The result was the International Convention Relating

to Intervention on the High Seas in Cases of Oil Pollution Casualties, signed in 1969 With no limitations as to distance it provided for the right of a coastal state to take on the High Seas such measures as might be necessary to protect its coastline and related interests from pollution of the sea by oil, but only following upon a maritime casualty which might reasonably be expected to result in major harmful consequences to its coastal population. This Convention was designed to permit remedial but not preventative action by the coastal state. The Board of Trade also moved towards a position of IMCO-backed compulsory traffic separation schemes in narrow straits and sensitive areas. In March 1971 the UK proposed to IMCO's Maritime Safety Committee that flag states should agree to compel their vessels to obey a traffic separation scheme in the Dover Strait. This move was followed by a meeting on May 12th between Board of Trade representatives and their counterparts from Belgium, France and the Netherlands to formulate the details of the scheme. Aware of the possible precedent effects of the UK's involving itself in such a coastal state arrangement the government was anxious to make it clear that "none of the delegates was prepared to take action on a unilateral or even multilateral basis outside the framework of a properly ratified IMCO agreement" The following October the UK played a major part in drafting the International Regulations for Preventing Collisions at Sea, designed to speed up entry into force of IMCO regulations by requiring states to object within a specified time rather than positively to ratify. The Board's shift to favouring compulsory traffic separation schemes was not an immediate result of the Torrey Canyon affair, but occurred over the four years of mounting accidents between 1967 and 1971. It was not a radical change in policy. The UK policy was to favour the maximum freedom of navigation commensurate with safety, and there had been a change

in vhat policy appeared most appropriate to this end. Moreover flag state control remained firm UK policy, with IMCO to be strengthened as the forun in which states decided which particular international standards they would apply to their own vessels. The UK also relied on IMCO to deal with the problem of dangerous cargoes; in September 1971 the UK asked the Organisation's Maritime Safety Committee to empower its Dangerous Goods Sub-Committee to study the packaging, labelling and storage of hazardous cargoes with a view to minimising pollution risks.

Dumping was until 1970 a matter of little public concern, but in that

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year three things considerably raised its status in public opinion . The first was the Report, in August, of the Technical Committee on the Disposal of Solid Toxic Wastes, one of a range of specialist bodies on marine issues established by the House of Commons Select Committee on Science and Technology. The Report provided opponents of dunping with scientific information as to its incidence and on the technical limitations of packaging materials. Secondly, in

December, the Council, on Environmental Quality recommended the 1R

cessation of ocean dunping in British coastal waters . The third

cause was that over the winter of 1970-71 a large nunber of canisters containing ferric chloride were washed up on the Isle of Wight.

They were traced to a consignment dunped by the Royal Navy into one of six 'deeps’ , used for this purpose since the Second World War, and

thought to be safe, in that the waste was effectively contained by

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the rock structure .

The fact that much of the dunped waste was military in origin, together with the connection between dunping and other forms of land-source pollution, led FWG to seek a flag state solution outside

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the IMCO framework 1 . MAFF, whose Fisheries Division IC oversaw marine pollution, took a lead in relation to its counterparts in other North Sea littoral states. It convened two regional conferences; one in London in June 1971 was followed by another in Oslo in October, which resulted in the signing in February 1972 of the "Oslo Convention", the "Convention for the Prevention of Marine Pollution by Dumping from ships and aircraft" 16. States bound themselves to monitor and control, by the issuance of licences, dumping from vessels registered in their states. The disposal at sea of a substance could be prohibited provided all national authorities in the N.E. Atlantic area were to approve. The Convention also established a Commission to co-ordinate the work of signatory states in monitoring the marine environment. Having obtained a regional agreement, the FCO moved swiftly to safeguard the flag state control by globalising the agreement. In June 1972 the United Nations Conference on the Environment convened at Stockholm. The British delegation (consisting of representation from the FCO, the Department of the Environment and MAFF), fired both by a genuine concern about dumping and by the FCO's desire to seek globally-consistent legal regimes, urged that an international instrument be formulated, with provisions similar to those of the Oslo Convention. The Stockholm Conference duly requested HMG to convene a global Conference on dumping before November 1972. At this Conference, which took place in October at Lancaster House, one hundred states agreed upon the London Dumping Convention, a global version of the Oslo Convention 17.

HMG thus managed to deal with these issues in ways which presented no threat to flag state jurisdiction. That is not to say that the problems, particularly those of jettisoning of waste from passing

vessels, were solved. The principal effects of these developments, however, were the strengthening of coastal state factors in UK policy-making and some breaking down of the sectoral barriers dividing marine issue areas, which eased the path of policy change. The Torrey Canyon affair encouraged those sections of society concerned with tourism and amenities to take an interest in marine policy. Better co-ordination between sectors was also encouraged by a number of administrative reorganisations which took place during this period . The Ministries of Housing and Local Government, of Works and of Transport were amalgamated to form the Department of the Environment in 1970, and the number of Local Authorities was lessened by the Local Government Act 1972 1 9 . The Water Act 1973 20 created a small number of Water Authorities, which replaced a multiplicity of local authorities and "quangos" previously responsible for the treatment of sewage. The Department of Industry and the Board of Trade were amalgamated to form the Department of Trade and Industry in 1970.

The rise in the importance of North Sea oil and gas production

Another development raising the significance to the UK of coastal factors was a growth in the apparent economic potential of the continental shelf. The opposition to, and uncertainty about, natural gas, diminished as the Labour government concentrated public attention upon the balance of payments. The importance to the latter of reducing industrial costs, coupled with the low price of

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methane, totally undermined domestic opposition . The nationalised gas supply industry began a programme of conversion of gas-burning facilities to methane.

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