Quote:
Originally Posted by Auspicious
Footnote please? Official sources only.
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Likely to be country specific legislation amending their rights under UNCLOS. I haven't discerned the Merchant
Shipping rules of the UK, but there are specific aspects as pollution. If you
Google search the subject you likely will be able to determine the specific laws for the waters that are of subject interest.
An interesting reference. Any Port in a Storm?
The Right of Entry for Reasons of Force Majeure or Distress in the Wake of the Erika and the Castor
CHRISTOPHER F. MURRAY*
https://kb.osu.edu/bitstream/handle/...V63N5_1465.pdf
A few snipets of the very lengthy document.
"the tale of two tanker ships, the Erika and the Castor. Both ships found themselves in distress on the high seas, with cracks in their decks and
oil in their holds. Both ships requested permission from coastal authorities to enter protected waters. European coastal states, naturally fearful of the environmental and political consequences that harboring a large disabled
vessel might raise, refused entry to both ships.
The Erika was ultimately destroyed, its
hull split open by the relentless
power of the North Atlantic. The
oil it was carrying spoiled the French coast. 1 Its crew was miraculously saved by a combined search-and-rescue force from the French Coastguard, the French
Navy, and the British Royal
Navy. The Castor was ultimately spared by the seas, but only after a hellish forty days at sea and a series of harrowing at-sea
rescue and cargo
removal operations performed by Spanish search-and-rescue forces and
commercial mariners. 2 Both incidents highlight difficult tensions and ambiguities in international law.
First, for centuries ships in distress on the high seas have enjoyed a right of
entry into the waters of coastal states. Such entry had to be necessary for the
safety of the vessel or its crew.3 The ship's predicament typically had to be caused by some condition of force majeure or distress.4
The right of entry is now codified under the United Nations Convention on
the Law of the Sea ("UNCLOS"), discussed below.5 It is an exception or defense to the coastal state's exercise of jurisdiction over the disabled ship. 6 This exception or defense to the coastal state's jurisdiction prohibits, inter alia, the coastal state from excluding the disabled ship from its territorial sea. Arguably,both Erika and Castor, as ships in distress, should have been entitled to this right of entry. 7
Second, and conversely, coastal states have an inherent right of self-defense. This right in some circumstances arguably gives states the right to keep dangerous ships away from their shores. Further, coastal states have sovereign duties to protect their populations and their environmentally sensitive coastal areas. These concerns make coastal states naturally wary of allowing disabled vessels carrying hazardous cargoes into their waters. Consequently, as illustrated by the Erika and Castor incidents, some coastal states are not allowing disabled vessels into their waters.
. . .
111
The
Draft Articles on Responsibility of States for Internationally
Wrongful Acts were promulgated by the International Law Commission, an arm of the United Nations, in 2001. While not adopted as a treaty in force, the
Draft Articles are generally understood to represent mandatory customary international law. The reason for this is
that they are generally understood to reflect state practice. See id The Draft Articles suggest that a state may breach international law to defend itself. This is logical because a state's inherent right of self-defense is paramount under international law. Self-defense naturally enjoys exalted status on the hierarchy of international rights and obligations. Thus, even if any
of the states involved in the Erika and Castor incidents did breach an international obligation.
under UNCLOS, inter alia, the Draft Articles suggest that such a breach may be permissible under international law if it is necessary for self-defense:
the Draft Articles on the Law of State Responsibility do not have
any specific limitations on the term self-defense. 119 Thus, it is plausible to read the term self-defense broadly. 120 In this light, self-defense could be read to include things such as keeping dangerous ships and cargoes away from coastal populations and environmentally sensitive areas.
The Draft Articles on Responsibility of States for Internationally
Wrongful Acts
Chapter V
Circumstances precluding wrongfulness
Article 21 Self-defence
The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the
Charter of the United Nations.
First, it would have to be established that one of the coastal states breached its international obligations. Although the law at issue here is a multilateral treaty, the alleged injury caused by denying refuge to a ship is bilateral, state to state. A ship's flag state would have to take up its ship's cause. To date, none of the flag states have made any efforts to allege that the coastal states involved violated their international obligations. Additionally, the
conditions that excuse state responsibility would arguably provide strong defenses to any state in such a situation
This broader reading of self-defense dovetails with a concurrent narrow
reading of force majeure and distress. If force majeure and distress are limited by notions of fault and assumed risk, it makes sense to say that a state has some claim to self-defense where a dangerous ship is seeking entry and that ship is at least partly responsible for the condition in which it finds itself.
five rationales suggest that the right of entry was not implicated in the
Erika and Castor incidents. First, perhaps modern search-and-rescue capabilities of coastal states obviate the need to allow entry to distressed ships. 128 Second, arguably states could prohibit entry to distressed ships as a proportional countermeasure to the unlawful acts of other states. 129 A third argument is that the need to protect the
marine environment gives states the
power to keep dangerous vessels out of their territorial sea.130 A fourth argument is that a coastal state's needs for border control and security' 3' heighten its interest and authority in keeping all ships, including endangered ships, out of its territorial sea132 Lastly, international
shipping has changed so dramatically over the last fifty years, both in terms of total tonnage and the actual size of the ships themselves, such that the right of entry for reasons of force majeure or distress is an antiquated notion.
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