On Marine Pollution Responsibility And Compensation

The ocean, accounting for 71%of the earth's surface, is the cradle of human kindand all kinds of lives. It contains infinite creatures and mineral resources. It is closelylinked with the subsistence and development of all the countries in the world, esp. theriparian states. Under the situation of increasing interdependence of economy among thecountries and regions in the world, cooperation and coordination among countries andinternational organizations is extremely important for effectively dealing with theproblems concerning ocean. However, in recent years, because of various pollutionsfrom human activities, the marine eco-environment is being increasingly deteriorated.The marine lives such as fish is increasingly decreasing. This situation has alreadyaroused great attention and concerns. In particular, at present, the scale and density ofthe transportation of offshore oil deriving from the dependence of the main powers inthe world of energy exportation is unprecedented. In addition, the enhancement of thecapacity to explore the ocean renders the further acceleration of threat to the marineenvironment by acts not prohibited by international law.In the 60th session of the UN General Assembly held at the end of 2005, ZhangYishan, ambassador of China emphasized in his speech entitled "Sea and the Law ofSea", at present international marine affairs are faced with three outstanding problems:first, strengthening the implementation of provisions concerning the protection andpreservation of marine environment, the study of oceanology, and the development andtransfer of marine technology;second, strengthening the construction of the capacity ofthe developing countries to enable them to utilize the sea more effectively and to makegreater contribution for the international marine affairs.;third, bringing the presentrelevant international organizations and mechanisms into full play, and furtherstrengthening their cooperation and coordination. Among these three problems, theprotection and preservation of the marine environment stands in the breach.Not only Chinese government and international law circle are paying attention tothe problem of marine pollution, the situation of the quality of marine environmentgoing from bad to worse renders the problem of protection of marine environment to bethe hotspot of wide concern of the international community. Since 1960s, manyWestern countries successively enacted various kinds of laws and regulationsconcerning protection of marine environment. In order to jointly protect humanenvironment, and to maintain the global ecological balance, a series of internationaltreaties including UN Convention on the Law of the Sea were also enacted among thecountries. It should be said that the international system on the law of sea concerningthe control of pollution of the marine environment has been under gradual perfectionand development. Among other things, how to clearly determine responsibility and toenable the injured party to be compensated according to law after the occurrence of theaccident of marine environment pollution is one of the important sectors. It is also oneimportant aspect that international marine legislation embarks to perfect in the course ofthe constant practice. At present, the provisions concerning this problem cannot befound here and there in various kinds of international treaties and other internationaldocuments concerning the protection of the marine environment.Therefore, this dissertation studies in details the legal system of determination ofresponsibility of marine pollution and compensation therefor from the point of view ofinternational law. It explores the tendency of development of the legal system in thisfield, and also advances the author's own thought and claims over some of theproblems.The foreword of the dissertation introduces the arising and course of developmentand background of the international legal system concerning the determination ofresponsibility of marine pollution and the compensation therefore. It also introduces theaim and significance of the selection of the thesis topic, the present situation of study ofthis topic and the basic train of thoughts of the dissertation.Chapter One is the outline of the dissertation. This chapter first sums up theconcept and classification of marine pollution in international law. The definition of"marine pollution" provided by Article 1 (1) (4) of the UN Convention on the Lawof the Sea is that: "pollution of the marine environment" means the introduction byman, directly or indirectly, of substances or energy into the marine environment,including estuaries, which results or is likely to result in such deleterious effects as harmto living resources and marine life, hazards to human health, hindrance to marineactivities, including fishing and other legitimate uses of the sea, impairment of qualityfor use of sea water and reduction of amenities.There are different ways of classifying marine environment pollution. Judgingfrom global, regional and each country's legislations on prevention of marine pollutionand works of international jurists, there are mainly three kinds of marine environmentpollution. First, according to categories of the polluting substance, marine environmentpollution can be divided into three kinds: oil pollution, pollution of chemical substanceaside from oil and radioactive pollution. Second, according to the source of pollutingsubstance, marine environment pollution can be divided into four kinds: Pollution fromland-based sources, pollution from ships, pollution resulting from accidents in the seaand pollution by dumping. Third, taking into account of the jurisdiction of pollution,Pollution from land-based sources is the activities that occur inside the jurisdiction ofthe country, and therefore it arouses no problem of conflict of jurisdiction;shippollution includes pollution resulting from accidents in the sea and pollution bydumping, and these tend to involve the problem of jurisdiction of the riparian state, theflag state and the port state.This chapter also specifically sums up the brief evolution and development ofinternational legislations on marine pollution. In the aspect of treaties, the first treaty onoil pollution was drafted in 1926. However, it was never open for signature. Therefore,it is generally believed that the first treaty on pollution is International Convention forthe Prevention of Pollution of the Sea by Oil passed in 1954. On the first conference oflaw of sea, Articles 24 and 25 of Convention of the High Sea generally provide thatevery state has the obligation to prevent oil pollution and pollution of radioactivematerials and other medicaments. Apart from that, there was no more attention beingpaid to the problem of prevention of marine pollution. This situation continued to 1967.In 1967, the Liberia oil tanker "TORREY CANYON" ran aground off the southwestcoast of England, which caused the oil pollution accident of spilling of 120,000 tons ofcrude oil into the sea. The injury to marine environment caused by this event arouseduniversal attention. Owing to this event, the International Maritime Organization set upMarine Environment Protection Commission (MEPC), and under the support andpromotion of the Commission, International Convention on Civil Liability of OilPollution Damage of 1969 and International Convention on the Establishment of anInternational Fund for Compensation for Oil Pollution Damage of 1971 were helped tobring about. The number of international treaties on marine pollution began to increaseand the treaties began to develop systematically ever since. The systems ofdetermination of responsibility and compensation closely related with marine pollutionalso gradually developed along with this process. The occurrence of the accident of oiltanker "TORREY CANYON" spilling of crude oil helped to bring about theestablishment of the mechanism of compensation of injuries caused by oil pollution.After that, following conventions were successively enacted: International Conventionon Civil Liability for Oil Pollution Damage of 1969, and its Protocol of 1976,International Convention Relating to Intervention on the High Sea in Case of OilPollution Casualties of 1969, International Convention on the Establishment of anInternational Fund for Compensation for Oil Pollution Damage of 1971 and UNConvention on the Law of the Sea of 1982.This chapter mainly reviews the problems of jurisdiction, implementation andsafeguards on marine pollution established by the UN Convention on the Law of the Seafrom the aspects of state jurisdiction over marine pollution and different jurisdictionsover marine pollution caused by different source of pollution. At the end of this chapter,the author explores several problems that deserve to be continuously concerned arousedin Part XII of the Convention on the Law of Sea. These problems include theresponsibility of the flag state to control marine pollution, the construction andequipment of the ship, the transportation of hazardous goods within the exclusiveeconomic zones, and the "generally accepted international rules and standards" in theConvention.Chapter Two is about the determination of the responsibility of marine pollution.This chapter reviews the problems from three aspects: state responsibility in marinepollution, civil responsibility in marine pollution as well as the obligation andresponsibility of international cooperation in the prevention of marine pollution. Amongthese three, determination of state responsibility in marine pollution is the focal point ofthis chapter. The concept of "state responsibility" in marine pollution in internationallaw theory is also standing in the trend of developing and changing. In aspect ofprevention of marine pollution and state responsibility for marine pollution caused byprivate individuals, one provision should be specially mentioned, that is, the provisionof "responsibility" of Article 235 of UN Convention on the Law of the Sea passed byUN Conference on the Law of the Sea in 1982. This provision applies to various kindsof marine pollutions and injuries, and it of course is also applied to the pollution andinjury concerning the offshore exploration and exploitation. This provision addressesthe problem of "responsibility" in three levels. (1) illuminating that state shouldassume responsibility for marine pollution;(2)requiring each state to pass law andestablish appropriate legal system of damages in order to guarantee the victims beingadequately compensated or redressed;(3) providing that each state further cooperatewith each other to develop international law on suitable compensation granted thevictims. However, it must be noticed that, although acts that are easy to bring abouttransboundary injury by ship oil pollution such as ocean transportation of oil tend tocause injurious consequences, they are not themselves been prohibited by internationallaw. Therefore, this kind of state responsibility can be called state responsibility causedby lawful acts, that is, Liability for Injurious Consequences of Acts not Prohibited byInternational Law. If there are no rules concerning state liability of compensation ruleto invoke, when there is no treaty to apply there may occur the situation of no law toapply and no adequate protection to be granted to the interests of the victims. Therefore,the author takes the view that the system of state compensation responsibility as asupplementation and development of the system of state responsibility should beestablished in international law. Moreover, this chapter also discusses such theoreticalproblems as the relationship between flag-of-convenience vessels, "principle of genuinelink" and state responsibility, and takes the view that the problem of state responsibilityof flag state will become the problem to which great importance will be attached byinternational law jurists and state practices. This chapter analyses the civil liabilitysystem established on the basis of International Convention on Civil Liability of OilPollution Damage of 1969 (short for CLC1969) and International Convention on theEstablishment of an International Fund for Compensation for Oil Pollution Damage(short for Fund,1971), and discusses the tendency of determination of responsibilityof marine pollution in international judicial practices taking two cases as example:Ireland v. MOX Nuclear Plant of UK and the accident of leaking of oil from thePrestige.Chapter Three is about the system of compensation for marine pollution. It studiesand discusses the existing international compensation mechanism in the aspects of claimsubject of marine pollution, compensation mechanism for injuries caused by oilpollution by ships and international compensation for oil pollution. In the presentinternational system of control of marine pollution, only the mechanism ofcompensation of injuries caused by vessel oil pollution exists as a integral legal systemand is relatively complete. Therefore, we carry out the analysis on this basis when wediscuss the compensation of marine pollution damage. Oil pollution damage from shipsadopts the principle of joint assumption by the ship owner and the oil owner.International Convention on Civil Liability of Oil Pollution Damage of 1969 andConvention Establishing Fund of International Oil Pollution Damage by InternationalMaritime Organization (IMO) form the integral compensation mechanism for oilpollution damage from the ships. The oil pollution damage from the ships occurred inthe member states to the Conventions can be compensated on the whole throughinternational compensation mechanism. On this basis, this chapter concerns threeapproaches being implemented now on compensation of international oil pollution. First,entry into these two conventions. Second, establishment of a mechanism throughdomestic legislation, and one typical example is the American compensation mechanismof oil pollution damage. Third, co-existence of entry of international conventions andestablishment of mechanism through domestic law, and one typical example is theCanadian compensation mechanism of oil pollution damage. This chapter specificallyreviews the compensation mechanisms of oil pollution damage of the U. S. and Canada,and at the same time the author pays attention to the development of civil compensationsystem on oil pollution damage from the ships embodies in the report of the SecretaryGeneral on the topic of "Sea and the Law of the Sea" in the 60th session of the GenerallyAssembly held at the end of 2005.Chapter Four is about the legal practice of compensation of marine pollutiondamage in China. This chapter discusses two characteristics of compensation system ofoil pollution damage in China: 1. co-existence of international conventions anddomestic systems;2. combination of advanced international experience and the actualsituation of China. China joined International Convention on Civil Liability of OilPollution Damage of 1969 in 1980, and in 1999 joined the Protocol of 1992 (CLC92)of this Convention, and became one party to the CLC92. At present, the internationalships that can carry more that 2,000 tons of bulk oil cargo haven already procuredcompulsory insurance in accordance with the requirement of the convention. AlthoughChina is the state party to the Fund Convention, which is the supplement to thecompulsory insurance for oil pollution from the ships, the Convention can only beapplied to Hong Kong Special Administrative Region. The Law of the People'sRepublic of China on Marine Environmental Protection has established the legal basisfor the establishment of compensation system of oil pollution damage from the ships.Therefore, the international conventions applied in China and the domestic legislativesystem jointly exist, and two sets of mechanism operate at the same time, and theysupplement each other. Ever since the beginning of the compensation mechanism of oilpollution from the ships in China, China continuously strengthens the communicationand cooperation with such international organizations as International MaritimeOrganization and International Organization for Oil Pollution Fund. Internationalcompensation mechanism of oil pollution compensation has played a positive role in theestablishment and implementation of the compensation system of oil pollution damagefrom the ships in China, and its experience has been used for reference. This chapteralso discusses the status quo of the legislation on sea in China as well as the problem ofconnection of China with international "compensation fund system of oil pollutiondamage from the ships". Along with the discussion of the trying of such cases asPollution of Bohai Sea by Oil Tanker, "the Tasman Sea", this chapter also discussessome of the developing trends in judicial practice about the compensation mechanism ofoil pollution damage in China. The author takes the view that the urgent matter oflegislation concerning the control of marine pollution in China is to use advancedinternational experience for reference to establish compensation fund system andinsurance system concerning domestic oil pollution, which are in keeping with theactual situation in China.The concluding part sums up the content of the whole thesis. The author advanceshis own opinion on paying main attention to the development of state responsibilitytheories concerning marine pollution, further perfection and consummation ofinternational legal system on protection of marine environment;moreover, the authoradvances necessary opinion on the problem of how to bring the operation of UnitedNations and other international organizations into full play, and how to strengthen thestatus of the "precautionary principle" and the "principle of substantial development" ininternational legislations. The author takes the view that in the process of consummatingthe civil compensation mechanism concerning marine pollution accidents, the problemof how to reflect the role of the "state" in assuming responsibility of marineenvironmental protection in international legislations deserves to be further studied. Asfar as China is concerned, the urgent affairs are further establishment and consummationof system of laws and regulations concerning marine environmental protection,strengthening of international cooperation in marine environmental protection, andpromotion of the construction of the compensation mechanism of marine environmentaldamage.