THE HAZARDOUS MATERIALS TRANSPORTATION BY SEA AND THE RIGHT OF INNOCENT PASSAGE: Deficiencies - Deadlocks of the Existing Framework In Ensuring Coastal States and Freedom of Navigation Ass. Professor Georgios Samiotis Mr. Dimitrios Grekos

5/31/ The Conflict between Coastal and Maritime States on Hazardous Materials Transportation by Sea Hazardous Materials (Hazmats) Regulatory Framework for Hazmats Transportation by Ships Maritime States and The Right of Innocent Passage Coastal States and the Right of Innocent Passage Coastal States and the Right of Prior Notification Marine Environment Protection Recommendations

 Coastal States argue: - Environmental Impact of Hazmats Transportation through their Territorial Sea in Case of Accident - Sovereignty within their Territorial Sea  Maritime States argue: - Uninterrupted Sea Transportation of Hazmats according to the Right of Innocent Passage - Freedom of Navigation  Differing Opinions lie in the Provisions of International Law concerning the Rights and Obligations of States but also the Protection of Marine Environment 5/31/2013 3

 A hazardous material (Hazmat) is “any item or agent (biological, chemical, physical) which has the potential to cause harm to humans, animals, or the environment, either by itself or through interaction with other factors” (Institute of Hazardous Materials Management, 2013)  In particular, hazmats transported by ships may become dangerous goods and are classified in the International Maritime Dangerous Goods (IMDG) Code or in any other IMO Regulation referred to “as dangerous for carriage by sea” 5/31/2013 4

5 UNCLOS 1982Art.21,22,23 SOLAS 1974Chapter VII Part A-D IMDG CodeClass 1-9 INF CodeClass INF1-2-3 MARPOL 73/78Annex III BASEL 1989Annexes I-IX HNS, 1996International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea 1996 Paris Convention, 1960Paris Convention on Third Party Liability in the Field of Nuclear Energy IAEACode of Practice Nuclear, 1971 Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material Vienna, 1963Vienna Convention on Civil Liability for Nuclear Damage Regional ConventionsBamako – Barcelona – Tehran – Kuwait

5/31/  The right of innocent passage, through the territorial sea of the coastal State, is in favour of freedom of navigation. Ships under foreign flag may pass through the territorial sea of the coastal State under the provisions of article 19 (Meaning of Innocent Passage) UNCLOS  The right of innocent passage is not limited by the flag, cargo or ship type. All ships indiscriminately are allowed to travel through the territorial sea of all states. The hazmats transportation by ships through the territorial sea of a coastal State is not shown in article 19. Therefore, this passage should be allowed.

5/31/  Coastal State has legislative and executive jurisdiction within its territorial sea and may adopt legislative framework in line with Article 21 (Laws and regulations of the coastal State relating to innocent passage) UNCLOS  Article 220 (2) (Enforcement by coastal States) UNCLOS 1982 is a special rule where coastal State may detain a ship responsible for pollution in its territorial sea. Under this article the coastal State may take measures in case ships carry hazmats even when the ships exercise the right of innocent passage.

5/31/ Source: (Hakapää and Molenaar, 1999)

5/31/  Coastal States indicate that ships carrying hazmats are a threat to the safety of the seas and the coastal environment because of the extremely dangerous nature of such loads, and therefore these ships should not deserve the right of innocent passage.  Coastal States have the obligation to protect the marine environment under Article 94 (Duties of the flag State) UNCLOS 1982 under which they should take all necessary measures to prevent, reduce and control pollution of the marine environment.

5/31/  Regional Agreements to set standards for the transport of hazmats by ships  Sea lanes determination could help to resolve the conflict between the States and the obligation to protect the marine environment  INF Code Amendments  Self – Regulation - The Pigovian Taxes - Coasian bargains

5/31/  Application of the appropriate economic, social and environmental policies based on shipping business practices and provisions of UNCLOS  To encourage sustainable development of coastal areas and ensure the environmental public goods.  Shipping Stakeholders opinion matters…  Communication between Coastal and Maritime States at international level out of UNCLOS forum can benefit the problem solving.

5/31/ Thank you for your Attention Thank You