Refuge for Ships in Distress

Places of Refuge for Ships in Distress

1. Introduction

The right of ships in distress to seek refuge in ports has been long recognized in customary international law. This right has been explicitly recognized in respect of preservation of human life[1], but there has been no legal consensus as regards its conflict with the interests of the coastal State. The debate on the right of ships in distress to enter a port of refuge or the right of a coastal State to refuse entry is of great importance in both public and private maritime law. While this debate has been ongoing, it was the aftermath of maritime disasters such as the Erika[2] and Prestige[3] that brought it into limelight. This has given birth to certain developments, including the International Maritime Organization's Guidelines on Places of Refuge[4] and the EU legal regime contained in the Erika I package[5], in addition to the contribution from various other sources.[6] Notwithstanding these developments, the uncertainties in the legal regime governing this issue continue to prevail. The lack of clarity has lead to a ‘better-on-someone-else's-doorstep' attitude of coastal States. The essential question that this paper seeks to address is whether a ship in distress has the right to enter a place of refuge and if yes, is the right absolute or conditional. This is not a question with definitive answers but one which accommodates varied approaches. In this context, it is worth mentioning that this paper uses “places of refuge”, as used by the IMO in its Guidelines, to indicate a sufficiently sheltered area where a ship in need of assistance can stabilize its condition and reduce the hazards to navigation, and to protect human life and environment[7]. This shall not necessarily be a port, although it is the case in most instances. As a corollary, this paper will also address the need, if any, for a specific regime governing ships in distress and places of refuge. This paper will address the jurisdictional aspect of this debate alone and not the issue of liability and compensation[8].

2. Customary and Conventional International Law

International law, in general, does not grant a right of entry into ports for foreign ships unless there is a treaty conferring such right to the ships of the flag state concerned.[9] The customary right of ships in distress to enter any port or place of refuge is an exception to this general rule. This customary right has not been codified in any international convention but has been widely acknowledged and defended by maritime States[10] and jurists[11] alike. According to this exception, ships are entitled to certain “humanitarian considerations and jurisdictional exemptions when they are forced into a foreign jurisdiction as a result of force majeure.”[12] Although the substantive law on the right of refuge is to be found in customary law, it has to be treated from the conventional law perspective as well for both are intertwined.

While the origin of this customary right is not evident, its early appearance in treaty law can be traced to the Jay Treaty of 1794[13] and since then it has found a place in various maritime treaties[14]. This right is also implied in the LOSC provisions on the duty to render assistance to persons at sea[15], the privileges and immunities granted to foreign ships in case of force majeure[16]. This is further confirmed by the provisions which make the exercise of the authority by coastal or port States over foreign ships conditional upon the fact that the ships must have entered their waters voluntarily.[17] LOSC also provides that passage in the territorial sea includes stopping and anchoring when they are rendered necessary by force majeure or distress.[18] Thus, distress or force majeure continues to be an exception to the absence of a right of entry into ports. Therefore, the recognition of the right of a ship in distress to enter a place of refuge is not in question. What is in question, however, is the absolute or conditional nature of this right.

At the outset, there has been no formulation of the right of refuge for ships in distress which has gained universal recognition. The only situation where the right has been universally accepted is in respect of humanitarian conditions. Thus, supporters of the ‘conditional right of access' state that right of refuge is fundamentally based upon humanitarian concerns and even here, if the master/crew abandon the ship, the ship itself does not have a right of refuge.[19] On the other hand, supporters of the ‘absolute right of access' state that while the right of refuge does have humanitarian underpinnings, it cannot be said to apply to humanitarian considerations alone[20]. This argument is sought to be supported by the fact that assistance must also be given to the ships themselves[21], the jurisdiction and financial immunities which such ships enjoy.[22]

The theory of absolute right of access has not enjoyed much support, either in literature or in State practice. The suspension or annulment of the right of a ship in distress to seek a place of refuge has been provided for in the 1989 Salvage Convention[23], the International Statute of Maritime Ports[24] and by a logical extension of the 1969 Intervention Convention[25] (i.e., if a coastal State is permitted to intervene on the high seas to prevent environmental pollution, it can refuse entry into its ports for a ship which poses such a threat). Recent State practice, including domestic case law, indicates several cases where refuge was denied[26], especially on environmental grounds. A compilation of rejections alone does not indicate that the right of refuge is no longer existent, but merely indicates that it is not an absolute right.

It is surprising to note that the opposite of the theory of absolute access, has been limited to the theory of absolute right of refusal by the coastal State or the theory of balancing of interests. While the former is not very popular as most States acknowledge a right of refuge for ships in distress, the latter theory has been gaining global support. According to this theory, coastal States may decide whether to grant or refuse refuge, balancing all interests involved in every case. This view has been applied in state practice and is supported by legal writers such as Hyderman and Berman[27], McDougal and Burke[28]. This view is reflected in the Guidelines[29] and recent judicial decisions[30] appear to follow this approach. The High Court of Admiralty in MV Toledo held that the right of refuge continues to exist in international law, but in a more restricted sense and stated as follows:

“In summary, therefore, I am satisfied that the right of a foreign vessel in serious distress to the benefit of a safe haven in the waters of an adjacent state is primarily humanitarian rather than economic. It is not an absolute right. If safety of life is not a factor, then there is a widely recognized practice among maritime states to have proper regard to their own interests and those of their citizens in deciding whether or not to accede to any such request.”[31]

Eric van Hooydonk writes that the legal basis of this theory is sought, “in an obligation of the vessel to protect the interests of that state to the extent feasible, which would balance with the state's obligation to assist in the protection of persons and property aboard a vessel.”[32] However, it appears to be the case that the legal basis of this theory is found on the right of self-protection of the coastal state. Coastal states have the right to protect their marine environment and other related interests from ships posing a serious threat to such interests[33].

The balancing of interests theory is the most preferred of all the above mentioned approaches, as it recognizes the right of access and takes into account environmental and other relevant interests. It must, however, be noted that this theory is easily susceptible to abuse and too broad interpretations in favour of either the coastal state or the ship, neither of which may yield the desired result. The problem lies in the fact that the act of balancing of interests is done by the coastal state in question, not an independent authority or not even subject to any consultation with such an authority, and without any parameters for an objective technical evaluation of the situation. In essence, it does not provide for a concrete solution, not even on a case-by-case basis[34].

As an alternative approach, the author suggests the theory of conditional refusal[35], as opposed to conditional access. While this theory is similar to the balancing of interests theory in approach, in principle it assumes the existence of a right of access. This theory presumes the existence of a right of access and provides that the right can be refused only when certain conditions exists. According to this theory, right of refuge for ships in distress is the norm and refusal the exception[36]. This is in accordance with the general agreement that granting a place of refuge to a ship in distress in an early stage may help in preventing or minimizing environmental pollution[37]. At the same time, it accommodates the arguments of the coastal states that providing a place of refuge to ships which pose a grave and imminent danger to their coasts would result in “infinitely worse” environmental consequences[38]. This theory accommodates the right of a coastal state to self-protection and its duties under customary or conventional international law. Coastal states have a duty to protect and preserve the marine environment[39], to ensure that pollution arising from incidents or activities under their jurisdiction does not spread beyond areas under their jurisdiction[40] and not to transfer, directly or indirectly, pollution from one part of the environment to another[41]. That access is the norm and refusal the exception is in line with the existing international obligations of port and coastal states to organize contingency plans and be equipped to respond to maritime casualties.[42]

The success of this theory would lie in two aspects - the preparedness of coastal and port states to accommodate ships in distress so as to give effect to the right of refuge and the articulation of the exception to this right. As for the former, there is sufficient international conventional and customary law dealing with the obligations of states to be prepared and equipped to offer a place of refuge to ships in distress[43]. As regards the latter, the refusal of a request to access shall be allowed only in exceptional circumstances and be based on objective criteria, as opposed to vague assertions of threat to the coastal state's environmental or other interests. It is desirable that the determination of the existence of these criteria, so as to refuse a place of refuge, be carried out by a neutral person or organization. This is a highly idealistic approach, in the current circumstances at least. Nonetheless the European Traffic Monitoring Directive[44] takes this approach and the Guidelines[45] do so too, albeit to a much lesser extent, both of which will be examined in the following section. The author is of the view that theory of conditional refusal would be a preferable approach with respect to offering places of refuge to ships in distress. However its acceptance, especially amongst coastal states, is a question which involves political and economic repercussions.

3. Recent developments in the International Framework to Accommodate Ships in Distress

The right of a foreign ship in distress to seek a place of refuge is not explicitly governed by any international regime, including the LOSC. As discussed in the previous section, foreign ships do not have a right of access to ports and the customary right of access in distress situations is an exception to this general rule. The LOSC does not explicitly deal with this but merely provides for a duty of the coastal states to render assistance to persons at sea[46], that port state jurisdiction can be exercised only when foreign ships enter a port or internal water of the coastal state voluntarily and grants certain privileges and immunities to foreign ships entering a coastal state's waters owing to distress or force majeure[47]. Much of LOSC's provisions concern with what happens after a ship in distress enters port but not directly on the question of whether there is a right of such ships to seek a place of refuge and if yes, on what criteria or conditions. The absence of a clear legal framework governing this issue has triggered various interpretations leading to rejections of requests to safe haven. This in turn may amount to a violation of the coastal state's duty to protect and preserve the marine environment[48], especially when such a rejection leads to the spread of pollution over a much wider area.[49]

3.1 EU legal regime

In response to the Prestige disaster and in light of the absence of any global legal regime governing the issue of places of refuge for ships in distress, the EU legal regime on “places of refuge” was detailed in Directive 2002/59 on Community Vessel Traffic Monitoring and Information System[50], as amended by Directive 2009/17. The Erika I package was a small step wherein Article 20 of the Directive required Member States to draw up and implement plans and arrangements, taking into account environmental and operational constraints, to accommodate ships in distress in a place of refuge under their authority. These plans and procedures were to be established taking into account the relevant IMO Guidelines. The Directive, however, did not create a legal duty or obligation for coastal/port states to accept a ship in distress into a place of refuge, which remains under the authority of the competent port state authority. Nor did the Directive lay down the criteria or contents of the plans for the accommodation of ships in distress. While the former position still persists even after the amendment Directive 2009/17, the latter position has been set right.

The strength of the amendment directive lies in three major points- one, it provides that all plans in respect of accommodation of ships in need of assistance[51] (hereinafter the “plan”) shall be drawn up by the competent authority on the basis of IMO Resolutions A.949(23) and A.950(23). The plan shall contain, in the minimum, the details listed in the amended Article 20. This includes the identity of the authority responsible for assessing the situation and taking a decision on acceptance or refusal of a ship in need of assistance, which has to be published. Secondly, it provides that a decision on the accommodation of ships shall be based on a prior assessment of the situation carried out in accordance with the Member State's plan. While the Article does not per se provide for the criteria for such assessment, it directs Member States to lay down such criteria in their plan in accordance with IMO Resolutions A.949(23) and A.950(23). These resolutions contain a non-exhaustive list of relevant factors and criteria for the evaluation of risks in providing a place of refuge.[52] Therefore, it is now imperative for Member States to perform an initial assessment on the basis of certain parameters prior to a decision on accommodating a ship in distress and outright refusal is not permissible. Thirdly, it provides that the absence of an insurance certificate shall not exonerate a Member State from the preliminary assessment and decision, and shall not in itself be considered sufficient reason for a Member State to refuse to accommodate a ship in a place of refuge[53].

Member States have been required to inform the Commission about the measures taken to implement Article 20 by 30 November 2010. The Directive has two pitfalls - one, it does not create a legal duty for coastal states to provide a place of refuge for ships in distress. Two, it does not specify whether the pre-designated places of refuge should be publicized. A majority of Member States are against disclosing the places of refuge in the fear that this would encourage sub-standard ships close to their shores, in addition to attracting opposition from the local authorities[54]. It also remains to be seen as to how certain Member States like Spain are going to adapt their policies with respect to their demand of an insurance certificate as a prerequisite for access to a place of refuge. In essence, the EU Directive adopts the balance of interests theory and not the theory of conditional refusal. Nevertheless, consistent application of this directive by EU Member States may contribute to the evolution of a customary rule of international law where access is the norm and refusal the exception. For now, however, the ‘not-in-my-doorsteps' syndrome continues to persist even after the Prestige disaster.

3.2 International legal regime

The IMO has been considering places of refuge for ships since 2000, triggered by the incidents of the ‘Erika' and ‘Castor'. The Prestige disaster brought this issue to the top of IMO's agenda and the Guidelines on Places of Refuge for Ships in Need of Assistance were adopted in December 2003[55]. The document does not address rights and obligations, but merely ‘the need to balance both the prerogative of a ship in need of assistance to seek a place of refuge and the prerogative of a coastal state to protect is coastline.'[56] The Guidelines are applicable where the ship is in need of assistance but safety of life is not involved[57] and provide that the best way of preventing/minimizing damage or pollution would be to lighten its cargo and repair the damage in a place or refuge[58]. However, to bring such a ship into a place of refuge may endanger the coastal State's environmental, economic and security interests[59]. The Guidelines do not, therefore, create a legal duty for coastal States to provide a place of refuge for ships in need of assistance[60]. The coastal states have to decide whether to grant or refuse access and the guidelines provide a framework for assessing the situation of ships in need of assistance to arrive at this decision.[61]

The Guidelines start with a preventive note where States are required to “endeavour to establish procedures” for receiving and acting on requests for assistance “with a view to authorizing, where appropriate, the use of a suitable place of refuge.”[62] The maritime authorities are required to make an objective analysis of the advantages and disadvantages of allowing a ship in need of assistance to proceed to such a place, on the basis of the criteria mentioned in Appendix 2.[63] The guidelines list the factors to be considered in arriving at a decision to grant or refuse access, including the possible effects on neighbouring states.[64] The Guidelines also provide for an expert analysis of the situation, which includes an inspection of the ship, when appropriate and if time allows, by an expert team.[65] An important improvement brought about by the Guidelines is that it makes special reference to the saving of property, which was not an explicit part of the traditional right that focused on saving human lives alone. The Guidelines provide that “due regard should be given, when drawing the analysis, to the preservation of the hull, machinery and cargo of the ship in need of assistance'.[66]

At the end of this decision making process, the IMO Guidelines provide that: “When a request for an access to a place of refuge is made, there is no obligation for the coastal State to grant it, but the coastal State should weight all the factors and risks in a balanced manner and give shelter whenever reasonably possible.”[67] While this appears to be a compromise, in effect it subjects the traditional right of ships in distress to seek refuge to the protection of coastal states interests. A footnote in the appendix of legal instruments to the Guidelines states that “at present there is no international requirement for a state to provide a place of refuge”.[68] As Aldo Chircop writes[69] this is a questionable statement given that the customary right of refuge is well established and what is precise is perhaps that there is no international conventional law requiring the provision of a place of refuge. The combined effect of these statements is that the customary right of refuge is treated more as a privilege subject to the rights and interests of coastal states. This is further augment by the Guidelines which provide that “as a general rule, if the place of refuge is a port, a security in favour of the port will be required to guarantee payment o fall expenses which may be incurred in connection with its operations”.[70]

The IMO Guidelines follow the balancing of interests approach and in the process tip the balance in favour of coastal states, which retain the ultimate discretion to allow or refuse refuge. However, where they do score is in the provision of objective criteria which States are expected to assess in exercising such discretion, which is very crucial in respect to States who have hitherto refused refuge to ships with little or no reason. Notwithstanding the fact that this is not a legally binding instrument, the general positive response that it has received from States, if translated into consistent state practice, might result in strengthening the customary right of ships in distress to a place of refuge.

4. Future framework

Although the EU and IMO actions mark a step forward, they do not contain the final solution to the problem. Both instruments leave the decision to grant or refuse refuge to coastal states and have not brought any change to the fundamental framework. They do not establish mechanisms to ensure that the decision-making process remains technical and not political. It has been suggested by some flag States and several writers that the best alternative would be a Convention on the issue[71],. This idea has been strongly opposed by States in general and coastal States in particular. Certain States which face a high number of distress situations owing to their location are not ready to bind themselves, unless there are financial securities and risk-sharing mechanisms[72]. Above all, it may not be possible to lay down a mandatory rule, regarding such a highly political and practical issue, which is acceptable to coastal States. However, the CMI's Draft Instrument[73] offers a fresh look on the issue and may be worth being pursued. It lays down the right of refuge as the general norm, which can be refused for reasonable reasons, the reasonableness of which shall be determined on the basis of objective criteria[74]. It balances the interests of coastal States by calling for sufficient financial security upto a certain limit for the provision of refuge[75].

The possibility of an international instrument on places of refuge looking remote[76], what is essential now is the need for States to uphold their duties and responsibilities under existing customary and conventional international law. It is essential for States to understand that offering a place of refuge to ships in distress may serve their interests better than pushing them away into the open ocean. Coastal States have to realize that in doing so they will be violating their duty to protect the marine environment and may incur responsibility[77]. The real solution to this problem does not lie in legal niceties alone but in the implementation of the existing law relating to contingency planning, infrastructure development, informed decision making structures and integrated coastal management consisting of pre-designated places of refuge[78]. An international regime on places of refuge would no doubt be helpful but not necessarily workable. What is needed is not more law but better implementation of the existing ones. Coastal States not only have rights, but also duties to protect the marine environment, in their maritime zones and this requires affirmative action as opposed to the ‘better-in-someone-else's-doorstep' attitude[79].

SELECT BIBLIOGRAPHY

BOOKS

- P. Birnie, A. Boyle and C. Redwell, International Law and the Environment, (Oxford, 2009).

- A. Chirop and O. Linden, Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom, (Martinus Nijhoff - Leiden, 2006)

- R.R. Churchill and A.V. Lowe, The Law of the Sea, (Manchester, 1999)

- R.B. Clarke, The Waters Around the British Isles: Their Conflicting Uses, (Clarendon: Oxford, 1987)

- L.M. Hydeman and W.H. Berman, International Control of Nuclear Maritime Activities, (Michigan, 1960)

- M. McDougal and W.T. Burke, The Public Order of the Oceans, (New Haven and London: Yale University Press, 1962)

JOURNAL ARTICLES

- A. Chircop, ‘Ships in Distress, Environmental Threats to Coastal States, a Place of Refuge: New Directions for an Ancien Regime?', 33 Ocean Development and International Law 207 (2002)

- V. Frank, ‘Consequences of the Prestige Sinking for European and International Law', 20 International Journal of Maritime and Coastal Law 1 (2005)

- E. van Hooydonk, ‘The Obligation to Offer a Place of Refuge to a Ship in Distress', CMI Yearbook 2003

- A.V. Lowe, ‘The Right of Entry into Maritime Ports in International Law', 14 San Diego Law Review 597 (1977)

- R. Shaw, ‘Places of Refuge- International Law in the Making?', 9 Journal of International Maritime Law 159 (2003)

IMO DOCUMENTS

- IMO Guidelines on Places of Refuge, Resolution A.949(23), 5.12.2003, reproduced in IMO Doc A 23/Res.949 5.03.2004

- Information Resources on Places of Refuge, IMO Maritime Knowledge Centre available at http://www.imo.org/includes/blastDataOnly.asp/data_id%3D27597/PlacesofRefuge_12February2010_.pdf

- IMO Doc. LEG 84/7

- IMO Doc. MSC 77/8/10

- IUMI in IMO Doc. MSC 77/82

TREATIES AND INSTRUMENTS (In Chronological Order)

- Treaty of Amity, Commerce and Navigation between His Britannick Majesty and the United States of America, London, 19 November 1794

- Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels, Brussels, 23 September 1910

- Convention and Statute on the International Regime of Maritime Ports, Geneva, 26 July 1926, (1923) PITSE 2

- Convention Concerning Fishing in the Black Sea, Varna, 7 July 1959, 377 UNTS 220-228 (1960)

- Convention on Facilitation of International Maritime Traffic, London, 9 April 1965, 4 ILM 501-511 (1965)

- International Convnetion Relating to Intervention on the High Seas in the Cases of Oil Pollution Casualties, Brussels, 29 November 1969, 9 ILM 25-44 (1970)

- International Convention for Safety of Life at Sea, 1 November 1974

- International Convention on Maritime Search and Rescue, 27 April 1979

- United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, UN/Doc. A/CONF.62/122, 7 October 1982

- International Convention on Salvage, 1989, London, 28 April 1989, U.K.T.S. 1996, No. 93

JURISPRUDENCE

- United States v. Mexico (Rebecca case), (1929) 33 AJIL 860

- Poulsen ECJ Case C-286/90, (1992) ECR I-6019

- Long Lin (Raad van State (The Netherlands), 10 April 1995, m/v Long Lin, Schip en schade, 1995, 391, no. 95

- MV Toledo (ACT Shipping (OTE) Ltd. V. Minister for the Marine, Ireland and the Attorney-General), [1995] 2 ILRM 30.

MISCELLANEOUS

- Bahamas Maritime Authority, Report of the Investigation into the Loss of the Bahamian Registered Tanker “Prestige” off the Northwest Coast of Spain on 19 November 2002 (London, Bahamas Maritime Authority, 2002)

- CMI Yearbook 2002 available at http://www.comitemaritime.org/worip/place.html

- CMI Draft Instrument on Places of Refuge, CMI Yearbook 2007-2008, p. 128

- Conclusions of the International Association of Ports and Harbours on Places of Refuge, in G 84/7/1

- European Union Directive 2002/59 on Community Vessel Traffic Monitoring and Information System, 27.06.2002 (OJ No. L208) amended by EU Directive 2009/17/EC, 23.04.2009 (OJ No. L131)

- Fifteenth Meeting of the Contracting Parties of the Bonn Agreement for cooperation in dealing with pollution of the North Sea by oil and other harmful substances (Summary record, Items 2.18-2.20)

[1] United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, UN/Doc. A/CONF.62/122, 7 October 1982 (hereinafter referred to as “LOSC”), Articles 18(2), 39(1)(c) and 98. For a discussion, see A. Chircop, O. Linden and D. Nielsen, ‘Characterising the Problem of Places of Refuge for Ships', in: A. Chirop and O. Linden, Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom, (Martinus Nijhoff - Leiden, 2006) pp 9-11.

[2] In 1999, the ‘Erika', a Malta-flagged ship caught in bad weather, was refused refuge by France. It broke up and sank, resulting in a disastrous pollution in the Bay of Biscay.

[3] In 2002, the ‘Prestige', a Bahamas-flagged single-hulled tanker was refused refuge by Spain, ordered out into the rough seas and sank off the Atlantic coast of Spain causing unprecedented amount of pollution. For an account of the Prestige disaster and a detailed analysis of the legal implications thereof, see Veronica Frank, ‘Consequences of the Prestige Sinking for European and International Law', 20 Int'l J. Maritime and Coastal L. 1 (2005).

[4] IMO Guidelines on Places of Refuge (hereinafter referred to as the “Guidelines”), Resolution A.949(23), 5.12.2003, reproduced in IMO Doc A 23/Res.949 5.03.2004; For all IMO documents on this topic, see IMO Maritime Knowledge Centre, Information Resources on Places of Refuge http://www.imo.org/includes/blastDataOnly.asp/data_id%3D27597/PlacesofRefuge_12February2010_.pdf (Last Update 12 February 2010).

[5] European Union Directive 2002/59 on Community Vessel Traffic Monitoring and Information System, 27.06.2002 (OJ No. L208), (hereinafter referred to as the “EU Directive”) last amended by EU Directive 2009/17(hereinafter referred to as the “EU amendment Directive”).

[6] Such as the CMI, see CMI Yearbook 2002 at pp. 117-146, available at http://www.comitemaritime.org/worip/place.html (last consulted on 2 March 2010); The Fifteenth Meeting of the Contracting Parties of the Bonn Agreement for cooperation in dealing with pollution of the North Sea by oil and other harmful substances (Summary record, Items 2.18-2.20).

[7] Guidelines, see Supra note 4, Para 1.19

[8] For the latest deliberation of the IMO-LEG on the issues of liability and compensation see supra note 4, IMO Information Resources on Places of Refuge; Also see Richard Shaw, ‘Places of Refuge: International Law in the Making?', CMI Working Paper available at http://www.comitemaritimie.org/year/2003/2003_part02_c.htm

[9] A.V. Lowe, ‘The Right of Entry into Maritime Ports in International Law', 14 San Diego Law Review 597 (1977).

[10] Inter alia, IMO Doc. LEG 84/7; Conclusions of the International Association of Ports and Harbours on Places of Refuge, in G 84/7/1, para. 3. National and Regional Courts have acknowledged this right inter alia, in United States v. Mexico (Rebecca case), (1929) 33 AJIL 860, ECJ Case C-286/90, Poulsen (1992) ECR I-6019, para. 35.

[11] For a list of non-exhaustive sources, see Erik Van Hooydonk, “The Obligation to Offer a Place of Refuge to a Ship in Distress”, CMI Yearbook 2003 at p.403 in notes 10 and 11.

[12] A. Chircop, ‘Ships in Distress, Environmental Threats to Coastal States, a Place of Refuge: New Directions for an Ancien Regime?', 33 ODIL 207, 212 (2002).

[13] Treaty of Amity, Commerce and Navigation between His Britannick Majesty and the United States of America, London, 19 November 1794.

[14] For instance, in Article 2, Convention Concerning Fishing in the Black Sea, Varna, 7 July 1959, 377 UNTS 220-228 (1960); Article 2, Convention on Facilitation of International Maritime Traffic, London, 9 April 1965, 4 ILM 501-511 (1965).

[15] Article 98 of LOSC

[16] Article 39(1)(c) and Article 54 of LOSC

[17] Article 218(1), (3) and Article 220(1) of LOSC; See Erik Van Hooydonk, supra note 11 at page 408.

[18] Article 18 of LOSC

[19] See A. Chircop, ‘The Customary Law of Refuge for Ships in Distress', in: A. Chircop et al., supra note 12 at p. 216.

[20] For a detailed discussion on the absolute right of access, see Erick Van Hooydonk, supra note 11 at p. 426.

[21] Article 98(1) (c) of LOSC; Article 8 of the Convention for the Unification of Certain Rules of Law with respect to Collisions between Vessels, Brussels, 23 September 1910; Article 11 of the International Convention on Salvage, 1989, London, 28 April 1989, U.K.T.S. 1996, No. 9 (“1989 Salvage Convention”).

[22] See supra note 16.

[23] Articles 9 and 11 of the 1989 Salvage Convention, see supra note 21.

[24] Article 16 of Convention and Statute on the International Regime of Maritime Ports, Geneva, 26 July 1926, (1923) PITSE 2.

[25] International Convnetion Relating to Intervention on the High Seas in the Cases of Oil Pollution Casualties, Brussels, 29 November 1969, 9 ILM 25-44 (1970)

[26] See A. Chircop, supra note 12 at p. 215; See also R.B. Clarke, The Waters Around the British Isles: Their Conflicting Uses, (Clarendon: Oxford, 1987) 186-189.

[27] Hydeman, L.M. and Berman, W.H., International Control of Nuclear Maritime Activities, (Michigan, University of Michigan/Ann Arbor 1960), 157.

[28] McDougal, M. and Burke, W.T., The Public Order of the Oceans, (New Haven and London: Yale University Press, 1962), 110.

[29] Supra note 4

[30] Long Lin (Raad van State (The Netherlands), 10 April 1995, m/v Long Lin, Schip en schade, 1995, 391, no. 95; MV Toledo (ACT Shipping (OTE) Ltd. V. Minister for the Marine, Ireland and the Attorney-General), [1995] 2 ILRM 30.

[31] MV Toledo [1995] 2 ILRM 30

[32] See Eric van Hooydon, supra note 11 at p. 429.

[33] E.g. MV Toledo supra note 31; see also A. Chircop , supra note 12, pp. 216-217, V. Frank, supra note 3, pp. 56-57.

[34] This is a paraphrasing of the argument found in Eric van Hooydon, supra note 11, pp. 428-432 and V. Frank, supra note 3, pp. 56-57.

[35] Drawn from the theory of “Good management on the basis of the right of access “ found in Eric van Hooydon, supra note 11, p. 432.

[36] Ibid., pp. 432-435. See also CMI LEG 89/7; V. Frank, supra note 3 at p. 57.

[37] Guidelines, supra note 4, para 1.3; The casualty investigation report in the Prestige case stated: “The provision of a place of refuge could well have resulted in a much more favourable outcome and prevented the subsequent large scale pollution of a long stretch of coastline'. Bahamas Maritime Authority, Report of the Investigation into the Loss of the Bahamian Registered Tanker “Prestige” off the Northwest Coast of Spain on 19 November 2002 (London, Bahamas Maritime Authority, 2002), 81.

[38] See V. Frank, supra note 3, p. 53 note 324.

[39] Article 192 of LOSC

[40] Article 194(2) of LOSC

[41] Article 195 of LOSC

[42] International Convention on Maritime Search and Rescue, 27 April 1979; Article 98(2) of LOSC, Regulation 15 in Chapter V of the Annex, International Convention for Safety of Life at Sea, 1 November 1974.

[43] Ibid.,

[44] Supra note 5, Article 20 and Article 20(a) of the Amendment Directive

[45] Supra note 4.

[46] Article 98 of LOSC

[47] Supra note 16

[48] Article 192 and Article 225 of LOSC.

[49] Article 194(2), Article 195 of LOSC

[50] Erika I package, see supra note 5; Directive 2002/59/EC repealed Directive 93/75/EEC.

[51] ‘Ships in distress' was amended to ‘Ships in need of assistance', in accordance with the language used by the IMO in its Res A.924(23) and A.950(23).

[52] Appendix II of the Guidelines, supra note 4.

[53] Article 20(c) of the amendment directive, supra note 5.

[54] Very few States, including Denmark, Germany and Spain, had communicated their national plans within the earlier deadline of February 2004 under the EU Directive.

[55] Supra note 4.

[56] Guidelines, Preamble, 1.

[57] Guidelines, para. 1.1: Where the safety of life is involved, the provisions of the SAR Convention should be followed.

[58] See supra note 37.

[59] Guidelines, para 1.4

[60] Ibid., Appendix 1, fn 3, points out that at present there is no international requirement for a state to provide a place of refuge.

[61] Ibid., para. 1.12.

[62] Ibid., para 3.4

[63] Ibid., para 3.5, Appendix 2, Paragraph 2.

[64] Ibid., para 3.9-3.11.

[65] Ibid., para 3.10.

[66] Ibid., para 3.11.

[67] Ibid., para 3.12.

[68] See supra note 60.

[69] A. Chircop, ‘The IMO Guidelines on Places of Refuge for Ships in Need of Assistance', in A. Chircop et al., supra note 1 at p. 43.

[70] Guidelines, para 3.14.

[71] See IUMI in IMO Doc. MSC 77/82; CMI, in LEG 98/7; IMO Doc. LEG 89/7, submitted by the CMI, 19.08.2004, paras. 5, 19 and 20; See also Eric van Hooydonk, supra note 11, p. 444.

[72] E.g. Spain in IMO Doc. MSC 77/8/10.

[73] CMI Draft Instrument on Places of Refuge, CMI Yearbook 2007-2008, p. 128.

[74] Ibid., para 3 (‘Legal obligation to grant access').

[75] Ibid., para 7 (‘Guarantees').

[76] In June 2003, MSC 77 decided that there was no need for a convention on place of refuge for the time being, but that if the guidelines prove to be ineffective, it is possible that a proposal on an instrument would be submitted to the IMO.

[77] See Section 2 of this paper

[78] See A. Chircop, supra note 12, p. 221.; V. Frank, supra note 3, p. 62.

[79] See A. Chircop, sura note 12, pp. 220-221 for an elaborate discussion.