Legal Analysis of Government Ships’ Immunity in the Light of Sustainable Development and Environmental Security

Abstract

The immunity accorded to military ships and government ships used for non-commercial service in the high seas does not, in many cases, comply with the environmental protection measures set by the UN Convention on the Law of the Sea (UNCLOS). Both coastal and flag States attempt to balance their differing interests through UNCLOS; coastal States support the environmental protection of the high seas adjacent to their maritime zones while the flag States claim the rights of immunity and freedom of navigation. The jurisdictional immunity in the high seas accorded to government ships used only for non-commercial service will continue to raise inter-State disputes regarding the nature of permissible services and environmental protection. States should engage in a dialogue on these issues, in which they could discuss the concept of non-commercial service in the high seas, and bring into focus the potentially serious socio-economic and environmental consequences, such as accidental marine pollution caused by these ships.

Keywords

Maritime environmental law ships used for government non-commercial service sovereign immunity UN Convention on the Law of the Sea UNCLOS

On the basis of their activities, ships can be categorised into two groups: those that serve private interests and government ships. Government ships may be further divided into those that are employed for commercial purposes and those used only for non-commercial purposes. Of these, only those that are used purely for non-commercial service are accorded sovereign immunity (Convention on the Territorial Sea and the Contiguous Zone, Article 22(§2); and UN Convention on the Law of the Sea (UNCLOS), Article 32). Ships flying the flag of the United Nations or its specialised agencies or of the International Atomic Energy Agency are also accorded immunity (UNCLOS, Article 93).

This article briefly describes the concept of government ships and the basic sub-categorisation as either commercial or non-commercial.

In general, according to the law of the sea, international maritime law, and the national maritime legislation of almost all States, government ships enjoy a peculiar privileged regime, sometimes referred to as the “immunity regime” (UNCLOS, Articles 95 and 96) which, inter alia, generally relieves government ships that are engaged in activities for non-commercial purposes of criminal, civil and administrative responsibility regarding marine pollution (UNCLOS, Article 236). Some States, e.g., the former Soviet Union, have maintained the view that the immunity regime should be extended to all government ships regardless of the nature of their activities (Oxman, 1984).

At present, nearly all government ships navigating the high seas for non-commercial purposes enjoy sovereign immunity. In all the other maritime zones, however, the application of sovereign immunity depends on the domestic laws of the respective coastal State. Over the last few decades, the immunity regime has been objectively challenged based on the belief that these ships should no longer be immune from environmental regulations and the related sustainable development and environmental security trends. The need to preserve the marine environment enjoys wide acceptance as can be observed in the current UN discussions regarding biodiversity beyond national jurisdictions (Tsioumanis, 2020). 1 When fully applied, the instrument resulting from these negotiations could significantly contribute to the sustainable use of the seas.

1 Basic Terms and Definitions

Two particular definitions are important to this article’s discussion.

1.1 1.1 Government Ship

A “government ship” is a ship that, irrespective of the nature of ownership (public or private), holds State authority or performs a specific State service. UNCLOS uses the terms “ship” or “vessel” interchangeably. At Article 29, it clearly defines the main characteristics of a warship, such as the vessel’s nationality and the military status of the officers and the crew members. UNCLOS uses these characteristics in order to distinguish between warships and merchant ships. Warships are classified as government ships. Other classifications of government ships are those used only for government non-commercial service such as the US National Defense Reserve Fleet (MARAD, 2019). Government ships on the high seas have complete immunity from the jurisdiction of any State (UNCLOS, Articles 95, 96) and Article 32 states that, with a few exceptions, “nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes”.

1.2 1.2 Sovereignty

For this purpose, “sovereignty” is the possession of rights and obligations by States within the territory in which they can exercise exclusive jurisdiction. Thus, every State has to respect the rights of all the other States. So long as it does so, a State may claim independent and equal sovereign immunity for itself (Charter of the United Nations (UN Charter), Article 2.7). A State’s jurisdiction over ships cannot be restricted exclusively to the national territory since every State aims to preserve its interests both within and outside the national borders.

2 Historical Development

2.1 2.1 Origins

Immunity is the protection of one State’s representatives from the exercise of jurisdiction of another State. It is about the rule of customary international law and initially referred to the king, who was legally identified as the State he ruled. The law accorded the State certain immunities from the exercise of other States’ jurisdiction.

As the contemporary concept of the State has emerged, international law has continued to recognise challenges relating to the immunity of foreign States. Over the years, however, the main challenge – the idea of “the irresponsible King” – was separated from the idea of “State responsibility”. Contemporary situations call for re-examination of the justification for the privilege of immunity in light of the principles of the equality of States, State sovereignty and independence.

2.2 2.2 Current View

In most States, foreign sovereign immunity extends to the various organs of other States, including persons who are most closely associated with the functions of those States, especially Heads of State, diplomatic missions, consulates and, inter alia, government ships (Ruys et al., 2019; Fox and Webb, 2015).

Originally, in the exercise of public authority, immunity was a natural consequence of the restriction of State actions. At the beginning of the 20th century, however, States began to enter into commercial transactions, so that governmental vessel immunity created an inequality, giving States an advantage that was unavailable to private traders. Moreover, States had immunity, rendering affected traders unable to bring a case to court. This inequality led to the gradual recognition of a distinction between acts that constitute the exercise of State power (jure imperii) and the State’s private or commercial acts (jure gestionis).

Only the former (jure imperii) are generally covered by immunity; however, this separation of acts of the State is not free of problems as there are no specific and clear rules of international law for the classification of acts as jure imperii or jure gestionis. Additionally, there is no unanimity as to whether such classification would be in accordance with the law of the State invoking jurisdiction. There are also different opinions as to whether the purpose or nature of the acts should be the criteria for such a distinction.

If the State is exercising public authority, then jure imperii applies. Where the State trades in goods for profit, however, it is acting jure gestionis and not immune, since this activity could also have been performed by private parties.

2.3 2.3 Criticisms

Grounding the approach to immunity on this division has given rise to three criticisms: (a) that there were no specific and clear rules of international law governing the characterisation of acts as jure imperii or jure gestionis, (b) that it was not clear which forum’s law applied, and (c) that the distinction between jure imperii and jure gestionis may vary depending on the nature of the governmental action taken – that is, that the same acts may be differently characterised by different courts applying different criteria – resulting in contradictory decisions (Rothwell and Stephens, 2016; Kraska, 2011).

3 Ships’ Immunity and the Marine Environment

The following discussion notes relevant legal concepts and bases for both immunity and environmental protection.

3.1 3.1 Immunity of Certain Ships

The International Convention for the Unification of Certain Rules Relating to the Immunity of State-owned Ships (Brussels Convention, 10 April 1926) and its Additional Protocol of 24 May 1934 represent a crucial step in clarifying the issues of immunity, rights and obligations with regard to ships used only for government non-commercial service.

A government’s ship that sails through another State’s marine territory (and even if it enters into port) enjoys the privilege of immunity and needs no special authorisation. According to a 1989 USA-USSR Joint Statement on the Uniform Interpretation of Rules of International Law Governing Innocent Passage, all ships and not just warships enjoy the privilege of innocent passage while sailing through other States’ territorial seas without prior notification. This immunity of government ships when they are in the Coastal State’s maritime zones was justified on the basis of a pre-existing argument referred to as the “theory of extraterritoriality”, under which the ship is considered to be a sui generis floating fortress and should be treated by other States as an extension of the territory of its flag State. Under this theory, the coastal authorities’ jurisdiction is excluded with regard to allegedly illegal actions on board the foreign vessel. According to Article 22(2) of the 1958 Convention on the Territorial Sea and the Contiguous Zone and Articles 30 and 31 of UNCLOS, however, certain additional authorisations are granted to coastal States; 2 although the bases of those authorisations are generally viewed as customary international law and international agreements and not the theory of extraterritoriality.

3.2 3.2 Protection of the Marine Environment

The legal documents addressing the status of government ships engaged in non-commercial activities are rather silent about marine environmental protection. Although UNCLOS provides guidelines on environmental protection and marine pollution, it does not address questions concerning the operations of ships used only for government non-commercial service in relation to these provisions. This gives rise to a debate between coastal States and flag States concerning the intersection of concerns about protection of the marine environment and freedom of navigation in the high seas. Although the coastal State has sovereign rights to protect the high seas adjacent to its maritime zones from pollution, it is also clear that “having a sovereign right” is not synonymous with “having sovereignty” as the latter is viewed in law.

In 1949, the International Court of Justice (ICJ) decided the Corfu Channel case (United Kingdom of Great Britain and Northern Ireland v. Albania), with regard to the freedom of navigation of warships in peacetime. The ICJ’s findings in the Corfu Channel case were crucial since the freedom of navigation is the foundation for military operations at sea. However, the Court’s decision did not specify the scope of the rights included in the freedom of navigation of ships used only for government non-commercial service.

In furtherance of the above, UNCLOS sets out the provisions of environmental protection from ships’ pollution in maritime zones. Under Article 211(6)(c), coastal States may introduce stricter measures than the generally accepted international environmental protection of high seas and other maritime zones, as long as they meet certain requirements, including notification of “the competent international organization” and only 15 months after sending such notification and even then, the requirements will only become applicable if “the organization agrees within 12 months after the submission of the communication”.

Beyond this, UNCLOS Article 236 clarifies some of the limits of sovereign immunity in this context:

The provisions of this Convention regarding the protection and preservation of the marine environment do not apply to any warship, naval auxiliary, other vessels or aircraft owned or operated by a State and used, for the time being, only on government non-commercial service. However, each State shall ensure, by the adoption of appropriate measures not impairing operations or operational capabilities of such vessels or aircraft owned or operated by it, that such vessels or aircraft act in a manner consistent, so far as is reasonable and practicable, with this Convention (emphasis added).

In its Preamble and Articles 88 and 301, UNCLOS states that maritime activities should be performed for peaceful purposes; while, according to Article 192, “States have the obligation to protect and preserve the marine environment”. This means that States should take all necessary measures to prevent, reduce and combat pollution of the marine environment from any source. These clauses are open to interpretation and could balance the interests of States in the high seas if the ships used only for government non-commercial purposes are also acting for peaceful purposes that ensure marine environmental protection. In parallel, States could ensure that activities within their jurisdiction or control, are carried out in such a way as not to cause pollution damage to other States and their environment (Articles 193, 194, 195). If a coastal State’s legal rights in the high seas adjacent to its maritime zones are uncertain, then equity will resolve the issue of ships being used only for government non-commercial service.

In 1992, the UN Conference on the Environment and Development (UNCED) adopted, inter alia, the Rio Declaration on Environment and Development, with Agenda 21 as its Action Plan for Adoption and Implementation by Governments. Chapters 17 and 18 of Agenda 21 refer to the protection of water resources, including the protection of the oceans and all categories of the seas, including closed and semi-enclosed seas, as well as the protection and rational use and development of living marine organisms. Agenda 21 also addresses both the protection of the quality and the supply of fresh water and the need to adopt integrated approaches to the development, management and use of all water resources. Among other things, with regard to the protection of the oceans, Agenda 21 refers to integrated management and sustainable development of maritime zones, including high seas areas that are nearby but beyond national jurisdiction. UNCLOS imposes part of the responsibility for their environmental protection on coastal States and also on flag States.

The Rio Declaration includes the precautionary principle – that is, a basic obligation that States take appropriate measures so that potential polluting activities do not cause damage on the high seas. Specifically, it states that this principle “requires that, if there is a strong suspicion that a certain activity may have environmentally harmful consequences, it is better to control that activity now rather than to wait for incontrovertible scientific evidence”. In other words, it is preferable to prevent any potential damage to the environment rather than to attempt to restore the environment after damage has occurred. The main purpose of the precautionary principle is sometimes described as seeking to eliminate the possibility of causing environmental damage beyond the boundaries of national jurisdiction by taking effective measures to prevent environmental degradation (Duvic-Paoli, 2018). There is, however, no uniform understanding of the concept among States. Most generally, States characterise it as the “prevention principle” and view it as requiring them to act with caution when making decisions concerning activities likely to have an adverse effect on the environment, and forget about the “precautionary” objective of the principle (Sands et al., 2018).

An earlier conference, the United Nations Conference on the Human Environment (Stockholm, 1972) also addressed these issues. Principle 2 of its Declaration refers to safeguarding natural ecosystems, Principle 4 to nature conservation, and Principle 5 to the dangers of future exhaustion of the earth’s non-renewable resources. Principle 7 calls on States to “take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea”. Here too, the emphasis is on preventive measures.

International environmental law makes it more difficult to attribute liability and proportionate compensation for environmental damage suffered by ships used only for government non-commercial service purposes, reflecting a general unwillingness amongst States to support or start a process of seeking responsibility, a reluctance based primarily on reasons of immunity. In light of the fact that coastal States are not entitled to claim responsibility and compensation from ships used only for government non-commercial service due to immunity, there has been gradual weakening of their dissuasive and preventive function, which has highlighted the dominance of prevention over precaution. While States have the right to enjoy environmental goods, one of their basic duties is to protect the environment from ecological tensions and damaging environmental impacts. The aim can only be achieved within State sovereignty.

4 The Actions of the M/V Cape Ray

The M/V Cape Ray is a vessel within the National Defense Reserve Fleet of US-Government-owned vessels managed by the U.S. Maritime Administration (MARAD) as a reserve of ships for national defence and national emergencies (Marx, 1948). In 2014, the M/V Cape Ray was used only for government non-commercial service – specifically, the on-board neutralisation of Syria’s stockpile of chemical weapons. It undertook these activities on the Mediterranean high seas following a decision of the Organisation for the Prohibition of Chemical Weapons (Pellerin, 2014). This was an unprecedented experiment. With no State in the world willing to permit Syrian chemicals to be destroyed on its soil, a controversial system consisting of two field-deployable hydrolysis units was installed on the Cape Ray, enabling its crew to process the chemicals and produce neutralised chemical wastes. The effects of this system are relatively little understood from a scientific perspective. As discussed below, the decision to carry out the destruction of Syria’s chemical weapons on-board the M/V Cape Ray could set a legal precedent for similar treatment of chemical weapons and raise tensions between coastal and flag States.

The M/V Cape Ray was used only for government non-commercial service in the high seas and its mission highlighted important issues pertaining to the rights of complete immunity and freedom of navigation as well as the unwillingness to implement the marine and overall environmental institutional framework (Samiotis and Grekos, 2016). This case added to the possibility that government vessels might cause accidental pollution and raised questions as to the legal status of ships used only for government non-commercial service in the high seas and their exemption from the marine environmental protection rules, while creating an extremely dangerous precedent for the systematic future circumvention of the relevant legislative framework.

The destruction of Syrian chemical weapons on-board the M/V Cape Ray was carried out on the Mediterranean high seas, in particular in the Ionian Abyssal Plain and south of Crete. The Mediterranean is a semi-enclosed sea, and most of it is within the EEZ of Mediterranean coastal States.

Although the Mediterranean coastal States opposed the use of weapons of mass destruction that are contrary to the provisions of international law, and had ratified treaties on the non-proliferation of weapons of mass destruction (the Treaty on the Non-Proliferation of Nuclear Weapons, the Comprehensive Nuclear-Test-Ban Treaty, the Chemical Weapons Convention and the Biological Weapons Convention), they had failed to take the necessary diplomatic measures against the transport and destruction of Syrian chemical weapons on-board the M/V Cape Ray. Eventually, several non-governmental organisations in Greece threatened that they would force the vessel to withdraw to the high seas adjacent to Greek maritime zones, but they did not act on this threat. As a result, the M/V Cape Ray was escorted by a war vessel for her protection, while engaged in her work.

MARAD should be held responsible, at least, for (i) a breach of Section 11 of the Merchant Ship Sales Act of 1946 (use of reserve vessels for national defence and national emergencies), (ii) a series of omissions in the area of environmental protection, and (iii) diplomatic silence on the controversial issue of the destruction of Syrian chemical weapons on the Mediterranean high seas.

Some aspects of the situation were rather vague. There was no transparency with regard to the assessment of the chosen neutralisation method (hydrolysis). Opponents noted that many types of treated effluent might be produced, including some that could cause reactor corrosion, insulation leaks and blockages in the hydrolysis facility on the M/V Cape Ray (Palaiologos, 2014). Eventually, the on-board destruction of Syrian chemical weapons was completed without fully informing the coastal States and the international community of the scientific data.

The coastal States were obliged to follow UNCLOS rules of complete immunity, given that the M/V Cape Ray was a government vessel being used only for government non-commercial service. Their need to be informed of the consequences of destroying chemical weapons on-board a single-hulled vessel off their shores was not recognised. In the case of an accident or failure of this dangerous project, the damage would have been much more extensive than the loss of the vessel. Consider, for example, the damage caused by the oil spill accompanying the sinking of the M/V Prestige in 2002, and recall that the potential pollution from the destruction of chemical weapons could be much more dangerous.

The shipboard destruction of Syrian chemical weapons created an emergency condition, requiring potentially affected coastal States to be prepared for any leak that could lead to “operational pollution”. For these purposes, “operational pollution” is distinct from pollution which may occur when hazardous materials are released into the sea as the result of a casualty, in the sense that operational pollution occurs out of planned operations. Some possibilities included the contamination of bilge residues, which is dangerous not only for the vessel’s hull but also for human health.

The arguments put forward by MARAD, as representative of the M/V Cape Ray’s flag State (the US), emphasised the complete immunity of the vessel and its freedom of navigation. By contrast, coastal States accused the US of undertaking notorious experimentation with the potential to cause environmental harm on the high seas. These debates continue, and the issue is unlikely to be resolved because the two sides fundamentally disagree on key elements such as the grounds for complete immunity and the nature of activities that are permissible in high seas areas adjacent to the maritime zones of coastal States. The Cape Ray case is emblematic of the controversy regarding the immunity of vessels used only for government non-commercial service in the high seas, with regard to environmental risks.

5 Validity and Future of Vessel Immunity

The remainder of this article examines the following questions regarding immunity: (i) Does a vessel of one flag State, which is used only for government non-commercial service, have the right to conduct dubious marine operations potentially posing threats to the marine environment in the high seas adjacent to the maritime zones of other coastal States? and (ii) When, if ever, are such operations permissible? Specifically, is the potentially affected coastal State entitled to prior notification and information, and is it authorised to give or refuse permission for such operations?

The scope of this analysis is limited to considering the activities of government vessels in the high seas in peacetime, based on the issues and context of the M/V Cape Ray case in the Mediterranean Sea as described above. The issue of government vessels in non-commercial service is extremely controversial and could breach diplomatic relations between States.

5.1 5.1 Ships Used “Only For GovernmentNon-Commercial Service”

As a legal matter, the sovereignty of the coastal State in its territory is taken for granted. But when a flag State carries out activities on the high seas adjacent to the maritime zones of other coastal States, including those that cause damage to the global environmental commons, such as the release of chemicals and pollution of the marine environment, the coastal State is bound by the Brussels Convention. As noted above, although the Brussels Convention recognises these ships’ immunity, it does include some limited exceptions, as a result of which even ships used only for government non-commercial service could be subject to certain coastal State rules and obligations, rather than the complete immunity of UNCLOS Article 96, which can result in unfair solutions, particularly in view of a State’s activities in the contemporary era.

Although referred to in Articles 88 (Reservation of the high seas for peaceful purposes) and 236 (Sovereign immunity), the concept of “ships used only for government non-commercial service” is not clearly regulated by UNCLOS in connection with environmental protection. Similarly, UNCLOS Article 88 contains no definition of peaceful purposes. It is argued that UNCLOS confers the competent authority with the power to decide whether to comply with the requirements of Part XII or not.

There are, however, other international instruments that provide a bit more clarity regarding when and whether a ship is considered to be “used only for government non-commercial service” and noting the responsibilities of the flag State. For example, the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78) provides an exemption for such vessels in Article 3(3):

The present Convention shall not apply to any warship, naval auxiliary or other ship owned or operated by a State and used, for the time being, only for government non-commercial service. However, each Party shall ensure by the adoption of appropriate measures not impairing the operations or operational capabilities of such ships owned or operated by it, that such ships act in a manner consistent, so far as is reasonable and practicable, with the present Convention.

Similarly, the International Convention on the Prevention of Marine Pollution by Dumping Wastes and Other Matter (London Convention, 1972) provides, in Article VII(4),

This Convention shall not apply to those vessels and aircraft entitled to sovereign immunity under international law. However, each Party shall ensure by the adoption of appropriate measures that such vessels and aircraft owned or operated by it act in a manner consistent with the object and purpose of this Convention and shall inform the Organization accordingly.

The record of UNCLOS’s negotiations also provides some insight. It notes that States agreed that UNCLOS “shall not apply to naval vessels, military aircraft or their auxiliaries or other ships owned or operated by a State and used only for government non-commercial service” (emphasis added). But that decision was in contrast with Articles 210 (Pollution by dumping) and 211 (Pollution from vessels) where it was agreed that States (a) “shall establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels”; and (b) “acting through the competent international organization or general diplomatic conference, shall establish international rules and standards to prevent, reduce and control pollution of the marine environment” (see extract from the Official Records of the Third United Nations Conference on the Law of the Sea (1973– 1982), Volume V: A/CONF.62/WP.8/Rev.1/Part III Revised single negotiating text (part III)).

When referring to ships used only for government non-commercial service, however, even UNCLOS provides only a functional (rather than complete) immunity. It draws a line between private commercial and government commercial activities expressed in Articles 95 and 96. Specifically, where Article 236 discusses immunity for ships used only for government non-commercial service, that protection is tied to an obligation to adopt appropriate measures in a manner consistent with UNCLOS:

That provision would include consistency with the standards of marine environmental protection of Part XII. But this requirement does not indicate how to address a situation in which a ship used only for government non-commercial service fails to achieve consistency with UNCLOS – cases in which the vessel causes and does not mitigate increased environmental risk or an accident. In light of the last sentence of Article 236, it would appear that the flag State would be responsible for marine environmental damage.

In that scenario, coastal States also have responsibilities. They must (i) be vigilant to preserve and protect the environment from unprovoked and unwarranted activities which may pollute their territory; (ii) manage the natural resources that belong to them in a sustainable way to leave a legacy for future generations; and (iii) (according to the 2030 Agenda for Sustainable Development) protect, conserve and enhance the environment – obligations of all mankind.

5.2 5.2 Environmental Security

Finally, in this connection, UNCLOS Articles 192– 195 refer to the sovereignty of coastal States over their maritime territory, their right to adopt prevention and other measures to protect that environment, and their obligation not to transfer damage or hazards from one area to another. These articles seem potentially controversial, in light of the M/V Cape Ray case, and raise a number of serious issues for environmental security.

The transport and destruction of chemicals or any hazardous material on board a ship used for government non-commercial service in the high seas constitute a threat to a coastal State’s environmental security. “Security” is used here in relation to environmental problems described as threats. In general, security is the State’s method of protection against external and internal threats. Given that there is no commonly accepted definition of “international security” (Gheciu and Wohlforth, 2018; Hough et al., 2015; Dannreuther, 2013), States and organisations are authorised to address the specific concept driven by public order or national security subjectively and individually. The UN Charter provides a detailed reference to the maintenance of world peace and security.

In the 1990s, after the end of the Cold War, the term “security” was extended to socio-economic and environmental fields. As a result, at present, it is recognised that each coastal State’s security is affected by economic, social and environmental issues, but also that it is an issue of global dimensions, extending well beyond the narrow geographic national context. As such, addressing it requires coordinated transnational or regional actions, policy synergies and financial mechanisms. Security is also a fundamental prerequisite for environmental development, deterrence of crime and promotion of economic prosperity (Gheciu and Wohlforth). In other words, the concept of security covers a broad range of interconnected issues that affect the survival of society.

That said, human security, as a factor which contributes to the quality of life, is distinct from State security (Smith, 2017). Environmental security, addressing situations where human activities have impact on the environment, is also critical.

The concept of environmental security was recognised in the Brundtland report (Our Common Future, 1987), where it was portrayed as also being a threat to State security. Often credited with introducing the term “sustainable development” in the environmental context, the Brundtland report recognised the environmental crisis as a major threat. That report also set the basis for the 1992 Earth Summit and its Rio Declaration (Smith). Following it in 1995, the North Atlantic Treaty Organization’s (NATO’s) Committee on the Challenges of Modern Society coined the term “environmental security” (Trombetta, 2008). In 2004, the United Nations High-Level Panel on Threats, Challenges and Change expanded the concept of security policy, stating that States should cooperate because security threats know no borders (UN, 2004).

There are many ways in which environmental security can be perceived as a threat to the State, including with regard to the operations of vessels used only for government non-commercial service that affect the marine environment of coastal States and their populations’ socio-economic wellbeing (Gheciu and Wohlforth; Smith). Another example is concerns about terrorist threats against nuclear facilities. In 2016, at a Nuclear Security Summit held in Washington DC, then-President Obama stated that, if its evolution is not interrupted, the threat of nuclear terrorism remains one of the greatest challenges to international security (Nuclear Security Summit, 2016).

Seen in the context of security threats, the M/V Cape Ray case presents a challenge. The immunity of ships used only for government non-commercial service, even in peacetime, could have disastrous consequences. If its activities posed a major environmental risk and the vessel refused to abate that risk, affected States might be tempted to take military action against the vessel. Consider, for example, the wreckage of the chemical tanker ship M/V Ievoli Sun in 2000 (Mohit, 2016), and the oil tanker M/V Prestige in 2002. The environmental effects of those spills on neighbouring States impacted the international community at large. “Environmental security” is the way to tackle such problems, and to ensure that a State’s environmental security is recognised as an essential aspect of national security.

After the recent unrest in North African States, it seems clear that diplomatic relations are suffering from political disputes which create destabilisation and lead to warfare. The possibility that one State might choose to exercise its military power against ships used only for government non-commercial service cannot be ruled out. Were this to happen, the result would be catastrophic for humanity (Wiese Bockmann, 2019). Ships like the M/V Cape Ray, engaging in controversial activities, could jeopardise the environmental security of a wide region in case of accident or terrorist attack. Environmental security is affected by asymmetric threats (Institute for National Strategic Studies, 1998). If, for example, the M/V Cape Ray had been boarded or hit or had otherwise come under the control of dissident groups or terrorists, the results could have been completely destructive to the socio-economic and environmental sustainability of the entire region and of humanity in general.

Asymmetric threats that occur in the region, such as international terrorism, the movement of weapons of mass destruction and international organised crime, currently exist. The terrorist attacks in New York in 2001 and more recently in Yemen (LaGrone, 2016) should encourage the US and EU to take measures to stop experiments of the type that was undertaken on the M/V Cape Ray. Such asymmetric threats should be taken into consideration in order to prevent unpredictable socio-economic and environmental consequences – consequences that may have fatal results for humans.

The EU, having strengthened its political dimension, is capable of providing environmental security but clearly, it cannot ensure stability without international help. Addressing asymmetric threats requires institutional and administrative improvements to security mechanisms and emergency response. Also, the operation of a reliable information system about the movement of government ships used on non-commercial service will provide early warning and a shield of environmental security. Fundamental responsibility of States should be established in order to implement permanent, effective security measures for all government ships used on non-commercial service so as to prevent a potential accident.

6 Sustainable Development and Environmental Security in the Mediterranean

The Mediterranean Sea includes scenic areas, major fisheries and an important navigation channel through which passes around one third of all global trade. Energy-production industries in the Middle East and Central Asia make extensive use of Mediterranean maritime routes, connecting them to the energy-consuming markets of Europe and elsewhere (Saviolakis and Pazarzi, 2013). It has been stated that 17 percent of the world’s oil pollution goes into the Mediterranean, and that the surrounding areas are sensitive to pollution because of their long water-renewal rate (EU Resolution B8-0335/2014). These conclusions suggest an ominous future for the Mediterranean coasts.

As the Mediterranean Sea’s environment degrades, the region’s biodiversity is threatened. It is essential to act immediately as to any potential environmental threats that can be addressed – including harm from intentional or unintentional discharges of chemical wastes. Under these circumstances, it seems that international strategies on regional protection, sustainability and blue growth need to be questioned, and measures for the protection of the Mediterranean Sea developed, based on the existing legal framework.

6.1 6.1 Sustainable Development

The principle of “sustainable development” – development that meets the needs of current generations without compromising the ability of future generations to meet their own needs (Brundtland, 1987) – protects long-term economic, social and environmental benefits by currently recognising and addressing the needs of both present and future generations (Agenda 21). This concept has been incorporated in the documents of the UNCED, as well as in the EU Blue Growth (integrated maritime development) Policy (Alhaji, 2003).

In particular, the EU Blue Growth Policy is defined as the long-term strategy to support the sustainable development of the marine and maritime sector. This policy is based on the fact that the seas are levers for development on the basis of the objectives of the “Europe 2020” strategy. According to the EU, it is estimated that the blue economy represents almost 5.4 million jobs and “gross value added” of 500 billion Euros per year (European Commission, 2019). That policy recognises, however, that the implementation of the Marine Spatial Planning tool for Mediterranean States alone could not ensure the sustainable development of local economies (Framework Directive 2014/89/EU).

6.2 6.2 Freedom of Navigation: US and EU Views

Under UNCLOS, the high seas are governed by the freedom of navigation. This was strongly cited by MARAD, even though the US has not yet ratified the UNCLOS.

In fact, in 1983, then-President Reagan declared in the National Security Decision Directive 83:

The United States will exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the UNCLOS. The United States will not, however, acquiesce in unilateral acts of other states designed to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses.

This declaration is sometimes thought to imply that the US accepts the UNCLOS as customary international law and as “a comprehensive legal framework relating to competing uses of the world’s oceans”. Still, however, a confrontation between a coastal State and the US as a flag State would have an immediate impact on maritime trade and call into question the principle of freedom of navigation and marine environmental protection.

As noted above, the M/V Cape Ray is a US government vessel, which was at the time used only for government non-commercial service. As the flag State of that vessel, the US views coastal States as a challenge to its interests and follows a twisted legal strategy by using diplomatic, economic and military channels to ensure its position. The US navy and reserve fleet are intended to maintain US maritime supremacy throughout the world. Although coastal States favour a peaceful relationship with the US in order to cooperate and protect the marine environment, the US interprets UNCLOS as enabling ships used only for government non-commercial service to conduct dangerous experiments, involving on-board chemical wastes destruction in any part of the world. Thus, the M/V Cape Ray case epitomises an unresolved maritime dispute so volatile that the future possibility of State conflict or a terrorist attack cannot be avoided with certainty. It seems that the US is not the guarantor of maritime stability and environmental security after all.

The US and the EU share long-standing political, diplomatic, economic and security bonds. Their respective contributions to international law affect States around the world. Furthermore, as NATO members, they have developed a programme of mutual defence and security cooperation. NATO’s auspices could provide a basis for a new development of clearer principles regarding the immunity of ships used only for government non-commercial service. Such cooperation, however, poses a double challenge. First, the world is facing the above-noted imperialist strategy, through which the US takes advantage of the immunity of ships used only for government non-commercial service. On the other hand, potential conflicts similar to that of the M/V Cape Ray might easily arise between other coastal States and the US. Such conflicts could have a serious effect on the global or regional environment and economy. The EU has been cautious in its response to the M/V Cape Ray case since it was apparent that there was no legal basis for coastal States to take action (Samiotis and Grekos).

The EU’s marine environmental interests do not coincide with the concerns and objectives of the US. The EU has chosen a soft-power approach with a focus on UNCLOS. Its choice supports marine environmental protection and security. EU Member States, however, can only cooperate at the regional and bilateral level. None of them has the power to address the threats from US ships used only for government non-commercial service. The development of a code of conduct to address these situations would be indispensable, preferably in the context of bilateral and multilateral discussions among States. It might also be helpful to prepare draft legal tools as a basis for such talks.

7 “Freedom of the High Seas”

UNCLOS Article 86 notes that the provisions of UNCLOS Part VII (“High Seas”) apply to “all parts of the sea which are not included in the EEZ, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State”. There is a difference, however, between the “freedom of high seas” (freedom from the jurisdiction of coastal States) and the “freedom of activities on the high seas”.

Specifically, while ships used only for government non-commercial service on the high seas have the freedom of navigation, UNCLOS Article 87(2) states that this freedom must be exercised “with due regard for the interest of other States in their exercise of the freedom of the high seas”. As noted above, the legal obligations of those ships are ensured by their respective flag States (UNCLOS, Articles 94– 96). Thus, freedom of the high seas is not an absolute right, and vessels and their flag States must be aware of treaties regarding protection of the marine environment.

Although stating that the high seas shall be reserved for peaceful purposes (Article 88), UNCLOS Part VII does not differentiate which non-commercial services are legal activities of government ships. UNCLOS Article 301 (Peaceful Use of the Seas) addresses that lacuna, strictly prohibiting certain military activities:

In exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law enshrined in the Charter of the United Nations.

Thus, the flag State of a government ship is obliged to comply with the UN Charter even if that State has not ratified UNCLOS, so long as it is a UN Member State. Such a State’s ships engaging in non-commercial service, although they may enjoy sovereign immunity (UNCLOS, Article 236), are still obliged to avoid actions that pose a threat to any State.

If used in the manner described above, the issue of immunity of government ships used on non-commercial service could lead to serious geopolitical instability, especially in tension areas like the Mediterranean Sea. Clearly, concerns about international growth and prosperity are critical considerations with regard to marine environmental security, but other factors are also relevant. For example, the possibility of terrorist attacks on US warships raised serious concerns at the time of the M/V Cape Ray’s experiment. Terrorism and asymmetric threats of this kind diminish the prospects for cooperation between States, with a resulting negative impact on environmental security. The new prevalence of concern regarding the immunity of government ships following the Cape Ray situation is adding to the chronic environmental security problems that exist in the Mediterranean Sea. Such a tense relationship between States is a further obstacle to environmental security.

8 Proposals

In order to reassess the immunity status of ships used for government non-commercial service, it is important for all States to assume responsibility. The perception of complete immunity for government ships used on non-commercial service poses a risk of political decisions that might cause irreversible damage to the environment. The regulation of the issue must be a choice of the international community.

Sincere international cooperation among States should aim to regulate the issue with the application of new legal mitigation measures. Such measures should aim also to avoid the deterioration of the environment, ensure quality of life and avoid adverse effects for future generations.

To date, the examination of the existing legal framework and policies has not yielded concrete results. Therefore, successful policies should be harmonised with new legislation while the other policies and measures should be removed in favour of modern responses. Although the EU’s environmental and Blue Growth policies (which have been identified as the main challenge for EU’s growth in general) aim at the protection and sustainable development of terrestrial and marine ecosystems, States around the world have not responded effectively.

It is generally accepted that the US has a key role in the international legislative environmental affairs. Other States have to persuade the US that the change of immunity status in government ships is a high-priority issue on the political agenda. Conditions are ripe for a broad awareness to develop that the special treatment of government ships engaged only in non-commercial service may contribute significantly to the destruction of the marine environment. The effective participation of States in promoting solutions associated with sustainable development is critical. In that event, of course, proper implementation of any new and stricter environmental policy must also occur.

To this end, the terms “immunity” and “non-commercial service” should be reconsidered, so that their operation would include the prior notification of non-commercial service on the high seas and possibly its prior authorisation by the competent UN body. This issue would seem to be one that requires discussion among the States that are Parties to key instruments (UNCLOS, etc.), perhaps under the auspices of NATO or the International Maritime Organization.

9 Conclusion

The policy to be set for the marine environment is an issue to be addressed by all of society. The environment is not a factor that limits growth but rather one that encourages sustainable development. Based on this principle, there should be interventions in international laws of concern (especially the immunity discussed in this article) to minimise the possibility that it might cause damage to the environment.

The 2014 M/V Cape Ray experimental mission was conducted at the outside limits of legality. It is a matter of question for the international community and a legal precedent whether the vessel should have applied a principle under which affected States would make the key decision. Given the lack of available information about the ship’s mission, the international community could not effectively address the issue, and principles adopted in the EU under the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, under which the affected States and their people would have been made aware of potential risk factors, such as the processes to be used and the composition and quantity of the Syrian chemical weapons to be neutralised, could not be followed.

In today’s world, society is dominated by the interests of the markets, and environmental public goods are at stake. The liability arising from the protection of the terrestrial and marine environment as a trust for future generations, however, is of much greater importance than these competitive commercial issues. It is obvious that solving environmental problems is extremely difficult and complex; however, when there is a risk of irreversible damage to the environment from States’ actions, society should decisively contribute to addressing it. The measures and decision-making procedures used should be designed to prevent environmental degradation and to contribute to the legal resolution of conflicts. Currently, there is an imperative need for a direct presence (the welfare State) for the protection of the marine environment in international policies.

Global developments in recent years have increased political instability. The M/V Cape Ray case has instigated the prominence of a serious political issue that must be handled by States in a spirit of convergence, cohesion and solidarity, including through the leadership of the US and EU. This article has underscored the need for review of the concept of immunity of ships used for government non-commercial service, in light of the need to promote and enhance the efficient protection of the marine environment without prejudice to sovereignty. The protection and sustainable development of the marine environment could be promoted through a new strict regime of immunity in order to limit the uncontrolled operations of ships such as the M/V Cape Ray. Any redefinition of these concepts will require focused dialogue and proposals aimed at modifying and supplementing specific topics and regulations of the law of the sea, international maritime law, EU law and, of course, subsequent adaptation of regulations to the national law of the States.

Such a comprehensive package of measures could actually build a stable legal framework for the reversal of the potential accident or terrorist operations against government ships. A new international policy to deal with this issue should include the participation of all States, in parallel with international organisations. Today, the relative failure of regulatory restriction of ships with immunity status is mainly due to the reluctance of States. In the end, however, a new approach to the issues discussed in this article might ultimately be recognised as a competitive advantage – it is in the interest of the government ships, too, to operate in a manner friendly to the environment. Prudence must prevail, of course; such that the targeted portfolio of actions to control government ships is adapted to the impact and the promotion of scientific research.

Footnotes

The UN description of these negotiations is available at .

Specifically, UNCLOS Articles 30 and 31 address the power of a coastal State to require a foreign warship to leave the coastal State’s territorial sea that arises where that ship “does not comply with the laws and regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance therewith”. They also provide that “[t]he flag State shall bear international responsibility for any loss or damage to the coastal State resulting from the non-compliance by a warship or other government ship operated for non-commercial purposes with the laws and regulations of the coastal State concerning passage through the territorial sea or with the provisions of this Convention or other rules of international law”.

References

Alhaji,

2003. “From Rio to Johannesburg: Reflections on the Role of International Legal Norms in Sustainable Development”. Georgetown International Environmental Law Review16(1): 21–76, at 31.

Charter of the United Nations, signed in San Francisco on 26 June 1945, at the conclusion of the United Nations Conference on International Organization, and entered into force 24 October 1945.

Convention on the Territorial Sea and the Contiguous Zone, Geneva, 29 April 1958. Available at https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=XXI-1&chapter=21&clang=en.

Dannreuther,

2013. International Security: The Contemporary Agenda. Second Edition. Cambridge: Polity Press.

Duvic-Paoli,

A.L.

2018. The Prevention Principle in International Environmental Law. Cambridge Studies on Environment, Energy and Natural Resource Governance. New York: Cambridge University Press.

European Commission. 2019. “Blue Growth”. European Commission/Maritime Affairs/Integrated Maritime Policy. Available at https://ec.europa.eu/maritimeaffairs/policy/blue_growth_en. Accessed 21 September 2019.

Fox,

and Webb,

2015. The Law of State Immunity. Third Edition, at 75. Oxford: Oxford University Press.

Gheciu,

and Wohlforth,

W.C.

2018. The Oxford Handbook of International Security. Oxford Handbooks. Oxford: Oxford University Press.

Hough,

, Malik,

, Moran,

and Pilbeam,

2015. International Security Studies: Theory and Practice. London: Routledge.

10.

Institute for National Strategic Studies, National Defense University. 1998. Strategic Assessment 1998: Engaging Power for Peace. Washington DC: National Defense University Press.

11.

International Convention for the Unification of Certain Rules Relating to the Immunity of State-owned Ships, signed in Brussels on 10 April 1926, and entered into force 8 January 1937.

12.

Kraska,

2011. Maritime Power and the Law of the Sea. Oxford and New York: Oxford University Press.

13.

LaGrone,

2016. “USS Mason Fired 3 Missiles to Defend From Yemen Cruise Missiles Attack”. USNI News, 11 October. Available at https://news.usni.org/2016/10/11/uss-mason-fired-3-missiles-to-defend-from-yemen-cruise-missiles-attack. Accessed 2 June 2019.

14.

MARAD (U.S. Department of Transportation, Maritime Administration). “National Defense Reserve Fleet (NDRF)”. See https://www.maritime.dot.gov/national-defense-reserve-fleet. Accessed 2 July 2019.

15.

Marx,

1948. “The Merchant Ship Sales Act of 1946”. The Journal of Business of the University of Chicago21(1): 12–28.

16.

Mohit. . 2016. “The Ievoli Sun Chemical Tanker Incident”. Marine Insight, 18 July. Available at http://www.marineinsight.com/misc/marine-safety/the-ievoli-sun-chemical-tanker-incident/. Accessed 2 May 2019.

17.

Nuclear Security Summit. 2016. “Highlights of National Progress Reports”. Available at http://www.nss2016.org/document-center-docs/2016/4/5/highlights-from-national-progress-reports-nuclear-security-summit. Accessed 1 June 2019.

18.

Oxman,

H.B.

1984. “The Regime of Warships Under the United Nations Convention on the Law of the Sea”. Virginia Journal of International Law 24: 809.

19.

Palaio

. 2014. Aλήθɛιɛζ και ψέματα γιατα χημικά τηζ Συρίαζ [Truth and lies about the Syrian chemicals]. Available at http://www.kathimerini.gr/764632/article/epikairothta/kosmos/alh8eies-kai-yemata-gia-ta-xhmika-ths-syrias. Accessed 1 May 2019.

20.

Pellerin,

2014. “75 Percent of Syria Chemical Materials Reported Destroyed”. U.S. DoD News, 11 August. Available at https://www.defense.gov/Explore/News/Article/Article/603046/75-percent-of-syria-chemical-materials-reported-destroyed/.

21.

Rothwell,

and Stephens,

2016The International Law of the Sea. 2nd Revised edition. Oxford: Hart Publishing.

22.

Ruys,

, Angelet,

and Ferro,

(Eds) 2019. The Cambridge Handbook of Immunities and International Law, at 1. Cambridge University Press.

23.

Samiotis,

and Grekos,

2016. “Blue Growth: Is it Really Sustainable? Transport and Destruction of Syrian Chemical Weapons on the Mediterranean Sea”. Environmental Policy and Law46(3/4): 253–262.

24.

Sands,

, Peel,

, Fabra,

and MacKenzie,

2018. Principles of International Environmental Law. FOURTH EDITION, at 201. Cambridge University Press.

25.

Saviolakis,

and Pazarzi,

2013 “Transportation of Energy Resources in the Middle East and Central Asia”. International Journal of Energy Economics and Policy 3 (Special Issue for International Conference on Energy Economics and Policy, 16–18 May 2013, Nevsehir, Turkey): 127–139, at 133.

26.

Smith, M.E. 2017. International Security: Politics, Policy, Prospects. 2nd edition. London: Red Globe Press.

27.

Treaty on the Non-Proliferation of Nuclear Weapons (NPT). Available at https://www.un.org/disarmament/wmd/nuclear/npt/text/.

28.

Trombetta,

M.J.

2008. “Environmental Security and Climate Change: Analysing the Discourse”. Cambridge Review of International Affairs21(4): 585–602, at 592.

29.

Tsioumanis,

2020. “UN Marine Negotiations: The Third Intergovernmental Conference and Future Prospects for the Ocean Negotiations”. Environmental Policy and Law50(3): 201–206.

30.

UN. 2004. “A More Secure World: Our Shared Responsibility. Report of the High-Level Panel on Threats, Challenges and Change”. Available at https://www.un.org/en/events/pastevents/a_more_secure_world.shtml.

31.

UN Convention on the Law of the Sea, Montego Bay, 10 December 1982. Available at https://treaties.un.org/pages/ViewDetailsIII.aspx?src=IND&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en.

32.

Wiese Bockmann,

2019. “Marine insurers monitor Libya as crude exports stall”. Lloyd’s List, 8 April. Available at https://lloydslist.maritimeintelligence.informa.com/LL1126984/Marine-insurers-monitor-Libya-as-crude-exports-stall. Accessed 25 May 2019.