PLACES OF REFUGE: International Law and the CMI Draft Convention. Eric van Hooydonk, Advocate, Professor of Law, Ghent University and University of Antwerp. Lloyd’s List, London (2010) lvii and 332 pp, plus 127 pp Appendices and 5 pp Index. Hardback £295
The right of a ship in distress to seek shelter is an ancient concept, grounded in concerns for the safety of her crew, but in more recent times the governments of coastal states have asserted an overriding principle to protect the marine environment of the waters under their control. Two cases in particular have caught the public eye: the Castor, a tanker laden with 30,000 tons of gasoline off the coast of Spain in December 2000, and in November 2002 the Prestige, also off the coast of Spain but laden with 77,000 tons of fuel oil. In both cases salvors had been engaged to assist the ships, which were in danger of breaking up, and in both cases access to sheltered waters where the salvors could stabilise the ship’s condition was refused by the coastal state. The Castor was saved, but the Prestige was not.
These cases led to debates in international circles, notably the International Maritime Organisation, the European Union and the Comité Maritime International, which is the international federation of National Maritime Law Associations. Professor van Hooydonck, an eminent Belgian jurist and academic, has been closely involved in all three, and this book contains a comprehensive survey of the subject, drawing on his experience of these debates and on the writings of many legal writers on international law.
Professor van Hooydonck first surveys the historical background, beginning with a citation from Pliny the Younger and including references to all the cases, few in number, where the right of access to a place of refuge has been considered judicially. He then summarises the international instruments leading to the relevant provisions in the United Nations Convention on the Law of the Sea 1982 (“UNCLOS”). He argues forcefully for the existence in customary international law of such a right, albeit qualified by standards of reasonableness, balancing the harm likely to be caused, for example, by the admission of a ship leaking oil or likely to do so, with the harm which will probably be caused to the greater maritime community by refusal of such access.
He is forced to acknowledge that his views on this are not universally shared, and this sets the tone for the book as a whole. For example, his colleague at the University of Ghent, Professor E Somers, sees the rights of the coastal state as the overriding factor. This disputation, grounded in long-standing academic tradition, makes the book all the more readable.
The CMI International Sub-Committee, of which Professor van Hooydonck and this reviewer were members, continued its work on the development of an international instrument on places of refuge notwithstanding a decision in 2002 by the IMO Legal Committee not to put this subject on its work programme, and this work was supported by the CMI Executive Council. At the CMI conference in Athens in October 2008, the text of a draft instrument (Professor van Hooydonck prefers to use the term “draft Convention”) was adopted by the plenary and submitted to the IMO, where it was politely declined.
In the corridors of Brussels, however, it received a more favourable response, which took shape in the 2009 Directive modifying the 2002 Directive on vessel traffic monitoring and information
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