Jur.fak. - Spesialfag

HJEMMEEKSAMEN I SPESIALFAGET MILJØ OG HAVRETT
HOME EXAMINATION IN LAW OF THE SEA AND ENVIRONMENTAL LAW
JUR –3603
Vår 2005 /Spring 2005

Uke 10 / Week 15 (april / April 11 - 15)

En papirkopi av bevarelsen leveres i studentekspedisjonen innen fredag 15 april kl 15.00. Ett eksemplar sendes på e-post til følgende adresse: inger.lise.strandheim@jus.uit.no
Den foreløpige sensur (bestått /ikke bestått) faller tirsdag 10 mai kl 14.00, og kunngjøres på fakultetets oppslagstavle utenfor ekspedisjonen.
Muntlig eksamen for de kandidater som har bestått den skriftlige del finner sted torsdag 12 mai på rom 4404. Den starter kl 08.30. Den muntlige eksamen varer i ca 45 minutter.
Kandidatene får den endelige karakteren opplyst etter at de muntlige prøve er avsluttet.

A paper copy of the answer shall be submitted by 15 April at 15.00h at the latest to the reception for students. A copy of the paper shall be sent by email to the following address: inger.lise.strandheim@jus.uit.no
The preliminary examination results (passed/failed) will be published on 10 May at 1400h at the Faculty information board outside the reception for students.
Oral examination of candidates who passed the written examination will take place on 12 May at the Faculty in room 4404. It starts at 08.30am. The oral examination lasts for approximately 45 minutes.
The final examination result will be published after the oral examinations are finished.

1. Marine pollution
Martha, a merchant ship registered in State A, while navigating in the territorial sea of State B, discharges garbage contrary to the provisions of Annex V of MARPOL and contrary to the legislation of State B. The legislation makes it an offence for any ship, while in its territorial sea or EEZ, to discharge any polluting matter into the sea. State B’s legislation also requires all such ships to be fitted with equipment which will process garbage in a form suitable for easy disposal in port. Martha is not fitted with this equipment.

a) Advise State B, which is a party to the UN Convention on the Law of the Sea but not to MARPOL, whether it may arrest Martha and in respect of what offences it may prosecute it.
b) How would your answer differ if Martha was navigating in the EEZ?
c) Advise State A what legislative and enforcement obligations are incumbent upon it in respect of Martha as regards garbage disposal.
d) If neither State A nor State B takes any enforcement action, can any other State take enforcement action?

2. High seas fisheries
A regional fisheries management organisation (RFO) has adopted a moratorium or a zero total allowable catch (TAC) for a straddling fish stock occurring on the high seas in a part of its regulatory area. The decision was based on scientific advice and information provided by the scientific committee of the RFO. Results of scientific surveys indicated that the stock was below sustainable levels. The scientific committee recommended that the TAC was set at zero or at a minimum to rebuild the stock.

State A, one of the Member States, voted against the decision. It argued it was premature. The available scientific evidence was uncertain and thus did not justify such radical measures. Pending more information a limited fishery could continue, argued State A. It used its right according to the convention establishing the RFO to object to the decision and was not legally bound by the moratorium. Subsequently, State A unilaterally set a quota on 10.000 tonnes for its fishermen in this area of the high seas.

The other Member States criticised the decision of State A and argued that by allowing the fishery, the state of the stock would deteriorate further. Even if State A was not bound by the moratorium, the State had other international legal obligations restricting its freedom to set unilateral quotas. They referred to the State’s obligations under the 1982 UN Law of the Sea, to which it was a party. They also argued that the legal effect of the objecting procedure had been limited by the provisions of 1995 Agreement on straddling fish stocks and highly migratory fish stocks on flag State duties, ratified by State A in 2000. State A was therefore not entitled to set this quota.

State B, which was not a Member of the RFO had permitted its vessel to fish on the same stock on the high seas. When asked by RFO Member States to stop its vessels fishing for the stock State B declined and referred to that it was not bound by a decision taken by an international governmental organisation of which it was not a Member. The Member States responded that this fact did not exempt State B from obligations of conservation and cooperation under the law of the sea.

a) Advice the RFO Member States on the legal status of scientific advice according to the UN Convention on the Law of the Sea and the 1995 Agreement on straddling fish stocks and highly migratory fish stocks. Are the Member States bound by the advice of the scientific committee, and is scientific uncertainty a relevant argument for post¬poning adoption of new and stricter conservation measures?

b) Further, advice the RFO Member States on the possible legal grounds for the claim that the objection procedure of the RFO has been limited by the 1995 Agreement (inter alia its article 18). Will State A be obliged to refrain from setting its own quota? Evaluate the importance of such a restriction on the effective management of high seas fisheries.

Present and evaluate the conservation and cooperation obligations of non-Member States in respect of a fishery regulated by a RFO on the high seas. Does it have any relevance whether they are parties to the UN Convention on the Law of the Sea and/or the 1995 Agreement on straddling

Tromsø 04.04.05

Tore Henriksen
fagansvarlig