Pollution and Flag State Liability & BILOS 2021 ITLOS Moot Court
JTMS recently conducted an interview with Julia Weston regarding the contents of her article “The Possibility of Litigation Regarding Liability οf Flag States in the Case of Vessel-Based Pollution: Where we Stand in the Law of the Sea,” published in the Winter/Spring 2021 issue of JTMS, as well as the upcoming ITLOS Moot Court Competition organized by the Brazilian Institute for the Law of the Sea (BILOS).
The full text of Julia Weston’s article can be found on the Articles tab of the JTMS homepage. More information on the BILOS 2021 ITLOS Moot Court Competition can be found on the BILOS Homepage. JTMS is very thankful for her time and consideration in giving us this interview.
Why is the issue of flag-state liability in case of vessel-based pollution important? Do you think that there has been an improvement over the years on how international law deals with incidents of vessel-based pollution?
I find the issue important because, ultimately, things tend to improve only when there is a certain level of responsibility to ensure that they work well. In this case, the way that I found was easier to improve while considering the current framework was by using flag-State liability. There have definitely been improvements in how International Law deals with these incidents, definitely, with a greater mobilization after major incidents.
What do you think is the most significant challenge in order for flag state liability for vessel-based pollution to be established?
The most significant challenge, in my view, is probably the way that international law is structured. Flag States are to have jurisdiction over their vessels, yet they are to start investigations themselves, and even when notified about violations committed onboard ships, they are the ultimate ones to define whether an investigation will be launched. This is not an easy challenge to overcome, as it is systemic, in a way.
Do you think that there could be a solution to the problem that has arisen with the “flags of convenience”?
There have been significant efforts from Panama, for instance, in terms of signing relevant treaties regarding human rights and the environment. Perhaps further incentivizing so-called flags of convenience to join in relevant treaties, or judicializing the issue as I suggest in my paper, could be solutions to further address this issue.
There is some doubt on whether the general duty to preserve the marine environment embodied in Article 192 of UNCLOS has led to concrete action. What happens with those few States that are not UNCLOS parties, and thus state responsibility cannot be established because no specific obligation was breached by the State? Can international environmental law effectively cover the gap?
This is a good question. Much of international environmental law is already arguably customary law, although article 192 is, indeed, of contested applicability. However, as the world moves towards an emphasis on the environment as a whole, perhaps international environmental law will be increasingly capable of filling this gap. If we are to believe that article 192 has effectively entered customary international law, then things become, naturally, much easier.
ITLOS Moot Court:
BILOS has now launched its third ITLOS Moot Court Competition which will be held online this November. How did this initiative start? Why did the BILOS decide to launch its own competition?
The initiative was one from the BILOS Board Members, seeking to promote further awareness about the Law of the Sea among law students. The idea was to have a Moot Court focused on the International Tribunal for the Law of the Sea, which originally was organized in the same week as the BILOS Congress, in order to best promote awareness about Law of the Sea topics in many different forms. The competition is still held on the same week as the Congress, but it has now moved to an online format after the diverse teams we managed to reach due to the fact that it was held online in 2020.
Why should law students participate in BILOS Moot Court Competition? What will they gain from this experience, and how does it differ from other law of the sea Moot Court Competitions?
Law students should participate in the BILOS Moot Court Competition because it is a good experience to gain exposure to legal argumentation, as well as to current Law of the Sea topics. This shall help their studies and their development as legal professionals.
The BILOS Moot Court Competition has moved to an online means, which means that teams can join from all over the world without having trouble with travel all the way to Brazil. It is also very glad to be able to count with the assistance of many qualified international law professionals to serve as judges for both the memorials and the oral rounds.
The hypothetical case focuses on a marine pollution dispute between a Small Island and Archipelagic State, and its neighbor. It also raises the issue of fishing rights. How did the Organizing Committee decide on the topic of the upcoming Competition? Is the topic based on current developments on the law of the sea?
The hypothetical case has been out since 18 June. The case and topic were the idea of our authors, who have kindly contributed with our Moot Court with a very interesting case. It is indeed based on current developments in the Law of the Sea, especially the situation of Small Island Developing States and the effects of pollution. The idea, as it is the case with all Moot Courts, is bring forward an innovative, complex topic, so that students think of interesting arguments in order to tackle it.
*** Julia Weston is an international lawyer and expert on the Law of the Sea, currently working as an editor and columnist at the Brazilian Institute for the Law of the Sea and having previously worked as an intern for the United Nations Division for Ocean Affairs and the Law of the Sea, and ITLOS. She is one of the coordinators of the upcoming ITLOS Moot Court Competition, which is organized by BILOS.