74. 1174–5 the Court found that “a state law regulating extraterritorial conduct in the high seas immediately adjacent to the state's territorial waters satisfying the well-established effects test should generally be sustained.”, J. Hammitt, “Who's Afraid of the Supremacy Clause? 165. 147: “the fact that the calculation of emission allowances to be surrendered is based on the whole flight in each case does not bestow upon Directive 2008/101 any extraterritorial effect.”, 179. 319–20; M. Shaw, International Law (6th ed.) 51. 207. Mensah (Martinus Nijhoff, 2007), pp. 244–45, comments: “the more vital the interest and the more the exercise of jurisdiction is directly related to protecting or promoting it, the more likely the international community will respect it as appropriate.”. 11.
Van Dyke, “The Urgency of Reducing Air Pollution From Global Shipping,” in A. Chircop et al.
Ringbom (2011), supra note 49, p. 632, does not preclude that the effects doctrine might be relevant but stresses the difficulties in assessing the impact with respect to scientific evidence.
23. 103. 3094/86 of 7 October 1986 Laying Down Certain Technical Measures for the Conservation of Fishery Resources, Official Journal L288/1 (11.10.86). The path forward is built on trust, cooperation and optimism. 93. Delft, “Technical Support for European Action to Reducing Greenhouse Gas Emissions From International Maritime Transport” (report 2009), at www.cedelft.eu, at 16, argues that the territorial principle can justify such measures due to the presence of the vessel in port. 1484, Section D. 99. © 2020 Global Commons Alliance. Case concerning the Gabcikovo-Nagymaros Project (Hungary v Slovakia), [1997] I.C.J. McDorman, supra note 1, p. 321, argues that “under existing law, where the discharge violation affects the port state, enforcement action arguably could be taken.” Sands and Peel, supra note 4, p. 195 comment: “where activities carried out in one state have, or are likely to have, effects in another state, recourse might be had to the objective application of the territorial principle otherwise known as the ‘effects’ doctrine’,” however they point out that the doctrine is of doubtful consistency and there is controversy regarding its application. 2–22; V. Tasikas, “The regime of maritime port access: a relook at contemporary international land US law,” 5 Lloyds Maritime Law Journal (2007), p. 44; Churchill and Lowe, supra note 39, p. 62; and Ringbom (2008), supra note 49, pp.
Ibid., 16 USC, 1858–61. 28. 128. Fish Stocks Agreement, supra note 82, article 18(3)(g) (iii). See also Oppenheim, supra note 13, p. 457: “much of the law relating to jurisdiction has developed through the decisions of national courts applying the laws of their own states.”, 22. 7 of preamble of this regulation states: “In line with the definition of IUU fishing, the scope of this Regulation should extend to fishing activities carried out on the high seas.” The EU adopted the scope and nature of IUU fishing as set out in the FAO IPOA-IUU, supra note 82.
Imagine how many processes and systems are in the oceans, and not only that, they are home of uncountable species known and unknown. 133. 186. deBaere and Ryngaert, supra note 143, p. 403. Churchill and A.V. 403 (2). P. Sands and J. Peel, Principles of International Environmental Law (3rd ed.) Bowett, supra note 14, p. 7.
R. Jennings and A. Watts (Longman, 1996), Vol. Taylor, “The Content of the Rule Against Abuse of Rights in International Law,” 46 British Yearbook of International Law (1972–3), p. 331. Ryngaert, supra note 10, p. 76, states that “international law seems … to have satisfied itself with requiring that either the criminal act or its effects have taken place within a state's territory for the state to legitimately exercise territorial jurisdiction irrespective of the municipal characterisation of the act or the effects (in practice usually the effects) as a constituent element of the offence.” G.F. Hess, “The Trail Smelter, the Columbia River, and the Extraterritorial Application of CERCLA,” 18 Georgetown International Environmental Law Review (2005), p. 25, refers to extraterritorial application when “the potentially responsible party … is not a US citizen, the conduct does not take place in the US, or the effects do not occur in the US” signifying that when the effects are felt in the territory this is not extraterritorial application of the laws. See, for example, Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on Port State Control, Official Journal L131/57 (28.5.2009) (related to compliance of ships with international standards for safety, pollution prevention and on-board living and working conditions and taking a broad view regarding unseaworthiness), Article 19(2) Rectification and Detention. W. Meng, Extraterritoriale Jurisdiktion im öffentlichen Wirtschaftsrecht (Springer, 1994), p. 86, as translated and quoted in L. Bartels, “Article XX of GATT and the Problem of Extraterritorial Jurisdiction: The Case of Trade Measures for the Protection of Human Rights,” 36 Journal of World Trade (2002), pp. 129. SS Lotus, P.C.I.J. ), Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Th.A. In this respect, the role of the port state, as a first point of contact for industries engaged in activities harmful to the global commons (i.e., fishing and shipping), is increasingly important. Reports 7, separate opinion of Vice-President Weeramantry, p. 118. 79. 1945) at 443 and U.S. Third Restatement, supra note 14, para.
295–6. They stressed that the extraterritorial application of the directive contravened territorial jurisdiction and expanded legislative jurisdiction on the high seas (paras. On the controversial nature and application of universal jurisdiction, see C. Ryngaert, supra note 10, pp. L. de La Fayette, “Access to Ports in International Law,” 11 International Journal of Marine and Coastal Law (1996), pp.
43–68. See ibid., article 22 (iv) (b) (ii) and NAFO Conservation and Enforcement Measures (2014), supra note 109, article 55. Cottier et al., supra note 9, p. 314 et seq. ), The Law of the Sea: Progress and Prospects (Oxford University Press, 2006), p. 209; T.L. Buxbaum, “Conflict of Economic Laws: From Sovereignty to Substance,” 42 Virginia Journal of International Law (2002), p. 956, notes that: The term substantivism … is used to describe a choice-of-law methodology whose goal is to select the better law in any given case. For treaties providing for universal jurisdiction in relation to the principle of aut dedere aut judicare, see the Convention For the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971), U.N.T.S. Buxbaum, “Territory, territoriality and the resolution of jurisdictional conflict,” 57 American Journal of Comparative Law (2009), p. 631, and P. Schiff Berman, “Globalisation of jurisdiction,” 151 University of Pennsylvania Law Review (2002), p. 490 ff. The CJEU found in Åhlström Osakeyhtiö and others v Commission (joined cases “Wood pulp”) Judgment, 27 September 1988, European Court Reports 1988, paras. PMSA v Goldstene, supra note 127, pp. Register to receive personalised research and resources by email, Port-State Jurisdiction, Extraterritoriality, and the Protection of Global Commons, Lancaster University Law School, Lancaster, United Kingdom, /doi/full/10.1080/00908320.2016.1159083?needAccess=true, www.repository.law.indiana.edu/facpub/887, ro.uow.edu.au/cgi/viewcontent.cgi?article=2261&context=lhapapers, www.fao.org/fileadmin/user_upload/legal/docs/lpo7.pdf, ec.europa.eu/jrc/sites/default/files/jrc_reference_report_2010_11_ships_emissions.pdf, www.airlinecouncil.ca/pdf/EU%20ETS%20Legal%20Challenge%20IATA-NACC%20Brief_FINAL%20(21%20Oct%202010, www.un.org/en/ga/sixth/69/universal_jurisdiction.shtml, www.un.org/ga/search/view_doc.asp?symbol=A/68/113, www.nccr-trade.org/publication/the-emerging-principle-of-common-concern, Medicine, Dentistry, Nursing & Allied Health. 8. ATA Case, supra note 169, para. IMO, Report of the Marine Environment Protection Committee on its Sixty-First Session, MEPC 61/24, 6 October 2010, Annex 15, “Statement by the Delegation of the United States” on the IMO website, at www.imo.org. 246. Lowe and Staker supra note 17, p. 315; Shaw, supra note 17, p. 652; R.Y.
46. 220–222. 1170–1, 1175. 113.
J. Scott, “Extraterritoriality and Territorial Extension in EU law,” 62 American Journal of Comparative Law (2013), p. 89. Pakootas v Teck Cominco Metals, Ltd, 452 F.3d 1066 (9th Cir. 6. For an overview of these cases, see PMSA v Goldstene, 639 F.3d 1154, pp. WTO Shrimp/Turtle Case, supra note 247. Mulligan, “The Triumph of Politics: Reflections on the Judgment of the Court of Justice of the EU Validating the Inclusion of non-EU Airlines in the Emissions Trading Scheme,” Air and Space Law (2012), pp. 28. Jennings, “Extraterritorial jurisdiction and the US Antitrust laws,” 33 British Yearbook of International Law (1957), p. 152, argues that “it is reasonable to say ... that international law will permit a state to exercise extraterritorial jurisdiction provided that State's legitimate interests (legitimate that is to say by tests accepted in the common practice of states) are involved.” Oliver, supra note 148, pp. 108. 55. At pp. 53. One of the main questions was to what extent the specific authority of the state was pre-empted by the Submerged Land Act. Z. Oya Özcayir, Port State Control (2nd ed.) See, for example, Northwest Atlantic Fisheries Organization (NAFO), the 2015 NAFO Conservation and Enforcement Measures (2014), Chapter VII, article 43(2) and 45, available on the NAFO website, at www.nafo.int.
The consequences of this are important but are often ignored.
Molenaar, “Port State Jurisdiction,” Max Planck Encyclopaedia, supra note 5, paras. Also at para. Nonetheless, it signals that states’ freedom of action may be subject to limits even where other states’ sovereign rights are not affected in the direct transboundary sense envisaged by the no harm principle.
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R.Y. ), Oxford Handbook of International Environmental Law (Oxford University Press, 2007), pp. See also Port State Measures Agreement, supra note 101, article 9. See T. Bauerle et al., Integration of Marine Transport into the European Emissions Trading System (Umwelt Bundesant, 2010), p. 85, and C. Hermeling et al., “Sailing into a Dilemma: An Economic and Legal Analysis of an EU Trading Scheme for Maritime Emissions,” ZEW Discussion Paper No. See, for example, Directive 2002/59/EC of 27 June 2002, supra note 84, article 13(2), which requires that vessels notify EU ports of any dangerous or polluting goods on board before arrival at the latest upon departure from the loading port. Common law countries argue that the port state has jurisdiction in such cases but chooses not to exercise it as a matter of comity.