set out in MARPOL, such as surveyors, charterers, ship managers and salvors and, in
some cases, makes no distinction between accidental and deliberate discharges.
49 A
second example is Canada’s Migratory Birds Conservation Act, 2005 amending the
Migratory Birds Convention Act, 1994.
50 It applies in the whole of the EEZ, and
makes it an offence for any person or vessel to “deposit a substance that is harmful to
migratory birds, or permit such a substance to be deposited, in waters or an area
frequented by migratory birds. . .”. While these are general derogations, specific
examples of derogation of the right of innocent passage ensue.
4.2.1 The Canadian Arctic Waters Pollution Prevention Act
Issues related to the extent of coastal State jurisdiction are central to the emerging
legal regime in the Arctic. In this context, the Canadian Arctic Waters Pollution
Prevention Act, 1985 (AWPPA)
51 was regarded as an ambitious piece of legislation
that exceeds the requirements of international law.
52 In 1986 Canada enclosed its
Arctic Archipelago with straight baselines, confirming a claim to the waters within,
including the North West Passage, as internal waters. Consequently, the regime of
passage will be determined by whether or not these are internal waters, and even if
they are found to be internal waters whether it is by virtue of Canada’s “historic
waters” entitlement or merely by virtue of the straight baseline designation of 1986.
Furthermore, the jurisdiction of the AWPPA extended to 100 nautical miles from
the coastline. The regulatory powers under the AWPPA covered design and construction standards, separate waste deposit rules and special powers to create shipping safety control zones, within which more extensive inspection powers applied.
More recently, the jurisdiction of the AWPPA has been expanded even further to
200 nautical miles from the coast. Also, vessel reporting is a mandatory requirement
being applied under NORDREG (the Arctic marine traffic system in Canadian
waters).
53
4.2.2 Western European PSSA
The Western European Particularly Sensitive Sea Area (PSSA) is believed by some,
especially those in the industry, to be an example of a measure originally designed to
49 An industry coalition challenged the Directive in the English High Court of Justice which referred
the case to the European Court of Justice but did not yield a favourable decision (Intertanko and
Others v Secretary of State for Transport, ECJ Case C-308/06, June 3, 2008).
50 Migratory Birds Convention Act, 1994, R.S.C. 1994, c. 22, Assented to 23 June 1994 as amended
by S.C. 2005, c. 23.
51 Arctic Waters Pollution Prevention Act, R.S.C. 1985 c. A-12.
52 Breide and Saunders (2008).
53 Government of Canada, Prime Minister’s Office (2008).
236
A. Hebbar
some cases, makes no distinction between accidental and deliberate discharges.
49 A
second example is Canada’s Migratory Birds Conservation Act, 2005 amending the
Migratory Birds Convention Act, 1994.
50 It applies in the whole of the EEZ, and
makes it an offence for any person or vessel to “deposit a substance that is harmful to
migratory birds, or permit such a substance to be deposited, in waters or an area
frequented by migratory birds. . .”. While these are general derogations, specific
examples of derogation of the right of innocent passage ensue.
4.2.1 The Canadian Arctic Waters Pollution Prevention Act
Issues related to the extent of coastal State jurisdiction are central to the emerging
legal regime in the Arctic. In this context, the Canadian Arctic Waters Pollution
Prevention Act, 1985 (AWPPA)
51 was regarded as an ambitious piece of legislation
that exceeds the requirements of international law.
52 In 1986 Canada enclosed its
Arctic Archipelago with straight baselines, confirming a claim to the waters within,
including the North West Passage, as internal waters. Consequently, the regime of
passage will be determined by whether or not these are internal waters, and even if
they are found to be internal waters whether it is by virtue of Canada’s “historic
waters” entitlement or merely by virtue of the straight baseline designation of 1986.
Furthermore, the jurisdiction of the AWPPA extended to 100 nautical miles from
the coastline. The regulatory powers under the AWPPA covered design and construction standards, separate waste deposit rules and special powers to create shipping safety control zones, within which more extensive inspection powers applied.
More recently, the jurisdiction of the AWPPA has been expanded even further to
200 nautical miles from the coast. Also, vessel reporting is a mandatory requirement
being applied under NORDREG (the Arctic marine traffic system in Canadian
waters).
53
4.2.2 Western European PSSA
The Western European Particularly Sensitive Sea Area (PSSA) is believed by some,
especially those in the industry, to be an example of a measure originally designed to
49 An industry coalition challenged the Directive in the English High Court of Justice which referred
the case to the European Court of Justice but did not yield a favourable decision (Intertanko and
Others v Secretary of State for Transport, ECJ Case C-308/06, June 3, 2008).
50 Migratory Birds Convention Act, 1994, R.S.C. 1994, c. 22, Assented to 23 June 1994 as amended
by S.C. 2005, c. 23.
51 Arctic Waters Pollution Prevention Act, R.S.C. 1985 c. A-12.
52 Breide and Saunders (2008).
53 Government of Canada, Prime Minister’s Office (2008).
236
A. Hebbar