International Tribunal for the Law of the Sea (Immunities and Privileges) Order 1995

HL Deb 25 January 1996 vol 568 cc1178-88

7.18 p.m.

Viscount Goschen rose to move, That the draft order laid before the House on 15th November be approved [1st Report from the Joint Committee].

The noble Viscount said: My Lords, I beg to move that the International Tribunal for the Law of the Sea (Immunities and Privileges) Order 1995 be approved. In moving that Motion it may be for the convenience of the House if I also speak to the International Sea-Bed Authority (Immunities and Privileges) Order 1995 and to the Merchant Shipping (Prevention of Pollution) (Law of the Sea Convention) Order 1995.

These three orders will enable the Government to implement the provisions of the 1982 United Nations Convention on the Law of the Sea, with a view to the United Kingdom's forthcoming accession to the Convention.

The convention was the product of the third United Nations Conference on the Law of the Sea, which was held over ten years between 1973 and 1982. The aim of the convention was to establish a comprehensive legal regime for the oceans. In this it is largely successful and is beneficial to United Kingdom interests. It confirms important rights, such as the freedom of navigation and overflight. It provides for a package of maritime limits: notably a maximum of 12 miles for the territorial sea and 200 miles for the exclusive economic zone, within which coastal states have jurisdiction for the conservation of natural resources and the protection and preservation of the marine environment. These maximum limits are generally accepted and have caused some states to withdraw more extravagant and unjustified claims. The convention also contains extensive provisions on the peaceful settlement of maritime disputes.

The Merchant Shipping (Prevention of Pollution)(Law of the Sea Convention) Order is one element of the package of 18 tough new measures to reduce illegal discharges of wastes from ships, which was launched yesterday. The package includes measures to tighten the regulations, to improve enforcement of the regulations, to improve port waste reception facilities and to improve awareness of the problem among shipowners.

I am pleased to say that this new initiative, which was achieved following lengthy consultations with all interested parties—including ports, users, waste companies and environmental groups—will put the United Kingdom at the forefront of international action on the discharge of waste from ships. A number of measures flow as a direct result from the report of the noble and learned Lord, Lord Donaldson, Safer Ships, Cleaner Seas; some go beyond the recommendations encapsulated in that report.

The Merchant Shipping (Prevention of Pollution)(Law of the Sea Convention) Order will help us to enforce the regulations on marine pollution from ships. Currently, we are only able to bring prosecutions for pollution offences which occur in our territorial waters. This is not a satisfactory state of affairs, as we are sometimes able to identify ships which pollute waters just outside the 12-mile limit. At present, our only recourse in such cases is to report the incident to the ship's flag state. Experience has demonstrated, however, that that is rarely an effective means of bringing sanctions against polluters.

This order will permit the Department of Transport to make regulations which will greatly increase our ability to prosecute polluters. As proposed by the inquiry of the noble and learned Lord, Lord Donaldson, we will take powers to the maximum extent consistent with international law. That will allow us to bring prosecutions for illegal discharges which occur up to 200 miles from the UK coastline. We will also introduce provisions to enhance our co-operation with neighbouring states by making it possible for UK courts to prosecute ships which have polluted other states' waters.

The other two draft orders confer privileges and immunities on two new international institutions established by the Law of the Sea Convention: the International Sea-Bed Authority and the International Tribunal for the Law of the Sea. Privileges and immunities need to be conferred in order for the Government to meet their international obligations under the convention.

In relation to the International Sea-Bed Authority, the privileges and immunities are to be similar to those provided for in the 1947 Convention on the Privileges and Immunities of the Specialised Agencies of the United Nations. As regards the International Tribunal for the Law of the Sea, they are similar to those conferred on the International Court of Justice.

The authority is located in Jamaica and the tribunal in Hamburg. In practice, therefore, there are only likely to be claims for refunds of VAT on goods and services purchased in the UK for the official purposes of the organisations. The privileges and immunities conferred by the orders are, of course, granted in accordance with the limitations imposed by the International Organisation Act 1968, as amended, under which the orders are made. I commend the order to the House.

Moved, That the draft order laid before the House on 15th November be approved [1st Report from the Joint Committed].—(Viscount Goschen).

Lord Clinton-Davis

My Lords, I thank the Minister for speaking on these three draft instruments in the way that he has, particularly as the one which falls within his own remit was hardly dealt with by the Foreign Office Minister in another place. That is regrettable and there are therefore a number of questions I wish to put to the Minister in that regard. I gave him notice of the questions. This is not a controversial party political matter; it is a matter in which a number of bodies outside the House are interested.

I wish to say at the outset that the Opposition support all three statutory instruments. We believe that they arc important and I welcome many of the measures that the Minister announced yesterday. I have not had time to digest them all but they represent an important contribution to the defence of the maritime environment. Again, I want to put a number of questions to the Minister in that regard, of which I have not given him notice because it is only within the past one-and-a-half hours that I have managed to obtain copies of the documents concerned.

In addressing the first two statutory instruments, which are within the remit of the Foreign and Commonwealth Office, we particularly welcome what has happened. I should perhaps declare an interest at this stage in covering all three matters, in that I am chairman of the Advisory Committee on the Protection of the Sea.

Viscount Goschen

Hear, hear!

Lord Clinton-Davis

My Lords, at last I have done something which meets with the approbation of the Minister. I am glad about that.

That body, in 1952 when few people were even talking about the "environment", was established by my noble friend Lord Callaghan, who showed a substantial measure of prescience in so doing. Since then it has taken a keen interest in these policies. It is over 13 years since the final text of the Law of the Sea Convention was accepted at the Plenipotentiary Conference in Jamaica in 1982. The United Kingdom then joined the United States and other G7 states in not signing because of problems it thought it had with Part XI in relation to deep seabed mining. But 155 states signed within the first year and further negotiations ensued over a long period of time. It was not until 1994 that the G7 countries felt that their objections to Part XI had been satisfactorily resolved.

The statutory instruments are designed to ensure that the United Kingdom can meet the obligations of the convention and to take advantage also of its opportunities. However, will the Minister confirm that many of its provisions are part of customary international law and are therefore already binding on the United Kingdom and other states—for example, rights in territorial waters; the 200-mile fishery zones; the rights of transit passage through straits such as the Dover Strait and rights over the Continental Shelf?

Ratification of the convention by the United Kingdom remains important because it allows this country to participate in the new institutions, as the Minister outlined, established by the treaty and to take advantage of the new rights; for example, to control pollution in the 200-mile exclusive economic zone.

In our view the instruments cover key issues, including inter alia privileges and immunities to institutions established by the convention. The Minister dealt with the International Sea-Bed Authority and the International Tribunal for the Law of the Sea. I sincerely hope and believe that the new authority will not be another high-spending international institution, and that the voting system has been adjusted to ensure that the interests of developed states are well represented in the decision-making process.

I believe the tribunal is to be based in Hamburg and will represent the flagship of the new significant dispute settlement procedures based on the convention. Perhaps I can say in parenthesis that I wish Mr. David Anderson, of the Foreign and Commonwealth Office, who is to be the United Kingdom nominee for the tribunal, every success in the challenging role that he will face.

I turn from that to the third statutory instrument, which again we welcome. It will enable the United Kingdom to take advantage of Part XII of the convention, which grants more extensive powers to coastal states to exercise control over pollution from ships within the 200-mile zone. Is it right that the United Kingdom does not propose to claim formally a 200-mile exclusive economic zone but will be designating an area of the sea above its Continental Shelf as an area in which pollution control powers may be exercised? If that is right, would the Minister be kind enough to explain the reasons for taking that course?

Having said that, it may be a little academic because I recognise that the really important issue is that the United Kingdom will now claim the powers to regulate vessel-source pollution in waters to be designated but which presumably will be up to 200 miles from the coast or the agreed boundaries with our neighbours, since the Secretary of State will be designating the geographical area within which the United Kingdom will exercise these powers and by which it will be able to apprehend, inspect and punish violations of the convention in those areas. Can the Minister inform the House when the United Kingdom proposes to ratify the convention, which is justifiably called (because of its general application and its fundamental impact on all matters concerning the oceans), a Constitution for the Oceans? It would be helpful if the Minister could throw some light on that because it is important.

I turn now to a number of issues germane to maritime pollution. Will the Minister confirm that, although vessel-based marine pollution remains a significant threat and the Government are determined to do a great deal about it, a far larger threat to the marine environment is represented by land-based sources of marine pollution, accounting for something like 85 to 90 per cent. of all marine pollution? That is not generally recognised by the man or woman in the street who thinks that such pollution comes entirely from ships at sea, but that is a wrong perception.

Does the Minister agree that an obligation arises from Agenda 21 of Chapter 17 of the Rio Agreement, as well as from Chapter 28 which deals with the role of local authorities and which is known as "Local Agenda 21", for signatories to take effective steps to deal with those issues? Is the Minister aware that the Advisory Committee on the Protection of the Sea has played a significant part in seeking to marshal a coherent contribution from local authorities internationally in that regard? What are the Government doing in positive terms to make a meaningful contribution to reinforce those efforts from an NGO to which many local authorities have responded well?

Does the Minister agree that the real importance of this draft statutory instrument is that it must be effectively enforced as well as implemented? MARPOL 1973 was designed—and its objective remains—to achieve: the complete elimination of international pollution of the marine environment by oil and other harmful substances"? The United Kingdom has implemented the MARPOL obligations by the Merchant Shipping (Operations Book) Regulations 1988, but how well is that being enforced? Are threats posed to its proper enforcement as a result of cuts in the Coastguard Agency and in the Marine Safety Agency? Can the Minister safely assert tonight that there will be no compromise with safety as a result of those cuts? I am sure that he will aver that that is the case, but a mere assertion is not necessarily the whole story.

The Minister must justify the position that the Government are taking because, on the face of it, a serious review of the coastguard service could result, as I understand it, in a loss of something like 10 to 15 station officers around the United Kingdom, with 380 auxiliary coastguards being replaced by people known as "watch assistants". What will be the difference in the effectiveness of the roles to be performed by the watch assistants as against the auxiliary coastguards? How well trained and skilled will they be? Would it not be much more desirable, especially from the point of view of those who are seeking to deal with a polluting ship or seeking to help somebody in difficulty, to have a more highly skilled and trained force available? What impact will there be on safety? I have to ask the Minister whether it is not really all about saving money so that the Department of Transport can makes its contribution to tax cuts before the next election. In that context, my last question is: can the Minister say something about the areas most likely to be affected by the changes?

I should like to say a word or two about the Marine Safety Agency. Further pressure will be imposed on the MSA to reduce its staff at a time when it will be taking on new responsibilities. They are set out in some of the 18 new measures to combat marine pollution from ships which the Minister announced yesterday. The MSA is already under pressure and is delegating more than ever to classification societies. There is a debilitation of its surveying staff and I believe that, as a result, there has been a reduction in this country's influence not merely at present, but more importantly for the future, with regard to important maritime councils. That will be the inevitable effect of a lack of surveyors.

Can the Minister say something about aerial surveillance? There is reason to suppose that that is not being enforced as effectively as one would wish even within the 12-mile limit, so how is it likely to be effective within the new 200-mile limit?

I turn now to fines. I welcome very much what the Minister said. Indeed, I began to prepare my notes before seeing what the Minister was going to say, which is pertinent to my own thinking. The fines that applied previously were hopelessly inadequate. Therefore, the suggestion that is now emerging from the Department of Transport is very much to be welcomed and I congratulate the Minister on it. Like his officials, he has realised that much more draconian penalties are required if there is to be a suitable deterrent.

I also very much welcome what the Minister said about waste reception facilities. The Royal Society for the Protection of Birds was particularly concerned about that and drew my attention to the serious pollution which occurred last September off Flamborough Head and to another incident on 27th December when a very large number of oiled birds were found. The RSPB may well have drawn the attention of the noble Baroness, Lady Thomas, to that also. The RSPB has asked that regional waste auditing systems should be put in place to supplement aerial surveillance. That system already operates in the Netherlands. I may be wrong but I have not yet seen any reference to that, so the Minister may want to say something about it. I must ask: if it is working well there, why not apply the same system here?

I turn now to some of the other points raised in the Minister's press release and in the document that was published yesterday. The Minister referred to the waste management plans which are designed to improve port waste reception facilities and to encourage shipowners to use them instead of dumping their waste at sea. That is a commendable suggestion. However, following consultation, the Minister is proposing to introduce that on a voluntary basis, reserving the right to introduce a mandatory requirement if that breaks down. Given that we are not talking simply about British flagged ships, but about flags of convenience which show little regard for voluntary systems, why should the Minister believe that a voluntary system is likely to have any real effect? I repeat that it is not only British ships which use British ports, but those of many other nations.

The Minister said in the statement that parliamentary approval for the plan would be sought at the earliest opportunity if it was necessary to make it a mandatory requirement. I believe that it is necessary to introduce a mandatory requirement in any case, but can the Minister say anything about the bid that he will make in the next Session of Parliament—if we have one, which is a moot point? We would wish to pursue that proposal when we take office after the next election.

The Minister spoke about the scale of charges. It is a difficult question, as I recognise. Can he say what scale of charges he has in mind? Will the ports he able to discharge those expenses? What consultation is going on within the EU? I doubt very much whether we can expect to make rapid progress within the IMO, but perhaps we can hope for some more purposive efforts to be made within the EU.

Is there any reason to suppose that mandatory requirements in relation to the regime for waste disposal and the enforcement of marine pollution regulations that the Minister has in mind are being applied elsewhere in the EU at present? Having asked those questions and been a little critical—not very much—I hope that the Minister recognises that we shall use our best endeavours to ensure that the proposals he is putting forward, for which I once again thank him, and which are essentially constructive and helpful, will be a positive support for cleaner seas round the coasts of the UK. I thank the Minister for the way in which he has dealt with the matter.

Baroness Thomas of Walliswood

My Lords, I shall attempt to be brief. I do not have many questions to add to the large number which have already been asked. We welcome the first two draft orders relating to the International Tribunal for the Law of the Sea and the International Sea-Bed Tribunal. I too should like to know how soon we are likely to complete our accession to the convention.

On the merchant shipping order, I understand that in relation to the North Sea lines will he drawn on the map which will divide the North Sea into regulatory zones according to each nation which borders onto the North Sea. I managed to get in touch with one of the Minister's officials. I wonder whether there is going to be a hole in the middle of the North Sea. I hope there will not be. One could imagine a sort of doughnut of orders with a gap in the middle. I hope that that has not happened. I imagine also that there will be a much greater extension of our zone and those of other nations towards the Atlantic Ocean. I see from noble Lords shaking their heads that that will not happen. I shall be interested to hear how it will be done. That comes under Article 2 of the order.

I welcome the fact that we and other nations will be able to exercise greater control over pollution by merchant vessels at sea. I support the power to fine up to £50,000 which I gather to be attached to the order. The important matter which was referred to earlier is the prevention of such merchant vessels from discharging at sea by encouraging them to discharge at ports. However, I am not satisfied with the idea that ports will not be obliged to make a waste disposal plan. A large number of other companies—a port is a large company—are obliged to do so in the context of local government and so on. The disposal of waste is a serious issue, no matter where it is generated. It is becoming more and more serious with every day that passes. So I hope that we can move to a satisfactory regime in that respect.

The one question I have to ask is whether it is presently in the Minister's mind to enable ports which have such regimes to charge vessels entering their ports in such a way that vessels are encouraged, because they have had to pay for the discharge process in any case, to discharge their waste inside and not outside the port.

7.45 p.m.

Viscount Goschen

My Lords, in the end, we have had a rather different discussion from that which occurred in Standing Committee in another place. I welcome that, because we have had an opportunity to discuss a number of important issues surrounding marine pollution and the measures that we are taking to prevent it. I welcome the remarks on that subject made by the noble Lord, Lord Clinton-Davis, and the noble Baroness, Lady Thomas.

The noble Lord asked me a number of questions. He was good enough to let me know in advance the subjects that he wanted to raise in the debate. It might be helpful if I said in the first instance that the package of measures that we have announced will go a great deal of the way towards addressing the problem of pollution from vessels. A number of intricate questions were asked. Some were to do with charging and some to do with the facilities being provided. I hope that I shall be able to deal with them during the course of my remarks.

The important point is that ships should discharge their waste, be it garbage, oily waste, chemicals, noxious substances, or whatever, in properly provided facilities in port rather than chuck them over the side when they are at sea, which is always the easy option. Our enforcement to stop that so-called easy option will be a major plank of the regulations.

The noble Lord raised the issue of whether some of the provisions contained in the convention are not already part of the legal system, agreements or arrangements. The noble Lord is right. Many of the provisions are now customary in international law, but the law is obviously much more certain when agreed internationally by the convention. It confirms a number of those points. I can confirm that the authority will not be a high spending body. It will be of modest size, but we hope very effective.

The noble Lord also asked me whether we would establish the exclusive economic zone. The rights and obligations given by the convention are more important than just the name. As the noble Lord said, we have had a 200-mile fisheries zone since 1976. The Continental Shelf, which extends beyond 200 miles, is regulated by its own Act—the Continental Shelf Act 1964.

The prevention of pollution order will allow the UK to declare jurisdiction over marine pollution out to 200 miles. We are considering the case for the declaration of a zone. I believe that is the answer to the noble Lord's question. We shall, of course, keep that firmly under review. We have already exercised most of the rights covered by that zone.

I was asked by both speakers when we will accede to the convention. We have, of course, already announced our intention to do so. The Government will be in a position to accede to the convention once the remaining necessary procedures have been completed. Most of the legislation to give effect to the convention is already in place. The consideration of these orders this evening is an important part of that process.

The noble Lord inquired about sources of pollution. He welcomed what we are doing to address pollution from vessels, but asked about pollution from land. That is a different and bigger subject, but I happened to glance at a few figures which were incorporated within the report of the noble and learned Lord, Lord Donaldson. I understand that an estimate has been made about the sources of pollution. In that document we see that waterborne land source pollution accounts for about 44 per cent. of the total; airborne land pollution some 33 per cent.; marine transportation some 12 per cent.; marine dumping, which is mainly land source waste, some 10 per cent.; and offshore oil production some 1 per cent. That reinforces the point which the noble Lord made about the degree of the problem from pollution coming from the land. It is an issue that we address on a number of different fronts. That is not to say that the 12 per cent. which comes from marine transportation, according to this particular estimate, is not important. We must do everything we can to address that matter.

The noble Lord asked me about enforcement, which is a key issue. It is vital that we enforce the provisions effectively and a number of tools are available to us. Aerial surveillance is extremely important. It is not the only method but it is one of the tools at our disposal. Masters of ships should be aware that the whole of our sea is regularly patrolled by remote sensing aircraft and we will continue to pursue aerial surveillance. It is an extremely good deterrent and it is also helpful for distinguishing the various vessels which are responsible for the pollution.

The other aspect of enforcement relates to the Marine Safety Agency, a matter that was raised. I believe that the agency has a good record in port state control which is an issue that we pursue according to the provisions of the Paris Memorandum of Understanding. We inspect some 30 per cent. of vessels when our obligation is to inspect some 25 per cent.

The noble Lord, Lord Clinton-Davis, invited me to give an assurance as regards the continuing effectiveness of both the Marine Safety Agency and the Coastguard Agency. Of course I can give that firm assurance. Both agencies do a splendid job and I can give an absolute assurance that they will continue to perform their roles, which are safety and pollution related. The Coastguard has a marine pollution control unit which is a valuable resource in combating pollution.

Lord Clinton-Davis

My Lords, I am grateful to the Minister for giving way. I expected him to give that assurance, but how does it weigh against the serious depletion in the numbers of an already depleted MSA and Coastguard? It is difficult to reconcile the further incursions as regards the number of people employed against the essential criteria of safety, which I know the Minister respects. However, I fear that the Treasury may have a serious effect upon his thinking.

Viscount Goschen

My Lords, we must judge by results, and the results put out by both agencies in terms of the work that they have done over the past years show chat they have been extremely good at their jobs of enforcing safety measures and of co-ordinating search and rescue. In consideration of the budgets, at the top of our list of objectives is to maintain an efficient and proper service for people who go to sea and to prevent pollution. That will continue to be the case and, as requested, I can give an assurance about that.

Both the noble Lord and the noble Baroness raised the issue of fines. It is important that we seek powers to raise the level of fines. The noble Lord, Lord Clinton-Davis, referred to Draconian penalties but believe that a big stick is indeed required in this case because we have often seen some serious incidents. Having the ability to fine people a large sum of money is extremely beneficial in terms of the tools at our disposal.

I turn to the waste management plans. Of the package that was announced, that is the key measure, and where we see planning between all the bodies involved. On a number of occasions insufficient information is available about the facilities provided at each port; for instance, whether there is a facility for receiving oily waste, noxious substances, chemicals or whatever. The consultation that was undertaken with the industries—and I stress the plural—was long and took into account a wide spectrum of organisations. It was considered to be the most effective method and I believe that it will produce major benefits. We have said that initially the plan will be introduced on a voluntary basis and at the earliest opportunity we will be seeking powers to make a mandatory requirement for the facilities and the planning stage that we have spoken about. I referred to the earliest opportunity and we will have to see when that is. There are a number of issues in the merchant shipping world that can perhaps be brought together with legislation. I believe that the issue of waste reception facilities is important and it should have its due priority.

The best way to answer the noble Baroness, Lady Thomas of Walliswood, is to send her a map. It is not easy to describe accurately any potential holes about which she might be concerned. I will write to the noble Baroness with a map. I hope that that will give her confidence hut, if not, perhaps she will be good enough to come back to me.

I hope that I have covered the majority of the points. If I have not, and I will look through the record, I will write to the noble Lords concerned. I believe that the orders we are considering tonight are important. They add a great deal to our ability to govern the sea properly and to ensure the minimum pollution possible. I commend the orders to the House.

On Question, Motion agreed to.