An environment-focused law that would require pre-declaration or authorisation on the movement of vessels in the the New Caledonia area has been struck down by a Paris-based court1.
A New Caledonia law aimed, among other things, to subject the movement of vessels around the Province of the Loyalty Islands (part of New Caledonia (itself an overseas territory of France)) to some kind of system of declaration or authorisation.
The High Commissioner of the Republic of France in New Caledonia referred the entire environmental code to a local administrative court and sought annulment of the code on the basis that the law passed was beyond the powers of the local authorities to pass.
The local court granted the High Commissioner’s application, but the matter was then referred to the Administrative Court of Appeal in Paris, France.
It appears that the High Commissioner argued that a system of prior authorisation for the movement of vessels in the Province disregarded the UN Convention on the Law of the Sea (UNCLOS) relating to the right of innnocent passage.
Article 17 of UNCLOS declares that “ships of all States… enjoy the right of innocent passage through the territorial sea”. Article 24 of UNCLOS goes on to declare that Coastal States “shall not” hamper the innocent passage of foreign ships through the territorial sea (other than is allowed by UNCLOS) or impose requirements that have the practical effect of denying or impairing the right of innocent passage.
Meanwhile, Article 55 of the French Constitution of 4 October 1958 states2 that duly ratified treaties prevail over the Acts of the [French] Parliament. Article 8 of Ordinance 2016-1687 of 8 December 2016 applies the right of innocent passage to maritime areas under French jurisdiction and provides that the right of innocent passage is government by the Transport Code.
Accordingly, in France, where there is a conflict between duly ratified international law and local legislation then the French courts must refuse to apply legislation that appears to be incompatible with an international treaty.
HELD: the Paris Court ruled that the system of prior authorisation for the movement of vessels must be regarded as hindering the innocent passage of foreign ships in the territorial sea contrary to article 24 of UNCLOS and the New Caledonian law and, to that extent, must be cancelled.
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1. Original French-language text. An English-language summary can be found here.
2. The original French language text reads: “ARTICLE 55: Les traités ou accords régulièrement ratifiés ou approuvés ont, dès leur publication, une autorité supérieure à celle des lois, sous réserve, pour chaque accord ou traité, de son application par l’autre partie“. The English language translation reads: “ARTICLE 55: treaties or agreements duly ratified or approved shall, upon publication, prevail over Acts of Parliament, subject, with respect to each agreement or treaty, to its application by the other party”.
