MEASURES FOR PEACE AND JUSTICE
SAFETY OF SHIPPING
term safety of shipping expresses the interest of shipowners,
seafarers, passengers, cargo owners, and insurers as well as
of the community at large that sea transportation by ship
should be as safe as possible, especially for the protection
of the marine environment. Regulations for the safety of
shipping generally have to a greater or lesser degree an
impact on the interests of the parties mentioned above. But as
the Convention deals with public law and order rather than
commercial aspects, its concerns are clearly related to safety
of life at sea and pollution prevention matters on a scale
represented principally by the work of the International
Maritime Organization (IMO), especially as exemplified by the
following list of Conventions:
on the Safety of Life at Sea (SOLAS), 1974;
on Loadlines, 1966;
for Preventing Collision at Sea (COLREG), 1972;
on Safety of Fishing Vessels, 1977;
on Standard of Training, Certification, and Watchkeeping for
on Maritime Search and Rescue, 1979;
for the Prevention of Pollution from Ships (MARPOL), 1973.
central provision of the Convention in this respect requires
flag states to exercise control in administrative, technical,
and social matters to ensure the safety of ships at sea by
taking various measures ranging from construction of the ship
to the training of the crew, (Art.
194, Subpara. 3(b); Art.
211) while other provisions are related only to matters
of navigation such as preventing collisions, (Art. 21,
Subpara. 2(b)) the use of sea lanes and traffic separation
10) and safety measures in respect to artificial
260-262) or when the Convention requires that ships
render assistance to persons in danger at sea and that coastal
states establish a search and rescue system. (Art.
Convention refers only to generally accepted international
regulations, procedure, and practice (Art.
5) or uses similar wording, e.g., (Art.
211, Para. 2)
but never specifically to any established conventions. There
was a two-fold purpose to this method. On the one hand, it
avoids a situation where states parties to the
1982 Convention would be bound to conventions which
they have not ratified, and, on the other hand, opens several
possibilities for interpretation as shown by the following
example: when in regard to general safety of ships the
1982 Convention requires the flag state to “conform
5) there is a certain leeway for freedom of
interpretation, a deliberate measure to lessen the burden on
developing countries trying to establish their own shipping
industry. But it can easily be imagined that a precise
determination would not be simple one way or the other.
PRESERVATION OF THE MARINE ENVIRONMENT
part of the Convention dealing with the global regime for the
prevention of pollution is one of the most detailed in the
entire document, regulating the obligations, responsibilities,
and powers of the states. (Part
XII) There are two possible reasons for this. One is
that pollution prevention law is a new legal field which is
not burdened with older legal concepts; but of greater impact
have undoubtedly been the shocks following disastrous tanker
accidents and the growing concern that unless action is taken
to stop the spread of pollution from vessels and other sources
marine environment will suffer serious and long-term damage. A
major step towards the implementation of global and regional
regulations and measures for the prevention of pollution and
for the general protection and preservation of the marine
environment was taken at the United Nations Conference on the
Human Environment in
. Following this conference, many regional agreements
negotiated under the auspices of the UN Environment Programme
(UNEP) were prepared.
1982 Convention defines pollution (Art.
1(4)) and establishes a general duty to protect the
marine environment and the measures to be taken, (Art. 192;
194) and outlines methods of co-operation, including
monitoring and technical assistance. (Art.
respect to various sources of pollution, the Convention
adheres closely to the policy of legislation, followed by
enforcement. The pollution regulations can be divided into two
parts: (a) pollution from the sources “land-based”,
209) atmosphere, (Art.
212) and all kinds of dumping, (Art.
215) and (b) pollution from vessels, except warships
and other governmental vessels in non-commercial service (Art.
236). Pollution matters in the second case are separate
from the other sources in that provisions are implemented
supplementary to the basic concept of legislation and
enforcement in order to balance the interests between the flag
state and the coastal state with respect to their jurisdiction.
legislation provisions display the typical Convention approach
in requiring the responsible states to adopt international
regulations and standards, varying its requirements from “taking
into account” (atmospheric (Art.
1) and land-based (Art.
1) sources) to “no less effective”
6) and “shall at least have the same effect” (for
vessels) (Art. 211,
2)). There are already conventions in force for the
prevention of pollution by dumping and vessels, which can
serve as guidelines for what is meant by “global rules and
to prevent dumping. (Art.
6) Where vessels are concerned, the provisions are
quite precise, as reference is made to “generally accepted
international rules and regulations established through the
competent international organizations or general diplomatic
2) The emphasis should be placed on “competent
organization,” in this case the International Maritime
Organization (IMO), which adopted the
for the Prevention of Pollution from Ships (MARPOL),
1973, is also responsible for handling secretarial
duties of the
on the Prevention of Marine Pollution by Dumping,
has issued many recommendations and codes directly or
indirectly concerned with vessel pollution matters, e.g.,
Maritime Dangerous Goods Code (IMDG),
for the Construction and Equipment of
Offshore Drilling Units (MODU), and
of Safety for Nuclear Merchant Ships.
are no corresponding international agreements for prevention
of pollution from land-based sources, aircraft, or sea-bed
activities. Regulations to control pollution resulting from
deep sea mining
adopted by the Sea-Bed Authority. (Art.
1, Subpara. 1(b)(xii)) In cases of pollution from other
seabed activities, (Art.
208) from the atmosphere, or from land-based sources,
the states are to establish global or regional regulations.
vessels are concerned, responsibility for national legislation
and enforcement depend on two states: the flag state and the
coastal state. Whereas the coastal state has little
manoeuvring room for enacting legislation, it can exercise a
right to enforce anti-pollution laws to quite some degree. By
and large, legislation by the coastal state has to reflect
international rules. (Art.
21, Subpara. 1(f); Art.
234) The right of a coastal state to enforce such laws
by means of investigations, inspections, proceedings, and
detention is dependent on the location of the incident and
degree of pollution and the location of the vessel. (Art.
222) While in port, ships which are unseaworthy in
respect to pollution can be detained. (Art.
226, Subpara. 1(c)) In order to avoid pollution
resulting from “maritime casualties” (Art. 221,
the coastal state can enforce measures beyond the territorial
sea, pursuant to international customary or conventional law.
1) In this context, reference can be made to the
Convention Relating to Intervention on the High Seas in Cases
of Oil Pollution Casualties,
coastal state may even institute investigations and
proceedings against a vessel because of discharge beyond its
general pollution jurisdiction. It may act on its own
initiative if there are incidents on the high seas and in
specific cases on request. (Art. 218)
order to specify and limit the circumstances under which a
coastal state may intervene, the Convention includes a set of
safeguard regulations. (Art. 223-232). Coastal
states bordering straits may not apply these regulations for
ships in transit passage. (Art. 233) They may implement laws
in regard to discharge of oil and similar substances. (Art.
42, Subpara. 1(b)) Both user states and states bordering
straits are to co-operate by means of agreements in pollution
matters in straits. (Art. 43)
states are to respect any obligatons assumed under special
conventions, but these obligations are to be carried out in a
manner consistent with the general provisions of the 1982
Convention, (Art. 237) and no agreements may be made which
affect the basic principles of these provisions. (Art. 311,
Para. 3) States are responsible for the fulfillment of their
obligations and are liable according to international law
304) and are to ensure prompt compensation for any damage.
(Art. 235, Para. 2)
Convention rarely touches the question of damage compensation.
This is largely a matter of other international conventions
and sources of law, especially of private law; for example, in
pollution matters, some important sources would be
Convention on Civil Liability for Oil Pollution Damage, 1969,
Convention on the Establishment of an International Fund for
Compensation for Oil Pollution Damage, 1971,
Tanker Owners' Voluntary Agreement Concerning Liability for
Oil Pollution (TOVALOP), and
Contract Regarding an Interim Supplement to Tanker Liability
for Oil Pollution (CRISTAL);
a more general convention on liability like the
Relating to the Limitation of the Liability of owners of
Sea-Going Ships, Brussels, 1957,or one closely related to
questions of liability, such as the
Relating to the Arrest of Sea-Going Ships,
Convention employs the principle that its provisions are
without prejudice for the application of existing or newly
developed international law. (Art. 304) Convention provisions
having to do with this question concern the liability of the
flag state for warships and other governmental vessels in
non-commercial service, (Art, 31; Art. 42, Para. 5; Art. 54;
Art. 42, Para. 5; Art. 236) activities in the Area, (Art. 139)
marine scientific research, (Art. 263) hot pursuit, (Art.
. 8) pollution, and others. (Art. 106 (Piracy); Art. 110, Para.
3 (Right to visit)) In pollution matters, the Convention
provides a general clause stating that states are responsible
for the fulfillment of their international obligations and
that they are liable in accordance with international law.
(Art. 235) In addition, coastal states which take unlawful
measures against foreign vessels are liable for damage or loss
resulting from said measures. (Art. 232) International
governmental organizations which accede to the Convention bear
the same responsibility as states parties. (Art. 1, Subpara.
2(2); Annex IX, Art. 6) Where indemnity is called for, the
Convention requires states to adopt laws providing procedures
for compensation, (e.g., (Art. 235, Para. 2; Art. 232)) just
as it does in the case of breakage of or damage to cables and
pipelines. (Art. 112-115)
E. MEASURES FOR PEACE AND JUSTICE
compliance with the general obligations of all member states
as laid down in the United Nations Charter to maintain peace
and security and strengthen universal peace, (UN Charter, Art.
1) the 1982 Convention affirms these principles, (Preamble;
Art. 138; Art. 301) but also goes further by reserving “the
high seas for peaceful purposes”,
(Art. 88) opening the Area exclusively for peaceful purposes,
(Art. 141; Art. 147, Subpara. 2(d)) and requiring that marine
scientific research be conducted exclusively for peaceful
purposes. (Art. 240, Subpara. (a); Art. 246,
. 3) However, it is hard to see where these noble sentiments
have a practical legal impact. In the third decade of the
existence of the United Nations (1975-1985) alone, there were
about fifteen fishing disputes, thirty major demarcation
diputes, and a similar number of major military operations.
The oceans are “packed”
with military equipment and electronic devices. Some argue
that this is necessary to maintain peace; others, of course,
see it as a threat to peace. These contradictory viewpoints
reflect the fact that the Convention is a compromise at the
lowest common denominator, and as long as the phrase “for
is not defined more precisely, its impact will depend on the
politics of the moment and it will not develop any authority
of its own. However, the mere fact that the phrase exists and
is used in the Convention can lend weight to arguments and
further demand for a definition of “peaceful
in order to make the expression applicable.
2. MEASURES TO CLOSE THE ECONOMIC GAP
in all, the Convention is a law which aims to establish and
maintain justice for all, and as such will be of benefit for
all. But as it is also a political document, there are some
subjects more related to substantive goals rather than- simple
regulation. Provisions of a regulatory nature can provide
justice only when applied to relations among partners with
equal footing in a social and economic system; the wider any
existing gap between partners is, the less law will be able to
provide justice. There is at the moment a considerable
economic gap between the northern and southern hemispheres of
our globe, and it is essential for the peace and security of
the world that measures be provided to close this gap. The
Convention incorporates to this end three substantive measures.
first of these is, in particular, the dedication of the
deep-sea area and its resources to all people (Art. 136-137)
on the basis of “equal sharing” and, in general, the
regime of the (Area. Part XI) Second, marine scientific
research and marine technology are given a new dimension of
importance, as almost 100 provisions, or one-third of the
Convention, deal with various aspects and to varying degrees
with these subjects. Finally, a complete Part of the
Convention is dedicated to the development and transfer of
marine technology (Part XIV) in order to encourage cooperation
and the establishment of regional centres (Art. 275-277) by
means of which research, training, and transfer of technology
can be provided; this part is at all times to be read,
interpreted, and practiced in accordance with the regime of
marine scientific research and the regime of the Area.
provisions aimed at reducing the economic differences between
North and South are basically weak in spite of the
the number, but they are nonetheless
of significance because they have found their way into the
charter of the oceans, require co-operation and transfer of
technology, and impose considerable responsibility on
THE UNIFICATION OF THE
LAW OF THE SEA
1982 Convention is the Magna Carta of the law of the
sea, and as such it provides only the general legal framework
for all aspects of the use of the oceans. The framework
contains considerable detail (which does not necessarily mean
precision) with regard to some subjects, e.g., “innocent
17-32) deep sea mining, (Part
XI) and pollution from vessels. (Art.
217-234) In contrast, the Convention provides no more
than a programme for some subjects, e.g., enclosed and
semi-enclosed seas, (Part
IX) and in some cases does no more than make a
statement without further elaboration, e.g., the phrase
“reserved for peaceful purposes.” (Art. 88)
But all provisions are intended to unify universal law and
erect barriers against deviating national law, especially when
it is less strict than international standards.
Convention employs a number of methods
- often only the results of compromises
- to achieve this goal. The most direct method is the
detailed regulation of a clearly defined subject, leaving
little or no room for questions to arise. The right of
navigation for all states, (Art.
90) the extent or establishment of zones, (Part
II-VI) and piracy (Art.
101-107) are examples of this approach. The same level
of quality of law is reached when states are obliged to apply
codified international law or conventions. The Convention
never uses the technique of referring directly to regulatory
law, and only mentions the UNCITRAL Arbitration Rules, (Art.
108, Subpara. 2(c);
Para. 4) or the United Nations
Charter. (Art. 19, Subpara. 2(a);
39, Subpara. 1(b); Art.
279) When other law (conventions) is to be applied, the
Convention uses instead terms such as “taking into account
internationally agreed rules”,
207) to conform to generally accepted international regulations,
procedure, and practice, e.g., (Art.
5) "at least have the same effect as that of
generally accepted international rules,”
2) or “no
less effective than international rules.”
3) This technique allows varying degrees of flexibility
of interpretation and enforcement of international regulations
according to the interests and needs of each state, but still
supports the intention of unification. With respect to
pollution, the Convention uses the additional technique of
requiring the states to establish international rules e.g.,
43, Subpara. (b); Art. 208,
and to re-examine them from time to time. (Art.
following regulations are of a different nature:
order to avoid the undermining of the comprehensive
application of the Convention, it is not permitted to make
reservations and exceptions (Art.
309) or otherwise suspend or modify the objectives of
the Convention. (Art.
Convention requires the States Parties to fulfill their
obligations in good faith, (Art.
300) which means that each state is to follow the
"Golden Rule" and act as it would wish the other
states to act in fulfilling their obligations
of the most significant instruments of unification is the
compulsory dispute settlement system provided by the
XII) Decisions from these tribunals would in many
respects be a great contribution to the law of the sea.
but not least, reference should be made to the Preamble of the
Convention, which calls for the achievement of justice and
equal rights through the Convention, a goal which can only be
reached by means of a highly unified law.
SETTLEMENT OF DISPUTES
Convention system for settlement of disputes (Part XV) must be
seen against the background of the international mechanism for
resolving conflicts. Basically, all nations observe the
principles of international law and fulfil their obligations
on a kind of honour system and in good faith; if a nation
refuses to observe these principles – and neither diplomacy
nor political pressure can effect a change – military power
may well be the only mechanism available to force this nation
to meet its obligations, as the international legal system has
virtually no means of enfolding judicial decisions or
contractual obligations (such as treaties or international
conventions). This century has seen many attempts to develop
systems for the peaceful settlement of international disputes.
One such attempt relevant for the 1982 Convention was the
establishment of the International Court of Justice by the
United Nations Charter of 1945. The Court of Justice is a
principal organ of the United Nations, and all,members of the
United Nations may apply to the Court; but there is no general
obligation to submit disputes to the Court of Justice.
importance of the dispute settlement system provided by the
Convention is that states parties which disagree on the
interpretation or application of the provisions of the
Convention are, at least to some extent, (Art. 286; Art.
297-298) bound to settle the dispute through courts or
tribunals as described in the Convention. (Art. 287) A special
dispute settlement system is designed for the activities in
the sea-bed Area. (Art. 287; Art. 186-190) Within the general
system, states have the choice among four fora, which include
the International Court of Justice; (Art. 287, Subpara. 1(b))
the other three are (a) the International Tribunal for the Law
of the Sea, (b) an arbitral tribunal, and (c) a special
arbitral tribunal. (Art. 287, Para. 1) To a large extent, this
is the restdt of compromises which made it easier for the
states to swallow the bitter pill of surrendering a part
of'their sovereignty in accepting a compulsory system by
giving them a wider choice of the court or tribunal to which
they might apply, depending on the trust they have in a
particular judicial organ. The law of the sea dispute
settlement system is urgently needed for the unification of
the law of the sea. If one considers the complexity which has
evolved in the law of the sea in only a few decades, the
economic possibilities of the oceans, the importance of the
seas for mankind, and the countless aspects which must be
taken into account in achieving justice, one will be forced to
the conclusion that a compulsory dispute settlement is
of BERNAERTS' GUIDE (followed by the Convention-Text,
page 133 to 329)
in PDF - HERE