D. PREVENTION MEASURES 
& 
E. MEASURES FOR PEACE AND JUSTICE

 1.    SAFETY OF SHIPPING

 The 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:  

(a)      Convention on the Safety of Life at Sea (SOLAS), 1974;

(b)     Convention on Loadlines, 1966;

(c)      Convention for Preventing Collision at Sea (COLREG), 1972;

(d)     Convention on Safety of Fishing Vessels, 1977;

(e)      Convention on Standard of Training, Certification, and Watchkeeping for Seafarers, 1978;

(f)      Convention on Maritime Search and Rescue, 1979;

(g)      Convention for the Prevention of Pollution from Ships (MARPOL), 1973.  

The 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. 94, Para. 1-4; Art. 194, Subpara. 3(b); Art. 211) while other provisions are related only to matters of navigation such as preventing collisions, (Art. 21, Para. 2; Art. 39, Para. 2; Art. 94, Subpara. 2(b)) the use of sea lanes and traffic separation schemes, (Art. 22; Art. 41; Art. 53, Para. 10) and safety measures in respect to artificial installations, (Art. 60; Art. 147; Art. 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. 98)

The Convention refers only to generally accepted international regulations, pro­cedure, and practice (Art. 94, Para. 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 to...international regulations,” (Art. 94, Para. 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.  

2. PRESERVATION OF THE MARINE ENVIRONMENT  

The 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 the 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 1972 in Stockholm . Following this conference, many regional agreements negotiated under the auspices of the UN Environment Programme (UNEP) were prepared.

The 1982 Convention defines pollution (Art. 1, Subpara. 1(4)) and establishes a general duty to protect the marine environment and the measures to be taken, (Art. 192; Art. 194) and outlines methods of co-operation, including monitoring and technical assistance. (Art. 197-206).

With 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”, (Art. 207; Art. 213) “sea­bed", (Art. 208; Art. 209) atmosphere, (Art. 212) and all kinds of dumping, (Art. 1, Subpara. 1(5); Art. 210; Art. 216; Art. 214; 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.

The 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. 212, Para. 1) and land-based (Art. 207, Para. 1) sources) to “no less effective” (Art. 208, Para. 3; Art. 209, Para. 2; Art. 210, Para. 6) and “shall at least have the same effect” (for vessels) (Art. 211, Para. 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 standards” to prevent dumping. (Art. 210, Para. 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 conference.” (Art. 211, Para. 2) The emphasis should be placed on “competent organization,” in this case the International Maritime Organization (IMO), which adopted the  

-        Convention for the Prevention of Pollution from Ships (MARPOL), 1973, is also responsible for handling secretarial duties of the

-        Convention on the Prevention of Marine Pollution by Dumping, 1972,

-        and has issued many recommendations and codes directly or indirectly concerned with vessel pollution matters, e.g.,

-        International Maritime Dangerous Goods Code (IMDG),

-        Code for the Construction and Equipment of Mobile Offshore Drilling Units (MODU), and

-        Code of Safety for Nuclear Merchant Ships.

 There 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 must be adopted by the Sea-Bed Authority. (Art. 145; Annex III, Art. 17; 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. (Art. 207, Para. 4; Art. 208, Para. 5; Art. 212, Para. 3)

Where 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. 211, Para.4-6; 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. 218-220; Art. 222) While in port, ships which are unseaworthy in respect to pollution can be detained. (Art. 219; Art. 226, Subpara. 1(c)) In order to avoid pollution resulting from “maritime casualties” (Art. 221, Para. 2) the coastal state can enforce measures beyond the territorial sea, pursuant to international customary or conventional law. (Art. 221, Para. 1) In this context, reference can be made to the  

International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, Brussels 1969.   

The 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)

In 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)

All 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 (Art, 235; Art. 304) and are to ensure prompt compensation for any damage. (Art. 235, Para. 2)

 3. INDEMNITY

The 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

-          the Convention on Civil Liability for Oil Pollution Damage, 1969,

-          the Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971,

-          the Tanker Owners' Voluntary Agreement Concerning Liability for Oil Pollution (TOVALOP), and

-          the Contract Regarding an Interim Supplement to Tanker Liability for Oil Pollution (CRISTAL);

or a more general convention on liability like the

-          Convention 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

-          Convention Relating to the Arrest of Sea-Going Ships, Brussels , 1952.

 The 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. Ill , Para . 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

 1. ESTABLISHING PEACE

 In 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, Para . 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 peaceful purposes” 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 purposes” in order to make the expression applicable.

 2. MEASURES TO CLOSE THE ECONOMIC GAP

 All 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.

The 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.

These provisions aimed at reducing the economic differences between North and South are basically weak in spite of the impressiveness of  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 international organizations.

 3. THE UNIFICATION OF THE LAW OF THE SEA

 The 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 passage,” (Art. 17-32) deep sea mining, (Part XI) and pollution from vessels. (Art. 211; 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.

The 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); Annex III, Art. 5, Para. 4) or the United Nations Charter. (Art. 19, Subpara. 2(a); Art. 39, Subpara. 1(b); Art. 138; Art. 279) When other law (conventions) is to be applied, the Convention uses instead terms such as “taking into account internationally agreed rules”, e.g., (Art. 207) to conform to generally accepted international reg­ulations, procedure, and practice, e.g., (Art. 94, Para. 5) "at least have the same effect as that of generally accepted international rules,” e.g., (Art. 211, Para. 2) or “no less effective than international rules.” e.g., (Art. 208, Para. 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., (Art. 43, Subpara. (b); Art. 208, Para . 5) and to re-examine them from time to time. (Art. 208, Para. 5; Art. 211, Para.1)  

The following regulations are of a different nature:

(a)      In 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. 311, Para. 3-6)  

(b)     The 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  

(c)      One of the most significant instruments of unification is the compulsory dispute settlement system provided by the Convention. (Part XII) Decisions from these tribunals would in many respects be a great contribution to the law of the sea.  

(d)     Last 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.

 4. SETTLEMENT OF DISPUTES  

The 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.

The 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 essential.

End of BERNAERTS' GUIDE (followed by the Convention-Text,  page 133 to 329)

INDEX in PDF - HERE