This chapter examines the role of industry self-regulation in relation to international maritime law. While multilateral intergovernmental agreements are important to encouraging regulatory harmonisation, private actors have an essential role in industry, both in developing norms and in making rules and standards effective to ensure safe and secure shipping on clean oceans. Nonetheless, private actors are often overlooked and yet to be placed in the context of international maritime law and especially the United Nations Convention of Law of the Sea (UNCLOS). This chapter does so by analysing industry self-regulation in relation to UNCLOS, flag states and the International Maritime Organization (IMO) respectively.
This article discusses the role of private regulators within the international legal framework of Arctic shipping. The role of private actors has been acknowledged both in legal scholarship and policy papers; but it has not yet been placed in the centre of attention. This article does so by analysing the role of private actors under the Polar Code and three types of private regulation — guidelines of classification societies, requirements of insurance industry and private contracting. It concludes that private actors have an essential role both in developing and effectuation of public international law and thus in achieving sustainable Arctic shipping.
This case note analyses the marine environmental protection issues that arose in the 2016 South China Sea arbitration. Given that the South China Sea includes highly productive fisheries and extensive coral reef ecosystems, the alleged breach of environmental obligations under the United Nations (UN) Convention on the Law of the Sea was important in this arbitration. The Arbitral Tribunal examined three obligations concerning marine environmental protection under the UN Convention on the Law of the Sea: the obligation of due diligence; the obligation to conduct an environmental impact assessment; and the obligation to cooperate. The Tribunal's arbitral award contributes to the clarification of the interpretation of relevant provisions concerning marine environmental protection under the Convention. Furthermore, a remarkable feature of the arbitration was that the Tribunal appointed experts to have an independent opinion with regard to environmental damages arising from China's activities in the South China Sea. The use of experts in the South China Sea arbitration is worth noting, since scientific evidence is of particular importance in the settlement of international environmental disputes.
The core function of UNCLOS is to provide a legal order for the oceans and their peaceful uses. This includes providing a legal framework for upholding law and order at sea, as this is a precondition for peaceful use. Part One of this volume deals with different perspectives of upholding law and order at sea; and Chapter 2 creates a backdrop for the following chapters dealing with these various issues. The chapter presents some perspectives on the system of law and order at sea and sets the following chapters in context with themes such as the scope of UNCLOS and its limitations, the adaptability of the convention to new developments, the role of the zonal system created under the convention and the influence of state practice on the system of upholding law and order at sea. By doing so, Chapter 2 also creates a line to the following parts of this volume; and some of the perspectives raised in Chapter 2 will be revisited in the final part (Part Four) of this volume, dealing with UNCLOS as a system of regulation and connected methodologies.
The 1982 United Nations Convention on the Law of the Sea (UNCLOS) has for four decades been considered by many to be one of the most important legislative achievements of international law. It is revered as a “constitution of the oceans”, providing the legal framework for the governance of the oceans. This volume explores how the UNCLOS is functioning in various complex settings, how it adapts to new, emerging developments, as well as how it interacts with other regulations, both within the law of the sea regime and outside. Engaging in themes such as law and order at sea, UNCLOS' interaction with human rights and the role of private actors, the book raises complex questions in the application, understanding, and enforcement of the convention and how it can be envisaged, interpreted, and used in a dynamic world. The volume also raises methodological questions, the answers to which may enhance the predictability and coherence of the law under UNCLOS and thus secure its role as the predominant and relevant system for legal governance at sea for many decades to come. As a contribution to ensuring the future relevance of UNCLOS, the book will be a valuable resource for scholars, diplomats, judges and other practitioners who are working with and interpreting the law of the sea and related issues of maritime law, migration law, human rights law and humanitarian law.
The capacity to act as a port state in international law is best described by the specific powers exercised over foreign ships, namely inspection, detention, expulsion or request of any type of information prior to the entry into the port. Many of these powers are explicitly attributed to the state in multilateral instruments, whereby the flag state consents to having its ships subject to the jurisdiction of the port state. Notwithstanding the consensus around the complementary nature of port state jurisdiction with respect to certain obligations of the flag state, the port state is not limited to fulfilling a secondary role. This is especially visible in the prevention, reduction and control of ship-source pollution, where some port states have not hesitated in acting regardless of an expressed consent by the flag state to the rule or standard being applied with the support of port powers. Not only do port states use more stringent enforcement powers to ensure that international treaties are effective, but they also prescribe novel rules and standards upon any foreign ship that approaches the port, often as a means of breaking an international negotiation deadlock. This study discusses the international legal basis for such unilateral jurisdiction by analyzing the principles of state jurisdiction under the dichotomy parochial/cosmopolitan. By interpreting the stated and implicit purposes of port state actions under that dichotomy, this study proposes that states are finding a legal ground to act based on certain legal functions they fulfill in the international legal order. This argument puts into perspective the assumed self-sufficiency of territoriality and shows how unilateralism may also serve to seek to set universally applicable norms.
Spatial tools to calculate cumulative impact assessments on the environment (CIA) are important contributors to the implementation of an ecosystem-based approach to maritime spatial planning (MSP). Ecosystem dynamics are increasingly important to understand as the activities and pressures in marine areas increase. Results from the application of a new training set for the CIA tool MYTILUS, developed in capacity-building MSP projects for active learning environments, illustrate important points on how the CIA method can be used in systematic scenario design. The feedback from its use in an online PhD course outlines how the training set successfully enables researchers from different disciplines and different parts of the world to meet the CIA approach with such interest and understanding that it enables them to highlight the strengths as well as the shortcomings of the tool interface, tool capabilities, and CIA method, even when none of these researchers are CIA experts. These promising results are presented in this paper and advocate for the increasing use of MYTILUS and similar CIA tools in MSP stakeholder sessions where no preliminary CIA expertise can be expected. The key strengths and challenges of training CIA with MYTILUS are discussed to point out focus points for how to make its approaches increasingly fit for participatory and decision-making processes in MSP to utilize its promising abilities for supporting ecosystem-based management.