Making the Law of the Sea

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Making the Law of the Sea

The law of the sea is an important area of international

law that must be able to adapt to the changing needs of the

international community. Making the Law of the Sea examines

how various international organizations have contributed to

the development of this law and what kinds of instruments

and law-making techniques have been used. Each chapter

considers a different international institution – including the

International Maritime Organization and the United Nations –

and analyzes its functions and powers. Important questions are

posed about the law-making process, including what actors are

involved and what procedures are followed. Potential problems

for the development of the law of the sea are considered and

solutions are proposed. In particular, James Harrison explores

and evaluates the current methods employed by international

institutions to coordinate their law-making activities in order

to overcome fragmentation of the law-making process.

dr j a m e s h a r r i son is a lecturer at the University of

Edinburgh where he teaches public international law and

public law.

cambridge studies in international and comparative law

Established in 1946, this series produces high-quality scholarship in the fields of

public and private international law and comparative law. Although these are dis￾tinct legal sub-disciplines, developments since 1946 confirm their interrelation.

Comparative law is increasingly used as a tool in the making of law at

national, regional and international levels. Private international law is now

often affected by international conventions, and the issues faced by clas￾sical conflicts rules are frequently dealt with by substantive harmonization

of law under international auspices. Mixed international arbitrations, espe￾cially those involving state economic activity, raise mixed questions of public

and private international law, while in many fields (such as the protection

of human rights and democratic standards, investment guarantees and inter￾national criminal law) international and national systems interact. National

constitutional arrangements relating to “foreign affairs,” and to the imple￾mentation of international norms, are a focus of attention.

The Board welcomes works of a theoretical or interdisciplinary character,

and those focusing on the new approaches to international or comparative law

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welcome, as are translations of the best work published in other languages.

General Editors James Crawford SC FBA Whewell Professor of

International Law, Faculty of Law, and Director,

Lauterpacht Research Centre for International Law,

University of Cambridge

John S. Bell FBA Professor of Law, Faculty of Law,

University of Cambridge

Editorial Board Professor Hilary Charlesworth Australian National

University

Professor Lori Damrosch Columbia University Law

School

Professor John Dugard Universiteit Leiden

Professor Mary-Ann Glendon Harvard Law School

Professor Christopher Greenwood London School of

Economics

Professor David Johnston University of Edinburgh

Professor Hein Kötz Max-Planck-Institut, Hamburg

Professor Donald McRae University of Ottawa

Professor Onuma Yasuaki University of Tokyo

Professor Reinhard Zimmermann Universität

Regensburg

Advisory Committee Professor D. W. Bowett QC

Judge Rosalyn Higgins QC

Professor J. A. Jolowicz QC

Professor Sir Elihu Lauterpacht CBE QC

Judge Stephen Schwebel

A list of books in the series can be found at the end of this volume.

Making the Law of the Sea

A Study in the Development

of International Law

James Harrison

c a m b r i d g e u n i v e r s i t y p r e s s

Cambridge, New York, Melbourne, Madrid, Cape Town,

Singapore, São Paulo, Delhi, Tokyo, Mexico City

Cambridge University Press

The Edinburgh Building, Cambridge CB2 8RU, UK

Published in the United States of America by Cambridge University Press, New York

www.cambridge.org

Information on this title: www.cambridge.org/9780521198172

© James Harrison 2011

This publication is in copyright. Subject to statutory exception

and to the provisions of relevant collective licensing agreements,

no reproduction of any part may take place without the written

permission of Cambridge University Press.

First published 2011

Printed in the United Kingdom at the University Press, Cambridge

A catalogue record for this publication is available from the British Library

Library of Congress Cataloguing in Publication data

Harrison, James, 1979–

Making the law of the sea : a study in the development of international law /

[James Harrison].

p. cm. – (Cambridge studies in international and comparative law)

Includes bibliographical references and index.

ISBN 978-0-521-19817-2 (hardback)

1. Law of the sea. I. Title. II. Series.

KZA1145.H375 2011

341.4′5–dc22

2010054308

ISBN 978-0-521-19817-2 Hardback

Cambridge University Press has no responsibility for the persistence or

accuracy of URLs for external or third-party internet websites referred to in

this publication, and does not guarantee that any content on such websites is,

or will remain, accurate or appropriate.

v

Acknowledgements page x

Table of treaties xi

Table of cases xiv

Abbreviations xvi

1 Making the modern law of the sea: challenges and

opportunities 1

1 The challenges of international law-making 1

2 Treaties as law-making instruments 3

3 International institutions and customary

international law 13

4 The development of the law of the sea through

international institutions 23

2 The United Nations Convention on the Law of the Sea 27

1 Introduction 27

2 Early attempts at the codification of the law of the sea 28

2.1 The origins of codification 28

2.2 Codification of the law of the sea by the League

of Nations 29

2.3 The First and Second United Nations Conferences

on the Law of the Sea 31

3 The Third United Nations Conference on the Law

of the Sea 37

3.1 Convening of the Third United Nations Conference

on the Law of the Sea 37

3.2 Decision-making procedures at the Third

United Nations Conference on the Law of the Sea 40

Contents

vi contents

3.3 The package deal 44

3.4 Adoption of the Law of the Sea Convention 46

4 The Law of the Sea Convention 48

4.1 An overview of the Law of the Sea Convention 48

4.2 The impact of the Law of the Sea Convention on

international law 51

5 Conclusion 59

3 Amendment and modification of the Law of the

Sea Convention by the States Parties 62

1 Introduction 62

2 Amendment of the Law of the Sea Convention 64

2.1 Introduction to the amendment procedures 64

2.2 The general amendment procedure 65

2.3 The simplified amendment procedure 67

2.4 The entry into force of amendments 68

3 Law-making by the Meeting of the States Parties 70

3.1 Functions of the Meeting of the States Parties 70

3.2 Decision-making powers of the Meeting of the States

Parties 75

3.3 Treaty-making by the Meeting of the States Parties 82

4 Conclusion 84

4 Implementing agreements 85

1 Introduction 85

2 The Part XI Agreement 86

2.1 Negotiation of the Part XI Agreement 86

2.2 The relationship between the Part XI Agreement

and the Law of the Sea Convention 90

2.3 Legal impact of the Part XI Agreement 93

3 The Fish Stocks Agreement 99

3.1 Negotiation of the Fish Stocks Agreement 99

3.2 The relationship between the Fish Stocks

Agreement and the Law of the Sea Convention 103

3.3 Legal impact of the Fish Stocks Agreement 106

4 Conclusion 113

5 Developments in the deep seabed mining regime 115

1 Marine minerals and the International Seabed Area 115

2 The International Seabed Authority 116

contents vii

3 The adoption of rules and regulations by the

International Seabed Authority 122

3.1 Powers of the International Seabed Authority 122

3.2 Decision-making procedures of the International

Seabed Authority 124

3.3 Participation in the decision-making process 128

4 Formal amendment of the deep seabed mining regime 131

5 The regulatory regime for polymetallic nodules 135

5.1 Regulations on prospecting and exploring for

polymetallic nodules 135

5.2 Recommendations of the Authority 140

6 The regulatory regime for polymetallic sulphides

and cobalt-rich crusts 142

7 Dispute settlement and the deep seabed regime 147

8 Conclusion 151

6 The International Maritime Organization and the

international regulation of shipping 154

1 The international regulation of shipping 154

2 Status and membership of the International Maritime

Organization 155

3 Standard-setting by the International Maritime

Organization 158

3.1 Treaty standards 158

3.2 Review and amendment of treaties and technical

standards 160

3.3 Nonbinding instruments 164

4 The incorporation of shipping standards into the Law

of the Sea Convention 165

4.1 Rules of reference 165

4.2 Flag state jurisdiction and rules of reference 166

4.3 Coastal state jurisdiction and rules of reference 168

4.4 “Generally accepted international standards” 171

5 Traffic measures and the role of the International

Maritime Organization 179

5.1 The approval role of the International Maritime

Organization 179

5.2 Navigational measures in international straits 181

5.3 The adoption of sea lanes in archipelagic waters 183

viii contents

5.4 Mandatory navigational measures in the Exclusive

Economic Zone 186

5.5 Decision-making under the approval procedures 189

5.6 Innovative navigational measures and the

law-making role of the International Maritime

Organization 190

6 Conclusion 196

7 The contribution of the Food and Agriculture

Organization to international fisheries law 200

1 Introduction 200

2 The United Nations General Assembly and fisheries 201

3 The Food and Agriculture Organization and fisheries 204

4 Fisheries instruments adopted by the Food and

Agriculture Organization 208

4.1 1993 Agreement to Promote Compliance with

International Conservation and Management

Measures by Fishing Vessels on the High Seas 208

4.2 Code of Conduct on Responsible Fisheries 213

4.3 2009 Agreement on Port State Measures to Prevent,

Deter and Eliminate Illegal, Unreported and

Unregulated Fishing 221

5 Fisheries instruments and rules of reference in the

Law of the Sea Convention and the Fish Stocks

Agreement 224

6 Cooperation between the Food and Agriculture

Organization and regional fisheries bodies 226

7 Conclusion 234

8 Cooperation, coordination and conflict between

international institutions 237

1 The problem of fragmentation in international

law-making 237

2 Vertical coordination of international law-making

activities 243

2.1 Coordination through the United Nations 243

2.2 Powers under the United Nations Charter and

relationship agreements 244

2.3 Coordination by the United Nations in the law

of the sea 247

contents ix

3 Horizontal cooperation and coordination between

international institutions 257

3.1 Introduction 257

3.2 Overlap between the activities of the International

Maritime Organization and the International Labour

Organization 258

3.3 Relationship Agreement between the International

Maritime Organization and the International Labour

Organization 259

3.4 Joint Working Group on Liability and Compensation

Regarding Claims for Death, Personal Injury and

Abandonment of Seafarers 261

3.5 Joint Working Group on Ship Scrapping 263

4 Solving conflicts in the applicable law 268

5 Conclusion 275

9 Conclusion 278

1 Developing the law of the sea regime through

institutions 278

2 Participation and inclusivity in law-making 280

3 The importance of consensus 284

4 Promoting coherence in the law of the sea 289

Bibliography 293

Index 305

Acknowledgements

Much of the research contained in this book was conducted as part

of my PhD at the University of Edinburgh. Throughout this proc￾ess I was lucky to have Professor Alan Boyle as my PhD supervisor. I

am indebted to his constructive comments on my work, which have

assisted my understanding of the intricacies of the law of the sea and

international law more generally. I would also like to acknowledge the

guidance and support of other members of the academic staff at the

University of Edinburgh. I would particularly like to thank Professor

Chris Himsworth for his advice and encouragement in carrying out

my research. I am grateful that since I completed by PhD, I have been

able to count these individuals as colleagues and I have continued to

be able to benefit from their immeasurable experience. Finally, I would

like to thank Katie Pekot for all her support, as well as her patience in

proofreading and editing earlier versions of this work.

x

xi

Table of treaties

1919 Treaty of Peace with Germany [Versailles Treaty], (1919) 13

Am. J. Int’l L. Supp. 151 8

1945 Charter of the United Nations, 892 UNTS 119 12n.46, 31,

156, 243–5

1946 Agreement between the United Nations and the

International Labour Organization [UN–ILO Relationship

Agreement], 1 UNTS 186 244–5

1946 Agreement between the United Nations and the Food and

Agriculture Organization of the United Nations [UN-FAO

Relationship Agreement], available in (1947) 1 Int’l Org.

239 244–5

1948 Convention establishing the International Maritime

Organization, 289 UNTS 48; also available in IMO Basic

Documents, Vol. 1 (2010 Edition) 156, 158, 241, 258–9

1948 Agreement between the United Nations and the

International Maritime Organization [UN-IMO Relationship

Agreement], available in IMO Basic Documents, Vol. 2 (2003

Edition) 244–5

1948 Agreement between the International Maritime Organization

and the International Labour Organization [IMO-ILO

Relationship Agreement], 327 UNTS 309 244–5

1958 Convention on the High Seas, 450 UNTS 82 17n68, 35–7,

167–8, 174

1958 Convention on the Territorial Sea and the Contiguous Zone,

516 UNTS 205

1958 Convention on the Continental Shelf, 499 UNTS 311 16–17,

20, 49

xii table of treaties

1958 Convention on Fishing and Conservation of the Living

Resources of the High Seas, 559 UNTS 285 35, 99–100

1959 Agreement between the International Labour Organization

and the Intergovernmental Maritime Consultative

Organization, 327 UNTS 309 259–60

1969 Vienna Convention on the Law of Treaties, 1155 UNTS

331 3n12, 5n19, 6–7, 9, 64, 69, 73n44, 76n59, 93, 95–6, 98,

107–8, 133–4, 149n183, 165n63, 269–72

1973 Convention on International Trade in Endangered Species,

993 UNTS 243 235–6, 240–1

1973/78 Convention on the Prevention of Marine Pollution from

Ships as amended by the Protocol of 1978 [MARPOL

Convention], 1340 UNTS 61 159–64, 165n62, 169, 172–4,

187–8

1974 Convention on the Safety of Life at Sea [SOLAS Convention],

1184 UNTS 2 157, 159–64, 165n62, 171–4, 177–8, 191–3

1976 Merchant Shipping (Minimum Standards) Convention,

available at ILOLEX, www.ilo.org/ilolex/cgi-lex/convde.

pl?C147 241n18

1982 United Nations Convention on the Law of the Sea [Law of

the Sea Convention], 1833 UNTS 396 23–6, 27–8, 46–84,

85–6, 90–3, 102, 103–6, 113–53, 154–5, 165–99, 200–1, 224–6,

278–9

1986 Vienna Convention on the Law of Treaties between States

and International Organizations or between International

Organizations, UN Document A/CONF.129/1 3n12

1989 Basel Convention on the Control of Transboundary

Movements of Hazardous Wastes and their Disposal (1989) 28

Int’l Leg. Materials 657 263–8

1993 Agreement to Promote Compliance with International

Conservation and Management Measures by Vessels Fishing

on the High Seas [FAO Compliance Agreement], (1994) 33 Int’l

Leg. Materials 968 208–12, 218, 234

1994 Agreement relating to the Implementation of Part XI of

the United Nations Convention on the Law of the Sea of 10

December 1982 [Part XI Agreement], (1994) Int’l Leg. Materials

1309 86–99, 116–21, 124–7, 132, 135n112, 136–40, 146, 151,

280

1995 Agreement for the Implementation of the Provisions of

the United Nations Convention on the Law of the Sea

table of treaties xiii

of 10 December 1982 relating to the Conservation and

Management of Straddling and Migratory Fish Stocks [Fish

Stocks Agreement], (1995) 34 Int’l Leg. Materials 1542 99–113,

200, 204, 212, 216, 224–7, 232–3, 234, 280

1995 International Convention on Standards of Training,

Certification and Watchkeeping for Seafarers, (1997) UKTS

61 159, 241–2

1997 Agreement concerning the relationship between the United

Nations and the International Seabed Authority [UN-ISA

Relationship Agreement], annexed to UNGA Resolution 52/27,

26 November 1997 245–7

2000 Convention on the Conservation and Management of Highly

Migratory Fish Stocks in the Western and Central Pacific

Ocean (2001) 40 Int’l Leg. Materials 278 111

2001 Convention on the Conservation and Management of Fishery

Resources in the South-East Atlantic Ocean (2002) 41 Int’l Leg.

Materials 257 111

2001 UNESCO Convention on the Protection of Underwater

Cultural Heritage [Underwater Cultural Heritage Convention]

(2002) 41 Int’l Leg Materials 40 114n120

2001 International Convention on the Control of Harmful

Anti-Fouling Systems on Ships [Anti-Fouling Convention],

IMO Document AFS/CONF/26, available from IMO

publications 157n19, 159, 161n41, 172, 173, 178

2004 International Convention for the Control and Management

of Ships’ Ballast Water and Sediments [Ballast Water

Convention], IMO Document BWM/CONF/36, available from

IMO publications 157n19, 159, 161n41, 165, 172–3, 178

2006 Maritime Labour Convention, available at ILOLEX, www.ilo.

org/ilolex/cgi-lex/convde.pl?C186 12–3, 241, 262–3

2009 Convention for the Safe and Environmentally Sound

Recycling of Ships [Ship Recycling Convention],

IMO Document SR/CONF/45, available from IMO

publications 267

2009 Agreement on Port State Measures to Prevent, Deter and

Eliminate Illegal, Unreported and Unregulated Fishing

[Agreement on Port State Measures] 110, 221–4, 234