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International Maritime Organisations

and their Contribution towards a sustainable Marine Development

compiled by Sicco Rah (Law of the Sea and Maritime Law Institute, University of Hamburg) 

 

The seminar “International Maritime Organisations and their Contribution to a sustainable Use of the Seas” which was held in the winter semester 2004/5 at the University of Hamburg by Prof. Dr. Peter Ehlers, President of the German Federal Maritime and Hydrographic Agency, and Prof. Dr. Rainer Lagoni, LL.M., Law of the Sea and Maritime Law Institute, attempts to cast a light on some of the most important among them.

 

The participants, graduates in law, among them scholars of the International Max-Planck Research School for Maritime Affairs, some undergraduate students and young graduates of sciences, do not only describe the structure of the organisations and analyse their influence on environmental protection. They also discuss organisational and substantial changes required to cope with present and future problems thereby focussing on sustainability.

 

It is a simple truth: As the world´s oceans are interconnected, actions by a single state to achieve sustainability cannot reach far. More than ever trade, shipping and fisheries have become globalized. Age-old rights such as the right of free passage still constitute the necessary basis for economic prosperity while limiting the jurisdictional powers of the coastal states.

 

Yet the ever-increasing usage of the oceans poses various environmental problems. Oil pollution caused by ships, for instance, is still a threat to the marine environment as well as land-based sources which are responsible for 80 % of the inputs. And despite all efforts, living resources such as migratory fish stocks are being exploited ruthlessly.

 

All these issues have something in common: They extend beyond the jurisdictional or factual powers of the single coastal state. This is where international law steps in. Subsequently, international maritime organisations have been addressing these challenges for quite some time or were even established for this purpose.

 

The different background of the participants who came from Germany, as well as from countries as far as China, the Philippines, Russia and Ukraine reflects the international approach of this scientific seminar. Some of the questions and answers are presented below:

 

What can international maritime organisations do? Do their rules and standards impact on sustainable development?

International maritime institutions provide for a large number of legal acts without which appropriate ocean governance would be unimaginable. Markus Detjen seeks to explore the legal framework within which these institutions elaborate rules and standards, especially with regard to fostering sustainable development.

 

First, he deals generally with the different legal acts that international institutions might adopt. If and how these acts can be enforced depends on the legal status. He then exemplifies the competences of international maritime institutions by looking at three specific organisations: the International Maritime Organization (IMO), the Helsinki Commission (HELCOM), and the OSPAR Commission (OSPARCOM). IMO, in particular, was given specific powers under the UN Law of the Sea Convention that puts it in a position to actively develop new standards that need to be adhered to by all states.

 

Markus Detjen concludes that although international institutions have rarely competences to establish legally binding obligations for their member states, the importance of their work can hardly be overestimated. IMO has been continuously engaged in the making of international shipping conventions and protocols primarily designed to impose upon flag States several obligations concerning safety of lives of all those on board as well as the prevention of marine pollution from vessel source pollution. HELCOM and OSPARCOM are fleshing out the given framework on the regional level. The two-tier system of global and regional organisations currently in place ensures that both general and detailed questions are addressed in the appropriate context, which is a necessary prerequisite to achieve sustainable development in the long run.

 

 

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How fast can the world react to protect the environment? Is the International Maritime Organization (IMO) a tanker or speedboat?

Ekaterina Anianova focuses on the most important of all maritime organisations, the IMO. This specialized agency of the United Nations (UN) is responsible for the improvement of safety and security of international shipping and the prevention of marine pollution from ships. This exclusive and hence very broad competence distinguishes it from any other maritime organisation.

 

However, the IMO has often been criticized for being slow in its law-making process, particularly as regards the establishment of regulations which strengthen the sustainable use of the oceans.

 

Ekaterina Anianova´s research concentrates on how fast the necessary measures for international shipping could and should be introduced at the international level by means of IMO instruments. The first part of the paper analyzes the IMO law-making process. It shows that the “tacit acceptance” procedure (if you keep silent, you agree) has to a great extent accelerated the adoption of amendments. The second part focuses on the time it took for IMO and its member states to elaborate and adopt some of the conventions and amendments made.

 

Ekaterina Anianova demonstrates that quite often “the speed of the fleet is the speed of the slowest ship” . From her point of view, IMO has been in many cases almost as slow as its slowest member.

 

However, she comes to the conclusion that if member states consider an issue really important and urgent, they could cooperate quite quickly. Especially the “tacit acceptance” procedure marks a significant progress. It helps to reach agreements more quickly and therefore supports those member states which put forward proposals in favour of a more sustainable development.

 

 

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Laws preventing pollution are good – but who controls their enforcement?

The questions remains: Who is allowed to control and enforce compliance with the international rules laid down by IMO? Meltem Deniz Güner examines in her contribution one way of international cooperation in this respect: The Paris Memorandum of Understanding (Paris MOU). She emphasises that the main responsibility for ensuring that ships comply with international provisions rests upon the owners, masters and the flag States. Yet certain Flag States, for various reasons, fail to meet their commitments contained in agreed international legal instruments. Subsequently some ships are sailing the worlds´ seas in an unsafe condition.

 

In order to reduce the safety risks posed by substandard ships a safety net has been created and port State Control has been placed as the last step. Port State Control is the inspection of foreign ships in national ports to verify that the condition of the ship and its equipment comply with the requirements of international regulations and that the ship is manned and operated in compliance with these rules. With its authority to inspect, detain, urge to rectify deficiencies and, in some cases, refuse access to the member States ports, Port State Control can help to reduce the negative environmental impact of shipping in eliminating sub-standard ships. Meltem Deniz Güner regards Port State Control as a useful and effective instrument to combat environmental threats. It is another small, but nevertheless crucial step towards a sustainable marine development

 

 

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Are we already witnessing the beginning of an international ocean administration?

IMO and regional organisations are not the only ones concerned with environmental consequences or likely to affect the marine environment. Various organisations are relevant as regards environmental implications. One of the most peculiar ones, the International Seabed Authority (ISA), was created by UNCLOS.

 

Margarete Hipp takes a look at the ISA and poses the question whether it marks the beginning of an international ocean administration. The organisation was founded to protect and manage the seabed and its resources. Interestingly, the seabed is not only relevant in terms of exploitation of minerals. It is also home to a great number of highly specialized and easily endangered species which are also considered living resources.

 

The ISA is based on the United Nations Convention on the Law of the Sea and on the Agreement on the Implementation of Part XI of the Convention. Margarete Hipp is trying to find an answer to the question posed at the beginning by taking a look at the origins and the development of the Authority: from first ideas in 1967, when diplomats were trying to find a fair possibility to share the resources of the oceans until the early 1990s and the UN Conference for the Environment and Development held in Rio de Janeiro when the concept of sustainability was developed. Margarete Hipp gives an impression of the disputes before the ISA could finally start working, the interests of the parties being involved in them and the changes of the ISA that followed. She questions whether the present ISA goes along with the ideas of fair sharing and sustainability since the industrialized countries enjoy a privileged position.

 

Margarete Hipp rejects arguments that the ISA creates only bureaucracy, although the exploitation of resources on the seabed has not yet begun - and one hardly can predict when it might begin. She concludes that its establishment will turn out necessary in the future, especially with regard to the protection of the marine environment and the promotion of a sustainable use of the resources on the seabed.

The question of the ISA being the beginning of an international ocean administration is answered with a definite yes, even though there still is a long way to go.

 

 

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Do we need a global organization for the protection of the marine environment?

Ling Zhu concerns herself with the question whether a global organization is needed in order to enhance the protection of the marine environment and contribute to sustainability.

 

Both the IMO and UNEP (United Nations Environment Programme) are relevant with regard to the protection of the marine environment on a worldwide scale. Part XII of UNCLOS lays down a well-balanced legal basis for the protection and use of the resources of the oceans. However, a consistent enforcement requires close cooperation between states. This requirement is not always met.

 

UNEP has launched “Regional Sea Programmes” which are in line with Part XII of UNCLOS. Such regional approaches, as e.g. the above-mentioned programmes, OSPAR and HELCOM, are considered quite effective.

 

It has been proposed to strengthen the role of UNEP, especially in financial terms. This can be regarded as evidence that the need for a more coordinated protection of the marine environment has been internationally recognized. Ling Zhu presents an example how such an “international environmental governance” could be introduced: The Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (GPA) which aims at preventing the degradation of the marine environment from land-based activities. It is designed to assist States in taking actions individually or jointly and helping them to develop and review national action programmes regularly. Although the GPA remains a voluntary and non-binding agreement, Ling Zhu considers it a useful instrument towards a more sustainable marine development.

 

However, she doubts that such programmes should or could replace a coherent system since a multitude of these programmes could lead to a fragmentation of the protection of the marine environment. On the other hand, it is clear that something must be done: The situation of the marine environment is deteriorating despite the existence of often sophisticated and developed instruments on all levels. She identifies two main problems of the existing system: first, there is a lack of coordination among the institutions; second, the developing countries do not have the capacity to participate in the growing number of bodies with environmental competencies.

 

Ling Zhu suggests to maximize the efficiency of the existing structure, that is, to promote the implementation of UNCLOS and to strengthen the role of UNEP. The idea of a new “World Environmental Organization” is regarded as mainly creating new bureaucracy without adding anything substantial towards the implementation of sustainability.

 

 

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What role does the EU play? Does it constitute a “Maritime Super Power”?

Until recently, marine environmental protection took mainly place on two levels: Firstly, the domestic one, where states tried to protect their internal waters and, to some extent, the territorial sea from pollution and other negative impacts. Secondly, the international one, where states agreed on common, global standards and rules in order to protect the marine environment beyond their jurisdiction.

 

A new player has emerged with the European Union taking to the seas. Catastrophes such as the casualty of the “Prestige” have urged the EU to find a common response to environmental threats. This response has gained much impetus and sometimes even gets into conflict with the international regulations laid down by the IMO. The EU quickly adopted new shipping security rules, which regarding the ban on “single-hull tankers” went beyond the international provisions. Hence, sustainable marine development clearly has become an issue for the European Union.

 

Wioletta Brandt takes a closer look at these sometimes politically delicate developments. She elaborates on the so-called Maritime Strategy which comprises a wide range of policies and legislative measures planned by the EU. The Maritime Strategy tackles not only pollution by ships but also land-based pollution since eutrophication is one of the most significant causes for marine pollution. The strategy aims at ensuring the maximum on environmental protection while retaining a maximum of economic output at the same time. A closer coordination and an integrated policy on the EU level are deemed necessary. Wioletta Brandt takes the opinion that only sustained planning can ensure a long term steady economic output, which has only recently been recognized by the EU policy. However, not everything is new in the Maritime Strategy, as the European Commission propagates the implementation of already existing regulations in the first place.

 

The creation of the European Maritime Safety Agency (EMSA) has been established to ensure the communication between the bodies involved. Its main objective is to provide technical and scientific assistance to Member States and the EU Commission.

 

Wioletta Brandt explores in detail the EU safety measures for oil tankers and raises the question whether they comply with international law. However, she also claims that the aims of the United Nations Convention on the Law of Sea and the new Maritime Strategy are very similar. She criticises that the present strategy paper does not encompass the integrated approach that is required. The emphasis has, as she puts it, not to be laid on gathering more information but on the implementation of clearly formulated and coherent goals. The present Strategy does not contain many concrete figures.

 

These shortcomings apply especially to problems such as the overfertilization in the agricultural sector. Wioletta Brandt takes the view that without changes into this direction the Maritime Strategy would mean little progress in terms of a sustainable marine development. In her opinion a more active role of the EU within the IMO is necessary, too.

 

 

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How to get reliable and worldwide information on the state of the oceans: Organising a global ocean observation system

Tatjana Ilyina deals with the Global Ocean Observing System (GOOS) which is set up to learn more about the oceans in a systematic and comprehensive way. It is supposed to collect the information needed by governments, industry, science and the public to deal with marine related issues, including the effects of the ocean on the climate. There is growing awareness that hydrographic data are playing an increasingly important role in a number of fields, e.g. in the coastal zone management. Information on the sea state is also relevant in order to control and mitigate natural hazards. It has been shown that climatic factors have a major influence on the emergence and re-emergence of infectious diseases, particularly those that are transmitted by insect bites. Such data are also needed to study human impacts on the seas and are crucial for a more sustainable marine development.

 

Global observing systems have been designed prior to GOOS, for instance the World Wide Weather Watch of WMO. However, the unique idea behind the GOOS is an integrated, hierarchical structure of networks including synoptic remote and in situ sensing, data dissemination, visualisation and prediction. It is an international platform for the distribution of oceanographic data and services. GOOS unites the main global observing sub-systems and includes measurements from ships, buoys, coastal stations and satellites. Such observational systems are able to perform routine measurements of sea surface height, temperature and salinity, winds, sea ice, ocean colour, precipitation, cloud cover and aerosols.

 

One of the different programmes supported by GOOS is called ARGO. Still being in the implementation phase, it will finally consist of 3.000 free-drifting profiling floats measuring the temperature and salinity of the upper 2000 meter of the ocean. This will allow, for the first time, continuous monitoring of these parameters, with all data available within hours after collection.

 

The legal basis is defined by various international conventions and action plans, including the UN Convention on the Law of the Sea, the International Convention for the Safety of Life at Sea (SOLAS), the Framework Convention on Climate Change and Agenda 21.

 

Financial support is a problem since GOOS is to a large extent financed by research budgets. Tatjana Ilyina is of the opinion that more support at the national level is needed. She makes it clear that such a project as the GOOS can contribute to the sustainable development of the oceans as it promotes an effective ocean management. Tatjana Ilyina criticises that there is no legally binding convention covering the subject and therefore, the economical assessment is very important: States will spend more money for the project if they can be sure that they will benefit in an economical sense. As the whole project is still at an early stage, not too much can be said about the possible outcome of the GOOS.

 

 

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A look at the regional level: Sustainable development through the management of fisheries in the Baltic Sea?

Christine Röckmann explores the management of living resources at a regional level in the Baltic Sea.

 

The complexity of the political and ecological situation in this area calls for strong international cooperation in order to achieve economically and socially sustainable, environmentally safe fisheries. Management needs to be flexible to allow for direct reactions and adjustments in case of any natural or anthropogenic adverse impacts. At the same time, a minimum of income stability from the transboundary fish resources in the Baltic Sea should be guaranteed to local fishing communities.

 

Christine Röckmann analyses the past, present and future situation of fisheries management in the Baltic Sea. Emphasis is put on the functioning of the European Community’s Common Fisheries Policy (CFP). In order to achieve sustainable fisheries, the conservation of stocks is of prime importance. The new CFP as of December 2002 provides for this objective by introducing long-term management and recovery plans, emphasising the necessity of a healthy marine ecosystem, and allowing for flexible management tools. It is therefore concluded that Baltic Sea fisheries management is likely to benefit, if the opportunities for improvement, which the new CFP regulation has enshrined, are realised.

 

 

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Another example of international cooperation and its perspectives: The Lighthouse authorities

The need for international standards and regulations has become particularly apparent in the last decades due to the increasing traffic on the oceans. But who cares about the technical details which are necessary to issue recommendations and set binding standards? Who gathers technical information and expertise about recent developments?

 

The “International Association of Marine Aids to Navigation and Lighthouse Authorities”, (IALA) is a non-profit organisation which deals with harmonising aids to navigation on a global basis to ensure the safe movement of vessels. One of its tasks is the development of navigational systems which may also foster environmental protection and therefore a more sustainable use of the oceans.

 

Alexandra Hunstig explores the work, structure and legal nature of this organisation.

 

Radio aids, visual aids, support services, the Vessel Traffic Services (VTS) and other matters fall within the work field of the IALA. It develops guidelines that are either supplementing recommendations or provide advice and guidance on new technologies. In order to make these guidelines binding, they have to be adopted by the IMO. This was the case with the IALA buoyage system, which provided for a harmonisation of bouys.

 

Apart from a General Assembly and a council, the IALA features committees which address different issues, such as the Automatic Identification System (AIS) for ships, aids to navigational management, radio navigation and VTS, which permits to monitor and improve the flow of the traffic at sea by giving information and advice to ships within their area of jurisdiction. VTS thus prevents collisions and marine incidents resulting in marine pollution.

 

The legal nature of the IALA is particularly interesting as it considers itself a Non-governmental organisation. It does not consist of private citizens or corporate bodies alone, though. Indeed, the IALA was founded by the national lighthouse authorities which are still present within the organisation and enjoy the same rights as the other members. Alexandra Hunstig qualifies the organisation therefore as a ministerial inter-governmental organisation. She also poses the question whether the industrial members involved in the work of the committees, e.g. companies designing marine aids, might prevent the introduction of navigational aids if they prove to be to costly.

 

Alexandra Hunstig concludes that the marine environment benefits from IALA enhancing maritime safety, although promoting sustainability might not have been one of the original tasks of the organisation.

 

 

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Sustainability needs legal development: What does the International Tribunal for the Law of the Sea offer in this respect?

Sicco Rah and Tilo Wallrabenstein explore the role of the International Tribunal for the Law of the Sea (ITLOS) which is supposed to be one of the cornerstones of the international dispute settlement system. Its competence also covers disputes having an environmental character.

 

However, some critics consider the position of the Court comparably weak, since most disputes are settled by arbitral courts, which are set up by the states involved in the conflict, or the International Court of Justice (ICJ). Sicco Rah and Tilo Wallrabenstein argue that arbitration is obviously favoured by the overly complicated dispute settlement system which offers a wide choice of dispute settlement institutions. The only obligation states have to comply with is to settle their disputes peacefully and to use either the services of the International Court of Justice (ICJ), ITLOS or arbitral courts. Unless both parties of a dispute agree on ITLOS, they will go to an arbitral court. No choice is a choice for arbitration. And indeed, only few states have chosen ITLOS as a general choice.

 

With the multitude of alternatives established in UNCLOS states feel in control of the outcome. A phenomenon called “forum shopping” is the consequence of the current system: States choose the forum of dispute settlement which they think to be most favourable for their case.

 

But what have these procedural questions do to with sustainable marine development? From the authors´ point of view there are quite a lot of negative consequences aside the fact that resources of ITLOS remain unused:

 

The further development of the Law of the Sea through judicial decisions does not take place to the extent possible. Arbitral awards and (provisional) decisions of ITLOS might contradict each other, which further weakens the legal finding of the Tribunal. Not least, decisions of arbitral courts are less based on legal arguments.

 

Moreover, the international environmental protection cannot be strengthened by ITLOS if does not deliver judgements and orders in that respect. Sicco Rah and Tilo Wallrabenstein demonstrate that ITLOS has the potential to promote sustainable development. Many of the disputes submitted to ITLOS have had a strong environmental aspect which has not gone unnoticed by the Court. The precautionary approach has been taken into account several times by the ITLOS Judges. Another progressive feature of ITLOS is its theoretical openness towards non-state entities, e.g. NGOs. Hence, this capacity should be used in order to strengthen a sustainable marine development.

 

What can be done to improve the situation? A review of the dispute settlement system set out in UNCLOS even by means of the simplified procedure is very unrealistic due to the lack of support by the states parties to UNCLOS. A change of HELCOM and/or OSPAR involving the general submission of disputes to ITLOS seems not completely impossible because such an agreement could be reached perhaps more easily on a regional level.

 

In any case the awareness of the (environmentally) interested public should be increased with the aim to force states to bring disputes to ITLOS and deliver respective declarations 

 

 

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A whole range of issues has been explored by the participants who provide an insight into a variety of sometimes hardly known organisations and their tasks. It is hoped that the questions raised may initiate further discussions and more in-depth studies.

Above all, the seminar shows that the organisations examined have to be subject to changes if they want to cope with the challenges of a world which needs constant economic growth. Many different concerns have to be taken into account and have to be outbalanced.

 

Collaboration and cooperation between the states need to be further promoted. Nevertheless, the seminar leaves us with the knowledge that there are not only problems to be solved but also many hopeful approaches.

 

Further, international maritime organisations are increasingly aware that sustainable marine development must not remain a lip service but needs regulation and also enforcement. The current establishment of Particularly Sensitive Sea Areas (PSSAs) by the IMO reflects the growing readiness of its member states to contribute to the protection of the seas and foster sustainable development.

 

In spite of – and also because of - a worldwide difficult economic situation and growing international competition, sustainability must be promoted and implemented on all levels.

 

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