The "Other" Law of the Sea
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There are many multilateral treaties that fill in the UNCLOS framework. These instruments are widely accepted and implemented, and they promote order and the free flow of commerce by prescribing universal standards for vessel construction, operation, and management, for the training and qualification of mariners, and the like. In accordance with the 1982 United Nations Convention on the Law of the Sea, they assign compliance responsibility to flag states.However, in the spirit of "trust but verify," they contain real enforcement mechanisms that enable coastal and port states to safeguard their vital interests, even in the face of occasionally lackadaisical flag-state oversight. Taken together, this "other" law of the sea serves a valuable purpose, the promotion of vessel safety and security and environmental stewardship. Statistics suggest that it is achieving its goals.
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Finally, the "other" law of the sea, like UNCLOS, consists of treaties that are notionally binding only on signatory states. Thus, theoretically, nonsignatory nations do not have to comply with their standards, and coastal/port states cannot formally utilize the specific provisions of these treaties when taking, or anticipating the need to take, control actions aboard vessels of nonsignatory states. But the reality is that the vast majority of nations in general, and flag states in particular, have adopted them. A very few vessels flagged by nonsignatory states do engage in international trade; it can certainly be argued, however, that many of the provisions of the supplementary instruments are so widely adhered to that they have acquired the status of customary international law, binding for those states too, if they have not expressly "opted out." This argument, coupled with UNCLOS's grant of authority to port/coastal states to ensure foreign vessel adherence to "other rules of international law" and "generally accepted international rules or standards," gives such states significant clout over vessels flagged by states that have not specifically adopted those rules and standards.43
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UNCLOS relies for these purposes on dozens of such conventions, but this article will focus on five that are particularly significant and wide-ranging: the International Convention for the Safety of Life at Sea (the SOLAS Convention); the InternationalManagement Code for the SafeOperation of Ships and for Pollution Prevention (ISM Code); the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW Convention); the International Convention for the Prevention of Pollution from Ships (MARPOL Convention); and the International Ship and Port Facility Security Code (ISPS Code).
Before turning to the specifics, however, a few background topics need to be discussed. The first of these is the "organization that has probably had the most substantial direct effect on the law of the sea"-the International Maritime Organization. 39 The IMOis the "United Nations' specialized agency with responsibility for the safety and security of shipping and the prevention of marine pollution by ships."40 The convention establishing the IMOwas adopted in 1948 and came into effect in 1958; the IMO's first meeting was held in 1959.Most of its work is done in committees, including the Maritime Safety Committee, the Marine Environment Protection Committee, and the Legal Committee. These bodies identify needs for new conventions or for amendments to existing ones. All of the important conventions to be discussed in this section were adopted under the auspices of the IMO, which today oversees the process of keeping these conventions abreast of developments in maritime and related industries.
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UNCLOS is, in many respects, an amazing treaty. Hailed as "possibly the most significant legal instrument of [the twentieth] century,"UNCLOS strikes a delicate balance between freedom of navigation and utilization of the oceans on the one hand, and on the other, sovereign rights and control over the ocean and its resources.1 It solves long-standing issues that had proved to be intractable (e.g., the allowable breadth of the territorial sea) and creates new legal regimes to reflect evolving state practice (such as the exclusive economic zone). Against a backdrop of overweening national self-interest, it achieves a remarkable degree of consensus and compromise in areas that significantly impact national sovereignty and sovereign rights, particularly over resources-matters that have historically caused nations to go to, or threaten, war.2