The ocean governance system for shipping and navigation is diffuse. It comprises numerous articles of the United Nations Convention on the Law of the Sea, 1982, as well as a series of Conventions adopted by the International Maritime Organisation (IMO), the United Nations Conference on Trade and Development (UNCTAD), the International Labour Organization (ILO) and the World Health Organisation (WHO). It would in any case have been advisable to review, collate and harmonize this variegated legislation. Some scholars¹ have gone so far as to suggest that a new Convention on Shipping is needed.

　

　　In the present situation it appears to be more urgent than ever to undertake some form of action because, during the last decades the shipping industry has gone through such fundamental changes that much of the existing legislation has become obsolete.

　

　　This paper will present, first, a general assessment of the economic importance and financial value of shipping in the world in general, and in Asia Pacific in particular. This will be followed by an overview of existing legislation. A brief analysis of deficiencies and gaps will then be attempted, and, fourthly, some suggestions for changes will be made. These are envisaged in the form of a Protocol, or Implementation Agreement, to the Law of the Sea Convention, rather than a new Convention, to facilitate harmonization, adoption, ratification and implementation.

World sea-borne trade recorded a high of 5.23 billion tons in 1999.² And the world merchant fleet expanded to 799 dwt.³ The total value of shipping in 1999, based on import freight payments, was US$285 billion. The ASEAN share of this was US$ 20.5 billion. Further details are summarised in the following tables.

　

　

　

　

　　The following tables provide an outline of the importance of seaborne trade transiting through South East Asia's main SLOCs, including the Straits of Malacca, Sunda and Lombok as well as the sea lanes of the Spratly Islands.

　It is important to note, as will be discussed infra, that these SLOCs are increasingly prone to acts of piracy and armed robbery at sea. As the data in the following tables illustrates, such criminal acts may have considerable economic consequences which spread well beyond the region in question.

　

　

　

　

　

　

Simplifying a complex situation, one could describe the legal framework of ocean governance with regard to shipping in the following way: The substantive and growing body of IMO legislation concerns the safety of ships and the protection of the marine environment from ship-borne pollution. Equally important has been the contribution of UNCTAD, focussing on the economic aspects of shipping, often in cooperation with IMO. More limited roles are played by ILO and WHO, while the Law of the Sea Convention provides the over-all framework. The shipping-related Articles of that Convention were drafted to accord with the existing conventions of these Specialized Agencies and Conferences and to accommodate their further evolution. Especially IMO is referred to, throughout the Convention, as (the competent international organisation.⁴

　

IMO Legislation is embodied, above all, in the following Conventions:

　

X International Convention for the Safety of Life at Sea, 1974, dealing with details of structural stability, fire protection and detection; life-saving appliances and arrangements; navigational aids; carriage of dangerous goods; safety measures for high-speed craft, nuclear ships, etc;

　

X International Convention on Load Lines, 1966, establishing limitations on the draught to which a ship on international voyages may be loaded in the form of freeboards which should ensure stability and avoid excessive stress on the ship=s hull as a result of overloading. It also deals with external weathertight and watertight integrity and provisions are made for determining the freeboard of tankers by subdivision and damage stability calculations;

　

X International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978. This deals with pollution by oil, by noxious liquid substances in bulk; harmful substances carried by sea in packaged form; sewage from ships; garbage from ships and air pollution from ships;

　

X International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1987, contains extensive certification and qualification requirements including syllabi and sea time for senior officers in charge of watches and for ratings forming part of the watch. All such seafarers are required to have a certificate, endorsed in a uniform manner;

　

X International Convention on Tonnage Measurement of Ships, 1969, establishing uniform principles and rules with respect to the determination of the tonnage of ships engaged in international voyages;⁵

　

The most important UNCTAD legislation includes:

　

X Convention on a Code of Conduct for Liner Conferences, adopted in 1974, entered into force in 1983. The code was to:

　

　

X The UN Convention on the Registration of Ships, 1986. This was to contribute to the eventual elimination of substandard ships, strengthening the control of flag States through the 'genuine link' between the ship, its owner and crew, and the State under whose flag the ship sails.

X The United Nations Convention on Arrest of Ships, 1999. The Convention aims at providing a widely acceptable legal instrument promoting international trade and transport, by striking a balance between the interests of the owners of cargo and of ships in securing the free movement of ships and the right of the claimant to obtain security for his claim;⁷

　

X International Convention on Maritime Liens and Mortgages, 1993. This Convention is the newest version of two previous international conventions signed in 1926 and 1967. It aims at harmonizing national laws relating to maritime securities; it does not apply to seagoing vessels owned or operated by a State only for non-commercial purposes;⁸

　

X United Nations Convention on the Carriage of Goods by Sea (Hamburg Rules), 1978. Hamburg Rules adopted a new approach to cargo liability whereby the carrier is held responsible for the loss of or damage to goods whilst in their charge, unless they can prove that all reasonable measures to avoid damage or loss were taken. Carrier liability is extended to reflect the different categories of cargo now carried, new technology and loading methods, and other practical problems incurred by shippers such as losses incurred through delays in delivery;⁹ and

　

X UN Convention on Multimodal Transport, 1980. The purpose of a multimodal convention is principally to deal with the advent of multimodal door-to-door container shipping practices, and to provide for adequate compensation in cases where damage occurred, but the transport mode on which it occurred cannot be determined.¹⁰

　

　　ILO, furthermore, has adopted more than 30 Conventions and 20 Recommendations setting labour standards specifically for the maritime sector. Workers (seafarers), employers (ship-owners) and Governments participate in the elaboration and adoption of maritime standards, along with a standing bipartite (ship-owners and seafarers) Joint Maritime Commission which advises the Governing Body of the ILO. The basic Convention is ILO Convention No. 147, AMerchant Shipping Minimum Standards Convention, 1976 and its Protocol of 1996, in which specific reference is made to the Law of the Sea Convention. In their Preambles both the UN and ILO have reiterated that maritime labour standards are a component of safety at sea and the protection and preservation of the marine environment, and as such form an integral part of the Law of the Sea.

　

　　IMO and ILO cooperate on questions of crew training and certification as well as problems such as alcohol and substance abuse by seafarers. ILO and The World Health Organization (WHO) cooperate on questions concerning seafarers= health, including the problems of HIV and AIDS as well as specialized medical examinations required to determine physical fitness for service at sea. WHO conducts inspections hygienic and health conditions on cruise ships.

　

　　Numerous Articles of the Law of the Sea Convention (LOSC) concern the rights and duties of ships in various jurisdictional zones (territorial sea, contiguous zone, EEZ, archipelagic waters, High Sea, straits used for international navigation); sea lanes and traffic separation schemes; criminal and civil jurisdiction on foreign ships; rules applicable to warships; piracy, hot pursuit, enforcement with respect to pollution by dumping; enforcement by flag States coastal States and port States; measures relating to seaworthiness of vessels to avoid pollution.

　

　　These Articles largely reflect customary law as codified in the 1958 Geneva Conventions (UNCLOS I), but there are some important innovations.

　

　　“Innocent Passage” has been more carefully, although not perfectly, defined. Article 19, Meaning of innocent passage, really does not define what innocent passage is: rather, it attempts a definition of what is not innocent passage [Art. 19(a)(l)], and this definition is not exhaustive. The list of activities which make passage nocent ends with an open-ended phrase, Aany other activity not having a direct bearing on passage.

　

　　New is the concept of Atransit passage through straits used for international navigation, which, in some ways, grants high-seas freedoms to ships in a zone which, with the expansion of the limits of the territorial sea from 3 to 12 miles, would have fallen under the regime of innocent passage. ATransit passage means that vessels may move in their Anormal mode - i.e., submarines need not surface or show their flag. ATransit passage, unlike innocent passage,(cannot be suspended under any circumstances. This was the price coastal States had to pay for the provision extending the territorial sea from 3 to 12 miles. It was part of the Amini-package enabling UNCLOS III to reach agreement on the limits on the territorial sea, which had eluded UNCLOS I and II.

　

　　Archipelagic Sea-lane passage is another new concept, related to that of transit passage. New, insofar as the whole concept of archipelagic States and archipelagic waters had not yet been recognized by international law in 1958.

　

　　New also are most of the provisions on pollution from vessels. International environmental law was embryonic in 1958. It has grown and flourished during the past 30 years, in the wake of the Stockholm Conference on the Human Environment, 1972. The Articles on pollution from ships accord with the growing body of laws and regulations produced by IMO.

　

　　By far the most important and seminal innovation, however, is the introduction Aof port state control (PSC). Reliance on the efficacy of Aflag State control in the enforcement of rules, regulations and standards was already being eroded in the 1970s by the growing number of ships registered under flags of convenience by States unable to exercise any control whatsoever over ships flying their flags. Coastal States claimed the right to protect their coasts and coastal waters from pollution by foreign ships. These rights, including the right to information, to inspection and detention, are defined in Article 220 of the Convention.

　

　　“Port State control” is defined in Article 218. It empowers the port State to take action against a vessel that is voluntarily within one of its port or off-shore terminals, where there is suspicion that that ship has violated environmental laws on the high seas as well as under the jurisdiction of another State, if that State so requests.

　

　　Article 218 has given rise to a series of Memoranda of Understanding (MOU) on Port State Control, including one in the Asia-Pacific region, which may assume great importance during this century.

　

　　Under the 1982 Convention, enforcement by Port States, as well as Coastal States extends only to the protection of the environment against pollution from ships. The Agreement for the Implementation of the Provisions of the Convention Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Astraddling stocks agreement) of 1995 extends Port State control also to act on violations of fisheries regulations.

　

　　The series of regional Port State Memoranda of Understanding,¹¹ finally, extends control of compliance with a whole range of conventions relating to the safety of ships, the elimination of sub-standard ships, the qualification of officers, the protection of the environment and of the well-being and health of crews.

　

　　The MOUs specify structure of governance, including the establishment of information centres, Committees, Secretariats, the qualification and appointment of inspectors, the basis on which inspections are to take place, the target number of inspections, the number of conventions to be complied with (usually at least half a dozen), and lists of ships to which special attention should be given (e.g., ships which have been reported by pilots or port authorities as being deficient; ships carrying dangerous or polluting goods which have failed to report relevant information, etc.).

　

　　The Conventions that have to be complied with are, above all, the International Convention for the Safety of Life at Sea (SOLAS 74); International Convention on Load Lines (LL 66); International Convention for the Prevention of Pollution from Ships, as modified by the Protocol of 1978 (MARPOL 73/78); the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STEW 78); as well as the ILO Conventions, especially No. 147, Merchant Shipping Minimum Standards Convention, 1976 and its Protocol of 1996.

　

　　The status of a certain number of these Conventions is outlined in the table below.

　

　

　　Regional Port States MOUs stress that the primary responsibility for compliance with and enforcement of the relevant conventions and standards rests with the flag State, with the port State regimes providing a secondary line of defence to check that the rules are properly applied and put into practice on board the ships.

　

　　As pointed out by the Secretary-General of the IMO,¹³ the progress already made by the principal port State control agreement for the Asia-Pacific region, the Tokyo MOU, has laid a firm foundation and is already having an impact on the quality of ships calling at ports in the region. It is interesting to note that the Tokyo MOU became effective in 1994, and by 1999 the number of annual inspections had reached 14,921 - some 61 percent of the ships operating in the region. No fewer then 50,136 deficiencies were discovered, and 1,071 ships were detained. Each one represents a small but significant tightening of the safety net and a potential disaster possibly having been averted.

　

　

　　That certainly is a remarkable record. Globally, the port State control system is an outstanding example for the operational integration of various Convention regimes in a regional context. This, as we have shown elsewhere¹⁵ is an essential next step towards comprehensive ocean governance.