Abstract
This chapter considers legal, institutional and policy aspects concerning maritime activities. Following the Introduction, the chapter considers the legal and institutional framework established by the United Nations Convention on the Law of the Sea (UNCLOS). Then, it discusses the activities of the United Nations relating to maritime activities, in particular the work of the General Assembly, which is at the centre of policy-making relating to any activities in the oceans and seas, and the outcome of summits and conferences on sustainable development. This is followed by the discussion of other legal instruments and institutions related to the governance of maritime activities, as well as cooperation and coordination between relevant institutions. The chapter concludes with brief concluding remarks.
The views expressed in this chapter are those of the author and do not necessarily reflect those of the United Nations.
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Notes
- 1.
For example, the Integrated Maritime Policy of the European Union refers to a vision “for an integrated maritime policy that covers all aspects of our relationship with the oceans and seas” (European Commission (2007). Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, An Integrated Maritime Policy for the European Union, COM(2007) 575 final, p. 4).
- 2.
The concept “governance” is used by commentators in different ways. Rhodes (1996, p. 653) suggests that there are at least six different ways in which governance can be used. The concept “good governance”, which is increasingly used in discussion on “governance”, includes the rule of law, public participation, transparency, accountability, control of corruption and government effectiveness (Brown Weiss and Sornarajah 2009). See also International Law Association (2002). Resolution 3/2002, New Delhi Declaration of Principles of International Law Relating to Sustainable Development of 6 April 2002, available at http://www.ila-hq.org/en/committees/index.cfm/cid/25 and Kaufmann et al. (1999).
- 3.
On the concept of CSR, see chapter “The Perception of Corporate Social Responsibility in the Maritime Industry” of this book.
- 4.
United Nations Treaty Series (UNTS), vol. 1833, No. 31363.
- 5.
UN Doc. A/RES/71/257, preamble.
- 6.
“A Constitution for the Oceans”, Remarks by Tommy T.B. Koh, of Singapore, President of the Third United Nations Conference on the Law of the Sea, available at: http://www.un.org/depts/los/convention_agreements/texts/koh_english.pdf.
- 7.
See Final Act of the Third United Nations Conference on the Law of the Sea, available at: http://www.un.org/depts/los/convention_agreements/texts/final_act_eng.pdf.
- 8.
- 9.
Under UNCLOS, the “Area” means the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction. UNLOS, article 1(1)(1).
- 10.
Ibid., article 3.
- 11.
Ibid., article 57.
- 12.
Ibid., article 77.
- 13.
Ibid., article 76.
- 14.
Ibid., article 86.
- 15.
Ibid., article 136. For the purposes of Part XI of UNCLOS, “resources” means all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules. Ibid., article 133(a).
- 16.
See ibid., article 8.
- 17.
Ibid., article 53.
- 18.
Ibid., articles 17–21.
- 19.
Ibid., articles 37–42.
- 20.
Ibid., articles 58 and 87.
- 21.
Ibid., article 92.
- 22.
For example, ibid., articles 192–193.
- 23.
Ibid., Sections 5–6 of Part XII.
- 24.
Ibid., articles 211(5)–(6) and 220(3)–(8).
- 25.
Ibid., Sections 1–2 of Part XV.
- 26.
Ibid., article 287.
- 27.
Ibid., article 153(1) provides: Activities in the Area shall be organized, carried out and controlled by the Authority on behalf of mankind as a whole in accordance with this article as well as other relevant provisions of this Part and the relevant Annexes, and the rules, regulations and procedures of the Authority.
- 28.
ISA, “The Mining Code”, available at: https://www.isa.org.jm/mining-code. Currently, a regulatory framework for mineral resource exploitation is being considered at the ISA.
- 29.
ISA, “Environmental management plan for the Clarion-Clipperton Zone”, available at: https://www.isa.org.jm/environmental-management-plan-clarion-clipperton-zone.
- 30.
ISA, “Overview”, available at: https://www.isa.org.jm/deep-seabed-minerals-contractors/overview.
- 31.
ITLOS was established under Annex VI of UNCLOS.
- 32.
Ibid., articles 290 and 292.
- 33.
Ibid., Annex II, article 2(1).
- 34.
Ibid., Annex II, article 3(1).
- 35.
See CLCS website, available at: http://www.un.org/depts/los/clcs_new/commission_submissions.htm.
- 36.
- 37.
See, e.g., Report of the twenty-fifth Meeting of States Parties, New York, 8-12 June 2015, SPLOS/287, available at: http://www.un.org/ga/search/view_doc.asp?symbol=SPLOS/287, para. 81: “Divergent views were expressed concerning the mandate of the Meeting of States Parties to discuss matters of a substantive nature relating to the implementation of the Convention. Some delegations indicated that the Meeting had the mandate to consider all issues pertaining to the application and implementation of the Convention. Other delegations were of the view that the Meeting should limit itself to the consideration of financial and administrative matters relating to the bodies established by the Convention, namely, [ITLOS, ISA and CLCS], as prescribed under the Convention. In that connection, some delegations emphasized that the Meeting should not be regarded as a forum for discussion and resolution of bilateral disputes concerning the application and interpretation of the Convention.” Some parties have also expressed similar views at the twenty-sixth Meeting of States parties in 2016. Report of the twenty-sixth Meeting of States Parties, 20–24 June 2016, SPLOS/303, available at: http://www.un.org/ga/search/view_doc.asp?symbol=SPLOS/303, para. 92.
- 38.
UNTS, vol. 1836, No. 31364.
- 39.
Ibid., vol. 2167, No. 37924.
- 40.
- 41.
Part XI Agreement, article 4.
- 42.
For the status of treaties deposited with the Secretary-General of the United Nations, see the website of the Treaty Section of the Office of Legal Affairs, at https://treaties.un.org/Pages/ParticipationStatus.aspx?clang=_en.
- 43.
UNCLOS, articles 63(2) and 64.
- 44.
Ibid., articles 116–119.
- 45.
Final Act of the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, A/CONF.164/38, available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/N95/272/03/PDF/N9527203.pdf?OpenElement.
- 46.
See, e.g., United Nations Fish Stocks Agreement, articles 5–6 and Annex II.
- 47.
E.g., ibid., article 8.
- 48.
Ibid., article 7.
- 49.
Ibid., articles 18–23.
- 50.
Ibid., articles 24–26.
- 51.
Ibid., articles 27–32.
- 52.
- 53.
For information on the Conference and its recommendations, see http://www.un.org/Depts/los/convention_agreements/review_conf_fish_stocks.htm.
- 54.
Information on the Working Group is available at: http://www.un.org/depts/los/biodiversityworkinggroup/biodiversityworkinggroup.htm.
- 55.
UN Doc. A/RES/69/292, para. 1.
- 56.
Ibid., para. 1(a).
- 57.
Ibid., para. 2.
- 58.
Sections A and B do not reflect consensus (para. 1). For the recommendations, see para. 38 of the Report of the Preparatory Committee established by General Assembly resolution 69/292: Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. The Advance, unedited version of the report is currently available at: http://www.un.org/Depts/los/biodiversity/prepcom_files/Procedural_report_of_BBNJ_PrepCom.pdf.
- 59.
General Assembly resolution 69/292, in para. 1(k), reads: “Decides that, before the end of its seventy-second session, and taking into account the aforementioned report of the preparatory committee, it will decide on the convening and on the starting date of an intergovernmental conference, under the auspices of the United Nations, to consider the recommendations of the preparatory committee on the elements and to elaborate the text of an international legally binding instrument under the Convention.”
- 60.
UNTS, vol. 1760, no. 30619.
- 61.
Ibid., vol. 993, no. 14537.
- 62.
For a list of competent/relevant international organizations in relation to UNCLOS, see ““Competent or relevant international organizations” under the United Nations Convention on the Law of the Sea”, Law of the Sea Bulletin, No. 31 (1996), pp. 79–95. However, it should be noted that, after the preparation of this list, a number of new bodies have been established.
- 63.
UNTS, vol. 1184, No. 18961.
- 64.
Ibid., vol. 1340, No. 22484.
- 65.
Ibid., vol. 1361, No. 23001.
- 66.
See, e.g., Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization: Study by the Secretariat of the International Maritime Organization (IMO), LEG/MISC.8, available at: http://www.imo.org/en/OurWork/Legal/Documents/LEG%20MISC%208.pdf.
- 67.
UNCLOS, article 211(5).
- 68.
Ibid., articles 207(1) and 212(1).
- 69.
Ibid., article 211(2).
- 70.
Ibid., articles 208(3) and 209(2).
- 71.
The singular term “the competent international organization” in this context is widely recognized to mean the IMO. See, e.g., LEG/MISC.8, p. 7.
- 72.
On the work of these bodies, see http://www.un.org/depts/los/. In addition, while UN-Oceans (see below) was not established by the General Assembly, its revised Terms of Reference have been approved by the General Assembly in its resolution 68/70. Furthermore, it should be noted that the General Assembly has been addressing the impacts of bottom fisheries on vulnerable marine ecosystems and the long-term sustainability of deep-sea fish stocks since 2004, through recurring reviews of actions taken by States and regional fisheries management organizations and arrangements (RFMO/As).
- 73.
For the core functions of DOALOS, see Secretary-General’s bulletin, Organization of the Office of Legal Affairs, ST/SGB/2008/13, available at: http://legal.un.org/ola/media/st-sgb-2008-13.pdf.
- 74.
See S/RES/1816 (2008) and subsequent resolutions.
- 75.
See S/RES/2240 (2015).
- 76.
- 77.
UN Doc. A/RES/70/1.
- 78.
- 79.
http://www.un.org/esa/sustdev/documents/WSSD_POI_PD/English/WSSD_PlanImpl.pdf (in particular, paras. 30–36).
- 80.
UN Doc. A/RES/66/288, Annex.
- 81.
For the Report of the Open Working Group of the General Assembly on Sustainable Development Goals, see A/68/970.
- 82.
On the intergovernmental negotiations, see https://sustainabledevelopment.un.org/post2015/negotiations.
- 83.
A/RES/71/313; E/RES/2017/7.
- 84.
A/RES/70/226.
- 85.
Para. 13.
- 86.
See A/CONF.230/14 (advance unedited version is available at: https://oceanconference.un.org/).
- 87.
A/RES/70/1, paras. 47 and 82.
- 88.
A/RES/70/299, para. 5. Means of implementation, including with respect to Goal 17, are reviewed annually. Para. 4.
- 89.
Currently available as E/2017/L.29–E/HLPF/2017/L.2.
- 90.
Region-specific instruments also exist, e.g., the Polar Code, which was made mandatory under SOLAS and MARPOL.
- 91.
See Marrakesh Agreement establishing the World Trade Organization, UNTS, Vol. 1867, No. 31874.
- 92.
See http://www.unoceans.org. The United Nations Legal Counsel/DOALOS functions as the focal point of UN-Oceans. The revised terms of reference for the work of UN-Oceans were approved by the General Assembly in its resolution 68/70 in 2013. These terms of reference are scheduled to be reviewed by the General Assembly at its seventy-second session in 2017. See A/RES/71/257, para. 346.
- 93.
- 94.
Examples include the Regional Fishery Body Secretariats Network (RSN) (see http://www.fao.org/fishery/rsn/en) and joint meetings of tuna RFMOs (see http://www.tuna-org.org/).
- 95.
See, e.g., cooperation between the North-East Atlantic Fisheries Commission (NEAFC) and the OSPAR Commission (for example, the MOU, available at: http://www.neafc.org/system/files/opsar_mou.pdf). In addition, it is noted that the Sustainable Ocean Initiative (SOI) Global Dialogue with Regional Seas Organizations and Regional Fisheries Bodies on Accelerating Progress Towards the Aichi Biodiversity Targets was convened by the CBD Executive Secretary in September 2016. See https://www.cbd.int/doc/?meeting=SOIOM-2016-01.
- 96.
- 97.
- 98.
See A/71/351 and preceding reports of the Secretary-General on this issue.
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Takei, Y. (2018). Governance of Maritime Activities: Legal, Policy and Institutional Aspects. In: Froholdt, L. (eds) Corporate Social Responsibility in the Maritime Industry. WMU Studies in Maritime Affairs, vol 5. Springer, Cham. https://doi.org/10.1007/978-3-319-69143-5_4
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