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Rules of Reference in the new Convention on the Law of the Sea, in particular in connection with the pollution of the sea by oil from tankers*

Published online by Cambridge University Press:  07 July 2009

W. van Reenen
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The Draft Convention on the Law of the Sea (hereafter referred to as “the Draft Convention”) includes provisions which refer to rules of public international law but which give no indication of either their content or their source. In this paper these provisions are called “rules of reference”. This reference does not mean that the application of the projected Convention itself is overridden by the rules of reference indicated. On the contrary, the indicated rules are incorporated into the projected Convention by reference, as is demonstrated in section 3 infra.

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Articles
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Netherlands Yearbook of International Law , Volume 12 , December 1981 , pp. 3 - 44
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Copyright © T.M.C. Asser Press 1981

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References

1. UN Doc. A/Conf. 62/WP 10/Rev. 3 (27 August 1980).

2. Drafting Committee, Informal Paper 2 (8 August 1978): A Preliminary list of Recurring Words and Expressions in the ICNT Which May be Harmonized.

3. Such as other aspects of the protection of the marine environment, e.g., provisions against dumping, and against pollution from land-based sources. Other examples are safety at sea, navigation rules and working conditions on board, to the extent that these subjects are not indirectly relevant to our subject.

4. The point of departure could also have been that some of the material dealt with in the Draft Convention, e.g., the section on the protection of the marine environment, has already developed into customary law. As regards some of the regimes dealt with in the Draft Convention, it might already be possible to qualify these as emerging customary law. The preference for the hypothesis of the Convention having entered into force, is due, inter alia, to the consideration that this hypothesis provides a simpler model for the approach adopted in this paper.

5. For the fragility of the consensus reached after eight sessions of the Conference regarding the text of the ICNT in its entirety, see, Oxman, Bernard H., “The Third United Nations Conference on the Law of the Sea: The Eighth Session (1979)”, 74 AJIL (1980) pp. 147, at pp. 46–7CrossRefGoogle Scholar. The ninth session in 1980 seems to have resulted in a more solid consensus.

6. A high degree of consensus on the text of these articles has already been achieved. See Claude, Douay, “Le Droit de la Mer et la Préservation du Milieu Marin”, 84 RGDIP (1980) pp. 178–215, at p. 179Google Scholar

7. UN Doc. A/Conf. 39/27; also Trb. 1972, No. 51

8. Art. 18 para. 2; see also the Convention on the Territorial Sea and the Contiguous Zone of 1958, Art. 14 para. 3 (516 UNTS p. 205 et seq.; Trb. 1959, No. 123).

9. Supra, n. 7.

10. This type of decision will not be dealt with in this paper.

11. For example, Art. 21 para. 2 and Art. 211 paras. 2, 5 and 6

12. For example, Art. 94 para. 2(a)

13. For example, Arts. 217–220

14. For example, Art. 94 para. 3(b)

15. For the meaning of “applicable instruments” and “generally accepted international regulations” in Art. 94 para. 3(b) and Art. 94 para. 5 of the Draft Convention, see, Ebere, Osieke, “Flags of Convenience; Recent Developments”, 73 AJIL (1979) pp. 604–27, at pp. 620, 621Google Scholar. For the meaning of “generally accepted international standards” in Art. 10 of the 1958 Convention on the High Seas, see, Meijers, H., Nationality of Ships (Martinus Nijhoff, The Hague 1967) p. 117.Google Scholar

16. Paragraph 2. Cf., the corresponding phrase in Art. 211 para. 1: “States acting through the competent international organization or general diplomatic conference shall establish international rules and standards…”. For text of Art. 211, see infra, pp. 40–1.

17. The world-wide character of IMCO contributes to this: on 1 January 1980, 113 states were Members of IMCO, including all the important maritime states.

18. Art. 31 para. 2 of the Convention on the Law of Treaties (see supra n. 7): “The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.”

Art. 31 para. 3 reads: “There shall be taken into account, together with the context:

(a) any subsequent agreements between the parties regarding the interpretation of the treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties.” The nature of the subject precludes “subsequent agreements” and “subsequent practice”, and paragraph (c) is just as vague as the rules of reference dealt with in this paper.

19. In another context, viz., whether or not to allow reservations in the new Convention and the well-known criterion from the Convention on the Law of Treaties for allowing reservations, namely, whether the issue concerned is compatible with the object and purpose of the treaty, Oxman has written: “To interpret and apply the ‘object and purpose’ criterion in the case of any given article of the vast and complex law of the sea convention would be exceedingly difficult, if not impossible”, and “ …the underlying object and purpose of the convention is not so much its substance as widespread agreement on a comprehensive regime for the ocean embracing all interests at stake …”, and “…it is likely that any attempt to achieve a consensus at the conference on the object and purpose of the convention would end, after a long period of time, with the verbatim repetition of almost every provision.” Oxman, loc.cit. in n. 5, at. p. 35

20. See Art. 32 of the Convention on the Law of Treaties (cf., supra n. 7).

21. The Conference has been characterized by the fact that the lion's share of the negotiations have taken place, and are still taking place, in informal working groups, and that there are, in general, only unofficial reports of the discussions, with a limited circulation. The Official Records of the deliberations in the Plenary and in the official committees are of a summary nature and, moreover, often relate to procedural matters and the more politically coloured declarations of the various delegations. The reports of discussion in the informal working groups will therefore be relied upon here, in the main. However, caution is advisable since statements made off the record should not be taken as evidence of the opinions of governments. For the most part, therefore, the delegations whose points of view are quoted will not be identified. It is submitted, moreover, that it is in principle quite in order to take informal deliberations into account when interpreting the text of a treaty. On this problem, see, Michael Reisman, W., “The Regime of Straits and National Security: An Appraisal of International Lawmaking”, 74 AJIL (1980) pp. 48–76CrossRefGoogle Scholar, and John Norton, Moore, “The Regime of Straits and the Third United Nations Conference on the Law of the Sea”Google Scholar, ibid., pp. 77–121. Reisman is a proponent of a strict textual interpretation of the ICNT because there are no formal records (loc.cit., pp. 55, 56); on the other hand, Norton Moore does not consider the absence of these to be a problem (loc.cit., pp. 88, 89).

22. See supra p. 5 and n. 2.

23. Conclusions du groupe linguistique français concemant le document officieux 2 du 8 août 1978 du Comité de Rédaction (13 September 1978).Google Scholar

24. The reports of the formal and informal discussions within the Third Committee will be the main source here, as this committee appears to have paid most attention to the theoretical questions put forward in this paper, and because the subject matter of this paper is within the terms of reference of this Committee.

25. Art. 26 of the ISNT (UN Doc. A/Conf. 62/WP8/Part III). This draft article, in an amended and much elaborated form, has become Art. 217 of the Draft Convention.

26. Verslag van de Koninkrijks delegatie naar de Vierde Zitting van de Derde Zeerechts-conferentie van de Verenigde Naties [Report of the Kingdom delegation to the Fourth Session of the Third Conference on the Law of the Sea of the United Nations] part I, p. 53.

27. Shortly after the Fourth Session of the Conference, one of the EEC Member States suggested that, once the Convention was in force, it would be necessary to decide on an ad hoc basis, whether a generally accepted rule was concerned, using the proposed procedure for the settlement of disputes. This seems to be a reasonable suggestion, but it does not answer the question as to the legal nature of generally accepted rules.

28. ICJ Reports 1969, p. 42

29. That is to say, the elements of “widespread and representative participation” and of “extensive and virtually uniform State practice”.

30. Art. 32 para. 2 of the Convention on the Law of Treaties (see supra n. 7), does not appear to preclude other subsidiary means of interpretation apart from the travaux préparatoires.

31. An example would be a rule of customary law rooted in a recommendation of an international organization. Acceptance of a rule is demonstrated not only by ratification of or accession to a treaty, but also by, e.g., showing willingness to bring about a rule or by abstaining from protest against others bringing about a rule. Cf., Meijers, H., “How is International Law Made? – The Stages of Growth of International Law and the Use of its Customary Rules”, 9 NYIL (1979) pp. 1–26, in particular at pp. 17–20.Google Scholar

32. See the quotation supra from the North Sea Continental Shelf cases.

33. Cf., Meijers, loc.cit. in n. 31, at p. 21

34. Supra p. 9.

35. The French language group (see supra n. 23) describes “applicable” as “obligatoire pour le ou les Etats concernés”.

36. Now, Art. 213 of the Draft Convention

37. Art. 217 para. 1. Pursuant to the same paragraph, the flag States should also “ensure complance with their laws and regulations adopted in accordance with this Convention”, i.e., laws and regulations with at least the same effect as that of generally accepted international rules and standards, pursuant to Art. 211 para. 2. For text of Art. 217, see infra pp. 41–2.

38. See Draft Convention, Art. 220.

39. Cf., supra, p. 12.

40. The expression “applicable international rules and standards” will not occur again until section 8.

41. United Nations Conference on the Law of the Sea. Official Records vol. IV (UN Doc. A/Conf. 13/40), 13th meeting, p. 32.

42. However, four conventions were the result of the Conference.

43. There are fewer rules of reference in the 1958 treaties than in the Draft Convention. See Convention on the High Seas (UNTS vol. 450, p. 81 et seq., and Trb. 1959, No. 124), Art. 10 para. 2, Art. 24 and Art. 25 para. 2.

44. Report of the Netherlands delegation, supra n. 26, p. 35

45. A state cannot restrict the extent of its obligations resulting from the Convention by making reservations. The provisional Article 309 of the Draft Convention states that, in general, no reservations or exceptions may be made to the Convention unless expressly permitted by other articles of the Convention.

46. Conventions can contain provisions which refer to national rules of law and incorporate them by using the term “nationals of the High Contracting Parties”. When a convention prescribes that national legislation must be compatible with other treaties which are explicitly mentioned in an annex, these are incorporated in the convention (cf., infra section 8.1.4.3).

47. For an example, see Article 209 of the Draft Convention on pollution from activities in the Area (i.e., the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction).

48. Only one clear-cut statement has been found in the Conference reports in favour of the idea that states should be automatically bound to generally accepted rules and standards through the Convention. This is to be found in the proposals of the chairman of the English language group: “The term ‘generally accepted’ should describe prescriptions that are binding on parties to this Convention whether or not they are otherwise binding on the parties. Unless otherwise clearly indicated by the context, it should not be assumed that elaborate substantive references in the Law of the Sea Convention to a duty to respect international standards apply only to some parties to the Convention that are also legally bound by some other instrument.”

49. Art. 207 para. 4 and Art. 210 para. 4

50. Art. 207 para. 1 and Art. 22 para. 3(a)

51. Moreover, on certain stringent conditions, coastal states are allowed to adopt additional laws and regulations deviating from the navigational practices made applicable through the organization.

52. Albeit, with regard to Article 211 paragraph 6, under the condition that the coastal state takes the initiative quoted.

53. International Covenant on Economic, Social and Cultural Rights, Art. 2 para. 3 (Annex to G.A. Res 2200 (XXI) GAOR, 21st Session, suppl. 16, p. 49 and Trb. 1969 No. 100); (also, Principle 21 of the Declaration of the United Nations Conference on the Human Environment, Stockholm, 5–16 June 1972, UN Doc. A/Conf. 48/14/Rev.1, sales no. E. 73. II.A.14)

54. For example, see the statement of the delegate of Trinidad and Tobago during the second session of the Conference in 1974 (Third United Nations Conference on the Law of the Sea, Official Records vol. II, Third Committee, 4th meeting, para. 75 et seq., p. 321).

55. Report of the Netherlands delegation, supra n. 26, p. 34.

56. This is in fact expressed in the text of the draft article concerned, Art. 207 of the Draft Convention. Para. 1 states: “States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources including rivers, estuaries, pipelines and outfall structures, taking into account internationally agreed rules, standards and recommended practices and procedures.” (Emphasis added). The obligation “to take into account” is a relatively mild obligation compared with obligations formulated elsewhere in part XII of the Draft Convention.

57. UN Doc. A/Conf. 62/WP 8, part III, Art. 3: “States shall have the sovereign right to exploit their natural resources pursuant to their economical policies and they shall, in accordance with their duty to protect and preserve the marine environment, take into account their economic needs and their programmes for economic development.” (Emphasis added).

58. Art. 193 of the Draft Convention: “States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment.”

59. Whether the developing countries benefit from less stringent standards remains an open question. However, see Stevensen, John R. and Oxman, Bernard H., “The Third United Nations Conference on the Law of the Sea: The Caracas Session”, 69 AJIL (1975) pp. 1–30 at p. 27CrossRefGoogle Scholar: “In addition to environmental problems, the third qualification [viz., the degree of economic development as a qualification of the obligation to prevent pollution] …raises the different problem of imposing different legal obligations on developed and developing countries … One of the most curious effects would be that developing coutries would not enjoy many of the benefits of the treaty obligations, since all have mostly developing country neighbours.”

60. See Art. 203 of the Draft Convention.

61. See Art. 211 para. 6, which is concerned with measures aimed at special areas of the sea which are particularly vulnerable to marine pollution.

62. Inter alia. Art. 210 para. 4

63. Art. 119 para. 1(a).

64. Cf., the ILC proposals of 1976; Art. 19 of the ILC draft relating to state responsibility makes a distinction – depending on the nature of the international obligation which has been violated – between “international crimes” and “international delicts” as two species of the genus “internationally wrongful act”, whereby the term “international crime” is defined as “an internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole.” The ILC gives an example of this type of international obligation where violation results in an “international crime”, i.e., a rule of jus cogens, viz., “an international obligation of essential importance for the safeguarding and the preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas.” See ILC Yearbook 1976 vol II, part Two, p. 75 and p. 95 et seq. (including comments).

65. The underlying idea was that jus cogens does not allow amendments or reservations.

66. See Oxman, loc.cit. in n. 5, pp. 38–40. During an earlier stage of the Conference, viz., during the second session (Summer 1974), only the Spanish delegation described the obligation to protect the marine environment as a rule of jus cogens (Third United Nations Conference, supra n. 54, Third Committee, 6th meeting, paragraph 76, p. 333).

67. Art. 20 para. 1 of the ISNT (UN Doc. A/Conf. 62/WP 8).

68. The present Art. 218 of the Draft Convention, but during the discussions, still Art. 30 of the RSNT (UN Doc. A/Conf. 62/WP 8/Rev. 1).

69. This conclusion is reinforced by the fact that some of the specialized conventions in their turn refer to codification and development of the law of the sea by the new Convention, as well as to future claims and legal views of states relating to the applicable law of the sea at that time. See for example, Art. 9 para. 2 of the International Convention for the Prevention of Pollution from Ships (infra n. 98). Admittedly these references to the new Convention should not themselves lead to any problems, for rules and standards are fixed to the extent that they are established by the Convention itself, but the references to future claims and legal views of individual states do lead to some uncertainty.

70. For the text of these articles, see the Annex to this paper, infra, p. 40.

71. Art. 21 para. 2

72. Art. 211 paras. 3 and 7 will not be considered here; para. 6 is dealt with infra in. section 8.2.

73. Cf., supra section 3.

74. Art. 217 deals with enforcement by flag states; Art. 218, enforcement by port states, and Art. 220 with enforcement by coastal states.

75. See Articles 217, 220 and 218 in tnat order. For the purposes of the enforcement provisions in the Draft Convention relating to the protection of the marine environment, a “port state” is a state in which a ship, which has violated a relevant rule in a sea area which is not under the jurisdiction of such state enters port. The term “coastal state” is used when the violation takes place in a sea area which falls under the jurisdiction of this state, regardless of whether or not the ship violating the rule enters port in this state.

76. See Art. 211 para. 2 and Art. 217 paras. 1 and 2.

77. This appears from a textual interpretation of Arts. 218 and 220. The fact that enforcement by way of criminal proceedings against ships is subject to particular procedural safeguards on behalf of the flag state (see Arts. 223–233) does not detract from this conclusion. If the flag state is not a Party to the Convention, these safeguard provisions can be considered as a condition for the benefit of a third party (stipulation pour autrui). Cf., Art. 36 of the Convention on the Law of Treaties, supra, n. 7. The question of enforcement against the ships concerned was disputed at the Conference (see supra, p. 15).

78. Cf., the definition of “pollution of the marine environment” in Art. 1 para. 4 of the Draft Convention, viz., “the introduction by man, directly or indirectly, of substances or energy into the marine environment … which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.”

79. See Art. 211 para. 4 read in conjunction with Art. 21 para. 2.

80. See Art. 211 para. 4 read in conjunction with Art. 22 para. 3(a).

81. Paras. 3 and 4, and para. 5 in particular, which states: “In taking the measures called for in paras. 3 and 4 each State is required to conform to generally accepted international regulations.”

82. The “rules and standards related to prompt notification to coastal states whose coastlines may be affected by maritime casualties which involve discharges or probability of discharges” (Art. 211 para. 7) are not dealt with here. The same applies for “measures, pursuant to international law, of coastal states beyond the territorial sea to protect their coastlines from pollution” (Art. 221). The IMCO conventions relating to the regulation of civil liability for damage resulting from oil pollution are also left out of consideration. These conventions do not themselves contain rules and standards on the prevention of oil pollution from the sea. Their importance is limited to encouraging compliance with substantive rules and standards laid down in other conventions.

83. IMCO practice is usually to employ the term “Regulation” in English texts. For the use of the term “Standard”, see Resolution 23 of the International Conference on Marine Pollution, 1973 (IMCO publ. sales no. 77.14.E).

84. 9 ILM (1970), and Trb. 1955 No. 56. For an extensive review of the technical aspects of OILPOL 1954 and the Amendments to it, and of the other conventions on the prevention of pollution of the sea by oil, see Michael M'Gonigle, R. and Zacher, Mark W., Pollution Politics and International LawGoogle Scholar; Tankers at Sea (Berkeley/Los Angeles/London: University of California Press, 1979)Google Scholar, particularly Chapter IV: “Discharge Standards and Pollution Control Technologies.” See also Lawrence, Juda, “IMCO and the Regulation of Ocean Pollution from Ships”, 26 ICLQ (1977) pp. 558–84.Google Scholar

85. Prohibited zones are all sea areas within fifty miles of land, with a number of explicit exceptions.

86. See Status of Multilateral Conventions and Instruments in respect of which the Inter-Governmental Maritime Consultative Organization or its Secretary-General Peforms Depositary or Other Functions, as at 31 December 1979, IMCO Doc. Misc. (80) 3.E., p. 67.

87. IMCO publ., sales no. IMCO. 1967.4

88. See the new Article III (c). Arts. III and IV contain some exceptions to this rule.

89. See Status etc., supra n. 86, p. 67.

90. Res. A. 175 (VI), in Resolutions and Other Decisions of the Assembly, sixth session, sales no. IMCO 1970. 4(E). Also in IMCO publ., sales no. 78.01.E or F., and in 9 ILM (1970) p. 1 et seq., and Trb. 1970 no. 107.

91. The new Art. III requires that tankers comply with the following conditions:

“1. the tanker is proceeding en route;

2. the instantaneous rate of discharge of oil content does not exceed 60 litres per mile;

3. the total quantity of oil discharged on a ballast voyage does not exceed 1/15,000 of the total cargo carrying capacity;

4. the tanker is more than 50 miles from the nearest land.”

Again some exceptions follow, while the essence of the exceptions of OILPOL 1954 continues to apply.

92. See Status etc., supra, n. 86, p. 67.

93. Res. A. 246 (VII), in Resolutions etc., seventh session, sales no. 78.01; also in 11 ILM (1972) p. 267 et seq., and Trb. 1972 No. 103.

94. See Status etc., supra n. 86, p. 88. The Amendments of 12 October 1971 relating to the protection of the Great Barrier Reef (Res. A. 232 (VII), in Resolutions, etc., seventh session, sales no. 78.01 and also in Trb. 1972 No. 103 are not considered.

95. See Status etc., supra n. 86, p. 67 et seq., p. 82 et seq., and p. 84 et seq.

96. Cf., supra section 8.1.1.

97. Liberia, Japan, United Kingdom, Norway, Greece, France, the USA, Panama, Spain, Italy, the USSR, Denmark, the Federal German Republic, the Netherlands and Sweden, Together with Singapore, which is not a Party to OILPOL, these states belong to the top sixteen states on the world list of tanker tonnage (see Lloyd's Register of Shipping, Statistical Tables 1979) and also to the top eighteen in the world merchant fleet of 1978 (see Statistical Yearbook 1978 (New York: United Nations, 1979, sales no. 79. XVII.1) p. 552 et seq.).Google Scholar

98. IMCO publ. sales no. 77.14.E; also in 12 ILM (1973) p. 1319 et seq., and in Trb. 1975 No. 147. For the substitution of OILPOL by MARPOL see Art. 9 tof MARPOL. However, the content of OILPOL as amended in 1962 and 1969 remains important for present purposes: Resolution 1 adopted at the MARPOL Conference, urges participants of the Conference to accept the 1969 Amendments without awaiting the entry into force of MARPOL (see IMCO publ. sales no. 77.14.E, p. 126). It is also interesting that Art. 5 para. 4 of MARPOL states: “With respect to the ships of non-Parties to the Convention, Parties shall apply the requirements of the present Convention as may be necessary to ensure that no more favourable treatment is given to such ships.” (Pursuant to Art. 1 para. 2, a reference to “the present Convention” also constitutes a reference to the Regulations in the Annexes). Comparable provisions can also be found in the MARPOL Protocol (infra p. 29 and n. 105) and the SOLAS Convention 1974 (infra p. 30 and n. 115). The provision quoted prevents the development of a double standard with regard to pollution from ships, as a result of states remaining outside the convention regime and ships flying their flag ignoring the standards.

99. For “special areas”, see infra, section 8.2.

100. Slop tanks are tanks storing the remaining oil from other tanks, when the latter are being cleaned.

101. See Status etc., supra n. 86, p. 91.

102. See e.g., Regulation 13 on segregated ballast tanks and Regulation 24 on Limitation of Size and Arrangement of Cargo Tanks.

103. E.g., a ship for which the building contract is placed after 31 December 1975, or a ship the delivery of which is after 31 December 1979.

104. It is also possible that this definition will result in the process of ratifications and accessions proceeding more rapidly. For, as a result of the definition, there is no incentive for flag states to delay ratification of or accession to MARPOL for the purpose of giving shipowners of their nationality the opportunity of avoiding the costs resulting from the requirements laid down in MARPOL, and thus giving them a competitive advantage. See M'Gonigle and Zacher, supra n. 84, pp. 235, 236.

105. IMCO Publ. sales no. 78.O9.E; also in 17 ILM (1978) p. 546 et seq. and Trb. 1978, No. 188.

106. A “product carrier” is defined in the appendix to Regulation 1 of MARPOL 1973 as “an oil tanker engaged in the trade of carrying oil other than crude oil.”

107. See Regulation 13 para. 1

108. See Regulation 13 paras. 7–10.

109. See Regulation 1 para. 26.

110. MARPOL Protocol has not yet come into effect, see Status etc., supra n. 86, p. 95

111. For the relationship between these matters, and the prevention of pollution in the work of IMCO, reference may also be made to one of the documents of the Third Conference on the Law of the Sea, viz., “The Activities of the Inter-Governmental Maritime Consultative Organization in Relation to Shipping and Related Maritime Matters” (UN Doc. A/Conf. 62/27), in Third United Nations Conference on the Law of the Sea, Official Records, vol III para. 23).

112. IMCO publ., sales no. IMCO 1973.1; also in Trb. 1974 No. 51. Pursuant to Art. IV para. 5, this Convention was intended to replace the International Regulations for Preventing Collisions at Sea, 1960 (COLREG 1960) (see IMCO publ. sales no. IMCO 1970.6; also in Trb. 1961 No. 83). In fact this did not happen. COLREG 1960 still applies, though only among a very small number of states, or between these states and the states which are parties to COLREG 1972, and which have not yet explicitly withdrawn from COLREG 1960.

113. See Status etc., supra n. 86, p. 55 et seq.

114. The states mentioned in n. 97 supra, including Singapore.

115. IMCO publ. sales no. 75.01.E; also in 14 ILM (1975) p. 959 et seq. and Trb. 1976 No. 157.

116. See Status etc., supra n. 86, p. 43

117. See Lloyd's Register etc., supra n. 97

118. See Status etc., supra n. 86, p. 43 et seq.

119. IMCO publ. sales no. 78.09.E; also in 17 ILM (1978) p. 579 et seq. and Trb. 1978 No. 189.

120. At the eleventh session of the IMCO Assembly (1979) Art. 62 on inert gas systems was also altered: see Res. A. 418 (XI) in Resolutions etc., supra n. 90, eleventh session, sales no. 80.07.E.

121. See Status etc., supra n. 86, p. 49 et seq.

122. IMCO publ. sales no. IMCO 1966.5 or 1972.6; also in 640 UNTS p. 133 et seq. and Trb. 1966 No. 275.

123. With the exception of some defined categories; see Art. 5.

124. The Third Annex concerns the content and form of an International Load Line Certificate and an International Load Line Exemption Certificate.

125. See Status etc., supra n. 86, p. 113 et seq. and Lloyd's Register etc., supra n. 97.

126. In 1971, 1975 and 1979, amendments were drawn up as a result of resolutions of the IMCO Assembly; 1971: Res. A. 231(VII), in Resolutions etc., supra n. 90, seventh session, sales no. 78.01; 1975: Res. A. 319 (IX), in Resolutions etc., ninth session, sales no. 76.08.E; 1979: Res. A.411 (XI), in Resolutions etc. eleventh session, sales no. 80.07.E. Only the amendments of 1971 and that of 1979 lead to substantive alterations in any of the standards. The 1975 amendment was concerned with the amendment procedure of the Convention. None of the amendments has entered into force, so that the international rules and standards can only be found in the unamended Convention of 1966.

127. IMCO publ. sales no. 78.15.E

128. With the exception of certain named categories.

129. Regulation V/1 lays down requirements which apply exclusively to oil tankers. These are concerned with mandatory minimum requirements for the training and qualification of masters, officers and ratings of oil tankers.

130. See Status etc., supra n. 86, p. 213.

131. IMCO publ. sales no. 70.01.B, R or S and. Trb. 1970 No. 122 (B - bilingual, R - Russian, S - Spanish)

132. With the exception of warships and ships of less than 24 metres length.

133. See Status etc., supra n. 86, p. 131.

134. However, there are also some resolutions recommending the acceptance of a code of conduct, e.g.., Resolutions 14 and 15 of the International Conference on Tanker Safety and Pollution Prevention, 1978 (the conference at which MARPOL Protocol and SOLAS Protocol were drawn up). The Annexes to the resolutions contain, respectively: “Specifications for oil tankers with dedicated clean ballast tanks” (Resolution 14) and “Specifications for the design, operation and control of crude oil washing systems” (Resolution 15). See IMCO publ. sales no. 78.09.E.

135. See, for example, the Guidelines on the provision of adequate reception facilities in ports, part I (Oily Wastes), published on the authority of MEPC (IMCO publ. sales no. 77.02.E.). The MEPC is currently still an auxiliary organ of the IMCO Assembly. However, as soon as the Amendments to the IMCO Founding Treaty of 14 November 1975 (Res. A. 358 (IX) in Resolutions etc., supra n. 90, ninth session, IMCO publ. sales no. 76.08.E and in Trb. 1976 No. 132) have entered into force, this organ will become one of the main organs of the organization.

136. See Meijers, supra n. 31, p. 21.

137. For the suggestion that the obligation for ships to keep to starboard in the English Channel had already become an obligation under customary law, and was codified in COLREG 1972, see Meijers, supra n. 31, p. 19. It is submitted that resolutions of IMCO organs also helped to form the basis for this rule, which Meijers considers to be a rule of customary law (see The Activities etc., supra n. 111, para. 49). According to Alexandrowicz, the only customary law formed within IMCO activities – at least up to 1973 – was that the Organization refrains from the commercial aspects of international shipping law. See Alexandrowicz, C.H., “The Law-making Function of the Specialized Agencies of the United Nations (Sydney: Angus and Robertson, 1973) p. 110Google Scholar et seq. However, it is submitted that there is considerable potential for the creation of customary law on the basis of IMCO practice.

138. See Ships' Routing, 4th ed. (1978)Google Scholar, sales no. 78.07.E.

139. Supra p. 30 and n. 112.

140. E.g., in the case of MARPOL 1973 the main rule states that “an amendment to an Annex shall be deemed to have been accepted at the end of a period to be determined by the appropriate body at the time of its adoption, which period shall be not less than ten months, unless within that period an objection is communicated to the Organization by not less than one third of the Parties or by the Parties the combined merchant fleets of which constitute not less than fifty per cent of the gross tonnage of the world's merchant fleet whichever condition is fulfilled first.” See Art. 16(2)(f)(ii) and (iii).

141. See also the recommendation of the IMCO Assembly: Res. A. 293 (VIII), in Resolutions etc., supra n. 90, eighth session, sales no. 74.04.E.: also see Juda, supra n. 84, p. 573 et seq.

142. Cf., the Preamble of Res. A. 249(VII) of 15 October 1971 concerning Amendment Procedures in Conventions for which IMCO is a Depositary, in Resolutions etc., supra n. 90, seventh session, sales no. 78.01.

143. See pp. 29–30, 31–2.

144. Convention No. 147, in International Labour Conference, 62nd session, Records of Proceedings (ILO Office, Geneva 1976)Google Scholar and in Trb. 1977 No. 108. Pursuant to Art. 5, this convention was submitted for ratification to those Member States which are also parties to some of the IMCO conventions mentioned by name, such as COLREG 1972. The Convention also deals with the manning of tankers, as tankers also belong to the category of merchant ships.

145. Inter alia, Arts. 3 and 4 of the Convention concerning the minimum requirement of professional capacity for masters and officers on board merchant ships, 1936 (Convention No. 53), in International Labour Conference, 21st session, Record of Proceedings (ILO office, Geneva 1937) p. 317 et seq.Google Scholar; and the Convention concerning medical examination of seafarers, 1946 (Convention No. 73), in International Labour Conference, 28th session. Record of Proceedings (International Labour Office, Montreal 1946) p. 358 et seq.Google Scholar

146. See International Labour Conventions, Chart of Ratifications, 1 January 1978, as well as the most recent Official Bulletins of the International Labour Office (up to vol. LXII, 1979 series A, no. 2).

147. See Chart of Ratifications and Official Bulletins, previous note. The only two conventions which have acquired a respectable number of ratifications, viz., 87 and 104, are not closely related to the present subject, since they are concerned with trade union law for seamen (Conventions 87 and 98).

148. Recommendation No. 155, in International Labour Conference etc., supra n. 144, p. 35 and Trb. 1977 No. 108.

149. Inter alia, Convention No. 53 (supra n. 145); and the Convention concerning the prevention of occupational accidents to seafarers, 1970 (Convention No. 134), in International Labour Conference, 55th (maritime) session, Record of Proceedings (International Labour Office, Geneva 1971), p. 249 et seq.Google Scholar

150. See para. 3 of the Recommendation

151. See Chart of Ratifications, supra n. 146

152. In addition, coastal states may, on certain conditions, adopt additional laws and regulations for a special area. “Such laws and regulations may relate to discharges or navigational practices, but shall not require foreign vessels to observe design, construction, manning or equipment standards other than generally accepted international rules and standards.” (See the rest of Art. 211 para. 6). It is clear that this refers to rules and standards with worldwide application which were discussed above.

153. See Art. 220 of the Draft Convention

154. See Art. 217 paras. 1–3.

155. See Art. 218 para. 1.

156. See p. 27 et seq. and n. 98.

157. Cf., Art. 211 para. 6 of the Draft Convention

158. See Regulation 10 para. 2

159. See p. 28.

160. Cf., Regulation 10 para. 7.

161. See n. 138

162. See pp. 33–4.

163. See supra, para. 4

164. See p. 23.