Maritime Law and the Developing Countries: Attitudes and Trends 1

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Maritime Law and the Developing Countries: Attitudes and Trends 1

in Ocean Yearbook Online


1. This article is based on a lecture presented at the International Seminar on Contemporary Maritime Law and the New Economic Order, N. Kopernikus Univer- sity, Torun, Poland, September 17-20, 1985.

2. For reasons of space, the devolution of international work on the Law of the Sea is not covered in this article. Work on the subject was transferred from the Inter- national Law Commission, which commenced its research on relevant issues in the early 1950s, to the three UNCLOS conferences that have been held so far.

3. Editors' note.-For a discussion of the Rhodian Sea Law, see John Wilkinson, "The First Declaration of the Freedom of the Seas: The Rhodian Sea Law," Ocean Yearbook 2, ed. Elisabeth Mann Borgese and Norton Ginsburg (Chicago: University of Chicago Press, 1980), pp. 89-93.

4. Mercantilism is variously defined by different authors. The term is used broadly in this article to cover the case of states consciously applying political pressure and/or support to their commercial interests to achieve economic goals.

5. It would be wearying to cross-reference every tentative or definitive infusion of equitable considerations into the growing body of maritime jurisprudence, which approaches maturity from about the first quarter of the nineteenth century onward. For our limited purposes, attention need only be drawn to the profusion of national maritime and commercial codes of that century, which, seemingly capriciously, favored sellers' interests against those of buyers, carriers' interests against those of shippers, or vice versa. There was often marked doctrinal conflict between acknowl- edged carriers' lawyers and shippers' lawyers and between characterization of states as shipper states and carrier states. "Thus, due to varying substantive standards and conflict rules, a negligence cause ... could be valid in one country and invalid in another, and the liability of the carrier could differ with the fortuitions [sic] or selected forum." See Athanassios N. Yiannopoulos, Negligence Causes in Ocean Bills of Lading: Conflict of Laws and the Brussels Convention of 1924: A Comparative Study (Baton Rouge: Louisiana State University Press, 1962), pp. 4-5 and, in particular, the authorities cited in chap. 1.

6. The UN Convention on Conditions for Registration of Ships was adopted by consensus in Geneva on February 7, 1986, under the auspices of UNCTAD. It will enter into force 12 months after not less than 40 states whose combined tonnage amounts to at least 25% of world shipping tonnage have unconditionally signed, ratified, or acceded to it. These are punishing conditions that characterize commercial treaties that are not too popular with the major powers. They may serve to defer the convention's entry into force for at least a decade or more, unless the more important shipowning countries accelerate their adherence to the instrument. It is also to be noted that even when the convention comes into force it would not apply to any state that did not accept it, thus leaving any recalcitrant flag-of-convenience (FOC) states an easy way out. Ironically also, to the extent FOC states may move toward fulfilling the provisions in the convention directed to reducing the existing economic and adminis- trative gaps in their registration laws, they would move that much nearer to commit- ting economic suicide; whereas to the extent that they make no move at all or take minimal or nominal action only in that regard, the question will arise as to why the convention was drafted in its present form in the first place, since nothing will then have changed. The convention does, however, largely meet the demand for reassert- ing the need for states to become more accountable for the misconduct of their mer- chant fleets, which was a main plank of OECD views at the Geneva Conference. From a quick perusal of the convention it does appear that attempts to stiffen and flesh out the existing legal requirement that a "genuine-link" exist between ships and their flag states (as mandated by the 1958 and 1982 Law of the Sea conventions) are so diluted in the relevant provisions and rely so heavily on voluntary action by states that, in my view, the main raison d'etre why the FOC question was first raised in UNCTAD-that is, to reduce by an early date the fiscally privileged competitive advantage enjoyed by FOC fleets-has not been served by the 1986 convention. It can only be hoped that in any future litigation involving the Law of the Sea conventions of 1958 and 1982 or the registration of ships convention of 1986 the "genuine-link" requirement between a ship and its flag state will be strengthened rather than weakened. For the moment, it would appear only that the developing countries (ex- cluding their FOC state members) did attempt, in the exercise that was concluded in Geneva on February 7, 1986, to assert that the "genuine-link" provision in the two Law of the Sea conventions implies, although it does not specifically so state, stringent

economic, manning, and management components-but that they lailed to secure the agreement of the rest of the international community to translate that conviction into the convention so as to make it a declaratory principle of law. At most, therefore, their view in that regard may be said to have received only a token acknowledgment in the 1986 convention as adopted, and it must be left to future court judgments to decide finally in this matter. The text of the convention is contained in UN document TD/RS/ CONF/23, New York and Geneva, 1986.

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