The law of the sea and international shipping: Anglo-Soviet post-unclos perspectives

Book reviews

species of fish and a dozen squids as occurring in the diet of North Pacific fur seals. Many of these, eg salmon, are commer~ialIy valuable, and the frequent occurrence of commercial species is reported for marine mammals generally in the Bering Sea by Lowry and Frost (Chapter 3) and for harp seals in eastern Canada by Bowen (Chapter 9). The third stage of making quantitative estimates of the impact on commercial fisheries is less well covered. Beverton gives some simple formulae, and more sophisticated models are described by Swartman and Harr (Chapter 4) for the Bering Sea, and by Beddington and de la Mare (Chapter S), for the southern ocean, where the interactions between whales, seals and a possible krill fishery are of particular interest. In the latter example the competitive effects of fishermen on marine mammals food supply gets attention, but otherwise this question is only examined by Pascal (Chapter ll), who suggests that a decline in numbers of elephant seals at Kerguelen may have been due to the heavy fishery there in the 1970s. Overall, the current information on the quantitative impact is poor. Each of the methods used contains some assumptions, whose reliability has not

been fully tested. Thus, while there is little doubt that in many places the consumption by marine mammals does have an impact on fish catches, it is difficult in nearly all cases to know whether this impact is wholly insignificant, or whether the livelihood of some fishermen is being seriously affected. The one case where a serious impact has been clearly demonstrated, is that of the sea otters off the US west coast. In Chapter 12 Estes and Van Blaricorn show how sea otters are much more skilled than fishermen in harvesting some kinds of shellfish. While for most species, even those (for example, clams) that are commonly eaten by sea otters, otters and fishermen can coexist, they conclude ‘there can be little doubt the presence of sea otters is incompatible with red urchin fisheries’. The interactions include the transmission of parasites through seals to fish. This is a problem in several parts of the North Atlantic, and one which is only touched on briefly in this volume. These interactions are raising difficuit management problems. These are discussed in several chapters, notably by Harwood and Greenwood (Chapter IO) in relation to the grey seals in the UK, and by Rasuya (Chapter 14) in relation to the fishery-

The LOS and international THE LAW OF THE SEA AND INTERNATIONAL SHIPPING: ANGLOSOVIET POST-UNCLOS PERSPECTIVES

edited by W.E. Butler Oceana, 7985,

Dobbs

Ferry,

New

York,

411 pp, $45.00

This volume includes most of the papers presented at the Second Anglo-Soviet Symposium on the Law of the Sea and International Shipping, held in London in June 1984, together with four of the British papers from the First Symposium in Moscow in April 1983. The symposia, organized on the British side by the Centre for the Study of Socialist Legal Systems

236

shipping

(and the British Institute of International and Comparative Law) and the first of their kind, produced papers organized into four sections of interest to a wide readership, including public and private international lawyers, commercial lawyers and others interested in shipping economics and marine insurance. It is an excellent collection of papers for both research and teaching purposes, we11worth the price. Professor Butler’s very interesting paper is the first in the section on ~Implement~tio~l of the 1982 UN Con~ei~tio?~

on

the

Law

of

the

Sea

(LOSC)‘. He rejects arguments for a ‘legislative’ view of LOSC which would treat it as a product of consensus akin to municipal legislation pro-

dolphin conflict in the Iki Island area of Japan. These political problems are made more difficult by the difference in attitudes between some fishermen, and some members of environmental movements, speaking as they say on behalf of the whales and seals, and by the uncertainties about the nature and magnitude of the interactions. This volume goes a long way towards clarifying the nature of the conflict, and will be of great value to all those - scientists, fishermen, policy makers, or members of the public who may be concerned with this growing problem. Many uncertainties remain. Though these may be reduced by further research, they will be difficult to remove. This review may therefore end with the words of Dr Holt in his Foreword to the volume: Those who find themselves directly responsible for decisions that affect marine mammals and fisheries will have to decide how they are going to take uncertainties into account. Scientific advice could, if they seek it, also contribute to that decision by elaborating the possible consequences in both long and short term. of various available options. John A. Guliartd Marine Resources Assessment Group imperial College of Science and Technology London, UK

ducing an indivisible package to be interpreted textually, without reference to formal records. He stresses that, since there is no agreement to treat the Convention as such, the indi~~idual parts of the Convention should be individually seen as potential contributory parts to customary law as a whole. The reviewer finds all this convincing with the exception of the contention (p 9) that UNCLOS met because the Law of the Sea was stable and ripe for comprehensive codification. On the contrary the 1958 Conventions were increasingly seen as inadequate. Professor White’s well organized and comprehensive survey of LOSC and treaty law similarly rejects the indivisible package deal view, insisting that it will operate as a normal treaty under the law of treaties. Examining in turn state positions and LOSC

MARINE

POLICY

July

1986

Book reviews provisions on reservations, declarations and denunciation, she concludes that the absence of reservations is a precondition to ratification and a duty of parties. Patricia Birnie reviews major international and national legal decisions on the Law of the Sea, emphasizing the paucity of ICJ cases and scant respect shown the Court as well as states’ reluctance to adopt the 1958 Optional Protocol on Compulsory Settlement of Disputes. In describing comprehensively the LOSC compulsory dispute-settlement options, she gives useful detail of various states’ preferences, as well as the overcomplexity of the seabed disputes chamber procedure, but she is inaccurate to think their success depends on popularity (p 45), since all parties must adopt arbitration, at least, to settle all but those disputes exempted under Arts. 297-8. It is difficult to see how exemption of maritime boundaries disputes is unhelpful given the unresolved nature of the relevant norms, and how this can enhance the importance of the Commission on the Limits of the Continental Shelf (pp 59-60). Fried1 Weiss presented what would serve as a model EC Commission memorandum on UNCLOS and the EEC. The most interesting parts concern the history of the international organization participation clause and Weiss’s extremely “European” assertion of the need under Community law for a joint undertaking by all member states to become LOSC parties.

PrepCom Henry Darwin of the Foreign and Commonwealth Office presents the clearest introductory account in English of the constitution of PrepCom and its work up to late 1983. Interestingly, he blames the rift of 1982 on the failure of states to maintain the Conference’s consensus approach in relation to Part XI. In conclusion he emphasizes, rightly, the need for PrepCom to be efficient, objective and businesslike to be successful. In the first paper of the second section on ‘Maritime Jurisdiction’ P. 0. Barabolia of the Soviet Academy

MARINE

POLICY July 1986

of Sciences examines questions of the legal status and regime of the EEZ. The account is standard but more interesting in relation to the Castafieda Group and the debates on whether or not there should be express mentions or preclusions of ‘state sovereignty’ or high seas status as applied to the EEZ. He argues that the regime, the text containing a fundamental contradiction, is unresolved. So he turns to state practice, giving no exhaustive analysis but some interesting examples and arguments, concluding (dubiously) that the zone remains part of the high seas.

Latin American

Contribution

Fred Parkinson describes the Latin American contribution to the Law of the Sea. He improves on a wealth of other literature in English, mainly in the details of pre-1950s practice and of increasing coordination in the 1960s of previously unilateral practice covering 200-mile claims. John Collier surveys the law of islands and artificial islands, producing a very neat conclusion on the effect of size, location, and other facets of islands on the generation of continental shelves and their delimita-

tion . R.R. Churchill presents an impressively thorough legal account of the maritime zones of Spitsbergen. He argues that those islands can generate the new LOSC zones, although, as he points out, Norway has made no zonal claim which might be inconsistent with the 1920 treaty establishing a special regime in Spitsbergen and adjacent waters. The question is, does the 1920 treaty apply in such zones? Presenting arguments that it does and does not in turn, and applying the rules on interpretation of treaties to the 1920 treaty, he concludes (somewhat belatedly) that the matter is essentially political and best resolved by a conference of the states parties, but that on legal (as well as political) grounds the 1920 treaty should not be applied beyond territorial waters. The reviewer takes issue only with the argument on p 222 that, since the object and purpose of the 1920 treaty was to place Spitsbergen under Norway’s sovereignty

while preserving existing exploitation rights of other states, it was also its object and purpose to extend the same to waters formerly high seas but now potentially Spitsbergen’s EEZ. No such conclusion is necessary, as sovereignty should not in any event be extended over any EEZ, let alone that of Spitsbergen, and the other states’ exploitation rights are as adequately preserved in those waters by the freedom of the seas. The second section is concluded by another paper by Fred Parkinson, explaining developments in 17th and 18th century prize law. N. Ia. Rusina of the Soviet Ministry of Maritime Fleet (the Soviet Ministry) commences the section on ‘Environmental Protection and the Sea’ with assertions of some broad (and dubious) principles. By way of contrast Professor Brown’s analysis of the International Oil Pollution Compensation Fund is a very detailed and illuminating description of the relevant oil pollution compensation instruments and the assessment practice of the Fund, in particular, between 1979 and 1983. Of special interest is the illustration (p 282) of how treaties can interact so that a claim by State A under Treaty X can affect a claim by State B under Treaty Y, even if State A is not party to Treaty Y.

Impetus Alan Boyle makes a thorough attempt to describe the relationship between the anti-pollution provisions of the LOSC and those of regional arrangements. He suggests, quite correctly, that the latter tend to reflect the former and that the LOSC extension of jurisdiction to flag and port states over vessel-source pollution has given impetus to their further development. This will often be aided by UNEP’s regional seas programme, a description of which might have been helpful. He ably points out the distinct rationales of the LOSC provisions on vessel-source as opposed to other source pollution, but is wrong to assume that Arts. 122 and 211(6) permit enhanced regional as opposed to generally applicable standards and that the term ‘generally accepted . standards’ in LOSC necessarily refers

237

Book reviewslcalendar

to particular conventions. In the final section on ‘international Shipping’, G.G. Ivanov of the Soviet Ministry

discusses

seven

questions

of

by LOX. The most interesting is that of the interplay of the rules on exhaustion of local remedies (Art. 295) and on the release of an arrested vessel upon the posting of a bond (Art. 292). R.P. Grime describes the traditional ‘layered’ approach of UK marine insurers to war risks. In an appropriately topical vein, he discusses the litigation arising from Iraq’s ‘blocking and trapping’ vessels in the Shatt-alprivate

international

law

raised

Arab at the outbreak of the Iran-Iraq war; it would have been interesting to hear more on war risk claims in that region generally. He is correct to stress the ‘carry over’ effect of old rules, even when formally abolished. Professor Goss gives a classic (modified) comparative advantage account of the economics of international shipping, stressing his concern (in practice probably overrated) that the UNCTAD Liner Code will induce inefficiency. M. Kharitonov and V. Shuvalov of the Soviet Ministry illustrate (statistically) declines in profitability of va-

rious classes of shipping and a trend towards use of smaller and specialist ships and consolidated cargoes. Finally, Professor Doganis and S. Bergstrand give a factual account of the use of flags of convenience (FoC) and the UNCTAD campaign against them. One or two generalizations require comment, such as the assumption that FoC inspection services are inadequate (p 419). Liberia’s are quite good. Glen Plant Department of Law Durham University, UK

Calendar This calendar of events is based on information provided by the respective organizers and from secondary sources. MARINE POLICY welcomes information on meetings suitable for listing in this section. Copy deadlines are three months ahead of cover dates. Asterisk denotes new entry. 21-24 July 1986, Miami Beach, FL, USA 20th ANNUAL CONFERENCE OF THE LAW OF THE SEA INSTITUTE. ‘The Law of the Sea; What lies ahead?‘. Details from University of Miami Law Centre, PO Box 248087, Carol Gables, FL 33124, USA. 10-15 August 1986, Rimouski, Canada THIRD BIENNIAL CONFERENCE OF THE INTERNATIONAL INSTITUTE OF FISHERIES ECONOMICS AND TRADE. Theme: Fisheries Trade, Development and Policies. Details from Sharon Kelly, IIFET, Oregon State University, Corvallis, OR 97331, USA (Tel: (418) 724-1576). 11-16 August 1986, Trondheim, Norway NOR-FISHING’86. Details from Liv Hodnungseth, Norges Krefting Varemesse, PO Box 130 Skoyen, Oslo 2, Norway (Tel: (02) 553790). *34 September 1986, Gdansk, Poland PROSPECTS OF MARITIME COOPERATION IN EUROPE: An Intenational Conference to Promote World-wide Cooperation in Shipbuilding, Shipping and Associated Industries. Details from Mrs .I. Bambrough, Legal Publishing and Conferences Division, Lloyd’s of London Press Ltd, 2630 Artillery Lane, London El 7LX. 2-10 September 1986, Helsinki, Finland THE FOURTH INTERNATIONAL SHIPBUILDING AND OCEAN ENGINEERING CONFERENCE. Contact Fred Walker, The National Maritime

238

Museum, Greenwich, London SE10 9NF, UK (Tel: 01-858 4422 Ext 235). 23-27 September 1986, Hamburg, FR Germany 12th INTERNATIONAL TRADE FAIR MACHINERY, MARINE SHIP, TECHNOLOGY. Details from Hamburg Messe and Congress GmbH, Postfach 36 24 80, D-2000 Hamburg 36, FR Germany. *30 September-l October 1986, London OFFSHORE AND MARITIME TECHNOLOGY TRANSFER CONFERENCE (Greenwich Forum XII). Details from Offshore Conferences and Exhibitions Ltd, Rowe House, 55/59 Fife Road, Kingstonupon-Thames, Surrey KTl 1TA (Tel: Ol549 5831). *28-31 October 1986, Calgary, Canada THIRD ANNUAL ARCTIC OFFSHORE TECHNOLOGY CONFERENCE AND EXPOSITION. Details from AOTC, No 101, 3009-23 Ave SW, Calgary, Alberta T3E 053, Canada (Tel: (403) 242-4288). November 1986, Bilbao, Spain SINAVAL. International Fair of the Naval, Port and Fishing Industries. Details from Geoff Buckwell. Cahners Exhibitions Ltd, Chatsworth House, 59 London Road, Twickenham. Middx TWl 3SZ. UK (Tel: _ 01-891 5051,‘Telex: 895 4253). ’ 9-14 November 1986, Taipei, Taiwan INTERNATIONAL CONFER20th ENCE ON COASTAL ENGINEERING. Details from Dr Billy Edge, Secretary,

Coastal Engineering Research Council, American Society of Civil Engineers, Cubit Engineering Limited, 207 East Bay Street, Suite 311, Charleston, SC 29401, USA,

*l-6 December 1986, Townsville, Australia INTERGOVERNMENTAL OCEANOGRAPHIC COMMISSION WESTPAC SYMPOSIUM. Details from Mr R.N. Harriss, Department of Science, PO Box 65, Belconnen Act 2616, Australia (Telex: AUSCI 62484; Tel: (062) 64 4249).

25-29 Jaunuary 1987, Duhai GULF MARITIME 1987. Gulf Maritime, Cargo Handling, Fishing and Shipping Exhibition. Details from Jurgen Krupka, Fairs and Exhibitions Limited, 51 Doughty Street, Grays Inn, London WClN 2LB (Tel: 01-831 8981).

*17-19 March 1987, Aberdeen, UK OFFSHORE EUROPE 87. Exhibition and Conference. Details from Offshore Conferences and Exhibitions Ltd, Rowe House, 55/59 Fife Road, Kingston-uponThames, Surrey KTl lTA, UK (Tel: Ol549 5831). March/April 1987, Athens, GA, USA RIGHTS TO OCEANIC RESOURCES: DECIDING AND DRAWING MARITIME BOUNDARIES. Contact Dorinda G. Dallmeyer, Research Director, The Dean Rusk Center, The University of Georgia, Athens, GA 30602, USA.

*26-29 May 1987, Seattle, WA, USA COASTAL ZONE 87. The Fifth Symposium on Coastal and Ocean Management. Details from D. Clark NOAA External Affairs, Rockville, MD 20852 (Tel: (301) 443-8031).

MARINE

POLICY July 1986