全球化、海上贸易和国际法 Globalization Maritime Trade and International Law

1、Globalization, Coastal States, and the Turkish StraitsLevent HekimogluYork Centre for International and Security StudiesYork University, TorontoPresented at the Conference on “The Impact of Caspian Oil and Gas Development on Turkey and Challenges Facing the Turkish Straits”, organized by The Istanbu

2、l Bilgi University Maritime Law Research Centre, 9 November 2001, Istanbul.A strong case was put forward especially from the early 1980s onwards that environmental issues are too significant for the well-being of human populations to be left out from the discussions on security. There has emerged a

3、substantial literature since then, and nowadays that basic premise is increasingly taken for granted. While much of the environmental security literature tends to focus on global environmental degradation and regional resource scarcity issues, there is a third set of problems that pertain to what on

4、e author called “low probability high consequence hazards” (Dow 1997:61). The risks posed by maritime transportation of hazardous cargoes, especially to sensitive environmental zones and/or densely populated coastal areas, belong in this category. This particular environmental/ human security proble

5、m has been increasingly aggrevated by various aspects of the processes we, in short-hand, refer to as globalization.First of all, a tremendous growth in overall global trade has accompanied the transnationalization of production. During the past fifteen years alone global trade in goods and services

6、 has increased three-fold by value (see Chart 1). This exponential growth in international trade has been accompanied by a quiet revolution in freight transportation and a considerable growth in maritime freight traffic which after all accounts for the bulk of the international transportation of tra

7、ded goods. World maritime trade of goods has doubled in volume since 1970 (see Chart 2). With an increasing volume of maritime traffic and more and more hazardous cargo being shipped around the world, -all other things being equal- the risk of maritime accidents and hazardous cargo spills increases.

8、Second, as part of the processes of privatization, deregulation, and increasing capital mobility, the so-called flags of convenience has come to dominate global shipping, with serious implications for environmental security.Flags of convenience is not a novel phenomena, of course; there are numerous

9、 historical cases during the millennium when vessels got reflagged for various political and economic reasons. But even as late as mid-20th century, flags of convenience was a marginal phenomenon. In 1950, flags of convenience (FOC) accounted for not more than some 4 percent of worlds shipping tonna

10、ge.The share of FOC gradually increased over the following decades, and reached a quarter of the world merchant fleet by the early 1980s. During the past fifteen years, FOC showed a staggering growth and came to dominate the world merchant fleet at 52 percent of the total tonnage as of early 2000 (s

11、ee Chart 3). In this paper I am mostly using International Transport Workers Federation (ITF) data regarding FOC. Some other sources may provide slightly different figures. OECD, for instance, gives the FOC figure for end-1999 as 48.3 % of world tonnage (OECD Maritime Transport Committee, Annual Rep

12、ort 1999, Table 14). Likewise, 53% of the world tanker fleet and 58% of the bulk carrier fleet currently sail under flags of convenience (ITF 2000).The link between the processes of globalization and the explosion in FOC is unmistakable. Flags of convenience are flags of comparative advantage. The n

13、eo-liberal tenor of the age keeps advocating capital mobility and the creation and use of comparative advantage both for countries and companies. The gist of the tremendous recent growth in FOC is that some countries create conditions of comparative advantage for themselves in the shipping sector by

14、 establishing open registries and a laissez faire attitude towards the shipowners who bring their ships over, and the shipowners, under increasing pressure of cut-throat competition, flock to these registries. It may be bad for ship crews and it may be bad for the environment, but it is distinctly m

15、ore profitable for the shipowners and brings in handsome revenues to the countries who “lease” their flag.In the mid-1990s, faced with the fact that European Union shipowners registered one-half of their vessels under non-EU flags compared to just over one-quarter a decade earlier, European Union co

16、mmissioned a study on European shipping industry. One of the major conclusions of the study (EC 1996) was that the differentials in crew costs, taxes, equipment and maintenance costs, etc., were so sizable that the EU shipping industry had little choice on flagging out to be able to survive in a hig

17、hly competitive global market: “without flagging out, the EU shipping industry as a whole would have barely broken even. Pressure to reduce costs forces EU shipping companies to either flag out, reduce manning levels or get out of (selected) business(es)”.The irony is that, despite their expressions

18、 of opposition to FOC, the major maritime countries are actually parties to the FOC system as they permit nationals to flag out (Aspinwall 1995). In other words, since they cannot and/or are not willing to disallow capital mobility in the shipping sector, the US, Japan, and several European countrie

19、s are ultimately the main sponsors of the FOC system. It was largely due to the systemic roots of the FOC system that the efforts in the 1970s and 1980s to abolish FOC came to nothing. Even the UNCTAD Convention on Conditions for the Registration of Ships, concluded in 1986, ended up merely legitimi

20、zing the status quo. There is hardly anything inexplicable, therefore, in FOCs becoming the norm in the global shipping industry in the context of the late 20th century globalization. Part of the process has been the ever increasing internationalization of the industry, further blurring nationality

21、with serious implications regarding jurisdiction. As Aspinwall observes, it has become “a difficult and misleading proposition to discuss nationality when a ship may be built in Japan, owned by a Greek bank, crewed by Italians, Indonesians, and Filipinos, managed by an American firm, and underwritte

22、n by a British firm. This hypothetical but typical example is further complicated by assuming it is carrying Saudi oil to Chile for an Australian merchant, and flying the flag of Liberia. What state claims this ship? Under international law, it is a vessel of Liberia, and Liberia is responsible for

23、codifying and enforcing the maritime rules under which it operates. Yet many states have an interest in it, not least those past which it sails, who might suffer in the event of an accident.” (pp.7-8)And how much these coastal states can count on Liberia? Here is an answer from a recent ITF report (

24、1999): “The full impact of the farcical pseudo flag status of some of these registers is made all too apparent in the case of Liberia where, for many years, there was a brutal civil war and no functioning central government. In recent months the maritime community has been monitoring the very public

25、 dispute and court case between the government of Liberia and International Registries Inc (IRI) (the company located in the United States of America which administers the Liberian and Marshall Islands registers). Liberia has recently transferred the operation of its shipping registry to a newly for

26、med company, located in the United States, the Liberian International Shipping Corporate Registry (LISCR). LISCR was established and is owned by the lawyers who are acting for Liberia in their legal case against IRI. IRI has in turn lodged a US$ 400 million law suit against LISCR. There has also bee

27、n a public dispute between the two companies over which of them has been authorised to issue certificates of registry and other statutory certificates on behalf of the government of Equatorial Guinea.”While it is true that not every open registry has had as bad a shipping safety record as, say, Libe

28、ria, in aggregate, all available data clearly point out to a significant differential between FOC and closed/national registries in terms of the threat they pose to marine environment and coastal communities. In 1999, for instance, FOC accounted for almost 80% of the total tonnage lost in maritime a

29、ccidents. The European Commission study mentioned earlier found out that EU owned but flagged out vessels had a three times higher total loss rate than EU owned and EU flagged ships. A recent study published by the Lloyds of London provides details of the worlds 36 worst oil spills from tankers duri

30、ng 1963-1996. About half of these vessels were flying flags of convenience. Taking into consideration that during this period as a whole FOC constituted about a quarter of the world merchant fleet, the implied FOC causalty rate is roughly three times higher than the fleets of closed/national registr

31、ies.Concern with cost-cutting and maintaining competitiveness not only feeds the phenomenal growth and the low standards of FOC, but also impacts adversely on the operational standards of the rest of the world merchant fleet: Many traditional flag states also have a very poor record with regard to c

32、ompliance with widely accepted international minimum rules and standards, largely because shipping is a global industry and when the sub-standard operator establishes the marginal freight rates this also causes problems for national flag operators who have to compete within the global market. It is

33、indicative of this pressure, for instance, that the average age of the world merchant fleet increased by about 50% during the last two decades, and now stands at about 20.With global shipping rapidly increasing in volume and with flag states (especially FOC) often unwilling and/or unable to implemen

34、t stringent safety standards and with multilateral instruments of control grossly insufficient, the regulation of FOC shipping, especially in the face of increasing environmental public awareness and demands, has had to occur indirectly through coastal and port state control.The significance of the

35、public pressures raising the environmental performance bar cannot be overemphasized. An increasing public sensitivity especially from the late 1960s onwards in certain parts of Europe and North America on environmental issues accompanied by a declining tolerance for environmental mismanagement and “

36、accidents”, has increasingly become more widespread both within and outside those continents in part due to the transmission of such environmental attitudes and values throughout the globe by means of advanced and accelerated means of communication and by the transnational activism of nongovernmenta

37、l organizations. In other words, despite -at times quite large- differentials among countries and regions, pretty much everywhere public expectations and demands have been raising the bar for the performance of governments on environmental issues, and will continue to do so.While there have been a f

38、ew attempts to institutionalize regional port state control regimes, such as the 1982 Paris Memorandum of Understanding on Port State Control (MOU) signed among several EC countries, in general it has been the unilateral domestic regulations in coastal and port states that attempt to take the big sl

39、ack in the system. As a result, domestic maritime environmental regulations in most countries have been growing by leaps and bounds in recent years.The Donaldson Report in the UK Following the Braer accident in 1993 the British government appointed Lord Donaldsons Inquiry for a policy review on mari

40、ne pollution. The Inquirys 500-page report “Safer Ships, Cleaner Seas”, released the following year, is widely recognized as a landmark study. The UK government published its response to the Report by early 1995. What is noteworthy in both texts for the purposes of this discussion is the great empha

41、sis placed on the need to strengthen port and coastal state control. expressed the rationale in quite simple terms: As long as flag states fail to discharge their responsibilities and flag state control continues to be ineffective, it said, “Port State Control will be the United Kingdoms first line

42、of defence against the pollution of its coastline. Safer ships mean safer seas. Safer seas mean less pollution. It is as simple as that. Port State Control as practiced at present undoubtedly has some effect in maintaining standards of safety, but it is a very long way from being fully effective.” T

43、he government in its response fully endorsed that view: “the UK will resist any attempt to amend, or interpret, the international Conventions to limit the effectiveness of Port State Control. Port State Control will continue to act as a major defence against the substandard ship until all Flag State

44、s effectively meet their responsibilities.”The editor of a major recent collection on U.S. shipping policies was more blunt: “Strict enforcement of safety, security, and environmental standards is a legitimate national interest for all coastal and port areas. These can and should be imposed on all v

45、essels entering these waters, whatever their registry, ownership, or operator. . Too many countries are now lax, and allow needless and excessive freedom for irresponsible shipping activities. This nonsense need not be tolerated” (Lovett 1996:303).Current data on the shape of the world commercial fl

46、eet indeed fully justify this emphasis on port and coastal state control. An EU study suggests that almost one third of world merchant fleet is substandard. In 1999 the Paris Memorandum countries found unfit to sail and detained a staggering 9.15 percent of all ships they inspected. Under these circ

47、umstances, the past twenty years or so has seen the introduction of sometimes quite drastic measures introduced especially in the Western countries to deal with the threat of maritime accidents/spills. After the Amoco Cadiz accident off the French coast in 1978, for instance, the French Government r

48、esponded by strictly regulating tanker traffic in French territorial waters, prohibiting them from approaching the coasts more than seven miles (Ngantcha 1990:111). In 1985, after a collision in the Strait of Messina, Italy closed the strait to tankers over 50,000 tons and established compulsory pil

49、otage for most categories of other vessels transiting the strait (Francalanci and Scovazzi 1994:134). In its peculiar Article 38 (which I only half-jokingly call the Italian clause), LOSC exempts straits between the mainland and an island of the same state such as Messina, but denies the same exempt

50、ion to straits between islands and a mainland that belong to different states, such as the Strait of Malacca. In the aftermath of the Exxon Valdez spill off the Alaskan coast in 1989, the United States itself accelerated introducing maritime environmental regulations, including the 1990 Oil Pollutio

51、n Act, which will allow only double hull tankers to have access to U.S. ports by 2015. The European Union has been currently considering proposals to ban all ships over 15 years old which have been detained twice in the previous two years and to gradually phase-out single-hulled vessels. European Tr

52、ansport Workers Federation (ETF) press release, 3/11/2000. These examples can easily be multiplied. What I want to underline here is the contrast between the deeds of these countries regarding their own coastal zones and their long-standing posture, codified in the United Nations Law of the Sea Conv

53、ention, regarding the straits states competence in introducing regulatory measures on shipping through straits.The Law of the Sea Convention that came out of the Third UN Conference on Law of the Sea after nearly a decade of negotiations (and arm-twisting) has generally been regarded as increasing t

54、he sovereign rights of the states over the seas they have coasts to, as 12-mile territorial waters as well as EEZ and continental shelf claims are recognized, exploitation of seabed resources are regulated, etc. In some other areas, however, the Convention has distinctly and considerably restrained

55、the sovereign rights of coastal states, and the severest restrictions are imposed on straits states. From the very beginning of the UNCLOS, maritime powers made a clear and inflexible stand on an unconditional right to passage through straits. Largely due to its geographical peculiarities Soviet Uni

56、on fully supported this stand throughout. The statements by various straits states during the nearly decade-long conference clearly reflects their concerns, but the resistence some of them put up eventually faltered in the face of the skillful package deal bargaining by the bloc of major maritime co

57、untries.Whereas the Law of the Sea Convention allows the state parties some leverage to control and regulate shipping in waters adjecent to their coasts (internal waters, territorial waters, and even EEZ) on environmental and security grounds, it renders straits states literally powerless in defendi

58、ng the most basic environmental security rights of their populations in straits areas. The coastal state has virtually no say whatsoever even on the condition or cargo of the vessels that pass through the straits in its territorial sea. For all intents and purposes, international straits are treated

59、 in the Law of the Sea Convention little differently than high seas, with almost no regard for the sovereign rights of the coastal state and, more importantly, for the environmental/human security of the coastal populations. As Smith emphasizes, “the maritime states at the Conference sought and achieved a straits regime of diminished coastal authority far more protective of military and economic navigational interests than the rules of inno