The contribution of the International Organization for Standardization to ocean governance

• Author: Makoto Seta
• DOI: http://doi.org/10.1111/reel.12303
• Date: 01 November 2019
• Published date: 01 November 2019

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  RECIEL. 2019;28:304–313.wileyonlinelibrary.com/journal/reel

1 | INTRODUCTION

Traditionally, the stud y of public international law has mai nly focused

on legal norms es tablished by various States, s uch as treaty and cus‐

tomary inter national law. Soft law (legal docu ments that are not bind‐

ing or enforceabl e) has attract ed considerabl e academic inte rest, in

particular, sof t law established by States, suc h as the Rio Declaration

on Environment and Development.1 More recently, another form of

soft law, namely pr ivate standards – for i nstance standa rds set by non‐

State actors – ha s begun to draw aca demic attenti on.2 Such private

standards are particularly relevant in the context of international eco‐

nomic law3 and international environmental law.4

Private standards can work for ocean governance,5 particularly

the protectio n of the marine envi ronment, since t hey can comple‐

ment the syste m establishe d by the United Nations Convention on

the Law of the Sea (U NCLOS). As discuss ed in this arti cle, the

International Organization for Standardization (ISO) develops stan‐

dards on the crite ria for testing the content of f uel oil used for com‐

mercial shippin g. To date, however, the relationship bet ween private

standards an d the law of the sea has n ot been analyse d from the

perspect ive of public intern ational law. This ar ticle aims to fill t his

gap by examining h ow private stan dards, part icularly thos e set by

the ISO, contribu te to ocean governance. Since t he ISO is the largest

of all entities tha t set private standards, 6 it can serve as a model for

other non‐State ac tors in settin g private stan dards for ocean

governance.

The article a nalyses the st ructure and p rocess followed by t he

ISO to develop the s tandards relevant to oce an governance (Section

2) and the relatio nship between t he ISO and the law of th e sea

(Section 3). It th en proceeds to evaluate the invol vement of the ISO

1 See, e.g., D Th ürer, ‘Soft Law ’ in R Wolfrum (ed), Ma x Planck Encycl opedia of Publi c

Internation al Law, Vol. IX (Oxfo rd Universit y Press 2012) 269, 271.

2 A Peters et al, ‘ Non‐State Actor s as Standard Se tters: Framin g the Issue in an

Interdiscip linary Fashio n’ in A Peters et al (eds) , Non‐State Actors as Sta ndard Setter s

(Cambridg e University Pr ess 2009) 1; A Mar x et al, ‘Introd uction: Priv ate Standards an d

Global Gove rnance’ in A Mar x et al (eds), Private Stan dards and Glob al Governance:

Economic, Legal and Political Perspectives (Edward Elgar 2012) 1, 1–2.

3 World Trade Orga nization law is on e of the fields of pu blic internati onal law in which

the role of pri vate standard s has been analy sed extensive ly. See, e.g., J Woute rs and D

Grates, ‘P rivate Food Stan dards and the Wor ld Trade Organiza tion: Some Lega l

Considera tions’ (2012) 11 World Trad e Law Review 479; Y Naik i, ‘Trade and Bioe nergy:

Explainin g and Assessin g the Regime Comp lex for Sustai nable Bioene rgy’ (2016) 27

European Jo urnal of Interna tional Law 129.

4 JF Green, ‘B lurred Lines : Public–Private In teractions i n Carbon Regul ations’ (2017) 43

International Interactions 103.

5 Although t he definition of o cean governanc e varies, in this a rticle the te rm is used to

mean a broad co nception of ocea n management, a s Rothwell and Step hens suggest . See

DR Rothwell and T S tephens, The In ternational L aw of the Sea (2nd edn , Hart 2016) 507;

see also Y Takei, ‘A Sketch o f the Concept of Oce an Governance a nd its Relation ship with

the Law of the Se a’ in C Ryngaer t, EJ Molenaa r and S Nouwen (eds), W hat’s Wrong with

International Law (Brill 2015) 48, 60 .

6 ISO, ‘The ISO St ory’ .

Received: 26 Novem ber 2018 

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  Revised: 30 Apr il 2019 

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  Accepted: 14 June 2019

DOI: 10 .1111/reel .12303

SPECIAL ISSUE ARTICLE

The contribution of the International Organization for

Standardization to ocean governance

Makoto Seta

© 2019 John Wiley & Sons Ltd, 9600 Garsi ngton Road, Oxford OX4 2DQ, UK and 350 Main Stre et, Malden, MA 02148, USA.

Correspondence

Email: seta@yokohama‐cu.ac.jp Private standar d setting by non‐State actors has gained in creasing attention and has

expanded to regulating various activities. Maritime activities are no exception. The

International Organization for Standardization (ISO) sets private standards to gov‐

ern maritime activities in cooperation with the International Maritime Organization.

These ISO stan dards are incorporated in the United Natio ns Convention on the Law

of the Sea system and w ill likely play a more impor tant role in the future. However,

the relationship bet ween these st andards and the law of th e sea has not yet been

analysed. This ar ticle therefore examines t he contribution of private sta ndards, espe‐

cially those set by the IS O, to ocean governance and evaluates this contrib ution from

a global administr ative law perspec tive. Since the ISO is the l argest entity t hat sets

private standa rds, it can serve as a model for other non‐State a ctors that set private

standards to govern maritime activities.