Compulsory Pilotage and the Law of the Sea: Lessons Learned from the Torres Strait

Abstract

The regulation of navigation by shipping has been one of the longest standing issues confronting the law of the sea. Once states began to assert various forms of control and regulation over their adjacent waters, the issue of regulating the passage of foreign-flagged ships needed to be addressed. While the navigational rights and freedoms of shipping is now relatively settled under both the LOSC and contemporary state practice, a counterpoint to this has gradually emerged over the past 30 years due to a growing environmental awareness by coastal states of the need for enhanced environmental protection and management of not only their waters, but also their marine environmental resources and adjacent coastal areas. One response by coastal states has been to adopt compulsory pilotage regimes under which certain ships are required to take on board pilots, or avail themselves of pilotage services, as they pass through certain waters. Pilotage has a long maritime history, and is closely connected with efforts to secure the safety of shipping and the safety of a port from wayward ships. Once pilotage is required beyond internal waters in the territorial sea of a coastal state including an international strait the LOSC imposes constraints on the coastal state regulation of foreign shipping within those waters. Those rights of the coastal state are not unilateral and must be understood in the context of not only the LOSC but also related mechanisms and frameworks, especially those dealing with ship safety and the regulation of navigation overseen by the International Maritime Organisation (IMO). This essay looks at these issues in the context of a compulsory pilotage regime that has been adopted by Australia and Papua New Guinea (PNG) for the Torres Strait, and then considers what options may be available for equivalent measures to be adopted for the Straits of Malacca and Singapore.