Soft or hard law: effective implementation of uniform sea transport rules through the World Trade Organization framework

Today’s average consumers are accustomed to driving cars assembled thousands of miles away from their homes and buying cheap household appliances and electronic goods that have been shipped long distances on sea routes. Nevertheless, we rarely pause to think about the gigantic logistical effort involved in maritime transport, which is indispensable in ensuring the level of our comfort and prosperity. Even further from our thoughts is the idea that promoting international uniformity in maritime transport laws may facilitate the worldwide movement of goods more easily and cheaply.
By volume and weight, around 90–95 per cent of today’s international trade in goods is shipped by sea. Uniform law governing seaborne cargo rules would better facilitate global trade and allow average consumers to access a greater variety of goods more cheaply.
Historically, international regimes regulating maritime transport have aimed to develop uniform rules. However, these rules are relatively static and have been implemented differently based on different national understandings in a de-centralised, State-based manner. This paper explores how these existing rules might become ‘hard law’ rules, using the WTO framework. The place of maritime transport rules within the WTO framework has been insufficiently studied by scholars and practitioners.
This paper argues that greater global uniformity in maritime transport rules could be achieved through the WTO framework. The WTO could update these rules dynamically, and could also enforce them. Unlike other transnational organizations, the WTO is a special organization which has three attributes that make it feasible to unify maritime transport rules within its framework. First, the WTO has 164 members: matching the breadth of the globalised maritime transport business, it potentially enjoys global reach in relation to the governance of the international trade in goods and maritime transport services. The WTO, therefore, has the capacity to develop maritime transport rules of global application.
Also, a WTO-based negotiating forum could generate substantive, uniform seaborne cargo rules in two ways. Through a selective referral approach, it could incorporate the existing non-WTO transport rules to the WTO framework. It could also develop new uniform rules. The WTO also provides international communities with a quasi-judicial procedure — dispute settlement mechanism (DSM) — which could also be used to protect and promote the global uniformity of seaborne cargo rules. Such an approach could further reduce divergent interpretations of uniform transport rules by providing a centralised system for the implementation of those rules.