Maritime law 1 Captain Krishnan Maritime Law (march 2010) 1 Maritime law 2 Captain Krishnan International Maritime law International maritime law : is the system of law regulating the relations between sovereign states and their rights and duties with respect to each other. It derives mainly from customary law and treaties. Customary law: derives from practice followed continuously in a particular location, or by particular states, such that the practice becomes accepted as part of law in that location or of those states. It is ascertained from the customary practice of states together with evidence that states regard these practices as a legal obligation. It is regarded as the foundation stone of International law. Treaties: A treaty is a written international agreement between two states( a bilateral treaty) or between a number of states( multi national treaty), which is binding in law. Treaties are usually made under the auspices of the UNO or its agencies such as IMO or ILO. Treaties are binding only on those states which are parties to the treaty( called convention countries); A treaty normally enters in to force in accordance with criteria incorporated into the treaty itself. E.g. 1 year after a stipulated number of states have acceded to it. Treaty making bodies UN Conferences on the Law of Sea (UNCLOS) International Maritime Organisation (IMO) International Labour Organisation(ILO) World Health Organisation(WHO) International Telecommunication Union(ITU) Comite’ Maritime International( CMI) UNCLOS : Three UNCLOS have been convened. UNCLOS I Geneva 1958; UNCLOS II Geneva 1960; UNCLOS III Geneva 1974. UNCLOS III produced an important convention document, generally known as UNCLOS. It contains 446 articles and came in to force on 16 November 1994. Though it was signed in 1982 by as many as 130 states, USA and other super maritime powers did not sign it due to certain clauses in sea bed mining and transfer of technology in UNCLOS . In 1994 a new interpretation has been given to these clauses and these, though not to be called amendments, are to the satisfaction of these states. Many of these super powers have already acceded to UNCLOS. USA too may accede to it in due course. CMI; Comite’ Maritime International has been involved in initiation and drafting of International Maritime Law since the last 100 years. CMI which is a body of learned and experienced people, has no formal, international, legal standing. They have been involved in drafting of following important conventions: Collision 1910 Salvage 1910&1989 Limitation of Liability for Maritime Claims 1924, 1968, 1979 Bill of Lading 1924, 1968, 1979 Arrest 1952 Carriage of Passangers1961 Civil Liability Convention on Oil Pollution 1969 Fund Convention1971 York Antwerp Rules Though in the recent years the role of CMI as initiators of international Conventions, has changed due to creation of UN agencies such as IMO, UNCITRAL( United Nations Commission on International Trade Law), CMI still retain an important advisory role, both to UN agencies and to their respective Governments. CMI has now been asked to review Hague, Hague-Visby and Hamburg Rules. 2 Maritime law 3 Captain Krishnan IMO Purpose: to facilitate inter-governmental co-operation on state regulation and practices relating to maritime technical matters; and to encourage and facilitate the adoption of the highest practicable standards of maritime safety, efficiency of navigation and prevention and control of pollution from ships. Organs: Assembly- highest governing body. It consists of all Member States and meets once in 2 years in regular sessions and in extraordinary sessions if necessary. It elects IMO’s Council. Council- 40 member states elected by Assembly. It is the executive organ of the IMO. Secretariat- secretary general and nearly 300 personal, based at head quarters in London. Instruments Conventions protocols Amendments Recommendations, Codes, Guide lines Resolutions Conventions : Are chief instruments of IMO, being binding legal instruments. A member State which ratifies or accedes to a convention is obliged to put it into effect by making its requirements part of its national law. Ratification involves a dual obligation for a member State; it is both a formal commitment to apply the provisions of the convention, and an indication of willingness to accept a measure of international supervision. Protocols : are important treaty instruments when major amendments/revision are required to be made to a convention. All members to the original Convention are invited to deliberate on the proposed major amendments. For instance 1992 protocol to 1961 CLC and Fund Conventions. A protocol can also be convened for adopting major amendments to a Convention, which, although already adopted, has not yet entered in to force. For example, the protocol of 1978 relating to Marpol 1973. Similarly Solas 1974 also has a protocol of 1978. The combined instrument are called Marpol 73/78; Solas 74/78. Contracting States may a party to the original Convention, but may not opt to sign the Protocol. Amendments : Amendments to a convention, Protocols or their Annexes are made after discussion, agreement and adoption by the IMO Assembly. They are made by adoption of a Resolution document, such as MEPC. 51(32)- Amendment to the annex of the Protocol of 1978 relating to the International Convention for the Prevention of Pollution by Ships, 1973( Discharge criteria of annex I of MARPOL, 73/78. Amendments in early conventions came in to force only after a percentage of Contracting States, usually two thirds, had accepted them. This took several years. Newer Conventions incorporate “tacit acceptance” procedure. Under this, an amendment enters in to force at a particular time unless, before that date, objections are received from a specified number of Parties. Entry into force of IMO conventions and Protocols and Amendments: adopting a convention This is the part of the process with which IMO as an Organization is most closely involved. IMO has six main bodies concerned with the adoption or implementation of conventions. The Assembly and Council are the main organs, and the committees involved are the Maritime Safety Committee, Marine Environment Protection Committee, Legal Committee and the Facilitation Committee. 3 Maritime law 4 Captain Krishnan Developments in shipping and other related industries are discussed by Member States in these bodies, and the need for a new convention or amendments to existing conventions can be raised in any of them. Normally the suggestion is first made in one of the committees, since these meet more frequently than the main organs. If agreement is reached in the committee, the proposal goes to the Council and, as necessary, to the Assembly. If the Assembly or the Council, as the case may be, gives the authorization to proceed with the work, the committee concerned considers the matter in greater detail and ultimately draws up a draft instrument. In some cases the subject may be referred to a specialized sub-committee for detailed consideration. Work in the committees and sub-committees is undertaken by the representatives of Member States of the Organization. The views and advice of intergovernmental and international non-governmental organizations which have a working relationship with IMO are also welcomed in these bodies. Many of these organizations have direct experience in the various matters under consideration, and are therefore able to assist the work of IMO in practical ways. The draft convention which is agreed upon is reported to the Council and Assembly with a recommendation that a conference be convened to consider the draft for formal adoption. Invitations to attend such a conference are sent to all Member States of IMO and also to all States which are members of the United Nations or any of its specialized agencies. These conferences are therefore truly global conferences open to all Governments who would normally participate in a United Nations conference. All Governments participate on an equal footing. In addition, organizations of the United Nations and organizations in official relationship with IMO are invited to send observers to the conference to give the benefit of their expert advice to the representatives of Governments. Before the conference opens, the draft convention is circulated to the invited Governments and organizations for their comments. The draft convention, together with the comments thereon from Governments and interested organizations is then closely examined by the conference and necessary changes are made in order to produce a draft acceptable to all or the majority of the Governments present. The convention thus agreed upon is then adopted by the conference and deposited with the Secretary-General who sends copies to Governments. The convention is opened for signature by States, usually for a period of 12 months. Signatories may ratify or accept the convention while non-signatories may accede. The drafting and adoption of a convention in IMO can take several years to complete although in some cases, where a quick response is required to deal with an emergency situation, Governments have been willing to accelerate this process considerably. Entry into force The adoption of a convention marks the conclusion of only the first stage of a long process. Before the convention comes into force - that is, before it becomes binding upon Governments which have ratified it - it has to be accepted formally by individual Governments. Each convention includes appropriate provisions stipulating conditions which have to be met Before it enters into force. These conditions vary but generally speaking, the more important and more complex the document, and the more stringent are the conditions for its entry into force. For example, the International Convention for the Safety of Life at Sea, 1974, provided that entry into force requires acceptance by 25 States whose merchant fleets comprise not less than 50 per cent of the world’s gross tonnage; for the International Convention on Tonnage Measurement of Ships, 4 Maritime law 5 Captain Krishnan 1969, the requirement was acceptance by 25 States whose combined merchant fleets represent not less than 65 per cent of world tonnage.