Every Citizen and seafarer must understand and need to know Law, types of law and how these laws are being implemented & adopted by Country, bodies who are making the law. No one can remember the whole maritime law, however below pointed out articles for reference , which will be good for sea staff, surveyors, owners, managers, educationalists, lawyers and those concerned with maritime operations.
- International law,
- Customary law and
- 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.
- derives from practice followed continuously in a particular location, or by particular States, such that the practice becomes accepted as part of the law in that location or of those States.
- is ascertained from the customary practice of States together with evidence that States regard these practices as a legal obligation.
- is sometimes regarded as the foundation stone of international law.
- A treaty is a written international agreement between two States (a bilateral treaty) or
- A treaty between a number of States (a multilateral treaty),
- which are binding in international law.
- Treaties are usually made under the auspices of an internationally accepted organisation such as the United Nations or one of its agencies, such as International Maritime Organisation (IMO) or International Labour Organisation (ILO).
- Treaties are binding only on those States which are parties to the treaty (sometimes called “convention countries”),
- but they may be binding even on non-party States if their provisions are also a part of customary law.
- Treaties are generally first drafted (often by a specialist committee), then considered for adoption by a formally convened conference attended by representatives of States which are members of the sponsoring organisation.
- Drafting and adoption may take several years, although where quick responses are required in urgent cases, governments may be willing to accelerate this process.
- Once the conference has formally adopted a treaty it will be opened for signature by States, often for 12 months, after which it will remain open for accession.
- A treaty will often contain provisions wherein a State may become a party by either:
- Signature alone (without reservation as to ratification, acceptance or approval); or
- Signature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval; or
- Accession. Means the act of joining a treaty by a party that did not take part in its negotiations, as defined by article 15 of the Vienna Convention on the Law of Treaties.
- Where a State chooses the “signature subject to ratification” option the signature must be followed by deposit of an instrument of ratification with the host organisation (called the “depositary”).
- The words “acceptance” and “approval” basically mean the same as ratification, but pose fewer legal or constitutional problems. Many States choose the “subject to ratification” option since it gives them the chance to enact national legislation to give legal effect to the treaty’s provisions before entering into treaty commitments.
- Accession is the method used by a State to become a party to a treaty which it did not sign while it was open for signature. Technically, the State must deposit an instrument of accession with the depositary before the treaty becomes binding on the State.
- It may take several years before an adopted treaty enters into force (i.e. becomes binding on those governments which have formally accepted it by one of the above methods).
- A treaty normally enters into force in accordance with criteria incorporated into the treaty itself, e.g. 12 months after a stipulated number of States have become parties to it.
- A treaty usually has no legal effect in an accepting State until it has been incorporated by statute into the national law of the State (although some States give direct effect to treaties without national legislation).
- The duties of salvors in the UK would not be legally affected by the International Convention on Salvage 1989, for example, had the terms of the Convention not been embodied in the Merchant Shipping Act 1995 (see H05c).
- The more States that become parties to a treaty, the greater the influence that treaty will have on the development of customary law.
The law of the sea has been made at various United Nation Conferences on the Law of the Sea (UNCLOS)
The chief international treaty-making bodies making provisions which regulate merchant shipping are:
The International Maritime Organization (IMO)
The International Labour Organization (ILO)
The World Health Organization (WHO) and
The International Telecommunications Union (ITU)
Will discuss these law bodies and organisations in next articles….
References: ….Articles from IMLI (International Maritime law institute) , books The Shipmaster Business companion..
Contributed by: Prashant Kumar, The Author has over 17 years of experience in shipping, presently working as Deputy Technical Manager. The views are his own and do not represent his employer.