Public Shipping Law - Case Study Example

Public Shipping Law Table of Contents Aim 2. Introduction 3. matter of International law 4. Regimes and issues in maritime zones a. Introduction b. Internal waters c. Territorial waters d. EEZ e. High seas f. The Right to Innocent Passage 5. Conclusion Introduction- The aim of this paper is to examine the legal regime of the oceans at regional and global levels, providing a basis for a thorough analysis of the core factors contributing to the development of maritime policy at domestic and international level. This paper evaluates the Maritime policies concerning the right to innocent passage which is considered the fundamental aspect in shipping. The legal principles relating to the rights of innocent passage as laid in the Customary International Law in the commercial, environmental and strategic context is discussed. It is further evaluated, how these principles have shaped up in the political, economic and historical contexts. The influence of the judiciary decisions and the various regulatory organizations in the framing of these principles are also considered briefly. For this, the International law is understood and its issues are considered briefly. Further, the sources of the International law framework and the general principles in practice are studied. The integration of the human rights and labor rights into the framework is also understood with particular reference to the employment at sea. Principles governing the law relating to the high seas along with the issues or rights and obligations of the states within the maritime zones relating to territorial sea, internal waters, exclusive economic zones, etc. are explored. As the different states have different practices, the freedom of navigation for merchant as well as naval vessels raised the issue of innocent passage and the principles relating to the same are also considered. Subject matter of International law- Shipping is the largest trade accounting to almost 95% of world trade by weight (Rajadurai, 2004, p 83). This trade is truly international and has importance to any business irrespective of the state of origin or operation. Since, shipping is a necessity by businesses across the world, there is also a need for uniformity in practices to make it safe and accessible. Also, since there are inherent dangers in terms of security in any trade, more so in shipping as it involves maritime transport in dangers waters with almost no monitoring or safety from perils or disasters, there is even more need for a common regulatory framework and enhanced operational safety. As McConville, et al (2005) observe that "regulations in shipping must necessarily be developed at the global level and since it is international and has the potential to offer a uniform platform to maritime players, there is a need for a uniform regulations on matters such as construction standards, navigational rules and standards of crew competence" (p 249). There are various conventions, laws, treaties, etc. and the issues relating to the different nation's rights and responsibilities towards each other are laid in the International law and the various states which constitute the shipping industry decide to abide by its rules. The International law's oldest discipline is the law of the sea and it draws from various sources for its regulations. Custom is seen as the most important of sources with tradition as another important source of the law of the sea (Dupuy, Vignes, 1991, p 60). There are also the Hague rules which were consolidated in three conventions and which related to issues like principles of freedom of navigation, the juridical nature of territorial waters and the rights of the coastal states over same the, the defining of baselines, the regulations of innocent passage by ships, with significance of the contiguous zone and the issues of breadth of territorial waters among others (Dupuy, Vignes, 1991, p 68). Since the sea waters of the Asian and African continents were being utilized by the European of late, established traditions in these two regions needed to be changed and further conventions of the United Nations, after the World War II led to changes and increase in the regulations relating to other areas of maritime transport. There was a political awakening after World War II among the newly formed states and along with the existing developing countries, rallied for changes in the established customary law which was found to be favoring the industrial and the maritime powers. Further, due to the changes in the world's economic, technological and military/strategic issues, the states also became increasingly aware of the importance of the international waters and its use for their economic development, primarily (Dupuy, Vignes, 1991, p 68). In respecting the use of the sea, the member nations have also codified the issues relating to the high seas, the continental shelf fishing, contiguous zone and the conservation of living resources. Right of innocent passage and the special rights of coastal states in the Exclusive Economic Zones (EEZ) have also found place in the later conventions relating to the law of the sea. Realizing the importance of international waters by the states has increased the legal conflicts as well and required the issues mentioned earlier, relating to the use of internal and external waters by one and all in maritime transport. With this requirement, the different conventions relating to the law of the sea with their differences in regulations and conflicts arising among them have constantly convened to amend the same. It can be seen that the United Nations Convention on the Law of the Sea (UNCLOS), The League of Nations Conference for International Law (The Hague), the Convention on the High Seas, Convention on the Territorial Sea and the Contiguous Zone, Convention on the Continental Shelf, Convention on Fishing and Conservation of the Living Resources of the High Seas, along with the Customary International Law have all contributed to the Public shipping law or International Law, as is commonly called. "Provisions for port state control were introduced in a number of conventions, primarily IMO conventions. These include: The 1966 Load Lines Conventions and its 1988 Protocol, SOLAS'74 and its 78 and 88 conventions, MARPOL 73/78, STCW 78-95, and COLREG 98, etc." (Pomborides, 1999, p 55). Regimes and issues in sea waters- Introduction- Due to the importance of sea waters to every state and their interests in safeguarding and utilizing the coastal waters and also the international waters for trade, there are several provisions in the international law and other conventions that empower the states with some exclusive rights over other states, apart from common rights and responsibilities in the high seas. As the number of shipping companies increase coupled with globalization, the concerns of protecting the coastal waters by the respective states also has become a concern. There is the problem of migration, piracy, safety and security along with other technological, environmental and commercial issues and interests that the respective port states might have with respect to sea waters. Hence, the different articles in the various conventions have laid a number of provisions for enabling the smooth and safe trade in the international trade through sea waters. Pomborides (1999) notes, "the port state control allows port states to exercise control over the issues of maritime safety, marine pollution and issues of crew competence and working conditions" (p 47). It is seen that the four conventions of UNCLOS, the final convention of UNCLOS in 1982 and the Customary International Law, all lay regulations regarding the issues like the concept of Baselines, Internal Waters, Territorial Seas, Contiguous Zone or Exclusive Economic Zones (EEZ), High Seas, Right of Innocent Passage, Continental Shelf, etc. A brief description of these terms would enable the understanding of the need for legal regimes in the seas and the development of the maritime of policies. Further, cases like the Corfu Channel case and the Anglo-Norwegian Fisheries case where the conflict of nations for rights over the territorial waters give an idea of the importance of regimes to the various states. While in the Corfu Channel case, specific regulations like Articles 3 and 4 of the International law are used to establish the marine pollution concerns, in the case of Anglo-Norwegian Fisheries, the environmental concerns of the states are established with the International Court of justice formulating two regulations enabling the special rights over expanding of internal waters. This is seen as a historic and socio-economic aspect while in the case of Corfu Channel, it is considered to be more of a humanitarian aspect of the law. Internal Waters- Every state is conferred with rights to protect and safeguard its coastal borders from illegal migration, its ports being used by ships of other states or with no nationality and without proper permission, or even obstruct any maritime or other activity that it may deem unsafe to its national interests. Hence, article of UNCLOS has defined the rights of the port states on the immediate waters to its coast, and defines a baseline which is drawn from the land and can be straight or curved depending on the curvature of the land. Internal waters is the area within this baseline towards the land and every port state has exclusive right to this waters and has the right to even close the area for any ship to port if it deems it as a threat to its safety and security. International law, according to O'Connell (1984) "merely places the duty on a port state to exercise its discretion on granting access to its ports on a non-discriminatory basis" (p 848). Territorial waters- Articles 2 (1) and 3 of UNCLOS have defined the territorial waters as that extending to 12 nautical miles from the baseline and which give rights to port states with some responsibilities. This sovereignty of these states extends to the air space as well. Vessels entering this area are under the jurisdiction of the port states even though they may be belong to a different flag state or even belong to flags of convenience. Port states have rights to jurisdiction in this area according to the customary and conventional international law, for specific purposes like fishing and national defense purposes (Pomborides, 1999, pp 30-31). EEZ- Special zones extended 200NM from the territorial borders with port states exclusive interests in fishing, formation of islands, etc. are called exclusive economic zones. Here, the port states exercise right to indulge in activities for commercial, technological and strategic purposes. As per article 56 of UNCLOS'82, the port states have rights over natural resources of its EEZ for exploring and exploiting, conserving and managing non-living natural resources, all living natural resources as well as any other economic resources (Pomborides, 1999, p 39). High seas- Extending from the EEZ, the high seas favors rights to all states as per article 86 of the 1982 Law of the Sea Convention (Pomborides, 1984, p 41). In this region, the flag state has jurisdiction over the vessels and no port state has any right over the ships transgressing this region. Here, as commonly observed, the ships with flags of convenience are at advantage and many illegal trades and activities have been noticed in the high seas. However, the port states closest to the high seas and which perceive a threat to their national interests have a right to board and search the ship for any suspected violation of safety and security for the common interests and report the violation to the flag states. Articles 86 to 221 lay regulations for rights in the high seas. The Right of innocent passage- Vessels of different states have the right to passage through the territorial waters of a port state for the purpose of their voyage and or to proceed to the internal waters of the port states. Articles 18 and 20 of UNCLOS'82 lay provisions for the innocent passage of vessels through the territorial waters and stress that as long as the passage is innocent and not prejudiced and a threat to the security of the port state, all vessels have a right to passage through these waters. Article 24(1) of UNCLOS'82 lays the obligation of the port states not to obstruct the innocent passage through its waters. Conclusion- It is observed that the customs and traditions of ages in the marine transportation have a major influence in the formulation of the public international law and the customary international law. The subjects of this law are the member states of the various conventions, the ship owners, the flag states, the port states, and the different laws, treaties, conventions, etc. the legal regimes of the seas are defined in these various conventions and the right to innocent passage is the backbone of the marine industry. Hence, it is observed that although the port states have exclusive rights over the territorial waters, ships of other flag states enjoy the freedom to innocent passage through the territorial waters of other states as long as the passage is not threatening the integrity and safety of the port state. Also, due to the nature of the voyage of the ships on the waters being long and tedious, there is a need for harboring, loading and unloading, etc all as part of the international trade. Further, the different laws relating to the regimes and the rights and obligations are also considered and are found to allow the right to innocent passage priority and freedom. Hence, the rights to innocent passage in the territorial waters of a state also restricts the port states to boarding and searching, in case of suspicion, and further report any violation by the ship to the flag state. References- 1. O'Connell, D.P. The International Law of the Sea. Shearer I.A. (ed.), Vol. 2, Clarendon Press, London. 1984. p 848. 2. Capt. Rajadurai, Ambrose. Regulation of Shipping: The vital role of Port State Control. MLAANZ Journal. 18. 2004. p 83 available online at http://www.austlii.edu.au/au/journals/ANZMLJ/2004/7.pdf 3. Dupuy, R. Jean, Vignes, D. A Handbook of the new law of the sea. Martinus Nijhoff Publishers. 1991. p 60-68. 4. McConville, J. et al. International maritime transport: perspectives. Routledge. 2005. p 249. 5. Pomborides, G. P. International Shipping law: legislation and enforcement. Martinus Nijhoff Publishers. 1999. pp 30-55. Read More