Maritime Safety in Europe

A Comparative Approach

Justyna Nawrot, Zuzanna Pepłowska-Dąbrowska, Justyna Nawrot, Zuzanna Pepłowska-Dąbrowska

• Publisher: Informa Law from Routledge
• Year: 2020
• ISBN:
  9781000245943
• Edition: 1
• Topic: Law
• Subtopic: Maritime Law
• Index: Law

The book is concerned with the harmonisation of maritime safety legal systems in Europe. It describes maritime safety legal systems in selected European countries as well as maritime safety issues from the perspective of the International Maritime Organisation, European Union, and European Free Trade Association. Distinguished scholars from Europe's leading maritime law academic centres present national perspectives of maritime safety systems, questioning whether the adopted national solutions guarantee the compatibility with IMO and EU legal regime, as well as assessing the global and EU system. Moreover, the book seeks to provide some answers as to whether the IMO goals on maritime safety are adequate in light of current safety challenges and how to achieve higher level of enforcement of internationally-recognised maritime safety standards. It will be of great assistance to those readers who need to familiarize themselves with current problems inherent in maritime safety, whether that be lawyers, scholars, professional mariners, or national institutions.

Chapter 14 of this book is freely available as a downloadable Open Access PDF at http://www.taylorfrancis.com under a Creative Commons Attribution-Non Commercial-No Derivatives (CC-BY-NC-ND) 4.0 license.

Part I

International and European perspective

CHAPTER 1

Implementation of IMO treaties into domestic legislation

Implementation and enforcement as the key to effectiveness of international treaties

Dorota Lost-Siemińska¹

1 The author is a staff member of the International Maritime Organization. The views expressed in this chapter are of the author alone and do not represent the views, decision or policies of the International Maritime Organization.

1.1 Background

Given the key role that international shipping plays in the movement of goods from one country to another, there can be no doubt that ships and the seas and oceans in which they sail, no less than ports and cities, must be kept as safe and as clean as we can possibly make them. Due to the international dimension of shipping and its inherently dangerous nature, the international community has recognized the need for conformity and unity in standards through the global regulation of shipping.

Sixty-two years ago, the inaugural meeting of the International Maritime Organization (IMO) was held in London.² As a specialized agency of the United Nations, the principal objective of the Organization is to

2 The Convention on the International Maritime Organization (Geneva, 1948) was adopted in Geneva in 1948 at a diplomatic conference held under the auspices of the United Nations Economic and Social Council. The Convention entered into force in 1958 (UNTS 4214). Originally the Organization was named Inter-Governmental Maritime Consultative Organization. This name was changed to International Maritime Organization (IMO) in 1982. Amendments to the title and the substantive provisions of the Convention on the International Maritime Organization, adopted by the Assembly of the Organization by Resolution A.358 (IX) of 14 Nov. 1975 and A.371 (X) of 9 Nov. 1977 (rectification of Resolution A.358 (IX)). A consolidated version of the Convention is available in Basic Documents Volume I, International Maritime Organization, 2018.

provide machinery for co-operation among Governments in the field of governmental regulation and practices relating to technical and related administrative and legal matters of all kinds affecting shipping engaged in international trade, [and] to encourage and facilitate the general adoption of the highest practicable standards in matters concerning maritime safety and efficiency of navigation.

Since its inception, the IMO has built a multifaceted legal regime for international shipping to ensure safe navigation on clean oceans.

The Organization, as of January 2020, has 174 Member States and three Associate Members (Hong Kong, China, Macau, China and the Faroe Islands).³ Numerous intergovernmental and non-governmental organizations enjoy an observer status with the IMO and take an active part in its work.⁴ Since the Organization doesn’t have an operational arm, its role is primarily of a regulatory nature. In fulfilling its mandate, the IMO provides an international forum for Governments to consider issues of concern and to develop global standards which are then transformed by individual States into their national regulations. The global uniform standards may be formulated in treaty instruments which are legally binding on those States which commit to be bound by them, or they may be developed as regulations, rules, guidelines or recommendations of a non-mandatory nature. Over 50 treaties, hundreds of codes and guidelines that were developed under the auspices of the Organization, govern every aspect of the shipping industry: the construction, design, equipment of ships, the training of seafarers, protection of the marine environment from pollution emanating from ships and liability and compensation matters. Shipping is continuously environmentally friendly, and the main focus of the Organization in the second decade of the 21st century is on the adoption of further measures to make shipping even cleaner.⁵

3 The United Kingdom of Great Britain and Northern Ireland was the first country that ratified the Convention on 14 February 1949. The newest Member, Armenia, joined the Organization in 2018. Membership of the Organization is regulated in Part III of the IMO Convention.

4 The participation of non-governmental organizations in the work of IMO is regulated in Rules and guidelines for consultative status of non-governmental international organizations with the International Maritime Organization. The Rules are adopted by the Assembly and its latest version was adopted on 4 December 2019 in resolution A.1144(31) available on IMODOCS (https://docs.imo.org/Category.aspx?cid=34, last accessed on 9 September 2020).

5 Rosalie P. Balkin, ‘The IMO and Global Ocean Governance: Past, Present and Future’ in D. J. Attard, R. P. Balkin and D. W. Greig (eds), The IMLI Treatise on Global Ocean Governance: Volume III (Oxford Public International Law, 2018), ch. 1. More information on the history of the IMO can be found on www.imo.org/en/About/HistoryOfIMO/Pages/Default.aspx.

Most IMO treaties are ratified by a high number of States and are binding for over 99% of the world’s merchant fleet. In accordance with the principle of a ‘no more favourable treatment’ enshrined in many IMO treaties, even those ships which fly the flag of a non-State party must still comply with international regulations when coming to a port of a State party. However, the negotiation and adoption of a treaty, and then its ratification and global entry into force would be meaningless without national implementation and enforcement of its provisions. Even after a treaty has been implemented, subsequent frequent amendments create a need to continuously update domestic legislation to keep current with technological developments and changes in the shipping industry. States bound by treaties must ensure that the administration and the industry comply with the obligations that the regulations impose.

1.2 IMO legal framework

1.2.1 Categories of IMO treaties

Article 2 of the IMO Convention recognizes that in order to achieve its fundamental purposes, the Organization shall provide for the drafting of conventions, agreements and other suitable instruments.⁶ Some important conventions, such as the International Convention for the Safety of Life at Sea (SOLAS) and the International Convention for the Prevention of Pollution of the Sea by Oil (OILPOL) had already been developed prior to IMO’s creation in 1958, so the Organization was tasked with ensuring that they remained up to date.⁷ Others, in particular those treaties which relate to the enhanced protection of the marine environment and the liability and compensation for pollution damage, were developed once the need arose. Most conventions adopted under the auspices of the IMO can be divided into three general categories: maritime safety and security, prevention of marine pollution and liability and compensation, particularly for damage caused by pollution. There are, however, other related conventions dealing with matters such as salvage, facilitation and unlawful acts against the safety of navigation which also fall within the purview of the IMO.

6 Art. 2 (a) of the IMO Convention provides that the Organization shall ‘subject to the provisions of Art. 3, consider and make recommendations upon matters arising under Art. 1(a), (b) and (c) that may be remitted to it by Members, by an organ or specialized agency of the United Nations or by any other intergovernmental organization or upon matters referred to it under Art. 1(d)’.

7 The first version of SOLAS was adopted in 1914 in response to the Titanic disaster. It was further revised in 1929 and in 1948. IMO Member States considered and adopted SOLAS in 1960 but a completely new version of the convention was adopted in 1974.

The core IMO treaties, such as SOLAS 1974,⁸ International Convention for the Prevention of Pollution from Ships (MARPOL),⁹ International Convention on Civil Liability for Oil Pollution Damage (CLC),¹⁰ Convention on the International Regulations for Preventing Collisions at Sea, 1972 (COLREG)¹¹ and Convention for the Suppression of Unlawful Acts against the Safety of Navigation (SUA),¹² are nearly universally accepted since they are ratified by States representing more than 99% of the world’s merchant shipping fleet. Other IMO treaties, such as the Nairobi International Convention on the Removal of Wrecks which has 44 States parties,¹³ have entered into force but are not as universally accepted as the core treaties.

8 International Convention for the Safety of Life at Sea (London, 1974), ((signed on 1974, entered into force on 1980) 1184, 1185 UNTS 18961).

9 Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, (1973) ((signed on 1978, entered into force on 1983) 1340, 1341 UNTS 22484).

10 International Convention on Civil Liability for Oil Pollution Damage (Brussels 1969), ((signed on 1969, entered into force on 1975) 973 UNTS 14097). This Convention was amended in 1992 by a Protocol (UNTS 1956).

11 Convention on the International Regulations for Preventing Collisions at Sea (London 1972), ((signed on 1966, entered into force on 1968) 640 UNTS 9159).

12 Convention for the Suppression of Unlawful Acts Against the Safety of Navigation (Rome, 1988), ((signed on 1988, entered into force on 1992) 1678 UNTS 29004).

13 International Convention on the Removal of Wrecks (Nairobi, 2007), ((signed on 2007, entered into force on 2015) UNTS 55565), as of January 2020 there are 48 Contracting States to the Convention, representing 73.16% of the world merchant tonnage.

Generally, IMO treaties apply only to ships on international voyages and only to ships of certain tonnage and size. They have three main objectives: prevention, mitigation and compensation. Treaties like SOLAS and COLREG aim at ensuring safe navigation and preventing collisions at sea by providing for minimum standards for the construction, equipment, operation of ships and traffic separation schemes. SOLAS contains technical regulations that prescribe, among others, requirements for subdivision and stability, machinery and electrical installations, fire protection and life-saving appliances. Chapter XI contains special measures to enhance maritime safety and security. There are numerous codes, recommendations and guidelines adopted to address specific areas of safety.¹⁴

14 There are various codes adopted in relation to safety and security, which are mandatory and form part of SOLAS, like for example the International Safety Management (ISM) Code (originally adopted by resolution A.741(18), the International Maritime Dangerous Goods (IMDG) Code (originally adopted by resolution MSC.122(75), the Code of the International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident (Casualty Investigation Code) (adopted by resolution MSC.255(84), or the International Ship and Port Facility Security (ISPS) Code (adopted by virtue of the amendments to the annex to SOLAS on 12 December 2002).

MARPOL’s main objective is the prevention of pollution of the marine environment by ships from operational or accidental causes. Annex I of...