International Maritime Law from the Russian Perspective

A Comprehensive Guide for Shipmasters, Lawyers and Cadets

Vasiliy Gutsulyak

• Publisher: Universal-Publishers
• Year: 2017
• eBook ISBN: 9781627341912
• Topic: Law
• Subtopic: Maritime Law
• Index: Law

This book is one of the most comprehensive guides to international maritime law from the Russian perspective. It consists of three relatively independent sections: Russian Maritime Law, International Public Maritime Law, and International Private Maritime Law.°First section discusses the development of the maritime law as a branch of the Russian law. It examines concepts and sources of the Russian federal laws, secondary legislation and customs, including the influences guiding the future of Russian law of the sea.°The second section examines International Public Maritime Law including the principles, sources, subjects, as well legal status of the vessel, including the vessel's state flag, her name, state registration, the problem of "flags of convenience", vessel's documents, the crew, and the master. This section further details the current international legal regime of maritime spaces, provisions concerning legal protection of marine environments, ensuring navigation safety, international legal regulation of the work of seamen, international inter-governmental marine organizations, and settlement of international public marine disputes.°The third section is devoted to International Private Maritime Law and discusses its principles and sources, conflict-of-law rules, structure and types, and the main choice-of-law principles used today in international private maritime law. This section also discusses the following institutions and sub-branches within international private maritime law including: carriage of cargoes and passengers by sea, general average, salvage, collisions of vessels, marine insurance, limitation of liability, international non-governmental maritime organizations, and settlement of international private marine disputes.

Section II

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PUBLIC INTERNATIONAL MARITIME LAW

1. General Part

Chapter one

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Concept, Sources and Principles of Public International Maritime Law

1. Concept of public international maritime law1

Public international maritime law (or Public international law of the sea) is a branch of public international law, which includes the legal rules governing relations between states and other subjects of international law in connection with the use of the World Ocean.

The term “public” (from the Latin “publicum”) is essentially synonymous with the word “state” because we are talking about the general (public) or national interests related to the use of the World Ocean.

The primary element of public international maritime law is legal norms, i.e. the legally binding maxims of law.

The so-called international usages, or comity, non-observance of which does not entail legal liability, are not the legal rules. To a comity can be attributed, for instance, the maritime ceremony to show respect to a warship from a merchant ship. That ceremony is expressed in a slow single lowering of the flag to one-third of the halliard’s length and the same slow raising of it to its usual place. The warship usually answers to this salutation in the same manner.

Another example of comity is the ritual of committing dead body to sea with an afterfeast of all honors.

Unlike internal law, the norms of public international maritime law have a number of features.

While the legal norms in internal law usually consist of three elements — hypothesis (condition of realization of a norm), disposition (the rule of conduct) and sanctions (consequence of the norms violation) — an extraordinary majority of public international maritime law’s norms only include disposition.

In internal law, fulfillment of norms is secured by legal enforcement. At the same time, compromises and mutual concessions are inherent for public international maritime law. As public international maritime law does not know any supranational bodies of legal enforcement, the proper observance of international legal norms is in fact guaranteed on a voluntary basis.

The process of forming the norms of public international maritime law radically differs from the creation of norms of internal law. In public international maritime law, norms are created through reconciliation of states’ positions.

In public international maritime law the following are distinguished:

1. non-mandatory norms (jus dispositivum), derogation from which is possible by agreement of parties;
2. imperative norms (jus cogens), derogation from which is impossible. Any norm which contradicts the imperative one is legally null and void.

Those norms which establish a particular rule of behavior are called material norms. While the norms which regulate just the process of norms’ creation and implementation are called procedural norms.

The next level, higher than norm, in the system of public international maritime law is an institution, which is defined as certain body of international legal norms joined by common subject of legal regulation. Examples of institutions are: the institutions of continental shelf, exclusive economic zone, marine emergency incidents, pilotage, etc. Several institutions of public international maritime law had formed as early as high antiquity (e.g. an institution of salvage), other in the last decades (e.g. an institution of archipelagic waters).

But the main subdivision of public international maritime law, subject of which is a relatively big complex of similar international relations, is a sub-branch. It is possible to mark out such sub-branches of the contemporary public international maritime law as a regime for marine expanses, protection of marine environment, ensuring of safety of shipping, etc.

It is clear that the distinction between sub-branch and institution is sometimes difficult to be drawn, being rather symbolic.

Existence of certain hierarchy between the norms is typical for the public international maritime law as a system. Thus, the norms of universal international treaty such as International Convention for the Safety of Life at Sea, 1974 (SOLAS-74/78) would apparently be higher in their legal significance than the norms of such regional treaty as Paris Memorandum of Understanding on Port State Control, 1978.

Besides, an internal consistency must be inherent in the norms of public international maritime law.

The UN Convention on the Law of the Sea, 1982 (UNCLOS-82) plays a role of a peculiar Constitution in public international maritime law. It is obvious that the norms of any international treaty cannot contradict its provisions. Also, the norms of bilateral agreements must comply with those of multilateral agreements, participants of which are corresponding states.

2. Sources of public international maritime law

The norms, institutions and sub-branches determine the inner shape of the system of public international maritime law. While the exterior form of expressing the norms of public international maritime law is its sources. The latter may be determined as official legal forms of existence of public international maritime law’s norms.

Two universally recognized sources — custom and treaty — are distinguished in public international maritime law.

One of the features of public international maritime law is that it has formed mostly from customary norms. While in all internal law systems the role of custom steadily decreased, in public international maritime law this source traditionally played and continues to play a considerable role.

In accordance with Article 38 of the Statute of the International Court of Justice, international custom is defined as “evidence of a general practice accepted as law”.

Therefore, the starting point of custom is practice. Customary law is a product of practice. What does the practice imply? Essentially, this is the actual actions of states, concerning international relations.

It is important to note that both certain actions of states and renunciation of the actions should be recognized as a practice. The latter can be considered as a kind of “passive” practice. A tacit consent of international community in response to the actions taken by a state or group of states on the international or regional levels promotes formation of the customary norms of international law.

The second necessary element of a custom is the explicit recognition by states of a rule as customary law, known in international law as opinio juris.

Thus, international legal custom is understood as the legally binding rule formed as a result of its actual and uniform application by states during more or less long period of time and recognized by them as such.

Often the term “custom” is used in a broad sense, when it is understood not as a legal norm but as a non-legally binding rule established as a result of uniform practice. In the latter case, we are dealing with the above-mentioned usage. This is an actually established rule, which can be followed by states, although without sign of binding power.

The peculiarity of international legal custom is in that, unlike conventional rules, which exist in written form in an agreement’s text, it has not any properly fixed written form, and, therefore, it is often called an unwritten norm.

An advantage of custom is in that it leads to creating international law’s norms of universal nature.

Another positive feature of custom is that it regulates relations between states which have not concluded a treaty owing to some circumstances. The mentioned provision was formalized in the Vienna Convention on the Law of Treaties, 1969 constituting that the issues not regulated by the Convention are still regulated by the norms and principles of common international law.

The main disadvantage of custom in comparison with conventional rule is a certain vagueness of the normative content of the first, stemming from less level of consistency in states’ positions. Besides, the difficulties of application of a custom in judicial practice are obvious. This is because, apart from the fact of violation of a legal norm itself, it is necessary to prove its existence as a custom. Disputes about presence or absence of a customary rule is the main, if not fundamental, problem of the law enforcement practice on a custom. It is notable in connection with this that Prof. V.S. Vereshchetin, a former Judge of International Court of Justice, once said that even today the custom is still a mystery to him.

In today’s development of international legal custom the following trends may be identified.

First, the process of creation of a custom became more dynamical. Now it does not require a long practice, as it was in Middle Ages.

Second, at present the conventional rules quantitatively force out the customary rules owing to their greater clarity, specificity, and advantages in the process of law enforcement.

One further important trend in evolution of international legal customs is their transformation into conventional rules.

This, however, does not mean that in such a transformation, the international legal custom itself disappears. It keeps its regulative function in the relations between subjects of public international maritime law, which have not conclude an agreement between each other due to some circumstances.

According to Article 1 of the Vienna Convention on the Law of Treaties, 1969, international treaty is an agreement concluded between states in written form and regulated by international law, irrespective of whether such a treaty is contained in one, two, or several documents related to each other, and also independently of its specific name. The juridical essence of international treaty lies in explicit agreement between parties.

By applicability to the participants of international relations, treaties are divided into universal, regional and local ones.

Universal treaties regulate relations of all or at least large majority of the subjects of public international maritime law. An agreement may be universal even if its participants are the limited number of states, but its provisions are recognized in some or other form by all other states. Such universal international treaties include the Antarctic Treaty, 1959.

Regional international treaties are in force, as a rule, in a certain geographical area. Nevertheless, this does not mean that the states of another region cannot be participants of a regional international treaty. The Convention for the Protection of the Mediterranean Sea Against Pollution (Barcelona Convention, 1976) is an example of the regional international treaty.

Local agreements include international treaties effective among a limited number of participants. They, particularly, include bilateral marine treaties, such as the US-Russia Inter-Governmental Agreement on Maritime Transport, 2001.

Depending on the level of the parties concerned, international treaties are divided into:

1. inter-state agreements (e.g. the Agreement on Co-operation Regarding Maritime Search and Rescue Services among Black Sea Coastal States (Ankara Agreement), 1998).
2. inter-governmental agreements (e.g. the Russia-China Intergovernmental Treaty on cooperation in shipping, 1994).
3. inter-departmental agreements (e.g. the Russia-Vietnam Agreement between the Ministries of Justice, 1998).

It should be noted that in no way one can oppose the treaty and the custom. Both of these main sources of public international maritime law are necessary for full-fledged regulation of international relations in connection with the use of the World Ocean.

As sources, treaty and custom are not mutually exclusive. Reciprocal obligations of states can emerge both from a treaty and a custom.

At the same time reality show us a lot of examples of that the number of treaties are growing rapidly (the number of the UN-registered treaties already exceeds 30 thousand), while the number of customs is relatively low — in the words of Prof. M.I. Lazarev, “they can be counted on one hand”.

3. Principles of public international maritime law

Principles of law are the norms of the most general nature. Thus, in the decision of the International Court of Justice in 1974 on the dispute between the United States and Canada on the border in the Gulf of Maine, it is indicated that the use of the term “principles” is justified because it is dealt with more general and fundamental norms.

The principles of public international maritime law have the highest legal force and are fundamental elements. They are among so-called “jus cogens” norms (“jus cogens” is the Latin for “indubitable right”), which are of mandatory nature. This means that derogation from them is unacceptable under any conditions and can not be canceled even by an agreement between states.

One should distinguish between the general principles of public international law as a whole, valid in particular for public international law of the sea, and branch principles (or special principles) which are in effect within public international law of the sea.

The first were secured in the UN Charter, the Declaration on Principles of International Law, concerning friendly relations and cooperation, in accordance with the UN Charter, adopted by the UN General Assembly in 1970 (Declaration of 1970), in the Conference on Security and Co-operation in Europe (CSCE) Final Act (Helsinki Act, 1975), in several UN Resolutions and in other international legal acts. Among them, the most important are:

1. The principle of respect for human rights. In accordance with this priority, in our opinion, principle, the states in any activity, including that in the World Ocean, are obliged to ensure respect for human rights. The mentioned principle is reflected, in particular, in the Universal Declaration of Human Rights (1948), the Covenant on Economic, Social and Cultural Rights (1966), European Convention on Human Rights (1950), the Charter of Paris for a New Europe (1990) and others.
2. The principle of sovereign equality of states means that all states by virtue of their sovereignty are legally equal in mutual relations. They have equal rights and duties as the members of international community, regardless of their size, geographic location and other factors.
3. The principle of non-use of force in international relations prohibits the use and threat of force, which is allowed only by the decision of the UN Security Council or in the exercise of the right to self-defense.
4. The principle of non-interference is one of the fundamental principles of contemporary internat...

Table of contents

• Cover Page
• Half Title
• Full Title
• Copyright
• Contents
• Preface
• Introduction
• Section I: Russian Maritime Law
• Section II: Public International Maritime Law
• Section III: Private International Maritime Law
• Bibliography