By: BANKOLE CLIFFORD EKUNDAYO MORGAN ESQ
LL.M in International Maritime Law
Master in Governance and Leadership
Defence Counsel Legal Aid Board of Sierra Leone
Human Rights Advocate
SHIPPING AS AN INTERNATIONAL ACTIVITY
Shipping as an international activity is fundamental to international trade. It provides a cost-effective means to transport large volumes of cargo around the world. Shipping and seaborne trade have been made possible over the years through the progression from a world of isolated areas to an integrated global community. Essentially, to a very large extent, the economy of the world depends largely on the shipping industry for the movement of goods from one port of loading to its final destination around the world. Goods of whatever kind, be it liquid, gaseous solid, dangerous or noxious of large quantity may be transported at a one go in a single ship. This in essence promotes trade, increase industrial production and enhance the satisfaction of consumers across the globe.
PLEASURE CRUISE LINERS
Further, the increased development of pleasure cruise liners is another major contribution of the shipping industry to world’s economy through recreational facilities in that were customarily limited in land, but now equally enjoyed on board vessels on the oceans. It is very important to state that the success of the shipping industry is however, intricately dependent on the ability, commitment and security of the seafarers who are directly involved in the operation of commercial vessels.
NATIONAL REGULATIONS APPLICABLE TO A SHIP IN A SINGLE VOYAGE
National regulations applicable to a ship in a single voyage is guided by the principle of public international law. Conventions and or treaties set the standard by which nation states should regulate their shipping activities. The territorial sea is under the sovereignty of the coastal state. In the law of the sea, the coastal state has complete jurisdiction over all ship that passes through its territorial sea. This standard is set by Article 2 of the Geneva Convention on the High Seas, 1958. In essence no one state should have monopoly of the use of the high seas, and that there should be freedom on the use of the high seas. The territorial sea is said to be 12 nautical miles from the low waterline (baseline) towards the sea.
COASTAL STATES SOVEREIGNTY
It is important to state that the Exclusive Economic Zone (EEZ) is 200 Nautical miles from the baseline. For instance, the sovereignty of Sierra Leone includes the airspace, the top soil and seabed. Essentially, any mineral found within the EEZ of Sierra Leone, is the property of Sierra Leone and the area of the EEZ forms part of the fisheries waters of Sierra Leone. In law and practice, the use of the High Sea ought to be unrestricted, meaning there should be free access of vessels belonging to all states.
REAFFIRMING THE PRINCIPLE OF COASTAL STATES SOVEREIGNTY
Reaffirming the principle of coastal state sovereignty of the sea is the celebrated case: FRANCONIA 1886 2 XA 3R. In this casethe court at first instance maintained that the collision having occurred within the territorial sea of Britain, he was guilty. Keyan appealed to the Court of Appeal that the English court lacked jurisdiction to try him because he was a foreigner and at the time of sailing he was on a foreign ship on the High Sea. The Court of Appeal overturned the decision of the first court of instance. The Court of Appeal maintained that even though Britain has the right to claim territorial sea, it has not expressly done so and until it is passed by Parliament, British jurisdiction did not extend to foreign ship. The skipper was right to say he was in a no man’s land. Until the irregularity is corrected through legislation, the British jurisdiction did not extend to those waters.
SHIP REGISTRATION, NATIONALITY, DOCUMENTATION & FLYING OF NATIONAL FLAG
Procedurally, states are permitted to set standard with respect ship registration, nationality, documentation and the flying of national flag. These are four crucial and critical aspect in ensuring proper application and understanding of international maritime law. The standard of the above are provided for in Article 91 of the United Nations Convention on the Law of the Sea (UNCLOS). A locus classicus case illustrating the principle of states setting conditions for the grant of nationality to merchant vessels was made in the case of MUSCAT DHOWS.
THE ROLE OF THE INTERNATIONAL MARITIME ORGANIZATION (IMO)
The International Maritime Organization (IMO) has been widely known for its effort in guaranteeing that there are in place unified international conventions, model laws, and guidelines in order to ensure the level playing field is created for all states to maximise its potential in shipping activity in the international scene. Principally, one fundamental attributes of the International Maritime Organization is it’s recognition by nation’s states on the relevance of international shipping activity to the welfare of individual nations and to the world economy in general. It has been estimated by the UN Trade and Development (UNCTAD) that overt 80% of world trade volume is carried by sea. This percentage was given by UNCTAD in its latest Review of Maritime Transport in 2024. Thus, the need for making this method of transportation of goods crucially important and the need for proper regulation of the shipping industry vital.
IMO IN CREATING THE ENABLING ENVIRONMENT FOR SHIPPING ACTIVITY
The International Maritime Organization (IMO) is widely known and hugely appreciated by seafarers for creating the enabling environment for effective and efficient international shipping activity. For instance, the recognition of the essentially international character of the shipping industry; while some cargo ships may operate within and around the coasts of the states whose flag they fly, and most are engaged in international voyages. Consequently, despite the centuries old intensive rivalry among trading nations, governments have come to understand that shipping can be regulated effectively only through cooperation at the international level, and this cooperation has been effectively coordinated by the IMO. The plain truth is that global ocean governance encompasses cooperation not only among those governments which are major suppliers of shipping services but also among those governments which are major consumers of those services. This, in effect entails the involvement of all states.
IMO PROIRITIZING GLOBAL STANDARDS AS A PREREQUISITE
IMO has always prioritised global standards as a prerequisite for the effective and efficient application of international maritime law. The IMO has always emphasised on the application of provisions of convention to be applied equally to all states. The watchwords of IMO in the formulation of conventions have been efficient, effective, and that safety standards have to be uniformly applied at the global level. In the case of shipping, safety is not divisible. Badly constructed ships or those insufficiently manned or manned by insufficiently trained personnel or those too poorly equipped to handle emergency situations are high-risk enterprises. Not only might they be prone to running into difficulties at sea, putting those on board as well as their cargoes in danger, there is also the possibility that they might put at risk those ships and crew that come to their assistance.
IMO AND THE ISSUE OF SUB-STANDARD OR CARELESSLY MANAGED OIL TANKER/CARGO SHIP
IMO has in the strongest of terms condemned the issue of a sub-standard or carelessly managed or operated oil tanker or cargo ship. According to IMO, if involved in a grounding or collision, has a high risk of causing serious and lasting damage to the marine environment. The same considerations apply in the case of ships carrying other types of hazardous cargo, especially if carried in bulk. Uniformly high international standards and regulations, provided they are also applied uniformly, are the best way to prevent such accidents from occurring.
IMO’s ROLE IN THE PROCESS OF UNIFICATION OF INTENATIONAL MARITIME LAW
The thorough application of the uniform international regulations are needed to help avoid unfair trade practices and to help avoid unfair commercial advantages flowing to shipping companies that fail to adopt global regulations. The adoption of international standards, uniformly applied, is seen to create a ‘level-playing field’ and to establish a healthier basis for competition. It also assists in lessening the problems associated with ‘flag-shopping’, that is, the practice of changing the place of registration of a vessel in order to avoid the application of IMO regulations.
ARTICLE 1 OF THE IMO CONVENTION
Importantly, as provided for in Article 1 of the IMO Convention, the IMO’s role in the process of unification of international maritime law is to provide the appropriate ‘machinery for cooperation among Governments’ to enable them to adopt ‘the highest practicable standards’ in matters concerning maritime safety, efficiency of navigation, and protection of the marine environment. It does this through providing an international forum at its headquarters building in London where governments can meet on a regular basis to discuss the issues of the moment and to seek mutually acceptable solutions. Article 2 of the IMO Convention, provides the functions of the IMO.
THE FOUR PILLARS IN THE INTERNATIONAL MARITIME LAW
The four pillars in the International Maritime Law is very fundamental, and my presentation will go without a ceiling if I fail to talk about the four pillars of the international regulatory regime for quality shipping. Quality shipping means promoting the highest standards of health, safety and environment protection, with these requirements covered under the ‘International Convention for the Safety Of Life At Sea’ (SOLAS), the 1978 International Convention on ‘Standards of Training, Certification and Watch-keeping’ (STCW), the ‘International Convention for the Prevention of Pollution from Ships’ (MARPOL) and the ‘Maritime Labour Convention’ (MLC). To this end, these Conventions are characterized as the four ‘pillars of the international regulatory regime for quality shipping’.
SOLAS CONSTITUTE THE FIST PILLAR OF THE INTERNATIONAL REGULATORY REGIME
Principally, SOLAS constitutes the first pillar, while under it, ships flagged by signatory-States comply with the minimum safety standards concerning construction, equipment and operation. At this point, it is remarkable to mention that the first SOLAS Convention was adopted on 20th January 1914 and entered into force in July 1915. The sinking of the Titanic, on 14th April 1912, after colliding with an iceberg was the catalyst for its adoption.
STCW IS THE SECOND PILLAR OF THE INTERNATIONAL REGULATORY REGIME
The second pillar of the international regulatory regime for quality shipping is the STCW for seafarers, which entered into force in 1984. It sets qualification standards for masters, officers and watch personnel, on seagoing merchant ships.
MARPOL IS CHARACTERIZED AS THE THIRD PILLAR OF THE INTERNATIONAL REGULATORY REGIME
The MARPOL is characterised as the third pillar which was adopted in 1973 at IMO, covering prevention of pollution of the marine environment by ships from operational or accidental causes.
In the 94th International Labour Conference held in 2006, member states adopted the MLC, with the aim to provide international standards for the world’s first genuinely global industry, ensuring decent work for seafarers around the world.
THE MLC, 2006 IS CONSIDERED TO BE THE FOURTH PILLAR OF THE INTERNATIONAL REGULATORY REGIME
The Maritime Labour Convention, 2006 as amended, (MLC, 2006) is being referred to as a convention of great importance, and considered to be the fourth pillar of the international regulatory regime for quality shipping. The Maritime Labour Convention, 2006 as amended, (MLC, 2006), was adopted by the 94TH (Maritime) session of the International Labour Conference (ILC) on the 23rd day of February, 2006. This Convention revises and consolidates 37 existing Conventions and the related recommendations.
CONCLUSION
It is evident from the above that the unification of conventions, model laws and guidelines are very essential for a peaceful co-existence of member’s states. In essence uniformity brings advantages to member states and the proposed regime must not clash violently with the domestic law of the countries involved in seeking uniformity. Where clashes are perceived at the drafting stage, rights of reservation may need to be inserted in the instrument in respect of the offending provisions. This will mean that states can exercise the right of reservation and national legislatures can in the implementing legislation adopt their own provisions. This process has served to preserve the form of international uniformity but sometimes at the expense of uniformity of substance.
