Understanding the Law (Convention, Protocols, Code)

We seafarers who are not maritime lawyers and hence the Legal terms confuse us. There are so many terms associated with the IMO conventions, and other associated Codes.  One thing that no seafarers can avoid is to not to deal with IMO conventions and codes.

Protocol, code, resolution, treaty, convention, circulars, amendments, law, notices and much more. Even sometimes it becomes difficult to answer the examiner and explain these terms wisely.

So let us start with some of these terms

International Law

There is not really such a thing as International Law, rather it is a system of law regulating the relations between sovereign states and their rights and duties with respect to each other. It is made from 'Customary Law' and 'Treaties'

Customary Law

This is made from practise followed continuously in a particular location, or by particular states, such that the practise becomes accepted as part of the law in that location or of those states.

Treaties

A treaty is a written international agreement between two states (bilateral treaty) or between a number of states (multilateral treaty), which is binding in international law. Treaties are usually made under the auspices of an internationally accepted organisation, such as the United Nations (UN) 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, but they may be binding even on non-party states if their provisions are also a part of customary law.

International Conventions

A convention is a formal multilateral agreement between participating states. It can be called an International Law and regulates the relationship between those states with reference to Subject of the Convention. However there is no international law enforcement agency, this can only be enforced by the participating states concerned when it is implemented in a States (country’s) own legal system.

SOLAS convention is not a law itself. But when a country adopts and includes it as legislation in their country, it becomes law for them. UK, Singapore and India have included it in own national law called Merchant Shipping act. USA call it CFR.

Adopting a convention

IMO has six main bodies concerned with the adoption or implementation of conventions.  The Assembly and Council are the main organs, and the committees involved are:

  • the Maritime Safety Committee,
  • the Marine Environment Protection Committee,
  • the Legal Committee, and
  • the Facilitation Committee.

The Council or the Assembly would set a date for the conference for the adoption of the convention and communicate this date to all the participating states. The draft convention is also circulated to all the participating states for their comments. The committee examines the comments (if any) from the various states to amend the draft convention before the conference.

In the conference, the amended draft convention is presented to the member states. Once the majority of the member states present agree with the final draft of the convention, it is formally considered adopted. The adopted convention is then sent to the Secretary General of the IMO who sends the copies to all the member states.

For example:

  • International Convention for the Safety of Life at Sea (SOLAS), 1974 was adopted on 1 November 1974
  • International Convention for the Prevention of Pollution from Ships (MARPOL) was adopted on 2 November 1973
  • International Convention for the Control and Management of Ships' Ballast Water and Sediments (BWM) was adopted on 13 February 2004

Developments in shipping and other related industries are discussed by Member States in these bodies, and the need for a new convention or amendments to existing conventions can be raised in any of them.

The adoption of a convention marks the conclusion of only the first stage of a long process.  Before the convention comes into force - that is, before it becomes binding upon Governments which have ratified it - it has to be accepted formally by individual Governments.

The terms signature, ratification, acceptance, approval and accession refer to some of the methods by which a State can express its consent to be bound by a treaty.

Signature
Consent may be expressed by signature where:

  • the treaty provides that signature shall have that effect;
  • it is otherwise established that the negotiating States were agreed that signature should have that effect;
  • the intention of the State to give that effect to signature appears from the full powers of its representatives or was expressed during the negotiations (Vienna Convention on the Law of Treaties, 1969, Article 12.1).

IMO allows a certain period to the member state for showing their acceptance to the convention by signature.

Signature subject to ratification, acceptance or approval

Most multilateral treaties contain a clause providing that a State may express its consent to be bound by the instrument by signature subject to ratification.

A State may also sign a treaty "subject to ratification, acceptance or approval".  In such a situation, signature does not signify the consent of a State to be bound by the treaty, although it does oblige the State to refrain from acts which would defeat the object and purpose of the treaty. This means that the state wants to sign the convention but it must first be accepted or approved by the parliament of their own state.

Ratification is the official way to confirm something, usually by vote. It is the formal validation of a proposed law.

The instrument of ratification is a document, which must be signed by an appropriate official of the respective national government, including the title of the person who has signed it and its date and place of issue. The instrument of ratification must be signed either by the Head of State, Head of Government, the Minister of Foreign Affairs or an official with full powers to sign the instrument. This signature validates the instrument of ratification.

This option of expressing consent to be bound by signature subject to ratification, acceptance or approval originated in an era when international communications were not instantaneous, as they are today.

It was a means of ensuring that a State representative did not exceed their powers or instructions with regard to the making of a particular treaty. The words "acceptance" and "approval" basically mean the same as ratification, but they are less formal and non-technical and might be preferred by some States which might have constitutional difficulties with the term ratification.

Many States nowadays choose this option, especially in relation to multinational treaties, as it provides them with an opportunity to ensure that any necessary legislation is enacted and other constitutional requirements fulfilled before entering into treaty commitments.

Accession
Most multinational treaties are open for signature for a specified period of time (Usually 12 Months).

Accession is the method used by a State to become a party to a treaty which it did not sign whilst the treaty was open for signature.

Technically, accession requires the State in question to deposit an instrument of accession with the depositary. It has the same legal effect as ratification. Accession usually occurs after the treaty has entered into force. The Secretary-General of the United Nations, in his function as depositary, has also accepted accessions to some conventions before their entry into force. The conditions under which accession may occur and the procedure involved depend on the provisions of the treaty.

For Example:

Article IX of the International Convention for Safety of Life at Sea, 1974, has set the conditions for Signature, ratification acceptance, approval and accession

SOLAS Article IX
SOLAS Article IX

 

Article 13 of the International Convention for the Prevention of Pollution from Ships, 1973 set the conditions for Signature, ratification acceptance, approval and accession

MARPOL Article 13
MARPOL Article 13

Entry into Force

A convention would enter into force when a minimum number of member states accepts it.  The required conditions for this adopted convention to be considered ratified are pre-agreed during the drafting process. These conditions are in one of the articles of the adopted convention.

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So after the participating state has accepted it as its national law and expressed its consent to be bound by the instrument, then that particular member state is one such country to have become the party to it in accordance with the Articles of Convention.

For Example:

Article X of the International Convention for Safety of Life at Sea, 1974, has set the conditions for Entry into Force.

MARPOL Article 13
MARPOL Article 13

SOLAS Article X
SOLAS Article X

Similar is the case with MARPOL and any other Conventions.

Amendment

With fast change in Technology and techniques in the shipping industry these days, not only are new conventions required but existing ones need to be kept up to date.

As Mentioned earlier Amending a convention is not easy and the procedure for the same is mentioned in the Articles of the respective convention.

Now let us consider SOLAS,

Articles of the International Convention for the safety of Life at Sea(SOLAS), 1974; Article VIII sets condition for Amendments

Extracts of SOLAS Article VIII Para (b)

 

Extracts of SOLAS Article VIII Para (c)

Similarly MARPOL and Other convention have the same procedure, you can refer to Articles of the respective convention to know more about the procedure for amendments.

Let us understand the above for SOLAS Convention,

As per Articles of SOLAS, 1974 the Convention can be amended in 2 Ways

  1. Amendments after consideration within the Organisation
  2. Amendment by a conference

Amendments after consideration within the Organisation

The proposal for amendments of a convention can be submitted by any contracting states. The proposal is made to the secreatary general of the IMO, who then circulates it to all members of the Organisation and all contracting governments.This is done at least 6 months before its consideration.

The above amendment is then referred to MSC (MEPC for MARPOL, like wise) for review and draft a resolution for consideration. After the Resolution is ready the Contracting Governments of states shall be entitled to participate in the proceedings of MSC (or MEPC) for consideration and adoption of amendments.

Now to adopt the Amendment

  • At least one-third of the contracting governments should be present for voting.
  • At least two-third of the contracting governments present should vote in favour of the resolution.

To explain this is simple terms, consider their are 27 contracting Governments then at least 9 (one Third) Contracting Governments should be present for voting and of these 9 contracting governments 6 (Two Third) Contracting Governments should be in favour of the resolution.

Now amendments came into force only after a two thirds, had accepted them. This normally meant that more acceptances were required to amend a convention than were originally required to bring it into force in the first place, especially where the number of States which are Parties to a convention is very large.

This percentage requirement in practice led to long delays in bringing amendments into force. To remedy the situation a new amendment procedure was devised in IMO. This procedure has been used in the case of conventions such as the Convention on the International Regulations for Preventing Collisions at Sea, 1972, the International Convention for the Prevention of Pollution from Ships, 1973 and SOLAS 1974, all of which incorporate a procedure involving the "tacit acceptance" of amendments by States.

Instead of requiring that an amendment shall enter into force after being accepted by two thirds of the Parties, the “tacit acceptance” procedure provides that an amendment shall enter into force at a particular time unless objections to the amendment are received from a specified number of Parties before a particular specified date.

In the case of the 1974 SOLAS Convention, an amendment is "deemed to have been accepted at the end of two years from the date on which it is communicated to Contracting Governments..." unless the amendment is objected:

  • by more than one third of Contracting Governments, or
  • Contracting Governments owning not less than 50 per cent of the world's gross merchant tonnage.

This period may be varied by the Maritime Safety Committee with a minimum limit of one year.

The "tacit acceptance" procedure has greatly speeded up the amendment process.  Amendments enter into force within 18 to 24 months, Compared to tacit acceptance procedure, none of the previous amendments adopted to the 1960 SOLAS Convention between 1966 and 1973 received sufficient acceptances to satisfy the requirements for entry into force.

Amendment by a conference

When one third of the contracting governments have same opinion that a convention needs to be amended, they put a request to the organisation. The organisation shall then convene a conference of contracting governments to consider the amendments to a convention.

To adopt this amendment by conference two third of the contracting states present should accept the amendment, i.e., should be in favour. Now this is a fastest way for an amendment to a convention, as one third of contracting government have recommended and hence they will be present for conference the second criteria of two third contracting governments should accept also gets automatically satisfied, major would be voting/accepting the amendment.

The procedure for amendment to have been accepted is similar to 'Amendment after consideration within organisation' above.

Protocol

Protocol are adopted when major amendment are required to be made to a convention or when the Convention in adopted and not in force and is required to be amended.

Now for a protocol:

  • issue have to be a vital importance;
  • change should be such that the existing phase of treaty/convention will be altered.

For Example

The MARPOL Convention was adopted on 2 November 1973 at IMO. As the 1973 MARPOL Convention had not yet entered into force.The first treaty that came in year 1973 prevented pollution by oil, chemicals and hazardous substances in packaged form. However, the people involved revised the treaty because of the series of tanker accidents that took place between 1976 and 1977. In response to a spate of tanker accidents the Protocol of 1978 was adopted. The 1978 MARPOL Protocol absorbed the parent Convention. The combined instrument entered into force on 2 October 1983.

Resolutions

Resolutions are adopted by the key organs and committees of the Organization.   Resolutions are issued within official IMO meeting reports and documents relating to the relevant committee or organ.

Important recommendations and ideas are drawn up as resolutions. They may serve to explain and amplify a convention. They may also be used between conferences when there is something urgent to communicate.

They are named as per follows:

  • Assembly (A)
  • Council (C)
  • Maritime Safety Committee (MSC)
  • Marine Environment Protection Committee (MEPC)
  • Facilitation Committee (FAL)
  • Technical Co-operation Committee (TC)​
  • London Convention (LDC, LC) and London Protocol (LP)
  • Legal Committee (LEG)

For Example; a Assembly Resolution shown below:

Resolution A.1050(27)

The resolution number A.1050(27), Where;

  • A is for Assembly, Resolution has been passed by Assembly
  • 1050 is the Resolution number. (Resolutions are listed by number, the most recent resolution highest number to the earliest resolution lowest number.)
  • 27 is session information i.e., this resolution was adopted in 29th session of the Assembly

Similarly for other Resolution adopted by committees of the Organization. When Maritime Safety Committee conducts a Session more topic and amendments are discussed or adopted, then a final report is made of the Complete session and adopted Resolutions are included in the final report of the Committee meeting. They may appear as an Annex to the meeting report.

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Below is resolution adopted by Maritime Safety Committee at its 98th Session and is Annex 9 of the actual report.

Resolution MSC.427(98)

Code

IMO has adopted various Code over a period of time, like LSA Code, FSS Code, FTP Code, IMDG Code, IBC Code, IGC Code and so on. Now why a code is required?

Now let us consider you work in a Shipyard and are planning to make Ship say a chemical Tanker. Then you will have to comply with SOLAS and MARPOL as the main convention. Now, while planning you will also have to check what should be the technical specifications of each equipment to be used.

But the technical details or standards are not mentioned in the SOLAS as this will increase the size of the convention and will become difficult to understand. IMO has prepared a Code for all the specific Equipment/purposes and reference given for the same in the convention. So Code is a part of the Convention.

A Code can be defined as Collection of laws or regulations pertaining to a specific activity or subject.

For example: SOLAS Chapter III States "Not less than 12 rocket parachute flare, complying with the requirements of section 3.1 of the code, shall be carried and stowed on or near the navigation bridge"

Now in the above regulation it does not mention technical specification required regarding the rocket parachute flare. This requirement is given in the Code.

Extracts of LSA Code Section 3.1 regarding Rocket Parachute Flares

Similarly while planning a chemical tanker you will also need to understand requirement with respect to tank coating, survival capability, Electrical instrumentation, Venting criteria, cargo transfer arrangements etc which is not mentioned in the SOLAS or MARPOL.

To conclude, In SOLAS various reference have been given to comply with the requirements of the International Bulk Chemical code for a chemical Tanker, and hence you will also have to refer to all technical specifications and standards set out in the IBC Code when planning your ship.

Now we have got familiar with various IMO Law terms, now let us understand these when it comes to national law (Contracting states)

How a Convention is made a National Law?

Now to make a Law a Bill is made. Ordinarily, it is in the form of a document that outlines what the proposed law is to be and what the policy behind such a law is.

A bill is essentially a proposal to make a new law.

The bill is presented to the legislature (law making body) where it will be debated on, alterations made (if necessary) and voted on. If the majority of the house of the legislature (or houses, where there is more than one house) vote in favour of such a bill to be made into law - the bill is said to have been 'passed in the house/houses'.

In India, there are two tier of legislatures -

  • the Union legislature and
  • State legislatures.

The Union legislature, known as the Parliament, is authorised to make laws for the whole of India (or a part of it), as long as the subject is within their power to make laws, which is listed in the Union List of the 7th Schedule.

The State legislatures are also empowered to make laws for the state concerned, as long as the subject is within their power to make laws, which is listed in the State List of the 7th Schedule. Both the States and the Union are empowered to make laws for subjects in the Concurrent List of the 7th Schedule.

If the Parliament passes a bill, it is sent to the President of India for his assent. If he assents to it, the bill becomes an Act. In case of the bill passed by the state legislature, it is sent to the Governor of the state concerned. If the governor assents to the bill, it becomes an Act for the state which passed it.

Sometimes, the legislature of the Union (or the State concerned) is not in session and there is a need to make a legislation (Act) to deal with some contingency which cannot wait. In such cases, the government sends a proposal to the President or Governor, and if they approve of it, it becomes an Ordinance. Legally, an ordinance is the equivalent of an Act; but is not passed by the legislature. It is a temporary law till its expiry or till it is repealed or till it is approved by the legislature (after which it becomes an Act).

So Law is anything that has the power to confer legal rights, obligations, liabilities, etc. They could be:

  • Provisions of all valid Acts, passed by the legislature
  • Acts and codes from pre-independence India and still in force
  • Ordinances passed by a Governor of a State or the President of India
  • Decisions of the High Courts within their jurisdiction
  • Decisions of Supreme Court for all of India
  • Authorised orders, notices, rules, etc made by government bodies
  • Customary codes that have the force of law and are not against public policy

Act

Act is the law that is passed by the legislature in other words legislation that has been passed by both the Houses of Parliament and has been approved by the President thus becoming a law and termed as ACT. Act is the intention of law describing the applicability, definitions governing provisions and fines, penalties and the way it is to be applied.

It is also called statute. However, most laws are not complete code in themselves, i.e. certain provisions as to their application or enforcement etc are deliberately left out by the legislature. That is where rules come into picture.

Rule

Rules help govern a law. They are secondary in nature, in the sense they don't have independent existence of their own. They are made to make the parent Act work. The rules provide for the details that have not been provided for in the Act, however Rules by no means can go beyond the power conferred by the Act, or extend the same.  In case of any contradiction in rules and act the provisions of Act prevail and apply accordingly.

For example-

The Merchant Shipping Act, 1958 is an Act. An Act to foster the development and ensure the efficient maintenance of an Indian mercantile marine in a manner best suited to serve the national interests and for that purpose to establish a National Shipping Board and a Shipping Development Fund, to provide for the registration of Indian ships and generally to amend and consolidate the law relating to merchant shipping.

The Merchant Shipping Rules, provide the details that have not been provided for in the Act. Such as Merchant Shipping (Carriage of Cargo) Rules, 1995 which is as per Section 330, 331 and 332 with Sections 457 and 458 of the Merchant Shipping Act, 1958 (44 of 1958). Same like Convention and Code we discussed earlier.

Notices

Merchant Shipping Notices of a general nature on issues related to operation. It is an advisory to large amount of people to know.

Circular

Circulars are internal memos that provide clarification on certain laws or issues. They are often issued by the Ministry, Department or the Chief Executive that is in charge and is commonly used to clarify certain aspects of a law. It can also be followed by another circular if one is not enough to clarify or in case another clarification is needed.

Finally to conclude in short, IMO conventions are set of rules which when adopted by a country’s legal system, becomes law for that country. The committees of IMO also communicates the interpretation, guidance and clarifications for the conventions by the various time to time circulars.

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