TRACECA Workshop Ratification of Conventions Part 1 - Background

Transcription

1 TRACECA Maritime Safety & Security II TRACECA Workshop Ratification of Conventions Part 1 - Background Dr. Jens U. Schröder-Hinrichs

2 TRACECA Workshop - Ratification of Conventions Overview Development of international maritime conventions Transformation of conventions into national legislation Requirements of the IMO III Code Implementation of conventions International conventions and EU legislation 2

3 1 - Development of international conventions Who develops international maritime conventions and how? An overview about different maritime players United Nations IMO ILO FAO UNESCO IHO IALA HELCOM 3

4 1 - Development of international conventions United Nations United Nations Convention on the Law of the Sea (UNCLOS), rd UN conference on the law of the sea In force since 1994 Not ratified by all States (e.g. USA) 4

5 1 - Development of international conventions United Nations United Nations Convention on the Law of the Sea (UNCLOS), 1982 ratified signed, but not ratified did not sign 5 Source: Wikipedia, 2014

6 1 - Development of international conventions United Nations 6

7 1 - Development of international conventions United Nations United Nations Convention on the Law of the Sea (UNCLOS), 1982 Article 2 Legal status of the territorial sea, of the air space over the territorial sea and of its bed and subsoil The sovereignty of a coastal State extends, beyond its land territory and international waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. This sovereignty extents to the air space over the territorial sea as well as to its bed and subsoil. The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law. 7

8 1 - Development of international conventions International Maritime Organization (IMO) United Nations specialized agency since 1958 Lists currently 53 conventions and multilateral instruments Most widely known SOLAS MARPOL Load Line STCW COLREG Tonnage 8

9 1 - Development of international conventions International Maritime Organization (IMO) Assembly 9 Council Maritime Safety Committee Marine Env. Prot. Com. Legal Committee Sub-committees on Human Element, Training and Watchkeeping (HTW) Implementation of IMO Instruments (III) Navigation, Communications and Search and Rescue (NCSR) Pollution Prevention and Response (PPR) Ship Design and Construction (SDC) Ship Systems and Equipment (SSE) Carriage of Cargoes and Containers (CCC) Technical Coop. Com. Facilitation Committee

10 1 - Development of international conventions International Labour Organization (ILO) Established in 1919 United Nations specialized agency since 1946 Tripartite agreements between workers, employers and governments Regulates labour standards, such as crew accommodation Most relevant maritime instrument is the Maritime Labour Convention,

11 1 - Development of international conventions International Labour Organization (ILO) Maritime Labour Convention (MLC), 2006 Covers almost all aspects of work and life on board, including minimum age seafarers employment agreements hours of work or rest payment of wages paid annual leave repatriation at the end of contract onboard medical care the use of licensed private recruitment and placement services accommodation, food and catering health and safety protection and accident prevention and seafarers complaint handling 11

12 1 - Development of international conventions International Labour Organization (ILO) Maritime Labour Convention (MLC), 2006 Ratified by 53 member states representing 80% of the world fleet In force since 20 August 2013 There are still many member States missing 12

13 1 - Development of international conventions International Labour Organization (ILO) Maritime Labour Convention (MLC), 2006 What are the consequences when no ratifying the MLC? No more favorable treatment Ships of non-mlc states will be inspected Is an appropriate documentation on board? Will the other arrangements on board be according to the MLC requirements (employment contracts etc.)? 13

14 1 - Development of international conventions Food and Agricultural Organization of the United Nations (FAO) Maritime focus related to fisheries management No international conventions result for these activities Safety of fishing boats and standards of training for employees in the fishing industry is a concern Standards for boats and training fall in the IMO mandate Cooperation between IMO and FAO 14

15 1 - Development of international conventions United Nations Educational, Scientific and Cultural Organization (UNESCO) International Oeanographic Commission since 1960 No specific conventions developed by the IOC Oceans observatory Tsunami Early Warning Systems are established within the framework of the IOC 15

16 1 - Development of international conventions International Hydrographic Organization (IHO) Established in 1920 International Organization since 1970 develops hydrographic and nautical charting standards adopted and used by its member countries in their surveys, nautical charts, and publications S-57 and S-100 IHO Transfer Standard for Digital Hydrographic Data Link to SOLAS Chapter V Costal State Obligations 16

17 1 - Development of international conventions InteInternational Association of Marine Aids to Navigation and Lighthouse Authorities (IALA) International Organization since Committees e-nav Electronic Navigation; ANM Aids to Navigation Management concentrating on management issues experienced by members; EEP Engineering, Environmental and Preservation concentrating on the preservation of traditional aids to navigation as well as the engineering aspects of all aids to navigation; VTS Vessel Traffic Services concentrating on all issues surrounding VTS PAF Pilotage Authority Forum LAP Legal Advisory Panel 17

18 1 - Development of international conventions InteInternational Association of Marine Aids to Navigation and Lighthouse Authorities (IALA) References in IMO to IALA standards Aids to Navigation VTS training 18

19 1 - Development of international conventions Baltic Marine Environment Protection Commission - Helsinki Commission (HELCOM) Regional agreement - Convention on the Protection of the Marine Environment of the Baltic Sea Area, known as the Helsinki Convention First version in 1974, replaced in 1992 Six working groups Group for Implementation of the Ecosystem Approach (GEAR) The Nature Protection and Biodiversity Group (HABITAT) The Land-based Pollution Group (LAND) The Maritime Group (MARITIME) The Monitoring and Assessment Group (MONAS) The Response Group (RESPONSE) 19

20 1 - Development of international conventions Baltic Marine Environment Protection Commission - Helsinki Commission (HELCOM) Regional standards and agreements SAR Oil pollution response 20

21 TRACECA Workshop - Ratification of Conventions Overview Development of international maritime conventions Transformation of conventions into national legislation Requirements of the IMO III Code Implementation of conventions International conventions and EU legislation 21

22 2 Transformation of conventions into national law Key terms Adoption Ratification Accession Entry into force Implementation Amendment Enforcement 22

23 2 Transformation of conventions into national law How is an international convention adopted? Diplomatic Conference to draft the convention Technical content Agreement on the Organization to carry out depositary and other functions Entry into force criteria How many ratifications Other criteria (percentage of the world fleet) Period of time between the final ratification and the entry into force date Final act of the conference Adopted by the participants 23

24 2 Transformation of conventions into national law How to ratify a convention? Vienna Convention on the Law of Treaties, 1969 Signature subject to ratification Limited power of the representative of a state in a diplomatic conference to bind the state on a treaty Ratification is a formal procedure to express consent by a state to be bound by a treaty Opportunity to ensure that any necessary legislation is enacted and other constitutional requirements fulfilled before entering into treaty commitments Deposit of an instrument of ratification with the depositary of the treaty required 24

25 2 Transformation of conventions into national law What is accession to a treaty? International treaties are open for signature for a certain period of time Expression of a state to be bound by a treaty after that period of time for signature is called accession 25

26 2 Transformation of conventions into national law When does a treaty enter into force? Criteria for entering into force are defined in the treaty Time period after a certain minimum number (e.g. countries representing a certain percentage of the world fleet) has ratified Examples UN Convention on the Law of the Seas Adopted 1982 at a diplomatic conference in Montego Bay (Jamaica) Entered into force in 1994 one year after the 60 th ratification was deposited Maritime Labour Convention Adopted 2006 at a diplomatic conference in Geneva Entered into force in 2013 one year after the 30 th ratification of states representing at least 30% of the world fleet s tonnage 26

27 2 Transformation of conventions into national law Why needs a treaty to be implemented into national law? To make a treaty binding in a country requires appropriate national legislation Example Merchant Shipping Act 27

28 2 Transformation of conventions into national law How is a treaty amended? Different procedures Diplomatic conference with a formal protocol to be ratified by a minimum number of countries etc. Amendments under tacit acceptance procedure 28

29 2 Transformation of conventions into national law How is a treaty amended? Tacit acceptance Earlier IMO Conventions required a long time for amendments to enter into force Tacit acceptance is a short cut No need for a diplomatic conference an IMO Committee can make suggestions and adopt amendments A period of time is specified where at least 1/3 of all member States have to object in order to stop an amendment entering into force 29

30 2 Transformation of conventions into national law How is a treaty enforced? Provisions in national law on own ships Provisions in international standards against foreign ships and administrations, such as Port State Control Intervention Convention STCW assessments abroad 30

31 TRACECA Workshop - Ratification of Conventions Overview Development of international maritime conventions Transformation of conventions into national legislation Requirements of the IMO III Code Implementation of conventions International conventions and EU legislation 31

32 3 Requirements of the III Code IMO Member State self-assessment 1993 A.739(18) Guidelines for the authorization of organizations acting on behalf of the Administration 1995 A.789(19) Specifications on the survey and certification functions of recognized organizations acting on behalf of the Administration 1997 Res. A 847(20) Guidelines to assist flag States in the implementation of IMO instruments 1999 Res. A 881(21) Self assessment of flag State performance 32 MSEA Principles of Maritime Administration - III Code - Introduction

33 3 Requirements of the III Code Voluntary Audit Scheme Framework (until 2016) Res. A 973(24), 996(25), 1019(26), 1054(27) Code for the implementation of mandatory IMO instruments Res. A 974(24) Framework and Procedures for the Voluntary IMO Member State Audit Scheme Res. A 975(24) Future Development of the Voluntary IMO Member State Audit Scheme 33 MSEA Principles of Maritime Administration - III Code - Introduction

34 3 Requirements of the III Code Mandatory instruments under the Code SOLAS 74 (1978 and 1988 Protocols) MARPOL 73 (1978 and 1997 Protocols) STCW 78 Load Lines 66 (1988 Protocol) Tonnage Convention 69 COLREG MSEA Principles of Maritime Administration - III Code - Introduction

35 3 Requirements of the III Code Mandatory instruments under IMO Conventions: SOLAS Codes FSS, FTP, LSA, CSS (sub-chapter 1.9), Grain, IMDG, IBC, IGC, INF, ISM, HSC (1994, 2000) Resolutions A.739(18), A.744(18) as amended, A.789(19), Res. 4 of the 1997 SOLAS Conf., MSC.133(76) 35 MSEA Principles of Maritime Administration - III Code - Introduction

36 3 Requirements of the III Code An IMO member State can have different obligations this is the most extensive part related to the maintenance of a fleet in compliance with the main IMO instruments e.g. SOLAS Chapter V SAR services, weather forecast services etc. in addition there are common areas, e.g. procedures to implement international instruments into domestic legislation e.g. MARPOL reception facilities 36 MSEA Principles of Maritime Administration - III Code - Introduction

37 3 Requirements of the III Code Overview Part 1 Common Areas Part 2 Flag States Part 3 Coastal States Part 4 Port States Annexes Annex 1 Obligations of Contracting Governments/Parties Annex 2 Specific Flag State Obligations Annex 3 Specific Coastal State Obligations Annex 4 Specific Port State Obligations Annex 5 Instruments made mandatory under IMO Conventions Annex 6 Summary of amendments to mandatory instruments reflected in the Code 37 MSEA Principles of Maritime Administration - III Code - Introduction

38 3 Requirements of the III Code Part 1 Common areas Objective Strategy General Scope Initial actions Communication of information Records Improvement 38

39 3 Requirements of the III Code Strategy of the member State (Code, Part 1, Para. 3 and 9) In order for a State to meet the objective of this Code, a strategy should be developed, covering the following issues: implementation and enforcement of relevant international mandatory instruments; adherence to international recommendations, as appropriate; continuous review and verification of the effectiveness of the State in respect of meeting its international obligations; and the achievement, maintenance and improvement of overall organizational performance and capability. This strategy need to be communicated (Para. 9) 39

40 3 Requirements of the III Code What is a strategy and why is it important? Sun Tzu (500 BC) The art of war One of the first books about strategy People should not be unfamiliar with strategy, those who understand it will survive, those who do not understand it will perish All men can see these tactics whereby I conquer, but what none can see is the strategy out of which victory is evolved. 40 The word strategy has ancient greek roots stratós (armed forces) and ágein (to lead). Stratēgós is an old greek title for military and later civilian leaders

41 3 Requirements of the III Code Why is a strategy needed for an IMO member State? The IMO Code draws together a number of existing resolutions, but does it go any further? Res A.847(20) Guidelines to assist Flag States Administrations have evolved over times and are different in different countries They were not set up as a corporate entity Concept of continual review of performance is not universally accepted for administrations 41

42 3 Requirements of the III Code Why is a strategy needed for an IMO member State? Analyze the differences between expectations and results to determine their cause Measure against expected results Define objectives and processes to deliver results Implement the processes Principle of continual review of performance 42

43 3 Requirements of the III Code Typical indicators for the absense of a strategy Concept of a corporate entity as Maritime Administration not apparent Treaty obligations spread over several entities - Ministries, Agencies, etc. Turf war is evident Concept of audit and review not fully accepted Lack of experience of this concept or culture 43

44 3 Requirements of the III Code Example of participating entities in a maritime administration Search and Rescue Hydrography Pollution Prevention and Control Laws and Enforcement Maritime Administration Transport policy IMO 44

45 3 Requirements of the III Code Basic objectives for a member State strategy Strategic mechanisms should include: Methods for establishing competence and areas of responsibility for entities involved in the State s maritime activities; Clear lines of authority of each entity leading to an overall co-ordinating body, with a mandate, for all maritime activities, which would then constitute the maritime administration; Process and procedures for determining each entity s performance against its areas of responsibility and the overall organizational performance of those entities forming the maritime administration; and A derived system there from to monitor, evaluate and improve the performance of the maritime administration. 45

46 3 Requirements of the III Code Basic ingredients Consider policies and related implementing vehicles: Action plans and road maps Management systems and quality systems 46

47 3 Requirements of the III Code General considerations when building up a strategy It is not possible to re-engineer Administrations De facto acceptance of status quo A strategy must be developed within the existing framework How are corporate functions of the maritime administration undertaken? How would planning for a new convention or amendment to existing be done? How do various State entities communicate? Where there are joint responsibilities how are these allocated e.g. MARPOL VI? How is performance assessed against convention obligations, future performance indicators? Important: Look at the total picture consider an overall assessment 47

48 3 Requirements of the III Code Evidence for the existence of a strategy A high-level document decree or official government paper setting out national strategy, including the appointment of a coordinating body or council and its powers; Setting of quality targets and key policy objectives; Records of continuous review and verification of the State s effectiveness in respect of its international obligations; Assessment or performance evaluation of overall organizational effectiveness and capability, including administrative capacity to implement the instruments, e.g. Qualified mariners, ship detentions, etc. 48

49 3 Requirements of the III Code New form for participating entities in a maritime administration Transport policy IMO Interaction and cooperation between the various entities should be on the basis of a comprehensive strategy of the member State Pollution Prevention and Control Laws and Enforcement Maritime Administration Search and Rescue Hydrography 49

50 3 Requirements of the III Code Strategic planning The vision/mission influences how the other components are treated 50

51 3 Requirements of the III Code Defining objectives the SMART principle Specific 51 Measurable Achievable Realistic Time-restrained

52 3 Requirements of the III Code Review your objectives and meansure your compliance Principle of continual review of performance 52

53 3 Requirements of the III Code What are the arrangements in your home country? Do you have a strategy or how should a strategy look like in your home country? 53

54 3 Requirements of the III Code Source: FSI 18/INF. 7 Experience so far with the old VIMSAS 54

55 Any questions? Q & A Questions & Answers 55