Maritime Policy: Marine Environmental Law

Discuss about the Maritime Policy for Marine Environmental Law.

The Principle of the Freedom:

The International Maritime Law is divided into four strong pillars namely, Law of Freedom, law of sovereignty and law of common heritage of mankind (HE & GONG 2015). Additionally, law of freedom of contract and legal personality of the ship is also regarded as pillars of international maritime law. Each country is free within the political boundary and the law that applies to them. According to the general rule of maritime law, each of these pillars is dependent on the other for smooth functioning of the maritime law in existence (Stafford 2015). The law of freedom allowed man to throw human waste into the seas both from habitations that survive near the coast and ships (Böhm 2013). However, to save ecology and environment, the freedom of high seas has to be restricted. The International Community has found ways to curtail this freedom, especially the United States, France and the European Commission. The freedom of commerce and trade is conducted under the law of the freedom of contract (Jankovsky 2013).

The principle of the freedom, from the perspective of maritime law has been interpreted as the right of human being to throw waste into water. People in the water have thrown waste since centuries, not forgetting oil, sewerage, garbage and tank (Bansal 2016). For example, from the years 1948 to 1998, the shipping all over the world increased from 94 million tons to 600 million tons approximately (Glahn & Taulbee 2015). This is coupled with the increase of population near the coastal regions and pollutants being thrown at a very high rate. This affects the local ecology and environment and causes harm to the local fisheries. Hence, restrictions should be laid on the principle of freedom in the field of maritime law (Storr 2016).

According to Article 92 of the “United Nations Convention on the Law of the Sea” (UNCLOS), all ships that operate from the high seas are subject to exclusive jurisdiction of the flag state (Buergenthal & Murphy 2013). The UNCLOS is the predominant public policy that favors the principle of the freedom. Flag states, especially flags of convenience, do not have the will control their vessels from polluting seawater. Therefore, regulations that are stated on the MARPOL and Ballast Water control continue to be disregarded by their ships (Cameron 2013). Therefore, to make the ships directly responsible Intercargo, International Chamber of shipping and Intertanko and Oil Companies, have issued a basic guidance in the year 2006 stating the importance of following and adhering to the International Maritime Organization (IMO) requisites (De Santo 2015). The IMO has stated the zero tolerance policy for non-compliance of the MARPOL and the IMO. The guidelines have stated that no person should engage in any illegal act that has the likelihood of benefiting the employer. Employers who fail to comply with the provisions of the Conventions shall face severe legal consequences (Yee 2014). Ship operators have the obligation to establish compliance on their parts. Though the principle of the freedom allows the seafarers to utilize the seawater in the way they want to, however, they should not fail to comply with the rules laid in the international convention with respect to maritime law. Failure to comply with the MARPOL, IMO and UNCLOS can lead to criminal prosecution and imprisonment (Ringbom 2016).

For example, President Kennedy blocked the approach of Russian ships to Cuba as it was affecting the freedom of the seas to Russian ships. However, neither Russian nor Cuba afford to fight with the Americans and the world remained silent on this and Kennedy got away with this. This is a true example of Might is Right in the context of exercising freedom in the maritime law (Attard et al. 2016).

The Principle of Sovereignty:

The principle of sovereignty is the cardinal principle of international maritime law. The principle of sovereignty is hardly violated unless one country vanquishes another country. For example, domination of Great Britain on a country on which sun never sets is an example of subjugation. Hilter’s invasion to Europe and invasion of Iraq by the USA are examples of subjugation (Kraska & Pedrozo 2013). Article 2 and 3 of the UNCLOS has stated the jurisdictional limit of the sea areas up to 12 nautical miles from the coastal base line. This is regarded as the territorial jurisdiction of water. Seawater that lies beyond the territorial water shall also be regarded as international waters (Attard et al. 2016).

Article 17,18 and 19 of the UNCLOS is the predominant public policy that operates in favor of the principle of the sovereignty. The Articles have laid limitations on the territorial water of the coastal state by providing foreign flag vessels that shall enjoy the right of innocent passage through the coastal water ships. It is also held that when ships are a part of the territorial water of another country they shall still be subject to the law of the coastal state (Glahn & Taulbee 2015). However, it is optional for the coastal states to lay criminal jurisdiction within the waters that depends on the crime that they have committed disturbing peace and security of another nation. For example, Japan has amended their criminal penal code in the light of the Tajima incident that took place beyond its criminal jurisdiction, however, the victims were Japanese (Buergenthal & Murphy 2013).

The principle of sovereignty can be demonstrated with the help of the following case:

Many seafarers, in their spare time, especially since it causes no harm, threw a fishing line over side that is anchored and waiting to enter the harbors of the United States. However, to fish in the US waters the seafarers require US license. US Guard Man immediately arrested the seaman as he was shipping in the jurisdiction of the United States, and has contravened the provisions of United States Maritime law (HE & GONG  2015).

The Principle of Common Heritage of Mankind:

The principle of common heritage of humankind is an evolution of international law that states that the essentials of the cosmos and the earth are ordinary to humankind. “Common heritage” of humankind is inclusive of seabed, ocean floor, subsoil and outer space. According to this theory, the areas of Antarctica, seabed and ocean floor should not belong to any one particular states for their benefit alone, instead they should be left for the utilization of the entire mankind so that they may obtain benefit from this (Buergenthal & Murphy 2013).

• There are five core components that are associated with the common heritage of mankind:
• No person or state shall use the common heritage spaces for their personal benefit
• Representatives of the states who make use of the available resources should utilize them in such a way so that it is available for the others as well.
• The nations should cooperate and share the benefits of the common heritage
• No military or weaponry installations shall take place in the area of common humankind heritage (Kraska & Pedrozo 2013).

The predominant public policy that exists in favor of this principle is UNCLOS. The developing nations perceive this principle in favor of them, as it prohibits the nation and the states to exploit the available natural resources. In the case of, Ass’n for Molecular Patholigy v. United States, the Court held that if any state discovers any new useful natural resource, the state cannot claim ownership of the land rather it should be used for the utilization for all the human beings. According to Article 137 (1) of the UNCLOS, no state can assert or apply sovereignty or sovereignty authority over any part of the area that has resources available in abundance. Ideally, a state may be acquired in any of the five recognized ways. The states can acquire the territory by applying the principle of “res nullius, prescription, conquest, accretion and cession (Stafford 2015).” The principle of “prescription”, “conquest” and seabed are not appropriate, as they require an initial sovereignty over seabed. The principle of accretion is also not applicable in deep seabed, as it does not experience any physical process for becoming a part of the territorial region. Hence, the only legal opinion that is applicable for acquiring the deep seabed is res nullius. The customary way of claiming sovereignty was not applicable to seabed. Hence, the restriction to the use of deep seabed as a matter of a right is a reflection of the principle of common heritage of mankind (Bansal 2016). Article 141 of the UNCLOS allows the utilization of deep seabed for “peaceful purposes.” The word “peaceful purposes” means an area or a region that shall be open for the use of all without discrimination of prejudice. The Antarctic Treaty and The Moon Treaty also contain a clause of “peaceful purposes.”  As per the The Antarctic Treaty and the Moon Treaty, the word peaceful treaty is associated with military and army fortifications ( Glahn & Taulbee 2015).

Thus, there are many treaties and conventions that exist in favor of the principle of common heritage to mankind. The principle of “common heritage to mankind” is based on the theory of equitable sharing of benefits. The original provisions relating to the equitable distribution of benefits were contained in Article 160 (2) (f) (i) of the UNCLOS. Similar provisions are contained in section 7 of the 1994 annex. The limitations of the equitable distribution of benefits shall become clear depending on the facts of the case and the way the matter has been decided by the Court. The criterion that is applicable for the impartial allocation of benefits will depend in the extent to which distribution of benefits is to aid the developing states. It may either be limited or it could extend to programs that may fill the economic gap of the nation (Cameron 2013).

Reference List: 

Attard, D., Fitzmaurice, M., Martinez, N. & Hamza, R. eds., 2016. The IMLI Manual on International Maritime Law: Volume III: Marine Environmental Law and International Maritime Security Law. Oxford University Press.

Bansal, A.K., 2016. 12_The Four Pillars of International Maritime Law and Bills of Lading.

Böhm, M., 2013. The Mediterranean Sea in the martime Policy of the Byzantine emperors in the VI Century. International Letters of Social and Humanistic Sciences, 6, pp.75-85.

Buergenthal, T. & Murphy, S., 2013. Buergenthal and Murphy's Public International Law in a Nutshell, 5th. West Academic.

Cameron, L., 2013. The Maritime Labour Convention 2006: A Frozen Revolution in the Realisation of Social Justice for Seafarers.

De Santo, E., 2015. The Marine Strategy Framework Directive as a catalyst for maritime spatial planning: internal dimensions and institutional tensions.Governing Europe’s marine environment. Europeanization of regional seas or regionalization of EU policies.

HE, J. & GONG, G.J., 2015. On the Safeguarding of Martime Power and Rights under the Strategy of “The Maritime Silk Road”. Journal of Xiangtan University (Philosophy and Social Sciences), 4, p.024.

Jankovsky, B., 2013. Lead Authors: Kaija Hurlburt, Oceans Beyond Piracy D. Conor Seyle, PhD., One Earth Future Foundation Contributing Authors: Cyrus Mody, International Martime Bureau Roy Paul, Maritime Piracy Humanitarian Response Programme Jon Bellish, Oceans Beyond Piracy.

Kraska, J. & Pedrozo, R., 2013. International maritime security law. Martinus Nijhoff Publishers.

Ringbom, H., 2016. The European Union and International Maritime Law-Lessons for the Asia-Pacific Region?. Australian and New Zealand Maritime Law Journal, 30(1), pp.67-77.

Stafford, J., 2015. A martime modernity? (Doctoral dissertation, Kingston University).

Storr, C., 2016. Islands and the South: Framing the Relationship between International Law and Environmental Crisis. European Journal of International Law, 27(2), pp.519-540.

Von Glahn, G. & Taulbee, J.L., 2015. Law among nations: an introduction to public international law. Routledge.

Yee, S., 2014. 11. Sustainable Development, International Law and China.