TRACECA Workshop Ratification of Conventions Part 1 ...TRACECA Workshop –Ratification of Conventions Part 1 - Background Dr. Jens U. Schröder-Hinrichs ... Requirements of the IMO

TRACECA Workshop – Ratification of ConventionsPart 1 - Background

Dr. Jens U. Schröder-Hinrichs

TRACECA Maritime Safety & Security II

This project is financed by the European Union

TRACECA Workshop - Ratification of Conventions

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

Overview

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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

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United Nations

United Nations Convention on the Law of the Sea (UNCLOS), 1982

– 3rd UN conference on the law of the sea 1970 – 1982

– In force since 1994

– Not ratified by all States (e.g. USA)

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United Nations


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ratified signed, but not ratified did not sign

Source: Wikipedia, 2014This project is financed by the European Union


United Nations

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United Nations


– 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.

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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

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International Maritime Organization (IMO)

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Assembly

Council

Maritime Safety Committee Marine Env. Prot. Com. Legal Committee

Technical Coop. Com.

Facilitation CommitteeHuman Element, Training and Watchkeeping (HTW)

Implementation of IMO Instruments (III)

Navigation, Communications and Search and Rescue (NCSR)

Carriage of Cargoes and Containers (CCC)

Pollution Prevention and Response (PPR)

Ship Design and Construction (SDC)

Ship Systems and Equipment (SSE)

Sub-committees on


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, 2006

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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

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– Ratified by 53 member states representing 80% of the world fleet

– In force since 20 August 2013

– There are still many member States missing

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– 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.)?

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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

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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

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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

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InteInternational Association of Marine Aids to Navigation and Lighthouse Authorities (IALA)

International Organization since 1957

6 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

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InteInternational Association of Marine Aids to Navigation and Lighthouse Authorities (IALA)

References in IMO to IALA standards

– Aids to Navigation

– VTS training

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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)

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Baltic Marine Environment Protection Commission - Helsinki Commission (HELCOM)

Regional standards and agreements

– SAR

– Oil pollution response

– …

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Overview

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2 – Transformation of conventions into national law

Key terms

– Adoption

– Ratification

– Accession

– Entry into force

– Implementation

– Amendment

– Enforcement

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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

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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

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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

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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 60th ratification was deposited

Maritime Labour Convention

– Adopted 2006 at a diplomatic conference in Geneva

– Entered into force in 2013 – one year after the 30th ratification of states representing at least 30% of the world fleet’s tonnage

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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

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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

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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

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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

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Overview

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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

MSEA 251 - Principles of Maritime Administration - III Code - Introduction

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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


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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 72


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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)


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An IMO member State can have different obligations

e.g. SOLAS Chapter V –SAR services, weather forecast services etc.

this is the most extensive part related to the maintenance of a fleet in compliance with the main IMO instruments

e.g. MARPOL – reception facilities

MSEA 251 - Principles of Maritime Administration - III Code - Introduction36

in addition there are common areas, e.g. procedures to implement international instruments into domestic legislation



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


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Part 1 – Common areas

Objective

Strategy

General

Scope

Initial actions

Communication of information

Records

Improvement

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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)

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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.”

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



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

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Why is a strategy needed for an IMO member State?

Measure against expected results

Principle of continual review of performance

Analyze the differences between expectations and results to determine their cause

Define objectives and processes to deliver

results

Implement the processes

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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

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Example of participating entities in a maritime administration

Search and RescueHydrography

Laws andEnforcement

Transport policyIMO

Pollution Prevention and Control

Maritime Administration

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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.

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Basic ingredients

Consider policies and related implementing vehicles:

– Action plans and road maps

– Management systems and quality systems

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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

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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.

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New form for participating entities in a maritime administration

Transport policyIMO

Laws and Enforcement

Search and RescueHydrography

Pollution Prevention and Control

Maritime Administration

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Interaction and cooperation between the various entities should be on the basis of a comprehensive strategy of the member State



Strategic planning

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The vision/mission influences how the othercomponents are treated


Specific

Measurable

Achievable

Realistic

Time-restrained


Defining objectives – the SMART principle

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Review your objectives and meansure your compliance

Principle of continual review of performance

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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



Experience so far with the old VIMSAS

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Source: FSI 18/INF. 7


Q & AAny questions?

Questions & Answers

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Documents

TRACECA Workshop Ratification of Conventions Part 1 ...TRACECA Workshop –Ratification of Conventions Part 1 - Background Dr. Jens U. Schröder-Hinrichs ... Requirements of the IMO