The challenge of unilateral measures vs. uniform rules

International Seminar
The Law of the Sea
The challenge of unilateral measures vs. uniform rules
hosted by Ince & Co
London, 25 April 2007
The Shipping Industry’s views
John C. Fawcett-Ellis, General Counsel, INTERTANKO
Judge Wolfrum, distinguished guests and industry colleagues.
Firstly, our thanks to Ince & Co for this initiative and for kindly
hosting this seminar and for inviting INTERTANKO to present is
views on this important subject.
We very much appreciate this invitation to present our views on
the important subject of ensuring that the shipping industry is
governed by international laws and regulations
We also welcome this opportunity to highlight concerns over
recent laws which have not followed international conventions.
We are keen to ensure that there is adequate access to judicial fora
to examine the validity of new regulations which might overlap
with international conventions.
Today’s seminar/discussion forum is therefore extremely welcome
and timely.
One of INTERTANKO’s core principles has been to seek
international and uniform laws for an industry that is truly global.
When necessary we have take action to stand up for this principle.
Most notable was INTERTANKO’s victory in the US Supreme
Court in 2000 over regulations which the State of Washington tried
to introduce, which conflicted with Federal regulations on the
safety of ships.
The Shipping industry needs regulations that are.
- International
- Uniform
- Sensible and practical in the sense of achieving their
What factors influence new regulations?
- The need to enhance safety / protect lives
- A call for more exacting standards to protect the environment
- Advances in technology
- Political demands
- Demand from the user/consumer
- Industry best practice
Good regulations should:
- Be carefully thought through and not be a political knee jerk
- Balance the views of all stakeholders
- Take into account the existing regulatory environment
So what about some recent examples of regulations of the shipping
The ISM and ISPS codes are good examples of practical
international regulations for the shipping industry.
On the other hand the EU Ship Source Pollution Directive, which
seeks to criminalise accidental pollution is a distinctly politically
motivated piece of legislation. It is well known that the pressure
for this new piece of regulation resulted from the two serious
pollution incidents involving the vessels: Erika and Prestige.
On 6 December 2002 less than three weeks after the Prestige had
sank the EU’s Transport and Telecommunications Council
“the intention of the Commission to present a proposal to ensure
that any person who has caused or contributed to a pollution
incident through grossly negligent behaviour should be subject to
appropriate sanctions.”
On the 5th of March 2003 the EU Commission published its first
draft of the proposed Directive to criminalise accidental pollution.
There had been no prior consultation with the public or interested
parties. The Prestige incident had not been properly investigated
nor had any meaningful conclusions been made. The Draft
Directive was considered by the EU Parliament and its Transport
Committee. That Committee proposed various amendments
because they had recognised that the Directive conflicted with the
international regime laid down in MARPOL. The improvements
suggested by that Committee were overturned by a subsequent
“Common Position” adopted by the Council of Ministers.
Industry including INTERTANKO were concerned about the
Directive right from the start.
We were also concerned that the Directive was at odds with the
international regime laid down in MARPOL and UNCLOS as
regards criminal liability for pollution incidents. The introduction
of criminal culpability for “serious negligence” was a particular
Naturally we were concerned at the affect the Directive would
have on the recruitment and retention of good seafarers.
Shipping is an international industry, which for reasons long
recognised by the international community is best regulated on a
global basis by uniform international laws. National or regional
measures which deviate from these laws threaten to undermine the
international system of regulation. Uniform standards and their
enforcement play a part in maintaining a level playing field of fair
competition in worldwide maritime commerce. The alternative
would be a plethora of conflicting national regulations resulting in
commercial distortion and administrative confusion which would
compromise safety and the efficiency of world trade.
For these reasons the international community has long agreed that
shipping as a global industry is best regulated by uniform
international laws. These are developed principally at the IMO.
The IMO has 166 Member States and legislation developed under
its auspices is the product of the pooled experience and expertise
from throughout the international community, including all EU
Member States. Industry associations such as INTERTANKO have
observer status at the IMO and participate actively in its
MARPOL is both an international set of regulations and also a
uniform set of rules. The shipping industry needs both these
elements for there to be global standards.
It is worthwhile to recall the Preamble to MARPOL; the
contracting parties considered that the object of the convention
“may best be achieved by establishing rules of universal purport”.
A similar view is taken in the Preamble to SOLAS which provides
that contracting states are desirous of: “establishing in a common
agreement uniform principles and rules…”
The quality of the IMO legislative process is high, given the long
experience of the Organization, the expertise and other resources at
its disposal, and the broad support normally enjoyed by regulations
made under its auspices. For example, some 135 States are parties
to MARPOL Annexes I & II. So it is truly international and the
rules that it lays down are to be applied uniformly; they are a
common standard to be followed.
One of the balances which is struck by a convention such as
MARPOL is a compromise between the interests of coastal and
flag states, Flag states and industry interests undertake higher
levels of regulation on the basis these are to be uniform rules, and
that coastal states for their part will restrain themselves from
legislating in terms at variance with these rules.
Amendment of these regulations has often become appropriate in
the light of experience and improvements in industry standards.
Like other IMO conventions MARPOL incorporate a tacit
amendment procedure which is an expeditious method of making
changes. However it is quite another matter if States by-pass this
procedure and adopt new rules of their own accord. This is to
repudiate their side of the international agreement they signed up
to and defeats the very purpose for which it was made.
The conflict between the EU Ship Source Pollution Directive and
MARPOL is not inadvertent, but results from the fact that the
Directive expressly refers to the Convention and purports to alter
or exclude the effect of certain of its rules. It therefore constitutes a
direct challenge to the supremacy of the Convention, and to the
authority of the IMO as the competent global regulatory body.
A broad coalition of the shipping industry comprising:
INTERTANKO, INTERCARGO, the Greek Shipping Cooperation
Committee, the International Salvage Union and Lloyd’s Register
have brought proceedings before the European Court in order to
test the legality of the Directive.
Whatever the outcome, these proceedings should be welcomed by
anyone committed to global regulation of shipping. They should
also encourage governments to examine more closely the existing
international regime before seeking to legislate in overlapping
The Directive is not an isolated example of governments taking
measures in the maritime sector which overtly challenge the
authority of international law, and which test the will of the
international community to enforce it. After the Prestige incident
naval vessels from Spain and Portugal forced single-hulled tankers
carrying heavy grades of oil to remain not only outside their
territorial waters but also outside their exclusive economic zones.
Those vessels were trading lawfully and their right of innocent
passage through the territorial water of the States concerned was
violated. Though the Government of Norway protested to Spain,
no response was received.
Another recent example is the making of pilotage compulsory in
the Torres Strait. The Torres Strait is recognised under UNCLOS
as an international strait where vessels have the right to transit the
strait with the coastal states only have limited rights to control that
transit. In 1991 the IMO recommended that all tankers should use
Australia pilotage services when navigating the Torres Strait.
Around 2004 Australia sought to gain approval from the IMO to
make the pilotage compulsory. MEPC in July 2005 reaffirmed its
position that the pilotage could only be recommendatory. The US
stated that there was no legal basis for the pilotage to be
mandatory. Other States supported the US position and Australia
did not object to it.
Despite that from 6 October 2006 Australia made pilotage
compulsory in the Torres Strait.
This matter has generated diplomatic exchanges and much
comment from industry and international lawyers. There are few, if
any, who view Australia’s actions to be within the bounds of
international law. So has anyone sought to bring the matter before
the courts for a declaratory judgment on the issue? No; once again
there is a reluctance to resort to such action. The Hamburg tribunal
would be a natural forum for this dispute, but as States have to
bring the action there is a clear lack of appetite for a
confrontational approach between States. So the status quo remains
and Australia have advised that the regulation stands and will be
A further example of a regulation which many distinguished
commentators and industry believed transgressed international law
is the Canadian law which was known as Bill C15 before it entered
into law. This law again seeks to criminalise accidental pollution
within Canada’s EEZ. Here the burden of proof is reversed with a
polluter guilty unless innocence can be proved. This is a clear
departure from the regimes of MARPOL and UNCLOS.
Was action taken to challenge this law? Again the answer is no. It
has entered into force without challenge.
Generally only States have the standing to take other States to
court for breach of treaty obligations, but in the maritime sector
they have seldom seen any public interest in doing so. Normally
the impact is limited to private parties who do not have access to
the competent international tribunals.
This not only means that well-founded grievances may go without
remedy; it can also lead to governments taking measures which are
guided less by international law than by the precedent of other
states acquiescing in departures from it. At its best this engenders
uncertainty as to where people stand and at its worse it undermines
respect for international legal order.
So it often falls on industry associations to act as watchdogs on
international law and to launch proceedings.
There is a need for an easier mechanism which new laws can be
tested to ensure they do not conflict with international law.
There is need for a process that is non confrontational that will
ensure a methodical review of the relevant laws and regulations.
We welcome further discussion on what solutions there might be.
Thank you for your kind attention.