The international law of the sea

High seas are the waters outside national jurisdiction, like oceans and other waters including some estuaries and rivers and even lakes.

Ships sailing the high seas are generally under the jurisdiction of the flag state; however, when a ship is involved in certain criminal acts, such as piracy, any nation can exercise jurisdiction under the doctrine of hostis humani generis (legal term of act).

Freedom of navigation is established through different international conventions, like the Copenhagen Convention of 1857 that opened access to the Baltic by abolishing the Sound Dues and making the Danish Straits an international waterway free to all military and commercial shipping. Several conventions have opened the Bosporus and Dardanelles to shipping. The latest, the Montreux Convention Regarding the Regime of the Turkish Straits maintains the straits' status as an international waterway.

Even rivers have been opened and given the status of international waters, like the Danube River, which was internationalized so that landlocked Austria, Hungary and former Czechoslovakia (now only Slovakia) has access to the Danube, and southern Germany (Germany itself is not landlocked, having access to both the North Sea and Baltic Sea) could have secure access to the Black Sea.

The establishment of some sort of jurisdiction in international waters has been a slow process, from the earliest “freedom of the seas concept” in the 17th century. In 1930 the League of Nations tried to establish an international treaty for the regulation of transboundary and international matters at sea, without success.

image002

 It was not until the UN Conferences on the Law of the Sea, a series of conferences held in 1956 (UNCLOS I – Geneva), 1960 (UNCLOS II - Geneva) and 1973 (UNCLOS III – New York), which resulted in a series of conventions, that the world eventually took a considerable step forward in establishing jurisdiction of international waters, through the United Nations Convention on the Law of the Sea (UNCLOS). This convention defines the rights and responsibilities of nations in their use of the world’s oceans. The convention came into force 16th of November 1994, one year after Guyana became the 60th state to sign the treaty. It is now regarded as a codification of customary international law on the issue.

image003

 Two international institutions were created by this treaty. The International Seabed Authority (ISA)[1] (Headquarters: Kingston, Jamaica) is the organization through which States Parties to the Convention organize and control activities in the Area, particularly with view to administering the resources of the Area.

Chapter_5_-_Illustration_3_-_International_Tribunal_for_the_Law_of_the_Sea

 The second institution is the International Tribunal for the Law of the Sea[2] (Headquarters: Hamburg, Germany). This is one of the four different ways of dealing with disputes between nations (Part XV of the Convention), the other three being the International Court of Justice, an arbitral tribunal constituted in accordance with Annex VII to the Convention, and a special arbitral tribunal constituted in accordance with Annex VIII to the Convention.

UNCLOS is the super-eminent convention at sea. All other conventions comply with these regulations.

 conventions_of_importance3

 Maritime medicine or maritime health topics are not directly mentioned in the convention, but derive partly from Article 98 in the Convention, “Duty to render Assistance”.

 The second paragraph in this Article is of special importance (for the context, see the illustration):

 “Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose”[3].

 Although a total of 162 nations have ratified the UNCLOS by 15th May 2011, several nations have not ratified, even if they have signed it. Some others have not signed at all, the most important of them being the United States of America, which for several reasons has chosen not to sign the UNCLOS. In 2008 the US gave indications that they wanted to start negotiations which could end up in ratification. The process is continuing under the Obama administration (2012), hopefully leading to ratification soon.


 

 International maritime treaties in general

The international nature of the shipping industry and the shipping trade makes supranational regulation a necessity.

The goal of reaching international consensus and establish international treaties is incorporated in the policy of many of the stake-holders of maritime safety and the health and welfare of seafarers.

conventions_of_importance4

The most important bodies for the development and maintenance of international conventions, standards, guidance and directives that addresses topics relevant for the maritime physician are the International Maritime Organization (IMO) and the International Labour Organization (ILO). On a supranational level, although not with the same impact, is the European Maritime Safety Agency.

Strictly national regulations will not be dealt with in this chapter.

The process of adoption, ratification and entry into force of multilateral treaties like international conventions, is often a slow one, as illustrated by a list of IMO conventions in Table 5.1.[i] A minimum number of member states, representing a minimum amount of the world’s total gross tonnage are usually necessary for a convention entering into force. The number of ratifying states and the amount of tonnage required for a convention to enter into force vary from convention to convention[4].

The amendment procedures contained in the first Conventions to be developed under the auspices of IMO were so slow that some amendments adopted have never entered into force. This changed with the introduction of the "tacit acceptance" procedure.

Tacit acceptance is now incorporated into most of IMO's technical Conventions. It facilitates the quick and simple modification of Conventions to keep pace with the rapidly-evolving technology in the shipping world. Without tacit acceptance, it would have proved impossible to keep Conventions up to date and IMO's role as the international forum for technical issues involving shipping would have been placed in jeopardy[5].

“The four pillars” and conventions relating to maritime health

The four international maritime conventions that are usually regarded as the most important from an overall maritime perspective include three IMO conventions and one ILO convention:

  • SOLAS 1974 - International Convention on the Safety of Life at Sea (IMO)
  • STCW 1978 – International Convention on Standards of Training, Certification and Watchkeeping (IMO)
  • MARPOL 1973 - International Convention for the Prevention of Pollution from Ships (IMO) [This convention was never ratified, but the Protocol to the convention of 1978 absorbed the whole convention, and this protocol and its annexes have been ratified]
  • MLC 2006 – Maritime Labour Convention 2006 (ILO)

There is no international convention on maritime medicine, but we find aspects of maritime medicine and maritime occupational health topics in many different conventions, such as the IMO conventions listed below

  • SOLAS 1974 deals with life saving appliances on board ship, and under this (also linked to MARPOL) we have got the IMDG Code (International Maritime Dangerous Goods Code)
  • STCW 1978 deals with health, training (including medical care at sea) and competence requirements for seafarers, and as recently amended includes specific criteria for medical fitness certification
  • INMARSAT 1976 deals with the emergency communication system, of great importance to the Telemedical Maritime Assistance Services,
  • SAR 1979 convention deals with maritime search and rescue,
  • CSC 1972 deals with safety for human life in the transport and handling of containers
  • SFV 1977 deals with life saving appliances, emergency procedures and radio communication on fishing vessels.

Aspects of maritime medicine are indirectly included in other conventions as well. Such aspects are relevant to for example:

  • safe navigation (fatigue, night vision, colour vision, contrast vision) watch schemes, (SOLAS, STCW)
  • minimum manning (STCW and SOLAS), hours of work and manning (ILO C 57, C 76, C93, C 109, C 180, all of the now revised by the MLC 2006),
  • minimum age for workers at sea can be found in ILO C 7, C 58, which are revised by the MLC 2006, and C 112 (fisheries) and C 138 which still are in force.
  • Food and catering and certification of ships cooks (ILO C 38 and 39)
  • construction of ships (hospital construction, man-machine interface), (ILO C 164 and MLC 2006)
  • environmental factors (that could cause illness or impair working ability) (MARPOL)

A list of conventions which are relevant to some aspect of maritime medicine would probably include most maritime conventions.

Many other examples could be mentioned. Health professionals know that most activities of mankind can have medical implications. Hence it should be no surprise that there are medical aspects of most conventions. It reaches, however, beyond the scope of this text to go give a detailed description of the medical impact the different requirements in the different conventions may have.


[3] UN Law of the Sea, Article 98

[4] “Status of Multilateral Conventions and Instruments in Respect of which the International Maritime Organization or its Secretary-General performs Depositary or other Functions as at 31 August 2012”