The law of the sea- The first ever created law by human under doctrine of sharing.
United Nations Convention on Law of the Sea (UNCLOS, which otherwise called Law of the Sea or LOS), administer by UnitedNation division of ocean affairs and the law of the seas is the most comprehensive law ever design by human under doctrine of togetherness .It is one of the several United Nations convention and international treaty seen as one of the most recent major development in international law governing the oceans – Prompted by the desire to settle, in a spirit of mutual understanding and co-operation, all issues relating to the law of the sea and aware of the historic significance of this Convention as an important contribution to the maintenance of peace, justice and progress for all peoples of the world.The biggest rerhoric , is that , why is is not working ?
Iteration towards fair and common interest to all concerned has led to 3 international events after its first birth under LOS – The treaty under UNCLOS provided new universal legal controls for the management of marine resources and the control of pollution. 1958 convention-fail to meet objectives due to problems of nations and independence ,1960 convention-failed because territorial sea issue did not address liability and limitation ,1982-convention – successful- seen as the most comprehensive.Basically the difference similarity between LOS and UNCLOS, is that both are aimed towards one objective to for design of ocean constitution, while, objective has not been made under LOS, iterative requirement gave birth to rename further expansion, democratization and spreading of risk and interest to cover all participants fairly and to give opportunity to other no matter where they come from to benefit from the wealth of the ocean.
The most significant issues covered were setting limits, navigation, archipelagic status and transit regimes, exclusive economic zones (EEZ), continental shelf jurisdiction, deep seabed mining, the exploitation regime, protection of the marine environment, scientific research, and settlement of disputes. The convention set the limit of various areas, measured from a carefully defined baseline , as follows:
Internal waters - This covers all water and waterways on the landward side of the baseline whereby the coastal nation is free to set laws, regulate any use, and use any resource. Foreign vessels have no right of passage within internal waters.
Territorial waters- this cover extension of internal water to out to 12 nautical miles from the baseline, the coastal state is free to set laws, regulate any use, and use any resource. Vessels were given the right of "innocent passage" through any territorial waters, with strategic straits allowing the passage of military craft as "transit passage", in that naval vessels are allowed to maintain postures that would be illegal in territorial waters.
Contiguous zone - this cover extension to 24 nautical miles from the territorial sea baselines limit, the " contiguous zone ", in which area a state could continue to enforce laws regarding activities such as smuggling or illegal immigration .
Exclusive economic zones (EEZ)–cover extension to 200 nautical miles from the baseline. Within this area, the coastal nation has sole exploitation rights over all natural resources. The EEZ were introduced to halt the increasingly heated clashes over fishing rights, although oil was also becoming important.
Archipelagic waters - In part IV, The convention define Archipelagic State which state involved can draw its territorial borders. A baseline is drawn between the outermost points of the outermost islands, subject to these points being sufficiently close to one another. All waters inside this baseline is described as Archipelagic Waters and are included as part of the state's territory and territorial waters. This baseline is also used to chart its territorial waters 12 nautical miles from the baseline and EEZ 200 nautical miles from the baseline.
Aside from its provisions defining ocean boundaries, the convention establishes general obligations for safeguarding the marine environment and protecting freedom of scientific research on the high seas, and also creates an innovative legal regime for controlling mineral resource exploitation in deep seabed areas beyond national jurisdiction, through an International Seabed Authority.
Landlocked states are given a right of access to and from the sea, without taxation of traffic through transit states.
UNCLOS issues of difference that provide no room for opposition single opposition and other advantage it offers are:
-It is is the basis of the extension of territorial sea from 3 to 12 miles - the largest increase in area of the sovereign territory.
-It increases in economic control of ocean resources under the EEZ and the extended definition of the continental shelf.
- It retains rights of navigation and over flight through the extended territorial seas of countries at critical choke points of maritime commerce and naval mobility (innocent passage).
-It gives protection to sovereign territory and areas under its economic control, protection its rights of transit by sea and air, and opportunity to protect related investment especially in the development of deep ocean minerals - a high seas freedom as proclaimed in Jamaica.
UNCLOS also known as constitution for the oceans is significant because, it actually took due diligent through 8 iterative process to accommodate interest of the everybody to have piece of cake form the wealth of the sea an this nonetheless represent the symbol of the sea as it links us all together. The United Nations Convention on the Law of the Sea received the 60 ratification signatures required and became international law. The last convention of the UNCLOS and the terms make it remain the most comprehensive maritime treaty ever written, unable to participate in the international governing councils that implement this treaty. This make over 140 nations – however some states did not sign the ratification of the Law of the Sea convention; however, signatories make it clear that they still welcome state that did sign to participate in this important convention at any time.
Reason for oppose to UNCLOS may be:
-Seabed mining - lack of understanding about the current wave of world development need, some states fear that UNCLOS would take sovereignty away from their current exploitation business especially seabed mining .
-gnorance of law makers – maritime being so wide and specialized ,required expert to explain the advantages of this law to law makers whose consent are required for the treaty
- It is a specialized area of international affairs that normally only draws the attention of legal experts and foreign policy specialists due to this states that refused to ratification the convention have been given limited attention in the major newspapers. Energized by the content and tone of the opposition statements, readers then lend their support to efforts to sway the law makers against approval of the convention. And guess ess who are those that did not or make it work as expected?
Maritime law drafting
"Law is human service of highest order. Our role as a lawyer is to make it possible for people to survive and strive in an extraordinarily complex world.” Having put his way by William H. Gate, this applies to maritime industry as well. Maritime law is very and because of the inevitable international independency, they industry has been able to coordinate and put nations together through International Maritime Organization.
Generally, defining clear and distinct policy and objectives of law is very important approach in the drafting of legislation which is formulated at national level before being passed to local level for implementation. Distinct in the sense that policy should cover the entire objective and avoid Ad hoc legislation that is prone policy covering one single object and antagonize others. Due to international implication of maritime industry, the required to be implemented are finalized by UN agencies, while the state decided on formulating local legislation towards implementation. Adoption at the international follow tacit procedure .
Purposes of maritime law
Under above described legal framework for guide to drafting legislation, in the context of maritime transportation, 3 main purposes of legislation under legal framework are:
-To provide legal framework for maritime transportation – effective legal framework is expected to cover all parties involved in maritime transportation – and related activities – interest of cargo owner to ship-owner, agents, stevedore, and freight forwarder has to be covered, ship manning , labor , working condition , navigation , rules of the road, , safety of ship , ship builder and designer – all must be covered.
-For implementation basic objectives of a states- purpose under this is aimed towards implementation to ensure that ship moving in international water safety and conditions are monitored through ports the call - to prevent coalition , accident and consequence of pollution that may arise from them- legislation involved monitoring that focus on manning , safety , prevention of collision , salvage .
-To achievement of certain economic purpose- policy objective under economics from aim to expand national fleet, boosting of employment of national on board foreign ship.
Maritime law enforcement
Port State Control (PSC)-Port States, coastal state and Flag States are the main instrument institutionalized by IMO to implement rules aim for objectives of cleaner ocean, safer ship and protection of marine environment. Thus IMO make maritime rules, but they cannot enforced such rules directly, they only effective and economic, reasonable and logical way to implement the law is through local links to the ship which led to advent of PSC- PSC is concerned with quality of ships entering ports under its jurisdiction.
Measuring of PSC -IMO has classification of ship as Black, Grey and White lists according to their arrest records, and monitoring and implementing this class is done by Port State Control (PSC) to make sure substandard ships and black listed flags are out of international water – one way of measuring performance of PSC is by number of how many substandard vessel calling a port. Other ways are assessment of implement of ISM (International safety mangement code), ISPS(International safety and port security )code ,Code ISM require owners now have to show documentary evidence that the vessel is being operated in accordance with those written procedures. And protect ships from litigation and unnecessary claim. ISPS code check on operations of ships and operation of Port facilities and the ship/port interface.
As our world is approaching globalization and things getting more internationalized , other industry can learn from achievemenet made in through agencies that has been invoved in coordinating matter of the sea..the law of the sea is very unique , is unique it is law that was ceated on fairness, and it even went to th eextent at which , even countries that are nnot bound by sea can benefit from the ocean resources- and countries that are not fully usiong the resources must allow others that needs it to use the reources, thus it is not yet been fully implimented - butIhope it wilL lead road to solve problems of today .
oladokuns@gamil.com
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