Session:05

Sources of Law of the Sea and Maritime Law

Learning Objectives

• Discuss the Sources of the Law of the Sea and Maritime Law
Law of the Sea and Maritime Law
• The term law of the sea appears similar to the term maritime law, but it has a
significantly different meaning.
• Maritime law deals with jurisprudence that governs ships and shipping, and is
concerned with contracts, torts, and other issues involving private shipping, whereas
the law of the sea refers to matters of public international law.
• Many topics are contained within the law-of-the-sea concept. These include the
definition of a state's territorial waters, the right of states to fish the oceans and to
mine underneath the oceans, and the rights of states to control navigation.
• The area outside a state's territorial waters, commonly known as the high seas, was
traditionally governed by the principle of freedom of the seas.
• On the one hand, this meant freedom for fishing, commercial navigation, travel, and
migration by both ships and aircraft; freedom for improvement in communication
and supply by the laying of submarine cables and pipelines; and freedom for
oceanographic research.
• On the other hand, it meant freedom for naval and aerial warfare, including
interference with neutral commerce; freedom for military installations; and freedom
to use the oceans as a place to dump wastes
Definition of International Law
• Traditional Definition - States alone are the subjects of I.L. For example
Oppenheim: International Law is ―the name for the body of customary and
treaty rules which are considered legally binding by civilized states in their inter
course with each other.
• J.L. Brierly: International Law may be defined as ―the body of rules and the
principles of actions, which are binding upon civilized states in their relation
with the one another.
• Hackworth: ―International Law consists body of rules governing the relation
between states. Criticism of Oppenheim‘s definition: Not only states but also
international organization, Civilized states, Individuals and other private
persons, General Principles of Law ignored, IL is Living Law etc.,
Modern Definition of International Law
• Modern definitions – International Law not only regulates the relations
between states but also International organizations, individuals non – non-
state entities, etc. For example: Charles G. Fenwick: ―the body of general
principles and scientific rules which are binding upon members of the
International Community in their mutual relations.
• Whiteman: ―the standard of conduct at as given time for states and other
entities subject there to.
• J.G.Starke: International Law may be defined as ―that body of law which is
composed for its greater part of the principles and rules of conduct which
states feel themselves bound to observe, and therefore, do commonly observe
in their relations with each other, and which includes also; (a) The rules of law
relating to the functioning of international institutions or organizations, their
relations with each other, and their relations with states and individuals; and
(b) Certain rules of relating to individuals and non-states entities so far as the
rights or duties of such individuals and non-state entities are the concern of
the international community.
Definition of Maritime Law
• Definitions of Maritime Law
• Gilmore and Black, in their the Law of Admiralty, define maritime law as ―A
corpus of rules, concepts and legal practices governing certain centrally
important concerns of the business of carrying goods and passengers by
water.
• William Tetley‘s Glossary of Maritime Terms describes maritime law as ―a
complete system of law, public and private, substantive and procedural,
national and international.
• Black‘s Law Dictionary, defines maritime law as ―the body of law governing
marine commerce and navigation, the carriage of persons and property, and
marine affairs in general; the rules governing contract, tort, and workers‘
compensation claims or relating to commerce on or over water.
Source of Law of the Sea and Maritime Law
• Sources-methods by which the rules have been created.
• Sources of Domestic Laws
• Classification of Sources of International Law
• International law commission
• Formal and Material Sources
• Primary and Secondary Sources
• Hard Law and Soft Law Sources
• Marine law consists of the articles and principles derived from custom,
judicial decisions, legislative enactment, and international treaties that govern
the legal relationships arising from the transportation of passengers and
cargoes on the high sea & and other navigable waters.
• Article 38 of the statute of ICJ
• (a) International convention whether general or particular establishing
rules expressly recognized by the contesting states. (b) International
Customs as evidence of a general practice accepted as law. (c) General
Principles of law recognized by civilized nations. (d) Subject to Article 59
judicial decisions and juristic works as subsidiary means for the
determination of rules of law.
• This article is not exhaustive-does not make reference to resolutions of
the GA of the UN
• International Law dynamic and fast-changing.
• Treaties
• Important source of international law
• Article 38(1)(a) Agreements between 2 or more states or between other
subjects of international law by which they create a relationship between
themselves.
• Bilateral and multilateral treaties in ITL.
• Sometimes a state can make a ―reservation in respect of a particular treaty, if
this reservation is valid the treaty provision for which the reservation is made
will not apply to that state. BILATERAL TREATIES To avoid double
taxation FNC Treaties - Friendship, Navigation and Commerce BIT Treaties-
Bilateral Investment Treaties.
• MULTILATERAL TREATIES Regulates trade between the contracting
states in a more general way Aims at unification of law in order to
facilitate trade and financing But most of them are not in force,
applicable to very few countries Aims at Specific standards of treatment
Standard treatment National treatment
• MFN clause Regionalism and Regional Treaties
• Commodity Agreements.
• Original and oldest source.
• Article 38(1)(b). Habits that are binding on the States.
• Created when a general practice followed by a number of states is
recognized as law(opinion juris).
• Elements of custom.
• Duration
• Continuity
• Generality Ex: the right of a state to issue its own currency rules, and its
obligation to punish counterfeiters of foreign currency.
GENERAL PRINCIPLES OF LAW
• First under Article 38(3) of the PCIJ and then Article 38(1)(c) of the ICJ.
• Those principles of law recognized by most or all of the states of the
world community in domestic law.
• Applicable to the maintenance of any legal system.
• Ex: Res judicata, estoppel, presumption, good faith etc.
• Has to be recognized by the world court.
JUDICIAL DECISIONS

• JUDICIAL DECISIONS
• Subsidiary means and an indirect source of ITL.
• Article 38(1)(d) : Decisions of the courts do not create any precedent.
Article 59 - No binding force - Only binding between parties.
• A means of recognizing law established by other sources ICJ-not binding
on international law Awards of International tribunal, Decision of the
municipal courts and ILC JURISTIC WORKS
• Subsidiary means for determining of rules of law. Juristic Work is
essential in developing rules that are sourced in treaties, customs ,general
principles of laws. Ex: Paquata Habana Case 175 US (1900)677
 MAKING OF INTERNATIONAL LAW

• Significance of consent
• Permanent Court of International Justice: 1927 SS Lotus Case
judgment
• International law governs relations between independent States.
• Law binding upon States therefore emanates from their own free will
• Centrality of consent in the law-making process means that states can resist
the imposition of rules that they perceive to be at variance with sovereign
interests.
• Hence the difficulty to establish legal regimes that create a common
set of international rules.
• Hence the difficulty in establishing legal regimes
that create a common set of international rules
VLT Art 11: The consent of a State to be bound by a treaty may be expressed by
• Signature
• Exchange of instruments constituting a treaty
• Ratification
• Acceptance
• Approval or accession = ratification
• By any other means if so agreed
Vienna Convention on the Law of Treaties Law
• •Signed 1969
• •Effective 1980
• •Condition: Ratification by 35 states
• •Ratified by 116 states (Jan 2018)
Ratification/ Acceptance/ Approval/ Accession: The state gives consent to be bound by a treaty
• LOS: An interesting example of the successful emergence of an
international regime acceptable by most states to a large extent
• Defines jurisdiction of states over maritime activities in various maritime
zones
• Navigation
• Exploitation of living and non living resources
• Laying of cables and pipelines
• Conduct of marine scientific research
MARE NOSTRUM/ CLAUSUM/
LIBERUM
• Mare Nostrum: Our Sea
• Roman Empire: 30 BCE to 17 CE
• Mediterranean
• Mare Clausum: Closed Seas
• Body of water under the jurisdiction of a state not open to all states
• 15 –17thCentury: Spain and Portugal
• Mare Liberum: Hugo Grotius 1609
• Open Seas = Freedom of the Seas
• Seas are open to all for trade
• Response to Portuguese Claim over East Indian Trade
• MARE NOSTRUM/ CLAUSUM/ LIBERUM
• International ocean governance: includes the processes, agreements, rules,
institutions, etc. developed to organise the way in which humans use the ocean
and its resources.
• Not including the territorial waters of countries, ocean governance relates to
the High Seas and international seabed “Area” which support vital biological
resources. However, because they are beyond the remit of any single
government to protect, they are subject to overexploitation, pollution and
habitat degradation, which together are undermining vital Earth support
systems.
• Known also as Areas Beyond National Jurisdiction (ABNJ), these areas are
notoriously difficult to manage with few laws to promote their
protection. The laws that are in place are often weak and poorly enforced.
Entities / Organization/ Associations/National and
International Bodies/ NGOs
• Ocean Governance- UNCLOS

• Marine Law ( safety, Security, and Marine Environment) : IMO

• Human Resource Perspective: Maritime Labour – ILO

• Maritime Business/ Shipping Business: - CMI, Classification Society,

BIMCO, P&I etc.