Part I – The 3 Ws of Ratification: What? When? Why?
By Deniece M. Aiken *
2021, August 1:The sinking of the RMS Titanic on April 15, 1912 triggered the initiation of maritime governance and the development of international standards to guide the performance and activities of states, shipowners, seafarers and other shipping industry stakeholders.
In less than two years after that historic tragedy, the International Convention for the Safety of Life at Sea (SOLAS) 1914 was drafted. Following the adoption of the SOLAS Convention, the International Maritime Organization (IMO) subsequently introduced a number of conventions entailing international standards concerning maritime safety; prevention of marine pollution; liability and compensation, especially in relation to damage caused by pollution. And there were others dealing with facilitation, tonnage measurement, unlawful acts against shipping, to name a few. For these international standards to become effective, states were first required to demonstrate their willingness to be bound by the standards. This they did by ratification.
What is ratification?
Ratification is the international act whereby a state establishes on the international plane, its consent to be bound by a treaty (Article 2, Vienna Convention on the Law of Treaties). In other words, the State agrees to become party to the treaty and is willing to undertake, implement and/or adhere to the legal rights and obligations stipulated in the text. Generally, implementing legislation, usually in the form of an Act of Parliament, needs to be drafted at the national level to give effect to the convention within the jurisdiction of the state. Apart from ratification, states may also express consent to be bound by a treaty by signature, acceptance, approval and/or accession.
Becoming party to a treaty is only the beginning of a series of actions required by the State in honouring its obligations to be bound by the treaty. As outlined in Maritime Legislation by P.K. Mukherjee (2002), when a state becomes a party to a convention, by the process of ratification, accession, adoption or acceptance, the legal effect of it is that it (the state) then becomes bound by the convention. It is therefore obliged incorporate the convention into its body of national law. States must incorporate the international treaty within its national law in order for the treaty to take full effect within its territorial jurisdiction. How this incorporation into national law is effected is determined by the legal system of the particular state.
Dualism v Monism
General principles of international law outline that international treaties can be integrated into the national legal systems by way of dualism or monism. For a monistic state, once ratified, international obligations are directly incorporated into national law. In some states however, upon ratification, treaties can be applied automatically within the jurisdiction of the State, once the treaty is self-executing. If the treaty is not self-executing, further legislative action is required for the treaty to be properly incorporated into the State’s national law; as in The Netherlands and the Dutch Caribbean Territories.
Dualism, on the other hand, requires express legislative action, the enactment of a new national law or amendment of an existing national law, for the incorporation of a treaty into national law. Most commonwealth nations tend to apply a dualistic system, hence, most Caribbean States fall within this category. There are also some states, such as the United States of America, that adopt a hybrid approach to incorporation (a mixture of both the monistic and dualistic approaches). Other states which apply a hybrid approach are Guyana and St. Lucia.
When is ratification required?
The consent of a state to be bound by a treaty is expressed by ratification when:
- the treaty provides for such consent to be expressed by means of ratification;
- it is otherwise established that the negotiating States were agreed that ratification should be required;
- the representative of the States has signed the treaty subject to ratification;
- the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation. (Article 14, Vienna Convention on the Law of Treaties).
Following the adoption of a maritime convention by IMO Member States, the convention is thereafter opened for ratification, the conditions for which are agreed during the drafting process. For example, Article VIII(3) of the Maritime Labour Convention states: “This Convention shall come into force 12 months after the date on which there have been registered ratifications by at least 30 Members with a total share in the world gross tonnage of ships of at least 33 per cent”. Similarly, Article 18 of the Ballast Water Management Convention states: “This Convention shall enter into force twelve months after the date on which not less than thirty States, the combined merchant fleets of which constitute not less than thirty-five percent of the gross tonnage of the world’s merchant shipping, have either signed it without reservation as to ratification, acceptance or approval, or have deposited the requisite instrument of ratification, acceptance approval or accession in accordance with Article 17”.
Why ratify?
All the benefits and protections created by international conventions become accessible on ratification. In other words, states need to ratify conventions in order for the international standards developed to be fully established. Additionally, ratification will determine the applicability of the convention within the national jurisdiction of individual Member States. This is particularly important for dualist states, as the incorporation of the convention within the national laws will determine the applicability of the terms of the said convention within the national courts. This was determined in the decision of the Supreme Court of Belize The Attorney General of Belize v MS Westerhaven Schiffahrts GMBH & CO KG and Reider Shipping BV, Claim No. 45 of 2009, as well as, the Eastern Caribbean Supreme Court decision in Whitney Jacobs v Admiralty Transport Company Ltd, Claim No. 162 of 2006.
Ratification is also important as, failure to ratify a convention may still result in the convention being applied by the courts, if one of the parties have ratified the convention. In the cases of Qatar v Bahrain and the Territorial and Maritime Dispute between Nicaragua and Colombia the International Court of Justice applied the United Nations Convention on the Law of the Sea (UNCLOS) even though one of the parties was not bound by it.
Perhaps the most compelling reason for the ratification of maritime conventions by States is uniformity of maritime law, which is substantively within the various maritime treaties and conventions.
Uniformity regarding maritime regulations and activities is important as it facilitates the creation of international standards that are applied across all geographic areas and locations. It enables ease of administration of international shipping as it relates to navigation, insurance, flagging and registration, settlement of maritime claims and other issues, training and provision of labour, port operations, and environmental practices, to name a few. It creates a surety and confidence in maritime operations, regardless of the location; and, ultimately, reduces the instances of conflict due to differing maritime practices within the jurisdiction of States.
For Caribbean States, region-wide ratification of maritime conventions would have far-reaching effects. It would result in better regulation of the marine environment, better use of maritime resources, and greater ease in collaboration between individual countries and on a larger scale as a region.
Region-wide ratification would create improved standards of maritime governance within the Caribbean region, which will ultimately deliver benefits to the states, collectively and individually. []
Deniece M. Aiken, BSc LLB MSC (Maritime Law & Policy); member of International Association of Marine Consultants and Surveyors; Director of Corporate Affairs for the Women in Maritime Association, Caribbean; WMU-Koji Sekimizu Fellow for Maritime Governance.
