Legislations to carry out the obligations as a Member State
One of the difficulties confronting countries that have ratified international conventions pertains to putting up the necessary legislation to carry out the obligations as a Member State. Generally, international conventions do not have the force of law and therefore require a national law to be enacted to give effect to the treaty provisions at the domestic level.
This proves to be a challenge to countries that follow the dualist system of international law not only because of the lengthy and tedious legislative process which is characteristic in many jurisdictions, but also due to the dearth of maritime experts who are proficient in legislative drafting.
In contrast, countries adhering to the monist system consider international treaties to which they become party to part of the law of the land and therefore there is no need for domestic law to implement the conventions.
The Philippines subscribes to the dualist principle which dictates that international conventions which the country has ratified must be transposed into national law. The country endeavors to fulfill this obligation not only as an attestation of being a responsible member of the international maritime community but more importantly to be able to participate in the global maritime arena where convention rules apply.
It is within this setting that Congress enacted RA 9483 in 2007 to implement the 1992 International Convention on Civil Liability for Oil Pollution Damage and the 1992 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage.
Likewise, to give effect to the provisions of the International Convention on Standards of Training, Certification, and Watchkeeping for Seafarers,1978, as amended (STCW), RA 8544 on the Act Regulating the Practice of the Merchant Marine Profession in the Philippines was passed by Congress in 1998.
RA 8544 was later amended by RA 10635 Designating the Maritime Industry Authority (MARINA) as the Single Maritime Administration of the STCW Convention.
There are bills now pending in Congress to implement maritime-related conventions which the Philippines have ratified and include: the International Convention on the Prevention of Pollution from Ships (MARPOL1973/1978), Maritime Labor Convention 2006 (MLC), Ballast Water Management Convention (BWM) and the Anti-Fouling Systems (AFS).
There seem to be just a few of the many IMO conventions which the Philippines ratified with the corresponding legislation. How then does the country deal with the other conventions absent any legislation to implement them?
The absence of legislation to specifically implement conventions does not mean the Philippines reneged on its responsibility as a signatory to the conventions as existing laws provide the bases by which the country’s international commitment could be performed; however, it is admitted that substantial gaps exist between convention provisions and the stipulations in the national law.
Those gaps give rise to deficiencies and weaknesses in the effective implementation of the conventions. Associated to the issue is the question of what the national legislation implementing an international convention should cover if gaps are to be determined.
A logical step would be to closely scrutinize what the convention proper demands from member States. Most of the articles of the conventions are directives and instructions addressed to the members.
The codes and annexes to the convention contain the detailed standards and minimum requirements which the regulated group must conform to as in the case of the International Convention on the Safety of Life at Sea (SOLAS) and MARPOL.
Ratifying States are to set the necessary mechanisms, including that of enacting domestic legislation and putting up the necessary regulatory framework using as reference the minimum requirement found in the codes and annexes and which the regulated community must observe.
National legislation to implement maritime conventions must therefore focus on first identifying who will have the primary task in government or among its instrumentalities/agencies to implement the requirements of the convention.
The mention of ‘administration’ calls for an identified entity/agency after which the authority and power to implement the convention are conferred upon the said agency. The grant of authority to formulate and issue rules and regulations including those of undertaking compliance monitoring and enforcement activities will facilitate the transposition of convention requirements into domestic law. It is important though not to omit in the national law the basic principles laid down by the convention.
It may not be too much of a trouble to try this option in transposing international conventions into national legislation. Abbreviating the legislative process by entrusting the rule-making functions to the ‘administration’ or the agency (ies) would be worth everybody’s while. The propensity to include in the legislation such technical details as are in the convention codes and annexes brings about protracted debates and arguments usually translated into a year-long delay in passing the law.
It is even possible, as in the case of the MARPOL bill, to spend two (2) long decades in the backburner. Besides, complications may arise if the law misses out on any of the technical details or if future amendments to the technical standards and requirements of the convention are introduced.
Keep maritime legislation simple. We do not need complicated laws to regulate an already convoluted maritime industry.
BY ATTY. BRENDA V. PIMENTEL