General on EU shipping rules
The general rights and obligations under the law of the sea have been instrumental for shaping the EU’s shipping policy and legislation. From the very early days of EU’s maritime safety regulation in the 1990’s until today, the policy has been based on a careful balancing between the rights and obligations of flag, coastal and port states under the law of the sea. As a consequence, an equally careful relationship has had to be established with the global shipping rules, notably the conventions adopted within the framework of the IMO.
Shipping is an international business and there is therefore a longstanding tradition of regulating it at international (global) level, leaving little space for regional bodies like the EU. The preference for global rule-making is also confirmed in numerous articles of UNCLOS.(1) Eg. UNCLOS Articles 94, 211, 218 and 220. In substantive terms, maritime safety and environmental protection is heavily regulated at international level, leaving relatively few ‘gaps’ for additional regional legislation. The IMO has adopted some 60 international treaties, covering anything from technical standards for ship design and construction and standards for discharge, to rules on dangerous goods and salvage, as well as search and rescue liability for pollution damage.(2) See www.imo.org/en/About/Conventions/ListOfConventions/Documents/Conven-tion%20titles%202016.pdfGlobal shipping rules have traditionally not singled out the Arctic as an area where specific rules apply, but this partially changed in 2017, now that the Polar Code has entered into force.(3) International Code for Ships Operating in Polar Waters (IMO Doc. MEPC 68/21/ Add.1 Annex 10, full text available at www.imo.org/en/MediaCentre/HotTopics/polar/Documents/POLAR%20CODE%20TEXT%20AS%20ADOPTED.pdf). The Code signifies amendments to three main IMO Conventions: the International Convention for the Safety of Life at Sea (SOLAS); the International Convention for the Prevention of Pollution from Ships (MARPOL); and the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW). It entered into force on 1 January 2017.
Despite this very globally-oriented starting point, the EU’s maritime safety legislation has developed rapidly over the past 25 years, and now comprises some 50 directives and regulations.(4) For a list, see https://ec.europa.eu/transport/sites/transport/files/modes/maritime/safety/doc/maritime safety legislation.pdf Roughly half of these acts relate in some way to marine environmental protection, which is an objective closely associated with maritime safety. Most of the EU rules are based on - or are even direct copies of - rules that also feature at international level (laid down in an IMO convention). Over time, the EU measures have tended to extend beyond the global rules by providing some regional ‘added value’, by advancing their entry into force, strengthening their enforcement within the Union, or sometimes by adding substantive requirements to the IMO rules.(5) See H. Ringbom, EU Maritime Safety Policy and International Law, (Martinus Nijhoff Publishers, Leiden/Boston, 2008).
Even EU rules that merely copy the international standards are far from pointless, however. In this case, the added value of EU legislation is that it harmonises implementation across the Union. Irrespective of formal adherence to the international rule in question, it brings the international obligations into the realm of EU law,(6) Features such as the direct applicability/effect of EU law and its supremacy over national laws will strengthen the legal status of the rules concerned and widen the range of persons who may rely on them. This is particularly the case as EU rules will normally impose the obligations concerned directly onto the persons addressed in the conventions (such as ship masters, classification societies, companies etc.) without relying - as the IMO conventions do - on the flag state to implement these matters in their national systems. and it significantly strengthens the legal tools available against member states that fail to implement the international rules.(7) The Commission supervises the rules being complied with and may, if not, bring member states to court. Member states may even face lump-sum penalties for non-compliance with EU law requirements. See Treaty on the Functioning of the European Union (TFEU) Article 260. The presence of EU rules in a given field also transfers the competence for dealing with other issues in that field from the member states to the Union itself, as well as in respect of future international negotiations on the topic concerned.