The importance of domestication of the International Maritime Organisation Convention into Seychelles’ national laws |12 April 2021
Seychelles is a small island State in the Indian Ocean with a large Economic Exclusive Zone of 1.3 square kilometres. Seychelles’ economy depends heavily on the tourism, fishing and shipping industries. Almost 60% of the goods are transported by sea in Seychelles through cargo vessel; without doubt shipping plays an important role in Seychelles’ economic growth, prosperity and development. Seychelles has its own national tanker vessels, under the Seychelles Petroleum Company (Seypec) conducting international voyage. Many ferries are a mode of transport between the islands. Maritime transport is essential for a maritime state like Seychelles. Over the recent past, the number of cruise ships calling at Port Victoria has increased. However, due to the global pandemic, which has affected mainly the tourism industry, Seychelles had to put restrictions on the docking of cruise ships coming to Seychelles.
Seychelles became a member of the International Maritime Organisation (IMO) in 1978 by ratifying the Convention establishing the International Maritime Organisation Convention. The IMO is a specialised agency of the United Nations. Its primary purpose is to develop and maintain a comprehensive regulatory framework for shipping and its remit today includes safety, environmental concerns, legal matters, technical co-operation, maritime security and the efficiency of shipping.
The IMO has produced over 50 Conventions and Protocols. Safety and security regulatory framework are such as International Convention for the Law of the Safety at Sea (SOLAS), Convention on the International Regulations for Preventing Collisions at Sea (COLREG), and International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW); Prevention of marine pollution and response such as International Convention for the Prevention from Ships (MARPOL),The ‘Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London), International Convention for the Control and Management of Ships' Ballast Water and Sediments (BWM), International Convention on the Control of Harmful Anti-fouling Systems on Ships (AFS), International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC) and lastly Liability and Compensation convention such as Convention on Limitation of Liability for Maritime Claims (LLMC ) and International Convention on Civil Liability for Oil Pollution Damage (CLC).
Seychelles has ratified over 30 IMO Conventions. Seychelles’ procedure for execution of treaties (IMO Convention) involves the line Ministry of Transport, Seychelles Maritime Safety Authority, Foreign Affairs Department, Attorney General’s Office, National Assembly and President’s Office.
Once a Convention is ratified, member states have the responsibility to develop the standard required related to maritime transport. Government has the duty to implement and enforce these standards through flag /port /coastal state responsibility. Significantly the primary responsibility for implementation and regulations relating to ship is the flag state. In Seychelles, the flag state is the Seychelles Maritime Safety Authority as one of its various functions is to ensure the implementation of international maritime conventions, agreements and treaties in consultation with the line Ministry and Attorney General’s Office. Then in most cases, the legal text is officially gazetted as a Regulation under the Seychelles Merchant Shipping Act.
The process of implementation and enforcement of these standards in national law is called domestication. It is upon domestication that the convention achieves its objectives.
Primarily convention is drafted and ratified to ensure harmonisation of laws for a “level playing field” across the various legal systems in the world.
Through domestication the flag state (Seychelles Maritime Safety Authority) is given the authority and mandate to enforce the international standards and effectively carry their function.
IMO assists member states with technical cooperation for the domestication of international conventions. Seychelles benefited from such in 2019 when the IMO conducted the ISPS Code training with the relevant authorities. In addition, institutions like IMO-International Maritime Law Institutes was created to assist member states in providing lawyers the training to understand the IMO Conventions and gain necessary skill to draft national legislation. As International Maritime Organisation has called upon member states to place emphasise on the domestication of IMO Conventions.
So, why is domestication of IMO Conventions important for Seychelles?
Seychelles has an active participation within the IMO and continuously benefit with various technical assistance. Seychelles needs to be in compliance with its international obligation to adhere to the international standards.
IMO does not have the enforcement mechanism and rely upon member states’ responsibility for domesticating conventions. In many instances at bilateral level countries tend to pressure other states to domesticate some conventions to ensure compliance. In 2019, the United States of America placed Seychelles on notice for non-compliance with the International Ship and Port Facility Security (ISPS) Code which is a key legal instrument to prevent and suppress terrorist acts against ships at sea and in port, and to improve security on vessels and ashore at port facilities. It can be said that the diplomatic pressure was one of the many factors contributing for Seychelles to domesticate the ISPS Code as Merchant (ISPS) Regulation 2020, given United States of America initiated the ISPS Code at the IMO as consequence to the attack on the World Trade Centre in the United States of America on September 11, 2001.
On another international aspect, countries engaged on various memorandum of understanding and agreement on maritime transport or specific IMO Conventions. For example, the recognition of Seafarers Certificates as per the STCW Convention, to ensure that seafarers working on board a vessel are qualified.
Maritime Safety and Security is an area of cooperation for many regional organisations. Member states are once more called upon to ratify and domesticate international maritime convention, which include also the IMO Conventions.
At national level, as a maritime state, Seychelles has always placed great importance on the maritime sector. The government contributes greatly toward the development the maritime sector with the involvement of the private sector.
Maritime governance through legal framework will ensure the enforcement and protection of seafarers’ right, action against vessel source pollution into the sea as well as gas emission release in the atmosphere, effective mechanism for search and rescue to reduce the loss of lives at sea, ensuring the safety of vessels, including fishing vessels then lastly provide jurisdiction to prosecute unlawful acts which threaten the safety of ships and passenger and their crew. Indeed, the IMO conventions are cross sectional within the maritime sphere and its domestication will have benefit for Seychelles.
The public continues to expect a good standard for maritime transport. Maritime transport is key for inter-island movement.
On the commercial side, one among many factors for investor assesses the legal framework in force nationally and jurisdiction of court to litigate cases. Shipping industry is a lucrative business that reaps millions per year. Ship owner, shipping agent and ship company in cases face civil liability and have to pay for compensation from oil pollution incident and accident of vessels carrying passenger (cruise ship).
For Seychelles, the maritime sector has prospects and various opportunities for growth. This can be achieved in creating a conducive environment and a “level playing field” for government, ship owners, ship companies, ship agents and seafarers.
Seychelles should be proactive and not wait upon a marine incident to react. In recent development in the region, such as the Japanese vessel MV Wakashiooil spill [1] incident that happened in Mauritius’ territorial sea, called out for reflection given the frequent maritime traffic passing through the Seychelles territorial sea.
Lastly, Seychelles plays an active role in strengthening maritime security. The IMO initiated the Djibouti Code of Conduct, one of the various mechanisms addressing piracy in the Western Indian Ocean. Seychelles has adopted some of the recommendations of the Djibouti code of conduct. The Convention for suppression of unlawful act against the safety of maritime navigation (SUA) 1998 and its Protocol addressed the danger of terrorism at sea for the first time. The SUA instruments constituted an important milestone in the development of international anti-terrorist legislation. Significantly, IMO is one the many international organisations working to address some of maritime crimes which threaten the freedom of navigation.
With available resources, in recent years the relevant authority has drafted various laws such as a new law that establishes the Marine Accident Investigation Board under the Merchant shipping (amendment) Act 2014; Merchant Shipping (Labour Convention) Regulation, 2015; Merchant Shipping (Certification of Seafarer of International Ship) (Amendment) Regulations, 2015; Maritime Safety Authority Act; Merchant Shipping (Amendment) Act 2019 and the Merchant Shipping (International Ship and Port Facility Security Code) Regulations, 2020.
In reality, there are many challenges and limitations to the implementation phase within the domestication process. Domestication is a lengthy process; domestication of a convention is about minimum six months given the need for consultation and finalising the legal text as per the regulations; in addition relevant authorities have other allocation of duties to discharge their function.
Another challenge is the lack of maritime awareness in Seychelles. Maritime awareness is the effective understanding associated with the maritime domain that could impact security, shipping, marine environment and the economy. This multi sectorial awareness can be of great importance in fostering engagement of relevant stakeholders in the domestication process at an early stage.
Significantly, some conventions may not be easily or fully implemented in some small island states compared to larger states due to the degree of development in the shipping industry and capacity to carry large traffic of vessels because of the level of trade and logistics, infrastructure, trained labour and consequently appropriate technology. Therefore the application of maritime conventions is faced with such limitations making it hard for implementation.
Despite these challenges and limitations, Seychelles has tried to prioritise the key IMO conventions such as International Convention for the Law of the Safety at Sea (SOLAS), Prevention of marine pollution and response such as International Convention for the Prevention from Ships (MAPOL), International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) and Maritime Labour Convention (MLC). Seychelles considers safety of vessel, protection of maritime environment and the protection of seafarers’ right as the key alpha elements in the development of the maritime sector. However given time and resources there’s need to domesticate many more other conventions as they may be as needful to the development of sector and compliance with the international standards.
In conclusion, although it can take time to domesticate half of the IMO conventions into national laws, with government set of action and strategy as well allocation of resources like training labour, developing infrastructure, creating maritime awareness and engaging stakeholders prioritising the maritime sector in the budget allocation, Seychelles considers the importance of domestication of the IMO Convention into Seychelles national laws. This will impact maritime domain that could impact security, shipping, marine environment and the economy.
Dericka Figaro
[1] “Why the Mauritius oil spill is so serious” https://www.bbc.com/news/world-africa-53754751