Sri Lanka has enacted Maritime Legislation making its claim to the United Nations on extended continental shelf with the aim of expanding the country’s ocean area seventeen times larger than its land area, said Supreme Court Judge P.A. Ratnayake, PC when he delivered the keynote address at a seminar on “Shipping and Marine Pollution” held [...]

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Sri Lankan judge stresses the need to draft required maritime laws

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Sri Lanka has enacted Maritime Legislation making its claim to the United Nations on extended continental shelf with the aim of expanding the country’s ocean area seventeen times larger than its land area, said Supreme Court Judge P.A. Ratnayake, PC when he delivered the keynote address at a seminar on “Shipping and Marine Pollution” held at the BMICH in Colombo recently.

It was co-sponsored by the International Centre for Law and Practice (ICLP), Indian Ocean Marine Affairs Coorporation (IOMAC) and Our Nation and the Sea Initiative (ONS).

He said however that there is much that needs to be done in the Maritime Legislation field to ensure that the country’s legislative requirements are met. He recommended that positive action be taken early to ensure that the required laws are drafted and thereafter enacted. If difficulties are faced in the area of drafting, assistance could be obtained from the Technical Corporation Division of the IMO for this purpose, he said. Sri Lanka has different legislation handling the various sectors of the shipping industry. In most areas there is hardly any provision encouraging such coordination. One such area is the area of control and regulation of merchant ships and the area of control and regulation of marine pollution. The control and regulation of ships is done by the Directorate of Merchant Shipping created under the Merchant Shipping Act. But the control and regulation of ship-source marine pollution is being done by the Marine Environment Protection Authority created by the Marine Marine Pollution Prevention Act No. 35 of 2008. In this important area where coordination is absolutely necessary he said, he didn’t see such coordination in terms of the present legal regime.

A ship entering a port has to be examined to consider a possible threat to the marine environment. Due to the conventional obligations mainly under the International Maritime Organization convention and the Memorandum of understanding on Port State Control of the Indian Ocean Rim Region ship inspection is conducted by the suitably qualified officials appointed as Port State Controllers by the Director General of Merchant Shipping. In terms of the provisions of the Merchant Shipping Act and due to the necessity of accountability these officials need to be from the Directorate of Merchant Shipping. Accordingly the Marine Environmental Protection Authority officials cannot board a ship and examine its certificates and other requirements in respect of a threat of Marine Pollution. It would make matters more difficult at present as these two organizations fall under two different Ministries. Marine Environment Protection Authority falls under the Ministry of Environment and the Directorate of Merchant Shipping fall under the Ministry of Ports and Highways.

Another instance of lack of coordination is between the Port Administration and the Directorate of Merchant Shipping. Ports are regulated under the provisions of the Sri Lanka Ports Authority Act and Shipping is regulated by the Merchant Shipping Act. In the performance of Port State Control functions or functions pertaining to arrest of ships done under the Merchant Shipping Act and Admiralty Jurisdiction Act it is necessary for the Port State Controllers as well as the Marshal of the Admiralty Court who are officials of the Directorate of Merchant Shipping to coordinate with the Harbour Master and his officials who are working for the Sri Lanka Ports Authority under the provisions of the Sri Lanka Ports Authority Act. There is no proper coordination provided by the two enactments. There was a time when shipping was done by the shipping Ministry and Ports was handled by the Port Ministry. Fortunately it is not so now and both fall under one ministry.

Another area of lack of coordination could be observed when considering the Piracy Act no. 9 of 2001 and Suppression of Unlawful Acts against Safety of Maritime Navigation Act No. 42 of 2000. Piracy Act was enacted at the initiative of the Ministry of Ports. The Suppression of Unlawful Acts against Safety of Maritime Navigation Act was enacted at the initiative of the then Ministry of Foreign Affairs. Both these enactments were enacted within a short period of each other. He observed that some of the provisions in both enactments overlap mainly in the area of Control of Piracy.

In the Piracy Act, the main role on Control of Piracy is given to the Sri Lanka Ports Authority. There is only a coordination clause with the Directorate of Merchant Shipping. It should be borne in mind that piracy is not confined to the ports or port limits. It extends to all ocean areas. The authority having competence in respect of all ocean areas is the Directorate of Merchant Shipping. The competence of the Sri Lanka Ports Authority is confined to the ports and port limits. It would have been most appropriate if the function of eradicating sea piracy was entrusted to the Directorate of Merchant Shipping, he said. Legislation on oceans falling under Law of the Sea and Shipping Law are the two main areas in the Maritime Legislation in Sri Lanka, Justice Ratnayake said. Law of the Sea is an area on Public International Law where relations between States, between States and International organizations are mainly regulated. Shipping Law deals with the area of Private International Law where generally the commercial activities in the area of shipping between nationals of one State or several States are regulated.

Explaining basic aspects of ocean legislation which fall under the Public International Law area of Law of the Sea he said that it is necessary to have some understanding of certain legal concepts that govern the formulation of the legal norms that deal with ocean affairs.

Justice Ratnayake pointed out that the Dutch East India Company wanted the right of navigation on oceans whereas the English wanted total control of the sea areas by the coastal states. If the English concept prevailed no merchant ship could travel on the territorial waters of a state or on the strait waters of a strait without the permission of the coastal state.

These concepts played an important role not only in the International ocean regime but also had an impact when National legislation was drafted in respect of the ocean regimes of the coastal states, he disclosed.

When it comes to Law of the Sea the main edict in the area of International Law is the United Nations Convention on Law of the Sea III (UNCLOS III), he revealed.

The UNCLOS III in many of the articles dealing with ocean regimes give the member States the sovereign rights to explore, exploit, conserve and manage the resources given in the particular ocean area.

To effectively manage the mandate given by the United Nations Sri Lanka has enacted different types of legislation. Some of the legislation cover many areas of Law and are of general application.

A discourse on legislation in respect of oceans is not complete at least without a basic introduction to the Maritime Zones Law. It can be observed that this law has been enacted in 1976. But UNCLOS III was signed at Motego Bay in 1982. Nevertheless it was not necessary for basic provisions in the Maritime Zones Law to be amended after Sri Lanka acceded to the convention notwithstanding the long period between enactment of the Maritime Zones Law and the promulgation and accession of Sri Lanka to UNCLOS III, he said.




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