Instrumentos

Recent maritime history demonstrates that a properly defined government shipping policy, tailored to its particular national conditions, is vital for the country’s maritime development. All government functions, or functions of public authorities within the scope of maritime administration, have to be those assigned to it within the

framework of the government’s overall maritime (shipping) policy and duly reflected in its maritime legislation. Some economists define shipping policy as “A totality of economic, legal and administrative measures by which the State influences the position of its fleet in the national economy and in the international freight market.” It is quite correct from the economic point of view that one of the most important functions of the government is to strive for the development of the national economy and international trade in which shipping plays a very important part. In fact today, under the generally peaceful environment, government policy in all countries, whether developed or developing countries, is economically oriented. However, as an instrument of the State with the ultimate goal to meet and maintain the continuously increasing requirements of the general public, the national government has a large variety of goals, not only those described by the economists, but also those which can be justified for the good of the general public. As mentioned earlier, government general policy in shipping falls into two broad areas, namely promotion of, and participation in, international shipping, and implementation of international obligations.

Promotion and participation of international shipping

How to achieve the maximum gain for a national shipping industry in the international market has always been a major concern of all governments. The natural tendency of all nations, including the traditional maritime countries and newly developing maritime States, is to look at shipping from their own national standpoint, and to see where they can gain an advantage. As discussed before, historically, a large number of interventionist measures have been developed and practised by various governments, which have mainly taken the form of national regulations or requirements, financial treatment, or bilateral and multi-lateral arrangements.

It would be wrong to say that all protectionist measures are negative and therefore should be abolished. In fact, some of them have become international customary practice recognised by all countries, such as cabotage, and bilateral and multi-lateral agreements. It is also broadly acknowledged that some kind of protection is essential to promote national shipping development, especially in the newly developing maritime countries where shipping and related industries are too weak to compete on equal grounds in the international market.

However, protection is not the norm. With market mechanisms now playing an increasingly important role in the development process, the role of government is

progressively shifting towards providing an appropriate enabling environment for private enterprise, and facilitating and fostering the establishment and expansion of private business. A number of governments in both developed and developing countries have successfully pursued pro-active policy interventions in order to: influence savings and investment rates; promote the efficient functioning of markets; improve access to international markets; stipulate the diffusion of technology; and create the best possible conditions for ensuring the competitiveness of their shipping and other related commercial activities. However, there is growing recognition in nearly all countries that governments, in promoting shipping development, should rely closely on market forces as the primary means of ensuring optimum allocation of resources.

Another important role of the government in promoting its shipping industry is to provide necessary services, which contribute to enhanced economic performance. Typically, it falls to the government to ensure the provision of port infrastructures, including dredging of channels, maintenance of navigation support services, icebreaking, and so on. The government role is also directed at promoting human resource development, providing facilities for training of seafarers, ensuring a free flow of information and the advancement of science and technology, as will as setting up systems of labour and social welfare conditions.

Implementation of International Obligations

The rights and duties of flag States, port States and coastal States have been embodied in various international regulations or conventions adopted by competent international organizations, namely IMO and ILO. To enjoy these rights and to protect their national interests, States have to fulfil their obligations.

When a State becomes a party to an international convention by the process of ratification or accession, the legal effect of it is that the State then becomes bound by the convention and is therefore obliged to implement it by incorporating its provisions into national law. If the State fails to implement the convention, it is nevertheless still bound by the convention vis a vis other State parties, but it cannot enforce the convention against them, unless that convention becomes part of its law by whatever legal process applicable in that State’s jurisdiction. The implementation of an international convention to which a State has become a part is therefore an essential step without which the State Party cannot benefit insofar as the application of that law within its jurisdiction is concerned.

In this connection, a flag State , whether a contracting party to an international convention or not, will be bound by the convention vis a vis other contracting Parties. Ships flying its flag will be subject to the requirements of the convention when they visit ports of contracting Parties, which is often referred as “no more favourable treatment”. If a ship fails to meet the requirements of the convention because its flag State has not ratified it, for example, the ship has no a required certificate, then the ship will be detained. In fact, due to this reason some ships have been forced to change their flag. On the other hand, when and only when a State has become a Party to a convention and has given it legal effect by enacting national law with respect to the convention, the State is able to enforce ships visiting its ports.

National interests with respect to implementing international obligations related to safety and pollution regulations can be identified as follows:

• To protect citizens from loss of life and personal injury;

• To protect against property or other economic losses caused by accidents;

• To protect the environment and maintain sustainable development; and

• To maintain a good national reputation, and thereby to promote the opportunities for economic development.

However, some countries, especially developing countries, have faced difficulties in implementing international obligations due to their economic difficulties, legislation, infrastructure, law enforcement resources, or expertise. Once these difficulties are overcome, these countries will certainly be active in implementing the conventions because of the advantages mentioned above which are so attractive for the countries to do so.