International legal issues and problems of implementation in the field of maritime transport safety: review and constructive theses

Kupriyanovich Mariya Sergeevna Postgraduate student, Department of International Law, Federal State Research University "Institute of Legislation and Comparative Law under the Government of the Russian Federation" 117218, Russia, Moscow region, Moscow, Bolshaya Cheremushkinskaya str., 34 timofey.t.nauka@internet.ru Other publications by this author

Introduction

The emerging challenges and threats to the security of individuals, society, the state, international organizations and the entire international community, and especially the Russian Federation, attract the special attention of scientists and practitioners. The researchers effectively summarize the conceptual, substantive and specific characteristics of threats and challenges to the existence of modern society, suggest possible ways to solve the emerging contradictions (S.O. Gavrilov ^[5], O.V. Damaskin ^[7], A.I. Zemlin ^{[10; 11]}, A.A. Kokoshin ^[18], E.A. Stepanova ^[27], T.Ya. Khabrieva ^[31], I.V. Kholikov ^[33-36], etc.). Threats and challenges today arise and develop in various fields of human activity, including in the organization of transport logistics at sea.

Modern constructs forming the system-forming components of international law, the real characteristics of its functioning and the features of theoretical and research problems of international legal mechanisms are studied in the works of V.V. Bogatyrev ^[3], A.N. Vylegzhanin ^[4], R.A. Kalamkarian ^[13], A.Ya. Kapustin ^[14], A.I. Kovler ^[17], A.L. Kolodkina ^[19], V.L. Tolstykh ^[28], T.Ya. Khabrieva ^[32] and others. Research in the field of knowledge of the modern mechanism of ensuring international maritime security has been conducted for a long time and has deep roots in the national school of jurisprudence. They extend to the methodological, theoretical and empirical levels of scientific research, focus both on the assessment of challenges and threats in this area, and on the characterization of international legal mechanisms for this ^[22].

Actual problems of Russian and international maritime law, its structural foundations, the current state and development trends, the role of the International Tribunal for the Law of the Sea in ensuring international maritime legality and safety, legal problems of operation of ships without crews and many other issues of legal regulation of maritime transport safety are disclosed in the scientific works of V.N. Gutsulyak ^[6], which has important methodological and orientation significance for this study.

A comprehensive study of the problems of ensuring security in maritime transport, preventing the creation of hotbeds of conflict and armed struggle against the use of maritime means and routes, countering illegal encroachments on legally protected values, maritime transport and coastal areas, combating piracy and other crimes, the role of international legal mechanisms in these issues, as well as the role and place of Russia in Today, much attention is paid to these processes by society, the state, the scientific community and specialists in the field of law enforcement.

The special attention of researchers from international, criminal, civil and other branches of legislation, as well as representatives of other areas of social and humanitarian knowledge, was raised by the issues of the complexity of security issues in the modern era, the fight against piracy, the legal qualification of their actions, as well as the prevention or prevention of damage from their criminal actions, which are devoted to the publications of V.R. Avkhadeev ^[1], Yu.V. Bobrova ^[2], V.N. Gutsulyak ^[6], I.S. Zhudro ^[8], A.T. Zaburunnova ^[9], I.N. Zolotukhina ^[12], N.A. Knyazeva ^[15], V.N. Koval ^[16], A.L. Kolodkina ^[19], P.Yu. Naumova ^[24-26], I.V. Kholikova ^[35], I.A. Shulyatyeva ^[39], as well as author's research developments ^{[20; 21; 23; 29; 30]}.

The popularity of knowledge of the origin, nature, essence, axiological characteristics and trends in the application of international norms governing the field of maritime law, noted in the scientific literature and recorded in modern research, however, indicates that today the issues of international legal regulation of maritime safety and the implementation of certain provisions of international law (the United Nations Convention on the Law of the Sea) remain unresolved. The United Nations Convention on the Law of the Sea, 1982) into domestic legislation.

Research methodology and methods

The main heuristic means and methods of research in the work were complex and systemic varieties of scientific analysis and synthesis of data, analogy of information and characteristics, the method of advancing and verifying theoretical and legal hypotheses, generalization of conceptual provisions, functional cognition, historical and formal legal methods. The use of these methods provided an opportunity for the author of the article to understand the essence of modern conflict social processes, against the background of which there is an unprecedented intensification of maritime transport in the 21st century, which generates complex complex problems, including in the field of their international legal regulation.

This made it possible in the system of international maritime law to know the group of norms that regulate safety in maritime transport, as well as to determine the spatial scope of their operation, functional purpose and features of their actual application.

In order to organize effective legal security in maritime transport, it is necessary to summarize the international regulatory framework for countering threats to maritime transport security; identify current trends in maritime transport security; substantiate the author's proposals for improving legal regulation in the field of maritime transport security organization. The solution of these tasks is dictated by a certain author of the object of research, which is the system of norms of international legal regulation of safety in maritime transport, as well as its subject, which is the consideration of the international legal mechanism and the problems of implementing the norms of international maritime law in domestic legislation to ensure safety in maritime transport.

The main part

The dynamics of the development of the legal mechanism for ensuring safety in maritime transport is closely interrelated with the stages of development of international maritime law and changes in State practice in this area. This pattern can be used as the basis for determining the criterion for periodization of the history of the development of this mechanism, namely, the change in the features of legal regulation of relations in the field of maritime transport security at each naturally distinguished stage of its development. Based on this criterion, in the history of the formation and development of the international legal mechanism for ensuring safety in maritime transport, it is proposed to distinguish three periods: the first period from the end of the 19th century and before the adoption of the UN Convention on the Law of the Sea, the second period from the adoption of the said Convention until the beginning of the 21st century and the third period from 2000 to the present.

The international legal mechanism for ensuring maritime transport security is understood as a system of historically established, mutually complementary and interacting organizational and legal methods, means and institutions, procedural actions and operations based on certain principles, ensuring the interaction of subjects of international activities at sea in order to eliminate or minimize threats to international security in maritime transport.

The structure of this mechanism is formed by the following elements: the conditions for the existence of legal regimes in various waters of the World Ocean; normative, organizational, institutional, functional and instrumental, recognized or established by subjects of international law and methods used to eliminate or minimize these threats; a system of state and non-state bodies authorized to participate in activities to ensure safety in maritime transport (naval forces of individual states and their coalitions, private marine security companies, international organizations, etc.); legal principles of ensuring safety in maritime transport; legal institutions mediating these public relations; legal means used to ensure safety in maritime transport; the substantive and procedural status of participants in this activity; a system of procedural (procedural) rules designed to resolve economic disputes ^[22].

The results of the analysis of the current state and functioning of this international legal mechanism indicate its imperfection, expressed in the inconsistency of the norms of international and national law, their fragmentation and the gap of national norms. As well as the need to improve these standards in the light of emerging challenges and threats in our time.

Threats to international security in maritime transport can be divided into natural, man-made, and anthropogenic. At the same time, the last two types of threats may be characterized by illegality.

They come from entities that can be divided by source into state (state terrorism, military, environmental and economic threats) and non-state (piracy, terrorism, transnational crime, illegal trade, environmental pollution) ^[22].

In addition, the factors of increasing the risks of security threats in maritime transport are artifacts of human activity of previous historical periods (stocks and remnants of weapons and ammunition on the seabed, "unresolved" national conflicts in marine areas), as well as the practice of arbitrary selective application of the norms of international maritime law by individual States and interstate unions.

The study of the established doctrine of international maritime law reveals a tendency to substantiate the need to consolidate disparate legal norms into a common system of legal support for international maritime security, which is also clearly illustrated by an analysis of modern practice demonstrating the corresponding need.

Maritime safety law demonstrates the features of the institute of international maritime law, has institutional characteristics, combines material and procedural norms, and also contains a functional purpose (protective and regulatory). In modern conditions, the practice of implementing the norms forming it by the leading maritime States requires improvement.

Currently, the priority of international legal regulation of maritime transport security is to increase the effectiveness of security in ports and at relevant facilities, interaction between national government agencies, the shipping and port industries in identifying security threats and preventing incidents affecting ships in ports or port facilities themselves, as well as improving prevention and deterrence measures incidents against maritime safety, including through the expansion of the practice of attracting private marine security companies. At the same time, there is a change in the hierarchy and parameters of interaction of mandatory instruments of international legal regulation and mechanisms of self-regulation of the activities of these enterprises. This emphasis is the default priority, since it has not been officially announced, but manifests itself in this capacity, which follows from the study of the practice of international legal regulation of maritime transport safety.

The study of the established areas of maritime transport security on the example of a separate region (the Arctic) has shown that the politicization and bias of organizational and legal instruments designed to ensure a unified and indivisible architecture of international security in the Arctic region cause the inefficiency of international legal regulation in this area.

Taking into account the comprehensive knowledge of the modern international legal mechanism for ensuring maritime transport security, proposals for improving maritime transport security and legislation of the Russian Federation in the field of ensuring national security in maritime transport can be considered justified.

Thus, in connection with the discovered discrepancy between the formulations given in Articles 271, 351 and 352 of the Criminal Code of the Russian Federation (hereinafter – the Criminal Code of the Russian Federation) and Articles 101-107 of the UN Convention on the Law of the Sea, which establish the main criteria and definitions of violence at sea and piracy, it is proposed to amend these articles of the Criminal Code of the Russian Federation in the procedure for the implementation of the provisions of international maritime law into Russian legislation.

Based on the assessment of compliance of domestic legislation with the norms of international law, the following changes are proposed in the Criminal Code of the Russian Federation:

"1) the first part of Article 227 should be worded as follows:

"1. An attack on a sea or river vessel, as well as an aircraft, including an unmanned one, for the purpose of detaining and/or seizing someone else's property, committed with the use of violence or with the threat of its use, -

is punishable by imprisonment for a term of five to ten years.";

2) Article 271 should be worded as follows:

"Non-compliance with the routes, landing sites, air gates, flight altitude specified in the permit or other violation of the rules of international flights, including by unmanned aerial vehicles -

shall be punished by a fine of up to two hundred thousand rubles or in the amount of the convicted person's salary or other income for a period of up to eighteen months or by arrest for up to six months with deprivation of the right to hold certain positions or engage in certain activities for up to three years or without it.";

3) Article 351 should be worded as follows:

"Violation of the rules of flight or preparation for them or other rules of operation of military aircraft, including unmanned ones, resulting in the death of a person or other grave consequences, -

is punishable by imprisonment for up to seven years.";

4) Article 352 should be worded as follows:

"Violation of the rules of driving or operating warships, as well as unmanned marine systems, which inadvertently caused the death of a person or other grave consequences, -

is punishable by imprisonment for up to seven years.".

In general, the proposed amendments to the Criminal Code of the Russian Federation will not only bring it into line with international standards, but also ensure effective regulation and accountability for crimes related to maritime transport in the context of modern technologies.

First of all, this initiative will bring the definition of piracy contained in Article 227 of the Criminal Code of the Russian Federation in line with the provisions of the Convention. According to it, piracy is defined as any violent act committed outside the jurisdiction of a State in order to acquire illegal control over a ship or violence against its crew. The amendments to article 227 are aimed at clarifying the concept of piracy, taking into account the definitions of the Convention.

These changes are necessary to accurately define piracy and establish criteria and definitions of violence at sea, since in paragraph "a" of article 101 of the Convention, "an act of violence" should be understood as "acts of a violent nature", including in relation to ships and aircraft. The original text of the Convention in English states "acts of violence", and the Oxford English Dictionary interprets the word "violence" as "The deliberate exercise of physical force against a person, property, etc.; physically violent behavior or treatment; (Law) the unlawful exercise of physical force, intimidation by the exhibition of such force", which translates as "the deliberate use of physical force against a person, property, etc.; physically violent behavior or treatment; (in law) the illegal use of physical force, the threat of the use of such force." Thus, an act of violence can be carried out not only in relation to a person, but also to modern forms of transport and technology, and therefore requires consideration in Russian legislation.

In addition, it is proposed to amend articles 271, 351 and 352 of the Criminal Code of the Russian Federation, which regulate issues related to illegal actions in the maritime sphere. According to the provisions of the Convention, these articles should be brought into line with its articles 101-107, which establish the main criteria and definitions of violence at sea and piracy.

It is important to note that there is a discrepancy between the wording given in Russian legislation and in the Convention. Thus, the mentioned articles of the Criminal Code of the Russian Federation must be brought into line with the Convention. At the same time, it is worth noting that certain formulations in the articles of the Convention also require changes in terms of mentioning aircraft and supplementing them with the concept of "unmanned aerial vehicle". In particular, Russian legislation does not mention aircraft in the context of liability for crimes related to maritime transport. Taking into account modern requirements and the international agenda, it is necessary to clarify this issue. Clarification is also required in connection with the addition of the mention of unmanned aerial vehicles, which is associated with their increased use and importance at the international level. This is important to ensure effective counteraction to new challenges and threats in the maritime sphere, such as threats from unmanned vehicles used by pirates and other illegal groups.

Of course, bringing these articles into line with the provisions of the Convention and introducing the concept of unmanned aerial vehicles and unmanned marine systems will be beneficial, as it will effectively combat the threats of piracy in international waters and sovereign territorial waters of the Russian Federation. This will not only ensure the safety of Russian and foreign vessels at sea, but also bring Russian legislation into line with international standards. Thus, the United Nations Convention on the Law of the Sea is an important step to ensure compliance with international norms and standards in Russian legislation.

Amendments to the Criminal Code of the Russian Federation will improve the effectiveness of the fight against piracy and other illegal actions in the maritime sphere, as well as ensure the safety and protection of ships and their crews, as well as counteract new challenges and threats in the maritime sphere, such as the use of unmanned vehicles and systems by pirates and other illegal groups.

The proposed legislative correction is essential to ensure effective counteraction to new challenges and threats to maritime transport security, such as threats from unmanned aerial vehicles used by pirates and other illegal groups.

Conclusion

The organization of maritime transport safety requires consolidated efforts of the international community, primarily in the observance, implementation and development of the norms of international law governing this sphere of social interaction. The world's oceans, seas and shipping lanes can only be used effectively and legally together, while maintaining a balance of interests and values protected by international law. Maritime transport safety is an important part of ensuring the national security of the Russian Federation, since a huge amount of necessary goods is delivered only by sea ^[22].

It is worth noting that the politicization and bias of organizational and legal instruments designed to ensure a unified and indivisible architecture of international security in various regions of the world and in marine areas demonstrates their inefficiency in modern conditions of global confrontation.

The author proposes amendments to articles 271, 351 and 352 of the Criminal Code of the Russian Federation, which regulate issues related to illegal actions in the maritime sphere. These articles should be brought into line with articles 101-107 of the 1982 United Nations Convention on the Law of the Sea, which establish the basic criteria and definitions of violence at sea and piracy.

As prospects for further research on issues of international legal regulation of maritime transport security, a more detailed description and classification of threats to maritime transport security can be identified, taking into account the development of weapons of mass destruction, the development of unmanned aerial and marine systems, the spread of diseases that pose a danger to others using maritime transport and others.

The issues of further implementation of the norms of international law in the field of maritime transport safety into domestic legislation also look relevant, which requires separate extensive theoretical, legal and empirical research.