Sea Control - Sea Control 507 - Islamic Maritime Law with Emilia Justyna Powell & Michael Atkins

Episode Date: April 4, 2024

Links:1. Islamic Law and International Law: Peaceful Resolution of Disputes, by Emilia Justyna Powell, Oxford University Press, 20222. The Peaceful Resolution of Territorial & Maritime Disputes, by Emilia Justyna Powell and Krista E. Wiegand, Oxford University Press, 20233. "Ghosts of Kosovo: A Test for International Criminal Law in the Balkans", by Michael Atkins, The Willamette Journal of International Law and Dispute Resolution, January 20224. "Regulations Usher in Era of Cleaner Emissions at Sea", by Michael Atkins, American Bar Association, Environmental Enforcement and Crimes, April 20,20225. Sea Control 461 - Peaceful Resolution of Territorial and Maritime Disputes with Dr. Emilia Justyna Powell and Dr. Krista Wiegand, by Nathan Miller, CIMSEC, September 10, 2023

Hey folks, it's Jared. This is Nate Miller's final episode hosting and producing for us, and he has Amelia Justina Powell returning to the podcast alongside Michael Atkins to discuss Islamic maritime law. Here at SimSec, we aim to further international maritime security through an exchange of ideas and the rigor of critical thought and writing. If you haven't already, please check out SimSec.org for new articles on the most important maritime topics. If you'd like to contribute to the discussion, check out the Write for SimSec tab to learn how you can submit articles for publication. And now, Kimbersman. You're listening to Sea Control, hosted by the Center for International Maritime Security.

Hello and welcome aboard the Sea Control podcast. I'm Nathan Miller. My guests today are Dr. Amelia Eusina-Powell and Lieutenant Commander Michael Atkins of U.S. Coast Guard. We're discussing their ongoing research and previous publications on Islamic maritime law and how it interacts with the International Maritime Organization. Amelia, Michael, welcome aboard. And Amelia, welcome back. This is your second time on the podcast. If listeners haven't heard previously, it is episode 461. She's talking about conflict resolution and territorial disputes. Really, really good lesson. I highly recommend it. So Amelia, could you please remind the listeners a little bit of your background. Thank you very much, Nathan, for having Michael and me

here on the podcast. My background, I am a professor of political science and a concurrent professor of law at the University of Notre Dame. And my research focuses on international law, including maritime law and maritime regime i study also peaceful resolution of disputes including maritime disputes and territorial disputes and i also do a lot of writing about the islamic legal tradition and constitutionalism michael uh same question for you can you please start out by telling listeners a little bit about your background sure thing nathan and i just start by saying it's great to chat and to meet you virtually here. I'm a lieutenant commander in the Coast Guard. I was a ship inspector for several years and then went to

Notre Dame for law school, and currently I'm a JAG officer, and I'm stationed at our District 8 legal office down in New Orleans. Thank you, and as a reminder to our listeners, All opinions expressed here are strictly our own and not reflective of any of the institutions with which we might be otherwise associated. So, Amelia, to start us off, could you please give our listeners a little bit of foundational understanding of the dynamics of this space, who the players are? And I guess I'm thinking specifically of the International Maritime Organization and the Islamic law states. Yes. So I'm going to first start with the group of states that I call Islamic law states. So this is a category of 29 countries, so according to international law states, whose legal system, a large portion of their legal system is influenced by the Islamic legal tradition, and where Muslims constitute at least 50% of the population. So really, this is a group of countries that not only have populations with large Muslim percentages, but that have legal system, including constitutions and sub-constitutional legal systems, such as legislation, influenced by the Islamic legal tradition.

And the reason that I introduced this category to the scholarship is that Islamic tradition is expressed very differently across time and space. So different Islamic law states, let's say Malaysia or the Kingdom of Saudi Arabia, United Arab Emirates, Kuwait, and so on, they express Islamic law differently. and so some of them are more secular than others and they have a different way of thinking and conceptualizing islamic law and this group is like i said 29 countries and they can be in the gulf the levant in asia africa or oceania so the point of this group is that it captures diversity And most of the time when people think about, let's say, a Muslim-majority country, they think about the Gulf. But the truth is there's many more of those countries. So moving on into the other major player in our research, the International Maritime Organization.

So just a brief introduction here, because our question and our interest here is how this group of countries, Islamic law states, we call them ILS for short, how do they view this maritime organization, IMO? So IMO is a specialized agency of the United Nations that really is focused on standards related to safety and security of shipping and the prevention of pollution by ships. So it covers a very specialized area of international law, which is maritime activities by the seafarers and the ships. And out of interest, it is the only UN agency, specialized agency, that's located in the United Kingdom. Some of the things that IMO deals with is producing conventions, agreements that cover a variety of things that matter to ships and seafaring. So it would be engineering and electrical design, deckside operation requirements, security

measures for ships and port facilities, and then prevention of all and other pollution and so much more. So countries can become part of IMO. And right now, IMO is really quite popular, I would say. It has 175 member states. And the states kind of get together there on this forum and make decisions that deal, for instance, with issues such as standards of training and certification of seafarers, safety of life and sea. So there's a variety of things. And I would say that these objectives of IMO can be summed up by its slogan, which says, safe, secure, and efficient shipping on clean oceans. And perhaps Mike would like to add something. I mean, he knows the practice of IMO quite well. Yeah, I think that was a great summary. I think, you know, one thing to point

out is you can really trace the beginnings of the IMO all the way back to the Titanic, you know, the sinking of the Titanic, which everybody knows about, and sort of the recognition on the international stage that not only do we need better ice patrols and sort of forewarning of hazards to navigation and dangers at sea, but also we need more standards. We need more rules and regulations as far as ships are built from the laying of the keel on up. We need, you know, it's kind of a wonderful example of the international community getting together and recognizing problem that's fixable.

And, you know, if you look at the statistics, the marine casualties since the inception of the IMO have just gone down and down and down and shipping as it's become more and more important to the international economy and the, you know, shipment delivery of goods and that supply chain. And as that's become more and more important, the safety factor has only increased, and due in large part to the work of the IMO. So, Amelia, you mentioned in your most recent work that there's an assumption of the West that Islamic law and international law don't necessarily align. Why do you see things differently, and I guess in particular in the context of the IMO? Thank you for this question, Nathan. The question that you're asking is actually the major reason why I embarked onto this part of my research on the Islamic legal tradition, because in the scholarship and really in mass media, there's this perception that Islamic law is always incongruent with international law across the board. There are, of course, some exceptions to this. Some people may be aware what's going on, but it's this expectation and assumption that Islamic law is always on one really far end of the spectrum. International law is somewhere on the completely opposite spectrum and they never align. And that's just false. And if you take this belief, this assumption, together with the lack of knowledge that there is variance in those Islamic law states, like I said, the ILS group, you would think that the 29 states that I call Islamic law states never participate in international law.

Why? Well, because they're just different. They dislike it. And it's false. The reason that Mike and I have focused on maritime law, and I have done it in the past also by myself, is that maritime law and law of the sea, even more broadly, constitute an area where Islamic law has historically been largely congruent. And in fact, it has been a predecessor of some of the norms that we consider as fundamental to law of the sea and maritime law. So, in fact, the Islamic world has given us very important thoughts about maritime law. Just to give a brief example, long before the West thought about Europe specifically, about how to divide the sea, Islamic rulers and scholars thought about high sea,

thought about belts that were adjacent to lands governed by Muslim rulers, and kind of thought about sovereignty over those categories. And in fact, Islamic law has been fundamental in introducing the concept of freedom of navigation, freedom of the seas, in time where Europe was still kind of thinking about closed Mediterranean Sea. So it's an area that really shows high Now, I'm saying all this recognizing that there are areas clearly in international law that are incongruent with beliefs and tenets of Islamic law. But I think the point is that we cannot make a general sweeping statement that Islamic law, international law are always incongruent. Instead, we have to look at substantive areas where they might align or where they have points of convergence. And maritime law is one of the points of convergence. So, Michael, kind of on that same note, what are some of those contributions that the ILS have had and where are those points of convergence as you see?

Like Professor Powell said, we really see that ILSs or Islamic law states, they're major players at the IMO. They're at the table with Western powers when big decisions are being made. They are negotiating and brokering agreements on substantive issues that relate to maritime law and, of course, international shipping. And I'll give you just, you know, a couple, throw out a couple numbers here. You know, of that category of ILSs, nine ILS members have ratified 30 or more instruments at the IMO. And each ILS, on average, has ratified over 25 treaties drafted by the IMO. So there's sort of quantitative empirical data you can look at to see just how engaged those ILSs are at the IMO. And then we see some interesting manifestations of that. We see active engagement even between putative adversaries in other international contexts.

And our research shows that what fosters that engagement is, of course, the shared conceptual approaches to maritime issues that Professor Powell mentioned. but also the largely apolitical, agnostic, technical nature of the regulations and the issues at the forefront of the IMO. And more direct to your question, I'll give you one point of reference. The UAE, just in the last couple years, led an effort to overhaul the rules of procedure at the IMO. I'll give a little bit of background here. The IMO has a general assembly and this is where, where delegates, delegations come together every two years. And it's, I've actually been there and toured, toured the, toured the IMO there on the, there in London. It's just how you would expect a UN legislative body to, to, to look. I mean, delegations are

there with the name of the country, you know, in front of them and the translator headphones at each table. But then the work, a lot of the work is done by the executive arm, which is the IMO council. And that has elected members. And then, of course, there's a series of committees and subcommittees. But the UAE really led this push to harmonize rules across those different bodies and to bring the IMO in line with sort of modern parliamentary norms. And the UAE and other ILSs were instrumental in reshaping how the council is constituted, broadening membership up from 40 members up to 52. So there's sort of procedural contributions you can look at, but also, you know, in our research, we looked at substantive

contributions. ILSs in recent years have signed on to instruments that deal with labor rights, for instance. A number of ILSs in recent years have ratified the Maritime Labor Convention. And that's just a couple of specific examples. But generally, up and down, when you look at at the IMO conventions and protocols, you see time and again, ILS members in the mix. How do you see their interaction with the IMO moving forward? Is it trending more toward more and more engagement? Or is it kind of staying level? How do you see it moving forward? Yeah, it's a good question, Nathan. You know, the IMO officials we spoke with really emphasize the the upward trend and trajectory of of ILS influence at the IMO and you know if you

look at the the most recent council elections from from 2023 of the states that were elected seven were ILSs and we we talked to representatives from some of those states and and being a you You know, election to that council is hugely important to those delegates and representatives as well as back home. You know, there's garners a lot of news coverage in these countries as well. But, you know, looking forward, there's there's some hot button issues that that those countries, you know, of course, will be will be contending with. There's greenhouse gas emissions from ships. There's been a multi-year rollout of rules that's ongoing. And this applies to shipboard equipment, to tracking and monitoring and other measures to reduce and with the ultimate goal of eliminating GHG emissions from the global shipping fleet. Another area I'll mention is autonomous vessels. That's an emerging area of interest and in some ways of concern, how that technology affects traditional legacy rules on navigation and watchkeeping and sort of manning of vessels, keeping a lookout, for example.

How does that look on an autonomous vessel? And the IMO has moved forward with rules on autonomous ships, and I think we'll see more of that in the future. And of course, ILSs, the Islamic Law States, are going to be involved as those regulations are developed. And I'll just mention one big issue, a topical issue that is in the news now is safe, unfettered passage of merchant ships in the Red Sea. That's an issue we've seen in the news here recently with attacks and piracy along that important shipping lane and international pressure to keep those lanes open and free from attack. And you see ILS is really at the forefront and front and center tackling that issue because those shipping lanes are extremely important to those countries in the region. So those are a couple of areas where looking forward, I think we'll see more and more ILS influence and engagement at the IMO and sort of international maritime law generally. All right. So, Amelia, how many of your ILS states that you've identified have ratified UNCLOS? Is that something that is difficult for them to square? So actually, I did research on this very topic, Nathan. So thank you for this question. It was really puzzling to me that in fact, Islamic law states that are considered by many traditionally skeptical towards international multilateral treaties are actually quite active in UNCLOS, in the UNCLOS convention. So when I wrote the paper, and perhaps it has changed right now, but I show that 22 Islamic law states out of 29 have actually ratified the UNCLOS convention.

And when I conducted statistical analyses comparing Islamic law states to other legal traditions, such as common law and civil law, they were on par. so we can extend this kind of enthusiasm of islamic law states towards the sea i would say beyond maritime activities and go to the more fundamental doctrinal conceptualization of the law of the sea they're just largely accepted and i would say that one of the reasons is of course the fact that Islamic law of the sea has traditionally and historically aligned with our modern conceptualization of law of the sea as expressed in UNCLOS. And UNCLOS also offers a very interesting dispute resolution mechanisms where states can choose in cases that they have a dispute over interpretation of the treaty, they can choose how they want to settle it.

I would say the UNCLOS prioritizes settlement, period. It gives states those wide choices, including non-confrontational dispute resolution, such as mediation and conciliation, that aligns with traditional Islamic law approach to dispute resolution. So we have this kind of convergence, and enthusiasm towards not only maritime law and its execution as done in the IMO, but also towards UNCLOS. Are there any other thoughts or things that you want to leave the listeners with? Yeah, I would just say this is or could represent really a testament to international cooperation and comedy across cultures and across religions and i i think you know as we've touched on a little bit um there's some some obvious reasons why the maritime

community is maybe favorable favorable venue for or forum for that um there's strong economic interests there's geography and these these important shipping lanes there's some of that convergence that the professor was mentioning about sort of legal conceptions and theories that dovetail through history. But I think perhaps, and this was borne out in the interviews that we did, the most salient factor here is the willingness at an interpersonal level to reach across those chasms to work together and to find common ground and i would just just um as a final point say that uh we hope that that this that shining a light on this could lead to more discourse on the topic and perhaps more cooperation uh in other areas and i i would like to add to

what mike said is that it's a reason for optimism that we again going back to this misperception number one of islamic law states that they're all the same there's no variance and the other misperception that islamic law is so different from international law this shows that actually um number one uh there are areas of international law that islamic law states actually are excited to cooperate, and number two, they're leaders. Because as Michael mentioned, these states have been actually major players in the IMO, all the different forms of IMO, proposing changes and supporting those changes. Our experiences interviewing IMO representatives from islamic law states they were very enthusiastic about cooperation and when we would ask do they

feel maybe as a special case of members because let's say of islamic legal tradition that never came up they were very supportive very happy to change the organization and kind of work to make the goals of IMO come true. And I think this is an example of successful international cooperation that we just don't see on the news. It seems that the news only shows us the negative outcomes of, let's say, friction between the Islamic legal tradition or international law. But the truth is that there are areas in which cooperation is not only possible, but actually very successful and efficient well i am so sorry to say that's all the time that we have for today but i would like to thank my guest dr amelia justina powell and lieutenant commander

michael atkins amelia where can our listeners find you online and what are you working on next so the listeners can find me on my website amelia powell.com and my next project other than the extensive project I have with Michael is on the emergence of maritime regime. I want to see how different parts of the world conceptualize the sea since many, many centuries, and how those different understandings amalgamated together to produce what we know now as international law of the sea regime. And Michael, what are you working on next? Yes, I've got a hand in a couple different research projects, looking at certain regulatory issues here, you know, domestically, but also potentially doing, you know, expanding our

research into the IMO and identifying more trends there. well thank you again both of you for joining us and to the listeners we'll see you next time Thank you. We'll be right back.