Developments in Port State Jurisdiction

Erik Jaap Molenaar*

Netherlands Institute for the Law of the Sea (NILOS), Utrecht University

Law of the Sea SymposiumLondon, 22-23 March 2005

Version of 17 March 2005: Do not cite

Contents1. Introduction 12. Port State Jurisdiction under General International Law 23. Broadening Scope34. Broadening Rights 5

4.1. Legislative Jurisdiction 64.2. Enforcement Jurisdiction 8

5. Towards Mandatory Port State Control and Global Coverage 96. Conclusions 12

1. Introduction

Just like land borders, (sea)ports give access to the landmass of a State for persons and goods and are for that reason obvious points of control for the purpose of, inter alia, immigration, sanitation, customs and national security. Ports are also the logical choice for verifying whether visiting ships comply with certain types of national or international standards or if they have engaged in certain types of behavior in the port (coastal) State’s own maritime zones and in the maritime zones of other States or on the high seas. Port State jurisdiction (control) therefore does not just serve the immediate national interest but also offers opportunities to further the interests of the international community, for instance on ensuring safety at sea (maritime safety), marine environmental protection and sustainable utilization of marine living resources, safeguarding marine biodiversity and combating international terrorism. Furthering the interests of the international community will or should benefit the national interests of a port State in various ways. For instance, illegal, unreported or unregulated (IUU) fishing on the high seas could target straddling or highly migratory fish stocks or affect associated and dependent species that (also) occur in that port State’s maritime zones.

International law can stipulate that port State jurisdiction, whether in the form of legislation or enforcement, is facultative or mandatory. While both can benefit the aforementioned interests of the international community, a mandatory component will often be essential for avoiding distortion of competition in maritime activities and thereby so-called ‘ports of convenience’. In the sphere of merchant shipping, ports of convenience carry out no or less vigorous inspections of International Maritime Organization (IMO) and International Labor Organization (ILO) standards and thereby attract the business of substandard vessels. These load and unload cargo and use port services such as refueling, and re-supplying. In the sphere of marine capture fisheries, ports of convenience are used to land or transship IUU catch as well as for using port services.

* Email: E.Molenaar@law.uu.nl.

2Erik Jaap Molenaar

While there are no definitions of ‘port State’ or ‘coastal State’ in the LOS Convention1 or another global instrument with (near) universal participation, this paper will use ‘port State’ in a broad sense, encompassing jurisdiction exercised in relation to its own maritime zones (in its capacity as flag State) as well as in relation to the high seas and the maritime zones of other coastal States. The international law perspective of this paper implies that port State jurisdiction concerns first of all foreign vessels. However, domestic vessels are assumed to be subject to legislative and enforcement jurisdiction by their flag State in a way that does not amount to unjustifiable discrimination between foreign vessels and between domestic and foreign vessels.

This paper examines recent developments in port State jurisdiction on the abovementioned issues. The paper sets out with a succinct examination of the scope and extent of port State jurisdiction under current general international law. The next three sections discuss the gradual shift towards a broadening of the scope and the rights of port State jurisdiction as well as towards mandatory port State jurisdiction and global coverage. The paper ends with some conclusions.

2. Port State Jurisdiction under General International Law

As a port lies wholly within a State’s territory and falls on that account under its territorial sovereignty, general international law acknowledges that a State has wide discretion in exercising jurisdiction over its ports. This is, inter alia, confirmed by Article 25(2) of the LOS Convention. This allows a port State to deny foreign vessels access to its port and also, less intrusively, to set conditions for access. Foreign vessels therefore have no right of access to ports under general international law. Widely acknowledged exceptions to this general rule are ships in distress or in force majeure situations. Even in these cases, however, the specific circumstances may be such that the (environmental) interests of the port State override those of the ship.

The fact that wide discretion of port States under general international law is not really contested has several important implications. First, as port State (legislative) jurisdiction is presumed to exist, an explicit treaty basis is in most cases unnecessary. An important exception relates to behavior that has occurred beyond the port State’s own maritime zones, for instance IUU fishing or illegal discharges. Using port State jurisdiction for such types of violations is a form of extra-territorial jurisdiction. This may still be justifiable when, for instance, an explicit treaty basis can be invoked2 or where the standards are agreed to multilaterally and the enforcement action is not punitive or corrective.3

Second, the choice for the word “discretion” already indicates that general international law subjects port State jurisdiction to certain limits or obligations, for instance the notion of abuse of rights.4 These limits or obligations may also arise as a consequence of adherence to treaties. The most important example is the 1994 General Agreement on Tariffs and Trade (GATT 1994), which inter alia lays down the freedom of transit and the prohibition of quantitative restrictions.5 These two provisions were invoked by the European Community (EC) when it instituted a World Trade Organization (WTO) dispute settlement procedure against Chile in 2000 in relation to Chile’s prohibition of landing swordfish by Spanish fishing vessels in Chilean ports. The large number of States that reserved their third-party rights in this procedure bears witness to the significance of the issues and interests involved.6

1 United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982. In force 16 November 1994, 1833 United Nations Treaty Series 396; <www.un.org/Depts/los>.

2 See Art. 218 of the LOS Convention.3 For a fuller discussion see Section 4.4 See e.g. Art. 300 of the LOS Convention.5 See Arts V(3) and XI.6 These were: Australia, Canada, Ecuador, India, Norway, Iceland and the United States.

3 Developments in Port State Jurisdiction

Shortly thereafter, Chile instituted a dispute settlement procedure against the EC under the LOS Convention.7 As both proceedings were suspended in 2001, the uncertainty as to the impact of international trade law on the discretion of port States under the international law of the sea remains in place. It should nevertheless be pointed out that while the principle of non-discrimination is a cornerstone of international trade law, it is by no means absent in the international law of the sea, international fisheries law, IMO instruments or regional merchant shipping port State control (PSC) regimes.8

3. Broadening Scope

Port State jurisdiction is likely to have been used for many centuries for the purpose of immigration, sanitation, customs and national security. Early attempts to conserve and manage marine living resources at the international level may have had a component of port State jurisdiction as well. Within the sphere of the international law of the sea, port State jurisdiction became gradually more and more widely known as a remedy to the failure of flag States to exercise effective jurisdiction and control over their ships.9 A milestone was the adoption of the Paris MOU,10 through which participating Maritime Authorities harmonized and coordinated port State control procedures, inter alia by means of a commitment to inspect a certain minimum percentage of all merchant ships visiting their ports.11

Initially, the inspections under the Paris MOU were predominantly focused on the construction, design, equipment and manning (CDEM) standards that were adopted at the international level within the International Maritime Organization (IMO). Although many of these standards are aimed at ensuring maritime safety as well as marine environmental protection, inspections were mainly carried out with the former objective in mind. Gradually, however, efforts were directed at enforcement of discharge violations, navigation standards12

and the standards on working and living conditions developed by the ILO.In the early and mid 1990s, standard setting within IMO focused on the so-called ‘human

element’ in merchant shipping. This led to operational standards, which ensure that the crew is able to fulfill specific tasks on board, as well as to efforts to improve safety and quality of management in merchant shipping, which culminated in the ISM Code13. One of the most recent expansions of standard setting within the IMO relates to maritime security. This has

7 Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile v. European Community).

8 See e.g. Arts 24(1)(b), 25(3) 119(3) and 227 of the LOS Convention, para. 52 of the IPOA on IUU Fishing (International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing. Adopted by consensus by FAO’s Committee on Fisheries on 2 March 2001 and endorsed by the FAO Council on 23 June 2001; text available at <www.fao.org/fi>), Art. 5(4) of MARPOL 73/78 (International Convention for the Prevention of Pollution from Ships, London, 2 November 1973, as modified by the 1978 Protocol (London, 1 June 1978) and as regularly amended. Entry into force varies for each Annex. At the time of writing Annexes I-V were in force and Annex VI was set to enter into force on 19 May 2005; Art. 5(4) contains the no-more-favorable-treatment (NMFT) clause, which has similarities with the principle of non-discrimination) and Section 1.2 of the Paris MOU (Memorandum of Understanding on Port State Control, Paris, 26 January 1982. In effect 1 July 1982, as regularly amended. Updated version at <www.parismou.org>).

9 This notwithstanding, port State jurisdiction if often diplomatically referred to as a “subsidiary” means of control.

10 See note Error: Reference source not found.11 See Section 1.3 of the Paris MOU.12 In particular Rule 10 of COLREG 72 (Convention on the International Regulations for Preventing

Collisions at Sea, London, 20 October 1972. In force 15 July 1977, as regularly amended).13 International Management Code for the Safe Operation of Ships and for Pollution Prevention.

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led to a new Chapter XI-2 to SOLAS 7414 and the ISPS Code,15 Part A of which is mandatory. All these expansions had a port State jurisdiction component,16 which led in turn to a broadening of the inspection regime in the Paris MOU.

It is not altogether clear at what time port State jurisdiction was first introduced at the international level. An early reference to (facultative) port State control is contained in the 1989 Wellington Convention.17 It features prominently in the Fish Stocks Agreement18 and many of the main regional fisheries management organizations (RFMOs) currently have some form of port State jurisdiction, even though significant differences exist (see Section 5).

While this short overview is incomplete, it serves to illustrate that port State jurisdiction has become increasingly complex. This is not just a consequence of the updating of relevant international instruments but also of their continuous expansion into related or entirely new subject areas.19 Not only have the duration and complexity of inspections in general increased, this is also likely to be true for the frequency of multiple inspections and the involvement of multiple national inspection authorities. While integrated forms of in-port inspections may be used in some port States, many probably still have consecutive and uncoordinated inspections by officials from different authorities relating to, for instance, maritime safety, (marine) environment, maritime security, living and working conditions and fisheries in addition to immigration, customs and sanitation.20

While a merchant vessel does not need a fisheries inspection, a fishing vessel does often need many of the inspections that are also used for merchant ships. However, many fishing vessels are not subject to SOLAS 74 as a consequence of their size. The IMO instruments developed to remedy that situation had still not entered into force at the time of writing.21

The increasing workload and complexity of inspections and the higher frequency of multiple inspections could to some extent be addressed by increased coordination at the national, regional and inter-regional levels as well as by agreements on maximum numbers of inspections at the regional and inter-regional levels. A higher level of coordination or integration in inspections also offers opportunities, for instance because many substandard ships perform insufficiently in more than one subject area. For example, vessels engaged in IUU fishing activities may have a relatively poor performance in standards on living and working conditions, maritime safety and marine environmental protection. Moreover, substandard manning standards and living and working conditions tend to undermine maritime safety and marine environmental protection.22 Sharing databases between inspection

14 International Convention for the Safety of Life at Sea, London, 1 November 1974. In force 25 May 1980, with protocols and regularly amended. The text of chapter XI-2 is contained in IMO Doc. SOLAS/CONF.5/32, of 12 December 2002.

15 International Ship and Port Facility Security Code (IMO Doc. SOLAS/CONF.5/34, of 17 December 2002).

16 See inter alia Regulation XI-2/9 of SOLAS 74.17 Convention for the Prohibition of Fishing with Long Drift-nets in the South Pacific, Wellington, 23

November 1989. In force 17 May 1991, 29 International Legal Materials 1449 (1990); <www.oceanlaw.net>. See Art. 3(2)(d).

18 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, 4 August 1995. In force 11 December 2001, 34 International Legal Materials 1542 (1995); <www.un.org/Depts/los>. See Art. 23.

19 This is partly recognized by the Joint Ministerial Declaration issued at the Second Joint Ministerial Conference of the Paris and Tokyo Memoranda of Understanding on Port State Control, Vancouver, 4 November 2004, at p. 17, para. 7.1 (text at <www.parismou.org>).

20 See the 2004 Vancouver Declaration, note Error: Reference source not found, at p. 39, action 6.21 These are the International Convention for the Safety of Fishing Vessels (Torremolinos, 2 April 1977),

its 1993 Protocol and the STCW-F (International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel (London, 7 July 1995).

22 See the 2004 Vancouver Declaration, note Error: Reference source not found, at p. 7, paras 2.13 and 2.14.

5 Developments in Port State Jurisdiction

authorities at the national, regional and inter-regional level is one way in which coordination and integration can be achieved.

Whereas cooperation between IMO and ILO on port State control is firmly established and has culminated in useful outcomes,23 the cooperation between IMO and the Food and Agriculture Organization (FAO) could be strengthened. The First Meeting of the Joint FAO/IMO Ad Hoc Working Group on Illegal, Unreported and Unregulated Fishing and Related Matters, which took place in Rome in October 2000, did not prove to be very successful. The main reason for this was the unwillingness of the States representing the IMO to consider port State control over fishing vessels for a purpose other than strict conservation and management of marine living resources, as this would encroach on IMO’s competence.

4. Broadening Rights

Support for the view that the powers of port States are gradually expanding can be found in Article 218 of the LOS Convention in relation to vessel-source pollution. Article 218 authorizes port State enforcement jurisdiction, and thereby implicitly legislative jurisdiction, over illegal discharges that have occurred beyond the port (coastal) State’s own maritime zones. This competence is subject to the safeguards in Section 7 of Part XII of the LOS Convention, in particular Article 228. Despite the near-universal status of participation in the LOS Convention,24 the extra-territorial jurisdiction granted by Article 218 is in principle only available as between parties to the LOS Convention and cannot be presumed to be part of customary international law. This is reinforced by the fact that, so far, only a few States seem to have explicitly incorporated Article 218 in part or in its entirety in their legislation.25 It is moreover unclear whether there have already been actual cases of enforcement and, most important for the issue of customary status, whether these cases involved non-parties to the LOS Convention. Proposed EU legislation could be an important step in the transition of the powers under Article 218 into customary international law.26

In the sphere of international fisheries law, reference can be made to Article 23 of the Fish Stocks Agreement. This provision acknowledges in paragraph (1) that a port State “has the right and the duty” to take certain measures in its ports. These measures are the inspection of documents, fishing gear and catch and, when it has been established that the catch was ‘illegal’ (or IUU), to prohibit landings and transshipments (paragraphs (2) and (3)). The inclusion of paragraph (4), which reads “Nothing in this article affects the exercise by States of their sovereignty over ports in their territory in accordance with international law”, indicates that some States held the view that the right to take the abovementioned measures merely confirms the discretion that port States already have under general international law. This view is supported by the fact that States participating within several RFMOs have already bound themselves to taking similar port State measures against foreign vessels,

23 E.g. the Joint IMO/ILO Code of practice on security in ports, Geneva, 2003 (Doc. MESSHP/2003/14).24 As per 1 February 2005, there were 148 parties to the LOS Convention (info at

<www.un.org/Depts/los>).25 For some examples of legislation see: E.J. Molenaar, Coastal State Jurisdiction over Vessel-Source

Pollution (The Hague/Boston/London, Kluwer Law International, 1998), at pp. 109-110. Recent amendments of the Prevention of Pollution from Ships Act of the Netherlands (Wet voorkoming verontreiniging door schepen, of 14 December 1983, Staatsblad 683 (1983)) allow enforcement based on Art. 218 of the LOS Convention (Act of 20 January 2005, Staatsblad 49 (2005), not in force at time of writing; see Art. 5(3)(b)).

26 COM(2003) 92 final, of 5 March 2003, Proposal for a Directive of the European Parliament and of the Council on ship-source pollution and on the introduction of sanctions, including criminal sanctions, for pollution offences. See in particular Arts 3(1)(e), 3(2) and 4. See also COM(2003) 227 final, 2 May 2003, Proposal for a Council framework Decision to strengthen the criminal law framework for the enforcement of the law against ship source pollution

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whether or not such vessels fly the flag of a party to the Fish Stocks Agreement or of a member of that RFMO.

Articles 218 and 228 of the LOS Convention and Article 23 of the Fish Stocks Agreement reveal the close relationship between legislation and enforcement. The discussion on what is perceived to be a gradual broadening of port State jurisdiction benefits by distinguishing between the two. This is done in the next two subsections.

Finally, it should be repeated here that the problem of ports of convenience is likely to persist when port State jurisdiction remains exclusively facultative. Even exercising jurisdiction to the fullest extent permissible under international law or venturing beyond the limits will suffer from the problems of effectiveness that are normally associated with unilateralism.

4.1. Legislative Jurisdiction

As regards the legislative jurisdiction of a port State, a distinction should be made between the essentially static CDEM standards that foreign vessels have to comply with at the time of entry into port on the one hand and behavior that has occurred before entry on the other hand.

Provided it does not amount to an abuse of rights or discrimination, a port State is essentially free to set whatever reasonable CDEM standards it sees fit as a condition for entry into port. By becoming a party to an IMO instrument, port States do not lose their so-called ‘residual’ jurisdiction. This view is supported by the texts of the IMO instruments27 and by limited but significant state practice, including the 1990 Oil Pollution Act (OPA) of the United States,28 the 1996 Stockholm Agreement29 and, more recently, EU Regulation No 417/2002.30 The latter was amended in 2003 to allow for transport from or to EU ports of heavy grades of oil in single-hull oil tankers. As the EU was prepared to go unilateral and exercise its residual jurisdiction as a port State, Annex I to MARPOL 73/78 was eventually amended to remove the main inconsistencies with the EU Regulation.31

Port States also have some discretion to set conditions for the departure from ports as a condition for entry. This so-called ‘departure State jurisdiction’ can for example be used to ensure mandatory disposal of all types of waste in port to ensure that these will not be illegally discharged after departure.32 This form of jurisdiction would be especially helpful in

27 See Molenaar, note Error: Reference source not found, at pp. 110-119 and inter alia the confirmation of residual port State jurisdiction in ISPS Code, note Error: Reference source not found, at para. B/4.34.

28 Oil Pollution Act of 1990, Pub. L. No. 101-380, 104 Stat. 484 (1990), in 33 U.S.C. §§ 2701-2761, 46 U.S.C. §§ 3701-3718. Note that the US has opted out from the 1992 MARPOL 73/78 (double hull) amendments by notifying on 23 December 1992 that, in accordance with Art. 16(2)(f)(ii) MARPOL 73/78, entry into force would only be possible after express approval by the US Government (Status of IMO Conventions 1994, p. 49).

29 Agreement concerning Specific Stability Requirements for Ro-Ro Passenger Ships Undertaking Regular Scheduled International Voyages Between or to or from Designated Ports in North West Europe and the Baltic Sea, Stockholm 28 February 1996. In force 1 April 1997, IMO Doc. Circular Letter No. 1891, of 29 April 1996. Check this

30 Regulation (EC) No 417/2002, of 18 February 2002 on the accelerated phasing-in of double hull or equivalent design requirements for single hull oil tankers, as amended by Regulation (EC) No 1726/2003 of 22 July 2003 (consolidated version at <europe.eu.int/eur-lex>). See Art. 1.

31 These amendments are included in IMO Doc. MEPC 50/3, 8 December 2003. Note that whereas the amendments to Annex I entered into force on 5 April 2005, the amended EU Regulation already entered into force on 21 October 2003 (OJ L.249/1). See also V. Frank, “Consequences of the Prestige sinking for European and International Law”, International Journal of Marine and Coastal Law (forthcoming in 2005).

32 This approach is inter alia pursued in Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues (OJ 2000 L 332/81). See in particular Art. 7.

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relation to ships departing for Antarctica, where normal coastal or port State jurisdiction is not possible.33

It is submitted that port State legislative jurisdiction that relates to behavior prior to entry is fundamentally different from static CDEM standards. Port States can still rely on territorial jurisdiction in case the behavior took place within its internal waters, archipelagic waters or territorial sea. For behavior that took place beyond these maritime zones, jurisdiction requires an explicit legal basis contained in a treaty34 or must be based on a sufficient close connection in the form of a jurisdictional principle recognized by general international law. In view of this latter option and the continuing controversy as to the scope and extent of port State jurisdiction under current general international law, the abovementioned distinction is not necessarily consistently maintained in State practice. For example, it can be argued that the Chilean rules for entry into port that were the subject of the Swordfish case before the International Tribunal for the Law of the Sea (ITLOS) were unilateral and thereby not covered by Article 23 of the Fish Stocks Agreement and consequently inconsistent with inter alia Articles 87 and 89 of the LOS Convention.35 A ruling by the ITLOS would provide clarity on this issue.36

Another interesting example of State practice relates to port States requiring the provision of satellite-based vessel monitoring system (VMS) data as a condition for entry into port. This data allows the port State to verify whether a fishing vessel has engaged in fishing activities within its own maritime zones, those of other States or on the high seas in a way that is inconsistent with national or international regulation. It could be argued that requiring foreign vessels to have their VMS in operation on the high seas amounts to regulating behavior and that an explicit treaty basis is therefore needed.37 Admittedly, however, this nuanced position is likely to be ignored by many States, especially those that advocate practically unlimited port State jurisdiction. This nuanced position is at any rate quickly becoming superfluous due to growing support for such practice at the international level. Examples are CCAMLR38 Conservation Measure 10-05 (2004),39 which inter alia justifies the practice of South Africa40 and the United States,41 and, more recently, the FAO Model Port Scheme42.

33 See F. Orrego Vicuña “Port State Jurisdiction in Antarctica: A New Approach to Inspection, Control and Enforcement” in D. Vidas (ed.) Implementing the Environmental Protection Regime for the Antarctic (Dordrecht/Boston/London, Kluwer Academic Publishers: 2000) 45-69. See also Doc. ATCM XXI/WP/22 (1997) ‘Enhancing Compliance with the Protocol: Departure State Jurisdiction (United Kingdom)’.

34 Inter alia Arts 218 and 220(1) of the LOS Convention and Art. 23 of the Fish Stocks Agreement.35 See ITLOS Order 2000/3, of 20 December 2000, at p. 3.36 See ITLOS Order 2003/2, of 16 December 2003, by which the dispute settlement procedure was

suspended for a further two years.37 Cf. E.J. Molenaar and M. Tsamenyi, Satellite Based Vessel Monitoring Systems (VMSs) for Fisheries

Management – International Legal Aspects and Developments in State Practice, FAO Legal Paper Online #7, available at <www.fao.org/legal> (April 2000), at p. 29.

38 Commission for the Conservation of Antarctic Marine Living Resources, established by the CCAMLR Convention (Convention on the Conservation of Antarctic Marine Living Resources, Canberra, 20 May 1980. In force 7 April 1982, 19 International Legal Materials 837 (1980); <www.ccamlr.org>).

39 Catch Documentation Scheme for Dissostichus spp. See para. 14.40 Regulation R. 1111 of 2 September 1998 under the Marine Living Resources Act (No. 18 of 27 May 1998,

Government Gazette, No. 18930; text at <www.info.gov.za>). Check this.41 Even in case United States officials receive VMS data that is based on polling in greater than four-hour

intervals for vessels fishing in the CCAMLR Convention Area or on the high seas, shipments of toothfish from these vessels will be denied entry into the United States (CCAMLR COMM CIRC 04/83, of 14 September 2004). See in this regard paras 1, 6 and 7 of CCAMLR Conservation Measure 10-04 (2004), Automated satellite-linked Vessel Monitoring Systems (VMS), which explicitly limit the spatial scope of the VMS system to the CCAMLR Convention Area.

42 Model Scheme on Port State Measures to Combat Illegal, Unreported and Unregulated Fishing (Annex E to the Report of the Technical Consultation to Review Port State Measures to Combat Illegal, Unreported and Unregulated Fishing. Rome, 31 August–2 September 2004 (FAO Fisheries Report. No. 759 (Rome, FAO: 2004)), which was endorsed by FAO’s Committee on Fisheries at its Twenty-sixth Session in March

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Finally, mention should be made of a method that can be used to circumvent unjustifiable extra-territorial jurisdiction. Port States can stipulate as a condition for entry into port a written statement that the vessel has not engaged in or supported behavior like IUU fishing or illegal discharges in the maritime zones of the port State, the maritime zones of other coastal States or the high seas. Once an inspection reveals that such illegal activities have in fact taken place, a charge could be made for making a false statement or obstruction of inspection.43

4.2. Enforcement Jurisdiction

Examples of enforcement action that can be taken by the port State include:

Denial of access to ports altogether;

Prohibiting the landing, transshipment or processing of fish or other cargo;

Prohibiting the use of other port services, such as refueling, other forms of re-supplying (water, food, equipment, bait), making repairs, etc.;

Rectification (making repairs); and

Punitive/corrective action.

Provided the legislative exercise of jurisdiction is in accordance with international law, the types of enforcement action included in the first four bullets are not controversial. This cannot be said about the fifth bullet. Even Article 218, in conjunction with Articles 228 and 230, of the LOS Convention severely limit the enforcement action that can be undertaken by the port State. It is argued that customary international law would entitle port States to take punitive action for non-compliance with static CDEM standards.44 While this may be correct, port States commonly require rectification instead and have arguably committed themselves to such practice within regional merchant shipping MOUs.45

In the sphere of fisheries, Article 23 of the Fish Stocks Agreement does not explicitly refer to punitive action (e.g. forfeiture of catch) at all, even though some States may regard these to be covered by paragraph (4). The original draft to paragraph 2.6 of the FAO Port State Model Scheme contained the phrase “or to take measures such as the forfeiture of fish and fishery products, as may be provided for under [the port State’s] national legislation”. As this phrase was eventually deleted, this can be construed as a step backwards compared to paragraph 59 of the IPOA on IUU Fishing,46 which contains the phrase “any other actions it may take consistent with international law”.

A controversial approach is that pursued by the United States under the Lacey Act,47

which makes it an offence to, inter alia, import into, export from and even possess in the

2005 (see para. 25 of the Report).43 See, for instance, the United States v. Royal Caribbean Cruises Ltd. (1998-1999) case referred to in IMO

Doc. MEPC 51/14, of 26 January 2004, on p. 2 (also discussed by Molenaar, note Error: Reference sourcenot found, at pp. 466-467). Various States parties to the CCAMLR Convention pursue this approach pursuant to CCAMLR Conservation Measure 10-03 (2002), Port inspections of vessels carrying toothfish, at para. 2.

44 R.R. Churchill and A.V. Lowe, The Law of the Sea, Manchester, Manchester University Press, 3rd ed., 1999, at p. 276 emphasize the customary powers in this regard.

45 See Section 3 of the Paris MOU, including Section 3.5. See also Arts 219 ad 226(1)(c) of the LOS Convention.

46 See note Error: Reference source not found.47 16 United States Code Section 3371 et seq.

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United States, fish (wildlife) that has been taken in violation of a treaty or the domestic legislation of a foreign State. Not only can the fish be seized but both civil and criminal penalties can be imposed.48 Worth noting is that a Lacey Act-type of approach was proposed in paragraph 63 of the 2000 Sydney Draft of the IPOA on IUU Fishing, but found insufficient support. The deletion of the abovementioned phrase in the draft of the FAO Port State Model Scheme may have been motivated by concerns of Lacey Act-type of approaches as well. Opponents to a Lacey Act-approach will undoubtedly argue that, similar to Article 218 of the LOS Convention, an explicit treaty basis is needed for punitive action in conjunction with extra-territorial port State jurisdiction. However, the strength of the Lacey Act-approach is that its core justification is non-compliance with the regulation by other States or at the regional or global level. This means that while jurisdiction is extra-territorial, it is not truly unilateral. While these arguments would be sufficient to uphold a Lacey Act-approach in an international dispute settlement procedure is not evident however. But the chance of success would enhance significantly if Lacey Act-approaches would be pursued by an increasingly larger number of States, whether on an inter se basis or erga omnes. It will therefore be interesting to see the follow-up to recent proposals in the framework of the High Seas Task Force.49

Other options for taking punitive action against foreign vessels for behavior beyond the maritime zones of the port’s coastal State include those relating to false statements as mentioned at the end of subsection 4.1, requesting flag State consent and with regard to vessels without nationality, or stateless vessels. The LOS Convention does not offer a definition for stateless vessels, but stipulates in Article 92(2): “A ship which sails under the flag of two or more Stats, using them according to convenience, (…) may be assimilated to a ship without nationality.” The consequences of statelessness are also not spelled out in the LOS Convention, but a growing number of RFMOs call on its members to board, search and, if it has been fishing in a manner which undermines the relevant RFMOs’ management and conservation measures, arrest and prosecute a stateless vessel.50 While such action is most likely to take place on the high seas, it is certainly not ruled out that fishing vessels that try to land or transship IUU catch in ports are at that moment without registration.

It should finally be mentioned that a further broadening of port State jurisdiction, both in terms of legislation and enforcement, should be accompanied by appropriate safeguards to prevent abuse of rights and provide recourse to dispute settlement procedures at the national and international level.51

5. Towards Mandatory Port State Control and Global Coverage

As has been apparent from the discussion above, the LOS Convention does not deal with port State jurisdiction in a systematic and comprehensive manner. It essentially does no more than confirming the port State’s wide discretion under general international law and granting a strictly confined legal basis for extra-territorial port State jurisdiction potentially involving 48 Cf. R.S. Anderson, The Lacey Act: America's Premier Weapon in the Fight Against Unlawful Wildlife

Trafficking (text at <animallaw.info/articles/arus16publlr27.htm>).49 The Ministerial-led Task Force on Illegal, Unreported and Unregulated Fishing on the High Seas

established within the framework of the OECD. See Docs HSTF/06, of 25 February 2005, Promoting responsible port States and HSTF/10, ‘First Meeting of the High Seas Task Force. Summary of Outcomes’, 14 March 2005, at p. 3 (texts at <www.high-seas.org>).

50 Cf. R.G. Rayfuse, Non-Flag State Enforcement in High Seas Fisheries (Leiden/Boston, Martinus Nijhoff Publishers: 2004), at p. 330. See e.g. ICCAT (International Commission on the Conservation of Atlantic Tunas) Recommendation 97-11, at para. (2).

51 Such safeguards are inter alia incorporated in Section 7 to Part XII of the LOS Convention, Sections 3.10.2, 3.14 and 3.16 of the Paris MOU, Section 2.4 of IMO’s PSC Procedures (IMO Assembly Resolution A.787(19), Procedures for Port State Control, of 23 November 1995) and paragraphs 3.1-3.10 and Annex D of the FAO Port State Model Scheme.

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punitive action. Moreover, while flag State jurisdiction is compulsory under the LOS convention, the exercise of port State jurisdiction is facultative.52 This situation is essentially similar in IMO instruments. Whereas many of these contain provisions on in-port inspections, they do not oblige port States to carry out inspections but rather stipulate that once they do decide to inspect, such inspections are limited in certain ways, for example to a certificate check.53

This facultative nature of port State jurisdiction and the ensuing emergence of ports of convenience were among the main reasons for the creation of the Paris MOU, by which a commitment is made to inspect a certain minimum percentage of visiting foreign merchant vessels. In 1991, IMO Assembly Resolution A.682(17) ‘Regional Co-operation in the Control of Ships and Discharges’ in effect acknowledged the added value of the Paris MOU and commenced efforts to create a global network of regional merchant shipping MOUs.54 While the nine55 MOUs that have been established so far ensure almost complete global coverage, this does not necessarily mean that the level of effectiveness achieved by the Paris and Tokyo56 MOUs is also achieved by the remainder. The expansion of the scope of port State control driven by developments at IMO may for instance not be fully implemented by the other MOUs.

In addition to the close cooperation between the Paris and Tokyo MOUs, which inter alia led to the Second Joint Ministerial Conference in 2004, mention should be made of the bi-annual IMO Workshops for Port State Control (PSC) Agreement Secretaries and Directors of Information Centers. These workshops, the third of which took place in June 2004, are aimed at enhancing inter-regional cooperation.

In the context of international fisheries law, it was already observed that Article 23 of the Fish Stocks Agreement makes port State control both a right and a duty for States parties. Article 8(3) of the FAO Code of Conduct contains a (non-legally binding) commitment for port States to take the necessary measures to achieve the objectives of the Code. At the regional level, States participating within several RFMOs have currently bound themselves to taking port State measures against foreign vessels, whether or not such vessels fly the flag of a State Party to the Fish Stocks Agreement or of a member of that RFMO. It is, in the context of this paper, not possible to present a comprehensive examination of current practice of port State control within RFMOs. While analyses are available elsewhere,57 as RFMOs commonly meet at least once a year, practice is in a constant state of flux. The following are a few general observations on port State control in RFMOs:

52 See in particular Arts 25(2) and 218(1) as opposed to Arts 94, 211(2) and 217.53 See e.g. Art. 5 of MARPOL 73/78, Art. 11 of the International Convention on the Control of Harmful

Ant-fouling Systems on Ships (London, 5 October 2001. Not in force, IMO Doc. AFS/CONF/26, of 18 October 2001; note, however, that Art. 4(1)(b) of the IMO Anti-Fouling Convention imposes specific obligations on port States), Art. 9 of the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (London, 13 February 2004. Not in force, IMO Doc. BWM/CONF/36, of 16 February 2004) and Reg. XI-2/9(1) of SOLAS 74 (IMO doc. SOLAS/CONF.5/32, of 12 December 2002).

54 Adopted 6 November 1991. See also IMO’s PSC Procedures, note Error: Reference source not found.55 Europe and the North Atlantic (Paris MOU); Asia and the Pacific (Tokyo MOU); Latin America

(Acuerdo de Viña del Mar); Caribbean (Caribbean MOU); West and Central Africa (Abuja MOU); the Black Sea region (Black Sea MOU); the Mediterranean (Mediterranean MOU); the Indian Ocean (Indian Ocean MOU); and the Arab States of the Gulf (GCC MOU (Riyadh MOU)).

56 Asia-Pacific Memorandum of Understanding on Port State Control in the Asia-Pacific Region, Tokyo, 1 December 1993. In effect 1 April 1994 (text at <www.tokyo-mou.org).

57 For a more comprehensive analysis of practice by the main RFMOs see Rayfuse, note Error: Referencesource not found.

11 Developments in Port State Jurisdiction

▫ First, most of the RFMOs that deal with straddling, highly migratory and/or discrete high seas fish stocks have some form of port State control, even if implicit.58 Some do not have anything59;

▫ Second, there are no RFMOs that explicitly authorize, let alone stipulate, punitive/corrective enforcement action;60

▫ Third, many of the port State control regimes are facultative.61 This means that even

among the members of RFMOs, some ports are more ‘convenient’ than others;

▫ Fourth, some port State control regimes only apply to vessels flying the flag of non-members of the RFMO.62 Such discrimination may be unjustifiable and thereby inconsistent with international trade law;

▫ Fifth, many port State control regimes are weak procedurally. This is likely to cause a lack of uniformity which thereby again makes some ports more ‘convenient’ than others.

The FAO Port State Model Scheme endorsed in 2005 by COFI seeks to create a global network of regional port State control for the purpose of marine capture fisheries and to offer guidance and opportunities for harmonization in this respect. This is essentially similar to the objectives of the 1991 IMO Assembly Resolution A.682(17) and IMO’s PSC Procedures63. The Scheme consists of a Preamble, 12 paragraphs divided over five Sections entitled ‘General’, ‘Inspections’, ‘Actions’, ‘Information’ and ‘Others’, and five Annexes (A-E) entitled ‘Information to be Provided in Advance by Foreign Fishing Vessels’, ‘Port State Inspection Procedures of Foreign Fishing Vessels’, ‘Results of Port State Inspections’, ‘Training of Port State Inspectors’ and ‘Information System on Port State Inspections’.

The Technical Consultation in 2004 preferred the term ‘Model Scheme’ above the term ‘Memorandum of Understanding’ used in the draft produced by the Expert Consultation in 2002. Many delegations were opposed to the latter term because they felt it was too much associated with regional merchant shipping MOUs and they therefore feared it would stimulate duplication of the existing efforts of RFMOs and undermine the latters’ primacy. The term ‘Model Scheme’ was an acceptable compromise as a more neutral term that would not suggest a preference to the establishment of new MOUs outside RFMOs, while also not ruling these out. Certain delegations even emphasized the usefulness of the Model Scheme for individual port States. Whereas this would not be problematic for the procedural dimension of the Scheme (e.g. Annexes A-E), this does pose a risk of unilateralism in relation to the substantive ‘fishing’ standards, and thereby a risk of inconsistency with international trade law.64

While the status of the Scheme and its relationship with the IPOA on IUU Fishing are not clarified, the Scheme is best seen as an elaboration of the IPOA on IUU Fishing with regard 58 The CCSBT (Commission for the Conservation of Southern Bluefin Tuna) has an implicit port State

control regime due to its 2003 Resolution on Illegal, Unregulated and Unreported Fishing (IUU) and the Establishment of a CCSBT Record of Vessels over 24 meters Authorized to Fish for Southern Bluefin Tuna, according to which members will not allow the import and implicitly also the landing of catch by vessels not listed on the Record.

59 An example seems to be the GFCM (General Fisheries Commission for the Mediterranean).60 Cf. Rayfuse, note Error: Reference source not found, at p. 336.61 For instance, IOTC (Indian Ocean Tuna Commission) Resolution 02/01 ‘Relating to the Establishment of

an IOTC Programme of Inspection in Port’ uses “may” in para. (3).62 E.g. IOTC Resolution 02/01, note Error: Reference source not found, which provides in para. (7): “While

recognizing that inspection in port should be carried out in a non-discriminatory basis, in a first phase, priority should be given to inspection of vessels from Non-Contracting Parties.”

63 See note Error: Reference source not found.64 See also Section 2.3 of the Paris MOU.

12Erik Jaap Molenaar

to port State measures and, by implication, non-legally binding. Some delegations at the 2004 Technical Consultation were hopeful that the Scheme would be a first step towards developing a legally binding instrument. The Scheme basically invites States to implement it at the regional level, offers guidance in that respect and thereby aims towards mandatory port State control with global coverage.

The Technical Consultation also strongly supported the establishment of an FAO database concerning relevant port State measures, even though the funding was left unresolved after COFI in March 2005. This FAO database would inter alia contain the information identified in Annexes A-C and E of the Model Scheme. As the High Seas Task Force may establish a global information system on high seas fishing vessels, there may be an opportunity for cooperation.65 Finally, the bi-annual meeting of regional fisheries bodies at the FAO could, similar to the IMO-run bi-annual workshops mentioned above, might be a forum to further the objectives of global coverage of mandatory port State control as well.

6. Conclusions

The discussion in this paper has shown that port State jurisdiction is developing in various ways. The most rapid development is without a doubt the substantive scope of jurisdiction. This is not just a consequence of the updating of relevant international instruments but also of their continuous expansion into related or entirely new subject areas. The increase in the duration and complexity of inspections, in the frequency of multiple inspections and the involvement of multiple national inspection authorities present both challenges and opportunities.

The broadening of the rights of the port State occurs at a much slower pace than the substantive scope. The expansion has partly occurred through explicit treaty bases and the practice of RFMOs and partly also by port States that individually or collectively confirm their residual port State jurisdiction, interpret the power to set conditions for entry into port widely or pursue regulatory approaches by which extra-territorial jurisdiction is circumvented or becomes more justifiable.

The near-global coverage by regional merchant shipping MOUs, by which participating maritime authorities have committed themselves to carrying out port State control on a constantly broadening range of subject areas, means that port State jurisdiction is shifting from being facultative to mandatory. The renewed focus on maritime security due to international terrorism has contributed to this shift and so will the strengthening of port State control for fisheries purposes, whether or not within RFMOs and whether or not due to the implementation of the FAO Model Port Scheme.

A three-tiered approach of broadening the rights of the port State (balanced by appropriate safeguards), transforming it from a facultative to a mandatory competence and striving for global coverage is beneficial to the port State own rights and interests as well as the international community’s interests in, inter alia maritime safety and security, marine environmental protection, acceptable living and working conditions, sustainable management and conservation of marine living resources, safeguarding biodiversity. Part and parcel of this approach is the notion of the ‘responsible Port State’, which is committed to making the fullest possible use of its jurisdiction under international law in furtherance of not just its own rights and interests but also that of the international community.

65 See Docs HSTF/05, ‘How to get better information on high seas fishing vessels, of 25 February 2005 and HSTF/10, note Error: Reference source not found, at p. 3.