Port State Control And Jurisdictionevolution Of The Port State Regime

Nineteen ninety-two provided several painful reminders of the inherent hazards of oil tankers plying the high seas loaded with millions of gallons of crude oil. Within the space of a few days we witnessed a succession of catastrophic accidents: the foundering of the Greek AEGEAN SEA off the North-West coast of Spain, the breaking-up of the Liberian BRAER off the Shetland Islands, and the burning of the Danish-owned MAERSK NAVIGATOR near the entrance to the Indian Ocean's Malaccan Strait. Any one of these accidents could have been worse than the EXXON VALDEZ spill in Alaska in 1989, when 11 million gallons of crude oil leaked into Prince William Sound. This once again demonstrated the imperative need for an improved regime for the prevention of this kind of accident. The 1982 United Nations Convention on the Law of the Sea, which had been ratified by 54 states by the end of 1992, consolidates a number of novel provisions, one of which is port state enforcement for violations outside a state's jurisdiction. Port state control, as such, is a very old concept. It is based on the rule of international law, according to which a state exercises full jurisdictional powers within its internal waters and has the right to deny access to such waters. The 1982 Convention expands this jurisdiction and provides the port state with enforcement powers with respect to violations outside its national jurisdiction. Special emphasis is paid to the evolution of the port state enforcement regime; its formulation in the 1982 UN Convention on the Law of the Sea; advantages and disadvantages and finally the implementation of the enforcement provisions of relevant maritime conventions. This book also analyses flag state jurisdiction and the repercussions of the adoption of the 1986 Convention for Registration of Ships. Special emphasis is given to a regional European agreement, the 1982 Paris Memorandum of Understanding, which attempts to strengthen the implementation of the existing international legal standards that could serve as a model for a future port state regime.

The 1982 United Nations Convention on the Law of the Sea, which had been ratified by 54 states by the end of 1992, consolidates a number of novel provisions, one of which is port state enforcement for violations outside a state's jurisdiction. Port state control, as such, is a very old concept. It is based on the rule of international law, according to which a state exercises full jurisdictional powers within its internal waters and has the right to deny access to such waters. The 1982 Convention expands this jurisdiction and provides the port state with enforcement powers with respect to violations outside its national jurisdiction.

The capacity to act as a port state in international law is best described by the specific powers exercised over foreign ships, namely inspection, detention, expulsion or request of any type of information prior to the entry into the port. Many of these powers are explicitly attributed to the state in multilateral instruments, whereby the flag state consents to having its ships subject to the jurisdiction of the port state. Notwithstanding the consensus around the complementary nature of port state jurisdiction with respect to certain obligations of the flag state, the port state is not limited to fulfil a secondary role. This is especially visible in the prevention, reduction and control of ship-source pollution, where some port states have not hesitated in acting regardless of an expressed consent by the flag state to the rule or standard being applied with the support of port powers. Not only do port states use more stringent enforcement powers to ensure that international treaties are effective, but they also prescribe novel rules and standards upon any foreign ship that approaches the port, often as a means of breaking an international negotiation deadlock. This study discusses the international legal basis for such unilateral jurisdiction by analysing the principles of state jurisdiction under the dichotomy parochial/cosmopolitan. By interpreting the stated and implicit purposes of port state actions under that dichotomy, this study proposes that states are finding a legal ground to act based on certain legal functions they fulfil in the international legal order. This argument puts into perspective the assumed self-sufficiency of territoriality and shows how unilateralism may also serve to seek to set universally applicable norms.

This book examines the concept of port state jurisdiction in the context of international maritime law. In particular the book focuses on situations where port states have used their jurisdiction over visiting foreign-flagged vessels to apply unilateral domestic law, as compared with the internationally-agreed standards enforced by regional port state control organisations. To illustrate the legal issues involved three recent pieces of legislation are analysed in detail: the United States' Cruise Vessel Security and Safety Act 2010, the EU's liability insurance directive of 2009, and Australia's Fair Work Act 2009. Key issues include the legality of port states’ attempts to regulate aspects of a vessel’s structure or equipment, or even certain activities that may take place before a vessel’s arrival in port. The author argues that examples of unilateral measures being imposed by way of port state jurisdiction are growing, and that without active protests from flag states this concept will continue to expand in scope. As international law currently presents very few restrictions on the actions of ambitious port states, such developments may have a significant impact on the future of international maritime regulation.​

This volume provides a detailed legal analysis of the fourth pillar of the international maritime regulatory regime, the comprehensive Maritime Labour Convention, 2006, and its provisions to achieve decent work for seafarers and a level playing field for shipowners.

All of these flag States have the right to sail ships flying their flag on the high seas (LOSC Article 90) ; and those ships enjo y the freedom of navigation upon the high seas (LOSC Article 87) . W ith this freedom comes a concomitant duty upon the flag State to effectively exercise its jurisdiction and control in administrative , technical , social (LOSC Article 94 (1)) and en vironmental protection (LOSC Article 217) matters over ships flying its flag. 1.2 Flag State Responsibility The absence of any authority over ships sailing the high seas would lead to chaos. One of the essential adjuncts to the principle of freedom of the seas is that a ship must fly the flag of a single State and that it is subject to the jurisdiction of that State. (Brown 1994 , p. 287) This opinion of the International Law Commission in 1956 on a draft article of the High Seas Convention (HSC) was a product of its time; a time of traditional maritime States and responsible long-established shipping companies operating for 3 the most part under the effective maritime administrations of their national flag .

This is the first book to offer a comprehensive overview of modern seaports from a legal perspective. Further, it provides a basic toolkit for establishing a legal doctrine of seaports, the instruments of said toolkit being the very few legal norms specifically targeting seaports, which are examined as such rather than through the lens of other, more established disciplines, such as the law of the sea or transportation law. It is a first, necessary step toward giving seaports the status they rightfully deserve in legal studies. Despite centuries of international law studies and decades of EU law evolution, seaports have remained stuck in limbo. From a law of the sea perspective, seaports belong to the land, an approach that is often clearly reflected in national maritime legislation. The other branches of international law do not focus on seaports, since they are considered to belong to the sea. The port communities, for their part, have availed themselves of the “port specificity” concept. In recent decades, containerization has transformed ports into key hubs of the globalized economy, but also into vital checkpoints of the War on Terror, due to the security risks posed by the millions of sealed containers circulating worldwide. Moreover, tragic maritime incidents have shown that seaports are the only reliable sentinels of the seas, being the only places where the systematic inspection of ships is feasible. This has led to the adoption of specific international and EU rules. Those rules, however, remain fragmented, highly specialized and technical; as such, they are unsuitable for creating an organic legal seaport regime: this objective can only be achieved with a significant contribution from legal doctrine.

Jurisdiction over Ships: Post-UNCLOS Developments in the Law of the Sea analyses international law developments in shipping since the adoption of the UN Convention on the Law of the Sea (UNCLOS) in 1982. The Convention’s rules on the rights and obligations of flag states, coastal states and port states, have by and large been accepted and adhered to by states, but the legal regime for the oceans is neither complete nor static, nor was it intended to be so. New issues have surfaced while old issues have changed their character. Developments in law and practice have already resulted in some divergences between the jurisdictional scheme outlined in UNCLOS and how states in reality exercise their jurisdiction over ships. In this book, 18 leading academics in the field study a number of such developments in more detail, providing a practical guide to the state of the law at present while at the same time offering insights into how international law develops in this field.