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Port State Jurisdiction and Port State Responsibilities

Port State Jurisdiction and Port State Responsibilities. Henrik Ringbom Professor II, Scandinavian Institute of Maritime Law, University of Oslo Adjunct P rofessor (Docent), Åbo Akademi University. Hamburg International Environmental Law Conference Hamburg, 4. April 2019. Content.

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Port State Jurisdiction and Port State Responsibilities

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  1. Port State Jurisdiction and Port State Responsibilities Henrik RingbomProfessor II, Scandinavian Institute of Maritime Law, University of Oslo Adjunct Professor (Docent), Åbo Akademi University Hamburg International Environmental Law Conference Hamburg, 4. April 2019

  2. Content • Introduction • What is PSJ? • Law of the sea and general international law • PSJ – some developments • Maritime safety, environment (IMO) • EU • Fisheries • International private law (choice of law) • PSJ as a tool for foreign policy • Future opportunities (technology, MASS) • Responsibilities: what are the limits? • Conclusions

  3. Introduction • PSJ • State is the active party • Prescription vs. enforcement jurisdiction • Law of the sea aspects • UNCLOS almost silent on prescription • Limits? • Safeguards for enforcement • General international law • Concerns (commercial, uniformity enforcement)

  4. PSJ developments • Maritime safety, environment • IMO • EU • Fisheries • International private law • Other

  5. PSJ developmentsIMO conventions • Earlier conventions: • PSC • NMFT- clause • More recent conventions (explicit provisions on PSJ) • AFS 2001 • ISPS 2002 • Marpol (DH) 2003 • BWM 2004 • SR 2009

  6. PSJ developmentsEU maritime safety • Some 40 directives and regulations since 1993 • Clear port state perspective • Mainly based on international (IMO) rules & standards • Has become more independent of the IMO rules over time • Prescription • Enforcement

  7. Scandinavian Institute of Maritime Law ● 1726/2003 (DH) Competing with international rules Complementing international rules by regional rules Making non-binding int’l rules mandatory in EU Implementing international rules ● 2005/33 (SOx) ● 2003/25* ● 2002/59 (VDR) ● 1999/35* ● 2005/33 (sanctions) ● 98/18* ● 336/2006 (ISM) ● 2000/59 (PRF) ● 98/41 (Pax.reg.) ● 93/75 (Hazmat) ● 725/2004 (ISPS) ● 2001/96 (BLU) ● 97/70 (SFV) ● 3051/95 (ISM) ● 782/2003 (AFS) ● 1999/95 (ILO 180) ● 94/58 (STCW) ● 95/21 (PSC) 1993 1996 1999 2002 2005 * = Requirements for passenger ships under the ‘host State’ umbrella.

  8. Scandinavian Institute of Maritime Law Criminal sanctions Refusal of access to EU ports Conditions for operating pax. ship services Detention + banning Detention Pre-departure obligations Control ● 2005/35 ● 1726/2003 (DH) ● 417/2002 (DH) ● 725/2004 (ISPS) ● 98/18 (SOLAS) ● 1999/35 (licensing) ● 2003/25 (Ro-ro stability) ● 3051/95 (ISM) ● 2001/106 (PSC, VDR) ● 98/25 (ISM) ● 2001/25 (STCW) ●(?) 782/2003 (AFS) ● 336/2006 (ISM) ● 95/21 (PSC) ● 2000/59 (PRF) ● 2001/96 (BLU) ● 1999/95 (ILO 180) ●(?) 2005/33 (SOx) ● 93/75 (Hazmat) ● 97/70 (SFV) ● 94/58 (STCW) 1993 1996 1999 2002 2005

  9. PSJ developmentsIUU Fisheries • UNFSA 1995 • FAO Model scheme 2005 • PSMA 2009 • RFMOs

  10. PSJ developmentsInternational private law (EU) Applicable law in contracts (Rome I Regulation) Example: employment contracts for seafarers • Freedom of contract • “habitual place of work” (Art 8(3) • “overriding mandatory provisions” (Art 9) • overall connection (Art 8(4))

  11. PSJ developmentsPSJ as a tool of international policy • UNSC resolutions • North Korea • Yemen • Policy sanctions • Quatar

  12. Future challenges and opportunities • Technology developments supports wider usage of PSJ • Anonymity disappearing • Tools for remote monitoring • MASS • LOS elements more generally • PSJ challenges

  13. Port State responsibilities:Limits to the use of PSJ? • Enforcement: • UNCLOS safeguards • E.g. ITLOS Case No. 19 Virginia G • Prescription • Customary law on PSJ has changed since adoption of UNCLOS • Implications for port States?

  14. Port State responsibilities: What are the legal limits? • Starting point: territorial sovereignty, no right of access  right to place conditions • UNCLOS unspecific (but arts. 25(2), 211(3)) • IMO conventions (most conventions not explicit) • Other international law (bilateral agreements, WTO law etc.) • Some requirements apply anyway • Non-discrimination • Prohibition of abuse of right (art. 300) • Proportionality, reasonableness (?)

  15. In the absence of a treaty • Two approaches under UNCLOS: • Explicit prescriptive basis required vs. • ‘Liberal’ PSJ approach • Legality depends on the type of regulation too • ‘Static’ rules (CDEM requirements, violation takes place in port) • Discharges (UNCLOS article 218) • Other ‘operational’rules regulating conduct beyond port State • What enforcement measures are available? • How relevant is the jurisdictional scheme of the law of the sea for settling this matter? • Extra-territorial jurisdiction under general int. law

  16. Enforcement measures • Withholding benefits to which foreign ships are not entitled under international law: • Prohibition to use port services (fuelling, supplies, repairs etc.) • Prohibition to access port at all • (Future) ‘banning’ from port(s) • More punitive measures: • Detention • Monetary or other penalties • Note ‘jurisdictional cheating’ • In any case, proportionality and other reasonableness criteria apply + UNCLOS safeguards (undue delay, involvement of flag State etc.)

  17. Similar considerations under different PIL disciplines • Law of the sea: port State measures are available but have to be non-discriminatory, reasonable, proportionate to achieve the aim, not constitute abuse of rights and must respect ‘safeguards’ in UNCLOS. Punitive enforcement measures (including fines) might not be available if prescriptive basis is weak. • International law principles on extra-territorial jurisdiction: relatively imprecise, no ‘hard’ law. Idea gaining ground of a single principle of jurisdiction based on ‘genuine and reasonable interest’ and balancing of interests in relation to the jurisdiction of other States. • International trade law: limitations to be assessed in view of object and purpose of measures, discriminatory effect, international cooperation efforts, available alternatives, overall balancing of interests.

  18. Conclusions • The use of PSJ in practice is increasing and looks set to continue doing so • PSJ is legally available as a mechanism for unilateral regulation and enforcement by port states, but PIL places limitations on its design • Legality ultimately depends on: • Nature of obligations (do they relate to static or operational conditions, geographical reach etc.) • Chosen methods to enforce violations (sanctions, denied port entry etc.) • General reasonableness, based on underlying purpose, proportionality, available alternatives, effects on shipping and trade etc. • Objective of the measure(?) • In the end it comes down to a balancing of the interests involved

  19. Considerations when balancing the interests • Effort required by ship owners/operators (financial, administrative etc.) • Effect on navigational rights/principle of global regulation • Objective (global concern, broader implications than shipping, support in other international fora) • Effectiveness • Available alternatives? • Efforts to achieve a multilateral solution (repeated efforts) • Benefit for the port state/region? • Perspective decisive  forum of a legal dispute

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