Other enforcement measures
Apart from sanctions, international law offers certain other mechanisms for port states to enforce the relevant rules to complement the sanctions. Some of these measures have been reviewed in section 7, concluding that the effectiveness of the sanctions could be improved relatively easily by complementary measures of an administrative nature. A viable example, which is already in place in certain states in the region, is to condition the departure of the ship on payment of the fine or issuing a reasonable financial security. An even stronger measure would be to penalise confirmed violations by imposing limitations on the ship's right of (future) access to ports in the state or region as has been done in the case of (repeated) violations of safety standards under PSC.
The jurisdiction of the port state to impose sanctions or other enforcement measures on foreign ships is not unlimited, however. The main limitations of the enforcement measures are found in the general safeguards listed in UNCLOS Part XII section 7 and in certain key principles of general international law.
The eventual balancing of the reasonableness of a particular enforcement measure to deal with non-compliances with the sulphur in fuel requirements, it will be of relevance that the enforcement in this case is intimately linked to the effective application of international rules which are widely accepted in formal terms and in practice. There is accordingly no ‘unilateralism’ involved in the application of sizeable penalties or other enforcement measures for violations of the fuel quality standards. On the contrary, effective sanctions in this field aim at strengthening existing international regulation and arguably represent a necessary element to ensure their effectiveness. Enforcement measures in this area, even if adopted at regional level, do not add to the regulatory burden of flag states, even with regard to non-parties to MARPOL Annex VI,(1) See above at note 31. Note also that MARPOL article 5(4), like several other IMO conventions, provides that states, "shall apply the requirements of the present Convention as may be necessary to ensure that no more favourable treatment is given to [non-party] ships.” nor do they question the authority of IMO or otherwise challenge the freedom of navigation as laid down in UNCLOS. Measures with important economic impact can easily be justified by the strong incentives for operators to defy the rules.
Here, too, the real test will presumably centre on the proportionality of the measure in question, in relation to whether the measures imposed are proportional in relation to the objectives the rules seek to achieve and in relation to the infringement committed by the ship, and on the related question as to whether the measure might constitutes an abuse of right under UNCLOS article 300. Proportionality considerations could very well rule out measures that are very broad-brushed in that they affect a wide range of persons, including persons that are not involved in the infringement. In the availability of a more targeted and potentially very effective measure in the form of fines (if necessary coupled with detentions and financial security requirements), it is hence possible that a measure like the banning of the ship from the region's ports might overstep the limits of proportionality.
To date there is no known international or EU case law which would help to indicate where the borders of reasonableness might lie for air emission violations. Even national cases are very few, they have not so far addressed blatant cases of non-compliance and have remained relatively modest in size. In view of the wide variety of enforcement measures and sanctions that currently apply in different states, it is likely that the outcome of such judgments, too, will diverge within the Northern European SECA. What appears entirely clear, however, is that individual states in the region and the EU have considerable scope for implementing stronger enforcement measures to improve the effectiveness of the sulphur in fuel requirements than what they have done to date. A number of considerations highlighted in this article would favour the elaboration of common principles to this affect at EU-level.