MarIus

4.5.1 Generally on port states’ prescriptive and enforcement jurisdiction

In contrast to the rigid limitations of coastal state jurisdiction over foreign ships, port states are largely left outside the specific jurisdictional rules of UNCLOS. Yet it is well-established that internal waters for jurisdictional purposes may be assimilated to the land territory of the state. Ships, through their voluntary presence in the port or internal waters of another state, subject themselves to the (sovereign) territorial jurisdiction of that state. (1) See also UNCLOS article 2, and, e.g., K. Hakapää, Marine Pollution in International Law, Material Obligations and Jurisdiction with Special Reference to the Third United Nations Conference on the Law of the Sea, Suomalainen Tiedeakatemia, Helsinki 1981, p. 169 and Churchill & Lowe (1999), p. 65. As a starting point, a port state is hence free to impose its national rules on foreign ships and to enforce those rules by (reasonable) means of their choice, at least as far as they do not relate to matters which are completely internal to the ship.(2) See R.R. Churchill & A.V. Lowe, The Law of the Sea, Third Edition, Manchester University Press, Manchester, 1999, pp. 65-69. Potential enforcement measures include the detention of the ships or the imposition of other conditions for departure(3) The jurisdiction to close ports to inward traffic is widely understood to include the power to prohibit outward traffic. See e.g. Johnson (2004), pp. 35—36; and Churchill & Lowe (1999), p. 64. and the application of national laws by judicial or other process, including the imposition of various types of sanctions. It is also widely recognised that ships enjoy no general right of access to foreign ports under international law. (4)Case concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America), 27 June 1986, ICJ Reports 1986, para. 213. MARPOL article 5(3) specifically recognises the option of states not to allow access to their ports if ships fail to comply with its provisions. See also L. de la Fayette, ‘Access to Ports in International Law’ (1996) International Journal of Marine and Coastal Law, pp. 1-22. This implies, a fortiori , a right for the port state to make access to its ports conditional on compliance with specific requirements.(5) This right is specifically recognised in UNCLOS articles 25(2) and 211(3).

The extent of port state’s jurisdiction may differ depending on the character of the requirements at issue. On the one hand, there are rules relating to ‘static’ features of ships, such as its design, construction, equipment or manning. These features ‘follow’ the ship wherever it is; it either complies or not, irrespective of its geographical location. Failure to carry compliant fuel on board a ship is ‘static’ in this sense, as the violation takes place continuously, including while the ship is in the port. The presence of an exhaust gas cleaning system is another example.(6) See also Swedish Case No. M 8471-03, Svea Court of Appeal, Environmental Court of Appeal (Miljööverdomstolen), Judgment of 24 May 2006, where the Court confirmed that the requirement of the port of Helsingborg for ships to be equipped with selective catalytic converters to reduce nitrogen emissions, was consistent with international law, even if no such requirements had been established by IMO. Despite their intrusive effect on ships, static port state requirements are fairly straightforward in jurisdictional terms. If a ship fails to comply with a port state’s requirement on static features it will be in violation even while present within the port or internal waters of the state, where the prescriptive jurisdiction of states is uncontested.

On the other hand, requirements of a ‘non-static’ nature, which relate to specific conduct or other operational requirements on foreign ships, such as the obligation to use a particular fuel on board or to operate the cleaning system, raise somewhat different questions. Compliance may change during the voyage of a ship which calls for a determination of the scope of the obligation in geographical terms. For these cases it cannot be assumed that a violation in the port has necessarily (also) persisted during the passage of the ships. In case the port state seeks to regulate conduct that takes place beyond the areas over which it has explicit prescriptive jurisdiction (in UNCLOS), the requirement has extra-territorial features, and the jurisdictional foundation for the requirement may be questioned.

The jurisdictional acceptability of the port state’s requirement also depends on the enforcement measure taken. Enforcement measures which are unproblematic from a point of view of international law, such as denying the non-complying ship the right to certain services in port, or even the access to the port, may be justified even if the prescriptive basis for extra-territoriality is weak, while punitive measures, such as sanctions, may require a firmer prescriptive jurisdictional basis. (7) See in particular E.J.Molenaar, ‘Port State Jurisdiction toward Comprehensive, Mandatory and Global Coverage’, 38 Ocean Development and International Law, 2007, pp. 225—257.

In the absence of specific limitations, thus, a port state enjoys a wide discretion to impose access conditions and other requirements on foreign ships that voluntarily enter its ports. (8) Generally, see B. Marten (2014), Port State Jurisdiction and the Regulation of International Merchant Shipping, Springer, Dordrecht, 2014), Molenaar note 44 and H. Ringbom, The EU Maritime Safety Policy and International Law, Brill/Martinus Nijhoff, Leiden/Boston, 2008, Chapter 5. This discretion is not without limits, however. Limitations to this a priori unlimited jurisdiction of port states include, firstly, the restraints that may follow from treaty commitments, whether imposed by bilateral or multilateral, maritime, commercial or other treaties. For example, bilateral and multilateral treaties on trade and commerce commonly include a requirement of national treatment, limiting the rules of that (port) states may apply to ships of other contracting parties to those which are applied for ships flying their own flag.(9) For example, article 2(1) of the 1923 Statute of the International Régime for Maritime Ports. The national treatment principle is also a key principle under the WTO agreements.(10) National treatment refers to “treatment no less favourable than [the Member] accords to its own like services or service suppliers” (GATS article XVII). See also article III of General Agreement on Tariffs and Trade (GATT) and article 2(1) of the WTO Agreement on Technical Barriers to Trade (TBT Agreement).

Secondly, restraints may follow from the application of more general principles of general international law, such as the prohibition of discrimination or of abuse of rights.(11) See also UNCLOS article 300. Proportionality requirements may also place limitations on the enforcement measures which may reasonably be taken against ships that fail to comply with the port state’s requirements, or if the sanction would be completely out of proportion with the aim it seeks to achieve.(12) A proportionality requirement exists explicitly in some UNCLOS provisions relating to the enforcement of national rules against foreign ships. See e.g. articles 221 and 232. This type of limitations, which may be grouped together under the general heading of ‘reasonableness criteria’, are clearly less specific and more dependent on the circumstances of the individual case than the relatively clear-cut, maximum limits imposed on coastal states for regulating ships transiting their maritime zones.

4.5.2 The special rules on vessel-source pollution

With respect to enforcing rules relating to ship-source pollution, Part XII of UNCLOS includes certain specific rules which clarify the geographical reach of port states’ (prescriptive and enforcement) jurisdiction. First, article 220(1) provides that a port state may

institute proceedings in respect of any violation of its laws and regulations adopted in accordance with this Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels when the violation has occurred within the territorial sea or the exclusive economic zone of that State.

This jurisdiction includes the jurisdiction to enforce national rules of the port states, i.e. including rules that do not have a counterpart in the international standards. On the other hand, the geographical extent of such requirements is limited to violations that have occurred in the territorial sea or the EEZ of the port state.

Where the rule has an international foundation, UNCLOS article 218(1) offers an additional, unusually broad, geographical basis for port states’ jurisdiction, by including the right to penalise discharges even if the discharge took place in the high seas or in the maritime zones of other states, irrespective of whether the port state itself was affected by it.(13) It is added in article 218(2) that proceedings should not be instituted with respect to discharges in other states’ coastal waters, unless the port state is concerned by the spill or requested to act by that other state, the flag state or a state which is threatened by the discharge. This provision, which represented one of the main innovations in UNCLOS in 1982,(14) Hakapää note 38, p. 178, UNCLOS Commentary, note 30, pp. 261-270. reads:

When a vessel is voluntarily within a port or at an off-shore terminal of a State, that State may undertake investigations and, where the evidence so warrants, institute proceedings in respect of any discharge from that vessel outside the internal waters, territorial sea or exclusive economic zone of that State in violation of applicable international rules and standards established through the competent international organization or general diplomatic conference.

It seems clear that MARPOL, including its, Annex VI, meets the criteria for "applicable international rules and standards established through the competent international organization" as referred to in the paragraph.(15) See at note 31 above. The cross-reference in the other direction is equally clear. It was already noted above that MARPOL Annex VI itself declares that "the international law concerning ... pollution of the marine environment, including that law relating to enforcement and safeguards, in force at the time of application or interpretation of this Annex" applies mutatis mutandis to its requirements. There is no reason to exclude the jurisdiction under article 218 from this reference.(16) One potential reason could be doubts as to whether air emissions could be considered to be 'discharges' within the meaning of Article 218. However, this difference in terminology would be captured by the mutatis mutandis provision of MARPOL Annex VI regulation 11(6). Apart from that, it may also be noted that MARPOL article 2(3)(a)contains a very broad definition of the term ‘discharge’, covering “any release howsoever caused from a ship and includes any escape, … emitting or emptying”. Even if the limited application of article 218 in practice could cast doubts on its status as customary law, its applicability as "international law in force at the time of application" cannot be disregarded as between parties to UNCLOS, which includes the overwhelming majority of states. On that basis, it must be assumed that the generous environmental jurisdiction of port states over foreign vessels which is granted in UNCLOS article 218 extends to violation of MARPOL Annex VI including its fuel quality requirements.(17) The most thorough analysis of this issue to date has been made by Molenaar in 1998, where he concluded that article 218(1), through regulation 11(6) of Annex VI, extends to ship-source air pollution, at least between the parties to MARPOL. See Molenaar, note 29, pp. 506-510. This, however, applies only to the extent that that the other conditions of article 218 are and UNCLOS safeguards are met, which calls for a close cooperation between the states involved.(18) The second paragraph conditions legal action by a port state against violations in another state's coastal waters upon a specific request by that coastal state, the flag state or another state threatened by the discharge. Paragraph 4 gives precedence to the coastal state where the discharge violation has taken place, by providing that the port state proceedings shall be suspended at the request of the coastal state. See also section 4.6 below.

In practice, article 218(1) has been very sparingly used, but has gained some renewed prominence through its collective application by the EU member states through Directive 2005/35.(19) Directive 2005/35 on ship-source pollution and on the introduction of penalties for infringements, OJ 2005, L255, p. 11. However, this Directive only covers discharges of oil and noxious liquid chemicals and does not authorise enforcement action against violations of MARPOL Annex VI.

In conclusion, it seems completely clear that a port state under UNCLOS article 220(1) has prescriptive jurisdiction over - and may impose penalties for - violations of the MARPOL requirements that have been committed in the port, and in its own territorial sea and EEZ. The Directive does not extend prescriptive jurisdiction over foreign ships beyond this area and the same seems to be true for many, though not all, national rules in the Northern European SECA states. (20) See e.g. the Finnish Act on Environmental Protection in Maritime Transport (Act 1672/2009, hereinafter 'the Finnish 2009 Act'), section 3. For a broader approach, see chapter 2 section 3 of the Swedish Act 1980:424 on Measures Against Water Pollution from Ships, which includes 'Baltic Sea areas' beyond Swedish coastal waters within its scope. Section 3(2) of the 2007 Norwegian Ship Safety and Security Act permits the King to adopt measures against foreign ships that extend beyond Norwegian coastal waters, "insofar as it is in compliance with international law". A limitation to waters under national jurisdiction also corresponds to the enforcement obligation in MARPOL article 4(2).(21) See note 69 below.

Should a need for it arise, however, the jurisdiction over violations in the port state's coastal waters could also be extended to cover violations outside this area, including the high seas and coastal waters of other states, on the basis of UNCLOS article 218 and, depending on the enforcement measures chosen, general principles on international law.