7.5 Refusing port entry
The measures discussed above have addressed enforcement measures that may be imposed on a ship which is present in the port, in the form of conditions that must be fulfilled for it to continue its voyage. In order to strengthen the enforcement regime further, those measures have sometimes been coupled with a refusal of (future) access to ports by ships which fail to comply with the requirements.
UNCLOS includes no provision on this enforcement option and the matter is accordingly governed by general international law, as discussed in section 4.5 above. Certain more recent IMO conventions have occasionally included references to denial of access as a means of enforcement,(1) See e.g. article 11(3) of the 2001 International Convention on the Control of Harmful Anti-fouling Systems on Ships; International Convention for the Safety of Life at Sea (SOLAS), Chapter XI-2 ('Special Measures to Enhance Maritime Security'), regulations 9(1)(3) and 9(2)(5). See also Article 4(1)(b) of the 2009 FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing. but this is not the case with the main body of MARPOL or its Annex VI.(2) But see MARPOL Annex I regulation 21(8)(2) (adopted in 2003): "Subject to the provisions of international law, a Party to the present Convention shall be entitled to deny entry of oil tankers operating in accordance with the provisions of paragraph 5 or 6 of this regulation into the ports or offshore terminals under its jurisdiction ... except when this is necessary for the purpose of securing the safety of a ship or saving life at sea".
Rather, this is a development in state practice that has been driven at regional level, notably by the EU (largely followed by the Paris MOU). While controversial in the beginning, this type of ‘banning’ of ships has become a key feature of the enforcement of the EU’s maritime safety policy.(3) See Ringbom, note 45, pp. 310-317.
Under current rules it is possible to ban all classes of ships, that have been subject to repeated detentions a minimum period for a ban (3, 12 or 24 months) is applied, differently depending on the performance of its flag state and certain other criteria, together with the introduction of a permanent ban in the case of repeated bans.(4) PSC Directive, article 16, annex VIII. In the time-limited bans, the lifting of the access refusal is linked to compliance with a number of safety conditions, some of which extend beyond the matters that originally gave rise to the refusal of access.
This type of measure is obviously more powerful than a detention, but also more intrusive for ships and their owners.(5) As is noted by the Commission, in its Communication COM(2005), 588, p. 8, “[r]efusal of access is a very effective dissuasive tool in the campaign against substandard vessels.” In addition, refusal of access on this basis considerably magnifies the consequences of individual detentions. Through the close linkage of the refusal of access to the number of (but not necessarily the reasons for) detentions, the effects of a detention are extended well beyond the individual port call and are very closely linked to the ship’s ability to continue trading in the whole region, further increasing the sanction’s punitive character. In quantitative terms, the change of policy represents an increase from only a few banned ships in the first years following the introduction of the measure to some 80 ships at present.(6) See the list of banned ships at https://www.parismou.org/detentions-banning/current-bannings.
Refusal of access of ships has also been used as a mechanisms outside PSC. In EU Regulation 2015/757 on the monitoring, reporting and verification of carbon dioxide emissions from maritime transport,(7) OJ 2015 L123/55. which establishes obligations to monitoring and report CO2 emissions from ships for all ships above a certain size bound for EU ports. Under article 20(3) of the Regulation ships that have failed to comply with the monitoring and reporting requirements for two or more consecutive reporting periods “where other enforcement measures have failed to ensure compliance”, the port state may issue an ‘expulsion order’, as a result of which “every Member State shall refuse entry of the ship concerned into any of its ports until the company fulfils its monitoring and reporting obligations”.
Prohibiting the access of ships to all ports of the region no doubts meets the requirements of dissuasiveness and effectiveness and may appear attractive as it can be implemented even without entering the complexities related to sanctions as discussed above. Indeed, even if banning of ships is among the harshest enforcement measures available, it is in many respects easier to justify from a legal point of view than the imposition of sanctions. By only targeting the access of ships to ports, the measure has its legal foundation in the absence of such a right under international law.(8) See at note 42 above. The absence of a right of ships to access foreign ports, which is not at dispute, a fortiori implies rights for the port state to place conditions on such access. By only addressing ships that are not present in the territory, the measure bypasses a number of safeguards which have been included into UNCLOS for securing the interests of ship operators.
Yet the use of banning as a tool for enforcing air emission violations may face issues regarding proportionality. Like the ‘naming and shaming’, its suitability may be questioned as it targets the individual ship for an (unspecified?) period of time without regard to whether the parties behind the original infringements are still involved. Moreover, in the absence of static matters that can be repaired for the ban to be lifted,(9) The procedure for lifting the ban is outlined in Annex VIII of the PSC Directive and includes in para. 3 evidence ”showing that the ship fully conforms to the applicable provisions of the Conventions”. it is unclear how the ban could be motivated in preventive terms and how the conditions for lifting the ban could be formulated in a way that establishes a link to the original infringement. The measure may therefore seem excessively imprecise for its purpose.