Port states
The bulk of the EU’s shipping rules apply to ships, independently of their nationality, which (voluntarily) enter a port of a member state. Many of these rules implement international rules and hence serve to give effect by strengthening and harmonizing the enforcement of international (IMO and ILO) rules throughout the entire Union and EEA.
The most important EU measure aimed at enforcing international rules is the port state control (PSC) directive, which establishes a very elaborate control regime for any ship visiting EU/EEA ports, together with related databases, information tools, training programs etc.(1) Directive 2009/16 on port state control OJ [2009] L131/57. Even if the PSC merely enforces international rules, it represents a very powerful tool for ensuring that the rules are implemented in practice. The entry into force of the Polar Code in 2017 has provided increased opportunities to implement requirements that specifically apply to Arctic shipping through PSC.
The enforcement measures taken in EU ports in cases of noncompliance have been strengthened over time and now include quite drastic consequences, such as the “banning” of a ship from an entire region’s ports.(2)Ibid., Article 16, and similarly in section 4 of the 1982 Paris Memorandum of Understanding on port state control, as amended.
Apart from enforcing international rules in EU ports, some of the EU requirements have included EU standards (which go beyond their international counterparts) to be met by any ship entering an EU/EEA port. Many of those EU requirements relate to matters that are ‘static’ and do not change during the voyage of ships. In these cases, port state requirements may have a considerable impact on shipping worldwide, including in the Arctic. If, for example, an oil tanker entering an EU port is required by EU rules to be of a double hull construction, then even if those rules do not apply elsewhere,(3) This used to be the case on the basis of the requirements of EU Regulation 1726/2003 amending Regulation (EC) No 417/2002 on the accelerated phasing-in of double-hull or equivalent design requirements for single-hull oil tankers OJ [2003] L326/28 until the 2003 amendments to MARPOL Annex I, Regulation 20 entered into effect in July 2005. tankers that intend to visit EU port will have to comply, wherever they operate. Other examples of regional EU port state requirements with similarly widespread effects include carriage requirements of voyage data recorders for certain categories of ships(4) VTMS Directive n 23, Article 10 and Annex II(2). and the early application of some international instruments, such as the AFS convention.(5) Regulation 782/2003 on the prohibition of organotin compounds on ships, OJ [2003] L115/1.
The EU has also imposed requirements of a ‘non-static’ (operational) nature on foreign ships visiting its ports. Examples include reporting requirements, prohibitions on illegal discharges and fuel quality requirements. The geographical extent of the requirements needs to be mentioned here, but depending on a variety of factors which are discus- sed more closely in the port states section below, this does not exclude the possibility that such requirements may extend beyond the coastal waters of the port states, including to Arctic waters. The best existing example is probably directive 2005/35, which specifically obliges port states to consider instituting proceedings with respect to violations of MARPOL Annexes I and II thattake place on the high seas. The relevance of this requirement in an Arctic context is limited by the fact that the directive does not extend to the coastal waters of other states, while the key maritime routes in the Arctic specifically run through the coastal waters of Canada and Russia.
A more recent example of how the EU has used port state jurisdiction for promoting concerns that extend beyond its own geographical borders is the regulation for monitoring, reporting and verification of CO2 emissions by ships entering EU ports, that was adopted in 2015.(6) Regulation 2015/757 on the monitoring, reporting and verification of carbon dioxide emissions from maritime transport, OJ [2016] L 123/55. The Regulation introduces obligations for ship owners to plan, monitor and report to the EU their estimated CO2 emissions and it includes strong enforcement measures for non-compliers, including - as a measure of last resort - the banning of the ship in question from all EU ports.(7)Ibid., Article 20(3). The regulation has proven controversial as it is commonly considered to be the first step towards a future regional market-based regulatory regime for GHGs in shipping,(8) Along these lines, the European Parliament, in its first reading report on the revision of the EU Emissions Trading System of 15 February 2017, demanded that the IMO should have a system comparable to the EU ETS system available for global shipping by 2021. If that is not put in place, then shipping shall, according to the Parliament, be included in the European ETS as from 2023. See EP Doc. P8 TA(2017)0035, proposed new chapter IIa (articles 3ga-3ge). which also raises several difficult questions of international law.(9) See H. Ringbom ‘Global Problem—Regional Solution? International Law Reflections on an EU CO2 Emissions Trading Scheme for Ships’ (2012) 26(4) International Journal of Marine and Coastal Law (IJMLC) 613-6