MarIus

2.2.1 Overview

Within its internal waters, the coastal State has full jurisdiction. The internal waters are the waters on the landward side of the coastal State’s baseline, which is drawn along the low-water line or between appropriate points along the coast.(1) UNCLOS art. 8 cf. art. 14. cf. arts. 5, 6, 7, 9, 10, 11 and 13.The coastal State’s internal waters are, like its land territory, subject to the coastal State’s sovereignty.(2) UNCLOS art. 2. This also applies to ports.(3) UNCLOS arts. 8 cf. 5 cf. 11; Erik J. Molenaar, “Port State Jurisdiction” in Max Planck Encyclopedia of Public International Law, Rüdiger Wolfrum (ed.), Oxford Public International Law, 2014, para. 7. Thus, in its internal waters and ports, the coastal State does, as a main rule, have full prescriptive and enforcement jurisdiction over foreign-flagged ships. This entails that the coastal State may choose to make ships present in its ports or internal waters subject to domestic regulation, for instance in relation to wage and working conditions on board the ship, and to enforce such regulations. The coastal State can also regulate these ships by regulating access to its ports.(4) See discussion in section 2.2.3.

UNCLOS lays down few restrictions on the coastal State’s jurisdiction in its internal waters and ports.(5) Donald R. Rothwell and Tim Stephens, The International Law of the Sea, 2nd ed., Oxford: Hart Publishing, 2016, pp. 56–57; Ringbom (2015) pp. 116–117. One restriction worth mentioning, is art. 8 (2), upholding the right of innocent passage in some internal waters which had not previously been considered as such. The right of innocent passage will be discussed in section 2.3. However, possible restrictions following from the rules and principles of general international law do apply.(6) UNCLOS, preamble, at para. 8. Rules and principles of general international law limit the coastal State’s jurisdiction over ships present in its ports or internal waters due to distress or force majeure.(7) R. R. Churchill and A. V. Lowe, The law of the sea, 3rd ed., Manchester: Manchester University Press, 1999, p. 68; Philip C. Jessup. The law of territorial waters and maritime jurisdiction, New York: G. A. Jennings Co., Inc., 1927, pp. 194–208. Furthermore, there is a need for a “sufficiently close or substantial connection with the person, fact, or event and the State exercising jurisdiction”.(8) Erik J. Molenaar, “Port and Coastal States” in The Oxford handbook of the Law of the Sea, Donald Rothwell, Alex Oude Elferink, Karen Scott, Tim Stephens (eds.), Oxford University Press, 2016, para. 16. See also F. A. Mann, «The Doctrine of Jurisdiction in International Law» in Collected Courses of the Hague Academy of International Law, No. 3, Leiden: Brill Nijhoff, 1964, p. 49. See discussion in section 2.5. The obligations in UNCLOS art. 300 to “fulfil in good faith the obligations assumed under [the] Convention” and to “exercise the rights, jurisdiction and freedoms recognized [therein] in a manner which would not constitute an abuse of right” do also place some restraints on the potential use of the coastal State’s jurisdiction in its internal waters and ports. In addition to this, matters internal to the ship are often mentioned as a possible limit on the coastal State’s jurisdiction over ships present in its internal waters and ports.(9) Bevan Marten, “Port State Jurisdiction, International Conventions, and Extraterritoriality: An Expansive Interpretation”, in Jurisdiction over Ships Post-Unclos Developments in the Law of the Sea, Henrik Ringbom (ed.), Leiden: Brill Nijhoff, 2015, pp. 105–139, on pp. 115–117; Bevan Marten, Port State Jurisdiction and the Regulation of International Merchant Shipping, Hamburg: Springer, 2014, pp. 28–31; Churchill and Lowe (1999) pp. 65–69; Molenaar (2014) para. 12; Ringbom (2015) pp. 123–127.

2.2.2 Internal matters

The term “internal matters” refers to matters that are internal to the ship and which do not affect the interests of the port State.(10) Molenaar (2014) para. 12. Port States often refrain from exercising jurisdiction over internal matters.(11) Molenaar (2014) para. 12.Whether or not this practice reflects a rule under customary international law, is a matter of some debate.(12) In an unpublished legal opinion from 2009, commissioned by the Norwegian Shipowners’ Association, concerning regulation of wage and working conditions on board foreign-registered supply ships on the Norwegian continental shelf, Alexander Proelss writes on page 8, that “under customary law all matters relevant to the ‘peace of the ship’ (such as, e.g., employment standards) continue to be governed by the legislation of the flag State even while the vessel is in the internal waters of another State”. See also Alan E. Boyles unpublished legal opinion from 1998 on a proposed EU directive on manning conditions for regular ferry services between EU Member States, cited in Marten (2014) p. 193 at footnote 187 and in Molenaar et al. (2008) pp. 102–104. Of a different opinion are, inter alia, A. H. Charteris, “The Legal Position of Merchantmen in Foreign Ports and National Waters” in British Year Book of International Law 1 (1920- 1921) pp. 45–96, p. 46; Malcolm N. Shaw, International Law, 8th ed., Cambridge: Cambridge University Press, 2017, p. 413; Jessup (1927) pp. 1 91–194 and 236; Rothwell and Stephens (2016) pp. 58–59; Molenaar et al. (2008) pp. 104–105; Ringbom (2015) pp. 125–126; Marten (2014) pp. 31 and 193–195; and Marten (2015) p. 116. A distinction can be made between the French approach and the Anglo-American approach. According to the French approach, the port State’s jurisdiction over ships in port does not extend to matters that are internal to the ship, unless the port State is asked to intervene or events on board disturb the peace of the port, at which point they cease to be regarded as internal matters.(13) Churchill and Lowe (1999) p. 66–67; Marten (2014) p. 29. See Avis du Conseil d’État sur la Compétence en matière de Délits commis, à bord des Vaisseaux neutres, dans les Ports et Rades de France (1806), paras. 4–7. Conseil d’État’s position in this case has since formed the basis for French practice, even though the port State’s jurisdiction was somewhat expanded in serious crimes, such as murder, later in the 19th century (see Cour de Cassation’s ruling Jally/Tempest (1859), discussed in Charteris (1920–1921) p. 53). According to the Anglo-American approach, the port State has full jurisdiction over foreign-flagged ships in port, but it may choose not to exercise it.(14) Churchill and Lowe (1999) p. 66. See e.g. Cunard Steamship Co., Ltd. v. Mellon, 262 U.S. 100 (1923), which concerned application of the American prohibition laws to ships at port. See also Lauritzen v. Larsen 345 U.S. 571 (1953); McCulloch v. Sociedad Nacional de Marineros de Honduras 372 U.S. 10 (1963); and Incres Steamship Co. Ltd. v. International Maritime Workers’ Union 372 U.S. 24 (1963), which all concerned application of American labour laws to foreign seafarers (mentioned in Ringbom (2015) p. 125, footnote 34).

The question of whether the coastal State has jurisdiction to regulate internal matters on board foreign-flagged ships in port depends on whether a rule reflecting the French approach exists in customary international law. The conditions for the existence of a customary rule of international law are the existence of consistent State practice and the belief among these states that they are conforming to what amounts to a legal obligation (opinio juris sive necessitatis).(15) These conditions are described, inter alia, by the International Court of Justice in the 1969 North Sea Continental Shelf Cases, paras. 73–74 and 77.

The practice of port States refraining from regulating internal matters on board foreign-flagged ships is relatively widespread and uniform.(16) Churchill and Lowe (1999) pp. 66–68; Marten (2014) p. 30 with further references.However, this is a consequence of the fact that States adhering to the Anglo-American approach have been hesitant to exercise the jurisdiction they believe that they have, while States adhering to the French approach have had an increasingly wide understanding of what disturbs the peace of the port.(17) Churchull and Lowe (1999) p. 66; Jessup (1927) pp. 191–194; Marten (2014) p. 30; Ringbom (2015) p. 124. This makes it difficult to establish that the second criterion for the establishment of a rule of customary international law is satisfied, being the belief among these States that they are conforming to what amounts to a legal obligation. This is also the dominant view in legal literature: Any restraints on the port State’s jurisdiction over foreign-flagged ships in port do not follow from customary international law, but rather from internal political assessments, national laws and/or considerations of comity.(18) See, inter alia, Charteris (1920–1921) p. 46, p. 46; Jessup (1927) p. 191–194 and 236; Marten (2014) pp. 31 and 193–195; and Marten (2015) p. 116; Molenaar et al. (2008) pp. 104–105; Ringbom (2015) pp. 125–126; Rothwell and Stephens (2016) pp. 58–59; and Shaw (2017) p. 413.

The absence of a rule of customary international law reflecting the French approach, does not change the fact that port States often refrain from regulating so-called internal matters on board foreign-flagged ships. It is therefore of interest to assess whether wage and working conditions on board ships would be regarded as internal matters if such a rule existed.

The reasoning behind the concept of “internal matters” is that matters that are internal to the ship, and which do not affect the interests of the port State, should be left to the flag State’s jurisdiction.(19) Ringbom (2015) p. 123. It is important to note that what constitutes “internal matters” and “the interests of the port State”, in the eyes of the international community, is constantly evolving.(20) Molenaar (2014) para. 12. Molenaar uses “working and living conditions – including hours and wages – of crew on board foreign vessels that regularly call on ports in States where significantly different conditions apply”, as an example of these “evolving dominant views in the international community”. What constituted “internal matters” yesterday, may therefore not do so tomorrow.

If a rule of customary international law reflecting the French approach were to exist, both Ringbom and Marten assume that employment conditions would be regarded as “internal matters”.(21) Marten (2015) pp. 115–116; Ringbom (2015) pp. 123–124. According to Ringbom, this assumption does not apply to “requirements on working hours and other standards that have a direct bearing on the safe operations of the ship”.(22) Ringbom (2015) p. 124, note 29. Marten argues that “even if the internal affairs approach did represent a rule of international law, it has been confined to matters of internal discipline and minor crimes of a kind that would have almost no impact on the kind of safety and environmental measures that make up the bulk of contemporary shipping regulations”.(23) Marten (2015) p. 116.

Applying the French approach, Marten’s and Ringbom’s assumptions, which are supported by widespread practice of port States enforcing security and environmental standards on board foreign-flagged ships, can be explained by the fact that such standards in fact do affect “the interests of the port State”.(24) Compare Churchill and Lowe (1999) p. 67. Security and environmental standards on board foreign-flagged ships affect the port State’s interests, both by affecting security at sea and by affecting the environment along the coast, and because the port State may often be obliged by international instruments to enforce such standards.(25) See discussion in WTO Council for Trade in Services, Maritime Transport Services Background Note by the Secretariat (S/C/W/315), 2010, para. 106. This same logic can be applied to wage and working conditions, including both hours and wages, at least for ships that are operating in the port State’s territorial waters and exclusive economic zone and on its continental shelf.

Wage and working conditions on board foreign-flagged ships present in port do affect the port State’s interest. This is because such conditions on board may affect safety at sea along the coast, and because these ships are affecting wage and working conditions in the port State, inter alia by competing with other ships and seafarers working and living in the port State. Furthermore, port States are often to some degree obliged to exercise jurisdiction over such matters, under provisions concerning port State control established by international conventions on seafarers’ wage and working conditions.(26) WTO S/C/W/315 (2010) para. 106. See e.g. the Maritime Labour Convention art. V (1), (4) and (6) and regulation 5.2; and the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) art. 8 (4). For examples from EU law, see Directive 1999/95/EC of the European Parliament and of the Council of 13 December 1999 concerning the enforcement of provisions in respect of seafarers’ hours of work on board ships calling at Community ports art. 1; and Directive 2009/16/ EC of the European Parliament and of the Council of 23 April 2009 on port State control.

Some port States do already impose requirements related to wage and working conditions on board foreign-flagged ships. When Australia in 2008 introduced regulation of wage and working conditions on board foreign-flagged ships in Australian ports, there were few international objections.(27) Marten (2014) p. 195. This may be indicative of considerable international acceptance for such use of port State jurisdiction.(28) Ringbom (2015) p. 126. Even if a ban were to exist in customary international law against regulating internal matters on board ships, there would therefore be good reason to believe that it would still be possible to regulate wage and working conditions on board foreign-flagged ships operating in the port State’s waters or on the port State’s continental shelf.

2.2.3 Port entry conditions

In addition to applying its domestic laws to foreign-flagged ships present in port, the coastal State can regulate wage and working conditions on board foreign-flagged ships by regulating access to its ports. With the possible exception of ships in distress and situations of force majeure, foreign ships have no general right of access to port.(29) Molenaar (2014) paras. 7–9; Marten (2014) pp. 31–33; Marten (2015) pp. 114–115; Molenaar (2016) pp. 283–285. The right of the coastal State to regulate access to its ports is clearly expressed in the Nicaragua case, where the International Court of Justice stated that “[i]t is [...] by virtue of its sovereignty that the coastal State may regulate access to its ports”.(30)Case concerning military and paramilitary activities in and against Nicaragua, International Court of Justice, Judgment, 27 June 1986, ICJ Reports 1986 p. 14., para. 213.

The right to regulate access to port also entails the right to make both access to and presence in port subject to certain conditions.(31) Marten (2014) p. 201; Ringbom (2015) p. 119. See for instance the US Supreme Court’s ruling in Patterson v. Bark Eudora 190 U.S. 169 (1903), on p. 178: “the implied consent to permit them to enter our harbors may be withdrawn, and if this implied consent may be wholly withdrawn, it may be extended upon such terms and conditions as the government sees fit to impose”. This aspect of port State jurisdiction does not follow explicitly from any treaty, but it is assumed in, and follows implicitly from, several international instruments.(32) See discussion in WTO S/C/W/315 (2010) para. 106. See e.g. MLC art. V (1), (4) and (6) and regulation 5.2; MARPOL Convention art. 5 (4); and STCW Convention art. 8 (4). See also UNCLOS arts. 25 (2), 221 (3) and 255. One example is UNCLOS art. 25 (2), from which it follows implicitly that the coastal State may impose conditions for access to both its internal waters and ports outside its internal waters.

The right to impose conditions for access to port has in practice been used by port States to regulate matters beyond the ports and internal waters of the port State, and even far beyond its territorial waters. One example is the Court of Justice of the European Union’s (CJEU) ruling in the Air Transport Association of America case, where the CJEU accepted port State jurisdiction as a basis for making the EU’s scheme for greenhouse gas emission allowance trading apply to flights between EU Member States and third countries.(33) Case C-366/10, Air Transport Association of America and Others v. Secretary of State for Energy and Climate Change, ECLI:EU:C:2011:864. See also case C-286/90, Anklagemyndigheden v Peter Michael Poulsen and Diva Navigation Corp., ECLI:EU:C:1992:453, where the CJEU found that a European prohibition on transporting and storing salmon caught in the North Atlantic could be enforced against a vessel registered in Panama. The justification was that where any ship is in a port of a Member State, it is “generally subject to the unlimited jurisdiction of that State” (para. 29). Such use of port State jurisdiction is, however, not uncontroversial.(34) Marten (2014) p. 211. One reason for this is that the port State’s jurisdiction will always be competing with the flag State’s jurisdiction and the interests of the flag State, in particular when the ship is outside the territorial waters of the port State.(35) UNCLOS art. 92.

2.2.4 Cabotage

For ships transporting goods or passengers between domestic ports, port State jurisdiction may be applied in combination with the coastal State’s right to regulate maritime cabotage. The term “cabotage” refers to the transport of goods or passengers between domestic ports.(36) Robert C. Lane, “Cabotage”, in Encyclopedia of Public Inernational Law (vol. 8), Rudolf Bernhardt (ed.), Amsterdam: North-Holland, 1985, pp. 60–62, p. 61. The coastal State’s right to regulate maritime cabotage is based on its longrecognised right to reserve domestic shipping for national ships, which in turn is based on its territorial sovereignty.(37) Marten (2014) pp. 199–201; Ringbom (2015) pp. 147–148. See also Institut de Droit international, Règlement sur le régime légal des navires et de leurs équipages dans les ports étrangers, Session de La Haye – 1898, art. 5 (1) and (3): “L’Etat comme souverain a le droit […] [d]e réserver pour ses nationaux certaines branches de commerce, d’industrie ou de navigation”. A report published by Seafarers’ Rights International in 2018 documents that 91 United Nations Member States restricted foreign-flagged ships’ access to their domestic cabotage markets, which implies that 80% of the world’s coastlines were subject to such regulations.(38) Deidre Fitzpatrick et al. (eds.), Cabotage laws of the world, Seafarers’ Rights International, 2018, p. 10.

While port State jurisdiction is based on the ship’s presence in, or potential access to, port, the right to regulate cabotage covers the ship’s entire voyage from one domestic port to the other, even if this involves moving outside the internal, or even territorial, waters of the coastal State.(39) Lane (1985) p. 61 writes that this right to regulate cabotage also covers cabotage between colonial powers and their overseas territories. The right to regulate cabotage may therefore justify a more extensive use of port State jurisdiction when regulating ships performing cabotage.(40) Marten (2014) p. 201, Ringbom (2015) pp. 147–148.