The 1982 UN Convention[8] establishes rules to guide port States by setting reasonable standards for interventions, inspections and violations. Basically it says very little about port States jurisdiction. References to port States are primarily found in the articles dealing with marine pollution, see Articles 218-220 where it is assumed that ports are subject to sovereignty of the coastal State as they are parts of internal waters.
When provisions for port State control were included in different treaties, it was foreseen that their application would be of national concern. The port State control regime introduced by the Paris Memorandum of Understanding on Port State Control[9], adopted in 1982, changed this situation and constituted the first regional system in the world on port State control. The 1982 Paris MOU is an international agreement among 18 countries to establish a coordinated port State control system with respect to vessel safety and pollution prevention standards and equipment. One goal of the Paris MOU is for member States to inspect at least 25 percent of foreign merchant ships entering their respective ports each year.[10] If deficiencies that are clearly hazardous to safety, health or environment are discovered the ship will be detained and repairs will need to be completed before the ship can leave the port.[11] IMO has developed a global strategy for port State control and has incorporated in the procedures for such control the professional profile, training and qualification requirements and general operating guidelines for control officers. This is to ensure that, while the systems may be regional, the standards applied will be universal.
The procedures instituted by the Paris MOU initiative inspired the development of port State regimes around the world. Port State control regimes are now operated in Australia, the Asia-Pacific Region, the Black Sea, the Caribbean Region, the Indian Ocean, in the Mediterranean Region, Latin America and in West and Central Africa. More than 90 countries are involved in these different systems and there are initiatives underway to take the process further by formalising the transfer of information between the different systems.
The development of port State control for the merchant fleet has increased the number of inspections on international shipping and consequently standards have undoubtedly improved. Regimes on port State control are most effective if such regimes have common goals with the flag State and are initiatives that supplement and do not substitute flag State control. The principle of flag State responsibility over vessels continues to be the fundamental principle in international shipping.[12]
A limited role for port State intervention has been envisaged under the MARPOL 73/78 Convention regarding inspection of certificates and reporting and prosecution of certain violations.[13] Article 218 of the 1982 UN Convention allows for actions related to violations which took place on the high seas and other areas and was quite innovative at the time with respect to combating marine pollution. It provides indeed that a port State may also take legal proceedings against a vessel in one of its ports that is alleged to have discharged a polluting matter outside that State's territorial waters or Exclusive Economic Zone "in violation of applicable international rules and standards established through the competent international organization or general diplomatic conference". It should also be noted that when the 1993 Torremolinos Protocol[14] and the 1995 STCW-F Convention[15] will enter into force, these instruments might eventually contribute more effectively towards harmonizing the port State control regimes addressing safety of navigation and prevention of pollution with regimes addressing IUU fishing.
The approaches to fisheries-related port State control contemplated in Article 8.3 of the Code of Conduct[16], Article 23 of the 1995 UN Fish Stocks Agreement[17], Article V (2) of the 1993 FAO Compliance Agreement[18], paragraphs 52-64 of the IPOA on IUU fishing and several regional management agreements, suggest that the concept of port State control is highly relevant for fishery conservation and management.[19] There may therefore be an idea to take the now widely applicable regional MOUs on merchant shipping as a model and see if some regional approaches to fisheries can be developed.[20]
A coastal State has, with minor exceptions not relevant in this context, full jurisdiction within its internal waters. These waters, which include ports, are regarded as part of the land over which the coastal State has sovereignty. A number of port States already exercise individual port State control over foreign fishing vessels voluntarily in their ports, but the IUU fishing experience strongly suggests the need for a network of mandatory port State controls. The underlying principle formulated in Article 23(1) of the 1995 UN Fish Stocks Agreement is "the right and the duty" of a port State to take non-discriminatory measures[21] in accordance with international law, in order to "promote the effectiveness of sub-regional, regional and global conservation and management measures". Paragraph 2 specifies, inter alia, inspections of documents, fishing gear and catch on board which the port State may take on vessels voluntarily in port. The use of the wording " inter alia" indicates that other measures may well be taken. It should be noted that the port State may take action in its own right and it does not need a request from another State to do so. Thus, emphasis needs to be put not only on the "right" in Article 23 of the 1995 UN Fish Stocks Agreement, but also on the "duty".
Some States have already enacted into their domestic legislation provisions to give effect to the obligations set out in Article 23 of the 1995 UN Fish Stocks Agreement. It is, however, questionable if all the relevant port States will take relevant actions within a reasonable time frame. It is recognized that port State measures may constitute an effective tool to curb IUU fishing, especially if that is undertaken in the context of an international arrangement. Such an arrangement might be a binding agreement[22], a MOU which may be binding or not or other voluntary instruments such as the newly adopted IPOA on IUU.[23] The parties should determine the legal nature of the instrument.
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[8] United Nations Convention
on the Law of the Sea of 10 December 1982. [9] Further referred to as Paris MOU. [10] Section 1.3 of the Paris MOU. [11] See Section 3.7.1 of the Paris MOU. [12] Critics have claimed that the port State control imposes a burden on port States that should be borne by the flag State. But the key question is how the international society can deal with vessels flying the flag of States not taking that responsibility. [13] International Convention for the Prevention of Pollution from Ships 1973, as modified by the protocol of 1978 related thereto, Articles 5(2)-(3) and 6(2)-(5). [14] The Torremolinos International Convention for the Safety of Fishing Vessels, superseded by the 1993 Protocol. [15] International Convention on Standards of Training and Watch Keeping for Fishing Vessel Personnel, 1995. [16] FAO Code of Conduct for Responsible Fisheries. [17] Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks adopted in 1995. [18] Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas. adopted in 1993. [19] The Santiago de Compostela International Conference on Illegal, Unreported and Unregulated Fishing (25 and 26 November 2002) established that IUU fishing takes advantage of a number of factors including the lack of agreed, effective, compatible and stringent port State measures. The Conference further urged the international community to give further consideration to, among other things, use port State and market State measures to prevent IUU caught fish from entering markets, including bans on importation, landing and transhipment. [20] The Expert Consultation to Review Port State Measures to Combat IUU Fishing (4-6 November 2002) recognized that a possible MOU constitutes one of numerous tools to prevent, deter and eliminate IUU fishing and considered a range of elements that might be included in a regional MOU. [21] SEAFO (South East Atlantic Fisheries Organization) has incorporated these elements in Article 15 of the Convention, except the last sentence of paragraph 1 of Article 23 of the 1995 UN Fish Stocks Agreement where it refers to that “when taking such measures a port State shall not discriminate in form or in fact against the vessels of any State.” This was deliberately left out as parties felt that such discrimination could take place against Flag of Convenience (FOC) vessels. [22] In paragraph 53 of the Report of the Expert Consultation on IUU fishing, Sydney 15-19 May 2000 it is proposed that States elaborate a binding international agreement on port State controls to deter IUU fishing. This is not, however, included in the final version of the IPOA on IUU fishing. [23] In this paper the concept of a MOU is considered. Whether such a MOU should be binding or voluntary is of course for the States involved to decide. However, in order to counteract IUU fishing, a binding instrument would probably be more effective than a voluntary instrument. When elaborating on a MOU, other possible instruments such as a binding convention or a voluntary International Plan Of Action is not disregarded and the ideas and suggestions in this paper may easily be transformed into such instruments if so decided. |
