Port state jurisdiction: Toward comprehensive mandatory and global coverage

Ocean Development and International Law

Volumn 38, Issue 1-2, 2007, Pages 225-257

  Molenaar, Erik Jaap ^a  

^a UTRECHT UNIVERSITY   (Netherlands)

Author keywords

Fisheries; Jurisdiction; Marine pollution; Port state

Indexed keywords

FISHERY; INTERNATIONAL LAW; MARINE POLICY; MARINE POLLUTION; PORT;

EID: 33847244521     PISSN: 00908320     EISSN: 15210642     Source Type: Journal    
DOI: 10.1080/00908320601071520     Document Type: Article

References (262)

1. See D. König, "Port State Control: An Assessment of European Practice," in Marine Issues: From a Scientific, Political and Legal Perspective, eds. P. Ehlers, E. Mann-Borgese, and R.Wolfrum, (The Hague: Kluwer Law International, 2002), 37-54, at 38.
2. United Nations General Assembly (UNGA) Resolution 60/30, of Nov 29, 2005 (Doc. A/RES/60/30, of Mar 8, 2006), para. 47 and UNGA Resolution 60/31, of Nov. 29, 2005 (Doc. A/RES/60/31, of Mar. 10, 2006), para 36 and 42. See D. Vidas, "IUU Fishing or IUU Operations? Some Observations on Diagnosis and Current Treatment," in Bringing New Law to Ocean Water, eds. D. N. Caron and H. Scheiber (Leiden: Martinus Nijhoff, 2004), 125-144, who argued that the international law of the sea is unable to make much progress on dealing with IUU fishing and that more progress can be made through international trade law.
3. The Preamble to the Paris Memorandum of Understanding on Port State Control, Paris, 26 January 1982, in effect July 1, 1982, as regularly amended (Paris MOU), contains both elements. Text at www.parismou.org.
4. Montego Bay, 10 December 1982. In force Nov. 16, 1994. 1833 United Nations Treaty Series 396 and at www.un.org/Depts/los.
5. Paris MOU, supra note 3.
6. The Paris MOU is consistently referred to as a "regional administrative agreement." See E. J. Molenaar, "EC Directive on Port State Control in Context," 11 International Journal of Marine and Coastal Law 241-288 (1996), at 245
7. and "A Short History of the Paris MOU," at www.parismou.org.
8. For example, see sec. 3.5 and 8.1 of the Paris MOU, supra note 3, and sec. 3.2.2 and 8.1 of the Asia-Pacific Memorandum of Understanding on Port State Control in the Asia-Pacific Region, Tokyo, Dec. 1, 1993, in effect April 1, 1994, as regularly amended (Tokyo MOU). The ninth amendment became effective on Jan. 1, 2006. Text at www.tokyo-mou.org.
9. See art. 19a of Directive 95/21/EC of 19 June 1995 "on port State control of shipping" (the EU Port State Control Directive) (consolidated version at europe.eu.int/eur-lex), which confirms the competence of European Union (EU). Member States to impose more onerous enforcement measures than those required by the E.U. Port State Directive.
10. Case concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America), [1986] I.C.J. Rep., at. 111, para. 123.
11. See A. V. Lowe, "The Right of Entry into Maritime Ports in International Law," 14 San Diego Law Review 597-622 (1977), at 622
12. and Z. Oya Özçayir, Port State Control (London; LLP, 2001), at 79, but also at 70.
13. Geneva, 9 December 1923. In force 26 July 1926. 58 League of Nations Treaty Series 285 (1926-1927).
14. At the time of writing, there are approximately 40 Contracting Parties. See untreaty.un.org/ English/bible/englishinternetbible/partII/ treaty-20.asp.
15. Articles 13 and 14 of the Maritime Ports Convention. See also L. A. De La Fayette, "Access to Ports in International Law," 11 International Journal of Marine and Coastal Law 1-22 (1996), at 4, 17.
16. De La Fayette, supra note 13, at 4.
17. See E. J. Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (The Hague: Kluwer Law International: 1998), at 101.
18. IMO Assembly Resolution A.949(23), of 5 December 2003, at www.imo.org.
19. Ibid., para. 31.12-3.14.
20. See also H. Ringbom, "You Are Welcome, But... Places of Refuge and Environmental Liability and Compensation, with Particular Reference to the EU," Comité Maritime International Yearbook 208-233 (2004). Pursuant to art. 20 of Directive 2002/59/EC of 27 June 2002 "establishing a Community vessel traffic monitoring and information system and repealing Council Directive 93/75/EEC" (OJ 2002, L 208/10), EU Member States are required to develop plans for places of refuge.
21. R. R. Churchill and A. V. Lowe, The Law of the Sea, 3rd ed. (Manchester; United Kingdom: Manchester University Press, 1999), 63
22. and Molenaar, supra note 15, at 102. See art. 300 of the United Nations Convention on the Law of the Sea (LOS Convention).
23. See art. 24(1)(b), 25(3), 119(3), and 227 of the LOS Convention.
24. See art. 23(1) of the 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, New York, 4 August 1995. In force 11 December 2001, 34 International Legal Materials 1542 (1995) and at www.un.org/Depts/los and of the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, adopted by consensus by the Food and Agriculture Organization (FAO) Committee on Fisheries (COFI) on 2 March 2001 and endorsed by the FAO Council on 23 June 2001, para. 52, text at www.fao.org/fi.
25. See for example, the no-more-favorable-treatment (NMFT) clause contained in art. 5(4) of the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78), London, 2 November 1973, as modified by the 1978 Protocol (London, 1 June 1978) and as regularly amended, text at 1340 United Nations Treaty Series 61.
26. See for example, sec. 1.2 of the Paris MOU, supra note 3
27. and sec. 1.3 of the Tokyo MOU, supra note 7.
28. See art. XX of the 1994 General Agreement on Tariffs and Trade (GATT), text at www.wto.org.
29. Churchill and Lowe, supra note 18, at 65-69.
30. x (Study for DG Environment of the EC Commission, August 2000; text at europa.eu.int/comm/environment/enveco). Appendix 4, Legal Analysis: Prescription, Enforcement and Observance, at A4.38-A4.44, shows that United States jurisprudence on the aforementioned issue lacks uniformity.
31. See T. L. McDorman, "Port State Enforcement: A Comment on Article 218 of the 1982 Law of the Sea Convention," 28 Journal of Maritime Law and Commerce 305-322 (1997), at 309.
32. A. Mann, "The Doctrine of Jurisdiction in International Law," 111 Recueil des Cours de l'Académie de Droit International 9-162 (1964), at 83.
33. Judge Fitzmaurice in the Barcelona Traction case [1970] I.C.J. Rep., at 105.
34. Ibid.
35. See also the "Final Report of the International Law Association (ILA) Committee on Extraterritorial Jurisdiction," presented at the 1996 Helsinki ILA Conference, Report of the Sixty-Seventh Conference, 520-524.
36. See below "National CDEM Standards Applied to Foreign Vessels in Port."
37. See Molenaar, supra note 15, at 79.
38. It is noteworthy that the "Final Report of the ILA Committee on Extraterritorial Jurisdiction," note 28, at 524, acknowledged that internationally agreed interests "may serve as a legitimizing factor."
39. Churchill and Lowe, supra note 18, at 64, also referred to the possibility of arrest in civil actions or actions in rem against the ship itself.
40. O. Schachter, International Law in Theory and Practice (Dordrecht: Martinus Nijhoff, 1991), at 257.
41. See, for example, the limited enforcement powers in the exclusive economic zone (EEZ) pursuant to art. 220(5) and (6) of the LOS Convention.
42. See the discussion in infra note 61 and accompanying text.
43. See art. 21(2) and 211(5) of the LOS Convention.
44. For example, sec. 15(1) of Annex VI to MARPOL 73/78, supra note 21.
45. See Molenaar, supra note 15, at 110-120.
46. See also L. S. Johnson, Coastal State Regulation of International Shipping (Dobbs Ferry: Oceana, 2004), at 44. Note also that the Joint Ministerial Declaration issued at the Second Joint Ministerial Conference of the Paris and Tokyo Memoranda of Understanding on Port State Control, Vancouver, 4 November 2004 (text at www.parismou.org), at 11:, para. 4.7 acknowledges "the prerogative of every State to exercise port State control."
47. For example, Regulation XI-2/2(4) of SOLAS 74 (on maritime security), para. B/4.34 of the International Ship and Port Facility Security Code (ISPS Code; IMO Doc. SOLAS/CONF.5/34, of 17 December 2002); Article 1(3) of the International Convention on the Control of Harmful Anti-Fouling Systems on Ships, London, 5 October 2001, not in force, IMO Doc. AFS/ CONF/26, of 18 October 2001; and Article 2(3) of the International Convention for the Control and Management of Ships' BallastWater and Sediments, London, 13 February 2004, not in force, IMO Doc. BWM/CONF/36, of 16 February 2004. Thewords "Subject to the provisions of international law" in Regulation 21(8)(2) of Annex I to MARPOL 73/78, supra note 21, is also regarded by some contracting parties as confirming a port state's residual jurisdiction.
48. See text in supra note 21.
49. Which appears to be shared by Anderson, supra note 24, at 342.
50. See, for instance, L. Schiano di Pepe, "Port State Control as an Instrument to Ensure Compliance with International Marine Environmental Obligations," in International Marine Environmental Law: Institutions, Implementation and Innovations, ed. A. Kirchner (The Hague: Kluwer Law International, 2003), 137-156, at 144, in the context of a discussion of art. 6(2) and (5) of MARPOL 73/78. Note that such an interpretation could also be inspired by IMO Assembly Resolution A.973(24), of 1 December 2005, "Code for the Implementation of Mandatory IMO Instruments," which makes no reference to the LOS Convention in para 50-58. References to the LOS Convention were deleted from earlier drafts of the Code "as it was felt that caution should be exercised in the referencing of instruments outside the purview of IMO" IMO Doc. FSI 13/ 23, of 31 March 2005, at 37, para 10.31.
51. Oil Pollution Act of 18 August 1990, Pub. L. No. 101-380, 104 Stat. 484 (1990), in 33 United States Code §§ 2701-2761 and 46 United States Code §§3701-3718.
52. See also Johnson, supra note 38, at 44, who observes that in 2003 at the IMO MEPC the United States made a statement "confirming the right of port States to adopt more stringent measures than are in MARPOL."
53. Agreement concerning Specific Stability Requirements for Ro-Ro Passenger Ships Undertaking Regular Scheduled InternationalVoyages Between or to or from Designated Ports in NorthWest Europe and the Baltic Sea, Stockholm 28 February 1996. In force 1 April 1997. IMO Doc. Circular Letter No. 1891, of 29 April 1996. See the discussion in Molenaar, supra note 15, at 117-119.
54. Regulation (EC) No. 417/2002 of 18 February 2002 "on the accelerated phasing-in of double hull or equivalent design requirements for single hull oil tankers, as amended by Regulation (EC) No. 1726/2003 of 22 July 2003" (consolidated version available at Europe.eu.int/eur-lex), art. 1. See also the overview of state practice in The EU Ship Emissions to Air Study, supra note 24 at Appendix 4, A4.46-A4.49.
55. MARPOL 73/78, supra note 21.
56. These amendments are included in IMO Resolution MEPC.111(50), of 4 December 2003. Note that whereas the amendments to Annex I entered into force on Apr. 5, 2005, the amended EU Regulation entered into force on Oct. 21, 2003 (OJ 2003, L 249/1). See also V. Frank, "Consequences of the Prestige Sinking for European and International Law," 20 International Journal for Marine and Coastal Law 1-64 (2005), at 21.
57. Council Directive 2005/33/EC of 6 July 2005 amending Directive 1999/32/ EC of 26 April 1999 "relating to a reduction in the sulphur content of certain liquid fuels and amending Directive 93/12/EEC" (OJ 2005, L191/ 59).
58. See ibid. art 4a(4) and (5) and 4b(1).
59. x emission control areas. It is submitted that unilateral fuel requirements like these affect the objective of global uniformity in the regulation of international shipping (which is the rationale behind the exception in art. 21(2) of the LOS Convention) for the reason that compliance seems to require substantial and costly adjustments and such measures should therefore be treated analogous with CDEM standards.
60. See also the analysis in The EU Ship Emissions to Air Study, supra note 24, at Appendix 4, A4.20-A4.22.
61. See COM(2002) 595 final, of 20 November 2002, "Communication from the Commission to the European Parliament. A European Union strategy to reduce atmospheric emissions from seagoing ships," vol. I, at 18. By means of IMO Doc. MEPC 53/4/4, of 15 April 2005, several EU Member States urged a revision of Annex VI to MARPOL 73/78 through the IMO.
62. Case No. M 8471-03, Miljönämnden i Helsingborgs kommun./HH-ferries AB m fl, Judgement of 24 May 2006.
63. Case No. M 8471-03, supra note 52, at 19-20, and based on information provided by G. Holmgren, City of Helsingborg, May 2006.
64. See, for example, preambular para. 11, 14, and 15 of Council Directive 1999/32/EC and COM(2005) final, Communication from the Commission, "Third package of legislative measures on maritime safety in the European Union," at 7, where it says "The Commission fully recognizes the added value of international action." Oya Özcayir, supra note 10, at 4-5 takes the view that the EU has decided to be a "force of change" within the IMO on this issue.
65. See also H. Ringbom, "The EU's Exercise of Port and Coastal State Jurisdiction," paper presented at a seminar held at the University of Tromsø, Norway, on Feb. 23, 2006.
66. Wet buitenlandse schepen, Act of 6 June 2004, Staatsblad 2004, 349 and 553. See also NILOS Newsletter no. 22, at 3, text at www.law.uu/nilos.
67. See V. Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level, PhD thesis, Utrecht University, 2006.
68. Sellers v. Maritime Safety Inspector, Case no. CA104/98, Judgment of 5 November 1998, see. 5 and 17.
69. See also Churchill and Lowe, supra note 18, at 68-69.
70. Sellers v. Maritime Safety, supra note 57, at 17.
71. Ibid., at 13 and 16-17.
72. J. S. Davidson, "Freedom of Navigation on the High Seas: Sellers v. Maritime Safety Inspector," 14 International Journal of Marine and Coastal Law 435-439 (1999), at 438
73. D. Devine, "Port State Jurisdiction: A Judicial Contribution from New Zealand," 24 Marine Policy 215-219 (2000), at 218
74. and Oya Özçayir, supra note 10, at 91. The EU Ship Emissions to Air Study, supra note 24, at Appendix 4, A4.42-A4.43, is more cautious and eventually concedes this is not necessarily a legal issue.
75. Churchill and Lowe, supra note 18, at 276
76. and T. L. McDorman, "Regional Port State Control Agreements: Some Issues of International Law," 5 Ocean and Coastal Law Journal 207-225 (2000), at 223. It is unclear whether or not the safeguards in sec. 7 of part XII of the LOS Convention as well as the prompt release procedure under art. 292 of the LOS Convention are applicable. McDorman, at 223, argued they are not. With regard to art. 292, it is noteworthy that art. 226(1)(a) refers to inspections based on art. 216, 218, and 220, while neither art. 218 nor 220(1) deal with noncompliance with CDEM standards in port.
77. See, for example, subsections 3.9.1-3.9.2, 3.10.1-3.10.4 and 3.11 of the Paris MOU, supra note 3.
78. For example, art. 9 and 9a of the E.U. Port State Directive, supra note 8, and art. 219 of the LOS Convention.
79. See supra notes 7 and 8, and accompanying text.
80. Section 3.15 of the Paris MOU, supra note 3
81. and art. 16 of the E.U. Port State Directive, supra note 8.
82. The survey was carried out by the author as part of a consultancy commissioned by the Netherlands Ministry of Transport, Public Works and Water Management.
83. International Convention for the Safety of Life at Sea, London, 1 November 1974, in force 25 May 1980, 1184 U.N.T.S. 2. The states are Cyprus, Estonia, Germany, Latvia, Lithuania, and Sweden.
84. Latvia and Lithuania.
85. See The EU Ship Emissions to Air Study, supra note 24, at Appendix 4, A4.49 and A4.55.
86. See also note 77 below and accompanying text for the practice of the United States, which may relate to compliance with national CDEM standards in port or in its own EEZ.
87. 33 United States Code §2716(a)(1) and 46 United States Code § 3703(a).
88. 33 United States Code §2716(a)(2) and 46 United States Code §§ 3715(a) and 3703(a). For a discussion see Molenaar, supra note 15, at 376-387.
89. Resolution MEPC.52(32). See also information at www.imo.org and supra note 21.
90. See IMO Doc. MEPC 35/2/1, of 14 January 1994, at 2.
91. Ibid.
92. See supra notes 34 and 35 and accompanying text.
93. See 33 United States Code §2716a and 46 United States Code §3718.
94. See supra note 34 and accompanying text.
95. Fish Stocks Agreement, supra note 20.
96. Ibid., art. 23(2) and (3).
97. Para. 3.3.1 and 56 of the IPOA on IUU Fishing, supra note 20.
98. See E. J. Molenaar, "Participation, Allocation and Unregulated Fishing: The Practice of Regional Fisheries Management Organizations," 18 International Journal of Marine and Coastal Law 457-480 (2003).
99. Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, Rome, 24 November 1993, in force 24 April 2003, 33 International Legal Materials 969 (1994) and at www.fao.org/legal.
100. Code of Conduct for Responsible Fisheries, adopted by the Twenty-eighth Session of the FAO Conference, Rome, 31 October 1995, text at www.fao.org/fi, sec. 8.3.
101. See below "Illegal Discharges on the High Seas."
102. Anderson, supra note 24, at 338-342.
103. This is argued by F. Orrego Vicuña, The Changing International Law of High Seas Fisheries (Cambridge: Cambridge University Press, 1999), at 261 and 264.
104. "Report of the Expert Consultation to Review Port State Measures to Combat Illegal, Unreported and Unregulated Fishing, Rome 4-6 November 2002," FAOFisheries Rep. no. 692 (2002), at Appendix E, 14.
105. Model Scheme on Port State Measures to Combat Illegal, Unreported and Unregulated Fishing, Annex E to the "Report of the Technical Consultation to Review Port State Measures to Combat Illegal, Unreported and Unregulated Fishing. Rome, 31 August-2 September 2004," FAO Fisheries Rep. no. 759 (Rome: FAO, 2004), endorsed by COFI at its Twenty-sixth Session in March 2005, "Report of the twenty-sixth session of the Committee on Fisheries. Rome, 7-11 March 2005," FAO Fisheries Rep. no. R780 (2005), at para. 25.
106. See the practice by Chile, infra note 112 belowand accompanying text.
107. See also the practice discussed in De La Fayette, supra note 13
108. and the practice by Norway mentioned by Anderson, supra note 24, at 341-342.
109. See also the practice by various states noted in Promoting Responsible Ports, High Seas Task Force Final Report (2006), available at www.highseas.org.
110. See the practice by Chile infra notes 110 and 111.
111. See R. G. Rayfuse, Non-Flag State Enforcement in High Seas Fisheries (Leiden/Boston: Martinus Nijhoff, 2004), at 336.
112. It is interesting to note that at the 4th Meeting (Mar. 1999) of the negotiatons on the Convention on the Conservation and Management of the Fishery Resources in the South East Atlantic Ocean (Windhoek, 20 April 2001, in force 13 April 2003, 41 International Legal Materials 257 (2002) and at www.fao.org/Legal/treaties), a proposal by the United States that would have allowed port states to "detain the vessels for such reasonable period of time as is necessary for enforcement purposes" was not accepted. Record of Proceedings, Attachment 10, "US Proposal on Article 14."
113. Anklagemyndigheden(Public Prosecutor) v. P.M. Poulsen and Diva Navigation Corp, Case C-286/90, Judgment of 24 November 1992, (1992) ECR I-6019, para. 28-34.
114. See also R. J. Long and P. A. Curran, Enforcing the Common Fisheries Policy (Oxford: Fishing News Books, 2000), at 87-91 and 128-130.
115. See Molenaar, supra note 15, at 183-184.
116. See also Oya Özçayir, supra note 10, at 85.
117. See Molenaar, supra note 15, at 467, no 21, and 491-492.
118. See McDorman, supra note 25, at 315
119. and Molenaar, supra note 15, at 103.
120. T. Keselj, "Port State Jurisdiction in Respect of Pollution from Ships: The 1982 United Nations Convention on the Law of the Sea and the Memoranda of Understanding," 30 Ocean Development and International Law 127-160 (1999), at 131-135, also attempted to resolve this ambiguity.
121. Oya Özçayir, supra note 10, at 80, regarded art. 211(3) as the legislative basis for art. 218.
122. See Molenaar, supra note 15, at 109-110.
123. Recent amendments to the Netherlands Prevention of Pollution from Ships Act (PPSA; Wet voorkoming verontreiniging door schepen, of 14 December 1983, Staatsblad 683 (1983)) allow enforcement based on art. 218 (Act of 20 January 2005, Staatsblad 49 (2005). For a brief discussion, see NILOS Newsletter no. 22 (May 2005), at 1-3, text at www.law.uu.nl/nilos.
124. As of Jan. 1, 2006, there were 149 parties to the LOS Convention. See www.un.org/Depts/los.
125. Directive 2005/35/EC of 7 September 2005 "on ship-source pollution and on the introduction of sanctions, including criminal sanctions, for pollution offences" (OJ 2005, L 255/11).
126. See in particular, art. 3(1)(e), 3(2), 4, and 6(1). This should be read in conjunction with Council Framework Decision 2005/667/JHA of 12 July 2005 "to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution" (OJ 2005, L 255/164). See in particular, art. 7(1)(g).
127. See McDorman, supra note 25, at 318-319.
128. This question is answered affirmatively by McDorman, supra note 25, at 307 and 320-322.
129. Ibid., at 220-221, comes to this conclusion.
130. Directive 2005/35/EC, supra note 99, art. 7(1)(f).
131. GATT, supra note 23.
132. WTO Dispute No. WT/DS193: Chile - Measures Affecting the Transit and Importation of Swordfish; complainant: EC, at www.wto.org.
133. These were: Australia, Canada, Ecuador, India, Iceland, Norway, and the United States.
134. Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile v. European Community), Case No. 7 of the International Tribunal for the Law of the Sea (ITLOS), pending, see www.itlos.org.
135. By Order 2005/1, of 29 December 2005, the ITLOS extended the time limits for the suspension of the proceedings to Jan.1, 2008, acknowledging that both Chile and the EC reserve their right to revive the proceedings prior thereto. See www.illos.org.
136. In Doc. WT/DS193/3/Add.3, of 22 December 2005, the EC informed the chair of the WTO Dispute Settlement Body that Chile and the EC had agreed to maintain the suspension of the process for the constitution of the Panel and that the EC reserved its right to revive the proceedings at any time. See www.wto.org.
137. Ley General de Pesca y Acuicultura, no. 18.892, text at www.subpesca.cl.
138. Aplicación del Artículo 165 de la Ley General de Pesca y Acuicultura especie Jurel, D. S. n. 361-99, text at www.subpesca.cl.
139. Aplicación del artículo 165 de la Ley General de Pesca y Acuicultura a la especie Pez Espada, D. S. n. 598-99, text at www.subpesca.cl.
140. Aprueba Política de uso de Puertos Nacionales por Naves Pesqueras de Bandera Extranjera que Pescan en Alta Mar Adyacente, D. S. n. 123-04, text at www.subpesca.cl.
141. In Fishing News International, April 2005, at 44 it is noted that the Decree has been enforced only since October 2004.
142. 50 Code of Federal Regulations §300.107(c)(iii). Convention on the Conservation of Antarctic Marine Living Resources, Canberra, 20 May 1980, in force 7 April 1982, 19 International Legal Materials 837 (1980), at www.ccamlr.org.
143. "Harvesting of Dissostichus eleginoides in Areas Outside of Coastal State Jurisdiction Adjacent to the CCAMLR Area in FAO Statistical Areas 51 and 57." See www.ccamlr.org.
144. See below "Lacey Act Approaches."
145. Orrego Vicuña, note 87, at 265, rejected this view.
146. See, however, A. Serdy, "See You in Port - Australia and New Zealand as Third Parties in the Dispute Between Chile and the European Community over Chile's Denial of Port Access to Spanish Vessels Fishing for Swordfish on the High Seas," 3 Melbourne Journal of International Law 79-119 (2002), at 94-96.
147. See art. 3 of Decree no. 361-99, supra note 110
148. and art. 2 of Decree No. 598-99, supra note 111.
149. See Serdy, supra note 116, at 98-104.
150. United States - Import Prohibition of Certain Shrimp and Shrimp Products; Panel Report, WTO Doc. WT/DS58/R of 15 May 1998, para. 7.43, 7.55, and 9.1; and Appellate Body Report, WTO Doc. WT/DS58/AB/A, of 12 October 1998, at para. 186. Texts at www.wto.org.
151. See WTO Doc. WT/DS58/RW of 15 June 2001 and WTO Doc. WT/DS58/AB/RW of 22 October 2001, at para. 135-138. Texts at www.wto.org.
152. De La Fayette, supra note 13, at 20.
153. Ibid.
154. See generally, www.nafo.org.
155. Framework Agreement for the Conservation of the Living Marine Resources on the High Seas of the Southeast Pacific, Santiago, 14 August 2000, not in force (the Galapagos Agreement). See Law of the Sea Bulletin, 70-78, no. 45 (2001) and www.oceanlaw.net/texts/index.htm. At the time of writing, Chile, Peru, and Ecuador had ratified the Agreement, but Colombia had indicated that it was unable to ratify, while not excluding this for the future. On Nov 27, 2003, the four states adopted a Modification Protocol which replaces art. 19(1) of the Galapagos Agreement with the following provision: "This [Galapagos Agreement] shall enter into force on the thirtieth day after the date of deposition of the instrument of ratification by three of the Coastal States." The Modification Protocol also requires three ratifications for entry into force. While Chile ratified the Protocol on Mar. 22, 2004, and Ecuador on June 25, 2004, Peru still had to ratify at the time of writing. Information kindly provided by G. Pereira, CPPS.
156. See, for instance, ibid., the Preamble and art. 5(1)(E) and 12. Also note the definition of "other interested States" in art. 1(3) and the right pursuant to art. 16(3) of these states to accede to the Galapagos Agreement. The relevant provisions of the Fish Stocks Agreement, supra note 20, are art. 7(2) and 8(3).
157. See WTO Doc. WT/DS193/3, of 6 April 2001, available at www.wto.org.
158. As the Netherlands flagged Maartje Theodora commenced fishing for horse mackerel in the high seas off Chile in late 2005, this will also be a concern of the EC.
159. For information on this initiative, see www.southpacificrfmo.org.
160. Paris MOU, supra note 3. In the near future, the minimum percentage of inspections will be replaced by a risk-based approach.
161. In particular, Rule 10 of the Convention on the International Regulations for Preventing Collisions at Sea, London, 20 October 1972, in force 15 July 1977, as regularly amended, U.K.T.S. 77 Cmnd. 6962.
162. The 2002 ISM Code is available at www.imo.org.
163. The International Convention on Civil Liability for Oil Pollution Damage, Brussels, 29 November 1969, in force 19 June 1975, 973 U.N.T.S. 3, which was replaced by the 1992 Protocol, London, 27 November 1992, in force 30 May 1996.
164. See Provisional Record No. 25 of the International Labour Conference's Ninety-Third Session (2005). The draft Convention is included in Provisional Record No. 19, at 96-121.
165. Convention on the Protection of the Underwater Cultural Heritage, Paris, 1 November 2001, not in force, 41 International Legal Materials 40 (2002) and at www.unesco.org.
166. WHO Doc. WHA58.3, of 23 May 2005, text at www.who.int/csr/ihr.
167. See art. 3(4) and 43 of the 2005 IHR, supra note 134
168. and see WHO media release of May 23, 2005, at www.who.int/csr/ihr.
169. Convention for the Prohibition of Fishing with Long Drift-nets in the South Pacific,Wellington, 23 November 1989, in force 17 May 1991, 29 International Legal Materials 1449 (1990) and at www.oceanlaw.net. See art. 3(2)(d).
170. See also T. Løbach, Port State Measures, OECD Doc. AGR/FI/IUU (2004) 9, of Apr. 8, 2004.
171. FAO Port State Model Scheme, supra note 89.
172. See the 2004 Vancouver Declaration, note 38, at 39, action III(f)(6).
173. See supra note 133 and accompanying text.
174. While parts of SOLAS 74, supra note 67, apply to fishing vessels, many do not. At the time of writing, the International Convention for the Safety of Fishing Vessels, Torremolinos, 2 April 1977, its 1993 Protocol, and the International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel, London, 7 July 1995, had not yet entered into force. Note that Council Directive 97/70/EC, of 11 December 1997, "setting up a harmonised safety regime for fishing vessels of 24 metres in length and over" (consolidated version at europe.eu.int/eur-lex) applies the standards in the 1993 Torromolinos Protocol also to ships flying the flag of non-EU Member States. See in particular preambular para. 8, 13, and 16 and art. 1(1), 3(5), and 7.
175. The 2004 Vancouver Declaration, note 38, at 7, para. 2.14, notes that IUU fishing has "safety risk implications."
176. According to IMO Doc. MSC/Circ.1111, of 7 June 2004, Annex 1, at 5, keeping such records is required pursuant to Regulations XI-2/9.2.1.3, XI-2/9.2.1.4 and XI-2/9.2.1.5 of SOLAS 74, IMO Doc. SOLAS/CONF.5/32, of 12 December 2002. This is confirmed in para 4.37 and 4.38 of Part B of the ISPS Code, supra note 39.
177. IPOA on IUU Fishing, supra note 20.
178. A database concerning relevant port state measures was recommended, FAO Fisheries Rep. no. 759, supra note 89, at para. 27; however, COFI in Mar. 2005 left the funding of this database unresolved.
179. See FAO Fisheries Rep. no. R780, supra note 89, at para. 31.
180. See Doc. HSTF/06, of 25 February 2005, "Promoting responsible port States," Doc. HSTF/10, of 14 March 2005, "First Meeting of the High Seas Task Force. Summary of Outcomes," at 3
181. and Promoting Responsible Ports, supra note 90, texts at www.high-seas.org.
182. Such safeguards are incorporated in sec. 7 to part XII of the LOS Convention; sec. 3.10.2, 3.14, and 3.16 of the Paris MOU, supra note 3, and the Paris MOU Review Panel, info at www.parismou.org; sec. 2.4 of IMO's PSC Procedures (IMO Assembly Resolution A.787(19), of 23 November 1995, "Procedures for Port State Control," as amended by IMO Assembly Resolution A.882(21), of 25 November 1999); and para. 3.1-3.10 and Annex D of the FAO Port State Model Scheme, supra note 89.
183. See Churchill and Lowe, supra note 18, at 64.
184. For a contrary view, see Oya Özçayir, supra note 10, at 88.
185. Directive 2000/59/EC, of 27November 2000, "on port reception facilities for ship-generated waste and cargo residues" (OJ 2000 L 332/81). See art. 7.
186. See F. Orrego Vicuña, "Port State Jurisdiction in Antarctica: A New Approach to Inspection, Control and Enforcement," in Implementing the Environmental Protection Regime for the Antarctic, ed. D. Vidas (Dordrecht: Kluwer Academic, 2000), 45-69.
187. IPOA on IUU Fishing, supra note 20.
188. For example, CCAMLR Conservation Measure 10-07 (2005) "Scheme to promote compliance by non-Contracting Party vessels with CCAMLR conservation measures," para. 4 and 5, see www.ccamlr.org; art. 42(1) of the Northwest Atlantic Fisheries Organization, Conservation and Enforcement Measures, at www.nafo.org; and the International Commission on the Conservation of Atlantic Tunas, Recommendation 02-23 "to establish a list of vessels presumed to have carried out illegal, unreported and unregulated fishing activities in the ICCAT Convention area," at para. 1, at www.iccat.es.
189. See, for example, art. 6 and 10 and Annex II to Directive 2002/59/EC, supra note 17.
190. Catch Documentation Scheme for Dissostichus spp. (CDS), at para. 15. See www.ccamlr.org.
191. See also CCAMLR Resolution 17/XX "Use ofVMSand other Measures for theVerification of CDS Catch Data for Areas Outside the Convention Area, in particular, in FAO Statistical Area 51."
192. FAO Port State Model Scheme, supra note 89.
193. Article 1(d) of the Chilean Decree D. S. No. 123, of 3 May 2004, supra note 112. However, the wording of this provision seems to suggest that more is required than providing VMS data.
194. See CCAMLR Circular (COMM CIRC) 04/83, of 14 September 2004. On file with the author.
195. Council Regulation (EC) No. 1035/2001 "establishing a catch documentation scheme for Dissostichus spp," (consolidated version available at Europe.en.int/eur-lex), see art. 13(2).
196. CCAMLR Conservation Measure 10-03 (2005) "Port inspections of vessels carrying tooth- fish," at para. 2, at www.ccamlr.org.
197. Council Regulation (EC) No. 601/2004 of 22 March 2004 "laying down certain control measures applicable to fishing activities in the area covered by the Convention on the conservation of Antarctic marine living resources and repealing Regulations (EEC) No 3943/90, (EC) No 66/98 and (EC) No 1721/1999" (OJ 2004, L 97/16). See art. 27(2).
198. See art. 28f of Council Regulation (EEC) No. 2847/93 of 12 October 1993 "establishing a control system applicable to the common fisheries policy" (consolidated version available at Europe.eu.int/eur-lex).
199. The case is based on Sea Fishing (Enforcement of Community Control Measures) Order 2000, SI 51-2000 and text at www.opsi.gov.uk, art. 3(2) and 4(3). Information provided by R. Irish, DEFRA, Apr. 2006.
200. On this issue, see also Anderson, supra note 24, at 330.
201. These include Latvia and Lithuania (based on the survey referred to in supra note 66). See also Helsinki Commission Recommendation 19/14, of 26 March 1998, "A Harmonized System of Fines in Case a Ship Violates Anti-Pollution Regulations," text at www.helcom.fi, which stipulates in para. I(1) of the Attached Criteria that violations of obligations to keep the Oil and/or Cargo Record Books or not having signatures thereto are regarded as violations of MARPOL 73/78, supra note 21,
202. and the Convention on the Protection of the Marine Environment of the Baltic Sea Area, Helsinki, 9 April 1992, in force 17 January 2000, text at www.helcom.fi.
203. The Netherlands, based on art. 11(3) of the 1983 PPSA, supra note 97, and art. 225(2) of the 1881 Penal Code (Wetboek van Strafrecht).
204. See, for instance, the United States v.Royal Caribbean Cruises Ltd. (1998-1999) case referred to in IMO Doc. MEPC 51/14, of 26 January 2004, at 2. Also discussed by Molenaar, supra note 15, at 466-467.
205. 16 United States Code §3371 et seq. The "prohibited acts" are set out in 16 United States Code §3372. For a general overview, see R. S. Anderson, "The Lacey Act: America's Premier Weapon in the Fight against Unlawful Wildlife Trafficking," text at animallaw. info/articles/ arus16publlr27.htm.
206. See the broad definition of "import" in 16 United States Code, sec. 3371(b), which would also cover transshipments. No consideration seems to have been given to the "innocence" of the vessel's presence.
207. 16 United States Code sec. 3372(a)(3) seems to extend the locus of the overlying violation to the possession of such fish within the "special maritime and territorial jurisdiction of the United States" as defined in 18 United States Code sec. 7. This may include the EEZ of the United States and possibly even the high seas. However, P. A. Ortiz, "An Overview of the U.S. Lacey Act Amendments of 1981 and A Proposal for a Model Port State Fisheries Enforcement Act," draft document prepared for the High Seas Task Force (November 2005), see www.high-seas.org, at 17 argues that "a showing that the vessel entered the U.S. continguous zone (...) would be sufficient to show an import under the Lacey Act." For a party to the LOS Convention, which the United States is not, this would be problematic in view of art. 33 of the LOS Convention. Also, the definition of "import" in the Model Port State Fisheries Enforcement Act, set out by Ortiz, at 30, explicitly refers to the EEZ, which would be problematic in view of art. 56 of the LOS Convention.
208. Ortiz, supra note 169, at 7-8 and 13.
209. Ibid., at 6-7.
210. Ibid., at 12.
211. See supra note 154 and
212. see ibid., at 24.
213. The Sydney Draft is contained in AppendixDto the Report of the Expert Consultation on Illegal, Unreported and Unregulated Fishing Organized by the Government of Australia in Cooperation with FAO, Sydney, Australia, 15-19 May 2000, Doc. AUS:IUU/2000/3, on file with author.
214. See Doc. HSTF/06, supra note 146
215. Doc. HSTF/10, supra note 146, at 3,
216. and the draft document prepared by Ortiz, supra note 169.
217. D. H. Anderson, "The Roles of Flag States, Port States, Coastal States and International Organisations in the Enforcement of International Rules and Standards Governing the Safety of Navigation and the Prevention of Pollution from Ships Under the UN Convention on the Law of the Sea and Other International Agreements," 2 Singapore Journal of International and Comparative Law 557-578 (1998), at 558, noted that the collision rules in sec. 424 of the Merchant Shipping Act 1894 of the United Kingdom were applicable to foreign ships priovided their flag state had given its prior consent.
218. See Rayfuse, supra note 92, at 330, and, for example. ICCAT Recommendation 97-11, at para. (2), see www.iccat.es.
219. See, in particular, art. 25(2) and 218(1) of the LOS Convention as opposed to art. 94, 211(2), and 217. One of the exceptions is art. 219.
220. See art. 5 of MARPOL 73/78, supra note 21
221. art. 11 of the Anti-Fouling Convention, supra note 39
222. art. 9 of the Ballast Water Management Convention, supra note 39
223. and Reg. XI-2/9(1) of SOLAS 74, supra note 143.
224. Pursuant to art. 4(2) of MARPOL 73/78, supra note 21, port states are to defer the matter to the flag state.
225. Paris MOU, supra note 3.
226. See also IMO's PSC Procedures, supra note 147.
227. While 14 Maritime Authorities participated in the Paris MOU from the outset, this had increased to 22 by Jan 1, 2006. Five of these were from nonmembers of the EU Canada, Croatia, Iceland, Norway, and the Russian Federation. See www.parismou.org.
228. These are: Asia and the Pacific (Tokyo MOU, supra note 7)
229. Latin America (Acuerdo de Viña del Mar, at. www.acuerdolatino.int.ar)
230. Caribbean (CaribbeanMOU, at www.caribbeanmou.org)
231. West and Central Africa (Abuja MOU, no Web site)
232. the Black Sea region (Black Sea MOU, at www.bsmou.org)
233. the Mediterranean (Mediterranean MOU, at www.medmou.org)
234. the Indian Ocean (Indian Ocean MOU, at www.iomou.org)
235. and the Arab States of the Gulf (Riyadh MOU, no Web site).
236. See inter alia Doc. ATCM XXVI/IP/44 (2003), "Port State Control: An Update on International Law Approaches to Regulate Vessels Engaged in Antarctic Non-Governmental Activities. Submitted by the Antarctic and Southern Ocean Coalition (ASOC)."
237. See E.U. Port State Control Directive, supra note 8.
238. See Molenaar, supra note 6, at 246. Note, however, that the IMO Assembly approved at its 24th Session (2005) Agreements between the IMO and various regional merchant shipping PSC regimes.
239. See sec. 2.3 of the Paris MOU, supra note 3
240. and sec. 2.4 of the Tokyo MOU, supra note 7.
241. See Rayfuse, supra note 92
242. and see Promoting Responsible Ports, supra note 90.
243. Rayfuse, supra note 92, at 336.
244. For example, para. (3) and (7) of the Indian Ocean Tuna Commission Resolution 05/03 "Relating to the Establishment of an IOTC Programme of Inspection in Port," text available at www.iotc.org.
245. FAO Port State Model Scheme, supra note 89.
246. "Report of the Expert Consultations," supra note 88.
247. See FAO Fisheries Rep. no. 759, supra note 89, at 4, para. 15-19.
248. See FAO Fisheries Rep. no. R780, supra note 89, at xi and 4-5.
249. See Doc. HSTF/10, supra note 146, at 3, by which HSTF members agreed to adopt anMOU on Port State Control by 2006.
250. This is not stated in Promoting Responsible Ports, the HSTF Final Report, supra note 89, at para. 83.
251. Available at www.neafc.org.
252. See the Report of the Extraordinary Meeting of Permanent Committee on Control and Enforcement (PECCOE), Apr. 11, 2005, at 1-3
253. Report of the Annual PECCOE Meeting, Oct. 2005, at 14-17 and Annex 7
254. and Report of the Annual NEAFC Meeting (2005), at 29-30. All the reports are available at www.neafc.org.
255. See the Summary Report of the First Meeting of the Technical and Compliance Committee of the WCPFC, Doc. WCPFC-TCC1, at para. 43, and the Summary Record of the Second Session of the WCPFC, at para. 54. Documents available at www.wcpfc.org.
256. See Report of the 24th Annual CCAMLR Meeting, 2005, Doc. CCAMLR-XXIV (2005), para. 11.16-11.17, 16.9, and 17.3-17.4. Available at www.ccamlr.org.
257. See statements made during the 2004 Technical Consultation on the FAO Port State Model Scheme, FAO Fisheries Rep. no. 759, supra note 89, at 3, para. 10
258. para. 13(D) of the Ministerial Declaration and the summary of the workshop no. 5, included in the Report of the Conference, "The Governance of High Seas Fisheries and the UN Fish Agreement - Moving fromWords to Action" (St. John's, Newfoundland, and Labrador, Canada, May 1-5, 2005, available at www.dfo-mpo.gc.ca/fgccgp/ index_e.htm)
259. U.N. General Assembly Resolution 60/31, supra note 2, para. 42. By way of COM(2002) 180 final, of 28 May 2002, Communication from the Commission, Community action plan for the eradication of illegal, unreported and unregulated fishing, the EU expressed its intention to negotiate a multilateral agreement on port state jurisdiction.
260. At the time of writing, only a Draft Report (Doc. A/CONF.210/2006...) was available at www.un.org/Depts/los. See, at 36, para 58.
261. Earth Negotiations Bulletin, vol 7, no. 59, at 1-2, available at www.iisd.ca.
262. See Doc. HSTF/10, supra note 146, at 3.