Introduction: Port State Jurisdiction: Challenges and Potential

Abstract

Confronted with the failures of flag states to adequately regulate their vessels, and/or to enforce applicable law, port states may assume a subsidiary regulatory and enforcement role. Exercising port state jurisdiction (psj) over foreign-flagged vessels, these port states may give effect to generally applicable international rules and standards, or simply apply their own laws. As the exercise of psj over foreign-flagged vessels often has effects outside the port, or even aims to regulate activities beyond national jurisdiction, legitimate questions as to the territorial nature of psj can be asked. It transpires, however, that most assertions of psj can formally be justified under a broad construction of the territoriality principle. Alternatively, they can find their basis in multilateral agreements or simply in the desire to protect common concerns. As the legality net regarding psj could thus be cast rather wide, the question, i.e., to what limitations such jurisdiction is subject, inevitably arises.

Enforcement Failures and Remedies: Review on State Jurisdiction over Ships at Sea

“…However, as Arron Honniball has convincingly argued, 165 Article 92 does in fact prescribe enforcement jurisdiction on the high seas, but it is not relevant to PSJ, which is enforced in the port of a state. 166 It implies that flag states maintain a stronger relationship with the operation of ships and can protest the overreaching exercise of PSJ. Nevertheless, as the capacity of port states to gather data increases, flag states may lose primary jurisdiction over ships flying their flags as PSJ expands.…”

“…It resembles "common concern" rather than a regime imposed for protectionist purposes. 171 Besides the limitations arising from international rules, abundant shortcomings can be found in the operation of PSJ. For instance, the port state cannot supervise ships' design and construction standards.…”

The Role of Port States in Safeguarding Maritime Security and Protecting the Marine Environment

“…Subs-standard ships may pose endanger to other ships, life and marine environment. Therefore, the port state can use the above administrative measures to order the violating ships to be repaired and rectified until they meet international standards [5] . The port state exercises the above enforcement measures and requires these ships to undergo repairs until meet international standards before they can continue to sail.…”

Legal Challenges of Implementing the System of Monitoring Carbon Dioxide Emissions from Maritime Transport within Ports of Call under the Jurisdiction of EU Member States

“…2015/757, it is also laid down in the aforementioned Regulation that the direct CO 2 emissions measurements may be used for voyages and for CO 2 emissions occurring in ports located in a Member State's jurisdiction. From 1 st January 2018, the shipowner or any other organization or person who has assumed responsibility for the operation of the ship from the shipowner has a duty, for the ships above 5000 gross tonnage, to monitor, inform, report, and verify the annual emissions of CO 2 released during their voyages: A) from their last port of call to a port of call under the jurisdiction of a Member State (therefore duties to monitor, report and verifier of CO 2 emissions from ships above 5000 gross tonage applies on CO 2 emissions produced during the entire voyage from a non-EU port to an EU port) [33]; B) from a port of call under the jurisdiction of a Member State to their next port of call; and C) within ports of call under the jurisdiction of a Member State [34]. MRV system includes CO 2 emissions from ships in ports (when a ship at berth is securely moored or anchored in a port falling under the jurisdiction of a Member State while she is loading, unloading or hotelling, including the time spent when not engaged in cargo operations (Art.3(1) n) Regulation 2015/757) and also on a ship in navigation within a port).…”