The primary characterization of the relationship of ports both international and domestic is that of competition. Ports vigorously compete in terms of costs and services for international shipping business whether that business be container vessels, bulk carriers or cruise ships. The great ports of the world, for example, Hong Kong, Singapore, and Rotterdam, have competitive advantages compared with lesser ports because of geography and history. Nevertheless, these great ports, like others, are alert to competition and the need to acquire and retain vessel traffic. Until recently, ports were inclined to treat vessel safety and vessel environmental standards in the same competitive mode. In most of the world, competition between ports of different countries operated to ensure that a country did not adopt port laws unfavorable to vessel traffic. Strict environmental requirements and safety standards applied to visiting vessels could increase the cost of transportation and make a port less competitive. Moreover, the shipping industry argued that host states applying differing local standards would create a checker-board of regulations that would increase compliance costs unreasonably and inhibit ocean trade. While certain states, such as the United States, because of its unique geographical, economic and political situation, could unilaterally apply strict port laws, other countries feared that adoption of strict port laws would have the significant economic repercussions suggested by the shipping industry. However, the increasing concern about sub-standard vessels plying the oceans of the world-by the public, as a result of publicity surrounding oil tanker disasters such as the Exxon Valdez; by the shipping industry, because of their poor public image; and by governments, in response to the public and industry-created a demand for a cooperative or regional approach to encourage port states to enhance enforcement of marine pollution and vessel safety laws against visiting vessels. This demand has been responded to with the adoption of regional arrangements for port state control. The first regional arrangement for port states was created in Europe through the 1982 Memorandum of Understanding on Port State Control in Implementing Agreements on Maritime Safety and Protection of the Marine Environment, known as the Paris Port State Control MOU. This was followed by the 1992 Latin American Agreement on Port State Control, then came the 1993 Tokyo Port State Control MOU, the 1996 Caribbean Port State Control MOU, and the 1997 MOU on Port State Control in the Mediterranean Region. Most recently, there is the Port State Control MOU for the Indian Ocean and East Africa and the West and Central African MOU. Preparations are being made for a port state control MOU for the Persian Gulf. All the regional port state control arrangements are substantively similar and follow the model of the 1982 Paris Port State Control MOU. For example, all the port state control MOUs contain wording in the preamble which indicates the need for a regional approach "to prevent the operation of substandard ships" in order "to avoid distorting competition between ports." All the regional port state control MOUs encourage the appropriate national port authorities to inspect visiting vessels to ensure that those vessels have been constructed, are equipped, crewed and operated in compliance with the standards set by the relevant international treaties." Where vessels are detected as not being in compliance with the standard setting conventions, the host state may prevent the offending vessel from leaving until the defects have been remedied. The hope is that as more countries and regions adopt port state control, enforcement of international vessel standards will be enhanced and vessel-owners will undertake to comply with the standards voluntarily rather than risk detection of substandard vessels and face potential delays and penalties. The wide-scale adoption of port state control is an attempt to develop an exception to the competitive relationship of ports within the same region. Port state control has as its foundation and operational ethic cooperation amongst regional ports. That cooperation has as its goals safer ships and cleaner seas, and is built upon the view that the goals can only be accomplished if all the regional ports apply and enforce the same rules in a similar manner to visiting vessels. Where the ports cooperate by agreeing to apply the same rules in a similar manner, then no single port seeks or acquires competitive advantage by offering to overlook sub-standard vessels. The focus of this contribution is upon three international law questions that arise regarding port state control: 1) What is the international legal foundation of port state control?; 2) What are the international treaties that regional port state control authorities apply to visiting vessels and does international law place any limits on the law that a port state can apply to a visiting vessel?; and 3) What are the international legal principles applicable to a port state respecting the controlling of vessel access to or the departure from ports?
Ted L. McDorman,
Regional Port State Control Agreements: Some Issues Of International Law,
Ocean & Coastal L.J.
Available at: http://digitalcommons.mainelaw.maine.edu/oclj/vol5/iss2/2