Port Jurisdiction and Article 218 of the UN Convention on the Law of Sea
Posted: 27 Aug 2009
Date Written: April 1, 2009
Abstract
Marine pollution from ships, whether caused by operational discharges or accidents, is a very serious problem. Primary responsibility for regulating such pollution rests with the flag State, but for many years now a number of flag States have proven unwilling or unable to discharge this duty. As a result, there has been an increased resort by port States to their powers of control over visiting ships flagged elsewhere. The willingness of port States to exercise powers of control and jurisdiction over the leaky ships of other sovereigns is important in controlling and reducing vessel-source pollution. In the context of dealing with sub-standard ships, it is helpful to divide port State powers into Port State Control (PSC) and Port State Jurisdiction (PSJ). The former connotes a port State’s powers to prosecute ships and to impose fines on them for violations of international rules. The latter involves more limited, administrative measures of control by which, for example, a port State merely detains a ship until various corrective measures have been taken or directs it to the nearest shipyard. Thus, the prosecution of ships is the crucial characteristic of PSJ. In the full sense of the term, PSJ encompasses prosecution for offences committed beyond the national maritime zone, pursuant to Article 218 of the United Nations Convention on the Law of the Sea. It has been 13 years since Article 218 came into force. This article describes the development of PSJ, makes a detailed analysis and critique of Article 218, and surveys its implementation in various port States.
Keywords: port state, marine, maritime, pollution, spill, flag of convenience, UNCLOS, law of the sea, jurisdiction
JEL Classification: K13, K23, K32, K33, K42, L92, N50, N70
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