Port State Responsibility for Combating Vessel-Source Pollution： Enforcement and Safeguard Mechanisms

JIANG Jiadong　JIANG Wei

Abstract： Port States have unparalleled advantages over flag and coastal States in vessel-source pollution prevention， reduction and control. Prior to the 1982 United Nations Convention on the Law of the Sea （UNCLOS）， international conventions concerning marine environment protection， when addressing the issue of port State responsibilities， only granted a port State the power to investigate a foreign vessel within one of its ports， while the flag State had the right to institute proceedings against the vessel. UNCLOS expanded the responsibilities of port States in this regard， saying that port States could enforce applicable international law against visiting foreign vessels for pollution offences committed on the high seas or in the waters under the jurisdiction of other States. Moreover， the port State control regime has played a positive role in preventing and controlling vesselsource pollution. However， there are still deficiencies in port State control of vessel-source pollution； and these deficiencies desperately need to be improved.Key Words： Port State control； Vessel-source pollution； Marine environment protection



Port State Responsibility for Combating Vessel-Source Pollution： Enforcement and Safeguard Mechanisms

JIANG Jiadong*JIANG Wei**

Abstract： Port States have unparalleled advantages over flag and coastal States in vessel-source pollution prevention， reduction and control. Prior to the 1982 United Nations Convention on the Law of the Sea （UNCLOS）， international conventions concerning marine environment protection， when addressing the issue of port State responsibilities， only granted a port State the power to investigate a foreign vessel within one of its ports， while the flag State had the right to institute proceedings against the vessel. UNCLOS expanded the responsibilities of port States in this regard， saying that port States could enforce applicable international law against visiting foreign vessels for pollution offences committed on the high seas or in the waters under the jurisdiction of other States. Moreover， the port State control regime has played a positive role in preventing and controlling vesselsource pollution. However， there are still deficiencies in port State control of vessel-source pollution； and these deficiencies desperately need to be improved.
Key Words： Port State control； Vessel-source pollution； Marine environment protection

I. The Necessity for Port States to Prevent and Control Vessel-Source Pollution and a Short History of Port State Jurisdiction over Such Pollution

The marine environment， due to its vulnerability and integrity， needs protection from all world States. It is reported that vessel-source pollution accounts for approximately 12% of the total marine pollution， ranking as the second largest source of pollution.1Liu Nengye， Frank Maes， The European Union and the International Maritime Organization：EU’s External Influence on the Prevention of Vessel-Source Pollution， Journal of Maritime Law and Commerce， Vol. 41， No. 4， 2010， p. 581.Vessel-source pollution， which causes devastating effects on the marine environment， involves complicated jurisdiction problems. A host of serious vessel-source marine pollution incidents occurring over the past half century have evoked the international community’s concerns over pollution from ships and pushed the establishment of a number of mechanisms for the prevention of such pollution.

A. The Necessity for Port States to Prevent Vessel-Source Pollution

In accordance with the principle of flag State jurisdiction， flag States have traditionally been obliged to enact laws and rules in order to prevent their vessels from polluting the marine environment. That is to say， the primary responsibility for protecting the marine environment rests with flag States. Flag States previously held sole responsibility in this regard， but for many years a number of flag States were either unable or reluctant to take necessary action to perform their duties.2Ho-Sam Bang， Port State Jurisdiction and Article 218 of the UN Convention on the Law of Sea， Journal of Maritime Law & Commerce， Vol. 40， No. 2， April 2009， p. 291.This is mainly caused by reasons associated with “flags of convenience”. Currently，about4Daniel Bodansky， Protecting the Marine Environment from Vessel-Source Pollution：UNCLOS III and Beyond， Ecology Law Quarterly， Vol. 18， 1991， p. 737.9% of ships in the world fly flags of convenience.3Virginie Terrie， Are “Black Tides” Inevitable？， Coventry Law Journal， Vol. 6， No. 2， 2001，p. 35.On one hand， in order to reduce operating costs， the design， discharge and equipment of these ships are not made in strict compliance with the applicable standards. Such ships， therefore，are likely to generate marine pollution and safety hazards. On the other hand， it is difficult for a flag State to impose effective control on these ships， since its own number of national ships plying the oceans are enormous. Moreover， some critics assert that since pollution on the high seas or in another State’s coastal waters normally does not affect the flag State， the flag State lacks incentive to set out environmental standards or take appropriate enforcement measures.4Daniel Bodansky， Protecting the Marine Environment from Vessel-Source Pollution：UNCLOS III and Beyond， Ecology Law Quarterly， Vol. 18， 1991， p. 737.

The 1982 United Nations Convention on the Law of the Sea （UNCLOS）represents a profound breakthrough for coastal State jurisdiction over vesselsource pollution， thus starting a new chapter in this regard.5Zhang Xianglan and Ye Quan， Coastal State Prescriptive Jurisdiction over Pollution from Ships within Its Exclusive Economic Zone， Contemporary Law Review， No. 3， 2013， p. 145. （in Chinese）However， coastal State jurisdiction still has its limitations and weaknesses. First， UNCLOS established the 200 nautical miles exclusive economic zone （EEZ） regime， yet it is challenging for coastal States to effectively detect discharge violations in such vast waters，unless a ship causes significant pollution to the marine environment； additionally，in comparison with flag States， coastal States suffer more directly from marine pollution and have greater interests in preventing vessel-source pollution. Coastal States therefore have pushed for stricter environmental standards and greater authority over vessels in their coastal waters. However， such interests conflict with the interests of maritime States， which aim to protect their military and commercial interests in free navigation.6Daniel Bodansky， Protecting the Marine Environment from Vessel-Source Pollution：UNCLOS III and Beyond， Ecology Law Quarterly， Vol. 18， 1991， p. 725.

In contrast with the limitations of flag and coastal State jurisdiction over pollution from ships， port States may play a greater role in this aspect. When a port State exercises jurisdiction over a delinquent vessel， the vessel stays within its port，ensuring that offences are expeditiously investigated， subsequent prosecutions are facilitated， and pollution from unseaworthy vessels are prevented.7I. A. Shearer， Problems of Jurisdiction and Law Enforcement against Delinquent Vessels，International and Comparative Law Quarterly， Vol. 35， No. 2， 1986， p. 341.From a policy perspective， port State enforcement of jurisdiction over vessel-source pollution represents a compromise between coastal and flag State enforcement. On the one hand， port States may be more inclined than flag States to enforce stringent environmental regulations， since port States are themselves coastal States and， as such， are at risk from substandard and delinquent vessels. Port State jurisdiction therefore serves as a corrective to inadequate flag State enforcement or nonenforcement. On the other hand， port State enforcement is preferable to coastal State enforcement because it interferes much less with freedom of navigation and can generally be performed more safely.8Daniel Bodansky， Protecting the Marine Environment from Vessel-Source Pollution：UNCLOS III and Beyond， Ecology Law Quarterly， Vol. 18， 1991， pp. 739～740.Against this backdrop， this paper， from the perspective of enforcement and safeguard mechanisms， attempts to examine theinternational rules concerning port State control （hereinafter referred to as “PSC”）over vessel-source pollution， inter alia， the basic contents and the drawbacks of such rules， and offers proposals to improve them.

B. A Short History of Port State Jurisdiction over Vessel-Source Pollution

Under the influence of Hugo Grotius’ Mare Liberum （The Free Sea）， traditional international law asserts that a ship is “a floating part of the territory of its flag State”.9Lauterpacht revised， Wang Tieya et al. translated， Oppenheim's International Law， Vol. I-2，Beijing： The Commercial Press， 1972， p. 9. （in Chinese）This assertion leads to the argument that flag States own the jurisdiction over ships， which for a considerable period of time has affected the practice of the overwhelming majority of States and the formulation of international conventions. For instance， the International Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in Matters of Collision or Other Incidents of Navigation， adopted in Brussels in 1952， articulates in Article 1 that flag States’exclusive jurisdiction over vessels in the event of a collision or any other incident of navigation. However， as mentioned above， flag State jurisdiction is not sufficient in vessel-source pollution prevention and control under some circumstances. Therefore， this jurisdiction has been strongly questioned and challenged by many scholars of international law and certain national practices， as reflected in the provisions of some international conventions.

International Convention for the Prevention of Pollution of the Sea by Oil （OILPOL）， 1954， sets out the port State’s rights to inspect foreign vessels. As perArticles 9（5） and 10 of this convention，10International Convention for the Prevention of Pollution of the Sea by Oil， 1954， paragraph （5） of Article IX states： “The competent authorities of any of the territories of a Contracting Government may inspect on board any ship to which the present Convention applies，while within a port in that territory， the oil record book required to be carried in the ship in compliance with the provisions of this Article， and may make a true copy of an entry in that book and may require the master of the ship to certify that the copy is a true copy of such entry.” And its Article X reads： “Any Contracting Government may furnish to the Government of the relevant territory in respect of the ship in accordance with paragraph （1）of Article II particulars in writing of evidence that any provision of the present Convention has been contravened in respect of that ship， wheresoever the alleged contravention may have taken place … Upon receiving such particulars， the Government so informed shall investigate the matter， and may request the other Government to furnish further or better particulars of the alleged contravention. If the Government so informed is satisfied that sufficient evidence is available in the form required by its law to enable proceedings against the owner or master of the ship to be taken in respect of the alleged contravention， it shall cause such proceedings to be taken as soon as possible.”the port State may inspect any ship within its port， make a copy of the oil record book which is required to be carried in the ship， and furnish to the flag State particulars in writing of evidence proving that ship’s violation. The flag State so informed shall investigate the matter， and bring proceedings in respect to the alleged violation.

International Convention for the Prevention of Marine Pollution from Ships，1973， as modified by the Protocol of 1978 relating thereto （MARPOL 73/78），provides for the port State’s inspection of ships within its ports or offshore terminals， outlines a detailed inspection procedure and defines ways of dealing with any ship presenting a threat of harm to the marine environment. Article 5（2） of MARPOL 73/7811MARPOL 73/78， Article 5（2） stipulates： “A ship required to hold a certificate in accordance with the provisions of the regulations is subject， while in the ports or offshore terminals under the jurisdiction of a Party， to inspection by officers duly authorized by that Party. Any such inspection shall be limited to verifying that there is on board a valid certificate， unless there are clear grounds for believing that the condition of the ship or its equipment does not correspond substantially with the particulars of that certificate. In that case， or if the ship does not carry a valid certificate， the Party carrying out the inspection shall take such steps as will ensure that the ship shall not sail until it can proceed to sea without presenting an unreasonable threat of harm to the marine environment. That Party may， however， grant such a ship permission to leave the port or offshore terminal for the purpose of proceeding to the nearest appropriate repair yard available.”explicitly stipulates that port States are entitled to inspect ships，but any such inspection shall be limited to verifying that there is a valid certificate on board. If the ship does not carry a valid certificate or the condition of the ship or its equipment does not correspond with the particulars of that certificate， the port State may take necessary steps， including granting such a ship permission to proceed to the nearest appropriate repair yard available. Additionally， in accordancewith Article 6（2） and （4），12MARPOL 73/78， Article 6（2） prescribes： “A ship to which the present Convention applies may， in any port or offshore terminal of a Party， be subject to inspection by officers appointed or authorized by that Party for the purpose of verifying whether the ship has discharged any harmful substances in violation of the provisions of the regulations. If an inspection indicates a violation of the Convention， a report shall be forwarded to the Administration for any appropriate action.” And its Article 6（4） states： “Upon receiving such evidence， the Administration so informed shall investigate the matter， and may request the other Party to furnish further or better evidence of the alleged contravention. If the Administration is satisfied that sufficient evidence is available to enable proceedings to be brought in respect of the alleged violation， it shall cause such proceedings to be taken in accordance with its law as soon as possible.”port States have the right to inspect a ship for the purpose of verifying whether the ship has discharged any harmful substances. In the event of any alleged contravention， the “administration”13MARPOL 73/78， Article 2（5）.shall investigate the matter to find out who should be held responsible. With respect to a ship entitled to fly the flag of any State， the investigating administration would be the government of that State.

As described above， both OILPOL and MARPOL 73/78 provide for port State enforcement jurisdiction， requiring the port State to forward any detected vessel violations to the flag State in a timely manner. Thereupon， the flag State should investigate the matter and enable proceedings to be brought in respect to the alleged violation. Nevertheless， these provisions have not fundamentally changed the primary role of the flag State， and port State jurisdiction has failed to play its intended role.

However， UNCLOS substantially changed the primary role of the flag State in respect to the jurisdiction over vessel-source pollution. UNCLOS， as the “ocean charter” governing marine affairs， is the most important and comprehensive attempt by the international community at creating a convention regulating jurisdiction over vessel-source pollution. The provisions concerning the legal regime for vesselsource pollution prevention are contained in UNCLOS， Part XII （The Protection and Preservation of the Marine Environment）. These provisions established the concurrent jurisdiction of flag， coastal and port States， signifying a breakthrough in port State jurisdiction over vessel-source pollution， and thus starting a new chapter in this regard.

Another legal regime for preventing vessel-source pollution developed quickly and at about the same time. This process began when a supertanker， Amoco Cadiz，ran aground off the coast of France on 16 March 1978. Resultantly， 223，000 tons ofoil on board spilled into the sea， causing disastrous marine pollution. This accident directly lead to the creation of the 1982 Memorandum of Understanding on Port State Control in Implementing Agreements on Maritime Safety and Protection of the Marine Environment， also known as the Paris PSC MOU of 1982. And the PSC system was really implemented at the global level following the model of the Paris MOU.

II. The Provisions concerning Port State Prevention and Control of Vessel-Source Pollution under UNCLOS

Part XII of UNCLOS lays down the framework provisions for the protection of marine environment； it also provides the basic legal framework for the inspection of ships by flag， coastal and port States， and their exercise of jurisdiction over vessel-source pollution.

Jurisdiction is generally divided into prescriptive， enforcement and judicial jurisdiction. The national jurisdiction over vessel-source pollution， however，is normally categorized into two types， namely， prescriptive and enforcement jurisdiction， since judicial jurisdiction can be included in enforcement jurisdiction.14Zhang Xianglan and Ye Quan， Coastal State Prescriptive Jurisdiction over Pollution from Ships within Its Exclusive Economic Zone， Contemporary Law Review， No. 3， 2013， p. 144. （in Chinese）Part XII of UNCLOS articulates flag， coastal and port State prescriptive and enforcement jurisdiction over vessel-source pollution. However， as discussed above， in order to address vessel-source pollution， a port State can play a greater role in its effective exercise of enforcement jurisdiction over vessel-source pollution.15Port State prescriptive jurisdiction is legally based on UNCLOS Article 211（3）， which reads： “States which establish particular requirements for the prevention， reduction and control of pollution of the marine environment as a condition for the entry of foreign vessels into their ports or internal waters or for a call at their off-shore terminals shall give due publicity to such requirements and shall communicate them to the competent international organization.”Therefore， it calls for an analysis of the provisions under UNCLOS relating to enforcement jurisdiction.

A. Port State Enforcement Regime for Preventing Vessel-Source Pollution

Article 218 of UNCLOS establishes the port State enforcement regime forpreventing vessel-source pollution. The enforcement powers of port States can be summarized into the following five aspects：

（1） When a vessel is voluntarily within a port or at an off-shore terminal of a port State， that State may undertake investigations and， where the evidence so warrants， institute proceedings in respect to any illegal discharge from that vessel beyond the internal waters， territorial sea or EEZ of that State， all of which refer to the high seas， as indicated by the next paragraph；

（2） When a vessel is voluntarily within a port or at an off-shore terminal of a port State， that State shall institute proceedings in respect to a discharge violation occurred in the internal waters， territorial sea or EEZ of another State， if requested by that State， the flag State， or a State damaged or threatened by the discharge violation；

（3） When a vessel is voluntarily within a port or at an off-shore terminal of a port State， that State shall investigate and institute proceedings in respect of a discharge violation occurred in the internal waters， territorial sea or EEZ of another State， if the violation has caused or is likely to cause pollution in the waters under the jurisdiction of the port State；

（4） When a vessel is voluntarily within a port or at an off-shore terminal of a port State， that State shall comply with requests for the investigation of a discharge violation from the State where a violation occurred， the State damaged or threatened by the violation and the flag State. The records of the investigation shall be transmitted upon request to the flag State or to the coastal State；

（5） Any proceedings instituted by the port State may be suspended at the request of the coastal State when the violation has occurred within the internal waters， territorial sea or EEZ of the coastal State. The evidence and records of the case， together with any bond or other financial security， shall be transmitted to the coastal State.

Among the five aspects above， the first three mention the port State’s power to investigate and institute proceedings against violations， and the last two articulate the judicial assistance from port States to other States. Port State enforcement jurisdiction can， therefore， be subdivided into powers to investigate and initiate proceedings and the responsibility to offer judicial assistance.

1. Investigatory Powers of the Port State

The port State’s investigatory powers mainly refer to its power to inspect foreign vessels within its port or at its off-shore terminals to determine whether any discharge violation of applicable international rules and standards exists.

In accordance with Article 226 of UNCLOS， port State inspection of a foreign vessel shall normally be limited to an examination of such certificates，records or other documents that the vessel is required to carry by generally accepted international rules and standards or of any similar documents which it is carrying； further physical inspection of the vessel may be undertaken after such an examination and when： （1） there are clear grounds for believing that the condition of the vessel or its equipment does not correspond substantially with the particulars of those documents； （2） the contents of such documents are not sufficient to confirm or verify a suspected violation； or （3） the vessel is not carrying valid certificates and records. Such “further physical inspection” includes the inspection of the space of the vessel and cargo on board.

The results of the investigation can be addressed under two circumstances：（1） If the investigation indicates a violation of applicable laws and regulations or international rules and standards， the port State may detain the vessel and institute proceedings when the required conditions are met； however， release shall be made promptly subject to reasonable procedures such as bonding or other appropriate financial security； （2） when the vessel is unseaworthy and would present a threat of damage to the marine environment， the port State may refuse to release the vessel or make the release conditional upon the vessel’s proceeding to the nearest appropriate repair yard.

2. Port State Power to Initiate Proceedings

UNCLOS provides that port States may institute proceedings under three circumstances. Proceedings are normally divided into two categories： broad sense and narrow sense. Broad sense proceedings refer to the procedures， ways，principles， rules and regimes that the competent State authorities and any participant in proceedings should follow when engaging in a lawsuit. For example， criminal proceedings include the procedures， manners， ways， principles， rules and regimes which are adopted or observed during the filing and investigation of cases， as well as the initiation of lawsuits， trial of cases and the execution of criminal decisions and orders. In this sense， proceedings actually pertain to all litigation procedures. Narrow sense proceedings refer to the procedures that courts follow when entertaining all types of cases， commonly known as the trial procedures.16Jiang Bixin and Chen Hu， The Basic Scope of Legal Proceedings， Journal of Law Application， No. 5， 2011， p. 23. （in Chinese）Under UNCLOS， Article 218（1） prescribes that a port State may undertake investigationsand， where the evidence so warrants， institute proceedings. Article 220（6） stipulates that a port State may， subject to Section 7， provided that the evidence so warrants，institute proceedings， including detention of the vessel， in accordance with its laws. Therefore， to be specific， proceedings that may be instituted by a port State include the detention of vessels， the bringing of actions against vessels， the trial of violations， and the enforcement of court orders or decisions.

Proceedings may be suspended or terminated in certain cases. First，proceedings to impose penalties， in respect to any violation committed by a foreign vessel， shall be suspended upon the taking of proceedings to impose penalties in respect of corresponding charges by the flag State within six months of the date on which proceedings were first instituted by the port State. When proceedings instituted by the flag State have been brought to a conclusion， the suspended proceedings shall be terminated.17UNCLOS， Article 228.Second， any proceedings instituted by the port State on the basis of any relevant investigation may be suspended at the request of the coastal State when the violation has occurred within its internal waters，territorial sea or EEZ. The evidence and records of the case， together with any bond or other financial security posted with the authorities of the port State， shall in that event be transmitted to the coastal State. Such transmittal shall preclude the continuation of proceedings in the port State.18UNCLOS， Article 218（4）.

Regarding penalties in proceedings， port States may， as per Article 230 of UNCLOS， only impose monetary penalties upon foreign vessels with respect to their violations of applicable international rules and standards under normal circumstances.

3. Port State Responsibility to Offer Judicial Assistance

Judicial assistance consists of criminal and civil judicial assistance. Criminal judicial assistance is the aid offered in performing some criminal judicial functions，or the performance of such functions on behalf of any other judicial organs， to help the party requesting such assistance to investigate， prosecute and try crimes， and enforce criminal penalties. Consequently， any actions to assist criminal proceedings are litigatory in nature and are， therefore， subordinate or auxiliary to criminal litigation activities of the requesting party.19Cheng Liangwen， Researches on Criminal Judicial Assistance （Doctoral Dissertation），Chongqing： Southwest University of Political Science & Law， 2002， p. 23. （in Chinese）Civil judicial assistance is the taking of some judicial action， such as the service of a document of action， the summoningof a witness， the taking of evidence， and the enforcement of a judgment rendered by a foreign court or an arbitral award of a foreign State， by a court from one State for and on behalf of a court in another State when requested.20Han Depei ed.， Private International Law， Beijing： China Higher Education Press & Peking University Press， 2000， p. 471. （in Chinese）The port State is responsible for providing judicial assistance to protect the marine environment in the following aspects： （1） When a vessel is within one of its ports or at one of its off-shore terminals， the port State shall institute proceedings in respect to a discharge violation occurred in the internal waters， territorial sea or EEZ of another State， if requested by that State； （2） When a vessel is within one of its ports or at one of its off-shore terminals， the port State shall comply with requests for investigation of a discharge violation from the State where a violation occurred，the State damaged or threatened by the violation and the flag State. The records of the investigation shall be transmitted upon request to the flag State or to the coastal State； （3） Any proceedings instituted by the port State may be suspended at the request of the coastal State when the violation has occurred within the coastal State’s internal waters， territorial sea or EEZ. The evidence and records of the case，together with any bond or other financial security， shall be transmitted to the coastal State.

B. The Safeguard System for Port State to Control Vessel-Source Pollution

The safeguards under UNCLOS Part XII， Section 7 are made to avoid abuses in the exercise of the enforcement powers by States. This section is designed to protect the rights of foreign States and their vessels， especially the masters and crew. These safeguards relate mainly to the exercise of enforcement powers against foreign vessels （only Articles 227， 229 and 232 are of broader scope）， reflecting a balancing of the need for more effective enforcement measures， especially with regard to vessel-source pollution， where enforcement powers are granted to States other than the flag State， and the need to maintain freedom of navigation and the integrity of the global navigation system.21Shabtai Rosenne and Alexander Yankov， United Nations Convention on the Law of the Sea 1982： A Commentary （Volume IV）， Dordrecht/Boston/London： Marinus Nijhoff Publishers，1991， p. 321.

Safeguards may be roughly divided into two categories： one relates toenforcement measures and the other relates to proceedings.

1. The Safeguards Relating to Enforcement Measures

This kind of safeguards includes setting restrictions on the body which may exercise enforcement powers， avoiding adverse consequences and making no discrimination against foreign vessels in the exercise of such powers， notifying the flag State and other States concerned， and requiring the States to be liable for damage or losses arising from their improper enforcement of powers. Specifically，these safeguard provisions include：

（1） Safeguard provisions concerning the body which may exercise enforcement powers： such powers may only be exercised by officials or by warships， military aircraft， or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.

（2） Safeguard provisions relating to the avoidance of adverse consequences in the exercise of enforcement powers： in the exercise of their powers of enforcement against foreign vessels， States shall not endanger the safety of navigation or otherwise create any hazard to a vessel， or bring it to an unsafe port or anchorage，or expose the marine environment to an unreasonable risk；

（3） Safeguard provisions with regards to non-discrimination against foreign vessels： a port State shall not discriminate in form or in fact against vessels of any other State；

（4） Safeguard provisions regarding notification to the flag State and other States concerned： port States shall promptly notify the flag State and any other State concerned of any measures taken against foreign vessels； and

（5） Safeguard provisions with respect to liability to damages： a port State shall be liable for damage or loss attributable to it arising from measures it has taken when such measures are unlawful or exceed those reasonably required in the light of available information. That State shall provide for recourse in its courts for actions in respect to such damage or loss.

2. Safeguards Relating to Proceedings

This kind of safeguards includes facilitating proceedings， suspending and restricting the institution of proceedings， never affecting the institution of civil proceedings， limiting the penalties which may be imposed in the conduct of proceedings， and setting liability for notification and damages. As the provisions concerning the liability for notification and damages have been discussed above，we will skip it and focus on other provisions：

（1） Facilitating proceedings： port States shall take measures to facilitate thehearing of witnesses and the admission of evidence， shall facilitate the attendance at such proceedings of the official representatives concerned， and shall ensure that these representatives have such rights and duties as may be provided under national laws and regulations or international law；

（2） Suspending and restricting the institution of proceedings： the flag State is entitled to take proceedings in respect to corresponding charges within six months of the date on which proceedings were first instituted by the port State. Proceedings to impose penalties on foreign vessels shall not be instituted after the expiry of three years from the date on which the violation was committed and shall not be taken by any State in the event of proceedings having been instituted by another State subject to the provisions set out in Article22Robin Rolf Churchill and Alan Vaughan Lowe， The Law of the Sea， 3rd Edition， Manchester： Manchester University Press， 1999， pp. 344～355.8（1） of UNCLOS.

（3） Limiting the penalties that may be imposed in the conduct of proceedings：monetary penalties may only be imposed with respect to violations committed by foreign vessels beyond the territorial sea； monetary penalties may only be imposed with respect to violations committed by foreign vessels in the territorial sea， except in the case of a willful and serious act of pollution in the territorial sea. In the conduct of proceedings in respect to such violations committed by a foreign vessel which may result in the imposition of penalties， recognized rights of the accused shall be observed.

C. Summary

The discussion above shows that UNCLOS provides a port State with greater powers to enforce applicable international law against visiting foreign vessels for pollution offences committed on the high seas or in other States’ waters. Prior to UNCLOS， port States could only enforce jurisdiction over pollution offences committed within their national waters. Under customary international law， a State may adopt anti-pollution laws for foreign vessels lying in its ports and may apply such laws or particular international conventions to such vessels as a condition for entry into its ports.22Robin Rolf Churchill and Alan Vaughan Lowe， The Law of the Sea， 3rd Edition， Manchester： Manchester University Press， 1999， pp. 344～355.Certainly， a port State cannot take actions against a vessel for violations occurred before its entry into the territorial sea of that State， unless the enforcement is permitted under a particular agreement or the violation caused harmful effects on the marine environment of that State.

Under UNCLOS， port States may merely exercise jurisdiction over a foreign vessel in respect to its discharge in violation of applicable international rules and standards established through the competent international organization or general diplomatic conference， but not standards concerning the construction， design，equipment and manning of vessels. “Applicable international rules and standards”differ from “generally accepted international rules and standards” under Article 211 of UNCLOS， which serve as the legal basis for the prescriptive jurisdiction of each State and are included in the former. “Applicable international rules and standards”relates to those rules which are formed by customary international law or laid down in maritime conventions on the related issue， for example， MARPOL 73/78 anti-pollution rules. That is to say， the term “applicable international rules and standards” excludes resolutions， guidelines and codes that are not yet considered “generally accepted international rules and standards”.23Ho-Sam Bang， Port State Jurisdiction and Article 218 of the UN Convention on the Law of Sea， Journal of Maritime Law and Commerce， Vol. 40， 2009， p. 299.

To sum up， the relevant provisions of UNCLOS provides the legal basis for port States to play a positive role in the protection of the marine environment，which are recognized as complementary to flag State jurisdiction. However， these UNCLOS provisions are framework provisions and are principles in nature. In practice， port States play their roles in preventing and combating vessel-source pollution in accordance with another international mechanism - the PSC regime.

III. An Examination of the PSC Regime for Vessel-Source Pollution

It is fair to say that PSC is the core form of port State jurisdiction.24Zhao Zaili， Ship Safety Management Systems and PSC Inspection， Transportation Enterprise Management， No. 3， 2005， p. 30. （in Chinese）The term “PSC”， is defined by the International Maritime Organization （IMO）， as port States’inspection of foreign ships within their national ports to verify that the condition of the ships and their equipment complies with the requirements of international conventions and that the ships are manned and operated in compliance with these conventions and rules.25At http：//www.imo.org/TCD/mainframe.asp？topic_id=159， 11 June 2015.

A. The Development of the PSC Regime

Port State inspections of foreign ships were originally intended to be a back up to flag State implementation. However， experience has shown that these inspections can be highly effective， especially when inspections are closely coordinated among regions. A ship going to a port in one State will normally visit other States in the region， and it could， therefore， benefit all stakeholders if port States could closely coordinate their inspections. This ensures that as many ships as possible are inspected but at the same time prevents ships from being delayed by unnecessary inspections. The primary responsibility for setting ship standards rests with the flag State. Nevertheless， PSC provides a “safety net” to catch substandard ships.26Port State control， at http：//www.imo.org/en/OurWork/MSAS/Pages/PortStateControl.aspx，11 June 2015.Additionally， as far as regional cooperation between port States is concerned，some assert that the primary characterization of the relationship of ports is that of competition.27Ted L. McDorman， Regional Port State Control Agreements： Some Issues of International Law， Ocean and Coastal Law Journal， Vol. 5， 2000， p. 207.Strict environmental requirements and safety standards applied to visiting vessels could raise the cost of transportation and make a port less competitive. Moreover， port States applying differing local standards could unreasonably increase compliance costs and inhibit ocean trade.28Ted L. McDorman， Regional Port State Control Agreements： Some Issues of International Law， Ocean and Coastal Law Journal， Vol. 5， 2000， p. 207.This situation demands the adoption of regional arrangements for the PSC.29Ted L. McDorman， Regional Port State Control Agreements： Some Issues of International Law， Ocean and Coastal Law Journal， Vol. 5， 2000， p. 208.

Upon entry into force of the Paris PSC MOU in 1982， the IMO has adopted a series of resolutions relating to PSC. These resolutions have constituted a full set of documents respecting PSC inspection procedures. The IMO also revised relevant international conventions by adding and improving some control provisions. In addition， the establishment of the Paris PSC MOU in 1982 was followed by PSC MOUs for South American and Asian-Pacific regions in 1993 and 1994 respectively； then came PSC MOUs for the Caribbean， Mediterranean， Indian Ocean， the Persian Gulf， the West African and other regions. Until now， such PSC MOUs have covered nearly all of the world’s oceans. Being the primary form of PSC， regional MOUs are fairly effective in combating marine environmental pollution.

B. The Legal Basis for PSC over Vessel-Source Pollution

UNCLOS provides the legal basis for the implementation of PSC. Article 219 of UNCLOS grants port States the rights to take administrative measures to prevent a foreign vessel from sailing when they have ascertained that the vessel is in violation of applicable international rules and standards relating to the seaworthiness of vessels and thereby threatens damage to the marine environment. This article is the direct legal basis for the implementation of PSC in each port. Article 226 concerns the investigatory powers of port States， as mentioned in Part II of this paper. It provides the concrete procedures and steps needed to implement PSC. Article 227 stipulates that States shall not discriminate in form or in fact against vessels of any other State when implementing PSC， which ensures PSC will be carried out fairly and effectively. Article 232 specifies the liability of port States arising from enforcement measures， which guarantees the vessels’ rights to remedy in the implementation of PSC.

In a nutshell， with respect to the enforcement and safeguards mechanisms for port States prevention and control of vessel-source pollution， the provisions of UNCLOS concerning PSC is relatively general and broad， without detailed provisions and guidelines， which therefore can only serve as a sketchy framework. In contrast， maritime conventions developed by the IMO and the International Labour Organization （ILO） offer more specific legal basis for PSC.

Some of the IMO’s important technical conventions contain articles with regards to port State inspection of foreign vessels， for the purpose of ensuring these vessels’ compliance with IMO requirements. Such IMO maritime conventions mainly include：

1. International Convention on Load Lines， 1966， as Modified by the 1988 Protocol Relating thereto （hereinafter “ICLL 66”）；

2. International Convention for the Safety of Life at Sea （SOLAS）， 1974， its amendments， and the 1978 and 1988 SOLAS Protocols；

3. MARPOL 73/78；

4. International Convention on Standards of Training， Certification and Watchkeeping for Seafarers， 1978， as Amended in 1995 （hereinafter “STCW Convention”）；

5. International Convention on Tonnage Measurement of Ships， 1969 （hereinafter “Tonnage Convention”）； and

6. 1972 Convention on the International Regulations for Preventing Collisionsat Sea and Amendments thereto.

In addition， the ILO has formulated many international conventions regarding seafarers， among which the most important one dealing with PSC is the Maritime Labour Convention， 2006 （hereinafter “MLC”）.

The relevant provisions of these maritime conventions set out the items subject to PSC inspection by PSC officers， including the technical conditions of ships， operational requirements， manning of ships， and the living and working conditions for seafarers.30Qian Min， ISM Rules and PSC Practice， Dalian： Dalian Maritime University Press， 2001， p. 45. （in Chinese）These technical provisions constitute the enforcement and safeguard mechanisms for port State prevention and control of vessel-source pollution. However， it is important to note that the enforcement mechanism for PSC is to detain or delay vessels， unlike port States’ powers to investigate and institute proceedings against any violations as stipulated in UNCLOS.

SOLAS Regulation I/19 （entitled “Control”） prescribes that in the circumstances where a certificate has expired or ceased to be valid， port States may take enforcement measures to detain vessels； Regulation XI/4 （“Port State Control on Operational Requirements”） also has a provision concerning enforcement measures to detain vessels. In addition to enforcement measures， this convention also lays out safeguard provisions， as shown in Regulation I/19， paragraph （f）， which reads：“When exercising control … all possible efforts shall be made to avoid a ship being unduly detained or delayed. If a ship is thereby unduly detained or delayed it shall be entitled to compensation for any loss or damage suffered.”

MARPOL 73/78 is a significant convention respecting marine environment protection. This convention covers many items subject to PSC inspection. The inspection of many items may lead to the delay of vessels， for example， when a certificate ceased to be valid or the chief crew members of a vessel are unfamiliar with the essential procedures for oil pollution prevention. Additionally， this convention also emphasizes that all possible efforts should be made to avoid a ship being unduly detained or delayed， and when a ship is unduly detained or delayed， it is entitled to compensation for any loss or damage suffered.

The STCW Convention and MLC also have similar enforcement and safeguard provisions.31STCW Convention， Article X and MLC， Standard A5.1.1

However， the enforcement provisions under ICLL 66 and the TonnageConvention are somewhat different from those described above. ICLL 66 stresses that PSC shall be limited to the examination of certificates， which would not result in the delay of any ships；32ICLL 66， Article 21.and the Tonnage Convention provides that in no case shall the exercise of such inspection cause any delay to the ship.33Tonnage Convention， Article 12.

These provisions， under the maritime conventions developed by IMO and ILO， constitute the legal basis for PSC enforcement and safeguard mechanisms for vessel-source pollution. PSC officers of each State conduct strict inspections in accordance with these provisions and urge flag States to follow international conventions concerning marine environmental protection and navigation safety. When flag States fail to adhere to their commitments to marine safety， port States act as the “last safety net” in the control system.34Dr. Z. Oya Őzçcayir， The Use of Port State Control in Maritime Industry and Application of the Paris Mou， Ocean and Coastal Law Journal， Vol. 14， Issue 2， 2009， p. 201.

In an effort to adapt to the changing needs of time， IMO and ILO have developed new international conventions and modified the existing international conventions. Therefore， provisions with respect to PSC inspections have also been updated. These maritime conventions mainly include：

1. The International Convention on Oil Pollution Preparedness， Response and Cooperation， 1990. This convention requires that ships， ports and offshore units have oil pollution emergency plans， which are subject to inspection by port State authorities. As per Article 3， when a ship is in a port or at an offshore terminal under the jurisdiction of a port State， officers duly authorized by that State shall have the right to inspect the ship required to have an oil pollution emergency plan on board， in accordance with the practices provided for in existing international agreements or its national legislation.

2. The International Convention on the Control of Harmful Anti-fouling Systems on Ships， 2001. This convention sets out the port State’s responsibilities for preventing and controlling pollution from ships. Article 11 allows officers authorized by a port State to inspect a ship in any port， shipyard， or offshore terminal of that State. Any such inspection shall first be limited to verifying the relevant documents carried by the ship； if there are clear grounds to believe that the ship is in violation of this convention， a thorough inspection may be carried out by officers of the port State， and if the ship is detected to be in violation of this convention， the port State may take steps to warn， detain， dismiss， or exclude theship from its ports. In accordance with Article 13， if a ship is unduly detained or delayed while undergoing inspection， it shall be entitled to compensation for any loss or damage suffered.

3. The International Convention for the Control and Management of Ships’Ballast Water and Sediments， 2004. This convention also provides for the port State’s power to inspect vessels. Where the condition of a ship or its equipment does not correspond substantially with the particulars of the certificate on board， or where the master or the crew are not familiar with essential shipboard procedures relating to ballast water management or have not implemented such procedures， the port State shall take steps to ensure that the ship shall not discharge ballast water. Articles 10 and 12 establish the enforcement and safeguard mechanisms for port States to combat pollution from ships.

4. The Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships， 2009. This convention contains provisions about the port State’s power to inspect ships， measures taken by the port State against illegal ships， and liability for damages arising from undue detainment or delay of ships while enforcing the convention. In accordance with Articles 8， 9， 10 and 11， the officers duly authorized by a port State shall have right to inspect ships. If a ship is detected to be in violation of this convention， the State carrying out the inspection may take steps to warn， detain， dismiss， or exclude the ship from its ports. When a ship is unduly detained or delayed， it shall be entitled to compensation for any loss or damage suffered.

C. Summary

In the context of dealing with vessel-source pollution， it is helpful to distinguish PSC from port State enforcement jurisdiction under UNCLOS. PSJ concerns the port State’s power to prosecute ships and to impose fines on them for violations of international rules and standards； in the case of PSC， the port State limits itself to taking an administrative measure of control， such as detaining a ship in port until various corrective measures have been taken or ordering it to proceed to the nearest shipyard for repairs， but the port State does not prosecute the vesselfor an alleged breach of its legislation.35Ho-Sam Bang， Is Port State Control an Effective Means to Combat Vessel-Source Pollution？ An Empirical Survey of the Practical Exercise by Port States of Their Powers of Control， The International Journal of Marine and Coastal Law， Vol. 23， 2008， p. 717.

In regards to enforcement jurisdiction， UNCLOS empowers a port State to exercise enforcement jurisdiction over foreign vessels that are voluntarily lying in one of its ports in respect to violations committed either on the high seas or in the national waters of another State， yet， to date， there have been no court cases， in practice， where port States have prosecuted foreign vessels for illegal discharges occurred outside their maritime zones under Article 218 of UNCLOS. Neither the Law of the Sea Bulletin nor the UN website gives any details of the practical application of national legislation implementing Article 218 of UNCLOS. This is also the case with the annual reports on Oceans and Law of the Sea of the UN Secretary-General.36Ho-Sam Bang， Port State Jurisdiction and Article 218 of the UN Convention on the Law ofSea， Journal of Maritime Law and Commerce， Vol. 40， 2009， p. 312.This phenomenon is mainly caused by a lack of interest by port States to involve themselves in pollution incidents occurring outside their maritime zones， given that port State enforcement is optional， rather than mandatory.

PSC as a means to combat vessel-source pollution is implemented through regional （but not global） PSC MOUs. Although from the data concerning regional PSC MOUs currently available it is premature to assess the practical effects of the more concerted exercise of PSC， it is clear that many port States， in particular the parties to the Paris and Tokyo MOUs， have been vigorously pursuing action against substandard ships and combating operational vessel-source pollution by ensuring that international anti-pollution standards are met.37Ho-Sam Bang， Is Port State Control an Effective Means to Combat Vessel-Source Pollution？ An Empirical Survey of the Practical Exercise by Port States of Their Powers of Control， The International Journal of Marine and Coastal Law， Vol. 23， 2008， p. 759.Therefore， it is undeniable that PSC has played， and will continue to play， an important role in combating vesselsource pollution.

IV. Drawbacks of Port State Prevention， Reduction and Control of Vessel-Source Pollution and the Ways to Improve Them

Port State jurisdiction over vessel-source pollution represents a compromise between coastal and flag State jurisdiction. Port State jurisdiction can facilitate theinvestigation and the institution of proceedings against substandard vessels， and it interferes much less with freedom of navigation. For these reasons， it is fair to say that port States play a major role in combating pollution from ships. However，States with more ports will shoulder more responsibility， which clearly exposes the inherent limitations of PSC.

First， it is costly for port States to enforce laws， but UNCLOS lacks provisions requiring flag and coastal States to share the costs arising from law enforcement with port States. In the first place， UNCLOS Article 228（1） prescribes that when proceedings instituted by the flag State have been concluded， the proceedings initiated by the coastal State， in respect to any violation committed by a foreign vessel beyond the territorial sea of the State， shall be terminated. Additionally， it states that upon payment of costs incurred with respect to such proceedings， any bond posted or other financial security provided in connection with the suspended proceedings shall be released by the coastal State. Nevertheless， UNCLOS merely mentions the costs incurred in respect to such proceedings， but not the costs incurred to the port State as a result of its law enforcement activities. In addition，UNCLOS Article 236 lays down the principle on sovereign immunity. This article stipulates that the provisions of UNCLOS regarding the protection and preservation of the marine environment do not apply to any warship， naval auxiliary， other vessels or aircraft owned or operated by a State and used， for the time being， only on government non-commercial service. Such vessels or aircraft are subject to the exclusive jurisdiction of the flag State. In this case， the States affected by any environmental damage caused by such vessels or aircraft will find it impossible to institute proceedings directly on the basis of UNCLOS.

Therefore， when a foreign vessel violates the applicable international rules and standards， the flag State and/or the coastal State bear the responsibility of paying the port State for the costs reasonably incurred in implementing such rules and standards. For this purpose， a new international mechanism should be established to ensure that the port State may， with respect to the costs of law enforcement，institute proceedings against the flag State and/or coastal State to get compensation for the damage suffered. However， it is difficult to establish such a mechanism due to obstacles caused by the principle of equal sovereignty.

Second， States should cooperate further to ensure adequate and prompt compensation for the damage to the marine environment. Specifically， States may cooperate to implement the existing rules of international law and to develop international rules regarding assessment of damage and liability for compensationand the procedures to settle relevant disputes. Furthermore， where appropriate，States may work together to create an adequate compensation standard and procedure， such as establishing compulsory insurance programs or compensation funds.

Third， excessive enforcement should be avoided. A vessel may call at ports of many different States， so unnecessary inspection of vessels by port States should be avoided. Rather， port States should cooperate to develop corresponding rules to avoid excessive enforcement against vessels and causing damages and disputes. Article 226（2） of UNCLOS stipulates that States shall cooperate to develop procedures for the avoidance of unnecessary physical inspection of vessels at sea. Under the PSC regime， States within the same regional MOU should act in a manner consistent， so far as is practicable， with the arrangement in order to strengthen their cooperation. Moreover， different regional MOUs should follow this model to better communicate and coordinate with each other to ensure the safety of ships in different regions， to prevent marine pollution and to avoid the excessive enforcement against vessels.

Fourth， port States should transform the enforcement and safeguard mechanisms into their national laws and rules to ensure the success of global efforts to handle the marine environment crises. UNCLOS Article 218 states that a port State may undertake investigations and institute proceedings in respect to any discharge from a vessel on the high seas in violation of “applicable international rules and standards”. Also， it may undertake investigations in respect of a discharge violation committed in the marine waters of another State and， when requested by that coastal State， the flag State， or a State damaged or threatened by the discharge violation， institute proceedings against such violation. Article 218 limits the enforcement jurisdiction of the port State into implementation of “applicable”standards. The question whether “applicable international rules and standards” can be applied to a port State depends on the provisions of the national laws of that State with respect to the application of international law to that State. International law normally applies to a State in two ways： incorporation and transformation. Incorporation means that international law may be directly applied to a State， and transformation means that international law should first be transformed into the national law of a State before being applied within the State. With respect to port States that apply international law through transformation， they should implement the applicable rules and standards under their national laws and rules. Therefore，port States should transform the enforcement and safeguard mechanisms into theirnational laws and rules.

V. Concluding Remarks

Port States have unparalleled advantages over flag and coastal States in vesselsource pollution prevention， reduction and control， which has drawn the attention of the international community. Therefore， UNCLOS grants port States greater authority by providing that a port State has jurisdiction over pollution offences committed by visiting foreign vessels when the offences have either occurred on the high seas or in the national waters of another State. Additionally， UNCLOS also establishes detailed enforcement and safeguard mechanisms with respect to vesselsource pollution. PSC， the primary form of port State jurisdiction， was developed quickly and at almost at the same time. A full set of effective enforcement and safeguard mechanisms in respect to PSC has been established and achieved remarkable results in combating pollution from ships.

China has an abundance of sea ports along its coast line. However， the international trade and shipping boom of China has brought ever-increasing pollution from vessels. It damages the marine ecological environment of Chinese coastal areas and hinders the sustainable development of China’s marine economy. Hence， how to deal with vessel-source pollution and protect marine ecological environment is an important issue that China should address in order to attain the strategic goal of building China into a maritime power. China， being a State party to UNCLOS and a member State of the Tokyo MOU， has performed the responsibilities and duties of a port State. In 2014， China implemented a new mechanism for PSC inspection， resulting in some changes to China’s PSC inspection efforts. Specifically， compared with figures from the previous three years， the retention rate， the defect quantity， the defects of safety management systems and other indicators for PSC inspection in China dropped throughout 2014.38Release of the 2014 Annual Report on PSC Data of China， at http：//www.zgjtb.com/2015-04/07/content_24067.htm， 22 July 2015. （in Chinese）That year， 52 offices in charge of PSC inspection in China conducted initial PSC inspection on 7，356 foreign ships and detected 35，606 deficiencies， an average of 4.84 deficiencies per ship. Among them， 484 ships were detained， giving adetention rate of 6.56%.39This data is the sum of the four quarterly figures in 2014. See China Maritime Safety， Nos. 5， 8 & 11， 2014， No. 2， 2015. （in Chinese）Notwithstanding these achievements， we should keep in mind the deficiencies found in China’s efforts in combating pollution from ships. China should， inter alia， transform the enforcement and safeguard mechanisms under international conventions into its national laws and rules， specifying the officers in charge of marine environmental law enforcement and the division of their work. Additionally， China should endeavor to develop the procedures for port States to claim compensation from flag States and coastal States with respect to the costs of law enforcement.

Translator： XIE Hongyue Editor （English）： Ashley Hewitt

© THE AUTHORS AND CHINA OCEANS LAW REVIEW

* JIANG Jiadong， Lecturer， Teaching and Research Office of Maritime Law Enforcement，Department of Ship Command， China Maritime Police Academy， and Ph.D. candidate matriculated in 2011， KoGuan Law School， Shanghai Jiao Tong University. E-mail：jdjiang2311@126.com.

** JIANG Wei， SJD， lecturer at the Center for International Law Study， Northwest University of Politics & Law.