The capacity to act as a port state in international law is best described by the specific powers exercised over foreign ships, namely inspection, detention, expulsion or request of any type of information prior to the entry into the port. Many of these powers are explicitly attributed to the state in multilateral instruments, whereby the flag state consents to having its ships subject to the jurisdiction of the port state. Notwithstanding the consensus around the complementary nature of port state jurisdiction with respect to certain obligations of the flag state, the port state is not limited to fulfilling a secondary role. This is especially visible in the prevention, reduction and control of ship-source pollution, where some port states have not hesitated in acting regardless of an expressed consent by the flag state to the rule or standard being applied with the support of port powers. Not only do port states use more stringent enforcement powers to ensure that international treaties are effective, but they also prescribe novel rules and standards upon any foreign ship that approaches the port, often as a means of breaking an international negotiation deadlock. This study discusses the international legal basis for such unilateral jurisdiction by analyzing the principles of state jurisdiction under the dichotomy parochial/cosmopolitan. By interpreting the stated and implicit purposes of port state actions under that dichotomy, this study proposes that states are finding a legal ground to act based on certain legal functions they fulfill in the international legal order. This argument puts into perspective the assumed self-sufficiency of territoriality and shows how unilateralism may also serve to seek to set universally applicable norms.
Irregular migration by sea leads states such as Italy and Australia to conduct maritime rescue operations involving refugees and other migrants. During these operations, states must deal with the question of where to disembark survivors. The law of the sea regime obliges states to ensure survivors are delivered to a 'place of safety', arguably requiring maritime officers to merely consider the physical safety of survivors immediately on disembarkation. Non-binding International Maritime Organization guidelines state that the need to avoid disembarking refugees and asylum-seekers in the states of departure or origin is also a consideration. The guidelines refer to other 'relevant' international law, including treaties dealing with 'refugee refoulement' or refoulement in connection with a risk of torture. Under the international human rights law regime, including international refugee law, states' obligations in relation to non-refoulement are broader and prohibit the return of refugees and migrants to states where they directly or indirectly face persecution, torture or other serious harm. In interpreting 'place of safety', this work argues that there is insufficient consensus to integrate the two legal regimes. Nevertheless, states can be under co-existing human rights obligations that place limits on the disembarkation of rescued refugees and migrants.
This case note analyses the marine environmental protection issues that arose in the 2016 South China Sea arbitration. Given that the South China Sea includes highly productive fisheries and extensive coral reef ecosystems, the alleged breach of environmental obligations under the United Nations (UN) Convention on the Law of the Sea was important in this arbitration. The Arbitral Tribunal examined three obligations concerning marine environmental protection under the UN Convention on the Law of the Sea: the obligation of due diligence; the obligation to conduct an environmental impact assessment; and the obligation to cooperate. The Tribunal's arbitral award contributes to the clarification of the interpretation of relevant provisions concerning marine environmental protection under the Convention. Furthermore, a remarkable feature of the arbitration was that the Tribunal appointed experts to have an independent opinion with regard to environmental damages arising from China's activities in the South China Sea. The use of experts in the South China Sea arbitration is worth noting, since scientific evidence is of particular importance in the settlement of international environmental disputes.
This follow up paper concerns relational contracts in the maritime industry from a legal, game theoretical, and strategic perspective. The paper discusses the purpose of a relational contract, the specific legal characteristics in a relational contract, and draw up economic explanations of the relations among the clauses in relational contract. Strategy and game theory are used to explain the output of negotiations and explain how to behave if to obtain joint utility in a contractual relationship in the maritime industry.
The regulation of greenhouse gas emissions from international shipping is becoming a matter of increasing concern. Two issues arise in particular. The first issue concerns the elaboration of rules on this subject. In this regard, Annex VI of the International Convention for the Prevention of Pollution from Ships (MARPOL), amended in 2011, constitutes a key instrument because it was the first legally binding climate change instrument since the Kyoto Protocol. The second issue relates to effective compliance with relevant rules. While the flag State has the primary responsibility to implement relevant rules concerning the regulation of greenhouse gas emissions from international shipping, the flag State responsibility alone is inadequate to secure effective compliance with relevant rules. Thus, there is a need to examine the question whether and to what extent coastal and port States can regulate greenhouse gas emissions from vessels in international law. This article seeks to address these two issues. The article concludes that while port States can perform a valuable role in effectuating global rules provided in MARPOL Annex VI, port State control encounters several challenges. Thus, securing compliance with relevant rules should be an important issue in the regulation of greenhouse gas emissions from international shipping.
This edited volume examines the continued viability of international human rights law in the context of growing transnational law enforcement. With states increasingly making use of global governance modes, core exercises of public authority such as migration control, surveillance, detention and policing, are increasingly conducted extraterritorially, outsourced to foreign governments or delegated to non-state actors.
New forms of cooperation raise difficult questions about divided, shared and joint responsibility under international human rights law. At the same time, some governments engage in transnational law enforcement exactly to avoid such responsibilities, creatively seeking to navigate the complex, overlapping and sometimes unclear bodies of international law. As such, this volume argues that this area represents a particular dark side of globalisation, requiring both scholars and practitioners to revisit basic assumptions and legal strategies.
The volume will be of great interest to students, scholars and practitioners of international relations, human rights and public international law.
This article discusses the role of private regulators within the international legal framework of Arctic shipping. The role of private actors has been acknowledged both in legal scholarship and policy papers; but it has not yet been placed in the centre of attention. This article does so by analysing the role of private actors under the Polar Code and three types of private regulation — guidelines of classification societies, requirements of insurance industry and private contracting. It concludes that private actors have an essential role both in developing and effectuation of public international law and thus in achieving sustainable Arctic shipping.
The costs of buying tonnage – whether new built or second hand – are so high that most Owners will need the assistance of Financers in order to be able to make the purchase. This raises several legal questions regarding ship’s finance. This article will provide a discussion of certain aspects of ships’ finance under Danish Law relevant to the charterparty trade.
The factual starting point for the paper is that a vessel is working in or intended to work in the charterparty trade, most particularly under long term time charterparties or Contracts of Affreightment. In such a situation, we find a tri-party relationship between the Financers, the Owners and the Charterers. When things are well, the interests of these three parties are on a par. The Charterers wish to use the vessel in order to make a profit, enabling them to pay the Owners. The Owners, receiving the hire or freight, are able to pay the crew, maintain the vessel and pay the Financers. However, the moment the financial stability of the Owner or the Charterer is threatened, the three parties will tend to have conflicting interests. The Financers, if unpaid, may wish to sell the vessel in order to cover at least some of their losses. The Charterers may wish to continue the use of the vessel, which may be inconsistent with a (forced) sale. Alternatively, the Charterers may wish to be freed of their obligations under the charterparty if the Owner enters into receivership or other types of insolvency proceedings. They may not be comfortable with e.g. having the Owners estate in bankruptcy running the vessel. And ultimately the Owners estate may wish to reconstruct the company in order to stay in business, for which end keeping the vessel as an asset and the income flowing from a (continued) charterparty may be a precondition.
The paper will discuss the problem with the starting point in Danish law on the subject, and investigate whether Danish law is apt to protect the conflicting interests of the three parties. However, the paper will make comparisons to other laws, mainly English law and Norwegian law. Also, the paper will discuss the general problems with the definitions of how a working vessel should generally be considered in the eyes of the law (is it simply any piece of chattels or is it more akin to a whole production facility?) and as well as whether the service provided by both owners and charterers under a charterparty should be considered personal or generic. Thus, although the paper uses Danish law as a starting point, it provides points of discussion of more general interest.
The paper ultimately concludes that Danish law does provide an adequate protection and balancing of the interest of the parties, but that uncertainties and the general inaccessibility of the law must be considered to restrict its use to the full – to the detriment of market interests.