PORT STATE CONTROL

PORT STATE CONTROL Port State Control An ideal of cooperation By J.J. Smith

Astart-of-year quiz in an imaginary classroom (featuring student port managers and harbour “What makes it possible for cooperation to emerge is the fact that the players might meet again.” Robert Axelrod, masters, of course) might be this: What issue among the ports of the Pacific The Evolution of Cooperation region commits them to shared, reciprocal action? Several answers can be sug- treaties including MARPOL, the Polar international law. On first impression, it gested. They include the enhancement Code, SOLAS and STCW. PSC as a sys- seems curious that port state control isn’t of maritime trade over competing modes tem for collective sharing of information a project of the IMO. (We can recall the of transport such as aviation, transfer among countries with commercial ports IMO researches, designs and adminisof skills and managerial talent, shared and, where warranted, to act against sub- ters rules for shipping, but that it is states security mechanisms, and building resili- standard ships is effective because it works as members of the Organization which ence to human-caused climate change. on the ideal of mutual burden-sharing. agree upon and implement rules. The The best answer, and not readily appar- The direct cost of inspecting and dealing IMO’s current greenhouse gas reducent because it operates effectively in the with sub-standard ships is reduced while tion initiatives — including a 40 per background, is port state control. a uniform approach among countries cent reduction of marine emissions by

Port state control (PSC), as a means of enhances deterrence over time. This is 2030 — are an example of how shipensuring safer shipping, has been three the essence of PSC: Not conformance to ping-interested states agree [and fail to decades in development in our region. a central rule found in an agreed treaty agree] on collective action.) However, we With equivalent schemes for other areas but instead a means of getting port states shouldn’t be surprised. The IMO’s conof the word’s oceans — west Africa, the to act in their self-interest. stitutive treaty prohibits rules that would Caribbean, South America, Europe, But what does PSC actually accom- economically impede the shipping trade. and others — PSC has been the single plish, and what does the future hold And, further, the idea that port authormost important governance ‘regime’ to for it? The question leads us to con- ities could enquire into a ship’s internal improve the quality of design, construc- sider how outlying countries that have business was a long time evolving. tion, and operation of commercial ships avoided PSC might be persuaded to join PSC was put on a legal footing with in the modern era. This, arguably beyond regional agreements. the arrival of the UN Convention on the the now many International Maritime As with just about everything in com- Law of the Sea (UNCLOS). This ‘conOrganization (IMO) administered mercial shipping, PSC has a footing in stitution’ for the oceans — adopted in 1982 and in force as a treaty from 1994 — deals only in passing with shipping. An example is the right of a ship to pass ‘innocently’ through another country’s territorial sea. Article 218 of UNCLOS, “Enforcement by port states” provides for investigation of a ship that has polluted while at sea. Article 219 allows ships found “unseaworthy” and therefore a threat to the marine environment to be detained and directed for repair before they leave the port state. On their own, Articles 218 and 219 did not extend PSC to information-sharing Port State Control regions. In the Pacific, the Tokyo MoU (red) and the Acuerdo de Viña del Mar (yellow). between ports or take action in nonElsewhere, the Indian Ocean (green), Mediterranean (dark green), Caribbean (olive), Abuja (west Africa) environmental matters. (dark red), Black Sea (cyan), Riyadh (Arabian/Persian Gulf) (navy) and Europe (Paris MoU) (blue). courtesy of Wikipedia.) (Map It was the 1982 Paris PSC agreement, styled as a memorandum of under-

standing (MoU) between European countries (now 27 including Canada and Russia), as a first such agreement that would have a broader scope. The Paris MoU grew out of a 1978 agreement between European countries to check labour standards aboard ships in port and later (after the calamity of the Amoco Cadiz tanker disaster on France’s Atlantic coast the same year), pollution prevention in ships. Two agreements give coverage to most, but not all, Pacific ports: the 1992 Latin America Acuerdo Viña del Mar and the 1994 Tokyo MoU. In addition, Australia, Canada, and Russia are members of other agreements. Notable regional outliers include North Korea and the U.S.

Until the second half of the 20th century, the regulation of shipping was almost exclusively a matter for flag states. Several developments combined to give coastal and port states a role to deal with unsafe shipping. These included the increasing number of commercial ships on the world’s oceans, a trend that continues. Other factors moving regulation beyond flag states included larger and more technically complex ships built outside western countries and more ships registered in flag-of-convenience countries. The era of what can be called shipping’s democratization was underway. However, high profile disasters from the Torrey Canyon (1967) to the Exxon Valdez (1989) motivated public sentiment toward greater prevention. States could less and less tolerate substandard ships trading into their ports. A sufficient consensus to act emerged and UNCLOS arrived with a legal basis for collective intervention.

The Tokyo MoU — 21 countries from Chile to China — demonstrates how PSC works. The agreement is the most important of those which apply in the Pacific. Port states commit to collectively “attain a regional annual inspection rate of 80 per cent of the total number of ships operating in the region.” At any one time, it seems reasonable to expect that no less than a quarter of the global commercial shipping fleet will be trading in the Tokyo MoU area. The agreement defines a list of international, mainly IMO-administered, treaties with standards to be checked in a visiting ship: From safety of life at sea (SOLAS) to load line certification and ballast water management.

These “rules-imposing” agreements administered by the IMO are relentlessly added to, which increases PSC’s complexity. An example is the IMO’s work to regulate air emissions and greenhouse gases in shipping. The maritime pollution convention, MARPOL, now comes with particular regulations for which a ship’s compliance may be verified under PSC, such as the required use of low-sulphur fuel (intended for air quality of ship emissions in populated coastal areas) and energy efficiency measures to reduce greenhouse gases.

The success of PSC is less a matter of shared regulation than it is the collective deterrence of sub-standard shipping. The most severe enforcement — the possibility a ship may be detained and ordered repaired — is a powerful incentive for ships to comply with the “rulesimposing” agreements of the industry. A detained ship is a costly ship and sometimes subject to competing legal claims, with risk of its loss as a business asset. The success of deterrence can be seen across the reporting figures for PSC MoUs. Year over year, port states encounter fewer troublesome ships. Recent year detentions by Tokyo MoU members bear this out. (See: <www.tokyo-mou.org>, “Detention List”) In economic terms, this is a shifting of the cost to avoid risk — designing, building, and maintaining safe ships — from the public realm (ports and those who use the oceans) to better positioned ship owners. In addition, a collective sharing of information and confidence that another PSC cooperating state will act against substandard shipping reduces what would otherwise be stand-alone regulatory costs.

We should be careful of asking too much from PSC. Port states know misplaced and excessive regulation can be a barrier to trade. And they recognize their competitive advantage interests. The goal of safer shipping involves more factors than what we can call “expected on-arrival regulation.” Joining-up PSC agreements, as larger, geographically reaching MoUs could defeat the mutual trust which limited numbers of port states share with their regional counterparts. Adding desired performance rules beyond the core of IMO-administered shipping-specific agreements threatens complexity. And the demand on national maritime administrations for the relentless work of PSC is something to consider as the global economy recovers from the SARS-CoV-2 pandemic.

Shipping is the great business of human trade. The United Nations Conference on Trade and Development, UNCTAD, reminds us of this in its Review of Maritime Trade 2020 report. (See: <www.unctad.org>) Almost 100,000 commercial ships of more than 100 tonnes operate on the world’s oceans, in 2019 carrying just over 11 billion tonnes of goods. We might observe that never in human history has so much moved for so many so efficiently. And safely.

About Jeffrey J. Smith

Dr. Jeffrey Smith teaches law at the Norman Paterson School of International Affairs in Ottawa. His areas of research include marine regulatory design and environmental protection of the oceans. A former Royal Canadian Navy chief engineer, he was counsel to the United Nations for law of the sea in East Timor (Timor-Leste) during that country’s transition to independence.