recognition of its potential prevailed over skepticism and led IMO in 1991 to invite
“Governments to consider concluding regional agreements on the application of port
state control measures in co-operation with the Organization and to provide information on any such regional agreements concluded and the action taken to implement their provisions.”
16 MoUs were established in other regions from the 1990s
following the success of the Paris MoU.
17 There are at present nine regional
agreements in operation worldwide: the Tokyo MoU (Pacific Ocean), Acuerdo de
Viña del Mar (South and Central America), Caribbean MoU, Mediterranean MoU,
Indian Ocean MoU, Abuja MoU (West and Central Atlantic Africa), the Black Sea
MoU, and Riyadh MoU (Persian Gulf).
The key to any effective regional port state control agreement is the commitment
of each contracting state to inspect a regionally-agreed minimum ratio of the foreign
vessels calling its ports for compliance with the international safety standards
stipulated in the MoU.
18 Port state authorities inspect ships for their compliance
with standards for design, construction, operation, equipment, maintenance, and
manning. Ships found with serious deficiencies risk substantial delays, penalties,
and even detention.
19 The threat of detention and the consequential costs that could
run into the tens or even hundreds of thousands of dollars provide the greatest
incitement for shipping companies and their ships to demonstrate continuing compliance. Indeed, the “strategic objective [of port state control] must be to produce” a
strong enough disincentive to non-compliance “by improving both the apparent and
the actual chances of the ship being inspected, improving the detection rate amongst
ships inspected, and increasing the financial and other disincentives to being found
to be operating a substandard vessel.”
20
The exercise of port state control is firmly anchored in international maritime law.
The United Nations Convention on the Law of the Sea (UNCLOS), 1982, and a
number of IMO and ILO conventions, contain explicit provisions on the matter.
1.1 UNCLOS
Art. 94 (Duties of the flag state) lays bare the vital role that port states play when
foreign states are remiss of their duties in exercising control over ships flying their
flag. It provides that a state other than the flag state, when such a state “has clear
grounds to believe that proper jurisdiction and control with respect to a ship have not
been exercised may report the facts to the flag state.”
21 Art. 219 (Measures relating to
16 IMO (1991).
17 Hare (1997), p. 571.
18 Ibid., pp. 578–579.
19 McDorman (1997), p. 229.
20 Cuttler (1995), p. 199.
21 UNCLOS, Article 94(6).
528
M. Q. Mejia, Jr.
“Governments to consider concluding regional agreements on the application of port
state control measures in co-operation with the Organization and to provide information on any such regional agreements concluded and the action taken to implement their provisions.”
16 MoUs were established in other regions from the 1990s
following the success of the Paris MoU.
17 There are at present nine regional
agreements in operation worldwide: the Tokyo MoU (Pacific Ocean), Acuerdo de
Viña del Mar (South and Central America), Caribbean MoU, Mediterranean MoU,
Indian Ocean MoU, Abuja MoU (West and Central Atlantic Africa), the Black Sea
MoU, and Riyadh MoU (Persian Gulf).
The key to any effective regional port state control agreement is the commitment
of each contracting state to inspect a regionally-agreed minimum ratio of the foreign
vessels calling its ports for compliance with the international safety standards
stipulated in the MoU.
18 Port state authorities inspect ships for their compliance
with standards for design, construction, operation, equipment, maintenance, and
manning. Ships found with serious deficiencies risk substantial delays, penalties,
and even detention.
19 The threat of detention and the consequential costs that could
run into the tens or even hundreds of thousands of dollars provide the greatest
incitement for shipping companies and their ships to demonstrate continuing compliance. Indeed, the “strategic objective [of port state control] must be to produce” a
strong enough disincentive to non-compliance “by improving both the apparent and
the actual chances of the ship being inspected, improving the detection rate amongst
ships inspected, and increasing the financial and other disincentives to being found
to be operating a substandard vessel.”
20
The exercise of port state control is firmly anchored in international maritime law.
The United Nations Convention on the Law of the Sea (UNCLOS), 1982, and a
number of IMO and ILO conventions, contain explicit provisions on the matter.
1.1 UNCLOS
Art. 94 (Duties of the flag state) lays bare the vital role that port states play when
foreign states are remiss of their duties in exercising control over ships flying their
flag. It provides that a state other than the flag state, when such a state “has clear
grounds to believe that proper jurisdiction and control with respect to a ship have not
been exercised may report the facts to the flag state.”
21 Art. 219 (Measures relating to
16 IMO (1991).
17 Hare (1997), p. 571.
18 Ibid., pp. 578–579.
19 McDorman (1997), p. 229.
20 Cuttler (1995), p. 199.
21 UNCLOS, Article 94(6).
528
M. Q. Mejia, Jr.