1 Introduction
The continuing reduction of the sea ice coverage has significant implications for shipping through the Arctic Ocean. In particular, it is anticipated that the presence of commercial vessels for international trade between the Asian markets and Europe will continue to grow.1 The increased presence of various types of vessels will potentially cause significant impacts on the pristine marine environment in the Arctic.2 The international community has further developed environmental regulations for international shipping in Arctic waters under the umbrella of the United Nations Convention on the Law of the Sea (unclos) and the auspice of the International Maritime Organization.3 States, particularly flag States, are expected to diligently implement relevant international rules and standards to prevent, reduce and control vessel-source pollution of the Arctic marine environment.4
Given the strategic location of ports, it has been acknowledged that the port State could complement the flag State enforcement jurisdiction in ensuring
Ports located within East Asian States, notably China, Japan, and the Republic of Korea, have the potential to become major departing and destination ports for ships transiting through the Arctic Ocean between Asian and Europe. This chapter argues that these East Asian port States should be more proactive in taking enforcement measures of ship-source pollution which occurred during transit through the Arctic Ocean that is in violation of applicable international regulations. The issue of interest of this chapter is the port State jurisdiction of three East Asian States over visiting foreign vessels that have completed a voyage in the Arctic waters.
2 Port State Power over Foreign Vessels
2.1 The Legal Basis for Port State Power
Port serves as an important node between sea-based activities and is the hinterland connection in terms of regulating international shipping. As a matter of geography, a State exercising port State jurisdiction is, with limited exceptions such as a landlocked State connected through rivers, also a coastal State.8 While there is no official definitions of ‘port State’ or ‘coastal State’ in unclos, this chapter will use ‘port State’ in a narrow sense encompassing prescriptive and enforcement jurisdiction over the port waters only, excluding maritime zones that the State act as a coastal State. Hence, it will not cover jurisdiction
Ports, or the permanent harbour works, are regarded as part of the coast that lie within a State’s internal waters and therefore fall under its territorial sovereignty.9 The jurisdictional basis in international law for port State power is the territorial principle that when a foreign ship is voluntarily in port it surrenders itself to the territorial sovereignty of the port State.10 Customary international law and treaties acknowledge a port State’s wide discretion in exercising jurisdiction over its ports, including denying access and establishing conditions for the entry of ports.11 When regulating access to ports, port State jurisdiction is subject to the general principles such as non-discrimination, good faith and not abuse of right.12 It is submitted that the port State may exercise both prescriptive and enforcement jurisdiction over the foreign ship voluntarily present within its port waters except matters that are prohibited by international law.13
The territorial principle would not cover the exercise of either prescriptive or enforcement jurisdiction in relation to activities by the foreign ship that occurred wholly outside the port State’s territory, known as extraterritorial jurisdiction.14 The port State needs to present a jurisdictional link to justify the exercise of exterritorial jurisdiction over such matters. These links could be based on an international treaty, the person involved in the activity (nationality principle), the interests of the port State affected (protective principle), or the nature of the activity (university principle).15 The common element
2.2 Port State Jurisdiction under the Law of the Sea
Jurisdiction derives from the concept of State sovereignty that a State has the competence to regulate the conduct of natural and jurisdiction persons through legislative, executive and juridical measures.17 Jurisdiction consists of two essential components, prescriptive jurisdiction and enforcement jurisdiction. Prescriptive jurisdiction refers to the legislative action by the State to lay down the regulative framework for activities and persons under its jurisdiction, including transforming applicable international law into domestic law.18 Enforcement jurisdiction is a State’s competence to adopt reasonable measures to compel, induce compliance, or impose sanctions for noncompliance with applicable laws, regulations, or enforceable judgments by means of administrative or executive action or judicial proceedings.19 The exercise of port State jurisdiction has to comply with the principle of good faith and non-abuse of rights, which also relate to issues of jurisdictional reasonableness, proportionality, and non-encroachment upon the rights of other States.20
Port State jurisdiction under unclos can be grouped into four categories: establishing conditions for the entry of ports, exercising jurisdiction over activities occurring within ports, exercising port State control under international instruments, and exercising extraterritorial jurisdiction.21 The port State needs to adopt domestic legislation, with the exception of auto-implementable international rules and standards, to exercise the enforcement jurisdiction. Enforcement measures could be both executive and juridical depending on the domestic legal system of the port State. For the purpose of this Chapter, it will focus on the jurisdiction over matters which occurred outside of port waters relating to the foreign vessel.
When establishing conditions for the entry of ports by foreign vessels, including requirements for the prevention, reduction and control of pollution of the marine environment, the port State should give due publicity to
The port State may carry out what is commonly known as port State control to enforce internationally agreed shipping standards. Port State control was introduced in the International Convention for the Prevention of Pollution from Ships (marpol) with the intention to be a back up to flag State implementation and has been adopted in most of the technical conventions developed under the auspice of the imo.27 Under the international conventions that
The truly extraterritorial jurisdiction exercisable by a port State relates to vessel behavior occurring beyond its own maritime zones – on the high seas or in the maritime zones of other States. The port State may undertake investigation and, with sufficient evidence, institute proceedings in respect of any discharge from a vessel outside its maritime zones in violation of applicable international rules and standards established through the imo or general diplomatic conference.33 Where such violation occurred within the maritime zone of another State, the port State may only initiate proceedings over the
It must be acknowledged that the port State enforcement jurisdiction authorised by Article 218 of unclos has not been widely used except as the legal basis for the port State control measures developed by maritime conventions under the auspice of the imo.36 Article 218 uses the verb ‘may’ instead of a more stringent ‘shall’ to define the port State enforcement jurisdiction, except in the case where the port State is requested to intervene by an affected State or the flag State. Whenever the verb ‘may’ is used, a port State has discretionary powers to choose whether or not to undertake investigations or institute legal proceedings against a foreign vessel committing a discharge violation.37 In practice, the port State may lack the political and economic interests to initiative legal proceedings for a violation that derives no immediate benefit but potential prolonged port time of the alleged vessels. In addition, if a port State is too stringent in enforcing extraterritorial jurisdiction, it may become less competitive among neighbouring ports and suffer from a loss of revenue for less port calls from foreign vessels.
With the growing demand to protect the global commons, particularly the marine environment, port State jurisdiction has the potential to further support regulating activities taking place extraterritorially that harm the marine environment.38 In the context of international shipping in the Arctic waters, the East Asian port States have the legal, political and geographical basis to
3 Making a Case for the East Asian Port States
3.1 Regulating Vessel-Source Pollution in the Arctic
According to the 2019 Special Report on the Ocean and Cryosphere in a Changing Climate published by the Intergovernmental Panel on Climate Change (ipcc), Arctic sea ice has considerably shrunk in the past 30 years, and by the middle of this century, the Arctic Ocean is expected to be almost ice-free during its minimum sea ice season.39 Simultaneously with a decreasing sea ice cover in the Arctic region, an increase in ship traffic has been experienced in these waters, particularly through the Northern Sea Route (nsr) connecting Asia and Europe.40 The increased presence of international shipping means a higher probability of accidents and incidents involving various pollutants that might damage the pristine Arctic marine environment.41
The regulation of vessel-source pollution in the Arctic follows the jurisdictional framework laid down by unclos. States are expected to establish, through imo and general diplomatic conference, international rules and standards to prevent, reduce and control pollution of the marine environment from vessels.42 The flag State has the primary responsibility to ensure that vessels flying its flag comply with, at the minimum, applicable international rules and standards, with supplementary concurrent jurisdiction by coastal and port States under recognised circumstances.43
The enforcement of the Polar Code, and relevant amendments to marpol relating to discharge regulations, follow the jurisdictional framework established in unclos. The port States, both within the Arctic region and beyond, have the right to verify whether the ship has on board a valid Polar Ship Certificate, and initiate proceedings against discharge violations of the Polar Code. The faithful performance and diligent implementation by relevant port States can become an auxiliary means of effecting compliance with the Polar Code.49
3.2 The Positioning of East Asian Port States
Ports are the crucial connection of ocean-land-interface for being the departing and destination points of any international voyage. Given this strategic connection, port authorities, as proven, are important actors in ensuring the enforcement and compliance of international regulation of shipping. The three East Asian port States, China, Japan, and the Republic of Korea, have the strategic advantage and legal power to exercise port State jurisdiction over vessels engaged in voyages through the Arctic waters. In addition, as major maritime countries in terms of ship registration and the shipping industries, they all have demonstrated strong political and economic interest in engaging in Arctic affairs and cooperating with the eight Arctic States.
Major ports in the three East Asian States are the windows of the Asian market to both Europe and the North America. To take the nsr for example, there were 378 transit voyages between 2010 and 2020 including both international transit (203 voyages) and transit traffic between Russian ports (175).50 In 2020, among the 64 transit voyages of nsr, 11 had one of the three East Asian States as departure ports, and 22 as destination ports. Among the 33 vessels which called at those Asian ports before and after the nsr voyages, 20 were foreign flagged vessels other than the port State.51
All three East Asian States have shown political commitment to engage in Arctic affairs by becoming Observers to the Arctic Council in 2013 and maintaining their memberships through continuing support to its work.52 One of the fundamental mandates for the establishment of the Arctic Council is to ‘provide a means for promoting cooperation, coordination and interaction among the Arctic States, with the involvement of the Arctic indigenous communities and other Arctic inhabitants on common Arctic issues, in particular issues of sustainable development and environmental protection in the Arctic’.53 The Republic of Korea, Japan and China all published an Arctic Policy in 2013, 2015 and 2018 respectively.54 It can be observed that all three States
It has been demonstrated beyond doubt that the pristine Arctic marine environment is very vulnerable to vessel source pollution and requires dedicated protection measures.56 It could be argued that the three East Asian States could play a more effective role in ensuring compliance of the Polar Code and punish non-compliance occurring during voyages through Arctic waters. In particular, they could exercise enforcement jurisdiction as authorised in Article 218 of unclos to respond to requests from Arctic coastal States to initiate proceedings against discharge violations which occurred within their maritime zones, and initiate proceedings of discharge violations of applicable international rules and standards that occurred on the high seas.
If all three States could take the same position on their port State enforcement jurisdiction, they could establish a safety net at one end of the Arctic shipping routes to prevent substandard ships from entering the Arctic region, and catch the potential perpetrators that have violated the applicable international rules and standards during a transit in Arctic waters. Their collective positions would also ensure that none of their ports would lose a competitive standing because of a stringent enforcement jurisdiction to enforce pollution regulations. The next section will look at the specific matters on how these three States could exercise the extraterritorial enforcement jurisdiction over foreign ships that have committed a violation during a voyage through the Arctic waters.
3.3 Potential Extraterritorial Enforcement Jurisdiction Matters
3.3.1 Applicable International Rules and Standards
Under international law, ‘the internationally valid exercise of prescriptive jurisdiction in the adoption of a law is a prerequisite for the valid exercise of adjudicative or enforcement jurisdiction with respect to that law’.57 With respect to the extraterritorial enforcement jurisdiction as envisioned in Article 218, the port State would have adopted, according to its domestic legal system, laws that conform to and give effect to ‘applicable international rules and standards’ established through the imo or general diplomatic conference. However, unclos does not give a port State an explicit power to adopt such legislation. Presumably, the prescriptive jurisdiction of the port State must be implicit in Article 218 as otherwise the enforcement jurisdiction would be rendered inoperative.58 Such implicit prescriptive jurisdiction would clearly be extraterritorial in nature. It is based on the authorization of unclos and includes elements that go beyond any of the traditional customary international law bases of extraterritorial jurisdiction such as links with nationality and effects of the activity.
It must be acknowledged that the phrase ‘applicable international rules and standards’ as applied in Article 218, as well as Articles 219 and 220, remain to be clarified. There are two distinctions could be made to interpret this phrase. First, it is different from ‘particular requirements for the prevention, reduction and control of pollution’ in Article 211(3) that refer to domestic legislation for violations which occurred within the port State’s port, internal and territorial waters.59 The port State jurisdiction under Article 211(3) is based on the territorial principle whereby it is not limited to conforming to international rules and standards. Secondly, it is different from the term ‘generally accepted international rules and standards’ in Article 211(2) and (5) when referring to both flag State (as a minimum requirement) and coastal State prescriptive jurisdiction (as a maximum requirement) over vessel-source pollution. The term ‘generally accepted’ is not limited to customary international law or binding instruments between the relevant parties, but also those are of non-binding nature but would acquire such status if they were followed in state practice.60
The word ‘applicable’ has a narrower connotation. It intends to limit the exercise of the enforcement jurisdiction to the body of international rules and
The source of ‘applicable international rules and standards’ is the treaties that have been developed by States under the auspice of imo, as the competent international organization, or general diplomatic conference. Given that the violation defined under Article 218 is limited to ‘any discharge’ from a vessel, the commonly accepted international rules and standards are those included in marpol.64 Under marpol, discharge, ‘in relation to harmful substances or effluents containing such substances, means any release howsoever caused from a ship and includes any escape, disposal, spilling, leaking, pumping, emitting or emptying’.65 It includes both operational and accidental discharges, and discharges into both the water and the atmosphere.
How the port State would adopt these ‘applicable international rules and standards’ as a legal basis for exercising its enforcement jurisdiction depends on its domestic legal system.66 China, for example, has adopted a mixed approach to implement the international treaties that it has become a party whereby for most private or civil law matters the treaty provisions can be automatically incorporated into the domestic legal system.67 For the international
3.3.2 Instituting Proceedings
The port State may undertake investigations and, where the evidence so warrants, institute proceedings to exercise the extraterritorial enforcement jurisdiction authorized under Article 218. The port State may institute either administrative or judicial proceedings over the foreign vessel, depending on where the violation occurred, upon its own initiative or by request of another State.
The port State may take initiative under two scenarios. The first one is when the discharge violation occurred outside the maritime zone of another State – as on the high seas – regardless of whether such violation affected the port State.70 The second one is when the discharge violation, occurred either within the maritime zone of another State or on the high seas, has ‘caused or is likely to cause pollution in the internal waters, territorial sea or exclusive economic zone’ of the port State.71
The port State may institute proceedings in response to a request by a coastal State, an affected State, or the flag State over discharge violation by a foreign vessel that has no direct consequence to its marine environment. A coastal State, when aware of a discharge violation that occurred within its internal waters, territorial sea or exclusive economic zone, may request the port State to institute proceedings against the alleged foreign vessel that is voluntarily
The port State may initiate ‘proceedings in a court of law, or in some other type of tribunal, or proceedings of an administrative character’ according to its domestic legal system against the foreign vessel should the evidence so warrant.75 Take Chinese law for example. The Marine Environment Protection Law states that any person, both natural and legal, who violated the discharge regulations is subject to administrative punishment of revoking operational licence and monetary fines among others.76 Moreover, when the discharge violation has caused major damage to the marine environment and the marine ecosystem, the person is subject to criminal responsibilities.77 The Chinese Marine Environment Protection Law applies to its internal waters, the contiguous zone, the exclusive economic zone, the continental shelf and other maritime areas subject to the Chinese jurisdiction, but the Criminal Law refers to environment in general without explicitly identifying the marine environment.78 It is not clear whether the criminal proceedings could be applied for violations which occurred beyond its territorial sea since there has not been any judicial cases brought before a Chinese court.
It could be presumed that, when sending the request, the requesting State would provide the port State with ‘evidence’ and the legal basis of the discharge violation. It is worth noting that, given the structure of Article 218 whereby paragraph 2 is conditioned on paragraph 1, there are two potential gaps. First, the port State cannot institute proceedings against violations that occurred within the maritime zone of another State unless requested. It is not clear
The port State is obliged, ‘as far as practicable’, to comply with all three types of requests for investigation of the alleged discharge violation.79 This framework could be applied to international shipping in the Arctic. For example, the port authorities in the three East Asian countries could establish a cooperative mechanism with the Arctic coastal States whereby they could adopt a designated procedure to handle requests for investigation of discharge violation of marpol occurring within Arctic waters. Moreover, if the port authority uncovered any discharge violation occurred within the maritime zone of an Arctic coastal State, it could communicate more efficiently with the coastal State if the latter would request the port State to undertake further actions. In addition, should the three East Asian countries be so committed to protect the high seas in the Arctic, they could initiate proceedings against any discharge violation by a foreign vessel that is voluntarily in port irrespective of whether its maritime zones have been affected.
3.3.3 Safeguards
The exercise of port State extraterritorial enforcement jurisdiction is subject to a number of safeguards as required by unclos to ensure that the exercise of jurisdiction is reasonable and clearly reflects a legitimate balancing of conflicting interests, which is an integral part of jurisdictional assertions. These safeguards include procedure requirements to facilitate proceedings, a hierarchy of conflicting jurisdiction, duties to exercise jurisdiction in a reasonable and proportional manner, and obligations to assume liability when rights were unduly exercised. They can be grouped into two categories based on the subject of these safeguards, towards the foreign vessel and other relevant States.
The first group of safeguard measures are designed for actions against the foreign vessel. The port State is first required not to discriminate in form or in fact against vessels of any other State, and the exercise of powers of enforcement against foreign vessels should only be undertaken by designated officials
The second group of safeguard measures are designed to establish a balance of rights and duties among States for their respective role in regulating vessel-source pollution. The port State is obliged to promptly notify the flag State and the requesting State of any measures taken against the foreign vessel and submit to the flag State any official reports concerning such measures.86 With respect to the requesting State, both the coastal State or the affected State may also request the port State to transmit the records of the investigation.87 The coastal State is further entitled to request the port State to suspend any proceedings instituted against the foreign vessel that committed a discharge violation within its internal waters, territorial sea or exclusive economic zone.88 With respect to the flag State, it may institute proceedings against a vessel flying its flag regarding any violation of applicable international rules and standards irrespective of where the violation occurred.89 If the flag State institutes such proceedings within six months of the date on which proceedings were instituted by the port State in respect of corresponding charges, it
International jurisdictional principles are developed on the basis of the ascertainment of jurisdictional links and the balance of conflicting interests. In the context of the port State’s extraterritorial enforcement jurisdiction under Article 218, the need of balancing of rights, reasonableness and legitimacy determine the scope of the exercise of enforcement powers and ensure that safeguards exist and are taken into account to prevent undue encroachments upon recognised rights of the accused and States’ sovereignty. The encroachment upon the interests of the flag State created by the extraterritorial enforcement jurisdiction of the port State could be justified by the international community’s collective interest to protect and preserve the marine environment from vessel-source pollution, particularly in areas of high ecosystem value such as the Arctic. The flag State’s interest in this sense has been absorbed rather than been side-lined for the protection of global interests.
4 Conclusion
This chapter presents a case for the three East Asian States to exercise enforcement powers over discharge violations of applicable international rules and standards committed by foreign vessels during a journey in Arctic waters, either within the internal waters, territorial sea, or exclusive economic zone of a coastal State or on the high seas. This extraterritorial enforcement jurisdiction by the port State would supplement the traditional enforcement jurisdiction of the flag State over pollution discharges that can have detrimental effects over the pristine Artic marine environment.
There is a legal basis under unclos for the port State to exercise such extraterritorial enforcement jurisdiction to address discharge violations of applicable international rules and standards. The exercise of such enforcement powers is subject to detailed safeguard measures and requirements to balance rights and obligations between the port State and the accused, as well as between the port State and other concerned States. Moreover, the three East Asian States
The three East Asian States could take advantage of all the possible jurisdictional options in international law including the exercise of port State extraterritorial enforcement jurisdiction as acknowledged in unclos to ensure compliance with applicable international rules and standards in Arctic shipping. The three States could adopt the same position to assume such extraterritorial enforcement jurisdiction and coordinate their approaches and procedures through the existing platforms including the Tokyo memorandum of understanding on port State control (Tokyo MoU). The effectiveness of such port State enforcement jurisdiction could be further pursued by the collaboration of the Arctic coastal State and the East Asian port States. This could be done through projects undertaken by the working groups of the Arctic Council, or through bilateral arrangement among individual States.
Given the importance of the protection and preservation of the Arctic marine environment, it would be a missed opportunity if States do not utilise all potential channels to implement applicable international rules and standards developed for such purpose. The important element of utilising port State extraterritorial enforcement jurisdiction is to establish a balance that reflects an international consensus with respect to the protection of the Arctic marine environment in line with multilateral instruments and cooperative processes. The aim of the port State jurisdiction should be to enhance the efficiency of the adopted applicable international rules and standards and to create incentives to international cooperation under the same principle of common concern.
X. Zhou (et al), ‘Revisiting Trans-Arctic Maritime Navigability in 2011–2016 from the Perspective of Sea Ice Thickness’, 13 Remote Sensing, 2021, 2766,
J. Svavarsson (et al), ‘Pollutants from Shipping – New Environmental Challenges in the SubArctic and the Arctic Ocean’, 164 Marine Pollution Bulletin, 2021, 112004.
United Nations Convention on the Law of the Sea (unclos), adopted 10 December 1982, in force 16 November 1994, 1833 United Nations Treaty Series 3. International Maritime Organization (imo), Shipping in Polar Waters: International Code for Ships Operating in Polar Waters (Polar Code),
unclos, supra 3, Article 94, 211, 217, 218 and 220.
R. Churchill, ‘Port State Jurisdiction Relating to the Safety of Shipping and Pollution from Ships – What Degree of Extra-territoriality?’, 31 The International Journal of Marine and Coastal Law, 2016, 446 and 463. D. König, ‘The Enforcement of the International Law of the Sea by Coastal and Port States’, 62 ZaöRV, 2002, 14.
L. de La Fayette, ‘Access to Ports in International Law’, 11 The International Journal of Marine and Coastal Law, No. 1, 1996, 2–12. unclos, supra 3, Articles 25(2) and 211(3).
A.N. Honniball, ‘The Exclusive Jurisdiction of Flag States: A Limitation on Pro-active Port States?’, 31 The International Journal of Marine and Coastal Law, 2016, 508–510. unclos, supra 3, Article 218.
Port of Switzerland,
unclos, supra 3, Article 11.
C. Staker, ‘Jurisdiction’, in M.D. Evans, International Law (5th edition, Oxford, 2017), pp. 296–298.
unclos, supra 3, Articles 25(2), 211(3) and 255. Case concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America), 1986 i.c.j. Rep., at 111, para. 123. A.V. Lowe, ‘The Right of Entry into Maritime Ports in International Law’, 14 San Diego Law Review, 1977, 622. De La Fayette (1996), supra 6, 1–4.
unclos, supra 3, Articles 25(3) and 227. H. Ringbom, The EU Maritime Safety Policy and International Law (Martinus Nijhoff, 2008), 253–228. R.R. Churchill and A.V. Lowe, The Law of the Sea (Manchester University Press, 1999), 63.
Churchill (2016), supra 5, 457–458.
Report of the International Law Commission (ilc), Fifty-eighth session (1 May-9 June and 3 July-11 August 2006), General Assembly Official Records Sixty-first Session Supplement No.10 (A/61/10), Annex V Extraterritorial Jurisdiction, 515–520.
E.J. Molenaar, ‘Port State Jurisdiction – Toward Comprehensive, Mandatory and Global Coverage’, 38 Ocean Development and International Law, 2007, 229. S. Kopela, ‘Port-State Jurisdiction, Extraterritoriality, and the Protection of Global Commons’, 47) Ocean Development and International Law, No. 2, 2016, 92.
ilc Report (2006), supra 14, 521–522.
J. Crawford, Brownlie’s Principles of Public International Law (9th edition, Oxford, 2018), 440.
M.N. Shaw, International Law (8th edition, Cambridge, 2017), 486–489. Staker (2018), supra 10, 294–296.
Staker (2018), supra 10, 311–313. Crawford (2018), supra 17, 462.
unclos, supra 3, Articles 227 and 300. Crawford (2018), supra 17, 468–469.
unclos, supra 3, Articles 25(2), 38(2), 211(3) and 218.
unclos, supra 3, Article 211(3).
Churchill (2016), supra 5, 457–458. The Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, adopted 22 November 2009, in force 5 June 2016, Article 4(1)(b).
Churchill (2016), supra 3, 445–446.
National Research Council. 1998. Double-Hull Tanker Legislation: An Assessment of the Oil Pollution Act of 1990. Washington, DC: The National Academies Press.
Kopela (2016), supra 15, 92–95 and 105–106.
International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto and by the Protocol of 1997 (marpol), entered into force on 2 October 1983. imo, Resolution A.1138(31), adopted on 4 December 2019, Procedures for Port State Control, 2019, Section 1.4, ‘solas 1974 regulations i/19, ix/6.2, xi-1/4 and xi-2/9, as modified by solas prot 1988; article 21 of ll 1966, as modified by ll prot 1988; articles 5 and 6, regulation 11 of Annex i, regulation 16.9 of Annex ii, regulation 9 of Annex iii, regulation 14 of Annex iv, regulation 9 of Annex V and regulation 10 of Annex vi of marpol; article x of stcw 1978; article 12 of tonnage 1969, article 11 of afs 2001 and article 9 of bwm 2004 provide for control procedures to be followed by a Party to a relevant convention with regard to foreign ships visiting their ports.’
B. Marten, ‘Port State Jurisdiction, International Conventions, and Extraterritoriality: An Expansive Interpretation’, in H. Ringbom (ed), Jurisdiction over Ships – Post-unclos Developments in the Law of the Sea (Brill, 2015), pp. 117–118. marpol, supra 27, Article 5(4). imo, Resolution A.1138(31), adopted on 4 December 2019, Procedures for Port State Control, 2019, Section 2.1.
marpol, supra 27, Articles 5(2) and 6(2).
marpol, supra 27, Articles 5(2), 6(2) and (5). Memorandum of Understanding on Port State Control in the Asia-Pacific Region (Tokyo MoU) Section 4.3,
imo, Port State Control,
marpol, supra 27, Article 9(2). Tokyo MoU, supra 30, Section 3.2.2.
unclos, supra 3, Article 218(1).
unclos, supra 3, Article 218(2).
M.H. Nordquist, N.R. Grandy, S. Rosenne, and A. Yankov (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, Volume iv, (Brill, 1990), 260. T.L. McDorman, ‘Port State Enforcement: A Comment on Article 218 of the 1982 Law of the Sea Convention’, 28 Journal of Maritime Law and Commerce, No. 2, 1997, 321. H.S. Bang, ‘Port State Jurisdiction and Article 218 of the UN Convention on the Law of the Sea’, 40 Journal of Maritime Law and Commerce, No. 2, 2009, 298. Molenaar (2007), supra 15, 236.
imo, supra 31, Port State Control. imo, leg/misc.8, 30 January 2014, Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization, 58 and 66.
T. Keselj, ‘Port State Jurisdiction in Respect of Pollution from Ships: the 1982 United Nations Convention on the Law of the Sea and the Memoranda of Understanding’, 30 Ocean Development and International Law, 1999, 140.
C. Ryngaert, Jurisdiction in International Law (2nd edition, Oxford, 2015), 186–187. P. Sands and J. Peel, Principles of International Environmental Law (3rd edition, Cambridge, 2012), 193.
M. Meredith,, M. Sommerkorn, S. Cassotta, C. Derksen, A. Ekaykin, A. Hollowed, G. Kofinas, A. Mackintosh, J. Melbourne-Thomas, M.M.C. Muelbert, G. Ottersen, H. Pritchard, and E.A.G. Schuur, 2019: Polar Regions. In: IPCC Special Report on the Ocean and Cryosphere in a Changing Climate [H.-O. Pörtner, D.C. Roberts, V. Masson-Delmotte, P. Zhai, M. Tignor, E. Poloczanska, K. Mintenbeck, A. Alegría, M. Nicolai, A. Okem, J. Petzold, B. Rama, N.M. Weyer (eds.)], 212–214 and 222–223.
J.J. Solski, ‘The Northern Sea Route in the 2010s: Development and Implementation of Relevant Law’, 11 Arctic Review on Law and Politics, 2020, 383–384. Gunnarsson (2021), supra 1, 104369. Arctic Council Working Group on the Protection of the Arctic Marine Environment (pame), ‘Arctic Shipping Status Reports: The Increase in Arctic Shipping: 2013–2019’,
pame, ‘Compendium of Arctic Ship Accidents (CASA)’, Final Report (May 2021),
unclos, supra 3, Article 211(1).
unclos, supra 3, Articles 217–220.
imo, leg/misc.8, 30 January 2014, Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization, supra 36, 7–8.
imo, List of imo Conventions,
imo, mepc 68/21/Add.1, 5 June 2015, Report of the Marine Environment Protection Committee on Its Sixty-Eighth Session, Annex 10, International Code for Ships Operating in Polar Waters (Polar Code).
Z. Sun and R. Beckman, ‘The Development of the Polar Code and Challenges to Its Implementation’, in K. Zou (eds), Global Commons and the Law of the Sea (Brill, 2018), 303–325.
imo, Shipping in Polar Waters,
E. Engtrø, O.T. Gudmestad and O. Njå, ‘Implementation of the Polar Code: Functional Requirements Regulating Ship Operations in Polar Waters’, 11 Arctic Review on Law and Politics, 2020, 63.
chnl Information Office Information, ‘Analysis of Shipping traffic in the nsr waters in 2020’, 28 August 2021,
Ibid.
Arctic Council, Observers,
Declaration on the Establishment of the Arctic Council (Ottawa Declaration), Ottawa, Canada, 19 September 1996, Article 1(a).
Arctic Policy of the Republic of Korea,
Ibid. A. Tonami, ‘Arctic Policies of Japan, South Korea, and Singapore’ and A.M. Brady, ‘China’s Undeclared Arctic Foreign Policy’, in Polar Initiative Policy Brief Series, Arctic 2014: Who Gets a Voice and Why It Matters (Wilson Center, 2014),
Arctic Council, Arctic Marine Shipping Assessment 2009 Report,
ilc Report (2006), supra 14, 518.
Churchill (2016), supra 5, 463.
McDorman (1997), supra 35, 315.
International Law Association London Conference (2000), Committee on Coastal State Jurisdiction Relating to Marine Pollution, Final Report, 33–39.
Ibid., 41.
Report issued during the third session of October 18, 1985, during the Conference for the United Nation’s Convention on Conditions for Registration of Ships (unccors), Doc. td/rs/conf/19 (1985), 7.
McDorman (1997), supra 35, 319.
doalos, Office of Legal Affairs, The Law of the Sea: Obligations of State Parties under the United Nations Convention on the Law of the Sea and Complementary Instruments (United Nations, 2004), 54.
marpol, supra 27, Article 2(3)(a).
Nordquist, Grandy, Rosenne, and Yankov (1990), supra 35, 272.
J.T. Xu, ‘Several Issues on the Domestic Application of International Treaty’, 3 Chinese Review of International Law, 2014, 78–79. (徐锦堂,“关于国际条约国内适用的几个问题”,《国际法研究》,2014年第3期,69–79,78–79。).
Marine Environment Protection Law of the People’s Republic of China, adopted on 23 August 1982, third amendment adopted on 4 November 2017, Article 96. (中华人民共和国海洋环境保护法(修订),1982年8月23日通过,2017年11月4日第三次修正,第九十六条。).
Ibid., Article 2.
unclos, supra 3, Article 218(1).
unclos, supra 3, Article 218(2).
unclos, supra 3, Article 218(2).
unclos, supra 3, Article 218(2).
unclos, supra 3, Article 218(3).
Nordquist, Grandy, Rosenne, and Yankov (1990), supra 35, 358.
Marine Environment Protection Law of the People’s Republic of China, supra 68, Articles 73, 76 and 90.
Marine Environment Protection Law of the People’s Republic of China, supra 68, Article 90. Criminal Law of the People’s Republic of China, adopted on 1 July 1979, eleventh amendment adopted on 12 December 2020, Article 338. (中华人民共和国刑法,1979年7月1日通过,2020年12月26日修正案(十一)修正,第三百三十八 条。).
Marine Environment Protection Law of the People’s Republic of China, supra 68, Article 2.
unclos, supra 3, Article 218(3).
unclos, supra 3, Articles 224 and 227.
unclos, supra 3, Articles 225 and 226(1)(a).
unclos, supra 3, Article 226(1)(b).
unclos, supra 3, Article 230(1).
unclos, supra 3, Article 228(2).
unclos, supra 3, Article 232.
unclos, supra 3, Article 231.
unclos, supra 3, Article 218(4).
unclos, supra 3, Article 218(4).
unclos, supra 3, Article 217(1).
unclos, supra 3, Article 228(1).
unclos, supra 3, Article 228(1).