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  • Author or Editor: Arron N. Honniball x

Singapore

Precautionary Unilateralism: Port State Prohibition on Open-loop Scrubber Discharges and the imo 2020 Fuel Oil Sulphur Limit

Arron N. Honniball

Arron N. Honniball

The loosely phrased, and undefined, ‘exclusive flag state jurisdiction’ principle of the United Nations Law of the Sea Convention Article 92, has arguably proved to be a red herring for states and academia, in its being raised as a limiting factor to extra-territorial prescription by non-flag states. This has extended to port state jurisdiction discussions, and was raised by analogy for aircraft, before the European Court of Justice, in relation to the limits of jurisdiction over high seas overflight. This paper argues for a limited scope to the term ‘jurisdiction’ in Article 92. It concludes that far from being a limiting factor, the principle of flag state exclusivity is solely concerned with the enforcement jurisdiction of states on the high seas. The increasing use of port state prescriptive jurisdiction, particularly those practices with extra-territorial effect, provides further evidence that this is the correct interpretation.

Arron N. Honniball

Abstract

Council Regulation (EC) No 1005/2008 provides that a third country may be identified and subject to measures if it fails “to discharge the duties incumbent upon it under international law as flag, port, coastal or market state, to take action to prevent deter and eliminate IUU fishing”. In assessing the promise or limits of this unilateral listing mechanism, the question arises as to what influence, if any, it has had on third-country legislation. This article uses a case study on port state duties, demonstrating the use and impact of the unilaterally defined port state duties and their implementation in EU practice. The latter part addresses trends in the prescriptive responses of port states, including whether the EU listing process was a contributing factor to legislative reform. Prescriptive trends highlighted are the implementation of generally accepted treaty-based port state measures, followed by three examples of expansion into port state offences.