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Summary of Working Paper No. 20-1995

IV.3.2: The Northern Sea Route. Conditions for Sailing according to European Community Legislation - with special emphasis on port State jurisdiction.

By Peter Ørebech, Norwegian College of Fisheries Science, University of Tromsø, Norway.

The Community (European Union) is rather ambitiously pursuing the goal of bringing substandard ships out of business. The "Action Programme" is promoting such efforts (see "Communication from the Commission - A Common Policy on Safe Seas". February 1993). Some steps have already been taken. As reflected in this study, I think the emerging Common Community Policy on Safe Seas does reflect what is at stake, vitalizing the efforts to eliminate substandard ships. This rather strong safety position is obviously promoting equal rights within shipping industries, and transportation along the southern and northern sea routes.

The issue dealt with in Working Paper No. 20-1995 is the safety requirements applicable to ships flying the flag of non-member states when docking in an EU or EEA (European Economic Area - the EEA Agreement of 2nd May 1992) Member State harbour. The main issue is to analyze whether Community shipping law addresses member States so as to unify domestic legislation versus third state ships, including substandard ships, those arriving from the Asian Far East along the International Northern Sea Route (NSR) as well - when docking in an EU or EEA harbour. In which way does Community Law, by unifying port State legislation, contribute to the elimination of "ports of convenience"? Is Community Law the "light in the tunnel", the only possible instrument capable of preventing substandard ships from taking charter parties to and from any of the EU or EEA harbours, including ships sailing along the NSR?

The main purpose of the report is to depict the Community port State legal situation, (including legislation as well as enforcement) with special emphasis on the classes of legal persons affected (see Chapter 1 & 2). Of course other legislation; domestic and international law is relevant as well. In this dissertation I do not however deal with these questions.

As the International Law of the Sea (See UNCLOS Article 218) does not prevent port States from making investigations and instituting proceedings in respect of any violation of applicable international rules and standards related to discharge from a vessel which is voluntarily within the port of the enforcing state, irrespective of the area outside that port State, be it internal sea, territorial sea or Exclusive Economic Zone (EEZ), incidents taking place during the NSR transportation are subject to Community port State enforcement. The Community is free to direct member States in any aspect within these framework, legislation as well as surveillance and enforcement. For this reason, I also discuss member States' enforcement power (Chapter 3).

Volume no 2 (forthcoming) addresses the World Trade Organization (WTO) General Agreement on Trade in Services (GATS) and the EU competition law in relation to equal participation rights in NSR transportation. The connection between competition and safety is simple, as unequal technical and safety requirements create unequal conditions of competition. According to WTO or EU competition law, equal rights are offered to treaty member States complying with basic legal claims.

The Community environmental and safety legislation is not directed towards ships when sailing the NSR. The importance of Community law is the implementation on all ships when docking in an EU or EEA harbour, including ships arriving from the Asian Far East through the NSR. As such, Community law does apply directly to the standard of ships, manning, the handling of goods and the transportation requirements when in the NSR. However, EU or EEA port States may, under UNCLOS Article 218(1), according to Community Law, be made responsible for undertaking investigations and institute proceedings in respect of any discharge occurring within the NSR, from a vessel being voluntarily within the port of the enforcing state, - in violation of applicable international rules and standards. For this reason and because of its vast geographical area, the Community port State position is a strong one.

The underlying idea of Working Paper No. 20-1995, is that all vessels - vessels of non-convention states as well - competing for charter parties to and from the European Community "inner market" along the NSR, must at least adhere to generally accepted rules and standards, and in some instances to advanced, unilateral Community port State standards. These technical improvements being compulsory whilst in ports are obviously still present when sailing the NSR.

The unique Community position is made possible by the huge Community law geographical scope, which includes most waters from the Dardanelles Strait to the Norwegian-Russian border, and by the potential of making compulsory, approximate or harmonized legal solutions in all member States in order to avoid "ports of convenience". All ships, substandard ships as well, destined for any EU or EEA harbour must fulfil the Community law safety requirements.

The study documents that Community law as it now stands, affects all thirdstate ships, substandard ships as well, including ships from the Asian Far East, sailing along the NSR - when docking in an EU and EEA state harbour. This includes technical vessel provisions, rules for the manning of ships and handling of goods, waste, equipment, etc. relating to foreign ships.

The Community enjoys substantial legislative power over member States as well as transiting and docking ships with regard to equipment, manning, handling and technical requirements etc. As the limitations under UNCLOS Article 21(2) is related to ships under innocent passage, advanced unilateral Community provisions might - in strict legal terms - be implemented, vis-à-vis foreign ships when docking in an EU or EEA harbour.

Even ships under innocent passage are subject to substantial coastal State jurisdiction however limited by UNCLOS Article 21(2), which prohibits the port State to regulate the "design, construction, manning or equipment of foreign ships unless they give effect to generally accepted international rules or standards". Similar restrictions are stipulated by the IMO-conventions, i.e. mainly the MARPOL and SOLAS conventions. These provisions do however give rise to interpretational doubt. As Article 21(2) relates to an extra-legal or non-binding technology-based consensus, it is my opinion that the IMO resolutions, codes, recommended practice and guidelines, although not legally binding, entitle the coastal State to regulate the hull, technical equipment, engine etc. of foreign vessels, when in transit enjoying the right of innocent passage.

As regards the enforcement competence, Community law does not make any explicit requirements, which means that Community Member port States exercise enforcement and surveillance competence solely within the framework of the Law of the Sea. The extent of enforcement is a legal question. Viewing the Community law potential, we have to study the Law of the Sea framework, which however lies outside the scope of this dissertation.

Further studies into the Law of the Sea (esp. IMO and UNCLOS) framework regarding unilateral Community legislation and enforcement, are necessary. Having made this clear, the Community might evaluate different options, i.a. the IMO tradition of implementing generally accepted international rules and standards only, or a more American approach, which establishes unilateral requirements exceeding the average of IMO-standards.