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PORT STATE ENFORCEMENT

SCOPE OF APPLICATION: The ever-recurrent issue of the final outcome of this Conference surfaced once more when some delegates questioned whether port State enforcement should be specific to regional organizations' arrangements or should be enshrined in a document applicable at the global level. As a proponent of the legally-binding document approach put it, the global approach can be seen as a safety net in case the application of the measures fails at the regional level. Another delegate asked that there be no safe refuge for vessels violating the conservation and management measures agreed upon. Some parties agreed to the principle only in so far as it would be applied through the regional organizations and not at the global level.

PORT STATE JURISDICTION: This issue was characterized by one of the delegates as similar to most of the questions debated during this Conference: participants may agree on the principle but dissent on its application. The principle itself was questioned by one delegate who first claimed that it was not recognized in UNCLOS, customary international law or customs of international maritime law. After another delegate pointed out that Article 218 of UNCLOS provides precisely for port State enforcement in cases of violation of marine pollution conventions, the first delegate claimed that, in any event, UNCLOS has yet to enter into force and should thus give way to customary international law which has not yet elevated port State enforcement to the status of a general principle. This last assertion was questioned by some.

PORT STATE ENFORCEMENT -- A RIGHT OR A DUTY: With regard to the provisions of the Chair's draft paper, the majority of States argued that port State jurisdiction is no longer questioned and, therefore, need not be mentioned further. As a result, verbs such as "may" need to be replaced by "should" or even "shall" to emphasize the point that in fulfilling their obligation to conserve and manage the straddling and highly migratory fish stocks, the port States are required to exercise some control over the foreign vessels that call in their ports. In particular, it was argued that application of conservation measures should not be left to the good will of the port States.

With regard to the enforcement by port States at the request of another State, several delegates expressed the view that this should remain a right and not a duty since the port State and the requesting State may have conflicting interests. It was also suggested that "Parties" rather than States be allowed to ask for port State cooperation.

MEASURES THAT THE PORT STATE MAY/SHOULD CARRY OUT:

A minor incident occurred when one delegate renewed claim of jurisdiction over the Kuril Islands. The other nation, which claims sovereignty over the same islands, regretted the intervention, claiming it contradicted the mandate of this Conference.

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