The Tokyo Mou: Its Implications for Taiwan

• Author: Chen-Ju Chen
• Pages: 99-106

(2016) 30 ANZ Mar LJ

99

THE TOKYO MOU: ITS IMPLICATIONS FOR TAIWAN

Che n-Ju C hen

1 Introduction

Most global ocean areas are operated by several Memorandums of Understanding (MoUs) on port State control.

These MoUs’ legal and political bases are rooted in the port State control concepts developed within the maritime

conventions. The port State control allows ports to inspect foreign vessels to verify that the ve ssel conditions,

equipment, personnel, and operations comply with the requirements of applicable domestic and international

regulations. Adopted in 1982, the Paris MoU on Port State Control in Europ e and the North Atlantic Ocean (Paris

MoU)1 was the first mechanism developed at the regional level—to exercise this power to inspect foreign vessels.

In December 1993, signed was the MoU on Port State Control in the Asia-Pacific Region (Tokyo MoU).2 Since

then, a group of Asia-Pacific regional ports have cooperated with each other to harmonize their respective

practices. Located in a strategically impo rtant international shipping route, Taiwan’s ports face various challen ges

from this regional development; particularly as Taiwan is not an International Maritime Organization (IMO)

Member State and has no means to take part in Tokyo MoU in any form. Thus, Taiwan unilaterally claimed its

compliance with relevant conventions and instruments via its domestic regulations and established its port State

control system with foreign governmental assistance.

This paper co mmences with port State jurisdiction and port State control concepts established under the law of

the sea. Next, investigated at the regional level are the Tokyo MoU concepts and practices. Given Taiwan’s status

under international law impedes its international law approaches, this paper investigates how Taiwan responds to

such r egiona l development. Conclusively, this paper intends to point out —based on previous regional

experiences—what areas Taiwan can improve on to effectively enforce its port State control system.

2 Port Sta te Jurisdic tion and Po rt State Control under the LOS Convention

2.1 Port Sta te Jurisdic tion

Upon the most extensive and comprehensive codification activities under the UN aegis,3 the UN Convention on

the Law of the Sea (LOS Convention)4—in 1982—was adopted to act as the most fundamental legal instrument

of maritime activity governance. As the “constitution for the oceans,” this Convention establishes maritime zones,

including those under coastal State jurisdictions (internal waters, archipelagic waters, territorial seas, contiguous

zones, exclusive economic zones and continental shelves), as well as those outside coastal State jurisdictions (high

seas and the Area). These establishments show that the LOS Convention does not deal with port State jurisdiction

in great depth.

More specifically, over the internal waters and territorial seas, the coastal States enjoy full jurisdiction with the

major exception of foreign ve ssels ’ innocent passage rights.5 In faci ng any conditions breaches involving access

admission to the coastal States’ i nternal waters and ports, the coastal States are granted the right to take the

necessary prevention steps.6 In contrast, over the high seas, it is the flag States’ responsibility to carry out the

duties to exercise the jurisdictions and controls over vessels flying their respective flags or registries. 7 These flag

States’ duties include enforcing applicable international rules and standards established via the competent

international organization or general diplomatic conference, along with domestic laws and regulations adopted

accordingly with the LOS Convention to prevent, reduce, and control vessel-source pollution.8 To complement

this often ineffective flag State jurisdiction, the port States are granted enforcement jurisdiction regarding

discharges from vessel s outside of their waters. 9 T he jurisdiction granted to port States is largely established in

1 Paris Memorandum of Understanding on Port State Control (Paris MoU), opened for signature 26 January 1982, 21 ILM 1 (entered into

force 1 July 1982).

2 Memorandum of Understanding on Port State Control in the Asia-Pacific Region (Tokyo MoU), opened for signature 2 December

1993 at 15 April 2016 (entered into force 1 April 1994).

3 Tullio Treves, United Nations Convention on the Law of the Sea (2008) U.N. Audiovisual Library International Library

at 15 April 2016.

4 United Nations Convention on the Law of the Sea (LOS Convention), 1982, 1833 UNTS 397.

5 Article 17 of the LOS Convention.

6 Article 25(2) of the LOS Convention.

7 Article 94 of the LOS Convention.

8 Article 217 of the LOS Convention.

9 Article 218 of the LOS Convention; Robin Rolf Churchill and Alan Vaughan Lowe, The Law of the Sea (3rd ed, 1999) 350.