Japan strengthens port state control

UNDER international law, a port state's right to inspect vessels flying foreign flags entering their territorial and internal waters is restricted due to the sovereignty of the flag state's jurisdiction. However, several international conventions provide for vessels to be inspected when they visit foreign ports to ensure that they meet the requirements provided for in the conventions, see for example the International Load Line Convention, COLREG, SOLAS and STCW.

These Port State Control (PSC) inspections were originally intended to be a supplement to flag state inspections, but have proved to be a highly effective way of inspecting and controlling vessels in international trade, since the vessels in many cases seldom or never visit ports of their flag state. The Port State Control regime has proved to be even more effective when organised on a regional basis since vessels often call at several ports in the same region before embarking on the return voyage. This has led to the development of eight Memoranda of Understanding (MoUs) between regional port states in different parts of the world providing for regional port state control organisations.

One such MOU is the Tokyo Memorandum of Understanding on Port State Control in the Asia – Pacific Region, including Australia, China, Indonesia, Japan, Singapore, and South Korea, amongst others. Japanese authorities are now taking the initiative to further strengthen and develop their port state control regime. It can be assumed that similar measures will also be prepared and implemented by the other parties to the Tokyo MoU.

Following the terrorist attacks on the US on September 11, 2001, the IMO Maritime Safety Committee and an IMO Intersessional Working Group started to develop a programme to enhance maritime safety and to prevent terrorist attacks against the shipping industry. This intensive work culminated in the Diplomatic Conference of Contracting Governments to the International Convention for the Safety of Life at Sea, 1974 (1974 SOLAS Convention), held in London in December 2002.

The conference aimed to strengthen maritime security and to prevent and suppress acts of terrorism against shipping. It adopted a number of amendments to the 1974 SOLAS Convention. The most far-reaching was the new International Ship and Port Facility Security Code (ISPS Code). The ISPS Code contains comprehensive security-related requirements for governments, port authorities and shipping companies. The approach of the ISPS Code is that ensuring the security of ships and port facilities is basically a risk management activity where increased risks should be met by efforts to reduce vulnerability. The purpose of the ISPS Code is to provide a standardised framework for the governments' evaluation of risks.

Following up the resolutions adopted by the Diplomatic Conference, including the ISPS Code, the Japanese Ministry of Construction and Transportation has recently taken an initiative to introduce a new law controlling foreign vessels' entry into Japanese ports in order to prevent maritime terrorism and to strengthen port security. The proposed new law will include provisions allowing Japanese port authorities to refuse foreign vessels entry to Japanese ports if they are deemed to represent a security threat, and will also allow the port authorities to remove any such vessels already in port.

The new law will most likely enter force from July 1, 2004, at the same time as the amendments to the 1974 SOLAS Convention become effective. Under the proposed new law, the Japanese government will be responsible for developing plans to secure vessels and port facilities and to ensure that security personnel are present on vessels and at port facilities. The new law will also oblige foreign vessels to inform Japanese ports in advance of their intention to call. If the Japanese port authorities are unable to enforce such safety measures as deemed necessary in terms of the corresponding threat, they can refuse such vessels entry or order them to leave Japanese ports.

Both Japanese vessels and vessels of other nationalities implementing the amendments to the 1974 SOLAS Convention will be required to install security equipment, including alarm devices that can inform coastal countries of an emergency should a vessel find itself in danger. Further, the proposed new act will require flag states to confirm that vessels flying their flags meet the security system requirements set out by the new regime and also to issue International Ship Security Certificates verifying the condition of the vessel. Under the new law, Japanese port authorities will be entitled to inspect such certificates.

The new act to prevent maritime terrorism is the second recent initiative by the Japanese authorities to tighten up on protection of Japanese ports and internal waters. Last year, the Japanese Ministry of Construction and Transport submitted a proposal for a new act allowing Japanese port authorities to refuse uninsured foreign vessels entry to Japanese ports. The proposed new act aims to prevent uninsured or under-insured vessels from becoming stranded in the sea near Japan. This will hopefully help the Japanese government avoid the huge costs involved in financing expensive wreck removal operations in cases where the vessel is abandoned by the shipowner.

If the two proposed acts are passed by the Japanese legislators, this will be the first time that Japanese legislation has authorised port authorities to reject foreign vessels. This is very difficult to accomplish under existing laws.