1. 7th Annual Colloquium of the IUCN Academy of Environmental Law - Wuhan 2009 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University The European Union as an Actor in the Governance of Prevention of Vessel-Source Pollution: its Internal Influence as well as a Source of Inspirations for China LIU Nengye

2. 7th Annual Colloquium of the IUCN Academy of Environmental Law - Wuhan 2009 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University 1. Prevention of Vessel-Source Pollution: the EU and International Law 2. Legal Instruments for the Internal Influence of the EU 3. Port State Control in Europe 4. Final Conclusions

3. 7th Annual Colloquium of the IUCN Academy of Environmental Law - Wuhan 2009 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University The EU and Shipping The market share of the fleet controlled by European shipowners has stayed at around 34% of the world tonnage for the last ten years. This represents a transport capacity of over 257 million tonnes. In terms of tonnage, 67% of this fleet is registered outside the EU. The EU has 35 000 km of coastline and hundreds of seaports. Every year some 2 billion tonnes of cargo pass through European ports. 90% of all oil trade with the EU is sea-borne, while almost 70% of EU imports pass the shores of Brittany and the English Channel.

4. 7th Annual Colloquium of the IUCN Academy of Environmental Law - Wuhan 2009 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University

5. IMO & EC: a difficult relation? -On 23 March 1998, the Council of the EU decided to conclude the LOSC Convention and the 1994 Implementation Agreement -LOSC recognizes the IMO as the only competent organization to develop safety and environmental measures for international shipping. -MARPOL 73/78 is the most important convention to prevent operational discharges. -EC can not become an IMO-member, only observer -EC can not become a party to IMO-conventions, only MS -Coastal state, port states and flag states have important competences: implementation & enforcement by MS -IMO has no enforcement mechanism towards parties, EC has (Commission and ECJ) towards its MS

6. 7th Annual Colloquium of the IUCN Academy of Environmental Law - Wuhan 2009 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University EC ‘public’ enforcement powers - The EC Treaty has,among its core tasks, the commitment to ensure a high level of the protection and the improvement of the quality of the environment, including marine environment, among the EU Member States -The European Commission is entrusted to ensure application of Community law (art. 211) -In the aftermath of the Erika oil tanker spill disaster, the European Maritime Safety Agency was established by the Regulation (EC) No1406/2002 in order to provide assistance for the Commission on monitoring the implementation of EU legislations on the prevention of vessel-source pollution

7. 7th Annual Colloquium of the IUCN Academy of Environmental Law - Wuhan 2009 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University EU ‘public’ enforcement powers - Judicial proceedings against a MS can be brought by the Commission (art. 226) “If the Commission considers that a MS has failed to fulfill an obligation under this Treaty, it shall deliver a reasoned opinion on the matter giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court” (art 226) -The Commission is empowered to request to the ECJ to impose a penalty payment on a MS that failed to comply with a previous judgment (art. 228)

8. 7th Annual Colloquium of the IUCN Academy of Environmental Law - Wuhan 2009 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University Expanding Competence towards Member States - It is clearly declared by the EU as a condition to join the LOSC that provisions on maritime transport and prevention of marine pollution fall under competences which the Community shares with its Member States It is in discretion of Member States to verity IMO Conventions The EU´action should follow the principle of subsidiarity and proportionality -The criteria of the principle of subsidiarity is so broadly formulated and based on relative notions (´´sufficiently`` and ´´better``) as to leave the EC institutions with a high level of discretion in deciding when to act

9. 7th Annual Colloquium of the IUCN Academy of Environmental Law - Wuhan 2009 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University Expanding Competence towards Member States - In the wake of oil tanker disasters such as ´Erika` and `Prestige`, the EU believed that Normal framework for international action on maritime safety under the auspices of the IMO falls short of what is needed to tackle the causes of such disasters effectively There is a need to tighten up the existing Community regulatory framework, which, incidentally, Member States are not applying properly -The qualified majority voting in the Council almost remove the capacity of a single MS to block the adoption of any EU rules -That is why the EU started working more proactive and three maritime safety legislative packages are adopted.

10. 7th Annual Colloquium of the IUCN Academy of Environmental Law - Wuhan 2009 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University Port state control in LOSC Article 219 of the LOSC: port States shall, as far as practicable, take administrative measures to prevent the sailing of a vessel which has been found to be in violation of "applicable international rules and standards relating to seaworthiness of vessels and thereby threatens damage to the marine environment". Article 219 and MARPOL (article 5(2)) establish the basic principles governing the detention in port of foreign vessels: port States must ensure that vessels shall not sail until they can proceed to sea without representing an unreasonable threat of damage to the marine environment (article 226(1)(c)). Article 226(1)(a) LOSC provides that States shall not delay a foreign vessel longer than is essential for the purposes of investigations of violations of international rules and standards.

11. 7th Annual Colloquium of the IUCN Academy of Environmental Law - Wuhan 2009 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University Port State Control (PSC) in Europe Why PSC ? The last part of the so-called safety net Paris MOU on PSC in Europe (1982) -It was the first Regional PSC MOU established in the world, which covers the European region -It is established with the intention to keep Brussels away

12. 7th Annual Colloquium of the IUCN Academy of Environmental Law - Wuhan 2009 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University EU MS and port state control COUNCIL DIRECTIVE 95/21/EC of 19 June 1995 on port State control of shipping, amended by Directive 98/25/EC of 27 April 1998, Directive 98/42/EC of 19 June 1998, Directive 1999/97/EC of 13 December 1999, Directive 2001/106/EC of the European Parliament and of the Council of 19 December 2001, Directive 2002/84/EC of the European Parliament and of the Council of 5 November 2002 Directive 2009/16/EC.

13. 7th Annual Colloquium of the IUCN Academy of Environmental Law - Wuhan 2009 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University EU MS and port state control Purposes To reduce substandard shipping in the waters under the jurisdiction of Member States by: increasing compliance with international and relevant Community legislation on maritime safety, protection of the marine environment and living and working conditions on board ships of all flags; establishing common criteria for control of ships by the port State and harmonizing procedures on inspection and detention, taking proper account of the commitments made by the maritime authorities of the Member States under the Paris Memorandum of Understanding on Port State Control (MOU)

14. 7th Annual Colloquium of the IUCN Academy of Environmental Law - Wuhan 2009 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University EU MS and port state control - the Convention on Load Lines, 1966 (LL 66), - the Convention for the Safety of Life at Sea, 1974 (SOLAS 74), - the Convention for the Prevention of Pollution from Ships, 1973, and the 1978 Protocol relating thereto (Marpol 73/78), - the Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW 78), - the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (Colreg 72), - the Convention on Tonnage Measurement of Ships, 1969 (ITC 69), - the Merchant Shipping (Minimum Standards) Convention, 1976 (ILO No 147), - the Convention on Civil Liability for Oil Pollution Damage, 1992 (CLC 92), together with the Protocols and amendments to these Conventions and related codes of mandatory status, in its up-to-date version (art. 2)

15. 7th Annual Colloquium of the IUCN Academy of Environmental Law - Wuhan 2009 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University EU MS and port state control Art. 3 …. 2. In case of ships of a gross tonnage below 500, Member States shall apply those requirements of a relevant Convention which are applicable and shall, to the extent that a Convention does not apply, take such action as may be necessary to ensure that the ships concerned are not clearly hazardous to safety, health or the environment …. 3 When inspecting a ship flying the flag of a State which is not a party to a Convention, Member States shall ensure that the treatment given to such ship and its crew is no more favorable than that given to a ship flying the flag of a State which is a party to that Convention.

16. 7th Annual Colloquium of the IUCN Academy of Environmental Law - Wuhan 2009 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University EU MS and port state control Quantitative obligations (art. 5) The total number of inspections of the ships to be carried out annually by the competent authority of each Member State shall correspond to at least 25 % of the average annual number of individual ships which entered its ports, calculated on the basis of the three most recent calendar years for which statistics are available. Qualitative obligations (art. 12) The inspections shall be carried out only by inspectors who fulfill the qualification criteria specified in Annex VII..

17. 7th Annual Colloquium of the IUCN Academy of Environmental Law - Wuhan 2009 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University EU MS and port state control Decisions that can be taken by a PSC: 1.No deficiencies or minor deficiencies that will be rectified in accordance with the Conventions: ship can leave the port 2.In the case of deficiencies which are clearly hazardous to safety, health or the environment, the competent authority of the port State where the ship is being inspected shall ensure that the ship is detained. The detention shall not be lifted until the hazard is removed or until such authority establishes that the ship can, subject to any necessary conditions, proceed to sea without risk to the safety and health of passengers or crew, or risk to other ships, or without there being an unreasonable threat of harm to the marine environment. 3.If the deficiency cannot be readily rectified in the port of detention, the competent authority may allow the ship to proceed to the nearest appropriate port where it shall be readily rectified or require that the deficiency is rectified within a maximum period of 30 days. In the event that the inspections give rise to detention, the competent authority shall immediately inform, in writing and including the report of inspection, the administration of the State whose flag the ship is entitled to fly.

18. 7th Annual Colloquium of the IUCN Academy of Environmental Law - Wuhan 2009 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University Final Conclusions The EU actively makes use of its legal instruments to expand competences towards MS and better implement and enforce international law on the prevention of vessel-source pollution. Thus, - MS now could only impose more stringent measures for the implementation of MARPOL - There is not much discussion about competence issues any more so that it is easier to amend legislations on PSC at the EU level - It really harmonized the State practice of MS on PSC, which is not only important for the competitiveness of European ports but also marine environment Protection - It is easier to get access to the information about vessels´ condition at EU level. Chinese private charters can also benefit from that.

19. 7th Annual Colloquium of the IUCN Academy of Environmental Law - Wuhan 2009 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University Final Conclusions -Moreover, the EU exchange PSC information with U.S. and Canadian Coastal Guard Why not China in the future and Potentially, it may export substandard vessels to the rest of the world, e.g East Asia Sea, Latin America and Africa

20. 7th Annual Colloquium of the IUCN Academy of Environmental Law - Wuhan 2009 - Nengye LIU, PhD Candidate, Faculty of Law, Ghent University Thanks for your attention!