항만국통제 지역협력체제의 조약화 방안에 관한 연구

Abstract

Vessels have their own unique dangerousness and characteristics of isolation from shore. Because passenger ships carry many lives and cargo ships load and transport goods, the economic value of the cargo and the ship itself becomes great. So even though it is a private possession, it should be treated as a public property and needs a safety maintenance.

There are many factors that threaten the safety of sea and marine environment on these vessels. There is a global effort to eliminate these elements that threaten the safety of vessels at sea and reduce accidents as many as possible. There are institutions like port state control, vessel traffic system, vessel Inspection etc. to secure these matters. I, particularly, study in this paper port state control that removes sub-standard ships.

Port state control can be simply defined as a control of foreign vessels in their port and territorial waters to protect the safety of sea and marine environment. Traditionally, vessels nationality adhered to the principle of flag state and the vessel's safety at sea and protection of marine environment must be applied and fulfilled by the flag state but if the flag state cannot fulfill this, as a complementary role UNCLOS approved the role of coastal state and port state to comply with the international regulations and standards.

With the transition from flag state principle to coastal state principle, and from coastal state principle to port state principle, port state control developed systematically with the aim of removing sub-standard ships. Also, several states that carried out port state control on their own established regional cooperation scheme to effectively remove sub-standard ships.

MOU system for port state control that has been established by regional group showed a great difference in inspection results due to economic ability, technology, budget, implementation plan and policy. In order to reduce sub-standard ships efficiently, there must be a balance between advanced MOU and underdeveloped MOU. Especially, mutual cooperation between MOUs regarding technical support, financial support, training of port state control officers etc. should be carried out between the advanced countries and the underdeveloped country to solve the problem of regional cooperation scheme and prevent convenient ports.

But this regional cooperation scheme does not have legal binding and basically has the problem of effectiveness. The enforcement of a global agreement would be a ideal method in order to solve this problem. However combining regional factors to sign a regional agreement would be a more effective countermeasure rather than those of international agreement because of the difference of economy, culture and quantity of goods etc. among regions.

I studied regional MOU's legal characteristics and its limitation. Part of regional MOU's legal characteristics has the characteristic of a convention but it does not have an article regulating the rights or obligation of each nation. Therefore, it does not have legally binding force as a convention.

It is obvious to use treaty system in regional cooperation scheme to enforce port state control effectively to remove sub-standard ships. The efficient execution of the scheme was possible as it has not legal binding in the beginning, however, which gave rise to the limitation of enforcement in the end. The appropriateness to make MOU a compulsion is that regional agreement is more desirable than global agreement due to economic, cultural, political difference in the regions.

The legal basis to carry out port state control is a compulsoriness, while MOU scheme is voluntary. So, Legal system of port state control is not consistent. Also, lack of forcibleness leads to different strictness which induces lots of ships to the convenient ports. While there is a tendency to force non-convention states which adopt the principle of 'No More Favorable Treatment' and port state control in Paris MOU is compulsory.

In conclusion, regional cooperation scheme has no legal binding force which results in limitation of enforcement. Thus the adoption a treaty would be the best way to remove sub-standard ships. The Regional present cooperation scheme(regional MOU) takes a form of basic treaty, but actually does not have a binding force and is showing its limit. Therefore, the aim of port state control will be achieved in case that above mentioned insufficiency is cleared and incorporated into a binding treaty. This is the way to go towards the safety.