공해에서의 선박/선원의 행위에 대한 항만국의 관할권 행사와 항행의 자유

The Relationship between the Exercise of Port State Jurisdiction over Activities of Ships and their Crew on the High Seas and Freedoms of the High Seas: A Critical Appraial of the Recent Jurisprudence of International Tribunals

Port State jurisdiction is gaining traction as a means to overcome the regulatory limitations of flag state jurisdiction. Seen from the perspective of the international legal theory of jurisdiction, port state jurisdiction can be explained as a combination of the exercise of extraterritorial prescriptive jurisdiction or extended territorial prescriptive jurisdiction on matters that take place on ships on the high seas, and the exercise of enforcement jurisdiction when that ship enters the internal waters of that port State. Despite the apparent usefulness of the concept in empowering States in regulating actions that threaten the environmental sustainability of the high seas, this concept bears many uncertainties when it is subjected to close examination from the perspective of the international law of jurisdiction. This paper aims to examine this uncertainty in light of recent international jurisprudence on the matter, the M/V Norstar Case and the Enrica Lexie case, and proposes research on alternative theoretical frameworks to explain the phenomenon of port state jurisdiction.