By Miranda Wecker
Center for International Environmental Law
South Bend, Washington
International law governing the uses of the oceans provides the foundation for important U.S. authorities. International law underlies the fight of U.S. commercial and military ships and aircraft to freely use the seas for navigation and overflight, supports the rights of scientific research vessels to conduct critical studies of oceanic and climatic processes, provides the basis for controlling pollution that would damage U.S. coastal environments, and underwrites dispute settlement procedures that resolve conflicts peacefully. But international legal principles also restrain the United States from unilaterally applying to foreign vessels standards as stringent as may be desired.
It is within this context of international law that the United States must fashion a strategy for protecting its waters and shorelines from marine debris and for promoting progress at the regional and global levels. To elucidate options available to the United States in advancing towards cleaner seas, it is important to understand both the opportunities offered by international law and the constraints on unilateral action that it imposes.
The earliest principles of international law embraced the notion of unimpeded and unrestricted use of the oceans. The freedom to transport goods was instrumental in the dramatic rise of international commerce and fundamental to stable relations among nations. Traditional high seas freedoms included the fights of navigation—both civil and military—and the right to freely take the sea's living and mineral resources. Throughout history, nations also have demanded mutual recognition of sovereign fights in waters adjacent to their soil (i.e., in territorial seas), in order to provide for national defense. Traditional claims to
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea APPENDIX C The International Law of the Sea: Implications for Annex V Implementation By Miranda Wecker Center for International Environmental Law South Bend, Washington International law governing the uses of the oceans provides the foundation for important U.S. authorities. International law underlies the fight of U.S. commercial and military ships and aircraft to freely use the seas for navigation and overflight, supports the rights of scientific research vessels to conduct critical studies of oceanic and climatic processes, provides the basis for controlling pollution that would damage U.S. coastal environments, and underwrites dispute settlement procedures that resolve conflicts peacefully. But international legal principles also restrain the United States from unilaterally applying to foreign vessels standards as stringent as may be desired. It is within this context of international law that the United States must fashion a strategy for protecting its waters and shorelines from marine debris and for promoting progress at the regional and global levels. To elucidate options available to the United States in advancing towards cleaner seas, it is important to understand both the opportunities offered by international law and the constraints on unilateral action that it imposes. The earliest principles of international law embraced the notion of unimpeded and unrestricted use of the oceans. The freedom to transport goods was instrumental in the dramatic rise of international commerce and fundamental to stable relations among nations. Traditional high seas freedoms included the fights of navigation—both civil and military—and the right to freely take the sea's living and mineral resources. Throughout history, nations also have demanded mutual recognition of sovereign fights in waters adjacent to their soil (i.e., in territorial seas), in order to provide for national defense. Traditional claims to
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea some more limited authorities also have been asserted in a broader band of sea, referred to as the contiguous zone. The past several decades, however, have yielded an unprecedented level of conflict and competition among nations as the exploitation of ocean resources accelerated. Nations competed long distance for capture of fish and for access to minerals. They traded diplomatic protests over differences in pollution control standards and conservation of shared resources. These conflicts led to a call for a more detailed and definitive articulation of international principles of procedure, jurisdiction, and substantive obligations. In the late 1960s, national leaders began the most complex and comprehensive treaty negotiation in world history, ultimately producing a universally agreed-upon set of rules governing uses of the oceans. After a full decade of conferences involving nearly 150 nations, the Third United Nations Convention on the Law of the Sea (UNCLOS III) was adopted in 1982. In addition to a multitude of different rules, UNCLOS III provides the ground rules for each nation's approach to controlling shipborne wastes, and, in particular, the extent to which another nation's right to establish its own approach must be respected. Guyana's deposit of its ratification, on November 16, 1993, triggered the start of a one-year period following which UNCLOS III entered into force. Although most industrialized nations have not yet become parties to the treaty (pending imminent modification of the mining regime it establishes), there has long been near-universal acceptance of and support for its provisions relating to protection of the marine environment and the rights of navigation. Regardless of whether the United States becomes a party to UNCLOS III, the convention, once it has entered into force, is expected to bolster significantly international efforts to protect the marine environment. This paper examines the implications of UNCLOS III for the control of shipborne wastes. Entry into force will strengthen the legal stature of UNCLOS III's fundamental system of authorities and responsibilities for both coastal nations and nations with ships flying their flags. This system of clearly defined rights and responsibilities removes most ambiguities regarding the rights of port and coastal states to demand responsible conduct by foreign vessels and the right to take certain enforcement activities when a violation of rules occurs. The system also explicitly mandates environmentally responsible behavior by flag states with regard to regulation of their vessels. The following provisions of UNCLOS III provide relevant authorities and obligations for the implementation of MARPOL Annex V. They serve to provide the United States with justification to control the discharge of marine debris and to demand that other nations act in accordance with their duties.
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea FLAG STATE RIGHTS AND RESPONSIBILITIES A flag state has sovereign jurisdiction over vessels flying its flag1 Thus, under international law, the United States may require its flag vessels to comply with Annex V at all times, no matter where the vessels sail. In addition, pursuant to UNCLOS III, all flag states have a number of affirmative duties: to assure the compliance of their vessels with international standards (Article 217 (1)); to ensure that their vessels are seaworthy (Article 217 (2)); to periodically inspect and provide the requisite certificates to their ships (Article 217 (3)); to investigate all written complaints against their vessels and promptly institute proceedings where warranted (Article 217 (6)); to inform the relevant states and international organizations of enforcement proceedings (Article 217 (7)); and to provide sufficient penalties to discourage further violations (Article 217 (8)). These general obligations reinforce the specific duties authorized by particular treaties such as MARPOL. A flag state also has the right to require that any legal actions against its vessels by other states be suspended and all records turned over, so that it can carry out the necessary legal remedies for pollution violations .2 COASTAL STATE AUTHORITIES The rights and duties of coastal states varies in the different maritime zones recognized in UNCLOS III. In internal waters, the coastal state is recognized to be sovereign: It can place any condition on access to its ports, except in case of extreme emergency. Thus, the United States has the right to enforce Annex V with respect to any vessel that voluntarily enters its internal waters. Within its territorial sea, the coastal state has near-sovereign authority but lacks the right to hamper "innocent passage."3 The United States, therefore, may take enforcement measures within its territorial waters, so long as they do not hamper innocent passage. Physical inspections within the territorial sea are authorized, but in order to avoid undue delay, most inspections take place in ports. In general, UNCLOS III affirms the rights of coastal states to adopt laws and regulations to 1 Article 228 (3) affirms that in regard to vessels flying its flag, a State is not limited by UNCLOS III provisions governing the rights of coastal and port States. That is, the flag State can take any measures, including actions to impose penalties, irrespective of the prior proceedings of other States. 2 Article 218 (4) addresses the suspension of actions brought by port States to allow flag State enforcement proceedings. Article 228 pertains to the suspension of proceedings by a coastal State for violations of international standards committed in the territorial sea. 3 UNCLOS III defines certain acts as prejudicial to the peace, good order, or security of the coastal state and therefore not in keeping with the concept of "innocent passage." Among the actions considered prejudicial, listed in Article 19, are "(g) the loading or unloading of any commodity, currency, or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State" and "(h) any act of willful and serious pollution contrary to this Convention."
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea protect their shores, and to implement their customs, fiscal, immigration, or sanitary laws. UNCLOS III provisions pertaining to the contiguous zone reaffirm the traditional principle that the coastal state has important interests but fewer authorities: Its jurisdiction is limited to the enforcement of fiscal, immigration, customs, and sanitary laws. However, under Part XII addressing obligations to protect the marine environment, UNCLOS III establishes the new jurisdictional principle that coastal states have a recognized interest in controlling pollution within 200 nautical miles of their shores. Under the concept of a 200-mile-wide Exclusive Economic Zone (EEZ), coastal states are allowed to claim control over the exploitation of living and non-living resources, as well as to exercise the following specific pollution-control rights and responsibilities. If there are clear grounds to believe a violation took place in its territorial sea or EEZ, the coastal state has the fight to seek information from the suspect vessel while it is in the EEZ. If the alleged violation resulted in a substantial discharge causing or threatening significant pollution of the marine environment, and the vessel refused to provide information, the coastal state has the fight to physically inspect the suspect vessel while in the EEZ. If the evidence is clear and objective and the alleged violation resulted in an actual or threatened discharge causing major damage to the coastline or related interests, or to resources of the territorial sea or EEZ, then the coastal state may institute proceedings, including detention of the vessel. In relation to U.S. responsibilities for implementation of MARPOL Annex V, these UNCLOS III provisions offer firm jurisdictional grounds for direct actions against violations occurring within 200 nautical miles of U.S. shores. A new U.S. policy based on this authority was initiated recently to allow the Justice Department to take direct action against a foreign vessel when there is evidence that an Annex V violation took place within the EEZ. Although coastal states' fights clearly were expanded under the framework of UNCLOS III, there also appeared more definite articulations of the limits of prerogatives. In light of the importance of navigational freedoms and the sensitivity of nations regarding interference with their vessels, the fight of the coastal state to unilaterally adopt laws affecting foreign ships was constrained explicitly in accordance with its diminishing authorities over more distant ocean space. Within the EEZ, coastal states may adopt only vessel pollution control laws that conform to ''generally accepted international rules and standards established through the competent international organization.'' However, where there are "special circumstances" in "a particular, clearly defined area" requiting special mandatory measures due to "oceanographic and ecological condition," the coastal state may petition the competent international organization for special area designation. The coastal state then may propose the adoption of additional rules for approval by the international organization. The significance of these constraints should not be underestimated. As an
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea advocate of multilateral solutions and a key world leader on environmental issues, the United States often has been faced with accepting international standards and obligations that are less stringent than would be preferred. U.S. foreign policy is driven in part by its undeniable long-term interest in cooperating to raise international standards, and in part by its need to defend the environment. In relation to implementation of Annex V, the United States should pursue a cooperative multilateral approach that adheres strictly to the limits of U.S. authorities and emphasizes the identification of difficulties facing other countries and the provision of technical assistance to overcome obstacles. The United States also should aggressively use the recognized multilateral opportunities for accepting greater than minimal obligations, such as through special area designation. PORT STATE CONTROL An important advance in international law was made during the UNCLOS III negotiation with the detailed explication of port state authorities. If a vessel voluntarily enters a port (and thus either internal waters or an offshore terminal), then it is subject to the jurisdiction of the port state. Enforcement actions can be taken with respect to violations of applicable international standards. If, however, the violations were committed in the maritime zones of another state, the port state must receive requests for such legal proceedings from (1) the flag state, (2) the state in whose waters the violation was committed, or (3) a state damaged or threatened by the discharge violation. If the violation has caused or is likely to cause pollution in the zones of the port state, it also may proceed against a vessel in its port. A port state has an affirmative duty to comply with the requests of nations that reasonably suspect a violation took place in any of their zones. Likewise, the port state has a duty to cooperate with flag states wishing to investigate the conduct of their vessels, irrespective of where alleged violations took place. After the port state has instituted proceedings, the coastal state in whose waters the violation took place may request all the relevant records and also may demand the suspension of proceedings undertaken by the port state. Legal actions taken by flag states take precedence over actions by either port or coastal states, unless the flag state has "repeatedly disregarded its obligation to enforce effectively the applicable international rules." Cases involving major damage to a coastal state also are an exception to the rule of flag state preeminence. The rules regarding port state authorities set forth in the UNCLOS III treaty were seen widely as revolutionary: Once in force and operational, they set the stage for a new era in the enforcement of international law. The treaty's articulation of the active role that may be played by port state officials not only removed any jurisdictional questions, but also, and more importantly, bolstered the idea that port officials have an affirmative duty to inspect, investigate alleged violations, and institute proceedings. The very substantial opportunities for more ef-
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea fective implementation of Annex V through the creation and enhancement of collaborative port state control mechanisms are discussed in greater detail in the report of the full Committee on Shipborne Wastes. These opportunities are particularly worthy of exploration in relation to regional arrangements among developing countries that individually lack the infrastructures and assets needed for enforcement activities. LIMITS ON NATIONAL AUTHORITIES: SAFEGUARDS FOR INTERNATIONAL SHIPPING UNCLOS III established a number of important constraints on states with regard to their enforcement of international standards. These constraints serve to protect the legitimate interests of international shipping as well as the world community's common interest in the free flow of commerce. According to the treaty, nations may not discriminate "in form or in fact" against vessels of any other State; they may not cause undue delay; they may only apply monetary penalties for violations within the territorial sea unless the case involved "a willful and serious act of pollution"; and they must notify the flag state and other affected states of any enforcement actions. With regard to implementation of Annex V, adherence to these constraints may be particularly important in light of the difficulties associated with monitoring compliance and the corollary need for voluntary commitment to compliance. Such cooperation is far more likely if the legitimate interests of the shipping community are respected. The burdens of membership in international agreements controlling pollution inadvertently create disincentives to participation. To circumvent the tendency for ships of non-members to be held to lesser standards, many port states have adopted a policy of requiring that all ships entering their ports comply with international standards. In this way, no preference or economic advantage is given to ships of non-members. The UNCLOS III treaty recognizes and affirms that port states are empowered to require such compliance as a condition of entry. However, coastal states cannot place such conditions on access to the EEZ or territorial sea. MORE GENERAL OBLIGATIONS UNCLOS III contains a number of more general obligations that are relevant to Annex V implementation. These duties are not as clear and focused as those outlined previously, but they can be used to bolster the more specific obligations of other treaties and to motivate nations to move toward higher environmental standards of conduct. In general, parties agree to protect the marine environment through regulating polluting activities under their jurisdiction and preventing trans-boundary damage to the environment of other states. Rare and fragile ecosystems as well as
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea the habitat of endangered species must be given special protection. States are obligated to cooperate in the establishment of international environmental rules, standards, and recommended practices. States also commit to notify other nations of actual or imminent environmental threats, as well as to join in formulation of contingency plans for responding to pollution damage and threats. Cooperation among nations also must extend to scientific research on marine environmental concerns and formulation of scientific criteria upon which to base environmental standards. States must provide scientific and technical assistance and preferences for special services to developing countries, so that they can better protect the marine environment. Nations also are obliged to measure and evaluate the risks or effects of pollution. In particular, they must monitor activities they permit or engage in. The results of such studies must be publicized. If an activity is likely to harm the marine environment, then the state with jurisdiction over the activity is required to assess the potential effects and publicize the findings. States are obliged to take national measures to control pollution from land-based sources, seabed activities within and beyond national jurisdiction, dumping, vessels, and atmospheric sources. Further, nations must follow through on their commitment to environmental protection by actively enforcing national and applicable international standards with regard to all sources of pollution under their jurisdiction. States must ensure that recourse is available in their court systems for claims arising from damage to the marine environment caused by persons under their jurisdiction. States also agree to further develop agreements on liability and compensation. Although warships, auxiliary vessels, and other public vessels are exempted from the environmental protection provisions of the UNCLOS III treaty, states are obligated to ensure that such vessels operate in a manner consistent with the treaty so far as is reasonable and practicable. In the EEZs, states are obligated to ensure the maintenance of living resources through proper conservation and management measures based on the best scientific evidence available. Conservation principles are echoed in relation to highly migratory species, anadramous stocks, catadromous species, and straddling stocks. States are obligated to take measures necessary for the conservation of living resources on the high seas. Toward this end, they must cooperate with other nations, conduct scientific research, and implement conservation measures to regulate the activities of their nationals. Conservation measures are also required to protect marine mammals on the high seas. There is a duty to protect the habitat of depleted, threatened, or endangered species and other forms of marine life. Also recognized is the concept that certain clearly defined fragile or exceedingly valuable areas should be provided special protection through implementation of unusually stringent environmental protection laws.
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Clean Ships Clean Ports Clean Oceans: Controlling Garbage and Plastic Wastes at Sea STRENGTHENING THE FORCE OF IMO RULES Perhaps the most important effect of UNCLOS III, once it enters into force, will be to expand and strengthen the power and effect of International Maritime Organization (IMO) rules, codes, guidelines and other "generally accepted international standards." Nations are directed to act cooperatively through the competent international organization to establish and promote the adoption of international rules and standards to prevent, reduce, and control pollution from vessels. Nations also are committed to adopting laws and regulations to control pollution from vessels flying their flag or of their registry. These laws must have the same effect as generally accepted international rules and standards established through the competent international organization or general diplomatic conference. These provisions suggest that parties to UNCLOS III will be bound to comply with all widely recognized standards, regardless of whether they are also parties to the specific conventions under which the standards are developed. Nations that have ratified UNCLOS III may be expected, therefore, to comply with MARPOL Annex V, whether or not they are parties to Annex V. The IMO is universally regarded as "the competent international organization" in connection with the establishment of standards for the operation of vessels and for vessel-pollution control. Thus, its rules and regulations will continue to be established norms applicable to all UNCLOS III members.