Clean Ships, Clean Ports, Clean Oceans: Controlling Garbage and Plastic Wastes at Sea (1995)
Chapter: PORT STATE CONTROL
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-
