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APPENDIX C 313 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 navigationâboth civil and militaryâand 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
APPENDIX C 314 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.
