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APPENDIX C 315 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."
APPENDIX C 316 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
