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APPENDIX C 318 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
APPENDIX C 319 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.
