4.6 Safeguards
The most obvious limitations of the broad enforcement jurisdiction of port states over foreign ships are those that follow from UNCLOS Chapter XII section 7, which includes a variety of ‘safeguards’ to ensure that port and coastal states refrain from abusive enforcement measures. With respect to proceedings relating to penalties for non-compliance, the most important safeguards are the following:
Only monetary penalties shall be imposed. The only exceptions are violations that have taken place within the internal waters of the state and violations in the territorial sea that amount to “a wilful and serious act of pollution” (UNCLOS article 230).
Proceedings relating to pollution violations committed beyond the territorial sea of the state instituting them shall be suspended if the flag state takes proceeding to impose penalties in respect of corresponding charges against the ship within six months. This right of pre-emption by flag state is limited by certain exceptions, notably if the violation in question relates to a case of “major damage” to the coastal state or if the flag state “has repeatedly disregarded its obligations to enforce effectively the applicable international rules”. It is also clarified that this does not prevent the port or coastal state from maintaining the financial security throughout the duration of the flag proceedings (article 228(1))
Proceedings to impose penalties shall not be instituted later than 3 years from the date of the violation (article 228(2)).
In such proceedings the “recognized rights” of the accused shall be observed (article 230(3))
In addition to these, UNCLOS reiterates some more general principles of international law, such as the obligation of states to act in good faith and to refrain from the abuse of rights granted in the convention (article 300). Article 227 adds that states “shall not discriminate or in fact against vessels of any other state.”