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CHAPTER 10

The Dee Ocean Floor

A [51O. 1J Introduc tion,

By the term "deep ocean floor" is meant the area of the seabed and subsoilunderlyi.ng the high seas but outside the limits of national jurisdiction, Thelat ter limit is determined, at least for the parties thereto, by the Conventionon the Continental Shelf, although there remain questions as to the preciseseaward extent of the shelf under the Convention tests see ~su ra !$9.5 and 9.6! .

"Exploitation of Submarine Mineral ResourcesBeyond the Continental Shelf"

David S. Browning4 Texas International Law Forum 1, 10-16 �968!

Cornpeti.tion over rights to marine resources has begun, and nations areattempting to increase sovereign power in those areas of the high seas inwhich they are most interested, As nations attempt to increase the areas ofthe high seas in which they have the exclusive right to exploit marine resources,spokesmen for the international community as a whole appear to be attemptingto define areas of the high seas in which all nations have equal rights toexp loi t these resources. The deve lopment of these claims may result in inter-national conflicts regarding problems like the exploitation or ownership ofdeep ocean mineral resources and possible interference with free navigation.

A basis upon which states could claim exclusive rights over deep oceanmineral resources is the acquisiti.on of territory under the classical principlesof international law. Generally, areas that are not the territory of a parti-cular state are either res communis or res nullius. While i,nland and territorialwaters are considered to be within the territory of the coastal state, the highseas have traditionally been res communis, and therefore open to use by allnations. This use has included free navigation, trade and the exploitation ofmarine resources such as fish. It is uncertain, however, whether submarineareas beyond the continental shel f have the same res communis status as thesuperjacent waters, On the other hand, it may be said generally that areas thatare neither national territory nor res communis are res nullius, open to acqui-sition by the first state properly claiming them.

If it is assumed that submarine areas beyond the shelf are res nullius,there are several possible methods of national acquisition. A state couldattempt to base a territorial cr aim on the mere discovery of certain sub-marine areas, but something more than rrere discovery probably would be necessary.

Another method of acquisition might be a proclamation similar to the manyproclamations on the continental shelf, but it is doubtful whether a proclama-tion could stand alone. If a state were to establish installations in certainareas beyond the shelf and enjoy uninterrupted occupation and use of the areafor a relatively long period of time, it might be able to claim the area as itsterritory under the doctrine of prescription.

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O' Connell points out that possible claims to mari time areas could be basedupon "hist'oric rights" that would "validate claims to what is in the ordinarylaw unc laimable but on conditions very much more stringent than prese zi ptioncalls for." If a claim is made to a portion of the seabed beyond the shelf,title is established only gradually through the exercise of jurisdiction andthe exploitation of resources, proof of title in this sense being similar tocases of prescription. However, a large amount of historical evidence must beaccumulated toward proving, exclusive rights for a su fficient period of time topermit the expectation of the reasonably constant exercise of rights in thefuture-

Probably the most likely claims to submarine areas beyond the shelf wouldbe based upon the doctrine of occupation.

T]he realities of territorial expansion i.n the past three centurieswere such that only actual settlement and administration, coupled withat least the presumption to exclude others, by force if necessary, in-vited the sanction of the law. Hence was born the notion of effectivenessof occupation.

In the Palrnas Island case, very little sovereign acti. on was required fore f fee tive occupation of sma 11 and uninhabited islands, especially in theabsence of any competing manifestations of sovereignty. The concept ofminimum sovereign activity was further supported by the Cli erton IslandArbitration, in which very isolated and minimal sovereign activities were heldto support the claim of France. Apparently in isolated and unsettled areassuch as polar or submarine areas, very little physical control would be neces-sary to support a claim of sovereignty.

Because private companies may exploit deep ocean mineral resources thatare not clearly under the authori.ty of any national government, it i.s interestingto consider briefly whether private persons are competent to perform the actsleading to acquisition of territory. Generally, acquisition of territory cantake place only at the direction of the sovereign. Only authorized personsare competent to perform the acts leading to the acquisition of territory. Thesovereign can repudiate and thereby nullify the acts. From time to time sub-jects of various states have "proclaimed" themselves to be sovereigns overce rtain remote areas and have even pretended to sovereign jurisdic tion, butclaims of this type have not been readily recogni.zed by the nations of the world.It appears that acts of private persons authorized or directed by a state as wellas some other act by the state, such as regulation or legislation, would benecessary for the strongest possible claim of acquisition of territory throughoccupation by the private act .

Concerning the basis of possible claims to submarine areas beyond the shelf,there are two principal points of view: I! these areas are res cormrenis,incapable of appropriation by any state and subject to the inclusive use of allnations; and �! these areas are res nullius, capable of being acquired byoccupation which according to some authorities may be notional or fictitious!and are potentially subjec t to the exc lusive use of one state. However, itseems that occupation is not a reasonable or practical basis for claims ofsovereignty and exclusive rights in submarine areas- According to Lauterpacht,the main argument other than the freedom of the seas! advanced against owner-ship of submarine areas is that international law requires effective occupationfor acquisition and that occupation is not possible in submarine areas. Thisargument is based on two assumptions, nei ther of which is sound: I! principlesconcerning the occupation of dry land automatically apply to submarine areas,�! occupation is an invariable condition to the acquisition of territorial

457.

sovereignty. Lauterpacht continues that any attempt to base title to sub-marine areas upon the accepted idea of effective occupation must result eitherin a denial of the legality of the right claimed, or in depriving the conceptof effective occupation of its natural meaning ~

In order to avoid a dogmatic and strained application of the concepts ofres nullius and occupation to submarine areas, it would be more reasonable toassuage. that neither concept necessarily applies under the sea. After a dis-cussion of res nullius as arising from Roman property law, O'Conrail points outthat the problem created by the use of various Roman property law terms ana-logically in international law is that a single act of physical control, coupledwith a claim, has not been recognized in practice as a sufficient basis forsovereignty. When a state desires to prove its claim to previously unownedteriitory, it presents a detailed analysis of the history of settlement andcontrol in the area, and if it does not prove continuity of possession in thissense, it cannot prove its claim to sovereignty. O' Connell continues that thedoctrine of terra nullius, which underlies the concept of occupation, is mis-leading because, unlike res nullius in civil law, a terra nullius is notnecessarily subject to just being picked up and reduced to ownership in a moment.Courts faced with competing territorial claims have been forced to balance vastamounts of historical evidence tending to prove or disprove reduction to control.In formulating a legal system governing the possible ownership and exploitationof deep ocean mineral resources, it would seem preferable to base the systemupon a rational consideration of the economic, political and social conditionsof various countries of the world.

r'eat on Princi les Governin the Activities ofStates in the Ex loration and Use of Outer S ace

Includin the Noon and Other Celestial Bodies

January 27, l967!

Article I

The exploration and use of outer space, including the moon and other celes-t ial bodies, shall be carried out for the benefit and in the interests of allcountries, irrespective of their degree of economic or scientific development,and shall be the province of all mankind.

Outer space, including the moon and other celestial bodies, shall be freefor exploration and use by all States without discrimination of any kind, on abasis of equality and in accordance with international law, and there shall befree access to all areas of celestial bodies.

There shall be freedom of scientific investigation in outer space, inclu-ding the moon and other celestial bodies, and States shall facilitate andencourage international co-operation in such investigation.

Article II

Outer space, including the moon and other celestial bodies, is not subjectto national appropriation by claim of sovereignty, by means of use or occupa-tion, or by any other means.

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Article III

States Parties to the Treaty shall carry on activities in the explorationand use of outer space, including the moon and other celestial bodies, inaccordance with international law, including the Charter of the Uni.ted Nations,in the interest of maintaining international peace and securi.ty and promotinginternational co-operation and understanding.

Notes

�! There has been much speculation and some research on the question ofthe insnediacy and degree of wealth available from deep ocean floor resources.The most immediate resource in terms of commercial exploitability would appearto be manganese nodules and other matter deposited in nodule form! . See Mero,The Mineral Resources of the Sea �965! . Most estimates tend to be quite con-servative, but Ambassador Pardo, in speaking on Malta's General Assembly agendaitem 92 noted:

"On the assumption that an [international! agency would be created inthe year 1970, that technology will continue to advance, that exploi-tation will be commensurate with the presently known resources of theocean floor, that exploration rights and leases will be granted atrates comparable to those existing at present under national jurisdic-tion and that the continental shelf under national jurisdiction willbe defined approximately at the 200 meter isobath or at twelve milesfrom the nearest coast, we believe that by 1975, that is, five yearsafter an agency is establi.shed, gross annual income will reach a levelwhich we conservatively estimate at around $6 billion." U.N. Doc A/C. 1/PV.1516-

�! Recent developments indicate that hydrocarbons, the most valuableresource to date found on the continental shelves by several orders of mag-nitude, may also lie beneath the deep ocean floor. Oil has actually beenrecovered from a salt dome formation on the floor of the Gulf of Mexico- Seearticle in The New York Times, November 26, 1968; see also article and map inThe Saturday Review, January 4, 1969, at 106-107. For a discussion of theeconomic a=pects of manganese nodule mining, see Brooks, "Deep Sea ManganeseNodules: From Scienti.fic Phenomenon to World Resource," 8 Nat. Res. J, 401�968! .

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B. �10.2J Proceedin s in the United Nations.

United Nati.ons Genera l Assembl Resolution 2172 XXIDecember 6, 1966

opportunities available for the utilization of their resources, living andmineral,

~Realizin that the effective exploitation and developnent of these re-sources can raise the economic level of peoples throughout the world, and ' inparticular of the developing countries,

Takin i.nto account with a reciation the activities in the field ofresources of the sea at present being undertaken by the United Nations, theUnited Nations Educational, Scientific and Cultural Organization and, inparticular, its Inter-governmental Oceanographic Commission, the Food andAgriculture Organization of the United Nations and, in particular, its Committeeon Fisheries, the World Meterological Organization, the Advisory Committee onthe Application of Science and Technology to Development, other inter-governmental organizations concerned, various Governments, universities, scien-tific and technological institutions and other interested organizations,

the further development of marine science and technology and to avoid dupli-cation or overlapping of efforts in this field,

l. Endorses Economic and Social Council resolution 1112 XL! of 7 March1966 requesting the Secretary-General to make a survey of the present state ofknowledge of the resources of the sea beyond the continental shelf, excludingfish, and of the techniques for exploiting these resources;

2. ~Re uests the Secretary-General � in co-operation with the UnitedNations Educational, Scientif ic and Cultural Organization and, in particular,its Inter-governmental Oceanographic Commission, the Food and AgricultureOrganization of the United Nations and, in particular, its Committee onFisheries, the World Meteorological Organization, other inter-governmentalorganizations concerned, and the Governments of interested Member Stares, andutilizing, inter alia, such voluntary servies as may be offered - to under-take, in addition to the survey requested by the Economic and Social Council,a comprehensive survey of activities in marine science and technology, in-cluding that relating to mineral resources development, undertaken by membersof the United Nations family of organizations, various Member States and inter-governmental organizations concerned, as well as by universities, scienti ficand technological institutes and other interested organizations;

3. ~Re uests the Secretary-General, in co-operation with the UnitedNations Educational, Sc ienti f ic and Cu' tura 1 Organization and, in particular,its Inter-governmental Oceanographic Commission and the Food and AgricultureOrganization of the United Nations and, in particular, its Conznittee onFisheries, and in the light of the above-mentioned comprehensive survey toformulate proposals f or .

a! Ensuring the most effective arrangements for an expanded programmeof international co-operation to assist in a better understanding of the marineenvironment through science and in the exploitation and development of marineresources, with due regard to the conservation of fish stocks;

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b! Initiating and strengthening mari.ne education snd training programmes,bearing in mind the close interrelationship between marine and other sciences;

4. ~Re uests the Secretary-General to set up s small group of experts to beselected, as far as possible, from the specialized agencies and inter-governmental organizations concerned, to assist him in the preparation of thecomprehensive survey called for in paragraph 2 above and in the f ormulat ion ofthe proposals referred to in paragraph 3 above;

5. ~Re uests that the survey and proposals prepared by the Secretary-General be submitted to the Advisory Committee on the Application of' Scienceand Technology to Development for its comnents;

6. ~Re uests the Secretary-General to submi.t his survey and proposalstogether with the comments of the Advisory Committee, to the General Assemblyat its twenty-third session, through the Economic and Social Council.

Note

�! Pursuant to E.C.O.S.O.C- Resolution 1112 XL! and the above resolu-tion, and in connection with General Assembly Resolution 2340 XXII!, ~ost,the following reports have been prepared and issued;

a! "Resources of the Sea Beyond the Continental Shelf," Report of theSecretary-General, Introduction and Sunanary U.N. Doc E/4449!, February 21, 1968;

b! "Resources of the Sea; Part One -- Mineral Resources of the SeaBeyond the Continental Shelf," Report of the Secretary-General U.N. Doc. E/4449/Add. 1!, February 19, 1968; and

c! "Resources of the Sea: Part Two -- Food Resources of the Sea Beyondthe Continental Shelf Excluding Fish," Report of the Secretary-General U.N.Doc. E/4449/Add. 2!, February 7, 1968,

1 ~ [$10.3J The Maltese a enda item.

Re uest for the Inclusion of a Su lementar Item in the A endaof the Tw nt - eco es on

Declaration and Treaty Concerning the Reservation Exclusivelyfor Peaceful Purposes of the Sea-Bed and of the Ocean Floor,underlying the Seas Beyond the Limits of Present NationalJurisdiction, and the Use of their Resources in the Interests

of Manki.nd

Not verb le dated 17 Au ust 1967 from the Permanent Mission of altato the United Nations addressed to the Secretar -General

U .N. D oc A /6695!

The Permanent Mission of Malta to the United Nations presents its compli-ments to the Secretary-General of the United Nations and has the honour topropose under rule 14 of the rules of procedure of the General Assembly thei.nclusion of the following item in the ager@a of the twenty-second session ofthe General Assembly: "Declaration and treaty concerning the reservation ex-clusively for peaceful purposes of the sea-bed and of the ocean floor, underlyingthe seas beyond the limits of present national jurisdiction, and the use oftheir resources in the interests of mankind".

An explanatory memorandum is attached in accordance with rule 20 of therules of procedure.

Memora nd um

l. The sea-bed and the ocean floor are estimated to constitute approximatelyfive-sevenths of the world's area. The sea-bed and ocean floor, underlyingthe seas outside present terri.torial waters andfor the continental shelves,are the only areas of our planet which have not yet been appropriated fornational use, because they have been relatively inaccesssible and their usefor defence purposes or the economic exploitation of their resources was nottechnologically feasible .

2. In view of rapid progress in the development of new techniques by tech-nologically advanced countries, it is feared that the situation will changeand that the sea-bed and the ocean floor, underlying the seas beyond presentnational jurisdiction, will become progressively and competitively subject tonational appropriation and use. This is likely to result in the militari-sation of the accessible ocean floor through the establishment of fixed militaryinstallations and in the exploitation and depletion of resources of immensepotential benefit to the world, for the national advantage of technologicallydeveloped countries.

3. It is, therefore, considered that the time has come to declare the sea-bedand the ocean floor a common heritage of raankind and that isssediate steps shouldbe taken to draft a treaty embodying, inter alia, the following principles:

a! The sea-bed and ocean floor, underlying the seas beyond the limitsof present national jurisdiction, are not subject to national appropriationin any manner whatsoever;

b! The exploration of the sea-bed and of the ocean floor, underlying theseas beyond the limits of present national jurisdiction, shall be undertaken in

462.

a manner consistent with the Principles and Purposes of the Charter of theUnited Nations;

c! The use of the see-bed and of the ocean floor, underlyi.ng the seasbeyond the limits of present national jurisdiction, and their economic ex-ploitation shell be undertaken with the aim of safeguarding the interests ofmankind . The net f inane is 1 bene f its de rived from the use end exp loi.ta t ion ofthe sea-bed and of the ocean floor shall be used primarily to promote thedevelopment of poor countries;

d! The sea-bed and the ocean floor, underlying the seas beyond the limitsof present national jurisdiction, shall be reserved exclusively for peacefulpurposes in perpetuity.

4. It is believed that the proposed treaty should envisage the creation ofan international agency a! to assume jurisdiction, as a trustee for allcountries, over the sea-bed and the ocean floor, under lying the seas beyondthe limits of present national jurisdiction; b! to regulate, supervise andcontrol all activities thereon; and c! to ensure that the activities under-taken conform to the principles and provisions of the proposed treaty.

Notes

�! The item was placed on the agenda of the General Assembly as item 92.The official United States position on the proposal had been presaged byPresident Johnson in his comments at the commissioning of the new oceanographicresearch ship, The Oceanographer, on July 13, 1966:

"[UJnder no circumstances . - must we ever allow the prospects ofrich harvest and mineral wealth to create a new form of colonial compe-tition among the maritime nations- We must be careful to avoid a raceto grab and to hold the la~ds under the high seas. We must ensure thatthe deep sees and the ocean bottoms are, and remain, the legacy of allhuman beings."

Senator Clai.borne Pell has introduced resolutions in the United States Senatesupporting the principles enunciated in the Maltese proposal- See S. Res. 172and 186 90th Cong., 1st Sess.! . Opposition to these principles in the UnitedStates stemmed primarily from industries having an interest in ocean mining notably oil and gas companies! and took the form of advocating maintenanceof the status quo until further information about the deep ocean floor potentialwas developed.

�! In connection with the United States' consideration of this issue,see Interim Re ort and Hearin s on The United Nations and the Issue of DeeOcean Resources, Subcommittee on International Organizations and Moveaentsof the House Committee on Foreign Affairs 90th Cong., 1st Sess., December 7,1967! .

Note by the Secretary-GeneralWith Respect to Agenda Item 92

U, N. Doc - A/C 1/952 Oc tobe r 31, 1967!

1. In connexion with item 92 of the agenda of the twenty-second regular sessionof the General Assembly entitled "Examination of the question of the reservation

46 l

exclusively for peaceful purposes of the sea-bed and the ocean floor, and thesub-soil thereof, underlying the high seas beyond the limits of present nationa >jurisdiction, and the use of their resources in the interests of mankind", theSecretary-General wishes to draw the attention of the General Assembly to theactivities which the Secretariat is already conducting in this and related fieldsunder previous resolutions of its governing bodies.

2. As the General Assembly is well aware, many other organizations, both withinand outside the United Nations system, are engaged in numerous activitiesfalling within the broad field of oceanography. Given the multiplicity andcomplexity of oceanographic vork, the consideration of this item may be facili-tated and even sharpened by distinguishing between a! the question of peacefuluse, b! the scientific activities and c! those of resources exploitation.

3. In the field of marine science and technology, the General Assembly inresolution 2172 XXI! of 8 December 1966, requested the Secretary-General, inco-operation with the specialized agencies concerned, to undertake "a compre-hensive survey of activities in. marine science and technology, including thatrelating to miners I resources development - . [and to] formulate proposals for:

" a! Ensuring the most ef fective arrangements for an expanded programmeof international co-operation to assist in a better understanding of themarine environment through sc ience and in the exploitation and developmentof marine resources . . . fand ]

" b! Initiating and strengthening marine education and trainingprogrammes.

4. In this context, the General Assembly requested the Secretary-General toset up a small group of experts to assiste him in carrying out the above-mentio~ed tasks. The group of experts, composed of representatives of thespecialized agencies concerned and of experts participating in their priiatecapacity, held its first meeting from 15 to 21 June 1967 at the headquarters ofthe World Meteorological Organization in Geneva- At this meeting, the groupagreed on the outline of the report, the modality for its preparation and theways and means of ensuring full co-operation among the interested organizationsin the execution of that project. A second meeting is scheduled for eaily 1968at which time the group will review the survey and discuss the possible proposalswhich will be made. The report will be submitted to the General Assembly at itstwenty-third session through the Economic and Social Council.

5, The Office of Legal Affairs of the United Nations is considering the issueof a further volume in the legislative series, bringing up to date certainearlier volumes on the law of the sea issued in this series. For this purpose,on 16 March 1967, the Secretary-General transmitted a note to Member Governmentsrequesting them to forward as soon as possible the texts of their laws, regu-lations, treaties and other sources of evidence of international law, from1958 onwards, relating to the delimitation and control of the territorial sea, 'of contiguous zones and of the continental shelf, and to the exploitation ofthe resources of the sea, sea-bed and sub-soil outside of internal waters- Ifsufficient material is received in time pursuant to this request, it is hopedthat the new volume in the legislative series will be issued in the course of1.968 .

6 Within the context of scientific activities, the General Assembly will beinterested to learn that the Inter-Governmental Oceanographic Commission IOC!of UNESCO adopted on 27 October 1967 a resolution establishing an IOC WorkingGroup on the Legal Questions related to Scientific Investigations of the Ocean.

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The Working Group has been charged with:

a! Considering legal aspects specifically related to scientificinvestigations of the nature and scientific investigations of resources ofthe ocean, including those related to the usa of various means of collectingocean data, with a view to indicating legal principles which should facili-tate and guide such research, carrying out this work in co-ordination withthe activiti.es of the group of experts established at the sixth meeting ofthe Bureau and the Consultative Council to prepare documentation concerningthe legal aspects of the use of ocean data stations; [and withJ

b! Preparing documentation concerning the effect of the law of the seaon scientific research and proposals relating both to the contribution ofscientific knowledge to the development of the law of the sea, and to theparticipation of the IOC in the deliberations of the United Nations and appro-priate specialized bodies to assist them in taking proper account of scientificinterests and sci.entif ic knowledge i.n the consideration of the further develop-ment of the law of the sea.

7. Host relevant to item 92 is resolution 1112 XL!, adopted by the Economicand Social Council on 7 March 1966. In this relolution, the Counci.l requestedthe Secre tary-General:

" a! To make a survey of the present state of knowledge of these re-sources of the sea mineral and food excluding fi.shJ, beyond thecontinental shelf, snd of the techniques for exploiting these resources.

" b! As part of that survey, to attempt to identify those resources nowconsidered to be capable of economic exploitation, especially for thebenefit of the developing countries;

" c! To identify any gapa in available knowledge which merit earlyattention by virtue of their importance to the developnent of oceanresources, and of the practicality of their early exploitation;

" d! To report on the progress of the survey at an early session of theCounc il ~"

8. It must be emphasized that the Council a! specifically referred to theneed for ensuring that the -,exploitation of the resources of the deep seabenefit the developing countries and b! requested that existing gapa whichmight delay progress in that field should be identified.

9. The Secretary-General's preliminary work on the tasks entrusted tc him inthe above-mentioned resolution of the Council has led him to the conclusionthat a! the legal status of the deep sea resources and b! ways and means ofensuring that the exploitation of these resources benefit the developingcountries constitute two major gapa; the Secretary-General will thereforestudy them wi.thin the context of Economic and Social Council resolution 1112 XL!. As pertains to item b!, the Secretary-Gener'al will examine various al-ternatives, including the advisability and feasibility of entrusting the deepsea resources to an international body. The General Assembly may considerit advantageous for the Secretary-General to prepare a more comprehensivereport which would include a study of the legal framework which might be es-tablished for the deep sea resources, the administrative machinery which maybe necessary for effective management and control, the possible system oflicensing and various possible arrangements for redistributing and/or utili.zi.ngthe fu~ds which would be derived therefrom, including those earmarked for the

benefit of the developing countries. In the opinion of the Secretary-General,such a comprehensive study may prove most useful to the General Assembly inits future consideration of this subject.

Statement by Ambassador Arthur J. Goldberg,United States Representative to the United Nations,

in Committee I, on the Question of the Reservati.on Exclusivelyfor PkaKeful Purposes of the Sea-bed and the Ocean Floor

November 8, 1967!

With its consideration of the Naltese item concerning the Seabeds andOcean Floor, the General Assembly has responded to the increasing awarenessthat one of man's oldest environments, the ocean, is also his newest and per-haps most valuable frontier. I would like to express my Delegation's gratitudeto Ambassador Pardo for bringing this important question to the attention ofthe General Assembly.

Ny Delegation believes that mankind's expanding activities in the oceandepths call for new efforts for international cooperation, both in promotingthe exploration and use of the deep ocean and i.ts floor, and in the developmentof the general principles which might usefully guide man's activities in thisnew realm.

This scans, in our view, that the deep ocean floor should not be a stagefor competing claims of national sovereignty Whatever legal regime for theuse of the deep ocean floor may eventually be agreed upon, it should ensurethat the deep ocean floor will be open to exploration and use by all states,without discrimination,

United Nations interest in the problems of the seas is not new; we arenot writing on a clean slate in considering how the General Assembly canbest deal with the question which has been brought before us. In the f if ties,after extended work by the United Nations International Law Conrnission, anumber of important Law of the Sea Conventions were adopted at a conferenceheld in Geneva in 1958. One of these, the Convention on the ContinentalShelf, is of particular interest to us in considering legal arrangements whichmight apply to the deep ocean floor. Under these conventions, the GeneralAssembly was assigned the responsibility of deciding what steps should betaken with respect to requests for revision of the conventions.

A number of bodies in the United Nations have also given careful at tentionto other marine problems. Through the Intergovernmental Oceanographic Connnission,UNESCO has actively encouraged scientific activities in the field of ocean-ography; the Food and Agriculture Organiration has been concerned with thedevelopment and conservation of fisheries; the World Meteorological Organizationis studying the influence of the oceans on weather; and the IntergovernmentalMaritime Consultative Organization has done invaluable work in safety at sea.

The General Assembly last December endorsed a study of the present stateof knowledge of mari.ne resources requested by the Economic and Social Council,and asked the Secretary General to undertake, in addition, a survey of activitiesin marine science and technology. The Secretary General was also directed, aspar't of this study, to f ormulate proposals for expanding international cooperationand for improved marine education and training. In recognition of the complexityof the abject, the Sxxeuey GEeral ~ ghat mal 1968 bo ~ Ihe remits of Rs shdy ~ strxnrnendaticns.

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Through its past activities, the United Nations has already built a solidrecord of accomplishment in dealing with questions concerning the oceans. Ithas been responsive to the needs of nations and has dealt effectively withproblems as they arose.

The isrsediate question before the Assembly today is this: How can theGeneral Assembly, in the light of the continuing advance of marine technology,best act to encourage the exploration and use of the ocean and its floor forthe benefit of a 1 1 mankind'?

'1'his is a very complex matter, and any decisions we make must recognizethe full complexity of the problems involved. A hasty approach would be im-prudent. But all deliberate speed and not indefinite delay is what is called for,

What this Assembly needs is an instrument which would enable it to deal withboth the scientific and the legal questions involved. Recalling the work andaccomplishments of the Outer Space Committee, my Delegation proposes that theGeneral Assembly take action this session to establish a Committee on theOceans. This Committee would:

act as a servant of the General Assembly in consideri.ngall proposals placed before the Assembly on marine quesions,and make recommendations on such proposals to the Assemblyfor action;

assist the General Assembly in promoting long-term inter-national cooperatl.on in marine science; and,

assist the General Assembly in considering questions of law,including such matters as rights of use and exploration,arms control, and problems of pollution.

Such a cosssittee would work with existing United Nations agencies and theENDC, as appropriate, drawing upon their experience and their resources. TheGeneral Assembly should ask the Committee, as part of its initial work program,to make recommendations for action by the 23rd and subsequent General Assembliest 0 s t imu la te and support i.nter net iona 1 cooperation and exchange in the explore-t ion of the ocean f loor.

Any extensive program for international cooperation in the exploration ofthe ocean floor would necessarily be s long-teem effort and would require thecareful harmonization of national programs and of the efforts of the specializedagencies. Under the Marine Resources Act of 1966, the United States has alreadybegun to establi.sh a coordinated long-range program in marine science, and westand ready to do our share in developing a comprehensive program of internationalcooperation.

As part of its first report, the Cossnittee might provide the Assembly withits views on the recommendations developed by the Secretary General in hisstudy requested by last~ear's General Assembly, of activities in marine scienceand technology.

Finally, Hr. Chairman, my Delegation believes that the General Assembly,through the new Committee on Oceans, should begin isssediately to developgeneral standards and principles to guide states and their~tioakls in theexploration and use of the deep ocean floor. All of our knowledge about thedeep ocean floor and all of our technological skill in exploiting its resourcescould prove of little value, if man's law-making does not keep pace,

467.

Acting as the servant of the Assembly, the new Committee could study howstates might best conduct their activities on the deep ocean floor so as tomaintain international peace and security and promote internationa l cooperat ion,scientific knowledge, and economic development. It could also consider whatprinciples might be agreed upon to help conserve the living resources of theseas, to prevent pollution, and to avoid disturbance of the biological, chemi-cal and physical balances of the seas.

I do not wish to imply that the task of developing legal principles forthe deep ocean floor will be simple. The question of definition of the deepocean floor will have to be considered, The work will have to take into accountexisting treaties, including the Convention on the Continental Shelf. Thesetreaties confer rights which are valued and retained by the signatories.

Questions of arms control must also be an essential part of our considera-tion of the oceans. Complex as these questions are, they must be taken intoconsideratio~ if we are to develop meaningful principles to govern future statebehavior, The United States Delegation believes that we must seek effectivearms control measures as part of the evolving law of the deep ocean floor andthat their development should also come under the mandate of the Oceans Committee

While my Delegation believes that it is too early to take any final deci-sions on proposals for a comprehensive legal regime for the deep ocean floor,such as suggested by Ambassador Pardo, we would participate energeti.cally inthe studies which will be needed before such decisions can be made.

Hr Chairman, the program I have suggested would represent an ambitiousundertaking for the Assembly. The problems ahead are vast. Yet the opportu-nities are equally vast.

A Committee on Oceans, building on the present efforts of member statesand the United Nations, could serve as the focal point within the GeneralAssembly for study and development of the next steps which the nations must taketogether in this field. In creating this Committee, and directing it towardthe tasks ahead, we would take effective action to enhance our knowledge of theocean and its floor -- and to use it for the long-term benefit of the humanfamily.

2 . {5 10.4J The Ad Hoc Committee .

United Nations General Assembl Resolution 2340 XXIIDec embe r 18, 196 7

Th en ral Assembl

Navin considered the item entitled "Examination of the question of theresetvation exfluaivhty for peaceful pruposes of the sea-bed and the ocean floor,and the subsoi 1 thereof, underlying the high seas beyond the limits of presentnational jurisdiction, and the use of their resources in the interests of man-k ind",

~Notln that developing technology is maktng the sea-bed and the ocean floor,and the subsoil thereof, accessible and exploitable for scientific, economic,military and other purposes,

i'loi>r ~ which constitute the major portion of the area of this planet,

Reco nizin further that the exploration and use of the sea-bed and theocean t loor, and the subsoi 1 thereof, as contemplated i.n the title of the item,should be conducted in accordance with the principles and purposes of the Char-ter oi the United Nations, l.n the interst of maintaining internati.onal peaceand securi ty and for the benefi t of all mankind,

of the provisions and practice of the law of the sea relating tot his question,

Mind ful also of the impor tance of preserving the sea-bed and the oceanf lf>or, and the subsoi l the r'eof, as contemplated in the ti tie of the item,frf>m actions and uses which might be detrimental to the common interests ofIlla nk i rid,

1'l~g's rf~n to foster greater international co-operation and co-ordinationfi t lie l or t lier peace fu1 exploration and use of the sea-bed and the ocean floor,

ar>d [hg silbsoil thereof, as contemplated in the title of the item,~gee flin the past and continuing val able work on questtons relating to

i i>i f tttdg t tg r carried out by the competent organs of the United Nations thons, esp< c iu 1 ized agencies ~ the International Atomic Energy Agency and other inter-

gi>VC rr>mg n t a i Organiza t irma,

Rccullili further that surveys are being prepared by the Secretary Generalin response tf> General Assembly resolution 2172 XXI! of 6 December 1966 andEconomic and Social Council resolution lll2 XL! of 7 March 1966,

decides to establish an Ad Hoc Coemtttee to study the peaceful usesf t I a bd and t-he ocean floor beyond the limits of national iurtsdtction,c<>mpf>si'd f>f Argentina, Australia, Austt ia, Belgium Br'azil B 1 i 0 ds p ' ~ u gar a, Cana a,ey on, C i e, Czechoslovakia, Ecuador, El Salvador, France, Iceland, India,I ta ly, Japan, Kenya, l.ibe r la, Libya, Malta, Norway, Pakis tan Peru, Poland,Romania, senegal, Somalia, Thailand, the Union of Soviet Socialist Republics,the Uni ted Arab Republic, the Uni.ted Kingdom of Great Britain and NorthernIre land, the United Republic of Tanzania, the United States of America andYugos lavia, to study the scope and various aspects of this item'

s

469.

2. ~Re ueete the Ad Roc Committee, in c o-operation with the Secretary-General, to prepare, for consideration by the General Assembly at its twenty-third session, a study which would include:

a! A survey of the past and present activities of the United Nations, thespecialized agencies, the International Atomi.c Energy Agency and other inter-governmental bodies with regard to the sea-bed and the ocean floor, and ofexisting internati.onal agreements concerning these areas;

b! An account of the scientific, technical, economic, legal and otheraspects of this item;

c! An indication regarding practical means to promote international co-operation in the exploration, conservation and use of the sea-bed and theocea~ floor, and the subsoil thereof, as contemplated in the title of the item,and of their resources, having regard to the views expressed and the suggestionsput forward by Member States during the consideration of this item at the twenty-second session of the General Assembly;

3. ~Re ueete the Secretary-General:

a! To transmit the text of the present resolution to the Governments ofall Member States in order to seek their views on the subject;

b! To transmit to the Ad Hoc Connnittee the records of the First Committeerelating to the discussion of this item

c! To render all appropriate assistance to the Ad Hoc Committee, includingthe eubmissi5n thereto of the results of the studies being undertaken in pur-suance of General Assembly resolution 2172 KXI! and Economic and Social Councilresolution 1112 XL!, and such documentation pertinent to this item as may beprovided by the United Nations Educational, Scientific and Cultural Organizationand i.ts Inter-governmental Oceanographic Commission, the Inter-GovernmentalMaritime Consultative Organization, the Food and Agriculture Organization of theUnited Nations, the World Meterological Organization, the World Health Organi-zation, the International Atomic Energy Agency and other intergovernmentalbod ies;

4. Invites the specialized agencies, the International Atomic EnergyAgency and other intergovernmental bodies to co-operate fully with the Ad HocCommittee in the implementation of the present resolution.

Note

�! The Ad Hoc Committee held three sessions United Nations Headquarters,March 18-27, 1968, and June 17-July 9, 1968; Rio de Janeiro, August 19-3G, 1968! .Two working, groups were established, one concerned with economic and technicalaspects of the item, the other concerned with the legal aspects. The Chairmanof the Ad Hoc .Committee was Mr Hamilton Shirley Amerasinghe of Ceylon; thechairman of the Economic and Technical Working Croup was Mr ~ Roger Denorme ofBelgium; and the chairma~ of the Legal Working Group was Mr. Leopoldo Benitesof Ecuador. The "Report of the Ad Hoc Committee to Study the peaceful Usesof the Sea-Bed and the Ocean Floor Beyond the Limits of National Jurisdiction,"U. N. Doc. A/7230, was adopted by the Committee on August 30, 1968, and wassubsequently delivered to the twenty-third session of the General Assembly.At the time of preparation of these materials, the First Committee of the GeneralAssembly was continuing its consideration of that Report.

47O.

Report of the Ad Hoc Cosrnittee to Study the PeacefulUses of the Sea-bed and the Ocean Floor Beyond the Limits

of National JurisdictionU. N. Doc A/7230, pares. 85-88

August 30, 1968!

85. Mithin the limits of the time available, the Ad Hoc Conxsit tee studied incomprehensive manner the various aspects of the item and identified the mainproblems. The Q goC COTTsnittee recognizee the need far further Study and haamade suggestions for this purpose.

BA. As uas Implied In the terms of resolution 2340 XXII! the A~BH c Cmnmltteerecognized the existence of an area of the sea-bed and the ocean floor under-lying the high seas beyond the limits of national jurisdiction.

87. The members of the Ad Hoc Conselttee felt that certain constderatlons re-latlnB to the exploration, exploltetlon and use of the sea-bed and the ocean floor«xl hg ~Oil thereof, utrterlyitg the hgtatas beyond he limits of nstiaal jurhdiCicn appearedto commend themselves with varying degrees of acceptance, These considerationscould be brought to the attention of the General Assembly as an indication of prac-tical means on which a measure of agreement existed within tha A~d~ Ctamittee,

88. In the course of the final session at Rio de Janeiro, consultations tookplace between the various groups in an effort to find an acceptable formulationwhiCh wOuld cOTTmTand unanimOua SuPPOrt. The effOrta Pereiated until the end Ofthe session and considerable progress was made, but final agreement could not bereached in terre- The following sets of proposals contain an indication of thesupport that the various ideas received:

a! Draft declaration of general principles proposed for submission to theGe ne rs 1 ha semb ly;

b! Draft statement of agreed principles proposed for submission to theGeneral Assembly.

The draf t dec larat ion of general princi plea referred to above as a! com-prised the following:

�! The sea-bed and ocean floor, and the subsoil thereof, as referred to inthe title of the i.tern, are the common heri.tage of mankind and no State may claimor exercise sovereignty over any part of the area mentioned in resolution 2340 XXII!;

�! The exploration, use and exploitation af the sea-bed and ocean floor,and the subsoil thereof, as referred to i.n the title of the item, shall becarried on exclusively for peaceful purposes;

�! The exploration, use and exploitation of this area, and the subsoilthereof, as referred to in the title of the item, shall be carried out for thebenefit and in the interest of mankind;

�! The exploration and use of the sea-bed and ocean floor and the subsoilthereof, as referred to in the title of the item, and the exploitation of theirresources shall be carried on in accordance with the principles and purposes ofthe Charter of the United Nations and an i.nternational regime to be established

with the purpose of contributing to the maintenance of international peace andsecurity, the respect for the territorial integrity of States snd the interestsof the coastal States, and the promotion of economic development, particularlythat of the developing countries, whether coastal or land-locked;

�! The international regime to be established shall also consider the wayfor the most appropriate and equitable application of benefi.ts obtained from theexploration, use and exploitation of the sea-bed and ocean floor and the subsoilthereof, as referred to in the title of the item, through a suitable internationalmachinery, f or the economic, socia 1, ac i.enti f ic and techno logical progress ofthe developing countries,'

�! All activities in the sea-bed snd ocean floor and the subsoil thereof,as referr'ed to in the title of the item, shall conform to the following guide-lines, aimed at protecti.ng the rightful interests of other States:

a! No impediment shall be created to navigation and fishing nor shall therebe undue interference with the laying and the maintenance of submarinecables and pipelines;

b! Coastal States closest to the area in which any activities occur shall beconsulted lest their rightful interests be harmed;

c! Any such activity must take into account the economic interests of thedeveloping countries so as not to be detrimental in particular, to theactivities undertaken within the national jurisdiction of those countries;

d! Appropriate safety measures shall be adopted in all activities of explor-ation, use and exploitation of the area and international co-operation forassistance in case of mishap shall be facilitated;

e! Pollution of the waters of the marine environment, specially radio-activecontamination, shall be avoided by means of international co-operatio~;

f! No damage shall be caused to animal and plant life in the marine environment;

g! Damages caused by any such activities entail liability.

�! The sea-bed and ocean floor, and the subsoil thereof, as referred to inthe title of the item, shall be open to scientific investigation, without dis-crimination, and States shall foster international co-operation in thisinvestigation so as to enable all States to have access to it, disseminate itsresults and provide technical assistance to the developing countries;

8! The United Nations, in co-operation with the specialized agencies andXAEA, shall take adequate measures to ensure the observance of these generalprinciples and guidelines and the implementation of the objectives set forthin this dec lars t ion wi th the aim of promoting interna t iona 1 co-opera ti on in thisfield.

The draft statement of agreed principles referred to above as b! comprisedthe following;

�! There is an area of the sea-bed and ocean floor and the subsoil thereof,underlying the high seas, which lies beyond the limits of national jurisdiction hereinafter described as "this area"!;

�! Taking into account relevant dispositions of international law, thereshould be agreed a precise boundary for this area;

472.

�! There should be agreed, as soon as practicable, an internat iona 1regime governing the exploitation of resources of this area;

�! No State may c.laim or exercise sovereign rights over any part ofthis area, and no part of it is subject to national appropriation by claim ofsovereignty, by use or occupation, or by any other means;

�! Exploration and use of this area shall be carried on for the benefitand in the interests of all mandkind, tskf.ng into account the special needs ofthe developing countries;

�! This area shall be reserved exclusively for peaceful purposes;

�! Activities in this area shall be conducted in accordance with inter-national law, including the Charter of the United Nations, Activities in thisarea shall not infringe upon the freedoms of the high seas.

The Saudi Arabia Kingdom owns all the hydrocarbon materials andminerals existing in the strata of the seabed and this is inrespect to the zone extending in the Red Sea bed ad]acent to theSaudi continental shelf, which materials and minerals are herein-af ter ref et red to as "resources",

Section l.

These "resources" are deemed to be a pert of the Saudi Terr'itoryand to be treated es the property of the state according to thefirst section of mining regulations in respect to which RoyalDecree Ho, 90 dat:ed ll/9/82 has been issued.

Section 2.

The Government of the Saudi Arabian Kingdom alone shall have theindividual right to explore and mine these "resources" snd toexp loi t them and nobody, public or private, national or foreign,can exercise any form of this right except with the exptess permitfrom the competent Saudi Authorities and in accordance with theregulations applicable in the Saudi Arabia Kingdom.

Sec ti on 3.

And the Government of the Saudi Arabia Ki.ngdom may exercise itsrights in exploring or mining these "resources" and exploitingthem by way of sharing with the neighbouring governments whichhave simi lar rights recognised by the government of the SaudiArabia Kingdom in common zones,

These "resources" shall not be owned by possession or prescriptionand the rules of limitation by lapse of tism shall not apply to theownership of the state thereto.

Section 4.

Section 5. The Hinis try of Petroleum and Ninera 1 Resources shall be thecompe tent authority to supervise these "resources" and to applythe Saudi rules and regulations relating thereto.

Ed . Note.' National A ro riation. Despite general indications of supportfor the de-nationalization of ihe deep ocean floor it appears that sose nationsare intent on claiming the resources of that area for their exclusive exploita-t.ion. For example, the Kingdom of Saudi Arabia recently issued Royal DecreeNo. 8-27 which provides:

~/3

The application of these regulationa shall not affect thedescription of the High seas or obstruct navigation thereinwithin the limits provided for by the established rules ofpublic International law,

C. �10,5] Possible re imes for the dee ocean floor,

It should be observed that there are two basic problems with respect tothe deep ocean floor, viz., I! the exploitation of its resources, and �!its use for military pruposes. This section is principally concerned withthe former, although any regime adopted must also consider the latter problem.

Various proposals have been suggested for establishing a legal regime forexploiting the resources of the deep ocean floor. They may be generallycharacterized as follows:

l. United Nations ownershi . Under this theory, title to the deep oceanfloor or at least the natural resources therof! would be vested in the UnitedNations. An agency of that organization either existing or newly created!would then issue permits, licenses, leases and the like in order to promoteexploration for and exploitati.on of the resources of the area. Royalty payableto the United Nations could be utilized in the general fund, or distributed todeveloping aatlons through the medium of the International Bank for Reconstruc-tion and Deve lopment world Bank! or similar agency. Another variati.on of thisproposal would be to permit the United Nations to develop the resources itself,rather than utilizing contractors or lessees.

2. International re ime. Under this theory, the deep ocean floor, orits resources, would be declared tes consaunis thus avoiding the necessityof vesting title in either the United Nations or the adjacent coastal states!and ~ould be administered by a specialized agency of the United Nations,either an existing one such as the World Bank, or a newly created entity, orby a completely independent international agency. Roya!ty would be payable tothe administering authority and would be uti Lixed in a manner to be agreed upon.Administration would take the form of issuing permits, licenses and leases, andin regulating operations conducted pursuant thereto. Advocates of this proposalge ne ra 1 1 y e nvi sage establishing the reg ime through General Assembly ac t i on,although others soggest uti.lixing a negotiated multilateral treaty. A variationwould establish such a regime on a regional >asia ~

3. Fla nation a roach. Under this theory, entrepreneurs would be freeto "stake claims" in any portion of the deep ocean floor, and would be subjectonly to the authority of the state whose nationality they possess or whoseflag thel r operating vessels fly- The regime would be that provided by thelaws and regulations of the flag state. One variation would still requirethe payment of royalty to an international body, while another would requirethat all such "claims" be registered wi.th an international agency.

5. Mai.t and see school. The proponents of this theory suggest that thereis insuf f icient data avai lable at present upon which to base a viable regimefor the deep ocean floor. Variations suggest that I! there is no law prohibi-ting the development of deep ocean floor resources and �! we should simplypermit a regime to evolve through decisions of necessity.

4.extendocean f

ac comp 1applicaConventbe thatpayme nt

National lake a roach. Under this theory, each coastal state wouldi.ts continental shelf gurisd ic t ion seaward until all areas of the deeploor were subject to national jurisdic tion. The di.vision might beished by multilateral treaty, by a series of bilateral treaties or bytion of the principle of equidistance set forth in Article 6 of thei.nn on the Continental Shelf ~ The applicable legal regime would thenof the state having jurisdiction. A variation would still requireuf a roya 1ty to an international agency.

475.

Although most advocates of this position have a favorite among the other alter-natives, they would prefer to let development proceed on some indefinite basis-

Ed. Note: Regardless of the regime adopted, certain criteria must be metif development of these resources is to proceed. Christy suggests three suchcriteria in the following excerpt.

"Alternative Regimes for Marine ResourcesUnderlying the High Seas", Francis T. Christy

1 The Natural Resour.ces Lawyer No. 2! 63, 66 �96S!

Zn considering the alternative regimes, the basic objective is to arrive atthat regime that will be viable over the long-run and that will encourage theeconomically efficient., peaceful, and orderly exploitation of the mi.nerals of thesea floor. Its success will be measured against three criteria. First, it mustpermit economically efficient operations. Secondly, it must be acceptablea sufficient number of nations both in the lang and the short run. And third,it must be feasible.

The prime requirement for an economically efficient operation is the assuranceof exclusive rights for a sufficiently l.arge area for a sufficient length of time.These rights should be adequate to permit both exploration and exploitation, asthey do for the oil leases on the U.S. continental shelf. Economic efficiencyshould be considered not only in terms of the entrepreneur, but also in terms ofsoc iety. Social costs, such as those for protecting the entrepeneur 's exclus iverights, of ensuring an efficient allocatian of capital and labor, and, possibly,of preventing external effects such as pollution! must also be considered in thenreasurement of benefits and costs by which efficiency is gauged. Eff icientrnanagernent programs for the minerals of the sea floor may require some payment tothe public, whether the public be of the flag nati.on or of the world community.

The second criterion is that of acceptability. The implementation and via-bil.ity of any regime will depend upon how it is viewed by those nations that havean influence on the decisions. This is essentially the questio~ of how the re-gime affects the distribution of the wealth of the seas ' bottom -- or, more accu-rately, how each participant perceives his own net gains economic and other!in relat.ionship to the net gains of all other participants.

Assuming that the two criteria mentioned above can be met, the third testof a legal regime is that of feasibility. To meet this test, it may be necessaryto develop new institutions -- institutions for administration, enforcement., andadjudication. The necessity for ne w institutions should not be considered animpediment to the establishment of regime. Indeed, it is in keeping that thesetotally new resources and totally new problems should require new institutions.

Note

�! For an expanded discussion of these criteria, see Christy> "A SocialScientist Writes on Economic Criteria for Rules Governing Exploitation ofDeep Sea Minerals," 2 The Tnt'1. Lawyer 224, 229-232 �968!.

�! Applying these criteria, anal.yze each of the suggested alternativeregimes set forth above. The follawing bibliography may be helpful in locatingand identifying the relative merits and demerits of each of the various pos i-t iona.

476.

1 . Uni ted Net iona Owners hi

Pro; Creamer, "Title to the Deep Seabed: Prospects for the Future,"9 Harv. Int 'I L. J. 205 �968!; Grunawalt, "The Acquisition of the Resourcesof the Bottom of the Sea -- A New Frontier of International Law," 34 Nil.L, Rev. 101, 132 �966! [recommending a United Nations conference to developa convention on the resources of the deep ocean floor and that considerationbe given at such conference to "placing the resources of the deep ocean floorunder the exclusive control and jurisdiction of the United Natf.ons. ~" j;Seventeenth Annual Re ort of the Commission to 6tud tile Or anization ofPeace, 39 �967! [recotnmending that the General Assembly declare the area notsubject to appropriation by any state; that the United Nations take title tothe area; that the seaward limit of the continental shelf be fixed in an un-ambiguoiis manner; and that the area not be used for the ins ta liat ion oroperation of weapons or ior furthering research on potential weapons or theirdevelopment j; Eiche lberger, "A Case for the Administration of Marine ResourcesUnderlying the High Seas by the United Nations," I Nat. Res. Lawyer No. 2! 85,90-94 [" T[he United Nations should create the machinery snd develop whatevercompetence is req<iired to establfsh the international principles and the rulesunde r wh fch tfie exp loi tat ion of t he seabed shoiild take place,..." ] .

Con: Stang, "The Wells Beneath the Sea," 94 U.S. Nav. Inst, Proc. No. 3!33, 38-43 {1968!; Burke,"A Negative View of a Proposal for United Nations Owner-ship of Ocean Mineral Resources," 1 Nat. Res. Lawyer No. 2! 42 �968!; H.J.R.816 90tti Cong., 1st Sess., 1967! [providing that any action at this time tovest cont rol of deep ocean resources in an international body wo~ld be prematureand ill-advised]; see also the articles cited below in opposition to an inter-national regime which are a fortiori, opposed to United Nations ownership,

Genera 1: For a disucss ion of the iss<ies involved in United Nations owner-sf<ip, see Luce ~ "The Development of Ocean Hinerlas and the Law of the Sea,"I Nat . Res�. Iatwyer No. 3! 29 �968! .

International Re ime.

Pru; B<>rgese, "Ttie Ocean Regime," an Occasional Paper of the Center fortlii Stiidy <if Democratic Institutions �968! [proposing a draft and recommendingn<l<iftt i <<n iif a treaty governing the adminiatration Of deep oCean flOOr resOurcea;n l sti rg et <r««< nd i <ig the convocat ion of an internat iona 1 conference on the topic

f<h i<ii t iated by pri.vate organiZations; see also BOrgese, "The Republic Oft lit D« f> Seas," 1 Tfie Center Magazine No. 4! 18 May, 1968! !; Browning,"Exp i<<i tat i<in uf Submarine Mineral Resources Beyond the Continental Shelf,"7< Tex. trit '1 L. F<irum l, 20 et ~se . �968! indicating that althoogh "[t fheore-t ica l 1 y, t f<e best sys tem would be some type of international authority thatw<i<i ld grant texc lusive rights through lease or concession in certain areas iupract ic'i l problems may mili.tate against such a solutionj; Christy, "AlternativeR< gine s t ur Marine Resources Underlying the High Seas," I Na t . Res. Lawyer N<i. 2! f33, 74-77 l968!; Eichelberger, "A Case for the Administration ofHnriiie Resoi<rces Underlying the High Seas by the United Nations," 1 Nat. Res.Lawyer No. 2! 85, 87-90 �968!; Chir sty snd Eiche lberger, "Comments on Inter-<national Control of the Sea's Resources," in Alexander, ed., The Law of theSea: Of fsfiore Boundaries and Zones �967! at 299 [Chiisty answers the follow-ing cr i t ic isms iit prriposals for an international regime: " a! that there isno need for international authority; b! that international authority would bedet rimenta 1 to the interests of the United States , 'and c! that there is nopractical means for achieving international authority." J; Goldie, "The Contents<if Davy J on<as s Locker -- A Proposed Regime for the Seabed and Subsoil " 22R tgers h. Rev. 1, 31 ~et se . <19<t7! <proposing "a regime governing the assurances

477.

of titles created under the municipal law of ea ch state by the recognitionof these titles in the courts of a ll. the othe rs through an interna tiona lagreement, and through establishing, under public international treaty law,conf lie t of laws standards and obligations of recogni.tion" the system

fl would also utilize "zones of special interest"!; see also Goldie,marine Zones of Special Jurisdicti.on' Under the High Seas -- Some MilitaryAspects," in Alexander, ed, he Law of the a ' Th uture of the Sea 'sResources �968! a t 100; and Goldie, et a l., "A Symposi.um on the GenevaConventions and the Need for Future Modificat iona," in Alexander, ed., TheLaw of the Sea: Of fshore Boundaries and Zones �967! at 265, 273j; Krueger,"The Convention on the Continental Shelf and the Need for its Revision andSome Comments Regarding the Regime for the Lands Beyond," 1 Nat Res. Lawyer Wo. 3! 1, 8 ~et se .; Christy, "A Social Scientist Writes o Econo ic Criteriafor Rules Governing Exploitation of Deep Sea Minerals," 2 Int'1 Lawyer 224�968!; "Address by Ambassador Arvid Pardo," 62 Am. Soc, Int'1 L. Proc. 216�968! . On the possibility of utilizing regional arrangements, see Browning,"Exploitation of Submarine Mineral Resources Beyond the Continental Shelf,"

Tex, Int'1 L. Forum 1, 25 �968! and Johnson, "Law, Technology and the Sea,"55 Cal. L, Rev. 449, 470 �967! . Three d raft tr'eaties have been proposed,one by Borgese, ~su ra, the others by Senator Claiborne Pell ["Tree ty on Prin-ciples Governing the Activities of States in the Exploration and Exploitationof Ocean Space," S, Res. 263; see "Remarks of the Honorable Claiborne Pell," ~62 Am. Soc. Int'1 L. Proc, 236 �968!! and the United Nations Committee of theWorld Peace Through Law Center [" Treaty Governing the Exploration and Use ofthe Ocean Bed ."]. Kutner, "Habeas Marinas: Due Process of Inner Space -- AProposal," 22 Mta. L. Rev. 629, 64, 667 ~et se . �968! .

Con: Ely, "A Case for the Administration of Mineral Resources Underlyingthe High Seas by National Interests," 1 Nat. Res. Lawyer No. 2! 78 �968!;Ely, "The Fashioning of a Regime to Govern the Deve lopment of Undersea MineralResources," a paper presented at the Workshop on Law a' Related to Ocean Develop-ment Problems, under the j oint sponsorship of the Marine Technology Society andthe George Washington University National Law Center, Apri.l 20, 1968; see alsogenera!.ly those authorities favoring eithe r the national lake or flag nationapproach.

General: For a discussion ci is. ues 1nvolved see Burke, "Legal Aspectsof Ocean Exploration -- Status and O ltlook," 2 M.T.S. Proc. 1 �966! and thevario, statements collected in 62 A . Soc. lnt.'1 L. Proc. 216 ~et se . �968!

3. Fla Nation A roach.

Pro: Ely, "American Policy Options in the Development of Undersea MineralResources," 2 Int'1 Lawyer 215, 222-223 �968!; Ely, "A Case for the Administra-tion of Mineral Resources tJnde r 1> i ilg the High Seas by National Interests," INat. Res. Lawyer {No. 2! 78 �96!8!; Browning, "Exploitation of Submarine Minera 1Resources Beyond the Continental Shelf," 4 Tcx, Int'I L. Forum 1, 26 �968!I observing that "[ t j he ore t ical ly, the bes t sys tem wou ld be some type of inter-national authority that would grant exclusive rights through lease or concessionin certain areas" but that "[tjhe hest practical system would possibly be torely upon the 'exploitability' test of the Convention on the Continental She lfinsofar as is reasonably possible, and to follow the national flag approach inareas clearly beyond any continental shelf," J; Ely, "The Fashioning of a Regime

the mmi te on Dee Sea Mineral Resources, American Branch of the Inter-na t i ona 1 Law Assoc i ation Ju ly 19, 1968! [ sugge s ting, however, an i nte rna t iona lregistry system and payment.s to an interns ti ona 1 agency]; Alexander, "NationalJurisdiction and the Use of the Sea," 8 Nat. Res. J. 373, 394 �968!; Ely,

478.

"The Laws Governing Exploi.tation of the Minerals Beneath the Sea," 2 M.T.S.Proc. 373 �966!; Wi ikey, "The Deep Ocean: Its Potential Mineral Resources andProblems," 3 Int'l. Lawyer 31 �968!.

Con: Christy, "Alternative Regimes for Marine Resources Underlying the HighSees, " 1 Nat, Res . Lawyer No. 2! 63, 72-74 �968!; Goldie, "The Contents ofDavy Jones 's Locker -- A Proposed Regime for the Seabed and Subsoil," 22 RutgersL. Rev. 1, 28-31 �967!; Christy, "A Social Scientists Writes on Economic Cri-teria for Rules Governing Exploitation of Deep Sea Minerals," 2 Int'1. Lawyer224, 235-239 �968! .

4. National Lake A roach.

Pro: Bernfeld, "Developing the Resources of the Sea -- Security of Invest-ment," 2 Int '1, Lawyer 67 �967! and 1 Nat. Res. Lawyer No. 1! 82 �968!;Bernfeld, "Exploitation of Minerals in and Under' the Seas," Southwestern LegalFoundation, 1 67 S osium on Privat v stars Abroad -- Problems and Solu-tions 337 �967!; see also the map appended to Alexander, ed., The Law of theSea: The Futur of the Sea's Resources �968! which indicates how the deep oceanfloor would be apportioned among coastal states on the basis of an equidistancetheory such as that contained in Article 6 of the Convention on the ContinentalShelf.

Con: Christy, "Alternative Regimes for Marine Resources Underlying the HighSeas, " 1 Nat, Res. Lawyer No. 2! 63, 70-72 �968!; Goldie, "The Contents ofDavy Jones 's Locker -- A Proposed Regime for the Seabed and Subsoil," 22 RutgersL. Rev. 1, 19-21, 27-28 �967!; Browning, "Exploitation of Submarine MineralResources Beyond the Continental Shelf," 4 Tex, lnt'1. L. Forum 1, 17-20 �968!;Young, "The Legal Regime of the Deep-Sea Floor," 62 Am. J. Int'1, L, 641, 648�968!; Christy, "A Social Scientist Writes on Economic Criteria for RulesGoverni.ng Exploitation of Deep Sea Minerals," 2 Int '1. Lawyer 224, 232-235 �968!;Pardo, "Who Will Control the Seabed?" 47 Faeign Affairs 123, 134-135 �968!.

Wait and See School.

Pro: Wi ikey, "The Deep Ocean: Its Potential Mineral Resources and Problems,"lnt '1. Lawyer 31 �968! [ indicating, however, the necessity of a theory of

non-appropriation by states i,n the interimj; Ely, "The Fashioning of a Regimeto Govern the Development of Undersea Mineral Resrouces," ~su ra [indicating pre-ference for the "flag-nation" approach if some regime is to be establish ed];Young, "Thc Legal Regi.mc of the Deep-Sea Floor," 62 Am. J. Int '1. L. 641 �968![with an ultimate preference for some form of international regime!; Ely,"American policy Options in the Development of Undersea Mineral Resources2 Int 1. Lawyer 215, 217 �968! [this wait and see position may, however, havebeen modified by the proceedings in the United Nat'iona following adoption ofthe Maltese agenda item]; Ely, "A Case for the Admi,nistration of Mineral Re-sources Underlying the High Seas by National Interests," 1 Nat. Res. Lawyer No. 2! 78; Oda, "A Reconsideration of the Continental Shelf Doctrine," 32Tu 1. L. Rev. 21, 33-34 �957! .

Con: Christy, "Al.ternative Regise s for Marine Resources Underlyi.ng theHigh Seas," 1 Nat. Res. Lawyer No. 2! 63, 67-70 �968!; Browning, "Exploitationof Submarine Mineral Resources Beyond the Continental Shelf," 4 Tex. Int '1. L.Forum 1, 8-10 �968!; see also the articles supporting the various positiveproposals which, by implication, oppose the wait and see attitude.

Notes

�! Another approach is to divide the problem into the following threeissues: a! Where shall title be vested? b! Who shall administer the ex-Pl«ation for and exploitation of the resources' c! Where shall the royaltyproceeds of such enterprises be paid? One can construct on this model a wide

of possibilities by combining the various suggestions outlined abovein all possible permutations. For example, the deep ocean floor resourcesmight be owned by the United Nations, administered by the nearest coastal states,and all revenues ~aid to the International Red Cross. Or the area might beowned by the nearest coastal states, administered by an international agency,and revenues ~slit 50-50 between the coastal state and the United Nations Chil-dren's Fund UNICEF!,

Analyze the following possibility in light of Christy's criteria and otherfactors: a! The deep ocean floor' is dec lared by a General Assembly resolu-tion to be res communis, the proper.ty of a ll mankind, and not sub]ect tonational appropriation; b! The exploration for and exploitation of the resourcesis to be administered by a new specialized agency of the United Nations whichwould be governed by a board composed of members of the coasts 1 states havingthe most advanced deep ocean mining capabilities; c! The royalties would bepayable, first to cover any operating deficit in the general fund of the UnitedNations, the remainder to the Internationa 1 Bank for Reconstruction and Develop-ment World Bank! to be administered by that body, such funds to have no effecton the contributions of members or composition of the boa rd of the World Bank.

�! On the general topic of the deep ocean floor, see also Rich and Engle-hart, "A Proposal from a United S tates and Soviet Scientist: Oceanic Resourcesand Developing Nations," Bulletin of, Atomic Scientists February, 1968!; Christy,"The Lega 1 Aspec t of the Exp 1oi ta ti on of Of f shore Nine ra 1 Depos i ts: Hi ning i nInternational Waters," 20 Mining Engineering 149 July, 1968!; Wiggins, "U. S.Suggests Possible Steps by U. N. to Promote Peaceful Uses of the Deep OceanFloor," 59 Dept. State Bull. 554 �968!; Hull, "The Political Ocean," 45 ForeignAffairs 492 �967!; Oswald, "Toward a political Theory of the Ocean," 2 H T.S ~Proc. 35S �966!; Griffin, uDeveldpmetlt of Law for Ocean Activities," 2 M.T.S.Proc. 348 �966!; Bennett, "Legal Climate for Underseas Nining," 2 M.T.S. Proc.204 �966! .

�! On the adaptation of existing legal systems to the deep ocean floor,either through a wait and see approach, or through the national lake or flagnation approaches, consider the following:

"{Ij t is a mistake to think that by some ingenious manipulation of ex-isting legal doctrines we can always find a solution for the problemsof a changing international world. That is not so; for many ofproblems... the only remedy is that States should be willing to takemeasures to bring the legal situation into accord with new needs, and ifStates are not reasonable enough to do that, we must not expect the ex-isting law to relieve them of the consequences." Brierly, The Law of~Rat'ons �th ed., 1955! at. 264.

CHAPTER l l

Pol lut ion o f the Nar inc gnviro»merit

"It matters so little Lo the maioril' of l ivillgbeings what the minorit'y, that calls itselfhuman, desires or decides," E. N. Vorster,A Pas sage to lied ia �924! .

A. t'tl l. 1] Introduction,

The truth of the Forster quotation. written in l924, has not survivedthe twen tieth century. The majority of living beings" are icry directlyaf feet cu today by wha t t he uminority, that calls itse1 f hu>nan. desires ordecides." Through the effect of human acts, human life is itself being ad-versely affected by environmental modification.

'i'he principal concern today is cal led "pollution," although there are un-doubtedly many effects caused by man which may alter his environment whiclj arcnot c asily categorized under thi.s heading.

Perhaps because of the amount of international. and national legislation,and several recent disasters, the most widely known form of marine pol lutionis that caused by the discharge of oil into the sea. This type of pollutioncan come from various sources: �! accidents involving oil-carrying tankers;�! accidents involving fixed machinery including pipelines! for exploitinghydrocarbon resources from submerged areas; and �! intentional dischargeof bilge and other matter which may contain. oil impurities.

The sea has in recent years also been used as a depository for radio-active waste materials which are too dangerous to keep in upland, inhabitedareas. Obviously this waste may be equally harmful to the ecological systemof the ocean. Further, the intense heat generated may cause local variationsin water temperature which can adversely affect the marine habitat. Thisef feet is commonly known as "thermal" pollution, and can be caused by coastalnuclear reactors, nuclear desalination plants, coastal electric plants, andother machinery producing substantial amounts of heat and using sea water asa coolant.

Sometimes overlooked, because it does not involve the introduction ofa physical impurity into the air or water, is aesthetic pollution- Coastalareas have always been highly regarded as a public resource, valuable forscenic beauty as well as recreational use. Intensive use of territorial seasubmerged lands and the continental sheLf, involving offshore platforms andsupport operations, and onshore processing facilities, can seriously impairthe utility of such areas both with respect to scenic attributes and recrea-tional value.

Typical dictionary definitions ofoul, unclean, impure or corrupt; toJn its most common application to thes ide red as the physical cont aminat ionare harmful to life or property. Butenvironment is much broader, nearly a

f the verb "pollute" include: "to makedesecrate, defile or contaminate."natural environment, poll«tion is con-of the air or water with elements whichthe concept as applied to the marine

s much so as the dictionary definition.

There will, undoubtedly be other forms of pollution of the marine en-vironment as technology progresses, but the above itemization contains thosewith which individuals, industry and the government are most concerned today.The following materials are directed to these areas.

B. Le al As ects of Pollution of the Narine Environment.

a. [ 511. 2 J International re u lat ion.

"Pollution of the Sea by Oil"Memorandum by the Secretariat of the United Nations

I Official Records 169 October 29, 1957!

WORK DONE ON THE INTERNATIONAL LEVEL BEFORE THE SECOND WORLD WAR

1, The problem of pollution of the sea by oil has been under study formany years and has been considered by national and international bodies and byGovernments.

2, At the invitation of the Government of the United States of America,an international conference of experts, the Preliminary Conference on Oilpollution of Navigable Waters, met at Washington in June l926. The objectof this Conference was "to facilitate an exchange of views on technical mattersand to consider the formulating of proposals for dealing with the proble~ ofoil pollution of navigable waters through international agreement." Althoughthe text of a draft convention was adopted at the Conference, no agreement wassigned,

3. The United Kingdom Government, having considered that the pollution.of the sea owing to the discharge of oil or oily water was increasing, decidedto submit this matter to the League of Nations. A letter, dated 19 July 1934.was sent by that Government to the League, drawing attention to the pollutionof the sea coast of the United Kingdom, damage to inshore fisheries and destruc-tion of sea birds caused by discharge of oil from vessels at sea.

4. At the fifteenth ordinary session of the Assembly of the League �934!,it was agreed that the Communications and Transit Organization of the Leaguewould undertake an initial inquiry, on the understanding that it would con-vene a committee of experts from various countries to study the problem moreclosely.

5. This Committee, composed of experts from Denmark, Fra~ce, Italy. Japan,the United Kingdom and the United States, set at Geneva in November 1934. Onthe basis of information describingthe conditions in the ports and waters ofvarious countries, the experts agreed that considerable damage was done bypollution of sea water by oil,

6, The Communications and Transit Organization, in pursuance of thework and findings of the Committee, submitted a resolution to the Councilof the League concerning the conclusion of an international convention onthis sub ect.su ject. The object of such a convention was to find, by internationalagreement, some methods whereby oil-burning and oil-carrying ships might beprevented from discharging oil or oily mixtures in coastal areas, sincethese substances might drift and travel sometimes for considerable distances,

482.

depending on the wind and tide conditions then prevailing, and cause thepollution of the surrounding sea waters. It was admitted, however. that noremedy could prevent pollution caused by discharge of oil resulting fromcollisions and shipwreck or from vessels in order to c aim the seas duringstorms and to facili.tate rescues.

7. After having studied the Communications and Transit Organization'srecommendation, the Council of the League adopted, in January 1935, thefollowing resolution:

"The Council

"Authorizes the Communications and Transit Organization to make all thenecessary preparatory studies with a view to facilitating the future conclusionof an international convention in regard to the pollution of the sea by oil."

8. In order to give effect to the resolution adopted by the Council., theSecretary-General, on 23 January 1935, addressed a circular letter, togetherwith a questionnaire, to all States Members of the League and to non-memberStates, a total of sixty-nine Governments.

9. The replies received showed that, on the whole, the problem was of aserious nature and would justify an international convention. The Assembly,therefore, at its sixteenth session, adopted a resolution �4 September 1935!by which, inter alia, the Council was requested "to instruct the Communicationsand Transit Organization to take as rapidly as possible, and with the assistanceof expert advice, if required, the necessary steps to complete the preparationof a draft convention and to submit that draft to Governments for considera-tion." The Council was also invited "in the l.ight of the observations receivedfrom Governments to convene an international conference on oil pollution atan appropriate time." The Council subsequently adopted a resolution on 27September 1935, by which it instructed "the Communications and Transit Or-ganization to complete the preparation of a draft convention on this subjectfor the consideration of Governments and to report to the Council when the ob-servations from the Governments have been received."

1O. In order to give effect to the above-mentioned resolutions, theCommittee of Experts was reconvened and held its second session in October 1935,at Geneva. The Committee prepared a new draft convention and a draft finalact on the basis both of the draft Washington Convention of 1926 and of theanswers received from Governments to the questionnaire mentioned above.

ll. The Advisory and Technical Committee for Communications and Transit,at its nineteenth session November 1935!, adopted a resolution by which itdecided to transmit these drafts to the Governments with the request that theyshould send to the Secretary-General of the League of Nations any observationsthey might see fit to make, at the same time informing him whether they wereprepared to attend, on the basis of these drafts, an international conferenceconvened for the purpose of concluding such a convention. Nearly all the repliesreceived from the States with sea coasts were in favour of concluding such aconvention, and all the important maritime countries which replied were pre-pared to participate in the proposed conference

12. The Council, at its ninety- fourth session, decided to convene an in-ternational conference to adopt the draft convention.

13. This conference never took pl.ace, because three important maritime

483.

countries -- Japan, Germany and Italy - � whose par ticiption was considerednecessary from a technical point of view, were not in a position to be invitedto attend a conference convened under the auspices of the League of Nations.Finally, on account of the war, the matter was not further pursued.

II.. WORK DONE BY THE UNITED NATIONS, 195G-1954.

14. The question of pollution of the sea was brought before the UnitedNations Transport and Communications Commission at its fourth session March-April 1950!. Since the time when the League of Nations hsd dealt with thematter, considerable changes had taken place both in the fuels used by themerchant marine and in the quantity of oil transported by sea. Those changeson1y made the question more acute,

15. The Commission decided that the Inter-governmental Maritime Consulta-tive Organization IMCO!, when it had started functioni.ng, would be the com-petent agency to handle this subject. It considered, however, that in themeantime it would be appropriate to mtk Governments if they were interested inthe problem and, if so, which aspects of it seemed to them to deserve specialattenti.on. The Commission also discussed the question whether this studyshould include the pollution of sea water by atomic waste from fuel used byships.

16. At its eleventh session July-August 1950!, the Economic and SocialCouncil adopted a resolution in conformity with the Commission's recoITssenda-tions, and invited the Governments possessing the technical facilities to doso to undertake research studies on the problem.

17. At its fifth session March 1951!, the Transport and CommunicationsCommission took note of the replies received from Governments in response tothis invitation. At its sixth session February 1953!, it proposed that acosssittee of experts should be established, and this proposal was endorsed bythe Economic and Social Council in resolution 468B XV!.

18. In the course of his consultations on the establishment of this conmftteeof experts, the Secretary-General had been informed by the Government of theUnited Kingdom that, in view of the increasing seriousness of the pollution ofits coasts, and following consideration of the recommendations of a committeeit had appointed to consider the matter, the United Kingdom Government intendedto issue invitations to the major maritime Powers to attend an ad hoc diploma-tic conference in London in April-May 1954 It had further stated that anyagreement which might emerge from the conference would be brought within thescope of IMCO when i.t was set up,

III. THE INTERNATIONAL CONFERENCE ON POI.LUTION OF THE SEA BY OIL�LONDON, 16 APRIL - 12 MAY 1954.

19. The London Conference, which was attended by represpntatives of for'ty-two countries and at which the Secretary-General of the United Nations was re-presented, adopted an International Convention for the Prevention of Pollutionof the Sea by Oil. The Convention was signed by twenty countries

Note

I! In 1956 the United Nations published a document entitled "Pollutionof the Sea by Oil, " U N. Doc. ST/ECA/41! which was a collection and analysis

484,

of information provided by states which had participated in the London Con-ference. Contained in the document is information on laws snd regulations inforce or in preparation at that time in several countr'ies with respect topollution of the sea by oil.

International Convention for the Prevention of Pollutionof the Sea by Oi 1, 1954, as amended.

[l.961I 12 U. S. T, 2989, T. I.A. S. No. 4900;[1962] 17 U.S.T. 1524, T.I.A.S. No. 6109

Article I

�! For the purposes of the present Convention, the following expressionssha1.1 unless the context otherwise requires! have the meanings hereby respec-tively assigned to them, that is to say;

"Discharge" in relation to oil or to oily mixture means any discharge oror escape howsoever caused;

"Mile" means a nautical mile of 6,080 feet or 1,852 metres;

"Oil" means cr'ude oil, fuel oil, heavy diesel oil and lubricating oil,and "oily" shall be construed accordi.ngly;

"Oily mixture" means a mixture with an oil content of 100 parts ormore i,n 1,000,000 parts of the mixture;

"Organization" means the Inter-Governmental Maritime Consultative Organi-zation;

"Ship" means any sea-going vessel of any type whatsoever, inc ludingfloating craft, whether self-propelled or towed by another vessel,making a sea voyage; and "tanker" means a ship in whi.ch thegreater part of the cargo space is constructed or adapted for thecarriage of liquid cargoes in bulk and which is not, for the timebeing, carrying a cargo other than oil in that part of its cargospace.

�! For the purposes of the present Convention, the territories of a ContractingGovernment mean the territory of the country of which it is the Government andany other territory for the international relations of which it is responsibleand to which the Convention shall have been extended under Article XVIII.

Article II

�! The present Convention shall apply to ships registered in any of theterritories of a Contracting Government and to unregistered ships having thenationality of a Contracting Party, except:

a! tankers of under 150 tons gross tonnage and other ships of under500 tons gross tonnage, provided that each Contracting Government

will take the necessary steps, so far as is reasonable and practicable,to apply the requirements of the Convention to such ships also. havingregard to their size, service and the type of fuel used for theirpropulsion;

b! shi.ps for the time being engaged in the whaling industry when actuallyemployed on whaling operations;

c! ships for the time being navigating the Great Lakes of North Americaand their connecting and tri.butary waters as far east as the lower exitof St. Lambert Lock at Montreal in the Province of Quebec, Canada;

d! naval ships and ships for the time being used as naval auxi.liaries,

�! Each Contracting Government undertakes to adopt appropriate measures en-suring that requirements equivalent to those of the present Convention are,so far as is reasonable and practicable applied to the ships referred to insubparagraph d! of paragraph �! of this Article.

Article III

SubJect to the provisions of Articles IV and V:

a! the discharge from a tanker to which the present Convention applies,within any of the prohibited zones referred to in Annex A to theConvention, of oil or oily mixture shall be prohibited;

b! the discharge from a ship to which the present Convention applies,other than a tanker, of oil or oily mixture shall be made as far aspracticable from land. As from s date three years after that on whichthe Convention comes into force for the relevant territory in respectof the ship in accordance with paragraph I! of Article II, sub-para-graph a! of this Article shall apply to a ship other than a tanker,except that the discharge of oil or of oily mixture from such a shipshall not be prohibited when the ship is proceeding to a port notprovided with such facilities for ships other than tankers as arereferred to in Article VIII;

c! the discharge from a ship of 20,000 tons gross tonnage or more, towhich the present Convention applies and for which the building contractis placed on or after the date on which this provision comes into force,of oil or oily mixture shall be prohibited. However, if, in theopinion of the master, special circumstances make it neither reasonablenor practicable to retain the oil or oily mixture on board, it may bedi.scharged outside the prohibited zones referred to in Annex A to theConvention. The reasons for such discharge shall be reported to theContracting Government of the relevant territory in respect of theship in accordance with pragraph I! of Article II. FuLL details ofsuch dischargee shaLl be reported to the Organization at least everytwelve aonths by Contracting Governments.

Article IV

Article III shall not apply to:

a! the discharge of oil or of oily mixture from a ship for the purpose ofsecuring the safety of a ship, preventing damage to a ship or cargo,

486.

or saving life at sea;

the escape of oil or of oily mixture resulting from damage to a shipor unavoidable leakage, if all reasonable precautions have been takenafter the occurrence of the damage or discovery of the leakage for thepurpose of preventing or minimizi.ng the escape;

b!

c! the discharge of residue arising from the purification or clarificationof fuel oil or lubricating oil, provided that such discharge is madeas far from land as is practicable.

Article V

Articl.e III shall not apply to the discharge from the bilges of a ship:

during the period of twelve months following the date on which thepresent Convention comes into force for the relevant territory inrespect of the ship in accordance with paragraph �! of Article II,of oily mixture;

a!

b! after the expiration of such period, of oily mixture containing nooil other than lubricating oil which has drained or leaked from machi-nery spaces.

Article VI

�! Any contravention of Articles III and IX shall be an offence punishableunder the law of the relevant territory in respect of the ship in accordancewith paragraph I! of Article II.

�! The penalties which may be imposed under the law of any of the territoriesof a Contracting Government in respect of the unlawful discharge from a shipof oil or oily mixture outside the territorial sea of that territory shall beadequate in severity to discourage any such unlawful discharge and shall not beless than the penalties which may be imposed under the l.aw of that territoryin respect of the same infringements within the territorial sea ~

�! Each Contracting Government shall report to the Organization the penaltiesactually imposed for each infringement,

Article VII

�! Carrying water ballast in oil fuel tanks shall be avoided if possible.

Article VIII

�! Each Contracting Government shall take all appropriate steps to promotethe provision of facilities as follows:

a! according to the needs of ships using them, ports shall be provide

�! As from a date twelve months after the present Convention comes into forcefor the relevant territory in respect of a ship in accordance with paragraph �!of Article II, such a ship shall be required to be so fitted as to prevent, sofar as reasonable and practicable, the escape of fuel oil or heavy diesel oilinto bilges, unless effective means are provided to ensure that the oil in thebilges is not discharged in contravention of this Convention.

487,

b! oil loading terminals shall be provided with facilities adequatefor the reception of such residues and oily mixtures as would simi-larly remain for disposal by tankers;

c ! ship repair ports shall be provided wiCh facili,ties adequate forthe reception of such residues and oily mixtures as would similarlyremain for disposal by all ships entering for repairs.

�! Each Contracting Government shall determine which are the ports and oilloading terminals in its territories suitable for the purposes of sub-para-graphs a!, b! and c! of paragraph �! of this Article.

�! As regards paragraph �! of this Article, each Contracting Governmentshsl l report to the Organization, for transmission to the Contracting Govern-ment concerned, all cases where the facilities are alleged to be inadequate.

Arttcle IX

�! Of the ships to which the present Convention applies, every ship whichuses oil fuel and every tanker shall be provided with an oil record book,whether as part of the ship's offici,al log book or otherwise, in the formspecified in Annex 8 to the Convention.

�! 1>e oil recotd book shal 1 be completed on each occasion, whenever any ofl.he following operaCions takes place in the shi p:

a! ballasting of and discharge of ballast from cargo tanks of tankers; b! cleaning of cargo tanks of tankers;

c! settling in slop tanks and discharge of water from tankers; d! disposal from tankers of oily residues from slop tanks or other sources. e! ballastin or clg, cleaning during voyage, of bunker fuel tanks of shi sot her than tankers; anso s ps

f! disposal from shi s other tp han tankers of oily residues from bunkerfuel tanks or other sources; g! accidental ot' other exexceptional discharges or escapes of oil fromtankers or ships other than tankers.

ln the event of such discharge or escape of oil. or of.lpe o o or of.ly mixture as is referred

made in the oil record b k fa ap c o Article Ill or in Arti,cle IVe , a statement shall be

charge or escape,recor oo of the circumstances of and reason for, the dis-

�! Each operation descz'ibed in paragra h �! orecorded without. dela i a rap ! of this Article shall be fullybook appropriate t thou e ay in the oil record book so t

a o at operation are corn leted.o hat all the entries in thebe signed by the of f ie o cer or officers in charp eted. Each page of the book shall

rge of the operations concerned and,

with facilities adequateundue delay to ships, ofremain for df.sposal fromwater had been separated

for the reception, without causingsuch residues snd oily mixtures as wouldships other than tankers if the bulk of thef rom the mix ture;

488.

when the ship is manned, by the master of the ship. The written entries inthe oil record book shall be in an official language of the relevant territoryin respect of the ship in accordance with paragraph �! of Article II, or inEnglish or French.

�! Oil record books shall be kept in such a place as to be readily availablefor inspection at all reasonable times, and, except in the case of unmannedships under tow, shall be kept on board the ship. They shall be preservedfor a period of two years after the last entry has been made.

�! The competent authorities of any of the territories of a ContractingGovernment may inspect on board any ship to which the present Conventionapplies, while within a port in that territory, the oil record book requiredto be carried in the ship in compliance with the provisions of this Article, andmay make a true copy of any entry in that book and may require the master ofthe ship to certify that the copy is a true copy of such entry. Any copy somade which purports to have been certified by the master of the ship as a truecopy of an entry in the ship's oil record book shall be made admissible in anyjudicial proceedings as evidknce of the facts stated in the entry . Any actionby the competent authorities under this paragraph shall be taken as expedi-tiously as possible and the ship shall not be delayed.

Article X

�! Any Contracting Government may furnish to the Government of the relevantterri. tory in respect of the ship in accordance with paragraph �! of Article IIparticulars in writing of evidence that any provision of the present Conventionhas been contravened in respect of that ship, wheresoever the alleged contra-vention may have taken place. If it is practicable to do so, the competentauthorities of the former Government shall notify the master of the ship of thealleged contravention.

�! Upon receiving such particulars, the Government so informed shall investi-gate the matter, and may request the other Government to furnish further orbetter particulars of the aLleged contravention. If the Government so informedis satisfied that sufficient evidence is available in the form required by itslaw to enable proceedings against the owner or master of the ship to be takenin respect of the alleged contravention, it shall cause such proceedings to betaken as soon as possible, and shalL inform the other Government and the Organi-zation of the result of such proceedings.

Article XI

Nothing in the present Convention shall be construed as derogating fromthe powers of any Contracting Government to take measures within its juris-diction in respect of any matter to which the Convention relates or as ex-tending the jurisdiction of any Contracting Government,

Article XII

Each Contracting Government shall send to the Bureau and to the appropriateorgan of the United Nations:-

a! the text of laws, decrees, orders and regulations in force in itsterritories which give effect to the present Convention;

b! all official reports or summaries of official reports in so far as

489,

they show the results of the application of the provisions of theConvention, provided always that such reports or summaries are not,in the opinion of that Government, of a confidential nature.

Article XIII

Any dispute between Contracting Governments relating to the interpretationor application of the present Convention which cannot be settled by negotiationshall be referred at the request of either party to the International Court ofJustice for decision unless the parties in dispute agree to submit it to ar-bitration.

ANNEX APROHIBITED ZONES

�! All sea areas within 50 miles from the nearest land shall be prohibitedzones.

For the purposes of this Annex, the term "from the nearest land" means"from the base-line from which the territorial sea of the territory in questionis established in accordance with the Geneva Convention on the Territorial Seaand the Contiguous Zone, 1958."

[The Annex then lists areas which, although more than 50 miles from the nearestland, are also prohibited zones. These include an additional 50 miles off thewest coast of Canada; and specified areas usually 50 additional miles andsometimes conditioned upon the ad]scent coastal state becoming a party to theConvention! in the North Atlantic Ocean, the North Sea, the Baltic Sea, theMediterranean Sea, the Adriatic Sea, the Black Sea, the Sea of Azov, the RedSea, the Persian Gulf, the Arabian Sea, the Bay of Bengal, the Indian Ocean andthe waters surrounding Australia.f

Notes

�! The original Convention was opened for signature on Nay 12, 1954, andentered into force on July 26, 1958. States party to the Convention as of theFebruary 24, 1969 issue of the De artment of State Bulletin are: Algeria,Australia, Belgium, Canada, Denmark, Dominican Republic, Finland, France, 1/Federal Republic of Germany, Ghana, Greece, Iceland, lakeland, Israel, Italy,1vory Coast, Japan, Jordan, Ku~ait, Lebanon, Liberia, � Madagascar, Mexico,ll

Morooco, Nether lands including Netherlands Antilles!, Nigeria, Norway,Pa~arne, Philippines, Poland, Portugal, ~ Spain, Sweden, Switzerland, SyrianArab Republic, United Arab Republic, United Kingdom, United States ~ andVenezuela.

�! The treaty entered inta force for the United States on December 8, 1961,sub]ect to an understanding, two reservations and five recommendations, as follows-'

"In accepting the convention the United States declares that it doesl. With reservation.2. With an understanding, reservations and recommendations.

490.

so mbject to the understanding that article XZ effectively reserves to theparties to the convention freedom of legislative action in ter'ritorialwaters, including the application of existing laws, anything in the con-vention which may appear to be contrary notwithstanding. Specifically.it is understood that offenses in the U.S. territorial waters will continuet»e punishable under U.S. laws regardless of the ship 's registry."

Reservations:

"1 The United States accepts article VIII of the convention, subjectto the reservation that, ~bile it will urge port authorities, oil terminalsor private contractors to provide adequate disposal facilities, the UnitedStates shall not be obliged to construct, operate, or maintain shore fa-cilities at places on U.S. coasts or waters where such facilities may bedeemed inadequate, or to assume any financial obligation to assist in suchactivi.ties;

"2. The United States accepts the convention subject to the reserva-tion that amendments communicated to contracting governments under the pro-visions of paragraph �! of article XVI will become binding upon the UnitedStates of America only after notification of acceptance thereof has beengiven by the United States."

Recommendations:

"The United States of America, in accepting the convention subjectto the aforesaid understanding and reservations, recommends that the partiesgive consideration to the formulation of amendments to the convention atthe earliest practicable date to bring about

"�! International uniformity in fines and penalties;

"�! International uniformity of enforcement;

"�! A more realistic definition of what shall constitute oilpollution;

"�! The right of access of each contracti.ng government to theofficial reports of other contracting governments filed with the bureauwhich relate to its own vessels; and

"�! A more flexible arrangement for fixing the time within whichcontracting governments shall notify the bureau whether or not theyaccept an amendment."

�! The Convention was amended in 1962, the amendments entering intoforce for the United States on May 18, 1967. The Convention articles set forthabove reflect the 1962 amendments.

�! The Convention, and other aspects of pollution of the sea, are cur-rently under review and study by the Intergovernmental Maritime ConsultativeOrganisation, with a view toward further amendment.

�! On the problems involvedProblem of Sea Water Pollution,"London Conference, see ShepheardPollution," 31 Dep't State Bull.

in anti-pollution measures see Mann, "The29 Dep't State Bull. 775 �953!. On theand Mann, "Reducing the Menace of pi]311 �954!. See al so 4 whgteman, ~Dg esp

491,

of International Law, 687-708 �965!.

Ed. Note: At this point refer to 53.13 p. 116! and read Article 24 ofthe Convention on the Bigh Seas.

"Pollution As an International Issue"Abel Wolman

47 Foreign Affairs 1.64 �968! at 172-174.

Oil spills provide another striking reminder of the "oneness" of oceans.ln this instance, the problem is not new. The United States has signed anumber of international conventions for the multilateral regulation of mari-time matters, including the prevention ot pollution of the seas. The 1954International Convention for the Prevention of Pollution of the Seas by Oilwas amended by the contracting governments in April 1962. Some of thesechanges were incorporated earlier by the U.S. Congress in the amended OilPollution Act of 1961. All of these attempts have been directed toward li-miting oily discharges by defining prohibited zones, recording oil di,schargesand losses, promoting the installation of oil-receiving facilities in pcz ts andproviding procedures for the apprehension and prosecution of violators.

Although the conventions have undoubtedly been helpful, they stand in needof considerable improvement. This is true likewise of the Boundary WatersTreaty of 1909 between the United States and Great Britain, and of a wholeseries of bilateral and unil ateral acts of the last forty to fifty years.

again the evil effects of such disasters at sea, including the destructio~ ofbathing beaches and biological life. The wrecks involved most complicatedlegal consequences; and prohibitory le gislation alone proved to be an aston-ishingly weak reed upon which to lean for either the prevention of such disas-

used for cleanup did more damage than the oil. The successes in the case of

recent developments of an effective oil-slick disperssnt may help matters inthe future, but the two cases illustrate the incapacity of nations to cope,both legally and technologically, with "oil out of control."

To the credit of the Governments of the United Kingdom, the United Statesend others, a meeting was called in London in May 1967, two months after the

kmental Maritime Consultative Organization IMCO!, the creation of the 1954 and1962 Oil Pollution Conferences. In discussirg "how to avoi,d the hazards pre-sented by the carriage of oil or other noxious or hazardous cargoes," theLondon conference drew up a long list of preventive measures, all of which, invarying degree, will have to be implemented. This is particularly the casesince the advent of ships that can carry tonnages of oil unheard of even fiveyears ego, the transfer of cargoes from ship to ship offshore snd the re-trans-fer of these cargoes to onshore processing and distri.bution centers.

Among the preventive measures now under discussion are the designation ofsea- lanes and prohibited areas, the addi.tion of navigati.onal aids, shoreguidance for ships near to land, speed restrictions, use of automatic. pilots,review of construction and design, and the organization of intensive watches--all b iy nternational comity. In order to minimize damage when accidents do occur,

492 ~

research and rapid exchange oi findings, on both national and internationallevels, will be required, The recent inc}.dents disclose a great ignoranceof how to manage spills by mechani.cal., chemical or physical means. The de-velopment of methods of recovering oil from bilge water before it is dis-charged into the sea should go far toward reducing one common source of pollu-tion by tankers which are, whether intentionally or unintentionally, violatingthe law Progress with the management of oil spills will undoubtedly effectimprovements in the handling of other noxious and hazardous materials.

legal question arising from accidents at sea are even more perplexing.They can only be noted here, since they are beyond the purview of this paper.Serious questions have already arisen as to a! the legal right of affectednations to participate in official inquiries; b! the legal ability of a statethreatened by a casualty in international waters to take measure to protectits coastline; c! the nature and extent of liability; d! access of foreignsalvage equipment to territorial waters; and e! the powers of coastal statesto pursue surveillance and control procedures . In response to the directive

agencies are working hard to delineate many of these issues and to developmachinery to cope with them.

Note

Keeton, "The Lessons of the Torrey Canyon -- English Law Aspects," 21 Curr.Legal Probs. 94 �968! and Brown, "The Lessons of the Torrey Canyon -- Inter-national Law Aspects," 21 Curr. Legal Probs. 113 �968!. See also the material

0

b. [$11,3] United States re ulation.

011 Pollution Act, 1924Act of June 7, 1924, c, 316; 43 Stat. 604, as amended

by P.L. 89-753, Title II, $211 a!, 80 Stat. 1252 November 3, 1966!.33 U. S. C, A. 5 $431-437

5432. Definitions

When used in sections 431-437 of this title, unless the context otherwiserequires

I! "oil" means oil of any kind or in any form, including fuel oil, sludge,and oi.l refuse;

�! "Person" means an individual, company~ partnership, corporation, orassociation; any owner, operator, master officer, or employee of a vessel;and any officer, agent or employee of the Un}.ted States;

�! "discharge" means any grossly negligent, or willful spilling, leaking,pumping, pouring, emitting, or emptying of oil.

�! "navigable waters of the United States" means all portions of the seawithin the territorial jurisdiction of the United States, and all inland

493,

waters navigable in fact; and

�! "Secretary" means the Secretary of the Interior.

$433. Dischar e of oil -- Prohibition

a! Except in case of emergency imperiling life or property, or unavoidableaccident, collision, or stranding, and except as otherwise permitted by regu-lations prescribed by the Secretary as hereinafter authorized, it is unlawfulfor any person to discharge or permit the discharge from any boat or vessel ofoil by any method, means, or manner into or upon the navigable waters of theUnited States, and adjoining shorelines of the United States.

b! Any person discharging or permitting the discharge of oil from anyboat or vessel, into or upon the navigable waters of the United States shallremove the same from the navigable waters of the United States, and adjoiningshorelines immediately. If such person fails to do so, the Secretary may re-move the oil or may arrange for its removal, and such person shall be liableto the United States, in addition to the penalties prescribed in section 434of this title, for all costs and expenses reasonably incurred by the Secre-tary in removing the oil from the navigable waters of the United States, andadjoining shorelines of the United States. These costs and expenses shallconstitute a lien on such boat or vessel which may be recovered in proceedingsby libel in rem.

c! The Secretary may prescribe regulations which

�! permit the discharge of oil from boats or vessels in such quantitiesunder such conditions, and at such times and places as in his opinion willnot be deleterious to health or marine life or a menace to navigation, ordangerous to persons or property engaged in commerce on navigable watersof the United States; and

�! relate to the removal or cost of removal, or both, of oil fromthe navigable waters of the United States, and adjoining shorelines ofthe Uni.ted States.

5434. Penalties for violations liabilit of vessel

a! Any person who violates section 433 a! of this title shall, uponconvic tion thereof, be punished by a fine not exceeding $2,500, or by im-prisonment not exceeding one year, or by both such fine and imprisonment foreach offense,

b! Any boat or vessel other than a boat or vessel owned and operatedby the United States from which oil is discharged in violation of section433 a! of this title shall be liable for a penalty of not more than $10,000.Clearance of a boat or vessel liable for this penalty from a port of the UnitedStates may be withheld until the penalty is paid. The penalty shall constitutea lien on such boat or vessel which may be recovered in proceedings by libelin rem in the district court of the United States for any district within whichsuch boat or vessel may be.

5485. Revocation or sus ension of license of officers of offendin boatsor vessels

The Commandant of the Coast Guard may, subject to the provisions of

494.

section 239 of Title 46, suspend or revoke a license issued to the master orother licensed officer of any boat or vessel found violating the provisions ofsection 433 of this title.

Notes

�! Observe that the definition of "navigable waters of the Uni.ted States"in 33 U.S.C-A. $432�! limits the applicability of the Oil Pollution Act, 1924,to the territorial sea of the United States i.e., the area from the coast-line to a line three miles from the nearest land!. Waters beyond the terri-torial sea are dealt with by the International Convention for the Preventionof the Pollution of the Sea by Oil, 1954, as amended, and by the Oil PollutionAct, 1961, as amended.

�! The Rivers and Harbors Act of 1899 �0 Stat. 1121; 33 U.S.C. 5407!prohibits the throwing, discha rge or deposit of any refuse matter of any kind,except street and sewage liquid outflow, into navigable waters of the UnitedStates, their tributaries and banks, from floating craft or from shore.

Oil Pollution Act, 1961, as AmendedP. L. 87-167; 75 Stat. 402 �961!; as amended by P. L. 89-551;

80 Stat. 372 �966!.33 U. S. C.A. 551001-1015

$1001. Definitions

As used in this chapter, unless the context otherwise requires

a! The term "convention" means the International Convention for the Pre-vention of the Pollution of the Sea by Oil, 1954, as amended;

b! The term "discharge" in relation to oil or to an oily mixture meansany discharge or escape howsoever caused;

c! The term "heavy diesel oil" means marine diesel oi.l, other thanthose distillates of which more than 50 per centum, by volume distills at atemperature not exceeding three hundred and forty degrees centigrade whentested by American Society for the Testing of Materials standard method D.86/59;

d! The term "mile" means a nautical mile of six thousand and eightyfeet or one thousand eight hundred and fifty-two meters;

e! The term "oil" means crude oil, fuel oil, heavy diesel oil, andlubricating oil, and "oily" shall be construed accordingly. An "oily mixture"means a mixture with an oi.l content of one hundred parts or mor e in one millionparts of mixture.

f! The term "person" means an indivi.dual, partnership, corporation, orassociation; and any owner, operator, agent, master, officer, or employee ofa ship;

g! The term "prohibited zones" means the zones described in section 1011of this title as modified by notices, if any, of extension or reduction issuedby the Secretary;

49S.

h! The term "Secretary" means the Secretary of the Army;

�! The term "ship," sub]ect to the exceptions provided in paragraph �,!of Chis subsec Cion, means any seagoing vessel of any type whaCsoever of Americanregistry or nationality, including floating craft, whether self-propelled ortowed by another vessel making a sea voyage; and "tanker," as a type includedwithin the term "ship," means a ship in which the greater part of the cargospace is constructed or adapted for the carriage of liquid cargoes in bulk andwhich is not, for the time being, carrying a cargo other than oil in that partof its cargo space.

�! The following categories of vessels are excepted fran all provisionsof this chapter:

i! tankers of under one hundred and fifty tons gross tonnage andother ships of under five hundred tons gross tonnage.

if ! ships for the time being engaged in the whaling industry whenactual1y employed on whaling operations.

ili! ships for the time heing navi.gating che Great Lakes of North Americaand their connecting and tribuCary waters as far east as the lower exitof Saint I~bert Lock aC Montreal in the Province of Quebec, Canada.

iv! naval ships and ships for the time being used as naval auxiliaries.

J! The term "from the nearest land" means from the baseline from which theterritorial sea of the territ'ory in question is estab lished in accordance withthe Geneva GonvenCion on the Territorial Sea snd the Contiguous Zone, 1958,

51002. Prohibition a ainst dischar e of oi,l or oil mixtures ermissibledts~chsr escr r~culatlons

Sub!oct to the provisions of sections 1003 and 1004 of this title, it shallbe un1awful for any person to discharge oil or oily mixture from:

a! a tanker within any of the prohibited zones.

b! a ship, other than a tanker, within any of the prohibited zones,except when the ship is proceeding to a port not provided with facilitiesadequate for the reception, without causing undue delay, it may dischargesuch residues and oily mixture as would remain for disposal if the bulkof the water had been separated from the mixture: Provided, such dis-charge is made as far as practicable from land.

c! a ship of twenty thousand tons gross tonnage or more, including atanker, for which the bui lding contract is placed on or af ter the effectivedate of this chapter. However, if in the opinion of the master, specialcircumstances make it neiCher reasonable nor practicable to retain the oilor ol ly mixture on board, it may be discharged outside the prohibited zones.The reasons for such discharge shell be reported in accordance with theregulations prescribed by the Secretary.

496.

33003. ~txce ted dtschar es secnrin safet of shi revention ofd t hi car o' savin 1 ife dama ed shi or unavoidable leaka e;residue from urification or clarification

Section 1002 of this title shall not apply to

a! the discharge of oil or oily mixture from a ship for the purposeof securing che safety of a ship, preventing damage to a ship or cargo,or saving life at sea; or

b! the escape of oil, or of oi.ly mixture, resulting from damageto a ship or unavoidable leakage, if aLl reasonable precautions havebeen Laken after the occurrence of the damage or discovery of the leakagefor Lhe purpose of preventing or minimizing the escape;

c! the discharge of resi.due arising from the purification or clarifi-cation of fuel oil or lubricating oil: Provided, That such discharge ismade as far from land as practicable.

$1004. Exce ted dischar es. oil mixtures from bil es

Section 1002 of this title shall not apply to the discharge from thebi.lges of a ship of an oily mixture containing no oil other than lubricatingoil which h as drained or leaked from machinery spaces.

$1005. Penalties for violations liabilit of vessel,

hny person who violates any provision of the chapter, except sections1007 b! and l008 of this title, or any regulation prescribed in pursuancethereof, is guity of a misdemeanor, and upon conviction shall be punished by afine not exceeding $2,500 nor less than $500, or by imprisonment not exceedingone year, or by both such fine and imprisonment, for each offense, And anyship other than a ship owned and operated by the United States! from whichoil is discharged in violation of Chis chapCer, or any regulation prescribedin pursuance thereof, shall be liable for the pecuniary penalty specified inthis section, and clearance of such ship from a port of the United States maybe withheld until the penalty is paid, and said penaLty shall constitute alien on such ship which may be recovered in proceedi.ngs by libel in rem in thedistrict court of the United States for any district within which the ship may be.

51006. ~Sus ension or revocaCion of license of officers of offendin vessels

The CoasL. Guard may, subject to the provisions of section 239 of Title 46,suspend or revoke a license issued to the master or other licensed officer ofany ship found violating the provisions of this chapter or the regulationsissued pursuant thereto.

51008. Oil record book -- Frintin ' re ulations b Secretar

a! The Secretary shall have printed separate oil record books, containinginstructions and spaces for inserting information in the form prescribed byChe Convention, which shall be published in regulations prescribed by theSecreCary-

b! If subject to this chapter, every ship using oil fuel and every tanker

497,

shal 1 be prov e, w t ou c11 b id d ithout charge, an oil record book which shal I be carriedon board. T e prov s ons ob d. Th rovisions of section 140 of Title 5 shall not apply The owner-ship of the booklet shall remain in the United States Government. This bookshall bc avai a,-1 11 1 il ble for inspection as provided in this chapter and for surrenderio the United States Government pursuant to regulations of the Secretary,

c! The oil record book shall be completed on each occasion, whenever anyof the following operations takes place in the ship:

�! ballasting of and discharge of ballast from cargo tanks of tankers;

�! cleaning of cargo tanks of tankers;

�! settling in slop tanks and discharge of water from tankers;

�! disposal from tankers of oily residues from slop tanks or othersources;

� ! ballasting, or cleaning during voyage, of bunker fuel tanksof ships other than tankers;

�! disposal from ships other than tankers of oily residues frombunker fuel tanks or other sources;

�! accidental or oCher exceptional discharges or escapes of oil fromt:ankers or ships other than Cankers.

ln the event of such discharge or escape of oil or oily mixture, as isreferred to in sections 1002 c! and 1003 of this title, a statement shall bemade in the oil record book of the circumstances of, and reason for, the di.s-charge or escape,

d! Each operation described in subsection c! of this section shall befully recorded without delay in the oil record book so that all the entries inthe book appropriate to that operation are completed. Each page of the bookshall be signed by the officer or officers in charge of the operations con-cerned, and, when the ship is manned, by the master of the ship.

e! Oil record books shall be kept in such manner and for such length oftime as set forth in the regulations prescribed by the Secretary.

f! 1 f any person fails to comply with the requirements imposed by or underthis section, he shall be liable on conviction to a fine not exceeding $1, 000nor less than $500 and if any person makes an entry in any records kept in ac-cordance with this chapter or regulations prescribed thereunder by the Secre-tary which is to his knowledge false or misleading in any material particular,he shall be liable on conviction to a fine not exceedi.ng $1,000 nor less than$500 or imprisonment for a term not exceeding six months, or both.

$1011, Prohibited zones ublication of reduction or extension of zones

a! All sea areas within fifty miles from the nearest land shall be pro-hibited zones, subject to extensions or reduction effectuated in accordancewith the terms of the Convention, which shall be published in regula tionsprescribed by the Secretary,

498.

b! With respect to the reduction or extension of the zones describedthe terms of the Convention, the Secre tary aha l.l give notice thereof by

publ ication of such information in Notices to Mariners issued by the UnitedStates Coast Guard and United States Navy.

!l014. Ef feet on other laws

Nothing in this chapter or in regulations issued hereunder shall be construedto modify or amend the provisions of the Oil Pollution Act, 1924, or of section89 of Ti t le 14.

Note

�! The Oil Pollution Act, 1961, was the United States' implementinglegislation with respect to the International Convention for the Preventionof the Pollution of the Sea by Oil, 1954. Implementing legislation in theUnited Kingdom consi sts of the British Oil in Navigable Waters Act, 1955 Act of May 6, 1955, 3 & 4 Eliz. 2, c. 25! and the British Continental ShelfAct 1964 Act of April 15, 1964, sec. 5, Eliz. 2, c, 29!

46 U. S.C. 5183

9 Stat. 635!

5183. Amount of liabi1 it loss of life or bodil in ur ' rivitirn uted to owner "sea oin vessel"

a! The liability of the owner of any vessel, whether American or foreign.,for any embezzlement, loss, or destruction by any person of any property, goods,or merchandise shipped or put on board of such vessel, or for any loss, damage,or injury by collision, or for any act, matter, or thing, loss, damage, orforfeiture, done, occasioned, or incurred, without the privity or knowledgeof such owner or owners, shall not, except in the cases provided for in sub-section b! of this section, exceed the amount or value of the interest ofsuch owner in such vessel, and her freight then pending.

b! In the case of any seagoing vessel, if the amount of the owner' sliability as limited under subsection a! of thi.s section is insuf f icient topay all losses in full, and the por tion of such amount applicable to thepayment of losses in respect of loss of life or bodily injury is less than$60 per ton of such vessel 's tonnage, such portion shall be increased to anamount equal to $60 per ton, to be avai.lable only for the payment of lossesin respect of loss of life or bodily injury. If such portion so increasedis insuffici.ent to pay such losses in full, they shall be paid therefromin proportion to their respective amounts.

d! The owner of arly such seagoing vessel shall be liable in respect ofloss of life or bodily injury arising on distinct occasions to the same ex-tent as if no other loss of life or bodily injury had arisen.

499,

! ln res ect of loss of life or bodily in]ury the privity or knowledgeof the master o a seago ng vesh f a seagoing vessel or of the superintendent or managing agentof the owner thereof, at or prior to the commencement of each voyage, shaI 1 bedeemed conclusively the privity or knowledge of the owner of such vessel,

Notes

L! In Mendelsohn, "Maritime Liability for Oil Pollution -- Domestic andInternational Law," 39 Geo. Wash. L. Rev, 1 �969! it is noted that:

The statute governing limitations of liability of merchant vessels,as originally enacted, and as it continues to read today [viz., 46 U.S.C.5183J, provides that in a disaster Like that of the Torrey Canyon thevessel owner may limit his liability, in the absence of a finding of"privity or knowledge," to the value of the vessel. As interpretedby the Supreme Court in 1871 [Norwich 6 N.Y. Transp. Co. v. Wright,80 U. S, �3 Wal l. ! 104 �871! I, the vessel's value is determined after ~not before, the accident. Thus in the Torrey Canyon case a United Statesfederal district court held that the value of that vessel was $50 00the value of the one lifeboat that was not destroyed in the disaster.Accordingly, the vessel owner was permitted by the district court tofile a limitation petition in that amount [see In re Barracuda TankerCorp., 281 F . Supp. 228 S. D, N. Y. 1968! I .

12! For other articles dealing with matter of liability for ocean pollution,see O' Connell, "Continental Shelf Oil Disasters: Challenge to InternationalPollution Control," 55 Cornell L. Rev. 113 �969!, "Oil Pollution of the Sea,"10 Harv. Int'1 L. 3. 316 �969! [comment], and Sweeney, "Oil Pollution ofthe Oceans," 37 Fordham L. Rev. 155 �968!,

Ed. Note: The Outer Continental Shelf Lands Act see 59,11 ~su ra!contains no specific provisions relating to pollution, However, the regula-tions promulgated by the Secretary of the Interior pursuant to the powerdelegated to him in 43 U,S.C. 51334 contain the following provisions:

30 C.F. R. 250.30 -- before Santa Barbara see ost .502

The lessee shall comply with the terms of the lease, with the writtenorders of the supervisor, and, sub]ect to the provisions of section 5 a!of the act, with the regulations in this part and any amendments thereof.The lessee shall take all reasonable precautions to prevent damage orwaste of any natural resource or in!ury to life or property or the acquaticlife of the seas."

2, 30 C, F. R. 5250. 30 -- after Santa Barbara:

The lessee shall comply with the terms of applicable laws and regula-tions, the lease terms, OCS Orders and other written orders and rules ofthe supervisor, and with oral orders of the supervisor. All such oralorders shall be effective when issued, and are to be confirmed in writing

The lessee shall take all necessary precautions to prevent damageto or waste of any natural resource or in]ury to life, or property, or theaquatic life of the seas.

500,

3. 30 C. F. R. $250.40 -- unchan ed:

a! The lessee shall take all reasonable precautions for keepingall wells under control a t all times

b! The l.essee shall take all reasonable precautions to preventwell from blowing open and shall take immediate steps and exercisedue diligence to bring under control any such well. Storm chok«or similar safety devices shall be i,ns tailed in any well capableflowing oil or gas

4. 30 C.F.R. 5250.42 -- unchan ed:

The lessee shall not pollute the water of the high seas or damage theaquatic life of the sea or allow extraneous matter to enter and damageany mineral or water-bearing formation. The lessee shall dispose of alluseless liquid products of wells in a manner acceptable to the super-visor.

The reference in old 30 C.F,R. $250,30 to section 5 a! of the OuterContinental Shelf Lands Act, is to 43 U,S.C. 51334 a!�! which provides thatouter continental shelf leases are subject to compliance with regulationsissued under the Act and "in force and effect on the date of the issuanceof the lease." To the extent that the regulations quoted above have beenamended an issue arises as to applicability of such later-enacted regulationsto previously existing leases. To avoid this problem in the future, the re-vised form of oil and gas lease for outer continental shelf lands providesthat:

This lease shall also be subject to regulations hereaf ter i.s sued by theSecretary [of the Interior! pursuant to his authority under section5 a! I! of the [Outer Continental Shelf Lands] Act to prescribe andamend at any time such rules and regulations as he may determine to benecessary and proper in order to provide for the prevention of wasteand for the conservation of the natural resources of the Outer Con-tinental Shelf . . . . [Form 3380-1. ,Sec, I, as amended November 4. 1969]

Prior to Santa Barbara the outer continental shelf lease form for oil andgas contained references providing that geological and geophysical activitiesconducted within the lease area must not be "unduly harmful to aquatic life,"and that the lessee must "carry on all operations in accordance with approvedmethods and practices including those provided in the operating and conserva-tion regulations for the Outer Continental Shelf."

The amended outer continental shelf oil and gas lease see ~ost, p. 503 !now provides that the lease is subject to:

[A]11 the provisions of the [Outer Continental Shelf Lands] Act andto all the terms, conditions and requirements of the valid regulationspromulgated by the Secretary of the Interior , . . . [Sec. I]

Further, the lessee is obli. gated to:

[C]onduct all operations under this lease in accordance with appl,i-cable law and regulations. [Sec. 3 f!],

The new lease form also added a section on indemnification, as follows:

[ Lessee shally indemnify and save the Lessor harmless against and from any andall claims of any nature whatever, including without limitation claimsfor loss or damage to property or injury to persons, caused by, or re-sulting from, any operation on the leased area conducted by or on behalfof the Lessee; Provided, that the Lessee shall not be held responsibleto the Lessor under this subsection for any loss, damage, or injury causedby, or resulting from: I! Any negligent action of the Lessor other thanthe exercise or performance of or the failure to exercise or perform!a discretionary function or duty on the part of a Federal agency or anemployee of such an agency, whether or not the discretion involved isabused; or �! the Lessee ' s compliance with an order or directive of theLessor against which an appeal by the Lessee under 30 C.F.R. 250.81 is filedbefore the cause of action for such a claim arises and is pursued diligentlythereafter.

The Regional Oil and Gas Supervisors for the Gulf Coast and PacificCoast regions have each promulgated an OCS Order No. 7 January Il, 1965,and March 31, 1965, respectively! which refers to the provisions of 30 C.F.R.$250.42 and provides here quoting from the Gulf Coast Region Order!:

All oil, gas, and sulphur operations shall be conducted in such a manneras to preclude the pollution of the waters of the Gulf of Mexico. Thedisposal of liquid waste materials in the waters of the Gulf shall belimited to salt water and other materials which have been adequatelytreated, when necessary for the removal of oil or other constituents whichmay be harmful to aquatic life or injurious in any manner to life or pro-perty. All mud containers and other non-liquid waste materials, which maybe harmful or hazardous to life or property, or which result in an un-sightly appearance, shall not be disposed of into the waters of the Gulf.

Immediate corrective action shall be taken in all cases whereaccidental pollution has occurred.

Lessees and approved operators in the Outer Continental Shelfare responsible for all leasehold operations conducted by drilling andother contractors and shall make certain that the contractors have beeninformed to comply with the requirements contained herein and any oralorder issued for corrective action by the supervisor or any of his au-thorized representatives.

The letter transmitting posters containing a blowup of OCS Order No. 7stated that:

Your cooperation is requested in posting the attached posters in yourfield offices having OCS responsibilities.

The posters are required to be in evidence offshore on all platforms,drilling vessels, crew boats and work boats. Compliance with this re-quirement will be included in inspections of lease operations by person-nel of this region.

Permits of the U.S, Army Corps of Engineers for work in waters super-jacent to the continental shelf provide:

If, in the judgment of the Chief of Engineers, the said permitteedoes not at all times exercise due caution in the handling of oil, gas,or other pollutive, noxious, or lethal substances to prevent conditions

502.

deleterious to health or sea food, or hazardous to navigation, or dangerousto persons or property engaged in commerce or otherwise on said waters, orfails on demand to remove promptly any structure or structures or partsthereof, no longer used for the purpose for which they are constructed,this permit may be revoked and all operations authori.zed by it may bete rm in a ted .

Note

I! Note that the provisions of the following acts are inapplicable toouter continental shelf operations: Water Pollution Control Act of 1948 P.L. 80-845!; Federal Water Pollution Control Act of 1956 P.L. 84-660;1961 amendment thereto, P. L. 87-88!; Water QuaIity Act of 1965 �9 Stat.903; P.L. 89-234!; Clean Water Restoration Act of 1966 80 Stat. 1246;P.L. 89-753!.

Aftermath of Santa Barbara.

Following the oil pollution disaster in the Santa Barbara Channel inJanuary-February, 1969, Secretary of the Interior Walter J. Hickel announcedthat changes would be made in the federal regulations governing continentalshelf operations and numerous bills for handling the problem of outer continen-tal shelf oil pollution have been introduced in Congress .

1. On March 21, 1969, Secretary Hickel issued an order by virtue of theauthority vested in the Presi,dent by the Outer Continental Shelf Lands Act[the Act provides that the President may "from time to time, withdraw fromdisposition any of the unleased lands of the outer Continental Shelf"] andpursuant to Executive Order No. 10,355, as follows:

Subject to valid existing rights, the following describedlands of the Outer Continental Shelf are hereby withdrawn fromall forms of disposition, including mineral leasing, and reservedfor use for scientific, recreational, and other similar uses asan ecological preserve:

[description of area]

The following described lands of the Outer Continental Shelf willbe withheld from leasing as an adjunct to the Ecological Preserve:

[description of area]

All persons, and particularly those engaged in comaercial and sportsfishing and other similar or related activities, are called uponto conduct their activities in the areas described above in amanner which will help to protect and preserve the values ofthis area for scientific study, recreation, and other similaruses for the benefit and enjoyment of this and future genera-tions. [34 Fed. Reg. 5655-5656, March 26, 1969].

2. On May 7 and June 27, 1969, notices of proposed rule making were publishedin the Federal Register concerning, respectively, oil and gas and sulphur opera-tions on the outer continental shelf [30 C.F.R. Part 250] and outer continentalshelf mineral deposits [43 C.F.R. Part 3380]. The proposed changes in OCS re-gulations were effected by publication, with some changes from the original

503.

proposal, in the August 22, 1969 Federal Register, Among the more significantmodifications is new Section 3381.4, concerning selection of tracts for leasingunder the Act, which now provides:

The Director [of the Bureau of Land Nanagementj prior to the finalselection of tracts for leasing . . . shall evaluate fully the potentialeffect of the leasing program an the total environment . . . . To aid himin his evaluation and determination he shall request and consider theviews and recommendations of appropriate Federal agencies, m~a holdpublic hearings after appropriate notice, and m~a consult with Stateagencies, organizations, industries, and i.ndividuals. 34 Fed, Reg.13549 August 22, 1969!. Emphasis supplied.!

Note that the provision for public hearing and consultation with state andlocal entities is precatory, not mandatory. Thus the new regulations affordno guarantee of state and local public participation in selection of OCS tractsfor leasing.

3. By notice given in the Federal Register on November 4, J.969, l.easeForm 3380- I "Oil and Gas Lease of Submerged Lands Under the Outer ContinentalShelf Lands Act"! was revised.

4- BilIs introduced in the 91st Congress �st Sess.! include the following:

a. H.R. 106l -- Would amend the Fish and Wildlife Coordination Actta require mineral operators in navigable waters to obtain a permitwhich would be issued after considerations relating to potential damageto or loss of wildlife or wildlife resources, or pollution.

b, H.R. 3120 -- Would create a buffer zone adjacent to the SantaBarbara oil sanctuary established by the State of California in whichmineral exploration or exploi.tation would be prohibited.

c. H.R. 7074 see also H.R. 9420, 10600! -- Would prohibit theleasing of submerged lands under the Santa Barbara Channel for explora-tion, development and removal of minerals, and would rescind all suchexi.sting mineral leases.

d. H.R. 145 -- Would authorize the Secretary of the Interior to studythe most feasible and desirable means of establishing certain portionsof tidelands, the outer continental shelf, and other areas as marine sanc-tuaries.

e. S. 1219 -- Would instruct the Secretary of the Interior to ter-minate all mineral activity in the Santa BarbaraChannel, to suspendall mineral activity off the California coast, and to undertake a studyconcerning elimination of the threat of pollution from outer continentalshelf operations.

f. H.R. 11226 -- Would prohibi,t outer continental shelf leasing southof Newport Beach, California, and would rescind existing leases in that area.

g. H, R. 10675 -- Would require a public hearing before issuance ofany outer continental shelf mineral lease at which all interested personsmight express any objections to such leasing.

h, H.R. 11857 -- Would prohibit leasing of submerged lands in Lake

Erie for exploration, development and removal of minerals, and to rescindall such existing leases.

[This listing is not intended to be exhaustive, but onlyexemplary.]

504.

2. [511.4] Radioactive waste ollution.

Statement of H. L. Price, Director of the Divisionof Licensing and Regulations, U. S. Atomic EnergyCommission, Hearings on Industrial RadioactiveWaste Disposal before the Special Subcommittee onRadiation of the Joint Committee on Atomic Energy 86th Cong., 1st Sess., 1959!.

In practice, the most common disposal methods and procedures used bylicensees, other than disposal by sewer and burial in soil as provided forin the regulations, are:

I. Return of radioactive waste to AEC installations.

2. Disposal at sea.

3. Treatment by incinerati.on.

4. Transfer to commercial disposal firms.

B. Disposal at sea: In 1954, the National Committee on Radiation Pro-tection's recommendations on radioactive waste disposal in the ocean were publishedin National Bureau of Standards Handbook 58. The Commission has generally fol-lowed these recommendations in issuing licenses for disposal at sea. In brief,the criteria provide that disposal shall be in a minimum of 1,000 fathoms ofwater and the waste shall be packaged in such a manner that under the condi-tions of handling and shipment the package cannot be easily damaged or brokenand will reach the ocean bottom without appreciable loss of contents. Thepackage must have sufficient density to insure sinking to the ocean bottom andmust have sufficient shielding to allow safe handling. The package must beappropriately labeled for identification purposes. Packages must conform toapplicable shipping regulations of the Interstate Commerce Commission and CoastGuard and conditions of the AEC license. There have been exceptions to theserecommendations with respect to depth of disposal on the meri.ts of individualcases,

The requirement for disposal of package waste in 1,000 fathoms of waterdoes not present a serious problem to licensees on the west coast of theUnited States because of the narrow shelf and the great depth of the PacificOcean at a relatively short distance from the coastline. However, it doespresent a serious economic problem for those on the east coast because of thelong distances �00 to 150 miles! the waste must be transported to reach theedge of the Continental Shelf and depths of 1,000 fathoms.

From technical information available, it now appears that low levels ofpackaged radioactive waste of the type and quality generated by source andbyproduct licensees could be disposed of in depths of water less than 1,000fathoms in selected areas on the Continental Shelf.

Because of the wide interest of licensees in disposing of low levels ofwaste in the Atlantic Ocean the Atomic Energy Commission, in cooperationwith the National Science Foundation, Fish and Wildlife Service, and Officeof Naval Research, has supported a study by the Committee on Oceanographyof the National Academy of Science to consider the feasibility of establishingdesignated ocean dumping areas along the Atlantic Ocean on the Continental

Shelf, Preliminary information indicates that a favorable report designatingsuch areas may be forthcoming i.n the near future. A simiIa study is beingconducted for the Pacific Ocean off the coast of Cal.ifornia. AEC licensingfor sea disposal will be reevaluated in light of these studies.

"Radioactive Waste Disposal into Atlantic and Gulf Coastal Waters"National Academy of Sciences -- National Research Council �959!, at 1, 2.

Because of the assumptions made all estimates of concentration ata given distance and time are probably higher by at least a factor of ten thanwould actually exist in practice, Even with these conservative assumptionscalculations show that given a rate of disposal of 100 curies per year of un-contained waste into water 30 meters deep with a current of 5 miles per day,the maximum concentration of waste which will appear one kilometer approxi-mately 5/8 miles! from the disposal site will be 2 x 10 uc/ml, a concen-tration that is lower than the maximum permissible concentration of Sr 90 indrinking water

Note

�! See "The Effects of Atomic Radiation on Oceanography and Fisheries,"National Academy of Sciences -- National Research Council �957!; "Disposalof Low-Level Radioactive Waste into Pacific Coastal Waters, " National Academyof Sciences -- National Research Council �962!; Hydeman and Berman, Inter-national Control of Nuclear Maritime Activities, 59-83 �960!.

"Pollution of the High Seas"Memorandum of the Department of State; May, 1957

[US/CLS/LEG/48�!, �!]

Article 48 [1956 draft of the International Law Commission]

2, Every State shall draw up regulations to prevent pollution of theseas from the dumping of radio-active waste.

3, All States shall cooperate in drawi.ng up regulations with a view tothe prevention oi pollution of the seas or air space above, resulting fromexperiments or activities with radio-active materials or other harmful agents.

Comment: Paragraphs 2. and 3. The problem of pollution of the seas dueto radio-active materials has only been recognized in the past few years.The closest problem to which it might be assimilated is pollution by oil, butit is a poor assimilation due to the much more complex political and scientificissues involved in pollution by radio-active materials. There has never beenany settled international law on the pollution of the high seas. The problemof pollution of the sea by oil started in the early part of the twentieth cen-tury. It causes many of the same results to a much more limited extent thanpollution by radio-active materials has been thought by some to have causedin recent years. Regardless of the fact that the problem of pollutio~ by oilhas been with us for many years, the only settled International Law on it isthat "a State whose domain is adjacent to the polluted area is not preventedby the law of nations from exercising a preventative jurisdictio~ on the high

506.

seas if it be capable of establishing a direct causal connection between dis-charges within a particular area of those seas and damages sustained within itsadjacent territorial limits," I Hyde, International I.aw Chiefl as Inter retedand A lied b the United States �nd ed., 1945! 757, para. 227B. Internationalbodies have given the matter increasing attention over the past few decadesand various States have passed legislation aimed at ameliorating its wastefuland unsanitary after effects, but the nations thus far {1957] have been unsuc-cessful in their efforts to regulate pollution by oil by general treaty or con-vention. No international tribunal has ever held a single state liable indamages for pollution of the sea or declared the existence of a duty to desist.The international regulation of pollution of the high seas by oil is at itsmerest inception. ISee] Trail Smelter Case, 3 UN Rep. International ArbitralAwards 1905, 1963, �938!. Pollution by radio-active matter is such a newproblem, that even though there have been many proposals for its regulationadvanced by different nations, the law on it is even more unsettled than thaton pollution by oil. This article is therefore a formulation of new law.

Neither of the problems of pollution of the seas by radi.o-active materialscan be considered as a proper subject for the law of the sea under the theorythat they should be assimilated to the problem of pollution of the seas byoil because they are based on an entirely different conception, Pollutionof the seas by oil is the result of discharges of ships traveling on the seas.Everything that these ships do that affect international rights are controlledby the international law of the sea as enforced by their flag state. Therefore,it would be within the scope of the law of the sea to set forth regulations toprevent ships from polluting the seas, the same as it is within their scope tomake regulations on the right of a ship to fly a certain flag.

But pollution of the seas by radio-active materials is not caused by shipswhich are regulated by the law of the seas, it is caused by experiments con-ducted by government'al departments that have no connection with the enforcementof the international law regulating ships. The departments causing this, arethose concerned with the defense and scientific development of the nation con-ducting the experiments. It is completely beyond the province of statesmenand 1 awyers who are formulating the law of the seas to attempt to regulatethe activities of these departments. Ef any regulations involving their ex-periments are going to be made, it must be done through an international con-vention conference! that is composed of the statesmen and scientists, whohave requisite techni.cal, scientific and political knowledge required to properlyformulate such regulations.

The first phase of this problem is the disposal of the radio-active wastematerials which result from both experimental and industrial uses of atomicenergy. Some nations, including the United States and Great Britain are usingthe waters of the high seas as a place of disposal of the radio-active wasteproduced in their countries. Scientists of both of these nations have beenstudying the effects of this disposal in relation to radio-active pollution ofthe high seas. Their findings, though not conclusive due to the short timethat they have been working on the problem and their present limited knowledgeof the oceans and water areas of the world, have shown that there is no problemof pollution at the present time due to the present rate of disposal of radio-active wastes. Regardless of this, the United States and Great Britain haveboth been regulating their disposals under the most rigid restrictions in orderto prevent possible pollution of the sea,

But the scientific groups working on this problem have warned that wi.th thegrowth and development of atomic energy by the industries of the world, a problem

507.

may result in the future which the nations of the world should be preparingfor at the present time. At a meeting of United Kingdom and United StatesScientists in September of 1956, the following was decided:

"The probable rate of development of atomic power on a world widebasis, is such that the problems of very large scale disposal will becomeimmediate and of rapidly increasing public concern only after a number ofyears. But this time interval of less than a generation is scarcely suf-ficient to g ain the necessary information about the oceans and its crea-tures." Report of a meeting of United Kingdom and United States Scientistson Biological Effects of Radiation in Oceanography and Fisheries, TreadwayInn, North Falmouth, September 27-28, 1956, p. 7-

This meeting produ ced the following recommendation on the disposal ofradio-active waste:

"We recommend that scientific liaison and cooperation among interestedcountries should be furthered by a joint committee of governmental andnongovernmental scientists under the auspices of appropriate scientificorganizations of each country such as the U.S. Nati.onal Academy of Sciences."R p ort, ~su ra, p, 8.

This same conclusion was reached by the Committee on Effects of AtomicRadiation on Oceanography and Fi.sheries in June, 1956. It is stated in theBiological Effects of Atomic Radiation, Summary Reports, National Academy ofSciences, National Research Council, p, 83:

"The world-girdling oceans cannot be separated into isolated parts.What happens at any point in the sea ultimately affects the waters every-where. Moreover, t".e oceans are international. No man and no nationcan claim the exclusive ownership of the resources of the sea. The pro-blem of the disposal of radioactive wastes, with its potential hazardto human use of marine resources, is thus an international one. !n cer-tain countries with small land areas and large populations, marine dis-posal of fission products may be essential. to the economic development ofatomic energy. We therefore, recommend: �! that cognizant internationalagencies formulate as soon as possible conventions for the safe disposalof atomic wastes at sea, based on existing scientifi.c knowledge; and�! that the nations be urged to collaborate in studies of the oceans andtheir contained organisms, with the objective of developing comparativelysafe means of oceanic disposal of the very large quantities of radio-active wastes that may be expected in the future."

The problem of radioactive pollution of the seas due to the disposal ofatomic wastes is very complicated. The leading atomic scientists in the worldare in dispute as to its effects and all of them admit that they cannot give afinal answer to the problem until further research has been conducted on it.

The complexities of the science of radiation in itself, without the state-ments quoted ~su ra by some of the leading authorities on the subject shouldshow that the problem of pollution of the seas by the disposal of radioactivewaste is beyond the province of statesmen and lawyers, versed in internationallaw, but not in the science of radiation, who are formulating the law of theseas. Although it is not considered an immediate problem, it may eventuallybecome a quite serious problem upon which the nations of the world will haveto formulate laws. But these future laws wil,l have to be formulated by states-men in conjunction with people who have the greatest technical understanding

508.

of the facts involved, i.e., the scientists who are studying the effects ofatomic radiation.

The Sci.entific Committee of the United Nations has been working on theeffects on Atomic Radiati,on. In order to have proper regulations formulatedfor the disposal of radio-active wastes, the United Nations should create acommittee to do thi.s i.n accordance with the suggestions made by its ScientificCommittee, In that w'ay, the problem of pollution could be handled on a con-tinuing basis. The laws on this problem would then be formulated by statesmen,who have an understanding of the political issues involved, and working withthem would be the nuclear scientists, who have an understanding of the verytechnical scientific problems involved.

The second phase of this problem involving experimentation with radio-active materials is even less related to the law of the sea than that of dis-posal of radio-active wastes because it has more far reaching effects. Itnot only involves the waters of the seas and the air above them, but i.t alsoinvolves all of the land masses of the world and the air above them. Mhen athermo-nuclear explosion takes place, the fall-out tha t results from i.t notonly settles on the water or land beneath it but the wind currents circulate itthroughout the world and for years the fall-out continues over land areas whichare many thousand miles from the actual explosion. If the nations which areconducting their thermonuclear tests in the high seas should stop testing thereand start to do it on land as some other nations like the Soviet Union, whichhave large areas of barren land are doing at the present time, the problemwould not be solved. It can only be solved by an effective armaments conferencein which the nations which are testing on the seas and the nations which aretesting on land agree to discontinue their tests or to conduct them under re-gulations set forth by such a conference.

It would be virtually impossible for the United States to continue testson its own land on account of the limited space w'hich it ha s available to dothis type of work. The United States would have to clear an area equivalentto one-seventh of its total continental limits. It would be possible for itto conduct the tests in some other area of the world that is not used at thepresent time, but as stated above this would not solve the problem of pollu-tion. The tests would have to be continued some where, as long as the threatis present of othernations surpassing the United States in knowledge of ther-monuclear weapons.

Since the first conference on atomic weapons, the United States has main-'tained the position that it cannot stop thermonuclear tests until a solutionhas been found to the worldwide problem of disarmament. The policy of theUnited States as expressed by the Department of State on the regulation ofthermonuclear tests is tha t the only proper place for it to be discussed isin a disarmament conference. At the Foreign Ministers Conference in Genevaon November ll, 1955, Secretary of State, Mr. Dulles, when speaking about dis-armament said that if agreement can be reached toeliminate or limit nuclearweapons under proper safeguards, the United States would be prepared to agreeto corresponding restrictions on the testing of such weapons.

The Assistant Secretary for International Organization Affairs, FrancisO Rilcox, stated that if a disarmament agreement can be reached to limitnuclear weapons under proper safeguards, the United States would, of course, beprepared to agree to restrictions on the testing of such weapons. Dept. ofState Bull. Vol. XXXV, No 890, p. 97, 104.

509.

The United States position on this question was quite ably set forthin the United Nations Disarmament Commission on July 13, 1955 by AmbassadorWadsworth. At that time he stated:

"On the basis of this careful considerati.on, the United States believesthe question of nuclear weapons is necessarily related to the larger ques-tion of agreeing on a meaningful disarmament program, The questions are infact inseparable, if we are to deal with the real issues involved. Limi-tation on the testing of nuclear weapons is logi.cal, enforceable and soundfrom a security standpoint only as an integral part of a disarmament pro-gram in which we have agreed to limit the nuclear threat itself." Dept.of State Bull. Vol. XXXV, No. 892, pp. 205, 206.

There were two conclusions reached by President Eisenhower in the WhiteHouse Press Release of October 23, 1956:

"First. We must continue -- until properly safeguarded internationalagreements can be reached -- to develop our strength in the most advancedweapons -- for the sake of our own national safety, for the sake of allfree nations, for the sake of peace itself.

"Second. We must -- and we shall continue to strive ceaselessly toachieve, not the illusion, but the reality of world disarmament. Illusionin this case, can assume either of its forms. It can mean reliance uponagreements without safeguards. Or it can be the suggestion that simplesuspension of our nuclear tests, without sure knowledge of the action ofothers, signifies progress -- rather than peril,"Fitzmaurice stated before the Sixth Committee of the General Assembly that:

he thought this was fundamentally a question of disarmamentrather than question of the law of the sea." United Nations pub.A/C.6/SR,492.All of the proposals made by different nations including numerous ones by

the United States and the Soviet Union for the stopping of thermonuclear testshave been treated by the United Nations ss a disarmament question. These pro-posals have all been given by the United Nations to the Disarmament Sub-Committeefor consideration.

The arguments set forth by those nations which want to treat this programas other than a disarmament question are based on fallacies,

The first argument presented by them is that it violates freedom of theseas because a nation conducting thermonuclear tests on the high seas isexercising sovereignty over an area of the high seas. But the nations usingthat argument are overlooking the fact that freedom of the high seas is nota compl.etely unlimited doctrine Through the years since the inception ofthe doctrine, there have been many exceptions to unlimited freedom of thehigh seas. One limiting . actor is the right of warships to stop and searchvessels suspected of piracy on the high seas. A second limiting factor isthe undisputed right of nations to co~duct wars on the high seas, whichprevents neutral nations from using certain areas of the high seas whereactual hostilities are taking place. The conducting of thermonuclear testsin a small area of the high seas is a much less significant limitation onthe freedom of the high seas than the conducting of a war over the entireare of the high seas as was done in World War II. When a war is being con-ducted on the high seas, there is no notice to neutrals that a battle is goingto take place at a certain spot and for them to avoid that area, but

when thernrnuclear tests are conducted, the entire world is put on notice bythe nation conducting the test as to the e'ea involved. Furthermore, whenthe United States has conducted these tests, it has done it in the leastused areas of the high seas.

A second argument put forth i.n favor of treating the thermonuclear testsas sub]ect to the law of the sea is that as more nations progress in thedevelopment of thermonuclear knowledge, there will be more nations using thehigh seas for experimentatian, which will cause conflicts. This argumentsubstantiates the United States view completely, because the prevention ofwars is not a problem of the law of the sea. Zt is a problem that can onlybe eliminated by a conference settling the disarmament question. Untilthe nations of the world agree to exclude the use of thermonuclear weapons,they will continue to experiment in impr'oving those that they now have, as amatter of self-protection. The only way that there will be an exclusion oftheir use is through a disarmament conference which will alleviate the presentfear that one nation has better thermonuclear weapons than another.

A third argument which has been used for treating thermonuclear experimentsunder the law of the sea at the present time is tha t there is na need to waitfor the reports of various scientific organizations, like the Scientific Committeeof the United Nations, which are studying the effects of thermonuclear testing.How can it be said that the sea and air are being polluted unless the scien-tists working on this question find that they are being polluted'? If they arenot being polluted there is certainly no problem involved and no regulationsneed to be made. As the problem stands at the present time, no aut'horitativereports have been produced which show that there is any danger from the presentrate of testing of thermonuclear weapons. In fact all the reports have beento the contrary, The nations using this argument say that the harmful effectsof radioactive dust are sufficiently well known. That is true but there is noproof that the present testing has had any adverse effects on human health dueto sn over amount af radioactive dust generally polluting the sea and air ofthe world. It is anly with the knowledge of these scientific bodies, that pro-per regulations wi.ll be able ta be formulated.

The fourth argument used to include thermonuclear testing under the lawof the sea is that it endangers human life and threatens wars. What couldbe a better argument for it being a disarmament question than this? The factthat something threatens war certainly is nat a problem for the law of thesea. The main purpose of a disarmament conference is to settle this type ofproblem,

Therefore, the proposed article of the International law Connnission onpollutian of the high seas by radioactive materials far exceeds the limitsof the work which it is supposed to do, that is to codify the law of the sea.There is no problem of pollution due to thermonuclear testing at the presenttime, as has been shown by the most authoritative scientific reports presentedso far. If such a problem should present itself in the future, the only waythat it could be settled is through a complete abolishment of or proper regu-lation of thermonuclear testing which would have to be the result of a dis-

armanent conference.

Convention on the Hi h SeasU.N. Doc. No. A/CONF.I3/L.53

Article 25

l. Every State shall take measures to prevent pollution of the seas from thedumping of radio-active waste, taking into account any standards and regula-tions which may be formulated by the competent international organizations.

2, All states shall cooperate with the competent international organizationsin taking measures for the prevention of pollution of the seas or air spaceabove, resulting from any activities with radio-active mater'ials or otherharmful agents.

Resolution Adopted at the 1958 United Nations Conferenceon the Law of the Sea

II Official Records l43-144 April 23, 1958!

The United Nations Conference on the Law of the Sea,

of radio-active wastes in the sea,

Takin into account action which has been proposed by various nationaland international bodies and studies which have been published on the subject,

~Notin that the International Commieaion on Radiological Protection haamade recommendations regarding the maximum permissible concentration of radio-isotopes in ihe human body and the maximum permissible concentration in airand water,

Recommends that the International Atomic Energy Agency, in consultationwith existing groups and established organs having acknowledged competencein the field of radiological protection, should pursue whatever studies andtake whatever action is necessary to assist States in controlling the dis-charge or release of radio-active materials to the sea, in promulgating stan-dards, and in drawing up internationally acceptable regulations to preventpollution of the sea by radio-active materials in amounts which would adverselyaffect man and his marine resources.

3. [511.5I Thermal ollution,

Except in connection with the disposal at sea of radioactive wastes�11.4 ~su ra! there has been no legislation national or international! onthis topic. It seems likely, however, that consideration of the effects ofthermal pollution will ultimately result in some control or regulation inthe area.

Notes

I! This problem was considered at the second Thermal Workshop of theUnited States International Biolcgical program held in Washington, D. C. inNovember, 1968. The chairman of the workshop, Dr. Joseph A. Nikrusky

Chesapeake Biological Laboratory! indicated that although thermal poll.utionwas not a major, widespread problem, nonetheless excess heat could kill ordamage plant and animal life in the marine environment. See Edwards, "LegalControl of Thermal Pollution," 2 Nat. Res. La er No. 1! �969!.

�! For an i.ndication of federal government plans in this area, see thearticle appearing in the New York Times on Sunday, February 22, 1970 page I,col. 6! entitled "U.S. Making Initial Move Against Thermal Pollution." Theinitial action was reported 'to be a request by the Federal Water PollutionControl Administration to Florida's biggest electric company to stop excessivedischarges of hot water from a generating plant into Biscayne Bay. Accordingto the report, the discharges "have done 'severe damage' to fish and marineplant life in the bay." The article further observed:

In colder waters . . . heat is absorbed more readily. But whilefish can tolerate sizeable seasonal temperature ranges, a permanenttemperature change as of little as four degrees may exterminate them.

Heat adversely affects fish in many ways while i.t reduces the amountof oxygen in water. Heat speeds up their metabolism so they have tobreathe faster, slows them down in pursuing food, and inhibits repro-duction.

It may also kill normal vegetation and stimulate the growth ofalgae, disrupting the plant-fish-insect-bird "food chain" underlyingthe ecology the relationship between organisms and the environmentof an area!.

4. [ill.6] Aesthetic ollution.

The focal point for the fight against aesthetic pollution has been theSanta Barbara Channel, offshore Southern California. Substantial publicopinion had been raised in opposition to offshore mineral development in t'hisarea, even before the oil pollution incident of January-February, 1969.

Ed. Note California le isl,ation. California Public Resources Code5687I.2 provides:

Except as provided in Section 6872 and 6872.1 of this Code the[State Lands] [C]ommission shall not enter into any lease for theextraction of oil and gas from state owned tide and submerged landswithin the areas to which this section is applicable.

The most important area of application was that lying offshore Santa Barbaracounty, which area was adjacent to the tracts offered for lease by thefederal government in February, 1968. It should be noted that Sections 6872and 6872.1 of the Public Resources Code provide:

Tide and submerged lands other than thoe which may be leasedunder Section 6871.2 [general leasing authority for selected tide andsubmerged lands, excluding the sanctuary areas] and Section 6872.1[permitting leasing of sanctuary areas in the event of drainage] maybe leased by the commission if t' he commission shall determine �! thatoil and gas deposits are believed to be contained in such lands,�! that the same are being drained by means of wells upon adjacentlands, and �! that the leasing of the same for the production of oil

513.

and gas wi.ll be in the best interests of the State." Pub. Res. C, $6872.

Whenever it appears to the commission that oil and gas deposits areknown or believed to be contained in any such lands as are described inSection 6871.2, subdivision b!, of this code [i.e., the Santa Barbarasanctuary! and are being drained by means of wells upon adjacent landsowned by others than the State, the commission shall thereupon be authorizedand empowered to lease state-owned tide and submerged lands adjacent toany such wells for the production of oil and gas therefrom, either as atract or in parcels of such size and shape as the commission shall deter-mine but only within an area and to an extent necessary to offset suchdrainage of state-owned tide and submerged lands by any such wells uponadj acent lands owned by others." Pub. Res. C- $6872. l.

Ed, Note: Federal le islation and re ulation. OCS Order No. 9 issuedby the West Coast Regional Oil and Gas Supervisor provides that approval offixed platforms in the Santa Barbara Channel area wi.ll be based on the fol-'owing conditions:

1. No platform will be approved for less than 20-well completions,except a platform requiring a lesser number of wells as fully justified byprevious exploratory drilling and upon approval by the Supervisor of ageological and engineering report submitted by the lessee. The purposeof this provisi,on is to minimize the total number of platforms constructedin the Santa Barbara Channel.

2. Each platform receiving approval will be subject to a designwhich will give the best appearance available to the industry.

3. The platform will be camouflaged by paint.

4. And subject to such other conditions as the Geological Surveymay require to enhance the aesthetics of platform installations. January 3, 1968!.

Two bills introduced in the 90th Congress are symptomatic of the concern overouter continental shelf operations and the possible establishment of marinesanctuaries there. H.R, 11584 would authorize the Secretary of the Interiorto s tudy the most feasible and desirable means of establishing portions ofthe outer continental shelf, among other areas, as marine sanctuaries. Thebill contains a finding that the outer continental shelf, being a multipleuse area, is in danger of damage or destruction by commercial and industrialdevelopment alone and that it be the policy of Congress "through a system ofmarine sanctuaries, to preserve, protect, encourage balanced use, and where pos-sible, restore, and make accessible for the benefit of all the people, selectedparts of the . . . Outer Continental Shelf . . . which are valuable for sportand commercial fishing, wil.dlife conservation, outdoor recreation, and scenicbeauty." Section 4 of the bill provides that:

Until such time as he submits the report required by section 5 ofthis Act, the Secretary of the Interior shall not issue or renew anylicense, permit, or other authorization for the exploration, development,mining, or other removal of any minerals including oil and gas! fromany part of the Outer Continental Shelf under study as a possiblemarine sanctuary,

During such study period the Secretary is authorized to cooperate with

ai] affected Federal, State, local and international organizations inorder that, until the completion of such study a moratorium on the indus-trial development of any portion of the tidelands, Outer Continental Shelf,seaward areas, and the land and water's of the Great Lakes under considera-tion aa a possible marine sanctuary may be agreed upon by such interestedparties.

Bill S. 3267, entitled "a bill to prohibit mineral exploration and developmentin certain outer continental shelf lands lying off the coast of California,"provides:

except as provided in this Act, the Secretary of the Interiorshall not permit any mineral exploration or development under the OuterContinental Shelf Lands Act . . . within a buffer zone adjacent to theSanta Barbara oil sanctuary established by the State of Cali.fornia

Sec. 2. If the secretary finds that drainage is occuriing from suchzone because of activities on non-Federal lands, he may permit mineralexploration and development in all or part of the zone under said Actand in accordance with such regulations as he may prescribe."

Notes

�! At the time of the February, 1968, outer continental shelf leasesale in the Santa Barbara Channel, a buffer zone of federal submerged landstwo miles wide and extending the length of the Santa Barbara sanctuary wasexcluded from the area offered on a voluntary basis by the Department of theInterj, or.

�! It should also be noted that strict regulations concerning physicalappearance were imposed on offshore drilling installations in Long BeachHarbor Long Beach, California!.