An Environmental Appraisal of the Law of the Sea Conference

The first session of the Third United Nations Conference on the Law of the Sea ended in Caracas, Venezuela in late August without reaching agreement on a single article of a convention on the law of the sea. The Conference is scheduled to reassemble for another two month session in March, 1975 at Geneva, and the conferees left open the possibility of a return to Caracas next summer for final negotiations and signing of a treaty. While the governmental members of the United States delegation are displaying optimism in their public statements about what was achieved at Caracas, there is considerable discouragement in most other quarters about the prospects for the timely conclusion of an acceptable treaty. The anxiety of environmentalists is particularly acute.

Even by United Nations standards, the Third Law of the Sea Conference is a monumental undertaking in international diplomacy. One hundred and fifty nations are searching for common ground on a staggering variety of highly technical issues with global political and economic implications. Their goal is to transform the oceans into a "common heritage of mankind" governed by a comprehensive scheme of international law and administration that touches on every phase of human activity in or on the seas. While it is widely agreed that only a treaty that deals with all oceanic activity can properly and effectively accommodate mankind's diverse interests in the oceans, the very number and complexity of the terms to be negotiated may prove to be the critical impediment to the conclusion of a treaty that can enjoy widespread international acceptance.

Since the focus of this Comment is on the environmental dimensions of the law of the sea, it will summarize only briefly the related topics of regimes for resource exploitation and the character and extent of national jurisdiction in the oceans.

Informal agreement has been reached on the fundamental question of the breadth of territorial jurisdiction upon which the earlier law of the sea conferences foundered.¹ The limit of the territorial sea, within which a state exercises most of its sovereign rights, will be set at 12 miles. Extending outward for another 188 miles (to a distance of 200 miles from shore) will be an economic resource zone. One of the principal points still to be negotiated is the precise character of coastal state jurisdiction within this zone. The United States desires a regime in which the coastal state has powers only over the economic resources of the area; at the other extreme are those states known as "territorialists" who would like the economic zone to be as fully under coastal state control as is the territorial sea. Tough negotiation also lies ahead on the subject of free passage through straits falling within the territorial seas of one or more states.²

With regard to fishing, the emerging consensus is that the coastal state will have priority in exploiting the fish resources of its economic zone, with special reservations for anadromous fish (like the salmon) and migratory fish (like the tuna). There is considerable discussion also of a concept of "full utilization," under which a coastal state that does not exhaust the sustainable yield of the fisheries off its coast will be obligated to allow other states to exploit them up to the limit of their sustainable yield.

The legal and economic problems associated with deep-sea mining for manganese nodules continue to be intractable. The United States position, supported by our domestic mining companies, is that deep-sea mining should be done by private entrepreneurs under licensing agreements with the international authority to be created by treaty.³ Moreover, the United States wishes to have the details of the licensing procedures spelled out in the treaty itself, including guarantees against expropriation.

The developing countries, who hold the vast majority of votes at the conference, see in the United States proposal a self-serving scheme to promote the exploitation of sea-bed minerals by industrialized nations. They are firmly insisting upon treaty provisions which will place the control over sea-bed resources directly in the hands of the international authority, including the right of the authority to engage in mining those resources itself. They would leave it up to the authority to promulgate its own rules under which private companies might enter into service contracts with it for extraction of the minerals. To [4 ELR 10174] American interests, this constitutes an unacceptable regime of international monopoly power.

Each of the above-mentioned topics has important environmental ramifications, yet under the procedural scheme of the Conference, the debate over deep-seabed mining has occurred in Committee I, the resolution of jurisdictional issues is the province of Committee II, and the discussion of specific measures of environmental control has been allocated to Committee III,⁴ along with the topic of scientific research. The result has been that Committee III has quite consciously adopted a subsidiary role of formulating its positions on these issues in light of the trends of the negotiations in Committees I and II.

The conceptual framework within which Committee III has discussed environmental issues divides pollution into four categories: land-based pollution, pollution of the continental margin, pollution of the deep-seabed, and vessel-source pollution.

There is considerable hope that a treaty will include a general obligation upon states not to pollute the oceans from their land-based sources. It is likely, however, that this obligation will be stated so broadly that it will add little to such statements of international principles as the Stockholm Declaration on the Human Environment. The adoption of specific, enforceable standards will be left either to an international authority created under the treaty or to determination by yet another international conference.

However, two proposals, if adopted, would emasculate the duty not to pollute from land-based sources. One is a specific declaration that no liability could be imposed on a state for its failure to conform to the obligation. The other would set forth a double standard for land-based pollution by which developing countries would be exempted from the obligation. On this second point, environmentalists concede the unfairness of a uniform obligation. They would however, prefer schemes of technical assistance or financial compensation to mitigate the burden on the developing countries over the exemption afforded by the double-standard proposal.

Pollution in the area of the continental margin, or continental shelf — as from off-shore oil drilling — will hopefully also be the subject of a broadly phrased international standard of environmental protection. Beyond that there is little hope for international agreement. The continental margin will be within the economic zone of the coastal state, and therefore subject to its national jurisdiction to some degree. The potential for pollution in this zone arises from the very types of economic activity over which the coastal state will certainly be given control. That is, the adoption of specific international standards of environmental regulation within this zone would be an intrusion into the sphere of economic activity the national control of which is the primary purpose of the economic zone. In this context, it is regarded as highly improbable that states — and particularly the developing states — will be amenable to any enforceable system of international standards.

There is no doubt that under a treaty, the deep seabed will fall under international jurisdiction; thus, prospects are good for some specific environmental regulations promulgated by the international authority. The problem which environmentalists perceive in this region is one of short duration but potentially serious consequence: the initiation of deep-sea mining before environmental regulations become effective. Companies that have been engaged in a vigorous program of developing deep-sea mining technology are impatient to begin operations. They have successfully brought pressure to bear on the United States to promote the idea of "provisional entry into force" of those articles of the treaty dealing with deep-sea mining. Provisional entry into force means that the articles would become effective as international law at the time the treaty was signed without awaiting ratification by the specified number of nations. Since ratification by a sufficient number of states to make an international convention come into force often takes five or ten years, and since the international authority would be constituted and would begin the work of preparing environmental regulations only after the treaty comes into force, the time period during which the mining companies would be operating without the constraint of environmental regulations could extend for ten or fifteen years, at a time when our understanding of the ecological impacts of those operations will be limited.

Vessel-source pollution is the primary focus of efforts at oceanic pollution control.Although land-based sources contribute a much larger proportion of pollutants than do vessels, the national and international control of land-based pollution is extremely complex. From a national point of view, the number and variety of sources presents difficult standard-setting and enforcement problems. In the case of international controls, the major stumbling-block is the doctrine of national sovereignty — the fear that international controls will reach too deeply into the nation-state economically and geographically. By contrast, the number of vessels in oceanic commerce is comparatively small, the causes of pollution and the means of controlling them fairly universal, and the jurisdiction of international law over maritime commerce well-established.

There are four jurisdictional foci for vessel-source pollution control — international agencies, coastal states, port states and flag states. The historical pattern has been to vest in the flag state — the state of the ship's registry — sole jurisdiction to set standards and enforce them. More recently, especially since the formation of the Intergovernmental Maritime Consultative Organization (IMCO), international setting of standards has become common-place, but the jurisdiction to enforce these standards still rests with the flag state. Coastal state jurisdiction, [4 ELR 10175] as exemplified by Canada's legislation to prevent pollution of its Arctic waters.⁵ is anathema to international law. It conflicts with the doctrine of freedom of the high seas and raises spectres of an unmanageable variety of separate national standards. Port state jurisdiction — the jurisdiction of a state at which a vessel calls to establish and enforce its own standards — is a new concept in this area; broad international acceptance of it as part of the law of the sea treaty is unlikely.

In the area of standard setting, the trend at Caracas was away from any allowance for coastal state jurisdiction whatsoever. This was most noticeable with regard to design, construction and personnel standards for ships, the maritime powers insisting that it would be impossible to operate in a system of varied and conflicting standards of ship construction subject to alteration without notice. Rejection of the coastal-state standards approach means a continuation of the present regime of international standards. Although IMCO has given some attention to environmental considerations in the past few years, the prevailing atmosphere in the setting of international standards has been to set them at the level of the lowest common denominator. Allowing the state in which a ship is constructed to set a higher standard has proved to be a chimerical option. The United States Coast Guard, for instance, proposes to set the American shipbuilding standards at the low level of those adopted by IMCO, alleging in part considerations of international competition in shipbuilding.⁶

On the question of enforcement jurisdiction, several states offering compromise departures from the traditional rule of exclusive flag-state jurisdiction, including the United States and Canada, have thus far failed in their attempts to reconcile their compromise positions among themselves. However, negotiators are continuing to seek an agreement to alter the rule in subsequent sessions of the Conference.

A bellwether issue in the field of international environmental law is the setting of standards of liability for environmental damage. The issue of liability is often the test of a nation's sincerity in its public commitment to sound environmental regulation. Therefore at least one American delegate at Caracas takes it as a bad omen that that issue was not even discussed during the many weeks of debate in Committee III.

1975 will be a critical year for the law of the sea. If a treaty is not agreed upon by the end of next summer, the pressures for unilateral action in the United States (and in several other countries) will become irresistible. Once a pattern of unilateral action has been established, it will be many years before the nations of the world will be ready to come together again to draft an international regime for the seas. Ambassador Stevenson, the head of the United States delegation, who has taken a strong stand in opposition to unilateral measures being considered by Congress in this session, has stated openly that the opportunity for negotiation of a treaty is now most favorable, and that it will be "all downhill" after 1975. The National Advisory Committee on Oceans and Atmosphere has put the issue more bluntly: "We advocate patience, especially in the matter of fisheries rights and jurisdictions, but not beyond 1975 if no international agreement is reached by then."⁷ Congress is already restive, but in view of these clear expressions that 1975 is the deadline for conclusions of a treaty, there may be no unilateral action this year.

Although those who have supported strong environmental controls on activities in the oceans have generally favored an international approach as affording the best opportunity for universal and comprehensive regulation, the discouraging results of Caracas are forcing a re-evaluation of this internationalist preference. There is a growing sense that no treaty at all may be better than a treaty with weak environmental standards. The treaty, if concluded, will have a long life, and significant amendment of it in the future will be difficult. If a treaty with weak standards is concluded and ratified, it could become the greatest obstacle to future effective action to protect the oceans. In view of this prospect, the flexibility of unilateral action in a regime of ocean law unencumbered by a treaty has a strong appeal. It will remain to be seen whether these thoughts will find their expression in environmentalist opposition to the ratification of a treaty by the United States Senate.

The lessons for environmentalists from the Caracas conference are grim. On an international scale there is scant appreciation of the environemtnal problems of proper ocean management and even less interest in the political effort of negotiating meaningful and enforceable standards. The attention of the delegations is directed instead to matters of exploiting the resources of the seas, especially fish and minerals, and of acquiring the greatest possible national control over those resources in the 200-mile zone. The shape of any environmental standards that are adopted will be determined by the regime of exploitation that is agreed to. Thus, notwithstanding the appeals of men like Thor Heyerdahl and Jacques Cousteau, who have witnessed the visible deterioration of the oceans within their lifetimes of research, international action to affirmatively protect and repair the marine environment will not be part of any treaty that might be concluded in 1975. In spite of the global character of the ocean ecosystem, the leverage of the environmental movement might indeed best be applied to national legislation to protect the coastal environment of the United States and other developed nations and to regulate the world-wide activities of their interests in, on, and beneath the oceans.

1. These conferences, the First and Second U.N. Conferences on the Law of the Sea, convened in Geneva in 1958 and 1960. The 1958 conference produced three conventions: Convention on Fishing and Conservation of Living Resources of the High Seas, Convention on the Territorial Sea and the Contiguous Zone, and the Convention on the High Seas. The 1960 conference, called specifically to resolve the issue of the breadth of the territorial sea, ended unsuccessfully.

2. Many key straits, including the Straits of Gibraltar and Malacca, will come within the territorial seas of certain states. The Department of Defense, of course, is particularly determined to maintain free passage for naval vessels.

3. It is assumed by all participants that activities in the deep sea area, that is, all waters beyond the 200-mile limit, will be supervised by an international authority if a treaty is concluded.

4. Each of these Committees is a working group composed of delegates from all 150 nations.

5. Arctic Waters Pollution Prevention Act, S.C. 1970 c. 67.

6. 39 Fed. Reg. 24150 (June 28, 1974); N.Y. Times, August 29, 1974, p. 6, col. 3.

7. National Advisory Commission on Oceans and Atmosphere, Third Annual Report 27 (1974).